NPS says that Pennsylvania Avenue is "DC's jurisdiction"

Pulled up (and edited) from the comments. Greenbelt reports on Wednesday night's Pennsylvania Avenue meeting hosted by NPS.

The meeting sponsored by the NCPC included a presentation by the NPS about their proposal to use a non-profit agency -- significantly hinted to be the Downtown Business Improvement District or BID -- to administer/coordinate  the maintenance and operation of PA Ave.  The NPS rep kicked off the meeting by saying that this new proposal had nothing to do with bicycling safety, that transport safety on the roadway was DC's jurisdiction.  She implied that the large number of cyclists in attendance were sort of misinformed about whether this meeting would address bike safety issues on the roadway.  However, by the end of the meeting, it was very clear that NPS and the Fine Arts Commission wanted to retain a very strong influence on the character of the roadway, and that any changes should be approved by them.  

First, the NPS presentation was extremely murky.  NPS has jurisdiction over the sidewalks, parks and furnishings along the route.  DC has jurisdiction of the roadway for transport purposes.  NPS seems to want the BID to provide day-to-day maintenance and upkeep services, and to coordinate repairs and improvements.  They suggested that the BID could act as an intermediary, helping groups get permits from DC and NPS for events (Bike DC?) and coordinate repairs and improvements with DC and NPS as needed.  I believe the idea is that NPS is essentially admitting that they are unable to meet the vision that was laid out in the original PA Ave Development Corp vision, including making the avenue a more commercially and social vibrant space, and making it less of a barrier between the government/monumental side and the downtown.  NPS explained that their mission doesn't typically go beyond preservation and conservation, and that much of the PA Ave Development Corp's vision was beyond their scope in many respects.  Having the downtown BID be more formally involved, could help improve PA Avenue and reduce frustrations with NPS processes that aren't really suited to urban and community development.

How all this would work was quite unclear, but in general, my impression was:  So far, so good.

However, in the questioning, folks from WABA, local bike shops etc. asked about the bike lane safety, and specifically, whether DC truly had jurisdiction over the roadway and thus could go ahead and reinstall barriers to prevent illegal u-turns.

The answer seemed to be that NPS, the Fine Arts Commission and other stakeholders wanted de facto veto power over such improvements, and expected to have an "advise and consent" function as stakeholders of the Avenue.  So while they seemed to say that DC had jurisdiction and that they couldn't legally prevent DC from making safety improvements, they expected to be consulted and expected that DC wouldn't do anything without their approval. The implication was that if DC did make bike lane improvements without their sign off, that DC would face some consequence, although what the consequence would be wasn't clear.

Got it?  DC can do what it wants to improve safety.  Except they can't.  Sort of.

So Pedro Ribeiro who said on one of the TV news reports that DC couldn't improve safety for bikes on the Avenue because it would be illegal and that would be breaking the law was apparently wrong ["“We don't have the jurisdiction, we can't do that,” says Pedro Ribeiro, Director, D.C. Office of Communications. “You can't break the law. While it may feel good to say ‘sure, just put them in,’ what would happen is we'd have to tear them back out again.”].  DC does, according to last night's presentation, seem to have the jurisdiction to make safety improvements.  

Overall, I was pleased that NPS was considering handing over some responsibility for the road to the BID, because the BID might have a lot more money and know-how, and energy to continue to improve the avenue in all dimensions.  However, it still seems like DC and the feds are pointing at each other over who has responsibility for the needed safety improvements.  

In my opinion, what really needs to happen for PA Ave to be a truly grand ceremonial avenue, as envisioned by past and current plans, is to go back to 3 traffic lanes instead of 4 in most place, and re-separate the median bike lanes like they were originally.  That would allow the Avenue to breathe, give pedestrians more haven space without conflicting with bikes, and provide plenty of space to design high-quality and view enhancing anti u-turn barriers.

I'll add that if the bike lanes were restored to their original design, the incentive to make U-turns might go down since drivers would now have to turn across three lanes to do so, but maybe not. As for the Downtown BID taking over, having the former director of WABA serving as the Downtown BID's transportation director would probably lead to as bike friendly a boulevard as the powers will allow. 

Comments

[turtleshell]

So when I get run over and killed by a u turning driver do I sue the NPS and Fine Arts commission for a road they know is unsafe or the city?

[Greenbelt]

I'm no lawyer, but it seemed clear from the meeting that transport safety is DC's responsibility alone. NPS and the Fine Arts commission "expected" to have a consultative role, but clearly denied responsibility.

[Meme]

Hard to sue anyone if you're killed, dude.

[Paytonchung]

Thomas Jefferson's designs for Pennsylvania featured a gravel trail in the center (meant for horses without carriages), with carriageways on either side:
http://www.flickr.com/photos/41813589@N00/6196568657/

If we were to resurrect that design, I assume that CFA would complain that the double allee of trees in the center would obscure the view towards the Capitol.

[darren]

Estates sue. And mine would hopefully sue DDOT, who knows about the problems in their design, has the engineering knowledge and authority to fix them, and has moved at a glacial pace to do so.

Federal agencies have sovereign immunity, meaning you'd have to convince the DOJ that they're lawsuitworthy, and since each has been publicly coy about whether/how much they detest bollards, probably no liability there.

[Ranpuba]

It's even more nuanced than that with regard to DC road improvements.

When NPS initially said that DC could consult with NPS and CFA in an advisory capacity, they were actually talking about NPS' relationship with CPA.

While DC has jurisdiction over the street, NPS implied that the CFA legislation may apply differently to the DC, that's why it's "illegal" for DC to make improvements without CFA approval.

Further more, NPS eventually stated while CFA theoretically only has "advise and consent" powers, NPS almost never proceeds without CFA's approval.

[SJE]

Sorry, but its pretty much impossible to sue the government under these facts. Sovereign immunity applies to ordinary functions of government, allocation of resources, etc. You cannot sue because the government chose to spend resources elsewhere. The classic case is where a woman was horribly raped and sued because the city had insufficient police and lighting, and knew about the issue. She lost.

PS: I personally think the case law gives TOO much leeway to governments, and lets them be very negligent. But that is not the law

[JimT]

Doesn't the federal tort claims act waiving sovereign immunity apply to DC? State road agencies occasionally are found negligent.

That said, a court might well find dismiss on the grounds that there is no duty for highway agencies to put up barriers to prevent illegal U-turns.

I think that a door-zone bike lane case would have a better chance. It's hard to see how a court could hold that road agencies have no duty to avoid directing cyclists into a known hazard.

[mr proteus]

thanks jeff! well done as always...

[Brendan]

Look, CFA has nothing to do with this. I work with CFA, I know what I'm talking about.

CFA, through the Shipstead-Luce Act of 1930 reviews building permits for private buildings next to prominent federal buildings or land like the Capitol, Rock Creek Park, Pennsylania Ave. After they review a permit application they advise DC what they think. DC gets to choose whether or not to listen to that advice.

This can be broken down in couple simple ways.

Do zebras, bollards, etc. require a building permit? If no, then CFA has nothing to review.

Are zebras, bollards, etc. private buildings? If no, then CFA has nothing to review.

Here's the law in its one paragraph glory: http://www.cfa.gov/shipstead/pl231_71.html

So what's really going on? Asymmetrical Interest. We cyclists consider this a huge life and death issue. We make sure to put it in the press. On the other hand, CFA, NPS, etc. who would otherwise not care two cents about these things are presented with zebras (which they are told are the most important thing in the world!!!!) and they scramble to figure out why they should care so very much about them too. So they buy time by talking about how very important their agency is, meanwhile they can't quite figure out how they're involved. Then they randomly start pointing to other agencies hoping it never comes back to them.

The "consequences" that are referenced to, about CFA and breaking the law, and how Ribeiro the DC guy said "we could but we shouldn't" comes down to maintaining the DC-Fed detente on Home Rule.

If CFA advises DC to not approve a building permit for a big office building on Pennsylvania Avenue, and DC approves the building permit anyway, well then, DC just thumbed their noses at the authority of the Federal Government didn't they. The Congress critters who are the Federal dudes who approve DC's budget every year might not take too kindly to DC getting uppity. They might just have to put DC back in its place and show it who really runs this town through oh let's say defunding abortions or negating gun control laws. That's the idea at least.

NPS? I have no idea. I suspect though that they have no idea either and are just trying to look Very Serious while they try to figure if they should care or not. And they're pointing the finger at CFA for good measure to see if it will stick to them.

Hey DDOT. Stop buying time and pointing the finger at the Feds and just tell WABA when you're going to put the zebras in.

[Jo-Ann]

Having worked for the Pennsylvania Avenue Development Corporation (PADC), the entity that created and carried out The Pennsylvania Avenue Plan, for just months short of 20 years, I would like to clear up some misunderstanding about what jurisdiction means and why there are a number of agencies involved, regardless of which government entity or private party is the one taking action.

The Commission of Fine Arts
Many decades ago, Congress enacted the Shipstead-Luce Act. This Act requires any new development (or significant renovation) within a specified area that includes but extends beyond Pennsylvania Avenue between the White House and the Capitol to be reviewed by the Commission of Fine Arts. I won't go into the specific language of the Act or the court cases on it, but in essence though advisory, I recall only one incident -- since the late 1960s -- where the Mayor decided to issue a building permit for a private development whose design Fine Arts had rejected. I am unaware of any public project where the public agency seeking approval/comments took action on a plan/design that Fine Arts rejected.

Contrary to another posting, public agencies also need to take projects in the public realm to the Commission of Fine Arts -- there are construction permits issued for these projects as well as for private development projects.

When public agencies have to go to Fine Arts for various projects because of where those projects are located, they tend to want to work cooperatively. If they don't and continually flaunt Fine Arts, there is always the possibility that this will become an issue before Congress. So it just makes sense to work within the given framework.

NCPC
In addition to Fine Arts, NCPC, the National Capital Planning Commission, has a review role and their role under both legislation pertaining just to them and under legislation dissolving PADC is one of review and approval.

Bicycle Plan/Lanes
I was not given an opportunity to see any but the bicycle plan that now exists (but with less white paint) on The Avenue, so I have no idea who or when someone created an earlier bicycle plan mentioned in the article. However, I am quite sure that no one has read The Pennsylvania Avenue Plan, written in 1974 (though amended over the years) to see if there is any mention of bicycle lanes. Well, it happens that The Plan does mention bicycle lanes as follows: "Therefore, the plan [referring to the circulation plan in The Plan] proposes the following lane arrangements: three traffic lanes each way; left turns and pedestrian refuge within a median area, and curb lanes for buses, right turns and bicycles, if feasible." It further states that "The landscaping plan recommends that left turn storage lanes, flush median islands and curb lanes be identified by different surface colors and textures." I did not work directly on public improvements, so I am going to have to ask my former colleagues why some surface treatments in The Plan were not put in place. The point here is that bicycle lanes were to be next to the curb and a special palette of materials should be used -- in keeping with the palette PADC used for Pennsylvania Avenue's reconstruction.

With regard to safety of the bicycle lane that is in the median, I think the article neglected to mention why it is so difficult to provide a visible safe area for bicycles beyond locating them next to the curb. The answer has to do with the Inaugural parade requirements. Every four years in mid-January, overnight, EVERYTHING is removed from The Avenue's roadway and all manholes after being inspected are sealed shut for the Inaugural Parade. Thus, if there were vertical elements securing the bicycle lanes they would have to be able to be removed every four years without damaging the surface or being damaged in the process. Given that the bicycle lanes are hardly up to the standards of the improvements that PADC constructed, and given that DDOT and its predecessors tend to do things as inexpensively as possible, it is most unlikely that DDOT would engage a designer such as Jan Gehl, who consulted on NYC's bicycle lanes, to design bicycle lanes that are safe and in keeping with the design palette of The Avenue.

A Possible Future
I know from experience that it is possible to do better than what DDOT has done and what NPS has done. PADC surely did better. And before its demise, it had examined how best to maintain The Avenue after PADC's sunset.

When charged by OMB in the mid-1990s with developing and recommending a succession plan, it examined several alternatives, the most realistic were the National Park Service, the DC government, a BID (none existed in DC but they did exist elsewhere), and a small independent federal corporation. Both PADC's staff and its Board of Directors concluded that a small independent federal corporation with the Congressional charge to maintain, manage, and operate The Avenue and contract to carry out what it could not itself do would be the best option for The Avenue's future. Unfortunately, the Gingrich Congress in its zeal to reduce the number of government agencies, suddenly chose to close PADC, never giving PADC the opportunity to present the case for how best to manage The Avenue.

It is my hope that the opportunity that NPS is now presenting to the public will allow its staff to re-examine this option. An agency with a small dedicated staff can act far more efficiently and effectively than can most large organizations.

Seventeen years have passed since we worked for PADC, yet many of PADC's former staff concurred with Jay Brodie's statement at the NPS meeting: it is critical for any entity responsible for Pennsylvania Avenue to have a vision of what The Avenue can be and to maintain the level of quality that went into the design and construction of the public realm.

Thank you for this opportunity to comment; if nothing else, I hope I have been able to clarify the role of the Commission of Fine Arts and the National Capital Planning Commission.

[washcycle]

Jo-Ann, thanks for the informative comment. I do need to point out that one part really rubbed me the wrong way.

I am quite sure that no one has read The Pennsylvania Avenue Plan, written in 1974 (though amended over the years) to see if there is any mention of bicycle lanes.

It's a bit insulting to presume that we have not bothered to make ourselves informed. And more so since it is wrong. Just two days before this post ran, it was mentioned in this post. So, I am sure (and I really mean sure) that you're wrong about that.

Further chafing comes from the fact that you haven't even bothered to find out what it is we're all talking about. If you're going to hold yourself out as some kind of expert on all things Pennsylvania Avenue, you could at least look up the original 2010 bike lanes - how do you not know about that? It was kind of a big deal.

Clearly you don't read this blog, but I can assure you we all know about the inauguration and how things have to be removed - that's why it wasn't mentioned, it's old hat.

Despite the 1974 plan, the bike lanes were not put on the outside (and those were bike/bus lanes BTW) because of conflicts with turning vehicles. We've learned a lot about street design since Laugh In went off the air.