Andrea C. Ferster
1100 SEVENTEENTH STREET, N.W., 10th Fl.
WASHINGTON, D.C. 20036
Tel.(202) 974-5142 Fax (202) 331-9680
July 23, 2010
Hon. Adrian Fenty, Mayor
District of Columbia
One Judiciary Square, N.W
Washington, D.C. 20001
Dear Mayor Fenty:
I am writing on behalf of the Committee to Save Our Libraries, in response to the press release issued by the D.C. Public Library dated April 2, 2007, announcing the decision to proceed with demolition of the Benning Neighborhood Library, located at 3935 Benning Road, N.E. According to the press release, demolition is scheduled to begin in May 2007. The purpose of this letter is to advise you that Advisory Neighborhood Commission (“ANC”) 7D has not received the notice or opportunity to comment on the planned demolition and reconstruction of this library required by the ANC Act, D.C. Code §§ 1-207.38(d); 1-309.10(b).
As you know, the ANC Act requires that the affected ANC as well as the ANC Commissioner representing the affected Single Member District be given 30-days written notice of all “district government actions or proposed actions, including . . . (2) the intent to change the use of property owned or leased by or behalf of the government.” D.C. Code § 1-309.10(b). The decision to demolish the Benning Neighborhood Library, which was closed in 2004, is plainly a permanent change in the use of property owned by the government and subject to this notice requirement. This notice requirement applies to all “independent agencies, boards, and commissions,” including the D.C. Public Library and the Board of Library Trustees.
The courts have emphasized the importance of this statutorily-required notice to ANCs in ensuring that the ANC is able to perform its statutory function of providing advice on proposed district government actions. Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372 (D.C. 1977). This statutory function includes having the ANC’s “issues and concerns” be accorded “great weight” in a written agency decision on the proposed action. “The written rationale of the decision shall articulate with particularity and precision the reasons why the [ANC] does or does not offer persuasive advice under the circumstances. In so doing, the government entity must articulate specific findings and conclusions with respect to each issue and concern raised by the [ANC]. “ D.C. Code § 1-309.10(d)(3)(A) and (B).
It is self-evident that, in order for the ANC to be accorded a meaningful opportunity to provide its views and receive the statutorily-required “great weight,” notice of the proposed action must be provided before the decision to take the action is made. Here, however, there is no evidence that the D.C. Public Library or the Board of Library Trustees provided the ANC with a formal opportunity to comment prior to making a final decision to demolish the current Benning Road Neighborhood Library in favor of a newly-constructed library.
Minutes from meetings of the Board of Library Trustees provide no indication that any real consideration was given to the alternative of retaining and expanding the current library, which currently provides 18,000 square feet, and whose structure allows for the future addition of a second story over a portion of the original building. According to the Hess Construction Design/Build Report dated July 2004, the new library will have only 14,000 square feet – even less space than the current one-story library – a size that precludes that library from serving many of the functions that are important to the community, including as a safe space for school children and senior citizens.
Until the issuance of the aforementioned press release in April 2007, the ANC was not aware that this decision had been made to completely demolish the Benning Neighborhood Library and construct a new library. Instead, the sole efforts at public involvement involved the distribution of flyers soliciting general public input on “library issues and concerns,” and allowing some select community members to participate in “focus groups” and “stakeholders” meetings on the subject of public-private development opportunities. None of these actions is a substitute for the required notice to the ANC and formal opportunity to comment at a meaningful point in the decision-making process. To be meaningful, notice to the ANC must be provided before the government irrevocably takes proposed action to change the use of government-owned property. There can be no doubt that demolition of the Benning Neighborhood Library constitutes irrevocable action.
On March 19, 2007, Mr. Rick Tingling-Clemmons, elected commissioner of ANC 7D05 (the affected ANC single member district), wrote to Ms. Ginnie Cooper, Chief Librarian, to express the ANC’s desire to retain and renovate the current Benning Library structure, as well as his concerns about the lack of notice and an opportunity to comment on key decisions respecting the library in violation of the ANC Act, D.C. Code §§ 1-207.38(d); 1-309.10(b), 1-309.10(d)(3). Despite being directly placed on notice of the ANC’s concerns, the notice to proceed with demolition of the library was apparently issued by the D.C. Public Library on March 26, 2007.
It is clear that ANC 7D has been deprived of both its statutory right to notice of the final decision to demolish the Benning Neighborhood Library, and to have its comments be considered and accorded the statutorily-required “great weight.” At this point, the ANC has been deprived of any ability to perform its statutory functions. This violation can be cured only by formally rescinding the notice to proceed with demolition, and re-opening the decision-making process. Only in this manner can the ANC be provided with notice of the proposed action (as opposed to post hoc notice of a fait accomplis) that allows the ANC a meaningful opportunity to perform its statutory function. Final action cannot be taken until the D.C. Public Library responds to the ANC’s issues and concerns and accords them with the statutorily-required “great weight.”
Given that activities preparatory to demolition of the Benning Neighborhood Library are apparently now underway, please be advised that, unless the notice to proceed is rescinded immediately, residents of ANC 7D intend to take legal action to secure judicial review of the decision to demolish the library. In the context of such an action, we will also seek immediate injunctive relief to preserve the status quo while the issues raised herein are being adjudicated.
In light of the foregoing, I request a response at your earliest convenience. I can be reached at (202) 974-5142.
Andrea C. Ferster
Counsel for Community to Save Our Libraries (C-SOL)
cc: Ginnie Cooper, Chief Librarian
D.C. Public Library
John Hill, Chairman, DC Public Library Commission, and Federal City Council