DCRA Has Second Thoughts About Going Easy on Businesses in Dispute with Resident

635 – 633 – 631 Pennsylvania Avenue SE

Here’s what happens to the storm runoff from the 3 businesses above (this and following photos courtesy of Ron Tomasso)

And here’s where it ends up

Some of it ends up here

DCRA Has Second Thoughts About Going Easy on Businesses in Dispute with Resident

But Only After ANC6B and the Mayor’s Office Get Involved

by Larry Janezich

What recourse does a resident have when his or her property is being damaged through what appears to be negligence on the part of an adjacent business?  Not much, it turns out.  A resident of D Street, SE, has suffered on-going flooding issues for ten years (since 2006) as the result of storm water runoff – primarily from the building currently occupied by Hank’s at 633 Pennsylvania Avenue, SE, but also from the two businesses on either side of the restaurant at 631 and 635.

The responsibility appears to be with the building owners – most leases make structural issues their responsibility rather than that of the tenants – and indifferent absentee landlords find the occupants of a problematic building a convenient buffer between them and unhappy neighbors.  That being said, businesses have a responsibility to be good neighbors to residents and other businesses in the community.

Ron Tomasso first complained to DCRA about the illegal construction of an addition to the building at 633 Pennsylvania Avenue currently housing Hank’s in 2006 – long before Hank’s was a lessee.  DCRA took no action, he says, and during the construction aged storm water “leads” from 633 and 631 Pennsylvania Avenue which emptied into the sewer were disconnected and the runoff was allowed to flood into the back yard of his residence which backs up to the building now occupied by Hank’s.  The problem was compounded when the eye glass business at 635 disconnected one of its two storm water leads from the sewer (because, according to Tomasso, they said their basement was flooding) sending more storm water into Tomasso’s yard.

Tomasso said he tried to work with successive lessees of the property at 633 since they were the source of most of the problem but none were receptive.  The building went into foreclosure in 2014, and was purchased by M M T Limited Partnership, which lists its address as its agent’s office in Arlington.

When Hank’s – a popular and highly successful restaurant leased the property, Tomasso said he had hopes of getting the problem solved – hopes that were encouraged by Hank’s representatives pledging to fix the flooding.  Those hopes faded as Hank’s did nothing despite Tomasso’s continued entreaties.

Tomasso then complained to DCRA, and enlisted the ANC who brought in the Mayor’s Ward 6 representative.  DCRA inspected the property in November of 2015, and nothing happened.

When ANC6B Commissioner Diane Hoskins followed up with DCRA recently to find out the status of the a more recent inspection, she found that one of DCRA’s commercial inspectors had filed the following report:

“I spoke with the bartender/manager on site of the above address 633 Penn ave se. The manager stated that the owner has scheduled contractors to come out and repair the roof. I also spoke with the staff at Eye glass shop. They stated that they had no clue of any inspection scheduled for today nor where they of any water damange. Recommend that all three cases be closed for 631-633-635 Pennsylvania ave se.”

Hoskins appealed to one of the Mayor’s Ward 6 representatives, calling DCRA’s response “unacceptable – failure of government.”  Another DCRA inspection was scheduled this past week.

As the result of the latest inspection, Tomasso told CHC that it is his understanding that citations will be mailed today.  Hoskins said citations would be sent to each of the 3 property owners, as opposed to the tenants, by U.S. Mail.  She said the citations will apparently impose a 30 day period for correction, followed by another inspection.

Tomasso says he is looking for some level of assurance that whatever fix the businesses do, it will be effective.  He noted that it is within the rights of the businesses to ask for an extension and says that he expects that, since he doesn’t think the problem can be fixed in 30 days.

ANC6B has tried to get restaurants in ANC6B to adopt best operating practices and has had success with new restaurants opening on Barracks Row.  Getting established restaurants to adopt best practices is more problematic, and ANC6B has protested the renewal of liquor licenses to pressure restaurants to correct the more egregious of neighbor complaints.  ANC6B is currently protesting Hank’s license renewal, hoping to encourage a resolution to the flooding problem and also a secondary complaint by Tomasso regarding the noisy mechanicals on the roof overlooking his back yard.  In response, Hank’s retained liquor license attorney Andrew Klein (see CHC post here:  http://bit.ly/1WPEDPy) to fight the protest.  A similar protest by Tomasso was dismissed by a finding of ABRA on the grounds that the flooding issue was not within their purview.

The fact that the ANC has to resort to such tactics points to either a failure on the part of government in enforcing the regulations or a deficiency in the regulations themselves, or both.

Some city agencies, including DDOT, DCRA, HPRB, the Zoning Commission, and ABRA have a long record of being unresponsive to resident concerns.  Some of those cases have been reported on this blog, but many cases where city agencies have all too often sided with commercial interest at the expense of nearby residents go unreported.

To be fair, there have been instances when a coordinated effort by the local ANC and a committed group of organized neighbors have produced results – for example, the multi-agency effort to address the rat problem on Eastern Market Metro Plaza.  But, too often, when it comes to a single neighbor or a handful of them going up against a popular high-revenue commercial enterprise – for example the three restaurants owned by Spike Mendelsohn on the 300 block of Pennsylvania Avenue, SE – the city gives the benefit of the doubt to the business.

Hank’s told CHC in lawyerly language:  “…Our position is that we will, as we always have done in all of our restaurants, continue to resolve, in good faith,  any legitimate issues related to our business operations…..” The language avoids addressing problems NOT directly related to business operations, but which are simply a matter of being a good neighbor.  Hank’s added they would have “no further comment until the ANC’s inappropriate threat to our license has been resolved.”

Hoskin’s response was, “Hanks has been irresponsible and will not engage to correct the problem — even after repeated requests. Being a good neighbor should be a pre-requisite for doing business. There have been years of empty promises of a solution but enough is enough.”

The Mayor’s office has not responded to requests for comment.