Tag Archives: Hine

New Letter Confronts DMPED’s Decade-Long Flouting of Transparency Laws

New Letter Confronts DMPED’s Decade-Long Flouting of Transparency Laws

by Larry Janezich

On February 11, Muriel Bowser took Deputy Mayor for Economic Development Victor Hoskins to task for the on-going lack of transparency which has characterized his office for more than a decade.  She did so during her Committee on Economic Development oversight hearing of DMPED, and in response to earlier testimony from Brian Flahaven, Chair of ANC6B, regarding the Hine project and by Oliver Hall, an attorney for litigants who are appealing the Zoning Commission approval of the West End Library and Hine development projects.

District residents filed formal FOIA requests in both the Hine and West End cases to obtain withheld records and in each case DMPED declined the request in whole or part, but in each case was reversed on appeal to the Office of the General Counsel (OGC) to the Mayor.  In the Hine case, the OGC issued a stinging rebuke to DMPED’s citation of the “trade secrets exemption” as a general basis for withholding public records, saying [it] “comes perilously close to insulting the Court’s intelligence.”

Hoskins testified before Bowser that DMPED does not publicly disclose documents relating to the lease or sale of public properties to private developers because “we haven’t been required to do it.”  That appears to be flat out wrong, since the Freedom of Information Act requires DMPED to post on its website, contracts created after November 1, 2001.

In a March 3 letter to Bowser and members of the City Council, Hall wrote: “A recent search of DMPED’s website did not reveal a single final LDA available for public review.  In fact, most of the projects listed under the ‘Real Estate Projects’ section of DMPED’s website do not link to any documents whatsoever.  …the Hine and West End Public Library properties – are not even listed….”

Hoskins went on to testify on February 11 that “We’re not trying to hide anything.”  Bowser said, “But we do hide it.  It gets lost….   It shouldn’t be FOIA’d.  We can do this proactively and just put [the information] out. our default.  Will you work with me?”

Hoskins replied, “Sure.”

In his letter, dated March 3rd, Oliver Hall asked Bowser not to rely on Hoskins’ “vague pledge” of more openness.  He requested that she schedule another hearing to investigate DMPED’s ongoing lack of transparency and to take action to ensure DMPED complies with the FOIA by posting all LDAs and other public contracts on its website.

At issue, in Hall’s eyes, is the lack of ability of the committee or the city council to provide adequate oversight and ensure that taxpayers get fair market value for public property DMPED leases or sells to private developers.  Also implicit is the issue of the slipshod legislative process by which the council approves draft Land Lease Development Agreements, saying in effect, the details can be worked out by staff.   This is a tremendous delegation of discretionary authority, so much so that it can be characterized as a failure of oversight.

As of today, Capitol Hill Corner has not been made aware by any response from Muriel Bowser.  Hall’s letter was also copied to the city council.

A copy of Hall’s letter can be found in the CHC Library – click on the link at the top of the page.

For Capitol Hill Corner’s February 12 post: ANC6B and Hine Opponents Find Common Ground on Faulting DMPED Transparency, go here: http://bit.ly/1aVCuwD

For the February 27 post: New Documents Show Developer Pressed City to Close on Hine to Avoid Bowser Hearing, go here: http://bit.ly/1fLp2vl


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New Documents Show Developer Pressed City to Close on Hine to Avoid Bowser Hearing

New Documents Show Developer Pressed City to Close on Hine to Avoid Bowser Hearing

David Wilmot – Lobbyist and Hine Partner – Pressured Mayor’s Office

by Larry Janezich

A slew of new documents released in response to a Freedom of Information Act request

(FOIA) filed for records related to the transfer of the Hine site from the city to the developer

reveal that the developer for the site, Stanton/Eastbanc (SEB), made a concerted effort to go to closing quickly, in part to avoid appearing before Muriel Bowser’s Committee on Economic Development.

The records also show the difference between the city’s public presentation of its decisions and the private deliberations carried on with the developer.  The documents were produced by the Deputy Mayor for Economic Development (DMPED) only after the General Counsel to the Mayor ordered the office to be more forthcoming in response to the FOIA filed by Oliver Hall, attorney for residents who are appealing the Zoning Commission’s approval of Hine project.

The City Council’s latest extension of the original closing deadline would expire on July 13.  As closing on that date became increasingly questionable and the city was anticipating extending the deadline again, the Hine partners began maneuvering to close by the July 13 date.

On June 12, 2013, Eastbanc’s mostly-silent partner on the Hine and West End projects, David Wilmot, the director of Autopark (as well as lawyer and powerful local lobbyist who Washington City Paper has recently tied to Jeff Thompson, the former city contractor now a target of  a federal corruption investigation in the District http://bit.ly/1egvbiW), weighed in with the Mayor’s office.  In a 5:51am email to Janene Jackson, director of the Mayor’s Office of Policy and Legislative Affairs, Wilmot says, “Yesterday, we met with DM (Deputy Mayor for Planning and Economic Development) Victor Hoskins who indicated that he supports our proposed solutions and needs to confer with the Mayor before providing an answer to our requests.”  He went on to say that an appearance before Bowser’s committee for an extension should be a “last resort, only to be exercised in the event that we are unable to close…Quite frankly, the last place we should want to visit on these projects is the Council.”  (City records show that in January, 2014, Wilmot contributed $2000 to the Gray campaign.)

Janene Jackson responded with an email later that same day at 5:47 pm.  Jackson told Wilmot:  “I must admit, I am concerned that we’re not following the usual process of extension because I think it will blow back negatively on the Mayor but I’ll defer to the DM.”  Wilmot’s reply said, “Let me be clear that the DM supports our position.”

Part of the “solutions” referred to by Wilmost was the proposal to split the Hine closing into two components – the land closing, and the financial closing at a later date.  Although presented to the public as unremarkable, the proposal to split the Hine closing and the rush to closing in order to avoid appearing later before Bowser’s committee for a progress report, appears to have worried the Mayor’s Office.

In a June 17, 2013, Jeff Miller, Director of Real Estate, DMPED, emailed Eastbanc President Anthony Lanier saying “The Deputy Mayor has consulted with Mayor Gray and his advisory team on the alternatives to legislation that you have proposed, specifically bifurcating a closing into a land closing and a subsequent financial closing upon a favorable decision of each appeal.  Such a process, as you have described, would eliminate the risk of taking the project to Council for renewal of the surplus and disposition authority.”

Miller cited five concerns standing in the way of moving to closing: public space encroachment, no financing raised for the development, tenant agreements still under negotiation, the in-flux status of the PUD during litigation, and differences between cost estimates and actual costs.  Miller goes on to say, “Under the weight of this uncertainty the District is reticent about closing ahead of resolution of each of these items, and will abide by the original LDA terms of conditions precedent to close.  We also feel that the risk of Council action unfavorable to this project is slightly less than for that of the West End project.  Toward this end we plan to move forward with extension legislation, which we will introduce to Council by June 26th.”

The same email discusses the city’s reservations regarding Eastbanc’s West End project, which, at the time and as discussed in the same email, was also under litigation.  Yet the city did not enumerate financing as one of the concerns regarding the West End Library.

As the July 13 closing date approached, SEB continued to press for early closing, warning that the Hine project could fall victim to campaign politics.  However, with some of the outstanding issues still unresolved it appeared that it would be necessary to extend the closing date.

On June 28, Anthony Lanier, president of Eastbanc and managing partner of SEB, pressed the city to move to closing quickly and avoid the possibility of going before Bowser’s committee for an extension.  In an email of that date, Lanier expresses his concern for “the voting dynamics of citizen support for Bowser v. support for Hine.”

The concerns regarding the politics of Hine came up again on July 1.  In an email to Lanier on that date, Miller states that he and Hoskins had met with the DMPED internal team and the Office of the Attorney General regarding early closing.  “The internal recommendation was that even if the outstanding business issues are put aside the risk to the city of a closing followed by the PUD remanded to the Zoning Commission is too great.”  He goes on to say “the city is best served by waiting to close until the PUD process has concluded….  The email indicates an about face for Hoskins, saying that the Deputy Mayor supports this and is unwilling to close while the PUD litigation remains outstanding.  It goes on to say ‘We have taken the necessary steps for the extension…. ‘”

Later that day, at 3:07pm, an alarmed Anthony Lanier, responded to Miller’s email with a quick note to say “not good, bordering on disaster.”

At 3:42pm the same day, another Lanier email to Miller, reads in part: “An extension, if it actually succeeds, is a lateral move, transferring future decisions into a volatile political arena fraught with risk.  The Ward Councilmember as well as a political favorite of the opponents are running for Mayor with distinct political goals which are not necessarily symbiotic with yours and ours…in the meantime, the financial commitments we have obtained will be suspended.”  (It is unclear to which financial commitments Lanier refers to here: the West End, or federal affordable housing tax credits for Hine and West End which are routinely purchased by Wall Street banks looking to improve their Community Reinvestment rating).  Lanier requested a meeting “ideally prior to the end of the day” between SEB “and all parties in order to come to the most sensible conclusion.”

In this particular exchange between Lanier and Miller, several of the emails have been blacked out by DMPED, raising the question of whether these emails meet a legal threshold for exclusion, or are merely embarrassing to parties involved.

On July 9, ANC 6B voted unanimously for a one year extension of the closing deadline, citing two issues that in its view made this necessary:  a surveying discrepancy and the appeal to the DC Court of Appeals of the Zoning Commission ruling filed by neighbors, which the developer and the ANC contended has delayed financing for the project.  The letter stated that the city and developers were pursuing an alternate route to the settlement that will allow the development process to continue. Though lack of financing has routinely been connected to the on-going litigation by the developer and the ANC, the city did not relate the two in Miller’s email of June 17, and did not cite financing as a concern with the West End project, which was also under appeal.

On July 10, the City Council extended the deadline for closing by six months.  Mayor Gray had requested a one year extension, but Councilmember Bowser offered an amendment providing for six months (January 13, 2014), and the Council passed it unanimously on a voice vote, with Councilmember Barry recusing himself citing a standard excuse that he may or may not know principals involved in the project (Wilmot has been tied to Barry, and that is one possible explanation for his recusal).

None of the documents obtained under the FOIA indicate what happened in the meeting requested by Lanier, or even if such a meeting occurred.  But if it did, the developer must have been persuasive.  The city closed on the deal and transferred the land to SEB on July 12.


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ANC6B and Hine Appellants Find Common Ground on Faulting DMPED Transparency

Brian Flahaven, Chair, ANC6B Before Committee on Economic Development Yesterday

Brian Flahaven, Chair, ANC6B Before Committee on Economic Development Yesterday

Attorney Oliver Hall Before Committee on Economic Development Yesterday

Attorney Oliver Hall Before Committee on Economic Development Yesterday

Deputy Mayor Victor Hoskins Before Committee on Economic Development Yesterday

Deputy Mayor Victor Hoskins Before Committee on Economic Development Yesterday

ANC6B and Hine Appellants  Find Common Ground on Faulting DMPED Transparency

by Larry Janezich

Yesterday, in testimony before the DC Committee on Economic Development, ANC6B Chair Brian Flahaven joined appellants of the Hine project in agreeing that DMPED failed to respond properly to a FOIA request filed by Capitol Hill residents seeking details about the deal that DMPED struck with Hine developers Stanton/Eastbanc.  Flahaven said that DMPED “mishandled the Freedom of Information Act request submitted by community members and needlessly delayed and limited access to information…”

Flahaven also called the Committee’s attention to a flaw he (and ANC6B) sees in the disposition of public/private deals where DMPED and a developer negotiate the terms for community benefits and amenities behind closed doors and in advance of the PUD process, where these terms would otherwise be negotiated between the developer  and the ANC and community.  In such a situation, Flahavan argued, the ANC and community have very little room to negotiate.  He went on, “To its credit, DMPED’s aggressive negotiations produced a well-defined and directed list of benefits and amenities to be delivered by the project,” but did not acknowledge one of the chief complaints of Hine appellants, i.e., that the benefits and amenities in the Hine project are being paid for by the taxpayers.  As Capitol Hill Corner has previously noted, the fact that the Hine “benefits” ostensibly provided by the developer but which are being subsidized by taxpayers came out only after a FOIA was filed by neighbors appealing the Zoning Commission’s order on Hine.  As CHC has also previously reported, at least one ANC Commissioners cited the community “benefits” package when they voted to approve the Hine project by a 6-4 margin.   A tie vote to approve the project would have failed.

Flahaven urged DMPED and the Council to determine ways to engage the community and ANCs in setting the parameters for benefits and amenities when a PUD follows a city-led Request for Proposal (RFP) process on public/private partnership projects.

Following Flahavan’s testimony, Oliver Hall, attorney for the Hine Coalition which has filed suit to overturn the Zoning Commission’s approval of the Hine project, went further, saying residents feel that DMPED and Stanton-EastBanc misled them by failing to disclose that taxpayers are paying for the public benefits that Stanton-EastBanc proffered in support of its proposed development.  Calling the project “extremely controversial” because it exceeds zoning restrictions, Hall noted the sharply divided 6- 4 vote by which the ANC approved the development.  He said the outcome might have been different if the public knew the “facts that DMPED failed to disclose.”

Flahaven subsequently said that “while there is clearly opposition to the Hine development, I think that Hall has gone overboard in characterizing neighborhood opposition.”

With respect to transparency, Committee Chair Muriel Bowser expressed her support for a new openness default on information – and a fresh start for openness and transparency.  “The Hine disposition is no small matter.  Everybody deserves access to information, point blank.  Period.”  She said the Office of Open Government monitors compliance and she would ask them to take a look at it – if the info was not forthcoming, the matter would be referred to the Board of Ethics and Accountability.

In back and forth with Deputy Mayor for Economic Development Victor Hoskins later in the day on the issue of transparency (during which Hoskins went out of his way to offer a gratuitous public insult to Chris Otten, an organizer with the DC Library Renaissance Project), Hoskins offered excuses why DMPED could not be more forthcoming in distributing information.

Bowser ‘s response was crisp and definitive.  When Hoskins said, “We’re not trying to hide anything” Bowser said, “But we do hide it.  It gets lost….   It shouldn’t be FOIA’d.  We can do this proactively and just put [the information] out. We’ve had a default to not giving information.  Let’s change that.  We can give more and change our default.  Will you work with me?”

Hoskins replied, “Sure.”

“Awesome,” Bowser said.


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DC General Counsel Affirms Order to DMPED to Release Hine Documents in Response to FOIA


DC General Counsel Affirms Order to DMPED to Release Hine Documents in Response to FOIA

by Larry Janezich

The Office of the General Counsel to the Mayor (OGC) has refused a request from the Deputy Mayor for Economic and Planning (DMPED) to reconsider the order to release documents related to the Hine development requested under FOIA.  The decision lets the order issued to DMPED on November 14, 2013, stand.  (For the story on the initial order, see: http://bit.ly/1j1Mtmz)

The FOIA request was filed by attorney Oliver Hall, counsel to the Hine Coalition, a group of Capitol Hill residents who have appealed the Zoning Commission’s approval of the Hine project  to the DC Court of Appeals.

After DMPED failed to respond to the FOIA, Hall filed an appeal directly to the Mayor’s office protesting DMPED’s denial of his request for documents related to the Hine project.  In its most recent decision – delivered in a December 31, 2013 email from Deputy General Counsel Donald S. Kaufman to DMPED’s Ayesha Abbasi – the OGC acknowledged that it had previously expressed willingness to entertain reconsideration, but it had directed DMPED to “detail the specific reason why a particular record is exempt from disclosure.”  In this most recent email, Kaufman wrote that DMPED did not “set forth particular records as to which would be exempt under the exemption.”

Initially, DMPED offered the Office of General Counsel some 378 emails which had been withheld from disclosure.  OGC reviewed all of the emails and found the vast majority of them did not contain proprietary information that would result in substantial harm to the developer.  OGC did make four exceptions to the order to disclose documents:  emails containing bank wiring instructions, legal arguments analyzing alternative legal structures for the condominium portion of the Hine project, insurance policy numbers, and emails to other DC government agencies.

A copy of the email from the OGC can be found in the Library on CHC.

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Worksheet on Tommy Wells Campaign Contributions

Worksheet on Tommy Wells Campaign Contributions

Note: Exploratory contributions are noted for items 1 and 2a, 2b; elsewhere “+” indicates a split contribution, whereas “,” separates two people who can be seen as representing one entity. Exclusively exploratory contributions for categories beyond 2b (like that of the Cymrots) are not specifically noted as such; those who are curious can consult the original documents in the Library.)

1)  Tommy Wells

$10,000 exploratory




$15,747.27 total

2)  Developers and related interests

a)  Hine Development

Kitty Kaupp $2,000 ($1,000 exploratory + $1,000)

Ken Golding $2,000 exploratory

Coldwell Banker 605 Pennsylvania Ave

Phyllis Jane Young $2,000 exploratory

John Parker $750 ($500 exploratory + $250)

Catherin Held $500

Angela Grimmer $250

Don Denton $250

$7750 total

 b) Restaurateur/Developer Xavier Cervera & Associates

Xavier Cervera $2,000 exploratory

Barracks Row Entertainment employees:     $2,000 exploratory

$2,000 exploratory

$6,000 total

c) Other Developers/Related Interests

Charles Asmar, lawyer for developers: $1,500 + $1000 ($500 returned as over limit)

William Lansing, Valor Development: $2,000

Phillip Coffey, SVP, Gaylord Entertainment, National Harbor: $2,000

Stephen Pugh, COO, Rappaport Companies: $2,000

Mera Rubell, art collector/developer: $2,000

Robert Cohen, CEO, Perseus Realty: $2,000

Scott Olson, Olson Advocacy Group: $2,000

Benjamin Miller, WestMill and Fundrise: $2,000

Maurice Kreinder, local CVS developer: $750 + $500

Fred Greene, FLGA LLC: $1,000

Matthew Weiss and Joseph Englert: $1,000, $500

Jack Mahoney, Title company: $500, $500

PI Corps, FL, employees: $2,000, $2,000

Pascal Nardelli, Castlebrook $500

Michael Nardelli, policy advisor at Nelson and Mullins: $2,000

Norman Glasgow, lawyer for developers: $500

Jair Lynch, eponymous developer: $500

Judi Seiden, Prudential: $1,000 + $500

Margo Kelly, realtor: $1,000

$29,750 total

($29,750 + $6,000 + $7,750= $43,500)

3) Miscellaneous Large Donors

Nicky and Steve Cymrot: $2,000, $2,000

Local CTO officer, GGW columnist Ken Archer: $2,000

Maygene Daniels $2,000

Timothy Temple, Splash Car Wash, activist against living wage: $2,000

Kent Amos, local public charter founder: $2,000

Todd Degarmo, architect: $2,000

Catherine Ramsdell, Jan’s Tutoring: $2,000

James Loots and Barbara Dougherty Loots: $2,000, $2,000

Ellen McElroy, Pepper Hamilton Law: $2,000

Robert Kosinski, CFO, Scitor Corporations: $2,000

Dan Macy, Editor, Thompson Publishing: $2,000

James Thompson, adoption lawyer: $2,000

Davis Buckley, architect: $2,000

Charles Parsons, retired: $1,000 + $1,000

Mary Lappatto, Cozen and O’Conner: $2,000 (+$1,200 more with same last name)

$35,200 total

4)  Other Large Donors, by Categories:

a) Local Business Barracks Row

$2,000 Constance Tipton, related to Tip Tipton

$3,500 David and Danette Sheldon

$4,000 (possibly more) from Yes! Organic Market and family

$2,000 Bart Vandaele

$2,000 Leah Daniels, Hills Kitchen

b) Local Business outside of Barracks Row

$2,000 Spike Mendehslon

National Capitol Bank

Richard Didden (recently deceased): $2,000

James Didden: $500

$18,000 total

5)  Lobbyists, Political Consultants/Services

a)  With known ties to Wells Campaign*

Winning Connections*

John Jameson: $2,000

Wells’ campaign pays “office rent”

Face to Face Strategies*

Paul Cooper $775 + $1025 (+ $2,000 from person with same home address)

Lists Wells as a client on website

b)  Other Lobbyists, Political Consultants/Services

Bernie Robinson, Livingston Group: $500 + $1,500

Ware Adams, Dean and Co., and wife Ellen: $2,000 + $2,000

Philip Lepanto, Connections Media and owner of Old School Hardware: $2,000

Michael Coscia, printer of campaign material: $1,000 + $1,000

Adam Clampitt, District Communications Group: $500 + $1000

$17,300 total


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Office of DC General Council Orders DMPED to Release Hine Documents

Hine Junior High

Hine Junior High

Office of DC General Council Orders DMPED to Release Hine Documents

Efforts to Shield Documents from FOIA “Reversed and Remanded”

by Larry Janezich

The DC Office of General Council today reversed and remanded the decision by the Office of Deputy Mayor for Economic Development (DMPED) to shield documentation on the Hine project from a FOIA request filed by attorney Oliver Hall.  Hall is counsel to the Hine Coalition – the group of Capitol Hill residents who are appealing the Zoning Commission’s approval of the Hine project.  The order came after the release earlier today of a message from Chair Muriel Bowser’s Committee on Economic Development critical of DMPED’s transparency on the Hine project.

In its ten page ruling (available on Capitol Hill Corner’s Library page above) Deputy General Counsel Donald Kaufman finds that DMPED did not justify its withholding of information well enough or specifically enough to qualify for an exemption which the law permits.

The Office of General Counsel invited DMPED to provide the documentation in question for “in camera” (private) review in order to determine whether they met the threshold for exemption from FOIA.  In response, DMPED provided only “samples”, none of which met the thresholds.

The ruling stands as a victory for attorney Oliver Hall, especially since the General Counsel’s office is on record as saying, “…disclosure of the amount which the District receives from the sale or lease of its assets is in the public interest.”

On October 10, Hall filed an appeal directly to the Mayor regarding DMPED’s the denial of his FOIA request for documents related to the Hine project.  The filing objected to the failure of DMPED to produce public documents in response to a FOIA request in three instances:  first, its failure to make public contracts available on its website; second, its failure to produce responsive documents; and third, its redaction of portions of public contracts.  All three, the filing said, are violations of DC code.  The letter requested relief from all three and suggested prosecution for any party found to have committed an “arbitrary and capricious violations of the [FOIA].”  See here: http://bit.ly/19IqahR

“We won on almost all counts” Hall said.  He continued, “DMPED has to produce all documents they withheld. As far as I can tell, the only point we lost on is our request that DMPED be ordered to place all public contracts online in every case.”

On September 19, Capitol Hill Corner reported on DMPED’s efforts to stonewall access to the Hine documents.  See here:  http://bit.ly/1aX2szx


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Stanton/East Banc, Shakespeare and Hine

The Shakespeare Theater Expects to Lose Their Barracks Row Rehearsal Space to a Restaurant Nest Year

The Shakespeare Theater Expects to Lose Their Barracks Row Rehearsal Space to a Restaurant Nest Year

Stanton/East Banc, Shakespeare and Hine

by Larry Janezich

Last week, the Washington Post’s Jonathan O’Connell reported that the Shakespeare Theater is looking to the former campus of Southeastern University at 6th and I Streets,  SW,  as a new home for rehearsal, storage, and artist living space.  http://bit.ly/1fcutla

The article related an attempt several years ago by Shakespeare’s managing director, Chris Jennings, to cut a deal with Stanton East Banc (SEB) developers to occupy a portion of the forthcoming Hine development at Eastern Market.  In the article, Jennings accused East Banc of using the relationship with the theater to help win the bid from the city, but then priced the theater out of the project.

Capitol Hill Corner reached out to East Banc for reaction to Jennings’ claim and received the following response from Anthony Lanier, head of East Banc:

“[A]s can be confirmed by Chris Jennings, both parties spent considerable effort to create a zero margin “box” to suit the Shakespeare’s needs, only to arrive at the conclusion, that to build a new back of the house set of spaces simply became to (sic) expensive for Shakespeare to commit to; that fact, combined with the “contingency”, that the money from the theater was subject to a fundraising campaign whose outcome couldn’t be pre-determined, multiplied by the tight milestone schedule under which the design and approvals had to proceed, made the effort unfeasible.  The developer viewed the Shakespeare’s involvement as a unique opportunity to create a special place.  Their involvement certainly was not used to win the award.  Both parties left the table, after having expended significant resources and planning dollars, in agreement that the combination of cost, timing and schedule made the project overreaching and therefore, unfeasible.”

Capitol Hill Corner asked Shakespeare’s Jennings for reaction and received his comment in an email forwarded by a Shakespeare spokesperson.  “Shakespeare Theater agrees – both parties tried in good faith to create a deal that would meet both needs.  And we were thrilled that East Banc sought to enliven their development with our theater company.”

The Washington Post article was the first that many Capitol residents heard that the Shakespeare company was no longer pursuing housing for actors in the Hine project.  In February of 2011, Stanton Development, East Banc’s partner in the Hine project, told the community that the Shakespeare Theater has decided to keep its administrative offices in place on Barracks Row but would house its visiting performers in the Hine development.

Capitol Hill Corner asked the Shakespeare Theater when the decision had been made not to pursue actors’ housing in the project and received the following response from spokesperson Lindsay Tolar:  “Currently we have no agreement for actor housing with East Banc or any other developer.  We continue to explore comprehensive options for all of our support facilities including our artist housing.”   The same question, when put to Stanton Development, received no response.

It would appear that sometime after February of 2011 the Shakespeare housing component was quietly dropped from the project.  Exactly how and when that came about is uncertain.

The Washington Post article says that financing for the Shakespeare’s move into SW is uncertain, but speculates that a possible solution could be found where market rate housing in a mixed use building could subsidize the use of the space by the theater company.   The article says that Jennings also plans to ask the city for assistance.


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Stanton-EastBanc Asks DC Court of Appeals to Ignore Hine Lease Provisions

Hine Junior High

Hine Junior High

Stanton-EastBanc Asks DC Court of Appeals to Ignore Hine Lease Provisions

Opponents Fault DMPED for Failure to Release Hine Documents

by Larry Janezich

Attorneys for Stanton-EastBanc have asked the DC Court of Appeals to disallow the submission the Hine development land lease as evidence which reveals that DC taxpayers will pay for almost $2 million in benefits and amenities that the Zoning Commission credited to the developer when they approved the Hine PUD process.  In a October 10, 2013 letter to the court, Greenstein Delorme & Luchs, attorneys for SEB, argued that the rule allowing submission of evidence at this stage only pertains to the decision of courts and that plaintiffs had the document in question prior to the court hearing.

Oliver Hall, attorney for the Hine Coalition appealing the Zoning Commission decision, responded on October 15, asserting the propriety of submitting the additional evidence, citing that it had been introduced orally at the hearing, and while it was always available to the developers, became available to petitioners only by filing a FOIA request.

Significantly, Hall’s letter states, “Stanton-EastBanc withheld this information, and permitted the Zoning Commission to make findings that are materially misleading, if not false, because it lacked the very information that Stanton-EastBanc withheld.”

Separately, Hall said, “The lease was discussed extensively during the Court hearing on September 26, 2013.  SEB now hopes to suppress this evidence that it misled the public and misled the Zoning Commission about key terms of this deal.”  Capitol Hill Corner recently reported the filings related to DMPED’s failure to make the Hine development documents available here:  http://bit.ly/19IqahR

Concern over transparency in the development process has been voiced elsewhere.  On September 24, at an economic development roundtable which included a discussion of the Hine development held by Councilmember Muriel Bowser, she pledged her assistance in making the Hine documents public.  Bowser registered a note of resignation about the deal when she said, “Maybe we didn’t get a good deal (on Hine) but we can’t unwind it,” but she also noted that “stepping up the standard of proactive release of documents” would be in the public interest, and offered her assistance to Mary Fraker, who testified on behalf of the Hine coalition, to expedite that process.



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Hine Coalition Attorney Appeals to Mayor on DMPED’s Failure to Release Documents

Hine Sign

Hine Coalition Attorney Appeals to Mayor on DMPED’s Failure to Release Documents

by Larry Janezich

Last Thursday, Oliver Hall, attorney for the Hine Coalition of residents who are appealing the Zoning Commission’s approval of the Hine project, submitted two filings on behalf of his clients.

The first is an appeal directly to the Mayor regarding the denial of the office of Deputy Mayor for Economic Development (DMPED) of Hall’s FOIA request for documents related to the Hine project.  The filing objects to the failure of DMPED to produce public documents in response to a FOIA request in three instances:  first, its failure to make public contracts available on its website; second, its failure to produce responsive documents; and third, its redaction of portions of public contracts.  All three, the filing says, are violations of DC code.  The letter requests relief from all three and suggests prosecution for any party found to have committed and “arbitrary and capricious violations of the [FOIA].”

The second filing is a letter to the DC Court of Appeals, submitted along with one of the documents Hall was able to obtain from DMPED – a copy of the lease agreement between DMPED and the Hine developers.  The filing states that the lease contradicts information in the Zoning Commission order approving the Hine PUD, specifically that the commission found that SEB would provide public benefits in support of the PUD application including a child care center and financial donations for a playground and the improvement of Eastern Market Metro Plaza, totaling $1,870,455.  In fact, Hall says, the lease allows SEB to deduct this amount from any payments SEB makes to the city under the terms of the lease, meaning that the taxpayers end up footing the bill.

Another developments regarding Hine includes ANC6B Commissioner Brian Pate’s announcement to the ANC6B Transportation Committee last week that, according to the developer, they do not expect to break ground on the Hine project before March, 2014.  The estimate, Pate said, was based on an assumption of a decision rendered in their favor by the US Court of Appeals by the end of this month.  Pate said he thought that timing unlikely.  Pate went on to say that Stanton East Banc has shown no intention to begin environmental remediation, including asbestos removal, before the litigation is resolved, and that remediation must be completed before demolition can begin.

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Hine Has Its Day In Court

Plaintiff's Attorney Oliver Hall

Plaintiff’s Attorney Oliver Hall

Developer's Attorney, Vincent Policy

Developer’s Attorney, Vincent Policy

Stanton East Banc Representatives

Stanton East Banc Representatives

Hine Has Its Day In Court

Court Hears Appeal of DC Zoning Commission Ruling

by Larry Janezich

A three member DC Court of Appeals heard arguments in the appeal of the Zoning Commission’s (ZC) decision approving the Hine development this morning.  Some 25 Capitol Hill residents attended the hearing.

The plaintiff’s attorney, Oliver Hall, argued that the ZC had violated its charter in three instances:  when it permitted Stanton/Eastbanc (SEB) to rely on documents that it did not submit to the Commission or make available in the public record; when ZC failed to issue a specific finding that the 94.5 foot height was appropriate for the Historic District; and when it failed to ensure that the project’s affordable housing met Inclusionary Zoning requirements.  The issue, Hall summarized, hinged on a question of fundamental fairness.

With respect to the failure to submit documents, Hall asserted that this kept from the ZC the knowledge that community benefits and amenities cited by SEB, specifically $50,000 for Metro Plaza improvements and $75,000 for a playground, were in fact paid for by taxpayers – a fact discovered only after the plaintiffs received some of the withheld documents in response to a Freedom of Information Act request.  The ZC is required to determine whether the benefits and amenities balance the developer’s request for zoning relief and Hall called the ZC finding that it did “misleading if not false.”

Hall also said that the ZC gave “great weight” to the ANC opinion, and had the ANC commissioners who voted for a positive recommendation known that the developer would be reimbursed by the city, they might not have supported the PUD request.

As was reported earlier on Capitol Hill Corner, a divided ANC narrowly endorsed the Hine Project on June 12, 2012, by a vote of 6-4.  During the debate on the measure, four Commissioners specifically cited the benefits package as one reason for their support, one going so far as to say that it was a determining factor in her support.  Hine Subcommittee Chair and benefit package negotiator Ivan Frishberg supported the benefits package stating that the process had not been ideal, but had been dictated by what the city did.  “DMPED [Deputy Mayor for Planning and Economic Development) got a great deal for city – not so great for neighbors.”  He said he still believed this will be “a benefit to the community and the benefits package is fair and more productive than others I’ve seen.”  Subcommittee Vice Chair Brian Pate supported the deal saying, “I’ll stand by the benefits package and continue to work to mitigate the impact of the development on the community.”  Commissioner Brian Flahaven, also a supporter, said the benefits package was a good balance between the interests of the neighbors and the interests of Capitol Hill.  Commissioner Kirsten Oldenberg said she had been disappointed in the initial benefits package unveiled the previous week, but as revised by the additional concessions, she could support it.  A nay vote by any of these commissioners would have killed the ANC endorsement, which was in turn relied upon heavily by the Zoning Commission in its ruling.

In court today, the judges questioned SEB attorney Vincent Policy regarding the payments for benefits.  Policy first said it was comparable to the West End Library case, and when the court seemed unconvinced, Policy said it was the deal cut by the city and the question of the source of the funding was not before the ZC.  Further, he said, “If it was so important, petitioners should have raised it before.”

With respect to the affordable housing, Hall said the ZC had made no finding that the development met the Inclusionary Zoning requirement that 8% of the gross square footage of the development must be dedicated to affordable housing for the life of the project.  He said that according to the plaintiff’s calculations, the affordable housing “falls far short of that.”

The court raised the issue of whether the neighbors had standing to raise the question, and also whether the question of the square footage devoted to affordable housing had been specifically raised before the ZC.  Hall replied that the neighbors did have standing in so far as segregated housing (the bulk of the affordable units will be separate from the main project) affected the character of an integrated neighborhood.  He added that while the square footage point might not have been specifically raised before the ZC, the overall question of affordable housing had been.  Although the court suggested that poorly delivered affordable housing represented a generalized harm and not a specific injury that would constitute standing, the question raised by the court, and the answer supplied by Hall, begged a larger question:  if the neighbors did not have standing, who would have standing to appeal Zoning Commission findings—or lack thereof—on the subject of affordable housing.

Also left unclear in the subsequent discussion was the central question about what happens to the affordable housing after 40 years when the units become market value units, though the fact that the parcel on which the units sit was sold outright to SEB seems to indicate they would have some standing to claim ownership.  Hall said the only fair reading of the closing documents is that after 40 years the Inclusionary Zoning requirements expire and “we are left to speculate what will happen.  No guarantee.”

Opposing attorney Vincent Policy was questioned on whether there was sufficient square footage devoted to affordable housing and said in response that the ZC determined that the affordable housing was a public amenity and that the Inclusionary Zoning issue was not before them because of an exemption granted by the Zoning Administrator.  Asked who would make the Inclusionary Zoning requirement binding after 40 years, Policy replied, “the Zoning Administrator.”  With respect to the square footage issue, Policy said, “If the ZC doesn’t know, I’m dumbfounded.”  He went on to assert that the exemption makes the square footage requirement irrelevant.  He said that the ZC was aware of the space devoted to affordable housing but “chose to express it [its calculation] in a different way.”   At that point, the court sharply corrected Policy, saying “You chose to express it in a different way,” underlining the reliance of the ZC on the developer to provide much of the language in the actual zoning order.  Policy replied that the number of units exceeded the Inclusionary Zoning requirement and the Zoning Commission found that the developer exceeded the requirement, not only complied with it.

Hall rebutted saying even exempted projects must set aside same square footage for affordable housing for the life of project and added, “Our calculations show square footage is not sufficient.”

There was less give and take on the height issue, with Hall asserting that the height was addressed in the brief, but not in the zoning order: “Nowhere does it say that the development tops out at 94.5 feet.”  Hall said “The question is, can the ZC approve the project without specifically addressing the height?  Is 94.5 feet ok even though it is next to 30 or 40 foot buildings?  The ZC must consider this before determining it is appropriate.”  Policy replied that he was “incredulous” and said that “the ZC addressed the 94.5 feet height in dozens of places.”  He pointed out that the entire project was not 94.5 feet and that the height was dispersed throughout the project which was stepped down on residential and commercial sides.

The court will issue a ruling on the appeal in the coming months, though timing is uncertain.  In the meantime, according to terms of one of the documents (the second amendment to the LDDA) obtained under a Freedom of Information Request by the plaintiffs, SEB may undertake removal of asbestos, demolition and related preparations of the site before the Finance Closing, under conditions set by the city, one of which is anticipation that construction will begin within 180 days from the start of demolition.

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