CAUSES FOR CONCERN:
Tenley-Friendship Library/Janney Elementary School RFP
1. DMPED’s approach to decision-making about public lands has been unconstrained by law, by any consistent standards, or by procedural safeguards.
a. The Fenty Administration seems to have taken the position that the Mayor (or his designee) may unilaterally decide at any time and for any reason to offer public land for sale or long-term lease to private developers.
b. Section 10-801 of the DC Code clearly envisions that, in order to sell or lease public land, the Mayor must first request that the Council declare such land “no longer required for public purposes.” Yet an RFP was issued without taking this project to the Council. Before the issuance of the RFP, ANC 3E requested that the Mayor first seek Council approval and this request was ignored.
c. The LEAD Act of 2006 (incorporated into the DC Code as part of section 39-101) specifies that any revenue generated by the sale or lease of land, air, or mixed-use development rights involving library properties shall be deposited in a separate trust fund dedicated to funding library facilities. Yet DMPED apparently assumes that any revenue generated by this project can be used for subsidizing school modernization and/or the construction of affordable housing, despite the fact that DCPL is likely to contribute the most and the most valuable land and air rights to the project.
2. David Jannarone, DMPED’s Director of Development, has a clear conflict of interest in this case, yet he has managed this project throughout.
a. Jannarone was employed by Roadside Development from 2004-2006.
b. An “unsolicited proposal from a developer” (i.e. Roadside) was, according to Deputy Mayor Neil Albert, what led to the issuance of an RFP for the Tenley-Friendship Library/Janney School property.
c. Since January 2007, Jannarone, at the request of Susan Linsky (Vice President of Roadside), personally interceded on behalf of this project, and strategized with Linsky about how to get the project authorized. In July 2007, Jannarone met with Mayor Fenty to urge him to issue an RFP for this site; ten days later, ANC 3E Commissioners learned from a DMPED employee that an RFP would be issued.
d. Jannarone apparently waited until August 2007 to inform his direct superior, Valerie Santos Young, that he had a conflict of interest with respect to this project. Though Santos Young offered to relieve him of his supervisory duties, Jannarone continued to be actively involved in managing the project for the next two months, while Santos Young appears to have been largely out of the loop.
e. When the press began inquiring into the conflict of interest story in October 2007, Jannarone lied about his involvement, claiming that it had been minimal, it had occurred more than a year after he left Roadside’s employ, and that it ended in mid-August. Recently FOIA’d document prove all three of these statements false.
f. This issue cannot be resolved by simply excluding Jannarone from the developer selection decision. His conflict of interest has tainted the entire process – leading to the issuance of an RFP at the behest of an ex-employer, rather than on the basis of an objective analysis of whether private development on this site serves the public interest.
g. Given the origins of this project and the lack of any surplussing decision by the Council, the appropriate question at this point is not simply which developer gets to buy or lease the rights to build on this site, but whether this parcel of public land should be on the market at all.
3. DMPED has begged what should have been the threshold questions answered prior to the issuance of any RFP:
a. Will there be surplus land (or excess development capacity) available on this site after the facilities needs of Janney School and Tenley Library are met?
b. If so, should that land/development capacity be devoted to other public purposes ?
c. If there is land available for private use, how much and what land should be made available for what kind of private development?
d. If the project does generate revenue, where should that money be channeled?
These questions have all been left to developers rather than to the Council to answer.
4. None of the expertise of various executive agencies (OCFO, OP, DCPS, OPEFM, DDOT, DCPL) informed the decision regarding whether to issue an RFP.
a. No analysis of public facilities needs was made prior to the issuance of an RFP. Janney School is currently overcrowded and DCPS plans not only to relieve the current overcrowding but to expand the school’s facilities to accommodate 550 students. This will require not only the doubling of the interior space of the school, but also the provision of additional playground space and a multipurpose PE playing field assuming, as is DCPS’s policy, that Janney’s remodernization will bring the school into conformity with current educational specifications. The goal here should not be to preserve existing green space or to minimize the loss of green space to commercial development – we need to ensure that DCPS will have the land required to expand exterior as well as interior programmatic space at Janney School in order to provide adequate educational facilities consistent with the anticipated increase in student enrollments.
b. Nor was there any economic analysis of whether (or on what terms) a public-private partnership would be economically beneficial to the city given that capital funding is already available for both public facilities modernization projects. ANC 3E’s request that the RFP require OCFO and OPEFM to conduct independent analyses of proposals prior to their submission to a selection committee was also ignored. As a result, selection committee members will have only the developers’ representations of the economic benefits and the feasibility of their respective plans to base their decisions upon.
5. DMPED’s reliance on the support of the Ward Councilmember for this project is no substitute for Council oversight.
a. Public lands belong not just to particular neighborhoods but to the citizenry of the District of Columbia as a whole. A Ward Councilmember has no special/unique legal authority to determine the fate of public lands located within the geographical boundaries of his or her district. The Council as a whole is entrusted with the stewardship of public lands.
b. Official Council actions, unlike the actions of individual Council Members, require various forms of publicity and notice.
c. In the Tenleytown case, the Ward Council Member behaved in ways that do not inspire public trust.
i. Susan Linsky, now a VP of Roadside with responsibility for this project, was one of a group of development-oriented professionals who supported Mary Cheh’s candidacy for Ward 3 Councilmember. Linsky, then a DMPED official, was one of Cheh’s most active senior campaign advisors.
ii. Even before she took office, Cheh began lobbying for a mixed-use project at the Tenley Library site, meeting with Ginnie Cooper in December of 2006. At that point, Roadside was the only developer expressing an interest in such a project.
iii. In her e-mail correspondence with Jannarone, Linsky mentions that she “continue[s] to mentor Mary [Cheh] and her staff.” Jannarone opines that DMPED will be more likely to take up the project if Roadside can get the community and/or the Councilmember to invite them in.
iv. In June 2007, Cheh sent a letter, co-signed by Council Member Kwame Brown, to Mayor Fenty urging him to undertake a mixed-use project at the Tenley Library/Janney School site. The fact that Cheh had learned, only two days before, that Roadside’s proposal for the site was based on a gross underestimation of Janney Elementary’s facilities needs (i.e. Roadside envisioned a 13,000 SF addition rather than the 39,000 SF addition called for by DCPS), apparently did not dampen her enthusiasm for the project.
v. Roadside and its principals contributed to Cheh’s campaign fund after her success in the general election. They also made a contribution to her constituent services fund a week before she wrote her letter supporting their call for a mixed-use project at the Tenley Library/Janney School site.
vi. While Cheh did not make public her letter to the Mayor supporting the project, she apparently gave a copy to Susan Linsky or another representative of Roadside Development. (Neither the company nor any of its representatives were cc’d on the letter.) In July 2007, Linsky referenced the letter in a meeting with the facilities committee of the Library Trustees, urging their support for Roadside’s proposal.
vii. Nor did Cheh reveal that she had already sent a letter of support to the Mayor when she asked her community-based Taskforce to poll their organizations about the project and submit their opinions to her by August 3rd. so that she could inform decisionmakers of their perspectives. Although a number of different organizations submitted written responses to her request, Cheh apparently did not forward their comments or otherwise report the results of her polling to DMPED. Instead, on August 5th, she told DMPED that if they wanted to pursue this project it was urgent that they get an RFP out as soon as possible.
6. DMPED has repeatedly attempted to pre-empt ANC involvement in this matter.
a. Unlike Ward Councilmembers, local ANCs do have a special, legally authorized, role to play in local land use decisions. Yet what limited input ANC 3E has had in this process has been hard-fought every step of the way.
b. Without notice, David Jannarone chose to use the ANC 3E’s August meeting, a meeting at which our special committee was scheduled to make reports and recommendations to the full ANC regarding the public-private partnership, as the occasion for announcing that DMPED had already decided to pursue the project, without seeking community input or Council approval.
c. Subsequently, ANC 3E has scheduled community meetings on this project in consultation with DMPED. But twice now, DMPED has changed timelines after the fact in an attempt to render such meetings meaningless. The September meeting scheduled to discuss the draft RFP had to be cancelled at the last minute when the draft was not provided as promised, just days earlier. DMPED then attempted to truncate the comment period on the draft RFP so that the rescheduled October community meeting would take place after the deadline for receiving comments had passed. Pushback from the community and Kwame Brown reversed that decision. Nevertheless, the final draft of the RFP did not incorporate any of the revisions that emerged out of that community meeting and were officially endorsed by the ANC in an emergency session.
d. To date, DMPED has refused to release to the ANC the details of any of the proposals it received in response to the RFP. It plans to schedule the community meeting at which those proposals will be presented sometime after ANC 3E’s February meeting and to name a development partner before ANC 3E’s March meeting.
In conclusion, we offer this case study as an example to use in thinking through the necessary and appropriate role of Council oversight in the disposition of public lands. This is an urgent issue both for our community and citywide.
While we believe that existing law not only authorizes but requires Council action prior to the offer of public lands for sale or long-term lease, we would also argue that if existing law is too ambiguous to prevent such decisions from being made prior to official Council involvement, then the Council must reform the law to enable it to better exercise its oversight function. The whole Council needs to be involved in these decisions from the beginning, because only the Council can provide the appropriate counterweight to DMPED. Such a counterweight is clearly necessary if we want to ensure that public facilities needs are driving decision-making about public lands. Moreover, Council involvement is necessary to ensure that such decisions are made transparently and with public input.
Once lost, public lands are either gone forever or reclaimed only at great expense. The Council has a duty to the people of this city to ensure that the public interest -- rather than the private interests of developers and individuals in government -- is being served when public lands are sold or leased for private use.
Addendum to “Causes for Concern”
On Friday, February 1st, DMPED radically altered the terms of the Tenleytown RFP. Most significantly, it announced that “Any proposal that include [sic] a development program that integrates the Library within the larger redevelopment footprint will no longer be considered responsive.”
This modification came almost a month after the deadline for submissions had passed.
DMPED had previously announced that it received three proposals in response to the RFP.
DMPED notified one developer (LCOR) that it had two weeks to revise and resubmit its proposal to bring it into conformity with the RFP’s new requirements.
It did not notify another (See Forever/Unidev) that the RFP had been amended.
DMPED also did not inform ANC 3E that the RFP had been modified. Commissioners and other community members learned this news from LCOR on Monday afternoon.
Both LCOR’s and See Forever/Unidev’s submissions were heavily dependent on the component of the project (a mixed-use building incorporating the library) that has now been prohibited.
Rumor has it that Roadside’s original proposal may conform to/have anticipated this new requirement.
We hate to rely on rumor (although a number of us involved in the project have a similar recollection of a Roadside rep having said that, in response to community concerns, they were working on a plan that would enable their project to be developed “side-by-side” with the library), but DMPED has refused the ANC’s requests (and the requests of other community members) to make public the proposals submitted in response to the RFP. DMPED also refused the ANC 3E’s and 3F’s earlier requests to include community representatives on the panel reviewing those submissions.
Basically, DMPED has created a situation in which it solicits offers, keeps the details private, revises the RFP after seeing who has proposed what, and then selectively informs respondents of the new requirements and deadlines for meeting them. This project is a lawsuit waiting to happen.
After paying a contractor $83,000 to write a very schematic RFP, DMPED found it necessary to issue major revisions to that RFP long after submissions were due. Ironically, a number of these revisions (including opening up the project to proposals that did not incorporate the library) involve provisions that the ANC requested be included in the RFP before it was issued. But those suggestions were ignored at the time. Had they been included originally, DMPED would have received different and, presumably, better proposals. To impose them retroactively and with an impossibly short schedule for response is both anti-competitive and a recipe for disaster. It was bad enough to ask developers other than Roadside to design a school/library/affordable housing project with a for-profit component in two months over the holidays. To now ask them to create major revisions to those proposals in two weeks is outrageous. This is not the way to build better public facilities.
So in addition to our previous concerns that cronyism (rather than public facilities needs) is driving this project, we’d now like to add that DMPED is proving that its employees are dangerously incompetent in establishing the terms for competitive bidding on public-private partnerships.
