59

ROUTING IN COMBINATION WITH THE INCREASED TRAFFIC
CONGESTION EXPERIENCED ON H STREET HAS RESULTED IN
INCREASED TRAVEL TIME FOR BUSES ON THE TEN ADJUSTED
ROUTES. SINCE THE REROUTING OF THE SERVICE ON MAY 20,
1995, MANY OF THE METROBUS TRIPS OPERATING THROUGH THE
AFFECTED AREA HAVE EXPERIENCED DELAYS AND INCREASED
TRAVEL TIME OF 5 TO 15 MINUTES DURING CERTAIN PERIODS OF
THE DAY. MOST OF THE INCREASE IN TRAVEL TIME HAS BEEN
EXPERIENCED ON WEEKDAYS BETWEEN 8AM AND 8PM. THIS
INCREASE IN TRAVEL TIME HAS DISRUPTED SCHEDULED SERVICE
AND HAD AN ADVERSE IMPACT ON SERVICE RELIABILITY.

IN RESPONSE TO THE TRAFFIC CONGESTION PROBLEMS THAT HAVE
BEEN EXPERIENCED IN THE AFFECTED AREA SINCE THE CLOSING OF
PENNSYLVANIA AVENUE, THE DISTRICT OF COLUMBIA
IMPLEMENTED A NEW ONE WAY STREET PATTERN IN THE AREA ON
JUNE 25, 1995. THIS NEW STREET PATTERN PROVIDES FOR THE
OPERATION OF H STREET ONE WAY EASTBOUND BETWEEN
PENNSYLVANIA AVENUE AND 15TH STREET, THE OPERATION OF |
STREET ONE WAY WESTBOUND FROM NEW YORK AVENUE TO K
STREET, AND THE OPERATION OF 15TH STREET ONE WAY
NORTHBOUND BETWEEN FROM NEW YORK AVENUE TO K STREET.
THE NEW STREET PATTERN ALSO PROVIDES FOR THE CONTINUED
EXCLUSIVE USE OF MADISON PLACE AND THE SECTION OF
PENNSYLVANIA AVENUE BETWEEN MADISON PLACE AND 15TH

3


128

=e even romncoune
ioe Congress of the United States
Poet il Wouse of Representatives

‘hres watour noe COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

peered 2157 Ravounn House OFFICE Buona
‘WasiinaTon, DC 20515-6149

June 8 1995,

Hon, Robert E. Rubin

Secretary , Department of the Treasury
1500 Pennsylvania Avenue, N. W.
Washington, D. C. 20220

Dear Secretary Rubin,

This is to inquire about your Order to the Secret Service closing certain areas adjacent to
the White House. I note that your General Counsel was quoted as saying that you have
authority to take this action. As Chairman of the District of Columbia Subcommittee I
have a responsibility to request information relevant to congressional oversight of such
matters. It is with that in mind that this inquiry is being made. Specifically, could you
please advise me as to the following:

1. What specific authority did you rely upon to close a portion of atleast 2 public streets
adjacent to the White House and to ban public parking on sections of other public streets?

2. What authority do you believe you may have to make these changes permanent, and
‘what plans do you have to make these actions permanent?

3. Do you or the Administration have any plans for future actions of a similar nature?

4. Are any sit

ilar or related actions ofthis type being actively investigated at this time?

$. Do you currently intend to request District of Columbia or Congressional input of
approval of the actions taken or other related matters under review?

6, Do you intend to follow District and congressional procedures for any permanent
actions on this matter? Ifnot, why not and what authority do you have to take such
permanent actions?

7. Lunderstand that a consultant study may have been done for the Department on the
impact of this action on traffic in the District of Columbia along with possible ameliorative.
actions and their impact. If so, please forward a copy for review. Would you object to any


25

between 15th and 17th Streets, N.W., is under the District of Columbia's
jurisdiction, except for the sidewalk area on the South side. The sidewalk area along
the perimeter of Lafayette Park was transferred de facto to the Department of Interior
in 1963 by an agreement between the city and the Department of the Interior.
Jackson Place and Madison Place (except for one small portion of Madison Place
between the sidewalk and the property line at the H Street end of Madison Place on.
the east side transferred de facto to GSA in 1965) are also under the District's
jurisdiction. E Street is under the Park Service's jurisdiction. It is my understanding
that the streets proposed for closing on Capitol Hill, Delaware Avenue, N.E., and C
Street, N.E., are not under the city's jurisdiction but are under the Architect of the
Capitol's jurisdiction.

In view of these conclusions about jurisdiction, the Council is concerned not
only about the District's immediate problems related to this "restriction", but also
about whether there will be any brakes on the federal government's actions in the
future regarding possible other "restrictions" or other jurisdictional issues having to
do with the District's streets. In general, it does not seem to me to be good public
policy to skirt on the edge of the law or to allow such latitude of
interpretation that absolute discretion can be exercised without clear standards and

public scrutiny.


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
WILLIAM F. CLINGER, Jr., Pennsylvania, Chairman

BENJAMIN A. GILMAN, New York

DAN BURTON, Indiana

J. DENNIS HASTERT, Illinois

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

STEVEN SCHIFF, New Mexico

ILEANA ROS-LEHTINEN, Florida

WILLIAM H. ZELIFF, Jr, New Hampshire

JOHN M. McHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

PETER BLUTE, Massachusetts

THOMAS M. DAVIS, Virginia

DAVID M. McINTOSH, Indiana

JON D. FOX, Pennsylvania

RANDY TATE, Washington

DICK CHRYSLER, Michigan

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

WILLIAM J. MARTINI, New Jersey

JOE SCARBOROUGH, Florida

JOHN B. SHADEGG, Arizona

MICHAEL PATRICK FLANAGAN, Illinois

CHARLES F. BASS, New Hampshire

STEVEN C, LATOURETTE, Ohio

MARSHALL “MARK” SANFORD, South
Carolina

ROBERT L. EHRLICH, JR., Maryland

CARDISS COLLINS, Iinois

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, Ja., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

JOHN M. SPRATT, JR., South Carolina

LOUISE McINTOSH SLAUGHTER, New
York

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

COLLIN C. PETERSON, Minnesota

KAREN L. THURMAN, Florida

CAROLYN B. MALONEY, New York

THOMAS M. BARRETT, Wisconsin

GENE TAYLOR, Mississippi

BARBARA-ROSE COLLINS, Michigan

ELEANOR HOLMES NORTON, District of
Columbia

JAMES P. MORAN, Virginia

GENE GREEN, Texas

CARRIE P. MEEK, Florida

FRANK MASCARA, Pennsylvania

CHAKA FATTAH, Pennsylvania

BERNARD SANDERS, Vermont
(Independent)

James L. CLARKE, Staff Director
Kevin Saxo, General Counsel
dupitH McCoy, Chief Clerk
Bub Myers, Minority Staff Director

SUBCOMMITTEE ON THE DistRICT OF COLUMBIA

THOMAS M. DAVIS, Virginia, Chairman

GIL GUTKNECHT, Minnesota

JOHN M. McHUGH, New York

STEVEN C. LATOURETTE, Ohio
MICHAEL PATRICK FLANAGAN, Illinois

ELEANOR HOLMES NORTON, District of
Columbia

CHAKA FATTAH, Pennsylvania

BARBARA-ROSE COLLINS, Michigan

Ex OFFICIO

WILLIAM F. CLINGER, Jr., Pennsylvania

CARDISS COLLINS, Ulinois

Ron HAMM, Staff Director
Howarp Denis, Counsel
ANNE Mack, Professional Staff Member
ROLAND GUNN, Professional Staff Member
ELLEN C. Brown, Clerk
Cepric HENDRICKS, Minority Professional Staff

itte)


119

BF&] Buckhurst Fish & Jacquemart Inc. 72 Fifth Avenue New York, NY 10011 Tel (2121 620-0050
Fax (212) 633-6742

New York, May 10, 1995

Honorable Ronald K. Noble
Under Secretary
Department of the Treasury
Washington, D.C. 20220

Dear Under Secretary Noble:

| appreciated the opportunity to talk to you regarding the potential closure of Pennsylvania
‘Avenue and the creation of a new public space in front of the White House

The cigsure of this arterial would obviously shift significant volumes of traffic on to other
routes parallel to Pennsylvania Avenue. This impact can be mitigated by planning diversion
routes and by informing the drivers about the alternate rautes. A special signage program
should be implemented for about one mile along both approaches to the closed section
Consideration should be given to increasing the capacities along the diversion routes by
possibly eliminating parking at selected intersection approaches, changing the signal phasing
to reflect the additional traffic flows or changing some streets to one-way operation. A
comprehensive media announcement alerting the drivers of the closure and of the potential
traffic delays in the downtown core will also be important to minimize the impacts.

if the short-term impacts can be managed and controlled, | believe that in the long-term this
project will be very beneficial for the area around the White House and for the District of
Columbia. In addition to the security benefits, this project will have positive transportation
policy implications for downtown Washington. Drivers will eventually adjust to the new
roadway system and will either seek other routes that have capacity reserves, or they will
avoid the peak periods or shift to other modes of transponation, such as walk, Metro or bus
transit, These changes are not unusual in our downtown areas, where we have significant
capacity copsteaints and where there are alternatives to the single-occupant auto. These
shifts will also have positive safety and environmental (air pollution and noise) impacts

This project presents a great opportunily for the creation of a new “people space” that will in
elect increase access to the landmarks. This people space could include elements of a park
extension of of a garden, elements of a "democracy-in-action" such as a speakers’ corner and
other pedestrian and tourist activities. The idea that taurists and visitors have to view or
photograph the White House out of their car or tour bus 1s antithetical to the functioning of a
downtown core. The increased pedestrianization in front of the White House will have
positive visual, environmental and safety impacts. These benefits can be increased and
spread wver a larger area by extending the pedestrianization beyond the two-block closure,
without extending the traffic closure. If Pennsylvania Avenue is closed to traffic between
15th and 17th Streets, the traffic volumes on the nwo blacks on either side of the closure will
decrease: significantly (because cars will shift away from Pennsylvania Avenue before they
reach the closed section), thus allowing partial pedestrianization all the way to 19th and
[3th steats This could invalve a possible widening ut the sidewdlks, the addition of
Lindse ping, an alley of trees, etc. Ht will be important 1a ie the new “people space" to the

(Monsan # Desay e Bealdstane nates Sarsnersation «© Epviegamental Analysis,


68

that the closure and resulting traffic congestion has added up to 45

minutes to her commute.

For those traveling from upper northwest or Maryland to the East
End, the added commute time is a major problem. For some it is
not their commute to the office that is affected but their access to
Congress and government agencies that has been seriously
impaired by the closure. The building manager at 1701
Pennsylvania Avenue tells us that it is virtually impossible to get a
taxi on that block. The lawyers, consultants and lobbyists who are
often the tenants in our buildings may be motivated , some fear, to
relocate . On the other hand some are concerned about the value of
properties East of the White House because of the commuter

problems caused by the closure and re-routing of the traffic.

In soliciting comments, the only positive response was the

speculation that perhaps Pennsylvania Avenue offices with views


19

within the District of Columbia and in carrying out federal functions within the District of Columbia
Accordingly, the Home Rule Act prohibited the District of Columbia Council from enacting any act
“which concems the functions or property of the United States..." D.C. Code §1-233(a)(3). We
understand that the Secretary of the Treasury excluded vehicular traffic from (1) Pennsylvania
‘Avenue between 17th Street and Madison Place, (2) State Place, and (3) the segment of South
Executive Avenue that connects to State Place, in order to protect the President and the inhabitants
of the White House. We have been advised by the Department of Justice that protecting the President
and the inhabitants of the White House is a federal function mandated by 18 U.S.C. §3056 and other

relevant statutes.

A statutory street “closing” refers to an action which transfers title to the property under the right of
way from the public domain into public or private ownership to be used for other than through access
purposes for vehicles and/or pedestrians. In such instances, the determination of the ultimate
ownership of the former right of way rests with the D.C Council. Ifthe procedures outlined above
do not occur, there is no street “closing” in the statutory sense Under this definition, the relevant
streets in the vicinity of the White House, as of this date, have not been “closed”; they have been
restricted to exclude vehicular traffic. There is no federal law which requires particular procedures

prior to initiating such a restriction.

As mentioned above, we have been advised by the Department of the Treasury that restrictions were
instituted for the areas in the vicinity of the White House for the protection of the President and the

inhabitants of the White House We understand that several agencies were briefed on this matter

-2-


15

ADDITIONAL TIME FOR COMPLETION.

IN ADDITION, THE RESPONSIBILITY FOR EMERGENCY RESPONSE
AND SECURITY ON THE 1600 BLOCK OF PENNSYLVANIA AVENUE
MUST BE DETERMINED. IT IS OUR OPINION THAT MPD .
CONTINUES TO HAVE JURISDICTION OVER THE STREET. UNDER
OUR PREVIOUS ARRANGEMENT, THE PARK POLICE HAD
JURISDICTION OVER LAFAYETTE PARK, THE SIDEWALK NEAR
LAFAYETTE PARK, AND THE SIDEWALK NEXT TO THE WHITE
HOUSE FENCE. WHILE MPD HAD FORMAL JURISDICTION OVER
THE STREET, IT ALLOWED THE PARK POLICE TO DO THE DAY
TO DAY ENFORCEMENT ON. THE STREET. MPD TOOK OVER
WHEN THERE WERE DEMONSTRATIONS ON THE STREET
SEGMENT. WE WOULD RECOMMEND THAT, IF AND WHEN ANY:
ARCHITECTURAL CHANGES ARE MADE TO THE AREA, FURTHER
DISCUSSIONS ARE NEEDED BETWEEN MPD, PARK POLICE,
SECRET SERVICE, AND THE FBI TO DETERMINE THESE
JURISDICTIONAL AND SECURITY QUESTIONS.


128

between 15th and 17th Streets, N.W.. and of other streets adjacent to the White House complex
(street closure"):

(1) The Council and all well-meaning persons affirm their concern for the safety
of the President of the United States and all other federal protectees following the tragic bombing
of the federal building in Oklahoma City and the growth of the right-wing militia and terrorist
organizations in the United States.

(2) On the basis of information avaitable to the Councit, the Council is not in a
position to question the view of the President of the United States that the street closure is
currently necessary to protect the security of the President of the United States, the White House
complex, and those who live, work and visit in its environs.

(3) This street closure has resulted and will result in significant adverse impacts
upon residents, businesses, and visitors in the District of Columbia. including but not limited to
adverse traffic impacts (including vehicular circulation, parking availability. and commercial
loading and unloading). economic impacts (both direct and indirect impacts upon businesses and
upon short-term and long-term costs and foregone revenues to be bore by the District
government), and historic preservation and environmental impacts,

(4) The federal government should immediately undertake and pay for the entire
cost of a full environmental impact statement and study ("EIS"), as defined in the National
Environmental Protection Act of 1969 and implementing federal regulations, in order to provide
an opportunity for public and governmental (federal and District) participation in the
identification, study, and cost of every short-term and long-term adverse impact resulting from

the street closure, the identification, study, and cost of alternatives (including the "no action”

20

2

22


184

‘Amencan Automob.le Acsociation

aq Potomac
U.S. House of Representatives 701 Fiheerth Streat WW.

Committee on Government Reform Washington, D.C. .:
and Oversight Igton, D.C. 20005-2157
District of Columbia Subcommittee

Closure of Pennsylvania Avenue
June 30, 1995

Lon Anderson
Staff Director
Public and Government Relations

Mr. Chairman and members of the committee, AAA Potomac appreciates
the opportunity to comment on the closure of Pennsylvania Avenue
and ancillary restrictions. On behalf of our 771,060 members in
the greater Washington area, many thcusanés of whom drive in the
District on a daily basis, thank you for your consideration of our
views.

First, we'd like to applaud the resiliency of local residents in
coping with the closures. Their adaptability has been the chief
reason for the limited inconvenience thus far. we'd alec like te
recognize the District cf Columbia, which haa done a fine job of
efficiently minimizing traffic disruptions, ineluding the very
recent directional realignment of H and I streecs.

But while the closures have not occasioned major hassle thus far.
we as a region need to appreciate fully that major access
restrictions of thie kind are nct without cost. Penneylvania
Avenue is a major cross-town artery; its closure inexorably costs
us a degree of mobility, particularly during peak travel periods
when parallel routes have limited excess capacity to take on
Pennsylvania Avenue's six lanes of traffic.

Although closing off 1600 Pennsylvania Avenue may have been
legitimate and necessary, AAA Potomac urges every level of
government to use great caution and exhaustively consider all
famificaticns prior to implementing similar access restrictions on
additiona? facilities and streets.

The moet vieible afterehock of the Oklahoma City tragedy was the
Pennsylvania Avenue decision, which now appears to have triggered
a series of security-enkancing but mobility-restricting measures:
‘The Arlington-based DzA recently requested prohibition of on-street
parking in front of their building. Parking by the Bureau of
Alcohol, Tobacco, and Firearms offices at 7th and Massachusetts is
being blocked to public access. Last week, the U.S. Senate
announced plans to ahut down vehicular accese on the perimeter of
the Russell Office Building and to ban proximate public parking.
And just yesterday, the Administration announced additional
security measures, including more parking restrictions


74

boulders downtown, knowing good and well that you’re certainly
not going to be able to get across downtown the same way you
would if your address is 1750 Pennsylvania Avenue, or some such,
or even the adjoining residential community, and you have choices,
one wonders if you are drawn like a magnet to the choice you
might have made before Pennsylvania Avenue was closed.

In order to change perceptions that may be harmful—leave aside
actual injury—it takes very proactive action, something that is
larger than life to say, “No, we are making room and time and ef-
fort for you, so this is not as bad as it seems.” One of the things
we will be searching for are ways in which to make that happen.

The east side is a critical part of downtown. You could not be
more right. | don’t know of a single downtown in the United States
that is divided. There may be some, but I just don’t know of any.
The one part of town that is a composite whole is downtown. The
rest of the city may be divided in different ways. It’s an important
issue.

Let me ask about—Mr. Seay and Mr. Hoefer—I want to ask
about vehicular traffic. Mr. Seay, you have some one-time costs,
$40,000 to $50,000, and then you speak about how there could be
a loss of ridership—that makes us all tremble at this moment in
Metro’s history—which could be up to $200,000. You talk about on-
going costs of $30,000.

First, let me ask you about the one-time costs. Have these been
reimbursed, or are they being reimbursed as they are incurred?

Mr. Seay. Well, we believe that the District of Columbia is seek-
ing reimbursement, but we have had no indication from anyone
that it will be reimbursed to us directly.

Ms. Norton. Do you know that among the issues that the high-
way department said they would reimburse is the $40,000 to
$50,000 one-time cost to Metro? Has that been—has that come out
of their mouths?

Mr. SEAY. I have heard the District talk about that, but I have
not heard it from them directly.

Ms. Norton. We will ascertain that, specifically, then, because
this is obviously a one-time cost.

Let me move on to the $30,000 of apparent ongoing cost and ask
you to give me examples of what kinds of ongoing costs would be
involved.

Mr. SEAY. OK. Well, one of the ongoing costs is the fact that,
even if the traffic congestion problem does not result in an increase
in travel time, the routes, as they currently operate today, are
longer than they were when they operated via Pennsylvania Ave-
nue.

Now, under our allocation formula, which we charge jurisdictions
for bus service, one of the components of that is a mileage charge.
So jurisdictions get charged a certain amount of cost based upon
the number of miles that buses operate. So in this particular case,
since the routes are longer, and they are going to drive more miles,
there would be an increase in cost to the District as a result.

Ms. Norton. I see. And this is a cost to the District alone, be-
cause of mileage that is incurred for Federal purposes.

Mr. Seay. The ongoing cost would be charged to the District;
right.


32

TESTIMONY OF D.C, COUNCIL CHAIRMAN DAVID A. CLARKE
BEFORE THE SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA OF THE
U.S. HOUSE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
ON THE RESTRICTION OF VEHICULAR ACCESS

TO STREETS AROUND THE WHITE HOUSE

June 30, 1995

Good afternoon, Chairman Davis, Congresswoman Norton and Members of the

Subcommittee on the District of Columbia. Thank you for inviting me to testify today on the
federal government's restriction of vehicular access to streets around the White House and, I
might add now, to certain streets around Congressional and other federal office buildings.

My concerns regarding this issue are set forth in a proposed resolution which I co-

introduced in the Council a few weeks ago with Councilmember Frank Smith, and which the
Council is scheduled to consider at its next legislative meeting on July 11th. Appended to my
testimony is the full text of this resolution, from which I would like to summarize a few key
points:

1

‘These vehicular restrictions have already resulted, and will continue

to result, in significant adverse impacts upon residents, businesses and
visitors in the District of Columbia, including adverse traffic impacts
{i.e., vebicular circulation, parking availability, and commercial loading
and unloading); economic impacts (both direct and indirect impacts upon
existing and new businesses, and upon short-term and long-term costs and
foregone revenues to be borne by the District government), and historic
preservation and environmental impacts.

‘The federal government should immediately undentake and pay for the
entire cost of both an environmental impact statement and study, as defined
in the National Environmental Protection Act, and a historic resources study
as defined in the National Historic Preservation Act. These federal laws
establish processes which would provide an opportunity for public and
governmental (federal and District) participation in the identification,
study, and cost of every short-term and long-term adverse impact resulting
from the vehicular restrictions, and the identification, study and cost of each
action necessary to eliminate or mitigate every adverse impact.


103

4

actions have included closing streets and portions of highways to
protect the President while on travel, closing parking garages to
safeguard against bomb threats, restricting airspace over the
President and cordoning off areas in hotels in which the
President is present.‘ On numerous occasions, certain streets
around the perimeter of the White House, including Pennsylvania
Avenue, have been closed on a temporary basis because the Secret
Service viewed such temporary closures as necessary in connection
with its protective mission. Although we are unaware of any such
closure lasting beyond five days, we believe that you have
authority to close the streets as long as you believe it
necessary to do so to protect the President

As discussed above, the Review concluded that “there is no
alternative to prohibiting vehicular traffic on Pennsylvania
Avenue and the other streets listed above, that would ensure the
safety of the President and others in the White House complex
from explosive devices carried by vehicles near its boundaries."
We conclude that this finding provides sufficient factual support
for you to exercise your authority to close these streets

We believe that the most effective way to execute your authority
pursuant to Section 3086 is to direct to the Directar of the
Secret Service to take this action and to delegate to him the
authority necessary to effect the street closures contemplated by
this memorandum.

Exercising your authority to close these streets under Section
3056, however, is not entirely free of litigation risk.* we
believe, however, that we would likely defeat any challenges to
your authority in this matter.

‘The Secret Service acts pursuant to its collective
authority under Section 3056, 18 U.S.C. 1752 and
3.U,S.C, 202. The Secret Service also has typically taken such
actions with the assistance of state and local law enforcement
officials, and, in certain actions, such as restricting airspace
through federal authorities

*A number of related legal issues are worth mentioning. Due
to the likelihood that closing the streets will be viewed as a
vmajor federal action significantly affecting the quality of the
human environment" under the National Environmental Policy Act of
1969 ("NEPA"), the Department, at a minimum, is required to
consult with the Council on Environmental Quality in connection
with any street closure. Once the streets are actually closed,
the Department will be required to undertake other actions under
NEPA. Under the Administrative Procedures Act, notice to the
public of the streets closures should be posted on site and

subseguently in the Federal Register


39

problem we have is one of give-and-take, and everybody has been
very rational, very grown-up. Nobody is going to endanger the
President of the United States. That’s all “give”—I mean, that’s all
“take,” as far as they are concerned.

But at some point, when we consider the tourists and the effect
on our own revenue, the fact that some people stay an extra day
in this town just to get to go see the White House, that, as the
councilmember just said, if they get out of their buses, their buses
have no place to stay. We have a real problem here. One way is,
just go on and get your bus through, and we won't let other folks
through.

What is the street that comes off of H Street which is a Federal
street?

Mr. KiNG. Madison?

Mr. Rocers. Jefferson.

Ms. Norton. The buses can go down there. Your Metro buses,
they go down there, I guess, to wait.

Mr. KiNG. Madison, yes.

Ms. Norton. Do they go down there to wait until they turn the
route around?

Mr. Kinc. They wait on H, and then they turn down Madison to
get back to 15th.

Ms. Norton. And then they come back up?

Mr. KING. Yes, they come back up.

Ms. Norton. So for the convenience of the Metro buses, they
have done that. We have to think of—and those are buses. They
could be carrying a car bomb, but they are not, because, you know,
everybody knows who the bus driver is, or he has some identifica-
tion, so they let them down there.

None of these things are obvious, and it will take will and deter-
mination to say, what is our loss, and how can we mitigate our
loss? If the Metro buses can go down there, I don’t see why the tour
buses cannot go across Pennsylvania Avenue and retain some con-
venience for members of the public and others.

I want to ask you one more question and it’s about emergency.
Here we have, on one side, George Washington University Hos-
pital, very close to this area. Do you know of any arrangements
that have been made, or is an ambulance put in the same position
of having to find a detour around very crowded streets to get to the
emergency room of George Washington University Hospital?

Mr. Kine. At this time, only emergency vehicles that need to ac-
cess the White House or the residences along Jefferson or Madison
or Pennsylvania Avenue, in the closed area, would be allowed in
the barricaded area. So they would have to find a way around, un-
jase, they were providing some emergency service right in that

lock.

I would also like to say that we did broach the whole idea of al-
lowing tour buses to do the same thing as the Metro buses. We told
Secret Service that, and they did not think that was appropriate
either.

Ms. Norton. Did they give a reason?

Mr. KING. Security concerns is their normal reason.


64

Mr. Davis. Thank you very much.

T turn now to Margaret Jeffers, the executive director of the Dis-
trict of Columbia Apartment and Office Building Association.

Margaret, welcome. Thank you for being here.

Ms. JEFFERS. Thank you, Mr. Chairman.

Good afternoon. My name is Peggy Jeffers, and I am executive
vice president for the Apartment and Office Building Association of
Metropolitan Washington. AOBA is a regional trade association,
representing approximately 90 million square feet of office space,
over half of which is located in the District of Columbia, and ap-
proximately 155,000 apartment homes, approximately 40,000 of
which are located in the District of Columbia.

Like Mr. Fazakerley, we have taken this opportunity to solicit
feedback from our members on the impact of the closing of Penn-
sylvania Avenue; specifically, property owners with buildings along
the Pennsylvania Avenue corridor. While our informal survey was
certainly not as extensive as we believe it should be, I will offer the
following general comments on the real and/or perceived impact
from the closure of Pennsylvania Avenue.

Our members tell us that, as a general rule, city planners and
developers would never consider doing something like this if they
were at all concerned with maintaining property values and keep-
ing an area attractive to business and international tenants.

‘he closure, as expressed by several people we spoke with, has
created two cities by severing the old central business district from
the east end and the rest of downtown. By cutting off a major ar-
tery, commuters from the west are tremendously disadvantaged if
their offices are located in the east end. Anecdotally, many prop-
erty managers have heard that the commuter hardship created for
some is significant, adding up to 30 minutes travel time for some
individuals.

An employee of a member firm who works on the 1700 block of
Pennsylvania Avenue, west of the White House, and who has to cut
across town in peak hours to pick up her spouse, who works around
the vicinity of Union Station, has stated that the closure and re-
sulting traffic congestion initially added up to 45 minutes to her
commute. Apparently, the one-way traffic on I Street now has
helped that significantly. However, she is still talking about 20 ad-
ditional minutes each way, during peak hours.

For those traveling from upper Northwest or Maryland to the
east end, the added commute time is a major problem. For some,
it is not their commute to the office that is affected but their access
to Congress and government agencies that has been seriously im-
paired by the closure.

The building manager at 1701 Pennsylvania Avenue tells us that
it is virtually impossible to get a taxi on that block. The lawyers,
consultants, and lobbyists who are often the tenants in our build-
ings may be motivated, some fear, to relocate. On the other hand,
some are concerned about the value of properties east of the White
House because of the commuter problems caused by the closure
and rerouting of the traffic.

In soliciting comments, the only positive response was the specu-
lation that perhaps Pennsylvania Avenue offices with views over
the new park that is being planned might enjoy a positive impact.


35

and we are still working on that. But you are quite right to bring
that up at this point, and I want to assure you that the matter has
not been dropped. It means jobs; it means streets; it really means
everything at the moment.

I wonder if any of you could compare the volume of traffic that
was normally on the streets involved, 15th Street, 17th Street,
Pennsylvania Avenue, with other streets. Was this square, under
normal circumstances, before the closing, more busy, less busy or,
on the average, simply as busy as other downtown streets?

Mr. Kine. Ms. Norton, I'm Larry King, department of public
works.

This street is a very busy street. It’s one of our major east-west
arteries. Prior to the closing, it carried some 23,000 vehicles per
day. Directly after the closing, there was a significant drop-off in
traffic in the area, as people scuttled to find alternate ways around.
The traffic has now found its way back to H Street and I Street,
because it just takes too long to find other ways around.

So I believe that the traffic——

Ms. Norton. The reason I asked for the relative—because I real-
ly have only a guesstimate from my own experience as a Washing-
tonian, and I know I always avoid 15th Street—this is before the
closing—I always avoided 15th Street and 17th Street. In non-rush
hour or rush hour, I tried to find myself another street.

Pennsylvania Avenue, I suppose, if you could get there, because
it was wide enough, might not be as bad. But 15th Street and 17th
Street were two streets, when you are trying to figure out how to

‘o, that I always avoided. Now, maybe that was simply an anec-

lotal perception. But I am trying to compare that square block
with any comparable block, so that I will have—or perhaps you will
have—some relative sense of what kind of traffic we were already
dealing with there.

This is the kind of question we might have asked ourselves be-
fore this happened in the first place. Before they closed it in the
first place, it might have helped us to know how to go about it.

Mr. McHucu. Ms. Norton, if I may interrupt, I do apologize. Nei-
ther Chairman Davis nor I are as young as we used to be. He is
taking a bit longer to get back. I need a little bit longer to get over
to the floor. As you know, we are on strict 17-minute votes. So I
am going to have to call for what I hope will be a very short—well,
he is getting better. So nice talking to you all.

Ms. Norton. On que.

Mr. Davis [presiding]. [Microphone not on.]

Ms. Norton. I understand that I can proceed.

Could you just give me some relative comparison? I know that’s
difficult, but I am trying to assess the relative difference, frankly.

Mr. KING. It’s going to be difficult to state that right now, but
we are, with the help of the Federal Highway Administration, con-
ducting a study that would give us exactly that information.

Ms. Norton. I appreciate that. If a study is going to make those
comparisons, you are right, we should wait for that.

Mr. Kine. And it will compare before and after, and not only just
this square, but the whole downtown area, from Massachusetts Av-
enue on the north, to North Capitol to the east, and the Potomac
River and Rock Creek Park in the other directions.


67

Our members tell us that as a general rule city planners and
developers would never consider doing something like this if they
were at all concerned with maintaining property values and

keeping an area attractive to business and international tenants.

The closure, as expressed by several people we spoke with, has
created “two cities” by severing the old Central Business District
from the East End and rest of downtown. By cutting off a major
artery , commuters from the west are tremendously disadvantaged
if their offices are located in the East End. Anecdotally, many
property managers have heard that the commuter hardship created
for some is significant, adding up to 30 minutes travel time for
some individuals. An employee of a member firm who works on
the 1700 block of Pennsylvania Avenue, west of the White House
and who has to cut across town in peak hours to pick up her

spouse who works around the vicinity of Union Station has stated


104

5

you may wish to seek permanent legislation as a

Finally,
prudential matter to manifest congressional support for yo
action.
ATTACHMENTS

Tab A CLe Legal Opinion

under Secretary Noble



126

2

provided a briefing to Councilmembers in my office, accompanied by other federal officials,
including Federal Highway Administrator Rodney Slater. The briefing was arranged at the
request of Mr. Noble to present the background and rationale for the action and to address any
questions or concems by members.

At the May 26, 1995 public roundtable by Councilmember Smith's committee, Art Hill, Division
Administrator of the Federal Highway Administrator provided oral testimony to the Council,
which is summarized in the enclosed draft report of the Committee on Housing and Urban
Affairs.

On June 12, 1995, Elizabeth Bresee, Director of the White House Security Review in the
Department of the Treasury, called my office to brief my staff, who later briefed me, on the latest
developments on the part of the Clinton administration. Information was provided on the
administration's short-term and long-term plans on the land use and wansportation aspects of the
closed section of Pennsylvania Avenue. My staff, at my request. faxed Ms. Bresee a copy of the
resolution which Mr. Smith and J had co-introduced in the Council on the Pennsylvania Avenue
closure issue.

On June 13, 1995, Ms. Bresee faxed to my office a copy of letters from White House Chief of
Staff Leon Panetta to Interior Secretary Babbitt and Transportation Secretary Pefia. The letters, a
copy of which are enclosed, basically contain the same information verbally conveyed to my staff
by Ms. Bresee previously. Ms. Bresee indicated that although Mr. Panetta's letters are each dated
June 6, 1995, they were actually not delivered until the afternoon of June 12, 1995.

4, Do you or the Council have a position as to what action should be taken at this time
regarding any future long term plans the Secretary of the Treasury may have? If so, what
is that position?

Yes. My position is set forth in PR 11-172, a copy of which is enclosed.

I appreciate this opportunity to provide you with my views on the recent action to close
certain streets to vehicular traffic around the White House. | look forward to your assistance in
ensuring that a comprehensive process is established which identifies all costs and adverse

impacts related to this action, and which ensures that the federal government pays for all such
costs and for al] measures necessary to eliminate or mitigate the advesse impacts,

erely,
AS A. Clarke

Chairman
Enclosures

cc: All Councilmembers


45

I mean, I used to have this debate, particularly as it related to
economic development, for example, when we brought the Super
Bowl to Minnesota. We saw these incredible economic projections
of how much that was worth to the State of Minnesota.

But one of the assumptions, I think, in the formula, was that, if
they hadn’t had it there, no one would be staying in the hotels and
eating meals, you know, in the twin cities. Now, that’s not really
true. I think we all know that those hotels would have been 70 per-
cent full, approximately, on any given night. So you're really talk-
ing about the margins. I would hope that you would get more spe-
cific about what formula you are going to use, if you are going to
come up and tell us how much it’s going to cost.

Second, though, and I think more to the point—or another point
that I would like to raise, if ’'ve got—oh, my red light is on. Can
I have another minute here?

What is the status of your negotiations with the executive branch
over these security issues and reimbursement for any potential ex-
penses?

Mr. Kinc, We've had discussions with the executive branch to
the tune of $165,000 for traffic-related issues. Federal Highway has
already put money up for that, and we draw down against that.
There are other costs which are reimbursable, which are for police
officers, et cetera. Also, there is direct payment to Metro for the
costs of Metro. There is additional cost for——

Mr. GUTKNECHT. What does it cost Metro?

Mr. Kinc. There is the relocation of bus shelters. There are
changes in bus routes which increase the driver time. And we sub-
sidize Metro for their costs when it goes above what we have
agreed to, based on these changes. That’s about $45,000 for the lat-
ter; $23,000 for relocating shelters.

Let me also speak about parking. You say, if someone doesn’t
park at one meter, they will park at another. There are 245,000
regulated parking spaces in the District of Columbia. On any given
day, there are 1 million to 1.5 million cars in the District of Colum-
bia. If you take parking away, they are not going to park at an-
other meter, because there is not another meter for them at which
to park. So that’s our dilemma. When we take parking out, we defi-
nitely lose revenue, and I can verify that.

Mr. SmitH. Mr. Chairman, if I might just be allowed to add one
thing to that.

Mr. Davis, Sure.

Mr. Smit. I might just tell you that the person who took your
place out in the county, Mrs. Hanley, when she and I served on the
Metro board, told me a story about driving into the District of Co-
lumbia one day to do some shopping. She looked around and
couldn’t find a meter; tried to park at a hotel where she would
have paid a lot of money to park, couldn’t find a parking place, so
she went back home.

So, you know, if you don’t find a meter here, you may not stay
here. ’'m sure we lost—she’s known as a big shopper. I’m sure she
would have done a lot of shopping if she had been able to find a
place to park.

Mr. Davis. Yes, that’s true. That was a big loss for you that day.
Please don’t tell her I said that.


87

3

the District's zone system cab drivers are not compensated for the increased travel time.

Finally, although the federal government has assured us that the District will not be
liable for costs associated with the closure, the business community remains sensitive to this
issue, The District government should not be forced to bear the financial obligation, not
only because the closing is directly related to a matter that is a federal interest, but also
because the District played no role in determining the circumstances under which the
closing was implemented. Moreover, too often in the past an increased taxation of

Chamber members has been the solution when the District faces a financial burden.

We hope that any further discussions regarding a permanent solution to the
Pennsylvania Avenue reconfiguration will involve District government officials and address
the concerns of the business community. The District of Columbia Chamber of Commerce
stands ready to assist this Committee and the federal government in efforts to devise a
long-term strategy for improving security around the White House in a way that is not an

undue burden on District residents and businesses.


FOR YOUR INFORMATION AND TO GIVE YOU A FRAME OF
REFERENCE FOR THESE RECENT EVENTS, I WOULD LIKE TO
RECAP THE ACTIVITIES OF THE PAST FEW MONTHS.

IN EARLY APRIL, 1995, THE DISTRICT OF COLUMBIA
DEPARTMENT OF PUBLIC WORKS (DPW) AND THE
METROPOLITAN POLICE DEPARTMENT (MPD) BECAME AWARE
THAT THE DEPARTMENT OF THE TREASURY WAS CONSIDERING
A CLOSURE OF PORTIONS OF PENNSYLVANIA AND E STREET.
HOWEVER, THESE INITIAL CONTACTS WERE IN THE FORM OF
CONSULTATIONS. THE DISTRICT INITIALLY ADVISED AGAINST
THE CLOSURES. HOWEVER, AFTER THE OKLAHOMA CITY
BOMBING, WE WERE INFORMED THAT THE CLOSURES WOULD
OCCUR.

WHEN IT BECAME CLEAR THAT THE CLOSURES WERE TO BE
MADE, DPW AND MPD TOOK THE FOLLOWING IMMEDIATE

STEPS:


INFORMATION HEARING ON THE CLOSING OF
PENNSYLVANIA AVENUE

FRIDAY, JUNE 30, 1995

U.S. House OF REPRESENTATIVES,
SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 12:10 p.m., in room
2154, Rayburn House Office Building, Hon. Tom Davis (chairman
of the subcommittee) presiding.

Present: Representatives Davis, Gutknecht, McHugh, and Dele-
gate Norton.

Ex-Officio present: Representative Clinger.

Staff present: Ron Hamm, staff director; Anne Mack and Roland
Gunn, professional staff members; Howard Denis, counsel; Cedric
Hendricks, minority professional staff; and Jean Gosa, minority
staff assistant.

Mr. Davis. Good afternoon and welcome to our informational
hearing on the closing of Pennsylvania Avenue.

Pennsylvania Avenue is a major arterial road for the District of
Columbia. It was part of the L’Enfant plan for the development of
Washington, DC. Pennsylvania Avenue connects the Capitol to the
White House and has been called “America’s Main Street.” Any
closing of this historic street has enormous symbolic impact, wheth-
er the closure is temporary or permanent.

On May 19, 1995, Secretary of the Treasury Robert E. Rubin
signed an order prohibiting vehicular traffic on Pennsylvania Ave-
nue and on certain other streets adjacent to the White House. The
Secretary delegated to the director of the U.S. Secret Service “all
necessary authority to carry out such street closings.”

The need for Presidential security and for temporary arrange-
ments to effect that security is not questioned. Rather, this hearing
will inquire into the authority to effect permanent changes to city
streets in the District of Columbia and to assess the consequences
of the actions taken regarding Pennsylvania Avenue.

It is essential for Congress to be certain that proper procedures
were followed. An important distinction must be drawn between
temporary and permanent changes to city streets. The law provides
that both the District of Columbia government and Congress have
a key role to play in any street closings.

Commuters and other motorists entering the District have a vital
stake in the orderly flow of traffic. The impact of any change to a
major city street such as Pennsylvania Avenue must be carefully
evaluated with this in mind.

()


42

the temporary restriction, as they would call it. It has cost us, tem-
porarily—or I should say permanently—already millions of dollars.

Thank you, Mr. Chairman.

Mr. Davis. Ms. Norton, thank you very much.

Ms. Norton. I think Mr. Rogers had something to say.

Mr. Davis. Mike, do you want to say anything?

Mr. RoceErs. Yes, I wanted to add that it’s not just about Penn-
sylvania Avenue. We have requests, in the wake of Oklahoma City,
from several other Federal agencies that would like parking restric-
tions in front of their buildings, that would like for us to take out
parking meters. So I think that we're going to need to work to-
gether with the council and the Congress to have some way of han-
dling this issue.

As the chairman points out, it’s not just about reimbursement,
but there is impact on the businesses in our community, as well.
We want to work with you on a way to resolve this Federal Govern-
ment/District government issue.

Mr. Davis. Mr. Rogers, let me say, I appreciate that. And Dave,
l appreciate your comments, as well. As you know, this is an execu-
tive branch decision. Nobody called Ms. Norton and asked her what
she thought about it. No one called me. No one called the Speaker.
The executive branch is where the decision came from in this case,
and we're trying to deal with it equitably.

This process starts with a formal oversight hearing. What follows
will have to be seen. But we want to know what the effect of the
closure is on the city. We want to know the unintended con-
sequences of this action, so that we can deal with them effectively.

T would say, Mr. Rogers, that we must continue this dialog. We
need to stay informed, so that we are aware of all the consequences
of decisions made by the Secret Service and by other Federal agen-
cies. The city must be treated fairly and as a partner in this proc-
ess.

Because of the timing of this, there was really, I gather, no time
to consider the District’s opinion. In fact, I was not there the night
before. I picked up a message the next morning. It said, “Dad, call
Mr. Rubin,” and had a phone number. I didn’t know what it was
about, and my son had just put it down next to the sports page.
I happened to see it the next morning and called Mr. Rubin at 8
on a Saturday, and he was in his office, and explained that he had
tried to contact me. But we were, of course, not consulted.

Hopefully, this hearing is part of the dialog with you and the ex-
coutive branch, and we're going to continue our dialog at this level,
as well.

We must continue this dialog. We are going to have differences,
but I think we have more in common. We're trying to keep those
common bonds uniting us as we go after the waiver on the match-
ing money, and those kinds of things where we recognize it’s not
in the city’s interest, but it’s in the region’s interest and the Na-
tion’s interest to waive some of these things, and not treat you like
Pennsylvania. It is a city. If they want to make DC a State, then
they can treat DC like Pennsylvania, as we move through this.

T appreciate your comments. I now recognize the vice chairman
of the committee, the gentleman from Minnesota, Mr. Gutknecht.


73

Ms. JeFrERS. In other words, if the problem for the tenants in
your building is a commuter issue, then that impacts, potentially,
the value—perception of folks for where they want to be in the city.
If the impact is really quantified based on what you do during the
day—so, for example, if your building is filled with lobbyists and
lawyers who want to access this body of Congress, and they are
west of the White House, it makes their accessibility impaired
somewhat to get up here.

So it really depends. Again, those who were speculating as to the
effect of this didn’t have any studies in front of them, couldn't real-
ly give us any statistics. There was no evidence, really, to support
making a statement like, “There’s a 5-percent diminution of value
for properties on the east end.” So I would be reluctant to say that
on the record, but I do think that it is a concern.

Ms. Norton. Mr. Fernandez.

Mr. FERNANDEZ. Yes, Ms. Norton, thank you.

I don’t have any data, per se, but I can tell you that there is the
perception that the closing of Pennsylvania Avenue has caused ad-
ditional traffic jams, a loss of parking, and that is yet another in-
convenience, on top of many other inconveniences which people go
through to live here and also to do business in the city. Simply be-
cause there is the perception of the lack of parking and the traffic
jams, I would say that, yes, it does have an effect on the property
values.

Ms. Norton. And on whether or not people decide to live in
those adjacent areas?

Mr. FERNANDEZ. Correct. Or rent office space in the downtown
area.

Ms. Norton. Mr. Fazakerley.

Mr. FAZAKERLEY. The two answers that you just received, I
think, are instructive that, again, what is all the data? And again,
it’s the feelings; it’s the perceptions; it’s the uncertainty. I think
one overriding fact that we could subscribe to today is that any-
thing that dislocates or divides the downtown can have a dampen-
ing effect on the very thing that we’re trying to do in the down-
town, which is to retain and attract more businesses for the future.

To the extent that we have decisions that have to be made, such
as the one we're testifying about today, that we can go about our
business, in a professional way, to quickly assess what the impacts
are. and then to mitigate those impacts, that’s what we really need
to do.

So it’s hard for us to give you a clear-cut answer on that. The
answer is “Yes; yes.” On one side, yes; on the other side, yes. But
the overriding factor is, I don’t think it’s a good feature to start to
divide our downtown, in terms of dislocation. We need a free flow
of commerce in the downtown. To the extent that this has inter-
rupted this, maybe, on a certain level, unnecessarily, I think we
need to get at the root of it and solve it.

Ms. NorRTON. You said an important word, though. I think it was
you, Mr. Fazakerley. You said “perception.” Let’s assume what
seems unlikely, that there is no effect on travel and business.

Mr. FAZAKERLEY. That’s unlikely.

Ms. Norton. And yet, like the stock market, when people react
to their perception of what this means—and seeing these huge


82

and an intersecting one-block section of 8th Street, these streets
were, again, restricted to vehicular traffic back in the 1970's. I be-
lieve it was the early 1970's, before 1975.

And pedestrian improvements were installed in those streets as
pedestrian ways. It was part of a program that was called the
“Streets for People” program at the time.

Mr. Davis. Thank you very much. That’s good knowledge. I ap-
preciate it.

I recognize the ranking member of the subcommittee, Ms. Nor-
ton.

Ms. Norton. Thank you, Mr. Chairman.

Mr. Gresham.

Mr. GRESHAM. Yes, ma’am.

Ms. Norton. Do you know of any—you cite streets that have
been closed—do you know of any artery in the District of Columbia
as major as Pennsylvania Avenue that has ever been closed down
and incurred improvements as a result of its being closed down?

Mr. GRESHAM. The examples that I cited, Ms. Norton, I don’t be-
lieve carried the level of traffic that the Pennsylvania Avenue sec-
tion in front of the White House carried.

Ms. Norton. Thank you. Are you aware of—what is your view
of what was done, I believe it was in the 1960’s, on F Street?

Mr. GRESHAM. The improvements—the “Streets for People” im-
provements, if they are the-——

Ms. Norton. The divided——

Mr. GRESHAM. There were two different developments in F
Street. One was the median that was placed in, I think, two or
three blocks of F Street.

Ms. Norton. Yes, that’s the one.

Mr. GRESHAM. I believe from 12th to 14th. That actually occurred
before I began to work with the Planning Commission, although
just a few years before. I was not involved in that. I was with the
Commission when the “Streets for People” improvements took place
a little further east on F Street.

[ think, if you are talking about a personal opinion——

Ms. Norton. I am.

Mr. GRESHAM [continuing]. The recent restoration of that street
has, I think, been done very attractively. I think the median was
somewhat ill-maintained over the years and did become a problem
in that particular section of F Street.

Ms. Norton. And, of course, it became a major traffic problem
in F Street. On a cost-benefit analysis, I know of nobody with an
interest either in the aesthetics or in the traffic effect who regarded
that as an advance. It had something to do with the hubris of be-
lieving that we could improve upon the original plans, the L’Enfant

lan.

P I am wondering whether we continue with such hubris. Do you
believe that we can improve upon the Lafayette Park environment
in front of the White House?

Mr. GRESHAM. Well, I believe—again, it’s—Ms. Norton, if you
will bear with me for just a moment. Of course, I’m a staff person
who is here on behalf of a 12-member commission. And the com-
mission, of course, sets policy and would ultimately make a deci-
sion based upon a proposal put before it as to whether or not they


INFORMATION HEARING ON THE CLOSING OF
PENNSYLVANIA AVENUE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE
DISTRICT OF COLUMBIA

OF THE

COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS
FIRST SESSION

JUNE 30, 1995

Printed for the use of the Committee on Government Reform and Oversight

ci

U.S. GOVERNMENT PRINTING OFFICE
37-704 CC WASHINGTON : 1997

For sale by the U.S. Government Printing Office
‘Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-054187-5
a



108

and grounds and to posted, cordoned off, or otherwise restricted areas where the President
is or will be temporarily visiting.” 18 U.S.C. § 1752(4)(2)

‘The legislative history of the statute suggests that, when enacting section 1752.
Congress believed the Secret Service already had similar or greater authority to control
access to the environs of the White House. In 1969, Senator Hruska introduced S, 2896.
stating that its purpose was “to provide more effective contro! over unauthorized entry into
the temporary residence of the President. and any buildings which are being temporarily used
as executive office buildings.” 115 Cong. Rec, 25436 (1969) «statement of Sen. Hruska)
The Senate Judiciary Comminee report accompanying S. 2896 stated that the bill would
“extend Federal protection to temporary residences and offices of the President." S. Rep
No. 1252, 91st Cong., 2d Sess. 6 (1970)(emphasis added). The report also mentioned that
the bill was “designed to provide a uniform minimum of Federal junsdiction for Presidentiat
security when the President is on temporary visits,” id., noting the testimony of the Director
of the Secret Service that “{f}rom a security standpoint, the President is most vulnerable
when he is outside the White House complex traveling or residing temporarily in some other
section of the country” and “the enactment of [the] legislation is necessary in order to
ruarantee the safety of the President when he is temporarily absent from the Executive
residence.” Id. at 6-7. Finally, reflecting the belief that federal law already was adequate to
ensure protection of the President within the vicinity of the White House, the report opined
that “fallthough the Secret Service is charged with protecting the person of the President
there is. al the present time, no Federal statute which specifically authonzes them to restrict
entry to areas where the President maintains temporary residences or offices." Id. at 7.

Similar themes were expressed during floor debate on the bill. In describing the
problems confronting the Secret Service when protecting the President outside of
Washington, Senator McClellan stated

Protecting the President... is a formidable task for the Secret Service. which
is charged with safeguarding the personal life of the President. As difficult as
this task is. however, it is rendered even more difficult because the Secret
Service's present powers are somewhat limited. Title I8, section 3056 of the
United States Code authorizes the Secret Service to protect the life of the
President, but does little more. Consequenily, the Service must rely upon a
patchwork of State laws and local ordinances and local officers to clear areas
for securty penmeters. 10 provide for free ingress and egress when the
President is visiting. and to protect the President's private homes from
trespassers

116 Cong. Rec. 35651 (1970)fstatement of Sen. McClellan)

Moreover, Senator Hruska. speaking in support of the legislation. declared



Lawmence
‘Semoe Vicz Passer, ADarasTesON June 28, 1995

181

CHAMBER OF COMMERCE rey
or HE
Unrrep STATES OF AMERICA ‘ a!

Wastamctox, D.C. 20062-2000
B. Keaus oe Os

‘The Honorable Thomas M. Davis
Chairman of the Subcommittee

‘00 the District of Columbia
Government Reform and Oversight Committee
B-349A,
Rayburn House Office Building
‘Washington, D.C. 20515

‘Dear Mr. Chairman:

‘As a long time resident of the District of Columbia, the U.S. Chamber of
Commerce appreciates this opportunity to address the recent vehicular closure of
‘Pennsylvania Avenue, N.W. and suggest recommendations for the improvement of traffic
flow in the area, especially on H Street.

Tho U.S, Chamber of Commerce (Charu) ba bon highly vise presence
in the District of Columbia since 1924 when its beadquarters building

the tite of the Corcoran mansion at the corner of Connecticut Aveme aad Et Steet, N.W.
— just acroas H Street from Lafayette Park. The U.S. Chamber building itself is on the
National Register of Historic Places, and was designed and constructed to tie in t0
‘Lafayette Square and the White House. To many, President's Park does not simply stop
at the northem end of Lafsyene Park, but contines across H Street to the U.S. Chamber
of Commerce headquarters building, the Hay-Adams Hotel and St. John’s Church, Jn
reality, H Street and these historic buildings are the narthem boundary of Lafayette Park.

‘We have been a participant in the daily life of Lafayette Park for over seventy

years. With such a historical and geographic perspective, the Chamber would like to
tier you is view of the fe, and tafe, around Latayete Park ~ the monumental center
of Washington.

H Street N.W., between Pennsylvania Avenue and New York Avenue, is now &
‘major West-East transportation corridor. If H Street is to successfully function as one of
this city’s principal cross-town thoroughfares, the District of Columbia must eliminate
parking, standing, loading and unloading on any portion of H Street, and must enforce




109

{Under S. 2896, the] Secretary of the Treasury would be authorized to
designate by regulations buildings and grounds which are temporary residences
of the President and temporary offices of the President and his staff. The
Secretary also would be authorized to prescribe regulations for admission to
such buildings and grounds and to post or cordon off restricted areas where the
President is or will be temporarily visiting It would be unconscionable
not to recognize the obvious fact that the President's vulnerability is,
maximized when he is traveling or residing temporarily in another section of
the country. It would be unconscionable not to recognize the obvious fact that
the Secret Service does not presently possess adequate Federal authority during
these most vulnerable occasions. This body cannot ignore the obvious
responsibility and duty it fas at this moment to create the needed protection
and authority.

116 Cong. Ree. 35653 (1970) (statement of Sen. Hruska).*

It is clear that Congress did noi perceive that it was giving the Secretary greater
power to protect the President when he was away from the White House than when he was
within it, Rather, the language and legislative history of section 1752 reflect a belief that the
authority afforded by section 1752 with respect to temporary residences already was available
with respect to the President's permanent residence, the White House

Section 1752 plainly grants the Secretary authority to limit ingress and egress 10 an
area where the President will be visiting to create a security perimeter, even when creating
such a perimeter will require the closing of a public street to vehicular traffic. Since
congressional action did not reflect any intent to give the Secretary greater authority under
section 1752 than exists under section 3056, it would be incongruous for us to conclude that
the Secretary has such authority with respect to temporary presidential residences but lacks
the authority to limit ingress and egress to an area to create an appropriate security perimeter
around the White House.

Tuming back to the language of section 3056. we note again that Congress painted
the Secret Service's Presidential protection authority with a broad brush. That treatment
seems reasonable, given the nature of Presidential protection services. “Protecting the
President requires a certain amount of flexibility to respond quickly to changing and often
potentially dangerous situations, Too tight a rein on the authority of the Secret Service
would compromise Presidential security. As we have stated in affirming the authority of the
Secret Service, under section 3056. to cordon off the area in the vicinity of the White House
as @ protective measure in anticipation of {arge-scale demonstrations, “the Secret Service may
not have unlimited powers in protecting the President but its powers are broader than routine

+S. 2896 was passed by the Senate on October 8, 1970. see 16 Cong. Ree 35654 (1970), and
incorporated into the Omnibus Crime Contro} Act of 1970. Pub L. No. 91-ha4.1it. V9 18, 4 Stat, 1880
1891 (1971)

-5-


30

There is a process by which they could get out of building hous-
ing by making a contribution to our housing production trust fund.
So there are some amenities associated with it, depending upon
how much it enhanced the value.

Also, if there were a loss of, for example, income, as is the case
here, where you are losing parking meters and things like that, we
would factor that into what we would require the property owners
to pay the city as compensation.

Mr. Davis. What I would like to do now, if there is no objection,
we are pleased to have the chairman of the City Council, David
Clarke.

David, I need to swear you in. If you would, please stand up.

[Witness sworn.]

Mr. Davis. We are very pleased to have you here. I understand
you were chairing a meeting on the arena prior to coming.

Mr. CLARKE. Yes.

Mr. Davis. You don’t need to give us a report on that now. We
can talk afterward, but that’s of vital concern to all of us.

Mr. CLARKE. We consulted with your staff, and we were told that
you wanted all that homework done before you went to your July
12 hearing. So we were trying to do that.

Mr. Davis. I am glad to hear you are working on it.

Mr. CLARKE. We had scheduled this hearing that we had today
before we got the word.

Mr. Davis. That’s fine. We’re glad to have you here.

Mr. CLARKE. That's the reason I’m late.

Mr. Davis. Go ahead.

Mr. CLARKE. I’m not sure what my colleague, Mr. Smith, has cov-
ered. He is certainly familiar with it all. I have referred to his com-
mittee the legislation that he and I introduced, by way of resolu-
tion, into the council, to make a statement by the City Council with
respect to the closure of Pennsylvania Avenue and its effect upon
the city.

It is not a piece of legislation, although it is our general counsel’s
view and it is my view that, under the District of Columbia code,
the council must be in an approval posture—or disapproval pos-
ture—of a permanent alley closing; i.e., a closure where the title to
the land actually is conveyed.

We have two different kinds of uses of the word “closure,” an
alley or street closure; that is, the land kind of title that I’ve just
spoken to, also the question of stopping some activities upon a
street, which occurs frequently throughout the city for various pur-
poses.

So what we are dealing with, with this resolution, is a statement.
We will see in the future whether we have to deal with the issue
of the permanent alley closure and what happens under that.

Not wanting to be repetitive, but if you will forgive me and inter-
rupt me if I am wrong to be repetitive with my colleague, whose
committee it is to oversee this matter, he and I have introduced
this resolution, and on May 26, less than a week after the restric-
tion was placed on us and our city, Mr. Smith’s Committee on
Housing and Urban Affairs had a hearing. On June 22, it marked
up its report and proposed resolution. We are going to vote on that,


89

DEPARTMENT OF THE TREASURY
WASHINGTON. 0.C.

ASSISTANT SECRETARY dune 27, 1995

‘The Honorable Tom Davis
Chairman

District of Columbia Subcommittee
Government Reform and Oversight Committee
United States House of Representatives
Washington, D.C. 20515-6143

Dear Mr. Chairman:

Thank you for your letter of June 8, 1995, in which you requested information
concerning the closing of a segment of Pennsylvania Avenue and State Place to vehicular
taaffic.

Enclosed are responses to the specific questions contained in your letter. Please do
not hesitate to contact me if [ may be of further assistance in this matter.

Sincerely,

1b Padextoo
t inda L, Robertson
Assistant Secretary

(Legislative Affairs and Public Liaison)

Enclosure


84

a very hard time coming up to the standards that the commission
has usually established, it’s just not going to happen.

Let me just ask your view on one other matter. If Pennsylvania
Avenue were a piece of public property, and there was a big depart-
ment store that had the idea that you could make a wonderful
plaza there if you simply closed the street, and got permission to
do so, I take it that you would agree that that action would be sub-
ject to the District of Columbia street closing and alley closing pro-
cedures?

Mr. GRESHAM. Yes, ma’am.

Ms. NorTON. The only reason it may not—and that is still an
open legal question—is because the street, though under the “juris-
diction” of the District, was closed by Federal authorities.

Mr. GRESHAM. Right.

Ms. Norton. This matter may or may not fall under the Dis-
trict’s street and alley closing authority, but I can tell you this
much, it’s a “taking,” as far as the District is concerned, on either
side. It is impossible to believe that if you have an apartment
building on either side, that you can rent for what you could rent
the day before the closing. It’s impossible to believe that people
who have deliveries made have property values that are unaffected.

We won't know the real answer to that for some years to come.
But that is why, as far as most of us are concerned, this is not the
time to leap forward with plans for change. The dust has hardly
settied on Pennsylvania Avenue. The testimony that has come be-
fore us is, if you take those cops away, the whole of downtown gets
strangled.

So this has been a most unsettling occurrence, coming in the
midst of the District’s virtual insolvency. Most who have come be-
fore us today have not questioned the need. What we have ques-
tioned is the lack of give-and-take on how to proceed following the
closing.

So as far as this member is concerned, the closing is a tem-
porary—indeed, even the Secret Service calls it a “restriction.” It
will be some time, I can assure you, before the NCPC is going to
have much to do about this.

Mr. Chairman.

Mr. Davis. Ms. Norton, thank you.

Thank you very much, Mr. Gresham, for being with us and shar-
ing your very extensive knowledge of the history of this and other
closings.

Mr GRESHAM. Thank you, Mr. Chairman.

Mr. Davis. I would like to enter into the record a written state-
ment submitted by the District of Columbia Chamber of Commerce
and by the American Automobile Association, and a consultant’s re-
port and follow-up statement sent to the subcommittee by Mr. Rob-
ert Morris, who advised the Treasury Department on this matter.

(The information referred to follows:]


12

SERGEANTS FOR SUPERVISION, AND ONE LIEUTENANT TO
DIRECT THE OPERATION. HOWEVER, SINCE THIS IS A
VOLUNTARY DETAIL, NOT ALL OF THE POSTS ARE ALWAYS
FILLED. ACCORDING TO AN AGREEMENT BETWEEN MPD AND
THE DEPARTMENT OF THE TREASURY, THE DEPARTMENT WILL

BE REIMBURSED AT A RATE OF $33.29 PER HOUR AS FOLLOWS:

DATE OFFICERS WORKING HOURS
5/22 44 289
5/23 50 351.5
5/24 36 243
5/25 33 221
5/26 40 285.5
5/30 35 238.5
5/31 32 253.5
6/1 41 303
6/2 42 359.5
6/5 29 268

6/6 48 294


54

Obviously, we know these readily-available explosive materials can cause
severe damage if the quantity uf the waterialy were large envugh. A quautity
large enough to possibly cause severe structural damage to the White House
would have to be transported by a large truck. Why not simply ban trucks
and/or delivery vans from the vicinity of White House?

Hf the availability of the materials are a contributing factor to the threat on the
President's life, is there a way to control the distribution and sale of these
readily-available products? Can the users of these products be licensed?

Unfortunately, the President, other public officials, the White House, and all
other government buildings will never be completely frae from tha
possibility a terrorist attack. Why did the Secret Service choose to close the
avenue? Is the probability of a terrorist attack on the President's life more
likely to come from the front of the White House than from other places?

Does the Secret Service have any plans to close the Hotel Washington (across.
the street from the Treasury building), which has guest rooms and a rooftop
restaurant overlooking the private quarters of the White House? I have
eaten on the rooftop restaurant and have seen people, through the windows,
inside the President's apartment.

What is the likelihood of Marine-One (the President's helicopter) being shot
down by a terrorist? Can the Department of Defense, the FBI or the National
Security Agency account for all the surface-to-air missiles distributed in the
United States? What are the odds? Will the President never again ride a
hellcapter?

What is the likelihood of the President's motorcade passing by or
encountering a large truck? When the President delivers a speech at a major
hotel, the streets to and from the hotel are fairly predictable. Is the Secret
Service planning to tow 2ll cars and trucks parked near a motorcade?

What is the probability of an attack on the President during a public
appearance? I personally know of a recent breach uf security. With Mr. Ken
Palmer, I attended a gala for President Clinton on Wednesday night at a
major hotel in Washington, DC. During dinner, Mr. Palmer, looking for a
restroom, left the ballroom through the nearest exit, which shut closed
behind him. When he returned, Mr. Palmer went through an opened a
catering-service door into the ballroom and back to his table. He did not go
through a metal detector when returning from the bathroom. Mr. Palmer
later shook hands with the President. Is the Secret Service going to prohibit
the President from making public appearances to decrease the odds of a
terrorist attack?

Although the closing of Pennsylvania Avenue had been discussed for
months and probably years, the actual decision to block the avenue came as a


96

from a

Investigation into the Feasibility
of Closing Streets in the Vicinity of
The White House

Investigation has been made into the feasibility,

traffic engineering viewpoint, of the closing of

the following streets.

Constitution Avenue between 15th & 17th Streets

E Street between 15th & 17th Streets

Pennsylvania Avenue between 15th & 17th Streets

H Street between 15th & 17th Streets

15th Street between Constitution Avenue and
Pennsylvania Avenue

17th Street between Constitution Avenue and
Pennsylvania Avenue

Using current peak hour traffic data furnished by
the D.C. Department of Public Works, and the most

jlogical diversion of traffic with each street closure,

it was

*

determined that:

The closing of Constitution Avenue would result
in unacceptable congestion.

The closing of E Street would result in
unacceptable congestion.

Pennsylvania Avenue could be closed with traffic
diverted to H and I Streets.

H Street could be closed provided Pennsylvania
Avenue remains open.

The closing of 15th Street would result in
unacceptable congestion.

17th Street could be closed, with traffic
diverted to 18th and 19th Streets, but there
would be heavy congestion on parts of 19th St.

ROBERT L MORAN. INC. ad


75

Ms. Norton. You talk about the pattern—you say you are not
sure what the pattern of inconvenience is because of street pattern
changes that are only a week old. I take it you are referring to the
one-way streets.

Mr. Seay. Right. That’s correct.

Ms. Norton. Do you believe that the one-way streets will signifi-
cantly help Metro buses, in particular?

Mr. Seay. Based on our discussions with the District staff, we
think that it will eliminate a lot of the problem that we have expe-
rienced since May 20. But I think it would be very premature to
say that it is going to eliminate the problem. I think we really don’t
know that until we've seen it.

As you heard before, there’s a lot higher level of enforcement,
traffic enforcement, in the area right now. We don’t know what the
long-term traffic enforcement will be. And we don’t know what the
impact of pulling that enforcement out will be.

So I don’t really think, until August or September, when things
have had a chance to settle down and get into more of a routine
will we really be able to see the impact from a long-term stand-

joint.

p Ms. Norton. What, if any, effect has the presence of these de-
tailed police had on Metro buses, in particular? Then I would like
to ask Mr. Hoefer if he has seen any effect of the police who have
been apparently temporarily placed around the area.

Mr. Seay. Well, I think, certainly it’s a beneficial impact. I think,
as you noted earlier, with regard to the impact that they have on
rush hour traffic in this area, I think they have helped. And I am
concerned that when they are pulled out that it could have an ad-
verse impact.

Ms. Norton. Mr. Hoefer.

Mr. Hoerer. Yes, I would agree with that statement. One of the
problems mentioned to me by some of my courier members is the
fact that, with having removed some of the parking zones that
were there before the closure of Pennsylvania Avenue, it has taken
away some of the loading zones, and by that it causes some of the
commuter traffic to occupy some of the space that had been there
before the closing, left for commercial parking.

Now that space is no longer available, and it makes it more dif-
ficult for the drivers to get in and out to deliver their packages.
And with the presence of the police there, as it stands now, a lot
of the couriers feel that it keeps the traffic moving. Without the po-
lice presence there, their fear is that that traffic may stall, and
that will make it even more difficult for them to make their deliv-
eries.

Ms. NorTONn. Well, I don’t see how it can be argued there should
be preferential treatment for the Capitol complex, when it comes
to cops stationed out there to direct traffic, particularly since there
have been no closings in the main arteries of the Capitol complex.
Still we have these cops making sure that everybody keeps going.

There has been a closing here that affects businesses, residents,
commuters. I don’t see how this is going to be viable if those cops
leave. And I can tell you who can’t pay for them. Guess.

Ms. Jeffers, you indicated that any benefit might come from some
park that might emerge—well, they are going to have to come by


36

Ms. Norton. Do you yet know how many parking places have
been lost or how much parking revenue has been lost to the Dis-
trict?

Mr. Kinc. We have the parking revenue that we have lost to
date, $62,000 in parking revenue. That includes meters as well as
we also know how many tickets are generally given on each meter
in town.

Mr. Norton. I’ll bet you do.

Mr. KiNG. That’s factored in also.

Ms. Norton. That money, I take it, is not being reimbursed?

Mr. KING. It’s part of what we’re asking for.

Mr. ROGERS. Yes, it’s part of what we’re asking for. We think it
should be reimbursed. It has not been reimbursed yet.

Ms. NorTON. There were promises to reimburse the District for
certain expenses. I would like to know—and they even named—the
Federal Government, the Treasury Department named some of
those expenses. Could you give me an idea of what expenses they
have already said they would reimburse?

Mr. Kina. Well, the Federal Highway Administration has given
us $165,000 to ease the traffic and street problems that this
caused. As Mr. Rogers indicated, Treasury has indicated it would
reimburse us for the Metropolitan Police doing the traffic duty. And
that is entered into the record, the amount for each intersection.
The total we think is about $450,000.

Ms. Norton. But they have not said that specifically they will
reimburse us for lost parking meters?

Mr. KING. Not yet.

Ms. Norton. Now, beyond the parking meters, you spoke in your
testimony—I don’t know whose, Mr. Rogers or Mr. Clarke—about
the detail of police who are directing traffic. You also indicated that
they are not there permanently.

Mr. Rocers. Temporary assignment, off-duty police officers.

Ms. Norton. By the way, why are they voluntarily there? You
said it was a voluntary detail. Why aren’t they simply assigned
there and the city reimbursed, or somebody else assigned there?

Mr. Rocers. Well, if they are off-duty, you know, it certainly has
to be voluntary.

Ms. Norron. I see. Oh, yes, I see. These are people who have al-
ready——

Mr. Rocers. Right.

Ms. Norton. I see. I understand.

Mr. KinG. Done their tour of duty, and this is additional work.

Ms. NorTON. I see. The money to pay them, to pay the detail,
comes up front rather than being reimbursed?

Mr. RocErs. I don’t know that specific detail. That is worked out
between MPD and Treasury.

Ms. Norton. For the record, I would like to know that. In light
of the District’s shortfalls, if there is going to be money involved,
reimbursement does not seem to me to be the best way, during this
period, to deal with it. I would appreciate that information within
the next week.

If this detail were to be pulled back next week, what would be
the effect on traffic?


48

where to go. In short, there have been dramatic impacts arising
from essentially dividing the downtown.

I am sure you have heard a lot, and you will be hearing more
this afternoon about those effects. At this point, however, I should
like to comment on another observation consistently made in my
discussions with the business community.

No one I have talked to is attempting to second-guess the deci-
sion that closing Pennsylvania Avenue was necessary to properly
protect the President. The essential point, I feel, is that the closing
and its impact dramatically illustrate the close and unique rela-
tionship that exists between the Federal Government and the Dis-
trict of Columbia.

Actions taken by the Federal Government can and do have a di-
rect effect on the daily lives of the residents and businesses of this
city. It is a relationship that very clearly calls for communication,
coordination, and collaboration.

I understand that security considerations dictated the closing of
Pennsylvania Avenue be done promptly. The public study of the
issue before the fact might indeed have given rise to the kind of
action the closing was intended to avert. Nevertheless, such public
study is necessary, albeit after the fact, to formulate a response
that minimizes the negative impacts of the closing and takes us
from an anecdotal level to a more factual level.

I also understand that such a study is to be commissioned by the
Federal Highway Administration. I hope that is, in fact, the case.
We need a professional economic impact study and a sound, long-
term traffic plan. That is just common sense. My own experience
also strongly suggests that both the Federal and city govern-
ments—both the Federal and city governments—should participate
in defining the scope of the study and in the active review of its
findings and recommendations.

Departing from my testimony, what I'm trying to say there,
clearly, is that the local government and the Federal Government
be equal participants and owners of that study. I would also urge
both governments to solicit the close participation of all of us in the
business community in conducting the study; again, I think, a fair-
ly commonsense recommendation.

Accordingly, the D.C. Building Industry Association is prepared
to volunteer the experience and expertise of its members. This is
not only an opportunity to address a particular problem, that is, to
mitigate the fong-term consequences of the closing of Pennsylvania
Avenue, it is also a larger opportunity to demonstrate that the Fed-
eral Government, the city, and the Washington business commu-
nity can work together. With that collaboration, we can better ad-
dress other problems arising out of our unique relationship.

Thank you.

[The prepared statement of Mr. Fazakerley follows:]


7

a final and permanent footing. In other words. as we construe the statute and regulation. the
“undertaking” that requires prior consultation with the Council must be one that would effect
a permanent change in the character and use of the site

Common sense dictates that the NHPA could not require the Secretary to comply with
the consultation and review procedures of the section 106 process in a manner which would
compromise the Service's ability and mission to ensure the safety of the President and others
in the White House compiex. A contrary result would render the Service’s broad authority
under 18 U.S.C. § 3056 ineffective; it cannot be that Congress intended that the NHPA
could mandate adherence to its procedural requirements when such adherence would directly
interfere with the Secret Service's statutory duty to protect the President of the United States

We believe that if the Secretary, as the exigencies permit, provides the Council with
notice of the Service's protective actions and requests the Council's comments on the actions,
the Secretary will be deemed to have complied with the NHPA’s requirement (hat the agency
head afford the Council a "reasonable opportunity” to comment. Of course, whether any
given opportunity is reasonable depends on the particular circumstances at issue

4. National Environmental Policy Act

You have also expressed concern about the possible impact of the National
Environmental Policy Act of 1969, Pub. L. No. 91-190. 83 Stat, 852 (1970), as amended
(codified at 42 U.S C. §§ 4321-4370) ("NEPA"). and its related regulations concerning
federal agency action, on the Secretary's ability to immediately close the identified streets,
Without expressing a view as to whether or to what extent NEPA might apply to the street
closings. we note that NEPA’s emergency exception is broad enough to permit the Secretary
to proceed after brief consultation with the Council on Environmental Quality. Section
1506 11 of title 40, Code of Federal Regulations. provides:

Where emergency circumstances make it necessary to take an action with
significant environmental impact without observing tthe [NEPA regulations. |

the Federal agency taking the action should consult with the {Council
on Environmental Quality] about alternative arrangements. Agencies and the
Council will limit such arrangements to actions necessary to control the
immediate impacts of the emergency. Other actions remain subject to NEPA
review,

We believe that the necessity revealed by the White House Security Review of enhancing the
security perimeter around the White House is an “emergency” within the meaning of this
regulation. Accordingly. we believe that the Secretary may close the designated streets
without running afoul of NEPA. If possible, the Secretary should consult with the Council
on Environmental Quality concerning alternative arrangements prior to closing the streets at
issue


53

‘Testimony given by Hon. Henry L. Fernandez, Chairman of the DuPont
Circle Advisory Neighborhood Commission 2B, before the Subcommittee on
the District of Columbia (Committee on Government Reform and Oversight),
US. House of Representatives, on June 30, 1995,

Chairman Davis,

1am Commissioner Henry Fernandez, Chairman of Advisory Neighborhood
Commission 2B, known as the DuPont Circle ANC. This ANC is located in
Ward 2, in the North West section of the District of Columbia. The southern
end of the DuPont Circle ANC roughly covers the area bounded by 15 Street
on the east, Pennsylvania Avenue on the south, and 20 Street on the west.
The stretch of Pennsylvania Avenue closed-off by the Secret Service is located
along the southern end of the DuPont Circle ANC.

On May 10, 1995, at the regularly scheduled meeting of the DuPont Circle
ANC, the seven Commissioners unanimously passed a motion opposing the
closing of Pennsylvania Avenue in front of the White House. Commissioner
Jonathan Heller, who intzoduced the motion before the ANC, is here with
me today.

In my opiaion, Mr. Chairman, the closing of Pennsylvania Avenue appears
to be unwarranted and capricious, has caused unnecessary inconveniences
and wasted money. Equally important, due notice was not given to those
who live and work in the District. Before the closing of the avenue, the
public did not have the opportunity to comment and to provide alternative
measures which may have enhanced the security around the White House.

While not being privy to the alleged security concerns, if, in the opinion of
experts, the alleged threats on the life of the President were to be valid, 1
would personally support the closing of Pennsylvania Avenue.

Why just close Pennsylvania Avenue?

Given the information made available ta the public, It seems to me that
security risks, which could lead to a bombing similar to that which destroyed
the Oklahoma City federal building, led to the closing of the avenue. Not
being an explosives expert and acknowledging the distance between the
White House door and the front gate, it seems inconceivable to me that a
bomb made of readily-available materials, such as fertilizers and petroleum,
and exploded on Pennsylvania Avenue, would significantly affect the
structure of the White House.


49

Testimony of
Greg Fazakericy, President of
‘The District of Columbia Building Industry Association
"Pennsylvania Avenue Closing”
House of Representatives
Subcommittee on the District of Columbia
Friday, June 30, 1995

I'm Greg Fazakerley — Chairman and CEO of DRL, a real estate development company here in
Washington...

I'm also a resident of the city...

As president of the District of Columbia Building Industry Association, I should like to take just
a few moments to express the views of our association — as they relate to the recent closing of
Pennsylvania Avenue...

In assembling those views, I've taken the opportunity to discuss the closing with a number of
people doing business in downtown DC...

My comments here today, therefore, are necessarily anecdotal — but they represent opinions and
observations that are quite consistent...

The closing of Pennsylvania Avenue, in short, has had a negative impact on business in and

Which, of course, is no surprise ~ a major east-west traffic artery in the central business district
has been blocked..

‘Commuting times have gotten longer; parking, more difficult; and for retailers, pedestrian traffic
patterns have been disrupted, sales are off, and office tenants looking to relocate are now unsure
about where to go. In short, there have been dramatic impacts arising from essentially dividing

the downtown.

I'm sure you'll be hearing more this afternoon about those effects...

At this point however, I should like to comment on another observation consistently made in my
discussions with the business community...


78

NATIONAL CAPITAL PLANNING COMMISSION
‘801 PENNSYLVANIA AVENUE, NW, SUITE 301
WASHINGTON, DC. 20576

STATEMENT OF
THE NATIONAL CAPITAL PLANNING COMMISSION
before the
SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
U.S. HOUSE OF REPRESENTATIVES
June 30, 1995

Mr Chairman and members of the Committee. My name is Robert Gresham and I am the Deputy
Executive Director of the National Capital Planning Commission Thank you for the opportunity to

present to this subcommittee an explanation of the statutory procedures for closing streets in the

District of Columbia and the role of the National Capital Planning Commission in that process.

In 1932, Congress delegated 10 the District of Columbia government the authority to close streets
within'the District. This authority was continued in the Home Rule Act. Under D.C. law, before the
District of Columbia Council may consider a street closing, the Mayor must, among other things,
refer the application to the National Capital Planning Commission for its recommendations. D.C
Code §7-422(3). In addition, two other statutes give authority to the District of Columbia
government to dispose of property, including streets, to be used for other than street purposes. See,

D.C. Code §8-104(b)(2) and D.C. Code §8-111

Notwithstanding these delegations of general street closing authority, Congress also made clear in

the Home Rule Act that the federal government maintains a strong interest in federal property located


88

Mr. Davis. The subcommittee will continue to work with the Dis-
trict and the administration on this issue and intends to have a
subsequent hearing on this matter.

At this point, I ask for unanimous consent to enter into the
record letters from the subcommittee to the Secretary of the Treas-
ury, the Mayor, and the council chairman, together with their re-
spective responses.

Hearing no objection, it is so ordered.

(The information referred to follows:]


43

Mr. GUTKNECHT. Thank you, Mr. Chairman. I apologize for being
late. We've got two meetings going on at the same time and we've
got votes on the floor. If you would indulge me, Mr. Chairman, I
do want to make a comment that has nothing to do with Penn-
sylvania Avenue.

Mr. Davis. You won't be the first one to do that here today.

Mr. GUTKNECHT. I’m not giving an opening statement, but I do
want to say publicly and on the record that there’s an editorial this
morning in the Wall Street Journal that talks about school choice.
I want to congratulate Mayor Barry and School Superintendent
Franklin Smith for something that they are embarking upon with
the Washington, DC, schools, relative to Privatizing some of the
schools and offering, perhaps, some kind of a limited voucher plan.

Obviously, I think I would like to see them go even further with
that. But when elephants fly, you don’t criticize them for not stay-
ing up there very long. So I just wanted to say that for the record,
Mr. Chairman.

Second, I would also say that I’m not convinced—and we've had
several briefings about this issue and about security around the
Capitol—I remain a healthy skeptic as to whether or not we should
be going as far as we are. In fact, I think, of the two most serious
security breaches that we’ve seen around the White House, neither
one closing off Pennsylvania Avenue would have done anything
about.

One gentleman flew an airplane into the White House, and an-
other gentleman climbed a fence. It wouldn’t have made any dif-
ference whether—you could close off all the streets, if somebody
wants to use an airplane, it seems to me.

But I do want to get, finally, down to the specific subject area
of this hearing today. I understand you've talked a little bit about
this formula. Can you tell us a little more about how you are deter-
mining what these costs are, what kind of a formula you're going
to use?

Mr. Rogers or Mr. Clarke.

Mr. Rocers. I'll start. In each case, if we, for instance, have costs
associated with changing street signs—I mean, that’s labor; that’s
material—if we are having to remove parking meters or impose re-
strictions that are revenue generating, there’s a record that is iden-
tifiable. There may be others.

Are there others?

Mr. KiNG. Yes. Also, we’ve estimated the cost for all the traffic
mitigation measures, changing the streets and what have you, so
we have estimated costs for that. And we have been drawing down
from the Federal Highway Administration that put up a pot of
money to take care of that.

On parking, as Mr. Rogers says, we have a record of how much
each meter brings in, not only in just meter revenue, but also ticket
revenue. Also, there is a specific number of hours that the Metro-
politan Police officers are staffing intersections for traffic control,
so we know how much that costs.

So this is not so much a formula as actually looking at historic—
actual cost and then saying, this is what it’s going to take.

Mr. CLARKE. That is correct, with respect to those costs. But
there is a greater cost.


129

alternative) to the street closure, and the identification, study, and cost of each action necessary to
eliminate or mitigate every adverse impact of the street closure.

(S) The federal government should immediately undertake and pay for the entire
cost of a review of the street closure’s effect on historic resources, pursuant to procedures set
forth in the National Historie Preservation Act ("NHPA") of 1966 as amended.

(6) The federal government should pay for the entire cost of eliminating or
mitigating every adverse impact resulting from the street closure, with federal funds which are
not part of the annual Federal Payment to the District govemment nor pant of any other federal
funds which would otherwise be provided to the District government, and without regard to any
expenditure limitation to which the District government is subject.

(7) The federal government should ensure that the area of the street closure be
designed in an aesthetically pleasing manner which maximizes pedestrian and visual accessibility
and which recognizes the temporary nature of the street closure, such as by retaining some type
of paving along Pennsylvania Avenue and by neither planting wees nor constructing permanent
structures on Pennsylvania Avenue.

(8) This temporary street closure by the federal goverment should not be
considered a precedent for similar future actions by the federal government.

Sec. 3. The Council of the District of Columbia requests appropriate representatives of
the executive and legislative branches of the federal government to enter into a written
Memorandum of Understanding with the Mayor of the District of Columbia which memorializes
the principles and procedures set for in this resolution for the street closure.

Sec. 4. The Secretary of the Council of the District of Columbia shall transmit copies of

20

2

22


118

legislative operations; and fer the monuments pertaining to the nation’s past"). See also id_
al 116 n.1, quoting Hearings on Self-Determination for the District of Columbia. Pan 2. 93d
Cong., Ist Sess. 52 (1973) (statement of John Nevius. former Chairman of the Council)
(For the purposes of identifying these Federal functions, we are speaking basically of three
things: First, the function regarding Federal buildings and propenies; second. the conduct of
Federal business . . . and third, the function of international relations and matters concerning
the diplomatic corps").

Here, unlike the situation in Techworld, Congress has delegated by statute to the
Secret Service the indisputably federal function of protecting the President. In this context.
we believe that D.C. Code § 1-233(a)(3) establishes that the Council may not assert its
authority where doing so would interfere with the Secret Service's ability to carry out its
congressionally-mandated function of protecting the President

Second. the streets slated for closing are located within the National Capital Service
Area, a geographic area comprising many of our national governmental buildings and
monuments, the White House. the National Mall and other areas. over which Congress in the
Home Rule Act reserved some federal administrative authority. Section 739 of the Home
Rule Act. Pub. L. No. 93-198. tit. VIL, § 739 (codified at 40 U.S.C. § 136). established the
National Capital Service Area. It also established the position of a presidentially-appointed
National Capital Service Director within the Executive Office of the President and charged
that office with assuring “that there is provided . . . adequate police protection and
maintenance of streets and highways" within the National Capital Service Area. 40 U.S.C. §
136(b)

The National Capital Service Area provision was added to the Home Rule Act as a
floor amendment. Suggesting that the National Capital Service Area was an area of
heightened federal interest within the District of Columbia, the chief sponsor of the
amendment, Representative Green, stated that the National Capital Service Director "would
have jurisdiction (within the area] over the police department. fire protection, over sanitation.
the streets. the roads and accesses to them." 119 Cong. Rec. 33611 (1973) (statement of
Representative Green). See also id, at 33645 (". . . the President would appoint a Director
of Federal Area Services who would be responsible for police protection, fire protection,
sanitation, the streets, and access to roads"). While the language and legislative history of
the provision do not suggest that the District of Columbia has no jurisdiction over the
National Capital Service Area, they do suggest that Congress considered the federal
government's interest in areas within the National Capital Service Area to be greater and
more important than is interest in areas outside the National Capital Service Area. We
believe this reservation of federal governmental interest further supports the Secret Service's


122

of reimbursement for costs and or revenue foregone?

8. What is your opinion or the views of the District government as to what course of action the
Treasury Department should take on the matter of reimbursement?

9. What is your position on the appropriate course of action for the Treasury Department or other
federal Executive Branch entities to pursue for any long term or permanent closure of
Pennsylvania Avenue or architectural changes to the pavement?

This clearly is a matter of interest and concern to both the District of Columbia Government and
this Subcommittee. I look forward to working with you, and would very much appreciate an
expeditious response to these inquiries.

Sincerely,

Tom Davis, Chairman,
District of Columbia Subcommittee,
Government Reform and Oversight Committee

ce: Secretary Robert E. Rubin
Speaker Newt Gingrich
Del. Eleanor Holmes Norton
Chairman William Clinger
Congresswoman Cardiss Collins
Members of the District of Columbia Subcommittee
Senator William Cohen
Council Chairman David Clarke


127

cdc0S/closing,

A PROPOSED RESOLUTION

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

To recognize the heightened concer about the safety of the President of the United States
following the bombing of a federal building in Oklahoma and the growth of the right-
wing militia and terrorist organizations in the United States, and to call upon the
federal government to undertake and pay for an environmental impact statement on the
federal government's closure of streets adjacent to the White House and to pay for
all measures necessary to eliminate or mitigate all adverse impacts identified by the
environmental impact statement.

RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this
resolution may be cited as the “Closure of Pennsylvania Avenue Resolution of 1995".
Sec. 2. The Council of the District of Columbia makes the following findings and

recommendations regarding the federal government's vehicular closure of Pennsylvania Avenue

35
36
37

38


CONTENTS

Page
Hearing held on June 30, 1995 .. 1
Statement of:
Fazakerley, Gregory W., president, District of Columbia Building Indus-
try Association; Dr, Henry L. Fernandez, chairman, Advisory Neighbor-
hood Commission 2B; Millard Seay, director of planning, Washington
Metropolitan Area Transit Authority; Margaret O. Jeffers, Esq., execu-
tive vice president, Apartment and Office Building Association of Met-
ropolitan Washington, and Ken Hoefer, executive director, Washington
D.C. Area Trucking Association 47
Gresham, Robert, deputy executi
‘ommission 716

Rogers, Michael C., city ai jeputy
District of Columbia, accompanied by Larry King, Mfirector of public
works; Frank Smith, chairman, committee on housing and urban af-
fairs, Council of the District of “Columbia; and David A. Clarke, chair-
man of the Council of the District of Columbia 4

Letters, statements, etc., submitted for the record by:

Clarke, David A., chairman of the Council of the District of Columbia,
prepared statement of ..
Davis, Hon. Thomas M., a Representative in Congress from the State
of Virgi
Letters from subcommittee to Secretary of the Treasury, Mayor, and
council chairman, with responses ...
Statements submitted by the District of Columbia Chamber of Com-
merce, American Automobile Association, and a consultant's report
and followup statment sent be Robert Morris
Fazakerley, Gregory W., president, District of Columbia Building Indus-
try Association, prepared statement of .
Fernandez, Dr. Henry L., chairman, A
2B, prepared statement of .
Gresham, Robert, deputy ex:
Commission, prepared statement of -
Jeffers, Margaret O., Esq., executive vice president, ment and Office
Building ssociation of Metropolitan Washington, prepared statement
of .. 66

32

89

49
53.
78

Rogers, Michael C., city administrator and deputy mayor for operations,
District of Columbia, prepared statement of ... 7
Seay, Millard, director of planning, Washington Metropolitan Area ‘Tran-
sit'Authority, prepared statement of ... 58
Smith, Frank, chaisman, committee on housing and urban n affairs, Coun-
cil of the District of Columbia, prepared statement of .. 20

«ay


106

traffic of portions of three streets that bound the grounds of the White House: (1)
Pennsylvania Avenue between 17th Street and Madison Avenue, (2) State Place. and (3) the
segment of South Executive Avenue that connects into State Place. Id. You have also
informed this Office of your view that the conclusion of the White House Security Review
provides sufficient factual support for the Secretary to exercise his authority to close the
streets mentioned above. Id.

We have been informally advised that in the past. the Secret Service has taken, on a
temporary basis, actions similar to those contemplated. These actions have included closing
streats and portions of highways to protect the President while traveling. closing parking
garages to safeguard him against bomb threats, restricting airspace over the President. and
cordoning off areas in hotels in which the President was present ' The Secret Service has
also, on occasion, temporarily closed certain streets around the perimeter of the White
House. including Pennsylvania Avenue?

fl. Legal Analysis
A. Statutory Authority
1. Section 3056

Section 3056 provides, in pertinent part. that “[uJnder the direction of the Secretary of
the Treasury, the United States Secret Service is authorized to protect...”

(1) The President, the Vice President (or other officer next in the order of
succession to the Office of President). the Presidemt-elect. and the Vice
President-elect [and]

(2) Tue immediate families of those individuals listed in paragraph (1).

IS USC. § 3056(a)(1)-(2)

In addition to that broadly-stated authority, officers and agents of the Secret Service
are authonized, under the direction of the Secretary. to perform certain enumerated

We have been advised by the Department of the Treasury that the Secret Service has historically (ahen
these steps pursuant to its authority under 18 U.S.C. §§ 3056 and (752, and 3.U.S.C. § 202, We have also
been informed that the Secret Service generally takes such actions with the assistance of state and local law
enforcement officials

‘The Department of the Treasury has informed us that East Executive Drive was permanently closed 10
vehicular traffic by the National Park Service in 985. According to the Department of the Treasury. when the
Park Service closed East Executive Drive it consulted with the District of Columbia's Department of
‘Transportation but did not file an application for street closing under the District of Columbia's street closing
procedures, :

-2-


66

Good Afternoon, my name is Peggy Jeffers and I am the Executive
Vice President for the Apartment and Office Building Association
of Metropolitan Washington, Inc. (AOBA)

AOBA is a regional trade association representing approximately
90 million square feet of office space, over half of which is located

in the District of Columbia and approximately 155,230 apartment

homes.

Upon receiving notice of this hearing Monday of this week, my
staff began to solicit feedback on the closing of Pennsylvania
Avenue from members with office buildings located within close
proximity to the Pennsylvania Avenue corridor, east and west of

the White House.

While our telephone survey was certainly not extensive I offer the
following general comments on the real and/or perceived impact

from the closure of Pennsylvania Avenue.


52

We know the tens of thousands of dollars it cost in police time
and in routing the traffic patterns. It is not clear to me that the
inconvenience and expense caused by the closing of Pennsylvania
Avenue significantly increases the safety of the President.

I see the closing of the Avenue as something comparable to build-
ing, perhaps, a medieval moat, and filling it with water to protect
a lord. Sure, this measure increases security around the White
House, but it is unreasonable. There will always be security con-
cerns around public figures and buildings; however, these are rel-
ative. Some concerns are more worrisome than others.

Again, given the information generally available to the public on
the closing of the Avenue, and knowing that there are other secu-
rity concerns, it seems to me that the closing of Pennsylvania Ave-
nue was a capricious reaction to the Oklahoma City bombing. It
doesn’t seem to me, and to the ANC commissioners, that the per-
manent closing of Pennsylvania Avenue is warranted.

Thank you.

[The prepared statement of Mr. Fernandez follows:]


101

2

the White House complex from explosive devices carried by
vehicles near the perimeter.

Analysi

The authority to protect the most significant Constitutional
officer of the Federal government should be construed broadly
Indeed, courts have long recognized the paramount importance of
protecting the President.* Even when Constitutional rights are
implicated, such as First Amendment rights, courts have
recognized the “substantiality" and "significance of America’s
interest in presidential security."’ The “unigueness and
importance" of protecting the President has also persuaded courts
to sanction “greater limitation than would be applicable
generally" with respect to the use of public streets

Section 3056(a) provides in relevant part that

"Under the direction of the Secretary of the Treasury,
the United States Secret Service is authorized to
protect the following persons: (i) the President, the
Vice President...(2) the immediate families of those
individuals listed in paragraph (1)...." 18 U.S.C.
3056(a)*

‘wThe Nation undoubtedly has a valid, even overwhelming
interest in protecting the safety of its Chief Executive..
Watts United Stat 394 U.S. 705, 707 {April 22, 1969)

White House Viel] for the ERA Committee v. Clark, 746 F.2d.
1518, 1528 (D.C. Cir. 1983}. “At stake 1s not merely the safety
of one man, but also the ability of the executive branch to
function in an orderly fashion and the capacity of the United
States to respond to threats and crises affecting the entire free
world." Id. We note that closing streets to vehicular traffic
would not violate any Constitutional rights.

“A Quaker Action Group v. Morton, 516 F.2d 717, 729 (D.C.
Cir. 1975).

°A separate statutory section, 18 U.S.C. 1752(d), authorizes
you to take certain actions necessary to protect the President
while he is visiting or temporarily working or residing in a
particular locale away from his permanent residence at the White
House. The legislative history makes clear that the purpose of
the statute is to clarify the Secret Service's authority to
provide zones of protection for persons that it‘is authorized to
protect under Section 3056.


26

Costs and Revenues

Tam going to gloss over this issue because of testimony others will be giving.
It is important to indicate for the record of your hearing that the District understands
that it has a commitment for reimbursement of its immediate costs from the federal
government which will not count against its FY 95 budget cap or, to be hoped, the
federal payment. I urge you not to allow these costs to count in any way against our
cap or the federal payment. In the case of the Department of Public Works, federal
highway fund monies with no match will be used and carried under the city's capital
budget. In the case of the Metropolitan Police, short-term costs will be handled
through direct billing to the Department of Treasury, and these costs will be in the
non-appropriated budget classification. I understand that a good number of the
parking meters originally removed from service will be restored to service so that our
long-term revenue loss in this respect can be reduced, as can the costs to local
businesses. I am pleased that the interests of various of our businesses and churches
have been addressed to the degree that they can be addressed by the administration.
{ worked, for example, with the administration in securing an arrangement for the
Riggs Bank on Pennsylvania Avenue across from the Treasury Department to have
a tum-around access and limited parking. Finally, in addition to the longterm

concem about revenue loss, a major issue is that of the effect of the “restriction” on

8


22

and evidence submitted at the hearing and in the report, that the District has
jurisdiction, as distinguished from ownership, over much of the area entailed by the
Treasury Department's "vehicular restriction". By reference to the report you will
find that the city's jurisdiction rests on two pillars.

The first of these pillars has to do with the city's Charter of 1802! and whether
Pennsylvania Avenue between | Sth Street and ! 7th Street, N.W., along with the other
presently “restricted” streets, existed or were planned in 1802 and were therefore
automatically covered by the Charter. The original planned public streets and alleys’
of the city of Washington were cited in the Congressionally granted charter of 1802
as being under the jurisdiction--as distinguished from ownership--of the local
government. While the Charter was amended subsequently, and additional street and
alley closing legislation was enacted, this fundamental jurisdiction was never
changed.

The second pillar has to do with evidence of the existence of these streets and
their maintenance by the District, or of changed jurisdiction under applicable law.

While there is some uncertainty about the planning of Pennsylvania Avenue before

'Section 7 of the charter, “An Act to Incorporate the Inhabitants of the City of
Washington, in the District of Columbia", afforded this jurisdiction: "The Corporation shall have
the full power and authority to pass all by-laws and ordinances to keep in repair all necessary
streets, avenues, drains and sewers, and to pass regulations necessary for the preservation of the
same, agreeably to the plan of the said city."


105

& U.S. Department of Justice

alll Office of Legal Counsel

Office of the Wastangion DC 20830
Deputy Atsistns Anomey General

May 12. 1995

MEMORANDUM FOR EDWARD S. KNIGHT
GENERAL COUNSEL
DEPARTMENT OF THE TREASURY

From: Richard Shiffrin \Y?
Teresa Wynn Roseborough
Deputy Assistant Attorneys General

Re: The Secretary of the Treasury's Authority to Order the Closing of Certain Streets
Located Along the Perimeter of the White House Under 18 U.S.C. § 3056

This is in response to your request for a legal opinion from the Office of Legal
Counsel ("OLC") on whether the Secretary of the Treasury ("Secretary") has the authority to
order the closing to vehicular traffic of (1) Pennsylvania Avenue between 17th Street and
Madison Avenue, (2) State Place, (3) and the segment of South Executive Avenue that
connects into State Place in furtherance of his responsibility to protect the President under 18
U.S.C. § 3056. Based on a review of section 3056 and related statutes, their legislative
histories, and relevant court and OLC opinions. we conclude that section 3036 grants the
Secretary broad authority to take actions that are necessary and proper to protect the
President. In ight of the recommendations of the White House Security Review and the
United States Secret Service's unique expertise and special responsibility in this matter, we
agree with your conclusion that section 3056 authorizes the actions contemplated by the
Secretary

I. Background

The White House Security Review. which was recently established by former
Treasury Secretary Bentsen to examine White House security issues, has determined that
“there is no alternative to prohibiting vehicular traffic on Pennsylvania Avenue that would
ensure the safety of the President and others in the White House complex from explosive
devices carried by vehicles near its boundaries.” Request for Legal Opinion from Edward S
Knight, General Counsel, U.S. Department of Treasury, to Walter E, Dellinger, Il.
Assistant Atlorney General, Office of Legal Counsel, U.S. Department of Justice 1 (May 10.
1995). You have informed this Office that in light of the Secretary's responsibilities to
protect the President under section 3056. he is considering ordering ‘the closing to vehicular


34

Government determines to close one street in our city. But that’s
the impact on us.

They were all well-meaning actions that the Federal Government
took with those pensions and with all of those things. They were
all well-meaning, but they wind up costing an awful lot of money,
and we wind up having to pay for it.

Mr. McHucu. Well, Mr. Clarke, I can certainly understand your
concerns. It’s not my place to speak for the chairman of this sub-
committee. But I do think it’s fair to say, in the 6 months-plus that
I have been a member of this subcommittee in the 104th Congress,
I think the chairman of the full committee and Chairman Davis of
the subcommittee, Ms. Norton, and others have worked very hard
to try to come to grips with many of the issues and problems that
you have very rightly stated here today.

As to the question of the matching funds, that is an issue that
is being discussed within Congress. The question is one of process.
Did that administrator have the right, in and of himself, to make
that waiver? That judgment has not been made. I will say that, to
my knowledge, both Mr. Davis and Ms. Norton are working on that
issue, as well.

But that is the reason we are here today, to begin to try to assess
the impact of this action on the District and on its residents and
what we might do to be helpful.

With that, I would be honored to yield to Delegate Norton for any
questions she might have.

Ms. Norton. I know you have to go to vote, Mr. Chairman, I
think probably we should let that happen. I wish I could accom-
pany you.

Thank you very much. The majority is trusting the minority to
continue at the moment. I want to make sure that no vote is
missed.

First, let me just say that Mr. Clarke’s concern could not be bet-
ter placed. We have had considerable help from the Congress on
revenue matters, but this one was especially important to us. We
are getting tremendous help from the administration. We've gotten
some help from the Speaker. We’ve gotten help from Mr. Davis.
And we thought everybody was on board.

My good friend, Mr. Shuster, who has also been good to the Dis-
trict in his day, objected to the waiver. The reason had to do, he
said, with the fact that he himself had voted against a waiver for
Pennsylvania at some point in the past. Apparently, Pennsylvania
was later able to work out a compromise that got it its funds, how-
ever.

So we are continuing to work. Tom Davis and I are working very
hard, because this money will, for all intents and purposes, be lost
to us. I mean, there’s a way you could get it, but, in effect, you
couldn't.

This is a union of States and the capital city. The notion that we
could be in our financial need and have to give up $82 million for
streets that are more used by tourists and commuters than they
are by us is an irrational result. And you are right; we had thought
this was all going very well.

I will say this, Mr. Shuster—I am on the committee, the full
committee—Mr. Shuster has said to me, “My mind is not closed,”


115

of government action that Congress contemplated in defining a “rule” for purposes of the
APA.

Moreover, even if the Secretary's contemplated action did constitute a “rule” under
the APA, the APA provides an exception to its requirements for “{any} matter reiating to
agency management or personnel or to public property. loans, grants, benefits, or contracts.”
5 U.S.C. § 553(a)(2) (emphasis added). The “public propery” exception has been
interpreted to exempt from APA coverage rules issued by any agency with respect to real or
personal property owned by the United States or by any agency of the United States.
including rules relating to the sale or management of such property. Story v. Marsh, 732
F.2d 1375, 1384 (8th Cir. 1984), Wilderness Public Right dy. Ki , 608 F.2d 1250.
1253 (9th Cir. 1979), cert, denied, 446 U.S. 982 (1980); City of Santa y. Andrus.
572 F.2d 660, 673-74 (9th Cir.), cert. denied, 439 U.S. 859 (1978). See also
United States Dept. of Justice, Anomey General's Manual on the Administrative Procedure
Act 27 (1947). Accordingly, if the streets sought to be closed to vehicular traffic are owned
by the federal government, we believe that any action taken to close those streets would be
exempt from the APA under section 553¢a)(2).

3. National Historic Preservation Act

We do not believe that the National Historic Preservation Act ("NHPA“), 16 U.S.C
8§ 470-470w-6, and the regulations promulgated pursuant to it, 36 C.F.R. §§ 800.1-800.15,
prohibit the Secretary from taking prompt action with respect to closing to vehicular traffic
the contemplated streets. Section 106 of the NHPA provides that “prior to the approval of
the expenditure of any Federal funds” on an “undertaking,” the head of a federal agency
must "lake into account the effect of the undertaking on any district, site, building, structure.
or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. §
470f. It further provides that the agency head shall afford the Advisory Council on Historic
Preservation ("Council") a “reasonable opportunity” to comment on the effect that such
undertaking will have on a historic site. Id, Although consultation with the Council must be
had “prior to approval of the undertaking.” 36 C.F.R. § 800.1(a), the agency head is not
bound by the Council's comments or recommendations. See 36 C.F.R. § 800.6.

The vast majority of the areas that the Secretary contemplates closing, including
Pennsylvania Avenue between 17th Street and Madison Avenue. and State Place, appear to
be part of the “Lafayette Square Historic District.” which is included in the National Register

* Even if a court were to find that the Secretary's action constituted a rule under 5 U S.C. § $51(4). the
Secretary could invoke the “good cause” exception provided under 5 U.S.C. § 553(b\B). Under that section.
the requirements of notice and opportunity for comment do not apply when the agency for good cause finds that
the procedures are “impracticable. unnecessary. or contrary (0 the public interest.” Id, We believe that in the
instant case the Secrelary's basis for invoking the good cause exemption would be upheld, as there is a clear
public interest in providing the President thorough and prompt protection when necessary to meet security
requirements,

“ie


136

Mr. Davis. If there is no further business to come before the sub-
committee at this time, these proceedings are closed.

[Whereupon, at 3:05 p.m., the subcommittee was adjourned, sub-
ject to the call of the Chair.]

ce)


58

MR. CHAIRMAN, MEMBERS OF THE SUBCOMMITTEE, MY NAME IS
MILLARD SEAY, AND | AM THE DIRECTOR OF PLANNING FOR THE
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY. THANK
YOU FOR PROVIDING ME THE OPPORTUNITY TO SPEAK ABOUT THE
IMPACT OF THE CLOSING OF PENNSYLVANIA AVENUE ON
METROBUS SERVICE.

THE CLOSING OF PENNSYLVANIA AVENUE BETWEEN 15TH STREET
N.W. AND 17TH STREET N.W. ON MAY 20, 1995 REQUIRED THE
REROUTING OF TEN DIFFERENT METROBUS ROUTES. SCHEDULED
SERVICE ON THESE TEN ROUTES CONSIST OF 500 WEEKDAY TRIPS,
300 SATURDAY TRIPS, AND 225 SUNDAY TRIPS. APPROXIMATELY
70,000 WEEKLY RIDERS USE THE SERVICE IN THE AREA AFFECTED
BY THE CLOSURE OF PENNSYLVANIA AVENUE. AS A RESULT, OVER
150,000 ANNUAL BUS TRIPS AND 3.5 MILLION ANNUAL
PASSENGER TRIPS WILL BE AFFECTED BY THE REROUTING
REQUIRED BY THE CLOSING OF PENNSYLVANIA AVENUE.

THE TEN AFFECTED ROUTES WERE CHANGED ON MAY 20, 1995 TO
OPERATE VIA H STREET N.W. IN PLACE OF THEIR PREVIOUS
ROUTING ON PENNSYLVANIA AVENUE. THE ROUTING VIA H STREET
IS SLIGHTLY LONGER THAN THE PREVIOUS ROUTING VIA
PENNSYLVANIA AVENUE AND BUSES ARE REQUIRED TO MAKE
ADDITIONAL TURNING MOVEMENTS IN ORDER TO TRAVEL
THROUGH THE AFFECTED AREA. THE IMPACT OF THIS NEW

2


112

1. District of Columbia Street Closing Authority

The District of Columbia government has exercised the power to close streets and
transfer title within the District of Columbia since 1932, when Congress. pursuant 10 its
plenary powers over the District of Columbia,® granted it such authority. See Techworld
Dev_Corp. v. D.C. Preservation League, 648 F. Supp. 106, 111 (1986), citing S. Rep. No
688, 72d Cong., Ist Sess. 3 (1932). When Congress passed the District of Columbia Self-
Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat, 774 (1973)
(codified at D.C, Code Ann. §§ 1-211 -- 1-299) ("Home Rule Act"). it delegated to the
present District of Columbia government all powers that had been granted to the previous
yovernment. see D.C Code Ann. § 1-227(a), including the power to close streets

D.C. Code §§ 7-421 -- 7-428 authorize the District of Columbia City Council
(Council") to close streets within the District of Columbia. The street closing process
established by the Council requires referral of street closing applications to the National
Capital Planning Commission for review and recommendation, to the Advisory
Neighborhood Commissions affected. and to abutting property owners. See D.C. Code Ann
at § 7-422

We do not believe D.C. Code §§ 7-421 -- 7-428 or the Home Rule Act prevent the
Secretary from closing the streets at issue. First. in passing the Home Rule Act, Congress
provided that the Council shal! have no authority to "[e]nact any act. or enact any act to
amend or repeal any Act of Congress, which concems the functions or property of the
United States or which is not restricted in its application exclusively in or to the District.”
Id. at § 1-233(a)(3). Rejecting the United States" assertion that the Council's act of closing a
povernment-owned street in Northwest Washington violated this provision. the court in
Techworld stated:

[T]he limitation of § 1-233 is included to ensure that the local government does
not encroach on matters of national concer. {t withholds authority over property
used by the United States in connection with federal goveramental functions, and
over property of national significance. The Council may not concer itself with
the Lincoln Memorial. or the White House, or with the United States Courthouse.
The closing of a small street in Northwest Washington, however, is precisely the
sort of local matter Congress wishes the D.C. Council to manage

Techworld, o48 F. Supp. at 115. See also District of Columbia v Greater Washington
Cent, Labor Council, AFL-CIO, 442 A.2d 110. 116 (D.C. 1982), cen. denied, 460 U.S
1016 (1983) (quoting legislative history of the Home Rule Act: "The functions reserved to
the federal tevel would be those related to federal operations in the District, and to property
held and used by the Federal Government for conduct of its administrative, judicial. and

* See US Const at 148 ct 47


76

me to come up with something that improves upon Lafayette Park
and to tear up Pennsylvania Avenue. So I'm not sure that people
are going to get that.

Ms. JEFFERS. As I said, it was just a bone that was thrown out
as one possible positive. The overwhelming response was: this is
not welcome; it has created two cities; it’s a major disconnect. And
that was just a stretch for what positive anything that could hap-
pen, and it would benefit very few.

Ms. Norton. It’s the kind of stretch that indicates that there
may not be a lot of benefit. But I think it’s only fair to ask, do you
see any benefits that either are coming or could come from the clos-
ing of a main artery and its conversion into a pedestrian mall?

wos, any of you see any benefit that could come or is coming from
that?

{No response.]
bh Ms. Norton. I hear silence. I know the sound of silence when I

ear it.

I am a registered environmentalist and like the idea of malls. If
you consider this mall, it has the exact opposite effect from what
pedestrian malls are supposed to do, because it creates huge
amounts of extra pollution on other streets, while removing, obvi-
ously, some pollution from a very wide street. So any environ-
mental benefit that might otherwise obtain, I think is simply not
here now.

I want to thank you all for testimony that I have found person-
ally very useful.

Mr. Chairman, thank you very much.

Mr. Davis. Thank you very much.

Let me thank this panel. I think we have gotten some revealing
testimony and some good ideas as we move forward. We look for-
ward to a continued dialog. Thank you very much.

I would like to call our final witness, Mr. Robert Gresham, who
is the deputy executive director of the National Capital Planning
Commission. Mr. Gresham will be testifying in lieu of the executive
director, Reginald Griffith.

Mr. Gresham, if you could stand up. As you have heard, it’s the
policy of the committee to swear in witnesses. If you would rise
with me and raise your right hand.

(Witness sworn.]

Mr. Davis. Let me add that any written statement will be made
a part of our record. Please proceed with your oral statement. If
you can keep it within 5 minutes, it would be appreciated.

STATEMENT OF ROBERT GRESHAM, DEPUTY EXECUTIVE
DIRECTOR, NATIONAL CAPITAL PLANNING COMMISSION

Mr. GRESHAM. Yes, sir, Mr. Chairman. Since you do have my
written statement, if it’s OK, I will just summarize by hitting a few
highlights of that.

Just for the record, again, my name is Robert Gresham, deputy
executive director of the National Planning Commission, filling in
for our executive director, Mr. Griffith, who is out of town. We ap-
preciate the opportunity to present an explanation of the statutory
procedures for closing streets in the District and the role of our
commission in that process.


28

establishment while at the same time dealing with the day to day issues of traffic
management, full use of our streets and our sidewalks by our citizens, visitors--some
18 million of whom come to this Capitol City each year, our businesses, and the
integrity of the city's grand plans. | would hope that we can discourage a growing
movement on the part of the federal government to close the city's streets and to
barricade the sidewalks adjacent to federal buildings.

You will find the Committee's conclusions on page nine of the report, and the
Committee's proposed resolution as the first attachment. Thank you for allowing me

to present my views.


Date May 18, 1995
TREASURY ORDER 179.99

BY ORDEK OF THE
SECRETARY OF THE TREASURY

Sunset Review

SUBJECT: Direction to the Director. United States Secret Servive, to Chose Streets
Necessary 0 Make the White House Perimeter Secure

As Secretary of the Treasury. 1 am authorized to direct the Secret Service fo take any and all
appropriate action to protect the President of the United Staves and other provectees as descriped in 18
US.C. 3056ta}. In furtherance af these responsibifities, Secretary Bentsen commenced a review of
the security arrangements at the White House (the Review). The Review is not able to identify any
alternative to prohibiting vehicular traffic on Pennsylvania Avenue that would ensure the protection of
the President and others in the White House Complex from explosive devices carried by vehicles nesr
the perimeter

Therefore, I have determined hased upon the Review's work and conclusions that it is necessary te
make secure the perimeter of the White House

By virtue of the authority vested in me as Secretary of the Treasury. including, but not Limited 10, the
authority vested hy BU S.C. 321, 18 US.C 2056 and 3 U.S.C. 202. itis ordered that

! The Director, United States Secret Service. is directed to close to vehicular traffic the
following streets in order to secure the perimeter of the White House* (i) the segment of Pennsylvania
Avenue, Northwest. in front of the White House between Madison Place, Northwest. and 17th Strect,
Northwest. and (ii) State Place. Northwest. and the segment of South Executive Avenue, Northwest,
that connects inty State Place, Northwest (see attached map)

2 Thereby delegate to the Director. United States Secret Service, all necessary authority (0 carry
‘out such street closings

3 ‘This Order shall take effect immediarely

4
Rihert E. Rubin
Secretary of the Tressury

OPE Under Secretary foe Fatorcement


1) PARKING WAS RESTRICTED ON CERTAIN STREETS
SURROUNDING THE CLOSURE, INCLUDING H STREET,
I STREET, 15TH STREET, AND 17TH STREET.
NUMEROUS INTERSECTIONS WERE IDENTIFIED WHICH
WOULD REQUIRE SPECIAL MANAGEMENT AS A-
RESULT OF THE CLOSURE, AND MPD TOOK CONTROL
OF THESE INTERSECTIONS TO ASSIST IN TRAFFIC

MANAGEMENT;

2) IN RESPONSE TO CONCERNS EXPRESSED BY THE
DISTRICT AND THE WASHINGTON METROPOLITAN
TRANSPORTATION AUTHORITY (WMATA), MADISON
PLACE, N.W. FROM H STREET TO PENNSYLVANIA
AVENUE REMAINED OPEN, IN THE SOUTHBOUND
DIRECTION, FOR METRO BUSES ONLY.
PENNSYLVANIA AVENUE, FROM MADISON PLACE TO
15TH STREET, WAS SIMILARLY OPEN, IN THE EAST
BOUND DIRECTION, FOR METRO BUSES ONLY.


7

As noted by a number of witnesses in the first panel early this
afternoon, Congress has delegated to the District of Columbia gov-
ernment the authority to close streets within the District. Under
D.C. law, before the council may consider a street closing, the
Mayor must, among a number of other things, refer the application
to the Planning Commission for its recommendations.

As several other witnesses have already noted, a statutory street
closing refers to an action which transfers title to the property
under the right-of-way from the public domain into public or pri-
vate ownership, to be used for other than access purposes for pe-
destrians and/or vehicles. In such instances, the determination of
the ultimate ownership of the former right-of-way rests with the
D.C. Council.

If the procedures outlined above do not occur, there is no street
closing in the statutory sense. As others have already pointed out
this afternoon, under this definition, the relevant streets in the vi-
cinity of the White House, as of this date, have not been closed.
They have been restricted to vehicular traffic.

The task of preparing both an interim and long-term design for
Pennsylvania Avenue has been given, by the White House, by the
chief of staff, to the Secretary of the Interior. Our commission is
1 of 12 agencies that are involved in the ultimate design for this
area.

In that connection, the National Capital Planning Act requires
that all Federal and District agencies consult with the Planning
Commission prior to and at all stages during the development of
plans for proposed developments in the District of Columbia.

Therefore, whether or not the Avenue is closed according to stat-
ute, if the area encompassing Pennsylvania Avenue between 15th
and 17th, as well as the other streets that have been referred to
in the vicinity of the White House, if this area is redesigned, such
development would require formal consultation with this commis-
sion, as provided in the Planning Act.

That concludes my testimony, Mr. Chairman. I will be happy to
try to answer any questions of the subcommittee.

[The prepared statement of Mr. Gresham follows:]


83

felt an improvement proposal for that section of Pennsylvania Ave-
nue did have the potential for improving it.

So strictly speaking for myself, as a planner, not representing in
any way that larger view of the commission, I think there is poten-
tial, from a design and open space continuity standpoint, for some
improvement in that area.

Ms. Norton. Would you elaborate on what kind of improvement
you have in mind when you say that?

Mr. GRESHAM. Well, I was really speaking just with respect to
the question of potential. My own sense is that the condition that
has already been created has, to some extent, really facilitated the
interaction of pedestrian movement in that area, between the side-
walk in front of the White House—

Ms. Norton. Why would anybody need anything else? It’s a wide
avenue that you can interact with everybody out there. Why would
anybody consider tearing up Pennsylvania Avenue or futzing
around with Lafayette Park, on the theory that a further improve-
ment could be made?

Mr. GRESHAM. Well, I think that that’s—I think you would find
designers and planners who would——

Ms. Norton. Love to get ahold of it.

Mr. GRESHAM [continuing]. Who would feel that there is a great
opportunity. I think you would probably find preservationists and
other planners and designers who would feel that the cartway, be-
cause it does represent some historic value, should be retained.

And there is also, to my understanding, a school of thought that
some design and landscape improvements could probably be
achieved that would perhaps represent the best of both of those ap-
proaches, by still retaining some semblance of the cartway, but also
making the area more pedestrian-friendly than it was when it was
strictly a street cartway.

But, again, please——

Ms. NorTONn. I understand.

Mr. GRESHAM. Please understand, these are really-—

Ms. Norton. I understand the position you're being put in. I tell
you, it’s awfully pedestrian-friendly now, because a pedestrian
doesn’t encounter anything but a wide open space.

The commission is known for being a guardian of the history,
and particularly the architectural and landscape history, of Wash-
ington, especially when D.C. wants to do something. And I cer-
tainly hope it won't lose its mind because who happens to be in-
volved now is the White House or a Federal entity.

We intend to hold the commission to the self-same standard. And
I intend—I can tell you here, right now, that any changes that are
going to go on are going to have to come through the Congress and
are not going to come out of the commission or anybody else. It’s
going to have to be authorized. I have assurances that—and you
can carry this back to the commission—that actions such as na-
tional contests to see who can do what best are inappropriate until
this matter is thoroughly understood and its effects are thoroughly
elt.

We believe that this area deserves the same kind of protection
that the commission has believed should obtain in other cir-
cumstances. The notion of a rush to change, by those who will have


5

portions of Pennsylvania Avenue and E Street. However, these ini-
tial contacts were in the form of consultations. The District initially
advised against the closures. However, after the Oklahoma City
bombing, we were informed that the closures would occur.

When it became clear that the closures were to be made, DPW
and MPD took the following immediate steps: First, parking was
restricted on certain streets surrounding the closure, including H
Street, I Street, 15th Street, and 17th Street. Numerous intersec-
tions were identified which would require special management as
a result of the closure, and MPD took control of these intersections
to assist in traffic management.

Second, in response to concerns expressed by the District and the
Washington Metropolitan Transportation Authority, Madison Place,
Northwest, from H to Pennsylvania Avenue remained open in the
southbound direction, for Metro buses only. Pennsylvania Avenue,
from Madison Place to 15th Street, was similarly open in the east-
bound direction, for Metro buses only.

Third, a long-term traffic management plan was devised which
has been implemented as of this week. Beginning Monday, June
26, 1995, the following changes were made: Designation of H
Street, Northwest, from New York Avenue to Pennsylvania Avenue
as one-way eastbound. The street was previously, of course, two-
way. Designation of I Street, Northwest, from New York Avenue to
Pennsylvania Avenue, as one-way westbound. The street was pre-
viously one-way eastbound. Designation of 15th Street, Northwest,
from New York Avenue to K Street, as one-way northbound. The
street was previously two-way.

Mr. Chairman and members, as you know, the District has in-
curred substantial cost as a result of the closings. For example, the
cost incurred by the Department of Public Works for conversion of
the streets in the vicinity of the closure has been budgeted at ap-
proximately $165,000. A special account has been established by
the Federal Highway Administration to fully fund this effort.

With regard to the Metropolitan Police Department, officers have
been operating traffic posts around the White House since May 22.
These duties are being performed by off-duty police officers, who
are working from 6:30 a.m. to 8:30 p.m. during weekdays. The de-
tail is composed of a maximum of 23 traffic posts, 3 traffic enforce-
ment scooter officers, three sergeants for supervision, and 1 lieu-
tenant to direct the operation. However, since this is a voluntary
detail, not all posts are always filled.

According to an agreement between MPD and the Department of
the Treasury, the department will be reimbursed at a rate of
$33.29 per hour. We have the listing of the number of officers and
the hours and the reimbursements and the dates. For these dates,
the costs total about $134,000. With the new traffic patterns, the
number of traffic posts has dropped to 18, and MPD anticipates
that the detail will be necessary through July 14.

With regard to parking meter revenue, we estimate that, to date,
about $62,000 has been lost as a result of the initial actions taken
following the closures. It should be noted, that after a few days,
most of the parking restrictions were relaxed, and the loss of reve-
nue decreased greatly.


lll

justifies the inference that an individual constitutes a potential nsk to the physical security of
the President or his family.” Id.

Courts have allowed the Secret Service even more latitude outside of the first
amendment context. In Scherer v. Brennan, 379 F.2d 609 (7th Cir.). cert. denied. 389 U.S
1021 (1967), the court found within the scope of the Secret Service's duties to protect the
President the barring of a federally-licensed firearms dealer from his own home and his
constant surveillance even though he had voiced no direct threat to the President. The
appellant argued that this invasion of privacy was illegal under the Supreme Court's analysis
in Camara v. San Francisco, 387 U.S. 523 (1967) (holding that the fourth amendment
requires a warrant for inspection of private premises by health inspectors unless the occupant
consents thereto). In rejecting appellant's argument, the court stated. "Here, the need to
protect the President of the United States from possible physical harm would justify measures
that might not be considered appropriate in routine health inspections.” Scherer, 379 F.2d at
612

2. Section 202

In addition to the broad authority to protect the President granted in section 3056, 3
U S.C. § 202 grants the “United States Secret Service Uniformed Division” authority to
perform duties prescribed by the Secretary to protect the “White House in the District of
Columbia” and “any building in which Presidential offices are located.” This provision
makes clear that the Secretary has authority to direct not only such action as is necessary to
protect the person of the President but also the White House itself and the Old Executive
Office Building, which is also bounded by the designated streets

‘The language and legislative history of sections 3056 and 1752. the authority granted
in section 202. the court decisions. and former opinions of this Office suggest that while the
Secretary's authority to protect the President may not be unlimited, the Secretary may take
such actions as are consistent with the Constitution, not prohibited by statute, and reasonable
under the circumstances for the protection of the President in the performance af his duties
We perceive no constitutional impediment to the closing of the designated streets
Consequently, given the conclusions of the White House Security Review with respect to the
vulnerability of the White House. the Secretary would appear to have the authority to expand
the security perimeter of the White House by closing the designated streets if the Secretary
concludes that such action is reasanably necessary (0 protect the President. We now tum to
consideration of whether any other statutes prohibit or limit such action

B. Other Relevant Statutes
Other congressional grants of authority that could arguably apply (o the streets at

issue do not diminish the Secretary's authority to close them to vehicular traffic. We will
discuss each such congressional grant of authority in turn


81

Mr. Davis. Thank you very much.

Let me ask a question: From your perspective, if the Secret Serv-
ice has the authority to restrict access to Pennsylvania Avenue, do
they have the authority to keep those restrictions in place as long
as necessary?

Mr, GRESHAM. Mr. Chairman, I’m not a legal authority, but I be-
lieve it is our sense, from our understanding of authorities that
have been cited by the Department of the Treasury and concurred
in by the Department of Justice, that they believe that is the case.
But I think it would probably be best to confirm that with those
agencies.

Mr. Davis. I think that squares with what you are saying. I ap-
preciate your caveat. Let me ask you this: If the street is to be le-
gally and permanently closed, and something else is done with the
land, do you think the Treasury would have to follow the statutory
procedures that exist?

Mr. GRESHAM. I really believe, at least based on other precedents
that we have seen——

Mr. Davis. Don’t worry. | mean, you are under oath, but I am
not holding to any legal requirement that you have the I's dotted
and T’s crossed and precedents in place. I’m just asking for a gut
reaction.

Mr. GRESHAM. Yes, sir. Well, based on my experience from sev-
eral years with the commission, we have actually seen improve-
ments take place in street rights-of-way, or former street rights-of-
way, as the case may be, under both circumstances, either in cases
where there have been statutory street closings, and in some cases
where there have not been statutory street closings, but where the
streets have been closed to vehicular traffic and permanent pedes-
trian improvements have been installed within those rights-of-way.

Mr. Davis. Do you know of any precedent for what has happened
in this case, any other precedents where streets have been closed
in this—I shouldn't say “closed,” have vehicular access denied simi-
lar to this?

Mr. GRESHAM. Yes, sir. In fact, there are some cases where the
restriction has taken place, and subsequent to that improvements
have actually been put in place. The examples that come most
quickly to mind involve one in the vicinity of the White House,
East Executive Drive, between the White House—the north-south
street between the White House and the Department of Treasury
building was restricted to vehicular traffic back, I believe in 1983.

That action was followed up by the preparation of a design land-
scape development plan that was then reviewed through the public
agencies process and, of course, was implemented, and is now in
place.

Mr. Davis. I actually worked at the White House in 1970 and
1971, and I remember when it was open, when you could be
dropped off there, and you could walk through. The tour started
back there.

Mr. GRESHAM. That, I understand, was done without a closing.

A few examples in the more traditional, the older downtown part
of Washington, a one-block section of G Street, in front of the Mar-
tin Luther King Library, two blocks of F Street, in front of the old
Patent Office building, which is now the National Portrait Gallery,


107

functions,’ and to “perform such other functions and duties as are authorized by law." 18
US.C. § 3056(c)(1)(F). Aside from expressly granting certain powers generally afforded
federal law enforcement personnel, the statute does not attempt to enumerate the specific
actions the Secret Service may take in fulfilling its responsibility 10 protect the President.

The legislative history of section 3056 also does not include any enumeration of the
specific actions the Secretary may take to protect the President. Although the Secret Service
has routinely protected the President since the assassination of President McKinley in 1901,
see S. Rep. No. 467, 82d Cong., Ist Sess. 2-3 (1951), Congress did not provide explicit
formal authority for this role until 1951. See Pub. L. No, 82-79. 65 Stat. 121, 122 (1951).
Neither the congressional report language nor the floor debates concerning the authorizing
legislation elaborate upon the activities and functions Secret Service officials may undertake
in protecting the President. Moreover. subsequent amendments to section 3056 pertaining to
the Secret Service's protection duties merely expanded the group of officials over which the
Secret Service has protective responsibilities. without delineating how the protection is to be
accomplished.

Although both the language of section 3056 and its legislative history are silent as to
specific protective acts. the language and legislative history of 18 U.S.C. § 1752. which
authorizes the Secretary to designate and regulate temporary residences of the President,
provide some insight into the scope of the Secret Services’ authority under section 3056 with
respect to the environs of the White House. Section 1752 was apparently intended to provide
the Secret Service with authonty to provide the same degree of protection for the President
outside the vicinity of the White House as Congress believed the Secret Service could
exercise, under section 3056, within the vicinity of the White House. Section 1752 grants
the Secretary the authority 10 "designate by regulations the buildings and grounds which
constitute the temporary residences of the President.” 18 U.S.C. § 1752(4)(1). Et also
allows the Secretary “to prescribe regulations governing ingress or egress to cuch buildings

Such functions include the ability to

(A) execute warrants issued under the laws of the United States
(B) carry firearms.

(C) make arrests without warrant for any offense against the United States committed in their
presence, or for any felony cognizable under the laws of the United States if they have
reasonable grounds (o believe that the person to be arrested has committed or 15 committing
such felony

(D) offer and pay rewards for services and information leading to the apprehension of persons
involved in the violation of potential violation of those provisions of law which the Secret
Service is authorized to enforce:

(E) pay expenses for unforeseen emergencies of a confidential nature under the direction of the
Secretary of the Treasury and accounted for solely on the Secretary's certificate

1B US.C. § 3056(cH1)


o

92

‘The Department of the ‘Treasury would not object to either consultant's participation in
a Congressional heanng respecting the closing of Pennsvlvania Avenue or State Place t
vehicular traffic

was taken,

The following individuals have been consulted on chis matter prior 49 and since the time
action was taken:

‘House of Representanves

Speaker Gingrich

Congressman Gephardt
Congressman Lightfoot
Congressman Hoyer
Congressman Clinger
Congresswoman Holmes Norton
Congressman Davis
Congressman Herr
Congressinan Gutknecht

Senate

Senator Dole
Senator Lott
Senator Daschle
Senator Shelby
Senator Kerrey
Senator Specter
Senator Moynihan


60

STREET BY METROBUS SERVICE.

TO ACCOMMODATE THIS NEW STREET PATTERN, THE TEN
METROBUS ROUTES THAT WERE INITIALLY REROUTED TO H STREET
ON MAY 20, 1995 HAVE BEEN CHANGED TO OPERATE VIA H AND |
STREETS. IN ADDITION TO THESE 10 ROUTES, 15 OTHER
METROBUS ROUTES THAT HAD BEEN OPERATING ON H STREET
PRIOR TO THE CLOSING OF PENNSYLVANIA AVENUE WERE ALSO
REROUTED TO UTILIZE THE NEW ONE WAY STREET PATTERN. THE
NEW STREET CHANGES ARE EXPECTED TO REDUCE TRAFFIC
CONGESTION AND ELIMINATE THE INCREASE IN TRAVEL TIME THAT
HAS BEEN EXPERIENCED BY METROBUS SERVICE SINCE THE
CLOSURE OF PENNSYLVANIA AVENUE.

GIVEN THE EXPECTED BENEFICIAL IMPACT OF THE NEW STREET
PATTERN ON THE CURRENT TRAFFIC CONGESTION BEING
EXPERIENCED IN THE AREA AND THE CONTINUED AVAILABILITY OF
THE USE OF MADISON PLACE BY METROBUSES, WE ARE HOPEFUL
THAT THE NEW STREET PATTERN WILL ELIMINATE THE ADDITIONAL
TRAVEL TIME THAT HAS BEEN EXPERIENCED BY METROBUSES
SINCE THE CLOSING OF PENNSYLVANIA AVENUE AND MINIMIZE
ANY POTENTIAL LOSS IN RIDERSHIP. THIS WILL HELP TO REDUCE
THE INCREASE IN OPERATING COSTS, THE POTENTIAL REDUCTION
IN PASSENGER REVENUE, AND ANY RESULTING INCREASE IN
SUBSIDY TO THE DISTRICT OF COLUMBIA.

4


56

Mr. Davis. Thank you very much.

We will turn now to Millard Seay, the director of planning for
WMATA,

Mr. Seay. Thank you, Mr. Chairman, members of the sub-
committee.

My name is Millard Seay. I am the director of planning for the
Washington Metropolitan Area Transit Authority. Thank you for
providing me the opportunity to speak about the impact of the clos-
ing of Pennsylvania Avenue on Metrobus service.

The closing of Pennsylvania Avenue on May 20 required the re-
routing of 10 different Metrobus routes. Scheduled service on these
10 routes consists of 500 weekday trips, 300 Saturday trips, and
225 Sunday trips. Approximately 70,000 weekly riders use the
service in the area affected by the closure of Pennsylvania Avenue.
As a result, over 150,000 annual bus trips and 3.5 million annual
passenger trips will be affected by the rerouting required by the
closing of Pennsylvania Avenue.

The 10 affected routes were changed on May 20 to operate via
H Street in place of their previous routing on Pennsylvania Ave-
nue. The routing via H Street is slightly longer than the previous
routing via Pennsylvania Avenue, and buses were required to make
additional turning movements in order to travel through the af-
fected area.

The impact of this new routing, in combination with the increase
in traffic congestion experienced on H Street, has resulted in in-
creased travel time for buses on the 10 adjusted routes. Since the
rerouting of the service on May 20, many of the Metrobus trips op-
erating through the affected area have experienced delays and in-
creased travel times of 5 to 15 minutes during certain parts of the

jay.

Most of the increase in travel times has been experienced on
weekdays between 8 a.m. and 8 p.m. This increase in travel time
has disrupted scheduled service and had an adverse impact on
service reliability.

In response to the traffic congestion problems that have been ex-
perienced in this area since the closing of Pennsylvania Avenue,
the District of Columbia implemented a new one-way street pattern
on June 25. To accommodate this new street pattern, 10 Metrobus
routes that were initially rerouted to H Street, on May 20, have
now been changed to operate via H and I Streets.

In addition to these 10 routes, 15 additional Metrobus routes
that had been operating on H Street prior to the closing of Penn-
sylvania Avenue were also rerouted to utilize the new one-way
street pattern. These new street changes are expected to reduce the
traffic congestion and eliminate the increase in travel time that has
been experienced by Metrobus service since the closure of Penn-
sylvania Avenue.

Based on the beneficial impact that this new street pattern is ex-
pected to have on current traffic congestion in the area, and the
continued availability of Madison Place for use by Metro buses, we
are hopeful that these changes will eliminate the additional travel
time that has been experienced by Metrobus service since the clos-
ing of Pennsylvania Avenue. This will help minimize the increase


18

presently restricted streets, existed or were planned in 1802, and
were therefore automatically covered by the charter.

The original planned public streets and alleys of the city of
Washington were cited in a congressionally granted charter of 1802
as being under the jurisdiction, as distinguished from the owner-
ship, of the local government. While the charter was amended sub-
sequently and additional street and alley closing legislation was en-
acted, this fundamental jurisdiction was never changed.

The second pillar has to do with evidence of the existence of
these streets and their maintenance by the District or of changed
jurisdiction under applicable law. While there is some uncertainty
about the planning of Pennsylvania Avenue before 1820, there is
evidence of its existence and its maintenance by the local govern-
ment from the early 1820’s. You can see, attached to my testimony,
testimony from Mr. Hawkins.

In this century, the Street Readjustment Act of 1932 was enacted
by Congress to provide a way to formalize the transfer of streets
not already covered by the 1802 act. Finally, the Street and Alley
Closing and Acquisition Procedures Act of 1982 was enacted by the
District of Columbia Council, which is currently the law with which
we deal now.

These early actions and subsequent legislative acts all give the
District of Columbia the jurisdictional authority over these streets
and alleys not otherwise retained by the Federal Government or
which are under completely private ownership, without easements
for the District government’s use.

The second issue has to do with properly characterizing the
Treasury Department’s action. It is our view that the Treasury De-
partment has the authority to effect certain temporary traffic re-
strictions under a provision cited in its Treasury Order 170-09, but
that permanent, complete street closings remain, at least under
current law, within the purview of the District government.

The Council Committee on Housing and Urban Affairs decided to
characterize the Treasury’s action as “a temporary restriction of ve-
hicular access” rather than a street closing. Pedestrian access will
be allowed. Buses will turn onto the Avenue from Madison Place.
If Pennsylvania Avenue is left largely open, perhaps at least buses
will be allowed in the future.

If the streets were closed permanently and completely to both pe-
destrian and vehicular traffic, and if those streets were to qualify
as falling under the District’s jurisdiction, it is our contention that
such closings would be subject to the District Street and Alley Clos-
ing and Acquisition Procedures Act of 1982.

I see my light has come on here, so I had better start to summa-
rize.

Mr. Davis. Let me just say, your whole statement is in the
record.

Mr. SmirTH. The whole statement.

Mr. Davis. We’re reading your whole statement up here, so ques-
tions will be based on your whole statement.

Mr. SmiTH. Let me just say, in view of these conclusions about
the jurisdiction, the council is concerned, not only about the Dis-
trict’s immediate problems related to this restriction, but also
about whether there will be any brakes on the Federal Govern-


AT

Hoefer, the executive director of the D.C. Area Trucking Associa-
tion.

I have to swear everybody in. Please stand and raise your right
hands.

[Witnesses sworn.]

Mr. Davis. Thank you. You can be seated.

Any written statements that you have submitted will be made
part of the record, and I would like you to proceed for 5-minute oral
statements, commencing with Mr. Fazakerley.

I am advised we may have a vote about 10 minutes from now.
What I would like to ask is, if I could go first, and turn the gavel
over to Mr. Gutknecht. If I’m not back in 10 minutes, then you may
recess the hearing briefly. That way we will lose as little time as
possible and will be able to move ahead with testimony and a num-
ber of questions that I know we have for the panelists.

Mr. Fazakerley, please, welcome, and thank you for being here.

STATEMENTS OF GREGORY W. FAZAKERLEY, PRESIDENT, DIS-
TRICT OF COLUMBIA BUILDING INDUSTRY ASSOCIATION;
DR. HENRY L. FERNANDEZ, CHAIRMAN, ADVISORY NEIGH-
BORHOOD COMMISSION 2B; MILLARD SEAY, DIRECTOR OF
PLANNING, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY; MARGARET O. JEFFERS, ESQ., EXECUTIVE VICE
PRESIDENT, APARTMENT AND OFFICE BUILDING ASSOCIA-
TION OF METROPOLITAN WASHINGTON; AND KEN HOEFER,
EXECUTIVE DIRECTOR, WASHINGTON D.C. AREA TRUCKING
ASSOCIATION

Mr. FAZAKERLEY. Chairman Davis, members of this committee, I
am Greg Fazakerley, chairman and CEO of DRI——

Mr. Davis. I was close. I mean, Fazakerley, that was close.

Mr. FaZAKERLEY. No, that was a gold star close. I mean, that
was real close.

Mr. Davis. I apologize.

Mr. FAZAKERLEY. But I’m Greg. That’s a lot easier.

Our company is a development company here in the District of
Columbia. I’m also a resident of the city. As president of the Dis-
trict of Columbia Building Industry Association, I should like to
take a few moments to express the views of our association as they
relate to the closing of Pennsylvania Avenue.

In assembling those views, I have taken the opportunity to dis-
cuss the closing with as many people as I could doing business in
the downtown area. My comments here today, therefore, are nec-
essarily anecdotal, and I might suggest that we all think about a
lot of the testimony today as being just that, anecdotal. We're try-
ing to give our best shot. But I think these anecdotal comments do
represent opinions and observations that are quite consistent.

The closing of Pennsylvania Avenue, in short, has had a negative
impact on business in and around the immediate downtown area,
which of course is no surprise, even from the testimony you have
heard today. A major east-west traffic artery in the central busi-
ness district of this city has been blocked.

Commuting times have gotten longer, parking more difficult. And
for retailers, pedestrian traffic patterns Fave been disrupted, sales
are off, and office tenants looking to relocate are now unsure about


51

Mr. Davis. Thank you very much, Greg. I appreciate your com-
ments.

Let us move to Dr, Henry Fernandez, chairman of the Advisory
Neighborhood Commission 2B, and then to Millard Seay.

Mr. FERNANDEZ. Thank you, Mr. Chairman, and good afternoon
to all the other members of the committee.

I am Henry Fernandez, a resident of Dupont Circle, and the
chairman of the Dupont Circle Advisory Neighborhood Commission
2B. This ANC is located in ward 2, in the northwest section of the
District. The southern end of the Dupont Circle ANC roughly cov-
ers the area bounded by 15th Street on the east, Pennsylvania Ave-
nue on the south, and 20th Street on the west. The stretch of Penn-
sylvania Avenue closed off by the Secret Service is located along
the southern end of the Dupont Circle ANC.

On May 10, 1995, at the regularly scheduled meeting of the
ANC, the seven commissioners unanimously passed a motion op-
posing the closing of Pennsylvania Avenue in front of the White
House. Commissioner Jonathan Heller, who introduced the motion
before the ANC, is here today, also, with me.

In my opinion, Mr. Chairman, the closing of Pennsylvania Ave-
nue appears to be unwarranted and capricious, and has caused un-
necessary inconveniences and wasted money. Equally important,
due notice was not given to those who live and work in the District.
Before closing the Avenue, the public did not have the proper op-
portunity to comment and to provide alternative measures which
may have enhanced security around the White House.

While not being privy to the alleged security concerns, if, in the
opinion of experts, the alleged threats on the life of the President
were to be valid, I would personally support the closing of Penn-
sylvania Avenue. But why just close Pennsylvania Avenue?

Obviously, we know that these readily available explosive mate-
rials which can cause severe damage to the White House had to be
transported by a large truck. Why not simply ban trucks or deliv-
ery vans from the vicinity of the White House? Ms. Norton men-
tioned before, tour buses or Metro buses are also another possibil-
ity that could pass by.

Unfortunately, the President, other public officials, the White
House, and all other government buildings will never be completely
free from the possibility of a terrorist attack. Why did the Secret
Service choose to close the Avenue? Is the probability of a terrorist
attack on the President’s life more likely to come from the front of
the White House than from other places?

Does the Secret Service have any plans to close Hotel Washing-
ton across the street from the Treasury building, which has guest
rooms and a rooftop restaurant overlooking the private quarters of
the White House? I have eaten at the restaurant and have seen
people, through the windows, inside the President’s apartment.

Although the closing of Pennsylvania Avenue has been discussed
for months, and probably years, the quick decision to block the Av-
enue came as a surprise. There was no advance notice to the resi-
dents of the District, to commuters, and to visitors. The closing of
the Avenue forced people to seek other routes through the city,
caused traffic jams, and is wasting people’s time.


80

prior to the restrictions. The Chairman and Executive Director of this Commission were among
those briefed by the Undersecretary of the Treasury and Secret Service personnel. The task of
preparing both an interim and long-term design for Pennsylvania Avenue has been given to the
Secretary of the Interior. The Commission is one of 12 agencies that are involved in the ultimate

design for the area

The National Capital Planning Act, 40 U.S.C. §71d, requires all Federal and District Agencies to
consult with the National Capital Planning Commission prior to and at all stages during the
development of plans for proposed developments or projects in the District of Columbia. Therefore,
whether or not Pennsylvania Avenue is “closed” as provided for in D.C. Code §7-421 above, if the
ava encompassing Pennsylvania Avenue between 15th and 17th Street, as well as the environs, is
redesigned, such devetopment would require formal consultation with this Commission as provided

in the Planning Act

This concludes my formal testimony. 1 would be happy to answer any questions


185

Closure of Pennsylvania Avenue
AAA Potomac
Page 2

In this climate of concern, it’s understandable and appropriate
that officials responsible for facilities across the region
contemplate additional security restrictions. But with the
ic's acc and mobility potentially on the line, we can't hel;
it wonder: Where will this end? At what cost are 6uc!
restrictions acceptable? : .

The sober reality is that our region is home to scores of
government buildings of far higher prominence than Oklahoma City’s
Alfred P. Murrah Building. Many of them could be considered
potential targets of terrorism.

For example, the extreme agitation of soma regarding the federal
income tax ie clear; should wa sericusly consider shutting down
Constitution Avenue in front of the IRS as a protective measure?
How about vexation over U.S. policy toward Bosnia; should we
contemplate closing down 23rd Street beside the State Department as
a@ precaution? What about the FBI, which has numerous potential
enemies; do we ponder again slicing in half Pennsylvania Avenue?

Blockading the perimeters of many such facilities would inevitably
harm our mobility -- in a metropolitan area already burdened with
the second worst congestion in the nation -- and degrade our
quality of 14fe. And lest we conclude this to be a D.C.-only
problen, Virginia and Maryland suburbs are dotted with several
igh-profile soetimes-controversial facilics . 4ineluding the
of Health.

Pentagon and the National Institut:

It’s worth considering that while individual security restrictions
in isolation may not cau major traffic disruption, their
cumulative effect could paradoxically pose a significant threat to
our securit: Closing portions of a number of streets cculd
profoundly iy in-town travel, costing precious seconde that are
often crucial in saving lives and solving crimes.

Access restrictions that result in permanen: traffic delays
turn life-saving seven-minute ambulance rides into life-threatening
fourteen-minute trips. Or may inhibit law enforcement from
responding swiftly to dn-progresa violent crimes. Or may ever
detain racing the President to critically-needed medical attention
following a terrorist‘s assassination attempt.

The blast that tragically took so many lives in Oklahoma City sent
the nation a sickening but unmistakable message: Terrorism can
strike almost anywhere. AAA Potomac fully supporte and. urges
installation of prudent and practical measures to safeguard lives,
but we urge that all consequences of such measu: be conside:
with great care. A thoroughly balanced approach will ensure t!
our Nation's Capital is not transformed into a secure Fortre:
Washington but immobilized capital city. Thank you.



13

6/7 46 231
6/8 53 373
6/9 37 303.5

FOR THESE DATES, THE COSTS TOTAL ABOUT $134,000. WITH
THE NEW TRAFFIC PATTERNS, THE NUMBER OF TRAFFIC POSTS
HAS DROPPED TO 18 AND MPD ANTICIPATES THAT THE DETAIL

WILL BE NECESSARY THROUGH JULY 14, 1995.

3) WITH REGARD TO PARKING METER REVENUE, WE ESTIMATE
THAT TO DATE, ABOUT $62,000 HAS BEEN LOST AS A RESULT OF
THE INITIAL ACTIONS TAKEN FOLLOWING THE CLOSURES. IT
SHOULD BE NOTED THAT AFTER A FEW DAYS, MOST OF THE
PARKING RESTRICTIONS WERE RELAXED AND THE LOSS OF

REVENUE DECREASED GREATLY.

4) THE WASHINGTON METROPOLITAN TRANSPORTATION

AUTHORITY ESTIMATES THAT THE CHANGE IN BUS ROUTES;


55

surprise. There was no advanced notice to the residents of the District, to
commuters and to visitors. The closing of the avenue forced peuple tu seek
other routes through the city, caused traffic Jams, and is wasting people's
time. We know the tens of thousands of dollars it cost the city In police time
and in rerouting the traffic patterns. It 1s not clear to me that the
inconvenience and expense caused by the closing of Pennsylvania Avenue
significantly increases the safely of ihe President.

T see the closing of the avenue to vehicular traffic as something comparable to
building a medieval moat and filling it with water to protect a feudal ford.
Sure this measure increases security around the White House, but it Is
unreasonable.

There will always be security concerns around public figures and buildings.
However, these are relative. Some concerns are more worrisome. Again,
given the Information generally available to the public on the closing of the
avenue and knowing that there are other security concerns, it seems to me
that the closing of Pennsylvania Avenue was a capricious knee-jerk reaction
to the Oklahoma City bombing. It doesn’t seem to me that the closing of
Pennsylvania Avenue was warranted:


2

There are also fiscal issues for Congress to review. The changes
made will affect many more streets than just those referred to in
the Treasury order. Revenues from parking meters, loading zones,
and vending spaces for adjacent streets must be analyzed as to any
adverse impact on the city.

The subcommittee has initiated correspondence with the city and
the Treasury Department on this issue. Those letters and cor-
respondence will be put into the record of this hearing. Many city
officials are here to testify today. The subcommittee and the Treas-
ury Department mutually concluded that testimony, in addition to
previously available written remarks, would not move us signifi-
cantly forward today.

However, I intend to continue the correspondence with Secretary
Rubin, and, at an appropriate time this summer, the subcommittee
will conduct another hearing to address the long-term situation re-
garding Pennsylvania Avenue. It is vital that information on this
issue be put into the record in order for this subcommittee to deter-
mine if further action is warranted.

I would yield now to the ranking member of the subcommittee,
Ms. Norton, for an opening statement.

Ms. Norton. Thank you very much, Mr. Chairman.

I would like to thank Chairman Davis for his quick response to
my request for this hearing. The residents, businesses, and officials
of the District of Columbia deserve their day in court. We need to
know the effect of the critical decision to close Pennsylvania Ave-
nue, a major thoroughfare of this city, on those who have person-
ally to live with it.

T do not intend “day in court” to imply a challenge to the decision
to take steps to protect the President and the White House com-
plex. Following the Oklahoma City tragedy, most residents and
commuters have accepted the need for further action. What we do
not accept are any further unilateral steps without thorough con-
sultation and agreement.

Interior Secretary Bruce Babbitt and Eljay Bowron, Director of
the Secret Service, have personally assured me that full collabora-
tion with District officials, Members of Congress, and others will
now take place. With such cooperation, we can perhaps mitigate
further damage to the District while maintaining strong security
for the President.

We must accept the present closure, but I do not accept the no-
tion that historic Pennsylvania Avenue must be closed forever. The
case simply has not been made for a permanent closing. Will ad-
vances in technology, for example, make such heavy-handed, garri-
son-state security measures unnecessary in the future? The burden
is on the Secret Service and others who are responsible for the clo-
sure. That burden has not yet been met.

My major concern now is to mitigate the harmful effect of the
present closing on residents, businesses, commuters, tourists, and
the city itself. In closing down a major artery of this city, the Fed-
eral Government has affected the life blood of our fragile economy.
We have few enough residents and businesses in the city without
making life harder for those hardy enough to remain. Every action
we take must be done not only for the convenience of the govern-


72

of other streets to talk about, not the least of which is that western

E Street, behind the White House, was a major connector for peo-

ple getting out of the city in the evening, going from all the office
uildings in the east end of Pennsylvania Avenue——

Mr. Davis. To northern Virginia.

Mr. FAZAKERLEY. To Northern Virginia and to Northwest Wash-
ington, vis-a-vis the Whitehurst Freeway. So what we need to do
is, we need to collaborate together, be co-owners, local government
and Federal Government, do a study quickly, get participation, find
out what the facts are, and then get participants like the Secret
Service in there and begin to ask the questions: Well, could you live
with that being open? Here’s how many of the impacts would be
mitigated with that one circumstance alone.

So I would like to see this committee move quickly, at the end
of today, to have a sense of, yes, we will have a study; yes, it will
be collaborative between the city and the Federal Government. We
need to begin to tell the business community that we’re not going
to just sit back; we're going to get some facts, and we're going to
close uncertainty and have participation and make it better.

Mr. Davis. Frankly, I don’t think that’s unreasonable, in light of
everything at stake. Something nobody mentioned, but that I was
wondering about—do you think taxi fares are going to be affected
by this?

Ms. JEFFERS. I took a taxi ride over here today, and I just said,
“What do you think about the closing of Pennsylvania Avenue?” as
I have asked all the cab drivers about town. And he started to say
it was a terrible, awful—and I said, “You know, I’m going to a
hearing right now.” He said, “Can I come with you?”

And he said—this is what he told me—he said, “I have lost $40
a day in revenue because,” he said, “we’re on the zone system. I
don’t have—the meter is not ticking for me. And if I have to cir-
cumvent the Avenue,” he said, “$40 a day.”

Mr. Davis. In an economic impact study, Greg, like you talked
about, that could be one of the impacts that we could look at.

I think we need to have a dialog. I think that was demonstrated
here today by the city officials. We have one more person who is
going to testify.

I have other questions, but I think I will hold them and pass the
baton here to Ms. Norton and see if she has any questions.

Ms. Norton. Thank you, Mr. Chairman.

First—I suppose I should ask this question of Ms. Jeffers and
Mr. Fernandez—do you have any notion at the present time of the
effect on property values? For example, any sense of whether you
have heard indication from others that it will be harder to rent
spaces or apartments in areas that adjoin or are affected? Mr.
Fazakerley may also want to answer that question, but I would like
the three of you to look at that issue.

Ms. JEFFERS. Again, while there has been some speculation
about the east end maybe being adversely affected, office buildings,
this is, there were others, when I raised that question, who said,
“Well, it depends. For some who access Capitol Hill, have tenants
that do that, it might be advantageous to move from the west end
to the east end.

Ms. Norton. I’m sorry. I don’t understand what you mean.


27

our bus service, both for patrons who will have less satisfactory service, and for the
city's increased costs through its formula with METRO.
Long term planning

The hearing testimony and the proposed resolution recommend long-term
planning and studies which at the hearing we were told would be undertaken with the
assistance of funding from the federal government. This planning should take
cognizance not only of the problem of moving traffic in various places--and the
District is fortunate that our forefathers planned a street plan system which facilitates
traffic movement-- but should encourage use of mass transit and fully recognize the
importance of the integrity of the city's grand plan. As for the design of the area in
front of the White House, several witnesses expressed the view that whatever fancy
design emerges should have open and uncluttered space as its basic feature so that
perhaps the street will be available eventually for at least bus traffic.

In light of the Oklahoma bombing and increased concem about security of the
federal establishment, the President issued an order recently about heightened
security for federal buildings. While recognizing the importance of adequate security
of the federal establishment, the Council is anxious to work out an orderly process
whereby we can consider any future restrictions of our sidewalks and streets. The

Nationa! Capito! must find a way to accommodate security interests of the federal

9


70

Mr. Davis. Peggy, thank you very much.

Let us finish with Ken Hoefer, the executive director of the
Washington D.C. Area Trucking Association.

At the conclusion of your comments, we are probably going to
take a brief recess to go over to the floor and vote.

Mr. HOEFER. Good afternoon, Mr. Chairman, and members of the
committee.

My name is Ken Hoefer, and I am the executive director of the
Washington D.C. Area Trucking Association. The D.C. Trucking
Association is a trade association serving the motor carrier indus-
try in the District of Columbia and the surrounding jurisdictions.
We have approximately 110 members, and the association is the
local affiliate of the American Trucking Association.

Ideally, the members of the association would have preferred if
Pennsylvania Avenue had not been closed. As I am sure you are
aware, the closing of Pennsylvania Avenue has increased the con-
gestion on nearby streets, such as 17th, 14th, New York, and
Rhode Island Avenues. As a result, members of the association,
particularly the courier companies, are finding it increasingly dif-

cult to conduct their businesses.

For example, much of the street parking that had been available
on adjacent streets prior to the closing of Pennsylvania Avenue has
now been eliminated. This has caused a scramble for the remaining
available parking. If the courier companies cannot find parking,
many of them are forced to double-park in order to deliver their
packages. As a result, they incur additional cost in the form of tick-
ets and fines.

If the reopening of Pennsylvania Avenue is not an option that we
can seriously consider, then the D.C. Trucking Association would
ask that the committee consider the following: First, providing ad-
ditional commercial parking zones on adjacent streets; second, in-
creasing the time allowed in these parking zones so that companies
will have enough time to transact their business; and finally, to de-
sign new traffic patterns which impose restrictions, such as no left
turn, in order to keep traffic moving in the area.

Environmentally, the closing of Pennsylvania Avenue is likely to
reduce the air quality in the District. Trucking companies have
been working very hard to reduce emissions by reducing the time
that trucks spend on the road. With Pennsylvania Avenue closed,
trucks and traffic, in general, will be spending more time on Dis-
trict streets, More time in traffic means more pollution in DC.

That concludes my comments, and I thank you for your time.

Mr. Davis. Thank you very much.

I would like to declare a brief recess while we go over to the
floor. Then we will come back and have questions for all of you at
that point. If there are no objections, I will recess the meeting. We
will come back in about 15 or 20 minutes. Thank you.

[Recess.]

Mr. Davis. Thank you very much. That was the last vote for a
couple of weeks. The vote was on whether we get a vacation next
week. Excuse me, they call them, I think, district work periods. I've
learned the euphemisms of Capitol Hill.

Let me start. Mr. Seay, do you know when you might have more
specifics on what the closure could do to the Metro system?


63

THE NEW ONE WAY STREET PATTERN HAS BEEN IN PLACE FOR A
COUPLE OF MONTHS, THE NEW TRAFFIC PATTERNS HAVE HAD A
CHANCE TO STABILIZE, AND TRAFFIC ENFORCEMENT IN THE AREA
RETURNS TO NORMAL LEVELS, WE WILL BE ABLE TO DETERMINE
WHAT WILL BE THE LONG TERM IMPACT OF THE CLOSING OF
PENNSYLVANIA AVENUE.

MR. CHAIRMAN, THAT CONCLUDES MY PREPARED TESTIMONY.
AGAIN, THANK YOU FOR THE OPPORTUNITY TO SPEAK ON THIS
ISSUE AND | WILL BE HAPPY TO ANSWER ANY QUESTIONS YOU
MAY HAVE.


20

STATEMENT OF COUNCILMEMBER FRANK SMITH, JR., CHAIRMAN
COMMITTEE ON HOUSING AND URBAN AFFAIRS
COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, D.C.

BEFORE THE
SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
REPRESENTATIVE THOMAS M. DAVIS, CHAIRMAN
June 30, 1995
It is a pleasure to testify today on the recent "temporary restriction of vehicular
access" on Pennsylvania Avenue and nearby streets, which, as I will explain shortly,
is the preferred characterization of this action on the part of the Treasury Department.
In addition to responsibility in the areas of housing, planning and zoning, the
Council Committee on Housing and Urban Affairs, the committee I chair, is
responsible for street and alley closing legislation that comes before the Council. On
May 26th, less than a week after the Treasury Department's “restriction”, our
committee held a roundtable. On June 22nd the committee marked up its report and
a proposed resolution. The proposed resolution was introduced originally to the
Council jointly by Chairman Clarke and me and referred to the Committee on
Housing and Urban Affairs by Chairman Clarke for review and markup. The
proposed resolution will go before the full Council on July 11th, its next session. The

2


37

Mr. KING. We believe that with the signs and the fact that we
have had police officers out for the amount of time we have had
them out, and the media letting people know about the change in
the traffic patterns, that it would be minimal in the future. Also,
we would just have to take a look at it. You don’t know these
things until you actually try them.

I know the first day of the switch-over of H and I, there were
certain intersections that police—I went down and talked to a num-
ber of them—indicated that traffic flowed really well; they didn’t
have any problems. There were a number that they had tremen-
dous problems with, in terms of people wanting to turn the wrong
way and that kind of thing.

T think, by the time that they end the detail—I believe it’s July
14—that traffic will know where to go, and we won’t have to worry
about people turning in the wrong direction.

Ms, Norton. Well, they won’t have to worry about that, but you
testified that 15th and 17th Streets were among the busiest arte-
ries.

Mr. Kina. Exactly.

Ms. Norton. You can’t make the relative comparison, but you
were willing to say they are among the busiest arteries. I have cer-
tainly been to those streets since.

Assuming everybody knows which way to turn, what does that
have to do with the volume of cars that will be going up and down
15th and 17th Streets?

Mr. KiNG. The volume of cars is going to be pretty much the
same. People are going to various places. As you know, 15th and
17th get you to Connecticut and to K Street, and to go north and
east and west. So it’s kind of major way that’s always going to have
a lot of traffic on it.

Ms. NorTon. As I think all of you perhaps know, in the morning
when Congress and staff come, and in the evening when we leave,
down at South Capitol and all around the Capitol, there are police
men and women who direct traffic. And they do so because this is
the Capitol complex and they want to keep the traffic going, and
because they feel an obligation to keep traffic going in this Federal
area,

Now, Pennsylvania Avenue has been closed off for exclusively
Federal reasons. We just heard testimony that, while people may
know which way to turn, the volume of traffic is not likely to
change. Having been on those streets, the traffic cops seem to have
kept the traffic moving fairly smoothly. If they are not there, con-
sidering the way in which H Street is shaped, considering that
commuters use 15th Street to come up 17th Street and to go back,
this non-traffic-expert sees real chaos and clogging of the arteries
there.

I am wondering if you think it would be appropriate for some
agency of the Federal Government to make policemen available
around this closure that it has made available around the Capitol
complex?

Mr. SMITH. Ms. Norton, could I just add one thing to that, please.
That is, as you well know, the White House is one of the favorite
points of contact for visitors who come here. This city not only has
our own residents and our own commuters who come back and


57

in operating cost, the potential reduction in passenger revenue, and
any resulting increase in subsidy to the District of Columbia.

Now, concerning the cost impact on Metrobus of closing Penn-
sylvania Avenue, Metro has incurred, to date, approximately
$40,000 to $50,000 in additional one-time cost in order to imple-
ment the two route changes on May 20 and June 25. This one-time
increase in operating cost was for the staff time and resources re-
quired to process and implement the route changes, move and relo-
cate bus stops, inform riders, and print new timetables.

With regard to the ongoing annual recurring cost for the oper-
ation of the buses, we believe that the ongoing annual operating
cost of the new bus routes will increase by at least $30,000 over
the previous annual cost. This assumes, of course, that the new
street changes will improve current traffic congestion in the area,
that Metro buses operating in the affected area will experience a
reduction in current travel time, and that there will be no signifi-
cant loss in bus ridership due to the rerouting.

I want to stress, however, that this projected cost impact is en-
tirely dependent on the results of the new street pattern, which has
been in place less than a week and has not really been fully evalu-
ated and: analyzed.

If the new street pattern does not eliminate the increase in trav-
el time that we have experienced since May 20, bus schedules will
need to be changed to accommodate this increase in travel time.
This could have a significant adverse impact on operating cost and
bus ridership. For example, a continuation of the current increase
in travel time of 5 to 15 minutes could generate additional cost of
$200,000 annually, if it has to be incorporated into the bus sched-
ules on the affected routes.

In addition to this potential increase in operating cost, bus rider-
ship is very sensitive to increases in travel time. As a result, any
significant increase in running time could have an adverse impact
on bus ridership. Given the large number of riders that are passing
through the affected area, a_ small loss in riders could have a sig-
nificant impact on revenue. For example, a 5 percent loss in rider-
ship on the affected routes, due to increased travel time, would re-
sult in a $200,000 reduction in annual revenue.

Since the new street pattern in the affected area has been in
place for less than a week, we are not able to really provide a clear
determination on the long-term impact on Metrobus cost, revenue,
and subsidy at this time. Once the new one-way street pattern has
been in place for a couple of months, new traffic patterns have had
a chance to stabilize, and traffic enforcement in the area returns
to normal levels, we will then be able to determine the long-term
impact of the closing of Pennsylvania Avenue on Metrobus service.

Mr. Chairman, that concludes my prepared testimony. Again,
thank you for the opportunity to speak on this issue.

(The prepared statement of Mr. Seay follows:]


23

1820, there is evidence of its existence and its maintenance by the local government
from the early 1820's (see the testimony of Mr. Hawkins, historical cartographer, in
the committee report). In this century, the Street Readjustment Act of 1932 was
enacted by Congress to provide a way to formalize the transfer of streets not already
covered by the 1802 Act. Finally, the Street and Alley Closing and Acquisition
Procedures Act of 1982 was enacted by the city, which is the law we deal with now.
These early actions and subsequent legislative acts all give the District of Columbia
the jurisdictional authority over those streets and alleys not otherwise retained by the
federal government or which are under completely private ownership without
easements for the District government's use. (The United States Congress,
incidentally , has reserved certain streets in its vicinity for its jurisdiction under the
Architect of the Capitol exclusively, with only some of these streets to be maintained
and improved by the District of Columbia.)
Characterization of the Treasury Department's Action

The second issue has to do with properly characterizing the Treasury

Department's action. It is our view that the Treasury Department has the authority to
effect certain temporary traffic restrictions under the provisions cited in its Treasury
Order 170-09, but that permanent, complete street closings remain--at least under
current law--within the purview of the District government.

5


90

THE DEPARTMENT OF THE TREASURY'S RESPONSE TO CHAIRMAN DAVIS
REGARDING THE CLOSING OF CERTAIN AREAS ADJACENT TO THE WHITE
HOUSE.

(1)

Bp

‘The Secretary of the Treasury directed the Secret Service to prohibit vehicular traffic on
segments of Pennsylvania Avenue and South F venue, and on State Place,
pursuant to jus authority under 31 U.S.C, Section 321, 18 U.S.C. Section 3056, 3 U.S.C,
Section 202, This security measure was deemed imperative to protect the President and
the Fars Famuly while they are within the White House. Legal opinions that discuss the
Secretary's authority under those statutes were provided by the General Counsel of the
Department of the Tre and the Office of Legal Counsel at the Department of
Justice. Based upon the statutory provisions cited above, the findings and conclusions oi
the Department af the Treasury's White House Security Review, and the opinions of
counsel described above, the Secretary directed the Secret Seevice to take this action.

alive

Copies of the opinions of counsel are provided at ‘Tab A.

What authority do you believe you may have to make these changes permanent, and

. ievey '
w ys a ions permanent?
Please refer to the Department of the Treasury's response to Question (1) above.

The President has asked Secretary Babbitt and the Deparment of the Interior's National
Park Service to develop « long term design for Pennsylvania Avenue in front of the White
House. He has directed the National Park Service 1 work with a pre-enisting group, the
Comprehensive Design Plan for the White House. The Comprehensive Design Plan
group will collaborate sith other entities in this eftor. including Congress, District of
Columbia officials. the Department of Transporavan and the Federal Highway
Admicistration

Do you oc the Administration have any plans for future actions of a similar nature?

No other actions of a simular nature are planned at this time


44

Part of what I testified to is the resolution that Mr. Smith and
I introduced, which has been reported by his committee and we are
going to vote on, in the way of requesting things, and that’s an en-
vironmental impact statement, other than just the green grass and
the ground around Lafayette Square, but the impact statement
goes to the whole area, including particularly the businesses.

There are businesses at every level. There are major national,
maybe international, corporations located in that area. There are
medium level businesses, such as the tour buses that we talked
about. Vendors, there are street vendors who are licensed busi-
nesses, paying taxes in the District of Columbia, completely wiped
out, just wiped out.

There is a larger amount of impact on the city than just paying
a police officer straight time—they are on voluntary service up
until July 14—and then giving us the money and we put that into
our payments. I was talking about that running up against the cap.

There are bigger impacts. We were talking earlier about the fact
that the administration’s suggestion that we be relieved of the $16-
million match for the Federal match would not only save us that
$16 million but would make available $82 million this year that
might not otherwise be available, and $90 million next year, just
because we weren't able to make those matches.

So it goes a little bit beyond just paying a police officer straight
time when he is volunteering between now and 2 weeks from now.
July 14, in the middle of the summer, when nobody is really here,
that service stops, and September 6, the day you come back and
the day everybody else comes back to Washington, we're going to
have a major traffic jam again.

So we're looking at it, but it has to go beyond just the dollars the

city administrator talked about. The Federal Government, as I said
in my testimony, should finance an exhaustive economic study of
what this means in the economy of our city. So that would be the
cost.
And if I could take the fact that you went into an additional
issue by virtue of answering your question—into a related issue
that is not exactly there—the parking in the area was addressed
before. We do have legislation that Ms. Norton has introduced
down here to authorize us to go forward with a program that we
have legislated in the council, for a parking authority in the Dis-
trict of Columbia, to create more parking down here.

That’s one of three pieces, along with the convention center and
the arena that I think you’re going to hold a hearing on, on July
12. But if that could get in place, then we might have the capabil-
ity to create some more parking.

Mr. GUTKNECHT. The reason I raised the issue of the formula—
and I think it’s going to be important—you will be much more per-
suasive, not only before this committee, but I think especially in
front of Mr. Walsh’s committee, if you can justify that.

Let me just say, if you talk about parking, IT mean, my own as-
sumption would be that if people don’t park at one meter, they are
going to have to park at another meter. I mean, it’s not like they
are not going to park somewhere. Everybody has to be somewhere,
and eve: ly has to park somewhere. And the same would be true
with the parking revenue.


85

Testimony of John L. Green

Chairman, District of Columbia Chamber of Commerce
Government Affairs Policy Committee

‘The District of Columbia Chamber of Commerce appreciates this opportunity to
submit testimony regarding the closure of Pennsylvania Avenue in front of the White

House.

As you know, the District of Columbia Chamber of Commerce represents the
interests of businesses operating in the District. In that role, the Chamber is committed to
promoting actions intended to create a more positive climate for the business community
and an environment that will promote economic growth and financial stability for the
District. These goals are of paramount importance, especially at a time when the District

faces its most difficult challenges with respect to financial soundness.

The Chamber has chosen to testify on the Pennsylvania Avenue closure for two
reasons. First, because we are a District-based organization, we are concerned about
retaining fundamental aspects of home rule despite the need for federal intervention on
certain local issues. Second, we are concerned about protecting the District from any
adverse financial consequences the closure may have on the District government and

business community.

It is our view that any efforts of Congressional representatives and other federal

officials to assist in resolving the District's problems should not exclude the mayor or the


62

PATTERN DOES NOT ELIMINATE THE INCREASE IN TRAVEL TIME
THAT HAS BEEN EXPERIENCED SINCE MAY 20TH, BUS SCHEDULES —
WILL NEED TO BE CHANGED TO ACCOMMODATE THE INCREASE IN
TRAVEL TIME.

THIS COULD HAVE A SIGNIFICANT ADVERSE IMPACT ON
OPERATING COSTS AND BUS RIDERSHIP. FOR EXAMPLE, A
CONTINUATION OF THE CURRENT INCREASE IN TRAVEL TIME OF 5
TO 15 MINUTES COULD GENERATE ADDITIONAL COSTS OF
$200,000 ANNUALLY IF IT HAS TO BE INCORPORATED INTO THE
BUS SCHEDULES ON THE AFFECTED ROUTES. IN ADDITION TO THIS
POTENTIAL INCREASE IN OPERATING COSTS, BUS RIDERSHIP IS
VERY SENSITIVE TO INCREASES IN TRAVEL TIME. AS A RESULT,
ANY SIGNIFICANT INCREASE IN RUNNING TIME COULD HAVE AN
ADVERSE IMPACT ON BUS RIDERSHIP. GIVEN THE LARGE NUMBER
OF RIDERS THAT ARE PASSING THROUGH THE AFFECTED AREA, A
SMALL LOSS IN RIDERS COULD HAVE A SIGNIFICANT IMPACT ON
REVENUE. FOR EXAMPLE, A 5% LOSS IN RIDERSHIP ON THE
AFFECTED ROUTES DUE TO INCREASED TRAVEL TIME WOULD
RESULT IN A $200,000 REDUCTION IN ANNUAL REVENUE.

SINCE THE NEW STREET PATTERN IN THE AFFECTED AREA HAS
BEEN IN PLACE FOR LESS THAN A WEEK, WE ARE NOT ABLE TO
PROVIDE A CLEAR DETERMINATION OF THE LONG TERM IMPACT ON
METROBUS COSTS, REVENUE, AND SUBSIDY AT THIS TIME. ONCE

6


86

2
Council of the District of Columbia. Each should play an active role in every aspect of the

planning and implementation of matters that have a direct impact upon District residents
and businesses.

Although the closing of Pennsylvania Avenue was due to concern for the safety of
the President, the nature, extent and circumstances surrounding the closing should not
ultimately be resolved without substantial input from District officials. Such individuals
are the only officials, other than Congresswoman Norton, who are directly responsible for
and accountable to District residents and businesses. To exclude District officials from the

decision-making process is to deprive residents and businesses of the opportunity to shape

their future.

Some in the business community are concerned that the Pennsylvania Avenue
closing has separated the District into two "downtowns." Without vehicular access to the
portion of Pennsylvania near the White House, it is burdensome for drivers to travel from
K Street and Connecticut Avenue on the west to the emerging commercial areas to the east.

This is at a time when there is an attempt to establish continuity in business activity across

the District.

A more specific example of how the closure has harmed businesses is in the taxi
industry. The rerouting of traffic and the congestion in the area have forced taxi drivers

to spend more time and travel greater distances to transport passengers. However, due to


121

(ONE HUNDRED FOURTH CONGRESS

Congress of the United States

Bouse of Representatives me

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT — Sexsusfgume wacuae
2157 Raveurn House OFrice BUILDING Nenos stannic
WASHINGTON, OC 20515-6143 eee ae

Es June 8, 1995 segareangen ment

Hon. Marion Barry

Mayor, District of Columbia
441 4th Street, N.W., #1100
‘Washington, D, C. 20001

Dear Mayor Barry,

‘As Chairman of the District of Columbia Subcommittee I believe I have a responsibility to inquire
into certain aspects of the Order from the Secretary of the Treasury to the Secret Service closing
specific areas adjacent to the White House and any future plans the Department may have.
Accordingly, could you please advise me as to the following:

1. Which city officials were contacted regarding this action prior to its implementation? If contact,
was made, were they consulted or informed?

2. What is your understanding as to why this action was taken?

3. Do you have any indication that the Treasury Department intends for its action to be
permanent, or that other plans are in progress of a long term or permanent nature?

4, What has been the response of the District of Columbia government to the action that was
taken? Please indicate specific actions to deal with the traffic situation, including immediate steps
and long term planning,

‘5. What costs are there to the District as a result of the action taken?

6. What revenues have been lost or foregone to the District as a result of the action taken?
Please include future estimates as well as short term projections.

7. What is the nature and status of any discussions with the Treasury Department on the questions


124

2

such consultant being invited to testify at an early initial hearing before this Subcommittee
‘on the Pennsylvania Avenue closing issue? The Subcommittee anticipates other activity on
this matter as more information becomes available on the long term situation.

8. Please attach a comprehensive compilation of all congressional and District of
Columbia government consultation on this matter prior to and since the time action was
taken.

As this matter is of concern to both the District of Columbia and Congress an expeditious
response to this letter would be most appreciated. Thank you for your prompt attention.

Sincerely,

Tom Davis, Chairman,
District of Columbia Subcommittee
Government Reform and Oversight Committee

ec Speaker Newt Gingrich
Del. Eleanor Holmes Norton
Chairman William Clinger
Congresswoman Cardiss Collins
Members of the District of Columbia Subcommittee
Senator William Cohen
Mayor Marion Barry
Council Chairman David Clarke


31

I think it’s July 11. The proposed resolution will go before the
council on, as I said, July 11.

The vehicular restrictions that have already resulted, and will
continue to result, have significant adverse impacts upon the resi-
dents, the businesses, and the visitors in the District of Columbia,
including adverse traffic impacts; that is, vehicular circulation,
parking availability, and commercial loading and unloading; eco-
nomic impacts, both direct and indirect impacts, upon existing and
new businesses, and upon short-term and long-term costs and fore-
gone revenues to be borne by the District of Columbia; and upon
the historic preservation of our city and environment impacts.

It is our view that the Federal Government should immediately
undertake and pay for the entire cost of both an environmental im-
pact statement and study, as defined by the National Environ-
mental Protection Act, and a historic resources study, as defined in
the National Historic Preservation Act.

These Federal laws establish processes which would provide an
opportunity for public and governmental, Federal and District par-
ticipation in the identification, study, and cost of every short-term
and long-term adverse impact resulting from the vehicular restric-
tions, and the identification, study, and cost of each action nec-
essary to eliminate or mitigate every adverse impact.

The Federal Government should pay for the entire cost of elimi-
nating or mitigating every adverse impact resulting from vehicular
restrictions, with Federal funds which are not part of the annual
Federal payment to the District government, nor part of any other
Federal funds which would otherwise be provided to the District
government, and without regard to any expenditure limitations to
which the District government is subject.

When Councilmember Smith’s Committee on Housing and Urban
Development held a hearing 1 month ago on this issue, there was
overwhelming consensus amongst our business and residential
communities that a process needs to be established to both identify
and pay for the mitigation of every adverse impact resulting from
the Federal Government’s vehicular restrictions in the economic
and historic heart of our city.

It is my view that the Federal Government's own laws, the Na-
tional Environmental Protection Act, and the National Historic
Preservation Act, provide the best framework for these adverse im-
pacts to be identified and mitigated. I applaud this committee for

olding this hearing and encourage your support for the establish-
ment of such a process.

Thank you again for the opportunity to testify here today.

{The prepared statement of Mr. Clarke follows:]


U.S, HOUSE OF REPRESENTATIVES
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA
PENNSYLVANIA AVENUE CLOSURE HEARING

FRIDAY, JUNE 30, 1995

GOOD AFTERNOON, CONGRESSMAN DAVIS AND MEMBERS OF

THE SUBCOMMITTEE ON THE DISTRICT OF COLUMBIA.

THANK YOU FOR INVITING ME TO ADDRESS YOU REGARDING
THE CLOSURE OF PENNSYLVANIA AVENUE AND THE IMPACT OF
THIS CLOSURE ON THE DISTRICT OF COLUMBIA, ITS RESIDENTS,

AND ITS BUSINESS COMMUNITY.


46

Mr. Smitu. I’m sure.

But let me also add one other thing about this issue of the im-
pact of this. One of the things, as a result of this closing, was to
negotiate an arrangement with Riggs Bank. You may remember
that on the north side of Pennsylvania Avenue, between 15th
Street and Madison Avenue, the Riggs Bank is actually the only
privately owned business on that street. Now, there’s Nations Bank
there, too, but its entrance actually is on 15th Street.

Riggs—this is their original headquarters, I understand, of the
bank. It’s a historic property. Riggs has invested a tremendous
amount of money into fixing up this property. When this street was
closed, the president of Riggs Bank called me and said, basically,
“You all put me out of business. I don’t have any more customers.
My customers can’t drive in here anymore.”

Actually, at that point they had already talked to the Treasury
Department and said, “There’s no security problem with people
coming to my bank to deposit money.” And the Treasury Depart-
ment said that if we could get the public works department to
agree, they could open it up and put a little cul de sac in there so
that people could—and you may notice that there is a cul de sac
in there now.

But my point is that the Riggs president described this to me as
a taking, basically, that is we had just devalued their property; we
had taken it from them; they had to get rid of it. Obviously, it
would be worth a lot less because you couldn’t get in there with
any kind of vehicular traffic. They couldn’t even get in there for
their loading and unloading purposes.

So my point is that, in the light of hearing not only this example,
but also the President’s statement recently that there may be some
other changes around these other Federal buildings around the
city, obviously, the city has to be very concerned about this, be-
cause we're not only talking about just the question of reimbursing
Police officers and parking meters and trying to rearrange traffic,

ut we also may see tremendous impact here on our economic com-
munity, which is already suffering and needs relief rather than
some other encumbrance.

Thank you, Mr. Chairman.

Mr. Davis. Thank you all very much.

Any other questions?

(No response.]

Mr. Davis. If not, we will excuse this panel and say to all of you,
thank you very much. We appreciate your comments, and we hope
this will be a continuing dialog. We're going to emphasize to the
executive branch how important it is that they continue to work
with you on this and other issues. Thank you.

As this panel leaves, we will move to our second panel. I call
Gregory Fazakerley—who is the president of the District of Colum-
bia Building and Industry Association; Dr. Henry Fernandez, who
is the chairman of the Advisory Neighborhood Commission; Law-
rence Reuter, who is the general manager of WMATA, Ms. Mar-
garet Jeffers, the executive director of the District of Columbia
Apartment and Office Building Association; and Mr. Millard Seay,
the director of planning for the Washington Metropolitan—Millard
Seay is going to be appearing in lieu of Lawrence Reuter—and Ken


6

The Washington Metropolitan Transportation Authority esti-
mates that the change in bus routes, increase in driver time, in-
crease in supervision, and notification of changes to the public has
cost about $45,000. In addition, the Office of Mass Transit at DPW
incurred $23,000 in costs in relocating bus shelters to new loca-
tions.

Mr. Chairman, it is the opinion of the District of Columbia that,
clearly, any costs or loss from the closure of Pennsylvania Avenue
and E Street should be reimbursed by the Federal Government. To
date, the Federal Government has reimbursed the District appro-
priately.

As a part of the long-term evaluation of the closures, economic
impacts will be identified, including the loss of business to enter-
prises in the area of the closure and the impact of tourism. This
study will require some additional time for completion. In addition,
the responsibility for emergency response and security on the 1600
block of Pennsylvania Avenue must be determined.

It is our opinion that MPD continues to have jurisdiction over
the street. Under the previous arrangement, the Park Police had
jurisdiction over Lafayette Park, the sidewalk near Lafayette Park,
and the sidewalk next to the White House fence. While MPD had
formal jurisdiction over the street, it allowed the Park Service to
do the day-to-day enforcement on the street. MPD took over when
there were demonstrations on the street segment.

We recommend that if and when any architectural changes are
made to the area, further discussions are needed between MPD,
the Park Police, the Secret Service, the FBI, et cetera.

In closing—and I will wrap up quickly—we in the District are
also concerned about the long-term and proposed architectural
changes for the Pennsylvania Avenue and E Street area.

If the Federal Government decides to make the closure perma-
nent, it should request a formal closing. This process, when com-
pleted, will result in freeing the District of any maintenance re-
sponsibilities for the streets. If the architectural changes are ex-

ected prior to the formal closures and change of jurisdiction, the
District of Columbia would expect to participate in the evaluations
of such studies.

I appreciate the opportunity to testify before you. After hearing
Councilmember Smith, Mr. King and I would answer your ques-
tions.

[The prepared statement of Mr. Rogers follows:]


40

Ms. Norton. You know, that’s like in the McCarthy era, if they
said “national security,” you weren't supposed to ask any more
questions. We simply have to draw out the reason for that.

Chairman. Clarke, I seem to recall that there are circumstances
where alley closing results in a quid pro quo; is that routinely done
when an alley closes?

Mr. CLARKE. Yes, it’s routinely done. The council has set some
standards for that, that when people come in and get an alley
closed or a street closed, then we look at things like sprinkling for
fire protection, and if they displace small businesses, they have to
provide for relocation for that.

We have done that in legislative standards, and we have now
legislated standards for a contribution to the development of hous-
ing in the city. It’s a complicated formula as to whether that should
be downtown, which can be market rate, or whether it is to be any-
where in the city at low and moderate income rates, moderate
being a family of four with an income of $50,000 or less.

So we have done that, and we have said that if somebody gets
the benefits of land, by virtue of the city’s action of closing the alley
or closing the street, there must be some amenities to the city for
doing that.

That’s what I was mentioning earlier. You were here, but Con-
gressman Davis was not. I think I mentioned this in the early part
of my statement. The testimony I gave in writing was with respect
to a resolution we had before us, but we have not yielded on the
point that we don’t have the authority to actually close the street
itself. Through the authority that the council has had since pre-
home-rule days, it has been written that we close that, and the
standards that I have just talked to are standards that we employ.

Congressman Davis, you were away, but I definitely wanted you
to hear some of what I said, because you deal with our District of
Columbia affairs in many respects, other than just transportation,
and that is that this is going to hurt a lot. It has been hurting a
lot. The executive branch officials are very diplomatic. I’m not al-
ways the most diplomatic person. Our people are really hurting out
there.

The difficulty in traffic is not just I Street and H Street. I hap-
pen to live up 16th Street, on 17th Street, and the backup from
downtown, getting downtown, is far up into the residential neigh-
borhoods, up beyond Meridian Hill. I mean, you've got to be backed
up, up beyond Meridian Hill, to get down to the White House.
That’s an effect of what is going on down there. Now, when they
get down there, yes, police officers do direct them now. We're glad
to have that, I understand until July 14.

I don’t know whether you are reimbursing us now or paying di-
rectly, but I think you should look at the complications of reim-
bursement versus direct payment, because by reimbursement, we
still pay that money as expenses, under the $3.2-billion cap. These
are still expenses, reimbursed or not. It appears, the way our finan-
cial authority issues are working now, even if we get additional
revenues, that doesn’t help us, because we still cannot spend.

If you give us $100, and we go spend $100, we have still spent
$100 against that cap. We happen right now to be projecting $3.3
billion worth of revenues. We are still capped at $3.2 billion.


120

MI. Conclusion

For the foregoing reasons, we conclude that the Secretary has authority under section
3056 to close the streets mentioned above to vehicular traffic. In addition, we conclude that
the other congressional grants of authonty discussed above do not diminish that authority


19

ment’s actions in the future, regarding possible other restrictions
or other jurisdictional issues having to do with the District's
streets.

In general, it does not seem to me to be good public policy to
skirt on the edge of the law or to allow such latitude of interpreta-
tion that absolute discretion can be exercised without clear stand-
ards and clear scrutiny.

I won't go into the issues of cost and related issues. You have
heard of these from our deputy mayor, and you will hear more from
the public works department. | will just summarize by saying that
you do have my written statement, and I stand ready to answer
any questions that you might have regarding these matters.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Smith follows:]


14

INCREASE IN DRIVER TIME; INCREASED SUPERVISION, AND
NOTIFICATION OF CHANGES TO THE PUBLIC HAS COST
APPROXIMATELY $45,000. IN ADDITION, THE OFFICE OF MASS
TRANSIT AT DPW INCURRED $23,000 IN COSTS IN RELOCATING

BUS SHELTERS TO NEW LOCATIONS.

MR. CHAIRMAN, IT IS THE OPINION OF THE DISTRICT
GOVERNMENT THAT, CLEARLY, ANY COSTS OR LOSS OF
REVENUE WHICH HAVE DIRECTLY RESULTED FROM THE
CLOSURES OF PENNSYLVANIA AVENUE AND E STREET SHOULD
BE REIMBURSED BY THE FEDERAL GOVERNMENT. TO DATE,
THE FEDERAL GOVERNMENT HAS REIMBURSED THE DISTRICT

APPROPRIATELY.

AS PART OF A LONG-TERM EVALUATION OF THE CLOSURES,
ECONOMIC IMPACTS WILL BE IDENTIFIED, INCLUDING LOSS OF
BUSINESS TO ENTERPRISES IN THE AREA OF THE CLOSURE, AND

IMPACTS ON TOURISM. THIS STUDY WILL REQUIRE SOME


3

ment but also the convenience of the taxpayers. The President
must be protected; so must the average resident.

The closing could not have occurred at a worse time. The District
does not have sufficient funds to keep its government going. Last
night’s action blocking a waiver of matching funds may mean a loss
of $82 million to repair our streets. Residents and businesses are
holding on for dear life.

Now, with the closing of Pennsylvania Avenue, what is to happen
to those who have offices and businesses that have been made
more inaccessible? What is the effect on property values? What ef-
fect does this have on the dwindling treasury of the District of Co-
lumbia? How are residents who live in the surrounding community
affected? What has been the impact on traffic? In short, what has
been the damage, and what can be done about it?

Respect for D.C. residents is also shown by respecting our local
government, our local officials, and our local processes. We are told
that security made respect for the normal procedures impossible.
That cannot be said of any further actions that may be taken.

I will not support any further action in the affected area that
does not have full public participation and support. This includes
tearing up Pennsylvania Avenue to construct a mall, disturbing La-
fayette Park, or in any way changing the area in front or behind
the White House. I do not support a nationwide competition to pre-
pare for any further changes. There will be time to determine
whether these are appropriate steps. There is too little information
available to make any further precipitous changes.

This hearing begins the Federal Government’s attempt to begin
to get that kind of information. Hopefully, this hearing will also re-
sult in the establishment of a collegial process that will bring satis-
factory results all concerned can support.

Thank you very much, Mr. Chairman.

Mr. Davis. Ms. Norton, thank you very much.

Let me recognize the chairman of our full committee, Mr.
Clinger, who has been a friend of the District of Columbia, and ask
if he would like to make any comment.

Mr. CLINGER. I do not have an opening statement, Mr. Chair-
man. I commend you and Ms. Norton for holding this hearing.

I think it’s time that we do get a full explication of the need for
what has happened and, also, I am interested in finding out what
the implications have been for the city thus far; what impact it has
had; what are the long-term implications of the closing; and how
long and so forth.

I think Ms. Norton has raised a number of the critical questions
that we hope we will begin to get some information about in this
hearing. So I, again, commend you both for holding the hearing.

Mr. Davis. Thank you.

Let me ask the majority member of this committee, Mr. McHugh,
if he has any comments he would like to make at this time.

The gentleman from New York.

Mr. McHucu. Thank you, Mr. Chairman.

Like the full committee, I don’t have a prepared statement, but
I certainly want to add my words of appreciation to you for provid-
ing the continued leadership on not just this but so many matters

fecting this very important place in our Nation. I commend Ms.


132

2

‘those restrictions. Much of the traffic congestion in this area has been caused by the
thousands of tour buses which park, stand, load and unload passenigers im what is now the
‘east bound lane of H Street, from Jackson Place to 16th Street, N.W. Further, the tour
buses require two lanes of traffic to arr on to and off of H Street, causing additional
traffic congestion on the pew major North-South streets. This tour bus activity obstructs
traffic, causes heavy traffic congestion, makes Lafayette Park look like a bus depot and is
completely avoidable. One of the actions common to the three concepts for a
comprehensive design plan receatly proposed by the National Park Service and the eleven
other agencies that have stewardship responsibilities within President's Park is to remove
vehicle parking from the curb lanes of H Street. No other major city permits tour buses
to park, stand, load and unload passengers in its “tourist center.“

It may even be possible to return H Street to a two-way street now that all five
lanes are open for traffic, Since May 20, when tour buses and all other vehicular traffic
were prohibited from stopping in the curb lanes of H Street, we have noticed a significant
improvement in traffic flow in both directions. We have also noticed that when the new
traffic rules are not enforced, and tour buses do park in the east bound lane of H Street,
traffic flow rapidly deteriorates and traffic becomes severely congested. Enforcement of
the new traffic rules is critical. For the same reasons that K Street is kept clear, H Street
must be kept open and moving as well.

In considering all the facts, including the events leading up to the vehicular closing
of Pennsylvania Avene, we respectfully offer the following recommendations:

1 Keep H Street opea and moving.
- Eliminate all stopping, standing, loading and unloading of all vehicles in
any lane, particularly tour buses.

2. Follow the lead of all major cities by eliminating the cast bound lane of H
‘Street as a staging area for tour buses and moving the staging area to a less
congested location.

3. Enforce the new traffic rules.

One major East-West corridor has been eliminated by the closing of Pennsylvania

Avenue. H Street, now bearing a substantially increased traffic burden, must be kept

‘open and moving. Everybody must make a contribution for this new traffic pattern to
work, and it is critical for this city that it does work.


110

public safety measures. The test to be applied, it seems, is whether, given the overwhelming
interest in protecting the President and his performance of his duties, the measures taken are
reasonable under the circumstances." Memorandum from William H. Rehnquist. Assistant
Attorney General, Office of Legal Counsel, to Honorable Roben E. Jordan. IIL, General
Counsel, Department of the Army 11 (Nov. 12, 1969)

Relevant case law confirms this broad view. The Supreme Court has recognized that
[t]he Nation undoubtedly has a valid, even an overwhelming, interest in protecting the
safety of its Chief Executive and in allowing him to perform his duties without imerference
from threats of physical violence." Watts v. United States. 34 U.S. 705. 707 (1969). See
also White House Vigi! for the ERA Committee v. Clark, 746 F.2d 1518. 1528 (D.C. Cir.
1984) (""At stake is not merely the safety of one man, but also the ability of the executive
branch to function in an orderly fashion and the capacity of the United States to respond to
threats and crises affecting the entire free world"). Accordingly. courts have construed the
Secretary's authority under Section 3056 broadly. even in the face of constitutional
challenges. In fact. the only limitation the courts have recognized on the Secretary's
authonty has been the Constitution. Where, for example, first amendment nghts have been
imphicated, courts have balanced the Secret Service's interest in protecting the President
against the first amendment nghts of those burdened by such actions.*

Even in the first amendment context, however. courts have been careful to allow the
Secret Service latitude in acting to protect the President. In a decision concerning the Secret
Service's denial of a White House press pass to a journalist, the D.C. Circuit required the
Secret Service to publish the standards it uses to determine White House press pass
eligibility. In delineating the requirements imposed on the Secret Service, however. it agreed
with the Secret Service that the first amendment did not require "detailed aniculation of
narrow and specific standards or precise identification of all the factors which may be taken
imo account in applying [the] standard.” Sherrill v. Knight, 569 F.2d 124, 130 (D.C. Cir
1977). The court stated that “[iJt is enough that the Secret Service be guided solely by the
pnaciple of whether the applicant presents a potential source of danger to the President
and/or his immediate family so serious as to justify his exclusion” Id, Arguing that this
tnore exible approach was appropriate given the mission of the Secret Service, the court
declared that "[tJhis standard is sufficiently circumspect so as to allow the Secret Service.
exercising expen judgment which frequently must be subjective in nature, considerable
leeway in denying press passes for security reasons." Id, The court also indicated its belief
that courts should be "appropriately deferential to the Secret Service's determination of what

> See A Quaker Action Group v. Hickel, 421 F.2d 1111, 1117-18 (D.C. Cir 1969). See also Sherrill v
Knight. 569 F.2d 124. 128 n.14 (D.C Cir 1977). citing A Quaker Action Group. 421 F.2d at 1117 ("[dhe
congressional grants of authority to the Secret Service to protect the President. . . and to control access to
lemporary presidential residences. cannot be said to authorize procedures or actions violative of the
Constitution [Wie cannot agree with the Government's argument that mere mention of the President's
safety must be allowed to trump any First Amendment issue”)

-6-


69

over the new “park” that is being planned might enjoy a positive

impact.

What we are hearing is that each building is and will be impacted
somewhat differently depending on its exact location and its tenant
mix (i.e., where tenants commute from and what their mobility

needs are during the business day).

In conclusion, those who we were able to speak with have
communicated that it is difficult to quantify the impact of the
closure; but that it is definitely unwelcome. These same individuals
indicated a willingness to work with this committee to study the
impact of the closure if such a study would be helpful to you and
your committee, Mr. Chairman , in your deliberations. -

Thank you for inviting us to participate today.


24

The Council's Committee on Housing and Urban Affairs decided to
characterize the Treasury Department's action as a “temporary restriction of vehicular
access" rather than a street closing. _ Pedestrian access will be allowed, buses will
tum onto the avenue from Madison Place, and if Pennsylvania Avenue is left largely
open, perhaps at least buses will be allowed in the future. If the streets were closed
permanently and_completely to both pedestrian and vehicular traffic, and if those
streets were to qualify as falling under the District's jurisdiction, it is our contention
that such closings would be subject to the District's “Street and Alley Closing and
Acquisition Procedures Act of 1982". This is a somewhat strained interpretation, for
it can be argued that any proposed infringement on the use of these streets should
trigger the applicability of the city’s alley and street closing act. [Related thereto,
incidentally, is our view that the federal government should comply with its own
requirements, such as are embodied in the National Environmental Protection Act
of 1969 and its regulations ("EIS") and the National Historic Preservation Act of
1966 as amended ("NHPA") when it undertakes actions such as these restrictions.]
In the attached report, you will find a description of our street and alley closing law
and the manner in which it works in the summary of testimony afforded by Mr.
Lantz, the District's Surveyor.

For your information, we have concluded that Pennsylvania Avenue, N.W.,

6


10

3) A LONG-TERM TRAFFIC MANAGEMENT PLAN WAS
DEVISED WHICH HAS BEEN IMPLEMENTED AS OF THIS
WEEK. BEGINNING MONDAY, JUNE 26, 1995, THE

FOLLOWING CHANGES WERE MADE:

A. DESIGNATION OF H STREET, N.W. FROM NEW
YORK AVENUE TO PENNSYLVANIA AVENUE AS
ONE-WAY EAST BOUND (THE STREET WAS
PREVIOUSLY TWO-WAY),

B. DESIGNATION OF I STREET, N.W. FROM NEW
YORK AVENUE TO PENNSYLVANIA AVENUE, AS
ONE-WAY WEST BOUND (THE STREET WAS
PREVIOUSLY ONE-WAY EAST BOUND);

C. DESIGNATION OF 15TH STREET, N.W. FROM
NEW YORK AVENUE TO K STREET, AS ONE-WAY
NORTH BOUND (THE STREET WAS PREVIOUSLY

TWO-WAY).


29

Mr. Davis. Thank you.

Let me just start the questioning, and I will start with you,
Councilman Smith. The District law that would provide a process
for closing streets, and so on, if the Secret Service and the Treas-
ury Department wanted to follow that, could you explain to me
what those procedures would be? Second, what concessions, if any,
are normally requested or received from those who apply to close
a local street or alley? I mean, what would be the general process,
if they wanted to call this a street closing? What would be involved
and the cost, in your judgment?

Mr. SMITH. The way our process works, it begins with the abut-
ting property owner’s making an application to the surveyor of the
District of Columbia, Mr. Lance’s office. In this case, the abutting
property owners would be considered the U.S. Government, so it
would file a request, and the surveyor would do his due diligence,
so to speak, and then would forward his recommendation to the
Mayor of the District of Columbia.

The Mayor of the District of Columbia would forward a resolu-
tion recommending the street and alley closing to the Council of
the District of Columbia. The chairman referred the legislation to
the committee which I chair. We would hold a public hearing, vote
the matter out, and then it would come before the full council for
enactment, go back to the Mayor for signing. That’s how the legis-
lation process works.

Mr. Davis. You would look at the costs involved, and that would
all be factored in at that point?

Mr. Smitu. Absolutely. The surveyor’s office has to do a series of
things. His office must consult with the public works department
about issues involving trash, access to trash collection and pickup.
He would consult with the fire department, for example, about is-
sues related to whether you could still fight the fires around there,
because we have to leave access.

Then he would also clear up the title of the abutting property
owners to make sure we had the parties at the table, and whatever
issues they have between them, and he would make recommenda-
tions on those issues.

And he would also check, by the way, with the various utilities
involved to make sure that, for example, water and sewer could
have access to whatever water and sewer connections were there,
that the various utilities, like the power company, had access to
power lines, if there were any there, and if the phone company had
any phone lines that it needed access to, and things like that.

Mr. Davis. Let me say this: In this case, with the financial rami-
fications that it has on the city, I hope that you have taken all of
the costs into account. Generally, would you ask for a contribution
to offset closure costs?

Mr. SMITH. What we would do is this: The city has various laws
that relate to street and alley closing, one of which, for example,
is that, if it were in the downtown area, as this is, in the DDD,
as we call it in our comprehensive plan, it may be that, depending
upon whether, for example, it enhanced the value of the abutting
property owners, we may ask them to either build—depending
upon what they were—if they were building an office building, for
example, they may have to build some housing there.


98

one-way eastbound and I Street one-way westbound, there
would be one more lane than needed in each direction to
carry the peak hour volumes. Consideration might be
given to providing a counter-flow lane on each street
‘for Metrobuses only - a concept that has worked well
lin other cities. The connections of H and I Streets
with Pennsylvania Avenue on the west and with New York
[Avenue on the east can easily be designed to handle
these new traffic patterns.

H_ Street Peak hour volumes are well under 1000
vehicles in each direction, which volume could easily be
absorbed by other east-west streets.

15th Street With the closure of 15th Street, the
traffic would be expected to divert to 14th Street.

‘This would require an eight-lane roadway, compared with
the existing six lanes.

i7th Street Both 18th and 19th Streets (an exist-
ing one-way pair) have adequate capacity to absorb 17th
Street volumes, but there would be some problems. At
the south end, the diversion of northbound traffic to
18th Street via Constitution Avenue and Virginia Avenue
would work reasonably.well. The problems arise princi-
pally with traffic from the north, moving south. This
traffic, coming past Farragut Square from the intersec-
tion of Connecticut Avenue and K Street, would have to
divert via H Street to 19th Street, at Pennsylvania
Avenue. With Pennsylvania Avenue open, the intersection
of Pennsylvania Avenue/H Street/19th Street would be
more severely congested in the evening peak hour than at!
present, although there is probably adequate capacity.
If Pennsylvania Avenue were closed, the diversion to
19th Street would be via I Street, operating one-way

ROBERT L MORAIB. Inc. aol

-3-


@

©)

91

No other similar or related actions of this type are being actively investigated at this time.

in istris ii i put or
of the actions taken or other related matters under review?
We have briefed Congressional leaders and District of Columbia officials prior to and

since the closing of Pennsylvania Avenue and State Place to vehicular traffic. (See
response to Question (8) below.)

We welcome and solicit the input of Congressional and District of Columbia officials at
every stage of the process of developing responses to traffic and design issues.

permanent actions?

‘The Secretary of the Treasury directed the Secret Service to close those sections of the
streets to vehicular traffic pursuant to his authonty under 31 U.S.C. Section 321, 18 U.S.C.
Section 3056, 3 U.S.C. Section 202. This security measure was deemed imperative to
protect the President and the First Family while they are within the White House.

A copy of the Secretary of the Treasury's Order, dated May 19, 1995, 1s provided at Tab
B.

A copy of the traffic impact study conducted by Robert L. Morris, Inc., consultant in
uraffic and transportation, is provided at Tab C. In addition, provided at Tab D, is a copy
of a letter from Georges Jacquemart, a transportation planner and uraffic engineer
consulted by the White House Security Review.


11

MR. CHAIRMAN AND MEMBERS, AS YOU KNOW, THE DISTRICT
HAS INCURRED SUBSTANTIAL COSTS AS A RESULT OF THE

CLOSINGS. FOR EXAMPLE:

1) THE COSTS INCURRED BY THE DEPARTMENT OF PUBLIC
WORKS FOR CONVERSION OF THE STREETS IN THE VICINITY OF
THE CLOSURE HAS BEEN BUDGETED AT APPROXIMATELY
$165,000. A SPECIAL ACCOUNT HAS BEEN ESTABLISHED BY THE
FEDERAL HIGHWAY ADMINISTRATION TO FULLY FUND THIS

EFFORT.

2) WITH REGARD TO THE METROPOLITAN POLICE DEPARTMENT,
OFFICERS HAVE BEEN OPERATING TRAFFIC POSTS AROUND THE
WHITE HOUSE SINCE MAY 22, 1995. THESE DUTIES ARE BEING
PERFORMED BY OFF-DUTY OFFICERS ARE WORKING FROM 6:30
A.M. TO 8:30 P.M. DURING WEEK DAYS. THE DETAIL IS
COMPOSED OF A MAXIMUM OF 23 TRAFFIC POSTS, THREE

TRAFFIC ENFORCEMENT SCOOTER OFFICERS, THREE


97

By way of explanation:

Constitution Avenue There is no logical street
for diversion of this traffic; E Street is the nearest
jand most likely substitute. For E Street to handle the
laddition of Constitution Avenue traffic it would have to
have five lanes eastbound and four lanes westbound -
ja total of nine lanes, compared with its current cross~
isection at the Ellipse of four lanes.

E Street If E Street were closed, the inbound
traffic in the morning peak hour would probably divert
‘to Constitution Avenue, requiring five lanes compared
with the currently available four lanes. In the evening
peak hour the diversion would likely be partly to Penn-
sylvania Avenue and partly to Constitution Avenue.

These streets could theoretically handle the additional
traffic, but there would be a severe back-up on Consti-
tution Avenue at 23rd Street with four lanes merging
into two lanes approaching the Theodore Roosevelt
Bridge.

Pennsylvania Avenue H Street and I Street both
have excess capacity and they would function efficiently
as a one-way pair. The peak hour traffic volumes, com-
bining Pennsylvania Avenue, H Street, and I Street,
would require four lanes eastbound and three lanes west-
bound.* H Street has five lanes, operating two-way with
three lanes westbound and two lanes eastbound. I Street
Operates one-way eastbound with four lanes, although it
has adequate width for five lanes from 13th Street to
midblock between 16th and 17th Streets. With H Street

* The combined H Street, I Street, and Pennsylvania Ave-
nue carry approximately 2200 vehicles eastbound and 1600
vehicles westbound during the morning peak hour, and
approximately 3100 vehicles eastbound and 2000 vehicles
westbound during the evening peak hour.

ROBERT L. MORAG, INC. al



102

3

The plain language of Section 3056 provides you with broad
authority to do that which is necessary to protect the President
and the other protectees listed in the statute. We have found
nothing in the legislative history of Section 3056 that imposes
limitations on your authority to protect the President. Nor have
we found any case law restricting this authority.’

Although Section 3086 specifically lists certain law enforcement
authorities of the Secret Service, the statute does not
specifically mention closing streets to protect the President.
Nonetheless, we believe that the provision provides you with
broad legal authority to close the streets mentioned above should
you determine that it is necessary to do so in order to protect
the President. Moreover, we believe that you will continue to
have authority to close these streets under Section 3056 so long
as you continue to determine that, as @ factual matter, doing so
is necessary to protect the President. The Department of Justice
concurs in these conclusions. (See Legal Opinion of Office of
Leas! Counsel, Department of Justice attacned at Tab A

In 1865, the Secret Service was created as a bureau under the
Department of the Treasury to combat counterfeiting. In 1901, as
result of the assassination of President William McKinley,
Congress directed the Secret Service to protect the new
President, Theodore Roosevelt. In 1906, Congress finally enacted
legislation making presidential protection a permanent Secret
Service responsibility, that authority which is now embodied in
Section 3056. Protective responsibilities have expanded greatly
Since that time to include additional protectees under Section
3056, as well as a number of temporary protective duties, such as
providing security for the Declaration of Independence and the
U.S. Constitution.

Historically, the Secret Service has been involved in a wide
range of actions to assure the safety of the President. These

‘uy office, the Office of the Chief Counsel to the Secret
Service, and the Office of Legal Counsel at the Justice
Department have conducted exhaustive research with respect to
Section 3056, its legislative history and any case law
interpreting its provisions. Very little responsive material was
discovered. The particular language in Section 3056 providing
for the protection of the President was authorized by P.L. 82-79
enacted in 1951. Prior to 1951, the Secret Service's authority
to protect the President was provided for in annual
appropriations bills. With respect to each of these sources
there is no reference to any limitations imposed on the Secretary
with respect to such authority.

‘E.g., the authority to execute warrants, carry firearms
make arrests. See 18 U.S.C. 3056(c)


118

Honorable Ronald K. Noble
May 10, 1995
Page 2

park areas and plazas within a two-block radius. The economic benefits from this larger-
scale pedestrianization will be more substantial because the downtown core will become
known as an attractive pedestrian zone and will attract tourists in targer numbers

Pedestrian precincts have been very successful in other dawntown areas in the United States
and especially in Europe. Some of the best examples in the USA include Santa Monica in
California, the transit mall in Portland, Oregon and Boulder, Colorado. In Europe, good
examples exist in the new commercial and tourist areas in Paris, the main street in Munich,
Las Ramblas in Barcelona, Kings Garden in Stockholm, downtown Copenhagen and
Amsterdam. Project For Public Spaces, a non-profit organization in New York specializes in
the implementation of pedestrian areas and is a good resource for these examples. You may
want to contact Ms, Kathy Madden or Shirley Secunda at 212-620 5660 if you require
additional information

Feel free to call me if you have any questions regarding these comments, From Thursday
May 1} through Monday May 15 | can be reached in Luxembourg at 011-352-223182

Sincesaly.
ff

van
Gforged Jacquemart, PE, AICP

Principal


65

What we are hearing is that each building is and will be impacted
somewhat differently, depending on its exact location and its ten-
ant mix, where tenants commute from and what their mobility
needs are during the business day.

In conclusion, those whom we were able to speak with have com-
municated that it is difficult to quantify the impact of the closure
on the economic value of properties but that it is definitely unwel-
come. These same individuals have indicated a willingness to work
with this committee to study the impact of the closure, if such a
study would be helpful to you and your committee, Mr. Chairman,
in your deliberations.

Thank you.

[The prepared statement of Ms. Jeffers follows:]


71

Mr. Seay. Well, we feel that about 3 or 4 weeks after this recent
change we should begin to collect some data and begin to identify
some impacts. I think, probably, sometime in September we will
have a better handle on the long-term impact.

Mr. Davis. OK. Thank you very much. If you could forward that
to the committee, I would be very interested in reading, as a subur-
ban representative who recognizes that what happens in downtown
Washington on Metro ridership affects what Fairfax and other ju-
risdictions pay. There really is a ripple effect on those things
around the region.

Peggy, can I ask you a question? What ripple effect, if any, do
you anticipate for property values and land uses as a result of the
actions taken to date?

Ms. JEFFERS. Like I was saying in the testimony, some of the
people we talked to said that they were concerned about potential
diminution of value for certain properties. Yet, at the same time,
they said it is a very difficult thing to quantify. It was something
they were really reluctant to try to do. What they have said is that
there’s no question that the perception is that there are two cities,
and how that translates into people’s decisionmaking is really un-
clear at this point.

Mr. Davis. But if you are at Riggs Bank, it’s going to have an
effect, isn’t it?

Ms. JEFFERS. Well, some of them were concerned about investors.
Some people were concerned about the effect that it would have on
properties specifically located around the White House, those on
15th Street, in the Metropolitan Square area. But, again, very dif-
ficult to quantify, and I would be reluctant to try to do so.

Mr. Davis. I was in local government for 15 years, and every
land use decision, whether you put a drive-in at a bank or at a
McDonald’s, is perceived in the marketplace and among property
owners as having ramifications on the sale price and value of those
properties.

Ms. JEFFERS. Very definitely.

Mr. Davis. You are saying this is no different. In fact, I think
you have all cited some specific examples.

Greg, did you want to add to that?

Mr. FAZAKERLEY. Mr. Chairman, one of the things that I said in
my testimony was that so much of the information is anecdotal. I
think we have a perfect situation that we in the development busi-
ness never like to see, and that is uncertainty. Uncertainty is the
worst of all worlds.

I think what I heard from a lot of the businesses was, uncer-
tainty without participation, without participation in what we can
do to look at, more factually, what are the real impacts, one; and
two, what we do in our business all the time, when we look at the
impacts and the potential of new development, street closings,
doing a development of this size versus that size, we want to ana-
lyze the facts as best we can know them, and then we ask the ques-
tion that we all should ask about this: What can we do to mitigate
these impacts?

You know, we’ve been talking today about the closure of Penn-
sylvania Avenue, and all of us get focused, for the moment, on that
avenue that runs in front of the White House. But there are a lot


16

IN CLOSING, WE IN THE DISTRICT GOVERNMENT ARE ALSO
CONCERNED ABOUT THE LONG-TERM AND PROPOSED
ARCHITECTURAL CHANGES FOR THE PENNSYLVANIA AVENUE
AND E STREET AREA. IF THE FEDERAL GOVERNMENT DECIDES
TO MAKE THE CLOSURE PERMANENT, IT SHOULD REQUEST A
FORMAL CLOSING. THIS PROCESS, WHEN COMPLETED, WILL
RESULT IN FREEING THE DISTRICT OF ANY MAINTENANCE
RESPONSIBILITIES FOR THESE STREETS. IF ARCHITECTURAL
CHANGES ARE EXPECTED PRIOR TO THE FORMAL CLOSURES
AND CHANGE OF JURISDICTION, THE DISTRICT OF COLUMBIA
WOULD EXPECT TO PARTICIPATE IN EVALUATIONS OF SUCH
STUDIES.

I APPRECIATE THE OPPORTUNITY TO TESTIFY BEFORE YOU
TODAY-I WILL BE HAPPY TO ANSWER ANY QUESTIONS YOU

MAY HAVE.


99

fwestbound. In either event (Pennsylvania Avenue open or
iclosed), it is likely that some of the traffic that now
moves south on 17th Street would instead take 19th

Street at Dupont Circle. The section of 19th Street
between Dupont Circle and M Street is already congested
and it has little, if any, excess capacity.
In conclusion, it appears that either Pennsylvania
Avenue or H Street - but not both - could feasibly
be closed. Constitution Avenue, E Street, and 15th

Street should not be closed. The closure of 17th Street
is feasible, but not recommended.

ROBERT L MORRIG. INC. mJ


21

committee's report and proposed resolution (attachment | of the committee's report)
are attached with this testimony.

Let me say at the outset that the Council, like all people of good will, is deeply
concerned about the President's security and would not want in any way to impede
appropriate efforts within the law to improve security for the President of the United
States. I do, however, want to address some issues deserving of further attention.
Through the public hearing, we wanted to explore the implications of this restriction,
not only on costs for the city and revenues foregone--about which you will be hearing
further from the city's administration and from the Council Chairman--but on other
issues as well. We reviewed the "restriction" as it relates to future planning, local
businesses, and the preservation of the integrity of what I call the President's plan for
Washington (namely the early plans generated and approved by the Congress of the
United States under the sponsorship of George Washington). We put together
evidence about jurisdiction. I do not intend to dwell on all these points but rather to
summarize a few of them, and to urge you to review the committee's report for a more

thorough treatment of these and other issues.

A major issue is that of jurisdiction of the various streets affected by the

Treasury Department's "restriction". It is the view of the committee, based on law

3


50

No one I've talked to is attempting to second guess the decision that closing Pennsylvania Avenue
‘was necessary to properly protect the President...

The essential point, I feel, is that the closing and its impact dramatically illustrate the close and
unique relationship that exists between the federal government and the District of Columbia...

‘Actions taken by the federal government can and do have a direct effect on the daily lives of the
residents of this city...

It is a relationship that very clearly calls for communication, coordination and collaboration...
Tunderstand that security considerations dictated that the closing of Pennsylvania Avenue be done
promptly — that public study of the issue before the fact might, indeed give rise to the kind of
action the closing was intended to avert...

Nevertheless, such public study is necessary, albeit after the fact, to formulate a response that
minimizes the negative impacts of the closing...
T also understand such a study is to be commissioned by the Federal Highway Administration...

Thope that is, in fact, the case — we need 4 professional economic impact study and a sound,
fong-term traffic plan...

My own experience strongly suggests that both the federal and city governments should
participate in defining the scope of the study and in the review of its findings and
recommendations...

T would also urge both governments to solicit the close participation of the business community in
conducting the study...

Accordingly, the DC Building Industry Association is prepared to volunteer the experience and
expertise of its members...

This is not only an opportunity to address a particular problem ~ to mitigate the long-term
consequences of the closing of Pennsylvania Averue..

It is also a larger opportunity to demonstrate that the federal government, the city and the
‘Washington business community can work together — and with that collaboration, we can better
address other problems arising out of our unique relationship...


95

Investigation into the Feasibility
of Closing Streets in the Vicinity of

The White House

15 May 1995

ROBERT L. MORRIS, INC.
CONSULTANT IN TRAFFIC AND TRANSPORTATION

I. P.0. Box 34230, BeTHESoA MARLAND 20827-4230 £301) 299-6632,


33

Mr. McHucu [presiding]. Thank you, Mr. Clarke.

To state the obvious, the chairman has left to go cast his vote,
as was indicated with the two-bell signal, the idea being to try to
keep the hearing in session and proceed, and not take more of your
valuable time than is absolutely necessary.

Mr. CLarkE. If I could have another second of your time.

Mr. McHucu. Absolutely, sir.

Mr. CLARKE. I just read you my prepared testimony. I had writ-
ten it a couple days ago and sent it up here yesterday. I learned
today that something that was discussed in my office within 72
hours of the closure, when the Under Secretary of the Department
of the Treasury came to my office, the Director of the Highway Pro-
gram of the Federal Government came to my office, the Director of
the Secret Service came to my office, and it was said to us clearly,
although we were not advised of this until about 17 hours before
the closure, that the Federal Government was willing and able to
address the impact of it.

During that discussion, it was said by the highway director that
one possibility would be the problem that we were having during
our Fnancial crisis with making about a $16-million match on the
highway funds. Not too long after that meeting, we were pleased
to see that it was announced by the highway director and by Mayor
Barry that that match would be excused, if you will, the result
being that we could go ahead with $82 million worth of road pro-
grams in the District of Columbia and $90 million worth of pro-
grams next year.

In the middle of all the crisis that we have, that was welcome,
very welcome. And I quipped that it took the closure of Pennsylva-
nia Avenue to cause that to happen. But now it appears that that
might not really happen. It appears that it might not really happen
by a decision within or maybe of the Congress of the United States.

The people of the District of Columbia just can’t take it anymore.
I mean, our people are moving slowly to work. It is very difficult
for any of our people who work in the downtown area to get to
work. It is very difficult for all of our people to go home every day.
We understand that. We want to defend the safety of the President
of the United States. But we can’t be expected to not only endure
all that but to pay for the mitigation of that, as well.

So I have to come with a very strong word in addition to what
I have written, and that strong word is, the Federal Government
just can’t keep doing it to us. "They have done it to us with the pen-
sions. They have legislated pensions that we have to pay now over
$300 million a year for, a $5.3-billion unfunded liability for. They
have impacted our tax base, in terms of the income tax.

I am not going to take this occasion to go into the commuter tax
issue, but they haven’t addressed any alternatives for regional fi-
nancing of the core—they put upon us, and we agreed to it being

ut upon us—State functions. But now that we recognize that the

‘ederal Government is sort of the state and we are sort of the city,
there are no approaches to assuming those State functions.

They have said that we need some discipline, which we do, in
terms of the administration, the expenditure of what we have, and
we are cooperating with that. But then, wham, there goes $82 mil-
lion; next year, $90 million—wham, wham—because the Federal


183

3
We stand ready to work with this subcommittee and Mayor Barry’s administration

as well as with all other interested parties on this very important matter. Please don't
hesitate to contact me if we can be of further assistance.

Lawreace B.


17

Mr. Davis. Thank you very much.

Councilman Frank Smith. It’s good to have you here today.
Thank you.

Mr. SmitH. Thank you, Chairman Davis, and to my own Con-
gresswoman, Ms. Norton, Mr. McHugh, and other Members of the
Congress.

I am pleased to be here today on behalf of the council and our
government. As you already indicated, Chairman Clarke is holding
a hearing on the arena tax this morning. He is, hopefully, wrap-
ping that up soon enough to get here today. But he did ask me to
convey to you his reason for being late.

It is a pleasure to testify today on the recent “temporary restric-
tion of vehicular traffic access” on Pennsylvania Avenue and near-
by streets, which, as I will explain shortly, is the preferred charac-
terization of this action on the part of the Treasury Department.

In addition to responsibility in the area of housing, planning, and
zoning, the Council Committee on Housing and Urban Affairs, the
committee which I chair, is responsible for street and alley closing
legislation that comes before the council.

On May 26, less than a week after the Treasury Department’s
restrictions, our committee held a roundtable. On June 22, the
committee marked up its report and a proposed resolution. The res-
olution was introduced originally by myself and by Chairman
Clarke, and we expect that it will come before the full council on
July 11 for markup at our next session. The committee report and
proposed resolution are attached to my testimony.

Let me say at the outset that the council, like all people of good-
will, is deeply concerned about the President’s security and would
not want in any way to impede the appropriate efforts, within the
law, to improve security for the President of the United States. I
do, however, want to address some issues deserving of our further
attention.

Through the public hearing, we wanted to explore the implica-
tions of this restriction, not only on costs for the city and revenues
foregone, about which you will be hearing further from other people
in the city, but on other issues, as well.

We reviewed the restrictions as they related to future planning,
local businesses, and the preservation of the integrity of what I call
the President’s plan for Washington; namely, the early plans gen-
erated and approved by the Congress of the United States under
the sponsorship of President George Washington.

We put together evidence about the jurisdiction, and I don’t in-
tend to dwell on all of the points about that, except I want to sum-
marize a few of them. A major issue is the jurisdiction of the var-
ious streets affected by the Treasury Department's closure. It is the
view of the committee, based on the law and evidence submitted
at the hearing and in the report, that the District has jurisdiction,
as distinguished from ownership, over much of the area entailed by
the Treasury Department's vehicular restriction.

By reference to the report, you will find that the city’s jurisdic-
tion rests on two pillars. The first of these pillars has to do with
the city’s charter of 1802 and whether Pennsylvania Avenue be-
tween 15th Street and 17th Street, Northwest, along with other


61

CONCERNING THE COST IMPACT ON METROBUS OF THE CLOSING
OF PENNSYLVANIA AVENUE, METRO HAS INCURRED
APPROXIMATELY $40,000 TO $50,000 IN ADDITIONAL ONE TIME
COSTS IN ORDER TO IMPLEMENT THE ROUTE CHANGES THAT WERE
MADE ON MAY 20 AND JUNE 25, 1995. THIS ONE TIME INCREASE

IN OPERATING COSTS WAS FOR THE STAFF TIME AND RESOURCES _
REQUIRED TO PROCESS AND IMPLEMENT THE ROUTE CHANGES,
MOVE AND RELOCATE BUS STOPS, INFORM RIDERS, AND PRINT
NEW TIMETABLES.

WITH REGARD TO THE ONGOING COSTS RELATED TO THE ACTUAL
OPERATION OF THE BUSES, WE BELIEVE THAT THE ONGOING
ANNUAL OPERATING COSTS OF THE NEW BUS ROUTES WILL
INCREASE BY APPROXIMATELY $30,000 OVER THE CURRENT
ANNUAL COSTS. THIS IS BASED ON THE ASSUMPTION THAT THE
NEW STREET PATTERN WILL IMPROVE CURRENT TRAFFIC
CONGESTION IN THE AREA, THAT METROBUSES OPERATING IN THE
AFFECTED AREA WILL EXPERIENCE A REDUCTION IN CURRENT
TRAVEL TIME, AND THAT THERE WILL BE NO SIGNIFICANT LOSS IN
BUS RIDERSHIP DUE TO THE REROUTING.

| WANT TO STRESS, HOWEVER, THAT THIS PROJECTED COST
IMPACT IS ENTIRELY DEPENDENT ON THE RESULTS OF THE NEW
STREET PATTERN THAT HAS NOT BEEN FULLY EVALUATED SINCE IT
HAS BEEN IN PLACE FOR LESS THAN A WEEK. IF THE NEW STREET

5


130

this resolution upon its adoption to the President of the United States, the Mayor of the District
of Columbia, the District of Columbia Delegate to the United States Congress, the chairpersons
of the committees of the United States Congress with oversight and budgetary jurisdiction over
the District of Columbia, the Chair of the District of Columbia Financial Responsibility and
Management Assistance Authority, the Secretary of the United States Department of the
‘Treasury, the Secretary of the United States General Services Administration, the Secretary of the
United States Department of Transportation, the Secretary of the United States Department of the
Interior, the Chairman of the National Capital Planning Commission, the City Administrator, the
Assistant City Administrator for Economic Development. the Director of the District of
Columbia Department of Publie Works, and the Director of the District of Columbia Office of
Planning,

Sec. $. This resolution shall take effect immediately upon the first date of publication in
the either the District of Columbia Register. the District of Columbia Statutes-at-Large, or the

District of Columbia Municipal Regulations.


114

authonty to take unilateral action in closing streets within the National Capital Service Area
in an effort to protect the President?

2. Admimstrative Procedure Act

You have also raised the issue of whether the Secretary's action would constitute a
“rule” as defined by the Administrative Procedure Act ("APA"). 5 U.S.C. §§ 551-559, at §
551(4), thereby triggering the requirement to provide "interested persons” with notice and
opportunity to comment as a part of the rulemaking process. We believe that the Secretary
could successfully argue that the notice and comment requirements of the APA do not apply
because his action in closing the streets at issue to provide protection for the President is not
a "nile" within the meaning of section 551(4). Moreover. if the federal government owns
the streets in question, any action to close them would be exempt from the APA pursuant to
the “public property” exception in 5 U.S.C. § 553(a)(2)

The APA defines “rulemaking” as "agency process for formulating. amending, or
repealing a rule.“ 3 U.S.C. § $51(5). In defiming a “rule”, the APA identifies several
components. a rule may be “of general or particular applicability”; it must be of “future
effect”, and must be “designed to implement, interpret, er presenbe law or policy” or must
“describe[] the organization, procedure. or practice requirements of an agency." Id, at §
55144),

We do not believe that closing the affected streets in order to protect the President is
the sont of action that Congress intended to be subject to the APA’s notice and comment
process. A decision to close the streets would not be designed to “implement, interpret, or
prescribe law’ or policy" so as to provide guidelines or procedures for parties to follow in the
iuture. To the contrary, the Secretary's action in closing the streets would be an isolated
agency action that does not affect or govern subsequent agency acts or decisions.
Daingerfield Island Protective Society v. Babbitt, 823 F. Supp. 950, 957 (D.D.C. 1993)
(National Park Service approval of design for interchange connecting George Washington
Memonat Parkway and island in Potomac River was not a “rule” under 5 U.S.C. § 551(4))
The Secretary would be acting in a particular situation based on a umique set of facts,
pursuant to @ statute authorizing his agency personnel. the Secret Service. to protect the
President. We do not believe that this unilateral action executing such a decision is the sort

We are aware of only one District of Columbia cour decision discussing the National Capital Service
Area. The limited analysis presented in that opinion supports our view that the federal government exercises
greater administrative authority over areas within the National Capital Service Area than it exercises with
respect to other areas within the District of Columbia. In rejecting a claim that Congress had not delegated to
the District of Columbia the authority 0 tax personal property within the National Capital Service Area. the
court in Kel Corp_v. District of Columbia, 448 A 2d 261, 267 0.10 (DC), cert denied. 459 US. 1087
(1982), stated. “this part of the Home Rule Act serves 10 add some federst bureaucracy to the existing D.C
bureaucracy in onder to ensure adequate services, not to authorize the provision of services by the District

-10


116

of Histone Places and is therefore one of the sites covered by section 1Ub. National Register
of Historic Places Inventory. Nomination Form for Lafayette Square Historic District

Whether the NHPA’s consultation process for certain historic sites (section 106
process). 36 C.F.R. §§ 800.3-800.5, is triggered depends on whether the agency's action 1s
an “undertaking” under the NHPA. By regulation, the Council has defined the term
“undertaking” as "any project. activity. or program that can result in changes in the character
or use of historic properties, if any such historic properties are located in the area of
potential effects.” 36 C.F.R. § 800.2(0).° (emphasis added). Courts have tended to

construe the definition broadly. Historic Green Springs, Inc, v. Bergland. 487 F. Supp 834
353 (E.D. Va. 1980): National Indian Youth Council v. Andars. 501 F. Supp. 649. 676
(D.N.M. 1980). aff'd, National Indian Youth Council vy. Wart, 664 F 2d 220 (LOth Cir,

1981). And we cannot deny that the Secretary's contemplated action appears to fit within the
definition in section 800 2(0) in that the street closing would make a direct change in the use
of the historic area because will prohibit a significant use currently allowed. that is
vehicular traffic

Even if the contemplated street closing were considered an “undentaking” pursuant to
16 U.S.C. § 4708. however. it is our conclusion that the consultation requirements of the
Council's regulatory scheme do not prohibit the Secretary from taking the necessary and
inmediate action to protect the President of closing to vehicular traffic the aforementioned
streets. The statutory and regulatory framework of the NHPA cannot reasonably be read to
require strict compliance with the consultation requirements in the case of an emergency.

For example, if a water main breaks in an urban historic area, maintenance crews must be
able 0 promptly remedy the situation even if that entails physical destruction of roads and
sidewalks in the historic area and closure to all traffic for an extended penod of time: surely
Congress would not expect consultation before the maintenance work commenced. Similarly
if 2 crime is committed in an historic area or in an histonc building, law enforcement
officials would be able to secure the area if necessary to apprehend the perpetrators. preserve
evidence. and take necessary and reasonable steps to ensure the safety of members of the
public, even if such measures change the use of the historic site by re-routing traffic, setting
up roadblocks. or denying access to buildings and areas. Again, those law enforcement
actions could be handled promptly without compliance with the NHPA consultation
requirements

We do not construe the section 106 process to preclude the Secretary, after having
taklen] into account the effect of the undertaking.” from: authorizing the undertaking to go
forward initially on a provisional basis. with no irreversible effects. and thereafter giving the
Council a reasonable opportunity to comment on it before deciding to put the undertaking on

+ Im addition. “the project. acuvity, of program must be under the dizect or indirect jurisdiction of

Federal agency or livensed or assisted by a Federal agency Undertakings include new and cominuing projects

activilies, ar programs and any of their elements not previously considered under section 106" 36 CFR S
300.210

-2-


4

Norton, as well, for her continuing concerns in relation to the very
special place in this country that she has the honor of representing.

This is, as Chairman Clinger just noted, a very important situa-
tion, one that affects not just the residents of the District of Colum-
bia, although certainly it does affect them in very real and palpable
ways, but every American citizen. And I think it is extremely im-
portant that we begin to take a very careful look at this process
and ensure that whatever may happen in the future is in the best
interest of every concerned party.

Last, let me say my words of welcome to the distinguished panel
members who have come here today to share their insights and
perspectives with us.

Thank you, Mr. Chairman.

Mr. Davis. Thank you very much, Mr. McHugh.

T am now pleased to introduce and welcome our distinguished
witnesses. I am advised that District Council Chairman Dave
Clarke, who is listed on our first panel, is en route from a hearing
he has been chairing about the arena project. I will certainly enter-
tain Chairman Clarke’s testimony upon his arrival.

Our two other representatives of the District government are
present: Mr. Michael Rogers, the city administrator; and Council-
man Frank Smith, Jr., who chairs the relevant council committee.
Mr. Rogers will testify as a representative of the Barry administra-
tion, and he will be accompanied by Mr. Larry King, director of
public works for the District of Columbia.

Gentlemen, as you know, it is the policy of this committee that
all witnesses be sworn in before they may testify. Would you each
please rise with me and raise your right hand.

{Witnesses sworn.]

Mr. Davis. You may be seated.

The subcommittee will carefully review any written statements
you care to submit. I respectfully ask that oral testimony be limited
to 5 minutes each. At this time, I am going to ask Mr. Rogers for
his statement, followed by Councilman Smith. Thank you.

STATEMENTS OF MICHAEL C. ROGERS, CITY ADMINISTRATOR
AND DEPUTY MAYOR FOR OPERATIONS, DISTRICT OF CO-
LUMBIA, ACCOMPANIED BY LARRY KING, DIRECTOR OF
PUBLIC WORKS; FRANK SMITH, CHAIRMAN, COMMITTEE ON
HOUSING AND URBAN AFFAIRS, COUNCIL OF THE DISTRICT
OF COLUMBIA; AND DAVID A. CLARKE, CHAIRMAN OF THE
COUNCIL OF THE DISTRICT OF COLUMBIA

Mr. Rocers. Thank you, Mr. Chairman. Good afternoon, Ms.
Norton, Mr. McHugh.

I am Michael Rogers, city administrator of the District of Colum-
bia. Thank you for inviting me to address you regarding the closure
of Pennsylvania Avenue and the impact of this closure on the Dis-
trict of Columbia, its residents, and its business community. For
your information and to give you a frame of reference for these re-
cent events, I would like to recap the activities of the past few
months.

In early April 1995, the District of Columbia Department of Pub-
lic Works and the Metropolitan Police Department became aware
that the Department of the Treasury was considering a closure of


93

rict of Columbia Governmer

Mayor Barry

Mr. Rogers, City Administrator
Chairman Clarke
Councilmember Ray
Councilmember Mason
Councilmember Lightfoot
Councilmember Cropp
Councilmember Smith
Councilmember Evans
Councilmember Patterson
Councilmember Drew Jarvis
Councilmember Thomas
Councilmember Brazil
Councilmember Chavous

Metropolitan Police Department

Chief Thomas

Di ic ial wy

Mr. Larry King
Mr. Gary Burch

Washington Metropolitan Area Transit Authority (WMATA-METRO)

Mr. Lawrence Reuter


38

forth to work every day, but we also have 18 million tourists, and
the White House is a favorite location they come to visit.

Many of them have chosen to do it on tour buses and in their
own automobiles. By driving they could get close enough to see it
and make a photograph. They are going to be unable to do that
now, and that traffic now is going to mix up with this traffic cir-
culating around the White House.

That may be a reason there to think about some continued Fed-
eral involvement, if for no other reason than to move the tourist
traffic along, as it mixes up with commuting traffic which now
must use the one-way streets that have been designed primarily for
the purpose of moving the commuter traffic, people who are moving
back and forth to their places of work and home.

So that is something that we have to look at. I might add that
tourists now will have to disembark from their automobiles and
walk to get a view of the White House so they can make that pho-
tograph.

Ms. Norton. With no place for their automobiles.

Mr. SMITH. And there’s no place for that automobile to park. So
that’s something that I think the Federal Government and our
local government ought to work together on, to try to find a way
to offer some relief to the rest of America, for whom this is a des-
tination—and not only the rest of America, I guess the rest of the
world, too, which comes here to visit to Washington.

And these visitors wouldn’t want to leave this city without get-
ting a glimpse of the White House and one photograph of them
standing close enough so they can say they have been here. They
ought to have an opportunity to do that, and I think we ought to
try to make it convenient for them to do that.

So that’s a major issue for us, and it’s something that we do have
to work out as we go through this. That is a major consideration
for this committee and also for our government.

Ms. NorTon. One wonders, again—it seems to me that we ought
to simply let our minds float on all the options and possibilities, as
they were not allowed to do beforehand, apparently for security
reasons.

But, for example, are there any security reasons why tour buses
shouldn't be allowed to go in the area? I mean, assuming that the
same person comes every day, and you have his ID, and since you
can open the area and let some people through, why should the 20
million tourists be punished, if there is an alternative that is via-

ie?

Do you all know of any security reasons why, perhaps, a tour bus
should be kept out of the area, or for other reasons other than se-
curity?

Mr Rocers. I think, Congressmember, I will leave that to the
determination of the Secret Service and the Treasury people.

Ms. Norton. Well, see, that’s just the problem. If we leave it to
the Secret Service, that’s how we got where we are.

Mr. Rocers. I understand that, but, you know, we did have a
briefing. There are some issues; there are some concerns.

Ms. Norton. I had a briefing, too, but, frankly, my briefing did
not lead me to believe that tour buses were the problem or were
likely to carry a car bomb or the rest. I mean, I really think the


125

COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, D.C. 20004

June 13, 1995,

The Honorable Tom Davis

Chairman, District of Columbia Subcommittee
Government Reform and Oversight Committee
United States House of Representatives

2157 Raybum House Office Building
Washington, D.C. 20515-6143

Dear Chairman Davis:

Thank you for your letter dated June 8, 1995, requesting my response to the following
questions regarding the Order of the Secretary of the Treasury which closed to vehicular traffic
certain areas adjacent to the White House.

1. To what extent were you or the Council consulted prior to the action that was taken?

I was contacted by Treasury Secretary Rubin by telephone on Friday, May 19, 1995, at 10:15
p.m., which was the night before the closing action.

2, Do you or the Council have a position as to the action that was taken? If'so, what is that
position?

My position is reflected in PR 11-172, the "Pennsylvania Avenue Closure Resolution of 1995,”
which [have co-introduced with Councilmember Frank Smith. Councilmember Smith chairs the
Committee on Housing and Urban Affairs, to which the resolution has been referred for action
because that committeee has legislative jurisdiction over land use issues, including street
closings. Enclosed for your review is a copy of PR 11-172.

Councilmember Smith's committiee held a public roundtable on the Treasury Secretary's Order
on May 26, 1995, and his committee is scheduled to consider PR 11-172 and a draft committee
report on June 22, 1995. A copy of the draft Committee Report is also enclosed. Following
approval by the committee, PR 11-172 would be considered by the full Council at the July 11,
1995 legislative meeting.

3. What consultations have you had since the action was taken?

On Tuesday, May 23, 1995, Ronald K. Noble, Under Secretary of the Treasury Department,


100

DEPARTMENT OF THE TREASURY

May 12, 1998
ER AL COUNSEL

MEMORANDUM FOR SECRETARY RUBIN

& S &.-

Subject: Legal Memorandum of the Secretary's Authority to
Close Pennsylvania Avenue and other Streets Around
the White House Perimeter

Sunmary

This memorandum discusses your legal authority, ender 18 U.S.C.
Section 3056 (“Section 3056"), tc close Pennsylvania Avenue and
other streets adjacent to the White House.

We conclude that Section 3056 provides you with
authority to close these streets provided that
a factual matter, that such closure is necessa
protect the President.

broad legal
ou determine, as
Ln order to

Facts

In response to the September 12, 1994 plane crash on the South
Grounds of the White House, then Secretary Bentsen established
the White House Security Review ("Review") to examine White House
security issues in light of this incident. The Review's scope
was expanded to include a study of additional security issues
raised by the subsequent incidents, including the shooting at the
White House by Francisco Duran.

Among the recommendations made by the Review is to close to
vehicular traffic Pennsylvania Avenue between Madison Place and
17th Street, State Place, and the segment of South Executive
Avenue that connects into State Place. These streets are
contained within the National Capital Service Area, a federal
enclave consisting of the White House and otner federal] buildings
and property. Specifically, the Review concluded that there is
no alternative to prohibiting vehicular traffic on those streets
that would ensure the protection of the President and others in

440 U.S.C. 136 establishes a federal area within the
District of Columbia to include "the principal Federal monuments,
the White House, the Capitol Building, the United States Supreme
Court Building, and Federal executive, legislative and judicial
office buildings located adjacent to the Mall and the Capitol
Building..." and authorizes federal control over police
protection and the maintenance of streets and highways in this
area


AL

Mr. Davis. Dave, I'll tell you what, if it’s that $165,000, that
breaks the $3.254-billion cap; if that’s the difference, I'll go to bat
for you up here. If that’s the only difference we've got, I'm going
to be a happy man.

Mr. CLARKE. It’s $16 million on the matching, the cost of which
to the city—and this I explained while you were gone—is $82 mil-
ion,

Mr. Davis. I missed that. It’s not the subject of this hearing, but
I will address that. I had occasion to talk to the Speaker, Mr. Wolf,
and Ms. Norton about it. As with everything that happens here, it’s
always very, very complicated trying to get anything through con-
cerning the District. Members have diverse views on the District.
You have the same problems with council meetings.

But the waiver is a major priority for us. Hopefully, the District
will not have to reimburse any funds, at least not any time in the
near future. I think we’re going to be successful. I think this is a
temporary setback. So don’t give up on it. You've got a lot of people
here who are working very hard on that and making that a prior-

yi think we will get it taken care of. There are other vehicles, if
we can’t resolve it here. I want to tell you I feel confident that by
the time we're through, you will get that waiver.

Mr. CLARKE. Well, you speak of reimbursement later, and I un-
derstand that’s what they did do in Pennsylvania, but in Penn-
sylvania they didn’t come and take the street in front of the Liberty
Bell and make the Pennsylvanians pay for it. And we’re looking at
the long-range, too, now, as we look at all these financial problems.
That’s why we’re pushing on pensions and everything else, because
there are long-range issues as well as just short-term issues.

So if we say we have to reimburse that later——

Mr. Davis. I understand. Listen, you're preaching to the choir.
One of the reasons we're holding this hearing is to make sure you
understand that we are very strong advocates.

Mr. CLarke. All right.

Mr. Davis. I would say, on the reimbursement issue, that I think
we're going to resolve it favorably. The other issues we will work
on as well. You, of course, have your hands full trying to comply
with some of the other congressional mandates on spending.

I am going to ask Ms. Norton if she is through?

Ms. Norton. I’m through, except I want to say this right here
and now, that the council has, I think, justifiably required private
businesses who do business in this city, paying considerably more
taxes than they would pay if they chose to do business elsewhere,
to pay a quid pro quo; again, justifiably, to get an alley closing.

It is unthinkable that the Federal Government would be allowed
to close down not only a major thoroughfare but a thoroughfare
that is an attraction for revenue for the District, because it is cer-
tainly the major tourist thoroughfare, without paying the same
kind of quid pro quo for that closing as somebody who does busi-
ness and pays taxes has to pay.

It is a virtual taking. It is uncompensated. And I appreciate the
testimony, because it’s on the basis of that testimony and under-
standing your general procedures and practices that it seems to me
now perfectly plain that the District is owed compensation even for