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Memorandum on Bill 12-458, the "Omnibus Regulatory Reform Amendment Act of 1997"
January 6, 1997

January 6, 1998


TO: All Councilmembers
FR: Phil Mendelson, Trustee
RE: Bill 12-458, the "Omnibus Regulatory Reform Amendment Act of 1997"
Additional Recommendations

1. Zoning Review Task Force (§ 501): Especially troubling is the pro-developer bias of the proposed membership. Of the eight public members, four are to be nominated by business groups, while the remaining four, explicitly, shall not be "representative of any business or profession concerned with zoning issues." The proposed membership is contrary to the recommendation of Legislative Drafting Task Force appointed by Councilmember Brazil this fall. Zoning reform does not need yet another task force, but if one is to be created, then the restrictions must be deleted and additional representatives must be specified from established land use/planning organizations. Attached is draft legislative language.

2. Street & Alley Closings (§ 404): The bill would require that street and alley closings be approved by resolution rather than legislation. This provision is illegal under the Charter, and ignores the advice of the Legislative Drafting Task Force appointed by Councilmember Brazil this fall. As noted zoning attorney Jacques DePuy opined to the Task Force: "The District ...[Home Rule Act] requires that the D.C. Council ‘use acts for all legislative purposes' and states that ‘(r)esolutions shall be used to express simple determinations, decisions, or directions of the Council of a special or temporary character.' (see §412(a).) Furthermore, the Home Rule Act, as well as the congressional act establishing the financial authority (control board), require that acts of the Council are reviewed by Congress and the financial authority. Based on the foregoing, I do not believe the Council has the authority to adopt this recommendation of BRRC." Attached is a draft amendment.

3. General License Law (Title I): We support the amendment which Councilmember Brazil circulated yesterday to add a new section 102 that would specify that only "subchapter I, sec. 7, paragraphs 1 through 5 (D.C. Code §§ 47-2801-2805) are repealed." Without this change the effect of proposed Title I would be to eliminate various restrictions that are contained in the license law, as we have noted previously.

4. Historic Preservation (§ 403): We recommend that this section be deleted in order to allow for more careful consideration of the implications of: creating a contested case process where there is now a rulemaking process; imposing deadlines that can impede negotiations between developers and preservationists; and establishing barriers to reapplications. We fail to see how creating a quasi-judicial process reduces regulatory burdens, or how permanent bans on reapplications promotes the purposes of the District's highly-regarded landmark law. Attached is a draft amendment.

5. Compliance (Title XII): The bill ignores virtually all of the enforcement reforms recommended by the Business Regulatory Reform Commission. Perplexingly, the committee report accompanying Bill 12-458 cites a number of changes regarding certificates of occupancy, but these are not contained in the bill itself. For instance, the DCRA Office of Compliance has asked for authority to permit the administrative closing of a business operating without a certificate of occupancy. Enhanced enforcement and automatic revocation are critical to regulatory reform. We regret that due to the holidays we have been unable to either draft suggested amendments or obtain draft legislation already prepared by the Executive Branch. Alternatively, the Consumer & Regulatory Affairs Committee should have draft language since it clearly was contemplated in the report.

6. Boards & Commissions (Title III): We are concerned about the implications of sections 302 and 303 and recommend that they be deleted from the bill. These sections unnecessarily inhibit the creation and appointment of commissions or task forces that may have great public benefit and no fiscal impact whatsoever. Section 302's ban on the creation of new commissions, except by legislation would restrict the government's ability to quickly respond to public concerns (for example, a Mayoral commission on the causes of a civil disturbance). Section 303's requirement that all appointments be subject to Council confirmation adds a burden to the bureaucracy that does not now exist. Why, for instance, should the Council have to confirm all members of commissions that are purely advisory to the Mayor? Section 303's additional prescription that Council review be limited to 30 days or else the nomination "shall be deemed confirmed" renders the review process virtually meaningless, but gives Council committee chairs great power to single-handedly assure confirmation of controversial nominees by playing out the clock.

7. Public Comment: Finally, it remains the position of the Committee of 100 that the unusually fast pace for consideration of Bill 12-458 prevents adequate public review and comment, and also is contrary to Committee Chairman Brazil's public promise that there would be "ample time and room for revision."

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