• Nick Cheolas

Great Weight, Advisory Neighborhood Commissions, and You

Unnecessary disclaimer: just my personal thoughts below. Not legal advice, or an official ANC statement, whatever that may be. Take it for what it's worth.

One point for a succint title.

On Friday, the Office of the DC Auditor ("ODCA") released a report, aptly-titled "Are ANCs Given Great Weight?" It's...sort of fascinating. Especially for ANCs and those who really follow local politics, but also for normal people too!

"Great Weight" is an important and misunderstood concept. Despite its "late Friday during a pandemic" release, the ODCA report highlights some key facts about how Great Weight and ANCs operate in DC. And with 40 Commissions and 296 Commissioners across DC, this is a really important issue for local government. I read the report, starting jotting down some thoughts, and those thoughts became this post. Take it for whatever you feel it's worth.

What exactly is "Great Weight"?

As ODCA points out, there's a lot of confusion about this. But here's my working definition:

  1. In certain situations, DC government entities/agencies must provide ANCs with formal notice of "proposed actions." See D.C. Code § 1-309.10 (b) and (c). For example, before approving a "Special Exception" to zoning regulations, the BZA must provide notice to the relevant ANC.

  2. In these situations, ANCs may respond with a recommendation, in writing.

  3. Where an ANC responds to a Notification in writing, the relevant DC agency must (A) acknowledge the ANC's recommendations, and (B) explicitly respond (or "reference") each "issue or concern" raised by the ANC.

It boils down to this: where DC law requires an agency to notify an ANC, an ANC has a chance to respond, and the relevant agency must explicitly address the ANCs "issues and concerns." That's it. Great Weight is an important but pretty limited part of what ANCs do.

What "Great Weight" is not.

First, it does not mean that DC agencies must agree with or defer to ANC recommendations.

Second, it does not mean that everything that happens within a particular ANC must be reviewed and approved by the relevant ANC Commission or Commissioner.

Third, it does not mean that everything an ANC Commission or Commissioner submits to an agency automatically has Great Weight. Great Weight requires that agencies explicitly respond to ANC Concerns in legally-specified situations. It can't be invoked merely by speaking its name. It is not Beetlejuice.

So what did the DC Auditor find?

A couple interesting things, but the most important thing to me (and to some of my ANC colleagues) is that there is rampant confusion about what particular actions require notice to ANCs, and in turn, afford an ANC's recommendation Great Weight. This is a critical concept, because as the DC Office of Attorney General noted (albeit 20 years ago), "The great weight requirement is tied to the statutory notice requirement."

Here's the ODCA conclusion on this point, with which I agree:

Compliance is easier with some agencies than with others. ABRA, for example, should and does provide notice before approving alcoholic beverage licenses. The Office of Zoning provides notice before granting Special Exceptions or Variances. These issues are pretty clear cut.

With other agencies - DDOT in particular, as highlighted in the ODCA report - it's more complicated. Should DDOT provide formal notice - and open a formal comment/response period - before repaving or painting crosswalks? Is this a "final policy decision" with respect to "public improvements"? ¯\_(ツ)_/¯

And the excerpt above is just part of the relevant law! The key "Great Weight" sections of DC Law - D.C. Code § 1-309.10 (b) and (c) - contain 750 words outlining when ANCs should be notified of proposed government actions. I'm not exactly sure what all of that means. ODCA isn't sure. Agencies aren't really sure. I don't think there's a right answer.

Fixing this is probably on the DC Council, as the Auditor notes.

What about the report's conclusion that "ABRA, ZC, and BZA considered ANC recommendations and articulated that decision in writing. However...DDOT did not give ANCs great weight."

I'm a bit confused by the DDOT part (though I can't speak for the experience of other ANCs). Though this will absolutely be interpreted to mean "DDOT ignores ANCs," I'm not sure that's true.

Keep in mind that DDOT can and absolutely should improve their community engagement processes. The Ward-specific DDOT Open Houses and the "Notice of Intent" ("NOI") Wiki are steps in the right direction.

But back to my confusion: remember that Great Weight means when an agency provides notice to an ANC, an ANC has a chance to respond, and the agency must explicitly consider and respond to that response. The back-and-forth between DDOT and ANC 6D over a proposed bike lane on P St. SW is a good example: DDOT said "we want to do this," ANC 6D said "we don't, and here's why," and DDOT said, "we hear you, we're still doing this, and here's why." Paraphrasing, of course.

But the ODCA report doesn't seem to include an example of an instance where DDOT *didn't* do this. ODCA reviewed 15 proposed DDOT actions, found that "notification was provided to the ANC for the 15 cases in which a Notice of Intent (NOI) was required" and that "DDOT did not receive a response from an ANC for any of the sampled cases." More about ANC responses in a moment, but I don't read this report as concluding that, when DDOT receives an ANC response to a formal notice, it ignores that response.

ODCA *does* fault DDOT in two areas: First, confusion about what actions should trigger notice to an ANC (discussed above). And second, ODCA says that DDOT should implement more specific policies and procedures to govern community discussions and responding to ANC input:

This is a smart and reasonable conclusion, and I hope DDOT follows it.

What about the conclusion that "ANCs did not consider the proposed District government action in a meeting, as required by law, in almost half of the cases reviewed"?

I have typed and deleted so many responses to this, I'm going to let the Office of Advisory Neighborhood Commissions (OANC) respond to this one first:

Highlighted so you know it's important.

I agree, and I bet most ANCs in DC agree. Also, "Finite Volunteer Time" is going to be the title of my 700-page ANC memoir once this 13-year term is up.

How about a real world example: OANC is right that the ANC Law references a long list of actions, including "applications for construction, demolition, raze, and public space permits." Indeed, as required by DC Code § 1–309.10(C)(3), DCRA sends a weekly list of these permits and applications, which total about 50 a week across the ANC. It is in nobody's interest for ANCs to be obligated to consider 200+ routine permits every month. Instead, ANCs consider and opine on issues they feel to be worth their (finite, volunteer) time. This is as it should be.

The ODCA report underscores broader problems with DC's ANC system.

The report outlines problems with the way agencies, ANCs, and the Office of ANCs interact. To me, these are symptoms of larger issue: DC's ANC law is a mishmash of unserious, unenforceable provisions, whipping wildly between micromanaging ANCs and leaving them hopelessly unsupported, and with enough inane legislative "TPS Report" requirements to make Bill Lumbergh blush.

For example, Section 1–309.10(m) - a personal favorite - requires Commissioners to "monitor complaints of Commission area residents" and "file comments on same with the appropriate District government entity," legally transforming ANCs into volunteer human complaint hotlines.

Meanwhile, Section 1-309.10(n-1) requires each Commission to publish an annual report (unlike Section 1-309.10(j)(1), which references a separate, optional annual report). Fine. But if the Commission wanted to, say, print and mail or distribute that very report...well we're on our own in effort, logistics, and cost. Want more examples? Poke your nearest Commissioner.

"Great Weight" is a prime example: granting legally-protected power in front of DC agencies, but without the corresponding commitment to make sure it's used effectively. Though the OADC report is a positive step.

What does this mean for ANCs going forward?

Who knows! But here's my two cents: While Great Weight is virtually the essence of ANCs, in reality, it's a rather limited power. But ANCs - both Commissions and Commissioners - can in fact have a significant impact on our neighborhoods and city. In a way, ANCs can "make your own Great Weight." Over the past 16 years months I've been in office, a few things I've learned.

Check email. Sounds simple; is not simple. For reference, over 1,500 emails have hit my inbox since the COVID-19 crisis erupted, covering almost any topic imaginable, hundreds of which instruct me to hurl an absolutely unprocessable volume of information at my constituents. Sprinkled in there are formal notices and constituent questions, and information of varying importance. Managing this is a daunting, time-consuming task.

But email is also a line to virtually every DC employee and elected official, a way to coordinate multi-agency responses, a written record of every issue, and the usual way ANCs receive formal notice triggering Great Weight. It's an extremely critical part of the ANC job - *especially* if the ANC job is not your primary job, and your ANC working hours don't align with DC agency working hours.

"Great Weight" is basically "opposition only." Under the law, "Great Weight" requires DC agencies to explicitly address the "issues and concerns" of an ANC. ANCs usually don't have "issues or concerns" about things they agree with or support. So Great Weight usually (though not always) comes into play when an ANC opposes something. I leave it to you all to decide what this means about why ANCs were created.

An ANC's "Great Weight" recommendation is only as good as its reasons. A small but critical point: an ANC can't just say "we disagree." It has to lay out its "issues and concerns" with a proposed action, because those are entitled to "Great Weight" under the law.

Recognize that the role of ANCs has evolved since the Home Rule Act. Related to the above. Whatever the roles and responsibilities of our ANC predecessors may have been, ANCs now are supplementing a dozen plus meetings a month with hundreds of emails and a half dozen social media Complaint Cannons pointed at them, all amidst a rapidly growing and changing city. A requirement to "monitor complaints" looked mighty different before Facebook, Twitter, and Nextdoor.

Build relationships and leverage them. Maybe the best advice I can offer? Build a relationship and credibility with key individuals at DC agencies, and then leverage those relationships to serve your constituents. This requires an enormous investment of time and effort, and may require biting your tongue and choosing battles wisely. But it will pay off in a good working relationship, returned phone calls and emails, and tangible actions that benefit your constituents. DC agencies have finite resources. Getting those resources directed toward your neighborhood can have an enormous impact, and ANCs are uniquely positioned to do this.

DC needs to give serious thought as to what it wants ANCs to be. Three years and a full term after the ANC Omnibus amendments, the ODCA report underscores the continuing need for DC to figure out what it wants ANCs to be, and act accordingly. It is, frankly, incredible that every single ANC in the city is essentially "on its own" as to A/V services, printing, design, distribution, and accessibility, just to name a few examples. Twelve new requirements on ANCs won't fix this.

The ANC job is both extremely meaningful and extremely demanding. It requires a steady supply of motivated and engaged individuals, with good judgment, willing to endure these demands. That can be a tough system to sustain; it must be adequately supported. The relationship between DC agencies and ANCs features a lot of good people working within a difficult system. And every system is perfectly designed to get the results it gets. Are we happy with those results? The ODCA report suggests an answer; here's to hoping we continue.

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