To: Patrick Smaldore, President, Arlington County Civic Federation

Subject: Report of the Ad Hoc Task Force to Consider the Old Glebe Civic Association Resolution. Final Report Date: 7 December 2004

ATTACHMENT 1: FURTHER DISCUSSION FROM MR. BOSTWICK
ATTACHMENT 2: FURTHER DISCUSSION FROM MR. DEASON

1. The Task Force was called by President Patrick Smaldore of the Arlington County Civic Federation to consider the following resolution (as revised) advanced by the Old Glebe Civic Association.

Proposed Resolution for Consideration of the Civic Federation of Arlington County

Submitted by: Old Glebe Civic Association September 7, 2004 (As revised 11-20-04)

Whereas Arlington County and specifically DPRCR have violated for at least five years and continue to violate Section 31A of the County Zoning Ordinance by allowing a dog park and its amenities to remain in the Fort Ethan Allen Historic District;

Whereas damage has occurred to this site, which is listed on the Virginia and Federal Registers of Historic Places; and has resulted in the loss of turf, shrubs and trees;

Whereas such damage may have been caused by the operation of the dog park;

Whereas the County proposes to relocate the dog park to a site adjacent to residences, a playground, a tot lot and a recreation center, senior center and community center violating Sections 4.2 and 4.9 of DPRCR's Operating Memorandum E.24 of January 1997;

Whereas OM E.24, which was included as part of the "County Wide Dog Exercise Areas Work Group Report" of May 4, 1999, and insofar as we know is the only official county regulation governing procedures and guidelines for dog parks, and reassures and protects the community and neighborhoods from the arbitrary and improper siting of dog parks;

Therefore, be it resolved that the Civic Federation calls on the County to;

a) Immediately and officially determine and state whether or not they are in compliance with these ordinances and regulations;

b) if not in compliance, to provide reasonable and adequate justification as to why the present situation merits an exception; or,

c) to comply with these laws and regulations.

2. The Task Force was composed of:

Rich Samp & Andrew Ness representing Old Glebe Civic Association (OGCA).

Bob Deason (Chain Bridge CA) and Mike Hogan (Old Dominion CA).

Leslie Garrison (Aurora Highlands Civic Association) - Chair

3. Attendees included:

Burt Bostwick, drafter of the resolution and member of OGCA. Maureen Farrell, Madison Dogs

Suzanne Bolton, Environmental Commission and AH Dogs

Judith A. Green, Arlington Dogs

5. The Task Force vote for the resolution to go to the CivFed for consideration is 4 to 1. (On 20 November 2004, the Task Force voted 3 to 1, with the Chair abstaining. Subsequently, the Chair voted to support CivFed consideration.)

6. The consensus of the committee was the delegates of the Civic Federation should consider this resolution and then vote on it, expeditiously. (Chair's Opinion: If the Civic Federation spends any more than 1 hour on this discussion in general session, then it is a waste of time.)

7. Findings of Fact. The first five paragraphs are found to be, as they are stated, factual, to the best that we can ascertain. However, several points of clarification remain:

A. Regarding the first paragraph: Apparently the County Board has the authority to violate its own regulations. This technicality calls into question whether the County Board and DPRCR are actually in violation of Section 31A of the County Zoning Ordinance. (Chair's Note: There may be other technicalities of which we are not aware which render the County not in violation.) Nonetheless, to the best that we can determine, the County is in violation of the Zoning Code.

B. The second and third paragraphs of the resolution recognize that damages have occurred and may be due to the operation of the Community Canine Area (CCA). However, the Task Force could not make a Finding of Fact that the damages were or were not caused by the CCA. Although an expert witness and a letter from the National Park Service claimed that the damage was definitely caused by the dog park, the Committee was split 50/50 (Chair silent) on whether that evidence was conclusive.

C. The fourth & fifth paragraphs pertain to DPRCR OM E.24 of January 1997. The establishment of a CCA in the areas as approved by the County Board, violate E.24. However, the question as to whether E.24 is in effect or whether it has authority on which citizens may rely is disputed. The weight of the evidence seems to favor E.24 being in effect, but reasonable people have reasonable disagreement on the subject.

8. The Task Force vote for approval of the resolution by the CivFed is 3 to 2. (On 20 November 2004, the Task Force voted 2 to 2, with the Chair abstaining. Subsequently, the chair voted to support CivFed consideration.)

9. Chair's Recommendations:

A. I recommend that the delegates to the Civic Federation pass this resolution. The County Board should clearly spell out if it is or is not in compliance with its own Zoning Regulations. If it is not in compliance, then it should either spell out why it will not comply or it should adhere to its regulations. There should be no free pass for the County to violate regulations that are binding on everyone else.

B. If the DPRCR OM E.24 is not binding on the County, then it should be made clear to citizens that OMs are internal staff documents that citizens should not rely on. If the OM E.24 is not in effect, then that should be spelled out.

C. Finally, this is an issue that ultimately affects the Rule of Law in the County. Although this may seem a grandiose characterization for something as mundane as a dog park, still the Rule of Law is a principle that the Civ Fed should defend jealously.

D. If the Civic Federation does not pass this resolution solely and entirely for the purpose of reinforcing the Rule of Law in the County, then this resolution should be defeated.

A. In no way does this resolution commit the CivFed to opposition or support of the Community Canine Area (CCA).

B. It has been said that "Hard cases make bad law." It is very possible due to the passionate opinions on both side of this discussion, that this may not be the right vehicle for reinforcing the County's adherence to its own regulations.

C. The unwritten Civic Association principle that no area should have something imposed on it, without its consent, is moot relative to this resolution.

D. CivFed delegates should (briefly) consider whether upholding principle via this resolution will enhance or detract from the credibility of the Federation.

C. Any more than an hour of discussion would be a waste of time.

Leslie C. Garrison
Major USMC Retired

Attachment 1: Further Discussion from Mr. Bostwick From: "Burton L. Bostwick"
Date: Fri, 3 Dec 2004
Subject: Re: Rough Draft

Les,

My comments are as follow:

Re [7A], it might be worth noting that there was no evidence or documentation provided (in spite of several requests to the County Attorney) that the County was NOT in violation of Section 31A of the Zoning Ordinance. In fact, the County's actions (several requests for a COA by DPRCR) demonstrate that they believe they must comply with this ordinance.

Re [7B], we provided expert testimony from Wally Owens, a former employee of Arlington County and presently curator of Ft. Ward in Alexandria, that the operation of the dog park had in fact caused damage to the area. This was supported by a letter from the Department of Interior, National Park Service to the County Manager, that operation of the dog park was causing damage to the site.

Re [7C], no evidence or documentation was provided to show that the County had overruled, rescinded or declared void OM E.24. In fact, several recent communications with the County, which provided ample opportunity for the County to so state if they wished, in fact indicated that the County believes OM E.24 is in effect.

Your evenhandedness and patience in dealing with this controversial subject was much appreciated.

Burt Bostwick

Attachment 2: Further discussion from Mr. Deason
From: "Bob Deason"
Date: Sun, 5 Dec 2004 22:15:18 -0500
Subject: FW: Rough Draft

Re [7A], just because the County Attorney had not responded to Burt's several requests, doesn't mean the County is in violation of Section 31A. The County Attorney represents the County and its staff, and doesn't ordinarily respond directly to individual County citizens. To the best of my knowledge, we do not know if the DPRCR efforts for a COA was even cleared by the County Attorney. We do know that when the issue of the absence of a COA was raised, DPRCR decided to see if the issue could be settled informally by seeking a COA. In my opinion that in itself does not constitute the County's admission that Section 31A is applicable or that the County doesn't have the right to make exceptions to its zoning ordinances.

Re [7B], you are right on! As discussed at the AD Hoc Committee meetings, the deterioration of the site is caused by many factors, and it should not be assumed that the deterioration is solely or primarily because there is a CCA located there.

Re [7C], again you are correct and whether it is or isn't in effect, it is an operation memorandum which is a guideline not a law. Exceptions are commonly made to such documents if believed to be merited and justifiable. Also, I believe the OM was attached to the Countywide Report only because it was an attachment to the Utah Park Pilot Project and its inclusion in that report by no means indicates it is an active governing document.

Enough said! I certainly look forward to our having a new CCA, turning the existing site into a self-guided historic experience--if that is what the County wants, and getting on with life.

Bob

This page was last revised on: December 23, 2004.