D.C. mayor, opponent at odds over fence issue

By Ann E. Marimow
Washington Post Staff Writer
Monday, May 24, 2010; B01

The black aluminum fence at the busy intersection of Branch Avenue and Erie Street in Southeast Washington stands just over five feet tall at its highest point. But the square posts and pointed finials have taken on outsized importance in the District's Democratic primary contest for mayor.

The owner, D.C. Council Chairman Vincent C. Gray, put up the fence two years ago without a permit. The man who oversees the committee that will decide this week whether the fence stays or goes is his chief rival, Mayor Adrian M. Fenty.

How the fence became part of the public debate in the mayoral campaign involves the District's current and former attorneys general, the mayor's self-appointed lieutenant, two city agencies, the Office of Campaign Finance -- and a measuring tape.

To Gray, the five-month ordeal illustrates petty politics and a slow-moving city bureaucracy he says he wants to change. Gray, who hired the city's former top lawyer, Robert J. Spagnoletti, in the case, blames the mayor's allies for tipping off the media to his home improvements and wonders whether he has gotten the runaround from government agencies.

"I'd like to think it's not deliberate, but it's hard not to think that," Gray said of how his case has been handled. "It's not very efficient, and as mayor I'm going to take care of it."

To Fenty loyalists, the fence represents a troubling example of his rival not playing by the rules and of cronyism. Attorney General Peter Nickles is keeping close tabs on the fence, trying to ensure, he said, that the chairman's case is handled like that of any other resident.

"It's awfully easy to minimize this matter by saying, 'This is just a fence permit,' " Nickles said. "What's important in terms of public confidence is that public officials are treated the same as ordinary citizens."

The fate of Gray's $12,600 fence is technically in Fenty's hands. District rules allow fences taller than 3 1/2 feet on the public right of way only "when specifically approved by the mayor" in the form of the Public Space Committee. The five-member panel, composed primarily of agency officials, is scheduled to discuss Gray's fence Thursday.

History of dispute

In spring 2008, Gray decided to take on a landscaping project for his corner lot in the Hillcrest neighborhood. His contractor, Pete Schultz of Eastern Grounds Maintenance, suggested that Gray's rusted chain-link fence would detract from plans for lush sod and Chinese maples. Gray agreed, selected a fence and turned the project over to Schultz, who Gray said he assumed would obtain the required permits.

In November, the Washington Times began running articles that raised questions about Gray's relationship with real estate developer W. Christopher Smith Jr., whose company, WCS Construction, Gray had hired to explore a separate home-renovation project and to oversee work last summer that included the installation of an electrical outlet and floodlights.

The relationship caught the attention of the Office of Campaign Finance, which investigated whether Gray had used his position as council chairman for financial gain by working with Smith, who has partnered with the city on public-private projects voted on by the council.

The investigation found "no evidence to suggest" that Gray's "official actions, judgment or vote would be influenced by WCS in exchange for work performed at his home" because Gray had paid market rate, if not more. Gray received an invoice from Smith's company Oct. 30 and paid the $10,000 bill Nov. 15, three days before the Times article appeared.

Gray, who knew Smith professionally before he was elected to the council, said he "never asked him for anything. This was a business relationship." In the future, though, Gray said, he would "avoid doing business with anyone connected with the city. It's a nightmare."

Officials with the Department of Consumer and Regulatory Affairs also took notice because Gray did not have permits on file for the electrical work or for the fence.

Spagnoletti said Schultz, Gray's landscaper, should have initially filed for a permit and then moved more quickly once alerted by the regulatory affairs department. But he pointed to a series of e-mails and letters between his office and city officials that show a breakdown in communication that Spagnoletti said made it difficult for Gray to quickly comply.

In late January and February, messages show Schultz meeting with the regulatory affairs department when he was told that Gray's fence was in the public right of way and required separate approval from the Transportation Department.

In March, one regulatory affairs inspector visited Gray's property and found the fence was "not on public space." The inspector's supervisor later wrote, "It can not be determined" whether the fence is on private property or public space.

A hybrid

In the final analysis, Karina Ricks, chairwoman of the Public Space Committee, said the fence's location is something of a hybrid -- on private property but within the building restriction line, meaning that it is governed by public space regulations.

"Confused yet? You can see how the applicants are," Ricks said. "It's really not intuitive, which is why we exercise a fair amount of patience."

As of March 11, Gray's attorneys thought they had checked off all the to-dos. But DDOT wrote to Gray three times in March to say that the agency was poised to impose $300-a-day fines until a complete application was filed.

On March 29, one of Gray's attorney's responded: "Clearly there has been some internal miscommunication. . . . It is absolutely untrue that he has not responded to your letter. . . . We hand delivered all the outstanding materials."

DDOT's system inspections chief, Lamont Regester, replied: "This agency has never received a proper submission. We subsequently determined that the application was misdirected to [DCRA]. However, DDOT can assume no responsibility for this mistake."

On April 13, DDOT began deploying inspectors armed with measuring tapes and cameras to Gray's home to issue $2,400 in fines. The application was deemed complete April 19.

The mayor has not publicly spoken about his rival's fence troubles. But Gray accused Fenty ally Ron Moten of shopping the story to reporters. "He's bragged about it," Gray said. "I think everybody knows."

Moten, whose nonprofit group Peaceoholics lost funding when the council cut off government earmarks last year, did not deny spreading the word. "I find it amazing that he's worried about somebody bragging," Moten said. "He should worry about the facts and whether it's true."

Gray also questioned the involvement of Nickles, who often serves as a spokesman for Fenty.

"Does it seem odd that the AG would be involved in a fence permit?" Gray said. "How many others is he involved in?"

Nickles said he gets involved in city issues big and small when it comes to public confidence in government. He said he is unhappy that it has taken five months for District agencies to resolve the case and is troubled by Gray's response.

"Somebody who's been involved in government all of his adult life has to know when you build something on public space, or at all, you need to have the necessary licenses and permits," Nickles said.

But it's apparently not so unusual. Ricks, of the Public Space Committee, said homeowners often apply for permits after the fact. "People don't necessarily know what's needed. You think of it as your front yard," she said. "I know people want to make a big story out of this, but it's not a big story. It's not uncommon."

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