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D.C. Council Chairman Gray must lower or move fence at center of permit dispute

By Ann E. Marimow
Friday, May 28, 2010; B01

D.C. Council Chairman Vincent C. Gray must lower or move the black aluminum fence that surrounds his Hillcrest home, a city committee ruled Thursday, one week after neighborhood leaders had given it their blessing.

In less than 30 minutes, the Public Space Committee determined that there was no compelling justification to allow Gray's fence, which is 5 feet 7 inches tall, to exceed the District's height limit on fences built in a public right of way.

Granting exceptions to the limit, committee chairman Karina Ricks said, "sets precedent," and the panel strives to "hold very consistent, despite sympathies we might feel for property owners."

The decision by the obscure but powerful committee was the latest twist in the five-months-and-counting fence saga that has become part of the mayoral race. Gray, who is challenging Mayor Adrian M. Fenty in the Democratic primary, put up the fence two years ago without a permit. His rival technically oversees the committee that Gray was seeking approval from Thursday.

Fenty has not publicly discussed the fence, but city Attorney General Peter Nickles has said he has monitored the process to ensure that Gray is treated like any other resident. It is not uncommon, Ricks said, for homeowners to be unaware of such permit requirements, but Nickles has said Gray should have known.

Gray, who has been in budget talks this week, did not appear at the hearing and was identified only as the "homeowner." He was represented by former attorney general Robert J. Spagnoletti, who said he was "very surprised" by the committee's decision.

"Given the political dynamics, I'll consult with Mr. Gray and we'll determine how to move forward," he said. "It appears the committee had made up its mind before we walked in."

Last week, Gray's Advisory Neighborhood Commission was given an opportunity by the Department of Transportation to comment on the fence and voted not to oppose it, which Ricks said was different from advocating in its favor.

Technically, the committee granted approval Thursday contingent on the changes to Gray's fence, but Ricks said that with those conditions, "in essence, it was denied." Committee decisions are final, according to panel documents.

To meet the city's 3 1/2 -foot height limit, Gray would have to lower the fence by at least two feet or move it back from the property line. Cutting down or digging up an aluminum fence is possible but tricky, industry experts said, and the price of labor might make it prohibitive.

The Public Space Committee was established in 1939 to protect the character of neighborhoods by encouraging natural light and broad views in public spaces, which include sidewalks and landscaped areas. The five members, primarily agency officials overseen by Fenty, also regulate permits for installations such as sidewalk seating, benches and public art.

Ricks pressed Spagnoletti to explain why Gray was seeking an exception to the height limit. Initially, he said Gray was upgrading from a chain-link fence of similar height to enhance a landscaping project, which Ricks said "was not a justification."

When asked a second time, Spagnoletti said Gray also had safety concerns that he hoped the tall fence would mitigate. The council chairman's home was burglarized in May 2008 while he was asleep.

"We strenuously resist using public space to satisfy those security objectives," Ricks said. "We don't want to see barricades all around the city that dramatically change the character of the city."

Gray's path to getting a permit began in December, when the Department of Consumer and Regulatory Affairs took notice of reports in the Washington Times that described the fence and raised questions about his relationship with real estate developer W. Christopher Smith Jr. Gray had hired Smith's company, which has partnered with the city on projects voted on by the council, to explore home renovations and oversee minor repairs.

Gray said he assumed that his contractor on the fence project would file the necessary permit paperwork. Instead, two years after the fence was installed, it would take months of e-mail exchanges and meetings between city officials and Gray's representatives to complete the application.

As Gray sought to finalize the permit, DDOT began issuing a series of eight fines totaling $2,400. Gray has appealed the citations, asking the Office of Administrative Hearings to remove them because he was engaged in "good-faith negotiations," Spagnoletti said.

Gray will pay the fines, Spagnoletti said, if the hearings office concludes they are "appropriate."

But, he said, "if you start fining everyone who is working in good faith with DDOT, you will scare away everyone from working with the city."

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