When wreckers tore down the old, Art Deco-style Apex Theater recently, the residents of the surrounding Spring Valley neighborhood could see they were losing the battle of the alley.
The alley in contention runs behind the movie theater site and a bank, grocery store, drug store and several other small shops - all of which front on Massachusetts Avenue between 48th and 49th Streets NW. The owners of the land under those old buildings, attorney Fred Burka and his son, David, want to build a complex of new shops and offices there.
That's where the alley comes in. Under the city's complicated zoning regulations, the Burkas would have been allowed to build something only slightly more than two stories tall on property that size.
But the Burkas also own a parking lot behind the alley. if they were allowed to count the alley and parking lot as part of the property to be developed - even though they do not intend to build anything on the alley or the parking lot - the Burkas could build a six-storey complex, with three additional floors underground for parking.
So, four years ago, the Burkas successfully petitioned the Committee on Transportation and Environment of the then appointed D. C. City Council to have the alley "closed," which actually means transferring the alley's ownership from the city to the Burkas.
Alley closing is a seemingly trifling government action that the Council Committee performs often. Most alleys closed by the Committee remain physically unchanged and can still be used by traffic. But by transferring ownership of an alley to a big developer, the Committee can help to drastically increase the size of a building that the developer can construct on adjoining property.
"An alley closing can decide whether a building is worth $1 million or $100,000," according to Councilman John Wilson (D-ward two), whose constituents in the West End and Foggy Bottom neighborhoods have frequently fought alley closings in attempts to stop large-scale real estate developments in their areas.
Thus, the City Council Committee - composed of Jerry A. Moore Jr. (R-at Large), its chairman, Julius Hobson Sr. (S-at large), Nadine Winter (D-ward six), and Douglas E. Moore (D-at large) - has the power to determine developers' profits and help change the character of city neighborhoods.
The committee's importance to developmental interests is such that many of the actual or potential beneficiaries of its actions have contributed generously to chairman Moore's campaigns. Burka, described in campaign contribution records as an investor, gave $500 to Moore's 1976 campaign, and other developers have contributed to him in lesser and greater amounts.
The committee's decision in these cases can be especially profitable for land owners because if the alley or street in question is city-owned (rather than federally owned), the developers are granted the additional space and developemental rights free of charge.
Usually, Moore's committee exercises its authority without much fanfare, and its actions are almost always approved by the full Council as a matter of routine. There have been a few rather celebrated, protracted proceedings in recent years as community groups have sought to block certain alley or street closings they say would have an adverse developmental impact on their neighborhoods.
"It's a monster," says Carol Cidley when she describes the complex thw Burkas want to construct among the one and two-story homes and shops that fominate her Spring Valley community.
Gidley, a member of the Advisory Neighborhood Commission 8E, said most residents of the areas would approve construction of a three-story structure "but anything bigger is incompatible with the neighborhood." She said legal challenges to Burka's project have helped to delay construction.
The American University Park Citizens Association and other neighborhood groups have filed a new suit in D. C. Superior Court seeking to halt the project. The residents have argued that the alley is still be used exactly as it was before the Council closed it and that therefore Burka should not have the right to build a bigger structure unless he gets approval from zoning authorities.
Jack Bindeman, attorney for the Burka project, said "work (on the complex) is proceeding" and that he could not comment on neighborhood criticisms because of pending litigation.
Citizens who have monitored the city's alley and street closing procedures say they worry that the Council and the community are not paying enough attention to the land use problems associated with the practice.
"If we don't start paying closer attention, all of a sudden we're going to wake up and find the whole face of our city has been changed by this piecemeal process that hasn't gone through any zoning authority," said Ann Loicow.
As an ANC member from the West End-Foggy Bottom area, Loicow has helped lead several citizen protests against certain alley and street closings.However, residents have frustrated, but seldom halted, a developer's application.
These community groups have often complained that the committee's actions are taken too hastily without always consulting the affected residents.
Moore acknowledged in a recent interview that community groups have not always been adequately advised of committee deliberations, but he said the problem has been resolved more recently with the establishment of the Advisory Neighborhood Commission.
Lately, however, a new target for citizen concern is Mayor Walter E. Washington's proposal to transfer the major responsibility for scrutinizing alley and street closings from the Council to his office.
Mayoral aides say this change is being sought to deal with certain legal questions that have been raised about the city's alley closing procedures - specifically, whether the Council has the legislative authority to act unilaterally on the applications without the approval of Congress.
Other sources familiar with the issue say Mayor Washington also hopes his office - whito help handle such applications - will be able to speed up what can become a long and very costly process for developers.
Applications for alley or street closings must first be filed with the D. C. surveyor's office which then places public notices in the D. C. Register and The Washington Star and solicits comments from various city agencies, property owners and public utilities that might be affected by the closing.
Only after that procedure has been completed, with no serious objections being raised, is the alley or street closing application sent to Moore's Committee. Unless the closing involves an area less then 10 feet, the committee must hold a public hearing on the action and give 30 days' notice of such a hearing to the local ANC most directly affected.
Moore has served on the Committee since 1989, when he was then a member of the appointed Council. When he successfully sought a seat on the elected City Council in 1974, and when he was re-elected in 1976, more than three-fourths of his campaign contributions came from builders, contractors, bankers, attorneys and real estate developers, many of whom have had alley or street closing requests before his committee. According to election records, he spent about $30,000 in his 1974 campaign and about $25,000 in 1976.
Moore, who frequently presides alone over alley and street closing hearings, said the large number of campaign contributions to him from development interests "has not affected my judgements . . . I have no favorites."
He said he has sworn to follow the law with respect to alley closings "and every fellow (who makes a contribution) takes his own chance."
As for any pressure the developers might try to exert in exchange for a contribution, Moore said he has "never heard from them . . . I'd like to feel they made the contributions because they feel I'm a fair legislator."
Among those who have made campaign contributions to Moore is parking executive and developer Dominic F. Antonelli Jr., who along with some members of his family and company associates gave Moore $1,300 for his 1974 campaign. Before the contribution, according to a former committee aide, Antonelli received favorable committee action on his request to close an alley at 9th and G Streets NW to allow him to build a parking garage across from the National Prtrait Gallery.
Ulysses (Blackie) Auger, a central figure in developemental plans fot the West End, has twice hosted fund-raising parties for Moore at which he has donated food and liquor as well as facilities at one of his reqtaurants.
In two other instances, developers or businessmen who made campaing contributions to Moore had widely different experiences with his committee when they needed its consideration.
About two years ago, developer Bob Carr sought alley closings in the area of 25th Street and Pennsylvania Avenue NW where he plans to locate a 10-storey office-condominium project. Because of several objections from the neighbors affected, the proceedings took abnut a year and a half before Moore's committee finally approved the request last June.
Ann Loicow, the ANC member from that area, has nothing but praise for the way bothe Carr and Moore "bent over backward to let everyone have his say."
The protracted hearing process, according to one former aide to the committee, probably cost Carr more than $2,000 because he, like other developers, had money tied up in the project before he could actually begin construction. Carr did not return a reporter's telephone calls to discuss his alley closing experience.
Carr was also a contibutor to Moore's campaign ($200) but Loicow said this did not prevent Moore from holding special meetings with the developer and the community until mutually satisfactory alternatives to Carr's initial development plans were worked out.
However, not all such alley closing proceedings have happy endings for the community, according to Loicow. Her own neighborhood is still smarting from another alley closing the Council approved last summer just across the street from the Carr project.
That alley closing - behind a block of shops along Pennsylvania Avenue at 25th Street NW - was sought by James H. Moshovitis, John N. Deoudes and John D. Cokinos, property owners in the area who later sold their newly combined lots and increased building space to a hotel developer.
Each of the three property owners has made campaign contributions of $100 or $200 to Moore.
"I think they applied first to close the whole alley but cut back to less than 10 feet toi avoid the hassle of a hearing," said Loicow.
"There was just something very hasty about the whole thing," she recalled, adding her complaint that Moore rushed the alley closing through the Committee and got the action moved up quickly on the full Council's agenda before that body adjourned for its summer recess.
Only Councilman Wilson voted against it.
Like the Burka example, the key factor in this and many other alley closings, Loicow stressed, "is that you're not closing the alley in order to have a abigger space to build on. In this case, they weren't going to actually build on the alley but they wanted to transfer the developmental rights from it so they could build a bigger building in front (along Pennsylvania Avenue)."
Moshovitis, one of the property owners hwo benefited by the alley closing, said the Committee's action involved "a little itty-bitty square that doesn't affect anyone." He did concede, however, that the alley closing was necessary in order to put together a land package for the hotel developer "and get money back from my investment."
Asked why he had made a contribution to Moore, Moshovitis at first refused to answer "a question like that," but then said he was a registered Republican who made contributions to both Republicans and Democrats.
"I give to whoever I like," he said. "These (the Council members) are good guys. Almost all of them are doing a good job."
Loicow however, argues that what Moshovitis and his two assoicates were able to do "is a violation of the spirit of the zoning regulations." She is particularly distressed that the planned construction of a Guest Quarters has forced out a row of tenants and small shop owners in the block.
"People here are upset," she said. "It's visually very pleasant in this block and the neighborhood needed all these places for essential services. Now they're going to be replaced by transient quarters when we already have lots of hotels in this area."
"Others familiar with the slley and street closing controversy, however, quarrel with Loicow's assessment of the problem or at least with what she and other community groups expect of the Council.
Warren Brown, formerly an aide to the committee, and Gregory Swartz, who has the job now, both complain that the COmmittee is being used by citizen groups to fight what should be zoning battles. They say that by law the Council's central concern when confronted with a street or alley closing request is to decide whether the protion affected is useless or unnecessary and whether closing it would be in the public's interest.
"People may not like the planned structure or the traffic impact, but that has nothing to do with the Council's concern," Brown said. "These are zoning issues basically, but the Council is being asked to exercise land use control."
Councilman Wilson, who has been raising questions about alley closing procedures for the past two years, worries that the closings "are done too quickly now" without letting community residents speak to the changes it will have in their neighborhoods.
"The Committee should take the time to make sure an alley closing won't change the quality of life for the community," he said. "The Council's responsibility isn't just a legal question, it's a moral one, too."
What "bothers me more than anything else," Wilson said, "is that I want to know why the city doesn't gey any money" for the often prime real estate it deeds freely over to developers.
Property owners used to be charged the fair market value for alley closings whenever they acquired them, but in 1970 a federal judge ruled such a practice illegal. Now owners of abutting property must pay only for the use of federal alley or street space.
Moore said he thinks "it's a good idea" to charge for the alley and street space, but critics of the chairman say that a bill to change the D.C. Code to require such payment has been languishing in his Committee for some time.
The legislation will be introduced "this year," Moore promised recently. "We're working on it right now, but the Committee probably has the greatest workload on the Council . . . we did more than 150 resolutions last year alone."
In the meantime, Moore said his Committee is waiting to see the outcome of the mayor's proposal to take over what Moore calls the deliverative or hearing process for the alley and street closings.
"The community might not be happy with what the mayor has done." Moore said, adding that his committee might then decide to hold another hearing "and it's possible the process could be lengthened."
There are, according to MOore, "very real problems between the builders and the community, and I've tried to bring the two together. I haven't always succeeded, but I've tried."