Photo by philliefan99 on Flickr.
Pennsylvania Avenue is a nationally and historically significant street, and the Commission on Fine Arts works to preserve it. But their input has become an obstacle to bicyclists who want to use the street safely. Does CFA legally have as much authority as they say they do?
DC officials repeatedly say that they don’t have jurisdiction to do what they want on Pennsylvania Avenue because of the CFA. When the Pennsylvania Avenue bike lanes were first proposed in 2010, the Commission on Fine Arts weighed in on every detail, from striping to paint colors and flexposts, all in the name of preserving the street’s aesthetic integrity.
This assertion has been repeated so much that it has become a self-fulfilling prophecy. As a result, the District Department of Transportation’s proposal to install small bike lane separation devices called Zebras along the corridor is already in danger, even before it goes to the CFA September 19th. But CFA’s legal mandate shows what their jurisdiction and scope really is, and it doesn’t include bike lanes.
The creation of the CFA
An act of Congress established the CFA in 1910. It operates under the legal justification of the Shipstead-Luce Act of 1930, which designates certain areas of the District where they have jurisdiction, including Pennsylvania Avenue between the Capitol and the White House, the Capitol and White House grounds, Rock Creek Park, the National Zoo, the National Mall, the Southwest Waterfront, and Fort McNair.
Two pieces of regulation, 45 CFR 2101.1 and 2101.2, define the CFA’s relationship with other levels of government and what they have authority to review. The CFA’s role is to advise and comment on a wide variety of projects, including proposed public, semi-public and private buildings, signage, monuments, statues, parks, medals, insignia, coins, commemorative works, and questions of art that concern the federal government.
The president appoints each CFA member for a 4-year term without compensation. Members typically come from a design-related background, like architecture, landscape architecture, and the fine arts.
It has no regulatory authority, enforcement mechanism or penalty for not implementing their recommendations. Their influence derives from the political process and their collective expertise in their respective fields. Recently, the CFA has gained attention for their review of a controversial memorial for President Eisenhower, designed by architect Frank Gehry.
Does the CFA really have authority over Pennsylvania Avenue?
DDOT first went to the CFA with a design for the Pennsylvania Avenue bike lanes in 2010, but before the paint was even dry, DDOT removed the bike lanes and redesigned them in response to driver complaints. CFA never reviewed the new design. And DDOT did not submit a proposal to the CFA for the portion of the 15th Street cycletrack south of the White House, which is also within the CFA’s jurisdiction.
The agency also maintains miles of streets within the CFA’s jurisdiction, but transportation planners don’t go to the CFA to review intersection improvements, street lighting, or pedestrian crossings. Why should DDOT hold bike lanes on Pennsylvania Avenue to a higher level of scrutiny? After all, this is a transportation and public safety issue, not an architectural issue.
In June, Mayor Gray’s office announced that DDOT would work with the CFA to solve the illegal U-turn problem on Pennsylvania Avenue, after a video of a cab making an illegal U-turn and nearly hitting a cyclist appeared on YouTube.
ABC7 reporter Mike Conneen asked Pedro Ribeiro, Gray’s spokesperson, if DC should just ignore the CFA and solve the problem themselves. “We don’t have the jurisdiction, we can’t do that,” Ribeiro replied. “You can’t break the law. While it may feel good to say ‘sure, just put them in,’ what would happen is we’d have to tear them back out again.”
But according to the Shipstead-Luce Act, DC doesn’t have to consult the CFA. It specifies that “a reasonable degree of control should be exercised over the architecture of private or semipublic buildings adjacent to public buildings and grounds of major importance,” but only gives the CFA jurisdiction over “any building . . . which is to front or abut” Pennsylvania Avenue. This language clearly excludes the curb-to-curb section of the street itself.
And obviously, the bike lanes are not a building, park, monument, or coin of any kind. Under the CFA’s legal mandate, bike lanes along Pennsylvania Avenue are not subject to any CFA review.
There are number of agencies with some authority over Pennsylvania Avenue, but they all oversee separate parts. For instance, the National Park Service has authority over the sidewalk areas. The National Capital Planning Commission has some standing as well, but during a meeting on the future of the Pennsylvania Avenue corridor, officials admitted DDOT is the sole authority on the avenue itself.
So DDOT isn’t submitting their proposal to install Zebras along the Pennsylvania Avenue bike lanes and improve public safety because it has to, but because it’s done so before. Some DDOT staff members know CFA has no control over the bike lanes, but DC leaders seem to like using them as an excuse for inaction.
With strong leadership and political will, DDOT would simply follow good bike lane engineering practices and install the Zebras. After all, they are well within their legal right to do so.