On Tuesday, DC Councilmember Tommy Wells will introduce a bill to modify the existing ban on overhead wires in the L’Enfant City, his office announced last night.
The new bill would not allow wires across the District, but would maintain the current ban with an exception for streetcars on H Street NE and Benning Road.
To add wires to any other areas, DDOT would need to formulate a citywide streetcar plan and seek Council approval. They would also need to protect important viewsheds using some kind of hybrid approach.
The existing laws, passed by Congress in 1888 and 1889, prohibit overhead wires of all types in the L’Enfant City, the area north of the Potomac and Anacostia rivers, south of Florida Avenue, and east of Rock Creek. It’s often been claimed that “federal law” prohibits wires, and therefore the DC Council can’t modify the ban.
However, in a legal memo for DC Surface Transit, noted historic preservation lawyer Andrea Ferster argues that the Council can indeed modify the law (subject to the usual Congressional review). Congress passed all laws in the District before 1973, and when they granted Home Rule, they gave the Council the right to modify those laws, with certain specific exceptions.
One exception was that DC can’t allow buildings that exceed the 1910 Height of Buildings limits. Only Congress can do that, and has from time to time, such as for the current tallest building, the National Shrine, constructed in 1959. DC also isn’t allowed to impose a commuter tax, or to modify the DC Courts or the U.S. Attorney. They also can’t override any federal laws that apply beyond DC, but the wire ban isn’t one of those.
The Home Rule Act and District Charter do not mention the wire ban as one of the non-changeable laws, and therefore, argues Ferster, the Council can modify it just as they could modify any other DC-specific law that was in effect prior to 1973. There were lawsuits about this in the 1980s, such as District of Columbia v. Greater Washington Central Labor Council, AFL-CIO in 1982, where the courts allowed the Council to repeal a federal law that applied federal workers’ compensation laws to DC private employers. The wire law appears to fall into the same category.
DC also isn’t allowed to legislate about the property of the United States, and the U.S. technically “holds title” to streets in DC, but laws allow DC to close streets without Congressional approval, and in the 1986 case Techworld Development Corp. v. D.C. Preservation League, a court held that streets are “precisely the sort of local matter Congress wishes the D.C. Council to manage” through the Home Rule process.
Another opinion by the DC Office of the Attorney General says that the Council’s right to allow wires won’t apply to a few specific areas: the land controlled by the National Park Service or the Architect of the Capitol. They also can’t build wires that exceed the Height of Buildings Act or local zoning, and are required to respond to (but not obey) NCPC’s recommendations for in-ground power systems instead of wires.
The Wells bill also requires DDOT to submit a report by January 2014 on whether it’s feasible to remove existing streetcar overhead wires and convert the lines to wire-free operation. Based on the information presented at the streetcar technology forum, it seems that completely wire-free operation is indeed likely to become possible and practical in the not-too-distant future.