several amendments, somewhat of a technical nature. I would ask that you include them in the record.

Mr. Dowdy. They will be made a part of the record. (The reports follow:)

District of Columbia Public Space Rental Act

GOVERNMENT OF THE DISTRICT OF COLUMBIA

Hon. JOHN L. MCMILLAN,

Chairman, Committee on the District of Columbia,

EXECUTIVE OFFICE

Washington, October 19, 1967.

United States House of Representatives, Washington, D.C.

DEAR MR. MCMILLAN: The Commissioners of the District of Columbia have for report H.R 12506, 90th Congress, a bill "To authorize the Commissioners of the District of Columbia to fix and collect rents for the occupancy in, on, under, or over the streets of the District of Columbia, to authorize the closing of unused or unsafe vaults under said streets and the correction of dangerous conditions of vaults in or vault openings on public space, and for other purposes."

The bill is substantially similar to legislation proposed by the Commissioners and transmitted to the Speaker on July 20, 1967. The Commissioners incorporate for purposes of this report the letter of transmittal dated July 20, 1967, accompanying the draft legislation they proposed.

The Commissioners recommend that the definition of the term "vault", appearing on page 4 of the bill, for purposes of clarification be amended by striking the period in line 14 on page 4 and adding the following:

or of any governmental entity or foreign government, or any structure or facility included in any lease agreement entered into by the Commissioners."

The phrase "or any governmental entity" should be inserted at the end of line 23 on page 4; and on page 5, in the first line, the phrase "or a governmental entity" should be inserted following "government" each time the latter word appears. In addition, the Commissioners recommend that they be authorized to exempt from from rental charges those relatively temporary uses of public space which are of minor character. They therefore suggest the following new section be added at the end of title 1 of the bill.

"SEC. 105. Notwithstanding any other provision of this Act, the Commissioners are authorized in their judgment and pursuant to regulations adopted and promulgated by them to permit the occupancy of public space for minor uses without requiring rental payments when the fixing and collection of rental charges would not be feasible."

The Commissioners urge enactment of the bill with the aforementioned amendments.

The Commissioners have been advised by the Bureau of the Budget that from the standpoint of the Administration's program there is no objection to the submission of this report to the Congress.

Sincerely yours,

WALTER N. TOBRINER,
President, Board of Commissioners, D.C.

GOVERNMENT OF THE DISTRICT OF COLUMBIA,

The Honorable the SPEAKER,

EXECUTIVE OFFICE,
Washington, July 20, 1967.

United States House of Representatives, Washington, D.C. MY DEAR MR. SPEAKER: The Commissioners of the District of Columbia have the honor to submit herewith a draft of a bill "To authorize the Commissioners of the District of Columbia to fix and collect rents for the occupancy of space in, on, under, or over the streets of the District of Columbia, to authorize the closing of unused or unsafe vaults under said streets and the correction of dangerous conditions of vaults in or vault openings on public space, and for other purposes." The District of Columbia, by reason of the foresight of its founders in connection with the establishment of the Federal City and the action of Congress in requiring streets of the District outside the cities of Washington and Georgetown to be of a specified minimum width (Act of March 2, 1893; D.C. Code, sec. 7-108), may

be considered fortunate in having wide streets available for the use of the general public. In many cases, the District's streets are used to their full capacity for the movement of vehicular and pedestrian traffic. In many other cases, however, the movement of such traffic does not require the full use of the street, and in such instances there is a tendency on the part of operators of businesses along such streets to encroach on portions of the public right of way. This situation occurs with particular frequency on those streets where the sidewalk, or the sidewalk and the parking, is of considerable width and in streets in areas of the city primarily used for industrial purposes, where vehicular or pedestrian traffic, or both such kinds of traffic, are light, and there is no apparent demand for the use of the street by the general public.

The condition just described: i.e., the tendency to encroach on public space, is complicated by the fact that it has developed gradually to the point where, if it were discontinued, there would be considerable economic dislocation and inconvenience to the public. This is particularly true in the case of automobile parking lots. Many of these lots, providing off-street accommodations for motor vehicles, depend on the use of public space for the movement of the motor vehicles accommodated in such lots, and for their storage, either for a short time or for a relatively long time. In some cases, access facilities available to the parking lot operator make it mandatory that he use public space for shifting vehicles. But parking lots are only one example of a practice which has become general throughout the District. The Commissioners recognize that one "solution" of the problem would be to require that no use be made of public space for private gain. Aside from the difficulty of enforcing such a requirement, and the necessity for devoting a large number of police to its enforcement, the Commissioners question whether such a "solution" would be in the public interest. They believe there is a definite need in the District for the use of public space for private gain to the extent that any such use does not preclude the general public from being able to use such space, whenever the general public has need of it. There are, however, areas in the streets which are not now, or may not in the foreseeable future, be required for the use of the general public. The Commissioners believe that until such a need arises, there is no good reason why such street areas should not be made available to owners of properties abutting such areas, upon payment of adequate compensation, for the use of operators of businesses in or on such properties, on condition that such use is temporary only, although perhaps for an indefinite period of time, with the user acquiring no right, title, or interest in any space which he may be permitted to use. The payment of compensation to the District for the use of any such space would, it might be noted, be a constant reminder to the owner of the abutting property that he has no right, title, or interest in the space he is permitted by the District to use on a temporary basis.

The foregoing comments of the Commissioners have been directed principally to the use of public space on or above the surface of the ground. The same comments apply to the use of subsurface space, but in this area Congress has, since 1916 (Section 7 of the Act of September 1, 1916; D.C. Code, sec. 7-901), recognized the desirability of allowing the Commissioners to make public space available for the use of the owner of the property abutting such space, for the purpose of placing therein what is known as a "vault".

A considerable amount of space under the streets of the District, including the tree space, the sidewalks, and the parking (the area between the sidewalk and the building line) of such streets, is occupied by "commercial vaults", by which term is meant a vault in public space abutting property used for other than one- and two-family dwellings. District records indicate that there are 1,954 such vaults. During the fiscal year ending June 30, 1966, 922 vaults were used by the owners or occupants of the abutting property. For the use of these vaults during such year, the District charged rent totaling $76,317, as permitted by a provision contained in the 1917 Appropriation Act (D.C. Code, sec. 7-901), authorizing and directing the Commissioners

to assess and collect rent from all users of space occupied under the sidewalks and streets in the District of Columbia, which said space is occupied or used in connection with the business of said users."

Approximately 850 of the “vaults" are either not now used, are fuel tanks not covered by existing law, or are vaults with respect to which the owners of private property abutting public space in which such vaults are located are not required to pay rent. These situations would be subject to the proposed legislation, particularly so much thereof as relates to the safe condition of a vault or vault opening.

Because of the law authorizing the Commissioners to assess and collect rent from users of space occupied under the sidewalks and streets in the District in connection with the business of the occupant or user, the District at present collects or attempts to collect rent only from persons actually using or occupying the vaults. However, in the case of a large number of commercial vaults in public space, the District is unable, under existing law, to take action respecting such vaults, with particular reference to the collection of rent, since allegedly they are not used or occupied by the owners or occupants of abutting property. Moreover, the allegedly unused vaults may constitute a danger to the public, but existing law affords no remedy, absent imminent danger, for the District to take corrective action.

The Commissioners recommend enactment of legislation providing them not only with authority to assess rent against the users of vaults in public space, but with authority to require the closing off or filling up of vaults which owners of abutting property may not desire to use; to correct dangerous conditions arising from the existence of a vault or vault opening; to charge the cost of closing off vaults or correcting dangerous conditions to the owner of abutting property; to provide for assessment of unpaid rents and other charges relating to vaults against abutting propert, to be collected in the same manner as delinquent real property taxes are collected; to provide a penalty for unpaid rent; and to require the partial or complete abandonment of vaults for the purpose of permitting construction of street improvements or the construction or extension of sewers, water mains, or public utility facilities.

The first title of the draft bill contains a statement of policy and definitions. The statement of policy emphasizes that the Congress finds that some private use may be made of public space, upon payment of adequate compensation to the District and on condition that such use be discontinued whenever the public space is required for the needs of the general public.

Title II of the bill provides for the rental, on a temporary but perhaps indefinite basis, of public space on or above the surface. In the belief that the many possible uses of surface space make it necessary that the Commissioners have the greatest possible degree of flexibility in the management of this space, the title authorizes the Commissioners by regulation to provide for the rental of this space and for its management. The first two sections of this title provide for the rental of public space to the owner of the real property abutting such space; the non-liability of either the United States or the District for any loss or damage arising out of the use of such space; and the fixing of rent.

Section 203 is designed to take care of situations in which privately-owned property immediately abutting public space is subject to section 2 of the Act of May 31, 1900 (D.C. Code, sec. 7-117), thereby possibly precluding the use of such property in the manner in which the public space is proposed to be used. Under the last two provisos of such section of the 1900 Act, applicable in those instances in which land has been dedicated for street use, fifteen feet of privately-owned property immediately abutting public space is set aside to be used as "parking", under an agreement by the dedicating parties that

"said parking shall be subject to the regulations of said Commissioners in regard to height of parking and the projection of buildings beyond the building line, and that the District of Columbia shall have a right of way through said parking for sewers and water mains free of cost, and to lay thereon sidewalks, if, in the judgment of said Commissioners, the space between street lines is not sufficient to admit the construction of such sidewalks within said lines."

The foregoing restriction on the use of privately-owned property on a dedicated street might have the effect of precluding an otherwise permissible use of public space. Section 203 is intended to authorize the Commissioners, under such circumstances, to permit the same use to be made of the privately-owned restricted property as they allow to be made of the abutting public space.

Section 301 of Title III repeals existing law relating to the rental of vault space, and provides that all permits for the use of public space issued under the authority of section 7 of the Act of September 1, 1916, supra, shall be revoked as of the effective day of such title; i.e., the first day of July which occurs three months or more after the date of approval of the Act.

Section 302 authorizes the Commissioners to issue a permit for the use of a vault in existence on the effective date of the Act, or for the construction of a vault after such effective date, only to the owner of the real property abutting the public space in which such vault is or will be located, subject to the execution of an agreement complying with the requirements of such section.

Section 303 authorizes and directs the Commissioners to assess and collect rent in advance from the owners of abutting property for any vault located in the public space abutting such property, unless the vault has been made unusable. Section 304 provides that the owner of property abutting public space in which a vault is located shall pay in advance the annual rent fixed by the Commissioners from time to time for the use of the vault regardless of whether the owner actually uses the vault, unless he has by July 1 of the rental year given the Commissioners notice that he has abandoned the vault and has performed such work as may be required by the District so as to make it impossible for him to use the vault. This section is designed to cope with the problem of the owner of abutting property who claims to make no use of a vault, but the truth of whose claim cannot readily be ascertained. In the interest of facilitating the administration of existing law, the Commissioners have heretofore provided that the minimum annual rental for vault space shall be $10. The bill continues this requirement, since it is believed to be a reasonable minimum annual rental.

Section 305 provides for advance payment in full of the annual rent established for a vault in existence at the beginning of a fiscal year. If a vault be constructed between July 1 and January 1 of any such year, one-half of the established annual rent is to be paid prior to January 1. If a vault be constructed between January 1 and July 1 of the succeeding year, no rent is to be required for the use of the vault during this period, but rent for the following year must be paid in full prior to July 1. The section provides a penalty of one percent a month for rent not paid when due. The section also provides for a refund of a portion of prepaid rent in any case in which a vault for which rent has been paid is vacated, in whole or in part, either voluntarily or involuntarily.

Section 306 authorizes the Commissioners to order a vault reconstructed, repaired or closed in a manner satisfactory to them, or to do such work themselves, after securing an order from the Court of General Sessions empowering them to enter upon the privately-owned property to perform necessary work.

Section 307 authorizes the Commissioners to require or take such prompt action as may be necessary to correct an imminently dangerous or unsafe condition associated with a vault or vault opening, and, if the work be performed by the District, to charge the cost thereof against the private property.

Under section 308, the Commissioners are required to take such action as may be necessary or desirable to secure reimbursement of the cost to the District of performing work in connection with vaults or vault openings requested by the owner of abutting property or required to be taken by the Commissioners in connection with sealing off, filling, or making a vault or vault opening safe.

In addition, section 308 requires the Commissioners to take such action as may be necessary to collect rents, interest, or rental payments, and the cost of advertisement required by title III. Normally, such reimbursement may be expected to be received in payment for a bill sent to an owner of abutting property. In some cases, however, reimbursement may not be made. Accordingly, the section provides that all charges connected with vault space accruing during a fiscal year shall be paid within ninety days after the end of the fiscal year, and if not so paid, such charges shall become a lien against the property abutting the public space in which the vault is located, and the property shall be subject to sale at the next ensuing tax sale in the same manner and under the same conditions as property sold for delinquent real estate taxes.

Section 309 provides that vaults affected by the bill shall be subject to the condition that various kinds of underground construction or installations may be placed in or through any such vault, without compensation to the person owning the abutting private property or to the person occupying or using such vault; and that the District under appropriate Court order shall have the right to enter upon the abutting private property at any time for the purpose of inspecting and maintaining or repairing such underground facilities.

Section 310 provides that nothing in title III shall be construed as authorizing the Commissioners to impose a rental charge for the use of a vault in public space abutting private property used solely for a single or two-family residence, but each such vault is otherwise subject to the provisions of the title. This distinction is necessary if action is to be taken to eliminate any unsafe condition which may be associated with the vault.

Title IV authorizes the Commissioners to make regulations to carry out the purposes of the bill and to include a penalty of not more than $300 or imprisonment for not more than ten days "for each and every day when public space is used or occupied in a manner or for a purpose specifically prohibited by the said regulations". Title IV also specifics that the Commissioners shall require persons using

public space to secure insurance covering such use; provides for the serving of notice and authorizes a number of alternative methods of serving notices on property owners affected by the bill; requires rent paid for the use of public space to be credited to such special funds or general fund of the District in such proportions as the Commissioners may determine; authorizes appropriations to carry out the Act; contains a separability provision; coordinates the Act with Reorganization Plan No. 5 of 1952; provides that nothing in the Act shall be considered as affecting or diminishing the authority of the Commissioners with respect to streets dedicated in accordance with section 2 of the Act of May 31, 1900, supra, and to make use of the parking on such streets as authorized by such section; and establishes effective dates for titles II and III to permit the Commissioners to have adequate time to adopt regulations relating to such titles, and, since vault rent under existing law is paid on a fiscal year basis, to make the provisions of title III effective on the first day of July following the approval of the Act by three months or more, so as to allow an orderly and uninterrupted transition to the new system of charging vault rent and managing vault space throughout the District.

With respect to the manner in which the use of public space is to be controlled, particularly from the standpoint of insuring that its use will not be to the detriment of the public, the Commissioners contemplate adopting regulations somewhat similar to those they have adopted with respect to the use of space on streets which have been denominated as business streets, but adapted to take into consideration the needs of persons utilizing public space for business purposes, as authorized by the bill. It is the hope of the Commissioners that, should the bill be enacted, they would be in a much better position to require improvements in the appearance of public space used by persons in the abutting private property, or the discontinuance of such use. As the Commissioners have indicated, the major problem in connection with controlling the use of public space is a shortage of manpower and a reluctance to require the discontinuance of a use which in many cases has become a necessary one. However, if the rental of public space is authorized, the Commissioners anticipate that some of the revenue from such use could be appropriated to employ personnel to police the uses made of public space, and to take appropriate action with respect to unauthorized uses.

The income the District may derive from the rental of public space is difficult to estimate but it can be expected to be substantial. So far as subsurface public space is concerned, the District expects to receive approximately $81,500 during the current fiscal year. It may well be that this figure is too low, considering the value of the space to the owners of the abutting property, and reconsideration of the matter in the light of the bill, should it be enacted, may result in some increase. So far as surface and supersurface public space is concerned, it is difficult for the Commissioners to estimate the income from its use but it also could be substantial. In the absence of experience on which to base an estimate, and in view of the large number of imponderables, such as, for example, the availability of public space, the desirability of a proposed use of such space, the willingness of a potential user to pay a specified rent, and variations in the assessed value of private property, the Commissioners cannot provide any estimate of revenuc which would be derived by the District as a result of the enactment of the bill. However, if those uses of sidewalk space presently authorized by the Commissioners are continued (28 permits for sidewalk cafes are presently in effect), and, in addition, other public space is rented temporarily for business purposes, this income, together with the income from vaults, could be considerable in amount.

The Commissioners believe that control by the District of uses of public space for private gain is in the best interest of the citizens, the business enterprises, and the government of the District of Columbia. Accordingly, they urge the enactment of the bill.

The Commissioners have been advised by the Bureau of the Budget that, from the standpoint of the Administration's program, there is no objection to the submission of this legislation to the Congress.

Sincerely yours,

WALTER N. TOBRINER, President, Board of Commissioners, D.C.