Author: chogan@directresearch.com

Post #480: Virginia Freedom of Information Act and Noah’s Ark

Above:  Abstract depiction of Town Council meeting.  (Note:  Illustration of town officials as unclean animals is unintentional, and unavoidable given popular misunderstanding of Genesis 7:2)

The Virginia Freedom of Information Act

The Virginia Freedom of Information Act (VFOIA) is your only defense against local or state government entities that want to act in secret, behind closed doors, and away from the sunshine.  It’s the only real way to keep governments in Virginia from treating the peasants citizens like mushrooms — you know, keep us in the dark and feed us a bunch of manure.

Even if you never read the entire VFOIA, it’s well worth reading the first two paragraphs.  I’m going to boldface a few key phrases, from the link cited just above:

B. By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

Here’s a couple of additional key points, again from the reference above:

What is a meeting?  It’s when three or more of our elected or appointed officials get together, in any setting, and discuss the public business.

"Meeting" or "meetings" means the meetings ... of (i) as many as three members ... of any public body.

There are numerous common-sense exceptions to the rule that meetings must be open.  For example, when the Town Council is considering buying real estate, or considering personnel matters, it may conduct its discussion behind closed doors.  Otherwise, if three or more gather to do the public’s business, that has to be done in public.

And, as I noted in Post #457, anything that Town Council gets to see, as part of a meeting, the public gets to see as well.

...

F. At least one copy of the proposed agenda and all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body.  ...

The Town hasn’t been too good about doing that.  For example, of late, they’ve taken to not providing copies of Town staff presentations as part of the agenda packet that is issued prior to a meeting.  And then, when asked, providing copies to Town officials afterwards.  So they aren’t in the agenda packet, but they are presented at the meeting, and delivered to Town officials afterwards.

You can always take a picture of what’s on the screen, in a meeting, with your cell phone, I guess.  So maybe that meets the letter of the law.  But that’s not my main gripe.  At least not for this post.

 

And now a brief quiz, with answers given in the last section.

Hypothetically, suppose a Virginia town wanted to sidestep the Virginia Freedom of Information Act.  Maybe they have some document that they want their town council to discuss and vote on.  But they want to keep that document out of the public eye, and they want to keep everything but the vote out of the public’s view as well.

And so they develop the following method.  They bring town council members into a room, two-by-two, to have them read the document and discuss it.    That way, all the elected representatives of this town would have had a chance to read and discuss this document among themselves.  And they will “daisy chain” the information — every town council member is free to inform every other town council member of what any other town council member said.  So they all get to read the document, and they all get to know what everyone thinks of it, but because there were never three of them in the room at the same time, that discussion is not a “public meeting” and can remain secret.  And the underlying document can remain secret.  That is, out of the public’s view.

Question 1:  Is that legal?  Is it legal to for a town government to create a formal method for sidestepping the intent of the Virginia Freedom of Information Act by , in effect, holding a town council meeting serially — two-by-two — instead of all at once (seven-in-the-room)?

Question 2:  Should that be legal?

Answers

Question 1:  Is that legal? Yep, that’s legal.  I couldn’t find it in black-and-white, but it’s a common enough trick that I found it discussed by a Virginia county attorney on YouTube.  She even referred to it as “daisy chain” and “Noah’s Ark”.

So the Noah’s Ark meeting — conducting a discussion by an entire public body, in private, two persons at a time — appears to be a valid legal loophole by which a Virginia town government can sidestep the clear intent of the Virginia Freedom of Information Act.

Got to 4:30 in this YouTube video to hear the discussion of open meeting requirements, and go to 5:30 in this clip to hear the two-by-two “Noah’s Ark” method described.

Question 2:  Should it be legal?  I’d say that depends.  If this is the only way you can avoid fisticuffs in a meeting — by literally keeping combative parties physically separated — I think most would argue that’s a legitimate (if regrettable) way to get the public’s business done.

By contrast, suppose that the only reason a town did that was to circumvent the Virginia Freedom of Information Act?  Suppose that they used the Noah’s Ark meeting purely as a way to keep discussion and documents out of the public eye.  Suppose they used this method to conduct business, in private, that could just as easily have been done in public — they just didn’t want the citizens to know about it?

I’m not a lawyer, but in that case, I’d bet you could find a sympathetic judge to rule that illegal.  Particularly when the statute says this, quite plainly:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

I’d say that the use of the Noah’s Ark meeting, purely to keep documents and discussion out of the public eye, was in direct contradiction to that clause in red.  But then again, I’m not a lawyer, and I could not find any reference to that being tested in court.

Of course, the trick there is that nobody would be stupid enough to say that this method was being used solely to keep government action secret.  If pressed, any town government could gin up some fiction as to why it chose to keep discussion and documents private, rather than public.  So, maybe the reason I couldn’t find any challenges to this practice is that it would be effectively impossible to prove that the motive was purely to sidestep the Virginia Freedom of Information Act.

Anyway, the bottom line is that if you ever wondered how, sometimes, at our own Town Council meetings, Council members are aware of the technical details of an issue, and sometimes the discussion makes it seem like the issue in question is a done deal.  Without there having been any publicly-available documents posted for a meeting.  Or anything like a public discussion where you heard them agree on the issue at hand.  Well, the Noah’s Ark meeting is one way they can do that. It’s one way a public body in Virginia can do its business in private, and still, at least in theory, meet the letter of the law with respect to the Virginia Freedom of Information Act.

Post #479: How many people could you house at the Giant Food property, if you really tried?

(Click this link to download a spreadsheet with all the VDOT traffic counts for the Town of Vienna:  VDOT traffic counts 9-27-2019)

This is a little thought experiment, prompted by Town Staff’s continuing to push the idea of six-story buildings under MAC.  Rather than fight that, I figure, what the heck, let’s just run with it.  What would we get?

Best guess?  A six-story MAC development on the Giant Food property would yield about 1400 new residents, or roughly an 8.5 percent increase in the population of the Town of Vienna.  All in one place.  And maybe a 15 percent increase in peak rush hour traffic on Maple?

Such is the power of medium-density housing.

Detail follows. Continue reading Post #479: How many people could you house at the Giant Food property, if you really tried?

Post #478: Bus strike

Above:  Fairfax Connector 463 bus route.

Just in case you hadn’t heard, the Fairfax Connector bus workers are on strike.  You can read about it at this link.

Per Fairfax County, it looks like the main Maple Avenue bus (the 463 route, Vienna Metro to Tyson’s Metro via Maple Avenue) should run on a Sunday schedule (hourly, 8 AM to 8 PM).  But if you read the details, that’s not guaranteed.  It will depend on how many drivers show up for work despite the strike.

According to Fairfax County’s Facebook page, the bus tracker website will show incorrect information.  It will continue to show a weekday schedule, so you can’t rely on it to tell you when the next bus is coming.

None of the other Connector routes in Vienna will be running.

Post #477: A Councilmember’s proposal in response to the Wawa tree destruction

Something remarkable appears to be happening in response to the mistaken removal of mature maple trees at the Wawa lot.  A Town Council member is trying to fix the system so that this doesn’t happen again.  You can download Councilman Majdi’s proposal from this Google Drive link (.pdf)  This is a rare enough event in Town of Vienna government that it’s worth writing up for that reason alone.  And, separately, because it might actually work to prevent a repeat of what happened at the Wawa.

Continue reading Post #477: A Councilmember’s proposal in response to the Wawa tree destruction

Post #476: Public meetings this week regarding MAC zoning

There is just one meeting this week with some relevance to MAC zoning.

Wednesday, 12/4/2019, at 7:30 PM in Town Hall, a Town Council work session will address a planned survey of opinions about commercial development in Vienna, including MAC and other commercial zoning.

The relevant materials can be found here:
https://vienna-va.legistar.com/MeetingDetail.aspx?ID=724096&GUID=6AFBF094-74CE-43D7-95F4-5AB50093E578&Options=&Search=

Post #475: Survey

A colleague tried to ruin the last of the holiday weekend for me by asking about the Town’s proposed survey on … MAC-ish, development-ish stuff.  I decided it could probably wait until Monday morning.  In hindsight, I’d say that was the right decision.

You can access a draft of the Town’s proposed survey at the link on this web page.  This survey will be discussed at tomorrow’s (12/3/2019) Wednesday’s (12/4/2019) Town Council work session.

Formally, this item is listed as:

Discuss Draft Commercial Development Survey related to Town Council Directive to draft Amendments to Maple Avenue Commercial (MAC) Zone and Other Commercial Zoning Districts along with Related Amendments

Now, before we go one step further, I need to ask you a question:  Did you actually read all of that block of text above?  Honestly?  Or, by the time you got to the 4th or 5th dependent clause, did you choke and just skip to the end?

I think the agenda item itself sets a clear tone for what follows.

To cut to the chase:  Town Council has decided to ignore the cardinal rule of survey design (Post #415).  And so, whatever happens next, they own it.  This is the Town Council’s survey.

And I give up, meaning, I’m not even going to bother to talk about the details.  As with most of Town staff comportment in this area, all I can say is, if Town Council puts up with it, then, once again, they own it.

Instead, I’m going to stick to the basics, and just count stuff.  Turns out, counting to small numbers is a bit of a lost art in the modern world (e.g., see Post #465). 

The majority of people who read this website do so on phones (as opposed to tablets or computers).  The same holds true of most websites, including the SurveyMonkey website where the Town plans to host this survey.

So this next bit is aimed at you phone users.  I’ve taken the Town’s draft survey — all 2200+ words of it — converted to text, and copied it in below.   So this doesn’t include the graphics, and I haven’t bothered to format it.

What I would like you to do is to count the number of screens, in this ten-minute survey.  Not even asking you to read it.  Just asking you to scroll through, one screen at a time, and count the number of screens in this ten-minute survey.  And just to keep it real, if you don’t actually make it down to the last screen, I’m throwing your answer away and it doesn’t count.  Just as the Town will do with the actual survey.

Go:

Continue reading Post #475: Survey

Post #474: 11/26/2019 Transportation Safety Commission meeting

I attended part of the TSC meeting last night.  There was a total of three people in the audience.

I brought the situation at the Chick-fil-A drive through to their attention (see just-prior post).  They seemed to understand that this might be hazardous and asked Department of Public Works to look into it.

Otherwise there were just a few things of note.

Rental electric scooters (Post #472 and earlier posts).  They made some small amendments to the “memorandum of understanding” that would govern any rental scooter agreements here in Vienna.  Mostly, they wanted language added that would specifically mention the Americans With Disabilities Act (ADA), in the sense of banning any scooter parking that would impede ADA-mandated access points.

They also had extensive discussion of the geofencing of Maple, Nutley and possible other streets to limit speeds, with the idea being that scooter users would likely be on the sidewalk on those streets.  There was some discussion of limiting speed to 6 MPH on those roads, but they stuck with the DPW recommendation of 10 MPH.

So, in a nutshell, if rental electric scooters are offered here in Vienna, the rules will look something like this, unless the Town Council changes them at their next meeting:

  • It is legal to ride on the sidewalk (but riding in the road is encouraged where it is safe to do so).
  • Speed limit of 20 MPH, except Maple and Nutley speed limit of 10 MPH (under the assumption that they’ll be most on the sidewalk on those street).
  • You can park them anywhere, but you can’t block any right of way (e.g., sidewalk) and in particular you can’t block any ADA access.  (And obviously, you can’t park them on private property without the property owner’s permission or acceptance.)
  • To enforce that, they are going to ask the vendor to require that each user send a picture of the parked scooter (or some equivalent technology).  Apparently, that system — you need to send a photo of the parked scooter in order to end your trip — is commonly used as a way to enforce reasonable parking of the scooters.

My opinion is that it’s probably wishful thinking to believe that a vendor would offer rental scooters here.  But you never know.  In particular, our Metro ridership (based on Census survey data) tends to be an older, high-income population.  I doubt that rental scooters are likely to generate many trips to Metro.  But again, you never know.

My (scant) observation in Fairfax City was that these were used by most college-age kids, and that the Fairfax City ban against using these on the sidewalks was routinely ignored.  (Per Fairfax City:  “City Code currently prohibits e-scooters, e-bikes, and other vehicles from sidewalks and trails (except on certain designated routes). “)  So even if you don’t like the idea of rental electric scooters on the sidewalks, my guess is, if they are going to be used here, there’s no practical way to keep them off the sidewalks.

One last tidbit:  Apparently, and news to me, electric scooters are allowed on the W&OD.  That was announced by DPW staff at this meeting.  I could find nothing on-line to validate this, not even on the Northern Virginia Regional Park Authority website.  Their website notes that e-bikes are allowed, but as far as I can tell, there’s no mention of electric scooters.

Separately:  Unsafe conditions on Kingsley and Tapawingo.  DPW met with citizens regarding unsafe intersections on Kingsley and Tapawingo, on November 19 and 20.  The had a total of about 22 citizens show up to discuss potential changes to those roads and intersections to improve safety.

Post #473: No standards for pedestrian sight lines

This post is a courtesy for the Vienna Transportation Safety Commission (TSC).

The first point is to provide a convenient reference to Post #424, which is my summary of the Chick-fil-A drive-through exit hazard.  In a nutshell, I think that the obstructed view of the sidewalk there constitutes a clear hazard to pedestrians and bicyclists, on what is now a walk-to-school route thanks to the Madison HAWK light.

At tonight’s (11/25/2019) TSC meeting, I’m going to ask the Town to do something about that.

My second point is that there does not seem to be any technical guidance on this issue whatsoever, from either the Virginia Department of Transportation or from Federal sources.  The issue being, specifically, when a driveway meets a sidewalk next to a public road, what constitutes adequate sight lines between drivers in the driveway, and pedestrians on the sidewalk.   (So, not an issue of driver-to-driver sight lines, but driver-to-sidewalk-pedestrian sight lines.)

Best I’ve seen, so far, from VDOT or federal sources, is a vague statement that one should have adequate sight lines.  And that’s in the context of roadway intersections, not driveways entering a roadway.

After considerable searching, I found a handful of municipalities that addressed this exact issue.  Near as I can tell, all of them ask for the area to be kept clear of visual obstructions 10 feet or more back from the sidewalk, when a driveway enters a roadway.  This should be contrasted with the 1-foot distances between the sidewalk and the obstruction (a 5′ tall transformer box) at the Chick-fil-A drive-through exit. 

So, if you were looking for solid evidence that the situation at the Chick-fil-A drive-through exit is hazardous, here are four cities that would have banned it.  These are all standards for vehicle-pedestrian sight lines.

Lincoln, NE (.pdf) says you can have no obstructions with 10 feet of the sidewalk where a driveway enters a street.  Like so:

City of Kirkland, WA requires a 22′ setback, as measured along the sidewalk, but they assume that cars will be moving 10 MPH down a driveway.  Not sure this is relevant.

Bellevue, WA says 14′ from the back edge of the sidewalk must be kept clear, but that’s measured in the middle of the travel lane.

City of Albuquerque requires 11′ be kept clear around residential driveways.

I think this is enough to show that where this issue of pedestrian visibility at driveways is explicitly addressed, the required setbacks from the sidewalk that must be clear of visual obstruction vastly exceed what we have at the Chick-fil-A drive through exit.

Post #472: CORRECTED: Rental electric scooters tonight

Correction:  I attended the meeting and found that my original draft of this was wrong.  Councilman Noble’s idea of geofencing some sidewalks for slower speeds is included in the Town’s plan for this.  As of last night, the idea was to limit scooters to 10 MPH on Maple and Nutley, with the idea that scooters were likely to use the sidewalk on those streets.  The concept was that other streets might be added if “scooters on the sidewalk” became an issue elsewhere in Vienna.

Tonight (11/26/2019), at 8 PM, the Transportation Safety Commission will discuss the Town’s proposed pilot program for rental electric scooters (and other issues).  As I see it, the two key unresolved issues are whether you want to allow rental electric scooters on the sidewalk, and whether you want to allow them to park anywhere (as long as they don’t block the right-of-way.) 

If you need to know the background, see Post #377.  Briefly, repeated from that post:

… due to a change in Commonwealth law, the Town needs to have some sort of program in place to regulate the use of rental scooters and bikes.  If not, then on 1/1/2020, the rental and use of such devices is deemed legal, including, if not explicitly barred, use on the sidewalk.  We probably don’t want that …

So it’s not like the Town is going out of its way to attract rental electric scooters.  It’s more a matter of self-defense.  (Though, I must say, my interactions with scooters in the City of Fairfax has been positive so far — see Post #393).

The meeting materials on this topic may be found at this Town of Vienna web page.  The term of art here is SMD for shared mobility device.

After skimming the documents, near as I can tell, this is just a pro-forma adaptation of the same contract that most other jurisdictions are using.  More-or-less, this appears to be the same “cookie-cutter” draft that was presented to Town Council earlier.  It outlines the framework for contracting, and nothing else.

In particular, I’m still uncertain about two key details, sidewalk use and location of “corrals” for parking scooters.   As I recall, these are both issues that the Town Council needed to resolve.

The “corrals” don’t appear to be mentioned in the legal documents.  In fact, the only mention of parking of these scooters, in general, appears to be this:

Defined response times for removing devices for critical issues designated by the Town

I think that means that the Town will ask this company to pick up scooters that are reported as blocking a sidewalk or entrance.  And, based on these documents, it’s up to the company to determine the standard for quickly they plan to pick those “mis-parked” scooters up.  But otherwise, there’s no indication that there are any parking rules at all (beyond what is specified in the Commonwealth statute above).

The sidewalk issue is, I think, critical, because as I understand it, the default under Commonwealth law is that these things are legal on the sidewalk.  And certain Town Council members (Majdi, at least) really objected to that.  So if the Town wants to keep them off the sidewalk, I think Town Council has to pass an amendment to Town Code to do that?  I’m not a lawyer, but that’s how I read it.

Commonwealth of Virginia law says this, emphasis mine:

The governing body of any ... town may by ordinance prohibit the use of ... personal delivery devices ... on designated sidewalks or crosswalks ... Unless otherwise prohibited, electric personal delivery devices may be operated on the sidewalks ... of any locality of the Commonwealth. ...No person shall park a ... scooter in a manner that impedes the normal movement of pedestrian or other traffic or where such parking is prohibited by official traffic control devices.

So I think that if Town Council wants to keep these off the sidewalks, they must actively say so.  And (from a part of that statute that I omitted), they are required to post signs saying so.  So this isn’t trivial.

Near as I can tell, the only mention of “mobility devices” in Town of Vienna code is section Sec. 21-8. – Prohibited or restricted activities.  That prohibits certain activities (e.g., riding two abreast in the roadway) and requires riders 14 and under to wear helmets.

To be clear, then unless the Town passes ordinances to the contrary, as it stands, rental electric scooters can be used on the sidewalk, and can be left anywhere that does not literally block the use of the sidewalk or road.

I certainly hope that the TSC is preparing to make recommendations to the Town on these key issues.  It’s a tough call.  On sidewalks:  Without sidewalk use, you pretty much can’t get to Metro or use Maple Avenue.  Councilman Noble’s suggestion of geofencing those streets to enforce lower speed limits (while allowing sidewalk use) appears to have fallen by the wayside.   So somebody needs to make the call here, otherwise the defaults (in red above) apply.  On parking:  If the Town designates a handful of areas for legal scooter parking, that pretty much negates the use of the scooter as a disseminated transportation modality.  (Or, in English, then you can get to where you want to go.)  But no rules means that these might be parked anywhere as long as they literally don’t block the sidewalk right-of-way.

Aside:  This 8 PM meeting will be preceded by separate meetings of the Bicycle and Pedestrian Advisory Committees, starting at 7 PM.  Having attended the last one of those, I can state that if you are thinking of attending those, just realize that they don’t expect or make accommodations for citizens to attend.  Typically, there’s no agenda posted in advance (which is true for tonight’s meeting).  The last BAC meeting consisted of Committee members standing around a table in the front of the room, commenting on a paper copy of a proposed bike map.  There was literally no use in attending the meeting as a citizen.

 

Post #471: My Wawa proposal? Look behind the Jades shopping center.

I can’t believe this story still has legs, but here’s a summary of additional news coverage.

Here’s my proposed solution.  You’d like to have something at the back of the lot that blocks sound and light to the greatest extent possible.  You’d like to have something fill that alleyway to prevent it from becoming an attractive nuisance (e.g., a place for high-school kids to hang out.)  It would be nice if the results weren’t too ugly and required no maintenance.  Environmental benefits would be a plus.

You’d get that, less the environmental benefits, by replicating the wall behind the Jades shopping center.  The masonry wall reduces parking-lot sound.  The thick stand of bamboo blocks light, and provides some modest attenuation of sound.

This example is a little scraggly owing to it being a relatively thin stand of bamboo on a north-facing wall.  At the Wawa site, with a wall facing southeast, the entire face of the bamboo grove would be greener.

As the site is under construction, they’d have the opportunity to do this right, corralling the bamboo with a “rhizome barrier” to keep it from spreading.  If Wawa is now of a mind to put up a wall, the incremental cost of a rhizome barrier around  the entire alleyway area is the cost of ditching the rest of the perimeter to 3′, plus the cost of concrete to fill the ditch.

As wildlife habitat, in this climate, my observation is that bamboo is more-or-less sterile.   It doesn’t flower, produce seeds, or produce edible foliage.  The deer won’t even eat it, for goodness sake.  It crowds out almost all competing species.  (Seldom recognized, the leaf fall is toxic to many plants.  I found this out the hard way by using bamboo stems and leaves as mulch — don’t do that.)   It’s basically a toxic invasive exotic pest.

In short, the only reason to use bamboo here is to use one pest (bamboo) to repel another pest (drunken high-school students).

In terms of carbon sequestration, the literature is fairly murky, and mostly focused on harvested bamboo plantations, not a standing grove of bamboo.  My interpretation of the literature is that, in the long run, a standing grove of bamboo of the type shown above stores vastly less carbon than hardwoods would, on the same land.  Bamboo has short-run advantage because it grows fast, but in the long run, you accumulate much more woody biomass with tall hardwoods than with bamboo.

Just a quick calculation to check that.  The largest tree taken down at Wawa was a 42′ stump diameter maple approximately 70′ tall.  Using this publication (.pdf), extrapolating from their table, and realizing that about half the weight of green wood is water, I come up with an estimate of about 6 tons of dry wood, above ground, from that one tree.  Using bamboo pole shipping weights and some guesswork, I’d put the above-ground dry weight of the average bamboo plant of the type pictured above at about 8 lbs.  That would mean it would take about 1500 bamboo plants to equal the above-ground dry wood weight of that one tree.  The entire alleyway in question is maybe 0.05 acres.  At that density, you’d have almost one bamboo culm (stem) every square foot, which I think is at the upper bounds of being plausible.  So one large tree stored as much wood above ground as an entire alleyway full of closely-packed bamboo.  Clearly, the standing hardwoods store more carbon than the standing bamboo, per acre.