My questions regarding the 410/Flower SHA-Takoma Park MOU

Ownership and responsibility for Maryland state routes 410 (Philadelphia and Ethan Allen Avenues) and 787 (Flower Avenue) in Takoma Park has been the subject of extended public discussion and city-State Highway Administration (SHA) negotiation. Now the city and the SHA are considering a memorandum of understanding (MOU) that would seal a deal. The Takoma Park City Council is slated to discuss the draft MOU at its Tuesday evening, February 21, 2012 meeting.

Please consult the agenda backgrounder prepared by city staff and September 26, 2011 briefing materials on negotiations, prepared by city staff at an earlier stage.

I’m a council newcomer and have quite a few questions about the proposed MOU. I’m putting them out for comments, suggestions, and correction of any misconceptions I might have. I’ve grouped them according to the nature of the question. Here we go:

Drafting questions

1. How, precisely, is it that “the Perpetual Maintenance Easement… are [sic] a necessary accommodation for the traveling public, and promote the health, safety and general welfare of the citizens of the State and Montgomery County”?
2. A WHEREAS clause states, “if a provision of this Agreement provides notice and a comment opportunity, the CITY will provide its comments within ten (10) business days of receipt of notice of the proposed action. The SHA will review the CITY’s comments and respond prior to commencing any action.” This timing appears not to be consistent with the “seven (7) business days”granted for comment on IV. Utility Permits and VI. Signs. Should this language not be consistent?
3. Could the city-comment, SHA-response provisions not be included explicitly in V. Signalization and VII. Pedestrian Crosswalks, (separately) preferably with a provision that the SHA respect the city’s views and preferences?

Financial questions

4. The MOU states, “SHA will provide the CITY the amount of $696,000.00 as a contribution towards the CITY’s repairs to Flower Avenue.” Noting that the MOU mandated payment would be “a contribution towards the CITY’s repairs” rather than payment of the full cost of the city’s planned Flower Avenue green street and of roadway maintenance, What is the full estimated cost of the city’s planned Flower Avenue green-street and of on-going right-of-way maintenance? Does that estimate include stormwater management upgrades?
5. What benefit to the city is there in conveying ownership of the 7800 Block of Carroll Avenue to the state, whether direct or measured in avoided expense liability?

Operational questions

6. The MOU states, “The SHA will determine, in its sole and absolute discretion, the maintenance schedule and implementation of routine maintenance to the MD 410 Easement Area.” The SHA has admitted that they have not maintained Route 410 to standards. What MOU assurances can we include that future maintenance will meet standards and to protect against a diminution in standards? What MOU assurance can we craft that SHA practices will conform to Takoma Park standards, for instance involving tree trimming and snow removal? The draft MOU text refers to “roadway patching.” Could this be modified to “roadway paving, resurfacing, and temporary patching”?
7. For Utility Permits, Signalization, and Signs, the MOU appears not to require that the SHA pay any heed to city comments. How is this acceptable?
8. What mechanism can we create for the city to initiate, and have a reasonable expectation of positive response to, requests to the SHA related to Signalization, Signs, Pedestrian Crosswalks, and Sidewalks?
9. What assurance can we craft that permitted roadway work performed by, or under contract to, utilities that may include Washington Gas, WSSC, and Pepco is performed to the highest standards, in consultation with the city?
10. Could we add to IX. Stormwater the words in [[double-square brackets]], “SHA will remain responsible for managing stormwater on its roadways [[and at curb-cuts]] in addition to its existing stormwater management facilities, including pipes and inlets.”

Technical questions

11. A WHEREAS clause states, “the CITY and the SHA each own certain portions of a roadway known as Maryland Route 410, including Philadelphia Avenue from Chestnut Avenue (Mile Point 5.00) to Cedar Avenue (Mile Point 5.20); Philadelphia Avenue from Maple Avenue (Mile Point 5.29) to Carroll Avenue/MD 195 (Mile Point 5.63); and Ethan Allen Avenue from Elm Avenue (Mile Point 6.16) to Carroll Avenue/MD 195 (Mile Point 5.63).” How could two entities own particular portions of the roadway?
12. Noting the language, “VIII. Sidewalks (a) Installation of new sidewalk along State highways where none exist today may be eligible for construction funding under the provisions of SHA’s Sidewalk Retrofit Program. Once constructed and in accordance with the Annotated Code of Maryland relating to Construction and Maintenance of Sidewalk (8-630(6)(i), the maintenance and repair of sidewalk would then become the responsibility of the political subdivision in which the sidewalk is located.. [sic]”: Why could the Green Street sidewalk on the north side of Flower Avenue not be constructed with SHA funding with maintenance responsibility assumed by Montgomery County?
13. Is there a particular reason council members did not take part in negotiations with the SHA?
14. Why is there no statement for the SHA that mirrors “This Agreement shall inure to and be binding upon the City of Takoma Park, its agents, successors and assigns”?

Decision questions

15. Why is it necessary for the state to own all of Route 410 in order for the SHA to maintain the full extent of Route 410 in Takoma Park?
16. Can, and should the city and the SHA not, separate out handling of the Flower Avenue ownership and upgrade?
17. What would be the consequences of simply declining to enact an MOU?
18. Given the contention that that SHA will not agree to never widen MD 410, could we include language that “the SHA agrees not to undertake, without the full consultation and consent of the City of Takoma Park, any initiative within the next 99 years that would widen Route 410 in Takoma Park”?

I wish to acknowledge comments and suggestions from individuals who include Terese Bouey, Lorig Charkoudian, Heidi Hessler, Ann Hoffnar, Andy Kelemen, Lorraine Pearsall, Rosemarie Sabatino, Ray Scannell, and Josh Wright.