MDOT Secretary Rahn Misleads, Dodges in Response to Local Officials

In a letter dated October 19, 2018, Secretary Rahn resorts to misleading characterizations of federal law and dodging responsibility rather than guarantee local officials that Governor Hogan’s plans for I-270 and I-495 won’t require destruction of nearby homes and property.

The letter, a response to a written request from Rockville Mayor and City Council for the Governor to “commit his intentions [that no homes will be torn down] in writing,” does little to address concerns of residents near the highways.

While the Governor and Secretary have clearly become sensitized to concerns about the project’s potential to affect adjacent properties, and while they have both now made verbal promises that no homes will be affected by the project, Rahn’s letter falls short of making any binding commitments to ensure that outcome.

Secretary Rahn’s letter, while striving to sound as though the possibility of taking homes has been ruled out, does not actually contain any binding commitments to make that a certainty. In fact, the letter shrinks back from providing that guarantee. It is also disturbing that letter offers misleading characterizations of the requirements of the National Environmental Policy Act in order to justify continuing to examine options which could result in taking homes and property, and to provide an excuse for why the State declines to remove those options from consideration.

Here are DontWiden270.org’s chief concerns with Secretary Rahn’s letter:

1.     Secretary Rahn variously describes MDOT’s intention to avoid affecting adjacent properties as “our approach” and “strategic objectives”; and describes that it is “looking to implement” changes within the existing right-of-way. Yet approaches, objectives and intended implementations change with major projects such as these and the use of such terms in a letter can hardly be construed as a binding commitment.

It is also worth pointing out that MDOT has been saying for some time that minimizing impacts to adjoining properties is a goal – for example, in this RFP for technical support on the project – but has not taken the steps available to ensure no homes are taken, such as ruling the option out in materials for bidders.  

2.     Secretary Rahn’s stated intention to keep the project within the existing rights-of-way and treat sound barriers as immovable boundaries for the project is encouraging. But it isn’t really clear that MDOT is acting in a manner consistent with Secretary Rahn’s assurances. In a presentation to potential bidders on December 13th, 2017, MDOT poses the question “Right-of-way acquisition – retained by MDOT or transferred? Who assumes cost risk?”  Why would MDOT need to think about this if there was no way the project would extend beyond existing rights of way?

3.     Secretary Rahn’s letter cites the National Environmental Policy Action (NEPA) to imply first that federal law requires MDOT to study alternatives which could require taking homes and property, and second that the law prohibits MDOT from removing options from consideration before the process is complete.

Both implications are based on a serious misrepresentation of what NEPA actually requires. First, according to the Federal Highway Administration (FWHA), the NEPA decision-making process on highway projects does not require looking at “all” options as Secretary Rahn suggests, but a range of alternatives to the proposed action the state has put forward. To quote FWHA, the first two principal elements required are:

• “Assessment of the social, economic, and environmental impacts of a proposed action or project” (such as a proposal to add two to four lanes to a highway); and

• “Analysis of a range of reasonable alternatives to the proposed project, based on the applicants defined purpose and need for the project.”

Under NEPA, the State must assess the impacts of the proposed project and a range of reasonable alternatives to it. However, NEPA does not require the State to assess the impacts of any specific options the State is not considering (other than the “no build” option in which the state does nothing.) The only reason NEPA requires the State to assess the impacts of widening the highways by two or four lanes is because those are projects the State is considering. If the State were not considering them, it would not be obligated to assess their impacts. 

Furthermore, the Secretary's claim that "We cannot commit to any alternative until we fully and objectively evaluate the reasonable alternatives as it would violate federal NEPA requirements" appears to imply the State cannot provide the guarantee that the City of Rockville and residents are seeking, lest it violate federal law. This is rubbish. While it is true that the State cannot leapfrog the process and commit to a specific plan without completing the process, there is nothing under NEPA to prevent it from removing some options from consideration (other than the "no-build" option.)

In short, NEPA does not prevent the State from committing to reject any proposals which would involve taking homes or property. 

It is somewhat disheartening that the Secretary of Transportation would attempt to hide behind a mischaracterization of a federal law in order to justify refusing to guarantee the I-270 and I-495 project will not require taking of homes, businesses or property, or that MDOT’s understanding of the law is so poor that it doesn’t realize what the law requires and allows. But it confirms our conviction that a binding commitment is still necessary in order to put Rockville residents’ minds at ease on the question of widening the highway.

The sum of these concerns boils down to one simple question: if the Governor and Secretary are so confident that the project will not affect any homes, business or property, why do they continue to refuse to commit to it? The Governor could issue a binding directive to MDOT requiring it to consider only those proposals which have no impact on surround properties. Given that this P3 project is under the authority of the Governor, it is within his purview to simply rule out the possibility of property impacts.

Please join us in urging Governor Hogan to back up his promises by putting them in writing. Sign the petition here.

Will Governor Hogan Stand by His Highway Plan Promises?

A substantial crowd came out to the State Transportation Department’s “Road Show” earlier this month, to express opposition to Governor Hogan’s plans to widen I-270 and I-495 to make room for toll lanes. Wow – its fair to say that State officials really got the message, and several of our local elected officials did a great job pressing the Secretary of Transportation on the states’s plans.

Echoing Governor Hogan, Secretary Rahn promised local elected officials over and over again that “no homes will be taken” for the project. But, as DontWiden270.org has pointed out to Governor Hogan, there’s a big gap between those promises and what the State is actually doing and saying.

Bottom line, we need those promises that no homes will be taken to be in writing, in legally binding language directing Secretary Rahn to reject any project proposal that involves taking homes or property. This is the Governor’s project, he’s got the power to ensure our homes and neighborhoods are projected.

So the big question: Will Governor Hogan stand behind his promises, or are they just hot air?

Sign the Petition Asking Governor Hogan to Put His Promise in Writing!

Lots of people came out a Transportation Department briefing to express opposition to widening I-270 and I-495.

Transportation Secretary Pete Rahn acknowledged we were there in force, and it was clear that our presence gave a boost of energy to our Montgomery County Councilmembers and State Legislators, many of whom grilled the Transportation Secretary over the highway plan and in particular, pressed him on the issue of ensuring that no homes, businesses or property will be taken.

The result of the spectacular turnout and energy was tremendous press coverage: 

· FOX 5: Montgomery County Residents Voice Concerns on I-270, I-495 Widening Projects

· ABC 7: Residents Concerned About Impact of I-270 Widening

· WTOP: Montgomery Co. residents fear losing homes over plans to widen I-270 and Beltway

· Mont. Sentinel: MoCo Politicians Express Concerns to SHA Officials

· Bethesda Magazine: M-DOT Secy Promises No Homes Will be Razed for Toll Lanes

· MyMCMedia: MDOT OFFICIALS ON WIDENING I-270: ‘WE’RE NOT GOING TO TAKE YOUR HOME’

 
The attention put Secretary Pete Rahn on the defensive, promising repeatedly that no homes will be taken. Several of our local representatives zeroed in on moving past promises and getting the commitment in writing. That’s exactly what DontWiden270.org has been pushing for since Labor Day, so we are glad to see the ask getting traction.

We also know that opposition to widening is the majority view here in Montgomery County. Friday, the Washington Post published a poll regarding Governor Hogan’s highway plans, saying “The centerpiece of the Republican governor’s proposal — a $9 billion project to add four lanes apiece to the Capital Beltway, Interstate 270 and the Baltimore-Washington Parkway — is even opposed by voters in the Washington suburbs, whom the plan is supposed to help. More than half of voters in the D.C. suburbs prefer to invest in public transit rather than building more roads.”

Back to the hearing: One of our State Delegates told me directly after the briefing that having the support of her constituents in that hearing room made a huge difference; she could feel our strength behind her and it made her even more determined to keep the pressure on the Transportation Secretary with her questions.

And there were a lot of questions. Before the briefing, Don’tWiden270.org sent a letter to all the elected officials from Rockville with a list of things we’d like to ask State officials, and we were really pleased with the results. A few highlights:

• State Senator Cheryl Kagan really zeroed in on Secretary Rahn’s comments about widening and no homes being taken down. At one point he responded to her by saying “No homes will be taken down,” but a few minutes later said “We have no plans to take any homes.” Senator Kagan seized on that pointing out that plans can change and his going back and forth on the point adds to our concerns. She got him to repeat several times that no homes will be taken. Of course, we aren’t going to take him or the Governor at their word. We need them to put it in writing. You can watch Senator Kagan’s recap here.

• MoCo County Councilmember Sidney Katz asked about State Transportation Secretary Pete Rahm to about issuing a binding statement guaranteeing that no homes will be torn down to make room for Gov Hogan's widening proposal.  Councilmember Katz also asked about the problem of increased air pollution and raised the concern that widening roads doesn’t solve congestion. (Note, I was particularly pleased to see DontWiden270.org logo on the printout that the Councilmember was referring to as he asked questions.)

• Delegate Marc Korman had a wide range of questions, but he really focused in on the State’s dismissal of local concerns, noting that the Governor was talking about specific options well before the State consulted local citizens, governments and other stakeholders. You can view that video here.

• Delegate Susan Lee followed up on several of these points, emphasizing that her constituents in Gaithersburg have been voicing their concerns about the project. Delegate Lee was the lawmaker who thanked all of us for turning out and for our support at the briefing.

So thanks again for getting involved, and if you haven’t signed the petition asking Governor Hogan to put his promises in writing, please do so now.

Governor Hogan: Promises Won't Protect Our Homes

An open letter...

The Honorable Governor Larry Hogan
100 State Circle
Annapolis, Maryland
21401-1925

Dear Governor Hogan,

Thank you for speaking with me at the Gaithersburg Labor Day Parade about the I-270 and I-495 project. I was very encouraged to hear you say that “Not a single house is ever gonna be taken down” to make room for widening of the highways. I was further encouraged that you repeated the sentiment to news organizations WTOP and www.mymcmedia.org/.  

However, the official documents and statements from your Administration, specifically the Maryland Department of Transportation (MDOT) and the State Highway Administration (SHA), leave wide open the possibility that private property could be seized and homes paved over.

A slide presented to project bidders during a December 13, 2017 “Industry Forum” highlighted the question of who assumes the cost risks of “Right-of-way acquisition.” MDOT explains this as the process of seizing property, assessing its value, negotiating over compensation and relocation. Clearly from the State’s perspective, “right-of-way” acquisition includes the taking of private property to make room for transportation projects. How do we know that this won't be used to take homes? 

Even the statement issued by SHA on Tuesday, September 4th in response to questions about your “Not one single house is ever gonna be taken down” undercuts your promise. The SHA statement says that the state’s “approach” is to develop options “within the existing right-of-way.” The statement does not rule out property seizures or paving over homes, since it characterizes the state’s position as an “approach” which does not guarantee that’s what will happen. In addition, if the state’s intention is to stay within the right-of-way, why has right-of-way acquisition been a topic it has needed to discuss with bidders, and why is it so important to figure out “who assumes the cost risk?”

Governor Hogan, promises won't protect our homes. If you mean what are saying, make it official: direct MDOT and the SHA to inform bidders that proposals that involve seizing property or tearing down or moving existing homes will not be considered. 

Thank you for your time and attention, and please reply to let me know what you plan to do.

Peter Altman
(street address withheld from web version)
Rockville MD 20850