Whither The Flea Market - Updated

As the Hine Development Moves Forward, Future of the Private Arts & Crafts Markets Unresolved

The Saturday Flea Market in the Hine School parking lot. Photo: Andrew Lightman

Most visitors hardly give a thought to the complex arrangements that undergird the wonderful weekend arts and crafts market at Eastern Market. However, the development of the Hine School property is fast approaching. Once the fences go up, a significant portion of the space now occupied by weekend vendors will disappear. What is the best strategy to preserve this unique Capitol Hill institution in the interim and long term, many ask.

The Three Flea Markets

The term “the Flea Market at Eastern Market” is a bit of a misnomer because there are actually three distinct flea markets: two private and one public. Barry Margeson, the Eastern Market Manager appointed by the DC Department of General Services (DGS), manages the vending on the grounds of the Eastern Market, on the 200 Block of Seventh St. SE and on the plaza of the adjoining Natatorium.

The remainder of the weekend vending occurs on the parking lot of the old Hine School. On Saturdays, the vending operation at Hine is managed by Carol Wright of Washington Arts, Antiques, Crafts & Collectible Associates (WAACA). On Sundays, Michael Berman organizes vendors under the auspices of Diverse Markets Management (DMM). Both these private corperations rent the parking lot under contracts originally negotiated with the DC Public Schools, originally to provide funding for the Hine School Marching Band. These arrangements have continued on a month-to-month basis in the wake of the property being surplused by the school system and let out for development.

Both WAACA and DMM are private, for-profit corporations. Their managers, Berman and Wright, quite understandably, would like to continue their concessions during the construction of the Hine School development; and, after completion, on the newly reconstructed C Street SE.

What About The Construction?

If all goes according to plan, Stanton-EastBanc will commence construction on the Hine School Development in July of 2013. While there will be no displacement of the vending operations conducted by the city around the Market and on the 200 block of 7th Street, both WAACA and DMM will lose their operating space.

On August 27, 2012, Wright and Berman wrote the Deputy Mayor for Planning and Economic Development. They asked the Mayor to close the 300 block of 7th St. SE by executive order on weekends, and permit them to relocate there during the period of construction. They attached a letter from Stanton-EastBanc in support of their missive.

The Deputy Mayor sent a letter to ANC 6B asking for their advice on the matter. The ANC is set to consider the issue at their October meeting. There is no time-line for DMPED’s consideration of Berman’s and Wright’s request.

Wright and Berman’s request for the road closure by executive order is not without precedent. The 200 block of 7th was closed on weekends by executive order in the wake of the Eastern Market fire, and remains so today.

How to Close a Public Road?

According to the District Department of Transportation (DDOT), public roads may be closed by private individuals or District agencies either for Special Events or Public Markets by either application or by executive order. To close a street under a special event closure, the applicant must make his/her case 120 days prior to the Mayor’s Task Force for Special Events. The event is vetted through 13 different agencies and reviewers that include among others Metropolitan Police (MPD), DC Emergency Medical Services, DC Fire Department, DDOT, the Department of Consumer and Regulatory Affairs, DC Housing Authority, the Washington Metropolitan Transit Authority, the Secret Service and others.

Deliberations deal with requirements for a police presence, bus re-routing and any other public safety considerations. Once the event is approved the applicant has to obtain a Special Event License from DCRA, Public Space Permits from DDOT, crowd control from MPD... etc.

A second type of road closure is used for Farmers and Public Markets. This permit is issued by DDOT alone. The applicant submits a street closure request for review. The application is sent for review by MPD, DDOT traffic engineers, the ANC, DDOT inspectors and the Fire Marshall. In the case of Public Markets, i.e. non-food vending, the applicant must obtain the support of 90% of the adjacent business owners. DDOT makes a decision on the permit only after all these hoops are jumped.

A Special Event can also be designated by a Mayor’s Order. Such an executive order can be used to designate a street for vending or any other activity. This short circuits the usual process. In such cases only DDOT and MPD get involved to address traffic and public safety concerns. Mostly importantly, no consultation of neighboring brick and mortar businesses is required.

So, it is clear that a private party could apply for permission to close a street in several different ways. However, the situation in the area surrounding the Eastern Market is further complicated by a 1999 law governing commercial activities in its proximity.

The Eastern Market Special Use District

Title 37 Chapter 1 of the DC Code begins by defining the “Eastern Market Square” as the area between the south curb of North Carolina Avenue, S.E., and the north curb of C Street, S.E., and between the west curb of 7th Street, S.E., and the building line with the Capitol Hill Natatorium.” Continuing, it creates an “Eastern Market Historic Special Use District” out of the “public land near Eastern Market Square including but not limited to the playground and parking lot of Hine Junior High School and the Capitol Hill Natatorium Plaza.” Arguably, the streets abutting the Market are certainly such public land.

“In order to maintain the theme and character of Eastern Market,” the law states:

"any District of Columbia agency having jurisdiction over public property, including, but not limited to, the property under the jurisdiction of the District of Columbia Public Schools and the Department of Recreation and Parks, in the Eastern Market Special Use Area shall not permit retailing on such public property, except as generally is consistent with the activities at Eastern Market and with the prior written consent of the CPMO, after the review and comment of the market manager and the EMCAC."

All “contracts in place on August 1, 1997,” however are exempt from this provision. (To clarify matters, it is important to note that the “CPMO” (Chief Property Management Officer) refers to the agency director of an earlier incarnation of the now DC Department of General Services (DGS). “EMCAC” is the Eastern Market Community Advisory Committee established by that same statute as the consultative body of market stakeholders.)

So, while a private party may usually apply for a street closure, in the case of the Eastern Market Special Use Area, matters must come before the EMCAC and the current Director of DGS retains what is in essence a veto. An exception might be made if the contracts between the DCPS and the private markets meet the provision’s exemption, certainly a task for lawyers.

It is important to note that this article does not take into account any statutory changes contemplated under the proposed Eastern Market Legislation introduced by Ward 6 Councilmember Tommy Wells. The fate of this bill at time of this article remains uncertain.

If the laws governing the relocation of flea market operations during construction appear convoluted, their complexity is dwarfed by the overlapping agreements that will govern activities on the reconstructed C Street once the Hine project is complete.

Arrangements for the New C Street

Under its Land Disposition and Development Agreement (LDDA) with the District, Stanton-EastBanc has agreed to rebuild C Street along the lines envisioned in the L’Enfant Plan, and maintain said roadway during the terms of its lease with the city. Under the agreement’s term sheet,

“C Street, SE: the District will ground lease to the Developer under D.C. Code 10-801(b)(8)(C) the former 700 block of C Street, S.E. to enable the Developer to reconstruct C Street, S.E. for the benefit of the South Parcel and North Parcel.”

In other words, C Street is a private street. The developer is on the hook to build it, maintain it and pay rent on every square foot.

Once it is completed, the usage of C Street and adjoining adjacent pedestrian plaza is the subject of a complex set of agreements.

To begin with, the new C Street clearly resides with the Eastern Market Special Use District as originally envisioned, since the Hine School is explicitly mentioned in the statute. However, unlike most District roads, the reconstructed C Street will be privately owned. It is therefore unclear whether EMCAC or DGS will retain any authority over vending on its surface or that of its adjoining plaza; because the statute clearly limits their control to retail activities taking place on public property. [Updated]

Activities C Street are also mentioned in the LDDA:

“(the) Developer agrees to enter into the mutually acceptable leases with market managers to operate weekend public markets on New Street for as long as such markets are practical for, and desired by, the community, District and Developer.”

The LDDA does not define the term “market managers,” nor does it establish any exclusive role for either DGS or particular private interests

The usage of the new C Street is additionally the subject of Memorandum of Understanding (MOU) between Stanton-EastBanc and ANC 6B. This MOU was negotiated as part of the process of rezoning the Hine parcels, the so-called Planned Unit Development (PUD), which has not yet been finalized. Under the section of the MOU entitled “Weekend Vendors Market, the usages of C Street are established as follows:

“SEB [Stanton-EastBanc] will make portions of C Street and the plaza…available to the Manager of the Eastern Market Trust, or another market manager to operate Saturday and Sunday vendors markets from 8:00 am to 6:00 PM every weekend day of the year that such manager desires to operate a market there. SEB shall negotiate a reasonable rental fee to the Market Manager to help defray SEB’s costs associated with maintenance, repair, and replacement costs related to the space used by the market.”

In the absence of legislation establishing an Eastern Market Trust, Stanton-EastBanc retains the right to contract with a private market manager to run the weekend flea markets on its property. In is important to note, Stanton-EastBanc's arrangements are not be subject to either review by EMCAC or DGS approval, because the new C Street is a private street. Moreover, the city is required under the LDDA to facilitate the permitting of activities programmed by Stanton-EastBanc on the premises of its new development.

On August 22, Stanton-EastBanc signed a Letter of Intent with Berman and Wright. Under its terms, the managers of the current private flea markets are granted the first right to negotiate a three-year lease with the developer to rent its space for the operation of their markets. The parties have agreed to use “commercially reasonable expectations” in their negotiations. The talks are limited to no more than six months beginning any time after January 2, 2013; after which the developer will be permitted to seek other partners. The letter also contains a provision that voids the agreement in the event an Eastern Market Trust is established by the DC Council prior to July 1, 2013.

The agreement also obliges Stanton-EastBanc to support Berman and Wright’s application for an interim street closure of the 300 block of 7th Street during construction. In return, Berman and Wright dropped their very vociferous opposition to the Hine PUD.

Towards a Future Market

In the absence of new legislation, authority over the future of private markets remains at best unclear, and at worst the grist of future law suits. While Stanton-EastBanc has thrown its considerable weight behind the suit of the current private market managers, Berman's and Wright's operations will find no temporary home on lower 7th Street without clear action on the part of the District executive in consultation with the EMCAC, since any private application for a road closure would have to weather considerable bureaucratic and community hurdles.

As for the longer term, the rules of the Eastern Market Special Use District do not appear to apply to C Street SE, because it is a private thoroughfare. Vending on the Hine site is therefore unlikely to be subject to DGS veto or EMCAC consultation. Hence, provided agreement can be reached with the developer and in the absence of new legislation, Berman and Wright's future prospects appear rosy. Again, this is likely to be a matter of ongoing disputation. Needless to say, this will not be the last story the Hill Rag prints on the subject.

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