Saturday, March 29, 2014

Affordability, Part 2: Opportunity Costs and "Highest and Best Use"

One reason I like to do outreach on zoning issues is that I learn a lot from these forums. Each neighborhood has its own set of development issues -- some are unique; others are variations on common themes or harbingers of things to come. And every neighborhood has a wealth of local knowledge, eagerly shared by people who have watched and analyzed what's been going on around them. The social scientist in me -- I'm a former college professor with an interdisciplinary background in law and society -- is fascinated by the variety of ways in which the same rules play out differently across the city.

This post was inspired by Ward 1, where "condo-ization" puts single-family housing stock and neighborhoods at risk.

"Single-family homes" can (and do) accommodate a variety of different types of households -- nuclear families with or without kids, multi-generational families, groups of roommates, boarders, live-in caregivers, and renters of accessory units. Over the course of its lifespan, the same house may move fluidly between these various types of living arrangements.

What makes condo-ization problematic is that, once a property ceases to have a single owner, this fluidity is lost. Suddenly, even though it's still one building, the house is no longer one property. And finding a single owner who is willing and able to re-acquire all the units post-conversion (probably over time and with the possibility of holdouts) seems unlikely.

In neighborhoods like Mount Pleasant and Lanier Heights, residents have seen that condo-ization is pushing housing costs up -- not down. Rent in a group house is affordable to recent college grads and other newcomers who wouldn't have the financial means to live in the same house if it were divided into condos selling for upwards of $500,000 each. Increasingly, condo conversions are effectively pricing older homes in these communities out of the single-family market. They're also changing the look and scale of historic rowhouse neighborhoods by incentivizing pop-ups and pop-outs.

In general, the most affordable housing is in older buildings. Which means that when older residential buildings get torn down and replaced by newer residential buildings, the net result is likely to be increased housing costs. Basically, it only makes sense to tear one building down and build another to serve the same function if the replacement building will produce substantially more income. When bigger buildings replace smaller buildings, part of the increase in income comes from the fact that there are more units to sell or rent, but it's also the case that a new building (or unit) will most likely command a higher rent or sales price than an older one -- in part, just because it's new but also because, from a development perspective, projects that command higher rents are more attractive, especially in places where land values and existing properties haven't yet realized the full market potential of the area. That's why seemingly every new multifamily project in DC is a"luxury" condo or apartment building featuring lots of smaller units.

Subdivision is a more ambiguous phenomenon than teardowns -- it can happen for a variety of reasons (e.g. if there's no market for single-family homes of a particular size in a particular area) and its economic consequences may vary. In areas where single-family homes are scarce and in high demand, downzoning (and/or other restrictions) may be necessary to preserve existing housing stock. In the past, some rowhouse neighborhoods relied on historic designation to protect neighborhood scale and character. But, increasingly, historic preservation hasn't proven sufficient -- which, presumably, is one reason why Georgetown requested (and was granted) a reduction in allowable building heights (from 40 to 35 feet in rowhouse zones) in the ZRR.

There's a broader issue here -- and it's not limited to historic neighborhoods or areas, like Lanier Place, where the existing zoning is out-of-sync with the built environment. In general, once OP starts loosening zone definitions, new ways to use land are put in competition with existing uses. And where the existing uses are single-family homes, those will quickly cease to be the "highest and best" (i.e. most lucrative) use of the property. So the conversions begin -- and, as Ward 1 residents have pointed out, some of those conversions will not be reversible.

If we value single-family housing (or if we want garden apartments, or if we want neighborhood-serving retail, or any other relatively small-scale type of development), then we need to have restrictive zoning that is consistently enforced. Zoning that restricts the use of some parcels to single-family housing (or to some other specific use) doesn't have to mean suburbanization -- different types of zones can be located in close proximity to each other in the same neighborhood. The issue is limiting the range of potential uses in competition for the same property, so that market forces don't overwhelm desired types of development.  Which, after all, is the raison d'etre of planning and zoning.  

Thursday, March 27, 2014

Of Needles in Haystacks and Pigs in Pokes

After a lot of thought, I've come to the conclusion that the project of streamlining DC's zoning code and rendering it more user-friendly needs to be separated from the process of making specific policy changes. The blurring of this distinction (in phrases like "updating the code") has created a situation where a host of fairly significant policy changes are buried within 980 pages of convoluted text. 

In some cases, the policy changes are being consciously made and deliberately obscured. There's no doubt, for example, that the Office of Planning realizes that the ZRR will significantly upzone parts of the new downtown and replace the PUD process in those areas with a developer-controlled market in density credits. So when OP chooses not to mention these changes in its outreach materials -- which include a page entitled "Downtown: Main Proposals" -- it's fair to conclude that our city planners don't really want to publicize the facts that they're raising heights by 40 feet and eliminating restrictions on FAR in these areas, and that if there is any money to be gained by auctioning off additional density downtown, it'll line the pockets of developers rather than contribute to the city's infrastructure, provide neighborhood amenities, or be used to further policy objectives like affordable housing.

In other cases, such as "use permissions," a policy decision has been consciously made (let's have fewer and broader use categories), but the implications of that decision don't seem to have been fully understood. At least, that's a generous interpretation of OP's claim (in the same outreach packet) that it is "not proposing to change use permissions" but just to update the code by removing outdated uses like the "penny arcade." The current code distinguishes among different intensities of use. So, for example, it makes a distinction between the zones in which a neighborhood-serving store or specialty store could be located and a zone in which a department store would be allowed. Under the new code, it's all just retail. (Unless you're selling food & drink, cars, guns or porn). That's a substantive change in use permissions whether OP realizes it or not.

Long story short, OP can't be trusted to identify what is changing and what is not. And there's no way that the Zoning Commission can make an informed and rational decision about the new zoning code if it proceeds from the assumption that it basically has to swallow the ZRR whole or spit it out.

So the challenge is to figure out how to move forward in a way that promotes intelligent decisionmaking. Here's my suggestion:

The Zoning Commission should proceed (as it did with the Green Area Ratio and a few other provisions that were originally part of the ZRR) by making policy changes to the old code on an amendment-by-amendment basis. In other words, make the decisions about where/whether/how to authorize corner stores or accessory apartments, or to change parking requirements or to expand and upzone downtown. Do it in a way that produces clarity about what is being changed, that treats each change as a separate question, and that creates a context in which we can have a relatively thorough and substantive debate about what changes should be made and how.

Once the substance of the code is settled, then the code can be streamlined and rendered more user-friendly (by people who actually have experience doing that kind of work and who know how to do it well). Since OP has already proven that it's not up to the task, this is a project that should be outsourced. Consultants should report to the Office of Zoning (the Zoning Commission's administrative staff who, I'd note, received kudos from developers' lawyers and neighborhood activists alike at the same oversight hearing earlier this month where OP's work was savaged) and their instructions should be to make the code (in both its print and online forms) more user-friendly -- without changing its content. In any situation where the consultants feel that a drafting choice has substantive implications, the issue should be referred to the ZC for guidance. 

The stakes are really high here.  We're talking about the rules that will govern land use citywide for decades.  We need to get it right -- not just to get it over with.  And getting it right can be done in a way that doesn't hold policy changes hostage to a massive redrafting effort, 
but that will leave the city with a new code that actually represents a substantial improvement over the old one.

Wednesday, March 19, 2014

How the ZRR would affect public input regarding development decisions

Under DC’s current zoning code, most development decisions fall into one of three categories – those that are matter of right, those that require special exceptions, and those that require variances.

Matter-of-right decisions are made unilaterally by the property owner.  As long as the owner’s project falls within the legally-established parameters of the zone – the building fits within the zoning envelope, its location on the lot is consistent with yard and setback requirements, the use is expressly authorized – then no public input or notice is involved.

Other decisions require permission.  In each zone, the code lays out some restrictions that may be waived by special exception and provides standards (which can be generic or specific) that must be met to justify such a waiver.  It also provides a Board of Zoning Adjustment (BZA) process for evaluating whether (and/or how) the project meets those standards.  This process gives neighbors advance notice of the project, involves a public hearing in which they can testify, and is one in which ANC input, as expressed through an official resolution, must be accorded “great weight.”* Typically, what happens in a special exception case is that the BZA listens to all parties and helps to craft a set of project-specific conditions that will enable it to grant the owner’s request without sacrificing the interests of neighboring property-owners.  It’s important to remember (and the ZRR rhetoric sometimes obscures the fact that) the special exception process is designed to facilitate -- not prohibit -- zoning relief.  Special exceptions are almost always approved.  (Which doesn’t mean that the process is pointless.  At a minimum, the special exception process gives property owners a powerful incentive to talk through their plans with their immediate neighbors, hear their concerns, and try to reach mutually-agreeable solutions.)

While the norm in special exception cases is that permission will be granted (subject to conditions), the norm in variance cases is that permission will be denied.  That’s because variances allow a type of development the zone is attempting to prohibit -- which is why the standard for granting a variance is so high.   A variance may be granted only when some peculiar attribute of the property creates a situation in which compliance with the zoning requirement would create an exceptional and undue hardship for the owner and when waiver of the requirement would not be detrimental to others or inconsistent with the intent and purpose of the Zoning Regulations.  Because variances are granted based on unique circumstances, they aren't meant to serve as precedents for other sites or projects.

There are also a few planning processes/tools that foster public input – most notably, PUDs, campus plans, and overlays.   In theory, the planned unit development (PUD) process was designed for larger development projects.  PUDs typically involve the simultaneous waiver of multiple zoning restrictions and often include project-specific upzoning requests (“map amendments”).  The PUD process also requires notice and public hearings, but the decisionmaker in PUDs is the Zoning Commission (ZC) rather than the BZA.  Once again, this is a process in which ANC resolutions are given great weight
Overlays, which involve localized modifications of generic zoning to achieve specific neighborhood objectives (e.g. to protect trees and slopes, or to prevent the conversion of residential property to other uses, or to create a neighborhood-serving retail district), have been eliminated in the ZRR.  The provisions of existing overlays have been (somewhat ineptly) incorporated into the new code as distinctive zones, but it appears as if the opportunity to create new overlays has been eliminated.  Since overlays are one of the most powerful ways neighborhoods have found to solve local problems and to preserve the characteristics they value, their elimination would represent a major loss of public input into the planning process.   Under the current code, overlays have generally been initiated by neighborhoods and adopted by the Zoning Commission as text amendments to the zoning regulations.
To give you a sense of how the ZRR would affect the range of decisions in which ANCs, neighborhood associations, and local residents have the opportunity to provide input, I’ve made a chart that looks at various development requests that currently trigger a public process and contrasted how those decisions are made now with how they would be made if the ZRR were adopted.


Residential development of substandard-size lot
matter of right
Conversion of a single-family home into an apartment house in an R-5-A zone

special exception

matter of right
Rental apartment
located within a home
special exception
matter of right
Rental apartment
located in a garage or other outbuilding

matter of right for pre-existing building;
special exception for new or enlarged building
Two-story garage or other outbuilding
matter of right
Home occupation located in a garage
matter of right
Home occupation and rental apartment on the same residential lot

special exception

matter of right
Habitable penthouse atop a single family home

matter of right if
  • no more than 10 feet tall
  • no more than 1/3 of the roof's footprint
  • set back from the street/alley by a distance equal to its height and from non-abutting side walls by a distance equal to 1/2 its height
Retail or service business on a residential lot
matter of right if
  •  home occupation or
  • food store on a corner lot in a rowhouse zone
  • replacing an existing store
special exception for retail, general service, arts creation, or eating & drinking establishment use on a corner lot or in an historically non-residential building in a rowhouse zone
Use not authorized in the relevant zone
approval of the Zoning Administrator**
Reduction of on-site parking requirements near transit
25% reduction = matter of right if building is
located within 800 feet of a Metrorail station entrance, and not within 800 feet of a residential zone

> 25% reduction = special exception (for a non-residential building), variance (residential building), or PUD process
50% reduction = matter of right for any type of building to be constructed in an apartment or mixed use zone on a site that is within 1320 feet of a major bus route or 2640 feet of a Metro rail station.


> 50% reduction = special exception
Elimination of on-site parking requirements

variance or
PUD process
matter of right if      
  • downtown (any use) or 
  •  single-family home without alley access or 
  •  multifamily building with fewer than 6 units
Elimination of restrictions on FAR in C-3-C zones newly-defined as part of downtown

PUD process
matter of right, if development is residential
by purchasing density credits from a developer-controlled market
  [[N.B.:  This chart is a work in progress.  It isn't an exhaustive list -- just changes I've run across thus far.  And because I've never been an ANC Commissioner, I'm not familiar with the range of development cases they routinely encounter (although clearly it varies from Commission to Commission).  If you find any errors, want to suggest any additions, or wonder whether the rules regarding a type of development decision I haven't discussed are being changed, please feel free to email me -- -- and let me know.  I'll be continually updating the chart, so check back here for the most up-to-date version before citing, circulating, or relying on the chart.]]

One final point.  The ZRR proposes a new category – “conditional matter-of-right.”  On one level, matter-of-right is always conditional – e.g. you can build whatever structure you want as long as it fits within the parameters of the zoning.   So it doesn’t really seem like a distinct category – and it certainly isn’t one that involves any public process.   It’s still matter-of-right.

On another level, it’s worth pointing out that the “conditions” associated with this new variation of matter-of-right are not analogous to the conditions imposed through a special exception.   Here are three crucial differences:

(1) In a special exception proceeding, neighbors are notified, plans are made public, and conditions are discussed and negotiated prior to the requested project being built. Objections can be made (and solutions or compromises hammered out) before development begins. With conditional matter-of-right, the property owner builds the project without neighborhood input. The neighbors are presented with a fait accompli and the logical/likely response to their objections will be “so sue me.”

(2) In the conditional matter-of-right scenario, nothing is really contingent upon the conditions being met. By contrast, in a special exception proceeding, permission to build and/or operate a facility is conditioned on compliance. Failure to seek a special exception or to comply with the terms on which one has been granted can lead to denials of building permits, refusals or revocations of certificates of occupancy, or even the dismantling of structures that are out of compliance.

(3) The BZA, which is a deliberative tribunal, grants special exceptions. There's a transparent public process that leaves a clear paper trail -- BZA (and ZC) orders spelling out conditions can be easily accessed online and are searchable by location (square and lot number).  By contrast, to the extent that there’s any enforcement of matter-of-right conditions, that job would be left to DCRA -- a notoriously unreliable administrative agency whose decisionmaking tends to be opaque.  If you're dealing with DCRA, answers to questions like who made a decision, why, and based on what information are probably only available through FOIA requests or litigation.  (And, for what it's worth, when I testified at DCRA's budget hearing last year, neither the agency nor the Council's Committee Chair seemed to have any sense that changes in the zoning regulations could lead to a major increase in DCRA's workload.)

To me, the bottom line here is that, at a point where we're moving toward increased density, intensity, and diversity of land use, we're also losing opportunities for meaningful public input on development decisions that will significantly affect the character of our neighborhoods and our city.

*The BZA need not follow the ANC’s recommendations, but it must respond, in writing, to any relevant concerns raised by an ANC resolution.  In other words, great weight doesn't involve deference to neighborhood opinion; its function is simply to ensure that agencies listen to -- and actively consider -- the officially-expressed preferences and interests of the communities that will be most directly affected by their decisions.

** The Zoning Administrator (ZA) is a DCRA employee.  The ZA's job is to verify compliance before signing off on permits.  No hearing (or notice) is required prior to the decision of the ZA and the only paper trail is the permit itself.  

Monday, March 17, 2014

Downtown: That's Where the Action Is

As I said in a previous post, I think that the most publicized aspects of the ZRR (accessory apartments and corner stores) are basically sideshows.  Accessory apartments and corner stores aren’t going to transform DC – we’ve already got thousands of the former and hundreds of the latter.  These aren't changes that are being pushed for by the building industry.  DC's developers aren't really interested in converting your garage into an apartment or building out the ground floor of your rowhouse for a retail tenant.  Nor does it take 7 years or 980 pages of text to loosen the restrictions on accessory apartments or corner stores.  OP could get that job done simply by amending a few sentences in the existing code.

So what’s really going on?  While the small minority of DC residents who are tuned into the ZRR are, understandably, focused on how it will affect their neighborhoods, major giveaways are in the works downtown.

First, the area treated as downtown is being significantly expanded. As the graphic below indicates, it will triple in size.

         [Source:  Office of Planning Setdown Report on Subtitle I]

Secondly, a number of the areas newly incorporated into downtown would undergo significant upzoning.  Limits on FAR are being removed for residential projects and height limits are being raised (e.g. from 90 feet to 130 feet).  This effectively doubles the matter-of-right development capacity of some parcels.

Meanwhile, nine of the eleven downtown zones are exempted from inclusionary zoning requirements and all downtown zones will be exempted from parking minimums.  I'll also throw in the mix the fact that the Zoning Commission agreed to eliminate recreational space requirements a few years ago on the grounds that it would be unduly burdensome on developers to require them to provide both affordable housing and recreational space for tenants.  Of course the end result downtown is that developers aren't required to provide either.

No wonder developers and the people who work for them (consultants, architects, RE lawyers) support the ZRR.  It's a windfall for downtown developers.  But "allow more, require less" is a short-sighted and expensive strategy from a public policy standpoint.  If we want to create livable downtown neighborhoods, then we need to add infrastructure and amenities as we add density. And the people who profit from increased density should be required to internalize a significant share of these infrastructural costs.  

Saturday, March 15, 2014

Weekend Reading: Parking Studies

Last July, the Transportation-Land Use Connections Program at MWCOG gave DC's Office of Planning a grant that would partially fund a study of parking demand in multifamily residential buildings. In theory, this study is supposed to inform DC's zoning update.  But, of course, the recommendations in the update have been made prior to any such study.

On the one hand, it seems like studying a situation before you try to regulate it is just common sense. And that's what other, more professional, planning departments elsewhere have done.  See the examples below for the kinds of data that NYC and Portland collected and analyzed before proposing changes to their parking requirements.

But that's not what DC's Office of Planning did.  Instead, at the beginning of the ZRR, OP commissioned a very different kind of study.  Here is the consultants' account of what they were asked to do:
The project’s Kickoff meeting established that the project was initiated out of a perceived need to update the District’s zoning requirements, many of which were felt to be too accommodating of personal vehicle travel given current transportation opportunities (high-level transit service, increased transit-oriented and mixed-use, high-density development) and constraints (regional and local roadway congestion). While noting potentially strong opposition from some stakeholders, it was concluded that the primary goal of the current project was to identify zoning changes that would result in reduced accommodation of parking at new development in the District.
In other words, the ZRR started from the premise that the goal was to increase parking scarcity  -- not to right-size parking.  So we got an ideologically-driven set of proposals rather than an empirically-grounded attempt at problem-solving.  

It's time to go back and do it right.  Study first, then propose changes.  

The studies below are interesting not only for their substantive conclusions, but also as potential models for research design on this issue. 

New York

Friday, March 14, 2014

Affordability, Part 1: Parking

The Office of Planning (OP) has used housing affordability as a rationale for a number of proposals in recent years;  the reduction or elimination of parking minimums, matter-of-right conversions of garages to rental apartments, and the relaxation or abandonment of Height Act limits are a few examples. Yet OP is not trying to reform or replace the part of the zoning code that is expressly designed to produce more affordable housing – the inclusionary zoning (IZ) provisions. This leads me to question whether affordability is a problem that OP actually wants to solve – or whether it serves too useful a function as an always-available justification for upzoning and other pet projects.

This post is the first in a series that will explain why various proposals in the ZRR will not make housing in the District more affordable – and how some are actually likely to make housing even less affordable. 

Today’s topic: Parking requirements and housing affordability

The first thing to remember here is that car-free housing is easy to find in DC, and has been for decades.  (My own household has been carless in DC for 25 of the past 26 years, so I know whereof I speak.) This is true for two reasons:

·       On-site parking requirements weren't imposed in DC until after 1958.  Thousands of apartments, as well as single family homes of various types (detached, duplex, rowhouses, and flats), still in use today were built before that time.  In fact, such housing exists in sufficient quantity to account for on-street parking problems in areas like Capitol Hill, Logan Circle, Dupont Circle, and Georgetown where historic housing stock is common.  It is not at all clear that, empirically, car-free housing in DC is cheaper than housing with on-site parking, but, at any rate, it is certainly already available in this market.

·       Our fractional parking minimums (generally one space for every 2 to 4 apartments) mean that parking in multifamily buildings is typically sold separately (or “unbundled”). So even in buildings that do have on-site parking, people who don’t need or want parking don’t have to pay for it.  Long story short, we already know what the price of housing without parking is in various neighborhoods.  And it’s not going to change.  There’s no reason to believe that housing in new construction with no on-site parking will be offered at lower rents (or sales prices) than units in existing buildings that are sold/rented without parking.

Arguments that parking requirements increase housing prices assume that housing prices are, essentially, a function of how much it costs to build housing. But cost-plus is not how housing is typically priced; rents are market-driven. And, in DC neighborhoods, there's one market for housing and a separate one for parking. Each commands what people are willing to pay, regardless of how much a particular unit cost to produce (e.g. surface parking spaces aren't necessarily cheaper than spaces in an underground garage in the same vicinity). This also means that, to the extent that parking costs have been smuggled into rent, even buildings without parking costs can/will claim that rent because they know that’s what the market will bear.  

In fact, at least one local developer seems quite aware that car-lessness makes higher rents possible.  “Matt Klein, president of Akridge, a commercial real estate company, and chairman of the Urban Land Institute’s Washington Chapter, said that 50 percent of all new residents moving into apartments in the District do not have cars.  ‘That’s part of the way people afford units, by shedding other costs,’ he said.”

It’s also important to remember that the reduction or removal of parking minimums would primarily affect new construction. Yet the most affordable housing in an area is typically found in older residential buildings. Even the cheapest market-driven new construction is likely to be priced higher than older units in the same area, and this is especially true in hot housing markets and in gentrifying areas. 

Experience in Portland bears out the claim that eliminating parking requirements does not increase housing affordability.  Residents say the new car-free buildings are expensive. This graphic indicates that new construction in many areas of Portland rents for nearly twice what pre-1997 buildings do.  Perusal of marketing info corroborates that car-free buildings are being marketed as luxury buildings at high-end prices. Basically, buildings without parking tend to be clustered in neighborhoods where there is a seller’s market.  An article in Willamette Week (Portland’s City Paper-equivalent) offered this explanation:

Randy Rapaport, a longtime developer of condominiums and apartments on the east side, including the Belmont Dairy Apartments and Lofts, disagrees with the parking exemption. He says it simply allows developers to cut costs while creating gridlock for the neighborhood.

“These are sophisticated developers,” Rapaport says. “They know they can fill their units because this area is so hot. They know better.  But they’re not required to know better.”

A NYC residential parking study affirms that when housing is scarce, developers know that it will command high prices with or without parking. In fact, a few developers have discovered that, in that market, fewer parking spaces can be more profitable than sufficient parking – on-site parking will command astronomical rates (with lower excavation costs) if most people in the building can’t have parking but a select few (who are willing to pay whatever it costs) can.

Ultimately, if developers are not compelled to internalize at least some of the costs of providing parking for their tenants, then the public will pick up the tab for the parking scarcity that results – see, for example, calls in Cleveland Park and Logan Circle for municipal garages.  In the shorter-term, expect to see substantial increases in the cost of Residential Parking Permits (and increasing restrictions on on-street parking).  Housing costs won't decrease, but parking costs will increase.  That's not a way to make living in DC more affordable.    

Thursday, March 13, 2014

Accessory Apartments: Toward a More Productive Conversation about Revisions to the Zoning Regulations

To me, one of the most troublesome aspects of the ZRR process has been that proposed new code is being sold not on its merits but on the basis of a few specific changes -- which clearly don't require 980 pages of new text to implement. Ironically, the result of this approach has been to deflect attention not only from the text of the code but also from the substantive analysis of those particular issues. To show you what I mean, I've taken one of the most publicized reforms -- accessory apartments -- and laid out the kind of discussion that I think we should be having.  

Abstractly, what we've got here is a series of policy proposals that should be analyzed as such -- i.e. as means to ends or as solutions to problems. We need to push OP to move beyond analysis that lives at the level of "all the cool kids are doing it" or "growth is inevitable" or "more choice."  OP needs to do actual planning and to justify their recommendations based on factual and location-specific analyses.  In other words, for each major change, OP needs to communicate (a) here's the problem we're addressing, (b) here's why we chose this approach, (c) here are the pro’s and con's of the policy we’re recommending and (d) here's what we're doing to maximize the pro's and to minimize or mitigate the con's.  (Both a and d should be neighborhood-, area-, or zone-specific in some cases.)  Once the proposal has been articulated in those terms, OP needs to treat citizens as partners and as sources of local knowledge – asking such questions as "what problems do you envision?” and "what solutions (or safeguards or alternatives) would you suggest?" Outreach should involve OP learning from citizens – not just trying to educate them.

Take accessory apartments, for example. Here's the policy proposal: let's encourage the production of accessory dwelling units by allowing the creation of external rental units in single-family neighborhoods and by eliminating the requirement that internal units obtain BZA approval. Henceforth, BZA approval would be required only in cases where the accessory building is newly-constructed (or where an existing accessory building is enlarged); simple conversions of outbuildings to residential use, as well as all internal accessory units, would become matter of right.

An intelligent and well-crafted accessory apartment policy would be based on answers to a series of questions like these, none of which OP seems to have asked.


o   Is there any reason to assume that homeowners, motivated by the desire for income generation, would rent these units at below-market rates?

o   Wouldn't adding accessory apartments  to single-family homes actually increase the price (and appraisal/property taxes/insurance premiums) of single-family homes? Presumably, the new dwelling adds value to the home (and more value than a non-income-generating addition would).  Will people who don't want to be landlords risk being priced out of the single-family housing market in some areas?

o   If the affordability of external accessory apartments is primarily a function of their small size (450-900 SF), wouldn’t it make more sense to offer some kind of homesteading or sweat equity option with free land offered in exchange for building a small residence that will be owner-occupied?  Could a pilot project be done on public land? 

 Enforcement Issues: Tax and Safety

o   How will DC government insure that homeowners who create matter-of-right units (a) go through the required safety inspections and obtain a certificate of occupancy for the accessory apartment and (b) get business licenses and report rental income?

o   Does DCRA have a plan for bringing accessory apartments (current and future) into compliance?  If BZA hearings will no longer be required in most cases, what mechanism will DCRA and OTR have for identifying which properties have accessory apartments? Will DCRA be given additional resources to devote to ensuring that accessory apartments comply with tax and safety laws?

o   How will we ensure that external accessory apartments are sited in ways that provide quick and effective access to firefighters?  Presumably, that could be a criterion for BZA approval of special exception requests (though it doesn’t appear to be one included in the proposed regs), but what about conversions of existing outbuildings to apartments, most of which would, presumably, be matter-of-right?

Managing Growth

o   Where do we want people seeking housing of 900 SF or less to locate? 

o   Where will accessory apartments put population?  Where are building lots, housing stock, income levels conducive to the development of such units?  How does the answer differ depending on whether we’re talking about internal or external accessory apartments?

o   Do we risk diverting population that, in the absence of more accessory apartments, would move to the multifamily housing we're trying to build elsewhere in the city? Or that might buy and renovate small houses in areas that need investment if converted garages weren't available as a rental option?

o   If our goal is to restore lost population, should accessory apartments be a targeted intervention in areas that have actually lost population?


o   Are there areas where infrastructure --e.g. schools, sewers, power grid – would be further stressed by the development of accessory apartments?  Bloomingdale, for example, has had flooding issues with basement units.
o   How do we envision water/power/sewer hook-ups working for external accessory apartments and are those regs ready for rollout simultaneously with the ZRR?

o   Are we willing to allow accessory apartments that are "off the grid"? 

o   Are there any advantages to accessory apartment in outbuildings that cannot be achieved simply by allowing internal accessory apartments?   Certainly the creation of affordable housing and opportunities to age-in-place could be achieved with a policy that limited such apartments to internal units.

Experience Elsewhere

o   What kinds of regulatory structures have other jurisdictions put in place? What works? What doesn't?

o   When zoning restrictions have been removed in other areas, how many accessory apartments have been built? Where/by whom? What kinds of units were built (e.g. internal vs. external, size)?

o   How costly has construction of external accessory apartments been? How are they financed? Do we risk (or how do we prevent) another kind of foreclosure crisis if elderly people in gentrifying neighborhoods are induced to add such apartments in an attempt to hang on to their homes as property taxes rise, yet end up unable to pay off the additional debt incurred in building these units?

Thinking Ahead

o   What will we do if a new owner chooses not to use an ADU as a source of income-generation? Should the tax assessment on the property be lowered?

o   What happens if the renters of an external apartment want to own it (but can't afford the primary house) and the seller has a buyer for the primary house who doesn't want to be a landlord? Will we allow lot divisions?

o   Will temporary ADUs be allowed (e.g. the modular medicalized granny flats currently being marketed)? How/will their value be reflected in tax assessments?

o   Is the 6 person total limit per lot really enforceable or sensible?  Other local jurisdictions typically just restrict the number of residents in the accessory apartment to 2 or 3.  This seems like a less problematic approach since it means that changes in the landlord’s family (elderly parents move in, twins are born) don’t create a situation where the choice is between evicting tenants or violating the law.

I'm not inherently for or against accessory apartments.  (In fact, I’ve actually lived in both kinds -- an English basement on Capitol Hill and a cottage in the backyard of a home in Princeton.)  But I think that the ZRR provisions on accessory apartments are poorly-conceived and that the most likely outcomes are a few real nuisances, an occasional tragedy, lots of tax evasion, and no real increase in the production of affordable housing (as well as a likely decrease in the affordability of already expensive houses).  

And, at the level of process, I think that the approach being taken is very destructive of community.  At the same moment we’re being urged to live closer to each other, OP is moving away from the one mechanism (BZA review) that gives homeowners who want to be landlords a powerful incentive to listen to and to address the concerns of their neighbors. Instead of “work together to find a mutually agreeable outcome before you ask us to let you do this” the new message is “just maximize your profit and let the chips fall where they may.”  Which gets even nastier if we’ve got a situation in which the only way to insure compliance with tax and safety regs is to have neighbors turn in neighbors to the authorities

We deserve (and we need to demand) better planning than we’ve seen on this issue – and on others in the proposed new zoning code.  It is up to the Zoning Commission to exercise quality control and to vet OP's recommendations before adopting them.  The format that the Commission used in the first rounds of its public hearings on the draft code didn't provide the focus (or elicit the substance) necessary to do that job well.  My take is that if the ZC's next step was a decision to proceed as they did with the Green Area Ratio -- i.e. by considering specific text amendments to the existing code, one topic at a time -- it would give them the opportunity to make better decisions on this and other issues raised over the course of the zoning regulations review.