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.

DEVELOPMENT REQUEST	CURRENT PROCESS	ZRR PROPOSAL
Residential development of substandard-size lot	variance	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	variance	matter of right for pre-existing building; or special exception for new or enlarged building
Two-story garage or other outbuilding	variance	matter of right
Home occupation located in a garage	variance	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	variance	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	grandfathered non-conforming use or variance	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	variance	approval of the Zoning Administrator**
Reduction of on-site parking requirements near transit	25% reduction = matter of right if building is non-residential, 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 or 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 -- smithhemb@aol.com -- 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.

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*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.