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the same outreach packet) that it is "not proposing to change use permissions" but just to update the code by removing outdated uses like the "penny arcade."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.