Monday, April 7, 2014

Orwellian or Merely Clintonesque? (A Real-Time Account of the UWACS)

This post describes events that happened 10 years ago and that I wrote about at the time.  I reprint it here because it's an example of how Ellen McCarthy, whom Mayor Gray just appointed to replace Harriet Tregoning, dealt with the public during her previous stint at OP.  It was originally published on the Tenleytown listserv (whose archives are available to subscribers only.).

Nov 7, 2003
Last week, about 200 neighbors attended a meeting on the Wisconsin Corridor study. At that meeting, we were repeatedly told that the Office of Planning was not asking for any zoning changes. And yet when their Strategic Plan map was revealed (on a powerpoint slide that lacked any identifying street names or lot numbers), those of us who are familiar with the existing zoning map knew that the heights being advocated on various segments of Wisconsin Avenue were inconsistent with the current zoning. For example, 10 story buildings were envisioned where the existing zoning allows no more than 6, the construction of commercial parking garages was being encouraged on parcels zoned for residential use only, dense development was slated for the land around Tenley Circle that is zoned for single-family detached dwellings, public schools, and churches. And one stretch of Wisconsin Avenue -- where the zoning legally entitles every property owner to build up to 5 stories without asking anyone’s permission -- was represented as a zone in which only 2-4 story buildings could be built.

But you wouldn’t know any of this if you hadn’t spent hours studying the zoning code and maps – something very few sane people would voluntarily do! And the Office of Planning clearly counted on that fact when it offered such a stunningly misleading characterization of its Plan. Arguably, there’s a half-truth embedded in their claim that their plan is not to initiate any zoning changes. They’ve chosen not to change the current zoning law but simply to circumvent it. And, procedurally, they plan to achieve this by encouraging developers to propose buildings that grossly exceed the various limits (not just height, but density, footprint, and appropriate use) imposed by the existing zoning, secure in the knowledge that the Office of Planning will back them up when they go before the Zoning Commission. Meanwhile, most of the current residents, reassured by public officials that the zoning is not being changed, will rest easy and discount opposition to particular projects as NIMBYism rather than as an insistence that the city enforce the legally-prescribed limits on property use that have been designed to protect the property rights of vast majority of the property-owners in Tenleytown and Friendship Heights from the rapaciousness of the very small number of non-resident landowners and developers who experience our neighborhood only as a potential source of private profit and who use their political connections to render themselves immune from the legal restrictions that govern the rest of us (including other/most commercial landlords and developers).

Last night, the Office of Planning treated (some of) us to yet another misrepresentation of what they are doing. Cindy Petkac, the new/temporary Ward 3 neighborhood planner, announced via email that the full draft of the Corridor Study/Strategic Plan will be made public next week (with a community meeting to be scheduled for December 8th), and that ANCs 3E and 3F would have the 90 days they requested for public comment on the draft Plan (a request that OP has resisted for weeks while pressure from the public and from Council Members mounted) before OP submits a final Plan to the City Council for their consideration. Petkac then added that “The Office of Planning will continue its approach not to set down any planned unit development (PUD) applications in the Corridor until the draft Plan is presented to the public.” In fact, the approach announced here is a marked departure from the Office of Planning’s position on when set downs would occur. Back in June, in testimony before the Zoning Commission, Ellen McCarthy, the deputy director of the Office of Planning, stated “We have applications from 4800 Wisconsin Avenue PUD, the Martens Volvo site and Wisconsin and Brandywine, the Babes Billiards site, but we have indicated to the Applicants before that we are waiting for the completion of the Wisconsin planning study before we go forward with the cases that propose zoning changes.”

Office of Planning’s original position – plan first, then implement – made perfect sense. Their new approach – announce what you know is a very controversial plan and begin implementing it before the ANCs and the City Council have a chance to comment upon it, change it, and/or reject it – is a betrayal of the public trust and of the democratic process as well as a high-handed power grab on the part of a non-representative bureaucracy that has a cozy relationships with the corporate interests it is supposed to be regulating. (In the Casey Mansion case, a FOIA’ed email of McCarthy's has her exhorting colleagues to keep the public (including an ANC commissioner who had made a direct inquiry) in the dark about OP’s plans until the underlying real estate deals had been made.)

The argument that developers have waited patiently and shouldn’t be kept waiting any longer because they have a right to put their property to use is a disingenuous one in this context. Yes, developers have a right to build on their property – they have a right to build what the existing zoning permits them to build (which, for the parcels in question, is usually a five-story building covering up to 60% of the lot and whose interior SF was no more than 2.5x the size of the lot). They aren’t being delayed from doing that – no Zoning Commission hearing or OP recommendation is required for matter-of-right 
development. And, as the McCarthy quote demonstrates, the OP had already indicated that it was only proposals requiring “zoning changes” (not PUDs -- planned unit developments -- generally) that would have to wait for the finalization of the Corridor Study. So if a developer wanted to ask for flexibility consistent with the existing zoning – in these cases, permission to build up to 2 stories higher and 20% denser that he is legally entitled to build – he wouldn’t have to wait. The only development proposals being held up have been those that envision development that goes even further than that beyond the existing restrictions. For example, in the Babe’s and Martens cases, both buildings are literally twice as large (measured in interior SF) as the owner is entitled to build under the current zoning  -- and in the Martens case, most of the building is 37.5 feet higher than matter-of-right. Honestly, I see no equity issue in telling property owners who want to do something so far beyond what they are legally entitled to do that they cannot do it unless or until the law is changed. Yet the Office of Planning says, essentially, why wait for the legislature to act when we’ve already drafted the bill? Wrong, wrong, wrong. Especially when the bill is essentially a repeal of an existing law.

I sincerely hope that anyone who is concerned about the future of our neighborhood will pay close attention to what the Office of Planning and the Zoning Commission are doing. I know from experience how difficult it is to educate yourself about these fairly arcane administrative and bureaucratic issues, but if you plan to stay here, the stakes almost couldn’t be higher. I'll do my best to share what I know and to refer you to places where you can verify it.

Sue Hemberger
Friendship Heights