Since then, the Office of Planning has released its summary of the written testimony submitted on the ZRR thus far. So not only do we have OP proposing, OP vetting OP's proposals -- we now also have OP summarizing and characterizing critiques of its proposals. If this is the filter that all written testimony will pass through, then we will never have a serious and substantive debate about how to revise the zoning code.
Concerned about that prospect, I wrote to the Zoning Commission last week. Here's the letter:
May 9, 2014
District of Columbia
441 4th Street, NW #200
Washington, DC 20001
RE: Case 08-06A
I am writing in response to Chairman Hood’s request (at last month’s Budget Oversight Hearing) that suggestions about how the Commission should proceed in its deliberations on the proposed new zoning code be sent by letter to Mrs. Schellin for distribution to the Commissioners. In my testimony at the budget hearing, I argued that the process of substantively amending the existing code needs to be separated from streamlining it and that a public advocate position should be created within the Office of Zoning to handle outreach and to provide independent review of proposals that originate in the Office of Planning. I write today to extend and apply that analysis to the situation you are now facing.
To put it bluntly, you can’t rely on the Office of Planning to summarize the public comments. Abstractly, it’s problematic enough that we have a system where OP is responsible first for making the proposals and then vetting its own work. It makes no sense to also give OP the role of characterizing and evaluating critiques of its work product. That approach will create a soundproof echo chamber rather than the robust policy debate that should inform your decisionmaking.
Ideally, the Office of Zoning should (a) hire someone qualified to do an independent analysis of the public comments and (b) outline what the Commission wants from such an analysis (e.g. identification of areas of consensus and of controversy, suggestions as to how to break down topics for the next round of hearings, and a list of specific questions to be addressed/answered for each topic).
With the May 5th submission of OP’s summary of written public comments, my concerns are no longer merely hypothetical. The summary that OP has produced is misleading, erroneous, and unhelpful. Their agenda appears to be to stifle debate rather than to identify what’s at issue and to find the best way to evaluate and accommodate competing concerns/interests/preferences/factual claims.
Consider, for example, at the issue of accessory apartments. If you were to rely on OP’s summary, then the impression you’d come away with is that some people are for accessory apartments (and we thank them) and that some people are against (and they are wrong – we’re not proposing what they think we are, they haven’t seen our studies, they don’t understand the current law, and/or they should be talking to a different agency). OP expresses its willingness to re-write a passage that doesn’t convey its intent and to lower the minimum lot size, but there’s no meaningful reconsideration or refinement of policy based on public input, no additional evidence/explanation provided to justify proposed policies, and no attempt at problem-solving. This summary is a document that does nothing to help the Commission weigh the pros and cons of various proposals.
By contrast, if you read the written comments themselves, the most obvious takeaway is that internal accessory apartments are much less controversial than external accessory apartments. While there is vehement and categorical opposition to external ADUs, no one who testified appears to be opposed to accessory apartments located within the primary home on a lot. A few ANCs call for the special exception requirement to be maintained for these units, but most of the concerns that are voiced about internal apartments involve creating a mechanism for insuring compliance with tax, zoning, and safety requirements under a matter-of-right regime. Moreover, if you actually look at the written testimony or at Montgomery County’s Class 3 accessory apartment regulations (rather than rely on OP’s summaries), you’ll find examples of such mechanisms – e.g. requiring a certificate of occupancy or creating a licensing process that provides notice to neighbors and imposes penalties for unlicensed units (as MoCo did).
In OP’s summaries, none of this information is clearly presented. And it is helpful information because it suggests that you should (a) consider internal accessory apartments separately from external accessory apartments (b) flag the compliance issue as a crucial one and ask for more input on that question (e.g. from DCRA, DHCD, and ANCs, and regarding how other jurisdictions handle these issues); and (c) consider external ADUs in a separate hearing that encompasses a variety of other related issues – alley lots, substandard lots, and the appropriate size and uses of accessory buildings.
Long story short, the challenge here is to treat criticism as an opportunity to improve the text, the policies, and the process. Otherwise, public hearings are pretty much a waste of everyone’s time. Public testimony has provided the Commission with a wealth of information (as well as a series of unanswered questions). And the key to making use of that information is to entrust its analysis to someone who is more interested in learning from public input than in dismissing it.
Quality control is the Commission’s job here – and that is a function that no one else in DC government is empowered to perform. The fact that OP’s proposals do not become law unless/until you adopt them suggests that this role has been given to you for a reason. Ultimately, the Zoning Commission is responsible for promulgating the District’s zoning regulations. Residents throughout the city have, collectively, spent untold hours working to ensure that the revision process will actually improve -- rather than simply eviscerate -- the existing code. Don’t betray them. Your mission is not simply to “get it done,” but to “get it right.” And you can’t do that without establishing a more deliberate and deliberative decisionmaking process. To create that process, you need to break the revision down into manageable pieces and to focus the public debate so that it is more substantive and provides you with the information you need to make intelligent and responsible decisions on a series of complex issues.
It’s a lot to ask, I know – but no more than what you are capable of, and no less than what District residents deserve.
cc: Council Chair Phil Mendelson
I watched the Zoning Commission's hearing online Monday night and learned that I misconstrued Chairman Hood's testimony at the oversight hearing. He was citing his previous invitation for this kind of input -- not reiterating that invitation. The problem I've identified remains, but I've got no sense that anyone plans to address it. My guess is that, unless the ZRR becomes an important issue in the upcoming Mayoral contest, we're likely to end up with a trainwreck of a new code.