We Deserve Better

Watching the videos of the Zoning Commission’s July hearings, a few things became clear:

1.  The ZC is being asked to make the kind of decisions it was never intended or structured to make.

2.  In the absence of both electoral accountability and the data necessary to make intelligent and well-informed choices, a majority of the Commissioners seems comfortable making these decisions based solely on their own personal preferences or beliefs.  Chairman Hood has repeatedly resisted such an approach -- see, e.g., his recent admonition: “Why don’t we take self out of it . . . and try to think of the city as opposed to what we personally would do.” -- but the other two Mayoral appointees seem to pay him no heed.

3.  Unless there’s a major shift in the political landscape, the likely result will be that three individuals, none of whom has been elected, will be determining whether DC upzones citywide, incentivizes the subdivision of larger homes, makes it more difficult and expensive to own a car while living in the city, replaces public input with a developer-controlled market in density credits in neighborhoods like NoMA, West End, and Capitol Riverfront, and decides that single-family residential neighborhoods do not belong in an urban environment like ours.  

These are not policy choices that were mandated by the democratically-adopted Comprehensive Plan.   And I’m fairly certain that none would survive the Comp Plan process.  There’s an easy way to find out.  A new Comp Plan amendment cycle is imminent.  Rather than make these decisions themselves, the Zoning Commission should tell the Office of Planning to get Council approval of these policies through that process before asking the ZC to implement them through the ZRR. 

4.  Finally, it appears that the ZRR hearings scheduled for early September may be crucial.  There are clear divisions of opinion among the Commissioners and the compromise appears to be "let's hear from the public."  Experience tells me that that's literal -- i.e. the Commissioners pay more attention if you show up and speak than if you submit written testimony.

If you don't like what's happening, it's important to push back -- not only at Zoning Commission hearings, but as you talk with and evaluate Mayoral and Council candidates. As residents, citizens, voters, and property-owners we need to demand that city planning represents our interests and not just developers', that it is based on civic priorities that have emerged from robust public discussion, and that it is informed by careful study and understanding of the District's (including various neighborhooods') resources and challenges.  Right now we have none of the above.  We deserve better.

While Nobody was Paying Attention...

Last week, the Office of Planning, headed by an interim Director appointed by the lame duck Mayor immediately after his primary defeat, asked the Zoning Commission to raise matter-of-right heights by 20 feet in every apartment, commercial, and mixed-use zone throughout the District.  For most buildings, this change would allow an additional two stories of office, condo, or restaurant space (or any other use permissible within the zone).  In buildings that max out Height Act limits, federal law, these 20 feet penthouse structures would be limited to a single story.

It’s a move of jaw-dropping audacity, and a brilliant affirmation of Phil Blair’s claim that DC doesn’t really have an Office of Planning – we have an Office of Plotting. And, apparently, the Office of Plotting is located somewhere within the Ministry of Magic.  OP has fashioned a giant Cloak of Invisibility that will enable developers to add an additional 20 feet of height without exceeding existing zoning limits. We'll retain all our current zoning parameters -- we just won't count anything that happens on the top two floors toward those limits.  Those stories are above the "roof" so it's as if they don't really exist.  But such space would be essentially indistinguishable (in use and in level of finish) from anything that goes on below the "roof" -- except that it'll command higher prices.  Neat trick!

In Case #14-13, filed on July 24^th and discussed at the Zoning Commission’s July 28^th meeting, OP has proposed significant upzoning by making 20 foot habitable penthouses matter-of-right citywide.  Such penthouses would be allowed in all zones other than R-1 through R-4[1] and would not count toward either the height or FAR[2] limits that characterize the zone.  Area limits based on roof size would also be eliminated.  Front and, in some cases, side setbacks would be the only constraint on the amount of space that could be built in such penthouses.  Any use allowed as a matter of right within the zone would also be allowed on the roof.  

There’s no planning behind this proposal.  These amendments have been offered on the pretext that they are needed to make DC local zoning regulations consistent with federal law. This is ridiculous.

First, DC’s regulations are already consistent with federal law – federal law sets a maximum and as long as DC doesn’t authorize more than the feds allow, DC’s law is consistent with federal law.   The fact that OP’s proposal is least ambitious where the Height Act actually does apply makes it clear that this isn’t legislation that the Height Act somehow requires -- it's overreach.  Even prior to this year’s changes in the Height Act, DC had the power to raise heights in most zones by 20 feet (and to impose setbacks at that height).  But OP hasn’t made such a proposal because (a) there’s no compelling justification for such wholesale upzoning and (b) it would be wildly unpopular.  No Mayor with any desire for (or hope of) re-election would take such a risk; it would be political suicide.

Secondly, throughout the extended discussion over raising Height Act limits, OP repeatedly made the claim that this was an important “home rule” issue – we should get to decide what heights are appropriate where – it shouldn’t be left to the feds.  But the moment the feds allow greater heights, OP contends that it’s urgent that we raise ours to match.  What happened to making our own decisions?  And let’s not forget that a near-unanimous Council opposed altering the Height Act and that subsequent opinion polling indicated that their stance reflected that of DC residents and voters who overwhelmingly preferred retaining existing limits.

Finally, the fact that OP’s proposal is citywide, categorical, and matter-of-right (all zones everywhere, except low-density residential) demonstrates the absence of any real planning.   No attention has been paid to context, to demand, to infrastructural capacity.[3]   

There’s an unseemly haste about all of this.  OP asked for a setdown[4] hearing on these text amendments, without having even WRITTEN the actual text.  It then submitted its setdown report 4 days (rather than the required 10) before the (Monday) hearing.  That hearing was the Commission's penultimate session before its summer recess, with an already-lengthy agenda including the McMillan and Barry Farm PUDs (both complicated and highly-contested).  By the time the Commission got to the penthouse amendments, they’d been meeting for four hours and it was about 10:30 pm.

To the Commission’s credit, rather than grant setdown, they deferred decision until September 4^th, at which point they expect to see actual text amendments rather a description of what such amendments might say.  Nothing the Commissioners said indicated that they realized how far-reaching OP’s proposal actually is. But, presumably, that was the point of such a premature submission – in the blur of everything else going on, and with OP talking about developers’ urgent need for certainty[5] about what the rules are, it seems as if the current Administration’s goal is to ramrod this through before anyone realizes what’s going on.

In general, what last month’s hearings have dramatized is that the Zoning Commission is overwhelmed and that it is being asked by the Office of Planning to make the kinds of decisions – major policy choices – that it was never intended (or structured) to make.   We’re talking about a five member unelected Board, whose appointees are not required to have any expertise in planning or zoning and the majority of whose members have what appear to be pretty demanding day jobs.  The Commission’s administrative office is very competent and professional, but they don’t have staff whose function is to analyze, summarize, and/or vet proposals.  So each Commissioner is on his or her own. 

But that's a topic for another day...

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[1] Low density residential zones where only detached, semi-detached, and rowhouse construction is allowed.  In these zones, the current draft of the proposed new zoning code would allow 10 foot tall penthouses (with setbacks), limited to 1/3 of the area of the roof below.  

[2] FAR = floor area ratio which is the relationship between building size and lot size, both measured in square feet.  A building with a FAR of 5 has five times as much square footage as the lot it’s built on. 

[3]Joel Lawson’s presentation at the ZC hearing amended/supplemented the written report by stating that these changes weren’t intended to affect areas where there are pre-existing overlays that specifically limit penthouse dimensions.

[4] Set down is a decision by the Zoning Commission that a proposal is ready for consideration and public debate.  After the ZC agrees to set down a case, a public hearing is scheduled and advertised.

[5]For what it’s worth, there’s very little uncertainty right now – it’s clear that a building whose roofline reaches the Height Act limit may have an enclosed, single-story, inhabitable penthouse on top and that it must have a 1:1 setback.  What’s uncertain is whether the height of that penthouse can be 18.5 feet (DC regs incorporating old fed law) or 20 feet (amended fed law).  Everything else is about developers asking for more – not about not knowing what they’re entitled to.  Commissioner May pointed this out toward the end of the hearing.

Update

Since I last posted, there have been a few major events.  Here's the "just-the-facts-ma'am" overview, with links to the relevant documents. Commentary on specific issues will  follow in later posts.  

1.   On June 16^th, the Office of Planning proposed some changes (“alternative text”) to the draft code that was discussed last fall.  These changes were framed as reconsiderations of policy based on public testimony.  The text of OP’s proposals can be found here or by going to IZIS and finding Exhibit 725 on page 16 of the log for ZC Case 08-06A.  This is a 90 page document that may be easier to read online than to print out  (It's not page-numbered consecutively and different sections use different formats and orientations.  My home printer choked on it; a friend's worker printer had no problem).  Topics covered include definitions, lighting, big box retail, accessory apartments (formerly "ADUs"), corner stores, camping in alleys (aka Tiny Houses), theater space in residential areas, parking, and downtown.

2.   On July 10^th, the Zoning Commission discussed the alternative text and ultimately voted 5-0 (Michael Turnbull was not in attendance but submitted a proxy) to set a modified version down for public hearing(s).   The Commissioners all agreed that the Lighting section was not ready for setdown.  And because there was disagreement within the Commission on the merits of some of OP’s proposed alternatives, the Commissioners decided to set down both the new and old versions of the rules regarding accessory apartments and parking requirements.  All other provisions were set down as proposed.

3.  Since that setdown decision, a number of new hearings on the ZRR have been scheduled for September. One additional hearing on the original text has been scheduled for September 4th.  Participation in this hearing is limited to people who have never previously testified on any aspect of the ZRR and to ANC Commissioners (regardless of whether they have previously testified).  Hearings on the newly setdown "alternative" text -- at which anyone may testify -- are scheduled for September 8th-11th.  It’s not clear whether you may testify each night on a different topic (e.g. accessory apartments, big box retail, parking) or whether you’re limited to a single appearance and three minutes of testimony.  All hearings start at 6 pm.

Oddly, a revised draft of the alternative text, reflecting what happened at the July 10th meeting, has not (yet?) been produced.  So the ZC has posted three documents for the September 8th-11th hearings -- the original "alternatives" text (Exhibit 725), OP's pre-hearing correction and summary memo (725A) and another OP post-hearing memo (725B) that makes a few changes to definitions, but says nothing about eliminating the Lighting section or asking people to weigh in on the question of whether the "original" or "alternative' texts on accessory apartments or parking is preferable.  

4. Not news, but a reminder:   The record for written testimony (by anyone, on any topic) on the ZRR remains open until September 15^th.  Written testimony may be submitted via the IZIS system or be mailed, emailed, or faxed to the Office of Zoning. 

5. On July 28^th, OP asked the ZC to set down as-yet-unwritten text amendments that would allow 20 foot tall habitable penthouses to be constructed above the roofline as matter of right in all zones except R1-4. The additional 20 feet of penthouse would not be counted toward the height limit in the zone.  Nor would the square footage in the penthouse count toward limits on floor area ratio (FAR), even though penthouse space could be used for any use permitted in the zone -- so it would be the same kind of space (office, residential, restaurant) as the space below the roofline.  This proposal would represents significant upzoning citywide.  

As you can see from OP's description of its proposals, the only constraint on the area (square footage) of such penthouses would be setback requirements and the limit on the number of stories (one penthouse story will be allowed where the building maxes out the Height Act limit; two stories will be allowed everywhere else).  Restrictions based on FAR and/or roof area would be eliminated.  If the ZC isn't willing to eliminate those restrictions, OP advocates loosening them so that adding penthouse space won't involve subtracting space elsewhere.  

Rather than set down these (non-existent) text amendments (filed as ZC case #14-13), the ZC decided to discuss the issue again on September 4th (prior to the public hearing), at which time OP, presumably, will have actual text to present.

6. There's a third ZC case (#14-11) that proposes more text amendments based on ZRR testimony.  These amendments would be made to the existing code and are offered as ways of addressing the pop-up and condo conversion pressures that are currently being faced in R-4 neighborhoods.  The setdown hearing was July 17th,    Another 5-0 vote (with Peter May absent/voting by proxy) for setdown and, once again, the notion that the public hearing with be advertised with alternative text so "all options are on the table."