Penthouses: The Conversation We Should be Having (and how you can help make it happen)

Sometimes the best way to figure out what's going wrong is to start by taking the enterprise seriously and at face value -- in this case, "Let's reconsider how we use the space on top of roofs" -- and then play out what candid and responsible people would do prior to making policy choices on the issue. By starting from scratch with a simple question -- if I wanted to make an intelligent decision, what would I need to know and to consider? -- you can strip away a lot of BS pretty quickly.  And what you come out with is a path forward rather than simply a critique of where we are now.

Toward that end, here's my take on what the penthouse discussion should look like.  Three basic questions frame the issues.

1.  What do (and don’t) we want happening on rooftops (and where)? 

The Wall Street Journal suggests that what's at stake here is trophy party space for out-of-town guests.   The article establishes that this can be a very lucrative enterprise -- the Newseum charges $30,000 a night for rooftop rentals.  But creating more such space is hardly the sort of emergency that justifies passing broad new regulations without any consideration (beyond revenue) of their implications.  Nor do the proposed regulations limit uses -- restaurants, nightclubs, office space, luxury housing, or any other use allowed in a zone could be located on the penthouse level(s).

Are we truly indifferent as to what uses this space is put to?  Does the answer depend on where the space is located?  If we want to create a "living" downtown, how will rooftop party spaces and the noise, light, and privacy issues they create affect the residents of neighboring buildings?  Are there safety and/or security issues affecting rooftop uses in some areas?  In areas where our goal is to create more "vibrancy," what happens to street life if we move restaurants and clubs to the sky?  Do we want rooftops to be shared (by building tenants), commercial (open to the public -- for a price), or private? What do we hope to accomplish by making this space more usable?  At this point, "sold to the highest bidder" is the operant logic of the new regulations.  To me, that's the opposite of planning.

2.  What's happening on rooftops now?  If we introduce new uses, what gets displaced -- and to where? 

In essence, the Office of Planning is proposing to commodify rooftop space.  This is a major change.  Under current zoning regulations, the rooftop uses that are allowed in DC typically don't generate revenue -- at least not directly.  Since the highest floors of a building typically command the highest rents and sales prices, adding one or two more inhabitable stories creates a strong incentive for every new building to maximize the built space above the roof.  In lower-density zones, where two extra stories (even with setbacks) could represent a major increase in merchandizable square footage, there's a potential incentive for teardowns.  And once roofs become a profit center, to what extent will beneficial but less lucrative uses survive?

Under the current zoning, rooftops typically house mechanicals -- elevator overrides, vents, HVAC equipment, antennas, and the like.  If these necessary-but-less-than-aesthetic pieces of equipment don't go on the roof, where will they go?  One developer's submission suggests that the top floor of the basement is the next-best location in commercial buildings -- in which case parking and/or storage space is likely to be displaced.  If mechanicals stay on the roof, will they be re-located in ways that make them more objectionable? In addition to being ugly, such equipment can be noisy, hot, and/or smelly depending on its function.  

More recently, rooftops have provided space for environmentally-friendly features like solar panels, green roofs, and stormwater management systems.  In addition to helping meet sustainability goals or green building requirements, such features can lead to reduction in utility costs for building owners and/or residents. But, once these features are placed in competition with revenue-generating uses, they are unlikely to be allocated prime rooftop real estate.  Solar panels, which need direct access to sunlight, face new constraints on height and orientation under the proposed guidelines as well as the likelihood of a shrinking footprint.  To what extent -- and where -- is it desirable to preserve rooftop space for uses that contribute more to sustainability than to profitability? New York, for example, has recently prioritized "green" rooftop uses in its zoning code.

Finally, some residential buildings have provided communal recreational space -- like swimming pools -- on their roofs.   In the not-too-distant past (up until 2006), on-site recreational space was required of multifamily residential projects.  But once inclusionary zoning was contemplated, developers argued they couldn't be expected to do both.  So, at their behest, OP proposed and the ZC agreed to repeal recreational space requirements for new multifamily buildings.  (Ultimately, the downtown developers who pushed for this repeal then proceeded to get themselves exempted from inclusionary zoning requirements as well.  Which makes it pretty outrageous when they suggest that the usual IZ requirements should govern penthouse construction.  For them, the usual = "none."  But I digress.)  

The absence of recreational space has been a real issue in NoMA, where thousands of units of housing came online after the repeal of the requirement.  The solution has been for DC government to spend $50 million to create parks in the neighborhood but the available land is so expensive that these recreational facilities may end up located in freeway underpasses.  

At any rate, we're now at a stage where, at least in some areas, there's a market incentive for new apartment buildings to provide rooftop pools (see, e.g. the Park Van Ness project in Chevy Chase).  But that's likely to change once that same space could be turned into two floors of luxury penthouse units instead.

What can/should we do to incentivize the use of rooftops in a way that will benefit DC residents generally?  Or do we plan to make our rooftop spaces the private preserve of a handful of super-wealthy owners of pied-a-terres?  

3.  How should we regulate what happens on roofs? 

Setbacks aren’t enough -- they address street-level views -- but view isn't the only issue and the street (much less the sidewalk immediately in front of the building) isn’t the only relevant vantage point.

These amendments are being sold as ways to prettify our skyline -- but there are no requirements, no review, no design standards to achieve that end.  

Serious thought needs to be given to what can and cannot be placed in the setback areas -- can it include outdoor seating and associated temporary structures (bars, tents, heaters), mechanicals that are no more than 4 feet tall, solar panels, or green roofs?  

Shouldn't the relationships among different rooftops be considered?  Can one building place its mechanicals in a way that spoils another’s view?  Or its penthouse in a way that undermines the efficacy of another’s solar panels?  On the ground, we pay attention to how the actions of one property owner affect the interests of neighbors -- don’t we need to look at that issue in the air as well?

The Bottom Line:  We need to establish public priorities regarding rooftop uses and then create an incentive structure that reinforces our policy objectives.  

"Maximize developer profits" is the only objective that can be deduced from OP's current proposal.  And that's not public policy.  That's a parting gift to developers (former contributors? future clients?) from government officials who are no longer accountable to the public they are supposed to serve.  

Too much is at stake here -- both in the regulations themselves (20 extra feet of height in every commercial or multifamily zone citywide) and in the precedent they'll establish (that the interests and preferences of city residents can be ignored with impunity) -- to let this pass. 

What you can do:

The right approach would be for the question of rooftop uses to be taken up as part of the forthcoming Comprehensive Plan amendment cycle (scheduled to begin in early 2015). This is what the Office of Planning repeatedly promised both DC residents and Congress throughout the Height Act debate.  See, for example, OP's statement that

The Height Act is a federal law that can be modified only through 

congressional action.  Any relaxation by Congress of the current

Height Act restrictions would still require further review, public

participation, and decisions by the District and federal governments

about whether, when and where any changes to building heights

would actually occur. The District would undertake amendments to

its Comprehensive Plan and then initiate any zoning changes deemed 

appropriate through its normal processes, including substantial public

input, to respond.[1]  (emphasis added).

Mayor-elect Muriel Bowser and Council Chair Phil Mendelson are the people who have the power to ensure that this promise is kept.  If you feel strongly about this issue, please send them an email ASAP, letting them know that you'd appreciate their intervention. Their addresses are mbowser@dccouncil.us and pmendelson@dccouncil.us 

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[1] Government of the District of Columbia,  Height Master Plan for the District of Columbia: Final Evaluation and Recommendations, November 20, 2013, page 7.  See also pp. 2, 45-46 of that document as well as similar comments in the September 20, 2013 Draft Recommendations, pp. 1, 10, 44.

Penthouse Follies

Message to the ZC:  Slow the belt down -- Do the job right!

As I mentioned last August, under interim director Ellen McCarthy's leadership, the goal of the Office of Planning seems to be to push through as many controversial changes as possible before we have a new Mayor in office.  At this point, the Zoning Commissioners, unable to process all the paper being thrown at them at once and actively discouraged from thinking through the implications of various proposals, seem poised to rubber stamp almost anything put in front of them.  

Toward that end, last Thursday the Commission considered a major change to DC’s zoning code.  OP’s penthouse amendments would add an additional 20 feet of height to buildings citywide.  In buildings where such a penthouse would exceed the Height Act limit, those 20 feet would be limited to a single story; two additional stories would be authorized everywhere else.  Any use allowed in the zone would be allowed in penthouses as matter of right.  And penthouse space would not be counted toward the height or area (aka FAR) limits of the zone.  The only constraints on the square footage of a penthouse would be those imposed by setback requirements.

Under OP’s current proposal, only R1 through R4 zones would be excluded from this upzoning. That said, institutions located in such zones have apparently already retained counsel who submitted testimony requesting that schools, churches, museums, and other institutions with buildings located in low-density residential zones be allowed to develop penthouses subject to the same rules that apply in other zones.  And, of course, there are many areas in the city where low-density residential neighborhoods abut commercial, apartment, or mixed-use zones. 

Long story short, OP's proposals represent significant upzoning citywide.  These new rules would affect existing buildings, new construction, and projects currently in the pipeline.  In fact, OP has proposed that previously approved PUDs (e.g. Hine School, West End Library, the Wharf, Babe's, maybe even McMillan) could add such penthouses as a minor modification -- which would require no public hearing.  

The development community and their hirelings submitted lots of written testimony, clearly coordinated -- both formally and rhetorically.  The Developers' Roundtable* and the DC Building Industry Association sent letters -- in fact the DCBIA made two submissions, one with the findings of a study they commissioned. Trammell Crow, Eden, PN Hoffman, Hilton, Carr Hospitality, Carr Properties and Property Group Partners wrote separate letters as well.  Paul Tummonds of Goulston & Storrs weighed in, as did consultant Lindsley Williams -- though neither identified which specific clients, if any, they were representing in this proceeding.

By contrast, not a single ANC Commission or Commissioner wrote or testified in this case.  Why?  Two likely explanations -- the first is that ANC Commissioners were in the final throes of their election campaigns during the period between the October 17th notice and the November 6th hearing.  The other is that the 25 page public hearing notice announcing these changes was virtually impenetrable and no attempt (beyond the boilerplate header stating that “This case is of interest to all ANCs”) was made to alert Commissioners as to what is at stake in this proposed rule-making. The claim that these penthouse amendments are being offered in response to changes in the Height Act would naturally lead most people to believe that the new rules would only apply to buildings previously constrained by that statute.  

Thanks to the combined efforts of Alma Gates, Chris Otten, Rob Robinson, Marilyn Simon, and Dana Sleeper, the Zoning Commission ultimately agreed to keep the record open for another two weeks.  This means that ANC Commissioners and other civically-engaged people have until November 24th at 3 pm to submit written testimony on these amendments to the Commission.  The case number is 14-13 and filings cannot be made using the IZIS system.  Directions for submissions are available here.  You may email your testimony (submitted in the form of a signed pdf attachment) to zcsubmissions@dc.gov.  Fax (202-727-6072) and hand delivery (second floor of One Judiciary Square) are the other same-day options.  If you use regular mail, testimony must be received by the deadline.

Over the next few days, I'll write more about the substance of this issue. My goal today was primarily to describe the proposal and to point out the very limited window of opportunity remaining for comment.

______________

*This letter was signed by representatives of Abdo, Property Group Partners, JBG, Gould, Douglas Development (Jemal), Jair Lynch, Western (Herb Miller), Vornado/Charles E. Smith, DRI, Wilkes, Hines, Carr, Quadrangle, Republic Properties, Boston Properties, Brookfield Properties, Forest City, William C. Smith, and Akridge. Almost all of these companies (and many more) are also listed on DCBIA's letterhead.  

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."

Well, I tried....

Last month, when I testified at the Budget Oversight hearing on the Office of Zoning, I recommended that additional funding be provided to hire a certified planner to serve as a public advocate to the Zoning Commission.  I argued that the Commissioners needed access to a planner who could offer an independent assessment of the Office of Planning's proposals and who would handle public outreach in a way that treated citizen input as a source of local knowledge/potential insight rather than as an obstacle to be overcome or maneuvered around.

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

Zoning Commission

District of Columbia

441 4^th Street, NW #200

Washington, DC 20001

 RE:  Case 08-06A

Dear Commissioners:

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 5^th 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.

Respectfully submitted,

Sue Hemberger

 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.

Back to the Future?

Was 1956 more car-centric than we are today?  That seemed to be the premise behind one of the Greater Greater Washington (GGW) posts I wrote about yesterday.  It suggested that, in 1956, DC's planners assumed everyone would drive everywhere -- whereas today we know (and do) better.

I was skeptical.  After all, the interstate highway system hadn't even been built in 1956 -- Eisenhower signed the crucial legislation that summer.  So I ferreted out an old Statistical Abstract of the United States and compared the 1956 numbers with those in the most recent DC DMV Annual Report.  Then I made a little chart for your viewing pleasure:

	DC population	licensed drivers in DC	vehicles registered in DC
1956	831,000	336,977	196,000
2012	633,427	368,667	284,905

With a significantly higher population than we have today, DC had fewer drivers in 1956 and fewer registered vehicles.  It was also a society in which people traveled fewer miles.  I couldn't find state-level statistics on vehicle miles traveled, but both the Statistical Abstract (p. 556) and FHWA’s Highway Statistics 2012 provide national vehicle miles traveled (VMT).  The total VMT in 2012 was over 4.7x the VMT in 1956 – and that’s with only an 87% increase in population over the same period. Which means that per capita travel in the US was about 2.5x as many miles in 2012 as it was in 1956.

So if we really were living in a time warp, and DC's current zoning code reflected 1950s realities, then it would assume a less car-dependent society than the one we actually live in now.  In fact, last month public transit advocates trumpeted the fact that in 2013 the US experienced record levels of transit usage -- the highest since 1956!  But, alas, the benchmark that we matched was the total number of trips made using public transit in a year --- so, in per capita terms, we're using transit only about half as frequently as people did in the mid-1950s, despite the fact that, overall, we're traveling much more.

In general, I think that the whole invoking-the-spectre-of-the-1950s move is basically just a distraction in debates over the zoning rewrite.  After all, our current zoning code, as Harriet Tregoning acknowledged, has been modified a thousand times since it was adopted. And, as Tregoning also acknowledged, the proposed "new" code would retain 90% of the provisions in the existing code.  So the "eew, retrograde" vs. "shiny! modern! new!" dichotomy that GGW is trying to set up is a false one.
But if we ARE going to talk about the 1950s, let's at least get the facts right.

The Soul of the City

In the past week, Greater Greater Washington has posted two articles urging that the draft zoning code be adopted ASAP.  The theme of the first piece is that the code we're operating under now has been outdated since 1970.  And the theme of the second is "enough is enough" -- time to cut off public comment on the draft.

Strikingly absent from both posts is any substantive defense of the 980 page draft code now before the Zoning Commission.  In fact, at a recent oversight hearing, one of the authors of the first article testified that the proposed new code was inadequate and already, itself, out-of-date -- therefore, it is imperative that it be adopted immediately!

In general, proponents (following OP's lead) have vacillated between two very different claims.  One is that there's nothing much to see here -- OP's proposals started out modest and have been substantially weakened in response to public pressure.  The other is that it is urgent that this "new, modern, and more understandable zoning code" be adopted quickly because housing costs "are rapidly spiraling out of control" and we shouldn't delay in "creating a more walkable and inclusive city."  How such "tiny" changes in the code will have such a significant impact goes unexplained.

Maybe the real problem here is that the GGW/Smart Growth crowd has read the press releases, while most of the critics of the ZRR have actually read (at least parts of) the draft text itself.  Throughout the ZRR process, OP has stressed three changes -- ADUs, corner stores, and parking requirements. Those are the issues that proponents have focused on.  And while the changes in parking requirements could be transformative in some areas (e.g. downtown and in mixed-use neighborhoods near Metro where on-street parking is already scarce), the ADU and corner store changes are relatively minor -- enough to create major headaches for a few unfortunate homeowners who suddenly find themselves next to nuisance properties, but not significant enough to have any impact on affordability or walkability. ADUs and corner stores are essentially symbolic gestures -- not solutions.

They are probably also issues where consensus could be quickly and easily achieved. Allow internal ADUs as matter-of-right (while requiring a certificate of occupancy as an enforcement mechanism for enforcing tax and safety compliance) and either abandon the external ADU idea or do a pilot program.And since some communities love their corner stores and others find them problematic, give interested neighborhoods the option of adopting more permissive regs, allowing each to designate its own locations and conditions.  Interestingly, in both cases (external ADUs and corner stores), Georgetown was able to customize the ZRR provisions and it wanted more restrictive rules than what OP has proposed citywide.  Why shouldn't other neighborhoods be given the same opportunity?  No delay required -- just keep the existing rules as the default, but adopt a new regulation that outlines the customization process and parameters.

Parking's a more difficult issue (and one where zoning is only part of the problem/solution), so I don't see a quick and easy fix there.  But the absence of even the most basic data collection and of integrated planning across agencies has made this a more divisive issue than it needs to be.  Certainly opponents of OP's proposals favor "right-sizing" parking.  The question is how we determine what the right size is.  And when OP begins by telling its consultants that "developers would generally be happy to build less parking" and then instructs them to "identify zoning changes that would result in reduced accommodation of parking at new development in the District," there's justifiable skepticism as to whether "how much parking do we really need?" is the question being answered.

In any event, unlike supporters, critics of the ZRR are concerned about a much broader range of issues than ADUs, corner stores, and parking.  They're looking at unpublicized aspects of the ZRR, at unintended consequences, and at what the ZRR has failed to do.  And the issues that have emerged include public input, housing affordability, neighborhood character, the fate of downtown (and how to create attractive and liveable high-density neighborhoods), development pressure that threatens single-family housing stock, and the "where and how do we grow?" issue that manifests itself in a variety of different forms -- including overdevelopment, uneven development, and gentrification, as well as infrastructural and public facilities issues.

I think it's fair to say that, increasingly, people see the soul of the city as at stake.  Are we going to be a city where people can put down roots, where you don't have to be affluent (and able-bodied) to stay, where you can raise kids and have parks and schools nearby, and where nature, history, and human scale are prized?  Or are we going to be a city of transients where developers extract maximum value from the land and where local government's primary objective is to increase its tax base?

This debate isn't a referendum on cars or change or millenials or urbanism.  Basically, it's a controversy over where the balance between community and commerce should be struck and it's being raised in the context of the ZRR for a host of different reasons.  People across the city are sensing that the social contract zoning represents is being abandoned.  If there's money to be made, then all bets are off.  The continued failure of DC's Office of Planning to do any actual planning, its refusal to provide a complete and honest account of the changes it is proposing, and its belligerence in dealing with citizens who are raising legitimate concerns about what is happening in their neighborhoods have only aggravated the situation.  And it certainly doesn't help that the ultimate decisionmakers here are five unelected Zoning Commissioners who haven't been given the staff or the research they'll need to make well-informed decisions on these issues.

Miscellany

Worth reading:

On ADUs:

The Northwest Current has a piece by Brady Holt regarding accessory dwelling units (page RE14). Quotes one local developer as saying it costs $200K to $400K to build a basement unit and a realtor as estimating that a legal basement unit adds $200K to the appraised value of a home.

On Parking:

Emily Badger's "Why the Poor Need Better Access to Cars" (on Wonkblog) and/or Driving to Opportunity, the Urban Institute study it summarizes.

"The Cost of a Parking Spot" from Urban Turf looks at current asking prices for both sales and monthly rentals of parking spaces in a variety of DC neighborhoods. The article says that sale prices appear to have increased about $5,000 to $10,000 since their last survey in 2011.

Updates to the chart on public input:

I've added two entries -- (1) Substandard lots (those that fail to meet the minimum SF or width requirements for the zone) now require a variance.  If the ZRR were adopted, development of such lots would be matter of right. (2) Prohibited uses, which also require a variance under the current code, would require approval of the Zoning Administrator (ZA) under the ZRR.  Note that the ZA does not provide notice or hold hearings prior to approving requests made by the property-owner. While any property owner, developer, real estate lawyer, or architect may request a determination letter from the ZA, typically the ZA does not offer any justification for a decision that a project complies with zoning requirements.  As a result, it's virtually impossible to evaluate consistency across cases.

Here's an example (from Subtitle D, page D-74) of one of the regs that effects change #2:

1611 USES NOT IDENTIFIED IN R ZONES
1611.1  Any use or Use Group not included in tables or otherwise permitted by conditions, special exception or as an accessory or home occupation of this chapter shall be deemed not permitted unless determined by the Zoning Administration to be compatible with like permitted uses and consistent with the general use impacts of permitted uses.

Translation: Anything not mentioned is prohibited -- unless the ZA allows it.

What are the odds that, in 980 pages of text, such a passage would leap out at a casual reader?  What are the odds that all five of the Zoning Commissioners noticed it and know what it means?

And change #1 (matter-of-right development of substandard lots) is even more elusive.

These are the kind of significant changes that are flying under the radar in the Zoning Regulations Review process.

ZRR Record to Stay Open until September

After meeting with a group of ANC Commissioners led by Ward 8's Holly Muhammad, Mayor Vincent Gray agreed that the record for the Zoning Regulations Review (ZRR) should remain open until September 15, 2014.  The Zoning Commission affirmed that deadline in a 4-1-0 vote last night.  No additional public hearings have been announced at this point but, presumably, some will be scheduled.

At the Budget Oversight hearing on Monday, Zoning Commission Chair Anthony Hood remarked that he was seeing increasing interest in (and concern about) changes to the zoning code.  What I've noticed is that, as more communities take a closer look at what is being proposed, new sets of issues emerge and they emerge in ways that demonstrate the differences among neighborhoods and the need for policies that are sensitive to those differences.  The loss of single-family housing stock is one such issue.  I suspect that creating livable downtown neighborhoods will become another.

One of the reasons why additional hearings are necessary (and why participation in such hearings should not be restricted to people who have not previously testified) is that the process of community engagement yields new insights.  I know I've learned quite a bit in the four months that have elapsed since I testified before the Zoning Commission last November  (and I expect to learn even more between now and next September).  I wholeheartedly applaud Commissioner Hood's efforts to get more people (and a more diverse group of people) to weigh in on the ZRR.  And I respect his desire to ensure that no one group dominates the discussion.  But I sometimes wonder whether he sees the hearings as some kind of pseudo-plebiscite rather than as a vital source of information about what is (and is not) being proposed in the code and what impact various provisions are likely to have in specific situations and locations.

To put this another way, the goal here isn't to count noses or to judge which way the wind is blowing but to anticipate and prevent problems, to craft regulations that are workable and beneficial, and to ensure that new policies are consistent with the Comprehensive Plan.

Public Advocacy

[[Earlier today I testified at two of the Committee of the Whole's annual Budget Oversight Hearings.  Below is my testimony regarding the budget for the Office of Zoning, which is the administrative office that supports the work of the Zoning Commission and the Board of Zoning Adjustment.  

As you'll see, I urged the Council to shift some ZRR-related tasks (and the budgets associated with them) from the Office of Planning to the Office of Zoning. One part of this argument will be familiar to regular readers of this blog.  The other -- creating a public advocate position within the Office of Zoning -- is something I haven't previously discussed here.  I'm not the first person to make such a suggestion (I think former ANC Commissioner Robert Gordon proposed something similar when he ran for Council in 2006), but I think that recent experience with the ZRR has made the creation of such a post even more imperative.]]

Two things were apparent from public testimony at last month’s Performance Oversight Hearing on this Agency.

First, people trust the Office of Zoning.*

Secondly, over the past few years, this Agency has made great strides in terms of online communication and it seems highly motivated to keep improving the public’s access to information relevant to its mission and decision-making process. 

With these two observations in mind, I’d like to make two budget suggestions (both which may involve reprogramming of funds from the Office of Planning):

• Allocate sufficient funds to the Office of Zoning to enable it to hire consultants (and, if necessary, a new in-house IT person) to streamline the zoning code and render it more user-friendly as well as to create supplementary materials like guides, summaries, and finding aids.  This might be an appropriation that, in part, waits for next year.  Meanwhile, it would be very helpful if the existing code could be turned into a single, searchable pdf available online as soon as possible. 

• Give OZ funding for a new permanent staff position:  a public advocate.  This staffer (who should be a professional, ideally an AICP certified planner) would serve three functions – review proposals where OP is the author/applicant, provide substantive public outreach services that would clearly and accurately inform citizens what specific changes the ZC will be considering, and summarize public comments.

It’s time to acknowledge that the Office of Planning’s own attempts to make zoning code easier to use have failed miserably.  The ZRR draft is longer and more unwieldy than current code -- and it’s in the process of getting worse not better, as various patches are made and exceptions are carved out.   The bottom line is that significant substantive changes have been buried in a mountain of convoluted code, which has created a situation rife with unintended consequences.  To mention only one, we’re on a path that would throw into doubt the status of the entire body of existing case law and administrative precedent accumulated over more than 50 years.

The way out of this mess is to separate the substantive amendment of the existing code from a wholesale revision designed to make the code easier to use.  The Zoning Commission should make substantive changes explicitly and deliberately, debating each policy proposal separately.  Then, after the code says what we want it to say, consultants should be hired to do the streamlining – people who have done this before and done it well.  These consultants should report to Office of Zoning and be tasked with rendering the code user-friendly without changing its substance.  When they confront editorial choices that have substantive implications, they should refer such questions to the Zoning Commission for guidance, spelling out alternative approaches and what they see at stake in the choice between them.  This team should include IT people, at least one of whom is (or will be) a permanent employee of the Office of Zoning.  Increasingly, users of the code access it electronically and the code needs to be structured in a way that makes it easy to navigate both in printed form and online.

As for the public advocate position, the Zoning Regulations Review process has exposed and magnified problematic aspects of public policymaking process in this domain.  It’s bad enough that, constitutionally, decisions about local zoning are made by five unelected Commissioners.  At very least, we need to do what we can to create a structure in which those decisions are as fully and as accurately informed as possible.  To put it bluntly, we can’t just let OP vet OP’s policy prescriptions.  From the standpoint not only of public input but of quality control, the Zoning Commission needs access to an independent voice with expertise on these issues and it should come from someone who has been specifically charged with the task of representing the public interest.  This is a resource that the Council, as our elected representatives, can and should provide to the Zoning Commission.  

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* The Office of Zoning (OZ) is an administrative agency that supports the work of the Zoning Commission and the Board of Zoning Adjustment.  OZ does not have any decision-making role in development cases. It handles things like scheduling, publicity, education, and record-keeping.  In recent years, its major achievement has been IZIS an online case management system that provides online access to the complete administrative record of cases in progress (as well as at least some of the documents for cases that have already been decided).  

Busytown Planners

I've been struggling to find a metaphor that captures what's been happening with the ZRR.  OP keeps drafting and redrafting but the proposed new code never gets better and, at this point, it's significantly worse than the admittedly-less-than-optimal existing code.  Rube Goldberg and Frankenstein both conjure up the cobbled-together unwieldiness of the draft, but not the experience of working through successive iterations only to realize that the hole OP has dug us into keeps getting bigger and bigger.  

Then it came to me -- MR. FIXIT!!  As a kid, I wasn't a big fan of Richard Scarry (The editions of his work that were around back then were pretty sexist, and I hate visual clutter), but, as a young urbanist, I did love Busytown (a vibrant, walkable, and diverse, 24/7 community!).  And my favorite character was Mr. Fixit -- a fox in handyman's clothing who confidently rose to the challenge of fixing everything that was broken (and quite a few things that weren't). Here's a sample of his handiwork:

[Mr. Raccoon is having a bad day.]

"I'd better call Mr. Fixit," he said. . . .  

        He arrived home just as Mr. Fixit was leaving.  Mr. Fixit had spent the entire day finding new leaks. 
      "I will come back tomorrow to fix the leaks," said Mr. Fixit.

Moral of the Story:  Sometimes the cure is worse than the disease.  This is one of those times.  It won't get better if we keep relying on Mr. Fixit to clean up the mess he's created.  

Somewhat cheerier addendum:  The fact that it takes many years to do something really badly doesn't mean that it has to take even longer to do something right.