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.  

Learning from Philadelphia

In a previous post, I suggested that the job of streamlining DC's zoning code could (and should) be outsourced.  And that making the code more user-friendly doesn't necessarily require changing the rules.  It's something that could be achieved, in many cases, simply by changing the format or by creating better finding aids.  (There's some really low-hanging fruit here.  For example, the existing code would be significantly easier to use if it were available online as a single, searchable PDF.)  

User-friendliness has played an interesting role in debates over the ZRR. On the one hand, it's used to justify (and/or mask) many changes to the code that are, in fact, quite substantive.  Judging from their rhetoric, the powers-that-be (including all the Mayoral candidates who ran in the Democratic primary) take this objective so seriously that they are willing to sacrifice the existing code on its altar.  On the other hand, despite all of the lip service paid to user-friendliness, no one actually seems to be holding the text presented to the Zoning Commission up to that standard.  They just assume it has been met.  But it hasn't.

Setting aside the very real possibility that some folks are being disingenuous and others just aren't doing their homework, I think two things are going on here that explain the gap (more like a chasm, really) between the rhetoric and the reality.  The most obvious one is that people expect zoning regulations to be painful to read.  So the fact that these supposedly new-and-improved regs are so convoluted isn't held against them -- especially by people who have little or no basis for comparison.  ("Wow, if this new code is user-friendly, imagine how bad the old code must be.  That's why it's so crucial that we replace it.")

But the other problem is that user-friendliness (or lack thereof) is best judged by actually trying to use the code rather than by simply reading it.  As luck(!) would have it, I've accumulated a fair amount of experience using the proposed code -- both this draft and the previous one -- because people from a variety of different neighborhoods have asked me specific questions about whether and how the new regulations would affect development in their communities.  This gives me a different perspective on the text than that of people (including the Zoning Commissioners?) who are evaluating the draft code after reading it straight through, as you would a book.  

This reading-the-text-from-cover-to-cover approach begs some very practical questions that would confront a typical user and obscures many of the problems such a user would encounter.  Among the questions begged -- where do I start and how do I know when I'm done?  (A 980 page text isn't user-friendly if you have to read the whole thing to be sure you've found the right answer to your question.)  Among the problems obscured -- contradictory information in widely scattered sections that apply to the same zone, lack of cross-references, prohibitions that are not explicit but must be deduced from what is not mentioned, ambiguities that arise from categories that are broad and/or not mutually exclusive. 

As I worked with the proposed new code and  began to discover just how problematic it was, I started analyzing what was going wrong and why.  Since some of the answers seemed pretty obvious to me, I wondered whether planners in other jurisdictions did things "my" way or whether they had taken the same approach to these issues that OP has.  

So I looked at Philadelphia, whose 50 year-old code has recently been replaced with an updated version that has been described in similar terms to what we're being told about the ZRR (It's streamlined and more user-friendly.  There are more visuals and more charts).  Lo and behold, Philly did it right.*  And what they produced looks nothing like what OP has produced.  To start with, their new code is a couple hundred pages shorter than their old code was, while the ZRR is couple hundred pages longer than our existing code.  (I counted an extra 299 pages.  OP claims it's "only" an additional 200 pages -- and has started to embrace redundancy as a selling point for the new code.)

Because this post is already getting long, I'll give just two examples of how we can learn from Philadelphia.  The first involves zone definitions and demonstrates how easily the provisions of DC's old code could be represented in a much more user-friendly way. (It also explains why, if the changes proposed by the ZRR were made, DC's new code could NOT be summarized in such an easily accessible manner.)  My second example focuses on use tables and compares one from the ZRR with one from Philly's new code. It suggests how incompetent OP's draftsmanship has been, as well as how far short of the mark the current text is if our goal is to create a user-friendly zoning code.

[I'm new to blogging, so I'm not sure how legible the images in this post will be and how that will vary depending on what platform you use to access the blog.  If you can't see what you need to see, you can find a pdf of the relevant images here.  There are also embedded links for three of the four images discussed below but they don't lead you directly to the specific page being discussed -- just to the document it came from.]

Example 1:  

Here's what a summary of a residential zone looks like in DC's current zoning materials:

Summary of Zone Districts

Updated April 1, 2013

Districts		Summary
R-1-A		Permits matter-of-right development of single-family residential uses for detached dwellings with a minimum lot width of 75 feet for residential, churches, and public recreation and community centers and 120 feet for schools, a minimum lot area of 7,500 square feet for residential, churches, and public recreation and community centers and 15,000 square feet for schools, a maximum lot occupancy of 40% for residential, 60% for church and public school use, and 20% for public recreation and community centers and a maximum height of three (3) stories/forty (40) feet (60 feet for churches and schools and 45 feet for public recreation and community centers). Rear yard requirements are twenty-five (25) feet, side yard requirements are eight (8) feet.

And here's how a similar zone is depicted in Philadelphia's new zoning materials:

I think it's fair to say that Philadelphia's approach represents a significant improvement over DC's.  The information is well-organized and clearly presented.  There's a lot of content, but the layout is uncluttered and it's easy to find what you're looking for.  So I understand why, when our Office of Planning says that they're adding graphics and tables to make the zoning code more user-friendly, people think that's a good thing.  Replacing a wall of text with charts, drawings, and photos is a better way to explain what kinds of development is allowed in a particular zone.  

But over the course of the ZRR, OP has not produced a document similar to Philadelphia's.  In fact, it has created a proposed new code that (unlike our current code) would be virtually impossible to summarize in such a manner.

If you page through Philadelphia's document, you'll see that their new code has 35 zones.  If you look at the chart on the first five pages of the ZRR (and do a bit of simple addition), you'll discover that DC's proposed new code would have 142 zones.  It's hard to create a "Quick Reference Guide" when you have that many zones. And if you tried to make one for the ZRR, following the same format that Philadelphia used, it would look really bizarre for a couple of reasons.  

The first is that numerical order in DC's new code (unlike Philly's new code -- or DC's current code, for that matter) doesn't really correspond to increases in scale, density, intensity, or variety of uses.  So while in Philadelphia's code you see a progression (or, more accurately, a series of progressions), a ZRR version of the same type of document would show you a jumble.  Either the zones would not be listed in numerical order (in which case it would be hard to find the one you were looking for) or the zones would be listed numerically, and the first four sets of images you'd see would go from single-family detached, large lot to single family detached, smaller lot, to semi-detached, to rowhouse in a progression that seems to make sense, but then suddenly, you'd be back to single-family detached, and the lot sizes would go up and down. Pages later, you'd see rowhouses again, and, after that, some single family detached homes might reappear (depending on how the A-1 (currently R-5-A) zone is represented).  

The second reason is that anyone who set out to produce such a Guide would have a difficult choice to make regarding the photographs used to typify each zone.  Either many of the zones would look indistinguishable from one another (because they allow the same type of housing stock) or, if an attempt were made to vary the images used as examples, the Guide might lead readers to focus on visual attributes that are actually irrelevant to the zone definition.

In sum, our existing code could easily be made more user-friendly without changing its content.  Yet instead of moving us toward greater user-friendliness, the ZRR, by eliminating overlays and proliferating zones, would actually represent a major step backward.

Example 2:

My second example compares Philadelphia's new code with DC's proposed new code, by looking at the difference between the end products that resulted when each city's drafters decided to create use tables.  A use table is designed to show which uses (e.g. residential, retail, commercial, light industrial) are allowed in particular zones. 
Here's a use table from Subtitle F of the ZRR (you can find it on page 38), which governs Apartment (or "A") Zones:

As you've probably noticed, every cell in this table contains the same content -- an "S."  Do you know what "S" stands for?  If you answered "Special Exception," it's probably because you noticed that phrase in the table's title (or because you're an ANC Commissioner!). You won't find the answer in the table's legend, however -- because the table has no legend.  

Seriously, if every cell in a table is going to be filled with the same information (which is already presented in the table's title), then you might as well just make a list. There's zero content added by creating 60 boxes filled with "S"s.  It's as if someone created a table for the sake of creating a table (or because they were told tables were "user-friendly").  To make matters worse, there actually is content that could obviously and usefully be included in those cells -- that is citations to the regs that lay out use-specific standards for granting a special exception.  These regs typically follow the table, but the table doesn't tell you that.  And a user may not find it easy to locate the relevant reg without a cross-reference because

• there aren't always use-specific standards; sometimes only the generic special exception standards must be met;

• some use-specific standards appear to have been inadvertently omitted; 

• those use-specific standards that are included aren't always put in the same order or labeled in the same way as the use was listed in the table.  And, in any event, the labels aren't highlighted in the text. So you have to keep wading through all the use-specific standards following the table until you find the one you’re looking for or conclude that one does not exist.

It's also important to realize that this isn't the only use table governing the Apartment zones -- there's also one on page F-32 (By Right Uses) and another on page F-36 (Accessory Uses).  Of the 35 use groups (which I happen to know exist because I read about them in a different Subtitle), 3 are listed in all three tables, 6 are listed in two of these tables, 16 are listed in only one table, and 10 aren't mentioned in any of the tables. You're supposed to deduce from their omission that these last 10 use categories are prohibited in A zones.  And, presumably, even after you've found the use you're looking for in one table, you are expected to keep looking for it in the others as well -- since it might recur.  Not that the use table itself tells you any of this.  

At a more trivial level, note that while the chart governs "A" zones, none of those zones are identified by their new "A" names.  Here's my best- case scenario for what the top of the chart would look like if they were: 

Uses	A-1 A-6	A-2 A-7, A-8, A-9	A-3	A-4, A-5, A-10, A-11
Arts, Design, Creation	S	S	S	S

Now here's (part of) a use table from Philadelphia's new code:


It actually is user-friendly and here are some reasons why:

First, the coding is intuitive (Y=Yes; N=No) and, even if it weren't, there's a legend at the top of the chart.  By contrast, the use tables in the ZRR don't include legends and their coding is arguably counter-intuitive.  When you see A and P in a use table, for example, you might think A=allowed and P=prohibited.  But,  in fact, A=accessory and P=permitted.  (Of course "permitted" itself is ambiguous in this context -- could mean requires a permit, rather than is a matter-of-right use. And an "A" use can, itself, be "P.") 

Secondly, an important attribute of the Philadelphia use chart is that it is easy to use regardless of whether you start with a location/zone and want to determine acceptable uses or whether you start with a use and want to know where it can be located.  Both kinds of questions are the sorts that would predictably send people to a zoning code.  So, for example, you might already live in an RSD-2 zone and wonder whether you (or your next door neighbor) can open a home daycare.  Conversely, you might be planning on opening a home daycare and want to know, as you house-hunt, what kind of zoning you should be looking for.  This chart makes it easy to answer either question and to compare the answers across zones (or across uses). 

The table also handles the relationship between new and old zones well.  Old zones are listed in the first row (which presumably will disappear after a transitional period between codes) and new zones are below. So there's a convenient bridge between codes.  More substantively, it helps that the new zones share the organizational logic of the old zones (the higher the number, the greater the density) but, at the same time, that the new names are all actually new.  In the ZRR, by contrast, "R-2" is the new "R-1-B" while "R-3" is the new "R-2."  That will be a source of endless confusion as people look up prior decisions.  

Philadelphia is doing a similar kind of renumbering but by having RSD-2 (rather than R2) replace R1A, their drafters avoid such confusion.  And the move from R to RSD adds a bit of useful information -- the R still signifies residential zones, but adding the SD tells users that the zone is characterized by single-family detached housing -- whereas RSA denotes a zone where the norm is single-family attached housing, as opposed to RM zones, which allow multifamily housing.  Creating labels that actually tell you something about the zone is helpful.  

Also, note the cross-references in rightmost column of the chart.  If a use requires a special exception and there are specific standards for granting it, the table refers you to the regulation number where those standards can be found.

Finally, it's useful that all the residential zones are covered in a single (two-page) table.  (The ZRR has more than a dozen such tables, spread out over multiple Subtitles).  The visual division of uses, marked by major categories in bold/gray with subcategories beneath makes the organization of the chart immediately apparent and very functional (vs. the not-quite-consistent alphabetization used in the ZRR tables).  And it saves users an amazing amount of effort when tables just say no (or "N") regarding prohibited uses, rather than force the reader to plow through multiple tables (and a chapter on uses) to deduce which uses have been omitted from the zone standards. 

I'm not saying that there's no room for improvement in Philadelphia's new code.  I don't understand, for example, why the contents of the footnotes aren't included in the same PDF as the table itself.  And I hate American Legal's interface for the online code -- because, for example, it uses frames and won't provide a URL that links directly to the PDF of the residential use table.  But the Philadelphia code does show you the difference that competent draftsmanship makes.

The ZRR is not competently drafted.  It's emphatically not "good enough for government work."  In fact, I'm shocked that any major city would consider adopting regulations that are this poorly written.  And the text is only getting worse as OP struggles to add patches and carve out exceptions.  Clearly, this is an agency that lacks the in-house capacity to write user-friendly regs.  So rather than put the same text back in the blender for yet another whirl, it's time to separate the task of amending the code from the task of streamlining the code.  Let OP submit its substantive changes to the ZC as text amendments and, when that process is complete, outsource the task of making the code more streamlined and user-friendly to people who actually know how to do that kind of work.
__________
*N.B. I'm speaking about user-friendliness here rather than the content of Philadelphia's new code.  I can't vouch for the latter.

 

Not the Planning Director We Need

Three days into his lame-duckitude, at 6:42 pm on a Friday evening, Mayor Gray issued a press release announcing his appointment of Ellen McCarthy as the new Director of the Office of Planning.

There’s a reason Mayor Gray didn’t make this appointment before the primary.   With controversy over the zoning review heating up, McCarthy would have quickly and predictably become a real liability on the campaign trail.   But now that his hopes of re-election have been dashed, Gray no longer appears to care what DC voters think or want.  McCarthy's appointment is a pretty clear sign that his goal at this point is to push the ZRR through before he leaves office.  The Mayor has always seemed disengaged from the zoning debate (leaving it to Harriet Tregoning) and, I suspect, he has no clue as to how truly screwed-up the draft regulations are.  (Judging from her comments during the round of debates prior to the Democratic primary, Muriel Bowser seems to share Gray's lack of awareness -- though that's somewhat more excusable in a Council Member.  It remains to be seen where David Catania stands on these issues.)

As last month’s OP Oversight hearings demonstrated, the Office of Planning is an agency that has lost the public trust.  And that sentiment was powerfully expressed by citizens from across the city.  In my experience, as well as that of many other neighborhood activists I know, that loss of trust has been a long process, dating back to Ellen McCarthy’s previous tenure as Deputy Director (and later Director) of the Office of Planning. 

Let me acknowledge, up front, that McCarthy did some important work in the 1980s and 1990s – primarily, but not exclusively, downtown.  She’s best-known for her effective advocacy of the kind of residential and arts development that has kept Penn Quarter from becoming a sterile office ghetto.  Both in and out of downtown, she’s also done significant work on historic preservation and on overlays.  But that was before she joined the Office of Planning.  (More about her record there, below.)

McCarthy's career has largely been spent representing property-owners seeking favorable governmental rulings and regulations.   In the seven years since she exited OP (after newly-elected Mayor Adrian Fenty replaced her with Harriet Tregoning), McCarthy, a non-lawyer, has worked at two different law firms, where her role was securing zoning "relief" and approvals for developers.  As you can see from her resume, her career is a classic example of what political scientists call the "revolving door" phenonmenon -- in which the regulators are drawn from (and hope for future employment with) the regulated.  Not surprisingly, the end result is that the public good gets sacrificed to (or reconceived as whatever best serves) private interests. 

In addition to facing conflicts-of-interest regarding former and future clients,  as Planning Director, McCarthy will also be making decisions that impact her husband's work.  Richard Bradley is the Executive Director of the Downtown DC BID (Business Improvement District) -- which means that his salary is paid by some of the largest commercial landowners in the city.  He reports to a Board of Directors that includes representatives from Akridge, Douglas Development, Hines, Quadrangle, Vornado/Charles E. Smith and other major developers.  As should be obvious from that list, Bradley's colleagues have interests not only downtown but citywide.   And, of course, downtown development issues are a central to OP's agenda in the Zoning Regulations Review.

Whose interests McCarthy will serve as Director of the Office of Planning isn't just a hypothetical question.  There's a track record here, both from her previous experience at OP and from her recent performance as one of 14 Council-appointed "community representatives" on the Zoning Review Taskforce.

McCarthy's tenure at OP was characterized by an emphasis on deal-making rather than planning, and by her manifest contempt for the democratic process -- documented in FOIA'd emails involving the Casey Mansion project, as well as evident in the community meetings and public hearings I attended over the course of the Upper Wisconsin Avenue Corridor Study.  During the UWACS, McCarthy tried to do an end-run around the legislative process by starting to implement this highly-contested plan through the PUD process before it was even submitted to the DC Council -- despite her explicit promise to the Zoning Commission that she would refrain from doing so.  The plan ultimately fizzled when McCarthy failed/refused to do the infrastructural studies that Kathy Patterson requested as a condition of her support for the project.

The UWACS was my first real exposure to DC development politics and I decided to get involved in it because I genuinely -- and, in retrospect, naively -- believed that what was being proposed was a collaborative planning process that would put an end to (or at least lower the stakes of and reduce the rancor associated with) what seemed like endless disputes over local development projects.  I was shocked to see OP, under McCarthy's leadership, treat the project as some kind of bizarrely antagonistic cat-and-mouse game between government and citizens.  No attempt was ever made to find common ground, to evaluate rival claims or assumptions through empirical study, to address the concerns of local residents, or to learn from critiques and use them to build a better proposal.

Unfortunately, the same dynamic has continued with the ZRR. In fact, OP's tactics in the  ZRR and the UWACS are eerily similar, as you can see from my real-time account of the latter. This is probably not a coincidence, since Jennifer Steingasser, who has been handling the outreach on the ZRR, was McCarthy's understudy at the time of the UWACS.

McCarthy's involvement in the ZRR has obviously been much more limited, but she clearly has not taken the "community representative" part of her role on the Zoning Review Taskforce seriously.  She neither solicited community opinion nor kept the public informed about the proposals that OP presented to the Taskforce.  And once substantive discussion about the ZRR gradually began to emerge on the Chevy Chase Community listserv, McCarthy was quick to denounce critics of the draft regulations as character assassins, alarmists, and conspiracy theorists.

Interestingly, her example of this alarmism involved transit zones.  McCarthy assured her neighbors that "In fact, neither the Office of Planning nor the Zoning Commission have determined what specific actions will be recommended for Transit-Oriented Development zones, and both groups have been quite explicit that one size does not fit all, and that, if the concept of a TOD zone is adopted, it will only be applied on a case by case basis, to determine where it might be appropriate."  Yet what do we see in the final draft?  Precisely the one-size-fits all approach that neighbors expressed concern about.

The bottom line: If we want to restore public trust in the Office of Planning and if we want to adopt a well-written zoning code that will protect the interests of residents and neighborhoods as well as commercial property-owners and developers, then Ellen McCarthy is not the Planning Director we need.  Hopefully our next Mayor will make a better choice -- someone who has respect both for the hard work involved in actual planning and for the community which s/he is appointed to serve.  

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

Where DC's Office of Planning Expects Half of the City's Growth Over the Next 8 Years

Cluster	Neighborhoods	Population Added
25	NoMA, Union Station	15,342
27	Capper/Carrollsburg, Navy Yard,  Near Southeast	10,084
2	Columbia Heights, Mt Pleasant, Pleasant Plains, Park View	8,539
8	Downtown, Mt Vernon Square, Chinatown, Penn Quarter	8,419
21	Bloomingdale, Eckington, Edgewood, Truxton Circle	8,077
39	Congress Heights	5,579
37	Barry Farm, Sheridan, Buena Vista	5,279
18	Petworth, Crestwood, Brightwood Park	5,231

Together these clusters account for over 66,000 of the more than 131,000 residents OP anticipates will have been added to DC's population between 2010 and 2022.  This table includes all areas with a projected increase in population of 5,000 or more. 

As the map below (based on the same data) suggests, swathes may be a more useful metaphor than clusters in imagining where population growth is likely.  The darker the area, the greater the estimated population increase.   

Source: District of Columbia State Data Center, Indices 2013, Chapter 2, p. 40

Note that these numbers don't assume that much progress will have been made by 2022 on the redevelopment of the Walter Reed or the Saint Elizabeth's East campuses.  The anticipated 2022 population at Walter Reed (Cluster 40) is 844 people, on a site that the Mayor has said will ultimately house 4000 residents.  At Saint Elizabeth's (Cluster 43), the 2022 population is estimated to be 541.  That campus is planned for 1300 new residential units (which probably translates to over 2000 people).  The McMillan Sand Filtration Plant is located in Cluster 21 (which does make the list of high-growth areas) but it's unclear whether -- or to what extent --the estimated population increase is attributed to that site's redevelopment.