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 24th and discussed
at the Zoning Commission’s July 28th 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 4th, 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...
[1]
Low density residential zones where only detached, semi-detached, and rowhouse
construction is allowed.
[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.