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  The theme of the first piece is that the code we're operating under now has been outdated since 1970.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one of the authors of the first article testified that the proposed new code was inadequate and already, itself, out-of-date -- therefore, it is imperative that it be adopted immediately!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.

Affordability, Part 2: Opportunity Costs and "Highest and Best Use"

One reason I like to do outreach on zoning issues is that I learn a lot from these forums. Each neighborhood has its own set of development issues -- some are unique; others are variations on common themes or harbingers of things to come. And every neighborhood has a wealth of local knowledge, eagerly shared by people who have watched and analyzed what's been going on around them. The social scientist in me -- I'm a former college professor with an interdisciplinary background in law and society -- is fascinated by the variety of ways in which the same rules play out differently across the city.

This post was inspired by Ward 1, where "condo-ization" puts single-family housing stock and neighborhoods at risk.

"Single-family homes" can (and do) accommodate a variety of different types of households -- nuclear families with or without kids, multi-generational families, groups of roommates, boarders, live-in caregivers, and renters of accessory units. Over the course of its lifespan, the same house may move fluidly between these various types of living arrangements.

What makes condo-ization problematic is that, once a property ceases to have a single owner, this fluidity is lost. Suddenly, even though it's still one building, the house is no longer one property. And finding a single owner who is willing and able to re-acquire all the units post-conversion (probably over time and with the possibility of holdouts) seems unlikely.

In neighborhoods like Mount Pleasant and Lanier Heights, residents have seen that condo-ization is pushing housing costs up -- not down. Rent in a group house is affordable to recent college grads and other newcomers who wouldn't have the financial means to live in the same house if it were divided into condos selling for upwards of $500,000 each. Increasingly, condo conversions are effectively pricing older homes in these communities out of the single-family market. They're also changing the look and scale of historic rowhouse neighborhoods by incentivizing pop-ups and pop-outs.

In general, the most affordable housing is in older buildings. Which means that when older residential buildings get torn down and replaced by newer residential buildings, the net result is likely to be increased housing costs. Basically, it only makes sense to tear one building down and build another to serve the same function if the replacement building will produce substantially more income. When bigger buildings replace smaller buildings, part of the increase in income comes from the fact that there are more units to sell or rent, but it's also the case that a new building (or unit) will most likely command a higher rent or sales price than an older one -- in part, just because it's new but also because, from a development perspective, projects that command higher rents are more attractive, especially in places where land values and existing properties haven't yet realized the full market potential of the area. That's why seemingly every new multifamily project in DC is a"luxury" condo or apartment building featuring lots of smaller units.

Subdivision is a more ambiguous phenomenon than teardowns -- it can happen for a variety of reasons (e.g. if there's no market for single-family homes of a particular size in a particular area) and its economic consequences may vary. In areas where single-family homes are scarce and in high demand, downzoning (and/or other restrictions) may be necessary to preserve existing housing stock. In the past, some rowhouse neighborhoods relied on historic designation to protect neighborhood scale and character. But, increasingly, historic preservation hasn't proven sufficient -- which, presumably, is one reason why Georgetown requested (and was granted) a reduction in allowable building heights (from 40 to 35 feet in rowhouse zones) in the ZRR.

There's a broader issue here -- and it's not limited to historic neighborhoods or areas, like Lanier Place, where the existing zoning is out-of-sync with the built environment. In general, once OP starts loosening zone definitions, new ways to use land are put in competition with existing uses. And where the existing uses are single-family homes, those will quickly cease to be the "highest and best" (i.e. most lucrative) use of the property. So the conversions begin -- and, as Ward 1 residents have pointed out, some of those conversions will not be reversible.

If we value single-family housing (or if we want garden apartments, or if we want neighborhood-serving retail, or any other relatively small-scale type of development), then we need to have restrictive zoning that is consistently enforced. Zoning that restricts the use of some parcels to single-family housing (or to some other specific use) doesn't have to mean suburbanization -- different types of zones can be located in close proximity to each other in the same neighborhood. The issue is limiting the range of potential uses in competition for the same property, so that market forces don't overwhelm desired types of development.  Which, after all, is the raison d'etre of planning and zoning.  

Accessory Apartments: Toward a More Productive Conversation about Revisions to the Zoning Regulations

To me, one of the most troublesome aspects of the ZRR process has been that proposed new code is being sold not on its merits but on the basis of a few specific changes -- which clearly don't require 980 pages of new text to implement. Ironically, the result of this approach has been to deflect attention not only from the text of the code but also from the substantive analysis of those particular issues. To show you what I mean, I've taken one of the most publicized reforms -- accessory apartments -- and laid out the kind of discussion that I think we should be having.  

Abstractly, what we've got here is a series of policy proposals that should be analyzed as such -- i.e. as means to ends or as solutions to problems. We need to push OP to move beyond analysis that lives at the level of "all the cool kids are doing it" or "growth is inevitable" or "more choice."  OP needs to do actual planning and to justify their recommendations based on factual and location-specific analyses.  In other words, for each major change, OP needs to communicate (a) here's the problem we're addressing, (b) here's why we chose this approach, (c) here are the pro’s and con's of the policy we’re recommending and (d) here's what we're doing to maximize the pro's and to minimize or mitigate the con's.  (Both a and d should be neighborhood-, area-, or zone-specific in some cases.)  Once the proposal has been articulated in those terms, OP needs to treat citizens as partners and as sources of local knowledge – asking such questions as "what problems do you envision?” and "what solutions (or safeguards or alternatives) would you suggest?" Outreach should involve OP learning from citizens – not just trying to educate them.

Take accessory apartments, for example. Here's the policy proposal: let's encourage the production of accessory dwelling units by allowing the creation of external rental units in single-family neighborhoods and by eliminating the requirement that internal units obtain BZA approval. Henceforth, BZA approval would be required only in cases where the accessory building is newly-constructed (or where an existing accessory building is enlarged); simple conversions of outbuildings to residential use, as well as all internal accessory units, would become matter of right.

An intelligent and well-crafted accessory apartment policy would be based on answers to a series of questions like these, none of which OP seems to have asked.

Affordability

o   Is there any reason to assume that homeowners, motivated by the desire for income generation, would rent these units at below-market rates?

o   Wouldn't adding accessory apartments  to single-family homes actually increase the price (and appraisal/property taxes/insurance premiums) of single-family homes? Presumably, the new dwelling adds value to the home (and more value than a non-income-generating addition would).  Will people who don't want to be landlords risk being priced out of the single-family housing market in some areas?

o   If the affordability of external accessory apartments is primarily a function of their small size (450-900 SF), wouldn’t it make more sense to offer some kind of homesteading or sweat equity option with free land offered in exchange for building a small residence that will be owner-occupied?  Could a pilot project be done on public land? 

 Enforcement Issues: Tax and Safety

o   How will DC government insure that homeowners who create matter-of-right units (a) go through the required safety inspections and obtain a certificate of occupancy for the accessory apartment and (b) get business licenses and report rental income?

o   Does DCRA have a plan for bringing accessory apartments (current and future) into compliance?  If BZA hearings will no longer be required in most cases, what mechanism will DCRA and OTR have for identifying which properties have accessory apartments? Will DCRA be given additional resources to devote to ensuring that accessory apartments comply with tax and safety laws?

o   How will we ensure that external accessory apartments are sited in ways that provide quick and effective access to firefighters?  Presumably, that could be a criterion for BZA approval of special exception requests (though it doesn’t appear to be one included in the proposed regs), but what about conversions of existing outbuildings to apartments, most of which would, presumably, be matter-of-right?

Managing Growth

o   Where do we want people seeking housing of 900 SF or less to locate? 

o   Where will accessory apartments put population?  Where are building lots, housing stock, income levels conducive to the development of such units?  How does the answer differ depending on whether we’re talking about internal or external accessory apartments?

o   Do we risk diverting population that, in the absence of more accessory apartments, would move to the multifamily housing we're trying to build elsewhere in the city? Or that might buy and renovate small houses in areas that need investment if converted garages weren't available as a rental option?

o   If our goal is to restore lost population, should accessory apartments be a targeted intervention in areas that have actually lost population?

Infrastructure

o   Are there areas where infrastructure --e.g. schools, sewers, power grid – would be further stressed by the development of accessory apartments?  Bloomingdale, for example, has had flooding issues with basement units.

                       

o   How do we envision water/power/sewer hook-ups working for external accessory apartments and are those regs ready for rollout simultaneously with the ZRR?

o   Are we willing to allow accessory apartments that are "off the grid"? 

o   Are there any advantages to accessory apartment in outbuildings that cannot be achieved simply by allowing internal accessory apartments?   Certainly the creation of affordable housing and opportunities to age-in-place could be achieved with a policy that limited such apartments to internal units.

Experience Elsewhere

o   What kinds of regulatory structures have other jurisdictions put in place? What works? What doesn't?

o   When zoning restrictions have been removed in other areas, how many accessory apartments have been built? Where/by whom? What kinds of units were built (e.g. internal vs. external, size)?

o   How costly has construction of external accessory apartments been? How are they financed? Do we risk (or how do we prevent) another kind of foreclosure crisis if elderly people in gentrifying neighborhoods are induced to add such apartments in an attempt to hang on to their homes as property taxes rise, yet end up unable to pay off the additional debt incurred in building these units?

Thinking Ahead

o   What will we do if a new owner chooses not to use an ADU as a source of income-generation? Should the tax assessment on the property be lowered?

o   What happens if the renters of an external apartment want to own it (but can't afford the primary house) and the seller has a buyer for the primary house who doesn't want to be a landlord? Will we allow lot divisions?

o   Will temporary ADUs be allowed (e.g. the modular medicalized granny flats currently being marketed)? How/will their value be reflected in tax assessments?

o   Is the 6 person total limit per lot really enforceable or sensible?  Other local jurisdictions typically just restrict the number of residents in the accessory apartment to 2 or 3.  This seems like a less problematic approach since it means that changes in the landlord’s family (elderly parents move in, twins are born) don’t create a situation where the choice is between evicting tenants or violating the law.

I'm not inherently for or against accessory apartments.  (In fact, I’ve actually lived in both kinds -- an English basement on Capitol Hill and a cottage in the backyard of a home in Princeton.)  But I think that the ZRR provisions on accessory apartments are poorly-conceived and that the most likely outcomes are a few real nuisances, an occasional tragedy, lots of tax evasion, and no real increase in the production of affordable housing (as well as a likely decrease in the affordability of already expensive houses).  

And, at the level of process, I think that the approach being taken is very destructive of community.  At the same moment we’re being urged to live closer to each other, OP is moving away from the one mechanism (BZA review) that gives homeowners who want to be landlords a powerful incentive to listen to and to address the concerns of their neighbors. Instead of “work together to find a mutually agreeable outcome before you ask us to let you do this” the new message is “just maximize your profit and let the chips fall where they may.”  Which gets even nastier if we’ve got a situation in which the only way to insure compliance with tax and safety regs is to have neighbors turn in neighbors to the authorities

We deserve (and we need to demand) better planning than we’ve seen on this issue – and on others in the proposed new zoning code.  It is up to the Zoning Commission to exercise quality control and to vet OP's recommendations before adopting them.  The format that the Commission used in the first rounds of its public hearings on the draft code didn't provide the focus (or elicit the substance) necessary to do that job well.  My take is that if the ZC's next step was a decision to proceed as they did with the Green Area Ratio -- i.e. by considering specific text amendments to the existing code, one topic at a time -- it would give them the opportunity to make better decisions on this and other issues raised over the course of the zoning regulations review.

We've Got Issues...

While participating in public hearings and outreach efforts, I've been keeping a running list of issues various residents and neighborhoods have with the proposed new zoning code.  Here's the current version.

 

Major omissions:

The proposed new code fails to:

·        Address the issue of housing affordability and fix what’s broken in the current inclusionary zoning provisions.

·        Implement neighborhood conservation measures – e.g. to prevent pop-ups, dig outs, McMansions, conversion of housing stock to other uses, condo-ization of houses, out-of-scale development, etc. or to provide more effective buffering between zones with significantly different scale, uses, or intensities of use.  Increasingly, a neighborhood that is not protected by historic preservation will not be protected at all.  And historic preservation itself is becoming less protective than it used to be.

·        Incentivize development in areas that have suffered from disinvestment.

·        Apply the Green Area Ratio and affordable housing requirements to the newly expanded downtown. Analyze what it takes to create attractive and livable downtown neighborhoods and provide mechanisms for insuring that infrastructure, open space, and other public facilities and amenities are provided as heights and densities increase.

·        Make the regulations more user-friendly.   Somehow the Office of Planning has managed to draft a new code that is even more opaque and unwieldy than the existing code.  Moreover, because the new code starts from scratch and uses some of same terms but defines them differently, the status and applicability of previous case law is unclear.  

·        Provide mechanisms for effective representation of community interests in development review processes.

Significant policy changes

The proposed new regulations would:

•                 Effectively eliminate single-family residential zones.

•                 Encourage the conversion of houses into apartments.

•                 Allow more commercial activity in residential zones.

•                 Threaten the integrity and viability of neighborhood commercial districts.

•                 Activate alleys by allowing home-based businesses and rental apartments to be located in garages and other out-buildings and by allowing residential development of alley lots of 450 SF. 

•                 Minimize opportunities for public input and give developers and property-owners more control over development and land use decisions.

•                 Rely on generic “conditions” with no enforcement mechanism or penalty for non-compliance rather than on BZA review and project-specific requirements.

•                 Eliminate the ability to create overlays; impose one-size-fits-all policies citywide.

•                 Deliberately make it more difficult and expensive for people who live in the city to own a car.

•                 Treat every area within one-half mile of a Metro station the same with respect to parking requirements -- regardless of existing conditions.

•                 Significantly expand “downtown” to encourage maximum heights and densities in areas beyond the city center.