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 

---

[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.

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.

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.  

The Height Act is back in play

So much for Home Rule -- Tregoning's gone, Gray's disgraced, both the Council and public opinion polling came out strongly opposed to changes in the HBA, but Issa keeps pressing the issue.  And Eleanor Holmes Norton, whose office disclaimed any knowledge of the bill yesterday, is the co-sponsor.  

The text of the bill is available here.

[[Note that NCPC proposed communal recreational use for rooftop structures, but the bill would allow these penthouses to be private residential space.]] 

And here is WBJ's coverage:  

Updated: Mar 11, 2014, 11:30am EDT

House panel to weigh change to D.C. Height Act

Daniel J. Sernovitz

Staff Reporter- Washington Business Journal

House lawmakers are slated to consider making the first change in more than a century to the federal law that caps building heights in D.C.

The proposed change, which would allow uses like restaurants in the penthouse areas of certain buildings, wouldn't result in Manhattan-style skyscrapers in the District. But its passage could be an indication Congress is open to additional changes to the Height of Buildings Act of 1910 following a heated debate of the subject last fall.

The bill is slated to be considered by the House Committee on Oversight and Government Reform, chaired by Rep. Darrell Issa, R-Calif., on Wednesday. Issa has said he believes the measure is  the first step in a larger debate around the Height Act and has urged the District and National Capital Planning Commission to consider other potential amendments to the law. If it passes the committee level, the bill would need to be approved by the full House and Senate and signed by the president before it can become law.

The proposed bill,  based in part on a recommendation from the NCPC and one of the least controversial parts of the height debate, changes the 1910 law by  permitting "human occupancy" in the penthouse space of buildings as long as those spaces are no taller one story or 20 feet or less above a building's roof. Building owners have typically used those spaces for mechanical equipment. In recommending the change, the NCPC said those spaces could be used as public amenities and generate additional revenue for their owners while not substantially impacting D.C.'s skyline.