We Deserve Better

Watching the videos of the Zoning Commission’s July hearings, a few things became clear:

1.  The ZC is being asked to make the kind of decisions it was never intended or structured to make.

2.  In the absence of both electoral accountability and the data necessary to make intelligent and well-informed choices, a majority of the Commissioners seems comfortable making these decisions based solely on their own personal preferences or beliefs.  Chairman Hood has repeatedly resisted such an approach -- see, e.g., his recent admonition: “Why don’t we take self out of it . . . and try to think of the city as opposed to what we personally would do.” -- but the other two Mayoral appointees seem to pay him no heed.

3.  Unless there’s a major shift in the political landscape, the likely result will be that three individuals, none of whom has been elected, will be determining whether DC upzones citywide, incentivizes the subdivision of larger homes, makes it more difficult and expensive to own a car while living in the city, replaces public input with a developer-controlled market in density credits in neighborhoods like NoMA, West End, and Capitol Riverfront, and decides that single-family residential neighborhoods do not belong in an urban environment like ours.  

These are not policy choices that were mandated by the democratically-adopted Comprehensive Plan.   And I’m fairly certain that none would survive the Comp Plan process.  There’s an easy way to find out.  A new Comp Plan amendment cycle is imminent.  Rather than make these decisions themselves, the Zoning Commission should tell the Office of Planning to get Council approval of these policies through that process before asking the ZC to implement them through the ZRR. 

4.  Finally, it appears that the ZRR hearings scheduled for early September may be crucial.  There are clear divisions of opinion among the Commissioners and the compromise appears to be "let's hear from the public."  Experience tells me that that's literal -- i.e. the Commissioners pay more attention if you show up and speak than if you submit written testimony.

If you don't like what's happening, it's important to push back -- not only at Zoning Commission hearings, but as you talk with and evaluate Mayoral and Council candidates. As residents, citizens, voters, and property-owners we need to demand that city planning represents our interests and not just developers', that it is based on civic priorities that have emerged from robust public discussion, and that it is informed by careful study and understanding of the District's (including various neighborhooods') resources and challenges.  Right now we have none of the above.  We deserve better.

Update

Since I last posted, there have been a few major events.  Here's the "just-the-facts-ma'am" overview, with links to the relevant documents. Commentary on specific issues will  follow in later posts.  

1.   On June 16^th, the Office of Planning proposed some changes (“alternative text”) to the draft code that was discussed last fall.  These changes were framed as reconsiderations of policy based on public testimony.  The text of OP’s proposals can be found here or by going to IZIS and finding Exhibit 725 on page 16 of the log for ZC Case 08-06A.  This is a 90 page document that may be easier to read online than to print out  (It's not page-numbered consecutively and different sections use different formats and orientations.  My home printer choked on it; a friend's worker printer had no problem).  Topics covered include definitions, lighting, big box retail, accessory apartments (formerly "ADUs"), corner stores, camping in alleys (aka Tiny Houses), theater space in residential areas, parking, and downtown.

2.   On July 10^th, the Zoning Commission discussed the alternative text and ultimately voted 5-0 (Michael Turnbull was not in attendance but submitted a proxy) to set a modified version down for public hearing(s).   The Commissioners all agreed that the Lighting section was not ready for setdown.  And because there was disagreement within the Commission on the merits of some of OP’s proposed alternatives, the Commissioners decided to set down both the new and old versions of the rules regarding accessory apartments and parking requirements.  All other provisions were set down as proposed.

3.  Since that setdown decision, a number of new hearings on the ZRR have been scheduled for September. One additional hearing on the original text has been scheduled for September 4th.  Participation in this hearing is limited to people who have never previously testified on any aspect of the ZRR and to ANC Commissioners (regardless of whether they have previously testified).  Hearings on the newly setdown "alternative" text -- at which anyone may testify -- are scheduled for September 8th-11th.  It’s not clear whether you may testify each night on a different topic (e.g. accessory apartments, big box retail, parking) or whether you’re limited to a single appearance and three minutes of testimony.  All hearings start at 6 pm.

Oddly, a revised draft of the alternative text, reflecting what happened at the July 10th meeting, has not (yet?) been produced.  So the ZC has posted three documents for the September 8th-11th hearings -- the original "alternatives" text (Exhibit 725), OP's pre-hearing correction and summary memo (725A) and another OP post-hearing memo (725B) that makes a few changes to definitions, but says nothing about eliminating the Lighting section or asking people to weigh in on the question of whether the "original" or "alternative' texts on accessory apartments or parking is preferable.  

4. Not news, but a reminder:   The record for written testimony (by anyone, on any topic) on the ZRR remains open until September 15^th.  Written testimony may be submitted via the IZIS system or be mailed, emailed, or faxed to the Office of Zoning. 

5. On July 28^th, OP asked the ZC to set down as-yet-unwritten text amendments that would allow 20 foot tall habitable penthouses to be constructed above the roofline as matter of right in all zones except R1-4. The additional 20 feet of penthouse would not be counted toward the height limit in the zone.  Nor would the square footage in the penthouse count toward limits on floor area ratio (FAR), even though penthouse space could be used for any use permitted in the zone -- so it would be the same kind of space (office, residential, restaurant) as the space below the roofline.  This proposal would represents significant upzoning citywide.  

As you can see from OP's description of its proposals, the only constraint on the area (square footage) of such penthouses would be setback requirements and the limit on the number of stories (one penthouse story will be allowed where the building maxes out the Height Act limit; two stories will be allowed everywhere else).  Restrictions based on FAR and/or roof area would be eliminated.  If the ZC isn't willing to eliminate those restrictions, OP advocates loosening them so that adding penthouse space won't involve subtracting space elsewhere.  

Rather than set down these (non-existent) text amendments (filed as ZC case #14-13), the ZC decided to discuss the issue again on September 4th (prior to the public hearing), at which time OP, presumably, will have actual text to present.

6. There's a third ZC case (#14-11) that proposes more text amendments based on ZRR testimony.  These amendments would be made to the existing code and are offered as ways of addressing the pop-up and condo conversion pressures that are currently being faced in R-4 neighborhoods.  The setdown hearing was July 17th,    Another 5-0 vote (with Peter May absent/voting by proxy) for setdown and, once again, the notion that the public hearing with be advertised with alternative text so "all options are on the table."

Well, I tried....

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

Since then, the Office of Planning has released its summary of the written testimony submitted on the ZRR thus far.  So not only do we have OP proposing, OP vetting OP's proposals -- we now also have OP summarizing and characterizing critiques of its proposals. If this is the filter that all written testimony will pass through, then we will never have a serious and substantive debate about how to revise the zoning code.

Concerned about that prospect, I wrote to the Zoning Commission last week.  Here's the letter:

May 9, 2014

Zoning Commission

District of Columbia

441 4^th Street, NW #200

Washington, DC 20001

 RE:  Case 08-06A

Dear Commissioners:

I am writing in response to Chairman Hood’s request (at last month’s Budget Oversight Hearing) that suggestions about how the Commission should proceed in its deliberations on the proposed new zoning code be sent by letter to Mrs. Schellin for distribution to the Commissioners.   In my testimony at the budget hearing, I argued that the process of substantively amending the existing code needs to be separated from streamlining it and that a public advocate position should be created within the Office of Zoning to handle outreach and to provide independent review of proposals that originate in the Office of Planning.  I write today to extend and apply that analysis to the situation you are now facing.

To put it bluntly, you can’t rely on the Office of Planning to summarize the public comments.  Abstractly, it’s problematic enough that we have a system where OP is responsible first for making the proposals and then vetting its own work.   It makes no sense to also give OP the role of characterizing and evaluating critiques of its work product.   That approach will create a soundproof echo chamber rather than the robust policy debate that should inform your decisionmaking.

Ideally, the Office of Zoning should (a) hire someone qualified to do an independent analysis of the public comments and (b) outline what the Commission wants from such an analysis (e.g.  identification of areas of consensus and of controversy, suggestions as to how to break down topics for the next round of hearings, and a list of specific questions to be addressed/answered for each topic).

  

With the May 5^th submission of OP’s summary of written public comments, my concerns are no longer merely hypothetical.   The summary that OP has produced is misleading, erroneous, and unhelpful.  Their agenda appears to be to stifle debate rather than to identify what’s at issue and to find the best way to evaluate and accommodate competing concerns/interests/preferences/factual claims.

Consider, for example, at the issue of accessory apartments.  If you were to rely on OP’s summary, then the impression you’d come away with is that some people are for accessory apartments (and we thank them) and that some people are against (and they are wrong – we’re not proposing what they think we are, they haven’t seen our studies, they don’t understand the current law, and/or they should be talking to a different agency).  OP expresses its willingness to re-write a passage that doesn’t convey its intent and to lower the minimum lot size, but there’s no meaningful reconsideration or refinement of policy based on public input, no additional evidence/explanation provided to justify proposed policies, and no attempt at problem-solving.  This summary is a document that does nothing to help the Commission weigh the pros and cons of various proposals. 

By contrast, if you read the written comments themselves, the most obvious takeaway is that internal accessory apartments are much less controversial than external accessory apartments.  While there is vehement and categorical opposition to external ADUs, no one who testified appears to be opposed to accessory apartments located within the primary home on a lot.   A few ANCs call for the special exception requirement to be maintained for these units, but most of the concerns that are voiced about internal apartments involve creating a mechanism for insuring compliance with tax, zoning, and safety requirements under a matter-of-right regime.   Moreover, if you actually look at the written testimony or at Montgomery County’s Class 3 accessory apartment regulations (rather than rely on OP’s summaries), you’ll find examples of such mechanisms – e.g. requiring a certificate of occupancy or creating a licensing process that provides notice to neighbors and imposes penalties for unlicensed units (as MoCo did).  

In OP’s summaries, none of this information is clearly presented.   And it is helpful information because it suggests that you should (a) consider internal accessory apartments separately from external accessory apartments  (b) flag the compliance issue as a crucial one and ask for more input on that question (e.g. from DCRA, DHCD, and ANCs, and regarding how other jurisdictions handle these issues); and (c) consider external ADUs in a separate hearing that encompasses a variety of other related issues – alley lots, substandard lots, and the appropriate size and uses of accessory buildings.

Long story short, the challenge here is to treat criticism as an opportunity to improve the text, the policies, and the process.  Otherwise, public hearings are pretty much a waste of everyone’s time.   Public testimony has provided the Commission with a wealth of information (as well as a series of unanswered questions).  And the key to making use of that information is to entrust its analysis to someone who is more interested in learning from public input than in dismissing it.

Quality control is the Commission’s job here – and that is a function that no one else in DC government is empowered to perform.  The fact that OP’s proposals do not become law unless/until you adopt them suggests that this role has been given to you for a reason.  Ultimately, the Zoning Commission is responsible for promulgating the District’s zoning regulations.  Residents throughout the city have, collectively, spent untold hours working to ensure that the revision process will actually improve -- rather than simply eviscerate -- the existing code.  Don’t betray them.  Your mission is not simply to “get it done,” but to “get it right.”  And you can’t do that without establishing a more deliberate and deliberative decisionmaking process.  To create that process, you need to break the revision down into manageable pieces and to focus the public debate so that it is more substantive and provides you with the information you need to make intelligent and responsible decisions on a series of complex issues.

It’s a lot to ask, I know – but no more than what you are capable of, and no less than what District residents deserve.

Respectfully submitted,

Sue Hemberger

 cc:  Council Chair Phil Mendelson

I watched the Zoning Commission's hearing online Monday night and learned that I misconstrued Chairman Hood's testimony at the oversight hearing.  He was citing his previous invitation for this kind of input -- not reiterating that invitation.  The problem I've identified remains, but I've got no sense that anyone plans to address it.  My guess is that, unless the ZRR becomes an important issue in the upcoming Mayoral contest, we're likely to end up with a trainwreck of a new code.

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.

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.  

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.  

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.  

Of Needles in Haystacks and Pigs in Pokes

After a lot of thought, I've come to the conclusion that the project of streamlining DC's zoning code and rendering it more user-friendly needs to be separated from the process of making specific policy changes. The blurring of this distinction (in phrases like "updating the code") has created a situation where a host of fairly significant policy changes are buried within 980 pages of convoluted text. 

In some cases, the policy changes are being consciously made and deliberately obscured. There's no doubt, for example, that the Office of Planning realizes that the ZRR will significantly upzone parts of the new downtown and replace the PUD process in those areas with a developer-controlled market in density credits. So when OP chooses not to mention these changes in its outreach materials -- which include a page entitled "Downtown: Main Proposals" -- it's fair to conclude that our city planners don't really want to publicize the facts that they're raising heights by 40 feet and eliminating restrictions on FAR in these areas, and that if there is any money to be gained by auctioning off additional density downtown, it'll line the pockets of developers rather than contribute to the city's infrastructure, provide neighborhood amenities, or be used to further policy objectives like affordable housing.

In other cases, such as "use permissions," a policy decision has been consciously made (let's have fewer and broader use categories), but the implications of that decision don't seem to have been fully understood. At least, that's a generous interpretation of OP's claim (in the same outreach packet) that it is "not proposing to change use permissions" but just to update the code by removing outdated uses like the "penny arcade." The current code distinguishes among different intensities of use. So, for example, it makes a distinction between the zones in which a neighborhood-serving store or specialty store could be located and a zone in which a department store would be allowed. Under the new code, it's all just retail. (Unless you're selling food & drink, cars, guns or porn). That's a substantive change in use permissions whether OP realizes it or not.

Long story short, OP can't be trusted to identify what is changing and what is not. And there's no way that the Zoning Commission can make an informed and rational decision about the new zoning code if it proceeds from the assumption that it basically has to swallow the ZRR whole or spit it out.

So the challenge is to figure out how to move forward in a way that promotes intelligent decisionmaking. Here's my suggestion:

The Zoning Commission should proceed (as it did with the Green Area Ratio and a few other provisions that were originally part of the ZRR) by making policy changes to the old code on an amendment-by-amendment basis. In other words, make the decisions about where/whether/how to authorize corner stores or accessory apartments, or to change parking requirements or to expand and upzone downtown. Do it in a way that produces clarity about what is being changed, that treats each change as a separate question, and that creates a context in which we can have a relatively thorough and substantive debate about what changes should be made and how.

Once the substance of the code is settled, then the code can be streamlined and rendered more user-friendly (by people who actually have experience doing that kind of work and who know how to do it well). Since OP has already proven that it's not up to the task, this is a project that should be outsourced. Consultants should report to the Office of Zoning (the Zoning Commission's administrative staff who, I'd note, received kudos from developers' lawyers and neighborhood activists alike at the same oversight hearing earlier this month where OP's work was savaged) and their instructions should be to make the code (in both its print and online forms) more user-friendly -- without changing its content. In any situation where the consultants feel that a drafting choice has substantive implications, the issue should be referred to the ZC for guidance. 

The stakes are really high here.  We're talking about the rules that will govern land use citywide for decades.  We need to get it right -- not just to get it over with.  And getting it right can be done in a way that doesn't hold policy changes hostage to a massive redrafting effort, but that will leave the city with a new code that actually represents a substantial improvement over the old one.

How the ZRR would affect public input regarding development decisions

Under DC’s current zoning code, most development decisions fall into one of three categories – those that are matter of right, those that require special exceptions, and those that require variances.

Matter-of-right decisions are made unilaterally by the property owner.  As long as the owner’s project falls within the legally-established parameters of the zone – the building fits within the zoning envelope, its location on the lot is consistent with yard and setback requirements, the use is expressly authorized – then no public input or notice is involved.

Other decisions require permission.  In each zone, the code lays out some restrictions that may be waived by special exception and provides standards (which can be generic or specific) that must be met to justify such a waiver.  It also provides a Board of Zoning Adjustment (BZA) process for evaluating whether (and/or how) the project meets those standards.  This process gives neighbors advance notice of the project, involves a public hearing in which they can testify, and is one in which ANC input, as expressed through an official resolution, must be accorded “great weight.”* Typically, what happens in a special exception case is that the BZA listens to all parties and helps to craft a set of project-specific conditions that will enable it to grant the owner’s request without sacrificing the interests of neighboring property-owners.  It’s important to remember (and the ZRR rhetoric sometimes obscures the fact that) the special exception process is designed to facilitate -- not prohibit -- zoning relief.  Special exceptions are almost always approved.  (Which doesn’t mean that the process is pointless.  At a minimum, the special exception process gives property owners a powerful incentive to talk through their plans with their immediate neighbors, hear their concerns, and try to reach mutually-agreeable solutions.)

While the norm in special exception cases is that permission will be granted (subject to conditions), the norm in variance cases is that permission will be denied.  That’s because variances allow a type of development the zone is attempting to prohibit -- which is why the standard for granting a variance is so high.   A variance may be granted only when some peculiar attribute of the property creates a situation in which compliance with the zoning requirement would create an exceptional and undue hardship for the owner and when waiver of the requirement would not be detrimental to others or inconsistent with the intent and purpose of the Zoning Regulations.  Because variances are granted based on unique circumstances, they aren't meant to serve as precedents for other sites or projects.

There are also a few planning processes/tools that foster public input – most notably, PUDs, campus plans, and overlays.   In theory, the planned unit development (PUD) process was designed for larger development projects.  PUDs typically involve the simultaneous waiver of multiple zoning restrictions and often include project-specific upzoning requests (“map amendments”).  The PUD process also requires notice and public hearings, but the decisionmaker in PUDs is the Zoning Commission (ZC) rather than the BZA.  Once again, this is a process in which ANC resolutions are given great weight

  

Overlays, which involve localized modifications of generic zoning to achieve specific neighborhood objectives (e.g. to protect trees and slopes, or to prevent the conversion of residential property to other uses, or to create a neighborhood-serving retail district), have been eliminated in the ZRR.  The provisions of existing overlays have been (somewhat ineptly) incorporated into the new code as distinctive zones, but it appears as if the opportunity to create new overlays has been eliminated.  Since overlays are one of the most powerful ways neighborhoods have found to solve local problems and to preserve the characteristics they value, their elimination would represent a major loss of public input into the planning process.   Under the current code, overlays have generally been initiated by neighborhoods and adopted by the Zoning Commission as text amendments to the zoning regulations.

 

To give you a sense of how the ZRR would affect the range of decisions in which ANCs, neighborhood associations, and local residents have the opportunity to provide input, I’ve made a chart that looks at various development requests that currently trigger a public process and contrasted how those decisions are made now with how they would be made if the ZRR were adopted.

DEVELOPMENT REQUEST	CURRENT PROCESS	ZRR PROPOSAL
Residential development of substandard-size lot	variance	matter of right
Conversion of a single-family home into an apartment house in an R-5-A zone	special exception	matter of right
Rental apartment located within a home	special exception	matter of right
Rental apartment located in a garage or other outbuilding	variance	matter of right for pre-existing building; or special exception for new or enlarged building
Two-story garage or other outbuilding	variance	matter of right
Home occupation located in a garage	variance	matter of right
Home occupation and rental apartment on the same residential lot	special exception	matter of right
Habitable penthouse atop a single family home	variance	matter of right if no more than 10 feet tall no more than 1/3 of the roof's footprint set back from the street/alley by a distance equal to its height and from non-abutting side walls by a distance equal to 1/2 its height
Retail or service business on a residential lot	grandfathered non-conforming use or variance	matter of right if  home occupation or food store on a corner lot in a rowhouse zone replacing an existing store special exception for retail, general service, arts creation, or eating & drinking establishment use on a corner lot or in an historically non-residential building in a rowhouse zone
Use not authorized in the relevant zone	variance	approval of the Zoning Administrator**
Reduction of on-site parking requirements near transit	25% reduction = matter of right if building is non-residential, located within 800 feet of a Metrorail station entrance, and not within 800 feet of a residential zone > 25% reduction = special exception (for a non-residential building), variance (residential building), or PUD process	50% reduction = matter of right for any type of building to be constructed in an apartment or mixed use zone on a site that is within 1320 feet of a major bus route or 2640 feet of a Metro rail station.    > 50% reduction = special exception
Elimination of on-site parking requirements	variance or PUD process	matter of right if       downtown (any use) or   single-family home without alley access or   multifamily building with fewer than 6 units
Elimination of restrictions on FAR in C-3-C zones newly-defined as part of downtown	PUD process	matter of right, if development is residential or by purchasing density credits from a developer-controlled market

  [[N.B.:  This chart is a work in progress.  It isn't an exhaustive list -- just changes I've run across thus far.  And because I've never been an ANC Commissioner, I'm not familiar with the range of development cases they routinely encounter (although clearly it varies from Commission to Commission).  If you find any errors, want to suggest any additions, or wonder whether the rules regarding a type of development decision I haven't discussed are being changed, please feel free to email me -- smithhemb@aol.com -- and let me know.  I'll be continually updating the chart, so check back here for the most up-to-date version before citing, circulating, or relying on the chart.]]

One final point.  The ZRR proposes a new category – “conditional matter-of-right.”  On one level, matter-of-right is always conditional – e.g. you can build whatever structure you want as long as it fits within the parameters of the zoning.   So it doesn’t really seem like a distinct category – and it certainly isn’t one that involves any public process.   It’s still matter-of-right.

On another level, it’s worth pointing out that the “conditions” associated with this new variation of matter-of-right are not analogous to the conditions imposed through a special exception.   Here are three crucial differences:

(1) In a special exception proceeding, neighbors are notified, plans are made public, and conditions are discussed and negotiated prior to the requested project being built. Objections can be made (and solutions or compromises hammered out) before development begins. With conditional matter-of-right, the property owner builds the project without neighborhood input. The neighbors are presented with a fait accompli and the logical/likely response to their objections will be “so sue me.”

(2) In the conditional matter-of-right scenario, nothing is really contingent upon the conditions being met. By contrast, in a special exception proceeding, permission to build and/or operate a facility is conditioned on compliance. Failure to seek a special exception or to comply with the terms on which one has been granted can lead to denials of building permits, refusals or revocations of certificates of occupancy, or even the dismantling of structures that are out of compliance.

(3) The BZA, which is a deliberative tribunal, grants special exceptions. There's a transparent public process that leaves a clear paper trail -- BZA (and ZC) orders spelling out conditions can be easily accessed online and are searchable by location (square and lot number).  By contrast, to the extent that there’s any enforcement of matter-of-right conditions, that job would be left to DCRA -- a notoriously unreliable administrative agency whose decisionmaking tends to be opaque.  If you're dealing with DCRA, answers to questions like who made a decision, why, and based on what information are probably only available through FOIA requests or litigation.  (And, for what it's worth, when I testified at DCRA's budget hearing last year, neither the agency nor the Council's Committee Chair seemed to have any sense that changes in the zoning regulations could lead to a major increase in DCRA's workload.)

To me, the bottom line here is that, at a point where we're moving toward increased density, intensity, and diversity of land use, we're also losing opportunities for meaningful public input on development decisions that will significantly affect the character of our neighborhoods and our city.

---

*The BZA need not follow the ANC’s recommendations, but it must respond, in writing, to any relevant concerns raised by an ANC resolution.  In other words, great weight doesn't involve deference to neighborhood opinion; its function is simply to ensure that agencies listen to -- and actively consider -- the officially-expressed preferences and interests of the communities that will be most directly affected by their decisions.

** The Zoning Administrator (ZA) is a DCRA employee.  The ZA's job is to verify compliance before signing off on permits.  No hearing (or notice) is required prior to the decision of the ZA and the only paper trail is the permit itself.