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 

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[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.

Penthouse Follies

Message to the ZC:  Slow the belt down -- Do the job right!

As I mentioned last August, under interim director Ellen McCarthy's leadership, the goal of the Office of Planning seems to be to push through as many controversial changes as possible before we have a new Mayor in office.  At this point, the Zoning Commissioners, unable to process all the paper being thrown at them at once and actively discouraged from thinking through the implications of various proposals, seem poised to rubber stamp almost anything put in front of them.  

Toward that end, last Thursday the Commission considered a major change to DC’s zoning code.  OP’s penthouse amendments would add an additional 20 feet of height to buildings citywide.  In buildings where such a penthouse would exceed the Height Act limit, those 20 feet would be limited to a single story; two additional stories would be authorized everywhere else.  Any use allowed in the zone would be allowed in penthouses as matter of right.  And penthouse space would not be counted toward the height or area (aka FAR) limits of the zone.  The only constraints on the square footage of a penthouse would be those imposed by setback requirements.

Under OP’s current proposal, only R1 through R4 zones would be excluded from this upzoning. That said, institutions located in such zones have apparently already retained counsel who submitted testimony requesting that schools, churches, museums, and other institutions with buildings located in low-density residential zones be allowed to develop penthouses subject to the same rules that apply in other zones.  And, of course, there are many areas in the city where low-density residential neighborhoods abut commercial, apartment, or mixed-use zones. 

Long story short, OP's proposals represent significant upzoning citywide.  These new rules would affect existing buildings, new construction, and projects currently in the pipeline.  In fact, OP has proposed that previously approved PUDs (e.g. Hine School, West End Library, the Wharf, Babe's, maybe even McMillan) could add such penthouses as a minor modification -- which would require no public hearing.  

The development community and their hirelings submitted lots of written testimony, clearly coordinated -- both formally and rhetorically.  The Developers' Roundtable* and the DC Building Industry Association sent letters -- in fact the DCBIA made two submissions, one with the findings of a study they commissioned. Trammell Crow, Eden, PN Hoffman, Hilton, Carr Hospitality, Carr Properties and Property Group Partners wrote separate letters as well.  Paul Tummonds of Goulston & Storrs weighed in, as did consultant Lindsley Williams -- though neither identified which specific clients, if any, they were representing in this proceeding.

By contrast, not a single ANC Commission or Commissioner wrote or testified in this case.  Why?  Two likely explanations -- the first is that ANC Commissioners were in the final throes of their election campaigns during the period between the October 17th notice and the November 6th hearing.  The other is that the 25 page public hearing notice announcing these changes was virtually impenetrable and no attempt (beyond the boilerplate header stating that “This case is of interest to all ANCs”) was made to alert Commissioners as to what is at stake in this proposed rule-making. The claim that these penthouse amendments are being offered in response to changes in the Height Act would naturally lead most people to believe that the new rules would only apply to buildings previously constrained by that statute.  

Thanks to the combined efforts of Alma Gates, Chris Otten, Rob Robinson, Marilyn Simon, and Dana Sleeper, the Zoning Commission ultimately agreed to keep the record open for another two weeks.  This means that ANC Commissioners and other civically-engaged people have until November 24th at 3 pm to submit written testimony on these amendments to the Commission.  The case number is 14-13 and filings cannot be made using the IZIS system.  Directions for submissions are available here.  You may email your testimony (submitted in the form of a signed pdf attachment) to zcsubmissions@dc.gov.  Fax (202-727-6072) and hand delivery (second floor of One Judiciary Square) are the other same-day options.  If you use regular mail, testimony must be received by the deadline.

Over the next few days, I'll write more about the substance of this issue. My goal today was primarily to describe the proposal and to point out the very limited window of opportunity remaining for comment.

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*This letter was signed by representatives of Abdo, Property Group Partners, JBG, Gould, Douglas Development (Jemal), Jair Lynch, Western (Herb Miller), Vornado/Charles E. Smith, DRI, Wilkes, Hines, Carr, Quadrangle, Republic Properties, Boston Properties, Brookfield Properties, Forest City, William C. Smith, and Akridge. Almost all of these companies (and many more) are also listed on DCBIA's letterhead.  

While Nobody was Paying Attention...

Last week, the Office of Planning, headed by an interim Director appointed by the lame duck Mayor immediately after his primary defeat, asked the Zoning Commission to raise matter-of-right heights by 20 feet in every apartment, commercial, and mixed-use zone throughout the District.  For most buildings, this change would allow an additional two stories of office, condo, or restaurant space (or any other use permissible within the zone).  In buildings that max out Height Act limits, federal law, these 20 feet penthouse structures would be limited to a single story.

It’s a move of jaw-dropping audacity, and a brilliant affirmation of Phil Blair’s claim that DC doesn’t really have an Office of Planning – we have an Office of Plotting. And, apparently, the Office of Plotting is located somewhere within the Ministry of Magic.  OP has fashioned a giant Cloak of Invisibility that will enable developers to add an additional 20 feet of height without exceeding existing zoning limits. We'll retain all our current zoning parameters -- we just won't count anything that happens on the top two floors toward those limits.  Those stories are above the "roof" so it's as if they don't really exist.  But such space would be essentially indistinguishable (in use and in level of finish) from anything that goes on below the "roof" -- except that it'll command higher prices.  Neat trick!

In Case #14-13, filed on July 24^th and discussed at the Zoning Commission’s July 28^th meeting, OP has proposed significant upzoning by making 20 foot habitable penthouses matter-of-right citywide.  Such penthouses would be allowed in all zones other than R-1 through R-4[1] and would not count toward either the height or FAR[2] limits that characterize the zone.  Area limits based on roof size would also be eliminated.  Front and, in some cases, side setbacks would be the only constraint on the amount of space that could be built in such penthouses.  Any use allowed as a matter of right within the zone would also be allowed on the roof.  

There’s no planning behind this proposal.  These amendments have been offered on the pretext that they are needed to make DC local zoning regulations consistent with federal law. This is ridiculous.

First, DC’s regulations are already consistent with federal law – federal law sets a maximum and as long as DC doesn’t authorize more than the feds allow, DC’s law is consistent with federal law.   The fact that OP’s proposal is least ambitious where the Height Act actually does apply makes it clear that this isn’t legislation that the Height Act somehow requires -- it's overreach.  Even prior to this year’s changes in the Height Act, DC had the power to raise heights in most zones by 20 feet (and to impose setbacks at that height).  But OP hasn’t made such a proposal because (a) there’s no compelling justification for such wholesale upzoning and (b) it would be wildly unpopular.  No Mayor with any desire for (or hope of) re-election would take such a risk; it would be political suicide.

Secondly, throughout the extended discussion over raising Height Act limits, OP repeatedly made the claim that this was an important “home rule” issue – we should get to decide what heights are appropriate where – it shouldn’t be left to the feds.  But the moment the feds allow greater heights, OP contends that it’s urgent that we raise ours to match.  What happened to making our own decisions?  And let’s not forget that a near-unanimous Council opposed altering the Height Act and that subsequent opinion polling indicated that their stance reflected that of DC residents and voters who overwhelmingly preferred retaining existing limits.

Finally, the fact that OP’s proposal is citywide, categorical, and matter-of-right (all zones everywhere, except low-density residential) demonstrates the absence of any real planning.   No attention has been paid to context, to demand, to infrastructural capacity.[3]   

There’s an unseemly haste about all of this.  OP asked for a setdown[4] hearing on these text amendments, without having even WRITTEN the actual text.  It then submitted its setdown report 4 days (rather than the required 10) before the (Monday) hearing.  That hearing was the Commission's penultimate session before its summer recess, with an already-lengthy agenda including the McMillan and Barry Farm PUDs (both complicated and highly-contested).  By the time the Commission got to the penthouse amendments, they’d been meeting for four hours and it was about 10:30 pm.

To the Commission’s credit, rather than grant setdown, they deferred decision until September 4^th, at which point they expect to see actual text amendments rather a description of what such amendments might say.  Nothing the Commissioners said indicated that they realized how far-reaching OP’s proposal actually is. But, presumably, that was the point of such a premature submission – in the blur of everything else going on, and with OP talking about developers’ urgent need for certainty[5] about what the rules are, it seems as if the current Administration’s goal is to ramrod this through before anyone realizes what’s going on.

In general, what last month’s hearings have dramatized is that the Zoning Commission is overwhelmed and that it is being asked by the Office of Planning to make the kinds of decisions – major policy choices – that it was never intended (or structured) to make.   We’re talking about a five member unelected Board, whose appointees are not required to have any expertise in planning or zoning and the majority of whose members have what appear to be pretty demanding day jobs.  The Commission’s administrative office is very competent and professional, but they don’t have staff whose function is to analyze, summarize, and/or vet proposals.  So each Commissioner is on his or her own. 

But that's a topic for another day...

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[1] Low density residential zones where only detached, semi-detached, and rowhouse construction is allowed.  In these zones, the current draft of the proposed new zoning code would allow 10 foot tall penthouses (with setbacks), limited to 1/3 of the area of the roof below.  

[2] FAR = floor area ratio which is the relationship between building size and lot size, both measured in square feet.  A building with a FAR of 5 has five times as much square footage as the lot it’s built on. 

[3]Joel Lawson’s presentation at the ZC hearing amended/supplemented the written report by stating that these changes weren’t intended to affect areas where there are pre-existing overlays that specifically limit penthouse dimensions.

[4] Set down is a decision by the Zoning Commission that a proposal is ready for consideration and public debate.  After the ZC agrees to set down a case, a public hearing is scheduled and advertised.

[5]For what it’s worth, there’s very little uncertainty right now – it’s clear that a building whose roofline reaches the Height Act limit may have an enclosed, single-story, inhabitable penthouse on top and that it must have a 1:1 setback.  What’s uncertain is whether the height of that penthouse can be 18.5 feet (DC regs incorporating old fed law) or 20 feet (amended fed law).  Everything else is about developers asking for more – not about not knowing what they’re entitled to.  Commissioner May pointed this out toward the end of the hearing.

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.