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.  

Orwellian or Merely Clintonesque? (A Real-Time Account of the UWACS)

This post describes events that happened 10 years ago and that I wrote about at the time.  I reprint it here because it's an example of how Ellen McCarthy, whom Mayor Gray just appointed to replace Harriet Tregoning, dealt with the public during her previous stint at OP.  It was originally published on the Tenleytown listserv (whose archives are available to subscribers only.).

Nov 7, 2003

Last week, about 200 neighbors attended a meeting on the Wisconsin Corridor study. At that meeting, we were repeatedly told that the Office of Planning was not asking for any zoning changes. And yet when their Strategic Plan map was revealed (on a powerpoint slide that lacked any identifying street names or lot numbers), those of us who are familiar with the existing zoning map knew that the heights being advocated on various segments of Wisconsin Avenue were inconsistent with the current zoning. For example, 10 story buildings were envisioned where the existing zoning allows no more than 6, the construction of commercial parking garages was being encouraged on parcels zoned for residential use only, dense development was slated for the land around Tenley Circle that is zoned for single-family detached dwellings, public schools, and churches. And one stretch of Wisconsin Avenue -- where the zoning legally entitles every property owner to build up to 5 stories without asking anyone’s permission -- was represented as a zone in which only 2-4 story buildings could be built.

But you wouldn’t know any of this if you hadn’t spent hours studying the zoning code and maps – something very few sane people would voluntarily do! And the Office of Planning clearly counted on that fact when it offered such a stunningly misleading characterization of its Plan. Arguably, there’s a half-truth embedded in their claim that their plan is not to initiate any zoning changes. They’ve chosen not to change the current zoning law but simply to circumvent it. And, procedurally, they plan to achieve this by encouraging developers to propose buildings that grossly exceed the various limits (not just height, but density, footprint, and appropriate use) imposed by the existing zoning, secure in the knowledge that the Office of Planning will back them up when they go before the Zoning Commission. Meanwhile, most of the current residents, reassured by public officials that the zoning is not being changed, will rest easy and discount opposition to particular projects as NIMBYism rather than as an insistence that the city enforce the legally-prescribed limits on property use that have been designed to protect the property rights of vast majority of the property-owners in Tenleytown and Friendship Heights from the rapaciousness of the very small number of non-resident landowners and developers who experience our neighborhood only as a potential source of private profit and who use their political connections to render themselves immune from the legal restrictions that govern the rest of us (including other/most commercial landlords and developers).

Last night, the Office of Planning treated (some of) us to yet another misrepresentation of what they are doing. Cindy Petkac, the new/temporary Ward 3 neighborhood planner, announced via email that the full draft of the Corridor Study/Strategic Plan will be made public next week (with a community meeting to be scheduled for December 8th), and that ANCs 3E and 3F would have the 90 days they requested for public comment on the draft Plan (a request that OP has resisted for weeks while pressure from the public and from Council Members mounted) before OP submits a final Plan to the City Council for their consideration. Petkac then added that “The Office of Planning will continue its approach not to set down any planned unit development (PUD) applications in the Corridor until the draft Plan is presented to the public.” In fact, the approach announced here is a marked departure from the Office of Planning’s position on when set downs would occur. Back in June, in testimony before the Zoning Commission, Ellen McCarthy, the deputy director of the Office of Planning, stated “We have applications from 4800 Wisconsin Avenue PUD, the Martens Volvo site and Wisconsin and Brandywine, the Babes Billiards site, but we have indicated to the Applicants before that we are waiting for the completion of the Wisconsin planning study before we go forward with the cases that propose zoning changes.”

Office of Planning’s original position – plan first, then implement – made perfect sense. Their new approach – announce what you know is a very controversial plan and begin implementing it before the ANCs and the City Council have a chance to comment upon it, change it, and/or reject it – is a betrayal of the public trust and of the democratic process as well as a high-handed power grab on the part of a non-representative bureaucracy that has a cozy relationships with the corporate interests it is supposed to be regulating. (In the Casey Mansion case, a FOIA’ed email of McCarthy's has her exhorting colleagues to keep the public (including an ANC commissioner who had made a direct inquiry) in the dark about OP’s plans until the underlying real estate deals had been made.)

The argument that developers have waited patiently and shouldn’t be kept waiting any longer because they have a right to put their property to use is a disingenuous one in this context. Yes, developers have a right to build on their property – they have a right to build what the existing zoning permits them to build (which, for the parcels in question, is usually a five-story building covering up to 60% of the lot and whose interior SF was no more than 2.5x the size of the lot). They aren’t being delayed from doing that – no Zoning Commission hearing or OP recommendation is required for matter-of-right development. And, as the McCarthy quote demonstrates, the OP had already indicated that it was only proposals requiring “zoning changes” (not PUDs -- planned unit developments -- generally) that would have to wait for the finalization of the Corridor Study. So if a developer wanted to ask for flexibility consistent with the existing zoning – in these cases, permission to build up to 2 stories higher and 20% denser that he is legally entitled to build – he wouldn’t have to wait. The only development proposals being held up have been those that envision development that goes even further than that beyond the existing restrictions. For example, in the Babe’s and Martens cases, both buildings are literally twice as large (measured in interior SF) as the owner is entitled to build under the current zoning  -- and in the Martens case, most of the building is 37.5 feet higher than matter-of-right. Honestly, I see no equity issue in telling property owners who want to do something so far beyond what they are legally entitled to do that they cannot do it unless or until the law is changed. Yet the Office of Planning says, essentially, why wait for the legislature to act when we’ve already drafted the bill? Wrong, wrong, wrong. Especially when the bill is essentially a repeal of an existing law.

I sincerely hope that anyone who is concerned about the future of our neighborhood will pay close attention to what the Office of Planning and the Zoning Commission are doing. I know from experience how difficult it is to educate yourself about these fairly arcane administrative and bureaucratic issues, but if you plan to stay here, the stakes almost couldn’t be higher. I'll do my best to share what I know and to refer you to places where you can verify it.

Sue Hemberger
Friendship Heights

Zoning, post-Tregoning

[Originally published in the February 16, 2014 edition of The Mail.  Since then, the Zoning Commission has added two public hearings and extended the deadline for submission of written comments to April 25th at 3 pm.]

It was heartening to hear last week that the Zoning Commission has extended the comment period on the proposed new zoning code until April 17th.  Since November, when public hearings on the draft code started in earnest, what we’ve seen is a series of concerns being raised by residents of neighborhoods across the city.   And I think what we’re learning is that it was a serious mistake to do a wholesale rewrite rather than to amend the existing code.   Burying a series of significant policy changes in a virtually unreadable 980 page text is recipe for poor decision-making.  We need issue-by-issue consideration (which, in some cases, will mean neighborhood-by-neighborhood analysis) of proposed changes in order to evaluate whether they take us closer to (or farther away from) where we as a city want to be. 

The major obstacle to this kind of deliberative approach has been the Zoning Commission’s reliance on the Office of Planning.  On the one hand, that’s a structural problem – e.g. the Office of Planning serves as the experts that vet the Office of Planning’s own work.  And if the Zoning Commission decides that it wants to see that work done better or differently, it has to rely on the Office of Planning to fix what’s broken.  But this structural problem has been aggravated by the dogmatism and, frankly, the belligerence of the Office of Planning under the leadership of Harriet Tregoning. 

Fortunately, that last obstacle is about to be removed.    Weeks after having lost the Height Act battle and a few days before Bill de Blasio would announce he’d chosen someone else to head NYC’s planning department, Tregoning fled to a job with the feds, rather than go down with the sinking ship that is the zoning rewrite effort.  It’s a wise -- probably essential -- career move on her part.  As long as she doesn’t have to get the new code passed or be held responsible for its implementation, Tregoning can claim kudos for her visionary leadership.  And when, quite predictably, her vision doesn’t translate into reality well, that’ll be someone else’s fault.    Shades of Gabe Klein, Scott Kubly and the streetcar system.  Or, for that matter, Michelle Rhee and DCPS.

   

At any rate, our challenge now is to take a fresh look both at our zoning code and at what we want from our next Director of Planning.   These are timely questions to raise during this Mayoral election season.

In essence, zoning is about how much of what belongs where.  The answer that Tregoning’s Office of Planning has proposed in this new code is “more of everything, everywhere.”  This approach represents an abdication of responsibility for planning the city’s growth, as well as the abandonment of zoning as a tool for balancing the interests of neighboring property owners and for taming or channeling market forces.   

Outreach on the proposed new code has focused on a few of the latest planning fads – accessory apartments, corner stores, and the reduction or elimination of on-site parking requirements. These issues are, essentially, sideshows -- distracting attention away from both the sizeable giveaways in the newly expanded downtown and the Office of Planning’s failure to address the most important challenges -- affordability, uneven development, retention of new residents, and a series of quality of life issues – we face as a city.

What we need is a citywide discussion about how and where we grow, conducted by a Planning Director who listens to, learns from, and respects the people who live here.  Someone who is a fundamentally a problem-solver, who will appreciate what’s special about our city and recognize what we want to preserve, but who is also willing and able to initiate the long-term efforts necessary to address our most enduring problems.  We’re not going to attract anyone with those qualities or ambitions if their first job will be the unenviable task of implementing a poorly-conceived and badly-drafted new zoning code.