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

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.  

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

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

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

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

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

Affordability

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

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

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

 Enforcement Issues: Tax and Safety

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

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

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

Managing Growth

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

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

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

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

Infrastructure

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

                       

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

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

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

Experience Elsewhere

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

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

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

Thinking Ahead

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

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

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

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

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

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

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