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).  

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.

Meet the New Code: Even Worse Than the Old Code

The dialogue that surrounds the ZRR (aka zoning regulations review) has been surprisingly nasty and polarizing.   Lost in the name-calling and the focus on a few issues (parking, accessory apartments, and corner stores) is the fact that the Zoning Commission is being asked to replace our existing zoning code with a new 980 page document that virtually no one has read and even fewer people have actually tried to use. 

The Office of Planning (OP) was charged with streamlining, simplifying, and updating the code and making it more user-friendly.   Has OP succeeded? 

The proposed new code is almost 300 pages *longer* than the existing code.  (By contrast, when Philadelphia planners were given the same task, the new code they proposed was 200 pages shorter than the old.)

An overlay that consists of six consecutive and coherent pages in the current code has its provisions scattered over at least 37 different pages (and six different subtitles) in the proposed code.  And those pages now provide conflicting information about what can be done within the affected area.

Under the current code, we have 35 zones and 26 neighborhood-specific overlays; under the proposed new code, we’d have 142 different zones.  The naming/numbering of zones in the existing code is logical and systematic.   In the new code, not so much. 

Typically, a recodification project of this nature – i.e. one that is cast primarily as a clean-up of an old and much-amended existing code that has grown convoluted and difficult to use – would attempt to codify/incorporate settled case law and administrative interpretations.  No such attempt has been made here.   The status of existing precedent under the new code gets even murkier because the proposed code retains much of the same vocabulary as the old code, but redefines a number of terms.  It would keep many existing zone definitions, but change the names associated with them.  Many passages in the new code have been cut and pasted from the old code but, in this process, their context has changed.   So are we going to start from scratch and treat every interpretive question that arises as a new one?  Instead of revising the code to make it easier to understand, OP has adopted an approach that will make the process of interpreting the zoning regulations even more opaque and unpredictable. 

    

There are a host of other issues – e.g. endless almost-but-not-quite-identical tables (that lack legends and whose coding is counter-intuitive), incomprehensible sentences, the absence of cross-references or overviews – that suggest the drafters of this code had little or no previous experience writing regulations and didn’t spend much, if any, time thinking about how a reader would use the text they were creating. 

We do ourselves and our city a real disservice if we treat the ZRR as just a referendum on whether corner stores are good or cars are bad.  This is high-stakes legislation – the zoning code controls the use and development of land throughout the District, and the last code DC adopted has stayed in place for over 50 years.  The fact that it took the Office of Planning seven years and countless meetings to produce this 980 page nightmare of a draft isn’t sufficient reason to adopt it.  The Zoning Commission needs to make its decision based on whether the new code represents a significant improvement over the old code.   By any of the criteria set forth at the beginning of this process, it does not.

Just to be clear, I’m not arguing against changing the existing code.  Throughout the ZRR process, the Office of Planning has continued to propose (and the Zoning Commission has continued to adopt) text amendments to the existing code.  These have included the Green Area Ratio (GAR), zoning for the development of Saint Elizabeth’s, and a variety of other, more minor, provisions.  There’s no reason that parking minimums, accessory apartments, and corner stores (or any other policy change OP wants to initiate) can’t be handled in the same way.

As for rendering the existing code easier to use, it would be a great leap forward if that code were available online as a single searchable pdf.  (And/or if the format was one pdf per chapter.)  The existing interface (which links to a separate pdf for each reg) is needlessly difficult to work with.  Eliminating that difficulty doesn't require changing the substance of the code -- just its formatting.