Miscellany

Worth reading:

On ADUs:

The Northwest Current has a piece by Brady Holt regarding accessory dwelling units (page RE14). Quotes one local developer as saying it costs $200K to $400K to build a basement unit and a realtor as estimating that a legal basement unit adds $200K to the appraised value of a home.

On Parking:

Emily Badger's "Why the Poor Need Better Access to Cars" (on Wonkblog) and/or Driving to Opportunity, the Urban Institute study it summarizes.

"The Cost of a Parking Spot" from Urban Turf looks at current asking prices for both sales and monthly rentals of parking spaces in a variety of DC neighborhoods. The article says that sale prices appear to have increased about $5,000 to $10,000 since their last survey in 2011.

Updates to the chart on public input:

I've added two entries -- (1) Substandard lots (those that fail to meet the minimum SF or width requirements for the zone) now require a variance.  If the ZRR were adopted, development of such lots would be matter of right. (2) Prohibited uses, which also require a variance under the current code, would require approval of the Zoning Administrator (ZA) under the ZRR.  Note that the ZA does not provide notice or hold hearings prior to approving requests made by the property-owner. While any property owner, developer, real estate lawyer, or architect may request a determination letter from the ZA, typically the ZA does not offer any justification for a decision that a project complies with zoning requirements.  As a result, it's virtually impossible to evaluate consistency across cases.

Here's an example (from Subtitle D, page D-74) of one of the regs that effects change #2:

1611 USES NOT IDENTIFIED IN R ZONES
1611.1  Any use or Use Group not included in tables or otherwise permitted by conditions, special exception or as an accessory or home occupation of this chapter shall be deemed not permitted unless determined by the Zoning Administration to be compatible with like permitted uses and consistent with the general use impacts of permitted uses.

Translation: Anything not mentioned is prohibited -- unless the ZA allows it.

What are the odds that, in 980 pages of text, such a passage would leap out at a casual reader?  What are the odds that all five of the Zoning Commissioners noticed it and know what it means?

And change #1 (matter-of-right development of substandard lots) is even more elusive.

These are the kind of significant changes that are flying under the radar in the Zoning Regulations Review process.

Learning from Philadelphia

In a previous post, I suggested that the job of streamlining DC's zoning code could (and should) be outsourced.  And that making the code more user-friendly doesn't necessarily require changing the rules.  It's something that could be achieved, in many cases, simply by changing the format or by creating better finding aids.  (There's some really low-hanging fruit here.  For example, the existing code would be significantly easier to use if it were available online as a single, searchable PDF.)  

User-friendliness has played an interesting role in debates over the ZRR. On the one hand, it's used to justify (and/or mask) many changes to the code that are, in fact, quite substantive.  Judging from their rhetoric, the powers-that-be (including all the Mayoral candidates who ran in the Democratic primary) take this objective so seriously that they are willing to sacrifice the existing code on its altar.  On the other hand, despite all of the lip service paid to user-friendliness, no one actually seems to be holding the text presented to the Zoning Commission up to that standard.  They just assume it has been met.  But it hasn't.

Setting aside the very real possibility that some folks are being disingenuous and others just aren't doing their homework, I think two things are going on here that explain the gap (more like a chasm, really) between the rhetoric and the reality.  The most obvious one is that people expect zoning regulations to be painful to read.  So the fact that these supposedly new-and-improved regs are so convoluted isn't held against them -- especially by people who have little or no basis for comparison.  ("Wow, if this new code is user-friendly, imagine how bad the old code must be.  That's why it's so crucial that we replace it.")

But the other problem is that user-friendliness (or lack thereof) is best judged by actually trying to use the code rather than by simply reading it.  As luck(!) would have it, I've accumulated a fair amount of experience using the proposed code -- both this draft and the previous one -- because people from a variety of different neighborhoods have asked me specific questions about whether and how the new regulations would affect development in their communities.  This gives me a different perspective on the text than that of people (including the Zoning Commissioners?) who are evaluating the draft code after reading it straight through, as you would a book.  

This reading-the-text-from-cover-to-cover approach begs some very practical questions that would confront a typical user and obscures many of the problems such a user would encounter.  Among the questions begged -- where do I start and how do I know when I'm done?  (A 980 page text isn't user-friendly if you have to read the whole thing to be sure you've found the right answer to your question.)  Among the problems obscured -- contradictory information in widely scattered sections that apply to the same zone, lack of cross-references, prohibitions that are not explicit but must be deduced from what is not mentioned, ambiguities that arise from categories that are broad and/or not mutually exclusive. 

As I worked with the proposed new code and  began to discover just how problematic it was, I started analyzing what was going wrong and why.  Since some of the answers seemed pretty obvious to me, I wondered whether planners in other jurisdictions did things "my" way or whether they had taken the same approach to these issues that OP has.  

So I looked at Philadelphia, whose 50 year-old code has recently been replaced with an updated version that has been described in similar terms to what we're being told about the ZRR (It's streamlined and more user-friendly.  There are more visuals and more charts).  Lo and behold, Philly did it right.*  And what they produced looks nothing like what OP has produced.  To start with, their new code is a couple hundred pages shorter than their old code was, while the ZRR is couple hundred pages longer than our existing code.  (I counted an extra 299 pages.  OP claims it's "only" an additional 200 pages -- and has started to embrace redundancy as a selling point for the new code.)

Because this post is already getting long, I'll give just two examples of how we can learn from Philadelphia.  The first involves zone definitions and demonstrates how easily the provisions of DC's old code could be represented in a much more user-friendly way. (It also explains why, if the changes proposed by the ZRR were made, DC's new code could NOT be summarized in such an easily accessible manner.)  My second example focuses on use tables and compares one from the ZRR with one from Philly's new code. It suggests how incompetent OP's draftsmanship has been, as well as how far short of the mark the current text is if our goal is to create a user-friendly zoning code.

[I'm new to blogging, so I'm not sure how legible the images in this post will be and how that will vary depending on what platform you use to access the blog.  If you can't see what you need to see, you can find a pdf of the relevant images here.  There are also embedded links for three of the four images discussed below but they don't lead you directly to the specific page being discussed -- just to the document it came from.]

Example 1:  

Here's what a summary of a residential zone looks like in DC's current zoning materials:

Summary of Zone Districts

Updated April 1, 2013

Districts		Summary
R-1-A		Permits matter-of-right development of single-family residential uses for detached dwellings with a minimum lot width of 75 feet for residential, churches, and public recreation and community centers and 120 feet for schools, a minimum lot area of 7,500 square feet for residential, churches, and public recreation and community centers and 15,000 square feet for schools, a maximum lot occupancy of 40% for residential, 60% for church and public school use, and 20% for public recreation and community centers and a maximum height of three (3) stories/forty (40) feet (60 feet for churches and schools and 45 feet for public recreation and community centers). Rear yard requirements are twenty-five (25) feet, side yard requirements are eight (8) feet.

And here's how a similar zone is depicted in Philadelphia's new zoning materials:

I think it's fair to say that Philadelphia's approach represents a significant improvement over DC's.  The information is well-organized and clearly presented.  There's a lot of content, but the layout is uncluttered and it's easy to find what you're looking for.  So I understand why, when our Office of Planning says that they're adding graphics and tables to make the zoning code more user-friendly, people think that's a good thing.  Replacing a wall of text with charts, drawings, and photos is a better way to explain what kinds of development is allowed in a particular zone.  

But over the course of the ZRR, OP has not produced a document similar to Philadelphia's.  In fact, it has created a proposed new code that (unlike our current code) would be virtually impossible to summarize in such a manner.

If you page through Philadelphia's document, you'll see that their new code has 35 zones.  If you look at the chart on the first five pages of the ZRR (and do a bit of simple addition), you'll discover that DC's proposed new code would have 142 zones.  It's hard to create a "Quick Reference Guide" when you have that many zones. And if you tried to make one for the ZRR, following the same format that Philadelphia used, it would look really bizarre for a couple of reasons.  

The first is that numerical order in DC's new code (unlike Philly's new code -- or DC's current code, for that matter) doesn't really correspond to increases in scale, density, intensity, or variety of uses.  So while in Philadelphia's code you see a progression (or, more accurately, a series of progressions), a ZRR version of the same type of document would show you a jumble.  Either the zones would not be listed in numerical order (in which case it would be hard to find the one you were looking for) or the zones would be listed numerically, and the first four sets of images you'd see would go from single-family detached, large lot to single family detached, smaller lot, to semi-detached, to rowhouse in a progression that seems to make sense, but then suddenly, you'd be back to single-family detached, and the lot sizes would go up and down. Pages later, you'd see rowhouses again, and, after that, some single family detached homes might reappear (depending on how the A-1 (currently R-5-A) zone is represented).  

The second reason is that anyone who set out to produce such a Guide would have a difficult choice to make regarding the photographs used to typify each zone.  Either many of the zones would look indistinguishable from one another (because they allow the same type of housing stock) or, if an attempt were made to vary the images used as examples, the Guide might lead readers to focus on visual attributes that are actually irrelevant to the zone definition.

In sum, our existing code could easily be made more user-friendly without changing its content.  Yet instead of moving us toward greater user-friendliness, the ZRR, by eliminating overlays and proliferating zones, would actually represent a major step backward.

Example 2:

My second example compares Philadelphia's new code with DC's proposed new code, by looking at the difference between the end products that resulted when each city's drafters decided to create use tables.  A use table is designed to show which uses (e.g. residential, retail, commercial, light industrial) are allowed in particular zones. 
Here's a use table from Subtitle F of the ZRR (you can find it on page 38), which governs Apartment (or "A") Zones:

As you've probably noticed, every cell in this table contains the same content -- an "S."  Do you know what "S" stands for?  If you answered "Special Exception," it's probably because you noticed that phrase in the table's title (or because you're an ANC Commissioner!). You won't find the answer in the table's legend, however -- because the table has no legend.  

Seriously, if every cell in a table is going to be filled with the same information (which is already presented in the table's title), then you might as well just make a list. There's zero content added by creating 60 boxes filled with "S"s.  It's as if someone created a table for the sake of creating a table (or because they were told tables were "user-friendly").  To make matters worse, there actually is content that could obviously and usefully be included in those cells -- that is citations to the regs that lay out use-specific standards for granting a special exception.  These regs typically follow the table, but the table doesn't tell you that.  And a user may not find it easy to locate the relevant reg without a cross-reference because

• there aren't always use-specific standards; sometimes only the generic special exception standards must be met;

• some use-specific standards appear to have been inadvertently omitted; 

• those use-specific standards that are included aren't always put in the same order or labeled in the same way as the use was listed in the table.  And, in any event, the labels aren't highlighted in the text. So you have to keep wading through all the use-specific standards following the table until you find the one you’re looking for or conclude that one does not exist.

It's also important to realize that this isn't the only use table governing the Apartment zones -- there's also one on page F-32 (By Right Uses) and another on page F-36 (Accessory Uses).  Of the 35 use groups (which I happen to know exist because I read about them in a different Subtitle), 3 are listed in all three tables, 6 are listed in two of these tables, 16 are listed in only one table, and 10 aren't mentioned in any of the tables. You're supposed to deduce from their omission that these last 10 use categories are prohibited in A zones.  And, presumably, even after you've found the use you're looking for in one table, you are expected to keep looking for it in the others as well -- since it might recur.  Not that the use table itself tells you any of this.  

At a more trivial level, note that while the chart governs "A" zones, none of those zones are identified by their new "A" names.  Here's my best- case scenario for what the top of the chart would look like if they were: 

Uses	A-1 A-6	A-2 A-7, A-8, A-9	A-3	A-4, A-5, A-10, A-11
Arts, Design, Creation	S	S	S	S

Now here's (part of) a use table from Philadelphia's new code:


It actually is user-friendly and here are some reasons why:

First, the coding is intuitive (Y=Yes; N=No) and, even if it weren't, there's a legend at the top of the chart.  By contrast, the use tables in the ZRR don't include legends and their coding is arguably counter-intuitive.  When you see A and P in a use table, for example, you might think A=allowed and P=prohibited.  But,  in fact, A=accessory and P=permitted.  (Of course "permitted" itself is ambiguous in this context -- could mean requires a permit, rather than is a matter-of-right use. And an "A" use can, itself, be "P.") 

Secondly, an important attribute of the Philadelphia use chart is that it is easy to use regardless of whether you start with a location/zone and want to determine acceptable uses or whether you start with a use and want to know where it can be located.  Both kinds of questions are the sorts that would predictably send people to a zoning code.  So, for example, you might already live in an RSD-2 zone and wonder whether you (or your next door neighbor) can open a home daycare.  Conversely, you might be planning on opening a home daycare and want to know, as you house-hunt, what kind of zoning you should be looking for.  This chart makes it easy to answer either question and to compare the answers across zones (or across uses). 

The table also handles the relationship between new and old zones well.  Old zones are listed in the first row (which presumably will disappear after a transitional period between codes) and new zones are below. So there's a convenient bridge between codes.  More substantively, it helps that the new zones share the organizational logic of the old zones (the higher the number, the greater the density) but, at the same time, that the new names are all actually new.  In the ZRR, by contrast, "R-2" is the new "R-1-B" while "R-3" is the new "R-2."  That will be a source of endless confusion as people look up prior decisions.  

Philadelphia is doing a similar kind of renumbering but by having RSD-2 (rather than R2) replace R1A, their drafters avoid such confusion.  And the move from R to RSD adds a bit of useful information -- the R still signifies residential zones, but adding the SD tells users that the zone is characterized by single-family detached housing -- whereas RSA denotes a zone where the norm is single-family attached housing, as opposed to RM zones, which allow multifamily housing.  Creating labels that actually tell you something about the zone is helpful.  

Also, note the cross-references in rightmost column of the chart.  If a use requires a special exception and there are specific standards for granting it, the table refers you to the regulation number where those standards can be found.

Finally, it's useful that all the residential zones are covered in a single (two-page) table.  (The ZRR has more than a dozen such tables, spread out over multiple Subtitles).  The visual division of uses, marked by major categories in bold/gray with subcategories beneath makes the organization of the chart immediately apparent and very functional (vs. the not-quite-consistent alphabetization used in the ZRR tables).  And it saves users an amazing amount of effort when tables just say no (or "N") regarding prohibited uses, rather than force the reader to plow through multiple tables (and a chapter on uses) to deduce which uses have been omitted from the zone standards. 

I'm not saying that there's no room for improvement in Philadelphia's new code.  I don't understand, for example, why the contents of the footnotes aren't included in the same PDF as the table itself.  And I hate American Legal's interface for the online code -- because, for example, it uses frames and won't provide a URL that links directly to the PDF of the residential use table.  But the Philadelphia code does show you the difference that competent draftsmanship makes.

The ZRR is not competently drafted.  It's emphatically not "good enough for government work."  In fact, I'm shocked that any major city would consider adopting regulations that are this poorly written.  And the text is only getting worse as OP struggles to add patches and carve out exceptions.  Clearly, this is an agency that lacks the in-house capacity to write user-friendly regs.  So rather than put the same text back in the blender for yet another whirl, it's time to separate the task of amending the code from the task of streamlining the code.  Let OP submit its substantive changes to the ZC as text amendments and, when that process is complete, outsource the task of making the code more streamlined and user-friendly to people who actually know how to do that kind of work.
__________
*N.B. I'm speaking about user-friendliness here rather than the content of Philadelphia's new code.  I can't vouch for the latter.

 

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.