Zoning Matters

Penthouses: The Conversation We Should be Having (and how you can help make it happen)

noreply@blogger.com (Sue Hemberger) — Sun, 23 Nov 2014 21:02:00 +0000

Sometimes the best way to figure out what's going wrong is to start by taking the enterprise seriously and at face value -- in this case, "Let's reconsider how we use the space on top of roofs" -- and then play out what candid and responsible people would do prior to making policy choices on the issue. By starting from scratch with a simple question -- if I wanted to make an intelligent decision, what would I need to know and to consider? -- you can strip away a lot of BS pretty quickly. And what you come out with is a path forward rather than simply a critique of where we are now.

Toward that end, here's my take on what the penthouse discussion should look like. Three basic questions frame the issues.

1. What do (and don’t) we want happening on rooftops (and where)?

The Wall Street Journal suggests that what's at stake here is trophy party space for out-of-town guests. The article establishes that this can be a very lucrative enterprise -- the Newseum charges $30,000 a night for rooftop rentals. But creating more such space is hardly the sort of emergency that justifies passing broad new regulations without any consideration (beyond revenue) of their implications. Nor do the proposed regulations limit uses -- restaurants, nightclubs, office space, luxury housing, or any other use allowed in a zone could be located on the penthouse level(s).

Are we truly indifferent as to what uses this space is put to? Does the answer depend on where the space is located? If we want to create a "living" downtown, how will rooftop party spaces and the noise, light, and privacy issues they create affect the residents of neighboring buildings? Are there safety and/or security issues affecting rooftop uses in some areas? In areas where our goal is to create more "vibrancy," what happens to street life if we move restaurants and clubs to the sky? Do we want rooftops to be shared (by building tenants), commercial (open to the public -- for a price), or private? What do we hope to accomplish by making this space more usable? At this point, "sold to the highest bidder" is the operant logic of the new regulations. To me, that's the opposite of planning.

2. What's happening on rooftops now? If we introduce new uses, what gets displaced -- and to where?

In essence, the Office of Planning is proposing to commodify rooftop space. This is a major change. Under current zoning regulations, the rooftop uses that are allowed in DC typically don't generate revenue -- at least not directly. Since the highest floors of a building typically command the highest rents and sales prices, adding one or two more inhabitable stories creates a strong incentive for every new building to maximize the built space above the roof. In lower-density zones, where two extra stories (even with setbacks) could represent a major increase in merchandizable square footage, there's a potential incentive for teardowns. And once roofs become a profit center, to what extent will beneficial but less lucrative uses survive?

Under the current zoning, rooftops typically house mechanicals -- elevator overrides, vents, HVAC equipment, antennas, and the like. If these necessary-but-less-than-aesthetic pieces of equipment don't go on the roof, where will they go? One developer's submission suggests that the top floor of the basement is the next-best location in commercial buildings -- in which case parking and/or storage space is likely to be displaced. If mechanicals stay on the roof, will they be re-located in ways that make them more objectionable? In addition to being ugly, such equipment can be noisy, hot, and/or smelly depending on its function.

More recently, rooftops have provided space for environmentally-friendly features like solar panels, green roofs, and stormwater management systems. In addition to helping meet sustainability goals or green building requirements, such features can lead to reduction in utility costs for building owners and/or residents. But, once these features are placed in competition with revenue-generating uses, they are unlikely to be allocated prime rooftop real estate. Solar panels, which need direct access to sunlight, face new constraints on height and orientation under the proposed guidelines as well as the likelihood of a shrinking footprint. To what extent -- and where -- is it desirable to preserve rooftop space for uses that contribute more to sustainability than to profitability? New York, for example, has recently prioritized "green" rooftop uses in its zoning code.

Finally, some residential buildings have provided communal recreational space -- like swimming pools -- on their roofs. In the not-too-distant past (up until 2006), on-site recreational space was required of multifamily residential projects. But once inclusionary zoning was contemplated, developers argued they couldn't be expected to do both. So, at their behest, OP proposed and the ZC agreed to repeal recreational space requirements for new multifamily buildings. (Ultimately, the downtown developers who pushed for this repeal then proceeded to get themselves exempted from inclusionary zoning requirements as well. Which makes it pretty outrageous when they suggest that the usual IZ requirements should govern penthouse construction. For them, the usual = "none." But I digress.)

The absence of recreational space has been a real issue in NoMA, where thousands of units of housing came online after the repeal of the requirement. The solution has been for DC government to spend $50 million to create parks in the neighborhood but the available land is so expensive that these recreational facilities may end up located in freeway underpasses.

At any rate, we're now at a stage where, at least in some areas, there's a market incentive for new apartment buildings to provide rooftop pools (see, e.g. the Park Van Ness project in Chevy Chase). But that's likely to change once that same space could be turned into two floors of luxury penthouse units instead.

What can/should we do to incentivize the use of rooftops in a way that will benefit DC residents generally? Or do we plan to make our rooftop spaces the private preserve of a handful of super-wealthy owners of pied-a-terres?

3. How should we regulate what happens on roofs?

Setbacks aren’t enough -- they address street-level views -- but view isn't the only issue and the street (much less the sidewalk immediately in front of the building) isn’t the only relevant vantage point.

These amendments are being sold as ways to prettify our skyline -- but there are no requirements, no review, no design standards to achieve that end.

Serious thought needs to be given to what can and cannot be placed in the setback areas -- can it include outdoor seating and associated temporary structures (bars, tents, heaters), mechanicals that are no more than 4 feet tall, solar panels, or green roofs?

Shouldn't the relationships among different rooftops be considered? Can one building place its mechanicals in a way that spoils another’s view? Or its penthouse in a way that undermines the efficacy of another’s solar panels? On the ground, we pay attention to how the actions of one property owner affect the interests of neighbors -- don’t we need to look at that issue in the air as well?

The Bottom Line: We need to establish public priorities regarding rooftop uses and then create an incentive structure that reinforces our policy objectives.

"Maximize developer profits" is the only objective that can be deduced from OP's current proposal. And that's not public policy. That's a parting gift to developers (former contributors? future clients?) from government officials who are no longer accountable to the public they are supposed to serve.

Too much is at stake here -- both in the regulations themselves (20 extra feet of height in every commercial or multifamily zone citywide) and in the precedent they'll establish (that the interests and preferences of city residents can be ignored with impunity) -- to let this pass.

What you can do:

The right approach would be for the question of rooftop uses to be taken up as part of the forthcoming Comprehensive Plan amendment cycle (scheduled to begin in early 2015). This is what the Office of Planning repeatedly promised both DC residents and Congress throughout the Height Act debate. See, for example, OP's statement that

The Height Act is a federal law that can be modified only through

congressional action. Any relaxation by Congress of the current

Height Act restrictions would still require further review, public

participation, and decisions by the District and federal governments

about whether, when and where any changes to building heights

would actually occur. The District would undertake amendments to

its Comprehensive Plan and then initiate any zoning changes deemed

appropriate through its normal processes, including substantial public

input, to respond.[1] (emphasis added).

Mayor-elect Muriel Bowser and Council Chair Phil Mendelson are the people who have the power to ensure that this promise is kept. If you feel strongly about this issue, please send them an email ASAP, letting them know that you'd appreciate their intervention. Their addresses are mbowser@dccouncil.us and pmendelson@dccouncil.us

[1] Government of the District of Columbia, Height Master Plan for the District of Columbia: Final Evaluation and Recommendations, November 20, 2013, page 7. See also pp. 2, 45-46 of that document as well as similar comments in the September 20, 2013 Draft Recommendations, pp. 1, 10, 44.

Penthouse Follies

noreply@blogger.com (Sue Hemberger) — Tue, 11 Nov 2014 16:25:00 +0000

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

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

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

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

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

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

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

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

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

______________

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

We Deserve Better

noreply@blogger.com (Sue Hemberger) — Wed, 06 Aug 2014 16:59:00 +0000

Watching the videos of the Zoning Commission’s July hearings, a few things became clear:

1. The ZC is being asked to make the kind of decisions it was never intended or structured to make.

2. In the absence of both electoral accountability and the data necessary to make intelligent and well-informed choices, a majority of the Commissioners seems comfortable making these decisions based solely on their own personal preferences or beliefs. Chairman Hood has repeatedly resisted such an approach -- see, e.g., his recent admonition: “Why don’t we take self out of it . . . and try to think of the city as opposed to what we personally would do.” -- but the other two Mayoral appointees seem to pay him no heed.

3. Unless there’s a major shift in the political landscape, the likely result will be that three individuals, none of whom has been elected, will be determining whether DC upzones citywide, incentivizes the subdivision of larger homes, makes it more difficult and expensive to own a car while living in the city, replaces public input with a developer-controlled market in density credits in neighborhoods like NoMA, West End, and Capitol Riverfront, and decides that single-family residential neighborhoods do not belong in an urban environment like ours.

These are not policy choices that were mandated by the democratically-adopted Comprehensive Plan. And I’m fairly certain that none would survive the Comp Plan process. There’s an easy way to find out. A new Comp Plan amendment cycle is imminent. Rather than make these decisions themselves, the Zoning Commission should tell the Office of Planning to get Council approval of these policies through that process before asking the ZC to implement them through the ZRR.

4. Finally, it appears that the ZRR hearings scheduled for early September may be crucial. There are clear divisions of opinion among the Commissioners and the compromise appears to be "let's hear from the public." Experience tells me that that's literal -- i.e. the Commissioners pay more attention if you show up and speak than if you submit written testimony.

If you don't like what's happening, it's important to push back -- not only at Zoning Commission hearings, but as you talk with and evaluate Mayoral and Council candidates. As residents, citizens, voters, and property-owners we need to demand that city planning represents our interests and not just developers', that it is based on civic priorities that have emerged from robust public discussion, and that it is informed by careful study and understanding of the District's (including various neighborhooods') resources and challenges. Right now we have none of the above. We deserve better.

While Nobody was Paying Attention...

noreply@blogger.com (Sue Hemberger) — Tue, 05 Aug 2014 16:57:00 +0000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update

noreply@blogger.com (Sue Hemberger) — Fri, 01 Aug 2014 15:05:00 +0000

Since I last posted, there have been a few major events. Here's the "just-the-facts-ma'am" overview, with links to the relevant documents. Commentary on specific issues will follow in later posts.

1. On June 16^th, the Office of Planning proposed some changes (“alternative text”) to the draft code that was discussed last fall. These changes were framed as reconsiderations of policy based on public testimony. The text of OP’s proposals can be found here or by going to IZIS and finding Exhibit 725 on page 16 of the log for ZC Case 08-06A. This is a 90 page document that may be easier to read online than to print out (It's not page-numbered consecutively and different sections use different formats and orientations. My home printer choked on it; a friend's worker printer had no problem). Topics covered include definitions, lighting, big box retail, accessory apartments (formerly "ADUs"), corner stores, camping in alleys (aka Tiny Houses), theater space in residential areas, parking, and downtown.

2. On July 10^th, the Zoning Commission discussed the alternative text and ultimately voted 5-0 (Michael Turnbull was not in attendance but submitted a proxy) to set a modified version down for public hearing(s). The Commissioners all agreed that the Lighting section was not ready for setdown. And because there was disagreement within the Commission on the merits of some of OP’s proposed alternatives, the Commissioners decided to set down both the new and old versions of the rules regarding accessory apartments and parking requirements. All other provisions were set down as proposed.

3. Since that setdown decision, a number of new hearings on the ZRR have been scheduled for September. One additional hearing on the original text has been scheduled for September 4th. Participation in this hearing is limited to people who have never previously testified on any aspect of the ZRR and to ANC Commissioners (regardless of whether they have previously testified). Hearings on the newly setdown "alternative" text -- at which anyone may testify -- are scheduled for September 8th-11th. It’s not clear whether you may testify each night on a different topic (e.g. accessory apartments, big box retail, parking) or whether you’re limited to a single appearance and three minutes of testimony. All hearings start at 6 pm.

Oddly, a revised draft of the alternative text, reflecting what happened at the July 10th meeting, has not (yet?) been produced. So the ZC has posted three documents for the September 8th-11th hearings -- the original "alternatives" text (Exhibit 725), OP's pre-hearing correction and summary memo (725A) and another OP post-hearing memo (725B) that makes a few changes to definitions, but says nothing about eliminating the Lighting section or asking people to weigh in on the question of whether the "original" or "alternative' texts on accessory apartments or parking is preferable.

4. Not news, but a reminder: The record for written testimony (by anyone, on any topic) on the ZRR remains open until September 15^th. Written testimony may be submitted via the IZIS system or be mailed, emailed, or faxed to the Office of Zoning.

5. On July 28^th, OP asked the ZC to set down as-yet-unwritten text amendments that would allow 20 foot tall habitable penthouses to be constructed above the roofline as matter of right in all zones except R1-4. The additional 20 feet of penthouse would not be counted toward the height limit in the zone. Nor would the square footage in the penthouse count toward limits on floor area ratio (FAR), even though penthouse space could be used for any use permitted in the zone -- so it would be the same kind of space (office, residential, restaurant) as the space below the roofline. This proposal would represents significant upzoning citywide.

As you can see from OP's description of its proposals, the only constraint on the area (square footage) of such penthouses would be setback requirements and the limit on the number of stories (one penthouse story will be allowed where the building maxes out the Height Act limit; two stories will be allowed everywhere else). Restrictions based on FAR and/or roof area would be eliminated. If the ZC isn't willing to eliminate those restrictions, OP advocates loosening them so that adding penthouse space won't involve subtracting space elsewhere.

Rather than set down these (non-existent) text amendments (filed as ZC case #14-13), the ZC decided to discuss the issue again on September 4th (prior to the public hearing), at which time OP, presumably, will have actual text to present.

6. There's a third ZC case (#14-11) that proposes more text amendments based on ZRR testimony. These amendments would be made to the existing code and are offered as ways of addressing the pop-up and condo conversion pressures that are currently being faced in R-4 neighborhoods. The setdown hearing was July 17th, Another 5-0 vote (with Peter May absent/voting by proxy) for setdown and, once again, the notion that the public hearing with be advertised with alternative text so "all options are on the table."

Well, I tried....

noreply@blogger.com (Sue Hemberger) — Tue, 13 May 2014 16:53:00 +0000

Last month, when I testified at the Budget Oversight hearing on the Office of Zoning, I recommended that additional funding be provided to hire a certified planner to serve as a public advocate to the Zoning Commission. I argued that the Commissioners needed access to a planner who could offer an independent assessment of the Office of Planning's proposals and who would handle public outreach in a way that treated citizen input as a source of local knowledge/potential insight rather than as an obstacle to be overcome or maneuvered around.

Since then, the Office of Planning has released its summary of the written testimony submitted on the ZRR thus far. So not only do we have OP proposing, OP vetting OP's proposals -- we now also have OP summarizing and characterizing critiques of its proposals. If this is the filter that all written testimony will pass through, then we will never have a serious and substantive debate about how to revise the zoning code.

Concerned about that prospect, I wrote to the Zoning Commission last week. Here's the letter:

May 9, 2014

Zoning Commission

District of Columbia

441 4^th Street, NW #200

Washington, DC 20001

RE: Case 08-06A

Dear Commissioners:

I am writing in response to Chairman Hood’s request (at last month’s Budget Oversight Hearing) that suggestions about how the Commission should proceed in its deliberations on the proposed new zoning code be sent by letter to Mrs. Schellin for distribution to the Commissioners. In my testimony at the budget hearing, I argued that the process of substantively amending the existing code needs to be separated from streamlining it and that a public advocate position should be created within the Office of Zoning to handle outreach and to provide independent review of proposals that originate in the Office of Planning. I write today to extend and apply that analysis to the situation you are now facing.

To put it bluntly, you can’t rely on the Office of Planning to summarize the public comments. Abstractly, it’s problematic enough that we have a system where OP is responsible first for making the proposals and then vetting its own work. It makes no sense to also give OP the role of characterizing and evaluating critiques of its work product. That approach will create a soundproof echo chamber rather than the robust policy debate that should inform your decisionmaking.

Ideally, the Office of Zoning should (a) hire someone qualified to do an independent analysis of the public comments and (b) outline what the Commission wants from such an analysis (e.g. identification of areas of consensus and of controversy, suggestions as to how to break down topics for the next round of hearings, and a list of specific questions to be addressed/answered for each topic).

With the May 5^th submission of OP’s summary of written public comments, my concerns are no longer merely hypothetical. The summary that OP has produced is misleading, erroneous, and unhelpful. Their agenda appears to be to stifle debate rather than to identify what’s at issue and to find the best way to evaluate and accommodate competing concerns/interests/preferences/factual claims.

Consider, for example, at the issue of accessory apartments. If you were to rely on OP’s summary, then the impression you’d come away with is that some people are for accessory apartments (and we thank them) and that some people are against (and they are wrong – we’re not proposing what they think we are, they haven’t seen our studies, they don’t understand the current law, and/or they should be talking to a different agency). OP expresses its willingness to re-write a passage that doesn’t convey its intent and to lower the minimum lot size, but there’s no meaningful reconsideration or refinement of policy based on public input, no additional evidence/explanation provided to justify proposed policies, and no attempt at problem-solving. This summary is a document that does nothing to help the Commission weigh the pros and cons of various proposals.

By contrast, if you read the written comments themselves, the most obvious takeaway is that internal accessory apartments are much less controversial than external accessory apartments. While there is vehement and categorical opposition to external ADUs, no one who testified appears to be opposed to accessory apartments located within the primary home on a lot. A few ANCs call for the special exception requirement to be maintained for these units, but most of the concerns that are voiced about internal apartments involve creating a mechanism for insuring compliance with tax, zoning, and safety requirements under a matter-of-right regime. Moreover, if you actually look at the written testimony or at Montgomery County’s Class 3 accessory apartment regulations (rather than rely on OP’s summaries), you’ll find examples of such mechanisms – e.g. requiring a certificate of occupancy or creating a licensing process that provides notice to neighbors and imposes penalties for unlicensed units (as MoCo did).

In OP’s summaries, none of this information is clearly presented. And it is helpful information because it suggests that you should (a) consider internal accessory apartments separately from external accessory apartments (b) flag the compliance issue as a crucial one and ask for more input on that question (e.g. from DCRA, DHCD, and ANCs, and regarding how other jurisdictions handle these issues); and (c) consider external ADUs in a separate hearing that encompasses a variety of other related issues – alley lots, substandard lots, and the appropriate size and uses of accessory buildings.

Long story short, the challenge here is to treat criticism as an opportunity to improve the text, the policies, and the process. Otherwise, public hearings are pretty much a waste of everyone’s time. Public testimony has provided the Commission with a wealth of information (as well as a series of unanswered questions). And the key to making use of that information is to entrust its analysis to someone who is more interested in learning from public input than in dismissing it.

Quality control is the Commission’s job here – and that is a function that no one else in DC government is empowered to perform. The fact that OP’s proposals do not become law unless/until you adopt them suggests that this role has been given to you for a reason. Ultimately, the Zoning Commission is responsible for promulgating the District’s zoning regulations. Residents throughout the city have, collectively, spent untold hours working to ensure that the revision process will actually improve -- rather than simply eviscerate -- the existing code. Don’t betray them. Your mission is not simply to “get it done,” but to “get it right.” And you can’t do that without establishing a more deliberate and deliberative decisionmaking process. To create that process, you need to break the revision down into manageable pieces and to focus the public debate so that it is more substantive and provides you with the information you need to make intelligent and responsible decisions on a series of complex issues.

It’s a lot to ask, I know – but no more than what you are capable of, and no less than what District residents deserve.

Respectfully submitted,

Sue Hemberger

cc: Council Chair Phil Mendelson

I watched the Zoning Commission's hearing online Monday night and learned that I misconstrued Chairman Hood's testimony at the oversight hearing. He was citing his previous invitation for this kind of input -- not reiterating that invitation. The problem I've identified remains, but I've got no sense that anyone plans to address it. My guess is that, unless the ZRR becomes an important issue in the upcoming Mayoral contest, we're likely to end up with a trainwreck of a new code.

Back to the Future?

noreply@blogger.com (Sue Hemberger) — Wed, 23 Apr 2014 20:00:00 +0000

Was 1956 more car-centric than we are today? That seemed to be the premise behind one of the Greater Greater Washington (GGW) posts I wrote about yesterday. It suggested that, in 1956, DC's planners assumed everyone would drive everywhere -- whereas today we know (and do) better.

I was skeptical. After all, the interstate highway system hadn't even been built in 1956 -- Eisenhower signed the crucial legislation that summer. So I ferreted out an old Statistical Abstract of the United States and compared the 1956 numbers with those in the most recent DC DMV Annual Report. Then I made a little chart for your viewing pleasure:

	DC population	licensed drivers in DC	vehicles registered in DC
1956	831,000	336,977	196,000
2012	633,427	368,667	284,905

With a significantly higher population than we have today, DC had fewer drivers in 1956 and fewer registered vehicles. It was also a society in which people traveled fewer miles. I couldn't find state-level statistics on vehicle miles traveled, but both the Statistical Abstract (p. 556) and FHWA’s Highway Statistics 2012 provide national vehicle miles traveled (VMT). The total VMT in 2012 was over 4.7x the VMT in 1956 – and that’s with only an 87% increase in population over the same period. Which means that per capita travel in the US was about 2.5x as many miles in 2012 as it was in 1956.

So if we really were living in a time warp, and DC's current zoning code reflected 1950s realities, then it would assume a less car-dependent society than the one we actually live in now. In fact, last month public transit advocates trumpeted the fact that in 2013 the US experienced record levels of transit usage -- the highest since 1956! But, alas, the benchmark that we matched was the total number of trips made using public transit in a year --- so, in per capita terms, we're using transit only about half as frequently as people did in the mid-1950s, despite the fact that, overall, we're traveling much more.

In general, I think that the whole invoking-the-spectre-of-the-1950s move is basically just a distraction in debates over the zoning rewrite. After all, our current zoning code, as Harriet Tregoning acknowledged, has been modified a thousand times since it was adopted. And, as Tregoning also acknowledged, the proposed "new" code would retain 90% of the provisions in the existing code. So the "eew, retrograde" vs. "shiny! modern! new!" dichotomy that GGW is trying to set up is a false one.
But if we ARE going to talk about the 1950s, let's at least get the facts right.

The Soul of the City

noreply@blogger.com (Sue Hemberger) — Tue, 22 Apr 2014 20:46:00 +0000

In the past week, Greater Greater Washington has posted two articles urging that the draft zoning code be adopted ASAP. The theme of the first piece is that the code we're operating under now has been outdated since 1970. And the theme of the second is "enough is enough" -- time to cut off public comment on the draft.

Strikingly absent from both posts is any substantive defense of the 980 page draft code now before the Zoning Commission. In fact, at a recent oversight hearing, one of the authors of the first article testified that the proposed new code was inadequate and already, itself, out-of-date -- therefore, it is imperative that it be adopted immediately!

In general, proponents (following OP's lead) have vacillated between two very different claims. One is that there's nothing much to see here -- OP's proposals started out modest and have been substantially weakened in response to public pressure. The other is that it is urgent that this "new, modern, and more understandable zoning code" be adopted quickly because housing costs "are rapidly spiraling out of control" and we shouldn't delay in "creating a more walkable and inclusive city." How such "tiny" changes in the code will have such a significant impact goes unexplained.

Maybe the real problem here is that the GGW/Smart Growth crowd has read the press releases, while most of the critics of the ZRR have actually read (at least parts of) the draft text itself. Throughout the ZRR process, OP has stressed three changes -- ADUs, corner stores, and parking requirements. Those are the issues that proponents have focused on. And while the changes in parking requirements could be transformative in some areas (e.g. downtown and in mixed-use neighborhoods near Metro where on-street parking is already scarce), the ADU and corner store changes are relatively minor -- enough to create major headaches for a few unfortunate homeowners who suddenly find themselves next to nuisance properties, but not significant enough to have any impact on affordability or walkability. ADUs and corner stores are essentially symbolic gestures -- not solutions.

They are probably also issues where consensus could be quickly and easily achieved. Allow internal ADUs as matter-of-right (while requiring a certificate of occupancy as an enforcement mechanism for enforcing tax and safety compliance) and either abandon the external ADU idea or do a pilot program.And since some communities love their corner stores and others find them problematic, give interested neighborhoods the option of adopting more permissive regs, allowing each to designate its own locations and conditions. Interestingly, in both cases (external ADUs and corner stores), Georgetown was able to customize the ZRR provisions and it wanted more restrictive rules than what OP has proposed citywide. Why shouldn't other neighborhoods be given the same opportunity? No delay required -- just keep the existing rules as the default, but adopt a new regulation that outlines the customization process and parameters.

Parking's a more difficult issue (and one where zoning is only part of the problem/solution), so I don't see a quick and easy fix there. But the absence of even the most basic data collection and of integrated planning across agencies has made this a more divisive issue than it needs to be. Certainly opponents of OP's proposals favor "right-sizing" parking. The question is how we determine what the right size is. And when OP begins by telling its consultants that "developers would generally be happy to build less parking" and then instructs them to "identify zoning changes that would result in reduced accommodation of parking at new development in the District," there's justifiable skepticism as to whether "how much parking do we really need?" is the question being answered.

In any event, unlike supporters, critics of the ZRR are concerned about a much broader range of issues than ADUs, corner stores, and parking. They're looking at unpublicized aspects of the ZRR, at unintended consequences, and at what the ZRR has failed to do. And the issues that have emerged include public input, housing affordability, neighborhood character, the fate of downtown (and how to create attractive and liveable high-density neighborhoods), development pressure that threatens single-family housing stock, and the "where and how do we grow?" issue that manifests itself in a variety of different forms -- including overdevelopment, uneven development, and gentrification, as well as infrastructural and public facilities issues.

I think it's fair to say that, increasingly, people see the soul of the city as at stake. Are we going to be a city where people can put down roots, where you don't have to be affluent (and able-bodied) to stay, where you can raise kids and have parks and schools nearby, and where nature, history, and human scale are prized? Or are we going to be a city of transients where developers extract maximum value from the land and where local government's primary objective is to increase its tax base?

This debate isn't a referendum on cars or change or millenials or urbanism. Basically, it's a controversy over where the balance between community and commerce should be struck and it's being raised in the context of the ZRR for a host of different reasons. People across the city are sensing that the social contract zoning represents is being abandoned. If there's money to be made, then all bets are off. The continued failure of DC's Office of Planning to do any actual planning, its refusal to provide a complete and honest account of the changes it is proposing, and its belligerence in dealing with citizens who are raising legitimate concerns about what is happening in their neighborhoods have only aggravated the situation. And it certainly doesn't help that the ultimate decisionmakers here are five unelected Zoning Commissioners who haven't been given the staff or the research they'll need to make well-informed decisions on these issues.

Miscellany

noreply@blogger.com (Sue Hemberger) — Sun, 20 Apr 2014 22:26:00 +0000

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.

ZRR Record to Stay Open until September

noreply@blogger.com (Sue Hemberger) — Wed, 16 Apr 2014 12:30:00 +0000

After meeting with a group of ANC Commissioners led by Ward 8's Holly Muhammad, Mayor Vincent Gray agreed that the record for the Zoning Regulations Review (ZRR) should remain open until September 15, 2014. The Zoning Commission affirmed that deadline in a 4-1-0 vote last night. No additional public hearings have been announced at this point but, presumably, some will be scheduled.

At the Budget Oversight hearing on Monday, Zoning Commission Chair Anthony Hood remarked that he was seeing increasing interest in (and concern about) changes to the zoning code. What I've noticed is that, as more communities take a closer look at what is being proposed, new sets of issues emerge and they emerge in ways that demonstrate the differences among neighborhoods and the need for policies that are sensitive to those differences. The loss of single-family housing stock is one such issue. I suspect that creating livable downtown neighborhoods will become another.

One of the reasons why additional hearings are necessary (and why participation in such hearings should not be restricted to people who have not previously testified) is that the process of community engagement yields new insights. I know I've learned quite a bit in the four months that have elapsed since I testified before the Zoning Commission last November (and I expect to learn even more between now and next September). I wholeheartedly applaud Commissioner Hood's efforts to get more people (and a more diverse group of people) to weigh in on the ZRR. And I respect his desire to ensure that no one group dominates the discussion. But I sometimes wonder whether he sees the hearings as some kind of pseudo-plebiscite rather than as a vital source of information about what is (and is not) being proposed in the code and what impact various provisions are likely to have in specific situations and locations.

To put this another way, the goal here isn't to count noses or to judge which way the wind is blowing but to anticipate and prevent problems, to craft regulations that are workable and beneficial, and to ensure that new policies are consistent with the Comprehensive Plan.

Public Advocacy

noreply@blogger.com (Sue Hemberger) — Mon, 14 Apr 2014 23:56:00 +0000

[[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.

-----
* 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).

Busytown Planners

noreply@blogger.com (Sue Hemberger) — Sat, 12 Apr 2014 13:05:00 +0000

I've been struggling to find a metaphor that captures what's been happening with the ZRR. OP keeps drafting and redrafting but the proposed new code never gets better and, at this point, it's significantly worse than the admittedly-less-than-optimal existing code. Rube Goldberg and Frankenstein both conjure up the cobbled-together unwieldiness of the draft, but not the experience of working through successive iterations only to realize that the hole OP has dug us into keeps getting bigger and bigger.

Then it came to me -- MR. FIXIT!! As a kid, I wasn't a big fan of Richard Scarry (The editions of his work that were around back then were pretty sexist, and I hate visual clutter), but, as a young urbanist, I did love Busytown (a vibrant, walkable, and diverse, 24/7 community!). And my favorite character was Mr. Fixit -- a fox in handyman's clothing who confidently rose to the challenge of fixing everything that was broken (and quite a few things that weren't). Here's a sample of his handiwork:

[Mr. Raccoon is having a bad day.]

"I'd better call Mr. Fixit," he said. . . .

He arrived home just as Mr. Fixit was leaving. Mr. Fixit had spent the entire day finding new leaks.
"I will come back tomorrow to fix the leaks," said Mr. Fixit.

Moral of the Story: Sometimes the cure is worse than the disease. This is one of those times. It won't get better if we keep relying on Mr. Fixit to clean up the mess he's created.

Somewhat cheerier addendum: The fact that it takes many years to do something really badly doesn't mean that it has to take even longer to do something right.

Learning from Philadelphia

noreply@blogger.com (Sue Hemberger) — Wed, 09 Apr 2014 22:00:00 +0000

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.

Not the Planning Director We Need

noreply@blogger.com (Sue Hemberger) — Mon, 07 Apr 2014 20:01:00 +0000

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)

noreply@blogger.com (Sue Hemberger) — Mon, 07 Apr 2014 19:30:00 +0000

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

Where DC's Office of Planning Expects Half of the City's Growth Over the Next 8 Years

noreply@blogger.com (Sue Hemberger) — Fri, 04 Apr 2014 15:48:00 +0000

Cluster	Neighborhoods	Population Added

25	NoMA, Union Station	15,342
27	Capper/Carrollsburg, Navy Yard, Near Southeast	10,084
2	Columbia Heights, Mt Pleasant, Pleasant Plains, Park View	8,539
8	Downtown, Mt Vernon Square, Chinatown, Penn Quarter	8,419
21	Bloomingdale, Eckington, Edgewood, Truxton Circle	8,077
39	Congress Heights	5,579
37	Barry Farm, Sheridan, Buena Vista	5,279
18	Petworth, Crestwood, Brightwood Park	5,231

Together these clusters account for over 66,000 of the more than 131,000 residents OP anticipates will have been added to DC's population between 2010 and 2022. This table includes all areas with a projected increase in population of 5,000 or more.

As the map below (based on the same data) suggests, swathes may be a more useful metaphor than clusters in imagining where population growth is likely. The darker the area, the greater the estimated population increase.

Source: District of Columbia State Data Center, Indices 2013, Chapter 2, p. 40

Note that these numbers don't assume that much progress will have been made by 2022 on the redevelopment of the Walter Reed or the Saint Elizabeth's East campuses. The anticipated 2022 population at Walter Reed (Cluster 40) is 844 people, on a site that the Mayor has said will ultimately house 4000 residents. At Saint Elizabeth's (Cluster 43), the 2022 population is estimated to be 541. That campus is planned for 1300 new residential units (which probably translates to over 2000 people). The McMillan Sand Filtration Plant is located in Cluster 21 (which does make the list of high-growth areas) but it's unclear whether -- or to what extent --the estimated population increase is attributed to that site's redevelopment.

Affordability, Part 2: Opportunity Costs and "Highest and Best Use"

noreply@blogger.com (Sue Hemberger) — Sat, 29 Mar 2014 15:57:00 +0000

One reason I like to do outreach on zoning issues is that I learn a lot from these forums. Each neighborhood has its own set of development issues -- some are unique; others are variations on common themes or harbingers of things to come. And every neighborhood has a wealth of local knowledge, eagerly shared by people who have watched and analyzed what's been going on around them. The social scientist in me -- I'm a former college professor with an interdisciplinary background in law and society -- is fascinated by the variety of ways in which the same rules play out differently across the city.

This post was inspired by Ward 1, where "condo-ization" puts single-family housing stock and neighborhoods at risk.

"Single-family homes" can (and do) accommodate a variety of different types of households -- nuclear families with or without kids, multi-generational families, groups of roommates, boarders, live-in caregivers, and renters of accessory units. Over the course of its lifespan, the same house may move fluidly between these various types of living arrangements.

What makes condo-ization problematic is that, once a property ceases to have a single owner, this fluidity is lost. Suddenly, even though it's still one building, the house is no longer one property. And finding a single owner who is willing and able to re-acquire all the units post-conversion (probably over time and with the possibility of holdouts) seems unlikely.

In neighborhoods like Mount Pleasant and Lanier Heights, residents have seen that condo-ization is pushing housing costs up -- not down. Rent in a group house is affordable to recent college grads and other newcomers who wouldn't have the financial means to live in the same house if it were divided into condos selling for upwards of $500,000 each. Increasingly, condo conversions are effectively pricing older homes in these communities out of the single-family market. They're also changing the look and scale of historic rowhouse neighborhoods by incentivizing pop-ups and pop-outs.

In general, the most affordable housing is in older buildings. Which means that when older residential buildings get torn down and replaced by newer residential buildings, the net result is likely to be increased housing costs. Basically, it only makes sense to tear one building down and build another to serve the same function if the replacement building will produce substantially more income. When bigger buildings replace smaller buildings, part of the increase in income comes from the fact that there are more units to sell or rent, but it's also the case that a new building (or unit) will most likely command a higher rent or sales price than an older one -- in part, just because it's new but also because, from a development perspective, projects that command higher rents are more attractive, especially in places where land values and existing properties haven't yet realized the full market potential of the area. That's why seemingly every new multifamily project in DC is a"luxury" condo or apartment building featuring lots of smaller units.

Subdivision is a more ambiguous phenomenon than teardowns -- it can happen for a variety of reasons (e.g. if there's no market for single-family homes of a particular size in a particular area) and its economic consequences may vary. In areas where single-family homes are scarce and in high demand, downzoning (and/or other restrictions) may be necessary to preserve existing housing stock. In the past, some rowhouse neighborhoods relied on historic designation to protect neighborhood scale and character. But, increasingly, historic preservation hasn't proven sufficient -- which, presumably, is one reason why Georgetown requested (and was granted) a reduction in allowable building heights (from 40 to 35 feet in rowhouse zones) in the ZRR.

There's a broader issue here -- and it's not limited to historic neighborhoods or areas, like Lanier Place, where the existing zoning is out-of-sync with the built environment. In general, once OP starts loosening zone definitions, new ways to use land are put in competition with existing uses. And where the existing uses are single-family homes, those will quickly cease to be the "highest and best" (i.e. most lucrative) use of the property. So the conversions begin -- and, as Ward 1 residents have pointed out, some of those conversions will not be reversible.

If we value single-family housing (or if we want garden apartments, or if we want neighborhood-serving retail, or any other relatively small-scale type of development), then we need to have restrictive zoning that is consistently enforced. Zoning that restricts the use of some parcels to single-family housing (or to some other specific use) doesn't have to mean suburbanization -- different types of zones can be located in close proximity to each other in the same neighborhood. The issue is limiting the range of potential uses in competition for the same property, so that market forces don't overwhelm desired types of development. Which, after all, is the raison d'etre of planning and zoning.

Of Needles in Haystacks and Pigs in Pokes

noreply@blogger.com (Sue Hemberger) — Thu, 27 Mar 2014 19:52:00 +0000

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

noreply@blogger.com (Sue Hemberger) — Wed, 19 Mar 2014 13:43:00 +0000

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.

Downtown: That's Where the Action Is

noreply@blogger.com (Sue Hemberger) — Mon, 17 Mar 2014 14:04:00 +0000

As I said in a previous post, I think that the most publicized aspects of the ZRR (accessory apartments and corner stores) are basically sideshows. Accessory apartments and corner stores aren’t going to transform DC – we’ve already got thousands of the former and hundreds of the latter. These aren't changes that are being pushed for by the building industry. DC's developers aren't really interested in converting your garage into an apartment or building out the ground floor of your rowhouse for a retail tenant. Nor does it take 7 years or 980 pages of text to loosen the restrictions on accessory apartments or corner stores. OP could get that job done simply by amending a few sentences in the existing code.

So what’s really going on? While the small minority of DC residents who are tuned into the ZRR are, understandably, focused on how it will affect their neighborhoods, major giveaways are in the works downtown.

First, the area treated as downtown is being significantly expanded. As the graphic below indicates, it will triple in size.

[Source: Office of Planning Setdown Report on Subtitle I]

Secondly, a number of the areas newly incorporated into downtown would undergo significant upzoning. Limits on FAR are being removed for residential projects and height limits are being raised (e.g. from 90 feet to 130 feet). This effectively doubles the matter-of-right development capacity of some parcels.

Meanwhile, nine of the eleven downtown zones are exempted from inclusionary zoning requirements and all downtown zones will be exempted from parking minimums. I'll also throw in the mix the fact that the Zoning Commission agreed to eliminate recreational space requirements a few years ago on the grounds that it would be unduly burdensome on developers to require them to provide both affordable housing and recreational space for tenants. Of course the end result downtown is that developers aren't required to provide either.

No wonder developers and the people who work for them (consultants, architects, RE lawyers) support the ZRR. It's a windfall for downtown developers. But "allow more, require less" is a short-sighted and expensive strategy from a public policy standpoint. If we want to create livable downtown neighborhoods, then we need to add infrastructure and amenities as we add density. And the people who profit from increased density should be required to internalize a significant share of these infrastructural costs.

Weekend Reading: Parking Studies

noreply@blogger.com (Sue Hemberger) — Sat, 15 Mar 2014 13:53:00 +0000

Last July, the Transportation-Land Use Connections Program at MWCOG gave DC's Office of Planning a grant that would partially fund a study of parking demand in multifamily residential buildings. In theory, this study is supposed to inform DC's zoning update. But, of course, the recommendations in the update have been made prior to any such study.

On the one hand, it seems like studying a situation before you try to regulate it is just common sense. And that's what other, more professional, planning departments elsewhere have done. See the examples below for the kinds of data that NYC and Portland collected and analyzed before proposing changes to their parking requirements.

But that's not what DC's Office of Planning did. Instead, at the beginning of the ZRR, OP commissioned a very different kind of study. Here is the consultants' account of what they were asked to do:

The project’s Kickoff meeting established that the project was initiated out of a perceived need to update the District’s zoning requirements, many of which were felt to be too accommodating of personal vehicle travel given current transportation opportunities (high-level transit service, increased transit-oriented and mixed-use, high-density development) and constraints (regional and local roadway congestion). While noting potentially strong opposition from some stakeholders, it was concluded that the primary goal of the current project was to identify zoning changes that would result in reduced accommodation of parking at new development in the District.

In other words, the ZRR started from the premise that the goal was to increase parking scarcity -- not to right-size parking. So we got an ideologically-driven set of proposals rather than an empirically-grounded attempt at problem-solving.

It's time to go back and do it right. Study first, then propose changes.

The studies below are interesting not only for their substantive conclusions, but also as potential models for research design on this issue.

New York

Manhattan Core Public Parking Study
Residential Parking Study
Inner-Ring Residential Parking Study (this December 2013 report is my weekend reading)

Portland

Parking Impacts for New TOD along Portland Inner Corridors

Affordability, Part 1: Parking

noreply@blogger.com (Sue Hemberger) — Fri, 14 Mar 2014 14:25:00 +0000

The Office of Planning (OP) has used housing affordability as a rationale for a number of proposals in recent years; the reduction or elimination of parking minimums, matter-of-right conversions of garages to rental apartments, and the relaxation or abandonment of Height Act limits are a few examples. Yet OP is not trying to reform or replace the part of the zoning code that is expressly designed to produce more affordable housing – the inclusionary zoning (IZ) provisions. This leads me to question whether affordability is a problem that OP actually wants to solve – or whether it serves too useful a function as an always-available justification for upzoning and other pet projects.

This post is the first in a series that will explain why various proposals in the ZRR will not make housing in the District more affordable – and how some are actually likely to make housing even less affordable.

Today’s topic: Parking requirements and housing affordability

The first thing to remember here is that car-free housing is easy to find in DC, and has been for decades. (My own household has been carless in DC for 25 of the past 26 years, so I know whereof I speak.) This is true for two reasons:

· On-site parking requirements weren't imposed in DC until after 1958. Thousands of apartments, as well as single family homes of various types (detached, duplex, rowhouses, and flats), still in use today were built before that time. In fact, such housing exists in sufficient quantity to account for on-street parking problems in areas like Capitol Hill, Logan Circle, Dupont Circle, and Georgetown where historic housing stock is common. It is not at all clear that, empirically, car-free housing in DC is cheaper than housing with on-site parking, but, at any rate, it is certainly already available in this market.

· Our fractional parking minimums (generally one space for every 2 to 4 apartments) mean that parking in multifamily buildings is typically sold separately (or “unbundled”). So even in buildings that do have on-site parking, people who don’t need or want parking don’t have to pay for it. Long story short, we already know what the price of housing without parking is in various neighborhoods. And it’s not going to change. There’s no reason to believe that housing in new construction with no on-site parking will be offered at lower rents (or sales prices) than units in existing buildings that are sold/rented without parking.

Arguments that parking requirements increase housing prices assume that housing prices are, essentially, a function of how much it costs to build housing. But cost-plus is not how housing is typically priced; rents are market-driven. And, in DC neighborhoods, there's one market for housing and a separate one for parking. Each commands what people are willing to pay, regardless of how much a particular unit cost to produce (e.g. surface parking spaces aren't necessarily cheaper than spaces in an underground garage in the same vicinity). This also means that, to the extent that parking costs have been smuggled into rent, even buildings without parking costs can/will claim that rent because they know that’s what the market will bear.

In fact, at least one local developer seems quite aware that car-lessness makes higher rents possible. “Matt Klein, president of Akridge, a commercial real estate company, and chairman of the Urban Land Institute’s Washington Chapter, said that 50 percent of all new residents moving into apartments in the District do not have cars. ‘That’s part of the way people afford units, by shedding other costs,’ he said.”

It’s also important to remember that the reduction or removal of parking minimums would primarily affect new construction. Yet the most affordable housing in an area is typically found in older residential buildings. Even the cheapest market-driven new construction is likely to be priced higher than older units in the same area, and this is especially true in hot housing markets and in gentrifying areas.

Experience in Portland bears out the claim that eliminating parking requirements does not increase housing affordability. Residents say the new car-free buildings are expensive. This graphic indicates that new construction in many areas of Portland rents for nearly twice what pre-1997 buildings do. Perusal of marketing info corroborates that car-free buildings are being marketed as luxury buildings at high-end prices. Basically, buildings without parking tend to be clustered in neighborhoods where there is a seller’s market. An article in Willamette Week (Portland’s City Paper-equivalent) offered this explanation:

Randy Rapaport, a longtime developer of condominiums and apartments on the east side, including the Belmont Dairy Apartments and Lofts, disagrees with the parking exemption. He says it simply allows developers to cut costs while creating gridlock for the neighborhood.

“These are sophisticated developers,” Rapaport says. “They know they can fill their units because this area is so hot. They know better. But they’re not required to know better.”

A NYC residential parking study affirms that when housing is scarce, developers know that it will command high prices with or without parking. In fact, a few developers have discovered that, in that market, fewer parking spaces can be more profitable than sufficient parking – on-site parking will command astronomical rates (with lower excavation costs) if most people in the building can’t have parking but a select few (who are willing to pay whatever it costs) can.

Ultimately, if developers are not compelled to internalize at least some of the costs of providing parking for their tenants, then the public will pick up the tab for the parking scarcity that results – see, for example, calls in Cleveland Park and Logan Circle for municipal garages. In the shorter-term, expect to see substantial increases in the cost of Residential Parking Permits (and increasing restrictions on on-street parking). Housing costs won't decrease, but parking costs will increase. That's not a way to make living in DC more affordable.

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

noreply@blogger.com (Sue Hemberger) — Thu, 13 Mar 2014 11:00:00 +0000

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.

We've Got Issues...

noreply@blogger.com (Sue Hemberger) — Wed, 12 Mar 2014 11:00:00 +0000

While participating in public hearings and outreach efforts, I've been keeping a running list of issues various residents and neighborhoods have with the proposed new zoning code. Here's the current version.

Major omissions:

The proposed new code fails to:

· Address the issue of housing affordability and fix what’s broken in the current inclusionary zoning provisions.

· Implement neighborhood conservation measures – e.g. to prevent pop-ups, dig outs, McMansions, conversion of housing stock to other uses, condo-ization of houses, out-of-scale development, etc. or to provide more effective buffering between zones with significantly different scale, uses, or intensities of use. Increasingly, a neighborhood that is not protected by historic preservation will not be protected at all. And historic preservation itself is becoming less protective than it used to be.

· Incentivize development in areas that have suffered from disinvestment.

· Apply the Green Area Ratio and affordable housing requirements to the newly expanded downtown. Analyze what it takes to create attractive and livable downtown neighborhoods and provide mechanisms for insuring that infrastructure, open space, and other public facilities and amenities are provided as heights and densities increase.

· Make the regulations more user-friendly. Somehow the Office of Planning has managed to draft a new code that is even more opaque and unwieldy than the existing code. Moreover, because the new code starts from scratch and uses some of same terms but defines them differently, the status and applicability of previous case law is unclear.

· Provide mechanisms for effective representation of community interests in development review processes.

Significant policy changes

The proposed new regulations would:

• Effectively eliminate single-family residential zones.

• Encourage the conversion of houses into apartments.

• Allow more commercial activity in residential zones.

• Threaten the integrity and viability of neighborhood commercial districts.

• Activate alleys by allowing home-based businesses and rental apartments to be located in garages and other out-buildings and by allowing residential development of alley lots of 450 SF.

• Minimize opportunities for public input and give developers and property-owners more control over development and land use decisions.

• Rely on generic “conditions” with no enforcement mechanism or penalty for non-compliance rather than on BZA review and project-specific requirements.

• Eliminate the ability to create overlays; impose one-size-fits-all policies citywide.

• Deliberately make it more difficult and expensive for people who live in the city to own a car.

• Treat every area within one-half mile of a Metro station the same with respect to parking requirements -- regardless of existing conditions.

• Significantly expand “downtown” to encourage maximum heights and densities in areas beyond the city center.

The Height Act is back in play

noreply@blogger.com (Sue Hemberger) — Tue, 11 Mar 2014 19:56:00 +0000

So much for Home Rule -- Tregoning's gone, Gray's disgraced, both the Council and public opinion polling came out strongly opposed to changes in the HBA, but Issa keeps pressing the issue. And Eleanor Holmes Norton, whose office disclaimed any knowledge of the bill yesterday, is the co-sponsor.

The text of the bill is available here.

[[Note that NCPC proposed communal recreational use for rooftop structures, but the bill would allow these penthouses to be private residential space.]]

And here is WBJ's coverage:

Updated: Mar 11, 2014, 11:30am EDT

House panel to weigh change to D.C. Height Act

Daniel J. Sernovitz

Staff Reporter- Washington Business Journal

House lawmakers are slated to consider making the first change in more than a century to the federal law that caps building heights in D.C.

The proposed change, which would allow uses like restaurants in the penthouse areas of certain buildings, wouldn't result in Manhattan-style skyscrapers in the District. But its passage could be an indication Congress is open to additional changes to the Height of Buildings Act of 1910 following a heated debate of the subject last fall.

The bill is slated to be considered by the House Committee on Oversight and Government Reform, chaired by Rep. Darrell Issa, R-Calif., on Wednesday. Issa has said he believes the measure is the first step in a larger debate around the Height Act and has urged the District and National Capital Planning Commission to consider other potential amendments to the law. If it passes the committee level, the bill would need to be approved by the full House and Senate and signed by the president before it can become law.

The proposed bill, based in part on a recommendation from the NCPC and one of the least controversial parts of the height debate, changes the 1910 law by permitting "human occupancy" in the penthouse space of buildings as long as those spaces are no taller one story or 20 feet or less above a building's roof. Building owners have typically used those spaces for mechanical equipment. In recommending the change, the NCPC said those spaces could be used as public amenities and generate additional revenue for their owners while not substantially impacting D.C.'s skyline.