Greater Greater Washington

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A trade pact might change local land use decisions in a big way

A key principle of land use in the United States is that homeowners can often veto new buildings on nearby land that other people own. A trade agreement that's currently in the works could have a huge impact on that long-established system of local control.


Hand shake image from Shutterstock.

The Trans Pacific Partnership (TPP) is a trade pact that would change the rules for investments and trade among its signers. It's currently in behind-closed-doors negotiation among 12 countries, including the United States, Australia, Canada, Japan, Mexico, and Singapore. Other countries could join later.

A recently leaked draft of the TPP gives investors from member nations the right to sue when a decision by a local government "interferes with distinct, reasonable investment-backed expectations."

Panels of private lawyers chosen by the investors and the federal government will meet to decide the suits. If the investors win, the federal government must reimburse them for the loss of future profits.

Critics of the TPP argue that it could gut environmental and health regulation. They point to the past history of trade agreements to back up that concern. The TPP's backers, on the other hand, assert that the treaty only bans arbitrary or discriminatory actions.

No matter who turns out to be right about that, the pact is likely to undermine local oversight of land use.

The TPP goes against the spirit of American land use law

Homeowners' power to influence development—what I call "suburban land tenure" in my book Dead Endis an entitlement that most people in the United States take for granted. But it is just the sort of local decision-making the TPP seeks to curb.

Trade treaties aim for decision-making that is stable, predictable, and rational. US land use regulation, on the other hand, bends to meet the often capricious desires of the neighbors. Local officials turn to hard-to-pin-down concepts like "compatibility" and "historic significance" to justify their responsiveness to constituents.

Whatever one thinks of this arrangement, its linguistic evasions are unlikely to satisfy panels of trade lawyers meeting thousands of miles away, under rules that don't even guarantee the local government the right to speak.

Consider this hypothetical case, which is also utterly routine: A foreign landowner proposes a new city building. Neighbors petition for a "historic" designation for the house now standing on the property, and the preservation board approves, blocking new construction. Meanwhile, there are no petitions or designations for nearby houses similar in age and architecture. Is the landowner entitled to compensation?

Or let's say the master plan for an area near a Maryland Metro station calls for 15-story buildings. The zoning allows such tall buildings only if the planning board approves the design; otherwise property owners are limited to three stories. A foreign landowner applies to build a 15-floor building, but neighbors protest against the height of the structures and the planning board cuts the size to nine floors. Will the landowner get the value of the square feet he wasn't allowed to build?

A lot depends on the treaty's details, but we aren't privy to those

It's hard to say exactly how the TPP would affect land use regulation in these and other cases. Wording for the agreement isn't final yet, and that will certainly influence how arbitrators rule in the future. But if Congress gives trade negotiators "fast track" authority, the public will have no say in what follows. Negotiations will stay behind closed doors, and Congress won't be able to change provisions it doesn't like.

Once the pact goes into effect, amendments will require a unanimous agreement from all the countries that signed.

Even after the TPP passes, it will take years for the legal issues to play out. What will happen then if foreign landowners are winning large financial payments from the federal government? Will foreign developers refuse all compromise with local zoning boards, knowing that rejection wins them the same profits as approval? Will the federal government interfere with local zoning decisions that could provoke a large payout? Will domestic builders demand the same rights as foreigners?

You don't have to be a fan of current land use practice to object to this transfer of power. All too often, zoning laws empower affluent minorities at the expense of the larger community. They outlaw the lively urban neighborhoods that more and more Americans want to live in.

The cure for these ills is more democracy, not less. Land use regulators should answer to the entire electorate, not to small groups of influential landowners and not to unaccountable tribunals that put the interests of big money ahead of the common good.

An interactive map will help make Fairfax more bike-friendly

Fairfax County wants to know how people bike to the county's transit stations. A new crowdsourced map lets cyclists tell them.


Fairfax County's interactive map. Image from Fairfax County.

People who frequently commute by bike are most likely to know the best routes to various transit stations. They're also likely to have ideas on how those routes could get better. Planners in Fairfax want this kind of firsthand knowledge so they can better know what to prioritize when it comes to adding bike lanes or installing signs that point cyclists in one direction or another.

The Wikimap lets users propose new routes, as well as point out and describe "problem locations." It's a good way for people to talk about barriers and obstacles to biking in Fairfax.

The map will be open for suggestions until June 30th.

To get Congress' attention, America says #StandUp4Transportation

On Thursday, transportation advocates around America gathered to send a message to Congress: Pass a new surface transportation bill, and fix the nearly-broke highway trust fund. Advocates used the hashtag #StandUp4Transportation to get the message out.

All over the US, public officials helped get out the message by riding transit:

Locally, Capital Bikeshare, VRE, and Alexandria's DASH bus got in on the action.

So did Montgomery County RideOn, which hosted local elected officials throughout the day, including Maryland Congressman John Sarbanes.

The existing federal surface transportation bill, MAP-21, expires on May 31, and unless Congress intervenes, the highway trust fund will run out of money in less than eight weeks.

Visit StandUp4Transportation.org to learn more, and to find out how you can help.

NIH says: Our scientists are too important to pay for parking or take transit

The National Institutes of Health (NIH) wants to expand at its Bethesda campus, but despite being on top of a Metro station, wants to build a lot more parking. Why is that necessary? NIH thinks its "high-ranking scientists" can't be asked to pay for parking or ride Metro in greater numbers like "regular people."

Sound unbelievable? Just listen to this:

The National Capital Planning Commission (NCPC) slapped down NIH at a meeting on April 2. NCPC has a policy defining how much parking is appropriate for federal facilities. At locations outside the core but right near Metro, like NIH, that level is one space per three employees.

NIH, however, currently offers one space per two employees. It wants to plan for 3,000 new employees and build new parking garages with 1,000 new spaces. That's 1:3 for the new employees, but doesn't bring NIH into compliance for the other employeees with NCPC's policy, which has been in place since 2004.

If, instead, NIH fully met NCPC's standard, it could remove 2,300 spaces even with the new employees, said Drew Morrison, aide to Councilmember Roger Berliner, who represents the area. Berliner and other local elected officials have asked NIH to meet NCPC's standard, so far to little effect.

Morrison said that the traffic from all the cars driving to NIH impedes economic development in downtown Bethesda. "Many property owners in downtown Bethesda are telling us right now that they can't attract new businesses to Bethesda precisely because of this traffic problem." Reducing parking and driving to NIH, Morrison said, would improve that situation.

At the meeting, Ricardo Herring, NIH's Director of Facilities Planning, repeatedly said that it was "impossible" for more NIH employees to get to work by transit. He said this is because many employees live in far-flung areas not near Metro (though he didn't really explain why driving to Metro parking, like at Shady Grove, is not an option).

Of course people drive if parking is free

However, NIH also offers free parking to every one of its employees and contractors. Small wonder that so many people drive when it's subsidized by their employer (and by Maryland, which has to pay for the roads).

Mina Wright of the General Services Administration pressed Herring on why NIH can't try charging for parking. Herring said that was tried in the Carter Administration, but "there was a major rebellion." Wright acknowledged that it might not be popular with everyone, but said that sometimes management has to do unpopular things.

Besides, it's not unreasonable to ask scientists of the National Institutes of Health to respect their impact on the health of people who live around them. Presidential appointee Elizabeth Ann Wright asked, "What does it say when we encourage our nation's top scientists to drive?"

Commissioners noted that the Bethesda Naval medical center, now called Walter Reed after the Army's facility on Georgia Avenue closed and moved in, is able to operate with a 1:3 ratio.

National Park Service representative Peter May said, "There are ways to achieve 1:3 at NIH. There is no doubt about it. Other agencies do it." NIH seems uninterested in trying.

Herring's dismissiveness irritated many commissioners, who ultimately voted to disapprove NIH's master plan. May said, "It seems apparent to me that the policy that NCPC has adopted and has been trying to communicate to NIH for ten years has not gotten through and not been communicated at high enough levels at NIH."

The board's recommendation is technically advisory, but chairman Preston Bryant pointed out that federal agencies rarely if ever directly flout NCPC's express will, and strongly urged NIH not to either.

Watch the juiciest 13 minutes of the video below, or the full thing here or by scrolling in the timeline. Watch Drew Morrison talk at 54:20, then Herring respond at 57:17, May at 1:01:25, and Wright bring up charging for parking at 1:02:42, which elicits some of the most jaw-dropping statements from Herring until 1:07:13 when they move on to talk about bollards.

Oh, and check out those graphics showing the Metro service at 9:46 near the start of the video. Where could they have gotten those from?

Vincent Orange would close DC's gates against younger and/or poorer residents

If you want to live in one of DC's row house neighborhoods but don't make a ton of money, a new bill by DC at-large councilmember Vincent Orange would slam the door in your face while it hastens gentrification and displacement of poor residents.


Photo by chefranden on Flickr.

In many parts of DC, property owners have added on top of their houses, creating what are called "pop-ups." Some are very tasteful, while some are ugly. Sometimes these let a family grow while staying in its house, while sometimes it goes along with splitting the house into a few apartments.

Other times, someone makes apartments in a house without adding on top, but perhaps adding in back or not adding on at all. Even when a house doesn't change externally, some neighbors don't like having a larger number of new people come into the neighborhood, perhaps younger or less wealthy. Vincent Orange wants those folks to vote for his reelection next year.

Today, he circulated "emergency" legislation called the Prohibition on Single Family Dwelling Conversions Emergency Amendment Act, along with a resolution on the issue. The bill would forbid any building permit "to increase the height, or otherwise convert an existing one-unit or 2-unit house, including a row house, into a multi-unit dwelling [of 3 or more units]."

DC's Office of Planning recently proposed, and the Zoning Commission approved, rules to limit height and numbers of units for the R-4, or moderate density row house, zones. Those rules aren't nearly so restrictive as what Orange wants—they let people still build three units in a house and add on to houses up to 35 feet.

Those rules also don't apply to the denser R-5 zones which have a mix of row houses and larger apartment buildings. Orange wants to forbid anyone from building onto their home in those areas as well.

This is exclusionary zoning

Orange's bill would turn most row house areas into exclusionary bastions open only to people who can afford a whole row house. He'd redline many potential residents out of large parts of the city, even ones where multi-family buildings have always been legal.

In testimony on the recent R-4 rules, resident Meredith Moldenhauer wrote,

I grew up in the District and following law school, my husband and I wished to return to DC. When my husband was a Lt. JG in the US Navy and I was a graduating law school student, we were fortunate enough to purchase a basement 800 square foot unit in a renovated three-unit townhouse. Later we moved to a larger condominium in an 8-unit building and, finally, purchased our current home in Capitol Hill. ... In hindsight, we could not have afforded a larger unit had the building been [fewer than three units]."

In our current location, the character of the community is created by the mix of families, Hill staffers, young professionals, and retirees. We love where we live ... The natural mix of permitted housing types in the R-4 creates the environment that attracted my husband and me to our current home.

Orange's bill doesn't contemplate neighborhoods like Moldenhauer's except the few that already exist. It would keep future people like her out of DC. By driving younger workers to live farther away it could even discourage new companies from starting in the District.

While Orange might be hoping to win some favor with residents concerned about gentrification in their neighborhoods, if he doesn't drive jobs out of DC he might in fact speed it up. By limiting the amount of new housing that can be created in the already-expensive row house neighborhoods, he would force more people to buy a bigger row house in a cheaper area versus a smaller apartment in a pricier one.

The singles and young couples seeking smaller apartments would also outbid poorer residents in many changing areas if Orange succeeds in slashing the number of those smaller apartments the can be built.

It's illegal

Of course, the bill probably won't pass. Even if nine councilmembers believed this constituted an "emergency," Orange's bill very likely illegal. DC's Home Rule Act creates a Zoning Commission with three representatives appointed by the mayor and two from the federal government. That body, it says, "shall exercise all the powers and perform all the duties with respect to zoning in the District as provided by law." (§492(a)(1)(e))

That means that the DC Council can't make zoning policy. And telling DC's Department of Consumer and Regulatory Affairs, which issues building permits, that it's illegal to give a building permit for a project that's legal under zoning but not under Orange Alternate Zoning would be overstepping the council's authority.

DCRA spokesperson Matt Orlins confirmed this made a related point in a statement to the Washington Post, saying, "If a proposed project complies with the Zoning Regulations and Construction Codes, DCRA does not have discretion to disapprove it. The Zoning Regulations ... are written by the Zoning Commission, an independent body." Clarification: Orlins was talking about DCRA's ability to impose a moratorium on its own, not about council action, but it seems likely courts would not allow the council to take this action either.

But Orange got to make a statement. If you're a young person who doesn't own or can't afford a whole rowhouse, Orange doesn't want you. If you're a poor resident, Orange doesn't care about you. If you want your neighborhood to never change at all, Orange wants your vote, and he'll propose illegal legislation that will harm the District to get it.

Budget cuts in Alexandria would delay more Capital Bikeshare stations

Alexandria's plans to expand Capital Bikeshare next year are on the chopping block in the city's proposed FY2016 budget.


Photo by Euan Fisk on Flickr.

The cut will save the city an estimated $150,000 in operating costs up front. But cutting the operating budget will be particularly harmful to Alexandria's Capital Bikeshare because it limits the program's access to capital funds, which don't come out the city's belt-tightened general fund.

Through federal and other grants, Alexandria has access to $700,000 in capital funds for up to 16 new Capital Bikeshare stations.

But in order to use those funds, the city must dedicate the operating dollars to run the new stations, and it's those expanded operating funds that have been cut from the general fund budget. So instead of spending the capital funding this year, the city plans to set aside some of the $700,000, and spend some of it elsewhere.

Approximately $200,000 of the capital funding is from developers, and has been earmarked for Capital Bikeshare stations as part of community amenities negotiated by the city in development deals.

If not spent on bikesharing this year, those dollars might go to fill budget holes in other developer-funded projects instead, getting spent on other amenities, such as pocket parks and walking trails rather than Bikeshare.

Expanding Capital Bikeshare in Alexandria makes sense

Parks and walking paths are great, but Capital Bikeshare is actually a very sound investment for Alexandria. Bikeshare in Alexandria has a 70% cost recovery, compared to about 30% for a typical bus system. And that number could be higher if the potential demand were met: in DC, cost recovery is almost 100%. Fees from the system have exceeded expectations in Alexandria this year, producing an estimated $59,000 surplus for 2014-15.

According to Alexandria transportation planners, bikesharing operations cost about $10,000 per station, meaning that surplus could be used to operate six more stations in the jurisdiction next year.

The city's 16 current stations only sparely cover the flat, very bikeable geography that includes Del Ray, Old Town, Potomac Greens and Carlyle. Arlandria, Lynhaven, Potomac Yard, Rosemont, and South Old Town have no stations at all yet.


Alexandria Bikeshare station demand map. Image from Capital Bikeshare.

In Del Ray alone, obvious station locations are at Commonwealth and Mount Vernon, Commonwealth and Monroe, and Mount Vernon and Alexandria. They include restaurants, a library, a community center, and concentrations of apartments.

Economically, expanding Capital Bikeshare is a good idea because the program brings tourism to Alexandria. Old Town is an appealing destination to tourists who have already paid for a membership in DC, and who want to ride on the world-famous Mount Vernon Trail. Even before there were stations in Old Town, people visited on Bikeshare bikes.

With bikesharing fully available in Alexandria, users can shop and eat at Alexandria businesses. Moreover, Alexandria gets a portion of their user fees. Having only one station on the Alexandria waterfront is, to put it simply, leaving money on the table.

Even with supplier problems, the expansion should be able to move forward

When Alexandria recently expanded from eight bikeshare stations to 16, there were delays because of problems with the bike supplier. Public Bike System Company, popularly known as Bixi, went bankrupt in January 2014 but was purchased by Montreal businessman Bruno Rodi last April.

The bankruptcy delayed Alexandria's last system expansion until August 2014. The expansion order was filled eventually, in part using refurbished equipment that became available as other Bixi customers returned or upgraded equipment.

It's unclear whether or not Bixi is still having supply problems, but Alexandria Bicycle and Pedestrian Advisory Committee (BPAC) chair Jim Durham said Alexandria should "fund the full 16-station bikeshare expansion planned for next year," possibly with refurbished equipment.

When he first introduced Bikeshare's arrival in Alexandria, Mayor William Euille talked about how much resident support the program had. More resident feedback, this time to let Alexandria know that money that's available for bikeshare shouldn't go to waste, could certainly help keep the program moving forward in advance of the City Council discussion of its transportation budget this Thursday.

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