Small theater group runs afoul of zoning rules

Arts

Small theater group runs afoul of zoning rules

by David Alpert and Geoff Hatchard • April 25, 2012 10:59 am

Small theater company Pinky Swear Productions got some very sudden and frightening news yesterday: Their show Killing Women, which opened in a Dupont church basement on Saturday, may have to suddenly find a new location, as the zoning regulations prohibit theater in that space.

Update: Pinky Swear says they've gotten permission to finish the run of their show and won't have to move.

A resident complained about the production, and zoning officials said that the church, at 16th and S Streets NW, would need a zoning variance to hold performances, according to Andrew Huff in Councilmember Jack Evans' office. DCRA sent an inspector this morning to review the issue; we will report the results when they are available.

Fortunately, Capital Fringe has offered space at 6th and New York Avenue NW if Killing Women has to leave the church, though moving will surely harm Pinky Swear financially. According to co-artistic director Karen Lange, the set won't fit in the new space, moving would force them to cancel a few shows, cost more money for lighting rental, and more.

According to Lange, Pinky Swear is renting the space from Spooky Action Theater, which has a lease for the basement. A resident who lives nearby notes that Spooky Action hasn't been holding productions in the church for a while, which is why this issue is just arising now. Also, he said that the theater groups have been using the narrow alley, adjacent to homes, as the entrance rather than the front door of the church on 16th Street.

The policy question here is, are our zoning rules too restrictive?

On the one hand, zoning creates some predictability. Residents right near the church know to expect a lot of activity on Sunday mornings but not nighttime performances. Audiences coming out of theaters can sometimes be noisy, and could disturb people. That's especially true if they're using a back door adjacent to homes rather than a front door.

On the other hand, having more arts events contributes to a much richer city. Groups like Pinky Swear are small, have little money, and can't afford spaces in places like downtown. Established theaters have theater companies that already use those spaces most of the time. If our zoning keeps the arts corralled into a very narrow range of opportunities, that limits it tremendously, especially for young and emerging artists.

Any zoning changes take tremendous time and money. A developer of a large building can afford to do this, but a small theater company or church can't possibly do it just to put on a play.

There are significant parallels between this case and the recent regulatory disputes around secondhand stores and the car service Uber.

Uber was doing something new and innovative which the existing regulations didn't precisely predict. Their model might or might not have been legal under the regulations, depending how you interpret it. The Taxicab Commission decided that they were breaking the rules, and came down hard.

Used bookstores, vintage clothing shops, and more operated for years under a general retail license, but recently DC officials determined that they actually have to use a different license that mainly covered pawn shops. That license is much more expensive, and requires far more detailed reporting requirements, which made sense for pawn shops to avoid stolen merchandise but is less applicable to stores which buy used goods from distant wholesalers.

In all 3 cases, one can make a case that DC needs to enforce the rules as written. Should we really turn a blind eye to unlawful behavior? If so, how do we decide which unlawful behavior to ignore?

On the other hand, bending zoning rules has sometimes brought tremendously positive results. In many of the warehouse districts of older industrial cities, for instance, revitalization began when people moved into the vacant spaces and started living there. Often, though, they weren't zoned for residential. As New York's Soho became a popular loft space, for many years all of the residents were breaking the zoning rules.

In this case, the zoning code could be more permissive toward arts uses. Arts performance could be one of the "corner store" type uses that can locate in residential zones subject to various restrictions, as I previously suggested. The new code could also allow arts uses in residential zones under a "special exception" rather than a variance, which still requires a long and complex process before the Board of Zoning Adjustment, but lets the BZA grant permission more easily.

For cities to thrive, neighborhoods need to evolve as the desires of their residents changes over time. Zoning can rarely keep up. The best thing we can do is err on the side of more flexibility and fewer regulations.

30 comments

Tags: arts, DC, Dupont Circle, zoning

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Is DC's zoning update "too timid"? (Feb 9, 2012)
Streetscape-draining front parking lots may soon be out (Jan 19, 2011)
Tune up DC's tax system: Theater tickets (Jul 10, 2009)

David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington and Greater Greater Education. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater.

Geoff Hatchard is a geographer working for the U.S. Census Bureau. He lives in DC's Trinidad neighborhood. The opinions and views expressed in Geoff's writing on this blog are his, and do not necessarily represent the views of his employer.

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Thank you so much for writing about this. We really appreciate that people care about what happens to small theater companies. The sad part? We don't even get more than 10 or 12 people most nights. So this complaint is about very small crowds that couldn't possibly make the kind of noise or bother. It's hard to get audiences at all, and this problem just makes it all the harder.

by klange on Apr 25, 2012 11:21 am • link • report

I do find it odd, that a person who lives in an area between Adams Morgan, Dupont, & U st, all of which with thriving bar scenes, is complaining about the noise of a theatre that seats less than 50 people. Also the theatre showings generally get out between 930pm and 10pm. I've been around when the shows have let out, and can vouch that there is much less noise from the attendees of these shows, than from the drunks stumbling from the bars.

by CHolland on Apr 25, 2012 11:37 am • link • report

Not only all this, but a church, of all places, ought to share zoning with a theater. Often a church will meet in a movie theater or some other converted space, and church buildings are well-suited to theatrical use. In a world of shrinking church attendance, this is vital to maintaining some of the city's best architecture. A church ought to be allowed to rent its space for performances (whether a wedding or a play) to pay the bills, and a theater company ought to be able to own a church for its own performances.

Besides, churches don't always meet on Sunday mornings. My own meets Sunday evening, as do a number of others I know. Catholic churches have services every night and though it's the Sunday Mass that tends to bring the crowds it may not always be true.

My point is, the zoning code should be flexible enough to allow for reasonable re-use, especially for similar or less-disruptive activities.

by OctaviusIII on Apr 25, 2012 12:30 pm • link • report

Its unfortunate that it got to this, but looking up the zoning is not that difficult. As the landlord, the church should have been aware of what was permissible in its space, and the tenant should have done a little more background due diligence. I hate most zoning too, but it seems that some parties were just very lax in this case.

by spookiness on Apr 25, 2012 12:32 pm • link • report

As a member of Universalist National Memorial, where the theatre is located, and as someone who has gone to several theatre performances there, I can't even begin to describe how ridiculous it is to complain about the noise from these shows.

The shows I've attended have never been anything other than respectful towards the neighborhood, and people have always complied when asked not to congregate by the back entrance so as to upset neighbors. A complaint about this just strikes me as incredibly petty.

by Jim Ed on Apr 25, 2012 12:33 pm • link • report

@Jim Ed

The problem isn't the complaint - people will complain about anything.

The problem is the regulations that give the complaint teeth. Zoning shouldn't be this fine grained about use.

by Alex B. on Apr 25, 2012 12:57 pm • link • report

@Alex B -- This is not a simple situation. You let a church have plays -- selling tickets and attracting large crowds -- and then they can all sorts of performances. Where does it end? For example one church had hip hop parties. Not saying this is a bad thing, but I wonder what the neighbors think. Most churches are in quiet residential neighborhoods, and their neighbors did not expect to live next to an entertainment venue.

There is a slippery slope here and I think this is very tricky. What is lacking is judgement -- this case does should not bother anybody, as far as I can tell.

by goldfish on Apr 25, 2012 1:05 pm • link • report

@spookiness: When you sublease from a subletter, you expect that everything will be in the clear. I will be asking about things like this in the future. I think there wouldn't have been any brouhaha if the neighbor hadn't complained, as I believe SA and the church have been on the up & up with their usage.

I honestly do not have any knowledge of how things work, zoning wise, as I don't own a building or lease anything in DC.

by klange on Apr 25, 2012 1:12 pm • link • report

@goldfish: the sad thing is that small theater companies like ours don't attract large crowds. We had one crowd of about 40 on Saturday night, none of whom stood in the alley because of the pouring rain. We are lucky to get 10 people on most nights. They are not required to wait outside, so there really isn't any hubbub in the alley at all. Just people walking in, opening a door, closing it. That's it.

The space only holds about 60 people to begin with, so it would never be a rave or anything outside.

Small theaters would love to have the problem of large crowds, but we don't.

by klange on Apr 25, 2012 1:15 pm • link • report

@goldfish
A whole lot of churches aren't quiet in the least. Mount Vernon Square's UHOP church does parade rehearsals outside their walls - hardly a quiet proposition. When it does have services (every night until around 11pm and Sunday morning 9-12) it's loud enough that you can hear it outside. It also has a youth group on Wednesday night. All of these attract large crowds that, for the night services, are frequently out until midnight.

On top of the above, they operate a restaurant out of their basement and I've started seeing a barbeque tent every so often on their patio. Yet UHOP is not alone in any of these kinds of activity.

If such disruptive use is allowed by a church under the zoning code I cannot see how even a hip hop performance would be more disruptive.

by OctaviusIII on Apr 25, 2012 1:19 pm • link • report

goldfish,

I'm not saying those activities shouldn't be regulated. I am saying the zoning code is not the place to do it.

If they're noisy, we have noise ordinances. If the crowds are too big, we have fire code capacities that can be enforced. There are plenty of other regulations that govern hours of operation, etc.

I'm not even going to touch on what the functional difference is between a church service and an entertainment event.

by Alex B. on Apr 25, 2012 1:21 pm • link • report

@klange -- While I have not seen your show, I presume that it is not an issue for the neighborhood. I wish you only success and larger crowds (regardless of where you perform).

The problem is that while it is reasonable for a church to have small gatherings for shows and other events, how should the law be written to allow this while also preventing large and/or disruptive ones?

by goldfish on Apr 25, 2012 1:29 pm • link • report

If they're noisy, we have noise ordinances. If the crowds are too big, we have fire code capacities that can be enforced. There are plenty of other regulations that govern hours of operation, etc.

Those are "after the fact" laws that come into force only after something has gotten out of hand. Question: church plans large disruptive event; it clear to most neighbors that it will cause problems and the event should be moved elsewhere. What can the neighbors do about it if it is not in the zoning?

not even going to touch on what the functional difference is between a church service and an entertainment event.

Thought of that too, and aside from the purity of heart of the audience, I do not think there is any difference.

by goldfish on Apr 25, 2012 1:36 pm • link • report

@goldfish The problem is that while it is reasonable for a church to have small gatherings for shows and other events, how should the law be written to allow this while also preventing large and/or disruptive ones?

You're bringing up a good point. Last month the theater sublet to an a group that used the full 200 seat capacity of the theater.

http://plancast.com/p/3wr1/v-day-presents-eve-enslers-vagina-monologues

Last summer Capital Fringe was held here ... 3 shows a day, 6 days a week. They were even selling t-shirts in the alley!

by Lance on Apr 25, 2012 1:37 pm • link • report

goldfish, I think Alex adequately addressed that. We have noise ordinances that kick in at 10 PM, fire codes, and other laws that can allow valuable activities (for both the community and the venue) to take place without creating wholesale mayhem. If these laws prove inadequate, we can change them to better protect the peace of the community, rather than outright banning everything but church services.

by Ms. D on Apr 25, 2012 1:46 pm • link • report

@Ms D -- the noise laws and fire codes only kick in after the event, after the neighbors have lived with the consequences. They do not enable them to head off a looming disaster.

by goldfish on Apr 25, 2012 1:51 pm • link • report

Okay, goldfish, what about permitting requirements? We could establish a system where if a church (or other venue) wanted to hold an event that is outside its stated scope of operations, they have to get a permit that specifies the type of event, hours, and maximum attendance...that moves noise ordinance compliance (type of event and hours) and fire codes (attendance) to the front of the process instead of the back. It's no harder to enforce that than zoning (while stated up front, violations can only be enforced in reactionary ways, like any other law), and would be easier to obtain than a zoning variance.

by Ms. D on Apr 25, 2012 1:52 pm • link • report

I really am confused. What zone can small theater troops perform in? Some of these older churches in D.C. can seat 200+ people in the sanctuary and there is nothing to say a church can't hold a function every day of the week two times a day. How is the theater company more disruptive than a large funeral mass or even a three day church revival? If the church wanted to put on a production of "Jesus Christ Superstar" how would it be any different? It it was church members doing the same thing vs a professional group? It's even more troublesome because on sites like DC Space Finder there is nothing there to remind people to check zoning regulations for performances. http://www.dcspacefinder.org/

by MiCoBa on Apr 25, 2012 1:53 pm • link • report

@Ms. D
To ammend your permit concept, it ought to be a variance from pre-approved uses granted for church services. If they want to have a rock band play during the church service, that should to be okay.

by OctaviusIII on Apr 25, 2012 1:55 pm • link • report

@Ms D -- permitting for small events is unduly burdensome. It is unreasonable to expect a church to send somebody down to get permit every time they want to host an Alcoholics Anonymous meeting, for example. I expect that in this case, it is unreasonable for the church to get a permit for a show that only has 10 people in the audience. But otoh, what if the show sells out? (I imagine that the publicity here will help).

Again, judgement is the nut of the issue.

by goldfish on Apr 25, 2012 2:00 pm • link • report

Here's a description of the space being sublet:

"The space is located in the lower level auditorium of The Universalist National Memorial Church. By providing HVAC, acoustic ceiling treatments and acoustic wall units, in addition to theater lighting, sound system and flexible audience seating risers, Spooky Action is creating a space that can accommodate a variety of events – from intimate theater performances to meetings or receptions for over 200 guests."

www.theatreindc.com/theatredetail.php?theatreID=65

by Lance on Apr 25, 2012 2:17 pm • link • report

@Lance - the theater itself has a capacity of 65-70 in the seating area. If they were to use the entire basement area, half of which is outside the modular theater, they could fit that many. I think the 200 limit is more accurate for receptions.

That said, I dearly wish I had the problem of cramming 200 people in.

by klange on Apr 25, 2012 2:21 pm • link • report

Given the prevailing fear of touching churches on anything land-use-related, thanks to RLUIPA, it's hard to understand how zoning laws might have even the slightest effect on a church's worship or outreach activities.

by David R. on Apr 25, 2012 3:04 pm • link • report

Ok, goldfish, so what is your solution? You want the zoning rule because it's "up front" (even though enforcement of violations is inherently after the fact), but you don't want to require permits, and you don't think noise ordinances and fire codes are adequate. So, they shouldn't be able to do anything but religious services? That's the end result of your arguments here.

by Ms. D on Apr 25, 2012 9:08 pm • link • report

@Ms D, I think you have confused my point with other peoples' -- all I have been discussing is that this is a tricky situation. I do not have a solution -- I agree that for the most part, a church should be expected to have small gatherings which should not require permits, but a tripping point occurs when the crowd gets large and when it happens repeatedly. My point is that it is very difficult to spell that out in law.

Enforcement of violations is also tricky. For example, neighbors will tolerate an event that happens once, but for something that recurs and is intolerably large or presents some other difficulty, it should be possible to stop it -- such as a performance that runs every night for some weeks. But I do not think noise ordinances or the fire code are the proper law to apply to stop such an event.

by goldfish on Apr 26, 2012 8:06 am • link • report

@Goldfish

My point is that it is very difficult to spell that out in law.

Yes, it is. Therefore, if there isn't a nuisance, then it shouldn't be spelled out in the law at all.

If there is a nuisance, we have nuisance laws to deal with it.

But I do not think noise ordinances or the fire code are the proper law to apply to stop such an event.

If a nuisance law like a noise ordinance is not the proper method to address nuisance, then why in the world is the zoning code a better method?

The larger point about this being a church is that the zoning code wouldn't be able to address those nuisances if they were caused by a religious service rather than a play. I would argue that there's no functional difference between the two.

by Alex B. on Apr 26, 2012 10:22 am • link • report

@Alex B, The larger point about this being a church is that the zoning code wouldn't be able to address those nuisances if they were caused by a religious service rather than a play.

If it were a religious service vs. a play, they'd be using the front door and large 'plaza' outside of it to congregate and chat and smoke as crowds attending a performance are apt to do before, between, and after performances ... and there wouldn't be a problem here.

Like Goldfish pointed out neighors will tolerate the one off problem. It's the recurring issues that they won't ... and this place is not only offering its own limited and infrequent engagements as was claimed, but is actually subletting the space. This makes it "something that recurs and is intolerably large or presents some other difficulty," as Goldfish so aptly put it. We're talking about a 10 foot wide alley in a residential zone in a block otherwise occupied by residences. Properly zoned, for instance were a variance granted, would require that the front door of the building be used and not the back service entrance. And that's where the importance of zoning comes in. It can ensure these exceptions where granted are done properly and not in a manner that intrudes on the rights of others.

by Lance on Apr 26, 2012 12:01 pm • link • report

Would they? What if their religion suddenly had a change in doctrine that forbade the use of front doors as a sin?

In that case, there would be no difference between the church service and the play - but the nuisance would be the same. That's my point.

by Alex B. on Apr 26, 2012 12:14 pm • link • report

Orthdox Judaism bans driving on the sabbath, and Conservative Judaism discourages it (some synagogues more strongly than others) but AFAIK no jurisdiction relaxes minimum parking requirements for them (of course there are sunday schools, but still)

by Speaking of Sins on Apr 26, 2012 12:39 pm • link • report

@Alex "Would they? What if their religion suddenly had a change in doctrine that forbade the use of front doors as a sin?

Funny you should mention that. Back when I was an ANC Commissioner in Sheridan-Kalorama (and serving on the neighborhood's historic preservation review committee)we had a situation where the Catholic Archbishop moved his residence to the top floors of a (former) Catholic School. The back of the school had a large parking lot with a single gated entrance through a historic brick church wall fronting the alley. Apparently, Catholic doctrine mandates that a bishop's residence be separate from any local parish. (The former school was serving as a church as well as other class room functions.) This argument was being used to justify tearing down the historic wall which the community opposed. (The parking lot would have been split in two with one serving the bishop's residence and the other the school building ... each with its own separate gate to the alley. The residence had a doorway on the 1st floor with separate stairway inside.) To solve this dilema I can up with a solution that entailed keeping the existing gate and creating a 'street' inside the walled area where people going to the residence would proceed to a second separate gate, while those going to the church/school proceed to a third gate. Each had their own residence, historic wall survived, problem was solved. (The rest of the story though is that the developer didn't get the gist of why the wall was being spared ... and replaced it with a similar newer version during the redevelopment of the building to put in the Bishop's apartments .... but with a single gate.)

by Lance on Apr 26, 2012 12:42 pm • link • report