Greater Greater Washington

Ensuring retail and residential diversity in zoning

The DC Office of Planning routinely posts their reports on zoning variance requests. This week, they recommended against approving two requests concerning tricky zoning issues: multifamily conversions and corner stores. Many neighborhoods have numerous townhouses divided into multiple apartments, and many have corner stores in residential districts. Creating new ones, however, requires a variance. Should we be doing more to encourage, or at least allow, these changes?


Low- and moderate-density residential zones in DC. R-4 zones are in purple.

Both requests apply to properties in R-4 districts. DC's zoning contains several residential zone types: R-1-A and R-1-B for single-family detached districts; R-2 for districts comprising mostly semi-detached homes, where pairs of houses share one wall; R-3 and R-4 for predominantly single-family neighborhoods which include row houses, with R-3 requiring larger lots; and R-5 (-A through -E) for "general residential" including apartment buildings and all other types.

This map shows the current residential zones up to R-5-B, the predominant residential zoning in neighborhoods like Dupont Circle, Adams Morgan, Logan Circle, and the area north of U Street. Both of these cases occur in R-4 zones, which include Shaw, Columbia Heights, Mount Pleasant, Bloomingdale, H Street, and Capitol Hill.

In one case, a property owner in Petworth wants to convert a three-story row house into three separate apartments. The local ANC has endorsed this change, as have several surrounding neighbors, but OP recommends denial under the zoning regulations.

R-4 districts allow conversions as long as the lot size exceeds 2,700 square feet per unit 900 square feet per unit, or 2,700 for a three-unit building. Most lots, including this one, aren't big enough for three or more units under those rules. The typical townhouse in an R-5, where there's no minimum lot size for a converstion, wouldn't be large enough either under the R-4 rules).

It's valuable to preserve a certain number of whole houses for families. However, we shouldn't segregate all of those single-family homes into neighborhoods with nothing else. Many neighborhoods benefit from a mix of families, singles and couples, ages and income levels. By prohibiting apartments in some of the houses in neighborhoods like Petworth, we deprive them of residential diversity. They also can't grow in population, making most retail unprofitable in these neighborhoods and forcing residents to drive to meet many everyday needs.

Perhaps the zoning regulations ought not allow conversions anywhere as of right, but the variance test is too strict. The application must demonstrate "specific uniqueness" in the property and an "excptional hardship" upon the owner, meaning an average building on an average block couldn't qualify for the variance.

Also, the relief must not "substantially impair the intent, purpose, and integrity of the zone plan." According to OP, "The purpose of the R4 district is to stabilize low-density, single-family residential areas by allowing new construction of single-family and two-unit buildings." But in neighborhoods like Petworth with three- and four-story row houses, a combination of some single-family buildings, some two-unit buildings, and some three- or four-unit buildngs adds diversity. The Kalorama Triangle neighborhood has a nice mix of housing types despite being an R-5-B, for example.

The second case concerns a grocery store at 1403 6th Street in Shaw. This isn't the best example of a grocery store case, because the owner wants to move an existing grocery store from an adjacent building rather than establishing a new one. Also, according to OP, the applicant hadn't adequately explained his hours of operation or how he will handle trash or deliveries.

We should allow small grocery stores in residential districts, provided they take appropriate steps to handle noise and trash. This particular application may not have taken those steps. Still, the burden required for a "use variance" is again too great. The grocer must do far more than simply show he's minimized the impacts. An average building on an average corner wouldn't have "specific uniqueness" and "excptional hardship".

Also, the variance must not impose "substantial detriment to the public good", which this OP report equates to "could have negative impacts on nearby properties." A grocery store would most likely have some negative impacts, but the positive impacts on the surrounding residents of having convenient access to groceries might outweigh that in many cases.

Finally, according to the OP report, "The Regulations are intended to protect purely residential areas from encroachment by non-residential uses. The application goes against that intent by proposing a retail store in the residential R-4 zone." This may be true under current zoning, but we should change it. It's not bad for residential uses to include the occasional grocery store, and our new zoning rules should allow that.

Some readers would prefer to abolish these restrictions and let free markets decide what to do with these properties. Other people want to keep the zoning regulations and our neighborhoods just as they are. At the residential and historic zoning meetings, some advocated for rules to make corner stores even scarcer and to disallow multifamily conversions altogether in some areas, even on the large lots that qualify today.

We should strive for a balance. Our zoning rules should allow a greater diversity of uses, with some corner stores in residential zones and a mix of single-family and multifamily buildings, especially when the community supports the change. Rules that require review but set a lower bar, such as under a "special exception", could fit the bill and maintain a good stock of single-family homes while also helping our city grow, provide adequate housing choices to households of all sizes and all income levels, and strengthen our neighborhood businesses.

David Alpert is the founder and editor-in-chief of Greater Greater Washington. 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 now lives with his wife and daughter in Dupont Circle. 

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as i heard in my schooling days: 'the highest and best use.' meaning that usually the market does the right thing. but sprawl and big box stores are exceptions in my book.

the way i see it, adding units a to few houses is a good thing. like David says, a diverse neighborhood is good. i think that the review process should be there to keep out unwanted developments, like a nightclub in a residential area, but should allow for exceptions like grocers, some restaurants, and certainly a few apartment conversions. after all, if you let too many convert, you alter the character rather than enhance it.

call me moderate. zoning is there for a reason, and so are variances.

by dano on Jan 29, 2009 3:33 pm • linkreport

An oversight board? Really? Doesn't our country/city/whole freaking world have enough bureaucracy already? Doesn't that take micromanaging a little too far?

Is it really right to force that petworth resident to go begging, hat in hand, to a board of overlords dictating what he is allowed to do with a piece of property THAT HE OWNS.

(how's the drama in that image?)

by mafiosa on Jan 29, 2009 4:21 pm • linkreport

I admit I don't know the best way to handle it.

It's difficult, legally, to use variances for more than what they've been used for in the past. They were created originally to prevent zoning from being unconstitutional. Their language requiring "unique" or "undue" hardships is specifically crafted to prevent unconstitutional takings while *not* rising to unconstitutional discrimination. It can be a tough balance.

Virginia just went through such a battle this past year, where variances were being granted for more than just unique or undue hardships, and the Supreme Court found granting them to be unconstitutional discrimination (or violations of equal protection).

When you provide a lot of discretion to a board of citizens to determine uses on a parcel-by-parcel basis without clear, objective (almost scorable) guidelines, it provides a basis for either spurned landowners or angry neighbors to sue.

That's why variances aren't really the way to do it. If there's going to be regulation, it needs to be defined in advance, as clearly as possible. One way to provide for food stores in residential areas but with objective guidelines would be to allow them with the limitations similar to the following:

(1) Only on corner lots

(2) No more than 1500 sf sales area per store

(3) No more than one per square block

(4) Loading only from 10am-7pm with small trucks

With those kinds of standards in place, it would inch our way into allowing more than there is now (remember, baby steps are needed because of NIMBYs), but without risking unconstitutional discrimination.

by Joey on Jan 29, 2009 4:39 pm • linkreport

I absolutely believe we need variety in residential zoning. Hopefully, as the city's schools improve and as D.C. creates better, walkable, neighborhoods for families we will find ourselves with a dearth of single-family homes. While families don't need to live in single-family homes, per se, much of the apartments and condos being built in D.C. are essentially 1 and 2-bedroom spaces that are being built and marketed specifically for singles and young couples. D.C. is a very diverse community and it should remain so.

by Adam on Jan 29, 2009 4:58 pm • linkreport

Great post! Preserving corner stores is essential. Stores like Timor Bodega in Bloomingdale can be critical amenities in areas that lack walkable grocery stores.

I don't think corner stores should be converted to residential and then rezoned as residential only. It should always remain an option to rezone it as commercial.

by SG on Jan 29, 2009 5:09 pm • linkreport

"Loading only from 10am-7pm with small trucks"

Joey, As I said earlier, zoning regulations do not control the size of the trucks that can service any property. I take it that you didn't go back and read the regulations, transcripts and legislation.

And, of course, you are missing the point entirely, or perhaps, like David, you aren't really familiar with DC's neighborhoods. There are neighborhood commercial zones near most residential neighborhoods in DC, so David's proposal is unnecessary and probably harmful inasmuch as for many areas, it could detract from viability of the commercial districts.

by JR on Jan 29, 2009 5:09 pm • linkreport

"They also can't grow in population, making most retail unprofitable in these neighborhoods and forcing residents to drive to meet many everyday needs. "

This argument strikes me as off for the simple reason that many residential buildings were converted to retail (corner stores, mid-block stores, etc) prior to the implementation of zoning in DC- presumably prior to the 1970's. If there was enough density in those neighborhoods then, why not now?

by mark on Jan 29, 2009 5:22 pm • linkreport

The average household size was a lot larger then, and so we had more people in the same number of dwelling units. There were, therefore, more people to patronize the stores.

To get back to the historical population, we need to allow some proportion of the larger single-family units to split up into smaller units. Where once a house held a family of 5, maybe today we should let a family of 3 and an unrelated couple share the home, for example.

Also, back then people didn't shop on the Internet and there weren't as many or as large regional shopping destinations drawing dollars away from the neighborhood main street.

by David Alpert on Jan 29, 2009 5:27 pm • linkreport

David, Just wondering what you mean by "back then". When our historic homes were built? When zoning was put into place in the 50s?

Lots of our single family rowhouses were built before zoning came about ... and as such whether they were single family or multifamily never really came up. Prior to zoning there wasn't a reason for it to come up. For example, when our houses were built, it was commom for boarders as well as extended family members to live in the same house. Sometimes there was only 1 "family member" (i.e., the owner) and lots of boarders. The reason the houses were designed as they were, with lots of rooms with closable doors was so that different rooms could serve flexible uses. What was a bedroom for a family member one year might be a living/bedroom for a boader a year later. Typically, the only room that had a reserved use was the back basement room ... this was the kitchen. (It needed to be near the back yard.) And I think there was a dining room too since the boarders needed a place to eat. But as time went by, while the concept stayed the same, the houses often became "apartmentized" as people wanted their own kitchens. For example, at the time my home got its first renovation into a single family home in the mid 60s, it had 3 kitchens ... the original one in the basement, one built in the enclosed sleeping porch on the main level and one built into the sleeping porch on the 2nd floor. I guess each floor had become its own apartment. Prior to zoning buildings and spaces were fungible in regards to single/multi-family use as well as in regards to residential vs. commercial.

by Lance on Jan 29, 2009 7:25 pm • linkreport

btw, I wasn't disagreeing with you when you say that more people lived in the same houses ... that's true. But they weren't necessarily bigger families. From the start these were for the most part what we would today call "multi-family housing." Even in the larger "townhouses" (vs. the rowhouses), you would have had quarters for the staff.

by Lance on Jan 29, 2009 7:35 pm • linkreport

DC Zoning regulations chapter 22 deals with loading requirements which indirectly specifies the minimum size of trucks servicing business. For each business it lists what length loading space is needed for each type of business. They say the depth of the loading bay required, which sets what size of truck can service the location.

http://dcoz.dc.gov/info/reg/chapter22_pdf.shtm

It currently only lists a minimum, they could additionally specify a maximum as well, thus limiting what kind of trucks can service a business.

Also in 2204.13 part E:

The Board may impose conditions as to screening, lighting, coping, setbacks, fences, the location of entrances and exits, widen of abutting alleys, or any other requirement it deems necessary to protect adjacent or nearby property and to promote the public health, safety, and welfare.

by Erik on Jan 29, 2009 10:29 pm • linkreport

Generally, in my experience, OP takes a pretty tough line when it comes to variances. Their main interest is avoiding "spot zoning," the de facto re-zoning of a particular parcel through the variance process. BZA, on the other hand, takes a more balanced view, especially when it comes to non-controversial area variances. BZA tends to interpret the "uniqueness" and "practical difficulty" standards--two vital tests for a variance--pretty broadly, mostly as a consequence of the case law in Gilmartin v. DC. Still, BZA relief is only open to those with the time and money to go through, at minimum, a 5-6 month process. Again, here I'm speaking of area variances, not use variances.

As for the corner stores, most of the existing ones are grandfathered (pre-existing the 1956 Zoning Code) and are not allowed as a matter of right in the residential zones. Again, a consequence of that date and age, when corner markets were considered "sub-standard" and were supposed to wither away in favor of supermarkets.

My personal opinion is that zoning is a dinosaur, a blunt instrument for "fixing" the ills of the nineteenth-century industrial city. Mission accomplished. Most of the energy and vitality of traditional cities exists in spite of latter-day zoning, not because of it. Yet to be seen is what the latest re-vamping of 1956 code (basically a suburban document) will bring. More diversity and variety of residential building types, I hope. I don't have much hope that one of my pet peeves, legal conversion of garages, alley dwellings and carriage houses into more than "artist's studios" will ever see the light of day. A great deal of "affordable housing" vanished when construction or conversion of alley dwellings was outlawed. Many alley dwellings were squalid back in the day, to be sure, but their small size would be much prized these days for people of more modest means.

by Paul on Jan 29, 2009 10:36 pm • linkreport

Can't agree with Paul's last paragraph more. Shredding maybe 90% of the zoning restrictions, and starting from that point to try and fix whatever specific problems are created, seems like a much more beneficial solution to guiding development than trying to adapt instruments created to 'reform' the ills of city life fifty to a hundred years ago.

by Squalish on Jan 29, 2009 11:06 pm • linkreport

@Paul/Squalish: I very much agree as well that it'd be better to start fresh and considerably reduce the restrictiveness. My biggest worry, though, would be that, when you start from scratch, so many different interest groups have so many wildly differing requests/opinions, that it might end up as a failure of compromise.

@JR: I didn't continue to fight you on the other article b/c there's not much else I can say if you don't want to believe me (and I'm not sure why you're taking such a hostile tone), other than that the DC City Council can certainly set those types of regulations into a zoning code. There's neither anything unconstitutional nor illegal about it. Many jurisdictions nationwide do it. The fact that there's presently no zoning regulation of, say, the hours during which a grocer in a residential area can be serviced, doesn't mean it can't be regulated. It surely can be.

by Joey on Jan 30, 2009 1:09 am • linkreport

Correction on the last comment . . . Zoning Commission, not City Council.

by Joey on Jan 30, 2009 1:24 am • linkreport

Erik, You seem to be having some difficulty reading Chapter 22. The regulations require that the builder provide facilities capable of accommodating trucks of at least a certain size. The zoning regulations do not relate to the size of trucks that can be used for deliveries to the site, and in particular, there is no control over the size of trucks that might use curb space when loading, or within the zoning regulations for whether oversize trucks attempt to use the loading berths or delivery spaces.

The minimums that are in the regulations are minimums for the number and size of the loading berths, loading platforms and service/delivery loading spaces. Yes, it would be possible to have maximums for the size of the loading berths and platforms (although that wouldn't address the goal of having sufficient facilities so that the development would not use the street and sidewalk for loading). But, it is not possible to prohibit trucks that are too large for the berths and platforms to deliver to the site.

Similarly, the other conditions that you list which the BZA can apply if any of the other requirements are modified or waived have to do with the physical conditions on the site.

In short, the zoning regulations relate to the size of the berths and platforms and not to the size of the trucks.

by JR on Jan 30, 2009 1:28 am • linkreport

Joey: Have you read the Zoning Act, which provides the principal basis and source of authority for the Zoning

Regulations?

by JR on Jan 30, 2009 1:49 am • linkreport

@JR: Yup. Broadly, it's very similar to the enabling legislation in nearly every state.

by Joey on Jan 30, 2009 2:37 am • linkreport

@JR, you are mistaken about what measured the Zoning Commission may take to a development proposal in terms of both the size of trucks accessing a parcel, the hours in which those trucks may access a parcel and other restrictions as the Zoning Commission may see fit on a development proposal.

There are numerous examples of the above. One that is upcoming relates to the Wisconsin Avenue Giant, where the ANC has asked for measures related to the above in the hopes the Zoning Commission gives those recommendations the "great weight" afforded in the home rule charter.

by William on Jan 30, 2009 6:45 am • linkreport

William, Can you provide an example where the Zoning Commission or the BZA has actually ordered these continuing limitations, rather than an example of an ANC resolution requesting that the Zoning Commission do so?

And, if you provide such an example, can you also provide information on the enforcement mechanism? If there are complaints about violations, will they revoke the certificate of occupancy?

And, I will remind you that this issue was raised in this blog with a claim that one could have retail as a matter of right in residential zones and include a provision in the zoning regulations that would control the size of trucks and the hours for deliveries for matter of right development, i.e., not a provision which is part of a PUD agreement. In a PUD, developers can enter into a construction management agreement with the community that will control the work hours, etc. during the construction process, although that agreement isn't part of the zoning order.

by JR on Jan 30, 2009 7:38 am • linkreport

JR: I appreciate having disagreement in the comments on Greater Greater Washington. You've also posted some helpful facts, like your contributions in the comment at 1:28. I also appreciate that you've stopped posting under various names.

However, I've repeatedly asked you to avoid attacking individual commenters personally. When you start your discussion of zoning rules with "Erik, You seem to be having some difficulty reading Chapter 22," that attacks the person, not the substance, and that's not okay. That creates bad feelings and I'm not going to keep allowing it.

A comment like "Joey: Have you read the Zoning Act, which provides the principal basis and source of authority for the Zoning Regulations?" doesn't add anything to the discussion. The comments here should inform other readers as much as they try to win points. Claiming someone hasn't read the relevant information instead of just giving your knowledge of the information (if, indeed, you do have any additional information) also is unconstructive and offputting.

Please a) stop attacking other commenters, like "you don't understand this city" or "you are having difficult reading," and b) stop insisting that other people should do hours of research in order to qualify to comment or post. If you'd like to explain some knowledge that you have, please go ahead. If you just want to tear down others, you can take it elsewhere.

For everyone else: If JR isn't willing to stop this behavior (since I've asked many times already), do you think we should take stronger measures? I haven't banned anyone from commenting, but do we need to resort to that?

by David Alpert on Jan 30, 2009 8:57 am • linkreport

1. Loading may only be schedule to take place between the hours of 8:00 a.m. and 7:00 p.m., Monday through Friday

http://dcoz.dc.gov/orders/17855_2897-145.pdf

by Erik on Jan 30, 2009 9:12 am • linkreport

David: In my opinion, posting rudely using multiple names is more egregious than merely being rude to others. As long as a commenter is always posting using the same name, if he's rude to others we can just ignore him. But if a single individual starts or continues posting under multiple names and is excessively rude, it's harder to filter out.

Posts that go over the line (racist, hate speech, divulging embarrasing personal information or attacking personal characteristics) or are spam can be deleted.

Unfortunately, I think it's best to allow rude commenters to continue posting. I also think that since you own the site and control its content, you probably have a duty to accept slightly more rudeness toward yourself than you would for rudeness to other commenters.

Thank God we've avoided the lowest level of comment, including "First Post!" and "U R A FAG!".

Perhaps there is a comment policy on another blog that you can modify and use here.

by Michael Perkins on Jan 30, 2009 10:38 am • linkreport

Erik, The case you provided is a summary order in a self-certified request for a special exception, with no opposition, and it appears as though the BZA listed three conditions that were proffered by the applicant in the summary order. And the proffer seems to have a loophole that you can drive a truck through, referring only to the loading schedule, not the actual delivery activities.

Most importantly, as I read the earlier posts, the main issue was whether the Zoning Commission or BZA could write regulations that limit the size of the trucks that are permitted to serve a site, and based on legal opinions and legislation, that is clearly beyond the scope of zoning.

by Andy on Jan 30, 2009 10:42 am • linkreport

I should add that several people have written or spoken to me recently saying that they feel that some of the nastier commenters are dissuading them from participating in comment discussions. If people feel that they don't want to comment unless they're ready to gird up for an enormous fight, that'd be a shame. But maybe it's a small effect and not worth taking the step of banning commenters.

by David Alpert on Jan 30, 2009 10:48 am • linkreport

Also, I don't care if JR attacks me. I mind if he attacks other commenters and drives some away. The lively comment discussions are a really great element of the blog, and I won't let someone destroy that.

by David Alpert on Jan 30, 2009 11:02 am • linkreport

Posting on the internet opens you up to criticism, good and bad. I don't take things personally from random people. Those who post negatively, instead of constructively, reflect poorly on themselves. I think banning is a bad idea, even in JR's negative comment toward me, saying I am unable to read, had some content about delivery trucks using the street which I didn't think about at the time.

I'm just learning, along with others on this forum, about zoning, urban planning, etc. I expect to be called out on it as I learn more. While I don't appreciate the negative comment, I really don't care. Its not going to stop me from posting and learning, this is interesting stuff.

And as Michael Perkins said, the lowest level comments you see in many internet forums are not present here. I think until you see such comments, banning would not help.

by Erik on Jan 30, 2009 11:28 am • linkreport

Small correction, David -- You say, "R-4 districts allow conversions as long as the lot size exceeds 2,700 square feet per unit...." It's 900 square feet per unit (sec. 401.3), or 2700 square feet for this three-unit proposal.

by John Goodman on Jan 30, 2009 1:34 pm • linkreport

Oops, thanks John. Fixed.

by David Alpert on Jan 30, 2009 1:41 pm • linkreport

An applicant family for an accessory apartment in an R-1 zone claims (verified?) to be underwater in mortgage, The neighbors are strenuously divided. Some accede because the applicants who are professionals promise that the exception would be for only 2 years. At the BZA hearing the applicant makes known their wish for a variation without time limitation and it is granted. Question: In fairness, could any similar application be denied to families that may not be as savvy in negotiating the system?

Why would any similar application be denied?

by Concerned on Dec 1, 2010 5:58 pm • linkreport

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