Greater Greater Washington

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Can the Anacostia Playhouse escape from zoning hell?

Some District leaders are discovering that there really is a serious cost to having an outdated zoning code. The Anacostia Playhouse might face up to 6 months of delays because of silly parking regulations, and there's not much the DC Council can rightfully do about it.


Image from the Anacostia Playhouse.

The City Paper reported last week that the playhouse, which expected to open in April, suddenly discovered its parking didn't count toward its parking requirement. That's because the parking is across an alley from the theater but the law says that required parking spaces have to be on the same lot as the building.

This is a stupid rule, and the Board of Zoning Adjustment will almost certainly grant an exception. But that takes months, and meanwhile a number of productions have already contracted to use the playhouse.

Councilmembers Marion Barry and Tommy Wells introduced emergency legislation to help the Playhouse move forward. It's a worthy impulse, but the council doesn't have power over zoning, and finding a way to grant an exception in this one case could set a dangerous precedent for others.

DC needs to fix parking minimums, and quick

First of all, this clearly shows why we need to reform the zoning code. It also shows the consequences of overly restrictive rules.

Many people like rules that force almost any development to request zoning relief, because it gives residents a chance to speak up at a hearing or for neighborhood groups to ask for changes or concessions. However, such a process also forces property owners to hire lawyers and spend months to get through these hearings.

Perversely, that is a lot easier for the big project which will have a greater impact on the neighborhood than for a smaller property owner, or in this case, a nonprofit opening with city financial assistance in an area which has struggled to attract many types of businesses.

The council can't, and shouldn't, override

Okay, but until we fix zoning, does the Playhouse have to suffer? Wells (ward 6) and Barry (ward 8) introduced emergency legislation to let the project move ahead, but as the City Paper also reports, Council Chairman Phil Mendelson refused to put it on the calendar. Is Mendelson being a scrooge? Not really.

That's because the DC Council does not have power over zoning. Before Home Rule in 1974, the federal government controlled all zoning. Congress didn't entirely trust DC's elected representatives to make land use choices, so it gave that power to the Zoning Commission, a 5-member board with 3 people appointed by the mayor and confirmed by the council, and 2 federal representatives.

The DC Council passes plans, like the Comprehensive Plan and individual Small Area Plans, which the Zoning Commission is supposed to follow. But the Zoning Commission actually decides whether to rezone any property or change the regulations. The BZA is a second hybrid federal-local board which rules on individual variances and exceptions based on the zoning code.

The pending zoning update doesn't need any approval from the counciljust the Zoning Commission. While some councilmembers (like Muriel Bowser) have nonetheless been catering to residents who oppose the update, wiser councilmembers have been staying out of this contentious issue.

Barry's and Wells' original bill would allow DC's Department of Consumer and Regulatory Affairs (DCRA) to give the Playhouse permits to move ahead, but only temporarily. If the Playhouse then gets the zoning relief it needs, it can keep moving ahead; if for some reason it doesn't, it would have wasted a lot of time. But since the ANC, the Office of Planning, and basically everyone else supports the Playhouse's petition, they'd probably be okay.

Override this time, and what's next?

Still, the bill flirts with a dangerous precedent: directing DC agencies to partly disregard zoning. The Zoning Commission has no police force to enforce its orders. It relies on DCRA to deny permits that don't have zoning relief. We don't want to go down a slippery slope where the Council passes laws telling DCRA to grant permits for projects that violate zoning.

It could work the other way as well. Residents angry about a proposed apartment building at Connecticut and Military asked Councilmember Mary Cheh (ward 3) to intervene and even pass an emergency law directing DCRA to block the project, at least temporarily, until there can be more community meetings. Cheh rightly pointed out that she doesn't have that power.

In one of her responses to neighbors, Cheh wrote,

The Council has no authority over the zoning code: the Home Rule Act defined the Council's legislative authority, but made it clear that the Zoning Commission has full authority over zoning matters. The issue was addressed directly by the Court of Appeals of the District of Columbia, who concluded that "the Zoning Commission is the exclusive agency vested with power to enact zoning regulations." ...

You ask that I petition the Mayor to direct the agencies not to issue any more permits until the concerns are addressed. Again, because there is no discretion in the issuance of permits, an intentional delay could open the District up to liability for takings and discrimination. The law simply does not allow the remedy that you seek.

If the council had passed Wells' and Barry's Anacostia Playhouse bill and someone had wanted to sue, there's a good chance the DC Court of Appeals would have struck it down. If they found a reason to uphold it, that would be even worse, because then it would create an opportunity for council meddling in zoning cases in the future.

This bill is probably safe because it doesn't seem like anyone actually has a problem with the project, but it's not a good idea to possibly set a dangerous precedent just because this specific case is uncontroversial.

There might be other fixes

This case does point to a flaw in the zoning process, in addition to the silly parking rules. Perhaps there should be a way for a property owner to petition for an expedited hearing when a longer delay would cause some hardship. Other processes include such shortcuts.

In fact, the zoning update doesn't do that, but it does allow the BZA to add a "consent calendar" where they can move through uncontroversial matters much more quickly. Perhaps that can help as well for the next Anacostia Playhouse.

And we need to get rid of parking minimums. This case shows how, while stricter rules can sometimes prevent bad projects, they also can at times interfere with good ones. Zoning restrictions have a cost.

As for the Playhouse, apparently the problem is that the building and its parking aren't on the same tax lot. A public alley separates the two. The DC Council does have complete control over tax lots and public alleys, unlike with zoning. Perhaps an emergency bill could temporarily close the alley, transfer the alley property to the Playhouse with a permanent public easement to let the public continue to cross it, join the two into one tax lot, then specify that everything goes back to the status quo ante, say, one year from now? Then DCRA can declare that the property meets current zoning and grant permits without messing with zoning at all.

That's still messy and an awkward thing to do by emergency legislation, but to me it's less dangerous than having DCRA issue a permit for a property that doesn't meet zoning. Or perhaps the clever attorneys in the council and DCRA could come up with another way to make the property conform to zoning while we wait for the slower process of making zoning conform to common sense and the needs of our city today.

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. 

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So, despite all the smoke, no fire.

The issue is the developers were not sophisticated to read the existing code and realize they didn't conform.

It isn't a parking minimum, it is the definition of "lot".

Would the new regs even change that?

Also, the original article said opening in June, not April, and if they need to expedite a hearing, then expedite it.

It is amazing we managed to build anything in the past 30 years with these peksy parking minimums.

by charlie on Mar 25, 2013 1:00 pm • linkreport

It isn't a parking minimum, it is the definition of "lot".

Which is only relevant because of the parking minimum.

by Alex B. on Mar 25, 2013 1:12 pm • linkreport

Yes, but does the new zoning updates change the parking requirements for bulk/commerical in this area?

This is rather similar to what happened with Shaw's Tavern. Owner/Developer messed up and didn't follow the rules. It is shame, and it was his fault.

Again, they can ask for an exemption, and reading 11.2116 it seems there should be no problem getting one.

by charlie on Mar 25, 2013 1:17 pm • linkreport

David, I'm not persuaded that the ban on offsite parking is as stupid as you suggest. Here's why:

1) It's generally pretty hard to sell off part of a lot. That makes onsite parking something that's likely to remain available for the use it's supposed to serve.

A separate lot, by contrast, can be sold off, making the servient parking unavailable. Zoning review can (in theory) prevent this by requiring covenants or other conditions.

2) It's almost a given that if offsite parking could qualify as matter-of-right, property owners would game the system by having a single parking facility serve multiple uses. That might be perfectly sensible (where the two uses have nonconflicting hours), or it might be a total sham where there really isn't sufficient parking to meet all the uses. Zoning review provides a means of policing such arrangements.

by 20002ist on Mar 25, 2013 1:24 pm • linkreport

This is rather similar to what happened with Shaw's Tavern. Owner/Developer messed up and didn't follow the rules. It is shame, and it was his fault.

You mean the episode where the restaurant manager out and out lied on the ABC application?

No, this is not similar at all.

by Alex B. on Mar 25, 2013 1:24 pm • linkreport

Banning offsite parking in a city is nonsensical. Most large venues use off site parking such as stadiums. A more practical solution would be to limit the geographic distance from the edge of the lot so that offsite parking can't be half a mile away. I think a lot of parking minimums are not useful to begin with though I'm not for removing them altogether, just lowering them where it makes sense.

by Alan B. on Mar 25, 2013 1:32 pm • linkreport

This is one time I have to agree with David 100%.

The Howard Theater has no on-site parking (at least none that I can see).

And the huge Verizon and Convention Center venues have no onsite parking to speak of.

But they are holding up the Anacostia Playhouse over parking minimums?

Ridiculous.

by ceefer66 on Mar 25, 2013 1:43 pm • linkreport

@ceefer66, again, this isn't an issue of parking or required minimums.

They put parking in, they just didn't read the code and realize they need to apply for an exemption to have the parking across the alley.

Could they have applied to have no parking at all -- maybe. But that is a seperate issue.

by charlie on Mar 25, 2013 1:49 pm • linkreport

2002ist: On #1, I don't think this needs to be a problem. You could also have a garage on the property and then tear it down, for instance. Or a required egress could get blocked.

Zoning can contemplates the possibility that something starts violating zoning after it's built; it's not one shot and then you're done forever. So any zoning that allowed parking on a different lot could simply not allow selling off that parking unless you have other required parking.

And that's exactly what the revised text does.

On #2, the new zoning also has rules for shared parking:

2102.13

Required and shared parking spaces provided in accordance with § 1502.11 shall
be subject to the following conditions:

(a) The spaces shall not serve as required parking for any other use during the days and times each use they serve is in operation;

(b) Unless under common ownership, a written agreement shall remain in effect between the owner of the parking area and the owner of the use for which the parking spaces are required (the “use”), and shall include the obligation set forth in § 1502.13(a);

(c) The original written agreement shall be filed with the Zoning Administrator prior to the issuance of the first certificate of occupancy for the use and any amendment or successor agreement must be filed no later than ten (10) days following execution by the parties; and

(d) The Zoning Administrator should maintain a file of all written agreements and amendments for the lot where the use is located and the lot providing the required parking spaces.

In short, you can share parking as long as you have agreements on file. If you have one use that's only weekends and one that's only weekdays, they can even share it, though this isn't flexible enough to allow, say, an office building that's still open at night but few people park, and a restaurant that's open for lunch but not very busy.

All of this comes down to the fact that we're solving a private need — parking — with overbroad rules. Fix the on-street situation so there's no spillover problem and then it's not an issue that the public needs to concern itself with.

by David Alpert on Mar 25, 2013 1:50 pm • linkreport

David,

The practical problem today is that zoning enforcement is next to nonexistent. (I speak from personal experience, having tried in vain to get the ZA's office to act on some fairly flagrant violations -- and this was for ongoing construction.) So I am skeptical of the value of filing written agreements with the ZA.

by 20002ist on Mar 25, 2013 2:12 pm • linkreport

20002ist: I believe we should enforce laws, but the fact that we're not enforcing one law is not a reason to layer on more restrictions. We shouldn't prohibit people from building things that just about everyone can agree is reasonable, just because we're afraid it can't be enforced. Fix the enforcement problem, don't keep a lot of extra restrictions just in case.

by David Alpert on Mar 25, 2013 2:28 pm • linkreport

in the present zoning code, churches are allowed to have noncontiguous parking when they meet certain conditions.

But this provision is actually not an issue of parking minimums, it's that the current zoning code doesn't provide for shared parking scenarios in commercial districts, rather than requiring parking be provided on each lot for its use. (You address this in your 1:50pm comment.)

cf. http://www.planetizen.com/node/19246, an article about the topic by Mott Smith.

This by the way is why for many years I've argued for the creation of "Transportation Management Districts" in commercial districts. I kept promoting the idea for H St. (as there were a number of potential parking lots that could be used at night to support the district, Autozone, a couple of churches, the Murray's parking lot, the parking lot used by a day care facility behind Murray's, etc.) but no one ever took it up.

2. A different kind of precedent that could be appropriate, but there is nothing in the current law that allows it would be the ABRA policy of allowing stipulated liquor licenses, which allows the business to sell liquor in the interim, in advance of the hearing process.

However, it's for a temporary period. Final licensing is dependent on a positive outcome from the hearing process.

They could develop a similar process for these kinds of zoning issues.

by Richard Layman on Mar 25, 2013 6:31 pm • linkreport

No one's questioned why it takes six months to get a simple exception past BZA. This issue is also a prime problem with the recent conversation about corner stores - nice to talk about, expensive to wait six months to figure out whether you have a business or a useless building you just bought. Having once been through it, I can tell you that it doesn't take six months to give neighbors notice, hold a hearing, and issue a result. At least not on non-controversial proposals like the playhouse (if there is opposition that MIGHT be different). BZA and DCRA staff are simply behind, because of underbudget/overwork or whatever I can't tell you. This kind of process should take no more than 45 days, and could be done in 30 days. Other cities do not take this long.

What's that mean? Let's say it is a $1 million building, very conservative for most commercial developments in D.C. At 7% interest and a six-month delay $35,000 just went down the hole and didn't benefit anyone in D.C. Just went to some bank in Delaware, reducing the amount the developer can spend in D.C. or the amount she'll have to charge DC residents for services delivered. I'm sure the developer, including most nonprofit property managers, would gladly pay $30k in fees to have a zoning adjustment adjudicated in a month rather than six months.

Something the Council can clearly do something about is to figure out whether funding or better management could clear up the delays. Also, I'm sure our conservative friends in Congress would quickly grant DC or BZA the authority to develop an expedited review process for non-contested applications like this one. Let's think creatively.

by Paul Harrison on Mar 26, 2013 1:52 pm • linkreport

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