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Zoning update opponents ask for yet more delay

Foes of DC's zoning update have the script down to a science. If the Office of Planning (OP) doesn't change its proposals to cater to their wishes, they shout that there hasn't been enough public input. If OP does give in, claim that the plans are "a moving target" and call for more input anyway.

Photo by russelljsmith on Flickr.

John Chelen, the Cleveland Park resident who set up a stacked committee of the Ward 3 Democrats to condemn the zoning update, sent a letter to Mayor Vincent Gray, Council Chairman Phil Mendelson, and others asking for "a moratorium on the zoning re-write process."

Why? Because the proposals have been changing. I agree that's frustrating. The problem is that the changes entail OP caving to opposition from the very same groups that are upset they're changing. Chelen wrote:

During the last several months, several alternative sets of proposals have been released, often in a piece-meal fashion. Even now, proposed regulations are a 'moving target,' and additional changes to prior proposals have been promised. Such a helter-skelter manner of making such proposals imposes a hardship on our citizens.

With each new round of partial proposals by OP, our citizens must review these proposals and analyze their consequences, and try to find a way to submit their results to OP. OP has not devised a reasonable procedure to accept and respond to such submissions except through the limited meetings of the Zoning Task Force.

The public, especially notable citizens groups like the ones who have passed resolutions, do not have a way of engaging in this irregular process.

We would like you to directly intervene in OP's plans and make sure that OP will release a completely revised set of zoning regulations, "black letter law" as it's referred to in Federal practice, so that our citizens know exactly what's being proposed and how all sections interrelate.

After such a complete set of regulations is published, OP should hold additional public meetings to obtain comments and respond. Publication of a complete set of regulations and an opportunity for public comment should occur prior to any further transmittals to the Zoning Commission. To do otherwise would short-circuit an already inadequate process.

There was a finished proposal. It was at the end of 2011. OP brought the proposal to its task force, a group of citizens that included many opponents, as it prepared to start a series of public meetings.

OP had to show this to the task force because some time earlier, opponents had claimed there wasn't enough input, and asked for more task force meetings. So OP had to let the task force review it before releasing it to the public. However, opponents on the task force then responded by claiming that it was "secret" because OP hadn't had the public meetings yet. It was a classic Catch-22.

By the time this second wave of zoning debates came about, Travis Parker, who had led the process from its start in 2007, had moved to Colorado, and another member of the team, Michael Giulioni, had left to go to grad school. Responsibility for the update fell to Deputy Director Jennifer Steingasser.

Facing fierce opposition, OP started backing off on some elements of the proposals. Planners limited corner stores to just actual corners, and accessory dwellings in garages to existing buildings that don't need much renovation. They acceded to Georgetown's desire to restrict accessory dwellings even more, and cut a rule to legalize "off-center" houses, where one side yard is bigger than required but the other is too small.

Various councilmembers, at least including Muriel Bowser and Phil Mendelson, also asked for more delays. At this year's oversight hearings for the Office of Planning, Bowser asked OP to cut back some portions of the proposals, like corner stores, and OP has complied. (More on that soon.)

Unfortunately, that really did make the regulations a "moving target." In the more than a year since, OP has repeatedly weakened the proposals. There will be far fewer places people can rent out garages than before. Corner stores in residential neighborhoods have become even more difficult to set up. Plus, there is a long litany of smaller changes. It has indeed been confusing to track what is actually still in them and what has gotten lost along the way.

Worse yet, OP has told neighborhoods concerned about parking minimums around transit that the parking minimums won't even go away immediately after the code goes into effect. Instead, there will be a second "mapping" phase, where OP goes through some public process to determine where the transit corridors are even though it already has a map of them. That will give more chances for individual activists or councilmembers to push back against change in their neighborhoods and for OP—perhaps under a different mayor—to cave to some or many of these requests.

The Zoning Commission is the proper process

The most important point here is that there is a well-defined, thorough process for getting public input on a zoning proposal: the Zoning Commission's hearings. Most proposals first come to the public's attention when someone files a zoning petition with the commission.

They review it, "set it down" for hearings, hold often very extensive hearings, then have more meetings to deliberate. Under DC's Home Rule Act, they are the body with ultimate power over zoning, so it makes sense for the main hearings to happen in front of the Zoning Commission, not just in front of planners or councilmembers.

Most likely, the commission will want to have a very long, thorough process for hearing from the public on the zoning update. It could take them months, or more. That is where the public input should happen.

The Zoning Commission can change the proposals. It's fairly likely some members will try to "split the baby" and further attenuate any changes if there's a lot of opposition.

The problem for opponents is that once the Zoning Commission goes through this process and one wave of changes, they'll then pass something. Asking for another round of public hearings before the Zoning Commission even gets involved simply creates another opportunity for nothing to happen, or to further water down the proposals.

We should have been done by now

It's instructive to look back at the public process page on the original zoning update site. It first talks about the process OP underwent in 2008 and 2009, where a series of public working groups reviewed chapters of the code, and made recommendations. OP then created a set of broad policy recommendations, and submitted them to the Zoning Commission. The commission held hearings and voted up or down on each recommendation. That concluded in 2009.

The original process document says:

Upon completion of all 20 hearings, OP will take the language preliminarily approved by the Zoning Commission and work with the Office of Zoning to codify it into a final cohesive document. This document will then be subject to final review on this website and by the Zoning Commission prior to final approval.

The entire review and approval process is expected to take between two and three years.

There were originally only going to be 2 steps after those hearings: OP writes a final zoning code based on the ZC's guidance, then submits it to the ZC, which holds final hearings. We should have been done around 2010 or 2011.

Rough timeline of the original process. Image by the author.

Instead, opponents asked for OP to involve the task force more, which they did. Councilmembers wanted an additional public information meeting in each ward, which OP held this past December and January. Fine. Now it's long past time to get the text to the Zoning Commission.

Rough timeline of the actual and potential future process. Red bars are complete or almost complete, yellow are speculative. Image by the author.

OP had draft text last year. I read it and submitted hundreds of small suggestions. I also found some typos and errors. OP fixed the mistakes, incorporated a few suggestions, and disagreed with the rest. Having a "black letter" version of the code for people to react to does not mean that if there are any errors, you have to release another one, have more meetings, then another one, more meetings, and so forth.

OP had hundreds of public meetings, then zoning commission hearings, then task force meetings, then more public meetings, then more task force meetings, with many neighborhood meetings along the way. Enough is enough. We're at least 2 years beyond the original timeframe, with a draft that's now weaker than what the Zoning Commission already approved.

Mendelson has scheduled yet another oversight hearing, for July 2. We don't need more hearings. At the last one, Mendelson even said he thought this issue should just go to the Zoning Commission already. Hopefully he really meant it and will still push for that to happen.

OP has been showing the final chapters to that task force. Now, they need to submit them to the commission, and the commission needs to schedule its setdown and hearings as soon as possible. There's no reason for any more delay.

David Alpert is the founder of Greater Greater Washington and its board president. 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 two children in Dupont Circle. 


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Anyone else seeing irony to democrats being opposed to more affordable housing opportunities and a better environmental solution to urban density?

by Andrew on Jun 24, 2013 1:33 pm • linkreport

Yeah. The entrenched status quo. They've got theirs, now you can't have yours. It's the theme today, between MoCo's engineers not wanting to build mixed-use roadways to the Far NW crew trying to kill any sensible rezoning laws. Sigh...

by dc denizen on Jun 24, 2013 1:48 pm • linkreport

All done for no discernible purpose other than the fear that people who want to live in a neighborhood will actually reduce the value of your house.

by drumz on Jun 24, 2013 1:51 pm • linkreport

I have a few choice appellations for that guy and Democrat is not one of them. Five years is long enough.

by Alan B. on Jun 24, 2013 1:54 pm • linkreport

This is completely typical. We must have plans, and studies, and meetings. Then more meetings and studies and plans.
If you haven't read it already, I'd encourage you to check this out:
"Post-Mortem of a Failed Form-Based Code"

by renegade09 on Jun 24, 2013 1:59 pm • linkreport

No doubt the Office of Planning has botched the ZRR. Had they done what they were supposed to do (implement the Comp Plan) when they were supposed to do it (2008 or 2009), everyone would have been spared this endless process.

But the draft released in 2011 was, frankly, a piece of shit even if you liked the policy proposals. Much of the last round of discussion focussed on clarifying what OP did and did not intend to propose.

The new draft has been trickling out (residential chapters just got released last week and a few chapters are still not out). It's not unreasonable (or ironic) to require enough time both for people to read and comment on the final text once it's complete and for a serious discussion about Comp Plan consistency before there's a decision about whether the new regs become law.

RE Catch-22s. Conversely, the game proponents play is that it's never the right time to criticize the ZRR -- either it's premature (this is only a draft) or it's too late (we've been working on this for years, you should have spoken up earlier). Again, OP really screwed this project up. It's been full of fits and starts and almost everyone who started working on it is gone, so there's been a pretty steep learning curve not just for the public but for OP staffers. There's been a fair amount of turnover on the ZC as well over the course of the revisions.

I'm eager to see this process finally end. But I also want it to end well.

by BTDT on Jun 24, 2013 2:29 pm • linkreport

BTDT: I've never objected to people criticizing it on its merits. People criticized it early, middle, and late and still are. But the letters are little about substance and mostly about process, and the process arguments ring most hollow. (I disagree with the substance objections, but those are a

The Comp Plan thing is also a red herring. Each part of OP's presentation lists Comp Plan elements that ask for the changes. For example, H.1-5.B says,

Explore changes which would facilitate development of accessory apartments (also called “granny flats” or in-law units), English basements, and single room occupancy housing units. Any changes to existing regulations should be structured to ensure minimal impacts on surrounding uses and neighborhoods.
The question is what is "minimal." Opponents interpret this closer to "do nothing that will have any impact." I'd argue it's "try to encourage these to happen in the way that impacts a neighborhood less," which is what OP is doing with a litany of restrictions.

by David Alpert on Jun 24, 2013 2:33 pm • linkreport

Correction: I've objected to people criticizing the zoning update on it merits IF they are actually making false statements about what it does, like this flyer:

I welcome a debate about the merits of the zoning update. That debate is most properly held at hearings before the Zoning Commission, the proper venue for all zoning debates. Let's have OP finish their text, file it with the ZC, and then have that debate already. I hope my views will win, but they might not; we'll see.

by David Alpert on Jun 24, 2013 2:43 pm • linkreport

And this week on the Chevy Chase listserv was a lively debate about how ADUs will bring more crime to the area because:

- renters tend to be lower income and lower income folks disproportionately commit more crimes, complete with statistics;
- having more new faces in the neighborhood means that residents won't be able to discern when a "stranger is in their midst.

by fongfong on Jun 24, 2013 3:22 pm • linkreport

More eyes on the street will actually reduce crime.

by Thayer-d on Jun 24, 2013 4:28 pm • linkreport

"renters tend to be lower income and lower income folks disproportionately commit more crimes, complete with statistics."

This is such a broad stroke. Okay, it may be true that overall a lower income neighborhood is going to have more non-white collar crime in it than a higher income neighborhood, but there are exceptions to the correlation between having a lower income and being more prone to committing non-white collar crime. And given that these ADUs are being targeted for extended family members (eg in law apartments) and roommate types (eg the just out of college people), I don't see how this is going to increase crime, at least in the short run. Yes, you could make the argument that this is the slippery slope that begins the neighborhood's decline as an "exclusive" neighborhood (which is de facto), but there are so many other factors that would be required for a true and substantial decline to occur that this is not worth worrying about by anyone.

by A neighbor on Jun 24, 2013 5:21 pm • linkreport

A couple of choice quotes from the Chevy Chase Listserv:

I'm not thinking of the people who are living in ADU's. I am thinking that it wouldn't take long for would-be petty thieves to figure out that their presence is less likely to
attract attention if there were more people living in alley units. For those of us, and there are quite a few, who live adjacent to or near the many alleys that snake around our residences, this is a real concern. ADU residents have
friends, small businesses have visitors, renters will take in roommates, and over time the connection between homeowner and renter could get tenuous.


It depends on who is renting the ADU. If it is a group , with different occupants every few months, it may be difficult to keep track of them. Will the renter run a background check on each member of the group renting the back yard apartment? If the renters are a young professional or students, the occupants may change location frequently.

If people are arriving late at night, there will be no way of knowing who is walking between the houses if entry is side yard or back alley.

Additional confusion about who belongs where is the last thing we need to worry about.

You can't make this stuff up!

by William on Jun 24, 2013 5:41 pm • linkreport

The big problem on affordable housing is that the DC government seems reluctant to enforce existing regulations or just doesn't understand what is already required.. They don't need to wait for a zoning rewrite to do that. Combine spotty enforcement of existing regulations with slick developers always trying to game the system and you have a patchwork of affordable housing commitments. Case in point: I think in the Giant development in NW, where the developer's attorneys successfully argued that affordable housing should be treated as an "amenity" entitling their client to added density, when all they were doing was barely meeting what the regulations already required for affordable housing.

by Axel on Jun 24, 2013 5:43 pm • linkreport

If people are arriving late at night, there will be no way of knowing who is walking between the houses if entry is side yard or back alley.

"I won't know whether to clutch my pearls or not if I see someone in our alley!"

by MLD on Jun 24, 2013 5:44 pm • linkreport

Re "I've never objected to people criticizing it on its merits. People criticized it early, middle, and late and still are. But the letters are little about substance and mostly about process"

I didn't say you did. But here's the rub. If people don't get an opportunity to read and digest a complete draft of the proposed regs in their final form, there can't be a well-informed substantive debate. This is both a devil's-in-the-details and a lots-of-interconnected-parts scenario all wrapped up in a mind-numbingly long text. If you have blind faith in OP, then I guess it's easy to just say yes. But nothing I've seen in this process inspires such confidence.

As for Comp Plan consistency, it's trickier than citing a single passage. Like the Bible, there's almost always a different single passage that would work equally well for the other side. OTOH, when you read the text holistically (in both cases), some arguments become a lot less persuasive than others.

This is one of the reasons why it's important for the Council to be involved in the debates over the zoning regs. They wrote and adopted the Comp Plan and if the proposed regs are at odds with CP, then they need to let the ZC hear that.

RE crime and ADUs. Yeah, it's an obviously stupid argument. But we've seen dumb/overwrought arguments from proponents as well. The challenge is to focus on making(and rebutting) the best arguments on both sides of the various issues.

by BTDT on Jun 24, 2013 6:03 pm • linkreport

you're comparing a zoning update document to the bible??

by Tina on Jun 24, 2013 6:09 pm • linkreport

"you're comparing a zoning update document to the bible??"

The bible you can chose to not adhere to if you so please ... the zoning regs ... not so. :)

by A neighbor on Jun 24, 2013 6:35 pm • linkreport

@BTDT One small problem with your logic - the Council has no right to get involved, as per the law. And quite honestly, who among us thinks having the current crop of members involved in a process that might potentially benefit developers is going to turn out the way opponents would like. I'd like to bet a Redskins mug full of cash (how could I resist?) that is not the way to run an airline.

As for the Council being involved in interpreting whether zoning regulations meet the comprehensive plan, the Zoning Commission has got that job. Read the Babe's PUD and you'll find 24 ways the ZC found that building would be consistent with the Comprehensive Plan.

The Comprehensive Plan is a lot like Buddhism in that any believer can find their god in its pages.

by fongfong on Jun 24, 2013 6:39 pm • linkreport


I'm comparing the Comp Plan -- a text that is very different from the proposed zoning regs -- to the Bible. And the comparison was limited and specific.

by BTDT on Jun 24, 2013 6:40 pm • linkreport

The Council isn't required to weigh in on the regs, but it's certainly not prohibited from doing so. And, since the Council clearly has the power to pass Comp Plan amendments that could throw the legality of objectionable regulations into question after the fact, it makes sense for the Council to raise objections before the ZC adopts the regs.

by BTDT on Jun 24, 2013 7:25 pm • linkreport

At last evening's (June 24) Zoning Commission public meeting, Jennifer Steingasser (the Office of Planning official now leading the ZRR process) stated that the Zoning Commissioners would receive text for the entire rewrite in July. The ZC asked her if OP would request a setdown decision that month. "No" she answered. She urged them to read through it in August (when the ZC is in recess) and that the question of how and when to proceed could be taken up in September.

by Lindsley Williams on Jun 25, 2013 6:10 am • linkreport

"I'm comparing the Comp Plan -- a text that is very different from the proposed zoning regs -- to the Bible. And the comparison was limited and specific."

I would suggest not of all us would agree that there is one way to holisitically read the bible that is more persuasive than all others.

Or that the bible (or legal texts) were meant to be read "holistically".

by JewdiciarySquare on Jun 25, 2013 9:02 am • linkreport

I'm certain that people would disagree about what the correct holistic interpretation would be. And, of course, in the case of "the Bible," there's disagreement about what the correct "whole" should be.

But among the standards used for evaluating the plausibility/superiority of an interpretation are that it(a) makes sense of more of the text and (b) isn't directly contradicted by other parts of the text.

FWIW, it's a basic principle of statutory construction that an interpretation that renders the statute coherent and consistent is to be prefered to one that doesn't.

by BTDT on Jun 25, 2013 10:02 am • linkreport

IANAL, but I don't think being coherent and consistent for purposes of statutory construction is the same as "reading holistically" - I would think thats a narrower attempt to avoid direct contradictions.

by JewdiciarySquare on Jun 25, 2013 11:36 am • linkreport

The witness list for this hearing is the who's who of anti-change DC residents. I encourage people to show up and testify or submit written support for OP and the Zoning Rewrite.

by Andrew on Jul 2, 2013 5:55 am • linkreport

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