Fight over 5333 Connecticut reveals dysfunctional process
After decades of fighting, work began last month on a new residential building at 5333 Connecticut Avenue in Chevy Chase. While neighbors had few good reasons to oppose it, the project embodies the loopholes developers use in DC's patchwork of building regulations and zoning.
The 261-unit building has long been approved as matter-of-right. It will not be a great building, but it is legal, and further appeals from residents to stop construction will only reduce their credibility in the future. Elaborate delay tactics will only reduce developers' willingness to cooperate with them.
On the other hand, the opponents' objections do reveal how Calvin Cafritz Enterprises designed the building to be as large as possible, using a thorough knowledge of DC's regulations. Architects Eric Colbert and Associates employed clever interpretations of what constitutes a "cellar," adding living space beyond the site's allowed density. The building's height was determined using the most favorable location of measurement.
However, the 5333 Connecticut Neighborhood Coalition doesn't simply want these irregularities fixed, they want a smaller building. They want a smaller building because they believe the effects of density will "harm" their community. They claim that added activity, reduced sunlight, and reduced tree canopy will degrade their quality of life.
Instead of looking for creative solutions to minor problems, they have chosen to fight the building itself. Rather than promoting uniform regulation across the city, opponents are using legal objections as easy tools to prevent a permissible project.
Recognizing that they have no legal standing, the majority of the ANC commissioners negotiated a memorandum of understanding that stipulated a number of design improvements for energy use and multimodalism. The four commissioners who voted for it were those closest to the project. The three who worked on the memorandum of understanding represented the areas that were most directly affected. The dissenting commissioners were in the suburban part of ANC3G, east of Broad Branch Road.
Despite the negotiations, opponents went ahead to protest the building at the Board of Zoning Adjustment. Given that there is no evidence that what Cafritz and Colbert have planned is illegal, the BZA should dismiss the complaints out of hand to avoid setting a precedent whereby the affluent and the influential preserve the narrow, short-term interests of their property at the expense of the rest of the city.
Opponents' case looks good at first, but lacks depth
With a little digging, it becomes clear that the 5333 CNC has no case against the building.
The project uses two sides of the building to calculate the height, a standard practice explicitly permitted by the Height of Buildings Act. Height must be measured from the existing elevation of the curb across from the middle of the mass of the front of building and height is determined by the width of the wider of the two streets it abuts.
Kanawha is narrower, but it is also at a higher elevation. Using the longstanding interpretation of the law, the Cafritz organization declared the Kanawha side the "front" and gained a few extra feet of height.
Opponents use a document from the Zoning Update process to show that this approach is unpopular but elide that the zoning update closes this idiosyncrasy in section 502.3, defining the height as originating from the midpoint of the facade that is closest to the lot line.
They further claim that the roof deck is 1.73 feet above the legal height because of how the development team calculates the Kanawha street frontage. The permitting calculations include portions of the facade of the longer, Military Road wing visible from Kanawha Street. The developer's midpoint is about 50' to the east, and 1.73 feet higher in natural elevation, allowing for the building to be that much taller.
A plain reading of the regulation suggests that this is permissible, if kind of tacky. Perhaps the regulation should be rewritten. Either way, the developer conceded this issue in the MOU, and will lower the building.
A similarly shrewd, but legal, reading of code adds habitable spaces in a "cellar story" that does not add to the official FAR. Regulations distinguish "cellars" from "basements," where a basement is simply below the entry floor, and a cellar is a space whose ceilings are no more than four feet above the adjacent grade.
The architect designed the finished grade to hide a string of apartments along Military Road, but also excavated an full-height window well in front of them. This "areaway" also appears in the interior courtyard, projecting into berms in the central courtyard.
DC classifies areaways and parking vaults as projections from the building, and every story of a sub-grade projection is considered independently of all others. Therefore, their claim that the berms around the areaways are "planters" is at some level correct, but not according to the regulations.
I agree with the opponents that this common interpretation of the regulation is sneaky. The city should revisit this regulation, not because density is bad, but because it is opaque to the public.
The final legal challenge in the opponents' BZA testimony is that the Military Road wing of the building extends beyond the plot of land zoned as R-5-D by 40 feet. A 1965 amendment extended the zoning of the plot to a length of 290 feet on Military. The zoning maps in 1966 and 1973 show this number. For some reason, from 1975-2003, the numerical description of the zoning plat appears as 251'. The graphical description of the lot remains the same, following the existing alley.
Neither side can find why the number was changed. Cafritz's lawyer claims that it is a misreading of the lettering of the 5/9, which I find unconvincing. Opponents have no better case, claiming without proof that the ZC wanted to prevent inappropriate growth and so changed it. The current, digital zoning map shows the current line ending at the alley, as consistent with all maps since 1966.
The opponents' limited familiarity with development issues extends beyond legal practices and into architecture. In response to the MOU, opponents write that they are for "practical, modest changes that would not require wholesale redesign," including shifting the mass towards Connecticut Avenue and creating a "buffer zone."
However, re-masssing a building is a redesign at a fundamental level. Foundations, floor structure, column placement, parking spaces, circulation routes, apartment layout, pipe routing, curtainwall drawings, and even the landscaping plan would have to be redone. Other than a few design motifs, there isn't much work left to save.
By suggesting that their objections are simple, legitimate, and simply resolved, opponents are disguising their desire to have as little built on the site as possible. It's hard to believe that anyone would put up this much of a fight over less than two feet of height and a cellar.
Fighting a legal building discourages collaboration in growth
The majority of the legal objections are in response to loopholes that will be resolved by the update of the zoning code initiated under Harriet Tregoning. The other dubious interpretations should be resolved uniformly across the city. It is unfair to reject these rules in this case specifically when so many other projects have employed them.
It's not fair to other communities if this building is an exception. Closing loopholes would benefit the city by making the development process more predictable for the public.
Tellingly, the opponents of 5333 Connecticut do not want to resolve these regulatory flukes. At a September 15th meeting, Peter Gosselin, one of the 5333 CNC's leaders specifically said he would not ask for city-wide change to any of their complaints.
More locally, all of the objections could be resolved by removing one floor of the building. They are not asking for that either. The 5333 CNC are asking for the Cafritz team to come back and negotiate for their own property on the neighbors' terms.
The developer was under no legal obligation to engage the community. But that does not mean that they shouldn't have. In an ideal world, developers should go into communities in a transparent and open-ended way.
New projects often alter the dynamics of neighborhoods, and developers should work with communities to make a new building amplify the value new residents bring while minimizing the negatives through walkability and sensitive design. Similarly, neighbors should recognize the need for a city to grow and respect others' property rights.
With that in mind, I can't blame the Cafritz organization for not asking permission. The strife over this project is part of long-term context of opposing development through extremely effective legal means. Whether it is the lawsuits that delayed the Cathedral Commons project for ten years or the defeat of the Upper Wisconsin Avenue Corridor Study through lobbying, the neighborhood has shown that it has the means to oppose legal changes.
If I were a developer, I would choose the least complicated permitting option and hire an architect who can get me the most out of the zoning envelope. In other words, I would build matter-of-right and hire Eric Colbert.
The process for this building has proceeded so poorly because Upper Northwest's anti-development groups have consistently punished developers without providing guidelines that are commensurate with the demographic realities of 21st-century Washington. Even when developers try to work with neighbors, as at the Akridge and Babe's projects, they have faced stiff anti-urbanism groups. Now, a dangerous cross between the cost of collaboration and the desirability of the land ensures that development in Upper Northwest will proceed without community input for the forseeable future.
In the current political climate, only large developers, working with the government can handle the risks of Upper Northwest. That is the reality a handful of vocal opponents have earned multiple neighborhoods.
The only way out is for residents to take a broader perspective towards the issues a growing city faces, and propose a vision for development that integrates new residents and buildings into a diverse city. It is up to citizens to begin that kind of planning.
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