Retail

Who decides DC's zoning?

by David Alpert   •   April 8, 2010 1:05 pm

DC's Zoning Administrator recently ruled that the ARTS overlay around 14th and U has reached its bar and restaurant maximum of 25%, prompting many blog posts about the decision.

Image by ChrisL_AK.

Some commenters specifically charge that DCRA, the agency of which the Zoning Administrator is a part, is stifling restaurants. But they're not actually the ones who make the zoning policy. To fully comprehend this issue, it's helpful to understand the complex set of boards and agencies responsible for making zoning policy.

The Department of Consumer and Regulatory Affairs (DCRA) is the agency actually responsible for giving out building permits and certificates of occupancy for buildings and businesses. The Office of the Zoning Administrator, inside DCRA, makes the determination about what the zoning regulations allow.

If someone wants to build a building or open a business that isn't allowed by the strict interpretation from DCRA, they go to the Board of Zoning Adjustment (BZA). The BZA grants variances and special exceptions. Variances are permission to do something not permitted in the zoning regulations, while special exceptions are permissions to do something that the zoning regulations allow but require a special review beforehand.

Under the ARTS Ovelay, restaurants exceeding the 25% would only need a special exception, but that still can take months to get through the BZA's lengthy quasi-judicial process and crowded calendar; establishments seeking one also are likely to need to pay a zoning attorney for considerable amounts of time.

If this is not acceptable, the solution is to change the zoning rules. That is done by the Zoning Commission, made up of three Mayoral appointees and two federal representatives, one from the National Park Service and the other from the Architect of the Capitol. The Zoning Commission reviews Planned Unit Developments (PUDs), larger-scale projects that get some relief from zoning in exchange for community benefits, and also amendments to the zoning map and regulations.

Most of the time, changes to the zoning regulations come from the DC Office of Planning (OP). They often suggest individual text and map amendments, though residents can also petition for amendments.

OP is also running the citywide zoning update process to rewrite the District's zoning code. OP has recommended setting restaurant limitations on a zone-by-zone basis and the Zoning Commission wants a simpler tool, but there is not yet a specific alternate plan. An ANC 2F committee recommended increasing the limit to 40-50%, but the zoning update itself will take another year or more to complete.

When OP formulates recommendations and when the Zoning Commission rules on them, they are supposed to be guided by the District's and federal government's overall plans, especially the Comprehensive Plan. There are also smaller neighborhood plans.

OP writes these plans and the DC Council (for the District) and National Capital Planning Commission (NCPC, for the federal government) review them. The Council isn't allowed to change Small Area Plans, but can disapprove them.

Therefore, unlike in most jurisdictions, the elected representatives don't directly make specific decisions about zoning at the level of individual properties. Instead, they can set very broad policies, which OP tries to turn into text and maps and the Zoning Commission rules upon, DCRA enforces and the BZA grants exceptions to.

If the 25% restaurant limitation is inappropriate, there are a few ways to fix the problem. Expecting DCRA not to enforce an existing regulation, however, is not one of them. OP could propose an immediate text amendment to change the rules sooner than the full zoning update, or ANC2F or other groups could. The Zoning Commission would hold a hearing, and could approve the change. MidCity Business Association has said they want to try to get such a text amendment moving as soon as possible.

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.