Greater Greater Washington

Posts about Inclusionary Zoning

Development


Urban hipster? Long-time resident? We all need an affordable place to live

How does a growing city ensure that affordable housing is available to its population? As DC gains population for the first time in decades, we must take advantage of creative new tools and cross class and cultural boundaries if the city wants to be affordable for all.


Photo by thisisbossi on Flickr.

Tuesday's Coalition for Smarter Growth forum, "Urban Hipsters and Long-time Residents Unite! Housing Strategies to Preserve Mixed Income Neighborhoods as DC Grows," featured David Bowers of Enterprise Community Partners and DC planning director Harriet Tregoning.

The speakers discussed the city's changing demographics, various affordable housing tools at the city's disposal and the role transportation plays in ensuring affordability. The bottom line is that, as Bowers said, "whether you've been here 40 years or if you just got off the Bolt Bus from New York... we all have the need for safe, decent affordable housing."

David Bowers is a minister, and his oration shows it. Standing before the audience, Bowers told stories: of an African American couple in their 70's that moved to the District five decades ago, when they were redlined out of certain neighborhoods; of growing up all too aware of the 8th & H gang; of his coworker, a 25-year-old Georgetown graduate who lives with friends and volunteers at her church. He punctuated the end of each anecdote with, "And that's DC!"

The point? As Bowers says, "DC is a diverse city that has changed over time and will continue to change." That change includes housing. "People have been priced out of neighborhoods, not by some nefarious plan, but by the market... It's not going to be static."

Bowers also serves as the vice president and impact market leader for Enterprise Community Partners, Inc., which through its Continuum of Housing Campaign, works to promote a diverse mix of housing that can accommodate low- and moderate-income earners.

During his presentation, he asserted three key points critical to that end: acknowledging that all people have inherent worth and deserve dignity and respect; all people have the need for safe, decent affordable housing; and that all housing is affordable, but the question is, "for whom?"

Tregoning's presentation, in contrast to Bowers', was filled with data points on the District's demographics. Since 1960, the District lost 200,000 people, with some neighborhoods in the city's core losing up to 50 percent of their population. Within the past decade, however, DC has been regaining population. The release of 2010 Census data later this month is expected to show the population again surpassing the 600,000 mark.

"I like to think of Washington as the city of the future," Tregoning said. With our smaller household sizes and concentrations of both recent college graduates and retirees, "we already have the demographics of the United States in 2050," she said. "Part of the challenge is to right-size our housing stock so we can have the type of housing that matches the needs of our residents." For example, Tregoning pointed out, the multi-unit building she inhabits in Columbia Heights used to be a single-family home.


Photo by smartergrowthdc on Flickr.
Along with this changing population comes a change in how District residents get around. When compared to our region, DC residents are three times less likely to own car and three times more likely to walk to work. And while the city's population grew by 1.7 percent between 2005 and 2008, the number of motor vehicle registrations dropped by nearly 6 percent during the same period.

What does transportation have to do with affordable housing? First, the cost of parking is usually bundled with new housing, even if homeowners or tenants don't have cars. In DC, only 65 percent of households own a car, and in neighborhoods like Columbia Heights that plummets to only 20 percent. Developers often overestimate how much parking is actually needed, and in other cases parking minimums require developers to spend lots of money to build parking spaces. Structured parking, for example, costs between $35,000 and $50,000 per space. That's a high cost to include in the price of housing.

Second, reducing transportation expenses to households makes living in our region more affordable for everyone's bottom line. Washington-area households in neighborhoods well-served by transit spend an average of $9,000 per year on transportation, while the regional average is closer to $19,000. In some car-dependent areas of our region, households spend up to $25,000 per year on transportation.

Don't believe it? Ask AAA, which estimates the annual cost of car ownership at over $9,500. It's easy to see that car-free and car-lite households save money on transportation, and households in denser areas like the District have access to more transportation options.

Because housing and other land-use issues are inescapably linked to transportation, these related costs should be factored together when considering affordability. Especially in DC, where the median income is lower than the region at large, increased transportation costs have a dramatic impact.

Already, 90,000 households in the city pay more than a third of income to housing, while 47,000 households spend more than 50 percent of income on housing. Ensuring low transportation costs is especially important for these families.

Tregoning said that the city's transportation effortssuch as more transit options and better places to walk and bikeaim to reduce household expenses. 40 percent of all DC auto trips are 3 miles or less. "Those trips can be converted to walking, biking, or transit trips," Tregoning said. "I don't expect anyone to make an extraordinary effort" to bike, walk or use transit, she said. It's up to the city to ensure that "for many trips, it should make more sense and be easier" to use modes that save residents money.

Both speakers mentioned inclusionary zoning (IZ) as the primary tool that could be used to keep housing in the District affordable and diverse. The city's IZ policy was enacted in 2006, when data demonstrated that, as Tregoning said, "we were either re-segregating the city or reinforcing the segregation" through development patterns. Currently, all new construction of 10 or more units must set aside 8-12% of those units as affordable housing.

In the future, and when the economy rebounds, Tregoning suggested that as many as, if not more than, 170 units per year would be set aside for households earning between $32,000 and $80,000. And, per the Anacostia Waterfront Initiative's mandate, new construction in some East of the River communities must comprise of at least 30% affordable units.

Though inclusionary zoning has its detractors, it's not just a hot topic for the Office of Planning. Mayor-Elect Vince Gray has repeatedly referenced IZ as a way to mitigate potentially skyrocketing housing costs. IZ is here to stay for the foreseeable future. If wielded effectively, it should keep the District more affordable than it would be otherwise.

Beyond the statistics and the programs, the most important takeaway from the forum was Bowers' call for engagement. "Get informed and get involved," he told the audience. "These conversations about the urban hipster vs. the long-time resident, black vs. white, black vs. Latinothat divides." The city's chances of overcoming these challenges, he said, hinges on involvement from a cross-section of its population.

Bowers encouraged forum attendees to substantively engage in places where not everyone looks or talks like them. He counseled the audience never to be apologetic in the face of hostility as they attempt to bridge the city. As complex as housing policy can be, it begins with simple discussions. "Start talking with people," Bowers preached, "instead of about people."

Development


Keep inclusionary zoning housing affordable

Inclusionary zoning, a new affordable housing tool in DC, has a long and successful track record in other (and adjacent) communities to create mixed income housing. However, pockets of resistance to DC's inclusionary zoning (IZ) law remain. In a recent Washington Post Capital Business commentary, Manna, Inc., a non-profit housing developer and the D.C. Building Industry Association aired incorrect claims about the DC's IZ program.


Photo by the author.

The specific debate here is about how to sustain an affordable housing stock while giving assisted buyers wealth-building opportunities through homeownership. Many financially subsidized affordable housing programs let assisted buyers resell their homes at market prices after 5, 10 or 15 years. The homeowner gets to keep a portion of the profits from the market-price sale, usually after repaying original subsidies. Taking a subsidized unit to market price creates a big jump in price. This is profitable to the first buyer, but converts the affordable unit into a market rate unit, reducing the overall amount of affordable housing in the city.

DC's IZ program, like many land-based subsidies such as bonus density or land trusts, requires the owner to sell at an affordable price, yet allows the price to rise as overall incomes in the region rise. This rise in price is then shared with the owner. Keeping the unit affordable but sharing appreciation with the homeowner based on rising area incomes is a national best practice. According to the Center for Housing Policy, this is an effective approach that balances individual wealth-building with community goals of ensuring long-term affordability.

IZ requires new housing developments to set aside a small portion of units at more affordable rates. In exchange, the developer gets to build additional units than the zoning would otherwise allow. The widespread affordable housing policy became DC law in 2006, but implementation was delayed until last summer, well after the housing market crashed. Thus, we must wait for a new housing development pipeline to start producing again.

In the case of for-sale units, IZ offers opportunities for lower income families to build wealth while realizing the other important benefits of homeownership. DC's IZ program uses the change in the HUD Area Median Income (AMI) to calculate a maximum resale price an owner may receive for his or her unit. It uses the annual rate of change over the previous ten years to smooth out fluctuations in the AMI. For example, an IZ owner who bought her unit in 2006 for $200,000 and sold it in 2008 could potentially sell it for approximately $211,800 (plus any capital improvements made). This equals an appreciation of almost 3% per year. Over the same period, an owner of a market-rate home would have had to deal with the 11-percent decrease in the area median home values. Programs like DC's IZ can help families who buy at affordable, below-market prices weather downturns in the market better than those owning market-rate homes. IZ homeowners may even have the opportunity to sell for a gain when the market is flat or down.

IZ helps low- and moderate-income residents keep living in emerging neighborhoods, even as land prices rise. This inclusive policy is a direct way to ensure that lower income residents share in the positive effects of the District's revitalization. It also helps reduce commuting costs and times for workers who serve vital roles in DC's communities.

Manna suggests lifting all resale price restrictions from an IZ unit after 5 years. Montgomery County abandoned this policy years ago after losing most of its affordable IZ units when these short-term affordability restrictions expired.

Learning from Montgomery and other jurisdictions around the country, the DC IZ law is designed to build a permanent stock of affordable housing for future generations of buyers and renters. Still, it also allows homeowners wealth-building opportunities and protects them on the downside in declining housing markets.

Manna cites problems with mixed income developments that predate IZ. Many of these problems stem from the way the programs were administered. Now that the IZ program will create many similar units across the city, the DC Department of Housing and Community Development is creating a more effective stewardship framework to address many of the shortcomings of these earlier ad hoc efforts.

DC IZ's approach to long-term affordability is based on successful, time-tested efforts across the country. Hundreds of local governments are using such tools to balance affordability with asset-building opportunities for lower income families. Since low- and moderate-income DC residents and workers still face formidable barriers to affordable homeownership despite the downturn in the housing market, we need all the tools we can muster to provide more housing choices in transit-accessible and amenity-rich neighborhoods.

Cheryl Cort is Policy Director for the Coalition for Smarter Growth and spokesperson for the D.C. Campaign for Mandatory Inclusionary Zoning.

Development


Vince Gray talks IZ, New Communities, and rent control

At the recent blogger roundtable, Mayoral candidate Vince Gray talked about his goal to unite residents in "One City."


Photo by Geoff Hatchard.

He noted that while DC is currently "very divided by geography, age, gender, and race," ultimately "people have got to feel like there's a place for them." While education, economic development, and workforce education are pieces of this puzzle, without suitable and ample housing for all, we will continue to struggle as a divided city.

Gray noted that he pushed for inclusionary zoning from the start of the two-and-a-half year struggle to get the regulation on the books, working through one emergency legislation after another while the Fenty administration delayed implementation. Lamenting the loss of potentially hundreds of affordable housing units during the hold-up, Gray says that if elected mayor, he will "aggressively implement" IZ.

Another housing issue we discussed was rent control. Under current legislation, which Gray co-sponsored, rent control is up for re-authorization every five years. Gray promised that, as mayor, he would work to make rent control permanent, though he acknowledged it could potentially be challenged as unconstitutional.

Avoiding displacement is perhaps one of the most daunting challenges to housing equity. Under federal programs like HOPE VI, new mixed-income, and sometimes multi-use, developments are built with the intention of providing homes for both current and new residents of the community. A hiccup comes when low-income residents "temporarily" move to make room for new construction.

Under the New Communities Initiativeestablished at the end of Anthony Williams' administrationBarry Farm (Ward 8), Lincoln Heights/Richardson Dwellings (Ward 7), Northwest One (Ward 6) and Park Morton (Ward 1) are to "transform [from] highly concentrated low-income neighborhoods into healthy mixed-income neighborhoods." Perhaps the most important component of this initiative is the guiding principle of "build first" which "calls for new housing on publicly-controlled lands to be built prior to the demolition of existing distressed housing to minimize displacement."

When asked how best to retain current residents while improving housing, education, and economic opportunities, Gray pointed immediately to New Communities. While not a new initiative, it is one we seem to have lost track of as the economic boom turned into a bust. The reality is that while most of us are facing challenges in the current climate, many residents in our city who were struggling at the peak are in further distress now.

Gray, at least on the campaign trail, is able to recognize this gulf that continues to divide DC, and he seems to be genuinely interested to continue to push for solutions that have been staring us in the face for years now. Issues like inclusionary zoning, rent control, and New Communities are all ways the city can help bridge that gulfthey just need to truly be championed in order to work. It will take serious sustained effort from all the city's leadership to accomplish these goals.

Cross-posted at The District Curmudgeon.

Development


Chapin Street rezoning requested for affordable housing

The owner of the vacant lot at 1412 Chapin St, NW has asked the Zoning Commission to rezone the property for a five-story, 44-unit affordable apartment building because existing zoning forbids one the same size as its neighbors or the one that burned down on that spot in 1996.

In addition to the 10% of units under inculsionary zoning that have to go to households making 50-80% of the Area Median Income in perpetuity, the proposal would dedicate the rest of the units for households at 60% AMI for 30 years. 9 of the units would be studios, 26 one bedroom, and 9 two bedroom.


Concept plan. Image from the PUD filing.

A garage opening onto the rear alley would contain 15 car spaces, one handicapped space, one loading space, and 41 indoor bicycle parking spaces. In addition, the applicant proposes giving a $50 SmarTrip card, a one-year SmartBike membership, and a one-year Zipcar membership to each new resident. They will work out an agreement to hire DC residents and partner with an inner-city mentoring program, Mentoring Works2, to enable at-risk youth to observe the design and development process. Finally, they propose to create a green roof garden and other energy efficient features.

In addition to apartments, the ground floor will house a community room for residents. That floor will occupy the entire lot, while upper floors will form a U shape around a central courtyard.

This property is zoned R-5-B, but that zoning doesn't allow the scale of the project as proposed. That's too bad, because the project is similar in size to most other buildings on the block. The two apartment buildings across Chapin Street are also five stories, and buildings to the west range from 4-6. Most of the properties take up the vast majority of their lots as well.

According to the OP report, a six-story apartment building, "The Berkshire," occupied this property until destroyed by fire in 1996. Across the alley to the south was a four-story building, once the Van Cortlandt Apartments and then the Community of Hope homeless shelter before sitting vacant for some time; the remaining facade was sadly demolished this summer.


Aerial view of the area, facing west. Image from Bing Maps.
Chapin Street is on the right, Belmont on the left, 14th below. The property in question is the grass-covered lot just above the block-long dirt lot (Nehemiah Shopping Center).

However, R-5-B zoning only permits an FAR of 2.16 with inclusionary zoning, a height of 50 feet, and 60% lot occupancy. The remaining buildings in the area surely exceed many of these parameters, and the Berkshire, which OP says had 90% lot occupancy, likely exceeded all three.

In order to get this project built, the applicant is requesting a rezoning to C-2-B, the same zoning as the property facing 14th Street to the east. That property used to be the Nehemiah Shopping Center, and received zoning approval in 2006 for a 90', 225-apartment building with ground floor retail, but that project has not yet started construction and recently received a two-year extension.

The C-2-B zoning will give added height and lot occupancy flexibility for this project. However, it won't actually contain any commercial uses. This lot is also smaller than the normal minimum for a PUD, but the Zoning Commission can relax the minimum if it finds the project to be "of exceptional merit and in the best interest of the city or country." Creating affordable housing is indeed very meritorious, though perhaps the standard need not be so high. Making the housing stay affordable in perpetuity instead of just for 30 years would also make it even more meritorious.

The zoning in an area should not make most of the existing buildings nonconforming, or, as in this case, prohibit replacing buildings destroyed by fire or neglect with similar ones. Projects shouldn't have to constitute "exceptional merit" and undertake a lengthy PUD process just to build something shorter than what was there before. And it shouldn't require rezoning a residential property to a commercial classification to construct an all-residential building. This building type isn't necessarily appropriate in every R-5-B district, which includes many 3-4 story row house areas, but it certainly is here, and our zoning code should reflect that. With the upcoming zoning rewrite, hopefully it will.

Development


Howard Town Center racing to hit the low bar

On Monday evening, CastleRock Partners, the development team selected by Howard University after a decades-long back-story for its Howard Town Center project on Georgia Avenue at V Street, presented its concept for the site at a meeting hosted by the Pleasant Plains Civic Association.


Conceptual floor plans. Images from the developer.

As part of its long-term ground lease agreement with the university, which the developers said should be signed within a week, the project must include a grocery store and the developers were looking to include approximately 450 apartment units. Otherwise, the developers stressed that their proposal was in its initial phases and things like design and potential tenants were subject to change.

That's good, because the Howard Town Center proposal as it stands needs some work. Here are the areas of contention:

Connecting W Street: In 2005, the City Council adopted the Duke plan, a small area plan for Shaw and U Street. One of the key components of the Duke plan was guidance for public realm improvements in the neighborhood, including knitting together the superblocks into a better grid. Tim Kissler of CastleRock told the at-capacity room Monday evening that "what we have is basically what's drawn in [the Duke] plan."

Except it's not. The Duke plan connects W Street between Georgia and Florida Avenues. This project as proposed would prevent that from happening, instead using that area as an underground parking ramp.


Duke plan proposal for W Street.

Howard University needs to better connect with surrounding neighborhoods. There are few better ways to do that than to stitch together the missing street grid that separates the university from the neighborhoods to the west. As it stands, this proposal fails to achieve this community goal. The Town Center proposal includes a mid-block pedestrian cut-through, but it's located closer to V Street. Perhaps it would be more effective closer to W Street, where the connection is actually missing.

Parking: Since the exact amount of retail is not yet determined (the number floated Monday was up to 125,000 square feet, including the grocery store), the developers wouldn't put a number to the amount of parking they plan to include. They acknowledged the forces competing over parking, with the DC Office of Planning pushing for fewer spaces than required and potential retail tenants (on whom project financing depends) interested in more suburban amounts of parking. It looks like OP has learned the lesson of DC USA, even if retailers have not. When a neighbor raised the issue of the water table hampering underground construction, Tim Kissler told her that it just costs a lot of money to build deep. Since all of this project's parking will be underground, there is a big opportunity cost to building as much parking as retailers demand. That money could be used for a lot of other things that actually make the project better.

Affordable housing: The project is participating in DC's Inclusionary Zoning program, but the developers are only meeting the IZ minimums, proposing that 8 percent of the residential units be priced below market value. This was a big concern for many residents at the meeting, who were dissatisfied with such a low number.

Sidewalks: A DDOT representative at the meeting noted that Georgia Avenue's sidewalks are their narrowest at this project's location. Despite the high-traffic retail proposed for this project, the developer didn't provide for wider sidewalks in this draft plan and seemed reluctant to do so when asked about it by a neighbor. DDOT's representative said that this is something DDOT will be negotiating with the developer. This project is also within Georgia Avenue's Great Streets plan, and the timeline for streetscape improvements on lower Georgia Avenue coincides with the construction timeline for this project.

8th Street streetscape: One neighbor raised her concern that 8th Street, NW would become a de facto alley for this project, with loading docks and insensitive design not unlike DC USA's treatment of Hiatt Place. While there will be loading docks, residential units will also be located on the upper floors of the project along 8th Street. The devil will be in the details for 8th Street - loading docks may move or become larger or smaller, drastically affecting the quality of the streetscape.


Conceptual rendering of Howard Town Center. Photo from the developers.

Although the developers stressed that their $150 million proposal shown Monday was preliminary, they also laid out an aggressive timeline for development despite the sluggish economy, with groundbreaking in one year and another 18 months until the project's completion. The developers said that they decided not to go through the Planned Unit Development process because it would have taken too much time, and the project is not seeking any zoning variances. PUDs give the public, through the Zoning Commission, an opportunity to improve the design and push for benefits for the community.

While an improvement for Georgia Avenue, the project as it stands barely meets the minimums for responsible development. Because the developer isn't planning a PUD, citizens will need to work hard to ensure the developer improves the product.

page/2

Development


Inclusionary zoning in 3... 2... 1...

The Fenty Administration has completed the last step to implement DC's inclusionary zoning law. Today's DC Register contains the "maximum rent and price schedule" (scroll to page 53), which computes the actual rents and purchase prices for units of various sizes that comply with the income thresholds in the law.


Inclusionary zoning's effect in a C-2-B district (added height).

Under the program, new residential developments of 10 units or more must to set aside 8-10 percent of the new housing for families making between 50 and 80 percent of area median income (AMI). For a family of four, that's a household income of $51,000 to $82,000.

To compensate developers, they are allowed to build about 20% more housing. In some zones, like neighborhood commercial corridors, that means higher lot occupancy, letting the building cover a bit more of the total lot. In row house neighborhoods, IZ allows projects to build more, slightly narrower townhouses than regular zoning requires (though the same size as many existing townhouses). And in districts with taller buildings, it lets developers add a bit of additional height. IZ won't apply in the low-density residential zones, or in two historic districts (Georgetown Waterfront and Historic Anacostia) where the IZ changes would have forced buildings that didn't fit with the existing historic neighborhood character.

A presentation from DHCD has more details. A 2006 presentation from OP is better at illustrating the program, though there have been some changes. For example, the original plan excluded R-2 zones (denser single-family detached and semi-detached houses), but IZ now applies there as well.

The Inclusionary Zoning law was first passed in 2006, but the Fenty Administration delayed implementation for about two years. That sacrificed many affordable units and in some cases forced developers to plan smaller buildings than they otherwise would have. Still, this program is better late than never, and joins similar programs in Montgomery, Fairfax, and Arlington Counties. This program will ensure that, as the economy recovers and residential construction picks back up, moderate-income families aren't completely left behind.

page/2

Development


One small step for inclusionary zoning

After months of inaction and 98 days beyond the Council's final, final, we're really serious this time deadline, the Fenty Administration has published final Inclusionary Zoning regulations in the DC Register. This is a big step toward actually implementing the law the Council first approved in December 2006.


Image by DCMatt.

If the administration follows through, then Inclusionary Zoning will go into effect in DC on August 13th, 2009. New development approved after that date will have to provide some, fairly modest amount of housing to people below the median level of income. There is still one more step, however: today's publication mysteriously omitted the Maximum Rent and Price Schedule, which gives the exact number of dollars in income a household needs to qualify for various categories of affordable housing. The Council's laws, including their most recent reiteration, required Fenty to publish not only the regulations but the schedule as well by February 6th, 2009.

Today's regulations specify that Inclusionary Zoning will not go into effect until 90 days after the publication of the rules (that's 90 days from today), or after the publication of the price schedule, whichever is later. That means that there's still the possibility for even longer delays.

This is an opportunity for the Mayor to correct what the Council Committee of the Whole called an "egregious ... flouting of the law." By August, he could make things right and put this behind him. Or, he could drag it out and keep breaking the law. Right now, it looks like he's serious about getting the job done. We'll be watching.

page/2

Development


Still not inclusionary: Council blasts Fenty's inaction

Another Friday, another DC Register with no Inclusionary Zoning regulations despite numerous laws requiring their publication.


Chairman Gray.

In their committee report (large PDF) from this year's budget and oversight hearings, the DC Council's Committee of the Whole lambastes the Mayor for still not publishing the regulations. After pointing out that the Council had given Fenty an extension to February 6, 2009 to publish regulations and April 7 for them to go into effect, it calls Fenty's inaction "an egregious example of the flouting of the law by the Fenty Administration."

Many affordable units never got built in numerous projects as a result of the delay. Since IZ gives developers the right to build extra floors in exchange for providing affordable housing, the city also lost potential housing units overall.

At the April 6, 2009, budget oversight hearing, OP Director Harriet Tregoning, in response to a question that had been asked at the February 26, 2009 performance oversight hearing on this matter, testified that approximately 140 inclusionary zoning affordable units have been lost due to the innumerable delays in the start of this program since October 1, 2007, when IZ implementation funds first became available. Examples of lost potential affordable mixed-income housing opportunities include:
  • 14th & U Street by-right development project: where at least 8 % of the 250 units would have been IZ affordable units, in Ward 2 on border w/Ward 1.
  • Fort Totten Square at Riggs Rd & South Dakota, by-right development: where at least 8% of the 1,000 units would have been IZ affordable units, in Ward 4.
  • Dorchester building on 16th St. NW added in Reed Cooke by-right: where at least 8% of the 99 units would have IZ affordable units, in Ward 1.
Although OP Director Tregoning testified that her latest information was that the IZ Final Rulemaking would be published "momentarily," the Committee at this juncture has no confidence that the executive will do so. This situation is an egregious example of the flouting of the law by the Fenty Administration - in this case a law designed to increase mixed income housing opportunities for low and moderate income residents throughout the District of Columbia.
Even some developers say that the delay is creating substantial uncertainty. They don't know how tall they can build future buildings or whether they will need to include affordable units. Uncertainty costs money. The administration should publish the regulations now. They should agree with themCouncilmember Fenty voted for the proposal in the first place. But even if they don't, they should do it anyway, because it's the law, and they're already 84 days overdue.
page/2

Government


Does Fenty believe in the "unitary executive"?

Most Americans were appalled by former President George W. Bush's disregard for the law. On wiretapping, torture, secrecy and more, his administration asserted that the President was, in essence, above the law. Even many Republicans found his repudiation of the republican form of government abhorrent.


Photo by KCIvey.

Mayor Fenty, however, seems to be pushing a similar "unitary executive" philosophy here in DC. At a recent appearance before the Kalorama Citizens' Association, he was completely unconcerned about ignoring at least one of the laws of the land.

Fenty seemed to repudiate the rule of law while discussing inclusionary zoning. This policy, which gives developers some extra density in exchange for a requirement to include a small amount of slightly more affordable housing, is the law. And the DC Council has made that absolutely, positively, unequivocally clear:

  1. In December of 2006, the Council passed a law "requiring the Mayor to promulgate rulemaking" implementing regulations approved by the Zoning Commission. Councilmember Adrian Fenty voted for the bill.
  2. In February of 2008, the Council passed another law requiring "that regulations ... be submitted to the Council by a time certain," in that case April 4, 2008. Mayor Fenty signed the bill.
  3. The Council reiterated their position the following month by upgrading the previous "emergency" bill to a "temporary"[1] one. Mayor Fenty signed this as well.
  4. The administration published draft regulations, which say that "final rulemaking action shall be taken in not less than sixty (60) days from the date of publication of this notice." It's been much, much more than sixty days.
  5. After months passed with no action, the Council passed another law in October 2008 requiring "that final rulemaking to implement inclusionary zoning ... be published by" December 5th. Mayor Fenty signed it.
  6. The Council then amended the law in November to give the Mayor some more time, until February 6th, and followed up that "emergency" bill by passing a "temporary"[1] version in December. The Mayor signed both bills.
  7. Congress wasn't in session long enough in the winter for the required review period before the emergency expired[2], so on February 3rd, they passed a "Congressional Review Emergency" act to extend the deadline. It did not require the Mayor's signature.
  8. On February 5th, the Mayor became in direct violation of the law. As far as I can tell, he will continue to be in violation through at least May 5th (the last day of a 90-day period beginning February 5th). Assuming the temporary retains the force of law[3], he'll stay in violation for many months beyond that as well.
Sources inside the Mayor's office told affordable housing advocates that they were just finishing up regulations, and would publish them on Friday, April 10. They didn't. We hear the Mayor is sitting on the regulations.

Now, it sounds like Mayor Fenty doesn't actually intend to publish them. Last Thursday, he spoke to the Kalorama Citizens' Association, where someone asked him about IZ. According to resident and ANC 1C04 Commissioner Mindy Moretti, whose ANC has passed a resolution in support of the policy,

The Mayor gave no indication when IZ would be implemented and also said that because the economy is different now than when IZ was first introduced that we may not need it in the form that it was approved. ... In my opinion, his answer was outrageous and unacceptable.
The Mayor is violating the clear, explicit law. The Council has made it abundantly clear, through numerous resolutions and bills, that it expects the Mayor to follow this policy. Yet he's flouting it today, and telling residents that he doesn't have any particular plans to implement it.

He's entitled to hold an opinion that the law is unnecessary or inappropriate, though we disagree. But he's not entitled to ignore properly passed laws. This isn't the Bush administration, and the Mayor can't decide which laws to follow and which to ignore. This isn't the only law the administration is ignoring. We've written twice about specific ways DDOT isn't following the performance parking law. Those are much more minor, but the overall principle remains the same: the law is the law.

Of course there is some room for interpretation, and often the executive writes specific regulations, but it must follow the law. If the Council passes a stupid law, then the Council should fix it. It's not appropriate for the Mayor or any executive agency to decide that obeying the law is too annoying or not worthwhile.

We already knew Mayor Fenty was imperious and disinclined to work with others. In some ways, that has been positive, as he broke through bureaucratic logjams in the administration of DC Public Schools. That's been generally popular, though some disagree with his approach. Sometimes, it's less heartening, like the Mayor's recent firing of DC Parks and Recreation Director Clark Ray, whom many residents thought was doing a terrific job. And sometimes, it's embarrassing, as with the Mayor's withholding of Nationals tickets from the Council. Kwame Brown introduced legislation today to auction off the Mayor's and Council's tickets.

I don't know about the law regarding the tickets, but all accounts emphasized how the Mayor had every right to fire Ray. It's one thing for the Mayor to act brash or even stupid. There's no law against having a certain leadership style. He's within his right to fire people, whether for good reasons or bad. But ignoring a clear law is another matter. The administration's refusal to let officials testify before the Council on issues such as the recent fire truck flap is similarly troubling.

Apparently some developers have been arguing to Mayor Fenty and Deputy Mayor Neil Albert that the law will discourage development. Of course, builders will likely argue that whether or not it's true. It's appropriate for our elected representatives, who certainly don't ignore the development industry, to strike that balance through public hearings and an open process. Our representatives have spoken. The Mayor should follow the law and implement the policy.

As long as this policy goes unimplemented, projects are getting approved that should include affordable housing, but won't. Numerous projects have won approval after IZ was supposed to go into effect, but didn't. Those now won't be providing more affordable units, even though in many cases the actual construction will wait until the economy recovers.

For its part, the Council should not take lightly this affront to their authority. If the Mayor can ignore a law that's about as clear as can be with impunity, he may well do so more frequently in the future. The DC Council should avoid the mistakes of the U.S. Congress through both Republican and Democratic control during the Bush years, when their inability to stand up for themselves emaciated the institution at great peril for our democracy. Mayor Fenty is not a dictator and we still live in a republic. The Council needs to make that abundantly clear.

1 An "emergency" bill only lasts for 90 days. The Council must first pass an "emergency declaration resolution" by a two-thirds supermajority, and can then pass a bill which becomes law immediately after the Mayor signs it. Congress doesn't have to review emergency acts. The Council can then pass a "temporary" act, which doesn't require committee hearings, but still goes to Congress, and can only last 225 days. More here. When the Council wants to pass permanent legislation but needs it to go into effect quickly, they will pass an emergency act which will begin right away, then a temporary to extend the clock, and use the temporary time period to hold full hearings and pass a regular, permanent bill.

2 Congress gets 30 days to disapprove any bill in DC except for emergency acts. If they're not in session for 30 days out of the 90 during the emergency period to approve the temporary, then the law could expire. When this happens, Council can pass a special type of emergency bill, a "Congressional Review emergency," to bridge the gap.

3 There's some question about whether resolutions containing deadlines stay lawful if the deadline passes before that resolution formally goes into effect. In this case, the temporary act didn't take effect until March 20, 2009, because Congress wasn't in session for the 30 days until then. That's after the original deadline. However, the deadline at least retained the force of law through the two emergency acts. If the temporary is not valid for some reason, it's an extremely narrow reading of the law that makes it so, and doesn't change the fact that the Mayor was and still is in violation of the letter, and will remain in violation of the spirit as long as he doesn't publish regulations.

Support Us

How can our region be greater?

DC Maryland Virginia Arlington Alexandria Montgomery Prince George's Fairfax Charles Prince William Loudoun Howard Anne Arundel Frederick Tysons Corner Baltimore Falls Church Fairfax City
CC BY-NC