656610 Zoning Commission Notice of Public Hearing: Case No. 08-06-15 (Comprehensive Zoning Regulations Review: Administration, Enforcement and Procedures)
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ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA
NOTICE OF PUBLIC HEARING
TIME AND PLACE: Thursday, February 17, 2011, @ 6:30 p.m.
Office of Zoning Hearing Room
441 4th Street, N.W., Suite 220
Washington, D.C. 20001
FOR THE PURPOSE OF CONSIDERING THE FOLLOWING:
CASE NO. 08-06-15 (Comprehensive Zoning Regulations Review: Administration, Enforcement and Procedures)
THIS CASE IS OF INTEREST TO ALL ANCs
This Notice of Public Hearing announces the fifteenth of several proposed subject areas the Zoning Commission for the District of Columbia (the “Commission”) will consider under this docket. All recommendations offered by the Office of Planning (“OP”) under this docket have been reviewed by a working group and a subject matter task force as part of a process designed to ensure full public participation. Nevertheless, this process cannot replace or limit the public hearing process required in the Zoning Act or the Commission's responsibility to consider the merits of each proposal submitted.
This hearing will consider general recommendations for conceptual changes to the Zoning Regulations regarding general administration and enforcement as well as Zoning Commission (“ZC”) and Board of Zoning Adjustment (“BZA”) procedures. Specifically, these recommendations apply to topics regulated by Chapters 20, 25, 30, 31, and 32 of the Zoning Regulations. The recommendations propose changes to BZA and ZC policies as well as other miscellaneous administrative zoning regulations.
This hearing, like all others under this case number, is being scheduled without adherence to the set-down requirements stated at 11 DCMR § 3011 because the Commission waived the requirement at its public meeting held April 14, 2008. The Commission also waived the requirement that a pre-hearing statement be submitted before hearing notices can be published.
It is not expected that the Commission will take proposed action with respect to these recommendations, but that it will make determinations at a public meeting that will serve as guidance for drafting revisions to the Zoning Regulations pertaining to these subject matters. Full analysis and more detailed information on the recommendations can be found in the OP report document at http:// www.dczoningupdate.org/medhighdensity.asp.
The Office of Planning seeks the Zoning Commission’s guidance as to the following:
Recommendation 1: Create a requirement that the Chairperson of the Zoning Commission (“ZC”) and Board of Zoning Adjustment (“BZA”) be one of the three District resident Mayoral appointees of each body.
Pursuant to the Zoning Act, the “Board of Adjustment shall choose its Chairman and its other officers” and the Chairperson of the Zoning Commission “shall be selected by the members.” As a common practice, this requirement has been interpreted such that the ZC and BZA elect as their Chairperson one of the District resident mayoral appointees.
This proposed change to the regulations would codify this common practice. The Working Group expressed a perception of too much federal involvement in zoning processes in the District. Inserting in the regulations the mandate of electing District resident Mayoral appointees to chair the two zoning bodies would respond to this concern, and ensure that a future ZC or BZA elect as leader one of the Mayoral appointees, who unlike the federal representatives must be District residents.
This change is particularly important because the Chairperson of each body is responsible to testify before the District City Council pertaining to the performance and budget of the Office of Zoning and participate in hiring and oversight of the Director of the Office of Zoning and, by extension, the Office of Zoning staff.
This recommendation would not impact the Vice Chairperson of the ZC and BZA, who could still be a federal representative. A federal Vice Chairperson may be necessary in the case of vacancies.
Recommendation 2: Remove the requirement that individuals wishing to testify in a ZC or BZA case where public testimony is permitted identify whether they are in support of or in opposition to the case. Such witnesses are to testify after the parties have completed their cases.
Individuals often wish to discuss neutral aspects of an application or petition when testifying before the ZC or BZA. The current practice requires that they fill out a witness card in which they identify themselves as either in favor of or in opposition to the application or petition. The individuals are then called upon to testify as part of those in favor or those in opposition. This can cause consternation for those who wish to express general support while raising concerns, or general opposition while supporting components, as well as those who simply wish to comment without indicating an overall opinion in the case.
There is no necessity for requiring individuals to identify a polarized position in cases before either body. Rather, testimony would be heard first from parties in support of the case, followed by parties in opposition to the case, and finally from all public witnesses. Such public witnesses could identify positive and negative aspects of a case or simply testify as neutral and provide general comments, including clarifying statements, without concern as to whether they support or oppose the overall case.
This process would not apply to a BZA Appeal, in which only the parties may present testimony.
Recommendation 3: Clarify that the ZC can determine, at its sole discretion, to hear any case that the BZA can hear.
The ZC has historically interpreted the Zoning Act to allow it to grant the same types of zoning relief as may be granted by the BZA. For example, in 2000, the Commission gave itself jurisdiction over campus plans and related special exceptions. (11 DCMR § 3035.) In addition, the regulations governing the various building and use reviews in the Capitol Gateway and Southeast Federal Center Overlays, as well as the Hill East District, permit applicants to seek any other zoning relief required for their projects. (11 DCMR §§ 1610.7, 1809.1, and 2801.3.) Further, PUD zoning flexibility in essence equates to area variances and the PUD regulations themselves authorize the Commission to grant special exceptions.
In addition to these codified authorizations, the Commission has, on occasion, granted zoning relief in conjunction with a map or text amendment for a project that would also require a special exception or variance. (See Zoning Commission Order No. 09-17 (granting an application to zone property to be used for a District of Columbia Public Library from unzoned to R-5-A and granting a needed special exception) and Zoning Commission Order No. 02-30 (granting application to zone property to be used for the Georgetown Boathouse from unzoned to W-0 and granting needed variance and special exception request).) However, the Commission has not, as far as can be told, considered a special exception or variance when a companion zoning case was before it.
This authority to consider special exception or variance relief needed for a specific project that is also the subject of a text or map amendment is not expressly identified in the regulations.
The public should understand the availability of zoning relief under these circumstances and it should be clearly stated that the discretion lies with the ZC to decide to hear a case. Thus, as is presently the case, an applicant for a map amendment or a petitioner for a text amendment needed to construct a building or establish a use should be able to request that the ZC authorize the Office of Zoning to accept an application for any associated special exception or variance relief needed. However, the decision whether to consider that relief will be in the sole discretion of the ZC and no such requests may be made when there is no pending ZC proceeding related to the property.
Recommendation 4: Allow affected ANC(s) to submit an ANC Setdown Form prior to a ZC Setdown Meeting in all contested (or potentially contested) cases, in which the ANC(s) can provide comments on particular items related to the proposed project.
At the time the ZC considers whether to set a contested (or potentially contested) case down for public hearing, OP is required to submit a report and recommendation to the ZC. A “potentially contested case” is a request for a map amendment with attributes associated with both a contested case and rulemaking proceeding. Affected ANC(s) have no vehicle at this stage to voice their opinions on behalf of neighbors to a proposed project, other than through OP. There has been concern expressed that information they feel is valuable to the ZC cannot be considered until the public hearing.
The ANC Setdown Form would allow affected ANC(s) to specifically comment regarding:
1. Whether the case should be set down for hearing based on whether it is “not inconsistent” with the Comprehensive Plan;
2. Whether the case should be set down as contested or as a rulemaking; and
3. Whether there are items the Commissioners should ask to be addressed at the hearing or by the time of the hearing.
The comments made in a filed ANC Setdown Form would not technically be afforded “great weight,” although it would be expected for the Commission to acknowledge the affected ANC(s) as the provider of the form and to address each of the relevant comments provided. Further, the affected ANC(s) would not be permitted to offer oral comments during the setdown proceeding, unless called upon by the ZC. The form simply allows for specific written comments.
At the time of filing an application in a contested (or potentially contested) case in which setdown is required, the applicant would be required to separately serve the affected ANC(s) a copy of the application and a blank ANC Setdown Form. In order to allow sufficient time for the affected ANC(s) to meet prior to setdown to consider whether to complete and submit the ANC Setdown Form, setdown would not occur less than 35 days from the date the application was filed.
The Commission would not be authorized to delay considering whether to setdown a case because of a failure of the affected ANC(s) to file an ANC Setdown Form, and no requests by an ANC for an enlargement of time would be accepted. Thus, there is no concern that this new provision will impede the progress of the case.
Recommendation 5: Require applicants in ZC cases to submit an Affidavit of Maintenance of Posting between two and six calendar days prior to the ZC Hearing.
Currently, an Affidavit of Posting is required to be filed thirty calendar days prior to a ZC hearing. After that point, no further written evidence is required that the applicant has properly maintained the posting. Thus, if the posting is removed or damaged, the ZC has no way of ensuring that interested individuals who view the property are notified of the pending case in that manner.
To ensure that the posting remains in place during the time leading up to the hearing, the regulations should require that the applicant submit an Affidavit of Maintenance of Posting between two and six calendar days prior to the ZC hearing. This time frame will ensure that interested individuals are notified. Further, because the affidavit will be due prior to the hearing, it provides the Office of Zoning an opportunity to contact the applicant if it is not timely received to accept a waiver request form for the ZC to consider at the hearing.
Recommendation 6: Add language regarding ethical requirements of Commissioners and Board Members.
Currently, there is no ethics section in the ZC or BZA rules discussing disqualification or disciplinary responsibilities of Commissioners and Board Members. It is critical that rules pertaining to disqualification and disciplinary responsibilities be codified to preserve the integrity of the zoning process. The Conduct for the District of Columbia Courts (1995) provides Canons that should be used as a model.
Recommendation 7: Clarify the ability of the ZC and BZA to stay a final decision pending appeal.
Rule 18 (a)(1) of the Rules of the District of Columbia Court of Appeals provides that “[a] petitioner must ordinarily move first before the agency for a stay pending review of its decision or order.” At times, the ZC and BZA have considered motions to stay made pursuant to this rule. However, the power to grant such stays is not enumerated in the regulations. This should be articulated, along with the four-part test that provides the parameters that each body uses to make such a determination. Pursuant to existing case law (See Kuflowm v. District of Columbia Bureau of Motor Vehicle Services, 543 A.2d 340, 344 (D.C. 1988)), the stay test looks to the following factors to determine whether a stay is warranted: (1) whether there is a substantial likelihood of success on appeal; (2) whether the denial of the stay would result in irreparable injury (financial damages are not considered irreparable); (3) whether granting the stay would prejudice other parties; and (4) the public interest.
Recommendation 8: Reorganize Chapter 20 to separate Nonconforming Use and Structure regulations.
Chapter 20, which governs nonconformities, has significant overlap between rules for structures and rules for uses. This can be seen by reviewing the table of contents for the chapter:
2000 General Provisions
2001 Nonconforming Structures Devoted to Conforming Uses
2002 Nonconforming Uses Within Structures
2003 Changing Uses Within Structures
2004 Destruction of Structure Devoted to Nonconforming Uses
2005 Discontinuance
The text of each section further shows the overlap between the two concepts.
The interweaving of different issues within Chapter 20 makes the chapter harder to understand than it needs to be. Working Group members concurred with OP’s suggestion that the chapter should be made less confusing and felt that separating rules for structures from rules for uses would simplify the text.
This recommendation would result in the separation of the two categories of rules. One set of rules would apply to nonconforming structures, irrespective of the use they contain, and another would apply to nonconforming uses, irrespective of the structure they are within.
Pursuant to the overall Zoning Review goals of clarity and ease of use, providing rules for uses alone and structures alone will make this chapter more user-friendly. This aim would be consistent with earlier direction established in the Zoning Review of separating structures and uses in the regulations.
Recommendation 9: Delete § 2001.3(a), which states that the existing building must be conforming with lot occupancy.
Section 2001.3 governs when enlargements may be made to nonconforming structures. The section has three main provisions. Additions may be made to the structure provided:
1. The existing structure conforms to lot occupancy;
2. No existing nonconformities may be expanded; and
3. No new nonconformities may be created.
This provision is problematic because standards for lot occupancy, the one particular criterion called out in the section, are not reflective of the existing built form of the city and its neighborhoods. The current standards for lot occupancy were developed as averages for the zones over the entire city. The average does not recognize the variable size of residential lots, especially those created by DC’s angled avenues. In fact, 18% of buildings in the R-1 through R-5-B zones are over lot occupancy limits. That situation is especially acute in the R-4 through R-5-B zones, where 33% of buildings are over lot occupancy.
Owners of those properties, even if making modest additions that do not increase any other nonconformity, would need to seek zoning relief from the BZA. Special exception relief under § 223 allows homeowners to increase lot occupancy to 50% or 70%, depending on the zone. But in the R-3 and R-4 zones, almost 7% of homes already exceed the § 223 allowances and must seek a variance for any structural expansion. Applying the variance standard in these circumstances have proven difficult, because usually there is nothing exceptional about the property other than its nonconforming lot occupancy, or if there is an exceptional condition, such as an unusual slope, it has nothing to do with the inability to construct the addition.
This situation is borne out by BZA data, which shows that 10% of all BZA cases request relief from § 2001.3, and of those, 56% also request lot occupancy variances. Both the Comprehensive Plan and the Zoning Regulations anticipate homeowners to be able to make reasonable improvements and expansions to their homes, and do so where possible without significant extra procedural hurdles such as seeking BZA relief.
This change would allow homeowners whose property is already over lot occupancy to make vertical additions that do not increase that nonconformity. Any additions permitted by this change would be limited to the matter-of-right building envelope.
Recommendation 10: Require changes of nonconforming uses between use categories to first obtain approval of the BZA. Utilize evaluative criteria similar to those currently in § 2003.
Section 2003 allows a property owner to switch from one nonconforming use to another nonconforming use, given certain review criteria. An applicant must apply to the BZA for special exception approval. The BZA must find that the new use will not “adversely affect the present character and future development of the surrounding area”, including noise, traffic, parking, loading, light, and other impacts. (§§ 2003.2 and 2003.3.)
The main criterion, however, is that the new use must be permitted as a matter-of-right in the same zone in which the existing nonconforming use is first permitted as a matter-of-right. This system is predicated on the fact that uses in the current regulations follow a hierarchy whereby uses allowed in a more restrictive zone are allowed in the next less restrictive zone, with a few additional uses allowed. The uses in that zone, then, are also allowed in the next less restrictive zone, plus a few additional uses, and so on.
The intent of § 2003 is sound – to ensure that any new nonconforming use has equal or lesser impacts than the previous nonconforming use. The current tool employed by § 2003, however, the hierarchical use lists in the current regulations, will be replaced by a use category system. In the use category system, uses do not increase in intensity with the zones, so zones cannot be used to determine which use has more or less impacts.
This proposal would keep the same intent as the existing system. The BZA will have the ability to review and judge the impacts of the proposed use relative to the preceding use, and ensure that the new use has equal or lesser impacts. A public hearing before the BZA also gives the community an opportunity to comment on the proposed use and its impacts.
The Working Group was concerned that nonconforming uses within the same use category could change but that they would not be reviewed by the BZA. Under the use category system, a retail operation, for example a book store or toy store, is simply categorized as “Retail”. The precise use can change, say from book store to toy store, without review if there is no expansion.
Recommendation 11: Create a new section to address rules for “Nonexpandable Conforming” uses.
Certain uses in the Zoning Regulations are not permitted as new uses, but where they already exist they are considered conforming. And although considered conforming, they cannot expand in size. Examples of this type of use are hotels in the R-5 zone (§ 350.4(d)) and Pepco facilities in certain areas formerly zoned industrial. Another example is found in the Capitol Gateway Overlay, where the text states that any existing industrial uses are considered conforming, but may not expand (§ 1611).
This situation typically resulted due to an area being rezoned or, in the case of the hotels, when use permissions changed. In order to obtain insurance or financing, these uses must retain their conforming status. The District accommodates them by calling them conforming under the Zoning Regulations, while limiting their ability to expand.
The Working Group was concerned that some of these uses were expanding, although the intent is that they only be allowed to renovate or modernize. And while the Zoning Regulations address these uses on a case-by-case basis, there is no one location in the regulations that gives clear guidance to these uses. Furthermore, although they are often called “grandfathered”, these types of uses do not have a clear designation in the regulations.
The name “non-expandable conforming” accurately describes the nature of these uses. Although they have sometimes been called grandfathered uses, that colloquial term probably more accurately describes nonconforming uses. Non-expandable conforming uses are different than nonconforming uses in that they can rebuild if destroyed by a fire or other catastrophe. Currently nonconforming uses cannot resume if the structure they are in is destroyed by more than 50%.
A new standardized section is necessary to simplify the regulations. Current rules for non-expandable conforming uses are dispersed throughout the Zoning Regulations. The proposed section would likely not be located in Chapter 20 since that chapter is dedicated to nonconformities.
Recommendation 12: Clarify that a record lot is required to obtain a building permit on an alley lot, and that if the lot does not meet minimum dimension standards that a variance is required. Modify § 401.6 to state that any record lot created on an alley must meet minimum frontage standards on the alley.
An examination of alley lots reveals that they are a mix of lot types. Some are record lots. Some alley lots are tax lots on top of a larger record lot that also contains other structures besides the alley structure. Some are tax lots that overlay two different record lots. Some are tax lots with no corresponding record lot whatsoever. In short, many alley buildings exist today on tax lots without an appropriate corresponding record lot.
Section 3202.3 of the Zoning Regulations states that no building permit shall be issued for a structure unless that structure is on its own record lot. In the case of alley lots, with their patchwork of overlapping tax and record lots, many building permits have been issued for lots that do not meet the requirement of § 3202.3.
Although already stated in § 3202.3, the regulations should be more clear that a record lot is necessary to obtain a building permit. The regulations should also prevent, to the extent possible, the creation of new alley lots. While the District’s existing alley lots are a potential resource for the city, new alley lots should not be created because alleys tend not to be served by electricity, water and sewer, and are more difficult to be served by emergency services. Section 401.6 requires new record lots to have street frontage. A similar requirement could be put in place for record lots fronting on alleys.
Recommendation 13: When modifying an approved § 2516 application, an individual homeowner may apply for an expedited review.
Section 2516 allows, by special exception, more than one building on a residential record lot. This section is often used to develop residential subdivisions consisting of many individual homes. During review of such a project, the BZA or ZC consider the development as a whole, including factors such as open spaces, traffic, urban design, public safety, environmental impacts and others.
The Working Group raised the question of what process should apply when an individual homeowner within a development built pursuant to § 2516 seeks a modification to their house. The Working Group did not want any modification process to be too onerous to the homeowner.
Section 2516 cases are approved as one unit and must therefore be modified as such. For simple additions to single family houses, however, the modification review should be conducted as quickly and easily as possible for the homeowner. The expedited review process could be used in these cases to facilitate a relatively simple process that could be approved in a shorter timeframe than typical modification cases. Currently expedited review is only used on two types of applications. But the domain of expedited review can be expanded where appropriate.
Recommendation 14: Exempt from the § 2516 process institutions reviewed through the special exception or campus plan process.
In residential zones, any use that requires multiple buildings on a single record lot must first obtain approval under § 2516. The Working Group recommended that this requirement be lifted for institutional uses such as universities or private schools.
As a result of the Institutions Working Group, OP recommended that any institution in a residential zone be required to have a campus plan or special exception review, depending on the size of the institution. These reviews would examine criteria very similar to § 2516 evaluations – items such as traffic, open spaces and urban design. A further review under § 2516, therefore, is not necessary. To enact this recommendation, an amendment to § 3202.3 would be required. That section requires a record lot for each individual structure. But exceptions have been made in the past for WMATA structures, waterfront uses and the trapeze school near N and 4th Streets, S.E.
Recommendation 15: Clarify that the land area of private rights-of-way may not be used in FAR calculations.
Section 2516.6(a) states that in calculating density the private right-of-way (ROW) “shall not be included in the area of any theoretical lot, or in any yard that is required by this title”.
The above-referenced section would seem to exclude the area of the street from any FAR calculations, but in the past PUD applications have included the land area of private ROWs as part of the general land area when calculating the FAR of the entire development and have not excluded the private ROWs. This results in a lower FAR calculation for the PUD than would otherwise result. The Commission made a clear statement that they would no longer accept this interpretation and asked OP to clarify the issue as part of the review of the Zoning Regulations.
Public ROWs, of course, are not counted toward land area for FAR calculations. When private ROWs are counted, the result is a higher actual floor area for the development with private streets than a comparable development with public streets. For example, consider two developments, both with equal total land area and total ROW area:
The above calculations show that a greater amount of floor area can result in the same computed FAR if the ROW land area is not taken out of the equation.
Recommendation 16: For applications under § 2516, limit circumstances where private drives are permitted in order to ensure safety. Standards should be based on provision of public utilities and road engineering standards.
Developments built pursuant to an approval under § 2516 often use private streets to access residences. The ability to locate more than one building on a single record lot means that public streets are not necessary within the boundaries of the project. Developers have chosen to prefer private streets for two reasons. One, § 2516 mandates a private ROW of only 25 feet, and until recently, the District could only accept public ROWs of 55 feet or greater. In 2008, the City Council passed legislation allowing the Mayor to accept more narrow ROWs. The second reason developers often pursue private streets, as expressed by Working Group participants, is that the street dedication process takes too long.
The prevalence of private streets has raised concerns about the amount of privately maintained infrastructure throughout the city. It is unclear whether private infrastructure such as fire hydrants, water and sewer lines, and the roadways themselves are being maintained at a level suitable for use by emergency services. It has been documented that not all fire hydrants in the city operate properly, and in discussions with OP, FEMS officials said that this problem is especially acute with privately maintained hydrants. Officials were also concerned about access on narrow streets where parked cars may render the roadway virtually impassable to larger emergency vehicles.
By creating standards for where private drives are permitted, public safety will be enhanced. In addition, public streets insure public ownership and maintenance of utilities which will free homeowners’ associations from having to maintain expensive infrastructure. OP will continue to work with DDOT, FEMS, and other relevant agencies to determine which specific standards are appropriate to ensure safety. For example, previous discussions have suggested limiting the number of homes on a private street. OP will review appropriate standards for the number of homes. OP will also review with several agencies what minimum clear roadway widths would ensure the free movement of emergency and public service vehicles.
Recommendation 17: Work with the Zoning Administrator (“ZA”) to:
1. Consolidate flexibility standards, to the extent practicable, into one location in the regulations;
2. Establish consistency between flexibility across different types of orders; and
3. Determine any criteria by which requests for flexibility should be evaluated.
During building permit review, the ZA has the ability to grant slight flexibility to dimensional standards in the regulations. The parameters for the flexibility are described in §§ 407 and 2522. Pursuant to § 2409.6, the ZA can also grant slight flexibility from the numerical standards established by the Commission during a planned unit development review. The flexibility is not to exceed the greater of two percent (2%) or twelve (12) inches as relevant.
The above-referenced sections are dispersed throughout the regulations, making the regulations more difficult to use. Sections 407 and 2522 apply to matter-of-right building permit applications, while § 2409.6 deals with building permits filed pursuant to PUD reviews. But there are no sections permitting flexibility in the review of building permits filed pursuant to BZA orders or ZC design review cases. Lastly, the regulations provide important, but not detailed, guidance to the ZA on what standards he should use to determine if flexibility is appropriate. These changes would provide consistency and predictability throughout the regulations.
Combining the matter-of-right flexibility standards into one section would simplify the regulations, meeting one of the overall goals of the Zoning Review. It is possible, however, that the PUD flexibility would stay in the PUD chapter, so that all PUD-related regulations can remain together.
Currently the regulations say that the ZA may grant flexibility if “the deviation or deviations will not impair the purpose of the otherwise applicable regulations.” (§ 2522.1.) The intent of that statement is sound, but in application it is somewhat vague. Providing the ZA with more specific review criteria would help him determine if the flexibility meets the intent of the regulations. Giving the ZA authority to grant minor flexibility during the review of building permits, approved pursuant to BZA orders, would prevent unnecessary BZA hearings or reconsideration.
The Working Group asked that the ZA be required to consult with, accept comments from, or notify the community when he is considering granting flexibility to a nearby property owner. OP does not recommend this. The ZA has been empowered to make judgments of this type, and the process is not intended to be a public hearing, nor is the ZA meant to have an adjudicatory role between parties.
Recommendation 18: Institute a two-year sunset clause for setdowns.
Currently, there is no expiration of any zoning case once it is set down by the ZC. Thus, a case stays active with no requirement for action by the applicant.
In some rare cases an application that is setdown is never scheduled for a public hearing. This can be problematic for map amendment cases, where the properties subject to the amendment must operate under the more restrictive of the existing zone or the proposed zone. Within normal time frames this is a logical condition, but over the course of years, the imposed zone can create uncertainty for property owners.
Under this proposal, the action of the Commission to set a case down would expire two years from the date of their action if the applicant has not filed a prehearing statement to schedule a hearing. If an applicant wants to proceed forward after the expiration, a new application would need to be filed for consideration by the Commission, requiring filing fees and new report by OP. A sunset clause would give a level of certainty to the affected ANC, general community, and property owners regarding the allowed uses on the property, the applicable bulk regulations, as well the processing of building permits and certificates of occupancy. The community and owners would understand that if not eventually approved, a proposed but unapproved zone change would not impose rules on their properties for a period of more than two years.
The proposed two-year duration would be the same as most approvals or permits, including building permits, PUD orders, and BZA orders.
Recommendation 19: Describe which building permits vest the Zoning Regulations for a property – specifically the following types of building permits under 12 DCMR § 105.1.4:
1. New construction, including constructing, adding to, or moving a building or structure;
7. Erect or replace an awning, canopy, tent or other membrane structure, or similar structures as a principal structure;
9. Erect a radio, television or other telecommunications tower;
13. Change of use or occupancy, increase in load or modification of floor layout of the building or structure.
Section 3202.5 governs how building permits are processed when the Commission is considering a change in the zoning of the property. If a building permit application is submitted on or before the date when the Commission sets down the zoning change, the application may be processed under the existing zone. The property is considered vested in the existing zone, and if the building permit is part of a larger project, the entire project may proceed under that zone.
If, however, the permit application is submitted after setdown, the permit may be processed, but only under the more restrictive of either the existing zone or proposed zone.
In 12 DCMR, the Building Code, building permits are broadly defined. Building permits are required for major undertakings such as the construction of a new building, but are also required for minor actions such as the erection of a fence or retaining wall, or the installation or removal of an underground storage tank. (12 DCMR § 105.1.4.) Based on the existing language of the regulations, a property owner need only apply for a relatively minor building permit to vest their property and proposed project in the existing zone, when in reality the project may not be constructed for several years. The District would like to allow vesting only when relatively significant actions result from the issuance of a building permit.
This change would identify certain building permits that result in significant actions that would vest property owners in a previous zoning classification. The four identified permits either establish a new use as a principal use or establish the erection of a new structure as a principal structure.
Many types of building permits do neither. Items like repairing a building, building out an interior layout, erecting a retaining wall or fence, or installing an underground storage tank are not major actions and in many cases would not even involve zoning.
PROCEDURES
The public hearing on this part of Case No. 08-06 will be conducted as a rulemaking in accordance with the provisions of § 3021 of the District of Columbia Municipal Regulations, Title 11, Zoning. The Commission will impose time limits on testimony presented to it at the public hearing.
All individuals, organizations, or associations wishing to testify in this case should file their intention to testify in writing. Written statements, in lieu of personal appearances or oral presentations, may be submitted for inclusion in the record.
Information should be forwarded to the Secretary of the Zoning Commission, Office of Zoning, Suite 200-S, 441 4th Street, N.W., Washington, D.C. 20001. Please include the number of the particular case and your daytime telephone number. FOR FURTHER INFORMATION, YOU MAY CONTACT THE OFFICE OF ZONING AT (202) 727-6311.
ANTHONY J. HOOD, KONRAD SCHLATER, GREG M. SELFRIDGE, PETER G. MAY, AND MICHAEL G. TURNBULL -------- ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA, BY JAMISON L. WEINBAUM, DIRECTOR, AND BY SHARON S. SCHELLIN, SECRETARY TO THE ZONING COMMISSION.
