1842629 Zoning Commission Notice of Final Rulemaking & Order No. 10-19 (Map and Text Amendments – H Street Northeast Neighborhood Commercial Overlay)
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ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA
NOTICE OF FINAL RULEMAKING
AND
ZONING COMMISSION ORDER NO. 10-19
Z.C. Case No. 10-19
(Map and Text Amendments – H Street Northeast Neighborhood Commercial Overlay)
September 12, 2011
The Zoning Commission for the District of Columbia (Commission), pursuant to its authority under § 1 of the Zoning Act of 1938, approved June 20, 1938 (52 Stat. 797; D.C. Official Code § 6-641.01 (2008 Repl.)); hereby gives notice of adoption of the following amendments to the Zoning Map and conforming text amendments to the Zoning Regulations of the District of Columbia, DCMR Title 11. A Notice of Proposed Rulemaking was published in the D.C. Register (DCR) on April 22, 2011, at 58 DCR 3512. The amendments shall become effective upon the publication of this notice in the D.C. Register.
Description of Amendments
The amendments all relate to property located near the eastern end of H Street, N.E, where it intersects with Florida Avenue, Maryland Avenue, Bladensburg Road, Benning Road, and 15th Street. The area is depicted on the map attached to the January 21, 2011, Office of Planning report (OP Map). The OP Map is attached as an appendix to this notice, and divides the affected properties into numbered areas. These numbered areas will be referenced throughout this Order.
The amendments made to the Zoning Map are as follows:
Square
Lots
OP Map
Designation
Map Amendment
1026
0100, 0101, 0102 and 0103
Area 3
C-2-A to HS-A/C-2-A
0065, 0066, 0173, 0177, 0835 and 0836
Area 5
C-3-A to HS-A/C-3-A
1027
0141, 0142, 0143, and 0849
Area 2
C-3-A to HS-A/C-3-A
1027
0804, 0840, and 0841
Area 2
C-3-A to HS-A/C-2-A
1049
0019, 0020, 0021, 0803 and 0809
Area 2
C-3-A to HS-A/C-2-A
1050
0007, 0008, 0009, 0010, 0011, 0014, 0015, 0016, 0022, 0026, 0027, 0028, 0029, 0030, 0031, 0033, 0035, 0036, 0803, 0806, 0807, 0809, 0812 and 0813
Area 2
C-3-A to HS-A/C-2-A
4509
0157 (portion)
Area 1
C-2-B to R-5-C
Reservations
OP Map
Designation
Map Amendment
15P, 15Q, 15R and 213
Area 2
C-3-A to HS-A/C-2-A
The Commission adopted conforming amendments to § 1320, which identifies the properties included in the Overlay and its sub-districts, to include the new properties and to § 1324.7, 1324.8, and 1324.10, to apply their design requirements to the new properties to the extent applicable.
The Commission also voted to amend § 1324.12, which, as currently written, requires that the ground floor of each building in the Overlay have a uniform minimum clear floor-to-ceiling height of fourteen feet (14 ft.). At present, the only buildings subject to this requirement are those that front H Street, N.E. Those buildings are also subject to the designated use provisions of § 1302, which require at least fifty percent (50%) of their ground floor be occupied by certain retail, service, and arts uses (although residential uses count toward this requirement in HS-H). The new areas added to the Overlay would not be subject to these ground floor commercial use requirements, and therefore a property owner could opt to construct ground floor residential uses. Therefore, the amendment to § 1324.12 only imposes the ground floor floor-to-ceiling minimum height requirement on those Overlay properties not fronting H Street that voluntarily comply with the commercial use designation provisions.
Procedures Leading to Adoption of Amendments
This case was initiated by the District of Columbia Office of Planning (OP) by filing a report that served as a petition on July 16, 2010. The Commission voted to set down OP’s proposal for hearing at its July 26, 2010 public meeting. When the Commission voted to set down the case, it waived its normal rule requiring posted notice of the hearing on the street frontage of each square affected, 11 DCMR § 3014.3, and its rule requiring a separate pre-hearing filing by the petitioner, 11 DCMR § 3013, so that the OP setdown report could also serve as the required pre-hearing filing.
In all other respects, notice of the hearing was provided pursuant to 11 DCMR § 3014. Notice was also given to Advisory Neighborhood Commissions (ANC) 5B and 6A pursuant to § 13(b) of the Advisory Neighborhood Commissions Act of 1975, effective March 26, 1976 (D.C. Law 1-21; D.C. Official Code § 1-309.10(b) (2006 Repl. & 2011 Supp.)).
On September 21, 2010, ANC 6A submitted a written report indicating that the ANC voted to support the rezoning case set down by the Commission. The report further recommended that the Commission also rezone additional properties that were not included in the case as it was set down. A full discussion of the issues and concerns expressed in the ANC’s report appears later in this Order. ANC 5B did not provide a written comment.
A public hearing was scheduled for and held on November 1, 2010. ANC 6A testified in support of the OP petition, and repeated its recommendation that the Commission add a number of properties to the case. At the conclusion of the hearing, the Commission ordered re-advertisement of the case, this time including the additional properties requested by ANC 6A. The Commission also instructed Office of Zoning staff to provide notice of the hearing by mail to the owners of all properties within the affected areas.
The expanded case was then re-advertised for a public hearing on January 3, 2011. As before, notice was provided pursuant to 11 DCMR § 3014, but the street frontage of affected squares were not posted. Additional notice was provided by mail to all affected property owners.
On December 24, 2010, OP submitted a second report. The report recommended that the Commission approve the originally advertised map and text amendments, and deny the additional map and text amendments requested by ANC 6A.
On January 3, 2011, the Commission held its second hearing on the case. At the hearing, OP testified in support of the recommendations made in its original report. ANC 6A testified in support of the case as proposed by OP, and in support of the additional amendments recommended in its report. ANC 6A made two changes to the recommendations made in its September 21 report. It withdrew its recommendation to rezone the properties in Square 1026 located at the corner of H Street and 14th Street (Area 6 in the OP Map). It amended its recommendation regarding the properties along Florida Avenue and 14th Street (Area 5 on the OP Map) by stating that in addition to supporting its original recommendation, it also supported extending the Overlay to Area 5 without rezoning the area from C-3-A to C-2-A.
At the conclusion of the hearing, the Commission requested additional OP analysis regarding impacts of the proposed zoning changes on the various properties.
On January 21, 2011, OP submitted a third report containing additional analysis of all the advertised zoning changes.
At a public meeting held on February 7, 2011, the Commission voted to:
- Approve the rezoning recommended by OP in its original report (Areas 1 and 2);
- Approve the rezoning recommended by ANC 6A (and opposed by OP) for the properties located in Square 1026 that front on 13th Street (Area 3 on the OP Map) from the C-3-A Zone District to HS/C-2-A Zone District;
- Deny the rezoning recommended by ANC 6A for Square 1026, alley lot (Area 4 on the OP Map);
- Deny the rezoning recommended by ANC 6A for the properties located in Square 1026 that front on Florida Avenue (Area 5 on the OP Map) from the C-3-A Zone District to the C-2-A Zone District, but approve the ANC’s recommendation to include the properties in the H Street Overlay (which was opposed by OP) so the new zoning would be HS/C-3-A;
- Took no action on the properties located in Square 1026 at the corner of H Street and 14th Street (Area 6 on the OP Map) because the ANC 6A withdrew its recommendation to rezone them; and
- Deny the rezoning recommended by ANC 6A for Square 1027, multiple alley lots (Area 7 on the OP Map).
In addition, the Commission directed OP and the Office of the Attorney General (OAG) to revise the advertised text amendments to conform to the actions taken by the Commission. The second public hearing notice contained two sets of text. The first set of text would be used if the Commission fully accepted OP’s recommendation. The second alternative text would be used if the Commission fully accepted the recommendations of ANC 6A. Because the Commission accepted some, but not all of the each of these sets of recommendations, the two sets of text had to be combined and revised to comport with the Commission’s actions. In taking proposed action, the Commission authorized the referral of the map amendments and the conforming text to the National Capital Planning Commission (NCPC) and the publication of a notice of proposed rulemaking in the DC Register.
NCPC, through a delegated action dated April 28, 2011, found that the proposed text amendments would not adversely affect the identified federal interests, nor be inconsistent with the Comprehensive Plan for the National Capital. (Exhibit No. 27.)
The Notice of Proposed Rulemaking was published in the D.C. Register on April 22, 2011, 58 DCR 3512, for a 30-day notice and comment period.
On May 12, 2011, OP submitted a supplemental report requesting that the Commission delay taking final action on the proposed map and text amendments so that OP could analyze a development proposal concerning certain property located in Area 2 of the OP Map.
On September 2, 2011, OP submitted a second supplemental report. The report recommended that the Commission include Lots 141, 142, 143, and 849 in Square 1027 in the Overlay as advertised in the proposed rulemaking notice, but not rezone them to the C-2-A Zone District as advertised, and instead to retain the underlying C-3-A Zone District. The report stated that the owner of the lots was negotiating with a contract purchaser who plans to redevelop the properties. The contract purchaser advised OP that its planned redevelopment would exceed the maximum floor area ratio (FAR) permitted on the site if the Commission adopted the proposed C-2-A zoning. The contract purchaser further advised that the planned redevelopment would be consistent with the H Street Overlay regulations and design standards, and it had agreed to place a restriction on the property that would limit the potential density to 3.4 FAR.
At a public meeting on September 12, 2011, the Commission considered the second supplemental OP report, and took final action to approve the map and text amendments with the changes recommended by OP in its second supplemental report.
Great Weight Given to ANC Issues and Concerns
The Commission is required under § 13(d) of the Advisory Neighborhood Commissions Act of 1975, effective March 26, 1976 (D.C. Law 1-21; D.C. Official Code § 1-309.10(d)) to give great weight to issues and concerns raised in the affected ANC's written recommendation. Great weight requires the acknowledgement of the ANC as the source of the recommendations and explicit reference to each of the ANC’s concerns. The written rationale for the decision must articulate with precision why the ANC does or does not offer persuasive evidence under the circumstances. In doing so, the Commission must articulate specific findings and conclusions with respect to each issue and concern raised by the ANC. See D.C. Official Code § 1-309.10(d)(3)(A) and (B).
On September 21, 2010, ANC 6A submitted a written report that indicated that the ANC voted to support the rezoning case set down by the Commission, but also suggesting that the Commission also consider rezoning additional properties not included in the case as it was set down. The report is marked as Exhibit 4 of the record. ANC 5B did not submit a report.
ANC 6A’s report stated that it supported the case as it was set down by the Commission because it would accomplish three goals:
· Downzoning the commercial lots south of H Street (Area 2 on the OP Map) from C-3-A to C-2-A to make future development more compatible with the surrounding residential neighborhood;
· Expanding the boundaries of the Overlay to ensure the design requirements and guidelines would apply to future development. ANC 6A stated that it thought the design guidelines had improved the quality of building proposals on H Street, and that the guidelines would ensure that the new construction would follow good urban design principles and be architecturally compatible with the existing building stock; and
· Rezoning portions of Square 4509[1] (Area 1 on the OP Map) to residential zoning to better reflect the current development, and the intent of the Comprehensive Plan.
The ANC 6A report further requested that the Commission expand the case to rezone additional lots not included in the OP petition. Specifically, the report requested:
- Expanding the Overlay to include all commercially zoned lots in Square 1026 (this applies to Areas 3, 4, 5, and 6 on the OP Map);
- Rezoning the lots in Square 1026 currently in the C-3-A Zone District (shown as Areas 5 and 6 on the OP Map) to the C-2-A Zone District; and
- Rezoning the C-2-A alley facing lots in Square 1027 (Area 7 on the OP Map) to include them within the Overlay.
The ANC stated that it believed these additional changes were consistent with the intent of the petition that was originally set down, and would ensure that future development on these lots would be consistent with the rest of the H Street corridor.
Through testimony presented at the hearing, ANC 6A modified its recommendation regarding Area 5. It stated that it supported OP’s recommendation that the underlying zoning remain unchanged, so long as it was included in the Overlay. The ANC also withdrew its rezoning recommendation for Area 6.
When the Commission took proposed action, it carefully considered the ANC’s recommendations. The Commission agreed with the ANC’s recommendations regarding the properties shown as Areas 1, 2, and 3 on the OP Map, and gave them the required great weight in their deliberations. The Commission also agreed with the ANC’s that the properties in Area 5 should be included in the Overlay. However, the Commission disagreed with the ANC’s downzoning recommendation for Area 5, and its recommendation to extend the Overlay to the alley lots in Areas 4 and 7 for the reasons that follow.
Alley lots – Areas 4 and 7
In its report, ANC 6A recommended rezoning the Square 1026, alley lot (Area 4 of the OP Map), and the alley lots in Square 1027 (Area 7 of the OP Map), to include them in the Overlay. The Commission does not find this advice persuasive because the Commission believes the Overlay is not appropriate for alley lots.
The Overlay is intended to encourage an active and dynamic pedestrian experience along the H Street corridor, which has been expanded to include portions of Florida Avenue, Maryland Avenue, 14th Street, and 15th Street through this case. It was never intended to enhance the pedestrian experience of the interior alleys. The alley lots do not have any frontage on the streets that the Overlay is intended to address. Many of the uses the Overlay encourages are not permitted on alley lots. Many of the design guidelines of the Overlay would not apply to the alley lots because they do not have a street frontage on H Street, Maryland Avenue, Florida Avenue, 14th Street, or 15th Street. The Overlay’s design requirements are ill-suited to alley lots. The Overlay contains a design guideline provision that encourages building to the property line, which the Commission does not want to encourage in alleys. The Overlay requires a 14-foot ground floor to ceiling height requirement. If this requirement were to be coupled with the existing regulations restricting building height on alley lots, it would discourage productive use and redevelopment of these lots.
Area 5
In its report, ANC 6A recommended downzoning the lots in Square 1026 (Area 5 on the OP Map) from the C-3-A to the C-2-A Zone District, and including them in the Overlay. The Commission agreed with the ANC that Area 5 should be in the Overlay, but disagreed with the downzoning recommendation. The Commission does not find the ANC’s recommendation to downzone the property persuasive because it believes the existing C-3-A zoning is more suitable for the site.
Area 5 is a prominent corner location near the eastern end of the H Street corridor, where Florida Avenue intersects with 14th Street. The other properties surrounding this intersection are zoned C-3-A. Downzoning the site would reduce the allowable density, lot occupancy, and building height, and would decrease the number of matter of right uses for the site. The effect of these changes would be to discourage the kinds of development the Overlay seeks to encourage. The Commission does not want to remove incentives to redevelop the site in accordance with the Overlay’s design guidelines.
Finally, ANC 6A submitted a second report on September 9, 2011. The second report indicated that the ANC supported the changes recommended by OP in its second supplemental report dated September 2, 2011, concerning lots 141, 142, 143, and 849 in Square 1027. The Commission carefully considered this recommendation, and adopted it.
Great Weight Given to OP Issues and Concerns
The Commission is required under § 5 of the Office of Zoning Independence Act of 1990, effective September 20, 1990 (D.C. Law 8-163, D.C. Official Code § 6-623.04 (2008 Repl.)) to give great weight to OP recommendations.
The Commission carefully considered all the recommendations OP made in its reports, and adopted OP’s recommendations to rezone Areas 1 and 2, and to deny the rezoning ANC 6A requested for Areas 2, 4, and 7. However, the Commission disagreed with OP’s recommendation, and voted to expand the Overlay to include Area 3 and Area 5.
OP argued against the expansion primarily on grounds that the text of the Overlay states that it only applies to properties that front on H Street. The Commission does not find this persuasive since the text can be modified through the text amendments included in this case to include properties that do not front on H Street. The Commission believes that Areas 3 and 5 are functionally part of the H Street commercial corridor, even if they do not literally front on H Street, because the parcels are commercially zoned, and directly adjacent to parcels that do front on H Street. It is therefore logical to expand the Overlay to these areas. The Commission believes the Overlay is intended to enhance the commercial corridor as a whole, and in places such as Areas 2, 3, and 5, the corridor includes some of the commercially zoned properties directly adjacent to properties that front on H Street.
ANC 6A supported extending the Overlay to these parcels because the Overlay’s design standards have improved the quality of buildings in the Overlay, will insure that new construction on the parcels will follow good design principles and be architecturally compatible with the existing building stock. The Commission agrees with these statements. In addition, the Commission believes the additional density and height permitted by the Overlay would be a positive factor in encouraging redevelopment, and Areas 3 and 5 are appropriate for increased density.
The Commission carefully considered OP’s second supplemental report dated September 2, 2011, and found the advice to be persuasive.
At a properly noticed public meeting held on September 12, 2011, the Commission took final action to adopt the map and text amendments as follows:
The Zoning Map of the District of Columbia is amended as follows:
Square
Lots
OP Map
Designation
Map Amendment
1026
0100, 0101, 0102 and 0103
Area 3
C-2-A to HS-A/C-2-A
0065, 0066, 0173, 0177, 0835 and 0836
Area 5
C-3-A to HS-A/C-3-A
1027
0141, 0142, 0143, and 0849
Area 2
C-3-A to HS-A/C-3-A
1027
0804, 0840, and 0841
Area 2
C-3-A to HS-A/C-2-A
1049
0019, 0020, 0021, 0803 and 0809
Area 2
C-3-A to HS-A/C-2-A
1050
0007, 0008, 0009, 0010, 0011, 0014, 0015, 0016, 0022, 0026, 0027, 0028, 0029, 0030, 0031, 0033, 0035, 0036, 0803, 0806, 0807, 0809, 0812 and 0813
Area 2
C-3-A to HS-A/C-2-A
4509
0157 (portion)
Area 1
C-2-B to R-5-C
Reservations
OP Map
Designation
Map Amendment
15P, 15Q, 15R and 213
Area 2
C-3-A to HS-A/C-2-A
Title 11 DCMR, Chapter 13, NEIGHBORHOOD COMMERCIAL OVERLAY DISTRICT, is amended as follows:
Section 1320, H STREET NORTHEAST NEIGHBORHOOD COMMERCIAL OVERLAY DISTRICT (HS), is amended as follows:
By amending § 1320.1 to include a description of the new properties added to the Overlay and its sub-areas, so that the provision will read as follows:
1320.1 The H Street Northeast Neighborhood Commercial Overlay District (HS) applies to all lots fronting onto H Street, N.E. from 2nd Street to 15th Street, N.E. and zoned C-2-A, C-2-B, C-2-C, C-3-A, or C-3-B, as well as: Square 1026, Lots 65, 66, 100, 101, 102, 103, 173, 177, 835, and 836; lots within Squares 1027 and 1049 fronting onto Maryland Avenue, N.E. or 14th Street, N.E.; Reservations 15P, 15Q, 15R, and 213; and all of Square 1050. The Overlay is divided into three (3) sub-districts affecting the following squares:
(a) H Street Northeast Overlay Housing Sub-district (HS-H) encompasses properties fronting on H Street, N.E. in Squares 751, 752, 776, 777, 808, 809, 832, 833, 858, and 859 from 2nd to 7th Streets, N.E.;
(b) H Street Northeast Overlay Retail Sub-district (HS-R) encompasses properties fronting on H Street, N.E. in Squares 889, 890, 911, 912, 933, 958, 959, 981, and 982 from 7th to 12th Streets, N.E.; and
(c) H Street Northeast Overlay Arts Sub-district (HS-A) encompasses properties fronting on H Street, N.E. in Squares 1003, 1004, 1026, 1027, 1049N, and 1049 from 12th to 15th Streets, N.E., as well as: Square 1026 lots 65, 66, 100, 101, 102, 103, 173, 177, 835, and 836; lots within Squares 1027 and 1049 fronting onto Maryland Avenue, N.E. or 14th Street, N.E.; Reservations 15P, 15Q, 15R, and 213; and all of Square 1050.
By amending § 1320.2, to add a new paragraph (f) so that the entire provision will read as follows:
1320.2 In addition to the purposes in § 1300, the purposes of the HS Overlay District are to:
(a) Implement the policies and goals of the Comprehensive Plan and the H Street, N.E. Strategic Development Plan as approved by the Council of the District of Columbia on February 17, 2004 (R15-460);
(b) Encourage residential uses along the H Street, N.E. corridor, particularly provisions of affordable units and reuse of upper floors;
(c) Encourage the clustering of uses into unique destination districts along the corridor, specifically a housing district from 2nd Street to 7th Street, N.E.; a neighborhood-serving retail shopping district from 7th Street to 12th Street, N.E.; and an arts and entertainment district from 12th Street to 15th Street, N.E.;
(d) Establish design guidelines for new and rehabilitated buildings that are consistent with the historic character and scale of the Overlay District;
(e) Encourage the reuse of existing buildings along the corridor; and
(f) Encourage residential uses, the reuse of existing buildings, and the redevelopment of those portions of Squares 1026, 1027, 1049, and 1050 within the Overlay but not fronting H Street.
Section 1324, DESIGN REQUIREMENTS (HS), is amended as follows:
By amending § 1324.7, 1324.8, and 1324.10 to insert the phrase “, Florida Avenue, N.E., Maryland Avenue, N.E., 13th Street, N.E., 14th Street, N.E., or 15th Street, N.E.”, so that the three (3) provisions read as follows:
1324.7 Parking structures with frontage on H Street, N.E., Florida Avenue, N.E., Maryland Avenue, N.E., 13th Street, N.E., 14th Street N.E., or 15th Street, N.E. shall provide not less than sixty-five percent (65%) of the ground level frontage as commercial space.
1324.8 Each commercial use with frontage on H Street, N.E., Florida Avenue, N.E., Maryland Avenue, N.E., 13th Street, N.E., 14th Street, N.E., or 15th Street, N.E. shall devote not less than fifty percent (50%) of the surface area of the streetwall(s) at the ground level of each building to display windows having clear or clear/low-emissivity glass, except for decorative or architectural accent, and to entrances to commercial uses or to the building.
***
1324.10 Each commercial use with frontage on H Street, N.E., Florida Avenue, N.E., Maryland Avenue, N.E., 13th Street N.E., 14th Street, N.E., or 15th Street, N.E. shall have an individual public entrance directly accessible from the public sidewalk. Multiple-dwellings shall have at least one (1) primary entrance on H Street directly accessible from the sidewalk.
By amending § 1324.12 to continue to require that the ground floor of buildings fronting H Street, N.E. have a uniform minimum clear floor-to-ceiling height of fourteen feet (14 ft.), but only impose that requirement on other Overlay properties that voluntarily comply with its commercial use designation provisions:
1324.12 The ground floor level of each new building or building addition shall have a uniform minimum clear floor-to-ceiling height of fourteen feet (14 ft.) if the building:
(a) Fronts H Street, N.E.; or
(b) Fronts Florida Avenue, N.E., Maryland Avenue, N.E., 13th Street, N.E., 14th Street, N.E., or 15th Street, N.E. and would have ground floor space occupied by one (1) or more service, retail, or office uses permitted as a matter of right in the underlying zone.
On February 7, 2011, upon the motion of Chairman Hood, as seconded by Commissioner May, the Zoning Commission APPROVED this proposed rulemaking for the amendment pertaining to Area 2 at its public meeting by a vote of 4-1-0 (Anthony J. Hood, Peter G. May, and Michael G. Turnbull to approve; Greg M. Selfridge to approve by absentee ballot; Konrad W. Schlater to deny).
On February 7, 2011, upon the motion of Chairman Hood, as seconded by Commissioner May, APPROVED the proposed rulemaking for the map amendments pertaining to Areas 1, 3, and 5 and to authorize publication of conforming text amendments at its public meeting by a vote of 5-0-0 (Anthony J. Hood, Peter G. May, Konrad W. Schlater, and Michael G. Turnbull to approve; Greg M. Selfridge to approve by absentee ballot).
On September 12, 2011, the Zoning Commission ADOPTED this rulemaking at its public meeting by a vote of 4-1-0 (Anthony J. Hood, Peter G. May, Greg M. Selfridge, and Michael G. Turnbull to adopt; Konrad W. Schlater opposed).
In accordance with the provisions of 11 DCMR § 3028.9, this Order shall become effective upon publication in the D.C. Register; that is on December 9, 2011.
Appendix: Exhibit 1 of the January 21, 2011, report filed by the District of Columbia Office of Planning (OP Map)
[1] The ANC report referred to Square 2409, but this was an inadvertent error, as the ANC comment was clearly directed at Square 4509.
