4403138 Zoning Commission Notice of Final Rulemaking & Z.C. Order No. 12-11 (Text Amendment - Various Administrative Admendments)

ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA

NOTICE OF FINAL RULEMAKING

AND

 Z.C. ORDER NO. 12-11

Z.C. Case No. 12-11

(Text Amendment – 11 DCMR)

(Various Administrative Amendments)

February 25, 2013

 

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 its adoption of amendments to §§ 199, 400, 2403, 2407, 2408, 2409, 3024, 3029, 3100, 3103, 3106, 3112, 3113, 3121, 3125, 3126, 3129, 3130, and 3202 of the Zoning Regulations, Title 11 of the District of Columbia Municipal Regulations (DCMR).  The amendments pertain to the measurement of height, procedures and standards for planned unit developments (PUDs), the procedural rules of the Commission and the Board of Zoning Adjustment, and the review of building permits.  

 

A Notice of Proposed Rulemaking was published in the D.C. Register on January 18, 2013, 60 DCR 398.  In response to comments received, the Commission voted to make several revisions to the proposed rules, which will be described in the portion of the notice entitled Final Action.  These changes do not constitute a substantial alteration of the text and therefore republication is not required pursuant to 1 DCMR § 310.5. The amendments shall become effective upon the publication of this notice in the D.C. Register. 

 

Procedures Leading to Adoption of Amendments

On July 20, 2012, the Office of Planning (OP) submitted a memorandum that served as a petition requesting amendments to the regulations.  The Commission voted to set down the proposal for hearing at its July 30, 2012 public meeting. 

 

Through a report dated October 15, 2012, the Chair of Advisory Neighborhood Commission (ANC) 6C indicated that at a duly noticed and regularly scheduled meeting and with a quorum present, the ANC voted to approve several recommendations.  The ANC opposed the proposed amendment to § 2403.6 that would prohibit most monetary contributions in PUDs, believing that important public benefits would be lost.   The ANC also opposed new § 2403.15 through 2403.20, which describe the process in which an applicant for a PUD or PUD modification is given a final opportunity to identify the public benefits of the PUD and to prove to the Commission that each such benefit will result from a grant of the application.  The ANC expressed concern that the process: (1) would not afford ANCs sufficient time to respond;         (2) should occur before proposed action; and (3) does not offer recourse should an ANC conclude that the benefits are insufficient.  The ANC’s final substantive comment concerned proposed new § 2409.12, which defines the term “applicant” for the purposes of PUD conditions as meaning “the person or entity then holding title to the Subject Property.”  The ANC noted that the real party in interest could be a contract purchaser and believed that the quoted phrase did not cover that person or entity. The Commission’s response to these concerns appears in the portion of this Notice and Order entitled ANC Great Weight. 

 

A public hearing was scheduled for and held on November 8, 2012, at which the Commission heard the presentation of Ms. Jennifer Steingasser of OP and testimony from Stu Ross, Chair of ANC 3D, Ms. Alma Gates on behalf of the Committee of 100 on the Federal City, Ms. Barbara Kahlow on behalf of the West End Citizens Association, and Ms. Marilyn Simon.  Mr. Ross, Ms. Gates, Ms. Kahlow, and Ms. Simon also provided written statements.  

 

As the conclusion of the hearing, the Commission asked OP to provide clarifying language for certain of the proposed amendments to Chapter 24, and to review the comments regarding measuring height. In response OP filed a Supplemental Report dated November 25, 2012.  The report also included recommendations suggested by the Office of the Attorney General based upon the Commission's comments made during the hearing.

 

At its regularly scheduled meeting held December 10, 2012, the Commission voted to accept most of the recommendations made in the OP report and to refer the revised proposal to the National Capital Planning Commission (NCPC) for the thirty (30)-day period of review required under § 492 of the District Charter.  The Commission also voted to allow monetary contributions to non-governmental entities to be recognized as public benefits provided that the applicant agrees that no certificate of occupancy for the PUD may be issued unless the applicant provides proof to the Zoning Administrator that the items or services funded have been or are being provided.

 

The Commission received two comments in response to the notice of proposed rulemaking

 

The first comment came from the Chair of ANC 3D, who indicated that at a properly noticed public meeting with a quorum present, the ANC voted to make the following recommendation:

 

• Height.  Building height should be measured from the natural grade at the midpoint of the building face closest to the nearest public right of way with natural grade to be determined as the ground elevation that existed immediately prior to the issuance of the first building permit, including a raze permit, needed to begin construction of the building.  In addition, building heights should be measured to the highest point of the roof or parapet instead of only to the ceiling of the top floor.

 

·         PUD Procedures.

 

o        § 2403.6.  No monetary contributions should be recognized as public benefits.

o        § 2403.15.  A PUD applicant should not be relieved of the obligation to prove that the PUD will offer public benefits.

o        § 2403.20.  An ANC must be given more than 28 days to respond to the applicant’s final proffer of PUD benefits.

o        §§ 3029.6 and 3100.6.  New evidence should not be required in order to move for reconsideration.

o        § 3125.3.  Parties should be able to respond to proposed order received after a decision to grant or deny an application is made.

 

The Commission’s response to these concerns appears in the portion of this Notice and Order entitled ANC Great Weight. 

 

In addition, the Commission received comments from the law firm of Holland & Knight. 

 

As to height issues, the comments expressed concern with the proposal to move two measurement rules for zones with height limits of 40 and 60 feet from the definition of building height to § 400 of the Residence Zone rules.   The comments pointed out that doing so would have the unintentional affect of changing the measurement rules for other zone districts with similar height restrictions.  The comments also noted that existing structures in Residence Zones may become nonconforming as a result of the changes in height measurement proposed and suggested amendments to § 2001.3.  Finally, the comments discussed the phrase “Mid-Point of the Building Façade … that is Closest to a Street Lot Line” and suggested that in certain unusual circumstances there may be uncertainty in interpreting the point that is closest to the street lot line. 

 

The comments also addressed the proposed amendments to § 2409.8, which would have established an absolute forty-five (45)-day waiting period to issue a building permit that was the subject of a PUD modification approved by the Commission.  The comments suggested that this was too long a period.  Finally, the comments recommended either deleting the proposed definitions of “practical difficulty” and “undue hardship” from the proposed variance regulations or modifying the definitions to conform with what the law firm considered to the current legal standard.

 

Final Action

 

At regularly scheduled public meeting held on February 25, 2013, the Commission took final action to adopt the text amendments. In doing so it considered the comments received from Holland & Knight and a confidential memorandum submitted by the Office of the Attorney General in response.  The final rules adopted by the Commission retain the original final five (5) paragraphs in the definition of building height in order to avoid the adverse consequences identified by the comments.  The rules contain a grandfathering provision specific to those zones, rather than the general amendment to § 2001.3 proposed, since the latter would treat the grandfathered structures as nonconforming and thus restrict their ability to expand or be reconstructed under certain circumstances.  The adopted rules retain a forty-five (45)-day period to review PUD modifications approved by the Zoning Administrator, but now permit an earlier release of the affected permit should the Commission approve the modification prior thereto. The proposed definitions of “practical difficulty” and “undue hardship” are not included in the adopted text.  Finally, in response to the concern of ANC 3D, the Commission modified § 2403.15 to clarify that it is the final proffer process, and not the requirement to prove PUD benefits, that the Commission may determine to be unnecessary.

 

ANC Great Weight

 

In accordance with Section 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)) the Commission must give great weight to the written issues and concerns of the affected ANCs, which in this case are all ANCs. 

 

In this instance, the Zoning Commission received reports from ANCs 3D and 6C.

 

Shared Concerns

 

The Final Proffer Process

 

Both ANCs expressed concern over the time that will be permitted to respond to an applicant’s final submission of its proposed public benefits.  However, the Court of Appeals has made it clear that an ANC must be treated like any other party in a contested case.

 

Finally, petitioners contend that the BZA was required by D.C. Code § 1-261(b) to give the ANC at least thirty days within which to respond to the revised traffic plan, and that the BZA erred in failing to do so. Since the Levine School did not submit its revised plan until March 15, petitioners assert that the BZA granted the special exception (on April 5) before the thirty days had expired. We hold that section 1-261(b) is not applicable here. This section of the Code requires the District of Columbia government, or any of its agencies, to give thirty days' notice to any affected ANC of any proposed action in a rulemaking proceeding. It cannot reasonably be read as imposing a requirement on the BZA to allow an ANC (or anyone else) thirty days to respond to a supplemental submission in a zoning appeal. By its terms, the statute simply does not address the situation presented here.

 

Neighbors on Upton Street v. District of Columbia Bd. of Zoning Adjustment, 697 A.2d 3, 10 -11 (D.C. 1997).

 

ANC 6C also believed that the process should occur before proposed action.  However, it is the Commission’s experience that an applicant’s proffers frequently change between the close of a hearing and proposed action.  The ANC’s concern that the process does not offer recourse should an ANC conclude that the benefits are insufficient is not legally relevant, because the Commission has no authority to add to a proposed amenities package.

 

As noted, in response to the concern of ANC 3D, the Commission modified § 2403.15 to clarify that it is the final proffer process, and not the requirement to prove PUD benefits, that the Commission may determine to be unnecessary.

 

PUD Monetary Contributions

 

ANC 6C opposed the prohibition of monetary contributions to private entities as PUD benefits while ANC 3D favored an entire prohibition.  The Commission believes it has found a middle path by permitting such private contributions, but only if the applicant agrees that no certificate of occupancy for the PUD may be issued unless the applicant provides proof to the Zoning Administrator that the items or services funded have been or are being provided.  This allows for private contributions, but puts the risk of a failure of the third party to deliver on the applicant rather than the Commission.

 

Individual Concerns

 

ANC 6C

 

The ANC 6C believed that proposed new § 2409, which defines the term “applicant” for the purposes of PUD conditions to “mean the person or entity then holding title to the Subject Property, would not encompass a contract purchaser.  The phrase “then holding title” does not just refer to the person or entity holding title at the time of the application, but through the life of the PUD.  Thus, once a contract purchaser became the owner, the responsibilities to fulfill any applicable PUD condition would be theirs.

 

ANC 3D

 

As to ANC 3D’s view favoring the use of natural grade, under the existing regulations natural grade is only used in the unusual circumstance when there is an artificial elevation, such as a bridge or viaduct.  At this late stage in this proceeding, the Commission is not inclined to reopen the discussion to determine whether natural grade is the more appropriate measuring point in Residence Zones. Although the Commission understands why the ANC favors measurement to the top of the roof, it is convinced the more reasonable approach for a non-flat roof is averaging between the top of the peak of a roof and the bottom of the eave.  Otherwise, the rules might inadvertently encourage shallow-pitched roofs.

 

The ANC is mistaken that the amendment to § 3029 will impose the “new evidence” standard upon motions for reconsideration.  That standard applies only to a motion for a rehearing.  This amendment only adds the existing BZA standard to the Commission’s rules.

 

Finally, the Commission cannot agree with ANC 3D that the amendment to § 3125.3 should permit parties to respond to proposed orders submitted by the prevailing party after a BZA decision to grant or deny an application is made.  The only conceivable reason why a non-prevailing party would submit a response would be to convince the BZA to change its vote.  Such arguments must await the issuance of the final written decision by the Board, at which point a motion for reconsideration may be filed.

 

Having addressed each issue and concern raised by ANCs 3            D and 6C, and having explained why it did or did not find the advice persuasive, the Commission has afforded each ANC the great weight required by statute.

 

Title 11 DCMR (Zoning) is amended as follows:

 

Chapter 1, THE ZONING REGULATIONS, § 199, DEFINITIONS, § 199.1, definition of “Building, height of” is amended to: (1) to provide that in Residence Districts the term means the vertical distance measured at the existing grade at the mid-point of the building façade of the principal building that is closest to a street lot line to a point designated in the zone district; (2) to establish that berms or other forms of artificial elevation shall not be included in measuring building height; (3) to add qualifiers to the third, fifth, and sixth paragraphs; and (4) to amend the sixth paragraph to increase the height of excludable parapets from three to four feet, so that the definition will read as follows: 

 

Building, height of – in other than Residence Districts (R), the vertical distance measured from the level of the curb, opposite the middle of the front of the building to the highest point of the roof or parapet or a point designated by a specific zone district; in Residence Districts (R) the vertical distance measured at the existing grade at the mid-point of the building façade of the principal building that is closest to a street lot line to a point designated in the zone district.  Berms or other forms of artificial landscaping shall not be included in measuring building height. 

 

The term curb shall refer to a curb at grade. In the case of a property fronting a bridge or a viaduct, the height of the building shall be measured from the lower of the natural grade or the finished grade at the middle of the front of the building to the highest point of the roof or parapet or a point designated by a specific zone district.

 

Unless otherwise restricted or permitted in this title, in those districts in which the height of the building is limited to forty feet (40 ft.), the height of the building may be measured from the finished grade level at the middle of the front of the building to the ceiling of the top story.

 

In those districts in which the height of the building is limited to sixty feet (60 ft.), in the case of a building located upon a terrace, the height of building may be measured from the top of the terrace to the highest point of the roof or parapet, but the allowance for terrace height shall not exceed five feet (5 ft.).

 

Except as provided in § 400.20, where a building is removed from all lot lines by a distance equal to its proposed height above grade, the height of building shall be measured from the natural grade at the middle of the front of the building to the highest point of the roof or parapet.

 

Except as provided in § 400.21, if a building fronts on more than one (1) street, any front may be used to determine the maximum height of the building; but the basis for the height of the building shall be determined by the width of the street selected as the front of the building.

 

Except as provided in § 400.19, in those districts in which the height of building is permitted to be ninety feet (90 ft.) or greater, the height of buildings shall be measured to the highest point of the roof excluding parapets not exceeding four feet (4 ft.) in height.

 

Chapter 4, RESIDENCE DISTRICT: HEIGHT, AREA, AND DENSITY REGULATIONS, § 400, HEIGHT OF BUILDINGS OR STRUCTURES (R), is amended by adding new § 400.15 through 400.22 to read as follows:

 

400.15             The height of buildings in R zones shall be measured in accordance with the rules provided in § 400.16 through 400.21. If more than one (1) of these subsections applies to a building, the rule permitting the greater height shall apply.

 

400.16             The building height measuring point (BHMP) shall be established at the existing grade at the mid-point of the building façade of the principal building that is closest to a street lot line.

 

400.17             The height of a building with a flat roof shall be measured from the BHMP to the highest point of the roof excluding parapets and balustrades not exceeding four feet (4 ft.) in height.

 

400.18             The height of a building with a roof that is not a flat roof shall be measured as follows:

 

(a)        From the BHMP to the average level between the highest eave, not including the eave of a dormer and the highest point of the roof; and

 

(b)        Where there are no eaves, the average level shall be measured between the top of the highest wall plate and the highest point of the roof.

           

400.19             The height of a building permitted to be ninety feet (90 ft.) shall be measured from the BHMP to the highest point of the roof excluding parapets and balustrades not exceeding four feet (4 ft.) in height.

 

400.20             Where a building is removed from all lot lines by a distance equal to its proposed height above grade, the height of building shall be measured from the BHMP to the highest point of the roof or parapet.

 

400.21             If a building fronts on more than one (1) street, any front may be used to determine street frontage; but the basis for measuring the height of the building shall be established by the street selected as the front of the building

 

400.22             A conforming structure in existence on June 14, 2013 that would have been rendered nonconforming as a result of the adoption of amendments to this section made in Z.C. Order No. 12-11 shall be deemed conforming; provided that the height of the structure may neither be increased or extended.

 

Chapter 24, PLANNED UNIT DEVELOPMENT PROCEDURES, is amended by as follows:

 

Section 2403, PUD EVALUATION STANDARDS, is amended as follows:

 

Subsection 2403.6 is amended to add a new second and third sentence so that the provision reads as follows:

 

2403.6             Public benefits are superior features of a proposed PUD that benefit the surrounding neighborhood or the public in general to a significantly greater extent than would likely result from development of the site under the matter-of-right provisions of this title.  All public benefits shall meet the following criteria:

 

(a)        Benefits shall be tangible and quantifiable items; and

(b)        Benefits shall be measurable and able to be completed or arranged prior to issuance of a Certificate of Occupancy.

 

Monetary contributions shall only be permitted if made to a District government program or if the applicant agrees that no certificate of occupancy for the PUD may be issued unless the applicant provides proof to the Zoning Administrator that the items or services funded have been or are being provided.

 

Subsection 2403.9 (f) is amended to specify when mandatory affordable housing may be considered a public benefit, so that the entire subsection reads as follows:

 

2403.9             Public benefits and project amenities of the proposed PUD may be exhibited and documented in any of the following or additional categories:

 

(a)        Urban design, architecture, landscaping, or creation or preservation of open spaces;

 

(b)        Site planning, and efficient and economical land utilization;

 

(c)        Effective and safe vehicular and pedestrian access, transportation management measures, connections to public transit service, and other measures to mitigate adverse traffic impacts;

 

(d)       Historic preservation of private or public structures, places, or parks;

 

(e)        Employment and training opportunities;

 

(f)        Housing and affordable housing; except that affordable housing provided in compliance with § 2603 shall not be considered a public benefit except to the extent it exceeds what would have been required through matter of right development under existing zoning.  In determining whether this standard has been met, the Commission shall balance any net gain in gross floor area against any loss of gross floor area that would have been set-aside for “low-income households” as defined in § 2601.1.

 

(h)        Environmental benefits, such as:

 

(1)        Storm water runoff controls in excess of those required by   Stormwater Management Regulations;

 

(2)       Use of natural design techniques that store, infiltrate, evaporate, treat, and detain runoff in close proximity to where the runoff is generated; and

 

(3)       Preservation of open space or trees;

 

(i)         Uses of special value to the neighborhood or the District of Columbia as a whole; and

 

(j)         Other public benefits and project amenities and other ways in which the proposed PUD substantially advances the major themes and other policies and objectives of any of the elements of the Comprehensive Plan.

 

New § 2403.15 through 2403.21 are added to read as follows:

 

2403.15           Subsections 2403.15 through 2403.20 describe the process in which an applicant for a PUD or PUD modification is given a final opportunity to identify the public benefits of the PUD and to prove to the Commission that each such benefit will result from a grant of the application.   The Commission may at the request of an applicant or in its own motion determine that the process is unnecessary, such as when it is considering a modification to an approved design or to a limited number of conditions.

 

2403.16           No later than seven (7) days after the Commission takes proposed action on any PUD application, the applicant shall file with the Office of Zoning (OZ) and serve the Office of Planning (OP), the Office of the Attorney General (OAG), and the affected ANC and any other parties, a final list of the public benefits proffered for the PUD (Proffer) and, for each proffered public benefit, provide a draft condition that is both specific and enforceable. 

 

2403.17           The description of each public benefit shall be identical to the description contained in the applicant’s proposed order unless a revision is required for clarity or to reflect a revision.

 

2403.18           The information required by § 2403.16 shall be presented in the form of a chart in which each proffered public benefit is described in one column and a corresponding condition is described in a second.  For example:

 

Proffer	Condition
42.  The Applicant has agreed to contribute _________ to _________ for the purpose of ________ prior to applying for a certificate of occupancy for the PUD.	B.4. Prior to applying for a certificate of occupancy for the PUD, the Applicant shall contribute ________ to ______ for the purpose of ________.

 

2403.19           No later than fourteen (14) days after the Commission takes proposed action on any PUD application, OAG, OZ, and OP shall complete any dialogue they feel is needed with the applicant with respect to any deficiencies in the applicant’s proposed conditions. 

 

2403.20           No later than twenty-one (21) days after the Commission takes proposed action on any PUD application, the applicant shall file with OZ and serve OP, OAG, and the affected ANC and any other parties any revisions to the Proffer and conditions, or a statement that none have been made.

 

2403.21           No later than twenty-eight (28) days after the Commission takes proposed action on any PUD application, OAG, OP, and the affected ANC and any other party may file any responses each has to the Applicant’s final Proffer and conditions.  The responses shall be limited to whether the conditions in the final Proffer are specific and enforceable.  The OAG response will be treated as a confidential attorney-client communication.

 

2403.22           The Commission will consider the PUD to contain only those public benefits described in the final Proffer.

 

Section 2407, PROCESSING OF FIRST-STAGE PUD APPLICATIONS, § 2407.11 is amended to expressly authorize the extension of a first-stage PUD approval, so that the provision reads as follows:

 

2407.11           The rights granted under such an approval are conditional, and shall be exercised within the specified time limit. Unexercised rights shall lapse at the end of the specified time periods, and the zoning shall revert to pre-existing conditions, unless a request to extend the validity of the approval is granted by the Commission in accordance with the standard and process for second-stage PUD extensions set forth in § 2408.10 through 2408.12.

 

Section 2408, PROCESSING OF SECOND-STAGE PUD APPLICATIONS, is amended as follows:

 

Subsection 2408.6 is amended to add a new second sentence, so that the entire provision reads as follows:

 

2408.6             If the Commission finds the application to be in accordance with the intent and purpose of the Zoning Regulations, the PUD process, and the first-stage approval, the Commission shall grant approval to the second-stage application, including any guidelines, conditions, and standards that are necessary to carry out the Commission's decision.  No order approving a PUD shall be deemed to include relief from any zoning regulation, including but not limited to the requirements of Chapter 26, unless such relief was expressly requested by the applicant and expressly granted in the order.

 

A new § 2408.16 is added to read as follows:

 

2408.16           The grant of a PUD prohibits any construction on the PUD site that is not authorized in the order approving the PUD, including development under matter of right standards, until:

 

(a)                The validity of the PUD order expires; or

 

(b)               The Commission issues an order granting the applicant’s motion to extinguish the PUD. 

 

Section 2409, IMPLEMENTATION, is amended as follows:

 

Subsection 2409.2 is amended by adding a new second sentence so that the entire provision will read as follows:

 

2409.2                         The Zoning Administrator shall not approve a permit application unless the plans conform in all respects to the plans approved by the Commission, as those plans may have been modified by any guidelines, conditions, or standards that the Commission may have applied.  Nor shall the Zoning Administrator accept the establishment of an escrow account in satisfaction of any condition in the Commission’s order approving the PUD unless the order expressly authorizes an escrow.

 

Subsection 2409.7 is amended by striking the word “request” and inserting the phrase “modification requested pursuant to § 2409.6” in its place, so that the entire provision reads as follows:

 

2409.7                         In reviewing and approving any modification requested pursuant to § 2409.6, the Zoning Administrator shall determine that the proposed modification is consistent with the intent of Commission in approving the PUD. 

 

Subsection 2409.8 is amended to provide a time period for the Commission to review PUD modifications approved by the Zoning Administrator, so that the entire provision reads as follows:

 

2409.8             Following approval of any modifications under § 2409.6, the Zoning Administrator shall report to the Commission the modification approved under this section and may issue a building permit predicated upon the modification if:

 

(a)        Forty-five (45) days have passed since the submittal of the report and the Commission has not make a finding that the modification exceeds the scope of § 2406.9; or

 

(b)        Prior to the expiration of that time period the Commission acknowledges that the modification does not exceed the scope of § 2409.6, whichever is the first to occur. 

 

If the Commission timely decides that the modification exceeded the scope of § 2409.6, the Zoning Administrator shall not approve the building permit, but shall instruct the applicant to seek a modification pursuant to § 2409.9.

 

A new § 2409.12 is added to read as follows:

 

2409.12           Unless specifically stated otherwise, the term "Applicant" in any condition of an order approving a PUD or PUD modification shall mean the person or entity then holding title to the Subject Property. If there is more than one owner, the obligations under the order shall be joint and several. If a person or entity no longer holds title to the PUD site, that party shall have no further obligations under the order; however, that party remains liable for any violation of any condition that occurred while an Owner.

 

Chapter 30, ZONING COMMISSION PROCEDURES RULES OF PRACTICE AND PROCEDURE, is amended as follows:

 

Section 3024, CLOSING THE RECORD, § 3024.1 is amended by adding three new sentences, as that the entire provision reads as follows:

 

3024.1             The record shall be closed at the end of the public hearing, except that the record may be kept open for a stated period for the receipt of specific exhibits, information, or legal briefs, as directed by the presiding officer.  Any other materials received by the Commission after the close of the record shall be returned by the Director and not received into the files of the Commission. However, if the materials are accompanied by a request to re-open the record, the request shall be accepted and presented to the Chair for consideration. The request must demonstrate good cause and the lack of prejudice to any party. If granted, the materials shall be entered into the record.

 

Section 3029, RECONSIDERATION AND REFILING, § 3029.6 is amended by adding a new second sentence so that the entire provision reads as follow:

 

3029.6             A motion for reconsideration, rehearing, or re-argument shall state specifically the respects in which the final order is claimed to be erroneous, the grounds of the motion, and the relief sought.  No request for rehearing shall be considered by the Commission unless new evidence is submitted that could not reasonably have been presented at the original hearing. If a rehearing is granted, notice shall be given as in the case of an original hearing. 

 

Chapter 31, BOARD OF ZONING ADJUSTMENT RULES OF PRACTICE AND PROCEDURE, is amended as follows:

 

Section 3100, JURISDICTION; AUTHORITY; POWERS, is amended as follows:

 

By adding a new § 3100.3 to read as follows:

 

3100.3             The rules prohibiting ex parte communication in Commission contested cases, as set forth in § 3023 of this title, apply to all applications and appeals before the Board and commence upon the filing of such proceedings.

 

By amending § 3100.6 to insert the phrase “except that the Board may dismiss an application or appeal if the applicant or appellant fails to appear at a hearing without explanation” at its end, so that the entire provision reads as follows:  

 

3100.6             No appeal or application shall be dismissed on the grounds that the appellant or applicant failed to comply with the provisions of this chapter unless, after due notice of the deficiency and expiration of a reasonable time as fixed by the Board, the deficiency has not been corrected, except that the Board may dismiss an application or appeal if the applicant or appellant fails to appear at a hearing without explanation.

 

Section 3103, VARIANCES, is amended by adding new § 3103.3 through 3103.7 to read as follows:

 

3103.3             Variances are classified as area variances or use variances.

 

3103.4             An area variance is a request to deviate from an area requirement applicable to the zone district in which the property is located.

 

3103.5             Examples of area variances are requests to deviate from:

 

(a)        Requirements that affect the size, location, and placement of buildings and other structures such as height, floor area ratio, lot occupancy, yard width and depth, and minimum court size;

 

(b)        Minimum parking or loading requirements to an extent greater than what may be permitted by special exception;

 

(c)        Limitations on the extent to which the gross floor area of a building may be occupied by a matter of right non-residential use;

 

(d)       Limitations on the alteration or conversion of certain structures on alley lots as stated in § 2507.3;

 

(e)        The prohibition against certain enlargements and additions to nonconforming structures as stated at § 2001.3; and

 

(f)        Preconditions to the establishment of a matter of right use including, but not limited to, the minimum land area requirement of § 401.3 applicable to the conversion of a building an apartment house as permitted by § 330.5(e); provided that the waiver would not cause the proposed use to meet the definition of a more intense use.

 

3103.6             A use variance is a request to permit:

 

(a)        A use that is not permitted by right or special exception in the zone district where the property is located;

 

(b)        A use that is expressly prohibited in the zone district where the property is located; or

 

(c)        An expansion of a nonconforming use prohibited by § 2002.3.

 

3103.7             The standard for granting a variance, as stated in § 3103.1 differs with respect to use and area variances as follows:

 

(a)        An applicant for an area variance must prove that as a result of the attributes of a specific piece of property described in § 3103.1, the strict application of a zoning regulation would result in peculiar and exceptional practical difficulties to the owner of property; and

 

(b)        An applicant for a use variance must prove that as a result of the attributes of a specific piece of property described in § 3103.1, the strict application of a zoning regulation would result in exceptional and undue hardship upon the owner of the property.

 

Section 3106, APPEARANCE AND REPRESENTATION, is amended by repealing               § 3106.3.[1]

 

Section 3112, PRE-HEARING PROCEDURES FOR APPEALS, is amended as follows:

 

Subsection 3112.15 is amended to read as follows:

 

3112.15           At the time of the hearing on the appeal, the Board shall consider any request to intervene made pursuant to § 3106.2.  The Board shall grant intervener status only if the person requesting intervener status has clearly demonstrated that they have a specific right or interest that will be affected by action on the appeal.

 

A new § 3112.16 is added to separately state the last phrase in existing § 3112.15, so that new provision will read as follows:

 

3112.16           In granting intervener status, the Board may specify whether the person will be permitted to intervene in the appeal for general or limited purposes. 

 

Section 3113, PRE-HEARING PROCEDURES FOR APPLICATIONS, is amended to add a new § 3113.21 to read as follows:

 

3113.21           At the time of the hearing on the application, the Board shall consider any request for party status made pursuant to § 3106.2.  The Board shall grant party status only if the person requesting party status has clearly demonstrated that the person's interests would likely be more significantly, distinctively, or uniquely affected in character or kind by the proposed zoning relief than those of other persons in the general public.

 

Section 3121, PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW; CLOSING THE RECORD, § 3121.9 is amended by adding three new sentences, so that the provision reads as follows:

 

3121.9             Any material received by the Board after the close of the record except that permitted by § 3121.5, that bears upon the substance of the appeal or application shall be returned by the Director and not received into the files of the Board.  However, if the materials are accompanied by a request to re-open the record, the request shall be accepted and presented to the Chair for consideration. The request must demonstrate good cause and the lack of prejudice to any party. If granted, the materials shall be entered into the record.

 

Section 3125, FINAL DECISION AND EFFECTIVE DATE OF DECISIONS, § 3125.3 is amended by adding a new second and third sentence, so that the entire provision reads as follows:

 

3125.3             The concurring vote of at least a full majority of the members of the Board is necessary for any decision.  After a vote to grant or deny an application or appeal, the prevailing party may file a proposed order or a revision to a previously filed proposed order.  No response to the proposed order may be submitted by any other party.

 

Section 3126, RECONSIDERATION OR REHEARING, § 3126.2 is amended by adding a new second sentence, so that the entire provision reads as follows:

 

3126.2             Any party may file a motion for reconsideration or rehearing of any decision of the Board, provided that the motion is filed with the Director within ten (10) days from the date of issuance of a final written order by the Board.  The Board shall not receive or consider any motion for reconsideration, rehearing, or re-argument of a final order in a contested case proceeding that is filed prior to the order being issued nor waive this prohibition.  

 

Section 3129, MODIFICATION OF APPROVED PLANS, is amended by adding a new § 3129.9 to read as follows:

 

3129.9             The filing of any modification request under this section shall not act to toll the expiration of the underlying order and the grant of any such modification shall not extend the validity of any such order.

 

Section 3130, TIME LIMITS ON THE VALIDITY OF BOARD ORDERS, is amended as follows:

 

Subsection 3130.6 is amended by striking the phrase “grant one extension of”, so that the provision reads as follows:

 

3130.6             The Board may extend the time periods in § 3130.1 for good cause shown upon the filing of a written request by the applicant before the expiration of the approval; provided, that the Board determines that the following requirements are met:

 

(a)        The extension request is served on all parties to the application by the applicant, and all parties are allowed thirty (30) days to respond;

 

(b)        There is no substantial change in any of the material facts upon which the Board based its original approval of the application that would undermine the Board’s justification for approving the original application; and

 

(c)        The applicant demonstrates that there is good cause for such extension, with substantial evidence of one or more of the following criteria:

 

(1)        An inability to obtain sufficient project financing due to economic and market conditions beyond the applicant’s reasonable control;

 

(2)        An inability to secure all required governmental agency approvals by the expiration date of the Board’s order because of delays that are beyond the applicant’s reasonable control; or

 

(3)        The existence of pending litigation or such other condition, circumstance, or factor beyond the applicant’s reasonable control.

 

Subsection 3130.9 is amended by striking the phrase “filed at least thirty (30) days prior to the date upon which an order is due to expire”, so that the provision reads as follows:

 

3130.9            A request for a time extension shall toll the expiration date for the sole purpose of allowing the Board to consider the request. 

 

Chapter 32, ADMINISTRATION AND ENFORCEMENT, § 3202, BUILDING PERMITS, § 3202.1 is amended to clarify that the Zoning Administrator’s review of an application to alter an existing structure is limited to whether the plans for the alteration comply with the Zoning Regulations, so that the provision reads as follows:

 

3202.1             Except as provided in § 3202.5, 3202.7, or 3202.8, a building permit shall not be issued for the proposed erection, construction, conversion, or alteration of any structure unless the plans of and for the erection, construction, conversion, or alteration fully conform to the provisions of this title.

 

On December 10, 2012, upon the motion of Chairman Hood, as seconded by Commissioner Miller, the Zoning Commission PROPOSED the amendments at its public meeting by a vote of 5-0-0 (Anthony J. Hood, Robert E. Miller, Peter G. May, and Michael G. Turnbull to propose; Marcie I. Cohen to propose by absentee ballot).

 

On February 25, 2013, upon the motion of Chairman Hood, as seconded by Commissioner Turnbull, the Zoning Commission ADOPTED the amendments as proposed at its public meeting by a vote of 4-0-0 (Anthony J. Hood, Marcie I. Cohen, Robert E. Miller, Peter G. May, and Michael G. Turnbull to adopt).

 

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 June 14, 2013.

 

 

 

 

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[1] Subsection 3106.3 reads:

 

3106.3   In considering any request for party status pursuant to § 3106.2, the Board shall grant party status only if the person requesting party status has clearly demonstrated that the person's interests would likely be more significantly, distinctively, or uniquely affected in character or kind by the proposed zoning relief than those of other persons in the general public.

 

The provision is being moved to § 3113 and restated as proposed new § 3113.21.