5522227 Zoning Commission Notice of Final Rulemaking & Order No. 14-11 (Text Amendment to Chapters 1, 3, 4, 26, 31, and 32, Maximum Height and Minimum Lot Dimension Requirements and Use Permissions in the R-4 District)
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ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA
NOTICE OF FINAL RULEMAKING
AND
ZONING COMMISSION ORDER NO. 14-11
Z.C. Case No. 14-11
(Text Amendment to Chapters 1, 3, 4, 26, 31, and 32, Maximum Height and Minimum Lot Dimension Requirements and Use Permissions in the R-4 District)(June 8, 2015)
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, as amended; D.C. Official Code § 6-641.01 (2012 Repl.)), hereby gives notice of adoption of the following text amendment §§ 199, 330, 336, 337, 400, 401, 407, 2602, 2603, 3104, and 3202 of Title 11 (Zoning), of the District of Columbia Municipal Regulations (DCMR). A Notice of Proposed Rulemaking was published in the D.C. Register on May 1, 2015, at 62 DCR 5514. The amendment shall become effective upon the publication of this notice in the D.C. Register.
Description of the Amendments
The amendments are intended to address concerns heard by the Commission with respect to what have come to be called “pop-ups” and to respond to the following policy items in the Comprehensive Plan that call for the conservation of the character of row house neighborhoods:
Policy LU-2.1.7: Conservation of Row House Neighborhoods – Protect the character of row house neighborhoods by requiring the height and scale of structures to be consistent with the existing pattern, considering additional row house neighborhoods for “historic district” designation, and regulating the subdivision of row houses into multiple dwellings. Upward and outward extension of row houses which compromise their design and scale should be discouraged. (309.12.)
Policy LU-2.1.9: Addition of Floors and Roof Structures to Row Houses and Apartments – Generally discourage increases in residential density resulting from new floors and roof structures (with additional dwelling units) being added to the tops of existing row houses and apartment buildings, particularly where such additions would be out of character with the other structures on the block. Roof structures should only be permitted if they would not harm the architectural character of the building on which they would be added or other buildings nearby. (309.14.)
Policy LU-2.1.1: Variety of Neighborhood Types – Maintain a variety of residential neighborhood types in the District, ranging from low-density, single family neighborhoods to high-density, multi-family mixed use neighborhoods. The positive elements that create the identity and character of each neighborhood should be preserved and enhanced in the future. (309.5.)
Policy H-1.3.1: Housing for Families - Provide a larger number of housing units for families with children by encouraging new and retaining existing single family homes, duplexes, row houses, and three- and four-bedroom apartments. (505.6.)
A pop-up generally is an addition to a row dwelling that results in the structure uncharacteristically rising above the roofs of adjacent dwellings. Pop-ups are frequently constructed to convert a one- (1) family-dwelling or flat[1] into an apartment house.
Pop-ups have been on the increase in the R-4 Zone District, where a maximum height of forty feet (40 ft.) is permitted and where buildings existing prior to May 12, 1958, may be converted to apartment houses provided there is nine hundred square feet (900 sq. ft.) of land area for each existing and added unit. A one- (1) family dwelling may be converted to a flat as a matter of right, and therefore references in this Order to conversions of a residential building only concern conversions of a one- (1) family dwelling or flat to an apartment house.
The amendments reduce the matter-of-right height for R-4 buildings from forty feet (40 ft.) to thirty-five feet (35 ft.), except that a height of forty feet (40 ft.) is permitted for new construction of three (3) or more immediately adjoining residential row dwellings built concurrently on separate record lots. (§ 400.1.) The existing three- (3) story limit will remain for all buildings. Special exception relief from the thirty-five foot (35 ft.) height limitation will be available provided that certain conditions are met. (§ 400.23.) The definition of “mezzanine” will also be amended to provide that in an R-4 Zone District a mezzanine will be considered a story in determining the maximum number of permitted stories within a principal structure, but not for an accessory building.
The amendments distinguish between conversion of residential buildings and non-residential buildings. Conversion of pre-May 12, 1958 non-residential buildings to apartment houses will continue to be permitted as a matter of right (§ 330.7), but the conversion of residential buildings will require special exception relief (§ 336). Both types of conversions will be subject to specific conditions, including the requirement that there must be nine hundred square feet (900 sq. ft.) of land area for each unit. Special exception relief will be available from the nine hundred square foot (900 sq. ft.) requirement for conversions from non-residential structures, but area variance relief from that requirement will be required for a conversion from a residential building. In addition, the fourth (4th) unit and every other additional even-numbered unit in an apartment house converted from a residential building must be set aside for eligible moderate-income households pursuant to the Inclusionary Zoning (IZ) regulations set forth in Chapter 26 of the Zoning Regulations. Apartment houses converted from non-residential conversions will continue to be subject to the existing IZ triggering events.
A conversion involving a height in excess of thirty-five feet (35 ft.) will be subject to the special exception relief provisions of §§ 336 or 337, rather than § 400.23.
Three (3) of the design criteria applicable to conversions will also be applied to all buildings in the R-4 Zone District pursuant to new § 400.24, with special exception relief available through § 400.23.
Ordinarily, construction authorized by a building permit must be in accordance with the Zoning Regulations in place on the date the permit was issued. (11 DCMR § 3202.2.) That means that even if a building permit application has been filed, that application becomes subject to any amendments to the text of the Zoning Regulations that are adopted while the permit application is being processed. However, once the building permit is issued, construction rights are vested unless a modification to the building permit is granted.
These amendments establish an exception that will allow certain types of building permit applications for residential construction in the R-4 Zone District to be processed based upon the Zoning Regulations in place prior to July 17, 2014, which is the date that the Commission decided to hold a hearing on these amendments. The availability of the exception depends upon either the date the building permit application was filed and deemed complete by the Department of Consumer and Regulatory Affairs (DCRA), or the date that related approvals were requested and granted by the Board of Zoning Adjustment (BZA), the Historic Preservation Review Board (HPRB) (or its staff), or the Commission of Fine Arts (CFA). The following summarizes the circumstances under which a building permit will be processed under the Zoning Regulations in place on July 17, 2014.
Type of construction in R-4 Zone District
Circumstance
Date(s)
New one-family dwelling or flat, or an addition to: (a) an existing one-family dwelling; (b) an existing flat; or (c) an existing apartment house
Filing of building permit application (including a foundation-to-grade permit application) legally filed with, and accepted as complete by DCRA.
Prior to February 1, 2015
Conversion of a residential building to apartment house
Filing of building permit application (including a foundation-to-grade permit) legally filed with, and accepted as complete by the DCRA.
Prior to July 17, 2014
All residential construction
Project has an unexpired approval of variance or special exception by the BZA or an unexpired approval of a design or concept design by HPRB (or staff) or CFA.
Approved prior to the effective date of the amendments; or
Approved after the effective date, but application filed prior thereto.
Procedures Leading to Adoption of the Amendments
On June 24, 2014, the Office of Planning (OP) submitted a memorandum that served as a petition requesting amendments to the regulations to address the issue of uncharacteristic and incompatible additions in the R-4 Zone District for habitable space. (Exhibit 1.) OP’s report recommended amendments with respect to four issues: (1) to change the matter-of-right height in the R‑4 District from forty feet (40 ft.) to thirty-five feet (35 ft.); (2) to allow up to forty feet (40 ft.) by special exception, subject to certain conditions; (3) to change the definition of “mezzanine” so that it is considered a story for purposes of limits on the number of stories; and (4) disallow the conversion of one-family dwellings or flats to apartment buildings and allow conversion of non-residential buildings only by special exception subject to certain conditions.[2]
At its regularly scheduled meeting on July 17, 2014, the Commission considered whether to schedule the OP proposal for a public hearing.
At the meeting, OP amended its recommendation to include two (2) alternative amendments that the Commission set down, and are advertised in concept:
Alternative 1 (OP):
CHAPTER 26, INCLUSIONARY ZONING
If the Commission decides to continue to permit the conversion of a residential structure to an apartment house, either by right or by special exception, OP proposes such conversions be subject to Inclusionary Zoning (IZ) requirements as follows:
1) If the conversion complies with the requirement of § 401.3 that there be at least 900 square feet of lot area per dwelling unit (“900 SF Requirement”), the fourth unit and all units beyond four would be subject to IZ at 60% Area Median Income (AMI); or
2) If the conversion is enabled by zoning relief to the 900 SF Requirement, all units beyond the permitted two, would be subject to IZ at 60% AMI.
Alternative 2 (OP):
401.12 MINIMUM LOT DIMENSIONS (R)
Permit the conversions of non-residential properties only by special exception and allow for relief from the 900 SF of land per unit requirement as part of that special exception, with no limit on the number of units that could be permitted.
After consideration of the OP proposals, the Commission took action to also set down other alternatives for public comment:
Alternative 3 (ZC):
401.13 MINIMUM LOT DIMENSIONS (R)
Continue to permit the matter-of-right conversions of all structures to apartment houses subject to the 900 SF of land per unit requirement, but permit special exception relief from the 900 SF requirement for an apartment house conversion of no more than four units.
Alternative 4 (ZC):
401.13 MINIMUM LOT DIMENSIONS (R)
Continue to permit the matter-of-right conversions of all structures to apartment houses subject to the 900 SF of land per unit requirement, but permit special exception relief from the 900 SF requirement with no limit on the number of units that could be permitted.
A Notice of Public Hearing was published in the D.C. Register on September 12, 2014, at 61 DCR 9323.
In response to notice given pursuant to § 13 of the Advisory Neighborhood Commissions Act of 1975, effective March 26, 1976 (D.C. Law 1-21; D.C. Official Code § 1-309.10), the Commission received written reports from a number of Advisory Neighborhood Commissions (“ANCs”).
ANC 1A submitted a report dated October 9, 2014. (Exhibit 5.) The report indicated that at a properly noticed public meeting on October 8, 2014, ANC 1A voted, with a quorum present, 7‑0‑0 to adopt a resolution in support of the proposal. ANC 1A expressed concern regarding the increasing number of pop-ups and conversions of one- (1) family dwellings and flats to apartment buildings, as well as the reduction in the number of family-sized housing units in the District, which, the ANC stated, had become less affordable due to the existing R‑4 regulations. Accordingly, ANC 1A recommended approval of the amendments and requested that additional language be added to do the following: (1) permit conversion of a residential structure to an apartment house in the R‑4 Zone District by special exception with the condition that any units above two (2) be subject to Inclusionary Zoning at sixty percent (60%) Area Median Income (AMI); and (2) permit conversion of a non-residential structure to an apartment house in the R‑4 District by special exception with no minimum requirement for square feet per dwelling unit. ANC 1A additionally urged OP to develop language to govern the development of alley lots in the R‑4 Zone District.
ANC 1D submitted a report dated October 23, 2014. (Exhibit 6.) The report indicated that at a properly noticed public meeting on October 21, 2014, ANC 1D voted, with a quorum present, 3‑0 to adopt a resolution in support of the proposal. ANC 1D also requested that the Mount Pleasant Historic District be exempted without delay from the existing regulations allowing matter-of-right conversions of one- (1) family dwellings and flats to apartment buildings. The ANC stated that the Mount Pleasant neighborhood is experiencing a wave of developer-driven conversions that threaten the quality and character of the neighborhood and its demographic and economic diversity as housing becomes less affordable for existing families who support neighborhood schools and other community institutions.
ANC 6A submitted a report dated December 17, 2014. (Exhibit 7.) The report indicated that at a properly noticed public meeting on December 11, 2014, ANC 6A voted, with a quorum present, 6‑0‑0 to adopt a resolution in support of the proposal based on its concern that two- (2) story dwellings are currently threatened by pop-ups. ANC 6A further stated that the proposed amendments strike the correct balance by permitting conversions in appropriate cases, but only with oversight by the BZA and community input.
ANC 1B submitted a report dated December 23, 2014. (Exhibit 8.) At a properly noticed public meeting on December 4, 2014, ANC 1B, with a quorum present, voted 7‑0‑0 in support of the proposal, which stated the same concerns and recommendations as those raised by ANC 1A in its report, discussed above.
On December 30, 2014, ANC 4C submitted two (2) reports, both dated September 12, 2014, and both adopted at the ANC’s September 10, 2014, public meeting. In its first report (Exhibit 9), ANC 4C expressed concern regarding the conflict between pop-ups and solar energy, specifically the District’s D.C. Sustainability Act of 2012. ANC 4C recommended that the Commission and other District government agencies: (1) resolve permitting conflicts that jeopardize sun access to existing solar homes; (2) require solar homes to be incorporated into the Miss Utility system in order to alert developers of new construction projects of their existence; (3) adopt solar easement laws to protect solar homes from sun obstruction; and (4) require a variance for the conversion of a one-family home to more than two (2) dwelling units. In its second report (Exhibit 10), ANC 4C stated concern that residents were not receiving notice of new pop-ups or had misinterpreted notices from government agencies. Further, the ANC expressed concern that pop-ups are changing the existing character of neighborhoods by creating apartment zones in traditionally one- (1) family residential neighborhoods. The ANC stated support for the proposed amendments and, as in its first report, recommended that a variance be required for conversion of a one- (1) family home to more than two (2) dwelling units.
After the Commission took proposed action, ANC 4C submitted another report on June 1, 2015, dated May 27, 2015, in which the ANC reiterated its support for the proposed amendments. (Exhibit 264.)
ANC 6B submitted a report dated January 2, 2015. (Exhibit 11.) At a properly noticed public meeting on December 9, 2014, ANC 6B, with a quorum present, took votes on each of its recommendations. ANC 6B voted 6‑3 to support the proposed amendments with respect to height limitations based on concerns about the proliferation of pop-ups. However, the ANC stated concern that the proposed language for a special exception to allow a height of forty feet (40 ft.) would place the BZA in the realm of historic design review rather than traditional zoning criteria, such as impact on light and air. Additionally, ANC 6B voted 7‑1‑1 to oppose amending the definition of “mezzanine” to include it in the number of stories. ANC 6B stated that the current definition does not create inconsistent building height, especially in light of the proposed amendment to permitted height. ANC 6B voted 6‑1‑2 to support continuing to permit conversion of a residential structure to an apartment house as a matter of right, subject to Inclusionary Zoning requirements as follows: (1) if the conversion complies with the minimum requirement of nine hundred square feet (900 sq. ft.) per unit, the fourth (4th) unit and all units beyond four should be subject to Inclusionary Zoning at sixty percent (60%) AMI; and (2) if the conversion is enabled by zoning relief from the minimum square foot requirement, all units above two (2) should be subject to Inclusionary Zoning at sixty percent (60%) AMI. ANC 6B stated that it was uncomfortable with repealing matter-of-right conversions to apartment houses at a time when the District needs as much affordable housing as possible.
ANC 1C submitted a report dated January 9, 2015, in which it stated that, at a properly noticed public meeting on January 7, 2015, it voted, with a quorum present, 6‑0 to adopt a resolution in support of the proposed amendments. (Exhibit 14.) After the Commission took proposed action, ANC 1C submitted another report dated June 1, 2015, in which it reiterated its support for OP’s proposals and recommendations. (Exhibit 298.)
ANC 6C submitted two (2) reports. The first (1st) was dated January 15, 2015, and indicated that the ANC voted at a properly noticed public meeting on December 8, 2014, with a quorum present, by a vote of 5‑0‑0, to adopt the following recommendations. (Exhibit 75.) ANC 6C stated support for the amendments with respect to the proposed maximum height. ANC 6C opposed amending the definition of “mezzanine,” stating that use of a mezzanine does not allow a property owner to circumvent height restrictions and that the current definition had allowed owners to construct or alter accessory structures while staying under the applicable height limit. ANC 6C recommended allowing conversion of residential and non-residential properties to an apartment house, but only by special exception subject to conditions related to light, air, and privacy concerns. Further, the ANC recommended no provision for Inclusionary Zoning requirements or special exception relief from the minimum square feet per unit requirement.
ANC 6C’s second report was submitted after the Commission took proposed action on the amendments and was dated May 18, 2015. (Exhibit 211.) On May 13, 2015, ANC 6C voted, with a quorum present, 6‑0‑0 to recommend that the Commission do the following: (1) reduce the matter-of-right height from forty feet (40 ft.) to thirty-five feet (35 ft.), measured from grade; (2) allow a height of forty feet (40 ft.) by special exception, with requirements that any addition not block solar power systems or required vents or chimneys, not have an undue impact on the light and air of adjacent properties, and not substantially intrude on the character, scale, and pattern of houses on the street; and (3) amend the definition of “mezzanine” to be counted as a story, except for accessory structures.
ANC 5E submitted a report dated January 29, 2015. (Exhibit 189.) At a properly noticed public meeting on January 20, 2015, ANC 5E voted, with a quorum present, 6‑0‑3 to recommend approval of the amendments. The ANC also recommended that, to obtain a special exception for a height of up to forty feet (40 ft.), an application should be required to demonstrate that the structure will not have a substantially adverse effect on the defining architectural features of the building or result in the removal of such features. Like other ANCs, ANC 5E expressed concern that pop-ups often block sunlight and are incompatible with the character of the surrounding neighborhood. ANC 5E also stated that pop-ups may negatively impact the market value of surrounding homes.
ANC 4B submitted two (2) reports, the first dated February 6, 2015. (Exhibit 192.) At a properly noticed public meeting on February 5, 2015, ANC 4B voted, with a quorum present, 8‑0‑0 to make the following recommendations. ANC 4B recommended requiring special exception relief for additions up to a height of forty feet (40 ft.), with conditions as provided in the proposed amendments. The ANC also recommended applying this restriction to the R‑5 Zone District and requiring that all new regulations for residential districts include requirement for special exception review so that developments inconsistent with the regulations will be reviewed and approved on an individual basis.
ANC 4B’s second report was submitted after the Commission took proposed action on the amendments and was dated May 21, 2015. (Exhibit 219.) At a properly noticed public meeting on May 18, 2015, ANC 4B voted, with a quorum present, 6‑2‑1 to adopt a resolution with the following recommendations. ANC 4B supported reducing the matter-of-right height in the R‑4 Zone District to thirty-five feet (35 ft.), but did not support permitting a height of forty feet (40 ft.) by special exception. The ANC supported amending the definition of “mezzanine” to be counted as a story. ANC 4B did not support permitting conversions of residential buildings to apartment buildings with up to four (4) units as a matter of right and recommended limiting the number of matter-of-right units to two (2). ANC 4B supported the proposed conditions to conversion of a residential building contained in proposed § 330.7, particularly paragraphs (h), (i), (j), and (k). The ANC did not support providing special exception relief from §§ 330.7(b), (e), (f), (h), (i), (j), or (k). ANC 4B also requested that the conditions provided in § 330.7 apply not only to conversions to apartment buildings but also to conversions to a flat. ANC 4B recommended that the proposed amendments be made effective immediately upon publication in the D.C. Register for all conversions where a permit has not yet been issued, even if a permit application has already been filed. ANC 4B also requested that the Commission place a moratorium or suspend the relevant existing Zoning Regulations until the new amendments are effective, and that the Commission finalize the amendments as quickly as possible.
On January 15, 2015, the Commission held a properly noticed public hearing on the proposed amendments, at which it heard testimony from a large number of residents, community organizations, members of the development community, and ANC commissioners. Additionally, prior to taking proposed action on the amendments, the Commission received over 160 letters from the community commenting on the proposed amendments, both in support and in opposition of the proposed amendments as a whole or in part. At the conclusion of the hearing the Commission authorized the Secretary to schedule the case for discussion only at its next public meeting.
On February 9, 2015, the Commission held a properly noticed public meeting at which the Commissioners deliberated on the proposed amendments. The Commission requested that OP provide it with information concerning the demographic trends of family size, general R-4 property values, the feasibility of imposing inclusionary zoning controls on units above three (3), and potential design guidelines or requirements for additions. The Commission also requested that OP meet with small developers. On March 26, 2015, OP submitted a supplemental report in which it provided the information requested by the Commission. (Exhibit 193.)
The OP report also made a series of recommendations and provided a worksheet for the Commission to use during its deliberations. The report assumed that the Commission would continue to permit the matter-of-right conversion of non-residential buildings. As to the conversion of residential buildings, OP suggested two options: (1) permit matter-of-right conversion to an apartment house with up to four (4) units, with special exception relief for additional units; or (2) require special exception review for any conversion of a residential building to an apartment house. OP recommended design standards for both types of conversion as well as for conversions involving non-residential dwellings. Among other things, the design standards for both matter-of-right and special exception conversions of residential buildings called for the fourth (4th) and every other additional unit to be subject to the Inclusionary Zoning Regulations and for adherence to the nine hundred square feet (900 sq. ft.) of land area per dwelling unit requirement.
On March 30, 2015, the Commission deliberated upon the issues presented and voted to allow matter-of-right conversions of non-residential buildings to apartment houses provided there is nine hundred square feet (900 sq. ft.) of lot area for every dwelling unit, and the matter-of-right conversion of residential structures up to four (4) units, with additional units subject to special exception review also subject to the same minimum land area requirement. The Commission also accepted the OP recommended design standards as to each type of conversion and allowed for special exception relief for some, but not all, of these standards.
Pursuant to the Commission’s vote, the proposed amendments were referred to the National Capital Planning Commission (NCPC) on April 2, 2015, for the thirty- (30) day period of review required under § 492 of the District Charter. A Notice of Proposed Rulemaking was published in the May 1, 2015, edition of the D.C. Register at 62 DCR 5514.
In response to the Notice of Proposed Rulemaking, the Commission received over two hundred (200) written comments including correspondence from homeowners, the development community, civic groups, and Councilmember Brianne K. Nadeau. The comments reflected and added to the full range of opinions the Commission heard during its public hearing. Some comments urged the Commission to retain the status quo, while others recommended that the Commission adopt the rules either as proposed or with various modifications, which would either make the rules more restrictive or more lenient. The Commission also received comments as to the timing and grandfathering (a.k.a. vesting) of the rules, with some comments urging the Commission to make the rules immediately effective or allow projects with pending building permits to be constructed under the existing regulations.
The Commission also received reports from ANC 6C, 4C, and 1C, as discussed above, and correspondence from Council Chairman Phil Mendelson enclosing Council Resolution 21-86, the “Sense of the Council in Support of a Limitation on Pop-ups Emergency Resolution of 2015,” adopted by the Council on April 14, 2015. That resolution noted that many residents testified against pop-ups at the Zoning Commission hearing. The resolution then noted the various reasons for that opposition and the policy of the District to promote access to and the integrity of safe and quality housing and neighborhoods for all District residents. The resolution closed by stating that it was the sense of the Council that the Commission should act immediately to finalize zoning regulations that address the pending issues set forth in the resolution.
In a letter dated May 13, 2015, the NCPC Executive Director informed the Commission that, through a delegated action dated May 1, 2015, he found that the proposed text amendments were not inconsistent with the Federal Elements of the Comprehensive Plan for the National Capital.
OP provided a second Supplemental Report dated June 1, 2015. (Exhibit 334.) The report first noted the need to correct a typographical error in proposed § 400.23. OP also requested clarifying revisions to certain of the proposed regulations suggested by the Zoning Administrator (ZA), as well as a new provision stating that the minor flexibility granted to the ZA by § 407 does not extend to the design requirements applicable to matter-of-right conversions pursuant to proposed §§ 330.7 and 330.8. OP further recommended that three (3) of the design requirements applicable to matter-of-right conversions apply to all R-4 buildings, with special exception relief available if those requirements cannot be met. Finally, on the issue of vesting, OP recommended that the construction of a residential building in the R-4 Zone District be permitted to be carried to completion pursuant to the provisions of the R-4 regulations in place as of date of setdown (July 17, 2014) if the approved building permit application was accepted as complete by and legally filed with DCRA on or before that date. Ordinarily, construction must comply with the text of the Zoning Regulations in place as of the date the building permit is issued.
On June 4, 2015, OP submitted a third Supplemental Report. (Exhibit 341.) OP stated that, since filing its second Supplemental Report, over ninety (90) additional public comments had been submitted, many with concerns about the vesting of the proposed amendments with respect to permit applications currently under review by DCRA. OP heard of several cases where the pending permits were for flats or modifications and additions to existing apartment houses. Additionally, some of these cases involved flats within a historic district, which were required to obtain conceptual approval from the HPRB prior to filing a building permit application, thus delaying the filing of a permit application in time to vest construction under OP’s original proposal. OP stated that such projects are consistent with the intent of preserving the R‑4 and do not involve conversions. Accordingly, OP recommended that the vesting language as proposed in its June 1, 2015, report be supplemented to move the building permit filing date for non-conversions to February 1, 2015 and also to permit vesting of construction rights for all R-4 residential construction based upon unexpired HPRB or BZA approvals occurring before the effective date of the rules, or post-effective date approvals where the BZA or HPRB application was filed before that date.
At its regularly scheduled public meeting held June 8, 2015, the Commission considered whether to take final action on the proposed amendments. The Commission took the opportunity to review its prior determination to permit the matter-of-right conversion of residential structures to up to four (4) units. The Commission acknowledged the concerns expressed by members of the public and the ANCs regarding the negative impacts of conversions of residential buildings in the R‑4 Zone District to apartment houses. The Commission remained sympathetic to the concerns of housing advocates and the development community that limiting such conversions to special exception could restrict the production of new housing at a point when the District’s housing needs have become acute. However, the Commission concluded that the balance must be struck in favor of protecting existing one- (1) family dwellings and flats consistent with the admonition of § 330.3 of the R-4 regulations that the district “shall not be an apartment house district as contemplated under the General Residence (R-5) Districts” and the stated policies of the Comprehensive Plan presented in the OP public presentation. (Exhibit 96.)
The Commission, therefore, voted 3-2-0 to permit the conversions of residential buildings to apartment houses only if approved by the BZA as a special exception consistent with OP’s recommendation in its March 2015 report. The special exception conditions included in proposed § 336 would continue to apply including the requirement that the fourth (4th) and every other unit would be subject to Inclusionary Zoning. In addition, consistent OP’s March 2015 report, conditions imposing a maximum height of thirty-five feet (35 ft.), and requiring nine hundred square foot (900 sq. ft.) limit of land area per unit were added to § 336.[3] Special exception relief from the thirty-five foot (35 ft.) height limitation would remain available through that provision.
The Commission also accepted the various clarifying amendments requested by OP and its revised vesting recommendations.
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 (2012 Repl.)) to give great weight to OP recommendations. The Commission believes that its final determination in this case substantially reflects the recommendation of OP.
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 the issues and concerns raised in the written report of the affected ANCs. To satisfy the great weight requirement, District agencies must articulate with particularity and precision the reasons why an affected ANC does or does not offer persuasive advice under the circumstances. For this docket the Commission received written reports from ANCs 1A, 1B, 1C, 1D, 4B ,4C, 5E, 6A, 6B, and 6C, all of which were described above. As was the case in the public comments, there was no unanimity of position amongst these reports, but there was a general sense that a height of forty feet (40 ft.) and the matter-of-right conversion of residential buildings to apartment houses should not be permitted as of right, but as special exceptions. For the reasons stated above, the Commission found that advice to be persuasive. The Commission does not share the concern expressed by ANC 6B that the special exception conditions to be utilized by the BZA extend beyond the normal considerations of adverse impact, nor does it believe it appropriate to extend the scope of this proceeding to alley lots and other zone districts.
Finally, as to requests that the Commission should have taken emergency action to make these amendments effective prior to the publication of this notice, the Commission concluded that the circumstances that would justify such action did not exist in this case. Thus, contrary to a published report, these amendments did not become effective on that date the Commission took final action.
For the reasons stated above, the Commission concludes that the adoption of the following text amendments is consistent with the best interests of the public and not inconsistent with the Comprehensive Plan for the National Capitol.
Title 11 DCMR, ZONING, is amended as follows:
Chapter 1, THE ZONING REGULATIONS, § 199 DEFINITIONS, § 199.1, is amended by amending the definition of “Mezzanine” to add the phrase “Except in an R-4 District,” to the second sentence and by adding a new third sentence so that the definition will read as follows:
Mezzanine - a floor space within a story between its floor and the floor or roof next above it and having an area of not more than one-third (1/3) of the area of the floor immediately below. Except in an R-4 Zone District, a mezzanine shall not be considered a story in determining the maximum number of permitted stories. In an R-4 Zone District, a mezzanine shall be considered a story in determining the maximum number of permitted stories within a principal structure but shall not be considered a story in determining the maximum number of permitted stories within an accessory building.
Chapter 3, R-2, R-3, R-4, AND R-5 RESIDENCE DISTRICT USE REGULATIONS, is amended as follows:
Section 330, R-4 DISTRICTS: GENERAL PROVISIONS, is amended as follows:
Subsection 330.5(e) is repealed so that the entire subsection reads as follows:
330.5 The following uses shall be permitted as a matter of right in an R-4 District:
(a) Any use permitted in R-3 Districts under § 320.3;
(b) Child/Elderly development center located in a building that was built as a Church hand that has been used continuously as a church since it was built; provided, that all of the play space required for the center by the licensing regulations shall be located on the same lot on which the center is located;
(c) Child/Elderly development center or adult day treatment facility; provided, that the center shall be limited to no more than sixteen (16) individuals;
(d) Community-based residential facility; provided that, notwithstanding any provision in this title to the contrary, the Zoning Administrator has determined that such community-based residential facility, that otherwise complies with the zoning requirements of this title that are of general and uniform applicability to all matter-of-right uses in an R-4 District, is intended to be operated as housing for persons with handicaps. For purposes of this subsection, a "handicap" means, with respect to a person, a physical or mental impairment which substantially limits one or more of such person's major life activities, or a record of having, or being regarded as having, such an impairment, but such item does not include current, illegal use of, or addiction to, a controlled substance;
(e) [REPEALED];
(f) Flat;
(g) Hospital, sanitarium, or clinic for humans;
(h) Museum; and
(i) Private club, lodge, fraternity house, sorority house, or dormitory, except when the use is a service customarily carried on as a business.
By adding new § 330.7 to read as follows:
330.7 Conversion of an existing non-residential building or structure existing prior to May 12, 1958, to a residential building or structure shall be permitted as a matter of right in the R-4 Zone District subject to the following conditions:
(a) There is an existing non-residential building on the property at the time of filing an application for a building permit;
(b) The maximum height of any addition to the existing structure shall not exceed thirty-five feet (35 ft.);
(c) There shall be a minimum of nine hundred square feet (900 sq. ft.) of land area per dwelling unit;
(d) An addition shall not extend further than ten feet (10 ft.) past the furthest rear wall of any principal residential building or structure on an adjacent property;
(e) A roof top architectural element original to the structure such as a turret, tower, or dormers shall not be removed or significantly altered, including changing its shape or increasing its height, elevation, or size;
(f) Any addition, including a roof structure or penthouse, shall not block or impede the functioning of a chimney or other external vent on an adjacent property required by any municipal code;
(g) Any addition, including a roof structure or penthouse, shall not interfere with the operation of an existing or permitted solar energy system on an adjacent property, as evidenced through a shadow, shade, or other reputable study acceptable to the Zoning Administrator; and
(h) An apartment house in an R-4 Zone District converted from a non-residential building prior to June 26, 2015, shall be considered a conforming use and structure, but shall not be permitted to expand unless approved by the Board of Zoning Adjustment pursuant to §§ 3104.1 and 3104.3 and § 337.
New § 336, CONVERSION OF A RESIDENTIAL BUILDING EXISTING PRIOR TO MAY 12, 1958, TO APARTMENT HOUSES (R-4) and new § 337, CONVERSIONS OF NON-RESIDENTIAL BUILDINGS OR STRUCTURES EXISTING PRIOR TO MAY 12, 1958, TO APARTMENT HOUSES (R-4), are added to read as follows:
336 CONVERSION OF A RESIDENTIAL BUILDING EXISTING PRIOR TO MAY 12, 1958, TO APARTMENT HOUSES (R-4)
336.1 Conversion of an existing residential building existing prior to May 12, 1958, to an apartment house shall be permitted as a special exception in the R-4 District if approved by the Board of Zoning Adjustment under § 3104, subject to §§ 336.2 through 336.11.
336.2 The maximum height of the residential building and any additions thereto shall not exceed thirty-five feet (35 ft.), except that the Board of Zoning Adjustment may grant a special exception from this limit under § 3104, subject to §§ 336.3 through 336.11.
336.3 The fourth (4th) dwelling unit and every additional even number dwelling unit thereafter shall be subject to the requirements of Chapter 26, Inclusionary Zoning, including the set aside requirement set forth at § 2603.9.
336.4 There must be an existing residential building on the property at the time of filing an application for a building permit.
336.5 There shall be a minimum of nine hundred square feet (900 sq. ft.) of land area per dwelling unit.
336.6 Any addition, including a roof structure or penthouse, shall not block or impede the functioning of a chimney or other external vent on an adjacent property required by any municipal code.
336.7 Any addition, including a roof structure or penthouse, shall not interfere with the operation of an existing or permitted solar energy system on an adjacent property, as evidenced through a shadow, shade, or other reputable study acceptable to the Zoning Administrator.
336.8 A roof top architectural element original to the house such as a turret, tower, or dormers shall not be removed or significantly altered, including changing its shape or increasing its height, elevation, or size.
336.9 Any addition shall not have a substantially adverse effect on the use or enjoyment of any abutting or adjacent dwelling or property, in particular:
(a) The light and air available to neighboring properties shall not be unduly affected;
(b) The privacy of use and enjoyment of neighboring properties shall not be unduly compromised; and
(c) The conversion and any associated additions, as viewed from the street, alley, and other public way, shall not substantially visually intrude upon the character, scale and pattern of houses along the subject street or alley.
336.10 In demonstrating compliance with § 336.9 the applicant shall use graphical representations such as plans, photographs, or elevation and section drawings sufficient to represent the relationship of the conversion and any associated addition to adjacent buildings and views from public ways.
336.11 The Board of Zoning Adjustment may require special treatment in the way of design, screening, exterior or interior lighting, building materials, or other features for the protection of adjacent or nearby properties, or to maintain the general character of a block.
336.12 The Board of Zoning Adjustment may modify or waive not more than two (2) of the requirements specified in §§ 336.6 through § 336.8; provided, that any modification or waiver granted pursuant to this section shall not be in conflict with § 336.9.
336.13 An apartment house in an R‑4 Zone District, converted from a residential building prior to June 26, 2015, or converted pursuant to §§ 3202.8 or 3202.9, shall be considered a conforming use and structure, but shall not be permitted to expand unless approved by the Board of Zoning Adjustment pursuant to §§ 3104.1 and 3104.3 and this section.
337 CONVERSIONS OF NON-RESIDENTIAL BUILDINGS OR STRUCTURES EXISTING PRIOR TO MAY 12, 1958, TO APARTMENT HOUSES (R-4)
337.1 Conversion of a non-residential building or other structure existing prior to May 12, 1958, to an apartment house and not meeting one (1) or more of the requirements of § 330.7, shall be permitted as a special exception in an R-4 Zone District if approved by the Board of Zoning Adjustment under § 3104, subject to the provisions of this section, except that no special exception relief shall be available from the requirements of § 330.7(a).
337.2 Any addition shall not have a substantially adverse effect on the use or enjoyment of any abutting or adjacent dwelling or property, in particular:
(a) The light and air available to neighboring properties shall not be unduly affected;
(b) The privacy of use and enjoyment of neighboring properties shall not be unduly compromised; and
(c) The conversion and any associated additions, as viewed from the street, alley, and other public way, shall not substantially visually intrude upon the character, scale, and pattern of houses along the subject street or alley.
337.3 In demonstrating compliance with § 337.2, the applicant shall use graphical representations such as plans, photographs, or elevation and section drawings sufficient to represent the relationship of the conversion and any associated addition to adjacent buildings and views from public ways.
337.4 The Board of Zoning Adjustment may require special treatment in the way of design, screening, exterior or interior lighting, building materials, or other features for the protection of adjacent or nearby properties, or to maintain the general character of a block.
Chapter 4, RESIDENCE DISTRICT: HEIGHT, AREA, AND DENSITY REGULATIONS, is amended as follows:
Section 400, HEIGHT OF BUILDINGS OR STRUCTURES (R), is amended as follows:
Subsection 400.1 is amended to provide height limits specific to the R-4 Zone District and § 400.2 is amended to add a cross-reference to new § 400.23, so that both subsections read as follows:
400.1 Except as specified in this chapter and in Chapters 20 through 25 of this title, the height of buildings or structures in a Residence District shall not exceed that given in the following table:
ZONE DISTRICT
MAXIMUM HEIGHT (Feet)
MAXIMUM HEIGHT (Stories)
R-1-A, R-1-B, R-2, R-3, R-5-A
R-5-B
R-5-C
R-5-D
R-5-E
40
50
60
90
90
3
no limit
no limit
no limit
no limit
R-4 ZONE DISTRICT
New construction of 3 or more immediately adjoining residential row dwellings built concurrently on separate record lots
All other structures
40
35
3
3
400.2 Except as provided in § 2510, the height of buildings or structures specified in § 400.1 may be exceeded as provided in §§ 400.3 through 400.13 and § 400.23.
A new § 400.23 is added to read as follows:
400.23 In an R-4 Zone District, a building or other structure may be erected to a height not exceeding forty feet (40 ft.) if approved by the Board of Zoning Adjustment as a special exception, under § 3104, subject to the following conditions, except that if the building is being converted to an apartment house, special exception relief from the thirty-five foot (35 ft.) height limitation is only available pursuant to §§ 336 or 337 as applicable:
(a) The applicant shall demonstrate that the overall building or structure height or upper addition will not have a substantially adverse effect on the use or enjoyment of any abutting or adjacent dwelling or property, in particular:
(1) The light and air available to neighboring properties shall not be unduly affected;
(2) The privacy of use and enjoyment of neighboring properties shall not be unduly compromised;
(3) An addition shall not block or impede the functioning of a chimney or other external vent on an adjacent property required by any municipal code;
(4) An addition shall not interfere with the operation of an existing or permitted solar energy system on an adjacent property, as evidenced through a shadow, shade, or other reputable study acceptable to the Zoning Administrator; and
(5) The resulting building or structure height, as viewed from the street, alley, and other public way, shall not substantially visually intrude upon the character, scale and pattern of houses along the subject street frontage;
(b) The applicant shall demonstrate that overall building or structure height or an upper addition resulting from the additional five feet (5 ft.) will not have a substantially adverse effect on the defining architectural features of the building or result in the removal of such features; and
(c) In demonstrating compliance with §§ 400.23(a) and (b), the applicant shall use graphical representations such as plans, photographs, or elevation and section drawings sufficient to represent the relationship of the new or extended building or structure to adjacent buildings and views from public ways.
400.24 In an R‑4 Zone District, the following provisions shall apply:
(a) A roof top architectural element original to the building such as a turret, tower or dormers, shall not be removed or significantly altered, including changing its shape or increasing its height, elevation, or size;
(b) Any addition, including a roof structure or penthouse, shall not block or impede the functioning of a chimney or other external vent on an adjacent property required by any municipal code; and
(c) Any addition, including a roof structure or penthouse, shall not interfere with the operation of an existing or permitted solar energy system on an adjacent property, as evidenced through a shadow, shade, or other reputable study acceptable to the Zoning Administrator.
400.25 In an R‑4 Zone District, relief from the design requirements of § 400.24 may be approved by the Board of Zoning Adjustment as a special exception under § 3104, subject to the conditions of § 400.23(a), (b), and (c). If relief is granted from compliance with § 400.24(b) or (c), the special exception shall not be conditioned upon compliance with that same requirement as stated in § 400.23(a)(3) or (4).
Section 401, MINIMUM LOT DIMENSIONS (R), is amended as follows:
By amending the portion of the table appended to § 401.3 pertaining to the conversion of a building or structure to an apartment house in an R-4 Zone District by inserting the phrase “pursuant to §§ 330.7 or 336” in the left hand column, so that portion of the table reads as follows:
n/a
MINIMUM LOT AREA
(square feet)
MINIMUM WIDTH OF LOT (feet)
R-4
Conversion of a building or structure pursuant to §§ 330.7 or 336 to an apartment house
900 sq. ft. /apartment or bachelor apartment
None prescribed.
By amending § 401.11 to strike the phrase “pursuant to § 330.5(e)” and insert the phrase “pursuant to former § 330.5(e) or existing §§ 330.7 or 336” in its place, so that the subsection reads as follows:
401.11 An apartment house in an R-4 Zone District, whether converted from a building or structure pursuant to former § 330.5(e) or existing §§ 330.7 or 336, or existing before May 12, 1958, may not be renovated or expanded so as to increase the number of dwelling units unless there are nine hundred square feet (900 sq. ft.) of lot area for each dwelling unit, both existing and new.
Section 407, MINOR FLEXIBILITY BY ZONING ADMINISTRATOR’S RULING (R), § 407.1 is amended by adding a new paragraph (c), so that the subsection reads as follows:
407.1 The Zoning Administrator is authorized to permit a deviation not to exceed two percent (2%) of the area requirements of §§ 401 and 403 (minimum lot dimensions and maximum percentage of lot occupancy); and a deviation not to exceed ten percent (10%) of the linear requirements of §§ 404 and 405 (minimum rear yard and minimum side yard requirements); and a deviation from the requirements of § 406 (minimum court dimensions), not to exceed either two percent (2%) of the area standard or ten percent (10%) of the width standard; provided, that:
(a) A building shall be allowed to deviate from the requirements of no more than two (2) of the sections identified in this subsection;
(b) The deviation or deviations shall be deemed by the Zoning Administrator not to impair the purpose of the otherwise applicable regulations; and
(c) The flexibility or deviation shall not be applicable for any calculation or for determining compliance with §§ 330.7 or 336.
Chapter 26, INCLUSIONARY ZONING, is amended as follows
Section 2602, APPLICABILITY, is amended to read as follows:
2602.2 A development with less than ten (10) dwelling units shall become subject to this chapter upon the filing of an application for a building permit to:
(a) Add one (1) or more dwelling units to a new development within a two (2)-year period after the issuance of the last certificate of occupancy, if the construction for which application has been filed would result in the development having ten (10) or more dwelling units;
(b) Convert a one (1)-family dwelling or flat to an apartment house in the R-4 Zone District for four (4) or more dwelling units approved by the Board of Zoning Adjustment; or
(c) Convert a non-residential building to an apartment house in the R-4 Zone District for ten (10) or more units.
Section 2603, SET-ASIDE REQUIREMENTS, is amended to as follows:
Subsection 2603.1 is amended by adding the phrase “Except as provided in § 2603.8” so that the entire subsection reads as follows:
2603.1 Except as provided in § 2603.8, an Inclusionary development for which the primary method of construction does not employ steel and concrete frame structure located in an R-2 through an R-5-B Zone District or in a C-1, C-2-A, W‑0, or W-1 Zone District shall devote the greater of ten percent (10%) of the gross floor area being devoted to residential use or seventy-five percent (75%) of the bonus density being utilized for inclusionary units.
Subsection 2603.3 is amended by adding the phrase “Except as provided in § 2603.9” so that the entire subsection reads as follows:
2603.3 Except as provided in § 2603.9, inclusionary developments located in R-3 through R-5-E, C-1, C-2-A, StE, W-0, and W-1 Zone Districts shall set aside fifty percent (50%) of inclusionary units for eligible low-income households and fifty percent (50%) of inclusionary units for eligible moderate-income households. The first inclusionary unit and each additional odd number unit shall be set aside for low-income households.
New §§ 2603.8 and 2603.9 are added to read as follows:
2603.8 An inclusionary development that results from a conversion of a one (1)-family dwelling or flat to an apartment house in the R-4 Zone District for four (4) or more dwelling units approved by the Board of Zoning Adjustment shall set aside every even numbered dwelling unit beginning at the fourth (4th) unit as an inclusionary unit.
2603.9 An inclusionary development that results from a conversion of a one (1)-family dwelling or flat to an apartment house in the R-4 Zone District for four (4) or more dwelling units approved by the Board of Zoning Adjustment shall set aside one hundred percent (100%) of inclusionary units for eligible moderate-income households.
Chapter 31, BOARD OF ZONING ADJUSTMENT RULES OF PRACTICE AND PROCEDURE, § 3104, SPECIAL EXCEPTIONS, is amended by inserting alphabetically the following new special exceptions into the chart appended to § 3104.1:
TYPE OF SPECIAL EXCEPTION
ZONE DISTRICT
SECTIONS IN WHICH THE CONDITIONS ARE SPECIFIED
Height in excess of 35 feet to a maximum of 40 feet in R-4 Districts as specified in § 400.1
R-4 District
§ 400.23
Conversion of non-residential building to apartment house not meeting the requirements of § 330.7
R-4 District
§ 337
Conversion of residential building to apartment house
R-4 District
§ 336
Chapter 32, ADMINISTRATION AND ENFORCEMENT, § 3202, BUILDING PERMITS, is amended as follows:
Subsection 3202.4 is amended by adding the phrase “Except as provided in §§ 3202.8 and 3202.9” so that the subsection reads as follows:
3202.4 Except as provided in §§ 3202.8 and 3202.9, any construction authorized by a permit may be carried to completion pursuant to the provisions of this title in effect on the date that the permit is issued, subject to the following conditions:
(a) The permit holder shall begin construction work within two (2) years of the date on which the permit is issued; and
(b) Any amendment of the permit shall comply with the provisions of this title in effect on the date the permit is amended.
New §§ 3202.8 and 3202.9 are added to read as follows:
3202.8 Notwithstanding § 3202.4, a building permit application (including a foundation-to-grade permit application) (the Application) for construction of a new one- (1) family dwelling or flat, or for construction of an addition or alteration to an existing one- (1) family dwelling or an existing flat not involving a conversion to an apartment house, or an addition or alteration to an existing apartment house in the R-4 Zone District shall be processed, and any work authorized by the permit may be carried to completion pursuant to the provisions of the R-4 regulations in place as of July 17, 2014, if:
(a) The Application was legally filed with, and accepted as complete by, the Department of Consumer and Regulatory Affairs prior to February 1, 2015; or
(b) The project has:
(1) An unexpired approval of a variance or special exception by the Board of Zoning Adjustment; or
(2) An unexpired approval of a design or concept design by the Historic Preservation Review Board (including a delegated approval made pursuant to 10-C DCMR §§ 319 through 321), or Commission of Fine Arts; and
(3) The vote to approve or the delegated action occurred:
(A) Prior to June 26, 2015; or
(B) On or after June 26, 2015, and the application was filed prior thereto.
3202.9 Notwithstanding § 3202.4, a building permit application (including a foundation-to-grade permit application) (the Application) for construction involving the conversion of a one- (1) family dwelling or flat to an apartment house in the R-4 Zone District shall be processed, and any work authorized by the building permit may be carried to completion pursuant to the provisions of the R-4 regulations in place as of July 17, 2014, if:
(a) The Application was legally filed with, and accepted as complete by, the Department of Consumer and Regulatory Affairs prior to July 17, 2014; or
(b) The project has:
(1) An unexpired approval of a variance or special exception by the Board of Zoning Adjustment; or
(2) An unexpired approval of a design or concept design by the Historic Preservation Review Board (including a delegated approval made pursuant to 10-C DCMR §§ 319 through 321), or Commission of Fine Arts; and
(3) The vote to approve or the delegated action occurred:
(A) Prior to June 26, 2015; or
(B) On or after June 26, 2015, and the application was filed prior thereto.
On March 30, 2015, at its public meeting, the Zoning Commission APPROVED the petition. The votes of the Commission taken at the meeting, as recorded and announced by the Secretary, may be found in the official transcript of the proceeding. (Anthony J. Hood, Marcie I. Cohen, Robert E. Miller, Peter G. May, and Michael G. Turnbull to approve).
On June 8, 2015, the Zoning Commission ADOPTED this Order. The votes of the Commission taken at the meeting, as recorded and announced by the Secretary, may be found in the official transcript of the proceeding. (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 § 3028.8, this Order shall become final and effective upon publication in the D.C. Register; that is, on June 26, 2015.
[1] A flat is defined in 11 DCMR §199 as “a two-family dwelling.”
[2] OP also initially recommended reducing the height of roof structures to ten feet (10 ft.) for one- (1) family and flat residential buildings. However, the Commission is currently considering amendments to its roof structure rules in Case No. 14-13 and will consider OP’s recommendations on this issue as part of that case.
[3] These conditions were part of the proposed § 330.7, which permitting a four (4) unit conversion of a residential building as a matter of right, which will now be eliminated.
