6127216 Zoning Commission Notice of Emergency Rulemaking: Case No. 14-11C(Text Amendment – Office of Planning’s Request for Technical Correction to § 336.13)
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ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA
NOTICE OF EMERGENCY RULEMAKING
Z.C. Case No. 14-11C
(Text Amendment – Office of Planning’s Request for Technical Correction to § 336.13)
The Zoning Commission for the District of Columbia (Commission), pursuant to the authority set forth in §1 of the Zoning Act of 1938, approved June 20, 1938 (52 Stat. 797; D.C. Official Code § 6-641.01 (2012 Repl.)) and the authority set forth in Section 6(c) of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1206; D.C. Official Code § 2-505(c) (2012 Repl.)), hereby gives notice of the adoption, on an emergency basis, of an amendment making a technical correction to § 336.13 of the Zoning Regulations of the District of Columbia, Title 11 of the District of Columbia Municipal Regulations (DCMR).
The amendment corrects the last word of § 336.13 so that it reads “section” instead of “subsection.”
The explanation for this emergency action is as follows:
On June 26, 2015, a Notice of Final Rulemaking was published in the D.C. Register at 62 DCR 8883 that, among other things, adopted a new § 336.13, which read:
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.
Emphasis added.
Among other things, § 336.5 requires that there must be a minimum of nine hundred square feet (900 sq. ft.) of land area per dwelling unit. Thus, an applicant wanting to expand an apartment house described in § 336.13 would have to apply for a variance if there would be less than the nine hundred square feet (900 sq. ft.) per unit. The variance test includes a requirement that the Board of Zoning Adjustment (BZA) find that the relief can be granted “without substantial detriment to the public good.” D.C. Official Code § 6-641.07(g)(3).
On July 31, 2015, a Notice of Emergency and Proposed Rulemaking was published in the D.C. Register at 62 DCR 10432 that proposed a technical correction to § 336.13. The proposed correction did not include a change to the word “section.” Although the Commission voted to adopt the text as proposed, the Notice of Final Rulemaking that gave notice of the adoption of the technical correction, as published in the D.C. Register on September 25, 2015 at 62 DCR 10737, replaced the word “section” with “subsection.”
The Office of Documents and Administrative Issuances (ODAI) prepared an Errata Notice to administratively correct § 336.13, which was published in the July 15, 2016 edition of the D.C. Register at 63 DCR 9531. However, on July 19, 2016, BZA was scheduled to hear an application to expand an existing apartment house that presently does not, and as expanded will not, meet the nine hundred square feet (900 sq. ft.) per unit requirement. In order to ensure that the BZA applies the intended standard on July 19th, the Commission took the emergency corrective action on July 11th, concluding that doing so was necessary for the “immediate preservation of public ... welfare.” D.C. Official Code § 2-505(c).
This emergency rule was adopted on July 11, 2016 and became effective on that date. The emergency rule will expire on September 6, 2016, which is the date that § 336.13 will be repealed[1] and replaced by Subtitle U § 320.2(c), or the date the Errata Notice is published in the D.C. Register, whichever occurs first.
Title 11 DCMR was amended on an emergency basis as follows (deleted language is shown in bold strikethrough text):
Chapter 3, R-2, R-3, R-4, AND R-5 RESIDENCE DISTRICT USE REGULATIONS, of Title 11 DCMR, ZONING, §336, CONVERSION OF A RESIDENTIAL BUILDING EXISTING PRIOR TO MAY 12, 1958, TO APARTMENT HOUSES (R-4), § 336.13, is amended to read as follows:
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, 3202.9, or 3202.10, shall be considered a conforming use and structure, but shall not be permitted to expand either structurally or through increasing the number of units, unless approved by the Board of Zoning Adjustment pursuant to §§ 3104.1 and 3104.3 and this
subsection.
[1] See Notice of Final Rulemaking published in Part II of the March 4, 2016 edition of the District of Columbia Register.
