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ZONING COMMISSION FOR THE DISTRICT OF COLUMBIA
NOTICE OF FINAL RULEMAKING
AND
Z.C. ORDER NO. 14-03
Z.C. Case No. 14-03
(Text Amendment to § 2802.1)July 28, 2014
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, as amended (52 Stat. 797; D.C. Official Code § 6-641.01 (2012 Repl.)), hereby gives notice of adoption of the following text amendment to the Zoning Regulations of the District of Columbia, at Chapter 28 (Hill East (HE) District), Title 11 (Zoning), of the District of Columbia Municipal Regulations (DCMR). A Notice of Emergency and Proposed Rulemaking was published in the D.C. Register on April 18, 2014 at 61 DCR 4033 and a Notice of Second Proposed Rulemaking containing revised text was published in the D.C. Register on June 27, 2014 at 61 DCR 6472. The amendment shall become effective upon the publication of this notice in the D.C. Register.
Description of Amendment
The text amendment permits the location of an emergency shelter for up to one hundred (100) persons in Building 27 of the District of Columbia General Hospital Campus for a period of five (5) years. The amendment results from the need to relocate the Harriet Tubman Women’s Shelter, previously situated in Building 9 of the District of Columbia General Hospital Campus, after an assessment of the building revealed environmental hazards, such as elevated concentrations of airborne asbestos and the presence of materials containing lead. Originally, Building 9 was to be renovated, but after publication of the first notice of proposed rulemaking, the Department of Human Services (DHS) determined that such renovations would be too costly and determined that Building 9 should be demolished. During the planning process for the location of a new site, DHS and the Department of General Services (DGS) required a temporary location for the shelter within the campus. Building 27 was identified and determined as an appropriate location for the emergency shelter on a temporary basis.
The text amendment was adopted on an emergency basis at the Commission’s public hearing on March 10, 2014. The amendment has been revised, based on public comments and testimony, and now includes a five (5) year time limit on the emergency shelter use in Building 27. The five (5) year period will begin on the date this final order is published in the D.C. Register.
Procedures Leading to Adoption of Amendment
On February 28, 2014, the Office of Planning (OP) submitted a memorandum that served as a petition requesting amendments to the regulations. The proposed text amendment to 11 DCMR § 2802.1 added a new provision to the matter of right uses permitted in the Hill East District allowing the use of either Building 9 or Building 27 as an emergency shelter for up to one hundred (100) persons, not including supervisors or staff and their families.
On March 10, 2014, during its regularly scheduled public hearing, the Commission voted to adopt the amendment on an emergency basis, to set down the text amendment for a public hearing, and to authorize the immediate publication of a Notice of Emergency and Proposed Rulemaking. Considering the environmental hazards present in the existing shelter, the Commission accepted the Department of Human Service's conclusion that the emergency adoption of this amendment was necessary for the "immediate preservation of the public … health [and] safety." D.C. Official Code § 2-505(c) (2012 Repl.). A Notice of Public Hearing was published in the April 18, 2014 edition of the D.C. Register at 61 DCR 3988. A Notice of Emergency and Proposed Rulemaking was also published in the D.C. Register on April 18, 2014 at 61 DCR 4033. Accordingly, the emergency rule was scheduled to expire on July 8, 2014, which was the one hundred-twentieth (120th) day after the adoption of the rule.
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 a written report from Advisory Neighborhood Commission (ANC) 6B. In a report dated May 14, 2014, ANC 6B indicated that, at a properly noticed meeting with a quorum present, it voted 9-0-1 in opposition to the text amendment. The ANC noted that it supports the demolition of Building 9 and the relocation of shelter residents to safer housing, but raised concerns that the text amendment would allow for this purported temporary use to become a permanent one, potentially stalling the proposed redevelopment of the Hill East site. Instead, ANC 6B suggested amending § 2803.6 (b) to permit the use in Building 27 by special exception and limiting the use to a two (2) year period. Second, if the Commission decided to permit the Building 27 use by right, the ANC recommended imposing the same two (2) year time limit.
On May 23, 2014, OP filed its final report. OP responded to ANC 6B’s concerns about the emergency shelter use becoming permanent and hindering redevelopment of the Hill East area, noting that the text amendment would only allow for shelter use as a matter of right in a single building and would not permit expansion of the shelter. The District Department of Transportation (DDOT) submitted a report on May 27, 2014 and indicated that the proposed amendment was unlikely to cause adverse impacts on the travel conditions of the District’s transportation network.
On May 28, 2014, DHS submitted a letter in support of the text amendment. DHS also informed the Commission that, after hearing community feedback and further analyzing the building’s condition, Building 9 will no longer be considered as a final location for the shelter. Instead, Building 9 will be demolished and DHS has initiated a planning process for a permanent shelter location within the next five (5) years. DHS also indicated the proposed two (2) year limit proposed by ANC 6B would not provide sufficient time to complete the planning process, the construction of a new facility, and the relocation of the shelter residents.
In response to the filings from ANC 6B and DHS, OP filed a supplemental report on May 29, 2014. The supplemental report provided two (2) revisions to the proposed text amendment. First, OP omitted the reference to Building 9, thus permitting the emergency shelter use in Building 27 only. Second, OP limited the time period of the emergency shelter use to five (5) years. This proposed time frame was based on ANC 6B’s recommendation of a two (2) year limit and on DHS’s suggestion that a five (5) year time frame was more feasible.
On June 5, 2014, the Commission held a public hearing and heard testimony from representatives of OP, DGS, DHS, and ANC 6B. Gbolahan Williams and Maurice Dunn, on behalf of DGS, and Lisa Franklin-Kelly, on behalf of DHS, responded to the Commission’s questions regarding the status of the renovations of Building 27 and the projected timeline for the location of new emergency shelter facilities. Mr. Williams indicated that DGS had received a building permit from DCRA and that construction to renovate Building 27 would be underway in a week. Speaking to the project’s potential timeframe, Ms. Franklin-Kelly estimated that that operation of the emergency shelter in Building 27 would be necessary for a period of three to five (3-5) years.
ANC 6B Chairman, Brian Flahaven, also provided testimony. Mr. Flahaven was supportive of OP’s proposed time limit on the emergency shelter use, but reiterated ANC 6B’s initial suggestion that the use be allowed only as a special exception. Mr. Flahaven also expressed concerns that the proposed five (5) year time limit is too long and suggested that a two (2) year time period would be appropriate. Mr. Flahaven contended that a shorter time limitation would require the agencies involved to return to the Commission to request additional relief, if necessary, and report to the community on their progress.
At the conclusion of the public hearing, the Commission authorized the publication of a notice of second proposed rulemaking in the D.C. Register to reflect OP’s recommended revisions and a referral of that text to the National Capital Planning Commission (NCPC) for the thirty (30) day period of review required under § 492 of the District Charter. A Notice of Second Proposed Rulemaking was published in the June 27, 2014 edition of the D.C. Register at 61 DCR 6472. No additional comments were received in response to the notice of second proposed rulemaking.
In a letter dated July 17, 2014, the NCPC Executive Director informed the Zoning Commission that, through a delegated action dated July 3, 2014, he found that the proposed text amendments were not inconsistent with the Federal Elements of the Comprehensive Plan for the National Capital.
The Commission is required under § 13(d) of the Advisory Neighborhood Commissions Act of 1975, effective March 26, 1976 (D.C. Law 1-21; D.C. Official Code § 1-309.10(d)) to give great weight to issues and concerns raised in the affected ANC's written recommendation. Great weight requires the acknowledgement of the ANC as the source of the recommendations and explicit reference to each of the ANC’s concerns. The written rationale for the decision must articulate with precision why the ANC does or does not offer persuasive evidence under the circumstances. In doing so, the Commission must articulate specific findings and conclusions with respect to each issue and concern raised by the ANC. See D.C. Official Code § 1-309.10(d)(3)(A) and (B).
The Commission finds that the ANC did not provide persuasive evidence that allowing this temporary, location-specific use would negatively affect the Hill East neighborhood. The Commission undertook the same analysis as it would have undertaken had a special exception been filed and afforded the public the same opportunity for comment. Moreover, the Commission finds that the text amendment is so limited in scope and the circumstances in which it was requested so unique that it will not set a precedent for the introduction of similar uses. For this same reason the Commission agrees with OP that the limited amendment will not hinder the development of the Hill East District.
In response to ANC 6B’s desire for a two (2) year time limit on the use, the Commission does not find the argument persuasive and, instead, adopts a five (5) year time limit. Crediting the testimony of DHS and DGS representatives, the Commission concludes that a two (2) year time frame would be impractical. The Commission considers the project an urgent matter, but does not anticipate that the length of the time period imposed by the text amendment will, on its own, ensure that the project is diligently implemented.
Title 11 of the District of Columbia Municipal Regulations, ZONING, is amended as follows:
Title 11 DCMR, Chapter 28, HILL EAST (HE) DISTRICT, § 2802, USES AS A MATTER OF RIGHT (HE), § 2802.1(f) is amended by striking the reference to “subparagraph (o)” and inserting a reference to “paragraph (g)” in its place; and
By amending § 2802.1(f)(3) by adding the phrase “, except that an emergency shelter for not more than one hundred (100) persons, not including supervisors or staff and their families shall be permitted in Building 27 for a period of five (5) years beginning on August 15, 2014;”, so that the entire subsection reads as follows:
2802.1 The following uses shall be permitted as a matter of right in the HE District, provided that no use may be located on a site that has not been designated for that use by the Master Plan:
(a) Adult day treatment facility;
(b) Antenna, subject to the standards and procedures that apply to the particular class of antenna pursuant to Chapter 27 of this title;
(c) Child/Elderly development center;
(d) Church or other place of worship;
(e) Clinic;
(f) Community-based residential facility not described in paragraph (g), subject to the following limitations:
(1) Youth residential care home, community residence facility, or health care facility for not more than six (6) persons, not including resident supervisors or staff and their families;
(2) Youth residential care home or community residence facility for seven (7) to fifteen (15) persons, not including resident supervisors or staff and their families; provided that there shall be no property containing an existing community-based residential facility for seven (7) or more persons either in the same Square or within a radius of five hundred (500) feet from any portion of the subject property; and
(3) Emergency shelter for not more than four (4) persons, not including resident supervisors or staff and their families, except that an emergency shelter for not more than one hundred (100) persons, not including supervisors or staff and their families shall be permitted in Building 27 for a period of five (5) years beginning on August 15, 2014;
(g) Community-based residential facility to be occupied by persons with a handicap plus resident supervisors, as permitted by right in residence and commercial districts pursuant to 11 DCMR §§ 201.1 (f) and 330.5 (d);
(h) Fire Station;
(i) Government offices and facilities;
(j) Hotel or inn;
(k) Library, public or private;
(l) Museum;
(m) Office;
(n) Park or open space;
(o) Police Department Local Facility;
(p) Private club, restaurant, fast food restaurant, or food delivery service; provided, a fast food restaurant or food delivery service shall not include a drive-through;
(q) Public recreation and community center;
(r) Public school;
(s) Residential dwellings, including row dwellings, flats, and multiple dwellings; and
(t) Retail sales and services involving the sale, lease, or servicing of new or used products to the general public, or which provide personal services or entertainment, or provide product repair or services for consumer and business goods.
On June 5, 2014, upon the motion of Chairman Hood, as seconded by Commissioner Miller, the Zoning Commission APPROVED the petition at the conclusion of its public hearing by a vote of 5-0-0 (Anthony J. Hood, Marcie I. Cohen, Robert E. Miller, Peter G. May, and Michael G. Turnbull to approve).
On July 28, 2014, upon the motion of Commissioner Turnbull, as seconded by Commissioner Miller, the Zoning Commission ADOPTED this Order at its public meeting by a vote of 5-0-0 (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 § 3028.8, this Order shall become final and effective upon publication in the D.C. Register; that is, on August 15, 2014.
