Navigating D.C. Zoning Regulations

Washington D.C.’s complex zoning regulations for single-family, residential, and commercial projects can be hard to navigate and understand. If you’re planning your next property in the district, let professionals guide you through the process. We caught up with Alex Wilson with Sullivan and Barros to talk about all things D.C. zoning regulations. 

What are some of the common challenges you’re seeing with Inclusionary Zoning?

One of the most common issues is not addressing IZ early enough in the design process. I’ve seen many owners forced to set-aside a project’s largest 2-BR unit as an IZ unit because it was the only unit that met the IZ requirements and it was too far into permitting to make changes to the building design. This happens because owners and agents are focused on the set-aside requirement and simply filling out the form. But there are other rules that are not obvious from filling out the CIZC form. For example, in addition to a minimum square footage requirement there is also a minimum size requirement for individual IZ units based on the lesser of a prescribed amount (e.g. 800 square feet for a 2BR unit) or based on the average of the market rate units of the same type. I would say this is the regulation most often missed because it is located in the housing title and is not a requirement on the actual CIZC form. To avoid these types of issues, we recommend a full IZ analysis be performed once the first set of floor plans is established (GFA, net square footage etc.). We’ve even had clients send us potential pricing for individual units so we can run an analysis on how to make a project more profitable and still provide IZ. 

The other challenge is the frequency with which the regulations change. Just this last week, AG Carl Rancine proposed new regulations lowering the standard 80% MFI to 70%. I’ve never seen the AG’s office propose a text amendment. Normally the Office of Planning proposed the amendments. The issue with the text amendments is that they do not have any vesting provisions typically, but can impact the analysis of a potential purchase. For example, the D zones are currently not subject to IZ, but the Office of Planning has mentioned during hearings for other text amendments that they plan to propose new regulations expanding IZ to D Zones. The IZ text amendments typically take 9 months-1 year to become effective from the date they are filed. It sounds like a long time, but in order to get grandfathered into the previous regulations you have to have a building permit in hand. So if someone is contemplating purchasing a property in a D zone right now, they would naturally compile a pro forma without considering IZ. However, that project could very likely be subject to IZ in the next year and a half and unless the owner has a building permit in hand before the regulations become effective, they will be subject to IZ. 

What are some of the challenges you see with the BZA process? How long does the process typically take?

Overall, the BZA process is a great way to add value to a project. Additional units gained through a BZA case can more than make up for the cost of the BZA process and we have a number of clients who pursue special exceptions for RF-1 conversions or RA-1 conversions as a large part of their business. Of course there are challenges. One challenge right now is the inconsistency of variance approval. We’ve observed that variances have become increasingly difficult to obtain. For example, we are currently working on a lot occupancy variance. There are a number of BZA cases with similar fact patterns as the subject case, and those cases were approved as little as 2 or 3 years ago. However, the Office of Planning has already told the owner they are leaning towards a recommendation of denial. There is little to no explanation as to why they have increased the threshold for recommending approval, except they note that an area variance is a very high bar. When in fact, the case law says the opposite, that an area variance has a lower threshold for approval per the Court of Appeals. The Board tends to follow the recommendation of the Office of Planning.  

Another challenge is the impact that ANC and neighbor opposition can have on the timeline of a case. At the end of a BZA case, after they vote to approve, the Applicant receives an Order and that Order is then given to DCRA-Zoning for approval of previously noncompliant aspects of a project. If there is no party opposition, an Applicant receives a summary order within 1-2 weeks. If there is party opposition, a full order is required. There is currently a significant backlog at DCOZ’s legal department (previously OAG). The department was recently restructured and that should help, but we do have applicants waiting 9 months-1 year to receive an order. And for reference, party opposition is not just a neighbor testifying in opposition, it is a neighbor requesting party status to oppose, or the ANC not supporting the application, or the Office of Planning recommending denial. Those are the three circumstances where a full order would be required.

Can you choose an example of a creative zoning solution that allowed your client to have better success with their project?

Yes, recently we had a case to subdivide a property into three new lots. The property has the requisite land area and lot width to subdivide into three lots, but due to an existing house and heritage trees, the lot could not be subdivided evenly into three new lots and area variance relief from the BZA was required to reconfigure the proposed lot lines. The office of planning made a recommendation to deny the case to the board. While the option to go to the board still remains, we decided to postpone the case and pursue a minor deviation from the zoning administrator and find a creative way to reconfigure the lot lines so that the project can be approved without BZA relief. While the BZA relief would make the project easier from a building code perspective, it made more sense in this case to not spend the time (and client’s money) moving forward with a BZA case likely to get denied. These decisions are left up to the client, of course, but we like to give our client’s options and do what makes sense for each project. 

With ever changing regulations, what happens if policies change mid-project? How do you keep your clients up to speed?

The goal is to keep our clients aware of the changes as soon as they are proposed to avoid issues mid project. We keep track of all pending text amendments and update our clients periodically of those text amendments via email (e.g. when a new text amendment is filed, hearing date, potential effective date.). If we can let everyone know of the text amendment, they’ll be able to make decisions for the project so that there are no mid-project issues. And if there are mid-project issues, we work with clients and communicate with the DCRA zoning reviewers to address those issues.

Have more questions? Reach out to Lee Design Studio or Alex Wilson with Sullivan and Barros today!