The custom zone for this shopping center has become a citywide discussion. Image by Google Maps used with permission.

Recently neighbors and developers reached a compromise over a mixed-use project east of the Anacostia River by creating a brand new zone for the site. The DC Zoning Commission has a hearing on this proposal on Monday, July 23, and multiple groups from the opposite corner of the city — west of Rock Creek Park — have already signed up to testify in favor.

Why? The proposed new zone is 20% less dense than the original, and though it is being proposed for this particular circumstance, it would be available citywide. What is more, these groups are pushing to immediately implement the less-dense zone in many locations. That would lead to significant downzonings across the city which already has a shortage of homes and rising housing prices.

Where it all started: a compromise

The Penn Branch Shopping Center redevelopment has been an ongoing development battle in DC’s Ward 7 for years. The parcel is composed of multiple zoning categories, including some residential ones. It seems clear that many in the surrounding community want to see this project proceed and are excited about the investment in the neighborhood. But there is also a group of immediately adjacent residents who don’t want additional density close to their homes.

Current zoning at the Penn Branch Shopping Center.

With the mix of zones present at the site, Jair Lynch Real Estate Partners, the developer at Penn Branch, applied for a zoning map amendment to upzone the entire area to MU-4, a mixed-use zone with a maximum height of 50 feet. The Office of Planning (OP) supported the change, but in October of last year the Zoning Commission pushed back, citing the effect on adjacent neighbors.

Looking to compromise, the Zoning Commission and OP suggested a path forward. They asked the developer and neighbors to get together and develop a “custom zone” for the project that would address the issues raised by opponents.

The parties met and came up with just that. They created an MU-4A zone is 20% less dense overall and requires transition setbacks (designing the building so that the most dense parts of the development don’t run up against the border of the property).

Beyond that, the new zone requires a few other negotiated items. Some are very specific, such as evergreen trees at least eight feet high maintained to certain standards, and a prohibition on outdoor communal recreation space within 50 feet of abutting residential zones.

The upcoming hearing on establishing this brand new zone and its use at the Penn Branch Shopping Center is Monday, July 23 in front of the Zoning Commission. The new zone would be called MU-4A, and the existing MU-4 would be become MU-4B.

Rendering of redeveloped Penn Branch Shopping Center. Image by Jair Lynch Real Estate Partners used with permission.

Compromising with residents is good. “Infinity zoning” is not.

It’s great that residents and developer were able to meet, negotiate, and come up with a compromise solution that works. That sounds like responsive and good development!

But it’s weird that that solution means creating a brand new zone. Should every parcel have a specially-designed zone that reflects the compromise of the developer and neighbors? That would be a lot of zones. Beyond that, by going this route each new custom zone automatically becomes available citywide.

In fact, DC has a process to manage this kind of community negotiation without creating a brand new zone every time: the Planned Unit Development (PUD) process. PUDs allow for greater zoning flexibility for developers, but they also involve negotiation with neighbors around explicit benefits. The community benefits agreements can include many things: additional affordable housing, road or bike improvements, new parks or open space. They can also include design requirements on the building.

For example, in this case a PUD could have included those transition setbacks to decrease the density of a building at the edges of the property. Zoning Commission Vice-Chair Rob Miller even went so far as to say that this project should have just been a PUD in last fall’s hearing.

However, as we’ve written about many times before, the PUD process is seen as pretty toxic in today’s climate due to a number of lawsuits against PUDs across the city. Rather than face such a risk, the developer at Penn Branch decided to apply to simply change the underlying zoning, meaning that the community benefits negotiation process was left out.

…but then when the Zoning Commission balked at the map amendment, their answer was for the developer to go negotiate with the community anyway. That is how we got to MU-4A, a brand new zone for this particular site. So functionally what happened at Penn Branch looks a lot like a PUD, but results in a customized solution that would be available citywide as opposed to only applying at the site of the compromise.

Opponents of this site in Ward 3 are very interested in this new custom zone. Image by Susan Balding.

Neighbors in the opposite corner of the city get involved, and push for more

OP proposed a text amendment to create the new MU-4A zone, which is what officially opens the new zone up to the whole city. If passed, current zoning would not change (and MU-4s would become MU-4B), but any current MU-4 zones that are near low-density residential zones could be changed to the new MU-4A.

Already three groups have sent in testimony in favor of the new zone, but none of them are from the neighborhood near the site in Ward 7. All have their bases in Ward 3 west of Rock Creek Park, in particular the Spring Valley neighborhood. Notably, this proposed MU-4A zone could apply to many sites in and around that area, including a few areas along Wisconsin Ave near the Metro stations, the long-embattled Super Fresh site, and the Palisades Safeway.

Alma Gates, an Advisory Neighborhood Commissioner in the area (ANC 3D) and member of the Committee of 100, testifies in support of the new MU-4A zone, but with two important changes. First, instead of a 20% density reduction, she is asking for a 40% reduction. Such a reduction would essentially force any buildings in the new zone to be no taller than two stories.

Second, and more dramatically, Gates’ testimony asks that the new MU-4A not be available, but instead immediately implemented. In other words, this testimony asks that all of the current MU-4 areas that are close to low-density residential sites become MU-4A instead of MU-4B. That is a dramatic change from what OP and the Zoning Commission have put on the table.

The two other groups on record are the Spring Valley-Wesley Heights Citizens Association and the Neighbors for a Livable Community (a group opposed to the Spring Valley Super Fresh development). Both are calling for the reduced density version and the immediate implementation of the zone.

ANC 3D ultimately passed a resolution against against opening up the new zone across the city and will be testifying in opposition to Gates’ and the groups’ proposal.

Rendering of proposed redevelopment for the Super Fresh site. Image by Valor Development used with permission.

We shouldn’t even be having this conversation

This whole situation doesn’t make sense, and could have been avoided if the developer and community went through the PUD process. We shouldn’t create new custom zoning categories for every single possible combination of building shape, size, and use. “Infinite zoning” is most definitely all the way through the looking glass.

The ideas proposed by Gates’ and others are bad ones born of a desire to, in their words, “provide more protection for existing low density residential zones.” However, their ideas are also far from what OP and the Zoning Commission are actually proposing. Their effort is essentially a backdoor downzoning attempt, and let’s hope the Zoning Commission doesn’t bite.

If you want to testify on Monday at 6:30 pm at 441 4th Street, the relevant case file is here and e-mail donna.hanousek@dc.gov or call (202) 727-0789 to sign up. You can write in your comments by Monday through the Interactive Zoning Information System (IZIS) at http://app.dcoz.dc.gov/Login.aspx or e-mail directly to zcsubmissions@dc.gov. Include the case number: 18-06.

However, perhaps most frustrating is the fact that this kind of behavior is not new. Land use activism is a privileged person’s game. Who else has the time and access to expertise that allows you to track minute zoning cases happening across the city, put together your own counter-proposal, and try to slip through a significant downzoning on the back of this very particular case that’s not even in your neighborhood?

Or who has the time and expertise to find out about these proposals and weigh in on whether they’re good or bad every time? During the DC Zoning Rewrite individuals, organizations and ANCs across the city weighed in on changes for years. For this case hardly anyone is weighing in, though it could have citywide effects. While an automatic notice went out to all ANCs about this case, most have no idea this discussion is happening.

I share in this privilege by the very fact that I’m writing this article, and I imagine many of us who follow these issues do as well. But history has shown that the most vocal and active land use activists use their influence and time to “protect” their neighborhoods from adding more neighbors, and prioritizing “neighborhood character” over the responsibility we all have to add enough homes and affordable homes in our neighborhoods.

Some view Rock Creek West as all built out. Is that why so little (0.6%) affordable housing was built since 2015? https://t.co/vufIUVckpY pic.twitter.com/GG9JVuoaqz — Cheryl Cort (@cherylcort) July 17, 2017

The effect of this constant anti-density activism over decades has contributed to the land use patterns we see today, where only a few neighborhoods are accepting the growth and change the city is experiencing, and others keep opting out. At some point this has got to stop if we want to see more homes and affordable homes built in wealthier neighborhoods.