Monday, April 19, 2010

The "25% Rule": Clearing Up Some Misconceptions

Ever since the announcement from DCRA's zoning administrator a couple of weeks ago that no more certificate of occupancy permits would be issued for bars or restaurants along 14th and U Streets, there has been a lot of uproar--and confusion--about what it means and how it will affect the neighborhood going forward.

That's understandable, as there has been a lot of confusing information (and hyperbole) being tossed around. Yet while individuals are of course going to continue to draw their own conclusions about what motivated the announcement, and what effect it might have, I wanted to at least attempt to clear up some of the misconceptions or confusion that surrounds this issue.

Q. Why did DCRA choose to make the ruling now?
A. Simple answer: because the so-called "25% cap" on bars and restaurants was about to be hit, and DCRA would be violating established DC zoning law by continuing to approve CofO permits for bars and restaurants that would cause the cap to be exceeded. Until fairly recently, no definitive study existed as to what percentage of street level retail frontage throughout the Arts Overlay District consisted of bar or restaurant operations. DCRA recently completed such a study, and found that the percentage was just a shade under 25%--meaning that any more bars or restaurants would exceed the cap. Thus, the recent ruling from the Zoning Administrator.

Q. Did DCRA thwart the recommendations of the Arts Overlay Review Committee in its recent declaration?
A. Absolutely not. In fact, DCRA was merely doing what the Arts Overlay Committee had requested it do: namely, conduct an assessment of the makeup of the retail market throughout the Arts Overlay District, and enforce the law accordingly. No one advocated that DCRA ignore the law and continue approving CofO permits in violation of the zoning code. It's important to understand that DCRA does not have the power to alter the zoning code; they can merely enforce it.

At worst, DCRA could be accused of being negligent on the PR front, via the issuance of a letter that seemed to ring the death knell for restaurants and bars along 14th and U streets. But nothing in DCRA's actions precludes the adoption of the Arts Overlay Committee's recommendations; in fact, one might argue that the statement hastened their consideration.

Q. Does DCRA's ruling mean the end of bars and restaurants along 14th Street and U Street?
A. Hardly. To begin, DCRA's statement has no affect on any bars or restaurants currently in operation, or those that are planned and have already received their CofO permit. Those that have NOT yet received their CofO may apply for an exemption through the Board of Zoning Appeals (BZA), who have traditionally been lenient with approving zoning exemptions for businesses along the 14th and U Street corridors.

Secondly, this past Thursday, the Office of Planning submitted a letter to the Zoning Commission formally requesting adoption of certain recommendations put forth by the Arts overlay Committee; specifically, those recommendations that dealt specifically with raising the cap on bars and restaurants to 50% of street level retail frontage. The letter requested that the Zoning Commission consider the issue under an emergency basis at their April 26 meeting (since certain proposed establishments stand to be affected by the ruling). Failure to do so would mean that the measure would move forward as a regular amendment and would become effective by the end of July.

Q. I've heard quotes from community leaders that the popular sentiment is that most in the neighborhood do not want additional bars and restaurants. Is this true?
A. While no one has gone door-to-door polling this question, it is safe to say that quite the opposite is true. When the Arts Overlay Committee presented their recommendations for changes to the Arts Overlay restrictions--including raising the allowable cap on bars and restaurants to up to 50%--they were supported nearly unanimously by all three area ANCs (1B, 2B and 2F) as well as by several area neighborhood associations. During the course of the Committee's public meetings throughout the summer of 2009, comments and testimony were virtually unanimous in support of allowing more restaurants and bars into the neighborhood. There is a recognition amongst most members of the community--leaders, business owners and residents--that such establishments have been, and will continue to be, key to the ongoing renaissance of the 14th and U street corridors.

It's true that certain community leaders, such as ANC1B commissioner Peter Raia, have spoken out on the issue, claiming that a majority of neighborhood residents and business owners support maintaining the 25% cap. I do not feel this is accurate, and do not believe that such a view is supported by anything other than anecdotal evidence.

Q. So, what's next?
A. As noted above, the Zoning Commission will take up the issue at its April 26 meeting. It could consider the issue under an emergency situation, in which case the recommendations--namely, the raising of the allowable cap on bars and restaurants-- included in the letter submitted by the Office of Planning would go into effect soon after. If the matter is not considered under an emergency situation, it will proceed through the normal channels, and would likely go into effect by late July.

In addition to raising the cap, the Office of Planning also requested that the Zoning Commission adopt another recommendation put forth by the Arts Overlay Committee: moving from measuring the percentage of bars and restaurants throughout the whole of the Arts Overlay District, to measuring it on a block-by-clock basis. In other words, no one block will be permitted to have more than 50% of street level retail comprised of bars and restaurants. (Blocks that already exceed that amount will be grandfathered in.) The practical effect will be that, for instance, the number of restaurants or bars along the 1400 block of U Street will no longer have an effect on the number of restaurants or bars along the 1300 block of 14th Street. In addition to making much more sense, the policy will also serve to foster retail diversity throughout the entire District.

In the meantime, businesses who stand to be impacted--and there are a few--are likely in the process of preparing applications for exemptions before BZA in order to move their permitting process forward, should the Zoning Commission not act in a timely manner or adopt all of the recommendations as proposed by the Office of Planning.

Certainly, it can be viewed as an unneeded hardship on businesses that many feel are already too bogged down in bureaucracy and red tape; it's difficult to disagree. But keep in mind that what DCRA is doing is enforcing the law, regardless of the motivations of those advocating for strict adherence to the 25% cap. The legal channels currently being worked--namely, the swift movement undertaken to change the zoning code to allow bars and restaurants to continue to flourish in the neighborhood--are the right ones. In addition to being the proper application of the process, it also helps ensure that future challenges to the law can be more easily dismissed.


Brian said...

Excellent summary. Nice job!

Anonymous said...

You can't argue that from when this was announced (well, really, when word leaked out) on April 5th, until this is resolved by the Zoning Commission in "late July," no "new" restaurants will move forward with their plans in this neighborhood.

This is a major government failure, it is an impediment to economic development in the city, and it will have a negative impact on the neighborhood. Simply put, this is red tape at it's worst.

What a shame.

Mr. Other Upper NW said...

Anon, in my opinion the failure here was DCRA not conducting a study on the state of retail within the Arts Overlay sooner; as it was, until the letter arrived, there had been no official declaration as to how close the cap was to being hit. This study should have been conducted a year ago, at least.

And if the Zoning Commission takes up this issue as an emergency, the process will be resolved much sooner than late July. Late July is basically a worst-case scenario at this point (other than the ZC rejecting the recommendations outright, which I seriously doubt is a potential outcome).

KStreetQB said...

I'm worried that 9th street is included in the overlay and it will dissuade restaurants/bars from filling in all of those vacant store fronts.

Mr. Other Upper NW said...

Only 14th Street and U Street are subject to the 25% restrictions. 9th Street is in the clear on this.

Anonymous said...

Mr. 14th & U:

I agree that this was mismanaged by DCRA.

I would also point out that it is very unlikely that the Zoning Commission will take the issue up as an emergency, and that the late July date is likely a best-case situation. If the text amendment is held up even in the slightest then we won't have a Zoning Commission decision until after their August recess.

The DC Municipal Regulations that govern the Zoning Commission leave the Commissioners with little leeway to declare emergencies, and typically restricts their ability to do so unless the issue has city-wide implications. In this case, that argument likely will not hold.

In addition, the BZA process is also likely to result in a lengthy delay, and has a hefty $1200 price tag.

As I said above, this is a real shame and will likely halt all development for 3 to 6 months until it is resolved.

mattyillini said...

Great job. I love Q&A format for this type of thing. Thanks.

Sherri said...

You did a great job summarizing the issue! The Office of Planning is considering the changes recommended by the Arts Overlay Committee, which were supported as you pointed out by all of the ANC’s and many community groups. Our office is working with the Office of Planning to ensure that the community’s concerns and wishes are considered, we've asked that the changes be implemented as soon as possible.
Sherri Kimbel
Director of Constituent Services
Office of Councilmember Jack Evans

Anonymous said...

Why do rules like this always (or almost always) lump together restaurants and bars? They attract different groups of people, and have very different effects on the neighborhood. I'd love to have more restaurants in my neighborhood, but I'd also love to have fewer bars.