Why was this so hard? Photo by Elvert Barnes on Flickr.
When a theater in Dupont Circle tried to get zoning permission to continue operating, the dialogue at the zoning board was worthy perhaps of being its own theatrical play. Let’s imagine what that play might be like.
DC has a long history of theater groups which perform in people’s garages, churches, and the basements of apartment buildings, as last week’s Washington City Paper cover story described. A few have permits; many don’t. One reason the article didn’t get into: zoning.
You can’t legally just put on a play in your house in most of DC. The Back Alley Theater is in the basement of a building at 14th and Kennedy Streets which is actually in a commercial zone, but a lot use spaces in houses which are in residential zones. Others use buildings that aren’t houses but are in residential areas.
Let’s say you want to have some theater in a building in a residential zone. Let’s also say that all of the neighbors enthusiastically support the idea, as does the local Advisory Neighborhood Commission, so this isn’t an issue of who should get their way and who loses out. It’s all people versus the text of the law. What happens?
You need a zoning variance, which has specific criteria. You have to prove that there is something unique about this particular property, different from others around it. You also have to prove that that uniqueness creates some financial hardship.
If you’re renting space in a church or some similar institutional building, the zoning board could find that it’s unique (since it’s not just another house) and maybe find that the church really needs the money from the rental. That’s what let the Spooky Action Theater keep operating in a church basement at 16th and S in Dupont Circle.
But what if you own the building? You don’t financially have to put on theater shows. After all, that’s not a lucrative activity. You could just have condos, maybe, and get a lot more money. Are you out of luck?
This was the debate at another recent Dupont zoning case, for the Keegan Theatre on Church Street. The Keegan was putting on shows in a building that had been used as a theater for decades, and originally was the gymnasium for the Holton-Arms School (which had long since moved to Bethesda). Keegan bought the building and are planning an addition (which neighbors also support), so they were going through the permit process.
As they did that, it turned out that a previous owner of the building had gotten a zoning variance, but it turned out that was for “theater education.” The permit people were saying that isn’t the right one for a theater even though people have been performing there all along anyway, and the Keegan had to go get a new variance.
If the discussion at the zoning board were a play where we invented dialogue which conveys what people actually said but in a more engaging way to the audience, that play might go something like this:
SCENE 1: THE HEARING ROOM AT 441 4TH STREET, 2ND FLOOR. DAY.
Mark Rhea, Keegan Theatre: Hi, so can we please get our variance? Here is a pile of letters from neighbors saying they like us.
Lloyd Jordan, Chairman, Board of Zoning Adjustment: I sympathize with you, but I don’t see proof in here that you can’t just make more money turning this building into condos. Maybe you should come back in a couple of months during which time you would not be able to move forward on your renovation and would unfortunately have to pay a zoning lawyer a huge pile of money to generate more legal documents.
Zoning Commissioner Rob Miller: This is stupid. Everyone is supportive of this great theater. And it’s a nonprofit theater group. Of course they’re not going to turn it into condos. Can’t we grant their variance?
Jordan: Well, we have laws here and they say you have to prove hardship. I want to give the theater what they want but I have to follow these here laws.
DC Office of Planning’s Steve Cochran: If you squint really hard at the zoning order from 1978, you can interpret to say the board found back then that this building isn’t usable for condos, so maybe we can just point to that as the evidence we need.
Jordan: We don’t normally do that kind of thing, where we go pluck evidence from old cases. But what the hell. Sure, ok. I’m not totally comfortable but I’ll go along with this.
Miller: We are trying to change the zoning anyway so this kind of thing isn’t so hard. Because it is dumb that we have to have this conversation right here.
Rhea: Hooray! Thank you!
SCENE 2: THE SAME HEARING ROOM, A FEW WEEKS LATER. NIGHT.
Narrator: To understand this part, you need to know there are two zoning boards: the Board of Zoning Adjustment, which decides individual variances like this, and the Zoning Commission, which decides the actual zoning rules and some big projects called PUDs. One member of the Zoning Commission sits on each BZA case on a rotating basis. Miller is on the Zoning Commission and was its representative that day. That’s why he’s going to be in the next scene, too. OK, enough exposition for now.
Anthony Hood, Chairman, Zoning Commission: OK, let’s talk about the Office of Planning’s proposal for theaters.
Joel Lawson, DC Office of Planning: Because David Alpert bugged us a lot about this issue and you said you agreed with him, we wrote a new zoning rule saying that it’s okay for buildings like churches to rent out their space to theaters. They would still have to go to the BZA, but just for a “special exception,” which is more about whether it will harm neighbors than about this financial hardship stuff.
Commissioner Marcie Cohen: I think this is good but you might be missing the point a bit. Besides the renting churches situation, sometimes the theater owns the building. Like the Keegan case.
Lawson: Yeah, I didn’t realize you wanted us to write the rule to cover that situation too. Also, for some unexplained reason we excluded denser row house neighborhoods like Dupont in the draft text.
Rob Miller: We meant for you to write it broader to include cases like the Keegan. I was there for that case, and we had to bend over backward to make it come out the right way because a variance is too hard to get, so can you please fix it now?
Lawson: I guess so, sure.
FADE TO BLACK.
Narrator: Will the DC Office of Planning make it easier for theaters to operate in residential neighborhoods or not? Stay tuned for our next episode of the longest-running show on Fourth Street, Tales of the Zoning Update!
If you have any information you want to share about this issue with the Zoning Commission, you can speak up at hearings on September 8-11, submit written testimony using this procedure, or send a signed PDF letter to email@example.com. Or just share them in the comments and I’ll get anything substantive to the commissioners.