Should DC councilmembers be more intimately involved with zoning and development?

DC has few neighborhood plans, and most developments are decided case by case. The DC Office of Planning proposed new rules to rekindle neighborhood planning, but the council instead might take a different approach which would mean it’s far more involved than it has been.

If a proposal by council chairman Phil Mendelson goes through, neighborhood plans created by the city would be subject to tweaking and amending by the council more than they ever have before. For better or worse, this would make planning much more political and potentially open to deeper corruption.

How development review works now

Today, the DC Council does not review private development proposals. The council doesn’t review or vote on the specific zoning adjustments a developer is asking for, or get into the minutiae of making neighborhood plans.

Instead, the DC Office of Planning (OP) handles neighborhood planning while individual zoning decisions are up to the appointed Zoning Commission or Board of Zoning Adjustment, which holds public hearings on proposed developments that require zoning changes.

Elected officials can certainly speak up in this process by submitting letters and/or testifying at hearings—just like residents can. The bodies making the decisions listen more closely to elected leaders if they speak up. But except for building on public land, which the council affirmatively authorizes, private development is not voted on by the council.

Is this good or bad? On the one hand, there have been many who disagree with and criticize specific decisions of OP or the zoning boards. On the other hand, compared to most other large cities, development is less politicized, individual ward councilmembers have less power, and there are fewer opportunities for corruption in this process.

This unexpectedly became a live debate last week, when council chairman Phil Mendelson released his changes to OP’s proposed Comprehensive Plan amendments, which have been on hold for over a year. He’d create a system that would give the council, and him personally, much more power and discretion over development.

How OP wants to invigorate neighborhood planning

DC’s Comprehensive Plan lays out general principles for development in DC, which the Zoning Commission (ZC) and Board of Zoning Adjustment (BZA) have to follow. It’s typically updated every five to 10 years, so it’s often out of date.

Due to the political process that generates it, it’s also largely internally self-contradictory, saying in one place that something should happen and elsewhere that it should not.

There are basically three ways to deal with these problems. One is to roll with the contradiction and have the ZC and BZA make a lot of tradeoffs between contradictory issues in line with the current needs more than clear language in the Comp Plan. That’s what DC does, but it’s fairly unsatisfying because sometimes it seems like DC is ignoring the plan (or, at least, some pieces of the plan in favor of others).

A second would be to do more plans in between Comp Plan cycles. Montgomery County, for example, does this. There is a continuous cycle of Sector Plans, each for a different area, which the planning department amends through a public process.

DC has a system like this, called a Small Area Plan. Small Area Plans get written by OP, reviewed in public hearings, and then go to the council for an up or down vote. But—and this is very important—the council doesn’t get to tinker with and amend the plan as it sees fit, other than turning it down entirely if doesn’t like it.

This is different from the Comp Plan, which the council can amend as it sees fit. In the Framework chapter currently before the council, Chairman Phil Mendelson, who has shown an interest in local land-use decisions since his time as an ANC commissioner in Ward 3 in the 1980s, rewrote almost every sentence, many for no particular reason other than grammatical preference, along with making many substantive changes.

Small Area Plans don’t really work (today)

The problem with Small Area Plans is they can’t override the Comp Plan. So if the Comp Plan says one thing for a whole area and a Small Area Plan wants to change the rules for a small piece of that area, sorry: The Comp Plan’s broader, if older, rule supersedes.

That makes them very limited for actual policy-making. That’s part of why around 2009 OP mostly stopped doing Small Area Plans. OP completed 27 plans from 2002 to 2009 (almost half in 2008), but only 15 from 2010 to 2017. Of those, 24 of the 27 plans done in the 2000s were official Small Area Plans or other plans which went to the council, while only six of 15 in the 2010s were.

Most of the 2010s-era plans are smaller in scope as well, like more advisory, place-making, descriptive neighborhood plans. That’s nice for talking about how to activate a public space, but doesn’t actually let planners shape development policy.

In its draft of the Framework, OP proposed fixing this. It would modify the Comp Plan to essentially say that the ZC and BZA would make decisions based on the Comp Plan “and approved Small Area Plans.”

It’s a little like a regulatory process. In law, the legislature might pass a statute about, say, health care licensing standards, but could allow the Department of Health to modify some of them by publishing regulations in the DC Register and having a formal comment period followed by a report responding to comments. Legislators decide how much leeway the executive agencies get based on how they write the law.

OP’s proposal would set up the Comp Plan so new plans, which are approved by the council but not amended, could “plug in” and add new rules. Of course, the council could change those rules next time it revised the Comp Plan.

What Mendelson wants

Phil Mendelson, the chairman of the council, has proposed to eliminate OP’s suggestion. Instead, he’d take a third option beyond “roll with the contradictions” and “more small area plans.” He is suggesting amending the Comp Plan itself a lot more frequently, potentially multiple times a year.

At the briefing he gave his colleagues on July 2, Mendelson said that OP could design neighborhood plans, but should submit them as full amendments to the Comp Plan—which the council can amend itself anyway. After all, perhaps councilmembers like 90% of a plan but not 10%, and don’t want to have the binary choice of 100% approval or 100% disapproval.

Good idea or bad?

An argument for this is that it would bring development much closer to the democratic process. People who feel OP and the ZC don’t listen to them could lobby their councilmembers, who have to face the people who voted for them, perhaps based on their stances on development.

An argument against this, from a councilmember’s perspective, is that it would force them to put a lot more time into development proposals and cast many more controversial votes. Councilmembers have a lot of work related to the other topics on which they must craft legislation, and there are only 13 of them. This could mean a massive increase in workload on a subject where almost every decision is highly controversial.

For the public, there are a few potential downsides. One is the current chairman, who is a proud nitpicker; his campaign literature touts this fact. Mendelson, personally, took over a year to modify the proposed Framework chapter of the Comp Plan and edited the majority of its verbiage. Some of the grammar is much tighter, which we appreciate, but the heavy-handed revisions obscure what changed in his proposed amendments and what didn’t, which is not very transparent or easy to parse.

Though Mendelson’s proposal will necessitate roping the relevant ward councilmember into the small area plan political process, he, as chairman, will have ultimate oversight of these potentially more frequent Comp Plan changes. Based on how he’s handled major pieces of legislation, like the short-term rental bill, the budget, and the Comp Plan amendments so far, it’s likely that he will, more often than not, rewrite amendments to his liking at his own pace.

Would this invite corruption?

The other is the danger of undermining good government. In other cities, ward councilmembers use their development oversight to extract concessions from each developer. Sometimes that’s something good for the ward, but sometimes it enriches particular constituencies who have sway with the councilmember, or big campaign donors.

Prince George’s County tangled with this problem, where former county councilmember Tom Dernoga allegedly pushed developers to make cash contributions to neighborhood-serving organizations as a condition of getting council support for their projects. The Maryland legislature passed a law to ban this practice. Would something like that start happening in DC?

The level of campaign donations by developers would probably increase substantially, especially to less scrupulous members who might suggest that without bigger campaign gifts they won’t vote for a plan. While developers do give campaign cash now, councilmembers have fairly little influence directly on their bottom line compared to other cities.

One counter-argument is that many other legislatures do review these kinds of plans, and not always with corruption. The Montgomery County Council reviews, and amends, the Sector Plans. It doesn’t weigh in on specific developments, but similar to Mendelson’s concept it does define Sector Plans. Then, most if not all, development is simply reviewed for conformity to the rules in the Sector Plan.

Arlington’s board actually reviews individual “site plan” proposals, as does Fairfax’s and many other Virginia counties. Similar patterns play out in other metro areas.

What will happen now?

The council will debate, possibly amend, and vote on Mendelson’s version of the Framework on Tuesday, July 9. Then it will take a second vote in September. Issues that come up during the first discussion could lead to Mendelson making changes during the summer.

Andrew Trueblood, the OP director, said he wants to strengthen neighborhood planning. If the council goes back to OP’s proposals, it’s likely we will see more Small Area Plans in the future. If the council goes with Mendelson’s option, OP could try submitting full Comp Plan amendments as Mendelson proposes, or it might stick with the status quo with development decisions happening on a more reactive, ad hoc basis in response to individual projects.