Recently, The Georgetown Current reported that a DC Superior Court judge found a branch of DC government, the Department of Consumer and Regulatory Affairs’ (DCRA) Office of the Zoning Administrator, liable for violating a Georgetown property owner’s rights to substantive due process. As a survivor of the Office of the Zoning Administrator corps of zoning engineers, I am glad to see the top-down political machinations that routinely erode the integrity of DC’s land use laws being brought to light.
The Georgetown home at 3256 N Street NW is just one of many cases of elected and appointed DC government officials brazenly employing DCRA and the zoning code as pawns in their political games.
Today, the Board of Zoning Adjustments will adjudicate an alleged case of an illegally obtained building permit for an addition to the Mount Pleasant Branch of the District of Columbia Public Library (DCPL). The plaintiffs, ANC 1-D, claim that the Zoning Administrator usurped the public process by unilaterally approving the Library’s allegedly non-compliant building plan.
If DCPL’s building plans did not conform to DCMR 11 as the ANC 1-D complains, then DCRA’s Office of the Zoning Administrator would have been required by law to deny zoning approval upon review and counsel DCPL to seek a variance from the Board of Zoning Adjustments.
Having not been versed in the specifics of the case, I cannot proclaim that the Zoning Administrator attempted to “help the owner” as one Board of Zoning Adjustments member suggested. However, I can say with certainty that the alleged offense, if committed, fits neatly into an all-too-troubling pattern of political pandering at DCRA.
During the Adrian Fenty Administration, DCRA implemented a customer service approach to land use regulation with terrifying results. Under this “the customer is always right” regime, permit applicants (“customers” in DCRA-speak) received building permits for non-compliant plans by merely expressing dissatisfaction with the permitting process to the DCRA Director or any of the officials seated in the lofty upper echelons of DC Government.
DCRA employees literally lived in fear of applicant complaints to the Wilson Building or the DCRA Director. That fear propelled certain at-will employees to dismiss the subtleties of DC’s zoning code, ignore DCRA’s own permitting protocols, and to frequently (ab)use “discretion” to expeditiously approve nonconforming, non-compliant building permit applications in the name of customer service. Ultimately, DCRA’s customer service orientation prioritized permit issuance ahead of plan compliance, destroying the integrity of the permitting process and imperiling the quality of DC’s built environment.
DCRA’s enforcement efforts also suffered under the guise of this customer service regime, as administrators precariously flouted due process and equal protection rights to appease certain groups of constituents. DC’s non-compliant structures and uses often see little to no enforcement action unless owners and/or tenants of neighboring properties lodge complaints.
The resulting enforcement action often takes the form of a mild stop work order and/or a small fine followed by DCRA compliance counseling. But DCRA will take a no-holds-barred approach to attacking noncompliance in specific communities at the expense of others, especially when there is political gain to be garnered.
The story of Georgetown’s Philly Pizza is an archetypal example. The now-defunct pizza parlor undoubtedly operated outside the scope of its Certificate of Occupancy. Labeled a sit-down “restaurant,” Philly Pizza, with most of its receipts coming from pickup orders served on disposable dishes, functioned more as a “prepared food shop,” according to the eating establishment definitions included in DC’s Zoning Code. Typically, this type of noncompliance is met with the most subtle type of enforcement. Especially when the non-compliant establishment makes corrective concessions to avoid further prosecution, as Philly Pizza reportedly did.
But this painfully popular pizza parlor saw its doors shuttered when Georgetowners mustered all of their political might and financial resources to brand the student-friendly, late-night eatery a public nuisance. When similarly problematic establishments worry residents of other neighborhoods, DCRA handles the noncompliant establishment with kid gloves.
Yet non-compliant uses in Fenty’s favorite wards saw no such gentility. Moreover, nor did our current Mayor Vincent Gray during last year’s mayoral race; his fence was the only fence in DC subject to a DCRA inquiry in that year. Just as authorities ought not permit noncompliance, they ought to uniformly enforce regulations and abide by the principles of equal protection and due process of law.
As illustrated by DCRA’s actions against Philly Pizza, the owners of 3256 N Street NW, and even DC's current mayor, the strength and tenor of land use regulation enforcement is predicated less on objective application of law and more on subjective appraisals of potential political rewards.
But the time has come to discontinue manipulating DC’s zoning code, the legal DNA for the city of L’Enfant and McMillan, as a political football. Instead we must embrace the letter, if not the spirit, of DC’s existing land use law to make public policy and the process transparent.
DCRA’s focus on appeasement in both permitting and enforcement efforts threatens to destabilize the protection of the District’s property values, public safety, and quality of life. Lawmakers penned DC’s zoning regulations to preserve the District’s inspiring vistas, to ensure the livability of DC’s neighborhoods, and to deliver a cohesive urban fabric, not to facilitate vendettas and political profiteering.
Mayor Gray appears to have made an important first step in eradicating this diseased culture by replacing the last DCRA Director. Let’s keep the momentum going. Let’s honor and serve the customers who may never seek a permit: the residents whose lives and livelihoods unfold amidst the growing forest of illegally permitted construction.