It is a New Year for D.C. zoning and we are all wondering what 2023 will bring given the recent changes at the Department of Buildings. As of October 2022, the D.C. Department of Consumer and Regulatory Affairs (DCRA) was officially dissolved and split into two new agencies – the Department of Buildings and the Department of Licensing and Consumer Protection. The move comes two years after a D.C. Council vote to dissolve the DCRA. Under the new structure, the updated Department of Buildings is charged with issuing building permits, conducting inspections, and enforcing the building code and Zoning Regulations while the Department of Licensing and Consumer Protection oversees licensing and regulating businesses. 

If the COVID-19 pandemic was not already difficult enough on the D.C. real estate development community, recent proposed legislation by the D.C. Council might make developing condominiums in the city more challenging.

On September 17, 2020, the D.C. Council’s Committee on Housing and Neighborhood Revitalization held a public hearing on two bills that will impact the processing and adjudication of structural warranty claims for the District’s condominium buildings: The Condominium Warranty Claims Clarification Amendment Act of 2020 (Bill 23-0623) (Claims Clarification Act) and the Condominium Warranty Amendment Act of 2020 (Bill 23-0601) (Warranty Amendment Act).

The Claims Clarification Act, which was generally supported by members of the development community, proposes a formal process to resolve condominium warranty claims. Specifically, when a homeowner and declarant are unable to negotiate a resolution to a structural warranty claim, such claim may be submitted to and adjudicated by the D.C. Department of Housing and Community Development (DHCD). Once DHCD issues an order on the merits of the claim, the homeowner or the declarant may appeal DHCD’s decision to the Office of Administrative Hearings within 30 days. While most public testimony was in support of the proposed legislation, some individuals noted it may inadvertently encourage premature submission of warranty claims to DHCD that could be resolved by the parties. Additionally, the legislation does not establish a timeframe by which DHCD must make a decision on the claim, which allows the process to drag on and places a cloud over the declarant’s project. 

Dr. Robert Redfield, the Director of the Centers for Disease Control and Prevention, said during his testimony before a Senate subcommittee on September 16 that wearing face masks may be more effective than a vaccine at protecting against COVID-19. What is surprising is the authority tasked with enforcing public health requirements for face masks in the District–the Alcoholic Beverage Regulation Administration.

As part of the initial flurry of administrative and regulatory changes in response to the ongoing pandemic, the Zoning Commission (Commission) took emergency action to approve a text amendment to the Zoning Regulations extending the validity of approval orders that otherwise would expire between April 27, 2020, and December 31, 2020. The amendment applies to orders from the Board of Zoning Adjustment approving a special exception or variance as well as orders from the Commission approving a first-stage planned unit development or any contested case such as a consolidated planned unit development. 

As COVID-19-related closures are likely to continue into 2021, the Zoning Commission (Commission) recently took emergency proposed action to further clarify the rules and procedures for virtual meetings and hearings. The text amendment applies to Commission and Board of Zoning Adjustment (BZA) proceedings, which have been held virtually since May 2020.

The amendment would allow for evidentiary offerings during hearings, whereas the existing regulations require submission of evidence no later than 9:00 am on the day of a hearing. However, in order to offer evidence during a hearing, the party or individual must explain how the exhibit is relevant, demonstrate good cause to allow the exhibit into the record, and show that the evidence will not unreasonably prejudice another party. The amendment also permits a party to request additional time following a hearing to respond to an exhibit entered into the record during the hearing. For evidence or comments submitted prior to a hearing, the text amendment would also restrict such submissions to no later than 24 hours in advance.

On July 1, 2020, the Board of Zoning Adjustment (Board) reversed a decision by the Zoning Administrator (ZA) allowing the by-right conversion of an existing dwelling unit into an eight-unit apartment house in the RA-1 zone.  

The crux of the appeal in BZA Case 20226 concerns the ZA’s interpretation of Subtitle U §§ 401.1 and 421.1 in the Zoning Regulations, which govern multiple dwelling uses in the RA zones. Under Subtitle U § 401.1, multiple dwelling uses are permitted as a matter-of-right in all RA zones except for the RA-1 and RA-6 zones. Whereas, in the RA-1 and RA-6 zones, Subtitle U § 421.1 dictates that special exception relief is required for “all new residential developments, except those comprising all one-family detached and semi-detached dwellings.”