So you want to build a pop-up... (under DC's new zoning regulations)

(updated July 13th with effective dates for the new zoning rules)

The DC Zoning Commission recently voted to change the zoning rules for residential and non-residential structures in the R-4 zone, requiring a special exception to build higher than 35 feet. The focus is on regulating "pop up" development, and previously the R-4 zone allowed builders to go up to 40 feet by right. The update to the zoning regulations also included some other changes related to mezzanines and multi-unit structures. In this post, I'll review the new zoning rules for residential structures and what they mean for Capitol Hill residents.

First, some definitions

Zoning regulations are confusing; let's start with some definitions. Land in DC is divided into zoning districts, such as R-1 (low density residential) and C-M-1 (light industrial). Most Capitol Hill homes sit on R-4 lots (medium density residential), and R-4 is the focus of this zoning update. Zoning districts restrict the height of buildings, among other things, and in the R-4 district building height was previously limited to 40 feet (and three stories). Building up to 40 feet was allowable "by right." By right development describes what a landowner can do more or less automatically (after getting a building permit), without asking for special permission from a zoning board. The new zoning regulations also affect something called a mezzanine, which is essentially a partial floor, one that covers not more than 1/3 the area of the floor immediately below.

The zoning update supports DC's goal of increasing access to affordable housing, under a program called "inclusionary zoning," or IZ. There are different types of IZ requirements, but basically an IZ housing unit is one that is made available only to renters or owners who make less than a certain percentage (of 80%) of area median income (AMI), which is roughly $100,000 per household in DC.

What happened to pop-ups?

The new regulations going into effect reduce the height of by right buildings in the R-4 district to 35 feet. A homeowner can still build up to 40 feet, but to do so they must apply for a "special exception." A special exception is a use allowed under DC zoning rule, but to be approved an applicant needs to meet certain conditions, primarily those regarding the impact on 'air and light' for nearby neighbors. While many homeowners could previous build a pop-up by right, most will now require a more extensive zoning process. This involves applying for a special exception with the Board of Zoning Adjustments (BZA), and that involves coming before the ANC. In ANC 6B, that starts with the Planning and Zoning Committee.

Now the ANC and BZA will review most pop-ups on a case by case basis. According to the new zoning regulations, and applicant seeking a special exception for building higher than 35 feet will have to meet certain conditions:

  • The overall building height or upper addition "will not have a substantially adverse effect on the use or enjoyment of any abutting or adjacent dwelling or property," including...
  • The light and air shall not be unduly affected,
  • Privacy of use and enjoyment shall not be unduly compromised,
  • The addition cannot block or impede a chimney,
  • The addition cannot interfere with a solar energy system,
  • And the building height, when viewed from the street or alley, shall not "substantially visually intrude upon the character, scale, and pattern of houses" along the street frontage.
  • Also, the additional 5 feet (requested through the special exception), should not have a substantially adverse effect on the "defining architectural features of the building." 
  • Applicants seeking a special exception need to graphically present their case, including the relationship between their building and the adjacent buildings, including views from public ways.

Essentially the special exception process will allow for much more substantial review of home additions above 35 feet in the R-4 zone, which is most of Capitol Hill. Applicants need to be prepared to make the case that their proposed pop-up will not have a substantially adverse effect on their neighbors and the "look" of their street.

Changes to mezzanines

Prior to the new regulations, a homeowner could build a partial 4th floor, called a mezzanine, which would not count as a “story” and thus would not be relevant to the three story maximum regulation in the R-4 zone. The revised zoning regulations now explicitly remove his exemption for R-4 buildings. If you have a home on an R-4 lot and want to build a mezzanine, that partial story will count against your three story maximum. This new restriction applies only to principal structures and not accessory structures, such as a carriage house.

Conversion of a row house to a multi-unit (apartment) building

Under the new zoning regulations, an owner can convert a residential structure that existed prior to May 12, 1958, to an apartment house by right, as long as:

  • The building does not exceed 35 feet
  • There is 900sf of land per dwelling unit
  • There can be no more than 4 units per lot

There are a few additional rules and possible exemptions.

  • No more than one (of the maximum 4) dwelling units can be located in an accessory building.
  • If you build 4 units, the 4th is subject to inclusionary zoning at the 80% AMI level.
  • When converting the building to multi-unit, at most 30% of the existing floor area can be demolished.
  • Any rear addition cannot extent further than 10 feet past the furthest rear wall of any principal structure on the adjacent properties.
  • You cannot build a vertical addition that blocks or adversely affects either chimneys or solar panels on adjacent properties.
  • Finally, there are some relatively minor and technical rules that govern roof top architectural elements and that limit further expansion on any added structures without BZA approval.

In short, homeowners or developers can still convert an existing single-family row house into a multi-unit small apartment or condo building by right, but they will need to adhere to a specific set of restrictions.  There are also a new set of provisions that mirror these but apply to converting a non­-residential structure to a multi-unit residential structure.

Additional exemptions related to multi-unit conversions

In addition to the above rules, the new zoning regulations allow owners to request certain exemptions (zoning relief) related to multi-unit buildings. For example, a building owner can request a special exception to build more than 4 units in an existing R-4 structure, but if BZA grants this exception every other (i.e., 6th, 8th, etc.) unit must be IZ.

Summary of new zoning rules

The new zoning regulations, which will go into effect soon, have important implications for homeowners in Capitol Hill. Here’s a summary:

  • Row house additions can only go to 35 feet by right; building to 40 feet requires a special exception.
  • The special exception process for exceeding 35 feet is extensive and requires meeting multiple, specific conditions.
  • Houses can still only be three stories tall.
  • Mezzanines (partial stories) now count as a story.
  • Homeowners can convert a row house to up to a 4 unit building, as long as there is 900sf of land for each unit; the 4th unit must be IZ (80% AMI).
  • Homeowners can get a special exception from the 900sf requirement for residential use.
  • Homeowners can get a special exception to exceed the 4 unit maximum; ever other unit (after 4) must be IZ.  

When are the new rules effective?

The answer is, unfortunately, a bit complicated. When the Zoning Commission posted its order on these rules, it made the new rules essentially retroactive. The table below is from the ZC order. It describes a set of exceptions to the new rules, and you can see that for most additions, the project needed to have a filed and accepted permit before February 1, 2015 to avoid the new regulations. However, if the project completed or filed a BZA or HPRB process before the effective date of the zoning amendments, then that project is exempted. Here's a helpful FAQ from DCRA.