Housing Complex

This Is What a Parking Exemption Is Worth

Tonight's a big night for Tenleytown. After a year of neighborhood debate, ANC 3E is set to vote on the Douglas Development proposal for a six-story mixed-use building on the site of the defunct Babe's Billiards at Wisconsin Avenue and Brandywine Street NW. The development, as I laid out in my column last week, is controversial enough in change-averse Tenleytown; the fact that Douglas is seeking a zoning exemption from the off-street parking requirement is all the more so.

According to the soon-to-be-updated zoning code, Douglas is required to provide 87 off-street parking spaces it thinks its residents don't need. And so it's requested a so-called variance—nearly always granted these days if the local ANC approves—to exempt it from constructing any normal off-street spaces. (Douglas does still plan to provide a handicapped space and a space for a car-sharing program like Zipcar.)

In order to secure ANC support for the no-parking proposal, Douglas has to offer the commissioners something in return, namely a generous community amenities package that persuades them that the development won't lead to a surfeit of cars competing for street parking. After sometimes testy negotiations, Douglas and the ANC published a memorandum of understanding last night, outlining Douglas' end of the deal.

"Provided that the ANC supports the proposed redevelopment of the Subject Property and the applications for the PUD and map amendment to effectuate the project (“support” shall be indicated by a majority vote of the ANC on a resolution or motion supporting the proposed redevelopment)," the MOU reads, "Douglas agrees to the following."

The "following" includes (and I should note that the first two are not directly related to the parking situation, while the latter three are):

  • The retail tenant(s) in the building can't include porn stores, check cashers, pawnbrokers, nightclubs, dry cleaners, banks, mattress stores (there are more than enough of those in Tenleytown as it is), convenience stores, chain stores that already have at least five D.C. locations, or stores that sell products weighing over 40 pounds, unless those products are only available by shipping/delivery (presumably to encourage pedestrian consumers rather than drivers who'll clog up the neighborhood's street parking).
  • Douglas will make a number of improvements to the streetscape, including nine trees, a bench, a trash can, a table, and about $500,000 for the undergrounding of utility lines.
  • Douglas will encourage transit use by designating a building employee as the Resident Transportation Coordinator, who will provide information about public transit and "generally encourage non-private auto usage"; and by installing a digital display with real-time bus and train schedules and information about nearby bike- and car-share stations.
  • Douglas will give each tenant a free Capital Bikeshare membership, a free Zipcar membership, and a $100 transit fare card.
  • And, perhaps most importantly on the parking front, Douglas will include a clause in all leases prohibiting residents from obtaining residential parking permits for on-street parking. Douglas will also obtain 20 off-street parking spaces at nearby facilities for patrons of the building's retail, and retailers occupying more than 3,500 square feet will validate patrons' parking.

Free CaBi and Zipcar membership? A $100 transit fare card? Nine trees and a bench? I'm starting to want to move here myself.

You can read the full MOU here. And I'll be attending tonight's meeting and filing an update thereafter. Stay tuned!

Rendering courtesy of The Bond at Tenley.

  • ShawGuy

    From a legal standpoint, the developer / leasing company cannot actually prevent a tenant from seeking a Zone 3 parking permit. Some buildings have had DDOT exempt that address for condo buyers from being eligible (which someone will eventually have enough sense to sue over, and will win when they do), but if it's just a clause in a lease, it's completely unenforcable.

    Your landlord has no legal rights to interfere with your decisions in a publicly available marketplace or your decisions about your private life, as long as they are legal choices. They can't tell you that you may only buy groceries from Whole Foods, only purchase a Nissan to drive, that you may not get a tattoo, that you may only go to a specific bar on weekends, or that you are not eligible to buy a car if you want one and seek a parking permit from the city. There is AMPLE case law supporting this.

    Every time a landlord has tried to restrict personal choice that could not be deemed relevant to the living space itself (i.e., anything that happens outside of that space, such as drinking, smoking, having children, dating someone, etc), they have lost. Even inside the living space, they have to make a solid case that it interferes with the other tenant's ability to reasonably enjoy their own home (no dogs, they bark; or no smoking indoors, the smell gets into other units) or that it makes a permanent modification to the leased premises (pets can damage property, painting can be hard to cover, nail holes damage walls, etc).

    The bigger issue here is that parking on street in your own zone is something that the District provides to citizen taxpayers for a fee. The only requirements that a court will uphold are that you register the car in the city and prove your address and that it passes inspection. Stating that certain taxpayers are entitled to seek this taxpayer-subsidized amenity and others are not creates a separate-and-not-equal subclass of residents in newer buildings. We've ruled before, many, many times, that even separate-but-equal isn't legal. So separate-and-not-equal will not be upheld either.

    I'm eager to see the first lawsuit against the city from a condo owner in one of these buildings who sues for an on-street permit or who sues for damages because they had to sell at a lower price because the new owner was ineligible for on street parking.

    One final note - let's say I already live in Ward 3, and have a two-year registration on my car, with a parking pass, that I renew the day before I sign my lease. What exactly does the developer think they're going to do about it? It's my own car, my own registration and RPP sticker, that I legally obtained and paid for. I'll park wherever I like, thank you.

  • AWD


  • NonShaw Guy

    ShawGuy seems to believe that there is no freedom of contract. Interesting, kind of red, thought. If a tenant wants to live in the new development, they promise to forgo the RPP. Douglas provides substantial consideration for this promise, as detailed in the article. The stuff about separate but not equal is laughable. Are car-free hipsters a suspect class ShawGuy? Do you know the relevance of that question? Do you know what the rational basis test is?

  • ShawGuy

    @NonShawGuy - "car free hipsters"? You completely missed the point. Got it. Thanks for clearing that up.

    No, the separate "classes" would be property owning citizens with RPP rights and property owning citizens without RPP rights.

    And yes, you have freedom to sign a contract saying whatever you might want. But in a courtroom, provisions like this are legally unenforceable. You can put it in a lease that your tenant is not allowed to watch more than two hours or television per week and must dye their hair green. It's legal to write it in there, and it's legal for a tenant to sign it. What's not legal is any attempt by the landlord to actually enforce it. DC Landlord Tenant law makes it pretty much impossible.

    And yes, I know what the Rational Basis Test is, and that in cases with suspect classification or fundamental rights involved, it doesn't apply. There's a pretty solid due process case here that the District is treating one group of people unfairly when compared to others. Any average first year law student could explain it to you.

  • NonShaw Guy

    The rational basis test applies when there is NO suspect classification. There is none here. There would be if there was discrimination based on, say, race or gender. If strict or intermediate scrutiny applied, as would be the case with a suspect classification, you could argue that the provision would not survive review. Given that the rational basis test would apply here, your assertion that there is a "pretty good due process" case is baseless.

    "Property owning citizens without RPP rights" is a result, not a class, for constitutional analysis. To establish a suspect classification here, you would need to show that government was denying RPP rights on the basis of race, religious belief, gender, etc. Really, the best you can come up with for a class being discriminated against here is "hipster." Maybe the Roberts Court will add that classification to the list of suspect qualifications.

    Of course, there are rights that cannot be contracted away. We call these "civil" or "human" rights. Are you saying that free parking is a civil or human right?

  • NonShaw Guy

    Oh, freedom of contract means that courts will generally UPHOLD freely-bargained terms between parties to a contract.

  • tntdc

    They're not eligible for RPP anyway. The address is in a commercial zone.

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  • karl

    @NonShaw Guy

    If I'm understanding your point -- the contract could say I can't run water at certain hours and the court would uphold?

  • anon

    @tntdc got it right. The RPP question is addressed via zoning. DDOT will restrict RPP in similar cases where a zoning variance is sought for the purpose of residential development

  • Kyle

    You all are getting way to technical. If they did get RPP, in violation of their lease:

    A: The Apt complex isn't going to know about it
    B: Will not evict them for it, if they are an otherwise good tenant.
    C: Someone will actually have to take them to court. No one is going to do that. This agreement has no teeth, nor should it. Street parking is a public good... Period.

  • Alf

    This is a good outcome -- unless "car free hipsters" don't really want to be car free. All the renters (or purchasers, if the building goes condo) will be on notice. The building address will be coded into the RPP systerm so that even if residents tried to petition for RPP the eligibility will be denied.

  • Mike

    @tntdc I already corrected this misconception when DC Guy posted a similar comment in the October 3 article on the same project:

    “@DC Guy, Did you do an RPP Block Data Inquiry? According to the DDOT web-site, that block of Brandywine Street is eligible for RPPs.
    “If you check the RPP regulations, you would realize that blocks with meters or other parking restrictions can be eligible for RPPs if they are adjacent to existing designated streets eligible for stickers.”

    Eligibility for RPPs is not related to whether the street is zoned commercial or residential.

    For example, the residents of The Harrison further up Wisconsin Avenue are all eligible for RPPs, even though the site has the same zoning as this site. Residents of 4622 Wisconsin Avenue are also eligible for RPPs, as are the residents of the Cityline condominiums, which has commercial zoning and was added to the database in 2005.

    Nor is eligibility related to whether there are meters or other parking restrictions on that block. The DDOT web-site has the application which sets out the conditions for designating whether a block or building is eligible for RPP and the process for obtaining that designation.

  • Potowmack

    Tenleytown residents aren't as clever as they think they are. Sure, Douglas can promise them that the leases for this building will ban residents from applying for RPP's. But, let's be realistic here. Douglas is not going to spend any money actually enforcing this once the building is up and running. Unless some busybody in the neighborhood is willing to spend their time trying to catch building residents violating their leases, building residents who want to park on the streets are going to do so. And even if Douglas wanted to try and kick out a good tenant for violating this provision (yeah right), good luck getting DC landlord-tenant court to agree that such a violation is significant enough to actually terminate a lease over. It's like the dumb attempts to keep American University law school students from getting Zone 3 RPP's- only the dumb (or painfully honest) ones get caught.

    Actually, this building looks like a good deal. Free CaBi and Zipcar membership, $100 transit card and you can park your car on the streets for free? Sign me up. The fact that it might annoy the idiot NIMBYs in Tenleytown is just icing on the cake.

  • michaeliceman

    Tsk Tsk Tsk. I guess you all forgot that you are dealing with Norman and Doug Jemal. LOL!! We realize that this is an MOU, right. The Jemals are not stupid. Here is how it plays out. They will put that provision in the lease. Someone will violate and either (i) Jemal will half ass enforce the provision or (ii)if it ends up in court, put the onus on the ANC to defend the provision(the ANC is considered part of DC goverment for situations like this). If the provision is ruled unenforeceable, then Jemal is off the hook.

  • demographicundesirable

    Clearly another development catering to the transient young population. Middle aged and older folks wanting to move into town from the burbs being actively deterred by rental only construction and no parking. With Clarendon, Courthouse, Roslyn, Alexandria, U Street, Bethesda etc all competing for the young, single, hip renter segregation by age is now occurring.

  • anons

    What I think is hilarious is that the frequent and constant target of yuppie scorn, Douglas Jemal is now the messiah of smart development.

    After watching this man operate in DC for the past 20 years, I can tell you that he is going to spend exactly zero effort enforcing this. Then again, he may not even have to put in that much effort because another thing I've learned while living in DC is that the folks in places like Tenley, CP, AU Park etc love to sue people and the city is going to get it in the pants on this one.

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