Can D.C. Council Legally Allow Construction Without a Permit?
D.C. Councilmembers Tommy Wells and Marion Barry have been working to allow construction on the Anacostia Playhouse to move forward, even though it hasn't received a building permit due to parking issues. In short, the issue is that the theater doesn't have the on-site parking required by the city's zoning regulations, so it's applying for a variance to exempt it from the requirements. But the hearing with the Board of Zoning Adjustment won't happen until April 23, potentially leaving the Playhouse unable to complete construction by its scheduled June opening.
Wells and Barry asked Council Chairman Phil Mendelson to add emergency legislation to the Council agenda this past Tuesday that would allow construction to begin immediately, with a 60-day window for the Playhouse to resolve the zoning issues (though a variance). But Mendelson denied the request, citing reluctance to skirt compliance with the zoning rules.
Which raises the question: Can the Council legally grant permission to work on a building that hasn't met the zoning requirements?
Generally, zoning is sacrosanct: Only the Zoning Commission and BZA can amend or grant exceptions to it. (They may amend it in a big way soon; a rewrite of the zoning code is currently in the works.) It would appear to set a dangerous precedent if the Council takes action to ignore the zoning regulations for a project its members happen to like.
But Wells' office is confident the emergency legislation is on solid legal ground. According to Wells' chief of staff, Charles Allen, Wells' office consulted Council General Counsel David Zvenyach in drafting the legislation, and Zvenyach assured them that it was permissible.
"We worked on the legislation with him and with his staff," Allen says. "We brought it to him saying, 'We can’t legislate zoning. What are our options here?'"
The solution was a "short-term exception from the building variance requirement" that allows the Department of Consumer and Regulatory Affairs to issue a building permit in this particular situation.
"We were not saying they shall issue the permits," Allen says.
Allen notes the legislation includes a "safety valve," namely that the construction would go forward on the condition that the variance be granted—and the Playhouse would be on the hook if it's not granted.
"All the risk would be assumed by Anacostia Playhouse," Allen says, "so in the event that that were to not get the variance—which they very likely will, since the ANC's supporting it, pretty much everyone’s supporting it—all of their building permits would become void."
Zvenyach's, Barry's, and Mendelson's offices didn't immediately respond to requests for comment.
Allen says that since Tuesday's meeting was a so-called additional legislative meeting, Mendelson had the discretion not to add proposed legislation to the agenda. At regular legislative meetings, if a councilmember wants to put an item on the agenda, the chairman can't block it. The next scheduled regular legislative meeting is on April 9.
If the legislation does go though, the next question is whether DCRA would issue a permit that runs counter to the zoning regulations. "We would review any legislation with our legal staff and proceed from there," says DCRA spokesman Helder Gil.
Playhouse COO Julia Christian Robey says that if permission to build is granted on April 9, she'd have just enough time to complete the eight to nine weeks of construction before a mid-June opening. Her mother, Playhouse CEO Adele Robey, is meeting with Mendelson at 5:30 p.m. today to press her case.
Photo by Darrow Montgomery