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An Interview With: Maureen Dwyer

Washington, D.C.

Editor's Note: Zoning is an area we haven't covered yet in the Real

Estate Weekly, but the managing partner of one of our sponsors is considered one of the region's experts in it, so we have taken the liberty of talking with her about some new developments.

Dwyer, from New York, came to D.C. for law school at Catholic, from which she graduated in 1978. Her first job was at Wilkes Artis, where there was an opening in the zoning practice, which she enjoyed because she had done urban studies at Smith College. Today she has a leading practice in administrative litigation, representing developers and other institutional users, including numerous colleges. She came to Shaw Pittman in 2000 and became managing partner of the DC office of the combined Pillsbury Winthrop Shaw Pittman, when that merger closed on April 4 of this year. She oversees 225 attorneys (out of 900 firm wide) and an equal number of staff, and hopes to preserve two-thirds of her time to continue her real estate practice. She has been president of Commercial Real Estate Women.

Bisnow: This last week has been a big one for the “inclusionary zoning” debate in which you’re involved in DC. What’s that all about?
Well, as you know, there’s unprecedented residential development going into new areas such as east of the river, NOMA, Georgia Avenue, and the Southeast Federal Center, and housing prices have gone sky high. About a year ago, out of concern about not providing opportunities for DC residents to stay in their neighborhoods or find affordable housing, an application was filed with the DC Zoning Commission asking them to consider imposing an affordable housing requirement. Right now under zoning regulations, if you’re doing planned unit developments or going to the City Council for an alley closing, there’s a set aside for affordable housing. But the goal of this effort was to capture the matter-of-right projects that don’t require zoning or city approval.

What did the Zoning Commission do?  It held hearings, and last week it came to an agreement that something does need to be done. But it was a balance. Several of the commissioners began by recognizing that while we have a vibrant housing market, it’s fragile and they don’t want to jeopardize it. And with inclusionary zoning, we’re only talking about 750 affordable housing units. But even that sends a symbolic message, so the Commission started putting together new regulations that say that any matter-of-right project in the city that has ten or more units will be subject to inclusionary zoning, although the actual areas that would be subject to it would be mapped.

You’re saying there will be a separate “mapping” process to figure out where the affordable housing regulation might apply?
Yes. Once an area is mapped, any matter-of-right project with ten or more units would have to provide affordable housing. But you would get additional height and density rights in return. 50% of any bonus density for a project would have to be devoted to affordable housing. Half of that would have to be at 50% of AMI (the area median income), a determinant of affordability, and the other half would have to be at 80% AMI.

What areas will be “mapped”?
They’re looking to map along the Anacostia to capture the new residential development there, and along commercial corridors and at Metro stations where sites can accommodate additional density and height.

What about the proposal that Planned Unit Developments be subject to inclusionary zoning?
Developers expressed concern that the PUD process that already gives bonus density in return for other amenities, amenities such as child care centers or benefits to local churches or historic preservation, should not be used for affordable housing. The Commission agreed that PUDs would not be subjected to this because they would not want to take away from these other amenities.

Who do you represent in this?  Many of the residential developers, from Boston Properties to KSI to Abdo to Akridge as well as universities. We monitor and provide testimony.

What do they think of the results? The Commission was scheduled to complete its discussion Monday night but postponed it, so the jury is still out as to whether the Commission has struck a good balance. However, more onerous provisions were proposed and rejected, and the Commission realizes that zoning is just one way to address affordable housing.

How long is this process taking?  It’s been going on a year, and will probably take another six to nine months to conclude the mapping process, although the text requirements may be in place in three months. For any developer who is talking to an architect, by the time they get through the permit and construction process, they’ll be dealing with new zoning requirements.

On another subject, you’re on the task force revising the Comprehensive Plan. What is that, anyway? The Plan is a large document that guides all zoning and development decisions in the city. Anyone who has done development here knows about it, because in any zoning case the city must address whether something is consistent, or at least “not inconsistent,” with the Plan. It was in the process of being amended, but the city council directed the Office of Planning to put together a completely new document rather than working with the old document. So the Office of Planning has been working with our task force.

How do you get on it?  Each councilmember appointed two people. I was asked to serve by the chairman, Linda Cropp. We meet monthly, and the plan is to have us provide guidance and advice to the Office of Planning. We should receive a draft of all elements, several hundred pages, with lots of maps and data, by early March, then it should go to the city council in late May before summer recess. We meet at least once a month, in addition to community meetings, to which ANCs are invited as well. We’ll start meeting twice a month once we start receiving drafts of documents in the next several months. The Plan deals with housing, economic development, parks, historic preservation, transportation, land use, and so on. Once adopted by the city council, the Zoning Commission then has to look at the plan and make sure zoning is not inconsistent with it.

What’s the controversy?
Well, the last time the plan was adopted by the council, the Zoning Commission went through a series of “down zonings” throughout the city including places like Tenley Circle. So there’s concern that a new Plan should provide guidance without imposing excessive restrictions and jeopardizing development in the city. One of the big issues some of us on the task force are pushing for is to have the Plan provide additional density at Metro stations so the Zoning Commission can increase zoning to do transit-oriented development. Also, we’d like to increase the density and height allowances throughout major corridors of the city. We’re also concerned about large parcels available that were previously owned by the federal government, such as the McMillan reservoir, and the Armed Forces Retirement Home, that can accommodate additional density.

How often does this process occur?
1989 was the last major set of amendments, and then there were some in 1994 and again in 1998. But this is the first major overhaul of the Plan. The Mayor started the process based on wanting to identify the best practices of other cities. One of the problems with the current Plan is that each of the wards of the city came up with a separate document to guide development of those wards, and they often conflict with the city’s plans. The Plan is two inches thick, and includes land use maps. So, for example, the GW campus is shown in the institutional land use category, downtown is shown in high density commercial. Then it’s up to the Zoning Commission to decide if it’s C-4, C-5 or C-3-C. Often those cases end up in court because there’s a difference of interpretation.

Are you doing this as a civic thing or as a developers’ rep?
A little bit of both. I actually participated in the Comprehensive Plan process back in 1984 when it was first done, so I have some history, and I’ve been involved throughout the years. So it’s time that I’m committing in terms of my civic responsibility, but of course my views on policies are greatly influenced by the development work that I do.

Have you actually read all the hundreds of pages of the Plan?
Oh, yes! Any zoning lawyer is very familiar with the entire Plan. I know it only too well. :)