[Congressional Record Volume 140, Number 67 (Wednesday, May 25, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              PLAYING FAST AND LOOSE WITH BUILDING HEIGHTS

                                 ______


                        HON. FORTNEY PETE STARK

                             of california

                    in the house of representatives

                        Wednesday, May 25, 1994

  Mr. STARK. Mr. Speaker, as chairman of the House Committee on the 
District of Columbia, I am responsible for protecting the Federal 
interest in the city. That responsibility includes safeguarding 
Washington's unique skyline by ensuring that the letter and intent of 
Congress' Height of Buildings Act of 1910 is not circumvented.
  Last month, Representative Bliley, the committee's ranking member, 
and I introduced legislation--H.R. 4242--to block a proposed GW/WETA 
building at 21st and H Streets, NW., because it would violate the 
Height Act. We felt compelled to act after it became apparent that city 
officials and developers are playing fast and loose with the height 
limits. Creeping administrative actions--in the form of zoning 
decisions, regulatory interpretations, and minor violations ignored by 
enforcing authorities--are chipping away, inch by inch, at the Federal 
height restrictions.
  Mr. Speaker, I do not take lightly Federal intervention in local 
matters. Such action should occur only when there is a clear conflict 
with the U.S. Constitution, the Home Rule Act, or the Federal interest. 
However, when the grounds for involvement are evident, the substance of 
the issue should be explored rigorously. I have no interest in 
intervening with the District's zoning decisions, but they must stay 
within the clearly defined Federal interest protected by the Height 
Act.
  The purpose, language, and intent of the Height Act are clear. 
However, as the case history illustrates, there are some who feel 
compelled to create ambiguities where none exist and loopholes where 
none were intended.
  On April 26, the committee held a day-long hearing on the subject. 
Fifteen witnesses appeared, representing the National Capital Planning 
Commission, the D.C. government, opponents of Height Act manipulation, 
and GW/WETA representatives.
  The history of this project reads like a primer in how to manipulate 
the system. Unfortunately, it is indicative of a pattern of abusing and 
weakening the Height Act. The facts and chronology are clear; the 
conclusions are obvious. This is about more than just a specific 
building; it is about a pattern of abuse and the co-opting of a public 
trust. A brief summary for context is helpful.
  In June 1993, GW/WETA applied to construct a building 116.5 feet tall 
in a location with a Height Act limit of 110 feet. The building's 
proponents thought it would fit into a loophole their attorneys had 
recently devised and sold to complacent District zoning officials.
  The District government acknowledges that they didn't know the 
building violated the statute until the matter was raised by the 
building's opponents--20 months after the applicant's first meeting 
with the District. Whether it was the opponent's disclosures, or just 
too big a loophole to accept, on the Wednesday before Thanksgiving, the 
District's zoning administrator advised the Zoning Commission that the 
GW/WETA building was in violation of the Height Act and should not be 
approved as submitted.
  The proponents did to change the height, design, or look of the 
building.
  Over that Thanksgiving weekend, the proponents met privately with 
various District zoning officials and on Monday submitted the identical 
building with new lines on the old plans. There was now a solid studio 
roof in place of the effective ceiling. The space above the new roof 
was relabeled ``mechanical penthouse.''
  No details about the new roof or penthouse were required or 
requested. The revised plans were accepted by the Zoning Commission 
even though the building's height remained unchanged, and the newly 
designated penthouse raised several issues under both the Height Act 
and District's zoning regulations. Furthermore, the Zoning Commission 
denied the opponents' repeated requests for further cross-examination 
about the revised plan, a clear denial of due process.
  Earlier this year the NCPC reviewed this project and advised the city 
that the proposed building was not adverse to the Federal interest. 
Subsequent to that meeting, I discovered that there was significant and 
material information relative to this case that was not presented to 
the NCPC prior to its deliberation and vote.
  At the committee's hearing on the building, the proponents argued 
that the building was always 110 feet tall--``116.5 feet'' was a 
mistake, a typographical error. The documents and architectural 
drawings that contained and repeated that ``typo'' included: the 
applicant's ``Notice of Intent to File,'' (June 3, 1993) and 
``Filing;'' (June 16, 1993), the DC. Zoning Commission's Notice of 
Receipt of Filing (July 20, 1993) and ``Notice of Public Hearing'' 
(September 1, 1993), and the DC Office of Planning's ``Preliminary 
Report'' (July 23, 1993), ``Final Report'' (October 14, 1993), and 
``Summary Abstract'' (December 9, 1993). This incredulous ``typo'' 
argument raises to absurdity the parties' contention that everyone was 
always sensitive to the Height Act and constantly checked and rechecked 
for compliance.
  It is clear from the committee's hearing that city officials are 
confused about their responsibilities and authority under the Height 
Act. For example, even though the law has no waiver provision, city 
zoning regulators routinely authorize waivers of the Height Act 
requirement that penthouses be set back from exterior walls. They 
explain that the same term ``exterior wall'', means one thing under the 
Height Act and something quite different under DC regulations When the 
corporation counsel's office was asked why they had deferred to the 
zoning administrator on a matter of legal interpretation and precedent 
under the Height Act, an assistant corporation counsel flatly and 
wrongly stated that his office was not responsible for enforcing the 
act. When District officials were asked for citations for the authority 
and precedents they were using in reaching these decisions, they could 
not come up with any.
  Regrettably, Mr. Speaker, the GW/WETA building is not an isolated 
case. It is but one example in a pattern of inattention to enforcement 
of the height limits enacted by Congress. Here are some recent 
shenanigans.
  Under the Height Act, a building's height is determined from the 
widest street on which it fronts. Sounds simple enough, but creative 
contrivances have violated horizontal as well as vertical planes. The 
building at 1200 G Street, NW. only fronts on G Street, yet it takes 
its height from the Homer Building on the wider 13th Street because of 
a flimsy composition board walkway connecting the back of these two 
buildings. The city accepted the walkway as making the two structures 
one. 1615 L Street, NW. takes its height from 1125 16th Street. What 
makes these two buildings count as one? They abut, but the only 
connection between the two are four sealed windows on the sixth floor.

  The city will even accept a razed building as the basis for exceeding 
the height limit. 1310 G Street, NW. fronts only on G Street, but was 
authorized to the higher 13th Street limit because it was to connect to 
the Columbia Savings and Loan Building at the corner of G and 13th 
Streets. Before the construction could occur, the Columbia Savings and 
Loan Building was torn down--all there is now is a parking lot. No 
problem for 1310 G, it can still build to the height and would have 
been allowed if the building were still standing. But that is not the 
best part, Mr. Speaker. The owner of what would become 1328 G Street 
has joined as one tax lot with the owner of 1310; and because they will 
be ``connected,'' 1328 G is asserting that it, too, is entitled to the 
same height as the nonexistent building. The saddest part of all, Mr. 
Speaker, as evidenced by a 1991 memorandum from the City's director of 
planning, is that the District has bought into this nonsense and abuse 
of the Federal interest.
  The Height Act clearly states that a building's height is to be 
measured from the street, but zoning officials agreed to Station Place, 
2d and H, NW., developer's request to measure from an overpass. Only 
after the Fine Arts Commission objected and the recent congressional 
attention to the GW/WETA proposal did the zoning administrator decide 
to put a hold on the approval.
  These are not all the examples, just a sampling which clearly 
indicates there are some real problems with developers, lawyers, and 
District officials who are willing collaborators in efforts to 
circumvent the Federal Height Act. Just this week, NCPC staff 
discovered that George Washington University and their zoning pit 
bulls, Wilkes, Artis, Hedrick & Lane, are at it again. They are 
proposing a new building which violates the Height Act limit and 
support their request to the District for an exemption with such 
arguments as: A penthouse over an elevator is not an elevator 
penthouse; a penthouse containing mechanical equipment is not subject 
to the restrictions on a mechanical equipment penthouse; and a stairway 
tower, although not exempt from the Height Act limit, should be.
  I have introduced legislation, H.R. 4243, which would confirm the 
intent of Congress regarding the application of the Height Limits Act 
to buildings in the District of Columbia, and I intend to pursue it 
vigorously through to enactment. The bill defines exterior walls, 
streets, and roofs in plain English. It is simple enough that even 
lawyers, developers, and zoning officials will understand what is legal 
and what is not.
  But the fact that aspects of the law need to be changed does not 
excuse the failure to abide by current law. I oppose the GW/WETA 
building because it violates the 1910 Height Act. It is too tall! My 
intent is not to reinterpret the rules retroactively; I am not 
modifying my total commitment to home rule, and I enthusiastically 
support the goal of WETA moving into the District. I want more 
businesses to move into the city. No one, however, is above the law. 
Unfortunately, local law firms and the District have abused a Federal 
statute with clear language and intent. My objective is to see that 
such abuse stops immediately.
  The GW/WETA case is likely to end up in court. I believe that when 
the dust settles, both the judicial and legislative bodies with 
authority on this matter will decide that this building, and the 
process by which it was approved, are flawed.

                          ____________________