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Message from Ann Loikow regarding hearing of the DC Council's
Committee on Government Operations
February 8, 2002
Monday, Feb. 11, at 11:30-12 pm, the Council's Committee on Govt. Operations
will hold a hearing on the Office of the Secretary of DC which oversees the
Office of Documents. It is the Office of Documents which is in the process
of putting together a revised title 11 (Zoning) to the DC Municipal
Regulations. I have a copy of the draft and the antenna regulations have NOT
been corrected to reflect the Zoning Commission's orders.
Jerrily Kress, Director of OZ, in her testimony Wed. before the Council's
Committee of the Whole which was holding the oversight hearing on the Office of
Zoning, said:
"...OZ unofficially continued updating the DCMR Title 11 Zoning Regulations,
which had not been updated since MArch 1996 ... OZ is now pleased to annouce
that the ZAC (Zoning Advisory Committee) and OZ staff have reviewed, proofed and
edited, in its entirety, the DCMR 11 Zoning Regulations. All updated/changes to
the zoning regulations are included through today, except for the
codification errors in the antenna regulations from 1989 by determination of the
Office of Documents (OD)."
In you can, please call Donna Cooper of Committee Chairperson Vincent
Orange's office at 202-724-8035 and ask to testify and just mention this
codification problem and ask the Committee to help correct it. The major issue
is that the regulations should say that all antenna towers, over certain minimal
heights, in all zones should have been treated as special exceptions requiring
public notice and hearing before the Board of Zoning Adjustment. This should
have been the case with the American Tower tower in Tenley.
If you sign up to testify, please let me know. If you have any questions,
please call me at 202-363-6658.
Below are excerpts from the petition the Cleveland Park Citizens
Association submitted to the Zoning Commission in July 2001, which describes
the miscodification problem:
The CPCA discussed the miscodification in its written
and oral submissions in Z.C. Case No. 00-29TA and at the Zoning
Commission’s public roundtable on antennas, antenna towers and the
structures on which they are installed held on March 5, 2001. The Stop
the Tower Citizens Coalition made the same request and submitted an
opinion of counsel (attached), by Richard B. Nettler of Robins, Kaplan,
Miller & Ciresi L.l.P., on the miscodification. The Federation
of Citizens Associations of the District of Columbia and the Ward Three
Democratic Committee have also requested correction of the
miscodification of Order 587. Copies of their resolutions are attached.
The Z.C. Order No. 587 was issued after an
extensive five year rulemaking process. It is the substantive law
on zoning for antennas and antenna towers in the District of Columbia
and must be the starting point for any rulemaking by the Commission to
revise the District of Columbia's antenna and antenna tower regulations.
That order sets out a general regulatory framework:
(1) to allow as an unqualified matter of right
in all zone districts those antennas which have the least potential
adverse aesthetic impact [i.e., home TV antennas]; (2) to allow as a
qualified matter of right, that is, with conditions for administrative
review [review by OP and Zoning Administrator], antennas which have
somewhat greater potential for such impact [i.e., certain ground mounted
and roof mounted antennas up to 12 or 20 feet, depending upon the zoning
district]; and (3) to allow any other antenna as a special exception.
[p. 3 of Order 587]
The provisions of Order 587 dealing with commercial
broadcast towers and other antenna towers that exceed the height limits
set in the order for matter of right antennas and antenna towers
(definition of "antenna" in § 199 of the Zoning Regulations
includes the supporting tower) was miscodified in the Title 11 of the DC
Municipal Regulations (DCMR). Under the 1989 order, these antennas
and towers were governed by sections 211 (commercial broadcast towers)
and 212 (other than commercial broadcast towers). Under these two
sections, such antennas and towers could only be erected in any zoning
district if authorized by the Board of Zoning Adjustment (BZA) through
the special exception process. The section on special exceptions
in 11 DCMR (originally § 3108 and now § 3104) was erroneously not
amended as required by paragraph 26 (pp. 19-20 of Order 587) to clearly
show this and retained the pre-1989 language (which was amended in
November 2000 in a technical correction to apply to CR, SP and W
districts as well as R districts). Also, § 701.6(g), which says
an "antenna tower for television and radio broadcasting" is a
matter of right in commercial districts, which was in the pre-1989
zoning regulations, was erroneously left in.
CPCA separately provided the Director of the Office of
Zoning (and the Office of Documents) with a tabbed and annotated set of
documents excerpted from the complete record in Case 84-10 (records
which are also cited in Mr. Nettler’s opinion). The record
clearly shows that the Commission created the comprehensive, consistent
framework for the regulation of antennas and their supporting structures
described in the preamble to the order, as quoted above, which requires
all antennas and supporting structures exceeding the matter of right
heights to be approved the Board of Zoning Adjustment only as a special
exception pursuant to the provisions of section 211 or 212 of the Zoning
Regulations. Comparison of the 1986 version of Title 11 of the
DCMR (found in the Zoning Commission’s office) with Order 587 clearly
shows that the sections discussed above were not amended as required by
Order 587.
Ann Hume Loikow
Cleveland Park Citizens Association
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