Stop the Tower

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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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