What The Height Act Amendment Means for DC Rooftop Development

Last week, President Obama signed an amendment into federal law allowing human occupancy in rooftop penthouses on top of DC buildings. This is an exciting update for DC real estate owners and developers because it presents a budding opportunity to build penthouses for more value and usability beyond what is currently permitted.

Currently, DC law permits approvals as an “exception” to DC building height limits in circumstances where penthouses may exceed height limits for “mechanical” purposes only. The federal change reflects broader policy efforts to respond to real-time urban planning needs in Washington, but there are some important elements at play that may determine whether developers will build penthouses for people any time soon. It’s important to note that this new federal law allows for an additional use of DC penthouses; it is not a mandate that DC law be consistent with this federal change. Furthermore, references to “the Height Act” may connote two distinct bodies of law. On the federal side, the Height Act refers to the 1910 Height of Buildings Act, which is the act amended last week at the federal level. On the DC side, the Height Act means additional, specific zoning laws enacted by DC. DC zoning law is not superseded by the federal amendment. The language of the federal Height Act allows for the granting of greater specificity in regulating DC building heights and use under the supervision of DC mayoral and zoning authorities.

Note that DC’s Zoning Commission comprises two federally-appointed commissioners and three DC-resident commissioners appointed by the mayor. The original momentum to this recent federal amendment came from a collaborative study involving both DC’s Office of Planning and the federal National Capital Planning Commission to make informed recommendations to Congress. Despite some divergence in OP and NCPC recommendations, the recent amendment illustrates District-Federal policy alignment for Washington, DC’s physical space. There are also some other differences between federal and DC law on this subject. Current DC zoning regulations limit human occupancy on rooftops and restrict commercial, mechanical penthouses to a vertical height maximum of 18.5 feet with certain setback requirements depending on the building height, street width, and location. The recently amended federal Height Act: it allows human occupancy in a “penthouse” generally, with a vertical height maximum of 20 feet, not to exceed one story. DC regulations could narrow the general federal language if DC responds favorably to permit such human occupancy, and might well involve further specificity on setback and location requirements.

The next mayor will be influential in how DC law responds to the federal amendment. However, until this happens, valuable penthouse development opportunities are yet to be realized.

Related topics: Development, Landlords, Permitting, Real Estate, Retail, Tenant, Zoning