P.C. #50.A. July 7, Arlington County Board 2100 Clarendon Boulevard Suite 300 Arlington, Virginia 22201

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1 CHARLES MONFORT CHAIR ROSEMARY CIOTTI VICE CHAIR Arlington County Board 2100 Clarendon Boulevard Suite 300 Arlington, Virginia July 7, 2010 LISA E. MAHER COORDINATOR GIZELE C. JOHNSON CLERK SUBJECT: 1. Z SHLP ZOSO, LLC; Pug Cellars, LLC and Blue Horseshoe Inc., amend the proffers associated with this rezoning application, to permit structures and/or uses in the plaza and/or sidewalk in the C-TH zoning district under 26A.A.37 and 31.A.11. Property is approximately 50,000 square feet, located at 1025 N. Fillmore St. and is identified as RPC: Applicable Policies include GLUP Service Commercial and Clarendon Sector Plan. RECOMMENDATION: Amend the proffer to permit sidewalk café seating subject to a use permit and subject to seating on North Fillmore Street with a six foot clear sidewalk width, and seating on 11 th Street within 15 feet from the North Fillmore Street building line, and the hours to be until 10:00 pm on Friday and Saturday, and 9:00 pm on Sunday through Thursday. Live entertainment, amplification and the playing of radios or recorded music shall be prohibited in all outdoor cafes. Also, staff should revise Proffer #1 to reflect the most current site plan date, clarify what in the current proffer prohibits the applicant from applying for a Certificate of Occupancy for café seating on the patio, and clarify what administrative changes are permitted for any proffer, and for this proffer in particular. Dear County Board Members: The Planning Commission heard this item at its June 28, 2010 meeting. The applicant did not make a presentation. Peter Schulz, Planning staff, described zoning proffers generally and briefly summarized the ZOSO s history, the proposed proffer amendments, and the draft staff recommendation to support the applicant s proffer amendment dated June 22, P.C. #50.A.

2 Public Speakers Scot Henderson lives at 1046 N. Edgewood Street, immediately adjacent to the patio. He is addressing the original proffer amendment from May. He has lived in Arlington for 28 years. His property abuts the patio with an approximately four foot high wall. The original proffer amendment, which he opposes, provides for up to 24 seats in the patio with no limit on standing room. Until he has seen the revised proffer amendment, he can t address it. Mr. Henderson recommends either that the County Board deny the proffer amendment or defer it until he can see a proffer amendment that he is comfortable with. He is uncomfortable with the seating for 24 in the rear patio, could be comfortable with seating on 11 th Street, and is comfortable with the seating on North Fillmore Street. At 7:17 pm, Commissioner Ciotti recessed the meeting to give members of the public an opportunity to read the June 22, 2010 proffer amendment, after it became apparent that community members giving testimony were unclear about what proposal was before the Planning Commission. Commissioner Ciotti reconvened the meeting at 7:22 pm. Mr. Schulz explained that the June 22 proffer includes changes to the areas and hours of outdoor seating and to the clear sidewalks. Commissioner Dorsey confirmed with Mr. Schulz that the June 22 proffer does not permit outdoor seating at all on the east side of the building. Mr. Henderson confirmed with Mr. Schulz that the revised proffer amendment dated June 22 must come from the applicant and be signed and notarized before the County Board hearing. June O Connell recalled the numerous times she was involved in site plans in Clarendon- Courthouse. She opposes seating in the patio and on 11 th Street. If 11 th Street is included, her concern is that more and more tables can be added administratively. She said that the community would not have supported the project if there had been any suggestion of seating in the patio area. There was supposed to be office use on the ground floor on most of 11 th Street, with a nice lobby. People do not want noise right outside their homes. These are residential edge districts, and the Planning Commission needs to affirm that plans and approvals are honored and recognized. The Planning Commission should not support a proffer that includes seating on 11 th Street. Michael Hutchinson lives across from ZOSO on North 11 th Street. He has circulated remarks regarding patio seating, which are no longer relevant with the removal of seating from the patio. The new proposal could be consistent with outdoor seating only in the first 25 feet on 11 th Street. Robert Wood represents the Clarendon-Courthouse Civic Association (CCCA) and voted with the majority to support seating only on Fillmore Street. He lives several blocks away. He works from home, and understands the effect ongoing noise can have on neighbors. To be subjected to intermittent loud conversation most of the time would be untenable. Neighbors would have only four options; close windows, get used to it, complain regularly, or move. It s bad enough to cope with this after work and on weekends, but he is particularly concerned with those who would have to live with this all day long. When both owners presented proposals, Mr. Vasco said his patrons were not noisy, and he would work with them, which gave Mr. Wood the impression that he would be a good neighbor. Recent postings on the American Flatbread website and other information have made Mr. Wood more skeptical. A future establishment could have rowdier patrons. Seating on Fillmore would be an addition to the community but would have a detrimental effect on 11 th street. 2

3 Jeanne Dumas lives at 2855 North 11 th Street, across the street from the site. She has always been supportive of the businesses. As a Board member of Clarendon Alliance, she helped get their names out in the community. She fully supports outdoor seating on Fillmore Street, which is a commercial street. She is concerned with allowing outdoor seating along all of 11 th Street. With the proposed clear sidewalk width, 11 th Street could accommodate 68 diners. She sees no protections in the proposed proffer language from such a request. She does not believe that seating along 11 th street is consistent with the Clarendon Sector Plan, the Arlington County Retail Action Plan, or the Clarendon-Courthouse Neighborhood Conservation (NC) Plan. Map 2.5 of the Sector Plan depicts only Fillmore Street as having the potential for a retail frontage. Map 3.2 of the Sector Plan shows assigned frontage types, which includes Fillmore Street wrapping around 11 th Street as a Side Street B location that can support a range of ground floor uses. While the Sector Plan supports ground floor cafes, it s clear from these maps that they should be located on Fillmore Street with a slight wrap around 11 th Street. The Retail Action Plan map only depicts Fillmore Street as a neighborhood street that encourages consumer services. Eleventh Street east of Fillmore Street is depicted as residential. The Clarendon-Courthouse NC Plan describes this street as residential and Fillmore Street as commercial. Allowing outdoor seating on 11 th Street is inconsistent with all three plans, would set a bad precedent, and would not honor promises made to the neighborhood. Peter Owen lives on Adams Street. He referenced Map 2.5 of the Clarendon Sector Plan, which shows where retail is expected, including Fillmore Street but not 11 th Street. Map 2.10 on page 71 shows 11 th Street as a tertiary street, and nowhere are tertiary streets shown as having retail uses. He still does not understand what s being proposed, and suggested that since the applicant has not made a presentation, the Planning Commission should be especially careful in considering this amendment. The hours of operation listed in various places in the staff report are inconsistent. He s not clear if the patio seating has been eliminated or what range of possibilities the applicant may bring to the County Board. There are different versions of how far along 11 th Street the outdoor seating would be allowed. He hopes the Planning Commission will consider all this. Richard Dumas represents the CCCA. He enjoys proximity to the Clarendon amenities, loves outdoor seating, and wants a vibrant community. The CCCA strongly supports Fillmore Street seating, and opposes 11 th Street and buffer seating areas. The first reason is the impact on the nearby neighbors. The neighbors supported the ZOSO project, which was contingent on the buffer. Approving seating there would erode the trust of Arlington citizens. The Planning Commission should make a strong statement about honoring previous agreements. If there weren t a minor amendment to change the use from office to restaurant, we wouldn t be here tonight. The staff report does not note that the Clarendon Sector Plan supports outdoor seating on Fillmore Street but not 11 th Street. Mr. Dumas is concerned about possible future amendments to increase the seating to people on 11 th Street. Ms. O Connell mentioned the issue of edge neighborhoods; approvals like this could be a shock to edge neighborhoods all over the County. He s concerned about precedents for all of Arlington. Larry Mayer represents the Lyon Park Civic Association, which has been concerned with provisions in the original proffer. Problems with the buffer go back to the self-storage facility on Highland and 10 th Streets, to the storage facility on Fillmore and 10 th Streets, and Garfield Park. That s why, in the Clarendon Sector Plan, which follows this proffer, outdoor seating was only recommended on Fillmore Street and not further into the neighborhood. Map 2.5, on page 44 of the Clarendon Sector 3

4 Plan, shows a similar pattern along the south side of 10 th Street. Some of the staff report seems somewhat obtuse. The way the proffer amendment is worded, seating on 11 th Street can go all the way along the property, and that s a concern. He supports American Flatbread but needs to be clear about what the community supports. Planning Commission Discussion Commissioner Ciotti clarified with Mr. Schulz that the proposed proffer amendment would allow the applicant to apply for a use permit for outdoor seating on 11 th Street. While the specific location and number of seats would usually be handled in a use permit, parameters such as those could be written into the proffers. The proffered closing hours would be at 9 pm Sundays through Thursdays, and 10 pm Fridays and Saturdays. These are more restrictive than general Zoning Ordinance provisions for outdoor cafes in residential areas. Commissioner Savela commented that the only signed proffer amendment County staff has received to date is the one after page eight (May 2010) in the staff report. However, staff, presumably in consultation with the applicants, has developed the new version, which would need to be finalized by the applicant before the County Board meeting. Commissioner Hunt noted that County policy supports cafes in rights of way. What s different about this location? Mr. Schulz explained that most properties require only site plan or use permit approval for outdoor seating. This site would prohibit that ability without a proffer amendment. Commissioner Hunt confirmed with Mr. Schulz that the staff recommendation does not specify location of seating in the proffer, but the Planning Commission recommendation can include more specificity. In addition, staff supports the applicant s use permit request for one table on 11 th Street, which would be located about 10 feet from the corner. Commissioner Dorsey clarified with Mr. Schulz that the May 2010 proffer amendment would allow seating in the patio to be approved administratively. The Zoning Administrator has interpreted the existing proffers to prohibit outdoor seating in the patio, but the Planning Commission could recommend proffer language making the prohibition explicit. In response to follow-up questions from Commissioners Malis and Cole, Mr. Schulz explained that the Zoning Administrator cited Proffer #1, which limits development to what is shown in the plans, to prohibit outdoor seating, since it was not shown on the plans. Commissioner Savela raised the question of whether the plans for the original proffer provided for ground floor office space, as shown in Ms. O Connell s handout, which was then interpreted to allow both office and retail uses, and suggested the same kind of interpretation could potentially allow outdoor seating where none was shown. Mr. Schulz displayed the large June 28, 2004 plans from the Zoning Office files, as referenced in the original proffers, showing that space as office/retail. Ms. Maher added that the staff report for the original proffer also described the ground floor space as retail-office. Commissioner Savela questioned whether the hours of outdoor seating are sufficiently long. Mr. Schulz said that since residential uses are across the street, and the applicant s lease requires a 10 pm limit, staff believes the proffered hours are appropriate. 4

5 Commissioner Serie noted that only the requested use permit would restrict seating on 11 th Street to one table. The proffer amendment language would allow the applicant to request additional seating along the entire building frontage on 11 th Street. Commissioner Fallon suggested that given County policy goals pertaining to outdoor seating and street activation, rulings from the Zoning Administrator regarding what the proffers allow, and the need for use permits, the Planning Commission can make its own recommendation for what it wants to see in a proffer amendment. Commissioner Hunt recalled the original proffer discussion of the buffer and trees. It s clear that the eastern portion of the site does not all have trees, and it looks like two-thirds of the area is paved, both of which do not match the buffer discussion during the public hearings on the proffer. The four- foot wall does not create any sense of security. Staff should look into this. The draft staff report is not clear. It says the Clarendon Sector Plan calls for outdoor seating, but the Sector Plan does not call for outdoor seating in all of the locations included in the proffer. The County Board should get correct and clear information. Commissioner Malis noted that Proffer #1 refers to plans dated June 28, A later administrative amendment changed the date of the plans and added some other features, so the date of the plans is no longer June 28, Mr. Schulz responded that the plans were modified, but not in a way that changed the proffer plan date. Commissioner Malis asked what elements in a proffer could be changed via an administrative amendment as was done in Mr. Schulz would have to consult with the Zoning Administrator. Commissioner Harner commented that the Planning Commission had spent a lot of time on the technicalities of this sloppily submitted proffer amendment. This is an urban site that brings together many fairly intense uses. It s not unreasonable to consider this type of use and not unreasonable that neighbors would face a situation where this occurs. There s an implication that part of 11 th Street was zoned as residential because it was not anticipated that retail would be successful. It s lucky that there is a café in this location. Map 3.2 in the Clarendon Sector Plan shows Side Street B as turning the corner. There are a lot of other places on the map where a side street meets urban residential frontage or Side Street B across the street from an urban residential frontage. It s not unreasonable to assume that café tables could extend around the corner, similar to a Columbia Pike Form Based Code amendment that was recently considered. Commissioner Harner asked Mr. Dumas if the CCCA voted on each area separately, and how the community felt about seating on 11 th Street itself or along a portion of 11 th Street. Mr. Dumas responded that CCCA voted on seating along 11 th Street and in the patio in one vote. CCCA reacted to the proffer amendment allowing seating along all of 11 th Street. Perhaps the community would have some support for seating to slightly round the corner. The affected neighbors would probably not mind a two-seat table. CCCA would want to see a proffer that prevents more extensive seating. Commissioner Harner said that this could be addressed in the use permit process. Commissioner Serie asked Mr. Owen to discuss the Clarendon Sector Plan maps, particularly on page 71, and his references to 11 th Street being a tertiary street, none of which were planned to have outdoor seating. Mr. Owen answered that there is no specific map for outdoor seating. The most relevant map is the use map that says how these spaces are to be used and that shows no wrapping of 5

6 uses at the corners. Map 2.10 on page 71 is more contextual and includes definitions of what it is meant to convey, which is the infrastructure and physical design of sidewalks. The ZOSO build-out is more generous than what is shown on the map. To determine what is planned to occur the activity in the sidewalk the maps of retail uses and street designations seem most relevant. Commissioner Serie commented that this proffer is not just for a nice pizza place. This could be a sports bar nightclub, or whatever the current or future owners want for their business model, six months from now. Other, louder uses could pursue the opportunity for outdoor seating. He noted that he watched the video of the 2004 County Board meeting to consider the original ZOSO proffer, and no public speakers, County staff, or County Board members discussed retail on 11 th Street, but all spoke about retail to activate and enliven Fillmore Street. Eleventh Street was not forgotten; explicit in the approved plans was only one door into the building on 11 th Street. This is what the community bought into as part of the agreement. This street is only about 45 feet wide to the nearest residential building. Like area residents, Commissioner Serie is very pro-retail on Fillmore Street and wants it to succeed, but we should also respect agreements and sector plans. Planning Commission Motion Commissioner Hunt moved that the Planning Commission recommend to the County Board that the proffer be amended to permit sidewalk café seating subject to a use permit and subject to seating on North Fillmore Street with a six-foot clear sidewalk width, and seating on 11 th Street within 15 feet from the North Fillmore Street building line, with one table with two seats, and the hours to be until 10:00 pm on Friday and Saturday, and 9:00 pm on Sunday through Thursday. Commissioner Dorsey seconded the motion. Commissioner Hunt commented that there is a need to balance the County s policies of activating streets, but it is clear that the zoning under which this building was built requires a buffer to the neighborhood, and the buffer is not adequate. It s frustrating to see when the negotiated plans are not upheld. There is no green buffer here, and to permit a sidewalk café here would add insult to injury. Commissioner Serie clarified with Commissioner Hunt that the recommendation specifies the maximums in the proffer that can be approved. Commissioner Fallon clarified with Ms. Maher that the form of the Planning Commission s motion can be flexible. However, the County Board can only approve or deny the proffered amendment language. Commissioner Fallon will support the motion, although he does not support seating along 11 th Street. The motion would allow the applicant to apply for it, but approval is not guaranteed. The motion protects sidewalk clear widths, activates the street, and provides appropriate hours of operation. Commissioner Malis asked for unanimous consent to amend the motion to add that staff revise Proffer #1 to reflect the most current site plan date, clarify what in the current proffer prohibits the applicant from applying for a Certificate of Occupancy for café seating on the patio, and clarify what administrative changes are permitted for any proffer, and for this proffer in particular. There was an objection, so the motion was not amended. 6

7 Commissioner Malis moved to amend the motion to add that staff should revise Proffer #1 to reflect the most current site plan date, clarify what in the current proffer prohibits the applicant from applying for a Certificate of Occupancy for café seating on the patio, and clarify what administrative changes are permitted for any proffer, and for this proffer in particular. Commissioner Serie seconded the motion. Commissioner Serie agrees with Commissioner Malis in general, although the amendment would say that everything existing should become part of the accepted plan. However, the area behind the building was changed dramatically by the 2007 administrative change, to make it look like a public park with benches and the security gate removed, which would be codified by the amendment. That will lead to future problems unless the park benches are removed and the area posted. Commissioner Dorsey commented that the way it looks now was accepted administratively, so that is not a part of this discussion. Commissioner Savela sympathizes with Commissioner Serie s point. It s unfortunate to see these kinds of changes made administratively. However, if the Zoning Administrator at that time had the authority to approve those changes, the current Zoning Administrator cannot change it. She will support the amendment to the motion, which clarifies why it is so essential to be specific in the proffers. Commissioner Serie agrees that administrative change caused a lot of mischief. The building owner, and not just the retail establishments, gains from the current proffer amendment. Considerations were given to the County with the original proffer. The County Board should ask for consideration for the proposed proffer amendment, which is a significant updating that provides economic benefits to the building owner, such as a provision for signage to make sure the area is a buffer. The Planning Commission voted 7-2 to support the amendment. Commissioners Ciotti, Cole, Dorsey, Harner, Hunt, Malis, and Savela supported the motion. Commissioners Fallon and Serie opposed the motion. Commissioner Harner asked for unanimous consent to amend the motion to remove the reference to a single table on 11 th Street. There was an objection, so the motion was not amended. Commissioner Harner moved to amend the motion to remove the reference to a single table on 11 th Street. Commissioner Dorsey seconded the motion. Commissioner Harner explained that the motion already includes dimensions for where the seating would be allowed, and the additional restriction is excessive. Commissioner Dorsey was going to offer the same motion. That detail is better addressed as part of a use permit. He is not comfortable making the decision tonight that one table is the right decision. There would be ample opportunity for the community to weigh in on the exact configuration of seating through the use permit process. Commissioner Serie will not support the amendment. He believes Commissioner Hunt was gracious in including this quantity of seating on 11 th Street given the Clarendon Sector Plan and the testimony at the County Board meeting in Commissioner Savela will support the amendment. Proffer #59C discusses visibility of the retail storefronts and street activation. Ms. O Connell s handout shows retail back 24 feet, so the 7

8 amendment is consistent with the documents from 2004 and reasonably consistent with the Clarendon Sector Plan. Commissioner Hunt spent a lot of time on this project. This is a transition, and it needs a buffer. This is a balance between outdoor seating wrapping the corner and CCCA s vote not to have seating on 11 th Street. Staff has recommended that it s appropriate to have one table. She understands the need for active retail and transparent windows. There is a transition along 11 th Street. Sidewalk cafes are located under windows of residential units above storefronts. It s critical in Clarendon to maintain a balance and to protect single-family neighborhoods. Apartment dwellers are ratcheting up a step into the urban environment, and expecting more vitality is reasonable. The C-TH Zoning District requires a buffer, which is sadly missing. She will not support this amendment. Commissioner Malis will support the amendment. The Retail Attraction and Marketing Plan discusses outdoor seating wrapping 25 feet around the corner. Fifteen feet is somewhat more constrained. Her sense is that the neighbors on 11 th Street think wrapping the corner should be considered. The details could be worked out in a use permit. Lack of street parking has made this a dead corner. Everyone could benefit from activating this corner. Awnings, planters, or other items would create an attractive environment. Commissioner Malis sees these seats as helping to make this area attractive and helping the businesses. Commissioner Fallon will oppose the amendment. He was swayed by Mr. Wood s comments about people nearby who have to live with this. He agrees that this street needs more activation, which could be done on one of the other corners. He prefers that there not be any café seating on 11 th Street. These areas do expand, and there is limited County success with enforcement. Commissioner Serie thinks Commissioner Hunt is being generous with 15 feet and one table on 11 th Street. The 2004 documents submitted to the County Board do not show a wrap around for outdoor seating on 11 th Street, and there was no discussion at the 2004 County Board meeting of outdoor seating on 11 th Street. There is no existing enforcement of outdoor tables at night, and there is creep in the number of tables and amount of space. The Planning Commission voted 5-4 to support the amendment. Commissioners Cole, Dorsey, Harner, Malis, and Savela supported the motion. Commissioners Ciotti, Fallon, Hunt, and Serie opposed the motion. Commissioner Savela will support the main motion as amended. She understands concerns around the corner of 11 th Street. Other café seating is in close proximity to residential development on small streets. The use permit process will allow neighbors to monitor the noise level and adjust tables and noise. She regrets that the American Flatbread owner was not involved in the original approval of this project. Commissioner Savela can understand that the patio looks like spectacular seating, but that was not its intent. It s disheartening to learn of all the administrative changes. She has been concerned about the viability of this retail. The retailers are incredible, and she assumes the neighbors enjoy having these businesses. She hopes the use permit process achieves the goal of attracting more people to these businesses. She regrets that the dialogue between the neighbors and the business owners have deteriorated based on what she s been seeing on the web and hopes there are no lingering ill feelings. 8

9 Commissioner Ciotti will support the amendment. This corner needs to be activated. As someone who lives in Ballston, she has experienced how little noise will really be created. Only when an outdoor café reaches a dozen or so tables does it generate real restaurant noise. Any use permit will be up for review at regular intervals. Outdoor seating is vital to the business plan. Commissioner Dorsey will support the motion as amended and associates himself with Commissioner Savela. The only real issue remaining with the proffer amendment is whether there are one or more tables on 11 th Street. Given where the process started, this appears to be a good compromise. The proposed outdoor seating would make the businesses more competitive. If retail is to be successful, we need outdoor seating, and he agrees with Commissioner Ciotti that a small number of tables would not reduce the neighborhood s quality of life. Commissioner Dorsey expects everyone will look back on this and see the limited seating on 11 th Street as not a big deal. He s patronized all the businesses on that row and believes they enhance Arlington s character. Commissioner Cole thanks the neighbors and business owners that he has spoken with. If not for the fact that it would penalize the business owners, he would recommend deferral, because staff came unprepared to answer some important questions. He will support the motion and hopes the accommodation for the businesses will not unduly burden the neighbors. The buffer does largely work, with a wall seven feet high for most of its length and mostly green except for the part that has been turned into a patio. Parking exists across Fillmore Street and on 11 th Street west of Fillmore. This creates a model for edge development. Perhaps this could be a solution on Lee Highway, where edge development is a constant problem. Commissioner Serie will support the motion with some reservations. He notes that Commissioner Hunt s amendment addresses the first two sentences of the last paragraph on page eight of the staff report. Commissioner Serie asked for unanimous consent to amend the motion to include the last sentence of page eight of the staff report regarding the prohibition on live entertainment, amplification, and playing of radios or recorded music in all outdoor cafes. There was no objection, so the motion was amended. Commissioner Serie has patronized all the food serving retail on Fillmore Street. He thinks the County, in exchange for giving the building owner value by making this change, can ask for consideration in terms of improvements to the buffer area such as landscaping, screening, and signage. 9

10 The Planning Commission voted 9-0 to support the main motion. Commissioners Ciotti, Cole, Dorsey, Fallon, Harner, Hunt, Malis, Savela, and Serie supported the motion. Respectfully Submitted, Arlington County Planning Commission Rosemary Ciotti, Acting Planning Commission Chair 10