Commissioners Present: Julie Olson, Will Hill, Antonette Russell, Neil Glick, Mary Wright, David Garrison, Ken Jarboe, Daniel Ostergaard, Carol Green, and Executive Director, Bert Randolph Commissioner Francis Campbell arrived after the meeting had started.
Commissioners Absent: None
Chairperson Julie Olson chaired the meeting and the Commissioners introduced themselves.
There was a quorum for conducting business.
Adoption of Agenda
The Chair asked if there were
any changes or deletions on the agenda.
The Chair stated that HPA #07-150,
Commissioner Glick made the motion that the agenda be adopted as amended. The motion was seconded by Commissioner Wright.
The Chair asked all in favor of adopting the agenda as amended to raise their hands. The vote was unanimous (9-0).
Soccer Kick Wall
– Mr. Peter Theil who lives at 12th and
The Chair stated that she had received a copy of an e-mail Mr. Theil had send to Commissioner Jarboe and she had forwarded it to Councilmember Wells, who is the Chairperson on the Council for Parks and Recreation, for his input.
Commissioner Hill stated that he was willing to setup a SMD meeting with neighbors to discuss the issue.
Mr. Larry Kaufer, who is with Sports On The Hill, stated
that it is his organization that is proposing to build the wall, which would be
located about mid-way on
Commissioner Olson told Mr. Kaufer that one of the main concerns voiced by the community was for safety and she asked if it would be possible for people to hide behind the wall. Mr. Kaufer stated that the wall will not be solid, thus you would be able to see through it, which means a person could not hide behind it.
It was decided that Commissioner Hill will arrange to hold and SMD meeting for the neighbors to discuss the Kick Wall. If future action is required by the ANC, the parties will be invited back to make a presentation before the Planning and Zoning Committee.
Traffic Problems 17th Street, SE – Ms. Susan Fariss, who lives at 17th and E Street, SE, rose and asked the Commission to help her and her neighbors address the traffic problem on 17th Street, SE where people are speeding down the street endangering the lives of people and pets in the area. Ms. Fariss and her neighbors are asking for help before someone is seriously inquired or killed.
Commissioner Jarboe stated that the Commission has on several occasions requested DDOT assistance in addressing this issue. It is Commissioner Jarboe’s understanding that the Capitol Hill Traffic Study does call for the street to be turned into a two-way traffic flow, with the belief that it will slow down traffic. Commissioner Jarboe went on to say that if Ms. Fariss and her neighbors went to DDOT, it is his opinion that DDOT would tell them that that the two-way change is what they are in the process of doing to address the speeding issue. Commissioner Jarboe suggested that Ms. Fariss and her neighbors could come up with different types of short-term actions that could be taken and write DDOT requesting a Traffic Calming Study to help address the problem. Commissioner Jarboe assured Ms. Fariss that the Commission would be more than willing to write a letter supporting their efforts.
Commissioner Russell suggested that the best thing the group
could do is ask for the installation of speed camera on
Commissioner Jarboe suggested that the group put together a petition and have everyone in the neighborhood sign it and ask specifically for a speed camera on the spot they are interested in controlling. Commissioner Jarboe stated the Commission would then forward their petition to DDOT with the Commission’s letter supporting their petition. He added that a great deal of the traffic will be reduced when the 11th Street Bridge Project is completed.
Commissioner Hill informed the community that they could see
what DDOT is proposing in regards to the redesign of the intersection by
Marion Park Memorial – Ms. Sharon Geno
stated that residents surrounding Marion Park (Friends of Marion Park) have
been following up on the presentation that was made at the Commission’s
September, 2006 meeting regarding the memorial/statue of Gen. Marion proposed
by a group from
Ms. Geno stated that there was a prior plan developed for Marion Park, which they believe is excellent, and they would like to make sure consideration is given to including it in planning for the park. Ms. Geno further stated that she has been in conversations with Del. Norton's office about facilitating a meeting with the Park Service about the park’s maintenance and details of the statue. Additionally, she has been in touch with Councilman Wells’ Office.
Geno stated that Mr. McCabe has graciously agreed to come to DC on Tuesday,
April 17th to meet with the neighborhood and discuss his proposal. The meeting will be start at 6:30 p.m. and
will be held at St. Peter's
Commissioner Olson stated that Marion Park is in her SMD and she wholeheartedly supports their efforts and would be attending the meeting to represent the ANC and herself. Commissioner Olson went on to say that the bill is asking that a monument be placed in a park in the city and they have chosen this site (Marion Park), she is not sure if the bill deals with funding matters.
Metro Parking Problem and Park Maintenance
– Mr. Michael Macintosh, who lives at 9th &
Macintosh’s other issue is the park that is located across the street from his
home, which was recently turned over to the City by an act of Congress and the
need for the City to do a better job of maintaining the park. Mr. Macintosh went on to say that his family
had been in the process of donating $20,000 to the Park Department Services to
replace the benches in the park. However
because of the change in ownership their proposal is in flux. Now the problem is that this park and others
parks in the area are becoming overgrown and in desperate need for proper
maintenance. Mr. Macintosh stated that
he has been in e-mail communications with the city’s Park and Recreation
Department, but there has been little or no response on his requests. He continued by stating that it was his
understanding that the park is scheduled to be a part of the
Chair stated that Commissioner Jarboe has worked with
Commissioner Jarboe stated that he had been working with Mr. Macintosh on his donation and understands that at the current time the park is somewhat in limbo. Commissioner Jarboe further stated that the money is in the Barracks Row budget to do what was planned, but the hang up is the transfer of ownership, which he hopes will be resolved soon. Additionally, Commissioner Jarboe stated that everyone must make sure that Barracks Row and other people have the money to take care of the on-going maintenance of the parks. It is Commissioner Jarboe’s understanding that Barracks Row will be responsible for the landscaping of the park, and that Barracks Row will have a joint venture agreement with the City to maintain the parks. Commissioner Jarboe went on to say that he was very confident that between the BID and Barracks Row the maintenance problems will be taken care of.
Mr. Macintosh stated that regarding the parking issue mentioned earlier, he was not sure exactly what the Commission could do, but it is a serious problem.
Commissioner Jarboe responded that this was an issue that Commissioner Hill has brought up for years about the parking being a major problem around the Potomac Metro stop specifically. Commissioner Jarboe stated that the question has been raised about the possibility of changing the zone parking sticker so that people in a certain radius of a metro stop would have a special zone sticker. He went on to say that parking on the Hill is a problem period.
Commissioner Hill stated that the problem is also that people who are coming to use the Metro and heading off to the airport or train station are leaving their cars for an extended period of time.
Voting Rights March – Ms. Simone Greene with the Mayor’s Office rose and stated that the Mayor wanted everyone to be aware that in conjunction with the Voting Rights March on April 16th, 3rd Street and Pennsylvania Avenue, NW, up to 14th Street, NW and Pennsylvania Avenue, NW, will be closed to accommodate the marchers, and the Metro will be operating on its regular schedule.
Community and Commission Announcements
Councilman Well’s Community Hour – Ms. Naomi Mitchell, Councilmember Tommy Wells’ Community Relations Organizer, announced that Councilman Wells will be holding a Community Hour the second Thursday of each month at the Channel Inn from 8:00 a.m. until 9:30 a.m. and he is inviting anyone interested in communicating with him to please come join him. Ms. Mitchell also announced that Councilman Wells has added a blog on his website (tommywells.org) and invited everyone in the community to share their comments and concerns with him on his blog.
H Street Community
Market – Ms. Karine Bouis-Towe, the Project Manager for H Street Community
Market, and her partner announced that they are in the planning process to open
the market sometime in 2008. H Street
Community Market is an organization of local neighbors working to establish a
cooperatively-owned grocery store on
The Market will be wholly-owned by the community. All neighbors will have access to market via household memberships. Members will receive a portion of the store’s profit based upon how much the member purchases annually. The Household membership will be $100.00.
The H Street Market does not have a permanent address at this time, but it anticipates it will have 8,000 sq. ft. of space and is in the process of locating such a location. For more information visit the website: www.hstcommunitymarket.org or call 202.547.7053.
PSA 105 –
Commissioner Ostergaard announced that PSA 105 holds their community meetings
on the first Thursday of each month. The
meeting is held at the
DC Voting Rights
March – Commissioner Russell announced that the DC Voting Rights March will
DC Department of Health – Health Disaster Preparedness
Mr. Opa Clegg was scheduled to appear, but Mr. Sean O’Donnell, Strategic National Stockpile (SNS) Coordinator, made the presentation.
Mr. O’Donnell provided the Commission and community with a brief overview of his organization. Mr. O’Donnell stated that his organization is part of the DC Department of Health, staff First Aid Centers at all events, emergency response, plan and conduct health events, and have a small staff of 26 people in their department.
Mr. O’Donnell stated that on
They are also seeking individuals to volunteer as “subjects” that will be processed through the site to allow them to evaluate their ability to provide mass vaccinations. Mr. O’Donnell provided everyone with a form to complete if they were interested in participating.
If you are interested in participating in this exercise and need more information, please contact Sharon Pellum at 202.671.0707 or by e-mail at: Sharon.firstname.lastname@example.org.
Mr. O’Donnell stated that the DC Department of Health is very interested in getting feedback from the community regarding their various programs and any concerns they may have.
Commissioner Jarboe asked Mr. O’Donnell if there was still a plan in place to utilize Reservation 13 (Hill East Waterfront) to quarantine people in the case of a disaster.
Mr. O’Donnell responded that a mass quarantine is no-longer a part of the plan. He explained that it would be more practical to isolate yourself at home rather than attempting to go to a mass isolation facility, where you would probably be exposed to more germs than being isolated at home. Mr. O’Donnell stated that they have come up with a plan for a public health supported isolation center, which would be for individuals who do not live in the area and can’t isolate at home because of they are traveling through the city.
Office of Zoning Commission – Commission overview and a discussion of “Matter-of Right” – Cliff Moy, Secretary to Board of Zoning Adjustment
Mr. Moy thanked the Commission for the opportunity to appear before it. Mr. Moy provided everyone with a brief overview of the Zoning Commission (ZC) and related agencies. Mr. Moy stated that the Zoning Commission’s duties are to provide general rules to the Board of Zoning Adjustment (BZA) to regulate the height and bulk, location, uses, and lot occupancy of buildings, and to divide the city into zoned districts to deal with health, safety and economic provisions of public services. Additionally, the ZC provides that: zoned districts be suitable to the character of the respective precincts and should encourage stability in districts and land values; ZC must hold a public hearing with at least 30 days notice; one cannot build a building without a permit, and a favorable vote of a full majority of the total membership is required, not just of those in attendance.
The Board of Zoning Adjustment (BZA) duties are to provide the day-to-day execution of the rules generated by the Zoning Commission (ZC) regarding the basic three areas: variances, special exceptions, and appeals from administrative decisions.
Mr. Moy stated that The Office of Zoning (OZ) is the administrative arm of the Zoning Commission and the Board of Zoning Adjustment. The Office of Zoning (OZ) receives and processes application for zoning changes or relief; attend meetings and hearings and provides follow-up draft decisions; coordinates the zoning process with the Office of Planning and other agencies.
Mr. Moy discussed what constituted variances and special exceptions. In a variance situation the BZA is authorized to vary or modify any part of the Zoning Regulations where, because of an exceptional situation, the strict application of the Zoning Regulations results in “exceptional practical difficulties” or exceptional and undue hardship upon the property owner. A special exception may be granted for a particular use of land or for a particular building. In general, a special exception is a conditioned permitted use in a particular zone district; that is, the use is permitted provided certain specific criteria are met.
Mr. Moy stated that enforcement of regulations is done by the Department of Consumer and Regulatory Affairs (DCRA), which consist of the Zoning Administrator (ZA). Mr. Moy stated that the ZA is responsible for administering and enforcing the DC Zoning Regulations, as well as the conditions of the Board of Zoning Adjustment and Zoning Commission orders. He went on to say that the Zoning Administrator is responsible for zoning code compliance and assuring the correct permit(s) and certificate (s) of occupancy have been obtained. Mr. Moy suggested that if there were questions they should be directed to DCRA at 202.442.4576 or via their website: www.dcra.dc.gov.
Mr. Moy stated that a matter-of-right is when there would be no involvement by the Zoning Commission or Board of Zoning Adjustment regarding the development of a property as long as the proposed changes meet all of the required dimension regulations. Mr. Moy stated that he always suggest to applicants that they get in writing whatever the Zoning Administrator has to say about their project.
Commissioner Olson asked Mr. Moy to explain a variance and a special exception.
Mr. Moy stated that a variance is a situation when strict application of the Zoning Regulations results in “exceptional practical difficulties or exceptional and undue hardship” upon a property owner. There are two types of variances; area variance and use variance. The area variance is needed when the owner wishes to make some changes to the physical structure or lot itself, and the property does not or will not comply with the Zoning Regulations in some respect. A use variance is needed when the owner wishes to use the property in a way that is not permitted in that zoning district under the Zoning Regulations. The granting of a variance relates only to the specific piece of property which is the subject of the application.
A special exception is a conditioned permitted use in a particular zone district; that is, the use is permitted provided certain specific criteria are met. Mr. Moy went on to say that a special exception is applied for where the owner wishes to institute a use that is pre-deemed compatible with the zoning regulations for that particular district, but which needs to be reviewed by the Board to ensure that certain negative impacts will not occur.
Mr. Moy invited the Commissioners and the audience to visit their website (www.dcoz.dc.gov) to obtain more information regarding The Office of Zoning and District of Columbia Municipal Regulations.
Commissioner Russell suggested that The Office of Zoning consider providing each new Commissioner with a CD with the various regulations on it, which would advance their understanding of the regulations.
Commissioner Green stated that she had visited their website, but found it not to be very user-friendly and suggested some changes be made.
Commissioner Campbell asked Mr. Moy for his contact information. Mr. Moy responded that his direct phone number is 202.727.0348 and his e-mail address is email@example.com, and he invited people to contact him when needed.
The Chair opened the floor for questions and comments from the Commissioners.
Commissioner Hill asked if in a matter-of-right could a person still build an extension on the back if the property will cutoff light and air to his immediate next door neighbor? Mr. Moy responded that in a general rule it is not allowed. He went on to say that there are guidelines in regulations that lay out the specifics of the rule. The application of the rule depends upon the actual circumstances of the case.
Commissioner Hill continued by asking what happens if an owner takes a single-family house and makies into 4 condos, includes another floor on top of the roof, and places an extension out back, blocking the light and air of the neighbor’s house?
Commissioner Jarboe responded that Commissioner Hill was asking about something that still falls within matter-of-right, so matter-of-right would not be a special exception. Therefore, there is nothing the community could do about the project as long as the property remains within their 60% lot occupancy.
The Chair asked if it was possible to appeal a matter-of-right ruling. That is, if something came before the Zoning Board that meets all of the zoning regulations, but there is a community outcry about a particular ruling. The Chair asked if the BZA can step in at all or can the Zoning Administrator to resolve the issue in an appeal process? Mr. Moy stated that it could be.
The Chair then asked if the Board of Zoning had approved something and the case met the definition of a special exception, but the ANC Commission offered proof that there were no permits involved and it was illegal construction to begin with, was there an appeal process for such a case?
Mr. Moy responded that there were two (2) approaches the Commission could use. First the Commission could go to through the DCRA grievance process. This suggestion generated several comments from Commissioners regarding their dissatisfaction with attempting to work through DCRA. Mr. Moy than suggested the second approach is that the Commission could file an appeal of the decision with the BZA.
To follow-up on Mr. Moy’s comments, Commissioner Jarboe stated that in a case similar to what the Chair had made reference to, the Commission was planning on doing an appeal to BZA for reconsideration of an earlier ruling. The Commissioner went on to say that he is aware that the Board ignores a lot of appeals to decisions by zoning administrators. However he wanted to know about an actual appeal to BZA itself for reconsideration saying that the Commission does not think BZA took all the appropriate evidence into account.
Mr. Moy responded that any party involved can file a motion for reconsideration after the order is issued. Mr. Moy stated that the window for filing a motion of reconsideration is 10-days after the order is issued. Commissioner Jarboe then asked if the Commission had automatic standing to make the filing. Mr. Moy responded that he was correct.
Mr. Randolph asked exactly when did the clock on the 10-day window start.
Mr. Moy responded that the clock starts the on the date that the issue is physically time stamped.
Commissioner Jarboe followed-up by stated that it was not the date that it was published in the DC Register, it was the date that it was stamped. Mr. Moy stated that he was correct. Commissioner Jarboe then stated that the problem is that the Commission may not necessarily know when it is issued because the way the mail is delivered it may be days before the Commissioner is aware of the ruling, which puts the Commission at a disadvantage. Mr. Moy responded by inviting the Commissioners to contact him directly with any questions Mr. Moy suggested that when the Commission made its filing for reconsideration and if the 10-day period had passed, he suggested that the Commission ask the Board to waive the 10-day rule and to contact him directly and he would work with Commission to address the issue.
Planning and Zoning Committee
The Chair turned the meeting over to Commissioner Campbell, Chair, Planning and Zoning Committee.
Commissioner Campbell made the following Committee Report:
BZA # 17592, 740 9th Street, S.E. Special exception to allow construction of a garage serving a SFD, not meeting lot occupancy requirements
Jennifer Fowler, Architect and Jeff & Susie Bradbury the owners were present. The owners are proposing a 30ft X 22 ft deep garage with a storage area on top. This would be a modified 2-story structure, 15 ft tall. The lot occupancy at present is 42% and with this structure it would increase to 63.9%.
The addition will not
adversely affect the light, air or privacy of neighbors to the north, south or
There are no concerns voiced by any members of the committee regarding this project. However, it is understood that BZA may consider this as a variance instead of a special exception owing to the fact that the proposed structure is free standing. Because of this possible change in the zoning regulations this may become a problem at some later date. As no other concerns exist the Committee recommends this project for approval to the full ANC.
Commissioner Campbell asked Ms. Fowler if there was anything new with the case.
Ms. Fowler responded that it had been requested at the Planning and Zoning Committee meeting that she provide the Commissioners with copies of the transcripts of the two-previous cases that had been reclassified by BZA from special exception to variances and she confirmed that she had provide the documents to Mr. Randolph.
Commissioner Garrison stated that he had reviewed both transcripts and it was his opinion that BZA made a tortured effort to stuff this 2 pound bag into a 1 pound jar. Commissioner Garrison went on to say that BZA made a big thing about the fact the owner did not have enough basement for proper storage, therefore he must need a garage. Thus he believed that Ms. Fowler was in a very odd situation unless she could come up with some way of arguing that this is a unique thing and special hardship on the owners.
The Chair stated that the case had come before the Commission as a special exception and in light of the BZA’s supposed desire to rule on it as a variance, she inquired from the Commissioners how they thought the Commission could deal with this case in either recommending (support) or not recommending (opposing) the case to BZA at this point.
Commissioner Jarboe stated that he read through the transcripts of the two cases Mr. Fowler had provided. He went on to say that in one, they actually referenced the ANC in saying that the Commission talked about a variance, but never really approved it. Commissioner Jarboe stated that he was willing to make the motion that the Commission approve this case as a variance, if necessary. Commissioner Jarboe further stated that it was his opinion that, while the Commission would opening a can of worms, it was going to have to deal with this eventually because BZA is now interpreting the regulations probably the way they should have done a longtime ago. This appears now to mean that a garage is a free standing structure, and the term “special exception” applies only to additions. Therefore all the garages the BZA has approved over the years would need a variance now to go over 60% lot occupancy if you are building a garage. Commissioner Jarboe agreed with what Commissioner Garrison said about the BZA in the two cases shared by Ms. Fowler in that the BZA seems to have really twisted itself to a find a way to justify the uniqueness test. In one case the Board said the case was unique because the property did not have a basement. In the other case the case was found to be unique because everybody else had a garage. Commissioner Jarboe then stated that the Commission has been reluctant to use the uniqueness test of “because it is like everybody else’s”, which stands the concept on its head. He continued by saying that he thinks there is a real problem if the BZA is going to start enforcing this requirement in this new way. It may be necessary for the ANC to recommend that the Zoning Commission take up an amendment that would have garages in an R-4 district qualify as a special exception, as long as the lot occupancy does not go over 70%. Commissioner Jarboe stated that he was willing to propose an amendment the effect that the Commission supports the case as a special exception and/or as a variance following the precedence of the BZA in cases 17573 and 17579.
Commissioner Garrison expressed concern about setting a bad precendent is the Commission were to adopt this novel definition for the “uniqueness” term. The Commission has been careful in the past to try to use a consistent approach when measuring the uniqueness of a project. Switching now to this much more flexible approach suggested by the BZA would require similar flexibility in other non-garage cases. Further, Commissioner Garrison pointed out that there wasn’t a definition of the term “garage” in the code. Indeed, one of the two BZA cases applying this new criteria was actually about a “shed”. He said he was supportive of Commissioner Jarboe’s idea of trying to help the applicant before the Commission at this meeting but he wanted to be clear that more information was needed before the Commission would be in a position to recommend anything to the Zoning Commission.
Commissioner Jarboe then stated that he would like to change his amendment to add the words “specifically concerning auxiliary structures and lot occupancy” Commissioner Jarboe went on to say that knows Commissioner Campbell has an issue in his neighborhood, but he does not think the issue is with an auxiliary structure.
Commissioner Campbell stated that it was not an auxiliary structure but it is under the same stipulation. The building in question is an ancillary structure, and it is a garage but because it does not have a roof, that changes the use if it. Commissioner Campbell went on to say that because it does not follow the height requirements (it is 12 feet tall), it does not follow the setback requirements, andthe alley is over 12 feet wide. So there are other issues related to this particular situation, but in the end it all does go against the lot occupancy limit.
Commissioner Jarboe then asked Commissioner Campbell if in his particular situation the property owner’s house and the garage were counted, would his lot occupancy be over 70%.? Commissioner Campbell responded that it would be. Commissioner Jarboe responded by saying in that case the Commission would not be setting a precedent in that the applicant would still need a variance. Commissioner Campbell added that he had found through DCRA that there is no statue-of-limitation on those structures and therefore DCRA can enforce teardown rules and rescind permits on those projects. Commissioner Jarboe followed up by stating that Commissioner Campbell’s case would not be affected by the amendment before the Commission.
Commissioner Olson stated she agrees with Commissioner Garrison in that the BZA’s change in practice disturbs her especially after recent criticism of ANC 6B for handing out variances left and right. The variance test is much higher than it is for a special exception and since this case has come before the Commission as a variance, she wanted to know if it would meet the variance test. Commissioner Olson went on to say that the Commission was dealing with this case in a manner trying not to set precedent, when in fact the Commission may be setting precedent and may end up negatively effecting the Commission in the future, if these cases do not meet the uniqueness and hardship tests they are meant to do under the variance test.
Commissioner Garrison stated that the Commission was trying to send a message to the BZA that the Commission clearly supports this case as a special exception but since BZA seems to have decided that this case must be viewed as a variance, the Commission will support granting relief in this one case. He went to say that he agreed with the chair’s point in that the Commission is not in a position to reach a conclusion on this regarding whether or not it is unique or a hardship based upon what the Commission has previously considered being tests of uniqueness and hardship.
Commissioner Campbell asked that since the case is coming before the Commission as a special exception, based upon the paperwork provided by BZA, why can’t the Commission approve it as a special exception and if during the interim the BZA decides to change the case to a variance, the Commission will have already approved it as a special exception and since there are already existing structures in the neighborhood, it becomes BZA problem. He went on to say that the Commission has only been asked to evaluate this case as a special exception and if BZA changes the ruling it will be incumbent on BZA to either go back and revisit this issue or change its rulings from a special exception to a variance.
Commissioner Jarboe then withdrew his amendment.
Commissioner Garrison stated that based upon the discussion by the Commission he suggested that a member of the Commission represent the Commission when this case comes before to board so that the Commission’s concerns are voiced.
Commissioner Jarboe suggested that at the next Planning and Zoning Committee meeting the Commissioners would address a possible petition to the Zoning Commission for a fix of this particular situation, in that garages in R-4 zones should be special exceptions if they fall within 60% of lot occupancy.
Commissioner Campbell stated that he was having on-going conversations with the interim Director of DCRA in an attempt to clarify the garage issue.
The Chair stated that she would like have a Commissioner appear before the Board on this matter. Commissioner Ostergaard volunteered to attend the board hearing to represent the Commission.
The Chair then stated that the matter had come before the Commission as a special exception and should be voted on as such.
Commissioner Ostergaard commented that the nature of the proposed garage was in keeping with the nature of the particular alley and he thinks it should be approved. Commissioner Ostergaard went on to say that the Commission needs to keep in mind that there are a number of neighbors who are looking at what was just recently built and this will continue to be an issue and will need to be resolved. Additionally, he stated that the trend toward two-story garages will continue because it provides for one more parked car off the street and additional storage space. Commissioner Ostergaard further stated that since he lives in the neighborhood he envisions many other neighbors wanting to add a garage to their property. In fact, he himself is looking at his property to see what he can do.
The Chair offered an amendment to make a small text change in the Committee’s recommendation to the last paragraph by adding at the end of the paragraph “as a special exception.” The motion was seconded by Commissioner Wright. The Chair asked if anyone was in opposition to the amendment and there were none.
The Chair then stated that this matter comes before the Commission as a recommendation from the Committee, which needs to motion or second. The Chair then asked all in favor of approving the Committee’s recommendation to raise their hands. The vote was unanimous (10-0).
The Chair then authorized Commission Ostergaard to attend the meeting to represent the Commission regarding this case.
ANC 6B wishes to express its gratitude to ANC 6A and the Office of Planning for all the hard work they have done in proposing a new approach for defining and differentiating among the various eating establishment categories that should be allowed in the DC zoning regulations. There is ample evidence that the need for clarification in the zoning regulation is necessary and that 6A has been instrumental in leading this revision effort, especially in identifying the different determining factors for “matter-of-right” establishments and those requiring a “special exception”.
The proposed amendment would eliminate the current definition of “fast food restaurant” and replace it with a more specific definition of “fast food establishment.” The new definition eliminates the ambiguous reliance on the size of the serving area and the self-certification of the breakdown between carry-out and on site consumption. According to the new definition:
Fast food establishment - a place of business where food is cooked on the premises and sold to customers for consumption and one of the following conditions apply:
(a) The premises include a drive-through;
(b) Customers pay for the food before it is consumed. This element is satisfied if the building permit plans depict a service counter without seating unless the applicant certifies that the intended principal use is for a restaurant or grocery and that the counter is part of a carry out service that is clearly subordinate to that principal use; or
(c) Food is served on/in anything other than non-disposable plates. This element is satisfied if the building permit plans do not depict a dishwasher or depict trash receptacles in public areas.
The amendment also creates a category of “prepared food shop’ to cover delicatessens, coffee shops and ice cream parlors. “Prepared food” is defined as assembled, but not cooked, on premise “This term includes such food items as sandwiches, wraps, and sushi.”
Of concern is that under the proposal “Prepared Food Shops” would be “matter-of-right” establishments as long as they have less than 12 seats. This seems to encourage the carry-out activities of such establishments and may discourage the addition of seats. The ANC would like to find a way to encourage such establishments to stress on site consumption rather than the type of carry-out activities associated with noise and litter.
One other concern was the elimination of the category of “cafeteria.” While the category of “prepared food establishment” captures some delicatessens, coffee shops and ice cream parlors, it does not cover cafes or lunch counters. Cafeterias should be added to the proposal with a clear and concise definition different from a restaurant or fast food establishment.
Finally the Committee notes that clear guidance will be needed as to the criteria for approving or denying an application for a special exception. The proposed amendment will likely have the effect of categorizing many more types of establishments as “fast food establishments.” However, the proposal does not change the current criteria under §733 of the Zoning regulations, which seem more relevant to the older definition of a fast food restaurant than to the nuances of the new category. In addition, there is no guidance given as to criteria for approving or denying a special exception application for a prepared food shop with more than 12 seats (the new proposed §712). Thus, the Committee believes that further analysis of §733 of the Zoning Regulations is needed before the proposal is approved. The ANC recommends that the current criteria under §733 be made discretionary to BZA as part of the special exception and that cafeterias be added.
The Committee recommends that the Commission support the Office of Planning in advancing the proposed amendments with the understanding that further classifications and distinctions will need to be made in order to eliminate the noted shortfalls.
Commissioner Jarboe stated that he was concerned about the 12-seat portion of the proposed amendment because if you have a coffee shop with more than 12 seats with this approach, instead of it being a matter-or-right, with the 13th seat they would have to get a special exception. Commissioner Jarboe voiced his concern that establishments like the coffee shop would not add any extra seats to avoid the trouble of getting a special exception. Currently there are a number of establishments with more than 13 seats in them and he fears most would not be present with their current number of seats if they had to go the special exception route. Commissioner Jarboe went on to say that he would be in favor of moving the threshold number of seats up to 20 instead of the proposed 12. Commissioner Jarboe continued by saying that he understood the intent of the Office of Planning and ANC 6A was to discourage as a matter-of-right places that have a lot of carryout. A place with a lot of seats would in fact be a larger establishment, and therefore it would have more volume. However, it is his sense that if an establishment had more seats more people would be eating there on premise than carrying out. Therefore you could end up with an all carryout establishment with no seats and all the litter, noise, traffic and trash associated with its operation, as being a matter-of-right, but the 14 seat coffee shop where people are staying there meaning less turnover and trash would have to get a special exception.
Commissioner Garrison mentioned that the seat discussion pertains to seating on the inside only. Commissioner Jarboe agreed and suggested that the Commission request that they, Zoning and ANC 6B, request that the number of seats be increased to 20, which would allow for the type of desired establishments currently in the area.
Commissioner Jarboe then discussed his concern about the §733 criteria for special exceptions associated with this amendment. Commissioner Jarboe stated that after the P&Z Committee discussion he reviewed §733 and found a number of things that would specifically prohibit a fast food restaurant by this definition. Commissioner Jarboe gave an example that Commissioner Campbell gave at the Committee meeting where if you had a restaurant that abuts an alley in a residential district, you have to build a 6-foot wall in the rear. You can not get a special exception to exempt you from the requirement to build the wall; you must build the wall. Commissioner Jarboe went on to say that there are a number of establishments on Capitol Hill in locations the Commission would want to have and would probably approve as a special exception that would not meet this requirement. Additionally, the establishment would have to build a 3-sided brick enclosure dumpster area. Commissioner Jarboe stated that several of the popular restaurants on the Hill would not be required to get a special exception, but would not allowed in the area period, which is the main concern regarding §733. Commissioner Jarboe added that there is another section in §733.5 that stated “shall not include a drive-thru.” Therefore if you’re in a C-2A you can not have a drive-through, period. Commissioner Jarboe suggested that the Commission request that the Zoning Commission take these things that are mandatory for restaurants in C-2A and authorize BZA to require them if necessary as part of the special exception process. Under the special exception process BZA would have to look at what the process for dealing with trash was and could require the establishment to put in a 3-sided brick enclosured dumpster area. This approach would not absolutely prohibit these things, but would bring the criteria into play as part of the special exception process. Commission Jarboe further stated that his major concern is that under the new rules that are a number of establishments in the area that would be classified as fast food restaurants and would have to come before the Commission for a special exception, but the Committee’s don’t want to be in a situation were they would not be allowed at all.
Commissioner Olson stated that she would definitely be in favor of a situation where the community is in a position to say aye or nay to BZA on an establishment being located in the area rather than just saying no to everything.
Commissioner Jarboe discussed the issue of whether food was cooked on premise and the relationship that would have to classifying the establishment as a fast food restaurant, such as Starbucks. There was discussion about various parts of the proposed special exception criteria that would eliminate several establishments that are welcomed and valued in the area not being allowed, which is not what everyone wants.
Commissioner Russell asked if Subway would be classified as a fast food restaurant under the new criteria. Commissioner Jarboe responded that it would and that is the problem.
Commissioner Jarboe commented that Commissioner Garrison at the P&Z Committee meeting stated it very well when he said that we were taking the ambiguity away from the Zoning Administrator and putting all the ambiguity on the ANCs and the BZA.
Commissioner Jarboe made the motion to amend the Committee Report by adding the following language at the end of the second to last paragraph “That the ANC recommends that the current criteria under §733 be made discretionary to BZA as part of the special exception.” The motion was seconded by Commissioner Campbell. The Chair then asked all in favor of the motion to raise their hands. The vote was unanimous (10-0).
Commissioner Olson made a friendly amendment that the criteria for the number of seats be increased from 12 to 18 for prepared food shops. The motion was seconded by Commissioner Glick. The Chair then asked all in favor of the motion to raise their hands. The vote was unanimous (10-0).
The Chair stated that the Committee Report comes to the Commission needing no second. The Chair then asked all in favor of the adopting the report as amended to raise their hand. The vote was unanimous (10-0).
Committee reports and announcements
There were none.
The Chair stated that based upon her research, she had found that business cards could be obtained for less than $100.00 per set. The she went on to say that she may be able to obtain them for $19.00, but she doubted it is possible. The Chair stated that because of the quality issue, she would like to ask the Commission to approve the expenditure of $500.00 total, $100.00 for each Commissioner, for up to 500 business cards each.
Commissioner Glick stated that he could not support spending $500.00 on business cards. The Chair responded that the cost was actually $100.00 per Commissioner. The Chair then asked if Commissioner Glick would prefer that Commissioner pay for their own business cards and if wanted to make a motion to that effect. Commissioner Glick responded that he believes less expensive cards can be obtained. The Chair explained that the business card is made of two-colors and is two-sided on high quality paper. She wants to maintain the look and quality of the cards that was previously established. The Chair stated that it is her intent to continue to investigate and if possible will obtain highly quality cards and the least expensive cost, hopefully less than $100.00 per Commissioner.
Commissioner Garrison advised the Commissioners that cost is a concern and the need to go outside the currently approved budget to make the purchase is also a concern.
Commissioner Campbell made the motion that the Commission authorize the Chair to spend up to $100.00 per Commissioner for a total of $500.00 and at the Chair discretion, purchased them for less, if possible, to do so. Commissioner Russell seconded the motion.
The Chair asked all in favor of the motion to raise their hands. The vote was 9-1-0.
Commissioner Hill asked who would be getting new business cards. The Chair stated that it would be Commissioners; Ostergaard, Green, Garrison, Russell, Campbell, and Glick.
Commissioner Jarboe stated that the number of Commissioners has increased to 6 at $100.00 each ($600.00), this will exceed the amount of money previously voted for approval, and as the Treasurer he needs the Commission to vote on an official dollar amount to be expended for the purchase of the business cards.
Commissioner Campbell made the motion that the Commission authorize the Chair to spend up to $100.00 per Commissioner for a total of $600.00 and at the Chair discretion, purchased them for less, if possible, to do so. Commissioner Olson seconded the motion.
The Chair asked all in favor of the motion to raise their hands. The vote was 6-2-2.
Quarterly Financial Report
The treasurer, Commissioner Jarboe reviewed the Quarterly
Financial Report that each Commissioner had been provided. Commissioner Jarboe stated that the
Commission had received its District allotment including the interest. He further stated that all of the items are
normal expenses, except for item seven, which is the last of the tax payment
problem with which the Commission has been dealing. Additionally, everything is running basically
on budget, but it should be noted that the Commission is spending more than it
is taking in and thus the Commission is in a deficit spending mode. Commissioner Jarboe went on to say that part
of the reasoning is that a lot of the office supplies get loaded up in this
particular quarter and lot of other one-time cost are loaded into the first of
the year. Commissioner Jarboe then
reminded the Commissioners that the Commission was maintaining and carrying
forward an unbudgeted cash balance because at some point the ANC will be
removed from the building when it is renovated and there is not guarantee we
will be able to return, even though the City is required by law to find the
Commission space or pay for the Commission’s rent. He went on to say that the former rarely
happens and the later has never happened.
Therefore the Commission will need money to find office space for the
time when the Commission is out of the building, and that assumes that the
Commission will be returning to the building (
Commission Jarboe moved that the Quarterly Financial Report be adopted. The motion was seconded by Commissioner Hill.
The Chair asked all in favor of the motion to raise their hands. The vote was unanimous (10-0).
Approval of Commission Minutes
The Chair stated that each Commissioner had been provided a copy of the February minutes prior to the meeting, which had been reviewed by Commissioner Garrison. The Chair asked if there were any comments or suggestions for the February minutes. There were none. Commissioner Glick made the motion to approve the February minutes. The motion was seconded by Commissioner Wright. The Chair then asked all in favor of approving the February minutes to raise their hands. The vote was unanimous (10-0),
There was not further business and Commissioner Hill made the motion that the meeting be adjourned until its next meeting date of May 8, 2007. The motion was seconded, and the vote was 10 to 0.
Prepared by Bert Randolph