Minutes

PLANNING COMMISSION
MINUTES

January 23, 2008


The Planning Commission met in regular session on Wednesday, January 23, 2008, at 8:00 PM in the Council Room of the Vienna Town Hall, 127 Center Street, South, Vienna, Virginia, with Laurie A. DiRocco, Chairwoman, presiding. The following members were present: Charles “Chuck” Anderson, Emil D. Attanasi, John Brunow, Edward H. Chase, George J. Creed, Melvin R. McCoy, Jr., David W. Miller, and William G. Womack, Jr. Also in attendance and representing the Town Staff were Gregory M. Hembree, Director of Planning and Zoning and Denise Rose Borgatti, Board Clerk.


COMMUNICATIONS FROM CITIZENS AND/OR COMMISSIONERS:

Chairwoman DiRocco stated that Elections of Officers was held before the meeting and that Mr. Brunow was elected Vice-Chairman and that she was elected as Chairwoman. Chairwoman DiRocco thanked Commissioner McCoy for his time served as Chairman for the Planning Commission saying that “he did a wonderful job”.

Chairwoman DiRocco said that the Commission will hear Item No. 2 first there being no objection. There was none.

ITEM NO. 2:

Recommendation to the Board of Zoning Appeals on a conditional use permit for outdoor seating associated with Church Street Cellars, as wine/gourmet retail store located at 111 Church Street, NW, Suite 103, and within the C-1B, Pedestrian Commercial zone. Filed by Charles Mark Heider and Doug D’ Alexander, agents for Wedderburn Homes, LC, owner.

Mark Heider, owner of Church Street Cellars and Brian Nestor, Attorney, were present on behalf of the application.

Mr. Nestor said Church Street has come along nicely and would like to see it continue to advance. Mr. Nestor said he wanted to address a couple of issues mentioned in the staff report - one is identifying Church Street Cellars as a wine and gourmet retail store wanting to make clear there is a business license for a restaurant, not just a retail store- food is served. Mr. Nestor said that they are asking for at least eighteen (18) seats outside and said there is more than adequate parking. When the building was built it was their understanding that there was a 1:12 parking to occupancy ratio. Currently there are four (4) parking spaces allocated to Church Street Cellars which would give them forty-eight (48) seats. Mr. Nestor said there is an additional seventeen (17) parking spaces for the building which has parking spaces built underneath the building. Mr. Nestor said they pay a premium for this location and have to help subsidize the parking. Mr. Nestor said there is mention of a report of a handicapped access issue in the staff report and said the door mentioned in the report is not a handicapped access door but is a staircase and said the proposed outdoor seats will not be near the handicapped ramp.

Mr. Nestor said that the staff report reads there are already seats outside the business and said Mr. Heider is not violating the Town Code and said the table is there for people who smoke at Bazin’s and no alcohol is being served out there. Mr. Heider said the table was there from Viva Vienna and has stayed there to allow people from his store and Bazin’s to smoke. Mr. Heider said he cannot serve alcohol until the Planning Commission approves the Conditional Use Permit (CUP) and said it is the ABC Board who would have to give him permission to have tables outside to serve alcohol. Mr. Heider explained where the area is that he would put the proposed tables and chairs. Mr. Heider submitted into the record a letter from Wedderburn Homes “that stipulates their position on parking”. Mr. Heider said he “clearly” has a business license that states he is a restaurant since June, 2007 and that he has plans from Fairfax County that show he is a restaurant. Mr. Heider said in order for him to sell wine he has to sell food; so he put the wine vending machines in his store which serves wine by the 1 oz., ˝ glass and full glass of wine and in order for him to sell 1oz. of wine he has to sell $2,000.00 worth of food each month required by Virginia ABC Board. Mr. Heider said that the stamped plans he has for the store shows he can have forty-eight (48) person occupancy which shows twelve (12) seats.

Mr. Nestor said that Mr. Heider is trying to do well in Vienna and has brought in some good business and tax base to Vienna and said the Church Street is an ideal location for outdoor seating. Mr. Nestor said unlike Chipotle’s or Starbucks or Noodles and Company which has outdoor seating on a main road that does not provide additional parking; this building has forty-four (44) total parking spaces with seventeen (17) additional parking spaces that were built based on discussion with the Director of Planning and Zoning.

Mr. McCoy asked where the disconnect was regarding the parking. Mr. Nestor said that he thinks that when the building was built there was a negotiation on how much parking would be required for occupancy and the builders were granted a 1:12 ratio for parking.

Mr. Heider said he always wanted to make the space what it is currently, a small Bistro to enjoy some wine. The reason it did not start off that way is because the vending wine machines were not legal in Virginia at the time. Once he got the machines he approached the ABC Board ; they said he had to build a kitchen to serve “a substantial meal of the day”. Mr. Heider said the reason he invested in the kitchen is because he wanted to have the wine vending machines. The wine vending machines allow one to try wines of varying style and regions. Mr. Heider said the wine vending machines are a selling point for him and generate money for him. Mr. Heider also said that he wanted to be located near the bike path to bring people in from the bike path, saying that he know countless people who bicycle to Ashburn, Virginia and go to Dominion Brewery and said that he wants people to come from Washington DC and bike to Vienna and come to his store and use his machines and if it is nice outside they will want to sit outside. Mr. McCoy said that he raised the question of parking because parking is an issue but senses from the staff report by Mr. Hembree that parking is deficient in that area.

Mr. Miller said it is not for the Planning Commission to decide whether or not this establishment is a restaurant and said that issue needs to be resolved prior to the Planning Commission consideration for a CUP - if it is determined that this is not a restaurant than a CUP cannot be issued.

Mr. Hembree said that apparently Liz King, Business License Office, issued to Mr. Heider a restaurant business license, however, she did that in error. Mr. Hembree said there is provision in the Town Code, Section 8-12, which says, “The Town Treasurer shall not issue a license for conducting any business, profession, trade or occupation at a location where the conduct is such business, profession, trade or occupation is prohibited by the Zoning regulations of the Town and will be subject to verification to ascertain compliance with the zoning regulations and failure to comply shall be cause for immediate revocation by the Town Treasurer.” Mr. Hembree said that step did not happen and has been brought to the attention of Liz King. Mr. Hembree said that Church Street Cellars has an occupancy permit (#11704) that was for a wine gourmet retail establishment, not a restaurant. Mr. Nestor said that Mr. Heider is part a wine store, part a restaurant and part retail. Mr. Hembree said in his estimation there is more than just a restaurant here and he has made the determination that the provision that would be strictly for a restaurant that permits outdoor seating by site plan review, he did not have the authority as the Zoning Administrator to make that “Carte Blanche” interpretation based on the fact that we had more than just a restaurant use going on in this location and that is why he determined that the applicant needed to go through the CUP process.

Mr. Hembree addressed the parking issues raised by Mr. McCoy. Mr. Hembree said there is a parking requirement in the Town Code that says all parking shall be provided a net ratio of 1 space per 600 square feet of total floor area. Mr. Hembree said there is a use component that goes along with that which is not addressed in Section 18-87.5 of the Town Code. Mr. Hembree said that in conjunction with negotiations on Bazin’s, he determined that because there was sufficient parking (18 additional parking spaces) at 111 Church Street, NW, he would permit a full-scale restaurant with the eighty-four (84) parking spaces, but it was not based on seven (7) on-site parking spaces, but rather twenty-one (21) parking spaces adding the additional available parking spaces. Mr. Hembree said there has been a determination subsequent to that as well at 101 Church Street, NW, that one user can be a restaurant and that is based on one (1) parking space for every four (4) seats which would give them a maximum of twenty-four (24) seats in that facility, which is one restaurant (Nielson’s Frozen Custard) for that building.

Mr. Hembree noted that the Planning Commission has been formally commissioned by the Mayor and Town Council to evaluate the parking standards on Church Street, NW and Church Street, NE. As a result there may be some change in the parking criteria. Mr. Hembree in terms of proposed restaurant type uses, when he evaluates these uses, in his role as Zoning Administrator he is trying to make sure that each tenant space stands by itself. Mr. Hembree said that the Occupancy permit issued in May, 2007, it was determined to allow twelve (12) seats maximum. Mr. Hembree said as mentioned earlier the business license office cannot issue a business license unless they have verified the zoning is going to permit the proposed use in that area and in this case that did not happen; the business license was issued in error from the business license office.

Mr. Nestor said that as a result of the business license’s error, they have invested in a kitchen and the equipment for dispensing the wine. Mr. Nestor said that Mr. Heider has set up a business, is local and is doing exactly what “we” want for Church Street. Mr. Nestor said the Developer that built this building built additional parking to accommodate the concerns “we” have about Church Street. Mr. Nestor said to not get hung up on whether this was or was not issued properly. Mr. Nestor said the staff report is in error and said that as a resident of the Town this is a development that “we” should be promoting.

Mr. Hembree said the business licenses are going to be reissued in March, 2008 and will not be reissued for a restaurant unless this issue has been resolved. Chairwoman DiRocco asked why this issue would have to be resolved first prior to that issue. Mr. Hembree said he is on the enforcement side - Mr. Hembree said he had talked to the Liz King and she said that, “while she cannot do anything about it now, she will be reissuing the licenses in a month and at that time we’ll pull that approval”. Chairwoman DiRocco said that it seems to her that the Commission would be approving something only for a month and than have to re-look at this issue based on whatever type of license the applicant has been given at that time. Chairwoman DiRocco asked Mr. Hembree if it would be in the applicant’s best interest to wait until that time so the Planning Commission is not issuing something for only a month. Mr. Hembree said that he thought that the business license is based on the Certificate of Occupancy and that is part of this CUP process and said that procedurally the Commission needs to go through this piece before they can issue the business license and do it in full compliance with the Town Code.

Mr Womack asked if it was a given that the applicant’s business license will be modified and changed. Mr. Hembree said it will have to be because he has not issued a Certificate of Occupancy for a restaurant which does not comply with Section 8-12 of the Town Code and the business license should have been revoked immediately upon notification to the business license office.

Mr. Attanasi said that the Planning Commission needs the Town Attorney’s opinion. Mr. Attanasi said that the issue bothering him is that the applicant submitted site plans and elevation plans that were not done to scale and with no dimensions on them which is unacceptable. Mr. Attanasi said regarding the issue of the Certificate of Occupancy; the Town Code has a CUP for outdoor seating and that is what the Planning Commission is supposed to be considering, not the indoor seating, but said the indoor seating has to do with the use of the whole establishment. Mr. Attanasi asked whatever the Planning Commission does here, will it affect the indoor seating. Mr. Hembree said that is one way to look at it. Mr. Hembree said he had a conversation off-line with Mr. Creed and they recalled Chipotle’s and Noodles - which had came before the Planning Commission for outdoor seating request through a CUP, the Planning Commission decided on a specific number of seats for the entirety of the use, both inside and outdoor seating. Mr. Hembree said the Planning Commission has the authority in looking at the outdoor portion of the seating to evaluate how it might affect the entirety of the business. Mr. Hembree said there is time to get an interpretation from the Town Attorney.

Mr. Attanasi said he would like to see documentation regarding the issue of having to comply with serving food and the dispensing wine from the Health Department. Mr. Heider said that he would. Mr. Heider said he has to be a restaurant in order to operate, Mr. Heider said he went to Liz King with his Health Department license and she gave him a business license.

Mr. Hembree asked the Clerk if she had anything to contribute regarding issuance of occupancy. Miss Borgatti told the Commission how the whole issue of the occupancy permit for Church Street Cellars came up saying that she had initially spoken to Liz King, business license officer who on occasion walks through the Town to see what businesses are operating who may not have gotten a business license yet. And when she (Liz King) was walking on Church Street, NW and went into Church Street Cellars, she said that food was being served there with seats and tables, she talked to Mr. Heider and he came in to apply for a new business license to operate on a restaurant based on what she had seen. Miss Borgatti said that Liz King had also said that she had spoken to someone from the ABC Board and based on both of those things issued the business license assuming that Planning and Zoning had issued an occupancy permit to Church Street Cellars as a restaurant and not as a wine gourmet/retail as was issued.

Mr. Miller wanted to make a motion to table this item until the issue of whether this establishment is a restaurant or not and is not prepared to have any more discussion on this. Mr. Hembree asked if Mr. Miller wanted a Zoning Administrators interpretation of that based on discussion with the Town Attorney to which Mr. Miller replied yes. Chairwoman DiRocco asked Mr. Miller if he wanted to require the applicant to provide scale plans and drawings as requested by Mr. Attanasi. Mr. Miller said if the applicant wants to do that it would be up to them.





It was moved to table Item No. 2 upon an interpretation from the Zoning Administrator based on discussion with the Town Attorney.

Motion: Miller
Second: Anderson

Discussion:

Mr. Creed said that he thought the Commission should go through and discuss the issues to see what needs to be provided to make an evaluation. Mr. Creed mentioned the memorandum from Wedderburn Homes on the parking evaluation and did not know if they were correct. Mr. Creed said that when he stopped by Church Street Cellars the applicant said that there were twelve (12) seats and four (4) stools and when he counts them there are thirty (30) seats and than eighteen (18) outside and does not think that number of seats will fill the parking for what the parking actually allows.

Carried: 8-1

Voting nay: Brunow


ITEM NO: 1:

Recommendation to the Mayor and Town Council on a proposed amendment to the current Comprehensive Plan by revising Map # FCF-1, Encouraged Locations for Telecommunications Facilities and by adding three Town-owned properties thereto, and amending both the cover sheet and the last sentence on page 74 of the Comprehensive Plan document.


Mr. Hembree said these proposed revisions reflect the directive of the Mayor and Town Council to include the Town’s three (3) water storage tanks within those areas encouraged for the establishment of telecommunications facilities. Mr. Hembree said the revision of the map is the more important element of the two and said it is necessary to amend the last sentence in the “Future Community Facilities and Services Plan” section of the plan to “except” those three parcels from the overall language that strongly discourages their establishment in the residential zones. Mr. Hembree said that over the years the Town has received lots of requests for cell sites in the area close or near to I-66 in the residential zones. It was the opinion of Mr. Hembree that one of the location requests that will be the first to show up to the Planning Commission and the BZA would be the water tower at Frederick Street and Tapawingo Road, SW.

Mr. Attanasi asked if the properties were posted for the public hearing. Mr. Hembree said no saying it is just for the general Comprehensive Plan. Mr. Hembree said if they actually went through the CUP process the properties would be posted and notification letters would be sent out.

Mr. Creed said that he hoped that the Town would require some type of screening to screen the antenna. Mr. Hembree said that could be part of the public review process.

There was noone to speak either for or against the proposed application.

Mr. Brunow asked if there was any thought that money to be made in the possible rental of Town facilities. Mr. Hembree replied yes. Mr. Brunow asked if there was an estimate to what the money would be. Mr. Hembree replied no. Mr. Brunow asked if there was any interest being expressed by telecommunication companies. Mr. Hembree said he thought there would be. Mr. Brunow asked what costs and responsibilities would there be potentially. Mr. Hembree said one of the things the Town has to do is to make sure the water towers are structurally capable of handling the additional weight attached to them and how the antennas would be attached to the water tower. Mr. Brunow asked if this would result in additional inspections necessary for the water towers themselves on an ongoing basis. Mr. Hembree said that if it does, they would make sure it is on the part of the applicant for them to institute such a program in conjunction with their installation and it would require additional work on the part of the Water and Sewer Department.

Mr. Miller asked if the Town would be the applicant along with the requesting cellular company. Mr. Hembree replied yes.

Mr. Anderson asked, what if the Commission was to approve the proposed language and suppose their was a contentious hearing in a year from now, and the Commission decided they did not want that telecommunication tower put in that place - does the fact that the Town passed this commit them in any way legally. Mr. Hembree said did Mr. Anderson mean in terms of some type of legal action based on a denial of a CUP application. Mr. Anderson said it sounded to him that they are suggesting that these are approved sites and if they were to turn one down than later on does that provide a legal basis for someone appealing the decision.
Mr. Miller said this proposed amendment is just about whether they want to approve certain parts of the Town to have cellular towers, nothing else. Mr. Hembree concurred. And in response to Mr. Anderson’s question, Mr. Hembree said that would require a legal opinion from the Town Attorney.

Mr. Womack asked if it was a valid argument in that those three (3) water towers are already covered under this by Town-owned property by lease agreement with the Town. Mr. Hembree said the additional language is necessary but mostly the revision of the map needs to be amended because they are not shown currently on the map as encouraged locations for telecommunication facilities. Mr. Womack asked why citing telecommunications facilities in a residential area is strongly discouraged. Mr. Hembree said because from a planning and zoning standpoint you introduce certain uses and said not all uses are permissible or desired next to certain other uses.

Mr. Creed asked if there could be additional ancillary buildings down around the base. Mr. Hembree replied yes.

Mr. Womack asked if the rationale for allowing these telecommunication facilities would be allowed in an area otherwise where they would not be and from the explanation given by Mr. Hembree earlier, it seems that the big structures have already been built thus you would not be changing the intensity of use on that space, therefore this is not the same if there were a field and all of a sudden you are going to build a tower. Mr. Hembree said that is correct. Mr. Womack asked if the additional facilities and infrastructure necessary to have a wireless telecommunication facility at these three (3) spaces increase the intensity of use in one’s perspective. Mr. Hembree said he would have to evaluate that on a case by case basis. Mr. Hembree said having the water tower in that location fulfills the visual aspect and did not think that would be any changes in terms of a visual.

Mr Creed said he was concerned about having the maintenance building that would be needed by the cellular companies and having several at the one site and questioned how many buildings would there have to be that would surround the water tower. Mr Creed asked if there could be a way to have just one building for the various cellular companies. Mr Hembree said that having one building could be a consideration as part of the CUP.

Mr. Miller asked if cellar towers have been put on water towers in other places. Mr. Hembree replied yes.


It was moved to close the public hearing.

Motion: Brunow
Second: Chase

Discussion:

Mr. Attanasi said that since this deals with a change in the Comprehensive Plan and in his opinion is major, suggested leaving the public hearing open to give people an opportunity to speak.

Mr. Miller said although it is not required, would it be possible to post the properties to let people know who live in that area. Mr. Hembree said they would post the properties.

Mr. Brunow said the Planning Commission should not authorize a change to the Comprehensive Plan because there does not seem to be an overriding reason to do that. Mr. Brunow said that someone at some point suggested to Town Administration that there would be money available if the facilities were made available to a cellular phone provider, but said that is not the case this evening and is not comfortable about making the change without more details available to this Commission.

Mr. Chase said that it is difficult finding spots in the Town to site the towers and they have always been looking for additional places to put them, while although the Town may be gaining money he did not think that was the only reason that these sites are under consideration because the carriers have trouble getting the towers in the place where the reception is improved and no gaps in coverage.

Motion Fails

Voting Nay: Anderson, Attanasi, Chase, Creed, DiRocco, McCoy, Miller, Womack
Voting Aye: Brunow


It was moved to continue the public hearing to February 13, 2008.

Motion: Attanasi
Second: Miller
Carried: 9-0


It was moved to approve the minutes of November 14, 2007 with minor corrections.

Motion: Chase
Second: McCoy
Carried: 6-0-3

Abstain: Creed, DiRocco, Miller

It was moved to adjourn at 9:14 PM.

Motion: Chase
Second: McCoy
Carried: 9-0


Respectfully Submitted

Denise Rose Borgatti
Board Clerk

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