Town Council Meeting

Town of Vienna Charles A. Robinson Jr. Town Hall 127 Center Street South Vienna VA, 22180 Meeting Minutes Town Council Meeting Wednesday, May 11, 2022 7:30 PM Charles A. Robinson, Jr. Town Hall, 127 Center Street, South Special Town Council meeting with a joint public hearing with the Planning Commission 1. Roll Call Town Council Council Member Chuck Anderson; Council Member Ray Brill; Council Member Nisha Patel; Council Member Steve Potter; Council Member Ed Somers; Council Member Howard Springsteen and Mayor Linda Colbert. Planning Commission Chairman Steve Kenney; David Miller; Keith Aimone; Sharon Baum; Jessica Plowgian and Jessica Ramakis 2. Public Hearings A. 22-3103 Joint Public Hearing with the Planning Commission on May 11, 2022 for Text Amendments Related to Outdoor Dining in Sections 18-72, 18-74, and 18-210. Mayor Colbert opened the public hearing at 7:30 PM with a review of the meeting protocol. Mike D’Orazio, Deputy Director, Planning Commission presented the Item for consideration as follows: Prior to the COVID-19 pandemic, the Town Code required a conditional use permit for outdoor dining, per Section 18-72, Section 18-74, and Section 18-210. Conditional use permits require a review by the Planning Commission and a decision by the Board of Zoning Appeals. A $1,500 fee is also associated with a conditional use permit. Additionally, per the current zoning ordinance, off-street parking spaces cannot be utilized for outdoor dining. On June 1, 2020, the Vienna Town Council approved an emergency ordinance to permit temporary waivers of Town Code regulations for outdoor commercial activity, specifically to assist businesses that were adversely affected by the ongoing COVID-19 pandemic. The Town Council approved several extensions of the emergency ordinance, with the last one to not be extended beyond six-months from the June 30, 2021 expiration of the Commonwealth of Virginia’s State of Emergency. From June 1, 2020 to Dec. 31, 2021, 22 restaurants received approval for temporary outdoor dining. Of those 22 restaurants, 13 utilized off-street parking spaces for outdoor dining space. In October 2021, staff observed a total of 58 off-street parking spaces being utilized. To address the ongoing need for outdoor dining and plan for the expiration of emergency ordinance, Town Council directed the Planning Commission to consider Town of Vienna Page 1 Printed on 6/8/2022 Town Council Meeting Meeting Minutes May 11, 2022 text amendments that would allow outdoor dining on a more permanent basis, without the need to receive a conditional use permit. The Planning Commission held a public hearing on Nov. 3, 2021 and voted 6-0 to recommend approval of the text amendments as presented to the Town Council. On Nov. 15, 2021, the Vienna Town Council held a public hearing on proposed amendments to the zoning ordinance related to the allowance of outdoor dining. Several residents and business owners provided comments during the hearing. In addition, Council received 100+ emails on the matter. After hearing concerns of noise and voicing other potential issues with outdoor dining, the Council voted to close the public hearing and continue the discussion to the Dec. 6, 2021 regular meeting, after holding a conference session on Nov. 30, 2021. At the Nov. 30, 2021 discussion a majority of councilmembers supported the idea of allowing restaurants currently with temporary permits for outdoor dining to continue operating under those permits for another six months past the emergency ordinance expiration (June 30, 2022), with a couple of additional conditions. The conditions include limiting the number of seats within off-street parking spaces and restricting the hours that outdoor dining can be occupied if the dining is within so many feet of residential properties. The Town Council adopted those changes on Dec. 6, 2021, and acknowledged the need to revisit outdoor dining prior to June 30, 2022. The Town Council now wishes to amend the zoning ordinance sections related to outdoor dining prior to the June 30, 2022 sunset date. Outdoor dining is regulated in Section 18-72, Section 18-74, and Section 18-210 of Chapter 18 of the Town Code. Staff notes that two of the biggest concerns with outdoor dining remain noise and parking. At the public hearing on Nov. 15, 2021, some residents expressed concerns about existing outdoor dining for nearby restaurants, specifically along Church Street. There were also concerns from Councilmembers about potential future conflicts between other restaurants and nearby residential neighborhoods. Concerns were also expressed about the number of parking spaces potentially being taken up by outdoor dining and the potential increase for demand with more outdoor seats. Staff has proposed amending Sections 18-72, 18-74, and 18-210 to allow different types outdoor dining for restaurants, which includes permanent outdoor seating outside a restaurant and outdoor seasonal seating in off-street parking spaces. Staff has proposed a number of conditions for these outdoor uses, including requiring a conditional use permit for permanent outdoor dining when more than 12 seats are proposed. Staff has also proposed prohibiting outdoor dining within 75 feet of a property zoned for residential uses. Additionally, the seasonal dining within off-street parking spaces would be limited from April 1 to Oct. 31. Staff has not proposed revisions to Section 18-87.1, which requires site plan approval through the Town Council for any outdoor seating proposed for a property developed under the Church Street Vision. Deputy Director D’Orazio reviewed specific changes and/or additions to the language including the most significant addition: Outdoor dining cannot be located within 75 feet of a residentially zoned property utilized for residential use. Mayor Colbert called on the first public speaker. Town of Vienna Page 2 Printed on 6/8/2022 Town Council Meeting Meeting Minutes May 11, 2022 Howard Uman, 114 Wilmar PL., NW opened his remarks stating his opposition to residentially adjacent outdoor dining, having been disturbed by the collateral noise for over two years. He is opposed to the use of buildings for purposes which they were not designed. He is opposed to the loss of parking spaces designated for Church Street patrons. He is opposed to having residential life sacrificed for the benefit of businesses. The business plan should not be built upon taking away citizen rights. Restaurants are generally doing very well; indoor dining has been restored. The restaurant meals tax has generated far more revenue for the Town than projected and, by the Town’s own projections, has been reforecasted for strong performance. Mr. Uman states having lived in his home since 2002 and notes never having a problem with noise, never having challenges with neighboring businesses, at least until residential outdoor dining. The resulting noise was tolerated when indoor dining was not an option and complaints were limited to ordinance violations. Even then however, these complaints were brushed aside and residents were told that the music would be turned down. Who would be blamed for calling the police to put a stop to the amplified music? That blame would fall on the residents, not the restaurant in violation of the ordinance. There have been five violations of the temporary ordinance, most recently on Monday, May 2, 2022. It is unacceptable that residents must defend themselves against repeated interference and violation of their rights as residential home owners. As properties are redeveloped, those properties should also be protected against negative quality of life impact. Mr. Uman stated support for the ordinance as written, but stressed nonsupport for a CUP in residentially adjacent locations. Council must be reminded of the challenges of mediating CUP disputes. It took over eighteen months of time and expense to resolve issues related to the hooka bar. It is time for the noise to stop and for residents to enjoy their backyards once again. Terry Ayotte, 114 Wilmar PL., NW stated support for outdoor dining in areas not close to residential properties. Now that it is clear there is a strong market for this amenity, it would appear that future development will include outdoor dining in the business plan. It is then especially important to design an ordinance that will not only meet the current needs of outdoor dining spaces but those of the future. Being proactive is a much better strategy than being reactive. This would also apply to the idea of a CUP for outdoor dining adjacent to residential properties. The noise will still be there regardless of the zoning regulations and will continue to lead to hard feelings and reports of noise issues, all which take up time from residents, police, businesses, Town Operate and customers. The current situation with 111 Church St., a building that could have been designed to accommodate outdoor dining but was not, continues. The proposed ordinance allows for outdoor dining but also protects residents from excessive noise. The purpose of business in Vienna is to support the needs of the residents, not the other way around. Residents should not be required to pay the price for business operations. Steve Kenney, Chairman, Planning Commission, asked both speakers if there might be room for compromise with regard to number of guests and/or distance from residential. The speakers responded that sit down dining has an especially significant noise factor and that currently they hear every noise generated. There exists a substantial difference between formal and informal dining. Amy Jones, 127 Wilmar PL., NW wished to speak in favor of the rights of homeowners. While she is a strong advocate for outdoor dining, she cannot support it within 75 feet of a residential neighborhood. Patti Esswein, 105 Wilmar PL., NW wished to speak in support of the Uman’s noting Town of Vienna Page 3 Printed on 6/8/2022 Town Council Meeting Meeting Minutes May 11, 2022 that they and others who have voiced complaint over the noise generated by Bazens and Blend have been accused of Nimbism. “If this were in your backyard you wouldn’t want it either”. While it is unclear if 75 feet will solve the problem, it is hoped that Council will consider the rights of homeowners to enjoy their property without disruption from commercial enterprise that wasn’t present prior to the COVID crisis. Vincent Howard, 110 Wilmar PL., NW expressed appreciation for the time and effort Council has expended to assure that all voices have been heard and that a satisfactory solution can be reached. Penny Oszak, 221 Nutley St. spoke in support of the Uman’s. She thanked everyone involved for the time and effort put forth to reach a resolution and appreciated acknowledgment that noise is impactful on quality of life. She stated support for a 75 Ft barrier between outdoor dining establishments and residential neighborhoods. With no additional speakers Mayor Colbert called for a motion to close the Public Hearing. Motion, Council Member Potter; second, Council Member Somers. Mayor Colbert recognized an additional speaker. Motion withdrawn by Council Member Potter. Mark Esswein, 105 Wilmar PL., NW reported that he has personally experienced the unacceptable noise in the Uman’s backyard. It is his belief that the emergency ordinance was a windfall, not an entitlement. He personally experienced a windfall during the same timeframe when he was allowed to work from home. Now however, as the cause has subsided, he is required to return to the office. The same can be applied to this situation. It is not appropriate that businesses take what was a windfall in the form of outdoor dining to the point of entitlement. Mayor Colbert called for a close to the Public Hearing at 7:58 PM. Council Member Potter; second, Council Member Somers. Motion passed unanimously. Chairman Kenney called for a vote for the motion to close the Public Hearing. Motion passed unanimously. A motion was made to recess Council at 8:00 PM. Motion, Council Member Somers; second, Council Member Springsteen. Motion passed unanimously. Planning Commission was called into session at 8:00 PM. Planning Commission reconvened into Council Chambers at 8:15 PM. Mayor Colbert reconvened the Town Council Meeting of May 11, 2022 at 8:15 PM. All Council were present. Mayor Colbert read aloud an email received from former Mayor Laurie DiRocco. She also noted receipt of an email from a resident requesting an additional hour for outdoor dining Friday-Sunday. The following recommendation was received from the Planning Commission: It was moved to recommend approval to Town Council of the outdoor dining text amendments to Sections 18-72, 18-74, and 18-210 as presented with modifications per discussion to require a staff review of establishments within 75 Ft. pf a residentially Town of Vienna Page 4 Printed on 6/8/2022 Town Council Meeting Meeting Minutes May 11, 2022 zoned property including requirements that alcohol may not be served and servers may not be present, nor shall there be more than eight seats closer than 60 Ft. from residential property and hours of operation shall conclude at 7:00 PM. In addition, the provision shall become effective 60 days after approval. Mayor Colbert opened the floor for comments from Council. The following provides a summary of those comments: • Concern expressed about the loss of parking spaces; suggest 5/6/7 solution (five days per week; six hours per day; seven consecutive months) with sunset clause after one year; • Suggest compromise to include restaurants with over twelve seats or within 75 Ft, of a residentially zones property must acquire a CUP; hours of operation would be 11:00 AM-8:00 PM Sunday – Thursday and 11:00 AM-9:00 PM Saturday and Sunday; Set up and breakdown must take place within designated hours of operation; • Business plan errors should not be a Council problem; • Space behind Bazens and Blend designed for parking not dining; • Application timeframe should be set at 60 days; • Concern that small coffee shops, etc. will be negatively affected by decision; • Despite current trial adjustments adopted on December 6, 2021, noise problems continue; • Proposed amendment would preclude restaurants at 111 Church St. from outdoor dining of any kind; • Details for revocation of permit have not been outlined; should outline specific parameters especially as a portion of the process will become administrative; • All sections of ordinance should tie back to issue of noise if that is to be a major criterion for granting CUP; • Suggest revision of entire noise ordinance in future; • Consider compromise on 75 Ft. distance from residential; One Vienna suggests support for all of Vienna, business and residential With no further discussion, Mayor Colbert called for a motion from the floor. It was moved to approve the outdoor dining text amendments to Sections 18-72, 18-74, and 18-210 as presented after finding the amendments further good zoning practices, and it was further moved to direct the Town Clerk to advertise the intent to adopt the ordinance on June 6, 2022. Motion, Council Member Somers; second, Council Member Anderson. Council Member Patel offered an amendment as follows: It was moved to modify the motion by modifying the text amendment in Sections 18-72; 18-74 and 18-218 to state that outdoor dining with more than twelve seats or within 75 Ft. of a residentially zoned property utilized for residential uses requires a CUP and will be subject to Article 21 of this Chapter and that outdoor dining located within 75 Ft. of this residentially zoned property utilized for residential uses is limited to twelve seats and hours of operation are limited to 11:00 AM-8:00 PM Sunday – Thursday and 11:00 AM-9:00 PM Friday and Saturday. Second, Council Member Anderson. Motion failed with four against, two in favor. Town of Vienna Page 5 Printed on 6/8/2022 Town Council Meeting Meeting Minutes May 11, 2022 With no further discussion, Mayor Colbert called for a vote on the original motion. Motion passed six in favor, one against. 3. Meeting Adjournment Mayor Colbert called for a motion to adjourn. Motion, Council Member Somers; second, Council Member Patel. Meeting adjourned at 9:30 PM. THE TOWN OF VIENNA IS COMMITTED TO FULL COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT STANDARDS. TRANSLATION SERVICES, ASSISTANCE OR ACCOMMODATION REQUESTS FROM PERSONS WITH DISABILITIES ARE TO BE REQUESTED NOT LESS THAN 3 WORKING DAYS BEFORE THE DAY OF THE EVENT. PLEASE CALL (703) 255-6304, OR 711 VIRGINIA RELAY SERVICE FOR THE HEARING IMPAIRED. Town of Vienna Page 6 Printed on 6/8/2022