ARLINGTON COUNTY, VIRGINIA. County Board Agenda Item Meeting of March 17, 2018

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1 ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of March 17, 2018 DATE: March 14, 2018 SUBJECTS: A. U USE PERMIT for an outdoor cafe for Westover Market; located at 5863 Washington Blvd. (RPC# , -013). B. U USE PERMIT AMENDMENT for live entertainment for Westover Market; located at 5863 Washington Blvd. (RPC# , -013). Applicant: Westover Market By: William B. Lawson, Jr. Attorney/Agent 6045 Wilson Blvd., #100 Arlington, Virginia C.M. RECOMMENDATION: A. Approve the use permit for an outdoor café, subject to the proposed conditions of the staff report and with a County Board review in seven (7) months (October 2018). B. Approve the use permit amendment for live entertainment, subject to revised Conditions #1, #2, #6, #7, #8 (a.), #9, #10 (a. and b.), 11, and 13, with a County Board review in seven (7) months (October 2018). County Manager: ##### County Attorney: ***** Staff: Adam Watson, DCPHD, Planning Division Nicole Boling, DCPHD, Planning Division Dennis Sellin, DES, Transportation Division 18.

2 ISSUES: This proposal includes two (2) requests: a new use permit for an outdoor café with a maximum of up to 102 seats, and a use permit amendment to modify approved use permit conditions for live entertainment at Westover Market, located at 5863 Washington Blvd. The applicant s request includes increasing the number of outdoor café seats, increasing the number of days with outdoor live entertainment, modifying the hours permitted for piped-in music, and decreasing the number of independent noise tests. Staff is not supportive of the applicant s request to decrease the number of independent noise tests. Staff is supportive of the applicant s request to modify the piped-in music hours on the outdoor café; albeit only to hours stipulated under Arlington County Zoning Ordinance (ACZO) A.7, and not beyond, as the applicant requested. Staff is not supportive of the applicant s request to modify the permitted hours of outdoor live entertainment and amplification given the potential for noise disturbances on additional days. In February 2018, the Fire Marshal issued a Notice of Violation regarding the placement of five (5) wood-burning fire pits (portable outdoor fireplaces) on the outdoor café. Under the Virginia Statewide Fire Prevention Code, operation of these fire pits is not permitted within 15 feet of a building or combustible material (trees, wood fencing, wood furniture, etc.); therefore, staff recommends a condition (Condition #5) of the outdoor café prohibiting portable outdoor fireplaces. In February and March 2018, staff received s and phone calls from several nearby property owners and residents regarding concerns about noise and loud music emanating from the outdoor café late in the evening, the applicant s lack of responsiveness to neighbors concerns about noise, and County enforcement of noise levels and use permit conditions after business hours. Some of the concerned residents allege violations of the existing use permit conditions; however, to date, Zoning Enforcement and Code Enforcement reported no documented violations since the previous County Board hearing on this item in April SUMMARY: The applicant is requesting a new use permit for an outdoor café (U ) and a use permit amendment to modify approved use permit conditions for live entertainment (U ) at Westover Market, located at 5863 Washington Blvd. The proposal includes: an outdoor café with a maximum seating capacity of up to 102 seats, modifying ACZO A.8 to permit a greater number of outdoor seats than indoor seats. In addition, the applicant requests a modification of ACZO A.7, so that the piped-in music shall comply with the noise ordinance and cease at the close of business hours. The second part of the request includes modifying the days/hours of outdoor live entertainment, permitting amplification/electronic instruments on a greater number of days, and reducing the number of required independent noise tests stipulated in the use permit conditions. BACKGROUND: The applicant operates a by-right outdoor café as an accessory use to its restaurant, and holds a use permit for live entertainment that was originally approved in In April 2017, the County Board approved a live entertainment use permit amendment for Westover Market. However, during the review of the application, both the Police Department and Zoning Enforcement staff observed multiple use permit violations. On April 26, 2017, Zoning Enforcement staff issued a Notice of Violation (ZCE170058) citing, among other things, the presence of over 50 seats on the by-right outdoor café at Westover Market (only 29 seats were permitted outdoors). At the time, the ACZO required that outdoor cafes (not governed by a site plan) have fewer seats outdoors than indoors a requirement that the County Board did not have the authority to modify. Following a Board of Zoning Appeals (BZA) hearing in October 2017, U and U

3 at which the BZA affirmed and upheld the Zoning Notice of Violation, the applicant removed the excess seating on the outdoor café to conform with ACZO and use permit conditions. In May 2017, the County Board directed the County Manager to undertake a process to revisit and revise the ACZO as it related to outdoor seating specifically, to provide more flexibility and equity between establishments governed by site plans and those governed by use permits. In November 2017, the County Board adopted a Zoning Ordinance Amendment (ZOA) giving the County Board authority to modify certain standards for outdoor cafes on private property by use permit (as allowed by site plan), and clarifying which standards for outdoor cafes on private property may be modified by use permit or by site plan. Under the revised ACZO, two (2) such modifiable standards are A.7 and A.8, which pertain to the hours for sound, audio and video entertainment on outdoor cafes, and the number of seats permitted on outdoor cafés, respectively. In October 2017, staff conducted the scheduled administrative review of the live entertainment use permit. The applicant was issued a verbal warning on October 31, 2017 by Zoning Enforcement for failure to deliver the required noise tests (Condition #3); however, a Violation Notice was not issued, as the applicant subsequently complied with the condition. No other documented violations were reported by County agencies or Virginia ABC. In December 2017, the applicant filed a new use permit (U ) for an outdoor café, specifically requesting that the County Board grant modifications to the A.7 and A.8 standards, to allow for expanded seating on the outdoor café. Westover Market also filed a separate application to amend the existing live entertainment use permit (U ), requesting revisions to the approved conditions. In February 2018, the County Board adopted a resolution to authorize advertisement of a public hearing On the County Board s Own Motion to consider a new use permit for an outdoor café and a use permit amendment for live entertainment for Westover Market at the March 17, 2018, County Board meeting. This authorization was required because the Arlington County Zoning Ordinance (ACZO ) prohibits consideration of similar use permit applications for the same lot within 360 days from its last County Board consideration, unless the County Board brings a use permit on its own motion. The County Board last considered a use permit amendment for live entertainment for Westover Market on April 22, Therefore, the request to advertise (RTA) was required for the applicant s requests to be heard by the County Board at the March 2018 County Board meeting. U and U

4 Figure 1: Location of Westover Market (5863 Washington Blvd.) Outdoor café/beer garden Westover Market 5863 Washington Blvd. N Source: Pictometry DISCUSSION: The following provides more information on the applicant s proposal and staff s assessment thereof. PROPOSED USE: Outdoor Café: There are 28 seats in the existing by-right outdoor café. The applicant requests a use permit for an outdoor café (U ) with a maximum seating capacity of up to 102 seats; modifying ACZO A.8 to permit a greater number of outdoor seats than indoor seats. The current Certificate of Occupancy permits a total of 30 seats inside of the restaurant at any given time. In addition, the applicant requests a modification of ACZO A.7, so that the piped-in music shall comply with the noise ordinance and cease at the close of business hours. Live Entertainment: The applicant also requests an amendment to its existing use permit for live entertainment (U ). This request includes modifying the days/hours of outdoor live entertainment, permitting amplification/electronic instruments on a greater number of days, and reducing the number of required independent noise tests stipulated in the use permit conditions. Currently, the existing live entertainment use permit (U ) contains conditions applying both to live entertainment and the by-right outdoor café. The following table (Table 1) summarizes and compares the existing and proposed regulations: U and U

5 Table 1: Existing Regulations (U ) and Applicant s Proposed Regulations Feature Existing Regulation Applicant s Proposed Regulation Number of seats 29 (Condition #10.a) Up to 102 (outdoor café) Sound/audio/video hours (outdoor café) Outdoor live entertainment days/hours Outdoor amplified instruments (live entertainment) Independent noise tests ASSESSMENT: Radio, recorded, or pipedin music shall not be played in the outdoor café/beer Garden on evenings (6 p.m. to closing time) that live music is not permitted, and during evening hours may only be played during permitted live entertainment hours of operation. (Condition #13) Permitted only from April 1 to October 31 three days a week: on Wednesdays from 6 p.m. to 8 p.m., Fridays from 6 p.m. to 10 p.m., and Saturdays from 5 p.m. to 9 p.m. (Condition #8.a) Permitted only Fridays and Saturdays (Condition #8.a) There shall be a minimum of four (4) tests between April and October. (Condition #6) U and U Piped-in music shall comply with the noise ordinance and cease at the close of business hours. Permitted only from April 1 to October 31: on Wednesdays from 6 p.m. to 8 p.m., Thursdays from 6 p.m. to 9 p.m., Fridays from 6 p.m. to 10 p.m., Saturdays from 5 p.m. to 9 p.m., and Sundays from 5 p.m. to 9 p.m. only when the following Monday is a federal holiday. Permitted Wednesday through Sunday There shall be a minimum of two (2) tests between April and October. CPHD, Planning: The Fire Marshal s Office issued the applicant a Notice of Violation on February 5, 2018 for having non-compliant fire pits on the outdoor café, which are classified as portable outdoor fireplaces under the Virginia State Fire Prevention Code (VSFPC). The applicant subsequently requested a Code Modification from the Fire Marshal; however, the Fire Marshal denied the request given the placement-requirements of the VSFPC and the number of combustible objects in the café area; there is not enough space in outdoor café to safely place the fire pits. Given the Fire Marshal s assessment, staff recommends that portable outdoor fireplaces, as defined in the VSFPC, be prohibited on the outdoor café (Condition #5 (U )). This does not preclude the applicant from using portable heaters on the outdoor café that comply with County and State code. To date, no other documented issues or violations of the use permit conditions or State regulations were reported by County agencies or the Virginia Alcoholic Beverage Control (ABC) Board since the applicant complied with the October 2017 BZA ruling. The Police Department reported three (3) calls for service to the establishment since May 2017; the calls were for loud

6 noise, and none resulted in a violation. As conditioned, staff does not anticipate the uses to adversely affect the health or safety of persons residing or working in the neighborhood. The following describes staff s analysis of the applicant s requests: A. Outdoor Café (U ): Number of Seats: The Arlington County Zoning Ordinance (ACZO) allows the County Board to modify A.8 to permit a greater number of outdoor seats than indoor seats within an outdoor café area through the approval of a use permit. The applicant requests a maximum of 102 outdoor café seats at Westover Market. Staff notes that the final number of allowable outdoor café seats will be determined by the Inspections Services Division (ISD) during the review for the issuance of the Certificate of Occupancy for the outdoor cafe. Staff supports a phased approach to permitting the maximum number of outdoor seats requested by the applicant. Condition #3 (U ) specifies that the applicant is permitted to have up to 70 outdoor seats from March 21, 2018 through October 31, If there are no documented violations of both of the applicant s use permits during this time period, the applicant may increase the number of outdoor seats up to 102, effective November 1, Piped-In Music: Staff is supportive of the applicant s request to expand the hours of piped-in music to the outdoor café area; albeit not beyond the hours specified in ACZO A.7. As stipulated in Condition #8 (U ), piped-in music may not be played after 11 p.m. on Fridays and Saturdays or after 10 p.m. on Sundays through Thursdays. In addition, all piped-in music is required to comply with the Noise Control Ordinance. Parking: Staff recommends that the outdoor café remain exempt from any parking requirement given the amount of existing parking on-site in the shopping center parking lot and on the surrounding streets; and given that parking demand for adjacent uses is limited during the typical peak hours of the outdoor café. The principle use, a restaurant, requires five (5) parking spaces, given its 30- seat limit and the ACZO restaurant requirement of 1 parking space per six (6) seats. Using the restaurant parking ratio as a standard, and assuming the outdoor café is approved for, and permitted all 102 seats under the Building Code, a maximum of 17 additional parking spaces would be required. Not including the private parking lot on the far east side of the shopping center, there are 117 parking spaces in the Westover Shopping Center lot (on-site). Moreover, there are 25 on-street parking spaces along the north side of Washington Blvd., public parking spaces on the south side of Washington Blvd., and unrestricted on-street parking on other nearby streets. In addition, several of the existing Shopping Center uses close at or before 6:30 p.m. on weekdays, and/or have limited weekend hours including the US Post U and U

7 Office, Wells Fargo bank, and barber shop thereby reducing parking demand at the Shopping Center later in the evenings on weekdays and during afternoons and evenings on weekends, when outdoor live entertainment is permitted and the outdoor café typically has the greatest number of patrons. B. Live Entertainment (U ): Independent Noise Tests: Staff is not supportive of reducing the number of noise tests currently required by the approved use permit conditions. Staff recommends amending Condition #6 (U ), requiring that at least three (3) of the four (4) noise tests occur during the approved hours of amplified outdoor live entertainment (Fridays and Saturdays). This will allow the County to continue monitoring the applicant s compliance with the Noise Control Ordinance. Hours of Outdoor Live Entertainment and Amplification: Staff is not supportive of the applicant s request to expand the permitted hours of outdoor live entertainment and amplification, given the potential for noise disturbances in the surrounding residential use districts, and the requested expansion of the co-located outdoor café seating and piped-in music hours. The applicant is currently permitted to have outdoor live entertainment three (3) days a week (Wednesday, Friday, and Saturday), with amplification permitted only on Fridays and Saturdays; as well as unamplified indoor live entertainment Tuesday through Sunday, and on holiday Mondays. The subject request is to allow amplified outdoor live entertainment on Wednesday, Thursday, Friday, Saturday, and Sunday (only when the following Monday is designated as a federal holiday under 5 U.S.C. 6103(a)). U and U

8 Figure 2: Westover Market: Outdoor Café Source: Arlington County Staff Figure 3: Westover Market: Outdoor Café Source: Arlington County Staff U and U

9 PUBLIC ENGAGEMENT: Westover Village Civic Association (WVCA): The subject site is within the WVCA boundary. The WVCA submitted to staff a Letter of Support dated January 4, 2018, which expresses support for the applicant s request to increase the outdoor café seating up to 102 seats, allow for piped in music during times when live music is not being played, and decrease acoustical testing (see attached letter). However, as of the date of this report, the WVCA neither supports nor opposes the applicant s request for expanded outdoor live entertainment days/hours and amplification/electronic instruments on additional days. Other: Staff also contacted the presidents of the nearby Tara-Leeway Heights Civic Association (TLHCA) and Highland Park-Overlee Knolls Civic Association (HPOKCA) to explain the applicant s request, the RTA process, and solicit comments. As of the date of this report, staff received no response from these associations. CONCLUSION: Staff recommends that the County Board approve: A.) the use permit for an outdoor café, subject to the proposed conditions of the staff report; and B.) the use permit amendment for live entertainment, subject to revised Conditions #1, #2, #6, #7, #8 (a.), #9, #10 (a. and b.), 11, and 13, and all other previously approved conditions, with a County Board review in seven (7) months (October 2018). A. Proposed New Conditions: Outdoor Café at Westover Market (U ) 1. The applicant agrees that the outdoor café is permitted only from 11 a.m. to 2 a.m. Monday through Saturday, and 9 a.m. to 2 a.m. on Sundays. The applicant further agrees that the hours of operation for the outdoor café shall not extend past the normal operating hours of the main use, the restaurant. 2. With the exception of the seating limit as outlined in Condition #3 below, the applicant agrees that the outdoor café area shall be generally consistent with the plans attached to the staff report for the March 17, 2018 County Board meeting titled Use Permit Plat Showing Various Patio/Outdoor Café on Lot 10 Westover Shopping Center, dated January 15, 2018 and revised February 28, The applicant agrees that the maximum number of seats permitted in the outdoor café shall not exceed 70 seats, or the number of seats permitted by the Certificate of Occupancy for the outdoor cafe, whichever is less, from March 21, 2018 to October 31, Provided there are no documented violations of the conditions for Outdoor Café and the Live Entertainment Use Permits during the aforementioned period, effective November 1, 2018, the applicant may increase the number of seats up to a maximum of 102, or the number of seats permitted by a new Certificate of Occupancy for the outdoor café, whichever is less. 4. The applicant agrees to comply, by way of illustration and not limitation, with all applicable requirements of County Ordinances and State Codes, the Zoning Division, Inspection Services Division, the Environmental Health Bureau, the Fire Marshal, the Police Department, and the Alcohol Beverage Control Board (ABC). U and U

10 5. The applicant agrees that all fixtures and furnishings in the outdoor café including, but not limited to, tables, chairs, bar, server stations, and sources of heat shall be portable and not affixed to the ground, building or other permanent structures. The applicant further agrees that portable outdoor fireplaces, as defined by the Virginia Statewide Fire Prevention Code, are prohibited in the outdoor café. All portable heaters, and the placement thereof, shall at all times conform with the requirements of the Fire Prevention Code and the Building Code. 6. The applicant agrees to designate a neighborhood liaison to communicate with the nearby residents and neighbors to address concerns which may be related to the outdoor café and an on-site liaison (this may be the same person) that shall be available during the hours of the business operation to receive and respond to developer/landlord and community concerns. The name, telephone number and electronic mail address (if available) of the on-site liaison shall be submitted to the Zoning Administrator, and a copy sent to the Westover Village, Tara-Leeway Heights, and Highland Park-Overlee Knolls Civic Association Presidents and the residents of all houses on the 1600 block of North Longfellow Street and the 5800 block of 18th Street North, by no later than April 30, The applicant acknowledges that the outdoor café is located partially within and over a public storm and sanitary sewer easement ( Easement ) (recorded in Deed Book 997, Page 174), and agrees to promptly remove all fixtures and furnishings on the outdoor café, including fencing ( Fixtures ), at the request of the Arlington County Department of Environmental Services or its contractors, should the County require access to the Easement area. The applicant further agrees that the Arlington County and its contractors are not responsible for any damages to the outdoor café or the Fixtures that may occur during repair, maintenance, or reconstruction work within the Easement area. In the event that the County has to remove any Fixtures, the applicant agrees that the County shall not responsible for restoring the outdoor café or the Fixtures to their original condition. The applicant agrees to hold Arlington County, its officials, employees and contractors harmless for any damages to the outdoor café or the Fixtures or losses which may result from work within or accessing the Easement area. 8. No sound or audio or video entertainment, including but not limited to television or radio playing of music and/or sports events, may be piped into, or played so as to be visible or audible from the outdoor café area before 9 a.m. or after 11 p.m. on Fridays and Saturdays and before 9 a.m. or after 10 p.m. on Sundays through Thursdays. 9. The applicant agrees to clean the sidewalks in and around the outdoor café every morning, including sweeping and disposing of any accumulated trash or litter. 10. The applicant agrees that the approval for the outdoor café at 5863 Washington Boulevard is valid only for the current tenant/owner of Westover Market, and shall not apply to any other restaurant in the Westover Shopping Center. In the event that any other U and U

11 tenant/owner occupies the premises, the use permit shall be subject to review and renewal by the County Board at the time of such change in occupancy. U and U

12 B. Proposed Amended Conditions: Live Entertainment at Westover Market (U ) 1. This live entertainment use permit shall apply solely to the restaurant located at 5863 Washington Boulevard and shall not apply to any other restaurant in the Westover Shopping Center. The applicant agrees that the approval for live entertainment at 5863 Washington Boulevard is valid only for the current tenant/owner of Westover Market. In the event that any other tenant/owner occupies the premises, the use permit shall be subject to review and renewal by the County Board at the time of such change in occupancy. 2. The applicant agrees that in order to have live entertainment as an accessory use permitted by this use permit, a restaurant (as defined by the Arlington County Zoning Ordinance) is required. 6. The applicant agrees to retain an acoustical engineer or similar expert acceptable to the County Manager to develop a sound management plan that conforms to this condition, submit to and obtain approval from the County Manager for the plan, and implement and thereafter maintain such plan throughout the life of the use permit. The sound management plan shall ensure that the sound emitted from the live entertainment shall not exceed the limits of the Noise Control Ordinance or the limits specified hereinafter, whichever is less. The approved sound management plan shall be implemented beginning at or before commencement of live entertainment at the site. The applicant agrees that if a test involving live entertainment is necessary for the acoustical engineer to properly assess the feasibility of the sound management plan, the applicant agrees to request approval of such test from the Zoning Administrator at least 72 hours before commencement of the test. The applicant when making such a request shall submit the name and phone number of the acoustical engineer that will be on site conducting the test, the proposed schedule of said test, and the nature of the music being performed during said test. The applicant further agrees to inform the Westover Village Civic Association and nearest neighbors identified in Condition #3 at least 24 hours before commencing such test, if said test is approved by the Zoning Administrator. The applicant agrees that only one (1) test shall be approved by the Zoning Administrator. During the live entertainment the decibels measured shall at no time exceed 60 db before 9 p.m. and 55 db after 9 p.m., or the limits of the County Noise Ordinance, whichever is less, the sound management plan making an accounting for environmental noise, e.g. vehicular traffic, aircraft, etc. The applicant agrees that he will cause the acoustical engineer, or a similar expert acceptable to the County Manager, to conduct random unannounced checks of the noise level and the management of the sound at least every two (2) months, beginning in April while the live entertainment is occurring. There shall be a minimum of four (4) tests between April and October. The tests shall be conducted in accordance with the procedures in the County Noise Control Ordinance from, at a minimum, two (2) locations including from the nearest residential property line. At least three (3) of the (4) noise tests shall be conducted on Fridays or Saturdays during the permitted outdoor live U and U

13 entertainment hours. The acoustical engineer or expert shall also submit a monthly written report of the results of such tests to the applicant, which the applicant shall provide to the Arlington County Zoning Administrator, the neighbors identified in Condition #3, and the President of the Westover Village Civic Association. Results that show any noise levels above those referenced in this condition shall, without limitation as to the bases for revocation, be grounds for revocation of the use permit for live entertainment. 7. The applicant shall comply with the Arlington County Noise Ordinance as well as all other County and State Ordinances and the regulatory requirements of the Environmental Health Bureau, the Fire Marshal, the Police Department and the Virginia Department of Alcohol Beverage Control. The applicant agrees to comply, by way of illustration and not limitation, with all applicable requirements of County Ordinances and State Codes, the Environmental Health Bureau, the Fire Marshal, the Police Department and the Virginia Alcohol Beverage Control Board (ABC). The applicant agrees that the live entertainment and/or amplification shall not cause vibrations on adjacent properties. 8. a. The applicant agrees that outdoor live entertainment is permitted only from April 1 to October 31 three days a week: on Wednesdays from 6 p.m. to 8 p.m., and Fridays from 6 p.m. to 10 p.m., Saturdays from 5 p.m. to 9 p.m., and at no other times. Outdoor live entertainment shall not be amplified and shall not consist of electric or electronic instruments, except on Fridays and Saturdays. The applicant agrees that Westover Market shall provide the amplification equipment, including speakers, mixing board and any equipment that controls volume. Volume shall always be controlled by a Westover Market employee. Performers shall not be permitted to control the volume. b. Except as otherwise provided above, indoor live entertainment is permitted only on: i) Tuesdays through Thursdays from 7:00 p.m. to 10 p.m.; ii) Fridays through Sundays from 6 p.m. to 10 p.m.; iii) Mondays that are designated as a federal holiday under 5 U.S.C. 6103(a), from 6 p.m. to 10 p.m. and no other Mondays; iv) July 4 from 6 p.m. to 10 p.m. Indoor live entertainment shall not be amplified and shall not consist of electric or electronic instruments at any time. 9. The applicant agrees that the outdoor café live entertainment shall not occur when the restaurant is not open for business. 10. a. The applicant agrees that maximum capacity of the outdoor café/beer Garden shall be 29 seats when live entertainment is not occurring. No more than 24 seats and 69 persons standing shall be permitted during outdoor live entertainment. The applicant agrees that the total capacity on the outdoor café during outdoor live entertainment events shall not exceed 93, as approved by the Certificate of Occupancy for the outdoor cafe. b. The applicant agrees that during indoor live entertainment no more than three (3) standing persons, in addition to the seated persons, and no more than 33 persons total will be permitted in the indoor restaurant area, (including performers) as approved by the Certificate of Occupancy for the indoor restaurant area. U and U

14 11. The applicant agrees to cooperate with the Arlington County Police Department when responding to complaints related to the outdoor café and live entertainment, and to ensure that all restaurant staff serving alcohol shall complete the State Training Intervention Procedures (TIPS) program. The applicant further agrees that all staff serving alcohol to customers shall have TIPS (Training for Intervention Procedures) certification (or equivalent training accepted by the Alcohol Beverage Control Board (ABC)). The applicant agrees to keep a record of TIPS training certification for all restaurant staff, including all new staff, and submit this information upon the County s request. 13. The applicant agrees that radio, recorded, or piped-in music shall not be played in the outdoor café/beer Garden on evenings (6 p.m. to closing time) that live music is not permitted, and during evening hours may only be played during permitted live entertainment hours of operation. U and U

15 Approved Conditions: Live Entertainment at Westover Market (U ) 1. This live entertainment use permit shall apply solely to the restaurant located at 5863 Washington Boulevard and shall not apply to any other restaurant in the Westover Shopping Center. 2. The applicant agrees that in order to have live entertainment as an accessory use permitted by this use permit, a restaurant (as defined by the Arlington County Zoning Ordinance) is required. 3. The applicant agrees to designate a neighborhood liaison who will be present at the Westover Market during business hours to communicate with nearby residents and neighbors to address concerns which may be related to the live entertainment, and to have an on-site liaison who shall be available during the hours of live entertainment to receive and respond to community concerns regarding the live entertainment. The applicant agrees that the designated on-site liaison shall be present on site at all times during the hours of live entertainment. The applicant further agrees that the name and telephone number of such liaison(s) shall be submitted to the Zoning Administrator, the Westover Village, Tara-Leeway Heights and Highland Park-Overlee Knolls Civic Association Presidents and the residents of all houses on the 1600 block of North Longfellow Street and the 5800 block of 18th Street North before issuance of the Certificate of Occupancy for the indoor restaurant within the market. The applicant shall submit to the Zoning Administrator proof that contact information has been shared with the above-mentioned residents and the civic associations before issuance of the certificate of occupancy for the indoor restaurant within the market. In the event the designated liaisons change, such information shall be immediately forwarded to the Zoning Administrator and the above-named residents and Civic Associations. 4. The applicant agrees that there shall be no dancing by patrons or performers unless and until the applicant has applied for and obtained a Dance Hall Permit. 5. The applicant agrees that the area designated for the outdoor live performers shall be generally as shown on the exhibit entitled Café at Westover and dated 3/14/2011 ( Exhibit ). The applicant shall ensure that outdoor performers shall always be set up so they are performing facing Washington Boulevard. The applicant agrees that the area designated for the indoor live entertainment shall be as shown on the Exhibit entitled Indoor Entertainment Floor Plan, dated April 4, 2017 attached to the staff report for the April 22, 2017 County Board report. The applicant agrees to keep all doors and windows closed and that the doors and windows shall not be propped open during the indoor live entertainment. The applicant further agrees that at no time will indoor live entertainment and outdoor live entertainment occur at the same time. 6. The applicant agrees to retain an acoustical engineer or similar expert acceptable to the County Manager to develop a sound management plan that conforms to this condition, U and U

16 submit to and obtain approval from the County Manager for the plan, and implement and thereafter maintain such plan throughout the life of the use permit. The sound management plan shall ensure that the sound emitted from the live entertainment shall not exceed the limits of the Noise Control Ordinance or the limits specified hereinafter, whichever is less. The approved sound management plan shall be implemented beginning at or before commencement of live entertainment at the site. The applicant agrees that if a test involving live entertainment is necessary for the acoustical engineer to properly assess the feasibility of the sound management plan, the applicant agrees to request approval of such test from the Zoning Administrator at least 72 hours before commencement of the test. The applicant when making such a request shall submit the name and phone number of the acoustical engineer that will be on site conducting the test, the proposed schedule of said test, and the nature of the music being performed during said test. The applicant further agrees to inform the Westover Village Civic Association and nearest neighbors identified in Condition #3 at least 24 hours before commencing such test, if said test is approved by the Zoning Administrator. The applicant agrees that only one (1) test shall be approved by the Zoning Administrator. During the live entertainment the decibels measured shall at no time exceed 60 db before 9 p.m. and 55 db after 9 p.m., or the limits of the County Noise Ordinance, whichever is less, the sound management plan making an accounting for environmental noise, e.g. vehicular traffic, aircraft, etc. The applicant agrees that he will cause the acoustical engineer, or a similar expert acceptable to the County Manager, to conduct random unannounced checks of the noise level and the management of the sound at least every two (2) months, beginning in April while the live entertainment is occurring. There shall be a minimum of four (4) tests between April and October. The tests shall be conducted in accordance with the procedures in the County Noise Control Ordinance from, at a minimum, two (2) locations including from the nearest residential property line. The acoustical engineer or expert shall also submit a monthly written report of the results of such tests to the applicant, the Arlington County Zoning Administrator, the neighbors identified in Condition #3, and the President of the Westover Village Civic Association. Results that show any noise levels above those referenced in this condition shall, without limitation as to the bases for revocation, be grounds for revocation of the use permit for live entertainment. 7. The applicant shall comply with the Arlington County Noise Ordinance as well as all other County and State Ordinances and the regulatory requirements of the Environmental Health Bureau, the Fire Marshal, the Police Department and the Virginia Department of Alcohol Beverage Control. The applicant agrees that the live entertainment and/or amplification shall not cause vibrations on adjacent properties. 8. a. The applicant agrees that outdoor live entertainment is permitted only from April 1 to October 31 three days a week: on Wednesdays from 6 p.m. to 8 p.m.; and Fridays from 6 p.m. to 10 p.m., Saturdays from 5 p.m. to 9 p.m., and at no other times. Outdoor live entertainment shall not be amplified and shall not consist of electric or electronic instruments, except on Fridays and Saturdays. The applicant agrees that Westover Market U and U

17 shall provide the amplification equipment, including speakers, mixing board and any equipment that controls volume. Volume shall always be controlled by a Westover Market employee. Performers shall not be permitted to control the volume. b. Except as otherwise provided above, indoor live entertainment is permitted only on: i) Tuesdays through Thursdays from 7:00 p.m. to 10 p.m.; ii) Fridays through Sundays from 6 p.m. to 10 p.m.; iii) Mondays that are designated as a federal holiday under 5 U.S.C. 6103(a), from 6 p.m. to 10 p.m. and no other Mondays; iv) July 4 from 6 p.m. to 10 p.m. Indoor live entertainment shall not be amplified and shall not consist of electric or electronic instruments at any time. 9. The applicant agrees that the outdoor café shall not be open when the restaurant is not open for business. 10. a. The applicant agrees that maximum capacity of the outdoor café/beer Garden shall be 29 seats when live entertainment is not occurring. No more than 24 seats and 69 persons standing shall be permitted during outdoor live entertainment. The applicant agrees that the total capacity on the outdoor café during outdoor live entertainment events shall not exceed 93, as approved by the Certificate of Occupancy for the outdoor cafe. b. The applicant agrees that during indoor live entertainment no more than three (3) standing persons, in addition to the seated persons, and no more than 33 persons total will be permitted in the indoor restaurant area, (including performers) as approved by the Certificate of Occupancy for the indoor restaurant area. 11. The applicant agrees to cooperate with the Arlington County Police Department when responding to complaints related to the outdoor café and live entertainment, and to ensure that all restaurant staff serving alcohol shall complete the State Training Intervention Procedures (TIPS) program. 12. The applicant agrees to notify the County Manager at any time when a change of ownership is contemplated; upon a change of ownership of the Westover Market, the use permit shall be scheduled for a County Board review. 13. The applicant agrees that radio, recorded, or piped-in music shall not be played in the outdoor café/beer Garden on evenings (6 p.m. to closing time) that live music is not permitted, and during evening hours may only be played during permitted live entertainment hours of operation. U and U

18 PREVIOUS COUNTY BOARD ACTIONS: June 23, 1956 September 14, 1957 June 7, 1958 June 13, 1992 June 5, 1993 May 17, 2011 February 11, 2012 November 17, 2012 July 13, 2013 Approved use permit (U ) for a parking lot as a transitional use, subject to conditions. Amended use permit (U ) for a parking lot as a transitional use to eliminate the requirement for fencing in a portion of the rear yard, at the discretion of the Zoning Administrator. Adopted a master plan for the Westover Shopping Area. Approved a use permit (U ) for construction and operation of a United States Post Office and associated parking, subject to conditions and a review one year after issuance of the certificate of occupancy. Renewed a use permit (U ) for construction and operation of a United States Post Office and associated parking, subject to all previous conditions and a review one year after issuance of the certificate of occupancy. Approved a use permit (U ) for live entertainment in an existing restaurant outdoors, subject to conditions and a County Board review in February Approved a use permit amendment (U ) to amend conditions #6, 8, and 14 to permit continued live entertainment and amplified entertainment after an administrative review, with an administrative review in June 2012 and a County Board review in November Renewed a use permit for live entertainment and amended condition #8 and deleted condition #14, with a County Board review in nine (9) months (July 2013). Renewed a use permit for live entertainment and amended condition #6 with a County Board review in one (1) year (July 2014). U and U

19 July 19, 2014 April 22, 2017 February 24, 2018 Renewed a use permit for live entertainment and amended Condition #13 with a County Board review in three (3) years (July 2017). Approved a use permit amendment to allow indoor live entertainment, and permit furniture on the outdoor café year-round, subject to all previously approved conditions, revised Conditions #1, #2, #5, #8 (a. and b.), #9, and #10 (a. and b.), with an Administrative Review in six (6) months (October 2017) and a County Board review in one (1) year (April 2018). Authorized advertisement of a public hearing On the County Board s Own Motion to consider a new use permit for an outdoor café and a use permit amendment for live entertainment for Westover Market at the March 17, 2018, County Board meeting. U and U

20 January 4, 2018 To: Adam Watson RE: Westover Market and Beer Garden Use Permits On behalf of the Westover Civic Association Board, I would like to register our support for the new/revised use permits for the Westover Market and Beer Garden. The market is a vital part of our community and serves as a gathering place for many that we would like to see continue to thrive in the neighborhood. We support the outdoor café use permit request which would allow the Beer Garden to maintain the 102 seats outside which have been in use for much of the time and meets the requirements of the fire marshal. Maintaining this capacity is important for them to meet the demand of the area without turning away patrons, which in turn allows the business to succeed. Additionally, we support the change to the music permit that would allow for piped in music during times when live music is not being played. It is common for restaurants to have background music playing and this establishment should be allowed to do the same without tying it to the live music rules. The Italian Store at the opposite end of the shopping center currently plays piped in music and serves as a precedent in the Westover area. Lastly, we also support the Market s proposed change for decreased acoustical testing. Overall, we believe the market is an important part of our community and serves as a gathering place for many. We look forward to seeing them continue to thrive and be a strong part of what makes Westover such a desirable place to live and visit. Thank you for your consideration, Lilith A Christiansen WVCA President

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22 THST N 1644 S-3A TH ST N R-6 N LEXINGTON ST MCKINLEY RD WASHINGTON BLVD U and U Washington Blvd RPC #s & C N LANCASTER ST RA N LONGFELLOW ST TH ST N Scale: RA ICase Location(s) 1:1,800 Note: These maps are for property location assistance only. They may not represent the latest survey and other information. Department of Community Planning, Housing and Development County Use Only Date Placard Posted By Removed