ARLINGTON COUNTY, VIRGINIA. County Board Agenda Item Meeting of July 14, 2018

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1 ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of July 14, 2018 DATE: July 6, 2018 SUBJECT: Ordinance of Encroachment to Permit the Encroachment of a Canopy into an Easement for Public Street and Utilities Purposes Along the Northern Boundary of Property Known as Parcel A-2 Ballston Quarter, 4238 Wilson Blvd., RPC # , with Conditions. Owner/Applicant: FC Ballston Common, LLC 8010 Towers Crescent Drive, Suite 300 Tysons Corner, VA Agent: G. Evan Pritchard Venable LLP 8010 Towers Crescent Drive, Suite 300 Tysons Corner, VA C. M. RECOMMENDATION: Enact the attached Ordinance to Permit the Encroachment of a Canopy into an Easement for Public Street and Utilities Purposes Along the Northern Boundary of Property Known as Parcel A-2, Ballston Quarter, RPC # , with Conditions. ISSUES: This is a request by FC Ballston Common, LLC ( Owner/Applicant ) for the County Board to enact an Ordinance of Encroachment to permit the encroachment of a canopy into an easement for public street and utilities purposes as part of the Ballston Quarter Redevelopment, subject of Site Plan #193, approved by the County Board in November There are no outstanding issues related to the proposed encroachment at this time. SUMMARY: The Owner/Applicant has requested that the County Board enact the attached Ordinance of Encroachment ( Ordinance ) to permit the encroachment of a canopy ( Encroachment ) into an easement for public street and utilities purposes along the northern boundary of Parcel A-2, Ballston Quarter, RPC # ( Property ). The requested encroachment is to permit a canopy for a restaurant tenant in an area that is part of the Ballston County Manager: ##### County Attorney: ***** 8. B. Staff: Jennifer Butler, Linda Eichelbaum Collier, DES, REB

2 Quarter Redevelopment, SP #193 ( Site Plan ). Upon enactment of the proposed Ordinance, permission for the Encroachment would continue until the Encroachment is destroyed, removed, no longer in use, or not continuously and promptly maintained by the Owner/Applicant. BACKGROUND: The Owner/Applicant has requested that the County Board enact the attached Ordinance to permit encroachment by a canopy, for a restaurant tenant (currently Ted s Bulletin), approximately 16.2 feet into an Easement for Public Street and Utilities Purposes ( Easement ). The total area of the proposed encroachment into the Easement is two hundred thirty-nine (239) square feet. The area of the Encroachment is more particularly shown on Vicinity Maps 1, 2 and 3 attached to this report. The restaurant is part of the Mall Project portion of the Site Plan, which, as proposed, includes the addition of approximately 11,854 square feet of retail GFA. DISCUSSION: Upon enactment of the proposed Ordinance, the Owner/Applicant will be permitted to construct a canopy that encroaches approximately 16.2 feet into an easement for public street and utilities easement, with a total encroachment area of approximately two hundred thirty-nine (239) square feet. The height of the proposed canopy is nine (9) feet above the surface of the sidewalk at its lowest height and twelve (12) feet above the surface of the sidewalk at its highest point. The Ordinance would continue in effect until the earlier of: the building on the Property is destroyed, removed and/or not rebuilt consistent with, and as authorized by, Site Plan #193, as amended; the permit for the outdoor café is not granted, or is revoked; the canopy is removed or not maintained continuously and promptly; or, the County requests at any time in writing to the Owner/Applicant that the encroachment permitted by the Ordinance be removed. The ordinance will limit the specific location, size and dimensions of the requested encroachment. The location and dimensions of the proposed Encroachment are depicted on the plat entitled Plat Showing Encroachment Parcel A-2 Ballston Quarter Deed Book 2912, Page 212 Arlington County, Virginia, dated April 16, 2018 and prepared by VIKA Virginia, LLC ( Plat ), attached hereto as Exhibit A. The proposed canopy encroachment is depicted as 239 SF Canopy Encroachment into Easement for Public Street and Utilities Purposes on the Plat. Legal and Physical Description: The Property is owned by FC Ballston Commons, LLC by virtue of a Deed of Resubdivision, Vacation, Rededication and Conveyance recorded among the land records of Arlington County, Virginia, ( Land Records ) as Instrument No The Encroachment is located within an Easement for Public Street and Utilities Purposes, which is recorded among the Land Records in Deed Book 2178 at Page Public Notice: Public notice was given in accordance with the Code of Virginia. Notices were placed in the June 19, 2018 and the June 26, 2018 issues of The Washington Times for the July 14, 2018 County Board Meeting. Compensation: Compensation in the amount of $7, will be charged for the Encroachment based upon a prior appraisal on the Property from a certified independent appraiser. The Owner/Applicant has agreed to pay this amount of compensation to the County

3 PUBLIC ENGAGEMENT: Notice of the request for the Encroachment was sent by certified mail to neighboring property owners and the affected civic associations by the Owner/Applicant on June 13, In addition to the required advertisement of the Ordinance, the site plan approval was the subject of meetings with the community and the County Board in FISCAL IMPACT: The amount of $7, will be deposited into the County s General Fund

4 ATTACHMENT 1 ORDINANCE OF ENCROACHMENT TO PERMIT THE ENCROACHMENT OF A CANOPY WITHIN AN EASEMENT FOR PUBLIC STREET AND UTILITIES PURPOSES ON THE NORTHWEST PORTION OF PROPERTY KNOWN AS PARCEL A-2 BALLSTON QUARTER, 4238 WILSON BLVD., RPC # , WITH CONDITIONS. BE IT ORDAINED by the County Board of Arlington County, Virginia ( County Board ) that, pursuant to an application on file with the Department of Environmental Services, Real Estate Bureau, FC Ballston Common, LLC ( Owner/Applicant ), as the developer of a project that is an amendment to Site Plan #193, Ballston Quarter ( Site Plan ), and the owner of property known as Parcel A-2, Ballston Quarter, located at 4238 Wilson Blvd., RPC # ( Property ), said request being on file with the Department of Environmental Services, is hereby permitted to construct, locate, operate and maintain a steel canopy as described herein ( Encroachment ) within a portion of an easement for public street and utilities purposes, created by deed recorded among the Arlington County, Virginia land records ( Land Records ) in Deed Book 2178 at Page 1438 ( Easement ). The dimensions (length and width), characteristics, spatial area and location of the permitted Encroachment are depicted on a plat attached to the County Manager s Report for this agenda item as Exhibit A and entitled Plat Showing Encroachment Parcel A-2 Ballston Quarter Deed Book 2912, Page 212 Arlington County, Virginia, dated April 16, 2018 and prepared by VIKA Virginia, LLC ( Plat ) and as further described on the Plat as 239 SF Encroachment into Easement for Public Street and Utilities Purposes. No structures except a canopy are permitted to be installed or constructed by the Owner/Applicant, or to exist within the area of Encroachment shown on the Plat. BE IT FURTHER ORDAINED that this permission shall be in license only, and shall automatically terminate without further action of the County Board upon the earlier of : Site Plan #193 is no longer in effect or is further amended in relation to the area of the Encroachment; the building on the Property is destroyed, removed and/or not rebuilt consistent with, and as authorized by, Site Plan #193, as amended; the use permit for the outdoor café ( Use Permit ) related to the Encroachment is not granted by the County Board by December 31, 2018, or such Use Permit is discontinued or revoked; or, the County requests at any time in writing to the Owner/Applicant that the Encroachment permitted by the Ordinance be removed. Nothing herein shall be construed to either allow the installation of any above or below ground structure other than the permitted Encroachment within the area shown on the Plat. BE IT FURTHER ORDAINED that the Owner/Applicant, and its successors and assigns, shall continuously and promptly maintain the structures which constitute the Encroachment, and maintain, restore, repair, and replace all County-owned facilities, within and adjacent to the Encroachment, including any building, sidewalk, curb and gutter, and paved surface, which are damaged by the installation, maintenance, destruction, continued existence, repair or removal of the Encroachment in accordance with the Site Plan, the approved use permit for the outdoor café, and all applicable County standards

5 BE IT FURTHER ORDAINED that in the event of the need for routine utility work or County infrastructure repairs in the area of the Encroachment, the County may, by written notice delivered to the Owner/Applicant, require the Owner/Applicant, at the Owner/Applicant s sole cost and expense, to remove the Encroachment within fourteen (14) days of delivery of said notice. If the Encroachment is not removed within fourteen (14) days of delivery of said notice, the County shall have the right, at the sole cost and expense of the Owner/Applicant, to remove the Encroachment and shall not be liable for any loss or damage to the canopy or building that may result from such removal. In such event, the County shall not be responsible for replacing such Canopy. BE IT FURTHER ORDAINED that this Ordinance shall not be construed to release the Owner/Applicant, and its successors and assigns, of negligence on their part due to such Encroachment, and the Owner/Applicant, by constructing, locating or causing to be constructed the Encroachment within the Easement, agrees for itself, and its successors and assigns, to indemnify and hold harmless the County Board of Arlington County, Virginia and all County officials, officers, employees, contractors, and agents from all claims, negligence, damages, costs, and expenses arising out of the location, existence, construction, maintenance, repair, and removal of the Encroachment, and the permission for the Encroachment to be located within the Easement as permitted by the Ordinance. BE IT FUTHER ORDAINED that the Owner/Applicant, at its sole cost and expense, shall continuously and at all times promptly maintain, including snow and ice removal, the area of the Encroachment, including all maintenance, restoration, repair, and replacement of all facilities within and adjacent to the Encroachment Area. BE IT FUTHER ORDAINED that prior to recordation of the Ordinance, the Owner/Applicant shall pay to the County of Arlington compensation for the Encroachment in the amount of $7, BE IT FURTHER ORDAINED that, on or before July 14, 2021, the Owner/Applicant, at its sole cost and expense, shall comply with all conditions of this Ordinance and thereafter cause a certified copy of this Ordinance and the Plat, which Plat shall be approved by the Director of the Department of Environmental Services, or his designee, to be recorded in the Land Records and evidence thereof shall be promptly delivered by the Owner/Applicant to the Real Estate Bureau Chief, Department of Environmental Services

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7 N STUART ST Vicinity Map 4238 Wilson Blvd RPC# WILSON BLVD Canopy Encroachment into Easement for Public Sidewalk and Utilities Purposes Area = 239 SQ. FT N RANDOLPH ST N GLEBE RD Feet / Pursuant to Section of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. Aerial Photography 2017 Commonwealth of Virginia Easement Locations are Approximate. Map prepared by Arlington County GIS Mapping Center Produced and June 2018

8 N UTAH ST N TAYLOR ST N STUART ST N STAFFORD ST Vicinity Map 4238 Wilson Blvd RPC# FAIRFAX DR N RANDOLPH ST 9TH ST N WILSON BLVD N TAZEWELL ST 7TH ST N N GLEBE RD Canopy Encroachment into Easement for Public Sidewalk and Utilities Purposes Area = 239 SQ. FT. N QUINCY ST 5TH RD N N POLLARD ST N VERMONT ST N PARK DR N CARLIN SPRINGS RD N THOMAS ST 5TH RD N Feet 5TH ST N / Pursuant to Section of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. Aerial Photography 2017 Commonwealth of Virginia Easement Locations are Approximate. Map prepared by Arlington County GIS Mapping Center Produced and June TH ST N

9 Vicinity Map 4238 Wilson Blvd RPC# N STUART ST WILSON BLVD Canopy Encroachment into Easement for Public Sidewalk and Utilities Purposes Area = 239 SQ. FT. N RANDO LPH ST N G LE BE RD Feet / Pursuant to Section of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. Aerial Photography 2017 Commonwealth of Virginia Easement Locations are Approximate. Map prepared by Arlington County GIS Mapping Center Produced and June 2018