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Battle Brewing Over Westover Beer Garden Re-Opening

by Katie Pyzyk | February 24, 2012 at 4:55 pm | 6,702 views | 105 Comments

It’s been a contentious couple of weeks for the Westover Market and Beer Garden. Upon receiving a warning from Arlington County, it suddenly declared the beer garden would shut down until April 1. Today, the saga continues as management has decided to re-open the beer garden against the County’s wishes.

Owner Devin Hicks said he’s tried working with the county on the matter but his efforts have not been successful. Now he’s going to do what he believes Westover Market is entitled to do by law — operate a year-round patio area.

Bob Brosnan, Director of the Department of Community Planning, Housing and Development, clarifies that Hicks did not receive an actual citation — as stated in a previous article — but rather a courtesy letter requesting compliance. A violation notice will likely be sent out on Monday and Westover Market will have 10 days to bring itself in compliance, or face fines, Brosnan said.

The goal is not to hinder businesses or to collect fines, it’s to keep businesses in compliance with county ordinances, according to Brosnan.

“We’ve been trying to work with them to make them understand how we can work with them legally, that is our goal,” he said. “Our goal in these cases is always compliance.”

Arlington County has developed a web page specifically relating to the beer garden at Westover Market. On the page, it states that establishments with outdoor patios must have ample parking for the number of people being served, but that parking requirement is reduced if the establishment is near a Metro stop. The County allows establishments to get around the parking rule by becoming “seasonal” and closing for three or more months each year.

Because the Westover beer garden isn’t deemed as having enough parking, it’s supposed to be seasonal. However, Hicks points out the rule is technically a “guideline” and not an actual “ordinance.” He believes the county has been enforcing a measure that was never officially put in the books.

The County’s web page for Westover Market links to another County page, titled “Guidelines for Outdoor Cafes.” On that document it states: “Unless otherwise required by the County Board, outdoor cafes shall be exempt from any parking requirement.” It goes on to say: “There is no explicit requirement in the Zoning Ordinance that requires them to be temporary or seasonal.”

Of his long-running trouble with the county, Hicks said relations have improved over the past year or so, but he believes he’s currently being unfairly targeted with the enforcement of the seasonal rule.

“We’re just going to go ahead and do what’s legally right,” Hicks said. “There’s nothing in the rules that says it has to be seasonal.”

Earlier this winter, Hicks had the tables, chairs and bar removed from the beer garden area in an attempt to comply with the county’s zoning enforcers. Still, patrons who bought beverages inside were allowed to take the drinks outside and congregate around the fire pits. Hicks says he was later told that no patrons were allowed in the beer garden regardless of circumstances, and that he would even have to turn the patio lights off at night. That’s when he decided enough was enough. As of today, all seating, televisions and fire pits are back, and an outdoor bar will be operational.

“No one’s winning from this,” said Hicks. “We’re both losing.”

Hicks is careful to note his issue is not with the members of the County Board. It’s strictly a problem with the county’s zoning enforcement.

“This is not reflective of  the County Board,” Hicks said. “The County Board probably has no idea of what’s happening, and probably has no idea of these rules.”

Hicks pointed out that spring officially starts on March 20, as does the kickoff for DC’s National Cherry Blossom Festival. Despite the warmer weather and springtime activities, he is upset the beer garden is supposed to remain closed until April.

“We have decorative apple trees, they’re beautiful in the spring,” Hicks said. “But for some reason this April 1 magic number is when we can start the beer garden.”

Brosnan said the County does not have a rule about April 1, the rule is simply to keep a business “seasonal.” Therefore, Westover Market’s beer garden, like other seasonal businesses, should be able to open the first day of spring as long as it had been non-operational for the required three months.

Last year Westover Market received a permit to provide live music starting on April 1. Hicks still plans to stick by the April 1 date for music.

Brosnan pointed out that for Hicks to receive the music permit, he had to review and agree to the County’s rules as laid out in a document called “Zoning Administrator Advice” from November 2010. Hicks had previously agreed to comply, and Brosnan says he isn’t sure what has changed to cause the current state of affairs.

Hicks is now anticipating a fine of some sort for his defiance of the county rules. When asked if he would pay such a fine, he said he’d address that if the time comes. Meanwhile, he and the other employees are focused on business as usual.

“We’re trying to run a business and trying to give people what they want while following rules of county, which we’ve done,” Hicks said.

Brosnan believes the overall fight may be an issue of wording in documents. That, he says, is for lawyers to hash out. Brosnan noted that once Hicks receives a citation for non-compliance, he has the option to appeal.

Photo (top) via Facebook

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  • Poshboy

    If Westover is fined, the executive running enforcement office, Mr. Brosnan, needs to be sacked by the County Board immediately. What a waste of scarce county resouces, especially in a time when every small business needs as much support and as much business as possible. What year is Brosnan living in?! This isn’t the late 1990s–we’re in a dangerous recession today.

    Get this clown out of this important office, and hire someone who really supports the local business community–and has a clue.

    Good for Westover Market–they are in the right, and I support them 100 percent in their actions.

    PB, Arlington County resident.

    • John Fontain

      Are you saying the role of the zoning office is to support the local business community?

      • Southeast Jerome

        how are we “in a dangerous recession”

        I believe there have been something like 10 quarters in a row of GDP growth man. Thats 2.5 years of a growing economy. Stock markets are at 3 year highs.

        Arlington and the DC area in general, are booming. Just look at the rent prices and the number of cranes around here….

        • Josh S

          +1

    • cheryl hightower

      You got that right!

  • Not so fast my friend…

    Sounds like the county is responding to multiple complaints from Arlington residents who live in the area? I wish the neighbors would be a little more forgiving, but should the county simply ignore constituents’ complaints?

    • Zoning Victim

      That depends on how many people are complaining, don’t you think? Every neighborhood has a few whack jobs that are always complaining about something somebody else is doing, why should these few people have so much power to have some company or homeowner harassed if they’re following the law?

      The question isn’t whether or not there are a few people who don’t like the Beer Garden; the question is whether or not they’re in compliance with the ordinance as it’s written. It seems to me from the articles that they are in compliance.

      It’s hard for me to believe that the state sits idly by while this county stomps all over people’s right to due process.

      • Suburban Not Urban

        More importantly – what about your neighbors stepping up for each other, rather than the “what about my fun” culture that seems to be prevail here. The history of this is that the folks most affected – living with-in 100ft of this, are the ones most concerned about the WBG acting responsibly and considerately. Folks who cite that the neighborhood association says who cares- because I like it and it doesn’t actually negatively impact my house – just demonstrate how prevalent this attitude is.

        • Geezer

          Get off my lawn!!

        • cheryl hightower

          We held many meetings to deal with their concerns. They seem to refuse to compromise.

      • Cheryl Hightower

        I just looked at the use permit and it doesnt say anything about closing three months out of the year.

        • Tackleberry

          Is the use permit for the live entertainment or for the whole outdoor cafe thing?

    • cheryl hightower

      The community supports the WBG and the current issue is being brought forth by an extremely SMALL number of neighbors, probably about 3. WHat is their concern exactly? How are they being negatively impacted? They are looking for any tiny thing so that they can win. The community has bent over backwards to consider their concerns and make amends. No one is taking their street parking, so what concern could they possibly have? It amounts to harrassment

      • Suburban Not Urban

        Right so WBG doesn’t like this rule and decides not to follow it. Then they don’t like the next rule and decide not to follow that. If you actually follow the history of stuff like this through out the county, you’ll see that the only way for residents to get any accountability from the businesses’ is to hold them to the letter of the agreement.

        • Cheryl Hightower

          also, to note, the County page clearly states that they are responding to complaints by neighbors. That is where the harassment can be found and making complaints that neither correspond to actual fact or reality is a big problem.

      • Ballstonienne

        I would say WBG supporters constantly shaming the neighbors amounts to harassment. Just drop that issue, because it does not apply anymore. A compromise was reached months ago. Unless you can show that the neighbors are behind this latest blow up with county staff, please kindly zip it about the neighbors.

        • Cheryl Hightower

          Actually, the police were called by a neighbor for “noise” and in fact, it is documented that no “noise” was found. The complaint was unfounded and would lead one to conclude that in fact it is a false complaint……..

        • Cheryl Hightower

          Further, the “rule” is in fact not a “rule” but rather “guidance.” Please read the zoning information sheet.

    • Cheryl Hightower

      The community has bent over backwards to compromise and hear their concerns. Should the County ignore the majority of residents who want an establishment to function as currently designed causes NO inconvenience to the neighbors? This is just about wanting to fight.

  • Gastronaut

    Lots of places in Crystal City with outdoor seating last night. The ones I saw were 0.3 – 0.4 miles from the metro, more than the stated 1000′ Arlington is demanding.

    And why is a Metro *rail* station important? Westover is a scant 0.8 mile from EFC Metro rail station, I’ve walked it. But there’s a bus stop right at the WBG’s front door and I’ve used it frequently. Is Arlington trying to discriminate between rail riders and bus riders?

    I’ve also ridden a bike there, living a mile from the WBG. Shouldn’t we be encouraging walking, riding and mass transit in Arlington?

    And what could possibly be the benefit of encouraging people to drive — to use the parking — at a biergarten, or any other facility that serves alcohol (e.g., Jaleo, Kora, Neramita, McCormick & Schmick in Crystal City)?

    The rules — if there are any — seem to be enforced unevenly at best, and don’t seem to adhere to Arlington’s stated goals of decreasing driving, using mass transit, and building walkable/bikeable communities.

    • OldTimer

      Never heard of a complaint about The Bier Garden @ Donaldson Run… and that ain’t near anything.

  • pdksobe

    Bob Brosnan = Waste of Arlington Taxpayers Money.

    Think of all the county resources spent on countless meetings, web pages, and enforcement of lights/patrons on a small patio.

    There are several bar/restaurants in Westover so residents should know that they’re living next to a commercial establishment when moving next to the shopping center. Also, plenty of parking in the back.

    If this were a homeless shelter with a shared bikes and zip car parking out front, the county would be giving them millions.

    While Westover Market is too pricey for me, I’m going there to purchase a case of craft beer to reward the courage of this small business owner standing up to the faceless, fat, lazy bureaucrat.

  • Virginia^2

    The County’s page on the Westover Beer Garden says:

    “An outdoor café can be open year-round if the following conditions are met:
    - provide one parking space for every six seats
    - be on private property
    - be within 1,000 feet of a Metro stations

    “An outdoor café that does not have parking is a seasonal use and needs to be close at least one season (three months) of its choosing.

    The article then links to a 2010 County interpretation that says that “outdoor patio” is not defined, but is mentioned in 31.A.11 of the Zoning Ordinance. That subsection does indeed say that patios are exempt from parking requirements, unless otherwise required by the County Board.

    I see two possibilities:

    1) The Board has “otherwise required” – through this “rule” or “guideline” – that patios follow the parking ratio. The County did not link to any text for this rule, or cite to a subsection in the Code. Does this matter? Does the patio operator need notice through publication?

    2) The Zoning Ordinance as it has been amended/is current today is substantially different than the version hosted on the County’s website (effective as of January 1, 2009). If this is the case, and the County can host a page specifically about the Westover Beer Garden, it can update the PDF file with the current Zoning Ordinance.

    Does the video of the public hearing shed any light on this?

    • cheryl hightower

      The thing is is that it is not operating as an outdoor cafe. Nothing is being served, but rather people are taking their beer to sit ouside, much the same way the ice cream shop customers take their ice cream cones outside and sit in the chairs.

      • not your bro

        Right, having live music in *no way* indicated it’s operating an outdoor cafe . . .

        Devin and Brosnan deserve each other. Both are inflexible.

        • Cheryl Hightower

          the music has not even started. compare apples to apples. clearly, the ice cream store down the street has outdoor seating in which to consume ice cream after purchasing it outside and the WBG has the same currently.

    • HC Carey

      I suspect–though I have no actual evidence–that complants may be coming from other merchants in the area. There are three other restaurants in westover, and another bar, and a thriving hardware store, and a post office, and a drug store, and an ice-cream shop, and a barbershop and chinese take out. They all share the same parking space and it’s increasingly tight. I would not be surprised if it were another merchant, though of course it could be local residents.

      I support the WBG and the market, use it often, and am glad it’s there. But the complaints of other merchants are not unfounded–that is, they shouldn’t be simply dismissed

      • Tackleberry

        My money would be on Ross, owner of Lost Dog/Stray Cat.

  • T.G.E.0.A….

    On the one hand, i feel for the neighbors. On the other, F the county zoning nazis.

  • Suburban Not Urban

    Folks need to think this through.

    So it would be OK if someone came along and zoned and built a place close to your home, that was X size and needed Y parking for that size establishment. Then a while later came along and demanded that they could double the size of the place with an outdoor patio(and that’s what we are talking about at the WBG, the patio is not like 10% of the place), that not only would demand 2Y parking but impact the quality of life in your home with noise on your property.

    The seasonal rules were a huge concession that were meant to allow some give and take so you could do a bit of stuff and not have to overhaul the parking situation – not sure a buisness model that depends on this stuff was ever the intent.

    In addition, I think some of the info above about the Use Permit is a bit off base – as far as I understand this stuff, If you don’t operate “by right”(aka want special exceptions/permissions – and I’m pretty sure that open air music venues are explicitly not allowed in the code) then you need a Use Permit( I’m pretty sure there is NOT a special kind just for Music) it’s just that the music is one element of the overall permit. The permit covers what ever the county cares for it to cover and is a negotiated(a give and take between the applicant and the county) agreement. I’m pretty sure a bunch of Use Permits do spell out the requirements on seasonality and use, but maybe not this one(probably should have).

    • Hal J

      Indeed, think it through. How often did the “crowd” around the firepits make any difference to the parking situation? The folks who utilized this area should not force 3 months closing.

    • HC Carey

      yes, thank you for this bit of sanity

  • Rick

    The parking rule part of this is so tricky because it’s a shopping center, but when you consider over half those businesses close by sunset, what is their defined number of spaces in the book? Should a bar, who’s business is mainly when the sun has set, be held to a portion of parking spaces while the barber shop, post office, Wells Fargo etc still have spots allotted?

    And SIX spots per table? The county hates anything bigger than a tandem bike, how many people still buy minivans?

    • Not so fast my friend…

      1 parking spot per six seats at tables. I wonder how many spots they have and how many seats. There’s a good amount of parking around there and they don’t have a ton of seats.

  • Flipper

    Many of these comments make you think that it is the neighborhood homes complaining, I have to wonder if it is Thai Noy, Lost Dog and Forrest Inn that are the complainants in this. No music is being played until April 1 so I don’t really see how a homeowner would be complaining about a few people standing around a firepit in cooler weather would be a problem. The zoning issue is hooey. Many of the people I know that frequent this establishment walk from their hood. Just don’t get it.

    • cheryl hightower

      you might be surprised, there are a few folks that are simply about winning

      • not your bro

        Like Devin Hicks.

        • drax

          Devin Hicks is trying to run a business, not just win a dispute.

          • Burger

            Wow…I am impressed.

        • Cheryl Hightower

          No, like the 1400 consumers who petitioned to support the WBG. Like the idea of Democracy where majority rules.

    • Cheryl Hightower

      The county clearly said they are responding to complaints made by neighbors. There is actually a police report that documents an unfounded complaint that came in this past weekend. There are some that are just ready to pounce on anything they can to cause a stir and take us right back to where we were months ago.

  • John Fontain

    Did or did not the owner agree to terms that required the beer garden to be closed for the winter?

    • Larchmont

      He, “expressed his intention”. And it sounds like after understanding what he was legally allowed to do he did it, he reopened the garden. So yes, he did agree, and I’m glad the garden will be open in the winter. I just wish we had some snow to enjoy sitting around the fire with while meeting some like minded neighbors. But, I’ll be even happier when the county is off his back and I can rock out this “spring season”!

      • Zoning Victim

        That’s somewhat over simplified. During the meeting, the subject of seasons came up around the 01:07:00 mark. The gentleman speaking for the county administration stated the Beer Garden must be closed for a season, and that season was not defined but “generally means” a season (winter, spring, summer or fall). He also said that the county expected that the season would be winter since no other season made business sense, and that not being closed for a season would be a zoning violation condition and violate condition #9 of the conditions for approval of the permit request. That condition states:
        “During the season that the outdoor café/Beer Garden is closed, the tables, chairs and outdoor bar shall be completely removed. The outdoor care shall not be open when the restaurant is not open for business.”
        The problem here is that the County Board obviously doesn’t understand the Zoning Ordinance or they would know that there is no legal requirement to be closed for a season; it doesn’t appear in the ordinance, anywhere. It is an arbitrary decision from the Zoning Administrator who wrote in his/her advice:
        • Based upon the Zoning Ordinance requirements, outdoor cafés are seasonal in nature because they are not permitted to be enclosed and because no parking is required.

        Through his lawyer, Barnes Lawson, Jr. , he announced his intention to request a clarification from the Zoning Administrator on whether or not having a fire pit with stumps on the patio and allowing people to sit out there if they wanted to would constitute being open. There was some banter about this on the part of the Chairman, but no decision was made during the meeting. I have no idea what happened from there, but the bottom line is this: the Zoning Administrator has no business making up rules like this without any backing of law and the County Manager and her administration were either ignorant or disingenuous in stating that the Beer Garden must be closed for at least one season because there is no legislative basis for this stance.

        • eg22201

          The County and the applicant aka WBG can agree to whatever conditions they want and they then have the force of law since the Use Permit is enforcable. The conditions don’t have to have basis in the zoning ordinance or any other law. If the Use Permit says that you can only have blue chairs, then you agree you will only have blue chairs. I wish Brosnan & co would be a little more solution-oriented, but sounds to me like WBG is renegging on a deal it made.

          • Suburban Not Urban

            That was exactly my point above.

          • MR M

            Actually, I am not sure that stands up logically or legally. What you are saying is that the Zoning Administrator has the right to violate county ordinances by assuming powers not delegated to him and putting in a use permit items that are either specifically not allowed by County ordinance or that are not mentioned?

            And what is the logic of the “advice” on seasonality, parking, metro (not bus, mind you) accessibility? Can something explain the logic (I am serious) because it escapes me.

          • Zoning Victim

            The problem is that condition was based on the belief that being closed for a season is a legal requirement for a cafe, which is simply not the case.

  • Eric

    This story crayy

    • cheryl hightower

      it really is

  • Civic Activist

    If the place wants to stay open, they needs to follow the Arlington Way: rename it the Sanctuary Cantina and serve only cerveza by Spanish speaking waiters.

    • not your bro

      Racism doesn’t get you anywhere.

    • MR M

      If you have sane thoughts, share them. Racism is not a sane thought and shows your ignorance.

      • Civic Activist

        Race and ethnicity are different — have a friend who is functionally literate check the dictionary for you. Zoing enforcement in Arlington has been ethnically biased for years.

        • Josh S

          Nice try.

  • westover market

    It’s ridiculous

  • Flyover_Country

    “And why is a Metro *rail* station important? Westover is a scant 0.8 mile from EFC Metro rail station, I’ve walked it. But there’s a bus stop right at the WBG’s front door and I’ve used it frequently. Is Arlington trying to discriminate between rail riders and bus riders?”

    It’s called the Comprehensive Plan and allows for greater density and mixed use near metro stations. It also calls for the preservation of single family homes and neighborhoods in other areas which pretty much by definition have a different set of expectations and rules. Finally, it looks to me like this is a special use permit which can be terminated if the terms of that permit are not complied with – eg22201 gets it.

    • drax

      Correct.

      But you know what? It’s pathetic that the neighbors think a bunch of restaurants, bars, stores, etc. are just fine there but one little extra outdoor bar is a nuisance. Other than the noise from music, it’s consistent with everything else in that shopping center and adds alot more to the neighborhood than it takes away. Sure wish I lived in walking distance of it.

      • rory

        Bars?

        Lost Dog and Stray Cat closs at 10 pm. They are restaurants, not bars.

        Is there any other place I’m missing? What do you mean when you refer to “a bunch of …bars”

        • Quoth the Raven

          Forrest Inn!

          • Crab

            It is sadly amusing to go by there at 10:30AM on a Sunday and see people already taking smoke breaks outside their front door.

        • drax

          I didn’t write “a bunch of…bars,” I wrote “a bunch of restaurants, bars, stores, etc.” which could mean just one bar and several establishments of the other variety. The larger point still stands.

  • Flyover_Country

    “What you are saying is that the Zoning Administrator has the right to violate county ordinances by assuming powers not delegated to him and putting in a use permit items that are either specifically not allowed by County ordinance or that are not mentioned?”

    Yes. You want to build a house. In this zoning district the county code setback requirement from the rear of the lot is 10ft, but you want to build w/n 5ft. You request a variance, a public hearing is held, everyone but your most effected neighbor is fine, they oppose it. To settle it, your neighbor says I’ll agree if you reduce the height from the max allowed by code (and thus by right) of 35ft, to 25ft. Zoning Administrator says, works for me. You either comply with the 10ft setback, or reduce the height to 25ft. Completely legal and happens all the time. Works the same with special use permits; you want a nonconforming use, you don’t get it by right, you get it by permission or permit. Most effected are given greater say (thus the installation of sidewalks, traffic calming et al – buy in is only required for the blocks adjacent to the project, not by all the neighborhood or county vote).

    • Zoning Victim

      Your analogy is wrong. The county staff went into a use permit hearing and stated that cafes must be seasonal; that’s not in the ordinance anywhere.

  • Flyover_Country

    Well, I wasn’t at the hearing (as I don’t have a dog in this fight); perhaps you were, and do. However, in that case at a minimum you’d have to show that there was a misrepresentation by the staff, that you reasonably relied on that information, and but for that misrepresentation you would not have agreed to the conditions in the SUP. Assuming all those facts, still doubt the board of zoning appeals, or any judge would sever that provision from the remaining conditions. At that point the permit would be rescinded or void, and the WBG would have to reapply and renegotiate with the county and the neighbors.

    At the end of the day, if you have to ask for permission, it’s not a right , or “by right”. You’re confusing building code permits where as long as you comply with the code and zoning, the county generally must issue you the permit. Special use permits are for nonconforming uses, and you must convince the county why to grant the exception to the current zoning. The bar is high for the applicant for a reason, and the burden is a heavy one to meet. The county is free to pursue any concessions it deems appropriate.

    If the county can require commercial developers to make a financial contribution to Arlington Public Housing Fund as part of the site plan approval process and the courts are good with that (nowhere is that required by statute, ordinance, or regulation), then I find it unlikely that they’d balk at enforcing a provision of a SUP calling for the permittee to close seasonally (even if not in any statute, ordinance or regulation).

    But hey, I’ll drink to that…..

  • http://nationleprechaun.com/ jinushaun

    The outdoor patio + parking rule doesn’t really make sense to me, but it would explain the scarcity of outdoor seating in Arlington. Sounds more like a proxy ordinance for a different problem. (Noise? Traffic? Something personal?)

    • Burger

      The lack of parking in Arlington is self imposed by the county board in its drive to eliminate the automobile. They regularly grant building permits without enough parking and routinely remove parking spots in favor of bikes and buses.

      • Josh S

        Routine is right.

        It’s an effort to rectify decades of excessive subsidies for automobiles while ignoring any other form of transportation. You still want to operate your car for every trip you take? Fine. But your share of the available resources will now be shared a little bit more equitably with those who choose to take other forms of transportation. And by the way, those other forms of transportation tend to have way fewer negative externalities than do privately operated cars. So they place less of a burden on society. So I guess that would be another way to look at the changes in standard practice when it comes to supplying parking – an effort to force car owners to pay a larger portion of the externalities they previously were paying little or nothing for.

  • Burger

    What is sort of amusing is the NIMBYs putting up a fight over a business that is trying to adapt to the current economic conditions. If it wasn’t for the beer garden, the Westover Market would likely be closed.

    Then given the layout (it is big but not big enough) and rent what other entity could fill that location…probably none. The only real option would be a CVS-type store – but that function is being served by the Rite Aid.

    Thus, more than likely there would be plywood windowed building and no tenant. That means less tax revenue, less traffic through the retail area and would mean an increase in potential vandalism given the vacant building.

    Parking is a red herring argument. How often does the parking lot behind the Westover Plaza fill up? And if it does fill up wouldn’t that imply that Lost Dog et al (bigger establishments) also fail the necessary parking requirements?

    • Josh S

      Despite disagreeing with you strongly in your approach toward what the county is doing to reduce parking requirements (see above), I agree with your analysis here about what is happening with the Market. Mom and Pop markets are essentially extinct. The existence of the Market in Westover contributes significantly to the identity and charm of that neighborhood. If it went, it is far more likely that a CVS would go in than anything else with equivalent charm and identity. (I don’t think the presence of the Rite Aid would deter CVS.) The other likely tenant – a Subway franchise. Boring. Depressing.

  • Question for EFC

    So let’s say in theory that we uprooted WBG and put it in Clarendon or Courthouse where there’s a patio/rooftop craze happening now. It’s easy to argue that these neighbors are being silly over in the world of East Falls Church area because it’s the only thing there of it’s kind and “what little could the neighbors be complaining about” but if WBG was in another area and didn’t want to follow the rules for patios and outdoor cafes, but they are then surrounded by businesses who do follow the rules and close down for a season, would you all still feel like they’re doing nothing wrong? And then don’t you think if the other businesses saw that and decided together to revolt and just stay open then don’t you think it’d make for a different situation?

    I’m not sure I think WBG is wrong for a lot of the reasons stated above, but mostly who are they hurting (I live right down the road and never hear any noise that is associated with WBG). But if they choose not to follow the rules, then why should anyone and let’s all just get rid of rules all together, right? I mean come on… it doesn’t work that way.

    • CW

      I kind of agree with some of this, and I will say that the county is at least being consistent, sort of – with respect to your first point about Clarendon/Courthouse, see the old saga of the American Flatbread outdoor seating. However, your “what if” is kind of a poor comparison because in Clarendon/Courthouse the businesses don’t seem to have these rules due to the metro location.

      • Crab

        It is also similar to the dog mural lady. Who was that sign hurting? She was technically violating an ordinance that many people do not agree with, but still violating.

      • Question for EFC

        I know for a fact that the rooftops have the seasonal ordinances in place even with closer distance to the metro… they must be shut down for 3 months out of the year in order to have their outdoor seating permit… but you’re right that I don’t know if it applies to the patios and ground level outdoor seating that many places have.

        Again, I’m not sure who I agree with on all of this, but everyone’s looking at it as this business and not Arlington restaurants in general, but if this business were among others like it, wouldn’t you want their zoning consistent? I don’t know, just throwing out another thought. :)

        • CW

          Yeah, I think the problem here is that on one hand we want rules that are consistent and are fairly and equally enforced, while on the other hand we want rules that aren’t ridiculous. At the high level, this seasonality rule is so patently absurd that it makes no sense whatsoever.

          • Question for EFC

            Agreed :)

            As a friend of one of the rooftop business owners, I know they feel the same way, but it seemed the threat of comply or don’t open it at all was their only option. This outrageously warm “winter” brought many people hoping they could sit outside and the restaurant gets blame for not allowing it when it’s not their call. :(

          • drax

            The rule is probably designed to allow restaurants to put tables out on the sidewalk without having to go through a tougher regulatory process. The “seasonal” part is probably part of the qualification, not a rule designed to keep them closed. So if the beer garden is “getting away” with having a seasonal cafe without having to meet stricter zoning requirements, it must qualify by being closed part of the year. If it doesn’t close, it’s not meeting the zoning law. I’m speculating here, but the point is that you have to look more closely and think it through.

    • cheryl hightower

      the issue is that the “rules” are completely unclear

  • CW

    What is funny is that, at the end of the day, to the people who don’t live in Westover or visit the beer garden (about 99.5% of the county), all these residents are going to do is succeed in making Westover known as the neighborhood full of grumpy old jerks.

  • Loocy

    Sounds like we really don’t know who is raising objections and/or reporting WBG for violating the conditions. Is it the neighbors? Is it the cafe/restaurants across the street? Does it matter?

    Parking is most definitely an issue there in the evenings. I recently tried to go to Thai Noy with my family and we gave up because we couldn’t find parking.

    Is it really that onerous for Westover Beer Garden just to follow the rules? Come on. They got special concessions to stay open, this feels to me like they are taking advantage. I like the WBG, but I’m not one of the people whose home or business is adjacent to it.

    • cheryl hightower

      THere is never a parking problem across the street. The WBG has never taken advantage of anyone or anything. The reverse may be true though of the parking across the street.

  • Tom Jones

    From the article:

    Hicks is now anticipating a fine of some sort for his defiance of the county rules. When asked if he would pay such a fine, he said he’d address that if the time comes.

    So the owner, if the reporter is not misrepresenting what he said, sounds as if he realizes that he is flouting the law. He doesn’t agree with how the rule is being enforced, so he’s ignoring it, fines be damned. That sounds like a losing strategy long-term.

    • Cheryl Hightower

      but it is NOT the law. it was guidance

      • Crab

        So you mean like a suggestion? They really just suggested that he close 3 months a year? Something like “we think you should close 3 months a year, but that’s just us talking, you can ignore it if you want”?

        • Zane Lamprey

          So it’s not the law, but it was the guidance given to the business by the relevant enforcement authority. Hicks’ decision to ignore the guidance is just asking for trouble. The fact that WBG or it supporters have mounted a PR campaign to shame the enforcing authority might be the right strategy. Or it might come back to undermine their ultimate objectives in the end.

          On a somewhat related note, I hope WBG is paying Cheryl Hightower, because she is really dedicated to this fight. She should at minimum drink for free at the beer garden this summer.

          • Sue

            The requirement to close for 3 months isn’t in the Market’s use permit and isn’t in the zoning ordinance (which states that outdoor patios have no parking requirements). It appears that the county is enforcing guidance from the prior zoning administrator as though it was policy.

            And I do agree that a keg of Hopslam should be tapped in Cheryl’s honor.

          • cheryl hightower

            why thankya, its just hard to resist responding to the ridiculous arguments…the only place in arlington you NEVER have a problem parking is at the Westover Shopping Center, ie. WBG

          • Jerome Garcia

            Hmm, I must have poor timing because I usually do have trouble finding a parking place in that area. I’ve circled the block several times before giving up in my quest to reach the Great Wall of Beer.

    • NGlebe

      I don’t know about the legal merits of the county’s position vs. those of the WBG, but it looks to me like the WBG wants to take this to court, or at least raise the issue to the level where the county realizes that it will have to defend its position in court.

      I’d guess that the WBG’s lawyer has advised that in order to get this matter in front of a judge, the WBG can either (1) become the plaintiff and sue the country asking for a declaratory judgment (or whatever they call it in Va); or (2) wait for the county to issue a fine and then, as the defendant, argue that there is no violation of law; hence the fine is improper.

      Under option 1, WBG is sure to incur attorney fees because it is taking action first (although it might avoid a fine). Under option 2, there is a chance that the county will back down, never issue a fine, and therefore legal fees are avoided.

  • hatesdrunkendriving

    parking minimums for beer gardens

    That just makes SO MUCH SENSE!

    Lets dedicate the property tax revenues from the parking lot to funding hs education on the dangers of drinking and driving.

    The war on urbanism – a tragedy to those who feel, a comedy to thos who think.

    • Crab

      Don’t let the name fool you. He is running a restaurant on the premises, and it is treated as such for zoning issues.

  • Pat O’Donnell

    This is a legal question. In forming opinions, y’all might compare the actual ordinance on “outdoor cafes” to the county’s public demands for permitting one.

    Here’s the relevant law:

    “Outdoor Cafes: Outdoor cafes, including any canopy or cover associated with such a cafe, shall be permitted within the required setback. Outdoor cafes within the required setback shall not be enclosed, except as specified elsewhere in the ordinance. Outdoor cafes may be permitted within public rights-of-way or easements for public use if a use permit is obtained as provided for in Section 36. Unless otherwise required by the County Board, outdoor cafes shall be exempt from any parking requirement. Outdoor cafes located in side or rear yards adjacent to or across an alley from an ‘R’ or ‘RA’ District shall not operate before 9:00 a.m. or after 11:00 p.m.”

    Here’s where you can find it: http://www.arlingtonva.us/Departments/CPHD/planning/zoning/pdfs/Ordinance_Section31.pdf

    But here’s what the county says:
    “An outdoor café can be open year-round if the following conditions are met:

    provide one parking space for every six seats
    be on private property
    be within 1,000 feet of a Metro stations

    An outdoor café that does not have parking is a seasonal use and needs to be close at least one season (three months) of its choosing.” http://news.arlingtonva.us/pr/ava/westover-beer-garden-updates-information-228033.aspx.

    Note that the county cites no ordinance at all as supporting its demands.

    • Jeff

      Pat,

      Good summary. The notion that the a outdoor cafe is seasonal comes from a a memo titled “Zoning Administrator Advice” dated November 1, 2010. This memo provides guidance as to what is to be considered an outdoor cafe. http://www.arlingtonva.us/departments/CPHD/planning/zoning/page78940.aspx.

      There are 6 points and it states that if the outdoor dining is inconsistent with the points then “the use is mostly likely not an outdoor café” and should be treated as the use to which it is associated, in this case a restaurant. From the six points the first one is the one that states that an outdoor cafe must be seasonal:

      “Based upon the Zoning Ordinance requirements, outdoor cafés are seasonal in nature because they are not permitted to be enclosed and because no parking is required.”

      The zoning ordinances related to outdoor cafes (Ordnance 31.A.11) has no mention of “seasonal in nature”. “Seasonal in nature” does not follow logically from the fact that café is not enclosed and because no parking is required. Furthermore, no where that I could find defined the phrase “seasonal in nature”. This is not defined in the ordinances that covers definitions or in any other document that I could find.

      So the county now has policy that has been set up by a memo, not codified in the zoning ordinances. The county should stop trying to enforce rules that does not exist in the ordinances and let the business decide on what days the outdoor café should or should not be opened. This is a small Arlington owned business that employs several people, raises revenues for the county, and is generally enjoyed by people in the community such as myself.

  • Cheryl Hightower

    http://arlington.granicus.com/MediaPlayer.php?view_id=2&clip_id=2288

    Its all clearly spelled out here with the EXTENSIVE accommodations and ensurances that have been made for nearby neighbors and says nothing about any requirement for the outdoor area to be closed for any period other than when the restaurant is closed. Anticipating closure for winter as a common sense conclusion, the tables and chairs must be removed. As weather is sometimes unpredictable, the mild winter did not call for closure, but rather allowed for extending the season and usability of the patio area. Note however, nothing is being served outside which to the average person notes an outdoor cafe.

  • Neighbor

    Went to this place once. Never again. Surrounded by 40-something parents who could talk about nothing else but their bratty kids and where their bratty kids go to school and what their bratty kids do in whatever teacher’s classroom. Oh, their bratty kids were also there running around.

    • ef yourself

      the hell did you expect at a neighborhood beer garden, one of the first of its kind in Arlington?

      • Quoth the Raven

        +1

  • Too Easy

    Hmmm, If the Lost Dog and Stray Cat patrons can park illegally at the westover shopping center parking area then why can’t the county get it’s head out of it rear and allow WBG patron to park at the Walter Reed /Westover library lot??

  • David Volz

    I live just down the street from the Westover strip of businesses. I often shop there and have found no negative impact from this beer garden. In fact, the overall flow of people and economic activity seem to have increased. As for the establishment itself, the patrons have always been friendly and neighborly during my encounters with them. This is exactly the kind of business we want in our neighborhood!

  • YTK

    The Beer garden is near the POST OFFICE, NOT residences — who is going to complain — the mail?

    • Carol_R

      Who wants a bunch of drunks hanging around their neighborhood? It isn’t a restaurant – it’s a bar.

      • Frankie V

        “Who wants a bunch of drunks hanging around their neighborhood? It isn’t a restaurant – it’s a bar.”

        “Surrounded by 40-something parents who could talk about nothing else but their kids…who were also there running around. [edited for clarity]”

        Parents and their kids = “Bunch of drunks”…yeah.

      • Daniel B

        Carol,
        I recommend you check out the food offerings. I’ve been there plenty without consuming a drop of alcohol. Don’t get me wrong – the beers are delicious too. But they also have:

        - The best BBQ in Arlington;
        - Outstanding breakfast food;
        - Daily meat specials featuring local farm-raised grass-fed meats (check it out on steak night or taco night);
        - Delicious bulgogi;
        - Better shrimp and grits than anyone else in the area;
        - A full kids menu; and
        - a heck of a lot more.

        The county board is either placating their tremendous grudge or is motivated by other factors, such as the influences of more well-connected businesses. There is simply no interest that is advanced by making everyone who wants to have a beer go inside.

        Frankly, I believe it may constitute a Section 1983 civil rights violation. Who wants Arlington to pay the attorneys fees for the lawyer that defends the Garden?

  • Alex

    As an insider looking out, I’ve been directly impacted by the disagreements between the WBG and the county. Through all this, my colleagues and myself at the Beer Garden (and Haus) have maintained a positive attitude about where we’re headed. The support of our community and patrons has uplifted our spirits. We believe in our product, our method of business, and that we’re also pleasing people rather than annoying them.

    Even so, The Beer Garden owners and employees are frustrated. There is no ordinance dictating the county’s recent enforcement attempts. They simply don’t have the authority to control our patio to this extent.

    The few neighbors that complain are, in my estimate, the main reason that the county is coming after us. This is understandable, but there are plenty of examples of other bars and establishments with patios in our county don’t comply with these “guidelines,” and aren’t harassed.

    So now are they trying to save face and appear fair? They made a weird decision the other day and had the ice-cream shop a couple doors down take in its 4 outdoor chairs. They’ve been sitting out there for a decade until now. What the heck?

    However, the county (after all that, hah!) probably isn’t out to get us. They are trying to comply with some vague rules in a not-so-simple zoning situation. We just wish they would take in consideration their actual impact on our business before making these ambiguously interpreted decisions.

    We have made an honest effort to compromise, comply and communicate. Soon, we’ll get along and thrive. Our community is serious about this, and so are we.

    • Daniel B

      Alex,
      They didn’t just make Toby bring in his four chairs and table – they also fined him $200.

      I wonder if Baskin Robbins at Lee-Harrison also got fined.

      The Dude does not abide! This aggression will not stand, man!

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