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Neighbor vs. Neighbor Over Restaurant’s Patio Request

by ARLnow.com July 9, 2010 at 9:40 am 3,341 32 Comments

Saturday’s county board meeting will pit neighbor against neighbor in a battle over a small outdoor patio space.

In one corner are the supporters and management of American Flatbread, the wood-fired pizza restaurant that bills itself as a “community hearth” and is best known for its locally-sourced, organic ingredients. In the other corner are county planners and a majority of local homeowners (others support Flatbread), who don’t want the restaurant to open an outdoor patio on their relatively quiet section of North 11th Street in Clarendon.

At stake for neighbors is the tranquility of the neighborhood and, possibly, the area’s steep property values. At stake for Flatbread is its viability as a business in Clarendon.

Restaurant owner Scott Vasko, who also owns the popular American Flatbread location in Ashburn, has been trying to get county approval for since he signed the lease last year. He says he has tried to find a compromise with the two main sources of opposition, the Clarendon-Courthouse Civic Association and the homeowner’s association president for the townhouses across the street, to no avail.

Vasko says he has offered to close the patio at 9:00 p.m. on weekdays and 10:00 p.m. on weekends. He would limit the space to 24 seats and not allow larger parties to combine tables. He would pay to extend an adjacent wall and to erect a gate in front of the patio. And there would be no music.

Civic association president Rich Dumas says the group wouldn’t have a problem with Flatbread and another restaurant in the same building, Screwtop Wine Bar, setting up sidewalk seating on the Fillmore Street. He also said that he personally wouldn’t mind the addition of seating that wraps around for 15 to 25 feet on 11th Street, which is one option the county board will be considering on Saturday.

Planning department staff will recommend the option that disallows patio seating but allows seating on Fillmore Street and 25 feet of 11th Street. That will provide outdoor seating for about four tables of two, a county planner told ARLnow.com

But Vasko says the patio seating was a major component of his business plan when he decided to come to Clarendon and without it, “we would honestly have to take a look at whether we could still be a viable entity.”

American Flatbread employs 24 people in Clarendon and pays nearly $40,000 in meals tax revenue to the county, he noted.

The few tables the restaurant would be able to set up on the sidewalk, Vasko said, would be helpful but, perhaps, too little too late. He says he was misled by the building owner, who reportedly recruited American Flatbread to be a tenant with the promise of an outdoor patio.

“We’re just trying to get what was originally offered to us by the building owner as an enticement to come in here,” he said.

American Flatbread has been recruiting its loyal customers to voice support for the restaurant. An online petition has garnered 369 signatures, and the restaurant plans to have supporters present at Saturday’s board meeting. But Vasko says his grassroots efforts received some unwelcome attention after ARLnow.com published parts of an emotion-filled email the restaurant sent to customers.

“I think it’s important for everyone to understand that the communication that was published was meant to be an internal publication,” he said. “I was not consulted before it went public, and really it was meant as a rallying cry for our supporters.”

As a homeowner who lives near his own restaurant in Ashburn, Vasko says he is “extremely sensitive to the potential effects of a restaurant” and wants to be a good neighbor.

“We cater to a lot of families who like to ride bikes, bring their dog, and sit outside and have a nice experience,” he said. “We’re not about staying open late, not about loud noise, not about being a drinking place… If given the opportunity to show what kind of neighbor we can be, I think we can allay some of the fears.”

“I’m probably the best neighbor you can want to have, because I do care about what goes on in the neighborhood,” he continued, noting that since opening he has spent more time in Clarendon than at his home and his first restaurant combined. “I’m here every day, I’m not an absentee owner.”

“This is not about American Flatbread,” Dumas countered. He said that the original 2004 agreement between residents and developers of the Zoso Building, in which Flatbread resides, specifically called for proposed patio seating area to be a vegetation-filled “buffer zone.”

While acknowledging that the proffer — the tit-for-tat legal agreement that allowed the Zoso building to be built — does not specifically address the issue of outdoor seating, Dumas said it would be bad precendent for neighbors to allow the de facto development agreement on the buffer zone to be pushed to the wayside.

“I think the bigger issue is the precedent it would set for all civic associations,” he said.

Before signing the lease, Vasko said his attorney did due diligence on the property and did not find any impediment to outdoor seating.

Had he known of the buffer zone agreement? “I wouldn’t have signed.”

  • Mike

    So the tenant felt he was misled by the owner. Why should the neighboring property owners suffer because he is dumb as rocks?

    • JR

      being lied to doesn’t make you dumb. that’s not a fair comment.

      • Lou

        But it’s also not a fair argument to admit that you were lied to and that is why the law should be changed.

      • Mike

        Sounds like the Flatbread tenant didn’t read the contract, or have his counsel review it. And if had a verbal contract with the owner he should sue the owner for damages.

  • Annie

    I don’t see how the owner can claim to be the “best neighbor you can want to havew” when he has engaged in a willful, destructive, campaign to demonize neighbors. The neighbors have supported a compromoize–outdoor seating along the perimeter. This reminds me of why it is such a bad idea to support any development project. In the end the building owner or tenant just blames their falied business plans on some vague “neighbohood opposition” rather than their own lack of dilligence.

  • Michelle

    I love small businesses, but this restaurant owner wants to have it both ways: he’s community-centered until you don’t agree to his demands. Then it’s ‘vilify the neighbors.’ His dispute should be with the building owner, not the residents who were promised a buffer.

  • Chris

    Those that live in that area and who benefit (via high property values and relatively easy resell options) from the close proximity of restaurants, boutiques, chain stores, etc…should not complain when a restaurant makes a reasonable request such as Flatbread’s. Arguably, the purported “compromise” offered by the neighbors is worse than the initial request. At least the initially-requested patio area is blocked by vegetation (i.e., no eye sore).

    • Thes

      Outdoor seating is not an eyesore, it is a pleasant and inviting urban amenity. I’m glad there is unanimous support for Screwtop’s outdoor seating, as well as for the part of Flatbread’s seating that won’t be 2 feet away from some poor homeowners back yard. Fladbread chose a location that was two blocks away from the “main drag” of Wilson and Clarendon perhaps to get lower rental rates. The owner not be surprised that location comes with limitations and that he may not get to set all his own terms.

  • mm

    I fully support flatbread in their outdoor seating initiative, which I feel will enhance the dining experience and add charm to this burgeoning corridor in clarendon.

    • Mike

      I fully support the rights of the property owners to insist upon zoning rights to be ENFORCED.

  • Lou

    The argument that they just want what the owner/developer promised them and therefore Planning Commission should change their ruling and vacate terms of the proffer is a very poor one. Pleading a victim’s case is kind of a sign of desperation and that you have no better case.

  • Sue

    The sidewalk seating out front compromise sounds fine. The owner should have done a better job in his “due diligence”. Sounds like he was sloppy/lazy or just felt entitled to do whatever he wants, regardless of the agreements made. His fault, neighbors shouldn’t have to pay for it.

  • Y T Karashinski

    This street is a DEAD street! I walk down it at all hours and there are practically NO people on it!! I say add the seating, the extra hieight to the wall, no music and let people sit and ENJOY being there.

    • Kate

      I have to agree. I walk by here on my commute home…I always worried about how AF was going to stay in business two blocks from bustling Wilson. I understand the concerns of the homeowner whose yard directly abuts the patio (although, in fairness, the owner moved in AFTER construction started on that building, at least I assume so by the for-sale sign, etc. from a few years ago), but it sounds like the compromises are good ones and directly address their concerns. I’m not sure why anyone except that homeowner cares. For the folks across the street, isn’t the back patio with a gate better than crowding the front/side walkway?

      • diane

        and, I agree with you Kate. I have tried for weeks now to understand why anyone other than that one homeowner, especially the HOA President of the town homes ACROSS the street is involved in this dispute.

        • AC

          If you actually lived in either the townhomes or the condos adjacent to AF, as I do, you would hear the noise that just everyday pedestrian traffic creates. This noise is in addition to weekend late night street and pedestrian traffic. It sounds like AF has offered some good compromises in an attempt to limit the additional noise outside seating would create, but there is no denying some additional noise will be created. That noise does carry quite well to nearby residents. This is to be expected in a high density neighborhood, but to say this location is “dead” is not correct. \

  • Anthony

    I just drove by there. It an unreasonable request on the part of Flatbread. The patio is practically in people’s backyard. If I were living there, I would vote against. Further, bashing the neighbors and/or association president will not get you anywhere.

  • BS

    Living in Clarendon is urban living at it’s finest
    and adding outdoor seating for Flatbread only
    enhances the urban living experiencetie. The owner
    is asking for reasonable times/tables and has invested
    a lot in the community, so I say approve his very
    reasonable request, and stop the posturing.

  • Katie

    Forget posturing, stop apostrophe abuse!

    • MB

      😀 So Arlington.

  • Jonathan

    I’m sure this guy DIDN’T want his ugly us-vs-them “internal” email made public. He seems to publicly go on and on about what a good neighbor he is, while privately stabbing his neighbors in the back. Should the neighborhood pay because his landlord made a bunch of empty promises? Let’s be straight here – Flatbread is running a business and won’t hesitate to throw the neighbors under a bus to make a buck.

  • Dave

    Fireworks Pizza in late July! HUGE Patio! Much Better beer and pizza and MUCH more reasonable prices. Started in Leesburg and is very much a “small business”. This place isn’t even that good so hopefully the owner concedes and packs it up. Hopefully a 7-11 replaces it.

    • Mike

      Amen. Flatbread pizza blows.

  • Chris

    Folks who live in this “urban” environment can’t have it both ways. Some noise and foot traffic are par for the course. Flatbread’s proffered compromise is imminently reasonable. Certainly there are bigger issues in your lives. And I wonder if the “buffer” agreement is even enforceable? Is it a contract between the homeowners and the building owner or simply a promise? My guess is it is the latter. And I also wonder how many homeowners reasonably relied on the “buffer” promise when purchasing in the neighborhood (assuming they even knew about it). Most likely few did. They moved there to be near the action and/or the Metro and/or in a decent school system. These cries of “objection!” ring a little hollow in my opinion.

    • Thes

      Chris, a restaurant owner who opens up adjacent to a single-family home can’t have it both ways, either. He needs to accommodate reasonable expectations for his neighbor’s back yard. The buffer agreement is not a contract or a promise, it is an adopted part of the zoning *law*, previously *proposed by* and agreed to by the building owner. It was put in place after years-long negotiations between the neighbors, county government and the building owner, in exchange for extra height on that building.

      These are people who specifically chose not to live in condos or apartments on Wilson Boulevard, but instead a few blocks away where they could have porches and a yard. They are willing to compromise and support outdoor seating on parts of the sidewalk. The restaurant owner ought to respect his neighbors and accept their reasonable offer of compromise.

      • Chris

        Thes, if you (or someone else) have the specific “buffer” language, please post it. From the article above, it doesn’t seem clear cut that an outdoor patio violates the “law,” per se. I appreciate the insight. I am curious as to what part of Flatbread’s compromise offer fails to mitigate neighbors’ concerns? What was expected/wanted with regard to a “buffer?” Buffer from noise, crowds? It seems to me the spirit of the “buffer” agreement is not threatened by Flatbread’s proposal, in which case no precedent is really set, unless the “buffer” zone was meant to be completely void of any objects and/or noise (note, Dumas acknowledges that an outdoor patio may or may not be covered by the agreement). In other words, is the perfect the enemy of the good here?

        • Mike

          Thes is correct (for once). Call the Planning Commission. They have all the relevant documents.

        • Thes

          Chris, the exact terms of the buffer can be found in the adopted zoning proffer itself, part of which includes pictures and drawings of the buffer, all on file at the County Library. It was also extensively discussed and explained at ZoSo building’s County Board hearing on July 6, 2004, also available at the County Library (unfortunately, the County removed five years’ worth of County Board videos, including this one, from its website recently). The approved proffer was for trees and plants, and not a patio. The empty patio was substituted after the Zoning Administrator ruled an empty patio was about the same thing as trees and plants. The same official (well, technically by that time the official was replaced with a new one) then ruled that 30 nightly dinner guests was NOT about the same thing as trees and plants, and that the County Board would need to change the law in order for it to be allowed.

          • Chris

            Thanks. Such information informs the discussion (at least here). However, I am unclear how the neighbors’ compromise offer is really a “compromise” since their compromise offer does not involve the “buffer” zone at issue. Clearly, the parameters of the “buffer” zone is up to interpretation (if by nobody else than the Zoning Administrator) so the question really is does Flatbread’s compromise offer violate the spirit/intent of the agreement. If the parameters/intent of the buffer zone is that it is to remain completely void (other than vegetation), then so be it, but I get the sense that there is some wiggle room there (otherwise why would there be a need to “rule” that 30 nightly dinner guests does not meet the spirit of the buffer zone).

          • Novanglus

            From the 2004 County Board minutes where the building was approved:

            “The landscaped open space on the site would be 8,506 square feet or 17%. Most of the open space would be used as a buffer between the proposed building and the one-family residential neighborhood located to the east of the site. The width of this buffer ranges between 25 feet and 48 feet”

            I feel sorry for the restaurant owner. Both his lawyer and his landlord screwed him. I think he has a good cause for terminating his lease or at least requesting renegotiation.

  • Robert

    Look, anyone who is familiar with the Arlington development process understands that silence on outdoor seating in a project that expected to have restaurants speaks volumes. Hardly an oversight. I would say the builder did not request it because he knew it was a part of his buffer condition. Without that buffer condition, he would not have been granted approval to build. I think the case is closed on this one. It’s unfortunate that American Flatbread got a raw deal – I actually like their pizza and hope they are able to stick around for a long time.

  • Quick update before a larger story on Monday: The board voted 4-1 to allow Screwtop’s sidewalk seating request and allow sidewalk seating for American Flatbread on Fillmore Street and 25 feet of 11th Street. Flatbread’s request for patio seating was denied.


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