Advisory Neighborhood Commission 6B

Minutes of Regular ANC Meeting

April 12, 2005

Commissioners Present: Julie Olson, Will Hill, Antonette Russell, Neil Glick, Scott Cernich, Ken Jarboe, Francis Campbell, Mary Wright, and Sandra Brown Thomas, who joined later in the meeting.

Commissioners Absent: David Sheldon and Executive Director, Bert Randolph

Chairperson Scott Cernich chaired the meeting and the Commissioners introduced themselves.

There was a quorum for conducting business.

Adoption of Agenda

Commissioner Jarboe stated that he wanted to add under Planning and Zoning. The Department of Transportation has come out with new procedures for Public Space Permit Review.

Commissioner Olson wants to add under Planning and Zoning the issue of new parking and ticketing rules for discussion.

There were no objections to adopting the agenda as amended. Hearing no objections the agenda was adopted as amended.

Community Speakout

A gentleman from the community rose and stated that a business on 8^th Street has dilapidated signs outside, who is a good business neighbor and wanted to know if there was any funds available to assist small businesses improve the looks for their outsides.

Commissioner Cernich suggested that he might speak with the Capitol Hill Association of Merchants and he might also speak with Bill McCloud at Barracks Row Main Street for assistance. Commissioner Glick provided the phone number for Bill McCloud’s office 544-3188.

A gentleman from Watkins Recreation Center stood and stated that he has been volunteering for the past two to three years with the center to help kids get involved in activities to keep them off the street and he is looking to find funds for registration, uniforms, and other things and wanted to know if there was any way the ANC could help. He stated that he had brought some flyers that he would like to distribute.

Commissioner Cernich invited him to do so and to provide the Commissioners with copies, which he did.

Commissioner Jarboe asked the gentleman is he was aware of the Capitol Hill Community Foundation, which he was not aware of. Commissioner Jarboe told him that this organization does make grants and asked him to meet with him after the meeting and he would give him the details on how to contact them.

Commissioner Thomas also stated that she too have been seeking funds for similar type of youth programs and that she will also be meeting with Commissioner Jarboe to get the information on potential funding sources.

Community and Commission Announcements

Commissioner Glick announced that this coming Saturday from 9:00 a.m. until 12 noon they are having a Community Cleanup at Parking Lot 8 at the DC General Hospital to cleanup around the Anacostia Waterfront and he invite all to come and join them. Gloves and need materials will be provided.

Commissioner Campbell stated that Ms. Noble of Ward 7, whose daughter was killed a number of years ago, that there will be an airing on FOX News’ Cold Case Files on April 16^th. He stated he has one copy of the flyer pertaining to the program and he will make copies for everyone interested and he will post it on the Internet. Mr. Noble would like for anyone having any information regarding this issue to please contact their agency.

Also on April 14^th there will be a Parkfield renovation meeting, which is a new school building that is going to be at the Bethesda New Life Gospel Church at 750 Kenilworth Avenue, NE. He will also make copies of the flyer and if anyone is interested they can also give him a call at home (202) 543- 2528. He will also post this information on the Website.

There were no community announcements.

Presentations

DC Water and Sewer Authority – Lead Services Project – Karen DeWitt, Director of Public Affairs.

The Commission was informed the Ms. DeWitt was no longer with the DCWSA. Ms. Dianne Saunders was replacing her as the presenter and she is with the Construction Management Group.

Neil Cavanol, Program Manager for CM4C Construction Project for DCWASA was the speaker.

They have been working with DCWASA for Lead Services Project for the last year and they are working on FY2005 contracts now. They have replaced over 1700 lead services. In FY2005 they have scheduled 2700 replacements, at present they are at 1700 completed.

He discussion was regarding the Lead Services Replacement in the various neighborhoods and what could be expected. The construction process is broken down into various steps:

1. Notification Process - 45-day notification letter, one for home owners and the other is for tenants. Then a two-week notice.
2. Posting of No-Parking Signs – 72-hours in advance
3. 2-days prior to contractor starting – Tag on door indicating they will be coming to your address to begin work, with an explanation of what to expect.
4. Miss Utility Markings – Safety feature – indicating where underground utilities are located.
5. Test Pit – Determine if there is a lead problem.
6. Construction
7. Sample Kit left after construction.
8. Flushing of lines.
9. Cleaning of Screens.
10. Restoration (replacement of grass, settlement, sidewalk, and etc.)

Anacostia Riverwalk Trail – Al Miller – Project Manager

They are in the process of going out to bid this summer for the first part of the trail, which will go from the Naval Yard and 11^th Street up to Benning Road. It will include both various cross sections. They will begin building the trails this summer. He reviewed the schedule for each phase of the project. He also provided a more detailed review of the various features that will be a part of the project. He also stated that the Naval Yard has completed their work, but discussions are being held to coordinate how their section will blend in with the Navy Yards’ work.

Planning and Zoning Committee

Committee Chair, Commissioner Campbell presented the Committee’s report as followed:

1) HPRB Case #05-193: 1022 Pennsylvania Ave., SE - Demolition & Construction of a 5 Story Apartment Building

Presenting: Mr. Sassan Gharai Managing Director of S.G.A. Architects. Inc.

Applicant proposes to build a 5 story apartment building at 1022 Pennsylvania Ave S.E. Site is presently a operating shell gas station, to be demolished at some time in the future and replace by a 22 – 24 unit apartment building with 20 parking spaces, 5 on grade and 16 underground spaces accessed by a ramp located in the rear of the project in the alley. Units will be approximately 1000 –1100 sq. ft. The lot is zoned C2A with a possibility of ground floor units be converted to commercial use in the future. At present there are no restrictions on the use for commercial and/or residential use.

Unlike previous submissions the building will now be red brick with one entrance on 11^th St and one on Pennsylvania Ave with trash pickup in the rear. Neighbors expressed some concerns about the project regarding the height and parking. Regulations state there must be (1) one space for every (2) two units and with the present configuration of 20 parking spaces exceed the requirements of 1 per 2 units. Other concerns regarding soil/site contamination but applicant shows last test done in 2004 showed “clear” ground water, also Shell Oil Company will decommission the site and soil will be excavated with “clean” backfill brought in. The last concern of neighbors was that once construction starts that steps should be undertaken to address potential rodent abatement problems, which may be caused by the disturbance of the rat’s underground burrows. Included in this plan should be steps to exterminate and/or minimize this potential rodent problem.

With these problems and concerns addressed and no other questions or concerns from audience or commissioners the committee recommends the ANC support this application.

There was no additional discussion or new information regarding the application. Chair Cernich stated that this matter comes before the Commission as a recommendation by the Committee it requires no second and moved to a vote. The vote was 9 to 0 (unanimous).

2) BZA # 17313; 924 G St. SE

Application of Edward Ertel & Jennifer Squires for lot variance

Dennis Conners representing Edward Ertel

Lot is 1452 square ft. with the lot occupancy presently at 76%, a corner unit. Applicant is requesting a variance to occupy 99% by adding an addition to a single-family row house with an adjourning courtyard separating the main structure from a carriage house.

There is no alley access and the neighboring house to the west has no windows. The addition will not adversely affect light, air or privacy of the adjourning neighbors.

Applicant has submitted, with the application, numerous letters of support from affected neighbors, twelve (12) total. As there is no objection to the proposed addition from affected neighbors or other related issues the Planning & Zoning Committee recommends this application to the full ANC for support.

Commissioner Jarboe stated that he would vote in favor of the application, but he wanted to raise a concern because the Commission would be doing something that is a little unusual, the Commission is basically allowing a something to have 100 percent lot occupancy, which is well outside normal variances. He did not like the idea of setting a precedence, but he will support the application because first, it is a corner unit and a lot of corner lots in the area rap around already, which means they occupy 100% of the lot, and second it is a small lot and he had been told that if it was a regular size lot they would be well within the normal lot occupancy ratio. Therefore, since it is a small lot it fits the variancy test. He also pointed out that no one was being negatively affected by this construction. He also stated that he felt the applicant may have a hard time with BZA, but that is their battle.

Commissioner Campbell stated that in the original plans there were plans for underground parking, no plans or mention of this parking area were submitted or discussed with the Committee and as such, no support or consideration should be construed from the omission of said parking area. Commissioner Jarboe added that it was his understanding that the parking area was no longer a part of the plan, which Commissioner Campbell agreed that that was his understanding. Commissioner Campbell asked the application if plans that include the underground parking were what will be submitted to BZA, and the response was that the parking area was not a part of the BZA application. He further stated that Historic Preservation and DDOT would handle parking area separately. Commissioner Campbell asked Mr. Conners if he was aware of the fact that he will be required to come back before the Commission to discuss the parking area. He responded that he did.

Commissioner Jarboe seeking to make sure everyone understood what would be submitted to BZA, asked if the plans he is submitting to BZA at this stage does include the curbcut. Mr. Conners’s response was yes.

Commissioner Campbell informed Mr. Conners that the only thing the Commission was supporting, at this time, is the use of the land for lot occupancy and there is no support nor has there been any discussion at this point regarding the underground parking area, which Mr. Conners acknowledged.

Commissioner Jarboe stated for the record that BZA will not decide on this because this is a HPRB issue, he was disturbed that they were going ahead with the underground parking, because during both the informal and P&Z Committee meetings that this ANC would strongly oppose any new curbcut. He further stated that had they come before the Commission with this as part of the BZA they would not have supported it.

Mr. Conners responded that they would have much rather preferred to put everything before every committee, starting with HPRB and gone through the whole process, but the HPRB staff recommendation was to go ahead and seek the area issue first and then seek the overall project approval. He stated that the area (lot occupancy) was not contingent upon the underground parking issue.

Commissioner Olson asked if this action meant that they would have to come back before the Commission because of the HPRB case, and Commissioner Jarboe’s responded with a yes.

Commissioner Campbell asked if he meant just the underground parking and Commissioner Jarboe stated that it would be for the entire design project.

Commissioner Thomas asked why the entire design project was not presented to the P&Z Committee. Mr. Conners stated that it was their intention originally to include everything in their request, but BZA told them that it was not a variance issue, so it was submitted separately. He further stated that HPRB did not reject it in the first place was because this site had formally an existing curbcut and it would be potentially a relocation of a curbcut.

The Chair stated that this comes before the Commission as a recommendation from the Committee thus requiring no second. The Chair restated that they were voting to no objections to the variance, but at this time was not dealing with the underground parking issue. A vote as taken and the vote was 8-0-1, with Commissioner Jarboe abstaining.

3) PS # 11403: 1391 Pennsylvania Ave., SE

JPI, Jenkins Row Project – Lay-by and Driveways

John Beggert representing JPI

Applicant is submitting an application for 1 new Lay-by and 2 Driveways at 1391 Pennsylvania Ave the site of the Jenkins Row Project and the future Harris Teeter. One driveway is for the loading dock to Harris Teeter and the other driveway is the entrance for residential parking to the Jenkins Row Condominiums, which is separated from the existing alley. Per the agreement there will be no loading for the Harris Teeter on the Pennsylvania Avenue side from 3-6:00 pm.

The committee recommends the full ANC approve the application with the provision that a study of the traffic patterns along Potomac Ave be conducted to identify any potential loading and unloading traffic concerns associated with this entrance being located across the street from the Public Charter School.

Commissioner Campbell asked if any one representing JPI was present and if they had any additional information to provide the Commission.

John Beggert rose and stated that he wanted to add some clarification. There is a new curbcut on Pennsylvania Avenue for Harris Teeter loading area, and there is a relocation of an existing curbcut for a Harris Teeter retail parking, and there is a new curbcut for the residential driveway. So there will be two (2) curbcuts on Potomac and one (1) on Pennsylvania.

Commissioner Jarboe asked just for the record, if this was outside the Historic District and the response was that he was correct.

Commissioner Campbell asked Mr. Beggert if he felt there would be any problem getting the traffic study done. Mr. Beggert responded by saying that he had no problem requesting it from DDOT and they have had good conversations with DDOT before and don’t see a problem, but the ultimate decision rests with DDOT. He stated that they understand that traffic will be a challenge on Potomac Avenue during and after construction and they will be there for the long haul and will do everything to address any traffic problems that may arise.

The Chair asked if the Committee’s report recommended that JPI or DDOT conduct the traffic study. Commissioner Campbell stated that it was for JPI to make a formal request to DDOT to perform the traffic study.

Mr. Beggert asked that the ANC assist him in making the request of DDOT for the traffic study, and the Chair stated that the ANC would do so.

The Chair stated that this comes before the Commission as a recommendation from the Committee thus requiring no second. The Chair stated that they were voting to adopt the Committee’s recommendation to approve the application with a provision that JPI request that DDOT perform a traffic study along Potomac Avenue. The vote was as taken and the vote was unanimous (9-0-0).

4) PS # 11621 1901 Independence Ave. SE

St Coletta – New driveway

Stephen C.Karcha Senior Associate of Advance Project Management, Inc., Representing St. Coletta.

Applicant submits an application for a new driveway at 1901 Independence Ave, the site of the future St. Coletta’s School. Application drawings shows driveway construction on Independence Ave and the installation of a new driveway apron, 32 ft. on the east side of 19^th Street and a 30ft driveway on Independence Ave. SE. Although the committee has no concerns regarding the Independence Ave driveway there are considerable concerns voiced by the Commissioners and the public regarding the 19^th St driveway. As St Coletta’s has been approved by the City Council, a codicil exist which states that the 19^th Street driveway be configured so as to prevent bus traffic exiting the St Coletta’s school from entering Burke Street, which is directly across from this exit point, and to only exit north onto 19^th Street. Despite assurances from Mr. Karcha that the 19^th Street driveway will only allow egress onto 19^th Street and not onto Burke Street, there exists considerable concern from both the committee members and members of the public as to the contrary.

Along with the submission was a copy of a letter from Ward 6 Councilmember-Sharon Ambrose, presented by Mr. Frank Zampatori, addressing boundary lines and construction issues. With these concerns in mind and questions regarding the construction of the 19^th Street driveway/parking pad in question, the committee recommends that ANC 6B approve the Independence Ave driveway. Additionally, the Committee recommends that ANC 6B withhold approval of the 19^th Street curbcut until the driveway apron is angled northward so as to prevent buses from crossing 19^th Street onto Burke Street.

Commissioner Campbell asked if Mr. Karcha was present and if he had any additional information.

Mr. Karcha was present and he wanted to submit some additional information. He stated that the issues that were raised at the last meeting dealing with the fence, locked gate and the sign have all been addressed. He then stated that they have requested that the driveway apron be angled so that it directs traffic to make that right-hand turn. He stated they scheduled a meeting with Karen Pollock at DDOT and they did approve the modification to their drawing, and he provided the Commissioners with a copy for their review, which he reviewed with them.

Commissioner Russell asked which line had actually been moved, as she was under the impression that they were talking about moving the north line. Commissioner Campbell and Mr. Karcha showed Commissioner Russell exactly what actions were taken in modifying the drawings. Mr. Karcha further stated that there is a 6-foot radius, as a minimum, that Karen Pollock would allow.

Commissioner Jarboe asked Mr. Karcha if he knew what the length of the buses were that would be used. Mr. Karcha responded that he thought they will be the standard size of 13 to 15 passenger size.

Commissioner Glick stated St. Coletta has lied to the Commission on several occasions and he is afraid that if the Commission supports this that they will go out and say publicly that ANC 6B is supporting St. Coletta, therefore he will be voting against the Committee’s recommendation and he encouraged the other Commissioners to do the same.

Mr. Karcha responded by stating the he has not been before the ANC representing St. Coletta’s application and cannot speak to the past activities. The only thing he can address is what is before the Commission now. He reiterated what he had stated at last Tuesday’s meeting and that his position was to obtain permit approvals and oversee construction of the project and make sure it is done properly and not affecting the neighbors. He further stated that he had three (3) concerns that were voiced at the last meeting and he give his word that they would be addressed and they were addressed this week.

Commissioner Glick commented that the comments were fine, but that’s a verbal agreement and it would not hold water in a court of law.

Mr. Karcha stated that he had met with the people at DDOT yesterday (Monday) and reviewed the sketches for the new apron that will be sent to Public Space for approval. He also suggested that the ANC, when submitting its letter to DDOT, could include a copy of the proposed revision to ensure that everything is the same.

Commissioner Jarboe stated that he wanted to know is this modification would satisfy the requirements that would prevent buses from crossing over to Burke Street.

Commissioner Campbell joined in by adding that this was a verbal agreement/endorsement and that ANC should not support it until it is formalized in writing and confirming that this angle would not be changed at any point in the future. This is simply what the Committee recommended.

Commissioner Jarboe also asked Mr. Karcha if was confident that the new angle would prevent buses from crossing onto Burke Street.

Mr. Karcha responded that this was the minimum that Karen Pollock would accept.

Commissioner Jarboe stated that he was willing to support the Committee’s recommendation as written and that the Commission would send the new drawings to Public Space.

Commissioner Campbell reiterated that the Commission would support one curbcut but not the new curbcut on 19^th Street, until the new plan is sent in to Public Space outlining the agreed to changes.

The Chair confirmed that once the new plans are submitted to DDOT in writing, St. Coletta would not have to come back to the Commission for approval.

Mr. Karcha asked if the commission’s letter could be modified to show that his plan reflect the sketch so that there is no confusion.

Commissioner Jarboe responded the Mr. Karcha that the Commission could send in the sketch along with its official letter.

The Chair stated that this matter was coming before the ANC as a recommendation by the Committee not requiring a second. The Chair stated that they were voting to adopt the Committee’s recommendation that the ANC support the application for the Independence Avenue driveway and withhold the approval of the 19^th Street curbcut until the driveway apron is angled northward to prevent buses from crossing 19^th Street onto Burk Street. The vote was vote 8-1, with Commissioner Glick in opposition.

Mr. Karcha informed the Commissioners that if there are any issues in the future to please contact him.

5) PS# 11664

Placement of Piggybanks for Education

Nancy Golosman representing Capitol One Financial

Ms. Nancy Golosman presented the “Piggybank” program to the committee, which explained that 15 fiberglass piggybanks, similar to the Panda & Party animal structures, seen in the past, will be stationed throughout the city with one outside of the Folger Shakespeare Library & one outside of the Cosi coffee house located at 301 Penn. Ave SE. Students from area middle schools will decorate them. An additional program, running in conjunction with the Piggybank program, is Stash Your Cash, which will teach middle school students basic money management skills. Also a $5,000 donation will be awarded to each school which participates in the program.

Capitol One is seeking the support of the ANC to display the piggybanks in these two locations in 6B to help educated youth in the importance of financial planning.

The committee recommends that the full ANC support the applicant with one suggestion, that Capitol One consider changing the location of the Folger Library statue to the Eastern Market Street metro location, which would possibly have a higher visibility than the Folger location.

Ms. Golosman rose and stated that they had taken the ANC’s recommendation and have made plans to put the second piggybank at the Metro stop. They have since submitted their revised plans to DDOT and provide the Commissioners with the Metro location plan for review.

Commissioner Jarboe offered a friendly amendment to the Committee Report to support the new location change.

Commissioner Glick seconded the motion.

The Chair asked all in favor of amending the Committee Report to raise their hands and the vote was 8-0-1, with Commissioner Thomas abstaining.

The Chair stated the Committee Report was coming before the Commission, therefore not requiring a second. All in favor of adopting the Committee Report as amended were asked to raise their hands and the vote was 8-0-1, with Commissioner Thomas abstaining.

6) PS # 11665: 1359 C Street SE – Erection of Gazebo

Sonja Sweek, Owner

Applicant is Sonja Sweek who is applying for a permit to occupy Public space for the erection of a Gazebo at 1359 C. Street SE.

The property is located outside of the historic district of Capitol Hill and as such there are no objections by HPRB. The structure will be approximately 12 ft. tall and 8 x 8 ft. wide. As the owner will be rehabbing the building and façade in addition to planting 2 trees and has formed an LLC, “The Gazebo” the structure is in keeping with the theme.

As there are no objections from HPRB or BZA the committee recommend the support of the full ANC for this project.

Commissioner Cernich asked the applicant why the project is an LLC.

Ms. Sweek responded that the project is an apartment building that she owns, thus the Corporation.

The Chair stated that the Committee recommendation comes before the full ANC in the form of a motion not requiring a second. Therefore, all in favor of the supporting the recommendation were asked to raise their hands and the vote was unanimous (9-0-0).

PS # 11667: 419 8^th Street SE

Tandoor & Grill – sidewalk café

Amir Ehsam, owner

Applicant Mr. Amir Ehsam is applying for a public space permit for a sidewalk café outside of the Capitol Hill Tandoor and grill, located at 419 8^th St. SE. It will consist of three (3) tables and six (6) chairs. The establishment is located in the historic district and has HPRB approval submitted with the application. It will be an unenclosed structure.

As there are no objections from the committee members the application is submitted to the full ANC with a recommendation of support by the committee.

The Chair stated that the Committee recommendation comes before the full ANC in the form of a motion not requiring a second. Therefore, all in favor of the supporting the recommendation were asked to raise their hands and the vote was unanimous (9-0-0).

Public Space Review Process:

Commissioner Jarboe stated that on April 1^st DDOT sent out a press release that he did not see until a couple of days ago, at which time he saw an e-mail in which DDOT is proposing to change the Public Space Permit Process. The proposed changes would make the process very similar to the HPRB process where the staff will be able to signoff on a lot of the issues. Using this process a lot of the issues the Commission has dealt with would no longer be necessary. The question however is they wanted comments back by today and there is some questions in some other ANCs as to how this may effect the ANCs, and whether the ANCs will receive notices, and what the appeal process will be, can ANCs step-in where there is controversial public space application or whether or not the ANCs would even know if there was a controversial public space application being considered prior to actual action being taken.

He further stated that it is not clear exactly how DDOT will proceed with this as a rule making. It is conceivable that the Mayor could sign an Executive Order because it changes the internal structural process or they could send it out for 30-day comment on the DC Public Register. He is of the opinion that the ANC should at least take a look at this issue and talk with the people at the Public Space Committee and find out what this will do to the ANC’s workload, how ANC would fit into this process such as do they provide the Commission with advance notices and the other issues previously mentioned.

Commissioner Jarboe recommended that the information be published in the DC Public Register and go through the regular 30 day review process rather then just have the Mayor signoff on an Executive Order, therefore he proposed that the ANC send a letter to Dan Tangerlini at DDOT strongly urging them to make this a formal rule making process thereby giving ANCs at least 30 days to get comments back on the proposal.

Commissioner Cernich seconded Commissioner Jarboe’s motion. There were no additional questions regarding the motion.

The Chair asked all in favor of supporting Commissioner Jarboe’s motion to request notice and comment on the rule making on the proposed Public Space Regulations to please raise their hands. The vote was unanimous (9 to 0).

Transportation – New Parking and Ticketing Rules:

Commissioner Olson stated she had spoken with a neighbor on 5^th Street and stated that he had been told by Parking Enforcement people that they are not allowed by their office to ticket Maryland and Virginia tagged cars that are parked within two (2) block of a metro station. So basically, Maryland and Virginia cars are getting a free pass if they are parked within two (2) blocks of a metro station. She stated that she does not think this situation is right and that the ANC should write a letter to Dan Tangerlini at DDOT saying that the Commission thinks this is wrong and that a discussion of this issue is desired and to determine if this is true or not and righting it if in fact it is true. The people in the city are being ticketed for parking in the spaces and it is totally unfair to allow the people from Maryland and Virginia to not pay the same price. In summary, her recommendation is to send a letter to Dan Tangerlini and ask him to explain this situation.

The Chair stated that the first action the Commission should take is to write a letter to Dan Tangerlini asking for a clarification, explaining what the Commission had heard and asking for further information.

Commissioner Glick recommended that the letter also be sent to the Department of Public Works who handles parking enforcement.

Commissioner Olson’s motion was seconded by Commissioner Campbell.

The Chair stated that all those in favor of Commissioner Olson’s motion to seek clarification of the parking enforcement to raise their hands. The vote was unanimous (9-0).

ABC Committee

Commissioner Wright, Committee Chair, read the Committee Report:

Levi’s Port Café

Levi’s Port Café located at 1102 8^th Street, S.E. is requesting a stipulated CR license.

The Committee voted to not oppose this stipulated license.

Ms. Marie Chavez was in attendance representing Levi’s Port Café.

Commissioner Jarboe confirmed with Ms. Chavez that she was taking over the old Port Café and he asked if she was seeking to use the old license or was she applying for a new license. She responded that she was seeking a new license. She is basically looking to operate the business under the same operational requirements. However, at some later date we probably will return with an application to modify her license.

The Chair stated that the recommendation to not oppose the stipulated license comes before the Commission as a motion not requiring a second. All those in favor of the recommendation to not oppose the stipulated license recommendation for Levi’s Port Café were asked to raise their hands. The vote was unanimous (9-0).

The Ugly Mug:

The Ugly Mug, located at 723 8^th Street, S.E., license 71793, Application No. 60895, Class CR, requests an extension of their hours and to have recorded music or a DJ.

The Ugly Mug seeks ANC support of a substantial change to their license which will include 1) the sale of food and alcohol until 2:00 am on weekdays and 3:00 am on the weekends; 2) allow recorded music at the restaurant Thursdays, Fridays and Saturdays.

There have been concerns raised by the residential tenants living above The Ugly Mug regarding the noise level of the music coming from the establishment. The owner and his attorney indicated that they had held a meeting on March 10, 2005, with the landlord and her legal counsel to discuss the best means to cure the noise problems experienced by the residential tenants. It was further stated that an agreement had been reached by all parties involved regarding specific corrective measures to be taken in addressing the abatement of noise invading the upstairs residential tenant’s living space.

The Ugly Mug’s legal counsel, Mr. Thomas W. Felder II, submitted to the Committee a letter dated April 6, 2005 regarding the above meeting in which the following points were made:

“First, we agreed that my clients would regulate the noise levels in cooperation with the landlord and residential tenants. The sound levels are being regulated and we have implemented sound tests allowing my clients can go upstairs into the residential units and get a better understanding of the degree of sound that travels to the upstairs units.

Second, my clients have consulted with a sound technician and one of the residential tenants regarding soundboards and adjusting the equalizers. The adjustments to the equalizers and subwoofers have decreased the vibrations that otherwise would affect the residential units.

Finally, my clients have agreed to build in 2 additional layers of acoustical tiling between the restaurant and the upstairs units, for a total of 3 layers of acoustical tiling. The tiling was delivered to the restaurant on April 3, 2005 and installed on April 5, 2005. The landlord has been notified that we will be installing the tile. Once the tile is installed, my clients will do some additional sound tests to make sure that the added tiles create a reliable sound barrier.”

During the meeting Mr. Jablonski stated that he had met with two (2) of the three (3) residential tenants involved and had reached an agreement on allowing them (Ugly Mug) to have access to their premises to inspect noise levels and also on the actions they were undertaking to resolve the noise problem. It was pointed out that the two (2) tenants represented the two (2) units above their establishment. It was further stated that their interaction with the two (2) tenants involved have been very positive.

During the discussion Ugly Mug stated that they want a DJ. The Commissioners asked why having a DJ was not made clear on the placards or application. The Ugly Mug attorney and owner stated that having a DJ was implied under this application.

Some Commissioners expressed concern that having a DJ could turn the restaurant/bar into a nightclub, which ANC 6B has traditionally opposed due to crime, sales of narcotics and other negative activities in nightclubs in DC. In addition, 8^th Street is part of primarily a residential neighborhood and did not want to see it become overrun by restaurants and bars.

There were several patrons and employees of the Ugly Mug who spoke in favor of the changes to the license.

Bill McLeod, Executive Director of Barracks Row Main Street voiced his concerns regarding the potential of ANC 6B supporting the Ugly Mug’s request to extend their hours and to allow for a live DJ. He stated that Barracks Row Main Street is comprised of residents, merchants, building owners, and stakeholders in the community devoted to revitalizing 8^th Street. Additionally, he voiced his concerns that the ANC not allow 8^th Street to become another Adams-Morgan, which is now trying to recapture its lost retail base.

The Committee expressed its serious concerns regarding the use of a live DJ on premises. It was also pointed out that the Ugly Mug’s placards did not indicate that live DJs would be part of their business. It was felt that the community must be fully aware of a businesses plans so that they can properly evaluate any potential negative or positive impact it will have on their quality of life. Therefore, the Committee instructed the Ugly Mug to request an amendment to their license (placard) to indicate that live DJs will be used. Their legal counsel assured the Committee that he would make this happen immediately.

The owner of the Ugly Mug stated that it is his desire to be a good neighbor in the community and was willing to take the necessary actions to demonstrate he means business. He further stated that he was willing to sign a Voluntary Agreement outlining the actions his establishment will take in addressing the issues regarding noise and live DJ and other community concerns.

The ABC Committee therefore recommends that: The ANC not oppose the extension of business hours on the condition that the use of a live DJ be limited to Friday and Saturday nights only, no more than twice a month and will end at midnight; and that the audio volume is consistently monitored as to not negatively affect the upstairs residential tenants; and the Ugly Mug must execute (sign) a Voluntary Agreement that adheres as a minimum to the conditions outlined in Mr. Felder’s -- Counsel to the Ugly Mug -- April 6, 2005 letter to the ANC regarding noise abatement.

Commissioner Olson, provide some new information regarding this application. Barracks Row Main Street submitted a memo to the ANC dated April 12, 2005, which read:

Barracks Row Main Street is a volunteer-driven nonprofit organization. Our volunteer board of directors and committee volunteers are residents, merchants, building owners, and stakeholders in the community. As a revitalization organization, we have been working since 1999 to assist small businesses through our small business resource center and have attracted 48 new businesses to 8^th Street since we began. We are very much in favor of business development on 8^th Street, but we believe that businesses out of keeping with the neighborhood are detrimental to the overall revitalization of 8^th Street.

In recent months, the Ugly Mug opened, and is now hoping to extend its hours and have a live dj (CD or vinyl record) regularly. The board of directors believes that granting this would not enhance 8^th Street, but create a nightclub atmosphere in this neighborhood commercial district located in the middle of a residential neighborhood.

Furthermore, the BRMS board is aware of some discrepancies between the Ugly Mug’s ABC application and what was happening within the establishment. Although some of the issues have been resolved or are being worked on, the impression is not the best.

We believe that 8^th Street is at a unique juncture in its development. We have the opportunity to mold the revitalization of the neighborhood in a responsible way. Barracks Row Main Street Does not want 8^th Street to become another Adams-Morgan that is a nighttime restaurant destination with little street actively during the day, nor does it want to become Metro Center with no housing. Today, Adams-Morgan is desperately trying to recapture its lost retail base and Metro Center is rebuilding its residential market to make it a vibrant, 24-hour community again.

Being pro-business means actively managing how 8^th Street develops to enhance the neighborhood for residents and businesses alike.

The Chair asked if there was any other new information.

A resident, Larry Harbin who lives at 500 9^th Street, stood and stated that he would like to say something on the behalf of the Ugly Mug. He further stated that he has lived in the area for over 21 years and supports the Ugly Mug. He believes that the concerns are whether or not the Ugly Mug will become another Heart and Soul and the mess the community had with that establishment. He further stated that he has known Mr. Gaynor for some time and does not believe he is the type of person who would allow his establishment to become another Heart and Soul type situation.

A resident, Robert Bannin (could not hear last name properly), the Director of Champs stood and stated that his organization works closely with Barracks Row Main Street. He stated there was concerns about the Barracks Row Main Street Memo in that he understand that they do not want the area to become another Adams-Morgan, but he does not see how you can restrict business who are trying to bring benefits to Capitol Hill and then to say you don’t want them to be like that. He would like to have people to be more open minded than the Barracks Row letter suggest.

Chris Spiers, the resident who has lived above the Ugly Mug in apartment II for five (5) years, asked the members of the community and commission how many slept in their own beds the prior night and how many planned to sleep in their own bed that night. He stated that he has not had the opportunity to sleep in his own bed at night for the past 5 months in his own apartment. He has had to sleep elsewhere because of the music from the Ugly Mug. He further stated that they have had conversations with the landlord and the Ugly Mug and they have lowered the volume. However, he said it was three (3) months after they opened before they lowered the volume and it was four (4) months before they installed the tiles. He further stated that he appreciated the gesture, but they have been a longtime in coming and they have not been effective. He stated that the music is tolerable, but still after a long day of work he cannot go home and relax which has and is causing him much stress and heartache and he is simply tired of this situation.

He stated that he understands that this is an issue between the landlord and the Ugly Mug, but he lived in his space before the Ugly Mug moved into its space, and he does not feel that it is his nor the other tenants responsibility to resolve the issue, and that it was up to them to resolve the issue. He also stated that he understands that it is not up to the ANC to resolve the issue, but his only concern is their application for the extension of hours and the DJ and he just wanted to let the Commission know that it is still going on. He was of the opinion that they are trying to be forced out of their homes.

Commissioner Olson asked what other establishments on 8^th Street are open until 3 a.m. on the weekend. The response was that there were several.

Commissioner Russell asked how many other establishments on 8^th Street have DJs. The response was that Tapitinis, Phase I, and Finn McCool’s have live music, which uses the same type of box of the application, but not actual DJs.

Commissioner Campbell asked Chris Spiers if it was unique in that they were the only residents who live above a restaurant/bar. He responded that to the best of his knowledge they were. Commissioner Campbell and asked Mr. Spiers what was the different between living above the Ugly Mug and living above the prior restaurant/bar. His response was the sound system. He also stated that the prior restaurant had music, but it was never a problem.

The landlord, Ms. Catherine Held, stated that it was true that there was another restaurant in the space before the Ugly Mug and in fact there was another restaurant in that location before that. However, she never had a problem with noise before and she feels that the current situation is unfortunate because she knows that Mr. Jablonski has worked very hard on his place and she understands that it is very successful and people like to go there. She stated that the problem is that he occupies the building with the apartments above him and that was not new news to him when he rented the space. She further stated that prior to signing the lease she asked him if was planning to have entertainment or a DJ and his response was that he was not. She also stated that it has been very difficult to pull together the people upstairs and there are other people on the block that do not like the Ugly Mug being there.

Commissioner Cernich asked if there were any businesses from the block present because he had also heard, as she stated, that there were businesses on 8^th Street who did not like having the Ugly Mug on the block, but no one has attended any commission meetings to voice their opinions. He went on to state that the matter is a landlord and tenant issue. The ABC regulation prohibits you from being able to hear music from an ABC establishment in an adjacent residential zone. These apartments are in a commercial zone, therefore there are no prohibitions under the ABC laws as to whether music can be heard in those apartments or not and it is his feeling that the ANC has been dragged into solving a landlord/tenant issue on top of exercising its authority related to the ABC license.

Ms. Held stated that she understands the Commission’s concerns. She further stated that she has never before had any complaints about any of her other restaurant tenants.

Commissioner Jarboe wanted to focus on the noise issue. He asked the Ugly Mug representative if they were using a DJ now. The response was that they are not using a DJ, but they are using a jukebox. Commissioner Jarboe followed up with by asking if the jukebox was the source of the noise problem and the response was yes.

Mr. Felder, the Attorney for the Ugly Mug, stated that he really appreciated Chris Spiers coming out and he appreciates the concerns he had raised about the noise problem. Mr. Felder stated that any structural changes to the building couldn’t be done unless they, Ugly Mug, get approval from the landlord. He also stated that he is aware that they have made some missteps up to this point regarding this issue. However, since they first appeared before the Commission in March they have done everything within their power to try and mend any ill will between them and the tenants, landlord, community, and the ANC and they have done it at substantial cost. April 5^th was the first date they were able to put the sound tiles in and they had a sound test shortly thereafter. According to Mr. Felder the sound test showed an improvement in the reduction of the noise entering the tenant’s living space. He went on to say that they are aware that this is not the final answer, but they were pleased that they are making progress and moving in the right direction in solving or reducing the problem. He further stated that as long as the upstairs tenants were there they, the Ugly Mug, was willing to do as much as they can to work to remove the noise problem so that they can sleep in their space, but in the event it ever comes to a point that the tenants elect to move, they have already put out the offer that they are willing to try and be cooperative with that process and make it financially feasible.

Commissioner Olson asked if there was a way that a stopper could be installed to control the volume of the music. This device is designed to allow a preset sound ceiling to be established and to automatically restrict the sound from going above that point. Mr. Jablonski responded that the DJ is the person who would know how to do that, but he’s not aware of what is involved. However, he has asked his people to look into the stopper control situation.

Commissioner Olson asked if any of the Commissioners or community knew how the establishments in Adam-Morgan handle this situation, because she is aware that some of their establishments have residential tenants living above them. Mr. Felder stated that he had a couple of clients who had residential tenants above their establishments, but they just seem to accept the fact that they lived above a restaurant/bar, and to his knowledge nothing official or mechanical was being done to control the noise levels.

The MPD Beat Officer stood and stated that he has been dealing with the situation between the tenants and the Ugly Mug from the beginning and can speak to the level of the noise coming from the establishment. He stated that the first time he went into Chris Spiers’ living space the noise was definitely a problem to they point he definitely would not want to have to live in their space. The bass on the music was vibrating through the floor to the point that he could feel it through his shoes and he could not imagine trying to sleep there. He went on to say that he went up stairs last Thursday, and with the addition of the ceiling tiles and the subwoofers removed from the wall has made the situation more tolerable. Is there a bar downstairs? The answer is yes.

Commissioner Russell pointed out that the tenants in Adam-Morgan usually were moving into a space knowing that a bar was beneath them. Whereas, in this case the tenants were there first and it is the Ugly Mug that is moving into their space. Thus the residential tenant situations are very different.

Commissioner Jarboe asked the Ugly Mug representatives if the only issue was the use of a DJ instead of recorded music, what they would do differently if anything. Mr. Felder responded that with a DJ the establishment will be in more control than if a patron coming in and goes to the recorded music and selects music that has a lot of bass in it or some other type of music that could have a negative effect on the tenant. The DJ would be more in control. He further stated that on Friday he will be taking the amendment regarding the addition of a DJ to their liquor license and will bring it back to the ANC as requested.

Commissioner Wright mentioned that Mr. Jablonski had mentioned at the ABC Committee meeting that a customer could come in late at night and put ten dollars or more in the Jukebox and play and same crass song over and over again without any control by the establishment. He responded that this was true, because it is an Internet Jukebox and the establishment has no control over what musical selections are chosen by their patrons. Additionally, he stated that he loses money when he hires a DJ because he gets $.50 of every $1.00 that goes into the Jukebox, whereas he has to pay $75.00 a night when he has a DJ playing songs. So in the end he will lose money having a DJ, but in the end he will have more control by having a DJ.

Commissioner Glick restated that the sound (noise) issue is a landlord/tenant issue. His issue was with the ABC Committee Report regarding a DJ. His concern was that the establishment or subsequent ownership, could rent out the space to a Club Promoter who would come in and have dancing and a DJ, thus becoming a full fledge Club operating until 3 in the morning on the weekend. Therefore in the Voluntary Agreement he would like to that this issue is properly addressed, and the Commissioners stated that they understood his concerns.

Commissioner Jarboe stated after much discussion about the potential of a Club Promoter coming in and leasing out the space, that the real concern is trying to make sure that future ownership does not have to ability to do this. He referenced the Heart and Soul establishment that was in the community and the fact that they were great neighbors at the beginning, but after the establishment changed hands it became a real neighborhood problem and they do not want the same thing to happen with the Ugly Mug.

Commissioner Olson asked Mr. Jablonski if he would be willing to limit the use of a DJ to twice a month and cited several establishments where such agreements are part of their Voluntary Agreement. Mr. Jablonski responded that his only request would that if there was a request for a private party that specially requested a DJ on Friday or Saturday night and it would mean that it would be the 3^rd night of the weekend that he be allowed to do so if the provided the Commission with a notice of the request.

Commissioner Campbell asked for a clarification on the issue of the number of days versus weekends. He specifically asked if the intent was to limit the use of a DJ to two (2) nights a month or 2 weekends per month. Commissioner Cernich stated that the intent was to limit it to 2 nights per month, period that was the Committee’s recommendation.

Mr. Jablonski stated that if the offer is to have a DJ only two (2) nights per month, then it was not worth it for him to have one because it would turn out to be more of a hindrance to his business. He was of the opinion that the discussion was about having a DJ two (2) weekends a month along with the potential of having private parties with a DJ.

Mr. Jablonski stated that his number one concern was getting the extension of his operating hours. He stated he was willing to table the discussion regarding a DJ until he goes down and re-placards his application in May to include a DJ.

Commissioner Campbell asked the upstairs tenants what his feelings were about extending the hours and coming back later to discuss the issue of the DJ. His response was in the form of a question. Was the ANC dealing with the noise issue or not?

Commissioner Cernich stated that it is part of the discussion, but he was not exactly sure where the Commission was going on it. He personally believes that it is a landlord/tenant issue. The Ugly Mug’s comment was made that they were working on the equalization issue of controlling the bass in the music to control the vibrations in the floors.

Commissioner Jarboe asked that since they are working on controlling the bass, if the noise issue was tabled until next month did he (Gaynor) feel that they would be in a better position to discuss the results of their efforts at the next meeting. His response was that he could not promise anything, but he felt that if they could control the equalizer and bass problem they would be close to addressing the issue.

Commissioner Wright made a Friendly-Amendment the ABC Committee recommends that the Commission support the extension of the business hours as to not negatively affect the upstairs residential tenants; and the Ugly Mug must execute (sign) a Voluntary Agreement that adheres, as a minimum, to the conditions outlined in Mr. Felder’s April 6, 2005 letter to the ANC regarding noise abatement.

Commissioner Jarboe added that it would be with the understanding that the DJ issue would be put off until next month.

The Amendment was seconded by Commissioner Campbell. The vote was 8-1-0 to approve the Amendment.

Commissioner Olson made a Friendly-Amendment on the language of Commissioner Wright’s Amendment, which was “ABC Committee recommends that the ANC not oppose the extension of the business hours on the condition that the audio volume is consistently monitored as to not negatively affect the upstairs tenants” be added to the clarify the language. Commissioner Russell seconded the motion. The Amendment now reads “ABC Committee recommends that the ANC not oppose the extension of the business hours on the condition that the audio volume is consistently monitored as to not negatively affect the upstairs tenants; and the Ugly Mug must execute (sign) a Voluntary Agreement that adheres, as a minimum, to the conditions outlined in Mr. Felder’s April 6, 2005 letter to the ANC regarding noise abatement.” The vote on the amendment was unanimous (9 to 0) in favor of the amendment.

Commissioner Jarboe wanted to add language that it is conditional upon the continuation of 1 month by the ABC Board the issue of the application of a live DJ. This basically states that they will go in jointly to apply for the DJ.

Mr. Felder stated that he would like to see the word reasonable be added to not negatively affect, so that it would read, “reasonably not negatively affect”.

Commissioner Jarboe’s amendment was seconded by Commissioner Olson. The vote was on the amendment without Mr. Felder’s wording. The vote to approve the amendment was 8-0-1, with one abstention.

The Chair stated that the Committee Report is coming before the Commission as a recommendation from the Committee and requires no second, therefore all in favor of the Committee Report as Amended to raise their hands. The vote was unanimous (9 to 0).

Committee reports and announcements

Commissioner Olson reported that she is behind in finalizing the ANC’s website and she can’t give a specific date as to when it will be completed.

Financial Report

Commissioner Jarboe stated that he has provided each Commissioner with a copy of the Financial Report and they will notice that the Commission has received its standard allotment and has standard salaries, telephones services for a couple of months, and finally the ANC Security Deposit. There were no questions. Commissioner Jarboe made a motion and Commissioner Wright seconded, to accept the 3^rd Quarter Financial Report as given. The vote was unanimous (9 to 0).

Adjournment

There was not further business and Commissioner Cernich made the motion that the meeting be adjourned until its next meeting date of May 10, 2005. The motion was seconded, and the vote was 9 to 0.

Meeting Adjourned.

Prepared by Bert Randolph

Attested: