Long post. I believe it explains the current situation. This is the e-mail traffic I had with DCRA last week. Of course, Ms. Lewis never returned my calls. I called twice a day from Tuesday to Friday. Classic DC agency move - feign that you want to help and then do nothing.
Joseph Fengler wrote: Good morning all, I can't stress enough how important it is that DCRA, BZA and ANC 6A get together to review this application before the certificate of occupancy is issued.
Ms. Lewis, please let us know if the certificate of occupancy has been issued per your initial e-mail below.
Morning regards. Joe.
Joseph Fengler wrote: Ms. Lewis,
I am sorry we did not get a chance to talk yesterday. I will be in my office most of the morning and certainly can discuss this issue after your first cup of coffee. I reviewed the BZA order again last night. Please accept my apology. The summary I presented below is not technically correct.
1. An establishment is defined a fast food restaurant if there is a drive through.
2. If there is no a drive through, an establishment is classified a fast food restaurant if at least 10% of the total floor space on any one floor, that is accessible to the public (example - does not to include the kitchen or storage areas), and used for customer queuing or self-service for carry out and on-premises consumption,
AND if one of the two remaining conditions are met:
(1) Whether at least 60% of the food items are already prepared or packaged before a customer places an order, and
(2) Whether or not the establishment primarily serves its food and beverages in disposable containers and provides disposable tableware.
So, as there is not drive through, the key question is whether or not Cluck-U-Chicken's has at least 10% of the total floor space used for customer queuing. In the case of Blimpie's the DCRA inspector did not calculate this correctly -- as noticed in the BZA order. Accordingly, BZA has stated that the Blimpie's certificate of occupancy was issued in error. I do believe your legal team is reviewing how to correct / suspend the certificate of occupancy at Blimpie's as the joint ANC 6A and ANC 6C protest was upheld by BZA.
I mention this because I do not want to repeat the same problem in the case of Cluck-U-Chicken.
My recommendation is that DCRA withhold issuing the certificate of occupancy until DCRA inspector, Zoning Commission inspector and a representative of ANC 6A can review the floor plans together and ensure that Cluck-U-Chicken meets the conditions of BZA Order 17214. We can do this quickly. We can get together on Thursday or Friday to review this.
In close, I realize that you are not obligated to accept this recommendation. I am truly sorry we didn't have a chance yesterday. This e-mail may sound a forward, direct and demanding and that is not my intention. I just find it hard to accept that even with the Cluck-U-Chicken corporate offices define their operations as high volume, fast food establishment that DCRA will certify the operation as a restaurant. As always, I appreciate your time on this matter.
Warm regards,
Joe (202-423-8868)
Joseph Fengler wrote: Ms. Lewis,
Thank you for the heads up. I do have some concerns. BZA Order 17214 is very clear.
(1) Whether at least 10% of the total floor space on any one floor, that is accessible to the public (example - does not to include the kitchen or storage areas), and used for customer queuing or self-service for carry out and on-premises consumption,
(2) Whether at least 60% of the food items are already prepared or packaged before a customer places an order, and
(3) Whether or not the establishment primarily serves its food and beverages in disposable containers and provides disposable tableware.
I have seen the menu at Cluck-U-Chicken, it is very clear that most - if not all -- the food is prepared in advance. The owner admits to using disposable containers and tableware. And, while I didn't measure, it appears that the queuing line exceeds 10%. Please recall that Blimpie's was the case used to define BZA order 17214. Cluck-U-Chicken has a very similar layout and operation. Even the Cluck-U-Chicken corporation refers to itself as fast food (the attachment I sent to you today).
As you can tell, this is the line in the sand for our community. If Cluck-U-Chicken is given restaurant status, then the whole process and BZA order 17214 becomes suspect if not moot. I will not be available at 3:00pm today. I can call at 2:00pm. This is very important to our community. Let me thank you in advance for you time.
Regards, Joe.
"Lewis, Theresa (DCRA)wrote: Mr. Fengler:
A thorough review of the Certificate of Occupancy application was undertaken. According to Zoning staff, Cluck U Chicken has met all of the requirements. I instructed staff to withhold issuance of the Certificate of Occupancy until Tuesday monring, July 26, 2005 so that I may first notify you. I will be free to meet with you at 3:00 p.m. today, so that staff can answer any questions you may have. Please call 442-8930 or 442-8937 (my assistant JoAnn Spencer).
Sincerely,
Theresa D. Lewis, Chief of Staff Office of the Director Department of Consumer and Regulatory Affairs 941 North Capitol Street, NE Suite 9500 Washington, D.C. 20002 Office: (202) 442-8947 e-mail: Theresa.Lewis@dc.gov Fax: (202) 442-9445
-----Original Message----- From: Joseph Fengler Sent: Monday, July 25, 2005 7:54 AM To: Theresa Lewis Cc: Rich Luna Subject: Fwd: Re: Cluck-U-Chicken and BZA Order 17214 Good morning, I wanted to forward an e-mail from Rich Luna - who lives close to Cluck-U Chicken. If you can, please forward this to the DCRA inspector who will be reviewing the certificate of occupancy application for Cluck-U-Chicken at 1123 H Street, NE. Again, my goal is to make sure that the process and regulations are followed. Thanks in advance for you continued assistance. Joe.
Rich wrote: Date: Sat, 23 Jul 2005 23:23:46 -0400 From: Rich To: Joseph Fengler Subject: Re: Cluck-U-Chicken and BZA Order 17214
Joe,
Does it help the Cluck-U case at all if they admit that they are a "high volume fast food restaurant"? See the attached page I printed of they're webpage. Cluck-U's apparent strategy to get classified as a non-fast-food restaurant. I met Bernard and Dwayne, Cluck-U's two managers, on Thursday. They were claiming (to Shaaren and me) that Cluck-U was not fast food because they make everything to order, have "silverware" (disposable plasticware) and tables. This provides some evidence to make sure that Cluck-U gets classified as fast food, rather than a traditional restaurant, in response to Cluck-U's "we're not fast food" strategy. Also, FYI, Cluck-U said DCRA had stopped in to measure and inspect.
It looks like they opened it. I fail to see why this is such an issue though. Better a chicken fast food place without bullet proof glass than an abandoned store front, or some seedier business. If and when the neighborhood changes, market forces will dictate whether it remains fast food or gets turned to some more lucrative purpose.
I think what is at issue here is that widely agreed upon zoning principles and guidelines are being flouted as these places are being quitely greenlighted. There is a broader vision for H Street that does not favor big chain establishments or any further saturation of the fast-food culture that so thoroughly dominates H Street. So, today it's fast-food. Tomorrow it could be Bill Barrow tearing down more historic buildings to put up another strip mall...
It might also be nice if the ANC could seem to have a little leverage with which to negotiate with new and existing businesses (like with the voluntary agreements for Joe Englert's places). When DCRA basically ignores the ANC (especially when the ANC just wants to make sure the zoning rules are followed) that is not a good thing. What incentive do businesses like Danny's (which I hear doesn't secure its dumpster), Autozone (which allows illegal mechanic to oerate in its lot), or any place else for that matter, have to cooperate with the community if DCRA (or ABRA, or any other city agency) isn't going to pay attention to input from the ANC?
The problem isn't with the ANC in particular. It's that DCRA (including the office of the zoning administrator) is so profoundly unresponsive to citizen complaints and concerns. It has taken several weeks of nagging (by me and others) to get DCRA to finally revoke the Blimpie's C of O, which it did last week, according to Neil Stanley.
In a normal world, DCRA would have done this on the 10th day after June 13 (when BZA issued its order), the first day the order became effective. Instead, DCRA apparently sat on its {insert name of suitable body part} until the end of July.
But the ANC in particular should have advisory power. When DCRA acts like this the ANC has no power & that is not a good situation for anyone except business owners who want to be bad neighbors.
While it is not Cluck-U-Chicken, Blimpie's was forced to close due to the BZA Order 17214 that ANC 6A won on appeal. In a conversation with the attorney that represents the franchise owner, the store will be closed for at least six months to a year (Blimpie's needs to apply for a special exception from the Board of Zoning Adjustment and it takes that long to complete the public hearing process).
I expect that ANC 6A will appeal the DCRA action that issued an over the counter certificate of occupancy to Cluck-U-Chicken. It will take a year for the case to be heard by the Board of Zoning Adjustment. I expect a similar outcome as Blimpie’s.
It is too bad that DCRA and the Zoning Commission can’t get on the same page and conduct joint review of the certificate of occupancy applications – before the construction permits are granted. The continued abuse of “build it and they will issue certificates of occupancy” must end if H Street development is to continue.
9 comments:
Ha! I told you so!!!
Long post. I believe it explains the current situation. This is the e-mail traffic I had with DCRA last week. Of course, Ms. Lewis never returned my calls. I called twice a day from Tuesday to Friday. Classic DC agency move - feign that you want to help and then do nothing.
Joseph Fengler wrote:
Good morning all, I can't stress enough how important it is that DCRA, BZA and ANC 6A get together to review this application before the certificate of occupancy is issued.
Ms. Lewis, please let us know if the certificate of occupancy has been issued per your initial e-mail below.
Morning regards. Joe.
Joseph Fengler wrote:
Ms. Lewis,
I am sorry we did not get a chance to talk yesterday. I will be in my office most of the morning and certainly can discuss this issue after your first cup of coffee. I reviewed the BZA order again last night. Please accept my apology. The summary I presented below is not technically correct.
1. An establishment is defined a fast food restaurant if there is a drive through.
2. If there is no a drive through, an establishment is classified a fast food restaurant if at least 10% of the total floor space on any one floor, that is accessible to the public (example - does not to include the kitchen or storage areas), and used for customer queuing or self-service for carry out and on-premises consumption,
AND if one of the two remaining conditions are met:
(1) Whether at least 60% of the food items are already prepared or packaged before a customer places an order, and
(2) Whether or not the establishment primarily serves its food and beverages in disposable containers and provides disposable tableware.
So, as there is not drive through, the key question is whether or not Cluck-U-Chicken's has at least 10% of the total floor space used for customer queuing. In the case of Blimpie's the DCRA inspector did not calculate this correctly -- as noticed in the BZA order. Accordingly, BZA has stated that the Blimpie's certificate of occupancy was issued in error. I do believe your legal team is reviewing how to correct / suspend the certificate of occupancy at Blimpie's as the joint ANC 6A and ANC 6C protest was upheld by BZA.
I mention this because I do not want to repeat the same problem in the case of Cluck-U-Chicken.
My recommendation is that DCRA withhold issuing the certificate of occupancy until DCRA inspector, Zoning Commission inspector and a representative of ANC 6A can review the floor plans together and ensure that Cluck-U-Chicken meets the conditions of BZA Order 17214. We can do this quickly. We can get together on Thursday or Friday to review this.
In close, I realize that you are not obligated to accept this recommendation. I am truly sorry we didn't have a chance yesterday. This e-mail may sound a forward, direct and demanding and that is not my intention. I just find it hard to accept that even with the Cluck-U-Chicken corporate offices define their operations as high volume, fast food establishment that DCRA will certify the operation as a restaurant. As always, I appreciate your time on this matter.
Warm regards,
Joe (202-423-8868)
Joseph Fengler wrote:
Ms. Lewis,
Thank you for the heads up. I do have some concerns. BZA Order 17214 is very clear.
(1) Whether at least 10% of the total floor space on any one floor, that is accessible to the public (example - does not to include the kitchen or storage areas), and used for customer queuing or self-service for carry out and on-premises consumption,
(2) Whether at least 60% of the food items are already prepared or packaged before a customer places an order, and
(3) Whether or not the establishment primarily serves its food and beverages in disposable containers and provides disposable tableware.
I have seen the menu at Cluck-U-Chicken, it is very clear that most - if not all -- the food is prepared in advance. The owner admits to using disposable containers and tableware. And, while I didn't measure, it appears that the queuing line exceeds 10%. Please recall that Blimpie's was the case used to define BZA order 17214. Cluck-U-Chicken has a very similar layout and operation. Even the Cluck-U-Chicken corporation refers to itself as fast food (the attachment I sent to you today).
As you can tell, this is the line in the sand for our community. If Cluck-U-Chicken is given restaurant status, then the whole process and BZA order 17214 becomes suspect if not moot. I will not be available at 3:00pm today. I can call at 2:00pm. This is very important to our community. Let me thank you in advance for you time.
Regards, Joe.
"Lewis, Theresa (DCRA)wrote:
Mr. Fengler:
A thorough review of the Certificate of Occupancy application was undertaken. According to Zoning staff, Cluck U Chicken has met all of the requirements. I instructed staff to withhold issuance of the Certificate of Occupancy until Tuesday monring, July 26, 2005 so that I may first notify you. I will be free to meet with you at 3:00 p.m. today, so that staff can answer any questions you may have. Please call 442-8930 or 442-8937 (my assistant JoAnn Spencer).
Sincerely,
Theresa D. Lewis, Chief of Staff
Office of the Director
Department of Consumer and Regulatory Affairs
941 North Capitol Street, NE Suite 9500
Washington, D.C. 20002
Office: (202) 442-8947
e-mail: Theresa.Lewis@dc.gov
Fax: (202) 442-9445
-----Original Message-----
From: Joseph Fengler
Sent: Monday, July 25, 2005 7:54 AM
To: Theresa Lewis
Cc: Rich Luna
Subject: Fwd: Re: Cluck-U-Chicken and BZA Order 17214
Good morning, I wanted to forward an e-mail from Rich Luna - who lives close to Cluck-U Chicken. If you can, please forward this to the DCRA inspector who will be reviewing the certificate of occupancy application for Cluck-U-Chicken at 1123 H Street, NE. Again, my goal is to make sure that the process and regulations are followed. Thanks in advance for you continued assistance. Joe.
Rich wrote:
Date: Sat, 23 Jul 2005 23:23:46 -0400
From: Rich
To: Joseph Fengler
Subject: Re: Cluck-U-Chicken and BZA Order 17214
Joe,
Does it help the Cluck-U case at all if they admit that they are a "high volume fast food restaurant"? See the attached page I printed of they're webpage. Cluck-U's apparent strategy to get classified as a non-fast-food restaurant. I met Bernard and Dwayne, Cluck-U's two managers, on Thursday. They were claiming (to Shaaren and me) that Cluck-U was not fast food because they make everything to order, have "silverware" (disposable plasticware) and tables. This provides some evidence to make sure that Cluck-U gets classified as fast food, rather than a traditional restaurant, in response to Cluck-U's "we're not fast food" strategy. Also, FYI, Cluck-U said DCRA had stopped in to measure and inspect.
--Rich
It looks like they opened it. I fail to see why this is such an issue though. Better a chicken fast food place without bullet proof glass than an abandoned store front, or some seedier business. If and when the neighborhood changes, market forces will dictate whether it remains fast food or gets turned to some more lucrative purpose.
I think what is at issue here is that widely agreed upon zoning principles and guidelines are being flouted as these places are being quitely greenlighted. There is a broader vision for H Street that does not favor big chain establishments or any further saturation of the fast-food culture that so thoroughly dominates H Street. So, today it's fast-food. Tomorrow it could be Bill Barrow tearing down more historic buildings to put up another strip mall...
It might also be nice if the ANC could seem to have a little leverage with which to negotiate with new and existing businesses (like with the voluntary agreements for Joe Englert's places). When DCRA basically ignores the ANC (especially when the ANC just wants to make sure the zoning rules are followed) that is not a good thing. What incentive do businesses like Danny's (which I hear doesn't secure its dumpster), Autozone (which allows illegal mechanic to oerate in its lot), or any place else for that matter, have to cooperate with the community if DCRA (or ABRA, or any other city agency) isn't going to pay attention to input from the ANC?
The problem isn't with the ANC in particular. It's that DCRA (including the office of the zoning administrator) is so profoundly unresponsive to citizen complaints and concerns. It has taken several weeks of nagging (by me and others) to get DCRA to finally revoke the Blimpie's C of O, which it did last week, according to Neil Stanley.
In a normal world, DCRA would have done this on the 10th day after June 13 (when BZA issued its order), the first day the order became effective. Instead, DCRA apparently sat on its {insert name of suitable body part} until the end of July.
But the ANC in particular should have advisory power. When DCRA acts like this the ANC has no power & that is not a good situation for anyone except business owners who want to be bad neighbors.
I stand corrected, anonymous. I guess I gave DCRA too much credit.
While it is not Cluck-U-Chicken, Blimpie's was forced to close due to the BZA Order 17214 that ANC 6A won on appeal. In a conversation with the attorney that represents the franchise owner, the store will be closed for at least six months to a year (Blimpie's needs to apply for a special exception from the Board of Zoning Adjustment and it takes that long to complete the public hearing process).
I expect that ANC 6A will appeal the DCRA action that issued an over the counter certificate of occupancy to Cluck-U-Chicken. It will take a year for the case to be heard by the Board of Zoning Adjustment. I expect a similar outcome as Blimpie’s.
It is too bad that DCRA and the Zoning Commission can’t get on the same page and conduct joint review of the certificate of occupancy applications – before the construction permits are granted. The continued abuse of “build it and they will issue certificates of occupancy” must end if H Street development is to continue.
Post a Comment