Wednesday, July 21, 2010

"Voluntary Agreements" - Necessary or NIMBYism?

EDIT (7-22-2010): Seems the residents of Bloomingdale aren't very happy with their ANC's refusal to support the liquor license application of the Big Bear Cafe. Fits in quite well with the theme of the post below.


That simultaneously loved and loathed peculiarity of DC regulatory law is back in the news again--I am speaking, of course, about the "voluntary agreement".

For those new to these proceedings, a quick primer: when an alcohol-serving establishment wishes to open in a neighborhood, residents of that neighborhood (or the neighborhood's ANC) have the right to "protest" the granting of the liquor license to the establishment. And with a few exceptions, they pretty much always do. In order to get the protest removed, the establishment typically negotiates with the protesters for the establishment of a "voluntary agreement" that places restrictions or conditions on aspects of the business such as operating hours, noise levels, trash pick-up, and more. In other words, the intent of the VA process is to give residents potentially affected by the establishment a voice in the proceedings, to prevent businesses from running roughshod over the neighbors.

I'll state up front that I typically support the VA process. More often than not, the agreements are sensible and provide for an environment where both the business and neighborhood residents are satisfied. But there is tremendous potential for abuse. In a letter that appeared in this week's Dupont Current, Bill Duggan, owner of Madam's Organ in Adams Morgan, penned a scathing diatribe attacking the VA process, pointing out the tremendous cost to both businesses and taxpayers when an ANC or group of protesters manipulates the VA process. (By way of example, Duggan points to the fact that Madam's Organ's liquor license renewal was protested for 15 months, through 7 different hearings, by the Kalorama Citizens Association before it was finally tossed. For an example a bit closer to home, Saint-Ex's struggles last year to obtain a change in classification for their license turned into an exercise in immense frustration.)

Interestingly, the Alcoholic Beverage Control Board, which is tasked with granting approval to all voluntary agreements, appears to be staking out a position that no longer includes automatic approval of any VA placed before it. Last week's Current discusses the case of popular 14th street restaurant Thaitanic's attempt to expand its operations to a second story. ANC2F Commissioner Charles Reed negotiated the VA with Thaitanic which included, among other stipulations, that the establishment must close by 1 AM--an hour earlier than allowed by DC ordinance on weekdays, and two hours on weekends. In an uncharacteristic move, the Board rejected the VA on the grounds that the closing hours stipulation appeared to be arbitrary--a move which suggests a change in policy for the Board, which was confirmed in later statements by Board spokesperson Cynthia Simms.

The decision angered Reed, who accused the Board of changing the rules without notice. To which many restaurant and bar owners might respond: good. Although I stated above my general supportiveness of the VA process, some changes to the structure would bring balance to a tilted system. As Greater Greater Washington's David Alpert recently noted, liquor license protests that lack sufficient grounds, or that amount to little more than the badgering of a local business by agenda-driven residents or ANC commissioners, serves only to harm the process and stoke anti-VA sentiment amongst city residents.

Alpert took issue with a recent vote by the Dupont Circle ANC to protest the liquor license application for P.J. Clarke's, who wanted to host a sidewalk cafe at 16th and K, in the space formerly occupied by Olives. Despite support for the license from several commissioners, including Jack Jacobson, Will Stephens and Victor Wexler, the ANC voted to protest the license anyway, apparently simply because they can. It's hard to imagine the New York-based restaurant chain, which would be filling a space in the center of a major city that had been previously held by a restaurant with outdoor seating, in an area dominated by office buildings and hotels, could possibly be a threat to the neighborhood's "peace, order and quiet". We aren't in Pleasantville, after all.

But why let a little common sense get in the way of a good protest?

Alpert is entirely correct on this issue: this kind of behavior on the part of the ANC is simply unnecessary and unwarranted. (It is worth noting that the Logan Circle ANC, 2F, has a policy of not protesting any liquor license applications for businesses within the central business district.) When abused, it's tantamount to bullying, and serves no purpose other than to provide certain individuals with the ability to exert control over an establishment's operations because the process allows them to do so.

If the ABC Board is set to enact policy changes that address this type of behavior, it is an unequivocally positive step towards bringing balance to this process. For example, the notion of protesting licenses on the grounds of "peace, order and quiet" has been used so frequently, it barely retains any real meaning. Alcohol-serving establishments opening in primarily residential neighborhoods have a duty to be respectful of their neighbors, but those in predominantly commercial or business corridors shouldn't be held to the same standards. Likewise, the ability to drag out a protest for months, and even years, should be curtailed. In much the same way that U.S. citizens are guaranteed the right to a speedy trial, license applicants negotiating fairly and reasonably should be able to resolve protests within a timely manner. And, a certain amount of consistency should be applied to VA stipulations, such as operating hours and outdoor seating.

To be sure, the VA process is a useful one and shouldn't be dispensed with completely. (Those clamoring for unfettered rights for business owners would be advised to speak with neighbors of establishments that weren't quite so respectful to area residents.) But it is past time for the ABC Board to examine this process and take appropriate steps to correct what can be a rather one-sided affair. A clearly articulated policy that addresses these issues fairly and transparently will truly be advantageous to all parties--and in practice, not simply in rhetoric.


kob said...

This is a great post and analysis of the problem. There is a class of mini-powerbrokers in neighborhoods who know the system and how to use it, and not always to fair ends. In the case you cite, it sounds as if the ABC Board acted smartly. Generally, I don’t think any group of neighborhood people should expect an automatic blank check to dictate terms and conditions. It's an unreasonable amount of power, and it is the ABC Board's job to balance it.

dc said...

The problem with the VA process and the instinctive opposition to liquor license applications is that it gives people the mistaken impression that they can dictate to business owners (and other residents) exactly what goes on and at what time. The nature of not being a business owner is that you don't get to make decisions about how a business is run; it's not yours. What the VA process does is start to plant the idea in people's heads that they have a right to decide when a local business opens, when it closes, and, in a past era, what kind of music was to be played.

We have zoning and noise ordinances for that kind of thing. The VA process ends up doing nothing but creating hundreds of "micro-zoning" laws and encourages others to create them where they didn't exist before.

bloomingdale resident said...

Great post - I would also add that there is also a problem of the ANC representatives from SMDs not directly affected by the establishments having a vote on whether to proptest a license. Big Bear Cafe in Bloomingdale has been hostage to just this scenario with the two representatives in the actual areas surrounding the cafe being supporters but all other reps opposing even though it has little to no impact on their districts. Total abuse of power.

Anonymous said...

Great post. I read the one on GGW yesterday and it was interesting to read the comments. It's time people realize that DC is a large, metropolitan city and that some noise, etc. is going to occur. I plan on gathering my friends and neighbors and start attending our ANC meetings to put an end to this backwards thinking.

Mr. Other Upper NW said...

Bloomingdale re: I have been following with great interest the issue of the Big Bear Cafe. Since we don't live in Bloomingdale or patronize the Cafe, I've refrained from commenting about it. But what has transpired there is indeed troubling, particularly, as you note, the fact that the two Commisioners whose SMDs are most impacted by the BBC's operations support the license, whereas those whose SMDs are farther away have curtailed it.

Anonymous said...

Can anyone tell me the history of the VA? When and why were they created in the first place?

Were they created in response to specific actions by retaurants and bars that the local communities deemed negative? Were they created in anticipation of potential negative occurances?

mattyillini said...

I remember attending an ANC 2B meeting several years ago where two of the commissioners endlessly questioned the owner of a new restaurant about the menu. One got the impression that if it didn't meet their approval, they would vote against the VA. The owner had his attorney with him, billing by the hour, I am sure.[sigh]

Anonymous said...

Olives did NOT have an outside terrace. PJ Clarke's request is for an entirely new outside space. It'll be the first outside cafe anywhere along the 16th Street historic district otherwise known for its green lawns and residential character.

Mr. Other Upper NW said...

Anon/ANC2B commissioner: 16th and K is not a residential area--it's disingenuous to say that it is when everything immediately surrounding it is either office space or hotels. An outdoor eating space is not going to impact 16th Street's "historic character" and "green lawns" (where are all of those lawns, BTW? I walk by 16th and K all of the time, and don't recall seeing many lawns...). Are they looking to tear down a building or pave over a lawn? No, they're looking to add some tables and chairs and allow people to dine al fresco. The horror.

Anonymous said...

Hate the word NIMBY.

How about OIYBI - to be used at those who use NIMBY.

Only in YOUR backyard.

Or, allow only long time residents of DC to use the word NIMBY. Or you can use it if you can show you will be here longer than the typical hotel guest.