2861517 Glover Park Moratorium Zone - Notice of Emergency and Proposed Rulemaking - Alcoholic Beverage Regulation Administration
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ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION
ALCOHOLIC BEVERAGE CONTROL BOARD
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Alcoholic Beverage Control Board (Board), pursuant to the authority set forth in D.C. Official Code § 25-351(a) (2012 Supp.) and section 303 of title 23 of the District of Columbia Municipal Regulations (DCMR), hereby gives notice of the adoption of emergency and proposed rules that replace existing section 308 of chapter 3 (Limitations on Licenses) of title 23 (Alcoholic Beverages) of the DCMR to impose a three (3) year moratorium on the issuance of any new retailer's license class A, CT, CN, CX, DT, DN, and DX, in a portion of Glover Park which shall be known as the Glover Park Moratorium Zone. These rules also impose a cap of fourteen (14) on the number of class CR retailer’s licenses permitted in the Glover Park Moratorium Zone. This represents an increase from the previous cap of twelve (12) class CR retailer’s licenses and will allow for the issuance of two (2) additional class CR retailer's licenses in the Glover Park Moratorium Zone. Lastly, the rules also lift the previous moratorium that existed on class B retailer’s licenses in the Glover Park Moratorium Zone.
On February 10, 2012, the Board received a resolution from Advisory Neighborhood Commission (ANC) 3B, adopted February 9, 2012, voting three (3) to one (1), with a quorum present, to renew the current Glover Park Moratorium Zone for a three (3) year period. The written request also sought the issuance of two (2) additional class CR retailer’s licenses, and the removal of the moratorium on class B retailer’s licenses. This resolution was supported by the Glover Park Citizens’ Association (GPCA) by a majority vote on March 6, 2012.
The Board conducted a public hearing, pursuant to D.C. Official Code § 25-354 (2012 Supp.), on March 21, 2012, to consider the joint request of ANC 3B and GPCA. The Board heard testimony from Jackie Blumenthal, Vice-Chair of ANC 3B; Patricia Clark, President of the Glover Park Citizens’ Association; Bill Thomas, holder of a class CR retailer’s license, located at 2348 Wisconsin Ave., N.W.; and Paul Holder, holder of a class CR retailer’s license, located at 2340 Wisconsin Avenue, N.W.
At the hearing, ANC 3B testified that its support to renew the moratorium was based upon four reasons: (1) the moratorium is critical to addressing ongoing problems with peace, order, and quiet; (2) the moratorium helps maintain a balance of goods and services in the small commercial area; (3) the moratorium helps the neighborhood to address issues regarding parking and vehicular and pedestrian safety; and (4) the moratorium has been a highly effective tool for managing change.
Notwithstanding the request to renew the moratorium, ANC 3B also testified in support of the issuance of two (2) additional class CR retailer’s licenses. ANC 3B stated that moratorium zones need not be perceived as limiting growth or preventing change, instead, the Glover Park Moratorium Zone has allowed the community to manage change, provide stability, and promote commercial growth. Allowing two (2) additional class CR retailer’s licenses is a result of that managed growth, brought about by the very existence of the moratorium.
ANC 3B further testified that within the last eight (8) years of the existing moratorium, Glover Park’s commercial district experienced a radical transformation in relationship to dining and nightlife options. Glover Park has become a destination location for young, single people, who use residential parking spaces and create disturbances late into the night. Thus, allowing more than two (2) additional class CR retailer’s licenses would only exacerbate the nightlife problems. Controlling the number of licenses has actually created a more diverse commercial development. Furthermore, ANC 3B indicated that establishments committed to serving food, such as restaurants, present much less of a problem with regard to peace, order, and quiet, than other types of ABC-licensed establishments.
ANC 3B also testified that elimination of the moratorium on class B retailer’s licenses would help to eradicate vacant retail spaces by allowing the community to encourage more off-site food options. The District of Columbia’s Office of Planning described Glover Park as one of the most diversified, successful, and resilient neighborhood-serving commercial corridors in Washington, D.C. ANC 3B believes that success is due to the prevention of overconcentration of ABC-licensed establishments in the moratorium zone.
Lastly, ANC 3B suggested a shorter moratorium renewal period of three (3) years instead of the previous five (5) years to allow the Board to assess the effectiveness of the proposed changes. This shorter moratorium period also allows the community and the Board the greatest degree of flexibility to adapt and adjust the moratorium in assessing the impact of these other changes.
GPCA echoed ANC 3B’s support of the renewed moratorium and stated that the Association takes very seriously the responsibility of fostering change and growth while protecting the essence of the neighborhood. Continuation of the moratorium helps to preserve economic diversity, minimize crime associated with late night patrons, and reduce the loss of residential parking availability.
GPCA testified that it is necessary to continue the moratorium due to the continued problems the neighborhood experiences with vandalism, beer bottle and cigarette butt litter, rowdy intoxicated individuals, public urination, and late night disturbances. Many of these problems stem from people who patronize the ABC establishments located in the Glover Park Moratorium Zone.
GPCA noted that it was because of the ongoing concerns related to peace, order, and quiet, that many citizens residing in the Moratorium Zone expressed a desire to maintain the status quo, and allow for no new licenses. These constituents were concerned that if the moratorium was amended, even slightly, there would be an increase in the density of ABC-licensed establishments and the problems associated with that density would grow exponentially. One of the more significant problems resulting from the night life destination in Glover Park is the shortage of residential parking because demand outstrips supply.
The joint request to renew the moratorium was supported by written correspondence received from Martin Dickinson, Phyllis Torda, and Sherry and Raymond Kaskey, all of whom reside on Hall Place, N.W., in the Glover Park neighborhood. These residents support the moratorium due to the concerns they experience with regard to late night noise, reduced parking availability, and the increase in litter caused by the patrons and the active nightlife.
Two other individuals, both holders of ABC licenses in the Glover Park neighborhood, also testified at the March 21, 2012, public hearing in support of the moratorium. Mr. Holder stated that because the moratorium is already in effect, it would be irresponsible to hastily eliminate it. Under the current moratorium, Glover Park enjoys a balanced mix of ABC establishments that offer a cross-section of cuisines and ambience. He also stated that by extending the moratorium for only three (3) years, instead of the traditional five (5) years, the citizens can assess whether more licenses can eventually be supported by the neighborhood. Mr. Thomas testified that although he normally opposes moratoriums, the one in place in Glover Park has allowed the commercial district to grow naturally with the growth of the community.
The Board also received written testimony from Glover Park residents Alex Foster, Rebecca Johnson, John Camera, and ANC Commissioner Ben Thielen who oppose the moratorium. They believe that eliminating the moratorium altogether will promote growth and diversity in the neighborhood. They are concerned that the limited addition of two (2) class CR retailer’s licenses will be purchased by existing ABC licensed establishments, and thus thwart the effort to truly diversify the eateries in the community. Additionally, elimination of the moratorium in its entirety will create new possibilities for existing retail vacancies and any vacancies that may arise in the future. The opponents also argued that there will not be an increase in patron-related problems if the moratorium expires, and that if there are, issues concerning peace, order, and quiet should be and are mitigated by the operators of ABC-licensed establishments.
The Board took the views of these Glover Park residents into consideration but it found the proposal of both ANC 3B and GPCA to continue the moratorium while allowing for two (2) additional licenses to constitute a reasonable compromise.
In reaching its decision, the Board gave great weight to the written recommendations of ANC 3B as required by section 13(d)(3) of the Advisory Neighborhood Councils Act of 1975, effective October 10, 1975(D.C. Law 1-21; D.C. Official Code § 1-309.10(d)(3) (2006 Repl. & 2012 Supp.)), and D.C. Official Code § 25-609 (2001 ed.). Specifically, the Board agrees with the testimony provided by both ANC 3B and the GPCA to: (1) warrant an extension of the existing moratorium for three (3) years; (2) allow for the issuance of two (2) additional class CR licenses; and (3) eliminate the moratorium on retailer’s class B licenses.
The Board based its decision upon the appropriateness standards set forth in D.C. Official Code §§ 25-313 and 25-314 (2012 Supp.). Specifically, under D.C. Official Code § 25-313(b), the testimony presented at the hearing as well as the joint resolution submitted by ANC 3B and the GPCA revealed that problems still exist in the Glover Park Moratorium Zone with regard to peace, order, and quiet, justifying the need for the renewal of the moratorium zone.
The statements set forth above reflect the written reasons for the Board’s decision as required by 23 DCMR § 303.1.
The emergency action is necessary to ensure that the limitations placed on the issuance of new retailer’s licenses Class A, CT, CN, CX, DT, DN, and DX are not exceeded, which the Board has determined pursuant to D.C. Official Code §§ 25-313(b)(2) and 25-314(a)(4) would:
(1) have an adverse effect on the peace, order, and quiet; and
(2) create or contribute to an overconcentration of licensed establishments which would have an adverse effect on public safety.
These emergency rules were adopted by the Board on April 11, 2012, by a vote of seven (7) to zero (0). These emergency rules will expire one hundred twenty (120) days from the date of effectiveness (August 11, 2012) or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first. The Board also gives notice of its intent to adopt these rules in not less than thirty (30) days from the date of publication of this notice in the D.C. Register.
Pursuant to D.C. Official Code § 25-211(b)(2) (2012 Supp.), these proposed rules are also being transmitted to the Council of the District of Columbia, and the final rules may not become effective until their approval by Council resolution during the ninety (90) day period of Council review.
Title 23 DCMR, chapter 3 (Limitations on Licenses), is amended by replacing the existing section 308 to read as follows:
308 GLOVER PARK MORATORIUM ZONE
308.1 No new retailer’s license class A, CT, CN, CX, DN, DT, or DX shall be issued for a period of three (3) years from the effective date of this section in the area that extends approximately one thousand two hundred feet (1,200 ft.) in all directions from 2436 Wisconsin Avenue, N.W., Washington, D.C. 20007. The number of class CR retailer’s licenses permitted in this area shall not exceed fourteen (14). This area shall be known as the Glover Park Moratorium Zone.
308.2 The Glover Park Moratorium Zone is more specifically described as beginning at Tunlaw Road and Fulton Street; East on Fulton Street to Wisconsin Avenue; South on Wisconsin Avenue to Edmunds Street; East on Edmunds Street to Massachusetts Avenue; Southeast on Massachusetts Avenue to Observatory Circle; Southeast around Observatory Circle to Calvert Street; West on Calvert Street to Wisconsin Avenue; Southeast on both sides of Wisconsin Avenue to 35th Street; South on 35th Street to Whitehaven Parkway; West on Whitehaven Parkway to 37th Street; North on 37th Street to U Street; West on U Street to a point of intersection of Huidekoper Place and W Street; West on W Street to 39th Street; North on 39th Street to Davis Place; East on Davis Place to Tunlaw Road; North and Northwest on Tunlaw Road to Fulton Street.
308.3 All hotels, whether present or future, shall be exempt from the Glover Park Moratorium Zone.
308.4 Nothing in this section shall prohibit the Board from approving the transfer of ownership of a retailer’s license class A, CT, CN, CR, CX, DN, DT, or DX within the Glover Park Moratorium Zone that was in effect or for which an application was pending prior to the effective date of this section, subject to the requirements of title 25 of the D.C. Official Code and this title.
308.5 Nothing in this section shall prohibit the Board from approving the transfer of a license from a location within the Glover Park Moratorium Zone to a new location within the Glover Park Moratorium Zone.
308.6 A license holder outside the Glover Park Moratorium Zone shall not be permitted to transfer its license to a location within the Glover Park Moratorium Zone.
308.7 Nothing in this section shall prohibit a valid protest of any transfer or change of a license class.
308.8 The moratorium shall have a prospective effect and shall not apply to any license granted prior to the effective date of this section or to any application for licensure pending on the effective date of this section.
308.9 This section shall expire three (3) years after the date of publication of the notice of final rulemaking.
Copies of the Notice of Emergency and Proposed Rulemaking can be obtained by contacting Martha Jenkins, General Counsel, Alcoholic Beverage Regulation Administration, 2000 14th Street, N.W., 4th Floor, Washington, D.C. 20009. Persons with questions concerning this rulemaking should contact Martha Jenkins at 202/442-445 or via email to martha.jenkins@dc.gov. All persons desiring to comment on the proposed rulemaking must submit their written comments, not later than thirty (30) days after the date of publication of this notice in the D.C. Register, to the above address.
