Ahead of a three-year deadline, the owner of the Burger King franchise in Van Ness is seeking to waive a requirement that it resurface a parking area to allow for stormwater infiltration.
The accessory parking lot behind the Burger King and across the alley is zoned for residential use, so every three or four years, the franchise owner seeks an extension of the lot’s zoning exception from the District. In early 2018, Potomac Foods Group got ANC 3F’s support for a nine-year extension from the Board of Zoning Adjustment. The board’s approval was subject to a dozen conditions, including an order to repave the parking lot with permeable paving within three years of the BZA order.
Those three years are up on March 12th, 2021. And at ANC 3F’s meeting on November 17th, Potomac Foods had another request of the commissioners: that they support its petition to the BZA to waive the permeable paving condition.
ANC 3F voted 6-0-0 to send a letter to the BZA under the condition that Potomac Foods explore stormwater retention alternatives to the satisfaction of Chair Monika Nemeth and Commissioner David Cristeal.
What led to this action was a verbal report by Ken Griffin, an engineer hired by Potomac Foods, about the condition of the soil underneath the parking lot. Griffin, of Smith Engineering, said his firm hired ECS Mid Atlantic to test the soil underneath the accessory parking lot. ECS bore a number of holes, and according to Griffin, it found no percolation in the soil. In other words, the soil is too hard to absorb water, a necessary condition for installing permeable paving.
No written report about the condition of the soil had been presented to Nemeth, whose single member district includes Burger King, before or during the meeting to substantiate these claims. Mark James, vice president of operations for Potomac Foods, told the commissioners that the company could provide the ANC the soil data. As of Tuesday, November 24th, Nemeth had not requested the report in writing or via email. (James has not responded to Forest Hills Connection’s request for a copy of the report.)
In addition, Griffin reported at the meeting that “we cannot even pipe the water away. There’s nothing close to pipe it to.” That would eliminate another option for managing stormwater runoff – bioretention cells, or rain gardens. Griffin said the water would have to be piped somewhere. The closest storm drain is 300 feet away and that is too far, he said. “We’re perplexed. We’ve studied it for months.”
Pat Jakopchek, the previous chair of ANC 3F, worked on the agreement with Potomac Foods at the beginning of 2018. He told Forest Hills Connection in an email:
Potomac Foods has a long history of falling short in its agreements with the community and ANC 3F. Three years ago, when they last sought to extend their parking lot’s zoning exemption, they were in violation of 7 out of the 11 provisions they’d agreed to under their previous extension in 2014.
ANC 3F predicated its support for 2018’s very generous 9-year zoning exemption extension on a number of significant promises to our community.
But the choice to waste the better part of the three years they’ve had to make good on their promise to repave their property and the two adjoining lots with impervious surfaces was solely their own.
With the current lessened demand for indoor dining and diminished necessity of this parking lot, I can’t think of a better time to enforce these provisions.
In summer 2018, James wrote to ANC 3F to say the Burger King would likely close within months due to the expense of repaving and of renovations required by Burger King corporate. The location did not close, and in January 2020, James told the ANC that Potomac Foods was planning a total interior and exterior renovation.
Before the November 17th motion and vote on the parking lot, Nemeth told Mark James to check with the DC Department of Energy and the Environment, or DOEE, about other options.
And in an email to Forest Hills Connection, Nemeth said Potomac Foods would have to demonstrate to the ANC “that the original requirement as written cannot be met.”
“They must then present a design that addresses ANC 3F’s concerns to our satisfaction for us to consider waiving or modifying any requirements,” she said.