After months of email exchanges between resident Lilian Burch and County planning and permitting officials, the County Department of Permitting Services served the developers with a Notice of Non-compliance with the site plan on May 9. That is according to Greg Nichols, manager of the DPS Site Plan Enforcement Section, who wrote in an email to Burch on August 9 that the developers then requested a 30-day extension period to respond to the Notice. The extension expired, Nichols wrote, and the violation was then referred to Mark Pfefferle, chief of the Maryland National Capital Park and Planning Commission's Development Applications and Regulatory Coordination Division, for enforcement. Nichols said DARC and the Planning Board would then follow procedures to determine any "corrective action and/or penalties."
With that process still playing out, the developers have now filed an application with the planning department to amend the site plan. Their attorneys Bob Dalrymple and Heather Dlhopolsky argue that DPS was aware of the 6' pedestrian space needed for Silver's outdoor seating when it issued Right-of-Way construction permit No. 343891 on September 3, 2015. They acknowledge the site plan called for a 10' right-of-way, but note that 6' is now the countywide DPS standard for sidewalk right-of-way in downtown areas. Therefore, the site plan language is no longer in compliance with the new DPS standard, they say.
Dalrymple and Dlhopolsky say that Silver's outdoor seating currently comprises 30% of the restaurant's capacity. Compliance with the site plan would require removal of 30 of Silver's outdoor seats, and that would make it impossible for Silver to generate enough revenue to meet its obligations and recoup its investment in the construction of the restaurant, they argue.
The importance of the outdoor seating to Silver's business model was specifically the reason the developers so carefully discussed the sidewalk configuration with DPS at the time of permitting, the attorneys say. They state that the owners of Silver clearly indicated to DPS that the narrower 6' pedestrian space between their tables and the building was critical to their business model, and actually a contingency for their agreement to lease at Lot 31.
In addition to reducing the site plan's right-of-way width for pedestrians in front of Silver from 10' to 6', the application also asks to revise grading and the addition of a railing at the southern end of the western side of Woodmont Avenue, and to extend a planting area to accommodate another grade change at the northwestern corner of the property. Dalrymple and Dlhopolsky contend that these are standard revisions often filed after unexpected "scenarios in the field" are encountered during the construction process.
Dalrymple and Dlhopolsky wrote to the planning department that no complaints have been received from the public regarding the outdoor seating at Silver in almost a year of operation. They said they are aware of one resident who has complained to the planning department about the matter. Burch counters that few in the public are aware of the sidewalk issue.
The lack of sidewalk space makes it difficult for people walking dogs to maneuver around waitstaff and doorways in front of the restaurant, Burch wrote. It is also a major pedestrian route for residents beyond Lot 31 who are trying to reach Bethesda Row, she said.
This matter will now go to the Planning Board at a future meeting for review and public comment.
