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Il Cigno Canopy Still Not Resolved

For a moment, several months ago, it seemed the controversy might be over surrounding the canopy outside Il Cigno Restaurant.

But that is not the case.

“The attorney for the condo association and for the restaurant both agree it is in the interest of both parties to reach a settlement,” said Michael Horwatt, the attorney representing the restaurant.

Wayne Schiffelbein, a member of the Lake Anne Condominium Association board of directors, said the association will not allow the canopy to go back up unless the owner of the restaurant, Tony Arbid, shows some legitimate need for it.

“We want to know what he is trying to solve, what he is trying to address,” Schiffelbein said. “And it has to be more than growing his business. He could put cables over the entire plaza to help his business, but we wouldn’t allow that.”

And while settlement discussions are underway, the restaurant is pursuing an injunction to stop the condominium association from taking away a set of wooden planters outside the restaurant. The planters, which form part of the base of the canopy structure, have been in place for almost 20 years. But on Feb. 20 of this year, the condominium association sent Arbid a letter, telling the restaurant owner to remove the planters by Feb. 28. The letter stated that the planters were outside a 32-foot easement onto the plaza and, therefore, they were infringing on condominium association property.

After receiving the letter Arbid hired Horwatt, who filed an injunction to stop the association from taking the planters. Horwatt contended that the planters were within the easement when measured from an awning over the restaurant. The condominium association had measured from the face of the building.

ON THE MORNING of Wednesday, March 13, a Fairfax County Circuit Court judge signed an order that said the condominium association was right: the easement should be measured from the face of the building. Even so, the judge did recommend a few other routes by which Il Cigno may stop the condominium association from taking the planters. One of those routes, said Horwatt, is to file for an injunction based on the fact that the planters have been in place for over 20 years.

“If someone has used the same property for 20 years, that is legal,” Horwatt said. “You keep doing it long enough that, although it wasn’t legal when you started, it is legal when you finish.”

The attorney is in the process of filing two new lawsuits, based on the judge's suggestions, requesting injunctive relief from the condominium association.

THE RESTON ASSOCIATION (RA) Design Review Board originally approved the canopy design and, recently, re-inserted itself into the process after receiving complaints that Arbid was violating the agreement between RA and the restaurant. On Tuesday, March 12, officials from RA sat down with Arbid and Horwatt to come to some kind of settlement. The two sides agreed on a schedule defining when the canopy will be allowed up and when the restaurant will be allowed to enclose the canopy with curtains to protect diners from seasonal weather. The curtains are allowed to be down 40 days out of the year.

“We signed an agreement that clarified some points under debate,” said Marjorie Krueger, RA design covenants manager, who was at the settlement meeting.

Schiffelbein thinks RA should have disallowed the canopy altogether.

“I’m very much let down by RA,” Schiffelbein said. “They say one thing but do another. They would represent themselves as a very active group that maintains the spirit of Reston. I don’t see it.”

SCHIFFELBEIN SAID the settlement was a cop-out by RA. He said the homeowner’s association did not want to get involved in the canopy dispute.

“[RA] turned tail and ran,” Schiffelbein said. “If RA settles something it drops off the map and there is no longer any controversy. What was initially a big deal, that the planters and signage didn’t conform to Reston covenants, just seems to vanish.”

Schiffelbein said the Lake Anne Condominium Association will not abide by RA’s ruling.

“RA does not control what the [condominium] association does with the property,” Schiffelbein said. “They have no control. They can’t tell us what hours or what days something can be on the plaza. It’s pretty dumb for them to have done this.”

Schiffelbein, and other members of the condominium association board, oppose the tent because they say it interrupts sight lines in the plaza and hurts business at other shops and restaurants. In addition, they say the canopy is not in keeping with the historic nature of Lake Anne Plaza.

Horwatt said the canopy will help other business on Lake Anne.

“The restaurant is the flagship business on the plaza,” Horwatt said. “During the outdoor dining season the restaurant brings thousands to the plaza. To the extent that the restaurant is highly successful, it benefits other commercial businesses because of the traffic it generates.”

Schiffelbein disagreed.

“We have no interest in harming the owner,” Schiffelbein said. “But we have an incredible interest in making sure he does not harm others. [Arbid] has stated that [the tent has increased his business]. But he can’t support it. He has only used the tent one season. Money damages cannot be measured over a short period of time.”