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Fairfax County nears vote to permanently allow temporary outdoor dining

Burger 7’s outdoor dining area at Avenir Place in Dunn Loring (staff photo by Angela Woolsey)

Almost a year after ending its state of emergency for COVID-19, Fairfax County is expected to codify new rules for outdoor dining that were introduced in response to the pandemic.

A proposed zoning ordinance amendment will automatically let restaurants, bars and other food service establishments set up temporary seating areas where patrons can eat and drink outside, unless the area is in a parking lot, in which case an administrative permit will be needed.

Outdoor dining areas that use permanent furniture will still need to get the county’s approval during a site plan or building permit review.

“Outdoor dining can significantly improve the pedestrian experience throughout the County,” a Dec. 15 staff report says. “By activating the street-level pedestrian environment, it can increase vibrancy and make commercial areas more social and active.”

Currently, the county doesn’t have any official standards for outdoor dining, though outdoor seating is permitted as an accessory use by right — meaning a separate approval isn’t required — in all zoning districts that allow restaurants.

To support businesses while still trying to limit Covid’s spread by reducing crowds, the Fairfax County Board of Supervisors adopted an emergency ordinance on July 14, 2020 that allowed existing establishments to designate outdoor areas for dining and fitness activities without any additional approvals, though they still had to meet some site and operational requirements.

Many requirements under that temporary ordinance, which is set to expire on March 1, have been carried over to the new proposal, including a stipulation that all outdoor dining must be on impervious surface, such as a patio, sidewalk or parking lot.

The area must also be clearly marked and separated from vehicle parking spots and pedestrian access points. Tents larger than 900 square feet must be approved by the fire marshal’s office, which is also responsible for permitting any heaters or open flames under tents.

In a change from the emergency rules, outdoor dining areas will be limited to 50% of the size of indoor dining rooms as determined by a restaurant’s floor area, rather than its occupancy limit.

“In staff’s opinion, limiting the outdoor dining area based on the indoor seating area is a more accurate way to determine the allowable outdoor dining area,” the staff report said. “…This is also helpful in investigating potential violations, as DCC Investigators would be able to easily measure the outdoor dining and indoor dining area during their investigation to determine compliance.”

Acknowledging that using floor area could put smaller restaurants at a disadvantage, staff proposed alternatives that would either forgo a size limit or set a range. For patio and sidewalk dining areas, the suggested range is up to 250 square feet or 25 to 75% of the indoor dining area, whichever is greater, while areas in parking lots could be 500 square feet to 1,000 square feet per establishment.

Under the proposed amendment, establishments will no longer be required to provide separate parking for outdoor seating areas, a change implemented by the Parking Reimagined initiative that took effect on Monday, Jan. 1.

County staff also recommend tying the use of outdoor dining areas to a business’ regular operating hours. Since some establishments can be open as late as 2 a.m., prohibitions before 7 a.m. or after 10 p.m. for outdoor dining areas directly adjacent to or abutting single-family developments could be considered.

The proposal will get a public hearing before the Fairfax County Planning Commission on Jan. 10, followed by a Board of Supervisors vote on Feb. 6.

If the amendment is approved, the county will follow in the footsteps of Vienna, Herndon, Alexandria and Arlington, which have all approved outdoor dining regulations within the past couple of years.

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