Zoning Ordinance Revisions Affecting Arlington County’s By-Right Outdoor Cafés

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Explore:  Restaurant Industry

The more things change, the more they stay the same.  Or at least that is the case if you plan to eat at any one of Arlington’s 200-plus outdoor cafés.  On May 18, 2013, the Arlington County Board unanimously approved revisions to the Arlington County Zoning Ordinance that affect by-right outdoor cafés.  These revisions codify many of established norms for by-right outdoor cafés that have developed over time and through the zoning administrator’s interpretation of the zoning ordinance.  At the same time, the revisions bring welcomed flexibility and clarity for Arlington’s restaurant business community.

Arlington has regulated outdoor cafés since 1978, and the regulations have remained largely unchanged until now.  Under the 1978 regulations, outdoor cafés were uses accessory to an established restaurant and permitted either by-right or through a special exception.  However, the ordinance was largely devoid of specifics.  For instance, it did not include a formal definition of “outdoor café.”  Many of the issues associated with this lack of clarity could be addressed through a special exception from the county board, but only if the outdoor café was located within a public right-of-way or easement for public use.  Ultimately, the Arlington County Zoning Administrator issued an advisory memorandum in December 2010 defining “outdoor café” in an attempt to provide some guidance.  This proved controversial; however, as the zoning administrator defined outdoor cafés as being “seasonal.”   The seasonality requirement was also incorporated into outdoor cafés established by special exception.  In practice, this meant that outdoor cafés would be required to close for at least one season per year.   

The resulting give-and-take between the Arlington County and the Arlington restaurant community culminated in the May 18th revisions to the zoning ordinance.  The revisions, however, will only affect by-right outdoor cafés.  According to county staff, the practices and procedures that have developed for special exception outdoor cafés (i.e. outdoor cafés within a public right-of-way or easements for public use) remain in place going forward.   

The most important changes for by-right outdoor cafés were made to section 1 and section 31 of the Arlington County Zoning Ordinance.  Under section 1, a formal definition for outdoor cafés was added, which applies whether the outdoor café is established by-right or through a special exception.  An outdoor café is defined as an area located outside the exterior walls of a restaurant and containing portable seating and tables that are intended only for eating and drinking food and beverages the restaurant offers as part of its standard menu.  Rooftops are excluded from this definition.

Important changes were also made to section 31 of the zoning ordinance.  As before, outdoor cafés will be uses accessory to an established restaurant.  They, therefore, must have fewer seats than the indoor section of the restaurant and cannot operate beyond the restaurant’s normal business hours.  They will also remain within a building setback, and they will not need to meet any additional parking requirements under the zoning ordinance.

However, unlike by-right outdoor cafés under the previous ordinance, the new law will only allow sound, audio, or visual entertainment to be visible or audible from outdoor cafés from 9 a.m. to 10 p.m. on Sundays through Thursdays and 9 a.m. to 11 p.m. on Friday and Saturday.  This effectively incorporates timing restrictions into the new ordinance that are regularly used in special exception outdoor cafés by the Arlington County Board.  

On the upside, and departing from the zoning administrator’s interpretation, outdoor cafés will not be seasonal, except as the Arlington County Board may require through a special exception.  As county staff explained, this change recognizes the impractical nature of a seasonality requirement.  Enforcing the seasonality requirement can be difficult.  More fundamentally, weather and seasonal changes naturally dictate when it is too inclement to open an outdoor café for customers to use.  The new ordinance wisely gives restaurant owners the flexibility to determine when they should provide customers with access to the outdoor café, preventing popular space from going to waste when the weather is otherwise amenable.

In all, these changes do not deviate much from the norms Arlington’s restaurant owners have grown accustomed to over the years.  However, as Arlington’s outdoor cafés continue to rise in popularity, the changes will provide some needed clarity in the zoning ordinance and flexibility for the restaurant community, while compromising on matters affecting the communities surrounding them.

         

Topics:  Restaurant Industry

Published In: General Business Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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