Code Amended to Define Parking for Outdoor Dining

OCEAN CITY –The Planning and Zoning Commission voted unanimously on an amendment to the code concerning the definition of outdoor dining and how it comes into play with an establishment’s required parking.

The commission has been in the process of deliberating how far local businesses can construct outdoor dining until the offered seating takes a toll on the parking spaces provided. The code in the past has exempt parking requirements from outdoor dining areas provided.

A couple of weeks ago during a public hearing, Zoning Administrator Blaine Smith explained prior to 2007 parking for restaurants was based on public floor area and the current zoning code by definition of public floor area exempted an open air patio.

“So when we were calculating parking for restaurants prior to 2007, if there was outside dining area that was totally open and unenclosed of any kind, anything open to the sky, was exempt from parking and did not get factored in to the required parking,” he said at that time.

He added that the modification made to the code in 2007 the term unenclosed was added.

“I believe this is why now the definition is being advanced to further define what unenclosed means and that the parking exemption, or waiver, is going back to the same notion that it is totally unenclosed of no enclosure of any kind, this includes not having a roof other than the umbrella,” Smith said.

The main concern of those restaurants, or other establishment owners in attendance had to do with unenclosed outdoor seating not including a roof or canopy.

“What it is about for me…the definition of unenclosed has worked for the last seven years,” owner of Fager’s Island John Fager said during the public hearing. “Open unenclosed could be with a roof and 42 inch sides…and if you go beyond that then it is no longer open unenclosed but to not allow a roof- and open to the air does not have to mean open to the sky necessarily.”

He said the code as stands has been a benefit to the town because restaurants have been able to construct outdoor seating including a roof of some kind and by doing so it has built character to the resort town.

“Now my concern for this town is you’re going to kill outdoor dining other than picnic tables with umbrellas,” he said. “You are going to stop outdoor dining because if I want to devote parking spaces because I want to cover my outdoor dining, I’m not going to do it. I am not going to squander a parking space for outdoor dining when I can use it for inside where I can get a really conditioned enclosed space.”

In taking the public hearing speakers concerns into consideration, the  Planning and Zoning Commission has decided to amend the code concerning outdoor dining to include, “Projects with non-conforming parking status may only exempt parking for outdoor dining areas equal to the number of parking spaces provided on-site at the rate of one space per one hundred square feet of outdoor dining area”, and “Unenclosed outside dining areas covered by a roof or awning shall remain 51 percent open on the sides with no enclosure of any kind otherwise which would reduce the enclosed area below 51 percent openness, any required railing not being higher than 42 inches maximum.”

This week Smith explained the reasoning behind the language “51 percent open on all sides.”

“In using the 51 percent, you would have more open then enclosed is a reasonable standard to say that it remains 51 percent open is still considered open unclosed if you set that as a threshold,” he said. “Right now we have no benchmark as a minimum or maximum on the openness and this would give us something to ensure that porch area would remain open to that degree and still remain open unenclosed.”

Smith added that any outdoor dining permitting or existing currently is grandfathered and will not be affected by the amendment to the code. Businesses are also entitled to applying for a variance or a parking waiver depending on their location or situation that would prevent them from being complaint with the new code.

“You see there is a need for it [outdoor dining] and it is a perfect location and it adds to the ambiance and the tourist trade, the whole vacation experience,” Chair of Planning and Zoning Commission Pam Buckley said.

Commission member Peck Miller added the amendment now enables the enforcement of the code.

“He [Smith] can now measure it and enforce it, which he has had anything enforceable,” Miller said.