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Fairfax County plans to let outdoor dining continue beyond pandemic

The Burger 7 at Avenir Place has a tent extension and movable tables and chairs for outdoor dining (staff photo by Angela Woolsey)

The end of Fairfax County’s state of emergency declaration for the COVID-19 pandemic won’t mean the end of expanded outdoor dining.

At a land use policy committee meeting last week, the Board of Supervisors indicated strong support for permanently relaxing the county’s permitting rules to let restaurants and other food and drink service establishments set up temporary outdoor dining areas.

Under the proposal put forward by county staff on Oct. 6, restaurants would only need an adminstrative permit to provide outdoor dining in parking spaces and other hard-surface areas, such as an existing patio or sidewalk, for a six-month period.

“The administrative permit would place limits on the size of the outdoor dining area, the hours of operation, and the duration of the permit,” said Jennifer Josiah with the Fairfax County Department of Land Development Services. “No site-related plans would be required, as long as there’s no land disturbance.”

She noted that regular health department inspections would continue, and businesses would still have to get approved by the fire marshal “to ensure all safety standards are met regarding tents, heaters and seating areas.”

The new process would be similar to the looser regulations in place since May 2020, when the board approved an emergency ordinance letting some businesses operate in outdoor tents to encourage social distancing and limit the spread of COVID-19.

The Board of Supervisors declared a local state of emergency for the pandemic on March 17, 2020, giving the county more flexibility to respond. In addition to enabling more outdoor dining and fitness activities, the board reduced fees for hospitality-related development and streamlined the process for establishing temporary medical facilities.

All of those provisions must end one year after the state of emergency concludes. The county told FFXnow this summer that the board could end its declaration in September, but the vote was evidently postponed, as staff were still reviewing the implications.

Staff have recommended that all of the emergency measures be allowed to lapse except the one for outdoor dining.

According to the county, 91 businesses have taken advantage of the ordinance since it took effect, though as of Sept. 1, the Department of Code Compliance only found five sites still using parking spaces for outdoor dining. When board members expressed surprise at that number, Josiah allowed that there may be more businesses that weren’t counted.

“We were working off a list that the health department gave us of all the eating establishments and food establishments that they licensed,” she said.

The administrative permits for outdoor dining will likely carry a $200 to $500 fee, similar to those offered for other temporary uses, such as farmers’ markets. In comparison, the minor site plan approval typically required costs $3,901.

To ensure compliance, staff suggested that the county could require businesses to regularly renew their permits, but the board appeared to lean away from the idea of expiration dates.

“I think the one thing the pandemic has clearly shown a lot of people is the beauty of the outdoors and dining outdoors,” Springfield District Supervisor Pat Herrity said, shouting out street closures in Old Town Leesburg and Alexandria. “…I’m clearly in favor of doing this as easily and as quickly and as flexibly as we can with no need to come back on the administrative permit.”

In a rarity, Board of Supervisors Chairman Jeff McKay was on the same page as his lone Republican colleague, noting that permits could always be revoked if there are issues with accessibility, noise, and other conditions.

According to Josiah, the county has gotten “relatively few complaints” about outdoor dining, but on a few occasions, tents have collapsed, though no injuries have been reported.

As was the case in the Town of Vienna, Mason District Supervisor Penny Gross predicted that noise will be the biggest challenge to address, singling out the Skyline Plaza in Bailey’s Crossroads as an area where amplified music has drawn complaints.

County Zoning Administrator Leslie Johnson noted that a separate special exception permit is required for public entertainment. Though the county has a noise ordinance to regulate sound levels, Gross said the outdoor dining ordinance should still include clear, specific guidelines on noise.

“I think we really owe it to the residents nearby,” Gross said. “I have a lot of residential areas that are hard up against the fence line of a shopping center, so we need to have that kind of protection in there.”

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