Cape Gazette
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Rehoboth approves patio ordinance

City moves quickly to clarify rules on outdoor seating
By Ryan Mavity | Dec 31, 2013
Photo by: File Rehoboth Beach officials unanimously approved an ordinance clarifying that any restaurant seeking to build a patio must get a permit of compliance and that a patio is an extension of the premises. The ordinance comes on the heels of the protracted legal case in which the Delaware Supreme Court said a proposed patio from Stingray Sushi Bar and Asian Latino Grill did not require a permit of compliance.

Rehoboth Beach — The Rehoboth Beach commissioners unanimously approved an ordinance clarifying that if a restaurant wants to add or enlarge a patio, the business must first get a permit of compliance.

Mayor Sam Cooper said the ordinance codifies the city's view that a patio is an extension of a restaurant.

The ordinance was passed in the wake of a protracted court case in which Delaware Supreme Court ruled Stingray Sushi Bar and Asian Latino Grill's plans for an outdoor patio are not an expansion of the premises. The court also agreed with Stingray attorneys that as a grandfathered restaurant, Stingray was not required to obtain a permit of compliance for a patio.

The ordinance was introduced and passed on the same night. Commissioner Stan Mills ultimately voted in favor of the ordinance after first questioning the process. Mills said the ordinance clarifies the code, but he disagreed with introducing an ordinance and approving it on the same night.

City Solicitor Glenn Mandlas said introducing and voting on the ordinance on the same night presented no legal problems.

Commissioner Patrick Gossett said the ordinance was merely a codification of the way the city has conducted business over the years.

In its case before Delaware Superior Court and Supreme Court, Stingray argued, successfully, that as a grandfathered restaurant, Stingray did not need a permit of compliance and a 730-square foot outdoor patio was not an extension of the premises because it did not expand the building.

Cooper said the ordinance was not rushed through; in his mind, the ordinance clarifies the city's practice: an outdoor patio is an extension of the premises and as such requires a permit of compliance.

Stingray is unusual: a restaurant larger than 5,000 square feet that is grandfathered from the zoning code.

Cooper said it was important to pass the ordinance to prevent other restaurants from building a patio without getting a permit of compliance.

A permit of compliance hearing, Cooper said, is the only opportunity for the public to be heard if a restaurant wants to build a patio.

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