Business tent definition, ordinance referred to Dewey council

Town seeks to allow outdoor dining enhancement for legal nonconforming restaurants
January 30, 2023

Following a public hearing and discussion of the definition and usage of tents in the business district, the Dewey Beach Planning and Zoning Commission voted unanimously Jan. 21 to recommend draft ordinances to town council.

The decision comes after a unanimous Dec. 16 vote by town commissioners to refer the drafts to planning and zoning for review.

After some questions by planners on the use of tents in residential districts, Town Counsel Fred Townsend said the ordinance is restricted to businesses only. 

Currently, he said, a restaurant with a conditional-use permit would seek modifications to its permit to erect a tent over an outside service area. Existing restaurants that are legal nonconforming can’t make use of that method because they don’t have conditional-use permits. 

If the ordinance is adopted, restaurants would not have to come before the town to seek permission through the double public hearing process to erect a tent over an outside service area, he said.

Highway One attorney Stephen Spence said at his client’s restaurant Jimmy’s Grille, a canopy didn’t fare well due to weather conditions, so his client wanted to erect a tent.

Tents over outdoor service areas improve the customer experience and reduce weathering of the deck, particularly at another of his client’s restaurants, the Rusty Rudder, Spence said, noting that hot summer days drive down patron usage of the deck.

In the past, he added, the Rudder received pushback from the town, which he said expressed uncertainty over allowing the erection of a tent or canopy over the deck because it could be deemed an expansion. Much less capital expense is involved with erecting a tent than with building a permanent structure, he said.

Town code doesn’t answer the question of whether a tent is permitted over outdoor service areas in legal nonconforming restaurants, he said, so he drafted the original proposed ordinance to assist the town.

Referencing the Dewey Board of Adjustment’s Sept. 15 approval to grant variances and a special exception to The Starboard to permanently maintain outdoor dining, including the use of a tent over a former parking lot, Spence said he is not critical of how The Starboard received its approval.

“Our view was, let's try to clarify [code] so that we’re not trying to do something that's not permitted and we’re not having to fight with everybody about it,” he said.

Spence said his client Alex Pires would establish a tent in an existing, approved conditional-use outdoor service area or a nonconforming existing outdoor service area.

“At one public hearing, Mr. Pires was sufficiently frustrated with what was happening at The Starboard that he was suggesting he was going to put a tent up in his parking lot,” Spence said. “But I think that was because, if you think about what was happening, that's exactly what The Starboard was doing ... but again we’re not here to argue that particular point.”

Under the proposed ordinance, a tent would be defined as a structure with a membrane or fabric roof that is attached to the ground, deck, patio or similar structure; anchored for support and safety; and enclosed or will be enclosed on one or more sides by a roll-down or attached flexible, clear material. Construction of a tent must meet town and county building requirements and fire marshal approval where required.

The proposed ordinance for tent usage would add new language in the zoning code to say that tents covering conditional-use-approved outside service areas or existing nonconforming outdoor services are permitted, subject to building code, fire marshal and setback requirements in all Resort Business districts.

A public notice has been posted for a public hearing on the issue at the next commissioners’ meeting, set for 3 p.m., Friday, Feb. 17. Go to


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