Chapter 17.33
SIDEWALK DINING WITHIN THE PUBLIC RIGHTS-OF-WAY
Sections:
17.33.060 Application submittal requirements.
17.33.090 Revocation of a sidewalk dining permit.
17.33.100 Annual lease required for use of right-of-way.
17.33.010 Purpose.
The intent of this chapter is to provide for incidental sidewalk dining areas connected to, and operated in conjunction with, permanent commercial uses located inside an adjacent building; provided, that such uses complement existing storefronts and do not block access to doorways or the public rights-of-way. To ensure the public health, safety and welfare of the community, this chapter provides a mechanism for the City to permit sidewalk dining areas and to establish criteria to ensure that sidewalk dining areas conform to certain dimensional standards. This chapter also provides a mechanism to ensure that sidewalk dining areas are compatible with, and have no adverse effect on, surrounding development. Creativity in the design of sidewalk dining areas is encouraged and the quality, character and design of all items placed outside shall contribute in a positive way to a high quality visual appearance of the community. (Ord. 654 § 3, 2008).
17.33.020 Applicability.
This chapter is applicable to restaurant and retail food establishments in the commercial land use districts. This chapter is not applicable to permanent benches which are not considered a component of sidewalk dining. (Ord. 654 § 3, 2008).
17.33.030 Permit required.
No sidewalk dining shall be established unless an administrative conditional use permit is approved by the Planning and Building Director in accordance with the provisions of this title and chapter. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the regulations under this chapter to fail to comply with its provisions. (Ord. 654 § 3, 2008).
17.33.040 Procedures.
A. The Planning and Building Director shall review each application for sidewalk dining under the conditional use permit provisions contained in Chapter 17.40 CMC to determine whether the requirements of this chapter have been met.
B. The Planning and Building Director shall review an application and issue a conditional use permit if all of the following requirements have been satisfied:
1. Written notice of the application for a conditional use permit shall be mailed to all property owners and business owners within 300 feet of the proposed sidewalk dining area. Such notice shall be given not less than 10 days before the date of application is scheduled for a decision by the Planning and Building Director.
2. If substantial concerns are raised by surrounding property owners or business owners, the proposed establishment shall be referred to the Planning Commission for review and approval pursuant to Chapter 17.40 CMC.
3. If the Planning and Building Director denies an application for a conditional use permit, that determination may be appealed to the Planning Commission in accordance with CMC 1.20.020. (Ord. 654 § 3, 2008).
17.33.050 General provisions.
Sidewalk dining establishments shall be permitted in the public rights-of-way within any commercial zoning district when ancillary to restaurant and/or retail food establishments which provide food or beverages for individual consumption, provided the following standards are met:
A. A minimum distance of not less than four feet wide pedestrian travel aisle shall be maintained in the public right-of-way at all times. Additionally, all sidewalk dining areas shall be set back a minimum of five and one-half feet from the edge of the curb or as approved by the Public Works Director, where parking is available adjacent to said curb, and any fixed sidewalk obstruction including, without limitation, curb lines, tree wells, street trees, fire hydrants, light poles, utility equipment boxes, newspaper racks and benches;
Sidewalk dining areas shall not intrude on pedestrian “clear zones” at corners, and thus shall be set back a minimum of 10 feet from any crosswalk, driveway or alley. Sidewalk dining areas shall not interfere with curbs, ramps or driveways, as determined by the Public Works Director;
B. All sidewalk dining areas shall be adjacent to, and incidental to, the operation of an indoor restaurant. Use of the sidewalk shall be confined to the actual sidewalk and public right-of-way frontage of the indoor restaurant building;
C. Umbrellas located in the sidewalk dining area shall have a minimum seven-foot clearance from the ground to the lowest element of the umbrella and shall be located completely within the approved boundaries of the permitted sidewalk dining area;
D. Portable heaters shall not be allowed;
E. Umbrellas with logos shall not be allowed;
F. Outdoor speakers shall not be allowed;
G. Unless a permanent structure is approved pursuant to the use permit, all fixtures and furniture used in a sidewalk dining area shall be removed from the public right-of-way and stored out of public view during nonbusiness hours;
H. Sustainability measures and recycling programs shall be considered to the maximum extent practicable. Proposed furniture shall be of high quality material and weight to ensure durability;
I. The sidewalk dining area shall comply with all applicable provisions of CMC Title 15, including, but not limited to, maintaining proper building egress and ingress at all times, observing maximum seating capacities, providing proper circulation and providing appropriate handicapped access;
J. No additional parking shall be required;
K. The sidewalk dining area shall only operate between 7:00 a.m. to 30 minutes of the end of normal business hours;
L. The sidewalk dining area shall be cleared of nonpermanent sidewalk dining furniture within 30 minutes of the closing of the sidewalk dining operation;
M. The service of alcoholic beverages shall be restricted solely to on-premises consumption by customers within the sidewalk dining area. Each of the following standards apply to alcoholic beverage service:
1. The sidewalk dining area must be immediately adjacent to and abutting the indoor restaurant that provides it with food and beverage service;
2. The sidewalk dining area must be clearly separated from pedestrian traffic;
3. The operator shall post a written notice to customers that the drinking or carrying of an open container of beer or wine is prohibited and unlawful outside the sidewalk dining area;
4. The sidewalk dining operation must be duly licensed by the State Department of Alcoholic Beverage Control (ABC) and shall demonstrate conformance to any and all requirements of the ABC in the application for a sidewalk dining permit;
N. Sidewalk dining is an interruptible or terminable privilege. The City shall have the right and power, acting through the City Manager and his/her designee, to prohibit the operation of a sidewalk dining area at any time because of anticipated or actual problems or conflicts in the use of the sidewalk area. Such problems and conflicts may arise from, but are not limited to, scheduled festivals and similar events, or parades or marches, or repairs to the street or sidewalk, or from demonstrations, or emergencies occurring in the area. To the extent possible, the permittee shall be given prior written notice of any time period during which the operation of the sidewalk dining area will be prohibited by the City. (Ord. 654 § 3, 2008).
17.33.060 Application submittal requirements.
Prior to establishment of a sidewalk dining establishment, an application must be submitted to and approved by the Planning and Building Director. Each application shall state the name of the applicant, the name and address of the establishment, the proposed area to be occupied by the tables and chairs, and the hours and days that the area is to be so occupied. The application shall be accompanied by a professionally prepared space use plan indicating the location, number and arrangement of the tables and chairs to be used, the location of the entrance to the establishment, and the location of any existing sidewalk obstructions within 20 feet from the proposed location of the proposed outdoor dining area. Trees, traffic signs, benches and all similar obstacles shall constitute obstructions. (Ord. 654 § 3, 2008).
17.33.070 Findings for Planning and Building Director approval of administrative conditional use permits for sidewalk dining uses.
The Planning and Building Director shall approve an application and issue a sidewalk dining permit, provided the following findings can be made:
A. The proposed sidewalk dining use is consistent with the General Plan and zoning district;
B. The proposed sidewalk dining use will not adversely affect the health, safety and welfare of existing and anticipated development in the neighborhood and will promote the harmonious development of the area;
C. The proposed sidewalk dining use will not create any significant traffic impacts, traffic safety hazards, pedestrian-vehicle conflicts, or pedestrian safety hazards and will not impede the safe and orderly flow of pedestrians along the public right-of-way;
D. The proposed sidewalk dining use is compatible with the use and enjoyment of surrounding uses;
E. The proposed sidewalk dining use does not unlawfully alter the associated use of the abutting property; and
F. If the Planning and Building Director approves the service of alcohol in a sidewalk dining area, the approval shall be based upon a finding that serving of alcohol would not create a nuisance to passersby or to adjoining businesses, or otherwise create a danger to public health, safety or welfare. (Ord. 654 § 3, 2008).
17.33.080 Conditions for Planning and Building Director approval of administrative conditional use permits for sidewalk dining uses.
In approving a conditional use permit for sidewalk dining, the Planning and Building Director may impose such conditions as may be reasonably necessary to protect the public health, safety and general welfare and to ensure that the proposed dining use is established and conducted in a manner which is consistent with this chapter and the development standards in the underlying commercial district. The conditions imposed by the Planning and Building Director may address and require, but shall not be limited to, the following:
A. The appropriate setback for the proposed dining use;
B. Pedestrian access and safety;
C. Barrier requirements;
D. Time restrictions;
E. An encroachment permit for sidewalk dining;
F. A hold harmless agreement executed and provided to the City prior to establishment of sidewalk dining;
G. This conditional use permit is not transferable to any entity or person and is valid only to the original applicant;
H. Establishment of sidewalk dining shall not involve any modification of the texture of the surface of the public walkway;
I. No amplified music or entertainment is permitted outdoors;
J. Roof coverings shall not have the effect of creating a permanent enclosure;
K. All sidewalk dining areas shall be continuously supervised by management or employees of the business to which they are connected to ensure required pathways are kept clear and to ensure that the sidewalk dining area remains clean;
L. All entrances and emergency exits shall be kept free of obstructions of ingress and egress;
M. No items may be placed in existing planted areas, with the exception of a lawn area;
N. All signage must comply with Chapter 17.58 CMC;
O. No outdoor storage shall be permitted in conjunction with any outdoor use; and
P. Plastic furniture shall be discouraged. (Ord. 654 § 3, 2008).
17.33.090 Revocation of a sidewalk dining permit.
A sidewalk dining permit may be revoked by the Planning Commission following notice to the permittee and a noticed public meeting pursuant to Chapter 17.40 CMC. The permit may be revoked if the Planning Commission finds that:
A. One or more conditions of the permit, or of this chapter, have been violated;
B. The sidewalk dining area is being operated in a manner which constitutes a nuisance; or
C. The operation of the sidewalk use unduly impedes or restricts the movement of pedestrians. (Ord. 654 § 3, 2008).
17.33.100 Annual lease required for use of right-of-way.
An annual lease and fee shall be imposed on the use of sidewalk dining areas located in the public right-of-way. The lease fee schedule shall be set by resolution of the City Council and may change from time to time by adoption of a City Council amending resolution. In the event that a permit is suspended, lease fees shall be required to be paid during the period of suspension. (Ord. 654 § 3, 2008).
17.33.110 Public liability.
A. Indemnification of the City.
1. As a condition of issuance, the approved applicant and any person acting under or pursuant to said approval agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent, or groundless) to the maximum extent allowed by law the City Manager, the City of Calistoga, its City Council, and each member thereof, and its officers, employees, advisory board members and representatives, from and against any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney’s fees and costs of litigation) which in whole or in part result from, arise out of, or are claimed to result from or to arise out of, any acts, negligence, errors, or omissions of the approved applicant, its employees, representatives, contractors, subcontractors, or agents by reason of or arising out of, or in any matter connected with, any and all acts, operations, or privileges authorized, allowed or undertaken pursuant to the use approval under their ordinance including, without limitation, any condition or property used in operations.
2. This agreement of indemnity includes, but is not limited to, personal injury (including death at any time) and property or other damage sustained by any person or persons (including, but not limited to, companies, corporations, approved applicant and its employees or agents, and members of the general public).
3. As a further condition of issuance of the approval, the approved applicant covenants not to sue the City Manager or designee, City, its City Council and each member thereof, and its employees, agents and representatives and shall cause its insurers to waive subrogation against the same with respect to any action, claim or demand in any way resulting from or connected with any or all undertakings and operations conducted pursuant to the use approval.
B. Liability Insurance. The approved applicant shall be required to have general liability insurance providing for the following limits naming the City of Calistoga an additional insured in the following minimum amounts: $500,000 per person; and $1,000,000 per occurrence, with additional $1,000,000 umbrella coverage. (Ord. 654 § 3, 2008).