Chapter 12.23
SIDEWALK DINING PERMITS
Sections:
12.23.050 Sidewalk dining permits.
12.23.055 Determination of impact.
12.23.060 Insurance requirement.
12.23.010 Purpose.
This chapter is intended to describe minimum requirements and processes for sidewalk dining permits within the public right-of-way. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.020 Permit required.
A. Unless specifically exempted herein, no person shall use or encroach upon any public place without first obtaining a permit from the City of Ferndale.
B. Sidewalk Dining Permit. A sidewalk dining permit may be issued only within the City Center zone, and is required for those businesses wishing to establish an outdoor dining area on sidewalks within the Downtown core, pursuant to FMC 12.23.050. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.030 Definitions.
A. “Clear zone” means a minimum 48-inch area along the entire length of a sidewalk dining area that is kept clear of any obstructions including chairs, tables, barriers, lines, customers, employees, or similar for the purpose of providing clear and unobstructed access to pedestrians including disabled persons along the sidewalk.
B. “Dining establishment” means, collectively, those businesses engaged in the preparation and sale of food and beverages, including restaurants, bars and taverns as defined in Chapter 18.08 FMC.
C. “Sidewalk dining area” means that area on City sidewalks within the public right-of-way adjacent to and directly in front of an existing or proposed dining establishment, where food and beverages sold in the adjacent establishment may be consumed; and featuring tables, seats, benches or similar elements that are removed at the close of business each day.
D. “To encroach” means to construct, erect or maintain in, over or under any public place, right-of-way, easement, roadway, parking strip and/or sidewalk, including the airspace above them, any structures permanent in nature, including but not limited to building entrance/exit, extension, marquee, fence, retaining wall, artwork, foundations, footings, sidewalks, hard surface, or any other building or structure.
E. “To use” means to place or maintain in, over or under any public place, right-of-way, roadway, parking strip and/or sidewalk, including the airspace above them, any temporary or movable object. Unpermitted use of public property is prohibited as per FMC 10.08.070.
F. “Work by or for the City of Ferndale” means construction or maintenance activities completed by City employees, or construction or maintenance activities provided by professional third parties under contract with the City to perform such work. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.040 Exemptions.
The following shall be exempt from the permit requirements of this chapter. However, additional permits and/or reviews required by other regulations of this chapter may be required, and proponents are expected to request utility locates prior to commencing any work within the public right-of-way or easements.
A. Sidewalk dining establishments on private property that encroach less than 24 inches onto the public sidewalk during business hours, are removed from the public right-of-way at the close of business each day, and which do not obstruct pedestrian or motorist traffic. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.050 Sidewalk dining permits.
The City Center zone (Chapter 18.46 FMC) and the Downtown Architectural and Site Design Standards (Chapter 18.47 FMC) seek to encourage pedestrian activity and a unique experience within the Downtown core. In an effort to enhance the unique sense of place, sidewalk dining is allowed within the City Center zone. In addition to information required by other applicable City code, applications for sidewalk dining permits shall include:
A. Copy of Ferndale City business license.
B. Proposed site plan, drawn to a legible scale, showing:
1. The location, number, and dimension of all tables, chairs, bars, benches, and other seating or dining areas, including aisles (if applicable) for wait staff.
2. Dimensions of clear zone(s).
3. Location of proposed barriers and signs.
4. Location of property or lease lines.
C. Copy of Whatcom County Health Department approval.
D. If alcohol is to be served, copy of approval by the Washington State Liquor and Cannabis Board. The Ferndale Police Department shall also review applications which include the sale of alcohol.
E. Proposed maintenance plan showing provisions to clean the sidewalk dining area and adjoining areas no less than once per day.
F. Completed sidewalk dining permit, including indemnification of the City of Ferndale.
G. Insurance policy naming the City of Ferndale as an additional insured in an amount not less than $1,000,000 in accordance with FMC 12.23.060.
H. Permit application fees paid pursuant to the City’s fee code.
I. Acknowledgment of responsibilities to remove all nonpermanent elements during permanent events, at the close of business each day, and the potential for removal without notice during emergencies.
J. Acknowledgment of the City’s right to revoke the sidewalk dining permit at any time due to noncompliance, life-safety or health risks, and/or for obstructing or causing a nuisance to pedestrians or motorists. Such acknowledgment and the City permit must be kept on site at all times.
K. Material or photographic examples of proposed tables, chairs, barriers or other equipment and materials, to be reviewed in accordance with the provisions of Chapter 18.47 FMC (Downtown Architectural and Site Design Standards).
L. Demonstration that all proposed tables, chairs, barriers or other equipment and materials associated with the sidewalk dining facility are temporary in nature. The applicant shall be required to demonstrate that all such items can and will be removed from the public right-of-way each day at the close of business.
M. Such other information as the Public Works and Community Development Directors or their designees shall require in order to ensure that:
1. The sidewalk dining proposal is adjacent to an existing or proposed dining establishment under the same ownership, and does not extend beyond the frontage occupied by the adjacent business.
2. A minimum clear zone of no less than 48 inches (four feet) is provided for pedestrians along the sidewalk.
3. Adequate space has been provided to facilitate the entrance and exit of vehicles and vehicle doors along the public right-of-way.
4. The sidewalk occupied by the business and for 50 feet in either direction of the business is maintained and cleaned before and after each business day.
5. Pedestrians and motorists are not unnecessarily encumbered by the sidewalk business.
6. The applicant has notified the owners of businesses adjacent to the proposed business of their intent to open a sidewalk dining area.
7. The applicant is aware that nothing herein shall be interpreted to grant any permanent defacement of public property, nor the installation of permanent structures or anchors within the public right-of-way, with the exception of awnings that may be permitted per Chapters 18.46 and 18.47 FMC. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.055 Determination of impact.
A. Upon receiving an application for a revocable sidewalk dining permit, the City shall determine the extent to which the proposal and associated development are likely to create an impact on the City’s infrastructure associated with the physical construction of the encroachment and the associated development. The City is also authorized to request information from the applicant in order to determine whether the land use proposed as a result of the encroachment is likely to create an impact on the environment, City utilities, the City transportation network, or other land uses, and to identify potential measures necessary to mitigate the impact.
B. The City is authorized to require specific mitigation measures in order to mitigate the impacts of a sidewalk dining encroachment and any associated development and may deny the application or revoke an approved application should the applicant fail to mitigate these impacts or fail to avoid such impacts in the future.
1. Upon receipt of sidewalk dining permit application, the Public Works Director shall consult with City staff to determine whether the proposed encroachment and the land use associated with the proposed encroachment have been evaluated by the City for impacts, and whether there is a potential for impacts. If it is determined that there is a potential for impacts, the City shall require that the applicant complete at minimum an impact checklist similar to the City’s SEPA checklist described in Chapter 16.04 FMC (Environmental Policy). In some cases, the City may waive this requirement, if a valid environmental checklist has already been provided. However, the City retains the right to require an additional checklist or impact study or the ability to review existing checklists, should those checklists have been administered by jurisdictions outside the City of Ferndale.
2. No additional public or agency public comment period is required for the review of environmental checklists described by this section, if a SEPA environmental review has already been conducted by another jurisdiction. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.060 Insurance requirement.
A. Sidewalk dining permits require that the applicant who operates the business provide and continually maintain during the term of the permit a certificate of insurance naming the City as an additional insured, with respect to liability, and providing that it shall be primary as to any other policy of insurance. The policy must contain the additional insured statement, coverage amounts of no less than $1,000,000 and cancellation notification indicated on the sample insurance form provided by the City. In addition, the applicant shall sign a covenant to hold harmless and indemnify the City. Such covenant shall be retained in the City’s files for the duration of the business activity.
B. The City will not issue the permit until proof of such insurance is provided. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.070 Revocation.
A. Except as provided below, all permits approved under this chapter shall be temporary, shall vest no permanent right and shall be issued and may in any case be revoked at the sole discretion of the City upon 30 days’ notice, or without notice in the event any such use or occupation shall become dangerous; any structure or obstruction so permitted shall become insecure or unsafe; shall become a public nuisance; or shall not be constructed, maintained or used in accordance with the provisions of this chapter or the application materials submitted for review. The determination by the City Building Official that a structure is dangerous, insecure, unsafe, a nuisance or has not been constructed, used or maintained in accord with this chapter and applicable codes and standards shall be conclusive.
B. Permits shall also be revoked if:
1. Following written notice of the lapse of an insurance policy required to be maintained by FMC 12.23.050(G) and 12.23.060, the permittee fails to supply a valid certificate of insurance; or
2. Following written notice of the lapse of an annual application fee, renewal fee, or fees for the exclusive use of the right-of-way, the permittee fails to bring fees/account current.
3. If a change in ownership occurs, the application shall be automatically revoked pending additional information from the new owner. The new owner is required to submit a revised application to the City for review and approval with updated owner and site information, as necessary prior to establishing new sidewalk dining areas or prior to utilizing existing sidewalk dining areas.
C. If any such structure, obstruction, use or occupancy is not discontinued on notice to do so by the City and within the time period designated, the City may remove any structure or obstruction, or make such repairs upon the structure or obstruction as may be necessary to render the same secure and safe, at the expense of the permittee, or his successor, and such expense may be recorded as a lien and otherwise collected in the manner provided by law. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.080 Denial.
The Public Works Director or their designee may reject or deny a sidewalk dining permit application when he/she determines that any of the following apply:
A. Encroachment into the public right-of-way at the location proposed is prohibited by recorded documents associated with the property.
B. The Ferndale Municipal Code, the Ferndale Development Standards and/or other adopted codes, regulations and standards prohibit encroachment of the type and/or quality proposed.
C. Insufficient area exists to preserve a 48-inch pedestrian clear zone and automobile ingress/egress for sidewalk dining facilities.
D. An encroachment would result in a threat to life or safety.
E. City maintenance costs could be cost prohibitive.
F. The sidewalk dining permit application includes information that is false, misleading or is intentionally erroneous.
G. The sidewalk dining permit application and information provided by the applicant do not comply with current standards in effect at the time of application, as required by subsection (B) of this section.
H. Work proposed is within a public right-of-way not controlled by the City at the time of application, either as the result of separate ownership or as part of an ongoing capital project in which state or federal control supersedes City control.
I. An alternative design or location is available to the applicant that would reduce or eliminate potential impacts to the City, and would not cause a hardship to the applicant. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.090 Appeal.
Final decisions of the Public Works or Community Development Director or their designees may be appealed pursuant to FMC 14.11.070. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.100 Violation.
Enforcement procedures and the penalties resulting from violations of this chapter shall be administered pursuant to Chapter 1.12 FMC. (Ord. 2142 § 2 (Exh. 2), 2020)
12.23.110 Fees.
Application fees for sidewalk dining permits are those established by the City Council and shall be paid prior to issuance of any permit pursuant to the Unified Fee Code. (Ord. 2142 § 2 (Exh. 2), 2020)