Beverly Hills Municipal Code Art. 35 Open Air Dining

A. No open air dining use shall be established in the public right of way or on private property unless an open air dining permit is approved pursuant to this article, except that rooftop open air dining uses shall be approved pursuant to section 10-3-3107.5.

B. Parking shall be provided for all open air dining uses pursuant to the provisions of section 10-3-2730 of this chapter, unless otherwise prohibited by law.

C. An application for an open air dining permit shall be filed with the Community Development Department or the Public Works Department in a form prescribed by that department.

D. If approved, an open air dining permit shall be valid for a period of five (5) years and may be renewed for additional five (5) year periods (with no maximum number of renewals) on the same terms and conditions as set forth in the original approval.

E. The city council may establish by resolution fees for the review of such applications. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 21-O-2843, eff. 10-15-2021; Ord. 24-O-2885, eff. 2-11-2024)

A. Any open air dining area proposed to be located in the public right of way or on private property, including those privately owned portions of the Robertson Boulevard sidewalk and excluding dining located in parklets, shall comply with all of the following requirements:

1. A minimum distance of not less than a six foot (6') wide pedestrian travel aisle shall be maintained on the public right of way at all times; to assure the required pedestrian travel aisle, all open air dining areas shall be set back a minimum of six feet (6') from the edge of the curb, any parklet located in the public right-of-way, and any fixed sidewalk obstruction including, without limitation, curb lines, tree wells, street trees, parking meters, water hydrants, light poles, utility equipment boxes, newspaper racks and bus benches.

2. The combination of open air dining on public and private property, excluding any dining located in a parklet, shall not exceed 50% of the interior gross square footage of the restaurant it serves.

3. If the open air dining is on private property, it must be located within the first 50' from the front and/or street side property line(s), but shall not preclude the use of interior building courtyards as defined in section 10-4-104 of this chapter for dining, and shall not be located less than 100' from residentially zoned properties.

4. Umbrellas located in the open air dining area shall provide a minimum seven and one-half foot (7.5') clearance from the ground to the lowest element of the umbrella canopy and shall be integrated into a railing or barrier. If a railing or barrier is not proposed, freestanding umbrellas may be permitted, and if permitted, shall provide an seven and one-half foot (7.5') clearance from the ground to the lowest element of the umbrella and be integrated into dining furniture. Umbrella canopies may project into the pedestrian path of travel provided a minimum ground clearance of 7.5' is provided, but no part of the umbrella base or any other part that could cause an obstruction to the pedestrian path of travel shall be allowed to extend beyond the open air dining area's permitted boundaries, and shall not be permitted to encroach into the pedestrian path of travel if there is a parklet adjacent to the open air dining area.

5. Portable heaters shall be located a minimum of three feet (3') from any combustible material and no part of any heaters shall be allowed to extend beyond the open air dining area's permitted boundaries.

6. Unless a permanent structure is approved pursuant to the permit, all fixtures in the public right-of-way must be stored out of public view during nonbusiness hours.

7. Open air dining areas with more than eight (8) chairs are required to provide a permanent barrier delineating the usable open air dining area from the remaining area of the public right of way. Open air dining areas without a barrier delineating the usable open air dining area may not position chairs so that they are facing the façade of the building.

8. Areas used for outdoor dining shall not extend beyond the building frontage of the associated restaurant space.

9. The material and design of any open air dining elements, which include tables, chairs, umbrellas, heaters, landscaping, and barriers/railings, shall be reviewed and approved pursuant to section 10-3-3007 of this chapter prior to installation.

10. If located on publicly owned property, an encroachment permit allowing establishment of an open air dining area must be obtained from the Public Works Department in a form satisfactory to the city attorney.

11. Open air dining is only allowed on public property that is located in the Business Triangle, as defined in section 10-3-2703 of this chapter, or limited to South Beverly Drive, Wilshire Boulevard, Olympic Boulevard, Robertson Boulevard, San Vicente Boulevard, South Santa Monica Boulevard, and La Cienega Boulevard.

12. If the open air dining is located within a commercial-residential transition zone, it may not operate during "extended hours" as defined in 10-3-1951, except as otherwise authorized through the issuance of an Extended Hours Permit pursuant to section 10-3-1958 of this chapter.

13. The open air dining does not interfere with public utilities.

14. Areas used for open air dining in the public right-of-way, the privately owned portions of the Robertson Boulevard sidewalk, and private property shall comply with all applicable provisions of the building code, including, but not limited to, maintaining proper building egress and ingress at all times, observing maximum seating capacities, providing proper circulation, and providing appropriate access to persons with disabilities.

B. An annual rental fee shall be imposed on the use or operation of open air dining areas located in the public right of way. The rental fee schedule shall be set by resolution of the city council. In the event that a permit is suspended pursuant to section 10-3-3509 of this chapter, rental fees shall not be required to be paid during the period of suspension. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 19-O-2789, 10-22-2019; Ord. 24-O-2885, eff. 2-11-2024)

A. Parklets located in the public right-of-way shall comply with the City's adopted guidelines for parklets, as maintained by the Department of Public Works. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 14-O-2661, eff. 6-20-2014; Ord. 24-O-2885, eff. 2-11-2024)

A. Notwithstanding subsections A1, A2, A3, A8, and A11 of 10-3-3502, the Director of Community Development may issue a discretionary Open Air Dining Permit to deviate from the required standards, as follows:

1. The Director of Community Development may permit a pedestrian travel aisle of not less than five feet (5') due to site constraints through issuance of an Open Air Dining Permit, unless the open air dining area is adjacent to a parklet.

2. The Director of Community Development may permit the combination of open air dining on public and private property to exceed 50% of the gross square footage of the restaurant it serves.

3. The Director of Community Development may permit open air dining located on private property to be located more than 50' from the front and/or street side property lines, or to be located within 100' of residentially zoned property.

4. The Director of Community Development may permit areas used for outdoor dining to extend beyond the building frontage for the associated restaurant space, provided that the authorization, in a manner satisfactory to the Director, is provided from both the adjacent property owner(s) and the ground floor tenant(s) in front of which the open air dining area is located.

a. Any open air dining area approved pursuant to this subsection shall be removed, at full cost to the restaurant owner, within 60 days from City notification that authorization from adjacent property owner/tenant is rescinded. Property owner/tenant is not required to provide a justification for rescinding their authorization approval. This subsection shall not be interpreted to restrict the ability of the City to require the open air dining area to be removed immediately in case of emergency circumstances upon reasonable notice from the City.

5. The Director of Community Development may permit open air dining on streets where open air dining is not otherwise allowed.

B. Required Findings for Discretionary Open Air Dining Permit. A discretionary open air dining permit shall be reviewed pursuant to the following findings and shall only be approved if all of the findings can be made:

1. The proposed open air dining use is consistent with the general plan and any specific plans adopted for the area.

2. The proposed open air dining use will not adversely affect existing and anticipated development in the vicinity and will promote the harmonious development of the area.

3. The nature, configuration, location, density, and manner of operation of any open air dining use proposed will not significantly and adversely interfere with the use and enjoyment of residential properties in the vicinity of the subject property.

4. The proposed open air 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.

5. The proposed open air dining use will not create any significantly adverse parking impacts as a result of employee or patron parking demands.

6. The proposed open air dining use will not create any significantly adverse impacts on neighboring properties as a result of:

a. The accumulation of garbage, trash or other waste;

b. Noise created by operation of the restaurant or by employees or visitors entering or exiting the restaurant;

c. Light and glare; or

d. Odors and noxious fumes.

7. The proposed open air dining use will not be detrimental to the public health, safety, or general welfare.

C. In approving an open air dining permit, the reviewing authority may impose such conditions as may be reasonably necessary to protect the public health, safety and general welfare, and to ensure that the proposed open air dining use is established and conducted in a manner which is consistent with this article and the development standards for the underlying commercial zone. The conditions imposed by the reviewing authority may include, but shall not be limited to:

• 1. The appropriate setback for the proposed open air dining use;
• 2. Pedestrian access and safety;
• 3. Parking requirements, to the extent allowed under law;
• 4. Barrier requirements;
• 5. The time limit on the permit. (Ord. 14-O-2661, eff. 6-20-2014; amd. Ord. 24-O-2885, eff. 2-11-2024)

A. Ministerial Open Air Dining Approval: Open Air Dining that complies with the standards in section 10-3-3502 of this chapter.

B. Director-Level Reviews/Discretionary Review for Open Air Dining: Open air dining projects that do not meet the standards identified for ministerial review in section 10-3-3502 of this chapter, and requests to deviate from standards as permitted by section 10-3-3504 of this chapter, shall require review by the Director of Community Development. The Director of Public Works shall refer parklets that deviate from the adopted guidelines with regard to building materials and finishes to the Community Development Department for compliance with the architectural review process.

1. If, in the opinion of the director, an application merits review by the Planning Commission, the Director may refer such application to the Planning Commission and the Planning Commission shall serve as the reviewing authority and shall conduct a noticed public hearing regarding the request. A public hearing shall be held by the planning commission on all applications for which it is the reviewing authority and public noticing shall be completed in accordance with article 2.5 of this chapter and the city's public notice guidelines. After issuance of any open air dining permit, the Director of Community Development will be able to review open air dining installations that are found to be problematic or operating in a manner not consistent with approvals.

C. Ministerial Parklet Approval: The Department of Public Works shall have the authority to issue approvals for parklets that comply with the adopted guidelines.

D. Director-Level Review/Discretionary Review for Parklets: Parklets that do not comply with adopted guidelines and propose to deviate from the guidelines shall be subject to approval by the Director of Public Works. If the parklet proposes to deviate from the guidelines with regard to building materials and finishes or aesthetics and signage, the Director of Public Works may refer this review to the Community Development Department for architectural review.

E. Notwithstanding the provisions of this section, if the application for an open air dining permit accompanies an application for any other type of discretionary approval from the planning commission or city council for the same site area, the planning commission or city council, as appropriate, shall be the reviewing authority for the application and shall conduct a noticed public hearing regarding the request. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 24-O-2885, eff. 2-11-2024)

Upon issuance pursuant to this article of an open air dining permit for a dining area in the public right of way, the permittee shall post and at all times while the permit is in existence, maintain a security bond and insurance.

A. The amount and form of the bond shall be designated by the reviewing authority at the time of approval of the open air dining permit, and shall be in an amount which is determined to be sufficient for removal of the open air dining area in the event the permittee fails to comply with the conditions of the permit. The form and content of the bond shall be satisfactory to the city attorney. The bond may be waived where it is determined that the potential for any injury to the city from the existence of the open air dining area is minimal. Any security bond required by this section may be cash, or cash equivalent security approved by the city attorney and the risk manager, or a bond in accordance with title 3, chapter 4 of this code.

B. The amount of insurance shall be designated by the city risk manager at the time of approval of the open air dining permit, and shall be in an amount which is determined to be sufficient to adequately protect the city, persons, and property from injuries or damages which may be caused by the use or operation of the open air dining area authorized by the permit. Insurance which is required under this section shall comply with the provisions of title 3, chapter 4 of this code. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 24-O-2885, eff. 2-11-2024)

Any decision of the director pursuant to this article may be appealed to the planning commission in a manner consistent with the procedures set forth in title 1, chapter 4, article 1 of this code. Any decision of the planning commission regarding an open air dining permit may appeal the decision to the city council in the manner provided by title 1, chapter 4, article 1 of this code. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 24-O-2885, eff. 2-11-2024)

If the Director of Community Development or Director of Public Works, determines that evidence support grounds for revocation or suspension of an open air dining permit, including a permit for dining in a parklet, and the Director(s) believes that such evidence is adequate to support revocation or suspension, then the Director may initiate a revocation or suspension proceeding.

The Director of Community Development or Director of Public Works, may revoke or suspend the open air dining permit if the Director(s) determines that:

A. The permittee has violated any condition imposed on the permit approval, or violated any provision of this code that governs, in whole or in part, the activity for which the permit was granted or the land on which it is located; or

B. The permit was obtained in a fraudulent manner; or

C. The operation of the open air dining use constitutes or creates a nuisance; or

D. The operation of the open air dining use violates any provision of article 19.5 of this chapter. (Ord. 11-O-2615, eff. 12-16-2011; amd. Ord. 24-O-2885, eff. 2-11-2024)