Calaveras County Municipal Code Ch. 12.09 Outdoor Dining Encroachment Permits

A. The purpose of this chapter is to provide permanent options for outdoor food and beverage services that allow restaurant, bar, and tasting room owners to use the public right-of-way while contributing to the enjoyment of the public space and visitor experience.

B. The purpose of this chapter is also to ensure that these outdoor food and beverage service options are constructed and maintained in a manner that comports with the safety and accessibility needs of the public and with applicable federal, state, and local law.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. A permit under this chapter may be issued by the public works director to any lawfully operating dining and/or drinking establishment that wishes to serve customers in the public right-of-way fronting its premises and that files a complete application for this permit within eighteen months of the date outdoor dining encroachment permits are made available. A person or business issued a permit under this chapter shall be referred to as the "permittee."

B. No application submitted under this chapter will be processed absent confirmation from the environmental management agency director that the applicant has received all applicable state and local food and beverage service permits, licenses, and certificates and is in good standing with all food and beverage service regulatory bodies.

C. No application submitted under this chapter will be processed absent confirmation from the planning director that the food or beverage establishment is a permitted use in its zone or has successfully received all required use permits.

D. No application submitted under this chapter will be processed absent confirmation from the tax collector that the applicant has a current valid Calaveras County business license for the type of operation the applicant is seeking a permit for under this chapter.

E. A permit issued under this chapter is transferable to a successor-in-interest that:

1. Meets the eligibility requirements of this chapter upon the filing of a form provided by the public works director for this purpose and verification of eligibility under subsections B and D, and

2. Enters into the agreements required by [Section] 12.09.030(A)(2) and (4).

F. A permit under this chapter shall be issued only to a dining and/or drinking establishment primarily operating on an adjacent fixed premises located outside of the public right-of-way. Permits shall not be issued under this chapter for mobile food and beverage trucks, carts, stands, or other non-fixed dining and/or drinking establishments.

G. A permit under this chapter shall not authorize a right-of-way encroachment exceeding or extending beyond the width of the building containing the primary dining and/or drinking establishment, to be measured using the side of the building that is directly adjacent to public right-of-way for which the permit is to be issued.

H. A permit under this chapter shall not authorize a right-of-way encroachment along any street segment with a speed limit greater than thirty miles per hour or that interferes with any:

1. Designated fire or hydrant access;

2. Designated loading zone;

3. Designated disabled parking space or access point;

4. Public transit stop;

5. Bike lane;

6. Sidewalk or pedestrian pathway;

7. Crosswalk.

I. A permit issued under this chapter is not a permanent entitlement to occupy the public right-of-way. By allowing permittees to occupy the public right-of-way, the county in no way surrenders its ownership of or superior right to occupy this right-of-way.

J. The term "permitted premises," when used in this chapter, refers to that portion of the public right-of-way for which an encroachment permit under this chapter is issued.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. A dining or drinking establishment applying for a permit under this chapter must:

1. Submit a complete application on a form provided by the public works director.

2. Execute a maintenance and access agreement on a form provided by the public works director and approved by county counsel, which shall be recorded in the office of the county recorder. The agreement shall contain provisions memorializing the county's right to re-take possession of the right-of-way as described in [Sections] 12.09.060 through 12.09.080.

3. Submit a complete building permit application and plans to the Chief Building Official for any structure proposed to be built in the public right-of-way. "Structure", for purposes of this chapter, shall have the same meaning as it does in the California Building Code.

4. Execute an indemnification agreement on a form provided by the public works director, which shall be recorded in the office of the county recorder. The indemnification shall include, but not be limited to, any claims, damages, or injuries that occur to or within the permitted premises or within the active sidewalk area and/or street adjacent to it against the county or any utility provider whose facilities are located within or under the permitted premises. It shall also include any claims filed under the American Disabilities Act or any similar state or federal accessibility laws.

5. Provide a site plan acceptable to the public works director and chief building official.

6. Pay all applicable fees. Applicable fees shall include the existing fee required by public works to apply for an encroachment permit and the existing "all other" fee required by the building department to apply for a building permit that is not otherwise described in the department's fee ordinance (county code Section 3.53.010(A)).

7. Provide proof of a liability insurance policy satisfactory to the county administrative officer to protect the county from any potential claims which may arise from the encroachment.

B. The submission of an application for a permit under this chapter constitutes an acknowledgment by the applicant that the county or any utility provider whose facilities are located within or under the permitted premises shall have a right to inspect the permitted premises during all open hours and at any time in the event of an emergency.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. Permittees' use of the right-of-way shall at all times comply with the terms of the maintenance and access agreement.

B. Drainages and Access to Them.

1. Permittees shall at all times ensure that any drainages on the permitted premises flows freely and are not impeded or blocked.

2. Permittees shall at all times be responsible to maintain any and all drainages beneath any structure they build in the right-of-way to the exterior edges of the structure, including but not limited to any grates through which water flows into a drainage inlet or cleanout.

3. Permittees shall at all times ensure free and clear access for the county and any utility districts with jurisdiction over stormwater or drainage to any grates located either outside of or under a structure built in the right-of-way through which water flows into a drainage inlet or cleanout.

4. Structures built in the right-of-way must be constructed in a manner which will allow for quick removal during times that the county or utility district needs access for maintenance purposes. While the county will attempt to notify permittees of scheduled maintenance in advance, permittee assumes the risk that the county may need to move or remove the structure during maintenance activities and shall not be entitled to any damages or costs arising from such action, including but not limited to any loss of business or profits or damages or costs resulting from damage or destruction of permittee's structure or equipment.

C. Permittees shall at all times maintain two feet of clearance between the permitted premises, including all furniture and equipment located on it, and the vehicular travel way (at any height), and permittees shall ensure that their customers do the same. The vehicular travel way begins at the outer edge of the white line painted on the public road.

D. Permittees shall at all times maintain twenty feet of clearance between the permitted premises, including all furniture and equipment located on it, and the vehicular travel way (at any height) of any intersection, street corner, alley, or driveway.

F. Permittees shall not bolt into or otherwise penetrate into the surface of the road.

G. Permittees shall at all times ensure that their premises, their equipment or furniture on the premises, and their customers do not at any time impede pedestrian or wheelchair traffic on adjacent sidewalks.

H. Permittees shall at all times ensure that their construction, maintenance, and use of the permitted premises complies with Americans With Disabilities Act and all similar state or federal accessibility laws.

I. Permittees shall apply for and receive a building permit from the Calaveras County Building Official before commencing construction of any structures on the public right-of-way. Permittees shall not use or allow their customers to use any structure on the public right-of-way until the building permit has been finaled. Failure to receive a building permit for a structure to be built in the right-of-way will result in denial of the encroachment permit. Any application fees paid for a permit under this chapter will not be refunded in this instance, as the department of public works will have already expended the application fee revenue by vetting the encroachment permit application.

J. Permittees shall at all times comply with any and all fire and life safety codes, rules, and regulations.

K. Permittees may utilize seasonal, fire-approved temporary tents or shelters.

L. Permittees shall use the premises permitted under this chapter solely to serve customers food and/or beverages during the open hours of their associated dining and/or drinking establishment.

M. Permittees shall not prepare or cook any food or drink on the permitted premises.

N. Permittees may, within the capacity restrictions of this chapter, allow live music to be performed on the permitted premises during the open hours of their fixed premises.

O. Permittees shall comply with the county's noise ordinance.

P. Permittees shall not place any signage on the permitted premises except as may be printed on umbrellas.

Q. Permittees may use solar powered lights but not electrical lighting elements that contain wires.

R. Permittees shall construct forty-two-inch guard rails on the permitted premises in compliance with the California Building Code, or they may construct a similarly protective barrier approved by the Calaveras County Building Official.

S. Permittees shall at all times maintain a current, valid Calaveras County business license.

T. Permittees shall at all times maintain in good standing all licenses, permits, and certificates required of their food and/or beverage operation.

U. Permittees shall at all times ensure that the public right-of-way is free of debris and garbage.

V. Permittees shall at all times obey all laws, ordinances, and regulations that apply to their operation, whether these laws, ordinances, and regulations apply to their primary premises or to their use of the public right-of-way.

W. Capacity in the encroachment permitted under this chapter shall not at any time exceed the amount permittees are providing parking for in [Section] 12.09.050, and this maximum capacity shall be stated in the permit.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. Neither Chapter 17.70 of the county code nor the Murphys in-lieu parking fee program shall apply to permits issued under this chapter.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. A permit issued under this chapter and maintained in compliance with this chapter is valid for a period of five years unless revoked pursuant to Section 12.09.070. A permittee may apply for renewal of the permit on a form provided by the public works director for this purpose. A complete renewal application shall be submitted no sooner than ninety days and no later than thirty days prior to expiration of the prior permit.

B. A permit issued under this chapter shall automatically expire within ninety days of the closure of the permittee's associated dining and/or drinking establishment unless it is transferred in compliance with this chapter to a successor-in-interest within this period of time. If a new use is established on a premises formerly utilized as a dining and/or drinking establishment prior to the expiration of this 90-day period, the permit shall expire upon such time as the new use is commenced.

C. Upon termination of a permit under this chapter, the public works director shall record a document evidencing the concurrent termination of the agreements required to be recorded under [Section] 12.09.030.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. A permit issued under this chapter may be revoked by the public works director upon a determination at any time that there has been non-compliance with one or more provisions of this chapter or with the terms of any agreement required to be executed pursuant to this chapter.

B. Notice of the public works director's intent to revoke a permit under this chapter shall be sent by certified mail to the mailing address provided by the permittee on the application or most recent transfer form thirty days prior to the effective date of the revocation.

C. A notice of intent to revoke a permit can be appealed by the permittee within ten days of its mailing by filing an appeal to the public works director on a form provided for this purpose.

D. If an appeal is timely filed, a hearing shall be scheduled within thirty days by the office of the county hearing officer. The hearing shall be conducted utilizing the procedures described in Chapter 8.06 of the county code.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. The county reserves the right to re-occupy and/or re-take possession of the right-of-way at any time in the event of an emergency. Such right includes the right to dismantle or demolish any and all structures built in the right-of-way pursuant to a permit authorized under this chapter. While the county will endeavor to utilize the least destructive means of re-occupying or re-taking the right-of-way as circumstances reasonably allow, permittee assumes the risk that an emergency need might arise requiring the county to act as described in this section and shall not be entitled to any damages or costs arising from such action, including but not limited to any damages or costs resulting from destruction of permittee's property, equipment, or loss of business or profits.

B. The county reserves the right to re-occupy and/or re-take possession of the right-of-way upon ninety days advance written notice to permittee of a non-emergency county need to utilize the premises permitted through this chapter for some other county purpose. Should such notice be given, permittee shall be required to remove all structures and vacate the permitted premises by the deadline. Permittee assumes the risk that the county may need to re-take or re-occupy the right-of-way for a non-emergency reason and shall not be entitled to any damages or costs arising from such action, including but not limited to any loss of business or profits or damages or costs resulting from destruction of permittee's structure or equipment remaining on the premises after the deadline.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)

A. The county's code compliance unit shall enforce violations of this chapter pursuant to the provisions of Chapter 8.06 of the county code.

(Ord. No. 3175, § 1, 10-11-2022; Ord. No. 3189, § 1, 12-12-2023)