Article 4 — Establishments Where Food or Beverages are Served

The purpose of this article is to regulate and provide development standards for establishments where food or beverages are served. The proximity of residential uses to these types of establishments is a concern of this article. Where the distance criterion of 200 feet from residentially-zoned property is given in this article, it shall be measured from the property line of the site to the property line of the nearest residentially-zoned property. This article also establishes requirements for outdoor dining areas to support long-term economic viability of local establishments, promote vitality in the city's commercial areas, promote progress towards creating walkable communities by facilitating pedestrian-friendly and safe public spaces, and facilitate and incentivize enhanced city dining experiences. (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 2024-01, 1/16/2024)

Establishments where food or beverages are served are subject to the review and approval procedures shown in Table 13-47 (a) and (b). In instances where more than one review procedure is applicable to an establishment, the more stringent procedure shall apply.

Notes:

• 1 Temporary Use Permits for outdoor dining areas, including parklets within the public right-of-way, approved through Urgency Ordinance 2020-15 may continue to operate with staff approval; however, shall comply with applicable Building and Fire Code requirements, may not interfere with minimum required site access or circulation, and shall comply with the aesthetic development standards outlined in section 13-48 within six months from the time of ordinance adoption, with an allowed sixmonth extension of time. Outdoor dining areas approved under a temporary use permit shall also be subject to applicable fees. Any modifications to these outdoor dining areas shall be approved pursuant to this article.

• 2 For the purposes of this table, the symbols shall have the following meaning: P=Permitted; MC=Minor Conditional Use Permit.

(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 2024-01, 1/16/2024)

Establishments where food or beverages are served are subject to the following development standards.

• (a) Existing and newly constructed establishments that propose new outdoor dining areas within courtyard, parking, setback or interior landscaped areas may be approved pursuant to this article. Development standards provided in section 13-48(b)(1) applies to all outdoor dining areas. Additional development standards apply to outdoor dining areas within parking areas (section 13-48 (a)(2)) and/or setback areas (section 13-48 (a)(3)).

  • (1) Development standards for all outdoor dining areas:

    • a. Subject to the discretion of the reviewing authority, and where practical, feasible and safe, outdoor dining areas shall be located on a development site with preference given in the order of: (1) courtyards, plazas, or oversized walkways and front setbacks; (2) existing rear setbacks; and (3) existing areas.

    • b. Where practical, feasible and safe and to promote the local vitality, outdoor dining areas shall be located on a development site with preference given to areas that can be seen from the public rights-of-way or pedestrian activity areas, compared to areas that cannot be seen from these locations.

    • c. Outdoor dining areas shall be maintained in good condition, kept clean and shall not result in conditions which are harmful or injurious to the public health, safety and welfare.

    • d. Outdoor dining areas shall be removed and the areas returned to previous conditions if the corresponding food and beverage establishment is replaced by a non-food and beverage establishment, or if the outdoor dining area is no longer in use.

    • e. Outdoor dining areas and their corresponding restaurant must comply with all applicable Building and Fire Safety code requirements, circulation standards, and aesthetic development standards outlined in section 13-48 at the time of their construction. Outdoor dining areas approved under Urgency Ordinance No. 2020-15 must comply with all applicable Building and Fire Safety requirements, may not interfere with minimum required site access or circulation and shall comply with the aesthetic development standards outlined in section 13-48 within six months from the time of ordinance adoption, with an allowed six-month extension of time.

    • f. All outdoor dining areas shall observe state and local health guidelines for restaurants.

    • g. Outdoor dining areas shall not be counted as gross floor area when calculating required parking for an establishment where food or beverages are served.

    • h. Outdoor dining areas shall be located adjacent to their applicable food or beverage establishment. In this case, "adjacent" includes locations separated from the subject restaurant by a single pedestrian walkway and/or single vehicular drive aisle, or a single pedestrian walkway and/or two parking spaces perpendicular to the building and outdoor dining area. Outdoor dining areas may be located further from the subject restaurant when authorized by a minor conditional use permit.

establishment. In this case, "adjacent" includes locations separated from the subject restaurant by a single pedestrian walkway and/or single vehicular drive aisle, or a single pedestrian walkway and/or two parking spaces perpendicular to the building and outdoor dining area. Outdoor dining areas may be located further from the subject restaurant when authorized by a minor conditional use permit.

  - i. A minimum four-foot-wide pedestrian access to the entryways of all establishments on the subject property shall be provided. 

  - j. Pedestrian ingress/egress to the subject establishments or businesses may not be obstructed. 

  - k. Any proposed outdoor dining area covers (including, but not limited to, canopies, tents or shade covers) will require Fire and Building Department's approval prior to installation, and shall not be located within required setbacks. Umbrellas shall be exempt from this requirement. Outdoor dining area covers/structures may encroach into a setback area with approval of a minor conditional use permit. To allow views to remain open and unobstructed, such shade structures shall not obstruct more than 50% of the façade area along the property line(s) with either vertical (e.g., posts) or horizontal elements (e.g., planters, sloped awnings) with a minimum 24 inches between the shade cover and any fences, walls, or other similar structures such that the outdoor seating area is not enclosed. 

  - l. Outdoor areas may be temporarily enclosed during inclement weather with temporary structures as approved by the city's building and fire department. 

  - m. Outdoor dining areas may not encroach into drive aisles or other vehicle circulation areas. 

  - n. Any service of alcoholic beverages in outdoor dining areas will be subject to approval by the California Department of Alcoholic Beverage Control and shall adhere to all requirements and standards implemented by said state agency. 

  - o. Outdoor dining will be required to be closed between 11:00 p.m. and 6:00 a.m.; unless approved as part of a use permit as indicated in Table 13-47(a). 

  - p. Noise concerns shall be addressed in a timely manner pursuant to Title **13** , Chapter XIII of the Costa Mesa Municipal Code. A contact phone number shall be posted at the establishment's entrance and outdoor dining area so any noise concerns can be reported to the business operator. Outdoor dining areas shall be subject to review by authorized city officials to ensure that noise complaints and/or potential noise ordinance violations are addressed. If necessary, modifications of the operating characteristics of outdoor dining areas may be required. If any noise complaints and/or noise ordinance violations are not adequately addressed, approvals for outdoor dining areas may be revoked at the discretion of the appropriate review authority. 

  - q. Approval of live entertainment and music (amplified or non-amplified) in outdoor dining areas shall be subject to Table 1347(a). 

  - r. Lighting for outdoor dining areas shall comply with the following:

1. Lighting levels in the outdoor dining area shall be adequate for safety and security purposes, and shall be turned off when outdoor dining areas are not open for use.

     2. Lighting design and layout shall minimize light spill at any adjacent residential property lines and at other lightsensitive uses. Glare shields or other design features may be required to prevent light spill onto residential properties and other light-sensitive uses. 
   

   • s. Walls, planters and other barriers associated with outdoor dining areas shall be designed in a way as to not visually enclose the outdoor dining area. Walls, fences and other barriers shall be a maximum of five feet high from finished grade; the lower three and a half feet of the barrier may be solid, however, the upper one and a half feet of the barrier must be open or transparent, outside of the traffic visibility triangle, or as otherwise permitted by the city's traffic division or the director of economic and development services. Barriers shall not impede traffic visibility from property and public right-ofway.

   • t. Barriers or other improvements installed as part of the outdoor dining area shall be consistent with the aesthetics of the subject property. The materials, design, color and any other feature of the outdoor dining area shall complement the design of the subject food or beverage establishment, and surrounding site development. Temporary materials such as plastics, temporary fencing, non-permanent planter areas and temporary barriers shall not be permitted as part of any barriers or other improvements.

   • u. Landscaping shall be installed around outdoor dining areas to the greatest extent possible. Planter boxes may be used to satisfy this requirement. Landscaping installed as part of an outdoor dining area shall complement existing landscaping onsite and shall comply with the city's landscape standards and all applicable state and federal requirements.

   • v. Outdoor dining shall be permitted in both conforming and nonconforming developments, subject to this article.

   • w. The provision of outdoor dining areas shall not result in any customer parking off site, (including in any adjacent commercial property parking areas, unless off-site parking is approved), with the exception of available public parking. Customer parking shall not park in adjacent residential areas or on residential streets. If parking shortages or other parking-related problems arise, the business operator shall institute appropriate operational measures necessary to minimize or eliminate the problem in a manner deemed appropriate by the director of economic and development services or designee, including, but not limited to, reducing operating hours of the business, reducing interior or exterior seating capacities, hiring an additional employee trained in traffic control to monitor parking lot use and assist with customer parking lot circulation, and/or requiring employees to bike, walk or take public transit.

   • (2) Development standards for outdoor dining areas within existing setback areas:

• a. To the greatest extent possible, outdoor dining areas should maintain a minimum three-foot-wide landscape barrier dimension between the dining area, any pedestrian or vehicular path of travel or neighboring property.

  - b. Outdoor dining areas shall be designed so as to preserve mature trees on site to the greatest extent possible. Any landscaping (including trees) removed as a result of a new proposed outdoor dining area shall be replaced on site (in similar size), unless determined infeasible by the planning division. 
  

  • (3) Development standards for outdoor dining areas within private parking areas:

    • a. Outdoor dining areas within existing private parking areas may occupy parking spaces in compliance with Table 13-47 (b). New development may receive a parking credit of up to five parking spaces, or 25% of required parking spaces, whichever is less, to accommodate an outdoor dining area.

    • b. Outdoor dining areas within private parking areas must comply with all parking lot and circulation standards.

• (b) All establishments shall comply with the applicable standards and review procedures indicated in Table 13-47, as well as with all other development standards of the appropriate zoning district.

• (c) Seasonal events that include live entertainment, dancing, and/or amplified music may be allowed without a conditional use permit or live entertainment permit provided that it complies with the following standards. Each establishment is limited to four nonconsecutive events per calendar year.

  • (1) The event shall not exceed one day in duration;

  • (2) The event shall be conducted entirely indoors; and

(3) The event shall comply with Chapter XIII, Noise Control. (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-5, § 12, 3-2-98; Ord. No. 05-3, § 1e., 2-7-05; Ord. No. 21-20, § 1, 12-7-21; Ord. No. 2024-01, 1/16/2024)

Establishments where food or beverages are served that are within 200 feet of residentially-zoned property shall comply with the following development standards, unless the standards are modified through the issuance of a minor conditional use permit or conditional use permit.

• (a) All exterior lighting shall be shielded and/or directed away from residential areas.

(b) Outdoor public communication systems shall not be audible in adjacent residential areas.

• (c) Trash facilities shall be screened from view and designed and located appropriately to minimize potential noise and odor impacts to adjacent residential areas.

• (d) Outdoor seating areas shall be oriented away or sufficiently buffered from adjacent residential areas.

• (e) For new construction, a landscaped planter area, a minimum of five feet in width, shall be provided as an additional buffer to adjacent residential areas. The planter area shall contain appropriate plant materials to provide an immediate and effective screen. Plant materials shall meet with the approval of the planning division. For remodels, the planning division may also require the construction of a landscaped planter area to buffer adjacent residential areas, if feasible.

• (f) For new construction, all interior property lines abutting residentially-zoned property shall have a minimum six-foot high masonry wall, as measured from the highest grade. An eight-foot high masonry wall may be required, based on the establishment's operational characteristics, in order to provide additional protection to adjacent residential uses. A planning application may be required for walls exceeding six feet in height. For remodels, the planning division may also require the construction of a masonry wall to buffer adjacent residential areas, if feasible.

• (g) Hours of operation for customer service shall not occur any time between 11:00 p.m. and 6:00 a.m.

• (h) Truck deliveries shall not occur anytime between 8:00 p.m. and 7:00 a.m. (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 2024-01, 1/16/2024)

Establishments with drive-through operations shall comply with the following development standards, unless the standards are modified through the issuance of a minor conditional use permit.

• (a) Drive-through lanes shall not obstruct the circulation routes necessary for ingress or egress from the property, parking areas (including back-out of parking spaces), and pedestrian walkways.

• (b) Each drive-through lane shall be striped, marked or otherwise distinctly delineated, and shall be a minimum of 11 feet wide.

• (c) On-site entrances to drive-through lanes shall be set back a minimum of 25 feet from drive approaches from public or private streets or alleys.

• (d) Each drive-through lane shall be a minimum of 160 feet in length, unless modified by the zoning administrator. The length of the drive-through lane shall be measured from its entrance point to the pick-up window.

• (e) Vehicle stacking areas of drive-through lanes shall be a minimum distance of 10 feet from outdoor seating and play areas.

• (f) Application for a minor conditional use permit shall include an operation statement indicating the physical improvements and operational measures proposed to minimize idling vehicle emissions.

• (g) Establishments within 200 feet of residentially-zoned property shall also be subject to the development standards contained in section 13-49 , Development standards for establishments within 200 feet of residentially-zoned property.

• (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 2024-01, 1/16/2024)

• (a) The provisions of this article shall apply to all new establishments where food or beverages are served which are proposed. The provisions of this article shall not apply to existing uses, even when they undergo a change of ownership, unless one or more of the conditions described in subsection (b) are met.

• (b) The provisions of this article shall apply, as appropriate, to any existing use where food or beverages are served under the following circumstances:

  • (1) A change of operational characteristics that includes one or more of the following items:

    • a. An extension of the hours of operation for customer service between 11:00 p.m. and 6:00 a.m., if the establishment is within 200 feet of residentially-zoned property.

    • b. The introduction of the sale of alcoholic beverages for on-site consumption between 11:00 p.m. and 2:00 a.m.

    • c. The introduction of live entertainment or dancing, or the cumulative expansion of 100 square feet or more of the area devoted to dancing during the lifetime of the establishment.

    • d. The introduction of drive-through operations or the expansion of the existing drive-through operations.

    • e. Alterations resulting in a cumulative increase of 100 square feet or more in the floor area devoted to customer service, e.g., food and/or beverage service or entertainment, during the lifetime of the establishment.

    • f. A change from any type of alcoholic beverage control license to any of the following alcoholic beverage control license types: 40 (on-sale beer); 42 (on-sale beer and wine for public premises), 48 (on-sale general for public premises); or 61 (on-sale beer for public premises) provided that the establishment is open for customer service anytime between the hours of 11:00 p.m. and 2:00 a.m.

(2) A cumulative expansion of 100 square feet or more of the gross floor area during the lifetime of the establishment.

• (3) The construction of new, or additional, outdoor dining area(s).

• (4) Discretionary review by the final review authority shall be limited to the change in operational characteristics or the expansion in the area devoted to customer service.

• (Ord. No. 97-11, § 2, 5-5-97; Ord. No. 00-4, § 1, 2-22-00; Ord. No. 2024-01, 1/16/2024)