Nevada City Municipal Code Ch. 12.05 Outdoor Dining Within Public Rights-of-Way

It is the intent of this chapter to provide regulations for use by established indoor restaurant, winery, and/or bar businesses to operate an outdoor operation component within a portion of a City sidewalk (Sidewalk Dining Encroachment Permit) or within a public parking space (Parklet Dining Encroachment Permit). Outdoor dining operations shall be done in conjunction with an indoor dining or drinking operation pursuant to the standards of operation outlined in this chapter.

(Ord. No. 2022-10, § 2, 9-28-2022)

For purposes of this Chapter, the following words or phrases shall have the following meanings:

A. "Qualifying Business" means any restaurant, food establishment, or bar or winery serving food and/or drink, which will operate both indoors and outdoors, and in compliance with local and State regulations.

B. "Sidewalk Dining Encroachment Permit" means a permit issued to a Qualifying Business by the City Engineer for serving food and/or drink by a restaurant, or winery, or bar business operating in an adjacent building with service occurring on a portion of a City sidewalk.

C. "Parklet Dining Encroachment Permit" means a permit issued to a Qualifying Business by the City Engineer for serving food and/or drink by a restaurant, or winery, or bar business operating in an adjacent building, with service occurring within a curbside parking space or spaces.

D. "Parklet" is a fixed encroachment placed in the curbside parking space that is used principally for commercial activity by a Permittee operating a restaurant, or winery, or bar business within an adjacent building during specified business hours.

E. "Portable" shall mean that furnishings and amenities meet the following criteria: 1) capable of being removed with 24 hours' notice; 2) can be removed without mechanized equipment; and 3) can be temporarily anchored for safety and security.

(Ord. No. 2022-10, § 2, 9-28-2022)

A. Adjacency to Storefront—Dining Encroachment Permits may only be issued to Permittees along the frontage of the storefront that is applying for the encroachment. Encroachments are not allowed to use the frontage of adjacent storefronts to expand their territory. Encroachments shared with adjacent businesses may be filed through a joint application and will be considered on a case-by-case basis. The shared encroachment area cannot exceed the frontage for the combined businesses.

B. Smoking of any kind is prohibited on any Sidewalk and/or Parklet space operating under a Dining Encroachment Permit.

C. Proper and adequate storage and disposal of debris and garbage shall be the responsibility of the business and secured after the business is closed.

D. The Permittee or its employees or volunteers shall walk a 25-foot radius from the Outdoor Dining Encroachment Permit area within 30 minutes after close of business and shall pick up and dispose of any discarded trash within the radius.

E. Any approved use of a Dining Encroachment Permit is limited to the normal hours of the Permittee's business operation within the adjacent building.

F. The license fee amounts for Dining Encroachment Permits shall be set forth in a Resolution adopted by the City Council.

G. The Dining Encroachment Permit application and renewal fees shall be set forth in a Resolution adopted by the City Council.

H. A Dining Encroachment Permit is not transferrable. Any new business must reapply for a Dining Encroachment Permit and demonstrate compliance with all applicable provisions of this chapter and with the prior Permit, if applicable.

I. All portable furnishings and fixtures shall comply with the following standards:

1. Material shall be natural wood, manufactured stone, or wrought iron, or wrought iron in appearance (see outdoor furniture design guidelines).

2. The furniture shall be traditional in style and consistent with outdoor dining furniture guide, as may be amended by the City Planner

3. The seat of the chair shall not exceed 24" in height and the overall dimension of the chair shall not exceed 24" wide x 24" deep x 42" tall.

4. Furniture shall be rated to meet standards of the California Fire Code.

J. Outdoor dining is not permitted where, in the opinion of the City Engineer, the speed, volume or nearness of vehicular traffic is not compatible with outdoor dining. All outdoor dining areas must be adjacent to and incidental to the operation of a food, wine, or alcohol service establishment providing on-premises customer seating properly licensed for such service pursuant to state and county environmental health regulations.

K. The issuance of a Dining Encroachment Permit shall be at the discretion of the City Engineer and shall not be an obligation of the City. At any time, the City may revoke or limit the terms of the permit in order to address public safety concerns, facilitate adequate traffic flow, address parking needs and ADA access, or other needs of the City.

L. The service of alcoholic beverages shall be restricted solely to on-premises consumption by customers within the outdoor dining area. Each of the following standards apply to outdoor dining areas which provide alcoholic beverage service:

1. The outdoor dining area must be immediately adjacent to and abutting an indoor restaurant which provides food and/or beverage service;

2. The outdoor dining area must be clearly and physically separated from pedestrian traffic;

3. The operator shall post a written notice to customers that the drinking or carrying of an open container of alcohol is prohibited outside the outdoor dining area;

4. The outdoor dining operations must be duly licensed by the state Department of Alcoholic Beverage Control.

M. All heating implements shall meet regulations of the California Fire Code and shall comply with the following:

1. The use of temporary space covers of any type is prohibited.

2. The use of heating devices shall be approved with the following requirements:

i. Heating devices shall have a minimum thirty-six (36) inch clearance between the heat source and any flammable/combustible material(s), such as any umbrella canvas, any foliage, or any other flammable object or material. Heaters are not allowed under umbrellas but can be placed near them if clearances are maintained. Clearance shall always be maintained.

ii. A minimum of one (1) fire extinguisher with a minimum size and rating of five (5) lb., 2-A:10-B:C shall be provided. All fire extinguishers shall be serviced annually and have a current service tag issued by a licensed fire extinguisher company within the past one-year period.

iii. Heating devices shall be arranged to eliminate burn and/or tripping hazard to the public and/or workers.

3. Portable LPG tanks used for heating devices:

i. Shall be secured in an upright position and in an approved manner (safety valves located on top)

ii. Shall be located so as not to be a tripping hazard for the public and/or workers.

iii. Shall have a maximum allowable size of twenty (20) pound/five (5) gallon capacity.

4. The use of fuel fired heating and/or flame producing devices is prohibited. This does not limit use of UL listed devices that operate consistent with the Fire Code.

N. All furnishings and fixtures must be designed to be weighted down for wind protection.

O. The maximum term of a dining encroachment permit is one year; thereafter, the City Engineer may renew the license for additional periods, not to exceed one year each, following review and approval of the operation. If the City Engineer considers additional or revised conditions desirable, such new conditions may be imposed upon the extension, including the imposition of a license renewal fee.

P. Limitations on City's Liability. To the fullest extent permitted by law, the City of Nevada City shall not assume any liability whatsoever with respect to having issued a dining encroachment permit pursuant to this Chapter. As a condition to the approval of any dining encroachment permit, the applicant shall be required to meet all of the following conditions:

1. They must execute an agreement, in a form approved by the city attorney, agreeing to indemnify, defend (at applicant's sole cost and expense), and hold the City of Nevada City, and its officers, officials, employees, representatives, and agents, harmless, from any and all claims, losses, damages, injuries, liabilities or losses which arise out of, or which are in any way related to, the City's issuance of the dining encroachment permit, the City's decision to approve the operation of outdoor dining within the right-of-way or activity, to process used by the City in making its decision, or the alleged violation of any federal, state or local laws by the outdoor dining business or any of its officers, employees or agents.

2. Maintain insurance at coverage limits, and with conditions thereon determined necessary and appropriate from time to time by the city attorney.

3. Reimburse the City of Nevada City for all costs and expenses, including but not limited to attorney fees and costs and court costs, which the City of Nevada City may be required to pay as a result of any legal challenge related to the City's approval of the applicant's dining encroachment permit, or related to the City's approval of outdoor dining activity. The City of Nevada City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve any of the obligations imposed hereunder.

Q. An application for Outdoor Sidewalk and/or Parklet Dining shall include the following minimum requirements:

1. A list of and frequency schedule for routine maintenance tasks, including pressure washing dining area

2. Material specs and brochures for all material and furniture improvements. Material specs and brochures for heating implements shall also be provided if use is to be year-round.

3. Photographs of existing conditions on the site, including pictures of the building that hosts the primary business.

4. A conceptual site plan depicting how the space will be configured, including the introduction and placement of any temporary physical elements, dimensions of fixed and portable furniture, dimensions of the space, any existing fixed obstacles and four and one-half feet (54 inches) of unimpeded sidewalk width that is compliant with ADA standards, applicable to Sidewalk outdoor dining. If operation is to occur year-round, applicant must provide a cold-weather conceptual site plan, showing all furniture including location and material specs of heating implements if they are to be used.

5. Permittee's liability and indemnification Agreement at limits as specified by the City Attorney.

(Ord. No. 2022-10, § 2, 9-28-2022)

A. The City Engineer or his designee shall be responsible for issuance of a Sidewalk Dining Encroachment Permit, provided it complies with the requirements of this chapter.

B. All sidewalk service shall occur in a manner that maintains a path of unimpeded access at least four and one-half feet (54 inches) wide that is compliant with ADA standards across the sidewalk fronting their sidewalk dining space, including any existing fixed obstacles and proposed improvements, as measured to the back of the curb return.

C. All tables, chairs, and fixtures shall be portable and completely removed from the sidewalk during times when the business of the Permittee is not operating.

D. Umbrellas. Umbrellas shall be pressure-treated or manufactured of fire-resistant material. No portion of an umbrella shall be less than 96 inches above the sidewalk, not including the umbrella support post.

E. A Permittee's right to occupy the sidewalk shall be conditioned upon the obligation to remove or modify their sidewalk dining amenities at any time, as necessary for any City project or maintenance work.

F. All proposed lighting shall be hardwired to the building's electrical supply and compliant with Section 17.80.215 of the City Municipal Code, with specific light fixtures to be certified as "Dark Sky Approved" by the International Dark Sky Association and approved under an Architectural Review permit. Existing, permitted lighting may be used to illuminate the dining space.

(Ord. No. 2022-10, § 2, 9-28-2022)

A. The City Engineer or his designee shall be responsible for reviewing a Parklet Dining Encroachment Permit. Prior to the issuance of a Parklet Dining Encroachment Permit by the City Engineer or designee, the Architectural Review Committee shall review the design of the proposed Parklet and make recommendations to approve, approve with conditions, or deny the design of the Parklet and the compatibility of the Parklet with adjacent buildings. Architectural Review Committee review shall not be required for renewal permits or new permitting of existing parklets that have no design changes.

B. Parklets may only be constructed on streets with speed limits of 25 mph or lower.

C. Portable seating, tables and amenities shall be removed from the Parklet space at such times when the Parklet is not being activated for commercial use by the Permittee during business hours unless the Permittee has provided for one of the following in their approved application:

1. The portable furniture is in place for use by the public as desired by the Permittee, and as indicated in the permit.

2. The portable furniture is secured in a method as approved by the City Engineer to be safe, and aesthetically pleasing, (no tarps or jumbled pile)

D. A Permittee's right to occupy the Parklet Space shall be conditioned upon the obligation to remove or modify the Parklet at any time, as necessary for any City project or maintenance work.

E. Parklet plans shall be designed by a design professional, such as an engineer or an architect and shall be constructed in accordance with an issued building permit consistent with California Building Code and designed pursuant to the following minimum requirements:

1. A parklet shall be located in parallel parking space(s) at a length of one or two parallel parking spaces. A minimum of 48 feet or three parallel parking space buffers, whichever is greater, is required from the nearest parklet.

2. A minimum of 16 feet or one parallel parking space buffer, whichever is greater, is required when adjacent to a driveway or crosswalk.

3. A parklet shall not block sight distance of motorists at intersections. Accordingly, a parklet may not be located less than 25 feet from a roadway intersection. The final distance required may vary based on the surrounding roadway conditions, and shall be subject to the approval of the City Engineer

4. A parklet shall not be permitted directly across the street from another parklet.

5. A parklet shall not be permitted within a green temporary zone, yellow loading zone, blue accessible parking zone, or red no parking zone.

6. A parklet shall not be constructed over or obstruct utility access panels, manhole covers, storm drains, and must maintain a minimum distance of four feet from a fire hydrant. A minimum clearance of 8 feet from storm drains and manhole covers will be required to allow for maintenance access, though the City Engineer may grant an exception to this clearance based on an exceptional design that accommodates access upon immediate notice. Parklets proposed under overhead utility lines will be required to meet the minimum distance requirements as established by the CPUC. Parklets that block the outlet of a sidewalk underdrain will be required to ensure the outlet is functional and flowing.

7. The outer perimeter of a parklet adjacent to the street and parking shall have a reflective element and protective barrier such as bollards or solid planter.

8. Shall be designed as an elevated platform that allows the parklet to serve as an extension of the sidewalks and made fully accessible.

9. Shall incorporate railings to demarcate the exterior of the parklet from the street and surrounding parking spaces. Planters may be interspersed if desired.

10. Parklet seating areas must comply with all requirements of the Americans with Disabilities Act (ADA) and provide sufficient clearance and walkway space to allow safe access and egress.

F. Electrical connections. Overhead and on-the-ground extension cords shall not be permitted. Lighting may be solar or battery-operated lighting or may be hardwired using the existing business electrical service and placed in a conduit that runs underground to the parklet platform. All wiring and electrical cords must be exterior rated, GFCI protected, and UL listed. Businesses are not allowed to connect into existing City electrical connections. Generators are not allowed in association with Outdoor dining encroachment permits, except for use during emergency power outage.

1. Lighting shall be consistent with Section 17.80.215 of the City Municipal Code, with specific light fixtures to be certified by the International Dark Sky Association.

G. Trellises and shade structures are not allowed within the Historic District. Trellises and shade structures may be permitted outside the Historic District and must be constructed in accordance with an issued building permit. Tents of any kind are not permitted.

H. The City shall have the right to construct a public Parklet irrespective of the above standards.

I. Platform Design Criteria:

1. Materials. Platforms must be constructed from durable materials that can withstand wear and tear of elements. Pouring concrete for parklet platforms is not allowed. You may use concrete pavers on a platform structure instead. Surface materials must be textured or treated with a non-skid coating to ensure a safe walking surface. Loose particles, such as sand or loose stone, are not permitted.

2. Maintenance access. Parklets must be designed to provide access under the platform to allow for maintenance (e.g. repairs or clearing debris). If the platform base is not a solid mass, access can be provided through access panels, removable pavers, or other means.

3. Platform Threshold. The platform threshold must be flush and even with sidewalk and ADA compliant with a horizontal gap no greater than ½-inch, and a change in level of no greater than ½-inch. Changes in surface level ¼-inch through ½-inch vertically must be beveled.

4. Drainage. Platforms should allow for curbside drainage flow. A 3-inch height by 12-inch width minimum clear gutter space must be provided along the entire length of the proposed platform. Openings at either end of the parklet may be covered with screens to prevent debris buildup beneath the platform and in the gutter. It is the responsibility of the parklet permittee to clean the cover or screen to prevent any backup of storm water. All parklets must provide access through the parklet platform or threshold to the gutter adjacent to the curb.

5. Bolting Not Allowed. At no time may structures be bolted or affixed in any way to the roadway, a structure, or public fixture (including but not limited to: buildings, fire hydrants, street trees, streetlight, parking meters, or traffic poles, etc.) An exception to this is that bollards or other barriers for traffic protection may be approved by the City Engineer.

6. ADA Accessibility. All accessibility elements of the proposed platform shall be designed, constructed and/or conform to the applicable provisions, rules, regulations and guidelines of the California Building Code and Americans with Disabilities Act.

7. Railing design shall be consistent with the City's sidewalk rail design that emulates the design of the historic Pine Street Bridge as provided in the detail below, or another design as may be recommended by the architectural review committee and approved by the City Engineer.

[Figure]

(Ord. No. 2022-10, § 2, 9-28-2022)

A. If a permit to place the structure or furniture has been rescinded or expired, before any such structure or furniture is seized, the Permittee shall be notified and given 10 business days to remove the structure or furniture. If the Permittee does not remedy the underlying violation leading to the rescission of the permit and/or apply for a Dining Encroachment Permit within the time prescribed, the City may seize, remove, or demolish the structure or furniture.

B. Seized furniture shall be retained by the City and may be recovered by the responsible party for a period of at least 30 business days following seizure. As a condition of recovering any furniture seized pursuant to this Section or receiving a subsequent Outdoor Dining Permit, the Permittee shall pay an impound fee covering the actual cost to the City of transporting and storing such furniture.

C. Public Works may demolish any unpermitted structure placed in the right-of-way. Where a Permittee is responsible for an unpermitted structure that requires demolition, the Permittee shall not be eligible for a subsequent Dining Encroachment Permit until the Permittee has paid the fee covering the actual costs to the City of demolishing and disposing of the structure(s). Such recoverable costs may include those incurred by Public Works and any other City department, including the City Attorney's Office, for time and materials spent enforcing the requirements of the permit.

D. If a Permittee does not pay the permit fee within 30 days after it becomes due and payable, the City shall add 10% to the amount of the permit fee as a penalty for nonpayment. If the permittee does not pay the fee within 45 days after it becomes due and payable, the City shall issue notice of overdue payment and may revoke the permit if payment is not made within 60 days after the permit fee is due and payable.

E. Upon revocation or expiration of an outdoor dining permit by the City or withdrawal by the permittee, all improvements shall be removed, and the site returned to its original state to the satisfaction of the City Engineer.

F. Cost Recovery for Removal: As a condition of parklet permit issuance, the parklet permittee shall agree to remove the parklet completely upon revocation by the City or termination by the permittee. If the parklet permittee abandons the parklet prior to the end of the parklet permit term or refuses to remove the parklet upon request or termination of the parklet permit, the City will bill the permittee in an amount the City determines is necessary to pay for the cost to remove the parklet and restore the right-of-way.

G. Protest of Non-issuance: Dining Encroachment Permits shall be issued at the discretion of the City Engineer. Protest of non-issuance may be made to the City Manager who may overturn the decision of City Engineer.

(Ord. No. 2022-10, § 2, 9-28-2022)