San Marino Municipal Code Art. 07 Sidewalk Encroachment Permits

This section applies to applications and procedures for encroachments into the public right of way for the purpose of creating sidewalk dining areas. (Ord. 098-1123, 7-8-1998)

The primary purpose of public walkways is the free and unobstructed right of travel. However, the city recognizes that the use of public walkways for limited sidewalk dining areas can improve the business environment and enhance the quality of life for San Marino residents so long as such use is consistent with the underlying dedication for public right of way, does not impede vehicular or pedestrian travel and does not interfere with adjoining businesses or property owners. Therefore, the city may permit such uses on a temporary or nonpermanent basis and as a special privilege, not as a matter of right. (Ord. 098-1123, 7-8-1998)

ABUTTING PROPERTY: The property directly abutting the portions of the sidewalk in which the sidewalk dining area is to be placed.

ADJOINING PROPERTY: A property which both adjoins the abutting property and fronts on the same sidewalk.

CITY: The city of San Marino.

DIRECTOR: The director of planning and building or the person designated in writing by the director.

OBSTRUCTION: Any object which completely or partially blocks a path of travel on a sidewalk and includes all temporary structures, appurtenances, furnishings and furniture attendant to a sidewalk dining permit.

PERMIT: A sidewalk dining permit issued pursuant to this article.

PERSON: Any individual, firm, company, partnership, corporation, joint venture, or any other entity.

PLANNING DEPARTMENT: The planning and building department.

SIDEWALK: All or any portion of a city right of way set apart and designated for the use of the public primarily for pedestrian travel.

SIDEWALK DINING AREA: An area within the sidewalk used for dining adjacent to a building and including both any obstruction and any activity related to dining, including, but without limitation, waiting for tables, waiting on tables, and bussing tables. (Ord. 098-1123, 7-8-1998)

No person shall establish or maintain any sidewalk dining area except pursuant to a written permit issued by the director as provided in this article. This article shall not be applicable to any activity in the sidewalk pursuant to and permitted by other specific provisions of this code or to other obstructions prohibited in the sidewalk by other specific provisions of this code. It shall be unlawful for any person to whom a permit is issued to violate any condition of the permit. (Ord. 098-1123, 7-8-1998)

A person desiring a permit shall file an application with the planning department and shall pay the application fee specified by resolution of the city council. The director shall establish a permit application form and designate any application materials deemed necessary to enable complete review of the application. The application shall include a declaration under penalty of perjury that all submitted information is true and correct and shall contain, at a minimum, the following information:

A. The name and business address of the applicant if a natural person. If the applicant is an entity, the name and address thereof and the name and address of the individual authorized to bind the entity in contract.

B. If the applicant is not the owner of the abutting property, then the application shall be signed by the owner of the abutting property, or by the duly authorized agent of the owner. Any person signing the approval as an agent shall furnish a written authorization from the owner.

C. Plans satisfactory to the director describing the use and showing in detail the layout and dimensions of the proposed outdoor eating area, including, without limitation, the number and location of seats and tables, utility connections and all other proposed obstructions and a schedule of the hours of operation of the outdoor dining area.

D. Sufficient evidence to establish to the satisfaction of the director that the proposed use is consistent with the underlying dedication for public right of way and is consistent with the city's title or estate in the underlying sidewalk.

E. Evidence showing that the adjacent property and business are in compliance with all zoning regulations, including off-street parking requirements. (Ord. 098-1123, 7-8-1998)

The application shall be subject to the review and approval of the director. The director shall not issue a permit unless he or she makes all of the following findings:

A. The proposed sidewalk dining area meets the standards of this article;

B. The proposed sidewalk dining area does not unduly interfere with the use of the public right of way by adjoining property owners and tenants;

C. The proposed sidewalk dining area does not impede travel on the sidewalk or create a hazard to the safety or health of passersby;

D. The proposed sidewalk dining area does not unreasonably alter the use of the abutting property;

E. The abutting property and business will be operated complies with all applicable statutes, laws, ordinances and regulations, including, without limitation, the San Marino zoning ordinance.

F. The applicant is to the owner of the business on the abutting property in conjunction with which the sidewalk dining area will be operated.

G. The sidewalk on which the sidewalk dining area is proposed to be conducted is at least ten feet (10') wide, the unobstructed width of the sidewalk that will not be used for the sidewalk dining area will be five feet (5'), and the area of the sidewalk on which the sidewalk dining area will be located will have a minimum vertical clearance of eight feet (8'), unless the director finds that these standards are not necessary to protect the public health and safety due to circumstances concerning the particular location for the proposed sidewalk dining area.

H. The sidewalk dining area will not interfere with visibility, vehicular or pedestrian mobility or access to city or public utility facilities.

I. The proposed design, materials and colors used for chairs, tables, umbrellas and awnings are consistent both with the architectural style and colors used on the building facade.

J. The proposed sidewalk dining area does not extend beyond the projected side boundaries of the abutting business.

K. The proposed sidewalk dining areas will not be located in the arc area of the curb at any corner lot nor within ten feet (10') of any driveway or alley. (Ord. 098-1123, 7-8-1998)

All sidewalk dining areas shall be operated in conformity with all of the following requirements:

A. The permit may not be transferred to any entity or person without the written approval of the director.

B. All items placed on the public right of way shall be maintained in good repair and no item shall be hazardous to pedestrians or vehicular traffic, or interfere with safe line-of- sight distances as determined by the city engineer.

C. The sidewalk dining area shall be made available at all times for routine and emergency work by the city and utility companies and their agents.

D. The sidewalk dining area shall be continuously supervised by management or employees of the business to which it is associated.

E. The sidewalk dining area shall be kept in a good state of repair and maintained in a clean, safe and sanitary condition.

F. The sidewalk dining area shall be cleared of all tables, chairs and other obstacles at the end of each business day.

G. The sidewalk dining area shall be operated in compliance with ADA and title 24 handicap accessibility requirements.

H. All entrances and emergency exits for all buildings on the abutting property shall be kept clear.

I. No items may be placed on planted areas.

J. No storage will be allowed on the sidewalk, whether within or outside the sidewalk dining area.

K. The sidewalk dining area shall be clearly delineated by either plants or planters, or other partitioning material. The height of any partitions shall not exceed forty two inches (42") above grade.

L. No signage is permitted in the sidewalk dining area. Umbrellas may not display signage or advertising and must not obstruct the view of pedestrians or the motoring public. Umbrellas must have a minimum vertical clearance to the lowest support arm of six feet six inches (6'6").

M. Table lamps or candles are encouraged. Lighting on the building shall be placed in a manner so as not to be a nuisance to pedestrians on the sidewalk or to create a safety hazard to those driving vehicles on nearby streets.

N. No table, chair, umbrella, awning, planter or other item shall extend or project out from the designated sidewalk dining area.

O. The sidewalk dining area shall be kept clear of litter and food scraps at all times. At the end of the business day, the area in and around the sidewalk dining area shall be swept and mopped.

P. Placement of food and beverage service stations in the sidewalk dining area is prohibited.

Q. All fixtures must be self-supporting and not secured to the building and sidewalk.

R. Modification of the texture or the surface of the sidewalk is prohibited and no tree wells/grates shall be installed in the sidewalk dining area.

S. Sidewalk dining areas shall only provide service to sit-down food and beverage dining customers. Stand-up services are prohibited.

T. The hours of operation of sidewalk dining areas shall be limited to those associated with the indoor dining hours and cannot extend later than ten o'clock (10:00) P.M., unless authorized by issuance of a conditional use permit pursuant to section 23.07.02 of this code.

U. No live entertainment or live music shall be permitted in any sidewalk dining area, unless authorized by issuance of a conditional use permit.

V. No heat lamps are permitted within sidewalk dining areas.

W. Maximum table size in any sidewalk dining area is thirty inches by thirty inches (30" x 30") for two (2) customers and thirty inches by forty eight inches (30" x 48") for three (3) or four (4) customers.

X. The sidewalk dining areas shall be operated in compliance with all applicable requirements of the San Marino health code, as well as all other applicable statutes, laws ordinances and regulations.

Y. The director may impose such other conditions the director deems necessary to make the findings required in section 16.07.06 of this article. (Ord. 098-1123, 7-8-1998)

The city council shall establish an annual permit fee by resolution. The fee shall be paid at the time of filing an application for a new or renewal permit. The fee shall be returned if the permit is denied. A prorated portion of the fee shall also be returned if the permit is revoked. (Ord. 098-1123, 7-8-1998)

Sidewalk dining permits shall expire on June 30 of each year. An application to renew a sidewalk dining permit shall be submitted with the annual license fee for the subsequent year no later than May 30 of each year. The director shall renew the permit if the permittee has complied with all permit conditions and the director finds that none of the reasons for revoking the permit exist. (Ord. 098-1123, 7-8-1998)

The director may revoke a permit if he or she determines that the permittee has failed to comply with any of the conditions of the permit or determines that any of the required findings for issuance of a permit in section 16.07.06 of this article can no longer be made. Before revoking the permit the director shall notify the permittee of his or her intention to revoke the permit, the grounds therefor and the date that the director intends to revoke the permit. The notice shall inform the applicant of the opportunity to meet with the director to discuss the revocation prior to the proposed date of revocation. The director may immediately suspend a permit prior to revocation if he or she finds that the sidewalk dining area constitutes an immediate threat to the public safety or health or if the permittee fails to maintain the insurance required in section 16.07.14 of this article. In such case, the notice of suspension shall notify the permittee of the opportunity to meet with the director to discuss the suspension and revocation prior to the proposed date of revocation provided in the notice. A permittee shall immediately cease operating a sidewalk dining area and remove all sidewalk dining area items if the director suspends or revokes a permit. If the permittee fails to stop using the sidewalk dining area, the director may cause the sidewalk dining items to be removed and stored at the cost of the permittee. (Ord. 098-1123, 7-8-1998)

The director may add new conditions or modify existing conditions of a sidewalk dining permit if the director finds that such modifications are necessary to make the findings provided in section 16.07.06 of this article. (Ord. 098-1123, 7-8-1998)

Any interested person may appeal any decision made by the director pursuant to this article to the city council within ten (10) calendar days of the date notice of the decision addressed to the applicant or permittee is deposited in the mail. The director's decision shall be effective during the pendency of the appeal. (Ord. 098-1123, 7-8-1998)

The permittee will be required to defend, indemnify and hold harmless city and members of its city council, boards and commissions, officers, agents, and employees (hereinafter, collectively "City parties") from and against all loss, damage, cost, expense, liability, claims, demands, suits, attorney fees and judgments arising from or in any manner connected to permittee's possession, occupancy or use of the sidewalk dining area or arising from or in any manner connected to the condition of the sidewalk or the permittee's business, activities, operations, services or work conducted in, on or about the sidewalk dining area.

Without limiting the generality of the foregoing, permittee agrees that no city party shall be liable for any injury to permittee's business or any loss of income therefrom, or for damage to the goods, wares, merchandise, improvements or other property of permittee, permittee's officers, agents, employees, contractors, invitees, or customers, or any other person in, on or about the sidewalk dining area, or personal injury or death of the permittee, its officers, agents, employees, contractors, invitees, and customers.

The permittee shall further indemnify and hold harmless city from and against any and all claims arising: a) from any breach or default in the performance of any obligations on the part of permittee to be performed under the terms of permit; or b) from any negligence or other wrongful conduct of permittee, or c) from the issuance of the permit.

In the event any action or proceeding is brought against city by reason of such claim, permittee, upon notice from city, shall defend such action or proceeding at permittee's expense, by legal counsel satisfactory to city. (Ord. 098-1123, 7-8-1998)

The permittee shall be required to provide and maintain insurance in such amounts and form as shall be established by resolution of the city council. (Ord. 098-1123, 7-8-1998)

Any person violating any provision of this article or failing to comply with any condition of a sidewalk dining permit or who knowingly submits false information for the purposes of obtaining a permit shall be prosecuted as set forth in chapter I, article 06 of this code. (Ord. 098-1123, 7-8-1998)