Chapter 12.36
OUTDOOR DINING AND OUTDOOR RETAIL SALES ON CITY PROPERTY AND IN THE PUBLIC RIGHT-OF-WAY

Sections:

12.36.010    Purpose.

12.36.020    Definitions.

12.36.030    Permit and fees required.

12.36.040    Findings.

12.36.050    Conditions.

12.36.010 Purpose.

The purpose of these regulations is to acknowledge and achieve the following:

A.    To promote social and economic interactions, intensify pedestrian activity and preserve and enhance the character of commercial districts.

B.    To promote the public health, safety, welfare and convenience by ensuring that persons may reasonably use the public streets, sidewalks, rights-of-way, and other public property without interference with such use.

C.    To permit the commercial use of streets, sidewalks and public rights-of-way for retail sales except where such use unreasonably interferes with the use of these areas by pedestrians or traffic, or where such use presents a hazard to persons or property. (Ord. 1439 § 4 (Exh. C (part)), 2011)

12.36.020 Definitions.

As used in this chapter:

A.    “City property” means real property over which the City: (1) holds an interest, including, without limitation, fee title ownership, easement, leasehold, and public street right-of-way; and (2) has the present right of possession and control.

B.    “Director” means the Director of Public Works of the City or his/her designee.

C.    “Encroachment” means any furniture, rack, display, table, chair, umbrella, awning or other appurtenance associated with outdoor dining and/or outdoor sales which is placed in or over any portion of the public right-of-way.

D.    “Park facility” means as defined in Chapter 12.12, Regulation of Park Facilities.

E.    “Open space park facility” means as defined in Chapter 12.12, Regulation of Park Facilities.

F.    “Permittee” means the person to whom an outdoor dining or outdoor retail sales encroachment permit has been issued.

G.    “Public right-of-way” means any public highway, street, alley, sidewalk, pathway, parkway, parking area and all extensions or additions thereto which is either owned, operated, or controlled by the City, or is subject to an easement or dedication to the City, or is privately owned area within the City’s jurisdiction which is not yet but is designated as a proposed public right-of-way on a tentative subdivision map approved by the City.

H.    “Roadway” means that portion of a public right-of-way improved, designed and ordinarily used for vehicular traffic, including drainage gutters and curbs a minimum of six inches in horizontal width.

I.    “Sidewalk” means that portion of a public right-of-way provided for the exclusive use of pedestrians, including planting areas or park strips, between the public roadway and adjacent property lines. (Ord. 1439 § 4 (Exh. C (part)), 2011)

12.36.030 Permit and fees required.

A.    Encroachment Permit Required. An encroachment permit is required for any outdoor dining area or outdoor retail sales area located in the public right-of-way. An encroachment permit may be obtained by filing a written application on a form supplied through the Department of Public Works. The requirements for these permits as enumerated in this chapter are in addition to any other applicable local, State or Federal laws, rules and regulations and shall require annual power cleaning of the public right-of-way area for which the encroachment permit was issued at the responsibility and expense of the applicant. The application shall state the name and address of the owner of the adjacent real property and the business benefited by the encroachment and other information regarding the request as required by Sections 18.23.140 and 18.23.150.

B.     Fees. The applicant shall be charged an annual fee for use of the public right-of-way area for any outdoor dining area or outdoor retail sales area, as set by the City Council in the uniform fee schedule. (Ord. 1439 § 4 (Exh. C (part)), 2011)

12.36.040 Findings.

The Director may grant an encroachment permit for any outdoor dining area or outdoor retail sales area located in the public right-of-way based upon the following findings:

A.    The applicant is the owner or occupant of the adjacent property and operates a retail business, cafe or restaurant thereon;

B.    The encroachment would not unduly and unreasonably impair passage to and from by the public on the sidewalk for which the permit is sought;

C.    A six-foot handicapped access would be maintained around the outdoor dining area or outdoor retail sales area at all times;

D.    In the case of an outdoor dining area, the proposed area is included with a food-service establishment permit issued by the San Mateo County Department of Health;

E.    Any portion of an outdoor dining area or outdoor retail sales located on public right-of-way shall be exempt from additional parking requirements, as specified in Section 18.20.040. (Ord. 1439 § 4 (Exh. C (part)), 2011)

12.36.050 Conditions.

A.    Zoning Ordinance Conditions. Outdoor dining areas and outdoor retail sales areas permitted under this chapter shall be located, developed and operated in compliance with the standards provided in Sections 18.23.140 and 18.23.150.

B.    Insurance. An applicant for a permit for use of the public right-of-way for outdoor dining area or outdoor retail sales area shall, prior to issuance of such a permit, provide and maintain in full force and effect while the permit is in effect, public liability insurance in an amount specified by the Risk Manager sufficient to cover potential claims for bodily injury, death, or disability and for property damage which may arise from or be related to the use of the public right-of-way for outdoor dining area or outdoor retail sales area, naming the City of San Carlos as an additional insured.

C.    Indemnity. The applicant for use of the public right-of-way for outdoor dining area or outdoor retail sales area shall execute and deliver to the City Engineer an agreement in writing and acknowledged by the applicant, forever to hold and save the City free and harmless from any and all claims, actions or damages of every kind and description which may accrue to, or be suffered by, any persons by reason of or related to the operation of such outdoor dining area or outdoor retail sales area use.

D.    Compliance—Sidewalk Conditions. The applicant shall comply with the terms and conditions of the encroachment permit issued, and shall maintain the sidewalk in a clean and safe condition for pedestrian travel, and shall immediately clear the sidewalk area when ordered to do so by the City Engineer or other appropriate city officer such as the Chief of Police or Fire Chief or their authorized representatives.

E.    Use of Property/Public Right-of-Way. In addition, the applicant shall enter into an agreement with the City of San Carlos which shall contain a provision that the permit is wholly of a temporary nature, that it vests no permanent right whatsoever, that upon thirty days’ notice, posted on the premises, or by publication in the official newspaper of the City of San Carlos, or without such notice, in case the permitted use shall become dangerous or unsafe, or shall not be operated in accordance with the provisions of this title, the same may be revoked and the furniture and appurtenances ordered removed. Every such agreement, after it has been received in his office and numbered, and after the same has been recorded, shall be retained by the Director of Finance and City Clerk in the files and records of their offices.

F.    Temporary Suspension of Permit. The City shall have the right to suspend or prohibit the operation of an outdoor dining area or outdoor retail sales area at any time because of anticipated or actual problems or conflicts in the use of the public right-of-way. Such problems or conflicts may arise from, but are not limited to, scheduled festivals, parades, marches and similar special events; repairs to the street, sidewalk or other public facility; or from demonstrations or emergencies occurring in the area. To the extent possible, the City will give prior written notice of any time period during which the operation of the outdoor dining area must be suspended. (Ord. 1439 § 4 (Exh. C (part)), 2011)