The URL can be used to link to this page

Home My WebLink About040522-09.1 ADMINISTRATIVE STAFF REPORT 9.1 TO: Mayor and Town Council April 5, 2022 SUBJECT: Discussion regarding the status and future of expanded outdoor restaurant seating BACKGROUND/DISCUSSION To comply with Health Orders related to the COVID-19 pandemic, the Town began issuing Temporary Land Use Permits (TLUPs) in early June 2020. The TLUPs allowed restaurants to create or expand outdoor seating in a manner that would allow them to operate at up to 100 percent of their pre-pandemic occupancies. This included expansion of seating on private property, public sidewalk areas, and on public streets through the creation of parklets. These TLUPs were extended administratively two times. With the re-opening of the economy in June 2021, there was a lesser need for the expanded outdoor seating areas as restaurants were allowed to re-occupy interior seating areas. On July 6, 2021, the Town Council held a public hearing and adopted an urgency ordinance, extending the TLUPs for outdoor restaurant seating until January 3, 2022. The ordinance allowed the continued use of public right-of-ways and suspended any requirement for the payment of off-site parking in-lieu fees for the restaurants that now exceed their pre-pandemic seating and occupancies. On December 21, 2021, the Town Council held a public hearing and again adopted an urgency ordinance extending the TLUPs until June 30, 2022 (Attachment A). At that meeting, the Town Council also requested that the Town schedule this item for further discussion on April 5, 2022. The purpose of this meeting is to discuss the status and to provide direction regarding any additional extensions of time for the TLUPs. PUBLIC CONTACT Posting of the meeting agenda serves as notice to the general public. In addition, notice of the meeting has been provided to businesses that have secured TLUPs. FISCAL IMPACT None. Status Update - TLUPs 2 April 5, 2022 RECOMMENDATION Discuss the status and future of expanded outdoor restaurant seating. Prepared by: David Crompton Chief of Planning Reviewed by: Tai J. Williams Assistant Town Manager Attachment: 12/21/21 Town Council staff report ADMINISTRATIVE STAFF REPORT 8.1 TO: Mayor and Town Council December 21, 2021 SUBJECT: Ordinance No. 2021-05, an urgency ordinance temporarily suspending outdoor seating limitations for restaurant uses within the Town of Danville, authorizing extension of temporary land use permits and extending street closures with a waiver of Danville Ordinance No. 96-10 BACKGROUND In May 2020, the Town began issuing Temporary Land Use Permits (TLUP) to allow existing businesses to expand outdoors in a manner that met social distancing requirements for COVID-19, as determined by the County Health Services, the State, or Center for Disease Control and Prevention. This included use of private or public property for expansion of outdoor restaurant seating, personal services, and fitness studios. These permits were issued administratively and allowed businesses to operate at no more than 100% of their pre-pandemic capacities. All these TLUPs were set to expire on August 1, 2021. During the Town Council meeting of June 15, 2021, the Council discussed the status of the TLUPs, and directed staff to prepare an Urgency Ordinance which would extend the TLUP approvals until January 3, 2022. The primary effect of the Urgency Ordinance would be to allow restaurants to operate above the pre-pandemic capacities without the enforcement of otherwise applicable parking limitations and requirements such as off- site parking in-lieu fees. On July 6, 2021, the Town Council adopted Ordinance No. 2021-02, an urgency ordinance allowing for the continuation of the outdoor restaurant seating previously authorized by the TLUPs issued by the Chief of Planning. The ordinance also continued the approval of the use of public right-of-way for outdoor seating previously approved by the Town Council. The ordinance sunsets on January 3, 2022. EVALUATION Ordinance No. 2021-05 would temporarily suspend Danville Municipal Code Section 32- 45.34.m. (Downtown Business District Ordinance), suspending the requirement to pay the Town’s off-site parking in-lieu fee. Under the current ordinance, any portion of the Temporary Outdoor Seating Ordinance 2021-05 2 December 21, 2021 outdoor seating area which exceeds 25 percent of the gross interior area of a restaurant is subject to the fee. For those restaurants not located in the Downtown Business District, the proposed ordinance would also suspend site specific parking requirements contained within various P-1; Planned Unit Development zoning districts for shopping centers outside of the downtown business district area. Finally, the proposed ordinance would authorize the Town to extend and issue new TLUPs for expanded outdoor seating areas for restaurants in good standing with the Town. The Town Council should determine the length of any extension and include this information as part of Finding 13 of the attached draft ordinance. Normally, the process to adopt an ordinance requires two readings of the ordinance, with the effective date being 30 days after the second reading. However, Government Code Section 36937(b) provides that an ordinance may be adopted with one reading and become effective immediately under the following circumstances: • The ordinance is “for the immediate preservation of the public peace, health or safety, containing a declaration of the facts constituting the urgency…”; and • The ordinance is passed by a 4/5s vote of the Council. The draft ordinance contains detailed findings that explain the need for the ordinance to immediately preserve the public peace, health and safety. Therefore, if the Town Council adopts the proposed ordinance by a 4/5s vote, it will become effective immediately. PUBLIC CONTACT Notice of this hearing was published in a newspaper of general circulation. All TLUP applicants were notified as well as businesses located adjacent to parklets in historic downtown Danville. Posting of the meeting agenda serves as notice to the general public. If adopted, a copy of the ordinance will be published within 15 days. Temporary Outdoor Seating Ordinance 2021-05 3 December 21, 2021 RECOMMENDATION Adopt and read by title only Ordinance No. 2021-05, an urgency ordinance temporarily suspending outdoor seating limitations for restaurant uses within the Town of Danville, authorizing extension of temporary land use permits and extending street closures with a waiver of Danville Ordinance No. 96-10. Prepared by: David Crompton Chief of Planning Reviewed by: Tai J. Williams Assistant Town Manager Attachment: Ordinance No. 2021-05 ORDINANCE NO. 2021-05 AN URGENCY ORDINANCE TEMPORARILY SUSPENDING OUTDOOR SEATING LIMITATIONS FOR RESTAURANT USES WITHIN THE TOWN OF DANVILLE, AUTHORIZING EXTENSION OF TEMPORARY LAND USE PERMITS AND EXTENDING STREET CLOSURES WITH A WAIVER OF DANVILLE ORDINANCE NO. 96-10 The Danville Town Council does ordain as follows: SECTION 1. FINDINGS In enacting this ordinance, the Town Council makes the following findings: 1. With the onset of the COVID-19 pandemic, the State of California declared a state of emergency on March 4, 2020. The Town of Danville declared a local state of emergency on March 17, 2020. Both of those declarations remain in effect. 2. As a means of slowing the spread of the COVID-19 virus and protecting public health, the State of California and Contra Costa County adopted regulations limiting or prohibiting indoor seating and service for restaurants. 3. To protect the public health and assist local restaurants in continuing to operate, the Town began issuing Temporary Land Use Permits (TLUPs) in May 2020, allowing restaurants to create or expand outdoor seating, up to 100% of their overall seating capacity prior to the pandemic. For those properties without the ability to expand their outdoor seating on private property, the Town also authorized the installation of “Parklets” in the public right-of-way. 4. The TLUPs were issued by the Town’s Chief of Planning using existing authority contained in the Town’s zoning ordinance. That authority is limited to allowing seating up to, but not exceeding, pre-pandemic levels. 5. On June 15, 2021, the State lifted all capacity restrictions on indoor seating for restaurants. 6. On July 6, 2021, the Town Council adopted Ordinance No. 2021-02, an urgency ordinance allowing for the continuation of the outdoor restaurant seating previously authorized by the TLUPs issued by the Chief of Planning. The ordinance also continued the approval of the use of public right-of-way for outdoor seating previously approved by the Town Council. The ordinance sunsets on January 3, 2022. 7. As of the date of this Town Council meeting, orders issued by the Contra Costa County Public Health Officer require all individuals entering a restaurant to dine to wear a mask while not eating or drinking and to provide proof of vaccination. Customers dining outside do not need to provide proof of vaccination or wear a mask. These orders are based on findings that the COVID virus is more frequently and easily transmitted in indoor settings. DocuSign Envelope ID: 578399F6-9DD5-4183-801B-C3668FADB097 Temporary Outdoor Seating Ordinance 2021-05 2 December 21, 2021 8. Based upon these same findings regarding the continued risk of indoor transmission, CalOSHA has imposed health measures to protect employees working in indoor spaces. 9. The State of California has warned of a winter surge of COVID due to the continued spread of the delta variant and the fact that cold weather leads to increased indoor gatherings. 10. The discovery of the omicron variant in the Bay Area in early December further adds to the uncertainty about the viability of indoor dining. 11. Restaurant owners in Danville have provided testimony that a large number of customers still prefer outdoor dining due to ongoing health concerns about indoor dining. 12. Government Code Section 36937(b) allows the Town Council to adopt an urgency ordinance, which becomes effective immediately, “for the immediate preservation of the public peace, health or safety…” Such an urgency ordinance must contain a declaration of facts constituting the urgency and must be passed by at least a 4/5s vote of the Town Council. 13. The Danville Town Council finds that the factual recitals listed above are true and accurate and warrant adoption of this ordinance as an urgency item, continuing the temporary suspension of limits on outdoor seating for restaurants through _________, 2022, for the immediate preservation of the public peace, health and safety. Failure to adopt an urgency ordinance would mean that restaurants would be required to shut down outdoor seating, only to subsequently reopen upon the effective date of a non-urgency ordinance. This would lead to job losses, potential failure of existing restaurants as well as increasing the public health risk of having all patrons and employees indoors during the winter months with the introduction of new variants. SECTION 2. TEMPORARY SUSPENSION OF PARKING REQUIREMENTS FOR RESTAURANT OUTDOOR SEATING AND AUTHORIZATION TO ISSUE AND EXTEND TEMPORARY LAND USE PERMITS FOR OUTDOOR SEATING A. Effectively immediately, the following parking requirements for restaurant outdoor seating are suspended for the term of this Ordinance for those restaurants obtaining a temporary land use permit subject to the conditions of approval described in subsection B: 1. Danville Municipal Code Section 32-45.34m for restaurants located in the Downtown Business District; and 2. Site specific parking requirements contained in P-1 zoning districts and incorporated into the Town’s zoning ordinance by Danville Municipal Code Section 32-63.5b. DocuSign Envelope ID: 578399F6-9DD5-4183-801B-C3668FADB097 Temporary Outdoor Seating Ordinance 2021-05 3 December 21, 2021 B. Pursuant to Danville Municipal Code Section 32-45.10, the Chief of Planning may issue temporary land use permits for expanded outdoor seating as authorized by subsection A. above, subject to the following conditions of approval: 1. Outdoor music and entertainment is permitted without amplification. Any proposed outdoor amplified music and entertainment must receive approval from the Chief of Planning. 2. Unless otherwise approved, all garbage bins shall be located within approved garbage enclosures. Garbage bin areas, enclosures, and pick-up areas shall be maintained to allow easy access by the garbage collection provider. No garbage shall be kept in public parking lots or in the public right-of-way or placed in locations that cause impacts to neighboring businesses. 3. The Town shall have the authority to remove or alter parklets, at the business owners expense, as may be needed to maintain public safety. 4. Failure to comply with these conditions of approval may result in the immediate revocation of the temporary Land Use Permit. C. This ordinance shall remain in effect until _________, 2022. No vested rights to outdoor seating beyond that otherwise permitted are created by adoption of this Ordinance. SECTION 3. AUTHORIZING STREET CLOSURES FOR TEMPORARY OUTDOOR RESTAURANT SEATING AND GRANTING AN EXEMPTION FROM DANVILLE ORDINANCE NO. 96-10, ALLOWING FOR CONSUMPTION OF ALCOHOLIC BEVERAGES WITHIN THE PUBLIC RIGHT-OF-WAY A. Pursuant to the authority of California Vehicle Code Section 21101(e) and Danville Municipal Code Section 4-14.2b, the Danville Town Council approves partial street closures for outdoor restaurant seating and grants an exemption to Danville Ordinance No. 96-10 allowing for the consumption of alcoholic beverages within the public right-of-way, subject to the following conditions: 1. The area of any street closure and the right to serve or consume alcoholic beverages shall be limited to that authorized through a Temporary Land Use Permit issued by the Town for outdoor restaurant seating, as provided for in Section 2 of this Ordinance. 2. The term for any street closure and exemption from Ordinance No. 96-10 shall be coterminous with the expiration of this Ordinance. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT The Town Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (“CEQA”) because the temporary suspension of outdoor seating limits for restaurants within the Town, allowing for the continuation of such uses during the ongoing state of emergency, will not result in a direct or reasonably DocuSign Envelope ID: 578399F6-9DD5-4183-801B-C3668FADB097 Temporary Outdoor Seating Ordinance 2021-05 4 December 21, 2021 foreseeable indirect physical change in the environment (CEQA Guidelines Section 15060(c)(2)) and it can be seen with certainty that there is no possibility that the ordinance will have a significant impact on the environment (CEQA Guidelines Section 15061(b)(3)). SECTION 5. SEVERABILITY If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Danville Town Council hereby declares that they would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases was declared invalid. SECTION 6. PUBLICATION AND EFFECTIVE DATE The City Clerk shall have this ordinance published once in a newspaper of general circulation within fifteen (15) days after adoption. DocuSign Envelope ID: 578399F6-9DD5-4183-801B-C3668FADB097 Temporary Outdoor Seating Ordinance 2021-05 5 December 21, 2021 This ordinance is an urgency ordinance adopted pursuant to Government Code Section 36937 and as such, shall become effective immediately if adopted by at least a four-fifths vote of the Town Council. The foregoing Ordinance was adopted by the Danville Town Council at a regular meeting held on December 21, 2021, by the following vote: AYES: NOES: ABSTAINED: ABSENT: MAYOR APPROVED AS TO FORM: ATTEST: CITY ATTORNEY CITY CLERK CLERK'S CERTIFICATE I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 2021-05 of said Town and that said ordinance was published according to law. Dated: __________________________ _________________________________ City Clerk of the Town of Danville DocuSign Envelope ID: 578399F6-9DD5-4183-801B-C3668FADB097