ORDINANCE NO. 24-O-2885
AN ORDINANCE OF THE CITY OF BEVERLY HILLS AMENDING THE BEVERLY HILLS MUNICIPAL CODE REGULATIONS RELATED TO OPEN AIR DINING AND FINDING THE ORDINANCE EXEMPT FROM THE CALIFORNIA QUALITY ACT (CEQA)
THE CITY COUNCIL OF THE CITY OF BEVERLY HILLS DOES ORDAIN AS FOLLOWS:
Section 1.
During the Covid-19 Pandemic, the City established a temporary program to ease open air dining regulations called “OpenBH”, which expired on December 31, 2023. The City Council established two Ad Hoc Subcommittees with the intent to make changes to various processes and requirements related to open air dining. The Code Changes and Fees Subcommittee has held several meetings to discuss proposed changes to development standards for open air dining, which will help facilitate the establishment of open air dining by businesses in the City.
Section 2.
On July 13, 2023, the Planning Commission held a duly noticed public hearing to discuss the proposed changes to open air dining regulations, after which it adopted Resolution No. 2031 recommending that the City Council amend the open air dining regulations, including changes to the development standards for open air dining configurations and the review process for open air dining approvals (collectively, the “Amendments”). On December 11, 2023, the City Council held a duly noticed public hearing, received public testimony, and thereafter introduced this Ordinance.
Section 3.
This Ordinance and the Amendments were assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State
CEQA Guidelines, and the environmental regulations of the City. The City Council finds that adoption of the Amendments is exempt from CEQA pursuant to Section 15305 of Title 14 of the California Code of Regulations because the average slope of the City is less than 20 percent and the Amendments represent a minor alteration in land use limitations, as they are minor changes to existing development standards, and does not result in any changes in land use or density. In addition, the City Council finds that the adoption of the Amendments will not have a significant environmental impact and is exempt from CEQA pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations, which states that CEQA applies only to projects which have the potential for causing a significant effect on the environment. This exemption is applicable because the Amendments do not authorize construction, and only makes minor changes to existing development standards that apply to a fully built-out area of the City (in the commercially zoned areas). Therefore, it can be seen with certainty that the Amendments have no potential to cause a significant effect on the environment.
Section 4.
The Amendments are consistent with the objectives, principles, and standards of the General Plan. General Plan Land Use (LU) Goal 12 – Business Districts Adjoining Residential Neighborhoods calls for land uses that enhance and maintain the long-term durability and stability of the community, as well as preserve the quality of life of residential areas. Similarly, General Plan LU Policy 2.1 – City Places: Neighborhoods, Districts, and Corridors encourages the maintenance of qualities that distinguish the City’s unique residential and business areas, including aesthetics of commercial corridors. General Plan LU Policy 5.5 – Walkable Neighborhoods calls for the maintenance of sidewalks, parkways, and landscaping in the City to promote walking as an activity in the City. General Plan LU Policy 9.1 encourages a mix of uses that support the needs of residents, employees, and visitors. General Plan LU Policy 12.1 requires that commercial uses located near residential neighborhoods are managed to mitigate any potential adverse impacts to residents of the neighborhoods. General Plan LU Policy 15.2 calls for actions that will support key commercial and business industries in the City, including restaurant uses. Amending sections of the Beverly Hills Municipal Code to update the existing open air dining program regulations will help promote and support the health of local restaurant businesses, while also addressing and mitigating potential adverse impacts that could result from open air dining operations. In addition, the Amendments will further enhance the City’s distinctive commercial districts, by encouraging a vibrant pedestrian atmosphere and experience, and will further support community-serving uses. For the foregoing reasons, the public interest, health, safety, morals, peace, comfort, convenience, or general welfare requires the code amendments. Further, the Amendments are consistent with the objectives, principles, and standards of the General Plan as set forth above.
Section 5.
The City Council hereby amends Section 10-3-100 of Article 1 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code by adding the term “Parklet” between the terms “Parking Space” and “Paving” to read as follows, with all other definitions in the section remaining unchanged:
“PARKLET: a structure or installation within which public street parking is converted into an outdoor dining area that serve an adjacent restaurant business. A parklet is typically located directly adjacent to vehicular traffic lanes on one side and the sidewalk or parkway areas on the other side.”
Section 6.
The City Council hereby amends Section 10-3-3501 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
“10-3-3501: OPEN AIR DINING PERMITS:
A. No open air dining use shall be established in the public right of way or on private property unless an open air dining permit is approved pursuant to this article, except that rooftop open air dining uses shall be approved pursuant to section 10-3-3107.5.
B. Parking shall be provided for all open air dining uses pursuant to the provisions of section 10-3-2730 of this chapter, unless otherwise prohibited by law.
C. An application for an open air dining permit shall be filed with the Community Development Department or the Public Works Department in a form prescribed by that department.
D. If approved, an open air dining permit shall be valid for a period of five (5) years and may be renewed for additional five (5) year periods (with no maximum number of renewals) on the same terms and conditions as set forth in the original approval.
E. The city council may establish by resolution fees for the review of such applications.”
Section 7.
The City Council hereby amends Section 10-3-3502 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
1. A minimum distance of not less than a six foot (6') wide pedestrian travel aisle shall be maintained on the public right of way at all times; to assure the required pedestrian travel aisle, all open air dining areas shall be set back a minimum of six feet (6') from the edge of the curb, any parklet located in the public right-of-way, and any fixed sidewalk obstruction including, without limitation, curb lines, tree wells, street trees, parking meters, water hydrants, light poles, utility equipment boxes, newspaper racks and bus benches.
3. If the open air dining is on private property, it must be located within the first 50’ from the front and/or street side property line(s), but shall not preclude the use of interior building courtyards as defined in section 10-4-104 of this chapter for dining, and shall not be located less than 100’ from residentially zoned properties.
4. Umbrellas located in the open air dining area shall provide a minimum seven and one-half foot (7.5') clearance from the ground to the lowest element of the umbrella canopy and shall be integrated into a railing or barrier. If a railing or barrier is not proposed, freestanding umbrellas may be permitted, and if permitted, shall provide an seven and one-half foot (7.5’) clearance from the ground to the lowest element of the umbrella and be integrated into dining furniture. Umbrella canopies may project into the pedestrian path of travel provided a minimum ground clearance of 7.5’ is provided, but no part of the umbrella base or any other part that could cause an obstruction to the pedestrian path of travel shall be allowed to extend beyond the open air dining area’s permitted boundaries, and shall not be permitted to encroach into the pedestrian path of travel if there is a parklet adjacent to the open air dining area.
7. Open air dining areas with more than eight (8) chairs are required to provide a permanent barrier delineating the usable open air dining area from the remaining area of the public right of way. Open air dining areas without a barrier delineating the usable open air dining area may not position chairs so that they are facing the façade of the building.
11. Open air dining is only allowed on public property that is located in the Business Triangle, as defined in section 10-3-2703 of this chapter, or limited to South Beverly Drive, Wilshire Boulevard, Olympic Boulevard, Robertson Boulevard, San Vicente Boulevard, South Santa Monica Boulevard, and La Cienega Boulevard.
12. If the open air dining is located within a commercial-residential transition zone, it may not operate during “extended hours” as defined in 10-3-1951, except as otherwise authorized through the issuance of an Extended Hours Permit pursuant to section 10-3-1958 of this chapter.
13. The open air dining does not interfere with public utilities.
14. Areas used for open air dining in the public right-of-way, the privately owned portions of the Robertson Boulevard sidewalk, and private property shall comply with all applicable provisions of the building code, including, but not limited to, maintaining proper building egress and ingress at all times, observing maximum seating capacities, providing proper circulation, and providing appropriate access to persons with disabilities.
B. An annual rental fee shall be imposed on the use or operation of open air dining areas located in the public right of way. The rental fee schedule shall be set by resolution of the city council. In the event that a permit is suspended pursuant to section 10-3-3509 of this chapter, rental fees shall not be required to be paid during the period of suspension.”
Section 8.
The City Council hereby amends Section 10-3-3505 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
“10-3-3503: MINISTERIAL APPROVAL OF PARKLETS IN THE PUBLIC RIGHT OF WAY:
A. Parklets located in the public right-of-way shall comply with the City’s adopted guidelines for parklets, as maintained by the Department of Public Works.”
Section 9.
The City Council hereby amends Section 10-3-3504 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
“10-3-3504: DISCRETIONARY OPEN AIR DINING PERMIT
A. Notwithstanding subsections A1, A2, A3, A8, and A11 of 10-3-3502, the Director of Community Development may issue a discretionary Open Air Dining Permit to deviate from the required standards, as follows:
1. The Director of Community Development may permit a pedestrian travel aisle of not less than five feet (5’) due to site constraints through issuance of an Open Air Dining Permit, unless the open air dining area is adjacent to a parklet.
2. The Director of Community Development may permit the combination of open air dining on public and private property to exceed 50% of the gross square footage of the restaurant it serves.
3. The Director of Community Development may permit open air dining located on private property to be located more than 50’ from the front and/or street side property lines, or to be located within 100’ of residentially zoned property.
4. The Director of Community Development may permit areas used for outdoor dining to extend beyond the building frontage for the associated restaurant space, provided that the authorization, in a manner satisfactory to the Director, is provided from both the adjacent property owner(s) and the ground floor tenant(s) in front of which the open air dining area is located.
a. Any open air dining area approved pursuant to this subsection shall be removed, at full cost to the restaurant owner, within 60 days from City notification that authorization from adjacent property owner/tenant is rescinded. Property owner/tenant is not required to provide a justification for rescinding their authorization approval. This subsection shall not be interpreted to restrict the ability of the City to require the open air dining area to be removed immediately in case of emergency circumstances upon reasonable notice from the City.
5. The Director of Community Development may permit open air dining on streets where open air dining is not otherwise allowed.
B. Required Findings for Discretionary Open Air Dining Permit. A discretionary open air dining permit shall be reviewed pursuant to the following findings and shall only be approved if all of the findings can be made:
1. The proposed open air dining use is consistent with the general plan and any specific plans adopted for the area.
2. The proposed open air dining use will not adversely affect existing and anticipated development in the vicinity and will promote the harmonious development of the area.
3. The nature, configuration, location, density, and manner of operation of any open air dining use proposed will not significantly and adversely interfere with the use and enjoyment of residential properties in the vicinity of the subject property.
4. The proposed open air dining use will not create any significant traffic impacts, traffic safety hazards, pedestrian- vehicle conflicts, or pedestrian safety hazards and will not impede the safe and orderly flow of pedestrians along the public right of way.
5. The proposed open air dining use will not create any significantly adverse parking impacts as a result of employee or patron parking demands.
6. The proposed open air dining use will not create any significantly adverse impacts on neighboring properties as a result of:
a. The accumulation of garbage, trash or other waste;
b. Noise created by operation of the restaurant or by employees or visitors entering or exiting the restaurant;
c. Light and glare; or
d. Odors and noxious fumes.
7. The proposed open air dining use will not be detrimental to the public health, safety, or general welfare.
C. In approving an open air dining permit, the reviewing authority may impose such conditions as may be reasonably necessary to protect the public health, safety and general welfare, and to ensure that the proposed open air dining use is established and conducted in a manner which is consistent with this article and the development standards for the underlying commercial zone. The conditions imposed by the reviewing authority may include, but shall not be limited to:
1. The appropriate setback for the proposed open air dining use;
2. Pedestrian access and safety;
3. Parking requirements, to the extent allowed under law;
4. Barrier requirements;
5. The time limit on the permit.”
Section 10.
The City Council hereby amends Section 10-3-3505 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
“10-3-3505: REVIEWING AUTHORITY:
A. Ministerial Open Air Dining Approval: Open Air Dining that complies with the standards in section 10-3-3502 of this chapter.
B. Director-Level Reviews/Discretionary Review for Open Air Dining: Open air dining projects that do not meet the standards identified for ministerial review in section 10-3-3502 of this chapter, and requests to deviate from standards as permitted by section 10-3-3504 of this chapter, shall require review by the Director of Community Development. The Director of Public Works shall refer parklets that deviate from the adopted guidelines with regard to building materials and finishes to the Community Development Department for compliance with the architectural review process.
a. If, in the opinion of the director, an application merits review by the Planning Commission, the Director may refer such application to the Planning Commission and the Planning Commission shall serve as the reviewing authority and shall conduct a noticed public hearing regarding the request. A public hearing shall be held by the planning commission on all applications for which it is the reviewing authority and public noticing shall be completed in accordance with article 2.5 of this chapter and the city's public notice guidelines. After issuance of any open air dining permit, the Director of Community Development will be able to review open air dining installations that are found to be problematic or operating in a manner not consistent with approvals.
C. Ministerial Parklet Approval: The Department of Public Works shall have the authority to issue approvals for parklets that comply with the adopted guidelines.
D. Director-Level Review/Discretionary Review for Parklets: Parklets that do not comply with adopted guidelines and propose to deviate from the guidelines shall be subject to approval by the Director of Public Works. If the parklet proposes to deviate from the guidelines with regard to building materials and finishes or aesthetics and signage, the Director of Public Works may refer this review to the Community Development Department for architectural review.
E. Notwithstanding the provisions of this section, if the application for an open air dining permit accompanies an application for any other type of discretionary approval from the planning commission or city council for the same site area, the planning commission or city council, as appropriate, shall be the reviewing authority for the application and shall conduct a noticed public hearing regarding the request. ”
Section 11.
The City Council hereby amends Section 10-3-3506 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
A. The amount and form of the bond shall be designated by the reviewing authority at the time of approval of the open air dining permit, and shall be in an amount which is determined to be sufficient for removal of the open air dining area in the event the permittee fails to comply with the conditions of the permit. The form and content of the bond shall be satisfactory to the city attorney. The bond may be waived where it is determined that the potential for any injury to the city from the existence of the open air dining area is minimal. Any security bond required by this section may be cash, or cash equivalent security approved by the city attorney and the risk manager, or a bond in accordance with title 3, chapter 4 of this code.
B. The amount of insurance shall be designated by the city risk manager at the time of approval of the open air dining permit, and shall be in an amount which is determined to be sufficient to adequately protect the city, persons, and property from injuries or damages which may be caused by the use or operation of the open air dining area authorized by the permit. Insurance which is required under this section shall comply with the provisions of title 3, chapter 4 of this code. ”
Section 12.
The City Council hereby amends Section 10-3-3507 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
Any decision of the director pursuant to this article may be appealed to the planning commission in a manner consistent with the procedures set forth in title 1, chapter 4, article 1 of this code. Any decision of the planning commission regarding an open air dining permit may appeal the decision to the city council in the manner provided by title 1, chapter 4, article 1 of this code.”
Section 13.
The City Council hereby amends Section 10-3-3508 of Article 35 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows:
If the Director of Community Development or Director of Public Works, determines that evidence support grounds for revocation or suspension of an open air dining permit, including a permit for dining in a parklet, and the Director(s) believes that such evidence is adequate to support revocation or suspension, then the Director may initiate a revocation or suspension proceeding.
D. The operation of the open air dining use violates any provision of article 19.5 of this chapter. ”
Section 14.
The City Council hereby amends subsection B of Section 10-3-2730 of Article 27 of Chapter 3 of Title 10 of the Beverly Hills Municipal Code to read as follows, with all other subsections remaining unchanged:
“B. The aggregate amount of required parking space for each type of use shall be not less than the following:
Type Of Use
|
Required Spaces |
1. Hotels
| 1 space per rentable room or unit |
2. Theaters, auditoriums, and public assembly areas with fixed seats, including, but not limited to, churches and schools above the elementary level
| 1 space per 4 seats |
3. Elementary schools and childcare uses other than family daycare homes
| 1 space per classroom |
4. Public assembly areas without fixed seats
| 1 space per 28 square feet of such area |
5. Eating and bar facilities located in the Business Triangle
| 1 space per 350 square feet of floor area |
6. Eating and bar facilities located outside the Business Triangle that are less than 3,000 square feet
| 1 space per 350 square feet of floor area |
7. Open air dining on public property and on privately owned portions of the Robertson Boulevard sidewalk
| No additional parking required |
8. Open air dining on private property
| No additional parking required |
9. Eating and bar facilities not governed by subsections B5 through B7 of this section
| 1 space per 350 square feet of floor area for the first 3,000 square feet of such area and 1 space per 100 square feet of floor area in excess of 3,000 square feet. However, 25 percent of the spaces required to be provided for a building or structure by subsections B1 and B10 of this section may also be applied toward the requirements of this subsection |
10. Commercial uses not otherwise specified in this section
| 1 space per 350 square feet of floor area |
11. Medical offices as defined in section 10-3-100 of this chapter, including all areas devoted to administrative or reception purposes
| 1 space per 350 square feet of floor area; provided buildings constructed before December 6, 1989, that received building permits before December 16, 2005, to restripe parking areas to increase the number of parking spaces and permit additional medical floor area in the building, shall maintain on site free validated valet parking for all medical patrons and maintain posted signage in the parking garage and in or adjacent to all medical offices indicating the availability of free validated valet parking for medical office patrons as required by the zoning code at the time such projects were permitted. Any building area converted to medical use on or after December 16, 2005, which relies on a valid restripe permit shall also comply with the above requirements. |
12. Manufacturing uses
| 1 space per 500 square feet of floor area |
13. Warehouse uses
| 1 space per 1,500 square feet of floor area |
14. Exercise club
| 1 space per 100 square feet of floor area |
15. Private training centers
| For private training centers located in the Business Triangle: 1 space per 350 square feet of floor area for private training centers with up to 3,000 square feet of floor area. 1 space per 200 square feet of floor area beyond 3,000 square feet. |
For private training centers located outside the Business Triangle: 1 space per 200 square feet of floor area. | |
For all private training centers: Provided, however, that if a private training center of more than 3,000 square feet of floor area is located in a building which has at least 1 parking space per 350 square feet of floor area, then the planning commission, as part of the issuance of a conditional use permit, may reduce the amount of required parking for a private training center to an amount no less than 1 parking space per 350 square feet of floor area. The planning commission shall not, however, approve any reduction in the required parking unless the planning commission determines that such reduction will not unreasonably burden the parking supply of the building. | |
16. Medical laboratories as defined under section 10-3-100 of this chapter
| 1 space per 350 square feet of floor area. Buildings constructed on or after July 1, 1999, may provide parking for medical laboratory uses at a ratio that is less than 1 space per 200 square feet of floor area upon the granting of a minor accommodation pursuant to the minor accommodation requirements set forth in this subsection and provided the parking ratio for the building is at least 1 space per 350 square feet of floor area. Buildings constructed before July 1, 1999, which have an existing parking ratio that satisfies the city's parking requirements in effect on February 21, 1961, may satisfy the 1 space per 200 square feet of floor area requirement for any new medical laboratory use by any combination of tandem and compact spaces and restriping provided an on-site parking attendant is present at all times during which access to the site is permitted. Any building constructed before July 1, 1999, which has an existing parking ratio that satisfies the city's parking requirements in effect on February 21, 1961, but cannot satisfy the 1 space per 200 square feet of floor area requirement as provided by this subsection may convert commercial space to medical laboratory space upon the granting of a minor accommodation pursuant to the minor accommodation requirements set forth in this subsection. |
a. Minor Accommodation: | Where specified reduced parking for medical laboratory uses may be authorized under this subsection through the granting of a minor accommodation, the director of planning and community development may, pursuant to the provisions of article 36 of this chapter, permit such reduced parking provided the director of planning and community development finds that the number of parking spaces in the building has been maximized to the extent feasible and that the proposed reduction in parking will not have a significant adverse effect on traffic and parking in the area due to any of the following: (1) The size or configuration of the building or portion thereof housing the proposed medical laboratory; (2) The number and size of the loading areas on the site; |
(3) The nature and number of deliveries for the proposed medical laboratory; (4) The proximity of the proposed medical laboratory to schools and parks; (5) The proximity of the proposed medical laboratory to neighboring residential areas; (6) The existing concentration of other commercial operations in the vicinity of the proposed medical laboratory; (7) The hours of the operation for the proposed medical laboratory. | |
b. General Prohibition: | Notwithstanding any of the provisions of this subsection B16, under no circumstances shall a building located within 100 feet of a public school or active park be permitted to provide parking at a ratio of less than 1 regular stall size space per 200 square feet of floor area. The Business Triangle area is defined for purposes of this code section as: the area bounded by the centerline of Santa Monica Boulevard North Roadway, the centerline of Crescent Drive, the centerline of Wilshire Boulevard west of Beverly Drive, and the first lot line north of Wilshire Boulevard for that area east of Beverly Drive. |
“
Section 15.
Legal Nonconformity and Compliance Deadline. A restaurant with an existing open air dining permit and agreement approved by the City prior to the adoption of this ordinance and which was not approved under the temporary OpenBH program, shall be considered legal nonconforming should the approved configuration conflict with any requirement in this ordinance. Such restaurants shall be permitted to retain their legal nonconforming configurations until such time that they terminate their tenancy at the location, but shall be required to comply with all agreement renewal requirements and conditions of approval and shall be subject to the updated open air dining lease fees.
Section 16.
In order to avoid prosecution for noncompliance with this Ordinance, a restaurant with an existing OpenBH permit approved by the City prior to the adoption of this Ordinance shall file an application for an open air dining permit with the City on a form approved by the City no later than March 1, 2024. All applicable open air dining requirements must be satisfied by October 1, 2024.
Section 17.
Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction, the remainder of this Ordinance shall be and remain in full force and effect.
Section 18.
Publication. The City Clerk shall cause this Ordinance to be published at least once in a newspaper of general circulation published and circulated in the City within fifteen (15) days after its passage in accordance with Section 36933 of the Government Code, shall certify to the adoption of this Ordinance, and shall cause this Ordinance and her certification, together with proof of publication, to be entered in the Book of Ordinances of the Council of this City.
Section 19.
Effective Date. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage.
Adopted: January 11, 2024
Effective: February 11, 2024
JULIAN A. GOLD, M.D.
Mayor of the City of Beverly Hills, California
ATTEST:
_________________________(SEAL)
HUMA AHMED
City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
___________________________ _____________________________
LAURENCE S. WIENER NANCY HUNT-COFFEY
City Attorney City Manager