A. Permit Required:
1. A person or group of persons may be granted the privilege of encroaching upon any public highway, street, sidewalk, alley, or publicly owned common area (hereinafter referred to as public right of way) of the city by the issuance of an encroachment permit. There shall be four (4) types of encroachment permits:
a. Continuous Encroachment Permit: That issued for encroachments which, by their nature, are not readily movable and which reflect an intent by the holder of the permit of a permanent or quasi- permanent status.
b. Temporary Encroachment Permit: That issued for encroachments which may be readily moved and which are intended by the holder of the permit to be of a duration of less than one year.
c. Sidewalk Restaurant Encroachment Permit: That issued for sidewalk restaurant encroachments which are intended by the holder of the permit for a duration of one year.
d. Residential Block Party Permit: That issued for encroachments which are social events held within a residential block zoned R1 in which at least fifty percent (50%) of the property is zoned residential and is held for a period less than twenty four (24) hours.
2. An encroachment permit, either continuous or temporary, shall only be issued for the purpose of public convenience or public necessity. The issuance of the encroachment permit shall grant the person the privilege of using the right of way for the purposes set forth in said permit, subject to the terms and conditions set forth in the permit and this section. This permission to encroach upon public right of way granted by the city is only a license to use the property in question; it is neither an easement nor a conveyance of real property; it may be revoked by the city at any time for any reason without compensation to the permit holder. After notice of the revocation, the permit holder shall immediately remove said encroachment from the city right of way. Prior to being granted an encroachment permit, a person shall make an application on a form provided by the city. The applicant must comply with the requirements of subsection B of this section, unless such compliance is waived by the city council. No continuous encroachment permit shall be issued unless first approved by a majority of the city council members then holding office. No temporary encroachment or sidewalk restaurant encroachment permits shall be issued unless first approved by the city manager.
B. Application For Permit; Fee Required: Any person or group seeking the privilege of encroaching upon any public right of way in the city shall file an application for an encroachment permit, specifying whether the permit sought is continuous or temporary, with the city manager or his designee. The application shall include the following:
1. A detailed map of the proposed location.
2. A description of the proposed encroachment including nature of construction, material to be used, the exact dimensions, a drawing of the encroachment, an explanation of any utility requirements and location of such utilities.
3. The name and address of the person or group that will be responsible for the operation and/or maintenance of the encroachment; if the person or group is a corporation, the applicant shall list the names and addresses of all officers and the registered agent of the corporation.
4. A certificate of insurance indicating the applicant has purchased and maintains public liability and property damage insurance in an amount acceptable to the city to secure payment for any loss or damage caused by the encroachment. The certificate of insurance shall name the city as an additional insured.
5. A statement providing that in consideration of receiving the encroachment permit, the applicant will pay any and all expenses, including compensation for damages, caused by the encroachment and that the applicant will indemnify and hold harmless the city from any action, proceeding or claim of liability asserted against the city resulting from the encroachment or from the issuance of the encroachment permit.
6. The period of time for which the encroachment permit is sought.
7. If the application is for the continuous encroachment permit, a fee of one hundred dollars ($100.00), except that businesses within the downtown entertainment district as defined by title 2 of this code, such fee shall be waived.
8. If the application is for the sidewalk restaurant encroachment permit, a fee of one hundred dollars ($100.00) per year shall be paid, except that businesses within the downtown entertainment district such fee shall be waived.
C. Recommendation By City Manager: Upon submission of a complete application and the payment of the fee, the city manager or his designee shall examine the application and investigate the proposed encroachment to determine whether the proposed encroachment is consistent with this code and all other applicable law. With respect to an application for a continuous encroachment permit, the city manager shall make a recommendation to the city council as to whether the permit should be issued or denied.
D. Conditions For Approval: Upon receiving the recommendation of the city manager, the city council may grant a continuous encroachment permit subject to any conditions or terms it deems appropriate to protect the public health, safety, or welfare including, but not limited to, the following:
1. The encroachment shall be constructed, operated, and maintained in a clean, safe, and sanitary manner, and kept free from trash, weeds or other debris.
2. The encroachment shall be designed, constructed, and maintained without the presence of any overhead wiring; any and all wiring required or utilities, including electric and telephone wiring, shall be placed underground insofar as it is reasonably possible.
3. The specific time at which the encroachment permit will expire.
4. The prohibition of any relocation or design modification of the encroachment without prior approval of the city.
Any continuous encroachment permit may be amended or revoked by the city council following receipt of a recommendation from the city manager.
E. Temporary Encroachment Permit: The city manager is authorized to issue a temporary encroachment permit for the following events or activities:
1. Banners/Decorations: The city manager may issue a temporary encroachment permit to a person, group or organization for the purpose of displaying banners or other decorations, upon receipt of an application and a nonrefundable application fee in the amount of ten dollars ($10.00).
a. The application shall include the following information:
(1) The applicant shall be a unit of state or local government or a not for profit organization whose primary or secondary purpose is the promotion of the arts, cultural activities or tourism. The design and/or content of the banners or decorations shall be limited to that which promotes the arts or a significant cultural or tourism related activity.
(2) The duration of time which the encroachment shall be in effect, the placement and/or location of the banner or other decoration, and the manner in which the encroachment will promote the arts, cultural activities or tourism.
(3) In addition to the above information, the application shall include all information required under subsections B1 through B6 of this section.
Upon submission of a complete and accurate application, and payment of the application fee, the city manager, or his designee, shall examine the application and investigate the proposed encroachment to determine whether the proposed encroachment is consistent with this code and all other applicable laws. The city manager may grant a temporary encroachment permit subject to any conditions or terms he deems appropriate to protect the public health, safety or welfare.
b. The authorized encroachment of a banner or other decoration shall comply with the following conditions, or be subject to immediate revocation by the city manager:
(1) The applicant shall pay a fee to the city for the installment and removal of banners. This service fee shall be on a per pole or banner/decoration basis and shall be adjusted from time to time to cover the city's cost to perform the service.
(2) The size, design, location and duration of the banners/decorations shall be subject to the approval of the city manager, who shall deny a permit for any banner or decoration that is not in the best interest of the city of Carbondale.
(3) The banners and/or decorations shall meet the following standards at all times during the authorized encroachment:
(A) The banners/decorations shall be designed/constructed to be installed on utility poles or other locations approved by the city and that there shall be no more than two (2) banners/decorations per pole/location;
(B) The surface area of any banner or decoration not to exceed twenty five (25) square feet per banner or decoration;
(C) There shall be a minimum of sixteen feet (16') of clearance between the banner or decoration and the public right of way;
(D) The location of the proposed encroachment shall be within or bounded on at least one side by one of the following zoning districts: SB secondary business; BPL planned business; BWA wholesale and automotive; BPR primary business; LI light industrial; GI general industrial;
(E) The size, design and method of construction, of any banner or decoration shall be approved by the city manager and shall be in accordance with any and all city, state and federal laws and regulations. The banners or decorations shall be picked up by the applicant after removal by the city. The city is not responsible for damages to the banner/decoration and if a banner/decoration requires maintenance or repair, the applicant will be responsible for making the repair. All removal and reinstallation shall be done by the city for which the applicant will be charged a service fee;
(F) Should the city revoke the encroachment permit, the applicant will remove the banner or decoration within three (3) working days or else the city shall remove the banner/decoration at the applicant's expense;
(G) The method of construction, maintenance and replacement of any banner or decoration shall be approved by the city and shall be in accordance with any and all city, state and federal safety laws and regulations.
c. The police chief, fire chief, and development services director shall make or cause to be made sufficient inspections to ensure the permit holder complies with this section and all other provisions of this code.
d. The city manager may deny, amend or revoke a temporary encroachment permit for banners or other decorations if the permit would be inconsistent with the standards set forth herein, or is determined not to be in the best interests of the citizens of Carbondale.
2. Sidewalk Sales: The city manager may issue a temporary encroachment permit for a sidewalk sale to a person, group or organization who desires to sell, offer to sell, or display its goods and merchandise upon the public right of way immediately adjacent to its current operated retail business that is located in one of the zoning districts set forth herein. The application shall be made in writing to the city manager at least fourteen (14) days prior to the proposed date(s) of the sidewalk sale. A nonrefundable application fee in the amount of ten dollars ($10.00) shall be submitted along with the application to the city manager.
a. The application shall include the following information and meet the following requirements:
(1) The applicant's name, address, organization and principal officers, in addition to the manager of the retail business who shall act as the contact person in regard to the application.
(2) The applicant shall be a person or entity that desires to sell, offer to sell, or display its goods and merchandise upon the public right of way immediately adjacent to its current operated retail business that is located in one of the following zoning districts:
SB | - | Secondary business |
BPL | - | Planned business |
BPR | - | Primary business |
BWA | - | Wholesale and automotive |
(3) In addition to the above information, the application shall include all information required under subsections B1 through B6 of this section.
Upon submission of a complete and accurate application, and payment of the application fee, the city manager, or his designee, shall examine the application and investigate the proposed encroachment to determine whether the proposed encroachment is consistent with this code and all other applicable laws. The city manager may grant a temporary encroachment permit subject to any conditions or terms he deems appropriate to protect the public health, safety or welfare.
b. The authorized encroachment permit for a sidewalk sale shall comply with the following conditions, or be subject to immediate revocation by the city manager:
(1) Adequate space must be available on private property in front of the business premises in order to conduct a sidewalk sale. A minimum three foot (3') wide passageway shall be left accessible for pedestrians. No merchandise shall be displayed within six feet (6') of the curb line of the street.
(2) The sidewalk sale shall be conducted in such a manner as not to create a nuisance or fire hazard.
(3) All merchandise displayed or offered for sale shall be displayed in a secure manner so as not to threaten the safety of any pedestrians.
c. The police chief, fire chief, and development services director shall make or cause to be made sufficient inspections to ensure the holder of the temporary encroachment permit complies with this section and all other provisions of this code.
d. The permit shall be effective from the date indicated on the permit, and shall expire on December 31 of that same year, unless sooner revoked by the city.
e. The city manager may deny, amend or revoke a temporary encroachment permit for a sidewalk sale if the permit would be inconsistent with the standards set forth herein, or is determined not to be in the best interests of the citizens of Carbondale.
3. Nonresidential Business Temporary Encroachments: The city manager may issue a temporary encroachment permit to other businesses located in zoning districts which are not residential in nature. The application shall be made in writing to the city manager. A nonrefundable application fee in the amount of fifty dollars ($50.00) shall be submitted along with the application to the city manager.
a. The application shall include the following information and meet the following requirements:
(1) The applicant's name, address, organization and principal officers, if applicable.
(2) In addition to the above information, the application shall include all information required under subsections B1 through B6 of this section.
Upon submission of a complete and accurate application, and payment of the application fee, the city manager, or his designee, shall examine the application and investigate the proposed encroachment to determine whether the proposed encroachment is consistent with this code and all other applicable laws. The city manager may grant a temporary encroachment permit subject to any conditions or terms he deems appropriate to protect the public health, safety or welfare.
b. The authorized encroachment permit for an encroachment as described in this subsection E3 shall comply with the following conditions, or be subject to immediate revocation by the city manager:
(1) The permit holder shall maintain the encroachment in such a manner as not to create a nuisance or fire hazard.
(2) The city manager shall enumerate such other terms and conditions for the encroachment as is reasonably necessary to protect the health, safety and welfare of other persons using the right of way.
c. The police chief, fire chief, and development services director shall make or cause to be made sufficient inspections to ensure the permit holder complies with this section and all other provisions of this code.
d. The permit shall be effective from the date indicated on the permit, and shall expire on December 31 of that same year, unless sooner revoked by the city.
e. The city manager may deny, amend or revoke a temporary encroachment permit described in this subsection E3 if the permit would be inconsistent with the standards set forth herein, or is determined not to be in the best interests of the citizens of Carbondale.
F. Sidewalk Restaurant Permit: The city manager is authorized to issue a sidewalk restaurant encroachment permit as set out below:
1. Definitions: The following words and phrases shall have the meanings respectively ascribed to them when used in this section:
FOOD SERVICE ESTABLISHMENT: Any public place which is kept, used, maintained, advertised, and held out to the public as a place where meals are sold and served and where meals are actually and regularly served to the public. A food service establishment shall have seating available for patrons as well as adequate and sanitary kitchen and dining room equipment. A food service establishment must have employed therein a sufficient number and kinds of employees to prepare, cook, and serve full meals for its guests. Food service establishments must keep a record of all food items sold such that a determination that the restaurant is serving meals regularly can be made. Food service establishments serving alcohol shall also meet requirements of title 2 of this code applicable to such licensee.
OUTDOOR RESTAURANT: Use of a public sidewalk or plaza area by a food service establishment, for the serving of food and beverages to seated customers.
PERMIT AREA: The sidewalk area designated on the permit specifying the area of operation of the outdoor restaurant.
PERMITTEE: The person or entity operating a food service establishment who has received a permit allowing for the operation of an outdoor restaurant.
2. Permits Required:
a. It shall be unlawful for any person to operate an outdoor restaurant on a public sidewalk without a sidewalk restaurant encroachment permit.
b. The sidewalk restaurant encroachment permit shall allow a food service establishment located in the primary business district (BPR) of the city to operate an outdoor restaurant subject to the requirements of this section.
c. Any permit issued pursuant to this section may contain such written conditions as the city manager, or his designee, deems warranted to protect the use of adjacent right of way for its intended purpose or to prevent congestion of vehicular or pedestrian traffic flow and to otherwise carry out the purpose and intent of this section and this code.
d. The permit holder shall, as part of the right granted pursuant to the permit, be entitled to remove or exclude persons from the permit area during hours of business operation. Such permittee is authorized to give notice to any such person to prevent such entry.
e. The sidewalk restaurant encroachment permit shall expire annually on December 31 of each year. There is an annual permit filing fee of one hundred dollars ($100.00).
f. Any sidewalk restaurant encroachment permit shall be subject to suspension or revocation as hereafter provided.
3. Application: Application for a sidewalk restaurant encroachment permit shall be made on forms supplied by the city, and submitted to the city manager or his designee, together with the annual fee and shall at minimum include the following:
a. The name, address, and telephone number of the owner of the property and the food service establishment related to the permit.
b. A copy of a valid license issued by the Jackson County health department.
c. A scaled drawing or sketch depicting the dimensions of the proposed permit area and which shows the location and type of tables, chairs, trash receptacles and other equipment proposed to be used, location of ingress and egress, the city owned equipment facilities in or adjacent to the area proposed which are visible to the eye, including, but not limited to, parking meters, trees, manhole covers and utility poles or openings.
d. An operations plan specifying the proposed dates, days and hours of operation of the outdoor restaurant, the hours of operation of the adjacent restaurant, scheduled maintenance of the permit area, maximum seating capacity, and method of providing security and maintenance.
e. An executed waiver of liability in a form approved by the city attorney.
f. Any other information related to the requirements of this chapter that the city manager may require.
g. All persons, prior to receiving a permit, shall procure and maintain for the duration of the permit, public liability and property damage insurance pertaining to the permit area in a minimum amount of one million dollars ($1,000,000.00) per person and one million dollars ($1,000,000.00) in the aggregate per occurrence and property damage in a minimum amount of one million dollars ($1,000,000.00), naming the city, its officers and employees as additional insured, and the same shall provide that policy shall not terminate or be canceled prior to the expiration date without thirty (30) days' advance written notice to the city. Proof of such insurance issued by an insurance company licensed to do business in the state of Illinois in the form of a certificate of insurance shall be attached to the application.
4. Application Review:
a. No permit shall be granted, pursuant to this section, unless the finance director or his designee shall certify that there are no outstanding fines, fees, taxes, or other charges due and owed to the city by the owners of the real property on which the restaurant is located or the applicant.
b. All applications for sidewalk restaurant encroachment permits shall be reviewed by the city to determine compliance with each of the requirements of this section.
c. No permit shall be issued unless the applicant supplies all information required on or by the application form and is in compliance with the regulations contained in this section.
d. The applicant shall be notified of the status of the application and its approval or the reason for its denial within ten (10) business days of filing the application.
5. Regulations:
a. An outdoor restaurant is permitted only on sidewalks or approved plaza areas. The permit area shall be immediately adjacent to the food service establishment requesting the permit, or a sidewalk contiguous to the sidewalk adjacent to the food service establishment.
b. No permit will be granted if seats or equipment in the outdoor restaurant result in the need for additional restrooms unless such additional restrooms are provided.
c. The hours when service is permitted at the outdoor restaurant shall be between six o'clock (6:00) A.M. and eleven fifty nine o'clock (11:59) P.M.
d. Any person making use of an outdoor restaurant shall do so in a reasonable manner with due regard for the health and safety of persons and property. No permittee shall make any physical alteration to public property. A permittee shall owe a duty to the city of Carbondale and third persons to maintain the permit area in a clean, safe and sanitary condition.
e. The permittee shall keep the permit area free of litter, cans, bottles, and spills at all times. The permittee shall promptly collect and dispose of all litter, trash and other waste materials associated with the outdoor restaurant, including materials in the adjacent public right of way or property originating from the outdoor restaurant. The permittee shall dispose of any such waste in their own trash receptacles only. The permittee shall not dispose of any such waste in public trash receptacles.
f. Upon the expiration or other termination of an outdoor restaurant use permit, the permittee shall immediately remove all tables, chairs, furnishings, equipment and other items of personal property from the permit areas. Any such items remaining upon the public right of way after a reasonable opportunity to remove the same may be removed and disposed of by the city of Carbondale at the sole cost and expense of the permittee.
g. A sidewalk restaurant encroachment permit allows for the temporary placement of tables, chairs, furnishings, equipment, and other items of personal property related to the restaurant. Except for plaza areas, all tables and chairs must be "portable", meaning that no such furniture shall be chained together or bolted together as a unit or affixed to the outdoor wall or ground surface.
h. Umbrellas shall have a maximum diameter of eight feet (8') and a minimum clearance of seven feet (7') above the ground, a weighted base, and be fabric covered. All umbrellas must be made of cloth fabric; vinyl umbrellas are prohibited. Umbrella materials may not have a shiny, synthetic appearance. Signage on umbrellas is prohibited. No lettering, advertising, graphics, and/or logos are allowed on the umbrella face.
i. No signs, banners or other like advertising shall be located in the permit area, unless in accordance with section 15.6.5 of this code, and the restaurant may post a menu detailing food, beverages, or special items.
j. Tables, chairs and umbrellas shall be located so that there remains open, at all times, a longitudinal walking space, the location of which shall be determined by the city, of a minimum of four feet (4') in width, with slopes not to exceed Americans with disabilities act (ADA) requirements.
k. The city manager or his designee may promulgate administrative rules, substantially related to the requirements contained in this section. Such rules shall be attached to the permit and be followed by the permittee.
6. Suspension Or Revocation: The use of a public sidewalk as a sidewalk restaurant shall be subject to temporary suspension or termination at any time by the city in the interest of the public health, safety, welfare and for community events. To the extent that a permit area is needed by the city for the purposes for which it was dedicated, or any other public purpose, the city may immediately suspend or terminate the sidewalk restaurant permit by sending written notice to the permittee and assume full possession and control of the permit area. The permittee shall remove all furniture from the right of way within the time specified by the notice. If the furniture is not removed by the permittee, the city shall be authorized to remove all furniture and other objects of the permittee from the permit area. If such furniture is not reclaimed by the permittee within seven (7) days after removal by the city, the property shall be presumed abandoned and subject to disposal according to law.
7. Public Property: The provisions of this section shall apply only to the locating of outdoor restaurants on public property or public right of way and shall not apply to any private property.
8. Indemnification; Payments For Cleaning Or Damages:
a. As an express condition of the issuance of the permit, each permittee shall agree in writing to indemnify and hold harmless the city against all claims of liability, loss, injury, death, or damage whatsoever in connection with or arising out of the use of the outdoor restaurant by anyone.
b. As an express condition of the issuance of the permit, the permittee shall agree to, within ten (10) days after the billing date, pay to the city all costs associated with damage to the pavement or other city owned facilities located in or adjacent to the permit area caused by operation of the food service establishment, or costs to clean or remove trash from the permit area or adjacent premises occasioned by the failure of the permittee to clean or remove such trash.
G. Residential Block Party Permits: The city manager shall establish policies and procedures for the issuance of residential block party permits, and shall set forth the requirements, fees, limitations, and enforcement of the terms of the permit.
H. Enforcement:
1. The city may inspect the permit area at any time. The city shall mail or deliver the result of the inspections to the permittee.
2. Any violation of the provisions of this section shall be remedied within the time given in the notice or, if not stated in the notice, within ten (10) calendar days from the date of delivery or postmark on the notice.
3. Any permittee violating or failing to comply with the terms or requirements of this section shall be subject to the penalty provisions and procedures set forth in this chapter. (Ord. 2017-05; Ord. 2021-19)