(a) Purpose.
(1) The City of Oberlin recognizes and supports the vitality and activity that is created by outdoor dining establishments within the "downtown business district". The operation of such dining facilities within the public street rights-of-way, however, requires careful consideration and review to ensure that such uses function in a manner as to create the aforementioned benefits without any negative effects.
(2) The purpose of establishing these guidelines is to create a pleasant downtown environment for visitors and residents, to prevent obstructions on public sidewalks in areas characterized by high volumes of pedestrian traffic and the congregation of pedestrians on sidewalks associated with sidewalk cafes, and to ensure that adequate efforts are made to protect the health, safety and welfare of the public by requiring certain minimum levels of sanitation and cleanliness.
(b) Definitions. The following definitions are provided to assist with the interpretation of these guidelines:
(1) Right-of-way. The public right-of-way is defined as an area of land over which a government has possession of rights for public passage or use, such area being occupied or intended to be occupied by a street, road, highway, alley, sidewalk, crosswalk, or for the installation of public or private utilities within the corporate limits of the City. Such right-of-way may be under the jurisdiction of the City, County, State or Federal governments. For the purpose of these guidelines, the components of the right-of-way that are of concern include, but are not limited to, the sidewalk area of the street as well as overhead and underground utilities whether owned by the City or others.
(2) Central Business District. The central business district for the purposes of these regulations is considered to be that area of the City identified as the Downtown District in the Downtown Revitalization and Development Plan, 2010 Update.
(3) Restaurant. A commercial establishment, the principal purpose of which is the sale and serving of food and beverages for consumption within the establishment or in an area contiguous thereto.
(4) Outdoor dining. An outdoor dining facility or café for the purpose of these guidelines means an area within the public right-of-way, and adjacent to a restaurant. The size and location of such an outdoor dining facility or café may be limited in order to ensure that the public right-of-way is not obstructed by the operation of same.
(5) Sidewalk fence. Means a temporary, non-permanent fence which is located on the public sidewalk. The height of such fence shall not be less than 36 inches nor exceed 42 inches from grade to the highest point.
(6) Litter. Litter for the purpose of these guidelines is defined as meaning any substance found within the right-of-way that is related to the food, beverages or other goods associated with the food service at the outdoor dining facility or café and the primary restaurant facility. Such items include, but are not limited to, discarded food, beverages, plates, wrappers, containers, bottles, cups, paper, cigars or cigarettes and butts.
(7) Permit. A permit is defined as being written authorization by the City Manager to conduct the operation of an outdoor dining facility or café within the public right-of-way. A permit is only valid between April 1st and November 1st.
(8) Business. A business is considered to be any operation of an outdoor dining facility or café by a person, firm, partnership or corporation.
(c) Procedures. The following procedures shall apply to requests for permission to operate an outdoor dining facility or café within the public right-of-way in the central business district:
(1) Approval. No business shall operate an outdoor dining facility or café without having first obtained a permit from the office of the City Manager.
(2) Permit requirement. A valid permit is required to operate an outdoor dining facility or café within the public right-of-way located within the central business district of the City. A permit is only valid for the calendar year in which it is issued. The fee charged for such an annual permit shall be fifty dollars ($50.00).
(3) Permit application. An application must be filed on an annual basis for a permit to operate an outdoor dining facility or café within the central business district. Such applications are to be completed on the form prescribed by the City and are to be filed with the office of the City Manager. The City Manager shall either approve or deny the application within thirty (30) days of receipt of a complete application. Each application shall be accompanied by a completed Application Form, a sketch which accurately displays all applicable dimensions, shows the size and location of the restaurant, the size and location of all doors or other openings in relation to the building and adjacent sidewalks, curbs and gutters, the width of all adjacent sidewalks, the location of such features as sidewalk pavers, fire hydrants, light poles, trash receptacles, benches, flower planters, trees, bus stops, newspaper boxes, curb-cuts, driveways, or any other existing feature that might impact the ability of the café area to comply with these guidelines, as well as such other information reasonably deemed necessary by the City Manager to issue a permit. The applicant shall also furnish details related to all proposed temporary fences or barriers. Such fences or barriers shall not be less than thirty-six (36) inches nor exceed forty-two (42) inches from grade to the highest point. Fences shall not create any sight-line problems. They shall comply with the design details set forth in subsection (d) hereof.
(4) Permit issuance.
A. No outdoor dining facility or café shall operate unless adjacent to a property with an existing restaurant being operated in accordance with the City's Zoning, Building and Fire Codes. Any outdoor dining facility or café in operation prior to the adoption of these guidelines shall be required to comply with these guidelines.
B. The operation of any outdoor dining facility or café shall be in accordance with the sketch plan approved by the City Manager.
(5) Appeals. Any applicant who has been denied a permit pursuant to these guidelines may, in writing, appeal the denial to the Zoning Board of Appeals within ten (10) days of the date of receipt of the decision denying the permit. The Zoning Board of Appeals shall consider the appeal at its next regularly scheduled meeting. The Board may confirm the decision of the City Manager to deny the application or approve the application if it determines that no significant obstruction to pedestrian travel will result from the proposed activity, and that the proposed outdoor dining facility or café is in substantial compliance with these standards and guidelines. In making this determination, the Board shall consider, among other factors, the scale of the proposed activity, the level of pedestrian traffic on the sidewalk, the configuration of the proposed activity or facility and its relationship to the sidewalk and existing street furniture, bus stops, light poles, etc., and the possible impact on nearby businesses.
(6) Permit fee. Each application will be processed only with payment of a permit fee prescribed (see subsection (c)(2) hereof).
(7) Exceptions. Any applicant who is unable to comply with the design criteria or conditions outlined in subsection (d) hereof, may file an application seeking an exception to those regulations with the Oberlin Planning Commission. That written appeal must be filed within ten (10) days of the decision by the City Manager that the application does not comply with the regulations. The Planning Commission may approve a variance to the regulations if the Commission's findings of fact demonstrate that the exception meets the purpose and intent of the standards or regulations.
(8) Permit fee for exceptions. Any written request for an exception to the standards or regulations is to be accompanied by a fee of fifty dollars ($50.00).
(9) Multiple applications. Should an application be denied by the City Manager and that denial upheld by the Zoning Board of Appeals, or the Planning Commission related to compliance with standards, no further permit application or exception request will be considered or approved within six (6) months of the date of the refusal by the Zoning Board of Appeals or the Planning Commission.
(10) Revocation of permit.
A. In order to enforce the provisions of these guidelines, any business determined not to be in compliance with same shall be issued a written Notice of Violation. Such Notice shall be delivered by hand or sent by certified mail to the business and/or property owner identified on the Application Form.
B. Failure to comply with the written Notice of Violation within twenty-four (24) hours of receipt will result in the revocation of the permit and the authority to operate for a period of seven (7) calendar days from the date of the delivery of a Notice of Revocation. The Notice of Revocation shall be delivered by hand or sent by certified mail to the business and will be effective immediately upon receipt. Any further violation within the same calendar year within which the permit was issued shall result in revocation of the permit for the remainder of that calendar year.
(11) Appeal of loss of privilege. Any business whose permit to operate has been revoked, may appeal that revocation decision to the Zoning Board of Appeals within ten (10) days of receipt of the written notice of revocation. The Zoning Board of Appeals shall consider the circumstances involved with respect to the issuance of the Notice of Revocation and any earlier warnings or Notices of Violation and any mitigating evidence offered by the permit holder, including efforts or assurances that may be provided that would insure compliance with the guidelines. The Board shall have the authority to uphold, overrule or modify the revocation, as long as any such action ensures future compliance with these guidelines.
(12) Penalty. Any person, firm or corporation that violates any of the provisions of this chapter shall, upon conviction thereof in a court of competent jurisdiction, be fined not less than ten dollars ($10.00) nor more than one hundred dollars ($100.00) for each violation. Each and every day that a violation continues shall constitute a separate offense, up to a period of one year.
In addition, the City may institute a civil action in a court of competent jurisdiction to enjoin any violations of this chapter.
(d) Conditions and Requirements.
(1) Restaurants located in the central business district may locate a sidewalk fence and may locate and operate a sidewalk café provided the establishment/restaurant has received a permit therefor.
(2) The following guidelines shall apply to the operation of a seasonal outdoor dining facility or café:
A. Any outdoor dining facility or café shall be located immediately adjacent to and directly in front of the building housing the restaurant and not extend beyond the limits of the property wherein the applicant restaurant is located;
B. Outside seating capacity shall not exceed twenty-five percent (25%) of the restaurant's seating capacity.
C. Sidewalk fence requirements are applicable only to an outdoor dining facility or café and include:
1. Any access opening in the perimeter fencing shall be clear and unobstructed at all times, comply with exit widths required by City Building and Fire Codes and will be no less than 36".
2. Fence design should be considerate of the character of the site and designed to be compatible with the scale, form, proportions, colors and materials of surrounding structures and amenities.
3. Fence materials typically are to be discreet in color, design, and materials and have a relatively transparent finish. An open fence design will aid in reducing visual clutter.
4. Basic components for a sidewalk fence are support posts, bottom rails, mid-level rails, top rails, pickets or other in-fill panels qualifying as relatively transparent, and connections.
5. Preferred materials for fencing include painted ornamental iron, steel, stainless steel or aluminum.
6. Painted wood and plastic fencing including PVC (poly vinyl chloride) that maintain a stable, structural integrity and quality appearance may only be permitted subject to review by the Design Review Subcommittee and approval by the Planning Commission.
7. Any pickets, posts, balusters or similar ornamentation that could catch on pedestrian clothing or property must not extend above the top railing.
8. Openings between pickets or rails in repetitive picket fence designs shall be less than 4". Openings between pickets or rails in fence design greater than 4" shall be 9" or greater.
9. Post spacing shall be between 48" to 60" to provide structural stability.
10. A top rail may allow planter boxes to be mounted on the fencing, which must be firmly affixed so that they will not topple as a result of customers or pedestrians colliding with the fence.
11. A kick rail positioned a maximum of 6" above the finished grade of the sidewalk must be installed in accordance with the Americans with Disabilities Act (ADA).
12. Fencing shall be of sturdy material with no jagged edges and constructed for easy removal during the non-seasonal use.
13. Permanent attachment of the fence to the pavement shall not be permitted.
14. Posts with footings underneath the surface of the sidewalk and core drilling are not permitted means of connections.
15. Design of any proposed connections to the sidewalk shall be subject to approval of the Public Works Director or Director's designee prior to use.
D. All tables and chairs shall be placed so as to not present a sight hazard to vehicular traffic or present a hazard to pedestrians.
E. Prior to commencing operation of any outdoor dining facility, the applicant must submit a certificate of insurance to the City Manager which names the City of Oberlin as an additional insured on the applicant's liability insurance policy.
F. No outdoor dining facility or café shall operate in such a manner as to create any obstruction of pedestrian movements on the public sidewalk. A minimum clear width of 7.5 ft. is required if the sidewalk width is 15 ft. or greater, and if the sidewalk width is less than 15 ft., 2/3rds of the sidewalk must remain available for unobstructed pedestrian travel and 1/3 may be utilized for the outdoor dining facility or café, exclusive of areas occupied by trees, planters, benches, bike racks, pavers, utility poles or other existing structures;
G. No outdoor dining facility or café shall interfere with the operation of nearby businesses;
H. No amplified music or television, radio or loudspeakers shall be permitted;
I. No outdoor dining facility or café shall operate in any manner that does not comply with the requirements of the Lorain County Health Department; any permit required by that Department shall be obtained;
J. No outdoor dining facility or café shall operate in a manner that does not comply, if applicable, with the requirements of the Ohio Department of Commerce, Division of Liquor Control;
K. Businesses are encouraged not to use glass containers or bottles when serving patrons at the outdoor dining facility or café;
L. No person shall use cigar, cigarette or other tobacco products in any outdoor dining facility or café;
M. Employees of any outdoor dining facility or café shall not use public waste receptacles for the disposal of food, beverage or waste materials from the business;
N. All outdoor areas associated with the operation shall be maintained in a litter-free state at all times, and in a clean and sanitary condition. (Ord. 10-71AC CMS. Passed 2-22-11.)