DATE:
October 18, 2022
TO:
Adam Politzer, Interim City Manager
FROM:
Charles S. Bryant, Community Development Director
SUBJECT:
An Ordinance Of The City Council Of The City Of Emeryville Amending Article 15 Of Chapter 5 Of The Planning Regulations In Title 9 Of The Emeryville Municipal Code To Make Permanent Certain Temporary Regulations Pertaining To Sidewalk Cafes And Parklets That Were Enacted Due To The COVID-19 Pandemic, And To Make Other Related Amendments
RECOMMENDATION
The Planning Commission and staff recommend that the City Council adopt the first reading of the above-entitled ordinance amending Article 15 of Chapter 5 of the Planning Regulations in Title 9 of the Emeryville Municipal Code to make permanent certain temporary regulations pertaining to sidewalk cafes and parklets that were enacted due to the COVID-19 pandemic, and to make other related amendments.
BACKGROUND
On July 7, 2020, in response to State and County orders prohibiting indoor dining due to the COVID-19 pandemic, the City Council passed Ordinance No. 20-016, temporarily waiving or modifying certain provisions of the City’s Planning Regulations related to outdoor seating for restaurants and bars during the pandemic. This ordinance took effect 30 days later, on August 6, 2020, and was effective for one year, until August 6, 2021. On June 21, 2022, the City Council passed Ordinance No. 22-004 modifying the expiration date of Ordinance No. 20-016 to 180 calendar days after the date of expiration or termination of the City-declared State of Emergency due to the COVID-19 pandemic, and declaring that any outdoor dining facilities approved under Ordinance No. 20-016 remain valid and conforming.
Among other things, Ordinance No. 20-016 waived or modified certain provisions of the Planning Regulations for sidewalk cafes and parklets. For sidewalk cafes, the ordinance waived the requirement to remove furniture at the end of each business day and the restriction on bars having sidewalk cafes, as long as full meals are served. For parklets, the ordinance waived the restrictions on exclusive use by restaurants, table service, and alcoholic beverage service, and allowed bars to have parklets with full meal service, similar to sidewalk cafes. The ordinance waived the requirement for Transportation Committee and City Council review and approval of parklets, allowing staff to approve them administratively.
At the December 21, 2021, City Council meeting Mayor Bauters requested and received majority support for a future agenda item to discuss making COVID parklets permanent in order to eliminate uncertainty and provide opportunities for owners desiring to continue use of these spaces or to create new ones. On May 3, 2022, the City Council discussed the issue and initiated an amendment to the Planning Regulations to be brought to the Planning Commission for a public hearing and to make a recommendation to the City Council.
DISCUSSION
Planning Commission Recommendations
The Planning Commission held a public hearing on the proposed amendments to the Planning Regulations on September 22, 2022. The Commission voted unanimously to recommend that the City Council adopt the proposed amendments with several modifications, which are intended to make the regulations less restrictive and to help create more vibrant outdoor dining areas. The Commission’s recommended modifications, and their rationales, are as follows:
Food Preparation and Storage: The Commission recommends elimination of the provision that prohibits food preparation or storage in sidewalk café or parklet areas (Section 9-5.1504(e)). Their reasoning is that some restaurants feature food preparation at or near dining tables, and there is no reason that this could not occur outdoors as well as indoors, with proper approval from the Alameda County Department of Environmental Health. Such approval is already required pursuant to existing Section 9-5.1504(b), “The permittee shall at all times comply with all Federal, State, and local laws …” Delineation of Sidewalk Café or Parklet Area: The Commission recommends eliminating the requirement for a physical barrier separating the sidewalk café or parklet area from the adjacent sidewalk area when alcoholic beverages are served. Instead, the Commission recommends that a “clear delineation”, such as a painted line, rope, or chain, be required. In the case of a parklet, the curb could serve as the delineation. (Modification of Section 9-5.1505(c)) The Commission reasons that a physical barrier is not required by the State Department of Alcoholic Beverage Control (ABC), nor is it required by adjacent cities. In fact, the sidewalk café and parklet that have been approved and installed during the pandemic, which do have alcoholic beverage service, do not have physical barriers, and this has not created any problems.
Food Service: The Commission recommends elimination of the provisions requiring a sidewalk café or parklet to maintain full food service in order to allow service and consumption of alcoholic beverages. (Modification of Section 9-5.1504(a) and deletion of Section 9-5.1505(e)) Their reasoning is that allowing bars to have seating on the sidewalk or in a parklet without the logistical challenge of having to arrange for food service will add to the vibrancy of Emeryville’s night life.
The Planning Commission’s recommended modifications are indicated in red in Exhibit A to the attached proposed ordinance. If the City Council accepts these modifications on first reading, they will be converted to regular type for second reading and final passage of the ordinance.
Proposed Amendments
The proposed amendments to the regulations for sidewalk cafes and parklets in Article 15 of Chapter 5 of the Planning Regulations, as modified by the Planning Commission, include the following:
Sidewalk Cafes:
Elimination of the restriction that prohibits bars from having sidewalk cafes, and elimination of the provisions that require that full food service be provided in order to allow service or consumption of alcoholic beverages in a sidewalk café or parklet. (Modification of Section 9-5.1504(a) and deletion of Section 9-5.1505(e)) Elimination of the provision requiring that all furnishings be removed at the end of each business day, as long as such furnishings are adequately secured. (Modification of Section 9-5.1504(f)) Elimination of the provision that prohibits food preparation or storage in sidewalk café or parklet areas (Deletion of Section 9-5.1504(e)).
Elimination of the requirement that sidewalk cafes and parklets with alcoholic beverage service be separated from the adjacent sidewalk area by a substantial physical barrier, but instead to require that they have a “clear delineation” from the adjacent sidewalk area, such as a painted line or a rope. In the case of a parklet, the curb could provide this delineation (Modification of Section 9-5.1505(c)).
Parklets:
Continuing to require City Council approval of parklets but eliminating the requirement for Transportation Committee review and recommendation prior to Council approval. (Modification of Section 9-5.1514(a)) Elimination of the provision that a parklet shall be available for use by the general public and shall not be reserved for the exclusive use an adjacent Restaurant or other use. (Deletion of Section 9-5.1514(b)) Elimination of the provision that prohibits table service in a parklet. (Deletion of Section 9-5.1514(c)) Elimination of the restriction on service and consumption of alcoholic beverages in a parklet. (Deletion of Section 9-5.1514(e)) General:
Clarification that sidewalk cafes and parklets shall be in compliance with the applicable accessibility provisions of the Americans with Disabilities Act (ADA) and the City of Emeryville Building Code, unless expressly waived or modified. (New Section 9-5.1504(l)) Making it explicit that no separate encroachment permit shall be required for a sidewalk cafe or parklet. (New Section 9-5.1504(m)) Other Provisions:
In addition, several other modifications and “clean-up” provisions are included in the proposed amendments:
Throughout the article, the term “Restaurant” has been replaced by “Eating and Drinking Establishment”. Under the Planning Regulations use classification system, this is a more comprehensive term that also includes bars and mobile food vendors on private property, any of which might request a sidewalk cafe or parklet.
Section 9-5.1503 has been modified to clarify that a sidewalk cafe or parklet is permitted only in zoning districts in which the associated Eating and Drinking Establishment is permitted or conditionally permitted.
Throughout the article, “sidewalk cafe” has been replaced by “sidewalk cafe or parklet”, to make it explicit that the regulations apply to both types of outdoor eating areas. (Where a regulation is specific to only a sidewalk cafe or parklet, only that term is used).
Provisions for restoration of the roadway after removal of a parklet have been added to mirror existing provisions for restoration of the sidewalk after removal of a sidewalk cafe.
A provision has been added to require sidewalk cafes and parklets to provide access to underground utilities at the permittee’s sole expense. (New Section 9-5.1504(n)) “Planning Director” and “Planning and Building Director” have been replaced by “Community Development Director”, and “Planning and Building Department” has been replaced by “Planning Division” throughout the article.
Pronouns have been replaced by gender-neutral terms (“they/their”).
Environmental Review
The proposed amendments are exempt from environmental review under State CEQA Guidelines Section 15301, which applies to minor alterations to existing facilities with negligible expansion of use, and the “common sense exemption” at Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the proposal may have a significant effect on the environment. Sidewalk cafes and parklets are a negligible expansion of existing uses and the proposed regulations do not commit the City to any new construction or new projects and would thus not result in any significant effects. Any new project would undergo the appropriate level of discretionary review, including CEQA review.
Fiscal Impact
None.
Staff Communication with the Public
As required by the Planning Regulations, a legal advertisement was published in the Oakland Tribune. As noted above, the Planning Commission unanimously recommended adoption of the Planning Regulations amendments, with modifications, at its September 22, 2022 meeting.
CONCLUSION
The Planning Commission and staff recommend that, following a motion to read by title only, the City Council adopt the first reading of the attached ordinance amending Article 15 of Chapter 5 of the Planning Regulations in Title 9 of the Emeryville Municipal Code.
Approved and Forwarded to the
City Council of the City of Emeryville:
Adam Politzer, Interim City Manager
ATTACHMENTS
Proposed Ordinance, including Exhibit A, Proposed Planning Regulations Amendments Sidewalk Cafe and Parklet Regulation Amendments
City Council Meeting | October 18, 2022
City of Emeryville
CALIFORNIA
MEMORANDUM