1400 Highland Avenue
Manhattan Beach, CA 90266City of Manhattan Beach
Legislation Details (With Text)
File #: Version: 122-0122
Status:Type: Gen. Bus. - Staff Report Agenda Ready
In control: City Council Regular Meeting
On agenda: Final action:3/1/2022
Title: Discussion of Restaurant Dining Occupancy Limits for Restaurants with Temporary Encroachment Permits and Outdoor Facilities Permits for Outdoor Dining Issued Under COVID-19 Emergency Orders (Community Development Director Tai).
(Estimated Time: 1 Hr.)
DISCUSS AND PROVIDE DIRECTION
Sponsors:
Indexes:
Code sections:
Attachments:
Action ByDate Action ResultVer.
TO:
Honorable Mayor and Members of the City Council
THROUGH:
Bruce Moe, City Manager
FROM:
Carrie Tai, AICP, Community Development Department Director] Erik Zandvliet, T.E., City Traffic Engineer
SUBJECT:..Title
Discussion of Restaurant Dining Occupancy Limits for Restaurants with Temporary Encroachment Permits and Outdoor Facilities Permits for Outdoor Dining Issued Under COVID-19 Emergency Orders (Community Development Director Tai).
(Estimated Time: 1 Hr.)
DISCUSS AND PROVIDE DIRECTION
_________________________________________________________ RECOMMENDATION:
Staff recommends that the City Council discuss and provide direction on existing occupancy limits for restaurants with Temporary Encroachment Permits or Outdoor Facilities Permits for outdoor dining issued under COVID-19 Emergency Orders.
FISCAL IMPLICATIONS:
While there is no readily available data to quantify this, an increase in restaurant occupancy would be expected to increase local sales tax revenue from participating restaurants in proportion to the percentage increase in occupancy. Additional restaurant activity would generate additional patrons, incrementally increasing demand (and related costs) for public services, such as more frequent refuse pick-up, public infrastructure maintenance, and public safety resources.
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BACKGROUND:
On March 13, 2020, the City declared a State of Emergency due to the spread of COVID-19. As part of the operating restrictions, the State and Los Angeles County Department of Public Health (LACDPH) required all non-essential retail businesses to close and restaurants to cease in-person dining (indoors and outdoors). In May 2020, LACDPH began gradually relaxing the closures, allowing for non-essential retail to fully open to customers, as well as restaurants to re-open for outdoor dining only, subject to operating protocols to limit the spread of COVID-19. On June 10, 2020, the City Manager issued Emergency Order No. 10, allowing staff to issue temporary encroachment permits for street dining and business uses in the public right-of-way (PROW), as well as Outdoor Facilities Permits for outdoor uses on private property, referred to collectively in this report as the COVID-19 Outdoor Dining/Business Use Program (“COVID-19 Program”).
As described in Emergency Order No. 10, the main purpose of the COVID-19 Program is to allow restaurants and businesses to “temporarily expand their existing footprints into the public right of way, public property, and private property to accommodate social distancing requirements required by state and county protocols to limit the spread of COVID-19.” These outdoor encroachments are subject to existing Municipal Code provisions and/or Use Permit conditions with the intent to replace, but not exceed, seating or indoor areas restricted from use due to social distancing and other protocols issued by the LACDPH.
Since March 2020, the COVID-19 regulations for indoor restaurant occupancy shifted numerous times, with the general regulations recounted below.
March 15, 2020 to May 28, 2020 All in-person dining suspended May 29, 2020 to June 30, 2020 Indoor dining occupancy limited to 60% July 1, 2020 to November 24, 2020 All indoor in-person dining suspended November 25, 2020 to January 27, 2021 All indoor and outdoor dining suspended January 28, 2021 to March 14, 2021 All indoor dining suspended March 15, 2021 to April 4, 2021 Indoor dining occupancy limited to 25% April 5, 2021 to June 14, 2021 Indoor dining occupancy limited to 50% June 15, 2021 to present No restaurant occupancy limitations Throughout this time, the City worked with the restaurants to adjust the size of some temporary encroachment areas in the PROW to more equitably distribute the available seating area between the restaurants participating in the COVID-19 Program. Some examples of this were the Manhattan Avenue closure between Manhattan Beach Boulevard and Center Place for two weeks in February 2021, as well as allowing restaurants to expand their decks in front of adjacent non-restaurants.
Since its inception in June 2020, all Temporary Encroachment Agreements and Outdoor Facilities Permits restrict the total indoor and outdoor dining occupancy to no more than the pre-pandemic dining occupancy of the restaurant. In other words, the total number of overall occupied seats shall not exceed 100 percent of the maximum approved restaurant capacity at any time. Business owners were required to agree to this in order to begin operating outdoor dining. Furthermore, outdoor alcohol service is only permitted in compliance with the Department of Alcohol Beverage Control (ABC) Temporary Catering Authorization. The temporary ABC authorization imposes the same operating conditions for both the indoor and expanded outdoor licensed premises.
County Health Orders generally include the definition of “occupancy” as “occupant load assigned for City of Manhattan Beach Printed on 2/24/2022Page 2 of 6 powered by Legistar™
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that building or room on its Certificate of Occupancy or as determined by Section 1004 of the 2019 Building Code.” In determining the allowable pre-COVID-19 occupancy for a restaurant, staff consulted the most recent pre-COVID-19 approved floor plans on file with the City. (Their approval status signifies compliance with the Building Code.) In certain cases, the business owners provided pre-COVID-19 maximum seats. In other cases, staff counted seats on a floor plan to determine capacity (with the assumption that restaurant patrons are seated during their dining visits). Outdoor dining area proposals were then evaluated to ensure that the combined seats in the “restricted” indoor portion of the restaurant and the seats in the “proposed” outdoor area did not exceed the pre- COVID-19 occupancy.
By June 2021, the State and LACDPH had lifted all indoor restaurant capacity limits and reduced social distancing protocols for most everyday activities. Many restauranteurs indicated that many customers were still uneasy about dining indoors and that keeping outdoor dining areas allowed restaurants the flexibility to accommodate customer preferences and comfort levels. Through Emergency Order No. 28, the City permitted the outdoor dining areas to remain through the end of the State’s State of Emergency, which expires on March 31, 2022 (unless extended by the Governor). Currently, restaurants have the flexibility to choose the proportion of indoor and outdoor seating that suits them, up to full indoor seating occupancy with no outdoor seating.
Currently, there are 26 outdoor dining/business use encroachment areas in the PROW totaling approximately 10,747 square feet and occupying 57 parking spaces. In addition, the City has also issued sidewalk business/dining permits to 19 businesses in the City under a permit program predating the pandemic; these permits are not impacted by the Emergency Order expiration dates, but are also subject to the same occupancy limits. As of January 1, 2022, businesses are charged $3.00 per square foot per month for the use of the public right-of-way. There are also approximately 12 Outdoor Facilities Permits, which have outdoor dining on private property.
Violations of Temporary Encroachment Agreement and Outdoor Facilities Permits requirements are considered a misdemeanor. In lieu of criminal prosecution, the City has the option to serve violators with administrative citations with fines up to $1,000 per violation and multiple day business closures, pursuant to the enabling Emergency Orders, Manhattan Beach Municipal Code Chapters 1.04 and
1.06, and any other enforcement provisions. During the fall, the City began receiving increasing numbers of complaints about restaurants exceeding their pre-COVID-19 occupancy levels. City staff responded by inspecting and monitoring compliance by verifying the total number of active indoor and outdoor diners, and comparing the total to the maximum restaurant occupancy limit. Staff has confirmed that several restaurants are exceeding their occupancy limits on a regular basis and have subsequently been issued administrative citations. In total, 19 citations have been issued, with some businesses receiving multiple violations.
On February 15, 2022, the City Council requested a discussion on the occupancy limits for restaurants using outdoor dining allowed under the COVID-19 Emergency Orders.
DISCUSSION:
In the City of Manhattan Beach, restaurant uses require approval of a Use Permit. The service of alcohol also requires approval of a Use Permit. A Use Permit is a discretionary land-use application.
Section 10.84.010 of the MBMC states, "Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they may be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area.” Use Permits are subject to the California Environmental Quality Act City of Manhattan Beach Printed on 2/24/2022Page 3 of 6 powered by Legistar™
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(CEQA), which evaluate potential environmental impacts that a proposed project may have on an area. Some of these environmental topics include, noise, air quality, traffic, aesthetics, and biological and cultural resource areas. Furthermore, projects in the Coastal zone must also comply with the Coastal Act, through the City’s Local Coastal Program. Projects in the Coastal Act that create a change in land use intensity of density must obtain a Coastal Development Permit, which is also subject to CEQA. Use Permits, Coastal Development Permits, and CEQA also each have their own requisite public notification and participation processes.
Outside of the COVID-19 pandemic emergency response, restaurants seeking an expansion would be required to obtain a Use Permit, which provides the City and the community the ability to review the proposal for consistency with community vision and City regulations. The purpose of the COVID- 19 Program allowed restaurants to operate outdoors to compensate for the State and County regulations limiting indoor operation. Section 2(D) of Emergency Order No. 10, which enabled the COVID-19 Program, specifies, “In no event shall the overall dining capacity for a restaurant exceed 100% of its approved capacity.” As such, the COVID-19 Program was not intended to function as a de-facto expansion program, bypassing required review processes for expansions, whether temporary or permanent.
The following considerations are presented to inform the City Council’s discussion on the occupancy limits for restaurants:
1. Existing Land Use and Coastal Zone Regulations:
Restaurants participating in the COVID-19 Program are limited to the number of seats shown on approved plans on file with the City. This was to provide an equalizing factor to the additional of outdoor dining, since the inability to expand seating capacity using outdoor space would also not equate to an expansion of square footage. Expansion of capacity beyond 100% pre-COVID-19 capacity is the functional equivalent of a square footage increase, constituting an expansion of use (requiring a Use Permit). In the Coastal zone, this also constitutes an increase in the intensity of land use (requiring a Coastal Development Permit). As mentioned above, Use Permit and Coastal Development Permits are subject to CEQA.
While City (local) Emergency Orders were effective in relaxing certain conditions of Use Permits to enable businesses to alter their operations during the pandemic response, it is unlikely that a local Emergency Order can supersede the City’s Local Coastal Program or the Coastal Act when the conditions creating the emergency abate, or when the State and County restrictions and relaxations are removed.
2. Parking:
An increase to the overall dining occupancy would be expected to increase parking demand.
Based on approximately 10,757 square feet of additional restaurant areas created by outdoor dining spaces in the public right-of-way, the Municipal Code would require 215 additional parking spaces (1 parking space per 50 square feet of seating area). This is not including the 57 parking spaces in the public right-of-way that the outdoor dining areas currently occupy. As indicated by field operations reports, public parking supply reaches capacity on most weekends, particularly during special events and holidays.
3. Increased Activity:
An increase in activity of various types would be anticipated in proportion to the amount of increased dining capacity, particularly if properties are on the public right-of-way. Restaurant staff City of Manhattan Beach Printed on 2/24/2022Page 4 of 6 powered by Legistar™
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must traverse sidewalks to serve dining areas in the public right-of-way, creating additional volume. Similarly, an incremental increase in ambient noise, lighting, placement of restaurant- related apparatus (propane tanks, heat lamps, etc.) would be expected.
4. Public Resources:
Additional refuse services would be required to handle the additional waste generated by an increase in dining activity. An incremental increase in public safety incidents would also be expected.
5. Equity:
It may be inferred that the City would grant special privileges for restaurants to exceed their normal business operation, while retail and service businesses would not be offered that same accommodation to recover from their pandemic-related losses. Additionally, some restaurants would not have the same ability to expand their capacity due to limitations in available public encroachment area.
POLICY ALTERNATIVES:
Staff presents the following alternatives. As a note, the State’s State of Emergency is currently slated to continue until March 31, 2022.
ALTERNATIVE 1:
No action. Restaurants would continue to be required to limit total indoor/outdoor seating to 100% pre-COVID seating capacity for the duration of the COVID-19 Program. Based on observations during regular City patrols of outdoor dining areas, occupancy limits are currently being exceeded on a regular basis. As such, there may be continued enforcement activity if the City receives complaints of over-occupancy.
ALTERNATIVE 2:
Direct staff to pursue an increase in dining occupancy allowances for restaurants with Temporary Encroachment agreements and Outdoor Facilities Permits. Staff would research the ability of City Emergency Orders to allow for expansions of use, increasing land use intensity, both in the public right-of-way and on private property, and particularly in the Coastal zone.
PUBLIC OUTREACH:
City staff has informed the Chamber of Commerce, Downtown Business and Professional Association, North Manhattan Beach Business Improvement District, and the Downtown Residents Association of this agenda item. The City Council meeting has also been noticed in conformance with public meeting requirements.
ENVIRONMENTAL REVIEW:
The modification of occupancy for temporary encroachment areas and outdoor facilities permits for outdoor dining and business uses during an emergency was reviewed for compliance with the California Environmental Quality Act (CEQA). Should the City Council direct staff to pursue Alternative #2, the activity could be deemed: 1) statutorily exempt from CEQA pursuant to Section 15269(c) of the State CEQA Guidelines as it constitutes a specific action to mitigate an emergency; and 2) categorically exempt pursuant to Section 15304(e) and 15311(c) due to its temporary nature with no permanent changes to the right-of-way. Thus, no environmental review would be necessary.
However, this would not apply outside of a State of Emergency.
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LEGAL REVIEW:
The City Attorney has reviewed this report and determined that no additional legal analysis is necessary.
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