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Current Council Agenda and Past Meeting Information

CITY COUNCIL AGENDA ITEM NO. 30

Meeting Date: December 11, 2007

Subject/Title: Waive the first reading and introduce an ordinance to approve a rezone (RZ 07-01) amending Chapter 9.36 of the Brentwood Municipal Code to allow consumption of alcoholic beverages in the public right-of-way and deleting Chapter 17.900 in its entirety and replacing it with a new Chapter 17.900 to establish development and operational standards for the review and approval of outdoor dining uses and merchandise displays in the public right-of-way and a resolution amending the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule establishing an Outdoor Dining Use and Merchandise Display Fee.

Prepared by: Jeff Zilm, Senior Planner

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
1. Introduce and waive the first reading of an ordinance amending Chapter 9.36 of the Brentwood Municipal Code to allow consumption of alcoholic beverages in the public right-of-way and deleting Chapter 17.900 in its entirety and replacing it with a new Chapter 17.900 to establish development and operational standards for the review and approval of outdoor dining uses and merchandise displays in the public right-of-way.

2. Adopt a resolution amending the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule to collect the applicable outdoor dining and merchandise display fees which will recover the City’s expenses associated with administering the implementing ordinance.

PREVIOUS ACTION
• On December 9, 1959, the City Council adopted Ordinance No. 109, creating Chapter 9.36 of the Brentwood Municipal Code that established guidelines for the consumption of alcoholic beverages.
• On November 14, 2000, the City Council adopted Ordinance No. 651, creating Chapter 17.900 that established standards for outdoor dining uses and merchandising displays within the Central Business (CB) Zone public right-of-way.
• On August 8, 2004, the City Council adopted Ordinance No. 783 amending Chapter 17.900 to exclude the Farmers Market from the requirements of this chapter.
• On November 16, 2005, the City Council adopted Ordinance No. 815 approving the Downtown Specific Plan and creating the Downtown (DT) Zone, which replaced the Central Business (CB) Zone.
• On November 6, 2007, the Planning Commission recommended that the ordinance be forwarded to the City council for approval.


BACKGROUND
On August 16, 2007 the first draft of the new Chapter 17.900 and the amendment to Chapter 9.36 was presented to the Land Use and Development Committee for its review. At this meeting, there was a consensus that the new wording for the ordinance was beneficial; however, staff did receive comments from the Committee members which are summarized as follows:

• Revise the outdoor dining definition to include businesses serving alcoholic beverages only (i.e. The Brentwood Wine Store) and allow them the ability to have an outdoor dining or serving area, providing the establishment has an ABC liquor license that allows alcoholic beverages to be served in an outdoor setting.

• Prohibit plastic furniture.

• Eliminate the wording relating to the small card notices being placed on the outdoor tables.

• Eliminate the wording to allow the use of portable signs and additional signage on any outdoor umbrellas.

• Revise the wording to require an annual permit with a fee for the outdoor dining and merchandise display permit.

The Committee directed staff to review these comments and come back to the Committee at the next available meeting with revisions that reflected the comments.

At the September 6, 2007 meeting, staff presented the previously requested changes along with two new items to the Committee for its review. The Committee was satisfied with all of the new wording addressing the comments with the exception of allowing signage on any outdoor umbrellas. The Committee believed that as long as the only form of advertisement on the outdoor umbrellas was the name of the business, it would be appropriate to allow it. Staff also presented the following two items to the Committee as to whether or not they should be added to the ordinance:

• Any use of outdoor lighting would be subject to the approval of the Community Development Director.

• No sound amplification device, musical instrument or sound reproduction device shall be operated or used in outdoor dining areas.

The Committee was in agreement with the use of outdoor lighting provided it was reviewed and approved by the Community Development Director, however, the Committee did want to allow an establishment the ability to have a live band or background amplified music for listening pleasure in the outdoor dining area and directed staff to provide wording allowing it. Staff has incorporated all of these changes into the final draft ordinance.

At its meeting of November 6, 2007, the Planning Commission considered this request. In a 5-0 vote, the Commission recommended the ordinance be forwarded to the City Council for approval.


PROJECT DESCRIPTION:
An ordinance amending Chapter 9.36 of the Brentwood Municipal Code to allow consumption of alcoholic beverages in the public right-of-way and deleting Chapter 17.900 in its entirety and replacing it with a new Chapter 17.900 to establish development and operational standards for the review and approval of outdoor dining uses and merchandise displays in the public right-of-way and a resolution amending the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule establishing an Outdoor Dining Use and Merchandise Display Fee.

ENVIRONMENTAL DETERMINATION:
A Negative Declaration has been prepared for this rezone in accordance with the requirements of the California Environmental Quality Act (CEQA). An Environmental Impact Report was previously prepared and adopted for the Downtown Specific Plan. No changes to the adopted mitigation measures are required as part of this request and no further environmental review is required beyond the currently prepared Negative Declaration.

ANALYSIS:
The General Plan provides direction for the enhancement of the downtown as a key to Brentwood’s economic well being, as follows:

• Policy 3.1 – Downtown Focus: Support Downtown as the community’s commercial, civic and cultural focuses.

• Policy 3.1.1 – High Activity uses: Retain and encourage high activity uses in the downtown area.

• Policy 5.3.1 – Facilitate Business: Facilitate the expansion of existing businesses and the attraction of new businesses that will draw additional shoppers to the downtown.

The Downtown Specific Plan also provides direction for the enhancement of the downtown, as follows:

• 1.2 Plan Goals and Objectives – The intent of the Downtown Specific Plan is to guide growth and change in downtown to ensure it evolves to embody the community’s vision for a vibrant, active, and beautiful City district that continues to play an essential role in the daily lives of the City’s residents.

One of the ways to meet these General Plan policies and Downtown Specific plan goals and objectives, and maintain and enhance the activity, vitality and ambience of a downtown is to encourage sidewalk dining activity. This facilitates the expansion of existing businesses, is a high activity, pedestrian oriented use and can draw additional shoppers. Many cities allow outdoor dining in the public right-of-way to successfully achieve such policies. The City of Brentwood has seen existing eating and dining facilities in the downtown add outdoor dining areas in the public right-of-way (i.e. Grazie’s and The Emporium). While these uses can be a significant asset to Brentwood there is a need for some reasonable regulations to protect adequate access, aesthetics and liability.

The primary purpose for staff initiating this rezone is to establish new guidelines for outdoor dining and outdoor display of merchandise and to allow for the public consumption of alcoholic beverages within the public right-of-way of the Downtown (DT) Zone. This will ensure that any eating or drinking establishment or retail establishment wishing to display their merchandise outside meeting the required guidelines could establish an area outside of the building and within the public right-of-way where it can serve food and alcoholic beverages or display merchandise to its customers.

As stated above, this text amendment is needed to rectify some outdoor dining and outdoor merchandise display requirement inconsistencies, relating to the operation, development and use of any outdoor dining or outdoor merchandise display areas, between the Downtown Specific Plan and Chapters 9.36 and 17.900 of the Brentwood Municipal Code.

The attached implementation ordinance has been prepared to set forth the process by which the City will review and approve outdoor dining uses and outdoor merchandise displays and impose related fees needed to allow outdoor dining and outdoor merchandise displays. The attached fee resolution amends the City’s 2007-2008 Cost Allocation Plan and Master Fee Schedule to include outdoor dining and outdoor merchandise display permit fees, which will recover related City expenses needed to administer the implementing ordinance including the site plan review, on-site inspections, fee determination and collection, accounting, and annual permit renewal.

In order to determine the administrative costs involved in issuing the Outdoor Dining Use and Outdoor Merchandise Display permit, staff complied a list of the staff positions that would review and issue the permit as well as the hourly billing rate for each of the positions and made the determination that the initial fee would be set at $734.00 with an annual renewal fee set at $240.00, as described in “Exhibit A”. The City’s goal is that all City services are covered by the established fees, although should the Council desire to encourage and facilitate the establishment of outdoor dining or outdoor merchandise displays in the Downtown, it may make a decision to set the initial fee lower than the actual cost, thereby subsidizing the Planning service from the General Fund. The impact would be minimal as the maximum number of outdoor dining establishments and requests for outdoor merchandise displays in this area would be anticipated to be approximately 15 to 20. The initial and renewal fee could be $240.00.

FISCAL IMPACT
No commitment of funding is required. The implementing ordinance establishes outdoor dining uses and outdoor merchandise display fee.

Attachments:
1. Ordinance
2. Resolution with Exhibit “A”
3. Negative Declaration
4. Specific Plan Downtown District Zones Map
5. City of Brentwood Zoning Map

Attachment 1

CITY COUNCIL ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADOPTING A NEGATIVE DECLARATION FOR REZONE NO. 07-01, AMENDING THE BRENTWOOD MUNICIPAL CODE BY MODIFYING CHAPTER 9.36, AND DELETING CHAPTER 17.900 IN ITS ENTIRETY AND REPLACING IT WITH A NEW CHAPTER 17.900, LOCATED WITHIN THE DOWNTOWN ZONE.

WHEREAS, the City of Brentwood has initiated a rezone to amend the Brentwood Municipal Code by deleting Chapter 17.900 in its entirety and replacing it with a new Chapter 17.900 in order to be consistent with the City’s General Plan and the approved Downtown Specific Plan and the modern needs of a growing mixed use community and meet the expectations of its citizen; and

WHEREAS, Goal 3 of the Land Use Element of the City’s General Plan calls for the creation of a diversified mix of retail centers, service commercial activities, manufacturing enterprises and high-paying employment opportunities that contribute to Brentwood’s economic well-being ; and

WHEREAS, Policy 3.1 of the Land Use Element of the City’s General Plan calls to maintain the Downtown as the community’s dominant commercial, civic and cultural center; and

WHEREAS, Policy 3.1.1 of the Land Use Element of the City’s General Plan calls to retain and encourage an intensification of retail, office and entertainment uses on the Downtown; and

WHEREAS, Policy 5.3.1 of the Economic Development Element of the City’s General Plan calls to facilitate the expansion of existing businesses and the attraction of new businesses that will draw additional shoppers to the downtown; and

WHEREAS, Policy 5.3.2 of the Economic Development Element of the City’s General Plan calls to encourage the development and expansion of downtown goods and services that are unique to the City that will establish a “niche” and make it competitive with outlying commercial areas; and

WHEREAS, the Planning Commission held on November 6, 2007, a public hearing on the proposed Municipal Code text amendment to Chapter 17.900 for the purpose of reviewing the staff report, which includes an analysis of the consistency of the proposed project with all goals and policies of the General Plan, considered all comments made by public testimony with respect to this project and all other documents; and

WHEREAS, a duly noticed public hearing on this project was advertised in the Brentwood Press on November 30, 2007; and

WHEREAS, on December 11, 2007, the City Council held a public hearing on the proposed implementing ordinance for the Outdoor Dining Use and Outdoor Merchandise Display permit; and

WHEREAS, the City Council has reviewed and given consideration to all written material and oral testimony presented before and during the hearing.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood does hereby ordain as follows:

Section 1. The foregoing recitals and staff report statements are found and determined to be true and correct.

Section 2. No text amendment shall occur, which is inconsistent with the City’s General Plan and in making this decision the City Council considered the consistency of the proposed action to the Municipal Code and whether the proposed action is inappropriate or otherwise contrary to the public interest.

Section 3. That the Mitigated Negative Declaration for the project has been prepared and circulated in accordance with all applicable provisions of the California Environmental Quality Act and represents the independent judgment of the City of Brentwood.

Section 4. The Negative Declaration for the Outdoor Dining Use and Outdoor Merchandise Display project was prepared in conjunction with Public Resources Code Section 21000 et seq., and the State of California Environmental Quality Act (CEQA) Guidelines Section 15000 et seq.. All impacts associated with this project have been analyzed in the Negative Declaration prepared for this project, and the Council has independently reviewed and considered the information contained herein, and adopted findings as a responsible agency related to the Negative Declaration for the project prior to making its decision on this resolution. No substantial changes have occurred to the circumstances under which that Negative Declaration was certified and no new information, which was not known and could not have been known at the time that the Negative Declaration was certified as complete, has become available relating to the environmental effects of this project. Therefore, the Negative declaration for the project is adequate for the approval relating to this resolution.

Section 5. The City Council further finds that no significant new information within the meaning of Public Resources Code Section 21092.1 and CEQA Guidelines Section 15088.5 has been presented to the City that would necessitate re-circulation of the Mitigated Negative Declaration for public review. The City Council has considered all verbal and written comments relating to the Mitigated Negative Declaration and finds no significant new information has arisen.

Section 6. The proposed text amendment is consistent with the public interest and the City’s General Plan Land Use Element Goal 3 Economic Vitality which encourages a diversified mix of strong retail centers and service commercial activities that contribute to Brentwood’s economic well-being and Policy 3.1.1 which states “Retain and encourage an intensification of retail and entertainment uses in the Downtown”; and Economic Development Goal 5 Retail Services which encourage retail and service growth that corresponds with local and regional demands, generates tax revenues for the City, and maintains the historical commercial focus and vitality of the downtown and Policy 5.3.2 which states “Encourage the development and expansion of downtown goods and services that are unique to the City that will establish a “niche” and make it competitive with outlying areas”.

Section 7. The text amendment will clarify Chapters 9.36 and 17.900 so that activities may be conducted in harmony with other uses within the Downtown that encourage or create new activities which will support and induce balanced economic growth.

Section 8. The City Council hereby deletes Chapter 9.36 of the Brentwood Municipal Code and replaces it with the following:

CHAPTER 9.36
PUBLIC CONSUMPTION OF ALCOHOLIC
BEVERAGES
Sections:
9.36.010 Drinking in public places unlawful.
9.36.020 Violation a misdemeanor – Penalty.
9.36.030 Exceptions

9.36.10 Drinking in public places unlawful.

Except as otherwise provided in Section 9.36.030 of this chapter, it is unlawful for any person to drink any malt, spirituous or vinous liquor containing any alcohol, upon any public street, alley, way, sidewalk, parkway or public parking area within the city of Brentwood.

9.36.20 Violation a misdemeanor – Penalty

Except as otherwise provided in Section 9.36.030 of this chapter, any person if the provision of this chapter is guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail of Contra Costa County for not more than six months, or by such fine and imprisonment.

9.36.30 Exceptions

The provisions of section 9.36.010 of this chapter shall not be applicable to the following:

A. During regular business hours, those portions of a dining or eating establishment, open and accessible to the public, upon which alcoholic beverages may be sold or consumed in accordance with a valid on-sale license from the California department of alcoholic beverage control, and in accordance with the provisions of Chapter 17,900 of the Brentwood Municipal Code.

Section 9. The City Council hereby deletes Chapter 17.900 and replaces it with the following:

CHAPTER 17.900
STANDARDS FOR OUTDOOR DINING USES AND MERCHANDISE DISPLAYS IN THE DOWNTOWN (DT) ZONE

Sections:
17.900.001 Purpose and intent.
17.900.002 Outdoor dining uses defined.
17.900.003 Outdoor merchandise displays defined.
17.900.004 Applicability of outdoor dining uses and merchandise displays standard.
17.900.005 Required standards.
17.900.006 Indemnification and insurance.
17.900.007 Suspension of permit.
17.900.008 Violations of conditions.
17.900.009 Procedure for outdoor merchandise displays not in the public right-of-way.
17.900.010 Appeal.

17.900.01 Purpose and intent.

The purpose and intent of this chapter is to encourage new development in the Downtown (DT) Zone; to carefully consider the impacts of new commercial development on the viability on the downtown, to facilitate the expansion of existing businesses that will draw additional shoppers to downtown; to develop a design plan for the downtown to create a feeling of unity and destination so that buildings compliment each other; to establish development and operational standards for the review of outdoor dining uses and merchandise display in the Downtown (DT) Zone; and to encourage business organizations to sponsor retail events to bring shoppers to the downtown area on a regular basis.

17.900.02 Outdoor dining uses in the public right-of-way defined.

“Outdoor dining uses in the public right-of-way” means eating or drinking establishments which serves ready-to-eat food and/or beverages, having outdoor dining areas in or on a public right-of-way.

17.900.03 Outdoor merchandise displays in and out of the public right-of-way defined.

“Outdoor merchandise displays in and out of the public right-of-way” means retail commercial establishment displays of merchandise offered for sale, in the public right-of-way or that can otherwise be seen from ground level of a public right-of-way.


17.900.04 Applicability of outdoor dining uses and merchandise displays standards.

Establishment of an outdoor dining use or merchandise display in the public right-of-way shall require design review approval and issuance of an outdoor dining/merchandise display permit by the Director of Community Development or his/her designee and shall be prepared and submitted pursuant to Chapter 17.800 of the Brentwood Municipal Code. The Director of Community Development or his/her designee shall follow the procedures of this chapter prior to issuing an outdoor dining/merchandise display permit and notices for outdoor dining uses serving alcoholic beverages shall be sent to all property owners and businesses within three hundred feet (300') of the proposed site. The Director of Community Development or his/her designee may establish conditions of approval for the outdoor dining use or merchandise display permit as necessary to achieve the requirements of this chapter. Upon receipt of an application for outdoor dining permit serving alcoholic beverages, the Director of Community Development or his/her designee shall refer the application to the Chief of Police for his/her review and comment. Approval of the outdoor dining permit by the Director of Community Development or his/her designee shall also fulfill the requirements of Chapter 9.36 of the Brentwood Municipal Code.

17.900.05 Required Standards.

No outdoor dining use or merchandise display in the public right-of-way may be approved unless all of the following development and operational standards are met:

A. Outdoor dining use shall be permitted as allowed under the Downtown Core Street Alt. “B” Flexible Zone and as shown in the Downtown Specific Plan, or on public sidewalks as long as all other applicable regulations are adhered to.

B. A four foot (4') unobstructed sidewalk clearance for pedestrians and wheelchairs shall be maintained at all times from a table, chair, bench, display, planter, or any other appurtenance used as part of a sidewalk dining area or sidewalk decorative display. No sidewalk dining area or sidewalk decorative display shall be located so as to block access to or from a building. A minimum unobstructed clear area shall be maintained which extends two feet (2') to either side of both door jambs and eight feet (8') perpendicularly from the door in a closed position. On a corner lot, no sidewalk dining area or sidewalk decorative display shall be located within the area bounded by the extensions of the corner building walls between the building and the curb.

C. Sidewalk decorative displays shall occupy no more than fifty (50) square feet per business. All sidewalk decorative displays shall be removed daily after business hours. All sidewalk dining furniture, including planters or other approved barriers around a sidewalk dining area, may remain if unable to be easily moved. No portion of a sidewalk dining area or sidewalk decorative display shall be permanently attached to the sidewalk.

D. Any umbrella, heater, or similar feature used in a sidewalk dining area or sidewalk decorative display shall maintain a minimum height clearance of seven feet (7’) and be safely secured to the satisfaction of the Director of Public Works/City Engineer and Chief Building Official or their designees.

E. Sidewalk dining areas and sidewalk decorative displays shall generally be located within the sidewalk area fronting the establishment. Such areas may be extended beyond the frontage with the approval of any affected business owner and the Director of Community Development or his/her designee.

F. Outdoor dining and merchandise display in the public right-of-way shall not be required to provide additional parking spaces for the outdoor area.

G. Any outdoor lighting associated with outdoor dining areas shall be subject to the approval of the Director of Community Development or his/her designee.

H. Sound amplification devices and/or musical instruments providing background music for listening pleasure, shall be allowed in the outdoor dining areas to the approval of the Director of Community Development or his/her designee.

I. The design and appearance of all proposed improvements or furniture, including but not limited to tables, chairs, benches, umbrellas, planters, and menu boards, to be placed in the sidewalk dining area shall present a coordinated theme and be compatible with the appearance and design of the principal building, as determined by the Director of Community Development and Chief Building official or their designees. The use of plastic tables and chairs is prohibited. Sidewalk decorative displays shall be designed to enhance the appearance of a structure or site and shall present an attractive arrangement of merchandise sold within the store. Sidewalk dining and/or outdoor merchandise display may only occur during the hours of operation established for the individual businesses.

J. The permittee shall maintain the sidewalk dining area or sidewalk decorative display area, and the adjoining street, curb, gutter, and sidewalk in a neat, clean, and orderly condition at all times. This shall include all tables, chairs, benches, displays, or other appurtenances placed in the public right of way. Provisions shall be made for trash receptacles to serve the sidewalk dining area, subject to the approval of the Director of Public Works/City Engineer and Director of Community Development or their designees. The permittee, on a regular basis, shall clean the surface of the sidewalk by washing or buffing to remove any stains, marks, or discoloring to the satisfaction of the Director of Public Works/City Engineer or his/her designee. In the event damage does occur to the adjoining street, curb, gutter, or sidewalk the permittee shall notify the City of the damages and shall be responsible for all repairs of said damages subject to the review and approval of the Director of Public Works/City Engineer and Chief Building Official or their designees.

K. Special standards for outdoor dining areas with alcoholic beverage service.

a. Alcoholic beverages may only be served in sidewalk dining areas which are established in conjunction with an eating or drinking establishment.

b. The sidewalk dining area shall be physically separated from the rest of the sidewalk by a barrier no greater than three feet (3') in height. The barrier shall be compatible with the appearance and design of the building and the rest of the sidewalk dining area and shall be subject to the approval of the Chief of Police, Director of Public Works/City Engineer and Director of Community Development or their designees. The barrier shall be portable and may consist of planters, removable bollards, or similar features which involve no alteration or damage to the sidewalk.

c. A sign shall be posted within the establishment, subject to the approval of the Chief of Police and Director of Community Development or their designees, stating that alcoholic beverages must be kept within the sidewalk dining area at all times.

d. The capacity of the sidewalk dining area shall be limited to the number of seats, as approved by the Director of Community Development or his/her designee.

e. No bar shall be allowed in the sidewalk dining area.

f. A license shall be obtained from the Department of Alcoholic Beverage Control (ABC) prior to the operation of a sidewalk dining area serving alcoholic beverages and shall be maintained continuously as long as alcoholic beverages are served in the sidewalk dining area. Loss of such license shall automatically constitute termination of the City permit to serve alcoholic beverages in the sidewalk dining area.

L. In addition to whatever signage may be permitted for the dining establishment use by the specific plan, and notwithstanding any provisions of the specific plan to the contrary, provided that the sign is attractively designed, maintain adequate pedestrian and vehicle sight clearance per subsection “B” of this section, does not block the visibility of display windows or signage of any adjacent business, is stored indoors after hours of operation, and is limited to no more than a thirty-six inch by eighteen inch (36” x 18”) area. Additional signage on umbrellas may also be permitted. Umbrella signage shall be limited to the business name only and shall consist of only one line of lettering not to exceed twelve inches (12”) in height. The Director of Community Development or his/her designee shall have design review authority for signs used in conjunction with outdoor dining uses and shall carry out such design review authority in conjunction with the overall review of the outdoor dining use.

M. No outdoor dining or merchandise display in the public right-of-way, including furnishings and signs, shall block visibility of display windows or signage of adjacent businesses, unless written consent of any affected business owner to block visibility is obtained by the applicant and provided to the Director of Community Development or his/her designee.

N. Approval of an outdoor dining or merchandise display permit in the public right-of-way shall be valid for one-year. The permittee shall pay, on an annual basis, the Outdoor Dining and Merchandise Display permit fee established by resolution of the City Council. Failure to pay the annual fee prior to the permit expiration date shall cause a lapse in the Outdoor Dining and Merchandise Display permit which terminates the privilege to operate an outdoor area for dining and merchandise display. An application for a new permit must then be filed if the person wishes to restore the privilege to operate an outdoor area for dining or merchandise display. Applications for an outdoor dining or merchandise display permit in the public right-of-way shall be filed by the operator of the use, or by an agent, trustee or attorney for the operator.

17.900.06 Indemnification and Insurance

The permittee shall be required to defend, indemnify and hold harmless the City and its officers and employees from and against all claims, losses, damage, injury and liability for damages arising from the permittee's use of the public right of way. The permittee shall provide to the City in a form and in amounts acceptable to the City’s Risk Manager in conjunction with the City Attorney, certificates of insurance evidencing the existence of a general liability policy covering the area subject to the permit.

17.900.07 Suspension of Permit

The Director of Public Works/City Engineer or his/her designee shall have the right to suspend or prohibit the operation of a sidewalk dining area or require removal of a sidewalk decorative display at any time because of anticipated or actual problems or conflicts in the use of the sidewalk area. Such problems or conflicts may arise from, but are not limited to, scheduled festivals, parades, marches and similar special events; repairs to the street, sidewalk or other public facility; or from demonstrations or emergencies occurring in the area. To the extent possible, the City will give prior written notice of any time period during which the operation of the sidewalk dining area or sidewalk decorative display must be suspended.

17.900.08 Violation of Conditions

A. If any portion of a sidewalk dining area or sidewalk decorative display obstructs the public right of way beyond which is provided for in this chapter, the Director of Community Development or his/her designee shall immediately direct the permittee to move the obstruction. If the permittee fails to do so, the Director of Community Development or his/her designee is entitled to immediately move the obstruction.

B. If the sidewalk dining area or sidewalk decorative display is not maintained in a neat, clean, and orderly condition, or as conditioned by the Director of Community Development, the Director of Community Development or his/her designee shall direct that the permittee or property owner correct the condition and/or remove the furniture, displays, and appurtenances. If the Director of Community Development or his/her designee finds that it is necessary to remove the furniture, displays, or appurtenances in the interest of the public health, safety, or general welfare and the permittee fails to remove them, the Director of Community Development or his/her designee may immediately remove them at the expense of the permittee or property owner.

C. A sidewalk dining/decorative display permit may be revoked by the Director of Community Development or his/her designee upon a determination that the permittee has not complied with the provisions of this chapter or the conditions of the design review approval. The Director of Community Development or his/her designee shall hold a hearing and, if not satisfied that the provisions or conditions are being complied with, shall revoke the permit or take such actions as may be necessary to ensure compliance with the regulation or condition.

D. The Director of Community Development or his/her designee shall suspend the service of alcoholic beverages in the sidewalk dining area and shall hold a hearing on the matter as provided in Section 17.900.010, subsection C above, if a sidewalk dining area serving alcoholic beverages is not operated as required in this chapter, or if the restaurant operator is not able to control patrons consuming alcoholic beverages to the extent that patrons demonstrate a pattern of behavior of loud, offensive, or abusive actions, the physical or verbal harassment of passers-by, or the removal of alcoholic beverages from the sidewalk dining area.

17.900.09 Procedure for outdoor merchandise displays not in the public right-of-way

Any business wanting to establish an outdoor merchandise display area that can otherwise be seen from ground level of a public right-of-way and is located on-site and outside of the public right-of-way outdoor merchandise display area, as described in this ordinance, shall submit a design review application for the outdoor merchandise display area to the City, for review an approval, pursuant to Chapter 17.820 of the Brentwood Municipal Code, prior to establishing the outdoor merchandise display area on-site. The purpose of this is to foster an attractive design for the outdoor merchandise display area through consideration of aesthetic and functional relationships to surrounding business establishments and in order to further enhance the city’s appearance, and the livability and usefulness of the properties. The intent of this is to allow decorative outdoor display of merchandise and not outdoor storage of merchandise.

17.900.10 Appeal

Action of the Community Development Director may be appealed pursuant to Chapter 17.880 of the Brentwood Municipal Code.

Section 10. This Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the Ordinance in accordance with that law. Further, the City Clerk is directed to cause this Ordinance to be entered in the City of Brentwood Municipal Code. This Ordinance shall take effect and be in force 30 days following its adoption and, prior to the expiration of 15 days after its adoption, it shall be published once with the names of the council members voting for and against it in a newspaper of general circulation, available in the City of Brentwood.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 11th day of December 2007, by the following vote:

Attachment 2

CITY COUNCIL RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ADOPTING THE OUTDOOR DINING USE AND OUTDOOR MERCHANDISE DISPLAY FEE AND AMENDING THE 2007-2008 COST ALLOCATION PLAN AND MASTER FEE SCHEDULE.

WHEREAS, the City Council has adopted ordinances and resolutions establishing and revising fees required to be paid by applicants wishing to establish an outdoor dining use or outdoor merchandise display area; and

WHEREAS, Government Code Section 65104, 65909.5, 66104, and 66451.2 allow the City to establish fees to offset the City’s administrative costs in processing permits, licenses, subdivision maps and other entitlements; and

WHEREAS, Brentwood Municipal Code Chapter 17.900 provides for the payment of the Outdoor Dining Use or Outdoor Merchandise Display Permit fee; and

WHEREAS, Policy 3.1 of the Land Use Element of the City’s General Plan calls to maintain the Downtown as the community’s dominant commercial, civic and cultural center; and

WHEREAS, Policy 3.1.1 of the Land Use Element of the City’s General Plan calls to retain and encourage an intensification of retail, office and entertainment uses on the Downtown; and

WHEREAS, Policy 5.3.1 of the Economic Development Element of the City’s General Plan calls to facilitate the expansion of existing businesses and the attraction of new businesses that will draw additional shoppers to the downtown; and

WHEREAS, Policy 5.3.2 of the Economic Development Element of the City’s General Plan calls to encourage the development and expansion of downtown goods and services that are unique to the City that will establish a “niche” and make it competitive with outlying commercial areas; and

WHEREAS, the City has prepared an analysis of the costs to review applications and collect applicable Outdoor Dining Use and Outdoor Merchandise Display Permit fees required by Chapter 17.900, as described in Exhibit “A”; and

WHEREAS, the fee established herein are adopted and implemented by the City Council; and

WHEREAS, a duly noticed public hearing on this project was advertised in the Brentwood Press on November 30, 2007; and

WHEREAS, on December 11, 2007, the City Council held a public hearing on the proposed implementing ordinance and the adoption of related fee for the Outdoor Dining Use and Merchandise Display Permit; and

WHEREAS, the City Council has reviewed and given consideration to all written material and oral testimony presented before and during the hearing.

NOW, THEREFORE, the City Council of Brentwood does hereby resolve as follows:

Section 1. Findings

The City Council makes each of the following findings:

A. The purpose of the Outdoor Dining Use and Outdoor Merchandise Display fee is to help maintain the Downtown as the community’s dominant commercial, civic and cultural center.

B. The Outdoor Dining Use and Outdoor Merchandise Display fee helps to implement Goal 3, Policy 3.1 and 3.1.1 of the Land Use Element and Policy 5.3.1 and 5.3.2 of the Economic Development Element of the General Plan.

C. Based upon the data and analyses referenced therein, there is a reasonable relationship between the use of the Outdoor Dining Use and Outdoor Merchandise Display implementation fee authorized by this resolution and the type of projects subject to the fee. The fee established herein are adopted and implemented by the Council in reliance on the analyses prepared by the City.

D. The Negative Declaration for the Outdoor Dining Use and Outdoor Merchandise Display project was prepared in conjunction with Public Resources Code Section 21000 et seq., and the State of California Environmental Quality Act (CEQA) Guidelines Section 15000 et seq. All impacts associated with this project have been analyzed in the Negative Declaration prepared for this project, and the Council has independently reviewed and considered the information contained herein, and adopted findings as a responsible agency related to the Negative Declaration for the project prior to making its decision on this resolution. No substantial changes have occurred to the circumstances under which that Negative Declaration was certified and no new information, which was not known and could not have been known at the time that the Negative Declaration was certified as complete, has become available relating to the environmental effects of this project. Therefore, the Negative declaration for the project is adequate for the approval relating to this resolution.

E. After considering the analysis set forth in Exhibit “A” describing the method to determine the fee, the Council approves and adopts the analysis, and incorporates such herein.

F. The analysis set forth in Exhibit “A”, City staff report and the testimony received during a public hearing, establish that there is a reasonable relationship between the fee’s use and the type of development on which the fee is imposed.

Section 2. Definitions:

For the purpose of this Resolution, the terms defined in Chapter 17.900 of the Brentwood Municipal Code are incorporated by reference herein.

Section 3. Fees Imposed:

A. Chapter 17.900 of the Brentwood Municipal Code sets forth the requirement to pay the applicable outdoor dining use or outdoor merchandise display fee, the amounts of which are set forth herein.

B. The Outdoor Dining Use and Outdoor Merchandise Display Fee shall on July 1st of each year be automatically adjusted by an amount equal to the percentage of increase or decrease in the Consumer Price Index for this region, as last computed before July 1, date.

1. As of the Effective Date of this Resolution, the initial Administrative Fee for Outdoor Dining Use and Outdoor Merchandise Display permit application is $734.00 and the annual Outdoor Dining Use and Outdoor Merchandise Display renewal permit fee is $240.00, as described in the attached Exhibit “A”.

2. The Outdoor Dining Use and Outdoor Merchandise Display Fee may also be adjusted if the City updates or modifies the Cost Allocation Plan and conducts a public hearing to implement a new or revised fee or fees based upon such update or modification.

3. The Outdoor Dining Use and Outdoor Merchandise Display Fee shall be determined on the basis of the fee schedule in effect at the time the application is submitted to the City for review. The fee shall be payable in full at the time the application is submitted.

Section 4. Effective Date of Fee:

The fee provided for Chapter 17.900 of the Brentwood Municipal Code shall be effective on February 10, 2008 at least sixty (60) days after the adoption of this Resolution. The effective date of this ordinance shall be concurrent with the effective date of the Outdoor Dining Use and Outdoor Merchandise Display implementing Ordinance.

Section 5. Severability:

All portions of this Resolution are severable. Should any portion of this Resolution be judged to be invalid and unenforceable, the remaining provisions shall be and continue to be fully effective, and the fees shall be fully effective except as to the portion that has been judged to be invalid.

Section 6. Cost Allocation Plan Amendment:

The City of Brentwood 2007-2008 Cost Allocation Plan and Master Fee is hereby amended to add the Outdoor Dining Use and Outdoor Merchandise Display Fee.

PASSED AND ACCEPTED by the City Council of the City of Brentwood at their regular meeting of December 11, 2007, by the following vote:














































EXHIBIT “A”

Outdoor Dining Use and Outdoor Merchandise Display Implementation Administrative Costs

Task Staff Position
Assigned to
Perform Task Hourly
Billing
Rate Hours
Required
To
Perform
Task Administrative
Cost

1. Initial completeness review of the project application information.
Community Dev. Tech.

Administrative Assist. II

Tech. Assist. II

$99.00


$77.66


$118.13

0.5


0.5


0.5

$49.50


$38.83


$59.07

2. Evaluation of the site conditions and preparation of the application.
Assist. Planner

Assoc. Eng.

Plan Check Eng.

Lieutenant (PD)

$119.70

$180.52

$128.41

$186.40
0.5

0.5

0.5

0.5
$59.54

$90.26

$64.21

$93.20

3. Fee Collection
Administrative Assist. II

$77.66
0.5
$38.83

4. Annual renewal and monitoring of the project.









Annual Renewal
Administrative Assist. II

Accounting Assist. I

Accounting Specialist

Building Insp. II

Assist. Planner
$77.66


$69.64


$95.82


$117.96

$119.07
0.5


0.5


0.5


0.5

0.5
$38.83


$34.82


$47.91


$58.98

$59.54

$240.08

TOTAL 6.5 $733.52

 
City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov