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CITY COUNCIL AGENDA ITEM NO. 16

Meeting Date: January 8, 2008

Subject/Title: Second reading and adoption of Ordinance No. 853 for 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.

Prepared by: Jeff Zilm, Senior Planner

Submitted by: Howard Sword, Community Development Director
____________________________________________________________________________

RECOMMENDATION
Waive the second reading and adopt Ordinance No. 853.

PREVIOUS ACTION
At its meeting of December 11, 2007, the City Council introduced and waived the first reading of Ordinance No. 853. This ordinance adoption amends Chapter 9.36 of the Brentwood Municipal Code to allow consumption of alcoholic beverages in the public right-of-way and deletes Chapter 17.900 in its entirety and replaces 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.

FISCAL IMPACT
No commitment of funding is required. The implementing ordinance establishes appropriate fees for the review and approval of outdoor dining uses and outdoor merchandise displays.

Attachments:
1. Ordinance No. 853

CITY COUNCIL ORDINANCE NO. 853

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 a public hearing on November 6, 2007, to consider 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

9.36.010 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.

9.36.020 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 five hundred dollars, or by imprisonment in the county jail of Contra Costa County for not more than six months, or by such fine and imprisonment.

9.36.030 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 (City Council Resolution No. 2007-294) 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 Attorney or his/her designee, 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:

And was adopted at a regular meeting of the Brentwood City Council on the 8th day of January, 2008, by the following vote:
 
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