[HISTORY: Adopted by the Village Board of Trustees of the
Village of Montgomery . Amendments noted where applicable.]
The purpose of this chapter is to establish regulations to allow
temporary (seasonal) outdoor dining and to permit same to encroach
into the public right-of-way as an accessory component of an adjacent
primary business which is located on private property. It is intended
that such outdoor dining will not unduly restrict public access or
detract from the character and appearance of the surrounding area.
The following definitions shall apply in the interpretation
of this chapter:
Either a distinct piece of furniture designed to allow one
person to sit upon the same or, when seating is provided on a bench
or other similar structure, then every 20 inches of seating space
shall be considered as the equivalent of one chair or seat for determining
seating capacity.
A temporary use of an adjacent, outside area by a restaurant defined in § 122-2 of the Village Code for the same eating and drinking activities that occur within the establishment. However, nothing herein shall be construed to preclude curbside delivery or contactless service. The outdoor dining area may be located in a public right-of-way pursuant to this chapter.
A designated area on the premises of a restaurant or take-out
food store, but outside the principal building, and where patrons
may sit at tables while consuming food and beverages served by a waiter
or waitress or food and beverages purchased from the restaurant or
take-out food store.
A designated area of a public sidewalk or other Village property
where patrons may sit at tables while consuming food and beverages
ordered from and served by a waiter or waitress or purchased from
an adjacent restaurant or take-out food store.
A.
No person shall operate an outdoor eating area or a sidewalk cafe
area unless a permit has been obtained from the Village of Montgomery.
B.
Applicants shall apply for permit approval in accordance with the
provisions of this chapter. All such applications shall be approved
by the Building Inspector and shall be referred to the Chief of Police
and the Fire Inspector, who shall provide the Building Inspector with
written reports of their opinions and recommendations regarding the
application.
C.
Outdoor dining permits issued pursuant to this chapter shall be valid
during the period of April 1 to November 30 of each year, and all
equipment used for outdoor dining shall be removed by October 5 of
each year.
D.
Applicants shall meet all general ordinance requirements and all other laws, rules, regulations and codes applicable to the proposed activity. Notwithstanding any of the provisions of this Code to the contrary, issuance of a temporary permit granted pursuant to this chapter shall not trigger the site plan approval requirements of Village Code § 122-61.
E.
Notwithstanding the provisions of this Code, granting of this temporary outdoor dining permit does not provide any vested right in outdoor dining. Any permanent or year-round outdoor dining shall be subject to site plan review as required pursuant to the Village Code § 122-61.
F.
Notwithstanding anything contained to the contrary in the Village
Code, any local state or federal law or any other permit issued to
the applicant, no alcoholic beverages may be sold, served or consumed
in any outdoor eating area or sidewalk cafe area for which a permit
is issued under this chapter.
A.
Form. All permits required by this chapter shall be applied for and
obtained from the office of the Building Inspector during normal business
hours. Applications for such permits shall be in a form approved by
the Village Board of Trustees and be accompanied by permit fees in
the amounts established by this chapter.
B.
Content of application. Applicants proposing to establish an outdoor
eating area or sidewalk cafe area must provide satisfactory proof
to the Building Inspector of the following:
(1)
A plan indicating an architectural barrier, such as floral arrangements,
landscaping and/or decorative fencing designed to enclose the eating
area and limit the ability of litter to blow off the premises. The
Building Inspector shall also require such architectural barriers
to litter in any other locations or situations where the Building
Inspector finds that the litter would otherwise be likely to result
from the temporary accessory use. All other outdoor eating areas and
sidewalk cafe areas shall be delineated by a means approved by the
Building Inspector.
(2)
If the applicant is not the owner of the property at which the dining
establishment is situated, the written and notarized consent of the
record owner of the property shall be submitted with the application.
(3)
An applicant proposing to establish an outdoor eating area or sidewalk
cafe area shall submit to the Building Department a layout of the
proposed seating areas, which shall include, but not be limited to,
a depiction of all aisles, routes of ingress and egress; clearances
between tables and between the seating area at the curb; the landscape
plan; an illustration, rendering and/or photograph of all proposed
furniture, umbrellas, signage and other furniture proposed. No picnic-style
tables are permitted.
(4)
Physical design elements, inclusive of, but not limited to, architectural
barriers, tables, seating, planters and litter containers placed within
the outdoor eating area or sidewalk cafe area, shall conform to design
criteria established by the Building Department.
(5)
The Building Inspector shall review each application to ensure that
the proposed operation of the outdoor eating area or sidewalk cafe
area will not interfere with pedestrian or vehicular traffic. Six
feet of unobstructed sidewalk should be provided, with the exact width
being determined by the Building Inspector as he or she deems it to
be appropriate to promote pedestrian or vehicular safety or the visual
harmony of the neighborhood; however, in no event shall the unobstructed
sidewalk be less than six feet in length and three feet in width.
(6)
The Building Inspector shall require each applicant to submit a litter
control plan which shall include, but not be limited to, a description
of the number and location of trash receptacles for the areas and
the frequency with which the tables, surrounding area and adjacent
public and private properties will be policed for litter.
(7)
The Building Inspector shall establish the hours of operation for
each outdoor eating area or sidewalk cafe area which utilizes the
right-of-way. In establishing the hours, the Building Inspector shall
take into consideration the nature of the restaurant or retail food
establishment at issue, the character of the neighborhood adjacent
to the premises, and the character and nature of other uses in the
vicinity of the premises at varying times of day.
(8)
The seating contained in an outdoor eating area, outdoor dining area
or sidewalk cafe area shall not be counted in determining any parking
space requirement for a retail food establishment or restaurant use.
The seating contained in an outdoor eating area, outdoor dining area,
or sidewalk cafe shall be counted as part of the existing seating
limitations for the subject parcel. In no event shall the seating
contained in an outdoor eating area, outdoor dining area, or sidewalk
cafe which utilizes public right-of-way areas result in increased
overall seating with respect to the parcel or use.
(9)
All outdoor eating areas and sidewalk cafe areas must be properly
maintained at all times, including complying with the litter control
plan, complying with all applicable laws, rules, regulations and codes,
properly securing and/or removing tables, chairs and other items during
times of inclement weather and high wind; further, at no time shall
chairs, tables or other items be stacked in the area.
A.
Outdoor dining shall be permitted to encroach into the public right-of-way
pursuant to this chapter.
B.
Notwithstanding any provisions of this Code to the contrary, it is
the express intent of this chapter to recognize that curbside delivery,
off-site and on-site catering, and outdoor dining shall be treated
as customary accessory uses for restaurants and food service establishments.
Any structure containing any restaurant use that has an existing certificate
of occupancy for such use shall be permitted to have outdoor dining
and all accessory uses as set forth hereinabove.
C.
Location.
(1)
Outdoor dining in the public right-of-way shall not extend beyond
the boundaries of the primary business property to which such activity
is subordinate.
(2)
Outdoor dining may not encroach more than six feet into the public
right-of-way.
(3)
Notwithstanding that outdoor dining may extend into the public right-of-way,
a clear pedestrian pathway shall be maintained the full width of the
property. The pathway shall maintain a minimum unobstructed passageway
of six feet as measured from the dining area to any obstruction, including,
but not limited to, light standards, benches, street trees and garbage
receptacles.
(4)
All tables, chairs, umbrellas and other items used in conjunction
with outdoor dining in the public right-of-way shall be removed from
the public right-of-way one hour after the time outdoor dining must
cease at that particular location.
(5)
Insurance. The permittee shall maintain general liability insurance
for the benefit of the Village of a type and amount as determined
appropriate by the Board of Trustees. The permittee must also execute
an indemnification/defense/release/waiver of liability agreement in
favor of the Village, such document to be in a form acceptable to
the Village Attorney.
A.
Development standards.
(1)
Facilities and equipment shall be of a quality and style that is
consistent with any applicable design standards and policies. The
design, quality, materials and colors used for chairs, tables, lighting
and other fixtures shall complement the architectural style and colors
used on the adjacent buildings.
(2)
Lighting will be required for outdoor dining areas where food will
be eaten during the evening hours. All lighting shall be approved
by the Building Inspector and shall be temporary in nature. The lighting
fixtures must be decorative and complement the architectural character
of the building and area. Lights shall not cause direct glare or other
visual obstruction to pedestrians or vehicle drivers along the street
and public walkway and should illuminate only the sidewalk area.
(3)
Portable umbrellas may be permitted, provided they do not obstruct
the public right- of-way or walkway, do not contain advertising and
are taken down and brought inside the establishment at the end of
each business day.
B.
Operational standards.
(1)
The owner and/or tenant of the property is responsible for proper
operation of the outdoor dining area. Outdoor dining shall be continuously
supervised by management or employees. Any behavior that disturbs
customers or passersby on the sidewalk or in the right-of-way will
constitute grounds for revocation of any permit(s) to operate an outdoor
dining area.
(2)
Establishments are required to maintain all outdoor dining areas
and sidewalk cafe areas in a manner which is clean and free of litter
and debris.
(3)
All plans and permits for the outdoor dining area approved by the
Village must be kept on the premises for public inspection at all
times during which the associated establishment is open for business.
(4)
Outdoor dining areas shall be operated in a manner that meets all
requirements of the Orange County Health Department and all other
applicable laws, rules, regulations, ordinances and standards promulgated
by the United States of America, State of New York, County of Orange,
Village of Montgomery, or any body or agency thereof having jurisdiction
over such matters.
(5)
In the event of snowfall of more than one accumulated inch or ice
buildup of any kind, all outdoor dining tables, chairs, umbrellas,
equipment and/or barriers shall be removed from the approved area
and stored inside the establishment until such time as the Village
Building Inspector announces that outdoor dining may resume within
the Village.
A.
Review authority. The Building Inspector shall have administrative
authority to review and approve permits issued under this chapter.
B.
Conditions of approval. The Building Inspector may impose reasonable
conditions of approval to ensure that outdoor dining areas operate
in a manner that is not detrimental to the public health, safety and
welfare, is consistent with all applicable codes, policies and guidelines,
and enhances the image, appearance and vitality of the area in which
the use is located. This includes, but is not limited to, authority
to regulate the design, layout, materials, colors, quality and appearance
of outside dining and display areas; to require security deposits,
insurance and other reasonable financial guarantees and to prescribe
operating terms which the permittee must follow.
C.
Appeal.
(1)
The decision of the Building Inspector may be appealed to the Zoning
Board of Appeals.
(2)
The decision of the Zoning Board of Appeals may be appealed to the
Village Board of Trustees.
(3)
The above decisions must be appealed, in writing, to the Village
Clerk's office within 10 days after the decision is made.
D.
When filing an application for an outdoor dining or display permit
or any related appeals, a uniform nonrefundable fee shall be paid
for the purposes of defraying the costs incidental to the proceedings.
The fees shall be determined by the Village Board of Trustees and
adopted by resolution which may be amended from time to time.
A permit must be obtained from the Village before any outdoor
dining is permitted.
A permit for an outdoor dining area may be approved for the
period of April 1 to November 30 of each year. The Village may temporarily
suspend the permit upon seven days' notice because of anticipated
or actual conflicts in the use of sidewalk areas due to street repairs,
parades, festivals and other similar events. The Village may create
a renewal application for outdoor dining permits, which shall be in
a form approved by the Board of Trustees and be accompanied by permit
fees in the amounts established by this chapter.
A.
Penalties. Each violation of the provisions of this chapter shall
constitute a separate offense punishable by a fine not to exceed $500
for the first offense and $1,000 for each subsequent offense. Each
day that a violation exists shall constitute a separate violation.
In addition, the Village may seek civil remedies for any violation,
including, but not limited to, injunctive relief and the recovery
of reasonable costs for the enforcement and correction of the violation.
B.
Revocation. Violation of any of the standards in this Code or any
of the conditions imposed by the Building Inspector under shall be
grounds for revocation of the permit to operate an outdoor dining
area. Such revocation shall require a majority vote of the Zoning
Board of Appeals at a regular meeting to which the permittee has been
given at least 10 calendar days' notice. The decision of the
Zoning Board of Appeals may be appealed to the Village Board of Trustees.
