[HISTORY: Adopted by the City Council of the City of Cape
May 5-2-2017 by Ordinance No. 305-2017. Amendments noted where applicable.]
[Ord. No. 305-2017]
The City Council has determined that the establishment of regulations
for outdoor seating and dining will foster a pleasant and distinctive
ambience within the City and that the proper regulation of such activity
is required in the interests of the health, safety and welfare of
the City's residents and visitors.
[Ord. No. 305-2017]
The following words and phrases, whenever used in this chapter,
shall be construed as defined in this chapter:
A.
DINING TABLE — Any surface from which individuals eat, whether
permanent or moveable, and with a minimum height of 30 inches and
a minimum surface diameter of 36 inches.
B.
PERSON — Any individual, partnership, corporation, association
or other entity.
C.
RETAIL FOOD ESTABLISHMENT — An establishment on private property
that serves food or beverage products for on site consumption.
D.
OUTDOOR SEAT — For purposes of this section shall mean an outdoor seat at a retail food establishment where food or drinks will be consumed, but shall not include pool seats that are limited primarily to hotel and motel guests; seats used as a general hotel or restaurant seating areas, such as waiting areas and lobbies; and seats (without dining tables) located on the verandas and porches of any restaurant, hotel, motel, inn or tourist guest house. Outdoor seats shall also not include any seats set up for special events with all necessary approvals. However, such special events that occur outside shall be governed by all other sections of the City Code, including the outdoor tent provisions contained in Chapter 463.
E.
SEAT — A bench, chair or any other item of furniture in which
someone sits. A seat may be an individual fixture (i.e. chair or stool)
or a structure on which several people may sit (i.e. bench, booth,
picnic table, couch). For any structure that can accommodate more
than one person, it shall be deemed to be one seat for each full 30
inches of seating space (i.e. a bench that is 90 inches long shall
equal three seats).
[Ord. No. 305-2017; amended 5-3-2022 by Ord. No. 461-2022]
This subsection applies to all food service establishments in
zoning district where outdoor dining is permitted or where a food
service establishment is a preexisting use. This section does not
apply to any food service establishment that has previously received
site plan approval for outdoor dining. Those establishments may continue
to operate without the necessity of additional permitting under this
section. Furthermore, this section shall not apply to food service
establishments within the Washington Street Mall business improvement
district.
No person to whom this section applies shall provide outdoor
seating within the City without having a mercantile license and without
having first obtained an outdoor seating license in accordance with
the requirements of this chapter. The Zoning Officer shall be responsible
for reviewing and determining whether an applicant qualifies for the
issuance of an outdoor seating license pursuant to this chapter and
shall make such determination in consultation with the Planning Board
Engineer and City Attorney and shall seek input from the subcode officials,
Fire Department, Police Department and such other departments as necessary
to ensure full compliance with the terms and conditions of this chapter.
The license shall then be issued by the City Clerk following the Zoning
Officer's final determination. The Zoning Officer shall make a determination
within 30 days from the submission of a complete application containing
all of the items required under this chapter. If not approved within
such 30-day period, the application will be deemed denied unless the
applicant agrees to an extension of the time required for the Zoning
Officer to make a final determination.
Once approval has been received, no further approval is needed
unless there is a change in the outdoor seating plan or a development
plan is proposed that requires a full site plan review of the property
where the outdoor seating is located. Any new site plan application
shall be required to include the existing or proposed outdoor seating
plan. A retail food establishment that has obtained site plan approval
for its outdoor seating shall not have to submit an application for
an outdoor seating license.
[Ord. No. 305-2017]
All retail food establishments that provide outdoor seating
shall pay the following fees:
A.
The applicant shall pay a one-time application fee of $250.00 and
an escrow payment of $500.00 for the review and processing of the
initial application for outdoor seating. Furthermore, the applicant
shall pay an annual fee of $10.00 for the processing of each annual
outdoor seating license. Such fees shall be paid with the mercantile
license fee.
[Ord. No. 305-2017]
All applications for an outdoor seating license shall be submitted
currently with an application for a mercantile license and shall include
the following:
A.
Each applicant for a outdoor seating license shall submit and file
an application with the Zoning Officer, together with two copies of
an outdoor seating plan (as outlined below), and the appropriate fee.
The application shall set forth:
(1)
The name, address, phone number, and email address of the applicant;
(2)
The name, address, phone number, and email address of the owner of
the primary building (if other than the applicant);
(3)
The name address, phone number, and email address of the person who
has prepared the outdoor seating plan; and
(4)
The written authorization and approval of the owner of the primary
building (if other than the applicant).
(5)
A survey of the property showing all existing conditions.
B.
The outdoor seating plan shall be drawn to scale but does not require
professional seals. The scaled drawing of the proposed design and
location of the outdoor seating shall include setbacks, all outdoor
structures, equipment and apparatus to be used in connection with
its operation, including tables, chairs, planters (applicant to provide
“cut sheets” depicting the material and style of materials
to be used), bus trays, equipment and apparatus, and the location
of any fire hydrant or Fire Department Connection ("FDC"), utility
pole, parking meter, or other permanent fixture between the primary
building and the curb, including a clear indication of the presence
of the required pedestrian passageway. If the outdoor seating is located
on private property adjacent to the sidewalk, the plan shall demonstrate
that the pedestrian traffic will in no way be impeded by showing the
dimensions between all seats should they be occupied and the outermost
edge of the sidewalk.
[Amended 5-3-2022 by Ord. No. 461-2022]
C.
A statement of the seating capacity of the proposed outdoor seating
and of the existing retail food establishment actually operated by
the applicant in or outside of the primary building.
D.
The hours of operation of retail food establishment.
[Ord. No. 305-2017]
All outdoor seating licenses shall run concurrently with the
mercantile license issued for that year. Licenses may be renewed annually
by the filing of an application in accordance with the provisions
of this chapter.
[Ord. No. 305-2017]
Outdoor seating authorized and operating pursuant to this chapter
shall be subject to the following regulations:
A.
The outdoor seating shall be operated and maintained in accordance
with the outdoor seating plan as finally approved, and by the same
person who operated and maintains the abutting retail food establishment.
B.
The outdoor seating plan shall be so arranged that if all seats are
occupied, there is no less than five feet of unobstructed walkway
for pedestrian passage. The outdoor seating plan shall allow for adequate
ingress and egress for all outdoor seating areas as determined by
the Fire Department and Construction Official. This chapter contemplates
seating in connection with food and beverage service. No outdoor bars
are permitted or contemplated by this chapter.
[Amended 5-3-2022 by Ord. No. 461-2022]
C.
The outdoor seating areas shall comply with all side yard and rear
yard setback requirements set forth in Chapter 525- Zoning for structures
that already lawfully existing in the setback area as an approved
conforming or pre-existing nonconforming condition, such as a porch,
patio, or other permanent structure.
D.
The seating layout and number of seats shall comply with the requirements
of the International Building Code 2015, New Jersey Edition, or any
subsequent building code adopted in New Jersey, based on the review
and approval of the City Construction Official.
E.
The placement of furniture, apparatus, decoration or appurtenance
used in connection with the operation of the outdoor seating in relation
to any fire hydrant or FDC shall be prohibited.
F.
No furniture, apparatus, decoration or appurtenance used in connection
with the operation of the outdoor seating shall be located in such
a way as to impede the safety and speedy ingress and egress to or
from any building or structure. No furniture or other appurtenances
shall be chained to poles or other structures in view of the streetscape.
[Amended 5-3-2022 by Ord. No. 461-2022]
G.
No permanent lighting, umbrellas with signage except the name of
the licensed business, or canopies not already existing may be placed
in the outdoor seating area.
[Amended 5-3-2022 by Ord. No. 461-2022]
H.
No furniture, apparatus, decoration, structure, or appurtenance,
including but not limited to an HVAC system, used in connection with
the operation of the outdoor seating shall be located in or project
or protrude into the required pedestrian passageway or any parking
lot or on-site parking areas. Any heating or AC apparatuses servicing
the outdoor dining area shall be subject to approval of the Bureau
of Fire Prevention and positioned so as to preserve five feet of pedestrian
egress. No outdoor cooking facilities are permitted by this chapter.
No additional signage is permitted by this chapter, including street
or “chalk” signs.
[Amended 5-3-2022 by Ord. No. 461-2022]
I.
The outdoor area utilized by the outdoor seating shall be kept clean
and free of litter and shall be washed as frequently as needed to
maintain a clean and sanitary area for the consumption of food and
beverages.
J.
Noise shall be kept at such a level as to comply in all respects with the provisions of applicable ordinances of the City, including hours of outdoor music pursuant to City Code § 134-5E. The last seating for any outdoor dining area shall be no later than 9:30 p.m. No public address system shall be utilized.
[Amended 5-3-2022 by Ord. No. 461-2022]
K.
Outdoor seating as permitted under this chapter shall not increase
the required parking spaces for any retail food establishment. This
chapter provides for allocation of existing seating, not the creation
of new or additional seating. No change in grading or drainage shall
be permitted by this chapter.
[Amended 5-3-2022 by Ord. No. 461-2022]
L.
The licensee shall comply with all other ordinances of the City and
the Cape May County Board of Health.
[Amended 5-3-2022 by Ord. No. 461-2022]
M.
The licensee shall comply with all State and local alcoholic beverage
laws, specifically noting areas where alcoholic beverages may be consumed
on the premises and in enforcing that no alcoholic beverages may be
removed from the approved licensed areas. The sale or service of alcoholic
beverages in these locations may be permitted, subject to compliance
with all applicable ABC regulations and statutes, including extension
of premises applications, and subject to the review and approval of
the City Clerk and Chief of Police.
[Amended 5-3-2022 by Ord. No. 461-2022]
N.
Umbrellas
are permitted, subject to the following:
[Added 5-3-2022 by Ord. No. 461-2022
(1)
The
number of umbrellas shall be no more than the number of tables permitted.
(2)
The
size of the umbrella shall allow at least a vertical clearance under the
umbrella of six feet eight inches. The width of the umbrella and its
placement shall be such as to leave a five-foot-wide unobstructed
path of sidewalk parallel to the curb across the entire frontage of
the property in question.
(3)
All
umbrellas shall be vented and properly secured with pins or bolts
through the table framework, with weighted umbrella stands of at least
20 pounds directly beneath the table to prevent toppling in high winds.
O.
This section
is intended to provide for a streamlined process to permit outdoor
seating not impacting parking, circulation or other issues implicating
site plan review. Applicants are not permitted to eliminate parking
areas (public or private) in connection with an outdoor seating permit
pursuant to this section. Nothing herein shall prevent any applicant
from seeking conventional site plan or other appropriate land use
approval.
[Added 5-3-2022 by Ord. No. 461-2022]
P.
Temporary
use of right-of-way in certain areas. Food service establishments,
not otherwise subject to the “patio permit” process in
the Washington Street Mall pursuant to Section 324, may request seating
in a sidewalk right of way provided (i) there is no substantial detriment
to public health or safety, and (ii) a minimum five-foot pedestrian
walkway is maintained and provided for the general public, subject
to applicable ADA requirements. Tables and seats approved to be located
within a City right-of-way must be removed from the right-of-way and
stored on site on a daily basis by 12:00 midnight. Tables and seats
approved to be located on site in areas privately owned shall be permitted
to remain in said locations.
[Added 5-3-2022 by Ord. No. 461-2022]
(1)
Licensing
agreement, indemnification, and hold harmless. Applicants proposing
to relocate existing tables or seats in a City right-of-way pursuant
to this section shall enter into a licensing agreement with the City,
in a form to be determined by the City. The agreement shall require
the applicant to indemnify and hold harmless the City of Cape May,
its employees, agents, and/or officers from all claims, losses, liens,
expenses, suits and attorney's fees arising out of the placement,
operation, and maintenance of the outdoor dining area. Applicants
must name the City of Cape May as an additional insured under the
applicant's general liability insurance, bodily injury, property damage,
and personal injury insurance policies, required to have a minimum
limit of $1,000,000, and provide proof of same to the City Clerk,
and proof that said policies have been amended to reflect coverage
for the proposed outdoor dining area.
(2)
Use
of any right-of-way will be subject to approval by City Council confirming
the conditions set forth in this subsection and a right-of-way use
fee calculated as follows: square footage of reserved sidewalk area
(x number of months of operation) (x $1.00 per SF).
[Ord. No. 305-2017]
Any person who violates this chapter or fails to comply with any of its requirements shall upon conviction thereof be subject to the fines and penalties set forth in Chapter 1, Article III for each violation. In addition, any person who violates this chapter may be subject to all penalties applicable to licensees under Chapter 310, Section 9, including, but not limited to, revocation of said license. Nothing herein contained shall prevent the City of Cape May, from taking such other lawful action as is necessary to prevent or remedy any violation.
[Ord. No. 305-2017; amended 5-3-2022 by Ord. No. 461-2022]
The City of Cape May reserves its right to amend, terminate
or repeal this chapter, and accordingly no property rights are granted
to any person or entity by virtue of this chapter. The licenses herein
are nontransferable. The licenses contemplated herein are a privilege
and not a contract or property. The issuance or renewal of a license
rests in the sound discretion of the City of Cape May and the issuing
authority.
