[1]
Editor's Note: Prior amendments included Ord. Nos. 99-25R;
05-10R; 06-11R; 98-09R; and 98-12R.
The Mayor and Council have determined that restaurants and retail
uses located in the Borough in certain permitted zones shall be allowed
to maintain sidewalk use in accordance with the requirements set forth
hereafter.
As used in this article, the following terms shall have the
meanings indicated:
A written plan setting forth the following information, and
such other additional information, if any, as may be subsequently
requested by the Borough:
A description of the principal building, limited to ground floor
tenant frontage and a description of all properties immediately adjacent
to such building.
A description of the proposed design and location of the sidewalk
cafe/retail use, its dimensions and all temporary structures, equipment,
and apparatus to be used in connection with its operation, including
tables, temporary fences and barriers, planters, serving carts, chairs,
awnings, umbrellas, lighting and electrical outlets (if any).
A statement of the seating capacity of the proposed sidewalk
cafe and of the existing restaurant actually operated by the applicant
in the principal building.
A diagram demonstrating that pedestrian traffic along the sidewalk
on which the sidewalk cafe and retail use is proposed to be located
will in no way be impeded; and that there shall be at least six feet
between the edge of the sidewalk closest to the curb and/or any traffic
lanes (excluding therefrom any unpaved area) and the area where the
sidewalk cafe/retail use or any appurtenances thereto are to be located,
and including a diagram of the sidewalk cafe/retail use itself with
all appurtenances.
The GC, CC and Block 64 Zones, all as defined in Chapter 184, Land Use, of the Borough Code.
Any individual, partnership, corporation, association or
other entity.
The building which the principal, side or rear facade fronts
on the sidewalk where the sidewalk cafe/retail use is located, or
is proposed to be located.
The face of the principal building facing the street right-of-way.
An establishment actually located within the principal building,
the primary activity of which is the preparation of food for consumption
by the public on its premises and where the food is to be consumed
on, and with utensils of permanent, nondisposable, durable and reusable
material, and shall include, by way of example, a restaurant, hotel,
coffee shop, tearoom, dining room cafeteria, luncheonette, soda fountain,
sandwich shop and the like.
The paved surface provided for the exclusive use of pedestrians
and situated between and extending from any building line to the curb
of any street, parking aisle and/or imaginary curbline if not fronting
on a street (excluding therefrom any unpaved area).
A restaurant as defined herein which also is characterized
by the following:
Serving food to be consumed by the public at tables located
within that more or less rectangular portion of the sidewalk which
lies within the area bounded by the public street, parking aisle and/or
imaginary curbline if not fronting on a street, the principal, side
and/or rear facade and the imaginary perpendicular lines running from
the outer edge of such facade to the public street, parking aisle
and/or imaginary curbline if not fronting on a street.
Containing readily removable tables, chairs, temporary railings
and/or planters.
Unenclosed by fixed walls or ceilings, fences, except for retractable
awnings, removable barriers, umbrellas or other nonpermanent enclosures.
No person shall operate a sidewalk cafe/retail use within the
Borough without first obtaining a sidewalk cafe/retail use license
and satisfying all of the requirements of this article. The license
shall be initially issued by the Mayor and Council and may contain
conditions. Renewal of the license initially issued by the Mayor and
Council may be by the Borough Clerk.
A.
Each applicant for a sidewalk cafe/retail use license shall submit
and file an application with the Borough Clerk, together with three
copies of a development plan and the required fee. The application
shall set forth and/or attach:
(1)
The name and address of the applicant.
(2)
The name and address of the owner of the principal building (if other
than the applicant).
(3)
The name and address of the person who has prepared the development
plan; and shall be accompanied by the written authorization and approval
of the owner of the principal building (if other than the applicant).
(4)
Three copies of the development plan.
B.
The application, including the development plan, shall be referred
by the Borough Administrator to the Zoning Officer, who shall thereupon
recommend approval, disapproval or modification of the plan within
15 business days following its submission. The Borough Administrator
or the Zoning Officer may also refer the development plan to the Chiefs
of Police and/or Fire, the Borough Engineer, the Health Officer and/or
the Construction Official for such persons' review and recommendation.
Upon receipt of the recommendation from the Zoning Officer, the application
and recommendation shall be forwarded by the Borough Administrator
to the Mayor and Council.
No sidewalk cafe/retail use license shall be issued unless the
applicant shall have first filed with the Borough Administrator a
copy of an insurance policy or certificate of insurance, issued by
a company duly authorized to transact business under the laws of this
state, providing for the payment in the aggregate of not less than
$1,000,000 to satisfy any and all claims for damage by reason of bodily
injuries to, or the death of, any person as a direct or indirect result
of the operation of the sidewalk cafe/retail use or for injury to
any person occurring on the premises occupied by such cafe; and further
providing for the payment of not less than $25,000 to satisfy any
claims for property damage occurring as a direct or indirect result
of the operation of such cafe, and naming the Borough as an additional
insured.
No sidewalk cafe/retail use license shall be issued unless the
applicant shall have executed and filed with the Borough Administrator
an indemnification agreement in a form approved by the Borough Attorney,
pursuant to which the licensee, in further consideration of the issuance
of the license, agrees to forever defend, protect, indemnify and save
harmless Fanwood, its elected officials, officers, agents and/or employees,
from, and against, any and all claims, causes of action, injuries,
losses, damages, expenses, fees and costs, including attorney's
fees, arising out of, or which may arise out of, the operation of
such sidewalk cafe.
No sidewalk cafe/retail use license shall be issued unless the
applicant shall have executed and filed with the Borough Administrator
a maintenance agreement in a form approved by the Borough Attorney,
pursuant to which the license, in further consideration of the issuance
of a license, agrees, at the option of the Borough, to either repair
at the licensee's sole cost and expense any damage caused to
the sidewalk by the operation of the cafe or to reimburse the Borough
in full for all costs and expenses incurred by it in making any such
repairs and any attorney's fees or engineering fees incurred
as a result thereof and/or relating thereto.
The initial annual application fee for a sidewalk cafe/retail
use license shall be $100 per application and shall be paid prior
to any license or renewal thereof being issued. The application fee
for renewal of the license, assuming the applicant has satisfied all
of the requirements of this article, shall be $100 per application.
If more than one or more years has elapsed since the last license
has expired, or a new applicant submits the application even if for
the same property, the application will be deemed an initial application.
All sidewalk cafe/retail use licenses shall be issued for a seven-month period commencing April 1 and ending October 31 of a particular year. Licenses may be renewed annually by the filing of a renewal application pursuant to § 259-38 with the Borough Administrator in accordance with the provisions of this article.
A sidewalk cafe authorized and operating pursuant to this article
shall comply with all of the following regulations and specifications:
A.
The cafe/retail use shall be operated and maintained in accordance
with the development plan and application as finally approved.
B.
No furniture, apparatus, decoration or appurtenance used in connection
with the operation of the sidewalk cafe shall be placed within 50
feet of any fire hydrant, plug or standpipe without the written authorization
of the Chief of the Fire Department or the Chief's designee.
C.
No furniture, apparatus, decoration or appurtenance used in connection
with the operation of the sidewalk cafe shall be located in such a
way as to impede the safe and speedy ingress and egress to or from
any building, structure or crosswalk. At least six feet of unobstructed
walkway shall be provided for access from any door or opening on the
principal, side and/or rear facade.
D.
No furniture, apparatus, decoration or appurtenance used in connection
with the operation of the sidewalk cafe/retail use shall be located
in such a way that less than six feet of paved sidewalk remains for
the exclusive use of pedestrians and/or motor vehicles in the case
of side and/or rear locations (the required passageway), nor shall
any such furniture, apparatus, decoration or appurtenance project
or protrude into, on or above the required passageway. All sidewalk
cafes/retail uses shall have portable barriers or planters not less
than three feet nor more than four feet in height which shall be placed
around the sidewalk cafe area on the sidewalk to define the cafe area
and the required passageway.
E.
All dishes, utensils, containers, tablecloths, cutlery and other
items used in the operation or decoration of the sidewalk cafe shall
be made of nondisposable and reusable materials. The furniture to
be used in the operation of the sidewalk cafe shall be made of durable
material, such as sturdy vinyl/plastic, wrought iron or wood. Tables
shall have a diameter not larger than 24 inches.
F.
The sidewalk area utilized by the cafe shall be kept clean and free
of litter. No food items shall be left on the tables for any unreasonable
time period unless they are being presently consumed. Surfaces of
the tables shall be cleaned as soon as patrons are finished consuming
food and/or beverages. Sidewalks shall be cleaned daily and trash
receptacles, with lids, shall be provided as required, within close
proximity of the sidewalk area and approved from time to time by the
Borough.
G.
Noise shall be kept at such levels as to comply in all respects with
the provisions of applicable state, county and local law.
H.
Sidewalk cafes/retail use shall be permitted to operate only within
the permitted zones and only from 7:00 a.m. until 11:00 p.m. during
the months of April to October, inclusive.
I.
Within 30 minutes after the closing of the cafe/retail use, the operator
shall have all furniture, apparatus, decorations, barriers, planters
and appurtenances and any other items used in connection with the
operation of such cafe/retail use removed from the sidewalk. All such
materials shall be stored in a safe and secure interior location.
J.
No advertisements or signs of any kind shall be placed on any furniture,
fencing or other appurtenances related to the sidewalk cafe.
K.
The operator shall comply with all the requirements of N.J.A.C. 8:24-1.1
et seq. (also known as Chapter XII of the New Jersey State Sanitary
Code) and N.J.S.A. 24:15-1 et seq.
L.
The cafe/retail use shall be operated and maintained by the same
person who operates and maintains the related use of which the cafe/retail
use is a part and an extension.
M.
The operator shall fully comply with all provisions of this Code.
A.
The sidewalk area upon which a cafe has been authorized to operate
shall constitute premises duly licensed for the sale and consumption
of alcoholic beverages, provided that the related restaurant of which
the cafe is a part is so licensed and that specific approval has been
obtained from the local Alcoholic Beverage Commission for an extension
of the alcoholic beverage consumption license to include the sidewalk
cafe area. Such approval shall be separate from, and must be obtained
in addition to, the license to operate a sidewalk cafe pursuant to
this article.
B.
Patrons of a cafe that does not have a license to sell alcoholic
beverages in the sidewalk area upon which the cafe has been authorized
to operate pursuant to this article may be allowed, at the licensee's
option, to carry within and consume wine or beer in such sidewalk
cafe area.
A.
Upon a determination by the officers or employees of the Borough
charged with enforcing the provisions of this article that a licensee
has violated one or more of the provisions of this article, such officer
or employee shall give written notice to the licensee to correct such
violation within 24 hours of receipt of such notice by the licensee.
In the event that the licensee fails or refuses to correct such violation
within such period, the licensee's sidewalk cafe/retail use license
shall thereupon automatically be revoked.
B.
Upon revocation of such license, the licensee, upon written request,
shall be entitled to a hearing before the Mayor and Council within
20 business days of the date of its request.
Any person who shall violate any provision of this article shall,
upon conviction thereof, be punished by a fine not exceeding $2,000,
or by imprisonment for a term not exceeding 90 days, and/or by a period
of community service not exceeding 90 days.
