Town of Newburgh, NY Outdoor Dining Permits, Temporary

[1]

Editor's Note: This local law also superseded former Ch. 127, Outdoor Dining Permits, Temporary, adopted 7-12-2021 by L.L. No. 2-2021.

It is the purpose and intent of the Town Board in enacting this chapter to allow for the controlled utilization of certain outdoor spaces for dining activities, for a limited period of time, to assist business establishments in recovery from the effects of the COVID-19 pandemic emergency and to afford the opportunity to continue operations in the event restrictions should be re-imposed on maximum indoor capacity if a new surge should occur. In light of the continuing COVID-19 pandemic, and the possibility of restrictions related to social distancing and decreasing maximum capacity of indoor spaces being imposed again in an effort to reduce the risk of spread of the virus, there has been an increased focus on operating outdoors and in the open air to the extent possible. This has come to the Town Board's attention specifically in the context of restaurants, eating and drinking establishments and other uses involving the service of food and drink in the Zoning Code, that such establishments have sought to create outdoor seating in order to serve their patrons in a safe environment and also generate the level of business necessary to remain viable. The Board finds that it is in the public interest to provide an opportunity for such establishments to provide outdoor dining space, on conditions which balance the public interest in maintaining the quality of life in the community, preserving the public health, safety and welfare of the community, and protecting the users, owners and occupants of surrounding properties. This chapter creates a temporary permitting process to allow for such outdoor uses under appropriate circumstances when the establishment can demonstrate that due to a risk to public health, safety and welfare, regardless of whether it is specifically related to the COVID-19 pandemic, the establishment cannot utilize all of its permitted indoor occupancy space to accommodate its designated capacity.

Temporary outdoor dining permits authorized.

(1)

Upon application, the Code Compliance Department is hereby authorized to issue a permit to remain in effect for a period which expires December 31, 2022, to a legally operating restaurant, eating and drinking place, fast food establishment, delicatessen and similar use with approved indoor seating as set forth in the Town of Newburgh Zoning Code (an "establishment"), to provide outdoor seating for patrons on or immediately adjacent to the establishment's private property upon the establishment complying with all of the requirements and conditions set forth in this chapter to the reasonable satisfaction of the Code Compliance Supervisor or his designee. The Code Compliance Supervisor or his designee may grant the permit for a period expiring sooner than December 31, 2022, or require a permit's periodic renewal in his reasonable discretion based upon the circumstances warranting the granting of the permit.

(2)

An application for the temporary outdoor dining permit must be made at least 10 days in advance of the establishment seeking to utilize outdoor dining. If the establishment fails to timely apply for a permit, the establishment must cease any and all operations authorized by the permit if and until a new permit is issued.

(3)

This permit only authorizes outdoor seating, not congregating or standing outside. An open-air tent may be provided to cover the area of an outdoor seating but the tent shall not have sides or flaps such that the outdoor dining area will be enclosed.

Requirements for temporary outdoor dining permit. In its application to the Code Compliance Department for a temporary outdoor dining permit, the establishment shall include the following information:

(1)

Certificate of occupancy or other documentation demonstrating that the establishment is legally operating within the Town if not already on file with the Department.

(2)

A plan showing where the seating will be provided outdoors, which plan must show a potential seating capacity not to exceed the maximum permissible indoor capacity but for the risk to public health, safety and welfare that precludes the establishment from utilizing any or all of the designated indoor space for the service of patrons.

(3)

If seating is going to be provided in a designated parking area, a plan showing vehicular and pedestrian access, internal vehicular circulation and the number of parking spaces available for patrons to demonstrate to the reasonable satisfaction of the Building Inspector, sufficient parking on the site. Seating shall not be proposed for fire lanes or other areas where it would significantly impede emergency responses or the flow of traffic in the judgment of the Town's Code Compliance Department. A permit for a temporary outdoor dining area shall only be authorized where it is determined by the Code Compliance Supervisor that the use will not create a hazard, a sight distance obstruction for motor vehicle operators, nor unduly impede pedestrian traffic.

(4)

A valid certificate of liability insurance.

(5)

Any other information the Code Compliance Supervisor determines to be reasonably necessary.

Waiver. The Code Compliance Supervisor may waive the permit application requirement if the establishment has already been permitted to have outdoor seating in 2021 pursuant to previously established protocols under emergency orders.

Compliance with all other laws except to the extent stated herein, the establishment shall be required to comply with all other applicable federal, state and local laws, rules, regulations and executive orders, including, but not limited to, the Uniform Fire Prevention and Building Code, New York State Department of Health Regulations, New York State Liquor Authority Regulations and the Town Code.

Code Compliance Supervisor authority.

(1)

The Code Compliance Supervisor is authorized to review applications and issue permits only when in his reasonable opinion all applicable conditions and requirements of this chapter have been satisfied.

(2)

Upon the Code Compliance Supervisor's determination that all applicable conditions and requirements of this chapter have been satisfied, the Code Compliance Supervisor may issue the temporary outdoor dining permit without any further review or approval required by any Town official, department and/or board.

(3)

In the event the Code Compliance Supervisor determines that after a permit is issued the establishment is not complying with the conditions and requirements of this chapter or any other applicable rule, regulation, ordinance, local law or statute, the Code Compliance Supervisor may immediately revoke or suspend the temporary outdoor dining permit and the establishment shall cease all activity authorized by the temporary outdoor permit immediately.

(4)

In receiving the temporary outdoor dining permit, the establishment authorizes Code Compliance Supervisor, inspectors and enforcement officers, and any other designated Town official or employee, to enter the property and the interior of the premises in order to ensure compliance with this chapter.

(5)

If periodic renewals are required, issuance of one temporary outdoor dining permit does not require the Code Compliance Department to issue subsequent permits. With each temporary outdoor dining permit application or renewal application, the establishment is required to demonstrate compliance with all conditions and requirements of this chapter.

Liability of permit holder. The person or persons to whom a temporary outdoor dining permit has been issued shall be liable and shall indemnify the Town for any loss, damage, or injury or expense sustained by the Town arising out of any claim or cause of action instituted or commenced by any person or persons arising out of the issuance of such permit or as a direct or indirect result of the operation of such outdoor dining area.

Appeal from denial, revocation, suspension or issuance of permit. Appeals from the issuance, denial, suspension, revocation or other condition of a permit may be taken to the Zoning Board of Appeals by any aggrieved person within 30 days from the date of the issuance, denial, suspension or revocation, by filing an application to the Zoning Board of Appeals.

Maintenance of the premises. The outdoor dining area and adjacent areas shall be periodically cleaned and kept refuse free, as needed. Sufficient containers for trash shall be placed in the outdoor dining area.

Furniture, fixtures, signage. All furniture and fixtures used in conjunction with outdoor dining must be of a temporary nature. No signage shall be permitted to be affixed to any temporary structures. No permanent improvements shall be made without appropriate approvals.

Penalties for offenses. A violation of any provision or requirement of this chapter or a violation of any statement, plan, application, permit or certificate required, issued and/or approved under the provisions of this chapter, or of the terms or conditions contained therein, shall be considered an offense punishable by a fine of not less than $350 nor more than $5,000 or imprisonment for a period not to exceed 15 days, for both such fine and imprisonment. Each and every day that any such violation continues after the specified time to abate shall constitute a separate offense. Additionally, a person who commits, takes part or assists in violation of any provision of this chapter or who maintains a premises on which any such violation shall exist shall be subject to monetary civil penalties not exceeding $350 for the first violation; not less than $350 nor more than $700 for the second violation; and not less than $700 nor more than $1,000 for a third or subsequent violation. Each day's continued violation shall constitute a separate additional violation.