Where an outdoor dining area is permitted the following regulations shall apply. In the event, however, of any express conflict with a state statute or regulation governing the same, the state statute or regulation shall control.
a.
License Required.
1.
Outdoor dining areas are prohibited, except as same may be expressly permitted and authorized under applicable Zoning Regulations. Outdoor dining areas shall require an Outdoor Dining Area License and fee.
2.
An application for an Outdoor Dining Area License shall be made annually to the Borough on a form so provided by the Clerk and made available upon request, and in accordance with the requirements this chapter herein.
3.
Any license for an outdoor dining area and/or any license extension issued pursuant to the terms of this chapter shall be renewed annually.
4.
The licensee shall be permitted to operate a licensed outdoor dining area throughout the year.
b.
The fee for an annual Outdoor Dining Area License shall be $250, with the initial fee to be submitted with said application.
c.
Rules and Regulations of Operation.
1.
An outdoor dining area shall comply with all Borough, county and state health and safety regulations.
2.
An outdoor dining area shall be located on the same lot as the principal use and shall not operate as a standalone use.
3.
The total outdoor dining area(s) space associated with a particular principal use shall be established by the Planning Board and shall not exceed 30% of the gross indoor dining area of the particular associated principal use at issue.
4.
Seating capacity for the outdoor dining area shall be established by the Planning Board and shall not exceed 50% of the indoor seating capacity of the particular associated principal use at issue unless otherwise approved by the Planning Board.
5.
Noise shall be kept at a level to comply with all provisions of the Borough Ordinance relating to noise as well as all applicable state statutes. Reasonable measure shall be taken to prevent excessive noise including the use of sound-absorbing materials and strategic seating arrangements.
6.
Outdoor dining shall be permitted between 8:00 a.m. and 10:00 p.m. Sunday through Thursday, and 8:00 a.m. and 11:00 p.m. Friday and Saturday.
7.
Outdoor dining area lighting shall be established by the Planning Board and be shielded and downward-directed to minimize glare on adjacent properties and roadways.
8.
Outdoor dining areas shall be clearly defined using barriers, planters, railings, or similar enclosures.
9.
Defined outdoor dining areas shall not be located within or encroach upon public property, or obstruct pedestrian walkways, fire lanes, ADA-accessible pathways, or required parking areas.
10.
No temporary fixture used in connection with the use and operation of the outdoor dining area shall be located in such a way as to impede the safe and speedy ingress and egress to or from any building or structure.
11.
Overhead coverings, such as retractable awnings and umbrellas, are permitted. All coverings shall be wholly contained within the designated area of the allowed outdoor dining area so as not to interfere with the required pedestrian passageway and be closed and/or removed from the outdoor dining area when the outdoor dining area is not in operation. Overhead coverings shall be anchored securely against wind. Permanent awnings are subject to approval of the Code Enforcement Officer and Construction Code Official.
12.
Outdoor dining areas shall be maintained in a clean and orderly condition at all times:
13.
All temporary fixtures and permanent canopies, awnings and porch roofs used in connection with an outdoor dining area shall be clean and neat and maintained in good repair at all times.
14.
No outdoor dining area shall be located within three feet of a fire hydrant or a building fire department connection; or within four feet of an adjacent building entrance door.
15.
Tables, benches, and chairs shall be commercial grade wood or metal, and shall be easily removable.
16.
All temporary fixtures shall be fire-retardant or manufactured of fire-resistant material.
17.
Moving, fluttering and flapping pennants, flags, balloons and similar decorations are prohibited.
18.
Portable heaters may be used only if the Fire Marshal issues written permission, in which case a copy of the Fire Marshal's written approval shall be filed with the Outdoor Dining Area License application.
d.
Outdoor Dining Area License Application. An Outdoor Dining Area License application shall be required and shall include the following minimum requirements:
1.
The name, address, email and twenty-four-hour phone number of the applicant. The applicant must be the owner or registered agent of a retail food establishment or such other principal use to which the outdoor dining area is accessory as specifically permitted pursuant to the Zoning Regulations.
2.
Non-refundable application fee as provided above.
3.
A diagram of the outdoor dining area shall be drawn to scale and include all dimensions of any and all items located or proposed to be located within the outdoor dining area, including but not limited to, the location of the outdoor dining area relative to the principal use. The plan shall provide a clear description of the pedestrian passageways. The diagram may, but is not required to be prepared by professional engineer, surveyor, or architect.
4.
Photographs of the furnishings in place, or a suitable facsimile of the same, may be submitted to further demonstrate the design and location.
5.
A certificate of insurance that evidences that the applicant has procured and maintains such insurance that complies with the following requirements:
(a)
The licensee shall furnish the Borough with a certificate of insurance as evidence that it has procured and maintains such commercial liability, automobile liability, workers' compensation and employer's liability insurance coverage to cover injuries and damages resulting from the licensee's operation of the outdoor dining use and outdoor dining area. The minimum limits shall be as follows:
(1)
Workers' compensation and employer's liability insurance in accordance with the requirements of the General Laws of New Jersey and all other applicable laws and regulations.
(2)
Commercial general liability insurance including contractor's liability and contractual liability insurance with a minimum combined single limit of $1,000,000 for bodily injury and/or property damage per accident per occurrence. All liability coverage shall be on an occurrence basis.
(3)
Comprehensive automobile liability insurance, covering the licensee for claims arising from all owned, hired and non-owned vehicles with a combined single limit not less than $1,000,000 for bodily injury and/or property damage each accident.
(b)
The Borough and its officers, employees and agents shall be listed as additional insured on such policies except workers' compensation.
(c)
By accepting an Outdoor Dining Area License, the licensee expressly agrees to defend, indemnify and hold harmless the Borough of West Long Branch, its officers, employees and agents from any and all claims, suits, actions, damages or costs, whether for personal injury, property damage or other liability, arising out of or in any way connected with the licensee's operation and use of the outdoor dining use and outdoor dining area.
(d)
The licensee's certificate(s) of insurance shall evidence the coverage required above and shall include coverage for the indemnification language and shall be updated as necessary to ensure proof of compliance. The certificate(s) shall evidence that the Borough of West Long Branch shall be given at least 10 days' prior written notice of any intention not to renew any of the insurance required herein or of any intention to cancel or materially change such coverage, or any reduction in such insurance coverage.
6.
A written description of the seating capacity of the proposed outdoor dining area and of the retail food establishment (or such other principal use to which the outdoor dining area may be established as an accessory pursuant to Zoning Regulations) operated or to be operated by the applicant within the principal building.
7.
A written description of the applicant's program for the control, removal and storage of litter, garbage and other refuse, control of pests, and the cleaning of temporary fixtures and the outdoor dining area, including a description of the establishment's existing waste collection program.
8.
When applicable, proof of compliance with New Jersey State Alcoholic Beverage Control rules and regulations governing extension of premises for the sale, service and consumption of alcoholic beverages.
e.
Receipt, Review and Approval of Application.
1.
The Borough Clerk or said official's designee shall be the "licensing authority" under this chapter.
2.
Upon receipt of an application, the licensing authority shall review the application for completeness, subject to the requirements set forth in this chapter and any other applicable laws. If the application is incomplete or otherwise fails to comply with the minimum application requirements, then the licensing authority shall advise the applicant and provide said applicant with the opportunity to correct same. If the applicant fails to correct same within the time provided by the licensing authority, then the application shall be deemed incomplete and returned to the applicant without any further action by the licensing authority.
3.
Once the application is deemed complete, the licensing authority shall distribute the application to the Chief of Police, Fire Marshal, Health Officer, Clerk, and Administrator for inspection and written comments and/or recommendations.
4.
The licensing authority shall issue a license or a denial within 15 days of designation of the application as complete. The licensing authority may deny a license based on current outstanding violations of any other health, safety, fire, use, or zoning regulation, or upon any applicable law or ordinance permitting the denial of a license that is not otherwise directly superseded by this chapter. Neither an application nor license issued under this chapter shall be considered a variance under the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.).
f.
License Appeal. Any person who has been denied an Outdoor Dining Area License or whose Outdoor Dining Area License has been revoked shall have the right to appeal said denial or revocation to the Borough Administrator. The appeal shall be taken by filing with the Borough Clerk, within 10 days after the notice of the action complained of has been served personally upon the licensee or mailed, postage prepaid, to the licensee at the address given by the licensee in making application under herein, a written statement setting forth fully the grounds for appeal. The Borough Clerk shall set a time and place of hearing for the appeal, at which time the Borough Administrator shall conduct a hearing and affirm, modify or reverse the action appealed from.
g.
Notice of Violation; Failure to Comply.
1.
The Code Enforcement Officer, Chief of Police, and Fire Marshal shall be authorized to enforce this chapter.
2.
In the event any of the enforcing officers designated above determine that a licensee has violated the terms of its license or provisions of this chapter, the Borough Clerk shall provide written notice of same. Said notice shall advise licensee that it shall correct such violation(s) within 24 hours of the receipt of such notice by the licensee. In the event the licensee fails or refuses to correct the violation(s) within such period, the enforcing officer may revoke the license. Notice of revocation shall be communicated to the licensee in writing.
h.
Terms and Conditions of License.
1.
A licensee shall only be permitted to utilize the licensed outdoor dining area in strict accordance with the license and the requirements of this chapter.
2.
Outdoor dining area licenses shall expire on December 31 each year and may be renewable each year.
3.
The licensing authority and Chief of Police, Construction Department, Code Enforcement Officer and Fire Marshall, shall each have the authority to order the temporary suspension of an Outdoor Dining Area License and removal of all temporary fixtures associated from the outdoor dining area, at the licensee's expense for failure to comply with license requirements.