Ordinance Amending Regulations For Outdoor Seating And Dining

CITY COUNCIL AGENDA August 4, 2015

ITEM/SUBJECT: Ordinance amending the Code of Ordinances, Chapter 46 Environment, Article VI, to establish regulations for outdoor seating and dining; providing for a penalty, providing for codification; and setting an effective date

INITIATING DEPT: Community Development/Planning/Property Mgt.

COMMENTARY: Downtown Wichita Falls continues to transform after decades of revitalization efforts to address various sections of the community's original town site. Recently a renewed interest in the downtown core of Wichita Falls has sparked numerous business projects (lease or purchase) moving into long-time vacant commercial spaces. While this is very exciting, staff is now in a position where we must address requirements and catch-up with proposed business practices that historically have not been an issue in the downtown core.  Currently, the City has a policy, not a regulation, to require an encroachment agreement for activities in the City right-of-way (streets and sidewalks).

The most urgent topic to address is outdoor dining on city sidewalks. Property owners are now requesting permission to create a public space for their patrons to enjoy in the public right-of-way area. The Planning Division worked in conjunction with Property Management, Code Enforcement, Public Works, and Legal departments to develop and recommend a companion ordinance that would establish regulations for outdoor dining on city sidewalks downtown. Staff reviewed and researched other communities such as Fort Worth, McKinney, Waco, and Austin where outdoor dining regulations were specified. Additionally, staff reviewed other communities such as Ann Arbor, Michigan; Alexandria, Virginia; Santa Monica, California; and Adelaide, South Australia. The effort was to strike the proper balance between providing for a safe and reasonable space for pedestrians, while providing the property owners the ability to maximize the use of their property.

Staff recommends approval of the attached ordinance to define regulations for downtown seating on public sidewalks. The ordinance requires businesses proposing outdoor dining on public sidewalks to submit a site plan to the City for approval. Additionally, an encroachment agreement will be required for the outdoor dining on city sidewalks through Property Management. Typically, encroachment agreements are a minimum of $1,000 or the fair market value of the property that is consumed in the encroachment, whichever is greater. However, since these encroachments are temporary and minor in nature, staff recommends charging $250.00 on a one-time basis to recover the administrative costs associated with these particular encroachments in the Central Business District. The proposed regulations specify outdoor dining areas, items allowed on sidewalks, and a pedestrian access clearance area.

Outdoor dining areas are specifically designated to contain seating, tables, coverings (such as umbrellas, awnings, and canopies), and other appurtenances. Additionally, fencing (3ft. to 4ft.) will ensure distinct separation between outdoor dining areas and pedestrian access on sidewalks. This set up will ensure that safe and clear pedestrian access (5ft. width) is maintained between the curb line and the proposed dining space. The goal is to encourage opportunities for outdoor dining in the downtown, while maintaining safety and access for the public.

Ordinance amending the Code of Ordinances, Chapter 46, Article VI, to establish regulations for outdoor seating and dining; providing for a penalty, providing for codification; and setting an effective date

WHEREAS, the city staff has reviewed this proposal and recommends approval of these amendments to the Code of Ordinances; and,

WHEREAS, the City Council concurs with city staff's recommendation to amend the Code of Ordinances, Chapter 46, establishing Article VI.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT:

1. Outdoor Dining. The following sections of Chapter 46, Article VI, Code of Ordinances pertaining to the establishment of Outdoor Dining are amended as follows:

Chapter 46 - ENVIRONMENT
ARTICLE VI. - OUTDOOR DINING

Sec. 46-250. – Purpose.

The purpose is to encourage outdoor dining on public sidewalks Downtown. The standards establish outdoor dining areas, identify clear safe pedestrian access on sidewalks, and require an encroachment agreement between a tenant and the City. Other outdoor dining area appurtenances including the location of seating, tables, barriers, signs, awnings, canopies, and umbrellas are also regulated.

Sec. 46-251. – Definitions.

Downtown: Areas zoned Central Business District (CBD). Areas outside, but in close proximity to the Central Business District (CBD) may be considered by the Director of Community Development or designee.

Encroachment Agreement: An agreement between a property owner and tenant with the City of Wichita Falls to use or place items on public right-of-way.

Outdoor Dining Area: The use of an area of public sidewalk for the purpose of extending the seating space of businesses whose main function is the provision of food or beverages. An outdoor dining area shall abut and be contiguous to such business and may contain removable tables, chairs, plants, and related appurtenances.

Off-Premise Menu Sign: A sign displaying a menu for a business utilizing and in an outdoor dining area. An off-premise menu sign is: 1) An "A" frame (or sandwich board) sign with a maximum area of 6 square feet per side; or 2) a menu in a display case (maximum size of 4 square feet) on a pedestal or stand not more than 50 inches in height.

Sec. 46-252. – Encroachment Agreement and Site Plan.

Encroachment agreement and site plan required for approval:

(a.) Encroachment agreement –

(1.) An encroachment agreement between the tenant and city shall be required for an outdoor dining area on public sidewalks downtown. The one-time encroachment fee shall be $250. (2.) The agreement is not transferrable. An encroachment agreement may be revoked at any time should there be a violation.

(b.) Site Plan.

(1.) A site plan review is required, as specified in section 7100. (2.) A scaled site plan showing dimensions and measurements of sidewalks and outdoor dining area including seating, tables, fencing, canopies, awnings, umbrellas, planters, off-premise menu sign or other appurtenances. Site plans shall also show the location of all utilities. (3.) Any future additions or alterations to the approved site plan shall be subject to review and inspection by Community Development. (4.) All site plans need approval prior to the encroachment agreement. (5.) Outdoor dining areas in public right-of-way in designated historic districts or landmarks are subject to review and approval by the Landmark Commission.

Sec. 46-253 - Minimum Requirements for Outdoor Dining Areas.

Outdoor Dining Area and Pedestrian Access Clearance area:

(a.) A minimum pedestrian access clearance of 5-feet shall be maintained between the face of the outdoor seating enclosure and back of curb (See Figure A). (b.) No outdoor dining areas, articles, signs, materials, merchandise, or wires or cords shall locate in the designated 5-foot pedestrian access clearance area. (c.) All ingress/egress into and out of a building and fenced area shall maintain sufficient clearance, consistent with building and fire codes. (d.) No trash enclosures or refuse storage is allowed or on the public sidewalk in the outdoor dining area. All trash and rubbish shall be promptly removed from the encroached area. (e.) All articles, not limited to tables, chairs, canopies/awnings/umbrellas shall be removable should there be any public improvements or maintenance needed to infrastructure in the outdoor seating area. (f.) The city shall not be liable for any damages or removal of articles due to such improvements or maintenance on the sidewalk within an easement or right-ofway. (g.) Outdoor dining areas are subject to the city's smoking ordinance.

Sec. 46-254 – Fencing.

Fencing is meant to identify the section provided for tables, chairs and umbrellas, for use as outdoor dining areas.

(a.) A minimum 36-inch, maximum 48-inch, tall weather resistant wrought iron, aluminum or metal fence is required around the designated dining area and anchored to the sidewalk as shown in Figure A. (b.) Fence must be secured to the sidewalk and remain easily removable.

Sec. 46-255 - Canopies and Awnings.

(a.) Canopy – (Figures B and C)

(1.) A canopy shall maintain a minimum 8-feet of vertical clearance. (2.) No support poles allowed in or over the right-of-way except structural columns that support cantilevered canopies shall be located within 6" of the building exterior.

(b.) Retractable Awning – (Figure D) (1.) Retractable type awnings shall not project beyond the fence into the sidewalk clear area. (2.) No support poles are allowed in or over the right away. (3.) All portions of any awning shall be a minimum of 8 feet above the ground.

(c.) The area between the top of the fence and the bottom of any awning or canopy shall remain open. No transparent barriers (such as Plexiglas or plastic) are permitted between the top of the fence and the bottom of the awning.

(d.) All canopies and awnings shall be of UL rated non-combustible material/construction.

(e.) Canopies and awnings must be free of advertisements and contained within the outdoor dining area.

(f.) Commercial style canopies or retractable awnings shall be designed specifically for commercial outdoor use that can handle extreme environmental conditions.

Outdoor Umbrellas – (Figure E)

(a.) All parts of any umbrella, including the fabric and supporting ribs, must be contained entirely within the outdoor dining area. (b.) Umbrellas must be free of advertisements. (c.) Market style umbrellas, designed specifically for patio or outdoor restaurant use are required. (d.) Umbrellas are to maintain a minimum height clearance of 8 feet.

Sec. 46-257 – Signage

(a.) No signs allowed on sidewalks except one off premise menu sign. No signs shall encroach into the 5-foot sidewalk clearance area. Signs shall be removed from sidewalks at the close of business. (b.) No signs shall be allowed on fences or hanging from any other objects on or over the 5-foot clearance area on sidewalks, unless required by state law. (c.) Signs on awnings or canopies may have the business name only in lieu of a wall, ground or pole sign and in conformance with the city's sign ordinance (Section 6700).

Sec. 46-258 – Lighting.

(a.) Lighting shall be low voltage (25 Volts or less). (b.) Lighting fixtures, if provided shall meet the nuisance lighting ordinance. (c.) The applicant must obtain an electrical permit for a lighting plan from the City's Building Inspection Division. (d.) No permanent lighting shall be affixed to coverings including but not limited to canopies, awnings, or umbrellas. (e.) All lighting must be removable.

Sec. 46-259 - Outdoor Heaters.

(a.) Heating units shall have a UL or AGA listing. (b.) Heating units shall not be installed over or near exits from the building. Units shall maintain the required clearances from combustible materials.

Sec. 46-260 Setback from Neighboring Businesses.

(a.) Set back to neighboring Businesses - Neighboring businesses must remain visible to pedestrians and motorists alike. Restaurants need to be mindful of adjoining businesses when using outdoor dining areas, making sure that neighboring businesses remain visible to pedestrians and motorists.

Sec. 46-261 Prohibitions.

(a.) Prohibited Fencing: No fabric inserts, chain link fencing, chicken wire or cyclone fencing. No banners or advertising allowed on fencing. (b.) Prohibited sidewalk coverings include carpet or other flooring material constructed of fabric, canvas, wool, tile, linoleum, nylon, vinyl, or any covering that is intended to resemble turf. (c.) Platforms: Raised decks, platforms, or other such surfaces are not permitted within outdoor dining areas.

2. Penalty. This ordinance regulates zoning, and shall be punishable by a penalty of up to $500 per violation and as provided by Section 1-14 of the Wichita Falls Code of Ordinances.

3. Codification. The City Council intends the provisions of this ordinance to become a part of the Code of Ordinances of the City of Wichita Falls, and sections of this ordinance may be renumbered or relettered to accomplish such intention. Statutory and ordinance references herein may be modified as necessary.

4. Effective Date. This ordinance becomes effective September 3, 2015. PASSED AND APPROVED this the 4th day of August, 2015.