Executive summary:
This report provides an overview of the process required to fully develop a permanent outdoor seating program in the public right of way, ultimately for consideration by Council. This would include numerous public hearings and workshops, discussing major policy issues such as rental fees, and updating several City regulatory documents including the City’s General Plan and Zoning Code.
As part of this agenda item, Council is respectfully being asked to consider potential impacts to the recently approved list of 16 “Priority Projects” (Attachment 1). These 16 projects were prioritized as part of a larger list of 30 important projects, which includes exploring an outdoor dining program. If Council chooses to move forward immediately with this project, it would largely be led by the Community Planning and Building Department (CPB). Direction would be requested on which of the eight (8) projects already led by CBP might be put on hold or set on a slower track to free up the needed resources for this effort. Examples of priority projects with a similar level of effort include: creation of street addresses; developing a paid parking program; updating the City’s telecommunications ordinance; the Design Traditions 1.5 project; and exploring barriers to affordable housing in preparation for updating the City’s Housing Element. All of the projects on the larger list of 30 are important and worthwhile, including exploring outdoor dining in the right of way. Each project will be addressed at some point in the next couple of years, so the question for Council revolves around timing and utilization of staff resources.
Discussion:
At their April 5th, 2022 meeting, Council decided to keep the mandatory removal date of April 20, 2022 for all temporary parklets. As part of this action, staff was asked to return at the next regular meeting to lay out the process to consider a permanent outdoor seating program in the public right of way. Although the aesthetics and physical design of outdoor seating play a major factor in the development of this program, there are several other regulatory considerations that must be addressed first, or at least at the same time. This means that once the development of an outdoor seating program in the right of way is started in earnest, the process will require a significant commitment of City time and staff resources. This process would effectively have three major components:
- Component # 1 - Public meetings;
- Component #2 - Policy decisions; and
- Component #3 - Regulatory considerations.
These three major components would each include multiple steps along the way, but are discussed below in broader detail:
Component #1 - Public Meetings
Given the scope and impact of a permanent outdoor dining program in the right of way, there would need to be numerous public meetings. Staff would recommend conducting at least one (1) focused community workshop at a location like sunset center early on in the process. This workshop would allow staff to get the broad community engaged in the conversation and garner important early feedback. In addition to this workshop, there would need to be at least three (3) Planning Commission meetings in order to formally discuss and develop program parameters such as consistency with existing regulations, design/aesthetics, public safety, allowed uses, permitting requirements, and other important planning topics. Additionally, at least one (1) meeting with the Historic Resources Board would be required due to the historic nature of the downtown area. Ultimately, these planning and development meetings would culminate with at least three (3) City Council hearings to consider the merits of the program, and regulatory changes required to implement it. Most of these regulatory changes, which require adoption by ordinance, would necessitate at least two City Council hearings on the matter. Ultimately, if a program was adopted by the City, it would not become effective until a Local Coastal Program (LCP) amendment was processed and certified by the California Coastal Commission at one (1) final public hearing. All told, this would add up to no less than nine (9) public meetings to successfully develop a permanent outdoor dining program in the right of way. It should be noted that there has already been effort geared towards gathering public input about this program, so staff would not be starting from scratch. An ad hoc committee made up of Mayor Potter and Mayor Pro Tempore Richards convened public meetings beginning on February 8th, 2021, with over half a dozen more that followed.
Ad hoc conversations centered around basic constraints that would need to be considered for a permanent program, all of which would require thorough analysis if the program development moved forward. After those initial discussions, a public survey (Attachment 2) was crafted over the course of three (3) Ad-Hoc meetings. The survey gathered feedback from residents, business owners, and other stakeholder groups on the some of the largest and most complicated aspects of a permanent program. These survey results are still useful data, and will be included as part of the analysis done by the Planning Commission, and City Council
Component #2 - Policy Decisions
Policy decisions would need to be made somewhat early in the process by City Council. This policy direction is necessary to shape many of the regulatory updates required to implement a new program. This component is intentionally called out separately from the regulatory considerations, because it would need to take place prior to drafting updates to the Zoning Code and General Plan. These policy decisions would include, but are not limited to such complicated legal and political topics such as:
- Nature of parklet ownership (lease/rent vs. private ownership)
- Whether or not (and how much) to charge for permanent parklet spaces
- How to handle changes in business ownership
- Insurance and liability requirements
- Whether to include other businesses like wine tasting, specialty restaurants, etc.
The fine tuning and specifics of these and other policy decisions would be worked out through the numerous public meetings noted above. However, early direction from City Council would be important to guide the process in the right direction.
Component #3 - Regulatory Considerations
In 2020, under the City’s Proclamation of a Local Emergency, CMC section 2.64.060 allowed for the creation of temporary rules to protect life and safety, even if those rules did not conform to the City’s codified regulations. Under these provisions, temporary parklets were allowed to be put in place and remain in the right of way for nearly two years. Now that temporary parklets are no longer allowed, outdoor dining in the public right of way must conform to the City’s codified regulations before it can be permitted. In several cases, this means that existing regulatory documents would need to be amended, including the City’s Zoning Code, General Plan, and Design Guidelines.
The following is a list of the most prevalent examples of code sections which could need amendments. The code section is listed first, and then a brief explanation of the potential conflicts are given. This list is not exhaustive, and could change as the program was developed:
CMC 17.14.070 - Enclosed Structures Required for All Uses:
“All uses in all districts shall be conducted within a completely enclosed building.”
- Restaurants are exempt from this requirement, so a restaurant parklet would not be in conflict. However, if any other uses such as wine tasting shops were to be included in the program, an amendment to this section of code would need to be considered.
CMC 17.14.220.D.3 - Design Regulations for Exterior Seating Associated with a Restaurant:
“The area in which the seating is proposed shall be fully contained on private property and shall not interfere with automobile or pedestrian traffic on any public right-of-way or through any intra-block walkway.”
- This would require a wholesale change in the regulatory language to allow seating on public property. The City would also have to consider if auto and pedestrian traffic would be impacted, and whether this language requires amending.
CMC 17.14.220.D.6 - Design Regulations for Exterior Seating Associated with a Restaurant: “Physical structures that enhance comfort such as windscreens, heaters, and exterior lighting shall be shielded from view from the public right-of-way and from intra-block walkways or shall be designed to be architecturally compatible with the village character and the adjacent buildings.”
- Code requires considering not only the façade of the business operating the parklet, but also adjacent businesses. There may not be agreement among neighboring businesses about “compatibility”.
CMC 12.32.160 – Picnicking and Camping:
“It is unlawful to picnic, camp, place tables, place chairs, eat, hang out things to dry, or do any other act connected with human habitation, on any public right-of-way, sidewalk area or in any parking area.”
- This is another section of code requiring a wholesale change to the language regarding how sidewalks and parking are used.
CMC 12.08.060 – Encroachment Application Review Standards:
[See standards A. through H. – Attachment 3]
- These are the standards that have been reviewed in conjunction with other recent permanent encroachment applications. If outdoor seating in the right of way became permanent, these standards may have to be revised or a specific exception created for outdoor restaurant seating.
CMC 12.12.010 – Obstruction of Streets:
“It is unlawful for any person to leave, or cause to be left, any goods, wares, merchandise, merchandise containers, refuse or waste containers, building materials or equipment, or other articles, upon any sidewalk, sidewalk area, street, parkway, or other public property, within the City, except under the following conditions:”
- Currently, the exceptions to this regulation do not include dining in the public right of way. Amendments would be required in this section of code.
General Plan Policy P1-20 – Land Use and Community Character Element:
“Encourage outdoor eating areas that are in character with the design of the commercial district, do not adversely impact adjacent residential land uses, interfere with pedestrian or vehicular circulation, or result in a net increase in the mount of restaurant seating.”
- Portions of this General Plan policy may need to be amended depending on how the program would be structured. If restaurants were able to add one (1) or more seats through outdoor seating in the right of way, an amendment would be required. Findings would also need to be made that parklets do not impact adjacent residential uses or interfere with pedestrian or vehicle circulation.
General Plan Land Use and Community Character Element - Pg. 1-18:
“Pedestrian congestion detracts from the shopping and walking experience and the overall economic vitality in the commercial district, especially on Ocean Avenue. The large number of establishments offering food that can be consumed immediately on the sidewalks and litter and food debris left, also detract from the pedestrian experience.”
- Although not a numbered Policy, this section from the purpose statement of the Land Use and Community Character Element may need to be amended, or findings made that permanent outdoor seating in the public right of way does NOT detract from the “pedestrian experience”.
Commercial Design Guidelines:
[All impacted Sections – no specific language]
- The existing Commercial Design Guidelines do speak to colors and materials for buildings in the downtown area. Some language would need to be created to guide the look and feel of permanent outdoor seating areas in the public right of way, since there is currently no mention of them.
Local Coastal Program (LCP):
[All impacted sections – no specific language]
- As a City with a certified Local Coastal Program (LCP), Carmel-by-the-Sea is required to submit an application to the California Coastal Commission (CCC) to amend its LCP any time a component of that LCP is modified. That required application seeks certification from the CCC that all modifications are in accordance with the California Coastal Act. Since the Zoning Code and General Plan are both part of the City’s LCP, certification of these regulatory changes would be required before they became effective.
Based on review of these three (3) major components of developing a permanent outdoor seating program in the public right of way, staff is seeking Council direction on whether or not to begin development of the program. If the Council is inclined to begin work on this program immediately, staff is also seeking direction as to which of City Council’s 16 top priority projects should be set aside to free up the necessary staff resources.