This chapter [article] is designed to permit outdoor dining in areas where it is appropriate and to promote and protect the public health, safety and general welfare. This legislation is intended to accomplish the following:

(a)

To ensure adequate space for pedestrians on sidewalks adjacent to outdoor dining areas.

(b)

To preserve and enhance the character of the neighborhoods where such outdoor dining is permitted in the village.

(1)

To provide requirements for bars, restaurants, take-out food, and other related establishments desiring to provide outdoor dining to patrons.

(2)

To promote the best use of land.

(3)

To promote the best interest of the business and residential districts.

(4)

To promote the scope and vision of the comprehensive plan for the village.

(L.L. No. 5-2004, § 1, 6-1-04)

An outdoor dining area is any space outside the walls of the bar, restaurant, takeout food store or related establishment that is designated by the proprietor of the establishment for consumption of food or beverages, regardless of whether it has a roof or awning over it or whether it is enclosed by screens, curtains, plastic or similar materials which set it off from the open air.

(L.L. No. 5-2004, § 1, 6-1-04)

(a)

No outdoor dining shall be allowed by any business or establishment unless a permit has first been obtained from the village clerk.

(b)

The fee for such permit shall be in such amount as determined from time to time by resolution of the board of trustees.

(1)

In the event that a permit application is denied prior to any outdoor dining area being established, the applicant may receive one-half of the permit fee paid upon making a written request to the office of the village clerk, and with the clerk's approval.

(2)

In the event an application for a permit is denied, and the applicant has already established such outdoor dining area, the permit application fee will not be refunded and the applicant and/or establishment will be required to remove any outdoor dining furniture and/or fixtures.

(c)

The permit may be conditioned on modifications or restrictions intended to ensure compliance with all applicable rules, regulations, ordinances, local laws and statutes and the general protection of health, safety and welfare and the intent of this legislation.

(L.L. No. 5-2004, § 1, 6-1-04)

(a)

Only commercial establishments with a proper certificate of occupancy for restaurant use which has heretofore been duly issued by the Erie County Department of Health, which takes orders for food and/or drink, and which maintains table service within its establishment, may take orders and serve food and beverages in such outdoor dining areas.

(b)

Other commercial establishments that are not restaurants referred to in subsection (a) above, which sell food, may apply for an outdoor dining permit but may not take orders or serve food and beverages at such outdoor dining areas.

(c)

All other commercial establishments, with the permission of the board of trustees.

(L.L. No. 5-2004, § 1, 6-1-04)

(a)

Any application for outdoor dining shall be made to the village clerk in writing on a form prescribed by the office of the village clerk/treasurer.

(b)

Such application shall contain the following information:

(1)

The name, address and phone number of the applicant. If the applicant is a partnership, the name and address of each partner and the address for service of process of the partnership. If the applicant is a limited liability company, the address for service of process. If the applicant is doing business under an assumed name, the names and addresses of the principals and the address for service of process of the business. If the applicant is a corporation, the address for service of process.

(2)

The name, address and phone number of the establishment to be the subject of the application and the name and telephone number of the owner and/or operator of the establishment.

(3)

If alcoholic beverages are to be served or sold, the application shall be accompanied by a copy of the appropriate liquor license issued by the state and a statement showing the precautions to be taken to restrict consumption of alcoholic beverages to the premises and to those of legal age.

(4)

A survey or site plan of the subject property that also indicates the adjacent property, including property owned by the village, county and/or state. The survey or site plan must show the complete sidewalk area, with the location of all furniture and fixtures to be used, including a fully dimensioned seating plan, the location of entrances, exits, driveways, and the location of all refuse containers, including dumpsters and cans, both proposed and existing.

(5)

A description of all furniture and fixtures to be used, including color, size, materials, seating capacity, and how such furniture and fixtures shall be stored or secured during non-operational hours.

(6)

Proof of insurance.

(7)

Hours of operation for outdoor dining proposed.

(8)

Any other information that the village clerk and/or building inspector may find reasonably necessary to determine whether a permit should be issued.

(c)

The application shall be signed and acknowledged under oath by the applicant, if an individual or sole proprietorship, or by a duly appointed agent if a limited liability company or partnership, or by a duly authorized officer of a corporation, if the applicant is a corporation.

(L.L. No. 5-2004, § 1, 6-1-04)

The following standards shall apply in all instances:

(a)

The permit application will be reviewed by the building inspector, police chief and village clerk before any approval is issued. Any permit application may also be reviewed by the planning board, if deemed necessary by the building inspector.

(b)

In determining whether to approve or deny the application, the following shall be considered:

(1)

Whether the proposed outdoor dining will not interfere with pedestrian or vehicular traffic, or use of the public right of way adjacent to the establishment.

(2)

Whether the applicant and the property are in compliance with and have met all other applicable provisions, codes, laws, rules and regulations.

(3)

Whether the proposed outdoor dining will promote the ideas and concepts of the comprehensive plan.

(L.L. No. 5-2004, § 1, 6-1-04)

The applicant and the establishment listed on the permit application, which has been issued, shall be liable to and shall indemnify the village for any loss, damage, or injury or expense sustained by the village 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 the direct or indirect result of the operation of such outdoor dining area.

(L.L. No. 5-2004, § 1, 6-1-04)

No permit shall be issued until the village clerk is in receipt of a certificate of insurance for comprehensive general liability naming the village as additional insured, for combined single limits of no less than one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) general aggregate and umbrella limits of one million dollars ($1,000,000.00). If the establishment will be serving or selling alcoholic beverages, the applicant must also provide proof of dram shop insurance coverage.

(L.L. No. 5-2004, § 1, 6-1-04)

The building inspector shall have the authority to revoke or suspend a permit when, in his or hers discretion, the building inspector finds a violation of any applicable rule, regulation, ordinance, local law or statute, or that a continuation of said permit would constitute a hazard, nuisance, or upon a showing of good cause.

(a)

Written notice of such revocation or suspension will be mailed to the applicant and to the establishment via certified mail, return receipt requested.

(b)

Said notice will inform the applicant and/or establishment of the right to appeal and the procedure for making said appeal.

(c)

Any revocation may be in addition to any fine imposed for violating this chapter.

(L.L. No. 5-2004, § 1, 6-1-04)

Appeals from the issuance, denial, revocation or other condition of a permit may be taken to the zoning board of appeals by any aggrieved person within thirty (30) days from the date of the issuance, denial, or revocation by filing a written notice of appeal with the village clerk.

(L.L. No. 5-2004, § 1, 6-1-04)

Outdoor dining areas and that of the adjacent areas shall be maintained and kept free of debris, refuse, and food/drink. The outdoor dining areas shall be swept each night just prior to closing and washed down as needed, but no less than once a week, and at other times as needed.

(L.L. No. 5-2004, § 1, 6-1-04)

The; hours of operation of outdoor dining shall be specified on the permit.

(L.L. No. 5-2004, § 1, 6-1-04)

Lighting must be in compliance with all applicable rules and regulations with approval by the building inspector. No outdoor cooking is allowed.

(L.L. No. 5-2004, § 1, 6-1-04)

All furniture and fixtures used in conjunction with outdoor dining must be of a temporary nature, and must be brought in at closing time, unless enclosed by a properly approved porch area. No signage shall be affixed to any temporary structures. All furniture and fixtures shall be approved by the building inspector in conformity with guidelines established by the planning board with approval of the board of trustees.

(L.L. No. 5-2004, § 1, 6-1-04)

(a)

Permits shall be issued on or after January 1 of each year and shall be valid for one year, expiring December 31 of the following year.

(b)

Applications for renewal of permits shall be made in the same manner as the original application.

(c)

Permits shall be posted in a conspicuous location in the interior of the establishment.

(d)

Permits are not assignable or transferable.

(L.L. No. 5-2004, § 1, 6-1-04)

(a)

No tables, benches, seats, planters, decorations or signs shall occupy or block any existing parking spaces, parking meters, trees, utility poles, mail boxes, exits or entrances, or be located so as to block or impede pedestrian or vehicular traffic.

(b)

All furnishings and fixtures are to be maintained in a satisfactory state of repair, cleanliness and appearance.

(c)

Reserved.

(d)

Reserved.

(e)

Furnishings are limited to tables, table umbrellas, chairs, and planters. Furnishings may not be attached, even in a temporary manner, to the sidewalk or other public property.

(f)

No outside music or speakers shall be permitted.

(g)

Activities of any nature conducted now or hereafter by any commercial establishment, enterprise, business, venture or shop in the village, may not take place in conjunction with outdoor dining.

(h)

Such outdoor dining activities shall be limited to areas directly in front of each store or establishment and shall not extend beyond the property lines. There shall be a minimum of five (5) feet total sidewalk width clearance to provide adequate and unobstructed pedestrian movement, such width to be measured from the outermost point of the outdoor dining area to the nearest obstruction.

(i)

Activities conducted now or hereafter by any commercial establishment, otherwise prohibited by all applicable rules, regulations, ordinances, local laws or statutes are not changed, amended, suspended or altered in any respect because of this article.

(j)

Other such restrictions as determined by the building inspector and/or clerk.

(L.L. No. 5-2004, § 1, 6-1-04)

If any section, paragraph, subdivision, clause or provision of this chapter shall be adjudged invalid, such adjudication shall apply only to the section, paragraph, subdivision, clause or provision so adjudged, and the remainder of this chapter shall be deemed valid and effective.

(L.L. No. 5-2004, § 1, 6-1-04)