The purpose and intent of this Article is to create a streamline administrative permit process for outdoor dining areas located on private property in order to benefit tenants, property owners, and the public, and to establish regulations that enhance the pedestrian ambiance of the City and ensure that such outdoor dining areas do not adversely impact adjacent uses, properties, and surrounding neighborhoods.

(Ord. No. NS-3033, § 7, 12-20-22)

(a)

The provisions of this Article shall apply to:

(1)

All new outdoor dining areas located on private property; and

(2)

All legally established and existing outdoor dining areas located on private property that are proposed to be expanded or enlarged.

(b)

The provisions of this Article do not apply to:

(1)

Common outdoor dining and seating areas as part of a development that has been approved through a Development Project Plan in accordance with Division 3 of Article V of this Chapter; and

(2)

Outdoor dining areas in the public right-of-way that are subject to the provisions set forth in Article VI (Outdoor Dining Areas in the Public Right-Of-Way) of Chapter 33 (Streets, Sidewalks and Public Works) of the SAMC.

(c)

The provisions of this Article are not intended to provide exclusive regulation of the development of an outdoor dining area. An outdoor dining area shall comply with all applicable state and federal laws and all local regulations imposed in other articles of this Chapter and other city ordinances, unless explicitly exempted under this Article. Should a conflict exist between the provisions of this Article and the provisions of other articles of this Chapter, the provisions of this Article shall prevail, unless otherwise determined by the Director of the Planning and Building Agency.

(Ord. No. NS-3033, § 7, 12-20-22)

(a)

An outdoor dining area shall require approval of an administrative application and permit as established by the Executive Director of the Planning and Building Agency, and shall be developed in compliance with an approved site plan that indicates the area dedicated for outdoor dining and the maximum seating capacity.

(b)

Approval of the outdoor dining area permit shall be granted only to the property owner or business owner of the eating establishment with written concurrence of the property owner.

(c)

When an eating establishment use is proposed to be replaced with another eating establishment where an outdoor dining area permit has been previously approved pursuant to this Article, the new business owner may continue to utilize the existing outdoor dining area without obtaining a separate outdoor dining permit, so long as such business owner submits an agreement to comply with the previously approved outdoor dining area permit application, conditions, and the requirements of this Article. Such agreement shall be on a form as approved by the Executive Director of the Planning and Building Agency.

(Ord. No. NS-3033, § 7, 12-20-22)

An outdoor dining area shall be permitted as an ancillary use in all zones where eating establishments are permitted or conditionally permitted.

(Ord. No. NS-3033, § 7, 12-20-22)

An outdoor dining area shall comply with the following placement, development, and design standards:

(a)

The location of the outdoor dining area shall be approved by the property owner(s) with consent of the affected business(es).

(b)

An outdoor dining area may encroach into and up to fifteen (15) percent of the required front and street side yard areas.

(c)

The outdoor dining area shall provide and maintain: (1) a five (5) foot landscape buffer between property lines and the edge of the outdoor dining area; and (2) a three (3) foot landscape buffer between parking spaces and vehicular areas and the edge of the outdoor dining area.

(d)

The outdoor dining area shall comply with corner and driveway obstruction line-of-sight standards, as modified from time to time.

(e)

The outdoor dining area shall not obstruct any required off-street parking spaces, drive aisles, paths of travel, ingress or egress, emergency access/exits, or fire lanes unless replaced elsewhere on site.

(f)

The outdoor dining area shall be constructed on a permanent raised pad with curbs and may be enclosed by a permanent barrier made of landscape planters, fencing, decking, shade structures and other decorative materials that physically separate and/or define the outdoor dining area. If installed, the height of the barrier shall not exceed four (4) feet in height.

(g)

Awnings, covers, furniture, umbrellas, shade structures, and other physical elements shall be compatible with the character of the primary use structure and shall be fire-retardant, pressure-treated or manufactured of fire-resistant materials.

(h)

Planter boxes, if installed, shall be made of durable materials such as wood, ceramic, stone, or metal.

(i)

Signage within the outdoor dining area is prohibited with the exception of a menu board. A menu board of up to six (6) square feet may be displayed within the outdoor dining area.

(j)

Lighting in accordance with Chapter 8 of the SAMC shall be provided to illuminate the outdoor dining area during nighttime hours.

(k)

When an outdoor dining area is located adjacent to sensitive uses (e.g., residential uses, parks, playgrounds, and private and public schools (k-12)), provisions shall be made to minimize noise, light, and odor impacts on the adjacent sensitive uses. This may include without limitation a sound-buffering acoustic wall and/or separation by a physical barrier to define the limits of the outdoor dining area.

(Ord. No. NS-3033, § 7, 12-20-22)

Outdoor dining shall comply with the following operational standards:

(a)

All areas in and around the outdoor dining area shall be well kept and maintained free of trash and debris.

(b)

The hours of operation for the outdoor dining area shall be limited to the hours of operation for the eating establishment. However, if the outdoor dining area is adjacent to a sensitive use, such hours of operation may be restricted to reasonable operating hours as determined by the Executive Director of the Planning and Building Agency.

(c)

The outdoor dining area shall be operated in a manner to comply with the noise provisions pursuant to Section 10-153 of Chapter 10 of the SAMC.

(d)

Establishments with an approved conditional use permit (CUP) pursuant to Section 41-196 (Establishments Selling Alcoholic Beverages) of this Chapter may serve alcoholic beverages within the outdoor dining area if consistent with the scope and intent of the CUP, as evaluated by the Executive Director of the Planning and Building Agency.

(e)

No heating, cooking or open flames are permitted in the outdoor dining area.

(f)

Heating units are permitted only if an outdoor approved type and located in accordance with the manufacturer's recommendations. Propone tanks, if used, shall not be stored outdoors.

(g)

Movable furniture must be secured or moved inside the primary establishment at closing time.

(h)

All outdoor dining furnishings and materials shall be maintained and cleaned regularly with no ripped, faded, or otherwise damaged materials. Any damaged materials shall be repaired or replaced immediately.

(i)

The outdoor dining area shall be operated in a manner that complies with all applicable federal, state, county and city laws and regulations.

(j)

The outdoor dining area shall not be detrimental to the health, safety, or welfare of persons residing or working in the vicinity.

(Ord. No. NS-3033, § 7, 12-20-22)

Off-street parking for an outdoor dining area shall be provided in accordance to Section 41-1341 of this Chapter, except that:

(a)

An outdoor dining area located within an integrated development site, as defined in Section 41-83.5 of this Chapter, may convert up to three (3) required off-street parking spaces into outdoor dining without needing to replace such parking. An integrated development site with two-hundred fifty (250) or more off-street parking spaces may convert additional required off-street parking spaces into outdoor dining at the discretion and approval of the Executive Director of the Planning and Building Agency.

(b)

An outdoor dining area located within a stand-alone development site with one primary eating establishment may convert up to twenty-five (25) percent of the required off street parking spaces into outdoor dining without needing to replace such parking.

(Ord. No. NS-3033, § 7, 12-20-22)

The standards of this Article are intended to promote quality development of outdoor dining areas. In special circumstances, modifications to the placement and development standards required per Section 41-2204 of this Article may be adjusted, subject to the applicant providing the necessary information for the Executive Director of the Planning and Building Agency to make an informed decision in grating or denying the request for the modification. The approval of a modification per this section shall be accompanied by the following findings:

(a)

Approval of the modification would not result in detrimental impacts to adjacent properties or the character and function of the neighborhood.

(b)

The design, development, and conditions associated with the outdoor dining area are consistent with the goals, policies, and intent of the General Plan, and the purpose, intent, and character of the applicable zone.

(c)

The outdoor dining area creates and provides a visually pleasing setting for occupants, visitors and the general community.

(d)

To the maximum extent feasible, the outdoor dining project includes improvement to the site such as but not limited to:

(1)

Landscaping shall be improved to bring the site closer into compliance with the landscaping requirements of this Chapter;

(2)

Parking areas in poor condition shall be improved and maintained in accordance with Section 41-1304 of this Chapter;

(3)

Bicycle parking shall be provided and maintained in accordance with Section 41-1307.1 of this Chapter.

(4)

Building(s) on the site shall be repainted as needed; and

(5)

A trash enclosure in accordance with this Chapter shall be constructed or rehabilitated as determined by the Public Works and Planning and Building agencies.

(Ord. No. NS-3033, § 7, 12-20-22)

(a)

It is unlawful for any property owner, business owner, operator, tenant, or other person in control of property within the city for which the provisions set forth in this Article apply, to operate an outdoor dining area without an outdoor dining area permit, or to fail to comply with each and every condition of that outdoor dining area permit.

(b)

Each and every violation of this Article shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the SAMC. Additionally, as a nuisance per se, any violation of this Article shall be subject to injunctive relief, revocation of the outdoor dining area permit, revocation of certificate of occupancy for the eating establishment, disgorgement and payment to the City of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney's fees, and any other relief or remedy available at law or equity. The City may also pursue any and all remedies and actions available and applicable under local and state laws for any violations committed by an outdoor dining permittee and persons related or associated with the business.

(c)

When an authorized City of Santa Ana representative finds that any of the provisions of this Article have been violated or that any of the following findings of fact can be made, the Executive Director of the Planning and Building Agency, or its designee, may revoke, suspend, or modify an outdoor dining area permit:

(1)

Circumstances under which the outdoor dining permit was granted have been changed by the operator to a degree that the public convenience, health, interest, safety or welfare require revocation or modification;

(2)

The outdoor dining permit was issued, in whole or in part, on the basis of a misrepresentation or omission of a material statement in the application;

(3)

One (1) or more of the requirements of the outdoor dining permit have not been substantially fulfilled or have been violated;

(4)

The improvement/use authorized in compliance with the outdoor dining permit approval is in violation of any code, law, ordinance, regulation or statute of the city, state or federal government; or

(5)

The improvement/use authorized in compliance with the outdoor dining permit has become detrimental to the public convenience, health, interest, safety or welfare, or the manner of operation constitutes or is creating a nuisance.

(d)

No such revocation shall become effective until the outdoor dining permit holder has been notified in writing by certified mail of the right to appeal the revocation decision pursuant to the provision of Chapter 3 of the SAMC. If a timely appeal is filed, the revocation shall be effective only upon decision of a hearing officer as provided for in Chapter 3 of the SAMC. Otherwise, the revocation shall become effective after the time for appeal has passed.

(e)

An outdoor dining area permit shall be terminated and the outdoor dining area and its improvements shall be removed and rehabilitated to their original use by the property owner if the outdoor dining area is vacant, unused, or unoccupied for more than six (6) months, or if the eating establishment is replaced with a non-eating establishment.

(Ord. No. NS-3033, § 7, 12-20-22)