HomeMy WebLinkAboutCAO-11-002 - Outdoor Patio Encroachment Policy and ProcessREPORT TO: Planning & Strategic Services Committee
DATE OF MEETING: February 28, 2011
SUBMITTED BY:
Rod Regier, Executive Director of Economic Development
519-741-2506
PREPARED BY:
Cory Bluhm, Manager of Downtown Community Development
519-741-3400 ext. 3375
WARD(S) INVOLVED:
All (primarily 1 & 10)
DATE OF REPORT: February 15, 2011
REPORT NO.:
CAO-11-002
SUBJECT:
OUTDOOR PATIO ENCROACHMENT POLICY AND
PROCESS
RECOMMENDATION:
That Policy I-1205 “Outdoor Patios – Encroachment Agreement” as amended be repealed
and replaced with the Outdoor Patio Encroachments Policy attached to Report CAO-11-
002; and
That the Manager of Downtown and Community Development or delegate be delegated
authority to approve applications for outdoor patio encroachment agreements in
accordance with Policy I-1205; and further
That the Mayor and Clerk be authorized to execute outdoor patio encroachment
agreements and amendments thereto provided such are in accordance with Policy I-1205
and satisfactory to the City Solicitor.
BACKGROUND:
The City, through its Official Plan Policies, strongly promotes the use of downtown sidewalks for
restaurant patios and cafes. Patios play a significant role in creating vibrant streets, enhancing
the pedestrian experience and attracting customers to the downtown. In fact, the new King
Street streetscape was designed specifically to maximize the amount of space available for
patios.
However, to ensure patios are designed appropriately and attractively, while being operated in a
manner that does not negatively impact pedestrians, the City requires all operators of patios on
municipal property to enter into a patio encroachment agreement. The agreement contains a
series of conditions that the operators are required to abide by or they risk the City revoking
their patio. Conditions relate to such items as cleanliness, accessibility, behaviour of patrons,
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and compliance with legislation. Many of the conditions are set out in the policy attached to this
report.
As part of the agreement, the applicants and City also agree on a patio layout/plan which
identifies the limits of the patio and means of defining the patio. Prior to 2010, all patios were
required to be fenced. However, in 2009, Council directed staff to allow non-alcohol serving
patios to be defined with alternatives to fencing, such as flower pots. Patios serving alcohol
must maintain fencing in accordance with Ontario Liquor Laws and our agreements. The
Downtown Kitchener BIA supplied flower pots to these patios and numerous comments were
made by community members who appreciate the aesthetic enhancement these pots provide.
When the City receives applications for patios, an extensive staff review is undertaken to ensure
the requirements of the City’s Operations, Engineering, Building, Licensing, Transportation
Planning, Fire Divisions and Inclusion Services are met.
REPORT:
The current patio process is cumbersome and often staff are challenged to obtain the necessary
approvals in a timely and efficient manner. Two factors within the City’s control contribute to
this. Firstly, the extensive staff review process takes time. However, after continually reviewing
the patio process over the past few years, staff feel they have established clear design
requirements for the patio plans. These requirements are generally outlined in the attached
proposed Council Policy I-1205, and have been developed based on extensive input from a
variety of City departments. In conjunction, staff have developed a stream-lined approach to
reviewing applications which will dramatically reduce review times and minimize the need for
staff resources.
Secondly, all patio plans have historically been approved by Council. Operators often request
quick approval for patios, which can be a challenge given the infrequency of Council meetings
during summer months. The result is that staff are not providing an efficient and effective
service to downtown patio operators. Delegating the approval authority for all patios to staff
(specifically the City’s Manager of Downtown Community Development) would address this
challenge. To ensure Council’s expectations are met, staff would approve patios in accordance
with the proposed Council Policy. Where operators propose a patio that deviates from the
policy, the appropriate staff will review the request and will only permit a deviation where, in
their professional opinion, the deviation is appropriate in all of the circumstances. In the event
that staff and the operator cannot agree on an appropriate patio plan, the patio plan would be
presented to Council for their final decision.
Staff feel the streamlining of the review process and delegation of authority will dramatically
improve service levels to patio operators, without causing an undue risk to the community.
Modifications to Council Policy I-1205
The proposed revised Council Policy includes many of the design recommendations approved
by Council in 2009, which were not explicitly written into the policy at that time. Recommended
colouring of fence in some areas has changed to black to provide visual contrast as suggested
by the City’s Inclusion Co-ordinator. The following additions are proposed, based on
experiences with the 2010 patios:
Where the pedestrian pathway bisects a patio (for example, a 2010 downtown patio had a row
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of tables along their store window, and two rows of tables along the curb edge), the operators
will be required to keep clean and clear the area between portions of the patio. This is to
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avoid the City’s sidewalk sweeper needing to travel between patio portions in a potentially
tight area;
In arranging their patio, operators shall make reasonable efforts to minimize any impacts of
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second hand smoke on pedestrians and neighbouring businesses;
A reasonable portion of the patio seating will be barrier free and accessible (normally at least
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10%);
Reminds operators of the importance of keeping sidewalk signs and other obstructions out of
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the accessible pathway for egress from the business;
In addition to the obligation to keep the patio area clear of refuse, the agreement will
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specifically address cigarette butts which were a problem around some patio areas in 2010;
and
•New patios with an alcohol to food ratio of 50% or less are able to use glass and china on the
patio, however, the Manager of Licensing still has authority to require that foods and
beverages be served using plastic/acrylic/paper where indicated.
ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN:
Downtown patios help implement the citizen’s vision for a dynamic downtown by providing street
activity and vitality. By streamlining the review process and delegating approvals to staff, the
City will be acting on our commitment to provide an effective and efficient government.
FINANCIAL IMPLICATIONS:
Not applicable.
COMMUNITY ENGAGEMENT:
In partnership with the BIA, staff interviewed most of the 2010 patio operators to understand the
aspects that worked well, did not work well and could be enhanced. Streamlining the process
was a common suggestion.
CONCLUSION:
Staff feel that delegating approval to staff, in conjunction with the attached policy, will create an
effective outdoor patio encroachment policy that will enhance our service to the operators while
potentially encouraging new patios.
ACKNOWLEDGED BY:
Carla Ladd, CAO
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COUNCIL POLICY RESOLUTION
POLICY NUMBER: I-1205 DATE: February 28, 2011
POLICY TYPE: STREET
SUBJECT: OUTDOOR PATIO ENCROACHMENTS
POLICY CONTENT:
Purpose:
The City, through its Official Plan and Economic Development Strategic Plan,
strongly promotes downtown vitality.The use of city property including
downtown sidewalks for restaurant patios and cafes directly contributes to
building a dynamic streetscape. Patios that are safely constituted, accessible,
and well operated play a significant role in creating vibrant streets and enhancing
the pedestrian experience.
Requirements
All applicants wishing to operate or make changes to an outdoor patio on City
property must submit a complete to-scale patio plan and details of any proposed
alternatives to fencing to the City’s Manager of Downtown and Community
Development or delegate (the “Manager”).
The Manager shall review each application and ensure that each patio plan is
satisfactory to the City’s Chief Fire Prevention Officer or delegate. The Manager
shall also determine whether the proposed patio plan shows:
a) a minimum of 1.83 metres (6 feet) clearance between the patio and any
other obstruction to provide sufficient space for pedestrian movement;
b) patio limits that are clearly defined by either physical barriers such as
fencing or flower pots or surface delineation such as paving stones;
c) where the patio is intended to have a liquor licence that it will be enclosed
by a fence of at least four feet in height;
d) a minimum 1.2 metre (3.94 feet) wide clear pathway provided for egress
from the business; and
e) that at least 10% of the patio’s tables and chairs will be barrier free and
accessible.
Where an alternative to fencing is proposed, the Manager shall review the
proposal to ensure that the alternative barriers are:
KITCHENERPage 1 of 4 February 2011
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POLICY NUMBER: I-1205
SUBJECT: OUTDOOR PATIOS – ENCROACHMENT AGREEMENT
a) proposed for a patio on which alcohol will not be consumed;
b) of a clearly visible colour that contrasts with the street’s surface material
(such as black);
c) at least four feet high (in the case of planters such height may be
calculated by combining the height of the planters and the protruding plant
material);
d) fixed or difficult to move;
e) of satisfactory materials; and
f) not, in the opinion of the City’s Director of Operations and Director of
Transportation Planning (or delegates thereof), barriers that would create
a hazard.
If any of the above criteria are not met, the Manager shall work with the
appropriate staff and the applicant to determine whether a satisfactory solution
can be reached.
Delegated Approval Authority
The Manager is hereby delegated authority to approve an application for an
outdoor patio encroachment agreement provided:
a) the applicable conditions set out under the Requirements subtitle in this
policy have been met or that any discrepancies have been resolved to the
satisfaction of the appropriate staff; and
b) the Kitchener Downtown Business Improvement Area, the Manager of
Licensing, and the Director of Enforcement have been notified of the
application and have not requested that the matter be referred to Council.
Notwithstanding anything else herein, the Manager may at any time refer an
outdoor patio encroachment agreement application to Council for consideration.
Agreement Conditions and Execution
Where the Manager or Council has approved an outdoor patio encroachment
application, the Mayor and Clerk are authorized to execute the outdoor patio
encroachment agreement and any amendment thereto provided such are in
accordance with this policy and said agreement is satisfactory to the City
Solicitor.
Outdoor patio encroachment agreements and amendments thereto shall be in a
form approved by the City Solicitor and unless otherwise approved by the City
Solicitor, each outdoor patio encroachment agreement shall, as applicable,
include provisions that:
a) any necessary building permits have been obtained prior to installation;
KITCHENERPage 2 of 4 February 2011
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POLICY NUMBER: I-1205
SUBJECT: OUTDOOR PATIOS – ENCROACHMENT AGREEMENT
b) the regular patio seasonruns from the date of the agreement until October
st
31 of each year with extensions as approved by the Manager of
Maintenance and Operations;
c) insurance and indemnification provisions will be to the satisfaction of the
Risk Manager from the Waterloo Region Municipalities Insurance Pool
excepting that only $2,000,000 in general liability insurance shall be
required;
d) the right to encroach will cease upon 24 hours’ notice from the City that
removal of the encroachment is required;
e) the licensee ensures that its patio complies with relevant legislation and
municipal by-laws including the Ontario Health Protection and Promotion
Act, the Liquor Licence Act, and the Accessibility for Ontarians with
Disabilities Act;
f) items within the patio may be positioned by operators at their discretion
provided that any concerns of the Manager respecting placement be
addressed to his/her satisfaction, necessary clearance is maintained
around any Siamese connections to the satisfaction of the City’s Fire
Department, the occupancy load is not exceeded, means of egress is
maintained, and at least 10% of seats remain accessible;
g) sidewalk signs or other obstructions not be placed within the minimum 1.2
metre (3.94 feet) wide clear pathway provided for egress from the
business;
h) the licensee keeps the patio and surrounding areas free from garbage or
refuse including cigarette butts, hand sweeps the sidewalk in the area of
the patio, and in the case of a divided patio shall also be responsible for
cleaning and clearing the sidewalk area between the different portions of
the patio;
i) where planter boxes are used as a barrier that the preferred plantings will
be of bright colours;
j) the licensee keeps the sidewalk abutting the patio free and clear of
obstructions;
k) the licensee imposes a dress code requiring shoes and shirts and display
a dress code sign where the Manager of Licensing has determined that
the dress code has not been appropriately imposed;
l) the licensee ensures that patron behaviour is reasonable and where
needed will hire the necessary security personnel to monitor patron
behaviour;
m) the licensee not allow patrons to loiter within and around the patio limits;
n) a licensee who has not had a patio before and does not abide by a
monthly ratio of alcohol sales to gross refreshment sales (including food
and other sundries) of 50% or less and any licensee directed by the
Manager of Licensing to do so shall require that foods and beverages to
be consumed within the patio area are served using plastic/acrylic/paper
glasses, dinnerware and cutlery;
o) the licensee ensures bicycles or animals are not attached to the patio
barriers;
KITCHENERPage 3 of 4 February 2011
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POLICY NUMBER: I-1205
SUBJECT: OUTDOOR PATIOS – ENCROACHMENT AGREEMENT
p) the licensee posts a copy of the Downtown Licensed Establishments Code
of Conduct next to the liquor licence for the patio if one is obtained;
q) the licensee posts a sign inviting comments on the patio to be made to the
City in a location satisfactory to the Manager of Licensing;
r) the licensee ensures that open umbrellas do not protrude beyond the patio
in a manner that creates a hazard in the opinion of the City’s Manager of
Maintenance Operations;
s) the licensee ensures that any umbrellas on the patio do not have any
advertising on them other than the business name and/or logo;
t) the items within the patio including furniture be to the satisfaction of the
City’s Manager;
u) the licensee complies with any restrictions placed upon the operation of
the patio by the City;
v) the licensee not be permitted to use chain link fencing and that the use of
fencing that is black or of a colour that matches the colour scheme of the
business while providing a contrast to pavement surfacing materials be
stated as a preference;
w) if smoking is permitted, the operator shall make reasonable efforts to the
satisfaction of the Manager to minimize adverse impacts on neighbouring
businesses and pedestrians; and
x) that failure to comply with a direction of the Manager of Licensing to
correct any violation of the agreement within 48 hours may result in the
right to encroach ceasing.
KITCHENER Page 4 of 4 February 2011
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