AN ORDINANCE relating to sidewalk cafes and amending the City's Street Use and Land Use Codes, creating a new Section 15.16.012, repealing Section 15.16.030, and amending Sections 15.02.046, 15.04.015, 15.16.010, 15.16.040, 15.16.050, 15.16.060, 15.16.070, 15.16.080, 23.76.006.

WHEREAS, sidewalk cafes can complement available open space resources by activating sidewalks in areas of Seattle where commercial activity is allowed; and

WHEREAS, "eyes on the street" from patrons and responsible proprietors can enhance neighborhood safety and public perception of safety; and

WHEREAS, enjoyable public spaces advance Seattle's character and quality of life; and

WHEREAS, Seattle's procedures for authorizing sidewalk cafes associated with adjacent food-service establishments can be simplified with no significant loss of necessary oversight; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Section 15.02.046 of the Seattle Municipal Code, which section was last amended by Ordinance 121925, is amended as follows:

15.02.046 Definitions N through S.

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H. "Sidewalk cafe" means a portion of sidewalk areathe public right-of-way in which are placedtables and chairs are placed for the use of patrons while consuming food and/or beverages, including alcoholic beverages, served by a food-service establishment (as defined in Section 10.10.040 of Title 10) cafe, restaurant or tavern located on adjacent property.

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Section 2. Section 15.04.015 of the Seattle Municipal Code, which section was last amended by Ordinance 121276, is amended as follows:

15.04.015 Authorizing official.

A. The Director of Planning and Development may authorize the construction of a curb cut, a sidewalk cafe, or a structural building overhang, or reconstruction of an areaway in a public place under the Master Use Permit procedures of Chapter 23.76, particularly Section 23.76.006 B63, or removal of trees and vegetation located in an environmentally critical area under Chapter 25.09. An authorization for construction in a park drive, boulevard, or area under the jurisdiction of the Superintendent of Parks and Recreation identified in Appendix I or shown on the map as Appendix II is dependent upon (a) a description of the encroachment or use in the application for the Master Use Permit or the accompanying materials; (b) its identification as park drive, boulevard, or property under the jurisdiction of the Superintendent of the area to be used; (c) the written concurrence of the Superintendent; (d) payment of applicable fees; and (e) if there is a modification, written concurrence of the Superintendent thereto. Continuation of such uses after completion of construction is subject to compliance with the terms and conditions of this title; inspection and administration by the Director of Transportation or the Superintendent, as the case may be; and payment of an annual fee, if applicable.

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Section 3. Section 15.16.010 of the Seattle Municipal Code, which section was last amended by Ordinance 109740, is amended as follows:

15.16.010 Permit Required.

It shall beis unlawful to operate a sidewalk cafe without obtaining a street usewritten permit to do so from the Director of TransportationConstruction and Land Use, as provided in this chapter and Section 15.04.010. A street use permit to operate a sidewalk cafe shall not be transferred or assigned.

Section 4. A new section 15.16.012 is added to the Seattle Municipal Code to read as follows:

15.16.012 Permit Expiration, renewal, and revocation.

A street use permit for a sidewalk cafe expires when the adjacent food service establishment changes ownership, when the adjacent food-service establishment's permit expires, or if fees are not paid according to the provisions of Section 15.04.074 B. A street use permit for a sidewalk cafe is wholly of a temporary nature, vests no permanent rights whatsoever, and is revocable pursuant to SMC 15.04.070. The Director of Transportation may suspend or revoke the street use permit for a sidewalk cafe if an applicant violates this title, any implementing rules, or the terms and conditions of the permit.

Section 5. Section 15.16.030 of the Seattle Municipal Code, which section was last amended by Ordinance 120611, is repealed as follows:

15.16.030 Notification of surrounding tenants and owners.

The Director of the Department of Design, Construction and Land Use shall provide notice of receipt of an application for a sidewalk cafe permit in accordance with the notice provisions of the Master Use Permit Process, SMC Chapter 23.76.

Section 6. Section 15.16.040 of the Seattle Municipal Code, which section was last amended by Ordinance 118409, is amended as follows:

15.16.040 Terms and conditions.

A. The Director of TransportationConstruction and Land Use may issue a street use permit in accordance with Section 15.04.035 for use of a sidewalkportion of the right-of-way for a sidewalk cafe purposes in the event and to the extent that he or sheif the Director determines that:

1. The applicant is the owner or occupant of the adjacent property and operates afood-service establishment thereon that is permitted under Title 10 or by the Seattle-King County Director of Public Health or the Director's representative cafe, restaurant, or tavern thereon;

2. The proposed use for a sidewalk cafe would not unduly and unreasonably impair pedestrian passage to and fro by the publicin or on the right-of-way sidewalk for which the permit is sought and is consistent with any applicable standards established by the federal Americans with Disabilities Act; and allow

a. if located in the Downtown Urban Center as established in the Comprehensive Plan, at least six (6) feet of clear path of travel for pedestrian passage if the permit application is submitted after the effective date of the ordinance codified in this section (see Exhibit 15.16.040 A, Location of Sidewalk Cafe) and at least five (5) feet of clear path of travel for pedestrian passage for sidewalk cafes established before that date;

b. if located outside of the Downtown Urban Center as established in the Comprehensive Plan, at least five (5) feet ofclear path of travel for pedestrian passage (see Exhibit 15.16.040 A, Location of Sidewalk Cafe);

c. a wider clear path of travel for pedestrian passage than is required in subsections 2a and 2b when required by the Director of Transportation to facilitate the use of the sidewalk by pedestrians

3. The proposed sidewalk cafe would be located is included within a food-service establishment permit pursuant to Seattle City Code Chapter 10.10, or the Seattle-King County Director of Public Health or his or her representative, has otherwise authorized such a use of the area.

a. at least five (5) feet from alleys, bus zones, parking zones for handicapped persons, and commercial loading zones (see Exhibit 15.16.040 A, Location of Sidewalk Cafe);

b. at least five (5) feet from curb ramps or from the beginning of the corner curb radius where curb ramps do not exist, parking meters or pay stations, traffic signs, utility poles, fire hydrants, bike racks, and other street fixtures (see Exhibit 15.16.040 A, Location of Sidewalk Cafe);

c. at least three (3) feet from the curb in order to provide access to on-street parking when pedestrian passage is located between the sidewalk cafe and the food-service establishment (see Exhibit 15.16.040 A, Location of Sidewalk Cafe);

d. at least fifty (50) feet from a lot zoned RSL, SF, L1, L2, L3 or L4, and that does not have an RC designation, as shown on the Official Land Use Map, as these zoning designations are defined under Section 23.30.010 A of Title 23; and

e. at a distance farther than that required in 3a, 3b or 3c, based upon the Director of Transportation's determination that such additional distance is needed to facilitate the use of the sidewalk by pedestrians;

4. The applicant has obtained a certificate of approval for the sidewalk cafe from the appropriate Board or Commission when located in a Landmark District or Historic District subject to the provisions of Title 25;

5. The proposed sidewalk cafe is consistent with any applicable standards established by the federal Americans with Disabilities Act; and

6. The applicant has posted a notice of the application for the street use permit for the sidewalk cafe. The notice shall be clearly visible from the adjacent sidewalk and shall state that comments on the application may be sent to the Director of Transportation and will be considered in reviewing the application.

B. The Director of Transportation may require additional information from an applicant in accordance with Section 15.04.030, and may include in the street use permit such terms and conditions as he or shethe Director may deems appropriate including, but not limited to:

1. Design standards;

2.* Restrictions as to the number and placement of tables and chairs and as to the hours and dates of use;

3.* A requirement that the sidewalk cafe area be removedcleared when not in use as athe street use permit for a sidewalk cafe expires, or upon the order of the Director of Transportation or other appropriate City officer such as the Chief of Police or Fire Chief or their authorized representatives;

4.* Provisions that the permittees shall maintain the right-of-waysidewalk in a clean and safe

condition for pedestrian travel;

5.* A requirement that the applicant clear the right-of-waysidewalk as may be necessary to accommodate reasonable accessdeliveries to adjacent or other nearby properties and utilities;

6. A requirement that designs for platforms or other structures in the right-of-way, for which a separate permit from the Director of Transportation has been obtained, be certified by a registered professional civil engineer or architect;

7. A requirement that platforms or other structures in the right-of-way, for which a separate permit from the Director of Transportation has been obtained, be maintained in an as-built condition;

8.* Regulations upon lighting and illumination of the sidewalk cafe; limitations upon noise; and restrictions upon the placement of furniture or equipment used in connection with the sidewalk cafe;

9.* The posting of a surety bond in accordance with the provisions of Section 15.04.044 or establishment of an escrow account in accordance with the provisions of Section 15.04.042this title;

10.* If the sidewalk cafe causes a change in pedestrian travel patterns, appropriate repairs to the right-of-waysidewalk in the immediate vicinity in order to accommodate the change or to assure compliance with the federal Americans with Disabilities Act;

11.* Restoration of the right-of-way sidewalk upon completion of the use.

C. The Director of Transportation shall promulgate rules to implement this chapter. The rules may address the subjects identified in this section and other subjects the Director believes may aid in the implementation of this chapter.

D. Unless expressly authorized by the Director of Transportation pursuant to the street use permit for a sidewalk cafe, City no right-of-way surface pavement shall be broken or, no sidewalk surface disturbed, and no permanent fixture of any kind shall be installed in or on the right-of-way sidewalk area in connection with a sidewalk cafe.

E. Amplified sound is prohibited within the sidewalk cafe.

D. The Director of Construction and Land Use or the Director of Transportation may suspend or revoke the permission granted if an applicant violates this title, any implementing rules, or the terms and conditions of the permit.

Section 7. Section 15.16.050 of the Seattle Municipal Code, which section was last amended by Ordinance 109740, is amended as follows:

15.16.050 Liquor.

Liquor, as defined in RCW 66.04.0102416, as now existing or hereinafter amended, may be used and sold at a sidewalk cafe when authorized inby the street use permit;both the food-service establishmentuse permitand provided for in this chapter issued pursuant to Seattle Municipal Code Chapter 10.10, or by the Seattle-King County Director of Public Health or his or her representative; and by permit of issued by the Washington State Liquor Control Board, and not otherwise.

Section 8. Section 15.16.060 of the Seattle Municipal Code, which section was last amended by Ordinance 118409, is amended as follows:

15.16.060 Insurance

An applicant for a permit for a sidewalk cafe shall, prior to issuance of such a permit, provide and maintain in full force and effect while the permit is in effect, public liability insurance in an amount specified by the Director of Transportation sufficient to cover potential claims for bodily injury, death, or disability and for property damage, which may arise from or be related to the use of right-of-waysidewalk area for sidewalk cafe purposes, naming the City an additional insured.

Section 9. Section 15.16.070 of the Seattle Municipal Code, which section was last amended by Ordinance 118409, is amended as follows:

15.16.070 Indemnity.

The applicant or permittee shall agree to defend, indemnify, and hold harmless the City of Seattle, its officials, officers, employees, and agents against:

1. Any liability, claims, causes of action, judgments, or expenses, including reasonable attorney fees, resulting directly or indirectly from any act or omission of the applicant or permittee, its subcontractors, anyone directly or indirectly employed by them, and anyone for whose acts or omissions they may be liable, arising out of the applicant/permittee's use or occupancy of the public right-of-way; and

2. All loss by the failure of the applicant or permittee to fully or adequately perform, in any respect, all authorizations of obligations under the sidewalk cafe permit.The applicant for a sidewalk cafe permit shall execute and deliver to the City upon a form supplied by the Director of Transportation an agreement in writing and acknowledged by the applicant, forever to hold and save the City free and harmless from any and all claims, actions or damages of every kind and description which may accrue to, or be suffered by, any persons by reason of or related to the operation of such sidewalk cafe. In addition, such agreement shall contain a provision that the permit is wholly of a temporary nature, that it vests no permanent right whatsoever, that upon thirty (30) days' notice, posted on the premises, or by publication in the official newspaper of the City, or without such notice, in case the permitted use shall become dangerous or unsafe, or shall not be operated in accordance with the provisions of this title, the same may be revoked and the sidewalk cafe furniture ordered removed. Every such agreement, after it has been received in his or her office and numbered, and shall be filed with the City Clerk.

Section 10. Section 15.16.080 of the Seattle Municipal Code, which section was last amended by Ordinance 118409, is amended as follows:

15.16.080 Sidewalk Condition

The applicant shall comply with the terms and conditions of the sidewalk cafe permit issued, and shall maintain the right-of-way sidewalk in a clean and safe condition for pedestrian travel, and shall immediately clear the sidewalk area when ordered to do so by the Director of Transportation or other appropriate City officer such as the Chief of Police or Fire Chief or their authorized representatives.

Section 11. Subsection B of Section 23.76.006 of the Seattle Municipal Code, which section was last amended by Ordinance 122054, is amended as follows:

23.76.006 Master Use Permits required.

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B. The following decisions are Type I:

1. Determination that a proposal complies with development standards;

2. Establishment or change of use for uses permitted outright, temporary uses for four (4) weeks or less not otherwise permitted in the zone, and temporary relocation of police and fire stations for twelve (12) months or less;

3. The following street use approvals associated with a development proposal:

a. Curb cut for access to parking,

b. Concept approval of street improvements, such as additional on-street parking, street landscaping, curbs and gutters, street drainage, sidewalks, and paving,

c. Sidewalk cafes provided that Type II notice of application procedures shall be followed,

d. Structural building overhangs,

de. Areaways;

4. Lot boundary adjustments;

5. Modification of the following features bonused under Title 24:

a. Plazas,

b. Shopping plazas,

c. Arcades,

d. Shopping arcades,

e. Voluntary building setbacks;

6. Determinations of Significance (determination that an environmental impact statement is required) for Master Use Permits and for building, demolition, grading and other construction permits (supplemental procedures for environmental review are established in Chapter 25.05, Environmental Policies and Procedures), except for Determinations of Significance based solely on historic and cultural preservation;

7. Discretionary exceptions for certain business signs authorized by Section 23.55.042 D;

8. Waiver or modification of required right-of-way improvements;

9. Special accommodation pursuant to Section 23.44.015;

10. Reasonable accommodation;

11. Minor amendment to Major Phased Development Permit;

12. Determination of public benefit for combined lot development; and

13. Other Type I decisions that are identified as such in the Land Use Code.

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Section 12. By January 1, 2010, the Director of Transportation shall provide the City Council with a written report concerning sidewalk cafes. The report shall include the following information:

1. A list of all the street use permit applications for sidewalk cafes received by the Seattle Department of Transportation between November 1, 2008 and November 1, 2010. The list shall specify whether each permit application was approved, denied, or approved subject to changes requested by a City department. The specific reason(s) for each denial and any requested changes to individual permit applications shall also be described.

2. The number and content of the public comments and complaints about sidewalk cafes received by the City between November 1, 2008 and November 1, 2010.

Section 13. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ___________________, 2008, and signed by me in open session in authentication of its passage this _____ day of ___________________, 2008. _________________________________ President __________of the City Council

Approved by me this ____ day of _____________________, 2008. _________________________________ Gregory J. Nickels, Mayor

Filed by me this ____ day of __________________________, 2008. ____________________________________ City Clerk

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