Bill Text: NJ S2809 | 2022-2023 | Regular Session | Introduced
Bill Title: Permits use of tents and other fixtures for outdoor dining on certain property.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2022-06-09 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S2809 Detail]
Download: New_Jersey-2022-S2809-Introduced.html
Sponsored by:
Senator DECLAN J. O'SCANLON, JR.
District 13 (Monmouth)
SYNOPSIS
Permits use of tents and other fixtures for outdoor dining on certain property.
CURRENT VERSION OF TEXT
As introduced.
An Act permitting the use of tents and other fixtures for outdoor dining on certain property and supplementing P.L.1975, c.291 (C.40:55D-1 et seq.).
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this P.L. , c. (C. ) (pending before the Legislature as this bill):
"Brewery" means a brewery operating under a brewery license pursuant to R.S.33:1-10.
"Distillery" means a distillery that has been issued, and is in compliance with, a distillery license pursuant to R.S.33:1-10.
"Food" means food that is cooked, prepared, sold, served, and consumed on the business premises.
"Outdoor space" means a patio or deck, whether covered or uncovered, a yard, a walkway, or a parking lot, or a portion of any such space, that is located on or adjacent to the business premises, which space is owned, leased, otherwise in the lawful control of the owner or operator of the business premises, or any space which is designated by a municipality or county for outdoor dining pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).
"Public sidewalk" means a sidewalk on the locally or county owned public right-of-way which is adjacent to the business premises, or a portion thereof.
"Special Ruling No. 2020-10" means Special Ruling No. 2020-10, issued by the acting director of the Division of Alcoholic Beverage Control on June 3, 2020.
2. a. Notwithstanding the provisions of any law to the contrary, the owner or operator of a restaurant, bar, distillery, or brewery may use outdoor spaces which they own or lease and which are located either on, or adjacent to, their business premises, as an extension of their business premises for the purpose of conducting sales of food and beverages.
b. The owner or operator of a restaurant, bar, distillery, or brewery desiring to utilize outdoor spaces as an extension of their businesses shall file an application with the municipal zoning officer that includes: (1) a plan, sketch, picture, or drawing that depicts the design, dimensional boundaries, and placement of tents, canopies, umbrellas, tables, chairs, and other fixtures of the outdoor spaces; and (2) a plan for the control of litter, the removal and storage of garbage, and the cleaning of fixtures and grounds. If a business premises' parking lot is used for the service and sale of either food or beverages, or both, the restaurant, bar, distillery, or brewery shall not encumber more than 75 percent of the lot's total parking spaces for such service and sale, unless the parking lot contains less than eight parking spaces, and shall maintain at least one handicapped parking space in the parking lot.
c. A municipality may require that an applicant provide one or more of the following: (1) written consent of the owner of the premises, if other than the applicant, (2) an insurance certificate naming the municipality as an additional insured, with general liability on an occurrence with a limit of liability of at least $1,000,000, with respect to losses arising solely from the operation of the outdoor dining facility, or (3) an indemnification agreement with the municipality with respect to losses arising solely from the operation of the outdoor dining facility.
d. (1) The zoning officer shall issue an approval to the applicant within 15 business days of the application being submitted and deemed complete provided that the applicant meets and abides by all qualifications and requirements of P.L. , c. (C. ) (pending before the Legislature as this bill), with the exception that the zoning officer may deny an application based on current violations of any other health, safety, fire, permitted use, or zoning regulation, or upon any applicable law permitting the denial of a zoning permit, that is not otherwise directly superseded by this section or Special Ruling No. 2020-10. An application under this section shall not be considered a variance under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).
(2) A municipality may deny, revoke, or temporarily suspend the permit of any applicant or permittee that violates, or is not in compliance with, any provision of this act or any provision of a law, ordinance, or regulation related to health, safety, fire, permitted use, zoning, or the consumption or control of alcoholic beverages not otherwise under the jurisdiction of the Division of Alcoholic Beverage Control, and may also deny, revoke, or temporarily suspend the permit of any applicant or permittee based on any action taken against the applicant or permittee by the Division of Alcoholic Beverage Control related to the division's enforcement of any law or regulation related to the consumption or control of alcoholic beverages under its jurisdiction.
(3) An appeal to any approval, denial, revocation, or suspension may be filed through the municipal clerk with the governing body of the municipality. The governing body, or its designee, shall conduct a hearing and render a decision within 30 days of the filing of the appeal. The governing body may designate a municipal official or an attorney licensed in the State of New Jersey to serve as a hearing officer in place of the governing body for the purpose of conducting a hearing pursuant to this subsection and rendering a decision.
Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to restrict the right of any party to obtain a review by any court of competent jurisdiction, according to law.
3. a. Notwithstanding the provisions of any law to the contrary, the owners and operators of restaurants, bars, distilleries, and breweries may use public sidewalks as an extension of their business premises for the purpose of conducting sales of food and beverages.
b. The owner or operator of a restaurant, bar, distillery, or brewery desiring to utilize public sidewalks as an extension of their businesses shall file an application with the municipal zoning officer that includes: (1) a plan, sketch, picture, or drawing that depicts the design, dimensional boundaries, and placement of tents, canopies, umbrellas, tables, chairs, and other fixtures of the public sidewalks; and (2) a plan for the control of litter, the removal and storage of garbage, and the cleaning of fixtures and public sidewalks.
c. A municipality may require that an applicant provide one or more of the following: (1) written consent of the owner of the premises, if other than the applicant, (2) an insurance certificate naming the municipality as an additional insured, with general liability on an occurrence with a limit of liability of at least $1,000,000, with respect to losses arising solely from the operation of the outdoor dining facility located on public sidewalks, or (3) an indemnification agreement with the municipality with respect to losses arising solely from the operation of the outdoor dining facility on public sidewalks.
d. (1) The zoning officer shall issue an approval to the applicant within 15 business days of the application being submitted and deemed complete provided that the applicant meets and abides by all qualifications and requirements of P.L. , c. (C. ) (pending before the Legislature as this bill), with the exception that the zoning officer may deny an application based on current violations of any other health, safety, fire, permitted use, or zoning regulation, or upon any applicable law permitting the denial of a zoning permit that is not otherwise directly superseded by this section or Special Ruling No. 2020-10. An application under this section shall not be considered a variance under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).
(2) A municipality may deny, revoke, or temporarily suspend the permit of any applicant or permittee that violates, or is not in compliance with, any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) or any provision of a law, ordinance, or regulation related to health, safety, fire, permitted use, zoning, or to the consumption or control of alcoholic beverages not otherwise under the jurisdiction of the Division of Alcoholic Beverage Control, and may also deny, revoke, or temporarily suspend the permit of any applicant or permittee based on any action taken against the applicant or permittee by the Division of Alcoholic Beverage Control related to the division's enforcement of any law or regulation related to the consumption or control of alcoholic beverages under its jurisdiction.
(3) An appeal to any approval, denial, revocation, or suspension may be filed through the municipal clerk with the governing body of the municipality. The governing body, or its designee, shall conduct a hearing and render a decision within 30 days of the filing of the appeal. The governing body may designate a municipal official or an attorney licensed in the State of New Jersey to serve as a hearing officer in place of the governing body for the purpose of conducting a hearing pursuant to this subsection and rendering a decision.
Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to restrict the right of any party to obtain a review by any court of competent jurisdiction, according to law.
e. Owners and operators of restaurants, bars, distilleries, or breweries desiring to utilize public sidewalks are subject to the following conditions: (1) a walking path not less than four-feet wide must be maintained on the public sidewalk at all times so as to not obstruct pedestrian traffic; (2) all fixtures shall be removed from public sidewalks at the conclusion of each day, if so required by the municipality; and (3) the municipality reserves the right to order the temporary suspension of outdoor dining and the removal of all fixtures from public sidewalks due to road or utility construction, predicted high winds or severe weather, predicted snow or ice storms, the need to remove snow or ice from the sidewalks, or any other public emergency that may arise.
4. Notwithstanding any provision of law to the contrary, the installation and continuous use of tents, canopies, umbrellas, tables, chairs, and other fixtures on private property or public property or right of way designated by a municipality pursuant to P.L.2021, c.15 and P.L. , c. (C. ) (pending before the Legislature as this bill), shall be a permitted use provided that the tent, canopy, umbrella, table, chairs, or other fixture conforms to all applicable provisions of the State Uniform Construction Code and Fire Prevention Subcode, which have been adopted by the Commissioner of Community Affairs pursuant to P.L.1975, c.217 (C.52:27D-119, et seq.). The permitted use of tents, canopies, umbrellas, tables, chairs, and other fixtures allowed by this section shall be limited to the timeframe encompassing the first day of April through the first day of December each year. Any administrative rule or regulation which limits the use of tents, canopies, umbrellas, tables, chairs and other fixtures to 180 days or less during the time frame encompassing the first day of April through the first day of December shall be inapplicable. Notwithstanding the foregoing, any administrative rule or regulation which governs the use of tents, canopies, umbrellas, tables, chairs, and other fixtures on private or public property or right of way designated by a municipality pursuant to P.L.2021, c.15 or P.L. , c. (C. ) (pending before the Legislature as this bill) for the time period encompassing the second day of December through the last day of March of the subsequent year shall not be impacted by P.L. , c. (C. ) (pending before the Legislature as this bill).
5. A public sidewalk or an outdoor space that is considered as an extension of a business premises for the purpose of conducting sales of food and beverages pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall be considered a portion of the premises which is open to the public for the purposes of section 5 of P.L.1999, c.90 (C.2C:33-27).
6. a. Notwithstanding any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) to the contrary, all other municipal ordinances pertaining to sanitation, property maintenance, noise, business days and hours of operation, and days and hours of service of alcoholic beverages shall apply, unless specifically suspended or modified by the municipality or specifically prohibited by the provisions of this section.
b. With respect to restaurants, bars, distilleries, and breweries operating in outdoor spaces pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), municipalities shall not prohibit or limit the days and hours of the outdoor service of food and beverages, including alcoholic beverages, except that municipalities may prohibit or limit operations for the hours after 10:00 p.m. and between 12:00 a.m. and 11:00 a.m. on Sundays through Wednesdays, and between 12:00 a.m. and 11:00 a.m. on Thursdays through Saturdays, with the exception that a municipal ordinance prohibiting or limiting the days and hours of indoor service of food and beverages, including alcoholic beverages, which was in effect prior to March 1, 2020 may be applied to the outdoor service of food and beverages, including alcoholic beverages, as a condition of the zoning approval pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).
c. A municipality may either prohibit or limit the days and hours of any live performances, including musical performances, and the playing or projection of any content from a recording, streaming service or television, cable or internet broadcasting service in outdoor spaces or on public sidewalks as a condition of the zoning approval pursuant to sections 2 and 3 of P.L. , c. (C. and C. ) (pending before the Legislature as this bill).
7. Nothing in P.L. , c. (C. ) shall be interpreted or construed as permitting or mandating the opening, expansion, or resumption of unlimited operations of a restaurant, bar, or brewery that is closed, whether permanently or temporarily, or operating subject to limitations on its operations, service, or hours, as a result of disciplinary or legal sanctions imposed by, or entering into a settlement agreement with, a court of the State of New Jersey, a municipal court, the New Jersey Department of Law and Public Safety, the New Jersey Division of Alcoholic Beverage Control, or a municipal governing body acting as a local alcoholic beverage control board, as applicable.
8. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) permits the use of State-owned right of way for the purposes of outdoor dining. Permits for the use of the State right of way may be issued upon application and approval of the New Jersey Department of Transportation. For the purposes of locally-owned roads that intersect the State highway system, setbacks from the State right of way line will be 50 feet from April 1 to October 31, and 100 feet from November 1 to March 31.
9. This act shall take effect immediately or upon the expiration of sections 1 through 8 of P.L.2021, c.15, whichever is later.
STATEMENT
This bill would permit the use of tents and other fixtures for outdoor dining on certain property.
The bill would allow the owners and operators of restaurants, bars, distilleries, or breweries to use outdoor spaces which they own or lease and which are located on, or adjacent to, their business premises, as an extension of their business premises for the purpose of conducting sales of food and beverages, including alcoholic beverages if so licensed. The bill defines outdoor spaces as including patios and decks, both covered and uncovered, yards, walkways, and parking lots, or a portion thereof. The bill would also allow the owners and operators of those establishments to use public sidewalks, as defined in the bill, as an extension of their business premises for that purpose, as well.
The bill requires owners and operators of those establishments seeking to utilize outdoor spaces or public sidewalks as extensions of their business premises pursuant to the provisions of the bill to file an application with the municipal zoning officer, including information concerning the use of the outdoor spaces or public sidewalks, as appropriate, pursuant to the requirements set forth in the bill.
The bill allows the use of tents, canopies, umbrellas, tables, chairs, and other fixtures on these premises as long as the tent, canopy, umbrella, table, chairs, or other fixture conforms to all applicable fire safety and construction code provisions. The bill specifies that these tents, canopies, umbrellas, tables, chairs, and other fixtures would be deemed a permitted use for the time period encompassing the first day of April through the first day of December of each year. The bill,
further clarifies that any administrative rule or regulation which governs the use of tents, canopies, umbrellas, tables, chairs, and other fixtures during the winter, specifically the time period encompassing the second day of December through the last day of March, would not be impacted by the provisions of the bill.
The bill is to take effect immediately or upon the expiration of sections 1 through 8 of P.L.2021, c.15, whichever is later. P.L.2021, c.15 was enacted on February 5, 2021, in part, to temporarily expand opportunities for restaurants, bars, distilleries, and breweries to provide outdoor dining in response to the COVID-19 public health emergency, and is to expire by its own terms. This bill would make several provisions of that law permanent
