Last week, the General Assembly passed and the Governor signed “An Act Concerning the Provision of Outdoor Food and Beverage Service by Restaurants.” As part of Halloran Sage’s continuing efforts to inform our clients of significant changes in the law, we are writing to clarify what this Act does and does not do.
This law codifies some of the provisions of Governor Lamont’s prior Executive Orders, including Executive Orders 7OOO and 7MM, which cleared the way for simplified and expedited municipal approvals of outdoor dining and retail for existing businesses. The full text of the legislation is available here. The new law allows the approval processes created by the Executive Orders to continue in effect until March 31, 2022.
What it does:
It defines outdoor activities as outdoor food and beverage service and the display of goods (“Outdoor Activities”) related to existing businesses and provides that those uses are permitted regardless of whether they are prohibited by local zoning regulations. Zoning regulations that might limit the location of an area for an Outdoor Activity such as setback requirements or minimum parking are suspended.
A simplified fast-track approval process is established requiring approvals by only zoning enforcement officials and building officials if building permits are required. Applicants for zoning permits are required to provide only a narrative of the use and a reasonably accurate drawing or illustration showing the use that need not be drawn by a civil engineer or architect. The enforcement official can require additional information that is reasonably necessary to consider the application and can impose reasonable conditions to address public health, safety and the environment. No fees can be charged for an application.
Applications are automatically approved if not acted on by the later of 10 calendar days from receipt of the application or 10 days after receipt of the additional materials requested by the permitting official to reasonably protect public health and safety and the environment.
Outdoor Activities must be permitted until at least 11:00 PM on Friday and Saturday and 9:00 PM on all other days but longer hours can be permitted by the zoning commission or combined planning and zoning commission or the chief elected official of the town. It is unclear whether the ability of the chief elected official to extend the hours only applies to all towns, or only those towns without zoning regulations.
Outdoor Activities can be located on neighboring properties if those lots either contain a commercial business or are zoned for commercial use and owner consent is provided.
Outdoor activities can be approved on sidewalks and streets if authorized by the municipality on town roads and sidewalks or the DOT on state highways or rights-of-way. Extension of any approval for use of a right-of-way owned or controlled by the state shall be contingent upon approval, as applicable, by the appropriate state transportation officials.
Denials or conditional approvals are not appealed to the ZBA but are, instead, subject to an expedited 7-day time to appeal to the zoning commission or planning and zoning commission or chief elected official of the municipality, as applicable. The statute does not indicate under what circumstances the appeal should be made to the chief elected official instead of the zoning commission or combined planning and zoning commission, but it may be intended to apply to the very small number of towns that have not yet adopted zoning regulations, No public hearing is required for such appeals.
The statutes regarding liquor licensing are modified to enable liquor service related to Outdoor Activities provided defined limited compliance with licensing requirements are met. Alcohol service permitted under the new law can only be in connection with outdoor dining.
As enacted, the bill only extends the streamlined outdoor dining approval process through March 31, 2022. If it were to be made permanent, additional legislative action would be required.
What it doesn’t do:
It does not authorize live entertainment unless previously authorized in the space or authorized by existing local regulations and operated in accordance with social distancing rules.
The statute does not suspend or modify other kinds of permitting requirements including a requirement to obtain an inland wetlands permit and does not modify the substantive provisions of the building code.
The order does not change the time or way a neighbor or opponent might appeal an approval.
Approvals under the executive order do not confer any grandfathered nonconforming use rights after the expiration of the emergency. Towns that consider amending their regulations to allow uses and structures contemplated by the executive order should determine whether or not they wish to have those uses and structures become permanent.