By Executive Order 7OOO issued at the end of last week, the previous executive order regarding outdoor dining and retail activities was extended through November 12, 2020. As you may recall, the previous Executive Order, EO 7MM, cleared the way for simplified and expedited municipal approvals of outdoor dining and retail for existing businesses. The full order (EO 7 MM) is attached.
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 reasonably necessary and can impose reasonable conditions to address public health, safety and the environment. No fees can be charged for an application filed under the order.
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 required by the permitting official to reasonably protect public health and safety invite 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.
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 federal transportation officials.
Denials 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 (if the zoning commission is also the legislative body of the town, the appeal would be to the planning commission).
The statute 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 EO can only be in connection with outdoor dining.
What it doesn’t do:
Authorize live entertainment unless previously authorized in the space or authorized by existing local regulations and operated in accordance with social distancing rules.
The regulation does not suspend or modify other kinds of permitting requirements including a requirements to obtain a 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.
As is the case with Executive Order 7MM, it is anticipated that many of the executive orders that directly affect municipalities may be extended, modified, renewed or amended to remain effective after the expiration of the current declaration of emergency on September 9. We will provide further updates as they become available.
For more information or if you have any specific questions, please contact us.