Can Cape May Regulate Outdoor Seating?

CAPE MAY – Mayor Chuck Lear opened the public hearing on the proposed outdoor seating ordinance March 21 by announcing that no vote would be taken at that meeting. 
The ordinance, for which the city set up a special committee in June 2016, represents an attempt to establish some municipal control over expanding temporary seating at food and beverage establishments.
While there was a focus in the discussion on the issues of the proposed fee structure and the relationship of outdoor seating regulation to the city’s perennial parking problem, the impetus for the effort also included a concern for public safety issues.
Those arise from the haphazard expansion of temporary seating during the peak tourist season.
Most who spoke on the ordinance agreed that some effort to ensure safety was necessary.
Jules Rausch, a member of the outdoor seating committee, provided a sense of the extent of that uncontrolled growth in seating that prompted the city’s actions.
According to Rausch, the committee looked carefully at a subset of nine restaurants that comprise 15 percent of the city’s total 63 establishments.
Using mercantile license information, the committee noted that the restaurants were approved for 582 seats.
During a survey of the nine establishments at the height of the tourist season, the number of seats in use was 1,066, an 83 percent increase over the approved limit, with 45 percent of the seats in use unapproved.
Late in the committee’s work during 2016, the previous city council enlarged the effort’s mission by adding responsibility for making recommendations on the city’s parking problem.
That new assignment established a link between temporary seating and resolution of the long-standing parking issues that many of the owners of food-and-beverage establishments decry.
For many, the link with parking was an attempt to put too much of the onus for the parking issue on the back of the food-and-beverage establishments.
Steve Miller, who owns several restaurants in the city, said that the city’s requirement, used by the outdoor seating committee, of one parking space for every four seats is “an artifact of suburban planning” and could not be used as a basis for calculating an appropriate fee structure for additional seating.
The draft ordinance built a fee structure around the average revenue for a parking space in the city and the ration of the city’s code regarding parking spaces per seat.
The fee structure was then adjusted to take into account differences between establishments that have a liquor license, those that do not have such licenses, and those that do and do not have seating surrounding a dining table.
At the top of that fee structure is a proposed price of $300 per seat, per year, for a restaurant that serves liquor and uses a dining table. The distance between what the ordinance proposes and what some establishment owners see as fair was illustrated by Carol Menz speaking as the owner of Aleathea’s. The establishment has dining and liquor.
Menz proposed a fee per seat of $35 rather than $300.
Restaurant owners and city officials recognize the fact that public demand is driving much of the growth in outdoor seating.
Both want to encourage and protect what tourists seek; however, Menz said that the fee structure was such that some owners might just say “no thanks” to the idea of additional seating outdoors.
Another controversial aspect of the proposed ordinance is the stipulation that revenue raised from the fees would go into a parking trust fund.
Zack Mullock, from the Chalfonte Hotel, objected to dedicating fees to a parking trust fund when the city has no concrete plans for the fund’s user.
“It is reasonable to ask what the money is for,” he said.
The debate over the link to the parking issue and the structure of the proposed fees took place within a context in which most speakers praised the diligence and hard work of the committee.
In the free flow of the discussion, Robert Fulmer, who owns a condominium behind the Beach Shack, brought up a concern that the ordinance is silent on the issue of noise from outdoor seating.
Some council members appeared to agree that the parking fund shouldn’t be a burden on establishments that want outdoor seating.
Resolving the parking issues is a concern for a wider spectrum of merchants and for the city residents as well.
Shane Meier said that the expense related to any parking solution should be shared by all and not disproportionately by the food and beverage industry.
Meier continues to seek additional support for his proposal to use land in the area where Jersey Central Power and Light is completing environmental remediation of the former gas plant site as a parking area for visitors.
Lear said the council welcomed the additional comments on the proposed ordinance.
City Solicitor Frank Corrado will take responsibility for drafting amendments to the ordinance based on the feedback, including extensive comments made at a recent city Planning Board meeting.
The amendments to the ordinance will be considered for adoption by the council at its April 18 meeting. Another public hearing on the amended ordinance is scheduled for May 2. At that time, the ordinance could be formally adopted by council.
2017 Budget
At the same meeting, the city adopted its 2017 budget. The public hearing on the zero-increase budget elicited no comments.
The current fund budget of $18.2 million leaves the local purpose tax rate at the same $.34 per $100 of assessed value.
The city benefits from a ratable base of approximately $2.8 billion. The 2017 budget calls for using $166,000 more in surplus funds, but Interim City Manager Neil Young says he is confident the surplus funds used will be replenished at the end of the budget year returning the fund balance to its $4-million level.
To contact Vince Conti, email vconti@cmcherald.com.