FAQ: Outdoor Seating and Merchandising

To obtain a permit, the establishment must:

• submit an application and plan for outdoor seating that meets the standards outlined in the town code;
• provide clear demarcation between seating areas and sidewalk space reserved for pedestrian travel;
• sign an indemnity agreement.

Outdoor seating permits are reviewed by town staff to ensure they are compliant with town code. The review includes approval by staff representing the Planning and Economic Development Division, Public Space and Sustainability Division and Historic District Commission. 

The application is reviewed for compliance with town code and the Hillsborough Historic District Design Standards, including items such as the maintenance of a clear 6-foot pedestrian path, a 5-foot distance from sidewalk obstructions and use of commission-approved materials. Staff does not make determinations of approval based on design aesthetics or personal preferences. Staff are not empowered to grant waivers to code requirements. 

The commission considers outdoor fixtures to be temporary structures, and they can be approved as a minor work permit. These can be approved by staff if within the standards that establish materials, height, etc. Outdoor fixtures that fall outside of the standards must be presented to the commission for approval.

As provided in the town code, enforcement tools include a written notice of violation, citation, fines and a suspension or revocation of the seating permit including removal of outdoor seating furniture and fixtures from the public right of way.

The ordinances that allow and establish requirements for outdoor seating and merchandizing are part of the Code of Ordinances, also known as the town code. 

To modify the code, an ordinance that specifies the change must be adopted by majority vote of the Hillsborough Board of Commissioners, also known as the town board. The board is empowered to modify the code at its discretion but typically follows the process below:

• Issue identification — an issue or problem is identified that can be addressed in the town code (the concern might be raised by board members, staff, advisory board members or constituents).
• Research and drafting — information is gathered about the issue as deemed appropriate, which may include research by staff or consultants, reviewing similar ordinances in other communities or various forms of public input or feedback. Staff drafts appropriate text for the board to consider. The proposed text may undergo changes based on discussions with board members and stakeholders. 
• Adoption — the board adopts the ordinance after it decides it has enough information to make an informed decision.

In the specific circumstance of outdoor seating and merchandising, there were numerous issues that were identified, and the board attempted to mitigate them by modifying the town code. These issues included but were not limited to:

• Complaints regarding pedestrians walking in and out of dining areas and confusion as to where the pedestrian path was located and whether it was properly navigable.
• Concerns that food and alcohol were being served and/or being brought from one restaurant or pub’s dining area to another.
• Concerns that dining tables and chairs were migrating across the full width of the sidewalk during peak food and beverage service days and times.
• Concerns that sidewalk sandwich board signs were not in uniform locations in the streetscape and were causing trip hazards.
• The desire for some downtown retailers to be able to use widened sidewalk areas to display merchandise or bring more activity to their storefronts.

Staff researched private use of public space ordinances from other jurisdictions and discussed with staff and downtown organizations from those jurisdictions the implementation and enforcement of such ordinances. Staff then drafted ordinances, and the Hillsborough/Orange County Chamber of Commerce and its merchants committee reviewed and commented on them and suggested modifications.

After the town board reviewed the ordinances and asked questions, it approved them with a recommended future enforcement date to give merchants and food and beverage proprietors the opportunity to think about and plan for their use of public space. Town staff partnered with the chamber to publicize the new ordinances and to get business owners moving toward making outdoor seating applications.