§ 165-94. Regulations governing certain accessory structures and uses., Article XIII. Supplementary Regulations Governing Certain Uses, Chapter 165. Land Use and Development, Part II. General Legislation, Code of Ordinances, Wharton

Accessory structures and uses in residential districts. No accessory building or structure shall be built on any lot on which there is not a principal building or structure.

(1)

Accessory structures or uses shall not be located in the required front yard or within the front half of the side yard of any residential zone and may be erected anywhere within the required rear yard, except as provided herein.

(a)

In all residential zones, no accessory structure or use shall be located within five feet of a side or rear property line, provided that patios and decks shall conform with the minimum side and rear yard requirements of the zone in which they are located, further provided that accessory structures, other than patios and decks, which are greater than 150 square feet in area but no more than 325 square feet in area shall be set back minimally 10 feet from side and rear property lines, and accessory structures which are greater than 325 square feet in area shall be set back minimally 15 feet from side and rear property lines.

(b)

Accessory structures shall be set back minimally 10 feet from the principal building.

(c)

Lightposts, mailboxes, fences, signs and retaining walls shall be permitted within the required front yard of any residential use. Off-street parking is also permitted in a front yard, restricted to the driveway area. A maximum dimension of 20 feet wide is permitted for a residential driveway.

[Amended 12-20-1999 by Ord. No. O-20-99; 10-17-2005 by Ord. No. O-20-05]

(d)

A driveway permit shall be required for the construction, alteration or expansion of a driveway in all residential districts. The Borough's Zoning Officer shall have the authority to review all driveway permits. The fee for such permits shall be $25.

[Added 12-20-1999 by Ord. No. O-20-99]

(2)

No accessory structure or use in a residential zone shall exceed a height of 15 feet and 1 1/2 stories, except as provided in § 165-90C.

(3)

No accessory structure or use shall occupy an area greater than 10% of the area of the rear yard.

(4)

When an accessory structure or use is attached to the principal building, it shall comply in all respects with the requirements of this chapter applicable to the principal building or use.

(5)

In the case of a through lot, no accessory structure or use shall encroach upon that 1/4 of the lot depth nearest each street upon which the lot has frontage.

(6)

No accessory structure shall be used for human habitation.

Accessory structures and uses in nonresidential districts. No accessory building or structure shall be built on any lot on which there is not a principal building or structure.

(1)

Accessory structures or uses shall not be located in the required front yard of a nonresidential zone, except that off-street parking spaces shall be permitted, but in no case shall said parking lot or portion thereof be permitted closer than 15 feet from the street line.

(2)

Accessory structures or uses shall not be located within eight feet of a side or rear lot line. Accessory structures shall be minimally 15 feet from the principal building.

(3)

No off-street loading area or loading facility shall be permitted in a front yard.

(4)

No accessory structure or use in a nonresidential zone shall exceed a height of 15 feet and 1 1/2 stories, except as provided in § 165-92C.

(5)

In any nonresidential zone, when an accessory structure or use is attached to the principal building it shall comply in all respects with the requirements of this chapter applicable to the principal building or use.

(6)

No accessory structure or use shall occupy an area greater than 15% of the area of the rear yard.

Private garages in residential zones. Private garages shall be permitted as accessory uses in all residential zones, either as detached structures or as part of the main building, for the storage of no more than three automobiles which shall be owned by the occupants of the main building. Not more than one commercial vehicle, owned by the occupants of the main building, which shall not exceed 6,000 pounds in gross weight, shall be stored in said garage.

Swimming pools and tennis courts. (See also § 277-4.)

[Amended 12-20-1999 by Ord. No. O-20-99]

(1)

Swimming pools and tennis courts shall not be located within 10 feet of a property line nor closer to a street line than the rear wall of the dwelling to which they are accessory uses.

(2)

Swimming pools and tennis courts shall be suitably fenced in accordance with the Borough requirements as set forth in Subsection E below and the following: The edge of the pool shall be set back a minimum of 10 feet from all property lines, and no part of the pool shall be nearer to any street line than the rear wall of the main building which is located nearest to the street nor closer to the rear or side wall than the maximum depth of the pool.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

Fences and walls.

(1)

No fence or wall shall be erected, altered or constructed in any residential zone which shall exceed six feet in height above ground level, except that no fence exceeding four feet in height shall be permitted in the front yard. Chain link fences are not permitted in front yards.

[Amended 10-17-2005 by Ord. No. O-20-05]

(2)

No fence or wall shall be erected, altered or constructed in any nonresidential zone which shall exceed eight feet in height above ground level.

(3)

Notwithstanding the above provisions, if it is demonstrated that a restraining wall of a height greater than that set forth in Subsection E(1) and (2) above is necessary, said retaining wall shall be terraced in four-foot increments to enable suitable plantings to be installed along the retaining wall.

(4)

Notwithstanding the above provisions, no fence or wall shall be erected, altered or constructed in any zone which shall violate the provisions set forth regarding sight triangles.

(5)

Fences surrounding the perimeter of tennis courts shall be exempt from the above requirements. Said fence shall not exceed 12 feet in height above ground level and shall not be closer than 15 feet to any side or rear property line nor be located in any required front yard.

(6)

The finished side of a fence shall face adjoining properties. Fence posts that are unfinished and any other structural component of the fence shall be installed facing the subject property rather than an adjoining property.

Signs. Signs shall be regulated in accordance with Article XV, Signs.

Office of resident professional.

(1)

An office of a resident professional shall not exceed 30% of the floor area of the building in which it is located.

(2)

An office of a resident professional shall have a maximum of two employees and one professional and shall provide four parking spaces in a double-width driveway.

Child-care center facilities. Application for a child-care center as a permitted accessory use shall comply with the following:

(1)

A child-care center shall be permitted to occupy as an accessory use of a portion of a building which is occupied as a principal permitted use in all nonresidential zones. This use shall be available to the occupants of the building and may also be available to others, provided that:

(a)

The facility is licensed by the New Jersey Department of Human Services.

(b)

A minimum of 150 square feet of outdoor play area per child shall be provided. Play areas shall be permitted in the rear and side yards only and shall be enclosed by a fence at least four feet in height and landscaped and screened from adjoining properties.

(c)

The area and bulk requirements applicable to the zone in which the site is located shall be complied with.

(d)

No more than 15% of a building shall be occupied as a day-care center.

(e)

No additional parking shall be required.

Outdoor dining. Outdoor dining/outdoor cafe shall be permitted in all zones where eating establishments are permitted as a permitted use.

[Amended 8-25-2003 by Ord. No. O-17-03]

(1)

Definitions. As used in this subsection, the following terms shall have the meanings indicated:

EATING AND DRINKING ESTABLISHMENT: A commercial establishment where food and drink (including alcoholic beverages) are prepared and served in a ready-to-consume state, excluding, however, a fast-food restaurant and a snack bar or refreshment stand at a public or community swimming pool, playground or park operated in conjunction with and incidental to such recreational facility for the sole convenience of its patrons.

OUTDOOR DINING AREA: A dining area with seats and/or tables located outdoors of an eating and drinking establishment or other retail food establishment, and which is located entirely outside the walls of the subject building; enclosed on two sides or less by the walls of the building with or without a solid roof cover; or enclosed on three sides by the walls of the building without a solid roof cover.

RETAIL FOOD STORE: Any establishment where the principal business is the sale of foods and beverages to customers in a ready-to-consume state, whether served for immediate consumption at tables or sold in disposable containers/wrappers to walk-in customers for takeout.

SIDEWALK: An improved pedestrian surface that is typically located adjacent to a roadway.

SIDEWALK CAFE: An outdoor dining area located in a public sidewalk or right-of-way that is associated with an eating and drinking establishment or retail food store on a contiguous parcel.

TEMPORARY USE: A use established for a fixed period of time with the intent to discontinue such use upon the expiration of such time. Such uses do not involve the construction or alteration of any permanent structure.

(2)

Permit required.

(a)

No person shall operate an outdoor dining area/sidewalk cafe in the CBD Central Business District, B-1 Neighborhood Business District and B-2 Regional Business District in the Borough of Wharton without first obtaining an outdoor dining/sidewalk cafe permit and satisfying all of the requirements of this chapter.

(b)

For property in the MB Mixed Business District, no annual permit shall be required. This zone district, which encompasses a twenty-two-acre redevelopment area, will be developed in a comprehensive and integrated manner and is physically separated from the lower density residential areas of the Borough, thereby negating the need for an annual permit.

(c)

Permits shall allow outdoor dining areas and sidewalk cafes to operate between April 1 and November 30. When not operational, all furniture and umbrellas shall be removed and stored within the confines of a building for the season.

(3)

Application. Each applicant shall submit and file an application with the Borough Zoning Officer, together with three copies of a development plan (as described below) and a specified fee. The application shall set forth:

(a)

The name, address and telephone number of the applicant and property owner, and written authorization of the owner of the property in question, and the street address and block and lot number of the property in question.

(b)

A sketch containing a scale drawing clearly illustrating the number, type of materials, location of all tables, chairs, umbrellas, planters, awnings, lighting, electrical outlets (if any) or other furnishings intended to be located in the outdoor dining area/sidewalk cafe. The scale drawing shall also illustrate the following:

[1]

The location of any doors leading from the restaurant to the outdoor dining area/sidewalk cafe. No such door may be obstructed in any manner;

[2]

The dimension and location of the unobstructed space permitting passage of pedestrian traffic around or through the outdoor dining area/sidewalk cafe, clearance between tables and location of food preparation and service areas;

[3]

An illustration of the enclosure or protective barrier separating the outdoor dining area/sidewalk cafe from pedestrian or vehicular movement;

[4]

The location of all fire hydrants, utility poles or other fixtures permanently located in the outdoor dining area/sidewalk cafe or on the sidewalk or other areas within 50 feet of the outdoor dining area/sidewalk cafe; and

[5]

The type and location of any proposed outdoor lighting.

(c)

A statement of the seating capacity of the existing eating establishment and the proposed seating capacity of the outdoor dining area;

(d)

A statement indicating the number of parking spaces serving the existing restaurant.

(4)

Application review procedure.

(a)

The Zoning Officer will review the application for completeness and compliance with the terms of this chapter. If the application is complete, the Zoning Officer will act upon the same within 10 business days of the submittal of the application or within 10 business days after the application is declared complete. If the application is not complete, the Zoning Officer will notify the applicant in writing within 10 business days of the submittal of the specific deficiencies of the application. The Zoning Officer may refer the application to the Construction Official, Chiefs of the Bureaus of Police and Fire, the Health Officer, the Municipal Engineer and Planner for their review and recommendation, whereupon the time for all of the aforementioned actions shall be increased to 15 business days.

(b)

If the application complies with the ordinance, the Zoning Officer shall issue a permit, which shall be valid for one year from the date of issuance.

(c)

Acceptance of the permit by the applicant shall represent consent to allow the Departments of Health, Fire, Police and Building of the Borough to inspect the outdoor dining area/sidewalk cafe for continued compliance with the terms, conditions and regulations of this chapter.

(5)

Regulations applicable to the CBD, B-1, B-2 and MB Districts.

(a)

No permit shall be issued hereunder unless the applicant shall demonstrate adequate pedestrian movement at all times. A minimum four-foot-wide area of unobstructed paved surface will be available for pedestrian movement, including the unimpeded passage of handicapped individuals, around or through the outdoor dining area or sidewalk cafe.

(b)

No tables, chairs or other equipment shall be attached, chained or in any manner affixed to any tree, post, sign, curb or sidewalk, or property of the Borough. All tables and chairs must be constructed of sufficient weight to not be affected by windy conditions.

(c)

Outdoor music is permitted, subject to the Borough's Noise Ordinance.

Editor's Note: See Ch. 196, Noise, Art. II, General Noise Regulations.

(d)

No outdoor cafe shall be open for business prior to 9:00 a.m. nor remain open for business after business hours and closing of the eating/drinking establishment, but no later than 12:30 a.m. All persons occupying the outdoor dining area/sidewalk cafe shall vacate the same at the close of business hours for the establishment.

(e)

The Borough shall not require additional parking for outdoor dining area/sidewalk cafe seating, provided that the number of seats in the outdoor dining area or sidewalk cafe does not exceed 30% of the total number of seats in the eating and drinking establishment, and further provided that any such establishment may install up to six outside tables without it affecting the parking standard. The Borough parking standard shall be applied to any seating which exceeds this calculation.

(f)

Each establishment is responsible for keeping the area of the outdoor dining/sidewalk cafe and adjacent walks and streets free and clear of any debris or litter occasioned by the facility. Areas must be cleaned as needed, as well as at the time the business is closed and at the beginning of each business day.

(g)

No signs shall be permitted in the area of the outdoor dining area/sidewalk cafe except for signs on the awnings complying with the Sign Ordinance of the Borough of Wharton.

Editor's Note: See Art. XV, Signs, of this chapter.

(h)

No refuse containers shall be permitted on the sidewalk.

(i)

Alcoholic beverages may be served outdoors in accordance with the alcoholic beverage control licensing requirements of the State of New Jersey.

(j)

The perimeter of the area may be defined and delineated by an enclosure such as live potted plants or temporary railings on the sidewalk, when space is adequate, to define the area and limit the ability of litter to blow off the premises. The enclosure shall define the outdoor dining area/sidewalk cafe and separate it from the adjacent sidewalk. The portable barrier shall not exceed five feet in height.

(k)

Awnings and outdoor umbrellas may not be less than seven feet above the adjacent sidewalk and cannot extend more than one foot beyond the enclosure, as provided above.

(l)

Any open flame lighting fixture shall be permitted only upon the approval of the Fire Official.

(m)

No vending machines of any kind are permitted on the exterior of any building operating an outdoor dining area/sidewalk cafe.

(n)

Tables, chairs and umbrellas shall be uniform and complementary in color, materials and style. No picnic-style tables are permitted.

(6)

The MB District encompasses a twenty-two-acre redevelopment area which is physically separated from lower density residential areas of the Borough and adjoins the Rockaway River. In recognition of the unique features of this site, the following special provisions area applicable:

(a)

Outdoor dining may be located on a deck, patio or promenade structure.

(b)

Outdoor dining areas may be covered by a roof or other shelter.

(c)

Enclosures for outdoor dining areas may consist of canvas, glass or other light materials.

(d)

All-weather outdoor dining shall be permitted; appropriate heating devices may be used.

(7)

Insurance required.

[Amended 8-16-2004 by Ord. No. O-22-04]

(a)

In the event that the area permitted for outdoor dining is in the Borough of Wharton's right-of-way, then no permit required by this chapter shall be issued until the applicant shall have first filed with the Zoning Officer a comprehensive general liability policy issued to the applicant by a public liability insurance company authorized to do business in the State of New Jersey in the amounts specified. Such insurance policy shall name the Borough of Wharton as additional insured with respect to the operation and maintenance of the outdoor cafe in the following amounts: Bodily injury, each person $300,000; each accident $1,000,000. Property damage, each person $300,000; each accident $1,000,000.

(b)

The insurance coverage required by this section shall at all times be maintained for the full amount and shall contain a clause obligating the company issuing same to give not less than 30 days' written notice to the Borough Clerk before cancellation or amendment of any of the terms thereof. The cancellation of any such policy shall have the immediate effect of suspending the permit to operate the outdoor cafe until a new policy complying with the provisions of this section is filed with the Zoning Officer and a letter confirming the new effective date of the permit is issued by the Zoning Officer.

(8)

Indemnification required. In the event that the area permitted for outdoor dining is in the Borough of Wharton's right-of-way, then no permit required by this chapter shall be issued until a statement is filed with the Zoning Officer agreeing to indemnify and hold harmless the Borough of Wharton from any and all claims, damages, judgment costs or expenses, including attorney’s fees, which may be incurred or be required to pay because of any personal injury, including death, or property damage suffered by any person or persons as a result of or related in any way to the operation and maintenance of the outdoor cafe for which the permit is issued.

[Amended 8-16-2004 by Ord. No. O-22-04]

(9)

Revocation or suspension of permit.

[Amended 8-25-2003 by Ord. No. O-17-03]

(a)

Any permit issued hereunder is issued solely as a revocable permit and is subject to revocation or suspension by the Zoning Officer for failure to comply with this chapter or for violation of any applicable federal, state, county or municipal law, regulation or ordinance. It shall be unlawful for any person to operate an outdoor cafe after the suspension or termination of the applicable permit.

(b)

In addition to the powers of suspension and revocation set forth, the Borough reserves the right to modify, suspend or revoke any license on 10 days' written notice if the Borough determines that pedestrian operation of the outdoor dining area/sidewalk cafe or any other health, safety or welfare issued of the Borough of Wharton violates this chapter.

(10)

Alcoholic beverage license. An applicant holding an alcoholic beverage control license pursuant to the laws of the State of New Jersey shall have the responsibility to cause such license to be amended to include the outdoor cafe for the purpose of serving alcoholic beverages therein.

(11)

Removal of material. No permit shall be issued unless the applicant agrees at the end of the license period, or in the event that the license is temporarily or permanently suspended or revoked, to vacate at his own cost and expense the sidewalk space and remove any property placed thereon. Failure to do so on five days' written notice shall grant the Borough the right to remove any property on the sidewalk. The applicant shall be required to reimburse the Borough for the cost of removing and storing the same.

(12)

Additional provisions.

(a)

All outdoor dining areas/sidewalk cafes in the Borough shall be subject to inspection by the health, fire, police and construction officials for compliance with applicable regulations.

(b)

Temporary uses and outdoor activities such as festivals, fairs, carnivals and the like shall be classified as temporary outdoor activities and shall be coordinated through the Zoning Officer, Health Official, Police and Fire Departments for approval. Such events shall be subject to the approval of the aforementioned Borough officials as to parcel size, adequate access/egress and off-street parking, control of traffic, noise, glare, dust and sanitary concerns, and the absence of undue adverse impact on surrounding properties. The rescheduling of rain-out days shall be coordinated with the Zoning Officer. No improvements shall be required on the property occupied by the temporary use. The site shall be clean and well maintained during the duration of the temporary use. The following information shall be provided to the Zoning Officer:

[1]

Name and address of applicant.

[2]

Date or dates and hours during which the temporary use will be conducted.

[3]

A description of the temporary use activity.

[4]

Location of land (block and lot) upon which the temporary use will be held or conducted.

[5]

Names and addresses of concessionaires.

[6]

A description of the off-street parking, pedestrian and vehicular circulation, and sanitary facilities which will be available for use on the premises at the time of the temporary use activity.

[7]

Proof of adequate public liability insurance for the event.

Home occupation.

(1)

A home occupation shall be incidental to the use of a dwelling unit for residential purposes. The area set aside for a home occupation shall not exceed 30% of the total floor area of such residence, provided that in no event shall more than 500 square feet of the floor area of the dwelling unit be used in connection with a home occupation or for storage purposes in connection with a home occupation.

(2)

Only members of the immediate family permanently residing on the premises shall be employed in the home occupation.

(3)

A home occupation may be open to the public between 9:00 a.m. and 5:00 p.m. but shall not be open on Sundays or legal holidays.

(4)

No more than one home occupation shall be permitted within any single dwelling unit.

(5)

A home occupation shall be carried on wholly within the principal building. No home occupation nor any storage of goods, materials or products connected with a home occupation shall be allowed in accessory buildings or attached or detached garages, driveways, walkways or yards.

(6)

Merchandise shall not be displayed or offered for sale either within or outside of the residence.

(7)

There shall be no change in the outside appearance of the dwelling or premises or any visible evidence of the conduct of a home occupation. No advertising display signs shall be permitted.

(8)

No equipment or process shall be used in a home occupation which creates noise, vibration, glare, fumes or odor detectable to the normal senses off the property. No equipment or process shall be used which creates visual or audible electrical interference in any radio or television receiver, off the premises or causes fluctuations in line voltage off the premises.

(9)

The use shall not generate additional pedestrian or vehicular traffic. Visitors, customers or deliveries shall not exceed those normally and reasonably occurring for a residence, including not more than two business visitors an hour and eight a day and not more than two deliveries of products or materials a week.

(10)

The home occupation shall not involve the use of commercial vehicles for delivery of materials to or from the premises, other than one vehicle not to exceed 3/4 ton owned by the resident of the dwelling, which shall be parked in an adequate off-street parking area.

(11)

The use shall not require additional off-street parking spaces for clients or customers of the home occupation.