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Executive Order 7MM Simplifies Local Approvals Process for Outdoor Dining and Sale of Goods

May 13, 2020

In anticipation of Connecticut’s first phase of reopening on May 20, Governor Lamont signed Executive Order 7MM on May 13, allowing restaurants and retailers to reopen while promoting social distancing by moving their businesses outside via a simplified, expedited local approvals process. Without this Order, businesses wanting to expand their food and beverage services or retail sales outside would need local zoning approval, which in many towns would require a robust application to a local commission and a potentially-lengthy public hearing process. Instead, the Order allows applicants to obtain approvals within 10 days of submitting a complete application to the “Local Enforcement Official” (LEO) -- i.e., the person typically responsible for zoning enforcement, such as the zoning enforcement officer.

The What

As with prior Executive Orders modifying land use laws and regulations, Order 7MM supersedes and modifies anything in a specified list of chapters of the General Statutes, and their corresponding state and local regulations, that conflicts with the Order.

The Order applies to “Outdoor Activities,” which include outdoor food and beverage services and displays of goods that end no later than 11 p.m. on Fridays and Saturdays, and no later than 9 p.m. all other days of the week. Outdoor bars or the sale of liquor for consumption on-site independent of the sale of food is explicitly prohibited and, while the Order exempts live entertainment from Outdoor Activities, it does not prohibit independent approval of it in accordance with local regulations.

The Where

Accessory uses like Outdoor Activities typically are allowed only in certain zones and on the same lot as the principal use (i.e., the restaurant or retailer). The Order expands where Outdoor Activities may be approved as an accessory use. Those areas now include:

  • Any location where food or beverages are served or goods are sold, although municipalities will not be required to approve the sale or service of liquor in any zone that does not already permit it.
  • Parking lots or on-street parking spaces regardless of minimum parking requirements, which the Order specifically suspends.
  • Any nearby lot, street face or yard, whether abutting the principal use or not, as long as it is in a commercial zone or includes a commercial use and the owner has consented in writing.
  • Public sidewalks or pedestrian rights-of-way subject to a six-foot clearance for pedestrian use.
  • All or a portion of any local public road or vehicular right-of-way.

To the extent there exists any law or regulation prohibiting Outdoor Activities within a street or right-of-way under the jurisdiction of the state Department of Transportation (DOT), the Order suspends those provisions, too, and opens the door for permitted Outdoor Activities within those areas subject to DOT and local traffic authority approval.

The How

Outdoor Activity applicants will be required to submit to the LEO a drawing or illustration, roughly to scale, depicting the outdoor area that is to be used and what the business proposes to place or build in that area, and a narrative explaining noise, waste management, odor, light pollution and environmental impacts and how they will be managed. The Order suspends all state and local application fees, and removes the requirement that an applicant provide other documents that are typically required for similar applications, such as plans stamped by a licensed engineer, a traffic study and a stormwater management plan. However, the Order does allow an LEO to request additional information if he or she finds that a proposed Outdoor Activity is reasonably likely to cause significant health, safety, or environmental impacts.

Of note, Order 7MM eliminates the requirement that an existing restaurant obtain a patio or extension of use liquor permit from the Department of Consumer Protection before operating an Outdoor Activity if the restaurant complies with: (1) the other provisions of the Order; (2) the rules for outdoor dining issued by the Department of Economic and Community Development; and (iii) any local requirements imposed on outdoor dining and liquor sales in compliance with the Order. The restaurant must also abide by a variety of other conditions, including a requirement that the restaurant only serve all liquor tableside (no standalone bars) in connection with food prepared on-site or at an adjacent food truck. The Order imposes additional conditions on caterers and private clubs.

Once a complete application has been submitted, the LEO has 10 days to notify the applicant of his or her decision by approving, approving with conditions consistent with the Order, or denying the application. If the LEO fails to act within that timeframe, the application will be deemed approved and the applicant can proceed with its proposed Outdoor Activity. The automatic approval provision does not apply to Outdoor Activities proposed for vehicular rights-of-way.

Applicants can appeal from the LEO’s approval or conditional approval within seven days of their receipt of notice of the decision. The appeal process for opponents or neighbors appears to be unchanged.

The Aftermath

As with the prior land use-related Executive Orders, the application of Order 7MM will likely result in unanticipated issues and questions. That being said, the Order is a commendable effort by the Governor’s office to address the current -- and perhaps too-long -- timeline for local zoning approval while recognizing the importance of state and municipal oversight of these activities, especially during a pandemic. By simplifying and expediting the permitting process for Outdoor Activities and waiving the fees for these applications, restaurants and retailers will be able to reopen sooner and more inexpensively than anticipated.

With that said, we offer two additional thoughts. First, keep in mind that Executive Order 7MM is temporary in nature and will expire once the state of emergency expires (currently scheduled for September 9, 2020) or is otherwise lifted. Whether this means that all approvals issued pursuant to the Order will expire on that same date remains to be seen. Second, the potential influx of applications and the short timeline allowed for LEO review may overwhelm municipal staff.  There will, of course, be bumps in the road. We suggest being patient and working with staff to assemble and submit a comprehensive application that will answer all potential questions and concerns at the outset. This approach will ensure that things move along as swiftly as possible.

Order 7MM imposes new and different requirements on a municipal approvals system that has been in place for years. We are here to help guide you through this and any other questions that may arise. Stay well.

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