§ 17.8.5. Downtown commercial district—Use restrictions.
In the downtown commercial district, certain uses are permitted, permitted with a use permit, or prohibited in certain locations as follows.
A.
Classification of Interior Spaces. There are three classes of interior commercial space in the downtown commercial district:
1.
Type I Space. Type I space is a retail floor in a building or a portion of a building which:
a.
Faces or abuts a street or street segment listed below; or
b.
Faces a mall, plaza or parking lot which faces or abuts a street or street segment listed below.
Type I space excludes a retail floor in a building which meets the criteria listed in subsections A.1.a. or A.1.b. of this section, solely because of driveway access to such a street or street segment.
Type I spaces are located on the following streets and street segments within the downtown commercial zoning district: Orinda Way; Avenida De Orinda (both sides of the eastern half and the north side of the western half); Camino Sobrante; Santa Maria Way; Moraga Way; Bryant Way (between Moraga Way and Davis Road); Brookwood Road (between Moraga Way and Camino Pablo except for the unit near the garage entrance in the Theatre Square Complex); Camino Pablo (east side between Highway 24 and Moraga Way).
2.
Type II Space. Type II space is a retail floor which is not in a building or a portion of a building which faces or abuts any of the streets and street segments listed in subsection A of this section or a building or portion of a building which faces or abuts a mall, plaza or unenclosed parking lot facing or abutting any of the streets and street segments listed above. Examples include but are not limited to the rear side of buildings along the west side of Orinda Way, Camino Pablo's west side south of Brookwood Road, and Brookwood Road west of Camino Pablo.
3.
Type III Space. Type III space is any other space in the downtown commercial district.
Section 17.8.5 Graphics
Section 17.8.5 Graphics
B.
Classification of Commercial Uses. There are three general classes of uses permitted in the downtown commercial district.
1.
Retail sales and restaurants, restaurants with take-out* and restaurants with outdoor dinning* (Class A uses);
* Take-out restaurants and outdoor dining are subject to additional regulations set forth in subsection I of this section.
2.
Personal care, personal development services (excluding health care), and business and automotive services, including service stations, if the use will tend to create substantial pedestrian interaction with surrounding businesses (including but not limited to beauty parlor, barber shop, fitness center, dry cleaners, travel agency, dance, music and martial arts studio) and retail financial institutions such as banks, savings and loans, credit unions and free-standing automatic teller machines (Class B uses); and
3.
Office uses compatible with a village atmosphere such as medical and professional offices, real estate sales and financing (Class C uses).
C.
Uses Not Requiring a Commercial Use Permit. Except as otherwise provided in subsection G of this section, in all spaces, Class A uses are allowed without a commercial use permit. Class B uses are allowed without a commercial permit in Type II and III spaces; and Class C uses are allowed without a commercial use permit in Type III spaces. Where a single space has multiple frontages which, considered separately, would be classed as more than one space type, the entire space is subject to the rules applicable to the higher type, e.g., Type I rather than Type II. Where a single space is proposed to be divided into more than one space, creating one or more new and less-restrictive spaces, a commercial use permit is required.
D.
Commercial Use Permit Requirement.
1.
Class B Uses. A use permit under Chapter 17.36 is required for a Type B use in a Type I ground floor space.
2.
Class C Uses. A use permit under Chapter 17.36 is required for a Class C use in Type II spaces. A Class C use is prohibited in Type I space.
3.
Other Uses. Certain uses described in subsection G of this section require a use permit under Chapter 17.36.
4.
Extended Hours. A commercial use permit is required for any use which operates before five a.m. or after eleven p.m.
E.
Use Prohibition. All uses not specifically permitted in this Chapter 17.8 are prohibited.
F.
Space Utilization Chart. The following chart illustrates the provisions of Sections 17.8.5C. and D.
Prime Ground Floor Secondary Ground Floor Other Than Ground Floor Throughout the DC District "I" "II" "III" "A" Uses allowed allowed allowed "B" Uses allowed with use permit allowed allowed "C" Uses not allowed allowed with use permit allowed G.
Supplemental Restrictions for Specific Uses. The following specific uses are also permitted in the downtown commercial district, subject to the contents of the chart above and subject to obtaining a commercial use permit under Chapter 17.36. Those uses marked by an asterisk are subject to additional regulations set forth in Section 17.8.5H.:
1.
Adult business;*
2.
Animal sales and services;
3.
Bar and tavern;
4.
Commercial recreation and entertainment;
5.
Convenience market;
6.
Convenience market at a service station;*
7.
Farmer's market;
8.
Game center;*
9.
Liquor store;
10.
Live entertainment;*
11.
Maintenance and repair services;
12.
Outdoor sales;*
13.
Service stations;*
14.
Vehicle sales and services;
15.
Visitor accommodations;
16.
Ancillary retail uses.*
* Uses marked by an asterisk in subsection G. of this section are subject to additional regulations set forth in subsection H. of this section.
H.
Supplemental Restrictions for Specific Uses. The following uses are permitted in the downtown commercial district subject to particular restrictions for such uses as described below and subject to obtaining a commercial use permit under Chapter 17.36.
1.
Adult Businesses.
a.
Purpose.
i.
In adopting these provisions, the City Council recognizes that certain types of adult businesses possess certain objectionable operational characteristics which, if such uses are allowed to concentrate, will have adverse effects upon the character of such areas and adjacent neighborhoods. The City Council further recognizes that locating adult businesses in close proximity to establishments frequented by minors will cause the exposure of minors to adult material that may adversely affect such minors due to their immaturity. Additionally, the City Council recognizes that, while certain adult entertainment enjoys limited protection under the First Amendment to the United States Constitution, substantial numbers of citizens of the city are offended by the public display of sexually-oriented material.
ii.
Special and limited regulation of adult businesses, consistent with the First Amendment rights of such uses, is therefore necessary. This will ensure that the adverse effects of adult businesses will not contribute to the blighting or downgrading of the DC district in which they are permitted and the downgrading of surrounding neighborhoods; will not adversely affect minors; and will not offend those citizens of the city who do not wish to be exposed to sexually-oriented material.
b.
Location of Adult Businesses. No adult businesses, including adult bookstores, adult movie theaters, and massage establishments, shall be located:
i.
Within four hundred (400) feet of any R district;
ii.
Within three hundred (300) feet of the boundaries of a parcel of a real property site occupied by a public or private school, a religious assembly facility that conducts religious education classes for minors, or a park and recreation facility;
iii.
Within six hundred (600) feet of any other adult business; or
iv.
On the ground level of a building.
c.
Public Display of Certain Matter Prohibited. No business shall display or exhibit any material depicting private anatomical areas or sexual activities in such a way as to be visible by persons outside the building in which the adult business is located.
2.
Convenience Market at a Service Station.
a.
The area for nonautomotive retail sales within a service station shall be completely enclosed and no larger than forty (40) square feet.
b.
A service station convenience market shall not be within the immediate vicinity of a church or hospital or within six hundred (600) feet or less of a school, public playground or nonprofit youth facility, as measured pursuant to the rules of the Department of Alcoholic Beverages.
c.
No variance may be granted for the requirements in subsections (H)(2)(a) and (H)(2)(b) of this section.
3.
Game Centers. The following supplemental regulations shall apply to the operation of game centers, including mechanical or electronic games or any other similar machine or device.
a.
Purpose. The intent of these regulations is to control the location and hours of operation of game centers so as not to allow school children to play the games during school hours nor to encourage minors to congregate in areas close to commercial establishments that sell alcoholic beverages.
b.
Permit Required. A commercial use permit shall be required to install, operate or maintain four or more mechanical or electronic games. The permit is valid only for the number of games specified; the installation or use of additional games requires a new or amended permit. The permit shall be permanently and conspicuously displayed.
c.
Duration and Renewal of Permit. Initially, the permit shall be valid only for one year. Thereafter, the Community Development Director may renew the permit for periods of not more than two years. The procedure for renewal is the same as that for the initial application, and the same factors considered for the initial application shall be considered for the renewal.
d.
Adult Manager. At least one adult manager shall be on the premises during the time a game center is open to the public.
e.
Hours of Operation for Minors Under Eighteen Years of Age. No game center owners, manager or employees shall allow a minor under eighteen (18) years of age to play a mechanical or electronic game machine during the hours of public schools in the district in which the center is located are in session, or after nine p.m. on nights preceding school days, or after ten p.m. on any night. It is the responsibility of the owner or manager of the game center to obtain a current schedule of school days and hours.
f.
Locational Criteria. A game center shall not be permitted within three hundred (300) feet of a public or private school site or the boundary of an R district, or within five hundred (500) feet of a liquor store, a cocktail lounge, tavern or bar. The distance shall be measured in a straight line from the main public entrance to the game center to the property line of the school site, the district boundary, or the main public entrance of the liquor store or cocktail lounge, as the case may be.
g.
Restrictions. The Planning Commission may impose reasonable restrictions on the physical design, location, and operation of a game center in order to minimize the effects of noise, congregation, parking, and other nuisance factors that may be detrimental to the public health, safety and welfare of the surrounding community.
4.
Live Entertainment. The following regulations shall apply to any use offering scheduled live entertainment, as defined, more than three times per calendar year:
a.
Exits not limited to emergency use only shall not be opposite an R district adjoining the site.
b.
A use permit shall establish conditions ensuring that no litter problem will exist.
c.
A use permit for live entertainment shall apply only to the type of entertainment approved, and a different type of entertainment shall require approval of a new use permit.
d.
A noise analysis specifying areas affected and sound proofing or other mitigation that will be employed to eliminate excessive noise exposure on adjacent property shall be submitted with a use permit application.
5.
Outdoor Sales. Outdoor sales specified in subsection (H)(5) of this section are allowed with a commercial use permit.
a.
Permanent outdoor storage and display of merchandise, materials or equipment, including display of merchandise, materials and equipment for customer pick-up;
6.
Service Station.
a.
All repair work shall be conducted within a building. No outside storage of parts, equipment or vehicles which have been damaged or dismantled completely or partially, is permitted.
b.
Activities permitted in a service station include tire sales, installation of mufflers, exhaust and suspension systems, electronic tune-ups, oil/lubrication and filter replacement, wheel alignment, tire rotation and balancing, battery installation or charging, hose replacement, belt replacement, carburetor adjustment, installation and repair of brakes, auto radio and electronics installation and service, alarm installation, or air conditioning or heater service.
c.
Activities prohibited in a service station include other major repair activities such as engine overhauls involving body and fender work, painting and undercoating.
7.
Ancillary Retail Use. An ancillary retail use is permitted in the downtown commercial district if a noticed hearing is held under Chapter 17.42 in conjunction with the application for a commercial use permit and findings of fact are made to support each of the following criteria:
a.
The existence of the ancillary retail use will not significantly and adversely alter the impact and the character of the primary retail use,
b.
The ancillary use will not adversely affect the use of more than twenty (20) percent of the existing floor area,
c.
The ancillary use will not create a significant adverse impact on parking and pedestrian and vehicular traffic,
d.
The ancillary use will not adversely impact any of the policies set forth in Section 17.8.1.
I.
Additional Regulation for Uses Not Requiring a Commercial Use Permit.
1.
Outdoor Dining. Outdoor dining is allowed with an outdoor dining permit.
a.
The following regulations apply to all outdoor dining permit applications:
i.
The operator shall furnish tables, chairs, umbrellas, and portable heaters (outdoor dining furniture) as necessary.
ii.
Outdoor dining furniture shall not be secured to public streetlights, trees, or other furniture.
iii.
No outdoor dining furniture may be located at a street intersection within a triangular area formed by the street curb lines and their projections and a line connecting them at points forty (40) feet from the intersection of the projected curb lines. In cases where curbs do not exist, the edge of street pavement shall be used for measuring purposes.
iv.
Outdoor dining furniture shall meet the following standards:
(A)
Tables and chairs shall be made of a safe, sturdy, durable material such as wrought iron, wood, steel, or cast aluminum.
(B)
No plastic tables or chairs and no vinyl tablecloths are permitted.
(C)
All tables and chairs shall be commercial grade and manufactured for outdoor commercial use.
(D)
Tables shall be square, rectangular or round to seat two to four people.
(E)
All furniture shall be properly maintained and cleaned regularly.
v.
No umbrella signage is permitted.
vi.
At least seven feet ground clearance shall be provided under umbrellas.
vii.
If portable heaters are used, they shall be located a minimum of two feet from the pedestrian zone.
viii.
The outdoor dining area shall be maintained in a clean and safe condition at all times.
ix.
All Americans with Disabilities Act (ADA) requirements shall be met.
b.
The following regulations apply to applications for outdoor dining located in the public right-of-way:
i.
All requirements of subsections I.1. of this section must be met;
ii.
Approval of a revocable encroachment permit per Chapter 12.08 must be obtained;
iii.
Furniture must be located immediately in front of the business it serves or shall have the consent of the businesses in which the outdoor dining area is abutting;
iv.
Tables shall be fastened to the ground, in a manner acceptable to the City Engineer;
v.
Outdoor dining furniture, except for the tables, shall not be left in the public right-of-way during non-business hours;
vi.
Outdoor dining areas shall remain on the same side of the pedestrian zone along public sidewalks not wide enough to accommodate outdoor dining areas on both sides of the pedestrian zone unless there is a ten-foot separation between dining areas;
vii.
A two-foot vehicle buffer zone between the curb and the outdoor dining area or the pedestrian zone shall be maintained.
viii.
A minimum pedestrian zone of four feet and six inches shall be maintained.
ix.
Outdoor dining areas shall not cause the pedestrian zone to encroach into the radius of a door swing.
x.
Outdoor dining furniture shall not encroach into the vehicle buffer zone or the pedestrian zone.
2.
Take-out restaurants are allowed with a take-out restaurant permit.
a.
The following regulations apply to all take-out restaurant permit applications.
i.
Identifiable containers and napkins shall be used for all carry-out food, and all litter resulting shall be promptly removed.
ii.
A trash receptacle shall be provided near each public restaurant exit unless there is an existing trash receptacle within twenty-five (25) feet of each exit. If in the public right-of-way, the type of trash receptacle shall be subject to approval by the Public Works Department.
iii.
The business owner shall keep the area in front of the restaurant clean and litter free and ensure that the trash receptacle does not overflow. In the event that receptacles in the public right-of-way overflow and are emptied by the city, the applicant shall be charged the cost of emptying the receptacle.
iv.
The applicant must provide documentation showing that the requirements for off-street parking in Section 17.16.4 of the Orinda Municipal Code are met.
v.
Walk-up service is allowed, provided access is not directly to the public right-of-way.
vi.
A restaurant which offers food and beverages, or either one, for sale to a customer in a motor vehicle for consumption off-site is prohibited.
J.
Prohibition of Specified Uses.
1.
Commercial Marijuana Land Uses. Commercial marijuana land uses are a prohibited use in the downtown commercial district.
2.
Outdoor Marijuana Cultivation. The outdoor cultivation of marijuana is a prohibited use in the downtown commercial district.
(Ord. 07-07 §§ 2—7; Ord. 02-03 §§ 13, 14, 33 (part); Ord. 99-5 § 2 Exh. A (part); Ord. No. 09-01, §§ 4, 5, 5-19-09; Ord. No. 11-04, § 1, 5-3-11; Ord. No. 17-05 , § 2(Att. A), 9-5-17)