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HomeMy WebLinkAbout6795 ORDINANCE NO. 6795 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AMENDING CHAPTER 12.60 OF THE AUBURN CITY CODE RELATING TO RIGHT-OF-WAY PERMITS WHEREAS, Chapter 12.60 of the Auburn City Code (Chapter 12.60 ACC) establishes the rules and regulations for controlling and enforcing uses of the City Right- of-Way to assure that proposed uses are consistent with public health, safety, and welfare of the community, and that any harm or nuisance which may result from a proposed use is prevented; and WHERAS, changes are being proposed to the City fee schedule and permit structure that promote equity and economic prosperity while also supporting City cost recovery goals; and WHEREAS, revisions are needed to Chapter 12.60 ACC to support the proposed changes to the fee schedule for 2021 and permit structure for Right-of-Way permits; and WHEREAS, additional revisions are needed to Chapter 12.60 ACC to address current permitting practices and to modernize portions of the code. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Amendment to City Code. Chapter 12.60 of the Auburn City Code is amended to read as shown on Exhibit A. Section 2. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this legislation. Ordinance No. 6795 DATE Page 1 of 2 Rev. 2020 Section 3. Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application of it to any person or circumstance, will not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Section 4. Effective date. This Ordinance will take effect and be in force on January 1st, 2021. INTRODUCED: OCT 1 9 2020 OCT 1 9 2020 PASSED: OCT 1 9 2020 APPROVED: ANCYr• ' 1 , MAY•R ATTEST: APPROVED AS TO FORM: Shawn Campbell, MMC, City Clerk Kendra Comeau, City Attorney Published:40*y 72-1 b D CJ./ Cr\i j Ordinance No. 6795 DATE Page 2 of 2 Rev.2020 Ordinance 6795-Exhibit A Page 1 of 8 Chapter 12.60 RIGHT-OF-WAY PERMITS 12.60.010 Purpose—Permit required. The purpose of this chapter is to establish minimum rules and regulations for controlling and enforcing right- of-way uses to assure that proposed uses are consistent with public health,safety,and welfare of the community,and that any harm or nuisance which may result from a proposed use is prevented. It shall be unlawful for anyone to make private use of any public right-of-way without a right-of-way use permit issued by the city,or to use any public right-of-way without complying with all provisions of a permit issued by the city,unless such private use falls within the designated exceptions set forth in this chapter.(Ord. 6125§ 1,2007;Ord.5784§ 1,2003;Ord.5298§ 1,1999;Ord.5042§ 1(Exh.D),1998;Ord.4767§ 1, 1995;Ord.3351 §2, 1978.) 12.60.015 Definitions. The following words and phrases,wherever used in this chapter,shall have the meanings ascribed to them in this section except where otherwise defined or unless the context shall clearly indicate to the contrary. A. "Abutting property"means and includes property bordering upon and contiguous to a right-of-way. B. "Applicant"means any person,company,corporation,enterprise,or entity applying for the issuance or renewal of a right-of-way use permit or any person,company,corporation,enterprise,or entity that has been issued a right-of-way use permit. C. "Application"means,for the purposes of this chapter,the collection of papers necessary to initiate a right- of-way use permit request,and shall include an application in the form approved by the city,and other submittals consistent with the purposes of this chapter. D. "Banner"means any pliable canvas,cloth,or synthetic sign material or holiday or festival decor such as garland or similar decor stretched over or across any right-of-way. E. "Community event or special event"means an event of a public nature sponsored or co-sponsored by the city of Auburn for the purpose of celebrating a particular holiday,festival,or other traditional commemoration, and may include carnivals,fairs,festivals,parades,or other similar short-term uses of rights-of-way. Ordinance 6795-Exhibit A Page 2 of 8 F. "Co-sponsored by the city of Auburn"means the city is joining—is willing to join—as an applicant; provided,however,the primary sponsor is still responsible for all right-of-way use permit paperwork,liability, and fees. G. "Private use"means use of the public right-of-way for the benefit of a person,partnership,group, organization,company,or corporation,other than as a thoroughfare for any type of vehicles,pedestrians or equestrians. H. "Right-of-way"means and includes streets,avenues,ways,boulevards,drives,places,alleys,sidewalks, landscape(parking)strips,squares,triangles,and other rights-of-way open to the use of the public,and the space above or beneath the surface of same.This definition specifically does not include streets,alleys,ways, landscape strips,and sidewalks which have not been deeded,dedicated,or otherwise permanently appropriated to the city for public use. I. "Sidewalk cafe"means a portion of a public right-of-way sidewalk-on which tables and chairs are placed for the use of patrons while consuming food and/or beverages served by a cafe or restaurant on abutting property. J. "Sidewalk display"means a display of goods and wares on a public right-of-waysidewallE for retail sale to the public by the owner or manager of a business upon abutting property,which products are being offered for sale inside the business. K. "Sidewalk vending unit or vending unit"means a movable cart or similar device that is operated from a fixed location on a public right-of-way from which food,beverages(excluding alcohol),flowers,plants,and/or merchandise are provided to the public with or without charge.The provisions of this chapter shall not apply to mobile caterers,generally defined as person(s)engaged in the business of transporting food and beverages in motor vehicles to residential,business,and industrial establishments pursuant to prearranged schedules,and dispensing items from the vehicles for retail sale to the personnel of such establishments. L. "Vending"means the commercial sale of food,beverages(excluding alcohol),flowers,plants,and/or merchandise only from a sidewalk vending unit upon public right-of-ways of the city of Auburn."Vending" does not include alcohol as defined in RCW 66.04.010,tobacco,firearms,munitions,or any article which a minor is prohibited by law from purchasing,or any materials restricted by the fire code from direct access or handling by the public.(Ord.6125§ 1,2007.) 12.60.020 Right-of-way use permit application process and fee. A. The city engineer or designee,herein referred to as"the city,"shall establish policies and procedures to administer the permit program. Ordinance 6795-Exhibit A Page 3 of 8 B. Applicants shall submit a complete application form to the city requesting the use of a specific location of right-of-way for a specific period of time. In addition to the information required in the application,the applicant may be required to submit, • ..- :• - -- ... • - •- --••,any documents the city deems necessary to perform an accurate evaluation of the right-of-way use permit application. C. Decisions regarding issuance,renewal,denial,or termination of any such permits shall be subject to insurance requirements,bond requirements,indemnification and hold harmless agreements,the capacity of the rights-of-way to accommodate the applicant's proposed facilities or use,evaluation of competing public interest,and other administrative details determined and administered by the city. D. As part of a complete right-of-way use permit application,the applicant shall submit to the city right of - . -- , '• - .•_ a non-refundable application fee,as set forth in the city of Auburn fee schedule, at the time of application_; •. :, - , •. - --- . • •••- - •- . • .- frermits maywill require additional fees,depending on the proposed use,to be paid,per the city of Auburn fee schedule,before the permit can be issued.All fees are non-refundable. E. If insurance is required as a condition of approval,the insurance guidelines in 12.66 ACCeittFpeliey shall apply unless otherwise established by the city. F. Applications that include parking,road,or sidewalk impacts,that,as determined by the City Engineer, require a parking plan,traffic control plan,or pedestrian detour plan,require an additional application fee per the city of Auburn fee schedule. G. If the applicant does not take action in good faith,the application will be considered abandoned after 180 days of non-action. HF. Conditions of approval will be identified during the city's review of the application and may include a certificate of insurance,indemnification and hold harmless agreement,traffic control plan,performance bond, time and use restrictions,video data,status reports,restoration of disturbed right-of-way features,contract for a uniformed police officer to provide required traffic control,other city permits such as building permits,or any other requirements the city deems necessary to protect the right-of-way and public health,safety,and welfare. (Ord.6125§ 1,2007;Ord.5298§ 1,1999;Ord.5042§ 1 (Exh.D),1998;Ord.5005§2,1997;Ord.4767§ 1,1995;Ord.4239 § 1,1987;Ord.3351 §3,1978.) 12.60.025 Right-of-way use permit types. There are four types of right-of-way use permits. A. Type A is a short-term permit for 14 days or less,which allows the applicant to display a banner at a specific location as described in ACC 12.60.030. Ordinance 6795-Exhibit A Page 4 of 8 B. Type B is a short-term permit for uses of less than 30 days as described in ACC 12.60.040. C. Type C is a long-term permit for uses of 30 days to five years as described in ACC 12.60.050. D. Type D is used for hauling or moving loads on city rights-of-way,as described in ACC 12.60.060,and can be short-term,less than 30 days,or long-term,30 days to five years.(Ord.6125§ 1,2007.) 12.60.030 Type A street banner permit. A. Other than where the city itself places a banner across a right-of-way,only organizations co-sponsoring community events or special events with the city may be entitled to apply for a right-of-way use permit for a banner;provided,that the co-sponsor shall meet all of the following criteria: 1. An Auburn-based organization; 2. Nonpolitical in nature; 3. A nonprofit organization(having obtained IRS certification as tax exempt under 26 U.S.C. 501(CC)(3))or government entity; 4. An organization that does not discriminate in regard to race,ethnicity,religion,color,gender,sexual orientation,national origin,creed,age,marital status,veteran status,disability status,or any other basis prohibited by federal,state,or local law. B. Qualified applicants may display temporary banner signs.These signs shall not advertise or promote the sale of any product,commodity,or service for which a person pays a fee except a nonprofit community event. C. In the event that there is a competing interest of qualified applicants for such a right-of-way use permit for a banner,the city shall give priority to community events.For organizations not advertising a community event,each qualified applicant may display banners for a maximum of two seven-day periods within any calendar year.In the event of a schedule conflict between a community event and another application,the community event shall take precedence. D. Banners shall conform to the city's standard detail for banners and shall be erected by the city on city- approved support standards at a city-designated location.(Ord.6125§ 1,2007;Ord.5784§2,2003;Ord.5298§ 1, 1999;Ord.5042§ 1 (Exh.D),1998;Ord.4767§ 1,1995;Ord.4106§ 1,1986.) 12.60.040 Type B short-term permit. A. Type B is a short-term permit for uses of less than 30 days. Ordinance 6795-Exhibit A Page 5 of 8 B. Type B permit uses include,but are not limited to,right-of-way closures for sidewalk sales,rallies,block parties,or other similar events andplacement of storage containers or dumpsters in the right-of-way when not otherwise authorized as part of a permitted construction activity. CD. Issuance of right-of-way use permits that involve downtown,community impacts,full street closures,or uses with policy implications shall require approval of the city engineer. DE. Applicant shall be an individual or organization that does not discriminate in regard to race,ethnicity, religion,color,gender,sexual orientation,national origin,creed,age,marital status,veteran status,disability status,or any other basis prohibited by federal,state,or local law.(Ord.6532§ 17,2014;Ord.6125§ 1,2007;Ord. 5298§ 1,1999;Ord.5042§ 1 (Exh.D),1998.) 12.60.050 Type C long-term permit. A. Type C is a long-term permit for uses of 30 days to five years. B. Type C permit uses include,but are not limited to, groundwater monitoring wells, landscaping,fences,awnings,canopies,balconies,underground storage tanks,bus shelters,underground or overhead facilities such as fiber optic cables or utility vaults except when a franchise applies,use of the right-of-way to paint or repair a building or to stage for construction unless provided for in a construction or development permit,sidewalk cafes and other outdoor seating,and sidewalk vending units. C. In the event a Type C permit involves a street,sidewalk,or parking closure,additional fees are required per the city of Auburn fee schedule. CD. Issuance of right-of-way use permits that involve downtown,community impacts,full street closures,or uses with policy implications shall require approval of the city engineer. D. For the purpose of determining permit fees,Type C permits are categorized as either surface encroachments or non-surface encroachments. Surface encroachments are uses occupying any portion of the right-of-way from ground level to 7-feet 5-inches above ground level,regardless if a portion of the utilized right-of-way is above or below this range.Non-surface encroachments are uses that do not occupy any portion of the area defined as a surface encroachment. E. Applicant shall be an individual or organization that does not discriminate in regard to race,ethnicity, religion,color,gender,sexual orientation,national origin,creed,age,marital status,veteran status,disability status,or any other basis prohibited by federal,state,or local law.(Ord.6532§ 18,2014;Ord.6125§ 1,2007.) Ordinance 6795-Exhibit A Page 6 of 8 12.60.060 Type D hauling permit. A. The city requires any person,company,corporation,enterprise or entity operating a vehicle over the state's legal load or size limit on the public rights-of-way to obtain a permit for overweight or oversize hauling. The permit shall mitigate impacts to said rights-of-way by addressing public safety,environmental,traffic, noise,unusual wear and tear,or other impacts to the rights-of-way. B. The city,with respect to rights-of-way within the city's jurisdiction,may restrict or prohibit the operation thereon of trucks or any other vehicles,except school buses,public transit and emergency vehicles,or may impose weight limits,determine haul routes for local trips,or place any other restrictions as may be deemed necessary,including when the city determines that any right-of-way would be seriously damaged or destroyed by climatic conditions,deficient structural integrity,or any other conditions if unrestricted use is continued. In the event the city determines the project,program,or activity for which the person,company,corporation, enterprise or entity is using said rights-of-way will create unusual wear and tear on the right-of-way,or significant impacts to public safety,the environment,traffic,and noise,and for all projects that require mitigation of hauling and related impacts within the city,the person,company,corporation,enterprise or entity using the right-of-way may request a right-of-way use permit,which identifies the specific restrictions, prohibitions,and conditions of use.In addition to the potential conditions listed in ACC 12.60.020(F),said permit may include conditions for mitigation necessitated by the impacts of the project,program,or activity, which shall include,but not be limited to,any mitigation set out in the contract or bid documents,or other review documents,or as may be otherwise required for said project,program,or activity. C. The city shall not,however,prohibit the use of any city street designated a part of the route of any primary state highway through any such incorporated city or town by vehicles or any class of vehicles or impose any restrictions or reductions in permissible weights unless such restriction,limitation,or prohibition,or reduction in permissible weights be first approved in writing by the department of transportation(RCW 46.44.080).(Ord. 6125§ 1,2007.) 12.60.070 Right-of-way use permit term, extension, renewal and termination. A. No permit term shall exceed five years unless it has been approved by the full council. B. The city has authority to grant a single 30-day extension to the applicant upon receipt of a written request, absent any known reasons for denial.Extensions of right-of-way use permits that involve downtown, community impacts,full street closures,or uses with policy or broad citywide implications shall require approval of the city engineer and may require additional fees. C. Once a permit has expired or been revoked,the permit is not eligible for renewal and the applicant must apply for a new permit if continued use of the right-of-way is desired.Only Type C permits may be renewed. Permit renewal requires a new,complete application as determined by the city to be submitted;however,if the Ordinance 6795-Exhibit A Page 7 of 8 complete application is submitted to the city prior to the permit expiration,the application fee will be waived. No permit shall be automatically renewed. D. All right-of-way use permits are wholly of a temporary nature,and vest no permanent rights whatsoever. E. Right-of-way use permits are approved for the location and applicant listed on the permit and cannot be transferred for another location or for another applicant unless first approved by the city. F. The city shall have the authority to restrict,suspend,or revoke a permit upon 30 days'notice;provided, however,the city shall have the authority to immediately suspend or revoke a permit without such notice in situations that present,in the city's determination,a health or safety hazard or constitute a public nuisance.The grounds for restricting,suspending,or revoking a right-of-way use permit shall include,but not be limited to: 1. Any other license or permit that the applicant is required to have for the same use as the right-of-way use permit is not acquired or is suspended,revoked,or canceled. 2. The applicant has violated or failed to meet any of the provisions of this chapter or is in violation of any other ordinances or regulations of the city relating to the use by the applicant for which the permit is applied for or issued. 3. The applicant has failed to meet the conditions of the permit. 4. The use for which the permit was approved has changed. 5. The permit was procured by fraud or misrepresentation of fact or was issued in error or on the basis of incorrect information supplied to the city. 6. The abutting property owner or legal representative withdraws consent in writing for a sidewalk vending unit.(Ord.6532§ 19,2014;Ord.6125§ 1,2007.) 12.60.080 Correction and discontinuance of unsafe, nonconforming, noncompliant or unauthorized conditions. A. Whenever the city determines that any condition on any right-of-way is in violation of,or any right-of-way is being used contrary to,any provision of this code or procedures adopted hereunder or other applicable codes or standards,or without a right-of-way use permit,the city may order the correction or discontinuance of such condition or any activity causing such condition. B. The city is authorized to order correction or discontinuance of any such condition or activities following the methods specified in procedures adopted pursuant to this code. Ordinance 6795-Exhibit A Page 8 of 8 C. The city shall also have all powers and remedies which may be available under state law,this code,and procedures adopted hereunder for securing the correction or discontinuance of any condition specified in this section. D. The city is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as the city determines appropriate: 1. Serving of oral or written directives to the permittee or other responsible person requesting immediate correction or discontinuance of the specified condition; 2. Serving of a written notice of violation,ordering correction or discontinuance of a specific condition or activity within 10 days of notice,or such other reasonable period as the city may determine; 3. In the event the permittee fails to correct or discontinue the condition or activity within the specified period of time after receiving notice,the city shall have the authority to remove the structure and the cost of removal shall become a lien against the private property adjoining the right-of-way where the structure was removed;provided,that private property is owned by the permittee.The lien so created shall be subject to foreclosure pursuant to the foreclosure laws of the state; 4. Revocation of previously granted permits where the permittee or other responsible person has failed or refused to comply with requirements imposed by the city related to such permits; 5. Issuance of an order to immediately stop work until authorization is received from the city to proceed with such work; 6. Any object or thing which shall occupy any right-of-way without a permit is declared a nuisance.The city may attach a notice to any such object stating that if it is not removed from the right-of-way within 24 hours of the date and time stated on the notice,the object or thing may be taken into custody and stored at the owner's expense.The notice shall provide an address and phone number where additional information may be obtained.If the object is a hazard to public safety,it may be removed summarily by the city. Notice of such removal shall be thereafter given to the owner,if known.This section does not apply to motor vehicles; 7. All expenses incurred by the city in abating the condition or any portion thereof shall constitute a civil debt owing to the city jointly and severally by such persons who have been given notice or who own the object or placed it in the right-of-way,which debt shall be collectible in the same manner as any other civil debt; 8. The city shall also have all powers and remedies which may be available under law,this code and procedures adopted hereunder for securing the correction or discontinuance of any conditions specified by the city.(Ord.6125§ 1,2007.)