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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 11/06/2001 - SECOND READING OF ORDINANCE NO. 158, 2001, AMENDIN AGENDA ITEM SUMMARY ITEM NUMBER: 12 DATE: November 6,2001 FORT COLLINS CITY COUNCIL STAFF: Stephen J. Roy/ John F. Fischbach SUBJECT: Second Reading of Ordinance No. 158,2001,Amending Sections 23-82 and 23-83 of the City Code Pertaining to Encroachments. RECOMMENDATION: Staff recommends adoption of the Ordinance on Second Reading. EXECUTIVE SUMMARY: Ordinance No. 158,2001,was unanimously adopted on First Reading on October 16,2001. At the time of First Reading, Councilmember Hamrick asked whether the previously proposed waiver of an encroachment permit fee for news racks should apply to all kinds of publications which might be offered on the news racks, regardless of whether they contain traditional speech, such as the Coloradoan or the Denver Post, or more commercial speech, such as the Thrifty Nickel. The proposed fee waiver has been eliminated. Ordinance No. 158, 2001, has been amended between First and Second Reading to set the fee for news racks and other constitutionally protected speech at the nominal amount of$10 so as to avoid any prior constraint concerns. ORDINANCE NO. 158,2001 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTIONS 23-82 AND SECTIONS 23-83 OF THE CODE OF THE CITY PERTAINING TO ENCROACHMENTS WHEREAS, the Council has determined that certain of the requirements contained in Sections 23-82 and 23-83 of the Code of the City of Fort Collins pertaining to the consent of adjoining fee owners should apply only to encroachments for the purpose of serving food and/or beverages for consumption within the encroachment area; and WHEREAS, the Council has further determined that these Code provisions should be clarified for the purpose of providing the City Manager with criteria for investigating applications for encroachments for wireless telecommunication, and for the purpose of safeguarding First Amendment protected speech. NOW, THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Sections 23-82 and 23-83 of the Code of the City of Fort Collins be and hereby are amended to read as follows: Sec. 23-82. Contents of application. (a) The application for a permit shall contain the following: (1) The applicant's name, address and telephone number; (2) The location of the proposed encroachment, obstruction or structure; (3) The type of encroachment, obstruction or other structure; (4) The purpose of the proposed encroachment, obstruction or other structure; (5) A statement that the applicant agrees to abide by the provisions of this Division. (6) A description of the proposed encroachment sufficient to fully inform the City Manager of the character and physical attributes of the encroachment as necessary for the City Manager to perform a complete and competent investigation of the application under the criteria contained in § 23-83(a). (7) The anticipated duration (term) of the proposed encroachment. (b) If the proposed encroachment is for the purpose of serving food and/or beverages for consumption within the encroachment area as an extension,accessory or complement to an adjoining business, the application shall also contain: (1) evidence of the applicant's ability and willingness to provide liability insurance insuring the city in a sum not less than one million dollars ($1,000,000.), proof of which insurance shall be provided to the city prior to issuance of the permit; and(2) a statement that the applicant is the fee owner of the real property directly adjoining the public property upon which the encroachment is sought,or,if the applicant is not the fee owner of such real property, then the adjoining property owner's written consent to the encroachment. Sec.23-83. Investigation of application information;fee;permit modification and revocation. (a) The application shall be made to the City Manager. The City Manager shall make or cause to be made an investigation of the information contained in the application and prior to the issuance of a permit. In order for an application for an encroachment for the purpose of serving food and/or beverages as referenced in Subsection 23-82(b)to be approved,the applicant for the proposed encroachment, obstruction or other structure must be the fee owner of the real property directly adjoining the public property upon which the encroachment is sought,or must have obtained and submitted with the application the written consent of such fee owner. In order for an application for an encroachment for wireless telecommunication equipment or facilities(as those terms are defined in Article 5 of the Land Use Code) to be approved,the applicant must show to the satisfaction of the City Manager that the applicable criteria contained in Section 3.8.13 of the Land Use Code have been met. Additionally,the proposed encroachment, obstruction or other structure shall not,in the judgment of the City Manager,constitute a nuisance or destroy or impair the use of the right-of-way by the public or constitute a traffic hazard. No permit shall be issued unless the City Manager determines that the foregoing criteria have been met. In investigating the application,the City Manager may consult with such city departments as he or she deems necessary to determine whether the application should be approved. If the City Manager determines that the public sidewalk,right- of-way or other public ground proposed for the encroachment permit is not needed for use by the public and that all submittal requirements of the application are complete,the City Manager may issue the permit for such duration and upon such other terms and conditions as the City Manager determines are necessary to protect the public welfare. As a condition of the issuance of any permit for the purpose of serving food and/or beverages, as referenced in Subsection 23-82(b), the permittee shall annually provide to the City Manager proof of uninterrupted liability insurance coverage in the amount required in said subsection, naming the city as an insured ply. (b) Modification of a permit shall be required of the applicant if there is any change in the size or configuration of the area that is the subject of the permit and/or any change to any structure that was required or specifically authorized by the city upon the issuance of the permit. . (c) At the time of issuance of a permit hereunder, and at the time of any modification of such permit, the applicant shall pay a fee in an amount established by the to help defray the costs incurred by the city in processing and administering the permit including, without limitation, the cost of inspecting the premises that are the subject of the application. The= 'of' �. . ►ty Ma ftt pursuant Y vistf►pI� le (d) Encroachment permits issued pursuant to this Division are authorized under Article XI, Section 10 of the Charter. Accordingly, any such permit shall be revocable at the pleasure of the City Council or the City Manager, whether or not such right to revoke is expressly reserved in such permit. The applicant shall not be entitled to the refund of any fee upon such revocation. (e) If the encroachment is for ner ztfiher3EuEronIl ;etd speech,the Furpese of making or di tionally proteeted speeeh,the fee as aidtherized pttmumfl to Stftaragraph (e) above shall be waived by the Gity Manager,and-the City Manager's decision whether to issue or deny issuance of the permit shall be made within fifteen (15) days following the date that a complete application was submitted to the city. Introduced and considered favorably on first reading and ordered published this 16th day of October, A.D. 2001, and to be presented for final passage on the 6th day of November,A.D. 2001. Mayor ATTEST: City Clerk Passed and adopted on final reading this 6th day of November, A.D. 2001. Mayor ATTEST: City Clerk i AGENDA ITEM SUMMARY ITEM NUMBER: 16 DATE: October 16, 2001 FORT COLLINS CITY COUNCIL STAFF: Stephen J. Roy/ John F. Fischbach , SUBJECT: First Reading of Ordinance No. 158, 2001, Amending Sections 23-82 and 23-83 of the City Code Pertaining to Encroachments. I i RECOMMENDATION: i i Staff recommends adoption of the Ordinance on First Reading. , i FINANCIAL IMPACT: Nominal, a waiver of fees for constitutionally protected speech encroachments is not considered to be significant. I • EXECUTIVE SUMMARY: Presently the encroachment provisions of Sections 23-82 and 23-83 of the Code require all applicants for encroachments to either be the fee owner of the adjoining real property or obtain the consent of the fee owner.Jhis requirement should only apply if the encroachment is for the purpose of serving food or beverages and should not apply for diher encroachments,the most common of which are encroachments for news tacks. Furthermore, the Code should be clarified to ensure that there are no "prior restraint' issues with egard to constitutionally protected speech,by simply waiving any fee requirements for speech related en' ents such as n�e�w,��acks,and by ensuring that any applications for such an encroachment must be processed by the Ciri Matiager within 15 days of the receipt of the application. Finally,wireless telecommunication companies have recently begun to request encroachment permits for the construction of wireless telecommunication equipment and facilities in public rights-of-way. Often municipalities regulate the type and appearance of telecommunication facilities that can be located on private property, but fail to establish specific criteria for the installation of such facilities in public rights- of-way. In Fort Collins, the Land Use Code contains criteria and regulations for the installation of such facilities on private property. However, with regard to encroachment permits issued under Chapter 23, there are no criteria for measuring the appropriateness of wireless telecommunication equipment and facilities. Therefore, staff suggests that the same criteria that are contained in the Land Use Code should be applied when analyzing the appropriateness of a request for the installation of wireless