Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/16/2001 - ITEMS RELATING TO SIDEWALK ENCROACHMENT LEASES AGENDA ITEM SUMMARY ITEM NUMBER: 26 A-B DATE: January 16, 2001 FORT COLLINS CITY COUNCIL FROM: Ann Turnquist SUBJECT: Items Relating to Sidewalk Encroachment Leases. RECOMMENDATION: i Staff recommends adoption of the Ordinances on First Reading. EXECUTIVE SUMMARY: A. First Reading of Ordinance No. 11, 2001, Amending Chapter 23, Article III, Division 3 Pertaining to Encroachments on Public Property. B. First Reading of Ordinance No. 12, 2001, Amending Section 23-114 of the City Code Pertaining to Leases of Public Property for Outdoor Eating Establishments. City Council has asked City staff to examine its policies regarding private business use of City- owned sidewalks. In the past, the City has granted "encroachment" permits to private businesses for the use of public sidewalks for such things as tables, chairs, or full dining areas. The City has never charged a fee for this service or required the business owners to sign a lease for the space. Beginning in 2000, the Downtown Development Authority began granting outdoor patio permits to businesses in the Old Town Square area with a $1 per square foot, per year cost. The cost was originally proposed at $3 per square foot, but the price was negotiated to be $1, with the price fixed for three years. Other cities along the Front Range charge as much as $3 per square foot, 1 and as little as a flat fee of$50 per year. City staff is proposing a policy similar to the DDA's be instituted for sidewalk encroachments on City-owned property. The change in policy would be directed at two goals. First, concerns have been raised about the use of City property without any cost to the business. In this situation, private businesses are benefiting from publicly owned improvements. This equity issue has become a concern in light of the recent change in DDA policies. Second, this policy would address liability issues that come with private use of public properties. Currently, with no lease in place, the City may not be able to ensure that the City's liability would be limited if an accident or injury occurred in one of these areas. t The proposed ordinance limits the usage of the sidewalk spaces under the lease to "outdoor eating establishments." This is because outdoor eating establishments can best enhance the DATE: January 16, 2001 2 ITEM NUMBER. 26 A-B attractiveness and ambiance of the commercial areas of the City without unduly interfering with the public's use of such rights-of-way. Key provisions of the proposed policy change will include the following: 1. The cost of the lease would be $1 per square foot, per year. 2. The lease would run for a term not to exceed 2 years. 3. Maintenance of the leased area would remain the responsibility of the business owner, including snow removal. 4. The lease would require that the business maintain appropriate liability insurance for the outdoor space of$1,000,000, with the City named as "additional insured" on the policy. 5. The City would continue to use its existing rules to determine when and where outdoor eating establishments may be located, as determined by the City Manager. 6. Fences would not be required around sidewalk encroachments, unless State law requires the fence because of a liquor license. 7. Businesses would be required to control where tables or chairs are located so that pedestrian access is not limited. If a business' outside furniture becomes a problem for access, the City would be able to terminate the lease after an appropriate notice. Approximately 35 businesses currently hold encroachment permits and could be affected by the change. Existing permits would be terminated in favor of the new leases. Sizes of current encroachments range from one table in front of a business up to an enclosed patio of over 1000 square feet. In total, approximately 7,500 square feet of sidewalk space is occupied by private businesses. Prior to asking Council for approval of the Ordinance, staff contacted each business which may be affected by the policy change and provided them with detailed information about the proposal. In meetings conducted in October 2000, staff collected a number of comments, questions and concerns about the proposal. A summary of the comments is included in Attachment A. Based on the feedback received from various businesses, staff revised the proposed Ordinance. Changes were made regarding fencing, snow removal, cost issues and the method of structuring the fee. Issues which were not addressed include concerns that any regulation or costs imposed on downtown businesses might affect their ability to compete with other restaurants in other parts of the community. Concerns were raised that this regulation might affect the vibrancy of the downtown and midtown areas. Business owners were concerned that the City was not recognizing that sidewalk dining has a positive effect on the community's atmosphere and contributes to the community's tax base through the business which is conducted on the sidewalks. In order to implement this policy, staff has proposed that City Council adopt Ordinance No. 12, 2001, amending Section 23-114 of the City Code to specifically address the issue of leases for outdoor eating establishments. Staff has also proposed that Council adopt Ordinance No. 11, 2001, amending Chapter 23, Article III, Division 3 pertaining to encroachment permits to clarify that such permits are fully revocable and that, as they apply to outdoor eating establishments, they may be used only for short-term events (9 days or less per year) such as a pancake breakfast or other special event. Also, some procedural rules were added to ensure that no such permit would be granted over the objection of the fee owner of the adjoining building. • ORDINANCE NO. 11, 2001 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 23, ARTICLE III, DIVISION 3 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO ENCROACHMENTS ON PUBLIC PROPERTY WHEREAS, the Council of the City of Fort Collins has determined that the encroachment provisions of Chapter 23 of the Code of the City should be amended to include more complete protective provisions for the fee owners of properties abutting the proposed encroachments, and to clarify the City's ability to revoke such encroachment permits. NOW,THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 23-82 (5)of the Code of the City of Fort Collins be amended to read as follows: (5) A statement that the applicant agrees to abide by the provisions of this *rtiefeDivislorl. Section 2. That Section 23-82 of the Code of the City of Fort Collins is hereby amended by the addition of new subsections (6) and (7) to read as follows: • (6) A staleptent°ibat£he appiiGatt#,is the fre owner of the real property directly adlbin tlie:publrc property upon uvhtch the'ent ioaciment is sought,or, if the applicant xs,not the fee owner of such real:property; then the adjoining prapezy:owtier'siwtit#en tnsent tothe encrrachtnent: (7) The anticipated duration (term) of the proposed encroachment: Section 3. That Section 23-83 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 23-83. Investigation of application information; permit fee; revocation. (a) The application shall be made to the 1 ity Manager. 5=h-BirectorTie.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 shall determine that the:"applicant for the proposed encroachment, obstruction or other structure is the fee=ownO of the real property direedy-adjoining the public pzapert upon which the encroachment is sought, or has obtained the written consent of such fee owner,`and that the proposed encroachment,obstruction or other structure does not 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 • V911M,thuSe conditions are found to existunless the City Manager determines that the foregoing criteria have been met. (b) At the time of issuance of a permit hereunder, the applicant shall pay a fee equal to the cost of recording till Permit with tiie county ei.ik..,d RCCOLdel and die wing,administration and inspection costs incurred by the city—,jnd-arcopp (c) Any s=h pennit so issued may be revoked by the Birecto, of Bevelopinent } r l?ncraachment�termrtc issued Putsuaut to tlttS Iyt ' . x orr unde( ArtielpI,Seet}tin 10f the Cliaitor Yt cordusiy, an ' s uh p rmmt shall be revoc4b*at the pleasure of the hry Council`oi the� et C1,itot,such righf tb,revok@ is exptesslp xeseryed in such pormit, Section 4. That Section 23-84(a)of the Code of City of Fort Collins be amended to read as follows: Sec. 23-84. Notice to remove encroachment. (a) Whenever any encroachment, obstruction or structure is made or located contrary to the terms of the permit or without a permit or at such time as the permit is revoked as provided for in this ATticleDivision,the City Manager shall give notice to the person who made or located such encroachment, obstruction or structure or caused or permitted it to be done or who owns or controls the premises with which such encroachment, obstruction or structure is connected to remove such encroachment, obstruction or other structure. It shall be removed within ten (10) days after notice. Section 5. That Chapter 23, Article III,Division 3 (Encroachments) of the Code of the City of Fort Collins be amended by the addition of a new Section 23-86, to read as follows: Set Outdoor eating establishments: A Permit i$Sul foursuant to this Division for the puipose of authorizing an e v�ti to t i r outdOul eating establishments("at terra is defined in§23-114) upon arty sidewalk;public right-of-way or pother jitilaliG) round shall be-limited in dufagpn 4 no rriore than three(3)c+onsecutive days•anii no more than nine (9)days per cal tidar year per location: , And such usage for,durations in excess of these hnut t nns npttst he approved by the cify,pursuanft©23 14. This Section shall not . : appl},tb Oittdiiot vendors regulated under Chapter 15,Article XIV of the Code. 2 Introduced and considered favorably on first reading and ordered published this 16th day of January, A.D. 2001, and to be presented for final passage on the 6th day of February, A.D. 2001. Mayor ATTEST: City Clerk Passed and adopted on final reading this 6th day of February, A.D. 2001. Mayor ATTEST: City Clerk 3 . ORDINANCE NO. 12, 2001 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 23-114 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO LEASES OF PUBLIC PROPERTY FOR OUTDOOR EATING ESTABLISHMENTS WHEREAS,the City Council,this same date,has approved Ordinance No. 11,2001,which, in relevant part, added to the City Code a new Section 23-86, which imposes a nine (9)day limit on the term of any encroachment permits for outdoor eating establishments issued by the City Manager under Chapter 23, Article III, Division 3 of the Code; and WHEREAS, the City Council recognizes that certain permit applications may be requested for a longer period of time; and WHEREAS, the City Council believes that the practice of permitting outdoor eating establishments to be located within portions of the sidewalk and public right-of-way in certain areas of the City is or may be appropriate under certain terms and conditions, since such outdoor eating establishments can enhance the attractiveness and ambiance of the commercial areas of the City without unduly interfering with the public's use of such rights-of-way; and WHEREAS, the City Council believes that such outdoor eating establishments can best be . authorized and regulated upon the public sidewalks pursuant to lease agreements between the applicant and the City,which lease agreements should include reasonable compensation to the City for the use of such public sidewalks, rights-of-way and other public grounds. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Section 23-114 of the Code of the City be amended to read as follows: Sec. 23-114. Leases. (a) Notwithstanding the provisions of§23-111 of this Division, the City Council is hereby authorized to lease, for a definite term of two(2) years or less, any and all interests in real property owned in the name of the city, whether the interest in real property is obtained by tax deed or otherwise, provided that the City Council first finds, by resolution, that the lease is in the best interests of the city; provided, however, that any lease having a potential term of more than two (2) years, and any lease,regardless of term,of real property which is a part of the city's water or electric utility systems,must be approved by the City Council in the manner required by§23- 111. (b) Lease, when used in this Section, shall mean a contract by which the city • grants to another for ten (10)days or longer the right to possess, use and enjoy any real property owned orcontrolled by the City ,in exchange for the payment of rent in a stipulated amount. (c) Ducdgoutc!4i estetbdishment, when used tn`dhis Section;,1. �ha}i, mean a bu "sa ealpprttte serving-o'r.consumption trffood and beverages aEa fixed olidWIPA l�t ",�, . , ,._. Atb` � Y,at�bM1 �4'�;� S& vtlit�tli �r•an;�'ii� t eatllxg fc)(d Nothing in this Section shall be construed as prohibiting the City Manager from authorizing, according to the provisions of Chapter 7.5, Article I,fees for the temporary use of city facilities for a period of less fi ian-ten (10) days pe'r calendar yearbr}ess, and such use of city facilities by the feepayer shall not be construed as a lease of those facilities within the meaning of this provision. (f) And'lW ,,,,xecutgd;piirsuanttothisSectionfortheptu�oseofauthorizingthe usa);e o a,,sitdeiallchnght-of-way or other,public ground for an outdoor eating estdb.....0 11��subject to the following requirements and procedures: (•1) fam t�cipated�luratiom(term)ofthepri posed leaseshall not exceed ttyo ��)years: 1 (2) The appilcantftirtYie;leasemtstbethe_feeownerofthrealproperty or properties tlirectly adjoining the public property to be;leased by the appitcsizl or, tf the' pplicanx is not the fee.owne#'aof such real pr4perty,`then rite appIteant;rnust hale oiiCained tlie`fee owner's wrtteti;consent to the proposed lease; t t i k r6vi by( �Iag �nclud ��+nt�i{strPnttatrtin;�' 9llo'�T3h�`ttte d t e,°address telepltbtte not tl eer of the app o ttt,ilte 7CUA t ion of °,� pr000sed tb leaad , wrir♦stteruent d�ccr��+lx ePropustxlusa�tr'afsucitj?roPeifi�; anoe�tderic�"Pf'the aj pltcapi's capabili apd.willingness,tb provide liability.insurance n unit z dte,.eity in ,q,,, rn not•less than° one ni'Ilion, dollars (4) c6di0leteapplicatiohktheCityManagerwi11:6dnsult with .the Chief of Police, Fire Chief', Director of Transportation Serv16es,'City Engineer, Director of Utility Services, Director of Comri7imity Planning and Environmental Services and Director of 2 Cultural, Library and Recreation Services to determine whether the apphcatio�should be approved. If,upon such consultation;the City Manar determines that the public sidewalk;right=of--way or other public prpugd proposed to be leased-Is notneeded for use by the public a nd tT�at ailts. . .Tin tat requit1e ttetits of:the application` are cornAle # d Citylnner?nay Arent to ttie City Council for approval 1l lease rn�',a,trcbe� irce tvrth tl ,pYovtsrons tpris Section Upon �..t6C[[1S 'IfeCHiU.bl a& $�' Cea$ol , $ CSSary. to eff prO �t of to}�q cY��'tsonahly y cork ti�to bepxrd'ti�'`thenity f ' �� �e= i�i gat the''iate 4l ?ne # r $1) '3e1 ,;v"`. le ; sPaPe" (5) Any le8seldrized purs}iant to srblori(d)of tlus:Section shall include;it tfTttiutlimitatton requiretnptsai theptovislon of liability insun3nce'in the arrtdunt.provided l 'subparagraph' (3) above, requiretniiexirtsfor preservation of reascinable pedestrian access on the sidewalk,_Provision for the>revocation%of the 4iease by the City Manajierwithout any refund of least pOments paid to the city by the lessee in the event of violation by the lessee of any term or condition of the lease;,and a provision for the revocation of the lease by the City Councikvitliout cause provided that such revocation also includes a reason",and proportionate refundi f bY.Jeasepayments made by the lessee'to the"city for the unexpired;portion of the lease term. (fi) The failure,of any lessee to comply witb,the terms of such lease or to vacate the leased premises upon revocation of the lease,whether for cause or withourcause, shall be deemed to constitute a violation of the Codeaiid�shall be punishable in accordance with §1-15. Introduced and considered favorably on first reading and ordered published this 16th day of January, A.D. 2001, and to be presented for final passage on the 6th day of February, A.D. 2001. Mayor ATTEST: City Clerk • 3 Passed and adopted on final reading this 6th day of February, A.D. 2001. Mayor ATTEST: City Clerk 4 Attachment A Meeting Notes Restaurants with Sidewalk Encroachments October 2 & 4,2000 General Comments from Business Representatives: • The City already benefits from outdoor dining because of the sales tax revenue that the City receives from the increase in business. Every seat increases the tax revenue. • This is a small amount of revenue for the City, but could be a substantial cost for the businesses who are working on a very small profit margin. • Any barrier to business is the same as a tax on small businesses. • The City already benefits from outdoor dining because of the vibrancy that is created by these businesses. • The City needs to support downtown businesses. The City has worked over the years to enhance the downtown, so don't do something that makes doing business there more difficult. • The businesses provide a service to the City by providing sidewalk fumiture like tables and chairs. • Eliminating outside tables for six months each year will lead to fewer jobs and less business downtown. • This change affects independent restaurants unfairly, and much more than it affects • the big chain restaurants in the south part of town. • There is a much greater benefit to the City in vitality and sales tax revenue than the $10,000 a year that will be generated by these fees. • Businesses that are not located on Old Town Square are not getting any benefits for the fees you are asking them to pay. Old Town businesses get DDA landscaping, decorations etc. for the fees they pay,but other businesses will not get these services. • If more fees are charged, more businesses will turn over. • For very small businesses, like coffee shops,the business doesn't profit from having the tables outside. It's just a convenience for customers, not an area where food is served. • Adding fees may limit continued growth of the downtown. • A two month cancellation clause in the contract is too short. • Too high a fee will just cause the businesses to raise their prices. This makes it harder to compete and succeed in the tough restaurant business. • If this applies to restaurants, it should also apply to newspaper boxes, phones, displays, etc. by other businesses. • Even if the fee goes in at $1 square foot,there's no guarantee that it won't increase substantially in future years. • Having a lease that is revocable for no reason would create some fear of making an investment • Attachment A Fences: • Requiring a fence around a very small area does not serve a purpose. • Taking down the fences is difficult and expensive. Is this really necessary? • In some places, putting up a fence around one or two tables would actually make it more difficult for pedestrians. • If control of where tables are is an issue,then deal with the problem businesses, not all businesses. If those without fences can't keep their tables out of the pedestrian areas,revoke their permit. • Requiring the fences to be removed for six months of the year is a major problem since these areas are frequently used on nice days throughout the year. • Some businesses, like Coopersmith's,will see the requirement to remove the fence six months a year as a"deal killer." • Businesses already handle snow removal, so they shouldn't need to remove the fences. • One table placed along the street side of the sidewalk would be impossible to fence. • Fences limit ADA access on patios. • If the issue with fences is that they creep out into the pedestrian way, then make it the responsibility of the business to find a solution to that problem that works in their individual situation. If they don't comply,then you can revoke their permit. Suggestions: • Create a license fee at a flat rate, not as a square foot price. It doesn't cost the City more to issue a lease for a big area, so just have flat rates of$50 a year. • Separate the issues of liability from the fee issue. Businesses could sign a lease, even with a nominal fee, and deal with the liability issue. • The City could require a lease with maintenance agreements, without needing to include a fee for the business. • A lease would be o.k.,with liability requirements and requirements for snow removal, but not the fees and fence. • If you do this, grandfather the existing businesses because they might have made different business decisions and size decisions had they known about the cost. • The revenues received should go back to the downtown in services like snow removal, maintenance, etc. • Make the fee be"per table" instead of per square foot. • Find some other way to deal with issues of maintenance and snow removal other than requiring fences to be removed and closing down patio dining completely for six months a year. • The City and businesses could develop a coordinated snow removal plan that will deal with those problems, rather than trying to do it through these leases. Agreements could be reached on where to move snow,by when, etc. • Revise the current ordinance to cover liability issues and forget the rest of these requirements. • Develop a trade-off—If businesses remove snow,then they shouldn't pay a fee. Attachment B Businesses with Existing Right-of-Way Encroachment Permits For Outdoor Eating Establishments September 2000 Business Approximate Square Footage Joe's Fireside Cafe 325 238 S. College Tony's 83 224 S. College Jay's Bistro 885 151 S. College Blue Note Coffee House 2 tables 147 W. Oak St. Steele's Market 7 Tables 309 W. Mountain Ave. Cuisine Cuisine 124 130 S. Mason St. Walrus Ice Cream 278 125 W. Mountain The Crown Pub 97 134 S. College Bissetti's 108 . 120 S. College l0win's Chocolates 2 tables 114 S. College Starry Night Coffee House 2 tables 112 S. College Austin's American Grill 1015 100 W. Mountain Trail Head Tavern 103 148 W. Mountain Nick `n Willy's Pizza 2 tables 123 N. College Java Plaza 2 tables 123 N. College Starlight (Mountain Tap) 114 167 N. College Northern Hotel (Prior to current construction 468 Elliot's Martini Bar 122 234 Linden St. Page 1 Businesses with Existing Right.do Attachment B Business Approximate Square Footage Linden's 375 214 Linden St. Coopersmith's (South Patio only) 320 5 Old Town Square Beaujo's Pizza 817 100 N. College Food Coop Picnic Table and Bench 250 E.Mountain Rasta Pasta 303 200 Walnut St. Parilla's Grill 4 tables 185 N. College Samuel Glen Inc. (Wine Bar) Permit Pending - Unknow 152 W. Mountain Subway Sandwiches 2 tables 126 S. College La Luz Mexican Grill 2-3 tables 200 B Walnut St. The Western Coffee Shop 1 table 144 N. Mason Fiona's European Deli 5 tables 181 N. College The Vault 2 tables 146 N. College not in use Los Torasco's 229 624 S. College B&B Pickle Barrel 300 122 W. Laurel Toy Thai Cafe 30 128 B. West Laurel Pizza Casbah 30 120 B West Laurel Marilu's International Market 30 112 W. Laurel 136ja vu Coffee House 30 646 '/z S. College Teriyaki Wok 60 128 A West Laurel Page 2 Businesses with Rusting Rightdoc