Loading...
HomeMy WebLinkAboutOrdinance 1915 (Newspaper Rack Encroachments)CLERK'S CERTIFICATE I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, and Ex -Officio Clerk of the Council of said City, do hereby certify that the foregoing: ORDINANCE NO. 1915 AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING CHAPTER 11.04 OF THE SAN RAFAEL MUNICIPAL CODE TO ADD A NEW SECTION 11.04.070 ENTITLED "NEWSPAPER RACK ENCROACHMENTS". is a true and correct copy of an Ordinance of said City, and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 18`h day of November, 2013; a SUMMARY of Ordinance No. 1915 was published as required by City Charter in the MAR1N INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City, held on the 2nd day of December, 2013, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey Lang, Colin, Connolly, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None F.1113yONM416181e[yIPUT 8aul:h lxZ -erem WITNESS my hand and the official Seal of the City of San Rafael this 3rd day of December, 2013 ESTHER C. BEIRNE City Clerk ORDINANCE NO. 1915 AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING CHAPTER 11.04 OF THE SAN RAFAEL MUNICIPAL CODE TO ADD A NEW SECTION 11.04.070 ENTITLED "NEWSPAPER RACK ENCROACHMENTS". THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1. WHEREAS, the City Council wishes to advance and improve public safety and aesthetics and implement improvements to_enhance the overall experience of.San .Rafael. businesses and their patrons, San Rafael residents, and travelers through our city without restricting the free dissemination of information guaranteed by the Constitutions of the United States and the State of California; and WHEREAS, an important element of streetscapes is the installation of newspaper rack facilities that are safe, clean and maintained while simultaneously providing ample opportunities for publishers to provide their periodicals to the persons living, working or visiting in San Rafael; and WHEREAS, implementation of a newspaper rack encroachment permit program requires the City Council to adopt an ordinance that will provide publishers and the City with opportunities and responsibilities to maintain the appearance of the newspaper rack facilities and enhance the aesthetics of the City while protecting their First Amendment rights; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 2. Section 11.04.020 of the San Rafael Municipal Code, is hereby amended to read in its entirety as follows: 11.04.020 Definitions. For purposes of this chapter, certain terms are defined as follows: A. "City" means the City of San Rafael. B. "Director" means the director of public works of the city or his or her designee. C. "Encroach" or "encroachment" includes going upon, over or under a public right-of-way, or using a public right-of-way or a public or private area adjacent to a public right-of-way in such a manner as to prevent, obstruct or interfere with the intended use of that way, or a modification of its mode of use, including but not limited to excavation or disturbance; erection, construction, placement or maintenance of any physical improvement thereon or thereunder; planting or maintaining any landscaping; or placement or maintenance of any waste material, except the placement of solid waste or recyclables in authorized receptacles for pick-up in accordance with Chapter 9.19 of this code. D. "Landscaping" means any tree, shrub, grass, groundcover, plant, hedge, ornamental boulder, solid landscape feature or growing thing. E. "Major continuing encroachment" means an encroachment by a property owner into the public right-of-way adjacent to his or her property, which is intended and permitted to continue for an indefinite period of time, and which serves or provides a benefit to the city or the public generally, such as, for example, the provision of off-street parking in an area where such parking is inadequate, the provision or protection of a public accessway, or the promotion of the city's economic vitality or beautification. Major continuing encroachments may include, but shall not be limited to, the following: 1. Fences or walls higher than three feet (3) above natural grade which provide protection to a public street or pedestrian walking path; 2. Abutments for driveways and stairs where reasonably necessary to provide access to the public right-of-way; 3. Ground water monitoring wells. F. "Minor continuing encroachment" means an encroachment which is intended and permitted to continue for an indefinite period of time, but which by its nature is limited in size, scale or use so that the encroachment will have little or no impact on the public health, safety or welfare, and shall include, but not be limited to, the following: 1. Flat or low-level improvements/landscaping adjacent to city streets or pedestrian walking paths, including but not limited to low-level plants and shrubs, landscape walls and fences less than three feet (3') in height, a private postal box on a post, boulders, concrete and other flatwork; 2. Bicycle racks; 3. Awnings, signs, eaves or other minor architectural features of buildings extending more than four feet (4') into the public right-of-way; 4. Other minor improvements which the director determines will not inconvenience or jeopardize the city management or use of the public right-of-way. G. "Minor encroachment permit" means an encroachment permit issued pursuant to this chapter to authorize a temporary encroachment or a minor continuing encroachment as defined herein. H. "Newspaper box" means any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display and sale or free distribution of periodicals. "Newspaper rack" means an assembly which contains one (1) or more newspaper boxes. "Periodical" means any publication to be distributed to the public at regular intervals. This can include, but is not limited to, newspapers, magazines, publications, solicitations, and real estate advertisements. K. "Permittee" means any person, utility or special district that has been issued a minor encroachment permit, revocable license agreement, or utility/special district encroachment permit pursuant to this chapter or their successor in interest. L. "Person" means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer or employee of any of them or any other entity which is recognized by law as the subject of rights or duties, not including the city of San Rafael, the San Rafael Redevelopment agency, or their officers, employees or agents. M. "Public right-of-way" means land which by written instrument, usage or process of law is owned by, reserved for or dedicated to the public use for street or highway purposes, or other transportation purposes, whether or not such land is actually being used or developed specifically for those purposes. N. "Public street" means the portion of the public right-of-way of any road, street, pedestrian walking path, or alley used by or for the general public for travel purposes, including sidewalks and areas between sidewalks and the vehicular traveled way, whether or not those roads, streets, pedestrian walking paths, and alleys have been accepted as and declared to be part of the city system of public streets, except streets forming a part of the state highway system or county roads or expressways. O. "Special district" means any public agency that has been created for the local performance of governmental or proprietary functions within limited boundaries. P. "Street cut" means the action or result of opening, tearing up, excavating, removing or constructing any portion of any roadway, street or thoroughfare, sidewalk, driveway, curb or gutter, or any other facility existing within the public right-of-way area, for any purpose whatsoever within the jurisdiction of the city. Q. "Structure" means any physical alteration or improvement, including but not limited to a building, post, cabinet, fence, vault, sign, pole, guard rail, wall, facility, pedestrian walking path, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe, embankment or excavation. R. "Temporary encroachment" means an encroachment which is intended to continue for a specified, limited period of time, not to exceed one year, and shall include, but not be limited to, the following: 1. Debris boxes; 2. Scaffoldings; 3. Tree trimming by private property owners or their contractors; 4. Closure for limited periods of time of public streets, driveways or public areas not under control of the state or the county; 5. Closure for limited periods of time of public sidewalks; 6. Painting/washing of building exteriors adjacent to the public right-of-way or public street; 7. Construction required for installation of sidewalks, driveway approaches, curbs and gutters, including underdrains, underground facilities, and sewer laterals; 8. Temporary construction fencing; 9. Painting of address numbers on curbs. S. "Utility" means any entity providing electricity, gas, cable, video programming, telephone, telecommunications or other services to customers, and which pursuant to state law or local franchise is entitled to install its facilities in the public rights-of-way. T. "Utility/special district encroachment" means any encroachment by a utility or special district. U. "Waste material" means any rubbish, brush, earth or other material of any nature which is unused, unwanted or discarded, including any garbage, recyclable materials, solid waste and yard waste as defined in Chapter 9.19. DIVISION 3: Section 11.04.030.040 of the San Rafael Municipal Code is hereby amended to read in its entirety as follows: A. Every minor encroachment permit, revocable license agreement, newspaper rack permit, and utility/special district encroachment permit issued pursuant to this chapter shall be subject to, and shall contain a provision for, a duty by the permittee: To the maximum extent permitted by law, to indemnify, defend and hold harmless the city, its officials, agents, employees and volunteers against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, including but not limited to attorney's and expert fees and court costs, arising out of or connected with the installation, operation and maintenance of any facilities in, or the use of any public right-of-way by, permittee or permittee's employees, officers, officials, agents, transferees, contractors or subcontractors pursuant to the permit or agreement issued under this chapter; provided, that the obligation to indemnify the city under this subsection shall not apply to any liabilities, losses, claims, actions, causes of action or demands arising from city's sole negligence, willful misconduct or criminal acts. 2. To the maximum extent permitted by law, to defend, indemnify, release and hold harmless the city, its agents, officers, attorneys, employees, boards and commissions from any claim, action or proceeding brought against any of the foregoing individuals or entities ("indemnitees"), the purpose of which is to attack, set aside, void or annul the approval of a permit or revocable license agreement issued pursuant to this chapter, or the adoption of any environmental document which accompanies such permit or agreement. 3. In the event that any claim, action or proceeding is brought as described in subsection (A)(1) or (A)(2) of this section, the city shall promptly notify the permittee of any such claim, action or proceeding, and the city council will cooperate fully in the defense of such claim, action, or proceeding. In the event the permittee is required to defend the city in connection with any said claim, action or proceeding, the city shall retain the right to approve any and all settlements affecting the validity or interpretation of a city ordinance or regulation, which approval shall not be unreasonably withheld. Nothing herein shall prohibit the city from participating in the defense of any claim, action or proceeding, provided that if the city chooses to have counsel of its own to defend any claim, action or proceeding where applicant already has retained counsel to defend the 4 city in such matters, the fees and the expenses of the counsel selected by the city shall be paid by the city. B. Where the liability and indemnification requirements provided herein conflict with the provisions of a franchise or other agreement between a utility or special district and the city, the provisions of such franchise or agreement shall apply. DIVISION 4: Section 11.04.070 is hereby added to the San Rafael Municipal Code to read in its entirety as follows: 11.04.070 Newspaper rack encroachments. 11.04.070.010 Newspaper rack encroachments—Permit applications. A. Permit required. No person shall install, use, maintain, or place any periodical into, any newspaper rack which in whole or in part rests upon, in, or over any portion of any City street, sidewalk or right-of-way, unless a newspaper rack encroachment permit has been first obtained pursuant to this chapter. B. Scope of Permit. A newspaper rack encroachment permit authorizes the permittee to use a City -owned newspaper box at a specified City -owned newspaper rack location, or to place or maintain a privately -owned newspaper rack and/or newspaper box in a City -approved location. 2. Newspaper rack encroachment permits shall be issued for a one calendar -year period. Permittees who maintain their newspaper racks and/or boxes in accordance with this chapter shall be eligible to renew their permit and will be given first priority to remain in their current locations. C. Applications. Permit applications shall be in a form determined by the director, and shall be available at the Department of Public Works and for download from the City's website. Applications shall be filed with the Department of Public Works and shall not be deemed complete until all required supporting documents, information, and fees have been submitted. Every application shall include the following: 1. A one-time application fee to cover the City's costs for processing the application, in an amount to be established by resolution of the City Council from time to time; 2. Contact information, including name, address, telephone number and email address of the person or persons applying for the permit and for the person or persons responsible for use and maintenance of the newspaper racks and/or newspaper box(es), if different; 3. A detailed description of the number and location of newspaper racks and/or newspaper boxes proposed to be used; and 4. A detailed installation plan for a proposed newspaper rack, showing location, dimensions, method of attachment to the ground, and such other information as may be required by the director. D. Action on application. The director shall act upon an application under this section after the application is deemed complete. In considering the application, the director shall retain discretion to determine the location of newspaper rack installation, considering the following criteria: a. Placement of a requested newspaper rack shall not impede public access or mobility; b. The minimum accessible path of travel as defined in the City's building codes shall be maintained at all times. In no instance shall the width of a sidewalk be less than 48 inches. 2. A newspaper rack encroachment permit may be issued by the director upon making all of the following findings: a. A newspaper rack and newspaper box can be installed safely, or a newspaper rack exists and a newspaper box therein is available in the location proposed by the applicant; b. Issuance of the permit will not result in any single periodical having more than one newspaper box per newspaper rack, or within fifty (50) feet of another newspaper rack carrying that periodical; and c. The applicant has complied with all applicable requirements of this chapter, including securing all required insurance pursuant to in section 11.04.030.030. 3. If an application for a newspaper rack encroachment permit is denied, in whole or in part, the director shall notify the applicant in writing, explaining the reasons for denial and the procedures for appeal. E. Appeal: The applicant may appeal a decision of the director on a newspaper rack encroachment permit application to the city manager in writing within ten (10) calendar days following the director's action, stating the grounds with particularity. The city manager or his or her designee shall schedule a hearing upon not less than ten (10) calendar days' notice to the appellant. At the hearing, the appellant shall have the opportunity to present oral and written evidence and arguments in support of the appeal. Any decision of the director of public works shall be stayed pending final decision of the city manager or his or her designee, which shall be issued in writing within ten (10) calendar days after the conclusion of the hearing. The decision of the city manager or his or her designee shall be final. 11.04.070.020 Newspaper rack encroachments—Newspaper rack zones. A. Downtown Newspaper Rack Zone. A "Downtown Newspaper Rack Zone" is hereby established, covering and including all streets, sidewalks, and public rights-of-way on or within the perimeter of the area defined by Hetherton Street between Mission Avenue and Second Street, Second Street between Hetherton and the beginning of Miracle Mile, Fourth Street from the beginning of the Miracle Mile to H Street, H Street between Fourth Street and Mission Avenue, and Mission Avenue between H Street and Hetherton Street. Notwithstanding anything in section 11.04.070.010 to the contrary, within the Downtown Newspaper Rack Zone: 1. The City shall install and own all newspaper racks and newspaper boxes; all privately - owned newspaper racks and newspaper boxes shall be prohibited. A permit pursuant to section 11.04.070.010 shall be required for use of any newspaper box; 9 2. A permittee may install a coin mechanism in the permitted newspaper box; however any such coin mechanism shall be acquired, owned, installed and maintained solely by the permittee and not by the City. Any damages to the city's newspaper rack or newspaper box resulting from the installation or removal of the coin mechanism shall be the sole responsibility of the applicant, who shall be liable to the City for the cost of necessary repairs to or replacement of the damaged City property. The permit application shall provide that the applicant releases the City from any and all liability for damage to, tampering with, or theft of the coin mechanism by any person; 3. Upon issuance of a newspaper rack encroachment permit, the City shall provide a decal identifying the periodical occupying the newspaper box, which shall be affixed to the bottom one-third of the front of the newspaper box. No logos or similar information identifying the periodical shall be allowed on the sides or the back of the newspaper racks or newspaper boxes; 3. The City shall be responsible for exterior graffiti removal, exterior maintenance, and exterior cleaning of newspaper racks and newspaper boxes. The permittee of each specific newspaper box shall maintain any coin mechanism portion of that box; 4. An annual per -box maintenance fee to be established by resolution of the City Council shall be payable upon issuance or renewal of any permit for use of a newspaper box, in addition to any application fee payable pursuant to section 11.04.070.010. B. Annual availability. The director of public works shall conduct an annual review of availability of newspaper boxes within the zone, and he or she shall provide written notification of such availability to current permittees as well as any publishers that have requested notification. The notice shall describe the location of available spaces and offer priority application to current permittees. Current permittees shall be given thirty (30) calendar days to submit applications, at which point additional applications shall be considered on a first-come, first- served basis. C. Additional newspaper rack zones. The City Council may from time to time by resolution establish other newspaper rack zones within the City and establish specific requirements or standards applicable to those zones. D. Notice of creation of newspaper rack zone. When a newspaper rack zone is established, the director shall provide written notification of the creation of the zone to publishers who currently maintain newspaper racks within the proposed newspaper rack zone, as well as any publishers that have requested notification. The notice shall include any requirement to remove existing newspaper racks, and shall offer existing publishers priority in applying for permits pursuant to section 11.04.070.010 for newspaper boxes within the new zone. Existing publishers shall be given thirty (30) calendar days to submit such applications, after which time additional applications will be considered on a first-come, first-served basis. 11.04.070.030 Newspaper rack encroachments—Use and maintenance of newspaper rack boxes. All newspaper rack encroachment permittees shall use and maintain their newspaper rack and/or newspaper box(es) in compliance with the following requirements: A. Limited Logos and Advertising. Newspaper racks and newspaper boxes shall carry no advertising or public notices, other than a logo or similar information identifying the publication. 7 B. Contact Information and Permit Number. Upon issuance of the newspaper rack encroachment permit, the City shall provide a sticker that includes the address and telephone number for contacting the permittee regarding customer complaints, as well as the permit number issued by the City. The sticker shall be displayed on the front of the newspaper box or newspaper rack at all times, and maintained in such a manner as to be readily visible and readable to a prospective customer. C. Maintenance. The permittee shall keep any coin mechanism in good repair and working order. The permittee shall make sure the logo described in section 11.04.070.030 (A) above is not peeling or cracked. The permittee shall keep the interior of the newspaper box clean and free of all items other than the permittee's periodical. For areas not within the Downtown Newspaper Rack Zone, the permittee shall keep the exterior of all newspaper racks and newspaper boxes clean and free from graffiti, stickers, dirt, rust, damage, and disrepair. D. Abandonment. Newspaper boxes that remain empty for ten (10) calendar days longer than the regular publishing interval, except for a newspaper rack remaining empty due to a labor strike or any other temporary and extraordinary interruption of distribution, will be considered abandoned and subject to removal as outlined in section 11.04.070.040. 11.04.070.040 Newspaper rack encroachments—Violations and remedies. Any violation of this Chapter shall be deemed to be a public nuisance, and may be enforced either as an infraction or as a misdemeanor, by an administrative citation pursuant to chapter 1.44 of this Code or by any other remedy available to the City under this Code, or under State law. In addition, the City shall have the following remedies: A. Removal. At the direction of the director, a newspaper box or newspaper rack deemed to be in violation of this chapter or abandoned may be removed by a designated employee of the city in accordance with this section. 1. Notice. Not less than thirty (30) calendar days prior to removal of the newspaper box or newspaper rack, the director shall give notice of the intended removal. The notice shall contain the following information: the date of intended removal; the basis for removal; information as to corrective action if any; the right to and procedure for requesting an appeal hearing to contest the removal; and information regarding retrieval of the removed property from the Department of Public Works. Notice to a permittee shall be given by posting such notice on the subject newspaper box or newspaper rack and mailing it to the publisher at the address stated on the permit. In the case of a newspaper rack or newspaper box for which no permit has been issued and/or that is deemed to be abandoned pursuant to this chapter, such notice shall be posted on the subject newspaper rack or newspaper box, and additionally shall be mailed to the publisher using that newspaper rack or newspaper box if the publisher's identity and contact information is readily ascertainable by the director from information displayed on such rack or box. The failure of a newspaper rack or newspaper box owner actually to receive notice provided pursuant to this section shall not preclude or invalidate the director's removal of the subject newspaper rack or newspaper box. 2. Hearing. The permittee, or a person claiming an interest in an abandoned newspaper rack or newspaper box, may appeal the removal of a newspaper rack or newspaper box by filing a written request for hearing with the city manager prior to the noticed date of intended removal. The request shall provide contact information for the appellant and shall state with particularity the basis for objections to the intended removal. The city manager shall schedule a hearing upon not less than ten (10) calendar days' notice to M the appellant. At the hearing, the appellant shall have the opportunity to present oral and written evidence and arguments why the newspaper box or newspaper rack should not be removed. Removal of the newspaper rack or newspaper box by the director shall be stayed pending final decision of the city manager, which shall be issued in writing within ten (10) calendar days after the conclusion of the hearing. The decision of the city manager shall be final. 3. Procedures. On or after the date noticed for removal of a newspaper rack or newspaper box, if the permittee or publisher to whom a notice was sent has neither requested a hearing nor remedied the violation, or if, following an appeal hearing, the city manager has issued a final decision for removal, the director may proceed to remove the newspaper box or newspaper rack. Removed newspaper boxes or newspaper racks shall be impounded by the Department of Public Works for a period of thirty (30) calendar days and may be retrieved by their owners during that time, subject to payment of any impound fees which may be established by resolution of the City Council. Any newspaper racks or newspaper boxes not claimed during the impound period shall be conclusively deemed to be permanently abandoned, and the City may dispose of them in its discretion. 4. Emergency removal. Notwithstanding the foregoing, whenever the director determines that a newspaper rack or newspaper box poses an immediate threat or danger to the public safety, including pedestrians and vehicles, the director may cause such newspaper rack or newspaper box to be removed immediately without following the procedures for removal set forth in this subsection (A). In the case of such emergency removal, if permittee or publisher identification is clearly ascertainable from the permit or the face of the newspaper box or newspaper rack, written notice of the removal and an opportunity for a hearing by the director to contest the removal shall be provided within ten (10) calendar days following the removal. B. Suspension or revocation of permit. 1. Grounds. Any newspaper rack encroachment permit may be suspended or revoked by the director where he or she finds that: a. The permittee has violated any provision of this chapter or any condition of the permit; b. The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; c. The encroachment for which the permit was granted adversely affects the safety, capacity, or integrity of the city's right-of-way or increases the city's liability exposure; d. The encroachment is causing the city to incur substantial additional maintenance costs; or e. Material misrepresentations, omissions, or inaccuracies were made in the application for the permit. 2. Notice of hearing. The director shall give the permittee at least ten (10) calendar days written notice of a hearing on the suspension or revocation of a permit used pursuant to this chapter, setting forth the grounds for such action. The hearing shall be held within thirty (30) days after service of written notice of the hearing or at such later time as may be agreed to by the permittee. The decision of the director may be appealed to the city manager under the procedures provided in subsection (A)(2) of this section. The decision of the city manager on an appeal shall be final. 9 C. Remedies Cumulative. All remedies available to the City under this code shall be alternative to or in addition to or in conjunction with, and not exclusive of, one another. The election of remedies shall be at the sole discretion of the City. DIVISION 5: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordi- nance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 6: This Ordinance shall be published once, in full or in summary form, before its final passage, in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. If published in summary form, the summary shall also be published within fifteen (15) days after the adoption, together with the names of those Councilmembers voting for or against same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. ATTEST: ESTHER BEIRNE, City Clerk 1() i GP 7� S, Mayor The foregoing Ordinance No.1915 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 18th day of November, 2013 and ordered passed to print by the following vote, to wit: AYES: Councilmembers: Colin, Connolly, Heller, McCullough & Mayor Phillips NOES: Councilmembers: None ABSENT: Councilmembers: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 2nd day of December, 2013. ESTHER BEIRNE, City Clerk 11