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HomeMy WebLinkAboutOrdinance 254ORDINANCE 254 AN ORDINANCE ADDING ARTICLE 10-40 TO THE SARATOGA CITY CODE RELATING TO NEWSRACKS THE CITY COUNCIL OF THE CITY OF SARATOGA DOES ORDAIN AS FOLLOWS: Section 1. Adoption. Article 10-40 is added to the Saratoga City Code to read: 10-40.010 Purpose and Findings The purpose of these regulations is to acknowledge and achieve the following: a. There is a substantial governmental interest in promoting the public health, safety, welfare and convenience by ensuring that persons may reasonably use the public streets, sidewalks, rights-of--way, and other public property without interference with such use and by ensuring that the streets are maintained in an aesthetically pleasing manner that avoids congestion and clutter of structures on sidewalks and other public rights of way. b. Newsracks placed and maintained on the streets, sidewalks or other public rights-of--way, absent some reasonable regulation, can under certain circumstances unreasonably interfere with the use and enjoyment of such streets, sidewalks and public rights-of--way, and present hazards to persons or property. c. The streets, sidewalks and public rights-of--way are historically associated with the distribution of newspapers and other publications, and access to and use of these areas for such purposes is not to be denied except where such use unreasonably interferes with the use of these areas by pedestrians or traffic, where such use presents a hazard to persons or property, or where such use is carried out in a manner that creates congestion and clutter or detracts from the design of the surrounding streetscape. d. Reasonable accommodation of these competing interests can be achieved by adoption of this Article, which imposes time, place or manner restrictions which regulate the placement and maintenance of newsracks. e. The public health, safety, welfare and convenience require that: 1. Interference with vehicular, bicycle, wheelchair or pedestrian traffic be avoided; 2. Obstruction of sight, distance and views of vehicular traffic, traffic signs and street- crossingpedestrians be eliminated; 3. Damage done to sidewalks or streets be minimized and repaired; 4. The good appearance of the public streets and grounds be maintained; 5. Trees and other landscaping be allowed to grow without disturbance; 6. Access to emergency and other public facilities be maintained; and 7. Ingress and egress from properties adjoining the public rights-of--way be protected. g. The regulation of the distribution of newspapers and other publications dispensed in newsracks as set forth in this Article provides the least intrusive and burdensome means for ensuring the purposes stated in this section are carried out while still providing ample opportunities for the distribution of news and other printed matter to the residents of the City. This Article applies only to newsracks on public property and does not apply on private property. Page 1 of 9 10-40.020 Definitions For the purposes of this Article, the following words and phrases shall have the meanings respectively ascribed to them by this section, unless the context or the provision clearly requires otherwise: a. Abandoned newsrack means any newsrack which contains no printed material supplied by the newsrack permittee for fourteen consecutive calendar days, except that a newsrack remaining empty due to a labor strike or any temporary and extraordinary interruption of distribution or publication by the newspaper or other publication distributed from that newsrack shall not be deemed abandoned. b. Newsrack Permit Administrator means an employee of the City of Saratoga working within the Community Development Department and designated by the Community Development Director to manage and process the implementation and enforcement of a violation under this Article. c. Newsrack Appeal Officer means the Director of the Community Development Department authorized to hear appeals of decisions of the Newsrack Permit Administrator. d. Newsrack means any box, container, storage unit, or other dispenser installed, used or maintained for the display and distribution of newspapers, periodicals or other printed matter. Newsrack includes both modular newsracks, which have more than one opening, and single newsracks, which have only one opening. e. Newsrack encasement means a City owned and maintained, modular receptacle inside which one or more privately owned newsracks may be placed. The newsrack encasement shall be large enough to accommodate a newsrack which complies with the standards of this Article, be permanently affixed to the ground or the side of a wall or other structure and be of a design which is architecturally compatible with the surrounding area. f. Public right-of--way has the same meaning as that term is defined in section 15-06.570 of the Saratoga Municipal Code. g. Roadway has the same meaning as that term is defined in section 9-10.150 of the Saratoga Municipal Code. h. Sidewalk has the same meaning as that term is defined in section 9-10.160 of the Saratoga Municipal Code. i. Single-slot opening means an individual opening within a modular newsrack. j. Street has the same meaning as that term is defined in section 9-10.180 of the Saratoga Municipal Code. k. Village has the same meaning as that term is defined in section 15-06.710 of the Saratoga Municipal Code. 10-40.030 Newsrack Permit Required No person shall place or cause to be placed a newsrack on public right-of--way unless such person (1) obtains a newsrack permit from the Newsrack Permit Administrator and (2) complies with all requirements of this Article. 10-40.040 Permit Requirements and Standards a. General. A newsrack permit is applicable only for the newsracks) and location(s) described in the permit. Page 2 of 9 b. Duration. A newsrack permit shall be valid for one year and shall be renewable annually. c. Permit Application. The newsrack permit application shall state the name, address and telephone number of those responsible for installation, use and maintenance of the newsracks, and shall describe, with particularity, the model and design of the newsrack(s) and the location(s) proposed for installation. Contact information must be updated by the applicant within ten (10) days of any change. d. Review of Permit Application. The Newsrack Permit Administrator shall review each application to determine whether each proposed newsrack complies with the requirements of this Article. The Newsrack Permit Administrator shall, within thirty days of receipt of the permit application, either issue a newsrack permit or deny the application, in whole or in part, and notify the applicant in writing of the decision. If the application is denied, this notification shall include an explanation of the reasons for denial. A denial may be appealed in accordance with this Article. The authorization for any newsrack included in a newsrack permit shall be of no further force and effect if that newsrack becomes an abandoned newsrack. e. Amendments. A newsrack permit may be amended from time to time upon application for an amendment containing the information described in subsection (c), above, for each additional newsrack or location to be the subject of the permit. The Newsrack Permit Administrator shall review such applications in accordance with subsection (d), above. f. Encroachment Permits. A newsrack permit issued pursuant to this Article shall operate as an encroachment permit and no separate permit pursuant to Article 10-20 of this Code shall be required. g. Fees. If a newsrack permit fee has been established by the City Council no newsrack permit shall take effect until payment by the applicant of said fee. Any fee or fees adopted by the City Council shall not exceed the costs of processing permit applications, amendments and renewals, as well as the costs of maintaining newsrack encasements and enforcing this Article. The Newsrack Permit Administrator may also require a bond or other form of security in an amount reasonably necessary to ensure removal of each newsrack authorized by the newsrack permit in the manner required by this Article. h. Permit not a Bar to Enforcement. The issuance of a newsrack permit under this Article shall not prevent the City from subsequently enforcing this Article, if a violation is later found to exist. 10-40.050 Indemnification and Insurance Requirements a. Indemnification. Every newsrack permit holder shall agree, prior to the effectiveness of the newsrack permit, to indemnify and hold harmless the City, its officers and employees from any loss, liability, damage or cost sustained by any person or property, arising from the installation, operation or use of such newsrack; provided, however, that such obligation to indemnify and hold harmless the City, its officers and employees shall not extend to any loss, liability damage or cost resulting from the acts or property of another. b. Liability Insurance. Each newsrack permit holder shall, prior to the effectiveness of the newsrack permit, furnish to the City a certificate showing that the permit holder has then in force public liability and property damage insurance naming the City as an additional insured in an amount of not less than $250,000 minimum liability combined single limit (bodily injury and property damage) per person and per occurrence. The permit holder shall provide and keep in force that policy of public liability insurance during such time as it continues to own, operate, use, or maintain any newsrack on a public right-of--way in the City. The evidence of insurance filed with the City shall include a statement by the insurance carrier that 30 days' notice will be given to the City before any cancellation. Page 3 of 9 10-40.060 Design Standards for Newsracks a. Newsrack Models. Each newsrack shall be substantially equivalent to a 49-16 or 100 style (as manufactured by "Sho-Rack"), a KJ50/KJSSF (as manufactured by "K-Jack"), a M-30/M-33 (as manufactured by "National Newsvend"), a "armorhood 80 style" rack, or a "Ganset" rack, as determined by the Newsrack Permit Administrator consistent with the provisions of this section. b. Size Requirements. No newsrack shall be installed in a public right-of--way that does not meet the approved newsrack dimensions of not more than fifty-four (54) inches high including the pedestal measured from the ground to the top surface of the newsrack, not more than two (2) feet deep and not more than thirty (30) inches wide. c. Dangerous Design Prohibited. The design of a newsrack shall not create a danger to the persons using the newsrack in a reasonably foreseeable manner. d. Installation Standards. All newsracks shall be pedestal mounted and shall be permanently affixed to the ground, except as permitted under this Article. Newsracks shall not be chained or otherwise attached to a bus shelter, bench, street light, utility pole or sign pole, to any other single or modular newsrack, or to any tree, shrub or other plant. e. Height Requirements. The highest operable part of the coin slot, if provided for the newsrack, and all controls, dispensers and other operable components of newsracks shall not be greater than forty-eight (48) inches above the level of the adjacent pavement or sidewalk, nor lower than fifteen (15) inches above the level of the adjacent pavement or sidewalk. f. Compliance with the Americans with Disabilities Act. It is intended that the provisions of this Article shall be interpreted and applied consistent with accessibility standards of the Americans with Disabilities Act of 1990, P.L. 101-336, as amended. g. Color Requirements. The color of all newsracks shall be tones of brown. h. Advertising. A newsrack may display the logo or name of the publication it offers for distribution. A newsrack must also display the identification label required by section 10- 40.090(d). No other advertising or displays are allowed on the exterior of a newsrack. i. Newsrack Encasement Designs. The City may establish newsrack encasements in various parts of the City (e.g., the Village area). The City will consult with and consider any applicable design guidelines regarding the design, location, and size of the newsrack encasements. 10-40.070 Location Standards for Newsracks a. Location Standards. Newsracks shall comply with the following standards: 1. Permissible Locations. Newsracks shall only be placed near a curb or adjacent to the wall of a building, unless in a City approved encasement. The back of newsracks placed near the curb shall be placed no less than eighteen inches nor more than twenty-four inches from the edge of the curb. The back of newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No newsrack shall be placed or maintained on a sidewalk or parkway opposite another newsrack or a kiosk which distributes primarily newspapers, periodicals or other publications. 2. Roadways and Streets. No person shall install, stock, or maintain any newsrack which projects onto, into or over any part of the roadway or street of any public right-of--way, or which rests, wholly or in part, upon, along or over any portion of a roadway or street. 3. Prohibited Locations. No newsrack shall be placed, installed, used or maintained: a. Within ten feet of any marked or unmarked crosswalk as measured from the curb return; Page 4 of 9 b. Within five feet of any fire hydrant, fire callbox, police callbox, or other emergency facility; c. Within five feet of any driveway. d. Within five feet of any bus bench; e. Within five feet of any red curb of a bus stop zone; f. Within five feet of any blue curb or a disabled parking zone; g. In such a manner as to obstruct pedestrian or driver views of traffic signs or oncoming traffic; h. At any location where the clear space for the passage of pedestrians is reduced to less than six feet; i. In such a manner as to impede or interfere with the reasonable use of any commercial window display; j. Within fifteen feet of the curb return of any wheelchair curb ramp not in a marked crosswalk; k. Within a landscaped area; 1. In such a manner as to unreasonably obstruct or interfere with access to or the use and enjoyment of abutting property. 4. Other Prohibited Locations. No person shall install, stock, or maintain any newsrack which in whole or in part rests upon, in or over any sidewalk, when such installation, use or maintenance either (1) endangers the safety of persons or property, (2) is in a location used for public utility purposes, public transportation purposes or other government use, or (3) unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including handicapped access, the ingress into or egress from any residence, place of business, or the use of poles, posts, traffic signs or signals, hydrants, postal service collection boxes or other objects permitted at or near such location. b. Limitations on Proximity of Newsracks. Newsracks shall be placed next to each other whenever feasible. However, no group of newsracks placed along a curb shall extend for a distance of more than eleven (11) feet. A newsrack may not be located on the same block within fifty (50) feet of a group of newsracks unless there is no other suitable location within one hundred (100) feet of the proposed location, in which case it may be located no less than four feet from that existing group of newsracks. c. Use of Newsrack Encasements. Where a newsrack encasement has been provided by the City at a given location, and there is available space in that newsrack encasement, no newsracks may be installed outside of the newsrack encasement on the same block as the encasement. If adequate space in existing newsrack encasements does not exist, the City shall construct a new or expanded newsrack encasement within 30 days or shall permit the applicant to install a newsrack adjacent to the newsrack encasement until such time as the City constructs a new or expanded newsrack encasement. 10-40.080 Special Newsrack Regulations in the Village a. Findings. The City has determined that the Village is a unique, historic area of the City. Because of numerous complaints from merchants in the Village, and in light of the special aesthetic concerns and the extensive pedestrian use of the area, special regulation of newsracks in the Village is necessary. In light of the unique conditions in the Village the City will install newsrack encasements in the Village. b. Use of Newsrack Encasements Mandatory. Within the Village, no newsrack may be located except within a newsrack encasement. If adequate space in existing newsrack encasements does not exist, the City shall construct a new or expanded newsrack encasement Page 5 of 9 within 30 days or shall permit the applicant to install a newsrack adjacent to the newsrack encasement until such time as the City constructs a new or expanded newsrack encasement. 10-40.090 Maintenance and Removal a. Regular Maintenance Required. Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. For example, without limitation, the newsrack shall be reasonably free of dirt and grease, be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no broken or cracked plastic or glass parts, and have no broken structural parts. b. Adhesive Labels Prohibited. Adhesive labels, other than City issued identification/approval labels and advertising permitted pursuant to section 10-40.060(h) shall not be displayed on newsracks. c. Coin-Return Mechanisms. Each newsrack which requires the deposit of money to obtain the publication shall be equipped with acoin-return mechanism to permit persons using the machine to secure a refund in the event they are unable to receive the publication paid for. The coin-return mechanism shall be maintained in good working order. d. Contact Information. Every person maintaining a newsrack under the terms of this Article shall have his or her name, current address, and telephone number (updated within ten (10) days of any changes) and permit number affixed to it in a place where such information will be readily visible and shall include, with such identification, instructions on how to receive a refund in the event of coin-return malfunctions. e. Removal. Upon the removal of a newsrack, the public right-of--way shall be returned to its original condition including but not limited to the refilling of holes installed for purposes of securing the newsrack. Any bond or security furnished to the City in connection with a newsrack permit shall be returned to the newsrack owner upon removal of a newsrack in accordance with this section. 10-40.100 Display of Certain Material Prohibited No person shall sell, offer for sale, keep or maintain for sale, or distribute, or place or maintain harmful matter, as such term is defined in Section 313 of the Penal Code of California, in any newsrack on any public right-of--way. 10-40.110 Enforcement and Abatement a. Declaration of Public Nuisance. Any newsrack in violation of this article shall constitute a public nuisance. b. Removal of Newsracks. Abandoned newsracks, any newsrack not authorized by a newsrack permit that remains in effect, and any other newsrack otherwise in violation of this Article may be removed by designated City employees as provided in this section. c. Notice Required. Before any newsrack is removed, the owner shall be provided notice of the violation and the City's intent to remove the newsrack. Notice shall be provided by posting on the newsrack. For newsracks authorized by a newsrack permit, notice also shall be mailed to the address for notice provided in the newsrack permit. The notice shall list the code sections being violated and shall provide the owner fourteen (14) days from the date of the notice to remedy the violation or file an appeal. The notice shall state the address and location to file an appeal of the notice of violation and intent to remove. Page 6 of 9 d. Opportunity to Contest Removal. Any person notified under this Article may file a request for reconsideration of the notice of violation and intent to remove with the Newsrack Permit Administrator. The Newsrack Permit Administrator shall set a time for a meeting with the appellant at least three (3) but not more than ten (10) business days following receipt of the request for reconsideration. The meeting shall be informal, but oral and written evidence maybe given by both sides. Any action by the City with respect to the alleged violation shall be stayed pending the decision of the Newsrack Permit Administrator following the meeting, which decision shall be rendered in writing no later than ten (10) business days after the meeting. The Newsrack Permit Administrator may give oral notice of the decision at the close of the meeting, but shall give written notice, as well, of all decisions. A decision of the Newsrack Permit Administrator maybe appealed as provided in section 10-40.120 of this Article. e. Removal. The City may remove a newsrack if, following issuance of the notice of violation and intent to remove, the person responsible for the newsrack has (1) not timely filed a request for reconsideration with the Newsrack Permit Administrator or (2) not timely remedied the violation. If a request for reconsideration has been filed the City may remove the newsrack that was the subject of the request for reconsideration fourteen (14) days after the request for reconsideration or appeal was denied if no further appeal has been filed with either the Newsrack Appeal Officer or the City Council. Within three (3) days of removing said newsrack the City shall notify the permit holder, if any, of the removal and of the opportunity to recover the newsrack within 45 days of the date of removal. Where the newsrack was placed without a permit the City shall provide notice to any persons provided notice in connection with the initial notice of violation and intent to remove and any persons who filed an appeal of said notice. f. Summary Removal for Dangerous Newsracks. Notwithstanding the provisions of subsection (c) of this section, prior notice of removal is not required where the newsrack poses a danger to pedestrians or vehicles. The City shall, within three (3) days of removing said newsrack, provide notice and an opportunity to contest the removal of the newsrack in substantial compliance with the provisions of this section. g. Recovery of Removed Newsracks. Removed newsracks shall be retained and may be recovered by their owner within forty-five days of their removal. The owner shall pay an impound fee recovering the actual cost to the City of removing, transporting, and storing said newsrack. Newsracks removed by the City shall be retained within the City of Saratoga. Newsracks which are not claimed within forty-five days shall be deemed permanently abandoned and shall be disposed of. If a bond or other security has been filed with the City in connection with a newsrack that has been removed, said bond or security shall be paid to the City. No recovery fee shall be required of an owner of a newsrack for which the City has recovered a bond or other security. h. City Recovery of Costs. The cost of investigating, removing and storing newsracks under this Section shall be chargeable as a civil debt to the owner thereof and may be collected by the City in the same manner as it collects other civil debts or obligations, provided, however, that no costs shall be chargeable for any amount recovered by the City pursuant to a bond or other security filed in connection with a newsrack. i. Remedies Cumulative. The enforcement and abatement provisions provided in this section are a cumulative remedy and supplement the City's ability to enforce this provision under other procedures specified in this Code. Abatement under this section does not constitute a defense to any proceedings which may be employed simultaneously pursuant to the general provisions of this Code. Nothing in this Article shall be construed to limit any right or remedy otherwise available in law or equity to any party harmed by a newsrack, nor shall this Article in any way limit the City's right to enforcement under any other provision of this Code or create a duty or obligation on the part of the City to enforce this Article. Page 7 of 9 10-40.120 Appeals a. Appeals of Permit Denials. If a permit application is denied by the Newsrack Permit Administrator, the applicant shall have ten calendar days within which to appeal that decision to the Newsrack Appeal Officer. The Newsrack Appeal Officer shall conduct a de novo review the decision of the Newsrack Permit Administrator. The review shall be informal, but oral and written evidence maybe given by both sides. If the denial of the permit application is upheld by the Newsrack Appeal Officer, the applicant may appeal that decision to the City Council, in accordance with the appeals provisions of Section 2-05.030 of this Code. b. Appeals of Removal Orders. If the Newsrack Permit Administrator denies a request for reconsideration of a decision to remove a newsrack under section 10-40.110, the applicant shall have ten calendar days within which to appeal that decision to the Newsrack Appeal Officer. The Newsrack Appeal Officer shall conduct a de novo review the decision of the Newsrack Permit Administrator. The review shall be informal, but oral and written evidence maybe given by both sides. If the removal order is upheld by the Newsrack Appeal Officer, the applicant may appeal that decision to the City Council, in accordance with the appeals provisions of Section 2- 05.030 of this Code. 10-40.130 Compliance Period Every pre-existing newsrack located within a public right of way in the City shall comply with all provisions of this Article and obtain a newsrack permit within three (3) months of the date the City Council adopts a notice of completion confirming that the newsrack encasements in the Village have been completed or be voluntarily removed. Thereafter, any newsrack not in compliance shall be subject to enforcement as provided in section 10-40.120. Every new newsrack proposed in the City after the notice of completion has been adopted shall comply with the provisions of this Article. Nothing contained herein shall limit the City's authority to remove newsracks that are a threat to public safety during the three month compliance period. Section 2. California Environmental Quality Act. Pursuant to the California Environmental Quality Act, this action is exempt under CEQA Guidelines Section 15308 (the amendment is exempt because it assures the maintenance, restoration, enhancement, or protection of the environment). Section 3. Severability. If any section, subsection, sentence, clause, phrase or part of this article is for any reason held to be invalid or unconstitutional by the final decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining parts of this article and the remaining portions of this ordinance shall remain in full force and effect. Page 8 of 9 Section 4. Publication. This ordinance or a comprehensive summary thereof shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. The foregoing ordinance was introduced and read at the regular meeting of the City Council of the City of Saratoga held on the 19th day of September, 2007, and was adopted by the following vote following a second reading on the 3rd day of October, 2007: COUNCIL MEMBERS: AYES: Councilmembers Jill Hunter, Kathleen King, Chuck Page, Vice Mayor Ann Waltonsmith, Mayor Aileen Kao NAYS: None ABSENT: None ABSTAIN: None SIGNED: A Aileen Kao, MAYOR OF THE CITY OF SARATOGA Saratoga, California APPROVED AS TO FORM: Richard Taylor, CITY ATTORNEY Cathy BC CLERK OF Saratoga, C. Page 9 of 9 CITY OF SARATOGA