HomeMy WebLinkAbout19- Ordinance 2027 Revising the Downtown Sidewalk Encroachment Permit Program s
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ORDINANCE NO. 2027
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA REVISING BOZEMAN MUNICIPAL CODE CHAPTER 34, ARTICLE 5,
DOWNTOWN SIDEWALK ENCROACHMENT PERMIT PROGRAM.
WHEREAS,the City of Bozeman("City")has adopted a growth policy identifying
the Bozeman downtown area as important to community character and economic development
policy; and
WHEREAS,the City has adopted a downtown Bozeman neighborhood
plan identifying Bozeman's historic core as unique for the region and should be used to increase
economic competiveness; and
WHEREAS,the City has adopted a Downtown Sidewalk Encroachment
Permit Program which regulates and controls private uses and encroachments occurring upon
public rights of way sidewalk businesses and advertising in the Downtown Business District;
and
WHEREAS,the City has adopted a Downtown Sidewalk Encroachment
Permit Program that is fair and equitable, enhances the overall appearance, ambiance and
environment of the Downtown Business District, and protects the health, safety and welfare of
the general public; and
WHEREAS,the City has, over time, identified aspects of the Downtown Sidewalk
Encroachment Permit Program that should be amended to further these purposes.
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Ordinance 2027,Establishing a Doivntotivn Sidewalk Encroachment Pernsit Program
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That Section 34.05.010 of the Bozeman Municipal Code be amended as follows:
Sec. 34.05.010. -Purpose and intent.
A. It is the intent of the city commission, in enacting the ordinance from which this article is
derived, to:
1. Serve and protect the health, safety and welfare of the general public;
2. Regulate and control private uses and encroachments occurring upon public rights of
way in the downtown business district of the city by establishing distinct criteria to permit
and/or approve non-substantial encroachments,substantial encroachments,and exclusive
uses;
3. Develop a fair and equitable program that will enhance the overall appearance, ambiance
and environment of the downtown business district; and
4. Ensure accessibility for all users as established under the Americans with Disabilities Act.
Section 2
That Section 34.05.020 of the Bozeman Municipal Code be amended as follows:
Sec. 34.05.020. -Definitions.
A. The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section,except where the context clearly indicates a different meaning:
1. 'Block face" means one side of a street between two consecutive intersecting rights of
ways, including alleys;
2. "Devvi#ovm business distr4et"means those areas of the B 2 and B 3 zoning distfiet of the
eity located on or- between the noAh side of Lamme Street and the south side of Olive
Stfeet and on or between the east side of Broadway A�venue and west side of 3r-d A-venue;
-2. "Commercial use" means any activity involving the sale of goods or services carried out
for profit;
3. "Corner triangle area"means the sidewalk area at street intersections from each building
face to where the sidewalk curb meets each of the two crosswalks that contain the
accessible ramps at the intersection and the sidewalk area in between the two crosswalks.
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Program
4. "Director" means the director of public works and includes the director's authorized
representative;
25. "Downtown business district" means those areas of the B 2 and B-3 zoning district of
the city located on or between the north side of Lamme Street and the south side of Olive
Street and on or between the east side of Broadway Avenue and west side of 3rd Avenue;
-56. "Encroachment" means any fixture or device including but not limited to a showcase,
table,bench,rack,handcart,pushcart,sign,portable sign, stall,newspaper dispensers and
publication racks, seating area, fence, barrier, or partition which intrudes into or invades
the public right-of-way;
67. "Exclusive use" means any act undertaken by a private entity upon the public right-of-
way of the downtown business district that excludes the public from their normal use and
enjoyment of the public right-of-way;
8. "Frontage zone"means the space between the building front and the pedestrian zone. The
frontage zone provides the shy distance from the building and buffers the pedestrian zone
from doorways and other store front uses. The frontage zone generally accommodates
benches, portable business signage, merchandise displays, or cafe seating.
9. "Furnishings zone" means the space between the curb and the pedestrian zone. The
furnishings zone is the area of the sidewalk generally reserved for street furnishings such
as street signs, bike racks, garbage or recycling receptacles, or street trees.
-710. "Non-substantial encroachment" means any encroachment occurring upon the public
right-of-way of the downtown business district that is temporary and mobile in nature and
does not modify the material components of the public right-of-way;
11. "Pedestrian zone" means the primary, accessible pathway that ensures that pedestrians
have a safe and adequate place to walk. This zone is generally located in the center of the
sidewalk and allows people to move along the sidewalk.The pedestrian zone lies between
the frontage zone and the furnishing zone.
.812. "Permanent" means a period of six months or more;
313. "Portable sign" means any sign not permanently attached to the ground or other
permanent structure, or a sign designed to be transported, including but not limited to
signs designed to be transported by means of wheels and signs converted to A- or T-
frames;
4014. "Public right-of-way" means any area legally open to public use, including but not
limited to, and projecting vertically skyward above, public streets, sidewalks, roadways,
highways, parkways, alleys, or parks as well as areas surrounding and immediately
adjacent to public buildings;
4415. "Public use" means any normal use of the public right-of-way as distinguished from
"exclusive use" as defined under this article;
4-216. "Side street" means all streets within the downtown business district that run in a
north-south direction.
4-317. "Sidewalk" means all that area legally open to public use as a pedestrian public way
between the curbline and the legal building line of the abutting property;
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Prograrn
4-418. "Sidewalk cafe" means any group of tables, chairs, benches, barriers or partitions,
trash containers and suitable decorative devices maintained upon any part of the public
right-of-way for use by an establishment with a valid food and drink permit in the sale to
the public of food,refreshments, and beverages of all kinds and is not a sidewalk vending
cart;
4-519. "Sidewalk display" means any showcase,table, bench,rack, sign, stall,kiosk, or any
other fixture or device used for the purpose of displaying, exhibiting, carrying,
transporting, storing, selling, or offering for sale any food, beverage, goods, wares,
merchandise, event, or service upon a sidewalk;
4-620. "Sidewalk vending cart" means any handcart, pushcart, stall, or any other mobile
device that is used for the purpose of displaying, exhibiting, carrying, transporting,
storing, selling, or offering for sale any food, beverages, goods, wares, or merchandise
upon a sidewalk;
4-721. "Special event" means any occasion including but not limited to fairs, shows,
exhibitions, city-wide celebrations, and festivals taking place within a specifically
defined area of the city; and
4-922. "Substantial encroachment" means any encroachment that creates a permanent
physical reduction in existing asphalt width to streets in the downtown business district
except for intersection curb bulbs installed for traffic calming or pedestrian safety
purposes;
4-923. "Temporary" means a period of six months or less.
Section 3
That Section 34.05.050 of the Bozeman Municipal Code be amended as follows:
Sec. 34.05.050. -Non-substantial encroachments; permit required.
A. A non-substantial encroachment may be placed upon sidewalks in the downtown business
district only if a permit is issued by the director as described herein, and only during the
period authorized b, s�permit.
B. Upon application,the director may authorize, subject to specific conditions as determined
by the director, non-substantial encroachments to occur upon sidewalks in the downtown
business district. Each permit must be renewed on an annual basis and the director shall
have the right to refuse to renew any permits issued. All applications for non-substantial
encroachments must include:
1. A completed downtown sidewalk encroachment revocable permit form including any
necessary supporting materials;
2. A letter of support from the owner, operator, or manager of the business immediately
adjacent to the sidewalk where the use is requested or ;f " lottor of suppoft ""rr^t be
obtained, an ex-planation sufffinafizing the laek of suppo-A.1-
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Program
3. A sketch depicting, as accurately as possible, the size and location of all requested
encroachment items as well as other existing obstructions or improvements which would
limit the free use of the sidewalk by pedestrians;
4. A certificate of liability insurance which names the city and (if non-substantial
encroachment occurring upon a state-designated primary or urban route) the state as
additional insureds. The insurance must provide a minimum coverage of$750,000.00 for
each claim and$1,500,000.00 for each occurrence;
5. The permit holder shall agree in writing to indemnify, defend, and hold harmless the city
and(if non-substantial encroachment occurring upon a state-designated primary or urban
route) state department of transportation and their employees and agents against all
claims, liability, loss, damage, or expense incurred by the city and/or state department of
transportation due to any injury to or death of any person or any damage of property
caused by or resulting from the activities for which the permit is granted; and
6. A valid city business license corresponding to the use requested.
Section 4
That Section 34.05.060 of the Bozeman Municipal Code be amended as follows:
Sec. 34.05.060. - Substantial encroachments—Approval required.
Every substantial encroachment in the downtown business district requires a valid permit
issued by the director as described herein. Substantial encroachments in a public right-of-way of
the downtown business district may occur only after a project proposal satisfies provisions of
chapter 38, is found to be compliant with required regulations of same, and satisfies specific
conditions as determined by the director. Projects proposing substantial encroachments shall
submit to the city engineer for approval a report certified by a professional engineer addressing
the following conditions, both present and future: truck turning movements,vehicular site vision,
pedestrian conflicts, and, as directed by the city engineer, intersection level of service.
Substantial encroachments affecting state-designated primary and urban routes shall also be
approved by the state department of transportation. Substantial encroachment projects shall
satisfy all applicable emergency service requirements.
Section 5
That Section 34.05.070 of the Bozeman Municipal Code be amended as follows:
Sec. 34.05.070. - Same—Standards, exceptions and limitations.
A. To protect public health, safety and welfare, and provide for the orderly development of the
downtown business district, the following standards, exceptions and limitations are hereby
placed upon substantial encroachments:
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Ordinance 2027, Establishing a Downtown Sidewalk Encroachment Permit Program
1. Substantial encroachments shall not occur within the public right-of-way of Main Street
and Rouse Avenue;
2. Substantial encroachments shall occur along the entire length of a property;
3. Two-way traffic (or two-lane traffic for one-way streets) shall be provided at all times
and in all locations;
4. A minimum I I-foot-wide vehicular travel lane shall be provided,measured from face of
curb or edge of parking lane.
5. A minimum seven-foot-wide parking lane shall be provided,measured from face of curb;
6. Sidewalk alterations shall provide a minimum six-inch-thick,ten-foot-wide sidewalk for
public use and shall be ADA compliant;
7. Curb alterations shall provide positive drainage and shall not cause ponding to occur in
the gutter line. City curb construction standards shall be adhered to;
8. Construction plans shall be reviewed and approved by the city engineer and a pre-
construction meeting held prior to initiating construction;
9. Substantial encroachments involving the elimination of any on-street parking within that
area of the B-3 zoning district regulated under this article shall provide the following:
a. Parking commission approval; and
b. Compensation shall be provided for each on-street parking space eliminated from
the downtown business district parking inventory in accordance with the following
schedule:
(1) A one-time payment, equal to the current cash in lieu of parking fee as
established by resolution of the City Commission $5-,O0O,00per eliminated
space. Payment shall be provided prior to final approval of the proposal under
chapter 38; or
(2) The applicant may elect to pay for the eliminated space over a period of time
not more than ten years, making equal monthly payments of principal and
interest. Interest will be charged at a rate equal to the current yield of the ten-
year U.S. Treasury Note at the time the space is eliminated against a $5,000.00
principal amount equal to the cash in lieu of parking fee as established by
resolution of the City Commission.
10. The adjacent property owner shall keep all sidewalk areas, including those areas of
exclusive use, free and clear of snow and ice at all times.
Section 6
That Section 34.05.100 of the Bozeman Municipal Code be amended as follows:
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Program
Sec. 34.05.100. -Uses Encroachments permitted under this article; additional standards.
A. It is the permittee's responsibility to place any encroachments allowed under this article in a
manner which ensures safe pedestrian and vehicular travel, complies with any conditions
placed upon the permit, and to immediately correct any deficiencies noted by the director.All
items permitted pufstiant to this ai4iele shall be plaeed not less than two feet from the eufb, o
not less than 19 inehes f+om the eufb when loeated on side streets that have no adjaeeiit on
street par-king, and leave a minimum of six feet of sidewalk aisle eleaf a Encroachments
shall be placed so as to not interfere with vehicular sight triangles as set forth in chapter 38,
and as necessary for safe vehicular traffic. Additionally, n ener-oaol,,, ents permitted under-
this aftiele �Mll—be Permittees must buil_dt, installed, and maintained all encroachments
permitted under this article in such as a manner as to ensure the safety of the public.
B. To ensure accessibility and to reduce congestion, no encroachments will be allowed in the
corner triangle area. Permits may be issued under this .,,.tiele for the following uses:
C. No encroachment may restrict the pedestrian zone to less than six feet, measured
perpendicularly to the buildingface.
ace.
D. Pedestrian zone.
1. Encroachments are prohibited in the pedestrian zone.
2. The pedestrian zone must be a minimum of six (6) feet wide.
F. Furnishings zone. Except as otherwise noted, no encroachments other than those listed here
shall be permitted in the furnishings zone:
1. Traffic control devices and signs authorized by the Montana Department of
Transportation and/or the city;
2. Items installed and maintained by the Downtown Bozeman Partnership (or successor
entity charged with administering the downtown business improvement district) such as
garbage receptacles, street ling, bike racks,planters, signs;
3. Additional bike racks placed by businesses with approval of the director and complying
with 34.05.100.G.4.
4. Public art installations licensed b, thy_
G. Frontage zone. Permits may be issued under this article for the following encroachments in
the frontage zone only, except as provided otherwise herein:
1. Benehes, Any benehes must be plaeed flush to the eoffesponding building and must not
prej oet more than+hfee f of into the side,a4k;
1. 2 Portable signs. These signs must not exceed a height of five feet or a width of three
feet,placed adjacent and perpendicular to the corresponding huild-ift business and within
four feet of the business entrance;
2. 3.Sidewalk displays. With the exeeptio fkiosks-,dDisplays must be placed flush against
the building, must not exceed six feet in height, and must be within four feet of the
business entrance.
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Program
4. Kiosks. Kiosks iymst not exeeed seven feet in height, wceept as allowed in seetion
38.28.070.E, and niust be plaeed in a manner so as not to inteffefe with ftee flow-of
3. 5- Bike racks. A single bike rack mawpermitted to supplement those installed and
maintained by the Downtown Bozeman Partnership (or successor entity charged with
administering the downtown business improvement district) and can be located in the
frontage zone or in the furnishings zone,but are not permitted in the coiner triangle area.
Bike racks must not exceed a ten-bike capacity with five bikes per side, or a width of 4
feet,whichever is less.Bike racks shall and be placed so the parked bikes run parallel with
the street;
4. 6-: Sidewalk vending carts. The cart must be no more than three feet wide, must be
placed within 4.5 feet of the store face, and may opffate between 6:00 a.m. and o.nn r
ertmtil stmset, wr iehever oeeur-s fir All signage must be attached to the cart and shall
not exceed six feet in length. The eity, at its diseretio and upon fequest, may allow the
use of a ,.,,,,.,able sign. Vending carts will be allowed on Mendenhall, Main, and Babcock
Streets only and not more than one cart will be allowed per city block face;
5. 7-. Tables and chairs. Tables used for the primary purpose of consuming food or
beverages must be no more than four feet wide and set in a manner such that respective
table and chair settings do not occupy more than five feet of total right-of-way width.
seetion 34.05.130, and shall maintain at all times upon the pub4pe —A ffli
six foot wide ell r ,,isle for pedes r;amovem Tables and chairs while in use shall in
no way restrict the pedestrian zone to less than six feet, measured perpendicular) to
building face, subject to the provisions of section 34.05.130;
6. & Planter Boxes or Hanging pots. Pots for flowers or other miscellaneous items may
be hung from the rods extending from the light poles only. The bottoms of all pots must
not be lower than seven feet and shall not block street signs in any manner. Planter boxes
maybe placed flush against the building within 4 feet of the primary business entrance.
Planter boxes shall not exceed the dimensions of 24 inches wide by 36 inches long by 36
inches tall. All plantings shall be watered and maintained in good condition;
7.9. Newspaper dispensers and publication racks. Coin-operated newspaper dispensers and
media publication racks and displays must be placed flush against the building and may
not exceed four feet in height and shall be of a design quality approved by the city;
9. 4-0. Sidewalk cafe serving alcohol.
a. All sidewalk cafes having an alcoholic beverage license shall be required to have the
staff of the establishments owning such sidewalk cafes serve all food, alcoholic
beverages and non-alcoholic beverages in the sidewalk cafe area only. Service of
alcoholic beverages in all sidewalk cafes shall be limited to persons seated at tables
in the sidewalk cafe site. The serving of alcohol shall be served in glasses and not in
paper or plastic products. Any person serving alcohol must have received alcohol
server training through a city-approved training program;
b. The sidewalk cafe alcoholic beverage license issued by the state must include, as
part of the licensed premises floor plan,the sidewalk cafe area. The use and operation
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Ordinance 2027,Establishing a Doivntoivn Sidewalk Encroachment Permit Program
of the sidewalk cafe area shall occur in accordance with the state-approved alcoholic
beverage license and a copy of the license shall be kept on file with the director of
public works and the director of community development;
C. Liability insurance required in section 34.05.080.A.2.c will cover the sidewalk cafe
area;
d. Each sidewalk cafe serving alcoholic beverages shall be responsible for policing the
area of the sidewalk cafe to be sure that customers are of legal drinking age and that
alcoholic beverages are not removed from the premises;
e. There shall be no sale of alcohol for consumption at a sidewalk cafe after 12:00
midnight until normal opening of business each day. In addition, all containers of
intoxicating beverages shall be removed from the tables of the sidewalk cafe and the
sidewalk cafe area by 12:00 midnight;
f. The sidewalk cafe area must be adjacent to the licensed building and shall be
enclosed, except for ingress and egress entry points, by a temporary fence approved
by the director of public works. The fence shall be:
(1) Black or of a color that matches the adjacent building;
(2) At least four feet in height; and
(3) Shall be of a design and quality that does not permit children or other persons
to crawl under the fence;
R. Cafe seating fence must be removed entirely from the sidewalk during winter,
between November 1 st and April 1 st.
10. Sidewalk Stickers. Temporary sidewalk stickers may be displayed for wa finding
purposes associated with community events. No commercial applications are allowed.
Stickers may not exceed 30" x 30". Stickers may_ not be installed longer than 7
consecutive calendar days.
11. 4-0. Miscellaneous items. The director of public works may permit other items as deemed
appropriate. The director shall place what restrictions and conditions the director deems
necessary to ensure the safe passage for pedestrian and vehicular traffic. Such additional
restrictions and conditions will be included in the encroachment permit if issued.
Section 7
That Section 34.05.0140 of the Bozeman Municipal Code be amended as follows:
Sec. 34.05.140. - Fees.
A. Non-substantial encroachments. A $4-050.00 fee shall be charged for non-substantial
encroachments which shall be provided with each new application/renewal of a downtown
sidewalk encroachment revocable permit. Fees shall go to the Public Works Administrative
account.
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Program
B. Substantial encroachments. Application fees authorized in chapter 38 shall be provided.
C. Exclusive uses. A fee calculated by multiplying the square-foot area of the right-of-way
encumbered by the exclusive use of same, by the total final square-foot land value of the
adjacent property (as determined in the most recent appraisal by the state department of
revenue for ad valorem property taxation purposes), multiplied by the whole-month
percentage of the calendar year the exclusive use is occurring, multiplied by a factor of five
percent shall be assessed and provided with each downtown right-of-way exclusive use permit
application and annual renewal.
Section 8
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby,repealed and all other provisions of the ordinances of
the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force
and effect.
Section 9
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section 10
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
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Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Program
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 11
Codification.
This Ordinance shall be codified as indicated in Section 1 —7.
Section 12
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
Page 11 of 12
Ordinance 2027,Establishing a Downtown Sidewalk Encroachment Permit Prognan
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 4th day of Nov4eml019.
YNT
Mayor
O ZE4'
ATTEST: . • • ■ .
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• �.i :� ■z
ROBIN CROUGH t� +• : , •��
City Clerk •
I nT IN co
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the 18th of
November, 2019. The effective date of this ordinance is December 18, 2019.
THIA L. R-
ayor
ATTEST: ,�,`
O ,
ROBIN CROUGH
City Clerk - * - �✓�"���� =•
03 ,•'�� .
APP D A FORM:
GRe6 S LLIVAN
City Attorney
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