HomeMy WebLinkAboutPolicy Discussion on Substantial Long-Term Encroachment into Public Right-of-Way.pdf Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brian Heaston, Project Engineer
Allyson C. Bristor, Associate Planner
Rick Hixson, City Engineer
Chris Saunders, Interim Planning Director
Paul Burns, Parking Manager
Chuck Winn, Assistant City Manager
Chris Kukulski, City Manager
SUBJECT: Policy Discussion of Substantial Long-Term Encroachment into Right-of-Way
MEETING DATE: February 1, 2010
AGENDA ITEM TYPE: Action Item.
RECOMMENDATIONS:
A) For the City Commission to determine if substantial long-term encroachment into public right-
of-way is something they conceptually want to allow and permit; and
B) Direct City Staff to develop a policy plan that regulates requests of substantial long-term
encroachment into public right-of-way.
BACKGROUND: The Department of Planning received a Site Plan/Certificate of Appropriateness
application in December 2009 from property owner and applicant Delaney & Co., Inc. The application
proposes construction of a covered sidewalk café in the public right-of-way of North Black Avenue. The
café would encumber the entire width of the existing sidewalk on the east side of the street along a
majority length of the half-block from Main Street to the alley. A 10’ wide sidewalk expansion is
proposed to replace the public sidewalk lost to the café, which creates a 10’ reduction in asphalt width
along the half-block length. This would eliminate five on-street parking spaces on the east side of the
street in order to provide two-way traffic and parking on the west side. Please see the attached site plan
of the proposal. (NOTE: The Site Plan/COA application is not requiring action by the City
Commission at tonight’s hearing. City Staff requested the application to be opened and continued
to the public hearing on February 8, 2010 so to allow this policy discussion to occur prior).
During the preliminary review of the application, City Staff quickly acknowledged the appropriateness of
outdoor sidewalk cafes in a downtown commercial setting. Several examples currently exist along Main
Street and the idea to expand to the cross streets supports the idea of inviting pedestrians to explore
downtown areas beyond Main Street. Staff also identified that expanding a sidewalk into public right-of-
way is physically possible in design, as long as stormwater drains appropriately, minimum traffic lane
width is maintained, street lights and trees are accommodated, bike racks are supplied, etc.
Despite the general support of the concept, there are significant engineering, planning and legal concerns
(please see Tim Cooper’s attached memo) dealing with the policy of long-term encroachment into public
right-of-way. The concept is the first of its kind and precedent setting in nature. If repeated along several
downtown blocks, there is a greater chance it will impact the overall character of downtown and the
traffic network. Because of the policy implications and ramifications, City Staff is recommending the
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City Commission adopt a policy plan that regulates requests of long-term encroachment into public right-
of-way. A policy plan would ensure that all present and future applicants, proposing the same concept,
would be treated fairly and consistently. The City Commission may direct City Staff to develop a policy
plan for the Commission’s future consideration, with the understanding the development of the plan will
utilize several hours of employee time.
Downtown Sidewalk Encroachment Permit Program
Use of public right-of-way by private business occurs frequently in the downtown B-3 zoning district. A
program exists that controls these uses, or physical encroachments, in the right-of-way as codified in
Chapter 12.22 of the Bozeman Municipal Code, titled the “Downtown Sidewalk Encroachment Permit
Program.” This program is specific to the downtown core area bounded north and south by Mendenhall
and Babcock Streets, and west and east by 3rd and Broadway Avenues. It does not encompass the entirety
of the B-3 zoning district. Please note that construction-related encroachments, such as stockpiling
materials or placing roll-off dumpsters on the street, are handled separately as codified under Sections
12.12.030 thru 12.12.050 BMC and may apply to any city street.
Typically, the nature of encroachments permitted under 12.22 BMC are temporary and mobile as in the
cases of “sandwich board” signage, sidewalk retail displays, and food vending carts. However, the
program does include specific provisions permitting sidewalk cafés and there are existing examples
successfully implemented on Main Street. The City does not assess a fee for encroachments permitted
under 12.22, including the specific application of a sidewalk café.
The proposed North Black sidewalk café would be required to satisfy the provisions of the 12.22 BMC, as
does any sidewalk café. However, the proposal is characterized differently from existing sidewalk cafes
because of its substantial size of the encroachment into the existing sidewalk (i.e. 100% of existing width)
and the need to widen the sidewalk to replace the lost streetscape and pedestrian thoroughfare which
causes an unavoidable loss of on-street parking.
Effect on Public Parking & Parking Commission Review
The Bozeman Parking Commission discussed the concept of long-term encroachment into public right-of-
way and its effect on-street parking spaces at two public meetings. Please see enclosed draft minutes.
The Bozeman Parking Commission supports projects that bring vitality and energy to its parking districts.
The Parking Commission supports projects that are consistent with the guidelines of the Downtown
Improvement Plan and constitute a significant economic benefit for the downtown area. Such projects
must not significantly diminish the parking capacity, negatively impact the Parking Commission budget,
or compromise public safety. In the case of the downtown district, business proposals that have the
potential to increase visitors and guests should be given consideration.
Due to their proximity to Bridger Park Downtown, there are areas within the downtown parking district
where the loss of public parking spaces could be justified. Bridger Park Downtown offers an available
source of parking which enables us to consider innovative and exciting new projects.
As a result, the Parking Commission supports projects that may reduce the overall number of parking
spaces if the loss can be easily made up through utilization of Bridger Park Downtown. If a downtown
project within a certain distance of the garage called for an elimination of public parking spaces, the
Parking Commission may not view it as detrimental to its total inventory.
In fact, the Parking Commission encourages projects that would increase usage in the garage, provided
the project contributes to the overall economy vitality of downtown.
Therefore, the Parking Commission will consider supporting the elimination of public parking spaces in
the downtown district if
· those spaces are within 300 feet of an entrance to Bridger Park Downtown,
· the loss of spaces is vital to the success of the project, and
· the project is deemed beneficial for the greater community.
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The final determination of the overall community benefit will come from the City Commission. The
Parking Commission does, however, expect financial compensation for the loss of those spaces. All
public parking spaces are the Parking Commission’s inventory, and like any other enterprise,
compensation is expected when inventory is decreased.
The Parking Commission recommends that the price for a parking space in downtown Bozeman be set at
$35 per month. That amount is based on the price of a parking space within Bridger Park Downtown.
Therefore, the Parking Commission expects compensation at the rate of $35 per month per space for as
long as the said project takes public parking spaces out of the inventory.
In summary, the Parking Commission will consider supporting a private project that calls for the
elimination of public parking spaces in the district under the following conditions:
· the project is within 300 feet from an entrance to Bridger Park Downtown
· the elimination of public parking spaces is critical to the project’s success
· the City Commission agrees that the loss of parking space is justified
· the project provides monetary compensation to the BPC for the loss of public parking spaces
It is the Parking Commission’s goal that this specific project move forward. The Parking Commission
requests to have an active role in these discussions in the future to ensure its conditions are considered.
Policy Recommendations
The Delaney & Co. proposal is unique in that it proposes a substantial, long-term use of public right-of-
way for the special benefit of a private entity. The widened sidewalk, in essence, is a permanent feature
installed to support the long-term encumbrance the proposed café creates upon the right-of-way of North
Black. The effect the widening has upon downtown traffic patterns, parking, and drainage are important
considerations.
Furthermore, City Staff anticipates a desire amongst other downtown businesses to pursue similar
developments, and is already aware of one, located kitty-corner to this proposal at the southwest quadrant
of Black/Main. These types of proposals may be hazardous to pedestrians and vehicles when constructed
as isolated, standalone features and instead should be installed within the framework of an overall policy
plan.
Staff made contact with the major communities in the state to determine how they have addressed
comparable long-term right-of-way use scenarios. Their respective insights helped shape the
recommended policy considerations that follow and have proven valuable to City Staff. The City’s of
Helena and Billings have successfully implemented projects similar in character to the one prompting this
policy discussion, whereas Kalispell, Missoula and Great Falls have not.
Staff recommends the City Commission consider the following items when developing policy related to
substantial, long-term use of public right-of-way:
1. That the City Commission not approve present and future projects of this kind until overall
guidelines for such use have been established.
2. That the policy is effective specifically to the geographic area enforced under the existing
Downtown Sidewalk Encroachment Permit Program (i.e. area bounded north and south by
Babcock and Mendenhall Streets, and west and east by 3rd and Broadway Avenues).
3. That a method of compensation is developed for the loss of on-street parking caused by a
sidewalk expansion (see above section “Parking Commission Review” for more notes on this
issue).
4. That a method of annual compensation is developed for the substantial, long-term use of the
public right-of-way.
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5. That any improvements in the right-of-way installed to support the development (e.g. fencing,
raised seating areas, expanded sidewalks, etc.) be removed at the developer’s expense at the
discretion of the City if the Downtown Sidewalk Encroachment Permit is revoked or the adjacent
land-use changes.
6. That consideration is given to the size, number, and location of these types of projects. For
instance, restrict to one per block face, limit to one side of the street, limit to “local” streets,
proximity to public parking lots, etc.
7. That two-way traffic (or two-lane traffic in the case of Babcock and Mendenhall) is maintained
on all streets, at all times.
8. That a traffic study is performed for each proposed project analyzing the effects to the existing
traffic network and any adverse impacts mitigated.
FISCAL EFFECTS: Not fully identified. Depends on the scope of the policy, maintenance,
compensation, parking displacement are the fiscal issues that will need to be addressed in the policy plan.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Tim Cooper Memo
Parking Commission January 20
Draft Minutes
General Willson Building Site Plan
Report compiled on: January 27, 2010
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MEMORANDUM
TO: Brian Heaston, Project Engineer
Allyson Bristor, Associate Planner
FROM: Tim Cooper, Assistant City Attorney
DATE: January 27, 2010
SUBJECT: General Willson Building\Site Plan\COA\ Sidewalk Expansion\Encroachment
___________________________________________
RECOMMENDATION:
I recommend that the issue of granting private use of a public street be presented to the City
Commission for separate consideration prior to review of the proposed site plan.
DISCUSSION:
You reported to me that the application for the above site plan proposes expansion of the
existing sidewalk into the North Black Avenue right-of-way, and further, that the applicant
requests an encroachment permit for private use of the entire width of the existing sidewalk. It
is my opinion that granting long-term private use of the existing right-of-way is beyond the
scope and scale of an encroachment permit. Also, while a favorable approval of the concept
could prove beneficial, the potential implications of that approval necessitate broader
considerations.
Once a public right-of-way is established, the City has no power “to deny a citizen the right to
travel upon the highway and transport his property in the ordinary course of his business or
pleasure, though this right may be regulated in accordance with the public interest and
convenience. Ordinary use is the right of all.” The City cannot alienate the streets, or abdicate
its power over them.
Within certain limitations, and provided public use is not unreasonably interfered with, the City
may authorize a private use of streets. A City has no power to authorize the use of its streets for
a private purpose, other than for necessary and temporary uses, unless it has been granted the
power by constitutional, charter, or statutory provisions. In the absence of constitutional,
charter, or statutory provisions so permitting, a municipality has no power to authorize, other
than for necessary and temporary uses, the use of its streets for a private purpose, from which
neither the municipality nor its citizens derive any consideration or benefit.
The City’s Encroachment Permit Program, specific to the downtown area, and other
construction-related encroachments, authorize the private use of right-of-way for temporary,
revocable uses only. Applications are evaluated with reference to several factors, including
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spatial – the extent and scope of the encroachment, and temporal –the duration of the permit.
This proposal involves complete exclusion of public use on a relatively permanent basis.
Approval of the proposed use of the subject right-of-way may be considered the same kind of
grant as a franchise. A franchise is a special privilege conferred by the City on an individual or
corporation which does not belong to the citizens generally of common right. Utility companies
are normally required to pay a franchise fee to the municipality as compensation for the
privilege of using the streets.
The power to grant a franchise is a legislative function which has been delegated to the City by
statute. Section 7-5-4321, MCA, states in pertinent part:
(1) The council may not grant an exclusive franchise or special privilege to any person except in
the manner specified in subsection (2)....
(2) An exclusive franchise for any purpose ... may not be granted by any city or town or by the
mayor or city council to any person, association, or corporation without first submitting the
application for an exclusive franchise to the electors of the city at a regular or primary election.
Examples of public privileges granted as franchises to individuals and not enjoyed by the
citizens generally, include street railways laying tracks and operating cars on public roads;
telegraph and telephone companies erecting poles and wires across public and private lands;
and water companies tearing up streets and impeding travel to install and repair mains. A
municipal agreement with a gas company to install supply lines under city streets and thereby
monopolize sales granted a franchise was held by the Montana Supreme Court to require prior
voter approval.
In 1981, the Montana Legislature amended an earlier version of Section 7-5-4321, MCA by
inserting the term “exclusive” to modify “franchise.” To release cities from the requirement of
obtaining voter approval prior to granting a non-exclusive franchise to a utility or other entity,
the Legislature limited the application of Section 7-5-4321, MCA, to those instances when a
franchise agreement bars a city from granting the same special privilege to another within the
same period.
In a recent case, the Montana Supreme Court offered the following:
“[g]overnmental franchise law is not well developed in Montana. Indeed, the term
“franchise” in this context is not even defined … our statutes do little to insure that the
public interest is protected when local governments consider requests from businesses
seeking franchises.
Historically, traditional users of public property or rights-of-way such as monopoly
utilities were deemed to compensate the public in the form of universal services and
regulated rates in lieu of fees. In today's unregulated business environment that is no
longer the case, however. Government at all levels now actively encourages economic
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development. Moreover, many technologically based services-telecommunications being
the prime example-are expanding exponentially. Accordingly, our governmental leaders
shoulder greater challenges to, at one and the same time, promote economic
development; encourage viable competition; reach agreements that provide equitable
public compensation and fair use of public property and government licenses; address
environmental and land use concerns; protect public convenience and safety; and guard
against deteriorating service.
Unfortunately, Montana has failed to develop a comprehensive statutory scheme in this
complex area, with the result that the law of governmental franchises will likely develop
on a case by case basis in a manner that is reactive, not proactive, and is of marginal
guidance to governmental officials struggling with these issues.”
Granting the requested private use of public right-of-way implicates numerous policy
considerations, but also presents as a potential new program for the City in general and perhaps
the City downtown core area in particular. As stated by the Court, there is no comprehensive
statutory scheme to guide development of such a program. At the least, any such program
would require criteria and standards for evaluation of eligible applications in terms of equity
and efficiency.
For example, any approval would presumably be non-exclusive to avoid the requirement of
obtaining voter approval prior to granting the request. The City would be better served,
therefore, to be prepared for similar requests and determine on a proactive basis how to secure
equitable public compensation and fair use of public property and also coordinate the uses in a
comprehensive manner consistent with overall plans for downtown.
TAC/hb
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Bozeman Parking Commission Meeting
January 20, 2010, 7:30 a.m.
City Hall Commission Room
DRAFT MINUTES
Parking Commissioners in Attendance:
Pam Bryan
Chris Pope
Chris Naumann
Steve Schnee
Tammy Hauer
City Staff in Attendance:
Laurae Clark, Treasurer
Paul Burns, Parking Manager
Brian Heaston, Project Engineer
Allyson Bristor, Associate Planner
Applicants in Attendance:
Mike Delaney
Tony Renslow
Guests in Attendance:
Rob Pertzborn
Action Items:
________________________________________________________________________
Call to Order:
Pam Bryan called the meeting to order.
Public Comment – State name & address. Limit comments to 3 minutes.
No public comment.
Sidewalk restaurant proposal for NE corner of Main and Black
This proposal reduces parking by 4.79/5 spaces as determined by Planning staff.
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Brian Heaston and Allyson Bristor reported that city staff met last Friday to discuss this issue. It
was determined by the City Attorney that we need to have a public policy discussion with the
City Commission on February 1st regarding the loss of public parking spaces.
Billings was consulted in regards to a similar project. They based their framework on improving
the environment for downtown residents and employees.
A discussion ensued regarding what criteria to use to make this precedent setting decision to
allow the elimination of public parking at the NE corner of Main and Black.
Chris Pope made the motion:
The Bozeman Parking Commission supports the approval of the General Willson project
and the loss of up to five parking spaces; having found the project substantially augments
economic benefits for the downtown area, does not significantly diminish the parking
capacity or the parking authority budget, does not compromise public safety and abides by
the guidelines of the Downtown Improvement Plan.
The Parking Commission further supports the project due to its close proximity to the
parking garage facility and with the understanding that fair compensation will be obtained
for the loss of parking.
It will be recommended that the City Commission not approve further similar projects
until overall guidelines have been drafted and approved.
The motion was seconded by Steve Schnee and passed unanimously.
Chris N requested that in the future the parking commission be brought into these discussions
earlier in the process when it results in loss of parking.
Chris P suggests that Paul start working on drafting the policy language.
Pam suggested waiting till after the policy discussion with the City Commission to help
determine the correct direction.
New business/Public comment
None received.
Adjournment
The meeting adjourned at 8:59 a.m.
Respectfully Submitted
Laurae Clark, Treasurer
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