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| | ARTICLE 4.1000 DEFINITIONS ARTICLE 4.1001 USE OF PUBLIC WAY ARTICLE 4.1002 PERMIT NOT REQUIRED ARTICLE 4.1003 PERMITS FOR PLACEMENT IN PUBLIC WAY
ORDINANCE NO. 10-002 AN ORDINANCE REGULATING THE USE OF CERTAIN PUBLIC SIDEWALKS AND OTHER PUBLIC AREAS WITHIN THE CITY LIMITS OF THE CITY; REGULATING VENDING, PLACEMENT OF MERCHANDISE, LANDSCAPING, DECORATIVE ITEMS AND OTHER ENCROACHMENTS; PROVIDING DEFINITIONS, EXCEPTIONS, ENFORCEMENT AND EFFECTIVE DATE. WHEREAS, the City Council of the City of Fredericksburg finds and declares that: a. The primary purpose of the public streets, sidewalks, and other public ways is for use by vehicular and pedestrian traffic; and b. The placing of merchandise on such public ways within the District as defined below has created a hazard to pedestrians, and has created conflict between competing vendors within such ways, and has created congestion along sidewalks, and a hazard for vehicles and pedestrians as pedestrians are forced to walk into driving and parking areas to avoid congested sidewalks; and c. Reasonable regulation of vending and placement of merchandise, landscaping and other encroachments on public ways and on public property is necessary to protect the public health, safety and welfare of those residing in or visiting the City of Fredericksburg; and d. The regulations contained in this ordinance are not intended to prohibit or hamper speech, which is protected by the First Amendment, but are intended merely to regulate specific activities, which are commercial in nature. e. The reasonable placement of decorative items and landscaping within the right-of-way should be encouraged as it will beautify the area and create a pleasant environment, and retain the historic and welcoming visage of the City provided that safety will be maintained. f. Accomplishing the above goals and lessening the congestion on the public streets while maintaining safety would create competing regulations and it is the goal of this ordinance to balance such competing uses in a manner that reflects the character of the City and the desires of the citizens. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FREDERICKSBURG THAT THE FOLLOWING PROVISIONS BE AND ARE HEREBY ADOPTED AND THAT THE CODE OF ORDINANCES OF THE CITY FREDERICKSBURG BE AND IS HEREBY AMENDED TO ADD THE FOLLOWING : ARTICLE 4.1000 DEFINITIONS "Building Official" shall mean the Building Official of the City of Fredericksburg or his or her designee or designees which may also be the Code Enforcement Officer for the City. "Decorative Items" are non permanent-type items which are not otherwise specifically prohibited or provided for under other definitions of this ordinance or any other Ordinance of the City of Fredericksburg and do not advertise or otherwise attract attention to any specific business, and which are items of general and seasonal decoration and for beautification of the area - " District" shall mean the area within the City of Fredericksburg bounded by Elk Street on the East through Milam Street on the West, and Austin Street on the North through San Antonio Street on the South inclusive of the public ways on both sides of said streets
- "Merchandise" shall mean any tangible or intangible property offered for display or sale and shall include but not be limited to food, beverages, goods, wares, tickets, publications, services or examples of goods or wares, or likenesses of items offered for sale within the adjoining businesses.
- "Permanent improvements" shall mean any structure, such as posts, canopies, porches, steps, in-ground planting, such as large shrubs or trees, landscape materials or any other fixture or permanent addition to the right-of-way area but shall not include flowers, small shrubs, or other small in-ground plantings which shall be allowed to be placed in any area outside the Unobstructed Pedestrian Area.
- "Potted Plants and Benches" Potted plants and benches shall be placed only as hereinafter set out; and the same shall be placed for public convenience and decoration and shall not contain advertising or represent an example of merchandise for sale within the District. These items may be anchored so as to deter theft or vandalism, but must remain removable with minimal damage, which is easily repairable, to the sidewalk or right of way. Pots must be planted, and all plants (alive or artificial) must be non-hazardous, trimmed and maintained.
- "Public way" shall mean all areas held or controlled by the City or other public entity legally open to public use such as public streets, sidewalks, and all areas in public right-of-way, roadways, highways, parkways, alleys, parks as well as the interior and areas surrounding public buildings.
- " Special event" shall mean any occasion including but not limited to fairs, shows, exhibitions, city wide celebrations, festivals, and the like within specifically defined area of the city for a time period not to exceed the period of the event.
- "Unobstructed Pedestrian Area" shall mean the area between the street right of way, property line and six feet (6') toward the roadway (or curb), or the distance to the canopy post, if existing, and less than six feet (6'), or the actual width of the paved sidewalk, whichever is less, and the projection of such area to the height of the canopy or for twenty feet (20' ) whichever is less. Signs permitted under the Sign Ordinance of the City of Fredericksburg are excepted from these height provisions. Alternatively, Unobstructed Pedestrian Area may be measured from the curb six feet (6') toward the building provided such area is completely unobstructed, even with posts, and includes a sidewalk area, with the same heights applicable as stated above The property Owner shall be the person or entity which determines the method of calculating the Unobstructed Pedestrian Area for the area adjacent to his/her/its property, and the same must be consistent for the entire length of the property in order to minimize "zig-zagging of the Unobstructed Pedestrian Area. Unobstructed Pedestrian Area shall also include areas between the parking spaces (or curb) and the sidewalk area for one foot (1') on either side of the painted stripe indicating the boundaries of the parking spaces as projected toward the sidewalk. The Building Official may permit exceptions (when applied for as under Section 4.1003 below) to the one foot requirement if in his or her sole discretion proper access is provided without meeting this technical requirement. Each reference to six feet (6') of Unobstructed Pedestrian Area shall apply only to the Public Way along both sides of Main Street. The same shall be five feet (5') along all streets other than Main Street within the District. Unobstructed Pedestrian Area shall include, in addition to the areas defined above, all areas included in the "Islands" which are the brick paved projections of sidewalk areas along Main Street installed by the state of Texas.
- "Vendor" shall mean any individual, including an employee or agent of a group of individuals, partnership or corporation who sells or offers to sell any service, food, beverage, good, or merchandise, or who solicits donations on any public way.
- It shall be unlawful for any person to place or deposit any merchandise within the Public Way in the District
- It shall be unlawful for any vendor to sell, display, or offer for sale any merchandise or services within the Public Way within the District.
- It shall be unlawful for any person to solicit donations within the Public Way within the District.
- It shall be unlawful for any person to perform, play music or entertain from any location within the Public Way in the District.
- It shall be unlawful for any person to place any property, improvements, or any other thing in the Public Way without a permit obtained under section 4.1003 below except for merchandise if outside the District, and plants benches, tables and chairs and decorative items as allowed hereby.
- It shall be unlawful for any person to place any property within the Public Way or to sell, display, or offer for sale any merchandise within the Public Way outside the District within the city limits of the City of Fredericksburg without full compliance with the State of Texas Department of Highways and Public Transportation (or its successor) rules and regulations for use of its right-of-ways, as may be amended from time to time, which are incorporated herein as though fully set out.
- In all areas of this City, use of the Public Way as it relates to the placement of merchandise, vending, displays and the like, shall be governed by all rules, regulations and requirements of the Zoning District in which such property is situated, as set out in the City of Fredericksburg Zoning Ordinance.
- It is a defense to prosecution under this ordinance to the application of the foregoing prohibitions if a person:
- is a participant in a Special Event, and is vending on the premises designated for the Special Event or
- is an individual personally selling or giving newspapers, magazines or the like, or
- has placed Newspaper vending machines (i.e. coin operated periodical machines) provided that the same are not placed in the Unobstructed Pedestrian area
- is vending in connection with the transaction of official government business, or
- is the grantee of a contract with the City to operate a concession on designated areas of public property.
ARTICLE 4.1002 PERMIT NOT REQUIRED - The placement of Potted plants, Benches and other decorative items in the Public way may occur without the necessity of obtaining a permit under article 4.1003 below, provided that the same may be placed only outside the Unobstructed Pedestrian Area provided that the same, in total, shall not obstruct the sidewalk, create a hazard, or impede access from any on-street parking space to the Unobstructed pedestrian area, and provided that decorative items shall be placed only directly in front of the premises of the person or entity placing the same.
- Potted plants and Benches and other decorative items or improvements, which are placed within the Public Way as of the effective date of this ordinance, are not "grandfathered."
- Potted plants, Benches and decorative items must be maintained in good condition.
- Existing Potted plants, Benches, and decorative items or any of them which may be placed after the effective date of his ordinance may be removed by the Building Official of the City of Fredericksburg, the Code Enforcement Officer of the City of Fredericksburg or his or their designee, if in the discretion of such Official, the placement creates a hazard to pedestrians or in the event the same are not maintained. Any person placing the same shall have no action against the City or its employees or agents arising out of removal of the same, and shall not be reimbursed for the cost of the item(s) removed.
- The placement of United States of America flags and State of Texas flags by the Veterans of Foreign Wars in the locations currently used shall not require a permit; spirit flags such as high school flags may be placed without a permit in the same locations on homecoming or other special occasions as permitted by the Building Official. Other flags shall be allowed as provided by the Sign Ordinance of the City of Fredericksburg provided they do not intrude into the Unobstructed Pedestrian Area, other than at a height more than ten feet (10') from the ground.
- Tables and chairs on sidewalks shall be permitted outside of the Unobstructed Pedestrian Area, EXCEPT ALONG EITHER SIDE OF MAIN STREET, provided
- A permit is obtained from the Building Official for the same, which may be denied if in the Building Official's determination the following criteria are not met.
- A diagram of the size and placement of the table and chairs is submitted, and
- That placement be only immediately in front of the business placing the tables and chairs, and
- That the tables and chairs be of sturdy, non rusty and non splintering construction and appropriate in color and style to the area in which they are placed, and
- That the tables and chairs not be for exclusive use of customers of the business of the person(s) placing them, and
- That no food service be provided to the tables and chairs (take out only).
ARTICLE 4.1003 PERMITS FOR PLACEMENT IN PUBLIC WAY - The Building Official for the City of Fredericksburg, or his designee may issue a permit allowing the placement of property or improvements in the Public Way in the District, provided that no permit shall be issued for merchandise or for furniture other than benches and tables and chairs as permitted in Article 4.1002 above. It is the intent of this article to permit the placement of permanent improvements which may be needed in connection with the use of the adjacent property and/ or which are desirable to encourage restoration retention, or reestablishment of historic structures or features of buildings. A permit under this section shall be required for items not otherwise requiring a permit under the Building Codes of the City of Fredericksburg.
- An application for a permit shall be filed with the building permit department of the City of Fredericksburg and shall contain all information relevant to determine the exact nature, size, look and placement of the improvement for which a permit is sought as well as the name, address and phone number of the applicant and owners of adjacent property (the Building Official may require proof of ownership). The Building Official shall provide copies of the application to the owners of the adjacent property at least five (5) days prior to approval
- An application shall not be considered complete or submitted unless accompanied by an application fee of twenty-five dollars ($25.00).
- Not later than 30 days after a completed application is filed, the applicant shall be notified in writing of the decision of the issuance or denial of the permit. The Building Official may place such reasonable conditions on such permit as will promote public safety. Improvements, except as described below, or objects in the Public Way as of the effective date of this ordinance are not "grandfathered," and must be removed by order of the Building Official if he or she determines that the same would not have been approved under the terms of this ordinance, or an official of the State of Texas, as applicable, if in State right of way. Canopies and posts to support the same which are existing as of August 1, 1999, shall be permitted to remain without the necessity of obtaining a permit. Any alteration (i.e. other than ordinary maintenance) of the same shall require a permit as set out above.
- In the event of changed circumstances, such as a change in use of adjoining property, changes in streets, sidewalks or utilities, overgrowth of landscape material or other change that would render an item or improvement unsafe or blocking of access or the like, any items or improvements within the Public Way may be required to be removed by the Building Official of the City of Fredericksburg or his or her designee, and any permit concerning the same may be revoked. In the event of revocation, the permitee, or the adjoining property owner (if the placement existed at the effective date hereof) shall remove the item or improvement designated within five (5) days of the date of the notice at his or her cost, If the same is not done, the City may remove such item and charge its cost of removal of same to the property owner, owner of the item, or the person who placed such item. Reimbursement to the City shall be made within 30 days of demand therefor. The City shall not be responsible to any party for the value of the item removed.
- Within six (6) months following the effective date hereof, the Building Official, or his or her designee, shall survey the Public Way in the I)istrict and shall automatically permit, with no permit cost, all improvements existing as of the effective date hereof which in his or her opinion are acceptable under the terms hereof.
- In the event the Building Official denies the issuance of a permit to place property or improvements as described in this Section 4.1003, or revokes a permit, an applicant may appeal such denial to the Board of Adjustment of the City of Fredericksburg. Such appeal must be written and delivered to the City Secretary of the City of Fredericksburg within ten (10) days of the date of notification of the denial. The date of notification of the denial shall be deemed to be the date the applicant is personally notified of the decision of the Building Official or the date upon which the Building Official mails (certified mail) a written copy of his/her decision to the address noted upon the application. The grounds for appeal, and the standard of review to be applied by the Board of Adjustment is that the action of the Building Official was arbitrary and capricious and not based upon existing or anticipated conditions for the area for which an improvement is requested.
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Penalties provided for in the Code of Ordinances of the City of Fredericksburg shall apply to violations hereof. All ordinances and parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. If any provision of this ordinance or the application hereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without defeating the purpose or objective of the provisions, and to this end, the provisions of this ordinance are declared to be severable. This ordinance shall be effective from and after the date of its passage and publication in accordance with the law. PASSED AND APPROVED this the 7th day of February, 2000. |
