A. A permit may be granted by the city commission for the exclusive use of public right of way, including those used for pedestrian purposes, upon a showing of public benefit, and provided the use as constructed does not inconvenience or endanger the public:
1. Installation of and use for cable television and other utility services that are not allowed to use public right of way by law;
2. Installation and use of structures and fixtures appurtenant to a structure;
3. The commercial sale of goods or services on public right of way that excludes the public; and
4. Private use of closed right of way that excludes the public.
B. Exclusive right of way use permits that are granted by the city commission are subject to the following conditions:
1. Except as otherwise provided in this chapter, permits to use a public right of way for an exclusive private commercial purpose may be issued only to persons or entities owning or leasing commercial property located immediately adjacent to an improved sidewalk within a public right of way.
2. An exclusive right of way use permit may only be granted for uses that are permitted in the district immediately adjacent to the right of way.
3. Signs are not permitted unless they comply with title 11, chapter 23 of this code and the size, location, and type of sign are approved by the city commission in conjunction with an exclusive right of way permit.
4. The application for an exclusive right of way use permit is made to the city commission on forms furnished by the city. The application must include a scaled drawing of the precise location and dimensions of the right of way area proposed for the exclusive private commercial use, arrangement of tables and seating, and other personal property expected to be located and used on the right of way, including proposed fencing, screening, or other barriers that separate the private commercial use from the portion of the right of way that remains unencumbered for pedestrian use.
5. If the exclusive use of right of way occurs on a public sidewalk, the exclusive use must provide for an unencumbered remainder of sidewalk that is no less than seven feet (7') in width.
6. The applicant for an exclusive right of way use permit shall indemnify, defend, and hold the city and its employees and agents harmless against all claims, liability, loss, damage, or expense incurred by the city due to any injury to or death of any person or any damage to property caused by or resulting from the activities for which the permit is granted. As evidence of the applicant's ability to perform the conditions of the permit, the applicant shall furnish a policy or certificate for comprehensive general liability insurance with the city named as an additional insured. Such certificate of insurance shall be in the amount of one million dollars ($1,000,000.00) per claim or occurrence. A copy of the most current policy or certificate must be filed with the city clerk.
7. Prior to issuance of an exclusive right of way use permit, the city commission shall hold a public hearing on the application. The city commission may place conditions and limitations on the use of the right of way and may by resolution approve, deny, or conditionally approve the requested exclusive right of way permit.
8. The permit holder shall pay to the city administrative services department an annual fee for the right of way use permit of five percent (5%) of the fair market value of the property as determined by the most recent appraisal by the Montana department of revenue for ad valorem property taxation purposes, with credit for landscaped areas, alternate routes, and amortized costs of improvements for public improvements, with a minimum fee per year.
9. An exclusive right of way use permit issued under this section may be revoked by the city commission at its discretion, provided a notice of intention to revoke the permit is provided to the permit holder at least sixty (60) days prior to the intended date of revocation. Upon revocation of a permit, the permit holder is not entitled to reimbursement from the city for any improvements the permit holder installed on the right of way pursuant to the permit.
10. All other city code provisions apply, notwithstanding the issuance of an exclusive right of way permit.
11. All public improvements on the right of way that are not altered or removed pursuant to the permit must be maintained in the condition as they existed at the time that the permit was issued. The permit holder is responsible to the city for any damage occurring to such public improvements where such damage arises from or occurs in consequence of the presence or operation of the exclusive use of public right of way. The permit holder shall immediately report any damage to such public improvements to the public works director. The city may repair or replace such improvement in its discretion and may charge the cost of such repair or replacement to the permit holder, unless the permit holder can establish that the damage resulted from a cause not related to the permit holder's operation or use of the right of way.
12. The city manager may, after providing notice to the permit holder, suspend a right of way use permit if the city manager believes that the continued exclusive use of the public right of way poses a threat to the public's health, safety, or welfare. If an exclusive right of way permit is suspended, the city manager shall report the suspension to the city commission at its next regularly scheduled meeting for the city commission to determine whether the permit should be revoked. The city commission may continue the suspension pending notice to the permit holder of the revocation of the permit.
(Ord. 3317, 3-11-2024)