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(A) No person shall encumber any street, sidewalk, or right-of-way, and no owner, occupant, or person having the care of any building or lot of land, bordering on any street, sidewalk, or right-of-way shall permit it to be encumbered with barrels, boxes, cans, articles, or substances of any kind, so as to interfere with the free and unobstructed use thereof, except as permitted under the provisions of the following paragraphs.
(B) Permit required. Any encroachment on or use of the public sidewalk requires a written permit from the City Administrator or his or her designee.
(1) Application. Application for the permit required by the provisions of this section shall be made on a form provided by the city.
(a) The application shall be submitted to the City Administrator. The City Administrator or his or her designee shall examine the application and shall approve the same unless they find the applicant fails to meet the applicable requirements contained in this chapter or if there is a basis for denying the application because allowing the encroachment or use would endanger the health, safety or welfare of the public or would cause hardship or damage to nearby property owners.
(b) The city may deny a permit for failure to meet the requirements and conditions of this section or if the city determines that the denial is necessary to protect the health, safety, and welfare or when necessary to protect the right-of-way and its current use. If the application is denied, the applicant may, within 30 days of notice of denial, appeal the decision to the City Council.
(2) Application review. Factors considered when reviewing an application or revoking a permit include, but are not limited to:
(a) The permit holder shall provide proper containers for the collection of waste and trash and shall be responsible for keeping the outdoor area clean of garbage, trash, or litter associated with the operation of the permitted business and shall be responsible for cleanup and or repair of the sidewalk caused by the use of the area;
(b) The equipment or use encroachments located on a sidewalk shall be located in an area no more than thirty-six inches (36") in width from the property line of the business or permit holder, provided that a minimum of forty-eight inches (48") of unobstructed sidewalk clearance for pedestrian traffic is provided, or the minimum required by the Minnesota Building Code or the Americans with Disabilities Act, whichever requirement is more restrictive. The business use or encroachment shall be along and adjacent to the property line of the business or permit holder;
(c) Outdoor dining or merchandise areas shall be permitted only adjacent to the building or structure or the property line of the property in which the business is located and shall not be permitted next to the curb of the street. In no event shall outdoor dining or merchandise areas be permitted in roadways unless approved by the City Council;
(d) All equipment and use encroachments, merchandise, devices, furniture, fencing or other accessories used shall not block regulatory signs, crosswalks, intersections, fire hydrants or handicap loading zones, and shall be sufficiently lit during times of low light in order to provide for safe pedestrian passage alongside the areas and shall not impede, endanger or interfere with pedestrian or vehicular traffic;
(e) All structures, equipment, use encroachments, merchandise, furniture, fencing or other accessories shall be stable and not easily tipped and shall not include sharp edges, protrusions, or other features which may be hazardous to the public;
(f) All structures, equipment, use encroachments, merchandise, furniture, fencing or other accessories shall be removed from the public right-of-way and moved into the building wherein the business is located during inclement weather;
(g) The maintenance, security and upkeep of all structures, equipment, use encroachments, merchandise, furniture, fencing or other accessories shall be the sole responsibility of the permit holder, and shall be clean and well maintained;
(h) The permit holder shall comply with all city regulations and other applicable regulatory agency requirements and regulations including, but not limited to, the requirements for food service and noise control. The permit holder shall display in a conspicuous location all required permits and licenses. The permit holder shall continuously maintain the required approvals, permits and licenses;
(i) Any applicant wishing to locate in the right-of-way adjacent to a business that is not the sponsoring business must first receive written permission of all of the owners of the businesses adjacent to the permit area and within 65 feet, whichever is greater;
(j) Any permission granted hereunder and all rights of the permitted hereunder shall cease at any time that the permit is revoked and all encroachments shall be removed immediately. The granting of a permit shall in no way be considered a relinquishment by the city of that portion of the public right-of-way, or be of any force or effect beyond the time herein provided. Additional conditions may be imposed on permits to protect the health, safety or welfare of the public or to protect nearby property owners from hardship or damage or to protect other public interests as determined by the City Administrator.
(3) Application fee. Each application for a permit required by the provisions of this section shall be accompanied by an application fee in an amount as established by the city's fee schedule, which fee shall be retained by the city whether or not a permit is issued. Permits need to be renewed at least annually.
(4) Term. Unless otherwise provided in the permit or by other provisions of this section, the term of the permit shall begin and end with the calendar year. For the issuance of a permit for a period less than a year, the effective date of such permit shall commence with the date of issuance and expire December 31, unless otherwise provided.
(5) Insurance. The permittee shall at all times during the permit period, maintain public liability insurance, naming the city as an additional insured party, in the amounts of $1,000,000.00 per occurrence, with respect to the occupation and use of such right-of-way by the permittee, which insurance shall be evidenced by a policy providing, in part, that such insurance shall not be canceled or terminated by any party, except upon 30 days' notice in writing to the city of the intent to cancel the policy. If the permittee allows the insurance policy to lapse without furnishing a new policy in lieu thereof, the permit shall be revoked and the encroachment removed.
(6) Responsibility. The applicant/permittee shall and agrees to indemnify and save harmless the city from any and all claims and demands which may arise as a result of the installation, placement, building, erection, maintenance, occupation, display or use of any structures, equipment, use encroachments, merchandise, furniture, fencing or other accessories or encroachments upon the public right-of-way.
(7) Permit revocation.
(a) The city reserves its right, as provided herein, to revoke any right-of-way permit, without a fee refund if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by the permitted shall include, but shall not be limited, to the following:
1. The violation of any material provision of the permit;
2. An evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens;
3. Any material misrepresentation of fact in the application for the permit;
(b) Written notice of breach. If the city determines that the permittee has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation or any condition of the permit the city shall make a written demand upon the permittee to remedy that violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated above, will allow the city, at its discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach.
(c) An applicant that has had a permit revoked, may have the denial or revocation reviewed, upon written request, by the City Council. The City Council shall act on a timely written request at its next regularly scheduled meeting. A decision by the City Council affirming the denial or revocation will be in writing and supported by written findings establishing the reasonableness of the decision.
(C) Commercial restaurant exemptions in the C-1 zoning district. Any restaurant that is licensed may, with a permit under this section, expand their operation onto a part of the public sidewalk directly in front of the property under the control of the licensed premises (hereafter referred to as sidewalk café). All of the requirements and restrictions of this section shall apply; provided, however, that city staff may without adverse hearing procedures impose additional reasonable restrictions or withdraw the operation of the sidewalk café where necessary in their judgment to protect the public health, safety or welfare, or to prevent a nuisance from developing or continuing. Withdrawal of approval may be for either a specified time or an indefinite period, during which time no such use of the public sidewalk for a sidewalk café shall continue. Such additional restrictions or withdrawal of approval shall be effective upon delivery of written notice thereof to the person, or an employee of the person at the business premises involved. The following additional conditions apply to a sidewalk café:
(1) Tables, chairs, or any other furnishings, shall be allowed overnight in the area used for the sidewalk café when the business is closed. However, umbrellas must be removed upon closing;
(2) The use of a portion of the public sidewalk as a sidewalk café shall not be an exclusive use nor shall it be construed as authorizing any permanent installation to be placed in the public right-of-way. All public improvements, including, but not limited to, trees, light poles, traffic signals, pull boxes or manholes, or any public-initiated sidewalk use and/or maintenance procedures, shall take precedence over said use of the public sidewalk at all times.
(3) No sidewalk café shall operate between October 15 and April 30. At which time it shall be the owner's responsibility to remove all tables, chairs, and other obstacles from the sidewalk and public right-of-way.
(4) No alcoholic beverages shall be allowed on any public sidewalk, street, or right-of-way, with the exception of an approved temporary on-sale liquor license permit.
(5) The serving of outdoor food and beverages shall be limited to the hours of 10:00 a.m. to 10:00 p.m. Sunday through Thursday, and from 9:00 a.m. to 11:00 p.m. on Fridays and Saturdays.
(D) Sidewalk sales exemptions in the C-1 zoning district. Any person, partnership, firm or corporation which operates a commercial business may, with a permit under this section, use a part of the public sidewalk which immediately adjoins the premises of such commercial business for the display and sale of its merchandise. All of the requirements and restrictions of this section shall apply; provided, however, that city staff may without adverse hearing procedures impose additional reasonable restrictions or withdraw the operation of the public sidewalk for the display and sale of merchandise when necessary in their judgment to protect the public health, safety or welfare, or to prevent a nuisance from developing or continuing. Withdrawal of approval may be for either a specified time or an indefinite period, during which time no such use of the public sidewalk for the display of merchandise shall continue. Such additional restrictions or withdrawal of approval shall be effective upon delivery of written notice thereof to the person, or an employee of the person at the business premises involved. The following additional conditions apply to the use of the public sidewalk for the display and sale of merchandise:
(1) The use of a portion of the public sidewalk for the display and sale of merchandise shall not be an exclusive use nor shall it be construed as authorizing any permanent installation to be placed in the public right-of-way. All public improvements, including, but not limited to, trees, light poles, traffic signals, pull boxes or manholes, or any public-initiated sidewalk use and/or maintenance procedures, shall take precedence over said use of the public sidewalk at all times.
(2) No display racks, tables, or any other equipment of any kind, except plant tubs, shall be placed or permitted to remain on the public sidewalk during any period when merchandise is not displayed and available for purchase. While such merchandise is displayed and available for purchase, all racks, tables and other equipment shall be maintained in a clean and sanitary condition.
(3) No display or sale of merchandise on the public sidewalk shall occur between October 15 and April 30. At which time it shall be the owner's responsibility to remove all tables, merchandise, displays and other obstacles from the sidewalk and public right-of-way.
(4) No display of merchandise shall be permitted on a public sidewalk between the hours of 9:00 p.m. and 9:00 a.m.
(5) No display or sale of merchandise shall be permitted on a public sidewalk or right-of-way that is unlawful to sell to a minor, or which is otherwise prohibited from being sold outdoors.
(E) City employee and contractor exemptions. Except for the actions of the city employees and contractors carrying out their duties, no person shall:
(1) Obstruct any street or sidewalk by depositing snow or ice thereon;
(2) Dig any holes in any street, sidewalk or right-of-way;
(3) Remove any earth, gravel, or rock from any street, sidewalk or right-of-way;
(4) Obstruct any ditch draining any street or drain any noisome materials into any ditch;
(5) Deface, mar, damage, or tamper with any structure, work, material, equipment, tools, signs, markers, signals, paving, guardrails, drains or any other highway appurtenance on or along any street, sidewalk or right-of-way.
(6) Remove, injure, displace, or destroy right-of-way markers, or reference or witness monuments, or markers placed to preserve section or quarter-section corners;
(7) Drive over, though, or around any barricade, fence, or obstruction erected for the purpose of preventing traffic from passing over a portion of a street or sidewalk closed to public travel or to remove, deface, or damage any such barricade, fence or obstruction.
(Ord. 4-2019, passed 8-15-2019) Penalty, see § 10.99