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(A) Definitions. When in this section, unless the context otherwise requires, the following terms shall have the following meanings:
(1) CERTIFICATE HOLDER. The holder of a certificate of compliance issued by the Zoning Administrator in accordance with the provisions of this section. A certificate holder is responsible for the installation and maintenance of street furnishings encompassed by any certificate of compliance issued pursuant to the provisions of this section and for compliance with all provisions contained herein.
(2) CERTIFICATE OF COMPLIANCE. The certificate of compliance issued by the Zoning Administrator to the certificate holder in accordance with the provisions of this section.
(3) NEWSRACK. Any type of self-service device for the vending or free distribution of newspapers, advertisements, or periodicals.
(4) OPERATOR. Any natural person or other legal entity including, but not limited to, corporations, partnerships, joint ventures and the like, who either own, operate or otherwise are in control of a newsrack.
(5) PROPERTY OWNER. A natural person or other legal entity including, but not limited to, corporations, partnerships, joint ventures and the like, who either own, lease or rent real property within the Heritage Overlay District.
(6) PUBLIC WAY. Any sidewalk or streetscape area dedicated to public use, public plaza open and dedicated to public use, public highway, public street or public alleyway.
(7) STREET FURNISHINGS. Street furniture including but not limited to benches, tables, chairs, table umbrellas, planters, waste containers, newsracks, mailboxes and similar personal property used to vend a product or for aesthetic display.
(8) ZONING ADMINISTRATOR. The Zoning Administrator of the City of Montgomery or such person as said Zoning Administrator may from time to time designate.
(B) Development standards.
(1) All street furnishings in the Heritage Overlay District which are maintained, erected, placed or situated by an owner or operator in a public way or which are placed upon private property, but are open to and visible from any public way shall comply with the standards of this section.
(2) The Zoning Administrator, subject to approval of the Landmarks Commission, shall adopt certain rules and regulations setting forth the palette of colors and acceptable materials for all street furnishings in the Heritage Overlay District for the enforcement of this Code.
(C) Any street furnishings placed within the Heritage District after the effective date of this Code must comply with the design criteria and placement restrictions as set forth within this section. Any street furnishings in place on the effective date of this section must be either removed or brought into compliance with the terms of this section within 60 days after written notice of nonconformity is delivered to the owner or operator by the Zoning Administrator.
(D) (1) Certificate of compliance.
(a) Within the Heritage Overlay District, no person shall affix, erect, place or maintain street furnishings in or on any part of the public way or upon private property in any area which fronts upon a public sidewalk, street or alleyway and is visible to such public sidewalk, street or alleyway without first obtaining a certificate of compliance from the Zoning Administrator in accordance with the provisions of this section. Street furnishings placed on private property which are placed within a solid material walled courtyard which are not visible to such public sidewalk, street or alleyway are exempt from the provisions of this section requiring a certificate of compliance.
(b) The certificate of compliance must be renewed annually by application to the Zoning Administrator.
(2) Application for certificate of compliance.
(a) An application form shall be prepared by the Zoning Administrator and shall require the following detail:
1. The name, address and telephone number of the applicant who is the owner/operator or other person who is the principal person responsible for the street furnishings;
2. The name, address and telephone number of a natural person (if different from the applicant) who the city may notify and/or contact at anytime concerning the applicant's street furnishings. This person would be responsible for receiving complaints and notices of violations when the certificate of compliance is issued and for providing information relating to the application during the application process;
3. A specific written description of the type, style and quantity of street furnishings proposed to be located and the proposed location for such street furnishings; and
4. If street furnishings are placed on or within a public way, a certificate of insurance naming the city as an additional insured in an amount not less than $1,000,000 sufficient to indemnify the city and hold it harmless from any and all claims or judgments for personal and bodily injury, including death or property damage, and from costs and expenses to which the city may be subjected or which it may suffer or incur by reason of the design, placement, installation, operation or maintenance of the applicant's street furnishings. Reasonable evidence of self-insurance coverage may be substituted by the applicant for the certificate of insurance. Insurance under this section shall run continuously while the street furnishings are in place within the city public ways, and any termination or lapse of such insurance shall be a violation of this section.
(3) Issuance of a certificate of compliance. Upon a finding by the Zoning Administrator that the applicant is in compliance with the provisions of this section, the Zoning Administrator shall issue a certificate of compliance for installation of street furnishings by the applicant. The Zoning Administrator shall issue a partial certificate of compliance upon a finding that some of the proposed street furnishings locations are in compliance with the provisions of this section. Issuance of a certificate of compliance or partial certificate of compliance shall designate the applicant to be the certificate holder. The Zoning Administrator shall issue a certificate of compliance within ten business days of the Zoning Administrator's receipt of a completed application. Proposed locations within the public way shall be approved on a first come/first serve basis by the Zoning Administrator.
(4) Denial of certificate of compliance. If an application for a street furnishings location is denied, or if the type and style of the street furnishings is denied, the Zoning Administrator shall
notify the applicant in writing within ten business days of the receipt of the completed application. The Zoning Administrator shall state the specific reason for denial. An applicant who has been denied a certificate of compliance pursuant to this section may appeal such denial within 30 days of the date of the written denial by filing a copy of an appeal with the Zoning Administrator. Such appeal shall be heard by the City Manager, or his/her designee, within ten business days of the filing of the appeal. A final decision on the appeal shall be sent to the applicant within five days of the hearing.
(a) The Zoning Administrator reserves the right to order, by written notice to the certificate holder, that non-complying street furnishings be removed from an approved location either temporarily or permanently.
(b) If the certificate holder fails to remove street furnishings from a location within three business days after receipt of a notice by the Zoning Administrator, the Zoning Administrator, or his/her designee, may summarily remove such street furnishings to storage at a place designed by the city. Such street furnishings may then be returned to the certificate holder upon a certificate holder paying the cost of storage and the reasonable cost to remove such street furnishings to storage, which reasonable removal cost shall not exceed $100. If a certificate holder fails to pay such storage and removal fees or fails to claim such street furnishings from storage within 60 days after receipt of a notice from the Zoning Administrator that such property has been removed to storage, then the city may dispose of such street furnishings as the city deems appropriate. The city shall then be entitled to retain any monies received from the sale of such street furnishings as abandoned property, and no portion of such proceeds from the sale need be accounted to or paid to the certificate holder. If the Zoning Administrator determines that there is an unreasonable and imminent risk of danger to person or property by non-complying street furnishings remaining at a location or in a condition of disrepair at an approved location, the Zoning Administrator may summarily remove such furnishings without advanced written notice to the certificate holder.
(E) Standards. All street furnishings shall be maintained in a neat and clean condition and in good repair at all time. Specifically, but without limiting the generality of the foregoing, street furnishings shall be serviced and maintained so that:
(1) It is reasonably free of dirt and grease;
(2) It is reasonably free of chipped, faded, pealing and/or cracked paint in any visible painted areas;
(3) It is reasonably free of rust and corrosion in visible unpainted metal areas;
(4) Any clear, plastic or glass parts of any display area of a newsrack are unbroken and reasonably free of cracks, dents, blemishes and discoloration;
(5) The structural parts of any street furnishings are not broken or unduly misshapen;
(6) There shall be no advertisement attached to, posted upon, or incorporated within any street furnishings except:
(a) Umbrellas affixed to tables within the street furnishings authorized in the District may display the name of the business or logo of the business on site where the street furnishings are placed. Provided, however, such name may not be printed in letters larger than four inches in height and they must be displayed only on the drop flaps of the umbrella, may not be displayed more than four times.
(b) Newsracks may have a clear display area not to exceed one square foot. Lettering listing the name of the publication is limited to one inch in height and must be displayed only on the front of the newsrack.
(7) All newsracks shall be equipped with a coin return mechanism to permit a person using the machine to secure an immediate refund in the event he or she is unable to receive the publication paid for. The coin return mechanism shall be maintained in good working order. Newsracks dispensing free publications are exempt from this division;
(8) Each newsrack shall have affixed to it, in a readily visible place so as to be seen by anyone using the newsrack, a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction or to secure a refund in the event of a malfunction of the coin return mechanism, or to give the notices provided within this section.
(F) If appropriate, the City Manager is authorized to place complying street furnishings in and upon city owned property, or within the city right-of-way, of any public street, alleyway or sidewalk. Such public street furnishings shall include, but not be limited to, flowerpots and planters, waste containers, tables, chairs, umbrellas, and newsracks. If the City Manager elects to place or construct publicly owned newsracks within the District, the City Manger, at a reasonable fee, may allow such newsracks to be used in lieu of the private placement of newsracks in compliance with these regulations.
(Ord. 10-2007, passed 8-1-07)