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HomeMy WebLinkAboutOrdinance No. 2020-016 An Ordinance of the City of Arlington, Washington Adding Chapter 12.50 to the Arlington Municipal Code Relating to Temporary Right of Way Use Permits Where No Construction Activity Will Occur ORDINANCE NO. 2020-016 AN ORDINANCE OF THE CITY OF ARLINGTON, WASHINGTON ADDING CHAPTER 12.50 TO THE ARLINGTON MUNICIPAL CODE RELATING TO TEMPORARY RIGHT OF WAY USE PERMITS WHERE NO CONSTRUCTION ACTIVITY WILL OCCUR WHEREAS, the City of Arlington, Washington has the authority to adopt ordinances for the general welfare of its citizens; and WHEREAS, it may be desirable to permit and authorize the use of portions of the city's rights of way where the public will not be unduly inconvenienced and where no construction activity will occur in the rights of way; and WHEREAS, the City Council deems this chapter to be an appropriate addition to the Arlington Municipal Code; NOW, THEREFORE, the City Council of the City of Arlington, Washington does hereby ordain as follows: Section 1. A new Arlington Municipal Code Chapter 12.50 is hereby adopted,to read as follows: Chapter 12.50 TEMPORARY RIGHT-OF-WAY USE PERMITS-NON CONSTRUCTION Sections: 12.50.010 Purpose and intent—Liability. 12.50.020 Exemptions. 12.50.030 Temporary use of city rights-of-way—Permit. 12.50.040 Special, private use of city property—Permit. 12.50.050 Annual lease charges and rates. 12.50.060 Leasehold tax. 12.50.070 Permit Application. 12.50.080 Permit exclusively for outdoor dining/seating. 12.50.090 Restoration of property. 12.50.100 Suspension, revocation and termination. 12.50.110 Right of entry. 12.50.120 Insurance and Hold Harmless Requirements. 12.50.130 Appeal. 12.50.140 Nonexclusive provisions. ORDINANCE NO. 2020-016 1 12.50.010 Purpose and intent—Liability. a. The purpose of this chapter is to regulate and authorize the use of the City's rights of way where such use will not interfere with public convenience and where there is no construction of any permanent or temporary structures within the rights of way. b. It is expressly the purpose of this chapter to provide for and promote the health, safety and welfare of the general public, and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter. c. It is the specific intent of this chapter that no provision nor any term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers or employees, for which the implementation or enforcement of this chapter shall be discretionary and not mandatory. d. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the city, or its officers, employees or agents, for any injury or damage resulting from the failure of a permittee to comply with the provisions of this chapter, or by reason or in consequence of any inspection, notice, order, certificate, permission or approval authorized or issued or done in connection with the implementation or enforcement pursuant to this chapter, or by reason of any action or inaction on the part of the city related in any manner to the implementation or the enforcement of this chapter by its officers, employees or agents. 12.50.020 Exemptions. a. The provisions of this chapter shall not apply to the use of a city right-of-way for the purpose of activities that last no longer than three (3) days in duration, such as privately sponsored special events, parades, and city sponsored events. For such uses of the rights of way, the provisions of Arlington Municipal Code chapter 5.44 shall apply. b. The provisions of this chapter shall not apply to use of the city's rights of way for utility, construction or other purposes where construction activity occurs. For such uses of the rights of way, the provisions of Arlington Municipal Code chapter 12.40 shall apply. 12.50.030 Temporary use of city rights-of-way—Permit. Special temporary use of city rights-of-way, including streets, alleys and sidewalks within the city, where such use is nonexclusive and will not interfere with public convenience and where there is no construction of any permanent or temporary structures within the rights of way, may be granted by the Director of the Community/Economic(CED) Development Department or his or her designee, subject to the terms of this chapter. 12.50.040 Special, private use of city sidewalks—Permit. No special or private use shall be made of any city right-of-way including, but not limited to, streets, alleys and sidewalks, by any person, entity or corporation without first having secured from the CED department the requisite permit and having paid all applicable permit fees and applicable leasing rates. ORDINANCE NO. 2020-016 2 12.50.050 Annual lease charges. For all activities requiring a permit under this chapter, the city shall charge an annual leasing charge. All lease charges or rates for the temporary use of city rights-of-way, including streets, alleys and sidewalks, shall be established by resolution of the City Council. 12.50.060 Leasehold excise tax. In addition to any annual permit fees set forth in the City's fee resolution, applicants shall be responsible for paying all leasehold excise tax as may be required by RCW Chapter 82.29A. Applicants shall pay the same to the city, which shall remit to the State Department of Revenue the aforesaid leasehold excise tax in accordance with RCW Chapter 82.29A. 12.50.070 Permit Application. a. To obtain a right-of-way use permit under the terms of this chapter, the applicant shall file an application with the Community/Economic Development Department. b. Every application shall include a dimensioned site plan identifying the location of the proposed right-of-way use, a description of the use, the planned duration of the use, applicant contact information, list of materials to be utilized, and all other information which may be required as specified in procedures adopted hereunder, and shall be accompanied by payment of all required fees. c. The director or his or her designee shall examine each application submitted for review and approval to determine if it complies with the applicable provisions of this code and procedures adopted hereunder. Permit applications may include joint review by other departments depending on the type and location of the proposed use. The director or his or her designee may inspect the right-of-way proposed for use to determine any facts which may aid in determining whether a permit should be granted. d. If the director or designee finds that the application conforms to the requirements of this code and procedures adopted hereunder,that the proposed use of such right-of- way will not unduly interfere with the rights and safety of the public, and if the application has not been disapproved by a department with authority, he/she may approve the permit, and may impose such conditions thereon as are reasonably necessary to protect the public health, welfare and safety and to mitigate any impacts resulting from the use. e. All applications for permits will be submitted, at a minimum, fifteen calendar days or more before the planned need for the permit. If unforeseen conditions require expedited processing,the city will attempt to facilitate through expedited review. Any additional costs to the city for this expedited review may be charged to the applicant pursuant to the City's fee resolution. f. Upon submittal of a completed application, the city shall collect from the applicant an application fee as listed in the City's fee resolution. ORDINANCE NO. 2020-016 3 12.50.080 Permits exclusively for outdoor dining/seating. Permit applications that are exclusively for use as outdoor dining or seating, such as cafe's and bistros, shall comply with all provisions identified in Arlington Municipal Code Chapter 12.24. All such applications shall also require written approval from the Washington State Liquor and Cannabis Board (WSLCB) and the Snohomish Health District (SHD). All proposed uses shall also comply with the applicable provisions of the Americans with Disabilities Act (ADA), 42 United States Code (U.S.C.) § 12101 et seq. 12.50.090 Restoration of property. In the event a permit for the temporary use of a city right-of-way expires or is terminated for any reason, the permittee shall remove all property not owned by the city from the above-described property and shall restore the property to the satisfaction of the city. Such removal and restoration shall be completed immediately upon termination of the permit. In the event the applicant shall fail to remove property and restore the location to the satisfaction of the city as is required, at the option of the city, the city shall be entitled to remove the property in which case the property removed shall become the property of the city. Any expense incurred by the city in removing the property and restoring the location shall be paid by the applicant immediately upon billing of the costs thereof by the city. This right is in addition to any other right the city may have at law or in equity. 12.50.100 Suspension, revocation and termination. a. The CED director or their designee is authorized to suspend or revoke any permit issued herein whenever the permit is issued in error or on the basis of incorrect information supplied, or in violation of any ordinance or regulation of the city, or when the permittee fails to pay the permit fee. b. Any permit issued hereunder is terminable at the will of the city upon thirty days' notice to the permittee. In addition, in the event the city does not receive the permit fee or lease charges within the time period as requested by the city, then the permission for use of the city's property shall be automatically withdrawn and all rights thereunder shall be deemed immediately withdrawn. c. Should the city terminate the permit prior to the expiration of a time period for which the permit has been issued, the permittee shall be entitled to a refund of the lease charges and applicable leasehold excise tax in a pro rata amount covering the unused period for which the charges were paid except when the permit has been issued on the basis of incorrect information supplied by the applicant, in which case the same shall be forfeited. Notwithstanding the foregoing, the city is authorized to retain any refund and apply it towards the cost of any restoration incurred by the City pursuant to Section 12.50.090. ORDINANCE NO. 2020-016 4 12.50.110 Right of entry. The CED director or their designee is authorized to enter at all reasonable times any property for which a permit authorized herein has been issued for purposes of making inspections and/or restoring property as defined in Section 12.50.090. 12.50.120 Insurance and Hold Harmless Requirements. As an express condition of the issuance of any permit under this Chapter,the Permittee shall be required to defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with activities or operations performed by the Permittee or on the Permittee's behalf out of issuance of this Permit, except for injuries and damages caused by the sole negligence of the City. The Permittee shall provide proof of insurance in compliance with the current provisions of the Washington Cities Insurance Authority (WCIA) Insurance and Indemnity Requirements for Contracts, Exhibit XI, as now in effect or as subsequently amended, the terms of which are incorporated herein by reference. Copies of the most current provisions shall be maintained in the office of the Community/Economic Development (CED) Department. 12.50.130 Appeal. Any person whose application for a permit for temporary use of a city right-of-way is denied or any person who feels aggrieved by the city in the granting or denying or revocation of a permit shall be entitled to appeal to the city's land use hearing examiner. The appeal must be in writing, be accompanied by an appeal fee established by the City's fee resolution, and comply with the procedures adopted by the hearing examiner. Said appeal must be filed with the hearing examiner within ten days of the date of notification of the denial or grant. The decision of the hearing examiner shall be final. 12.50.140 Nonexclusive provisions. Penalty and enforcement provisions provided in this chapter shall not be exclusive, and the city may pursue any or all remedies or relief deemed appropriate. Section 2. Severability. If any such provision, section, or part of this ordinance shall be adjudged to be invalid or unconstitutional,such adjudication shall not affect the validity of the ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. Section 3. Effective Date.A summary of this Ordinance consisting of its title shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication. ORDINANCE NO. 2020-016 5 PASSED by the City Council of the City of Arlington and APPROVED by the Mayor this 3rd day of August, 2020. CITY OF ARLINGTON 0 Barbara Tolbert, Mayor ATTEST: At CL Wendy Van ter Meersche, City Clerk APPROVED AS TO FORM: Stev n_i.--Peiffle Ci �torney ORDINANCE NO. 2020-016 6 CERTIFICATION OF ORDINANCE I, Wendy Van Der Meersche, being the duly appointed City Clerk of the City of Arlington, Washington, a municipal corporation, do hereby certify that the following Ordinance No. 2020-016 was approved at the August 3, 2020 City Council meeting. ORDINANCE NO. 2020-016 "AN ORDINANCE OF THE CITY OF ARLINGTON,WASHINGTON ADDING CHAPTER 12.50 TO THE ARLINGTON MUNICIPAL CODE RELATING TO TEMPORARY RIGHT OF WAY USE PERMITS WHERE NO CONSTRUCTION ACTIVITY WILL OCCUR" A true and correct copy of the original ordinance is attached. Dated this 4th day of August, 2020. Wendy Van Der Meersche City Clerk for the City of Arlington