10.21.15 UHCAMC PacketUNIVERSITY HILL COMMERCIAL AREA MANAGEMENT COMMISSION
REGULAR MEETING – October 21, 2015
4 - 6 p.m.
1777 West Conference Room, 1777 Broadway
AGENDA
1. Roll Call
2. Approval of the September 17, 2015 Meeting Minutes
3. Police Update - Trujillo
4. Budget Update – Jobert
5. CUSG - Ahram
6. Public Participation
7. AMPS Presentation and Recommendation - Winter
8. Hill Boulder Update - Soifer
9. UHNA Update – Nancy Blackwood
10. Parking Services Update – Matthews
11. Matters from Commissioners
12. Matters from Staff – Winters/Wiebenson
2A Update
EcoPass Update
December City Council Study Session
Changes to Panhandling Ordinance
13. Action Summary
Attachments
Meeting Minutes – September 17, 2015
Sales and Use Tax Revenue Reports – July 2015
AMPS Study Session Memo
Agenda Item – Changes to Panhandling Ordinance
University Hill Stakeholder Updates – September/October
Upcoming Meetings:
November 19 UHCAMC
Access and Development Projections
Draft Memo to Council – Study Session 12/8
Commissioner Terms: UHCAMC 2015 Priorities:
Soifer 2019 (business owner) - Establish baseline/benchmarks for Hill Reinvestment Strategy
Nelson 2020 (resident) - Determine feasibility of Hill employee Eco Pass program
Rubino 2018 (business owner) - Extend Hill Community Development Coordinator funding
Raj 2016 (resident) - Pursue anchor tenant and public-private partnerships on UHGID sites
Liguori 2017 (business/property owner) - Pursue short-term incentive program for building improvements
- Enhance communication and coordination with CU
- Integrate arts into planning for ‘Event Street’
- Evaluate liquor restriction impacts
- Greater engagement with Hill Commercial Area Community
CITY OF BOULDER, COLORADO
BOARDS AND COMMISSIONS MEETING MINUTES
NAME OF BOARD/COMMISSION: UNIVERSITY HILL COMMERCIAL AREA
MANAGEMENT COMMISSION
NAME/TELEPHONE OF PERSON PREPARING SUMMARY: Ruth Weiss – 303-413-7318
NAMES OF MEMBERS, STAFF, AND INVITED GUESTS PRESENT:
BOARD MEMBERS: RAJ (left at 5:15 pm), SOIFER, RUBINO (absent), LIGUORI, NELSON
STAFF: WINTER, WIEBENSON, JUDD, WEISS, SMITH, FELL
GUESTS: NANCY BLACKWOOD, SARA MITTON, BILL FOX, PETER RICHARDS
TYPE OF MEETING: Regular Meeting September 16, 2015
AGENDA ITEM 1 – Roll Call: Meeting was called to order at 4:06 p.m.
AGENDA ITEM 2 – Approval of the August 19, 2015 Meeting Minutes (Action Item Below):
AGENDA ITEM 3 – Citizen Participation: Sarah Mitton, Lincoln Avenue resident, asked for commissioners to
introduce themselves. Mitton mentioned that she was asked to attend regarding the 14th Street affordable housing project.
Mitton mentioned the student use of the Boulder Junction affordable housing and how the students were asked to move
as they were not permitted to lease at Depot Square. Mitton continued that the city needs to come up with a method to
keep students out of the affordable housing and need to be for people who really need the units. Peter Richards noticed
the crosswalk markings and appreciated it. The crosswalk was installed this morning per Nelson. Raj said that the hill
needs to be monitored closely.
AGENDA ITEM 4 - Police Update – Trujillo: Trujillo has been called to court and could not attend. Wiebenson said
he mentioned that it was a quite weekend and wanted the business district to know that the bear proof trash cans are
going into effect now, six relocations of bears in the last few weeks and tickets will be issued. The grace period for the
business district will be until next year. Nelson spoke to Jen Riley recently about trash cans hit by bears and Riley
appreciated the update. Soifer suggested sending the commercial district a note regarding the trash can situation.
AGENDA ITEM 5 – CUSG Update - Ahra: Wiebenson said that Joseph Soto with CU internal affairs said Ahra will
be attending UHCAMC in the future.
AGENDA ITEM 6 – Hill Boulder Update: Soifer said there was a good turnout at the Hill Boulder meeting. Hill
Boulder will be sending a letter of support of the Boyers 14th Street parking and housing. Soifer said that the housing
will be single one bedroom units and the salary range is high per Liguori. Winter said that some things fell through the
cracks at Boulder Junction and now there is a lot of scrutiny. Soifer spoke of upcoming events and a rep of Hill Boulder
will be attending. Soifer said that a marketing subcommittee is being created.
AGENDA ITEM 7 – UHNA Update: Blackwood said there is going to be a candidate forum at Grace Lutheran
Church. There is a meeting in October with the hotel people either the 22nd or 23rd. Hillanthrophy will have a clean up
soon and will address the iris’ that have overgrown in the cemetery on 9/20. Blackwood mentioned disappointment with
council’s over density/high decisions. A response to council will be crafted by UHNA soon.
AGENDA ITEM 8 – Public Hearing and Consideration of a Motion to Make a Recommendation to City Council
of the Downtown and University Hill Management Division, Parking Services 2016 Budget – Jobert: Jobert said the
city models all the employees costs, and one budget request for AMPS of $7,000 with UHGID having more expenses
than revenue. Good news is city council has made a commitment to the Hill via the 2A Projects and the General Funds
has made allocations and there will be a price increase. Liguori said that sales tax and admission tax revenue that isn’t in
the budget but is inching upwards.
Open Public Hearing. Closed Public Hearing.
Soifer motioned to recommend the budget to city council approval of the Downtown and University Hill Management
Division, Parking Services 2016 Budget. Liguori seconded the motion and all commissioners approved, 3 - 0.
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The budget is looking for efficiencies and reallocation of resources to service more Hill needs and project partnerships.
AGENDA ITEM 9 - Presentation of UHGID Access and Parking Projections – Bill Fox, Fox Tuttle Hernandez:
Fox said there is a two page spread memo in the rear of the packet with details on build out parking projects as a demand
and supply scenario. Fox discussed the numbers with the commission which included the hotel demand to come.
EcoPass on the Hill for full time employees and not students was mentioned as a deduction for needed parking. Soifer
said the reduction of parking spaces due to the EcoPass as presented was too high. Jobert questioned the number of
EcoPasses anticipated on the Hill. Smith questioned Fox on the parking environment of the Hill. Fox said there are 160
on street spaces, the 147 potential NPP commuter permits were discussed that would impact parking spaces. Fox said that
UHGID would have access 210 non residential commercial parking spaces on the Hill with a few reserved for residential.
Liguori queried the hotel parking usage. Fox projections are calculated on future build out and could change with
structure changes. Satellite parking was discussed and has the potential to help all city parking. Liguori asked if demand
goes down after 5 pm and Fox replied it depends on use. Nelson questioned why rates would be different between
CAGID and UHGID. Fox replied it doesn’t work due to different uses such as the students. Jobert mentioned that the
meters downtown takes in twice as much per meter than the Hill. Fox will work with Wiebenson on updating to current
numbers.
AGENDA ITEM 10 – Parking Services Update: Judd said irrigation design for the trees is almost complete and
should be out to bid soon. Liguori asked how long the bidding process takes and Judd said the two facets of the project
will go out separately and there is no time frame currently. Crosswalks are in place. YOAB requested the crosswalks.
Wiebenson said the roadway in front of the Fox. Zebra crosswalks are being refreshed. Judd said power washing begins
this weekend. Parent’s weekend is October 3 – 4. Banner hardware arrived today. Pedestrian lights are being worked on
and looking to use generic poles for the Hill. More bike racks are going to be installed due to need.
AGENDA ITEM 11 – Matters from the Commissioners:
AGENDA ITEM 12 – Matters from the Staff: Wiebenson said the next Hillanthrophy in October will address bike
racks and bollards. The cell phone bench new location was discussed. Wiebenson said that there was a presentation to
Commercial Brokers on the Hill market, occupancy rates, top requested tenants, and it was all well received. Winter and
Wiebenson met with Boyers last week and is reconsidering the affordable housing concept. Discussion continued with
scenarios for parking, funds to pay, is there a market for the parking? Wiebenson is looking for a commissioner to be on
the working group with Morzel and Shoemaker, Frances Draper will be looking at the city wide view, Hill Boulder will
have Bill Shrum, RHG and RSD involvement and looking for a broad base of people. Nelson volunteered for the group.
Dakota motioned to nominate Nelson and Liguori seconded, all were in favor and Nelson accepted. Lisa Smith discussed
her role with UHCAMC and the city.
Winter mentioned the AMPS Joint Board Meeting on Monday and some items that will be focused. NPP rate for
commuter permits was discussed for increase.
UHCAMC ACTION LIST:
Wiebenson reviewed progress with action items from the July 15 UHCAMC meeting. Additional items were noted:
Staff to provide schedule for 2A irrigation, lighting and event street to commissioners.
Staff to invite Mike Boyers to next meeting.
Staff to provide final baseline performance measurement report from RRC.
Budget Committee meeting scheduled for September 1.
Work with Hill Boulder on bear trash can email
Current Hill build out at next meeting - RRC
Look at grouping bike racks and locations
Soifer question to Hill Boulder
Looking into CU parking rates.
Meeting adjourned at 6:00 p.m.
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ACTION ITEMS:
MOTION: Liguori motioned to approve the August 19, 2015 meeting minutes. Raj seconded and the motion
passed 5-0.
MOTION: Soifer motioned to recommend the budget to city council approval of the Downtown and University
Hill Management Division, Parking Services 2016 Budget. Liguori seconded the motion and all
Commissioners approved, 3 -0.
MOTION: Dakota motioned to nominate Nelson for the working group and Liguori seconded, all were in favor
and Nelson accepted.
FUTURE MEETINGS:
October 21, 2015 4 – 6 pm 1777 West Conference Room Regular Meeting
APPROVED BY: UNIVERSITY HILL COMMERCIAL AREA
MANAGEMENT COMMISSION
Attest:
Ruth Weiss, Secretary Dakota Soifer, Chair
MEMORANDUM
To: University Hill Commercial Area Management Commission
From: Molly Winter, Director, Department of Community Vitality
Kathleen Bracke, GO Boulder Manager, Public Works Transportation
Chris Hagelin, Senior Transportation Planner, GO Boulder
Bill Cowern, Transportation Operations Engineer
Karl Guiler, Senior Planner, Planning Housing + Sustainability
Jay Sugnet, Senior Planner, Planning Housing + Sustainability
Date: October 5, 2015
EXECUTIVE SUMMARY
The purpose of this memo is to:
1. Seek the University Hill Commercial Area Management Commission input on draft
recommendations for key priorities for 2015 and 2016:
a. options and draft recommendations on car sharing policy;
b. options and draft recommendation for parking code amendments; and
c. draft recommendations for Transportation Demand Management (TDM) policies
for new developments.
2. Share ongoing community engagement and work plan items related to AMPS and next
steps.
The purpose of AMPS is to review and update the current access and parking management
policies and programs and develop a new, overarching citywide strategy in alignment with city
goals. The project goal is to evolve and continuously improve Boulder’s citywide access and
parking management policies, strategies, and programs in a manner tailored to address the
unique character and needs of the different parts of the city.
Staff has gathered input from the community, boards and commissions to help identify 2015
priorities for further research and community discussion. Ongoing outreach to the city advisory
boards and the community has served the dual purposes of educating the public about the
multimodal access system and seeking input and ideas about future opportunities for
enhancements. The community and board members attended an AMPS open house in September
2015, and provided the input summarized in Section II below. Staff is preparing the most recent
feedback from the boards and commissions, surveys, and September 21 open house, which will
be submitted to council prior to the study session.
Questions for the Boards and Commissions
1. What is your input on the following AMPS 2015 priority work program items:
Updates to Off-Street Parking Code Regulations
a. Recent parking data shows that current parking requirements generally require more
parking city wide than is needed for land uses. Which scenario for parking code changes
would be advised moving forward (see Section III)?
TDM Plans for New Development
b. What are the pros and cons related to the two approaches – district focused and city-wide
– for a TDM Plan ordinance for new developments?
c. Should staff include in the city-wide approach an option to have the trigger based
on the number of employees or bedrooms/housing units or number of peak hour vehicle
trips?
Car Share On-Street Parking Policy
d. Should the city include a designated on-street parking alternative for car share companies
in our car share on-street parking policy?
e. Should the city include a permitting process for geo-tracked car share vehicle to park in
undesignated public right-of-way parking spaces in managed districts, in excess of time
restrictions present in these areas?
2. Do the Boards and Commissions have any feedback regarding the ongoing AMPS
community engagement and related work plan items and next steps?
MEMO ORGANIZATION
I. Background
II. Community, Board and Commission Feedback
III. Updates to Off-Street Parking Code Regulations (Land Use Code)
IV. Transportation Demand Management Plans for New Development
V. Car Share On-Street Parking Policy
VI. Parking Pricing Preview
VII. AMPS Implementation
VIII. Ongoing Work and Coordination Related to AMPS
IX. Next Steps
I. BACKGROUND
The Access Management and Parking Strategy (AMPS) project approach emphasizes
collaboration among city departments and close coordination with the numerous interrelated
planning efforts and initiatives such as the Transportation Master Plan (TMP), Economic
Sustainability Strategy, and Climate Commitment. Guiding principles for AMPS include:
provide for all transportation modes;
support a diversity of people;
customize tools by area;
seek solutions with co-benefits;
plan for the present and future; and
cultivate partnerships.
In addition of considering enhancements to existing districts, AMPS is examining parking and
multimodal access policies and strategies outside of the districts, including parking requirements
by land use, bicycle parking requirements, neighborhood parking permit program, and on-street
parking throughout the community.
Elements of the AMPS project include:
integrated planning, coordinated with other master planning efforts;
a focus on goals and guiding principles that create an adaptable set of tools and methods,
allowing the city to continually improve and innovate to achieve its goals;
evaluation of existing and new parking and access management policies and practices
within existing districts and across the community, including on- and off-street parking,
and public and private parking areas; and
development of context-appropriate strategies using the existing parking districts as role
models for other transitioning areas within the community and incorporating national best
practices research.
The full text of the project purpose, goals and guiding principles are shown in Attachment A.
City Council held study sessions on June 10, July 29, Oct. 28, 2014 and May 26, 2015 to review
work to-date on the seven focus areas (District Management, On- & Off-Street Parking,
Technology, Transportation Demand Management, Code Changes, Parking Pricing, and
Enforcement) and provide overall direction on the approach for AMPS, as well as short-term
code changes. Staff prepared summaries of the study sessions for June and July 2014, October
2014, and May 2015.
It is important to note that if Ballot Questions No. 300 and 301 are passed by the voters on
November 3, there will be implications for the AMPS work effort. This memo reflects current
staff thinking on AMPS. If the ballot measures pass between now and the City Council Study
Session on November 12, staff will need to reevaluate the overall AMPS work plan to reflect the
city’s approach to implementing the two measures. The City Attorney’s Office submitted an
information packet memorandum to City Council on Oct. 6 with additional information on plans
for implementation of the ballot measures if they pass.
II. COMMUNITY, BOARD AND COMMISSION FEEDBACK
Staff continues to compile community, board and commission feedback to inform the
development of AMPS. Staff has been conducting outreach to residents and commuters through
the project website, surveys, Inspire Boulder, and a series of coffee talks throughout Boulder to
help develop an understanding of how the community currently views parking and access
management. To provide feedback on the relationship of potential changes to the parking code
and the TDM Plan ordinance for new developments, staff has convened a stakeholder group
consisting of neighborhood and business representatives, developers, and transportation
engineers to gather feedback on proposed changes. This group will be meeting throughout the
fall of 2015 as staff prepares for the November study session with Council.
Associated with the current phase of work the following community, board and commission
activities have occurred or been scheduled.
September 21 – AMPS Joint Board Workshop
September 28 – AMPS Open House
October 5 – Downtown Management Commission
October 8 – Downtown Boulder Business Improvement District
October 12 – Transportation Advisory Board
October 14 – Downtown Boulder, Inc.
October 15 – Boulder Junction Access Districts Commissions
October 15 – Planning Board
October 21 – University Hill Commercial Area Management Commission
November 12 – City Council Study Session
A summary of feedback from the commissions and boards will be provided at the study session.
A summary of recent community engagement, as well as the full documentation of comments
received as part of this phase of AMPS, is available on the AMPS website.
III. UPDATES TO OFF-STREET PARKING REGULATIONS (LAND
USE CODE)
With the exception of the recently approved “fixes” and addition of new bike parking regulations
to the parking code in 2014, the City of Boulder has not conducted a comprehensive review of its
parking requirements or updated the standards for some time. The current parking requirements
do not reflect the travel mode shift that has occurred in Boulder in recent years or the desired
continued mode shift in the future. Boulder’s current mode split (including higher than regional
and national trends for walking, biking, and transit) is reflected in the high number of parking
reductions that are requested and approved for new development projects and in data that shows
an increasing use of transit and bike facilities.
As part of the AMPS process, the city is evaluating updates to the land use (zoning) code to
ensure that parking is being provided according to contemporary and future travel needs. These
needs should take into account the higher percentages of people choosing to walk, bike and ride
transit as alternatives to the automobile. This memo outlines the best practices that staff has
researched and discussed in previous memoranda, includes new data on parking supply and
demand in the city (see Attachment B – Parking Study), and specifies three scenarios ranging
from conservative to more aggressive related to how much of the parking regulations should be
updated. Based on direction received from review boards and council on these scenarios, staff
will return with more specific land use changes and analysis for consideration. It should be noted
that parking regulations, particularly those that may impact residential areas may be affected if
the Ballot Questions 300 and 301 pass on November 3 as discussed in the Executive Summary.
Staff’s work on evaluating the current parking requirements are informed by policies in the
Boulder Valley Comprehensive Plan, discussed below, and the Transportation Master Plan’s
(TMP) goals of encouraging transportation options and reducing vehicle miles traveled (VMT).
City policies seek to require more efficient parking solutions and avoid excessive parking as
expressed in the two Boulder Valley Comprehensive Plan (BVCP) policies below:
6.09 Integration with Land Use
Three intermodal centers will be developed or maintained in the downtown, Boulder Junction and on
the university’s main campus as anchors to regional transit connections and as hubs for connecting
pedestrian, bicycle and local transit to regional services. The land along multimodal corridors will be
designated as multimodal transportation zones when transit service is provided on that corridor. In
these multimodal transportation zones, the city will develop a highly connected and continuous
transportation system for all modes, identify locations for mixed use and higher density development
integrated with transportation functions through appropriate design, and develop parking maximums
and encourage parking reductions. The city will complete missing links in the transportation grid
through the use of area transportation plans and at the time of parcel redevelopment.
6.10 Managing Parking Supply
Providing for vehicular parking will be considered as a component of a total access system of all
modes of transportation - bicycle, pedestrian, transit and vehicular - and will be consistent with the
desire to reduce single occupant vehicle travel, limit congestion, balance the use of public spaces and
consider the needs of residential and commercial areas. Parking demand will be accommodated in
the most efficient way possible with the minimal necessary number of new spaces. The city will
promote parking reductions through parking maximums, shared parking, unbundled parking, parking
districts and transportation demand management programs.
Consistent with the policies mentioned above, staff is considering incorporating the following
best practices from other communities into the land use code:
Updated parking requirements that include new parking minimums and parking
maximums;
Shared parking requirements;
Automatic parking reductions;
Unbundled parking in areas outside of Boulder Junction; and
Requirements for electric vehicle charging stations.
Staff worked with Fox Tuttle Hernandez Transportation Consultants on analyzing different land
uses throughout Boulder in different contexts (e.g., suburban locations away from transit vs.
mixed-use locations along transit routes) to evaluate current parking needs. The study, which
looked at the parking supply and demand of over thirty locations during peak and non-peak
periods and during the university school year, found that parking supply exceeds demand in all
instances. Therefore, consistent with the policy direction provided by the Boulder Valley
Comprehensive Plan and goals of the Transportation Master Plan (TMP), reducing parking
requirements – principally for commercial and office uses – is warranted.
The data also indicates that there is not a strong correlation between the parking needs of
properties in more urban, walkable mixed-use locations versus more isolated, vehicle-oriented,
suburban locations. This is due to city’s high level of walk-ability, bike-ability and transit access.
While differences can be seen between these locations, they are not large enough to necessitate
complicated, localized parking requirements, but rather it makes sense to have updated parking
requirements per land use citywide.
Based on the parking data results and the intrinsic connection between reducing parking
requirements and encouraging transportation options, staff has been working on creating updated
parking regulations that are linked to new Transportation Demand Management (TDM)
requirements (in addition to those TDM requirements discussed later in this memorandum). The
approach is to create new parking maximums and parking minimums per land use such that if a
new development includes parking amounts towards the lower end of required parking, the
required TDM strategies would need to be more robust to offset the need for parking and
encourage transportation options. Staff is looking for direction on whether this is a good
approach and also how aggressive the numeric parking amounts should be changed.
Questions:
a. The Fox Tuttle Hernandez parking data shows that current parking requirements
generally require more parking city wide than is needed for land uses. Which scenario for
parking code changes below would be advised moving forward?
Scenario 1
• Minimal change to current parking requirements.
• Parking lots would continue to take up large portions of sites.
• Spillover impacts would be largely avoided.
• May result in continued applications for parking reductions.
• Would have the least impact to businesses reliant on provision on parking.
• Least alignment with city BVCP policies and Transportation Master Plan (TMP)
goals.
Scenario 2
• Recognizes that alternative modes are a growing trend in Boulder based on transit use
and bike-ability.
• Would entail a reduction in parking supply requirements closer to the average parking
demand numbers in the data.
• More flexibility in site design as parking lots would take up some portions of sites.
• Would likely result in tighter parking availability during peak periods and potential
for some spillover for some land uses. If spillover parking into neighborhoods
occurred during peak periods, mitigation through the Neighborhood Parking Permit
(NPP) program may be necessary.
• Would include implementation of new TDM requirements in the land use code.
• Would likely reduce the amount of applications for parking reductions.
• May have a moderate impact to businesses reliant on provision on parking.
• Better alignment with city BVCP policies and TMP goals.
• Would be more of an incremental approach towards TMP goals.
Scenario 3
Recognizes that use of transportation options is a growing trend in Boulder based on
transit use and bike-ability.
Would entail a more significant reduction in parking supply requirements to
potentially less than the current demand.
Greatest level of site design flexibility with parking lots and garages taking up
minimal portions of sites.
Spillover parking may be more likely. If spillover parking into neighborhoods
occurred during peak periods, mitigation through the NPP program may be necessary.
• Would include implementation of more robust TDM requirements in the land use
code.
This scenario would result in minimal applications for parking reductions.
May have a detrimental impact on businesses reliant on provision of parking.
Most alignment with city BVCP policies and TMP goals.
May have biggest impact to travel behavior and modal choice if less parking is
available.
IV. TRANSPORTATION DEMAND MANAGEMENT PLANS FOR NEW
DEVELOPMENT
Staff is developing a Transportation Demand Management (TDM) Plan ordinance for new
developments. The work represents a systematic approach to holistically address the impacts of
new commercial and residential developments on our transportation system. This TDM Plan
ordinance work is moving forward together with two other initiatives that are also addressing the
impact of new developments. The two initiatives include changes to the city parking code and an
impact fee study that includes evaluating the feasibility, design and implementation of a multi-
modal impact fee.
Parking Code Changes
As described above, staff is considering changes to the city parking code which establishes
parking supply requirements for new developments. One possible modification includes the
establishment of parking maximums in addition to current parking minimums. Due to the
connection between parking supply, parking management and TDM, there is a need to evaluate
the relationship between the parking code and TDM strategies and move these two work items in
tandem. For example, if both parking maximums and minimums were implemented, the closer
the parking supply is to the minimum required number of parking spaces, the more robust the
TDM program should be to limit parking demand and prevent spillover parking in surrounding
areas.
To move the parking code changes together with TDM Plans for new developments, staff formed
a new stakeholder group with representatives from the development, commercial and
neighborhood communities. The group met in early September and will meet together two more
times during the next several months to provide input and feedback on the design of a TDM
ordinance within the context of a modified parking code. The need to develop the TDM Plan
ordinance and parking code changes together was a direct outcome of earlier input from
developers and property owners in the spring of 2015.
Development-Related Impact Fees and Excise Taxes
A second related initiative is the city’s update to the development-related fee studies. The city
has retained TishlerBise and Keyser Marston Associates to assist in the analysis. The update is
examining four different areas:
1. an update of the 2009 Impact Fee study;
2. affordable housing linkage fee on non-residential development;
3. the preparation of a study to create a public art program for new development; and
4. a study of both the capital and operating impacts to multimodal transportation facilities
and services of new development.
The last area related to multimodal transportation facilities and services will employ new
thinking regarding traditional Transportation Impact Fee and other funding programs.
TischlerBise will employ innovative approaches toward Multimodal Mobility Fees that consider
different requirements for infill/redevelopment; variations due to geographic subareas and
multimodal options; and approaches to recognize the need to move people, not cars, and finding
ways to pay for those improvements. For example, the revenue could be used to fund the
installation of electric vehicle charging stations, bike-sharing stations, long-term secure bicycle
parking, car share vehicles, or transit facility improvements. This type of fee has the potential to
work as a foundation for the TDM Plan Ordinance in which the fee provides for initial capital
improvements and long-term TDM programs and service commitments are required through the
ordinance.
The development related fee study is expected to conclude in 2016.
TDM Plan Ordinance for New Developments
The overarching reasons for incorporating TDM into the Site Review process and regulating
implementation and evaluation is to meet the goals and objectives of the Boulder Valley
Comprehensive Plan, the City of Boulder’s Sustainability Framework and the Transportation
Master Plan. At the last AMPS Study Session, City Council directed staff to study two
approaches for a TDM Plan ordinance for new developments; a city-wide approach and a district
approach.
City-wide Approach
There is wide variety of ways a city-wide TDM Plan ordinance could be designed in terms of:
what is measured to determine compliance;
level of the specific targets of the measurable objective(s);
triggers for requiring compliance;
required elements of the TDM Plans;
timing and duration of monitoring; and
enforcement.
Other considerations include identifying a sustainable way of monitoring and administrating the
program. Depending on the triggers and thresholds for compliance, a city-wide TDM ordinance
could require significant staff time and resources.
Based on feedback from boards and council, a possible city-wide TDM Plan ordinance would
measure single occupant vehicle (SOV) mode share and use vehicle trip generation as a way to
verify survey results of residents and employees. The specific targets would be based on existing
SOV mode share data, land use, size and location in terms of level of multi-modal access and
service. These targets would likely be lowered over time to reflect the city’s long-term
sustainability and transportation master plan objectives.
The trigger for requiring compliance would be based on peak trip generation as currently
outlined in the city’s Design and Construction Standards. Currently TDM plans are required
when a commercial development is expected to exceed 100 vehicle trips at peak hour and 20
vehicle trips at peak hour for residential developments. Boards and council have discussed
lowering the commercial threshold, but there has been no clear consensus.
Another option for a trigger that has come out of the stakeholder process at this point is size of
commercial and residential developments in regard to the number of employees or the number
of housing units or bedrooms. One advantage of this trigger is that the ordinance would be
designed to require the compliance of commercial tenants as oppose to property owners on the
commercial side. One of the difficulties of a TDM ordinance linked to the property is that the
owner of the property has less influence on the travel behavior of their tenants as a business has
on its employees.
In terms of the TDM Plan design and the question of required elements, feedback supports the
idea of maintain as much flexibility as possible with very few required elements. Of the wide
variety of possible elements, Eco Pass participation, appointment of an employee transportation
coordinator, participation in the evaluation process, and the unbundling of parking were
identified as being required elements when appropriate.
Based on initial feedback, city boards and council support allowing a three year period to meet
targets with annual monitoring. If after three years the property is in compliance, the annual
monitoring ends but properties would be periodically monitored as targets are lowered over
time. If the property is in non-compliance, a revised TDM plan would be required with
additional programs and incentives and the property would have one more year to reach
compliance. It has also be discussed as an option to require support from a transportation
consultant or membership in transportation management organization to receive the necessary
technical assistance if a property is non-compliant after the initial three years. If the property
continues to be in non-compliance – an enforcement phase would be initiated.
After several board and council meetings, there remains little consensus on what enforcement
looks like. The spectrum of input ranged from making a good faith effort is sufficient to
meaningful fines and penalties. Some feedback from the stakeholder groups on this topic is that
using fines is counterproductive as it takes away from funding possible TDM programs and
services. Often if a property is in noncompliance it is related to the level of multi-modal service.
In other words, it may not matter how robust a TDM Plan is or how much “teeth” an ordinance
has, if there are no accessible transportation options for employees or residents to use.
District Approach
The district approach is modeled after the system that has been implemented in Boulder
Junction. In Boulder Junction, the city adopted a Trip Generation Allowance, which states that
only 45 percent of all trips by residents and employees can be completed in a single-occupant
vehicle. Rather than meeting the ordinance as individual properties, the owners voted to establish
a TDM Access District. The TDM Access District is a general improvement district that
collected property taxes to provide TDM programs and services designed to meet the target of
the trip generation allowance. The TDM Access Districts works in conjunction with a Parking
Access District that provides funding for parking management and the construction of shared
parking structures. The revenue from the TDM Access District is currently used to provide Eco
Passes to all residents and employees, discounted bike share memberships and free memberships
to car sharing organizations.
There are many benefits of this approach. The taxes provide a sustainable and flexible source of
revenue for TDM programs and administration of the district. The focus is not on individual
property compliance and monitoring, but on how the district operates as a whole, and providing
incentives for travel behavior change by providing the necessary programs and services rather
than on the disincentive of fines and penalties. If in non-compliance, enforcement and penalties
are not necessarily required as taxes can be raised to provide the necessary programs and
services to increase mode shift. The district approach would also provide a way to bring not only
new developments, but also existing commercial and residential properties in our highest trip
generation area under the ordinance. The citywide model would only cover new developments
and has a limited impact on overall trip generation.
If the Boulder Junction model is applied to our current parking districts in downtown and on
University Hill, this approach would concentrate resources on the higher density commercial
areas of the city where parking demand and vehicle trip generation are the highest. Furthermore,
a district approach could be coupled with an ordinance covering any significant developments
that occur outside of existing districts. With increased development in North Boulder and along
East Arapahoe, a TDM Access District approach combined with capital investments in multi-
modal facilities and service could significantly improve long term sustainability and reduce the
impacts of new developments. One critical disadvantage of the approach is that the establishment
of a general improvement district (GID) requires the vote of property owners even with an
ordinance in place. In Boulder Junction, the option to form a district was developed as an
alternative to individual properties meeting the requirement of the Trip Generation Allowance on
their own.
Next Steps
The next steps in designing a TDM Plan ordinance for new developments is to develop the
criteria for setting targets and produce a matrix outline the targets for different land uses, sizes
and locations for the city-wide approach. For both approaches, staff will be working with an
internal working group and the City Attorney’s Office to begin to craft potential ordinances
reflective of the two models. Similar to potential parking code changes, the current approach to
the TDM Plan ordinance will need to be reevaluated if the Ballot Measures 300 and 301 pass on
November 3 as discussed in the Executive Summary.
Questions:
b. What are the pros and cons related to the two approaches for a TDM Plan ordinance for
new developments?
c. Should staff include in the city-wide approach an option to have the trigger based on the
number of employees or bedrooms/housing units? Or number of peak hour vehicle trips?
V. CAR SHARE ON-STREET PARKING POLICY
Car sharing has been recognized as a viable transportation option for use in urban areas. The City
of Boulder currently has a relationship with eGo car share that operates out of public and private
parking lots. Staff has been approached by other car share companies wishing to operate in
Boulder and a clear on-street parking policy is needed to help guide those conversations.
There are two basic models for on-street car sharing parking. The first is a roundtrip model
where the vehicle is located in an assigned position and must be returned to that position. The
second model allows for geo-tracked vehicles to be rented from any geo-fenced location, driven
to another geo-fenced location, and left for the next customer to find using a GPS-based mobile
application. Both business models have asked for (geo-tracked requires) on street parking
privileges. The roundtrip model would require a specific marked space in the public right of way,
while the geo-tracked, one-way model would require some type of permit or exemption from
parking at a pay station or in an NPP or other managed parking location. Current policy is that
on-street parking is shared, unbundled, managed and paid (SUMP), to meet these requests would
require both a change in policy and in ordinance. A draft consultant report is available for more
information.
Questions:
d. Should staff include a designated on-street parking alternative for car share companies in
our car share on-street parking policy?
e. Should staff include a permitting process for geo-tracked car share vehicle to park in
undesignated public right-of-way parking spaces in managed districts, in excess of time
restrictions present in these areas?
VI. PARKING PRICING PREVIEW
Based on the SUMP principles, parking pricing is a key component of parking management
ensuring parking turnover and creating an incentive to use other transportation modes. It is also a
critical element in creating economically viable and accessible community commercial districts.
Since the three access/parking districts – downtown, University Hill and Boulder Junction – are
the only commercial centers that have customer paid parking, it is essential to approach parking
pricing policies carefully and thoughtfully, mindful of the impacts to businesses and the
perceptions of the public consumers who have the alternative to shop, dine and visit commercial
areas without paying for parking.
All elements of parking pricing are under consideration: long-term, permit parking, short term,
hourly parking, and short term parking fines, as well as the cost of the parking permits in the
Neighborhood Parking Permit (NPP) areas. The consideration of parking pricing will be
undertaken in a phased approach from 2015 through 2016. Community engagement and outreach
will be an important component throughout the process. Please find below an update the status
and next steps of parking pricing in all areas:
Progress Update
Long-term, Permit Rates: Updates to long-term permit rates in the downtown and on the hill,
and in NPP commuter permit rates are included in the 2016 budget process which take into
account increases in permit parking rates charged in the private and non-profit sector.
Historically, permit rates have been increased on a regular basis. Prior to 2014 the rates were
increased every other year. Beginning in 2014, the permit rates have been increased on an
annual basis based on demand and monitoring of private parking rates. In the last three years
the permit rates have increase 28.6 percent in the downtown. The proposed rates for 2016
are:
o Downtown garages: $360 per quarter
o Downtown surface lots: $210 per quarter
o University Hill surface lots: $185 per quarter
o NPP Commuter permits: $90 per quarter
Staff will continue monitoring parking supply and parking rates on a regular basis to
recommend further adjustments as needed.
Parking Fines: The current on-street, overtime at meter parking fines have not been increased
for more than 20 years and staff will be presenting council with recommendations for fine
increases, as well as considering a graduated fine approach, in the first quarter of 2016.
Currently, staff is working with the AMPS consultant, Kimley-Horn, who surveyed
communities nationwide and in Colorado to research rates for a number of parking fines. A
summary of the research to date is included in Attachment C. This background data will
inform the recommendations. The rate of the overtime at meter fines has a proportional
relationship with the short term parking rates so it is important that these two issues are
considered together.
Short-term, Hourly Parking Rates: The on-street and garage hourly rates will also be
reviewed, including the option of variable rates at different times of day or in different
locations. Numerous communities across the country have instituted different approaches to
short term parking rates using performance or geographically based criteria. A report from
Kimley-Horn on potential pricing strategies and applications is available here. Prior to
developing any recommended changes the first step will be to determine the goals of parking
pricing. Short term parking rates were last increased in 2007. Outreach and community
engagement will be critical to arrive at an informed and balanced recommendation. In order
to learn directly from other communities, staff will be organizing along with our consultants
a panel of representatives from peer municipalities to share their experience with
performance based parking pricing.
Boulder Junction: The Boulder Junction district developed a parking pricing strategy to
implement the shared, unbundled, managed and paid (SUMP) principles and reflect the
market of the surrounding area. Staff is also phasing in on-street parking management as
newly constructed streets become available.
Neighborhood Parking Program: The rates for the Neighborhood Parking Program (NPP)
permits will be evaluated – both business and resident – to ensure a comprehensive pricing
approach. Currently, the residential permit rate is $17 per year and the permits for businesses
embedded with an NPP is $75 per year. The residential rates were last increased in 2006.
Community outreach and engagement will be integrated into every stage of this process. It is
estimated a recommendation will be forthcoming in the first quarter of 2016.
Next Steps
Staff will continue to work on the policy options described above and will return to the boards
and city council in the first quarter of 2016.
VII. ACTIONS IN PROGRESS
The following are AMPS related action items currently in progress.
New Technology Improvements
Staff has selected a vendor (contract negotiations are underway) for the replacement of the
downtown garage access, revenue control, and permitting systems to a state-of-the-art system
that will coordinate with other technologies such as the variable messaging system.
Installation is expected in 2015 and will take approximately two months to complete.
Installation will be phased and managed to maintain access to the garages.
With the projected completion of the Depot Square mixed-use development in Boulder
Junction in the second quarter of 2015, staff is working with the multiple parties – the hotel,
RTD, affordable housing and Boulder Junction Parking District – to implement a parking
management system to accommodate the variety of users of the shared parking.
The Department of Community Vitality is pursuing an innovative pilot program with a
downtown Boulder startup company, Parkifi. Parkifi is developing a real-time parking space
occupancy technology system and is proposing to pilot the program in the Broadway and
Spruce Street surface parking lot, in on-street spaces downtown, and potentially in the
downtown garages. The pilot consists of installing sensors in parking spaces at no cost to the
city. The sensors are connected to a Parkifi gateway that is connected to a cloud-based
dashboard that displays occupancy data. The goal will be to work with the city’s existing
mobile payment vendor, Parkmobile, to provide real-time parking data to customers.
Installation of the sensors is expected within the next couple of months as the details and
specifications are worked out.
Shared Parking
The goal of a shared parking partnership policy is to maximize potential opportunities for
additional shared and managed parking between private developments and established parking
districts. The proposed policy could require a mandatory step in the development review process
for projects of a certain size located inside one of the three parking districts (downtown,
University Hill and Boulder Junction) to explore options and opportunities for additional parking
and/or parking management strategies benefiting the entire district. Partnerships could take a
number of different forms, including adding district-funded parking to the private development
and/or district management options to increase or maximize private parking utilization to the
benefit of the district as well as the private property owner. Staff is proposing the approach of
requiring a mandatory discussion between the developer and the parking/access district during
the review process with voluntary compliance.
There are several examples of potential and implemented partnerships between Boulder’s access
districts and private developments. These include St. Julien Hotel and the downtown parking
district Central Area General Improvement District (CAGID); the Depot Square garage in
Boulder Junction between multiple parties (RTD, Hyatt Hotel, affordable housing, the depot and
the Boulder Junction Access District - Parking); the current negotiations between CAGID and
the Trinity Commons project; and the University Hill General Improvement District (UHGID)
and Del Mar Interests. Initial discussions are underway between BJAD and the S’Park
development in Boulder Junction, and between UHGID and a coalition of property owners for a
potential development at the southwest corner of Broadway and University.
Based on Council feedback from the last study session, staff is proceeding with the development
of a policy that would be incorporated as a step in the development review process.
District Satellite Parking Strategy
Parking opportunities are becoming more limited for employees in the downtown and the
University Hill commercial area. This strategy explores opportunities for shared parking
facilities for non-resident employees who commute into Boulder for work along major
transportation corridors associated with available transit service, off-street multiuse paths, and
on-street bike lanes, and ideally with a multimodal “mobility hub.” Commuters could park their
vehicle at vacant lots outside of the commercial districts and then finish their trip into work by
transit, bike, carpool, bike share, or car share. RTD already has several free Park-n-Ride
locations that are primarily used for trips from Boulder to areas outside of the community that
could be used by in-commuters. Staff is reviewing different types of locations:
existing public (city, RTD, CDOT) and/or private parking lots with multimodal
amenities;
existing parking lots that would require amenities such as sidewalks, bus shelters, etc.;
and
locations without existing parking facilities that could become satellite locations.
These types of satellite parking lots could be used by employees driving into the city and
finishing their trip by transit, carpool, biking, and/or walking. Satellite parking lots could also be
used for special events parking.
As one of the action items from the Transportation Master Plan, the city is continuing to work
with CDOT, RTD, Boulder County, and area property owners to explore the concept of a
mobility hub for north Boulder, at the intersection of north Broadway and US 36. The mobility
hub could include potential opportunities for enhancing transit operations and passenger
amenities, bike parking, bike share, car share, and satellite parking (Park-n-Ride), kiss-and-ride,
etc. The project team is currently revising the conceptual site plan designs based on prior City
Council input.
The city’s consultant is working on an analysis of the different potential locations, travel sheds
that have the greatest number of employees in-commuting, location assessments, and
recommendations regarding the highest priority opportunities both long- and short-term. A
presentation of the consultant findings is available here. All sites will be reviewed to ensure
compliance with existing zoning regulations and project specific requirements. Staff is pursuing
the short term options as well as working with other entities such as CDOT and the County to
include satellite parking options in corridor studies along SH119 and East Arapahoe.
Coordination with Civic Area project for access/parking/TDM programs
In conjunction with proposed changes to the Civic Area, staff is working to develop
recommendations on how to holistically manage civic area parking and a strategic TDM plan to
increase access to the Civic area by city staff, residents, library patrons, and visitors. With
construction set to begin in 2016 and the potential loss of some parking spaces, staff will be
implementing new TDM strategies and enhancing existing programs to reduce the parking
demand by employees of the city government. Some of these programs will be piloted at the end
of 2015 and potentially formally adopted in 2016 prior to construction.
VIII. ONGOING WORK AND COORDINATION RELATED TO AMPS
In addition to the items described above, the project team is advancing work in several AMPS
focus areas in 2016.
Districts
Negotiations are continuing for a shared parking option between the Central Area General
Improvement District (CAGID) and Trinity Lutheran Church in downtown for a mixed-use
project, including senior affordable housing, additional congregational space, and additional
parking.
Negotiations are also continuing for a public-private partnership redevelopment of one of the
catalyst sites - the University Hill General Improvement District (UHGID) Pleasant Street
parking lot - for a hotel, and a district parking garage.
Downtown and University Hill development and access projections will be updated during
the second and third quarters of 2015 to reflect recent zoning changes on the hill, projected
development, and the results of the employee travel surveys. This is a valuable tool in
anticipating the access needs, including parking, for the downtown area.
The downtown bike rack occupancy count was completed in August 2014. This survey
provides valuable information and informs staff of locations for additional bike racks. Based
on the data from the final report and recommendations, additional bike parking was added to
the West Pearl area.
Staff will be developing recommendations for guidelines for the creation of new
access/parking districts. Suggested locations include East Arapaho and North Boulder.
Transportation Demand Management
The communitywide Boulder Valley Employee Survey was completed at the end of 2014
with a special subsample taken from downtown employees. A survey of the travel patterns of
the University Hill commercial district employees was completed in the beginning of 2015.
A hill employee pilot Eco Pass program is recommended in the 2016 budget for
implementation in 2016.
The property owner of the future Google campus at the southwest corner of 30th and Pearl
streets petitioned to join the Boulder Junction Access District (BJAD) – Travel Demand
Management (TDM) and was accepted by the Boulder Junction Access District-Parking. In
addition, staff is in initial discussions with the Reve project at the southeast corner of 30th
and Pearl about their petitioning to join the TDM district.
On-Street/Off-Street
A downtown parklet study determined potential criteria and locations, operational parameters
and considerations, installation requirements, and recommendations for potential parklet
sites. The evaluation of the pilot parklet on University Hill has been completed and provided
valuable information for the development of future parklets in the downtown.
An alley master plan for the University Hill commercial district is proposed in the 2016
budget.
Beginning in 2015 and continuing into 2016, a review will be conducted of the
Neighborhood Parking Permit program’s regulations and how the program serves the variety
of community needs. Staff will also be preparing the Chautauqua Access Management Plan
(CAMP) that is called out in the Chautauqua lease. In addition to the Chautauqua leasehold,
the surrounding neighborhoods will be included to address any spillover impacts.
Preliminary discussions are underway with the Steelyards Association regarding the potential
for a coordinated parking management and TDM program for the mixed-use neighborhood in
anticipation of the completion of Depot Square at Boulder Junction. The homeowners’
association has expressed interest in creating a form of a NPP in their mixed-use
neighborhood.
IX. NEXT STEPS
Information from the community outreach and input from the City Council and boards will be
used to refine the AMPS 2016 work plan items. In second quarter of 2016, staff will schedule a
joint board workshop in preparation for a council study session to consider a final AMPS
Summary Report. Not all AMPS topics will be addressed within the AMPS umbrella, therefore
an on-going strategy will identify future action items to address the next generation of Boulder
access and parking needs. A timeline of all AMPS work plan items is shown in Attachment D.
As noted throughout this memo, the potential passage of Ballot Questions No. 300 and 301 on
November 3 will influence the discussion at the City Council study session on November 12.
This memo reflects the current thinking on AMPS and if the measures pass, staff will need to
reevaluate the overall AMPS work plan to reflect how the city implements the two measures.
Community engagement and outreach will continue to ensure public feedback and participation
with the AMPS. Attachment E shows an info-graphic that staff will use to help explain the
overall purpose of AMPS, moving forward.
For more information, please contact Molly Winter at winterm@bouldercolorado.gov or
Kathleen Bracke at brackek@bouldercolorado.gov, or visit www.bouldercolorado.gov/amps.
ATTACHMENTS
A. AMPS Project Purpose, Goals and Guiding Principles
B. Tuttle, Fox Hernandez Parking Study
C. Parking Fines in Boulder and Other Cities
D. AMPS Timeline
E. AMPS Infographic
ATTACHMENT A: AMPS PROJECT PURPOSE, GOALS, AND
GUIDING PRINCIPLES
Purpose
Building on the foundation of the successful multi-modal, district-based access and parking
system, the Access Management and Parking Strategy (AMPS) will define priorities and develop
over-arching policies, and tailored programs and tools to address citywide access management in
a manner consistent with the community’s social, economic and environmental sustainability
principles.
Goals
The Access Management and Parking Strategy (AMPS) will:
Be consistent with and support the city’s sustainability framework: safety and
community well-being, community character, mobility, energy and climate, natural
environment, economic vitality, and good governance.
Be an interdepartmental effort that aligns with and supports the implementation of the
city’s master plans, policies, and codes.
Be flexible and adapt to support the present and future we want while providing
predictability.
Reflect the city’s values: service excellence for an inspired future through customer
service, collaboration, innovation, integrity, and respect.
Guiding Principles
1. Provide for All Transportation Modes: Support a balance of all modes of access in our
transportation system: pedestrian, bicycle, transit, and multiple forms of motorized
vehicles—with the pedestrian at the center.
2. Support a Diversity of People: Address the transportation needs of different people at all
ages and stages of life and with different levels of mobility – residents, employees,
employers, seniors, business owners, students and visitors.
3. Customize Tools by Area: Use of a toolbox with a variety of programs, policies, and
initiatives customized for the unique needs and character of the city’s diverse
neighborhoods both residential and commercial.
4. Seek Solutions with Co-Benefits: Find common ground and address tradeoffs between
community character, economic vitality, and community well-being with elegant
solutions—those that achieve multiple objectives and have co-benefits.
5. Plan for the Present and Future: While focusing on today’s needs, develop solutions that
address future demographic, economic, travel, and community design needs.
6. Cultivate Partnerships: Be open to collaboration and public and private partnerships to
achieve desired outcomes.
!
P.O. BOX 19768, BOULDER, COLORADO 80308-2768
PHONE: 303.652.3571 | WWW.FOXTUTTLE.COM
!
!
!
Date:!September!11,!2015!
!
To:!!!Karl!Gulier!–!City!of!Boulder!
!
From:!!Carlos!Hernandez!–!Fox!Tuttle!Hernandez!Transportation!Group!
!!Bill!Fox!D!Fox!Tuttle!Hernandez!Transportation!Group!!
!!Drew!Willsey!–!Fox!Tuttle!Hernandez!Transportation!Group!
!!!
RE:$$$2015$Parking$Study$Results$$$$$$$$$$
!
This!memo!summarizes!the!results!of!a!parking!study!conducted!in!the!City!of!Boulder!between!!
Spring!and!Fall!2015.!This!study!is!an!extension!of!a!prior!study!that!was!conducted!in!Summer!
2014.!The!purpose!of!these!studies!is!to!provide!the!Transportation!Advisory!Board,!Planning!
Board,!and!the!AMPS!project!with!actual!parking!data!from!selected!sites!around!the!city.!!The!
attached!summary!presentation!provides!specific!details.!The!key!findings!from!the!2015!parking!
study!are!summarized!in!Table!1!below.!!The!ranges!shown!in!the!table!include!sites!studied!in!
2014!as!well!as!the!ones!studied!in!2015.!!A!detailed!list!of!all!sites!studied!and!when!their!peak!
demands!occurred!can!be!found!at!the!end!of!this!document.!
!
Table$1:$Parking$Supply$and$Demand$Rate$Ranges$(2014$&$
2015)$by$Land$Use$Type$(Not$Including$On$Street)!
!
Land$Use$Type$
Observed$Supply$
Range$
Observed$Demand$
Range$Units$
Lowest$Highest$Lowest$Highest$
Residential$0.48!1.72!0.43!1.27!(Spaces!per!DU)!
Commercial$2.57!5.92!1.96!4.39!(Spaces/1000!sq.!ft.)!
Office$1.92!4.15!0.92!2.79!(Spaces/1000!sq.!ft.)!
MixedPuse$
(Residential)$0.82!1.58!0.42!1.17!(Spaces!per!DU)!
MixedPuse$
(Commercial)$1.69!2.89!1.3!2.22!(Spaces/1000!sq.!ft.)!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!2
!
!
2015$Study$Details$
$
In!April!and!early!May!of!2015,!Fox!Tuttle!Hernandez!(FTH)!staff!conducted!a!comprehensive!
cityDwide!parking!study!of!6!commercial!sites,!5!office/light!industrial!sites,!8!residential!sites,!
and!3!mixedDuse!sites.!!The!dataDgathering!phase!of!this!study!was!completed!before!the!end!of!
the!spring!semester!at!the!University!of!Colorado.!!Additional!followDup!midDweek!counts!were!
conducted!at!selected!commercial!retail!sites!in!August!and!September.!!!
!
Sites! were! chosen! in! the! interest! of! obtaining! a! representative! sample! of! the! entire! city.!!
Therefore,!sites!adjacent!to!the!Community!Transit!Network!and!bike!network!were!evaluated!
as!well!as!sites!with!fewer!destinations!and!higher!reliance!on!motor!vehicle!access.!!A!visual!
survey!of!building!occupancy!and!resident!occupancy!was!also!conducted,!and!only!commercial!
and!residential!sites!that!appeared!to!be!near!or!at!full!occupancy!were!studied.!!Finally,!followD
up!calls!to!some!of!the!residential!sites!were!made!to!determine!the!ratio!of!students!to!nonD
students!for!those!complexes!to!enable!better!understanding!of!parking!patterns!of!university!
students.!
!
For!all!commercial!sites,!parking!demand!was!sampled!3!times:!weekday!afternoons!between!
noon!and!2!pm,!Friday!evenings!between!5:30!and!7:30!pm,!and!Saturday!afternoons!between!
noon!and!2!pm.!!For!all!residential!sites,!parking!demand!was!sampled!once!on!weekdays!after!8!
pm.!!For!all!office!sites,!parking!demand!was!sampled!once!on!weekday!afternoons!between!2!
and!3!pm.!!MixedDuse!sites!were!sampled!4!times!in!order!to!ensure!the!peak!demand!was!
captured!considering!the!unique!and!more!complex!demand!fluctuations!at!those!sites.!!These!
samples!were!taken!on!Friday!afternoons!between!noon!and!2!pm,!Friday!evenings!between!
5:30! and! 7:30! pm,! Saturday! afternoons! between! noon! and! 2! pm,! and! Saturday! evenings!
between!5:30!and!7:30!pm.!!Additional!midDweek!samples!were!conducted!at!four!commercial!
retail! sites! in! August! and! September.! ! These! additional! samples! were! taken! on! Tuesday!
afternoons!between!noon!and!2!pm!and!Tuesday!evenings!between!5:30!and!7:30!pm.!!Parking!
supplies!were!determined!at!the!time!of!the!first!demand!observation!at!all!sites,!and!any!
significant!changes!in!supply!that!occurred!during!subsequent!samples!were!noted!and!taken!
into!account.!FTH!staff!photographed!peak!demand!at!all!sites!when!possible!(i.e.,!when!peak!
demand!occurred!during!daylight!hours).!!Supply!rates!were!observed!in!the!field!on!study!days!
and!adjusted!when!necessary!for!temporary!supply!constraints!such!as!special!events!taking!
place!in!the!lot.!
Results,!once!entered,!were!then!used!in!conjunction!with!gross!square!footage!figures!and/or!
residential!unit!counts!that!city!planning!staff!provided!to!determine!the!observed!supply!rates!
and!peak!demand!rates!for!all!sites!(spaces!per!1000!square!feet!for!commercial!and!office!sites!
and!spaces!per!dwelling!unit!for!residential!sites).!Rates!were!calculated!both!including!and!
excluding!any!applicable!onDstreet!parking.!!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!3
!
!
!
!$
$!
0.0!
0.2!
0.4!
0.6!
0.8!
1.0!
1.2!
1.4!
1.6!
1.8!
2.0!
27th!Way!&!
Baseline!
(Creekside)!
Moorhead!&!
Table!Mesa!
(Coronado!
Apartments)!
17th!&!
Broadway!
(Mul`ple)!
28th!&!
College!
(Landmark)!
30th!&!
Glenwood!
(Glenlake!
Apartments)!
Spine!&!
Williams!
Fork!Trail!
(Meadow!
Creek!
Apartments)!Spaces$per$DU$Chart$1:$Parking$Supply$&$Highest$Demand$Rates$
for$ResidenQal$Sites$(Excluding$On$Street)$
Supply!(Off!
Street)!
Demand!(Off!
Street)!
0.0!
0.2!
0.4!
0.6!
0.8!
1.0!
1.2!
1.4!
1.6!
1.8!
2.0!
27th!Way!&!
Baseline!
(Creekside)!
Moorhead!&!
Table!Mesa!
(Coronado!
Apartments)!
17th!&!
Broadway!
(Mul`ple)!
28th!&!
College!
(Landmark)!
30th!&!
Glenwood!
(Glenlake!
Apartments)!
Spine!&!
Williams!Fork!
Trail!
(Meadow!
Creek!
Apartments)!Spaces$per$DU$Chart$2:$Parking$Supply$&$Highest$Demand$Rates$
for$ResidenQal$Sites$
Supply!(All)!
Demand!(All)!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!4
!
!
!
!!
!!
0.0!
1.0!
2.0!
3.0!
4.0!
5.0!
6.0!
7.0!Spaces$per$1000$square$feet$Chart$3:$Parking$Supply$&$Highest$Demand$
Rates$for$Commercial$Sites$(Excluding$On$
Street)$
Supply!(Off!
Street)!
Demand!(Off!
Street)!
0.0!
1.0!
2.0!
3.0!
4.0!
5.0!
6.0!
7.0!Spaces$per$1000$square$feet$Chart$4:$Parking$Supply$&$Highest$Demand$
Rates$for$Commercial$Sites$
Supply!(All)!
Demand!(All)!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!5
!
!
!
!!
!
!
0.0!
0.5!
1.0!
1.5!
2.0!
2.5!
3.0!
3.5!
4.0!
4.5!
5.0!
Manhadan!&!
South!Boulder!
Fla`ron!&!
Central!Ave.!
Pearl!Circle!
East!
Airport!Road!
East!
26th!&!Pearl!
(Google)!Spaces$per$1000$square$feet$Chart$5:$Parking$Supply$&$Highest$Demand$Rates$
for$Office$Sites$(Excluding$On$Street)$
Supply!(Off!Street)!
Demand!(Off!Street)!
0.0!
0.5!
1.0!
1.5!
2.0!
2.5!
3.0!
3.5!
4.0!
4.5!
5.0!
Manhadan!&!
South!Boulder!
Fla`ron!&!
Central!Ave.!
Pearl!Circle!East!Airport!Road!
East!
26th!&!Pearl!
(Google)!Spaces$per$1000$square$feet$Chart$6:$Parking$Supply$&$Highest$Demand$Rates$
for$Office$Sites$
Supply!(All)!
Demand!(All)!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!6
!
!
!!
!!
!
0.0!
0.5!
1.0!
1.5!
2.0!
2.5!
3.0!
Arapahoe!&!
33rd!(Peleton)!
Yarmouth!&!
Broadway!
(Uptown!
Broadway!
Mixed!Use)!
Yarmouth!&!
Broadway!
(Uptown!
Broadway!
Residen`al!
Only)!
30th!&!
Steelyards!
Place!!
(Steelyards!
Mixed!Use)!
30th!&!
Steelyards!
Place!
(Steelyards!
Residen`al!
Only)!Spaces$per$DU$Chart$7:$Parking$Supply$&$Highest$Demand$Rates$
for$MixedPUse$(ResidenQal)$Sites$(Excluding$On$
Street)$
Supply!(Off!Street)!
Demand!(Off!Street)!
0.0!
0.5!
1.0!
1.5!
2.0!
2.5!
3.0!
Arapahoe!&!
33rd!(Peleton)!
Yarmouth!&!
Broadway!
(Uptown!
Broadway!
Mixed!Use)!
Yarmouth!&!
Broadway!
(Uptown!
Broadway!
Residen`al!
Only)!
30th!&!
Steelyards!Place!!
(Steelyards!
Mixed!Use)!
30th!&!
Steelyards!Place!
(Steelyards!
Residen`al!
Only)!Spaces$per$DU$Chart$8:$Parking$Supply$&$Highest$Demand$Rates$
for$MixedPUse$(ResidenQal)$Sites$
Supply!(All)!
Demand!(All)!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!7
!
!
!
!!
$$
$
$
$
$
0.0!
0.5!
1.0!
1.5!
2.0!
2.5!
3.0!
3.5!
4.0!
Arapahoe!&!33rd!
(Peleton)!
Yarmouth!&!Broadway!
(Uptown!Broadway)!
30th!&!Steelyards!Place!
(Steelyards!Commercial!
+!Office)!Spaces$per$1000$square$feet$Chart$9:$Parking$Supply$&$Highest$Demand$Rates$
for$MixedPUse$(Commercial)$Sites$(Excluding$On$
Street)$
Supply!(Off!Street)!
Demand!(Off!Street)!
0.0!
0.5!
1.0!
1.5!
2.0!
2.5!
3.0!
3.5!
4.0!
Arapahoe!&!33rd!
(Peleton)!
Yarmouth!&!Broadway!
(Uptown!Broadway)!
30th!&!Steelyards!Place!
(Steelyards!Commercial!+!
Office)!Spaces$per$1000$square$feet$Chart$10:$Parking$Supply$&$Highest$Demand$
Rates$for$MixedPUse$(Commercial)$Sites$
Supply!(All)!
Demand!(All)!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!8
!
!
Comparison$to$Peer$Cities$
$
In!order!to!gather!perspective!on!and!context!to!Boulder’s!existing!parking!code,!FTH!staff!
reviewed!the!parking!rate!requirements!of!three!other!selected!cities:!Davis,!CA;!Walnut!Creek,!
CA;!and!Portland,!OR.!!!Tables!summarizing!how!Boulder’s!code!compares!to!these!peer!cities!
are!given!below.!!!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
$
$
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
Use
Type Davis,
CA Portland,
OR Walnut
Creek,
CA Boulder,
CO
Detatched
Dwellings
1
covered
space,
1
uncovered
space
for
0
-‐
4
bedrooms;
1
additional
uncovered
space
per
additional
bedroom.
2
covered
spaces
per
DU.Typically,
1
space
per
DU;
0
for
MU-‐4
or
RH-‐7.
Attached
Dwellings 1
covered
space,
1
uncovered
for
0
-‐
3
bedrooms,
1
additional
space
per
additional
bedroom.
1
additional
space
per
DU
compared
to
detatched
dwelling
requirement.
Multi-‐family
Dwellings 1
space
for
0
-‐
1
bedrooms,
1.75
for
2
bedrooms,
3
for
for
3+
bedrooms.
1.25
spaces
per
studio,
1.5
per
1
bedroom,
2
per
2
bedrooms,
2.25
per
2+
bedrooms.
At
least
one
space
must
be
covered.
Retail 1
space
per
300
sqare
feet
of
gross
area.Minimum:
1
space
per
500
square
feet
of
net
building
area.
Maximum:
1
per
196
square
feet.1
space
per
250
square
feet
of
RFA.
Restaurants
(Dine-‐in)1
space
per
3
seats.Minimum:
1
space
per
250
square
feet
of
net
building
area.
Maximum:
1
per
63
square
feet.
1
space
per
5
seats
and
1
per
75
square
feet
of
floor
area
for
portable
seats
or
tables.
Mixed
Use 1
space
per
350
square
feet
of
gross
commercial
area;
1
per
DU.N/A
1
space
per
200
square
feet
of
rentable
floor
area
up
to
50,000
square
feet,
1
per
250
square
feet
after
50,000.
Residential
requirement
determined
on
case-‐by-‐case
basis.
*
Requirements
listed
are
minimums
unless
otherwise
noted
Typically,
1
space
per
DU.Minimum:
Varies
by
zoning.
Either
1
space
per
DU;
1
for
1
-‐
2
bedrooms,
1.5
for
3
bedrooms,
and
2
for
4
+
bedrooms;
or
1
for
1
bedroom,
1.5
for
2
bedrooms,
2
for
3
bedrooms,
and
3
for
4
+
bedrooms.
No
minimum
for
MU-‐4
or
RH-‐7.
Maximum:
typically,
no
maximum
except
for
MU-‐4
and
RH-‐7
(1
space
per
DU
maximum).
Minimum:
Varies
by
zoning.
No
minimum
for
RH-‐3,
RH-‐6,
RH-‐7,
MU-‐4;
1
space
per
400
square
feet
of
floor
area
for
BCS,
MR-‐1,
IS,
IG,
IM,
A;
1
per
400
sq.
ft.
if
residential
is
less
than
50%
of
FA
(otherwise
1
per
500
sq.
ft.)
for
RMX-‐2,
MU-‐2,
IMS,
BMS;
1
per
300
sq.
ft.
if
residential
is
less
than
50%
of
FA
(otherwise
1
per
400
sq.
ft.);
1
per
300
sq.
ft.
of
FA
for
all
other
zones.
Maxiumm:
typically,
no
maximum
except
for
RH-‐3,
RH-‐6,
RH-‐7,
and
MU-‐4
(1
space
per
400
sq.
ft.
of
FA
if
residential
is
less
than
50%
of
FA,
otherwise
1
space
per
500
sq.
ft.).
Table 2: Summary of Basic Rate Requirements Across Selected Cities by Major Land Use Type
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
Example
Number
of
DU's
or
Amount
of
Square
Feet Davis,
CA Portland,
OR Walnut
Creek,
CA
Boulder,
CO****
1BR
DU 2 1 2 1
2BR
DU 2 1 2 1
3BR
DU 2 1 2 1
4+BR
DU 2 1 2 1
1BR
DU 2 1 3 1
2BR
DU 2 1 3 1.5
3BR
DU 2 1 3 2
4+BR
DU 3 1 3 3
1BR
DU 1 1 1.5 1
2BR
DU 1.75 1 2 1.5
3BR
DU 3 1 2.25 2
4+BR
DU 3 1 2.25 3
5,000
SF 17 10 20 17
15,000
SF 51 30 60 51
40,000
SF 133 80 160 133
5,000
SF 67 20 40 67
10,000
SF 133 40 80 133
15,000
SF 200 60 120 200
10,000
SF
with
10
DU 39 40 60 0
-‐
43
25,000
SF
with
40
DU 111 90 165 0
-‐
123
50,000
SF
with
200
DU 343 300 400 0
-‐
367
*
Requirements
listed
are
minimums
**
Assuming
200
seats
per
5,000
sq.
ft.
of
restaurant
space
***
Assuming
1
space
per
DU
for
Walnut
Creek,
CA
and
Boulder,
CO
mixed-‐use
residential
(actual
requirement
determined
on
case-‐by-‐case
basis)
****
Assuming
typical
suburban
zoning
type
(highest
minimum
possible
listed;
minimums
may
be
lower
depending
on
other
criteria)
Restaurants
(Standalone
Dine-‐In)**
Mixed
Use***
Detatched
Dwellings
Attached
Dwellings
Multi-‐family
Dwellings
Retail
Table 3: Examples of Space Requirements per Parking Code by Selected City
and Land Use Type (Not Including Reductions)
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!9
!
!
Correlations$to$Transit$Network$Accessibility$and$Bicycle$Facilities$
$
In! addition! to! comparing! Boulder’s! parking! code! to! that! of! selected! peer! cities,! FTH! staff!
researched!each!2015!study!site’s!proximity!to!transit!routes,!both!on!and!off!the!Community!
Transit! Network! (CTN),! as! well! as! proximity! to! existing! bicycle! facilities,! and!related!those!
proximities!to!parking!demand!in!order!to!ascertain!if!any!correlations!exist.!!!These!correlation!
graphs!are!depicted!below.!
!
!!
!!
0!
1!
2!
3!
4!
0!2!4!6!8!Peak$Demand$Rate$Number$of$Nearby$Transit$Routes$
Chart$11:$Commercial$
Demand$versus$All$
Nearby$Transit$Routes$
0!
1!
2!
3!
4!
0!1!2!3!4!5!Peak$Demand$Rate$Number$of$Nearby$CTN$Routes$
Chart$12:$Commercial$
Demand$versus$Nearby$
CTN$Routes$
0!
1!
2!
3!
0!1!2!3!4!Peak$Demand$Rate$Number$of$Nearby$Transit$Routes$
Chart$13:$Commercial$
Mixed$Use$Demand$
versus$All$Nearby$
Transit$Routes$
0!
1!
2!
3!
0!0.5!1!1.5!Peak$Demand$Rate$Number$of$Nearby$CTN$Routes$
Chart$14:$Commercial$
Mixed$Use$Demand$
versus$Nearby$CTN$
Routes$
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!10
0
!
!
!!
!!
0!
0.5!
1!
1.5!
0!2!4!6!8!Peak$Demand$Rate$Number$of$Nearby$Transit$Routes$
Chart$15:$ResidenQal$
Demand$versus$All$
Nearby$Transit$Routes$
0!
0.5!
1!
1.5!
0!1!2!3!4!5!Peak$Demand$Rate$Number$of$Nearby$CTN$Routes$
Chart$16:$ResidenQal$
Demand$versus$Nearby$
CTN$Routes$
0!
0.5!
1!
1.5!
0!1!2!3!4!Peak$Demand$Rate$Number$of$Nearby$Transit$Routes$
Chart$17:$ResidenQal$
Mixed$Use$Demand$
versus$All$Nearby$
Transit$Routes$
0!
0.5!
1!
1.5!
0!0.5!1!1.5!Peak$Demand$Rate$Number$of$Nearby$CTN$Routes$
Chart$18:$ResidenQal$
Mixed$Use$Demand$
versus$Nearby$CTN$
Routes$
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!11
1
!
!
!!
!!!
!
!
!
!
!
!
!
!
!
!
!!
0!
1!
2!
3!
4!
0!2!4!6!Peak$Demand$Rate$Number$of$Nearby$Bike$FaciliQes$
Chart$19:$Commercial$
Demand$versus$Nearby$
Bike$FaciliQes$
0!
0.5!
1!
1.5!
0!2!4!6!Peak$Demand$Rate$Number$of$Nearby$Bike$FaciliQes$
Chart$20:$ResidenQal$
Demand$versus$Nearby$
Bike$FaciliQes$
0!
1!
2!
3!
0!0.5!1!1.5!2!2.5!Peak$Demand$Rate$Number$of$Nearby$Bike$FaciliQes$
Chart$21:$Commercial$
Mixed$Use$Demand$
versus$Nearby$Bike$
FaciliQes$
0!
0.5!
1!
1.5!
0!0.5!1!1.5!2!2.5!Peak$Demand$Rate$Number$of$Nearby$Bike$FaciliQes$
Chart$22:$ResidenQal$
Mixed$Use$Demand$
versus$Nearby$Bike$
FaciliQes$
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015$Parking$Study$Results!
September!11,!2015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Page!12
2
!
!
Key$Questions$To$Consider$
$
The! following! questions! can! be!considered! as! part! of! upcoming! conversations! with!
Transportation!Advisory!Board!and!Planning!Board!regarding!parking!code!adjustments:!
!
•Should!new!requirement!be!a!parking!minimum,!parking!maximum,!or!both?!
o If!no!minimum,!should!parking!reductions!be!eliminated?!
o If! maximum,! should! a! new! exception! process! be! created! to! allow! for! more!
parking!in!certain!circumstances!and/or!when!requested?!
•Should!different!parking!requirements!be!created!depending!on!zoning!district/typology!
or!by!land!use!type,!or!a!combination!of!the!two?!
o If! by! typology,! should! proximity! to! multiDmodal! networks! or! CTN! routes! be!
considered?!
•If!parking!reductions!are!kept,!should!the!criteria!for!obtaining!a!reduction!be!more!
stringent!or!more!lenient?!
•What! methodology! should! be! used! to! determine! option! ranges! (i.e.,! conservative,!
moderate,!progressive)?!
•Can! the! data! determine! automatic! percentage! parking! reductions! that! should! apply!
under!certain!scenarios?!
•How!do!other!AMPS!components!factor!into!any!proposed!code!changes!(e.g.,!TDM,!
district!parking!enforcement,!et!cetera)?!
•Where!should,!if!at!all,!unbundled!parking!be!required!outside!of!Boulder!Junction?!
•Should!special!considerations!be!made!in!the!updated!code!for!electric!vehicles!(EVs)?!
o If!so,!how!many!EV!stations!should!be!required?!
o What!type(s)!of!EV!stations!should!be!required?!
!
$
!
$
$
!
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
2015
Sites
Weekday
Afternoon
2
-‐
3
PM
(Tuesday
thru
Thursday)
Weekday
Late
Night
8
-‐
11
PM
(Tuesday
thru
Thursday)
CU
Move-‐in
Tuesday
Afternoon
12
-‐
2
PM
CU
Move-‐in
Tuesday
Evening
5:30
-‐
7:30
PM
Tuesday
Afternoon
12
-‐
2
PM
Tuesday
Evening
5:30
-‐
7:30
PM
Friday
Afternoon
12
-‐
2
PM
Friday
Evening
5:30
-‐
7:30
PM
Saturday
Afternoon
12
-‐
2
PM
Saturday
Evening
5:30
-‐
7:30
PM
2 28th
&
College
(Landmark)0.83 X
9 20th
&
Glenwood
(Glenlake
Apartments)0.8 X
10 27th
Way
&
Baseline
(Creekside
Apartments)1.08 X
14 Spine
&
Williams
Fork
Trail
(Meadow
Creek
Apartments)1.27 X
16 Moorhead
&
Table
Mesa
(Coronado
Apartments)0.76 X
19 17th
&
Broadway
(Multiple)0.77 X
22 20th
&
Steelyards
Place
(Residential
Only)0.79 X
23 Yarmouth
&
Broadway
(Uptown
Broadway
Residential
Only)0.43 X
3 Arapahoe
&
33rd
(Peleton)2.22 0.9 X X X X
6 26th
&
Walnut
(Marshall's
Plaza)1.96 X X X X X
7 20th
&
Steelyards
Place
(Mixed
Use
Portion)1.3 0.42 X X X X
8 29th
&
Walnut
(Target)*2.15 X X X X X
12 Broadway
&
Quince
(Lucky's
Market/Nomad)3.14 X X X X X
13 Yarmouth
&
Broadway
(Uptown
Broadway
Mixed
Use
Portion)1.58 1.17 X X X X
15 26th
&
Pearl
(Hazel's/Wahoo's)3.36 X X X
17 28th
&
Iris
(Safeway)3.26 X X X X X
20 Baseline
&
28th
(Loftus)2.88 X X X
1 Manhattan
&
South
Boulder
(Multiple)2.79 X
4 Flatiron
&
Central
Ave.
(Multiple)2.61 X
5 Pearl
Circle
East
(Multiple)2.75 X
11 Airport
Road
East 1.71 X
21 26th
&
Pearl
(Google
Campus
-‐
Largest
Two
Buildings)2.14 X
*
Peak
demand
(2.61
rate)
that
occurred
on
CU
move-‐in
day
is
noted
in
red
highlight.
Typical
peak
demand
is
highlighted
in
yellow.
2014
Sites
Weekday
Afternoon
2
-‐
3
PM
(Tuesday
thru
Thursday)
Weekday
Late
Night
8
-‐
11
PM
(Tuesday
thru
Thursday)
CU
Move-‐in
Tuesday
Afternoon
12
-‐
2
PM
CU
Move-‐in
Tuesday
Evening
5:30
-‐
7:30
PM
Monday
Afternoon
12
-‐
2
PM
Monday
Evening
5:30
-‐
7:30
PM
Friday
Afternoon
12
-‐
2
PM
Friday
Evening
5:30
-‐
7:30
PM
Saturday
Afternoon
12
-‐
2
PM
Saturday
Evening
5:30
-‐
7:30
PM
A Walnut
&
9th
(Multiple)0.43 X
B 18th
&
Marine
(Multiple)1.04 X
C 21st
&
Goss
(Multiple)0.53 X
D 28th
&
Pearl
(Whole
Foods
Shopping
Center)4.39 X
E Broadway
&
Baseline
(Basemar)3.36 X
F Broadway
&
Table
Mesa
(King
Soopers)2.77 X
G 28th
&
Arapahoe
(The
Village)2.77 X
H 28th
&
Iris
(Willow
Springs
Shopping
Center)3.16 X
I 29th
&
Arapahoe
(29th
Street)2.09 X
J Pearl
&
Foothills
Northwest
Side
(Multiple)1.73 X
K Pearl
&
Foothills
Southwest
Side
(Multiple)0.92 X
Residential
Commercial/Retail
Industrial/Office
Site
ID
Number
Residential
Commercial/Retail
Office
Highest
Commercial
Demand
Rate
Observed
(Excluding
On
Street)
Highest
Residential
Demand
Rate
Observed
(Excluding
On
Street)
Days
Studied
(Highlighted
Indicates
Peak
Demand
Observed)
Site
Site
ID
Number Site
Highest
Commercial
Demand
Rate
Observed
(Excluding
On
Street)
Highest
Residential
Demand
Rate
Observed
(Excluding
On
Street)
Days
Studied
(Highlighted
Indicates
Peak
Demand
Observed)
Table 4: Summary of Days Observed in 2014 & 2015 by Site
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
1 2 3 4 1 2 3 1 2 3
1 2.79 DASH LEAP 206 1 1 2 1 1 1 1 4 36 3
2 0.83 STAM ORBIT 201 J 1 2 3 1 1 2 36 3
4 2.61 LEAP 206 208 S 0 3 3 1 1 15 1
5 2.75 LEAP 206 S 0 2 2 1 1 15 1
6 1.96 HOP LEAP ORBIT DART 205 F/H/T 206 1 3 4 1 1 70 6
8 2.15 HOP BOUND ORBIT LEAP 205 206 2 2 4 1 1 70 6
9 0.8 BOUND 205 208 1 2 3 1 1 2 57 5
10 1.08 BOUND 204 1 1 2 1 1 1 1 4 57 5
11 1.71 0 0 0 1 1 0 0
12 3.14 SKIP M 1 1 2 1 1 2 46 4
14 1.27 205 0 1 1 1 1 2 36 3
15 3.36 HOP ORBIT DART 205 206 F/H/T 1 3 4 1 1 70 6
16 0.76 DASH LEAP 204 206 1 2 3 1 1 2 57 5
17 2.73 BOUND ORBIT 205 208 F/H/T 1 3 4 1 1 1 1 4 70 6
19 0.77 HOP SKIP DASH STAM 203 204 4 2 6 1 1 2 57 5
20 2.88 BOUND 203 1 1 2 1 1 1 1 1 5 70 6
21 2.14 HOP ORBIT DART 205 206 F/H/T 1 3 4 1 1 70 6
3 2.22 0.9 JUMP S J 1 2 3 1 1 2 57 5
7 1.3 0.42 BOUND 208 1 1 2 1 1 2 70 6
13 1.58 1.17 SKIP M 204 1 2 3 1 1 57 5
22 0.79 BOUND 208 1 1 2 1 1 2 57 5
23 0.43 SKIP M 204 1 2 3 1 1 57 5
Walkability
Rating
Walkability
Rating
Index
Mixed
Use
Sites
On
Street
Bike
Lane
Bike
Facilities
Total
Proximate
Boulder
Transit
Routes
Total
Proximate
Numbered
Transit
Routes
Total
Proximate
Transit
Routes
(All)
Site
Future
Boulder
Community
Transit
Network Other
Transit
Existing
Highest
Commercial
Demand
Rate
Observed
(Excluding
On
Street)
Highest
Residential
Demand
Rate
Observed
(Excluding
On
Street)
Paved
Shoulder
Sidewalk
Connection
Soft
Surface
Multi-‐use
Street
with
Single
Bike
Lane
Total
Proximate
Bike
System
Features
Transit
Designated
Bike
Route
Multi-‐use
Path
Table 5: Site Transit & Bike Route Access Analysis
ATTACHMENT B: TUTTLE, FOX HERNANDEZ PARKING STUDY
Parking Fines in Boulder and Other Cities *Increase was for “safety violations” only, not overtime fines. **Escalating fines: Breckenridge is based on 365 days; Fort Collins has no meters; overtime fine escalated based on 180 days (Initial infraction is warning) Note: Pasadena fines have been increased based on the CPI so are not in even dollars. Table data is rounded to nearest dollar. Austin has “standard” fines, with a lesser amount accepted for a certain period after issuance. Table displays the reduced “early payment” amounts. INFRACTION Boulder, CO
Ann Arbor, MI
Austin, TX
Breckenridge, CO
Colorado Springs, CO
Denver, CO (Including
Cherry Creek)
Fort Collins, CO
Longmont, CO
Madison, WI
Pasadena, CA
Portland, OR Santa Monica, CA Seattle, WA Most Recent change 2007* 2010201520102012Expired/Unpaid Meter $15 $20 $30N/A$20 $25NA NA$25 $47 $60$53$44Overtime Parking‐Meter $15 $35 $40 $30‐200**$30 $25NA NA$35 $47$39/45/65$53$ 47Overtime ‐Non‐Meter $20 $35 $30 $30‐200**$30 $25W‐$50** $20$35 $47$39/45/65$64$47Outside Lines/Markings $15 $ 35$40 $30 $40 $25 $25 $30 $41 $39$53$47Double Parking $15 $50 $70 $30 $50 $25$ 25 $10$30 $47 $80$53$47Loading Zones (Commercial) $20 $45 $40 $30 $50$ 25$25 $40 $41 $90$53$53No Permit (in Permit Zone) $25 $25 $40 $30$25 $25 $30 $47$64$53Bus Stop $25 $35 $40 $30$25 $25 $45 $281 $100 $304 $47Crosswalk $25 $35 $40 $30 $50 $25 $25 $20$30$ 47$90$53$47Red Zone/Fire Lane $50 $50 $70 $30 $70 $50 $25 $30‐100$58 $80$53‐64$47Parking Prohibited $25 $35 $40 $30 $50 $25 $25 $25$ 30$47$64$47No Stopping/Standing $25 $35 $40 $30 $50 $25 $25 $30‐45$53 $80$64$47Fire Hydrant $50 $40 $70 $30 $50 $25 $25 $35$30 $53 $150$53$47Blocking Traffic $15 $35 $40 $30 $50 $25 $25 $41 $50$53$47Disabled Parking $112 $125 $300 $100 $350 $150 $100 $100 $150$362 $160‐435$ 399$250Blocking Driveway $25 $35 $40 $30 $50 $25 $25 $30 $47 $90$ 53$ 47ATTACHMENT C: PARKING FINES IN BOULDER AND OTHER CITIES
AMPS Summary Report2nd Quarter 2016
Alternatives Analysis
Alternatives Analysis
Development & Implementation
Development & Implementation
Alternatives Analysis
Policy/StrategyRecommendations
Policy/Strategy Recommendations Development & Implementation
Policy/StrategyRecommendations Development & Implementation
Policy/Strategy Recommendations
Alternatives Analysis Policy/Strategy Recommendations Development & Implementation
Alternatives Analysis Policy/Strategy Recommendations
Alternatives Analysis
Alternatives Analysis
Alternatives Analysis
Alternatives Analysis
Alternatives Analysis Policy/Strategy Recommendations
Alternatives Analysis
Alternatives Analysis Policy/Strategy Recommendations
Alternatives Analysis Policy/Strategy Recommendations Development & Implementation
Implementation
Alternatives Analysis Implementation
Alternatives Analysis Policy/StrategyRecommendations Development & Implementation
Implementation
Policy/StrategyRecommendations
Policy/StrategyRecommendations
Development & Implementation
Development & Implementation
Policy/StrategyRecommendationsAlternatives Analysis
Development & ImplementationPolicy/StrategyRecommendationsAlternatives Analysis
Development & ImplementationPolicy/Strategy Recommendations
Access Management & Parking Strategy Timeline
Analyze Satellite Parking and Other Mobility Options
Explore Shared Parking Policy with Public-Private Partnerships
Develop Criteria to Pilot New Multimodal Districts
Develop Civic Area Access & Parking Strategy
Reassess Long-term On-Street Parking (72-Hour) Limitation
Develop a Curbside Space Management Plan
Explore Transportation Demand Management Optionsfor New Private Developments
Transportation Demand Management Toolkit for Private Developments
Explore Trip Reduction Tools for Existing Commercial
Investigate Bundled First & Final Mile Strategies
Explore Parking Cash-Outs for CAGID Employees
Evaluate Neighborhood Parking Permit Program Pricing
Evaluate Pricing Options for Parking Rates
Recommend Amount for Overtime at Meter Fine
Consider a Graduated Fine Structure
Install New PARCS Equipment in Downtown Garages
Integrate PARCS Software with Existing Technology
Explore Applications to Enhance the Parking Experience
Evaluate & Update Parking Requirements
Explore Automatic Parking Reductions for Beneficial Projects
Evaluate Expansion of Shared, Unbundled, Managed & Paid Parking in New Districts or as Potential Overlays
2ND QUARTER 3RD QUARTER 4TH QUARTER 1ST QUARTER 2ND
20162015City Council Study Session on AMPS - Nov. 10, 2015= City Council Review of Draft Recommendations
= City Council Review of Policy/Strategy Recommendations
DistrictManagement
Code
Pricing
Technology
Parking
$$$
TravelOptions
Policy/ Strategy
Recommendations
Alternatives Analysis Policy/Strategy Recommendations Implementation
Development & ImplementationPolicy/Strategy Recommendations
ATTACHMENT D: AMPS TIMELINE
Access Management
& Parking Strategy
Boulder is a national leader in providing options
for access, parking and transportation. To support
the community's social, economic and environmental
goals, it is important to create customized solutions
that meet the unique access goals of Boulder’s
diverse districts, residential and commercial.
AMPS: A balanced approach to enhancing
access to existing districts and the rest of the
community by increasing travel options — biking,
busing, walking and driving — for residents,
commuters, visitors and all who enjoy Boulder.
mixed use
neighbor-
hoods
• North Boulder
historic
commercial
• Downtown
• University Hill
residential
• Mixed Use
• Multi-Family
• Single-Family
office park
• East Arapahoe
• Flatirons Park
transit
oriented
development
• Boulder Junction
Depot Square
suburban
commercial
• 29th Street
• Table Mesa
• BaseMar
PEARL DIAGO NAL9
3
/
B
ROAD
WA
Y
US
3
628th ARAPAHOE
FOOTHILLSLongmontntLongmoontnt
LafayetteeLNNNederlandde
Golden
Denver
mixed useemixed usee
neighbor--r-
hoods
• North Boulderou
hhhistorichhhhistorich
cccommerccial
•• Downtown
•• University HHill
residential
• Mixed Use
• Multi-Family
• Single-Family
ce parkkoffi
t Arapahoe• Eas
tirons ParkFlat• Fla
tttransit
oorientedooriented
ddevelopmentdevelo ent
• Boulder Junctiono
Depot Squarepo
ssuburban
ccommerciall
• 29th Street
• Table Mesa
•• BaseMar
LyonsLyons
district
management
codepricing
TOOLS FOR CHANGE
technology parking
$$$
travel
options
minute
neighborhood
15Mixed-income, mixed-use
neighborhoods where residents
can easily walk or bicycle to meet
all basic daily, non-work needs.
bouldercolorado.gov/amps
ATTACHMENT E: AMPS INFOGRAPHIC
CITY OF BOULDER
CITY COUNCIL AGENDA ITEM
MEETING DATE: October 6, 2015
AGENDA TITLE: Introduction, first reading, consideration of a motion to publish by
title only and adopt by emergency an ordinance amending title 5 “General Offenses” by
amending section 5-3-7, “Aggressive Begging Prohibited,” B.R.C. 1981 and repealing
section 5-3-12 “Begging in Certain Places Prohibited,” B.R.C. 1981 to comply with a
decision of the U.S. District Court and setting forth related details.
PRESENTER/S
Jane S. Brautigam, City Manager
Tom Carr, City Attorney
Greg Testa, Chief of Police
EXECUTIVE SUMMARY
The purpose of this council agenda item is to bring the city into compliance with a
decision of the United States District Court for the District of Colorado. In Browne v.
City of Grand Junction, the district court struck down Grand Junction’s panhandling
ordinance. This decision relies upon the United States Supreme Court decision in Reed
v. Town of Gilbert announced June 18, 2015. In light of these decisions, Boulder’s
panhandling ordinances are subject to potential legal challenge. Accordingly, staff
recommends that Council adopt the proposed ordinance amending the aggressive
panhandling provisions and repealing the ban on panhandling in certain places.
STAFF RECOMMENDATION
Suggested Motion Language:
Staff requests Council consideration of this matter and action in the form of the following
motion:
Motion to introduce, adopt on emergency and order published by title only, an ordinance
amending title 5 “General Offenses” by amending section 5-3-7, “Aggressive Begging
Prohibited,” B.R.C. 1981 and repealing section 5-3-12 “Begging in Certain Places
Prohibited,” B.R.C. 1981 to comply with a decision of the U.S. District Court and setting
forth related details..
COMMUNITY SUSTAINABILITY ASSESSMENTS AND IMPACTS
Economic: The restriction on panhandling on the Pearl Street Mall and in the
University Hill Business District is intended to facilitate tourism and commercial
activity. Repeal could have a negative impact on businesses in these areas.
Environmental: None.
Social: None.
OTHER IMPACTS
Fiscal –None.
Staff Time –Considering the limited number of citations issued, there will be no
substantial savings in staff time resulting from the adoption of the proposed ordinance.
BOARD AND COMMISSION FEEDBACK
None
BACKGROUND
The Boulder revised code includes two restrictions on panhandling, which are found in
sections 5-3-7 and 5-3-12. Section 5-3-7 prohibits aggressive begging. Aggressive
begging is defined to include
Repeated requests after a refusal by the individual addressed.
Blocking the passage of the individual addressed.
Addressing fighting words to the individual addressed.
Touching the individual addressed.
Section 5-3-12 prohibits begging in certain places. This section applies only on the Pearl
Street Mall and in the University Hill business district. In those areas, it prohibits
panhandling in the following places:
Within 10 feet of a wall on the Pearl Street Mall
Within 5 feet of a wall in the University Hill business district
Within 5 feet of a wall in the Downtown area
Within ten feet of any outdoor patio where food or drink are served
Within ten feet of any vending cart operating pursuant to a permit from the city
Neither section results in many citations. In 2015, to date, the Boulder Police
Department has issued five citations under section 5-3-7 and none under section 5-3-12.
There are no pending cases under either provision in the Boulder Municipal Court.
On September 30, 2015, United States District Court Judge Christine M. Arguello issued
an order in Browne v. City of Grand Junction striking down the City of Grand Junction’s
panhandling ordinance. Judge Arguello held that the bulk of the city’s panhandling
ordinance violated the First Amendment to the United States Constitution. She held that
any panhandling restriction must support a compelling governmental interest. The only
such interest the court found supported by the ordinance was the protection of public
safety embodied in a provision prohibiting threatening behavior that would place a
reasonable person in fear for his or her safety.
The decision is sufficiently broad so that much of city’s existing panhandling restrictions
could be called into question. Accordingly, on October 5, 2015, Police Chief Greg Testa
issued a directive to all Boulder Police Officers to cease any enforcement of sections 5-3-
7 and 5-3-12.
Staff recommends that Council adopt the proposed ordinance, which would amend
section 5-3-7 to define aggressive panhandling as threatening, coercive or obscene
conduct that would place a reasonable person in fear or using fighting words. The
proposed ordinance would repeal section 5-3-12.
Staff requests that council adopt this proposed ordinance as an emergency measure,
because as written the current code restricts what are now recognized as first amendment
rights. In addition, the current code could subject the city to potential liability.
ATTACHMENT
Attachment A – Proposed Ordinance
Attachment B – Browne v. City of Grand Junction, Order Dated September 30, 2015.
K:\POAD\o-Panhandling Ordinance-.docx
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ORDINANCE NO.
AN EMERGENCY ORDINANCE AMENDING TITLE 5 “GENERAL
OFFENSES” BY AMENDING SECTION 5-3-7, “AGGRESSIVE BEGGING
PROHIBITED” AMENDING SECTION (a)(1) AND REPEALING SECTION
(a)(4) AND (c) AND REPEALING SECTION 5-3-12 “BEGGING IN
CERTAIN PLACES PROHIBITED” AND SETTING FORTH RELATED
DETAILS.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BOULDER,
COLORADO:
Section 1. Section 5-3-7 is amended to read as follows:
5-3-7. - Aggressive Begging Prohibited.
(a) No person shall beg or solicit aggressively for a gift of money or any thing of value on any
public street, sidewalk, way, mall, park, building, or other public property or on any private
property open to the public while in close proximity to the individual addressed. Aggressive
begging means begging or soliciting accompanied by or followed immediately by one or
more of the following:
(1) Conduct that is intimidating, threatening, coercive, or obscene and that causes the
person addressed to reasonably fear for his or her safetyRepeated requests after a refusal
by the individual addressed; or
(2) Blocking the passage of the individual addressed;
(23) Addressing fighting words to the individual addressed.; or
(4) Touching the individual addressed.
(b) If one person acts in concert with another to beg aggressively, such that one person begs or
solicits, and another commits one or more of the additional acts constituting aggressive
begging, both have committed the crime.
(c) If one person begs or solicits, and a second person, who knew or reasonably should have
known of a refusal by the individual addressed, begs or solicits from the same individual
within one minute, the second person has committed the crime.
Section 2. Section 5-3-12 is repealed.
Section 3. The city council finds this ordinance is necessary for the immediate
preservation of public peace, health, safety, and property justifying the adoption of this ordinance
as an emergency measure. Passage of this ordinance immediately is necessary to comply with a
recent Federal District Court ruling. This ordinance shall become effective immediately.
Attachment A - Proposed Ordinance
K:\POAD\o-Panhandling Ordinance-.docx
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Section 4. This ordinance is necessary to protect the public health, safety, and welfare of
the residents of the city, and covers matters of local concern.
Section 5. The City Council deems it appropriate that this ordinance be published by title
only and orders that copies of this ordinance be made available in the office of the city clerk for
public inspection and acquisition.
INTRODUCED, READ ON FIRST READING, ORDERED PUBLISHED BY TITLE
ONLY AND ADOPTED BY EMERGENCY this 6th day of October, 2015.
______________________________
Mayor
Attest:
______________________________
City Clerk
Attachment A - Proposed Ordinance
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-00809-CMA-KLM
DEBRA BROWNE,
MARY JANE SANCHEZ,
CYNTHIA STEWART, and
HUMANISTS DOING GOOD,
Plaintiffs,
and
GREENPEACE, INC.,
Plaintiff-Intervenor,
v.
CITY OF GRAND JUNCTION, COLORADO,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS’
MOTION FOR LEAVE TO FILE A SECOND SUPPLEMENTAL COMPLAINT, AND
DENYING DEFENDANT’S MOTION TO STAY THE COURT’S CONSIDERATION OF
THE CROSS-MOTIONS FOR SUMMARY JUDGMENT
This case involves a constitutional challenge to a municipal ordinance that
regulates panhandling. Currently before the Court are cross-motions for summary
judgment. Defendant City of Grand Junction (“Grand Junction” or “the City”) filed its
motion for summary judgment on February 17, 2015. (Doc. # 84.) That same day,
Plaintiffs Debra Browne, Mary Jane Sanchez, Humanists Doing Good, and Eric
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
Niederkruger1, and Plaintiff-Intervenor Greenpeace, Inc. (collectively “Plaintiffs”) filed
their motion for summary judgment. (Doc. # 85.) Also before the Court is Plaintiffs’
Motion for Leave to File a Second Supplemental Complaint, which was filed on
November 21, 2014 (Doc. # 66), and Grand Junction’s Motion to Stay the Court’s
Consideration of the Pending Cross-Motions for Summary Judgment for Sixty Days,
which was filed on September 22, 2015 (Doc. # 110). For the reasons that follow, the
Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motion for Summary
Judgement (Doc. # 85), GRANTS IN PART AND DENIES IN PART Grand Junction’s
Motion for Summary Judgment (Doc. # 84), DENIES Plaintiffs’ Motion for Leave to File
a Second Supplemental Complaint (Doc. # 66), and DENIES Grand Junction’s Motion
to Stay the Court’s Consideration of the Pending Cross-Motions for Summary Judgment
for Sixty Days (Doc. # 110).
I. FACTUAL AND PROCEUDRAL BACKGROUND
A. Ordinance No. 4618
On February 19, 2014, Grand Junction adopted Ordinance No. 4618, entitled “An
Ordinance Prohibiting Activities Relating to Panhandling.” (Doc. # 1-1.) Ordinance No.
4618 amended Title 9 of the Grand Junction Municipal Code to include a new Chapter
5, entitled “Prohibited Activities.” Section 9.05.020 of Ordinance No. 4618, which set
forth the defined terms, stated, “Panhandle / panhandling shall mean to knowingly
approach, accost or stop another person in a public place and solicit that person,
whether by spoken words, bodily gestures, written signs or other means, for money,
employment or other thing of value.” (Doc. # 1-1 at 2-3.) Section 9.05.040 of
Ordinance No. 4618, entitled “General panhandling and solicitation,” stated:
1 Mr. Niederkruger was dismissed from this action June 8, 2015. (Doc. # 102.)
2
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
It shall be unlawful for any person to panhandle
(a) One-half (1/2) hour after sunset to one-half (1/2) hour
before sunrise;
(b) If the person panhandling knowingly engages in conduct
toward the person solicited that is intimidating,
threatening, coercive or obscene and that causes the
person solicited to reasonably fear for his or her safety;
(c) If the person panhandling directs fighting words to the
person solicited that are likely to create an imminent
breach of the peace;
(d) If the person panhandling knowingly touches or grabs the
person solicited;
(e) If the person panhandling knowingly continues to request
the person solicited for money or other thing of value
after the person solicited has refused the panhandler’s
request;
(f) If the person panhandling knowingly solicits an at-risk
person;
(g) In such a manner that the person panhandling obstructs
a sidewalk, doorway, entryway, or other passage way in
a public place used by pedestrians or obstructs the
passage of the person solicited or requires the person
solicited to take evasive action to avoid physical contact
with the person panhandling or with any other person;
(h) Within one hundred (100) feet of an automatic teller
machine or of a bus stop;
(i) On a public bus;
(j) In a parking garage, parking lot or other parking facility;
(k) When the person solicited is present within the patio or
sidewalk serving area of a retail business establishment
that serves food and/or drink, or waiting in line to enter a
building, an event, a retail business establishment, or a
theater;
(l) On or within one hundred (100) feet of any school or
school grounds.
3
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
(Doc. # 1-1 at 3.)
Ordinance No. 4618 also contained section 9.05.050, entitled “Panhandling and
soliciting on or near public streets and highways,” which stated:
It shall be unlawful for any person to panhandle or to solicit
employment, business contributions or sales of any kind, or
to collect money for the same, directly from the occupant of
any vehicle traveling upon any public street or highway
when:
(a) Such panhandling, solicitation or collection involves
the person performing the activity to enter onto the
traveled portion of a public street or highway to
complete the transaction, including, without limitation,
entering onto bike lanes, street gutters or vehicle
parking areas; or
(b) The person performing the activity is located such that
vehicles cannot move into a legal parking area to
safely complete the transaction.
Notwithstanding the foregoing in this Section 9.05.050, it
shall be unlawful for any person to panhandle or to solicit or
attempt to solicit employment, business, or contributions of
any kind directly from the occupant of any vehicle on any
highway included in the interstate or state highway system,
including any entrance to or exit from such highway.
(Doc. # 1-1 at 4.)
Section 9.05.060, entitled “Enforcement and penalties,” stated that “[v]iolation of
any provision of this Chapter shall constitute a misdemeanor.” (Doc. # 1-1 at 4.)
Section 9.05.030 stated that Ordinance No. 4618 was to go into effect “thirty (30) days
following publication.” (Doc. # 1-1 at 3.) Ordinance No. 4618 was published on
February 21, 2014, and, therefore, was to go into effect on March 23, 2014.
4
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
B. Plaintiffs’ Complaint and Plaintiff Stewart’s Supplemental Complaint
Before Ordinance No. 4618 went into effect, Plaintiffs Debra Browne, Mary Jane
Sanchez, Cynthia Stewart, Steve Kilcrease 2, Humanists Doing Good, and Eric
Niederkruger filed suit on March 18, 2014. (Doc. # 1.) The complaint states that
Plaintiff Debra Browne, a resident of Palisade, Colorado, and Plaintiffs Mary Jane
Sanchez and Cynthia Stewart, residents of Grand Junction, are “needy and engage[ ] in
peaceful, nonthreatening solicitation in Grand Junction in a manner and in situations
that violate the Ordinance.” (Doc. # 1 at 3.) The complaint also states that Plaintiff
Humanists Doing Good “is a non-profit corporation that carries out peaceful,
nonthreatening fundraising activities in Grand Junction in a manner and in situations
that violate the Ordinance.” (Doc. # 1 at 3.) Plaintiffs explicitly state in their complaint
that they challenge subsections (a), (e), (f), and (h) through (l) of section 9.05.030, and
that they do not challenge subsections (b), (c), (d), and (g). (Doc. # 1 at 6.) Plaintiffs
also challenge the final sentence of section 9.05.050, but they do not challenge
subsections (a) and (b) of section 9.05.050. (Doc. # 1 at 6.)
In their first claim for relief, Plaintiffs assert a facial challenge to the disputed
subsections of section 9.05.050 of Ordinance No. 4618 on constitutional grounds,
alleging that “[t]he challenged Ordinance unconstitutionally infringes or imminently
threatens to infringe the freedom of Plaintiffs to fully exercise their First Amendment
rights, including their rights of freedom of speech and freedom of expression, in violation
2 Mr. Kilcrease was voluntarily dismissed with prejudice from this action on January 9,
2015. (Doc. # 72.)
5
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
of the First Amendment.” (Doc. # 1 at 14.) In their fifth claim for relief 3, Plaintiffs allege
that “[t]he Ordinance unconstitutionally infringes or imminently threatens to infringe the
freedom of Plaintiffs to fully exercise their rights of freedom of speech and freedom of
expression, in violation of Article II, Section 10 of the Colorado Constitution.” (Doc. # 1
at 17.)
In their second and sixth claims for relief, Plaintiffs allege that “[t]he Ordinance
establishes classifications that discriminate against Plaintiffs Browne, Stewart, Sanchez,
Kilcrease, and Humanists Doing Good solely on the basis of the content of the
communications that they wish to direct to the public” and that “[t]he discrimination
against Plaintiffs unconstitutionally burdens the exercise of fundamental rights,”
including “the rights of freedom of speech and expression as well as the fundamental
right to liberty.” (Doc. # 1 at 15, 18.) According to Plaintiffs, the classifications
established by Ordinance No. 4618 deny them the equal protection of the laws, in
violation of both the Fourteenth Amendment to the United States Constitution (second
claim for relief) (Doc. # 1 at 15) and the equal protection component of Article II, Section
25 of the Colorado Constitution (sixth claim for relief) (Doc. # 1 at 18).
In their third and seventh claims for relief, Plaintiffs allege that Ordinance No.
4618: (1) “fails to provide adequate notice that would enable the ordinary person to
understand what conduct it prohibits”; (2) “fails to establish adequate guidelines to
govern law enforcement”; and (3) “authorizes and encourages arbitrary and
discriminatory enforcement.” (Doc. # 1 at 16, 19) Thus, Plaintiffs assert, Ordinance No.
3 Plaintiffs’ fourth and eight claims for relief relate solely to Mr. Niederkruger. (Doc. # 1
at 16, 19-20.) Because Mr. Niederkruger has been dismissed from the action, these
claims no longer apply.
6
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
4618 is unconstitutionally vague, in violation of both the Fourteenth Amendment to the
United States Constitution (third claim for relief) (Doc. # 1 at 16, 19) and the Due
Process Clause of Article II, Section 25 of the Colorado Constitution (seventh claim for
relief) (Doc. # 1 at 19).
Plaintiffs seek a declaratory judgment holding that the challenged provisions of
Ordinance No. 4618 violate both the United States Constitution and the Colorado
Constitution. (Doc. # 1 at 20.) Plaintiffs also request injunctive relief prohibiting Grand
Junction from enforcing the challenged provisions of Ordinance No. 4618. (Doc. # 1 at
20.)
On August 11, 2014, Plaintiff Stewart filed an unopposed motion for leave to file
a supplemental complaint (Doc. # 60), which the Court granted on August 19, 2014.
(Doc. # 61.) In her supplemental complaint, Plaintiff Stewart “sets forth events that have
transpired since the filing of the original Complaint in this action on March 18, 2014.”
(Doc. # 62 at 1.) According to Plaintiff Stewart, “[t]hese events support a claim for
nominal damages,” which she seeks in addition to all Plaintiffs’ requests for declaratory
and injunctive relief. (Doc. # 62 at 1.)
C. Plaintiffs’ Motion for Preliminary Injunctive Relief
On March 19, 2014, Plaintiffs moved for a temporary restraining order and
preliminary injunction. (Doc. # 6.) During a March 21, 2014 hearing on Plaintiffs’
motion (Doc. # 16), United States District Judge Philip A. Brimmer 4 found that Plaintiffs
lacked standing to challenge the provisions of section 9.05.040 because Plaintiffs, who
did not allege in their complaint that they approach, accost, or stop anyone before
4 Plaintiffs’ motion was before Judge Brimmer pursuant to Federal Rule of Civil
Procedure 63.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
soliciting them, do not engage in “panhandling” as defined in section 9.05.020 and,
therefore, Plaintiffs did not have a credible fear of prosecution. (Doc. # 16 at 42.)
However, Judge Brimmer did find that Plaintiffs had standing to challenge section
9.05.050 and that they were entitled to an injunction prohibiting Grand Junction from
enforcing the last sentence of that section, which dealt with soliciting on public highways
and highway exits. (Doc. # 16 at 53.) Judge Brimmer issued a written order that
provided further analysis and support for his ruling from the bench. (Doc. # 15.)
Immediately following the hearing, Plaintiffs filed an emergency motion for
reconsideration of Judge Brimmer’s order (Doc. # 10), which included a supplemental
declaration from Plaintiff Stewart stating that “when [she] ask[s] people for money at the
bus stop[, she] sometimes walk[s] up to and approach[es] the person in a non-
aggressive way and ask[s] for the change that [she] need[s] to cover [her] bus fare.”
(Doc. # 10-1.) In a written order, Judge Brimmer denied Plaintiffs’ emergency motion
stating that the submission of Plaintiff Stewart’s supplemental declaration “d[id] not
provide a legitimate basis for reconsideration” because those facts were available for
presentation at the time of the original argument. (Doc. # 14 at 4.)
On March 27, 2014, the parties filed a joint motion to withdraw Plaintiffs’
preliminary injunction motion because “[t]he parties . . . reached an agreement which
obviates the need to hold a hearing or prepare briefing on the Plaintiffs’ PI Motion.”
(Doc. # 21 at 2.) The Chief of Police of Grand Junction, John Camper (“Chief Camper”),
issued an order to the police officers under his command to “not enforce Ordinance No.
4618 pending resolution of the claims subject to litigation in this civil action.” (Doc. # 21
8
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
at 2.) That same day, this Court granted the joint motion to withdraw Plaintiffs’ motion
for a preliminary injunction. (Doc. # 22.)
On March 31, 2014, Greenpeace, Inc., moved for leave to intervene as a plaintiff
in this action. (Doc. # 23.) Greenpeace is an “independent, fully member-driven non-
profit organization” that uses canvass operations to provide financial support to the
organization and educate the public about its work. (Doc. # 23 at 2.) Greenpeace’s
complaint in intervention echoes the same claims and requests for relief set forth in
Plaintiffs’ complaint. (Doc. # 23-2.)5
D. Ordinance No. 4627
On April 2, 2014, the Grand Junction City Council passed Ordinance No. 4627,
entitled “An Emergency Ordinance to Amend Ordinance No. 4618 Regulating
Panhandling Activities in Public Places.” (Doc. # 25-4.) Ordinance No. 4627 amended
the definition of “panhandle / panhandling” to include the phrase “without that person’s
consent” after “solicit that person,” so that the amended definition reads:
Panhandle / panhandling shall mean to knowingly approach,
accost or stop another person in a public place and solicit
that person without that person’s consent, whether by
spoken words, bodily gestures, written signs or other means,
for money, employment or other thing of value.
(Doc. # 25-4 at 4 (emphasis added to highlight the added language).) Ordinance No.
4627 also amended section 9.05.040, which sets forth the specific restrictions on
panhandling. Ordinance No. 4627 differs from Ordinance No. 4618 in that it: (1)
removed entirely the restriction on panhandling an “at-risk person”; (2) reduced from
5 On April 25, 2014, the Court granted Greenpeace’s motion to intervene. (Doc. # 35.)
Three days later, on April 28, 2014, Alexis Gallegos filed an unopposed motion for leave
to intervene as a plaintiff in this action. (Doc. # 37.) That motion was granted on April
29, 2014. (Doc. # 40.) On January 20, 2015, Ms. Gallegos was dismissed without
prejudice. (Doc. ## 76, 96.)
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
100 feet to 20 feet the area around an ATM or bus stop within which panhandling is
prohibited; (3) narrowed the prohibition on panhandling to “public parking garages”
specifically, as opposed to “parking garages” generally; and (4) removed entirely the
prohibition on panhandling on or within 100 feet of any school or school grounds. (Doc.
# 25-4 at 5.) Ordinance No. 4627 also removed the last sentence in section 9.05.050.
(Doc. # 25-4 at 6.) Pursuant to section 9.05.030, Ordinance No. 4627 took effect
“immediately upon passage” by the City Council. (Doc. # 25-4 at 5.) Grand Junction
planned to begin enforcement of Ordinance No. 4627 on April 14, 2014.6 (Doc. # 25-5
at 5.)
E. Grand Junction’s Motion to Dismiss
On May 19, 2014, Grand Junction filed a motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. # 46.) While this motion to
dismiss was pending, Plaintiffs filed their Motion for Leave to File a Second
Supplemental Complaint on November 21, 2014 (Doc. # 66), and both parties filed
cross-motions for summary judgment on February 17, 2015 (Doc. ## 84, 85).
On March 30, 2015, this Court granted in part and denied in part Grand
Junction’s motion to dismiss. (Doc. # 96.) Specifically, this Court granted Grand
Junction’s motion “insofar as it argues that Plaintiffs’ challenges to Ordinance 4618 are
moot and Plaintiffs lack standing to challenge the prohibition against solicitation on
buses.” (Doc. # 96 at 16.) Grand Junction had argued that Plaintiffs’ challenge to
Ordinance No. 4618 was moot because that ordinance had been replaced by Ordinance
No. 4627, and that Plaintiffs lacked standing to challenge the prohibition against
6 Based on the record before the Court, it does not appear that Grand Junction ever
enforced Ordinance No. 4627.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
solicitation on buses because none of them asserted that they had solicited, or planned
to solicit, donations on buses. This Court denied Grand Junction’s motion to dismiss
“insofar as it argues that Plaintiffs lack standing to challenge the prohibition against
soliciting people within sidewalk serving areas and waiting in line.” (Doc. # 96 at 16.)
This Court reserved ruling on the balance of Grand Junction’s arguments. (Doc. # 96 at
16.) On June 8, 2015, this Court denied the remainder of Grand Junction’s motion to
dismiss, concluding that Plaintiffs sufficiently stated First Amendment, equal protection,
and due process claims. (Doc. # 102.)
F. Grand Junction’s Motion for Summary Judgment
Grand Junction’s motion for summary judgment presents four arguments: (1) this
Court lacks subject-matter jurisdiction over the claims because Plaintiffs lack standing
and because some of Plaintiffs’ claims are moot (Doc. # 84 at 14-19); (2) Ordinance No.
4627 does not violate Plaintiffs’ free speech rights (Doc. 84 at 19-31); (3) Plaintiffs’
equal protection claims fail (Doc. # 84 at 31-33); and (4) Plaintiffs’ due process
challenges fail (Doc. # 84 at 33-35).
Grand Junction argues that Plaintiffs lack standing—and, therefore, this Court
lacks subject-matter jurisdiction—because their conduct is not covered by Ordinance
No. 4627. (Doc. # 84 at 15.) This argument is based on Grand Junction’s assertion
that Plaintiffs “all admit that the people who engage with them do so voluntarily of their
own free will” and that Plaintiffs Browne and Greenpeace “admit they do not approach,
accost, or stop anyone.” (Doc. # 84 at 15.) According to Grand Junction, the
prohibitions of Ordinance No. 4627 do not reach Plaintiffs’ conduct because the
ordinance explicitly defines “panhandling” as “knowingly approach[ing], accosting[ing],
or stop[ping] another person” to solicit that person “without that person’s consent.”
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
(Doc. # 84 at 16.) Thus, under Grand Junction’s reading of Ordinance No. 4627, the
conduct engaged in by Plaintiffs is not panhandling and, therefore, not limited in any
way by Ordinance No. 4627.
Grand Junction argues that this Court also lacks subject-matter jurisdiction
because Plaintiffs’ challenges to Ordinance No. 4618 “were rendered moot by the
passage of Ordinance No. 4627.” (Doc. # 84 at 17.) Specifically, Grand Junction notes
that Ordinance No. 4627 removed the prohibition on panhandling on a highway or
highway exit ramp, removed the restriction on panhandling “at-risk” individuals, and
removed the prohibition on panhandling on or within 100 feet of any school or school
grounds. (Doc. # 84 at 18.) Grand Junction asserts that “[t]here is no evidence that [it]
intends to reenact those provisions of the Ordinance.” (Doc. # 84 at 18.)
Grand Junction also argues that it is entitled to summary judgment because the
undisputed material facts demonstrate that Ordinance No. 4627 does not violate either
the First Amendment to the United States Constitution or Article II, Section 10 of the
Colorado Constitution. (Doc. # 84 at 19.) Grand Junction asserts that Ordinance No.
4627 is a “content-neutral time, plane, and manner restriction” and, therefore,
intermediate scrutiny applies. (Doc. # 84 at 19.) According to Grand Junction,
Ordinance No. 4627 “satisfies intermediate scrutiny because it is narrowly tailored to a
legitimate government interest and leaves open ample alternative means of
communication.” (Doc. # 84 at 19.) Grand Junction’s motion for summary judgment
does not address whether Ordinance No. 4627 satisfies strict scrutiny.
Grand Junction argues that it is also entitled to summary judgment on Plaintiffs’
equal protection claims because Plaintiffs “are not members of a suspect class and the
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
Ordinance does not impinge their fundamental rights.” (Doc. # 84 at 31.) In support of
its position, Grand Junction asserts that the United States Supreme Court “does not
recognize a suspect classification based on wealth, or lack thereof.” (Doc. # 84 at 31.)
Therefore, according to Grand Junction, rational basis review applies and the
undisputed facts demonstrate that Ordinance No. 4627 is rationally related to a
legitimate government purposes. (Doc. # 84 at 32.)
Lastly, Grand Junction argues that Plaintiffs’ due process claims fail because
Ordinance No. 4627 is not impermissibly vague. (Doc. # 84 at 34.) In support of this
argument, Grand Junction points out that Ordinance No. 4627: (1) “expressly defines
what constitutes ‘panhandling,’ ‘knowingly,’ ‘obscene,’ and ‘obstruct’”; (2) “sets forth in
detail the precise places, times, and manners that [limit] a person’s conduct”; and (3)
“exempts inadvertent violations (because of the knowledge requirement) and exempts
consensual encounters.” (Doc. # 84 at 34.) Therefore, according to Grand Junction,
Ordinance No. 4627 “provides fair notice of the conduct it proscribes and is not subject
to arbitrary application.” (Doc. # 84 at 35.)
G. Plaintiffs’ Motion for Summary Judgment
In their motion for summary judgment, Plaintiffs’ argue that they are entitled to
summary judgment because the undisputed facts show that Ordinance No. 4627
violates their freedom of speech as protected by the First Amendment to the United
States Constitution and Article II, Section 10 of the Colorado Constitution. (Doc. # 85 at
18.) In support of their position, Plaintiffs argue that Ordinance No. 4627 is a content-
based restriction and, therefore, presumptively unconstitutional and subject to strict
scrutiny. (Doc. # 85 at 19.) Plaintiffs argue that each of the challenged provisions of
Ordinance No. 4627 cannot survive strict scrutiny. (Doc. # 85 at 28-33.)
13
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
Plaintiffs argue that they are entitled to summary judgment on their equal
protection claims because “[t]he elements [of an equal protection claim] are met by
establishing that the ordinance discriminates on the basis of content,” which Plaintiffs
assert they have done in discussing their free speech claims. (Doc. # 85 at 36.)
Plaintiffs argue that they are entitled to summary judgment on their due process
claims because the undisputed facts demonstrate that Ordinance No. 4627 is
unconstitutionally vague. (Doc. # 85 at 37.) In support of this argument, Plaintiffs
assert that Ordinance No. 4627 is vague because: (1) it is unclear whether the
ordinance prohibits “passive” panhandling (i.e., soliciting by displaying a sign) (Doc. #
85 at 37-39); and (2) it is unclear whether the consent provision requires the solicitor to
obtain consent before soliciting someone (Doc. # 85 at 39). Thus, Plaintiffs argue,
Ordinance No. 4627 is not drafted with sufficient clarity to enable the ordinary person to
understand what conduct is prohibited, and Ordinance No. 4627 fails to provide law
enforcement with adequate guidance in order to prevent arbitrary and discriminatory
enforcement. (Doc. # 85 at 37.)
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is essential to the proper disposition
of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d
1226, 1231-32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such that it
might lead a reasonable jury to return a verdict for the nonmoving party. Allen v.
Muskogee, Okla., 119 F.3d 837, 839 (10th Cir. 1997). When considering a motion for
14
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
summary judgment, the court must “construe the factual record and reasonable
inferences therefrom in the light most favorable to the nonmovant.” Id. at 39-40.
Where, as here, the parties file cross-motions for summary judgment, each
motion is considered separately and “the denial of one does not require the grant of
another.” Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).
However, when faced with cross summary judgment motions, the court is “entitled to
assume that no evidence needs to be considered other than that filed by the parties.”
James Barlow Family Ltd. P’ship v. David Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.
1997).
B. Freedom of Speech Claims
The First Amendment to the United States Constitution unequivocally states that
“Congress shall make no law . . . abridging the freedom of speech.” U.S. CONST.
amend. I.7 It is no exaggeration to say that the First Amendment is the bedrock of
American democracy. See, e.g., Speiser v. Randall, 357 U.S. 513, 530 (1958) (Black,
J., concurring) (stating that the freedoms secured by the First Amendment “are
absolutely indispensable for the preservation of a free society in which government is
based upon the consent of an informed citizenry and is dedicated to the protection of
the rights of all”); Palko v. Connecticut, 302 U.S. 319, 327 (1937) (stating that freedom
of speech is “the matrix, the indispensable condition, of nearly every other form of
freedom”), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969).
Because of the First Amendment, “a government, including a municipal
government vested with state authority, ‘has no power to restrict expression because of
7 The First Amendment applies to the States through the Due Process Clause of the
Fourteenth Amendment. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,
Inc., 425 U.S. 748, 749 n.1 (1976).
15
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
its message, its ideas, its subject matter, or its content.’” Reed v. Town of Gilbert, Ariz.,
135 S. Ct. 2218, 2226 (2015) (quoting Police Dept. of Chi. v. Mosley, 408 U.S. 92, 95
(1972)). For this reason, whenever a restriction is challenged on First Amendment
grounds, it must be determined at the outset whether that restriction is “content-based”
or “content-neutral.” A law or ordinance regulating speech is “content-based” if it
“applies to particular speech because of the topic discussed or the idea or message
expressed.” Id. at 2227. When deciding whether a challenged law or ordinance is
content-based, a court must “consider whether a regulation of speech ‘on its face’ draws
distinctions based on the message a speaker conveys.” Id.
A content-based restriction is presumptively unconstitutional and subject to strict
scrutiny. Id. at 2226. A facially content-based law must pass strict scrutiny “regardless
of the government’s benign motive, content-neutral justification, or lack of ‘animus
toward the idea contained’ in the regulated speech.” Id. at 2228 (quoting Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 429 (1993)). “[A]n innocuous justification cannot
transform a facially content-based law into one that is content neutral.” Id.
To withstand strict scrutiny, the law or ordinance must be “necessary to serve a
compelling state interest.” Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231
(1987). To demonstrate that a law or ordinance is necessary to serve a compelling
state interest, the government must show that the law or ordinance is the “least
restrictive means” of achieving that vital interest. Ashcroft v. ACLU, 542 U.S. 656, 666
(2004). The government bears the burden of demonstrating that a content-based
restriction passes strict scrutiny. Reed, 135 S. Ct. at 2231.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
“Only a law that is substantially overbroad may be invalidated on its face.” City of
Hous. v. Hill, 482 U.S. 451, 458 (1987) (citations omitted). Whether a restriction is
substantially overbroad depends primarily upon whether it reaches a substantial amount
of protected speech or conduct. Id. (citing Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494 (1982)).
1. Ordinance No. 4627 is a Content-Based Restriction on
Protected Speech
This Court determined in its prior order granting in part and denying in part Grand
Junction’s motion to dismiss that Ordinance No. 4627 is a content-based restriction on
protected speech. (Doc. # 102 at 13.) The Court need not reevaluate that decision
here as that determination is now the law of the case. See, e.g., Arizona v. California,
460 U.S. 605, 618 (1983) (“As most commonly defined, the [law of the case] doctrine
posits that when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages of the same case.”). Therefore, the Court
applies strict scrutiny to Ordinance No. 4627 when considering the parties’ cross
motions for summary judgment.
Before beginning its analysis, the Court notes that the parties filed their summary
judgment motions prior to the Court issuing its ruling on Grand Junction’s motion to
dismiss, in which it determined that Ordinance No. 4627 is a content-based restriction.
Therefore, one of the issues addressed in each of the summary judgment motions is the
level of judicial scrutiny that should be applied to Ordinance No. 4627. In their summary
judgment motion, Plaintiffs correctly argue that strict scrutiny applies because
Ordinance No. 4627 is a content-based restriction. (Doc. # 85 at 18.) Grand Junction,
on the other hand, takes the position in its summary judgment motion that intermediate
17
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
scrutiny applies because Ordinance No. 4627 is a content-neutral time, place, and
manner restriction. (Doc. # 84 at 19.) In none of its briefing does Grand Junction argue
in the alternative that, even if strict scrutiny applies, Ordinance No. 4627 withstands that
more exacting standard of judicial review. In addition, following the Court’s issuance of
its ruling in which it stated that strict scrutiny applies, Grand Junction did not request
permission to file a supplemental brief in which it addressed whether Ordinance No.
4627 meets strict scrutiny. Nevertheless, the Courts believes that it is able to rule on
the parties’ cross motions for summary judgment, despite the fact that Grand Junction’s
briefing does not apply the correct level of scrutiny. The Court believes that additional
briefing from Grand Junction would not alter the Court’s ultimate conclusion.
In addition, the Court notes that a little more than a week after the issuance of its
order on Grand Junction’s motion to dismiss, the United States Supreme Court issued
its ruling in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015). In Reed, the
Supreme Court held that a town’s “comprehensive code governing the manner in which
people may display outdoor signs” amounted to “content-based regulations of speech
that cannot survive strict scrutiny.” Reed, 135 S. Ct. at 2224. Although the facts of
Reed did not involve municipal regulation of panhandling, the case is significant to the
matter at hand—and First Amendment jurisprudence more generally—because it
provides clarification as to how lower courts should go about determining whether a
restriction on protected speech is content-based or content-neutral.
In Reed, the Ninth Circuit Court of Appeals had concluded that the sign code was
content neutral because the town “‘did not adopt its regulation of speech [based on]
disagree[ment] with the message conveyed,’ and its justifications for regulating
18
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
temporary directional signs were ‘unrelated to the content of the sign.’” Id. at 2227
(quoting Reed v. Town of Gilbert, Ariz., 707 F.3d 1057, 1071-72 (9th Cir. 2013))
(alterations in original). The Supreme Court reversed finding that the Ninth Circuit had
erred because its analysis “skip[ped] the crucial first step in the content-neutrality
analysis: determining whether the law is content neutral on its face.” Id. at 2228.
Importantly, the Supreme Court stated that “[a] law that is content based on its face is
subject to strict scrutiny regardless of the government’s benign motive, content-neutral
justification, or lack of ‘animus toward the idea contained’ in the regulated speech.” Id.
(quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). Thus, Reed
instructs that “whether a law is content neutral on its face” must be considered “before
turning to the law’s justification or purpose.” Id. (emphasis in original).
The Supreme Court also used Reed to clarify the distinction between “viewpoint
discrimination” and “content discrimination.” Viewpoint discrimination, which is “the
regulation of speech based on ‘the specific motivating ideology or the opinion or
perspective of the speaker,’” is simply a “‘more blatant’ and ‘egregious form of content
discrimination.’” Id. at 2230 (quoting Rosenberg v. Rector and Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995)). In other words, viewpoint discrimination prohibits speech
specifically based on the particular point of view of the speaker. Content discrimination,
on the other hand, prohibits speech based on the broad topic being discussed. For
example, a town ordinance generally prohibiting all speech about war would be content
discrimination, whereas a town ordinance specifically prohibiting only anti-war speech
would be viewpoint discrimination. Although viewpoint discrimination is more “blatant”
and “egregious” than content discrimination, the Supreme Court in Reed noted that
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
content discrimination is also prohibited by the First Amendment. Id. (“[I]t is well
established that ‘[t]he First Amendment’s hostility to content-based regulation extends
not only to restrictions on particular viewpoints, but also to prohibition of public
discussion of an entire topic.’”) (quoting Consol. Edison Co. of N.Y. v. Public Serv.
Comm’n of N.Y., 447 U.S. 530, 537 (1980)) (alteration in original). Thus, Reed makes
clear that “a speech regulation targeted at specific subject matter is content based even
if it does not discriminate among viewpoints within that subject matter.” Id.8
According to Reed, “[g]overnment regulation of speech is content based if a law
applies to particular speech because of the topic discussed or the idea or message
expressed.” Reed, 135 S. Ct. at 2227. In Reed, the Supreme Court instructed that
when a court is determining whether a regulation of speech is facially content based, it
must consider whether the regulation “‘on its face’ draws distinctions based on the
message a speaker conveys.” Id. The Supreme Court further instructed that while
“[s]ome facial distinctions based on a message are obvious, defining regulated speech
by particular subject matter, and others are more subtle, defining regulated speech by
its function or purpose.” Id. Nevertheless, “[b]oth are distinctions drawn based on the
message a speaker conveys, and, therefore, are subject to strict scrutiny.” Id.
The Court engages in this extended discussion of Reed because it confirms the
correctness of this Court’s prior conclusion that Ordinance No. 4627 is a content-based
speech restriction. The Court believes it is also important to briefly note two decisions
8 Applying this principle to an example more akin to the present matter, a law prohibiting
all solicitation speech in a public forum would be an example of content discrimination.
On the other hand, a law prohibiting solicitation for only environmental causes would be
an example of viewpoint discrimination. Both types of laws are prohibited by the First
Amendment.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
that were issued after Reed in cases similarly dealing with municipal panhandling
regulations and cited by the parties in this matter.
In a June 19, 2014 decision in Thayer v. City of Worcester, Massachusetts, 755
F.3d 60 (1st Cir. 2014), the First Circuit Court of Appeals had concluded that a
municipal panhandling ordinance was content neutral because it was “not designed to
suppress messages expressed by panhandlers, Girl Scouts, the Salvation Army,
campaign politicians, or anyone else subject to restriction.” Thayer, 755 F.3d at 71. In
its opinion, written by retired Associate Justice Souter, the First Circuit focused
exclusively on the city’s intent and justification for passing the ordinance. Id. at 67 (“In
determining whether a particular regulation is content-neutral, the principal enquiry is
‘whether the government has adopted a regulation of speech because of disagreement
with the message it conveys.’”). The First Circuit affirmed the District Court’s denial of
the plaintiffs’ motion for a preliminary injunction. Id. at 78.
On June 29, 2015, a week and a half after issuing its decision in Reed, the
United States Supreme Court granted the Thayer plaintiffs’ petition for a writ of
certiorari, vacated the judgment of the First Circuit, and remanded the case “for further
consideration in light of [Reed].” Thayer v. City of Worcester, Mass., 135 S. Ct. 2887
(2015). To date, the First Circuit has not yet issued its opinion on remand.
Like the First Circuit’s first opinion in Thayer, on September 25, 2014, the
Seventh Circuit Court of Appeals concluded that a city ordinance regulating panhandling
was content neutral—though it admitted that it did not “profess certainty about [that]
conclusion.” Norton v. City of Springfield, Ill., 768 F.3d 713, 717 (7th Cir. 2014). In
reaching its decision, the Seventh Circuit focused on the fact that “[t]he ordinance is
21
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
indifferent to the solicitor’s stated reason for seeking money, or whether the requester
states any reason at all.” Id. In addition, the Seventh Circuit pointed to the fact that
“what activates the prohibition [in the ordinance] is where a person says something (in
the ‘downtown historic district’) rather than what position a person takes.” Id. Thus, the
Seventh Circuit evaluated the ordinance “by the standard for time, place, and manner
restrictions” and found that the ordinance passed muster under intermediate scrutiny.
The plaintiffs in Norton filed a petition for rehearing, which the Seventh Circuit
deferred consideration of until the Supreme Court decided Reed. Norton, --- Fed. Appx.
---, Case No. 13-cv-3581, 2015 WL 4714073, at *1 (7th Cir. Aug. 7, 2015). After Reed
was decided, the Seventh Circuit applied it to the ordinance at issue and found that the
ordinance “regulates ‘because of the topic discussed.’” Id. (quoting Reed, 135 S. Ct. at
2227). Therefore, according to the Seventh Circuit, the ordinance is “a form of content
discrimination” under Reed. Id. at *2. The Seventh Circuit remanded the case to the
district court with the instruction that it enter an injunction prohibiting enforcement of the
ordinance. Id.
Although only persuasive, the Court believes that the outcomes in Thayer and
Norton provide yet additional support for the correctness of its prior conclusion that
Ordinance No. 4627 is a content-based speech restriction.
2. The Challenged Provisions of Ordinance No. 4627 Do Not
Withstand Strict Scrutiny
Having concluded that Ordinance No. 4627 is a content-based restriction on
protected speech, the Court presumes that the ordinance is unconstitutional, and it must
be struck down unless Grand Junction can demonstrate that it is “necessary to serve a
compelling state interest.” Ark. Writers’ Project, 481 U.S. at 231.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
As stated above in section II.B.1, Grand Junction takes the position in all of its
briefing that Ordinance No. 4627 is a content-neutral time, place, and manner restriction
that is subject to intermediate scrutiny. Despite the fact that Grand Junction’s briefing
addresses the incorrect level of scrutiny, the Court finds that, even if it had argued to the
correct standard, Grand Junction would be unable to demonstrate that Ordinance No.
4627 is necessary to serve a compelling state interest. Therefore, the challenged
provisions of Ordinance No. 4627 are unconstitutional under the First Amendment and
cannot be enforced.
In its brief in support of its motion for summary judgment, Grand Junction argues
that there is a “close fit” between Ordinance No. 4627 and “the harm intended to be
regulated.” (Doc. # 84 at 25.) According to Grand Junction, the harm that is intended to
be regulated is “aggressive behavior in connection with certain solicitation activities.”
(Doc. # 84 at 25.) As proof of this alleged aggressive solicitation, Grand Junction cites
the deposition testimony of Chief Camper and Grand Junction City Manager Richard
Englehart (“City Manager Englehart”). (Doc. # 84 at 25.)
During his deposition, Chief Camper stated that, generally speaking, Grand
Junction “had seen an increase or had become aware of an increase in more reports of
aggressive panhandling.” (Doc. # 84-1 at 17.) Chief Camper then discussed two
specific examples. First, Chief Camper described how, following an annual conference
of chiefs of police held in Grand Junction, he was “approached on at least three
occasions by either chiefs or their spouses indicating that they had been aggressively
panhandled near or at the Convention Center.” (Doc. # 84-1 at 19.) Chief Camper
stated that the panhandlers in this instance were allegedly “very persistent and, at least
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
in one case, . . . [verbally] abusive towards the spouse of one of the chiefs.” (Doc. # 84-
1 at 19.) Second, Chief Camper discussed a specific instance in which a county
employee was alleged to have been “pretty aggressively harassed by vagrants near the
4th/Main Wells Fargo at about noon.”
She was well dressed, walking towards the bank, when the
subjects approached her for money. When she refused,
they became loud and aggressive and made comments
about the police taking away their tents and having nowhere
to stay. She was pretty intimidated . . . .
(Doc. # 84-1 at 19.) Chief Camper also recalled, generally, “some discussion about the
[restaurant] patios, that [Grand Junction] had had increased complaints of that, and also
when people are waiting to enter a line to go into some event or they’re sort of in a
queue to get into an event or theater.” (Doc. 84-1 at 17.)
During his deposition, City Manager Englehart stated that he was told about
“some challenges downtown with the restauranteurs and that people, while they were
having lunch, were being approached aggressively to give money.” (Doc. # 84-1 at 22.)
City Manager Englehart also discussed two instances during which he, personally, was
“aggressively panhandled”:
I pulled up to an intersection, and a gentleman that was
walking alongside my car—I have a convertible—yelled at
me, asked me if I had any money. And I said, I’m sorry, I
don’t. He walked out next to my car, leaned over the top,
and said, Come on, Dude. You drive a car like this, you’ve
got money. Give me any money that you may have. I said,
I’m sorry, sir. I don’t have any money. Now he’s out in the
traffic lane. He sees the change in my cup-holders. He
says, Well, you’ve got money right there. And I said, I’m
sorry, sir, you are going to need to leave. And he had a few
choice words and walked off.
. . .
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
I was pulling money out of a bank and a gentleman stood
there and waited until I finished. He says, Can you spare
some of that money you just pulled out? And I said, No, sir.
He said, All right, thank you, and he walked off. Those are
my personal experiences.
(Doc. # 84-1 at 23.)
Grand Junction argues that Ordinance No. 4627 is narrowly tailored because it
“only addresses conduct in certain limited zones and at limited times” and it “does not
sweep in any more conduct than is necessary to address the City’s legitimate interest in
promoting public safety.” (Doc. # 84 at 25.) The Court does not question that “public
safety” is a compelling governmental interest. See, e.g., Schenck v. Pro-Choice
Network of W. N.Y., 519 U.S. 357, 375 (1997) (discussing “public safety and order” as a
valid governmental interest). However, Grand Junction cannot demonstrate that the
challenged provisions of Ordinance No. 4627 are necessary to serve that interest.
Simply put, the challenged portions of Ordinance No. 4627 are over-inclusive
because they prohibit protected speech that poses no threat to public safety. For
example, subsection (a) of section 9.05.040 of Ordinance No. 4627 prohibits
panhandling “[o]ne-half (1/2) hour after sunset to one-half (1/2) hour before sunrise.”
(Doc. # 25-4 at 5.) Grand Junction has not demonstrated that this prohibition on
protected speech is necessary for public safety. None of the alleged instances of
“aggressive panhandling” —the stated impetus for Ordinance No. 4627—occurred at
night. In fact, Chief Camper himself stated that they “don’t see a lot of” nighttime
panhandling in Grand Junction. (Doc. # 86-2 at 23.) There is no indication that
panhandling at night—no matter the location in Grand Junction—is inherently
dangerous or threatening to the public. Therefore, Grand Junction has not shown that a
blanket prohibition on panhandling at night is necessary to advance public safety.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
Subsection (e) of section 9.05.040 of Ordinance No. 4627 prohibits panhandling
if “[t]he person panhandling knowingly continues to request the person solicited for
money or other thing of value after the person solicited has refused the panhandler’s
initial request.” In one of the examples of “aggressive panhandling” discussed by Chief
Camper, the panhandlers were allegedly “very persistent.” (Doc. # 84-1 at 19.) The
Court interprets this to mean that the panhandlers requested money or a thing of value
more than once. In addition, in the encounter described by City Manager Englehart that
took place when he was driving his car, it appears that he may have been solicited more
than once. (Doc. # 84-1 at 23.) However, in neither instance does it appear that the
safety of the person being solicited was threatened simply because the person doing
the soliciting had made a second request after the initial request was refused. Grand
Junction has not shown—and the Court does not believe—that a repeated request for
money or other thing of value necessarily threatens public safety. Thus, a ban on
multiple requests is not necessary to serve a compelling governmental interest.
Subsection (g) of section 9.05.040 of Ordinance No. 4627 prohibits panhandling
“[w]ithin twenty (20) feet of an automatic teller machine or of a bus stop.” (Doc. # 25-4
at 5.) During his deposition, City Manager Englehart described an instance in which he
personally was solicited after obtaining money from an ATM. (Doc. # 84-1 at 23.) City
Manager Englehart stated that after he denied the request for money, the requester
said, “All right, thank you,” and walked away. (Doc. # 84-1 at 23.) The Court does not
see how that interaction in particular threatened City Manager Englehart’s safety or,
more generally, how any request for money, simply because it occurs within 20 feet of
an ATM (whether or not the person solicited used or planned to use the ATM),
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
constitutes a threat to public safety. W ith regard to the ban on panhandling within 20
feet of a bus stop, none of the specifically identified instances of “aggressive
panhandling” identified by Grand Junction occurred within 20 feet of a bus stop. Grand
Junction has not shown—and the Court does not believe—that a request for money,
simply because it occurs within 20 feet of a bus stop, threatens public safety.
Therefore, the ban on panhandling with 20 feet of an ATM or bus stop is not necessary
to serve a compelling government interest.
Subsection (i) of section 9.05.040 of Ordinance No. 4627 prohibits panhandling
“[i]n a public parking garage, parking lot or other parking facility.” (Doc. # 25-4 at 5.)
None of the specifically identified instances of “aggressive panhandling” identified by
Grand Junction occurred in a public parking garage, parking lot, or other parking facility.
Similar to the other prohibitions set forth in Ordinance No. 4627, Grand Junction has not
shown—and the Court does not believe—that a solicitation for money or other thing of
value is a threat to public safety simply because it takes place in a public parking
garage, parking lot, or other parking facility. Therefore, the ban on panhandling in these
areas is not necessary to serve a compelling government interest.
Lastly, subsection (j) of section 9.05.040 of Ordinance No. 4627 prohibits
panhandling “[w]hen the person solicited is present within the patio or sidewalk serving
area of a retail business establishment that serves food and/or drink, or waiting in line to
enter a building, an event, a retail business, or a theater.” (Doc. # 25-4 at 5.) None of
the specific instances of “aggressive panhandling” identified by either Chief Camper or
City Manager Englehart took place while the person solicited was either within the patio
or sidewalk serving area of a restaurant, café, or bar, or waiting in line to enter a
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
building, an event, a retail business, or a theater. Nevertheless, like all of the other
challenged prohibitions, Grand Junction has not shown—and the Court does not
believe—that the panhandling of an individual in the areas identified in subsection (j),
without more, constitutes a threat to public safety. Therefore, the ban on panhandling
individuals in the locations specified in subsection (j) is not necessary to serve a
compelling government interest.
The Court notes that certain behavior that may be engaged in by solicitors when
soliciting could threaten public safety. For example, the solicitor may engage in conduct
that is intimidating, threatening, coercive, or obscene and that causes the person
solicited to reasonable fear for his or her safety. Such conduct, in fact, is expressly
prohibited by subsection (b) of section 9.05.040 of Ordinance No. 4627. Tellingly,
Plaintiffs do not challenge subsection (b). At times, threatening behavior may
accompany panhandling, but the correct solution is not to outlaw panhandling. The
focus must be on the threatening behavior. Thus, the problem in this case is that Grand
Junction has taken a sledgehammer to a problem that can and should be solved with a
scalpel. In attempting to combat what it sees as threatening behavior that endangers
public safety, Grand Junction has passed an ordinance that sweeps into its purview
non-threatening conduct that is constitutionally protected. Thus, the Court is compelled
to strike down subsections (a), (e), (g), (i), and (j) of section 9.05.040 of Ordinance No.
4627.9
9 The free speech protections afforded by Article II, Section 10 of the Colorado
Constitution is “of greater scope than that guaranteed by the First Amendment.” Bock v.
Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991). Therefore, “the level of scrutiny
required to safeguard the broader free speech protections afforded by Article II, Section
10 of the Colorado Constitution [is] necessarily more stringent than that associated with
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C. Equal Protection Claims
The parties’ cross-motions for summary judgment also address Plaintiffs’ claim
that the challenged provisions of Ordinance No. 4627 violate their right to the equal
protection of the laws under both the Fourteenth Amendment to the United States
Constitution and Article II, Section 25 of the Colorado Constitution. Plaintiffs only
argument in support of their equal protection claim is that “[t]he elements are met by
establishing that [Ordinance No. 4627] discriminates on the basis of content.” (Doc. #
85 at 36.) In support of this argument, Plaintiffs cite Police Department of Chicago v.
Mosley, 408 U.S. 92 (1972), and Speet v. Schuette, 889 F. Supp. 2d 969 (W.D. Mich.
2012), aff’d on other grounds, 726 F.3d 867 (6th Cir. 2013). Grand Junction, on the
other hand, argues that “Plaintiffs’ equal protection challenge fails because they are not
members of a suspect class and [Ordinance No. 4627] does not impinge their
fundamental rights.” (Doc. # 84 at 31.) The Court finds that neither party’s analysis
provides much insight.
Section 1 of the Fourteenth Amendment provides that “[n]o state shall . . . deny
to any person within its jurisdiction the equal protection of the laws.” U.S. CONST.
amend. XIV, § 1. In other words, the government may not treat any person or class of
people differently than any other similarly-situated person or class of people without
providing adequate justification. The level of scrutiny with which a court reviews a law
challenged on equal protection grounds (i.e., the strength of the justification that must
be provided by the government) depends upon the type of classification made by the
First Amendment analysis.” Denver Pub. Co. v. City of Aurora, 896 P.2d 306, 323
(Colo. 1995). Thus, because the challenged subsections of Ordinance No. 4627 cannot
withstand strict scrutiny as required by the First Amendment, they necessarily cannot
withstand the more stringent scrutiny required by Article II, Section 10 of the Colorado
Constitution.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
government or whether the classification affects a fundamental right. See, e.g., Clark v.
Jeter, 486 U.S. 456, 461 (1988) (“In considering whether state legislation violates the
Equal Protection Clause of the Fourteenth Amendment, . . . we apply different levels of
scrutiny to different types of classifications.”) “Classifications based on race or national
origin . . . and classifications affecting fundamental rights . . . are given the most
exacting scrutiny.” Id. (citations omitted).
In light of the Court’s conclusion that the challenged provisions of Ordinance No.
4627 are unconstitutional under the First Amendment, it is not necessary to decide
whether the challenged provisions are also unconstitutional under the Equal Protection
Clause of the Fourteenth Amendment because the outcome of the case will not be
affected.10 Nevertheless, for purposes of providing guidance to the parties and to
dispose of all of the claims on the merits, the Court will address Plaintiffs’ equal
protection claim.
The Court finds that the Equal Protection Clause is not applicable to the present
matter because Ordinance No. 4627 does not create classifications of individuals at
all—let alone classifications based on race or national origin, or classifications affecting
fundamental rights. Yes, Ordinance No. 4627 clearly affects the fundamental right of
free speech, but it affects the free speech right of every individual in Grand Junction.
The prohibitions on panhandling as set forth in Ordinance No. 4627 apply equally to all
persons within the city limits.
10 The Court notes that the Sixth Circuit in Speet explicitly declined to consider whether
the anti-begging ordinance at issue in that case violated the Fourteenth Amendment
because it had already affirmed the district court’s finding that the ordinance violated the
First Amendment.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
In the Court’s opinion, the fact that some speech is prohibited while other speech
is not does not trigger equal protection analysis. If that were the case, all First
Amendment claims would necessarily be Fourteenth Amendment claims as well. The
Court believes that the Equal Protection Clause prohibits laws that create certain
classifications of individuals, not certain classifications of speech.
In support of this conclusion, the Court finds informative cases in which a state
law was found unconstitutional under the Equal Protection Clause because the
classification made by the law affected an individual’s fundamental right. For example,
in Kramer v. Union Free School District No. 15, 392 U.S. 621 (1969), the United States
Supreme Court struck down a New York statute that limited voting in school district
elections to owners or lessees of taxable property and parents or guardians of children
in public schools. In Dunn v. Blumstein, 405 U.S. 330 (1972), the Supreme Court
invalidated a Tennessee law that created a durational residency requirement for would-
be voters. In both cases, the law at issue created classes of individuals (i.e., property
owner vs. non-property owner, parent vs. non-parent, resident for a certain period of
time vs. non-resident for a certain period of time) and prohibited individuals in one of the
classes from exercising a fundamental right (voting). Without the government
demonstrating that such distinctions were necessary in order to achieve a compelling
government interest, the laws could not stand.
Unlike the statutes at issue in Kramer and Dunn, Ordinance No. 4627 does not
deny the exercise of a fundamental right to a certain class of individuals while granting it
to another. As stated above, no one in Grand Junction may engage in panhandling as
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
set forth in Ordinance No. 4627. Thus, a violation of the ordinance is determined not by
who speaks, but rather by what is spoken.
The mere fact that certain individuals may express the prohibited speech does
not mean that those individuals are a class for equal protection purposes. Such
reasoning would lead to the outlandish conclusion that every law creates classes of
people—those that follow it and those that do not. The Court believes that prohibiting
such a “classification” is not what the Equal Protection Clause of Fourteenth
Amendment is meant to accomplish.
Therefore, the Court will grant summary judgment in favor of Grand Junction on
Plaintiffs’ equal protection claims under both the Fourteenth Amendment to the United
States Constitution and Article II, Section 25 of the Colorado Constitution. 11
D. Due Process Claims
In their third claim for relief, Plaintiffs assert that the challenged provisions of
Ordinance No. 4627 are unconstitutionally vague in violation of the Due Process Clause
of the Fourteenth Amendment. Plaintiffs argue that Ordinance No. 4627 is “vague as to
‘passive’ panhandling.” (Doc. # 85 at 37.) In support of this argument, Plaintiffs point to
the fact that, while the definition of “panhandling” explicitly states that the solicitor must
“approach, accost, or stop” another person, the definition also, in Plaintiffs’ reading,
“applies to solicitation carried out by ‘written signs or other means.’” (Doc. # 85 at 37-
38.) Plaintiffs also argue that “vagueness concerns are . . . raised by the amended
11 In interpreting the equal protection guarantee under the Colorado Constitution, the
Supreme Court of Colorado has “followed the analytical mode developed by the United
States Supreme Court in construing the equal protection clause of the fourteenth
amendment.” Firelock Inc. v. Dist. Court in and for the 20th Judicial Dist. of the State of
Colo., 776 P.2d 1090, 1097 (Colo. 1989). Thus, because Plaintiffs’ challenge under the
Equal Protection Clause of the Fourteenth Amendment fails, their challenge likewise
fails under Article II, Section 25 of the Colorado Constitution.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
ordinance’s consent provision.” (Doc. # 85 at 39.) In support of this argument,
Plaintiffs’ assert that it is unclear whether the solicitor must obtain the consent of the
person to be solicited before the solicitation takes place. (Doc. # 85 at 39-40.)
Grand Junction, on the other hand, argues that Ordinance No. 4627 “is not
impermissibly vague—it expressly defines what constitutes ‘panhandling,’ ‘obscene,’
and ‘obstruct.’” (Doc. # 84 at 34.) According to Grand Junction, Ordinance No. 4627
“provides fair notice of the conduct it proscribes and is not subject to arbitrary
application.”
Section 1 of the Fourteenth Amendment provides that “[n]o state shall . . .
deprive any person of life, liberty, or property, without due process of law.” U.S. CONST.
amend. XIV, § 1. To comport with the Due Process Clause of the Fourteenth
Amendment, a law must “give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute.” United States v. Lovern, 590 F.3d
1095, 1103 (10th Cir. 2009) (internal quotation marks omitted). This notice must be
given “in a manner that does not encourage arbitrary and discriminatory enforcement.”
Skilling v. United States, 561 U.S. 358, 402-03 (2010). However, the Supreme Court
has recognized that, “[c]ondemned to the use of words, we can never expect
mathematical certainty from our language.” Grayned v. City of Rockford, 408 U.S. 104,
110 (1972).
Despite having already found that the challenged provisions of Ordinance No.
4627 are unconstitutional under the First Amendment, the Court will address Plaintiffs’
due process claims because the Court believes that it is important to both decide the
claim on the merits and provide guidance to the parties on the vagueness issue.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
Applying the standards set forth above, the Court finds that Ordinance No. 4627 is not
unconstitutionally vague. Ordinance No. 4627 defines “panhandling” as “to knowingly
approach, accost or stop another person in a public place and solicit that person without
that person’s consent, whether by spoken words, bodily gestures, written signs or other
means, for money, employment or other thing of value.” (Doc. # 25-4 at 4.) It is clear
from this definition that all “panhandling,” as defined by the ordinance, must begin with
the solicitor knowingly approaching, accosting, or stopping another person. Once that
action has taken place, the solicitor may solicit that person by spoken words, bodily
gestures, written signs, or other means. A person sitting or standing still and holding a
sign (i.e., a “passive” solicitor), by definition, is not “panhandling” because that person is
not approaching, accosting, or stopping another person. Based upon this natural and
straightforward reading of Ordinance No. 4627, the Court believes that the language
used is sufficiently clear, such that it would “give a person of ordinary intelligence fair
notice” of what conduct is forbidden.
In addition, the Court believes that the consent provision is not unconstitutionally
vague. Again, Ordinance No. 4627 defines “panhandling” to mean “to knowingly
approach, accost or stop another person in a public place and solicit that person without
that person’s consent . . . .” (Doc. # 25-4 at 4.) Grand Junction is correct that “consent”
is a concept that appears throughout American jurisprudence. People of ordinary
intelligence generally understand what “consent” is and the law expects people to obtain
consent in certain instances. A law that requires “consent” is, based on this alone, not
unconstitutionally vague. Thus, Plaintiff s’ argument may be boiled down to the fact that
Ordinance No. 4627 does not specify how consent is to be obtained. However, this fact
34
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
alone does not render the language unconstitutionally vague. Of course, common
sense tells us that a would-be solicitor could ask whether the person to be solicited
consents to the solicitation. Although cumbersome, and perhaps unrealistic in a real
world setting, such a practice would provide the solicitor with express consent (or lack
thereof). The law recognizes that consent may also be implied. A person may
communicate his or her consent through action (or, in some instances, inaction).
Although implied consent may be more difficult to ascertain, it nevertheless is an
acceptable form of consent.12
Thus, the Court finds that the challenged provisions of Ordinance No. 4627 are
not unconstitutionally vague under the Due Process Clause of the Fourteenth
Amendment.
E. Plaintiffs’ Motion for Leave to File a Second Supplemental Complaint
Also before the Court is Plaintiffs’ Motion for Leave to File Second Supplemental
Complaint. (Doc. # 66.) In their proposed Second Supplemental Complaint, Plaintiffs
seek to add as a defendant in this litigation Chief Camper, in his official capacity. In
support of their motion, Plaintiffs argue that the proposed Second Supplemental
Complaint “sets forth events that have transpired and new facts that have emerged
since the filing of the original Complaint in this action on March 18, 2014.” (Doc. # 66.)
More specifically, Plaintiffs assert that, during his deposition on October 21, 2014, Chief
Camper “revealed a plan to enforce the challenged ordinance in a manner and under
circumstances that contradict representations made by the City in its motion to dismiss
and reply in support of motion to dismiss.” (Doc. # 66 at 2.) Plaintiffs allege that during
12 The Court assumes that Grand Junction understood when it passed Ordinance No.
4627 that “lack of consent” would be an element of a violation of the ordinance and
would thus need to be proven in any prosecution under the ordinance.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
his deposition, Chief Camper “stated that the ordinance would be enforced against
panhandlers who do not initiate interactions but instead solicit silently by holding a sign.”
(Doc. # 66 at 2.) Plaintiffs, therefore, seek to enjoin Chief Camper from enforcing the
challenged ordinance against them. (Doc. # 66 at 2.)
In its response to Plaintiffs’ motion, Grand Junction asserts that “it is clear from
Chief Camper’s testimony that neither he nor any City official is presently enforcing the
ordinance.” (Doc. # 69 at 2.) Therefore, Grand Junction argues, “Plaintiffs’ requested
supplemental complaint amounts to an anticipatory as-applied challenge to the
ordinance.” (Doc. # 69 at 2-3.) In addition, Grand Junction argues that “[b]ecause the
ordinance is not being enforced and the Chief clearly stated that he would seek the
input of his attorneys before enforcing the ordinance, there is no live case or
controversy.” (Doc. # 69 at 3.) According to Grand Junction, Plaintiffs’ motion should
be denied because it would be subject to a motion to dismiss and, thus, futile. (Doc. #
69 at 3.)
In their reply to Grand Junction’s response, Plaintiffs assert that “[t]he original
complaint includes claims aimed at prohibiting enforcement of the challenged Ordinance
as written,” whereas the proposed new claims “directly challenge Chief Camper’s plan
to enforce the Ordinance.” (Doc. # 70 at 6.) In support, Plaintiffs take the position that
“the Ordinance as written and as Chief Camper plans to enforce it are not one and the
same.” (Doc. # 70 at 6.)
Federal Rule of Civil Procedure 15(d) provides that “[o]n motion and reasonable
notice, the court may, on just terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that happened after the date of the
36
Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
pleading to be supplemented.” Trial courts are given “broad discretion” when deciding
whether to permit a party to serve a supplemental pleading. See, e.g., Walker v. United
Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). However, a party’s request for
leave to file a supplemental complaint “should be liberally granted unless good reason
exists for denying leave, such as prejudice to the defendants.” Id. (quotation marks and
citation omitted).
In the present matter, good reason exists to deny Plaintiffs’ motion for leave to
file their proposed Second Supplemental Complaint. Filing a Second Supplemental
Complaint to add Chief Camper as a defendant in this action would be unnecessarily
duplicative because, in the context of this litigation, the City of Grand Junction and Chief
Camper in his official capacity are one and the same. See, e.g., Thompson v. City of
Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir. 1995) (“A suit against a city official in his
official capacity is no different from a suit against the City itself.”); Watson v. City of
Kansas City, Kan., 857 F.2d 690, 695 (10th Cir. 1988) (“A suit against a municipality
and a suit against a municipal official acting in his or her official capacity are the
same.”). In other words, Plaintiffs’ argument relies on a distinction without a difference.
There is no legal significance to adding Chief Camper in his official capacity as a
defendant in this action. All orders and judgments binding on Grand Junction are
equally binding on Grand Junction’s chief of police. Therefore, Plaintiffs have not
provided sufficient justification for adding Chief Camper in his official capacity as a
defendant in this action.
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
F. Grand Junction’s Motion to Stay the Court’s Consideration of the
Pending Cross-Motions for Summary Judgment for Sixty Days
Also before the Court is Grand Junction’s recently filed motion to stay for sixty
days the Court’s consideration of the cross-motions for summary judgment. (Doc. #
110.) Plaintiffs oppose Grand Junction’s motion. (Doc. # 112.)
In support of its motion, Grand Junction notes the Reed, Thayer, and Norton
decisions and states that “[i]n response to these developments in the law, the City of
Grand Junction has elected to consider further amendments to Ordinance No. 4627.”
(Doc. # 110 at 2.) Grand Junction asserts that the “[f]irst reading of the proposed
amended ordinance will occur on October 7, 2015,” and “the anticipated date for the full
public hearing on the proposed ordinance is October 21, 2015.” (Doc. # 110 at 3.)
Grand Junction also states that “[t]he proposed amendments, if passed, would eliminate
all of the challenged portions of the current ordinance as well as other restrictions on
panhandling in order to comply with the Reed decision.” (Doc. # 110 at 3.) According
to Grand Junction: “The proposed amendments would effectively remove all of the
claims for injunctive and declaratory relief from this action. The only claim that would
survive the proposed amendments is Ms. Stewart’s claim for nominal damages.” (Doc.
# 110 at 3.)
As Plaintiffs correctly point out, Grand Junction has not provided the Court with
the text of the proposed amendments to Ordinance No. 4627. Therefore, the Court is
unable to determine the extent to which the proposed amendments address the
constitutional infirmities of Ordinance No. 4627. Moreover, the proposed amendments
are just that—proposed amendments. It is not certain that they will pass and, until that
time, Ordinance No. 4627 is in effect. Grand Junction provides an additional reason
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
why the Court should not stay its consideration of the cross motions for summary
judgments—even if Ordinance No. 4627 is amended, Plaintiff Stewart’s claim for
nominal damages would not be rendered moot. Therefore, the Court would still be
required to assess the constitutionality of the challenged sections of Ordinance No.
4627, and judicial resources would not be conserved by staying consideration of the
cross motions for summary judgment.
III. CONCLUSION
Accordingly, it is hereby ORDERED that:
Plaintiffs’ Motion for Summary Judgement (Doc. # 85) is GRANTED IN PART
AND DENIED IN PART. Plaintiffs’ Motion is GRANTED as to Claims One and Five of
Plaintiffs’ Complaint, and DENIED as to Claims Two, Three, Four, Six, Seven, and Eight
of Plaintiffs’ Complaint;
Grand Junction’s Motion for Summary Judgment (Doc. # 84) is GRANTED IN
PART AND DENIED IN PART. Grand Junction’s Motion is GRANTED as to Claims
Two, Three, Four, Six, Seven, and Eight of Plaintiffs’ Complaint, and DENIED as to
Claims One and Five of Plaintiffs’ Complaint;
Grand Junction is PERMANENTLY ENJOINED from enforcing subsections (a),
(e), (g), (i), and (j) of section 9.05.040 of Ordinance No. 4627;
Plaintiff Stewart is awarded nominal damages in the amount of $1.00;
Plaintiffs shall have their costs pursuant to Federal Rule of Civil Procedure
54(d)(1) and Civil Local Rule 54.1;
Plaintiffs’ Motion for Leave to File a Second Supplemental Complaint (Doc. # 66)
is DENIED; and
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
Grand Junction’s Motion to Stay the Court’s Consideration of the Pending Cross-
Motions for Summary Judgment for Sixty Days (Doc. # 110) is DENIED.
The Clerk of the Court shall enter judgment in favor of Plaintiffs on Claims One
and Five of Plaintiffs’ Complaint and in favor of Defendants on Claims Two, Three, Four,
Six, Seven, and Eight of Plaintiffs’ Complaint. All claims and matters having been
decided, the Clerk shall close this case.
DATED: September 30, 2015 BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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Attachment B - Browne v. City of Grand Junction, Order Dated September 30, 2015
UNIVERSITY HILL UPDATE
From: Sarah K. Wiebenson
Hill Community Development Coordinator
To: University Hill Stakeholders
Date: Thursday, September 24, 2015
Fall Power-washing of the Hill Commercial District Complete
In advance of CU Parent’s Weekend, Oct. 3-4th, the UHGID parking district has funded power-washing of the Hill
Commercial Area sidewalks. The next power-washing will coincide with the spring Hillanthropy cleanup.
September Hillanthropy Cleanup Focused on Columbia Cemetery
More than 50 students from the Inter-Fraternity Council (IFC) and
Leeds School of Business helped the University Hill Neighborhood
Association and the city’s Parks and Recreation Department divide
and replant irises along College Ave to clean up the landscaping at
the perimeter of Columbia Cemetery, located at 9th and College.
The next Hillanthropy on Sunday, Oct. 25th will continue the
cemetery work, as well as assist with repainting bike racks and
other street furnishings in the Hill Commercial Area. The city will
soon launch a page on the city’s website for community members
to access information about upcoming Hillanthropy events.
Two City Council Candidate Forums Planned for the Hill
Both the University Hill Neighborhood Association (UHNA) and Studio Arts Boulder will host meet-and-greets
with candidates for Boulder City Council next week. UHNA will host their event at Spark Boulder (1310 College,
basement level) on Thursday, Oct. 1st from 7:00-9:00 p.m. Studio Arts Boulder will host their event at the Pottery
Lab (1010 Aurora) on Friday, Oct. 2nd starting at 6:00 p.m.
First-annual Hilltoberfest to Feature Music, Beer and Brats
The Hill Boulder will host its first ‘Hilltoberfest’ on Saturday, Oct.
10th from 2:00-8:00 p.m. Sponsored by the Upslope Brewing
Company, the event will feature live music provided by The Fox
Theatre, sausages from Alfalfa’s, and local breweries Avery
Brewing Company, Boulder Beer, Mountain Sun and West
Flanders.
The event is hosted in partnership with the Responsible Hospitality
Group and the Colorado Restaurant Association. The stage and
beer tents will be located on the future ‘event street’ at
13th/Pennsylvania. The $12 entry includes three local pints.
Upcoming Meetings:
Wed., Oct. 21st at 4:00 p.m. – University Hill Commercial Area
Management Commission (1777 Broadway).
UNIVERSITY HILL UPDATE
From: Sarah K. Wiebenson
Hill Community Development Coordinator
To: University Hill Stakeholders
Date: Wednesday, September 30, 2015
CORRECTION: Thursday’s UHNA Candidate Forum to be Hosted at Grace Lutheran Church
In last week’s Stakeholder Update, it was announced that the University Hill Neighborhood Association (UHNA)
will host a candidate forum this Thursday, Oct. 1st from 7:00-9:00 p.m. The event will be hosted at Grace Lutheran
Church (1001 13th Street). A second candidate forum will be hosted on the Hill this week by Studio Arts Boulder at
the Pottery Lab (1010 Aurora) on Friday, Oct. 2nd starting at 6:00 p.m.
10/10 Hilltoberfest To Feature Live Performances by Local Bluegrass, Funk Bands
The Fox Theatre announced this week the two musical acts playing at the first-annual Hilltoberfest on Saturday,
Oct. 10th: Booster and Henscratch. The event was crafted in response to a recent survey of year-round Hill
neighbors which called for a local brewpub and more outdoor events with bluegrass, jazz and other music that
appeals to all ages. The event is free. To RSVP for the event, go to the Facebook event page HERE.
Russell + Mills Studios Selected as Designer of Public Event
Space at 13th/Pennsylvania
Earlier this year, the city issued an RFQ for a firm to design
the future shared ‘event street’ public space at
13th/Pennsylvania, funded by the ‘Community. Culture.
Safety.’ tax adopted by Boulder voters in 2014. The Hill
Commercial Area currently offers no public gathering
space, and the design will provide a landscaped half-block
that can be closed to pedestrians only for public events. In
August, three finalists were asked to prepare preliminary
design concepts for the space, which were displayed at
Buchanan’s Coffee Pub and online for public feedback. A
city selection committee announced the final choice of
Russell + Mills Studios this week. The firm has completed
similar projects for the Fort Collins Downtown
Development Authority and the Parks and Recreation
Department of Laramie, WY, as well as work for the City of
Boulder on the Civic Area Plan. The design phase will begin
immediately. Construction is anticipated to begin in fall 2016.
Upcoming Hill Meetings/Events:
Thursday, Oct. 1 at 7:00 p.m. – UHNA Council Candidate Forum, Grace Lutheran Church (1001 13th Street)
Friday, Oct. 2 at 6:00 p.m. – Studio Arts Boulder Council Candidate Forum, Pottery Lab (1010 Aurora)
Saturday, Oct. 10 at 2:00 p.m. – Hilltoberfest (13th/Pennsylvania)
Wed., Oct. 21st at 4:00 p.m. – University Hill Commercial Area Management Commission (1777 Broadway)
Sunday, Oct. 25th at 9:00 a.m. – Hillanthropy (multiple locations)
Russell + Mills Alley Enhancement, Ft. Collins, CO