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Emergency Order 2020-18 Allowing Additional Types of Businesses to Expand Outdoor Seating (5TH AMENDED)Emergency Order 2020-18 – 5th Amended CITY OF BOULDER ORDER RELATED TO DECLARATION OF LOCAL DISASTER EMERGENCY A disaster emergency was declared by the city manager on March 14, 2020. The city council confirmed and extended the emergency declaration until further notice at the March 16, 2020 special council meeting. Pursuant to Section 2-2.5-7, “Powers,” B.R.C. 1981, the city manager finds a need to issue this order in order to protect the health, safety and welfare of persons or property within the city or to otherwise preserve the public peace or abate, clean up or mitigate the effects of any disaster emergency. On May 26, 2020, the city manager approved an emergency order (Emergency Order 2020-16) to allow restaurants to utilize public rights-of-way and private property in order to operate outdoors and create safe distances between patrons and staff members. On June 16, 2020, the city manager approved an emergency order (Emergency Order 2020-18) to allow other commercial uses to utilize public rights-of-way and private property in order to operate outdoors and to establish waiting areas and areas used for wellness checks outside of businesses. These orders were extended on July 16, 2020; September 3, 2020; and October 8, 2020. There is an interest in extending the program beyond the winter to address the anticipated continuing pandemic restrictions that have had a significant economic impact to local businesses. The identified uses appropriate for temporary outdoor expansion are commercial uses that include restaurants, retail sales, accessory sales, convenience retail sales, personal service uses, mobile food vehicles, office uses (all types), indoor amusement establishments, museums, small theatres or rehearsal spaces, nonprofit membership clubs, religious assemblies, adult education facilities, vocational and trade schools, indoor recreational or athletic facilities and animal hospital or veterinary clinics as defined in Title 9, B.R.C. 1981. These businesses provide important services to the community and are essential to the well-being of residents and visitors. They are also important employers and contributors to the local economy. The city finds that it is reasonable and prudent to allow these uses to temporarily expand outdoors. In order to ensure equity in the use of public and private spaces and to meet the distancing requirements, the city will allow the use of public rights-of-way to be used for uses described above, subject to the provisions of Chapter 8- 6, B.R.C. 1981, for revocable permits. Also, this order will allow the uses identified above to use private property, including yards within setback areas and parking lots, subject to terms and conditions that are necessary to protect the public health, safety and welfare. Subsection 2-2.5-7(r), “Powers,” B.R.C. 1981, authorizes the city manager to “suspend or modify provisions of any ordinance if strict compliance with such ordinance would prevent, hinder, or delay action that is necessary to cope with any disaster emergency.” To assist commercial uses in reopening, certain land use regulations, right-of-way regulations, or fee provisions may need to be suspended or modified to facilitate the reopening of these businesses. I find that the operation of the businesses identified above is important to the local community and economy and the inability to operate safely presents an imminent threat to life, health, safety and welfare of persons in our community. Accordingly, effective immediately the city manager may suspend or modify any provision within the Boulder Revised Code, 1981, or condition of a land use approval that will allow the issuance of a revocable right-of-way permit for use of the public areas within the public right-of-way for the uses identified above. For the purposes of this order, these commercial uses may utilize private property that would otherwise not be eligible for use for outdoor operations. The city manager will issue revocable permits to use the right-of-way or permission to use private property subject to the following: 1. The outdoor area for the commercial use is approved as part of a revocable right-of-way permit or land use permit. 2. Use of the outdoor areas will not create an imminent threat to the public health, safety and welfare. 3. Request for the approval will be done on forms approved by the city manager and will include any terms and conditions for the permit. Permits will be issued for use. The consent of any person that could be directly adversely impacted will be required for the application. Examples of persons that could be directly adversely affected include, without limitation, a landlord that owns a parking lot that is used by businesses in common or tenants of a ground floor business if a use expands in front of its business in the right-of-way. 4. In issuing permits, the city manager will balance the needs of the commercial uses to have an economically viable use during this emergency with needs of surrounding property owners, and the general public health, safety and welfare. 5. Factors that are included in the public health, safety and welfare include without limitation: a. Access to utility infrastructure, including manholes, storm water inlets, drain pans, water, wastewater, stormwater mains, water meters fire hydrants and building fire connections, communications, gas and electric equipment; b. Adequate access through the area by the public, including consideration of access to the area by emergency service providers; c. The health and convenience of the business, employees, customers and the residents and visitors to the surrounding areas; d. The term of the permit and hours of operation; and e. Offsite impacts to other residents and businesses in the area. 6. The city manager will designate areas within the public right -of-way for outdoor areas, including without limitation areas within closed streets, parklets and sidewalks. The city manager may set terms or conditions for a permit that will promote the public health safety and welfare. 7. The city manager approves a sound level variance to allow for the use of generators and heaters that are maintained in good repair and used according to the manufacturer’s instructions while temporary outdoor expansion areas are in operation pursuant to Subparagraph 5-9-3(d)(5). Upon order of the city manager, the operator of the equipment shall cease operation if the city manager determines that the use of such equipment at levels that exceed city sound requirements constitutes a public nuisance or otherwise has substantial impacts on surrounding properties. 8. All outdoor commercial areas shall be operated in a manner that complies with all state and local health orders related to the response and recovery from the COVID-19 emergency. In addition, I hereby modify, effective immediately, Subparagraph 9-6-6(d)(1)((B), B.R.C. 1981,and authorize City of Boulder licensed and permitted mobile food vehicles to be operated in public right-of-way in residential zones, as classified in Section 9-5-2, B.R.C. 1981. Furthermore, consistent with the requirements of the Pearl Street Mall, no person shall use amplified sound in the designated Downtown Boulder Business Improvement District unless it is part of an approved Special Event permit allowing such amplified sound. The boundaries for the Downtown Boulder Business Improvement District can be found in Attachment A attached hereto. This order is effective until 11:59 p.m. on October 31, 2021 unless further amended or modified. This order is necessary to allow for the safe reopening of commercial uses in an equitable manner and to prevent the assembly of large groups of people, which will present a risk of infection during the disaster emergency. Once issued, this order may be changed from time to time during the period of a declared disaster emergency based upon the discretion of the city manager. Enforcement: Pursuant to Section 2-2.5-8, “Adherence to Emergency Orders,” B.R.C. 1981, Police, code enforcement and such other law enforcement and peace officers as may be authorized by the city manager shall be authorized to enforce the orders, rules and regulations made or issued pursuant a declared disaster emergency. Further, no person shall violate this order, or any pe rmit is issued pursuant to this order. Any such violation may result in the revocation of any such permit. Notice: All members of the public shall be deemed to have been given notice of the restrictions contained within a declaration upon its dissemination to the news media or publication on city websites or by use of other means of publicity. Violation of Order: During the period of a declared disaster emergency, a person shall not: (1) Violate any of the orders duly issued by the city manager or designee pursuant to such declaration; (2) Violate any of the conditions of any permit duly issued by the city manager or designee pursuant to such declaration; or (2) Willfully obstruct, hinder or delay any duly authorized city officer, employee or volunteer in the enforcement or exercise of the provisions of this chapter, or of the undertaking of any activity pursuant to this chapter. DATE: ________________ 2021, _________________ a.m./p.m. ___________________________________________ City Manager or other Authorized City Official as designated by Chapter 2-2.5, “Civil Emergencies and Disasters,” B.R.C. 1981. April 7,3:30 p.m. ATTACHMENT A Description of Proposed Business Improvement District boundaries: Starting at the intersection of Broadway & Pine Street; east on Pine Street, 1 block, right on 13th Street, ½ block; left onto alley between Pine and Spruce; I block east; right on 14th Street, ½ block; east on centerline of Spruce, 2 blocks; right on 16th Street, ½ block; left onto alley between Spruce and Pearl, 4 blocks; across 20th Street continuing down alley, include block 88, lots 8,9, 10 & 11; across Pearl Street to include block 75, lots 4, 5, 6 &7; right onto alley between Pearl and Walnut, 2 ½ blocks west; left on 18th Street, ½ block; right on Walnut Street, I block; left on 17th Street, 1 block; right on centerline of Canyon Blvd, 1 block; left on 16th Street, ½ block; follow creek to block 1 Orchard Home, lot 2; across Grove Street to include block 3, and tracts 517 & 520; right on Arapahoe, west to 13th Street; left on centerline of Canyon Blvd, 4 blocks; right on 9th to include lot 1 Canyon Center ; left on Walnut to the intersection of 8th and Walnut Street; right on centerline of 8th Street, 1 block; left on Pearl Street to block IO1, lot 29 ; right on ally between Pearl and Spruce to block 97, lots 1 & 2; across Spruce Street to include lot 2 Howe subdivision ; right on alley between Spruce and Pine to Broadway; left on centerline of Broadway to the intersection of Broadway & Pine Street. Also include block 1, lot 2 off Broadway in Central Park. Exclude from the Business Improvement District, federal property owned by US Post Office, block 69, lots 9 - 12, and north 50 feet of lots 7 & 8. Exclude from the Business Improvement District, Boulder County owned property Courthouse; block 95, lots 1; block 94, lots 4, 5 & 6. Exclude from the Business Improvement District, City of Boulder property, block 11, lots I, 2 &3; block 12; block 13; block 14, lots I through 12; block 2, lots 1 through 6; block 1, lots 1,3,4,5,6 &7. Exclude from the Business Improvement District, Central Area General Improvement District Property, block 45, lots 1 - 6; block 43, lots 3 - 6; block 39, lots 4 - 9; block 70, lots 1 - 6; block 96, lots 3 - 6; and, block I 19, lots 10- 12. Pursuant to the Statute, the District shall contain only that taxable real and personal property within said boundaries which is not classified for property tax purposes as either residential or agricultural. ATTACHMENT A