5C - Recommendation to City Council - ordinance allowing Temporary Street Furniture (a.k.a. Cafe Seating)
CITY OF BOULDER
PLANNING BOARD AGENDA ITEM
MEETING DATE: March 10, 2011
AGENDA TITLE: Public hearing and recommendation to City Council of an ordinance that proposes
amendments to Title 8, "Parks, Open Space, Streets, and Public Ways" B.R.C. 1981 allowing
Temporary Street Furniture (a.k.a. Cafe Seating) to be placed in the public right of way subject to
conditions and setting forth related details.
REQUESTING DEPARTMENT:
Community Planning and Sustainability:
David Driskell, Executive Director
Molly Winter, Executive Director, Downtown and University Hill Management Division/Parking
Services, (DUHMD/PS)
Ellen Cunningham, Business Assistance and Special Events Manager, DUHMD/PS
Sandra Llanes, Assistant City Attorney III
OBJECTIVE:
1. Hear Staff presentation
2. Planning Board discussion
3. Recommendations on changes to the code
SUMMARY:
Caf6 style seating involves business owners providing temporary street furniture on public sidewalks
directly adjacent to their business. Cafe style seating does not require patio railings. Currently, the city does
not permit cafe style seating on public sidewalks.
Staff is proposing changes to the code that would permit this type of encroachment into the public right of
way without a patio lease within certain areas and under certain conditions. These changes are set forth as
amendments to chapter 8-6, "Public Right of Way and Easement Encroachments," B.R.C. 1981: amending
section 8-6-8, "Exempt Encroachments" by adding a new subsection (f) regarding temporary street furniture
and amending section 8-6-4 "Removal of Public Nuisances" by the addition of a new subsection (d) related
to enforcement of non-compliant use of temporary street furniture. (Attachment A)
Liquor licensed establishments do not qualify for a cafe seating exemption because the law requires
permanent patio railings for establishments with patio seating.
Since the proposed amendments involve a change to the city's use of public right of way space, staff has
referred the proposed changes to the board for a recommendation to City Council. Staff has also identified
the following key issues to help guide the Planning Board's discussion:
1. Are the areas identified on the attached maps appropriate for cafe seating?
2. Are the criteria complete for caf6 seating?
3. Is there sufficient pedestrian access between the cafe seating area and the street?
Agenda Item 5C Page 1 of 13
BACKGROUND:
Cafe seating areas at coffee shops and restaurants on the Hill and downtown Boulder have become popular
over the past few years. Currently the city does not allow cafe seating in the public right of way. Staff
recommends provisions to allow for cafe seating in the University Hill commercial area and downtown
Boulder as it creates a welcoming ambiance to patrons of these establishments and creates activity and
vitality in the pedestrian districts. The Pearl Street Mall is not included within the proposed areas because it
has its own set of regulations for patio seating.
Two major concerns at present are that some of these businesses are providing cafe seating without
providing liability protection for the City of Boulder. Also, there are no regulations as to how each business
can set up cafe seating while ensuring a clear walkway, as well as allowing for pedestrian safety and access
to bike racks and parking pay stations.
ANALYSIS:
Section 8-6-3, "Public Right-of-Way and Public Easement Encroachments Prohibited" B.R.C. 1981, generally
prohibits any encroachment within the public right of way without obtaining permission from the city unless
exempt pursuant to the provisions of section 8-6-8, "Exempt Encroachments," B.R.C. 1981. The proposed
ordinance would add temporary street furniture to the list of exempt encroachments. Exempt encroachments
do not require a revocable right of way permit or lease but must meet the criteria outlined in section 8-6-8,
B.R.C. 1981 noted below.
There are 13 establishments in the downtown commercial district that are utilizing the right of way to place
tables and chairs for their patrons. Staff supports the use of cafe seating for establishments without liquor
licenses with the understanding that each business will sign an affidavit of understanding that he/she will
abide by the criteria that is set forth, including proof of liability insurance. No permit or license will be
required. No railing is required. There will be no cost to the business other than providing the city with a
certificate of liability insurance naming the city as an additional insured.
Staff from Risk Management, Transportation, City Attorney's Office, Downtown and University Hill
Management Division, and Development Review and Planning have met several times over the past two years
to establish the following criteria for cafe seating.
Temporary Street Furniture may be placed in the public right of way on a sidewalk in the area immediately
adjacent to the property by the owner or tenant of property if the following standards are met: (Attachment
B)
• Property is located within the University Hill General Improvement District or the Downtown
Boulder Business Improvement District and excluding the Pearl Street Mall.
• The furniture shall consist solely of tables or chairs intended for outdoor use. Furniture shall be
constructed of metal or similarly stable and durable materials that are subject to approval by the city
manager. Any other encroachments, including without limitation umbrellas and railings are not
allowed.
• The placement or use of the furniture cannot impair or impede the utility of the right-of-way or
easement for its designated purpose.
• Establishment must provide the city with a certificate of general comprehensive liability insurance
naming the City of Boulder as an additional insured.
Agenda Item 5C Page 2 of 13
• The furniture is available for use by the general public. Temporary street furniture for the exclusive
use of patrons, offering table service of food or beverages or associated with an establishment
licensed to serve alcoholic beverages is prohibited.
• The furniture must be temporary in nature and removed easily without tools or equipment;
• The furniture must be removed and securely stored on private property between the hours of 11 p.m.
and 6 a.m. or outside of business hours, whichever is more restrictive;
• No amplified music provided to the right of way area.
• The placement or use of the furniture does not reduce the unobstructed width of the adjacent
sidewalk to less than six feet. The unobstructed width may be reduced to five feet for a maximum
distance of five feet in areas adjacent to fixed public infrastructure including, but not limited to,
utility poles, parking payment facilities, and fire hydrants (Attachment C).
• The sidewalk area adjacent to the furniture is accessible and usable to persons of all levels of
mobility and the sidewalk area can be used in a manner that is consistent with the federal Americans
with Disabilities Act.
• Additional configurations of cafe seating may be considered and would need the approval of city
staff.
Enforcement
Temporary street furniture may be removed by the city without notice for non-compliance. In addition,
businesses may be subject to penalties or fines under Section 5-2-4, "General Penalties," B.R.C. 1981.
DUHMD/PS staff will monitor cafe seating establishments for compliance.
PUBLIC COMMENT AND PROCESS:
The 13 establishments that currently qualify for cafe seating have been notified by letter of the proposed
ordinance changes. Staff held an open house for these businesses and one representative from Spruce
Confections attended. She believed that the requirements for cafe seating were fair and reasonable.
The Downtown Management Commission on Monday, February 7, 2010, voted 4-1 (abstained) to recommend
to City Council to amend Chapter 8-6 to allow for cafe seating.
Downtown Boulder, Inc. on Wednesday, February 9, 2011, passed a motion to recommend to City Council to
amend chapter 8-6 to allow cafe seating.
The Business Improvement District board on Thursday, February 10, 2011, passed a motion to recommend to
City Council to amend chapter 8-6 to allow cafe seating.
The University Hill Commercial Area Management Commission met on Wednesday, February 16 and passed
a motion to recommend to City Council to amend chapter 8-6 to allow cafe seating.
STAFF FINDINGS AND RECOMMENDATIONS
Staff recommends amending Chapter 8-6 to allow cafe seating in the areas named under the conditions listed
in this memo.
Agenda Item 5C Page 3 of 13
Aroved B
Di Driskell, Ex u 1 irector
Department of Community Planning and Sustainability
ATTACHMENTS:
A. Ordinance & Appendix 8-A, 8-B
B. Cafe Seating Brochure
C. Cafe Seating Schematic
Agenda Item 5C Page 4 of 13
Attachment A
1 ORDINANCE NO.
2 AN ORDINANCE AMENDING CHAPTER 8-6, "PUBLIC RIGHT
3 OF WAY AND EASEMENT," B.R.C. 1981 TO PERMIT
TEMPORARY STREET FURNITURE TO BE PLACED IN THE
4 PUBLIC RIGHT OF WAY SUBJECT TO CONDITIONS AND
SETTING FORTH RELATED DETAILS.
5
6 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BOULDER,
7
COLORADO:
8
Section 1. Section 8-6-4, B.R.C. 1981 is amended to read:
9
10 8-6-4 Removal of Public Nuisances
11 (a) Encroachments Are Public Nuisances: An encroachment placed upon or maintained
within the public right-of-way or a public easement contrary to the terms of this chapter
12 constitutes a public nuisance that may be removed or enjoined and abated by suit or other
13 action by the city or any resident of the city.
(b) Order To Remove Encroachments: Whenever any encroachment exists or is located
14 contrary to the provisions of this chapter or when the city manager revokes a permit or
15 lease granted pursuant to this chapter, the manager will notify the person who made,
located, caused, allowed or permitted the encroachment, or who owns or controls the
16 premises or property adjacent to or for which such encroachment exists and order the
person to remove the encroachment within such time that the city manager determines is
17 reasonable under the circumstances. Notice under this subsection is sufficient if it is
18 mailed first class to the address of the last known owner of property on the records of the
Boulder County Assessor, or if given by personal service, or, in the case of a condition
19 sufficiently dangerous to constitute an emergency, given orally in person or by telephone
to the owner or the owner's authorized representative. The manager is additionally
20 authorized to use the provisions of this section to correct violations on private property
21 adjacent to the public right-of-way of section 9-9-7, "Sight Triangles," B.R.C. 1981, and
of section 9-9-15, "Fences And Walls," B.R.C. 1981, where such structures or hedges are
22 within eighteen inches of a roadway, sidewalk, or path, and such conditions shall be
deemed encroachments.
23
(c) Ci Manager May Remove Encroachments: If the person notified under subsection (b)
24 of this section fails to comply with the order to remove the encroachment, the city
manager may cause the encroachment or obstruction to be removed and may charge the
25 cost thereof plus up to fifteen percent of such cost for administration to the person so
26 notified. If any person fails or refuses to pay when due any charge imposed under this
section, the city manager may, in addition to taking other collection remedies, certify due
27 any unpaid charges, including interest, to the Boulder County Treasurer to be levied
against the person's property for collection by the County in the same manner as
28 delinquent general taxes upon such property are collected, under the procedures
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Agenda Item 5C Page 5 of 13
I prescribed by section 2-2-12, "City Manager May Certify Taxes, Charges, And
Assessments To County Treasurer For Collection," B.R.C. 1981. This civil remedy is in
2 addition to any criminal action which the city may bring or pursue for a violation of this
3 chapter.
4 (d) Unattached Encroachments. In addition to the authoritXto remove encroachments in
section (c) above the city manager is authorized to remove or order removed at an__ time,
5 without notice, any encroachment or other item that is not permanently attached to a
building, the public- right of way, or Public_easements-if the encroachment or other item:
6 (1) Violates any provision of the Boulder Revised Code;
O 2 Creates anynuisance or public safety_haz ard
8 (3) Needs to be removed to prevent any nuisance or public safety hazard
9 (4) Presents an inconvenience to the users of the public right of way: or
10 (5) The area is necessary to accommodate any other public right of wayTurpose.
11 (de) Compliance With Order Required: No person shall place an encroachment in a public
12 right-of-way or public easement in a manner contrary to the terms of this chapter, or fail
to comply with an order to remove such an encroachment.
13 (ef) Hearing: Any person notified of an order under subsection (b) of this section may request
14 a hearing pursuant to chapter 1-3, "Quasi-Judicial Hearings," B.R.C. 1981. If a timely
request for a hearing is made, the manager may stay the order pending the hearing, or
15 may opt to require the person to remove the obstruction, in which case the hearing officer
may, if the initial order is found not to have been in compliance with the code, order the
16 city to pay the reasonable cost of removal and, in a proper case, the reasonable cost to
17 restore a structure or replace a plant.
18 Section 2. Section 8-6-8, B.R.C. 1981 is amended to read:
19 8-6-8 Exempt Encroachments.
20 The following items are conditionally permitted to encroach on public rights-of-way or public
easements without obtaining a revocable right-of-way permit or a lease, and unless indicated
21 otherwise in section 8-64, "Removal of Public Nuisancesa ' B.R.C._1981 subject to an order to
22 remove, without cause, by the city manager after ten days' notice for -encroachments that are
attached to buildings or the public right of way or public easements:
23
24 Temporary Street Furniture: Street furniture may be placed in the public right of way on
25 a_sidewalk _in the area immed ately_adiacent to the ropertyby the owner or tenant of
property if the following standards are met:
26
(l) Theproper_ty-is located within the University Hill General_Im rovement District
27 as shown in Appendix 8-A of this_04PIeT or the Downtown Boulder Business
28 Improvement District, excluding the Pearl Street Mall as shown in Appendix 8-B
of this chapter.
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Agenda Item 5C Page 6 of 13
1
O The furniture shall consist solely of tables or chairs intended for outdoor use.
2 Furniture shall be constructed of metal or similarly stable and durable materials
3 that are subject to_ap ro_v_al b the e _ mana eg r. Any other encroachments,
including without limitation umbrellas and railings are not exempt encroachments
4 under this section.
5 (3) The placement or use of the furniture does not impair or impede the utility of the
6 right-of-way or easement for its designated purpose.
7 (4) The right of way area is covered by a general comprehensive liability insurance
policy that is on file with the city manager naming the City of Boulder as
8 additional insured in accordance with section 4-1-8, "Insurance Required," B.R.C..
9 1981.
10 j5~The furniture is available for use by-the=general- public. Tempora_ sir
furniture for the exclusive use of patrons, offering table service of food or
11 beverages or associated with an establishment licensed to serve alcoholic
12 beverages is prohibited under this section.
13 6) The furniture is temporary in nature and removed easily without tools or
equipment.
14
15 7) The furniture is removed and securely stored on private property between the
hours of 11 p.m. and 6 a.m. or outside of business hours, whichever is more
16 restrictive.
17 (8) There is no amplified music provided to the right ofway-arm
18 (9) The placement or use of the furniture does not reduce the unobstructed width of
19 the adjacent sidewalk to less than _six_feet. The unobstructed width May
be
reduced to five _feet _for a maximum distance of five_feet_in areas adjacent to fixed
20 public infrastructure including, but not limited to utili oles parkin a went
21 facilities. and fire hydrants.
'
22 10) The sidewalk area adjacent to the furniture is accessible and usable to persons of
all levels of mobility and the sidewalk area can be used in a_manner that is
23 consistent with the federal Americans with Disabilities Act.
24
Section 3. Chapter 8-6 is amended by the adoption of Appendix 8-A, a map showing boundaries
25
26 of the University Hill General Improvement District, and Appendix 8-13, a map showing the boundaries
27 of the Downtown Boulder Business Improvement District that excludes the Pearl Street Mall, as
28 attached to this ordinance.
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Agenda Item 5C Page 7 of 13
I
Section 4. This ordinance is necessary to protect the public health, safety, and welfare of the
2
3 residents of the city and covers matters of local concern.
4 Section 5. The City Council deems it appropriate that this ordinance be published by title only
5 and orders that copies of this ordinance be made available in the office of the city clerk for public
6
inspection and acquisition.
7
8
9 INTRODUCED, READ ON FIRST READING, AND ORDERED PUBLISHED BY TITLE
10 ONLY this day of 12011.
11
12 Mayor
13 Attest:
14
15 City Clerk on behalf of the
16 Director of Finance and Record
17
18 READ ON SECOND READING, PASSED, ADOPTED, AND ORDERED PUBLISHED BY
19 TITLE ONLY this day of , 2011.
20
21 Mayor
22
Attest:
23
24 City Clerk on behalf of the
25 Director of Finance and Record
26
27
28
K:\DMPS\o-Cafe Seating-252-0002.doc
Agenda Item 5C Page 8 of 13
APPENDIX 8-A
The information depicted on this map is provided as graphical
representation only. While source documents were developed 1 inch equals 200 feet
with National Map Accuracy Standards, The City of Boulder
provides no warranty, expressed or implied, as to the accuracy
and/or completeness of the information contained hereon. 0 50 100 200 Feet
Map produced by
Information Resources Office lpp
Planning & Development Services .
City of Boulder City of "'yyr✓V
www.boulderplandevelop.net Boulder
- J -
University Ave Legend
Properties not in
® University Hill General Improvement District
(UHGID)
Boundaries
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Pennsylvania Ave
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College Ave
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University Hill Commercial Area
APPENDIX 8-B
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Agenda Item 5C Page 10 of 13
Attachment B
CAFE SEATING
Caf6 seating at coffee shops and restaurants on the Hill and downtown have become more
and more popular over the past few years. With that in mind, the city of Boulder now
allows these establishments to provide temporary street furniture without a permit under
the following conditions I:
• Property is located within the University Hill General Improvement District
or the Downtown Boulder Business Improvement District and excluding the
Pearl Street Mall;
• The furniture shall consist solely of tables or chairs intended for outdoor use.
Furniture shall be constructed of metal or similarly stable and durable
materials that are subject to approval by the city manager. Any other
encroachments, including without limitation umbrellas and railings are not
allowed;
• The placement or use of the furniture can not impair or impede the utility of
the right-of-way or easement for its designated purpose;
• Establishment must provide the city with a certificate of general
comprehensive liability insurance naming the City of Boulder as an additional
insured;
• The furniture is available for use by the general public. Temporary street
furniture for the exclusive use of patrons, offering table service of food or
beverages or associated with an establishment licensed to serve alcoholic
beverages is prohibited;
• The furniture must be temporary in nature and removed easily without tools or
equipment;
• The furniture must be removed and securely stored on private property
between the hours of 11 p.m. and 6 a.m. or outside of business hours,
whichever is more restrictive;
• No amplified music provided to the right of way area;
• The placement or use of the furniture does not reduce the unobstructed width
of the adjacent sidewalk to less than six feet. The unobstructed width may be
reduced to five feet for a maximum distance of five feet in areas adjacent to
fixed public infrastructure including, but not limited to, utility poles, parking
payment facilities, and fire hydrants (see attached diagram);
• The sidewalk area adjacent to the furniture is accessible and usable to persons
of all levels of mobility and the sidewalk area can be used in a manner that is
consistent with the federal Americans with Disabilities Act.
• Additional configurations of caf6 seating may be considered and would need
the approval of city staff.
• There is no charge for establishments
' "Exempt Encroachments" Boulder Revised Code 8-6-8.
Agenda Item 5C Page 11 of 13
If you are interested in cafe seating, please contact Ellen Cunningham, Downtown
and University Hill Management Division, at 303-413-7315.
v
Agenda Item 5C Page 12 of 13
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