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HomeMy WebLinkAboutAdmin Order 56-19-01-FADMINISTRATIVE ORDER NO.56-19-01-F of the City Manager of the City of Eugene ADOPTION OF DOWNTOWN ACTIVITY ZONE ADMINISTRATIVE RULE R-4.872. The City Manager of the City of Eugene finds that: Pursuant to the authority contained in Sections 2.019 of the Eugene Code,1971 (EC),on March 6,2019,I issued Administrative Order No.56-19-01,proposing to adopt Downtown Activity Zone Administrative Rule R-4.872 to clarify the meaning of the term "impede"as it is used in EC 4.872(l)(b),the meaning of the phrase "landscaped planting area"as it is used in EC 4.872(2)(f),and the meaning of the term "willful"as it is used in EC 4.990(4). A. Notice of the proposed Rule adoption was given by providing copies of the Notice to the Mayor and City Councilors,making copies available to any person who had requested such notice,and publishing the Notice in the Register Guard Newspaper on March 13,14,15,16 and B. 17,2019. The Notice advised that written comments would be received for a period of 15 days from March 13,2019,however,to ensure all interested parties had enough time to provide input,the deadline for public comment was extended from March 28,2019 to April 4,2019 at 5 p.m.The written comments received during the public comment are addressed in the City Manager's Findings in Consideration of Written Submissions attached as Exhibit A to this Order. C. BASED UPON the above findings,the findings set forth in Exhibit A,and the findings in Administrative Order No.56-19-01,and pursuant to the authority contained EC 2.019,after considering the comments submitted,the Downtown Activity Zone Administrative Rule R-4.872 is adopted to provide as follows: DOWNTOWN ACTIVITY ZONE ADMINISTRATIVE RULE R-4.872 R-4.872-A Definitions. As used herein,words and phrases have the following meanings and those ascribed in Section 4.871 of the Eugene Code,1971 (EC).In the event of a conflict,the definitions in EC 4.871 shall control. Downtown Activity Zone:Publicly-owned property and rights-of-way located within the area bounded by the centerlines of Sixth Avenue,Lincoln Street,Eleventh Avenue,and High Street,including all public improvements located therein. Administrative Order -Page 1 of 3 Impede:To prevent progress or movement,or to engage in an activity that would deter a reasonable person from progressing or moving in the area of the activity. Landscaped Planting Area:For purposes of EC 4.872(2)(f),any public area set aside for planting of trees,shrubs,flowers or other vegetation,except grass,including but not limited to, barked tree wells,planters of any material or shape,and the interior of a city-created boundary that encompasses planters and other space. Pedestrian:A person who is on foot or assisted by a mobility device and able to move immediately to accommodate other public pedestrian area users. Public Pedestrian Area:Any public sidewalk,alley,plaza,and park,excluding public areas under the primary control of entities other than the city.It also includes public streets during the time streets are closed to vehicular traffic for a city-sponsored or permitted event. R-4.872-B Unimpeded Public Pedestrian Areas. For purposes of EC ,4.872(l)(b),access to any public pedestrian area or to any public or private building adjacent to the public pedestrian area is impeded when there is less than an eight-foot wide travel lane clear for pedestrian use. 1. Sitting at a city-designated place to sit that is located within the public pedestrian area is not impeding access to a public pedestrian area,even if the city-designated place to sit leaves less than an eight-foot wide travel lane clear for pedestrian use. 2. R-4.872-C Authorized use of Amplified Sound. When not otherwise authorized through an activity permit issued for an event,for purposes of EC 4.872(l)(f),a person may obtain an activity permit to set up or operate a public address system or other amplified sound equipment by filing an application on a form provided by the City no less than seven days before the proposed use.The application shall be accompanied by the application fee established by the City Manger pursuant to EC 2.020.The seven-day time limitation for the filing of an activity permit application may be waived if the applicant can show that the event or events giving rise to the activity permit application did not reasonably allow the applicant time to file within the time prescribed and imposition of the time limitations would place an unreasonable restriction on the right of free speech. 1. 2.Any activity permit that authorizes an applicant to set up or operate a public address system or other amplified sound equipment to project sound shall include all of the following conditions: (a)Hours of operation shall be no earlier than 6:00 a.m.and no later than 1 1 :00 p.m.; The volume of outdoor sound shall be controlled so that it will not be audible for a distance in excess of 250 feet from the public address system or other amplified sound equipment;and, (b) Administrative Order -Page 2 of 3 (c)A separate activity permit is required for each 24-hour period. 3.When deciding whether to grant to deny an activity permit to set up or operate a public address system or other amplified sound equipment the City Manager or designee shall consider all of the following: (a)Whether another application has been submitted and an activity permit issued for the same location during the same time period; (b)The applicant's history of compliance with any prior permit conditions and City noise regulations; Whether the proposed activity permit will substantially interfere with the public health,safety,and welfare or the peaceful enjoyment of neighboring property; generate the type and volume of vehicle and pedestrian traffic that will cause substantial congestion and/or impede the orderly dispersal of individuals and traffic,or adversely affect the safety and security of persons,including traffic and pedestrian safety;and, Whether the public address system or other amplified sound equipment would be emitted within 250 feet of a hospital,school,place of worship,courthouse,or library during the normal hours of use of said facility,unless the sound emitted will not be disruptive of the operations of said facility. (c) (d) R-4.872-D Willful Violations within the Downtown Activity Zone -Notice. For purposes of EC 4.990(4),it is a willful violation of EC 4.872,any1. administrative rules adopted thereunder,or any other section of Eugene Code Chapter 4 punishable by fine only while in the Downtown Activity Zone,when a person engages in prohibited conduct after receiving at least two violation citations for the same prohibited conduct within the prior six months.. A4r%-day of y 2019.Dated and effective this &Jon R.Ruiz City Manager Administrative Order -Page 3 of 3 I Exhibit A City Manager's Findings in Consideration of Written Submissions During the 23-day comment period,the City received 22 comments from 1 8 people regarding the proposed Downtown Activity Zone Administrative Rule R-4.872 ("proposed Rule").A summary of the comments received,and findings addressing the comments,are set out below: 1.Comments opposing the proposed Rule because requiring a clear eight-foot wide travel lane for pedestrian use unfairly impacts the unhoused and unnecessarily restricts the use of public space. Findings:Currently,Eugene Code (EC)4.872(l)(b)provides:"Except when approved as part of an authorized activity,the following acts are prohibited in the public pedestrian areas within the downtown activity zone:...(b)Impeding access to any public pedestrian area or to any public or private building adjacent to the public pedestrian area."EC 4.871 defines "public pedestrian area"as:"Any public sidewalk,alley,plaza,and park,excluding public areas under the primary control of entities other than the city.It also includes public streets during the time streets are closed to vehicular traffic for a city-sponsored or permitted event."EC 4.871 defines "impede"to mean:"To prevent progress or movement, or to engage in an activity that would deter a reasonable person from progressing or moving in the area of the activity." While EC 4.872(l)(b)and the definition of "public pedestrian area"clearly prohibit someone within the downtown activity zone (DAZ)from impeding a sidewalk,what constitutes "impeding"a sidewalk,and,therefore a violation of EC 4.872(l)(b),needs clarification.Without greater specificity around the meaning of "impede,"the ability to both comply with and enforce EC 4.872(l)(b)is difficult.The proposed Rule clarifies that, for purposes of EC 4.872(l)(b),impeding means providing less than an eight-foot wide travel lane clear for pedestrian use. EC 4.870 describes the purpose of the DAZ,stating,in part:"This area is intended to encourage private investment in the downtown area and to enhance the value of such investments by encouraging pedestrians to come to the area."An eight-foot pedestrian travel lane furthers the Council-stated intent of encouraging pedestrian users within the DAZ.A wider travel lane enables two-way,free-flowing pedestrian traffic,including two- way traffic of individuals using mobility devices. Impacts of the proposed Rule can be mitigated through educating the public on permissible locations to relocate and in delaying enforcement of the proposed Rule to provide additional time to increase the number of these permissible locations.As a result of these comments,there will be 6-month education period during which time no citations will be issued for violating EC 4.872(l)(b)except in extreme,repeat offender situations. Exhibit A to Administrative Order 56-19-01-F -Page 1 of 4 Exhibit A 2.Comments opposing the proposed Rule because people do not have anywhere else to go or sit. Findings:The City routinely works to find locations to install more benches within the DAZ.City designated seating,such as City installed benches,are exempt from the proposed Rule and that will allow for benches to be placed in locations that may leave less than the required 8-ft of clear space.Anyone utilizing these benches will be doing so in compliance with EC 4.872(l)(b).Sidewalks remain public space under this proposed Rule. There are tables and chairs in Kesey Plaza and the Park Blocks and additional benches in the Park Blocks,all of which are available for everyone to use,regardless of housing status. Additionally,the City is actively working to establish a day-center in or near the DAZ with the intent of having one open in the very near future.In response to these comments and in recognition that the City has not yet established a day-center near the DAZ,there will be 6-month education period during which time no citations will be issued for violating EC 4.871(l)(b)except in extreme,repeat offender situations. 3.Comments supporting the proposed Rule because an eight-foot clearance will make the DAZ sidewalks more accessible to everyone. Findings:No changes are being made to the proposed Rule as a result of these comments. 4.Comments expressing concern that some of the terms used in the proposed Rule are unclear,including whether the term "landscaped planting area"includes the metal grates in the sidewalks. Finding:As noted above,the intent of the proposed Rule is to provide clarity to certain undefined,or vaguely defined,terms.Understanding of both the Code and the proposed Rule will be achieved through public education.Regarding planted trees,EC 4.872(2)(f) specifically states that "landscaped planting areas"include public areas set aside for planting of trees,there is no exception for grated public areas set aside for planting trees. Subsequent to the original drafting of the proposed Rule,another provision in EC 4.872 has surfaced as needing additional clarification.Specifically,EC 4.872(l)(f)states: "Except when approved as part of an authorized activity permit,the following acts are prohibited in the public pedestrian areas within the downtown activity zone:...(f)Setting up or operating a public address system or other amplified sound equipment."While use of amplified sound equipment is often part of a larger,authorized event and use of the equipment is approved through the event's activity permit,based on EC 4.872(l)(f),a person my set up or operate a public address or other amplified sound equipment within the DAZ if that person holds a valid activity permit;that permit being solely to authorize use of the equipment,i.e.,not connected to a larger event.While there is an adopted $5.00 fee for an amplified sound permit,the process of obtaining,and the basis for issuing,a permit to authorize this activity is not clear.As such,the proposed Rule is being revised to provide clarity around the issuance of activity permits for purposes of operating public address and other amplified sound equipment within the DAZ. Exhibit A to Administrative Order 56-19-01-F -Page 2 of 4 Exhibit A 5.Comments expressing concerns with the affirmative defense set forth in proposed Rule R-4.872-B.3,including the burden of proof and enforcement discretion. Finding;R-4.872-B.3 has been deleted from the proposed Rule as a result of these comments. 6.Comments regarding the permitting requirements for sidewalk vendors within the PAZ and questioning whether the permit requirement is constitutional. Finding:The proposed Rule does not impose the permit requirement for individuals wishing to engage in commercial pursuits within the DAZ.Rather,EC 4.872(l)(c) prohibits anyone from "engaging in a commercial pursuit,except for personal solicitation and street entertainment"without an activity permit.In 2017,Administrative Rule R-3.336 (private commerce on public property)was amended,deleting the provision that activity permits will only be issued to people selling "items made,grown and/or gathered by the vendors or permittees,or items made in the licensed vendors'or permittees'presence and under their direct and personal supervision."It was this provision that a municipal court judge concluded impermissibly distinguished between expressive materials.That is,under the since-deleted administrative rule,a person wishing to sell a book written by someone else could not obtain an activity permit,yet someone wishing to sell a book they wrote themselves could obtain an activity permit.Since both sellers were prohibited from selling the books without a permit,yet only one seller could obtain the permit,a municipal court judge concluded that the since-deleted administrative rule made an impermissible distinction between expressive materials (i.e.,the book).Under the current City Code and Admin Rule R-3.336,all individuals wishing to engage in commercial activity in the DAZ must obtain a permit;such a requirement does not distinguish between types of expressive material and is constitutionally permissible. Vendors using tables to sell their items take up a larger portion of downtown's public pedestrian area.Limiting these larger-footprint vendors to a 4x4 table and to two locations within the DAZ (NE corner of Broadway and Willamette and the NW corner of 8th Ave and Willamette)is intended to balance the needs of the vendors with the need to maintain unimpeded pedestrian traffic in the downtown area,which is high pedestrian traffic area. If there is a need for additional locations within the DAZ for table-vending,that is something that the City can explore.That said,the proposed Rule does not impose new or change existing regulations on the size and location of vendors that possess downtown activity permits. No changes are being made to the proposed Rule as a result of these comments. 7.Comments regarding current use of the sidewalks bv businesses that intrude into the eight-foot path way. Finding;EC 4.870(1)states that:"The multiple uses of the public pedestrian areas in the downtown activity zone are to be accommodated by reserving different areas (1)as visual amenities designed for everyone's enjoyment,(2)for pedestrian uses,(3)for use by Exhibit A to Administrative Order 56-19-01-F-Page'3 of 4 Exhibit A abutting merchants,(4)for uses by other commercial pursuits,and (5)for public events." For many years,the City has authorized,through the issuance of downtown activity permits,businesses within the DAZ to place cafe seating and other items related to their abutting businesses within the public pedestrian area.The proposed Rule has no impact on these types of permitted activities.The prohibition on impeding access to any public pedestrian area does not apply to authorized activities.Specifically,EC 4.872(l)(b)states: "Except when approved as a part of an authorized activity,the following acts are prohibited in the public pedestrian areas within the downtown activity zone:...(b)Impeding access to any public pedestrian area or to any public or private building adjacent to the public pedestrian area."(Underline added).The placement of cafe seating and other items allowed under currently adopted code and administrative rules are approved through the issuance of a downtown activity permit,thus,are excluded from the prohibition set forth in EC 4.872(l)(b).This is consistent with the Council-stated intent around uses of the DAZ's public pedestrian areas,thus,no change is being made to the proposed Rule as a result of these comments. Exhibit A to Administrative Order 56-1 9-0 1-F -Page 4 of 4