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HomeMy WebLinkAboutCC AG PKT 2002-06-05 Supplemental - Ordinance to City of Buena Park regarding regulation of newsracksORDINANCE NO. AN ORDINANCE OF THE CITY OF BUENA PARK AMENDING CHAPTER 12.16 OF THE BUENA PARK CITY CODE REGARDING REGULATION OF NEWSRACKS The City Council of the City of Buena Park does ordain as follows: Section 1. Findings and Intent A. The City Council previously enacted an ordinance to add Chapter 12.16 to the Buena Park City Code ( "BPCC ") to regulate newsracks on public rights -of -way. The purpose of BPCC Chapter 12.16, as set forth in BPCC Section 12.16.010, is to promote the public health, safety and welfare through the regulation of placement, appearance, number, size and servicing of newsracks on public rights -of -way so as to achieve designated substantial governmental interests. B. In enacting this Ordinance, the City Council intends to update the City's existing newsrack regulations in order to further the purposes set forth in BPCC Section 12.16.010. Section 2. Code Amendment Section 12.16.020 (Definitions) of Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended to read as follows: 12.16.020 Definitions. For the purpose of the provisions of this chapter concerning newsracks on public rights -of -way, the following words and phrases shall be construed to have the meanings set forth in this section, unless it is apparent from the context that a different meaning is intended: A. "Beach /Crescent Architectural Overlay Zone" means those CG (Commercial General) and CO (Commercial Office) zoned properties located south of Crescent Avenue to the Buena Park/Anaheim city boundary, between Grand Avenue and Locust Drive. B. "Block" means that public right -of -way abutting on one side of a street and lying between the two nearest intersecting streets or between the nearest intersection street and its own termination. . C. "City- approved newsrack model" means the standard K -Jack Engineering Company model series 50, or an equivalent model approved by the Director, painted a color equivalent to K -Jack Engineering Company "Mack Truck Green" for the Entertainment Corridor Specific Plan ( "ECSP "), Beach/Crescent Architectural Overlay (BCAO) zone, and any property located on Beach Boulevard; and the K -Jack ORDINANCE NO._ Engineering Company freestanding model series KJ100, or an equivalent model approved by the Director, painted a color equivalent to K -Jack Engineering Company "Mack Truck Green" for each location outside of the ECSP, BCAO zone and Beach Boulevard Corridor boundaries. D. "Curb" means the raised edge adjacent to roadway between the sidewalk and the roadway located within public right -of -way. E. "Daily publication" means a publication that is published on five or more days per calendar week. F. "Department" means the Community Development Department of the city G. 'Director" means the Community Development Director of the city or the Director's designee. H. Driveway approach" means the portion of public right -of -way, including curb returns or depressed curbs, providing vehicular access to a private roadway, building or other facility. I. "Entertainment Corridor" means those properties zoned Entertainment Corridor Specific Plan (ECSP) or Amusement Resort (AR). J. Explicit sexual acts" means depictions of sexual intercourse, oral copulation, anal intercourse, oral -anal copulation, bestiality, sadism, masochism or excretory functions in conjunction with sexual activity, masturbation, or lewd exhibition of genitals, whether any of the above conduct is depicted or described as being performed alone or between members of the same or opposite sex or between humans and animals, or any other act of sexual arousal involving any physical contact with a person's genitals, pubic region, pubic hair, perineum, anus or anal region. K. "Monthly Publication" means a publication that is published between one and four days per calendar month. L. " Newsaack" means any self -service or coin - operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of any publication. M. "Owner" means the person to whom a newsrack permit is issued. For purposes of this chapter, "owner" shall be synonymous with permittee. N. 'Parkway" means that area between the sidewalk and the curb of any street, and where there is no sidewalk that area between the edge of the roadway and the property line adjacent thereto. Parkways shall also include any area within a roadway which is not open to vehicular travel. 3 ORDINANCE NO._ O. 'Pre- existing Publications" means publications that on November 7, 2001, were located in newsracks that complied with the newsrack location and placement standards set forth in the Buena Park Municipal Code as such standards existed immediately prior to the effective date of this Ordinance. P. "Public right -of -way" means any place of any nature which is dedicated to use by the public for pedestrian and vehicular travel, and includes, but is not limited to, a street, sidewalk, curb, gutter, intersection, parkway, highway, alley, lane, mall, court, way, avenue, boulevard, road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park, square or any similar public way. O. 'Roadway" means that portion of a street improved, designed or ordinarily used for vehicular travel. R. "Sidewalk" means any surface provided for the use of pedestrians. S. "Street' means the same as in California Vehicle Code Section 590 or any successor provision thereto. T. "Weekly publication" means a publication that is published between one and four days per calendar week." Section 3. Code Amendment. Section 12.16.030 (Installation — Permit required- - Conditions) of Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended to read as follows: 12.16.030 Installation- Permit required - Conditions. A. Permit Required. An annual newsrack permit issued in accordance with this chapter shall be required prior to installation, placement or maintenance of any newsrack which in whole or in part rests upon, in, or over any public right- of -way. B. Application. Applications for new permits required hereunder, and renewal of existing permits, shall be filed with the Director upon printed forms to be prescribed and supplied by the Director. The application shall be signed by the applicant and it shall contain the following information: 1. Name of the street and approximate location of the newsrack to be installed or maintained; 2. Name, address and telephone number of the applicant; 3. The name of the newspaper or periodical to be contained in each newsrack; .3- ORDINANCE NO._ 4. Type or brand of newsrack, including a description of the newsrack and how it will be mounted; 5. A precise diagram showing the applicant's proposed location for the newsrack and the location and number of all other newsracks existing within one hundred feet thereof; 6. Number of newsracks requested at the proposed location; 7. Hold Harmless Statement. Every applicant for a newsrack permit shall file a written statement satisfactory to the City whereby the applicant agrees to indemnify, defend and hold harmless the city, its elected officials, officers, and employees, with respect to any loss or liability or damage, including attorney's fees, expenses and costs, for personal injury and for property damage sustained by any person as a result of the applicant's installation, use or maintenance of a newsrack or newsracks within the city. 8. Insurance. Every applicant for a newsrack permit shall file a certificate of endorsement evidencing that a comprehensive liability insurance policy has been issued for the period of the requested newsrack permit by an insurance company that both (i) is admitted and licensed to do business in the State of California; and (ii) is rated A or better according to the most recent A.M. Best Co. Rating Guide. The policy limits of such insurance shall not be less than $1,000,000.00 combined single limit or equivalent. Such policy shall name the city as an additional insured; shall specify that it acts as primary insurance and that no insurance held or owned by the designated additional insureds shall be called upon to cover a loss; and shall contain a provision that no termination, cancellation or change of coverage of insured or additional insureds shall be effective until after thirty days notice thereof has been given in writing to the Director. Cancellation or reduction of coverage of such policy during the term of a newsrack permit shall be grounds for revocation of the permit. 9. Business License. Every applicant for a newsrack permit shall present proof of receipt of a business license pursuant to Chapter 5.00 of this code or proof of application for such license. C. Each application for a newsrack permit shall be accompanied by a nonrefundable application fee as established by a resolution of the city council. This fee shall not exceed the actual cost of investigating the facts contained in the application, processing the application, and field inspection. D. Based upon information provided pursuant to subsection C of this section, the Director shall determine whether the following findings can be made: and The applicant has complied with the requirements of this section; -4- ORDINANCE NO._ 2. The proposed newsrack installation complies with the regulations of this chapter. If the findings can be made, then within ten city business days of the filing of a complete application the Director shall issue a permit for the proposed newsrack installation; otherwise, the application shall be denied. If the application is denied, then the applicant shall be notified in writing of the specific cause of denial by the Director and of the right to appeal in accordance with Section 12.16.150 of this chapter. i E. Each permittee shall report immediately to the Director any change of address of such permittee. Prior to any transfer of ownership of newsracks for which a newsrack permit has been issued, the permittee shall notify the city of such transfer of ownership. All newsrack transferees shall comply with the provisions of this section and the provisions of Section 12.16.080 related to identification of newsracks, within ten days of the effective date of such transfer. A failure to comply with this subsection shall be grounds for revocation of a newsrack permit. F. Every newsrack shall have affixed thereto in a place where may be easily seen, the annual permit tag issued by the department. G. Each permittee shall report to the Director any replacement of a newsrack for which a newsrack permit has been issued within ten days of the date of such replacement. Section 4. Code Amendment Section 12.16.050 (Placement and maintenance standards) of Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended to read as follows: 12.16.050 Placement and maintenance standards. Any newsrack, which in whole or in part rests upon, in or over any public sidewalk or parkway, shall comply with the following standards: A. Newsracks shall be forty-eight inches in height and be the City- approved newsrack model. B. Newsracks shall only be placed near a curb. Newsracks placed near the curb shall be placed no less than eighteen inches nor more than twenty-four inches from the face of the curb. No newsrack shall be placed or maintained on a sidewalk or parkway opposite a newsstand or another newsrack. C. Each newsrack shall be bolted to the sidewalk upon which it is maintained unless it is vertically stacked upon another newsrack pursuant to Section 12.16.053. D. Notwithstanding the provisions of Section 12.16.040, no newsrack shall be placed, installed, used or maintained: -5- ORDINANCE NO._ 1. Within twenty feet of any marked crosswalk; 2. Within twenty feet of the curb return of any unmarked crosswalk; 3. Within ten feet of any fire hydrant, fire call box, police call box or other emergency facility; 4. Within fifteen feet of any driveway approach; 5. Within ten feet ahead of and forty feet to the rear of any sign marking a designated bus stop; 6. Within ten feet of any bus bench or bus shelter; 7. At any location whereby the clear space for the passageway of pedestrians is reduced to less than forty-eight inches; 8. At any location whereby the clear space for the passageway of pedestrians is reduced to less than five feet for a length of more than thirty feet; 9. Within three feet of any area improved with lawn, flowers, shrubs or trees, or within three feet of any display window of any building abutting the sidewalk or parkway or in such a manner as to impede or interfere with the reasonable use of such window for display purposes; 10. Within ten feet of any mailbox, utility pole, telephone pedestal and /or any other permanent fixture located in the public right -of -way. 11. Adjacent to or on the curb abutting any fire access lane. 12. Within the limits of any portion of curb painted yellow, white or green E. No newsrack shall be used for advertising signs or publicity. Notwithstanding the preceding, the name and logo of the publication distributed in a newsrack may be stenciled upon the front and back of such newsrack, and the requirements of Section 12.16.080 shall be satisfied. F. Each newsrack shall be maintained in a clean and neat condition and in good repair at all times. The owners of vertically stacked and freestanding M100 newsracks shall be jointly responsible for maintenance of the shared components of such newsracks. Occurrence of any of the following conditions on a newsrack shall constitute evidence that the newsrack is not being maintained in a clean and neat condition or in good repair: 1. Graffiti. M ORDINANCE NO._ 2. Broken or unreasonably misshapen structural components. 3. Cracks, dents or discoloration of the display window. 4. Substantial accumulation of dirt, grease rust or corrosion. 5. Substantial amount of chipped, faded, peeling, or cracked paint. 6. Substantial amount of tearing, peeling or fading of any paper or cardboard parts or inserts of the newsrack. G. Each newsrack shall be installed and maintained in compliance with this chapter, and in such manner as to comply with all state and federal regulations concerning access by disabled persons. Section 5. Code Amendment Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended by adding a new Section 12.16.053 to read as follows: 12.16.053 Concentration standards. A. Maximum concentration. No more than sixteen newsracks shall be located on any one block. No more than eight newsracks shall be located within a space of two hundred feet in any direction within the same block. B. Stacking required. When there are two or more newsracks at each location within the ECSP zone, BCAO zone, and the Beach Boulevard Corridor, the newsracks shall be vertically stacked in groups of two. C. Freestanding M100 newsracks permitted. At each location outside of the ECSP, BCAO zone, and Beach Boulevard Corridor boundaries, freestanding M100 newsracks may be installed. Any newsrack model proposed to be installed must be a City- approved model. D. Duplication. No newsrack used for the distribution of a particular publication shall be placed, installed, used or maintained within a space of two hundred feet in any direction of another newsrack used for the distribution of the same publication on the same block. This prohibition shall be inapplicable, and the Director shall not deny a newsrack permit due to noncompliance with this prohibition, if the Director finds that less than eight newsracks have been located within a space of two hundred feet in any direction on that block at that location for a period of sixty days or more. -7- ORDINANCE NO._ Section 6. Code Amendment. Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended by adding a new Section 12.16.055 to read as follows: 12.16.055 Transition program. A. Purpose. The purpose of this section is to establish a program for the orderly transition of newsracks into compliance with this chapter. I B. Application required for existing racks. Owners of newsracks located in whole or in part over any public right -of -way shall apply for an annual newsrack permit for each newsrack and to bring each approved newsrack into compliance with this chapter, according to the following transition schedule: 1. Phase I. Owners of newsracks located in whole or in part over any public right -of -way within the ECSP, BCAO zone, and Beach Boulevard Corridor shall have ninety days from the effective date of this Ordinance to apply for an annual newsrack permit for each newsrack and, if the existing newsrack does not conform to a City- approved model, to replace the existing newsrack with the standard K -Jack Engineering Company model series 50, or an equivalent model. 2. Phase Il. Owners of newsracks located in whole or in part over any public right -of -way along the east and westbound streets outside of the ECSP, BCAO zone, and Beach Boulevard Corridor shall have 180 days from the effective date of this Ordinance to apply for an annual newsrack permit for each newsrack and, if the existing newsrack does not conform to a City- approved model, to replace the existing newsrack with the standard K -Jack Engineering Company model series 100, or an equivalent model, or the standard K -Jack Engineering Company model series 50, or an equivalent model. 3. Phase III. Owners of newsracks located in whole or in part over any public right -of -way along the north and southbound streets outside of the ECSP, BCAO zone, and Beach Boulevard Corridor shall have 270 days from the effective date of this Ordinance to apply for an annual newsrack permit for each newsrack and, if the existing newsrack does not conform to a City- approved model, to replace the existing newsrack with the standard K -Jack Engineering Company model series 100, or an equivalent model, or the standard K -Jack Engineering Company model series 50, or an equivalent model. C. Location prioritization categories. In determining which publications shall be permitted at a particular location for which demand for newsrack space exceeds supply, the Director shall adhere to the following criteria: 1. First priority shall be given to Pre - Existing Publications. In the event demand by Pre - Existing Publications exceeds supply, at any particular location, the Director shall adhere to the following additional criteria: WE ORDINANCE NO._ a. First priority shall be given to Pre- Existing Publications that were located at that particular location for which demand for newsrack space exceeds supply. Where demand by such Pre - Existing Publications located at a particular location exceeds supply at that location, the Director shall adhere to the following additional criteria: (1) First priority shall be given to daily publications. (2) Second priority shall be given to weekly publications. (3) Third priority shall be given to monthly publications. b. Second priority shall be given to Pre- Existing Publications that were located at other locations based upon closest proximity. C. Third priority shall be given to daily publications. d. Fourth priority shall be given to weekly publications. e. Fifth priority shall be given to monthly publications. D. Location prioritization exclusive of pre -existing selection criteria. As between publications exclusive of the pre - existing selection criteria, the Director shall adhere to the following additional criteria: 1. First priority shall be given to daily publications published at least five days a week. 2. Second priority shall be given to weekly publications published between one and four days per calendar week. 3. Third priority shall be given to publications published one day per calendar week. 4. Fourth priority shall be given to monthly publications published between one and four days per calendar month. E. Location assignment by lottery. The Director shall approve newsracks by lottery in the event that both (i) two or more publications having the same level of priority seek the same location for a newsrack; and (ii) there is insufficient space at the location to accommodate all such publications. The lottery shall be conducted by placing into a container the names of all of the applicants having the same level of priority and drawing names from the container one at a time until the number of available newsrack spaces at the location reaches zero. The Director shall give advance written notice to the applicants of the time and place of the lottery, and shall allow members of the public to witness the lottery. 9M ORDINANCE NO F. Space prioritization. In respect to the vertically stacked newsracks, the applicant shall indicate on the application, their preference to using the top or bottom space. In determining which publications shall be permitted in the upper or lower newsrack space at a particular location for which demand for the upper or lower newsrack space exceeds supply, the Director shall conduct a lottery by placing into a container the names of all the applicants seeking the upper or lower space, and drawing names from the container one at a time until the number of available top and /or bottom newsrack spaces at the location reaches zero. The Director shall give advance written notice to the applicants of the time and place of the lottery, and shall allow members of the public to witness the lottery. Section 7. Code Amendment Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended by adding a new Section 12.16.145 to read as follows: 12.16.145 Impoundment of vertically stacked or freestanding M100 newsrack. In lieu of impounding a newsrack that is connected to another newsrack due to vertical stacking, or the freestanding M100 placement, the Director shall impound the contents of the offending newsrack. In lieu of selling or otherwise disposing of a newsrack whose contents have been impounded, the city shall pay the owner thereof the fair market value for the offending newsrack and such newsrack shall thereafter belong to the city for disposal as deemed appropriate by the Director. In all other respects, the impound procedures of this chapter shall be applicable. Section 8. Code Amendment Section 12.16.150 (Appeals) of Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended to read as follows: 12.16.150 Appeals. A. Any permittee or applicant, may, within ten working days of the mailing date of the copy of the Director's decision and order, appeal such decision to the city council by filing a written notice of appeal with the city clerk. B. An appeal shall set forth in writing the basis upon which the appellant believes there was error or abuse of discretion on the part of the department. The city clerk shall advise the department of the appeal and the department shall, as soon as practical, transmit a copy of its file, decision and order, to the clerk of the city council, who shall set the matter for hearing within thirty calendar days. C. Following the hearing on the appeal, the city council shall make written findings in support of its decision, which decision shall: 1. Affirm the department's decision and order and impose impound fees; 10- ORDINANCE NO._ 2. Modify the department's decision and order, with or without imposing impound fees, and /or refer the matter back to the department; or 3. Reverse the department's decision and impose no impound fee. 4. In the event of an appeal of a permit denial, affirm, reverse or modify the Director's decision. r Section 9. Code Amendment Section 12.16.160 (Costs) of Chapter 12.16 (Regulation of Newsracks) of Title 12 (Streets, Sidewalks and Public Property) of the Buena Park City Code is hereby amended to read as follows: 12.16.160 Costs. The installation, maintenance, replacement, removal and relocation of newsracks, shall be at the sole expense of the permittee. Upon removal of any newsrack, the permittee shall at his or her sole expense cause the public right -of -way to be repaired to its original condition and in conformity to the surrounding area. If the permittee fails to make such repairs within ten working days of removal, the work may be done by the city and charged to the permittee. Section 10. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remainder of the Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. Section 11. Certification and publication. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law. PASSED, APPROVED AND ADOPTED this day of 2002, by the following called vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS ABSTAIN: COUNCIL MEMBERS: Mayor 11- ORDINANCE NO._ ATTEST: I, Shalice Reynoso, City Clerk of the City of Buena Park, California, do hereby certify that the foregoing ordinance was introduced at a regular meeting of the Council of the City of Buena Park held on the day of 2002, and was finally passed at a regular meeting of the City Council of the City of Buena Park held this day of 2002. City 12-