Ordinance 37900006.900000
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ORDINANCE NO. 3790
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, AMENDING THE PROVISIONS OF
CHAPTER 18.70 RELATING TO STREET USE AND
ENCROACHMENT PERMITS TO PROVIDE CHANGES AND
CLARIFICATIONS REGARDING THE ISSUANCE OF
PERMITS AS THEY RELATE TO OUTDOOR DINING AND
ARTWORK IN THE PUBLIC RIGHT OF WAY, AND FIXING
A TIME WHEN THE SAME SHALL BECOME EFFECTIVE.
WHEREAS, in an effort to develop and encourage tourism, enliven the
streetscape of Edmonds and provide for business development within the downtown area, the
City of Edmonds has enacted provisions relating to outdoor dining, and private and public
artwork installed in the right of way; and
WHEREAS, legitimate concerns have been raised regarding the use of the public
right of way; and
WHEREAS, the City Council deems it to be in the public interest to clarify the
provisions relating to outdoor dining in order to ensure that public sidewalks remain open and
available for foot traffic, their primary purpose and that adequate compensation is received; and
WHEREAS, the streetscape can also be enhanced by private and public art within
the right of way, so long as the artwork does not impair the public's use of the right of way for
travel, by foot, bicycle and motor vehicle, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN
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AS FOLLOWS:
Section 1. Chapter 18.70 Street use and encroachment permits is hereby repealed
and reenacted to read as follows:
Chapter 18.70
STREET USE AND ENCROACHMENT PERMITS
18.70.000 Permits required.
18.70.010 Exemptions.
18.70.020 Applications.
18.70.030 Review.
18.70.040 Revocation.
18.70.050 Fees.
18.70.000 Permits required.
No person shall use or encroach upon any public place without
obtaining a permit from the Development Services Director or City
Engineer.
A. Encroachment Permit. An Encroachment Permit is
required to encroach upon any portion of City public space, right -
of -way or easement area with permanent structures. To encroach
means to construct, erect or maintain in, over or under any public
place, right -of -way, easement, roadway, parking strip and /or
sidewalk, including the airspace above them, any structures
permanent in nature, including but not limited to, building
extension, marquee, fence, retaining wall, artwork, or any other
building or structure.
B. Street Use Permit. A Street Use permit is required to use
any portion of public space or city right -of -way for objects which
are temporary in nature.
1. To "use" means to place or maintain in, over or
under any public place, right -of -way, roadway, parking
strip and /or sidewalk, including the air space above them,
any temporary or movable object.
2. "Temporary in nature ", in reference to street use
permits, means not having or requiring permanent
attachment to the ground, or involving structures which
have no required permanent attachment to the ground.
3. "Temporary object" for the purposes of this chapter
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refers to all objects placed in the right of way that are
temporary in nature including but not limited to chairs,
tables, planters, sandwich boards, benches, stanchions,
rope, and fencing.
None of the above definitions shall be interpreted to prohibit the
parking of a properly licensed vehicle within the parking strip
adjacent to their property line of sight, and street plantings.
18.70.010 Exemptions.
This chapter shall not apply to:
A. Any noncommercial use (such as residential, churches,
schools, etc.) in areas zoned residential, which does not involve a
building or structure. This exemption shall not be construed to
grant any vested right of use or to permit the continuation of such
use and such uses are hereby deemed and declared to be
permissive and shall be promptly removed upon the order of the
City of Edmonds.
B. Installation of fences across City utility easements, if the
City's easement is not for vehicular access and a point of access
(e.g. gate) is provided to allow the City a point of entry to the
easement area. Fences shall be permitted in accordance with this
chapter and the provisions of this code prior to their installation.
18.70.020 Applications.
Applications for Street Use or Encroachment permits shall contain,
in addition to the information required under any other applicable
city code, the following information:
A. Street Use Permit.
1. Architectural Design Board approval, when
applicable.
2. Complete application requirements for Edmonds
Art Commission, when applicable.
3. Certificate of insurance.
4. Complete Street Use permit application.
B. Encroachment Permit.
1. Critical Areas determination, when applicable.
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2. Complete application requirements for Edmonds
Art Commission, when applicable.
3. Architectural Design Board approval, when
applicable.
4. Partial site plan, to be recorded with Snohomish
County, clearly showing proposed encroachment,
private property lines, all existing structures and
driveways, easements and/or public property
(developed or undeveloped).
5. Legal Description, including copies of all recorded
easements on the property.
6. Elevation view or side view of the proposed
encroachment.
7. Ownership. Evidence showing the applicant to be
the agent record owner of the property immediately
adjoining the public place or right -of -way. An
application to place art work in the public right of
way will be exempt from this requirement.
8. Certificate of insurance.
9. Complete Encroachment Permit application.
10. Complete Encroachment Agreement, to be recorded
with Snohomish County.
C. Such other information as the City Engineer or designee of
the Development Services Director shall require.
D. The Encroachment Agreement shall require prompt
removal of the encroachment by the applicant at his/her /its expense
upon reasonable demand by the City Engineer and be legally
adequate for recording in the land records of Snohomish County
and the chain of title of the applicant's property. Such
encroachment agreements may be executed as acknowledged on
behalf of the City by the City Engineer and recorded by the City
Clerk following approval as to form by the City Attorney.
18.70.030 Review.
A. Architectural Design Board. Any application for a permit to
construct, erect or maintain an awning, marquee, sign or any
structure in a public place may be referred by the Development
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Services Director or his /her designee to the Architectural Design
Board. If referred to the board, the board shall review the plans and
specifications as they relate to Chapter 20.10 ECDC.
Applications for mobile street vending units shall be reviewed in
accordance with ECC 4.12.055 by the Architectural Design Board.
B. Edmonds Arts Commission. Applications for an
Encroachment permit or a Street Use Permit to install art in the
public right of way shall be subject to the review and
recommendation of the Edmonds Arts Commission. No art shall
be permitted in the public right of way except as expressly
permitted herein. Artwork that is reviewed under an
Encroachment permit shall be exempt of the requirements of
Chapter 18.70.020 B sections 5, 6, 7 and 10.
1. The terms "art" or "art work" as used in this section
shall refer only to a work of visual art existing in a single
copy or in multiple copies of 200 or fewer that are
consecutively numbered by the author and bear the
signature or other identifying mark of the author.
2. The terms "art" or art work" do not include:
a. Any poster, map, globe, chart, technical
drawing, diagram, model, applied art, motion
picture or other audiovisual work, book, magazine,
newspaper, periodical, data base, electronic
information service, electronic publication, or
similar publication;
b. Any merchandising item or advertising,
promotional, descriptive, covering, or packaging
material or container.
C. Architectural details such as masonry,
ironwork, or other building fixtures or materials;
d. Any portion or part of any item described in
subparagraphs (A), (B) or (C);
e. Any work not subject to copyright
protection under the Visual Artists Rights Act, as
codified under federal copyright law, Title 17, as
the same exists or is hereafter amended.
3. An Encroachment permit or Street Use permit
requires determination of public benefit. The Edmonds
Arts Commission (EAC) is mandated in Chapter 10.20
ECC to advise the City on matters pertaining to art. When
the proposed encroachment or street use is art, EAC will
review and make written recommendations to the
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Community Services Director and City Engineer for use
and consideration in permit issuance. (See C below.)
4. The public right of way is a traditional forum for
public expression. By this permit program the City
acknowledges that it is approving uses in a limited public
forum. Art, like other exercises of First Amendment rights,
may be limited by reasonable time, place and manner
restrictions. In this case, these criteria will be utilized to
protect the safety of the public who use the right of way for
pedestrian or vehicular traffic and to insure that the City
provides for accessibility for the disabled. No
recommendation or denial shall be based upon the content
or message expressed by an artist or in a work of art as long
as there is no commercial content. Applicants are
encouraged to coordinate their artwork with the design of
the building and the historic and pedestrian oriented
character of the downtown area.
5. Specific submission requirements for EAC review
include, but are not limited to:
a. Site plan sketch showing locations of
artwork;
b. Minimum 1/4 inch scale rendering of the art
concept or art component, including at least one
elevation showing the art in context or comparable
photographs of actual artwork in context;
C.. Material /color samples;
d. Model (optional);
e. Written proposal: 7 copies of a written
proposal in 8 1/2 x 11 inch format to include:
• A description and summary of a final design
proposal for the artwork for the proposed
project;
• Detailed maintenance requirements;
• Schedule for development, fabrication, and
completion;
• Artists' resume/background
• Evidence of assumption of liability by
applicant or designee;
For proposal to be reviewed at next scheduled
EAC meeting, a complete submission of all
requirements must be received a minimum of 10
days prior to the date of the meeting
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Additional requirements may be requested based on staff input or
information sought by EAC members.
6. Review Criteria.
Art in public places may be art standing alone, modifiers
or definers of space, functional, or used to establish identity. The
use of art as an integral part of the structure and function of
building is encouraged e.g. the interpretation of light fixtures,
benches, hardware, doors, surface finishes, walkways, gates, and
other features with the artwork or as a part of the artwork, although
only some of these elements would occur in the public right of
way.
The criteria for review of Encroachment or Street Use Review
artwork submissions are as follows:
a. Constructability of proposed artwork. No
artwork shall impair disabled accessibility and
barrier free design requirements.
b. Artist's credentials and recognition.
C. Durability and craftsmanship in fabrication
and production quality - quality of the work is a
high priority.
d. Due consideration shall be given to the
structural and surface soundness of artworks, and to
their permanence, including ability to withstand
age, theft, vandalism, weathering, and maintenance
and possible related repair costs. Careful
consideration shall be given to the materials used
and the appropriateness of those materials for the
conditions of the site.
e. Coordination of the artwork with the design
of the building and the historic and pedestrian
oriented character of the downtown area is
encouraged.
f. Maintenance /conservation plan.
g. Relationship to other existing artwork in
vicinity.
h. No commercial content - artwork shall not
be used as signage (see definition of
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signage).
C. Issuance by the Development Services Director or City
Engineer. The Development Services Director, City Engineer or
their respective designee, may administratively, without hearing,
approve a Street Use or Encroachment permit if:
1. The proposed use shall not interfere with vehicular
or pedestrian traffic, including but not limited to the following
requirements:
a. No portion of the public right -of -way
designed and intended for vehicular traffic or
parking shall be permanently occupied;
b. Requirements of the State Building Code,
including but not limited to all provisions relating to
disabled accessibility and barrier -free design
requirements shall be met;
C. Any mobile vending units shall be properly
licensed pursuant to Chapter 4.12 ECC;
d. Permit application fees have been paid. (see
section 18.70.050 of this chapter);
e. A "Clear Zone" must be maintained on
public sidewalks or walkways. A Clear Zone refers
to an area 7 feet in height and 5 feet in width
providing a level, safe walking surface along the
public sidewalk. Clear zone on sidewalks shall not
include any curbing, planting strips or ramps. For
tables and chairs placed in the public right of way,
the Clear Zone can be reduced to 4 feet in width in
front of obstacles (trees, street lights, sign posts,
etc).
f. All temporary objects shall be removed from
the right of way on twenty four hours notice to
accommodate public events. Temporary objects are
subject to removal in the event of an emergency;
and
g. All temporary objects, excluding approved
awnings and wall signs, that project more than 36
inches into the right of way shall be removed each
day at the close of business.
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2. Exclusive Bistro and Outdoor Dining. In an effort
to enhance street life of the city and serve both an economic
development purpose as well as enhance the livability of the City's
urban core, Exclusive Bistro and Outdoor Dining shall be allowed
pursuant to ECDC 17.70.040.
a. For purposes of this section the following
terms are defined as;
i. "Exclusive Bistro and Outdoor
Dining" shall refer to a properly zoned and licensed
food or beverage service establishment that uses the
public right of way to serve only its customers at the
exclusion of the general public.
ii. "Barrier" shall refer to any
temporary object or objects (e.g. stanchion, rope,
fencing, planters) used to establish an exclusive
Bistro and Outdoor Dining area.
b. All conditions and requirements set forth in
this chapter have been met and adequate compensation for
the exclusive use of the public right of way and applicant
fees pursuant to ECDC 18.070.050 have been paid.
C. All barriers shall be removed each day from
the right of way at the close of business.
d. The design and use shall comply with all
requirements of State law, City ordinance and City policy
including but not limited to:
i. Washington State Liquor
Control Board (WSLCB) and Snohomish County
Health Division (SCHD). When applicable the
business shall provide a written approval from the
WSLCB and /or SCHD for use of public rights of
way;
ii. ECDC Section 17.70.040
Bistro /Outdoor Dining; and
iii. All litter and nuisance
regulations, including but not limited to RCW
70.93.060 and ECC Chapter 6.40.
3. The Design Board has reviewed and approved any
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proposal which includes a request to construct, erect or maintain an
awning, building, sign or any building or structure;
4. The proposal will not unreasonably interfere with
the rights of the public; and
5. The proposal (if for an Encroachment permit) either
benefits the public interest, safety or convenience (e.g. supports or
protects the city street, reduces pedestrian hazards) or is an
accessory structure such as a fence normally associated with
residential use of the property and fully complies with the
requirements of subsections (B) (1) through (3) of this section.
D. Bay Windows, Decks, and Related Architectural Features.
In an effort to allow for more creative designs and a better overall
appearance in the downtown area, bay windows, decks, and related
architectural features may encroach into the public right -of -way
within the central business district or any other zone in which no
setback from the lot line is required, subject to the following
requirements:
1. All conditions and requirements set forth in this chapter
have been met and adequate compensation has been paid;
2. The encroachment shall not occur over alleys;
3. The building encroachment shall not project more
than two feet (24 inches) into the right -of -way;
4. The encroachment shall not exceed 30 percent of
the length of the facade on any one side of the building;
5. The encroachment shall provide for a minimum
clearance height of eight feet over any pedestrian right -of -way and
a minimum clearance height of 11 feet over any vehicular right -of-
way, whichever is greater;
6. The encroachment shall be approved by the
Architectural Design Board as contributing to a modulated facade
design which enhances the variation and appearance to the public
of the overall building design and public streetscape.
E. Appeal. The decision of the Development Services
Director, City Engineer, or their respective designees, may be
appealed to the hearing examiner as a Type II proceeding under the
procedures set forth in Chapter 20.06, provided, however, that the
establishment of compensation for use of the public right -of -way is
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a legislative decision of the city council and is not subject to
judicial review.
F. Insurance Requirement. When the application is for use or
encroachment unto a public right -of -way including but not limited
to, streets, roads, alleys, trails, sidewalks, bike paths, pedestrian
easements, and any other easement intended for the use of the
public, the applicant who operates a business or commercial
operation shall be required to provide and continually maintain
during the term of the permit a certificate of insurance naming the
city as an additional insured, with respect to liability, and
providing that it shall be primary as to any other policy of
insurance. The policy must contain the additional insured
statement, coverage amounts and cancellation notification
indicated on the sample insurance form provided by the city. In
addition, a business and commercial applicant, as well as all
residential or non - profit applicants shall sign a covenant to hold
harmless and indemnify the city which will be recorded and run
with the land in a form approved by the city attorney.
G. Nothing herein shall be interpreted to permit the base or
ground support for any sign to be located upon or attached to the
ground within the public right -of -way.
18.70.040 Revocation.
A. Except as provided below, all permits approved under this
chapter shall be temporary, shall vest no permanent right and shall
be issued and may in any case be revoked at the sole discretion of
the city upon 30 days' notice, or without notice, in the event any
such use or occupation shall become dangerous; any structure or
obstruction so permitted shall become insecure or unsafe; shall
become a public nuisance; or shall not be constructed, maintained
or used in accordance with the provisions of this chapter. The
determination by the City Engineer that a structure is dangerous,
insecure, unsafe, a nuisance or has not been constructed, used or
maintained in accord with this chapter shall be conclusive.
B. Permits shall also be revoked if,
1. Following written notice of the lapse of an
insurance policy required to be maintained by ECDC 18.70.030(F),
the permittee fails to supply a valid certificate of insurance; or
2. Following written notice of the lapse of an annual
application fee, renewal fee, or fees for the exclusive use of the
right of way by ECDC 18.70.050 (B), the permittee fails to bring
fees /account current.
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C. Permits issued for architectural features pursuant to ECDC
18.70.030(D) shall be issued for an initial term of 10 years. A
permit for an architectural feature may be revoked at any time as
provided in subsection A of this section. If revoked before the end
of the 10 -year term, at the will of the city, the holder of the permit
shall be reimbursed for any consideration provided for the permit.
Reimbursement shall not be required if the permit is revoked due
to its having become dangerous, a public nuisance, unsafe or is not
constructed in accord with the terms of permit issuance. Permits
for architectural features shall be automatically renewed, if not
revoked by the city, for additional 10 -year terms subject to such
additional consideration as the city may require.
D. If any such structure, obstruction, use or occupancy is not
discontinued on notice to do so by the city engineer and within the
time period designated, the city engineer may remove any structure
or obstruction, or make , such repairs upon the structure or
obstruction as may be necessary to render the same secure and
safe, at the expense of the permittee, or his successor, and such
expense may be recorded as a lien and otherwise collected in the
manner provided by law.
18.70.050 Fees.
A. Application fees for Street Use or Encroachment permits
are those established by the city council by resolution in its sole
legislative discretion. Application fees shall be paid to the city
prior to issuance of any permit.
B. Fees for the exclusive use of the public right of way are
those established by the city council by resolution in its sole
legislative discretion.
C. There shall be no judicial appeal from a determination of
the compensation to be paid for the use of public right -of -way.
Section 2. Effective Date. This ordinance, being an exercise of a power specifi-
cally delegated to the City legislative body, is not subject to referendum, and shall take effect
five (5) days after passage and publication of an approved summary thereof consisting of the
title.
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APPR ED:
MAJOR G Y HAAKENSON
ATTEST /AUTHENTICATED:
'e- cgl/ ..
CITY CLERK, SANDRA S. CHASE
.... o1 • • 9AM
OFFICE OF H Y AT ORNEY:
BY
W. SCOTT SNYDER
FILED WITH THE CITY CLERK: 04 -16 -2010
PASSED BY THE CITY COUNCIL: 04 -20 -2010
PUBLISHED: 04 -26 -2010
EFFECTIVE DATE: 05 -01 -2010
ORDINANCE NO. 3790
{WSS762874.DOC;1 \00006.900000\ } 13
SUMMARY OF ORDINANCE NO. 3790
of the City of Edmonds, Washington
On the 20th day of April, 2010, the City Council of the City of Edmonds, passed
Ordinance No. 3790. A summary of the content of said ordinance, consisting of the title,
provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, AMENDING THE
PROVISIONS OF CHAPTER 18.70 RELATING TO STREET USE AND ENCROACHMENT
PERMITS TO PROVIDE CHANGES AND CLARIFICATIONS REGARDING THE
ISSUANCE OF PERMITS AS THEY RELATE TO OUTDOOR DINING AND ARTWORK IN
THE PUBLIC RIGHT OF WAY, AND FIXING A TIME WHEN THE SAME SHALL
BECOME EFFECTIVE.
The full text of this Ordinance will be mailed upon request.
DATED this 21 st day of April, 2010.
CITY CLERK, SANDRA S. CHASE
{WSS762874.DOC;1 \00006.900000\ 1 14
Affidavit of Publication
STATE OF WASHINGTON,
COUNTY OF SNOHOMISH } S.S.
The undersigned, being first duly swom on oath deposes and says that she is Principal Clerk of
SUMMARY OF ORDINANCE NO. 3790 THE HERALD, a daily newspaper printed and published in the City of Everett, County of
oft e ity of Edmonds, as ington Snohomish, and State of Washington; that said newspaper is a newspaper of general
circulation in said County and State; that said newspaper has been approved as a legal
On the 20th day of April, 2010, the City Council of the City of newspaper by order of the Superior Courtof Snohomish County and that the notice
Edmonds, passed *Ordinance No. 3790. A summary of the content
of said ordinance, consisting of the title, provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS WASHINGTON,
i
AMENDING THE PROVISIONS OF CHAPTER i8.70 RELATING
TO STREET USE AND ENCROACHMENT PERMITS TO PRO- Summary of Ordinance No. 3790
VIDE` CHANGES AND CLARIFICATIONS REGARDING THE
ISSUANCE OF PERMITS!AS.THEY RELATE TO OUTDOOR
DINING AND ARTWORK INTHE PUBLIC RIGHT OF WAY; AND Street Use and Encroachment Permits
FIXING A TIME WHEN THE SAME SHALL BECOME EFFEC-
TIVE..
The full text of this Ordinance will be mailed upon request.
DATED this 21st day of April, 2010.
CITY CLERK, SANDRA S. CHASE
Published: April 26; 2010.
a printed copy of which is hereunto attached, was published in said newspaper proper and not in
supplement form, in the regular and entire edition of said paper on the following days and
times, namely:
April 26, 2010
and that said news aper was regulars 'stributed its subscribers during all of said period.
Principal Clerk
y Subscribed d sworn Vbefore me this 26th
@ ani day of April, 2010
APR 2 9 2010 ..
Notary Public in and forth Late_ iF � ig a Everett, S homish
4 3� 7 f sray� County.
INdus YS n !.
p ai' a O'(a )+1�ty try
Account Name: City of Edmonds Account Number. 101416 ! �i ,1;tt _ i �' ` Number. 0001693597
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