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HomeMy WebLinkAboutMiscellaneous t y--_ - - . ,~; -- ~~~. _ ~ ~~ ~ ~~ i' CITY OF COLLEGE STATIOI`I LEGAL DEPARTMENT POST OFFICE 8OX 9960 1101 TEXAS AVENUE COLLEGE STATION, TEXAS 77642-9960 (409) 764-3507 MEMORANDUM TO: Elrey Ash, Director of Economic. and Development Services ' r Assistant Ci Attorne FROM. Roxanne Nemc~k, Senio ty Y RE: Ilse of Rights-of-VVay and Easements for Private Improvements and Facilities in Conjunction with Landscaping DATE: ' September 5, .1995 Recently staff submitted a RFLA to request the amendment of an existing franchise agreement with TAC Realty for the installation of improvements in the .city's rights-of- way: and easements for the use and benefit of Woodcreek Subdivision. Specifically,. these improvements were lighting, signage and sprinkler systems. Ivlr. Darmitzel, the owner and developer, installed these improvements without the City's knowledge or permission. Thus, TAC violated its franchise agreement. Staff has chosen not to prosecute Ivlr. Darmitzel or revoke his franchise, but instead, to require him to amend his .franchise. to include these facilities. .While working on the franchise amendment. staff raised a secondary and related policy issue: -- Is there a way to authorize and regulate. -these type. of improvements without a franchise?i Staff explained that with the upcoming. allocation of $100,000 in the CIP budget for streetscape and landscaping they;had two objectives. :First to streamline, the process for allowing these amenities .and second, to encourage private ..developers .and individuals to participate in the streetscape program. Accordingly, I am writing this memorandum to address the broader policy issue staff raised -- method of regulation. for these particular' amenities? As requested by Development Services staff T have 1 Staf j'has explained that they are interested. in an alternative to franchising for the following reasons:. a) Ease of administration b) Encouraging the installation of landscaping by private developers in conjunction with the streetscape program by enabling these improvements through a more streamline process than through a franchise~which is time-consuming because it requires three public hearings and Council review and approvat. Staff would prefer to :handle thisadministrativelyinstead ofbringing into Council. 2 With regard td the pending RFLA for the TCA franchise amendment, I am waiting for information from sta,,~`' responding to several. questions that have been posed so .that I can include this. information in the franchise amendment. rrx~/c: /ag-sept9S/tae l r Memo to E1rey Ash September 5,1995 ..Page 2 ..~, - - -- ~..~~ researched to try to find alternatives to regulate. landscaping and related amenities for use in conjunction with the future CIP' landscape project.` There are three methods by which the :city. can regulate these improvements in our. rights-of-way. 1) Franchising 2) A :permitting system .established by ordinance 3) Construction and dedication of the improvements to the City by .developer Because staff .indicated .that they are not interested in .pursuing .options 1 and 3 by held on Au t 22 1995 I will not discuss them further in this discussions at a meeting gas , memo. However, I have found alternative No. 2 `as a .result of additional research I conducted ubsequent to the aforementioned meeting .that may satisfy -staffs goal.. The legislature has authorized cities to use or permit certain uses of the right-of-way of certain public streets for trees and decorative landscaping, idewalk-cafes, ornamental entrance facilities structures of historic buildings and bus shelters, drinking fountains,. and other: amenities for the convenience of the public through an ordinance .and permtting system. I, VERNON'S At~rN. CIV. ST., ART. 1085C (:1995 SuPP.). i li 'The Act. provides as follows: Section 1 _.e_ "City" means an incorporated city,. town or village, including a home-rule city. ~' "Public street" means the entire width' between the boundary lines of every way which is held by a city in :fee or by easement or dedication when any part thereof is open to he use of the public for purposes of vehicular travel; provided the term public street shall not include any designated state or federal highway or road or any designated county road. ~~I "Roadway" means that portion of a` public street which is improved,. designed, or ordinarily used for vehicular travel, exclusive. of the: curb, berm, or shoulder.. In the .event '' ublic street includes two or more separate roadways, roadway means .each such. that a p roadway separately... "Sidewalk" means that portion of a public treet which: is between the curb lines, or the II lateral lines of a roadway, and the adjacent property lines and is improved and designed for oris ordinarily used forpedestrian travel. ~, "Sidewalk ,cafe" means an outdoor dining: area located on a sidewalk and containing. j movable ales, chairs, planters, or related appurtenances... rnv/c: /ag-sept95/tac l -- - -- - -- ~. . Memo to Elrey Ash September 5, 1995 l; page 3 ~~ Section 2 The governing body of any. city a subject to the provisions of .this Act, permit any. person owning the underlying fee tle to any real properly upon which any public. street within its corporate limits is situated, or any association or other entity acting with a lease or other express.: written. permission of the said fee title owner, to make use. of the property, :notwithstanding .its being part of a public. street, for any one or more of the following improvements or facilities: (1) the establishment or maintenance or both of trees and decorative landscaping, including landscaping lighting, watering systems, .and other appurtenances for the maintenance: thereof; (2) the establishment or maintenance or .both of sidewalk cafes; .provided that a '' .sidewalk cafe may not be enclosed by fixed walls and shall be open to the air, .except that V it may have a canopy; provided' further that a sidewalk cafe must be abutting and r aratio sanitatio and related services for contiguous to a restaurant m which food p ep n, n, the .sidewalk cafe will be performed; (3) theestablishment or maintenance or both of ornamental gates, columns, or other ornamental works of wood, iron, masonry, earth, or other materials denoting. the entrance V or a latted and recorded subdivision; provided that. such to a neighborhood p improvements may display the name of the subdivision or :neighborhood but shall not contain any commercial advertising or :other sgnage; (4) the. establishment or maintenance or both of any supportive or decorative columns, '' arches, or other structural or decorative feature of any building which is 30 or more years ctural f unusual archite ereunder and o ermit h n for a e of film an a licatio old at the tim g PP P design, character, or significance or of historical value; or (5) the establishment or maintenance or both of transit bus shelters, drinking fountains, benches, and other related amenities for the convenience of the public in the use of the public streets for: pedestrian. or vehicular transpiration. Section 3 ®~~~ ~~ a~ ~~ t rohibits the `im rovements or facilisa Gr~'O~'`~ The Ac p p ..ef't3~~or upon finding by an official of the city who has been designated by ordinance to make such determination that: rr-v7c:/a -se t95/tacl s r /Yt~c~- Memo to Elrey Ash September 5, ..1995 Page 4 ~'{1) the improvement or facility will not belocated on, extend onto, nor. intrude upon any :portion of the roadway; C~{2) the. improvement or facility will not be located on, extend onto, :nor intrude :upon any portion of the sidewalk which is needed for pedestrian use; (3) the design and location of the improvement or .facilities includes all yeas of the planning o m-mm~~e potential harm, injury, or interference. to the public m the .use - public street; ~'`{4) the .:improvement or facility will. not create any hazardous condition or obstruction of vehicular or pedestrian travel upon the public street. .~s es~ ~. ~~°° ~ . The City is not required but fnay by ordinance establish a permit program under the Act. The ordinance must include. regulations the governing body of the city deems necessary or desirable for the protection of the public and utility companies. and other .persons or firms having the right to use the public street at the ite of the applicant's proposed facility. These regulations may include, without :limitation the following: a) ~ construction, maintenance, operation,... and inspection requirements; b) !1 requirements for indemnity agreements by abutting fee owners,. which. agreements shall be covenants running. with the title of the abutting wand; c) ? public liability insurance requirements; d) ~s req ' e ents -for traffic and safety. studies to be provided at the expense of the ~9o Pp scant. or pe 'ttee; e) ~eS authority for ..the governing body to terminate the. permit at its discretion sand without notice to the. pernuttee; f) ~ a provision for conducting. public hearings on the issuance, renewal, or revocation ?? of ...permits, with the notice and reporting expenses .thereof to be borne by the - a plican~ Go ~3+.c ~~ ~ c~.1~.~ ~ ~e P¢~ cins •' ~ ` ao The regu tions must provide Ghat the city or any .utility company.: or other- person authorized by he city may remove all or any part of any facility for which a permit has been issued without liability therefor in the event of a lawful need for the .site or for. access thereto, that 'all facilities or improvements shall comply with the clearance required from structures to utility lines as .provided in a nationally recognized building code at the permittee shall provide a cash or surety bond in a sum sufficient. to cover e 'costs of removal of its facilities or improvements by the city or any public utility upon terms and in an amount which is approved by the city, and that the costs of any relocati~opn 's ~~~~ (~ ~ u ~~,,~Q rrw/c:/ag-sept95/tacl ~n1 h-" of city facilities and improvements or public utility facilities and improvements within. the public streets which. may be .associated with -the installation of any permittee's authorized facilities. and unprovements shall be borne by the permtttee. The city is prohibited `from using. any of its funds or employees with respect. to a facility ~,~ operated by permit, except for inspections or removal. purposes. The city may establish or maintain, with its funds, materials,. equipment, and personneo any of the improvements or facilities described in Subdivision (1) and (5) of Section 2 the Act, and the provisions of the..Act shall not be construed to require the issuance of a permit for any such .improvement or facility established or maintained. by the city; "` 1 ed that the rovsions of Section 3 of the Act shall apply to any such improvement proved p or facility placed by a city upon any public street. The provisions of this Act do not impair the .right of the city or any other person to abate or cause to be abated. any unlawful obstruction or use of any public street, nor: to require any political subdivision of the ...state to .obtain a permit to establish or maintain any improvement or facility which is otherwise: authorized by law.: I believe that this Act is a viable alternative which allows staff to achieve its objectives while protecting the city. The permitting system and .safeguards established in this Act address the issues that have been discussed among the staff. L strongly recommend instituting-a permitting procedure :and regluations listed herein if you choose this option. I would like to point out one disadvantage #o this optionversus a franchise. A franchise allows for negotiation of terms whereas this :ordinance does not. Thus, staff cannot require more or less. through this ordinance than what is expressly- contained in it. However, the advantage of this option is that-staff does not have to `take each application to the. Council after its adoption by Council. If staff is interested in pursuing this option, I will be happy to draft: an ordinance upon a submission of a RFLA. RN:rrw cc: Tom Brymer -Jeff Kersten rrw/c: /ag-sept95/tacl sg Syr d}il( p~ ~f f~~~ ~~ ~ ~ .r~~V ~ Jl~ ~! .N'~ E`1 ~ ff ` Sd~e`? .M°,. c CuiM '"..... J • 2 V s ~ - a .. , w" un ~, Ji i~ ,~ ::,.. , .r r.-d J4., t ~ ~~ ,f a .. ,. ~ +. ~-~'" ,.,P ~'7,.~ GOA~: C`i beaufication throu h ~~, i ~~~ ~' g ~ ~ a ~~ Streetscape /Landscaping ~~~' jam, ;, Ses / •ea ~ • hin " bli .0 ~~`~ : , yeS Is there a proposed sign? 110 V ~, Vs~' ~ _ ~ ~ ~- 3 ~ Applicant must receiv~Franchise ~ y must receive ~ ~ `~ b f • o Eras ` a ~~COst ~\, ZBA Variance yeS oadw ~ ,, ~,~7`J• d /t` S, yn Does the City , p '1 want to own yeS electrical /irrigation / no p e ~ • ~, .Applicant must ' {~ Applicatit-& City receive a . ,~ must agree on a ~!j r 5 ~'1,A, ~ ~~ Franchise C '~"`~ Maintenance Agreement a, . ~ ~~ (r p~r,f ~ f As a part of this policy formation, we need to change'o_rd_inJance #1638 to exempt franchised landscape areas from Section l 1.7 ,L~ (~fl~ 213.~- V'Qv- ~ CZI,~ t,~ -M.Q. ~ 9- ~- ~~ ~'~ L Y S $,Q,.r•~~ l` Lt ~(+~ ~'vr~+'e j ~' ~m~ ~. ~ ` a g y-~ r s ~-n c, `.~ G_OA_L: City. beautification through Streetscape /Landscaping _ -- d start ~ ~,~; ~ ~ ~- t ~~~~ yes. Is there a sig,~ no C~ . Must t'~c~ Franchis ZBA Do w V ce yes have t under r no ~`, roadg ~ ~ ~~UA E ~~~.~ `~ ~~. Do Development ' ~" ~, /-1 want to own Agreement y~~ ~` Must b~ Maintenance Agreement elec/irrig/land- no scaping? ~~ ~' ~~ GL Must Franchise I~,C~~~~T ~-r~ f 4• ~'