BACKGROUND
Sometime in the early 1970’s the City Council adopted the North Downtown Business District Encroachment Policy as Division 8-03-002 of the Flagstaff City Code. This ordinance, which was updated in 1996 and 1997, established standards and procedures for the review and approval of commercial encroachments (including sidewalk cafes and peddlers) as well as for permitted encroachments by certain structures (including, for example, overhead encroachments, excavations, and basement access) and encroachments by other activities and objects such as construction, bicycle racks, newspaper vending machines, etc.
 
Division 8-03-002 was specifically written to allow sidewalk cafes and sidewalk vending carts only in downtown Flagstaff, and hence no such encroachments may be permitted in other areas of the City, including the Southside. Many existing Southside businesses have been frustrated because of their inability to establish sidewalk cafes in public right-of-way.
 
Until late-2007, this Division was administered and enforced by two Programs within the Community Development Division. Code Compliance Program staff was assigned to administer encroachment permits for sidewalk cafes while Private Engineering Program staff reviewed permits for encroachments for construction (driveways and utilities), peddlers, and trash dumpster placement associated with construction. In early-2008 the review and administration of all encroachment permits were consolidated under the purview of the Private Engineering Program staff, a practice that is current today. Some examples of sidewalk cafes already permitted in the downtown area are listed below with photographs of these permitted encroachments included in Attachment A.

• Cuvee’s 928 (Heritage Square)
• Monsoon (Heritage Square)
• Collins (Corner of Route 66 and Leroux Street)
• San Felipe’s Cantina (Leroux Street)
• Maloney’s Tavern (Corner of Leroux Street and Aspen Avenue)
• Mountain Oasis International Restaurant (Aspen Avenue)

City staff has been working on permitting issues associated with allowing outdoor dining areas on a portion of Heritage Square for Cuvee’s 928 and Monsoon since 2006. As Heritage Square is not public property per se – it is owned by the Hopi Tribe and administered and maintained by the City of Flagstaff for public use – after some negotiation lease agreements were eventually signed between these business owners and the City in 2011 for each requested encroachment. These lease agreements required the restaurants to reimburse the City for the use of the Heritage Square property. This created an unfairness issue because while Cuvee’s 928 and Monsoon were required to pay for the use of public property for their sidewalk cafés, there is no mechanism in place established in Division 8-03-002 or elsewhere in the City Code for other sidewalk cafes to have to compensate the City for the use of public property.
 
Following Council discussion of this issue some months ago, staff from the City Attorney’s office and the Community Development Division began to develop preliminary amendments to the code. The draft ordinance incorporates ideas for simplifying and clarifying an approach for the review and issuance of permits for sidewalk cafes and sidewalk vending carts in most commercial zones within the City. This draft is still unfinished, and additional work will be completed following a discussion with the Council to ensure that from a policy perspective, staff is on the right track. The Council work session will also provide an opportunity for interested property owners and business owners to share their ideas and perspectives on the proposed ordinance amendments.
 
OVERVIEW OF DRAFT ORDINANCE – AMENDMENTS TO DIVISION 8-03-002, SIDEWALK CAFES AND COMMERCIAL ENCROACHMENTS
Staff has completed preliminary amendments to Division 8-03-002 of the Flagstaff City Code, (see Attachment B). Currently this Division is called “North Downtown Business District Encroachment Policy.” It provides standards and procedures for the review and approval of commercial encroachments (including sidewalk cafes and peddlers) as well as for permitted encroachments by structures (for example, overhead encroachments, excavations, and basement access) and encroachments by other objects (dumpsters placed within the right-of-way associated with construction, bicycle racks, newspaper vending machines, etc.).
 
The revised Division 8-03-002 is now tentatively renamed “Sidewalk Cafes and Sidewalk Vending Carts”. As the header on the top of the first page of the ordinance states, this draft is incomplete as revisions have only been prepared for the two areas that staff was directed to address, namely sidewalk cafes and sidewalk vending carts. Once consensus has been reached on sidewalk cafes and sidewalk vending carts, the remaining sections for which minimal or no amendments are needed with regard to other encroachments (e.g. bicycle racks and structural elements) will be included for final review and adoption by the Council. At this time the name of the division may change to reflect the permitting of all encroachments into public right-of-way.
 
An Overview of the Draft Amendments to Division 8-03-002, Sidewalk Cafes and Sidewalk Vending Carts with Staff Comments and Observations
As mentioned previously, while the attached draft ordinance is incomplete (Attachment B.), it does provide sufficient detail for an informative discussion with the Council on the need for, and extent of, proposed revisions to existing Division 8-03-002.  This draft is based on some of the provisions in Division 8-03-002 which have been kept, as well as ideas from a variety of other cities, including Portland OR, Seattle WA, Salt Lake City UT, Minneapolis MN, and Redwood City CA. In the narrative below, staff will describe the principal sections and provisions of the proposed draft ordinance, and the issues that may require Council policy discussion and direction to staff. The current version of Division 8-03-002 (North Downtown Business District Encroachment Policy) is attached as Attachment C.

1. Reorganization of the draft. Staff suggests that the current draft ordinance will be reorganized so that, for example, the definitions and appeals sections will be consolidated and certain sections will be rearranged so that the document is more logically organized. The definitions will also be arranged alphabetically.
    
2. Illustrations. The final version of the ordinance will include illustrations to make it easier to understand key terms, such as “area of operation” and “clear pedestrian zone.”
    
3. Applicability. The proposed standards apply to all commercial zones in the City except for the Suburban Commercial (SC) Zone. This is an important difference from the current standards which apply to the Downtown area only which is designated as the Commercial Business (CB) Zone. The proposed ordinance, therefore, would allow business owners in the Southside neighborhood or elsewhere in the City to apply for a sidewalk encroachment permit.
    
4. Types of encroachments. The draft ordinance provides standards for two specific types of encroachments, namely sidewalk cafes and sidewalk vending carts (conducting a business on City sidewalks unlawful without a permit). Permits for these encroachments will be administered by Comprehensive Planning and Code Administration Program staff. Staff from the Private Engineering Program will continue to manage “small permits;” i.e., work by public and private utilities in the right-of-way, driveway construction, and trash dumpsters placed in the right-of-way when there is no room on a property for them during construction. These standards will be carried forward from the current code into the revised draft ordinance.
    
5. Application fee and permit fee. The draft ordinance contemplates that all applications for sidewalk cafes and sidewalk vending carts will be required to pay an “application fee” to cover the administrative costs of accepting, reviewing and issuing a permit by staff, as well as a “permit fee” to compensate the City for use of public sidewalks for commercial purposes. The need for this latter fee (which perhaps should be more correctly called a “lease rate”) arose when it was realized that sidewalk cafes located on Heritage Square were required to pay a license fee for the use of this public space, whereas all other restaurants that had established seating areas on the sidewalks elsewhere in downtown where not required to pay such a fee. Staff will be completing a preliminary appraisal and analysis to determine the amount of this fee and to ensure that it is fair and equitable. There are two possible approaches for establishing this fee/lease rate amount; firstly, a separate fee for the Central Business District could be established (i.e., that area bounded by Columbus Avenue/Switzer Canyon Drive to the north, Butler Avenue to the south, Park Street to the west, and Elden Street to the east) with a different fee to be applied to the remainder of the City, or secondly, a single aggregated fee that would apply citywide could be determined.
   
   Either way, staff recommends that an appropriate and equitable fee to be paid for the use of City public property by a sidewalk café and a sidewalk vendor is appropriate.
    
6. Maintenance. For at least the past 5 years, the City Public Works Division has not provided routine cleaning services for downtown Flagstaff sidewalks. Staff proposes, therefore, that it should be the responsibility of the permit holder who has been issued a permit for a sidewalk cafe or sidewalk vending cart to keep the sidewalk area clean and maintained free of litter, grease, and other stains. In addition, staff suggests that consideration should be given to requiring an annual maintenance deposit from proprietors of sidewalk cafes or sidewalk vendors which could be used for cleaning and maintenance of the area used. 
    
7. Permitting requirements and conditions of permits. The draft ordinance establishes that a permit is required for the use of public sidewalks for sidewalk cafes and sidewalk vending carts. It also establishes minimum submittal requirements and procedures for review. After further review of some other city’s codes, additional refinements to the text in this section may be included in the final ordinance, and staff suggests that the draft ordinance be reorganized so that all standards relevant to a permit and its review are located together. For example the standards for denial, revocation, or suspension of permits could be moved closer to or within a separate permitting section.
    
8. Denial, revocation or suspension of permits. This section provides a procedure and standards for the denial, revocation or suspension of permits for sidewalk cafes and sidewalk vending carts.
    
9. Location rules. Sidewalk cafes permitted under the current Division have been successful over the past years that staff has administered sidewalk café encroachment permits. Not only do the sidewalk cafés add to the ambiance and character of downtown Flagstaff, the standards in place have ensured that the encroachments do not constrict the sidewalk such that it is difficult for pedestrians to use them, especially those individuals who are mobility impaired. The draft Division is written based on lessons learned through the application of the current Division as well as best practices from other American cities that also permit sidewalk cafes and sidewalk vending carts. The new code more clearly prescribes standards for minimum sidewalk width and a clear pedestrian zone relative to a defined area of operation for a sidewalk cafés. Allowances are also provided for pinch points around elements such as poles or posts supporting signs. The final ordinance will include diagrams to clearly illustrate these terms.
    
10. Standards for barriers defining sidewalk cafes. Arizona liquor laws require that barriers are installed to define an area in which alcohol is served. For this reason, almost all of the current sidewalk cafes permitted in the downtown area have installed some form of barrier to identify the outdoor seating area. There are no minimum standards in the current code or the revised draft code regarding the design and placement of barriers. Staff suggests, therefore, that the final ordinance should include standards that for example, require them to be (1) compatible with the building (for example, the Zoning Code addresses a number of elements like materials, color, details, etc.); (2) compatible with the district in which they are located; (3) be made of permanent architectural materials; and, (4) not permanently attached to the building. Staff has discussed an idea that within the downtown and other historic districts, all permits for sidewalk cafes where barriers are required would be reviewed by the Historic Preservation Officer to ensure consistency with Heritage Preservation Standards.

11. Liability and insurance. Typical provisions for public liability and property damages insurance are included in the draft ordinance. Further discussions with the City’s risk management staff are needed to ensure that all issues are appropriately addressed in this section, especially with regard to the consumption of alcohol within the area of operation of the sidewalk café.
     
12. Sidewalk vending carts. The location and permitting regulations for sidewalk vending carts are slightly different to those for sidewalk cafés. They include, for example, specific location standards for vending carts including separation requirements, maximum area and height requirements, requirements for approvals from the Fire Marshall and County Health Department, as well as standards for what goods or products may be sold. In addition, similar permitting, insurance, and processing standards to those established for sidewalk cafés are included. As written the draft ordinance only establishes a separation standard for food vendors from restaurants. It is suggested that a similar separation standard be included for all vendors.
    
    Consideration should also be given to requiring review by the Historic Preservation Officer of permit applications for sidewalk vending carts as described in #10 above.
     
13. Extension of a business onto the sidewalk. One aspect of encroachments onto a sidewalk that is not yet considered in the proposed draft ordinance is that of a business other than a sidewalk café that uses the sidewalk to display merchandise. In the downtown area there are a number of businesses that routinely place a clothes rack, book case, or other display outside of their store on the sidewalk. This is an issue that warrants further discussion with the Council; e.g., should a business be able to encroach onto a public sidewalk for the purposes of advertising goods for sale, and if so, under what circumstances and standards, and what permit fee, if any, should be paid?    
    
     
14. An idea - use a parking space for dining? Many American cities are experimenting with novel ideas in their commercial and downtown districts to provide an enhanced pedestrian experience, more ambiance, activity, and vitality on downtown streets, and as a by-product, increased revenues to downtown businesses. Examples of some of these ideas (which are often referred to as “Tactical Urbanism” in the planning literature – see a copy of the blog posted by Nate Berg in Attachment D.) include closing a street temporarily to hold a class or public event or converting a parking space(s) into a temporary park. The cities of Portland, San Francisco, Philadelphia and New York have taken this a step further by dedicating a parking space(s) for outdoor seating for adjoining restaurants. This works particularly well in cities (like Flagstaff) that have narrow sidewalks. The second article in Attachment D. (Portland Street Seats program expands to allow more restaurants to place seating platforms in parking spaces) provides details on the City of Portland’s program. A third article – “Turning Parking into Parklets” – also provides some interesting ideas. While there are obvious issues and challenges with the concept of removing a parking space in downtown Flagstaff and using it for commercial purposes, staff thought it appropriate to at least alert the Council that this is a solution being implemented in many U.S. cities of all sizes, and if there is support for exploring this idea further, staff will do so.

A POSSIBLE PATH FORWARD
Assuming that a majority of the Council supports the draft ordinance that provides revised standards and procedures permitting sidewalk cafes and sidewalk vending carts within City rights-of-way, and direction is provided to staff to complete amendments to this Division of the City Code, the path forward described below is suggested:

1. Prior to the Council’s October 8^th work session, copies of the draft Sidewalk Cafes and Peddlers ordinance was provided to the Flagstaff Chamber of Commerce, Downtown Business Association, Friends of Flagstaff’s Future, Sunnyside Neighborhood Association, and all businesses who already have, or should have, a permit allowing them to operate a sidewalk café or vending cart in public right-of-way.
2. October 8^th Council work session will provide an opportunity for interested members of the public to share their ideas on the preliminary draft being presented to the Council.
3. Staff completes draft amendments to Division 8-03-002 of the City Code based on Council direction and comments received at the October 8^th work session.
4. Further civic engagement [INFORM, CONSULT, INVOLVE] with outreach to interested citizens, stakeholders, and businesses, including the Heritage Preservation Commission.
5. October 29, 2013 – Council work session/agenda review for November 5^th Council meeting.
6. November 5, 2013 – Council public hearing/first reading of adopting ordinance
7. November 19, 2013 – Council second reading of adopting ordinance and adoption.
8. December 20, 2013 – Effective date of amendments to Division 8-03-002.

Staff has suggested this schedule for adoption of these City Code amendments so that the ordinance will be in effect before December 31, 2013 which means that interested owners of bars, restaurants, and sidewalk vending carts will be able to apply for a Sidewalk Café or Sidewalk Vending Cart Permit in early 2014.
 
 
CONCLUSION
The purpose of the October 8^th Council work session is to seek Council direction on proposed amendments to Division 8-03-002 of the Flagstaff City Code to provide updated standards and procedures for permitting sidewalk cafes and sidewalk vending carts within City rights-of-way.