Chapter 12.106
NEWSRACKS IN THE PUBLIC RIGHT-OF-WAY

Sections:

12.106.010    Definitions.

12.106.020    Applicability.

12.106.030    Findings—Statement of purpose—Standards.

12.106.040    Newsrack policy in the city—General guidelines.

12.106.050    When permit required—Issuance.

12.106.060    Placement without permit—Exceptions.

12.106.070    Requirements and duties.

12.106.080    Costs.

12.106.090    Congestion control—Guidelines—Allocation of space.

12.106.100    Allocation of space at locations where congestion exists—Impartial allocation process—Notice.

12.106.110    Future reallocation of spaces.

12.106.120    Permits nontransferable—Allocation of newly available space at congested sites.

12.106.130    Priority given to newsracks at congested sites—Drop boxes prohibited in public right-of-way—Permit required.

12.106.140    Appeals from denial of permit, removal, or other conditions required by city.

12.106.150    Authority of city manager.

12.106.160    Removal and impoundment of abandoned or nonconforming newsracks—Redemption fee.

12.106.170    Inventory of existing newsracks—Notice—Effect on enforcement.

12.106.180    Penalty.

12.106.190    Severability—Supplemental provisions.

12.106.010 Definitions.

A.    “Abandoned” means a newsrack that has been documented by the city as not having had its contents changed or replenished by its designated user within sixty days, or whose owner or user has not responded within thirty days to a written request from the city for an unpermitted rack’s removal.

B.    “Authorizing official” means the city manager or his/her delegate.

C.    “Drop box” means a receptacle used by a nongovernmental party for the collection of letters, parcels, or other items.

D.    “Newsrack” 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 publications.

E.    “Parkway” means the part of the public right-of-way between the sidewalk and curb of a roadway, the area between the edge of the traveled roadway and the edge of a public right-of-way when there is no sidewalk and any part of a roadway that is not open to vehicular travel.

F.    “Public right-of-way” means any place owned and maintained by or dedicated to use of the public for the purpose of pedestrian or vehicular travel, including but not limited to a street, sidewalk, curb, gutter, parkway, highway, alley, mall or court. While “public right-of-way” does not include improved or unimproved pedestrian, equestrian or bicycle trails, pathways, walkways, driveways, or similar areas within parks or other city-owned property, or easements not previously used for the purpose of pedestrian or vehicular travel, newsracks are prohibited in such areas unless otherwise specifically permitted by the city council.

G.    “Publication” means any form of printed literature offered or available to the public including but not limited to hard- and soft-covered books, magazines, print advertising and calendars.

H.    “Roadway” means that part of a public right-of-way that is designed or used primarily for vehicular travel. (Ord. 07-17 § 1, 2007)

12.106.020 Applicability.

This chapter shall apply to newsracks located in the city. In any event, this chapter shall not be construed to waive or eliminate any permit or approvals required in other city codes or regulations that might be applicable in the downtown area or any other location within the city limits. (Ord. 07-17 § 2, 2007)

12.106.030 Findings—Statement of purpose—Standards.

This chapter shall be interpreted and implemented in a manner to:

A.    Allow the distribution of publications in public places as contemplated by Article I, Section 5, of the Constitution of the State of Washington and the First Amendment to the United States Constitution, without regard to the content of such publications;

B.    Ensure reasonable access by a variety of publications to convenient vending locations in public places, thereby assisting the access of the public to a diversity of ideas, opinions, and information;

C.    Maintain the use of city streets and sidewalks for travel and transportation and incidental authorized purposes, and to retain the use of other public places for the purposes established;

D.    Consider the interests of owners and occupants of property adjacent to public places, while respecting the rights of all users thereof; and

E.    Preserve or enhance the appearance of public places, and carry out design controls in areas subject thereto. (Ord. 07-17 § 3, 2007)

12.106.040 Newsrack policy in the city—General guidelines.

A.    To reduce congestion and improve aesthetics, the city shall require the replacement of single-publication newsracks with multiple-publication modular units, wherever appropriate. The city shall also encourage, wherever practical, the integrating of newsracks into structures in the city and into any project involving the construction or reconstruction of a substantial segment of sidewalk or other open area for pedestrian use.

B.    The statement of purpose in BGMC 12.106.030 shall guide city officials in determining the overall public interest in regulating the placement, construction, maintenance, size and appearance of newsracks. (Ord. 07-17 § 4, 2007)

12.106.050 When permit required—Issuance.

A.    Without a permit from the authorizing official, no newsrack shall:

1.    Be permanently placed within the city rights-of-way nor affixed to the surface of any public place; provided, that a modular unit newsrack for multiple publications may be bolted to a sidewalk without a permit if the owner or publisher first arranges with the authorizing official for its precise placement, and upon removal restores the sidewalk surface;

2.    Exceed size limitations set by the authorizing official;

3.    Conflict with design policies adopted for historical and special review districts or be placed within one hundred twenty feet of the limits of a street improvement that provides for integration of newsracks into structures located therein;

4.    Conflict with a rule, regulation, or design standard adopted by the authorizing official pursuant to this chapter.

B.    The city shall not unreasonably deny issuance of a permit for a newsrack. (Ord. 07-17 § 5, 2007)

12.106.060 Placement without permit—Exceptions.

Nothing in this chapter shall affect the otherwise lawful placement of newsracks on private property. (Ord. 07-17 § 6, 2007)

12.106.070 Requirements and duties.

A.    All newsracks in a public place shall align parallel with the curb; allow at least five feet of clear sidewalk space for pedestrian passage; be detectable by pedestrians using canes for guidance; and be maintained in a safe condition, able to withstand strong winds, and in good repair at all times.

B.    No newsrack shall:

1.    Be placed or maintained so as to obstruct the use of any crosswalk, wheelchair ramp, driveway, hydrant, or city emergency facility, or be less than eighteen inches from the curb;

2.    Impair loading at any bus, taxi, passenger or truck loading zone; hinder egress to parked vehicles in marked parking stalls; obstruct sight lines of motorists at an intersection; orient toward the roadway; or obscure any regulatory sign;

3.    Be fastened to any public transit facility or any utility telephone pole or tree and street signs; or

4.    Contain advertising other than that which relates exclusively to the publication or publications sold; or be used for purposes other than the sale of such publications. (Ord. 07-17 § 7, 2007)

12.106.080 Costs.

The costs of installation, maintenance, replacement, removal and relocation of newsracks shall be at the sole expense of the permittee or owner of the newsrack. Upon removal of any newsrack, the permittee or owner shall, at his or her sole expense, cause the public right-of-way to be cleaned and/or repaired to a condition in conformity to the surrounding area. Upon failure of the permittee or owner to clean and/or make such repairs, the work may be done by the city and charged to the permittee or owner. (Ord. 07-17 § 8, 2007)

12.106.090 Congestion control—Guidelines—Allocation of space.

A.    Without a permit no newsrack shall be placed within one hundred twenty feet of any corner or other location with more than four newsracks, or a modular unit newsrack with a capacity of at least four units, or within one hundred twenty feet of an attended newsstand.

B.    As long as the requirements of BGMC 12.106.030 and 12.106.050 are not violated, the authorizing official may defer enforcing the congestion control criteria of subsection A of this section at a given location until a complaint is made by a publisher, distributor, property owner, or member of the public.

C.    If a complaint is made that the criteria in subsection A of this section are exceeded, or an application is made for a permit under this section, the authorizing official shall determine whether the totality of newsracks existing or sought at such location will conflict with the requirements of this chapter. If no such conflict is evident, or the authorizing official has determined by using the guidelines in this chapter that the placement represents a reasonable accommodation furthering the overall public interest, the authorizing official shall summarize such a finding in writing and issue a permit for such proposed newsrack.

D.    In determining whether to issue or deny a permit for a proposed newsrack under this section, the city manager, or designee, shall consider: (1) whether there is a satisfactory alternate location for such newsrack in the vicinity, and if no such location exists, (2) whether an existing newsrack shall be displaced for such proposed newsrack. When necessary, allocations of space for newsracks at particular locations as provided herein shall be made in a manner which:

1.    Offers the public convenient access to all publications, whether of large or small circulation;

2.    Guarantees to all publishers a reasonable representation of their newsracks in public places;

3.    Provides opportunity for placement of newsracks for new publications;

4.    Encourages efficient use of space through attractive multiple-publication modular units; and

5.    Minimizes hardship to applicants denied permits and to publishers whose newsracks are displaced.

Before allocating space at any location, the city manager, or designee, shall afford the publishers affected a reasonable opportunity to do so voluntarily.

E.    The city may establish separate modular racks for free publications versus publications for sale, if no reasonable way exists to offer such publications in the same modular rack. (Ord. 07-17 § 9, 2007)

12.106.100 Allocation of space at locations where congestion exists—Impartial allocation process—Notice.

A.    At the time of adoption of the ordinance codified in this chapter, any site containing more newsracks than allowed under BGMC 12.106.090 shall be subject to a reduction of the number of newsracks on this site within one hundred twenty days to no more than the maximum allowed. No later than this same period, the city shall conduct an impartial selection process to determine which publications shall be allotted space at each congested site. Impartial selection shall be performed by the city manager or designee at a public ceremony.

B.    Allocation of space shall be without regard to the content of each publication.

C.    The city shall inform the public of the selection process through public announcement, including announcements in a newspaper of general circulation; such announcements shall appear at least twice within thirty days prior to the deadline for registration.

D.    Publications wishing to participate in the selection process must register, in writing, with the city clerk no later than ten business days prior to the announced date of the selection ceremony. The city must confirm this registration in writing no later than five business days prior to the drawing, by hand service at the time of registration or other reliable means.

E.    At any site where more publications seek space than there is space available, no publication shall be eligible for more than one approved vending space per rack, except as provided in BGMC 12.106.110. (Ord. 07-17 § 10, 2007)

12.106.110 Future reallocation of spaces.

A.    Spaces at a congested location where the vending spaces have previously been allocated through an impartial selection process shall be subject to a new impartial selection process no later than every five years from the date of the prior allocation ceremony, under the same conditions outlined in this section.

B.    No preference shall be given to publications already possessing vending space at the time of the new selection process. (Ord. 07-17 § 11, 2007)

12.106.120 Permits nontransferable—Allocation of newly available space at congested sites.

A.    Existing permits are the property of the city and cannot be reassigned, transferred, or otherwise given by one permit holder to another. Permits may only be assigned to a publication by the city in accordance with the impartial selection process outlined in this chapter.

B.    Where space becomes available at a congested site, the city shall permit a publication to assume use of the space.

C.    Publications seeking to assume use of the available space shall apply for a permit from the city. Where possible, written notice of the application for permit shall be conspicuously posted upon or within the vacant vending space and remain posted for at least thirty days. Such notice shall include information explaining how to contact the city to request use of the space.

D.    Where no competing requests are received by the city clerk within thirty days, the publication seeking to assume use of the available space shall be permitted to do so, regardless of the number of vending spaces this publication may already hold at this site.

E.    Where more than one publication has applied in writing for a permit to use the available space, the city shall conduct an impartial selection process pursuant to BGMC 12.106.100. (Ord. 07-17 § 12, 2007)

12.106.130 Priority given to newsracks at congested sites—Drop boxes prohibited in public right-of-way—Permit required.

A.    Where a site has historically held one or more newsracks and becomes congested due to the presence of drop boxes, stands, or other obstructions, the city may require the removal of any nonnewsrack structure that is creating an obstruction or otherwise hindering free movement upon a sidewalk or other public right-of-way.

B.    Drop boxes shall not be allowed to encroach upon a sidewalk or other public right-of-way, unless the presence of such a box still allows a minimum of five feet of unencumbered sidewalk space. No more than four drop boxes shall be allowed within one hundred twenty feet of each other.

C.    A permit shall be required whenever the proposed or existing location of a drop box encroaches upon a sidewalk or other public right-of-way. (Ord. 07-17 § 13, 2007)

12.106.140 Appeals from denial of permit, removal, or other conditions required by city.

A.    Decisions of the city manager or designee under this chapter are final unless a written request for reconsideration is received by the city clerk within ten days from the date that the aggrieved party is notified of the decision of the city manager or designee. Notice to the aggrieved party may be satisfied by proof of certified mail delivered to the appellant’s address of record, or an address previously provided by appellant to the city, or any other method that should have reasonably informed the aggrieved party of the decision.

B.    Upon receipt of a timely written request for reconsideration, the city manager or designee shall schedule a hearing before the land use hearings examiner to occur no later than sixty days from the date the request for reconsideration is received. Both the city and the appellant may present additional evidence at this hearing. Upon written agreement of both parties, additional time may be allowed for the appeals process. (Ord. 07-17 § 14, 2007)

12.106.150 Authority of city manager.

The city manager, or designee, is authorized to:

A.    Adopt rules and regulations reasonably necessary for implementing the provisions of this chapter, including, but not limited to:

1.    Establishing standards relating to advertising, safety, maintenance, location and the fastening of newsracks to traffic-control devices, and standards relating to the design of newsracks located within the defined downtown area and any public parks;

2.    Requiring that every newsrack in any public place have the name, address, and telephone number of the owner or other responsible party affixed thereto in a place where it may be easily seen; and that every publisher maintain on file with the city manager, or designee, a current listing of newsracks placed in public places as authorized in this chapter without a permit;

3.    Prohibiting newsracks in any particular sidewalk segment to alleviate congestion and maintain safe passage;

4.    Requiring or providing for the relocation of newsracks temporarily to accommodate construction, maintenance and primary street uses;

5.    Requiring any publisher to take such actions respecting placement, maintenance, and repair of newsracks from time to time as may be appropriate and to cooperate with city officials in the implementation of this chapter.

B.    Upon five days’ notice, or without notice if emergency or unsafe conditions exist, impound newsracks unused for thirty days or left in place more than ten days after the publisher discontinues publication.

C.    Upon five days’ notice, or with such notice as may be practical if emergency or unsafe conditions exist, impound newsracks in violation of this chapter, including newsracks maintained without a permit where a permit is required.

D.    Integrate newsracks into structures such as bus-stop shelters, traffic-control devices, and street areas in special districts by local improvement district.

E.    Implement a schedule of fees for newsracks under permit, for impounding and storage of newsracks, seating areas and the like.

F.    Dispose of, as abandoned property, any impounded newsrack that is not claimed by the owner or other person responsible within thirty days from the date of impoundment.

G.    Allow two or more publications to share the use of a newsrack or the same place within a modular unit. (Ord. 07-17 § 15, 2007)

12.106.160 Removal and impoundment of abandoned or nonconforming newsracks—Redemption fee.

Any newsrack located within any public right-of-way or other public place within the downtown area which is abandoned or does not conform to the requirements of this chapter is hereby declared to be an unlawful obstruction and may be summarily impounded by the city. If impounded, the newsrack shall be removed to a temporary storage site of the city’s choosing. An owner may recover an impounded newsrack by first paying the impound fee at City Hall. No fee shall be required for release of newspapers without a newsrack. (Ord. 07-17 § 16, 2007)

12.106.170 Inventory of existing newsracks—Notice—Effect on enforcement.

A.    The city shall undertake and complete an inventory of existing newsracks within the downtown area, for purposes of determining locations where existing newsracks may be affected by this chapter.

B.    The city shall make a good faith effort to notify the publishers of materials contained in existing newsracks of any locations where the existing placement of newsracks appears to be affected by this chapter, and inform such publishers of any actions required by them and/or actions contemplated by the city as a result of the regulations in this chapter.

C.    Enforcement of the regulations contained in this chapter shall not occur earlier than September 1, 2007. (Ord. 07-17 § 17, 2007)

12.106.180 Penalty.

Any person violating any of the provisions of this chapter or failing to comply with the requirements of this chapter or any written regulation or guideline adopted under authority of this chapter shall be deemed to have committed a civil violation as defined in BGMC 8.34.010. Each day, or part thereof, that a violation exists is a separate offense punishable in accordance with BGMC 8.34.010. (Ord. 07-17 § 18, 2007)

12.106.190 Severability—Supplemental provisions.

A.    If any provision of this chapter as herein enacted or hereafter amended, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect the other provisions or applications of this chapter (or any section or portion of section hereof) which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are, and are intended to be, severable.

B.    The provisions of this chapter are intended to augment and be in addition to other provisions of the Battle Ground Municipal Code. Whenever the provisions of this chapter impose a greater restriction upon persons, premises, or practices than are imposed by other provisions of the Battle Ground Municipal Code, the provisions of this chapter shall control. (Ord. 07-17 § 19, 2007)