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HomeMy WebLinkAboutItem 10 - Chapter 20 Amendments �G �n��� �: __/� MEMO TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: BRUNO RUMBELOW, CITY MANAGER�� SCOTT WILLIAMS, DEVELOPMENT SERVICES DIRECTO � MEETING DATE: NOVEMBER 18, 2008 SUBJECT: AMENDMENTS TO CHAPTER 20, STREETS, SIDEWALKS AND OTHER PUBLIC WAYS OF THE GRAPEVINE CODE OF ORDINANCES RECOMMENDATION: City Council to consider proposed amendments to Chapter 20, Streets, Sidewalks and Other Public Ways of the Grapevine Code of Ordinances relative to Newsracks and take any necessary action. BACKGROUND INFORMATION: At the request of some members of City Council, a draft ordinance amendment regulating newsracks was brought to City Council workshop on January 15, 2008 and March 4, 2008. �, The proposed ordinance was very complex, regulating freestanding newsrack placement, color, and design, as well as establishing "Multiple Newsrack Zones" for historic districts. City Council chose to not move forward with the ordinance at that time. However, staff was asked to bring this issue back before City Council, and the revised draft ordinance is much simpler. This proposed ordinance prohibits newsracks from public streets, sidewalks, alleys and City-owned property located within one hundred (100)feet of any property designated with a Historic Zoning Overlay District, Individual Landmark, the Grapevine Township District, or property designated on the National Register of Historic Places. Newsracks placed on private property would not be affected in any way. The proposed ordinance also provides for violation notification and removal procedures, as well as penalties. After discussing this ordinance in workshop on September 16, 2008, City Council authorized staff to set a public hearing. There are currently approximately 20 newsracks placed within the right-of-way on Main Street alone. Photos are attached showing some of these locations. Should City Council wish to adopt this ordinance, it will be effective immediately. Staff will place violation notices on all newsracks in the right-of-way or on City property, and if not removed by November 27, 2008, the racks will be removed by City crews. R:WGENDA\11-18-081AM08-01.4.doc 1 ALLIANCE REGIONAL NEWSPAPERS October 10, 2008 Honarable Cou woman Darlene Freed City Hall 200 S. Ma� St Grapevi e, Texas 76051 Re: Proposed Newsrack Ordinance Dear Councilwoman Freed: }_- We are writing to express our concern about the proposed Newsrack Ordinance which the Council will consider at a public hearing on October 21, 2008. The proposed Ordinance would prohibit all newspaper racks along Main Street or elsewhere within 100 feet of the Historical District unless located on private property. We believe that a complete prohibition of newsracks, even if it were legally permissible, would be an inappropriate over-reaction to the problems the draft ordinance intends to address. The preamble to the proposed Ordinance states that newsracks "must be regulated" to "ensure safe and unobstructed passage of pedestrians" and that "the lack of uniform design and appearance standards for newsracks...creates visual clutter and blight." The proposed Ordinance, however, does not simply "regulate" newsracks in the affected areas. Rather, it completely prohibits newsracks and imposes a severe $500 per day criminal penalty for violation. If the Council believes that placement of newsracks causes a hazard to pedestrians, that can be remedied by regulating the location of the racks on the sidewalks. Similarly, if the Council is concerned about "visual clutter and blight," reasonable regulations concerning the appearance and maintenance of the newsracks would be an appropriate solution. The proposed Ordinance, however, is a complete ban on the dissemination of news and other information in one of the few areas of the city with heavy pedestrian traffic, which is neither warranted nor appropriate. Mayor and Members of the City Council "�' Grapevine, Texas October 14, 2008 Page 2 Finally, we note that the proposed Ordinance would have the effect, presumably unintended, of allowing only one publication to be distributed from newsracks along Main Street. As you know, the Grapevine Sun maintains an office at 332 South Main Street and offers its newspapers from a rack on its property off of the public right-of-way. Presumably, therefore, the GYapevine Sun could continue to maintain its rack even if the proposed Ordinance were enacted, and this would have the unfair effect of making the Sun the only publication available at a newsrack on Main Street. We urge the Council to reject the proposed Ordinance as drafted, but we would be happy to discuss with you ways in which the safety and esthetic issues could be addressed without a complete prohibition on newsracks. Very truly yours, � ���� � ��� �. / Art de la Torre Charles D. Youn Advertising Director Executive Editor, Alliance Newspapers Alliance Newspapers �.w.�__�..��_ __.:�.w��.. - ��.,<,..��.,n}�� ,... .. �_ ,. ,,f_ .. ������� C »> "Mike Brown" <mbrown(c�theqreensheet.com> 10/23/2008 10:24 AM »> Hello Mr. Rumbelow, My name is Michael Brown with the Greensheet and we noticed the article in this Sunday's paper concerning the growing problem with outdoor racks on Grapevine's Main St. We would like to help in any way possible to maintain the clean look of the Historic Downtown Main Street. Please let us know of anything we can do to aid in the City's efforts. Grapevine has been very kind to us over the last 32 years so we are both obligated and committed to be available to meet and discuss possible options that would be favorable to all parties. I am offering a few suggestions that may help move forward a resolution concerning newsracks and the community. 1. Determine and iden#ify#he area being discussed 2. Survey which publications are currently using outside distribution methods in the area. 3. Identify problems or complaints from community concerning outside rack placement or appearances 4. Establish an outline of preferred outcomes/results with City Council members � 5. Make contact with publications identified during survey and provide both an invitation to meet (pre-set time and location chosen by City) and an explanation as for meeting including as much information as possible. Please forward this to either the Mayor or the City Council if you think it may help. If a meeting is called, I look forward to representing the Greensheet. If I can be of any more assistance or offer ideas, please let me know. Sincerely, Michael Brown Greensheet Circulation 214 853-6018 OFFICE 214 747-3478 WAREHOUSE 214 802-3797 CELL visit us at www.theqreensheet.com ( http://www.theqreensheet.com/ ) � 1464 697 FEDERAL SUPPLEMENT perform the same function and achieve the nance regulating placement of newsracke. same result Whether the elements of Air- On croas motion for aummary judgment, tite'a ilooring aystem, viewed aa a whole, the District Court, Hart, J., held thak (I} operate in subatantially tfie same way,and acheme for liceaaing neweracka gave city have aubstantially the same function and manager unguided discretion snd waa un- tesult as the ayatem covered by Interati- tawful prior reatraint; (2)complete ban oa tial's patent is a question of fact. newaracks in residential sreae waa invalid [ll] The range of equivalents presenffi p�ce and manner reatriction; and(3)newa- material fact ieaues relating to the nature ��� were not entitled to attoraey fees of the industry. See dfartin v. Barber, for legal work aeeded to resist initial news- aupra,76b F2d at 1668. With regard to a �k ordinance, which was amended in re- �nding of equivalence,proof may be made sponae to judicial deciaioa. thmugh teatimoay of experta or othera p����'s motion granted in psrt and versed in the technology, by documents, deaied in part. including texts and treatises,and by disclo- eure of prior art. Graver Tank&Mjg. Co. 1. Conetitutiona! I.aw �90.1(8) u Linde Air Producta Co.,339 U.S.at 608, 609, 70 S.Ct. at 856, 857, 94 L.Ed. 1097 Ordinance giving aty manager the su- (1950). The task of weighing such evi- �ority to deny application for license to dence beloags to the trier of fac� !d 339 Place newsrack oa publ� street if that U.S. at 611, 70 S.C� at 857. placement would cause health or safety hazard, interfere with pubGc'a right to use CONCLUSION 8��� �oroughfares. aad sidewalka, im- Defendants' motion for summary judg- ���rc, or otherwise create hazardous meat of noninfria ement is �ndition impoaed prior restraint on speech; g �°� � t0 determination involved was at leaat in part � literal infringement and denied as to in- $ubjective and no atandarda were pmvided fringement 6y equivalents. �gu�de city manage�'s judgment,and die- cretion built into ordiasnce raised apecter O EIfl'NUNtttSKffN oi tontentrbssed Censorehip. U.S.CA. � ConskAmende. 1, 6, 14. 2. Conetitutionaf LsN �90.1(8) Prior restraint impoaed by Illinois city'a ozdinance regulating placement of CHICAGO NEWSPAPER PUBLISHERS neweracks was uacoaatitutional,in abaence A3SN..Chieago'Mbune Co.,sn Illinois oi adequate procedursl safeguaida; there corporation, Chicaso Sun-Timee, Ina. was no time timit by which city couacil had a Delaware corporation, and Dow to hear appeal fmm adverse liceosing deci- Jonee & Compsny, IncM PlsintlHe, sion by city rnansger,snd ordinance did not o, clearty adopt that state's Administrative CITY OF WHEATON, sn Illinois �form Act or otherwiae provide for judi- municipality, Defendan�. ��1 review. I11.S.H.A. ch. 110, A 3-102; U.S.C.A. CoaskAmends. i, S, 14. No. 87 C 076b. 3. Constitutional La�v �90.1(8) United Statea District Court, �n(n� snd Planning �T2 N.D. IUinois, E.D. provision of city ordinance banning all Oc� 12, 1988. newsracka in residential soaing diatricta was iavalid place and meaner reatriction; though ordiaance was conten�neutral on Newspaper publishers bmught civil ita face, city did not demonatrate that it righta action challenging Illinoia city'a ordi- had adopted the least reatrictive meana � CHICAGO NEWSPAPER PUBLISHERS v. CITY OF WHEATON 1465 cu...�r F.s�p,. ��cxa.m.�9est availabie to achieve goals of promoting mo- Edward J. Walsh,Jr.,James H. Knippen tor vehicle and pedestrian aafety and main- II, Edward J. Walsh, Jr., Chtd., Wheaton, taining residential character of neighbor- Ill., for defendant hoods, aad avalab7ity of alternative chan- nels such as home delivery, commercial MEMORANDUM OPINION outleta,and newaboxes did not justify com- AND ORDER plete ban. U.S.C.A. Cons�Amend. 1. _ HART, Diatrict Judge. 4. Constitutional I.aw a�90(1) In onr participatory democracy newapa- F�rst Amendment dces not allow mu- �� are not just an amenity. They are a nicipality to restrict apeech on grounds that ��means of pmvidiag information to citi- private ectors are willing to sponsor it zens called upon ta exereise an enlightened U.S.C.A. Coas�Amend. 1. uae of the ballot Without the information b. Conatitutional Lsw �90.1(8) p��ded by newspapera many citizens Ordinance proviaion for rental permit �'ould be withont the knowledge required fee for newaracks, representing initiai in- for an intelligent electoral process. Ac- atallation fee and annual renewal fee.was cordingly, the distribution of newspapers �u►constitutional; city did not know coata of has always had FSrst Amendment protec- adminiatering pmgram,and installation fee tion. charged by city was higher than the few The methods of newapaper distnbution surrounding communities impoaing sach a are changing. For aome, home delivery is charge. either unavailable or too expenaive. Street 6. Federal Civil Procedure �2481 vendors are disappearing in all but central buainess areas, and newsracks are appear- Genuine iasue of material fact, as to �ng as a substitute means of distribution. whether confiscated newaracka obstructed �ia case concerns issues arising out of the ' ` sidewalk and created imminent gafety risk, ����n or prohibition of newsracka on precluded aummary judgment on newspa- Qublic etreets in a suburban area. pera' constitutional claims arising from that confiacation. This is a challenge to an ordinance which regulates the placement of newaracks in 7. Civtl Itighta 4�13.17i13) Wheaton, Illinois. Plaintiffa attack the To preveil in settled civil righta case ordinance on ite face as an abridgement of for purpoaes of attorney fee provision,fac- the rights under the F'irst and Fourteenth tual determination muat be rnade that aa Amendments,and under the IDinoia Consti- tiona taken by plaintiff are causally linked tution. Defendant City of Wheaton re- to relief obtained. 42 U.S.C.A. § 1988. sponda that the ordinance imposes valid time,place,and manner restrictions permi� S. CivU Righta �+13.17(13) ted under the Ftirst Amendmen� Plaintiffs Newapapers were not entitled to attor- also claim that Wheaton officials confiscated ney fees as prevailing partiea for legal newaracks without due process,ia violation work needed to reaist city's original news- of the Fyfth and Fourteenth Amendmenta. rack ordinattce, which was amended in re- To this, Wheaton counters that the newa- aponae to judicial decision, not letter wri� racka were confiacated because they posed ten by newspapera' counael. 42 U.S.C.A. a threat to driver and pedestrian safety. § 1988. The parties have filed cross motions for summary judgmeak For the reasons outlined below, the li- James A.Klenk,Alan J.Mandel�$�onnen- cenaing acheme is an invalid prior reatraink schein,Carlin,Nath&Rosenthal,Joaeph P. In addition,the complete ban on residential Thomton, Chicago Tribune Co., Chicago, newsracka ie an invalid place and manner Ill., for plaintiffa. reatriction. , �, 1466 697 FEDERAL SUPPLEMENT FACTS by the cona#itution dependa"on the charac- On April 7, 1986, defendant City of �r of the property at iasue." Perrb Edu- Wheaton, Illinois ("Wheaton") pasaed on cation Axr'n v. Perry Locad Educators' ordinance regulating the placemeat of Aas'n, 460 U.S. S7, 44, 103 S.C� 948, 954, newspaper dispensing devices ("newa- �4 L.Ed2d 794 (1983). In this case, the racks")on Wheaton city atreets. This ordi- ``ProPerty at iasue"is city atreeta in Whea- nance was aimilar to an ordinance passed in tOn, I16nois. The Supeeme Court has re- Lakewood, Ohio. Three montha Iater, in ���y �Og"'� Public streeta "as the July 1986, the Sixth Circuit ruled that sev �hetype of a traditional public forum." eral provisions of the Lakewood ordinance Frisby u Schultz, —U.S.—, 108 S.Ct were unconstitutional. Plain Dealer Pub- �96, 2499, 101 L.Ed.2d 420 (1988). liahiny Co. v. City ojLakewood 794 F.Zd In these traditional public fora, govern- 1139 (6th Cir.1986), affd in part & re- ment's authority to restrict apeech is at its manded—U.S.—, 108 S.C� 2138, 100 ��um. 1time,place,and manner restric- L.Ed.2d 771 (1988). Six weeks after the �na are valid only if they are conten�neu- Sixth Circuit decision, WheatAn amended ��, narrowly tailored to serve a signif'r ita ordinance, deleting aome of the lan- �t government interest,and retain ample guage which pmved fatal ta the I.akewood elternative channela of comraunication. ordinance.' In January 1987, plaintiff Perry,460 U.S.at 45,lOS S.Ck at 954. As newapapers brought this § 1983 action in an application of the requirement that re- Illinois state court, aUeging a violation of 8�ctions be narrowly tailored, a law can- their rights under the Ftirst, F1'fth, and not condition the free exerciae of Ftirst Fourteenth Ameadments to the U.S. Con- Amendment rights on the unguided discre- stitution, and under the Illinoia Constitu- don of government officials. Lakewood tion. Wheaton removed to t,hia cour� 108 S.CL at 2143; Shuttleawortic u Bir- mingha�n, 394 U.3. 149, 150-51, 89 S.C� �,.�,,, At the close of discovery, both sidea g35, ggg, 22 I,,Ed,2d 162 (1969) ("a Iaw moved for aummary judgmen� Because of aubjecting the exercise of flrst Amend- the similarity between the Wheaton and ment freedoma to the pcior restraint of a Lakewood ordinances, this coart deferred license,without narrow, objective and def- ruling on the motione until the Supreme inite ata�ndarda to puide the licenaing au- Court decided Lakewood's appesl from the thority, ia unconstitutionaP'(emphasis add- Sixth Circuit In June of this year, the ed)}; Staub v Cit�of Baxled/,35b U.S.313, Supreme Court affirmed the Sixth Circuik 321-22,78 S.Ct 277,281-82, 2 I..Ed.2d 302 City ojLakewood u Plain Deater Publish• t1958). Md finally, any licensing ayatem iny Co., —U.S. —, 108 S.Ct. 2138, 100 which operates as a prior restraint"avoids L.Ed.2d?71(1988). Both Wheaton and the ���tutional infirmity only if it takes newspapers then renewed their aummary Place under procedural safeguards de- judgment moGons, aigned to obviate the dangers of a censor- ahip system." Freedman u Marylana� LEGAL PRINCIPLES 380 U.S.51,b8, 85 S.Ct.734,789, 13 L.Ed. It ia beyond dispute that the F�rst � �9 (1965); Miami XeTald Pu6. Co. v. Amendment protects the right to distribute �ty ojHallandale�434 F.Zd 666,676(llth newspapers in newaracks. City of Lake- Cir.1984). wood v. Plain Dealer FubliaAi�rcg Co., — Against the backdrop of tt►eae legal prin- U.S.---, 108 S.Ct. 2138, 100 L.Ed.2d 771 �P�es,the court turns to a conaideration of (1988); Gannett Sat�llite I�{fo. Networl� �'e Wheaton ordinance. Inc. v. Metropolitan Trnnsportalion Au- DISCUSSION thority, ?45 F.2d 767, 777 (Zd Cir.1984); Miami Xerald Publiahiny Co. v. City of 1 Due Proceae�P'+'for Iteatmint Nallandala, 734 F.2d 666, 673 (llth Cir. [1] Plaintiffa attack the liceoaing 1984). The degree of protection prnvided scheme aa sn unlawtul prior reatraink The 1. The relevant port(ons of the Wheaton ordi- nance are rcproduced in the Appendix. �� �.�.�. __ _ CHICAGO NEWSPAPER PUBLISHER3 v. CITY OF WHEATON 1467 au..6s�r p.s�. ��(r►.n.m.�s�tl Supreme Court has often artaculated the vicea at an interaection wkere such elements of a prior restraint. First, the placement would not impair traff'tc right to eagage in the protected speech or otherwise create a hazardous con- must require the prior approval of a dition.... govemment agent Approval of the appli- g�, ZO-148(3xe) (emphasis added). cation must depend on the agent's affirma- �e significance of the firat passage is tive action. In addition,approval must not �� even if all other conditions are satis- be routinely granted but rather must require fied the city manager may sa'll withhold a the exerciae of the agent's judgmeat Fi- ��t i!it ia determined that the newarack naily, the licensing acheme muat empower ���g a`���or safety hazard or inter the agent to approve, deny or revoke a ferea with the right of the pubtic" to use licenae based on the content of the pro- �e streets snd aidewalka. In his deposi- poaed communication. SoutheasEern Pro- �on, �� ��nt city manager coaceded motiona,Ltd u Conrad 420 U.S.546,bb4, �t this was at least in part a eubjective 95 S.Ct 1239, 1244, 43 L.Ed.2d 448 (1976y. determination, Roae dep. at 36, and Whea- The first two elements are plainly met �n has pointed to no ataadacds which here: the ordiaance requires an application gnide his jndgmen� The second paasage to the Wheaton city manager who muat act requires esaentially the same subjective de� on the application within ten days. Sec. termination and is equally flawed. 20-147(1); (3). Wheaton contenda, how- ��ermore, the ordiaance suthorizes ever, that the remaiaing elements are ab- �e �ty ��ager to revoke a permit for sea� approval ia not discretionary,and the ��v]iolation of aay city ordinance, or for city manager has no expresa suthority to �����ud, misrepresentation, or any false , deny an application based on the coatent of e��ment" in the application itse}f. Re- the applicant's paper. Wheaton is mistak- cently the Eleventh Circuit conaidered the en on both counts. �����nality of an ordinance regulating e�- Ftirst, the decision to isaue a Gcense is newaracica which eontaiued aim�7ar provi- indeed discretionary. The ordinance lists a sions. Miami Herald, 784 F.2d at 673-?4. number of eonditions which the applicant � � �ia case, the eity code before the must meet before a license can issue. ro�of appeala gave the municipality the Prominent among them are the following: �uthority to revoke newarack permits for Newapaper dispensing devices ahall be �e ��qon of any aty ordinance. Id piaced adjacent and parallel to bu7ding �e city commisaion was authorized "to walls not more than aix inchea (6") dis• adjudicate the rig6ts ot licenae applicants tant therefrom or near aad parallel to the ,,, �determine if the applicant has violat- curb abt lesa thatt eighteen inches (18") ed a p��,isioa"of the city code. This, the and not more than twenty-four u►ches �urt concluded, "neceassrily involves the (24'7 distant frnm the curb at suck loca- exerciae of considerable discretion" and tiona applied for and determined by was therefore improper under the �rst the city manay�r aoE to cauae a kealth Amendmen� td The same reaeoning ap- or safety liaza�rd or inte�rfere wit1+, tice p��ea here, and leada to the eame conclu- right of the public to uae oj the atreets, $;on: the city manager determines whether throughfarea, and aidewulks. a violation haa occun�ed. And, since revo- Sec. 20-148(2) (emphaais added). cation is not automatic, the city manager No newspaper dispenaing device ahall be muat ne�ct determine which viola'ons war- placed, installed, located, used, or maia- raat revoeation. This is indeed"conaidera- �n�; ble discretion"and cannot be aquared with . • • • • • the �tirat Amendment (e) Within five hundred feet (500') of In response, Wheaton contends that snother newapaper dispenaing device Lheae provisions suthorize only"limited dis- ...,exeept that the city manager may cretion" "revie�vable by both common permit three (3) such dispenaing d� senae and a reasonable man standard." � 1468 697 FEDERAL SUPPLEMENT But the cases do not support a "limited cenaorship. Freedma.n v. bfarylanc� 380 discretion" etandard. Shuttlesroorth. 394 U.S.at 68,85 S.Cw at 738; Miami Hernld, U.S. at 150-61, 89 S.Ct at 938 (law must 734 F.2d at 67b; Fernandea v. Limaner, provide "narrow, objeclive and dafinite 663 F.Zd 619, 627-28 (5th Cir.1981), cer� stancfarda to gvide the licensing suthori- deniid 468 U.S.1124,103 S.C�.5,73 L.Ed. ty...." (emphasis added)}; Sweamon v. 2d 1395(1982); Rubin v City ojBeru�y�t, Meyera, 455 F.Supp. 88, 91 (D.Kan.19T8) 6b3 F.Supp. 476, 480 (N.D.I11.1982), affd, (permit syatem must '7eave no factors to 698 F.2d 1227 (7th Cir.1982j. The ordi- be assessed,judgments to be made,or dis• nance dces precisely tha� In thia reapect, cretion to be exercised.... ['1�he decision the Wheaton ordinance "is iadistinguish- to grant or deny the licenae application able in ita cenaoring effect fmm the official must be virtually a ministerial one."}quot- actions consiatently identi�ed sa prior re- ed in Miami Hemld, 734 F.2d at 675.' straints in e long line of thia court's deci- F�rthermore,even if"health or eafety haz- aiona." Southeaatern Promotion� 420 ard" were narrowed to mean a vioiation of U,$, at 552, 95 S.Ct. st 1243 (collecting the objective measurements in Sec. 20- �es). "Only if we were to conciude that 148(3), e.g. no newsracks kss than fifteen (diatributioa of newspapera]is unprotected feet from a fire hydrent,etc.,the ordinance by the Ftirst Amendment ... could we pos- still vests the city manager with discretion- 8�bly fmd no prior reatraint here." Id at ary authority to revoke permita, as aoted �7�95 S.Ct at 1246; aee alao Miami Her- above. finally, discussed infra„ tfie ordi- a�d 7g4 F.2d et 675. nance doea not provide for judicial review. The licensing decisions are discredonary. [2] The fact that the ordinance is a pri- The next question in determining if the or restraint dces aot end the inquiry. A ordinance is a prior restraint ia whether prior restraint is not per ae unconstitutioo- decisiona are based on the coatent of the al. Bantam Booka, Inc. v. Sullivan, 372 applicant's paper. Wheaton contends that U.S.58,70 n. 10, 83 S.C�.631, 639 n. 10, 9 decisions are content-neutra! because the L-Fd•Zd b84 (1963). The next quesdon is ordinance applies to all newsracka. But the adequacy of procedural safeguards. that misstatea the inquiry. The Supreme The ordinance must require that the li- Court has uniformly recognized that an act censor grant or deny the permit within a can be a prior restraint even though,by its specified, brief period, it muat provide for terms, it doea not favor one apeaker over prompt judicial review, and, if a licease is another. See, e.g., Southuut�rn Pm- denied or revoked, the burden must be on motiona, 420 U.S. at 5b8, 9b S.C�at 1246; the licenaor to institute judicial proceediAga Shuttleswort�, 394 U.S,at 150-b1,89 S.C� to prnve that the material is unprotected. at 938-39; Staub, 355 U.S. at 521-22, 78 South�aatern Promotio�,420 U.S.at 660, S.Ck at 281-82. 95 S.C� at 1247; Freedman, 380 U.S. at The question is not whether the ordi- �� 85 S.C� at 738. nance expressly favors certain speakera(al- The neceasary safeguards do not appear though that would alao be improper), but in this ocdii►ance. Initially, though the law whether the diacretion bnilt into the ordi- allows an applicant to sppeal an adverse nance raises the speeter of content based decision by the city manager to the Whea- 2. The opinion of the Glifornia Supreme Court cisls. The holdfag today is the opposite. There in Kask Entap►�ru v.City o/Lor AnatJa is not is no inrnnsiscenry in the two holdings. Un- to the contrary. 19 Cal.3d 294,IlE Ca1.Rptr.S3, gusge may be preeix �nd cleu, but ctip vat 562 P.2d 1302 (1977). One pmvision of the discretion in municipel autho�itia. Su ordinanee ehallenged in Xash stated that aews- �Cp�/y,�yry o/rutsa okta,8)S F.2d 733,741 rxTcs may not`unnawnably interfere with or (lOth Cir.1987) (ordinance which permiu mu- impede the flow of pedettrian trafRa" t38 Cal. �cipslity to decide which struceures vtolate the Rptr.�t 59,S62 P.2d at ISOB. 7'he court upheld �aw vau unguided dtscredon in government this provision. The challenge, however, was and ts unconstitutional,ever►though lan�ua�e is t6at the laagwge wu vaQue and overbroad,snd not vague). nor that it vested discretion in government offi- CHICAGO NEWSPAPEK PUBLISHER9 v. CITY OF WHEATON 1469 pb u 697 F.Bupp. 1164(N.D.Ill.19lE) ton City Counc9l, there is ao time limit hy aot change their etatua under the F'irat which the city council must hear an appeal. Amendmenk Friaby v Schultz, — U.S. Thus the"right"to appeal is in fact discre- —, 108 S.Ct. 2495, ?A99-2500, 101 L.Ed. tianary, and a permit application can '9an- 2d 420. Conaequently, the ban on resi- guiah inde�initely before the Counc7"—a dential newsracke muat be examined under feature recently criticized by the Supreme the familiar atandard: the restrictiom m�st Court when it struck down the Lakewood be oontent�neutral,it must be asrrowly tai- ordinance. La,kewood. 108.S.Ct at 2161. bred to serve s aignificant government ia- More importantly,the ordinance doea not �ree� end it muat leave open ample alter- provide for judicial review of the adminia- AB�ve channels of communication. Pcrry, trative decision to grant,deny,or revoke a 460 U.S. at 46, 103 S.Ct. at 954. permi� In Illinois, the Admiaistradve Re- A. Conten6-Neutral view Act is not spplicable unlese clearly The ban on residential newsracks appliea adopted by the legislature which provided equally to all newsracks and is therefore for the administrative decisiop. IA.Rev. content-neutrsl on its face. See Gannet� Stat. ch. 110, 3-102 (1988). Wilkins v. 74b F.2d at 775; Miami Herald, 734 F.2d State DepG of Pu6lic Aid 61 lU.2d 88,280 at 673-74; Providence,lournal Co. v. City N.E:2d 706,708(1972); Sullivan v. Board oj Newport, 665 F.Supp. 107, 112 (D.R.I. of l�'ire and Pollce Commissio�ura, 103 1987). Plaintiffs suggeat otherwise, alleg- Il].App.3d 167, 58 Il}.Dec. 604, 607, 430 ing that Wheaton has not enforced the ban N.E.2d 636,639(1981). Nowl�ere does thia againet the Wheaton Daily�ouritaG But ordinance adopt that Act, In addition, thst allegation challenges the ordinance as there ia no provision requiring Wheaton to applied, snd in their motion for summary inatitute judicial proceedings to pmve the judgment, plaintiffs adequately raise only . conduct is unprotected. These omisaions facia! challenges. are fatal to the licensing acheme.= See B. Narrowly Tailored _�� Ball, Ext�+a! Extra! Read All About I�• �yy,eaton muet demonstrate that there is Firat Amendme�ct Pr+nblema in the Regu- a eignificant relatioaship between the regu- lation of Coin Operated Newapaper �ation and the governmental interest, a�nd Vending Machines. 19 Colum.J.I.. dc Soc. �at the meana employed are the least re- Probs. 183, 20�-204 (198b). atrictive ava�'Iable. City oj Watsaka u Illi- II. Ban On Besid.ential Newaraeka n0� �61ie Aetion Counci� 796 F2d 164T, 1664 (7th Cir.1986), ajj"d 479 U.S. [3] Becauae the licensing scheme vesta 1048, 107 S.G't. 919, 93 L.Ed.2d 972(198T). Wheaton officials with the unguided discre- In enacting a total ban on resideatial news- tion to control the placement of newarecks, racks, Wheaton has not demooatrated that and because the ordinance lacka the proce- they have adopted the least reatrktive dural safeguarda to guaid againet abuse of ineana available. Coneequentiy, the tAtal that discretion,it is uneonstitutional. How- ban is unconatitutional. ever, another pmvision oi the ordinance �e object of the ordinance appeara in bans aA newsracks ia residential zoning �e preamble. The ordinance is designed diatricta of Wheaton. Sec.20-148(1). This, � p�mote "motor vehicle and pedeatrian obvioualy, involves neither a prior applica- gafety" and to maintain the "residential tion nor municipal discretion. In other character of the R,eaidential Zoning Dis- worda, validity of the reaidential ban is ����� ���e former,Wheatfln cannot unaffected by the first part of thia opinion. ��8��et only a total ban Rn71 adequately Plaintiffe chalienge this provision se well. pro�de for driver attd pedestrian safety, R,esidential etreets are traditioaal public since all other city atreete sre elso potential fora and their character es residential dces sites for a aewsrack. The ordinance per- 3. it may also be that the tea day waitinQ period iuua It is not clear,howtver,why inspecting before w6Ich the city manager must act is not the site Eor corapltance with objedive measvre- sufftctently brieE Tt�e court does not reath t!u meats would require ten days. .�:._ 1470 697 FEDERAL SUPPLEMEN'P mits newsracks in non-residential districts, lets, and "numeroua newsboxes which are provided they are properly placed(e.g. not legally eligible for permits." These chan- within 15 feet of a ftre hydrant,not within nels are inadequate to juatify a complete five feet of a marked crosawalk, etc.). ban on residentisl newaracks. The second goal of the otdinance is to Fyrst, a person cannot selectively eu� preserve the "residential character" of scn'be to home delivery of plaintiffa' pa- Wheaton neighbochoods. Wheaton claims pers. The person who reGes on newsracks this gosl reftecta a concem for neighbor- to purchase an occasional paper muat pay hood sesthetics. Granted, neighborhood conaiderably more to aubscribe to a particu- aesthetics are a significant government in- lar paper. And when alternative channels teres� Members oj the City Council of are not readily avsilable, "the Court has Los Anyeles v. Tazpay�ra jor Virece�tt, 466 shown apecial solicitude for forms of ex- U.S. 789, 806-47, 104 S.Ct 2118, 2129-30, p�$sion that are much less expensive than 80 L.Ed.2d ?72 (1984). However, it dces feasibie alternativea...." Taxpayers for not follow that a complete ban is the least V=��,466 U.S.at 812 n.80, 104 S.C�at restrictive means of achieving the goal. 2133 n. 30; Martin v. City oj Struthera, Wh¢atan has not explained—much lesa 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 demoaetrated—how a aewsrack on a resi- LEd. 1313 (1943). F�rthertnore, th6ugh dential street destroys the "character" of plaintiff newapapers provide home delivery, the neighborhood any more than a mailbox, the ordiaance bana all newsracks in resi- utility pole, fire hydrant, or traffic sign. dential districts. This includes the amall, As one court recently observed, "[i]f news- P�rly funded press,without the resources racka alone are banned aad no further � Provide home delivery, but with the steps appear likely,'the commitment of the �me claim to the protections of the Firat city to impmving its physical environment Amendmen� is placed in doub�"' Providersce Journal [4] Moreover,the availability oi private ""�"' Co. u City oj Newport, 665 F.Supp. 107, sellere ia irrelevan� The Ftirat Amendment 115(D.R.I.1987)(quoting Metromedia,Ina does aot sllow a municipality to reatrict � v. City ojSan Diego, 453 U.S.490,b31-32, 8p�h on the grounds that private actors 101 S.Ct. 2882, 2904-05, 69 L.Ed.2d 800 are willing to sponaor it See Providenee (1981)(Brennan,J., concumng)). See also �ournal Co. u Cit� oj Nexrport, 665 Quadres, Content-Neutml Publie Forum F.Supp.at 118. If thia were the rule,then Regutatio»s: The Rise oj tJie Aatltetic the rights eafeguarded by the�rst Amend- State Intereat, tlee Fall ojJudicial Scruti- ment would be in the hands of private �ny, 37 Hastings L.J. 439, 474-780 (1986�• businesaes. In other words,if private seli- Aeathetic judgments are "necessarily sub- ers are an adequate altemative channel jective," Metro»tedia, 463 U.S. at 610, 101 under the Constitution, then an ordinance S.Ck at 2894, and Wheaton cat►not aimply vvhich ia conatitutionai today becomes un- raise the banner of aeathetic intereat, and �nstitutional tomorrow,when those sellera then leave it to this coutt to determiae not close, relocate, or elect not to sell newapa- only how the ordinance advancea those in- pers, The protections of the Ftirst Amend- tereats, but why a total ban is necesaarq. ment cannot be so transitory. See Southern New Jeraey NewJpapera v. �eaton, however, relies on the opinion New Jeraey, 642 F.Supp. 173, 186 (DN.J. of the Sixth Circuit in Lakewooc� which 1982); Quadrea,supra at 466,468-76. The upheld a residential ban on neweracks. . burden is on Wheaton to ahow that the �e Court of Appeals relied in part on the ordinance is narrowly tailored, and it haa availability of commereial sellera. 994 F.2d failed to carry that burden. gt 1147. But unlike the situation in Lake- C. Ample Alternative Channela woo� where no residence waa more thaa Wheaton claima alternative channela are one�quarter mile from a newarack,794 F.2d more than sufrcient It points to the avail- at 1147, the partiea here agree that some ability of home delivery, commercial out- residential neighborhoods in Wheaton are a CHICAGO NEW9PAPER PUBLISHER9 v. CITY OF WHEATON j4'JI pb v f97 F�Supp.t461(1VD.II1.19�6) full three milea from a newarack. To this, (1941); Gannett, 745 F.2d at 774; Fer� Wheaton responds that eeveral neweracka nadut u Limmrx, 663 F.2d 619, 633 (bth are available in the area aronnd Wheaton. Cic.1981), cer� deniec� 458 U.S. 1124, 103 But Wheaton cannot rely on other munici- S.Ck 6, 73 L.Ed2d iS9b (1982). palitiea to rescue them from the conee- �e ��1e��n of thie ordinauce is quences of an improperly drawn ordinance. Bomewhat convoluted. According ta Whea- Cf. Schneider u State, 308 U.S. 147, 163, �p� app�ha,� � submitted to the city 60 S.Ct 146, 161, 84 L.Ed. 156 (2939) �anager's aecretary, who forwarda it to ("[O]ne ia not to have the exereise of hie �e city manager. He then senda his es- liberty of expression in appropriate placea 8��t��p�the proposed site for con- abridged on the plea that it may be exea� formity with the ordinance. After the as- cised is some other place.") These neigh- B��L�po�back,the city tnanager then boring municipalities have the eame right approves or diaapproves the application. as Wheaton to eaact valid time,place, and �e yearly renewal fee covers reinspeetion manner reatrictions on the p�acement of coata. Anaually,the city manager receives newerscks. Theae reatrictiona could well $65,600, his assistant mughiy E26,000, and reduce the number of newsracks snrronnd- � Becretary $27,000. ing Wheaton. If Wheaton's view of the p�}�eaton claima that th,e time it takes to law were correct, then the effect of the camplete theae taska, performed by em- neighboring ordinance wouid be to imperil ployees at these salaries, justify the fee. the constitutionality of the Wheaton ordi- But the newspapers note several undisput� nance. Wheatoa cannot conditioa the exer- � ��� � �e record which undermine cise of �rst Amendment freedoms on ���n's claim. F�rst,it is apparent that events and conditioas outside of Wheaton �eaton doea not know what it coeta to any more than it can rely on private setlers �m��r the program. For instance,be- to guarantee the expreasion which Whea- fore the vote on the ordinance one City ton has abridged. Counclman asked the city "to take a look � Valid place and manner reatrictions on at all of our paper generation regarding residential newsracks may well be different the permita Gke this ao ... in the future than those appropriate to commercial ar- we'il actuaqy know what it costs us.... eas, but Wheatoa has not made a ahowing [S]o when we do eetablish a fee, it would which jnatifies the total ban enacted in this accurately reflected (sic) upon our actual ordinance. costs. I don't think we really know...." The Councilman went on to speculate III. Rental Perrnit Fee that a E�f�"�aily ian't that far off..." [57 T7►e holdings stated above are auffi- but there ia reason to doubt him. Before cient to invalidate the entire ordinaace. Wheatoa passed the ordinance, the assis� T'hat notwithatanding, to preserve judicial ant city manaSer eucveyed 27 communitiea reaourcea, and to guide Wheaton's Bubae- in the.area. He discovered that only two quent efforts,the court analyzes one other charged feea for newsracks. Of those two, pmvision: � 2P-148(4}, the rental permit one city charged�lb per newsrack,and the fee. Wheaton charges an initial fee of$2b other ;10. Based on that aurvay, the as- per newsrack inatalled,as well as an annu- sietant recommended lowering the fee in ai renewal fee of i16 per newarack The Wheaton to either E10 or $Ib. newspapera challenge these fees as an un- In responae, Wheaton saya that the pro- constitutional tax on their �rst Amend- cesa is more expensive because it requires ment rights. the tirae and attention of several emptoy- Licensing fees are permias�bte,but a mu- ees, including the city manager� who is nicipality can charge no more than the relatively weq paid. But this overlooks amount needed to cover adminiatrative severa] thinga. Wheaton isauea licenaes coats. Cox % New HampJhire, 312 U.S. for appmximately 80 difPerent activitfea. 569, b77, 61 S.C� 762, 766, 8b L.Ed, 1049 Rose deposition, 70. The only liceoae 1472 697 F'EDERAL SUPPLEMENT which receivea the peraonal attention of the 870, 873, 94 L.Ed. 1088 (1950)). Wheaton city manager is the newaracic licenae. !d claima that the newsracka created an imme- The reat are adminiatered by either the city diate riak, and plaintiffs offer nothing to manager's assistant or his secretary. Md the contrary. On this record, summary the city manager conceded that hie secre- judgment ia improper. tary was perfectly able to monitor the pes- mit system for newaracks. In light of [7.81 Plaintiffs alao claim they are enti- these points,the aewspapers asked the cur tled to attome�s fees for legal work need- rent city manager why he had to adminis- � � ��t the initial aewarack ordinance ter thia particular ordinance,and no other. P�g� by Wheaton. They argve that He said that was"(j]uat the way we decid- �eaton amended the initisl ordinance in ed to set it up." Id at 71. �ponae to a letter written by plaintiife' Alternatively, he could have pointed out counee►. This, they claim, makea them a that the ordinance called upon him to make Prevailing party for the purposea of several discretionary determinationa. But ¢ lg�• P�aintiffs' claim is denied. those provisions are invalid. Measuring A party may prevail without formal judi- compliance hardly requires the time and cial relief. Maher u Gagne, 448 U.S. 122, expertise of seniqr city officials. Wheaton 129, 100 S.Ct. 25?0� 2574, 65 L.Ed.2d 653 is of course free to determine the dutiea of (1980j; In n Burlington Northern, 1� its employees and may leave the adminis- Employment Practices Litigation, 832 tration of this program with the city man- F2d 422, 426 (7th Cir.1987). To prevail in ager. But Wheaton is not free to enact a settled case, the actions taken by the and administer unconatitutional restrictions Pisintiff must be causally tinked to the on speech and then charge those whose �1ief obtained. Burlington Northern,832 apeech is restricted to pay for the time it F.2d at 425. The causal connection, how- �k, ever,is a factnal determination. Id; Hari �. rington u DeVito, 666 F.2d 264, 267 (7th IV. Other Isaues Cir.1981), cerG denied 456 U.S. 993, 102 (6] The remaining issuea may be dealt S.Ct 1621, ?1 L.Ed.2d 8b4 (1982). Here, with briefly. FSrst� plaintiffs argue that p�affa cannot eatabliah the necesaary when Wheaton coniiacated Tribune and �usal connection, aince Wheatoa insiats Sun-�lmes newaracks in March 1986, it u'e ordinance was amended in responae to deprived the newspapera of their rights �e S'vcth Circuit decision in Laktu�ood under the FSrst, F1'fth, and Fourteenth �eaton's poaition is certainly tenable, Amendments. Wheaton admits con�scat- Bince the original ordinaace was ao atrik- ing the boxes, but argues that the newa- �ngly aimilar to the ordinance diaapproved racks obstructed the sidewalk and created by the Sixth Circui� In addition, the an imminent safety riak. changes made by Wheaton correspoad Plaintiffa'motion for summary judgment more cloaely to the opinion of the Sixth is denied here. If the neweracka in fact Circuit than to counsel e letter. For in- created an imminent safety riak, Wheaton e�ce, counsel warned against the resi- deatiai ban. The Sixth Circuit upheld this could summarily eonfiscate thern. The ban, and the amended Wheaton ordinance Court has repeatedly upheld summary ad- ��tuded i� On a motion for summary ministrative action in emergeney situationa, judgment, diaputed facts are resolved and"deprivation of pmperty to protect the against the movank �xman a WLS-TV, public health and eafety is '[o]ne of the gq6 F.2d 448, 452 (7th Cir.1988). Conse- oideat�examples' of permissible summary quently, plaintiffa' motion for summary action. Xodel v. Vir9inia Surjace Min- judgment on this point ia denied. ing & Rec[amation Ass'n, 452 U.S. 264, � IS THEREF08E ORDERED thaw 900, 101 S.Ct. 2352, 2373, 69 L.Ed.2d 1 (1981) (quoting Ewing v Mytinger& Cas- (1) Plaintiffa' motion for summary jndg- selberry, Ina, 339 U.S. 594, b99, 70 S.C� ment is granted in part end denied in part. ,� CHICAGO NEWSPAPER PUBLISHER3 v. CITY OF WHEATON 1473 CHe��97 F.Eupp.1161 p�I.D.I11 19l8) (2) Defendant's motion for aummary (3) Within ten (10) days of receipt of judgment is denied. an application for a permit,the city man- (3} A atatus hearing is aet for November ager ahall grant the apglication and iasne 10, 1988 at 9:16 a.m. the permit provided that the conditions contained in Section 20-148 of this ordi- APPENDIX nance are, where applicable, complied with. In the event the terms snd condi- ORDINANCE N0: E-314T tions of Sectaon 20-148.where applicable, are not complied with, the city manager AN ORDINANCE AMENDING THE shall,within ten(10)days of receipt of aa WHEATON CITY COD�--VENDING applicatioa for a permit,deny the applica- AND NEWSPAPER DISPENSING tion,atating the reasons for such denial. DEVICES AND AMENDING ORDI- �, Zp-148. Rental permit conditioas. NANCE NO-E-3088 The newapaper dispensiug device rent- Section 1: City of Wheaton Ordinance al permit ahall be subject to,and granted No. E-3088, "ANI ORDINANCE AMEND- upon, the following conditione, restric- ING THE WHEATON CITY CODE-- tions, and requiremente: VENDING AND NEWSPAPER DISPENS- (1) Newspaper dispensing devices ahall ING DEYICES", is amended by deleting not be placed 'm the residential zoning the terms and provisions thereof in their districts of the city. entuety; and the Wheaton City Code is (2) Newepaper diapensing devices ahall amended bq adding and including therein be placed adjacent and parallel ta build- the following: ing walis not more than six inches (6') distant therefrom,or near and parallel to "ARTICLE VII. VENDING AND the curb not lesa than eighteen inchee NEWSPAPER DISPENSING (18') snd not more than twenty-four DEVICES inches(24')distant from the curb at euch ^ Sec. 20-147. Newspaper diapeasing de- ���one applied for and determined by vices; application and pera►it the city manager not to cause a health or (1) No newepaper dispenaing device aa#ety hazard or interfere with the right shall be placed or located within a pubtic of the public to use of the etreeta, thor- or private rightof-'way,along the streets, oughfares, and sidewalka. thoronghfares, or sidewalks within the (3) No newspaper dispeneing device City of Wheaton unless a permit has ahaU be placed, installed, located, used, previously been issned therefor by the or maintained: city. The term `newspaper diapensing a• Within fifteen feet(16')of any fire device', as nsed in this section, shall hydrant or other emergency facility; mean a mechanical, coin�perated con- b. Within fifteen feet (16') of any in- tainer,constructed of inetal or other ma- ����►8 drlveway, alley, or atreet; tetial of substantially equivalent c. Within�ive feet(5')of any marked atrength and durability, not more than cmaswalk; fifty inches(60')in height and not more d. At any loeation where the width of " than twenty-�ve inches (Zb'j in length paved dear apace in eny direction for and width. the pasaageway of pedestrians is re- (2) Applicatioas for such permit may duced to lesa than five feet (5'); be made to, and oa forms approved by, e. Within five huadred feet (600h of the city manager for rental permite at- another newspaper diapensing device lowing for the iastalladon and placement containing the same newapaper o� of newspaper diapensing devices within newe periodical, eacept that the city the public and private right�f-way,along manager may permit three (3) such the streeta,thoroughfares,and sidewalka dispensing devicea at an intersection within the city. where auch placement would not im- �. 1474 697 FEDERAL SUPPLEMENT APPENDIX—Continued meat o!the grounds for the appeai with pair traffic or otherwiae create a haz- the city clerk within ten (10) daya after ardoua condition; notice of the deciaion of the city manag- f. Any location where three(3)news- er. The city council ahaU set the time paper dispenaing devices are already and place for hearing such appeal, and J��� notice of auch time and place shall be g. So as to be chained, or otherwise B�ven in Lhe same manner aa specified secured, to any tree, utility, or light herein. The city council ehall have the pole, parking meter, traffic control power to reverse, affirm, or modify the post, street sign post, or other public decision of the city manager, snd any prope�y; such deciaion by the city counsel shaq be h. On or within any median withia r�a�� any public or private rightrof-way. Section 8: If any aection, eub-section, 4. The permittee ahaA pay aa iaitial clauae,or phrase of thie ordinance ia for rental permit fee of TWENTY-FIVE any reason held to be invalid or unconati- DOLLARS ($25.00) for each location tutional by the deciaion oi any court of where a newspaper dispensing device is competent jnriadiction, such decision inatalled. 'The initial rental permit fee ahall not affect the validitq of the re- shall be apQlicable to the initisi licease maining portiona of this ordinance.° year, or part thereof. The permittee shall pay a renewal rental permit fee of w FIFTEEN DOLI.ARS ($15.00) per yesr o #u��a�u�saru� for each location where a newspaper dis- pensing device is installed. Sec. 20-149. Revocation of permits. Rental permits issued pursuant to this ,�„ Article may be revoked by the city man- ager after notice and hearing for any of CaseU RANDLE, George Austin and the following causea: Holma Communicationa, Plaintitis, (1) F�sud, misrepreaentation, or any r. false statemeat contained in the applica- tion for permit; Ls8ALLE TELECOMMUPIICATIOPI3, (2) Viotation of any city ordinance, ur INC., d/b/s Chicago Cable TV, cluding the ordinance regulating auch Defendan� rental permit; No. 88 C 5280. (3) Violation of the ternss of the rental United States Diatrict Court, permit granted to permittee. N.D. Illinois, E.D. Notice of hearing of such revocation sha11 be given in writing to permittRe Oc� 14, 1988. etating the grounda of the complaint to- gether with the time and place of hearing and ahall be mailed, postage prepaid, to Minority enterpriae which marketed ca- the permittee to the addresa given in the ble eubacriptions for cable company and rental permit appGcation not lesa than two ot its employees brought§ 1981 cisima frve (� days prior to the date set for against csble company. On motions for hearing. summary judgment, the Di�trict Court, Za- The decision of the city msnagec in gel, J., held that (1) plaintiffa failed to refusing to grant, or revoldng, a rental demonatrate direct evidence of discrimina- permit ahall be appealable. The pern�it- tion; (2) minority eaterprise was not tee ahall have the right to agpeal the coerced'u►to laying off two black employeea decision of the city manager to the city for two montha on basis of discrimination; council. Such appeal ahall be takea by (3) asaignment ot neighborhoade for mar 151ing a notice of appeal including a state- keting eervicea was not done in s discrimi- � � o g� �� s � ORDINANCE NO. � AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS AMENDING CHAPTER 20 OF THE GRAPEVINE CODE OF ORDINANCES, STREETS, SIDEWALKS AND OTHER PUBLIC WAYS, RELATIVE TO NEWSRACKS, PROVIDING AMENDMENTS TO SAME, PROVIDING A PURPOSE AND INTENT; DEFINING TERMS; PROHIBITING NEWSRACKS ON PUBLIC STREETS, SIDEWALKS, ALLEY'S AND OTHER PUBLIC RIGHTS OF WAY AND PROPERTY OWNED BY THE CITY OF GRAPEVINE WITHIN CERTAIN HISTORIC AREAS OF THE CITY; PROVIDING FOR THE REMOVAL OF NEWSRACKS FOR VIOLATIONS OF THIS ORDINANCE; REPEALING CONFLICTING ORDINANCES; PROVIDING A PENALTY NOT TO EXCEED $100; PROVIDING A SAVING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council has recognized the important cultural and educational significance of the City's historic properties and districts by designating such areas as Historic Districts and Landmarks, and creating zoning overlay districts; �`� and WHEREAS, the City Council has established extensive and restrictive ordinances and design criteria for such districts and landmarks in order to maintain their historic aesthetics and integrity and enhance the City's historic architecture; and WHEREAS, the City has invested significantly in the preservation of its historic aesthetics and architecture, including instituting and funding the installation of a fire sprinkler system within buildings along the City's historic Main Street; and WHEREAS, the City Council finds and declares that the installation of newsracks located in the public right-of-way must be regulated in order to ensure safe and unobstructed passage of pedestrians over those portions of the public right-of-way open and not open to vehicular traffic; and WHEREAS, the proliferation of newsracks can impede pedestrian traffic, including requirements for disability access and pose a significant hazard and inconvenience to pedestrians, abutting landowners, property, and vehicular traffic; and WHEREAS, the lack of uniform design and appearance standards for newsracks and other street furniture and streetscape creates visual clutter and blight and has a deleterious effect on the aesthetic quality of the city's public right-of-way in general; and WHEREAS, the aforementioned issues presented by newsracks are exacerbated �_ in and around the City's Historic Districts, the Township (platted as the Original Town of Grapevine), and Landmarks, and such newsracks threaten the aesthetic goal of enhancing the City's historic architecture; and WHEREAS, the City Council finds that there are reasonable alternatives available for the publishers of newspapers to display and sell their newspapers; and WHEREAS, the City determines that prohibiting the placement of newsracks upon any public street, sidewalk, alley or any other public right -of-way or City owned property in the City's Historic Districts, the Township, and Landmarks is necessary to protect the historic aesthetics and integrity of such areas; and WHEREAS, the City Council determines that this prohibition represents the least restrictive means available to protect the historic aesthetics and integrity of the City's historic areas; and WHEREAS, the City intends this ordinance to be applied and enforced on a content-neutral basis; and WHEREAS, the City of Grapevine is authorized by law to adopt the provisions contained herein, and has complied with all the prerequisites necessary for the passage of this Ordinance, including but not limited to the Open Meetings Acfi and ,�:.�, WHEREAS, the purposes of this Ordinance are to promote the public health, safety, and general welfare of the citizens of the City of Grapevine. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. Section 2. That Chapter 20, Streets, Sidewalks and other Public Ways, of the Grapevine Code of Ordinances is hereby amended by the addition of a new Section 20- 20, Newsracks Placed Within Public Right-of-Way Prohibited, to read as follows: "Sec. 20-20. Newsracks placed within public right-of-way in historic areas prohibited. (a) It shall be unlawful for any person to place, operate or maintain any newsrack upon any public street, sidewalk, alley or any other public right -of-way or City owned property, located within any property designated with a Historic Zoning Overlay District, Individual Landmark, the Grapevine Township District, or property designated on the National Register of Historic Places. ORD. NO. 2 For the purposes of this section, newsrack shall be defined as any self service free, coin, cash or credit card operated container, rack, or structure used or maintained for the display distribution, or sale of newspapers, periodicals, or other publications. (b) Procedure for Abatement: The Building Official or his designee shall notify the owner of any newsrack placed upon public right-of- way or City owned property in violation of this ordinance that such newsrack shall be removed. Such notification shall be by one of the following methods: (1) Mailing the owner of such newsrack a letter demanding removal. (2) Posting of a notice on the newsrack demanding removal. (3) Publication in the official newspaper of the City an order to remove the newsrack. After the expiration of seven (7) days following the notification, the City shall remove the newsrack. The City will keep the newsrack for a period ���- of at least seven (7) days and shall return the newsrack upon request provided the owner reimburses the City for any and all expenses incu rred." Section 3. That a person who installs, operates, or maintains any newsrack upon any public street, sidewalk, alley, or other public right-of-way or property owned by the City of Grapevine within the City in violation of this Section is guilty of an offense and upon conviction, is subject to a fine not to exceed one hundred dollars ($100) for each day that the violation exists. The penalties provided for in this Section are in addition to any other enforcement remedies that the City may have, other City Ordinances, or State Law. Section 4. That all ordinances or any parts thereof in conflict with the terms of this ordinance shall be and hereby are deemed repealed and of no force or effect. Section 5. That if any section, subsection, sentence, clause or phrase of this ordinance shall for any reason be held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. Section 6. That the fact that the present ordinances and regulations of the City of Grapevine, Texas are inadequate to properly safeguard the health, safety, morals, peace and general welfare of the inhabitants of the City of Grapevine, Texas, creates an ORD. NO. 3 emergency for the immediate preservation of the public business, property, health, �w safety and general welfare of the public which requires that this ordinance shall become effective from and after the date of its passage, and it is accordingly so ordained. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, on this the 18th day of November, 2008. APPROVED: ATTEST: APPROVED AS TO FORM: ORD. NO. 4 Page 1 of 1 Stephanie Rivera-HDGA voting .:-.:<-i�'rom: "James A. Humphrey" < 'I'a; <rsstewart@grapevinetexas.gov>, "Darlene F." <jfreedl@hottnail.com>;<mlease@structuras- interiors.com>, "Shane Wilbanks" �swilbanks@grapevinetexas.gov>, "Sharron Spencer" <SMSSTX@earthlink.net>,<ccoy@grapevinetexas.gov>, "Bruno Rumbelow" <Brumbelow(a�grapevinetexas.gov> Date: 8/29/2008 11:03 AM Subject: HDGA voting Attachments: 23rd Tarrant.doc Greetings Mr. or Ms. City Council Member and Mr.City Manager, The purpose of this email is to officially info�rn the city council and the city manager conceming results of a vote last week by the Historic Downtown Grapevine Association concerning two issues, newspaper and magazine racks downtown and a proposal from the Dallas Fort Worth Toy Run. The voting results follow and the proposal from the Toy Run is attached as a word document. Yoting Results-- Voting concluded end-oj-day,Aug.27,2008 O�cial Ballols Cast: 41 Quorum Satisfred(If al!votes nol casl went 100%jor any position,results would not cl�ang�) The Executive Co»tmittee thanks all our members for tlielr courteous discussions and debate of these lssues and espectally t/tose ofyou that /'ollowed your dlscussions wlih a vot� "DGA Of�icial�alIot-08/20/08. L�To establish an ojficial HDGA position,the foUowing stalement wiU be used: � The I�Iistoric Downtown Grapevine Association(HDGA)urges removal of all exterior newspaper and magazine racks(free or otherwise)from the historical footprint area of downtown Grapevine as being eyesores and safety hazards. Results: I agree-33 I do not agree-6 Abstain-2 In response to an offkia!request from llie Fort Wortli/Dallas Toy Run jor ADGA to lead a[obbying e,JJ"'ort wteh the chamber of commerce, the ciry,th¢eity eouncll and any other lnterested parttes in supporl ojth¢Toy Run's speetflc proposa!presented to HDGA and distributed durfng the August 20,2008,general meeting,my vote rs: Results: Yes,HDGA should-34 No,HDGA shoald not-7 Abstain-0 Thank you, James A. Humphrey President, HDGA � file://C:1Documents and Settings\wsid1011\Local Settings\Temp�XPgrpwise\48B7DB9DGRPVNCHSCP... 8/29/2008