Last week, I wrote about public works mowing mishaps that resulted in damage to private property. And our theme of the intersection of public and private land continues.
At its meeting Tuesday, the Port Orchard City Council discussed a disconnect between its own code, which calls on private property owners to maintain and repair sidewalks, and the city’s practice of making repairs on its own dime.
At the same meeting, the council considered the question of sidewalk bistro tables. Bay Street Bistro, earlier this year got permission from the city to place tables on the sidewalk, European cafe-style. The request was screened by the public property committee and later approved by the council.
In the past, the city has regulated things like sandwich boards, tables of merchandise and other temporary sidewalk accoutrements as an accessibility issue overseen by the code enforcement officer. ADA rules require at least four feet of passage on sidewalks. Bistro tables must adhere to that regulation, as well.
With the Bay Street Bistro’s request, and a later request from
Cafe Gabrielle, the council discussed a more formal process of
permitting and oversight.
They initially suggested charging a fee of $10 per month for business owners whose applications for sidewalk tables or benches are approved. But Public Works Director Mark Dorsey reminded the council that the sidewalk right-of-way is actually under the state Department of Transportation, which owns Highway 166 (Bay Street).
Dorsey at an earlier meeting with the council opined that the city shouldn’t be the one charging a fee, since the ROW belongs to the state. The ROW runs from the center line of the road to the edge of the building.
Dorsey thought (mistakenly he later found) that the issue of jurisdictional authority could be resolved if the city simply didn’t charge a fee with its sidewalk table permit. He called the DOT and spoke to an official who said not only should the city not charge a fee, they had no authority to grant the sidewalk table permit in the first place. That ball is in the DOT’s court, Dorsey was told.
The state would charge about $90 a month for granting permission to place bistro tables in the right-of-way, he found.
“They take it very seriously that someone is using that right-of-way and making money off it,” Dorsey said.
The council stepped out as middleman Tuesday by approving a revised city permit (that would still give the city oversight over ADA issues) with a notice/disclaimer that the applicant also needs to apply to the state for use of the right-of-way.
“Whether they do or not is between them and WSDOT,” said City Attorney Greg Jacoby.
Voila, problem solved. The issue of whether business owners can afford the $90 fee becomes “an economic decison on the part of the vendor,” Jacoby said. “That’s really a private business decision.”