Purpose of Report: The purpose of this report is to provide information and direction from staff for consideration of a request from Robert Hollins for approval of a use permit to place a portable outdoor barbecue cooker within the public right-of-way adjacent to 106 W. 10^th Avenue.

Project Description/Objective: The applicant has a portable partially enclosed outdoor cooker trailer which he would like to place within a partial gravel/grassy area of the public street right-of-way located adjacent to his indoor restaurant. The cooker is on wheels and is approximately 7.5 by 12 feet in size. The applicant also has a food preparation trailer which is approximately 5 by 8 feet in size which may also be utilized at this location. No physical changes are planned to the area, other than setting up the cooking trailer(s).

This use permit only pertains to the appropriateness of the outdoor cooker within the public right-of-way, not the associated planned restaurant business activity within the adjacent building, which is a use by right.

Background: The applicant, and/or his associate, Reverend Imo Murray, have operated a portable cooker at various locations around town in the past. The most recent location on south Perkins Road was deemed a zoning violation, lacking any site plan approval or necessary improvements to serve the business use. Imo approached staff several months ago regarding the possibility of locating his operation in the downtown area. It was felt that the pedestrian traffic and availability of public parking spaces would be an asset. Staff explained at that time there were several issues that would need to be addressed and that there were no guarantees when private use of the public right-of-way was proposed.

Imo and the applicant have recently leased and remodeled space from Mr. John Green in the building at 106 W. 10^th Avenue for Imo's Barbecue restaurant. A restaurant is a use by right within the applicable CI, Commercial Intensive zoning district. The applicant's were made aware with issuance of the remodel building permit for the lease space that it did not grant approval for the use of the right-of-way for the cooker, and that would best be addressed through application for the approval of a use permit similar to the way sidewalk café's are handled by the zoning ordinance. Although there is no specific use permit process outlined for the proposed use of the public right-of-way, staff felt the use permit process offered the best way for the applicant and the community to have this request openly and fairly debated and acted upon.

• Urban growth area and the corporate city limits
• Downtown planning subarea
• Downtown overlay area

Discussion: The primary issues which staff feels the commission should direct their attention to include:

• the precedence of granting use of the public right-of-way in this manner
• suitability and impact of the use in this downtown area
• fire hazard or other safety concerns

Staff feels that the precedence in granting private business use of the public rights-of-way is the issue of greatest importance in the review of this request. There are undoubtedly numerous business opportunities which could potentially be enhanced through the use of the public street rights-of-way in some fashion. Approval of this request could open the door for many other requests to utilize the public rights-of-way for private use or gain.

The private use of, or request for the use of, city street rights-of-way is somewhat similar to asking for permission to use someone else's property for your own use. The city has the right and authority to deny such use, but also has some leeway to decide what is or is not an appropriate use. We can review the merits of each request based on the anticipated community benefits versus any possible harmful affects or compromise of the public interest we are to protect in overseeing the use of the rights-of-way.

The downtown subarea has an overall goal to enhance place-making. Downtown is divided into six functional area designations. This subject site is located adjacent to the "retail and financial" functional area which is generally along Main Street to the north of this site, and the "mixed-use" functional area located to the south of this area. A goal is to seek out additional activities to intensify use and share market attractions for the area. Another goal is to enhance downtown as a 24-hour center with a greater mix of uses, including new food and drink establishments. Safe, comfortable, and attractive pedestrian connections should be provided and maintained between various uses in the downtown area.

The downtown overlay area is consistent with the boundaries of the downtown subarea. A relevant objective of the overlay area is to provide design guidelines for the exterior appearance of any altered and/or new structure or signage and to provide siting guidelines for the placement of buildings, any parking, and access and landscaping. This goal means that we care about the appearance of our downtown area. We should consider whether the placement of the cooker trailer at its proposed location will detract from the visual appearance or quality of the downtown area. The proposed location is not within the direct Main Street visual corridor, but around the corner on 10^th Avenue. This location is on the edge, so to speak of the downtown business area where there is a need for appropriate business activity within some underutilized structures. The cooker trailer is not particularly attractive, and could become an eyesore if pallets or stacks of wood fuel supply is allowed to accumulate around the trailer. On the other hand, the cooker could be a unique visual attention-getter drawing in activity to the area in accordance with our downtown overlay area goals. The applicant does have the option of smoking and/or cooking within the building if appropriately remodeled for such, but it is our understanding that they are really counting on the outdoor cooker with their business plan.

Staff has made comparison of this request to that of a sidewalk café simply in terms of reaching for an appropriate venue for how to respond to the request. It is similar in that sidewalk café's are located in high intensity pedestrian oriented business districts such as downtown, and make use of the public street rights-of-way for private use. Both of the uses are in support of a restaurant business. The cooking trailer, however, differs considerably from seating in terms of its impact on the surrounding area and potential acceptance.

Outdoor cookers do raise concern about fire hazards. Catching the grass or nearby buildings on fire is a risk which the fire marshal wishes to minimize. It has been recommended by the fire marshal that the smoke stack of the cooker be fitted with a spark resister and that no more than one day's supply of combustibles be allowed to be stored on site. In addition, it is recommended that if there is a State burn ban put in place, that cooking not be allowed during the ban period. Risk has also been minimized by locating the cooker a minimum of 15 feet away from the nearest building wall. This has also kept the existing sidewalk area free and clear of the trailer use.

The only other relevant safety concern is maintaining visibility up and down the street and when exiting from the adjacent alley The site plan has proposed that the cooker be located as far away from the alley, but still within the grassy area so as to not eliminate existing public parking spaces which are along the rest of the street on east.

Drainage Plan Approval: It was determined that no drainage study or plan would be necessary for the proposed use or activity if approved

Applicant Fees: A non-refundable application review fee of $250 dollars has been paid.

Budget Impact: This item requires no new appropriation or budget amendment and should not affect year-end projected balances.

Alternatives:

1. Approve this use permit subject to the conditions listed within the recommendation below.
2. Deny this request if it is deemed to have potential harmful affects or if considered an inappropriate use of the public street right-of-way.

Recommendation: City staff is neutral on approval of this request, recognizing possible negative impacts and precedence setting in terms of private use of the public right-of-way, but also see benefits in promoting a small business and encouraging a mix of uses within the downtown area.

It is recommended that if approval of the use permit is granted, that it be conditional on:

1. No outdoor seating or the sale or consumption of food outdoors.
2. Use of the public right-of-way is restricted to the grassy location and area designated on the associated site plan.
3. Installation of a spark resister on the stack of the cooker.
4. That no more than one day's use of combustibles to be stored on site at one time.
5. That cooking not be allowed during State declared burn bans.