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RESOLUTION NO. __24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RICHMOND,
DENYING THE APPEAL OF NATHAN TRIVERS, OWNER OF UP & UNDER PUB &
GRILL, AND UPHOLDING THE DENIAL OF ENCROACHMENT PERMIT
APPLICATION #EN23-00843 FOR PLACEMENT OF A BBQ SMOKER ON THE PUBLIC SIDEWALK OR STREET ADJACENT TO 2 WEST RICHMOND AVENUE
WHEREAS, the City of Richmond Code Enforcement Unit previously issued a notice of violation and demand to abate on February 9, 2023 and an administrative citation on March 3, 2023 under Code Enforcement Case No. CE23-000077 to the owner of 2 West Richmond Avenue and the tenant, Up & Under Pub & Grill, at 2 West Richmond Avenue for storing a BBQ grill on a city street in violation of Richmond Municipal Code (“RMC”) section
12.28.040; and
WHEREAS, Applicant Nathan Trivers (“Applicant”), owner of Up & Under Pub & Grill, appealed the administrative citation; and
WHEREAS, the administrative citation was upheld in a written decision dated April 12, 2023; and
WHEREAS, Applicant appealed the written decision dated April 12, 2023; and
WHEREAS, the written decision dated April 12, 2023 was upheld in a written decision dated June 8, 2023; and
WHEREAS, Applicant submitted an encroachment permit application #EN23-00843 dated October 12, 2023, seeking approval to place a BBQ smoker on the public sidewalk/street adjacent to 2 West Richmond Avenue; and
WHEREAS, the Public Works Department with the support of other City Departments reviewed the application and the City Engineer denied it on July 31, 2024, due to concerns including fire safety, non-compliance with municipal codes, community complaints, and public right-of-way management; and
WHEREAS, the Applicant submitted a written appeal to the City Clerk under RMC
12.30.290 challenging the denial;
WHEREAS, on September 12, 2024, the City Clerk mailed, via overnight mail, a letter to the Applicant advising that the hearing of his appeal had been scheduled for the September 24, 2024 City Council meeting and included a copy of the Notice of Hearing; and
WHEREAS, the City Council held a hearing on September 24, 2024 in accordance with the City Council Rules of Procedure and Order and received, reviewed, and considered testimony and evidence from City staff, the Applicant, and the public; and
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richmond, as follows:
Section 1. The foregoing recitals are true and correct, and this City Council hereby so finds and determines.
Section 2. After careful consideration of the testimony and evidence at the hearing on September 24, 2024, the City Council makes the following findings of facts:
1. The Applicant is a tenant at 2 West Richmond Avenue and the owner of Up & Under Pub & Grill.
2. Applicant has placed a BBQ smoker on the street/sidewalk adjacent to 2 West Richmond Avenue since 2010.
3. Photographs taken in February 2023 show the BBQ smoker near an active roadway intersection, next to a parklet, and adjacent to a sidewalk. The photographs also show a tree and building nearby.
4. The City has received complaints concerning the placement of the BBQ smoker in the public right-of-way.
5. The City is responsible for managing public rights-of-way and public areas and maintaining them in a clean, safe, and accessible condition as set forth in the Richmond Municipal Code, including but not limited to Chapters 11.96, 12.28, and 12.30.
6. The City has not received information showing that allowing the BBQ smoker on the sidewalk/street would be compliant with Bay Area Air Quality Management District regulations, the Americans with Disabilities Act, and applicable health and safety, fire, and building code provisions.
Section 3. Based on the foregoing findings of facts and the evidence and testimony presented at the hearing on September 24, 2024, the City Council hereby denies the appeal and upholds the City Engineer’s denial of encroachment permit application #EN23-00843, which sought approval to place a BBQ smoker on the public sidewalk/street adjacent to 2 West Richmond Avenue. The evidence shows that allowing a BBQ smoker on the public sidewalk/street adjacent to 2 West Richmond Avenue poses a risk to public safety, violates multiple City code provisions, including but not limited to RMC 11.96.030, 11.96.040, and 12.28.040, and exposes the City to liability risk. The City Engineer’s decision to deny the encroachment permit application is consistent with the City’s prior code enforcement effort and the City’s duty to maintain safety and compliance with regulatory standards.
Section 4. City staff shall continue enforcement of the applicable municipal and state codes and regulations regarding the use of public spaces and public rights of way.
Section 4. This resolution shall take effect immediately upon its passage.
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I hereby certify that the foregoing Resolution of the Council of the City of Richmond was duly passed and adopted at a meeting thereof held September 24, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTENTION:
___________PAMELA CHRISTIAN___________
CLERK OF THE CITY OF RICHMOND
Approved:
Mayor
Approved as to form:
City Attorney