December 3, 2024
Public Works
DATE: December 3, 2024
TO: Mayor Martinez and Members of the City Council
FROM: Robert Armijo, PE, Deputy Director of Public Works / City Engineer
Dave Aleshire, City Attorney
Kimberly Chin, Senior Assistant City Attorney
Subject: Appeal of Encroachment Permit (#EN23-00843) Denial for Up & Under Pub & Grill BBQ Smoker
FINANCIAL IMPACT: There are no direct financial impacts to the City. The applicant has paid all required fees for the permit
application and appeal process. Additional City staff time may be required to finalize a resolution, and any future compliance agreement may involve additional permitting
or inspection fees, which could result in further costs to the Applicant.
PREVIOUS COUNCIL
ACTION:
September 24, 2024
STATEMENT OF THE
ISSUE:
Nathan Trivers, owner of the Up & Under Pub & Grill,
appealed the City Engineer's denial of encroachment
permit application #EN23-00843 to place a BBQ smoker
on the public sidewalk at 2 West Richmond Avenue. After the City Council voted to continue the item to allow for an agreeable plan to be brought forth, City staff received a proposal from Applicant, which includes entering into a compliance agreement. City staff seeks City Council
guidance on the proposal and compliance agreement
and recommends continuing the matter to February 4,
2025, to finalize a resolution.
AGENDA
REPORT
December 3, 2024
RECOMMENDED ACTION: RECEIVE AND APPROVE an update on the appeal of an encroachment permit application #EN23-00843 for the
Up & Under Pub & Grill, PROVIDE guidance on the
Applicant’s proposal and the draft Compliance
Agreement, and CONTINUE this item to February 4,
2025 for presentation of the final Compliance Agreement. – Public Works (Robert Armijo 510-620-5477) / City
Attorney’s Office (Dave Aleshire 510-620-3509) PUBLIC
HEARING IS CLOSED; COUNCIL DELIBERATION
ONLY. Update on the Appeal of Encroachment Permit
Application #EN23-00843 for the Up & Under Pub & Grill
DISCUSSION:
On September 24, 2024, the Richmond City Council considered an appeal filed by Nathan Trivers, owner of the Up & Under Pub & Grill, (“Applicant”) regarding the denial of encroachment permit application #EN23-00843. The application sought approval to place a BBQ smoker/grill on the public sidewalk/roadway adjacent to the business at 2 West Richmond Avenue. After conducting and concluding a public hearing, the City Council voted to continue the item to December 3, 2024, to allow for an agreeable plan to be brought forth to address all issues that were presented by the City, including issues with the parklet. If no agreeable plan was brought forth, the BBQ smoker/grill would be removed.
The denial of the encroachment permit was based on multiple factors, including but not limited to fire safety concerns under the California Fire Code, non-compliance with numerous Richmond Municipal Code provisions, and complaints from community members. City staff further raised issues regarding the management of public right-of- way, air quality compliance under Bay Area Air Quality Management District regulations, and proximity to combustible materials. The denial was intended to safeguard public safety and minimize liability to the City.
Since the September 2024 meeting, City staff sent letters to Mr. Trivers on October 7, 2024 and October 29, 2024, which reiterated the City Council’s action, clarified the issues to be resolved, and outlined suggested corrective actions. The issues to be addressed included: (1) the BBQ grill/smoker, (2) the parklet located on W. Richmond Avenue, (3) the outdoor dining area currently located across Railroad Avenue, near the railroad tracks, and (4) the outdoor dining area immediately adjacent to the building on the sidewalk along Railroad Avenue. (Exhibit 1 – City Letter dated and sent on October 7, 2024; Exhibit 2 – City Letter dated and sent on October 29, 2024.)
December 3, 2024
In response, Daniel Butt, attorney for Mr. Trivers, sent two letters on November 19, 2024, proposing potential resolutions. The proposal included:
1. Moving the BBQ smoker/grill onto private property to a location that can mitigate any concerns of the Fire Department
2. Retaining a Certified Access Specialist to inspect the parklet and provide an accessibility report and complete all recommended work to ensure compliance with the Americans with Disabilities Act.
3. Entering into a compliance agreement with the City to maintain the parklet under terms to be negotiated.
Applicant, through his counsel, expressed a willingness to work in good faith to address the City’s concerns and resolve outstanding issues. (Exhibit 3 – Butt Letter dated October 7, 2024, but not received until November 19, 2024; Exhibit 4 – Butt Letter dated and received on November 19, 2024.)
In response to Applicant’s proposal, on November 21, 2024, the City prepared and sent to Applicant and his counsel a draft Compliance Agreement relating to the BBQ smoker/grill and the parklet. The Compliance Agreement expressly reserves the City’s enforcement rights against the outdoor dining area currently located across Railroad Avenue (near the railroad tracks), the outdoor dining area immediately adjacent to the building on the sidewalk along Railroad Avenue, and any future violations. (Exhibit 5 – Draft Compliance Agreement.)
City staff is requesting that the City Council move to receive and accept this update and provide guidance on the Applicant’s proposal and the draft Compliance Agreement.
Given the complexity of the issues and the need for further coordination with Mr.
Trivers, City staff further recommends that the City Council continue this item to the February 4, 2025, City Council meeting to allow City staff and the Applicant to finalize a Compliance Agreement that complies with applicable local, state, and federal laws and regulations while also addressing Applicant’s operational needs. Should a Compliance Agreement not be finalized by the time the agenda for the February 4, 2025, meeting is published, City Council should uphold the denial of Applicant’s encroachment permit application and direct City staff to proceed with enforcement action relating to the parklet, the outdoor dining areas, and any future violations at the property.
DOCUMENTS ATTACHED:
Exhibit 1 – City Letter dated and sent on October 7, 2024 Exhibit 2 – City Letter dated and sent on October 29, 2024 Exhibit 3 – Butt Letter dated October 7, 2024, but not received until November 19, 2024
December 3, 2024
Exhibit 4 – Butt Letter dated and received on November 19, 2024 Exhibit 5 – Draft Compliance Agreement