HomeMy WebLinkAbout1989-12-19; City Council; 10428; AMENDMENT TO TITLE 11 OF THE CARLSBAD MUNICIPAL CODE ADDING CHAPTER 11.36 ESTABLISHING LOCATIONS AND STANDARDS FOR NEWSRACKS ON PUBLIC RIGHTS-OF-WAY.t
AB#- TITLE: AMENDMENT TO TITLE 11 OF THE CARLSBAD
MTG. 12/lr/89
DEPT. PLN FOR NEWSRACKS ON PUBLIC RIGHTS-OF-WAY.
MUNICIPAL CODE ADDING CHAPTER 11.36
ESTABLISHING LOCATIONS AND STANDARDS
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i: CITeF CARLSBAD - AGENDeILL '' I
RECOMMENDED ACTION:
Introduce Ordinance No. bb- 77 , establishing locations and standards for newsrac
on public rights-of-way.
ITEM EXPLANATION
The City Code Enforcement Officer has received several complaints this year regard
the placement of newspaper vending machines throughout the City. The right
distribute newspapers in newsracks is protected by the First Amendment, however, i
both federal and California state courts have found broad anti-newsrack ordinance1
be unconstitutional. The courts allow only that municipalities may subject newsra
to "reasonable time, place and manner restrictions" (Exhibit 2).
Currently, the City regulates newspaper racks only with regard to their interfere
with normal pedestrian traffic. Newsracks located in the public rights-of-way howe
can also interfere with the safe flow of vehicular traffic and detract from
appearance of streets, sidewalks and adjacent businesses.
The proposed ordinance addresses both safety and aesthetic issues related to newsr<
in the public rights-of-way, and is the result of an analysis of other city news
ordinances that have survived judicial scrutiny (Exhibit 3). This ordinance contains
following provisions to protect the health, safety and welfare of Carlsbad residen
0 Standards for placement on sidewalks
Standards for placement in residential areas
Standards for maintenance
Standards for display of materials
Standards for enforcement
a
a
Standards for size and overall appearance
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FISCAL, IMPACT
VioIations will be handled on a complaint basis; therefore, fiscal impact cannc.
determined at this time.
EXHIBITS
1. Ordinance No. As- 97,
2. Letter from Legal Intern to Assistant City Attorney
3. Letter from Management Analyst, Planning Department, to Assistant City Att
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ORDINANCE NO. NS-99
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA AMENDING TITLE 11 OF THE CARLSBAD MUNICIPAL CODE BY THE ADDITION
OF CHAPTER 11.36 ESTABLISHING LOCATIONS AND STANDARDS FOR NEWSRACKS ON PUBLIC RIGHTS OF
WAY.
The City Council of the City of Carlsbad does OX
follows:
SECTION I: That Title 11 is amended by the addi
Chapter 11.36 to read as follows:
"Chapter 11.36
LOCATIONS AND STANDARDS FOR NEWSRACKS
ON PUBLIC RIGHTS-OF-WAY
Sections:
11.36.010 Purpose and intent.
11.36.020 Definitions.
11.36.030 Prohibition
11.36.040 Standards for newsracks.
11.36.050 Location of newsracks.
11.36.060 Applicability in residential zones.
11.36.070 Enforcement
11.36.080 Appeal.
11.36.090 Other violations.
11.36.100 Public nuisance.
11.36.110 Abandonment.
11.36.120 Violation.
11.36.130 Constitutionality.
11.36.010 Pumose and intent. The City Council of the City of Carlsbad finds
(a)
declares that:
The uncontrolled placement of newsracks in
rights of way presents an inconvenience and danger to the
and welfare of persons using such rights of way, includin
pedestrians, persons entering and leaving vehicles and bu
and persons performing essential utility, traffic control
emergency services. Newsracks located so as to cause an inconv or danger to persons using public rights of way, and unsi newsracks located therein, constitute public nuisances. The uncontrolled proliferation of newsrack
detracts from the appearance of streets, sidewalks, and a
businesses. The uncontrolled placement of newsracks ir
safe entry and departure of vehicles.
(b)
(c)
(d)
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(e) The uncontrolled placement of newsracks impe
the vision and distracts the attention of motorists and
pedestrians, particularly small children and may cause inji
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the person or property of such persons.
(f) The placement of newsracks without a permit
on detailed findings in public rights of way adjacent to
aesthetics and increases the exposure of residents to noist residential areas, detracts from and reduces neighborhood
traffic volume and hazards and congestion. The provisions and prohibitions hereinafter contained and enacted are in pursuance of and for the purpc
securing and promoting the public safety and general welfa
persons in the City of Carlsbad in their use of public rig1
way.
(9)
11.36.020 Definitions. Whenever the following words and phrases are use this division, they shall have the meaning ascribed to the this section: (a) llDistributerlf shall mean the person respons for placing and maintaining a newsrack in a public right c (b) I1Newsrackv1 shall mean any self-service or c
operated box, container, storage unit, or other dispenser installed, used or maintained for the display, sale or
distribution of publications.
and curb of a roadway, and where there is no sidewalk, thz
right of way. ltParkwayls also includes any area within a I that is not open to vehicular travel.
nature which is dedicated to use by the public for pedesti vehicular travel, and includes, but is not limited to, a E
sidewalk, curb, gutter, crossing, intersection, parkway, 1 alley, lane, mall, court, way, avenue, boulevard, road, rc viaduct, subway, tunnel, bridge, thoroughfare, park, squai any other similar public way. (e) lgRoadwaylt shall mean that part of a public of way that is designated and used primarily for vehicula- travel. 1vSidewalk81 shall mean that part of a publi
of way that is designated and ordinarily used for pedestr
travel.
(c) I1Parkway1l shall mean the area between the s
between the edge of the traveled roadway and the edge of 2
(d) IIPublic Right of Way" shall mean any place
(f)
11.36.030 Prohibition. No person shall knowingly place, install, use o maintain any newsrack which rests in whole or in part up0 or on any portion of a public right of way or which proje onto, into, or over any part of a public right of way exc compliance with the provisions of this chapter.
11.36.040 Standards for newsracks. 26
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! Any newsrack which rests in whole or in part up
or on any portion of a public right of way or which proje
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onto, into, or over any part of a public right of way shall
(a) No newsrack shall exceed 40 inches in heighl
comply with the standards set forth in this section:
(b) No advertising signs or material, other thai
dealing with the name of the publication contained within I
newsrack, shall be displayed on the outside of the newsrac'
(c) Each newsrack shall be equipped with a coin mechanism to permit a person using the machine to secure a immediate refund in the event he is unable to receive the publication paid for. The coin-return mechanisms shall be maintained in good working order. Each newsrack shall have affixed to it in a
readily visible place so as to be seen by anyone using the
newsrack a notice setting forth the name and address of th
distributor and the telephone number of a working telephon
service to call to report a malfunction, or to secure a re the event of a malfunction of the coin-return mechanism, o give the notices provided for in this chapter. Each newsrack shall be maintained in a neat
clean conditions and in good repair at all times. Specifi
but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:
(1) It is reasonably free of dirt and grea
(2) It is reasonably free of chipped ,fade
(3) It is reasonably free of rust and corr
(4) The clear plastic or glass parts there any, through which the publications therein are viewed arc unbroken and reasonably free of cracks, dents, blemishes E
discoloration;
(5) The paper or cardboard parts or insert thereof are reasonably free of tears, peeling or fading; E
(6) The structural parts thereof are not 1 or unduly misshapen.
(f) Newsracks shall have wood grain panels and mount shall be painted gloss black and all newsracks on a shall be the same type.
Newsracks lawfully in existence on June 1,
shall be allowed to remain at the same location, provided
are not determined to be a public nuisance or dangerous tc
public safety or general welfare, for a period of one yea: following adoption of this ordinance. In order to benefi. this subsection, a distributor must report the number and location of all newsracks existing on June 1, 1989 to the Engineering Department within 60 days of the effective da this ordinance which shall compile an inventory of such e newsracks. Such inventory list shall be conclusive as to location and existence of such newsracks. Thereafter, a1 newsracks shall be required to comply with all provisions chapter.
inches in width, or 20 inches in thickness,
(d)
(e)
peeling and cracked paint in the visible painted areas the
in the visible unpainted metal areas thereof;
(4)
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11.36.050 Location of newsracks.
Any newsrack which rests in whole or in part up0 or on any portion of a public right of way or which projec
onto, into, or over any part of a public right of way shal
(a) No newsrack shall be located in whole or in
in any roadway.
(b) Newsracks shall be located at the rear of t
sidewalk farthest from the street or roadway curb (or, if
be no curb, the edge of the roadway) or the wall of a buil Newsracks located near the curb shall be located no less t inches nor more than 24 inches from the roadway edge of th Newsracks located adjacent to a building shall be located
parallel to and not more than 6 inches from the wall there
newsrack shall be located directly in front of any display
of any building abutting a sidewalk or parkway except near
directly opposite a newsstand or another newsrack.
(c) No newsrack shall be chained, bolted, or 01
attached to any fixture located in the public right of wa!
except to other newsracks. (d) Newsracks may be placed next to each other provided that no group of newsracks shall extend for a di: of more than ten feet. (e) No newsrack shall be placed, installed, US< maintained:
(1) Within a 25 foot sight triangle creatc measuring along the curb beginning at the curb return to triangle free of any obstructions in excess of 30" height accordance with City of Carlsbad Engineering Standard Des
Criteria for sight distance for streets.
(2) Within five feet of any fire hydrant,
call box, police call box or other emergency facility.
(3) Within five feet of the outer end of
(4) Within three feet ahead or fifteen fe
the rear of any sign marking a designated bus stop.
(5) Within three feet of the outer end of
bench.
(6) At any location whereby the clear spa the passageway of pedestrians is reduced to less than six
(7) Within three feet of or on any public
improved with lawn, flowers, shrubs, trees or other lands
(8) Within 500 feet of any other three ne
whether or not containing the same issue or edition of th
publication.
(9) Within five feet of a curb painted bl pursuant to the provisions of California Vehicle Code Sec
21458.
(10) Within 500 feet of a school site.
located in accordance with the provisions of this section;
curb. No newsrack shall be located on the sidewalk or par
bench D
The provisions contained in subsection (e) of t section shall not apply if compliance with the provisions
prohibit the placement of newsracks for a distance of 1,( on the same side of the street in the same block.
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11.36.060 A?mlicabilitv in residential zones. Notwithstanding any other provision of this chapt newsracks shall be permitted in the public right-of-way of
public street adjoining land zoned for residential use onl! the street is a prime or major arterial as shown in the
Circulation Element of the General Plan. If no prime or m; arterial is located within one half mile of a residential
neighborhood, distributor may petition the city Engineer fc
right-of-way permit.
11.36.070 Enforcement. Upon a determination by the City Engineer that a
newsrack has been installed, used or maintained in violati
any of the provisions of this Chapter, he shall cause an o be issued to the distributor to correct the offending cond The order shall be telephoned to the distributor and confi mailing a copy of the order by certified mail, return rece requested to the distributor at the address shown on the n required by Section 11.36.040. The order shall specifical describe the offending condition and specify actions neces correct it. If the distributor fails to correct properly of fending condition within three days (excluding Saturdays Sundays and legal holidays) after receipt of the order, or and appeal as permitted under Section 11.36.090 the City E shall cause the offending newsrack to be summarily removed processed as unclaimed property under applicable provision law relating thereto. If the distributor of the offending newsrack cannot be identified, the newsrack shall be remov
immediately and processed as unclaimed property under appl provision of law, The foregoing provisions are not exclus
and are in addition to any other penalty or remedy provide
law.
11.36.080 Ameal. Any person or entity aggrieved by a finding, determination, notice, order or action taken under the prc of this chapter may appeal and shall be advised of his or right to appeal to the City Manager. An appeal must be PE within three working days after receipt of the notice of a
decision or action by filing with the City Engineer a lett appeal briefly stating therein the basis for such appeal. hearing shall be held on a date no more than ten days aft€ receipt of the letter of appeal. Appellant shall be giver least five days notice of the time and place of the hearir
City Manager shall give the appellant and any other inter€
party the reasonable opportunity to be heard, in order to
cause why the determination of the City Engineer should nc upheld. Within five days of the hearing the City Manager
make a written decision. His decision may be appealed to City Council by filing a written notice of appeal with tht
Clerk within ten calendar days of the date of the decisiol
City Manager.
resolution of the City Council.
Fees for filing an appeal shall be set by
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11.36.090 Other violations. In the case of minor violations of this chapter I
can be corrected on the spot, any City employee, as an
alternative to removal of the newsrack, is authorized to cc the violation summarily.
11.36.100 lblic nuisance.
Any newsrack, or any publication offered for sal(
distribution, in violation of this chapter shall constitut( public nuisance, and may be abated in accordance with appl provisions of law.
11.36.110 Abandonment. In the event a newsrack remains empty for a peri
30 continuous days, the same shall be deemed abandoned, an
be treated in the manner as provided in Section 11.36.080
newsracks in violation of the provisions of this chapter.
11.36.120 Violations.
Any person or corporation who violates any of tk
provisions of this chapter is guilty of an infraction exce the fourth or each additional violation of a provision wit
year which shall be a misdemeanor. Penalties for a violat this chapter shall be as designated in Section 1.08.010.
11.36.130 Constitutionalitv.
If any section, subsection, sentence, clause, pl
part of this division is for any reason held to be invalic
unconstitutional by the final decision of any court of cor
jurisdiction, such decision shall not affect the validity
remaining parts of this chapter. The City Council hereby declares that it would have adopted this division and eacl
section subsection, sentence, clause, phrase or part therc
irrespective of the fact that any one or more sections,
subsections, clauses, phrases, or parts be declared inval: unconstitutional. 11
EFFECTIVE DATE: This ordinance shall be effect:
thirty days after its adoption, and the City Clerk shall
to the adoption of this ordinance and cause it to be pub1
least once in the Carlsbad Journal within fifteen days af
adoption.
INTRODUCED AND FIRST READ at a regular meeting
Carlsbad City Council on the 19th day of December
1989, and thereafter
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PASSED AND ADOPTED at a regular meeting of the C
Council of the City of Carlsbad on the 2nd day of Janus
1990, by the following vote, to wit:
AYES: Council Members Lewis, Larson and Pettine
NOES: None
ABSENT: None
ABSTAIN: Council Members Kulchin and Mamaux
7
Y a 0
w February 9, 1989
TO: Assistant City Attorney
FROM : Legal Intern
NEWSPAPER RACK ORDINANCES
CONSTITUTIONAL ISSUES
Both federal courts and California state courts have found brc
anti-newsrack ordinances to be unconstitutional. One of thc cases, California NewsRaRer Publishers Association v. Citv
Burbank (1975) 51 Cal.App.3d 50, 123 Cal.Rptr.880 attempted
prohibit newspaper racks upon any public sidewalk or parkway excc
for a six block downtown mall. The court found this to
and the six block area comprised only one percent of the cit total area. It did not matter that newspaper racks could be
on private property. In another case that same year, 1975, an
Cajon ordinance was also found to be invalid. The city's ration was economic discrimination (allowing the sale of newspapers not other goods) and improving safety and appearance of the stre The court said that the city did not show that newsracks pose r and certain hazards to the well being of its citizens, but t the court might consider ordinances controlling number, si construction, placement and appearance of newsracks to be val A 1976 case, Kash Enterprises v. City of Los Anqeles, (1976)
Cal.Rptr.690 concerned an ordinance regulating the size, condit and placement of newsracks. The court held the purpose was val
it was for safe and clean streets and sidewalks.
.sufficiently narrow setting out objective and definite standar
The case was appealed to the California Supreme Court.
P.2d 1302, 19 Cal.3d 294, 128 Cal.Rptr.53). The Supreme Court a
drawn to constitute reasonable time, place and manner regulati but due process was violated. The enforcement provisions provi that the City could pick up the newsracks, notify the owner, give them 45 days to reclaim them. The court said there were
hearing provisions either pre-taking or post-taking and thus process was violated.
CARLSBAD ORDINANCES
Section 8.32.010(d) provides that nothing in section regarc peddlers, solicitors, vendors, canvassers would be construec prohibit the display or sale of newspapers, magazines or 0' periodicals customarily sold by news vendors on the sidewalks vending racks or machines provided the display or sale does interfere with normal pedestrian traffic.
overbroad saying that you could impose only reasonable restrictic
The ordinance
((1977)
held that the ordinance was sufficiently definite and narrc
.
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ENCROACBMBNT PERMXTg
Section 11.16.040 says that permits are required for any excavat
or opening, fill or obstruction in over, along, on, across,
prohibited is the construction or repair or cause to be construc.
or repair of any curb, sidewalk, etc. The exception to this for poles, guys and anchors for public utility purposes.
It appears from this language that encroachment permits would
seem to be either an excavation or obstruction in any public pla
ORDINANCES SETTING STANDARD FOR NEWSRACKS FROM OTHER CITIES
1. Citv of San Dieao: The City of San Diego has quite a
through any public place for any purpose whatsoever. A
required, as it now stands, since bolting into the sidewalk wo
standards. These include:
A. Nothing in the roadway
B. Certain size
C. Newsracks placed near a curb or against the wall o
building
Newsracks cannot be chained, bolted or otherwise attac
to any property not owned by the owner of the newsr or to any permanently fixed object. They may, howev
be chained together.
E. Newsracks cannot be within three feet of any mar
crosswalk, the curb return of an unmarked crosswalk,
fire hydrant or other emergency call box, of any driw
within a sign marking a designated bus stop of any bench, of any area improved with lawn, flowers, shrL etc.
They cannot be at any location where the clear space the passageway of pedestrians is reduced to less than feet.
G. They cannot be used for advertising signs or public
H. They must have the name and telephone number of
D.
F.
purposes.
vender on the box.
They must be maintained in a clean and neat conditioi
a good repair.
I.
The enforcement provision provides that the distributor will called and then sent a copy of the order by certified mail.
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order describes the offending condition and then gives 1
distributer three days to correct the problem. If he does not, 1
city manager removes the offending newsrack and is put ii
unclaimed property for a period of time.
2. City of Los Anaeles: The City of Los Angeles standards B Similar to San Diego's. It appears as though San Die developed their standards from the case involving Los Angel€
CONCLUSION
Should we determine newsracks pose real and certain hazards, could enact an ordinance. The ordinance would have to inclL definite standards and enforcement provisions that do not viol? due process, The San Diego City language is a good starting plac However, for newsracks identified with vendors name, destruct]
rather than holding the newsrack would be preferred. &-A- &4&?&
BARBARA FISCHER
Legal Intern
rmh
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DATE: MARCH 30, 1989
To : CITY ATTORNEY
From: Management Analyst VIA: Planning Director k*w
VIA: Community Development Director
NEWSPAPER RACK ORDINANCES
In response to your letter dated February 10, 1989, an ordina
regulating news racks is highly recommended by this office.
JUSTIFICATION FOR ORDINANCE
(1) The unregulated placement of news racks affecting the pub right-of-way presents an inconvenience and danger to health, safety and welfare of the inhabitants of the city
that unless regulated, news racks may:
A) Interfere with the safe flow of pedestrian vehicular traffic;
B) Impair the vision and distract the attention
motorists and pedestrians, particularly sm
children, and cause injury to the person or prope
of such persons :
C) Inhibit safe entry and departure from vehicles
buildings;
D) Detract from the appearance of streets, sidewa and adjacent businesses;
E) Cause loss of funds to patrons in the event
malfunction.
(2) News rack ordinances enacted to improve public safety and enhance the aesthetic quality of the community have b upheld in court. Examples are: Socialist Labor Party v. C
of Glendale, 4 Media L. Rep. (BNA) 1700 (Cal. Ct. App. J
12, 1978) and Duffy v. City of Arcadie, March 31, 1987, Daily Journal D.A.R. 7236, Second District Court of Appe In addition, in the 1977 case, Kash Enterprises v. City of Angeles, the provisions of the ordinance regulating the si condition and placement of news racks were found to constitutional. The strength of these provisions lay in th detail and precision. By setting out specific places wh news racks could not be placed - for example, within 3 f
.# e
of any marked cross-walk - the ordinance was self-explanator with respect to the governmental interests it was designed t protect as well as limited in its restrictions. The cour approved of these provisions because, as stated in the case where "(t)he substantive provisions of the challenge ordinance ...... are sufficiently definitive and narrow1 drawn to constitute reasonable 'time, place and manner
regulations of First Amendment activity, .... such provision are ngt unconstitutional 011 their face." The LA ordinanc
as a whole was struck down because it containe
unconstitutional enforcement procedures that were no
severable from the remaining provisions of the ordinance.
RECOMMENDED ORDINANCE
San Diego's ordinance (attachment) is recommended as a model fo our city because, as Barbara Fischer, legal intern, reported, i
is similar to L.A.'s ordinance and it appears as if the standard were developed from the case involving Los Angeles. In addition
it includes enforcement regulations which seem to provide for th due process provisions missing in L.A.'s ordinance.
SUGGESTED ADJUSTMENTS AND ADDITIONS TO BAN DIEGO'S ORDINANCE
1. Adiustments:
(a) Section 62.1004 STANDARDS FOR NEWSRACKS part (a) A
height, width and depth limit of 40, 20 and 20 inches
respectively, as found in the City of Poway's ordinance.
(b) Section 62.1005 LOCATION OF NEWS RACKS - Engineering ha recommended that this section be revised. Examples o suggested revisions include: under part (b) , news racks shoul
. be placed at the back of sidewalks; under part (e), number
1 and 2 should be rewritten so as to maintain a 25 foot sigh triangle; and under part (e) number 4 should read "within te
(10) feet of any driveway.11
2. Addition: Standards for appearance should require that "new
racks shall have wood grain panels and the mount shall b
painted gloss black and all news racks on a tray mount mus
be of the same type", as found in the City of Arcadia'
ordinance.
PROHIBITION IN RESIDENTIAL AREAS
In the interest of protecting and enhancing the aesthetic qualit of our neighborhoods, a section of the ordinance restricting new racks to commercial and industrial areas would be desirable. Th advisability of including such a section, however, is questionable Those courts that have passed on news rack ordinances have foun that the preservation of aesthetics is a legitimate and substantia
governmental interest, but that regulations aimed at advancing thi
interest must be narrowly tailored. Furthermore, the conflictin
outcomes of two recent cases involving this partial ban of new
t e 0
racks requires that every city proceed with caution in this area
In the trial and appellate courts leading to City of Lakewood v Plain Dealer, 56 U.S.L.W. 4611 (1988), 40 ZD 281, where the sui concerned a news rack ordinance including a provision for new
racks in certain commercial areas, but not in residential areas
the trial court upheld the ordinance's constitutionality and th
appellate court upheld the part of the ordinance that banned new racks in all residential areas. In the Supreme Court, the Plai
Dealer did not challenge the Court of Appeals decision uphobdir the total ban of news racks from residential areas, 56 U.S.L.W. 2 4615, n. 7.
In Chicago Newspaper Publishers Association v. City of Wheaton, 65
F. Supp. 1464, 1469-71 (N.D. Ill. 1988), the trial court found thi!
the ban on news racks in residential zoning districts was 2
invalid place and manner restriction. The court ruled that Wheatc
did not show that it had adopted the least restrictive mear available to achieve the goals of promoting motor vehicle ar pedestrian safety and maintaining the residential character c neighborhoods. Conceding that llneighborhood aesthetics are significant governmental interest," the court remarked th, "Wheaton has not explained-much less demonstrated-how a news rac on a residential street destroys the 'character' of tl neighborhood, any more than a mailbox, utility pole, fire hydran'
or traffic sign."
CONCLUSION
In summary, the courts have upheld news rack ordinances supportc
by substantial governmental interests. Traffic facilitation ai
safety, as well as aesthetics, have been found to be sufficiel
governmental interests to justify such ordinances. And, as
practical matter, an ordinance that explicitly describes the
specific interests is more likely to survive judicial scrutiny th
one that does not.
San Diego's ordinance, based on and including explicit descriptio
of these interests should be used as a model €or Carlsba Incorporating a partial ban of news racks prohibiting them fr
residential areas would be desirable but it is recognized that th
may not be advisable.
Please let me know if I can provide any additional information.
Sincerely, 2;:- .-~7$&&
Erin K. Letsch Management Analyst
w .I
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SEC. 62.100 1 10-84
DIVISION 9
NEWSRACKS ON PUBLIC RICHTSaF-WAY
(Added 5-2-74 by Ord. 11312 NS.)
SEC. 62.0901 PURPOSE AND INTENT
The Council of Thc City of San Dicgo finds and declares that: (a) Thc public displa) of pictorial matcrial dcpictinF nudity and scxual conduct in publi. cations containcd in newsracks located on public riehts-of-way is patently offcnsivc and harm- ful to passersby when rradily visiblc to them. and is detrimental to a healthy mod environment to which persons of the City of San Dicgo arc entitled. (b) Such public displays are thrust indiscriminately on childrcn and unwilling adults and constitute assaults upon individual privacy.
(E) Evtry perron is entitled to usc the public rights-of-way in the City of Sin Dicgo without being subjected to such public displays. d) Such public dirplavs constitute a public nuisance. I e) The provisions and prohibitions hereinafter containcd and cnacted arc in pursuance of and for the purposc of securing and promoting thr public health. morals and gcncral wclfarc of persons in the Citv of San Dicgo in thcir use of public rightmf-way. (Added 5-2-74 by Ord. 11512 N.S.)
SEC. 62.0902 DEFINITIONS
Mcnevcr thc follo\rIng words and phrases arc used in this division. they ihdl havc thc meaning ascribcd 10 chcm in this scction:
(a) "Kewsrack" shall mean any self-tcrvicc or coin-opcratcd box, container, itoragc unit, or othcr dispenser installed, used or maintaincd for the display, sale or distribution of publications. (b)"Nu&ty" shall mean the showing with less than a fully opaque covering of the genitals. pubic hair, buttocks, natal cleft, pcrincum, anus or anal rcgion of any person, othcr than a child under the age of puberty, or any portion of thc brtast at or below the areola thcrcof of any female person, other than a child under the agc of puberty. (c) "Scxual Conduct" shall mean an act of sexual intcrcoursc, masturbation, homosexualit), sodomy, bestialit), anal intcrcoursc. oral copulation, flagellation, or other act of sexual '
uousal involving an) phvsid Contact with a pcrson's clothcd or unclothed genitals. pubic repon, pubic hau, buttocks, natal clcft, perineum, anus or anal rcgion, or, if such pcrson bc a female, breast.
(d)"Pictorial Material" shall mean any material sugeesting or conveying a visual imagc. and includes, but is not limited to, a photogra h. painting or drawing. (e)"Public Right-of-way" shall mean any ppacc of any naturc which is dedicated to use
by thc public for pedestrian and vchicular travcl. and includes, but is not limited to. a street. sidcwalk. curb, guttcr. crossing. intersection, parkway, highway. allc). lane. mall. court, way. wenuc, boulcvard. road, roadway, viaduct. subway, tunnel, bridge, thoroughfare, park, square, and any other similar public way. (Added 5-2-74 by Ord. 11312 K.S.)
SEC. 62.0903 PROHIBCTlON
No perron shall knowlingly place or maintain in any ncwsrack which rests in wholeor in part.
upon. in, or on any portion 01 a public riehi-of-wa!, or which projccts onto. into, or OVCT any parr of a public right-of-way, any publication or rnalcrial which whilc In said nrwrnck txpoxs
to public vim: (a) Anv soicmcnrsor wordsdescribing explicit sexual acu. sexual organs. or cxacmcnc whcrc such slaicmcnisor words havc as thcir purposc or cffcci scxual arousal. f~atilication. or afiront (b)Anypiciurcor illusuauon of gcnilals. pubic hair,pcrincums,anuus.orrnal rcgionsof an) person whcrcruch pictureor illusuaiion hasas its purpoxor cffcctscxual uouul, groiification. or affront. (c) Anv picture or illustration depictin cxplicit xxual acts where such picturc or illusualion has as IU purposc or effect sexual arousak, gratifiauon. or affront
(Amcndd 9-10-84 by Ord. 0.36279 N.S.) (Add& 5-2-74 by Chd. 11112 K.S.)
DIVISION 10
NEWSRACKS OS PUBLIC RIGHTS OF WAY - LOCATIONS
(Added 12-6-74 by Ord. 11457 N.S.)
~ -._ --. - ..I SEC. 62.1001 PURPOSE AND INTENT ,*Gd The Council of The City of San Diego finds and declares that: 4
(a) Thc uncontrolled placement of newsracks in public rights of way prtsentr u1 incon-
venience and danger to the safety and welfare of persons using such rights of way. including pedestrians, persons entcring and leaving vehicles and buildings. and persons performing essential utility, traffic control and emcrgcncy services. (b)Ncwsracks so located as to causc an inconvenience or dangcr to pcrsons using public rights of way, and unsightly newsracks located thcrcin, constitutc public nuisances. (c) Thc general welfare requires that the aesthetic appcarancc of public rights of way in thc
6:fv oJ Sn- 3;cvo. :ic'udiqT rhc amcarancc of ncwtricks. bc imrJrovcd
L-0 Q I
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SEC. 62. I00 I 10-84 -4
(d)Thc provisions and prohibitions hcrcinaftcr contained and enacted arc in pursuance of and for tht purpose of securing and promoting thc public safety and gcnerd welfare of perrons in thc CI~) of San Dicpo in thcir usc of public rights of wa). (Added 12-6-74 by Ord. 11457 X.S.)
SEC. 62.1002 DEFISITIOSS
Whenc\er the following words and phrases arc used in this division, they shall have thc
meaning arrribcd to thcm in this section: (a) “Distributor” shall mean the person responsible for placing and maintaining a newsrack in a ublic right of way. (1) “Newsrack” shall mean any self-service or coin-opentcd box, container. storage unit,
or other dispcnser installed, used or maintaincd for the display, sac or distribution of publications. (c) “Parkway” shall mean the aria between the sidewalk and the curb of a roadway. and and where there is no sidewalk, that area between the edge of the tnveled roadway and the edge of a public right of way. “Parkway” also includes my area within a roadway that is not open to vehicular travel. (d)“Public Richt of Way” shall mean any placc of my nature which is dedicated to use by the public for pedestrian and vehicular travel, and includes. but is not limited to. a street. sidewalk, curb. gutter. crossing, intcncction, parkway, highway. dley. lane. mall. court, wa).. avenue, houlevard. road, roadwav, viaduct. subwas. tunnel, bridpe. thorouRhfarc. park, square, and any other similar public way.
(e) “Roadway” shall mean that part of a public right of way that is desipnarcd and used primarily for vehicular travel. (f) “Sidewalk” shall mean that part of a public right of way that is desipated and
ordinarily used for pcdcstrian travcl, (Added 12-6-74 by Ord. 11457 N.S.)
SEC. 62.1003 PROHlBlflON
No perron shall knowingly place. install, use or maintain MV ncusrack which rcsts in
whole or in part upon, in, or on any portion of a public right of way or which projects onto, into, or over any part of a public right of way except in compliance with the provisions of this division. (Added 12-6-74 by Ord. 11457 N.S.)
SEC. 62.1004 STANDARDS €OR NEWSRACKS
Any newsrack which rests in whole or in part upon. in, or on any portion of a public right of way or which projects onto, into, or over any pan of a public right of way shall comply with the standards set forth in this section: (a) No newsrack shall exceed sixty (60) inches in height, thiny (SO) inches in width, or twenty-four (24) inches in thickness. (b) No advertising sips or material, other than those dealing with the name of the publica- tion contained within thc newsrack, shall be displayed on the outside of any newsrack. (c) Each newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate =fund in the event he is unable to receivc the publication paid for. The coin-return mechanisms shall be maintained in rood working order.
(d)Each newsrack shdl have affixed to it in a rcadily visible place so as to be seen by anyone using the nnvsrack a notice retting fonh the name and address of the distributor
and the telephone number of a working telephone service to call to report a malfuncrion. 01 to tccurc a refund In [hc cvcn( of a mdfunction of the coin-return mechhsm, or to
(e) Each newsrack shall be maintained in a nut and clean condition and in good repair
at dl times. Specifidly. but without limiting the generality of the foregoing, each newsrack shall bc serviccd and mainrajned so bat: (I) it is reasonably free of din and pest; (2) it is reasonably free of chipped, faded, peeling and cracked paint in the visible painted mas thereof; (3) it is reasonably free of rust and corrosion in thc visible unpainted metal mas thereof; (4) the clear plastic or %us parts thereof, if any, through which the publications therein arc viewed are unbroken and ‘reasonably tree of cracks, dents, blemishes and discoloration; (5) the paper or cudboard parts or inserts thereof are reasonably free of tears. peeling or fading: and (6) the structural puts thereof arc not broken or unduly misrhapcn.
SEC. 62.1005 LUCATION OF NEWSRACKS
Any newsrack which rests in whole or in put upon, in, or on any portion of a public
right of way or which projects onto, into, or over any part of a public right of way shall be located in accordance with the provisions of lhir section: (I) No newsrack shall be located in whole or in put in any roadway. (b)Newsracks shall bc located only near the curb (or, if them be no curb, the cdv of the roadway) or the wall of a building. Newsracks located near the curb shall be located no less than eighteen (18) inches nor more than twenty-four (24) inches from the roadway cdpc of the curb. Newsracks located adjacent to a building shall bc located parallel to and not
gikc iitc .Butice, provided ivr in .his iivirioti.
(Added 126-74 by Ord. 11457 N.S.
i-349
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6-85 SEC. 62. IMX
1.
morc than six (6) inchcs from ihc wall thcrcof. No ncwsrack shall bc located dircctly in front of any display window of any building abutting a sidewalk or parkway cxccpt ncar
ncwsstand or anothrr newsrack. (c) No ncwsrack shall bc chajncd, bolted, or othcnvisr ntrnchcd to my fixturc locatcd
in thc public right of way, cxccpt to othcr ncwsracks. (d)Ncwsracks may bc placcd next to each othcr. provided that no poup of ncwsracks shall cxtcnd for adistancc of mort than ten (1 0) kt along a curb, anda space of not less than fivc (5) fm shall scparatc each group of nrwsracks.
f thc curb. No ncwsrack shall be located on thc sidcwalk or parkway dircctly opposite a
(c) No ncwrrack shall be placcd, installcd, used or maintained: 1 Within three (3) fcct of any markcd crosswalk. 2 Within twelve 12) fcct of the nub ntum of any unmarked crosswalk.
4 Within three (3) fcct of any driveway.
ii 5 Within three I 3) fcct of any firc hydrant, firc call box, policc cd box or other
1) 5 Wthin three (3) fect ahcad or fifteen (15) feet to thc mar of any sign marking
(6 Within thrct (3) fcct of thc outer end of any bu5 bench. (71 At any location whcrrby thc clcar space for the passagcway of pedestrians is rcduccd to less than six (6) fect. (8) Within thrcc (3) fect of or on any public arca improved with lawn, flowcrs, shrubs, trccs or othcr landscaping. (9) Within onc hundrcd (100) fcct of any othcr newsrack on the samc sidc of thc strcct in thc samc block containing thc samt issuc or cdition of thc samc publication. (10) Within five (51 kt of a curb paint4 blue, pursuant to the provisioncol California Vehicle C<dr section 21458 Thc provisions contamcd in subscction (c) of this scction shall not apply if compliance with thc provisions would prohibit the placcmcnt of ncwsracks for a distancc of onc hundrcd fifty (150) fect on the samc sidc of thc strcct in thc same block.
(Added 12-6-74 by Ord. 11457 N.S.)
cmcrgcncy facility.
a dcripatcd bus stop.
(Added 5-20-85 by 0-16429 N.S.)
SEC. 62.1006 UNIFORM NEWSRACKS REQUIRED AT CERTAIN LOCATIONS
(a) Thc cluttcr and congcstion of numerous disparate typo of ncwsracb at ccrtain locations in the public rights of way is detrimental to the public safety. convcnicncc and gcncral wcl-
( fare. Accordingly, thc public inttrest requires that ncwsrack facilitics of uniform and CO- ordinatcd construction and appearance bc utilizcd at such locations. (b)Thc City Managcr shall implcmcnt this policy by dctcnnining, from timc to timc, which locations rcquirc any such facilities and by dctcrmining thc standards for such facilitjcs at each such location. [:)ne City Manager shall makc such dctcrminationr for cach such location only after holding a public hcaring on thc subject at which all perrons interested shall be ivtn a
reasonable opportunity to be heard. The City Managcr shall conduct a public hearing whcn it is brought to his attcntion by his own investigations. a mcmbcr of the City Council, ncwspapcr distributor, civic organization, c s. or by any othcr mcans, that certain lo- cations might rcquirc uniform ncwsrack fa s. Notice of such public hearing shall be givcn to cach person rcasonably known to him to be maintaining a ncwsrack or ncwsracks within thc public right of way, and to cach person who has rcqucstcd, in writing, that a public hearing be hcld. (d)h dctcrminhg which locations, if any, rcquirc uniform ncwsrack facilities, thc City Managcr shall make the following findings: (I) the location contains four or morc ncws- racks within a spacc of fifty (50) fcct; (2) tht location is an arca cxtcnsivcly uwd by thc gcncral public and camcs a hcavy volumc of pcdcstrian traffic; and (3) such uniform ncwrrack facilities arc fcasiblc at that location. (e) In determining thc typcs of uniform ncwsrack facilities to be rcquircd at cach such location, thc City hlanagcr shall apply thc following guidelines: (1 ) Thc ncwsrack facilitics shall be located so as to maximize thc public convcnicnce and safcty. both as to acccssibility to thc ncwsracks and thc usc of thc public right of way as a thoroughfarc, and the aesthetic appcarancc of thc area. (2)Thc typc and appearance, including colors, of thc ncwuack facilitics shall blend with thc surroundings of the particular location to thc extent practicablc. (5) Thc most economical typcs of ncwsrack facilities shall bc rclectcd, consistcnt with the ends to bc achicvcd.
(4) Absolutc uniformity in sitc and configuration shall not necessarily bc rtquired. For cxamplc. largcr or multiple ncwsracks may be pcrmittcd for bulky or frcqucntly issucd publications and smaller units may be pcrmittcd for smaller publications or publications
(5) Standards shall br specified so as to permit a rcasonably wide lCkCtiOn Of newsrack
with grcarcr intervals of issuance.
facilities available on thc markca. Manufacturcrs shall not bc specified by name uniets cquivalcnts arc also permitted, nor shall thc standards be so narrowly drawn U to restrict the sclcction to only one proprictaxy brand.
(f) Thc City Managcr shall mducc his findinp to writing and shdl givc writtcn noticc thcrcof to thc pcrsons rcfcrrcd to in subsection (c) of this section prior to their implcmentation. (g) Thc City shall. at its cxpcnse, furnish. install and maintain the common supporting stmcturcs. if any, for such ncwrrackc. The distributors of cach publication shall, at their
375-1
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1
b
SEC. 62.1006 6-65
cxpcnsc, furnish, install and maintain the individual ncwsrack units. Except u applied by thc City Manager. thc provisions of Section 62.1005 ihd not apply to ncwirrcki installcd and
mincd by the City Manager, the provisions of this division shall apply fully to newsrack facilit- ies instdcd punuant to this section.
(h) Aftcr the City Manager has made said determinations, and after the City hm installed thc supporting SLNCturCs or Lhc location is othcmisc rcady for thc individual ncwsrack units to bc installcd. no person hall place, install, ut or maintain any ncwsrack at that location cxccpt in conformance with thc standards prescribed thcrcfor by the City Managcr. "Location" as uscd in the forcgoing scntencc hall mean any placc within one hundrcd fifr) (150) feet of the placc designated for the installation of said uniform ncwsrackr unless it is
rparatcd thcrcfrom by a street or a sidewalk comer. Nothing herein contained rhd bc con- stNed to prevcnt a distributor from using a nonconforming ncwsrack during thc pcriod that
(1) an adequate supporting structure is not available; or (2) he cannot obtain a conforming ncwsrack unit because one it not available; or (3) his unit is undcrgoing necdcd rmintcnancc or rcpairs and a replacement is not reasonably available; or (4) he b diligently proceeding to rcplacc a unit; or (5) an emergency cxitts during which he would othcnvisc be prevcntcd from distributing his publications by means of a ncwrrack at that location, provided that hc acts diligently to corrcct thc situation. (i) The relative location of individual newsrack units shall be dctcrmincd and may bc rotated from timc to timc by agreement among the distributors. Should thcy bc unablc to
agrcc. thc City hianagcr shall annually dctcrminc the relative location by lot.
SIC. 62.1007 ENFORCEMENT
Upon a dctcrmination by thc City Managcr that a ncwsrack has bccn installcd. used or main- taincd in violation of any of the provisions of this division, he shall cause an ordcr to bc issucd to thc distributor to corrcct the offending condition. Thc order shall be tclcphoncd to the
rcqucstcd, to thc distributor at the address shown on the notice rcquircd by Sccrion 62.1004(d). Thc order shall specifically dcscribc the offending condition and suggest actions ncccssq to correct it. If thc distributor fails to concct propcrly thc offending condition within threc (3) days (excluding Saturdays, Sundays and legal holidays) after receipt of thc ordcr, the City Manager ihdl cause thc offending ncwsrack to be summarily rcmovcd and pro- ccsscd as unclaimed property undcr applicablc provisions of law relating thcrcto. If thc dis. tributor of thr offcnding ncwsrack cannot be idcntificd, thc ncwsrack shall br rcmovrd immcdiatcly and proccsscd as unclaimed property undcr applicablc provisions of law. Thc forc- going provisions arc not cxclusivc, and are in addition to any other pcndty or rcmcdy pro- vidcd by law.
SEC. 62.1008 APPEAL
Within ten (IO) days aftcr rcceipt of the deasion of thr City Manager pursuant to thc pro. visions of Section 62.1006(f), any party affected by the dccision may filc with the Cit). CIcrk a written rcqucst for a public hearing bcforc the City Council. Upon thc fding of such a rcqucst.
the City Clerk shall set a timc and place for the hearing and shall notify thc party thcrcof at least five (5) days bcforc thc hearing date. The hearing shall be held within thirty (30) da).s aftcr thc rcqucst is ficd. The dccision of the City Council shd bc final in thc abscncc of fraud or collusion.
maintained pursuant to this rcction. Subject to thc forcgoing, Md cxccpt as otherwise dttcr.
(Added 126-74 by Ord. 11457 N.S.)
distributor and confirmed by mailing a COPY of the order by certified mad, rttum rcccipl
(Added 12-6-74 by Ord. 11457 N.S.)
(Added 12-6-74 by Ord. 11457 NS.)
SEC. 62.1009 OTHER VIOLATlONS
In thc case o! minor violations of this division that can bc corrcctcd on thc spot, 11s Cir,
employee, u an alternative to removal of the newsrack, is authorized to correct thc violation summarily.
(Added 12-6-74 by Ord. 11457 N.S.)
SEC. 62.1010 PUBLIC NUISANCE
Any ncwsrack, or any publication offercd for ralc or distribution, in violation of this divi- sion shall conititutc a public nuisance, and may be abated in accordancc with applicable pro-
(Addcd 12-6-74 by Ord. 11457 N.S.) - visions of law.
SEC. 62.1011 ABANDONMENT
In the wcnt a ncwsrack rcrminr empty for a pcriod of thirty (30) continuous days, the same shdl bc dccmcd abandoned, and may bc trcatcd in thc manncr as provided in Section 62.1007 for ncwsrackr in \;iolation of thc provisions of this division. (Added 12-6-74 by Old. 11457 NS.)
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il q
b
4-75 w. 62.101 f
SEC. 62.1012 CfTY WAGER'S DESICNAT'ED REtRESENTATlVE
"City Il.aurr" u urd fa this dMdoa rhll We hb daiclytcd repmaatatin. (Added 14674 by Ord. 11457 NS.)
S€C. 0.1013 CIHUSTiTvnONALITY
If u) &n, subrrcdos mtma, cia-, gp or pm~ of ChL &isba k fat MY rewn hdd to L innlid OT unconstitutiod by tbc tent juris-
diotioa. uch Won auU aot affect \he ddity of thc rem put6 of% division
Tbt Council bereby &clam that it would tun adopted tbi, division md rrch rcrion, iub- en, mtence, clam. phruc or part tbmof intcpectivc of tbc fact that my one or more em, Nbu~onr. daurer, p"". or putl k decked invalid or wuonrtltuti0o.l.
&&on of my toult of co
(Aad 12674 by Ord. 1 457 NS.)
/
41-(61
,I 0
- 'Carll6bad Journal I b~ c
Decreed A Legal Newspaper by the Superior Court of San Diego County
Mail all correspondence regarding public notice advertising to
North Coast Publishers, Inc. corporate offices: P.O. Box 878, Encinitas, CA 92024
(6 19) 753-6543
Proof of P u bl i cat ion
STATE OF CALIFORNIA, ss.
COUNTY OF SAN DIEGO,
I am a citizen of the United States and a resident of the county aforesaid;
I am over the age of eighteen years, and not a party to or interested in the above entitled
I am principal clerk of the printer of the Carlsbad Journal a newspaper of general circ
published twice weekly in the City of Carlsbad, County of San Diego, State of California, ar
newspaper is published for the dissemination of locat news and intelligence of a general charas
which newspaper at all times herein mentioned had and still has a bona fide subscription list o
subscribers, and which newspaper has been established, printed and published at regular int
the said City of Carlsbad, County of San Diego, State of California, for a period exceeding one \
preceding the date of publication of tk
hereinafter referred to; and that the r
which the annexed is a printed copy, k
published in each regular and entire isx
newspaper and not in any supplement tl
the following dates, To-wit:
NOTICE OF PUBLIC
HEARING
NOTICEIS HEREBY GIVEN that thecity Councilofthecity ofcaris- bad will hold a public hearing at the Council Chambers, 1200 Elm December 8 ................................. Avenue, Carlsbad, California. at 6:OO P.M. on Tuesday, December 19, 1989, to consider an Amendment to Title 11 of the Carlsbad Municipal
Code adding Chapter 11.36 estab- lishing locations and standards for newsracks on public rights-of-way on property located Citywide. Those Persons wishing to speak on this proposal are cordially in- vited to attend the public hearing. If YOU have any questions, please call the Planning Department at 438-1161, extension 4475. If YOU challenge the Amendment to Title 11 in court, you may be li- mited to raising only those issues
YOU Or someone else raised at the public hearing described in this notice or in written correspond- ence delivered to the City OfCarls- bad at or prior to the public hearing.
Applicant: City of Carlsbad CITY OF CARLSBAD
.................................
.................................
.................................
.................................
CITY COUNCIL
CT 5997: December 8, 1989 I certify under penalty of perjury that the foregoin;
correct. Executed at Carlsbad, County of San Die
California on -
day of -LxmdxQ%U
Clerk oi
g#P>
#202-2M-I2i87
- 1 : 'NOTICE OF PUBLIC HEARING w
4' * "r
I..
NOTICE IS HEREBY GIVEN that the City Council of the City of Carlsbad will hold
public hearing at the Council Chambers, 1200 Elm Avenue, Carlsbad, California, at 6:
p.m. on Tuesday, December 19, 1989 , to consider an Amendment to Title 11
the Carlsbad Municipal Code adding Chapter 11.36 establishing locations and standards f
newsracks on public rights-of-way on property located Citywide.
Those persons wishing to speak on this proposal are cordially invited to attend the pub
hearing. If you have any questions, please call the Planning Department at 438-11t
extension 4475.
If you challenge the Amendment to Title 11 in court, you may be limited to raising 01
those issues you or someone else raised at the public hearing described in this notice
in written correspondence delivered to the City of Carlsbad at or prior to the put
hearing.
APPLICANT: City of Carlsbad
PUBLISH : December 8, 1989
CITY OF CARLSBAD CITY COUNCIL