Every once in a while, something unexpected will turn out to be an issue of contention and sometimes something surprising gets separated out for discussion and an individual vote at the Common Council meeting. Such a thing happened at the 03/20/2024 Common Council meeting regarding the application from Rye Restaurant on College Avenue for an annual street occupancy permit to allow them to maintain a window box that overhung the sidewalk right of way by 4 inches.
The application in question took two minutes to be recommended for approval by the Municipal Services Committee, and a couple of the committee members made anodyne comments on the way the flower box contributed to the ambiance and aesthetic appeal of downtown Appleton.
When the item appeared before the Common Council meeting, it generated public comment from two representatives of Angels Forever – Windows of Light, the business directly adjacent to Rye Restaurant. Danielle and Nathan expressed concerns that the window box was not ADA compliant and was a hazard to people who were blind and visually impaired.
Nick and Mackenzie of Rye restaurant outlined to the Council that when they became aware that the planter overhung the right-of-way by 3-5 inches, they immediately took steps to apply for the appropriate permit to bring the planter box into compliance. When they were made aware of the ADA concerns, they reached out right away to the craftsman who had originally made the box to find a way to make it ADA compliant.
The Council ended up voting 13-2 to approve the application for a street occupancy permit after having amended the item to clarify that issuance of the permit was contingent on modifying the flower box to make it ADA compliant. Alderpersons Vered Meltzer (District 2) and Nate Wolff (District 12) cast the two dissenting votes.
I’ve prepared transcripts of both the Municipal Services Committee and the Common Council discussions:
The main concern regarding the flower box was that it was 45” above the sidewalk and jutted out 3-5” into the right of way and, by Danielle’s measurements, jutted between 12” and 22” from the wall of the building itself. Per Danielle, this did not fit into the Pedestrian Right Of Way Accessibility Guidelines pertaining to blind and vision impaired people. In order for a protrusion from a wall to be readily ascertainable by a blind or vision impaired person walking with the assistance of a white cane, the bottom of a protrusion needed to start no higher than 27” off the ground. The protrusion also needed to be straight up and down and not jut out more as it got higher in order to help blind people not bump against it.
Danielle noted that Angels Forever – Windows of Light had had multiple blind and visually impaired people in their store over the last month who would not have been able to be aware of the box if they had not been accompanied by people who could see. Additionally during the Café Walk earlier this month, “we had a teenage girl who brushed her face and irritated her eye with the amount of branches that are overhanging.”
Nathan told the Council, “[R]emember the ADA wasn’t written for the many. It was written for the few. You’ve done a great job here, all of you, creating a very diverse, welcoming community for all. Let’s not diminish that.”
Nick and Mackenzie from Rye outlined the steps they had taken to bring the box into compliance since being made aware of the issue both by getting the permit to occupy the right of way and also by taking steps to make the box ADA compliant eventhough policies regarding ADA compliance in this matter were not in place or enforceable. They also noted that the box had been in place for 8 years during which they had received no reports of injuries or incidents pertaining to the boxes.
Alderperson William Siebers (District 1) initially asked to have the item referred back to committee for further discussion, but Alderperson Katie Van Zeeland (District 5) objected to the refer back saying she planned to motion to amend the item to approve it with the caveat that the box be made ADA compliant before the permit was issued.
Alderperson Meltzer would have preferred to discuss it at committee further and was uncomfortable that these issues had not been raised during the Municipal Services Committee meeting. Director of Public Works Danielle Block indicated to the Council that the ADA concerns had only be raised after the committee meeting.
Regardless of the timing issues related to raising the ADA concerns, Alderperson Meltzer said, “I’m very grateful for [Danielle and Nathan] for taking the time and the effort to educate us about this issue. And I think that, you know, going forward, there’s certainly ways that I can be better with my own research. Thank you.”
The Council ended up voting against referring the item back to committee and instead took it up at the Council meeting instead. Alderperson Van Zeeland made a motion to amend the item “to place a contingency on the approval of the Street Occupancy Permit for modifications to the Special Use Permit to make the planter boxes ADA compliant.”
The amendment was approved by a vote of 15-0 and then the amended item was approved by a vote of 13-2 with Alderpersons Meltzer and Wolff voting against it.
[I feel like this is local government in one of its more delightful, somewhat “Waiting For Guffman”-esque moments. While there was some legitimacy to the concerns, something around 15 minutes was spent at a Common Council meeting receiving public comment on and discussing a flower box that protruded 5 inches into the sidewalk. There is some element of absurdity to that, but thankfully it seemed to be resolved in a reasonable manner that could leave everyone feeling generally satisfied. Rye gets to keep their flower box, College Avenue gets to continue enjoying the aesthetic appeal of said flower box, and it will be made ADA compliant so that blind and visually impaired individuals relying on white canes will be able to recognize its presence. It would seem the US Venture development incentive agreement was not the only win/win/win item of the evening.]
View full meeting Municipal Services Committee meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1182899&GUID=F6D2D877-36A4-4322-8325-50A772CAEA4E
View full Common Council meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1171630&GUID=0FD6CC44-548D-406A-8681-BBD549FF0A19
The 2010 ADA guidelines (which are enforceable) for protrusions are the exact same as PROWAG. So McKenzie was mistaken when she said the guidelines were not in place or enforceable. I chose to refer to the PROWAG guidelines as they use language that more clearly refers to the public right of way. However, ADA guidelines are enforceable to both public and commerical facilities and have been for decades.
The “visual aesthetics” of this planter’s Christmas decorations (less than a week away from Easter now) have been a nuisance with the debris they cause to us as neighbors for years. We tried to privately resolve the issue and asked RYE to better maintain the box which they outwardly refused. That, along with their noncompliance to city ordinances & ADA requirements, is why the seemingly benign issue had to be brought to city council.
Appreciate your coverage.
Looks like Christmas decorations are still up when Easter is this Sunday…not too “aesthetically appealing” nor in my opinion does it add any “ambiance” to downtown Appleton as it slowly falling apart.