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HomeMy WebLinkAboutOrd 15-89 EncoachmentsORDINANGE NO. 15-89 AN ORDINANGE OF THE CITY OF DUBLIN RELATING TO ENCROACHMENTS The City Council of the City of Dublin does ordain as follows: Section 1. DEFINITIONS. Unless the context otherwise requires, the definitions contained in this section shall govern the construction of this Chapter. (a) CITY ENGINEER means the Dublin City Engineer or his designee. (b) ENCROACH, ENCROACHMENT. "Encroach" or "Encroachment" includes going upon, over, under, or using any street in such a manner as to prevent, obstruct, or interfere with its normal use, including but not limited to the performance thereon of any of the following acts: (1) Excavating, filling or disturbing the street; (2) Erecting or maintaining any post, pole, fence, guard rail, wall, loading platform, or other structure on, over, or under the street; (3) Planting any tree, shrub, or other growing thing within the street; (4) Placing or leaving on the street any rubbish, brush, earth, or other material of any nature whatever; (5) Constructing, placing, or maintaining on, over, under, or within the street any pathway, sidewalk, driveway, or other surfacing, any culvert or other surface drainage, or sub-surface drainage facility, any pipe, conduit, wire, o~ cable; (6) Lighting or building a fire; (7) Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the street which causes or will cause an encroach~nent; or (8) Placing or causing to be placed any material, machinery, or apparatus on the street for building, paving, or other purposes for over twenty-four (24) hours. (c) PERMITTEE. "Permittee" means any person that proposes to do work or encroach upon a street as herein defined and has been issued a permit for said encroachment by the City Engineer. (d) PERSON. "Person" shall mean any. individual, firm, partnership, association, or corporation, including any public agency or utility, or any agent or representative thereof and includes successors in interest. (e) STREET. "Street" shall mean the full width of the right of way of any street, as defined in the California Vehicle Code, used by the general public, whether or not such street has been accepted as and declared to be part of the City system of streets, including streets forming a part of the State Highway System. "Street" also includes easements where the City is the grantee of the easement and property owned by the City of Dublin. Section 2. EXEMPTIONS. This Chapter shall not apply to any officer or employee of the City acting in the discharge of his official duties; to any work being performed by any person or persons, firm or corporation under contract with the City; when permission to encroach has been expressly granted by the City Council; to a permanent projection from buildings as permitted by Sections 22.26, and 22.29 of Ordinance 58-87; or to temporary pedestrian protection permitted by Section 22.21 of Ordinance 58- 87. Section 3. EXCEPTION IN CASE OF EMERGENCY. This Chapter shall not prevent any person from maintaining any pipe or conduit lawfully on or under the street, or from making excavation, as may be necessary, for the preservation of life or property when an urgent necessity therefor arises, provided that said person shall notify the City Engineer by telephone the day such work is performed or the day the offices of the City are again opened. Said person shall then apply on the proper form within five (5) working days confirming the work performed. Section 4. RICtIT OF LAWFUL USE. Any permit granted under this Chapter shall be subject to the right of the City or any other person entitled thereto, to use that part of the street for any purpose for which it may be lawfully used, and no part of the street shall be unduly obstructed at any time. All work or use shall be planned and executed in a manner that will least interfere with the safe and convenient travel of the general public. Section 5. PROHIBITED ENCROACtlMENTS. No application will be approved nor permit issued for constructing or maintaining a loading platform upon or in any street or for erecting or maintaining therein or thereon a post, pole, column, or structure for support for advertising signs, except as provided in Section 9. Section 6. LIABILITY FOR DAb~GES; PUBLIC LIABILITY INSURANCE. (a) Permittee shall be responsible for all liability for personal injury or property damage which may result from work permitted and done by permittee under the permit, or proximately caused by failure on permittee's part to perform his obligations under said permit in respect to maintenance. If any claim of such liability is made against the City, its officers, or employees, permittee shall defend, indemnify, and hold them and each of them, harmless from such claim including any claim based on the active or or passive negligence of the City, its officers or employees, insofar as permitted by law. (b) Permittee shall be required to show evidence of public liability insurance in such form and amount as may be required by the City Engineer to protect the City, its officials, officers, directors, employees, and agents from claims which may arise from permittee's operations under the permit. Section 7. COMPLETION OF WORK AND/OR RESTORATION OF STREET BY CITY. If the work or use authorized by a permit is unsafe, in violation of this Chapter, or is unduly delayed by the permittee, the City Engineer may, upon written notice, revoke the permit and complete the work or any portion thereof, or make the site safe or return it to the same condition existing prior thereto. The actual cost of performing such work by the City plus overhead shall be charged to and paid for by the permittee. Section 8. SIGNS ON PUBLIC PROPERTY. (a) No person, except a duly authorized public officer or employee, shall paint, mark, or write on, or post or otherwise affix, any handbill or sign to or upon any public property including, but not limited to any sidewalk, crosswalk, curb, curbstone, street, hydrant, tree, shrub, tree stake or guard, railroad trestle, electric light pole, telephone pole, or power pole, traffic signal pole, public bridge, drinking fountain, street sign, or traffic sign. (b) Any handbil~ or sign found posted or otherwise affixed upon any public property contrary to the provisions of this section may be removed by the City. The person responsible for any such illegal posting shall be liable for the cost incurred in the removal thereof and the City Manager or his designee is authorized to effect the collection of said cost. (c) Nothing in this section shall apply to the installation of a metal plaque or plate in a sidewalk commemorating an historical, cultural, or artistic event, location or person for which the City Manager or his designee has granted approval. (d) Nothing in this section shall apply to the painting of house numbers upon curbs done in accordance with the provisions of Section 43. (e) Nothing in this section shall apply to the temporary markings placed by the owners of. subsurface installations pursuant to Government Code Section 4216. Section 9. PUBLIC SERVICE BANNERS. Notwithstanding the provisions of Section 8 hereof, public service banners may be placed within any public street, alley, or other public property upon issuance of an encroachment permit by the City Engineer. In issuing such an encroachment permit, the City Engineer shall consider the safety of vehicular and pedestrian traffic, the prevention of damage to public property, the aesthetic Conditions of a particular neighborhood and the public health, safety, and welfare. As used herein, "public service banner" shall mean temporary banners of non- profit public welfare organizations and public service groups which advertise events of community interest. The City Manager may, in his discretion, adopt a policy regulating the installation, maintenance, and removal of public service banners. ARTICLE 2. PERMIT REQUIREMENTS Section 10. PERMIT REQU!RED.~. No person shall encroach or cause to be made any encroachment of any nature whatever within, upon, over, or under the limits of any street in the City, or make or cause to be made any alteration of any nature within, upon, over, or under such street; or construct, put upon, maintain or leave thereon, or cause to be constructed, put upon, maintained, or left thereon, any obstruction or impediment of any nature whatever; or remove,-cut or trim trees thereon; or set a fire thereon; or place on, over or under such street any pipe line, conduit, or other fixture; or place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment in such a way as to endanger the normal usage of the street without having first obtained a permit as required in this Chapter. Section 11. APPLICATION FOR PERbIIT. The City Engineer shall provide an application form which shall contain such information as in the judgment of the City Engineer is necessary, including information to establish the exact location, nature, dimensions, duration, and purpose of the proposed use or encroachment. The application shall be filed with the City Engineer. Section 12. PER}lIT APPLICATION EXHIBITS. The application shall be accompanied by maps, plats, sketches, diagrams, or similar exhibits to the size and in the quantity as the City Engineer shall prescribe on which shall be plainly shown any and all information necessary to locate, delineate, illustrate, or identify the proposed use or encroachment and the right of the applicant to so use or encroach thereon. Section 13. CONSENT OF PUBLIC AGENCIES. The applicant shall be accompanied by the written order or consent to any work thereunder which may be required by law or any other public agency or body. Section 14. ACTION ON APPLICATION. Applications may be approved, conditionally approved, or denied. The City Engineer shall act on the application within thirty (30) working days. Where the City Engineer finds that the requirements of this Chapter have been met and the required fees and charges have been paid, he shall issue a permit for the use or encroachment, attaching such conditions as he may deem necessary for the health, safety, and welfare of the public and for the protection of the City. If the City Engineer finds the requirements of this Chapter have not been met, he shall deny the permit, giving the reasons therefor in writing. The City Engineer may deny a permit where trenching or cutting a street is required where the street overlay is less than three (3) years old. Section 15. FEES AND CIIARGES. Fees for issuance of the permit and charges shall be established by the City Council from time to time by resolution upon recommendation of the City Engineer. A public agency which is authorized by law to establish or maintain any works or facilities in, under, or over any public street shall not be subject to a fee for issuance of a permit but shall be required to pay all other charges, A public agency or utility may at the option of the City Engineer arrange to be billed for the required fees and charges. Section 16. CASH OR BOND DEPOSIT. Prior to issuance of a permit, unless waived by the City Engineer, the permittee shall deposit with the City cash, a certified or cashier's check, or an approved surety bond in a sum to be fixed by the City Engineer as sufficient to reimburse the City for costs of restoring the street to its former condition. If the permittee anticipates applying for a number of permits throughout the year, he may file a cash deposit or approved surety bond in a sum estimated by the City Engineer as sufficient to cover the permittee's activities during any twelve (12) month period. Section 17. ADDITIONAL BOND OR CASH DEPOSIT. The City Engineer may require an additional bond or cash deposit at any time when in his opinion the amount of the bond or cash deposit previously made is insufficient. Section 18. CONDITION OF BOND AND CASH DEPOSIT. The condition of any bond or cash deposit ~nade pursuant to this Article shall be that the permittee will diligently and with good faith comply with this Chapter and the terms and conditions of the permit. Section 19. BOND PAYABLE TO CITY; TEP~[ OF BOND. Any bond or cash deposit required by the City Engineer pursuant to this Chapter shall be payable to the City of Dublin. Upon satisfactory completion of all work authorized in the permit, and fulfillment of all conditions of the permit, including the guaranty period set forth in Section 33, the bond or cash deposit will be released, provided that the City Engineer may, in his discretion, allow the earlier release of the bond or cash deposit. Section 20. ExcLusIONS. Cash deposits or bonds will not be required of any public utility holding a franchise with the City or public agency which is authorized by law to establish or maintain any works or facilities in, under, or over any street. Section 21. TERM OF PERMIT. The permittee shall complete the work or use authorized by a permit issued pursuant'to this Chapter within ninety (90) days from date of issuance, unless a different period is stated in the permit. If the work or use is not completed with ninety (90) days, or within the time stated in the permit, then the permit shall become void, and the City Engineer may restore the street in accordance with Section 7. An extension of time for good cause may be granted by the City Engineer when requested in writing. Section 22. DISPLAY OF PERMIT. The permittee shall keep any permit at the work site, and the permit must be shown to any authorized representative of the City engineer or law enforcement officer on demand. Section 23. CHANGES IN PERMIT. No changes may be made in the location, dimension, character, or duration of the encroachment or use as granted by the permit except upon written authorization of the City Engineer. Section 24. NON-TRANSFERABLE. No permit issued pursuant to this ordinance shall be transferable or assignable to any other person. Section 25. ISSUANCE OF OTHER PERMITS NOT COMPLIANCE WITH THIS CHAPTER. Issuance of a building permit, electrical permit, plumbing permit, demolition permit, or any other permit which may be required by law at the same location and in connection with the same activity for which a permit would be issued hereunder shall not constitute authorization to encroach on any street. ARTICLE 3. PERFORMANCE OF WORK Section 26. STANDARDS AND SPECIFICATIONS. The City Engineer shall from time to time establish such standards and specifications as he deems necessary for the proper construction, use, and maintenance of encroachments and for the safety, protection and convenience of the public, which standards and specifications shall be applicable to all permittees. Any work or use done under all permits shall conform to the City's standard plans and specifications, unless otherwise required by the City Engineer. If inadequate provision is made for the safety, protection and convenience of the public by the permittee, the City Engineer may take such action as he deems necessary for the protection of the public and shall charge the permittee therefor. Section 27. COMPLIANCE WITH APPLICABLE SAFETY LAWS. The permittee shall comply with all applicable federal, state, and local laws and regulations, including Department of Industrial Relations of the State of California (CAL~OSHA) rules and regulations. Section 28. INSPECTIONS. The permittee shall allow the City Engineer to inspect any or all work done pursuant to the permit at reasonable times. Sec.tion 29. NOTIFICATION: COb~ENCEMENT OF WORK. The permit'tee shall notify the City Engineer at least twenty-four (24) hours in advance of beginning work. If appropriate, the permittee shail give such advance notice as may be required by the City Engineer to the Police Department and/or Fire Department of the location and nature of the proposed work. Section 30. RESTORATION OF STREET. Upon completion of the work, acts, or things for which the permit was issued, or when required by the City Engineer, the permittee shall replace, repair, or restore the street at the place of work to the same condition existing prior thereto, unless otherwise provided in the permit. The permittee shall remove all obstructions, impediments, material or rubbish caused to be or placed upon the street under the permit, and shall do any other work or perform any act necessary to restore the street to a safe and usable condition. Section 31. DRAINAGE. If the work, use or encroachment authorized in the permit shall interfere with the established drainage, the permittee shall provide for proper drainage as directed by the City Engineer. Section 32. NOTIFICATION: COMPLETION OF WORK. Upon completion of all work authorized in the permit, the permittee shall notify the City Engineer in writing. No work shall be deemed to be completed until such notification of completion is given and final inspection has been made by the City Engineer unless such final inspection is waived by the City Engineer in writing. Section 33. GUARANTY PERIOD. After completion of all work,, the permittee shall exercise reasonable care in monitoring and maintaining the area affected by the encroachment. For a period of two (2) years after final inspection of the work by the City Engineer or the date of waiver of final inspection, the permittee shall repair any injury or damage 'to any portion of the street which occurs as the result of work done under the permit, including any and all injury or damage to the street which would not have occurred had such work not been done. Any public utility, public agency, or franchisee which is authorized by law or contract to establish or maintain any works or facilities in, under, or over any street shall monitor, maintain, and/or repair the s6reet or any portion of it where the public utility, public agency, or franchisee has made any excavation for the life of any works or facilities contained in or under the street. The permittee shall repair any injury or damage in any portion of the street, resulting from the work done under the permit within the period of time required by the City Engineer. In the event that the permittee fails to act timely or should repair or replacement be required before the permittee can be notified or can respond to notification, the City may make or cause to be made the necessary repairs or replacements or perform the necessary work and the permittee shall be charged with all the expenses incurred in the performance of said work, including overhead. -7- Section 34. RELOCATION OR REMOVAL OF ENCROACHMENTS. If any future construction, reconstruction, or maintenance work by the City or required by the City on a street requires the relocation, removal, or abandonment of installations or encroachments in, on, or under a street, the permittee owning, controlling, or maintaining such installations or encroachments shall relocate, remove, or abandon the same at his sole expense unless otherwise required by law. When removal, relocation, or abandonment is required, the City Engineer shall give said per~nittee a written demand specifying the place of relocation, or that the installations or encroachment must be removed or abandoned. If said permittee fails to comply with said instructions, the City may cause the removal, relocation, or abandonment of the encroachment at the expense of the permittee. ARTICLE 4. SIDEWALKS, DRIVEWAYS, CURBS Section 35. PE~IIT REQUIRED. It is hereby declared to be unlawful for any person to repair or construct, or cause to be repaired or constructed by private contract in the City any sidewalk, driveway, curb, gutter, or paving, or to cut any curb for the purpose of constructing a driveway, or to begin excavation for the purpose of constructing a sidewalk, driveway, curb, gutter, or paving within any street without first obtaining a permit as required in Article 2 of this Chapter. Section 36. REMOVAL OF DRIVEWAY. When a driveway shall permanently cease to be used, the curb cut therefor, and all or a portion of the driveway, as determined by the City Engineer, shall be removed and standard curb, gutter, and sidewalk shall be constructed. The property owner shall remove the curb cut and driveway and construct curb, gutter, and sidewalk, or cause same to be removed or constructed, within thirty (30) days of receiving written notice from the City Engineer to do so. Should the property owner fail to perform such work or cause it to be performed within said thirty (30) days, the City Engineer shall have such work done at the expense of the property owner. The provisions of this Section shall apply to all existing driveways whether or not the use thereof was heretofore abandoned, as well as to all such driveways which are constructed after the effective date of this Section. Section 37. DENIAL OF BUILDING PERbIIT WHILE SIDEWALK INCOMPLETE. No building permit shall be issued under the terms of this Code for construction, additions, or r~modeling on any lot, tract, or parcel of land on the street frontage of which the sidewalk, curb,'or gutter is not complete, unless said building permit is accompanied by the issuance of a permit under the terms of this Chapter for the completion of said improvements on the street frontage; except that if the City Engineer determines that it is in the public interest, he may waive all or a portion of the improvements required by the provisions of this section. Section 38. REPAIR OF SIDEWA'LKS: REPORTING DEFECTS. Any person owning real property in the City shall repair any dangerous or defective sidewalk lying in front of, in back of, or along the side of his property. Any tenant of real property in the City shall report to the City Engineer in writing any dangerous or defective sidewalk which exists in front of, in back of, or along the side of property occupied by him. If, as a consequence of any sidewalk being dangerous or defective sufficient to endanger persons passing thereon, any person exercising ordinary care to avoid the danger who proximately suffers damage to his person or property because of a dangerous or defective sidewalk shall have recourse for such damages against the person failing to repair such defect. The election of the City Engineer to repair any dangerous or defective sidewalk with City forces or by contract at Such times as the City Council may direct, shall not in-any respect limit or modify the foregoing provisions. ARTICLE 5. MISCELLANEOUS Section 39. REVOCATION. Any permit issued hereunder may be revoked by the City Engineer for violation of the provisions of this Chapter or if the permitted activity poses an imminent threat to the public health, safety, or welfare. Section 40. APPEAL. An applicant or permittee may appeal the decision of the City Engineer concerning the denial or revocation of a permit to the City Manager pursuant to the provisions of Section 7 of Ordinance No. 21-86. The City Manager may deny the appeal or grant the appeal with terms and conditions necessary to protect the public health and safety. Section 41. MAINTENANCE OF RECORDS. Ail permittees and other persons maintaining permanent facilities within a street shall keep up-to- date records of the location and description of all such facilities, which records shall be furnished to the City Engineer upon request. As used herein, "facilities" shall include, but shall not be limited to, underground pipes, wires, and tanks. Section 42. MAIL BOXES. Ail mail boxes shall be placed in accordance with the rules and regulations of the United States pOst Office Department, but no box shall be so placed within the street as to endanger the life or safety of the traveling public. Section 43. MARKING OF CURBS, ETC. It shall be unlawful for any person, without first obtaining a permit under this Chapter, to solicit on a commercial or donation basis, to place or maintain any number, figure, letter, carving, drawing, design, or other marking upon any street; except that markings for the purpose of identifying survey, utility, or construction locations shall not be subject to this Chapter. A permit for placing or maintaining numbers, figures, letters, carvings, drawings, designs or other markings under this Chapter may be issued only to non-profit organizations which have their principal and permitted meeting place within City Limits and have been organized and established within the City for a minimum of one (1) year continuously preceding application for a permit. Section 44. MONUMENTS. Any monument of granite, concrete, iron, or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any street, property subdivision, or a precise survey point or reference point shall not be removed or disturbed or caused to be removed or disturbed without first obtaining permission from the City Engineer to do so. Replacement of removed or disturbed monuments will be at the expense of the permittee. Section 45. tlEDGES, FENCES, SHRUBBERY~ AND LAWNS. (a) No tree, fence, or similar structure, shall be planted, erected, or maintained in a street without a permit. No encroachment of any nature will be permitted or maintained which impedes, obstructs, or denies such pedestrian or other lawful travel, or which impairs adequate sight distance for safe pedestrian or vehicular traffic. (b) Maintenance. The permittee or property owner shall maintain all hedges, shrubs, walls, fences, or similar structures erected for landscaping purposes in a neat and orderly condition; if such structures are not so maintained, the City Engineer may direct that permittee or property owner to remove the same and restore the street to its former condition, at the expense of the permittee or property owner. (c) Lawns. Any person otherwise entitled to may maintain a lawn of any grass or type not prohibited by other law, within the street without a permit. The lawn shall not extend into the roadway or walkway nor into the drainage ditches, gutter, or other drainage facilities. Section 46. TREES. The applicant for a permit to plant trees in the right-of-way of a public highway shall show in his application the exact location of and the kind of tree to be planted. If trees are planted within the public right-of-way and within five (5) feet of a public sidewalk and/or curb, the City Engineer may require a root barrier to be installed with the tree(s). No change shall be made in either location of trees or in kinds of trees without the approval of the City Engineer. The trees shall remain the property of the permittee who shall pay the cost of planting the trees and shall bear the cost of their maintenance. The City Engineer, at his sole discretion, may require the permittee to remove the trees at his sole expense if necessary for public safety or convenience. Section 47. UNLAWFUL STORAGE. No person shall store any item of business inventory, including vehicles, upon any street or sidewalk. Section 48. ENFORCEMENT. The City Engineer is designated as the enforcement authority for purposes of enforcing the provisions of this Chapter. Section 49. NUISANCE SUMMARY ABATEMENT. Violation of the provisions of this ordinance are hereby declared to constitute a nuisance. The City Engineer may summarily abate any such nuisance in accordance with California Government Code Section 38773. The costs of such abatement shall be a personal obligation of the property owner and may be made a lien against the property in accordance with the provisions of Section 37. Section 50. LIEN PROCEDURE (a) Record of Cost. The City Engineer shall keep an account of the cost of performing the abatement, including reasonable administrative costs, on each separate lot or parcel of land, and the name of the owner thereof. Such costs shall become, when confirmed, a special'assessment against the property. (b) Council Appeal. Between the first and fifteenth day of July of each year, the City Manager shall cause to be published a notice to the effect that any owner upon whose property the City Engineer has performed any work hereunder during the preceding fiscal year may appeal therefrom to the Council. Said notice shall be published once in accordance with Government Code Section 6061. Any appeal shall state the grounds for appealing. At the next regular meeting of the City Council after the first day of August, it shall hold a hearing to confirm the costs and any appeals, and its determination thereupon shall be final. (c) Lien. After confirmation of the costs by the City Council a certified copy of the confirmed report shall be filed with the County Auditor who shall enter each assessment on the tax roll against the respective premises. Said assessment shall'be collected at the same time in the manner as ordinary municipal ad valorem taxes and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for such taxes. Ail laws applicable to the levy, collection, and enforcement of municipal ad valorem property taxes shall be applicable to such assessments. The lien created attaches upon recordation of a certified copy of the confirmed report in the office of the County Recorder and shall continue until the charges and fees are fully paid. repealed. Section 51. REPEAL. Dublin Ordinance No. 17-83 is hereby Section 52. SUPERCESSION. This Ordinance shall supersede the provisions of Alameda County Cbde Title 5, Chapter 1, as adopted by Dublin Ordinance No. 82-13. Section 53. EFFECTIVE DATE AND POSTING OF ORDINANCE. This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED by the City Council of the City of Dublin on this 30th day of October, 1989. AYES' NOES: Councilmembers Hegarty, Jeffery, Snyder, Vonheeder and Mayor 'Moffatt None ABSENT: None Mayor Czty ClerR-r- ~J