Loading...
HomeMy WebLinkAbout1107 Governing Encroachments in the Public Right of WayORDINANCE NO. 1107 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF UKIAH AMENDING CHAPTER 7, DIVISION 6 OF THE UKIAH CITY CODE, GOVERNING ENCROACHMENTS IN THE PUBLIC RIGHT OF WAY, BY DIVIDING SAID CHAPTER INTO ARTICLE 1, GOVERNING THE REMOVAL OF UNAUTHORIZED ENCROACHMENTS FROM THE PUBLIC RIGHT OF WAY AND ARTICLE 2, GOVERNING ENCROACHMENT PERMITS. The City Council of the City of Ukiah hereby ordains as follows: SECTION ONE Chapter 7 of Division 6 of the Ukiah City Code is amended to read as follows: DIVISION 6: SAFETY CHAPTER 7: ENCROACHMENTS IN THE PUBLIC RIGHT OF WAY ARTICLE 1 REMOVAL OF ENCROACHMENTS 5600: DEFINITIONS: As used in this Chapter 7, the following terms shall have the following meanings A. "Public right of way" includes all or any part of the entire width of a right of way granted to the City, whether in fee or as an easement, for sidewalk, highway, roadway, drainage, utility or other public purposes, whether or not such entire area is actually used for such purposes. B. "Encroachment" includes any structure or object of any kind or character placed, without the authority of law, either in, under or over any public right of way, including vehicles or equipment designed to operate from a fixed or stationary position. 5601: REMOVAL OF ENCROACHMENTS; NOTICE TO REMOVE; SERVICE OF NOTICE: If any encroachment exists in, under or over any public right of way, and is not encroaching in accordance issued pursuant to Article 2 of this Chapter, the City may require the removal of such encroachment in the manner provided in this Chapter. Notice shall be given to the owner, occupant or person in possession of the encroachment, or to any other person causing or suffering the encroachment to exist, by serving upon any such person a notice containing a demand for the immediate removal of such encroachment from within such public right of way. Any such notice shall describe the encroachment complained of with reasonable certainty as to its character and location. The notice shall state that the encroachment must be permanently removed from the public right of way within five (5) days from the date of the notice. If not removed within said five (5) days, City personnel will remove the encroachment. The costs of its removal and its storage or other disposition shall be imposed on the recipient of the notice. If the recipient disputes the City's right to remove the encroachment, he or she must, within the same five (5) day period, file a written protest with the City Manager. The City Manager's decision shall be rendered within two (2) days of its receipt and shall be final for the City. The party opposing the removal shall have the right to present written or oral testimony or argument in support of his or her protest and the City Manager shall base his or her decision on the evidence and argument presented prior to his or her decision. In lieu of personal service upon such person, service of such notice may also be made by registered mail and by posting, for a period of five (5) days, a copy of the notice on the encroachment described in the notice. In the case of an owner, occupant or person in possession, who is not present in the City, the notice may be given to his agent in lieu of service by mailing and posting. In the case of a business, notice may be delivered to a person apparently in charge of the business premises during normal business hours. 5602: SUMMARY REMOVAL BY CITY: The City may immediately remove from any public right of way any encroachment which: A. Is not removed, or the removal of which is not commenced and thereafter diligently prosecuted, prior to the expiration of five (5) days from and after the date of the notice required by §5601; or B. Obstructs or prevents the use of such right of way by the public and presents a hazard that cannot be allowed to continue for a period of five (5) days; or C. Consists of refuse, or D. The ownership of which can not be readily determined Upon such removal, the City, at its option, may 1) return the encroachment to its owner, 2) store it at the owner's expense, in which case the City shall have a lien on the encroachment equal to its reasonable storage costs, or 3) dispose of it in any other manner it deems appropriate. 5603: REMOVAL BY CITY ON FAILURE TO COMPLY WITH NOTICE; ACTION FOR RECOVERY OF REMOVAL EXPENSE: The City may remove any encroachment on the failure of the owner to comply with a notice or demand of the City under the provisions of §5601 of this Code and shall have an action to recover the expense of such removal, costs and expenses of suit, including reasonable attorneys' fees and, in addition thereto, the sum of one hundred dollars ($100.00) for each day such encroachment remains after the expiration of five (5) days from the date of the notice. 5504: ABATEMENT ACTION; RECOVERY OF PENALTY, COSTS, AND EXPENSES: If the owner, occupant, or person in possession of the encroachment, or person causing or suffering the encroachment to exist, or the agent of any of them, disputes or denies the existence of the encroachment, or refuses to remove or permit the removal of the encroachment, the City may commence, in any court of competent jurisdiction, an action to abate the encroachment as a public nuisance. If judgment is recovered by the City, said judgment shall include, in addition to adjudging the encroachment a nuisance and abating it, statutory damages of one hundred dollars ($100.00) for each day such encroachment remains after the service of the notice in the manner provided in §5601, and shall also include the City's costs and expenses incurred in such action, including reasonable attorneys' fees. ARTICLE 2. ENCROACHMENT PERMITS 5610: ENCROACHMENT PERMIT AUTHORIZED: The City Engineer, acting as the Superintendent of Streets, is hereby authorized to issue encroachment permits to authorize temporary encroachments within the Public Right of Way, subject to the provisions of this Article 2. 5611: PERMIT APPLICATIONS: Any person, business or entity which proposes to encroach on the public right of way may apply for an encroachment permit, provided that the applicant has sufficient capacity and control over the encroachment to comply with any permit conditions imposed by the City Engineer pursuant to Section 5612. The City Engineer is authorized to determine whether an applicant demonstrates such capacity and control. The applicant shall use an application form adopted by the City Engineer, which may require the applicant to sign an agreement to comply with any conditions imposed pursuant to Section 5612. The City Engineer may adopt such written procedures as he or she deems appropriate governing the application for and the issuance of encroachment permits, provided that those procedures do not conflict with this Article 2. The City Engineer may charge a fee to accept and process an application for an encroachment permit. The amount of the fee shall be fixed by a resolution adopted by the City Council. The City Council may revise the fee from time to time to account for inflation and to assure that the fee equals, but does not exceed, the City's actual costs associated with processing the application and regulating the activity authorized by the permit. 5612: PERMIT CONDITIONS: The City Engineer may impose such conditions as he or she deems appropriate and which are reasonable to protect the health, safety and property of the City and the general public. At a minimum, the permit shall require the permittee to indemnify and defend the City against any damage to persons or property, including public property, arising out of the activity authorized by the permit and to furnish such certificates of insurance and policy endorsements as are determined by the City Engineer to evidence adequate insurance coverage to protect the City and the general public from the risks reasonably associated with the activity authorized by the permit. 5613: APPEALS: An applicant for a permit who objects to any condition or determination of the City Engineer may appeal that decision to an appeals board consisting of the City Manager and two members of the City Council appointed to the board by the City Council. The applicant waives his or her right to an appeal unless he or she files a written request for an appeal with the City Clerk within ten (10) days of the date he or she received written notice of the decision or determination he or she wants to appeal. To avoid a waiver of the right of appeal, the written request must adequately describe the decision or determination, the reasons why the applicant, objects to it, and the remedy sought. The board shall conduct a hearing on the appeal within ten (10) days after the City Clerk receives the appeal. The City Manager, in consultation with the other board members, may extend the hearing date for good cause. The board shall electronically record the hearing and preserve the recording for not less than 120 days. The board may adopt such rules to govern its conduct of the hearing as it deems appropriate, provided that the applicant shall have a reasonable opportunity to present evidence and argument to the board and the board announces its decision to the applicant either orally or in writing. The City Engineer shall have an opportunity to present evidence and argument during the hearing. The board shall have discretion to refer the appeal to the City Council rather than decide the appeal itself, in which event the City Council shall consider the appeal at its next regularly scheduled meeting that takes place not less than ten (10) days from the date of the referral, unless the City Council extends the meeting date for good cause. A decision by the board or the City Council shall be based exclusively on the evidence and argument submitted during the hearings and the decision shall be final for the City. SECTION TWO 1. SEVERABILITY, If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance and the application of such provision to other persons or circumstances shall not be affected thereby. The City Council hereby declares that it would have adopted this Ordinance and any section, subsection, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional or otherwise invalid. 2. EFFECTIVE DATE. This Ordinance shall be published as required by law in a newspaper of general circulation in the City of Ukiah, and shall become effective thirty (30) days after its adoption. Introduced by title only on June 18, 2008, by the following roll call vote: AYES: Councilmembers Thomas, McCowen, and Mayor Crane NOES: None ABSENT: Councilmembers Rodin, and Baldwin ABSTAIN: None Adopted on July 2, 2008, by the following roll call vote: /~YE$: Councilmembers Thomas, McCowen, Baldwin, and Mayor Crane NOES: None ABSENT: Councilmember Rodin ,R~STAIN: on~ C/ Duo\uglas .Crane, Mayor l ATTE~~ -_ ~ i Li wn, Clerk