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HomeMy WebLinkAbout3040 Public Rights of Way Amending 13.02 ORDINANCE NO. 30Lt D AN ORDINANCE RELATING TO PUBLIC RIGHTS OF WAY, AND AMENDING AMC 13.02 Annotated to show aeletieAs and additions to 1he code sections being modified. Deletions are bold .... . and additions are bold underlined. WHEREAS, Article 2. Section I of the Ashland City Charter provides: Powers of the Citv The City shall have all powers which the consti1u1ions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent wi1h the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession; WHEREAS, the above referenced grant of power has been interpre1ed as affording all legislative powers home rule constitutional provisions reserved 10 Oregon Cities. Citv of Beaverton v. International Ass'n of Firefighters. Local 1660, Beaverton Shop. 20 Or. App. 293, . 53] P 2d 730, 734 (1975); WHEREAS, the City wishes to codify its procedure for granting encroachment permits and other permits for public works. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION I. Section 13.02.010 [Definitions] is hereby amended to read as follows: 13.02.010 Definitions. For the purpose of this chapter, 1he following mean: A. Encroach: the act of a private individual extending from their abutting private property into a public right of wav. public easement or public proDerty, B. Encroachment: area in a Dublic right ofwav. Dublic easement or Dublic DroDertv that is being encroached UDon bv a private individual. C. Encroachment Permit: a revocable Dermit granted bv the Public Works Director to allow Dermittee to encroach UDon a Dublic right ofwav. Dublic easement or Dublic DroDerty where comDliance with this chapter can be demonstrated. D,---Ao Person: Individual, corporation, associaIion, firm, partnership, joint stock. company, and similar entities. E. Public Easement: an easement granted to the City for a Dublic DurDose. including. but not limited to the DurDose of installing or maintaining Dublic or Ordinance No. Page] of7 private utility infrastructure for the provision of water. power. heat or telecommunications to the public. F. Public Property: real property owned by the City and open to the public for public use. G,B, Public rights-of-way: Include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements, and all other public ways or areas, including subsurface and air space over these areas. H. Public Works Director: the City Public Works Director or his/her authorized desil!.nee. !,&. Within the city: Temtory over which the city now has or acquires jurisdiction for the exercise of its powers SECTION 2. Sections 13.02.050 [Encroachments Permits within Public Rights of Way, Public Easements And Public Property] through] 3.02.100 [Enforcement] are hereby added to read as follows: 13.02.050 Encroachment Permits. A, Permits Required for Encroachment; Exemptions. 1: Permits Required. It shall be unlawful for anv person to do any ofthe followinl!. without first obtaininl!. a encroachment permit from the Public Works Director: !: Erect or cause to be erected any structure. retaininl!. wall. or fence in a public ril!.ht of way. public easement. or public property. or b. Place or maintain any landscapinl!. materials or any type of fill in. over or upon any dedicated public ril!.ht of way. public easement or public property, 2. Specific Exemptions, Certain encroachments are exempt from the permit requirement of AMC 13.02.020. Exempt encroachments are those which would have a minor impact on the Dresent or planned use of the public ril!.ht of way. public easement or public property and those which are expressly exempted herein. The followinl!. encroachments are exempt encroachments as Ion!! as they do not create a vision clearance hazard as defined in AMC 18.68.020: a. Mailboxes and their enclosin!! structures. b. Temporary si!!ns and banners permitted by the Si!!n Code (AMC 18.96). f: Guard/handrails alonl!. edl!.es of driveway approaches. walks. stairs. etc, that encroach in public ril!.ht of way. and d. Lawns. plants and approved street trees encroachin!! in public ri!!ht of way that do not obstruct yisibility for pedestrians. bicyclists and motorists. 3, Additional Exemptions. The Public Works Director may !!rant additional exemptions as Ion!! as the encroachment does not create a vision clearance hazard as defined in AMC 18,68.020, B. Application and Fee Required. Ordinance No. Page 2 of7 1. Anv person desirinl!: to locate or maintain an encroachment shall submit an application to the Director of Public Works, The application shall include a description of the proposed encroachment and a scale drawinl!: iIIustratinl!: the nature and extent of the proposed encroachment and its relationship to adioininl!: properties. If the applicant is not the owner of the property that will be benefitted bv the encroachment. the owner of the benefitted property shall also sil!:n the application as a co-applicant. The Public Works Director may require an actual survey to determine the exact location of any public or private improvements that will be encroachinl!: in the ril!:ht ofwav. 2. A fee in the amount established bv resolution of the City Council shall be paid at the time of the application. Co Review of Application. The Public Works Director shall conduct a review of the application for an encroachment permit to determine its compliance with the standards in AMC 13.02.060. and the Public Works Director shall request comments from affected City departments. utility companies and al!:encies rel!:ardinl!: the impact of the proposed encroachment. 13,02,060 Standards and Conditions. The Public Works Director may approve the issuance of an encroachment permit for an encroachment where compliance with the followinl!: standards can be demonstrated or specific findinl!:s are made that the standard is not applicable, The Public Works Director may attach any conditions to the issuance of the permit that are required in any applicable planninl!: approvals or reasonablv related to ensurinl!: compliance with this section. or other applicable City codes. A. Standards for Approval. 1: Horizontal clearances of at least five (5) feet shall be maintained on all sides of all utilities includinl!: electrical power. communications. sewer. storm drain. and water. This distance shall be measured between proposed encroachments and existinl!: or proposed utility lines. manholes. appurtenances. and fixtures. includinl!: but not limited to fire hydrants. above l!:round transformers. cabinets. and other structures. Clearances around water meters shall be at least one (]) foot behind and two (2) feet from the sides when measured from the outside edl!:es of the box. A larl!:er horizontal clearance may be required if utilities mandate larl!:er clearances for specific structures: for example. additional clearance may be required in front of electrical cabinets and transformers, Requests bv utility providers for larl!:er horizontal clearances or additional conditions shall be considered for inclusion into the permit, The applicant shall pay for relocation of the existinl!: utilitv lines. manholes. appurtenances. and fIXtures if this standard cannot be met, Ordinance No. Page 3 of7 2. Vertical clearances between utilities and natural landscape materials or structures placed below or above those facilities shall be the distance required bv the affected utilities. Conditions requested bv the utility providers shall be considered for inclusion into the permit. 3. Proposed encroachments. improvements and temporary measures shall not cover. prevent access to. or block the flow of water into inlets. basins. ditches. or draina!!.e ways. Gradin!!. chan!!.es shall not otherwise alter the draina!!.e patterns in the ri!!.ht of way without written approval of a !!.radin!!. and erosions control plan bv the Public Works Director, 4. Sufficient space for off-street parkin!!.. load in!!.. and pedestrian travel shall be maintained. The encroachment shall not result in a loss of area needed for parkin!!.. vehicular maneuverin!!.. or pedestrian travel. 5. It is determined that the requested encroachment is consistent with the current use of the public ri!!.ht ofwav. easement or public property. 8, Conditions. L When the Public Works Director determines that allowin!!. the requested encroachment may subiect the City to potential liability. a condition of permit issuance shall be the filin!!. with the City Risk Man!!.er of a policv of insurance and form of policv bv an insurance company licensed to do business in the State of Ore!!.on. The policv shall protect the City. its officers. a!!.ents. and emplovees. and the abuttin!!. property owners. lessees and tenants from any and all claims for injury or dama!!.e to persons or property that mi!!.ht result from the placin!!. and/or maintenance of the permitted encroachment. The amount of the insurance policv shall be at least the limits of public body liability under the Ore!!.on Tort Claims Act. The policv shall also contain a provision that the City Risk Mana!!.er shall be notified at least 30 days prior to any cancellation of such insurance. The permittee shall maintain the insurance for the term of the permit issued. Failure to maintain the insurance shall result in automatic revocation of the permit, 2. All work within the public ri!!.ht ofwav. public easement. or public property shall be consistent with en!!.ineerin!!. plans. profiles. specifications. and standards approved bv the Public Works Director in accordance with City requirements. 3. The Public Works Director may place a limit on the time the proposed encroachment may be located in or on the ri!!.ht of way. public easement or public property,. 4. To ensure that encroachments do not contribute to visual bli!!.ht or create a safety hazard. conditions of permit approval may include a requirement that the encroachment be appropriatelv maintained. Ordinance No. Page 4 of7 5. The City mav impose a chafl!.e for the use of the public ril!.ht of wav. public easement or public property, 13,02,070 Permit Issuance. A. The Public Works Director mav approve, modifv and approve. or denv the application for an encroachment permit, B. Ministerial decisions do not require interpretation or the exercise of policv or lel!.al iudl!.ment in evaluatinl!. approval standards. Ministerial decisions include, but are not limited to. site plan approval of buildinl!. or other specialty permits and final subdivision and planned unit development plans where there are no material deviations from the approved preliminarv plans, Because no discretion is involved. ministerial decisions do not Qualifv as land use or limited land use decisions, The process requires no notice to anv party other than the applicant. The Public Works Director's decision is final and not appealable bv anv party throul!.h the normal land use process, Ministerial decisions mav be appealed as provided in AMC 13.02.040. 13.02,080 Appeals, The Uniform Administrative Appeals Process outlined in AMC 2.30 shall applv to all protests of encroachment permits. Failure to strictlv complv with the applicable appeal requirements, includinl!. but not limited to the required elements for the written notice of appeal, time for minI!. of the notice of appeal. and pavment of the applicable appeal fee, shall constitute iurisdictional defects resuItinl!. in the summary dismissal of the appeal. The Hearinl!. Officer's decision is final and not appealable bv anv party throul!.h anv land use process. The Hearinl!. Officer's decision mav onlv be appealed throul!.h a writ of review proceedinl!. in Jackson County Circuit Court. 13.02.090 Revocation of Permits. All ril!.ht ofwav, easement or public property encroachment permits shall be revocable bv the City at anv time such revocation would be in the public interest, No I!.rant of anv permit, expenditure of monev in reliance thereon, or lapse of time shall I!.ive the permittee anv ril!.ht to the continued existence of an encroachment or to anv damal!.es or claims al!.ainst the City arisinl!. from a revocation. Anv permit issued under this section shall be automaticallv revoked if the permittee fails complv with anv conditions of the permit, or fails to bel!.in installation of the allowed encroachment within ninety (90) davs after issuance of the permit unless an extension is requested prior to the expiration of the ninety (90) dav period. 13.02.100 Removal of Encroachment. Upon revocation. the permittee or anv successor permittee shall. at the permittee's own expense, remove the permitted encroachment within thirty (30) davs after written notice has been provided bv the City unless a shorter period is specified in the notice of Ordinance No. Page 5 of7 revocation. If the permittee does not remove the encroachment and return the ril!ht of way. public easement or public property area to a condition satisfactory to the Public Works Director. tbe City shall do so and the permittee shall be personallv liable to the City for any and all costs of returninl! the ril!ht of way. public utility easement or public property to a satisfactory condition. includinl! the removal of structures and reconstruction of streets and/or pathways. If the permittee fails to pay the City for the costs incurred after the City bills permittee. the costs shall be imposed as a lien upon the property. Payment of such costs shall not prevent the City from pursuinl! any other remedy available at law or pursuinl! any other penalty. 13,02,110 Liability. The permittee. and owner of the benefitted property if different than the permittee. shall be liable to any person who is iniured or otherwise suffers damal!e bv reason of any encroachment allowed in accordance with the provisions of this section. Furthermore. the permittee shall be liable to the City of Ashland. its officers. al!ents and emplovees. for any iudl!ment or expense incurred or paid bv the City. its officers. al!ents and emplovees. bv reason of the existence of an approved encroachment. 13,02,120 Enforcement. A, Installation or maintenance of an encroachment in violation of AMC 13.02.010. or failure to obtain an encroachment permit as required bv AMC 13.02,010. or to complv with the terms and conditions of an encroachment permit issued thereunder is hereby declared a civil infraction subiect to enforcement pursuant to AMC Chapter 1.08, B. Installation or maintenance of an encroachment in violation of AMC 13,02. or an encroachment permit issued pursuant to AMC 13.02,020 is hereby declared to be a public nuisance as defined bv AMC Chapter 9.08. which may be abated pursuant to AMC Chapter 1.08. SECTION 3. Section 13.02.050 [Obligations of City] is hereby amended 10 read as follows: 13,02.050 13.02,130 Obligations of City The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way for public access and does not obligate the city to open or improve any part of the right-of-way. Upon improvement of any public right-of-way to city street slandards, the city shall accept by resolution the improvement and maintain and repair such improvement to the standard to which it has been improved. For purposes of nuisance-type ordinances imposing obligations upon property owners, (e.g. snow removal, weeds and noxious vegetation, sidewalk maintenance) the city shall be responsible for compliance with such ordinances in public rights-of-way adjacent to or abulling city-owned or controlled real property. Ordinance No. Page 6 of7 SECTION 4. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 5. Codification. Provisions of this Ordinance shall be incorporated in the City Code and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another word, and the sections of this Ordinance may be renumbered, or re-Iettered, provided however that any Whereas clauses and boilerpla1e provisions (i.e. Sections 4-5) need not be codified and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was firs1 read by title only in accordance with Article X, Section 2(C) of the City Charter on 1he ..J- day of //(J'/); ,2010, ,"~d;PT~ 1161' ,2010. Barbara M. Christensen, City Recorder SIGNED and APPROVED this /? day of I!Ol/(JlkriOIO. Reviewed as to form: Ordinance No. Page 7 of7