Belmont Municipal Code Art. I Encroachments

Footnotes:

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Editor's note— Ord. No. 994, § 1, adopted Dec. 9, 2003, amended art. I in its entirety to read as herein set out. Formerly, said article pertained to similar subject matter as enacted by Ord. No. 811, § 1, adopted May 9, 1989; as amended. See the Code Comparative Table for a detailed analysis of inclusion.

The following definitions shall apply to this article:

Encroachment includes going over, upon, under or using any public right-of-way or public watercourse in such a manner as to prevent, obstruct or interfere with its normal use, including the performance thereon of any of the following acts:

(1) Depositing or leaving any rubbish, brush, earth, building material or other material of any nature whatsoever upon a public right-of-way or public watercourse so as to cause such public right-of-way or public watercourse to be littered, unsightly or obstructed.

(2) Excavating, filling or disturbing the public right-of-way or public watercourse.

(3) Displaying or storing merchandise or other property upon a public right-of-way or public watercourse.

(4) Blocking the traveled way or impeding traffic.

(5) Blocking or covering traffic-control devices duly installed by the city.

(6) Erecting or maintaining any structure, including but not limited to, a flag, banner, decoration, post, sign, pole, fence, guardrail, wall, loading platform, mailbox, pipe, conduit, wire, vault or other structure on, over or under a public right-of-way or public watercourse.

(7) Reserved.

(8) Planting or allowing to extend, any tree, shrub, grass or other growing thing within a public right-of-way or public watercourse.

(9) Constructing, placing or maintaining on, over, under or within the public right-of-way or public watercourse any pathway, sidewalk, driveway, curb, gutter, paving, or other surface or subsurface drainage structure or facility.

(10) Constructing, placing, planting or maintaining any structure, embankment, excavation, tree, or other object adjacent to a public right-of-way or public watercourse which causes or will cause an encroachment.

Engineer shall mean the public works director or his designated representative.

Permittee is any person or entity, defined to include but not be limited to trust, partnership, sole proprietorship or corporation that proposes to do work or encroach upon a public right-of-way or public watercourse as herein defined and has been issued a permit for such encroachment in accordance with this article. "Permittee" is also the heirs and assigns and successors in interest of a permittee per section 22-11. For existing encroachments, as defined in section 22-13, or for encroachments not requiring a permit per section 22-3, "permittee" shall mean the current property owner adjacent to the encroachment.

Public right-of-way includes land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the general public for street, highway, alley, public utility or pedestrian walkway purposes.

Public utility shall mean any person or entity holding a franchise from the city or under the jurisdiction of the public utilities commission or special districts functioning to provide public utility services.

Public watercourse is a channel for the carrying of stormwater, including both natural and artificial public watercourses.

Standard street improvements shall mean improvements to the public right-of-way or public watercourse in accordance with the Belmont Standard Specifications and intended for acceptance by the city for maintenance. Typical standard street improvements include sidewalk, curb, gutter, paving, street lighting, medians, sanitary sewers and storm drainage facilities.

(Ord. No. 994, § 1, 12-9-03)

(a) It shall be unlawful and no permits shall be issued for any person or entity to:

(1) Deposit or leave any rubbish, brush, earth, building material or other material of any nature whatsoever upon a public right-of-way or public watercourse so as to cause such public right-of-way or public watercourse to become littered, unsightly or obstructed. See section 22-4(a)(8) for temporary storage of construction material in a public right-of-way.

(2) Display or store any merchandise or other property on a public right-of-way or public watercourse at any time. This section does not apply to items noted in section 22-3 as exempt from a permit or in section 22-5 for which a permit has been issued.

(3) Construct, place or maintain posts, poles, columns or structures for the support of advertising signs or for the support of lights intended primarily for lighting abutting property, excepting political signs installed in accordance with applicable provisions of the Municipal Code.

(4) Block the traveled way or impede traffic.

(5) Block or cover traffic-control devices duly installed by the city and/or other public utility devices.

(Ord. No. 994, § 1, 12-9-03)

(a) No permit shall be required to:

(1) Install and maintain a lawn, hedge, shrubs or other landscaping within a public right-of-way, so long as it is maintained out of the vehicle and pedestrian travel way, does not block existing off-street parking spaces, and does not create sight distance or safety problems.

(2) Install and maintain a mailbox for a single-family home.

(3) Install or maintain city improvements whether the work is accomplished by city employees or by a contractor working under contract for the city.

(4) Maintain or repair any pipe or conduit lawfully on, under or above any public right-of-way including excavation, as may be necessary for the preservation of life or property when an urgent necessity therefor arises, except that the person making an emergency use or encroachment shall apply for a permit the next business day.

(5) Install and maintain walkway lights intended for lighting encroached areas and abutting property.

(Ord. No. 994, § 1, 12-9-03)

(a) The public works director may issue written permits, in accordance with this article, authorizing the permittee to do any of the following acts:

(1) Excavate, fill or disturb, per chapter 9 of the Code, grading, any public right-of-way or public watercourse.

(2) Construct, place or maintain any structure within any public right-of-way or public watercourse below ground, such as any pipe, conduit, wire, utility vault or similar structure.

(3) Construct, place or maintain any structure within any public right-of-way or public watercourse roughly flush with the ground such as any pathway, sidewalk, driveway, parking pad or other standard street improvement.

(4) Construct, place or maintain within any public right-of-way street trees in a location, type and manner approved by the director of parks and recreation.

(5) Temporarily store within any public right-of-way construction material or temporarily install a bin for the collection of construction debris.

(b) The public works director shall have the sole authority to issue written permits for encroachments covered by section 22-4 if:

(1) The application meets the requirements of this article, including the city standards as noted in section 22-23.

(2) There is some public benefit to the encroachment.

(3) The encroachment will not unduly restrict the public right-of-way or public watercourse for other typical uses.

(4) The city will be duly protected from liability for injury to persons and property.

(5) Faithful performance of all conditions and requirements specified in the permit will be guaranteed by bonds.

(c) In issuing the permit, the public works director shall delineate:

(1) The time and dates during which the encroachment may be constructed and maintained.

(2) Supervision and safety precautions to be employed, including the erection of barricades, warning lights, signals and signs, and/or the employment of personnel to direct traffic.

(d) If the public works director determines that the findings enumerated in this section 22-4(b)(1)—(5) cannot be made, the permit shall be denied. Permit denial shall be in writing and may be appealed to the city council.

(Ord. No. 994, § 1, 12-9-03)

(a) The city council shall have the sole authority (except as approved in section 22-13(e)) to issue written permits in accordance with this article authorizing the permittee to do any of the following acts:

(1) Construct, place or maintain all improvements in the public right-of-way or public watercourse which are not enumerated in section 22-4, including but not limited to, fences, decorative walls, retaining walls and awnings.

(2) Construct, place or maintain any improvement listed in section 22-4, a permit for which was denied by the public works director and appealed to the city council.

(3) Construct, place or maintain any structure above ground within any public right-of-way or public watercourse if installed by a public utility, including but not limited to poles, wires, guy anchors, hydrants, aboveground cabinets for housing splices, transformers or switches.

(4) Construct, place or maintain within any public right-of-way a bus bench or shelter of a design acceptable to the city council.

(5) Install, place or maintain within any public right-of-way mail collection boxes owned and maintained by the United States Postal Service.

(b) All applications for major and unusual encroachments shall be submitted to the public works director who shall review the application and determine whether the application is in accordance with the requirements of this article. If the application meets the requirements of this article including city standards as noted in section 22-23, the public works director shall recommend approval, attaching such conditions as the director may deem necessary for the health, safety and welfare of the public and for the protection of the city.

(c) When an application is proposed in conjunction with the development of adjacent private property, the public works director's recommendation shall be reviewed by the planning commission simultaneously with any required zoning entitlements. The planning commission's recommendation shall be forwarded to the city council for final review and action. All other applications for major and/or unusual encroachments shall be forwarded directly to the city council for review based on the public works director's recommendation.

(d) The owners of properties within three hundred (300) feet of the applicant's property on which the encroachment is proposed, shall be notified of the proposed encroachment, of the scheduled time and place when the item will be heard by the planning commission and/or city council, and of their right to express any concerns at the scheduled meeting prior to planning commission and/or city council taking action on the encroachment.

(e) The city council may approve the application with conditions deemed necessary for health, safety and welfare of the public and protection of the city if it finds:

(1) Some public benefit to the encroachment. Examples of public benefit include but are not limited to a retaining wall that allows an added off-street parking space, sidewalk or safer sight distance. Other examples include retaining walls that reduce grading onsite (without themselves becoming unsightly), or new retaining walls to replace existing deteriorating retaining walls, or fences that provide a safety handrail for pedestrians, or encroachments that replace or improve an existing undesirable physical condition or provide other neighborhood betterment.

(2) That the encroachment will not unduly restrict the public right-of-way or public watercourse for other typical uses.

(3) That the city will be duly protected from liability for injury to persons and property.

(4) That faithful performance of all conditions and requirements specified in the permit will be guaranteed by the required bonds.

(5) That the encroachment is not solely for increasing the usable area of a private residence or business without a public benefit.

(f) In issuing the permit, the city council shall delineate:

(1) The time and dates during which the encroachment may be constructed and maintained.

(2) Supervision and safety precautions to be employed, including the erection of barricades, warning lights, signals and signs, and/or the employment of personnel to direct traffic.

(g) If the city council determines that the findings enumerated in this section 22-6(e)(1)—(5) cannot be made, the permit shall be denied.

(Ord. No. 994, § 1, 12-9-03; Ord. No. 1036, § 1, 5-27-08)

(a) Application form and content. All applications for encroachment permits shall be submitted on a form provided by the public works director. At a minimum, the applicant shall provide the following information:

(1) Full name, residence or business address of the applicant.

(2) Notarized signature in a form acceptable for recording with the San Mateo County Recorder's Office.

(3) A scaled plot plan showing the location, dimensions and details of the proposed encroachment.

(4) An accurate and complete description of the encroachment and an explanation of the need for the encroachment.

(5) An agreement duly executed by the applicant indemnifying the city against liability resulting from the encroachment and establishing responsibilities of the applicant.

(6) An application fee as established in the most current master fee schedule, bonds and liability insurance naming the city as an additional insured in a form acceptable to the finance director per section 22-12.

(7) In addition to the information listed above, the public works director may require additional information, including a survey, photographs, sketches, diagrams or similar exhibits necessary to illustrate location, dimension and purpose of the proposed encroachment and its relation to existing and proposed facilities in the public right-of-way or public watercourse.

(Ord. No. 994, § 1, 12-9-03)

The permittee shall maintain, repair, service and clean the encroachment at the sole expense of the permittee. Standard street improvements accepted for maintenance by the city, excepting sidewalks, shall be exempted from this section. In accordance with applicable sections of the California Streets and Highways Code, the adjacent property owner is responsible for maintaining sidewalk, curb and gutter adjacent to his property in such condition that it will not endanger persons or property.

(Ord. No. 994, § 1, 12-9-03)

The permittee shall remove or relocate encroachment that would interfere in any way with the construction, maintenance or repairs of any public utility, public works or public improvement of any descriptions if so required by the public works director in writing. Ten (10) days notice shall be all that is required. The cost and expense of such removal or relocation shall be borne by the permittee. Standard street improvements accepted for maintenance by the city and sidewalks shall be exempt from this section.

(Ord. No. 994, § 1, 12-9-03)

The permittee shall, upon written request of the public works director, remove the encroachment and restore the area if the encroachment falls into disuse for a period of six (6) months. Standard street improvements accepted for maintenance by the city and sidewalks shall be exempt from this section.

(Ord. No. 994, § 1, 12-9-03)

All encroachment permits shall be recorded with the county recorder. Said recording shall constitute notice to all heirs, assigns and successors in interest of the permittee of their responsibility with respect to maintenance, liability and potential relocation of the encroachment.

(Ord. No. 994, § 1, 12-9-03)

(a) The fees to accompany the permit application shall be established by resolution by the council in the city's current master fee schedule. No permit application will be accepted without the required fee.

(b) After city approval of the encroachment and prior to receiving the permit, the applicant shall deposit with the public works director cash, a letter of credit or a surety bond in an amount equal to one hundred (100) percent of the cost of constructing the encroachment (the "bonds"). The bonds are intended to guarantee that all conditions and requirements of the encroachment permit will be faithfully performed and completed within the time period specified in the permit. The bonds also will be used by the city, if necessary, to repair to the satisfaction of the public works director any damage caused to the city streets or property by the permittee in the course of the work. The bonds shall be executed by sureties approved by the finance director and shall be in such form as approved by the city attorney. The form of the bonds shall be such that the city may proceed against the permittee and his sureties on the bonds immediately upon any default, without waiting for the completion of work done. The bonds shall guarantee the work and shall remain in effect for a period of six (6) months following completion of said work.

(c) After city approval of the encroachment and prior to receiving the permit, the applicant shall deposit:

(1) A certificate of liability insurance in an amount and form acceptable to the finance director naming the city as an additional insured.

(2) A certificate of property damage insurance in an amount and form acceptable to the finance director naming the city as an additional insured.

(Ord. No. 994, § 1, 12-9-03)

(a) Any existing encroachment in the public right-of-way or public watercourse which, in the opinion of the public works director, interferes with the safe sight distance of drivers or pedestrians, or blocks the free passage of pedestrians or vehicles, or constitutes a threat to health and safety shall be removed forthwith by the permittee or adjacent property owner upon written notification from the public works director. If the encroachment is not removed, then city forces may remove the encroachment, at the direction of the public works director; and the permittee or adjacent property owner shall be responsible to reimburse the city for the cost of this work.

(b) No existing encroachments shall be exempt from section 22-8, "continual maintenance," [section] 22-9, "removal for public improvements," or [section] 22-10, "removal for disuse." When no permit has been issued, the responsibilities of the permittee listed in these three (3) sections shall be the responsibilities of the current adjacent property owner.

(c) This section shall not be construed to prohibit the city from requiring upgrading or removal of existing encroachments as a condition of development on the adjacent property.

(d) Any existing major encroachment in the public right-of-way or public watercourse which was constructed prior to the adoption of Ordinance No. 994 and, in the opinion of the public works director, does not interfere with the safe sight distance of drivers or pedestrians, does not block the free passage of pedestrians or vehicles, does not constitute a threat to health and safety, and does not interfere with the construction or maintenance of public improvements as noted in section 22-9, is required to have a permit agreement only at the time when the encroachment is replaced. The applicant or adjacent property owner shall submit an application to the public works director, prior to the replacement of the existing encroachment, which is subject to the approval process as noted in section[s] 22-6 or 22-13(e), whichever is applicable. The encroachment shall be removed by the applicant within thirty (30) days after notification from the public works director in the event the permit application is denied.

(e) If the applicant is requesting only to replace an existing encroaching retaining wall that was constructed before the adoption of Ordinance No. 994, the public works director may issue a written permit, in accordance with this article.

(1) All applications for replacing an existing encroaching retaining wall that was constructed prior to the adoption of Ordinance No. 994, shall be submitted to the public works director who shall review the application and determine whether the application is in accordance with the requirements of this article. If the application meets the requirements of this article including city standards as noted in section 22-23, the public works director shall approve, attaching such conditions as the director may deem necessary for the health, safety and welfare of the public and for the protection of the city.

(2) When an application is proposed in conjunction with the development of adjacent private property, the public works director's recommendation shall be reviewed by the planning commission simultaneously with any required zoning entitlements.

(3) The public works director may approve the application with conditions deemed necessary for health, safety and welfare of the public and protection of the city if it finds:

a. That the encroachment will not unduly restrict the public right-of-way or public watercourse for other typical uses.

b. That the city will be duly protected from liability for injury to persons and property.

c. That faithful performance of all conditions and requirements specified in the permit will be guaranteed by the required bonds.

d. That the encroachment will not create a hazardous condition for the public.

e. That the new retaining wall will occupy the same location and of the same height as the existing retaining wall.

(4) All retaining walls shall be of such a design as to conform to the natural setting and surroundings by meeting the following standards:

a. Retaining walls shall be of a medium to dark earthtone color.

b. Retaining walls shall be articulated in either a vertical or horizontal plane, e.g. advancing and receding vertical faces of walls or articulated top of wall.

c. The materials of the walls shall not be wire cut concrete block or similar materials.

d. Materials to be used shall provide a rough texture such as natural stone, brick veneer, fluted or split face stone, crib block, wood, or similar materials.

(5) In issuing the permit, the public works director shall delineate:

a. The time and dates during which the encroachment may be constructed and maintained.

b. Supervision and safety precautions to be employed, including the erection of barricades, warning lights, signals and signs, and/or the employment of personnel to direct traffic.

(6) When the public works director takes action on the permit, a notice of the intent to approve the permit and stating the opportunity to file a written appeal shall be sent to the city council, the applicant and adjacent property owners via U.S. mail at least ten (10) days prior to such action. Notice to the council may be provided by e-mail.

(7) If the public works director determines that the findings enumerated in this section 22-13(e)(3) cannot be made, the permit shall be denied. Permit denial shall be in writing and may be appealed to the city council.

(8) Encroachment permits for retaining wall encroachment shall be recorded with the county recorder. Said recording shall constitute notice to all heirs, assigns and successors in interest of the permittee of their responsibility with respect to maintenance, liability and potential relocation of the encroachment.

(f) All major encroachments on public right-of-way and public watercourse that are constructed without a permit after the adoption of Ordinance No. 994 are required to have a current valid permit from the city, and the applicant shall submit an application to the public works director and shall follow the approval process as outlined in section 22-6. The encroachment shall be removed by the applicant within thirty (30) days after notification from the public works director in the event the permit application is denied.

(Ord. No. 994, § 1, 12-9-03; Ord. No. 1036, § 2, 5-27-08)

No permit shall be issued under this article until the permittee has deposited the required fee, bonds and insurance.

(Ord. No. 994, § 1, 12-9-03)

All work done under the provisions of this article shall conform to city standards and state laws and be subject to inspection by the city. Should any dispute arise regarding conformance to specifications, such dispute shall be decided by the public works director; and the decision of the latter shall be final and conclusive.

(Ord. No. 994, § 1, 12-9-03)

At the completion of the work described in the permit required by this article, the city shall inspect the work. If the work has been satisfactorily completed and all rubbish and debris have been removed, the inspector shall issue a certificate of completion. When standard street improvements are installed and completed in accordance with applicable specifications and conditions, the certificate of completion shall be signed by the public works director and shall indicate if the improvement has been accepted by the city for maintenance. Sidewalks shall not be accepted by the city for maintenance.

(Ord. No. 994, § 1, 12-9-03)

In the event that the work referred to in this article is not satisfactorily completed, the city shall give a ten (10) days' written correction notice to the permittee. The ten (10) days shall be computed excluding Saturdays, Sundays and holidays. If deficiencies are not corrected within the ten (10) days, then the city shall correct the deficiencies and deduct the cost from the bonds or restore the site to its original condition. If the disapproval is based solely on the need for clean-up of the work area or the street, only twenty-four (24) hours' written notice is required before the city may take action and deduct the cost of cleanup from the bonds. The public works director shall report such action in writing to the city council and the city attorney.

(Ord. No. 994, § 1, 12-9-03)

If the work performed by any person under this article is not completed to the satisfaction and approval of the public works director, the bonds shall be for the use of the city and as part payment for the damage thereby sustained by the city. The city attorney shall, upon direction of the city council, commence suit in the name of the city against the permittee if the proceeds from the bonds are insufficient to compensate the city for damages sustained, including cost of engineering properly attributable to the project, attorney's fees and court costs.

(Ord. No. 994, § 1, 12-9-03)

A permittee may withdraw the bonds on deposit with the city at the completion of the six (6) month warranty period.

(Ord. No. 994, § 1, 12-9-03)

Any excavation of a public area by or on behalf of the city shall be exempt from the provisions of this article. No fee or bonds shall be required of the Midpeninsula Water District. A minimum of one (1) working day's notice to the city shall be required, except in emergencies excavations. Conformance to all other provisions of this article and all other pertinent city requirements is mandatory.

(Ord. No. 994, § 1, 12-9-03)

Every public utility maintaining pipes, conduits, cables or other equipment in the streets of the city shall file with the public works director during the month of January of each year a map indicating the size and location of each pipe, conduit, cable or other equipment owned or maintained by such public utility in the streets of the city; provided, however, that after the public utility has in the first instance filed such map, it may thereafter in January of each subsequent year, revise the map on file so as to show changes or extensions.

(Ord. No. 994, § 1, 12-9-03)

Any encroachment of a public right-of-way or public watercourse contrary to the provisions of this article shall be and the same is hereby declared to be unlawful and a public nuisance.

(Ord. No. 994, § 1, 12-9-03)

An owner of real property whose property is or was benefited by an encroachment established by themselves or their predecessors in interest must defend and indemnify the city and its officers, officials, employees and volunteers against any claim for injury to persons or damage to property related to or arising from the encroachment.

(Ord. No. 2025-1188, § 3, 5-13-25)

Any person, permittee or entity violating the provisions of this article shall be subject to the general penalty provisions of the Municipal Code Section 1-8.

(Ord. No. 994, § 1, 12-9-03)