Burbank Municipal Code Art. 7 Encroachment on City Property

For purposes of this chapter the term “encroach” shall mean any structure or object of any kind or character, temporary or permanent in nature, which extends on, in, over or under any City owned property, including streets, alleys, easements, sidewalks, and public rights of way. [Added by Ord. No. 3198, eff. 8/25/90.]

7-3-701.1: ENCROACHMENT ON CITY PROPERTY UNLAWFUL:

No person shall encroach on, in, over or under any real property, including easements, owned by the City, by any structure or object of any kind or character, temporary or permanent in nature, and whether such encroachment is real, personal or mixed property. [Formerly numbered Section 26-701; renumbered by Ord. No. 3198, eff. 8/27/90; 3058.]

Section 7-3-701.1 of this article shall not apply to those encroachments which:

A. After applying thereto the provisions of Section 7-3-701.1 of this article, nevertheless have legal sanction to encroach by law; or

B. Are authorized by written agreement made by and between the City and an owner of real property; or

C. Are authorized by a valid, uncancelled permit granted as hereinafter provided in this article.

D. Activities for which a valid license is issued under Article 11 of Chapter 4 of Title 3 of this Code. [Formerly numbered Section 26-88; Amended by Ord. No. 20-3,947, eff. 1/8/21; 3058; 2585.]

Application for a permit to encroach on City owned property shall be made by and in the name of the owner or of a person lawfully entitled to use the real property in connection with which the permit is sought to be obtained and shall be acknowledged by the applicant.

The application shall set forth the name and address of the applicant, the nature and description of the proposed encroachment, the location and description of the City owned property proposed to be encroached upon, the nature of the applicant’s interest in and the location and legal description of the property in connection with which the permit is sought to be obtained, the reasons for the application, such other information, including plats, as may be required by the Public Works Director, and the following provision:

I/We understand and agree: that any permit issued hereon shall be issued pursuant and subject to the provisions of Title 7, Chapter 3 of the Burbank Municipal Code, that such permit may be canceled by the City of Burbank, acting by and through its Public Works Director, at any time, and that the encroachment must be removed within thirty (30) days thereafter; that no right, title or interest in any property owned by the City of Burbank shall vest or accrue to me/us by reason of the issuance of such permit or exercise of the privilege given thereby; that I/we will not suffer or permit any dangerous or defective condition of property to exist in connection with exercise of the privilege; and that I/we assume and will pay for all injuries and damage to persons or property arising from or in connection with the exercise of the privilege.

The application shall be filed in duplicate with the Public Works Director and referred to the Public Service Department and Building Department, and in case of the construction of a building, sign or swimming pool, to the Planning Director, for recommendation. After such reference the Public Works Director is hereby empowered, in the exercise of their discretion, to deny or withhold approval of a permit applied for if in their sound judgment exercise of the proposed permit would cause public property to be or become in a dangerous or defective condition or unreasonably endanger or interfere with public health, safety, or convenience. The Public Works Director may approve the application either as submitted or subject to such terms and conditions as they shall consider necessary for the safeguarding of life and property.

However, no application shall be approved for canopies, fences or railings required by Section 4406 of the Uniform Building Code to protect pedestrians while construction is in progress unless the Building Department has issued a building permit for the construction. [Formerly numbered Section 26-89; renumbered by Ord. No. 3058, eff. 2/21/87.]

The Public Works Director shall collect a fee as specified in the Burbank Fee Resolution, as amended by the Council from time to time, for handling and recording the application and shall issue an encroachment permit. Applications and permits for canopies, fences, and railing required by Section 9-1.4406 of the Building Code, and applications and permits for Wayfinding Kiosks required by Section 7- 3-1102(B) of this Code need not be recorded. However, all other applications and permits shall be referred to the City Clerk for recording in the office of the County Recorder. The City Clerk shall keep a permanent file of all permits recorded. Each permit shall be construed as authorizing merely the temporary privilege to encroach to the extent permitted and subject to the conditions therein stated. No permit shall be deemed to transfer any right, title or interest of the City. The City may cancel a permit at any time and thereby terminate encroachment privileges. Permits for canopies, fences, and railings required by Section 9-1.4406 of the Uniform Building Code shall automatically expire when the construction permit expires or is canceled. [Amended by Ord. No. 25-4,035, eff. 1/16/26; 3153; formerly numbered Section 26-90; renumbered by Ord. No. 3058.]

By acceptance of performance of the privileges or any part thereof under such permit the permittee, or their beneficiaries, successors or assigns, shall not allow, by commission or omission, any dangerous or defective condition to exist at any time in, on, under or across the part of such easement covered by said permit and shall assume and pay for all injuries or damage caused to any person thereby. [Formerly numbered Section 26-91; renumbered by Ord. No. 3058, eff. 2/21/87.]

Encroachments permitted under this article shall be removed immediately after cancellation or expiration of the permit. Any encroachment not removed is hereby declared to be a nuisance. Failure, neglect or refusal to remove an unauthorized encroachment within thirty (30) days after notice by the City shall constitute a misdemeanor, and as a cumulative remedy the City may remove such encroachment and collect the entire cost and expense thereof from the person responsible therefor, or by appropriate action in court may compel its removal or abatement and such reasonable attorney fees as may be fixed by the court. [Formerly numbered Section 26-92; renumbered by Ord. No. 3058, eff. 2/21/87.]

No encroachment permit shall be issued under this article unless the applicant carries the following insurance, to be maintained for the full effective period of the permit and any renewal thereof:

A. Bodily Injury Liability And Property Damage: Bodily injury liability and property damage insurance including completed operations coverage, protecting the permittee from any and all claims and actions for bodily injury, including accidental death, and for property damage, which may directly or indirectly arise from, grow out of, or be attributable to, their operations or performance under the permit or contract, whether such operations be by the permittee or by any subcontractor, or by any person directly or indirectly employed by either or any of them, in an amount as required by the Public Works Director or their designee. All insurance endorsements and certificates of insurance shall be on a form approved by the City Attorney.

B. Insurance Must Protect City: Said insurance shall indemnify and save harmless the City, its officers, employees and representatives from any and all claims and actions for bodily injury, including accidental death, and for property damage, arising from the use of the premises or facilities of the City, and which may directly or indirectly arise from, grow out of, or be attributable to operations under the permit or contract. However, said insurance need not protect against injury or death occurring to any officer, employee, or representative while acting within the scope of their employment under the Workmen’s Compensation Act.

C. Notice of Cancellation: Said insurance shall provide that it will not be modified, changed or terminated until at least ten (10) days’ notice thereof has been filed with the City Clerk. Lapse or termination of such insurance shall automatically void the permit.

D. Exceptions to Insurance And Indemnity Requirements:

1. Governmental Agencies: The United States of America, State of California, or any political subdivision, agency or department thereof, and the Burbank Unified School District, doing work directly with its own employees, need not furnish the insurance prescribed by this section.

2. Public Utilities: Public utility companies with net assets of not less than one million dollars ($1,000,000.00) under the jurisdiction of the State Public Utilities Commission may, in lieu of the above insurance requirement, file annually with the City Clerk a statement in affidavit form duly authenticated by its president or vice president and secretary or assistant secretary, showing such net worth and indicating its election and agreement to be bound by the indemnification provision of this section. Such election, when approved as to form by the City Attorney, shall constitute an agreement to indemnify and save harmless the City, its officers, employees and representatives from any and all claims and actions for bodily injury, including accidental death, and for property damage, arising from the use of the premises or facilities of the City, and which may directly or indirectly arise from, grow out of, or be attributable to its operations or performance under the permit, as provided in subsection B of this section.

3. Owner-Contractor: An owner-contractor shall provide proof of bodily injury and property damage insurance of a type and in an amount as specified by the Public Works Director and as approved by the City Attorney. An owner-contractor shall agree to indemnify and save harmless the City, its officers, and employees from any and all claims on a form approved by the City Attorney. [Added by Ord. No. 3198, eff. 8/25/90].

A. A WTF Encroachment Permit shall be required prior to the installation, construction or development of any WTF in the PROW.

1. The Director may impose impact minimizing conditions on a WTF Encroachment Permit to mitigate potential noise or aesthetic impacts.

2. WTF Encroachment Permits shall be reviewed every 10 years to determine whether the equipment is no longer needed and or useful, or whether new means exist to further reduce noise and or aesthetic impacts that are materially greater than those that would have existed when the WTF was installed as originally permitted.

a. The Director may require facility upgrades and/or additional mitigations to reduce impacts of such facilities unless the applicant demonstrates that the mitigations are not feasible.

3. When the PROW abuts or is adjacent to an R-1, Single Family Residential Zone, the Director, in granting an Encroachment Permit must find that

a. The WTF is necessary to address a significant gap in coverage.

b. The WTF is necessary because no feasible less intrusive alternative is available.

4. Eligible Facilities Requests: Eligible Facilities Requests that do not require a Substantial Change in Physical Dimensions shall be processed in accordance with 47 U.S.C. § 1455, and any duly authorized implementing orders and regulations of the Federal Communications Commission. In reviewing WTF Encroachment Permits for qualifying Eligible Facilities Requests, the Director shall be required to approve applications, but shall retain discretion to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws (including, without limitation, this Article) codifying objective standards reasonably related to health and safety.

B. Development standards for PROW. In addition to all other applicable development standards as set forth in 10-1-1118, WTFs in the PROW shall comply with the following standards:

1. The Public Works Director or their designee shall determine the time, place, and manner of construction for all WTFs located within the PROW consistent with Public Utilities Code.

2. WTFs shall be fully concealed and have subdued colors and non-reflective materials which blend in with the surrounding area to the satisfaction of the Public Works Director or their designee. A WTF is considered fully concealed when it meets the following requirements:

a. Accessory equipment is placed entirely in an underground vault or entirely within the proposed pole, pole base and/or pedestal,

b. All conduits and wires are enclosed and concealed within the pole structure,

c. The replacement pole is not more than 5’ taller than the existing similar poles in the area,

d. The antenna shall be the smallest possible volume but in no case greater than three cubic feet, and

e. The antenna must be enclosed in an RF transparent shroud unless a whip style antenna is used.

3. In residential areas, WTFs shall not be located within one standard block width of another wireless telecommunications facility; this does not include co-location of sites.

4. All WTFs shall be built in compliance with the Americans with Disabilities Act (ADA), including but not limited to surface access in and around facilities.

5. Utility and Light Poles.

a. The maximum height of any antenna shall not exceed 24 inches above the height of an existing utility pole and no portion of the antenna or equipment mounted on a pole shall be less than 16 feet above any drivable road surface. All installations on utility poles shall fully comply with California Public Utilities Commission General Order 95.

b. The maximum height of any antenna or antenna radome shall not exceed five (5) feet above the height of an existing light pole.

c. Pole-mounted equipment shall not exceed six cubic feet.

d. Antennas shall be installed as fully concealed and integrated replacement poles for existing utility or light poles, except when impractical or technologically infeasible. No new poles may be installed except when the applicant provides evidence as part of the application showing why and how complying with the foregoing standard would be impractical or technologically infeasible. In such event, the Public Works Director may hire an independent, qualified consultant to evaluate any technical aspect of the proposed replacement or modification and any proposed exceptions from these development standards at the applicant’s sole cost. The applicant shall submit a deposit to pay for such independent third party review as set forth in the City’s Fee Resolution.

e. WTF Encroachment Permits granted for any new poles shall be processed in accordance with the following procedures:

i. PUBLIC NOTICE. Prior to the Public Works Director’s decision on a WTF Encroachment Permit application, public notice shall be mailed to every property owner and occupant within 1,000 feet of the proposed WTF site. Such notice shall be mailed no less than ten (10) business days prior to the scheduled Director’s decision date and shall include information about the proposed project, the Director’s pending decision, and information about when and how an appeal may be filed.

ii. DECISION DATE. If circumstances require, the Director’s decision may occur on a date later than the date provided in the public notice. The decision may not occur on a date earlier than the date provided in the public notice.

iii. APPEALS. The Director’s decision regarding a WTF Encroachment Permit application may be appealed in accordance with the procedures set forth in Section 7-3-708.5.

iv. EXEMPTION. Any WTF used exclusively for the collection and/or transmission of utility customer meter data shall be exempt from the provisions this subsection e. This exemption shall expire and become inoperative on August 7, 2013.

v. The Director, in granting an Encroachment Permit for any new pole must find that

a. The WTF is necessary to address a significant gap in coverage.

b. The WTF is necessary because no feasible less intrusive alternative is available.

c. Additionally, the Director may impose impact minimizing conditions on an encroachment permit to mitigate potential noise or aesthetic impacts.

6. Equipment Location.

a. Ground-mounted equipment that cannot be undergrounded, incorporated into the pole, pole base and/or pedestal shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise inconvenience public use of the right-of-way, or create safety hazards to pedestrians and/or motorists as determined by the Public Works Director or their designee.

b. In no case shall ground-mounted equipment, walls, or landscaping be located within 18 inches of the face of the curb.

c. Ground-mounted equipment shall not exceed a height of six feet and a total footprint of 20 square feet, excluding the required electric meter.

d. Ground-mounted equipment that cannot be undergrounded shall be screened, to the fullest extent possible, through the use of landscaping, walls, or other decorative features, to the satisfaction of the Public Works Director or their designee.

e. Required electrical meter cabinets shall be screened to blend in with the surrounding area to the satisfaction of the Public Works Director or their designee.

f. All graffiti on WTF must be removed at the sole expense of the applicant within 48 hours of notification.

g. Underground vaults will be reviewed and approved by the Public Works Director or their designee. Review may include but not be limited to: safe clearance from other utilities, ADA compliance, aesthetic impact and quiet mechanical heating, air conditioning or ventilation systems.

7. Minor tree trimming to accommodate safe access and maintenance to any and all antennas and associated equipment in the PROW may be permitted under the supervision of the City’s Parks and Recreation Forestry Services Section and the Public Works Department. Any proposed tree trimming shall be detailed in the scope of work included in the application. No tree removals or excessive tree trimming, resulting in the irreversible decline or death of a tree, is permitted unless otherwise approved by the Parks and Recreation Forestry Services Section.

8. Within 30 days after discontinuation of use, the WTF operator shall notify the Director in writing that use of the WTF has been discontinued.

9. A WTF must be completely removed, and the site returned to its pre-WTF condition within 180 days of discontinuation of use.

C. City Changes to the PROW

The permittee shall modify, remove, or relocate its WTF, or portion thereof, without cost or expense to the City, if and when made necessary by any abandonment, change of grade, alignment or width of any street, sidewalk or other public facility, including the construction, maintenance, or operation of any other City underground or aboveground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by City or any other public agency. Said modification, removal, or relocation of a wireless telecommunications facility shall be completed within a reasonable relocation time frame as determined by the Public Works Director. In the event a wireless telecommunications facility is not modified, removed, or relocated within said period of time, City may cause the same to be done at the sole expense of applicant. Further, in the event of an emergency, the City may modify, remove, or relocate wireless telecommunications facilities without prior notice to applicant provided applicant is notified within a reasonable period thereafter.

D. Preemption

Notwithstanding any other provision of this Code to the contrary, an applicant may request a waiver to excuse it from having to comply with this Section, or may appeal from the denial of an application reviewed under this Section, on the ground that the requirement or action taken by the City would violate state or federal law. The City shall grant the waiver or appeal, or excuse an applicant from compliance with all or a portion of this Section, if it finds based on substantial evidence in the record that the challenged requirement or action is preempted by state or federal law. [Added by Ord. No. 3817, eff. 10/14/11; amended by Ord. No. 17-3,897, eff. 11/17/17; 15-3,868; 3835.]

7-3-708.5: APPEAL OF DIRECTOR’S DECISION ON WIRELESS TELECOMMUNICATIONS FACILITY ENCROACHMENT PERMITS:

A. DECISION PROCEDURE.

1. Any approval, conditional approval or denial of a Wireless Telecommunication Facility Encroachment Permit application may be appealed to the City Council as provided in this section. A Director’s decision is not final unless and until the specified appeal period passes and no appeal is filed, or all appeals are withdrawn per Subsection (E).

2. If an appeal of a Director’s decision is filed, the City Council must hold a de novo hearing to consider and act on the application and appeal pursuant to the procedures established for Wireless Telecommunications Facility Encroachment Permits.

B. PERSONS WHO MAY APPEAL.

1. Any person, including the project applicant, may appeal a decision by the Director to approve, conditionally approve, or deny a Wireless Telecommunication Facility Encroachment Permit application.

2. If a City Council member files an appeal, the Council member may not participate as a decision maker in the City Council public hearing.

3. The City Council may appeal or otherwise request to review a Director’s decision.

C. TIME AND MANNER OF APPEAL.

1. An appeal of the Director’s decision must be submitted by 5:00 p.m. on the 15th day following the date that the Director’s decision is issued. If the 15th day following the Director’s decision date occurs on a day when City offices are closed, the appeal must be submitted by 5:00 p.m. on the next day that City offices are open.

2. An appeal must be submitted in person to the office of the Public Works Director and must include a statement of the reasons for the appeal. Mailed, emailed or faxed appeals will not be accepted.

3. The appeal must be accompanied by the appeal fee specified in the City of Burbank Fee Resolution, as may be amended from time to time, except that City Council members are not required to pay the appeal fee.

D. MULTIPLE APPEALS.

1. No one should forego filing an appeal in reliance on another individual’s appeal. Anyone who objects to a Director’s decision, or any conditions placed upon a conditional approval, should file an appeal to ensure that its concerns are heard in the event that other appeals are withdrawn per Subsection (E).

2. Multiple individuals may collectively act as one appellant, and submit a single appeal with a single set of reasons for appeal. In such case, payment of only one (1) appeal fee is required, and the appellants may divide the cost of the fee among themselves at their discretion.

3. Alternatively, multiple individuals may act as individual appellants, and each file its own individual appeal. In such case, payment of the full appeal fee is required for each individual form submitted.

4. All appeals filed whether as a single appeal or multiple appeals, must be considered together at a single hearing and acted upon by the City Council at the same time.

E. WITHDRAWAL OF APPEAL.

1. Any person who has filed an appeal may withdraw the appeal as a matter of right, until the City Clerk has scheduled the City Council hearing. In such case, an appeal may not be withdrawn on or after the 20th day prior to the scheduled City Council hearing.

2. A request to withdraw an appeal must be submitted in person to the office of the Public Works Director in writing and signed by the appellant. Mailed, emailed or faxed requests for withdrawal will not be accepted.

3. If multiple individuals collectively submitted a single appeal form, all individuals signing the appeal form must sign and submit a written request to withdraw the appeal within the time specified in Subsection (1) for the appeal to be considered withdrawn.

4. If all appeals are withdrawn and no subsequent appeals are filed within the times specified in Subsections (C) and (F), then the application will be removed from the City Council scheduled agenda, and the City Council will not consider or act upon the application. The Director’s decision thereafter becomes final and may not be further appealed.

F. SECONDARY APPEAL PERIOD.

1. Upon the withdrawal of an appeal (and only if no other appeals remain outstanding), a secondary ten (10)-day appeal period shall automatically commence to provide an additional opportunity to appeal (the “Secondary Appeal Period”).

2. The first day of the Secondary Appeal Period is the latter of the following: 1) first day after the appeal was withdrawn, whether or not that day is a business day, or 2) the first day after the expiration of the initial 15-day appeal period provided in Subsection (C), whether or not that day is a business day. The latter date only applies to those appeals which are withdrawn during the initial appeal time period.

3. Appeals submitted during the Secondary Appeal Period must be submitted in accordance with this Section, including but not limited to the 5:00 p.m. deadline for the filing of any appeal. If the last day of the Secondary Appeal Period occurs on a day City offices are closed, then the last day for filing shall be extended to 5:00 p.m. on the next day that the City offices are open.

4. Appeals submitted during this Secondary Appeal Period may be withdrawn in accordance with Subsection (E); however, only one (1) Secondary Appeal Process is allowed on any application. Withdrawal of an appeal made during the Secondary Appeal Period will not lead to any additional appeal periods.

5. Notice of the Secondary Appeal Period will be provided to any person who requests in writing such notice. A request shall be made to the Director on any individual application at any time; however, only those individuals on record at the time of a withdrawal that triggers a Secondary Appeal Period shall receive notice. Notice may be provided in the manner specifically requested (telephone or electronic mail), and must also be posted at the Public Works counter. Additional notice may be provided through any other additional means deemed appropriate by the Director. [Added by Ord. No. 3835, eff. 2/8/13; amended by Ord. No. 15-3,868, eff. 9/25/15.]