Carlsbad Municipal Code Ch. 2.36 Procedures for Work in the District Right-of-Way

This chapter may be cited as the "Right-of-Way Permit and Encroachment Agreement."

(Ord. 51, 10/7/2025)

The following words shall have the following meanings and set out in this chapter:

"Encroachment"

means and includes any tower, pole, pole line, pipeline, fence, billboard, stand or building, or any structure, or pavement of any kind or character whether it is particularly mentioned in this section, which is placed in, under, or over any portion of a District facility or right-of-way.

"Plans"

means the document developed and approved by the Public Works Director describing the nature and extent of works proposed to be constructed or carried out in a District right-of-way.

"Right-of-way"

means any District real property easement, District interest in real property, or public utility easement used by the District.

"Specification"

means the standard specifications used for public works construction (current edition including supplements) written and promulgated by the Southern California Chapter of American Public Works Association and Southern California District Associated General Contractors or California Joint Cooperative Committee and published by Building News Incorporated or other such specifications noted on approved plans including District standard drawings and specifications.

"Standard drawings"

means the standard drawings of the District, adopted and revised by the Public Works Director and most recently adopted San Diego Regional Standard Drawings.

(Ord. 51, 10/7/2025)

This chapter shall be administered by the Public Works Director who shall have the responsibility and authority to:

A. Establish the form and procedures for application for encroachment permits required pursuant to this title including the certification of completed applications, the approval of plans, the establishment of files, collection of fees and security deposits;

B. Interpret provisions of this title and advise the public regarding requirements for plans, specifications, and special provisions for facilities or encroachments subject to the provisions of this title;

C. Establish the format and content of plans and standards governing work on facilities or encroachments pursuant to the provisions of this chapter;

D. Issue permits upon such conditions as determined are reasonable and necessary to protect the public health, safety, and welfare;

E. Amend any permit issued when determined that such amendment is necessary to provide for the safe and efficient movement of traffic, or to protect District facilities, persons, or property.

(Ord. 51, 10/7/2025)

No person shall do any of the following acts without first obtaining a valid right-of-way permit and encroachment agreement:

A. Make, or cause to be made, an excavation or opening, fill or obstruction in, over, along, across, or through any District right-of-way for any purpose whatsoever;

B. Construct or repair, or cause to be constructed or repaired, any fence, curb, sidewalk, gutter, curb with integral gutter, drive approach, driveway, alley approach, spandrel and cross gutter, wheelchair ramp, structure, planter, wire, pipe, conduit, cable, or vault over, along, across, overhanging, or through any District facility or right-of-way;

C. Plant any tree, plant, shrub, or flower within any District right-of-way;

D. Construct or modify, or cause to be constructed or modified, any storm drain or conveyor of drainage of waters and appurtenance items within a District right-of-way, except for drainage by controlled surface flow;

E. Modify, alter or deface any block wall on or adjacent to a District right-of-way;

F. Enter into or exit from any District right-of-way at any location not approved and constructed as a driveway.

(Ord. 51, 10/7/2025)

A. Any person proposing to do any of the acts described in Section 2.36.040 of this chapter shall make an application for a: (1) right-of-way permit; and if required (2) encroachment agreement to the Public Works Director.

B. The following information shall be included in the application:

1. The location, nature, and extent of work to be performed;

2. The proposed date when such work shall be commenced;

3. The proposed date when the work shall be completed;

4. Such other information as may be required by the Public Works Director.

C. The Public Works Director may require the application to contain an encroachment agreement if deemed necessary due to the location, size, duration, and/or nature of the encroachment. The encroachment agreement shall:

1. Require the encroachment to be placed and maintained in a safe and sanitary condition and without hindering access for maintenance or operation of District facilities;

2. Require removal of the encroachment by the permittee upon reasonable demand by the Public Works Director;

3. Allow the District to remove the encroachment and place a lien on the property if the permittee does not remove the encroachment in a reasonable time period;

4. Allow for the removal of the encroachment by the District during the performance of any emergency repairs without liability to the District for damages;

5. Require adequate security of performance of such promise;

6. Require indemnification of the District in accordance with Section 2.36.160;

7. Be in a form acceptable to the General Counsel.

D. The applicant may be required to provide proof of liability insurance in an amount set by the City's Risk Manager and may be requested to name the District as an additional insured under the insurance policy. The insurance shall be provided by a company satisfactory to the City's Risk Manager. Any deductible or self-insured retention under the insurance policy shall be in an amount acceptable to the City's Risk Manager.

(Ord. 51, 10/7/2025)

The Public Works Director may require the proposed work to be accompanied by plans if the Public Works Director determines the proposed work requires the making of plans, setting of stakes, or both. These plans shall be prepared by a competent engineer licensed by the California Department of Consumer Affairs. These plans shall be reviewed by the Public Works Director or designee and the applicant shall pay the necessary fees in accordance with Chapter 2.24. The applicant shall bear all costs to prepare and process said plans.

(Ord. 51, 10/7/2025)

Every permittee shall commence work as stipulated in the permit application and diligently pursue the work to completion without interruption within the time period specified in the permit. A permit issued under this chapter may be limited to a period of time as specified in the permit.

(Ord. 51, 10/7/2025)

A. The permittee shall perform the work in a timely manner, in accordance with applicable plans, specifications and District standards to the satisfaction of the Public Works Director.

B. No person shall cause any improvement or appurtenant work to be performed on any District right-of-way by any person other than a licensed contractor or a public utility.

C. All work shall be inspected by the District representative as follows:

1. No person shall prevent or obstruct the District representative in making any inspection authorized by this title or in taking any sample or in conducting any test.

2. Inspection requests must be made with twenty-four-hour notice to the District.

3. All work not in conformance with approved plans and specifications is subject to rejection by the District.

4. Request for final inspection shall be made in writing.

D. As the work progresses, the District right-of-way shall be thoroughly cleaned of all rubbish, excess earth, rock and other debris resulting from such work. All construction and maintenance work shall be done in a manner designed to leave the area clean of earth and debris and in a condition as nearly as possible to that which existed before such work began. All cleanup operations at the location of such work shall be accomplished at the expense of the permittee. Upon failure of the permittee to clean the area, the District may proceed with cleanup and removal of the material or obstruction in accordance with procedures identified in Section 2.36.140 of this chapter.

(Ord. 51, 10/7/2025)

The Executive Manager or designee will issue a certificate of acceptance if the work has been completed according to the requirements of this chapter and the permit. This determination may be reached by performing a survey, or by inspection, or by both methods. The certificate of acceptance will contain a statement of the location, nature, and extent of the work performed under the permit.

(Ord. 51, 10/7/2025)

A. The District may deny the issuance of a right-of-way permit to any person who refuses or fails to comply with the provisions of this chapter, who is indebted to the District for past permit violations, or who, in the judgment of the Public Works Director, has repeatedly violated permit procedures or failed to comply with conditions requiring protection of the public health and safety.

B. The Public Works Director may deny the issuance of a right-of-way permit to any person who refuses to execute an encroachment agreement as required by Section 2.36.050.

C. Any permittee found in violation of the conditions of the permittee's permit or the provisions of this chapter shall be given a written notice to comply, explaining the violation and corrective actions required. Upon receipt of the notice to comply, the permittee shall take action to correct the condition of violation within the period provided in the notice. If, within that period, appropriate measures have not been implemented, the District may revoke the permit, pursue enforcement remedies under Carlsbad Municipal Code Chapters 1.08 and 1.10, and take any measures required to secure the work site or return the work site to its original condition. The District may charge the permittee for all costs of such corrective work.

D. A revoked permit may be reinstated if the permittee demonstrates, to the satisfaction of the Public Works Director, that work will be continued in conformance with the permit and the provisions of this chapter.

E. The Public Works Director shall require, as a condition of the permit, payment of all charges incurred by the District as a result of permit revocation including any penalties for violation of the provisions of this chapter as provided in Section 1.20.010.

(Ord. 51, 10/7/2025)

A. Any person aggrieved by any decision of the Public Works Director with respect to the issuance, revocation, or refusal to issue a right-of-way or encroachment permit may appeal to the Board by filing a notice of appeal with the Secretary of the Board within ten calendar days after the date of mailing of the decision of the Public Works Director. Appeals shall be in writing and shall state the basis for the appeal. Fees for filing an appeal shall be in an amount established by resolution of the Board. The decision of the Board shall be final.

B. Upon filing a written appeal, the Secretary shall fix a time and place for hearing such appeal. The Secretary shall give notice to the appellant and applicant/permittee of the time and place of hearing by serving the notice personally or by depositing it in the United States Post Office postage prepaid, addressed to such persons at their last known address unless otherwise requested in the notice of appeal.

C. The Board shall have the authority to determine all questions raised on such appeal.

(Ord. 51, 10/7/2025)

Encroachment application and right-of-way permit fees shall be charged by the District for the processing of an encroachment application and the issuance of a right-of-way permit. The fees shall be established by resolution of the Board for the purpose of defraying the cost of processing an application, issuing the requested permit, inspection of works completed under the permit, and other costs of administrating this title. The fees shall be paid at the time of application.

(Ord. 51, 10/7/2025)

A. As a condition of issuance of a right-of-way permit, the Public Works Director may require posting of a cash deposit or an equivalent security in a form acceptable to the General Counsel. The applicant shall post a security for one hundred percent of the bond amount for performance and fifty percent of the bond amount for labor and materials, totaling one hundred fifty percent of the bond amount. The cash deposit may be used at the discretion of the Public Works Director to provide for restoration of District facilities or removal from the right-of-way of work, materials or equipment when permittee or the permittee's agent fails to act in a timely manner to provide for the public health, safety, or welfare. The deposit shall otherwise be for the purpose of guaranteeing performance of work contemplated under the permit.

B. The amount of the deposit shall be established by the Public Works Director.

C. Upon completion and acceptance of work under permit, any funds unused shall be refunded to the applicant and any other bonds or security instruments shall be released.

D. If, in the opinion of the Public Works Director, any deposit or security is not sufficient for the protection of the public interest in the public places, the Public Works Director may require an additional deposit or an increase in the security in such amount as he or she determines necessary. The permittee shall, upon demand, deposit the additional cash or security.

E. Upon failure or refusal to pay, the Public Works Director may revoke the permit and/or recover the deficiency by appropriate action in any court of competent jurisdiction, and until such deficiency is paid in full, no other permit shall be issued to such permittee.

(Ord. 51, 10/7/2025)

A. No person shall place or maintain any material or any obstruction or impediment to travel in or upon any District right-of-way or access to any District facility without a permit to do so.

B. Persons violating provisions of Section 2.36.080D, 2.36.140A, or 2.36.150A shall be issued a notice of removal and given a specified time to remove such material, obstruction or impediment. Any failure to comply with the notice is unlawful and a public nuisance endangering the health, safety, and general welfare of the public. In addition to any other remedy provided by law for the abatement of such public nuisance, the Public Works Director may, after giving notice, cause the work necessary to accomplish the removal. The costs of removal may be assessed against the owner or owners of the project creating the obstruction.

C. Notice of removal shall be in writing and mailed to all persons whose names appear on the last equalized assessment roll as owners of real property creating the obstruction at the address shown on the assessment roll. Notice shall also be sent to any person known to the Public Works Director to be responsible for the nuisance. The Public Works Director shall also cause at least one copy of such notice to be posted in a conspicuous place on the premises. No assessment shall be held invalid for failure to post or mail or correctly address any notice. The notice shall particularly specify the work required to be done and shall state that if the work is not commenced within twenty-four hours after receipt of such notice and diligently prosecuted (without interruption) to completion, the District shall cause such work to be done, in which case the cost and expense of such work, including incidental expenses incurred by the District, will be assessed against the property or against each separate lot and become a lien upon such property.

D. If upon the expiration of the twenty-four-hour period provided for in subsection C of this section, the work has not commenced or is not being performed with diligence, the Public Works Director shall proceed to do such work or cause such work to be done. However, the District may proceed to remove the encroachment immediately and without notice to the owner if removal of the encroachment is necessary to make emergency repairs to District facilities.

E. Upon completion of such work, the Public Works Director shall file written report with the Board setting forth the fact that the work has been completed and the cost of the work, together with a legal description of the property against which cost is to be assessed. The Board shall thereupon fix a time and place for hearing protest against the assessment of the cost of such work. The Public Works Director or the Secretary of the Board, if so directed by the Board, shall thereafter give notice in writing to the owners of the project in the manner provided in subsection C of the hour and place that the Board will pass upon the Public Works Director's report and will hear protests against the assessments. Such notice shall also set forth the amount of the proposed assessment.

F. Upon the date and hour set for the hearing of protests, the Board shall hear and consider the Public Works Director's report and all protests, if there are any, and then proceed to confirm, modify, or reject the assessments.

G. A list of assessments as confirmed by the Board shall be sent to the City's Finance Department for collection. If any assessment is not paid within ten days after its confirmation by the Board, the Secretary shall cause to be filed in the office of the County Recorder a notice of lien, substantially in the following form:

H. From and after the date of recordation of such notice of lien, the amount of the unpaid assessment shall be a lien on the property against which the assessment is made, and such assessment shall bear interest at the maximum rate allowed by law until paid in full. The lien shall continue until the amount of the assessment and all interest on the assessment has been paid. The lien shall be subordinate to tax liens and all fixed special assessment items previously imposed upon the same property, but shall have priority over all contractual liens and all fixed special assessment liens, which may subsequently be created against the property, to the maximum extent permissible by law. From and after the date of recordation of such notice of lien, all persons shall be deemed to have notice of the contents of the lien.

(Ord. 51, 10/7/2025)

A. The Public Works Director may require any permittee, who pursuant to a duly issued right-of-way permit under this title, has performed construction work or placed and maintained any encroachment, to remove or move the encroachment at the permittee's own cost and expense to such different location as is specified in a written demand of the Public Works Director, whenever such move is necessary to ensure the safety and convenience of the public or the operation, maintenance, reconstruction or replacement of District facilities. The Public Works Director shall specify in the demand a reasonable time within which the work of relocation must be commenced, and the permittee must commence the relocation within the time specified in the demand and diligently prosecute the same to completion. If permittee fails to diligently remove the encroachment, the Public Works Director may proceed under Section 2.36.140.

B. The District shall have the right to relocate or remove any encroachment in response to an emergency condition requiring immediate repair, without the notification of the permittee or the owner of any encroachment into a District right-of-way.

(Ord. 51, 10/7/2025)

The applicant for a permit, as a condition to receiving a permit shall sign a statement agreeing to indemnify, defend, and hold harmless the District and its officers and employees, from any liability or responsibility for death or injury to persons and loss or damage to property happening or occurring as a result of the design or performance of any work undertaken under any permit granted pursuant to the application. The applicant may be required to provide proof of liability insurance in an amount set by a resolution of the Board and may be requested to name the District as an additional insured under the insurance policy. The insurance shall be provided by a company satisfactory to the City's Risk Manager. Any deductible or self-insured retention under the insurance policy shall be in an amount acceptable to the City's Risk Manager.

(Ord. 51, 10/7/2025)

The District shall not be liable for any damages whatsoever to the encroachment facilities or encroachment area when the damages are related in any way to the District's continued use of the right-of-way, or are as a result of the District's construction, use, repair, replacement or relocation of any District facilities within the right-of-way.

(Ord. 51, 10/7/2025)

The District, the District's agents, and the City's employees, acting in their official capacity, are exempt from the requirements set forth in this title.

(Ord. 51, 10/7/2025)