Chico Municipal Code Ch. 14.08 Encroachment and Excavation Permits

This chapter is adopted pursuant to the municipal affairs provisions of the city Charter for the purpose of regulating excavations and/or encroachments on, over or under a public right-of-way or public service easement.

(Ord. 1928 §2 (part))

Unless the contrary is stated or clearly appears from the context, the following definitions shall govern the construction of the words and phrases used in this chapter:

A. Encroachment. The term “encroachment” shall mean any construction work performed within a public right-of-way or public service easement; any work other than construction work performed within a public right-of-way or public service easement which obstructs the public right-of-way or public service easement or interferes with the use of the public right-of-way or public service easement for its intended purpose; and any structure or object other than a vehicle which is placed or installed within a public right-of-way or within a public service easement in a manner which obstructs the public right-of-way or public service easement, or in a manner which otherwise interferes with the use of the public right-of-way or public service easement for its intended purpose.

B. Excavation. The term “excavation” shall mean the removal of any asphalt, concrete or other surface material covering a public right-of-way or public service easement, and/or the removal of any earth material in or under the public right-of- way or public service easement.

C. Public Right-of-Way. The term “public right-of-way” shall mean any city street, sidewalk, pedestrian path, bike path or any other “public way,” as that term is defined in the California Streets and Highways Code.

D. Public Service Easement. The term “public service easement” shall mean any public sewer easement, public storm drain easement, public utility easement or other “public service easement,” as the term is defined in the California Streets and Highways Code.

(Ord. 1928 §2 (part), Ord. 1992 §1, Ord. 2615 § 3)

The public works director shall administer this chapter, including, but not limited to, acting on all applications for a permit required by this chapter, and undertaking any of the enforcement actions provided for by this chapter. Where the term “director” is used in this chapter, it shall refer to the director of the public works department.

(Ord. 1928 §2 (part), Ord. 2012 §4 (part), Ord. 2136 §4, Ord. 2151 §7, Ord. 2364 §120, Ord. 2439 §87)

A. Right to Administrative Review. Any person aggrieved by a determination made or action taken by the director pursuant to the provisions of this chapter may apply to the city manager for administrative review of such determination or action.

B. Applications for Administrative Review. Applications for the administrative review of a determination made or action taken by the director pursuant to this chapter shall be in writing and shall be filed in the office of the city manager no later than 15 days following the date such determination or action was made or taken, or where written notice of such determination or action is required to be served, the date such notice is served, provided that the city manager may extend the time for filing an application for good cause shown. In addition to setting forth a request for administrative review of a determination made or action taken by the director, such application shall contain a brief statement of the reasons why the applicant believes that such determination or action does not comply with the provisions of this chapter, and shall set forth the relief requested by such person from such determination or action.

C. Decision on Application for Administrative Review. Upon the filing of an application for administrative review of a determination made or action taken by the director pursuant to the provisions of this chapter, the city manager shall consider the application and render a decision either affirming the determination or action of the director or reversing or modifying such determination or action. Prior to rendering a decision, the city manager may, with sole discretion, convene an informal hearing for the purpose of reviewing evidence or hearing arguments bearing on such decision, provided notice of the date, time, and place of such hearing is served on the person who filed the application for administrative review within a reasonable time prior to such hearing. After rendering a decision, the city manager shall promptly inform the director of the decision and shall cause a notice of the decision to be served on the person who filed the application for administrative review.

D. Stay of Determination Made or Action Taken by Director Pending Administrative Review. Any determination made or action taken by the director in accordance with the provisions of this chapter, save and except for an order to stop work issued by the director or the commencement or prosecution of work by the director to remove or remedy a condition in a public right-of-way or public service easement which threatens the safety of life or property, shall be stayed pending a decision of the city manager on an application for administrative review of such determination or action.

(Ord. 1928 §2 (part), Ord. 2012 §4 (part), Ord. 2136 §5, Ord. 2268, Ord. 2364 §121)

A. Right to Appeal. A person aggrieved by a decision of the city manager following the filing of an application for the administrative review of a determination made or action taken by the director pursuant to the provisions of this chapter may appeal such decision to the city council within the time and in the manner provided for by Title 2 of this code.

B. Stay of Decision of City Manager Pending Appeal. Any decision of the city manager on an application for administrative review of a determination made or action taken by the director in accordance with the provisions of this chapter, save and except for an order to stop work issued by the director or the commencement or prosecution of work by the director to remove or remedy a condition in a public right-of-way or public service easement which threatens the safety of life or property, shall be stayed pending a final decision of the city council on such appeal.

(Ord. 1928 §2 (part), Ord. 2004 §12, Ord. 2012 §4 (part), Ord. 2136 §5, Ord. 2364 §122)

Except as provided in this chapter, it shall be unlawful for any person to encroach upon a public right-of-way or public service easement or make an excavation within public right-of-way or public service easement unless and until a permit for such encroachment or excavation has been approved and issued in the manner provided by this chapter and Chapter 14.10 if applicable.

(Ord. 1928 §2 (part), Ord. 2615 § 4)

Notwithstanding the provisions of this chapter to the contrary, a permit shall not be required for the following encroachments or excavations on or within a public right-of-way or public service easement:

A. An encroachment made in the performance of work required by a public works contract between the city and a contractor;

B. An encroachment made pursuant to a permit authorizing the use of city streets or sidewalks for parades, athletic events or public assemblies issued in the manner hereinafter provided by this title;

C. An encroachment made by a city officer or employee acting within the course or scope of such officer's or employee's duties or employment; and

D. An encroachment made by the owner or lessee of property adjoining a public right-of-way within the central commercial zoning district for a sidewalk café pursuant to a license authorizing the use of the right-of-way for such a purpose.

E. No encroachment permit shall be required in connection with the removal of turf or grass from a parkway in front of a residential structure for the purpose of installing water-efficient landscaping and/or irrigation systems, provided that all of the following conditions are met:

1. No excavation shall occur at a depth greater than 12 inches.

2. Prior to excavation or installation, the property owner shall contact the Underground Service Alert (USA North 811) and the City of Chico to locate underground utilities, and otherwise comply with Section 4216 et seq. of the California Government Code (as amended).

3. The excavation or installation work shall be performed with due diligence and in a manner that does not obstruct or interfere with a public street, utilities, street trees, or other facilities located within the public right-of-way or public service easement any more than is absolutely necessary.

4. Street trees requiring irrigation shall not be deprived of such irrigation.

5. No plants, other than trees, shall be planted which will grow to a height greater than 2 feet at maturity; or to a height that will interfere with service lines and sight distance areas.

6. The turf grass and/or other high water use vegetation is replaced in compliance with the City of Chico Residential Parkway Landscape Conversion Guidelines.

7. All applicable requirements of CMC Chapter 19.68 – Landscaping Standards are met.

(Ord. 1928 §2 (part), Ord. 2050 §1, Ord. 2364 §123, Ord. 2464 §§1, 3, Ord. 2615 § 5)

Applications for a permit required by this chapter shall be filed in the office of the director, shall be in a form and contain the information prescribed by the director and shall be accompanied by a permit fee in an amount established by resolution of the city council.

(Ord. 1928 §2 (part), Ord. 2012 §4 (part), Ord. 2136 §6, Ord. 2364 §124)

Where an application is filed for a permit required by this chapter which would authorize construction or excavation work within a public right-of-way or public service easement, the applicant shall establish to the satisfaction of the director:

A. That the applicant, or the applicant's hired contractor in the case that the applicant is not the party performing the work, holds a valid contractor's license issued pursuant to Chapter 9, Division 3 of the California Business and Professions Code (commencing with Section 7000) to perform the kind of work within the public right-of-way or public service easement to be authorized by the permit; or

B. The applicant owns the property adjoining that portion of the public right-of-way or public service easement in which the work to be authorized by the permit will be performed, that such work will consist entirely of minor repairs to sidewalks, curbs, gutters or driveway, and/or the installation of landscaping within the parkway strips adjoining such public right-of-way, and that the work will be performed entirely by the applicant.

(Ord. 1928 §2 (part), Ord. 1992 §2, Ord. 2364 §125, Ord. 2615 § 6)

Where an application is filed for a permit required by this chapter which would authorize construction or excavation work within a public right-of-way or public service easement, the applicant shall file with the director plans, specifications and material submittals for review and approval, which indicate the location, construction materials and products to be used, nature and extent of the work to be performed within the public right-of-way or public service easement pursuant to the permit and which establish that such work will conform to the design criteria and improvement standards adopted in Title 18R of this code and/or any other applicable laws and regulations.

(Ord. 1992 §3, Ord. 2364 §126, Ord. 2615 § 7)

Where the director determines that a completed application has been filed for a permit required by this chapter and there are no grounds for denying such permit, the director shall approve the application and issue the permit subject to all of the general and special conditions hereinafter provided for by this chapter at such time as the applicant has provided the Comprehensive Liability Insurance, an Encroachment Permit Excavation Bond (if applicable), City of Chico Business License, Site Plan, Erosion Sediment Control Plan, Traffic Control Plan, Material Submittal(s) (if applicable) and otherwise complied with all other general or special conditions required as conditions precedent to the issuance of the permit.

(Ord. 1928 §2, Ord. 2364 §127, Ord. 2615 § 8)

A. Grounds for Denial. The director shall deny an application for a permit required by this chapter if the director determines that:

l. The encroachment or excavation proposed by the application is for the construction or installation of improvements or facilities within a public right-of-way or public service easement which are not an authorized use of a public right-of-way or public service easement;

2. The encroachment or excavation, if carried out in the manner proposed in the application, would unreasonably interfere with the use of public or private property adjoining or in the neighborhood of the public right-of-way or public service easement in which such encroachment or excavation is to be made;

3. The encroachment or excavation, if carried out in the manner proposed in the application, would threaten the safety of life or property; or

4. The excavation will be in a moratorium street and the applicant has not received a waiver as per Section 14.10.050.

B. Notice of Denial. Where the director determines to deny an application for a permit required by this chapter, the director shall promptly cause a notice of such determination to be served on the permit applicant. In such notice the director shall state the reasons for the determination not to approve the application and shall set forth the right of the applicant to apply for administrative review and appeal such determination in the manner provided by this chapter.

(Ord. 1928 §2, Ord. 2364 §128, Ord. 2615 § 9)

A. Insurance Requirements. Except as hereinafter provided by this chapter, no permit shall be issued pursuant to the provisions of this chapter unless and until the permittee has obtained a comprehensive general liability insurance policy from an insurance company licensed to do business in the state of California and having a financial rating in Best's Insurance Guide of at least “B,” which provides insurance coverage against all liabilities for death, personal injury or property damage arising out of or in any way related to the encroachment and/or excavation work authorized pursuant to such permit.

B. Amount of Insurance. The comprehensive general liability insurance obtained by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter shall be in an amount of at least $1,000,000.00, combined single limit, except that where the city's risk manager determines that work performed pursuant to such permit involves unusual risks which expose the city to liabilities in excess of $1,000,000.00, then such insurance shall be in an amount which the city's risk manager determines is necessary to fully cover city's exposure to all such risks.

C. Form of Insurance. The comprehensive general liability insurance obtained at the time of the issuance of a permit pursuant to the provisions of this chapter shall include an endorsement naming the city, the city's officers, employees and agents as additional insureds under the coverage afforded, shall be primary with respect to any other insurance available to the city, shall include a severability of interest (cross-liability) clause, shall require the insurer to provide city at least 30 days prior notice of cancellation, and otherwise shall be in a form approved by city's risk manager.

D. Proof of Insurance. Proof of comprehensive general liability insurance provided by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter shall be in a form approved by the city's risk manager and shall be filed with the director prior to the issuance of such permit.

(Ord. 1928 §2 (part), Ord. 1992 §4, Ord. 2364 §129)

Where a permit is issued pursuant to the provisions of this chapter which authorizes construction or excavation work within a public right-of-way or public service easement to be undertaken and performed by a person owning the property adjoining that portion of the public right-of-way or public service easement in which the work is to be performed, the permittee may comply with the liability insurance requirements of this chapter by filing with the director a copy of the permittee's homeowner's insurance policy with liability limits of at least $1,000,000.00, in lieu of the comprehensive general liability insurance required by Section 14.08.120 of this chapter.

(Ord. 1992 §5, Ord. 2364 §130, Ord. 2615 § 10)

As a further condition of the issuance of a permit required by this chapter, the permittee shall submit a Traffic Control Plan for review and approval to undertake and carry out the encroachment or excavation authorized by such permit in accordance with the provisions of the current Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) and/or any additions or modifications thereto now or hereafter adopted in Title 18R of this code.

(Ord. 1928 §2 (part), Ord. 2615 § 11)

A. Security Requirements. Except as hereinafter provided by this chapter, no permit shall be issued pursuant to the provisions of this chapter which authorizes construction or excavation work within a public right-of-way or public service easement unless and until the permittee has obtained and provided to the city a surety bond or other security guaranteeing performance by permittee of all of permittee’s duties and obligations under such permit including, in particular, the duty and obligation to restore the site of the construction or excavation work to the same condition as it was in prior to commencement of the construction or excavation work, or such modified condition as has been approved by the director.

B. Amount of Security. The surety bond or other security obtained and provided by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter authorizing construction or excavation work on or within a public right-of- way or public service easement shall be in the amount of at least $10,000.00; except that where the director determines that the work performed pursuant to such permit is extensive and would expose the city to costs substantially in excess of $10,000.00 to remedy any breach by the permittee in the permittee's duties and obligations to restore the public right-of-way or public service easement to the same condition as it was in prior to the commencement of the construction or excavation work or such modified condition as approved by the director, then the surety bond or other security shall be in an amount which the director determines is necessary to fully cover the city's exposure to all such costs.

C. Form of Security. The surety bond obtained and provided by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter authorizing an encroachment or excavation within a public right-of-way or public service easement shall be conditioned on the permittee’s compliance with all requirements of this chapter, including all orders of the director pertaining thereto, and shall otherwise be in a form approved by the city attorney. In lieu of a surety bond, a permittee may obtain and provide to the city a cash deposit, certificate of deposit naming the city as the payee thereof or such other kind of security acceptable to the city's risk manager, provided such cash deposit, certificate of deposit or the security is accompanied by an agreement stating that the security is being pledged to guarantee performance of the permittee’s duties and obligations under the permit issued to permittee pursuant to this chapter, which pledge agreement shall also be in a form approved by the city attorney.

(Ord. 1928 §2 (part), Ord. 1992 §6, Ord. 2364 §131)

Where a permit is issued pursuant to the provisions of this chapter which authorizes construction or excavation work within a public right of way or public service easement to be undertaken and performed by a person who owns property adjoining that portion of the public right-of-way or public service easement in which the work is to be performed, the surety bond or other security requirements of this chapter shall be waived.

(Ord. 1992 §7)

As a further condition of the issuance of a permit required by this chapter which authorizes construction or excavation work within a public right-of-way or public service easement, the permittee shall design, undertake and complete such work in the following manner:

A. All public improvements constructed or installed within a public right-of-way pursuant to such permit shall be designed, constructed and installed in accordance with the design criteria and improvement standards adopted in Title 18R of this code.

B. Upon the commencement of construction or excavation work authorized by such permit, such work shall be prosecuted with due diligence and in a manner that does not obstruct or interfere with a public street, public utilities or other facilities located within a public right-of-way or public service easement any more than is absolutely necessary.

C. Upon completion of construction or excavation work authorized by such permit, the public right-of-way or public services easement in which such work was performed shall be restored to the same condition as it was in prior to commencement of the work or such modified condition as has been expressly approved by the director, and all surplus soils or waste materials removed from the public right-of-way or public service easement shall be deposited or disposed of in a manner that complies with applicable federal, state and city laws and regulations. All final asphalt or concrete restoration joints shall not be in a wheel path and approved by the City. All restoration within 2 feet of another required restoration areas shall be joined together as one, asphalt or concrete. Any excavations within 2 feet of existing lip of gutter shall be restored to lip of gutter. The pavement surface shall be fully restored within 30 days of the cut, unless otherwise stipulated as a special condition.

D. At the conclusion of construction or excavation work authorized by such permit, the permittee shall file with the director such “as-built” plans and specifications as may be required by the director depicting any new improvements or facilities or any modifications to existing improvements or facilities which were constructed or installed in the public right-of-way or public service easement pursuant to such permit.

(Ord. 1928 §2, Ord. 2364 §132, Ord. 2615 § 12)

When acting on a permit required by this chapter, the director may condition the issuance of such permit on compliance with any special requirements which the director determines are necessary in order to ensure that such encroachment or excavation will be carried out in a manner that does not threaten the safety of persons or property and in a manner that will not unreasonably interfere with the use by the city or general public of any public right-of-way or public service easement and/or any public or private property adjoining or in the neighborhood of the public right-of-way or public service easement in which the encroachment or excavation is to be made.

(Ord. 1928 §2, Ord. 2364 §133)

A. Determination of Director to Order Work to be Stopped. Whenever the director determines that an encroachment or excavation made within a public right-of-way or public service easement pursuant to a permit issued in the manner provided by this chapter has been undertaken or is being carried out in a manner which threatens the public safety, unreasonably interferes with the use of such public right-of-way or public service easement or any property adjoining and in the neighborhood thereof, or damages or threatens to damage other facilities located within the public right-of-way or public service easement in a manner not authorized by the permit, the director may, by service and posting of the notice required by this section, order such work to be stopped.

B. Service of Notice of Order to Stop Work. Upon determining to order the stoppage of work undertaken or being carried out pursuant to a permit issued in the manner provided by this chapter, the director shall cause a written notice of such order to be served on the person to whom the permit was issued and on any person known to the director to be engaged in such work if such person is someone other than the person to whom the permit was issued. In addition to setting forth the order of the director to stop work, such notice shall contain a brief description of the reasons why such work is being ordered stopped and the action, if any, which may be taken in order that the work may be resumed; shall contain a statement of the right of the person to whom the permit was issued to apply for administrative review of the order and to appeal the order in the manner provided by this chapter, and shall advise the person upon whom the notice is served that unless authorized by the director, any further work performed pursuant to such permit may subject such person to the misdemeanor penalties hereinafter provided for in this chapter.

C. Posting of Order to Stop Work. Upon determining to order the stoppage of work undertaken or carried out pursuant to a permit issued in the manner provided by this chapter, the director shall also cause a written notice of such order to be posted in a conspicuous place within the public right-of-way or public service easement in which such work is being performed. In addition to setting forth the order of the director to stop work, such notice shall state that it is a misdemeanor for such person to perform any further work without authorization of the director or to remove or deface the posted notice of such order.

D. Effect of an Order to Stop Work. No person served with a notice of the director to stop work undertaken or carried out pursuant to a permit issued in the manner provided by this chapter shall cause or permit such work to be performed.

(Ord. 1928 §2, Ord. 2364 §134)

A. Determination by the Director to Order the Revocation of a Permit. Whenever the director determines that an encroachment or excavation made within a public right-of- way or public service easement pursuant to a permit issued in the manner provided by this chapter has been undertaken or is being carried out in a manner that violates the terms and conditions of such permit or that the permit was issued based on a permit application or plans and specifications which contained a material misrepresentation of fact, the director, may, by service of the notice required by this section, order the revocation of the permit.

B. Service of Notice of Order Revoking a Permit. Upon determining to order the revocation of a permit issued in the manner provided by this chapter, the director shall cause written notice of such order to be served on the person to whom the permit was issued. In addition to setting forth the order of the director revoking such permit, such notice shall contain a brief description of the reasons why the permit is being revoked and shall contain a statement of the right of the person upon whom the notice is served to apply for administrative review of the order and to appeal the order in the manner provided by this chapter.

C. Effect of Order Revoking a Permit. A person served with a notice of the order of the director revoking a permit issued pursuant to the provisions of this chapter shall promptly terminate the encroachment or excavation authorized by such permit and restore the public right-of-way or public service easement in which such encroachment or excavation was undertaken or carried out to the same condition as it was in prior to commencement of the encroachment or excavation, or such modified condition as may be approved by the director.

(Ord. 1928 §2, Ord. 2364 §135)

A. Determination of the Director to Perform Removal and Restoration Work. Where the director determines that an encroachment or excavation has been made in a public right-of-way or public service easement without a permit required by this chapter, in violation or contrary to the terms and conditions of a permit or order issued pursuant to this chapter, or in any manner that endangers the safety of persons or property, the director may remove such encroachment, refill such excavation and/or restore such public right-of-way or public service easement to the same or substantially the same condition as it was in prior to commencement of such encroachment or excavation, all for the account of and at the cost of the permittee or other person having made the encroachment or excavation, after service of any notice required by this chapter.

B. Service of Notice of Intent to Undertake Removal and/or Restoration Work. Upon determining to remove an encroachment, refill an excavation and/or perform restoration work in a public right-of-way or public service easement, the director shall cause written notice of such determination to be served on any person having undertaken the encroachment or excavation pursuant to a permit issued in the manner provided by this chapter. In addition to setting forth the intent of the director to perform such work, such notice shall set forth the reasons for undertaking such work and shall state that the permittee shall be liable for the full cost thereof. The director shall cause written notice of such order to be served on the surety as per the terms of the surety bond. Except where the work to be performed by the director is necessary to remove or remedy the condition which threatens the safety of life or property, such notice shall also offer to the permittee the right to immediately undertake such work, at the permittee's sole cost and expense, provided the work is completed by the permittee within a reasonable time as determined by the director and set forth in the notice.

C. Liability for Cost of Removal or Restoration Work. Any permittee or other person having caused the encroachment or excavation which results in the performance of removal or restoration work by the director in the manner provided by this section shall, upon completion of such removal or restoration work, be liable to the city for the full cost thereof. In addition, where a surety bond or other security has been provided to the city as a condition of a permit authorizing construction or excavation work within a public right-of-way or public service easement, such surety or other security shall be liable to the city for the cost of such work to the full amount of the surety bond or other security.

(Ord. 1928 §2 (part, Ord. 2364 §136, Ord. 2615 § 13)

Any violation of the provisions of this chapter shall be an infraction which is punishable by a fine in an amount provided for by Section 1505 of the Charter of the City of Chico; except that a violation of an order revoking a permit, or an order to stop work or the removal or defacement of a notice of such order posted by the director in the manner provided by this chapter shall be a misdemeanor punishable by imprisonment in the county jail for a period not to exceed six months or by a fine not exceeding one thousand dollars or both.

Additionally, failure to comply to Chapter 14.08 of the City Municipal Code or the general conditions of an issued encroachment permit will be considered a violation of the issued encroachment permit. City of Chico Municipal Code Chapter 1.15 provides for the issuance of administrative citations, the levying of fines, and an administrative review process. A copy of the Administrative Citation Fine Schedule is available in the City's Finance Office or online at http://www.chicoca.gov.

(Ord. 1928 §2 (part), Ord. 2136 §8, Ord. 2364 §137, Ord. 2615 § 14)