Chino Municipal Code Ch. 12.02 Protection of Interests Within the Public Right-of-Way

Footnotes:

--- (1) ---

Editor's note— Ord. No. 2023-020, § 1, adopted Nov. 21, 2023, repealed the former Ch. 12.02, §§ 12.02.010—12.02.100, and enacted a new Ch. 12.02 as set out herein. The former chapter pertained to protection of the public right-of-way and derived from Ord. 2001-08 § 1(part), 2001; Ord. 2001-09 § 1(part), 2001; and Ord. No. 2017-002, § 1, adopted Feb. 7, 2017.

A. The primary purpose of this chapter is to protect the life and property of the public, as well as the interests, rights and property of the city, from the impacts of encroachments within the public right-of-way. The secondary purpose of this chapter is to ensure that encroachments are conducted in accordance with the provisions of this chapter, the code and all other applicable laws and regulations, and to ensure that those who encroach in the public right-of-way are required to mitigate all adverse impacts of their activities on life, interests, rights and property, including those belonging to the city.

B. In order to effectuate the purposes of this chapter, the director is vested with the authority and discretion to implement the provisions of this chapter, the code and all other applicable laws and regulations.

(Ord. No. 2023-020, § 1, 2023.)

The following words or terms shall have the meanings described below:

A. "City" means the City of Chino and its employees, officers, officials, and contractors.

B. "Code" means the Chino Municipal Code.

C. "Director" means the director of public works or development services or their designee.

D. "Emergency repairs" means those repairs that are necessary when a vital infrastructure service has been damaged, compromised, or has failed resulting in a loss of service or constituting a hazard to public safety.

E. "Encroach" means to engage in or cause an encroachment.

F. "Encroachment" means any of the following activities conducted within the public right-of-way or on private property in a way that impacts the right-of-way:

1. Construction, demolition, alteration, excavation, grading, resurfacing, repair, or other related work.

2. Installation, removal, or modification of any structure or improvement.

3. The placement of any obstruction or traffic control device, whether permanent or temporary.

"Encroachment" does not include routine maintenance activities along property frontage, such as the maintenance of private landscaping.

G. "Encroachment permit" means a permit to encroach issued by the director pursuant to this chapter.

H. "Person" means any person or entity.

I. "Public right-of-way" means any and all property, or any other right or interest in property, that the city owns, possesses, controls or regulates, which is used or maintained, or can be used or maintained, to carry, convey, transmit or transport any commodity, electricity, gas, information, oil, signal, storm water, wastewater, water or any other thing, service or substance. The term "public right-of-way" also means any condition, grade, facility, improvement or structure of any kind including, without limitation, any cable, camera, culvert, curb, drain, gutter, light, median, planting, pole, pipe, pump, sewer line, sidewalk, sign, signal, street, storm drain, valve, water line, well, or wire located within any land owned, possessed, controlled or regulated by the city.

J. "Stop work order" means an order issued by the director demanding immediate cessation of an encroachment.

K. "Within" means above, from, in, of, on, over, through, to and under.

(Ord. No. 2023-020, § 1, 2023.)

A. No person shall encroach within the public right-of-way without first obtaining an encroachment permit or another permit allowing the encroachment under this code.

B. The director is authorized and instructed to impose any and all conditions on each encroachment permit necessary to effectuate the purposes of this chapter, as stated in Section 12.02.010, and to assure compliance with the provisions of the code and all other applicable laws and regulations. The director may promulgate guidelines as necessary to effectuate and interpret this chapter.

C. Any person who fails to obtain an encroachment permit when required, or to comply with the terms and conditions of such permit, shall immediately cease any encroachment activity regardless of whether a stop work order has been issued by the city.

(Ord. No. 2023-020, § 1, 2023.)

A. All persons seeking an encroachment permit shall submit an application for an encroachment permit to the director.

B. The application required for an encroachment permit shall require submittal of all information reasonably necessary for the issuance of an encroachment permit as determined by the director, including, without limitation, the following:

1. The name, address and telephone number of the applicant;

2. A description of the nature, location and duration of the proposed encroachment;

3. The plans and specifications for the proposed encroachment, which shall require the director's approval prior to the issuance of an encroachment permit;

4. The name, address and phone number of the on-site representative of applicant who is authorized to act on behalf of the applicant to accept a "demand for compliance" and "stop work order;" and

5. A letter of authorization from the applicant if the permit is being obtained on behalf of another person.

C. The director may also require an applicant to provide the following as part of the application if the director determines that such information is necessary in order to properly assess the risks of a proposed encroachment or to adequately mitigate the impacts and effects of a proposed encroachment:

1. Studies, paid for by the applicant, demonstrating the effects, damages, and risks to life and property of the proposed encroachment; and

2. Proposals, including agreements, to mitigate the effects, damages, and risks to life and property of the proposed encroachment.

D. The application shall contain the following statement that shall be read and signed by the person requesting an encroachment permit:

"I _______, hereby apply for an Encroachment permit pursuant to the provisions of Chapter 12.02 of the Chino Municipal Code. I have received and read Chapter 12.02 of the Chino Municipal Code and I understand the requirements imposed upon me or my company and my agents, employees, contractors and suppliers. I understand that any violation of Chapter 12.02 may result in the issuance of a "Demand For Compliance" requiring me to comply with Chapter 12.02 and the directives of the Director of Public Works or Development Services within 24 hours unless I am able to satisfy said Director that such compliance is not required. I further understand that any violation of Chapter 12.02 may result in the issuance of a "Stop Work Order" requiring my project to be halted for an unspecified period of time and the suspension or revocation of any other permit issued to me by the City of Chino for this project. I further understand that any violation of Chapter 12.02 or the terms or conditions of the encroachment permit constitutes a misdemeanor and a public nuisance subject to all penalties and remedies under Chapters 1.12 and 1.15 of the Chino Municipal Code, in addition to potential suspension or revocation of the encroachment permit. Finally, I understand and agree to compensate the City of Chino and any other party for all costs to restore any and all damage to the public right-of-way, other city property, and other life or property, and for all remediation costs of all environmental damage caused, directly or indirectly, by my acts or omissions as required by Chapter 12.02 of the Chino Municipal Code. DATED:_______ By: _______"

(Ord. No. 2023-020, § 1, 2023.)

A. Each applicant for an encroachment permit shall pay a fee, as determined by resolution of the city council, to reimburse the city for the cost of all staff time and administrative expenses necessary to process the application for an encroachment permit, including such costs and administrative expenses for plan checking, engineering, inspection and any costs of necessary construction by city forces or contractors.

B. Each applicant seeking an encroachment permit shall furnish evidence of insurance in an amount determined by the director to be sufficient to protect life and property and city property including the public right-of-way from any damage or risk of harm potentially resulting from the encroachment.

C. Each person or entity shall deposit security with the city, as a condition of issuance of an encroachment permit, in an amount determined by the director to be sufficient to afford security for life and property, to repair or restore any property including the public right-of-way, and to assure compliance with all applicable laws and regulations, except that the director may exempt any public utility company regulated by the public utilities commission or municipal corporation. Any such security may be in the form of a cash deposit, bond or letter of credit. Such security may be utilized by the city to repair or restore any damage to property including the public right-of-way to a like or a better condition than existed prior to the issuance of such encroachment permit, or conform to the requirements of any condition of the encroachment permit.

D. The director may require an applicant to pay damages to the city or other person or entity who sustains or will sustain damage due to the applicant's encroachment as a condition of the issuance of an encroachment permit.

(Ord. No. 2023-020, § 1, 2023.)

A. After submission of a completed application for an encroachment permit, the director shall take one of the following actions:

1. Deny the encroachment permit, in whole or in part; or

2. Issue the encroachment permit with conditions necessary to protect life and property, and to guarantee compliance with this chapter, the code and all other applicable laws and regulations for the duration of the encroachment.

B. Each encroachment permit issued to an applicant by the director shall define and limit the nature, scope and duration of the encroachment.

C. Unless otherwise specified, encroachment permits are valid for ninety days from the date the permit is issued. Every permittee shall complete the work within the time required by the permit. The director may grant a time extension at his or her discretion. The permittee shall submit an application for an extension and pay an administrative fee prior to the expiration of the encroachment permit.

(Ord. No. 2023-020, § 1, 2023.)

A. All persons encroaching within the public right-of-way shall protect all life and property from any damage or any risk of harm that may be caused by such encroachment. This duty shall continue for the full duration of the encroachment.

B. All persons encroaching within the public right-of-way who, directly or indirectly, cause any damage, interference, or obstruction to city or private property shall restore such property to a like or better condition that existed prior to the damage, interference or obstruction, to the satisfaction of the director.

C. Any person who fails to restore the public right-of-way, or such interests, rights or property belonging to the city or private property to the satisfaction of the director shall be liable for all costs to restore same and for reasonable attorney's fees and expert witness fees in the event litigation or other legal action is required to collect such costs.

D. All persons shall comply with the requirements of this code and all applicable state and federal laws and regulations prior to and following the issuance of an encroachment permit.

(Ord. No. 2023-020, § 1, 2023.)

Pavement cutting and excavation within the city shall be prohibited as follows:

A. After any street has been constructed, reconstructed, or paved by the city, under a city contract, or under a permit, no pavement cutting or excavation will be permitted for a period of five years after the city determines the construction has been completed. This will include asphalt overlays, pavement reconstruction/rehabilitation, and new pavement construction. After any street has been slurry sealed by the city, under a city contract, or under a permit, no pavement cutting or excavation will be permitted for a period of three years after the city determines the construction has been completed.

B. The director or city engineer may grant exemptions to this prohibition in order to facilitate new development on adjacent properties, provide for emergency repairs to subsurface facilities, provide for underground service connections to adjacent properties, or allow the upgrading of underground utility facilities.

C. When an encroachment permit for pavement cutting is granted by the director or city engineer, all restoration and repair work shall be completed in accordance with the city's street/alley resurfacing policy for streets/alleys under moratorium. This policy may be adopted and updated by the director from time to time as deemed necessary by the director.

(Ord. No. 2023-020, § 1, 2023.)

As a condition of each encroachment permit, the permittee shall comply with and be bound by the city's road closure permit policy.

(Ord. No. 2023-020, § 1, 2023.)

Prior to the start of the work authorized by the encroachment permit, each applicant shall obtain an inquiry identification number from the Regional Notification Center for Underground Center Alert of Southern California, pursuant to the Government Code Sections 4216 through 4217.

(Ord. No. 2023-020, § 1, 2023.)

Upon any violation of the provisions of this chapter or the terms and conditions of an encroachment permit, the director may serve a "demand for compliance" upon the applicant to whom an encroachment permit has been issued, or its on-site representative, demanding compliance with such requirements within twenty-four hours after personal service of such demand for compliance or seventy-two hours after the date of mailing by the city. The demand for compliance shall include the following information:

A. The name of the applicant;

B. The encroachment permit number;

C. The nature and location of each violation;

D. The time and place for applicant to meet and confer with the director prior to the time and date set for compliance, for the purpose of determining whether such compliance is necessary.

(Ord. No. 2023-020, § 1, 2023.)

A. In the event that the applicant to whom the encroachment permit has been issued fails to comply with the "demand for compliance" or to meet and confer with the director to secure a determination that such compliance is not necessary prior to the time set for compliance in the demand for compliance, the director may issue a "stop work order" to the applicant prohibiting any further encroachment activity that fails to comply with the provisions of this chapter or the terms and conditions of the encroachment permit, or reasonably appears to have caused any damage or obstruction within the public right-of-way or private property, or has imperiled or is reasonably likely to imperil life, safety or property, or imperils compliance with any other applicable law or regulation, including this code. Further, the director may suspend or revoke the encroachment permit pursuant to the provisions of this chapter, and the city building official may suspend or revoke any building permit for the same activity for which an encroachment permit has been issued. In such event, the city building official shall follow the procedures provided by the city-adopted California Building Code.

B. The director may also issue a stop work order to any other person for any violation of this chapter with or without a "demand for compliance" having been issued.

C. Stop work orders will be posted at the work site and, if reasonably possible, will be personally served on the applicant for the encroachment permit or another person who appears to be in charge of the work; provided, that failure to personally serve the stop work order will not invalidate the stop work order.

D. Upon posting of a stop work order, all activity related to the encroachment that is subject to the stop work order shall immediately cease. The effective date of the stop work order shall be the date it is posted by the city.

E. Causing, allowing or permitting activity in violation of a stop work order shall constitute a violation of this code.

F. No person shall remove or deface a stop work order, or allow or cause such to occur.

G. A stop work order shall be a cumulative remedy, and may be used in lieu of, in conjunction with, or in addition to any other remedy provided by this code, including permit suspension or revocation proceedings pursuant to this chapter.

(Ord. No. 2023-020, § 1, 2023.)

A. Permanent structures shall not be constructed within a city utility easement, or in a manner that otherwise interferes with city access to a city utility easement, unless approved in writing by the director or city engineer. Any structure constructed in violation of this section shall constitute a nuisance and may be abated in accordance with the provisions of Chapter 8.50 of this code or as otherwise provided by law.

B. The director, in his or her sole discretion, may permit the owner of any property to construct a fence or wall or other improvement within portions of the right-of-way adjacent to the property where future street widening or other frontage improvements are anticipated but are not yet required by the city. Prior to the construction of such private improvements in the right-of-way, the owner of the adjacent property shall enter into an agreement with the city, in a form approved by the city attorney, which shall be recorded against the private property and run with the land and be binding on future owners, and which shall state the conditions under which the improvement shall be removed, who is responsible for the removal and the cost of removal, and the required timing of the removal. If the property owner is required to remove the improvement but does not do so, the city may remove the improvement and assess the costs of such removal as a lien against the property.

(Ord. No. 2023-020, § 1, 2023.)

A. Determination by the director to suspend or revoke a permit. Whenever the director determines that work performed under a permit issued pursuant to this chapter has been undertaken or is being carried out in a manner that violates the terms or conditions of the permit, violates any term of an agreement with the city, violates this chapter or this code, is in violation of a stop work order issued by the city, or that the permit was issued based on an application or plans and specifications that contained a material misrepresentation of fact, the director may suspend or revoke the permit pursuant to this section.

B. Notice of order suspending or revoking a permit. Upon determining to order the suspension or revocation of a permit issued under this chapter, the director shall cause written notice of such order to be served on the permittee in the manner provided in this section. In addition to setting forth the order of the director suspending or revoking the permit, such notice shall contain a brief description of the reasons why the permit is being suspended or revoked, if applicable, the duration of the suspension and conditions to reinstatement, and shall contain a statement that the permittee has the right to appeal the order in the manner provided by this chapter.

C. Method of service on a permittee. Any notice required by this chapter to be served on a person applying for or issued a permit under this chapter, including but not limited to a stop work order, shall be served by personal delivery or first class mail sent to the address set forth on the permit application, unless the person has provided the director with written notice of a change of address. Service shall be deemed completed on the date it is properly addressed and deposited in the mail, or personally delivered.

D. Method of service on other persons. Any notice required by this chapter to be served on a person who has not applied for or obtained a permit under this chapter, including but not limited to a stop work order, shall be served by personal delivery or first class mail sent to the person's last known address. Service shall be deemed completed on the date it is properly addressed and deposited in the mail, or personally delivered.

E. Effect of order suspending or revoking a permit. A permittee served with a notice of the order of the director suspending or revoking a permit issued under this chapter shall promptly terminate the encroachment or other work authorized by the permit, and restore the public right-of-way or other city property or easement in which such encroachment or other work was undertaken or carried out to the same condition as it was in prior to commencement of the encroachment or other work, or such modified condition as may be approved by the director.

(Ord. No. 2023-020, § 1, 2023.)

Any recipient of a stop work order, or suspension or revocation of an encroachment permit, may appeal the order, suspension, or revocation by filing a written appeal with the city clerk within ten calendar days of the date the order, or notice of suspension or revocation, is served. The appeal must show cause why the stop work order should not have been issued, or why the permit should not have been suspended or revoked. The city manager, or designee, shall set a hearing date on the appeal not more than ten calendar days from receipt of the written appeal and shall give the appellant notice of the hearing date through the method of service provided in Section 12.02.140. The decision of the city manager, or designee, on the appeal shall be final. The failure to file a timely and complete appeal as required herein shall constitute a waiver of all rights to appeal and a failure to exhaust administrative remedies. The submittal of an appeal shall not stay the stop work order, or suspension or revocation of an encroachment permit.

(Ord. No. 2023-020, § 1, 2023.)

A. A violation of this chapter constitutes a misdemeanor, punishable pursuant to Chapter 1.12 (General Penalty), at the discretion of the city prosecutor, as well as by administrative citation and fine, at the discretion of the city, pursuant to Chapter 1.15 (Administrative Fines).

B. A violation of this chapter constitutes a public nuisance that may be abated, restrained or prevented by any means authorized by law, including injunctive relief.

C. Violation of any term of an agreement entered into with the city pursuant to this chapter shall also constitute a violation of this chapter, and shall be subject to the provisions of this section.

D. Each day a violation of this chapter continues constitutes a separate and distinct violation.

E. The remedies provided in this chapter are intended to be cumulative. Nothing in this chapter shall be deemed to prevent the city from utilizing any remedy in addition to, or in lieu of, any other remedy.

(Ord. No. 2023-020, § 1, 2023.)