Del Mar Municipal Code Ch. 23.28 Encroachment Permits

The City of Del Mar holds interests in various properties, including rights-of-way and easements granted to the City for utility, roadway and trail purposes. The City Council is the custodian of that public property. The standards and procedures contained in this Chapter have been adopted to protect public property, to protect public health and safety and to provide for the general welfare of the community, including the preservation of Del Mar's aesthetic qualities. Individuals, businesses and agencies frequently request permission to work in or use public property, either as a long-term encroachment or a short-term encroachment. This Chapter regulates the manner in which encroachments onto City property are to be reviewed and the conditions that may be attached to such authorizations. All encroachments onto public areas are expressly revocable at any time at the sole discretion of the City Council or its agents.

(Ord. No. 444; Ord. No. 482; Ord. No. 746; Ord. No. 761)

Unless specifically defined below, words or phrases used in this Chapter shall be interpreted so as to give them the meaning they have in common usage and to give this Chapter its most reasonable application.

A. City Right-of-Way or Easement shall mean any real property interest granted to the City for roadways, pathways, open space or conservation, or for the installation or maintenance of utilities.

B. Director shall mean the Director of Planning and Community Development or his/her designee.

C. Encroachment shall mean development or use of any portion of a City Right-of-Way or Easement in a manner other than its intended use. Encroachment shall include, but not be limited to, any of the following:

1. Erecting or maintaining any structure, flag, banner, post, sign, pole, fence, guard-rail, wall, loading platform, mailbox, pipe, conduit, irrigation, or wire on, over, or under a City Right-of-Way or Easement;

2. Planting of any tree, shrub, grass or other growing thing within a City Right-of-Way or Easement;

3. Placing or leaving on a City Right-of-Way or Easement any rubbish, brush, earth, or other material of any nature whatsoever;

4. Constructing, placing, or installing any pathway, sidewalk, driveway, curb, gutter, paving, or other surface or subsurface drainage structure or facility, any pipe, conduit, wire or cable on, over, under, or within a City Right-of-Way or Easement;

5. Performing tree trimming or tree removal in any City Right-of-Way or Easement;

6. Constructing, placing, planting, or maintaining any structure, embankment, excavation, or development adjacent to a City Right-of-Way or Easement which causes or will cause an Encroachment;

7. Positioning of any equipment or machinery or moving any over-sized load on or over any City Right-of-Way or Easement;

8. Grading, trenching or change of elevation of the surface of a City Right-of-Way or Easement;

9. Placement of any barrier, sign, detour, post or bollard so as to change the flow of vehicular or pedestrian traffic in a City Right-of-Way or Easement.

D. Encroachment Permit shall mean a permit issued by the City for either a Minor or Major Encroachment.

E. Long-term Improvement shall mean any improvement designed to or having a permanent appearance and intended for use for a period of 365 days or more.

F. Major Encroachment shall mean placement of any improvement that projects, in whole or in part, onto a City Right-of-Way or Easement in a manner to extend above the level of the sidewalk, roadway or adjacent grade. Examples of Major Encroachments include, but are not limited to: structures or portions thereof, balconies, cornices and other architectural projections, awnings, below grade vaults, earth-retaining structures extending 12 inches or more in height above the adjacent grade, planter boxes, ramps, fences or walls, curbs extending 12 inches or more in height above the adjacent grade. "Major Encroachment" shall also mean any activity that will cause a marked change in the manner in which a City Right-of Way or Easement will be used or will function.

G. Minor Encroachment shall mean any Encroachment onto a City Right-of-Way or Easement resting on grade or a paved surface but which is not structurally attached to any building. Examples of Minor Encroachments that constitute Long-term Improvements include, but are not limited to: driveway aprons, pathways and walkways, and vegetation. Minor Encroachment shall also mean any short-term Encroachment that will interfere, even on a temporary basis, with the public's use of a City Right-of-Way or Easement. Examples of short-term, Minor Encroachments include, but are not limited to: the placement of trash dumpsters, haul routes for relocation of earth, the positioning of heavy equipment, storage of materials and tree trimming or removal. Any Encroachment which is not deemed a Minor Encroachment pursuant to the provisions of this Chapter shall be deemed a Major Encroachment.

H. Permittee shall mean any person(s) firm, company, corporation, association, public agency, public utility, or organization which has been issued an Encroachment Permit by the City.

I. Short-term Impact shall mean an activity not resulting in a permanent change in the condition or appearance of a City Right-of-Way or Easement and which is intended for use for a period of less than 365 days.

(Ord. No. 919, § 1, 10-17-2016)

A. It shall be unlawful for any person to construct, maintain or place any Encroachment without complying with the terms of this Chapter.

B. Except as provided in this Chapter, no Major or Minor Encroachment shall be allowed except in compliance with the terms of this Chapter.

C. The Director shall determine the classification of a Major Encroachment vs. a Minor Encroachment and a Long-term Improvement versus a Short-term Impact and the corresponding permit requirements.

D. A separate Encroachment Permit shall be obtained for each Encroachment, except that where an applicant is proposing multiple Encroachments to be installed or carried out simultaneously, the multiple Encroachments may be combined for processing under one application. Similarly, an applicant for both a Major Encroachment Permit and a Minor Encroachment Permit may request that the applications be combined for processing as a Major Encroachment Permit.

(Ord. No. 919, § 2, 10-17-2016)

A. Proposed Encroachments shall generally be designed to comply with the zoning requirements applicable to the adjacent private property.

B. The following Encroachments are specifically prohibited:

1. Construction or placement of any fill, wall, pipe, column, pole, fence, tree, shrub or other thing which would obstruct and/or reduce the capacity of any watercourse to carry storm water;

2. Installation or maintenance of signs or sign supports inconsistent with the Sign Encroachment Permit process contained in DMMC Chapter 30.84;

3. Any Encroachment that would convey an impression or appearance that the encroached upon area is owned by or reserved solely for the private use of the adjacent property with no associated public benefit to the community;

4. Any Encroachment that would create a trip hazard or other impediment that would interfere with safe pedestrian passage; and

5. Any Encroachment that would create an unsafe line of sight for pedestrians or motorists.

(Ord. No. 919, § 3, 10-17-2016)

A. No Encroachment Permit shall be required for the following activities/development:

1. Mailboxes installed in accordance with the rules and regulations at the United States Post Office Department, and provided that no mailbox deemed exempt under this Section shall be placed so as to endanger the life or safety of the traveling public and provided that the mailbox, at no point, exceeds a height of 50 inches or a width/depth of 20 inches;

2. Newspaper racks installed and maintained in accordance with the DMMC;

3. Vegetation, which, at the time of installation or at maturity, will not exceed a height of 30 inches and which will not change nor interfere with existing traffic flows, traffic sightlines, or parking patterns (Note that the installation of irrigation lines is not exempt from the requirement for receipt of an Encroachment Permit);

4. Placement of trash barrels and bins for collection, provided the placement complies with the regulations for time and location of placement as specified in the DMMC; or

5. Cleaning and maintenance normally associated with the ongoing care of adjacent private property.

B. The provisions of this Chapter shall not apply to:

1. City employees engaging in City-related activities; or

2. Public utilities operating under a valid franchise agreement, provided all requirements imposed through the franchise agreement, applicable State law or regulation have been complied with and provided the Public Utility has notified and gained prior authorization from the City's Public Works Director.

A. An application for an Encroachment Permit shall include the following materials:

1. An application fee, as set forth by resolution of the City Council;

2. An application, on a form provided by the City, along with such information and drawings as required by the Director to accomplish the purposes of this Chapter; and

3. When deemed necessary by the Director, a set of Public Improvement Plans for the improvements proposed within a City Right-of-Way or Easement. Where required, such Public Improvement Plans shall be prepared and stamped by a registered civil engineer, shall include design calculations and shall be of a form and content acceptable to the Director.

B. The required application shall be filed with the Department of Planning and Community Development. The application shall be routed to each City Department, as deemed appropriate by the Director, for comment and suggested conditions. After receipt of comments and suggested conditions, the Director shall make a recommendation to the City Manager.

C. Encroachments that are determined to require a Major Encroachment Permit shall be placed on the first available agenda of the City Council.

(Ord. No. 919, § 4, 10-17-2016)

Editor's note— Ord. No. 919, § 4, adopted October 17, 2016, changed the title of Section 23.28.060 from "Issuing authority and application procedure for a major encroachment permit" to "How to apply for an encroachment permit."

A. A decision on an application for a Minor Encroachment Permit shall be made by the City Manager in accordance with DMMC Section 23.28.070C. The decision may be appealed to the City Council in accordance with DMMC Section 23.28.110.

B. A decision on an application for a Major Encroachment Permit shall be made by a majority vote of the City Council in accordance with DMMC Section 23.28.070C.

C. An Encroachment Permit, Minor or Major, may be approved or conditionally approved only if the decision maker makes all of the following findings:

1. The proposed Encroachment will not endanger the public health, safety, or welfare, or the surrounding property;

2. The proposed Encroachment will not unreasonably interfere with the intended use of a City Right-of-Way or Easement;

3. The proposed Encroachment will not have an adverse impact on the welfare of the community or on the community's appearance or aesthetics;

4. The proposed Encroachment will not cause an unnecessary change in the character of the community; or

5. The proposed Encroachment will not be a detriment to the interests of the general public; and

6. The proposed Encroachment will not convert significant areas of public property to private use.

D. The decision maker may impose conditions of approval on the Encroachment Permit as deemed necessary to protect the public health, safety and welfare and to preserve the intended use of the City Right-of-Way or Easement, and to ensure compliance with the findings supporting such approval.

(Ord. No. 919, § 5, 10-17-2016)

Editor's note— Ord. No. 919, § 5, adopted October 17, 2016, changed the title of Section 23.28.070 from "Issuing authority and application procedure for a minor encroachment permit" to "Decision process for encroachment permits and findings for approval."

A. Notice for a Major Encroachment Permit application shall contain the date, place, and time set for the scheduled City Council review of the application for a Major Encroachment Permit. The required notice shall include all of the following:

1. The number assigned to the application;

2. A description of the proposed Encroachment and its location; and

3. A brief description of the purpose of the City Council review and of the review process.

B. Notice of an application for a Major Encroachment Permit shall be provided as follows:

1. Published once in a newspaper of general circulation within the City;

2. Mailed to all owners of real property within 300 feet of the location of the proposed Encroachment which is the subject of the review, with ownership as identified on County Tax Assessors' rolls; and

3. Posting at City Hall by staff; and at the site of the proposed Encroachment, using a notification card provided by the City.

C. Notice for a Minor Encroachment Permit application for an Encroachment which will constitute a Long-term Improvement, as defined in this Chapter, shall include all of the following:

1. The number assigned to the application;

2. A description of the proposed Encroachment and its location; and

3. A brief description of the purpose of the review process and of the process of appeal of the Manager's decision.

D. Notice of an application for a Minor Encroachment Permit which will constitute a Long-term Improvement, as defined in this Chapter, shall be provided as follows:

1. Mailed to owners of real property within 100 feet of the location of the proposed Encroachment which is the subject of the review, with ownership as identified on County Tax Assessors' rolls; and

2. Posting at City Hall by staff; and at the site of the proposed Encroachment, using a notification card provided by the City.

E. Notice of an Application for a Minor Encroachment Permit for a Short-term Impact, as defined in this Chapter, shall be posted at City Hall by staff on the date of the permit application.

(Ord. No. 919, § 6, 10-17-2016)

Editor's note— Ord. No. 919, § 7, adopted October 17, 2016, repealed the former Sections 23.28.090 and 23.28.100 in their entirety, which pertained to required fee and application materials, and standards of review for applications, respectively, and derived from original codification.

A decision made by the City Manager on an application for an Encroachment Permit may be appealed in accordance with the provisions of the DMMC, except that the appeal period for a Minor Encroachment Permit for a Long-term Improvement shall be ten working days from the date of the Manager's action and the appeal period for a Minor Encroachment Permit for a Short-term Impact shall be five working days from the date of the Encroachment Permit application.

(Ord. No. 919, § 8, 10-17-2016)

A. The Director and his/her designees are authorized to make inspections in connection with permits issued under this Chapter.

B. Within 72 hours of completion of the development or activity for which an Encroachment Permit has been issued, the Permittee shall notify the Director of such completion.

C. To cover the costs of the inspections authorized herein, the Permittee of an approved Encroachment Permit shall deposit with the City, a partially refundable inspection fee as set forth by resolution of the City Council. Upon satisfactory completion of the activity for which the Encroachment Permit was issued, as determined by the Director, 50 percent of the inspection fee shall be returned to the Permittee. The remaining 50 percent shall be retained by the City and used to cover the administrative costs of inspections.

A. As deemed necessary by the Director, the Permittee shall be required to place warning devices and barriers to protect the safe movement of vehicular and pedestrian traffic in the City Right-of-Way or Easement, in accordance with the provisions of the California Vehicle Code. The applicant may also be required to submit a Traffic Control Plan prepared by a certified Traffic Engineer.

B. By accepting an issued Encroachment Permit, the Permittee explicitly agrees to hold the City, its officers, and employees harmless from any liability, claims, suits or actions for any and all damages alleged to have been suffered by any person or property by reason of the Permittee's installation, operation, maintenance or removal of the Encroachment.

C. If deemed necessary by City's Finance Director to protect the public interest, the Permittee shall file a certificate of insurance naming the City of Del Mar as an additionally insured entity and showing evidence of coverage of bodily injury or property damage liability. The form and content of the certificate of insurance shall be to the satisfaction of the City's Finance Director.

D. All work authorized by an Encroachment Permit shall be performed by a licensed contractor. This requirement may be waived by the Director when the work to be performed is limited to minor improvements or maintenance for residential property adjacent to the City Right-of-Way or Easement and when the work will be performed by the resident or owner of the adjacent residential property.

E. The Permittee shall obey and enforce all safety orders, rules, regulations, and recommendations of the Department of Industrial Relations of the State of California, CAL-OSHA, applicable to the work and shall comply with all applicable laws, ordinances, codes, and regulations. Any omission on the part of the Director to specify protective measures or devices in the Encroachment Permit shall not excuse the Permittee from complying with all applicable requirements of law.

F. No trench shall be opened in any street for the purpose of laying pipes, conduits or ducts except when the prior written consent of the Director of Public Works has been obtained.

G. All excavations shall comply with the policies, standards and requirements established from time to time by the Director of Public Works for compaction, backfill and pavement restoration. The policies, standards and requirements may include different requirements for different types of excavations, taking into consideration relevant factors such as:

1. The location, type and extent of excavation performed;

2. The condition of the surface being excavated; and

3. The period of time elapsed since the construction or most recent resurfacing of the surface being excavated.

H. If any part of the work performed under an Encroachment Permit is not completed within the period indicated in either the submitted application materials or the conditions of approval of the Encroachment Permit, the Director of Public Works may notify in writing the person performing the work to complete the work within 48 hours thereafter, legal holidays excepted. If the work is not completed within this time period, the Director of Public Works shall have full power to perform the work, including such measures as will restore the disturbed area to a safe and passable condition until the work can be completed. The cost thereof, including any inspection and administrative overhead costs incurred by City, shall be assessed against the Permittee.

I. It shall be unlawful for any person to apply paint or other permanent marking substance to any paved surface or curbs, except for official traffic markings made or authorized by the City or its agents, markings of underground facilities in connection with construction or maintenance work, and numbers painted on curbs to identify an address.

J. When deemed appropriate by the Director, the applicant shall record a covenant against the deed for the property benefited by the approved Encroachment Permit setting forth the terms and conditions of the Permit, including the requirement for removal of the Encroachment upon demand by the City. The covenant shall run with the land and shall be binding on future owners and assigns. The form and content of the covenant shall be to the satisfaction of the Director.

K. By accepting an issued Encroachment Permit, the Permittee explicitly agrees that, upon notice from the City, the Encroachments authorized in the Permit shall be removed. All costs for removal of Encroachments shall be borne by the applicant or, where applicable, by the successor in interest.

A. As determined by the Director, the Permittee may be required to deposit with the City: cash, a certified or cashier's check, or an approved surety bond as sufficient to assure performance with any permit conditions regarding the manner of installation of the authorized Encroachment.

B. Any bond or cash deposit required pursuant to this Chapter shall be payable to the City. Upon satisfactory completion of all work authorized in the Permit, and fulfillment of all conditions of the Permit, the bond or cash deposit shall be released, save for any funds necessary to offset City costs in administering the bond or cash deposit or for any work performed by the City to satisfactorily complete the work authorized under the Permit.

C. Cash deposits or bonds shall not be required of any public utility or public agency which is authorized by law or franchise agreement to establish or maintain any works or facilities in, under or over any City Right-of-Way or Easement.

Encroachments that were constructed, installed or maintained without the receipt of an Encroachment Permit and which do not conform to the regulations of this Chapter shall be deemed illegal and non-conforming and may be subject to abatement as a nuisance. The City may remove the Encroachment at the responsible party's expense.

A. The period in which to begin work or commence an activity authorized under an approved Encroachment Permit shall be one year from the date of approval of the Encroachment Permit. If, in that one-year period, the Permittee has not commenced and completed substantial work on the authorized Encroachment, the Encroachment Permit shall expire.

B. A Permittee may request a single Extension of Time of an approved Encroachment Permit by submitting a written request to the City Manager setting forth the reason that substantial work on the Permit cannot be commenced by the scheduled expiration date. The City Manager shall grant the extension unless he/she determines that there has been a change in circumstances since the time of the original grant of the Permit which would create an inconsistency between the proposed Encroachment and the provisions of this Chapter. No extension shall be granted for a period greater than one year.

In the event that an Encroachment is required for the immediate protection of life or property and there is insufficient time to obtain an Encroachment Permit in accordance with the provisions of this Chapter, the person making the Encroachment shall, within two working days, apply for the required Permit.

A. Encroachment Permit applications are requests to work in or use public property on a temporary basis. At its sole discretion, the City may revoke any Encroachment Permit and demand the applicant or successor in interest to remove the Encroachment.

1. An Encroachment Permit may be revoked if the Permittee fails to comply with any of the provisions of this Chapter or any of the conditions set forth in the Encroachment Permit.

2. An Encroachment Permit may be revoked upon a determination by the City that a change of use or appearance of the City Right-of-Way or Easement on which the authorized Encroachment was located warrants removal of the Encroachment.

B. The notice of revocation shall be given in writing to the Permittee or successor in interest.

C. Upon the revocation of any Encroachment Permit, the City shall notify the Permittee or successor in interest of his/her responsibility to immediately remove the Encroachment and to repair any damage resulting therefrom to the satisfaction of the Director.

D. The cost for removal of Encroachments shall be borne solely by the Permittee or successor in interest.

Any monument of granite, concrete, iron, or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any public street or Right-of-Way, property subdivision, or a precise survey point or reference point shall not be removed or disturbed without first obtaining permission from the Director to do so. Replacement of any removed or disturbed monument will be at the expense of the Permittee.

Each Permittee installing, constructing, or maintaining underground facilities, such as pipes, wires, conduits, or similar structures under an Encroachment Permit granted pursuant to this Chapter may be required to maintain accurate and complete maps of location, depth, size, and character of such facilities, upon request, to furnish copies of said maps to the Director at no cost to the City.

A. By submittal of an application for and acceptance of an Encroachment Permit, the Permittee agrees to comply with and be bound by all sections, provisions, and references contained in this Chapter. It shall be unlawful for the Permittee to implement the authorized Encroachment in a manner that is not in accordance with the approved Encroachment Permit, including any conditions attached thereto.

B. All obligations, responsibilities, and other requirements of the Permittee shall be binding on successors in interest of the original Permittee and subsequent owners of property benefited by the granting of the Encroachment Permit, unless otherwise specified in the Encroachment Permit.

Any person violating any provisions of or failing to comply with any of the requirements of this Chapter shall be subject to the enforcement provisions set forth in DMMC Chapters 1.08 and 30.98.