Duarte Municipal Code Ch. 9.36 Excavations

As used in this chapter, "person" means any individual, firm, copartnership, joint adventure, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, syndicate, city, or any other group or combination acting as a unit, and the plural as well as the singular number.

(Ord. 58 § 1, 1959)

The term "shall" is mandatory. The term "may" is permissive.

(Ord. 58 § 2, 1959)

The term "parcel of land" means a contiguous quantity of land, in the possession of, or owned by, or recorded as the property of the same claimant or person.

(Ord. 58 § 3, 1959)

Every person making, maintaining or using any manmade excavation three feet or more in depth, and every person owning or having possession of any premises on which such excavation exists shall erect and maintain around such excavation at all places a fence not less than five feet high mounted on steel posts with not less than three strands of barbed wire mounted at a forty-five degree angle from the top of the fence. Such fence shall be constructed of chain link or other industrial type fencing of not less than nine gauge wire and of not greater than two-inch mesh. The posts supporting such fence shall be set thirty-six inches in a concrete base and shall be spaced approximately ten feet apart. Tension wires of at least No. 9 gauge coil spring wire, or equivalent, shall be stretched at the top and bottom of the fence fabric and fastened to the fabric at twenty-four inch intervals. Gates shall be of a structure substantially the same as the required fence and shall be kept locked when not attended by an adult. There shall be no apertures below the fence large enough to permit any child to crawl under such fence. Further, any oil well sump regardless of depth shall be deemed to be an excavation to be protected as required herein.

(Ord. 58 § 7, 1959)

Any person who desires to cover any such excavation referred to in Section 9.36.040, in place of installing and maintaining the fence which would otherwise be required by this chapter, shall apply to the city engineer in writing for a permit to cover such excavation, describing the location and size of the excavation, the dimensions of the opening to be covered, the proposed cover and such other relevant information as the city engineer may require. The city engineer shall inspect the excavation and issue or deny the permit upon the basis of his expert opinion of whether the proposed cover would furnish substantially equivalent safety protection to the fencing otherwise required by this chapter, and upon such conditions as he may impose. Any person aggrieved by the issuance or denial of the permit may appeal to the city council, which shall decide the issue.

(Ord. 58 § 8, 1959)

Any person who desires to substitute fencing of masonry or other material in place of the fencing otherwise required by this chapter, shall apply to the city engineer in writing for a permit to substitute such other type of fencing, describing the excavation, the other type of fencing and such other relevant information as the city engineer may require. The city engineer shall issue or deny the permit upon the basis of his expert opinion of whether the proposed substitute fencing would furnish safety protection substantially equivalent to the fencing otherwise required by this chapter, and upon such conditions as he may impose. Any person aggrieved by the issuance or denial of the permit may appeal to the city council, which shall decide the issue.

(Ord. 58 § 9, 1959)

Any person who desires to substitute temporary barricades or other temporary protective devices in place of the fencing otherwise required by this chapter, shall apply to the city engineer in writing for a permit to substitute such barricades or other protective devices, describing the excavation, the barricades or other protective devices, and such other relevant information as the city engineer may require. The city engineer shall issue or deny the permit upon the basis of his expert opinion of whether the proposed barricades or other protective devices would furnish safety protection which is reasonably adequate for the purpose of this chapter, for a limited time period. The city engineer may include in such permit reasonable conditions. The city engineer shall include in such permit a time limit, not to exceed ten days, by which time the applicant shall either fill such excavation or provide permanent fencing or covering of such excavation as required by other provisions of this chapter. Any person aggrieved by the issuance or denial of the permit may appeal to the city council which shall decide the issue.

(Ord. 293 § 1, 1971)

Every person operating or maintaining an oil well shall cause all sumps, cellars and ditches which were used, or installed, or maintained for use in connection with any well and which have not been used for ninety days for the operation of, or the drilling of, such well or any other well in the vicinity, to be cleaned out and all oil, rotary mud and rubbish removed therefrom.

(Ord. 58 § 10, 1959)

This chapter does not apply to:

(a) An oil sump constantly and immediately attended while drilling operations are continuously proceeding.

(b) An excavation more than one-quarter mile from the nearest highway and within one-half mile of which excavation there are less than twenty residences.

(c) An excavation for the installation of a public utility, if not abandoned.

(d) An excavation in connection with the construction of a private residence, if not abandoned.

(e) A swimming pool, fish pond, wading pool or other outside body of water created by artificial means, designed or used for swimming or other immersion purposes by men, women or children, if it is protected as required by Chapter 9.40.

(f) An excavation not more than one-half mile in length which becomes a portion of a natural watercourse.

(Ord. 58 § 12, 1959)

Where a manmade excavation is filled with water so that the area of the surface of such water exceeds one acre and the nature of the excavation and water is such as to constitute an artificial lake, a fence or barrier is not required by this chapter at any portion of the boundary of such excavation where:

(a) The edge of the excavation is not more than one foot above the surface, or at no place is the slope to the water greater than one foot vertical to four feet horizontal.

(b) The slope in the water is not greater than one foot vertical to four feet horizontal to a depth of five feet.

(Ord. 58 § 13, 1959)

If, by the erection of a dam or other structures in or beside a natural stream or other natural body of water, an artificial body of water is created, the maintenance of the original depth of such body of water by dredging or otherwise removing earth, debris, or other matter therefrom at periodic intervals shall not be deemed to be the making of an excavation as those words are used in this chapter.

(Ord. 58 § 14, 1959)

Whenever any person fails or refuses to perform any act required by this chapter, the chief of police shall serve upon such person a notice in writing requiring that such person within ten days after the service of such notice shall comply with the terms of this chapter or file a protest with the city clerk.

Service of said notice shall be made in the manner provided by the code of civil procedure for the service of a civil summons. Compliance with this section is a condition precedent to performance of the fencing or other work at the initial expense of the city; but such compliance is not a condition precedent to any criminal prosecution for violation of this chapter.

(Ord. 58 § 15, 1959)

Upon filing of any protest the city council may adopt an order that the person protesting is not required to comply. If the city council does not adopt such an order it shall notify such person in writing not less than five days prior thereto, of the time and place of, and shall hold a public hearing to determine what acts, if any, this chapter requires the person filing such protest to perform.

(Ord. 58 § 17, 1959)

Upon the hearing of any such protest the city council shall determine what acts, if any, this chapter requires the person filing such protest to perform. It shall notify in writing such person of its decision.

(Ord. 58 § 18; April 13, 1959)

If a person is notified as provided in this chapter to comply and neither complies nor protests within the ten days provided for, or if a person protests and the city council decides that such person should perform certain work and for ten days after notice of such decision does not do so, the city shall cause the work to be performed at city expense.

(Ord. 58 § 19; April 13, 1959)

The city clerk shall keep an account of the cost of all work performed at city expense pursuant to this chapter and shall render an itemized report to the city council showing the cost of protecting each separate excavation, sump, cellar or ditch, upon each separate parcel of land.

(Ord. 58 § 20; April 13, 1959)

Before the report required by Section 9.36.150 is submitted to the city council, a copy of it shall be posted for at least three days on or near the chamber door of the city council with a notice of the time when the report will be submitted to the city council for confirmation.

(Ord. 58 § 21; April 13, 1959)

A postcard notice of the time and place of the submission of the report required by Section 9.36.150 for confirmation, stating generally the nature of the report, shall be mailed by the city council to the owners of the parcels who have filed with the city council a written request for postcard notice within one year prior to the date of mailing the notice, at least seven days prior to the date of submission for confirmation.

(Ord. 58 § 22; April 13, 1959)

At the time fixed for receiving and considering the report, the city council shall hear it and any objections of any property owners liable to be assessed for the work of protection.

(Ord. 58 § 23; April 13, 1959)

Upon hearing the expense report the city council may make such modifications in the report as it deems necessary, after which, by order or resolution, the report shall be confirmed.

(Ord. 58 § 24; April 13, 1959)

The amount of the costs for the protection work upon the various parcels of land mentioned in the report required by Section 9.36.150 as confirmed, shall constitute liens on such parcels for the amounts expended thereon by the city.

(Ord. 58 § 25; April 13, 1959)

The city council shall record a certified copy of the report required by Section 9.36.150 in the office of the county recorder.

(Ord. 58 § 26; April 13, 1959)

The city may bring appropriate actions in courts of competent jurisdiction to collect any amounts due for work of protecting excavations performed by the city and to foreclose liens for such amounts.

(Ord. 58 § 27; April 13, 1959)

Any person violating or permitting or responsible for the violating of any of the provisions of this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in Section 1.04.100 of this code.

(Ord. 58 § 16; April 13, 1959)