Fillmore Municipal Code Ch. 11.12 Encroachments Upon Public Streets

(1) "Encroachment" means any pole, pipeline, fence, sign, excavation, building or any structure or object of any kind or character which is placed in, under or over any portion of a street right-of-way. The taking, placing, moving or using on a right-of-way of any vehicle or combination of vehicles or other objects of a dimension, weight or other characteristic prohibited by the California Vehicle Code is an encroachment.

(2) "Street" means any part of the entire width of the right-of-way of a public street, highway, road, lane, way or alley, whether or not such area is actually improved and used for street purposes.

(3) "Superintendent" means the city's city engineer/public works director.

(Ord. 417 (part), 1972)

(Ord. No. 14-844, § 3, 1-28-2014)

A. It is unlawful for any person to encroach or to make or cause to be made any encroachment within the city without first obtaining a permit from the superintendent. The superintendent shall prescribe and provide a form of application for the permits required by this chapter. The permit application shall contain such information as is deemed necessary by the superintendent. The application form shall be completed and filed with the superintendent, together with all fees, cash deposits, bonds and other documents which are required by this chapter and by the superintendent.

B. No encroachment permit under this chapter shall be issued unless a written application for the issuance of an encroachment permit is submitted to the superintendent. The written application shall state the name and address and principal place of business of the applicant, the location and dimensions of the installation, the purpose of the facility and the approximate time which will be required to complete such work and remove waste material and debris.

C. Blanket permits, renewable annually, may be issued by the superintendent. The superintendent may revoke any such blanket permit if the permittee fails to comply with any provisions of the permit or of this chapter. Blanket permits are limited to excavations sixteen feet or less in length and/or thirty-two square feet in area. Before issuing a permit for the movement of a vehicle or object with a rolling height of more than sixteen feet, the superintendent shall require evidence of approval of height clearance from the public utility companies having overhead lines crossing the proposed route.

D. When a completed application for a permit is received by the public works department the application shall be approved or denied by the superintendent, or his or her designee, within sixty days after the date of his/her receipt.

E. An application for a permit sought pursuant to this chapter shall not be complete until the applicant has complied with all requirements, including any analysis required under the California Environmental Quality Act (CEQA) and state CEQA Guidelines.

F. Any permit shall be subject to any reasonable conditions or limitations imposed thereon to assure the elimination or avoidance of adverse effects.

G. If the applicant complies with every provision of this chapter and with all applicable provisions of this code, the superintendent may issue to the applicant a written permit to perform the work set forth in the application. The application, when approved and signed by the superintendent or his or her designee, shall constitute the permit.

H. An extension of time may be granted by the superintendent for good and sufficient reasons.

I. In the event the superintendent denies an application for a permit, the director shall notify the applicant of the denial and furnish to the applicant a detailed written explanation of the reason(s) for the denial.

J. In the event an applicant wishes to appeal the superintendent's decision to deny an application or revoke a permit issued pursuant to this chapter, the decision may be appealed to the city council. An appeal shall be filed by submitting to the city clerk, within ten days after the superintendent's notification of a decision on the application, a notice of appeal stating the grounds for the appeal along with the filing fee in an amount established by resolution of the city council. If the tenth day falls on a weekend or legal holiday recognized by the city, then the final appeal day shall be the next regular business day of the city. Within thirty days after the receipt of a timely appeal, the city manager shall agendize the appeal for consideration by the city council.

(Ord. 417 (part), 1972)

(Ord. No. 14-844, § 4, 1-28-2014)

The fees and charges payable by the permittee pursuant to the provisions of this chapter are those fixed by resolution of the city council from time to time.

(Ord. 417 (part), 1972)

If, in the judgment of the superintendent, it appears desirable to maintain an inspector to determine whether the encroachment is made in compliance with the permit, the permittee shall pay the city according to the schedule of charges for permit inspectors adopted by the city council from time to time.

(Ord. 417 (part), 1972)

If any of the provisions of the permit or of this chapter are violated, the superintendent may serve written notice upon the violating permittee, giving the permittee twelve hours in which to cure the violation. If the violation threatens injury to persons or property, the notice shall state that all encroachment work must stop until the violation is cured. If, after twelve hours from the service of the notice, the violation is not cured and there is no evidence that the permittee is diligently and effectively attempting to cure the violation, the superintendent may revoke the permit.

(Ord. 417 (part), 1972)

At least twenty-four hours before commencing any encroachment work authorized by any permit, the permittee shall notify the superintendent of the time of commencing work and provide the name, address, telephone number and state and city license number of the contractor who will perform the work.

(Ord. 417 (part), 1972)

Upon completion of the encroachment work authorized by a permit, the permittee shall restore the right-of-way by replacing, repairing or rebuilding it to its original condition before the work was commenced. The permittee shall remove all obstructions, materials and debris upon the right-of-way and shall do any other work necessary to restore the right-of-way to a safe and usable condition, as directed by the superintendent. Where excavation occurs within areas already paved, the superintendent may require temporary paving to be installed where the area is backfilled. In the event that the permittee fails to act promptly to restore the right-of-way as herein provided, or if the nature of any damage to the right-of-way requires restoration before the permittee can be notified or can respond to notification, the superintendent may, at his option, make the necessary restoration. The permittee shall reimburse the city according to the schedule of charges for such work adopted by the city council from time to time.

(Ord. 417 (part), 1972)

If the encroachment work is not completed within the time specified in the permit or if at any time the superintendent finds that delay in commencing or prosecuting the encroachment work is caused by lack of diligence on the part of the permittee, the superintendent may revoke the permit and restore the right-of-way to its condition before the encroachment work commenced. The permittee shall reimburse the city according to the schedule of charges for such work adopted by the city council from time to time.

(Ord. 417 (part), 1972)

This chapter does not prevent any person from performing emergency maintenance upon any pipe or conduit lawfully on or under any street or from making an emergency use as may be necessary for the preservation of life or property when an urgent necessity arises. The person making an emergency use or encroachment of a street shall apply for a permit therefor on the first working day thereafter.

(Ord. 417 (part), 1972)

Unless exempt from this requirement by law or by the superintendent, each applicant shall, before obtaining a permit, deposit with the superintendent a cash deposit or surety bond, or shall file a certificate of deposit or savings and loan share assignment in an amount, fixed by the superintendent, sufficient to restore the right-of-way to its original condition. Any deposit required pursuant to this section shall be released ninety days after the satisfactory completion of all work and the fulfillment of all conditions of the permit, less such charges as may be owing from the permittee to the city.

(Ord. 417 (part), 1972)

All encroachment work shall conform to standards established by the superintendent or, in the absence of such standards, to the specifications contained in the current edition of the standard specifications of the state issued by the Department of Public Works, Division of Highways.

(Ord. 417 (part), 1972)

In any trenching operation, the open trench shall not be more than one day's work ahead of the trench work proper, unless specifically authorized by the superintendent. When any excavation is commenced, the work of making and refilling is to be prosecuted diligently to completion. Backfilling shall commence immediately after work in a trench is completed and approved by the superintendent.

(Ord. 417 (part), 1972)

Except for materials properly stored, the permittee shall at all times keep the street clear of all materials, earth and debris. Immediately after completion of the work, the permittee shall clean up and remove all materials, earth and debris of any kind. If the permittee fails, to do so within twenty-four hours after having been notified to do so by the superintendent, cleanup work may be done by the city and the permittee charged for all expenses incurred.

(Ord. 417 (part), 1972)

In the conduct of the encroachment work the permittee shall provide and maintain such safety devices, including but not limited to lights, barricades, signs and watchmen, as are necessary to protect the public. Any omission on the part of the superintendent to specify in the permit what safety devices shall be provided by the permittee does not excuse the permittee from complying with all laws, regulations and ordinances relating to the protection of persons under the circumstances. If the superintendent finds that suitable safeguards are not being provided, he may provide, maintain and relocate such safety devices as he deems necessary, or he may cancel the permit and restore the right-of-way in accordance with existing standards, charging the permittee the entire cost of the work. A permittee making any excavation or leaving any obstruction which could be a hazard to persons using the right-of-way shall provide and maintain warning lights far enough away from the excavation or obstruction to give adequate warning to such persons, and at not more than fifty foot intervals along the excavation or obstruction, from one-half hour before sunset of each day to one-half hour after sunrise the next day, until the work is completed and the right-of-way made safe for use.

(Ord. 417 (part), 1972)

Pursuant to the authority of Section 53080 of the Government Code, as a condition to the issuance of any permit pursuant to this chapter the permittee shall:

(a) Agree in writing to defend and hold harmless the city and its officers, agents and employees from any and all claims, demands, actions, causes of action, liabilities and losses of any kind arising out of or in any way occasioned by or connected with any act or omission of the permittee, whether acting pursuant to the permit or otherwise; and

(b) Deliver to the superintendent, in form satisfactory to the city attorney, one or more certificates of a company or companies lawfully engaged in the liability insurance business in the state, giving evidence of the existence of a policy or policies of public liability insurance, with the premium prepaid, for a term not less than the term of the permit, running to the protection of the city, its officers, agents and employees when acting in their official capacity as such, to a single limit of one million dollars, or such lower limit as the city attorney may prescribe, having reference to the nature, scope, duration and location of the intended encroachment. Such certificate shall state that the coverage evidenced thereby shall not be canceled earlier than ten days after written notice of cancellation is actually communicated to the city.

(Ord. 87-590 § 1, 1987: Ord. 417 (part), 1972)

A. Any permittee under this chapter shall at its own expense protect, support temporarily, disconnect, relocate in the same street, alley or public place, or remove from any street, alley or public place, any property of the permittee when required by the superintendent by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, traffic signals and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity or any other structures or public improvements; provided, that the permittee shall, in all such cases, have the privileges and be subject to the obligations to abandon any property of the permittee in place. Upon failure of the permittee to complete any work required by law or by the provisions of this chapter to be done in any street, within the time prescribed, and to the satisfaction of the superintendent, the superintendent may cause such work to be done and the permittee shall pay to the city the cost thereof in the itemized amounts reported by the superintendent to the permittee, within 30 days after receipt of such itemized report.

B. Notwithstanding subsection A., above, in the event that an existing utility line or associated equipment is in conflict with a city use, said utility shall be required to move its lines or equipment at its sole costs, in accordance with governing law or franchise.

(Ord. No. 14-844, § 5, 1-28-2014)

Any above or below ground utility conduit, structure or devices permitted under this chapter to be constructed or installed in streets or public easements shall be so constructed, installed and maintained only in conformity with this code and any other ordinances, resolutions, rules and regulations adopted by the city council, at such locations and in such manner as shall be approved by the superintendent acting in the exercise of his or her reasonable discretion. Plans and specifications for such facilities shall be filed with the public works department.

(Ord. No. 14-844, § 5, 1-28-2014)