Fremont Municipal Code Art. I General Provisions and Definitions

(a) The public rights-of-way are unique public resources held in trust by the city for the benefit of the public. These physically limited resources require proper management by the city to maximize the efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, to minimize the inconvenience to and negative effects on the public from nontraditional uses of the public rights-of-way, to promote orderly growth and development that is compatible with the surrounding neighborhood character, to ensure provision for adequate traffic circulation, utilities, and other public services in the city, and to preserve the public health, safety and general welfare.

(b) Under applicable state and federal law, the city is empowered to control access to and use of its public rights-of-way, and unless specifically preempted by state or federal law, to obtain reasonable and fair compensation for the use of its public rights-of-way.

(c) The purpose of this chapter is to serve and further the purposes identified and to enable the city to treat similarly persons who are making a similar use of the city’s public rights-of-way, as may be appropriate to comply with applicable law.

(d) Nothing in this chapter is intended to prevail over federal or state laws or franchise rights, and to the extent any conflict arises, such laws and rights shall govern. This subsection is declaratory of and does not constitute any change in existing law. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1100.)

For purposes of this chapter, the following terms shall apply. Words, terms or phrases not defined in this section shall have the meaning defined in Chapter 1.10 or, if applicable, the meaning or connotation used in any industry, business, trade, or profession where they commonly carry special meanings.

“Aboveground facility” or “AGF” means all structures, poles, pedestals, cabinets, transformers, electric meters and any other facility installed above surrounding grade in the public right-of-way.

“Arterial street” means a high-capacity local street that meets the demand for longer through trips within the city and has three or more lanes.

“Cable(s)” means any wire, coax, fiber or conduit used to house the same.

“Cable service” means (1) the one-way transmission to subscribers of video programming or other programming service; and (2) subscriber interaction which is required for the selection of or use of video programming or other programming service.

“City” means the city of Fremont.

“CPUC” means the California Public Utilities Commission.

“Department” means the department of community development.

“Excess capacity” means the volume or capacity in any existing or future duct, conduit, maintenance hole, hand hole or facility that is or will be available for use by third parties.

“Facility” or “facilities” means any cable or other wire or line, pipeline, pipe, valve, duct, conduit, converter, cabinet, pedestal, transformer, meter, tunnel, vault, equipment, drain, maintenance hole, splice box, surface location marker, pole, sign, structure, utility, awning, overhang, column, wall or other appurtenance, property, wireless facility1, or tangible thing owned, leased, operated, or licensed by permittee that is located or is proposed to be located in, on or over the PROW.

“Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, financial, legal, and technological factors.

“Franchise” means a written contract or agreement executed between permittee and the city or a federal or state document granting the right to own, operate and maintain facilities in the PROW to provide services.

“Landscaping” means the planting and maintenance of shrubs, lawns and other evergreen ground cover or material, including inorganic accessory materials utilized to accent or complement the vegetation, and the installation and maintenance of irrigation systems.

“Permittee” means any person or authorized agent of any person who is seeking to encroach in the PROW or who has been issued an encroachment permit.

“Public property” means all real property and improvements owned, operated or controlled by the city, other than public right-of-way, within the city’s jurisdiction. City property includes, but is not limited to, City Hall, police and fire facilities, recreational facilities, parks, libraries, streetlights and traffic lights.

“Public right-of-way” or “PROW” means the surface of and the space above and below any street, public way, public service (including public utility) easement, or public path or thoroughfare designated for a vehicular, bicycle or pedestrian use or purpose of any nature, now or hereafter held by the city, however acquired.

“Public utility” means a CPUC-regulated service provided by a public utility provider.

“Public utility provider” means a permittee that is regulated by and has received a certificate of public convenience and necessity from the CPUC to provide a CPUC-regulated service.

“Service(s)” includes, but is not limited to, public utilities, electricity, gas, cable service, information services, sewer, storm drains, water, telecommunications, traffic controls, transit, video, or other similar services that may require or request placement of facilities in the PROW.

“Street” or “streets” means any street, road, highway, lane, court, boulevard, or other similar public way, including related facilities such as medians, parkways, sidewalks, curbs, gutters, driveways and signs, but excepting that portion of the street forming a part of the state highway system.

“Subscriber” means a person lawfully receiving or using service. (Ord. 14-2007 § 2, 5-8-07; Ord. 09-2017 § 9, 6-6-17. 1990 Code § 6-1101.)

“Encroach” or “encroachment” includes each of the following:

(a) Installation of any facility or performance of any excavation, grading, construction or erection within the public right-of-way.

(b) Going upon, over, or under any public right-of-way in a manner that prevents, obstructs, or interferes with the uses of the public right-of-way approved by the city. The uses of the public right-of-way approved by the city include the flow of vehicular, bicycle or pedestrian traffic, encroachments approved by the city in accordance with this chapter, and exclusions identified in Section 12.05.080.

(c) Performance of maintenance, repair, modification, addition, relocation, or removal on any existing encroachment.

(d) Placing or leaving material or equipment of any nature (such as construction materials or equipment, rubbish, trash, brush, fire, shrubs or dirt) in the public right-of-way, or placing or leaving any such material adjacent to the public right-of-way in such a manner which is likely to cause an encroachment into the public right-of-way.

(e) Traveling on the public right-of-way with a vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1102.)

A “major encroachment” means an improvement or activity that qualifies as an encroachment under Section 12.05.030(a) or (b) and that is one of the following.

(a) Affects the use, operation or maintenance of a city-owned AGF.

(b) A new or expanded AGF that is greater than 30 inches in height above ground measured from the adjacent curb or, if no curb, from the crown of the street, or greater than 24 inches in either width or length.

(c) An excavation of 300 linear feet or more.

(d) Two or more new or expanded AGFs within 1,500 feet of each other or within 1,500 feet of existing AGFs, irrespective of the dimensions specified in subsection (b) of this section.

(e) An architectural or structural projection into the PROW, including signage attached to a building.

(f) Construction activities other than minor improvements. A “minor improvement” means construction of curb and gutter, sidewalks or driveways, pervious planter strips, street improvements of less than 300 feet, and other improvements with minimal impact on the PROW.

(g) An underground vault, tank, cabinet, splice box, structure or similar facility greater than seven feet in depth, width or length. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1103.)

Wireless facilities, as defined in Section 18.25.3225, shall be subject to all applicable provisions of this chapter and shall be processed in accordance with Section 18.187.150. (Ord. 09-2017 § 10, 6-6-17.)