Fremont Municipal Code Art. III Encroachment Permit Applicability and Form

In addition to any agreement, license, permit or franchise required by this chapter or any other chapter of this code, and in addition to any other permit or entitlement required by local, state or federal law, permittee shall obtain an encroachment permit prior to encroaching in the public right-of-way and shall pay all fees required by this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1300.)

No encroachment permit shall be required for any of the following:

(a) Emergency work. Nothing contained in this chapter shall be construed to prevent permittee from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by permittee when such necessity arises during days or times when the department is closed. In the event that permittee performs any work in the PROW pursuant to this section, permittee shall apply for a permit within 24 hours after the department’s offices first open. The applicant shall submit a written statement setting forth the basis of the emergency action and describing the work performed and remaining to be performed.

(b) City employees performing work in the public right-of-way in the course and scope of the city employee’s duties.

(c) Independent contractors under direct contract with the city performing duties in the public right-of-way in accordance with the terms of the contract; provided, however, that the terms of the contract specifically authorize the contractor to perform the duties in the public right-of-way without further compliance with the requirements of this chapter.

(d) Installation of real property monuments in accordance with an approval from the city in accordance with Title 17 (Subdivisions).

(e) Installation of landscaping and irrigation, including boring irrigation lines under the sidewalk, by or on behalf of a private property owner in that portion of the public right-of-way from the back of the curb and gutter to the edge of and including a city easement for public service purposes. No tree or paving shall be installed under this subsection. Planting of trees in the public right-of-way shall be governed by Chapter 12.30 (Maintenance of Street Trees and Sidewalks).

(f) Lawful fences on private property within a city public service easement.

(g) Continuing use or maintenance of encroachments installed by permittees, or for changes thereto where such changes do not require excavation or enlargement of aboveground use or removal and replacement of improvements in the PROW.

(h) Subdivisions that have final map or parcel map approval, including an agreement for the completion of all improvement work required therefor. The city engineer may require an encroachment permit for improvements not part of an improvement agreement.

(i) Activities for which an outdoor commercial patio permit has been issued pursuant to Section 18.190.412.

(j) Any activity in the right-of-way for which a special event permit has been obtained in accordance with the provisions of Chapter 12.25 (Special Events and Parades).

(k) Signage on private property within the PROW for which a permit has been issued pursuant to Section 18.193.010.

(l) Newspaper racks in compliance with Title 18. (Ord. 14-2007 § 2, 5-8-07; Ord 11-2010 § 12, 5-25-10; Ord. 06-2022 § 1, 6-7-22. 1990 Code § 6-1301.)

An application for an encroachment permit, along with payment of any fees or deposit required by this chapter, shall be filed with the city engineer in the form and manner required by the city engineer and shall contain all of the following:

(a) The identity of permittee. If the application is made by an authorized agent of permittee, written authorization shall be provided.

(b) Engineering plans and specifications of all work to be done in the PROW. The plans and specifications shall be prepared by an engineer or other licensed professional authorized by the state of California to do so, except where such plans and specifications are waived in subsection (c) of this section. The plans and specifications shall show:

(1) The design and improvement of the street and facilities, together with the location of all existing facilities, improvements, trees and fences in the PROW along the proposed route and area of work. The form of the plans and the engineering design standards to be used shall be in accordance with Title 17 (Subdivisions), together with standard details and specifications of the city of Fremont. The final plans and specifications are subject to approval by the city engineer.

(2) If required by the city engineer, photographs or artist’s renderings of all aboveground visible equipment, from which their fully dimensioned size must be apparent. The submission may be required to include a detailed description of the equipment included within the aboveground installation and any anticipated noise levels.

(3) A master and phasing plan of the facilities to be located within the PROW, including a map in a form required by the city engineer.

(4) The specific trees, structures, improvements, facilities and obstructions, if any, that permittee proposes to temporarily or permanently remove or relocate.

(c) Engineering plans and specifications may be waived by the city engineer for encroachment permits where minor street or facilities work is required, or where existing physical conditions exist that are well defined and can be used to control the work. If uncertainties or difficulties arise from the work during the course of construction, the city engineer may require the engineering plans and specifications to be prepared to complete the work. Where engineering plans and specifications have been waived, any substitute plans and specifications required for the encroachment permit will be determined by the city engineer.

(d) A construction work plan. The information required by Section 12.05.150, including but not limited to a construction schedule, final completion date, and specific construction benchmark dates as to identified portions of the project.

(e) A traffic control plan describing the manner in which permittee will manage vehicle, bicycle, and pedestrian traffic along affected streets when installing or maintaining facilities.

(f) A public notification plan. Permittees may be required by the city engineer to provide reasonable advance notice to the public via a public notification plan of the proposed quantity, precise dimensions, design, color, type, potential noise and location of aboveground facilities. Any such requirement shall take into account the area covered and impacts of the AGFs.

(g) Certifications and consents. Upon request, permittee shall provide copies of certifications, licenses, permits, franchises or other applicable approvals of the CPUC, sanitary district, water district or any other public body having jurisdiction, to construct and operate the facilities and to offer or provide the services, including, if applicable, evidence of permission to use other public or private property.

(h) Excess capacity. If permittee is proposing an underground installation with new facilities to be constructed within the PROW, it shall agree to provide, upon request, information regarding any excess capacity that will exist in such ducts or conduits after installation of permittee’s facilities, to the city or a subsequent permit applicant.

(i) Contact with other permittees. If applicable, permittee shall first seek to use technically compatible excess capacity of other companies by contacting the other permittees specified by the city engineer in writing. If use of excess capacity is not technically compatible, permittee shall provide an explanation to the city engineer as to why any excess capacity cannot be used.

(j) Applications for AGFs must include a graffiti mitigation plan consisting of: an explanation of how permittee will maintain the AGFs free from graffiti and other defacements; a commitment to inspect AGFs at least two times a year; identification of the resources dedicated to mitigating graffiti; information for a single point of contact responsible to resolve graffiti issues should they occur; a statement that graffiti shall be removed within 48 hours of the time at which permittee is notified of graffiti; and that the AGF surfaces shall be restored to their original exterior appearance.

(k) Other. Other information relating directly to PROW management and use as may reasonably be required by the city engineer. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1302.)

(a) Encroachments. The city engineer shall issue an encroachment permit for an encroachment upon review of a completed application and a determination that permittee has complied or will comply with all applicable requirements of this chapter, except that a permit for a major encroachment shall be governed by subsection (b) of this section.

(b) Major Encroachments Are Discretionary. Each permit for a major encroachment shall be subject to all applicable requirements of this chapter. In determining whether to grant or deny a permit for a major encroachment, the city engineer shall consider the following:

(1) The capacity of the PROW to accommodate permittee’s proposed facilities and facilities known to be needed in the future.

(2) The capacity of the PROW to accommodate known additional facilities if the permit is granted.

(3) The damage or disruption, if any, to the PROW or any public or private facilities, improvements, aesthetics, services, pedestrian or vehicle travel or landscaping if the permit is granted.

(4) The availability of technically compatible existing facilities or excess capacity, or alternate routes and/or locations for the proposed facilities which would be less disruptive or which better protects the PROW for its dedicated use.

(5) The adverse aesthetic or blighting effect of any facilities by virtue of their design, color, dimensions, locations and quantity.

(6) Compliance with the requirements of this chapter, the code and other federal, state and local requirements.

(7) Completion of any environmental review required under the California Environmental Quality Act (CEQA).

(8) The extent to which permittee has a legal right to use the PROW.

(c) Modifications. Any approval of a permit may require modifications to the proposed activities pursuant thereto as a result of the city engineer’s consideration of the factors set forth above, including by limiting or changing the number, size, color and location of the aboveground facilities and equipment proposed to be installed and/or requiring the installation of landscape or other camouflaging techniques or requiring undergrounding to minimize adverse visual impacts and obstructions.

(d) Fees. As a condition of the issuance of any permit, permittee shall pay and submit all applicable cost-based fees authorized by Section 12.05.300 or otherwise by this chapter and assessed by resolution of the city council.

(e) Right to Inspect. Upon the provision of reasonable notice by the city, permittee shall allow the city the unrestricted right to inspect permittee’s work at any time the city deems appropriate.

(f) Duration and Validity. Permits shall be void if the work has not begun within 90 calendar days of the start date specified in the permit, if the work under the permit is not prosecuted diligently to its conclusion, or if the work, including restoration of pavements and surface improvements, has not been completed within the specified duration; provided, however, that the city engineer may, upon good cause, issue extensions to the start date, the duration of the work, or both upon request from permittee.

(g) Permit Available On Site. The permit or a duplicate shall be available for review at the site of the work for the duration of the work and shall be shown, upon request, to any police officer or any other city employee with jurisdictional responsibility over activities in the PROW. (Ord. 14-2007 § 2, 5-8-07; Ord. 09-2017 § 11, 6-6-17. 1990 Code § 6-1303.)

No encroachment permit shall relieve permittee of any obligations involved in obtaining pole or conduit space from the city, any utility permittee, or from others maintaining utilities in the city’s PROW. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1304.)

The city engineer is designated the officer of the city who is responsible for the continuing administration of this chapter, unless otherwise designated by the city manager. Unless prohibited by federal, state or local law, the city engineer may further delegate his or her powers and authority to a duly authorized representative with respect to administering this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1305.)