Chapter 16.11 — OBSTRUCTION TO CITY STREETS

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

DIRECTOR. The Director of Public Works of the city.

ENCROACHMENT. Any physical obstruction other than a motor vehicle and includes any structure or object of any kind or character placed, without the authority of law, either on, in, under or over any city street. For the purpose of this definition, AUTHORITY OF LAW includes a public works permit issued pursuant to Chapter 16.07 of this code.

STREET. All or any part of the entire width of public right-of-way of a city street, whether or not such entire area is actually used for street purposes.

(Ord. 2762, passed - -1991)

(A) The Director, or his or her designee, may immediately summarily abate, remove or by notice may require the removal of any of the following encroachments:

• (1) Any encroachment which obstructs or prevents the use of a city street by the public;

(2) Any encroachment which consists of refuse, trash, garbage, construction debris or containers for refuse, trash, garbage or construction debris; and

• (3) Any encroachment which is a traffic hazard.

(B) (1) The Director may return such encroachment to its owner, or otherwise dispose of it at his or her discretion, except that if the Director determines in good faith that the encroachment is of more than nominal value, he or she shall not effect such other disposition until he or she has made a reasonable attempt to identify and notify the owner of the encroachment and provide a reasonable time, but not less than ten days, for the owner to retrieve it under provisions of this chapter.

(2) The return of such encroachment may be conditioned upon payment of an amount sufficient to reimburse the city for the expenses of removal, storage and any damage caused by the encroachment.

(3) If the encroachment is not claimed or the costs paid within said reasonable time, the encroachment shall be deemed to be abandoned and may be sold, destroyed or transferred to the city for public use. (Ord. 2762, passed - -1991)

(A) Whenever the Director, or his or her designee summarily abates an encroachment, as specified in § 16.11.020, and the ownership of that encroachment is known or can be readily determined from identification on the encroachment, and the encroachment has, in the opinion of the Director, a value of $500 or more, then the Director shall provide the owner with the opportunity for a post-seizure notice and hearing to determine the validity of the seizure.

(B) Notice of such seizure shall be mailed or personally delivered to the registered and legal owners within 48 hours, excluding weekends and holidays, and shall include the following information:

• (1) The name, address and telephone number of the Director;

(2) The location of the place from which the encroachment was seized and a description of the encroachment;

• (3) The authority and purpose for the removal of the encroachment; and

• (4) Specify that, in order to receive their post-seizure hearing, such owners, or their agents, must request the

hearing in person, writing or by telephone within ten days of the date appearing on the notice.

(C) Any such hearing shall be conducted within 48 hours of the request, excluding weekends and holidays. The Director may authorize a city officer or employee to conduct the hearing, so long as such Hearing Officer is not the same person who directed the storage of the encroachment.

• (D) Failure of either the owner, or his or her agent, to request or to attend a hearing as scheduled shall satisfy the post-storage validity hearing requirement of this section.

• (E) The city shall be responsible for the cost incurred for seizing if it is determined at the hearing that probable cause for the storage cannot be established.

(Ord. 2762, passed - -1991)

The Director may, by notice, require the removal of any encroachment not specified in § 16.11.020 from any city street.

(Ord. 2762, passed - -1991)

The notice referred to in §§ 16.11.020, 16.11.025 and 16.11.030 shall be served upon the occupant or owner of the land, or the person causing, controlling or owning the encroachment, or shall be left at the place of residence or business of such occupant, owner or person if such place is in the city. If the person upon whom notice is to be served does not reside or do business in the city, the notice shall be posted on the encroachment. The notice shall specify the breadth of the highway, the place and extent of the encroachment, and shall require the removal of such encroachment within 48 hours or such longer period of time as the Director deems appropriate.

(Ord. 2762, passed - -1991)

If the property owner denies that an encroach- ment exists under § 16.11.030, and the owner or occupant of the land, or the person causing, owning or controlling the alleged encroachment refuses either to remove it or permit its removal, the city may commence, in any court of competent jurisdiction, an action for abatement. (Ord. 2762, passed - -1991)

If the property owner admits or fails to deny that an encroachment exists under § 16.11.030, and if the encroachment is not removed within the time period set forth on the notice from and after service or posting of the notice, the city may remove the encroachment at the expense of the owner of the encroachment, the owner of the land or any other person causing the encroachment to exist.

(Ord. 2762, passed - -1991)

No person shall place or authorize the placement of an encroachment in the street. Any person violating any of the provisions of this chapter shall be subject to the penalties specified in § 1.08.010 of this code.

(Ord. 2762, passed - -1991; Ord. 2940, passed - -1998)

If any section, division, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the chapter. The City Council declares that it would have passed the ordinance codified in this chapter and each section, division, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, divisions, sentences, clauses or phrases be declared invalid or unconstitutional. (Ord. 2762, passed - -1991)