Irvine Municipal Code Ch. 2 Encroachment Regulations

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Encroachment means any physical obstruction and includes any structure or object of any kind or character placed, without the authority of law, either in, under, over or across any City street or crossing of a parkway at locations other than existing driveways. Provisions of Section 5-10-245 shall apply to this chapter.

Encroachment permit shall mean a permit issued by the Chief Building Official for the purpose of encroaching within public rights-of-way.

Permittee shall mean any person, firm, corporation, public utility or public agency desiring to obtain or having obtained an encroachment permit as defined herein.

Public agency shall mean any city, county, public corporation or public district established through due process of law.

Public improvements include street improvements, storm drainage, sewer, water, landscaping and other related improvements that the City will maintain upon completion.

Public street includes 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.

Public utility shall mean private corporations authorized by law to establish and/or maintain any works or facilities in, under or over any public street. This chapter shall not limit the powers and duties vested by law in the Public Utilities Commission of the State, and in the event of any conflict the Public Utilities Commission rules shall govern.

Right-of-way shall mean land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the general public for street, highway, alley, pedestrian walkway, storm drainage, bicycle path or other purposes.

(Ord. No. 03-22, § 1, 6-24-03)

Any person performing any excavation, construction or involved in placement of any object, material, device over, under or across the public right-of-way or any activity performed within same, without first obtaining a permit, shall be guilty of a misdemeanor.

(Ord. No. 03-22, § 1, 6-24-03)

No person shall cause, place or maintain an encroachment in a public street without having first obtained a permit to do so from the Chief Building Official unless explicitly exempted by Section 5-10-204, "Exemptions from permit requirements."

(Ord. No. 03-22, § 1, 6-24-03)

The provisions of this chapter shall not prevent any public utility from maintaining any facility lawfully on or under any public street, or from making emergency excavations as may be necessary for the preservation of life or property.

(Ord. No. 03-22, § 1, 6-24-03)

Applications for permits required by the provisions of this chapter shall be filed not less than 48 hours before the work is proposed to be done or within 24 hours prior to placement of containers approved within this chapter.

(Ord. No. 03-22, § 1, 6-24-03)

Application for permits required by this chapter shall be filed with the Chief Building Official upon printed forms to be prescribed and supplied by the Chief Building Official. The application shall be signed by the applicant and shall state:

A. The name and address of the applicant.

B. The location, purpose, extent and nature of the proposed encroachment.

C. The time during which it is estimated that the encroachment will exist.

D. That the applicant agrees to indemnify, defend and save the City, its authorized agents, officers, representatives and employees, harmless from and against any and all penalties, liabilities or annoyances or loss resulting from any claims or court action and arising out of any accident, loss or damage to persons or property happening or occurring as a proximate result of any work undertaken under the permit granted pursuant to the application.

E. That the applicant agrees that any encroachment which is placed in the public right-of-way for which the permit is issued which at any future time interferes with use, repair or modification to any public facility; the applicant or his or her successors or assignees within 10 days after the receipt of a written notice from the Chief Building Official to do so, will at his or her own expense either remove such tank, pipe, conduit, duct, tunnel or other installation, or, subject to the approval of the Chief Building Official, relocate them to a site which may be designated by the Chief Building Official.

F. Any additional information that the Chief Building Official may deem necessary for the proper disposition of the application.

G. The permit procedure may be amended by the Chief Building Official where continuous activities for which encroachment permits are required by the same permittee occur. For such activities, an annual permit may be established subject to the conditions of this chapter in a similar manner as permits under Sections 5-10-201, 5-10-202, and 5-10-203.

(Ord. No. 03-22, § 1, 6-24-03)

A. General. Application for encroachment permits may be obtained at the Office of the Chief Building Official. Encroachment permit application forms and processing procedures shall be as established by the Chief Building Official.

B. Plans. The Chief Building Official may require such plans and details as deemed necessary to determine the exact location, nature, dimensions, duration and purpose of the desired encroachment. Improvement plans prepared by or under the direction of a registered civil engineer may be required by the Chief Building Official when deemed necessary. The form and content of all plans shall be in accordance with standard approved by the Director of Public Works.

C. Documents. When required by the Chief Building Official, the permittee shall provide detailed engineering calculations for which the design of any public improvements are based.

D. Consent of public agencies, utilities or adjacent property owners. The applicant shall be responsible for securing the consent of any other public agencies that may be required or for permissions from adjacent property owners for construction outside of the permittee's property boundary. Evidence of any required consents in a form satisfactory to the Chief Building Official shall be submitted with the permit application. The applicant shall be responsible for coordinating his or her work with the City and other public agencies as required.

(Ord. No. 03-22, § 1, 6-24-03)

If the applicant is other than the owner of the underlying fee, each such applicant for a permit shall submit to the Chief Building Official satisfactory proof of the applicant's right to use the highway for the purposes set forth in the application.

(Ord. No. 03-22, § 1, 6-24-03)

The Chief Building Official may require such changes in the application respecting the location, dimensions, character or number of the proposed excavations or fills as in his or her opinion may be necessary for the protection of the highway, the prevention of undue interference with traffic, or to assure the safety of persons using the highway.

(Ord. No. 03-22, § 1, 6-24-03)

A. Approval. Upon finding the requested permit conforms to the provisions of this chapter and other applicable provisions of the Irvine Municipal Code, the Chief Building Official may issue the permit.

B. Denial. If the Chief Building Official finds that the requested permit is in conflict with any provisions of the Irvine Municipal Code, the Chief Building Official shall deny the permit.

(Ord. No. 03-22, § 1, 6-24-03)

The permit required by this chapter shall be subject to the following conditions, which shall be stated thereon:

A. The permit must be kept at the site of the work and be shown, on demand, to any authorized representative of the City or any law enforcement office.

B. The permit shall authorize work to be performed only as to such portion of the highway over which the City has jurisdiction.

C. All work shall be performed in accordance with the provisions of this chapter and of all applicable laws, rules and regulations of the City and any other public agency and to the satisfaction of the Chief Building Official.

D. The permit shall be nontransferable.

E. The Chief Building Official may cancel the permit unless the work authorized therein is commenced within 60 days of the issuance of the permit and thereafter, in the opinion of the Chief Building Official, is diligently prosecuted to completion. Cancellation may be effected by giving written notice thereof by sending the same to the applicant by ordinary mail to the address shown on the application.

F. The Chief Building Official may, either at the time of the issuance of the permit or at any time thereafter until the completion of the work, prescribe such additional conditions as he or she may deem reasonably necessary for the protection of the highway or for the prevention of undue interference with traffic or to assure the safety of persons using the highway.

(Ord. No. 03-22, § 1, 6-24-03)

The Chief Building Official in issuing an encroachment permit may impose reasonable requirements or conditions upon the use of the permit as may be necessary to ensure the adequate and safe use of the public right-of-way and as may be necessary to ensure public property is restored to a condition equal to or better than that which existed prior to the encroachment.

(Ord. No. 03-22, § 1, 6-24-03)

The term of the encroachment permit shall be as set forth in the approved permit. An encroachment permit for maintaining an encroachment may be granted by the Chief Building Official for a period not to exceed six months from the date of issuance. An encroachment permit for a period of over six months may be granted by the Chief Building Official upon prior approval of such encroachment by resolution of the City Council. The Chief Building Official may terminate a continuing permit by written order mailed 15 days prior to this date of termination. The permit term may be renewed or extended at the discretion of the Chief Building Official.

(Ord. No. 03-22, § 1, 6-24-03)

A. Any encroachment permit may be revoked at any time at the option of the Chief Building Official whenever:

1. It appears to him or her that the continuing allowance of the encroachment, whether because of changed conditions or otherwise, interferes with full, adequate or safe public use of the right-of-way involved; or

2. The permittee fails to comply with or violates any City ordinance, City standards, safety regulations or any condition of the issuance of the encroachment permit.

B. Upon revocation of the encroachment permit, the permittee shall immediately restore the public right-of-way to a condition as required by the Chief Building Official within the time specified by the Chief Building Official; and the City may take any and all necessary action so required to restore the right-of-way. Any and all costs incurred by the City for enforcement of this section shall be at the expense of the permittee. Cost incurred by the City will be deducted from any deposits posted by the permittee and if necessary recovered by legal action.

(Ord. No. 03-22, § 1, 6-24-03)

The permittee shall keep any encroachment permit issued pursuant to this chapter at the site of the work, or in the cab or a vehicle when movement on a public street is involved. The encroachment permit shall be shown to any authorized representative of the Chief Building Official or law enforcement officer on demand.

(Ord. No. 03-22, § 1, 6-24-03)

The permittee shall agree to hold the City, its officers and employees, harmless from any and all liability, claims, suits or actions for any and all damages alleged to have been suffered by any person or property by reason of the permittee's installation, operation, maintenance or removal of the encroachment.

(Ord. No. 03-22, § 1, 6-24-03)

Encroachment permits shall be issued only to the person making application and may not be assigned to another person by the permittee. If any permittee assigns an encroachment permit to another person or entity, the permit will be revoked.

(Ord. No. 03-22, § 1, 6-24-03)

A permittee shall not make any excavation or fill under, on or across any public right-of-way other than that described in the application as approved by the Chief Building Official as set forth in the terms of the encroachment permit under the provisions of this chapter.

(Ord. No. 03-22, § 1, 6-24-03)

No changes may be made in the location, dimension, character or duration of the encroachment or use as granted by the encroachment permit except upon written authorization of the Chief Building Official.

(Ord. No. 03-22, § 1, 6-24-03)

Prior to the issuance of an encroachment permit, the applicant shall pay all fees provided by resolution of the City Council, which may be amended from time-to-time. Public utilities and public agencies may, at the option of the Chief Building Official, make payments for the fees billed by the City instead of the advance permit.

(Ord. No. 03-22, § 1, 6-24-03)

Prior to issuance of an encroachment permit, the permittee shall deposit with the City cash, or a certified or cashier's check, in the sum to be fixed by the Chief Building Official as sufficient to reimburse the City for costs of restoring the public right-of-way to its former condition and for the cost of inspection.

(Ord. No. 03-22, § 1, 6-24-03)

A. If there is no valid permit for an encroachment, or if the terms of the encroachment permit are not complied with, the Chief Building Official may immediately summarily abate, remove, or by notice may require the removal of any of the following encroachments:

1. An encroachment that obstructs or prevents the use of a City street by the public.

2. Any encroachment that consists of refuse, trash, garbage, construction debris or containers for refuse, trash, garbage or construction debris.

3. An encroachment that is a traffic hazard.

4. An encroachment that is an advertising sign or device of any description.

B. The Chief Building Official may return such encroachment to its owner, or otherwise dispose of it in his or her discretion; except that if the Chief Building Official 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 has provided a reasonable time for the owner to retrieve it under the provisions of this chapter. The return of such encroachment may be conditioned upon payment of an amount sufficient to reimburse the City for the expenses for removal and storage. The Chief Building Official may recover from the person causing any of the above encroachment, in an action brought in the name of the City for that purpose, the court costs of the City, the expense of such removal, and any other damages caused by the encroachment.

(Ord. No. 03-22, § 1, 6-24-03)

The Chief Building Official may, by notice, require the removal of any other encroachment not specified in Section 5-10-227 from any City street if there is no valid permit for an encroachment or if the terms of the permit are not complied with.

(Ord. No. 03-22, § 1, 6-24-03)

The notice referred to in Sections 5-10-227 and 5-10-228 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 of such occupant, owner or person if he or she resides in Orange County and is known to the person giving such notice. If the person upon whom notice is to be served does not reside in Orange County, 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 10 days.

(Ord. No. 03-22, § 1, 6-24-03)

If the property owner or owner of encroaching equipment denies that an encroachment exists, 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 shall commence, in any court of competent jurisdiction, an action in declaratory relief and abatement in the name of the City.

(Ord. No. 03-22, § 1, 6-24-03)

If the property owner fails to deny that an encroachment exists, and if the encroachment is not removed within 10 days from and after service or posting of the notice, the City may remove the encroachment at the expense of the owner of the encroachment or at the expense of any other person causing the encroachment to exist.

(Ord. No. 03-22, § 1, 6-24-03)

Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to fines and penalties as prescribed in Section 4-13-201 of this Code.

(Ord. No. 03-22, § 1, 6-24-03)

A. Unless the Chief Building Official shall have authorized the applicant to perform the resurfacing or repair of the surface of any highway which may be removed in part or damaged by the proposed excavation or fill, each applicant shall, in addition to the issuance fee, deposit with the Chief Building Official the estimated cost of resurfacing or repairing the surface of the highway which may be damaged or destroyed. The special deposit required hereunder shall in no event be less than an amount established by resolution of the City Council, which may be amended from time-to-time.

B. In cases where the applicant is granted authority to make the repairs required under this chapter, the Chief Building Official may, in order to ensure the completion of said repairs in a satisfactory manner, require the applicant to furnish a surety bond. Such bond shall be executed by a surety company authorized to transact business in the State and shall be in an amount equal to twice the estimated cost of performing the work authorized; provided, however, that the minimum amount of said bond shall not be less than an amount established by resolution of the City Council, which may be amended from time-to-time, nor the minimum period less than one year. The condition of said bond shall be that the applicant will perform the work authorized by any permit issued pursuant to this chapter in a good and workmanlike manner and to the satisfaction of the Chief Building Official.

(Ord. No. 03-22, § 1, 6-24-03)

In lieu of making the special deposit required by Section 5-10-234, the applicant may make and maintain with the Chief Building Official a general deposit in an amount estimated by the Chief Building Official to be sufficient to pay for the cost of permit issuance fees, inspection fees and expected repairs occasioned by future excavations or fills.

(Ord. No. 03-22, § 1, 6-24-03)

Whenever in this chapter any costs are to be charged to any permittee and no other method for the calculation thereof is specified, such costs shall be the actual cost, including the proportionate part of the salaries, wages or other compensation of any deputy or employee, plus the cost of overhead, not to exceed 15 percent of the total cost.

(Ord. No. 03-22, § 1, 6-24-03)

After completion of the refilling and compacting of the backfill material in the excavation, and the removal of the encroachment, the permittee shall promptly replace, with temporary or permanent patching material, or repair any portion of the highway surface removed or damaged by the excavation, fill or construction operations not specified elsewhere herein, to the satisfaction of the Chief Building Official; or the Chief Building Official may at his or her option elect to do the surfacing or repairing himself or herself.

(Ord. No. 03-22, § 1, 6-24-03)

If at any time subsequent to the first repair of a surface of a highway damaged or destroyed by any excavation or fill in such highway, it becomes necessary again to repair such surface due to settlement or any other cause directly attributable to such excavation or fill, the permittee shall perform such additional repairs at its expense, or at the City's option, pay to the City the cost of such additional repairs made by the Chief Building Official. Any such cost paid to the City shall be computed by the Chief Building Official as provided in Section 5-10-234 or Section 5-10-237 of this chapter, whichever in the judgment of the Chief Building Official will most fairly compensate the City for the expenses incurred by it.

(Ord. No. 03-22, § 1, 6-24-03)

If the United States, this State, this or any other County, any municipal corporation, school district or other public body files with the Chief Building Official a written guarantee of payment of all costs for which they may become liable to the City hereunder, then no deposit for costs shall be required from such persons. No permit issuance fee shall be required of any public agency entitled to exemption therefrom pursuant to Government Code § 6103.

(Ord. No. 03-22, § 1, 6-24-03)

The Chief Building Official may, either at the time of the issuance of the encroachment permit or at the time thereafter, elect to do the resurfacing or repair of any highway surface removed or damaged by the proposed excavation or fill pursuant to an encroachment permit hereunder.

(Ord. No. 03-22, § 1, 6-24-03)

All streets, alleys, sidewalks and other public ways within the City shall be constructed, reconstructed, repaired and maintained in accordance with specifications and plans therefor promulgated by the Director of Public Works, approved by the City Council and on file in the Office of the City Clerk.

(Ord. No. 03-22, § 1, 6-24-03)

A. Public streets. Public streets and highways, after receiving official acceptance by the City Council, shall be maintained by the City of Irvine.

B. Private streets. Private streets and highways shall be maintained by the recorded owner(s) free of defects and in a clean condition at least equivalent to that of comparable public streets.

C. Unaccepted streets and highways. All public street and highway construction prior to City acceptance and all private streets and highways under control of a developer:

1. Shall be maintained in a clean and safe condition by the owner of record;

2. Shall have signs posted at all street intersections and tract entrances. The signs shall be installed prior to any occupancy and shall state, with minimum three-inch letters, as follows:

MAINTENANCE OF THIS STREET AND RIGHT-OF-WAY ARE DEVELOPER RESPONSIBILITY.

DEVELOPER: ___________

PHONE: ___________

3. Shall have inspection approval within 60 days after occupancy is authorized for any adjacent property unless otherwise approved by the Chief Building Official.

(Ord. No. 03-22, § 1, 6-24-03)

A. All openings and excavations in streets and highways shall be backfilled immediately after completion of work pursuant to encroachment permit approval.

B. Where temporary patching occurs in streets, permanent approved paving repairs shall be affected within 30 days thereafter. Where landscaping excavation occurs in a right-of-way, it shall be restored to its original condition within 30 days.

C. The Director of Public Works and the Chief Building Official shall retain the right to designate shorter time limits when necessary for the public safety, health or welfare.

D. All work described in this section shall comply with the provisions described in this chapter.

E. A cash bond or equivalent may be required to assure timely completion of work.

(Ord. No. 03-22, § 1, 6-24-03)

A. All detours caused by construction on City streets shall have a detour plan approved by the City prior to construction. Detours shall be defined as the closure of any part of the traveled right-of-way.

Exception: Emergency repairs by utility companies shall be exempted.

B. The minimum traffic delineation shall conform to the State of California "Standard Specifications" (latest edition approved by the City), the California "Manual of Uniform Traffic Control Devices (MUTCD)" (latest edition approved by the City), and the "Work Area Traffic Control Handbook" published by Building News Services (latest edition approved by the City). Where City inspectors or transportation engineers or police find unusual conditions, added requirements may be specified and shall be provided by the contractor, installer or entity conducting construction or repair activities.

C. The City may restrict the use of, or close, any right-of-way whenever persons authorized by the City consider such closing or restriction of use necessary:

1. For the protection of the public.

2. For the protection of such street or related area from damage during storms or during construction, improvement or maintenance operations thereon.

3. To minimize overall impact to affected traffic circulation due to the construction, improvement or maintenance operation.

D. To notify the public that a City street is closed or its use restricted, the City may require the applicant to:

1. Erect suitable barriers or obstructions upon such right-of-way.

2. Post warnings and notices of the condition of any such highway.

3. Post signs for the direction or traffic upon it, or to or upon any other highway or detour open to public travel.

4. Place warning devices on such highway.

5. Assign a flagman to warn, detour or direct traffic on such highway.

E. Any person who willfully fails to observe any sign, marker, warning, notice or direction placed or given under provisions of this Code is guilty of a misdemeanor.

(Ord. No. 03-22, § 1, 6-24-03)