Jackson Municipal Code Ch. 12.08 Encroachments

Whenever in this chapter the words or phrases defined in this section are used, they shall have the following respective meanings:

"Adjoining property"

means the private property located immediately adjacent to the section of public right-of-way to be encroached upon.

"Applicant"

means any person, firm, partnership, association, corporation, company, entity or organization of any kind who proposes to encroach upon a public place, right-of-way, sidewalk or street and who has applied for a permit for the proposed encroachment, pursuant to the provisions of this chapter.

"City engineer"

means the city engineer of the City of Jackson or his/her designee.

"City inspector"

means the city's senior building or public works inspector or his/her designee.

"Encroachment area"

means the section of public right-of-way located between the property line and the edge of the walkway or roadway.

"Encroachment"

means and includes any paving, obstruction, fence, stand, building, entry monument, or any structure or object of any kind or character, including, but not limited to, a window in violation of Section 12.08.010 or any improvement requiring an encroachment permit pursuant to Section 12.08.020, which is placed on, in, along, under, over or across a public place, right-of-way, sidewalk or street by or for the use of the adjoining property.

"Encroachment work"

means the work of constructing, placing or installing an encroachment.

"Excavation"

means any opening in the surface of a public place, right-of-way, sidewalk or street made in any manner whatsoever. The term shall also include any excavation on private property which removes or imperils the lateral support of a public place, right-of-way, sidewalk or street.

"Occupy"

means owning or operating any facilities that are located in rights-of-way.

"Person"

means any living individual, public or private corporation, joint venture, partnership, other business entity, the state or a political subdivision of the state.

"Public walkway"

means the portion of the public right-of-way improved and designated by the city for pedestrian travel.

"Right-of-way"

means the surface and space in, on, above, through and below any real property in which the City of Jackson has a legal or equitable interest whether held in fee or any other estate or interest, or as a trustee for the public, including, but not limited to, any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, curb, parkway, river, tunnel, viaduct, bridge, public easement, or dedicated easement.

"Usable surface"

means a relatively level surface intended for active recreation, passive occupation, or pedestrian access, including, but not limited to, lawns, patios and decks, but excluding a walkway not exceeding forty-four inches in width that provides access from the public walkway to private property.

"Utility district" or "public utility"

means any entity as defined in Public Utilities Code Section 216 or the state or any political subdivision of the state providing substantially similar services.

(Ord. 39, 1908; Ord. 659, 2009)

It is unlawful and a misdemeanor for any person to construct or permit to remain on premises belonging to him or her, or under his or her possession or control, any bow, or other window, projecting into or over any sidewalk from the first story of any building on the premises, within the city limits and without an encroachment permit issued pursuant to this chapter.

(Ord. 39, 1908; Ord. 659, 2009)

Except as authorized by an encroachment permit issued pursuant to this chapter, it is unlawful and a misdemeanor for any person to erect and maintain, or permit to remain any post, pole or support of any kind imbedded in, attached to or connected with, sidewalks or streets of the city for the support of any porch, awning, roof, shelter, veranda or balcony in front of any premises owned or controlled by him or her. Except as authorized by an encroachment permit issued pursuant to this chapter, all porches, awnings, roofs, shelters, verandas and balconies shall be at least ten feet above the main traveled portion of sidewalks and be securely built into the buildings of which they form a part, or be supported by iron brackets, or other contrivances, securely and safely attached to buildings.

(Ord. 69, 1912; Ord. 659, 2009)

It shall be a violation of this chapter for any person to construct, create, occupy or use an encroachment in the public right-of-way without an encroachment permit. To the extent permitted by law the issuance of such a permit shall be discretionary and may be denied or revoked without cause. Application of this chapter shall include, but not be limited to, private improvements, long-term commercial use and commercial sidewalk dining, temporary access for installation of private street improvements and all other intrusions into the public right-of-way whether temporary or permanent.

(Ord. 316, 1972; Ord. 659, 2009)

The city council may establish from time to time by resolution, the procedures to be followed for requesting and obtaining written approval to encroach upon city property. The city council may also, from time to time by resolution, adopt such regulations, conditions, standards or other requirements as it deems best and advisable in the circumstances consistent with the objectives of this chapter.

(Ord. 316, 1972; Ord. 659, 2009)

Any person shall submit to the city engineer an application for an encroachment permit, approval of which permit is required by the engineer prior to any encroachment as defined in this chapter.

A. Blanket Permit. Any utility district or public utility is entitled to apply for a blanket permit issued by the city engineer, renewable annually, for the installation and maintenance of its facilities located within the city street right-of-way outside of paved roadway. Any utility district or public utility that has had a permit revoked for failure to comply with the provisions of this code may obtain a permit only after furnishing a bond.

B. Content of Permit. Every applicant shall state in detail the information required on the forms provided by the city, and all applicants for a permit other than a blanket permit shall state the following:

1. The location, dimension, purpose, extent and nature of the encroachment or encroachments;

2. The time during which it is estimated the excavation or obstruction will exist;

3. Such other information as may be required by the engineer including a designation of tie-in points.

C. Non-Utility Applicants. All permit applicants and drawings appurtenant thereto, other than those submitted annually by public utilities, shall be submitted to the city engineer for his/her approval prior to the date for commencement of work involving the encroachment.

D. Utility Applicants. Public utilities who have been granted annual permits shall nevertheless submit a working sketch or plat for the city engineer's review and signature of approval at least ten days prior to the commencement of any work involving the encroachment. Public utilities with minor jobs and services involving an encroachment shall be excepted from this requirement with regard to those jobs only.

E. Actual Notification. All applicants and permittees shall provide the city with actual notifications, by telephone call or post card, to start work on the encroachment preferably ten days but in no event less than forty-eight hours in advance of commencement of the work.

F. Emergency Exceptions. Notwithstanding the requirements contained in subsections D and E of this section, in the event of an emergency the applicant shall notify the city of the encroachment at the time of the occurrence or as soon thereafter as possible, providing that it was otherwise impossible for the utility to give notification in compliance with subsection E of this section, or to provide work sketch pursuant to subsection D of this section.

G. Permit Fee. The city council shall establish by resolution a fee for all encroachment permits based on the city's costs of administration and inspection of said encroachments. And at least once a year the city council shall set a cost per square foot of resurfacing as recommended by the city engineer.

H. Issuance. After consulting with the city inspector, the city engineer shall issue a written decision regarding each encroachment permit application. If the decision grants the encroachment, it shall set forth the conditions to be imposed. The decision of the city engineer shall be final ten calendar days after mailing a copy of the decision to the applicant and shall be consistent with any regulations, conditions, standards or other requirements adopted by the city council pursuant to Section 12.08.040. In the event the city engineer issues an encroachment permit and the applicant wishes to challenge a condition of the permit, the applicant may appeal the decision in the same manner as requesting an exception pursuant to subsection I.

I. Exceptions. Any applicant wishes to appeal the city engineer's decision shall request such appeal in writing to the city council within ten working days of the mailing of the city engineer's decision. Applications which are inconsistent with any regulations, conditions, standards or other requirements adopted by the city council pursuant to Section 12.08.040 must be appealed to and approved by the city council. A notice shall be sent to the property owners whose lots' front property lines are within three hundred feet of the subject encroachment area site at least ten calendar days prior to each body's consideration of the exception request. The notice will describe the proposed encroachment, make the plans available for review, and set a deadline for registering objections. Upon consideration of such appeal application, the city council may approve, modify, or disapprove the application for encroachment. The action of the city council shall be final.

J. Revocation. The city engineer or the city council may revoke any encroachment permit for noncompliance with the conditions set forth in granting such encroachment. A written notice shall be mailed to the permittee of such revocation. Within ten working days of mailing of such notice of revocation to the permittee, a written appeal of such action may be filed. Any such appeal shall be made to the city council and the council's determination of the matter shall be final.

(Ord. 316, 1972; Ord. 447, 1980; Ord. 659, 2009)

Violation of this chapter shall be punishable as a misdemeanor as set forth in Section 1.20.010 of this code. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a separate violation of such provision.

(Ord. 39, 1908; Ord. 69, 1912; Ord. 316, 1972; Ord. 334, 1973; Ord. 659, 2009)

Upon completion of the encroachment work authorized by a permit, the permittee shall restore the right-of-way or street by replacing, repairing or rebuilding it in accordance with the specifications or any special requirement included in the permit, but not less than to its original condition before the encroachment work was commenced and in all cases in good usable quality. The permittee shall remove all obstructions, materials and debris upon the right-of-way and street, and shall do any other work necessary to restore the right-of-way and street to a safe and usable condition, as directed by the city engineer. Where excavation occurs within areas already paved, the city engineer may require temporary paving to be installed within four hours after the excavation area is backfilled. In the event that the permittee fails to act promptly to restore the right-of-way and/or street as provided in this section, or should the nature of any damage to the right-of-way or street require restoration before the permittee can be notified or can respond to notification, the city engineer may, at his or her option, make the necessary restoration and the permittee shall reimburse the city for the full cost of such work, and such cost shall be a lien upon the permittee's adjacent real property.

In addition, if upon completion of the backfilling of the excavation the permittee has cut an area of three hundred square feet, more or less, the permittee shall paint the outside perimeters of the cut area to correspond with the underground service alert colors.

The area included within the painted perimeter shall be calculated in square footage and the square footage commitment for resurfacing shall be mutually agreeable between the permittee and the city engineer at the time of final inspection.

In case of an excavation involving more than one utility company, the U.S.A. color of the coordinating company shall be painted around the encroachment area.

(Ord. 447, 1980; Ord. 659, 2009)

The city inspector shall require that inspections be completed before commencement, and after completion of encroachment work. Inspections while encroachment work is in progress shall be completed as determined to be appropriate by the city inspector or city engineer. Such inspection fee shall be included in the permit fee. No cost of inspection shall be charged to any public corporation provided, however, that this section shall not operate to prevent charges made pursuant to Government Code Section 6103.6.

(Ord. 447, 1980; Ord. 659, 2009)

A. The permittee shall, by acceptance of the permit, exercise reasonable care to properly maintain any encroachment placed by it in the city right-of-way, and to properly inspect and immediately repair it, making good any damage to the street which occurs as a result of the encroachment or as a result of the work done under this permit.

B. If the city has made a commitment to repave an area for a permittee and the permittee has submitted payment therefor to the city, then the city shall assume all reasonable liability for the resurfacing or patching of the encroachment eight months after the date of the commitment to repave. Reasonable liability by the city for the encroachment shall not include trench or compaction failure or other similar type repair.

(Ord. 447, 1980; Ord. 659, 2009)

A. Existing encroachments which do not conform to this Chapter 12.08 and any regulations, conditions, standards or other requirements adopted pursuant to Section 12.08.040 must be removed or brought into conformance if the related structure on the adjoining property is significantly remodeled or reconstructed or if any new significant construction is proposed in the public right-of-way. Existing permitted improvements that have been made nonconforming by changes to these standards may otherwise remain provided any nonconforming element is not increased or expanded. The intent is to cause nonconforming encroachments to be brought into conformity concurrent with major alterations or entirely new structures constructed on adjoining private property.

B. Routine maintenance and repair may be performed on a nonconforming encroachment structure or improvement and replacement with a comparable improvement is permitted upon demonstration that the encroachment is deteriorated and creating an unsafe condition.

(Ord. 447, 1980; Ord. 659, 2009)

Any permit issued under this chapter shall contain a provision that in the event that future improvement of the right-of-way necessitates the relocation of such encroachment, the permittee will relocate the same at his or her sole expense, providing that the project necessitating the relocation is publicly funded. In said event, the city engineer shall serve upon the permittee a written demand specifying the place of relocation and a reasonable time within which the work of relocation must be completed.

(Ord. 447, 1980; Ord. 659, 2009)

In addition to any other remedies provided in this section, any violation of this chapter may be enforced by civil action brought by the city. In any such action, the city may seek, as appropriate, any or all of the following remedies: a temporary and/or permanent injunction; assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this section; costs incurred in removing, correcting, or terminating the adverse effects resulting from violation; compensatory damages; and attorney fees.

(Ord. 447, 1980; Ord. 659, 2009)

The issuance of a permit under this chapter shall not be construed as imposing any liability upon the city or upon any of its officers or employees by reason of damages or injury to persons or property resulting from any excavating or obstruction authorized by the permit; and any cleanup or other work related to any excavation which is not satisfactorily completed may be completed by the city at the permittee's expense.

A. Any encroachment granted pursuant to the provisions of this chapter shall be developed and utilized within a period not to exceed twelve months from and after the date of the granting of such encroachment, and, if not so developed and utilized, such encroachment automatically shall become null and void at the expiration of such twelve-month period.

B. The permittee may apply in writing for one extension of time, not to exceed six months, within which to develop and use such encroachment. The city engineer, in his or her sole discretion after due consideration, shall either grant or deny the extension of time for such development and use.

(Ord. 659, 2009)