Laguna Hills Municipal Code Art. I Excavations, Encroachments, and Obstructions

The following words and phrases when used in this chapter shall have the meanings provided in this section:

“Carriage walk”

means a walk within the parkway that connects a private walk to the street or sidewalk.

“City standard plans” or “standard plans”

means the county of Orange Public Facilities and Resources Department (PF&RD) standard plans, as may be amended from time to time by the Director.

“Director”

means the Public Services Director of the city of Laguna Hills or the designee of the Public Services Director.

“Encroachment”

means any temporary or permanent structure, object, or opening that is located upon, along, across, over, under, through, or using any public place that prevents, obstructs, or interferes in any way with the normal public use of such public place as determined by the city. Encroachments include but are not limited to landscaping, hardscape, planters, walls, fences, benches, poles, underground conduits, substructures, monitoring wells, signs, lights, mailboxes, commercial parcel delivery/drop-off boxes, trash dumpsters, construction storage bins, and construction materials.

“Encroachment agreement”

means an agreement between the permittee and the city that outlines specific conditions of approval for an encroachment, which must be abided by until the encroachment is removed.

“Established sidewalk area”

means the portion of the parkway between the back of curb and within five feet behind the back of curb in public street right-of-way where no sidewalk exists. If sidewalk exists, the established sidewalk area is the area between the face of curb and the back of the sidewalk.

“Excavation”

means any opening under, in, or across the surface of a public place made in any manner whatsoever, except an opening into a lawful structure below the surface of a public place, the top of which is flush with the adjoining surface and so constructed as to permit frequent openings without injury or damage to the public place, such as a vault.

“Facility”

means pipe, pipeline, tube, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, wire, tower, pole, pole line, anchor, cable, junction box, transform or any other material, structure, or object of any kind or character, whether enumerated in this chapter or not, which is or may be lawfully constructed, left, placed or maintained in, upon, along, across, under or over any public place.

“Non-standard improvements”

means all permitted improvements that are privately owned or maintained within city public places including but not limited to planters, walls, fences, retaining walls, gates, awnings, marquees, and decorative improvements. The term “nonstandard improvements” also includes improvements, which are not constructed in strict conformance with the city standard plans.

“Parkway”

means the portion of public right-of-way between the curb and the edge of the public right-of-way where the right-of-way abuts adjacent private property, which may contain city street trees and sidewalks, and privately maintained landscape and permitted encroachments.

“PCC”

means portland cement concrete.

“Permit” or “encroachment permit”

means an authorization to construct, install, or maintain an improvement temporarily or permanently within a public place, as approved by the Director.

“Permittee”

means the person responsible for ensuring work under an encroachment permit is completed to the satisfaction of the Director.

“Public agency”

means and includes the Unite States or any department or agency thereof, the state of California or any department or agency thereof, county, municipal corporation, or public district.

“Public place”

means any public highway, street, easement, way, place, alley, sidewalk, park, square, plaza, open space, creek, public facility, or any other similar public property owned by the city or controlled by the Director and dedicated to public use which has been acquired by or is otherwise owned by the city.

“Sidewalk”

means the portion of public right-of-way within the parkway along the frontage of any property and improved to accommodate its use for public pedestrian purposes.

“Standard improvements”

means curb, gutter, sidewalk, street trees, street pavement, alley pavement, driveway approaches, and alley approaches in conformance with adopted city standard plans.

“Standard specifications for public works construction”

means the latest edition of the “Greenbook” of construction standards as written and promulgated by Public Works Standards, Inc. as published by BNI Building News and as modified by the Director.

“Streetscape furnishings”

means benches, fountains, statuary, ponds, water features, artifacts or decorative amenities, and similar improvements or features.

“Substructure”

means any pipe, conduit, duct, tunnel, manhole, vault, buried cable, or wire, or any other similar structure located below the surface of any public place.

“Surface treatments”

means any hardscape material or feature consisting of concrete, asphalt, block, brick, stone, or similar material.

“Temporary encroachments”

means permitted temporary obstructions and alterations within the public right-of-way including, but not limited to, refuse bins, material storage, traffic control, well access, utility vault access, or other access to existing facilities in the public right-of-way.

“Utility”

means a private company and/or corporation operating under the regulation of the Public Utilities Commission, or a municipal or county department or other government agency engaged in the provision of utility services to the general public.

“Vertical encroachment”

means an encroachment that is wholly or partially above ground, including, but not limited to, fences, walls, steps, gates, gate motor boxes, gate arms, planters, boulder, or other facilities that project over or into the right-of-way.

“Work Area Traffic Control Handbook”

means the latest edition of the Work Area Traffic Control Handbook as written and promulgated by the American Public Works Association, Southern California Chapter, as published by BNI Building News, Inc. and as modified by the Director.

(Ord. 2004-1 § 2 (part))

The purpose of this chapter is to establish regulations to control encroachments into public places by requiring encroachment permits and to establish measures for the protection of life and property, including traffic and pedestrian safeguards. Additionally, this chapter regulates backfilling and resurfacing of excavations, prescribes application procedures for permit issuance, establishes bonding and liability requirements, and prescribes penalties for violations of its provisions.

(Ord. 2004-1 § 2 (part))

No person shall excavate or fill any excavation; construct, reconstruct, or repair any curb, sidewalk, gutter, roadway surface, pavement, sanitary sewer, sewage works, storm drain, culvert, stairway, retaining wall or similar structure, building or improvement; or perform any grading or filling; or subject any water line, sewer, or storm drain to excessive live or dead loading; or temporary placement of building materials and bins; temporarily block, obstruct, or constrict public access; or place an encroachment; in any public place unless he or she first obtains a permit to do so from the Director.

(Ord. 2004-1 § 2 (part))

Complete applications for permits shall be filed with the Director not less than forty-eight (48) hours before the work is proposed to commence. Any person who shall commence any work, for which a permit is required by this article, without first having obtained a permit shall stop all work and apply for such permit. The fees for this permit shall be doubled in accordance with the cityadopted fee resolution.

(Ord. 2004-1 § 2 (part))

A. No permit shall be issued unless a written application (on a form provided by the Director) for the issuance of a permit is submitted to the Director.

The written application shall be signed by the applicant and shall state:

1. The name and address and principal place of business of the applicant;

2. The authority of applicant to occupy the public place for which the permit is sought;

3. The location, purpose, extent and nature of the proposed excavation, fill, obstruction, or encroachment;

4. The dimensions of the proposed excavation, fill, obstruction, or encroachment; and

5. The approximate time, which will be required to complete such work, including backfilling said excavation and removing all obstructions, material and debris, and a plot plan of the proposed work.

B. The Director is authorized to issue permits to encroach in and upon public areas; provided, however, the permit shall not be issued unless the permit is terminable on not more than ninety (90) days’ notice. The decision of the Director approving or denying any permit application shall be subject to review by the City Council upon the request of any member of the City Council or upon the written request of any interested person filed with the City Clerk not later than fifteen (15) days following the date of the Director’s decision. The City Council may grant encroachment permits, which are terminable no longer than ninety (90) days’ notice.

C. The Director for good and sufficient reasons may grant an extension of time for the permit. The application, when approved and signed by the Director, shall constitute a permit.

D. Whenever encroachment agreements are required or permitted pursuant to the provisions of this chapter for any excavations, encroachments, and/or obstructions, the City Manager, or the City Manager’s designee, is authorized to execute such encroachment agreements on behalf of the city. In all cases, the Director shall require the applicant to enter into an encroachment agreement approved by the City Attorney. Encroachment Agreements shall be recorded with the County Recorder and shall run with the land.

(Ord. 2004-1 § 2 (part))

Applications for encroachment permits shall be accompanied by a plat showing the location, dimension, nature of the proposed excavation, fill, obstruction, or encroachment, and any other detail, which the Director may require. Applications for encroachment agreements may be required to include scale drawings suitable for recordation.

(Ord. 2004-1 § 2 (part))

If the applicant is other than the owner of the underlying fee of the property next to the public place that is the subject of the permit application, the applicant for a permit shall submit to the Director satisfactory proof of the applicant’s right to use the public place for the purposes set forth in the application.

(Ord. 2004-1 § 2 (part))

The Director may require such changes in the application respecting the location, dimensions, character or number of the proposed excavations, fills, obstructions, or encroachments 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 public place.

(Ord. 2004-1 § 2 (part))

The following excavations, encroachments, and obstructions are prohibited:

A. Vertical structural encroachments of any kind located in the sidewalk;

B. Vertical structural encroachments which are more than seventy-two (72) inches in height, as measured from the top of curb elevation or, if a sidewalk is present, from sidewalk elevation, and located within the parkway;

C. Street improvements including curb, gutter, pavement, sidewalk, and driveway approaches except as permitted pursuant to Section 12-12.100;

D. Private dwellings or appendages including raised patios and decks;

E. Private lighting systems except when approved by City Council, Planning Agency, the Director and/or special agreement, including conditions of approvals of entitlements pursuant to Title 9 of this code;

F. Parkway surfacing of loose rock, gravel, or any other material other than standard concrete except as permitted pursuant to Section 12-12.100;

G. Structural or architectural elements of adjacent improvements including, but not limited to, balconies, stairways, and overhangs;

H. Marquees, awnings, and architectural projections over the parkway;

I. Structural elements of adjacent improvements or dwelling below grade including, but not limited to, building foundations, wall footings, and anchors projecting greater than twelve (12) inches into the parkway and less than eight feet below grade;

J. Mailboxes where the mailbox base construction length and width exceeds the length or width of the mailbox, or twenty-four (24) inches in length or width, whichever is less or so intrudes into or over the sidewalk so as to reduce the effective width of the sidewalk to less than four feet;

K. Landscaping, except street trees, within the area of the parkway between the street curb and the sidewalk that impedes passenger access to vehicles parking parallel to the curb or that creates a visibility constraint as determined by the Director;

L. Planters, walls, or surfacing not installed at grade within the parkway between the street curb and the sidewalk;

M. Surface treatments within the parkway between the back of sidewalk and the adjacent property line or permitted encroachment except for as allowed in Section 12-12.350;

N. Overhanging landscaping including tree branches that encroach into a parkway, sidewalk, alley, or street in such a way as to impede sight distance, vehicle use, or pedestrian use as determined by the Director;

O. Streetscape furnishings;

P. Telephones, kiosks, and similar fixed communications/electronic informational devices within a residential zone;

Q. Above ground irrigation systems except as required by grading plan requirements for temporary erosion control systems.

(Ord. 2004-1 § 2 (part))

The following excavations, encroachments, and obstructions within a public place are permitted subject to the applicant applying for and securing a permit from the Director prior to commencing construction:

A. Standard improvements;

B. Temporary excavations, not including those allowed without permit pursuant to Section 12-12.110;

C. Cutting of asphalt concrete, concrete, or other surface materials owned by the city in the public right-of-way;

D. Carriage walks made of natural-colored PCC, not to exceed one walk per twenty-five (25) feet of frontage, with a combined paved width not to exceed twenty (20) percent of the property frontage;

E. Utility facilities in accordance with city standard plans. The placement of utility pedestals shall be at the back of sidewalks on arterials and major pedestrian thoroughfares without zero setbacks. In commercial zones, there shall be at least five feet of clear sidewalk width and/or pedestals shall be placed in the parkway outside of the sidewalk area;

F. Temporary storage of materials, placement of storage bins, or waste receptacles;

G. Street tree planting, trimming, and removal;

H. Street closures or restrictions with an approved traffic control plan, if required, by the Director;

I. Photography, filming, or video taping involving the use of a tripod, sound equipment, or any other equipment or device that in way restricts or limits public access to or over a public place;

J. Access to private property over the parkway when no structural access such as a driveway apron is present;

K. Curb cores and placement of drainage devices including, but not limited to, catch basins and storm drains.

(Ord. 2004-1 § 2 (part))

The following excavations, encroachments, and obstructions within a public place are permitted subject to the applicant applying for and securing a permit from the Director and entering into an encroachment agreement with the city prior to commencing construction:

A. Residential driveways that do not conform to the requirements of Section 12-12.310;

B. Commercial driveways that do not conform to the requirements of Section 12-12.320;

C. Carriage walks that do not conform to the requirements of Section 12-12.330;

D. Non-standard improvements as may be specified in an approved conditional use permit, development agreement, or special agreement as may be identified or required by the City Council;

E. Surface treatments, in conformance with Section 12-12.350, within the parkway area between the street curb and sidewalk for decorative purposes installed at grade and in conjunction with landscaping, irrigation, and street trees, so long as such treatments do not exceed twenty-five (25) percent of such parkway area, not including driveways and carriage walks;

F. Vertical structural encroachments, which are equal to or less than forty-two (42) inches in height, as measured from the top of curb elevation or from sidewalk elevation (where sidewalk exists), and are located outside the established sidewalk area, but within the parkway in front of the front yard of a private residential property;

G. Vertical structural encroachments, which are more than forty-two (42) inches in height up to and including seventy-two (72) inches in height, as measured from the top of curb elevation or from sidewalk elevation (where sidewalk exists), and are located outside the established sidewalk area, but within the parkway in front of the sideyard of a private residential property;

H. Telephones, kiosks, and similar fixed communications/electronic informational devices in commercially zoned areas are permitted only by special approval of the City Council;

I. Mailboxes, if the mailbox does not leave four feet of clear sidewalk width or space around the mailbox. If a sidewalk exists, the owner of the mailbox shall construct sidewalk around the mailbox such that a clear width of four feet is created as a pedestrian path around the mailbox;

J. Commercial parcel delivery/drop-off boxes.

(Ord. 2004-1 § 2 (part))

The following excavations, encroachments, and obstructions within a public place do not require a permit from the Director prior to construction:

A. Parkway lawn, ground cover, or shrubs within the area between the street curb and the sidewalk not exceeding one foot in height as measured from the top of the adjacent curb;

B. Parkway lawn, ground cover, or shrubs within the parkway, except in the area noted in subsection A of this section, not exceeding forty-two (42) inches in height as measured from the top of the adjacent curb or sidewalk;

C. Below grade irrigation systems utilizing pop-up irrigation heads within the parkway. All irrigation components within the parkway shall be below existing grade. Irrigation heads shall not exceed one-half inch above the parkway surface. All valve boxes shall be flush with existing grades and shall not be located within the sidewalk. The adjacent property owner shall be responsible for maintaining the landscaping and irrigation system in a manner acceptable to the Director;

D. Encroachments in existence on December 1, 2003, which do not conform to the standards set forth in this article subject to the provisions of Section 12-12.210.

(Ord. 2004-1 § 2 (part))

The Director may, either at the time of the issuance of the permit or at any time thereafter, elect to do the resurfacing or repair of any highway surface removed or damaged by the proposed excavation or obstruction pursuant to a permit issued under the provisions of this chapter. All costs associated with such work shall be born by the permittee and shall be charged against any deposit or other guarantee posted or provided by the permittee.

(Ord. 2004-1 § 2 (part))

An applicant for a permit for improvement, construction and repair shall pay fees for processing, engineering and inspection as established by resolution of the City Council.

(Ord. 2004-1 § 2 (part))

A. Permittee shall indemnify, defend, and save the city, its authorized agents, officers, representatives, and employees, harmless from and against any and all penalties, liabilities, or loss resulting from claims or court action and arising out of any accident, loss, or damages to persons or property happening or occurring as a proximate result of any work undertaken under a permit granted pursuant to this chapter.

B. Additionally, the permittee shall be responsible for all liability imposed by law for personal injury or property damage caused by work performed under the permit or caused by failure on permittee’s part to perform the permittee’s maintenance obligations under such permit.

C. If any liability claim is made against the city, its officers or employees, permitted shall defend, indemnify, and hold them, and each of them, harmless from such claim insofar as permitted under law. The Director may require proof of financial responsibility to meet the permittee’s obligation under this section.

D. The owner of a parcel of real property which fronts on any portion of a public right-of-way and who installed or maintains any encroachment thereon, shall repair and maintain the encroachment at the owner’s cost and expense. The owner shall have a duty to the general public, including travelers on the public right-of-way to repair and maintain the encroachment in a reasonably safe condition. The owner shall have the primary and exclusive duty to perform such repair and maintenance, whether or not the Director has notified the owner of the need for such repairs or maintenance or has performed similar repairs or maintenance in the past. The failure of an owner to perform the duties and obligations established in this subsection or the performance of such duties and obligations by an owner in a negligent manner, shall constitute such duties and obligations by an owner in a negligent manner, shall constitute negligence. An owner shall be liable to any member of the general public, any private property, or the property of the city if the owner’s negligence under this subsection is a proximate cause of any injury or damage.

E. This chapter shall not be construed as imposing upon the city or any official or employee any liability or responsibility for damages to any person injured by the performance of any encroachment work for which an encroachment permit is issued by this chapter, nor shall the city or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized by this chapter the issuance of any permit or the approval of any encroachment work. The city shall not be liable for an injury or damage caused by the negligence of an owner of property that fronts any public right-of-way.

(Ord. 2004-1 § 2 (part))

If required by the Director, Permittee shall provide a cash deposit, surety bond, or other acceptable security in the amount determined by the Director as sufficient to reimburse the city for the costs of restoring the public place to its original condition in the event permittee fails to do so or fails to perform the work in workman-like manner to the satisfaction of the Director.

(Ord. 2004-1 § 2 (part))

In lieu of making the special deposit required by Section 12-12.145, the applicant may make and maintain with the Director a general deposit in an amount estimated by the Director to be sufficient to pay for the cost of permit fees, inspection fees, and expected repairs occasioned by future excavations or obstructions.

(Ord. 2004-1 § 2 (part))

Whenever costs are to be charged to any permittee and no other method for the calculation thereof is specified in this article, such cost shall be the actual cost, including the proportionate part of the salaries, wages, and other compensation including benefits of any deputy or employee, plus the cost of overhead consistent with the normal accounting practices of the city.

(Ord. 2004-1 § 2 (part))

The Director shall deduct from any deposit made or maintained by the permittee:

A. Issuance Fee. The permit issuance fee if it has not otherwise been paid.

B. Refilling and Obstruction Removal Costs. The cost to the city of refilling any excavation or removing any obstruction.

C. Resurfacing and Repair Costs. The cost to the city of resurfacing or repairing the highway calculated pursuant to the provisions of Section 12-12.100 or Section 12-12.120.

D. Additional Repair Costs. The cost to the city of any additional repairs as provided in Section 12-12.100.

E. Inspection Costs. The cost of any inspection by the Director made necessary by the failure of the permittee to comply with any provision of this article or the terms or conditions of the permit. The inspection fees provided for in Section 12-12.090 shall be presumed to be the actual cost of inspection and a refund thereof shall not be made to any applicant.

F. Engineering and Inspection Costs. Engineering and inspection costs will be paid for by the applicant as provided for in Section 12-12.090 and subsection E of this section.

G. Refunds. After making the deductions specified above, the city shall, unless the deductions are made from a general deposit, refund any balance to the applicant in the same manner as provided by law for the repayment of trust moneys. The balance remaining in the general deposit shall be retained by the Director and applied to the issuance fees and costs in connection with any future excavations, fills or obstructions pursuant to a permit issued under this chapter unless a written demand for the balance be made by the depositor, in which event any balance therein shall be refunded in the same manner as provided by law for the repayment of trust moneys.

H. Permittee to Pay Deficiency. If any deposit is insufficient to pay all fees and costs herein provided, the permittee shall, upon demand, pay to the Director an amount equal to the deficiency.

I. Failure to Pay Costs. If a permittee, upon demand, fails to pay any deficiency as provided in this section or shall fail to pay any other costs due to the city hereunder for which no deposit has been made, the city may recover the same by an action in any court of competent jurisdiction. Until such deficiency or cost is paid in full, a permit under this chapter shall not thereafter be issued to such permittee.

(Ord. 2004-1 § 2 (part))

If the United States, the state, the county, any municipal corporation, school district, or other public body files with the Director a written guarantee of payment of all costs for which they may become liable to the city under the provision of this chapter, in the form of an encroachment agreement or other document approved by the City Attorney, then no deposit for costs shall be required from such persons.

(Ord. 2004-1 § 2 (part))

If the applicant for a permit complies in all respects with this article and with all other applicable laws, rules, regulations or ordinances of the city and any other public agency with jurisdiction over the proposed work and pays the fees and deposits required by this chapter, the Director shall approve the application and issue the permit.

(Ord. 2004-1 § 2 (part))

A. The encroachment permit shall be subject to the following conditions:

1. The permit must be kept at the site of the work during construction and be shown, on demand, to any authorized representative of the city or any law enforcement officer.

2. The permit shall authorize work to be performed only as to such portion of the public place over which the city has jurisdiction.

3. All work shall be performed in accordance with the provisions of this chapter and all applicable laws, rules, regulations, and standards of the city and other public agencies and to the satisfaction of the Director.

4. The permit shall be non-transferable, except where the permit is issued in conjunction with an encroachment agreement that “runs with the land.”

5. Unless construction work is commenced within sixty (60) days and completed within one hundred eighty (180) days of the issuance of the permit, the permit shall be null and void. The Director may cancel the permit unless the work authorized therein, in the opinion of the Director, is diligently prosecuted to completion. Cancellation may be affected by giving written notice thereof by sending the same to the applicant by ordinary mail to the address shown on the application.

6. No excavations shall be made without first calling at least forty-eight (48) hours in advance Underground Service Alert (U.S.A.) of Southern California and obtaining a “Digalert” identification number. No encroachment permit shall be valid until a Digalert identification number is obtained.

7. The permittee shall comply with all regulations, including all best management practices and additional controls, as specified in Chapter 5-36 of the city’s municipal code, and as required by the Director.

8. The Director 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 the Director may deem reasonably necessary for the protection of the public right-of-way or for the prevention of undue interference with traffic or to assure the safety of persons using the public right-of-way.

9. The permittee and/or its contractors shall provide public liability insurance for both personal injury and property damage with the city of Laguna Hills, its officer, agents, and employees, as named additional insured in connection with all work performed under this chapter. Such insurance shall be in an amount and form as approved by the Director.

10. Only the contractor performing work under permit shall possess a valid state of California contractor’s license for the work to be performed.

11. The Director will permit the owner of the non-standard improvements to maintain, use, operate, and repair the permitted non-standard improvements within the right-of-way, so long as the permitted non-standard improvements are constructed and maintained in conformance with the original plans on file with the Director, prevailing standards of maintenance, and applicable building, zoning, municipal, health, and safety codes.

12. If the city’s or other public utilities facilities and/or improvements are damaged by the installation or presence of the permitted improvements, the owner of the permitted improvements shall promptly reimburse the city for damages or make repairs as directed by the Director.

13. Should the city be required to enter onto the right-of-way to exercise its primary rights associated with the right-of-way including, but not limited to, the maintenance, removal, repair, replacement or enlargement of existing or future public improvements, the city may remove portions or all of the permitted improvements as required, and in such event:

a. The city will notify the owner(s) or permittee(s) of the permitted improvements in advance of the need to do work, if any emergency condition does not exist.

b. The owner of the permitted non-standard improvements shall be responsible for all costs for such work.

B. Rights granted under any issued encroachment permit can be terminated by the city at any time, or without cause, by giving three days’ notice to the permittee. The owner or permittee shall be responsible for the removal of the permitted improvement and restoration to the pre-existing condition of the public place. If the owner or permittee of the permitted improvement fails to remove the improvement and restore the public place, the city shall be authorized to remove said improvement and restore the public place at the owner’s or permittee’s expense without any further notice to the owner or permittee.

C. In the case of permitted substructure improvements, the permittee shall maintain all excavations in a manner acceptable to the Director including, but not limited to, repair of street pavement and improvements due to settlement, failure of underground facilities, and poor workmanship.

D. In the case of permitted standard improvements, the permittee shall guarantee, for the period of one year, the quality of workmanship and materials. The permittee shall make, at the permittee’s own expense, any repairs or replacements made necessary by defects in workmanship or materials upon notification by the Director during the warranty period. The one-year limitation of responsibility shall not apply to utility excavations.

E. In the case of permitted above grade utility improvements, including, but not limited to transformers, junction boxes, splice boxes, generators, control cabinets, electrical services, and meter boxes, such facilities shall be aesthetically mitigated in the form of screen plantings, additional street tree plantings, and other aesthetic treatments as determined by the Director. The permittee shall maintain the appearance of said improvements including the removal of graffiti, stickers, and unauthorized signs, and by painting, refinishing, and replacement as acceptable by the Director. Permanent above-ground or substructure facilities, which exceed acceptable noise limits as established by Section 5-24.050, shall not be permitted.

F. In the case of permitted non-standard improvements, the permittee shall be responsible and shall maintain said improvements in accordance with general prevailing standards of maintenance and applicable law. In the event that the permitted non-standard improvements are not maintained in accordance with general prevailing standards of maintenance and applicable law as determined by the Director, the permittee shall, upon written notification from the Director, remedy or make repairs within the specified period of time as stated in the notice.

(Ord. 2004-1 § 2 (part))

The county of Orange Public Facilities and Resources Department (PF&RD) standard plans are adopted as the city standard plans. The Standard Specifications for Public Works Construction, 2003 edition, are adopted as the city standard specifications. The Director may amend or modify said standards and specifications and adopt other published standards and specifications for use in the public right-of-way as deemed necessary by the Director.

(Ord. 2004-1 § 2 (part))

A. All existing encroachment permits for non-standard improvements associated with private property, which do not conform to the provisions of this article, shall become null and void if or when:

1. The building on private property is removed;

2. The building has been substantially remodeled resulting in an intensification of the use of the building;

3. An addition has been built exceeding four hundred (400) square feet in floor area; or

4. The encroachment is removed.

B. Encroachments in existence on December 1, 2003, which do not conform to the standards set forth in this chapter may remain as they exist as of December 1, 2003, whether or not a valid encroachment permit is obtained from the city as long as: the encroachment is not expanded, increased, or intensified as described in subsection A of this section; or the encroachment has not been deemed a safety hazard by the Director, until the earlier of either of the following events:

1. The city revokes the permit or requires the removal of the encroachment for any reason, which requires access to the encroachment area; or

2. When the construction of any building, building addition, or major remodel on the property in excess of four hundred (400) square feet in floor area that has an adjacent encroachment in the public right-of-way.

In either of the above events, the encroachment shall be removed and any replacement encroachment shall be subject to an encroachment permit and/or an encroachment agreement and shall conform to the requirements of this chapter.

(Ord. 2004-1 § 2 (part))

A permittee shall not make or cause to be made any excavation, or construct, place upon, maintain or leave any obstruction or impediment to travel, or pile or place any material in or upon any highway or public place, or install any tank, pipe, conduit, duct or tunnel in, upon, or under the surface of any highway or public place at any location or in any manner other than that described in the application as approved by the Director, or contrary to the terms of the permit or of any provision of this chapter.

(Ord. 2004-1 § 2 (part))

After work under a permit has commenced, the permittee shall prosecute with diligence and expedition all excavation work covered by the permit and shall promptly complete such work and restore the public place to its original condition, or as near as may be, so as not to obstruct the public place or travel thereon more than is reasonably necessary.

(Ord. 2004-1 § 2 (part))

When traffic conditions, the safety or convenience of the traveling public or the public interest require that the work be performed as emergency work at the time the permit is granted, a crew of workers and adequate facilities shall be employed by the permittee twenty-four (24) hours a day to the end that such work may be completed as soon as possible.

(Ord. 2004-1 § 2 (part))

The Director shall make such inspections as are reasonably necessary in the enforcement of this chapter. The Director shall have the authority to promulgate and cause to be enforced such rules and regulations as may be reasonably necessary to enforce and carry out the intent of this chapter.

(Ord. 2004-1 § 2 (part))

General provisions of this chapter are as follows:

A. Deviations from the strict application of this chapter shall not be granted unless the City Council finds that individual circumstances indicate that approval will be consistent with the public interest.

B. All construction shall conform to the requirements of the city standard plans as amended from time to time, adopted Uniform Building Code, and all federal, state, and municipal laws and codes.

C. Encroachments shall not obstruct access to existing facilities or underground utilities including, but not limited to, fire hydrants, fire escapes, backflow devices, water valves, existing utility boxes, underground vaults/manholes or impair operation of such facilities.

D. Public right-of-way, through and encroachment permit, shall not satisfy open space or any conditions of building or zoning that are required for the development or redevelopment of private property.

E. Permitted improvements shall not impair any sight distance and any other safety provisions.

(Ord. 2004-1 § 2 (part))

A. Any encroachment that exists in any public right-of-way and is not allowed under this code, has not received proper permits and approval from the city, or is in violation of any permits issued by the city for said encroachment is hereby declared to be a public nuisance and may be removed and/or abated as follows:

1. Summary Abatement. The Director of Public Services/City Engineer, or his or her designee, may immediately remove and abate any of the following encroachments from within the public right-of-way:

a. An encroachment that obstructs and prevents the use of the public right-of-way;

b. An encroachment that consists of refuse, rubbish, or debris;

c. An encroachment that is a traffic hazard as determined by the Director of Public Services/City Engineer, or his or her designee; or

d. An encroachment that is not removed from the public right-of-way pursuant to subsection (A)(2) of this section.

2. Notice and Hearing. Except as otherwise provided in subsection (A)(1) of this section, notice shall be given to the owner, occupant, person in possession of the encroachment, person causing the encroachment to exist, or the agent for any of the aforementioned, by serving upon any such person a notice containing a demand for the immediate removal of such encroachment from within the public right-of-way. Any such notice shall describe the encroachment complained of with reasonable certainty as to its character and location. The notice shall contain a statement that any person having any objections to, or interest in, said encroachment and/or the abatement thereof is notified to submit any objection(s) to the City Manager in writing within ten calendar days following service of the notice. Any written objection(s) submitted to the City Manager must contain all facts, evidence, and/or reasons for the objection(s). In lieu of service upon such person, service of such notice may also be made by registered mail and by posting a copy of the notice on the encroachment described in the notice.

a. If, after ten calendar days following service of the notice, the owner, occupant, person in possession of the encroachment, person causing the encroachment to exist, or the agent for any of the aforementioned, has neglected, failed, or refused to remove the encroachment from within the public right-of-way, and if no objection(s) has been submitted to the City Manager as required in this section, the Director of Public Services/City Engineer, or his or her designee, may remove and abate the encroachment described in the notice as provided for in subsection (A)(1) of this section.

b. If, after a reasonable attempt has been made, the owner, occupant, person in possession of the encroachment, person causing the encroachment to exist, or the agent for any of the aforementioned, cannot be located, contacted, served, or identified, the Director of Public Services/City Engineer, or his or her designee, shall have the authority to remove or relocate and abate the encroachment.

c. If any written objection(s) are submitted to the City Manager within ten calendar days following service of the notice, the City Manager, or his or her designee, shall hold a hearing on the objection(s). If the City Manager, or his or her designee, overrules the objections, the owner shall have five calendar days from the date of that decision to remove and/or abate the encroachment. The decision of the City Manager, or his or her designee, shall be final. If, after five calendar days from the date of the City Manager’s, or his or her designee’s, decision, the owner, occupant, person in possession of the encroachment, person causing the encroachment to exist, or the agent for any of the aforementioned has neglected, failed, or refused to remove the encroachment from within the public right-of-way, the Director of Public Services/City Engineer, or his or her designee, may remove and abate the encroachment described in the notice as provided for in subsection (A)(1) of this section.

d. At the hearing before the City Manager, or his or her designee, the notice issued pursuant to this subsection (A)(2) and any additional documents submitted by the Director of Public Services/City Engineer, or his or her designee, shall constitute prima facie evidence of the respective facts contained in those documents. Additionally, the hearing need not be conducted according to technical judicial rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely. Within a reasonable time following the hearing, the City Manager, or his or her designee, shall issue a written decision on the objection(s). The written decision of the City Manager, or his or her designee, shall be served upon the person or persons who filed the objection(s). In lieu of service upon such person or persons, service of the written decision may also be made by registered mail and by posting a copy of the notice on the encroachment described in the notice.

e. The failure of any person to file written objection(s) with the City Manager as required by this section and/or appear at the hearing on the written objection(s) shall constitute a failure to exhaust their administrative remedies.

3. Summary Abatement—Encroachment Disposition. Should the Director of Public Services/City Engineer, or his or her designee, be required to immediately remove and abate any encroachment as described in subsection (A)(1) of this section, the Director of Public Services/City Engineer, or his or her designee, shall do the following:

a. If the removed encroachment is determined in good faith by the Director of Public Services/City Engineer, or his or her designee, to be of nominal value or consist of refuse, rubbish, or debris, the removed encroachment may be disposed of.

b. If the removed encroachment is determined in good faith by the Director of Public Services/City Engineer, or his or her designee, to be of greater than a nominal value or does not consist of refuse, rubbish, or debris, the Director of Public Services/City Engineer, or his or her designee, shall not effect disposition of the removed encroachment until he or she has made a reasonable attempt to identify and notify the owner of the removed encroachment, should the identity of the owner be able to be ascertained, and provide at least thirty (30) days for the owner to retrieve the removed encroachment. The return of the removed encroachment to its owner shall be conditioned upon the payment, in advance, of an amount sufficient to reimburse the city for the estimated reasonable cost and expense incurred in the city’s removal and storage of the encroachment.

c. Should the Director of Public Services/City Engineer, or his or her designee, comply with the requirements of subsection (A)(3)(b) of this section, the removed encroachment may then be disposed of.

B. Should the city be required to remove or abate an encroachment within the public right-of-way as provided for in this section, the city may recover its estimated reasonable costs and expenses, including any storage costs, incurred. These costs and expenses may become a personal obligation against the owner, occupant, person in possession of the encroachment, person causing the encroachment to exist, or the agent for any of the aforementioned, in accordance with Government Code Section 38773.1 or 38773.5.

C. The failure to receive any notice specified in this section does not affect the validity of any proceedings or actions conducted hereunder.

(Ord. 2009-9 § 2)