Chapter 12.64

ENCROACHMENTS IN THE PUBLIC RIGHTS-OF-WAY

• A. The City's rights-of-way (hereafter ROW) are held in trust by the City for the benefit of the public. The ROW is a physically-limited resource which requires proper management to: minimize interference with the public's safe travel, use and enjoyment; establish efficiencies that will promote fair and equal competition; minimize the potential for ROW and other City and public uses from becoming more costly and burdensome; ensure that encroachments do not interfere with ROW use by existing public utilities and public agencies; and to enhance the aesthetic appearance of encroachments so they do not detract from business, increase crime or create blight.

• B. Under applicable state and federal law the City is authorized to exercise reasonable control over access to and use of its ROW. Both below ground and aboveground facilities in the ROW have impacts, although aboveground facilities by their nature have more potential for line of sight, graffiti and visual impacts than below ground facilities. However, both take up limited space in the ROW and both interfere either periodically or permanently to varying degrees with the public's use of the ROW. The City is home to many unique communities, including, but not limited to: (1) the Old Towne Orange National Register District, which is one of the largest historic districts in the State of California and is listed on the National Register of Historic Places; (2) neighborhoods consisting of architecturally significant Eichler tracts; and (3) the Orange Park Acres community, which is characterized by large lots and horse property. Without special recognition of the unique character of these neighborhoods, aboveground facilities have the potential to create negative impacts.

• (Ord. 17-07)

For the purpose of this chapter, the words, phrases, and terms defined in this section have the meanings set forth below unless a different meaning is clearly intended by the use and context of the word, phrase, or term:

"Director" means the Director of Public Works of the City or designee.

"Encroachment" means any facility or structure of any kind or character that is placed in, under, or over any ROW or any excavation in the ROW.

"Encroachment permit" means a permit issued to a person by the Director of Public Works for the purpose of encroaching within the ROW.

"Facility" means any fiber optic, coaxial, or copper cable; telephone, telecommunications, electric or other wire or line; oil, gas, water, or other pipeline; duct, conduit, cabinet, pedestal, vault, tunnel, drain, manhole, splice box, marker, or pole structure; and any other appurtenance, structure, equipment, or tangible thing.

"Permittee" means any person or public agency that has obtained an encroachment permit as defined in this section.

"Person" means any individual, business, firm, corporation, partnership, limited liability company, or other legal entity that places, constructs, owns, controls, operates, manages, or uses any facility in, upon, above, beneath, or across any public right-of-way. For the purposes of this

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City of Orange, CA § 12.64.020

ORANGE CODE

§ 12.64.040

chapter, the term person does not include a public agency.

"Public agency" means any City, county, public corporation, or public district established in accordance with state law.

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

"Public right-of-way" or "ROW" means the area in, upon, above, beneath, or across any public street, lane, court, alley, boulevard, sidewalk, median, parkway, or easement for vehicular or pedestrian travel within the City.

"Public utility" means any private corporation authorized by law to establish and maintain any works or facilities in, under, or over any public street, or ROW. (Ord. 17-07)

• A. Promotion of Undergrounding. It is the policy of the City to promote the undergrounding of facilities whenever and wherever feasible. Whenever existing facilities are located underground along a particular ROW, new facilities must be installed underground along that public ROW, at permittee's sole expense. Consistent with applicable law no new aboveground facilities shall be authorized by the City in areas where existing facilities are underground.

• B. Limits on Encroachments. It is the further policy of the City to limit the number and to control the location of aboveground facilities that are used in conjunction with underground facilities in a manner that is consistent with technical requirements for providing highquality utility and other services. Whenever feasible and financially practicable, permittees must place all newly installed facilities underground or in flush-mounted vaults. Permittees must provide advance notification to all affected adjacent property owners when locating new facilities in order to minimize inconvenience and disruption to residents and businesses.

• C. Excess Capacity—Colocation. Whenever excess capacity is available to a permittee on reasonable terms and conditions as determined by the appropriate regulatory bodies and owner of a facility, new facilities must be installed within existing underground ducts or conduits. Where existing poles or other wireholding structures are available for use on such reasonable terms and conditions, the Director or the City Council may require those poles and structures to be used if it is determined that the public convenience would be enhanced by that use.

• (Ord. 17-07)

• A. The facilities of a permittee must be located, constructed, installed, and maintained in a manner that will not endanger, interfere with, or limit the normal and customary use, including traffic and travel, of the ROW or of any adjacent private property.

• B. If a permittee creates a hazardous or unsafe condition, or an unreasonable interference with the use of public or private property, the permittee must remove or modify the facility to eliminate that condition or interference.

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City of Orange, CA

STREETS, SIDEWALKS AND PUBLIC PLACES

§ 12.64.040

§ 12.64.070

• C. A permittee shall not place a facility in the ROW where it will unreasonably interfere with any of the following: (1) existing or known future uses by the City of the public ROW; (2) the rights of private property owners as determined by the Director; (3) existing public utilities or public agencies; (4) traffic control systems; or (5) any City-owned facilities.

• (Ord. 17-07)

No person shall place or maintain a facility in a ROW without having first obtained a permit from the Director unless explicitly exempted by Section 12.64.060. (Ord. 17-07)

• A. The provisions of this chapter do not apply to officers or employees of the City acting in the discharge of their official duties.

• B. The provisions of this chapter do not prevent any public utility or public agency from lawfully maintaining, operating or installing any facility on or under any ROW, from excavating in the ROW in accordance with existing franchises or from making emergency excavations as may be necessary for the preservation of life or property. Nothing in this chapter is intended to contravene the authority vested by law in the California Public Utilities Commission, and in the event of a conflict, the regulations of the Public Utilities Commission shall govern where the law requires.

• C. The provisions of this chapter do not apply to any person who is a party to an existing agreement or franchise with the City to the extent this chapter would exceed the City's authority to modify encroachments into its ROW. In such a case, upon the expiration or termination of that agreement or franchise, that person will become subject to this chapter. If an existing agreement or franchise for use of the ROW contains a provision for its renewal or extension, then the renewal or extension will be negotiated and executed in accordance with the provisions of this chapter.

• (Ord. 17-07)

• A. General. Applications for encroachment permits may be obtained from the Director. Permit application forms and processing procedures and other reasonable conditions not specifically set forth herein, shall be as established by the Director.

• B. Efforts to Underground and Colocate Facilities.

  1. When the Director determines that a new aboveground facility will have a negative impact, an applicant must describe in writing why under grounding of a proposed aboveground facility is technologically and economically infeasible. At a minimum, an applicant must demonstrate that it conducted a written analysis that concluded that under grounding was not feasible.

  2. When the Director determines that a new aboveground facility will have a negative impact, an applicant must describe in writing its efforts to collocate any proposed aboveground facility with any other aboveground facility previously installed, or proposed to be installed.

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City of Orange, CA

ORANGE CODE

§ 12.64.070

§ 12.64.070

• C. Facility Plans. The Director may require such detailed plans as are deemed necessary to determine the exact location, nature, dimensions, duration, and purpose of the proposed facility. The form and content of all plans shall be in accordance with standards approved by the Director.

• D. Graffiti Removal Plan. If a facility proposed by an applicant for an encroachment permit is determined by the Director to be susceptible to graffiti vandalism, then the applicant must comply with either of the following requirements:

  1. Provide a written commitment to comply with Section 8.37.075 of the Orange Municipal Code, which section is titled "Graffiti on Private Structures on Public Property"; or

  2. Submit a voluntary pro-active graffiti removal plan that will be subject to the Director's approval and that provides, at a minimum, for all of the following: (a) graffiti-resistant coatings on the facility; (b) a graffiti "hotline" telephone number that persons can call to report graffiti vandalism; (c) a procedure for graffiti removal that will cause graffiti to be removed within two business days after it is reported; and (d) periodic inspections of the facility to ensure prompt removal of the graffiti.

• E. Traffic Control Plans. If required by the Director, an applicant must submit with its application traffic control plans for all proposed work within any ROW that are in accordance with industry-accepted traffic engineering standards.

• F. Plan to Mitigate Adverse Visual Impacts.

1. If the Director determines that an aboveground facility has the potential to create a significant adverse visual impact in any residential neighborhood, the application shall be forwarded to the Community Development Director for a determination, which determination shall be rendered within five business days. Except when precluded by operational requirements, if requested by the Director, an applicant must submit with its application for a facility that will be visible from the public ROW a plan for screening, camouflaging, or otherwise mitigating any adverse visual impacts.

   2. If the Director receives a permit application for an aboveground facility that is proposed to be located within the Old Towne Orange National Register District, it shall be referred to the Community Development Director. The Community Development Director shall, in consultation with the City's Historic Preservation Planner, within five business days make a determination as to whether or not the aboveground facility has the potential for having a significant impact on an historical resource and/or the Old Towne Orange National Register District. If the determination is that a significant potential impact exists, the Community Development Director shall, in conjunction with the Director, the City's Historic Preservation Planner and the applicant, discuss and implement mitigation measures upon the placement and/or design of the aboveground facility to ensure there is no significant negative impact. No permit shall be issued until such impacts are mitigated to the satisfaction of the Community Development Director.

   3. The Community Development Director may in his or her reasonable discretion and in consultation with the Director, require that permit applications for aboveground facilities in other areas of the City be forwarded to the Community Development Director if there is a reasonable potential for an aboveground facility to have a

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City of Orange, CA

STREETS, SIDEWALKS AND PUBLIC PLACES

§ 12.64.070

§ 12.64.100

significant negative impact to such an area due to its unique characteristics. If so, the Community Development Director shall provide a map to the Director outlining the boundaries of such areas. The Community Development Director shall make a determination within five business days of receipt of a permit application as to whether the aboveground facility has a significant potential impact. If the determination is that a significant potential impact exists, the Community Development Director shall, in conjunction with the Director and applicant, discuss and implement mitigation measures to address the potential impact.

• G. Public Notification Plan. If required by the Director, an applicant must submit with its application for a facility a public notification plan setting forth procedures for notifying residents and businesses adjacent to the proposed installation of the facility prior to the commencement of construction.

• H. Consent of Public Agencies, Utilities, or Property Owners. The applicant is responsible for securing the consent of any public utilities or public agencies that may be required, or permission from private property owners for construction on their property. Evidence of any required consents in a form satisfactory to the Director shall be submitted with the permit application.

• (Ord. 17-07)

Within 30 days of submitting the application, the Director shall either approve or deny the application or inform the applicant that the application is incomplete and state the reasons. Upon finding that the application for the requested encroachment permit conforms to the provisions of this chapter and other applicable provisions of this code, the Director may issue the permit. If the Director finds that the application for the requested encroachment permit is in conflict with any provisions of this chapter or any other applicable provisions of this code, the Director may deny the permit and set forth in writing the reasons for that denial. (Ord. 17-07)

• A. If an applicant is dissatisfied with a decision of the Director with respect to the denial of an encroachment permit or the imposition of conditions of approval, that decision may be appealed to the City Council. The appeal shall be in writing to the City Clerk and shall set forth the basis of the appeal.

• B. The City Clerk shall schedule the appeal for consideration by the City Council at the earliest possible regular City Council meeting.

• C. The City Council may uphold or reverse the Director's denial of a permit and may modify, delete, or add to any of the conditions of approval specified by the Director that are consistent with the provisions of this chapter.

• (Ord. 17-07)

The term of the permit shall be as set forth in the approved permit. A permit for installing and maintaining a facility may be granted by the Director. The Director may terminate a continuing

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City of Orange, CA

ORANGE CODE

§ 12.64.100

§ 12.64.130

permit by written order that is mailed 15 days prior to the date of termination and may provide for a time that all installation and repair work be completed within a specified time. The permit term may be renewed or extended at the discretion of the Director. (Ord. 17-07)

• A. Nothing in this chapter shall be construed to prevent a permittee from taking any action that is necessary to protect life or property or to restore interrupted utility or other service provided by a permittee when that necessity occurs during days or hours when the Department of Public Works is closed.

• B. If a permittee takes any emergency action to excavate in the ROW, the permittee shall apply for an emergency permit within 24 hours after the offices of the Department of Public Works are open. The application must contain a written statement specifying the reason for the emergency action and describing the work performed and the work remaining.

• (Ord. 17-07)

In addition to the obligations imposed upon permittees by this chapter, by the encroachment permit conditions, and by applicable laws and regulations, a permittee must comply with the following obligations:

• A. Maintenance of Facilities. All facilities of a permittee must be maintained in compliance with the conditions specified in an encroachment permit, and in compliance with all applicable statutes, ordinances, rules, regulations, orders, and decisions adopted or issued by any federal, state, or local governmental body, agency, or court. A permittee's failure to properly maintain its facilities may, in certain circumstances, provide cause for the Director to revoke the encroachment permit, in which case the facility must be removed and the area restored to its prior condition.

• B. Identification of Facilities. Each visible facility installed in the ROW must be clearly identified with the name of the permittee and where feasible, the permittee's toll-free telephone number. The Director may adopt orders or regulations to specify other appropriate methods for the identification of a facility.

• C. Facility Location Data. To the extent feasible, available and not inconsistent with system security, a permittee must provide to the Director data in a digital or other format specified by the Director that identifies all geographic locations of permittee's facilities that are in the ROW.

• D. Use of Pedestals. To the extent feasible and financially practicable, a permittee must place all aboveground active and passive equipment in flush-mounted or low-profile waterproof pedestals whose design, size, placement, color (within the manufacturer's specifications), and appearance have been approved in writing by the Director.

• (Ord. 17-07)

• A. At the option of the Director, an encroachment permit may be revoked at any time whenever:

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City of Orange, CA

STREETS, SIDEWALKS AND PUBLIC PLACES

§ 12.64.130

§ 12.64.190

1. It appears to the Director that the continuance of the encroachment, whether because of changed conditions or otherwise, interferes with full, adequate, or safe public use of the ROW; or

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

• B. Upon revocation of the permit, the permittee shall immediately restore the ROW to the original condition as required by the Director. If the restoration is not completed within the time specified by the Director, the City may take all necessary action that is required to restore the ROW. All costs incurred by the City for enforcement of this section, including reasonable attorneys' fees, shall be at the expense of the permittee.

• (Ord. 17-07)

The permittee shall keep any permit issued pursuant to this chapter at the site of the work, or in the cab of a vehicle when movement on a public street is involved. The permit shall be shown to any authorized representative of the Director or any law enforcement officer on demand. (Ord. 17-07)

Prior to the issuance of a permit, the applicant shall pay all applicable fees; provided that public utilities and public agencies may, at the option of the Director, make payments for the fees when billed by the City rather than by advance payment. (Ord. 17-07)

Prior to issuance of a permit, the permittee shall deposit with the City cash or a certified/cashier's check in an amount to be fixed by the Director. That amount will be sufficient to reimburse the City for the costs of restoring the ROW to its former condition and for the costs of inspections. (Ord. 17-07)

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

(Ord. 17-07)

Permits shall be issued only to the person named in the application and may not be assigned by the permittee to another person and may be revoked. (Ord. 17-07)

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City of Orange, CA

ORANGE CODE

§ 12.64.190

§ 12.64.250

No changes may be made in the location, dimensions, or character of the facilities, or the duration of the encroachment permit, except upon written authorization of the Director. (Ord. 17-07)

If there is no valid encroachment permit for a facility, or if the material terms of the permit are not complied with, the Director may summarily abate, remove, or by notice may require the removal of such a facility.

(Ord. 17-07)

The Director may, by written notice, require the removal from any City street of any other facility not specified above in Section 12.64.200, if there is no valid permit for that encroachment or if the terms of the permit are not followed.

(Ord. 17-07)

The notices referred to in Section 12.64.210 and this section shall be served upon the owner or occupant of the land, or the person owning or controlling the facility. If such person is not known or has not left a current address, the notice shall be posted on the facility. The notice shall specify the location of the facility and shall require the removal of that facility within 10 days. (Ord. 17-07)

If the owner or occupant of the land, or the person owning or controlling the facility, denies that an encroaching facility exists, or refuses either to remove it or to permit its removal, the City may commence in any court of competent jurisdiction an action in declaratory relief and abatement in the name of the City.

(Ord. 17-07)

If the owner or occupant of the land, or the person owning or controlling the facility, admits that an encroaching facility exists, and if the encroaching facility is not removed within 10 days from and after service or posting of the notice, the City may remove the encroaching facility at the expense of its owner, or at the expense of any other person causing the encroaching facility to exist.

(Ord. 17-07)

Any person violating any of the provisions of this chapter shall be guilty of an infraction and, upon conviction thereof, shall be subject to:

• A. A fine of $75.00 for a first violation;

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City of Orange, CA

§ 12.64.250 STREETS, SIDEWALKS AND PUBLIC PLACES

§ 12.64.250

• B. A fine of $150.00 for a second violation of this chapter within one year; and

• C. A fine of $250.00 for each additional violation of this chapter within one year. (Ord. 17-07)

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City of Orange, CA § 12.66.010

STREETS, SIDEWALKS AND PUBLIC PLACES

§ 12.66.040