Article 1 — Permit Requirements

Editor's note— Ord. No. 11-02, § 1(exh. A), adopted Mar. 1, 2011, amended Ch. 12.08, Art. 1, in its entirety to read as herein set out. Former Art. 1, §§ 12.08.010—12.08.110, pertained to similar subject matter and derived from: Ord. 03-04, § 2 Exh. A(part); and Ord. 04-01, § 2.

A. General. A public right-of-way is public property held for the benefit of the public. Individuals and entities do not have the right under the law to interfere with the use, possession and enjoyment of the public right- of-way without the permission of the city. Accordingly, no person may encroach into a right-of-way for temporary or permanent purposes without first meeting the requirements of this chapter, unless the encroachment is exempt. B. Encroachment permit. An encroachment permit under Section 12.08.040 is required to encroach into the public right-of-way. All encroachment permit applications must be reviewed and approved by the Director of Public Works. Additionally, all encroachment permit applications involving design review must be reviewed and approved by the Planning Director. The Director of Public Works and the Planning Director are referred to collectively herein as "the Permit Officer".

C. Encroachment agreement. Before obtaining a permit for a permanent encroachment which is not entirely below ground, an encroachment agreement must be signed by each permittee, as set forth in Section 12.08.050. Additionally, the Permit Officer may require a permittee to sign an encroachment agreement when the Permit Officer determines, in his or her reasonable discretion, that such an agreement would be in the public interest. D. Design review. Before obtaining an encroachment permit for a permanent encroachment which is partially or completely above ground, design review approval of the encroachment must be obtained as set forth in Section 12.08.060. Permanent encroachments include but are not limited to, a fence, gate, post or wall; a driveway bridge or similar structure; and any other above ground improvement of a permanent nature which has the potential to interfere with or otherwise adversely affect the current or future public use and benefit of a right-of-way, has an impact on the visual context of the right-of-way, or has the potential to otherwise adversely affect the public welfare. This category is intended to be interpreted broadly; the determination that an encroachment requires design review approval and/or an encroachment agreement shall be made by the Permit Officer. E. Removal or relocation of encroachment. The Permit Officer may revoke an encroachment permit at any time for any reason relating to the public benefit. On termination of an encroachment permit, the permittee controlling or maintaining an encroachment shall relocate or remove it at the permittee's expense if required by the city. When removal or relocation is required, the Permit Officer shall give the permittee a written demand specifying the place of relocation or requiring that the encroachment must be removed from the right-of-way, and specifying in the demand a reasonable time within which the encroachment must be removed or relocated. If the permittee fails to comply with the demand, the city may remove or relocate the encroachment at the expense of the permittee, with no right of reimbursement from the city. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

No permit is required for the following encroachments: A. Mailbox. A mailbox within the right-of-way in accordance with the rules and regulations of the United States Post Office Department which does not endanger the life or safety of the traveling public. However, a mailbox within a structure which is subject to a permit does not create an exemption for the structure. B. Plants. A tree, shrubs, grass or other growing thing, (including an irrigation system as an appurtenance to the planting) in the right-of-way, subject to the following limitations: 1.

Plants and irrigation systems may not be located in the traveled way or in a drainage ditch, gutter, or other drainage facility; 2. No tree, hedge, shrub or other planting, including an irrigation system appurtenant to the planting, or other permitted encroachment may be maintained across an existing walkway in a sidewalk area or shoulder. The intent of this restriction is to keep a walkway free for pedestrian and other lawful public travel without interference by or with vehicular travel; 3. The general public shall not be denied the use of a planted area within the right-of-way for pedestrian travel, utility construction, maintenance, and repair, or other lawful uses; 4. The city may use the planted area for any lawful purpose and may issue a permit to any applicant to go on the planted area in the right-of-way to perform work or otherwise encroach in the public right-of-way; 5. If the planted area (including an irrigation system appurtenant to the planting) is damaged or disturbed in the course of an authorized encroachment, the property owner will be responsible for replacement or repair, consistent with the property owner's responsibility for maintenance of trees and plants in the public right- of-way as provided by Section 12.08.320, unless there is an encroachment permit which specifically states otherwise. C. Notices. A temporary notice posted as provided by law or court order. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

No person may place a sign or a post, pole, column or structure for the support of a sign within or above a right-of-way, except as provided by Title 17. No encroachment is permitted or may be maintained which impedes, obstructs or denies pedestrian and other lawful travel within a street or highway or impairs adequate sight distance for safe pedestrian or vehicular traffic. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

An applicant for an encroachment permit shall submit an application accompanied by the appropriate fee to the Permit Officer as follows: A.

Application form. The applicant shall provide the following information: 1. Applicant's name and address; 2. The contractor's name, license number, and primary place of business, if the applicant proposes to employ a contractor; 3. A description of the purpose, use, location, dimension of the encroachment; 4. The estimated dates during which a temporary encroachment will exist or the estimated dates to begin and complete construction or placement of a permanent encroachment. B. Additional information. The applicant shall include with the application the following information: 1. Site map. A map, plat, sketch, diagram or similar exhibit of a size and in the quantity prescribed on which shall be plainly shown all information necessary to locate, and identify the proposed use or encroachment and the right and necessity of the applicant to make the encroachment. The city may change, correct and make notes on the map, plat, sketch, diagram or similar exhibit and these items shall become conditions of approval. 2. Other permits, orders. A copy of any written order or consent to work relating to the project from the Public Utilities Commission, a utility company, a sanitary district, a water district, or another public agency having jurisdiction. 3. Waste management plan. A copy of an approved waste management plan as described in Chapter 15.62 of this Code or a complete application for such approval. C. Standards for encroachment permit. The Permit Officer may grant an encroachment permit if the Permit Officer finds that the proposed encroachment meets each of the following standards: 1. Necessity. The proposed encroachment cannot reasonably be located outside the right-of-way.

No adverse effect. The grant of the permit is not detrimental to the public interest, safety, health and welfare or likely to adversely affect other property or the environment, generally. 3. Waste management plan. A waste management plan for the project has been approved or is not required. 4. Encroachment agreement. An encroachment agreement has been signed by the applicant, if required. 5. Design review. Design review approval has been obtained, if required. 6. Insurance. For temporary encroachments, the Permit Officer may require public liability insurance which includes the city, its officers, employees and agents as additional insureds and provides primary insurance. If required, the insurance coverage shall be in an amount sufficient to adequately protect the additional insureds from liability for damages to person or property arising from the activities related to the permit. Proof of insurance and coverage terms shall be provided. D. Conditions. The Permit Officer may attach such conditions to the encroachment permit as are reasonably related to the standards set forth in the foregoing section. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

As a condition of approval of an encroachment permit for a permanent encroachment not entirely below ground, including but not limited to, a bridge, retaining wall, or abutment, and as determined by the Permit Officer, the applicant shall execute an encroachment agreement to place all risks and liability for the encroachment on the permittee. A. Terms. The encroachment agreement shall contain the following general terms, among others as approved by the City Attorney: 1. Assumption of the risk. The permittee shall assume all risks of injury and damage relating to the encroachment. 2.

Indemnification. The permittee shall agree to indemnify the City of Orinda, its officers, employees and agents from all injuries, damages and costs relating to the encroachment. 3. Maintenance. The permittee shall assume full responsibility for adequate maintenance of the encroachment. 4. Revocability. The agreement shall state the right of the city to revoke the permit at any time. B. Recordation. The encroachment agreement shall be recorded with the Contra Costa County Recorder against any real property owned by the permittee adjacent to the encroachment area before construction or placement of the encroachment within the right-of-way. Proof of recordation shall be given to the city prior to issuance of the encroachment permit. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

As a condition of approval of an encroachment permit for a permanent encroachment, an applicant shall obtain design review approval if the encroachment is partially or completely above ground. The Planning Director shall review the site plan and any other relevant information. The Planning Director may refer review of the design of a proposed encroachment to the Planning Commission when the Planning Director in his or her reasonable discretion determines that referral would be in the public interest. A. Standards. The decision maker shall approve the design of an encroachment if written findings are made that it meets all of the following standards: 1. Aesthetics. The encroachment is designed so that it blends into the existing streetscape, reflecting the dominant visual character of the natural and man-made context. 2. Function. The design and location will not adversely affect the use and enjoyment of neighboring properties and structures. 3. Other code requirements. The encroachment meets all other applicable requirements of this Code. B.

Planning Commission review. If a permanent encroachment is part of an application which will be reviewed by the Planning Commission under Title 17 or is referred to the Planning Commission by the Planning Director, the design of the permanent encroachment shall be reviewed by the Planning Commission according to the standards of this section and any other standards which may apply to the rest of the project. C. Conditions. The Planning Director, or the Planning Commission, as the case may be, may attach such conditions to design review approval as are reasonably related to the standards set forth in this section. D. Procedures. Notice and hearing requirements shall be those required for Zoning Administrator design review under Title 17. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

Encroachment permitting decisions not involving design review may be appealed as provided in Chapter 1.16. Permitting decisions involving design review may be appealed as provided in Chapter 17.43. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

No change may be made in the location, dimension, character or duration of the encroachment granted by the permit except on prior written authorization by the Permit Officer. No permit is required for the continuing use or maintenance of an encroachment installed by a public utility or for a change in use by a public utility where the change does not require excavation of the right-of-way. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

The terms and conditions of an encroachment permit issued under this chapter apply regardless of the subsequent transfer of ownership of the property to which the encroachment is appurtenant. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

A permit granted or revocable agreement entered into under this chapter does not affect the right of the city or the public to use that part of the public right-of-way for a purpose for which it may be lawfully used. (Ord. No. 11-02, § 1(exh. A), 3-1-11)

This chapter does not prevent a person from performing emergency maintenance on a pipe or conduit lawfully on or under a right-of-way, or from making an emergency use or encroachment necessary to preserve life or property when an urgent necessity arises. However, the person making an emergency use or encroachment of a right-of-way shall apply for a written permit within three (3) calendar days after the use or encroachment, beginning with the first business day the city offices open. A person requiring an emergency use or encroachment shall first notify the Permit Officer by the fastest means possible. During the hours the city offices are closed, notice shall be given to the Police Department. (Ord. No. 11-02, § 1(exh. A), 3-1-11)