Pismo Beach Municipal Code Ch. 12.32 Encroachments

The council finds and declares the following: (1) the uncontrolled encroachment into the public right-of-way creates potential physical dangers to the traveling public and the numerous pedestrians who use the public rights-of-way in the city; and (2) limited, controlled encroachment and access into the public right-of-way should not be unreasonably or absolutely denied. The council concludes that reasonable accommodation can be satisfactorily achieved through this chapter of the city's municipal code which provides for special accommodations for encroachments into the right-of-way for any purpose deemed necessary or desirable and otherwise complying with state, city, and other applicable laws and regulations. (Ord. O-2025-002 § 28 (part), 2025; Ord. 98-04 § 1, 1998: Ord. 98-03 § 1 (part), 1998)

As used in this chapter:

"Director" means the public works director of the city of Pismo Beach, or designee.

"Encroachment" includes any encroachment or excavation in, under, on, or over any road or other public place, including any highway, alley, street, avenue, place, sidewalk, path, walk, park, plaza, boulevard or right-of-way or any other public place in the city whether or not currently improved.

"Encroachment Agreement" means an agreement between the City and the property owner that is required for permanent structures in the public right-of-way, upon approval of the City Council and is recorded with the County Recorder's Office memorializing the encroachment and the property owner's responsibilities for the encroachment.

"Encroachment Permit" means a permit allowing temporary work in, or use of, the public right-of-way by a third party.

"Newsracks" shall have the same meaning as set forth in Section 12.10.020.

"Permanent structure" includes, but is not limited to the following: fences, walls, or other structures that are designed to remain in place for a long period of time.

"Personal property" includes, but is not limited to the following: construction materials, trash dumpsters, portable toilets, furnishings, produce, merchandise, store boxes, store substances or materials, signs, or any other object or implement of any class, kind or character.

"Public right-of-way" means any road or other public place, including any highway, alley, street, avenue, place, sidewalk, path, walk, park, plaza, boulevard or right-of-way or any other public place in the city whether or not currently improved.

"Retail food establishment" means any fixed facility in which food or drink is offered or prepared primarily for immediate consumption.

"Sidewalk cafe" means any group of tables and chairs, and its authorized decorative and accessory devices, situated and maintained in whole or in part on the public sidewalk or other rights-of-way for use in connection with the consumption of food and beverages sold to the public from or in an adjoining indoor retail food establishment. (Ord. O-2025-002 § 28 (part), 2025; Ord. O-2021-005 § 2, 2021: Ord. O-2021- 003, § 20, 2021: Ord. 98-04 § 2, 1998; Ord. 98-03 § 1 (part), 1998)

A. It is unlawful for any person to make any encroachment into the public right-of-way without first being issued an encroachment permit, as provided in this chapter.

B. No person shall leave, place or cause to be placed, any personal property upon any sidewalk, gutter, alley, or street within the city without first obtaining an encroachment permit authorizing the same. This section shall not be construed to prohibit parking of bicycles and vehicles where otherwise allowed.

C. No person shall construct any permanent structures upon any public sidewalk, gutter, alley, or street within the city without first obtaining an encroachment permit and preparation and filing of an encroachment agreement authorizing the same. (Ord. O-2025-002 § 28 (part), 2025; Ord. 98-03 § 1 (part), 1998)

A. Application. Any person desiring to encroach upon, or to cause, allow or make any encroachment into the public right-of-way must first obtain a permit to do so. Applicants shall file a written application with the director to obtain a permit. The application shall be in the form prescribed by the city, and shall have the following information (as applicable):

• 1. Location of the encroachment;
• 2. The reason or necessity for encroachment;
• 3. Estimated time to begin and complete the work or placement of an encroachment;
• 4. Plans and specifications covering the encroachment as may be required by the city;

5. Estimated cost of repairing damage to the road or other public property caused by the encroachment;

6. Length of time the encroachment will be kept in place;

7. Each permit shall expressly provide that any personal property placed upon the sidewalk pursuant to the permit shall extend no further along the sidewalk than the exterior limits of the merchant's place of business;

8. Each permit shall expressly state, and the permittee shall agree, that in all cases a minimum sidewalk width of five (5) feet shall be kept clear of any obstruction at all times;

9. Name, address, and phone number of the person responsible for maintaining the encroachment during the lifetime of the encroachment;

10. Other information as may be required by the director.

All terms and conditions of this chapter shall be incorporated by reference and implication into any permit issued the city.

B. Approval/conditional approval. Upon receiving an application to encroach upon the public right-of-way, the director shall either issue, conditionally issue, or deny it. If the application is approved, or conditionally approved, the director shall cause the deposit, if any, to be paid into the city treasury and/or such surety bond, if any, to be deposited with the finance director, and shall issue a written permit authorizing the encroachment. The permit shall include all of the conditions required by this code and any conditions set by the director. In the event that application is denied, any deposit made or bond submitted in connection therewith shall be forthwith returned to the applicant. If the application is for a permanent structure and is approved, or conditionally approved, the preparation and filing of an encroachment agreement shall be completed prior to the encroachment.

C. Fee. A fee for encroachment permits may be established by resolution of the city council and shall be paid to the city at the time of application for issuance or renewal of any encroachment permit. Public utility companies operating under franchise agreement with the city may pay annually for permit fees or provide a deposit in advance of the estimated volume of permit applications subject to an agreement approved by the director.

D. Length of time valid. Encroachment permits shall be issued for a specific length of time, which shall not exceed a reasonable time necessary as determined by the director. In the absence of any prior agreement to the contrary, no cause shall be necessary to be shown or proven for the city council to modify, revise, or revoke any encroachment permit or deny an original or renewal request.

E. Cleaning/sweeping. Permittees shall be required to clean/sweep that portion of the right-of-way encroached upon. Unless authorized by the director, no material or debris shall be allowed to remain in the right-of-way. Construction encroachments into roadways shall be swept by street sweepers at the expense of the permittee.

F. Security deposit. Unless waived by the director, a deposit shall be required prior to the issuance of an encroachment permit involving construction in the street right-of-way. The deposit shall be either cash, cashier's check, certified check, certificate of deposit, surety bond issued by a company authorized to do business in the state, or other

form acceptable to the director. The director shall set the amount of the deposit based on potential damage to public property which may be caused by the project or which will result if the project is not completed. All deposits shall remain in force for a period of up to one (1) year from the date of completion of the work authorized by the permit. Utility companies doing work under franchise are exempt from making a security deposit. Upon satisfactory completion of all the terms and conditions of an encroachment permit, and after the expiration of the time period established by the permit, the finance director shall be authorized and directed to return the cash deposit or bond or other security posted by the permittee to the permittee. The amount returned will not include any interest, unless required by prior agreement or law.

G. Other permits. It shall be the duty of any person causing, allowing, making, or maintaining any encroachment in any road or other public place in the city, to procure all permits and licenses, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work as required by other agencies.

(Ord. O-2025-002 § 29, 2025; Ord. O-2021-003, § 21, 2021: Ord. 98-04 §§ 3, 4, 1998; Ord. 98-03 § 1 (part), 1998)

If in the course of events the owner of a previously approved encroachment finds that emergency repairs are necessary to protect the facility, or to protect the investment of the owner and/or to provide continuing service to the public, and the owner of the facility finds that the city office that would issue the encroachment permit is not open, the owner may, after reporting to the police department the nature of any encroachment into the public roadway that may affect vehicle traffic or pedestrians, and after notifying the regional notification center (underground service alert), conduct such work as is necessary to cause the needed repairs, provided that the owner of the facility requests a permit for the work conducted on the next day that the city office that issues encroachment permits is open. Not withstanding any other provisions of this code, no emergency work may be done if the police department determines that the proposed work would represent an unreasonable threat to the public health, welfare or safety. (Ord. 98-03 § 1 (part), 1998)

Unless waived by the director, it shall be the duty of any person making any excavation in any road or other public place in the city to place and maintain lights at each end of the excavation, and at distances as required by the director along the lines thereof, from sunset of each day to sunrise of the next day, until the excavation is entirely refilled and repaired to a safe condition to the satisfaction of the director; and such person shall safeguard the work in accordance with requirements as stated on the permit with such barriers, signs, and measures as may be necessary and proper in each case to provide for the safety of persons, animals, and vehicles using such public roads or other public place. Additional safety measures may be required as prescribed by the director and set out in the permit granted. The permittee shall be responsible to obtain any other permits that may be required. No permit to excavate shall be valid until the applicant has complied with state regulations regarding notification of a regional notification center (underground service alert) and the receipt of an inquiry identification number. (Ord. O-2021-003, § 22, 2021: Ord. 98-03 § 1 (part), 1998)

After any work or project is commenced as permitted under this chapter, the same shall be pursued with due diligence from day to day until completed, and so as not to obstruct the road or other place more than is reasonably necessary. (Ord. 98-03 § 1 (part), 1998)

A. Defects. If the encroachment is not maintained in the manner and within the conditions required by the provisions of this chapter and the permit, the director shall notify the permittee in writing, and if the defect is not remedied within the time specified in the notice, the director shall cause the defect to be remedied in the proper manner and shall restore the road or other public place to its original condition; provided, however, if the defect constitutes an immediate danger to the public health, safety, or welfare, the director shall have authority to immediately remedy the defect or remove the encroachment.

B. Abandoned property. Abandoned or inoperative property must be removed from the right-of-way within five (5) days. Any property left over five (5) days may be removed and stored for up to thirty (30) days. Those properties left unclaimed will be disposed of as unclaimed property. In the event that abandoned or inoperative property constitutes an immediate threat to the public health and safety as determined by the city manager or designee, the property may be removed immediately and stored for up to thirty (30) days and thereafter disposed of as unclaimed property. Notice of such immediate removal shall be provided in writing by mail to the permittee at permittee's address as shown on the permit application.

C. Cost to remedy. Whenever it is necessary for the director to remedy any defect in any work permitted under this chapter or remove any abandoned property, all costs incurred by the city in remedying such shall be deducted from the permittee's deposit, and the balance, if any, remaining after the deduction shall be returned to the permittee; provided, that if the deposit is insufficient to cover the cost of the work, the permittee shall be liable to reimburse the city for such cost in excess of the amount of the deposit, which shall be due and payable upon the permittee being furnished with a written statement of the amount due.

(Ord. O-2021-003, § 23, 2021: Ord. 98-03 § 1 (part), 1998)

Each permittee is solely responsible for any damage or liability occurring by reason of anything done or omitted to be done by the permittee or permittee's agent, employee, servant, or subcontractor; and each permittee shall indemnify and hold harmless the city, its officers, agents, employees, or servants from any and all loss and liability, including cost of defense and attorney fees, resulting from any claims made by reason of or in connection with any work done under the authority of or as a result of any permit issued under this chapter. The permittee shall maintain an insurance policy, naming the city as additionally insured and in an amount as established by the city. The insurance policy shall state that the carrier shall notify the city thirty (30) days prior to canceling the policy for any reason. Encroachments built to approved city standards shall not require insurance coverage following satisfactory completion of the improvement as determined by the director and acceptance by the city, with the exception of permanent encroachments. Insurance for minor construction encroachments and other encroachments may be waived by the director. (Ord. O-2025-002 § 30 (part), 2025; Ord. O- 2021-003, § 24, 2021: Ord. 98-03 § 1 (part), 1998)

A. Any encroachment which will limit the amount of sidewalk available for pedestrians shall further be reviewed to meet concerns for pedestrian safety and to ensure adequate area for pedestrian passage. In residential areas a minimum of four (4) feet of sidewalk shall be clear for pedestrian passage unless waived by the director. In areas with sidewalks subject to high pedestrian activity as determined by the director, the width of the sidewalk which may be blocked by an encroachment shall be as determined by the director.

B. Encroachments shall not be physically in contact with street furniture or street trees.

C. Encroachments shall not restrict pedestrian access to parked vehicles, to buses in bus loading zones, or to access points of abutting property.

D. Encroachments shall not be allowed which in the opinion of the director constitute a hazard to vehicles or pedestrians.

E. All encroachments which provide a public service such as vending machines shall have plainly posted on their face the name and phone number of the party responsible for maintenance and operation. Newsracks that encroach upon public property shall comply with Chapter 12.10 of this Code.

(Ord. O-2025-002 § 30 (part), 2025; Ord. O- 2021-003, § 25, 2021: Ord. 98-03 § 1 (part), 1998)

A. The director may approve issuance of an encroachment permit for sidewalk cafes subject to the following conditions and limitations:

1. Applicants must possess a valid city business license and any necessary county health permits;

2. The use is proper under the city's land use regulations;

3. The applicant shall submit a site plan indicating the location of the operation, relative to surrounding buildings, parking lots and public rights-of-way, as well as such other information deemed necessary by the director;

4. Each permit shall expressly provide that any personal property placed upon the sidewalk pursuant to the permit shall extend no further along the sidewalk than the exterior limits of the merchant's place of business;

5. Each permit shall expressly state, and the permittee shall agree, that in all cases a minimum sidewalk width of five (5) feet shall be kept clear of any obstruction at all times;

6. The permit shall automatically terminate at the relocation, closure, or sale of business;

7. Outdoor preparation of food and bussing facilities are prohibited;

8. The hours of operation of the sidewalk cafe shall be defined in the permit;

9. All furniture and fixtures, including tables, chairs, umbrellas, and planters, shall be movable. Tables and chairs must be fixed to the sidewalk in such fashion that they cannot be moved except by the permittee for the purposes of cleaning, storing or removal as directed by the city. It is preferable that the tables and chairs be a single connected unit. The director must approve the specific table and chair unit proposed to be used by the permittee. Umbrellas must be secured with a minimum base of not less than sixty (60) pounds and shall not encroach into the unobstructed minimum sidewalk area;

10. All furniture used in the operations of the sidewalk cafe shall be removed from the sidewalk and stored indoors whenever the cafe is not in operation;

11. Trash and refuse storage shall not be permitted within the right-of-way and the permittee shall maintain the encroachment area and remove all trash and litter as they accumulate;

12. Any additional conditions the director deems necessary or appropriate.

B. An encroachment permit for a sidewalk cafe may be approved for a maximum period of one (1) year. Thereafter, the director may authorize one-year extensions of the permit. The director may request from the city council a public hearing if, in the director's opinion, circumstances warrant additional or revised conditions or revocation of the permit.

C. Operation of sidewalk cafes shall comply with provisions of the ordinance codified in this chapter and shall be prohibited during repairs or emergencies occurring in the area. The city may also prohibit operation of the sidewalk cafe at any time due to actual problems in the use of the public right-of-way area. To the extent possible, the permittee shall be given prior written notice, but failure to give such notice shall not affect the right of the city to prohibit the cafe's operation at any particular time.

D. As a condition for any encroachment permit for a sidewalk cafe, permittee shall comply with the provisions of Section 12.32.120 of this chapter. In addition to the requirements of Section 12.32.120, the insurance policy shall be in a form, with minimum limits of insurance and with an insurer satisfactory to the city manager or to his or her designee and shall be evidenced by an original endorsement effecting the required coverage and specifying the required thirty-day cancellation notice.

E. Permits for sidewalk sales which encroach on public property or right-of-way and conditions for the operation thereof shall be as set forth in Section 17.121.140 of this code. (Ord. O- 2021-003, § 26, 2021: Ord. 98-04 §§ 6—8, 1998; Ord. 98-03 § 1 (part), 1998)

A. The director may approve issuance of an encroachment permit for newsracks permitted pursuant to Chapter 12.10 of this Code.

B. Placement of newsracks on the Pier and on lateral piers, boardwalks, and promenades along the beach where access for pedestrians and emergency vehicles is limited to the termini of these structures or to limited-access stairs to the beach and where there is unsheltered exposure to wind and weather constitutes an unreasonable interference to the flow of pedestrians and emergency response vehicles, constituting a significant risk to the health and safety of the public. Placement of newsracks on the Pier and on lateral piers, boardwalks and promenades along the beach is, therefore, prohibited.

(Ord. O-2025-002 § 31, 2025; Ord. O-2021-005 § 3, 2021: Ord. O-2021-003, § 27, 2021: Ord. 98-03 § 1 (part), 1998)

Procedures governing the issuance of permits for special events, as defined in Section 12.16.010 of this code, which encroach on public property or right-of-way shall be as established pursuant to Section 12.16.020 of this code. (Ord. 98-03 § 1 (part), 1998)