Part 3 — PROCESS

• A. All applications for a major excavation/ encroachment permit pursuant to this chapter shall be filed with the director. The applicant shall provide a signed plan of the proposed work which, within the limits of the work to be done, includes:

  1. A description of the work intended to be done and the estimated number of working days required to complete the work;

  2. Size and/or location of existing above and underground facilities such as trees, sewers, pipes, conduit and cables, poles, cabinets, boxes, curb, gutter, sidewalk and edge of pavement, affected by the work;

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§ 15.50.320

3. Tying of new and existing facilities to well established lines of record such as monument lines, property lines or to well established physical references such as face of curb or lip of gutter;

4. Clear identification, design, engineering and contents of any structures to be constructed in the public right-of-way;

5. Accurate right-of-way alignment;

6. Clear dimensioning;

7. Definition of all abbreviations and symbols either on the plans, or by posting an up-to-date list with the city department of public works;

8. A legend clearly showing items pertinent to the plan such as lines, boxes, manholes, valves and conduit;

9. A clear delineation of city limit lines;

10. Applicant's job number and city project numbers for development and related projects;

11. A construction cost estimate or engineer's estimate of the cost of the proposed work and improvements in the public right-of-way; and

12. Construction Impact Mitigation Plan pursuant to Part 2 of Chapter 13.36. when applicable.

• B. Applications for a minor excavation/ encroachment permit shall be filed with the director and may be submitted by facsimile to a number designated by the director. The applicant shall provide the information required by the director.

• C. All application fees shall be paid at the time an application is filed or pursuant to an invoice procedure established by the director, in the amount set forth in the schedule of fees adopted by resolution of the city council. If the project qualifies as a special project, the applicant shall pay the fees set forth in the schedule of fees for special projects.

• D. The director may find the permit to be exempt from the fee requirement if the work or instal-

lation is required by the city for its own purposes and not for the benefit of the applicant. (Ords. 25099, 26996.)

• A. The director may issue a permit only upon finding:

  1. All necessary information has been provided to enable an adequate evaluation of the application; and

  2. The issuance of the permit is in the public interest and welfare, considering proper traffic control, safety and welfare of the public, and an absence of conflict with other existing or planned facilities; and

  3. All structures will conform to the requirements of Section 15.50.400; and

  4. The permit is subject to all applicable conditions contained in Section 15.50.500 and Section 15.50.510.

• B. In the event of emergency or urgency, remedial work may be commenced prior to issuance of a minor excavation/encroachment permit. The applicant shall apply for and obtain a minor excavation/encroachment permit within one business day of commencement of work.

• (Ord. 25099.)

• A. The permittee shall notify the city as soon as possible if the permittee finds that the work cannot be performed as approved in any permit and shall submit to the director revised plans for review and approval.

• B. The permittee shall notify the director:

  1. Twenty-four hours in advance of commencement of the project covered by the permit; and

  2. Upon recommencement of the project after twenty-four hours of interruption; and

  3. To request final approval upon completion of the last item of work.

• (Ord. 25099.)

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§ 15.50.400

Part 4

MINIMUM CRITERIA - STRUCTURES

Section:

All structures shall conform to all of the following minimum criteria:

• A. Structures shall be located as follows:

  1. Structures shall be located adjacent to nonresidential properties; or

  2. Structures shall be located adjacent to the sides of rear yards of residential properties, preferably on major streets; or

  3. Structures shall be located as close as possible to the property line. If necessary, the permittee will relocate the sidewalk and transition to match the existing sidewalk.

• B. At the director's discretion, all structures located within two feet of the back of curb shall be protected with a minimum of three steel pipes at least four inches in diameter.

• C. Sight lines shall remain unobstructed at intersections or driveways consistent with the most recent version of the Caltrans Traffic Safety Manual.

• D. All structures shall be enclosed or screened, to the extent possible, to match existing fencing, screening or landscaping.

• E. All structures shall be constructed and treated with appropriate materials which discourage or repel graffiti.

• F. Structures that contain power generating equipment shall meet all of the following minimum criteria that are applicable:

  1. The structure shall contain an automatic excess flow gas shutoff valve or other comparable equipment.

     2. Maximum noise levels emanating from the structure shall be subject to the general plan noise policies.

     3. The cabinet exhaust system and port shall:

        • a. The exhaust temperature shall not exceed one hundred fiftyeight degrees Fahrenheit; and

        • b. The exhaust port shall be affixed with a warning label to indicate the danger of exposure to the exhaust temperature.

        • c. Backup batteries shall be programmed to vary their duration of operation with the length of power outage up to a maximum of thirty minutes. As technology allows, and without increasing the size of the cabinets, cabinets should be retrofitted with higher capacity batteries capable of providing full service operation for a maximum of two hours at full (6.1 fW) load.

        • d. Hazardous materials review will be required as determined by the director.

  • G. No structure shall exceed one hundred ten cubic feet and five and one-half feet in height exclusive of meter panels or pedestals.

  • H. The permittee shall at all times comply with the requirements of this chapter.

• (Ord. 25099.)

Part 5

CONDITIONS

Sections:

15.50.510 Conditions - Structures.

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§ 15.50.600

All permits shall be subject to the following conditions:

• A. All conditions necessary to ensure proper traffic control, public safety and welfare and the lack of conflict with other existing and planned projects, structures or facilities.

• B. An acknowledgment that the permittee agrees to be responsible for any damage caused by its activities to any existing public or private structures or facilities.

• C. The permittee shall indemnify and hold harmless the City of San José and any officers and employees thereof against and from all claims, loss, liability, damages, judgments, decrees, costs and expenditures which the city or such officer or employee may suffer, or which may be recovered from or obtainable against the city or such officer or employee, proximately caused by and growing out of or resulting from the exercise of the permit by the permittee.

• D. All work to be done under a permit shall be completed within six months from the date of issuance.

• E. Permittee is responsible for trench and surface conditions during the time that their facilities remain within the trench.

• F. Any other condition deemed appropriate by the director. If the work is not completed, the permit shall be renewed upon payment of the applicable fee as set forth in the schedule of fees adopted by the city council. If the delay is caused by the city, the permit shall be renewed without charge.

• G. All conditions in the approved Construction Impact Mitigation Plan.

• (Ords. 25099, 26996.)

All permits that approve structures shall include the following conditions:

• A. The permittee shall maintain all structures in a safe and clean manner.

  • B. All enclosures, screening and landscaping shall be maintained in a safe and clean manner by the permittee. In the event the permittee fails to maintain all enclosures, screening and landscaping after notice from the city, the city shall have the right to provide the maintenance and the permittee shall reimburse the city for all costs incurred for the maintenance within thirty days of receipt of a bill for the work done.

  • C. Testing of emergency power equipment shall be limited to weekdays between the hours of 9:00 a.m. to 5:00 p.m.

  • D. The permittee shall promptly remove all graffiti on any structure. In the event the permittee fails to remove all graffiti from the structure within two business days after notice by the city, the city shall have the right to remove any graffiti and the permittee shall reimburse the city for all costs incurred for the removal within thirty days of receipt of a bill for the work done.

  • E. Any other condition deemed appropriate by the director.

• (Ord. 25099.)

Part 6

DENIAL, AMENDMENT OR REVOCATION

Sections:

• A. The director may, in writing, amend or revoke a permit if the director finds any of the following conditions have occurred:

  1. The permit was issued in error or on the basis of incorrect or incomplete information supplied;

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§ 15.50.600

2. The permittee has violated any conditions of the permit;

3. The structures or improvements create a dangerous condition to life or property; or

4. It is necessary to remove and/or relocate the improvements in order to accommodate the use of the right-of-way by the city, or to accommodate future improvements in, along, across, under, through, over or upon the right-of-way by the city.

• B. Notwithstanding the above, any violation of Construction Impact Mitigation Plan requirements, when applicable, shall also be subject to enforcement pursuant to Section 13.36.340 of Chapter 13.36.

• (Ords. 25099, 26996.)

• A. The director shall notify an applicant, in writing, of the director's decision to deny, amend or revoke a permit.

• B. The notice of decision shall state the grounds for denial of the application or amendment or revocation of the permit and shall notify the applicant or permittee of the hearing opportunity pursuant to Section 15.50.620.

• C. The notice of decision shall become final, unless a written request for hearing is received within ten business days after the date of notice of decision.

• D. The denial of an encroachment permit based in whole or in part upon the Construction Impact Mitigation Plan is not subject to appeal under this section, but may be appealed pursuant to the provisions of Part 3 of Chapter 13.36.

• (Ords. 25099, 26996.)

• A. Upon receipt of a timely written request for a hearing on a notice of decision to deny an application for permit or to amend or revoke a permit, the director shall schedule a hearing.

The director promptly shall notify the applicant or permittee of the hearing date, time and location.

• B. The hearing with the director shall be held within ten business days after receipt of the request for hearing.

• C. At the hearing, the permittee or applicant may present any relevant evidence. The hearing will be conducted informally and the technical rules of evidence shall not apply. The permittee or applicant may be represented by any person.

• D. After closing the hearing, the director shall give a decision sustaining, reversing or modifying the decision to deny, amend or revoke the permit. A written notice of final decision shall be hand delivered or sent by mail to the permittee or applicant.

• E. The decision of the director shall be final. (Ord. 25099.)

• A. In the event that the director revokes or amends the permit and determines that it is necessary to relocate or remove improvements:

  1. Permittee shall comply with the terms of any applicable franchise or other agreement regarding removal or relocation of facilities; or

  2. Permittee shall:

     • a. Relocate or remove the improvements at the permittee's sole cost and expense; and

     • b. Permittee shall restore the site to the original condition as of the time of installation of the improvements; and

     • c. Permittee shall complete all removal and restoration work within thirty days of the date of the director's written notice to relocate and remove. The director may extend this date.

(Ord. 25099.)

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§ 15.50.700

Part 7

EXCEPTION

Section:

• A. Nothing herein shall preclude an applicant from requesting an exception from the provisions of this chapter. All applicable fees shall be paid at the time a request for an exception is made.

• B. The director may, but shall not under any circumstances be required to, grant exceptions from the provisions of this chapter.

• C. An exception may be granted pursuant to the procedure set forth in Section 15.50.310 of this chapter. Appeals will be heard pursuant to Section 15.50.610 of this chapter.

• D. The director shall not grant an exception unless it is found that:

  1. Special circumstances applicable to the subject right-of-way deprive the applicant of the ability to install necessary equipment. Such special circumstances shall include without limitation the size, shape, location or surroundings of the subject right-of-way, and the orientation of the structures thereon.

  2. The exception, subject to such conditions as may be imposed thereon by the director:

     • a. Will not impair the general welfare of the neighborhood;

     • b. Will not impair the integrity and character of the zoning district in which the subject property is located;

     • c. Will not create a nuisance or safety hazard; and

     • d. Will not undermine the aesthetic environment of the neighborhood.

• (Ord. 25099.)

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