Chapter 13.37 — ENCROACHMENT PERMITS

This Chapter is adopted to protect and preserve access to and unobstructed use of public property; provide standards for the control, inspection and maintenance of private improvements within public property; and protect the safety, health and general welfare of the public.

(Ord. 29966.)

The definitions set forth in this Section shall have the following meanings for the purposes of this Chapter.

A.

"Applicant" means a person or entity who applies for a Permit pursuant to this Chapter.

B.

"Director" means the Director of Public Works for the City of San José or such other person that the City Manager may designate to administer the provisions of this Chapter.

C.

"Encroachment" means any structure, improvement or object of any kind or character, that is placed, installed or constructed, temporarily or permanently on, under, over or across any Public Property, but excludes improvements required to be installed or constructed on Public Property as a condition of approval of a land use entitlement or pursuant to a public works project, or anything placed, installed, constructed or maintained on Public Property by or for the City.

D.

"Encroachment Agreement" means an agreement substantially in the form approved by the City Council that shall be executed as a condition of approval of an Encroachment governed by this Chapter.

E.

"Major Encroachment" means any Encroachment that is a non-temporary improvement or object not readily removable with minimal alteration or damage to adjoining Public Property or private property, including, without limitation, footings, foundations, basements, vaults, earth retaining structures, walls, roof overhangs and ramps. Major Encroachment shall include any Encroachment that is not a Minor Encroachment.

F.

"Minor Encroachment" means any Encroachment that is a temporary, non-structural improvement or object readily removable with minimal alteration or damage to adjoining Public Property or private property, such

as planters, benches, bicycle parking, facilities for special activities, dining facilities associated with an adjacent business, underground conduit crossings, special driveways and similar Encroachments.

G.

"Permit" means the license issued by the City pursuant to this Chapter that authorizes an Encroachment.

H.

"Permittee" means the person or entity who has obtained a Permit pursuant to this Chapter.

I.

"Public Property" means any right-of-way or other public easement owned or controlled by the City that has been offered for dedication to the public, whether express or implied, or has been dedicated to the public, whether express or implied. Public Property encompasses all of the physical area that the public or City may be entitled to use pursuant to law, including below-grade and air space areas.

(Ord. 29966.)

Part 2 - GENERAL PROVISIONS

Encroachments placed, installed, constructed or maintained without authorization from the City are unlawful and the owner of the Encroachment shall either remove it at their sole expense or obtain authorization under this Chapter or another provision of this code. The Director shall send written notice notifying the owner of the unlawful Encroachment. If the owner does not remove the Encroachment and restore the Public Property or apply for authorization to maintain the Encroachment within thirty (30) days of the City's notification, the City shall have the right to immediately remove the illegal Encroachment and restore the Public Property, and the owner shall be liable for all of the City's direct and indirect costs and expenses.

(Ord. 29966.)

A.

Any authorization from the City to maintain an Encroachment shall be subject to the right of the City and the general public, or any other person, firm, corporation, district or other body of persons entitled thereto, to use the Public Property for any purpose for which it may be lawfully used, and no part of the Public Property shall be unduly obstructed at any time. All work or use under a Permit shall be planned and executed in a manner that will least interfere with the safe and convenient use of the Public Property. Without the pre-authorization of the City Council, no Public Property shall be closed, public access or use to Public Property be denied, or access to adjacent private property be impaired.

B.

The City's approval or issuance of a Permit shall not be construed to waive its immunities under applicable law or limit its regulatory, governmental or legislative authority, including police powers to protect the public health, safety and welfare or to protect the environment.

(Ord. 29966.)

A.

No Permit shall be issued unless the proposed Encroachment complies with the City of San José General Plan and any applicable Specific or Area Plan, this Chapter and other chapters of this code, and all other applicable laws, ordinances, codes and regulations.

B.

The issuance of a Permit shall not exempt the Permittee from obtaining and complying with any other required permits or approvals.

C.

An Encroachment Agreement shall be executed before any permit is issued by the City that would allow the installation or construction of an Encroachment governed by this Chapter.

(Ord. 29966.)

A Permit pursuant to this Chapter shall not be required for any of the following:

A.

Encroachments authorized by other provisions of this code, including, without limitation, Chapters 13.08, 13.14, 13.18, 13.20, 13.36, 15.50, 17.48 and 20.100, which shall be governed by such other code provision;

B.

Encroachments authorized prior to the adoption of this Chapter by resolution of the City Council or a written agreement with or permit from the City, which shall be governed by the terms of such resolution, agreement or permit; and

C.

Encroachments for windows, balconies and architectural features as set forth in Section 3202.3.2 of the California Building Code, as adopted by the City and as the same may be amended from time to time, provided that such Encroachments are part of a project located in a General Plan-designated Planned Growth Area and shall otherwise be governed by this Chapter.

(Ord. 29966.)