Chapter 5-1 — ENCROACHMENTS

Article 1 General Provisions(Legislative History: Ordinance No. 84-020, 10/1/84; Ordinance No. 2011-014, 12/5/11 (Section 5-1-100); Ordinance No. 2017-008, 5/1/17 (Section 5-1-100); Ordinance No. 2019-001, 1/7/19 (Section 5-1-100))

Unless the context otherwise requires, the definitions contained in this section shall govern the construction of this Chapter.

Encroach, Encroachment. "Encroach" or "encroachment" includes going upon, over, under, or using any street in such a manner as to prevent, obstruct, or interfere with its normal use, including, but not limited to, the performance thereon of any of the following acts:

(1) Excavating, filling or disturbing the street;

(2) Erecting or maintaining any post, pole, fence, guard rail, wall, loading platform, or other structure on, over or under the street;

(3) Planting any tree, shrub or other growing thing within the street;

(4) Placing or leaving on the street any rubbish, brush, earth or other material of any nature whatever;

(5) Constructing, placing, or maintaining on, over, under, or within the street any pathway, sidewalk, driveway, or other surfacing, any culvert or other surface drainage or sub-surface drainage facility, any pipe, conduit, wire, or cable;

(6) Traveling on the street by any vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit;

(7) Moving any building in, into, through or from the City of San Leandro on, over or through any street;

(8) Lighting or building a fire;

(9) Constructing, placing, planting or maintaining any structure, embankment, excavation, tree or other object adjacent to the street which causes or will cause an encroachment;

(10) Placing or causing to be placed any material, machinery or apparatus on the street for building, paving or other purposes for over 24 hours;

(11) Placing street furniture, including bicycle racks, within the public right-of-way;

(12) Deploying, installing, or locating of small cell wireless facilities upon existing or new structures within the public roadway right-of-way;

(13) Using, accessing, or connecting to conduits, circuits, panels, or related infrastructure in connection with the deployment, installation, or location of small cell wireless facilities in the public roadway right-of-way.

Permittee. "Permittee" means any person that proposes to do work or encroach upon a street as herein defined and has been issued a permit for said encroachment by the Public Works Director.

Person. "Person" shall mean any individual, firm, partnership, association or corporation, including any public agency or utility, or any agent or representative thereof and includes successors in interest.

Public Works Director. "Public Works Director" shall mean the San Leandro Public Works Director, Engineering and Transportation Director or designee.

Street. "Street" shall mean the full width of the right-of-way of any street, as defined in the California Vehicle Code used by the general public, whether or not such street has been accepted as and declared to be part of the City system of streets, including streets forming a part of the State Highway System. "Street" also includes easements where the City is the grantee of the easement and property owned by the City of San Leandro, the Redevelopment Agency of the City of San Leandro or the Parking Authority of the City of San Leandro.

Small Cell Wireless Facilities. "Small cell wireless facilities" shall mean a wireless
telecommunications facility that meets each of the following conditions:

(1) The structure on which antenna facilities are mounted:

(a) Is 50 feet or less in height, or

(b) Is no more than 10% taller than other adjacent structures, or

(c) Is not extended to a height of more than 10% above its preexisting height as a result
of the collocation of new antenna facilities; and

(2) Each antenna (excluding associated antenna equipment as defined by 47 C.F.R.
§ 1.1320(d)) is no more than three cubic feet in volume; and

(3) All other wireless equipment associated with the facility are cumulatively no more than 28
cubic feet in volume; and

(4) The facility does not require antenna structure registration under 47 C.F.R. Chapter 1,
Subchapter A, Part 17; and

(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and

(6) The facility does not result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in 47 C.F.R. § 1.1307(b).

This Chapter shall not apply to any officer or employee of the City acting in the discharge of his or her official duties; to any work being performed by any person or persons, firm or corporation under contract with the City; or when permission to encroach has been expressly granted by the City Council.

This Chapter shall not prevent any person from maintaining any pipe or conduit lawfully on or under any street, or from making excavation, as may be necessary, for the preservation of life or property when an urgent necessity therefor arises, provided that said person shall notify the Public Works Director by telephone the day such work is performed or the day the offices of the

City are again opened. Said person shall then apply on the proper form within five working days confirming the work performed.

Any permit granted under this Chapter shall be subject to the right of the City or any other person entitled thereto, to use that part of the street for any purpose for which it may be lawfully used, and no part of the street shall be unduly obstructed at any time. All work or use shall be planned and executed in a manner that will least interfere with the safe and convenient travel of the general public.

No application will be approved nor permit issued for constructing or maintaining a loading platform upon or in any street or for erecting or maintaining therein or thereon a post, pole, column or structure for support for advertising signs, except as provided in Chapter 4 of Title 12 of the San Leandro Administrative Code.

(a) Permittee shall be responsible for all liability for personal injury or property damage which may result from work permitted and done by permittee under the permit, or proximately caused by failure on permittee's part to perform his or her obligations under said permit in respect to maintenance. If any claim of such liability is made against the City, its officers, or employees, permittee shall defend, indemnify and hold them and each of them, harmless from such claim including any claim based on the active or passive negligence of the City, its officers or employees, insofar as permitted by law.

(b) Permittee shall be required to obtain public liability insurance in such form and amount as may be required by the Public Works Director to protect the City, its officials, officers, directors, employees and agents from claims which may arise from permittee's operations under the permit.

CITY.

If the work or use authorized by a permit is unsafe, in violation of this Chapter, or is unduly delayed by the permittee, the Public Works Director may, upon written notice, revoke the permit and complete the work or any portion thereof, or make the site safe or return it to the same condition existing prior thereto. The actual cost of performing such work by the City plus overhead shall be charged to and paid for by the permittee.

(a) No person shall paint, mark, or write on, or post or otherwise affix, any handbill or sign to or upon any public property including, but not limited to, any sidewalk, crosswalk, curb, curbstone, street, lamp post, hydrant, tree, shrub, tree stake or guard, railroad trestle, electric light or pier or telephone or telegraph pole, or wire appurtenance thereof or upon any fixture of the fire-alarm or police telegraph system or upon any lighting system, public bridge, drinking fountain, street sign, street light or traffic sign.

(b) Any handbill or sign found posted or otherwise affixed upon any public property contrary to the provisions of this section may be removed by the City. The person responsible for any such illegal posting shall be liable for the cost incurred in the removal thereof and the City Manager or designee is authorized to effect the collection of said cost.

(c) Nothing in this section shall apply to the installation of a metal plaque or plate in a sidewalk commemorating an historical, cultural or artistic event, location or person for which the City Manager or designee has granted approval.

(d) Nothing in this section shall apply to the painting of house numbers upon curbs done in accordance with the provisions of Section 5-1-620.

Article 2

Permit Requirements(Legislative History: Ordinance No. 2019-001, 1/7/19 (Section 5-1-200))

No person shall encroach or cause to be made any encroachment of any nature whatever within, upon, over or under the limits of any street in the City, or make or cause to be made any alteration of any nature within, upon, over, or under such street; or construct, put upon, maintain or leave thereon, or cause to be constructed, put upon, maintained or left thereon, any obstruction or impediment of any nature whatever; or remove, cut or trim trees thereon; or set a fire thereon; or place on, over or under such street any pipe line, conduit or other fixture; or move over or cause to be moved over the surface of any street or over any bridge, viaduct, or other structure maintained by the City any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the street; or place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment in such a way as to endanger the normal usage of the street without having first obtained a permit as required in this Chapter. No permit shall be granted pursuant to this Chapter for any small cell wireless facilities encroachment of any nature upon any existing or new structure in the public roadway right-of-way unless a permit applicant provides evidence satisfactory to the City demonstrating the property owner's consent or other form of proof demonstrating applicant's legal right to use the property upon which applicant proposes to attach the small cell wireless facility. The applicant must demonstrate evidence satisfactory to the City for each and every proposed small cell wireless facility.

The Public Works Director shall provide an application form which shall contain such information as in the judgment of the Public Works Director is necessary, including information to establish the exact location, nature, dimensions, duration, and purpose of the proposed use or encroachment. The application shall be filed with the Public Works Director.

The application shall be accompanied by maps, plats, sketches, diagrams, or similar exhibits to the size and in the quantity as the Public Works Director shall prescribe on which shall be plainly shown any and all information necessary to locate, delineate, illustrate, or identify the proposed use or encroachment and the right of the applicant to so use or encroach thereon.

The application shall be accompanied by the written order or consent to any work thereunder which may be required by law or any other public agency or body.

Applications may be approved, conditionally approved, or denied. The Public Works Director shall act on the application within 30 working days. Where the Public Works Director finds that the requirements of this Chapter have been met and the required fees and changes have been paid, he or she shall issue a permit for the use or encroachment, attaching such conditions as he or she may deem necessary for the health, safety and welfare of the public and for the protection of the City. If the Public Works Director finds the requirements of this Chapter have not been met he or she shall deny the permit, giving the reasons therefor in writing.

Fees for issuance of the permit and charges shall be established by the City Council from time to time by resolution upon recommendation of the Public Works Director.

A public agency which is authorized by law to establish or maintain any works or facilities in, under, or over any public street shall not be subject to a fee for issuance of a permit but shall be required to pay all other charges. A public agency or utility may at the option of the Public Works Director arrange to be billed for the required fees and charges.

Prior to issuance of a permit, unless waived by the Public Works Director, the permittee shall deposit with the City cash, a certified or cashier's check or an approved surety bond in a sum to be fixed by the Public Works Director as sufficient to reimburse the City for costs of restoring the street to its former condition and, in the case or an encroachment permit for moving a building, sufficient to reimburse the City for the estimated costs of doing any work necessary to enable the building to be moved or to restore the street of any private property damaged by the move or altered to allow the building to be moved. If the permittee anticipates applying for a number of permits throughout the year he or she may file a cash deposit or approved surety bond in a sum estimated by the Public Works Director as sufficient to cover the permittee's activities during any 12 month period.

The Public Works Director may require an additional bond or cash deposit at any time when in his or her opinion the amount of the bond or cash deposit previously made is insufficient.

The condition of any bond or cash deposit made pursuant to this Article shall be that the permittee will diligently and with good faith comply with this Chapter and the terms and conditions of the permit.

Any bond or cash deposit required by the Public Works Director pursuant to this Chapter shall be payable to the City of San Leandro. Upon satisfactory completion of all work authorized in the permit, and fulfillment of all conditions of the permit, including the guaranty period set forth in Section 5-1-335, the bond or cash deposit will be released, provided that the Public Works Director may, in his or her discretion, allow the earlier release of the bond or cash deposit.

Cash deposits or bonds will not be required of any public utility holding a franchise with the City or public agency which is authorized by law to establish or maintain any works or facilities in, under, or over any street.

The permittee shall complete the work or use authorized by a permit issued pursuant to this Chapter within 90 days from date of issuance, unless a different period is stated in the permit. If the work or use is not completed within 90 days, or within the time stated in the permit, then the permit shall become void, and the Public Works Director may restore the street in accordance with Section 5-1-130. An extension of time for good cause may be granted by the Public Works Director when requested in writing.

The permittee shall keep any permit at the work site or in the cab of a vehicle when movement thereof on a street is involved, and the permit must be shown to any authorized representative of the Public Works Director or law enforcement officer on demand.

No changes may be made in the location, dimension, character or duration of the encroachment or use as granted by the permit except upon written authorization of the Public Works Director.

No permit issued pursuant to this ordinance shall be transferable or assignable to any other person.

CHAPTER.

Issuance of a building permit, electrical permit, plumbing permit, swimming pool permit and/or demolition permit which may be required by law at the same location and in connection with the same activity for which a permit would be issued hereunder shall not constitute authorization to encroach on any street.

Article 3

Performance of Work(Legislative History: Ordinance No. 2019-001, 1/7/19 (Section 5-1-300))

The Public Works Director shall from time to time establish such standards and specifications as he or she deems necessary for the proper construction, use and maintenance of encroachments and for the safety, protection and convenience of the public, which standards and specifications shall be applicable to all permittees. Any work or use done under all permits shall conform to the City's standard plans and specifications, unless otherwise required by the Public Works Director. All work or use pertaining to the deployment, installation or location of small cell wireless facilities shall conform with applicable general guidelines and specific design criteria set forth in this Code, and administrative guidelines established by the City and in effect, as may be amended from time to time. If inadequate provision is made for the safety, protection and convenience of the public by the permittee, the Public Works Director may take such action as he or she deems necessary for the protection of the public and shall charge the permittee therefor.

The permittee shall comply with all applicable federal, state and local laws and regulations, including Department of Industrial Relations of the State of California (CAL-OSHA) rules and regulations.

The permittee shall allow the Public Works Director to inspect any or all work done pursuant to the permit at reasonable times.

The permittee shall notify the Public Works Director at least 24 hours in advance of beginning work. If appropriate the permittee shall give such advance notice as may be required by the Public Works Director to the Police Department and/or Fire Department of the location and nature of the proposed work.

Upon completion or the work, acts or things for which the permit was issued, or when required by the Public Works Director, the permittee shall replace, repair or restore the street at the place of work to the same condition existing prior thereto, unless otherwise provided in the permit. The permittee shall remove all obstructions, impediments, material or rubbish caused to be or placed upon the street under the permit, and shall do any other work or perform any act necessary to restore the street to a safe and usable condition.

If the work, use or encroachment authorized in the permit shall interfere with the established drainage, the permittee shall provide for proper drainage as directed by the Public Works Director.

Upon completion of all work authorized in the permit, the permittee shall notify the Public Works Director in writing. No work shall be deemed to be completed until such notification of completion is given and final inspection has been made by the Public Works Director unless such final inspection is waived by the Public Works Director in writing.

After completion of all work, the permittee shall exercise reasonable care in monitoring and maintaining the area affected by the encroachment. For a period of two years after final inspection of the work by the Public Works Director or the date of waiver of final inspection, the permittee shall repair any injury or damage to any portion of the street which occurs as the result of work done under the permit, including any and all injury or damage to the street which would not have occurred had such work not been done. Any public utility, public agency or franchisee which is authorized by law or contract to establish or maintain any works or facilities in, under or over any street shall monitor, maintain, and/or repair the street or any portion of it where the public utility, public agency or franchisee has made any excavation for the life of any works or facilities contained in or under the street.

The permittee shall repair any injury or damage in any portion of the street, resulting from the work done under the permit within the period of time required by the Public Works Director. In the event that the permittee fails to act timely or should repair or replacement be required before the permittee can be notified or can respond to notification, the City may make or cause to be made the necessary repairs or replacements or perform the necessary work and the permittee shall be charged with all the expenses incurred in the performance of said work, including overhead.

If any future construction, reconstruction, or maintenance work by the City or required by the City on a street requires the relocation, removal or abandonment of installations or encroachments in, on or under a street, the permittee owning, controlling, or maintaining such installations or encroachments shall relocate, remove or abandon the same at his or her sole expense. When removal, relocation or abandonment is required, the Public Works Director shall give said permittee a written demand specifying the place of relocation, or that the installations or encroachment must be removed or abandoned. If said permittee fails to comply with said instructions, the City may cause the removal, relocation or abandonment of the encroachment at the expense of the permittee.

Article 4

Sidewalks, Driveways, Curbs(Legislative History: Ordinance No. 1192 N.S., 2/9/59; Ordinance No. 1278 N.S., 8/22/60)

It is hereby declared to be unlawful for any person to repair or construct, or cause to be repaired or constructed by private contract in the City of San Leandro any sidewalk, driveway, curb, gutter, or paving, or to cut any curb for the purpose of constructing a driveway, or to begin excavation for the purpose of constructing a sidewalk, driveway, curb, gutter, or paving within any street without first obtaining a permit as required in Article 2 of this Chapter.

When a driveway shall permanently cease to be used, the curb cut therefor, and all or a portion of the driveway, as determined by the Public Works Director, shall be removed and standard curb, gutter and sidewalk shall be constructed. The property owner shall remove the curb cut and driveway and construct curb, gutter and sidewalk or cause same to be removed and constructed, within 30 days of receiving written notice from the Public Works Director to do so. Should the property owner fail to perform such work or cause it to be performed within said 30 days, the Public Works Director shall have such work done at the expense of the property owner. The provisions of this section shall apply to all existing driveways whether or not the use thereof was heretofore abandoned, as well as to all such driveways which are constructed after the effective date of this section.

No building permit shall be issued under the terms of this Code for construction, additions or remodeling on any lot, tract, or parcel of land on the street frontage of which the sidewalk, curb, or gutter is not complete, unless said building permit is accompanied by the issuance of a permit under the terms of this Chapter for the completion of said improvements on the street frontage; except that if the Public Works Director determines that it is in the public interest he or she may waive all or a portion of the improvements required by the provisions of this section.

Any person owning real property in the City shall repair any dangerous or defective sidewalk lying in front of or along the side of his or her property. Any tenant of real property in the City shall report to the Public Works Director in writing any dangerous or defective sidewalk which exists in front of or along the side of property occupied by him or her. If, as a consequence of any sidewalk being dangerous or defective sufficient to endanger persons passing thereon, any person exercising ordinary care to avoid the danger who proximately suffers damage to his or her person or property because of a dangerous or defective sidewalk shall have recourse for such damages against the person failing to repair such defect or against the person failing to report the defect.

The City of San Leandro hereby adopts by this reference the provisions of Chapter 22, Part 3, Division 7 of the Streets and Highways Code for purpose of maintaining and repairing sidewalks and assessing the costs thereof. The said provisions shall be supplementary and alternative to all other authority of the City of San Leandro, and the Public Works Director is hereby authorized at his or her sole discretion to undertake sidewalk repairs in any other manner deemed necessary and proper. This section shall not be construed as creating an additional cause of action or liability on behalf of any property owner, person or the City.

It shall be unlawful for any person to drive a vehicle across a sidewalk unless the vehicle is driven on a driveway constructed for that purpose.

Article 5

Moving Buildings, Oversized Vehicles or Objects

No encroachment permit shall be issued under Article 2 for any encroachment as defined in Section 5-1-100(a)(6) and (7) unless the Public Works Director finds that:

(a) Any building as defined in Section 5-1-100(a)(7), except a building being moved out of the City meets the City building code requirements in effect at the time the building was constructed except as otherwise required by the Public Works Director; and

(b) All applicable Federal and State regulations have been complied with.

No building, oversized vehicle or object being moved on, over or through any street shall be allowed to remain in any one location on such street for a longer period than necessary to move the building, oversized vehicle or object along its route except with the written consent of the Public Works Director.

The permittee shall comply with the general laws regulating travel over a street, including posted signs or notices which limit speed or direction of travel, or the weight, width or height that may be moved thereon or thereover, or otherwise restrict or control travel on a street.

In the event that the moving of any building, oversized vehicle or object for which a permit shall have been granted hereunder makes it necessary to move, remove, or displace any pole or other structure supporting the wires, cables or other equipment of any public utility in the City of San Leandro, or to cut, displace or change the location of any wire, cable or other equipment upon said poles or structure, the permittee shall notify the owner or owners of such pole or structure and/or the wires, cables or other equipment thereon, at least five working days prior to the time that the moving of such building, oversized vehicle or object will necessitate the removal of such obstructions.

(a) The permittee shall not at the expiration of said time of notice or at any time, cut, move or in any way disturb such public utility or city property; and, unless otherwise required or authorized by the Public Works Director, such work shall be done only by the authorized workmen of the public utility interested or, if City property, by City employees.

(b) The permittee shall pay to said public utility, or to said City of San Leandro, as the case may be, any and all costs or expenses for the removal, rearrangement and/or displacement of any pole or other structure or equipment thereon or of any damage to such property.

In the event that the moving of any building, oversized vehicle or object for which a permit shall have been granted hereunder makes it necessary to trim, move, remove or replant any tree, plant or shrub belonging to or under the control of the City of San Leandro, the permittee shall notify the Public Works Director at least 48 hours prior to the time that the moving of such building, oversized vehicle or object will necessitate the removal of such obstructions.

(a) The permittee shall not at the expiration of said time or notice or at any time, move, remove, replant or otherwise disturb such trees, plants or shrubs; and such work shall be done only by City employees unless otherwise approved and so ordered by the Public Works Director.

(b) The permittee shall pay to said City of San Leandro any and all costs or expenses for the trimming, moving, removing or replacing of trees, plants or shrubs or of any damage thereto.

Article 6

Miscellaneous(Legislative History: Ordinance No. 84-02, 1/16/84; Ordinance No. 2011-014, 12/5/11 (Sections 5-1-645, 5-1-650); Ordinance No. 2017-008, 5/1/17 (Sections 5-1-650, 5-1-655))

Any permit issued hereunder may be revoked by the Public Works Director for violation of the provisions of this Chapter or if the permitted activity poses an imminent threat to the public health, safety or welfare.

An applicant or permittee may appeal the decision of the Public Works Director concerning the denial or revocation of a permit to the City Manager pursuant to the provisions of Title I, Chapter 9. The City Manager may deny the appeal or grant the appeal with terms and conditions necessary to protect the public health and safety.

All permittees and other persons maintaining permanent facilities within a street shall keep up-to-date records of the location and description of all such facilities, which records shall be furnished to the Public Works Director upon request. As used herein, "facilities" shall include, but shall not be limited to, underground pipes, wires and tanks.

All mail boxes shall be placed in accordance with the rules and regulations of the United States Post Office Department, but no box shall be so placed within the street as to endanger the life or safety of the traveling public.

It shall be unlawful for any person, without first obtaining a permit under this Chapter, to solicit on a commercial or donation basis, to place or maintain any number, figure, letter, carving, drawing, design, or other marking upon any street; except that markings for the purpose of identifying survey, utility or construction locations shall not be subject to this Chapter. A permit for placing or maintaining numbers, figures, letters, carvings, drawings, designs or other markings under this Chapter may be issued only to non-profit organizations which have their principal and permitted meeting place within the City limits and have been organized and established within the City for a minimum of one year continuously preceding application for a permit.

Any monument of granite, concrete, iron or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any street, property subdivision, or a precise survey point or reference point shall not be removed or disturbed or caused to be removed or disturbed without first obtaining permission from the Public Works Director to do so. Replacement of removed or disturbed monuments will be at the expense of the permittee.

(a) No hedge, shrub, or other planting whatever, fence or similar structure shall be planted, erected or maintained in a street without a permit. No encroachment of any nature will be permitted or maintained which impedes, obstructs, or denies such pedestrian or other lawful travel, or which impairs adequate sight distance for safe pedestrian or vehicular traffic.

(b) Maintenance. The permittee or property owner shall maintain all hedges, shrubs, walls, fences or similar structures erected for landscaping purposes in a neat and orderly condition; if such structures are not so maintained, the Public Works Director may direct that permittee or property owner to remove the same and restore the street to its former condition, at the expense of the permittee or property owner.

(c) Lawns. Any person otherwise entitled to may maintain a lawn of any grass, or type not prohibited by other law, within the street without a permit. The lawn shall not extend into the roadway or walkway nor into the drainage ditches, gutter or other drainage facilities.

No person shall store any item of business inventory, including vehicles, upon any street or sidewalk.

The provisions of this Chapter shall not be construed to impair or prohibit the use of streets for those activities described in Chapter 20 of Title IV of this Code, relating to parades and assemblies, or to the exercise of any right or franchise guaranteed by the general laws and constitution.

Bicycle racks shall not be placed in the City-owned right-of-way without permission from the Public Works Director or designee. Permitted bicycle racks shall be installed following the regulations specified in Title 8 Chapter 12 of the San Leandro Administrative Code.

Parklets shall be temporary spaces in the public right-of-way for the use of the general public that are privately constructed and maintained according to permits issued by the City that in addition to such requirements of the San Leandro Municipal Code also shall meet the requirements in Title 8, Chapter 13 of the San Leandro Administrative Code.

(a) Parklets shall remain publicly accessible with signage to this effect.

(b) Table service is not permitted and neither alcohol nor smoking are allowed at a parklet.

(c) Commercial signage and advertising are not permitted on parklets.

The Public Works Director is designated as the enforcement authority for purposes of enforcing the provisions of this Chapter.