Chapter 14.21 — ENCROACHMENTS

As used in this Chapter, the following terms shall have the meanings ascribed to them in this Section:

(a)

Minor Architectural Encroachment. Means a Building architectural enhancement that projects no more than six inches into the Right-of- Way or Public Place, and that, in the determination of the Director, does not unreasonably or unsuitably impact the use of the Right-of- Way or Public Place.

(b)

Parkway. Means the area of the right-of-way adjacent to and/or progressing parallel to a traveled way between the edge of the road and adjacent property line.

(Ord. No. 2022-1521, § 2, 9-13-2022)

Except as provided by this Chapter, no Person shall place, repair, maintain, or change any permanent and/or temporary Encroachment, nor perform Encroachment Work, within the City unless authorized pursuant to a Permit issued by the Director.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

Reserved.

(b)

A permit for permanent Encroachment shall run with the Encroachment and inure to the benefit of and be binding on all future owners, encumbrancers, successors-in-interest, heirs, personal representatives, transferees, assignees, and any other parties having or acquiring any right, title, or interest in the Encroachment, any part thereof, and/or any appurtenant Structures or Facilities necessary or desirable for the appropriate operation and maintenance of the Encroachment.

(c)

At the discretion of the Director, the Permittee shall cause to be recorded in the Office of the San Diego County Recorder a covenant against the adjacent private property, in a form approved by the Director, memorializing the terms, maintenance, insurance requirements, and any other City-required provisions. Such covenant shall be record against the property prior to Permit issuance.

(d)

Any future removal, abandonment, or other elimination of the Encroachment shall require prior approval from the Director and be completed to the Director's satisfaction. Removal may be initiated by the Director as per Section 14.21.090.

(Ord. No. 2022-1521, § 2, 9-13-2022)

(a)

Each Applicant for a Permit required by this Chapter shall, prior to issuance of the Permit, provide proof of insurance, to the satisfaction of the Director, and in accordance with requirements set forth in City policies in effect at that time.

(b)

Permittee shall maintain such satisfactory insurance for the duration of the Encroachment.

(Ord. No. 2022-1521, § 2, 9-13-2022)

At the time of making an application for a Permit under this Chapter, the Applicant shall pay the required fees and deposits as may be set forth in the effective fee schedule approved by the Director. In addition, the Permittee shall make the ongoing payment to the City for the continued use of the Right-of-way or Public Place, as may be required by the Director.

(Ord. No. 2022-1521, § 2, 9-13-2022)

The following are not subject to the provisions of this Chapter, but shall otherwise comply with permitting requirements in this Code:

(a)

Encroachments otherwise allowed under a separate City-approved agreement.

(b)

Improvements installed under an existing franchise agreement.

(c)

Minor Architectural Encroachments.

(d)

Encroachments allowable under the adopted Building Code.

(e)

Vegetation not exceeding 24 inches in mature height within the Parkway.

(f)

Subsurface irrigation lines within the Parkway.

(g)

Mailboxes.

(h)

Standard concrete or asphalt Driveways.

(Ord. No. 2022-1521, § 2, 9-13-2022)

Any Encroachment shall comply with the following requirements:

(a)

The Encroachment shall not affect a pedestrian pathway so as to make it non-compliant with the Americans with Disabilities Act.

(b)

The Encroachment shall not create a hazard to the public as determined by the Director.

(c)

The Encroachment Work must comply with other provisions of Chapter 14.15.

(d)

Permittee shall be required to get all applicable Permits required for the performance of Encroachment Work.

(e)

The Director shall not approve the application unless satisfied that the work proposed to be done will not significantly damage the Right-of-way or Public Place nor create an unreasonable risk of harm to Persons or property.

(Ord. No. 2022-1521, § 2, 9-13-2022)

Permittee shall, at its sole cost and expense and without any cost or expense to the City, maintain the Encroachment in a good order and in a clean, secure, safe, and sanitary condition satisfactory to the Director and in compliance with all applicable local, state, and federal laws, rules, ordinances, and regulations. Vegetation, irrigation, Driveways, and other such encroachments are the obligation of the adjacent property owner that installed the Encroachment and/or desires to retain the Encroachment, unless the City has assumed in writing the obligation to maintain said Encroachment. If the adjacent property owner does not assume the obligation in writing, the Encroachment may be deemed abandoned by the Director at their discretion. In no event shall the City be obligated for the costs and expense necessary to maintain such Encroachment; nor does the City assume any obligations or risks associated with the same.

(Ord. No. 2022-1521, § 2, 9-13-2022; Ord. No. 2024-1549, § 2(Exh. A), 9-10-2024)

The Director in their discretion may immediately remove, or require the removal or relocation of any Encroachment, lawful or unlawful, that:

(a)

Obstructs or prevents the use of a Public Place;

(b)

Is not sufficiently maintained to preserve its health and/or visual appeal;

(c)

Is deemed abandoned by the Director;

(d)

Presents a hazard to motorists, pedestrians, or other users of a Public Place;

(e)

Consists of, or contains advertising, or other material that does not consist of City speech as governed by other Chapters of this Code;

(f)

Is, at the sole discretion of the Director, no longer in the best interest of the City to remain in place; or

(g)

Permittee fails to pay ongoing Permit consideration.

(Ord. No. 2022-1521, § 2, 9-13-2022)

The Applicant shall agree to indemnify and/or hold the City, each of its officers and its employees, harmless from any liability or responsibility for accident, loss, or damage to persons or property, arising by reason of the Encroachment or Encroachment Work done by the Applicant, or their agents, employees, or representatives.

(Ord. No. 2022-1521, § 2, 9-13-2022)

The violation of any provision of this chapter, or failure to comply with any of the mandatory requirements of this chapter shall constitute a misdemeanor; except notwithstanding any other provisions of this chapter, any such violation constituting a misdemeanor under this chapter may, in the discretion of the City be charged and prosecuted as an infraction. Penalties, fines, and procedures for violations shall be in accordance with Chapter 1.12 of this Municipal Code. Additionally, violations of this chapter are deemed adverse and detrimental to the public health, safety, and welfare and, therefore, constitute a public nuisance. The assistance of a law enforcement officer may be enlisted to arrest violators as provided in the California Penal Code and/or to issue a citation and notice to appear.

(Ord. No. 2022-1521, § 2, 9-13-2022)

By applying for and obtaining a Permit pursuant to this Title, the Permittee agrees that in the event the Permittee fails to comply promptly with the terms of the Permit and perform and complete the work according to the plans, if any, or fails to comply with any other provisions of this Title, the City may elect to perform and complete the work, in which event the Permittee shall pay to the City upon demand of the Director and prior to actual performance and completion of the work by the City or its contractor, the cost of performing and completing the work according to such Permit, the plans, if any, and the specifications either by the use of the City's forces or by an independent contractor, whichever method the Director deems appropriate, and in the event the Permittee fails to pay such cost to the City upon demand, the City may bring an administrative action or seek redress in a court of competent jurisdiction to recover such cost together with reasonable attorneys' fees and all associated costs, including witness fees.

(Ord. No. 2022-1521, § 2, 9-13-2022)

Any work performed contrary to the Permit, the plans, if plans are made, is declared to be a public nuisance, and the City Attorney may immediately initiate proceedings necessary for the abatement, enjoinment, and removal thereof in the manner provided by law.

(Ord. No. 2022-1521, § 2, 9-13-2022)