Sierra County Municipal Code Ch. 35.05 Encroachments

This title shall be known as the Sierra County encroachment ordinance, enacted pursuant to California Streets and Highways Code and following the California Constitution, Article XI, Section 7, for the purpose of protecting the safety of the public traveling on public roads; protecting public roads from unwarranted damage; and protecting the public investment in public roads. (Formerly 35.01)

For the purpose of this title, the following words and/or phrases are defined and shall have the meanings ascribed to them:

“Applicant” means any person, firm, company, corporation, association, public agency or organization making written applications to the Department of Public Works for an encroachment permit.

“Board” means the Sierra County Board of Supervisors.

“County highway” means all or any part of right-of-way; whether owned in fee; by easement; by conveyance on a subdivision map; or by prescription of a county-owned or maintained highway, street, road, alley, path, or property including the space over it and the ground under it whether or not such entire area is actually used for highway purposes. “Highway” also includes any highway, street or road included with the maintained county highway system as provided in the Cal. Sts. & High. Code § 2121.

“Department” means the Sierra County Department of Public Works and its authorized officials.

“Director” means the Sierra County Director of Public Works, Road Commissioner or Director of Transportation.

“Encroachment” means any use or action with respect to a county highway or county property for which a permit is required by this title, including but not limited to any tower, pole, pole-line, pipe, pipeline, transmission line, driveway, road, fence, sign, embankment, cut, fill, billboard, stand, building, tree, lighting, monument, debris, abandoned and/or inoperable vehicle, or any structure, object, or use of any kind or character not particularly identified or mentioned in this section which is caused or placed in, on, under or over any portion of a county highway or county property, or which may obstruct, hinder, or in any way affect maintenance or use of or travel on a county highway or county property. Encroachment also includes traveling on the right-of-way of any county highway by any vehicle or combination of vehicles or object of dimension, weight, or other characteristic prohibited by law.

“Excavation” means the filling, removal or moving of any earth, rock, pavement, concrete or other materials atop, on, or under any portion of right-of-way of any county highway.

“Obstruction” means any use, structure or object of any kind or character which is placed atop, on, under or over any portion of the right-of-way of any county highway.

“Permittee” means any person, firm, company, corporation, association, public agency or organization that proposes to do work or encroach on a right-of-way of a county highway and has been issued a valid encroachment permit by the department. Any and all obligations, responsibilities, conditions, and other requirements of the permittee as identified and described in this title shall be binding on the permittee, any authorized agent, and subsequent joiners of the encroachment.

“Right-of-way” means all of the area between the boundaries of a highway, road, street, alley or path as defined by the instruments creating, or conveying such highway, road, street, alley or path, and with respect to county highways created by use or by prescription, the county highway shall include all of the area used for highway purposes, including the road bed and surface from the highway centerline to the top of any cut and to the toe of any slope, or 10 feet from the edge of the traveled way, whichever is farther on both sides of the road, all including any shoulders, drainage ditches, fixtures, and road appurtenances. (Formerly 35.02)

It shall be unlawful for any person, firm, corporation, company, association, public agency or organization to do or cause to be done any of the following without first obtaining an encroachment permit from the department:

A. Excavate or fill on or under any portion of a county highway;

B. Place or maintain any obstruction on, in, atop, under, or over a county highway;

C. Install, construct, improve, remove or cut into any sidewalks, driveways, curbs, gutters, walls, culverts, road approaches or road surfacing;

D. Install, repair or remove any facilities or substructures in, on, over or under any county highway;

E. Establish, place, change, renew, revise or maintain any driveway, access road or encroachment across any portion of a county highway;

F. Place, maintain, or display in, on, or over any county highway any kind of advertising sign or device. Any such sign or device placed, maintained or displayed contrary to the provisions of this title is a public nuisance and the department may immediately remove it;

G. Cut or fill upon the natural ground surface upon land adjacent to a county highway, any part of which measures horizontally less than two times the depth of the cut or fill from the closest right-of-way boundary line of any county highway;

H. Plant, remove, injure or destroy any tree, shrub, plant or flower growing in, on or over a county highway;

I. Storage of abandoned or inoperable vehicles, travel trailers, private property, debris piles, fences, mail boxes, right-of-way or property monuments in, on or under any county highway;

J. Move over the surface of any county highway or over any bridge, viaduct or other structure maintained by the county any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the county highway;

K. Operate any motor vehicle on any county-owned land closed to use by motor vehicles pursuant to this title. Any areas closed to use by motor vehicles or otherwise closed or prohibiting any uses shall be designated by resolution of the Board and shall be adequately marked or posted in a manner determined by the department to notify the public of such regulations and/or prohibitions of use. (Formerly 35.03)

The provisions of this title shall not apply to the following:

A. Construction of federal or state highways which affect county highways from which an agreement with the county has been executed and improvement and/or construction plans contain approval of the director.

B. Work performed by the county through its department or work performed by a person or company for the county pursuant to a contract. (Formerly 35.04)

An application for encroachment permit shall be made in writing, upon forms provided by the department, and shall include the following information:

A. Name, address, phone number of the applicant, the record owner, the contractor, other person actually making the proposed encroachment, and any agents or representatives which will be in any responsible position relative to the proposed encroachment;

B. Name, address, phone number of all persons who are authorized to represent the record owner of property affected by the proposed encroachment accompanied by power of attorney or other acceptable document;

C. Signature of the applicant and the record owner, if different from the applicant, with date application is filed with the department;

D. Written description of the proposed encroachment including but not limited to location, purpose, extent, dimensions, time, duration, and nature of the proposed encroachment;

E. A detailed site plan, drawn to scale showing relation of proposed encroachment with county highways; showing adjacent property lines; showing the nature, extent and standards proposed for the encroachment; and other information such as engineering calculations, cross sections, profiles, site data, and natural conditions as may be required by the department. The site plan shall include a map or plat and a sketch or diagram in sufficient detail to adequately and easily locate, delineate, illustrate and identify the proposed use or encroachment;

F. Copies of any written orders or consent to any work performed under the encroachment permit, of the Public Utilities Commission, public utility district, water district, or any other local agency having jurisdiction with any laws, ordinances, regulations, decisions or other form of authoritative orders;

G. Application fee as determined by resolution of the Board. Any application for encroachment permit shall be deemed complete upon expiration of 30 days after receipt by the department of an application, unless the department, prior to expiration of this 30-day period, transmits to the applicant in writing a request for additional information. The application will be deemed complete and filed upon receipt and acceptance by the department of the application or additional information as requested by the department. Notwithstanding any other provision of this title, the department may issue to a public utility an annual blanket permit for routine maintenance required by the utility. (Formerly 35.05)

The department may issue a single encroachment permit or any number of encroachment permits which are a part of a single project when the applicant has provided to the department and the department has accepted as complete the following:

A. Fully executed application form and supporting documentation;

B. Fee as required by resolution of the Board;

C. Security as required; and

D. Any other requirements of this title.

The encroachment permit, issued by the department, may be issued for any lawful use, subject to conditions set forth in this title and required by law. The department shall not issue any encroachment permit unless and until it has received approval of the County Planning Department for zoning, building and environmental compliance and the County Sheriff when and where applicable. (Formerly 35.06)

The following minimum conditions and standards are required and shall be specified in any encroachment permit issued by the department and every encroachment permit issued by the department shall be subject but not limited to the following:

A. The encroachment permit shall be subject to all of the provisions and requirements of this title.

B. The encroachment permit may be revoked by the department at any time, without cause, after mailing a “Notice of Revocation” of the encroachment permit within five days after the effective revocation date. This shall not apply to encroachment permits issued to a public utility operating pursuant to a franchise granted by the county.

C. The encroachment permit and any work or use performed under the issued encroachment permit shall conform and comply with minimum construction standards adopted by resolution of the Board.

D. The permittee is responsible to call for any departmental inspections required under the issued encroachment permit.

E. The encroachment permit shall be null and void six months after the date of issuance unless the encroachment permit, including any security, has been extended with mutual written consent of the department and permittee.

F. The permittee shall identify the name, address, and telephone number of any person who may be in a position of responsibility and authority representing either the record landowner, applicant, and/or permittee in the performance under the terms of any issued encroachment permit and this title.

G. The permittee shall keep any encroachment permit issued under this title at the site of the work or use authorized by the encroachment permit or in the cab of a vehicle, when its movement on a county highway is involved. The issued encroachment permit shall be shown to any authorized representative of the department or law enforcement officer, on demand.

H. The issued encroachment permit shall not be transferable without prior, written consent of the director.

I. Any permit issued to any person, a public agency, or a private utility under the provisions of this title shall contain a provision that in the event of the future improvement of the highway necessitating the relocation or removal of such encroachment, the permittee shall relocate or remove same at his own expense. In the event of future improvement of a county highway for a proper governmental purpose which necessitates the relocation of an encroachment granted to a public utility, the permittee shall relocate same at permittee’s own expense to such different location in the highway as is specified in a written demand from the department. The department, in this situation, shall serve upon the permittee its written demand specifying the place and/or location or that the encroachment must be removed from the highway and specifying a reasonable time within which the work must be commenced by the person, public agency or public/private utility.

J. Any monument set for the purpose of locating or preserving the lines of any road, property, or subdivision, or a precise survey reference point, or a permanent survey benchmark within Sierra County shall not be removed, disturbed, or caused to be removed or disturbed without first obtaining permission, in writing, from the director. The director, in granting permission to disturb or remove any monument, reference point or benchmark, shall require that such points be temporarily tied out by a surveyor licensed in the state of California. After completion of all work under the issued encroachment permit, any disturbed or removed monument, reference point, or benchmark shall be accurately re-set by a surveyor licensed in the state of California. All work required under this section shall be at the expense of the permittee.

K. The applicant and permittee agrees to hold the county and each and every officer and employee thereof from any liability or responsibility for any accident, loss or damage to persons or property arising out of or connected in any way with any work done by the applicant or permittee granted hereunder.

L. No construction material shall be stored nor equipment parked within 10 feet from the edge of pavement or traveled way.

M. All brush, timber, scraps, material and such shall be entirely removed upon completion and the right-of-way shall be left in as presentable a condition as existed before any work commenced.

N. All work shall be planned and carried out so that there will be the least possible inconvenience to the traveling public.

O. Permittee shall immediately cease work in the vicinity of any archeological or historical resources that are revealed. The director shall be notified immediately and an evaluation by the director shall be made relative to the continuance of work.

P. All permits are revocable immediately on five days written notice and the encroachment must be removed or relocated as may be specified in any written order of the department revoking said permit. This shall not apply to encroachment permits issued to a public utility operating pursuant to a franchise granted by the county.

The department may impose any additional, reasonable conditions which may be necessary to assure compliance with this title or to protect the public interest. (Formerly 35.07)

The department shall require, as a condition prior to issuance of any encroachment permit, security in the form of cash, bond, money order, certified check or other form as deemed acceptable by the department. The security shall be provided in the amount determined to be sufficient by the director based upon the estimate of the director of the estimated cost necessary to reimburse the county for costs of repairing any damage to or restoring the county highway as a result of damage which may occur to the county highway by reason of such encroachment.

The security required in this section shall be payable to the county and shall be filed with the department prior to issuance of the encroachment permit by the department. The security shall be held in an “encroachment permit trust fund” by the County Auditor and County Treasurer. Any funds or other security deposited or held shall not be released and returned unless and until the following occurs:

A. The director provides, to the County Auditor, adequate evidence through a “notice of completion and acceptance” that the work performed under the issued encroachment permit has been completed under the terms and conditions of the issued encroachment permit and this title; or

B. The director authorizes release of the funds and deposit into the county road fund, for performance of work not performed by permittee within the time frame required under the issued encroachment permit; for work required to restore the county highway to its original condition; or for any work necessary to obtain compliance with this title. The County Auditor, upon receiving evidence from the director that the work under the issued encroachment permit is completed and accepted, shall release and return any security to the permittee on the expiration of 15 days.

The director may, at any time, require new or additional security, when adequate evidence exists, in the opinion of the director, that the amount of security originally posted by the permittee is deemed insufficient to cover costs or to adequately secure the repair or restoration of any county highway damaged as a result of the encroachment.

The director may waive the requirement for security when an encroachment permit is issued to any city, political subdivision or local agency or utility. Failure to comply with this title shall require immediate posting of security as required by this section.

Failure of the permittee to comply with this section shall be grounds for revocation of the encroachment permit. Any permittee refusing to pay any fees, costs, or charges due as required by this title shall cause the department to proceed against the security posted to collect for such fees, costs or charges. (Formerly 35.09)

The department may deny any application for encroachment permit and the reasons for denial shall be transmitted in written form to the applicant within 10 days after a determination for denial has been made. The department may revoke any issued encroachment permit, by written order of the director, effective immediately, a copy of which shall be mailed to the permittee and to the applicant at the respective addresses specified in the issued permit, upon any one or more of the following grounds:

A. Violation of any provision or requirement of this title;

B. Noncompliance with minimum county standards;

C. Failure to post additional security as may be required;

D. Misrepresentation of any material fact in the application;

E. Violation of any of the terms or conditions of the issued encroachment permit;

F. Failure to post security or withdrawal of the required security.

The encroachment permit, upon revocation, shall become null and void and no work may be performed unless said permit is reinstated by the department. (Formerly 35.10)

The applicant, permittee, or any person adversely affected by one or more of the following decisions of the director may appeal to the Board of Supervisors within 10 days after any of the following actions occur:

A. Denial of an encroachment permit;

B. Revocation of an encroachment permit;

C. Approval of an encroachment permit;

D. Imposition of terms or conditions on an encroachment permit;

E. Failure by the department to act on an application for encroachment permit within 30 days after the application is accepted as complete by the department.

The appellant shall file a “notice of appeal” with the Clerk of the Board of Supervisors and shall submit a copy to the director. The “notice of appeal” shall state one or more of the grounds for appeal as set forth in this section and shall specify in detail the argument of the appellant. (Formerly 35.11)

The department shall create written procedures for the administration and supervision of the provisions of this title and shall be responsible for maintenance of all files and records pertinent to encroachment permits. The department shall require inspections of all encroachment permits issued under authority of this title and such inspections shall occur during but not limited to the following intervals:

A. Before initiation of and/or prior to permit issuance;

B. During use and/or construction;

C. Upon termination of use and/or completion of construction.

No person shall prevent or obstruct any officer or employee of the performance of any required inspection authorized in this title. (Formerly 35.12)

Any and all uses or work authorized and performed under a current, valid, and issued encroachment permit shall be according to minimum standards of use and/or construction adopted by resolution of the Board. Where minimum construction standards have not been adopted by the Board, and unless otherwise noted, all work performed shall conform to the most current edition of Standard Specifications of the State of California issued by the Department of Transportation.

The following additional standards shall be as required by the department when issuing and supervising any encroachment permit:

A. Noise, Dust and Debris. Each permittee shall conduct and carry out work authorized in such a manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of adjoining property. The permittee shall take appropriate measures, as may be required, to reduce to the fullest extent practicable in the performance of the work, noise, dust and unsightly debris. During the hours of 7:00 p.m. to 7:00 a.m., the permittee shall not use any tool, appliance, or equipment producing noise of sufficient volume to disturb the sleep or repose of occupants of neighboring property, without the express written permission of the director.

B. Relocating Facilities. In the event of future improvement of a county highway which necessitates the relocation or removal of an encroachment, the permittee shall relocate or remove same at its own expense. In the event of future improvement of a county highway for a proper governmental purpose which necessitates the relocation of an encroachment granted to a public utility, the permittee shall relocate same at permittee’s expense to such different location in the highway as is specified in a written demand from the department. The director, in this case, shall serve on the permittee a written demand specifying the place or location for which the encroachment must be removed from the county highway and specifying a reasonable time within which the work or relocation shall be commenced.

C. Protective Measures. Each permittee shall, as required by the director, place and maintain barriers, warning devices, and signs necessary for safety and traffic control.

D. Traffic Routing. Each permittee shall take appropriate measures as required by the director to assure that during the performance work, traffic conditions shall be maintained at all times. The director may permit closing of county highways to all traffic for a period of time if deemed advisable or necessary and in this case, the director may require the permittee to give notification to specified interested persons before commencement of work.

E. Adjoining Property. The permittee shall at all times and at the permittee’s own expense preserve and protect from injury any adjoining property which may be affected as a result of the performance of work under an encroachment permit.

F. Cleanup. All county highways shall, as work progresses, be thoroughly cleaned of all rubbish, excess earth, rock, and other debris resulting from such work. All cleanup operations at the location of such work shall be accomplished at the expense of the permittee and shall be completed to the approval of the director. Upon failure of any permittee to clean up and remove all refuse and unused materials on any land resulting from work under an encroachment permit, the director may cause the cleanup to be performed and the cost thereof charged to the permittee and the permittee shall be liable for the cost thereof. (Formerly 35.13)

The department, when issuing an encroachment permit, shall specify a starting date in which work or use under the encroachment permit shall commence and shall specify a completion date in which all work under the encroachment permit shall be completed in compliance with all conditions of approval.

If a delay occurs in beginning, prosecuting, or completing work under an issued encroachment permit and such condition is due to negligence or lack of diligence of the owner and/or permittee, the department may cancel and revoke the encroachment permit and shall either restore the right-of-way to its original condition or shall perform all work proposed under the issued encroachment permit using funding made available through security posted by the permittee and/or owner.

Any issued encroachment permit shall become null and void if work is not commenced within 90 days from the date of issuance. The time limits of an issued encroachment permit may be extended by the director upon receipt of a written statement by the owner and/or permittee stating the reasons why an extension of time is being requested and the specific amount of time being requested. The director in extending the original time limits of an issued encroachment permit may require additional security or additional inspections to ensure compliance with this title. Any issued encroachment permit shall expire and become null and void 12 months after the date of issuances. Thereafter, the department shall either issue a new encroachment permit, restore the right-of-way to its original condition or complete the encroachment using security posted by the owner and/or permittee. (Formerly 35.15)

Any and all work performed under a valid, current and issued encroachment permit shall comply with the approved encroachment permit, including all conditions, exhibits, standard specifications and other related documents and no changes or alterations shall be made in the location, dimension, character, standard or other relevant component of the encroachment without prior, written authorization from the director. Any proposed revision shall be submitted to the department in written or sketch form by the owner and/or permittee. Any revision approved by the director shall become effective 24 hours after execution of written authorization by the director. (Formerly 35.16)

The owner or permittee, upon completion of all work or use authorized and required in any issued encroachment permit, and upon compliance with all conditions issued therewith, shall in writing notify the department that the work or use is complete and a final inspection is necessary to be performed by the department. No work or use shall be deemed complete in the absence of this written notice.

The department, upon receipt of the written notice from the owner or permittee, shall cause to be performed a final inspection of the work or use authorized in the issued encroachment permit. Upon inspection, the department shall issue a “notice of completion and acceptance” if such work or use is deemed to be complete, satisfactory, and in compliance with all encroachment permit conditions. If such work or use is unsatisfactory or the owner and/or permittee has not complied with the issued encroachment permit conditions, a notice shall be submitted to the owner and/or permittee listing specific areas of noncompliance. Upon issuance by the department of a “notice of completion and acceptance” the permit shall be deemed complete and the encroachment permit shall be in full force and effect. (Formerly 35.17)

The requirements of this title shall not prevent any person from performing emergency maintenance on any pipe, conduit or transmission facility lawfully on a county highway or from making an emergency encroachment or use which is deemed necessary to protect and preserve life or property when an urgent necessity arises from an emergency as defined by this title. Any person making any emergency use or encroachment or who is otherwise affecting the county highway shall apply for a written encroachment permit within 10 calendar days after any emergency work is initiated. Any person contemplating or initiating emergency work under this section shall first notify the department and the Sierra County Sheriff specifying the nature of the emergency, the extent of work contemplated and the location of such work. (Formerly 35.18)

This title shall not be construed as imposing upon the county or any official or employee any liability or responsibility for damages to any person injured by or in the performance of any work for which an encroachment permit is issued hereunder, nor shall the county or any employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized, the issuance of any encroachment permit or the approval of any work permitted hereunder. (Formerly 35.20)

This title shall be administered and enforced by the department. The department shall cause any encroachment or use authorized by encroachment permit to be administered and inspected at sufficient intervals to ensure compliance with the terms, conditions and requirements of any issued encroachment permit and this title. Any person who performs any of the acts for which an encroachment permit is required by this title without first obtaining such permit shall be assessed a permit application fee twice the amount specified in the resolution of the Board.

Any person who violates any provision of this title: any condition of any encroachment permit issued hereunder; fails, neglects, or refuses to comply with any requirements of the director, this title or any encroachment permit issued hereunder; or performs any of the acts for which an encroachment permit is required by this title without first obtaining such permit, shall be guilty of an infraction. Each day any violation of this title continues shall constitute a separate offense punishable as provided herein. The violation of any provisions of this title shall constitute a public nuisance subject to abatement in any manner authorized by law; including, but not limited to, summary abatement by the director, pursuant to the California Streets and Highways Code § 1483 and the Cal. Civ. Code § 3494; abatement by actions authorized in the Cal. Penal Code § 373(a) and the California Streets and Highways Code, Chapter 5.5, Division 2 (commencing with Cal. Sts. & High. Code §1450), and Chapter 6, Division 2 (commencing with Cal. Sts. & High. Code § 1500); and by suit for injunction.

The department and the County District Attorney or other appropriate law enforcement personnel shall immediately pursue enforcement, abatement, prosecution against any person violating any provision of this title. (Ord. 902, eff. 7/6/00. Formerly 35.21)