Truckee Municipal Code Ch. 13.01 Encroachments

For the purpose of this ordinance, the following words and phrases shall have the meanings respectively ascribed to them by this section.

(a) Applicant. Any person making written application to the Department of Public Works for an excavation or encroachment permit hereunder is an applicant.

(b) Town Council. Town Council of the Town of Truckee.

(c) Department. The Department of Public Works of the Town of Truckee and the authorized representatives of the Department of Public Works.

(d) Highway. The term "highway" includes all or any part of the entire width of right-of-way of a town-owned or maintained highway, street, road or alley and the space over it and the ground under it, whether or not such entire area is actually used for highway purposes. If the right-of-way is by prescription, a highway includes the area from the centerline to the top of cut, toe of fill, or ten feet from the edge of traveled way, whichever is farther on both sides of the road, except that it does not include the area behind a fence having existed for more than five (5) years.

(e) Encroachment. The term "encroachment" includes any tower, pole, pole line, pipe, pipeline, driveway, private road, fence, sign, building, tree, lighting or building a fence within the right-of-way, embankment, excavation or any structure or object of any kind or character not particularly mentioned in this section, which is placed in, under or over any portion of the highway, or which may cause water to back onto any portion of the highway, or which may obstruct maintenance of or travel on the highway. It includes traveling on the right-of-way by any vehicle or combination of vehicles or object of dimension, weight, or other characteristic prohibited by law, as specified in Chapter 13.03 and special events, such as parades or other occupation of the Town right-of-way as specified in Chapter 13.02.

(f) Excavation. Removal of material and any opening in the surface except an opening into a lawful structure below the surface, the top of which is flush with the adjoining surface and so constructed as to permit frequent openings without injury or damage to the road.

(g) Permittee. Means any person, firm, company, corporation, association, public agency or organization that proposes to do work or encroach on a right-of-way as defined in this section and has been issued a permit for encroachment by the Department. All obligations, responsibilities, and other requirements of the permittee as described in this division shall be binding on subsequent owners of the encroachment.

No person, firm, company, corporation, association, public agency nor organization shall do or cause to be done any of the following without first obtaining a permit therefore, and complying with all conditions thereof, and all provisions of this ordinance:

(a) Fill or excavate in a highway.

(b) Install, construct, cut into, improve, or remove any sidewalks, driveways, curbs, gutters, walls, culverts, road approaches, or road surfacing, or install, repair or remove any facilities or substructures in, on, over, or under any highway.

(c) Place, change or renew an encroachment.

(d) Place, or display in any Town highway, commercial advertising of any type. Any such sign or device placed or displayed contrary to the provisions of this section is a public nuisance and the Department of Public Works may immediately remove it. The provisions of this section shall not prohibit the posting of any notice required by law or by the order of any court of this State.

(e) Plant, remove, trim, injure or destroy any tree or shrub in a highway.

Any person may appeal any decision or requirement of the Director of Public Works by filing a written appeal as provided by Chapter 2.04 of Title 2 of this Code. No work shall be done by the appellant pending the final determination of the appeal.

Applications for permits for performance of any of the acts stated in Section 13.01.020 hereof shall be made in writing upon forms furnished by the Community Development Department and approved by the Director. The form shall be filed with the Department and shall set out the following in detail where applicable:

(a) Name and residence or business address and phone number of the applicant. Street address and adjoining assessor parcel number to encroachment.

(b) Name and business address for person to be hired by applicant to do the proposed work. If this information is not known at time of application, the permittee shall provide said information to the Department prior to start of work by the person hired to do the work.

(c) Location, dimensions, purpose, extent and nature of the proposed encroachment.

(d) Such other information as may be needed by the Department, such as engineering calculations, cross-sections, profiles, etc.

(e) The permittee shall keep himself adequately informed of all state and federal laws and local ordinances and regulations which affect the permit.

(f) The applicant shall also enclose with, attach to, or add to the application copies of the written order or consent to any work under the permit, required by law, of the Code of Good Utility Practice, sanitary districts, water districts, or any other public body having jurisdiction. A permit shall not be issued until the order or consent, if required, is first obtained and evidence of it filed with the Department. The permittee, at all times, shall comply with and shall cause all his agents and employees to comply with all such laws, ordinances, regulations, decisions, and court and similar authoritative orders; and shall sign a statement agreeing to protect and indemnify the Town and all of its officers, agents, and employees against any claims or liability proximately caused by the violations of any such law, ordinance, regulation, or order issued under police power and in accordance with law, whether by himself or his agents or employees.

(g) The applicant shall enclose with, attach or add to the application for a permit, a map, plat, sketch, diagram, or similar exhibit, when required by the Department, of a size and in the quantity that it may prescribe, on which shall be plainly shown all information necessary to locate, delineate, illustrate, or identify the proposed use or encroachment and the right and necessity of the applicant to cause an encroachment. If necessary, changes, corrections, and notes will be made on the map, plat, sketch, diagram, or similar exhibit and these items will become an integral part of the permit.

No application will be accepted nor permit issued for erecting, using, or maintaining a post, pole, column or structure for support for commercial advertising of any type, or make any marking other than temporary survey or construction markings within the highway. Any such encroachment is illegal.

The contractor shall execute a hold-harmless agreement with the City for all liabilities imposed by law for personal injury or property damage proximately caused by the work herein permitted or caused by the contractor's failure to perform the obligations under the permit. The contractor shall take out and maintain during the life of the permit such public liability and property damage insurance as shall protect the City, its elective and appointive boards, officers, agents and employees and the contractor from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from the contractor's or any subcontractor's operations under the permit whether such operations be by the contractor or by any subcontractor or by anyone directly employed by either the contractor of any subcontractor, and the amounts of such insurance shall be as follows:

Public liability insurance in an amount not less than $500,000 per person, $1,000,000 per occurrence, bodily injury and death; and $250,000 per occurrence, $500,000 aggregate for property damage.

No policies of insurance carried by the contractor shall be subject to cancellation except after notice to the City Attorney by register mail atleast thirty days prior to the date of cancellation.

Before granting a permit under the provisions of this ordinance, the Department may require the applicant to file with the Council security in the form of cash or a satisfactory bond payable to the Town in such amount as the Department deems sufficient to reimburse the Town for costs of restoring the right-of-way to its former condition.

The Department may require a new or additional bond or cash deposit at any time that evidence indicates the amount of the bond or cash deposit previously made is insufficient to cover the cost of restoring the right-of-way to its former condition. Any bond or cash deposit required by the Department under this division shall be payable to the Town and shall be filed with the Department. On satisfactory completion of all work authorized in the permit and fulfillment of all conditions of the permit, the Town Council will release the bond or cash deposit on the expiration of ninety (90) days.

The Public Works Director may waive the provisions of this section relating to cash deposit or surety bond for permits required under this ordinance upon satisfactory proof by certificate of insurance that permittee is adequately insured to assure reimbursement to the Town for repair of any damage caused to Town property.

In the event any applicant shall refuse to pay any fees, costs, or charges due under this ordinance, the Department may, at its discretion, proceed against the surety or bond posted by the applicant pursuant to this ordinance to collect such fees, costs, or charges. The Department may, in addition, refuse to issue any new permits to an applicant with unpaid fees, costs, or charges due on any job.

The written permits required by this division may be issued by the Department for any lawful use, subject to conditions set forth in this division and required by law.

The Department may issue a single permit for any number of encroachments which are part of a single project or single job. It may also issue annual blanket permits to utilities for routine minor work performed by owners or employees of the permittee. Either permit shall become effective and shall be exercised by notice given to the Department not less than 24 hours before work is to be commenced thereunder.

The Department may refuse to issue a permit to an applicant who is in default of any terms or conditions of any prior permit issued by the Department.

The schedule of fees will be those recommended by the Department and established and adopted by the Town Council from time to time by resolution. Before a permit is issued, the applicant shall deposit with the Community Development Department for payment to the Town, cash or check in a sufficient sum to cover the fee for issuance of the permit, charges for field investigation, and the fee for necessary inspection, all in accordance with the schedules established and adopted by the Town Council.

Encroachment permits issued pursuant to this ordinance are nontransferable.

The permittee shall keep any permit issued under this division at the site of work, or in the cab of a vehicle when its movement on a public highway is involved, and the permit must be shown to any authorized representative of the Department or law enforcement officer on demand.

A permit issued for continuing use or maintenance of an encroachment may be kept at the place of business of the permittee or otherwise safeguarded during the term of validity but shall be made available to an authorized representative of the Department or law enforcement officer within a reasonable time after demand.

All encroachment work done under a permit issued under this ordinance shall conform to specifications established by the Department or in the absence of established specifications to recognized standards of construction and approved practices in connection with such work. All encroachment repair work shall be done subject to approval of the Department.

Unless otherwise noted on the permit, all encroachment work performed on any public highway or right-of-way under the jurisdiction of the Town shall conform to the construction specifications contained in the current edition of the Standard Specifications of CalTrans, as may be amended by special provisions adopted by the Department.

No person shall prevent or obstruct any officer or employee of the Department in making any inspection pursuant to this ordinance, nor in taking any sample or making any test.

No changes shall be made in the location, dimensions, character, or duration of the encroachment or use granted by the permit except on written authorization by the Department.

The Department may revise any permit as it deems necessary or according to a request by the permittee for a revision acceptable to the Department by written notice. Such revision becomes effective forty-eight hours after deposit in the United States mail or upon personal service.

The permittee shall complete the work or use authorized by a permit with the time specified in the permit. If, at any time, the Department finds that delay in beginning, prosecuting, or completing the work or use is due to lack of diligence by the permittee, it may cancel the permit and restore the right-of-way to its former condition. The permittee shall reimburse the Town for all expenses incurred by the Department in restoring the right-of-way, plus fifteen percent (15%) as administrative costs. If the work or use is not begun within the time stated in the permit, then the permit shall become void, unless before its expiration the time for beginning has been extended in writing by the Department.

Upon completion of any work or act for which a permit has been granted, the permittee shall notify the Department in writing on a form prescribed by the Department. No work shall be deemed completed without such notice.

The Department may revoke any permit by notifying the permittee in writing personally delivered or deposited in the United States mail addressed to the permittee at the address shown on the application form. Effective immediately upon personal delivery or forty-eight hours after deposit in the mail, the permit is void and no work may be performed under the permit unless it is reinstated by the Department.

This Chapter shall not prevent any person from performing emergency maintenance on any pipe or conduit lawfully on a highway or from making an emergency use or encroachment necessary to preserve life or property when an urgent necessity arises, except that the person making an emergency use or encroachment of a right-of-way shall apply for a written permit within ten (10) calendar days, beginning with the first business day the Town offices open. Any person requiring an emergency use or encroachment shall first notify the Department. During the hours the offices are closed, notice shall be given the Police Department.

The permittee shall take appropriate measures to assure that, during the performance of work, traffic conditions shall be maintained at all times as near normal as practicable so as to minimize inconvenience to the occupants of the abutting property and to the general public. The Department may permit the closing of a highway for specific periods of time if it is necessary, and the Department may require the permittee to give notification to any interested persons before such closing. The permittee shall provide safe access for each road and to each parcel of land. He shall provide watchmen, signs, barricades, railings, lights, as specified by the State Department of Transportation "Manual of Warning Signs, Lights and Devices for Use in Performance of Work on Highways", or any other safety devices, necessary for the safe passage of any person or vehicle using the highway. Any omission on the part of the Department to specify in the permit protective measures or devices shall be provided, erected, or maintained by the permittee or the fact that the Department may not specify sufficient protective measures or devices, shall not excuse the appropriate regulations for adequately protecting the safety of the traveling public. If, at any time, the Department finds that suitable safeguards are not being provided, the Town may provide, erect, maintain, or relocate, the safeguards deemed necessary or may cancel the permit and restore the right-of-way to its former condition, all at the expense of the permittee.

When the location or position of a pole or other obstruction makes accentuation of its visibility to vehicular traffic necessary, the Department may require that the pole or other obstruction to be painted or equipped with reflectors or other aids to visibility prescribed or authorized by the Code of Good Utility Practice or the Department of Transportation of the State of California, at the expense of the permittee.

No material shall be stored within five (5) feet of a public highway during the summer season or within the shoulder or snow storage easement during the snow season as specified in Section 10.17.010 of this Code. Excess earth materials from trenching or other operations shall be removed from the pavement, traveled way, or shoulder as the trench is backfilled or other work carried forward unless otherwise approved by the Department.

Each permittee shall conduct and carry out work permitted hereunder in such manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. The permittee shall take appropriate measures to reduce to the fullest extent practicable in the performance of the work, noise, dust and unsightly debris.

The permittee shall at all times and at his own expense preserve and protect from injury any adjoining property by providing proper foundations, shoring, and taking other measures suitable for the purpose. The permittee must obtain permission from the owner of private property to enter upon or do work on such property. The permittee shall be responsible for all damage to any roads or other public or private property, real and personal, resulting from the performance of his work.

Any monument set for the purpose of locating or preserving the lines of any road or property subdivision, or a precise survey reference point, or a permanent survey bench mark within the Town shall not be removed or disturbed or caused to be removed or disturbed without first obtaining permission in writing from the Department to do so. Before monuments, reference points and bench marks are disturbed, or removed, they shall be tied out by a licensed surveyor or Registered Civil Engineer or under the directions of same. After completion of the work, the monuments, reference points and bench marks shall be accurately reset at the expense of permittee.

Clearances and types in the construction of poles and transmission line carriers shall accord with rules, regulations, and orders of the Code of Good Utility Practice and other public agencies having jurisdiction.

No guy wires shall be attached to trees without specific authorization in the permit, and in no event shall guy wires be attached to girdle the tree or interfere with its growth. Guy wires shall not be below the minimum elevation above the ground prescribed in the rules, orders, and regulations of the Code of Good Utility Practices.

The permittee shall remove and keep clear all vegetation on the right-of-way within a radius of at least five (5) feet of poles when requested by the Department.

When a pole, guy, stub, or similar timber is removed and not replaced, the entire length shall be removed from the ground and the hole backfilled and compacted.

Utility, service, and other small diameter pipes or rigid conduits shall be jacked, bored, or driven, or otherwise forced underneath a paved surface. The paved surface of a road shall not be cut, trenched, or otherwise disturbed unless specifically authorized in the permit. No tunneling will be permitted except as specifically set forth in the permit.

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 road right-of-way as to endanger the life or safety of the traveling public. A permit is not required for the placing of mail boxes. The Town is not liable in the event of damage to any box placed in the street right-of-way.

Any permit issued under the provisions of this ordinance shall provide that the permittee will pay the entire expense of replacing the highway in as good condition as before, and may provide such other conditions as to location and the manner in which the work is to be done as the Department finds necessary for the protection of the highway. The Department may perform such work, at its discretion, and charge the permittee for all costs incurred. After completion of all work, the permittee shall exercise reasonable care in inspecting and maintaining the area affected by the encroachment.

On notice from the Department, the permittee shall immediately repair any injury, damage, or nuisance in any portion of the right-of-way resulting from the work done under the permit. If the permittee fails to act promptly or if the exigencies of the injury or damage require repairs or replacement to be made before the permittee can be notified or can respond to notice, the Town at its option may make the necessary repairs or replacements or perform the necessary work and the permittee shall be charged the actual costs of labor and materials, plus fifteen percent (15%) as administrative costs. By acceptance of the permit, the permittee agrees to comply with this section.

If the work, use, or encroachment authorized in a permit interferes with the established drainage, the permittee shall provide for proper drainage as approved by the Department.

As the excavation work progresses, all roads shall be thoroughly cleaned of all rubbish, excess earth, rock and other debris resulting from such work. All clean-up operations at the location of such excavation shall be accomplished at the expense of the permittee and shall be completed to the satisfaction of the Department. From time to time, as may be ordered by the Department and, in any event, immediately after completion of work, the permittee shall at his own expense, clean up and remove all refuse and unused materials of any kind resulting from such work, and upon failure to do so within twenty-four (24) hours after having been notified to do so by the Department, the work may be done by the Department and the cost thereof charged to the permittee.

Any permit issued to a public utility or other public body under the provisions of this ordinance 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 will relocate or remove same at his own expense. In said event, the Department shall serve on the permittee his written demand specifying the place or location or that the encroachment must be removed from the highway and specifying a reasonable time within which the work of relocation must be commenced. Permittee shall commence such relocation or removal within the time specified in said demand and thereafter diligently prosecute the same to completion.

Applications for permits to plant trees in the right-of-way shall be made on a form prescribed by the Department. The form shall include, in addition to the other requirements, an agreement by the applicant to maintain the trees in a neat, healthy, and safe condition to the satisfaction of the Department, and an agreement to remove the trees as directed by the Department and to pay the cost of removal on the permittee's failure promptly to remove the trees on direction of the Department. The application shall show the exact location and kind of trees to be planted, and no change shall be made either in the location or kind of trees without the written approval of the Department.

All trees placed in the right-of-way shall be maintained by the permittee or his successor in interest or by some other interested party in a neat, healthy and safe condition to the satisfaction of the Department and at no expense to the Town. If the encroachment is not located or maintained as specified in this section, the Department may direct the permittee to remove the encroachment and restore the right-of-way to its former condition at the expense of the permittee; if the permittee fails promptly to remove the encroachment as directed, the Department shall have the right to remove it and collect the cost of removal from the permittee, together with all of the Town's costs and expenses in enforcing collection. The Department shall refuse to issue a permit authorizing the planting of trees in the right-of-way when the tree and location as described in the application or the nature of the growth above or below ground of the kind of tree proposed will impede or inconvenience public travel, unduly disturb the right-of-way, interfere with the construction or maintenance of necessary facilities, or interfere with the existing pipelines, utility installations, or other facilities lawfully placed within the right-of-way.

Trimming of trees will be permitted only when and in the manner authorized by a permit issued under this ordinance so that the shapeliness of the tree may be preserved.

An application for removal of a tree will be approved and permit issued only when a necessity for removal exists. When a tree is removed under authority of a permit, the entire stump shall be taken out for a distance of at least two feet (2') below the ground surface unless otherwise specified in the permit, and the hole shall be removed from the site and the right-of-way restored to its former condition.

No hedge, shrub, or other planting whatever, or fence or similar structure shall be maintained across any existing walkway in a sidewalk area or shoulder. The intent of this restriction is to keep a walkway free for pedestrian or other lawful public travel without interference by or with vehicular travel. No encroachment will be permitted or maintained which impedes, obstructs, or denies pedestrian or other lawful travel within the limits of the right-of-way of a public highway or impairs adequate sight distance for safe pedestrian or vehicular traffic.

This ordinance shall not be construed as imposing upon the Town or any official or employee any liability or responsibility for damages to any person injured by the performance of any work for which the permit is issued hereunder, nor shall the Town or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder, the issuance of any work permitted hereunder.

(a) Violation of the provisions of this Article shall be an infraction and upon correction thereof, there shall be a mandatory fine imposed as follows:

1. For a first violation, a fine of one hundred dollars ($100).

2. For a second violation of the same ordinance (section) within a twelve month period, a fine of two hundred dollars ($200).

3. For a third or subsequent violation of the same ordinance (section) within a twelve month period, a fine of five hundred dollars ($500).

(b) The Community Development Department Code Enforcement Officer(s) or their designees shall be responsible for the enforcement of this article.