Ventura Municipal Code Ch. 18.100 Encroachments and Excavations in Public Rights-of-Way and City Utility…

3 Editor’s note(s): Ord. No. 2002-07, Section 1, adopted May 20, 2002, amended Chapter 18.100 in its entirety, in effect repealing and reenacting said chapter to read as herein set out. The former Chapter 18.100, Sections 18.100.010 through 18.100.050, pertained to street excavations and derived from Code 1971, Sections 8311 through 8315.

This chapter is adopted pursuant to the municipal affairs provision of the City Charter for the purpose of regulating encroachments and excavations on, over, or under public rights-of-way or city utility easements. (Ord. No. 2002-07, § 1, 5-20-02)

Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this chapter:

“City utility easement” means any easement that is owned and/or used by the city for city water facilities, city sewer facilities or city storm drain facilities.

“Encroachment” means any construction work performed within a public right-of-way or city utility easement; any work other than construction work performed within a public right-of-way or city utility easement that obstructs or interferes with the use of the public right-of-way or city utility easement; and any structure or object that is placed or installed within a public right-of-way or within a city utility easement in a manner that obstructs or otherwise interferes with the use of the public right-of-way or city utility easement.

“Excavation” means removal of any macadam, concrete or other surface material covering a public right-of-way or city utility easement, and/or the removal of any earth material in or under the public right-of-way or city utility easement.

“Public right-of-way” means any city street, sidewalk, pedestrian path, bike path or any other “public way,” as defined in the California Streets and Highways Code. (Ord. No. 2002-07, § 1, 5-20-02)

This chapter shall be administered by the director of the city department designated by the city manager to administer the chapter. The director of that department shall, in turn, delegate to an officer or employee within the department the authority and responsibility to issue the permits, make the determinations, and take all of the enforcement actions provided for in this chapter, subject to the overall direction and supervision of the director. The person delegated the authority and responsibility to perform these duties is referred to in this chapter as “the administrator.” (Ord. No. 2002-07, § 1, 5-20-02)

A. Right of Administrative Review. Any person aggrieved by a determination made or action taken by the administrator pursuant to the provisions of this chapter may apply for administrative review of such determination or action by the director of the department designated to administer the provisions of this chapter.

B. Application for Administrative Review. Applications for administrative review of a determination made or action taken by the administrator pursuant to this chapter shall be in writing and shall be filed with the director no later than 10 days following the date such determination or action was made or taken, or, where written notice of such determination or action is required to be served, the date such notice is deemed served. If an application for administrative review is untimely, the director may, nevertheless, extend the time for filing the application for good cause shown. In addition to setting forth the request for administrative review, the application shall contain a brief statement of the reasons why the applicant believes that the administrator’s determination or action does not comply with the provision of this chapter, and shall set forth the relief requested by the applicant from the determination or action.

C. Decision on Application for Administrative Review. Upon the filing of an application for administrative review of a determination made or action taken by the administrator pursuant to the provisions of this chapter, the director shall consider the application and render a decision either affirming the determination or action, or reversing or modifying the determination or action. Prior to rendering a decision, the director may, at the director’s discretion, convene an informal hearing for the purpose of considering all evidence and other matters bearing on the decision, provided notice of the date, time and place of such hearing is served on the person applying for administrative review within a reasonable time prior to the hearing. After rendering a decision, the director shall promptly inform the administrator of the decision and cause notice of the decision to be served on the person who applied for the administrative review. The decision of the director shall be final and not subject to any further administrative review or appeals.

D. Stay of Determination Made or Action Taken by the Administrator Pending Administrative Review. Any determination made or action taken by the administrator pursuant to the provisions of this chapter, save and except for an order to stop work issued by the administrator, or the commencement or prosecution of work by the administrator to remove or remedy a condition in a public right-of-way or city utility easement that threatens the safety of life or property, shall be stayed pending a decision of the director on an application for administrative review of such determination or action. (Ord. No. 2002-07, § 1, 5-20-02)

Any notice required to be served by the administrator on a person in accordance with the provisions of this chapter shall be deemed served when sent by first class mail addressed to such person at the person’s last known address. When a notice is served on a person applying for or issued a permit in the manner provided by this chapter, the address of that person shall be the address set forth on the permit application, unless the person has provided the administrator with written notice of a change of address. (Ord. No. 2002-07, § 1, 5-20-02)

Except as provided in this chapter, it is unlawful for any person to encroach upon a public right-of-way or city utility easement, or to make an excavation in a public right-of-way or city utility easement, unless and until a permit authorizing such encroachment or excavation has been issued in the manner provided by this chapter. (Ord. No. 2002-07, § 1, 5-20-02)

An encroachment permit is not required for the following encroachments or excavations on or in a public right-of-way or city utility easement:

A. An encroachment or excavation made by a city officer or employee acting within the course or scope of their duties or employment;

B. An encroachment or excavation for work required by a city public works contract;

C. An encroachment on a public sidewalk for a news rack when authorized by a news rack permit issued in the manner provided by this title;

D. An encroachment for a public assembly, public meeting or other activity within a public right-of-way when authorized by a public event permit issued in the manner provided for by this title;

E. An encroachment on a public sidewalk for an outdoor dining use made by the owner or operator of an adjoining dining establishment, when authorized by an outdoor dining permit issued in the manner provided by Title 24;

F. An encroachment for landscaping, a decorative wall or a fence within the unimproved portion of a public right-of-way or city utility easement that is constructed or installed by the owner of adjoining residential property, when authorized by a director’s permit issued in the manner provided by Title 24;

G. An encroachment for a sign or awning that is affixed to a commercial building adjoining a public right-of-way and that projects over the right-of-way, when the sign or awning conforms to the development standards in any applicable specific plan, conforms to and has been approved in the manner required by the sign regulations adopted in Title 24, and has been constructed in a manner authorized by a permit issued pursuant to the building and construction regulations adopted in Title 12;

H. An encroachment on a public sidewalk within the downtown specific plan area for a decorative plant container, when the plant container is authorized by the specific plan and conforms to any applicable standards or other requirements set forth in the specific plan;

I. An encroachment made pursuant to a license, other than city franchise, that has been approved by the city council and grants to the licensee a revocable permission to occupy or use a particular portion of a public right-of-way or city utility easement. (Ord. No. 2002-07, § 1, 5-20-02)

Applications for a permit required by this chapter shall be filed with the administrator, shall be in a form and contain the information prescribed by the administrator, and shall be accompanied by a permit fee in an amount established by resolution of the city council. (Ord. No. 2002-07, § 1, 5-20-02)

Where an application is filed for a permit required by this chapter which would authorize construction or excavation work within a public right-of-way or city utility easement, the applicant shall establish to the administrator’s satisfaction that:

A. The applicant possesses a valid contractor’s license issued pursuant to Chapter 9, Division 3 of the California Business and Professions Code (commencing with Section 7000) to perform the kind of work within the public right-of-way or city utility easement to be authorized by the permit; or

B. The applicant owns the property adjoining that portion of the public right-of-way or city utility easement in which the work to be authorized by the permit will be performed, that such work will consist entirely of repairs to sidewalks, curbs, gutters or a driveway and/or the installation of landscaping within the parkway strips adjoining such public right-of-way, and that the work will be performed either entirely by the applicant or by the applicant in conjunction with unpaid assistants. (Ord. No. 2002-07, § 1, 5-20-02)

Where an application is filed for a permit required by this chapter that would authorize construction or excavation work within a public right-of-way or city utility easement, the application shall also be accompanied by plans and specifications that describe the location, nature, and extent of the work to be performed within the public right-of-way or city utility easement, and that establish to the administrator’s satisfaction that the work will conform to the city’s design criteria and improvement standards and/or all other applicable laws or regulations. (Ord. No. 2002-07, § 1, 5-20-02)

Where the administrator determines that an application for a permit required by this chapter is complete and that there are no grounds for denying a permit, the administrator shall approve the application and issue the permit for the term subject to all of the general and special conditions provided for by this chapter at such time as the applicant has provided proof of the insurance, provided the security and otherwise complied with all other general and special conditions required as conditions precedent to the issuance of the permit. (Ord. No. 2002-07, § 1, 5-20-02)

A. Grounds for Denial. The administrator shall deny an application for a permit required by this chapter if the administrator determines that:

1. The encroachment or excavation proposed by the application is for the construction or installation of improvements or facilities within a public right-of-way or city utility easement that are not an authorized use of a public right-of-way or city utility easement;

2. The encroachment or excavation, if implemented in the proposed manner, would unreasonably interfere with use of public or private property adjacent to or contiguous with the public right-of-way or city utility easement in which an encroachment or excavation is planned; or

3. The encroachment or excavation, if implemented in the proposed manner, would threaten the safety of life or property.

B. Notice of Denial. Where the administrator determines to deny an application for a permit required by this chapter, the administrator shall promptly cause a notice of such determination to be served on the permit applicant. Such notice shall state the reasons for the determination, and shall set forth the applicant’s right to apply for administrative review of the determination in the manner provided by this chapter. (Ord. No. 2002-07, § 1, 5-20-02)

Each permit issued pursuant to the provisions of this chapter shall be valid only for a period of time reasonably necessary to fulfill the purpose of the encroachment or perform the excavation work authorized by the permit, as determined by the administrator and set forth in the permit as the permit term. On or before the end of the permit term, the permittee shall remove the encroachment and/or complete the excavation work authorized by the permit, and restore the public right-of-way or city utility easement to the condition it was in prior to the encroachment or excavation, or such other condition prescribed by the permit, unless the term of the permit has been extended by the administrator for good cause shown. Prior to the end of the permit term, the administrator may revoke the permit for the reasons and in the manner provided for by this chapter. (Ord. No. 2002-07, § 1, 5-20-02)

A. Insurance Requirements. Except as otherwise provided in this section, no permit shall be issued pursuant to this chapter unless and until the permit applicant obtains a comprehensive general liability insurance policy from an insurance company that is licensed to do business in the state of California and has an A.M. Best rating of at least “B,” and that provides insurance coverage for all liabilities arising out of or in any way related to the encroachment and/or excavation work authorized by such permit.

B. Amount of Insurance. The insurance required by this chapter shall be in the amount of at least $1,000,000, combined single limit, except that where the city’s risk manager determines that work authorized by a permit issued pursuant to this chapter involves unusual risks that expose the city to liabilities in excess of $1,000,000, then such insurance shall be in an amount that the city’s risk manager determines is necessary to fully cover the city’s exposure to all such risks.

C. Form of Insurance. The insurance required by this chapter shall include an endorsement naming the city, the city’s officers, employees and agents as additional insureds under the coverage afforded, shall be primary with respect to any other insurance available to the city, shall include a severability of interest (cross-liability) clause, shall require the insurer to provide the city at least 30 days’ prior notice of cancellation, and shall otherwise be in a form approved by the city’s risk manager.

D. Acceptance of Homeowners’ Insurance in Lieu of Comprehensive Liability Insurance. Where a permit is issued pursuant to the provisions of this chapter that authorizes an encroachment or excavation in a public right-of-way or city utility easement that is to be undertaken by a permit applicant who owns and resides on the property adjoining the portion of the public right-of-way or city utility easement in which the encroachment is to be made or the excavation work is to be performed, the permit applicant may comply with the insurance requirements of this chapter by filing with the administrator a copy of the applicant’s homeowners’ insurance policy with liability limits of at least $300,000, in lieu of the general liability insurance otherwise required by this section.

E. Proof of Insurance. Proof of insurance required by this chapter shall be in a form approved by the city’s risk manager and shall be filed with the administrator prior to the issuance of a permit pursuant to this chapter. (Ord. No. 2002-07, § 1, 5-20-02)

As a further condition on the issuance of a permit pursuant to the provisions of this chapter, the permittee shall undertake and carry out the encroachment or excavation authorized by such permit in accordance with the provisions of the California Manual of Traffic Controls for Construction and Maintenance Work Zones as published by the California Department of Transportation and/or any additions or modifications thereto now or hereafter adopted by the city. (Ord. No. 2002-07, § 1, 5-20-02)

A. Security Requirements. Except as otherwise provided in this section, no permit shall be issued pursuant to the provisions of this chapter that authorizes construction or excavation work within a public right-of-way or city utility easement until the permittee obtains and provides to the city a surety bond or other security guaranteeing the permittee’s performance of all duties and obligations under such permit, including, in particular, the duty and obligation to restore the construction or work site to the same condition as it was in prior to commencement of the construction or excavation work, or such modified condition as approved by the administrator.

B. Amount of Security. The surety bond or other security obtained and provided by a permittee at the time of the issuance of a permit authorizing construction or excavation work within a public right-of-way or city utility easement shall be in the amount of at least $5,000, except where the administrator determines that the work authorized by the permit is extensive and would expose the city to costs substantially exceeding $5,000 to remedy any breach of the permit requirements. Under such circumstances, the surety bond or other security shall be in an amount that the administrator determines is necessary to fully cover the city’s exposure to all such costs.

C. Form of Security. The surety bond or other security obtained and provided by a permittee at the time of issuance of a permit authorizing construction or excavation work within a public right-of-way or city utility easement shall be conditioned on the permittee’s compliance with all requirements of this chapter, including all orders of the administrator pertaining thereto, and shall otherwise be in a form approved by the city attorney. In lieu of a surety bond, a permittee may obtain and provide to the city a cash deposit, certificate of deposit naming the city as the payee thereof, or such other kind of security acceptable to the administrator, provided such alternate security is accompanied by an agreement stating that the security is being pledged to guarantee performance of the permittee’s duties and obligations under the permit issued to permittee pursuant to this chapter, which agreement shall also be in a form approved by the city attorney.

D. Exceptions to Security Requirements. A surety bond or other security shall not be required where a permit has been issued pursuant to this chapter that:

1. Authorizes construction or excavation work within a public right-of-way or city utility easement that has an estimated cost or value less than $5,000, as determined by the administrator; or

2. Authorizes construction or excavation work within a public right-of-way that is performed by a public utility or cable television company pursuant to a state or city franchise. (Ord. No. 2002-07, § 1, 5-20-02)

A. Limitation on Street Excavations. Except as otherwise provided in this section, no permit shall be issued pursuant to the provisions of this chapter that authorizes an excavation in a public street that was resurfaced with an emulsified asphalt “slurry” or asphalt “cape seal” within the previous two years, or with asphalt concrete within the previous five years.

B. Underground Boring and Other Alternatives. A permit may be issued authorizing installation of underground utilities and other underground facilities within a recently resurfaced public street, if such work can be accomplished by boring under the street section or by the use of other trenchless technologies. However, before a permit will be issued authorizing underground boring, other methods for accomplishing the purpose of such work including, without limitation, relocating utility facilities to sidewalks, parkways or areas within the public right-of-way other than the street have been considered and determined by the administrator not to be feasible. Any additional costs for relocating utility facilities outside of the public street or for boring under the public street will be borne by the permittee.

C. Excavation Where Trenchless Technologies or Other Alternatives Are Not Feasible. A permit may be issued authorizing an excavation in a recently resurfaced public street for underground utilities or other underground facilities only in the most unusual circumstances where the administrator determines that relocation or underground boring is not feasible. Under such circumstances, the permittee shall comply with the city’s construction standards for excavating in recently resurfaced streets, pay all costs associated with such excavation, and provide such additional security to ensure the integrity of the surfaced street as may be reasonably required by the administrator. (Ord. No. 2002-07, § 1, 5-20-02)

As a further condition on the issuance of a permit pursuant to this chapter that authorizes construction or excavation work within a public right-of-way or city utility easement, the permittee shall design, undertake and complete such work in the following manner:

A. All public improvements constructed or installed within a public right-of-way pursuant to such permit shall be designed, constructed and installed in accordance with the city’s design criteria and improvement standards.

B. Upon commencing of the construction or excavation work authorized by the permit, the work shall be prosecuted with due diligence in a manner that does not unnecessarily obstruct or interfere with a public street, public utilities or other facilities located within a public right-of-way or city utility easement. This provision will be strictly construed.

C. At the time of making an excavation in a public right-of-way or city utility easement, and at all times thereafter until the excavation has been filled and the surface restored to its original condition or such modified condition as required by the permit, warning lights shall be placed and maintained at each end of the excavation, and at distances of not more than 50 feet along the line thereof, from sunset to sunrise of the following day.

D. All gas or water service pipes or main pipes, all private sewer or storm laterals and all other conduits of any nature whatsoever that are placed within a public right-of-way or city utility easement shall be buried to a depth of at least two feet below the surface of the public right-of-way or city utility easement.

E. Upon completion of construction or excavation work authorized by such permit, the public right-of-way or city utility easement in which such work was performed shall be restored to the same condition as it was prior to the commencement of such work, or to such modified condition as expressly approved by the administrator. All surplus soils or waste materials removed from the public right-of-way or city utility easement shall be deposited or disposed of in a manner that complies with applicable federal, state, and city laws and regulations.

F. At the conclusion of construction or excavation work authorized by such permit, the permittee shall file with the administrator such “as-built” plans and specifications as may be required by the administrator depicting any new improvements or facilities or any modifications to existing improvements or facilities that were constructed or installed in the public right-of-way or city utility easement pursuant to such permit. In addition, where an excavation has been made in the public right-of-way or city utility easement, a compaction report on all backfilled portions of the excavation shall be filed with the administrator, when required by the administrator. (Ord. No. 2002-07, § 1, 5-20-02)

When acting on a permit required by this chapter, the administrator may condition issuance of the permit on compliance with any special requirements that the administrator determines are necessary to ensure that the proposed encroachment or excavation will be accomplished in a manner that protects the safety of persons or property and does not unreasonably interfere with the use by the city or general public of any public right-of-way or city utility easement and/or any public or private property adjoining or in the neighborhood of the public right-of-way or city utility easement in which the encroachment or excavation is to be made. (Ord. No. 2002-07, § 1, 5-20-02)

A. Determination of Administrator to Order Work to Be Stopped. Whenever the administrator determines that an encroachment or excavation made within a public right-of-way or city utility easement pursuant to a permit issued in the manner provided by this chapter has been undertaken or is being carried out in a manner that threatens public safety, unreasonably interferes with the use of such public right-of-way or city utility easement or any property adjoining or in the neighborhood thereof, or damages or threatens to damage other facilities located within the public right-of-way or city utility easement in a manner not authorized by the permit, the administrator may order the work stopped by service and posting of the notice required by this section.

B. Service of Notice of Order to Stop Work. Upon determining to order the stoppage of work undertaken or being carried out pursuant to a permit issued in the manner provided by this chapter, the administrator shall cause a written notice of the order to be served on the permittee and on any person known to the administrator to be engaged in such work if such person is someone other than the permittee. In addition to setting forth the order of the administrator to stop work, such notice shall contain a brief description of the reasons why such work is being ordered stopped and the action, if any, that may be taken in order that the work may be resumed, shall contain a statement of the right of the permittee to apply for administrative review of the order in the manner provided by this chapter, and shall advise the person upon whom the notice is served that unless authorized by the administrator, any further work performed pursuant to such permit may subject such person to the criminal or civil penalties provided for by this chapter.

C. Posting Order to Stop Work. Upon determining to order the stoppage of work undertaken or being carried out pursuant to a permit issued in the manner provided by this chapter, the administrator shall cause written notice of such order to be posted in a conspicuous place within the public right-of-way or city utility easement in which such work is being performed whenever the administrator, at the administrator’s sole discretion, determines that the posting of such notice is practicable. In addition to setting forth the order of the administrator to stop work, such notice will state that it is a misdemeanor for any person to perform any further work without authorization of the administrator or to remove or deface the posted notice of such order.

D. Effect of an Order to Stop Work. No person served with a notice of the administrator to stop work undertaken or carried out pursuant to a permit issued in the manner provided by this chapter will cause or permit any such work to be performed after service of such notice. (Ord. No. 2002-07, § 1, 5-20-02)

A. Determination by the Administrator to Revoke a Permit. Whenever the administrator determines that an encroachment or excavation within a public right-of-way or city utility easement made pursuant to a permit issued in the manner provided by this chapter has been undertaken or is being carried out in a manner that violates the terms and conditions of the permit, or that the permit was issued based on an application or plans and specifications that contained a material misrepresentation of fact, the administrator may revoke the permit, by service of the notice required by this section.

B. Service of Notice of Order Revoking a Permit. Upon determining to order the revocation of a permit issued in the manner provided by this chapter, the administrator shall cause written notice of such order to be served on the permittee. In addition to setting forth the order of the of the administrator revoking the permit, such notice shall contain a brief description of the reasons why the permit is being revoked and shall contain a statement that the permittee has the right to apply for administrative review of the order in the manner provided by this chapter.

C. Effect of Order Revoking a Permit. A permittee served with a notice of the order of the administrator revoking a permit issued pursuant to this chapter shall promptly terminate the encroachment or excavation authorized by the permit, and restore the public right-of-way or city utility easement in which such encroachment or excavation was undertaken or carried out to the same condition as it was in prior to commencement of the encroachment or excavation, or such modified condition as may be approved by the administrator. (Ord. No. 2002-07, § 1, 5-20-02)

A. Determination of the Administrator to Undertake Removal and Restoration Work. Where the administrator determines that an encroachment or excavation was made in a public right-of-way or city utility easement without a permit required by this chapter, in violation or contrary to the terms and conditions of a permit or order issued pursuant to this chapter, or in any manner that endangers the safety of persons or property, the administrator may remove such encroachment, refill such excavation, and/or otherwise restore such public right-of-way or city utility easement to the same or substantially the same condition as it was in prior to the commencement of such encroachment or excavation, all for the account of and at the cost of the permittee or other person responsible for the encroachment or excavation, after serving the notice required by this section.

B. Notice of Intent to Undertake Removal and/or Restoration. Upon determining to remove an encroachment, refill an excavation and/or perform other restoration work in a public right-of-way or city utility easement, the administrator shall cause written notice of such determination to be served on the permittee or other person responsible for the encroachment or excavation. In addition to setting forth the administrator’s decision to perform such work, the notice shall include the reasons for the removal or restoration work and state that the work will be performed for the account of and at the cost of the permittee or other person responsible for the encroachment or excavation. Except where the work to be performed by the administrator is necessary to remove or remedy a condition that threatens the safety of life or property, the notice shall allow the permittee or other person responsible for the encroachment or excavation to immediately undertake removal or restoration work at such person’s sole cost and expense, provided the work is completed by the person within a reasonable time as determined by the administrator and as set forth in the notice.

C. Liability for Cost of Restoration. The permittee or other person responsible for the encroachment or excavation that results in the performance of removal or restoration work by the administrator in the manner provided by this section shall, upon completion of the work, be liable to the city for the full cost thereof. In addition, where a surety bond or other security was provided to the city as a condition of a permit authorizing construction or excavation work within a public right-of-way or city utility easement, the city will exercise all rights it has under the surety bond or other security to recover all costs of such work up to the full amount of the surety bond or other security. (Ord. No. 2002-07, § 1, 5-20-02)

Any violation of the provisions of this chapter shall be punishable either as an infraction or by a civil penalty in the manner and in the amount provided for in Title 1; except that a violation of an order to stop work, an order revoking a permit, or the removal or defacement of a notice of such order posted by the administrator in the manner provided by this chapter shall be punishable as a misdemeanor. (Ord. No. 2002-07, § 1, 5-20-02)