Villa Park Municipal Code Art. 17-5 Procedure for Construction and Maintenance of Encroachments in The…

The purpose of this section is to establish a comprehensive set of regulations and procedures for the construction and maintenance of structures which encroach into the public right-of-way.

(Ord. #91-397, § 1)

As used in this section:

"Encroachment" shall mean any physical obstruction and includes any structure or object of any kind or character placed, without the authority of law, either in, under, over or across any City street or public right-of-way.

"Encroachment Permit" shall mean a permit issued by the City Manager or his designee for the purpose of encroaching within the public right-of-way.

"Parkway" shall mean the area between the sidewalk and the curb of any street, and where there is no sidewalk, that area between the edge of the roadway and the property line adjacent thereto. "Parkway" also includes any area within a roadway which is not open to vehicular travel.

"Permittee" shall mean any person, firm, corporation or public agency desiring to obtain or having obtained an encroachment permit as defined herein.

"Person" shall mean any individual, company, corporation, association, business or other legal entity.

"Right-of-way" shall mean land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the general public for street, highway, alley, pedestrian walkway, storm drainage, bicycle path or other purposes.

"Sidewalk" shall mean any surface provided for the exclusive use of pedestrians.

"Street" shall mean all that area dedicated to public use for public street purposes and includes, but is not limited to, roadways, parkways, alleys and sidewalks.

"Transferee" shall mean a subsequent purchaser or owner, who acquires title to the property benefiting from the encroachment.

(Ord. #91-397, § 1)

All encroachments which are placed or which exist in the right-of-way in violation of the provisions of this section are public nuisances and may be removed by the City Manager or his designee as provided in subsection 17-5.13 et seq. All owners of encroachments existing prior to the adoption of this section [June 26, 1991] shall have ninety (90) days from the effective date of this section [July 26, 1991] to either remove the encroachment or obtain an encroachment permit.

(Ord. #91-397, § 1)

No person shall construct, place or maintain an encroachment which in whole or in part rests upon, in or over any public right-of-way without having first obtained an encroachment permit to do so from the City Manager or his designee unless explicitly exempted by subsection 17-5.5. Such encroachment permit is a license to construct and maintain an encroachment in the public right-of-way and does not confer on the permittee a vested property interest in the land upon which the encroachment is constructed or maintained. The City Manager or his designee, before issuing such encroachment permit, shall require:

a. A written application on the form provided by the City requesting approval for such encroachment to be made and filed with the City Manager or his designee, wherein the applicant shall set forth the name and residence or business address of the person making such application and shall state in detail the area of each encroachment intended to be made, the purpose for which the encroachment is to be made and used, the time during which it is estimated that the encroachment will exist, and such other information as may be requested by the City Manager or his designee.

b. The presentation of a plat, in duplicate, showing the location of each proposed encroachment and the dimensions thereof, and such other details as the City Manager or his designee may require to be shown upon such plat.

(Ord. #91-397, § 1)

The provisions of this section shall not prevent any public utility from maintaining any facility lawfully on any public sidewalk or parkway. In addition, the provisions of this section shall not apply to mailboxes, mailbox structures and other structures (except fences and walls) which cover less than four (4) square feet in area.

(Ord. #91-397, § 1)

a. Approval. Upon finding the requested encroachment permit conforms to the provisions of this section and other applicable provisions of the Villa Park Municipal Code, the City Manager or his designee may issue the encroachment permit. Upon issuance of the encroachment permit, the City Manager or his designee shall record in the office of the Orange County Recorder a license agreement executed by the permittee and the City Manager reflecting the terms of the encroachment permit, including the term that, upon transfer of the property receiving the benefit of the encroachment, such transferee shall file an instrument evidencing the transfer as provided in Section 17-5.9.

b. Denial. The City Manager or his designee shall deny the encroachment permit if he determines any of the following:

1. The requested encroachment permit is in conflict with any provision of the Villa Park Municipal Code.

2. The proposed encroachment would obstruct or prevent the use of a public right-of-way by the general public.

3. The proposed encroachment would consist of refuse, trash, garbage, construction debris or containers for refuse, trash, garbage or construction debris.

4. The proposed encroachment would constitute a traffic hazard.

5. The proposed encroachment would constitute an advertising sign or device of any description.

6. The proposed encroachment would constitute a threat to the health, safety or welfare of the general public.

The decision by the City Manager or his designee to deny the encroachment permit shall be final unless the applicant appeals the decision within fifteen (15) days of receipt of the decision to the City Council. The City Council shall hear and determine the issues as in other cases of appeal to the City Council.

(Ord. #91-397, § 1)

a. Provisions of Encroachment Permit. The encroachment permit shall provide that the permittee, his successors and assigns, shall indemnify, defend (with counsel of City's choice) and hold harmless the City, its officers and employees, from and against any and all claims for injury, loss, damage, liability, cost and expense which the City, its officers and employees, may suffer, sustain, incur, be put to, pay or lay out from any and all actions, suits, proceedings, claims and demands which may be brought, made, or filed against the City, its officers and employees, by any person, whether a trespasser, invitee or guest, by reason of or arising out of, or in any way connected with the existence of any encroachment in any public right-of-way authorized by any encroachment permit issued to the permittee.

b. Conditions of Encroachment Permit. The encroachment permit shall be subject to the following conditions which shall be stated thereon:

1. The encroachment permit must be shown, on demand, to any authorized representative of the City or any law enforcement officer.

2. The encroachment permit shall authorize the location of an encroachment only on such portion of the public right-of-way over which the City has jurisdiction and in such location as shown on the plat as approved by the City Manager or his designee.

3. At the time of the issuance of the encroachment permit, the City Manager or his designee may prescribe such additional conditions as he may deem reasonably necessary to ensure the adequate and safe use of the public right-of-way and to ensure the public property is restored to a condition equal to or better than that which existed prior to the encroachment.

(Ord. #91-397, § 1)

The fee for an encroachment permit shall be established by resolution of the City Council.

(Ord. #91-397, § 1)

The terms and conditions enumerated in this section shall be binding on all transferees. Upon transfer of any permit granted hereunder, the new transferee shall, within ninety (90) days, file with the City Clerk a written instrument evidencing the transfer and a notarized statement agreeing to the terms and conditions of the permit.

(Ord. #91-397, § 1)

The encroachment permit shall be valid for as long as the permittee, his successor or assign, owns and maintains the encroachment or until such time as the City Manager or his designee determines is appropriate.

(Ord. #91-397, § 1)

No action pursuant to the provisions of this section shall be construed to relieve the person responsible for the existence of any encroachment within the public right-of-way from any liability whatsoever arising out of the existence of such condition, nor shall any provision of this section be construed to constitute any assumption of liability by the City of any duties imposed by law or contract upon any person.

(Ord. #91-397, § 1)

Any encroachment permit may be revoked at any time at the option of the City Manager or his designee whenever:

a. It appears to him that the continuing allowance of the encroachment, whether because of changed conditions or otherwise, interferes with full, adequate or safe public use of the right-of-way involved; or

b. The permittee, his successor or assign, fails to comply with or violates any City ordinance, City standards, safety regulations or any condition of the issuance of the encroachment permit.

Upon revocation of the encroachment permit, the permittee, his successor or assign, shall immediately restore the public right-of-way to a condition as required by the City Manager or his designee within the time specified by the City Manager or his designee; and the City may take any and all necessary action so required to restore the right-of-way, the cost of which shall be borne by the permittee, his successor or assign, and if not paid within a reasonable time, shall be recorded as a lien against any property owned by the permittee, his successor or assign, whether within the City of Villa Park or not. Any and all costs incurred by the City for enforcement of this section shall be at the expense of the permittee, his successor or assign. Cost incurred by the City will be recovered by legal action, if necessary.

(Ord. #91-397, § 1)

If there is no valid permit for an encroachment, or if the terms of the encroachment permit are not complied with, the City Manager or his designee, may summarily abate, remove or by notice may require the removal of any of the following encroachments:

a. An encroachment which obstructs or prevents the use of a public right-of-way by the general public.

b. Any encroachment which consists of refuse, trash, garbage, construction debris or containers for refuse, trash, garbage or construction debris.

c. An encroachment which is a traffic hazard.

d. An encroachment which is an advertising sign or device of any description.

e. An encroachment which, in the discretion of the City Manager, his designee or the City Council, constitutes a threat to the health, safety or welfare of the general public.

The City Manager or his designee may return any such encroachment to its owner, or otherwise dispose of it in his discretion; except that if the City Manager or his designee determines in good faith that the encroachment is of more than nominal value, he shall not effect such other disposition until he has made a reasonable attempt to identify and notify the owner of the encroachment and has provided a reasonable time for the owner to retrieve it under the provisions of this section. The return of such encroachment may be conditioned upon payment of an amount sufficient to reimburse the City for the expenses for the removal and storage of the encroachment. The City Manager or his designee may recover from the person causing any of the above encroachments, in an action brought in the name of the City for that purpose, the court costs of the City, the expense of such removal, and any other damages caused by the encroachment or the abatement thereof.

(Ord. #91-397, § 1)

The City Manager or his designee may, by notice, require the removal of any other encroachment not specified in subsection 17-5.13 from any public right-of-way if there is no valid permit for the encroachment or if the terms of the encroachment permit are not complied with.

(Ord. #91-397, § 1)

The notice referred to in subsections 17-5.13 and 17-5.14 shall be served upon the occupant or owner of the land, or the person causing, controlling or owning the encroachment, or shall be left at the place of residence of such occupant, owner or person, or shall be posted on the encroachment. The notice shall specify the breadth of the public right-of-way and the place and extent of the encroachment, and shall require the removal of such encroachment within ten (10) days.

(Ord. #91-397, § 1)

If the property owner or owner of the encroachment denies that an encroachment exists, said person shall submit a survey prepared by a licensed surveyor indicating the location of the public right-of-way. Thereafter, if it is determined that an encroachment exists, the City shall commence, in any court of competent jurisdiction, an abatement action in the name of the City.

(Ord. #91-397, § 1)

If the property owner fails to deny that an encroachment exists, and if the encroachment is not removed within ten (10) days from and after service or posting of the notice, the City may remove the encroachment at the expense of the person causing the encroachment to exist.

(Ord. #91-397, § 1)

Any person who violates any provision of this section or of any encroachment permit issued hereunder shall be guilty of a misdemeanor and upon conviction thereof shall be liable to the penalty stated in Chapter I, Article 1-5.

(Ord. #91-397, § 1)