Chapter 12.20 — ENCROACHMENTS AND EXCAVATIONS

Editor's note— Ord. No. 3060, § 1, adopted Dec. 13, 2016, amended the title of Ch. 12.20 to read as herein set out. Formerly, Ch. 12.20 was titled, "Construction and Repair of Streets and Sidewalks."

A.

No person shall make any excavation or encroach in, lay, construct, reconstruct, remove or repair, place soil or materials, in any improved or unimproved street, alley or other public place in the city, or in, over or through any property or rights-of-way owned by the city, any curb, sidewalk, gutter, driveway, graded and oiled roadway, macadamized roadway, pavement, sanitary sewer, storm drain or culvert without first obtaining a permit in writing so to do from the city engineer and without first obtaining the lines and grades therefore from the city engineer. Within a village design district, as established by ordinance of the city, raised landscape planters may be placed or constructed and maintained within a public right-of-way in accordance with the standards established for planters within such districts after first obtaining a permit from the city engineer.

B.

The city engineer may vary the terms of this chapter in the event the provisions of this chapter cause any undue hardship upon a property owner. In granting any such variance, the city engineer shall take into consideration the physical condition of the real property, the traffic congestion upon any street to which the curb is being cut, the nature of the surrounding property, trees, buildings and occupational density of surrounding property and shall only grant the variance where it is necessary and in accordance with the intent of this chapter. The decision of the city engineer upon the granting or denying of any variance may be appealed by an interested party to the city council by written notice of appeal filed with the city clerk within ten days after the decision and setting forth the nature and grounds of the appeal, the request for any reversal or modification, and the payment to the city clerk of a fee established by a resolution of the city council for the privilege of filing the appeal, which fee shall be paid at the time the notice of appeal is filed with the city clerk. The city council may affirm, modify or reverse the decision of the city engineer and upon such terms and conditions as it deems advisable.

C.

The city engineer may designate the time of day or night when work is to be done if in his/her judgment it is necessary to prevent undue interference with traffic or danger to the safety of persons using the same.

D.

The holder of any permit and any agent, servant or employee working for the permit holder on any excavation and fill shall inform himself/herself and obtain all necessary information as to the existence and location of all underground pipes, lines, maintenance access holes, wires, substructures and appurtenances of any utility and the city shall be protected by the permittee against any damage by reason of any excavation or fill. Any damage caused to the underground installations appurtenances or substructures shall be paid for by the permittee. Such repairs as are required shall be made or be caused to be made by the city and billed to the permittee, who shall pay them upon receipt of a statement of the cost of the repair, replacement or reconstruction of the damaged substructures or appurtenances.

E.

Encroachments on City Streets.

Whenever street reconstruction or rehabilitation has occurred within the five years after completion or from the recordation of a notice of completion, immediately preceding a permit request, the permittee shall resurface the street within the limits of the longitudinal excavation to the satisfaction of the city engineer.

Whenever a street is slurry sealed within the past two years immediately preceding a permit request, the permittee shall resurface the entire street within the limits of the longitudinal excavation to the satisfaction of the city engineer.

The above-noted provisions may be waived by the city council in cases in which the city engineer has determined that there are exceptional circumstances warranting such a waiver.

F.

It shall be a public nuisance and a violation of the code for any person, as principal, agent, employee, or otherwise, to violate or fail, neglect, or refuse to comply with any of the provisions of this chapter.

G.

Permit Required for Encroachment.

No person shall construct, maintain or place any encroachment without complying with the terms of this chapter. No building permit, zoning permit, use permit, variance or public right-of-way permit for any construction in the public right- of-way will be issued until the encroachment permit has been obtained.

Except as provided in Section 12.20.30, no major encroachment shall be allowed except in compliance with the terms of a permit to be granted to the property owner of abutting real property or his/her authorized agent by resolution of the city council. This resolution shall be granted in the sole discretion of the city council.

Except as provided in Section 12.20.30, no minor encroachment shall be allowed except in compliance with the terms of a permit to be granted to the property owner of abutting real property or his/her authorized agent by the city engineer.

The city engineer shall have authority to decide the classification of an encroachment and his/her decision shall be final.

The city engineer may require that a separate permit be obtained for each separate project for the installation of an encroachment.

H.

A fee for encroachment permits may be established by resolution of the city council and shall be paid to the city at the time of application for issuance or renewal of any encroachment permit, including but not limited to permit riders. Public utility companies operating under franchise agreement with the city may pay monthly or periodic permit fees, or provide a deposit in advance for the estimated volume of permit applications subject to an agreement approved by the city engineer.

I.

If in the course of events the owner of a previously approved encroachment finds that emergency repairs are necessary to protect the facility, or to protect the investment of the owner and/or to provide continuing service to the public, and the owner of the facility finds that the city office that would issue the encroachment permit is not open, the owner may,

notify the police department the nature of any encroachment into the public roadway that may affect vehicle traffic or pedestrians, after notifying the Regional Notification Center (Underground Service Alert), conduct such work as is necessary to cause the needed repairs, provided that the owner of the facility requests a permit for the work conducted on the next day that the city office that issues encroachment permits is open. Notwithstanding any other provisions in this chapter, no emergency work may be done if the police department determines that the proposed work would represent an unreasonable threat to the public health, welfare or safety or the city engineer determines that the work does not constitute an emergency.

(Ord. 2638 § 8, 1994; prior code § 7210)

(Ord. No. 3060, § 2, 12-13-16; Ord. No. 3112, § 2, 2-25-20)

A.

"Encroach" means constructing or placing structures of improvements over, upon, under, or using any public right-of- way in any manner other than its intended use.

B.

"Encroachment" shall include any of the following acts:

Erecting or maintaining any flag, banner, decoration, post, sign, pole, bollard, fence, guard-rail, wall, loading platform, mailbox, pipe, conduit, wire, wireless/telecommunication facilities such as cellular phone towers, or other structure on, over, or under a public right-of-way;

Constructing, placing, or maintaining, on, over, under, or within the public right-of-way any subsurface drainage structure or facility, groundwater monitoring well, gas/soil/groundwater vapor probes, piezometers, any pipe, conduit, wire or cable;

Constructing, placing, or installing sidewalks, curbs, gutters, driveways, or hardscape improvements;

Constructing an arbor which is a shelter of vines or branches of latticework covered with climbing shrubs, vines, or other forms of landscape;

Placing or maintaining any forms of outdoor dining facilities.

Placing or storing materials such as pavers, aggregate, pipe, and construction materials.

C.

"Major encroachment" means any permanent improvement attached to a structure or constructed in place so that it projects into the public right-of-way such as basement vaults, bridges, earth retaining structures over three feet above

grade, structure connected planter boxes, ramps, or fences over six feet above grade, or façade improvements. Projections over any part of the public right-of-way that are not permitted by or which are in excess of the limitations specified in the city of Whittier building code shall also be classified as major encroachments, including theatre marquees, signs suspended above the sidewalk, oriel windows, balconies, cornices and other architectural projections.

D.

"Minor encroachment" means encroachment into the public right-of-way resting on or projecting into the sidewalk area such as subsurface tiebacks, soil nails, concrete stairs, disabled access ramps where more than six feet of sidewalk area is preserved, subsurface foundations extending less than two feet from the property line, level landings for garages, landscape features less than two feet in height, conduit for privately owned phone and data lines connecting buildings owned by the permittee, landscape amenities, clocks, bus shelters, telecommunication facilities and equipment, bike racks, fences less than six feet above grade, earth retaining structures less than three feet above grade, benches and curbs around planter areas, outdoor dining, monument signs, driveways, and drainage culverts. Any encroachment which is not a minor encroachment is a major encroachment.

E.

"City engineer" includes the city engineer and his/her authorized delegate.

F.

"Permittee" means any person, persons, firm, company, corporation, association, public agency, public utility, or organization and the permittee's successors-in-interest which has been issued a permit for said encroachment by the city engineer. All obligations, responsibilities, and other requirements of the permittee as herein described, shall be binding on successors-in-interest of the original permittee and subsequent owners of the property benefitted by the encroachment unless otherwise specified in the permit.

(Ord. No. 3060, § 3, 12-13-16; Ord. No. 3112, § 2, 2-25-20)

Editor's note— Ord. No. 3060, § 3, adopted Dec. 13, 2016, amended § 12.20.020 in its entirety to read as herein set out. Former § 12.20.020 pertained to permit application and derived from prior code, § 7210.2.

A.

The permit procedure for a major encroachment is as follows:

A separate application must be filed by the property owner or his/her authorized agent for each permit for a major encroachment. Application for a permit to install a major encroachment shall be filed in the office of the city engineer. After filing of the application, the city engineer shall cause an investigation to be made of the site where the proposed encroachment would be installed. The application must be accompanied by a sketch or plan showing the dimensions and exact location of the proposed encroachment and its relationship to the remainder of the structure and the street lines. A plan shall be required in all cases in addition to a brief written description of the encroachment. Certain major encroachments will require a legal description and plan to accompany the legal description.

When such application for a major encroachment permit and the details shown upon the accompanying sketch or plan comply with the terms of this chapter and any further requirements set by the city engineer, the applicant shall post a notice of intent to encroach adjacent to the encroachment site. Any and all responses to this notice will be forwarded to

the city engineer for evaluation in recommendation of permit approval, conditional approval, or denial. All responses, recommendations and findings will be forwarded to the city council.

The city council, by license agreement, if it determines to authorize a major encroachment permit, may prescribe special conditions for granting a conditional revocable permit in compliance with the terms of this chapter and such other conditions as it deems necessary for the preservation or maintenance of the public health, safety and welfare to the extent that it will not substantially impair franchise rights previously granted to a public utility. Such license agreement constitutes a conditional revocable permit for encroachment which shall take effect when all other conditions set forth therein and of this chapter shall have been complied with and such permit shall remain in effect as long as the permittee complies with all conditions established for the granting of such permit.

B.

The permit procedure for a minor encroachment is as follows:

A separate permit application must be filed for each minor encroachment in the office of the city engineer. Such application shall be accompanied by a sketch or plan showing the dimensions and exact location of the proposed encroachment and its relationship to any structure, and the sidewalk area. A plan shall be required in all cases in addition to a brief written description of the encroachment. After filing of the application, the City Engineer shall cause an inspection to be made of the site where the proposed encroachment would be installed.

When such application for a minor encroachment permit and the details shown upon the accompanying sketch or plan comply with the terms of this chapter and any further requirements set by the city engineer for public health, safety and appearance reasons, the applicant shall post a notice of intent to encroach adjacent to the encroachment site. The city engineer shall consider any and all responses to the notice in making his/her decision to deny, conditionally approve, or approve the encroachment. Such approval constitutes the granting of a conditional revocable permit for a minor encroachment and such permit shall remain in effect as long as the permittee complies with all conditions established for the granting of such permit.

Any person aggrieved by the refusal of a minor encroachment permit required by this chapter may appeal to the city council. All appeals must be filed with the city clerk within thirty days of the mailing of the decision of the city engineer for scheduling on the city council's calendar.

Upon completion of the excavations and/or encroachment permit work as provided in this chapter, the permit holder shall give written or email notice thereof to the city engineer.

C.

Security deposit—Required amount.

A deposit may be required prior to the issuance of a permit. The deposit shall be a cashier's check, certificate of deposit, surety bond or applicable forms of a security issued by a company authorized to do business in the state of California acceptable to the city engineer. The city engineer shall set the amount of the deposit based on potential

damage or cost of improvements not completed to and within the public property or rights-of-way. All deposits shall remain in force for a period of up to one year from the date of completion of work authorized by the permit. Utility companies doing work under any and all franchise agreements are exempt from making a security deposit.

Upon satisfactory completion of all the terms and conditions of a permit, the city engineer shall issue a certificate to this effect to the city controller. Upon receipt of such certificate and after the expiration of the time period established by the permit, the city controller shall be authorized and directed to return the cash deposit or bond or other security posted by the permittee to the permittee in accordance with the provisions in this chapter. Unless required by prior agreement or law, the amount returned will not include interest.

(Ord. No. 3060, § 4, 12-13-16; Ord. No. 3112, § 2, 2-25-20)

Editor's note— Ord. No. 3060, § 4, adopted Dec. 13, 2016, amended § 12.20.030 in its entirety to read as herein set out. Former § 12.20.030 pertained to inspection before commencement of work and derived from prior code, § 7210.5.

If any portion of the work is commenced before the issuance of a permit, an additional permit charge in the amount in accordance with the latest fee resolution adopted by the city council shall be charged and collected before a permit is issued, except as provided in Section 12.20.010(I) for emergency repairs.

(Ord. 2545 § 1, 1991: prior code § 7210.6)

(Ord. No. 3060, § 5, 12-13-16)

No permit issued under the provisions of this chapter shall be transferable, and every permit shall become and be void unless the work thereby permitted to be done is completed by the date specified therein.

(Prior code § 7210.8)

Any person engaged in the performance of any work mentioned in Section 12.20.010 shall at all times while the work is in progress, keep at the place where the work is located the original permits for the work and must, on demand, exhibit them to the city manager, the director of public works, the city engineer or to any of his/her inspectors, or to any police officer.

(Prior code § 7210.9)

(Ord. No. 3112, § 2, 2-25-20)

No person to whom a permit has been granted under the provisions of this chapter shall perform any of the work mentioned in Sections 12.20.010 and 12.20.100 in a greater amount or quantity than that specified in the permit issued therefor.

(Prior code § 7210.10)

A.

The following encroachments are specifically prohibited, and no applications shall be accepted nor permits issued therefore:

Construction or maintenance of a loading dock on or in a public right-of-way;

Installation or maintenance of underground tanks, clarifiers, grease interceptors, vaults or elevators, except that underground vaults may be permitted as part of facilities owner by public utilities and public agencies;

Construction or placement of any fill, wall, pipe, column, pole, fence, tree, shrub or other thing which would obstruct and reduce the capacity of any flood control channel to carry storm water or reduce the effectiveness of stormwater quality facilities;

Erection, installation, or maintenance of posts, poles, bollards, or columns for the purpose of carrying lights intended primarily for lighting of abutting private property;

Erection or maintenance of a permanent post, pole, column, or structure for the support of advertising signs;

Installation or maintenance of signs bearing flashing or moving lights, except for temporary warning signs, barricades, or flashers required for protection of the public during construction operations;

Construction, erection, installation, or extension of a structure intended to be used for a profit-making enterprise.

Construction, erection, installation of arbors.

B.

The following encroachments may be placed or maintained without a permit:

Mailboxes that are placed in accordance with the rules and regulations by the United States Postal Service, provided that no box is placed so as to endanger the life or safety of the traveling public.

Lawns of any grass and type not prohibited by other laws, provided that:

a.

The lawn shall not extend into the traveled way of the public street, drainage ditches, gutters, other drainage facilities, or sidewalk.

b.

The general public may not be denied the use of the planted area for pedestrian or other lawful travel. The city may use the planted area for any purpose whatsoever, and may issue a permit to any applicant to go thereon to perform work. If the lawn is damaged or disturbed in the course of such work, it will be removed and replaced by the permittee doing the work unless the permit specifically states otherwise.

(Ord. No. 3060, § 6, 12-13-16)

Editor's note— Ord. No. 3060, § 6, adopted Dec. 13, 2016, amended § 12.20.080 in its entirety to read as herein set out. Former § 12.20.080 pertained to permit—more than one location and derived from prior code, § 7210.7.

When, in the opinion of the city engineer, the proposed work requires the making of special plans or inspections therefor, the city engineer shall make an estimate of the total expense which will be incurred by the city in connection therewith, which shall include the cost of engineering work and estimates, the preparation of plans, inspection and all other necessary work and expense, and shall make an estimate of the costs to be incurred by the city for the proposed work. The applicant shall then deposit with the city treasurer the estimated amount of the total expense in cash.

(Prior code § 7210.3)

A.

All construction work between the curbline of any public street and the property line shall be done in accordance with standard plans and specifications approved and adopted by resolution of the city council.

B.

Any unused driveway depression in or along any curb in the city shall be removed and curb, gutter and sidewalk constructed to conform with the existing curb, gutter and sidewalk and a permit therefor shall be required as provided in this chapter. Whenever an application is made for a permit to construct a driveway approach from the street to private property, the city engineer shall determine whether or not any existing driveway depression shall be filled in and, if so, he/she shall order it done and provide therefor any new permit issued.

C.

Whenever a commercial driveway is constructed and the existing sidewalk does not conform to the plans and specifications, then such portion of the sidewalk shall be removed and reconstructed in accordance with such requirements.

D.

No portion of any driveway shall be permitted between the points of curvature on a curb return.

E.

Installation of driveways shall be prohibited at locations where, in the opinion of the city traffic engineer, unusual hazards would be created by the installation of such driveways.

F.

All driveways shall be considered "commercial" driveways if serving any business or commercial property or four or more residential units.

G.

No part of any driveway shall be constructed beyond the line of the permittee's property unless written permission is given by the adjacent property owner, and a copy of the permit shall be attached to the application for the permit for the driveway.

H.

No driveways shall be located where only partial ingress of vehicles onto private property, for the purpose of loading and unloading, is possible.

I.

No driveways shall be located where no ingress of vehicles onto private property is possible.

J.

No driveways shall be located where parking cannot be legally provided on private property.

K.

Coloring or staining of the sidewalk, or driveway, is permitted only when authorized by the permit as approved by the city engineer. All ground surface materials shall take into account Americans with Disabilities Act standards and requirements. When a colored or stained sidewalk, or driveway, is authorized, only subdued muted earth tone colors may be used. The same color shall extend along the full frontage of the lot, including driveways, if any. Partial coloring or checkerboard patterns of two or more colors will not be permitted.

L.

Coloring of full height curb shall not be permitted.

M.

Portland cement concrete is the only material that may be used in the parkway area unless alternative or enhanced paving is preferred by the property owner. Bituminous materials, brick, pavers, flagstone, terrazzo, tile, etc., are prohibited unless an indemnity agreement has been approved by the city engineer and signed by the property owner. The agreement shall be attached to the encroachment permit. Enhanced paving or stamped concrete sidewalks shall not be permitted unless approved by the city engineer.

N.

The minimum thickness of sidewalks shall be four inches. The minimum thickness for residential driveways shall be four inches. The minimum thickness for commercial driveways shall be ten inches with six inches of concrete underlain by four inches of aggregate base materials.

O.

In case of undue hardship upon the property owner and providing the property owner delivers an agreement of indemnity as required by the city engineer, the city engineer may grant a variance in grade notwithstanding Americans with Disabilities Act standards and requirements; the variance may also include the right to install a different type and kind of sidewalk where an indemnity agreement has been approved by the city engineer and signed by the property owner.

(Prior code § 7210.1)

(Ord. No. 3060, § 7, 12-13-16; Ord. No. 3112, § 2, 2-25-20)

All work mentioned in Sections 12.20.010 and 12.20.100, for which a permit has been issued as provided in this chapter, shall be performed in accordance with the specifications adopted by the city (or the special plans and specifications approved therefor by the city engineer) and referred to in the permit, and shall be performed to the satisfaction of and under the supervision of the city engineer or his/her authorized agent.

(Prior code § 7210.4)

(Ord. No. 3112, § 2, 2-25-20)

These regulations are subject to the existence of public utilities or other improvements, or the reserving of proper locations for their future installation as may be required by the city. If the relocating of such utilities or other improvements from their existing locations is necessary to permit a driveway approach construction, the applicant or owner of the improvement must pay for the necessary relocation.

(Prior code § 7210.11)

Permits for the construction of driveway approaches to service stations shall not be issued unless a clear distance of at least ten feet is provided between the gasoline pump block and the property line adjacent to the street, so that vehicles may be parked on private property while being serviced or served.

(Prior code § 7210.12)

No person performing any work under the provisions of this chapter shall fail, refuse or neglect to remove all materials and debris within three days after the completion of the work; provided, however, that where new work is covered with earth, the terms of the specifications of the city governing the work shall control.

(Prior code § 7210.13)

All paving or other improvements constructed by a property owner, within rights-of-way or property owned by the city, shall be maintained in a safe and usable condition by or at the expense of the property owner.

(Prior code § 7210.14)

In any permit granted under the provisions of this chapter, the city engineer may specify traffic control devices such as lights, barriers, barricades, warning signs or other measures designated to protect the traveling public which shall be erected, maintained or provided by the permit holder as long as these requirements are not in conflict with the California Vehicle Code and/or Manual of Uniform Traffic Control Devices; provided, however, that any omission on the part of the city engineer to specify in a permit what traffic control devices shall be erected and maintained by the permit holder shall not excuse the permit holder from taking all reasonable and proper steps to place traffic control devices reasonably required to warn the public of any excavations or work of improvement then in progress.

(Ord. No. 3060, § 8, 12-13-16)

Editor's note— Ord. No. 3060, § 8, adopted Dec. 13, 2016, amended § 12.20.160 in its entirety to read as herein set out. Former § 12.20.160 pertained to warning devices and derived from prior code, § 7210.15.

A.

This chapter shall not be construed to apply to the performance of any of the classes of work mentioned in this chapter under contracts made by the city in accordance with the provisions of the general laws of the state providing for the improvement of streets and other public places in municipalities.

B.

The provisions of this chapter shall not apply to excavations and/or encroachments made by any department board or officer of the city in the pursuit of its or their official duty.

(Prior code § 7210.16)

(Ord. No. 3060, § 8, 12-13-16)