Chapter 10.04 ENCROACHMENT AND WORK IN THE PUBLIC RIGHT-OF-WAY

The city owns various interests in real property, including public streets, alleys, sidewalks, driveways, and gutters. From time to time, public and private persons request the use of the city’s real property. The purpose of this chapter is to establish policies, procedures, and fees to permit persons to encroach upon the real property in which the city has legal interests, while at the same time protecting the health, safety and welfare of the public. The provisions of this chapter apply to the placing, changing, or renewing of any encroachment in the public way. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-27)].

10.04.020 Findings.

The city council finds and determines that the installation, repair, maintenance and removal of encroachments in the public way must be regulated in order to protect the public health, safety and welfare and to provide for the orderly administration and maintenance of the public way for the benefit of the community, while at the same time allowing reasonable accommodation and cooperative flexibility for providing necessary utility and other convenience services to the community. The city council further finds that public and private persons who install encroachments in the public way bear a responsibility to help preserve the public way and to contribute to the administrative costs incurred by the community because of such encroachments. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-28)].

10.04.030 Definitions.

“Director” means the director of public works of the city of Aliso Viejo or his or her duly authorized representative.

“Emergency repairs” means repairs that are necessary for the immediate protection of life or property, or that are necessary for the restoration of an existing utility service.

“Encroachment” means any improvement, including, but not limited to, a tower, pole, pole line, light or signal standard, traffic or irrigation controller, pipe, pipeline, conduit, cable, fiber optics, manhole, duct, tunnel, trench, utility cabinet or similar appurtenance, driveway, private road, fence, sign, billboard, stand or building, or any structure or object of any kind or character not particularly mentioned herein, which is placed in, under or over any portion of the public way.

“Permittee” means the person to whom the encroachment permit is issued.

“Person” means and includes any natural person, corporation, firm, agency, copartnership or association, and any public utility, public entity or governmental agency, including the state and the United States.

“Protective measures” means any barricades, traffic control devices, trench plates or similar such devices intended to give warning and protect the public from injury or loss resulting from the placement of an encroachment within the public way.

“Public way” means any public highway, public street, public right-of-way, public alley, public sidewalk, public driveway, curb, pavement, gutter, parkway, easement, or public place in the city either owned by the city or dedicated to the public.

“Vehicle Code” means the California Vehicle Code. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-29)].

Cross-reference: definitions generally, AVMC 1.02.010.

10.04.040 Encroachment permit – Required.

No person, excepting the city or its contractors, shall place, change or renew an encroachment without first obtaining an encroachment permit from the director in accordance with this chapter, unless specifically exempted by this chapter. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-30)].

10.04.050 Encroachment permit – Exemption.

Repealed by Ord. 2011-134. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-31)].

10.04.060 Encroachment permit – Application.

Application for a permit shall be made in writing (including a writing transmitted through an electronic medium if approved by the director) on a form supplied by the director. The application shall include:

A. An agreement, signed by the applicant, that if the permit expires, is revoked by the director, or is vacated or abandoned, the applicant will, immediately and to the satisfaction of the director, restore the public way to the equivalent or better condition than it was in on the date that the permit was issued.

B. An agreement, signed by the applicant, that the city and any officer or employee thereof shall be saved harmless by the applicant from any liability or responsibility for any accident, loss or damage to persons or property, happening or occurring as the proximate result of any placement, change or renewal of an encroachment under the terms of this application and the permit or permits which may be granted in response thereto, and that all of the liabilities are assumed by the applicant;

C. A statement signed by the applicant that if any encroachment for which a permit is issued interferes with proper governmental use of the street, then the applicant and his successors or assigns will at his own expense remove such encroachment or relocate it at a location selected in cooperation with the director.

D. Such other information that the director may require. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-32)].

10.04.070 Encroachment permit – Issuance fee.

Every person applying for a permit required by this chapter shall at the time of making application for the permit pay a permit issuance fee in an amount set by the city council. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-33)].

10.04.080 Encroachment permit – Inspection fee.

Every person applying for a permit required by this chapter shall at the time of making application for the permit pay, in addition to the issuance fee, an inspection fee in an amount set by the city council, unless an inspection is waived as provided in AVMC 10.04.250(B). [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-34)].

10.04.090 Billing in lieu of fees.

The director may authorize billing of the requisite permit fees from public utilities or franchisees that perform work within the public way on a continuing and regular basis. When billing has been authorized, the utility or franchisee requesting the permit shall place a deposit in an amount satisfactory to the director to guarantee payment of the invoiced fees. The director may waive this deposit requirement if the utility or franchisee has an existing franchise agreement or other written agreement with the city sufficient to guarantee payment of the invoiced fees. The utility or franchisee requesting the permit shall be invoiced on a frequency acceptable to the director but not less than semi-annually. Invoiced fees shall be due and payable within 30 days of receipt of the invoice. Amounts not paid within the due date may be deducted from the deposit. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-35)].

10.04.100 Encroachment permit – Approval of application.

The director shall not approve an application for an encroachment permit unless it appears to him or her that the encroachment proposed will not significantly damage the public ways or create an unreasonable risk of harm to persons or property, and that the approval of the application is in the public interest; provided, however, the director may approve the application subject to conditions, including measures to protect the traveling public, if the director determines that by doing so it would be in the public interest, that no significant damage to the public ways would be created, and that no unreasonable risk of harm to persons or property would be created. [Ord. 2011-135 § 3(b); Ord. 2011-134 § 4(b); Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-36)].

10.04.110 Security deposit.

A. Prior to conducting any work pursuant to an encroachment permit, each permittee shall, in addition to payment of the issuance fee and the inspection fees, deposit with the director a sum, to be fixed by the director, to guarantee completion of the work contemplated under the permit and restoration of the public way. The amount of the deposit shall be twice the estimated cost of completing the restoration but in no case less than $200.00. The security deposit shall be in cash or cash equivalent, or, in the discretion of the director may be in the form of a performance bond or equivalent security.

B. A security deposit will not be required in the following circumstances:

1. If the United States, this state, school district, public utility, franchisee, other public district or public body files with the director a written guarantee of payment of all costs for which they may become liable to the city, then a security deposit, at the discretion of the director, may not be required from such person.

2. If the permit is secured under a subdivision improvement agreement or right-of-way improvement agreement.

3. If the permittee is a franchisee of the city and has already provided sufficient security in accordance with the franchise agreement and related ordinance. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-37)].

10.04.120 Deductions from security deposit.

A. The city shall deduct from the security deposit made by the permittee the cost to the city of the placement of protective measures if required and the removal of the encroachment and restoration of the public way if the permittee fails or refuses to do so.

B. Before any sums are withdrawn from the security deposit, the city shall give written notice to the permittee of the act, default or failure to be remedied, or damages, cost or expenses which the city has incurred by reason of permittee’s act or default, and shall provide a reasonable opportunity for permittee to first remedy the existing or ongoing default or failure, if applicable.

C. If work is ongoing and the permit is still active, the permittee shall replenish the security deposit within 14 days after written notice from the city that there is a deficiency in the amount of the fund. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-38)].

10.04.130 Annual blanket permits.

The director may authorize issuance of an annual blanket encroachment permit to public utilities or franchisees that perform a high volume of work within the public way on a continuing and regular basis. Issuance of an annual blanket permit shall require execution of an agreement in a form prescribed by the director and approved by the city attorney. The fee for the permit shall be set by the city council. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-39)].

10.04.140 Additional deposit.

If, in the opinion of the director, any existing deposit of a permittee is not sufficient for the purpose for which it is intended, the director may require an additional deposit in such amount as he or she determines will be sufficient to protect the public interest. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-40)].

10.04.150 Relocation and replacement costs.

When required by the director, the permittee shall make proper arrangements for, and bear the cost of, relocating or replacing any structure, public utility, tree or shrub, where such relocation is made necessary by the proposed work for which a permit is issued. All relocations and replacements shall be completed to the satisfaction of the director. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-41)].

10.04.160 Emergency repair work.

A. No encroachment permit shall be required in advance for performing emergency repair work by employees or contractors of the United States, this state, school districts, other public district or public body or public utility agencies subject to regulation by the Public Utilities Commission of the state of California. In such event, however, a report of the emergency repair work in such form as may be required by the director shall be faxed to the director within 24 hours after the encroachment is made. All provisions of this chapter for the protection of the public and governing repairs to the public way shall apply to the same extent as where applications and permits are required. There shall be paid with each such report the same fees and deposits as would otherwise be required for a permit.

B. Nothing in this chapter prohibits any person not included within the scope of subsection (A) of this section from maintaining by virtue of any law, ordinance or permit, any pipe or conduit in any public way, or from making such excavation as may be necessary for the preservation of life or property when such necessity arises during such hours as the offices of the city are closed, if the person making such excavation obtains a permit therefor within five days after the offices of the director are first opened subsequent to the making of such excavation. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-42)].

10.04.170 Encroachment permit – Nontransferable.

Permits issued under this chapter are nontransferable; provided, however, a licensed contractor may perform work under an encroachment permit obtained by another person, but such licensed contractor must comply with the terms of the permit and, with the permittee, shall be liable for any and all violations thereof. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-43)].

10.04.180 Coordination of work.

All permittees holding a blanket permit or who perform work within the public way on a continuing and regular basis shall attend a quarterly public utility coordination meeting to be held by the director. The purpose of the coordination meeting shall be to schedule encroachments in a manner which will minimize disruptions to the public way. The director may issue directions or make changes to permits to ensure such coordination. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-44)].

10.04.190 Moratorium on encroachments.

The director may impose a moratorium on encroachments for up to a two-year period in any public way which has been resurfaced or otherwise improved by the city within the six months preceding the imposition of the moratorium. Any such moratorium shall not prohibit emergency repairs. Exceptions to the moratorium may be approved by the director on a case by case basis. When approving an exception to the moratorium, the director may place conditions and additional restrictions upon encroachments permitted during the moratorium period. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-45)].

10.04.200 Start of work – Time limit.

Every permittee shall commence the proposed work within 60 days after the granting of the permit and thereafter prosecute the work in a continuous, diligent, and workmanlike manner to completion. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-46)].

10.04.210 Work must conform to permit.

An encroachment must conform to the terms and conditions of the encroachment permit. Every person who performs any work covered by this chapter in an amount greater than, or in any way different from, or contrary to the terms of any permit issued therefor, violates this chapter. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-47)].

10.04.220 Contractor’s license required.

Excepting work done by regular full-time employees of the United States, this state or any other state, any municipal corporation, school district, public utility agencies, other public district or public body, all work done in the public way pursuant to an encroachment permit shall be performed by contractors licensed by the state of California, working within the area of expertise authorized by their license. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-48)].

10.04.230 Plans and specifications – Compliance.

The permittee shall perform all work authorized by the permit in accordance with the approved plans, if plans are approved with the permit. Except as otherwise provided in this section, all repairs of the public way shall conform to the street repair detail contained in Attachment “A.” Work shall also conform to “The Public Works Standards of the City of Aliso Viejo,” “The Standard Specifications for Public Works Construction,” latest edition, “Orange County Area Regional Standard Drawings,” latest edition, all on file with the director and, further, to the satisfaction of the director.

For trenches wider than one foot and areas two feet by two feet minimum, an alternate to the backfill method described in Attachment “A” may be used. This alternate method shall be as follows: Natural soil or select backfill shall have a relative compaction of 95 percent using mechanical means approved by the city engineer. The backfill shall be placed in six-inch or less lifts with optimum moisture (+/- five percent). All backfill shall be tested for proper density using acceptable density testing equipment (nuclear density/moisture gauge, sand cone, or equivalent, as approved by the city engineer). Density testing shall be done by a certified soils technician on each lift, at least every 400 square feet of backfill, with a minimum spacing of 150 feet in trenches. Certified testing results for each location shall be provided to the city engineer prior to final paving. The results shall be submitted by street or trench station. Recompression for failed test shall be of sufficient length to reach confident fill.

Attachment “A”

[Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-49)].

10.04.240 Plans and specifications – Changes.

No change in any plans, if plans are made, or specifications shall be made unless approved by the director. Any such approved change must be shown on as-built plans filed with the city. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-50)].

10.04.250 Request for inspector – Waiver of inspection.

A. Not less than 24 hours prior to the commencement of any work regulated by this chapter, the permittee shall notify the director, who shall assign a city inspector to the permit for purposes of inspecting the encroachment. The permittee shall specify the permit number as well as the day and hour when the work will commence.

B. The director may waive inspection, if he or she believes such inspection is not necessary to protect the interests of the city. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-51)].

10.04.260 Replacement of property corners.

The permittee shall at all times be responsible for the protection of property corner and street centerline monuments during the course of construction of the work contemplated under their permit. Any monumentation damaged or destroyed shall be replaced by the permittee. The permittee shall have the monument replaced by a licensed surveyor or registered civil engineer who is authorized to practice land surveying. Following restoration of the monument, a corner record or record of survey shall be filed with the county surveyor and recorded. The permittee shall bear all costs associated with replacing the monument. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-52)].

10.04.270 Removal of debris.

A permittee shall maintain the public way in a safe and orderly fashion at all times. All debris and excess material shall be immediately removed from the public way at the time of completion of construction. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-53)].

10.04.280 Traffic control.

The permittee shall provide adequate warning to the public at all times and shall follow the “Caltrans Watch Manual,” latest edition, or similar publication approved by the director, for all work within the public way. When required, a traffic control plan, in a format and number prescribed by the director, shall be submitted with the permit at the time of permit application. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-54)].

10.04.290 Defective work and materials.

Upon order of the director, any work or material which does not conform to the permit, the plans, if plans are made, and the specifications referred to in this chapter shall be removed and replaced so as to conform to the plans and specifications, notwithstanding that such work or material has been previously inspected, or approved, or accepted by the director. The inspection, approval, or acceptance of work or materials shall not relieve the permittee of any of their obligations to perform and complete the work according to the permit, the plans, if plans are made, and the specifications referred to in this chapter. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-55)].

10.04.300 Interference with public rights-of-way.

Every permittee who makes or causes to be made any excavation, or constructs, puts upon, maintains or leaves any obstruction or impediment to travel, or piles or places any material in or upon any public way, or installs or maintains or causes to be installed or maintained any tank, pipe, conduit, duct, or tunnel in or upon, or under the surface of any public way, at any location other than that described in the application, as amended, if amended, by the director, and shown in the plan filed with such application, or in any way contrary to the terms of the permit, violates this chapter. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-56)].

10.04.310 Encroachment permit – Changes.

Any permit issued by the director under any of the provisions of this chapter, or the conditions to which it has been made subject, may be amended or changed if the director deems such amendment or change to be necessary for the protection of the public ways, or to prevent undue interference with traffic, or to protect both persons and property within or adjacent to such public ways from damage or danger. Notification of the amendment or change shall be made by the director either by mailing written notice to the permittee at the address contained on his or her application for the permit, or by making personal service of the written notice to the permittee. The amendment or change shall be effective either 24 hours after the written notice is deposited in the United States mail or immediately upon completion of personal service. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-57)].

10.04.320 Default of permittee.

By applying for and obtaining a permit pursuant to this chapter, the permittee agrees with the city that in the event the permittee fails to comply promptly with the terms of the permit and perform and complete the work according to the plans, if any, and the specifications referred to in this chapter, or fails to comply with any other provisions of this chapter, in addition to its power to revise the permit pursuant to AVMC 10.04.310, the city may elect to perform and complete all or part of the work. In the event the city elects to perform any work, the permittee shall pay to the city upon demand of the director and prior to actual performance and completion of the work and by the city or its contractor, the cost of performing and completing all or part of the work according to such permit, the plans, if any, and the specifications.

The director may have the work performed either by the use of the city’s forces or by an independent contractor, whichever method the director deems appropriate; and in the event the permittee fails to pay such cost to the city upon demand, the city may bring an action in a court of competent jurisdiction to recover such cost together with reasonable administrative costs and attorneys’ fees. [Ord. 2011-136 § 13; Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-58)].

10.04.330 Public nuisance.

Any work performed contrary to the permit, the plans, if plans are made, and the specifications referred to in this chapter is declared to be a public nuisance, and upon order of the city council the city attorney shall immediately initiate proceedings necessary for the abatement, enjoinment, and removal thereof in the manner provided by law. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-59)].

10.04.340 Encroachment permit – Revocation.

A. The director is authorized to revoke any encroachment permit, upon determining that the permittee has failed to comply with one or more of the terms thereof or has provided materially false or misleading information regarding the encroachment.

B. The director is authorized to revoke any encroachment permit when the encroachment creates a hazard to public health, safety or general welfare.

C. Upon the revocation of an encroachment permit, the permittee shall immediately discontinue any work and cease and desist from further encroaching upon the public way. The permittee shall remediate the site to an as-near original condition as shall be feasible under the supervision and direction of the director. Encroachments shall be removed, unless authorized to be disabled and abandoned in place when determined to be feasible by the director.

D. Any permittee who violates any of the terms, conditions or restrictions of an encroachment permit and thereby materially and adversely affects the public health and safety shall be ineligible to receive another encroachment permit from the city for a period of one year following the date of such determination, unless this restriction is waived by the director. [Ord. 2011-136 § 14; Ord. 2011-135 § 3(c); Ord. 2011-134 § 4(c); Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-60)].

10.04.350 Use of public ways – Rights of others.

Every encroachment permit issued under this chapter is subject to the right of the city or of any other person entitled thereto, to use that part of such public way for any purpose for which such public way may lawfully be used. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-61)].

10.04.360 Violation – Penalty.

Every person who places, creates, owns, or maintains an encroachment in violation of this chapter or who otherwise violates this chapter is guilty of a misdemeanor. [Ord. 2010-126 § 1 (Exh. A); Ord. 2001-024 § 1 (6-3-62)].

Cross-reference: violations and penalties generally, Chapter 1.06 AVMC.

Cross-references: solid waste containers, AVMC 7.05.100; graffiti removal, AVMC 8.14.120; obstruction of public rights-of-way, AVMC 8.20.010 et seq.; grading and excavation code, Chapter 13.08 AVMC; signs, Chapter 15.34 AVMC; film and photo shoots, AVMC 15.46.020.