Chapter 11.05 ENCROACHMENTS

Encroach means going on, over, or under, or using a right-of-way in a manner which prevents, obstructs, or interferes with the normal use of that way, including the performance of any of the following acts:

1. Excavating or disturbing the rights-of-way;

2. Erecting or maintaining a post, sign, pole or fence on, over, or under the right-of-way;

3. Planting a tree, shrub, grass, or other growing thing within the right-of-way;

4. Placing or leaving on the right-of-way rubbish, brush, earth, or other material;

5. Constructing, placing, or maintaining on, over, under, or within the right-of-way a pathway, sidewalk, driveway or other surfacing, a culvert or other surface drainage or subsurface drainage facility, or a pipe, conduit, or cable;

6. Traveling on the right-of-way by any vehicle or combination of vehicles or object of dimension, weight, or other characteristic prohibited by law without a permit;

7. Lighting or building a fire within the right-of-way;

8. Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the right-of-way which causes or will cause an encroachment.

Permittee means a person proposing to do work or encroach on a right-of-way who holds a permit for encroachment.

Public street means the full width of the surfaced or traveled portion, including shoulders, of a road, street, path, lane or alley dedicated to, reserved for, or used by or for the general public when the road, street, path, lane and alley have been accepted as part of the city system of public streets, except highways forming a part of the state highway system.

Right-of-way means and includes all land or interest in land which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for or dedicated to the use of the general public for road or highway purposes. (Amended during 2005 recodification; 1991 code § 15-1.1)

11.05.020 Permit required.

A. Prohibition. No person without first obtaining a written permit may:

1. Encroach within, on, over, or under the limits of a right-of-way;

2. Make an alteration within, on, over, or under a right-of-way;

3. Construct, put on, maintain, or leave on a right-of-way any obstruction or impediment;

4. Cut or trim trees or set a fire on a right-of-way;

5. Place on, over, or under a right-of-way a pipeline, conduit, or other fixture;

6. Move, over the surface of a right-of-way or over a bridge, viaduct, or other structure maintained by the city, a vehicle or other object of size or weight prohibited by law or having other characteristics capable of damaging the right-of-way; or

7. Place a structure, wall, culvert, or similar encroachment, or make an excavation or embankment so as to endanger the normal usage of the right-of-way.

B. Oversized vehicle. Before a vehicle or object of weight, size, or characteristic prohibited by law without a permit is moved on a public right-of-way, a permit shall first be granted by the director as set forth in specifications adopted by council resolution.

C. No changes to permit. No changes may be made in the location, size, character, or duration of the encroachment except on written authorization by the director.

D. Exceptions. No permit is required for:

1. An officer or employee of the city in the discharge of his or her duties.

2. The continuing use or maintenance of encroachments installed by a public utility or for changes to them where the changes or additions require no excavation of the right-of-way.

3. Use of the public right-of-way where a special event permit has been issued under PHMC Chapter 6.20, and the use is consistent with the terms of the permit. (Ord. 864 § 3, 2012; 1991 code § 15-1.2)

11.05.030 Application.

A. The director is the officer charged with issuing an encroachment permit. The director shall prescribe and provide a regular form application for a permit required by this chapter. The application shall require the applicant’s name and address and the contractor’s name, licensee number and primary place of business, if the applicant proposes to employ a contractor, together with the detail necessary to establish the purpose and use, location, dimension and estimated dates of commencement and completion of the encroachment. The application form shall be completed and signed by the applicant and filed with the director.

B. The applicant shall file with the application a map, plat, sketch, diagram or similar exhibit, when required by the director, on which shall be plainly shown all information necessary to locate the proposed use or encroachment and the right and necessity of the applicant to cause an encroachment. (1991 code § 15-1.3)

11.05.040 Consent to work.

The applicant shall file with the application copies of the written order or consent to work which is required by the Public Utilities Commission, sanitary district, water district, or other public body having jurisdiction. The director may not issue a permit until the consent is obtained and evidence of it filed with the director. The permittee shall inform himself or herself of all state and federal laws and local ordinances and regulations which affect the permit. The applicant at all times shall comply with all such laws, ordinances, regulations, decisions and court orders, and shall protect and indemnify the city and its officers, agents and employees against claims or liability proximately caused by the violation of any law, ordinance, regulation, or order issued in accordance with law. (1991 code § 15-1.4)

11.05.050 Fees.

A. Fee amount. The schedule of fees are those established by the council by resolution. Before a permit is issued, the applicant shall deposit with the city cash or check for issuance of the permit, a fee for restoring the pavement, charges for field investigation, and the fee for necessary inspection, all in accordance with a schedule established by the council.

B. Billing in lieu of deposit. Each public utility and political subdivision, at the director’s option, may pay the charges as billed by the city instead of advance deposit.

C. Waiver. At his or her option, the director may waive the fee for: (1) a city-sponsored project; or (2) a project of the Diablo Vista Water District; or (3) an applicant who voluntarily complies with city notice to abate a nuisance, including sidewalk repair. (Ord. 744 § 1, 2000; 1991 code § 15-1.5)

11.05.060 Nontransferable.

A permit issued under this chapter is not transferable. The person making the encroachment shall obtain the permit and furnish the bond. (1991 code § 15-1.6)

11.05.070 Display of permits.

A. The permittee shall keep the permit at the site of work or in the cab of a vehicle when its movement on a public highway is involved. The permit must be shown to an authorized representative of the city on demand.

B. A permit issued for continuing use or maintenance of an encroachment may be kept at the place of business of the permittee, but shall be made available to an authorized representative of the city within a reasonable time after demand. (1991 code § 15-1.7)

11.05.080 Validity – Termination.

A permit is valid for one year from the date of issuance, unless the permit specifies otherwise, or unless sooner terminated by discontinuance of the use, removal of the encroachment, or termination of the permit by written order of the director. The director may terminate the permit by mailing a written order 30 days before the date of termination. (1991 code § 15-1.8)

11.05.090 Cash deposit or bond.

A. Cash deposit. Unless this subsection is waived in the permit and before a permit is effective, an applicant shall deposit with the city cash or a certified or cashier’s check in a sum to be fixed by the director as sufficient to reimburse the city for costs of restoring the right-of-way to its former condition, based on the schedule adopted by resolution of the council. An applicant may file a cash deposit on an annual basis in a sum estimated by the director as sufficient to cover his or her activities during any 12-month period.

B. Bond in lieu of cash deposit. Instead of the cash deposit prescribed by subsection A of this section, the applicant on approval by the director may file a cash deposit in the minimum sum established by the schedule adopted by the council. The balance of the sum fixed as sufficient to reimburse the city for restoring the right-of-way may be filed in the form of an approved surety bond issued by a company authorized to do a general surety business in the state.

C. Annual bond. Instead of a cash deposit, the applicant on approval by the director may annually file with the city an approved surety bond issued by a company authorized to do a general surety business in the state, in a sum fixed by the director as sufficient to reimburse the city for expenses in restoring the right-of-way to its former condition.

D. Additional bond or deposit. The city may require an additional bond or cash deposit at any time that evidence indicates that the amount of the bond or cash deposit previously made is insufficient to cover the cost of restoring the right-of-way to its former condition.

E. Compliance. The condition of the bond or cash deposit is that the permittee comply diligently and in good faith with this chapter and the terms and conditions of the permit.

F. Payment and release. The bond or cash deposit required shall be payable to the city. On satisfactory completion of all work authorized in the permit and fulfillment of all conditions of the permit, the council may release the bond or cash deposit on the expiration of 90 days. (1991 code § 15-1.9)

11.05.100 Commencement of work.

A. The permittee shall begin the work authorized by a permit within 90 days from date of issuance, unless a different period is stated in the permit. If the work or use is not begun within 90 days, or within the time stated in the permit, then the permit becomes void, unless before its expiration the time for beginning has been extended in writing by the director.

B. The permittee shall notify the director of the time of beginning work before beginning any work such as:

1. Excavation;

2. Construction of sidewalks, curbs, gutters, or driveway approaches;

3. Planting, trimming, or removing trees;

4. Placing an obstruction in the right-of-way. (1991 code § 15-1.10)

11.05.110 Completion of work.

A. Required – Cancellation. The permittee shall complete the work authorized by a permit within the time specified in the permit. If at any time the director finds that delay in beginning, prosecuting, or completing the work is due to lack of diligence by the permittee, he or she may cancel the permit and restore the right-of-way to its former condition. The permittee shall reimburse the city for all expenses incurred in restoring the right-of-way, plus 15% as administrative costs.

B. Notice. Unless this subsection is waived in the permit, the permittee shall notify the director when work is complete. Work is not complete until notice of completion is given.

C. Restoration and maintenance.

1. On completion of the work authorized by the permit or when required by the director, the permittee shall replace and restore the right-of-way as provided in this chapter and adopted specifications, or as directed by the director. The permittee shall remove all obstructions and material placed on the right-of-way and shall do any other work necessary to restore the right-of-way to a safe and usable condition.

2. After completion of the work, the permittee shall exercise reasonable care in inspecting and maintaining the area affected by the encroachment. On notice from the director, the permittee shall immediately repair any damage or nuisance in the right-of-way resulting from the work done. If the permittee fails to act promptly or if repairs or replacement are necessary before the permit can be notified or respond to notice, the city may perform the necessary work and charge the permittee the actual costs of labor and materials, plus 15% as administrative costs. Acceptance of the permit is an agreement to comply with this chapter. (1991 code § 15-1.11)

11.05.120 Conformance to specifications.

A. All encroachment repair work shall conform to specifications established by the city or in their absence to recognized standards of construction and approved practices.

B. Unless otherwise noted on the permit, all encroachment repair work performed on a right-of-way shall conform to the construction specifications contained in the current edition of the Standard Specifications of the State of California, issued by the Department of Public Works, Division of Highways, as may be amended by the city. (1991 code § 15-1.12)

11.05.130 Backfilling.

A. Specifications. Backfilling and compaction of an excavation shall meet specifications established by the city.

B. Storage of materials. A permittee may not store material within five feet of a public highway and shall remove excess earth materials from trenching or other operations from the pavement, traveled way, or shoulder as the trench is backfilled. (1991 code § 15-1.13)

11.05.140 Trees.

A. Planting and maintenance.

1. A person who desires to plant a tree in the right-of-way shall file an application with the city. The city shall provide the form. The application shall include an agreement by the applicant to maintain the tree in a neat, healthy and safe condition to the satisfaction of the city, and an agreement to remove the trees as directed by the city and to pay the cost of removal upon the permittee’s failure promptly to remove the trees as directed by the city. The application shall show the location and kind of tree to be planted.

2. A tree placed in the right-of-way shall be maintained by the permittee or his or her successor in interest or by some other interested party in a neat, healthy and safe condition to the satisfaction of the director and at no expense to the city. If the encroachment is not located and maintained as specified in this chapter, the director may direct the permittee to remove the encroachment and restore the right-of-way to its former condition at the expense of the permittee. If the permittee fails to remove the encroachment as directed, the director may remove it and collect the cost of removal from the permittee, together with costs and expenses in enforcing collection.

3. The director shall refuse a permit when the location or the nature of the growth above or below ground of the kind of tree proposed will impede or inconvenience public travel, disturb the right-of-way, interfere with the construction or maintenance of necessary facilities, or interfere with existing pipelines, utility installations, or other facilities within the right-of-way.

B. Trimming or removal.

1. Trimming or removal of trees is permitted only when authorized by permit.

2. When a tree is removed under authority of a permit, the permittee shall take out the entire stump for a distance of at least two feet below the ground surface and shall backfill and tamp the hole. He or she shall remove all debris from the site and restore the right-of-way to its former condition. (1991 code § 15-1.14)

11.05.150 Hedges, plantings and fences.

A. Restrictions.

1. No person may plant or maintain a hedge, shrub or other planting, or fence or similar structure, except as provided in PHMC § 11.05.160, in a right-of-way without a permit.

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

B. Maintenance. The permittee or property owner shall maintain the hedge, shrub and other planting, or fence or similar structure used for landscaping purposes in a neat and orderly condition at all times. If the encroachment is not so maintained or is located in violation of subsection A of this section, the director may order the permittee or property owner to remove the encroachment and restore the right-of-way to its former condition at the expense of the permittee or property owner. (1991 code § 15-1.15)

11.05.160 Lawn or ground cover.

A. It is lawful for a person to plant and maintain a lawn or similar ground cover of grass of a type not prohibited by law within the right-of-way without a written permit. However, the lawn or ground cover may not extend into the traveled way nor into the drainage ditches, gutter, or other drainage facilities.

B. The general public may not be denied the use of a planted area for pedestrian travel or other lawful use. The city may use the planted area for any purpose and may issue a permit to an applicant to go on the planted area to perform work or otherwise encroach under this chapter. If the lawn or ground cover is damaged or disturbed in the course of an authorized encroachment, the permittee is responsible for the replacement unless the permit specifically states otherwise. (1991 code § 15-1.16)

11.05.170 Mailboxes.

Each mailbox shall be placed in accordance with the rules and regulations of the United States Post Office Department. However, no person may place a box in the road right-of-way in a manner which endangers the safety of the traveling public. A permit is not required for placing a mailbox. (1991 code § 15-1.17)

11.05.180 Markings on streets, curbs and sidewalks.

No person, without first obtaining a permit, shall solicit on a commercial or donation basis to place or maintain a number, figure, letter, carving, drawing, design, or other marking on a street, sidewalk, or curb. A temporary marking to identify survey or construction locations is not subject to this chapter. (1991 code § 15-1.18)

11.05.190 Monuments.

A monument of granite, concrete, iron, or other lasting material set for the purpose of locating or preserving the lines or elevation of a public highway or right-of-way, property subdivision, or a precise survey point or reference point shall not be removed or disturbed without permission from the director. Replacement of removed or disturbed monuments is at the expense of the permittee. (1991 code § 15-1.19)

11.05.200 Movement of vehicles.

A. When authorized to move a vehicle or load of size, weight, or other characteristic generally prohibited by law, the permittee shall comply with the general law regulating travel over a road or highway, including posted signs which limit speed or direction of travel, weight which may be placed on a structure, width or height that may be moved, and other restrictions or control of travel on a road or highway.

B. The permittee shall follow the practice and procedure necessary to make safe and convenient the travel of the general public and to keep safe and preserve the road over and on which movement is made. A violation of this section automatically cancels the permit issued to the permittee. (1991 code § 15-1.20)

11.05.210 Pipes and conduits.

A. Minimum cover. The minimum cover over pipes or conduits larger than two and one-half inches installed within the right-of-way is three feet of earth or imported material. Within the public highway, the minimum cover is measured from the existing or planned surface. The director may permit installation of pipes or conduits where three feet of cover cannot be provided because of topography, structures, or other engineering necessity.

B. Beneath pavement. The permittee shall jack, bore or drive utility, service and other small diameter pipes or rigid conduits underneath a paved surface. The permittee may not cut or disturb the paved surface of a road unless specifically authorized in the permit. No tunneling is permitted except as set forth in the permit. (1991 code § 15-1.21)

11.05.220 Drainage.

If the work authorized in a permit interferes with the established drainage, the permittee shall provide for proper drainage approved by the director. (1991 code § 15-1.22)

11.05.230 Poles or obstructions.

When the location or position of a pole or obstruction makes accentuation of its visibility to vehicular traffic necessary, the director may require that the pole or obstruction be painted or equipped with reflectors or other aids to visibility prescribed or authorized by the Public Utilities Commission or the Department of Public Works of the State of California, at the expense of the permittee. (1991 code § 15-1.23)

11.05.240 Poles and transmission line carriers.

A. Clearances and types in the construction of poles and transmission line carriers shall meet rules, regulations and orders of the Public Utilities Commission and other public agencies having jurisdiction.

B. No guy wires may be attached to trees without specific authorization in the permit. Guy wires may not be attached to girdle the tree or interfere with its growth. Guy wires may not be below the minimum elevation above the ground prescribed in the rules, orders and regulations of the Public Utilities Commission.

C. The permittee shall remove and keep clear all vegetation on the right-of-way within a radius of at least five feet of poles when ordered by the director.

D. When a pole, guy, stub, or similar timber is removed and not replaced, the entire length shall be removed from the ground and the hole backfilled and compacted. (1991 code § 15-1.24)

11.05.250 Relocation or removal.

If future construction or maintenance work on a public right-of-way requires the relocation or removal of installations or encroachments in the right-of-way, the permittee owning or maintaining the installations or encroachments shall remove them at his or her sole expense. When removal is required, the director shall give the permittee a written demand specifying the place of relocation, or that the installations or encroachments must be removed from the right-of-way, and specifying in the demand a reasonable time within which the encroachment must be removed or relocated. If the permittee fails to comply with instructions, the city may remove or relocate the encroachment at the expense of the permittee. (1991 code § 15-1.25)

11.05.260 Safety devices and measures.

A. In the conduct of the work of an encroachment authorized by a permit, the permittee shall provide and maintain the lights, barriers, warning signs, patrols, watchmen and other safeguards necessary to protect the traveling public. An omission to specify in the permit what protective measures or devices must be provided does not excuse the permittee from complying with all regulations and ordinances for adequately protecting the safety of the traveling public. If the director finds that suitable safeguards are not provided, the city may provide the safeguards considered necessary or may cancel the permit and restore the right-of-way to its former condition, all at the expense of the permittee.

B. A permittee making an excavation or leaving any obstruction on the right-of-way shall maintain lights at each end of the excavation or obstruction, at not more than 50-foot intervals along the excavation or obstruction, from one-half hour before sunset of each day to one-half hour after sunrise on the next day, until the excavation is refilled, or the obstruction removed and the right-of-way made safe for use. In addition, reflectorized warning signs conforming to the requirements of the California Division of Highways shall be placed 200 and 400 feet from each excavation or obstruction in a position adequate to warn public traffic.

C. The warning signs, lights and other safety devices shall conform to the requirements of state law and regulations. (1991 code § 15-1.26)

11.05.270 Interference with use.

The permittee shall plan and execute the work to cause the least interference with the safe and convenient travel of the general public. At no time shall a public highway be closed or its use denied to the general public without the written permission of the director, nor shall use of private property be interfered with unreasonably without the consent of the owner. (1991 code § 15-1.27)

11.05.280 Right of lawful use.

A permit granted under this chapter does not annul the right of the city or a person entitled to use that part of the public right-of-way for a purpose for which it may be lawfully used. No part of a public highway may be unduly obstructed at any time. (1991 code § 15-1.28)

11.05.290 Exceptions.

Repealed by Ord. 864. (1991 code § 15-1.29)

11.05.300 Emergency work authorization.

This chapter does not prevent a person from performing emergency maintenance on a pipe or conduit lawfully on or under a right-of-way, or from making an emergency use or encroachment necessary to preserve life or property when an urgent necessity arises. However, the person making an emergency use or encroachment of a right-of-way shall apply for a written permit within 10 calendar days, beginning with the first business day the city offices open. A person requiring an emergency use or encroachment shall first notify the director. During the hours the city offices are closed, notice shall be given to the police department. (1991 code § 15-1.30)

11.05.310 Sign encroaching over a street declared nuisance.

A. A sign which encroaches upon a public street or right-of-way without a permit is declared to be a public nuisance and the director is directed to remove each sign which exists in violation of this section. The director may, but is not required to, give notice to the owner of the sign. Upon removal, the city shall store the sign and at the expiration of 15 days after removal, if the sign is not recovered, the sign is considered abandoned and the city may dispose of it without liability. The city may impose a service charge in such amount fixed by resolution to defray the costs of removal and storage. If the chief building official removes a sign, the owner of the sign may recover it by paying the service charge.

B. Each person who erects a sign subject to removal under this section is jointly and severally liable for the service charge. The city has a lien upon the sign for the cost of removal and may keep possession of the sign until the owner redeems it by paying the service charge. (Amended during 2005 recodification; 1991 code § 15-1.31)