CHAPTER 7
ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY
ARTICLE 1 REMOVAL OF ENCROACHMENTS
SECTION:
§5602: Summary Removal By City
§5600 DEFINITIONS
As used in this chapter, the following terms shall have the following meanings:
ENCROACHMENT: Includes any structure or object of any kind or character placed, without the authority of law, either in, under or over any public right of way, including vehicles or equipment designed to operate from a fixed or stationary position.
PUBLIC RIGHT OF WAY: Includes all or any part of the entire width of a right of way granted to the city, whether in fee or as an easement, for sidewalk, highway, roadway, drainage, utility or other public purposes, whether or not such entire area is actually used for such purposes. (Ord. 860, §1, adopted 1986; Ord. 1107, §1, adopted 2008)
§5601 NOTICE TO REMOVE
If any encroachment exists in, under or over any public right of way, and is not encroaching in accordance with article 2 of this chapter, the city may require the removal of such encroachment in the manner provided in this chapter.
Notice shall be given to the owner, occupant or person in possession of the encroachment, or to any other person causing or suffering the encroachment to exist, by serving upon any such person a notice containing a demand for the immediate removal of such encroachment from within such public right of way. Any such notice shall describe the encroachment complained of with reasonable certainty as to its character and location.
The notice shall state that the encroachment must be permanently removed from the public right of way within five (5) days from the date of the notice. If not removed within said five (5) days, city personnel will remove the encroachment. The costs of its removal and its storage or other disposition shall be imposed on the recipient of the notice. If the recipient disputes the city’s right to remove the encroachment, he or she must, within the same five (5) day period, file a written protest with the city manager. The city manager’s decision shall be rendered within two (2) days of its receipt and shall be final for the city. The party opposing the removal shall have the right to present written or oral testimony or argument in support of his or her protest and the city manager shall base his or her decision on the evidence and argument presented prior to his or her decision.
In lieu of personal service upon such person, service of such notice may also be made by registered mail and by posting, for a period of five (5) days, a copy of the notice on the encroachment described in the notice. In the case of an owner, occupant or person in possession, who is not present in the city, the notice may be given to his agent in lieu of service by mailing and posting.
In the case of a business, notice may be delivered to a person apparently in charge of the business premises during normal business hours. (Ord. 860, §1, adopted 1986; Ord. 1107, §1, adopted 2008)
§5602 SUMMARY REMOVAL BY CITY
The city may immediately remove from any public right of way any encroachment which:
A. Is not removed, or the removal of which is not commenced and thereafter diligently prosecuted, prior to the expiration of five (5) days from and after the date of the notice required by section 5601 of this article; or
B. Obstructs or prevents the use of such right of way by the public and presents a hazard that cannot be allowed to continue for a period of five (5) days; or
C. Consists of refuse; or
D. The ownership of which cannot be readily determined.
Upon such removal, the city, at its option, may: 1) return the encroachment to its owner, 2) store it at the owner’s expense, in which case the city shall have a lien on the encroachment equal to its reasonable storage costs, or 3) dispose of it in any other manner it deems appropriate. (Ord. 860, §1, adopted 1986; Ord. 1107, §1, adopted 2008)
§5603 FAILURE TO COMPLY
The city may remove any encroachment on the failure of the owner to comply with a notice or demand of the city under the provisions of section 5601 of this article and shall have an action to recover the expense of such removal, costs and expenses of suit, including reasonable attorney fees and, in addition thereto, the sum of one hundred dollars ($100.00) for each day such encroachment remains after the expiration of five (5) days from the date of the notice. (Ord. 860, §1, adopted 1986; Ord. 1107, §1, adopted 2008)
§5604 ABATEMENT ACTION
If the owner, occupant, or person in possession of the encroachment, or person causing or suffering the encroachment to exist, or the agent of any of them, disputes or denies the existence of the encroachment, or refuses to remove or permit the removal of the encroachment, the city may commence, in any court of competent jurisdiction, an action to abate the encroachment as a public nuisance. If judgment is recovered by the city, said judgment shall include, in addition to adjudging the encroachment a nuisance and abating it, statutory damages of one hundred dollars ($100.00) for each day such encroachment remains after the service of the notice in the manner provided in section 5601 of this article, and shall also include the city’s costs and expenses incurred in such action, including reasonable attorney fees. (Ord. 860, §1, adopted 1986; Ord. 1107, §1, adopted 2008)