Chapter 12.118
CONSTRUCTION IN PUBLIC RIGHT-OF-WAY
Sections:
12.118.060 Minimum standards—Special conditions.
12.118.070 Asphalt pavement restoration—Special conditions.
12.118.080 Violations, failure to comply with permit, work stoppage, revocation of permit, damages.
12.118.100 Revocation of permit—Appeal.
12.118.115 Indemnification/hold harmless.
12.118.120 Liability insurance.
12.118.130 New street and recent overlay.
12.118.010 Definitions.
The following terms when used in this chapter shall be construed to mean as follows:
A. “Alley” means a duly dedicated public alley;
B. “Person or applicant” means the plural as well as the singular, and shall include any firm, partnership, association, group, corporation, public or private utility or organization of any kind;
C. “Sidewalk” means a concrete or asphalt walk for pedestrian use outside the building lot line of any property, owned or constructed for use by the general public;
D. “Street” means a street or roadway designated for public use;
E. “Right-of-way” means all real property owned or held by the city in fee, or by way of easement, or dedicated to the public and located within the city, and used or intended to be used as a street, alley, sidewalk, public way or easement for public or private utilities, whether developed or undeveloped;
F. “City engineer” means the city engineer or their duly authorized designee;
G. “Planning director” means the director or his duly authorized designee;
H. “City utilities” means utilities owned by the city of Battle Ground;
I. “Public utilities” means a public utility that provides service under the rules and regulations on file with the Public Service Commission of Washington State. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 1, 2003)
12.118.020 Permit required.
A right-of-way permit is required before any person may alter, construct, repair, remove, excavate, place, obstruct, damage, or disturb any structure, utility, facility, or improvement located in the public right-of-way; or commence any other activity that interferes with the free use of the public right-of-way. A blanket annual right-of-way permit for certain activities may be obtained by utilities operating with a franchise granted by the city. The provisions for annual right-of-way permits are included in the annual right-of-way permit procedures. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 2, 2003)
12.118.030 Exemptions.
A right-of-way permit shall not be required for the activities listed below. Exemption from the permitting requirements of this section shall not constitute approval for any work done in violation of this code or any other city code.
A. Construction, improvement, maintenance, or repair of facilities located in right-of-way when performed by the city or a contractor under contract with the city;
B. Work allowed and approved by other permits issued by the city;
C. Any activity that the city engineer determines does not have the potential to significantly impact the right-of-way or the free use thereof. Any exemption granted under this section shall be issued in writing; and
D. Emergency repairs to existing facilities; the city must be provided notice of such repairs as soon as it is possible.
E. Permit exemption does not exclude the person or entity from meeting the standards and practices contained in BGMC 12.118.060(A) and (C), 12.118.070, 12.118.110, 12.118.115, 12.118.120, and 12.118.130. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 3, 2003)
12.118.040 Application.
A right-of-way permit required pursuant to this chapter shall be issued by the city engineer upon receipt of a written application, payment of the required permit fee, and the applicant providing insurance and financial guarantees as required by this chapter. A permit application that does not comply with this section shall be ineligible for review. The application shall be on a form provided by the city engineer and shall require the following minimum information:
A. The name and address of the applicant, and if the applicant is a corporation or similar entity, the name and address of its representative;
B. A description of the intended work to be performed, the reason for the work, the area where the proposed work is to be performed, the anticipated commencement and ending construction date, and estimated cost;
C. Plans for the proposed work shall be submitted in a format satisfactory to the city engineer and shall be based upon the complexity of the work to be conducted. In the event of minor work, as determined by the city engineer, a sketch in a format satisfactory to the city engineer shall be submitted. Wherever applicable, the most recent standard plans or details adopted by the city, the city’s construction requirements, and the current edition of the WSDOT Standard Specification for Road, Bridge and Municipal Construction shall be used. The plans shall include as applicable, but not be limited to, computation data, vicinity map, plan and profile, traffic control plan, erosion control plan, planting plan, utility plan, pavement and site restoration plan. If the city engineer determines that the nature of the work applied for is such that an engineered design is necessary to obtain compliance with this code, the submittal documents shall be prepared by an engineer licensed in the state of Washington;
D. The application shall be signed by the applicant, or the applicant’s authorized agent; and
E. Give such other data and information as may reasonably be required by the city engineer to carry out the objectives of this code and other provisions of the BGMC. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 4, 2003)
12.118.045 Permit issuance.
The application and submittal documents shall be reviewed by the city engineer. Such documents may also be reviewed by other departments of the city, or independent consultants if determined necessary by the city engineer. If the city engineer finds that the work described in an application for a permit and the submittal documents conform to this code, other provisions of the BGMC, other pertinent laws and ordinances, and the appropriate fees have been paid, the city engineer shall issue a permit to the applicant. The city engineer may attach conditions necessary to ensure compliance with this code, other provisions of the BGMC, and city ordinances. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015)
12.118.050 Permit fee.
Fees for permits issued pursuant to this chapter shall be per the currently adopted fee schedule.
Fees are nonrefundable and payable at the time of application. The fees for permits under this chapter shall not be deemed to be fees for use of streets, alleys, sidewalks, or other public ways. The fees imposed pursuant to this chapter are for the sole purpose of defraying the costs connected with the administration of this chapter and to pay the cost of inspections necessitated by work performed under the terms of this chapter.
Any owners of real estate repairing or engaging another to repair the sidewalk or planters abutting property they own shall be exempt from the permit fee. Exemption from the fee does not relieve the owner from the requirement to obtain a right-of-way permit. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 09-08 § 8, 2009: Ord. 03-014 § 5, 2003)
12.118.060 Minimum standards—Special conditions.
A. All work to be performed in accordance with this chapter shall conform to the minimum requirements of the current edition of the WSDOT Standard Specifications for Road, Bridge and Municipal Construction, city municipal construction codes, city standard details, city construction requirements and specifications contained herein. In addition, the city engineer, in order to maintain the integrity of existing improvements and to provide for public health, safety, and welfare, may impose such additional terms upon such permits as deemed necessary. Such conditions may be modified, if conditions warrant, during the life of such permit.
B. The permit holder is required to notify the city at the department of public works office no later than 8:30 a.m. two business days before any permit work begins, at the address and/or telephone numbers noted on the permit form.
1. Failure to notify the city prior to commencing work is a violation of the permit. In the event of a violation, the permit holder shall be subject to revocation of the permit or other enforcement listed in BGMC Title 20 as determined by the city engineer.
2. It shall be the responsibility of the permit holder to be prepared for inspection by city personnel. In the event a permit holder calls for an inspection more than twice without site preparation completed, which may include, but not be limited to, traffic control, forming or shoring, material on hand, or any other site condition that renders the inspection incomplete will be deemed a violation of the permit. A reinspection fee of one-half of the initial permit fee will be assessed, but not to exceed seventy-five dollars, for every reinspection thereafter.
C. Traffic control and detour plans shall be required for all work within the right-of-way, as determined by the city engineer, including maintenance, and shall conform to the most recently adopted Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). Traffic control plans must be completed by a licensed engineer in the state of Washington, a certified traffic control supervisor in the state of Washington, or be a standard plan acceptable to the city engineer. A traffic control plan shall be submitted and approved with the right-of-way permit. Approval for a full street closure shall only be granted if special circumstances exist as determined by the city engineer. Any construction activity conducted in the right-of-way that is found to be in violation of the MUTCD or the approved traffic control plan will be issued a stop work order and the permit for that operation may be revoked. In the event of revocation, the city may use its own forces or a private contractor to restore the area. All restoration costs will be billed to the permit holder. If the permit holder wishes to complete the project, they will be required to apply for another permit. The city engineer may modify approved traffic control plans at any time, including, but not limited to, requiring a closed road to be opened to traffic.
D. Hours of Operations. The hours for working within the roadway for asphalt overlays or trench restoration shall be directed by the permit conditions.
E. Compliance. All public and private utilities and persons wanting to construct in city right-of-way shall follow these procedures. All right-of-way permits will be reviewed and conditioned in accordance with this chapter.
F. A permit shall expire after ninety days if the work assigned to that permit has not been completed. Any permit fees shall not be refunded.
G. Timely Completion of Work. The applicant shall complete the work and secure the city’s acceptance for the work prior to permit expiration. Once work is started the applicant shall continuously work on said project until the street has been restored to preconstruction conditions. Failure to do so may lead to revocation of permit or other enforcement measures as listed in BGMC Title 20.
H. Applicant is responsible for cleanup of debris, materials, and other items generated by undertaking the work approved under the permit. Applicant is responsible for repairs to facilities that are damaged during said work. Applicant is responsible for maintaining the street in a drivable condition, including, but not limited to, keeping the surface free of potholes, on a daily basis. Failure to maintain the street in an acceptable condition may lead to revocation of permit or other enforcement measures as listed in BGMC Title 20.
I. Signage. The contractor shall place a sign or signs in locations as determined by the city engineer that contain the contractor’s name and a phone number where a contractor employee is reachable twenty-four hours a day, seven days a week for street users to address street condition concerns. Signs are required in the following situations:
1. Any time there will be a full road closure of any length of time.
2. Any time street users will need to travel over gravel where construction will last more than a day.
3. Any other situations as determined by the city engineer.
Failure to be responsive to phone calls may lead to revocation of permit or other enforcement measures as listed in BGMC Title 20.
J. Notice. Any time there will be a full street closure, a partial street closure lasting more than a week, or other situations as determined by the city engineer the contractor will be responsible for the following:
1. Placement of portable changeable message board signs, indicating the street to be closed, the type of closure, full or partial, and the duration of the closure in locations determined by the city engineer. Signs must be functioning, with correct information, a minimum of one week prior to the closure.
Contractor is responsible for notifying nearby property owners of said closure. The city engineer will determine the method and the scope of the notification. Notice will include the time frame for the closure, contractor name, and twenty-four hours a day, seven days a week contact information for the contractor. (Ord. 23-08 § 2, 2023; Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 16-12 § 2 (part), 2016; Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 6, 2003)
12.118.065 Permit validity.
A. Issuing or granting a permit or approving plans or other submittal documents shall not be construed to be a permit for, or approval of, any violation of this code or other city ordinances.
B. Permit issuance shall not prevent the city engineer from:
1. Requiring the correction of errors in the plans, specifications, and other data; or
2. Preventing construction activities from being carried out in violation of this code, other provisions of the BGMC, or city ordinances.
C. Permit issuance shall not be construed as approval for any additional work beyond the scope of the permit. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015)
12.118.070 Asphalt pavement restoration—Special conditions.
Provisions for and restoration of facilities are found in the city of Battle Ground’s standard details except as provided herein:
On streets without curb, any construction that damages the edge of existing pavement, a minimum three-foot-wide section of pavement will be removed and replaced for the full length of the damaged section and two feet beyond the beginning and ending point of the damaged pavement edge. The section shall be repaved per the city’s standard details. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 7, 2003)
12.118.080 Violations, failure to comply with permit, work stoppage, revocation of permit, damages.
Failure to obtain a permit is a violation of this code and may be cause for withholding or withdrawing approval of project plans, revocation of a permit, suspension of inspections, forfeiture of financial guarantees submitted to the city, refusal of the city to accept the work or other enforcement action under this code or other provisions of the BGMC. It shall be unlawful for any work that requires a permit to be undertaken without a permit. Any permit application submitted for work commenced prior to the application submittal shall be subject to a charge equal to double the applicable fees plus the actual cost for any city investigation undertaken in conjunction with the consideration of the permit.
In the event that a permit holder should, in the performance of work under said permit, fail to comply with the terms thereof, or fail to perform the work in accordance with such terms, they shall be in violation, and all current or revised code enforcement procedures and penalties as set forth in Chapter 20.100 BGMC shall apply. In the event that makes it necessary for the city to perform work to correct defective work or materials of any permit holder after revocation of such permit, the city shall have the right to recover from such permit holder the cost of work and materials performed or used by the city.
In the event that any work performed pursuant to this chapter should be improperly performed, or should become defective within two years after termination of the permit or the conclusion of the work, the person to whom the permit was issued shall be responsible for correcting such defective work, or paying the cost of such correction. Defective work shall include, but is not limited to, any and all settlement within the areas of excavation or embankment, or pavement and concrete failure. Upon notification of the existence of such defective work, the holder of such a permit shall take immediate steps to remedy such defective work.
Any person who shall violate or fail to comply with any of the provisions of this chapter, or who shall counsel, aid or abet any such violation or failure to comply, shall be deemed to have committed a civil infraction, and shall be fined under the standard procedures, as set forth in Chapter 20.100 BGMC. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 8, 2003)
12.118.090 Enforcement.
The city engineer is authorized to enforce the provisions of this chapter utilizing the remedies and procedures under BGMC Title 20 or as listed above. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 9, 2003)
12.118.100 Revocation of permit—Appeal.
Any action of the city engineer revoking a permit issued pursuant to this chapter shall be appealable to the hearing examiner as stated in Chapter 17.200 BGMC. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 03-014 § 10, 2003)
12.118.110 Surety bond.
Before a right-of-way permit as herein provided is issued, the applicant shall deposit with the city a surety bond, or other approved surety, in the amount of five thousand dollars, or an amount equal to one hundred twenty-five percent of the construction costs, whichever is greater, payable to the city. The surety must be:
A. With a good and sufficient surety authorized to transact business in the state of Washington;
B. Satisfactory to the city attorney in form and substance; and
C. Said surety shall be conditioned that the permittee shall restore all right-of-way per the city standard details and construction requirements. Any street cuts or openings shall be restored per BGMC 12.118.070 or 12.118.130 and warranted for two years after the work has been completed. Any settlement or failure of the surface within two years shall be deemed conclusive evidence of defective work by the permittee.
In cases where there is no risk to the city’s right-of-way, as determined by the city engineer, the city engineer may waive the requirement for a surety.
Any owners of real estate repairing the sidewalk or planters, abutting property they own, and not engaging another to repair said sidewalk or planters shall not be required to give such bond.
In the event of any suit or claim against the city by reason of the negligence or default of the permittee, upon the city’s giving written notice to the permittee of such suit or claim, any final judgment against the city requiring it to pay for such damage shall be conclusive upon the permittee and his or her surety. (Ord. 23-08 § 2, 2023; Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 11, 2003)
12.118.115 Indemnification/hold harmless.
Included in the permit application is the following language which the applicant for a permit must agree to: The applicant shall defend, indemnify and hold the city, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits, including attorney fees, arising out of or in connection with activities or operation performed by the applicant or on the applicant’s behalf out of issuance of this permit, except for injuries and damages caused by the sole negligence of the city. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015)
12.118.120 Liability insurance.
A. The applicant shall procure, prior to issuance of a permit, and maintain for the duration of the permit, insurance against claims for injuries to persons or damage to property which may arise from or in connection with operations or activities performed by or on the applicant’s behalf with the issuance of this permit. As approved through the city’s insurance authority or carrier at the time the permit is issued and noted on the permit.
B. Homeowners doing work to sidewalk or planters abutting property that they own, as a substitute to the requirements above, may provide evidence to the city that they possess homeowners’ insurance that provides adequate coverage and protection. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 16-12 § 2 (part), 2016: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 12, 2003)
12.118.130 New street and recent overlay.
Whenever a new street is completed, or an overlay of an existing street is completed, a five-year moratorium on pavement trenching shall be applied. Periodic seal coats or overlays less than one-and-one-half inch in thickness do not constitute a new street or overlay. It shall be the responsibility of each property owner or public utility to design and construct any utility improvements as deemed necessary, prior to street reconstruction or overlay. Any work performed shall comply with the current version of WSDOT Standard Specifications for Road, Bridge and Municipal Construction, city standard details, city construction requirements, specifications contained herein, and all plans approved by the city engineer. A right-of-way permit will be required before construction of utilities.
Under certain compelling circumstances, pavement trenching may be allowed provided a more reasonable alternative does not exist. “Compelling circumstances” can be a bona fide emergency where a utility system has failed or some procedure is required where no other reasonable alternative for service delivery exists. Inadequate advance planning is not considered a compelling circumstance.
Whenever a compelling circumstance exists in the mind of a utility operator it shall apply for a permit to undertake the desired procedure. The city engineer must agree with the compelling nature thereof. In that event, the utility shall comply with one of the following two restoration options as directed by the city engineer:
A. Option No. 1. This option applies to street crossings and/or longitudinal trenches and requires milling off two inches of existing pavement and the resurfacing of the entire roadway or vehicle lane impacted by the trenching. Once the trench work is completed and the trench restored per standard, the entire roadway (or affected lane, as a minimum) will be ground/milled a depth of two inches for eight feet beyond each end of the trench excavation. The section will be repaved per the city standard details.
B. Option No. 2. This option applies to crossings and/or longitudinal trenches on narrow streets where a partial pavement milling and complete overlay can be substituted for Option No. 1 above.
Once the trench work is completed and the trench restored per standard, the affected roadway shall be milled to within six feet of each curb or gutter line on both sides of the roadway for eight feet beyond each end of the trench section. The section will be repaved per the city standard details. (Ord. 18-06 § 3 (part), 2018: Ord. 17-04 § 3 (part), 2017: Ord. 15-04 § 13 (part), 2015: Ord. 03-014 § 13, 2003)