Chapter 12.122
STREET USE AND ENCROACHMENT
Sections:
12.122.010 Purpose.
To protect public access and use of city rights-of-way, easements and other public thoroughfares. To establish methods of managing and controlling private use of public streets, roads, alleys and easements. (Ord. 07-06 § 1, 2007)
12.122.030 Definitions.
“Community development director” means the city of Battle Ground community development director or designee.
“Encroachment” means to construct, erect or maintain in, over or under any public place, right-of-way, easement, roadway, parking strip and/or sidewalk, including the airspace above them, any structures permanent in nature, including, but not limited to, building extension, marquee, fence, retaining wall or any other building or structure.
“Public works director” means the city of Battle Ground public works director or designee.
“Temporary in nature,” in reference to street uses, means not having or requiring permanent attachment to the ground, or involving structures which have no required permanent attachment to the ground.
“Use” means to place or maintain in, over or under any public place, right-of-way, roadway, parking strip and/or sidewalk, including the airspace above them, any temporary or movable object. (Ord. 07-06 § 2, 2007)
12.122.040 Permits required.
A. No person shall use or encroach upon any public right-of-way, easement or public property without obtaining a permit from the community development or public works director.
1. Encroachments. A right-of-way permit is required to encroach upon any portion of city public space, right-of-way or easement area with permanent structures.
2. Street Uses. A right-of-way permit is required to use any portion of public space or city right-of-way for objects which are temporary in nature.
3. Fences. The installation of fences across city utility easements, if the city’s easement is not for vehicular access and a point of access (e.g., gate) is provided to allow the city a point of entry to the easement area. Fences shall be permitted in accordance with this chapter and the provisions of this code prior to their installation.
4. Shipping and Cargo Containers. Shipping and cargo containers, including dumpsters and other similar storage or refuse containers, are prohibited on any portion of city public space, right-of-way or easement area unless an encroachment permit is granted.
5. Nothing in this section shall be interpreted to prohibit the parking of a properly licensed vehicle in a legally permissible manner and areas or the normal installation and maintenance of landscaping.
6. Nothing herein shall be interpreted to permit the base or ground support for any sign to be located upon or attached to the ground within the public right-of-way, easement or public property.
B. Exemptions. No permit shall be required under this section for any waste material receptacle used in conjunction with a properly issued demolition permit or remodeling permit or for a period of seven days following a fire or other casualty causing severe damage to the buildings adjacent to the right-of-way or for a period of seven days for the removal of debris caused by a natural catastrophe such as a windstorm or rainstorm. (Ord. 09-08 § 1, 2009: Ord. 07-06 § 3, 2007)
12.122.050 Applications.
Right-of-way permit applications for street use or encroachment shall contain, in addition to the information required under any other applicable city code, the following information:
A. Street Uses.
1. Certificate of insurance.
2. Complete right-of-way permit application.
B. Encroachments.
1. Site plan, to be recorded with Clark County, clearly showing proposed encroachment, private property lines, all existing structures and driveways, easements and/or public property (developed or undeveloped).
2. Legal description, including copies of all recorded easements on the property.
3. Elevation view or side view of the proposed encroachment.
4. Ownership. Evidence showing the applicant to be the agent record owner of the property immediately adjoining the public place or right-of-way.
5. Certificate of insurance.
6. Complete right-of-way permit application.
7. Complete encroachment agreement, to be recorded with Clark County.
C. Such other information as the public works and community development department director or designee shall designate.
D. The encroachment agreement shall require prompt removal of the encroachment by the applicant at his/her/its expense upon reasonable demand by the public works director and be legally adequate for recording in the land records of Clark County and the chain of title of the applicant’s property. Such encroachment agreements may be executed as acknowledged on behalf of the city by the public works director and recorded by the city clerk following approval as to form by the city attorney.
E. Right-of-way permits shall be processed as a Type I land use action pursuant to Chapter 17.200 BGMC. When associated with other land use actions of different types, right-of-way permits shall be processed concurrently with the underlying land use action. (Ord. 07-06 § 4, 2007)
12.122.060 Review.
A. Issuance by Community Development or Public Works Director. The community development or public works director or their respective designees may administratively, without hearing, approve a street use or encroachment permit if:
1. The proposal will not unreasonably interfere with the rights of the public to use the right-of-way for its intended purpose, and:
a. No portion of the public right-of-way designed and intended for vehicular traffic or parking shall be permanently occupied;
b. Requirements of the International Building Code, including but not limited to all provisions relating to disabled accessibility and barrier-free design requirements shall be met;
c. Adequate compensation has been paid for use of the public right-of-way;
2. The proposal (if for an encroachment permit) either benefits the public interest, safety or convenience (e.g., supports or protects the city street, reduces pedestrian hazards) or is an accessory structure such as a fence normally associated with residential use of the property and fully complies with the requirements of subsections (B)(1) through (3) of this section.
B. Bay Windows, Decks, and Related Architectural Features. In an effort to allow for more creative designs and a better overall appearance in commercial areas, architectural features not included in habitable floor space may encroach into the public right-of-way within the central business district or any other zone in which no setback from the lot line is required, subject to the following requirements:
1. All conditions and requirements set forth in this chapter have been met and adequate compensation has been paid;
2. The encroachment shall not occur over alleys;
3. The building encroachment shall not project more than two feet (twenty-four inches) into the right-of-way;
4. The encroachment shall provide for a minimum clearance height of eight feet over any pedestrian right-of-way and a minimum clearance height of eleven feet over any vehicular right-of-way, whichever is greater;
5. The encroachment shall not interfere nor create unusual maintenance issues with street lights, signals and other traffic control devices.
C. Appeal. The decision of the community development or public works director, or their respective designees, may be appealed to the hearing examiner; provided, however, that the establishment of compensation for use of the public right-of-way is a legislative decision of the city council and is not subject to review by the examiner.
D. Insurance Requirement. When the application is for use or encroachment onto a public right-of-way including, but not limited to, streets, roads, alleys, trails, sidewalks, bike paths, pedestrian easements, and any other easement intended for the use of the public, the applicant will be required to provide and continually maintain during the term of the permit a certificate of insurance naming the city as an additional insured, with respect to liability and providing that it shall be primary as to any other policy of insurance. The policy must contain the additional insured statement, coverage amounts and cancellation notification indicated on the sample insurance form provided by the city. In addition, the applicant shall sign a covenant to hold harmless and indemnify the city for any hazard which may result from the use of the right-of-way, which will be recorded and run with the land in a form approved by the city attorney. (Ord. 07-06 § 5, 2007)
12.122.065 Revocation.*
A. Except as provided below, all permits approved under this chapter shall be temporary, shall vest no permanent right and shall be issued and may in any case be revoked at the sole discretion of the city upon thirty days’ notice, or without notice, in the event any such use or occupation shall become dangerous; any structure or obstruction so permitted shall become insecure or unsafe; shall become a public nuisance; or shall not be constructed, maintained or used in accordance with the provisions of this chapter. The determination by the community development director that a structure is dangerous, insecure, unsafe, a nuisance or has not been constructed, used or maintained in accord with this chapter shall be conclusive. Permits shall also be revoked if, following written notice of the lapse of an insurance policy required to be maintained, the permittee fails to supply a valid certificate of insurance.
B. If any such structure, obstruction, use or occupancy is not discontinued on notice to do so by the city engineer and within the time period designated, the city engineer may remove any structure or obstruction, or make such repairs upon the structure or obstruction as may be necessary to render the same secure and safe, at the expense of the permittee, or his successor, and such expense may be recorded as a lien and otherwise collected in the manner provided by law. (Ord. 07-06 § 6, 2007)
* Code reviser’s note: Ordinance 07-06 adds the provisions of this section as Section 12.122.060. The section has been editorially renumbered to prevent duplication of numbering.
12.122.070 Fees.
Application fees for street use or encroachment permits are those established by the city council by resolution in its sole legislative discretion. Application fees shall be paid to the city prior to issuance of any permit. (Ord. 07-06 § 7, 2007)
12.122.080 Violation—Penalty.
Enforcement of any section of this chapter shall be made pursuant to BGMC Title 20. (Ord. 07-06 § 8, 2007)