Chapter 12.17 RIGHT-OF-WAY USE CODE

It is the purpose of this code to provide for the issuance of right-of-way use permits in order to regulate activities within the right-of-way in the city of Burien in the interest of public health, safety and welfare; and to provide for the fees, charges, warranties, and procedures required to administer the permit process. [Ord. 395 § 2, 2004]

12.17.030 Territorial application.

This code and the procedures adopted hereunder shall be in effect throughout the city of Burien. [Ord. 395 § 2, 2004]

12.17.040 Construction – Intent.

(1) This code is enacted to protect and preserve the public health, safety and welfare. Its provisions shall be liberally construed for the accomplishment of these purposes.

(2) It is expressly the purpose of this code and any procedures adopted hereunder to provide for and promote the health, safety and welfare of the general public, and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this code or any procedures adopted hereunder.

(3) It is the specific intent of this code and any procedures adopted hereunder to place the obligation of complying with the requirements of this code upon the permittee, and no provision is intended to impose any duty upon the city of Burien, or any of its officers, employees or agents. Nothing contained in this code or any procedures adopted hereunder is intended to be or shall be construed to create or form the basis for liability on the part of the city of Burien, or its officers, employees or agents, for any injury or damage resulting from the failure of the permittee to comply with the provisions hereof, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this code or any procedures adopted hereunder by the city of Burien, its officers, employees or agents. [Ord. 395 § 2, 2004]

12.17.050 Definitions.

The following words and phrases when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

(1) “Citation and notice” means a written document initiating a criminal proceeding after an arrest and issued by an authorized peace officer, in accordance with the Criminal Rules for Courts of Limited Jurisdiction.

(2) “City” means the city of Burien, Washington.

(3) “City inspector” means the designated employee(s) of the department responsible for inspecting the installation of warning and safety devices in the public right-of-way and restoration of public rights-of-way disturbed by work.

(4) “Complaint” means a written document certified by the prosecuting attorney initiating a criminal proceeding in accordance with the Criminal Rules for Courts of Limited Jurisdiction.

(5) “Department” means the public works department or other department designated by the city manager.

(6) “Director” means the director of the public works department, or his/her designated representative, or other person designated by the city manager.

(7) “Emergency” means a condition of imminent danger to the health, safety, and welfare of property or persons located within the city including, but not limited to, damage to persons or property from natural or manmade consequences, such as storms, earthquakes, riots or wars.

(8) “Franchised utilities” means utilities that have city approval to use city rights-of-way for the purpose of providing their services within the city, whether by written franchise or other agreement granted by the city.

(9) “Nonprofit” means not for monetary gain unless for charitable purposes.

(10) “Oral directive” means a directive given orally by city personnel to correct or discontinue a specific condition.

(11) “Permit” means a document issued by the city granting permission to engage in an activity not allowed without a permit.

(12) “Permit center” means the central location for applying for permits.

(13) “Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.

(14) “Private use” means use of the public right-of-way for the benefit of a person, partnership, group, organization, company, or corporation, other than as a thoroughfare for any type of vehicles, pedestrians or equestrians.

(15) “Procedure” means a procedure adopted by the director to implement this code, or to carry out other responsibilities as may be required by this code or by other codes, ordinances, or resolutions of the city or other agencies.

(16) “Right-of-way” means all public streets and property granted or reserved for, or dedicated to, public use for street purposes, together with public property granted or reserved for, or dedicated to, public use for walkways, paths, trails, sidewalks, bikeways and horse trails, whether improved, unimproved, or unopened, including the air rights, subsurface rights and easements related thereto.

(17) “Right-of-way use permit” or “permit” means a permit for use of the right-of-way issued in conformance with BMC 12.17.080.

(18) “Stop work order” means a notice posted at the site of activity that requires all work to be stopped until the city approves continuation of work.

(19) “Telecommunications carrier” means every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the city, used or to be used for the purpose of offering and providing telecommunications or cable services.

(20) “Telecommunications facilities” means the plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optic cable, pedestals, antennas, electronics, poles, and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications or cable services.

(21) “Telecommunications provider” means every person who provides telecommunications or cable services over telecommunications facilities without any ownership or management control of the facilities.

(22) “Telecommunications service(s)” means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.

(23) “Underground location service” means the underground utilities location center that will locate all underground utilities prior to an excavation.

(24) “Unsafe condition” means any condition which the director determines is a hazard to health, or endangers the safe use of the right-of-way by the public, or does or may impair or impede the operation or functioning of any portion of the right-of-way, or which may cause damage thereto. [Ord. 561 § 2 (Exh. A), 2012; Ord. 395 § 2, 2004]

12.17.060 Powers of the director.

The director shall have the power to:

(1) Administer the provisions of this code including but not limited to interpreting the code and issuing rules necessary for its administration. The director may correct errors and omissions and is authorized to adjust the amount of fees required by this code to be proportional to the scope of the work for which the permit is required.

(2) Administer and coordinate the enforcement of this code and all procedures adopted hereunder relating to the use of rights-of-way.

(3) Advise the city council, city manager and other city departments on matters relating to use of the right-of-way.

(4) Carry out such other responsibilities as required by this code or other codes, ordinances, or procedures of the city.

(5) Request the assistance of other city departments to administer and enforce this code.

(6) Assign the responsibility for interpretation and application of specified procedures to the public works department.

(7) Waive the right-of-way use fee when it is determined by the director that the application will be of benefit to the public. Fees for right-of-way permits for development-related activities will not be waived. [Ord. 395 § 2, 2004]

12.17.070 Hold harmless.

As a condition to the issuance of any permit under this chapter, the permittee shall agree to defend, indemnify and hold harmless the city, its officers, employees and agents, for any and all suits, claims or liabilities caused by, or arising out of any use authorized by any such permit. [Ord. 395 § 2, 2004]

12.17.080 Assurance device/insurance.

(1) In each case where the city requires or allows an applicant to provide an assurance device, the director shall determine the type of assurance device or insurance that will be required. The assurance device may be a nonrevocable letter of credit, set-aside letter, assignment of funds, certificate of deposit, deposit account, bond, or other readily accessible source of funds. A bond will be accepted only when circumstances make a bond the only reasonable form of assurance as determined by the director, and the bond adequately protects the interests of the city, or when a bond is required under state law or local regulations.

(2) The requirements for performance deposits and insurance are based on considerations of the applicant’s prior performance, nature of the proposed use, cost of the activity, length of use, public safety, potential damage to right-of-way and potential liability or expense to the city.

(3) If, after the date by which the required work or improvements are to be completed under a performance assurance device, the director determines that the work or improvements have not been complied with, he/she shall notify the applicant. Such notice shall include statements of:

(a) The work that must be done or the improvement that must be made to comply with the requirements and the assurance device;

(b) The amount of time that the applicant has to commence and complete the required work or improvements; and

(c) That, if the work or improvements are not commenced and completed within the time specified, the city will use the proceeds of the assurance device to have the required work or improvements completed.

(4) Interest from any interest-bearing form of assurance device will accrue to the benefit of the depositor.

(5) If the work or improvements covered by the assurance device are not completed within the time specified in the notice given under subsection (3) of this section, the city shall obtain the proceeds of the device and do the work or make the improvements covered by the device. The city may either have employees of the city do the work or make the improvements or, by using procurement procedures established by law, have a contractor do the work or make the improvements.

(6) If at any time the director determines that actions or inaction associated with any assurance device have created an emergency situation endangering the public health, safety, or welfare, creating a potential liability for the city, or endangering city streets, utilities, or property; and if the nature or timing of such an emergency precludes the notification of applicants as provided in subsection (3) of this section while still minimizing or avoiding the effects of the emergency, the city may use the assurance device to correct the emergency situation. The city may either have employees of the city do the work or make the improvements, or may have a contractor do the work or make the improvements. If the city uses the assurance device as provided by this section, the applicant shall be notified in writing within four days of the commencement of emergency work. The notice must state the work that was completed and the nature or timing of the emergency that necessitated the use of the assurance device without prior notification.

(7) The permit owner is responsible for all costs incurred by the city in doing the work and making the improvements covered by the assurance device. The city shall release or refund any proceeds of a performance device remaining after subtracting all costs for doing the work covered by the device. The owner of the permit shall reimburse the city for any amount expended by the city that exceeds the proceeds of the device. The city shall have a claim against the owner for the amount of any excess.

(8) In each case where the city uses any of the proceeds of the device, it shall give the owner of the permit an itemized statement of all proceeds and funds used. [Ord. 395 § 2, 2004]

12.17.085 Maintenance of facilities.

Each applicant or lessee shall maintain its facilities in a good and safe condition and in a manner that complies with all applicable federal, state, and local requirements. [Ord. 395 § 2, 2004]

12.17.090 Inspections.

As a condition of issuance of any permit or authorization which requires approval of the department, each applicant shall be required to consent to inspections by the department or any other appropriate city department. [Ord. 395 § 2, 2004]

12.17.095 Building moving.

Whenever any person shall have obtained permission from the city to use any street or public way for the purpose of moving any building, an applicant or lessee, upon seven days’ written notice from the city, shall raise or remove, at the expense of the person desiring to move the building, any of the applicant’s or lessee’s facilities that may obstruct the removal of such building; provided, that the person desiring to move the building shall comply with all requirements of the city for the movement of buildings. [Ord. 395 § 2, 2004]

12.17.100 Relocation.

Whenever the city undertakes or approves the construction of any sewer, water or storm drainage line (eight-inch inside diameter or larger) or other street improvement project including, without limitation: installation of traffic signals, street lights, I-NET system, sidewalks and pedestrian amenities, wherein the facility so constructed or approved is or shall become, by gift, transfer, dedication or otherwise, a public facility owned, maintained or operated by the city, and such project necessitates the relocation of any utility company’s then existing facilities, the city shall:

(1) Provide such utility company written notice requiring such relocation at least 90 days prior to the commencement of such improvement project;

(2) Provide such utility company with copies of pertinent portions of the plans and specifications for such street improvement project so that such utility company may relocate its facilities to accommodate such street improvement project. No later than 80 days after receipt of such notice and plans and specifications, such utility company shall complete the relocation of its facilities so as to accommodate such improvement project, at no charge or expense to the city, at least 10 days prior to commencement of construction of such improvements; provided, that such 80-day notice period shall be extended by mutual agreement if necessitated by occurrence of an “act of God”;

(3) If the city requires the subsequent relocation of such utility company’s facility within five years of the date of relocation of the same facility pursuant to this section, the city shall bear the entire cost of such relocation;

(4) As to any relocation of a utility company’s facilities wherein the cost and expense thereof is to be borne by such utility company in whole or in part, in accordance with this section, such utility company may, after receipt of written notice requesting relocation, submit to the city written alternatives to such relocation. Upon receipt, the city shall evaluate such alternatives and shall timely advise such utility company in writing if one or more of the proposed alternatives is suitable to accommodate the work which would otherwise necessitate relocation of such facilities. If so requested by the utility company, the city shall give each alternative proposal full and fair consideration. In no case shall the city arbitrarily reject reasonable alternatives. In the event that the city is satisfied, after due consideration, that there is no other reasonable alternative, the utility company shall relocate its facilities as otherwise provided in this section. The city’s determination that there is no reasonable alternative shall be conclusive and shall not be subject to any city administrative appeal process; and

(5) The foregoing provisions shall be applicable to all utilities within the right-of-way, whether such utilities are publicly owned or privately owned, and whether or not such utilities have an existing franchise with the city for use of the right-of-way. [Ord. 395 § 2, 2004]

12.17.110 Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.

(1) Whenever the director determines that any condition on any right-of-way is in violation of, or any right-of-way is being used contrary to, any provision of this code or procedures adopted hereunder or other applicable codes or standards, or without a right-of-way use permit, the director may order the correction or discontinuance of such condition or any activity causing such condition.

(2) The director is authorized to order correction or discontinuance of any such condition or activities following the methods specified in any of the procedures adopted pursuant to this code or pursuant to Chapter 1.15 BMC.

(3) The director shall also have all powers and remedies which may be available under state law, this code, and procedures adopted hereunder for securing the correction or discontinuance of any condition specified in this section.

(4) The director is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as the director determines appropriate including but not necessarily limited to:

(a) Serving of oral or written directives to the permittee or other responsible person requesting immediate correction or discontinuance of the specified condition;

(b) Service of a notice of civil violation pursuant to BMC 1.15.120, ordering correction or discontinuance of a specific condition or activity within any reasonable period as the director may determine;

(d) Revocation of previously granted permits where the permittee or other responsible person has failed or refused to comply with requirements imposed by the city related to such permits;

(e) Issuance of a stop work order to immediately stop work until authorization is received from the city to proceed with such work;

(f) Service of summons and complaint certified by the city prosecutor or a citation and notice to appear by an arresting peace officer upon the permittee or other responsible person who is in violation of this or other city ordinances;

(g) Any object or thing which shall occupy any right-of-way without a permit is declared a nuisance per Chapters 8.45 and 9.75 BMC. The department may attach a notice to any such object or thing stating that if it is not removed from the right-of-way within 24 hours of the date and time stated on the notice, the object or thing may be taken into custody and stored at the owner’s expense. The notice shall provide an address and phone number where additional information may be obtained. If the object or thing is a hazard to public safety, it may be removed summarily by the city. Notice of such removal shall be thereafter given to the owner, if known. This section does not apply to motor vehicles legally occupying the right-of-way;

(h) All expenses incurred by the city in abating the condition or any portion thereof shall constitute a civil debt owing to the city jointly and severally by such persons who have been given notice or who own the object or thing or placed it in the right-of-way, which debt shall be collectible in the same manner as any other civil debt; and

(i) The city shall also have all powers and remedies which may be available under law, this code and procedures adopted hereunder for securing the correction or discontinuance of any conditions specified by the city. [Ord. 561 § 2 (Exh. A), 2012; Ord. 395 § 2, 2004]

12.17.120 Shared use of excavations.

If at any time a utility company submits a permit request to excavate for installation of its facilities, the city may request in writing that such utility company provide an opportunity to install city facilities within the excavation; provided, that:

(1) Such joint use shall not unreasonably delay the work of the utility company’s excavation;

(2) Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and

(3) To the extent reasonably possible, the utility company shall, at the direction of the city, cooperate with the city and provide other private utility companies with the opportunity to utilize joint or shared excavations in order to minimize disruption and damage to the right-of-way as well as to minimize traffic-related impacts. In the event the city directs a utility company to utilize joint or shared excavations with another utility company, then such utility company shall install facilities supplied by the city in such joint or shared excavations at no cost to the city for such installation if such utility company agrees that there is a commensurate cost savings to them. [Ord. 395 § 2, 2004]

12.17.130 Warning and safety devices.

(1) Warning lights, safety devices, signs and barricades shall be provided on all rights-of-way when at any time there might be an obstruction or hazard to vehicular or pedestrian traffic. All obstructions on rights-of-way shall have sufficient barricades and signs posted in such a manner as to indicate plainly the danger involved. Warning and safety devices may be removed when the work for which the right-of-way use permit has been granted is complete and the right-of-way restored to the conditions directed by the department.

(2) As a condition for the issuance of any right-of-way use permit, the public works department may require an applicant to submit a traffic detour plan showing the proposed detour routing and location and type of warning lights, safety devices, signs and barricades intended to protect vehicular or pedestrian traffic at the site for which the right-of-way use permit is requested. If a traffic plan is required, no right-of-way use permit will be issued until the traffic plan is approved.

(3) Unless otherwise specified in adopted right-of-way use procedures, the current editions of the following standard manuals shall apply to the selection, location, and installation of required warning and safety devices; provided, that the public works department or the city inspector may impose additional requirements if site conditions warrant such enhanced protection of pedestrian or vehicular traffic:

(a) Manual on Uniform Traffic Control Devices for Streets and Highways, as adopted by the Federal Highway Administration.

(b) Street Standards, City of Burien Public Works Department.

(4) Any right-of-way use permit that requires a partial lane or street closure will require a licensed flagperson, properly attired, or an off-duty police officer for the purpose of traffic control during the construction. The use of police officers is mandatory for manual control of traffic at signalized intersections.

(5) All decisions of the designated city inspector shall be final in all matters pertaining to the number, type, location, installation, and maintenance of warning and safety devices in the public right-of-way during any actual work or activity for which a duly authorized right-of-way use permit has been issued.

(6) Any failure of a permit holder to comply with the oral or written directives of the city inspector related to the number, type, location, installation, or maintenance of warning and safety devices in the public right-of-way shall be handled as provided for in this chapter or in Chapter 8.45 BMC or in any other manner at law or equity. [Ord. 395 § 2, 2004]

12.17.140 Construction notification signs.

(1) Any work or activity by a utility or a franchise utility or telecommunications company, its contractors or subcontractors, within the public right-of-way that will take at least four hours or more, or will be excavating or trenching approximately 100 feet or more shall provide and install temporary construction notification signs.

(2) The signs shall include the utility or telecommunication company’s name and logo, the company’s employee contact name for the project and a phone number for the company.

(3) The sign size shall be a minimum of 30 inches by 30 inches and should not exceed 48 inches by 48 inches. All writing, lettering, or numbers shall be not less than four inches in height and be visible and readable by passing motorists.

(4) The signs may be installed on temporary posts or Type I barricades. They shall be located at each end of the project facing approaching traffic and/or within the area of any lane closure or construction activity.

(5) The signs shall be installed at the start of any construction or activity and shall remain until the construction work or activity has been completed and any restoration has been completed and approved by the city inspector.

(6) The director may approve exceptions to this section where the contractor can show that compliance would be impractical. [Ord. 395 § 2, 2004]

12.17.150 Impact of work on existing improvements.

(1) If any sidewalk or curb ramp is blocked by excavation work, a temporary sidewalk or curb ramp shall be constructed or provided. Said temporary improvement shall be safe for travel, convenient for users, and consistent with city standards. Whenever it is necessary for the safety of the public, the city may remove any obstructions, hazards or nuisances from rights-of-way. Anyone causing the obstructions, hazards or nuisances shall be responsible for reimbursing the city for the expense of such removal.

(2) Each permittee shall cover an open excavation with non-skid steel plates ramped to the elevation of the contiguous street, pavement, or other public right-of-way, or otherwise protected in accordance with city standards.

(3) All excavated material that is piled adjacent to any excavation shall be maintained in such a manner as not to endanger those working in the excavation, pedestrians, or users of the right-of-way. When the confines of the area being excavated are too small to permit the piling of excavated material next to the excavation, the director shall have the authority to require the permittee to haul the excavated material to a storage site and then return the excavated material to the excavation at the time of backfilling. It is the responsibility of the permittee to secure the necessary permission and make all arrangements for any required storage and disposal of excavated material.

(4) At any time a permittee disturbs the yard, residence or the real or personal property of a private property owner or the city, such permittee shall ensure at the permittee’s expense that such property is returned, replaced and/or restored to a condition that is comparable to the condition that existed prior to the commencement of the work.

(5) Existing drainage channels, such as gutters, swales or ditches, shall be kept free of dirt or other debris so that natural flow will not be interrupted. When it is necessary to block or otherwise interrupt flow of the drainage channel, a method of rerouting the flow must be submitted for approval by the director prior to the blockage of the channel. [Ord. 395 § 2, 2004]

12.17.160 Pavement and sidewalk cutting restrictions.

(1) The pavement on any street shall not be cut or excavated for a period of five years after the pavement has been constructed or resurfaced. In cases of emergency or construction failure, or if all alternatives to pavement cutting have been exhausted, the director may grant a waiver, which may be subject to the placement of additional conditions on the permit in accordance with the city’s street standards. If a traverse cut is made within the five-year “no-cut” period, a maximum 150-foot-long, minimum half-width, hardsurface overlay shall be placed over the cut.

(2) Sidewalk cuts shall be restored to their original specification and surface treatment, with the restoration covering no less than the section between expansion joints. [Ord. 395 § 2, 2004]

12.17.170 Restoration of the public right-of-way.

(1) Restoration. In any case in which the sidewalk, street, or other public right-of-way is or is caused be excavated, the owner and permittee shall restore such excavation in the manner prescribed by the orders, regulations and department standards.

(2) Backfill, and Replacement of Pavement Base. Backfilling in a right-of-way opened or excavated pursuant to a permit issued under the provisions of this chapter shall be compacted to a degree equivalent to that of the undisturbed ground in which the excavation was begun, unless the director determines a greater degree of compaction is necessary to produce a satisfactory result. All backfilling shall be accomplished according to city standards and specifications. All backfills shall be inspected and approved by the director or his/her designee prior to any overlaying or patching.

(3) Pavement Restoration. The permittee shall restore the surface of any public right-of-way to its original condition and replace any removed or damaged pavement with the same type and depth of pavement as that which is adjoining, including the gravel base material. All restoration shall conform to the city standards and shall be accomplished within the time limits set forth in the permit. [Ord. 395 § 2, 2004]

12.17.180 Debris and spilled loads in the right-of-way.

(1) The owner or operator of any vehicle that has spilled, dropped, dumped or in any manner whatsoever deposited any matter upon the right-of-way shall cause the right-of-way to be cleaned to the satisfaction of the department. Upon failure to do so the department may have the right-of-way cleaned and the costs thereof shall be charged to the person or persons so responsible. The department has the authority to designate haul routes and time of day for operations involving hauling over public rights-of-way.

(2) Earth-hauling contractors, builders, or anyone else utilizing vehicles upon rights-of-way shall provide persons or equipment to keep the right-of-way clean at all times to the satisfaction of the department. Upon failure to do so, the department may issue an immediate stop work order, revoke city permits, and the responsible person or persons may be directed to immediately clean the right-of-way to the satisfaction of the department. Upon failure to do so the department may cause to have cleaned the right-of-way and charge the costs thereof to the person or persons so responsible. [Ord. 395 § 2, 2004]

12.17.190 Reserved.

[Ord. 395 § 2, 2004]

12.17.200 Billings and collections.

The department, jointly with the finance department, may establish administrative rules and procedures pertaining to the billing and collection of fees and charges adopted pursuant to this code. [Ord. 395 § 2, 2004]

12.17.210 Adoption of procedures.

The director may prepare and adopt procedures for the purpose of implementing this code or to carry out other responsibilities as may be required by this code or other codes, ordinances of the city or other agencies. Such procedures do not require approval by the city council. [Ord. 395 § 2, 2004]

12.17.220 Appeal of right-of-way use procedures and related requirements.

Any applicant who questions the specific department procedures, requirements or directives related to the private use of the public right-of-way may request in writing that the director grant relief from the requirement or grant an alternative interpretation of the requirement. The director will decide upon such written requests within 10 days. Changes to requirements may be granted if they will improve safety or improve quality. [Ord. 395 § 2, 2004]

12.17.230 Appeal of final decision to hearing examiner.

A decision of the director in accordance with this title, including a decision issued pursuant to BMC 12.17.220, may be appealed to the hearing examiner pursuant to BMC 2.20.020, except that the “director” as used therein shall mean the public works director. Anyone desiring to appeal a decision of the director shall be required to complete a notice of appeal as set forth in BMC 2.20.060. The appeal hearing shall be governed by BMC 2.20.070. Appeals of decisions of the hearing examiner shall be to superior court. [Ord. 395 § 2, 2004]

12.17.240 Liability.

The director and other employees charged with the enforcement and administration of this code, acting for the city in good faith and without malice in the discharge of their duties shall not thereby render themselves liable personally for any damages which may accrue to persons or property as a result of any act required or by reason of any act or omission in the discharge of such duties. [Ord. 395 § 2, 2004]

12.17.250 Violation – Penalty.

The violation of or failure to comply with any provision of this chapter is declared to be unlawful and subject to enforcement as set forth in Chapter 1.15 BMC. [Ord. 561 § 2 (Exh. A), 2012; Ord. 395 § 2, 2004]