Chapter 12.18
RIGHT-OF-WAY USE CODE – PERMITS
Sections:
12.18.010 Permit requirements.
12.18.030 Right-of-way use permits.
12.18.040 Right-of-way use permit applications – Requirements.
12.18.050 Processing of right-of-way use permit applications.
12.18.060 Permit fees and charges.
12.18.090 Revocation of permits.
12.18.105 No transfer or assignment.
12.18.110 Permit cancellation charges.
12.18.120 Completion of construction.
12.18.140 Responsibilities of the owner.
12.18.010 Permit requirements.
(1) Except as otherwise provided at BMC 12.18.030 for special events and Chapter 12.38 BMC for maintenance, removal, pruning or windowing of trees and/or vegetation in the right-of-way, it is unlawful for anyone to make private use of any public right-of-way without first having obtained a right-of-way use permit issued by the city or to use any right-of-way without complying with all the provisions of such right-of-way use permit issued by the city.
(2) Pursuant to BMC 12.18.030(6), any telecommunications carrier or provider who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any right-of-way of the city for the purpose of providing telecommunications services shall first obtain authorization in the form of a franchise authorizing the use of such right-of-way consistent with the requirements and conditions of such franchise.
(3) All permit applicants shall, before commencing any construction in city rights-of-way, comply with all requirements of Chapter 19.122 RCW, the one number locator service.
(4) Use of the right-of-way of the city for special events shall be governed by Chapter 12.15 BMC; provided, that all special events that may alter the appearance of or disturb the surface or subsurface of the right-of-way shall be subject to the requirements for a type C permit in addition to the requirements for a special events permit.
(5) A permit shall not be required under this chapter for the maintenance, removal, pruning or windowing of trees and/or vegetation in the right-of-way of the city that is subject to the requirements of Chapter 12.38 BMC; provided, that maintenance, removal, pruning or windowing of trees and/or vegetation in the right-of-way of the city that is part of other work or activities to be performed in the right-of-way of the city shall be subject to this chapter. [Ord. 512 § 1, 2009; Ord. 395 § 2, 2004]
12.18.020 Additional permits.
An applicant who applies for a right-of-way permit must comply with all applicable city, state and federal laws, ordinances, codes and regulations. It shall be the sole responsibility of the applicant to obtain all permits or licenses required by other agencies. [Ord. 395 § 2, 2004]
12.18.030 Right-of-way use permits.
(1) Type A – Short-Term Nonprofit.
(a) Type A permits are issued for use of a right-of-way for 72 or less continuous hours for nonprofit purposes that are not classified as special events pursuant to Chapter 12.15 BMC, which do not involve any alteration to the appearance of or a physical disturbance to the surface or subsurface of the right-of-way or any improvements located in, over, under and upon the right-of-way.
(b) This type of use may involve disruption of pedestrian and vehicular traffic or access to private property, and may require inspections, cleanup and police surveillance. For periods longer than 72 hours, these uses may be required to obtain a Type D annual right-of-way permit. If any of these uses are for profit, and are not classified as special events pursuant to Chapter 12.15 BMC, a Type B permit will be required.
(2) Type B – Short-Term Profit.
(a) Type B permits are issued for uses of right-of-way for 72 or less continuous hours for profit purposes, which do not involve the physical disturbance of the right-of-way and are not classified as special events pursuant to Chapter 12.15 BMC.
(b) This type of use may involve disruption to pedestrian and vehicular traffic or access to private property, and may require inspections, cleanup and police surveillance. For periods longer than 72 consecutive hours, a Type D annual right-of-way permit may be required.
(c) Type B permits include, but are not limited to, the following when they are for profit purposes:
(i) House or large structure moves other than those which require a Type E permit;
(ii) Temporary sale of goods;
(iii) Temporary street closures.
(3) Type C – Disturbance of City Right-of-Way.
(a) Type C permits are issued for use of a right-of-way, for a period not in excess of 180 continuous days, for activities that may alter the appearance of or disturb the surface or subsurface of the right-of-way but do not necessarily involve the installation of permanent structures.
(b) Type C permits include but are not limited to:
(i) Boring;
(ii) Culverts;
(iii) Curb cuts;
(iv) Paving;
(v) Drainage facilities;
(vi) Driveways;
(vii) Fences;
(viii) Landscaping;
(ix) Painting/striping;
(x) Sidewalks;
(xi) Street trenching;
(xii) Utility installation, repair, replacement.
(c) Permanent structures not included in the above list that are placed in the right-of-way for a period over 72 hours may require a Type D annual right-of-way use permit, below. The director shall have the discretion to determine whether a Type C or D permit, or a facilities lease shall be required for any particular use or uses.
(4) Type D – Annual Right-of-Way Permit.
(a) Type D annual right-of-way permits are issued for uses in excess of 72 hours that will not physically disturb the right-of-way and are associated with long-term use of the right-of-way.
(b) The use of the right-of way for structures, facilities, and uses that involve capital expenditures and long-term commitments require this type of permit; provided, however, that more intensive long-term uses of the right-of-way such as the location of facilities and permanent structures on the right-of-way will require a facilities lease (Type F permit).
(c) Type D permits include, but are not limited to:
(i) Air rights and aerial facilities;
(ii) Bus shelters and stops;
(iii) Access to construction sites and haul roads;
(iv) Loading zones;
(v) Newspaper sale, distribution, and storage facilities;
(vi) Recycling facilities;
(vii) Sales structures;
(viii) Sidewalk cafes;
(ix) Special and unique structures, such as awnings, benches, clocks, decorations, flagpoles, fountains, kiosks, marquees, private banners, public mailboxes, and street furniture;
(x) Underground rights;
(xi) Utility facilities;
(xii) Waste facilities.
(d) The director shall have the discretion to determine whether a Type C or D permit or a facilities lease shall be required for any particular use or uses.
(5) Type E – Hauling Loaded Vehicles.
(a) Type E permits are issued for uses of right-of-way, for a period not in excess of 180 continuous days, for those activities that have the potential of altering the appearance of, or disturbing the surface or subsurface of, the right-of-way due to hauling large quantities.
(b) Type E permits include, but are not limited to:
(i) Frequent use hauling involving an average of six loaded vehicles per hour during any eight-hour period in one day, for two or more consecutive days.
(ii) Any hazardous waste hauling.
(c) Type E permits may be issued to a general contractor to authorize construction and fill activities by the said general contractor and by subcontractors.
(6) Type F Permits – Facilities Lease or Franchise. A Type F permit (facilities lease or franchise) is issued for use of a right-of-way for a period in excess of 180 continuous days, for those activities that have the potential of altering the appearance of or disturbing the surface or subsurface of the right-of-way or for the location of permanent structures on the right-of-way. Uses requiring a facilities lease or franchise shall include, but are not necessarily limited to, the following:
(a) Location of garages, buildings, or other structures within the right-of-way;
(b) Location of telecommunications facilities within the right-of-way;
(c) Location of utility infrastructure within the right-of-way.
The director shall have the discretion to determine whether a franchise will be required rather than a facilities lease. The city council reserves the sole discretion to lease city property and other facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases. The terms of such facilities leases and franchises, including the fees associated with such lease or franchise, shall be negotiated with the lessee or franchisee on a case-by-case basis. [Ord. 512 § 2, 2009; Ord. 395 § 2, 2004]
12.18.040 Right-of-way use permit applications – Requirements.
Any person that desires a right-of-way use authorization pursuant to this chapter shall file an application with the city, which shall include the following information unless specifically waived by the director:
(1) The identity of the applicant, including all affiliates of the applicant.
(2) A description of the services that are or will be offered or provided by the applicant.
(3) Engineering plans, licensed surveys, specifications stamped by a registered professional engineer, and a map of the facilities to be located within the city, all in sufficient detail to identify:
(a) The location and route requested for applicant’s proposed facilities;
(b) The location of all overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the public way along the proposed route;
(c) The location(s), if any, for interconnection with the facilities of other entities; and
(d) The specific trees, structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate.
(4) If an applicant, other than a franchised utility, is proposing to install overhead facilities, evidence must be provided that surplus space is available for locating its proposed facilities on existing utility poles along the proposed route, including evidence of prior approval by the owner of the utility poles, and evidence that such facilities shall receive approval through the Type 1 review process pursuant to BMC 19.65.065.
(5) If an applicant is proposing an underground installation in existing public rights-of-way, information must be provided in sufficient detail to identify:
(a) The excess capacity currently available in such ducts or conduits before installation of applicant’s facilities;
(b) The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s facilities; and
(c) Evidence of ownership or a right to use such ducts or conduits.
(6) If applicant is proposing an underground installation within new non-public power ducts or conduits to be constructed within the public rights-of-way, information must be provided in sufficient detail to identify:
(a) The location proposed for the new ducts or conduits;
(b) The excess capacity that will exist in the applicant’s facilities;
(c) A preliminary construction schedule and completion date;
(d) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities;
(e) Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the facilities described in the application;
(f) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities;
(g) All deposits or charges required pursuant to this chapter; and
(h) An application fee, which shall be set by the city council by resolution.
(7) For a franchised utility, the professional engineering stamp requirements of subsection (3) of this section are waived, in accordance with the terms and conditions of that utility’s franchise.
(8) All right-of-way use permit applications which involve work on, in, under, across, or along any public right-of-way shall include a traffic control plan which is consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicle travel. [Ord. 395 § 2, 2004]
12.18.050 Processing of right-of-way use permit applications.
Processing of right-of-way use permit applications includes the following seven steps:
(1) Step 1: Application Submittal. The applicant completes the top half of the permit application form and submits the application to the city of Burien permit counter for review. Submission is required no later than 30 days before the proposed use of a street, sidewalk or public right-of-way. Applications for a new private use of the public right-of-way must be submitted at least 90 days before the proposed use. Applications must comply with the requirements of BMC 12.17.090.
(2) Step 2: Initial Review. The city’s permit specialist will check the permit application and advise the applicant of any additional information needed, and the fees and other requirements necessary for the right-of-way use permit.
(3) Step 3: Fees, Deposits and Insurance. The applicant provides permit application and review fees, minimum one-hour inspection fee, performance deposit, and proof of comprehensive liability insurance certificate and cleanup deposit (when required).
(4) Step 4: Review and Approval Process. The application will be reviewed by the public works department, which is responsible for the management of street, sidewalk and public right-of-way uses. As required, the public works department shall coordinate the review of right-of-way use permit applications by other departments, including police, fire, parks and recreation, planning, and the city attorney. The review process may require that the applicant meet with city departments to provide additional information. Identification or verification of other requirements or conditions to assure public safety or public use may result from the review process. Permit approval is indicated by the signature of the director (or designee). When the regulatory, code, insurance and performance security requirements of right-of-way permits are fulfilled, denial or cancellation of a valid, existing permit may occur only when required by a city of Burien city council-authorized street improvement project, or for emergency response to a public safety hazard.
(5) Step 5: Notification to City. The applicant must notify the designated department or individual within the city 48 hours prior to the start of the permitted event or project. (The application identifies the city contact person who is to be notified.)
(6) Step 6: Permit Inspection (As Needed). Provides for the inspection of the applicant’s activities for compliance with the conditions of the permit. Prior to each required inspection, the applicant must give at least 24 hours’ notice to the city’s inspector. The city’s inspector will document all conditions for which the applicant will be charged for services, such as damage repair or cleanup. The record of inspections and charges will be maintained as a separate document, and filed with the permit application.
(7) Step 7: Permit Completion. Provides for the termination of the permit, the return of deposits, insurance certificates, performance bonds, etc., to the applicant, and the collection of any repair, cleanup or other charges due to the city. [Ord. 395 § 2, 2004]
12.18.060 Permit fees and charges.
The fee for each permit shall be set forth in a fee schedule to be adopted by the city council. Fees and charges adopted pursuant to this section may be increased or decreased by the city council on the director’s recommendation in accordance with changes in the costs incurred by the city. [Ord. 395 § 2, 2004]
12.18.070 Specifications.
All work to be performed under any permit issued under this code shall conform to all other city codes, the current development standards of the public works department and all other standards used by the city in the administration of this code. [Ord. 395 § 2, 2004]
12.18.080 Permit exception.
(1) A right-of-way use permit shall not be required of utilities or franchised utilities when responding to emergencies that require work in the right-of-way, such as water or sewer main breaks, gas leaks, downed power lines or similar emergencies; provided, that the department shall be notified by the responding utility or city contractor verbally or in writing, as soon as practicable following onset of an emergency. Nothing herein shall relieve a responding utility or city contractor from the requirement to apply for a right-of-way use permit within 48 hours after beginning emergency work in the right-of-way.
(2) The director shall determine whether permits shall be required for routine maintenance and construction work performed by city utilities and city maintenance crews. [Ord. 395 § 2, 2004]
12.18.090 Revocation of permits.
(1) The director may revoke or suspend any permit issued under BMC 12.17.090 whenever:
(a) The work or activity does not proceed in accordance with the plans as approved, or conditions of approval, or is not in compliance with the requirements of this code or procedures, or other city ordinances or state law;
(b) The city has been denied access to investigate and inspect how the right-of-way is being used;
(c) The permittee has made a misrepresentation of a material fact in applying for a permit;
(d) The progress or condition of the approved work or activity indicates that it is or will be inadequate to protect the public and adjoining property or the street or utilities in the street, or any excavation or fill endangers or will endanger the public, the adjoining property or street, or utilities in the street.
(2) Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized or directed by the director. [Ord. 395 § 2, 2004]
12.18.100 Renewal of permits.
Each permit shall be of a duration as specified on the permit and may not be renewed. If continued use of the right-of-way is desired by the permittee after expiration of a permit, he must apply for a new permit. [Ord. 395 § 2, 2004]
12.18.105 No transfer or assignment.
Permits shall not be transferable or assignable, and work shall not be performed under a permit in any place other than that specified in the permit. Nothing herein contained shall prevent a permittee from subcontracting the work to be performed under a permit; provided, however, that the holder of the permit shall be and remains responsible for the performance of the work under the permit, and responsible for all bonding, insurance and other requirements of this title and under said permit. [Ord. 395 § 2, 2004]
12.18.110 Permit cancellation charges.
If the permittee should fail to properly notify the city of Burien as required prior to the start of the use authorized by a permit, fail to notify the city’s inspector prior to required inspections, and/or fail to fully and accurately record all required information, the permit may be cancelled. If the permit is cancelled for failure to notify, due to misuse of the permit and/or incomplete or inaccurate record-keeping, the permittee will be charged the full cost of the original permit for each such failure. [Ord. 395 § 2, 2004]
12.18.120 Completion of construction.
The permittee shall promptly complete all construction activities so as to minimize disruption of the public and other ways and other public and private property. All construction work authorized by a right-of-way permit within public and other ways, including restoration, must be completed within 120 days of the date of issuance, unless a specific alternate number of days is approved by the director at the time a right-of-way permit is issued. [Ord. 395 § 2, 2004]
12.18.130 As-built drawings.
Except for franchised utilities, within 60 days after completion of construction, the director may require the permittee to furnish the city with two complete sets of plans, drawn to scale and certified by a licensed surveyor as accurately depicting the horizontal and vertical location of all facilities constructed pursuant to a right-of-way permit. [Ord. 395 § 2, 2004]
12.18.140 Responsibilities of the owner.
The owner of the facilities to be constructed and, if different, the applicant or lessee, are responsible for the performance of and compliance with all the provisions of Chapter 12.17 BMC and this chapter. [Ord. 395 § 2, 2004]