Chapter 12.56 RIGHT-OF-WAY OPERATION AND REGULATION

A. It is the purpose of this chapter to provide for the issuance of right-of-way use permits in order to regulate activities that involve construction, disturbance, modification, or certain uses and maintenance within the right-of-way in the city in the interest of public health, safety, and welfare; and to provide for warranties and procedures required to administer the permit process. This chapter and the procedures adopted hereunder shall be in effect throughout the city.

B. It is the express purpose of this chapter 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 chapter or any procedures adopted hereunder.

C. It is the specific intent of this chapter and any procedures adopted hereunder to place the obligation of complying with the requirements of this chapter upon the permittee, and no provision is intended to impose any duty upon the city, or any of its officers, employees, or agents. Nothing contained in this chapter 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, 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 of enforcement of this chapter or any procedures adopted hereunder by the city, its officers, employees, or agents. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.020 Definitions.

The following words and phrases when used in this chapter shall have the meanings ascribed to them in this section:

“Abandoned personal property” means any item of property other than real property left in, upon, or under a city right-of-way, which shall be presumed to be owned or under the control of the abutting property owner.

“Citation and notice” means a written document initiating a criminal proceeding and issued by an authorized peace officer in accordance with the municipal court rules.

“Complaint” means a written document certified by the prosecuting attorney initiating a criminal proceeding in accordance with the municipal court rules.

“Directive memorandum” means a letter from the city to a right-of-way use permittee notifying the recipient of specific nonconforming or unsafe conditions and specifying the date by which corrective action must be taken.

“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 granted by the city or otherwise.

“Notice of violation” means a document mailed to a permittee or unauthorized user and posted at the site of a nonconforming or unsafe condition.

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

“Parkway” means the portion of the right-of-way on each side of the developed street, lying between the street curb or edge of street pavement and the edge or line of the right-of-way.

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

“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 or pedestrians.

“Procedure” means a procedure adopted by the public works director to implement this chapter, or to carry out other responsibilities as may be required by this chapter or by other ordinances or resolutions of the city or other agencies.

“Rights-of-way” means all public streets and property granted or reserved for, or dedicated to, public use for streets, together with public property granted or reserved for, or dedicated to, public use for walkways, sidewalks, and bikeways, whether improved or unimproved, including the air rights, subsurface rights and easements related thereto.

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

“Underground storage tank” means any tank or other container of any kind whatsoever which has or continues to be used for the storage, dispensing, or holding of any substance or material, abandoned or currently in use, located within the right-of-way.

“Unsafe condition” means any condition which the public works 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.

“Use” or “use of right-of-way” means any activity, occupancy or use that takes place within the right-of-way that involves any construction, disturbance, maintenance, modification or other work, or any activity, occupancy, or use that interferes with or may interfere with public use of the right-of-way. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.030 Responsibility for right-of-way.

A. The city manager is responsible for: the establishment of procedures needed to implement this chapter; the administration and coordination of the enforcement of this chapter; the development of standards or guidelines to be used in reviewing requests and making decisions on applications to use the right-of-way; and monitoring use of the right-of-way by right-of-way use permittees. The city manager may delegate authority and responsibility to other city staff for review and decisions on permit applications and enforcement of permit conditions.

B. The right-of-way use permittee is responsible to carry out and comply with all instructions and conditions of the right-of-way use permit, right-of-way procedures, all other city ordinances, and all other federal, state, or local laws and regulations. The permittee is also responsible for any and all liability, damage, injury, and impact that is a result of any activity, use, or action, or lack of action or omission, on the part of the permittee or representative of the permittee, or by any other person acting on behalf of the permittee.

C. The owner of the property abutting the right-of-way is responsible for the routine and general maintenance, upkeep, and condition of the parkway including sidewalks, vegetation, grass areas, plantings, landscaping, and parking areas, except as to how the condition may be affected by permitted right-of-way use by others. The owner of the property abutting the right-of-way is also responsible for any and all liability, damage, injury, and impact that is a result of any activity, use, or action, or lack of action or omission, on the part of the owner or representative of the owner, relating to routine and general maintenance, upkeep, and condition of the parkway. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.040 Permit requirements.

A. It is unlawful for anyone to make private use of any public right-of-way without a right-of-way use permit issued by the city manager or to use any right-of-way without complying with all the provisions of a permit issued by the city.

B. General and specific permit requirements are defined in the procedures referenced in this chapter. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.050 Additional permits.

Additional permits for any use may be required by other city ordinances. The city does not waive its right to use the right-of-way by issuance of any permit. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.060 Right-of-way use permits.

The city manager or the manager’s designee may issue permits for use of the city right-of-way. The following constitute types of right-of-way uses that require permits:

A. Disturbance of Right-of-Way.

1. Right-of-way use permits may be issued for use of rights-of-way for activities that will alter the appearance of or disturb the surface, supersurface, or subsurface of the right-of-way on a temporary or permanent basis. The responsibility for adoption of policies relating to issuance, control, regulation, and enforcement of “disturbance” right-of-way use permits is vested with the public works director.

2. Disturbance of city right-of-way use permits may be for either single uses or multiple uses. Single-use permits will be issued to approved applicants who are planning a single activity or use at a single location in a short period of time. Multiple-use permits will be issued to approved applicants who are planning many activities or uses at several different locations in a short period of time.

3. Disturbance of city right-of-way use permits include, but are not limited to: boring, painting, culverts, sidewalks, curb cuts/driveways, street trenching, drainage facilities, landscaping, and utility installation.

B. Short-Term and Temporary Use of Right-of-Way.

1. Right-of-way use permits for short-term and temporary use of rights-of-way may be issued for activities that will not physically disturb or alter the right-of-way during such periods of time. The responsibility for adoption of policies relating to the issuance, control, regulation, and enforcement of short-term and temporary right-of-way use permits is vested with the city’s police services.

2. The use of rights-of-way for structures and activities that involve short-term and temporary uses requires this type of permit.

3. The short-term and temporary uses include, but are not limited to: festivals, displays, parades, dances, concerts, public or private gatherings, and community event signs (such as sandwich boards or freestanding signs) and shall not exceed 12 square feet per side.

C. Long-Term and Permanent Use of Rights-of-Way.

1. Right-of-way use permits for long-term and permanent use of rights-of-way may be issued for uses and activities during such periods of time. The responsibility for adoption of policies relating to issuance, control, regulation, and enforcement of long-term and permanent right-of-way use permit is vested with the public works director.

2. The use of rights-of-way for structures and activities that involve long-term uses requires this type of permit.

3. Long-term and permanent uses include but are not limited to: construction site/haul roads, waste containers, seasonal sidewalk cafes, utility facilities, and special and unique structures, such as fountains, clocks, flag poles, awnings, marquees, banners, street furniture, and decorations. [Ord. 921B §§ 2, 3, 2014; Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.070 Applications and processing of permits.

A. To obtain a right-of-way use permit for disturbance of rights-of-way, long-term and permanent uses, or short-term and temporary uses, the applicant shall file an application with the public works department.

B. Every application shall include the location of the proposed right-of-way use, a description of the use, the planned duration of the use, applicant contact information, and all other information which may be required as specified in procedures adopted hereunder, and shall be accompanied by payment of any fees as may be required.

C. Certain applicants such as utilities and contractors may be involved in frequent use of the right-of-way for repair, maintenance, and construction in a short period of time. To avoid the issuance of a new permit for each use, the city may issue a permit for a period up to, but not exceeding, 90 days for multiple uses.

D. The city manager shall examine each right-of-way application submitted for review and approval to determine if it complies with the applicable provisions of this chapter and procedures adopted hereunder. If he finds that the application conforms to the requirements of this chapter and procedures adopted hereunder, that the proposed use of such right-of-way will not unduly interfere with the rights and safety of the public, and if the application has not been disapproved by a jurisdiction with higher authority, he may approve the permit, and may impose such conditions thereon as are reasonably necessary to protect the public health, welfare, and safety, and to mitigate any impacts resulting from the use.

E. All applications for right-of-way use permits should be submitted 15 business days or more before the planned need for the permit, to allow for adequate review time. Inadequate time to review an application before the time of the desired use may be grounds for denying it. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.080 Specifications.

A. All work to be performed under any right-of-way use permit shall conform to all other city ordinances, the current development standards of the public works department, and all other standards used by the city in the administration of this chapter.

B. A right-of-way use permit shall not be required of franchised utilities or city contractors 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 contractor from the requirement to obtain a right-of-way use permit after beginning emergency work in the right-of-way.

C. Permits shall not be required for routine maintenance and construction work performed by city utilities and city maintenance crews, or routine activities performed by other city departments that may take place within the city right-of-way. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.090 Revocation of right-of-way use permits.

A. The city manager may revoke or suspend any right-of-way use permit issued under CMC 12.56.060 whenever:

1. The work does not proceed in accordance with the plans as approved, or conditions of approval, or is not in compliance with the requirements of this chapter, or other city ordinances or state law;

2. The city has been denied access to investigate and inspect how the right-of-way is being used;

3. The permittee has made a misrepresentation of a material fact in applying for a permit;

4. The progress of the approved 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.

B. Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized or directed. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.100 Renewals 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/she must apply for a new permit. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.110 Performance deposits/insurance.

A. If the city manager determines that there is a potential for injury, damage, or expense to the city as a result of damage to persons or property arising from an applicant’s proposed use of any right-of-way, the applicant may be required to make a cash deposit with the finance department or to provide a security device or insurance in a form acceptable to the director for the activities described in the subject permit. The amount of the cash deposit, security device, or insurance shall be determined by the city manager.

B. The requirements for performance deposits and insurance are based on consideration of applicants’ 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. [Ord. 831B, 2007; Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.120 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, causes of action, or liabilities caused by, or arising out of, any activities conducted by the permittee resulting from issuance of the permit. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.130 Guarantee.

When there is a need to ensure conformance with the city’s development standards, city or state construction standards, or other requirements, the applicant may be required to provide a guarantee of workmanship and materials for a period of one or more years as determined by the public works director. Such guarantee may be in the form of a cash deposit or a security device in a form and amount approved by the director. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.140 Inspections.

As a condition of issuance of any permit or authorization which requires approval of the city, each applicant shall be required to consent to inspections by any appropriate city department. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

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

A. Whenever the city manager 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 policy or procedures adopted hereunder or other applicable codes or standards, or without a right-of-way use permit, he may order the correction or discontinuance of such condition or any activity causing such condition.

B. The city manager is authorized to order correction or discontinuance of any such condition or activities following the methods specified in procedures adopted pursuant to this chapter.

C. The city manager shall also have all powers and remedies which may be available under state law, this chapter, and procedures adopted hereunder for securing the correction or discontinuance of any condition specified in this section.

D. The city manager is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as the city manager determines appropriate:

1. Serving of oral or written directives to the permittee or other responsible person requesting immediate correction or discontinuance of the specified condition;

2. Service of a written notice of violation, ordering correction or discontinuance of a specific condition or activity within 10 days of notice, or such other reasonable period as the director may determine;

3. 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;

4. Issuance of an order to immediately stop work until authorization is received from the city to proceed with such work;

5. Service of summons and complaint certified by the prosecuting attorney or a citation and notice to appear by a peace officer upon the permittee or other responsible person who is in violation of this chapter or other city ordinances.

E. Any object or thing which shall occupy any right-of-way without a permit is declared a nuisance. The public works 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.

F. 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.

G. The city shall also have all powers and remedies which may be available under law, this chapter and procedures adopted hereunder for securing the correction or discontinuance of any conditions specified by the city. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.160 Warning and safety devices.

A. 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 is restored to the conditions directed by the public works department.

B. As a condition for the issuance of any right-of-way use permit, the city 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 by the city.

C. 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 city may impose additional requirements if site conditions warrant such enhanced protection of pedestrian or vehicular traffic:

1. Manual on Uniform Traffic Control Devices for Streets and Highways, as adopted by the Federal Highway Administration;

2. Development standards, city public works department;

3. Part VIII, “Regulations for Use of Public Streets and Projections over Public Property,” Uniform Building Policy.

D. Any right-of-way use permit that requires a partial lane or street closure will require a licensed, properly attired flagperson or an off-duty police officer for the purpose of traffic control during the construction.

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

F. Any failure of a permit holder to comply with the oral or written directives of the director related to the number, type, location, installation, or maintenance of warning and safety devices in the public rights-of-way shall be handled as provided for in CMC 12.56.150. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.170 Trees prohibited from the rights-of-way.

A. Certain varieties of trees are prohibited from being planted within the city rights-of-way. Such prohibited trees have been excluded from the city rights-of-way to protect utilities and infrastructure or provide for less visual obstructions or interference. Trees not to be planted within the city rights-of-way specifically include the following: alder; apple (fruiting); ash, mountain; birch, white; cherry (fruiting); chestnut; cottonwood; elm, American; hawthorne; London plane; maple, big leaf; maple, Oregon; maple, silver; oak, pine; pagoda; pear (fruiting); plum (fruiting); poplar; sycamore; walnut; willow; and any other species of tree with a propensity of producing large or extensive root systems that may interfere with or damage underground utilities or any infrastructure including but not limited to: streets, curbing, street gutters, sidewalks, parking lots, sanitary sewer lines, sanitary side sewers, storm sewer lines, water lines, water service lines, or other city facilities located within the city rights-of-way.

B. Also prohibited from being planted within the city rights-of-way are any other species of plants and tree that pose an obstruction or potential obstruction to traffic or pedestrian visibility or safe public use of the rights-of-way. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.180 Debris, spilled loads, and personal property located in the rights-of-way.

A. Whenever it is necessary for the safety of the public, the city may remove any obstructions, hazards, or nuisances from rights-of-way; and anyone causing the obstructions, hazards, or nuisances shall be responsible for reimbursing the city for the expense of such removal.

B. The owner or operator of any vehicle which has spilled, dropped, dumped, or in any manner whatsoever deposited any matter upon the rights-of-way shall cause the rights-of-way to be cleaned to the satisfaction of the public works department. Upon failure to do so, the department may cause to have cleaned the rights-of-way and the cost thereof shall be charged to the person or persons so responsible. Any personal property located in, upon, or under the rights-of-way, whether currently in use or abandoned, including, but not limited to, underground storage tanks and other storage facilities, is hereby determined to be owned by the abutting property owner, and shall be the abutting property owner’s responsibility. Should the department, in its sole discretion, determine that said abandoned or currently used personal property constitutes a hazard or nuisance, or otherwise violates any law or regulation imposed by the city, the department shall notify the abutting property owner of their responsibility to have the same removed. Upon failure to do so, the department may cause to have the abandoned or currently used property so removed from the rights-of-way and the cost thereof shall be charged to the person or persons owning the abutting property. Said charges may become a lien upon the abutting property.

C. The department has the authority to designate all routes and time of day for operations involving hauling over public rights-of-way.

D. Earth-hauling contractors, builders, or anyone else utilizing vehicles upon rights-of-way shall provide persons or equipment to keep the rights-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 rights-of-way to the satisfaction of the department. Upon failure to do so, the department may cause to have cleaned the rights-of-way and charge the costs thereof to the person or persons so responsible. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.190 Liens, billings, and collections.

The public works 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 chapter. Any liens imposed upon real property for the failure to compensate the city for charges incurred which are the responsibility of adjoining property owners shall be foreclosed and enforced in the manner and as provided by the laws of the state of Washington pertaining to lien foreclosures. [Ord. 831B, 2007; Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.200 Adoption of procedures.

The city manager may prepare and adopt procedures for the purpose of implementing this chapter or to carry out other responsibilities as may be required by this chapter or other ordinances of the city or other agencies. Such procedures do not require approval by the city council. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.210 Appeal of right-of-way use procedures, and related requirements.

Any applicant who questions a decision or the specific procedures, requirements, or directives related to the private use of the public right-of-way may request in writing that the city manager grant relief from the requirement or grant an alternative interpretation of the requirement. The city manager will decide upon such written requests within 10 days. Changes to requirements may be granted if they will improve safety, reduce costs, reduce schedule, or improve quality. Any party aggrieved by the approval, denial, or conditioning of any right-of-way use permit may appeal such action to the city council if time allows. The decision of the council will be considered final. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.220 Liability.

The city staff charged with the enforcement and administration of this policy, 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. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.230 Violation.

Any person violating any provision of this chapter shall be guilty of a criminal infraction, which carries a monetary penalty not to exceed $1,000 for each offense. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]

12.56.240 Severability.

A. If any one or more sections, subsections, or sentences of this chapter are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this code and the same shall remain in full force and effect.

B. In the event of any conflict with any provision of this policy by any prior policy, ordinance, or resolution adopted by the city, the provisions of this policy shall prevail. [Ord. 760B, 2003; Ord. 749B, 2003; Ord. 574B, 1995.]