Chapter 12.22
REVOCABLE ENCROACHMENT PERMITS
Sections:
12.22.060 Determination of impact.
12.22.010 Purpose.
This chapter is intended to describe minimum requirements and processes for encroachment permits, which authorize work within the public right-of-way, work associated with City utilities and work on City property including parks and trails. Except where specifically noted, this chapter is intended to support the specific standards for work required by the Ferndale Development Standards, civil drawings, franchise agreements, applicable code regulations, and other building and construction standards, as incorporated by reference in the Ferndale Municipal Code. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.020 Permit required.
Unless specifically exempted herein, no person shall use or encroach upon any public place or utility without first obtaining a permit from the City of Ferndale. For any work requiring digging, 811 must be called before digging occurs.
A. Revocable Encroachment Permit. A revocable encroachment permit is required to encroach upon any portion of City public space, right-of-way or easement area with permanent structures or improvements. Any and all work connecting to or impacting a City utility (water, sewer, stormwater) shall also require a revocable encroachment permit.
B. Special Events Permit. Special events on public rights-of-way or public spaces are issued pursuant to the provisions of Chapter 12.28 FMC.
C. Sidewalk Dining Permit. Sidewalk dining permits within public rights-of-way or public spaces are governed by the provisions of Chapter 12.23 FMC. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.030 Definitions.
A. “Franchise agreement” means an agreement between the City and a private or semi-public utility provider, where said provider is responsible for the maintenance and operation of a private or semi-public utility. Franchise agreements typically include provisions authorizing the utility provider to maintain their utility within the public right-of-way, subject to an ongoing encroachment permit.
B. “To encroach” 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 entrance/exit, extension, marquee, fence, retaining wall, artwork, foundations, footings, sidewalks, hard surface, or any other building or structure.
C. “To 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. Unpermitted use of public property is prohibited as per FMC 10.08.070.
D. “Utility provider” means a private or semi-public company responsible for the maintenance and operations of certain utilities, including but not limited to cable television, phone, natural gas, and water.
E. “Work by or for the City of Ferndale” means construction or maintenance activities completed by City employees, or construction or maintenance activities provided by professional third parties under contract with the City to perform such work. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.040 Exemptions.
The following shall be exempt from the permit requirements of this chapter. However, additional permits and/or reviews required by other regulations of this chapter may be required, and proponents are expected to request utility locates prior to commencing any work within the public right-of-way or easements.
A. Temporary signs pursuant to Chapter 18.80 FMC, including sandwich board signs directly in front of a business that are removed after business hours each day.
B. Work requested by the City of Ferndale, performed by or for the City of Ferndale.
C. Work within the public right-of-way performed by law enforcement, emergency, or fire services during an emergency.
D. Events conducted pursuant to a special events permit issued subject to the provisions of Chapter 12.28 FMC.
E. Emergency repairs and replacement by utility providers when in accordance with a valid franchise agreement.
F. Repair or construction of City buildings or facilities when no utilities are impacted.
G. Regular maintenance and plantings within a planting strip pursuant to Chapter 12.16 FMC and consistent with the landscaping provisions of Chapter 18.74 FMC.
H. The installation and repair of mailboxes consistent with Standard Drawing M-1 of the Ferndale Development Standards and contingent on utility locate requests.
I. Installation of fences across City utility easements on private property, 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 (where applicable) in accordance with this chapter and the provisions of this code prior to their installation. The City retains the right to remove any and all structures within an easement in an emergency event at the cost to the property owner. As part of planned repair or replacement, the City will notify the property owner of the need to remove structures, at the cost to the property owner.
J. Sidewalk dining establishments pursuant to FMC 12.23.040(A).
K. Street furniture, memorial benches, decorative planters and district identification banners placed by the City of Ferndale. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.050 Applications.
Applications for revocable encroachment permits shall contain, in addition to the information required under any other applicable City code, the following information:
A. Critical areas determination, when applicable.
B. Copy of Washington State contractor’s license.
C. Copy of Ferndale City business license.
D. Proposed site plan showing proposed encroachment, private property lines, all existing structures and driveways, easements and/or public property (developed or undeveloped).
E. Acknowledgment that City permit must be kept on site at all times during construction activities.
F. Such other information as the Public Works Director or their designee shall require in order to ensure that:
1. The public infrastructure is protected.
2. The proposed work will not pose a threat to life or safety.
3. The proposed work will not measurably increase the City’s cost to maintain the infrastructure.
4. The proposed work will be durable and structurally sound.
5. The nature of the proposed work is clearly and specifically described.
6. The proposed work does not increase a nonconformity.
7. There shall be no open cutting of pavement or removal of sewer or water lines.
8. Traffic control measures have been planned and will be in place and that traffic or road impacts have been addressed and approved prior to closure/initiation of work.
9. That traffic and road impacts have been studied and evaluated.
10. All structural improvements are in accordance with the Ferndale Municipal Code and all applicable building codes and construction standards as adopted by the FMC.
11. Permit application fees paid pursuant to the City’s fee code.
G. Applications for special events permits shall contain the information described in Chapter 12.28 FMC. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.060 Determination of impact.
A. Upon receiving an application for a revocable encroachment permit, the City shall determine the extent to which the proposal and associated development are likely to create an impact on the City’s infrastructure associated with the physical construction of the encroachment and the associated development. The City is also authorized to request information from the applicant in order to determine whether the land use proposed as a result of the encroachment is likely to create an impact on the environment, City utilities, the City transportation network, or other land uses, and to identify potential measures necessary to mitigate the impact.
B. Regardless of whether development associated with the proposed encroachment is within the City or outside of its municipal boundaries, the City is authorized to require specific mitigation measures in order to mitigate the impacts of the encroachment and any associated development and may deny the application or revoke an approved application should the applicant fail to mitigate these impacts or fail to avoid such impacts in the future.
1. Upon receipt of an encroachment permit application, the Public Works Director shall consult with City staff to determine whether the proposed encroachment and the land use associated with the proposed encroachment have been evaluated by the City for impacts, and whether there is a potential for impacts. If it is determined that there is a potential for impacts, the City shall require that the applicant complete at minimum an impact checklist similar to the City’s SEPA checklist described in Chapter 16.04 FMC (Environmental Policy). In some cases, the City may waive this requirement, if a valid environmental checklist has already been provided. However, the City retains the right to require an additional checklist or impact study or the ability to review existing checklists, should those checklists have been administered by jurisdictions outside the City of Ferndale.
2. No additional public or agency public comment period is required for the review of environmental checklists described by this section, if a SEPA environmental review has already been conducted by another jurisdiction. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016. Formerly 12.22.055)
12.22.070 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 30 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 or the application materials submitted for review. The determination by the City Building Official that a structure is dangerous, insecure, unsafe, a nuisance or has not been constructed, used or maintained in accord with this chapter and applicable codes and standards shall be conclusive.
B. Permits shall also be revoked following written notice of the lapse of an annual application fee, renewal fee, or fees for the exclusive use of the right-of-way, the permittee fails to bring fees/account current.
C. If any such structure, obstruction, use or occupancy is not discontinued on notice to do so by the City and within the time period designated, the City 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. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.080 Denial.
The Public Works Director or their designee may reject or deny an encroachment permit when he/she determines that any of the following apply:
A. Encroachment into the public right-of-way at the location proposed is prohibited by recorded documents associated with the property.
B. The Ferndale Municipal Code, the Ferndale Development Standards and/or other adopted codes, regulations and standards prohibit encroachment of the type and/or quality proposed.
C. An encroachment would result in a threat to life or safety.
D. City maintenance costs could be cost prohibitive.
E. The encroachment permit application includes information that is false, misleading or is intentionally erroneous.
F. The encroachment permit application and information provided by the applicant do not comply with current standards in effect at the time of application, as required by subsection (B) of this section.
G. Work proposed is within a public right-of-way not controlled by the City at the time of application, either as the result of separate ownership or as part of an ongoing capital project in which state or federal control supersedes City control.
H. An alternative design or location is available to the applicant that would reduce or eliminate potential impacts to the City, and would not cause a hardship to the applicant. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.090 Appeal.
Final decisions of the Public Works Director or their designees may be appealed pursuant to FMC 14.11.070. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.100 Violation.
Enforcement procedures and the penalties resulting from violations of this chapter shall be administered pursuant to Chapter 1.12 FMC. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)
12.22.110 Fees.
Application fees for revocable encroachment permits and sidewalk dining permits are those established by the City Council and shall be paid prior to issuance of any permit pursuant to the Unified Fee Code. (Ord. 2142 § 1 (Exh.1), 2020; Ord. 1959 § 1 (Exh. A), 2016; Ord. 1910 § 1 (Exh. 1), 2015)