Chapter 12.22
RIGHT-OF-WAY USE
Sections:
12.22.030 Territorial application.
12.22.040 Construction – Intent.
12.22.060 Powers of the director.
12.22.070 Permit requirements.
12.22.080 Right-of-way use permits.
12.22.090 Applications and processing of permits.
12.22.100 Location rules and review.
12.22.110 Liability and insurance.
12.22.120 Permit fees and charges.
12.22.140 Revocation of permits.
12.22.170 Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.
12.22.180 Billings and collections.
12.22.190 Adoption of procedures.
12.22.200 Violation – Penalty.
12.22.010 Short title.
This chapter is known as the right-of-way use code. It is referred to as the “code.” (Ord. 3216 § 28, 2004).
12.22.020 Purpose.
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 Mount Vernon 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. 3216 § 28, 2004).
12.22.030 Territorial application.
This code and the procedures adopted hereunder shall be in effect throughout the city of Mount Vernon. (Ord. 3216 § 28, 2004).
12.22.040 Construction – Intent.
A. 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.
B. 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.
C. 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 Mount Vernon, 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 Mount Vernon, 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 Mount Vernon, its officers, employees or agents. (Ord. 3216 § 28, 2004).
12.22.050 Definitions.
The following words and phrases when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
A. “Alley” means a public thoroughfare which affords access to abutting property and is usually not intended for general traffic circulation.
B. “Alley cafe” means serving food or beverage from an adjacent cafe or restaurant to patrons seated at tables located within the alley area adjacent to the cafe or restaurant.
C. “City” means the city of Mount Vernon, Washington.
D. “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.
E. “Clear passageway” means an area in the traveled pedestrian way that must be kept clear of any obstructions.
F. “Department” means the development services department or other department designated by the city council.
G. “Development services department” means the development services division of the engineering department or other city division designated by the city council.
H. “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.
I. “Director” means the director of the development services department, or his/her designated representative, or other person designated by the city council.
J. “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.
K. “Notice of violation” means a document mailed to a permittee or unauthorized user and posted at the site of a nonconforming or unsafe condition.
L. “Oral directive” means a directive given orally by city personnel to correct or discontinue a specific condition.
M. “Permit” means a document issued by the city granting permission to engage in an activity not allowed without a permit.
N. “Permit center” means the central location for applying for permits.
O. “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.
P. “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.
Q. “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.
R. “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, sidewalks, bikeways and trails, whether improved or unimproved, including the air rights, subsurface rights and easements related thereto.
S. “Sidewalk” means that portion of the street between the curb lines or the lateral lines of roadway and the adjacent property lines intended for use by pedestrians.
T. “Sidewalk cafe” means serving food or beverage from an adjacent cafe or restaurant to patrons seated at tables located within the sidewalk area adjacent to the cafe or restaurant.
U. “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.
V. “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. 3600 § 8, 2013).
12.22.060 Powers of the director.
The director shall have the power to:
A. 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.
B. Administer and coordinate the enforcement of this code and all procedures adopted hereunder relating to the use of rights-of-way.
C. Advise the city council, mayor and other city departments on matters relating to use of the right-of-way.
D. Carry out such other responsibilities as required by this code or other codes, ordinances, or procedures of the city.
E. Request the assistance of other city departments to administer and enforce this code.
F. Assign the responsibility for interpretation and application of specified procedures to the development services department. (Ord. 3216 § 28, 2004).
12.22.070 Permit requirements.
A. 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; provided, that a right-of-way use permit shall not be required for any use or activity subject to and requiring a permit pursuant to the city’s special events policy permit process.
B. No person shall operate any restaurant or cafe, to provide food or alcoholic liquor, on any public street or sidewalk unless such person has obtained a valid permit, to operate that business in such manner, pursuant to this chapter. (Ord. 3216 § 28, 2004).
12.22.080 Right-of-way use permits.
The following types of right-of-way use permits are established:
A. Type A – Short-Term.
1. Type A permits may be issued for use of right-of-way which does not involve the physical disturbance of the right-of-way.
2. 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.
3. Type A permits include but are not limited to the following:
a. Assemblies;
b. Bike races;
c. Block parties;
d. Parades and processions;
e. Parking;
f. Processions;
g. Nonmotorized vehicle races;
h. Street dances;
i. Street runs;
j. Fairs;
k. Temporary sale of goods;
l. Temporary street closures.
B. Type B – Long-Term.
1. Type B permits may be issued for use of right-of-way for activities for extended periods of time but which will not physically disturb the right-of-way.
2. The use of right-of-way for structures, facilities, and uses that involve capital expenditures and long-term commitments of use require this type of permit.
3. Type B permits include but are not limited to:
a. Bus shelters/stops;
b. Construction site/haul roads;
c. Loading zones;
d. Mobile peddling;
e. Newspaper sale;
f. Recycle facilities;
g. Sales structures;
h. Sidewalk cafes;
i. Alley cafes or uses;
j. Special and unique structures, fountains, clocks, flagpoles, awnings, marquees, benches, kiosks, signs, mailboxes, banners, street furniture, decorations. (Ord. 3600 § 9, 2013).
12.22.090 Applications and processing of permits.
A. To obtain a right-of-way use permit the applicant shall file an application with the development services department or other department designated by the city council.
B. Every application shall be on forms provided by the development services department and shall include five copies of each of the following:
1. The applicable application forms:
a. Type A – Short-term application;
b. Type B – Long-term application;
c. Sidewalk cafe application;
d. Alley cafe or use application;
2. The location of the proposed right-of-way use;
3. A detailed description of the use;
4. A site plan drawn to scale including, but not limited to:
a. Scale and north arrow;
b. Location, identification, and dimensions of all buildings, property lines, setbacks, streets, adjacent streets, and easements;
c. Location and dimensions of existing and proposed structures, parking and loading areas, driveways, existing on-site trees, existing or proposed fencing or retaining walls, freestanding signs, easements, refuse and recycling areas, freestanding lighting fixtures, utility junction boxes, public utility transformers, storage areas, buffer areas, open spaces, curbs, gutters, sidewalks, median islands, and street trees;
d. Existing utilities and connection to existing and/or new utilities; and
e. The area requested for use with illustrations of what physical items will be placed in the right-of-way;
5. The planned duration of the use;
6. Applicant contact information;
7. A signed hold harmless statement;
8. Certificate of liability insurance;
9. Traffic control plan;
10. Application fee plus the cost of postage for mailing any required notices;
11. Where applicable, a list of property owners when notification is required with two sets of mailing labels containing the addresses of these owners;
12. All other information which may be required as specified in procedures adopted hereunder, and shall be accompanied by payment of the required fees.
C. The director shall examine each application submitted for review and approval to determine if it complies with the applicable provisions of this code and procedures adopted hereunder. Other departments that have authority over the proposed use activity will be required to review and approve or disapprove the application. The director may inspect the right-of-way proposed for use to determine any facts which may aid in determining whether a permit should be granted. If the director finds that the application conforms to the requirements of this code 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 department with 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.
D. All applications for permits will be submitted 30 days or more before the planned need for the permit. If unforeseen conditions require expedited processing time the city will attempt to cooperate, but additional fees to cover additional costs to the city may be charged.
E. Upon submittal of a completed application, the development services division shall collect from the applicant an application fee per the fee schedule adopted by the council. (Ord. 3600 § 10, 2013).
12.22.100 Location rules and review.
The applicant shall comply with the following standards and process. The site plans required within MVMC 12.22.090 shall demonstrate that the following dimensional standards will be complied with:
A. Clear passageway for pedestrians must be maintained at all times.
B. Sidewalk Use. The area to be considered for use must have sidewalks that are eight feet in width or greater. A minimum of 60 inches (five feet) must be maintained as clear passageway for pedestrians.
1. In unique instances where the adjacent sidewalk is less than eight feet wide, the director may accept an application; provided, that a minimum of 48 inches (four feet) of clear pedestrian passageway shall be maintained.
2. The director shall forward an administrative recommendation to the city council for review. The city council shall either accept or deny the recommendation.
3. The decision by the city council shall be final.
C. Alley Use. The area to be considered for use must be able to maintain a minimum of 60 inches (five feet) as clear passageway for pedestrians. However, in unique instances the city council may approve an application where a minimum of 48 inches (four feet) of clear pedestrian passageway is maintained.
1. The director shall forward a staff report and a copy of the materials submitted by the applicant to the city council any time an alley use is proposed. The city council shall hold a public hearing where testimony from the public can be taken, and will make a final decision on the application.
2. Prior to the city council hearing on the proposed alley use the city shall send notice to all of the adjacent and abutting property owners of said alley. The city’s notice shall include a brief description of the proposed alley use, and date, location and time of the city council hearing and a statement of where additional information on the application may be obtained. (Ord. 3600 § 11, 2013).
12.22.110 Liability and insurance.
A signed statement that the permittee shall hold harmless the city of Mount Vernon, its officers and employees, and shall indemnify the city of Mount Vernon, its officers and employees for any claims for damage to property or injury to persons which may be occasioned by any activity carried on under the terms of the permit. Permittee shall furnish and maintain such public liability and property damages insurance as will protect permittee and city from all claims for damage to property or bodily injury, including death, which may arise from operations under the permit or in connection therewith. Such insurance shall provide coverage of not less than $100,000 for bodily injury for each person, $300,000 for each occurrence and not less than $300,000 for property damage per occurrence. Such insurance shall be without prejudice to coverage otherwise existing therein, and shall name as additional insured the city of Mount Vernon, its officers and employees, the property owner, and shall further provide that the policy shall not terminate or be canceled prior to the completion of the contract without 30 days’ written notice to the city of Mount Vernon.
As a condition to the issuance of any permit under this chapter, the permittee shall submit a signed statement agreeing 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. 3216 § 28, 2004).
12.22.120 Permit fees and charges.
A. 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 council on the director’s recommendation in accordance with changes in the costs incurred by the city. The city council shall, upon recommendation of the director, establish the amount, rates and formulas for the following fees and charges.
B. Fees and Charges.
1. Application and Processing Fee. A nonrefundable application and processing fee shall be charged for each right-of-way use permit application that is accepted for processing. This fee covers the costs of initial processing, review, inspection and record keeping. The fees shall be as follows:
a. Type A – Short-term $25.00;
b. Type B – Long-term $100.00.
2. Repair and Replacement Charges. If the city should incur any costs in repairing or replacing any property as the result of the permittee’s actions, the costs of repair and replacement will be charged to the permittee. These charges will be for the actual costs to the city.
C. Review and Adjustment of Fees and Charges.
1. The director will initiate, as needed, a review of right-of-way use permit fees and charges to determine their continuing capacity to offset costs incurred by the city in providing services related to the administration of right-of-way use permits.
2. The director may recommend to the city council increases or decreases in the amounts, rates, and formulas of the subject fees and charges to reflect changes in the city’s costs in providing the related services. Factors to be considered by the director include the costs of labor, materials, supplies, vehicles and equipment, taxes and changes in operating procedures.
3. The city council will review and approve all changes to fees and charges. (Ord. 3216 § 28, 2004).
12.22.130 Specifications.
All work to be performed under any permit issued under this code shall conform to all other city codes, the current engineering standards of the engineering department and all other standards used by the city in the administration of this code. (Ord. 3216 § 28, 2004).
12.22.140 Revocation of permits.
A. The director may revoke or suspend any permit issued under this chapter whenever:
1. 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;
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 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.
B. 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. 3216 § 28, 2004).
12.22.150 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. 3216 § 28, 2004).
12.22.160 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. 3216 § 28, 2004).
12.22.170 Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.
A. 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.
B. The director is authorized to order correction or discontinuance of any such condition or activities following the methods specified in procedures adopted pursuant to this code.
C. 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.
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:
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 an arresting peace officer upon the permittee or other responsible person who is in violation of this or other city ordinances;
6. Any object or thing which shall occupy any right-of-way without a permit is declared a nuisance. 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;
7. 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;
8. 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. 3216 § 28, 2004).
12.22.180 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. 3216 § 28, 2004).
12.22.190 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. 3216 § 28, 2004).
12.22.200 Violation – Penalty.
A. The violation of or failure to comply with any provision of this chapter is declared to be unlawful.
B. In addition to or as an alternative to any other penalty provided by this chapter or by law, any person who violates any provision of this chapter shall be subject to the enforcement provisions contained in MVMC Title 19, Code Enforcement. (Ord. 3600 § 12, 2013).