Chapter 12.04 PERMITS*

It is the purpose of this chapter to provide for the issuance of right-of-way use permits in order to regulate the use of public rights-of-way in the city in the interest of public health, safety and welfare, and to provide for the fees, charges, warranties and procedures required in order to issue right-of-way permits. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.030 Right-of-way permit required.

No person shall use any public right-of-way without obtaining a right-of-way permit issued by the city and complying with the provisions of the permit and this chapter. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.040)

12.04.040 Types of right-of-way permits.

The following types of right-of-way permits are established:

A. Type B: Short-Term Nondestructive. Type B permits may be issued for use of right-of-way for seventy-two or fewer hours for private purposes which do not involve the physical disturbance of the right-of-way. This type of use may involve disruption of pedestrian, equestrian and/or vehicular traffic or access to private property and may require inspections, cleanup and police surveillance. Type B permits include, but are not limited to, the following:

1. House moves;

2. Oversize loads.

B. Type C: Disturbance of Public Right-of-Way. Type C permits may be issued for use of right-of-way for activities that will alter the appearance or disturb the surface, supersurface or subsurface of the right-of-way on a temporary or permanent basis. Type C permits may be for either single uses or multiple uses. Type C single-use permits will be issued to approved applicants who are planning a single Type C activity at a single location in a short period of time. Type C multiple-use permits will be issued to approved applicants who are planning any Type C activities at several different locations in a short period of time. Type C permits include, but are not limited to, the following:

1. Boring;

2. Painting;

3. Culverts;

4. Street trenching;

5. Curb cuts/driveways;

6. Drainage facilities;

7. Fences;

8. Landscaping;

9. Tree removal or trimming;

10. Sidewalk repair, modification or construction;

11. Construction of streets and/or traffic signals;

12. Utility installation for gas, power, sewer, water, wireless or telecommunications.

C. Type D: Disturbance of Unopened Public Rights-of-Way. Type D permits shall include those uses and activities as allowed under Chapter 12.08 regarding use of unopened public rights-of-way.

D. Type E: Long-Term and Permanent. Type E 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. 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. Type E permits include, but are not limited to, the following:

1. Air rights;

2. Underground rights;

3. Bus shelters/stops;

4. Sanitary waste dumpsters;

5. Loading zones;

6. Mobile peddling;

7. Newspaper stands;

8. Recycle facilities;

9. Construction site/haul roads;

10. Utility facilities and structures;

11. Special and unique structures: fountains, clocks, flagpoles, awnings, marquees, benches, kiosks, signs, banners, street furniture and decorations.

E. Type F: Disturbance of Right-of-Way for Long-Term Personal Use and/or Profit. Type F permits may be issued for use of right-of-way for activities for extended periods of time that will physically disturb the right-of-way. Type F uses include, but are not limited to, the following:

1. Sidewalk cafes;

2. Storage of materials or equipment.

F. Type G: Blanket Permit Activity. Type G permits may be issued to utility companies and franchised utilities. Blanket activity work has a moderate effect on nonarterial right-of-way or traffic patterns. Some examples of blanket activities include:

1. Installing utility services while disturbing no pavement;

2. Installing short side services and hydrants;

3. Drilling or boring under a street;

4. Constructing splice pits; and

5. Routine utility line maintenance. (Ord. 1403 § 2 (Exh. B) (part); Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.050)

12.04.050 Processing and enforcement of right-of-way permit.

The director of public works shall be responsible for processing, approval, disapproval, inspection and enforcement of the provisions of this chapter and all applicable engineering and construction standards as they relate to the issuance of right-of-way use permits. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.060)

12.04.060 Application and processing of right-of-way permit.

A. To obtain a right-of-way permit, the applicant shall file an application on forms provided by the city, with the public works department, and by paying a fee established by the city council pursuant to such periodic resolution as the council, from time to time, updates and approves.

B. The director of public works shall examine each application submitted and determine if it complies with the provisions of this chapter and adopted engineering-construction standards of the city. If there is such compliance, the permit may be approved; provided, that the director of public works may impose such conditions as are necessary and reasonable to protect the public health, welfare and safety, and to mitigate any impact resulting from the proposed use of public right-of-way. If there is not such compliance, or if conditions cannot assure that the intended use will not unduly interfere with the public right-of-way, the permit shall be denied.

C. Complete right-of-way permit applications which satisfy the provisions of this chapter shall be acted upon within ten working days of receipt. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.070)

12.04.070 Blanket right-of-way permits.

A. Utility companies, franchised utilities, and wireless communication facilities may apply for a blanket right-of-way permit for the use of nonarterial public right-of-way within the city for blanket permit activities under Section 12.04.040(F) without the necessity of an individual permit for each such activity. Blanket permit activities not listed on the face of the permit shall require a separate right-of-way permit.

B. All applications must be accompanied by the fee established by city council resolution pursuant to Section 12.04.080.

C. A blanket right-of-way permit may be approved for a period of up to one year from the date of issuance, subject to the requirements of this chapter, the terms of the blanket right-of-way permit and the rules and regulations for blanket right-of-way permits as established by the director of public works.

D. All blanket permit holders shall provide written notification to the city twenty-four hours before starting any blanket activity work.

E. All blanket permit holders shall submit blanket permit activity reports to the city on a quarterly basis. The activity report shall identify all blanket permit activities performed within the city in the previous three-month period and shall be submitted by the twentieth of the month following the end of each quarter. (Ord. 1403 § 2 (Exh. B) (part): Ord. 1329 § 5 (Exh. A) (part), 2013)

12.04.080 Permit fees and charges.

The fees and charges for right-of-way permits shall be established by city council pursuant to such periodic resolution as the council, from time to time, updates and approves in order to ensure that such fees and charges actually reflect costs incurred by the city to process such permits. Engineering costs incurred by the city utilizing a consulting engineer associated with the processing of applications and/or inspection for a right-of-way permit shall be reimbursed to the city. If the city should incur any costs in repairing or replacing any property as a result of the permitted activities, the actual costs of repair and replacement shall be charged to the permittee. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.090 Specifications.

All work to be performed under any right-of-way permit issued under this chapter shall conform to all currently adopted engineering and construction standards of the city. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.100 Highway access management—Administrative process.

Chapter 47.50 RCW, pertaining to highway access management, and Chapters 468-51 and 468-52 WAC, pertaining to implementation of Chapter 47.50 RCW, are adopted by reference as if set forth in full, including all future amendments, additions, renumbering or repeals of the same. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 952 § 1, 1998. Formerly 12.04.095)

12.04.110 Permit exception.

A. 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 city contractor from the requirement to obtain a right-of-way use permit after beginning emergency work in the right-of-way.

B. Permits shall not be required for routine installation, maintenance or construction work performed by city maintenance crews.

C. A right-of-way use permit shall not be required for minor utility maintenance that does not disturb right-of-way or disrupt traffic patterns. No breaking of any asphalt, curb, gutter, or sidewalk is allowed. Some examples of minor utility work include:

1. Street lamp replacement;

2. Accessing existing manholes and vaults;

3. Raising valves;

4. Replacing aboveground meters, transformers, closures, and pedestals. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.100)

12.04.120 Duration and renewal of permits.

A. Right-of-way permits shall be valid for the duration specified in the permit. If continued use of the right-of-way is desired by the permittee after expiration of a permit, an extension of not greater than the duration of the original permit may be applied for, and granted, subject to approval of the director of public works.

B. When a right-of-way permit is issued in conjunction with a building permit or project permit reviewed under Chapter 17.13, the right-of-way permit shall be valid for the duration of the accompanying building permit or project permit. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.130 Performance security.

A. If the director 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 performance security or insurance in a form acceptable to the director for the activities described in the subject permit. The amount of the cash deposit, performance security or insurance shall be determined by the director.

B. 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.

C. In each case where the city requires or allows an applicant to provide a performance security, the director shall determine the type of performance security that will be used. The performance security 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 by state statute.

D. Interest from any interest-bearing form of performance security will accrue to the benefit of the depositor.

E. If, after the date by which the required work or improvements are to be completed under a performance security, the director determines that the work or improvements have not been satisfactorily completed, he/she shall notify the applicant. The notice must state:

1. The work that must be done or the improvement that must be made to comply with the requirements and the performance security; and

2. The amount of time that the applicant has to commence and complete the required work or improvements; and

3. That, if the work or improvements are not commenced and completed within the time specified, the city will use the proceeds of the performance security to have the required work or improvements completed.

F. If the work or improvements covered by the performance security are not completed within the time specified in the notice given under subsection E of this section, the city shall obtain the proceeds of the performance security and do the work or make the improvements covered by the performance security. 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.

G. If at any time the director determines that work or improvements secured under a performance security have created an emergency situation endangering the public health, safety, or welfare, 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 E of this section, the city may use the performance security 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 performance security 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 performance security without prior notification.

H. The applicant is responsible for all costs incurred by the city in doing the work and making the improvements covered by the performance security. The city shall release or refund any proceeds of a performance security remaining after subtracting all costs for doing the work covered by the performance security. The applicant 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.

I. In each case where the city uses any of the proceeds of the performance security, it shall give the applicant an itemized statement of all proceeds and funds used if requested by the applicant. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.140 Hold harmless.

As a condition precedent to 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. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.150 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 two years. Such guarantee may be in the form of a cash deposit or a security device in a form and amount approved by the director of public works. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.160 Inspections.

As a condition precedent to issuance of the permit, each applicant shall be required to consent to inspections by the city. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

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

A. Whenever the director of public works 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 chapter or procedures adopted under this chapter, or other applicable codes or standards, or without a right-of-way permit, the director of public works may order the correction or discontinuance of such condition or any activity causing such condition.

B. The director of public works is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as it 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 ten days of notice, or such other reasonable period as the director of public works 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 city 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 chapter or other city ordinances;

6. Any object or thing which shall occupy any right-of-way without a permit is declared a nuisance. The city may attach a notice to any such object or thing stating that if it is not removed from the right-of-way within twenty-four 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 the city, jointly and severally, by such persons who have been given notice or who own or placed the object or thing 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 chapter and procedures adopted hereunder for securing the correction or discontinuance of any conditions specified by the city. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986)

12.04.180 Revocation of permits.

The director of public works may suspend any right-of-way permit issued whenever:

A. 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 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 of the approved activity indicates that it will likely endanger or be inadequate to protect the public, adjoining properties, the street, or utilities in the street. Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized or directed by the director of public works. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.110)

12.04.190 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 restored to the conditions directed by the department.

B. As a condition for the issuance of any right-of-way use permit, the engineering department may require an applicant to submit a traffic control plan showing the location and number of flaggers, 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. All work proposed on Highway 526 or 525 (Mukilteo Speedway) requires a Washington State Department of Transportation (WSDOT) approved traffic control plan.

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 director of public works 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 of Mukilteo.

D. The contractor shall require all personnel at the work site under their control (including subcontractors and lower tier subcontractors) to comply with the following:

1. To wear reflective vests, except that during daylight hours, clothing of orange, yellow, strong yellow green or fluorescent versions of these colors may be worn in lieu of vests. Flaggers must wear reflective vests and hard hats at all times.

2. During the hours of darkness, to wear vests, white coveralls or either high visibility reflective fluorescent lime-yellow pants with fluorescent orange strip or reflective fluorescent orange pants with fluorescent lime-yellow strip.

3. Reflective vests shall be high visibility lime-yellow in base color with orange-red trim and 3M silver Scotchlite reflective material (or equivalent) or orange-red base color with lime-yellow reflective stripe. Vests shall have two hundred thirty or more square inches of reflective trim as measured on a medium vest. The 3M type 6187 (or equivalent) two-inch-wide lime-yellow reflective stripe can be used as the lime-yellow trim on a red-orange vest. All components to these garments must be visible in three hundred sixty degrees, from all angles and the reflective material visible at a minimum of one thousand feet.

4. Reflective vests, hard hats, white coveralls, rain gear, and other apparel shall be maintained in a neat, clean, and presentable condition.

5. When rain gear is worn during hours of darkness, it shall be white or yellow.

6. The reflective vest shall always be the outermost garments.

7. Exceptions to these requirements are:

a. When personnel are out of view of or not exposed to traffic; or

b. When personnel are inside a vehicle; or

c. Where it is obvious that such apparel is not needed for the employee’s safety from traffic. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.180)

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

A. Whenever it is necessary for the public safety, 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.

B. The owner or operator of any vehicle which 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 cause the right-of-way to be cleaned and the costs thereof shall be charged to the person or persons so responsible. The director of public works has the authority to designate haul routes and time of day for operations involving hauling over public rights-of-way.

C. 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 city 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 director of public works. Upon failure to do so, the city may cause the right-of-way to be cleaned and charge the costs thereof to the person or persons so responsible.

D. Clearing, grading, excavation or fill permits are required for all activities that will involve the movement of fifty cubic yards or more of earth and vegetation. No right-of-way use permit will be required for work behind any improved surface (curbs, streets, sidewalks, ditch lines) when such a clearing, grading, excavation or fill permit has been issued. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.190)

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

Any applicant who questions the specific procedures, requirements, directives or action regarding the issuance and/or enforcement of a right-of-way use permit may request in writing that the mayor grant relief from the requirement or grant an alternative interpretation of the requirement. The mayor shall decide upon such written requests within ten days. Changes to requirements may be granted if they will not impair safety, or if they reduce costs, reduce schedule or improve quality. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 550 § 1 (part), 1986. Formerly 12.04.200)

12.04.220 Violations.

Violations of this chapter shall constitute a civil infraction and be subject to the provisions contained in Chapter 1.32, General Penalties. (Ord. 1329 § 5 (Exh. A) (part), 2013: Ord. 1083 § 16, 2003: Ord. 550 § 1 (part), 1986. Formerly 12.04.210)