Chapter 12.24 RIGHT-OF-WAY USE CODE

The purpose of this chapter is to regulate the use of the public right-of-way in the interest of public health, safety, welfare and convenience, and provide for the operation and protection of public works infrastructure and for fees, charges and procedures required to administer the permit process. (Ord. 1220 § 1 (part), 2004).

12.24.020 Territorial application.

This chapter and the procedures adopted herein shall be in effect throughout the city of North Bend. (Ord. 1220 § 1 (part), 2004).

12.24.030 Definitions.

As used in this chapter, unless the context or subject matter clearly requires otherwise, the words or phrases defined herein shall have the following indicated meanings:

A. “Abutting property” shall mean all property having a frontage upon any public right-of-way.

B. “Applicant” shall mean any owner or developer, or duly authorized agent of such owner or developer, who has submitted an application for a permit under this chapter.

C. “City” shall mean the city of North Bend.

D. “City council” shall mean the city of North Bend council acting in its official capacity.

E. “Curb” shall mean a cement, concrete, or asphaltic concrete raised structure designed to delineate the edge of the street and to separate the vehicular area of the public right-of-way from the area provided for pedestrians.

F. “Department” shall mean the city of North Bend public works department.

G. “Deposit” shall mean any bond, cash deposit, or other security provided by the applicant in accordance with the North Bend Municipal Code.

H. “Developer” shall mean the owner and/or building permit applicant who is required to construct street system and/or utility system improvements, which abut the development site.

I. “Director” shall mean the director of the public works department or his or her designee.

J. “Emergency” shall mean any unforeseen circumstance or occurrence, the existence of which constitutes an immediate danger to persons or property, or which causes interruption of utility or public services.

K. “Frontage” shall mean that portion of the development site abutting public right-of-way; provided, however, in the case of development sites which are not substantially rectangular, such as “pipe-stem” lots, the frontage shall be equal to the greatest linear distance of the lot which is parallel to the public right-of-way. In the case of corner lots, “frontage” shall mean any portion of the development site abutting any public right-of-way.

L. “Fronting” shall mean abutting a public right-of-way or public rights-of-way, or if a parcel is accessed from a public right-of-way by means of an easement, “fronting” shall mean the side of the property facing the right-of-way to which the property accesses.

M. “NBMC” shall mean the North Bend Municipal Code adopted by the city council.

N. “Person” shall mean any person, corporation, partnership, municipal excavator, or any governmental agency.

O. “Private use” shall mean use of the public right-of-way – other than as a thoroughfare for ordinary transit of vehicles, pedestrians, equestrians or other public uses – for the benefit of a particular person or entity.

P. “Relocation” shall mean removal of existing facilities with subsequent reinstallation at an adjacent location, generally necessitated by roadway improvements or widening projects.

Q. “Restoration” shall mean all work including, but not limited to, backfilling, compacting, replacing street pavement, replacing sidewalks, or other public right-of-way to like-new condition in the manner prescribed by ordinance or regulation.

R. “Right-of-way” shall mean all public streets, alleys and property granted, reserved for, or dedicated to public use for streets and alleys, together with all public property granted, reserved for, or dedicated to, public use including, but not limited to, walkways, sidewalks, trails, parking, shoulders, drainage facilities, bike ways and horse trails, whether improved or unimproved, including the air rights, subsurface rights, and easements related thereto.

S. “Sidewalk” shall mean that property between the curb and the abutting property, set aside and intended for the primary use of pedestrians, but may include mixed uses such as pedestrians and bicyclists, improved by paving with cement concrete or asphaltic concrete, including all driveways.

T. “Street” shall mean any street, road, boulevard, alley, lane, way or place, or any portion thereof within the city limits. (Ord. 1220 § 1 (part), 2004).

12.24.040 Powers of director.

The director shall have the following powers to:

A. Prepare and adopt written administrative procedures as needed to implement this chapter and to carry out the responsibilities of the department.

B. Approve the issuance of any permit applied for under the provisions of this chapter.

C. Deny the issuance or renewal of any permit applied for, or to revoke, suspend, or otherwise restrict any permit issued under this chapter.

D. Order the correction or discontinuance of any condition, activity, or use of any right-of-way that violates or is contrary to any provision of this chapter or procedures adopted under this chapter or other applicable codes or standards, or that is being conducted without a right-of-way use permit.

E. Advise the city council, administration, and other city departments on matters relating to use of the rights-of-way. (Ord. 1220 § 1 (part), 2004).

12.24.050 Appeals.

A decision of the director made in accordance with this chapter shall be final. Any appeal to be timely must be served with the city clerk and director within 14 calendar days of the decision of the director and shall be subject to hearing examiner review within 60 calendar days. (Ord. 1220 § 1 (part), 2004).

12.24.060 Permit requirements.

A. It is unlawful for anyone except the city public works department or its agent to perform work of any kind in a public right-of-way, or to make private use of any public right-of-way without a right-of-way use permit issued by the city.

B. The decision by the city to issue a permit shall consider without limitation the following evaluation criteria:

1. The capacity of the public right-of-way to accommodate the facilities or structures proposed to be installed in the public right-of-way;

2. Any damage or disruption to public or private facilities, improvements, or landscaping previously existing in the public right-of-way;

3. The public interest in minimizing the cost and disruption of construction caused by numerous excavations of the public right-of-way;

4. The extent of time requested for the permit and the relation to future potential capital improvement projects or public uses of the right-of-way; and

5. For Type C permits, proposed improvements by the applicant that will enhance the public right-of-way, including but not limited to landscaping and signage.

C. The issuance of a permit for use of a right-of-way shall be subordinate to the use and needs of the city and the general public, whether such needs are temporary or permanent, or for public or private purposes (i.e., utility construction work in the right-of-way by private service provider), and is a grant of a temporary revocable privilege to use a portion of the public right-of-way to serve and benefit the general public. The applicant shall have the burden to prove that any proposed use will enhance and further the public interest consistent and not in conflict with the existing or future use of the right-of-way by the general public and the city for other authorized uses and activities.

D. This permit is in addition to and does not replace any franchise requirements for the use of public rights-of-way by private utilities and service providers. (Ord. 1220 § 1 (part), 2004).

12.24.070 Right-of-way use permits.

A. Type A – Short-Term.

1. Type A permits may be issued for use of a right-of-way up to 72 continuous hours, and which do not involve any 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;

e. Processions;

f. Nonmotorized vehicle races;

g. Street dances;

h. Street runs;

i. Fairs;

j. House or large structure moves;

k. Temporary sale of goods; and

l. Temporary street closures.

B. Type B – Disturbance of City Right-of-Way.

1. Type B permits may be issued for use of a right-of-way, for a period up to 180 continuous days, for activities that may alter the appearance of or disturb the surface or subsurface of the right-of-way.

2. Type B permits include but are not limited to:

a. Boring;

b. Curb cuts/driveways;

c. Paving;

d. Drainage facilities;

e. Landscaping;

f. Sidewalks;

g. Street trenching;

h. Temporary use of right-of-way for private construction related activities on adjoining properties; and

i. Utility installation, repair, replacement.

C. Type C – Long-Term.

1. Type C permits may be issued for use of a right-of-way for activities occurring for extended periods of time and which do not physically disturb the right-of-way.

2. The use of the right-of-way for structures, facilities, and other uses that involve long-term commitments require this type of permit.

3. Type C permits include, but are not limited to:

a. Bus shelters and stops;

b. Sidewalk cafes;

c. Special and unique structures, such as awnings, benches, clocks, decorations, flagpoles, fountains, kiosks and street furniture;

d. Newspaper sales; and

e. Recycling and solid waste facilities.

4. Private long-term uses authorized under Type C permits shall not restrict or in any way limit future public uses of the right-of-way.

5. Other than those uses identified in subsection (C)(3) of this section, Type C permits related to the long-term operation of businesses shall be reviewed by the city council prior to issuance.

6. The director may, at his or her discretion, waive Type C permit fees if the applicant can show that the use or activity in the right-of-way is for ordinary business purposes and that such business use or activity has utilized the right-of-way historically or customarily and has a minimal impact to public health and safety. (Ord. 1220 § 1 (part), 2004).

12.24.080 Application contents.

A. To obtain a right-of-way use permit, the applicant shall submit an application in the format and manner specified by the director.

B. Every application shall contain:

1. The name, address, email, telephone and facsimile number of the applicant. Where an applicant is not the owner of the facility to be installed, maintained or repaired in the public right-of-way, the application shall also include the name, address, email, telephone and facsimile number of the owner;

2. A description of the location, proposed use of the public right-of-way, method of excavation, surface and subsurface area of the proposed excavation, and method of restoration;

3. Traffic control plan, as may be required by the director, in conformance with this code and the latest edition of the Manual of Uniform Traffic Control Devices, 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;

4. A plan showing the proposed location and dimensions of the excavation; the facilities to be installed, maintained, or repaired in connection with the excavation; and such other details as the department may require;

5. A copy or other documentation of the franchise, easement, encroachment permit, license or other legal instrument that authorizes the applicant or owner to use or occupy the public right-of-way for the purpose described in the application. Where the applicant is not the owner of the facility or facilities to be installed, maintained or repaired, the applicant must demonstrate – in a form and manner specified by the director – his authorization to act on behalf of the owner;

6. The proposed start date of the use or excavation;

7. The proposed duration of the use or excavation, which shall include the duration of the restoration of the public right-of-way physically disturbed by the excavation;

8. Any other information that may be reasonably required by the director based on the particular application at issue; and

9. An application fee as required by NBMC 12.24.100. (Ord. 1220 § 1 (part), 2004).

12.24.090 Permit – No transfer or assignment.

Permits shall not be transferable or assignable without the city’s prior written consent, and work shall not be performed under a permit in any place other than that specified in the permit. Nothing herein contained shall prevent a permittee from subcontracting the work to be performed under a permit; provided however, that the holder of the permit shall be and remains responsible for the performance of the work under the permit, and responsible for all bonding, insurance and other requirements of this chapter and under said permit. (Ord. 1220 § 1 (part), 2004).

12.24.100 Permit fees and charges.

The fee for a permit shall be the total cost of labor and materials to the city for processing, reviewing, and issuing the permit, and field inspection of the work, as necessary. The fee shall be paid in advance of the issuance of the permit.

A. Application Fee. A nonrefundable base application fee as established by the taxes, rates and fees schedule adopted by ordinance shall be charged for each right-of-way use permit application or renewal that is accepted for processing. This fee covers the costs of initial processing, counter service and record keeping. The application fee shall be the same for all types of right-of-way use permits. Pursuant to NBMC 12.24.070(C)(6), the director may waive the fee for certain permit applications.

B. Processing of Application Fee. A fee for the processing of applications or renewals shall be charged. The amount of the fee shall be determined based upon the time and cost required to review, inspect, research and coordinate the applicants’ data for each permit application.

C. Excess Inspection Costs. The city may incur extra costs of inspection for certain permits that require more than the usual number of inspections. These costs may be incurred because of situations related to observed quality of work, traffic problems, schedule problems and cooperation of the permittee. Excess inspection fees will be charged based on the hourly rate of actual costs incurred by the city to make the excess inspections.

D. House Move Charges. When a house move permit is issued the city shall impose a charge based on the actual cost to compensate for its time and expense. These costs may include street crews, signal crews and police, if required to assist in the move. A minimum fee will be charged at the time of permit issuance based on one hour of city two-person crew time. Costs for damage to city property occurring as a result of the move, or assistance in the house move by city crews in excess of one hour, shall be billed to the house mover and permittee directly.

E. 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.

F. City Cost Reimbursement. When the city performs work in the right-of-way and finds it necessary to maintain, support, or move a telecommunications provider’s or franchisee’s equipment and/or facilities in order to protect such equipment or facilities or for any other reason, the city’s costs associated therewith will be billed to that telecommunications provider or franchisee and must be paid within 30 days from the date of billing. Each telecommunications provider and franchisee shall be responsible for the cost of repairing any equipment or facilities in the right-of-way which such telecommunications provider or franchisee may damage. Each telecommunications provider and franchisee shall be responsible for the cost of repairing any damage to the equipment of another telecommunications provider or franchisee caused during the city’s response to an emergency occasioned by that telecommunications provider or franchisee’s actions.

G. Waiver of Fees. Franchised utilities, which must apply for permits because of city-initiated construction projects, may be granted a waiver by the director of normal permit fees. This provision only applies to work that would not otherwise have been done by the utility. Waiver of certain fees is also permitted under NBMC 12.24.070(C)(6).

H. Festival at Mount Si. Fees for the Festival at Mount Si committee are waived.

I. Annual Fee. Each authorization granted under this chapter is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the city’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the public rights-of-way on behalf of the public and existing or future users. (Ord. 1237 § 8 (part), 2005: Ord. 1220 § 1 (part), 2004).

12.24.110 Revocation of permits.

A. The director may revoke or suspend any permit issued under this chapter whenever:

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

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

3. The permittee has misrepresented a material fact in applying for a permit (a material fact is a fact which, had the truth been known at the time of the issuance of the permit, the permit would not have been granted).

B. Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized by the director.

C. Continued activity following revocation or suspension under this section shall subject each and every violator to the maximum penalties provided by this chapter, with every day constituting a new violation. (Ord. 1220 § 1 (part), 2004).

12.24.120 Renewal of permits.

Each permit shall be of a duration as specified on the permit not to exceed five years. A permit may be renewed for a similar duration at the discretion of the director, if requested by the permit holder before expiration of the permit; provided however, that the use or activity is progressing in a satisfactory manner as reasonably determined by the director. There are no limits to the number of renewals allowed. (Ord. 1220 § 1 (part), 2004).

12.24.130 Permit processing exceptions – Emergencies.

A right-of-way use permit shall not be required of utilities or franchised utilities prior to responding to emergencies that require work in the right-of-way, such as water or sewer main breaks, gas leaks, downed power lines or similar emergencies; provided, that the department shall be notified by the responding utility or city contractor verbally or in writing, as soon as practicable following onset of an emergency. Nothing herein shall relieve a responding utility or city contractor from the requirement to apply for a right-of-way use permit within 48 hours after beginning emergency work in the right-of-way. (Ord. 1220 § 1 (part), 2004).

12.24.140 Permit exception.

No permits shall be required for maintenance and construction work performed by city maintenance and operation crews, or their agents/contractors working on city-owned capital improvement projects. (Ord. 1220 § 1 (part), 2004).

12.24.150 Guarantee.

When there is a need to ensure conformance with the city’s development standards, city or state construction standards, or other requirements, applicants for Type B and C permits shall be required to provide a guarantee of workmanship and materials for a period of one or more years as determined by the 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. 1220 § 1 (part), 2004).

12.24.160 General penalties.

A. Civil Penalty.

1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business, violating or failing to comply with any of the provisions of this chapter shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000 per day for each violation from the date set for compliance until compliance with the order is achieved.

2. In addition to any penalty that may be imposed by the city, any person violating or failing to comply with any of the provisions of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.

3. The penalty imposed by this section shall be collected by civil action brought by the city. The city administrator or designee shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the city manager or designee, take appropriate action to collect the penalty.

4. The violator may show as full or partial mitigation of liability:

a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the reasonable control of the violator.

B. Additional Relief. The city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this section, violation of the terms of this chapter may also result in the revocation of any authorization, approval, lease, or permit issued or granted hereunder. (Ord. 1220 § 1 (part), 2004).

12.24.170 Insurance.

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 an assurance device or insurance in a form acceptable to the director for the activities described in the subject permit. The amount of the cash deposit, assurance device, or insurance shall be determined by the director. (Ord. 1220 § 1 (part), 2004).

12.24.180 Hold harmless.

As a condition to the issuance of any permit under this chapter, the permittee shall be required to execute a written agreement to forever hold and save the city free and harmless from any and all claims, actions or damages of every kind and description that may accrue to or be suffered by any person by reason of the use of such public place or the construction, existence, maintenance, use or occupation of any such structure, services, fixtures, equipment and/or facilities on or in a public place pursuant to this chapter. In addition, such agreement shall contain a provision that the permit is wholly of a temporary nature, and that it vests no permanent right whatsoever. (Ord. 1220 § 1 (part), 2004).

12.24.190 Inspections.

As a condition of issuance of any permit or authorization that requires approval of the department, each applicant shall be required to consent to inspections by the department or any other city department. (Ord. 1220 § 1 (part), 2004).

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

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 chapter, procedures adopted under this chapter 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 pursuant to this code. (Ord. 1220 § 1 (part), 2004).

12.24.210 Protection of adjoining property – Access.

The permittee shall at all times and at the permittee’s expense preserve and protect from injury adjoining property by complying with such measures as the director or designee may deem reasonably suitable for such purposes. The permittee shall at all times maintain access to all property adjoining the excavation or work site. (Ord. 1220 § 1 (part), 2004).

12.24.220 Preservation of monuments.

The permittee shall not disturb any survey monuments or markers found on the line of excavation work until referenced to other temporary monuments and until ordered to do so by the director. All street monuments, property corners, bench marks, and other monuments disturbed during the progress of the work shall be replaced by a licensed surveyor, at the expense of the permittee, to the satisfaction of the director or designee. (Ord. 1220 § 1 (part), 2004).

12.24.230 Restoration of the public right-of-way.

A. Restoration. In any case in which a sidewalk, street, or other public right-of-way is or is caused to be excavated, the owner and permittee shall restore or cause to be restored such excavation in the manner prescribed by orders, regulations, and department standards.

B. Backfill, and Replacement of Pavement Base. Backfilling in a right-of-way opened or excavated pursuant to a permit issued under the provisions of this chapter shall be compacted to a degree equivalent to that of the undisturbed ground in which the excavation was begun, unless the director determines a greater degree of compaction is necessary to produce a satisfactory result. All backfilling shall be accomplished according to city standards and specifications. All backfills shall be inspected and approved by the director or designee prior to any overlaying or patching. Compaction tests, paid for by the permittee, shall be required in accordance with the latest edition of the WSDOT Standard Specifications for Road, Bridge and Municipal Construction.

C. Pavement Restoration. The permittee shall restore the surface of any public right-of-way to its original condition and replace any removed or damaged pavement with the same type and depth of pavement as that which is adjoining, including the gravel base material. All restoration shall conform to city standards and shall be accomplished within the time limits set forth in the permit. The developer/ owner, or its heirs, beneficiaries, or assigns shall be responsible for the maintenance of the patch until such time as the street, including the patch, is repaved or reconstructed by others. The developer/owner shall facilitate the maintenance of said patch when so required by the director. (Ord. 1220 § 1 (part), 2004).

12.24.240 As-builts.

The applicant, upon completion of the installation of any Type B or Type C permitted improvement to the right-of-way, shall provide an as-constructed drawing of the improvements on no larger than 24-inch by 36-inch mylar and on disk in AutoCAD format in accordance with NBMC 20.02.006. (Ord. 1220 § 1 (part), 2004).