Chapter 11.14 RIGHT-OF-WAY USE

The purpose of this chapter is to provide for the public and private use of the public right-of-way, both temporary and semi-permanent, in a manner that supports the adjacent land use or enhances the public use of the right-of-way. Provided, however, that the deployment of small cell and small cell facilities shall be governed by the provisions of Chapter 11.07 OHMC, “Small Cell Deployment – Franchise and Small Cell Permit.” The terms “small cell” and “small cell facilities” are defined in OHMC 19.08.861 and 19.08.862. (Ord. 1840 § 2, 2018; Ord. 1830 § 2, 2018; Ord. 1790 § 2, 2017).

11.14.020 Definitions.

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in plural number include singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.

(1) “Applicant” is any person making written application to the director of development services for a right-of-way use permit hereunder.

(2) “City” is the city of Oak Harbor.

(3) “City council” or “council” is the city council of the city of Oak Harbor.

(4) “Director of public works” means the director of the public works department of the city of Oak Harbor or her/his authorized designee.

(5) “Director of development services” means the director of development services department of the city of Oak Harbor or his/her authorized designee.

(6) “Sidewalk display” means a display where any goods or articles are sold or offered for sale at retail or are displayed upon the public streets or rights-of-way of the city.

(7) “Sidewalk cafe” means an area adjacent to and directly in front of a street level eating or drinking establishment located within the sidewalk area of the public right-of-way used exclusively for dining, drinking and pedestrian circulation. The encroachment area of a sidewalk cafe may be separated from the remainder of the sidewalk by railings, fencing or landscaping planter boxes or a combination thereof.

(8) “Permit” means a “right-of-way use permit” issued by the department of development services.

(9) “Planting strip” means that portion of the right-of-way, if any, between a street and the adjacent sidewalk.

(10) “Right-of-way” means any street, highway, sidewalk, alley, avenue, easement made to the city for public use, or other public way in the city.

(11) “Sidewalk” means that portion of the right-of-way, if any, which is designed for pedestrian use, adjacent and parallel to a street. “Sidewalk” includes the area which would otherwise be a planting strip, if the area is either covered with cement or is otherwise used for pedestrian travel.

(12) “Street” means that portion of the right-of-way, if any, which is used for vehicular travel, including alleys.

(13) “Unopened right-of-way” means a right-of-way which is not used, improved or formally opened for either pedestrian or vehicular travel. (Ord. 1790 § 2, 2017).

11.14.030 Obstruction of streets – Prohibited.

Except as may be specifically provided by this chapter, it is unlawful to erect, maintain or allow to remain on any street in the city a permanent or temporary structure or thing which in any way obstructs, hinders, jeopardizes, injures or delays the use of the street for either vehicular or pedestrian travel; provided, that the city may close any street or alley at any time. The street or alley may be closed on a temporary basis when the director of public works, the chief of police and/or the fire chief determines such closure to be necessary to protect the public health, safety or welfare. (Ord. 1790 § 2, 2017).

11.14.040 Use of right-of-way – Permitted exceptions.

Notwithstanding the provisions of OHMC 11.14.030, construction or excavation work permitted through Chapter 11.08 OHMC and/or special events permits granted under Chapter 5.55 OHMC shall be exempt from the terms of this chapter. (Ord. 1790 § 2, 2017).

11.14.050 Use of right-of-way – Permit required.

Notwithstanding the provisions of OHMC 11.14.030, the following right-of-way uses may be permitted if a right-of-way use permit is obtained from the city under this chapter; provided, that the director of public works and the chief of police shall determine what traffic barricades, if any, are necessary, and the city will provide such barricades and shall be reimbursed therefor by the applicant:

(1) Temporary devices such as scaffolding, barricades and/or pedestrian walkways, which may be permitted under certain conditions as specified by the city engineer, where the right-of-way use is necessary to improve the safety of maintenance or construction work on private property and where a right-of-way excavation permit is not required. (Ord. 1790 § 2, 2017).

11.14.060 Obstruction of sidewalks and planting strips prohibited.

Except as may be specifically provided by this chapter, it is unlawful to erect, maintain or allow to remain on any sidewalk or planting strip of the city any temporary or permanent structure or thing which in any way obstructs, hinders, jeopardizes, injures or delays the use of the sidewalk or planting strip for pedestrian traffic; or hinders or obstructs the use of the adjacent street for vehicular traffic, including, but not limited to, structures or devices used for advertising an adjacent business, permanent landscaping or the use of the sidewalk for sale or display of merchandise, except as otherwise provided by this chapter. (Ord. 1790 § 2, 2017).

11.14.070 Use of sidewalks and planting strips – Exceptions without permit.

The following uses shall be permitted on sidewalks or planting strips without a permit; provided, that the uses do not violate any other law, ordinance, standard, or policy:

(1) Merchandise being displayed for sale or moved into or out of an adjacent business; provided, that such merchandise does not remain on the sidewalk or planting strip for more than eight hours;

(2) Planters and other landscaping placed by the city;

(3) Benches and bicycle racks placed by the city;

(4) Flagpoles or standards therefor placed by the city;

(5) Traffic-control devices placed by the city;

(6) Refuse containers and materials set out for refuse and recyclables collection, either placed directly by the city, or where the location of the container is on a sidewalk or planting strip as required by the city;

(7) Newspaper dispensers or news racks;

(8) Mailboxes;

(9) Any other obstruction sought to be placed upon a sidewalk by the city for a public purpose. (Ord. 1790 § 2, 2017).

11.14.080 Use of sidewalks or planting strips – Permit required.

Notwithstanding the provisions of this chapter, the following uses of sidewalks or planting strips may be permitted, if a permit therefor is obtained from the city under this chapter:

(1) Benches;

(2) Litter receptacles;

(3) Clocks;

(4) Bicycle racks;

(5) Landscaping including street trees planted in accordance with city standards;

(6) Additions to the facades of buildings existing on the effective date of this chapter, which buildings are built up to the right-of-way line of the public street; provided, that such addition shall not exceed 12 inches in width;

(7) Sidewalk cafes; provided, that such permit shall last for one calendar year and must be renewed each year;

(8) Other sidewalk or planting strip obstructions determined by the director to be similar in nature to those listed above;

(9) Fences, retaining walls, terracing, and other similar structures. (Ord. 1790 § 2, 2017).

11.14.090 Permit – Processing.

(1) Application for a permit for street, sidewalk or planting strip uses under the sections of this chapter shall be made to the development services department upon a form provided by that department.

(2) The application for a permit shall contain such information as is required by the development services department, including, but not limited to:

(a) A description of the obstruction;

(b) Drawings and descriptions for the use, sufficient so that its compliance with this chapter may be reviewed by the development services department;

(c) A description of the method of compliance with the standards for installation for sidewalk uses established by provisions of this chapter;

(d) A traffic and/or pedestrian control plan.

(3) Upon receipt of an application, the development services department shall forward the application to such city departments as the development services director shall deem appropriate for comment. (Ord. 1790 § 2, 2017).

11.14.100 Permit – Issuance by development services department.

(1) For a permit sought under this chapter, the development services department shall determine whether the application complies with the standards and terms of this chapter. If the application does comply with this chapter and is in the public interest, the development services department may issue a permit for the placement of an obstruction.

(2) If the development services department denies the permit, it shall so indicate to the applicant in writing, stating the reasons for the denial. (Ord. 1790 § 2, 2017).

11.14.110 Application – Fee.

A permit fee shall be charged by the city for the issuance of a right-of-way use permit which shall be in addition to all other fees for permits. The right-of-way use permit fee shall be per the master fee schedule adopted by resolution of the city council. (Ord. 1790 § 2, 2017).

11.14.120 Uses – Standards.

Each use proposed to be placed upon a sidewalk, street or planting strip of the city shall comply, at a minimum, with the following standards:

(1) Americans with Disabilities Act requirements.

(2) The location of the use shall be consistent with the paramount right of the public to use the street, sidewalk or planting strip for transportation purposes.

(3) The location of the use, and/or the use itself, shall be adequately lighted for night visibility, if the use area is not lighted and pedestrians are present at night.

(4) The location of the use shall not constitute a traffic hazard either by itself, or by its effect upon the visibility of persons using the street or sidewalk.

(5) If locations for the particular type of use are required by the existence of other structures, use, ordinances or other regulations, the use shall be located where so required.

(6) The use shall not be permitted for longer than the period necessary for accomplishing the proposed purpose for such use.

(7) The applicant must demonstrate that it is necessary to use the public street, sidewalk or planting strip, and that there is no other means available to accomplish the desired purpose, except by the use of the public right-of-way, street or planting strip.

(8) No one shall plant in any public right-of-way any tree the roots of which cause injury to the sewers, water mains, sidewalks or pavements, the height of which interferes with overhead utility wires or which breed disease dangerous to other trees or to the public health or allow to remain in any public right-of-way any planted tree which has become dead or is in such condition as to be hazardous to the public use of the street and/or sidewalk, and any such trees now existing in any such planting strip or abutting street area shall be removed or properly pruned at the expense of the abutting property owner as may be directed by the city. No tree shall be planted within two feet of any sidewalk or pavement, except as may be otherwise approved.

(9) No flowers, shrubs or trees shall be allowed to overhang or prevent the free use of the sidewalk or roadway, or street maintenance activity or utility use of the street except that the same may extend over the sidewalk when kept trimmed to a height of seven feet above same, and 15 feet above arterials and 14 feet above all other roadways. Trees so placed shall also be trimmed so as to remain below power lines if present. The city reserves the right to trim the encroaching foliage and assess the costs against the permittee, should permittee fail to properly maintain flowers, shrubs or trees. (Ord. 1790 § 2, 2017).

11.14.130 Permit – Conditions.

The following shall constitute minimum conditions to be applied to the permit:

(1) The applicant for a permit shall execute a hold-harmless guaranty to the city, agreeing to hold the city harmless from and defend the city against any causes of action for personal injury or property damage arising out of, or in any way connected with, the placement of the obstruction on the city street, sidewalk or planting strip.

(2) The applicant shall provide and maintain in force a certificate of insurance, or a bond of like amount, with the city named as an additional insured, insuring against property damage or personal injury, with limits as recommended by the city’s insurance provider, risk pool or city attorney, except for benches, litter receptacles, bicycle racks, and private planters, other landscaping, fences, walls and others so exempted by the director of development services.

(3) The property owner or applicant shall maintain the obstruction, in compliance with the standards and conditions imposed upon the placement of the obstruction by the city. Maintenance of the obstruction shall include the removal of litter and/or debris which may accumulate on or around the obstruction.

(4) For permanent structures placed in the right-of-way including, but not limited to, fences higher than 30 inches, rockeries, walls, stairs and ramps, the applicant (property owner) for a permit shall execute an “agreement to remove encroachment within public right-of-way.” Such agreement shall guarantee removal of the encroaching improvements upon public rights-of-way within 60 days’ written notice from the director of development services and shall be recorded by the city with the county auditor as an encumbrance on the property adjoining the public right-of-way. Such work shall be done in accordance with the requirements deemed necessary by the director of public works and at the cost of the property owner. If the obstruction is not removed, then the obstruction shall be declared a nuisance. (Ord. 1790 § 2, 2017).

11.14.140 Permit revocation.

Any permit issued pursuant to this chapter is subject to revocation upon written notification by the city development services department at any time, upon a determination that the use is no longer consistent with public purpose, is encompassing an area larger than permitted, is inconsistent with the permit and/or its conditions, is a safety hazard or is a public nuisance. (Ord. 1790 § 2, 2017).

11.14.150 Prohibited uses – Declared nuisance.

All uses not in conformance with the terms of this chapter are hereby declared to be nuisances, and such uses may be abated in accordance with the procedures of Chapter 6.20 OHMC. (Ord. 1790 § 2, 2017).

11.14.160 Chapter not applicable to city work.

The provisions of this chapter shall not be applicable to any excavation work under the direction of competent city authorities by employees of the city or by any contractor of the city performing work for and on behalf of the city necessitating openings or excavations in streets. (Ord. 1790 § 2, 2017).

11.14.170 Insurance.

A permittee shall procure and maintain for the duration of the permitted operation insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the permittee, their agents, representatives, employees or subcontractors.

The permittee shall provide a certificate of insurance evidencing coverage in the type and amount recommended by the city’s insurance provider or the city attorney.

The city shall be named as an additional insured on the CGL insurance policy, including product/completed operations, as respect work performed by or on behalf of the permittee and a copy of endorsement ISO Additional Insured-State or Political Subdivisions-Permit CG 20 12 05 09 or substitute form providing equivalent or better coverage, naming the city as additional insured shall be attached to the certificate of insurance. (Ord. 1790 § 2, 2017).

11.14.180 Liability of city.

This chapter shall not be construed as imposing upon the city or any official or employee any liability or responsibility for damages to any person injured by the performance of any right-of-way work for which a right-of-way permit is issued hereunder; nor shall the city or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder, the issuance of any permit or the approval of any right-of-way work. (Ord. 1790 § 2, 2017).

11.14.190 Penalties.

Any person violating any of the provisions of this chapter shall be deemed guilty of a Class 1 infraction as defined in OHMC 1.28.020. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. (Ord. 1790 § 2, 2017).

11.14.200 Severability.

If any section, paragraph, subsection, clause or phrase of this chapter is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this chapter. The city council hereby declares that they would have passed the ordinance codified in this chapter and each section, paragraph, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, paragraphs, clauses or phrases be unconstitutional or invalid. (Ord. 1790 § 2, 2017).

11.14.210 Effective date.

The ordinance codified in this chapter shall be in full force and effect five days after publication. (Ord. 1790 § 2, 2017).