Chapter 12.20
RIGHT-OF-WAY USE CODE
Sections:
12.20.020 Territorial application.
12.20.040 Application and processing of permits.
12.20.070 Revocation of permits.
12.20.110 Right-of-way restoration.
12.20.120 Repair of damage to public right-of-way.
12.20.010 Purpose.
It is the purpose of this chapter to provide for the issuance of right-of-way use permits in order to regulate activities within rights-of-way in the city in the interest of public health, safety, and welfare; and to provide for the fees, charges, security devices, and procedures required to administer the permit process, to include the following specific purposes. This chapter is enacted to protect and preserve the public health, safety, and welfare. The provisions hereof shall be liberally construed for the accomplishment of these purposes. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.020 Territorial application.
This chapter and the procedures adopted under this chapter shall be in effect throughout the city, and shall include city streets designated as parts of the state highway system, but shall not include fully controlled limited access highways. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.030 Permit required.
A. It is unlawful for anyone to make private use of any public right-of-way without a right-of-way use permit issued by the city, or to use any right-of-way without complying with all provisions of a permit issued by the city, unless such private use falls within the designated exceptions set forth in this chapter. For purposes of this chapter, “private use” means any use of the right-of-way other than ordinary travel by pedestrians and vehicles.
B. Additional permits for any use may be required by other city codes or ordinances. The city does not waive its right to any right-of-way by issuance of any permit.
C. Right-of-way permits shall be required for all the following uses:
1. Class 1—Short-Term Maintenance Permits. Short-term occupancy of adjacent right-of-way when performing maintenance such as power washing, painting, window or door replacements, awning repair and replacement, exterior siding repair or replacement, installation or repair of business signs, re-roofs, or any work requiring temporary placement of dumpsters, cranes, boom trucks, or construction materials. Duration: ninety days from issuance.
2. Class 2—Temporary Construction Permits. Construction work that temporarily alters or disturbs the right-of-way, including boring, culverts, curb cuts, paving, drainage facilities, driveways, fences, landscaping, sidewalks, street trenching, and utility installation, repair, or replacement. Duration: one hundred eighty days from issuance.
3. Class 3—Fixture and Encroachment Permits. Construction work that alters or installs a fixture or encroachment in the right-of-way on a long-term or permanent basis, including air rights and aerial facilities; bus shelters and stops; access to construction sites; loading zones; newspaper sale, distribution, and storage facilities; recycling facilities; sales structures; sidewalk cafes; fixtures or encroachments such as awnings, benches, clocks, decorations, flagpoles, fountains, kiosks, marquees, banners, mailboxes, and street furniture; underground rights; utility facilities; and waste facilities. Duration: three hundred sixty days from issuance.
4. Class 4—Heavy Right-of-Way Use Permits. Uses that have the potential to damage the surface or subsurface of the right-of-way or facilities installed in the right-of-way, including haul roads, which shall be defined as roads used for frequent hauling involving an average of six or more vehicles trips per hour during any eight-hour period in one day; and any hazardous waste or oversized load hauling. Duration: as needed. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.035 Sidewalk cafes.
A. Purpose. To establish the process and conditions by which sidewalk cafe operations will be permitted within the public right-of-way.
B. Scope. All sidewalk cafes located wholly or partially within the public right-of-way.
C. Policy—Conditions. It shall be the policy of the city of Shelton to allow the operation of sidewalk cafes under the following conditions:
1. The use will not unreasonably impair public passage.
2. Notice of proposed use must be given to all property owners and street-level tenants on the affected block face. Prior to approval, a list of owners so notified and verification of same to be furnished to the city.
3. Use will cease and desist upon written notification from city if said use is determined to be detrimental to public interests.
4. Applicant shall maintain area free of litter (including wind-blown litter over surrounding area).
5. Applicant shall maintain liability insurance as outlined below.
6. Applicant shall execute a hold harmless agreement as attached to the ordinance codified in this section.
7. Use shall be limited to that portion of right-of-way abutting applicant’s property not reserved for roadside features (parking meters, bike racks, lights and trees) or pedestrian passage. A minimum clearance of four feet from the curb face shall be reserved for roadway side features and pedestrian passage.
8. Alcohol may be served only if the proper authorization has been obtained from the Washington State Liquor Control Board.
D. Procedure.
1. Application shall be made at the public works/engineering department on a form furnished (revocable encroachment permit) including a scaled drawing showing the existing sidewalk, all existing obstructions to the sidewalk and the area proposed for use as a sidewalk cafe.
2. Applicant shall furnish proof of insurance.
3. Applicant shall execute hold harmless agreement.
4. Applicant shall furnish list of property owners that have been notified and verification of said notice.
5. Applicant shall note hours and dates of operation on application.
6. The public works/engineering department will approve said permit after the above criteria are met.
E. Insurance. An applicant for a permit for a sidewalk cafe shall, prior to issuance of such a permit, provide and maintain in full force and effect, while the permit is in effect, public liability insurance in the amount of one million dollars to cover potential claims for bodily injury, death or disability and for property damage which may arise from or be related to the use of sidewalk area for sidewalk cafe purposes, naming the city of Shelton as an additional insured. The city shall be notified thirty days in advance of cancellation or expiration of said insurance. (Ord. 1920-0418 § 1, 2018)
12.20.040 Application and processing of permits.
A. To obtain a right-of-way use permit, the applicant shall file an application with the department of public works and pay required fees.
B. The city engineer or designee shall examine each application submitted for review and approval to determine if it complies with the applicable provisions of this chapter and procedures adopted under this chapter. Other departments that have authority over the proposed use or activity may be requested to review and approve or disapprove the application. The city engineer or designee 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 city engineer or designee finds that the application conforms to the requirements of this chapter and procedures adopted under this chapter 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 the Washington State Department of Transportation, or the city planning, building, fire, or police departments, the city engineer or designee shall 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.
C. Permit applications will be submitted at least fourteen days before the planned need for the permit, or thirty days for Class 4 permits, as defined in Section 12.20.030(C)(4), when required by the city engineer. If unforeseen conditions require expedited processing, the city will attempt to cooperate, but additional fees to cover additional costs to the city may be charged.
D. Daily Use Fee. Class 4 permits shall include a fee for each day (or part thereof) for use of the right-of-way. The daily fee shall be calculated based on number and length of vehicle trips on city streets and the licensed or other permitted maximum weight of the haul vehicle.
E. Reimbursement of Actual Expenses. When a permit is issued, the city may impose a charge based on the actual cost to compensate for its time and expenses. These costs may include street crews, signal crews, and police, if required to assist in the activity. A refundable deposit or other security device may also be required. Costs of damage to city property, or expense of assistance by city employees, may be deducted from the deposit, charged against the security device, or billed to the permittee directly.
F. 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 shall be charged to the permittee. These charges will be for the actual costs to the city.
G. Utilities shall be charged at an hourly rate for city inspections and other services pursuant to the adopted fee schedule.
H. Waiver of Fees. Franchised utilities which must apply for permits because of city-initiated construction projects may be granted a waiver by the city engineer of normal permit fees. This provision shall only apply to work that would not normally have been done by the utility. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.050 Specifications.
All work to be performed under any permit issued under this chapter shall conform to all city codes or ordinances, the current development standards of the department, and all other standards used by the city in the administration of this chapter. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.060 Permit exceptions.
The following exceptions shall be authorized:
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 in this chapter 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 maintenance and construction work performed by city utilities and city maintenance crews, or contractors awarded contracts to perform public works projects.
C. Community, nonprofit, or other activities for which a special event permit has been issued. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.070 Revocation of permits.
A. The city engineer may revoke or suspend any permit issued under this chapter whenever:
1. 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 laws;
2. The city has been denied access to investigate and inspect how the right-of-way is being used;
3. The permittee has misrepresented a material fact in applying for a permit;
4. The progress of the approved 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 if any excavation or fill endangers, or appears reasonably likely to endanger, the public, the adjoining property or street, or utilities in the street;
5. The state of Washington or city of Shelton has revoked or suspended a contractor’s business license, or if the contractor has an ongoing enforcement investigation conducted by the Washington State Department of Labor and Industries (L&I).
B. Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized by the city engineer. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.080 Renewal of permits.
Each permit shall be of a duration as specified in Section 12.20.030. If requested by the permittee before expiration, right-of-way use permits, except those specified under Section 12.20.030(C)(3), may be renewed without additional fees for one additional term; provided, however, that the use or activity is progressing in a satisfactory manner as reasonably determined by the city engineer or designee. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.090 Permit conditions.
The city engineer shall have authority to impose such permit conditions as are necessary to protect the city’s financial interests, preserve the integrity of the right-of-way, and maintain public rights-of-way for ordinary travel. Such permit conditions may include provisions concerning:
A. Compliance with public development standards;
B. Indemnity and insurance;
C. Performance deposits, bonds, and security;
D. Maintenance guarantees;
E. Traffic control and pedestrian access;
F. Protection of street improvements such as paving and sidewalks;
G. Backfilling and compaction;
H. Storage and maintenance of excavated material;
I. Warning lights, safety devices, construction signs, and barricades;
J. Protection of adjacent property;
K. Preservation of monuments;
L. Hours of construction;
M. Management of pollution and noise; and
N. Coordination with utilities. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.100 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. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.110 Right-of-way restoration.
A. Permanent restoration of the right-of-way shall be made by the permittee in strict accordance with the standards and specifications of the city. Permanent restoration may include overlays of portions of the right-of-way which have been disrupted by excavation work.
B. The permittee shall guarantee conformance with the city’s development standards and specifications. Acceptance of any excavation work or right-of-way restoration shall not prevent the city from asserting a claim against the permittee and permittee’s surety under the security device required in accordance with the permit for incomplete or defective work, if such is discovered within the period of guarantee and maintenance. The presence of the city engineer, or designee, during the performance of any excavation work shall not relieve the permittee of any responsibility under this chapter. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.120 Repair of damage to public right-of-way.
Whenever any person or entity has damaged the public right-of-way, including but not limited to the street, sidewalk, pavement, sewers, drain inlets, curbs, gutters, drainage canals, and catch basins, the city may direct the property owner to repair this damage at the property owner’s expense. If a property owner fails or refuses to repair the damage, or fails to make a repair in the manner and quality specified by the director, or within the time period specified, the city may make the repair and charge the costs and expense, plus twelve percent, against the responsible party. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.130 Appeals.
Any applicant for a right-of-way permit, holder of a right-of-way permit, or owner of property that has been abated pursuant to this chapter, who is aggrieved by any staff decision or action rendered under this chapter, may appeal said decision to the mayor or designee by serving the city clerk with a written request for appeal within ten calendar days of the action or decision. The mayor or designee shall fix a date for a hearing to be held within sixty days of the filing of the notice of appeal, and shall issue a written decision within ten days of the hearing. The decision of the mayor or designee shall be final. (Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)
12.20.140 Violation—Penalty.
Any person or entity who causes any condition or engages in any activity requiring a permit pursuant to this chapter without having applied for and received such a permit, any person or entity who violates the terms of any permit issued pursuant to this chapter, and any person or entity who performs work after a permit has been suspended or revoked shall be subject to a stop work order demanding the immediate cessation of the activity or condition as well as the fees established and defined in the city’s current fee schedule. Removal, defacement, or violation of a stop work order shall constitute a misdemeanor, subjecting the violator to ninety days in jail and a one thousand dollar fine.
Unpermitted work, fixtures, and encroachments in the right-of-way shall be subject to abatement by the city twenty-four hours after the posting of notice on the work, fixture, or encroachment. Cost of abatement will be charged to the owner or responsible party. (Ord. 1929-1018 § 1, 2018: Ord. 1847-0314 § 1 (part), 2014: Ord. 1829-0513 § 1 (part), 2013)