Chapter 12.08
CONSTRUCTION IN STREETS
Sections:
12.08.050 Compliance with permits.
12.08.060 Refilling upon completion.
12.08.070 Performance guarantee.
12.08.080 Performance deposit.
12.08.090 Waiver of performance deposit.
12.08.100 Refusal to refill excavation.
12.08.120 Permit nontransferable; permit expiration.
12.08.130 Emergency excavation.
12.08.150 Abatement proceedings.
12.08.160 Penalty and cost of enforcement.
12.08.005 Title.
This chapter shall be known as the construction in streets ordinance. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.010 Definitions.
For purposes of this chapter, “person” includes any individual, firm, partnership, association, corporation, public district or other political subdivision.
For purposes of this chapter, “obstruction” shall be defined as any activity or structure, temporary or permanent, encroaching into the public right-of-way excepting utility poles or pole lines that were legally placed upon the unimproved portion of the highway.
For purposes of this chapter, “Director” means the Public Works Director, or his or her designee, of the Public Works Department of the City of Elk Grove. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.020 Permit required.
It is unlawful for any person to lay, construct or maintain any pipes, drain, or conduit across, along or on any street, road, highway, or other public right-of-way in the City, or to make any excavation or cut or obstruction therein for such purposes, without first obtaining an encroachment permit from the Director to do so in the manner herein provided. Every applicant shall state in detail the following information:
A. The location, dimension, purpose, extent and nature thereof;
B. The time during which it is estimated that the excavation or obstruction will exist;
C. Such other information as may be required by the Director. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.030 Permit fees.
A minimum processing fee and/or deposit as established by resolution of the City Council shall be paid for permits prior to permit issuance, except where a continuous billing account has been established. Additional costs incurred by the City of Elk Grove Public Works Department for processing and inspection shall be billed to the permittee on a time and material basis, based upon the City’s direct billing and overhead rates in effect at the time of permit processing. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.040 Filing of plan.
Every applicant for a permit hereunder shall file with the application a plan showing the street or highway in which the proposed excavation will be made, together with the approximate locations and dimensions of the proposed excavations or obstructions. When excavations are made for service connections or for the repair of trouble in conduits or other pipes, or for culverts or drainage pipes under driveways, the Director may waive the filing of a plan. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.050 Compliance with permits.
Any act done under the authority of a written permit issued pursuant to the provisions of this chapter shall be done in accordance with the terms and conditions of such permit. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.060 Refilling upon completion.
Immediately upon completion of the work necessitating the excavation or obstruction permitted by the permit issued hereunder, the permittee shall at his or her own cost and expense promptly and in a workmanlike manner refill the excavation or remove the obstruction. All excavations shall be refilled in a manner consistent with then applicable City standard specifications and the specific terms and conditions contained in the permit. Upon completion of the refilling of the excavation the Director shall require the permittee to resurface that portion of the street or highway damaged by the permittee’s excavation or obstruction. The resurfacing shall be done in accordance with the then applicable City standards and the specific terms and conditions contained in the permit. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.070 Performance guarantee.
All work performed in the public right-of-way shall be guaranteed for a period of one (1) year after the permit is accepted and closed by the City. If the pavement or the surface of the public right-of-way over any excavation should become depressed or broken at any time within one (1) year after acceptance, the permittee shall repair and/or resurface the work to eliminate all such failures and be to the satisfaction of the Director at the permittee’s own cost and expense. [Ord. 22-2020 §3, eff. 1-8-2021]
12.08.080 Performance deposit.
Except as hereinafter provided, the Director shall require the applicant to deposit a sum of money sufficient in the opinion of the Director to cover the total cost of refilling any excavation and proper restoration of the highway as required hereunder. The deposit shall be a corporate surety bond, or other corporate bond acceptable to the Director, cash, certified check or cashier’s check payable to the City of Elk Grove. Following completion of the work by permittee and inspection and acceptance of the work by the Director, the deposit shall remain in effect to the extent of ten (10%) percent of the value of the work to guarantee and assure faithful performance of permittee’s obligations for a period of one (1) year from the Director’s acceptance of the work. If the permittee fails or refuses to make repairs in accordance with the requirements of EGMC Sections 12.08.060 and 12.08.070, the Director shall do the work required and pay the cost thereof out of the deposit. If the deposit is insufficient for this purpose, the deficiency shall be charged to the permittee. If the permittee fails or refuses to pay such a deficiency upon demand, the City may recover the same by an action in any court of competent jurisdiction. Until the deficiency is paid in full no new permits shall be issued to such permittee. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000. Formerly 12.08.070]
12.08.090 Waiver of performance deposit.
The Director may waive a performance deposit whenever in his or her opinion the proposed excavation or obstruction is of a minor nature or other suitable security is provided. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000. Formerly 12.08.080]
12.08.100 Refusal to refill excavation.
If the permittee fails or refuses to refill any excavation as required by EGMC Section 12.08.060 or remove any obstruction which he or she has placed upon the highway or fails and refuses to restore or resurface that portion of the surface of the highway damaged by him or her in accordance with the standards herein prescribed, the Director may do such refilling and resurfacing and pay the cost thereof out of the deposit made by the permittee. The deposit shall also be used to maintain the work for a period of one (1) year after completion thereof. If the amount of the deposit is not sufficient to cover the cost of the work and the maintenance thereof, the deficiency shall be charged to the permittee. If the permittee fails or refuses to pay the deficiency upon demand, the City may recover the same by an action in any court of competent jurisdiction. Until the deficiency is paid in full no new permits shall be issued to such permittee. In lieu of such deductions the Director may bill such person for the amount owed by him or her to the City. If such amount is not paid within fifteen (15) days of the rendition of the bill, the Director may deduct the amount from the general deposit as herein provided. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.110 Exemptions.
Except as otherwise provided in Section 1468 of the California Streets and Highway Code, no performance deposit shall be required of any public district, public utility, or political subdivision which is authorized by law to establish or maintain works or facilities in, under or over any public highway, nor shall the application of any such governmental unit be denied except as hereinafter provided. Every such applicant shall be entitled as a matter of right to a permit but shall otherwise be subject to the provisions of this chapter. The Director shall have the right to deny a permit to such applicant, or require such applicant to provide a bond in a sum not to exceed twenty thousand and no/100ths ($20,000.00) Dollars, where the applicant has failed to comply with the provisions of this chapter relating to the refilling of excavations, removing or relocating obstructions or the resurfacing or restoration of any highway, and the maintenance thereof, under any previous permit. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.120 Permit nontransferable; permit expiration.
All permits issued hereunder shall be nontransferable and the work authorized by the permit must commence within thirty (30) days of issuance thereof. Except as set forth herein, permits shall expire ninety (90) days from permit issuance. Failure to commence work within thirty (30) days of permit issuance shall result in an automatic expiration of the permit, for which the applicant may apply for a new permit. Except as set forth herein, any work required after ninety (90) days of permit issuance shall require application for a new permit. The Director at his or her sole discretion may grant a reasonable extension when the work has been unavoidably delayed without fault of the permittee. [Ord. 22-2020 §3, eff. 1-8-2021; Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.130 Emergency excavation.
Nothing herein contained shall prohibit any person from making such excavation as may be necessary for the preservation of life or property when such necessity arises if the person making the excavation promptly notifies the Director of any such action. Any person making such excavation shall refill the excavation in accordance with the standards prescribed by this chapter that would be applicable if a permit was received. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.140 City liability.
The issuance of a permit hereunder shall not be construed as imposing any liability upon the City or upon any of its officers or employees by reason of damage or injury to persons or property resulting from any excavation or obstruction authorized by the permit. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.150 Abatement proceedings.
Any activity contrary to the provisions of this chapter or contrary to an encroachment permit or the terms or conditions imposed therein is unlawful and a public nuisance, and the Director is authorized to commence in the name of the City actions or proceedings for the abatement and removal and enjoining thereof in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate and remove such operation and restrain and enjoin any person, firm or corporation from so operating. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]
12.08.160 Penalty and cost of enforcement.
A. Any person violating the provisions of this chapter or any encroachment permit issued pursuant to this chapter is guilty of a misdemeanor.
B. In addition to any other remedies available at law, any person violating the provisions of this chapter or any encroachment permit issued pursuant to this chapter shall be liable to the City for all expenses and damages caused by any such violation.
C.1. In addition to any other remedies provided by this chapter or State law, there are hereby imposed the following administrative civil penalties for each violation of this chapter or the terms and conditions of any encroachment permit issued pursuant to this chapter.
a. Any person initiating work within the public road right-of-way without obtaining an encroachment permit shall be subject to and responsible for a fine in the amount of Two Thousand Five Hundred and no/100ths ($2,500.00) Dollars for a first (1st) violation, Five Thousand and no/100ths ($5,000.00) Dollars for a second (2nd) violation, or Ten Thousand and no/100ths ($10,000.00) Dollars for a third (3rd) or subsequent violation.
b. Any person in possession of a valid encroachment permit that initiates work within the public road right-of-way, but fails to provide notification for inspection as required by the permit shall be subject to and responsible for a fine in the amount of One Thousand and no/100ths ($1,000.00) Dollars for a first (1st) violation, Two Thousand Five Hundred and no/100ths ($2,500.00) Dollars for a second (2nd) violation, or Five Thousand and no/100ths ($5,000.00) Dollars for a third (3rd) or subsequent violation.
2. Whenever the Director determines that an encroachment violates the provisions of this chapter, or the terms and conditions of any encroachment permit issued pursuant to this chapter, the Director shall give written notice of such violation to the alleged violator. The notice shall include the following information:
a. The street address, legal description or other description sufficient to identify the affected property.
b. The penalty imposed as a result of such violation.
c. A statement that the party affected may file a written request for hearing with the Director if it objects to imposition of the penalty.
d. A statement that the penalty imposed shall be enforced if the party fails to file a timely written request for a hearing.
3. Notice of any administrative civil penalty shall be served either personally or by mailing a copy of such notice by certified mail, postage prepaid, return receipt requested, to the alleged violator. Service shall be effective for all purposes upon receipt if personally served, or within five (5) days of mailing as herein provided. Proof of service of the notice shall be certified at the time of service by a written declaration under penalty of perjury executed by the person effecting service, declaring the time, date, and manner in which service was made. The declaration, together with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the notice retained by the Director. The failure of a party to receive such notice shall not affect in any manner the validity of any proceedings taken pursuant to this chapter.
4.a. A written request for a hearing must be received by the Director within seven (7) days of the effective date of service of the notice. The Director shall set a time and date for the hearing and notify the party requesting the hearing in writing of the time, date and place of the hearing. The hearing shall be before a Hearing Officer designated by the Director.
b. The hearing shall be held at the earliest administratively convenient date, taking into consideration the availability of counsel and witnesses. Notice of the date set for hearing shall be mailed to the parties at least ten (10) days prior to the hearing date. The alleged violator shall be entitled to appear personally, produce evidence, and be represented by counsel. At the hearing, the City shall have the burden of going forward first with evidence in support of the allegations contained in the order imposing penalties and shall have the burden of establishing the facts by a preponderance of the evidence. The Hearing Officer may administer oaths and take official notice of facts as authorized by law.
c. Oral evidence shall be taken only on oath or affirmation.
d. Each party shall have the following rights: to call and examine witnesses; to introduce exhibits; to cross examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against it.
e. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.
f. The order of the Hearing Officer shall be in writing resolving the essential issues raised and confirming, amending or rejecting the administrative civil penalty imposed by the Director. Procedures concerning notice and service thereof shall be as provided herein.
5. The manner of contesting the final order of the Hearing Officer concerning any administrative civil penalty is governed by Section 53069.4 of the Government Code, or any successor provision thereto. A copy of the notice of appeal authorized by Section 53069.4 of the Government Code shall be served upon the City Clerk.
D. Each party violating any provision of this chapter or any encroachment permit issued pursuant to this chapter shall be guilty of a separate offense for each and every day on which any such violation is committed, continued, or permitted by any such person.
E. In addition to any penalty, sanction, fine or imprisonment, any person violating the provisions of this chapter or any encroachment permit issued pursuant to this chapter shall be required to pay any and all expenses of enforcement including those costs necessary to inspect, remove and/or correct the violation. In addition to all remedies herein contained, the City may pursue all reasonable and legal means in collecting those sums authorized and due. [Ord. 7-2009 §3, eff. 5-1-2009; Ord. 2000-14A §1, eff. 10-25-2000; Ord. 2000-1 §1, eff. 7-1-2000]