Chapter 12.27
RIGHT-OF-WAY USE
Sections:
12.27.020 Obstruction of streets – Prohibited.
12.27.030 Obstruction of streets – Permitted exemptions.
12.27.040 Obstruction of unopened streets – Permit required.
12.27.050 Obstruction of right-of-way – Permit required.
12.27.060 Obstruction of sidewalks and planting strips – Prohibited.
12.27.080 Obstruction of sidewalks and planting strips – Exceptions without permit.
12.27.090 Obstruction of sidewalks or planting strips – Permit required.
12.27.100 Permit – Processing.
12.27.110 Permit – Issuance by City engineer.
12.27.130 Obstructions – Standards.
12.27.140 Permit – Conditions.
12.27.150 Permit – Terminable at will – Appeals.
12.27.160 Prohibited obstructions – Declared nuisance.
12.27.170 Liability for costs.
12.27.010 Definitions.
For the purpose of this chapter, the following words have the meaning designated herein unless the context indicates otherwise:
A. “City” means the city of Blaine.
B. “City council” means the city council of the city of Blaine.
C. “City engineer” means the city engineer for the city of Blaine or his authorized designee.
D. “Exhibition” means a public display of goods or articles under the sponsorship of the applicant where any such 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. Examples of exhibitions are: agricultural show; industrial show; sports show; trade show; sidewalk sales; street fairs; public markets; carnivals; parades; demonstrations; walking/running/bicycling/wheelchair events; and civic sponsored events.
E. “Mobile sales cart” means a moveable wheeled cart no larger than 10 square feet in size, as viewed from above.
F. “Parade” means an organized assembly of vehicles, floats, and/or animals traveling on a public right-of-way with the intent to entertain an audience assembled along the right-of-way.
G. “Permit” means a “right-of-way use permit” issued by the city engineer.
H. “Planting strip” means that portion of the right-of-way, if any, between a street and the adjacent sidewalk.
I. “Public Plaza” means the G Street, H Street and Martin Street street ends lying west of Peace Portal Drive.
J. “Right-of-way” means the entire width between the boundary lines of every piece of property designated as a public right-of-way, whether any portion of the right-of-way is used by the public for either pedestrian or vehicular travel.
K. “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 another durable surface, or is otherwise used for pedestrian travel.
L. “Street” means that portion of the right-of-way, if any, which is used for vehicular travel, including alleys.
M. “Unopened right-of-way” means a right-of-way which is not used for either pedestrian or vehicular travel. (Ord. 2961 § 1 (Exh. A), 2021; Ord. 2235 § 1, 1996)
12.27.020 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 by pedestrians, vehicles or bicycles; provided, that the city may close any street at any time when the city engineer or the director of public safety determines such closure to be necessary to protect the public health, safety or welfare. (Ord. 2235 § 1, 1996)
12.27.030 Obstruction of streets – Permitted exemptions.
Notwithstanding the provisions of BMC 12.27.020, construction or excavation work shall be exempt from the terms of this chapter; provided, that a permit for such work issued under Chapter 12.04 BMC shall constitute the permit necessary for such work. (Ord. 2235 § 1, 1996)
12.27.040 Obstruction of unopened streets – Permit required.
Notwithstanding the provisions of BMC 12.27.020, a permit for an obstruction of an unopened or unoccupied street of the city for a period not to exceed one year may be issued by the city engineer; provided, however, that no such permits shall be issued to any person, firm or corporation which does not own the underlying fee title to the portion of the street sought to be obstructed, and no such permit shall be transferable. (Ord. 2235 § 1, 1996)
12.27.045 Downtown plaza use.
In the central business district, the city may authorize the use of a public plaza by a business for outdoor business operations by issuing a plaza use agreement. An application may be made to secure use of a portion of a public plaza by submitting an application and a plan as provided in BMC 12.27.100. The application shall be reviewed by the public works director or their designee pursuant to BMC 12.27.110. Issuance of a plaza use agreement shall require payment of the applicable fee as provided in the unified fee schedule.
A. The public works director or their designee may decide to approve, approve with conditions, or deny an application. The decision shall consider whether the proposed use will:
1. Unreasonably interfere with previously approved businesses or other typical uses or activities on adjoining properties. For adjoining properties, the adjacent 12 feet of the plaza shall be reserved for business access and activities on the adjoining property.
2. Unreasonably disrupt the orderly or safe circulation of plaza users as would present an unreasonable risk of injury or damage to the public.
3. Unreasonably interfere with the city’s operation and maintenance of public infrastructure within the plaza.
4. Result in the obstruction of more than 35 percent of any one plaza. Each plaza use application shall be considered collectively with other city-approved plaza use agreements. All remaining plaza areas shall be open and accessible to the public.
B. The city may condition the issuance of a plaza use agreement by imposing requirements concerning the time, place and manner of the activity as necessary to protect the safety and/or convenience of persons and property and the control of pedestrians and traffic. Weather canopies and dining enclosures are typically allowed unless they are found to be inconsistent with subsection (A) of this section. The city shall issue the decision and required conditions in writing to the applicant. Conditions may include, but are not limited to, requirements for:
1. The provision of insurance;
2. Review and approval by the fire district;
3. Proper disposal of refuse or debris and/or clean-up of spills;
4. Adjusted operating hours;
5. Elimination of an activity which cannot be mitigated to a point as to ensure public safety and welfare, or which possesses an unacceptable level of risk to the city;
6. Accommodation of pedestrian traffic, including restricting the activity to only a portion of a public place;
7. Reduction of noise and odors, including but not limited to those resulting from amplified music, generators, or cooking of food;
8. Storage of materials within the public right-of-way;
9. Securing objects within the right-of-way;
10. Compliance with any relevant ordinance or law and obtaining any legally required permit(s) or license(s);
11. Any other restriction or requirement deemed necessary to ensure public convenience, health, safety and welfare.
C. The plaza use agreement shall include the initial term of use and how to apply for renewal.
1. The initial agreement term shall be either of the following annual options, subject to renewal:
a. May 1st to October 31st; or
b. January 1st to December 31st.
2. Agreements may be initiated for a start date after January 1st or May 1st, but end dates shall remain fixed as December 31st and October 31st, respectively, and fees are not prorated.
3. Renewal Term(s). Permits issued under this chapter may be renewed for successive terms upon application by the permit holder and payment of the fee; provided, that all conditions of the original permit are currently being met, including but not limited to insurance, where required.
4. The public works director or their designee may apply revised conditions upon permit issuance. (Ord. 2961 § 1 (Exh. A), 2021)
12.27.050 Obstruction of right-of-way – Permit required.
Notwithstanding the provisions of BMC 12.27.020, the following obstructions of right-of-way may be permitted if a permit therefor is obtained from the city under this chapter; provided, that the city engineer and the director of public safety shall determine what traffic barricades and where they are to be located, if any are necessary. The applicant may be required to provide such barricades, place them according to specifications provided by the city and shall be responsible for maintaining them during the permit period and removing them at the completion of the function for which they were necessary:
A. Exhibitions;
B. Parades;
C. 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 construction work on private property and where an excavation permit is not required. (Ord. 2961 § 1 (Exh. A), 2021; Ord. 2235 § 1, 1996)
12.27.060 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, the use of the sidewalk for sale or display of merchandise, except as otherwise provided by this chapter. (Ord. 2235 § 1, 1996)
12.27.070 Obstruction of sidewalks – Removal of ice, snow, dirt and other accumulations and maintenance of planting strips abutting private property.
A. When the obstruction of a sidewalk consists of either ice, snow, mud, dirt, earth, plant refuse, paper, debris or other accumulated material, the abutting property owner shall, within 24 hours after the deposit of such material upon such sidewalk, remove such material from that portion of the sidewalk upon which such owner’s property abuts. To prevent obstruction of sidewalks by vegetation in planting strips, abutting property owners shall maintain such strips by trimming grass or weeds therein to a maximum height of 18 inches.
B. Any accumulation of ice, snow, mud, dirt, earth, plant refuse, paper, debris, tall grass or weeds, or other material that shall remain more than 48 hours upon a sidewalk is hereby declared a public nuisance. If the owner of the abutting property refuses to comply with the requirements of subsection A of this section after demand therefor by either the city engineer or the director of public safety, the city engineer, under the direction of the public safety director, shall cause such accumulation constituting a nuisance to be removed. All expenses of such removal, including the costs of litigation, if necessary, shall be chargeable to the owner of the abutting property. (Ord. 2235 § 1, 1996)
12.27.080 Obstruction of sidewalks and planting strips – Exceptions without permit.
Notwithstanding the provisions of BMC 12.27.060, the following obstruction shall be permitted on sidewalks or planting strips without a permit:
A. Merchandise being moved into or out of an adjacent business; provided, that such merchandise does not remain on the sidewalk or planting strip for more than 30 minutes;
B. Fire hydrants;
C. Planters and other landscaping placed by the city;
D. Benches and bicycle racks placed by the city;
E. Communication and light poles, placed either by the city or pursuant to franchise granted by the city;
F. Flagpoles or standards therefor placed by the city;
G. Traffic-control devices placed by the city;
H. Refuse containers, 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;
I. Newspaper dispensers or newsracks;
J. Postal boxes, either individual or group, erected according to city specifications;
K. Solicitation by civic or nonprofit organizations;
L. Landscaping that is semi-permanent in nature that can be removed from the sidewalk area or planting strip at the expense of the owner upon notice by the city. Such landscaping shall be less than 30 inches above the established grade at the curb line or roadway shoulder area. Such landscaping may include fences that are less than 30 inches in height;
M. Street musicians, which are hereby permitted outright without any other permit required to be obtained from the city; provided, that normal public use of the right-of-way is not interfered with and that the public safety is not impaired, as determined by the city engineer, the director of public safety, or their respective designees. (Ord. 2235 § 1, 1996)
12.27.090 Obstruction of sidewalks or planting strips – Permit required.
Notwithstanding the provisions of BMC 12.27.060, the following obstructions of sidewalks or planting strips may be placed by private parties, if a permit therefor is obtained from the city under this chapter:
A. Benches;
B. Litter receptacles;
C. Clocks;
D. Bicycle racks;
E. Merchandise displays, limited to special sales events of no more than seven days continuously, with a maximum of 14 days in any 30-day period, and no more than 60 days in any calendar year, and displayed abutting the business offering such merchandise in such a way that an unobstructed pedestrian corridor is maintained at a minimum width of five feet;
F. Telephone booths;
G. Private planters and other landscaping higher than 30 inches above the established grade at the curb line or roadway shoulder;
H. Hanging planters attached to city poles or otherwise overhanging city right-of-way, with a minimum clearance of seven feet above sidewalks, eight feet above bicycle lanes, 15 feet above arterials, and 14 feet above all other roadways;
I. Any other obstruction sought to be placed upon a sidewalk by the city for a public purpose;
J. 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 six inches in depth as measured perpendicular to the existing facade;
K. Sidewalk cafes; provided, that an unobstructed pedestrian corridor is maintained at a minimum width of five feet; and that such permit shall last for one calendar year and must be renewed each year;
L. Any other sidewalk or planting strip obstruction which is determined to provide a public benefit, although the obstruction constitutes a private use of the public street;
M. Fences, retaining walls, terracing and other similar structures;
N. Mobile sales carts; provided, that:
1. Such permit shall last for only one calendar year and must be renewed each year;
2. The cart may only vend from a stationary position which shall be established and specified in the permit and shall be removed at night;
3. The applicant shall maintain the area in the vicinity of his cart free of litter and/or debris and provide one litter receptacle;
4. The applicant shall adhere to such other conditions that may be placed upon the permit. (Ord. 2235 § 1, 1996)
12.27.100 Permit – Processing.
A. Application for a permit for a street, sidewalk or planting strip obstruction under sections of this chapter shall be made to the city engineer on a form supplied by the engineering department.
B. The application for a permit shall contain such information as is required by the engineering department, including, but not limited to:
1. A description of the obstruction;
2. Drawings and specifications for the obstruction, sufficient so that its compliance with this chapter may be reviewed by the department;
3. A description of the method of compliance with the standards for installations for sidewalk obstructions established by provisions of this chapter.
C. Upon receipt of an application, the city engineer shall forward the application to such departments as he/she shall deem appropriate for comment. Such comments shall be provided to the city engineer within 14 days of forwarding the application for comment. (Ord. 2235 § 1, 1996)
12.27.110 Permit – Issuance by City engineer.
A. For a permit sought under this chapter, the city engineer 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 city engineer may issue a permit for the placement of an obstruction.
B. If the city engineer denies the permit, he/she shall so indicate to the applicant in writing, stating the reasons for the denial.
C. The applicant for the permit may appeal such denial to the city council for review. A written notice of appeal shall be made to the city clerk within 10 working days by certified mail, or by personal delivery, of the denial by the city engineer.
D. At its next meeting after receipt of the appeal, the city council shall determine, based upon the report of the city engineer, whether the application complies with the terms and standards of this chapter. The city council may affirm or reverse, or affirm with alterations, the action of the city engineer. In such a review by the city council, the applicant for the permit shall be afforded the opportunity to be heard by the council.
E. The council shall make written findings of fact supporting its determination, which shall be entered into the minutes of the council. (Ord. 2235 § 1, 1996)
12.27.120 Application – Fee.
The application, including applications for renewals, shall be accompanied by the necessary application fee, which fee shall be established by the city council by resolution from time to time. (Ord. 2235 § 1, 1996)
12.27.130 Obstructions – Standards.
Each obstruction proposed to be placed upon a sidewalk, street or planting strip of the city shall comply, at a minimum, with the following standards:
A. The location of the obstruction shall be consistent with the paramount right of the public to use the street, sidewalk or planting strip for transportation purposes.
B. The location of the obstruction, and/or the obstruction itself, shall be adequately lighted for night visibility, if the obstruction area is not lighted and pedestrians are present at night.
C. The location of the obstruction shall not constitute a traffic hazard either by itself, or by its effect upon the visibility of persons using the street or sidewalk.
D. If locations for the particular type of obstruction are required by the existence of other structures, obstructions, ordinances or other regulations, the obstruction shall be located where so required.
E. The obstruction shall not be permitted for longer than the period necessary for accomplishing the proposed purpose for such obstruction.
F. All other state and local ordinances will be applicable and shall be complied with.
G. 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.
H. No one shall plant in any public right-of-way any cottonwood, London plane, weeping willow, gum or any other tree the roots of which cause injury to the sewers, water mains, sidewalks, or pavements, 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 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.
I. 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 trees may extend over the sidewalk when kept trimmed to a height of seven feet above the same, eight feet above any bicycle lane, 15 feet above arterials, and 14 feet above all other roadways. Trees so placed shall also be trimmed so as to remain at least 10 feet below power lines and three feet below communication lines if present. (Ord. 2235 § 1, 1996)
12.27.140 Permit – Conditions.
The following shall constitute minimum conditions to be applied to the permit:
A. 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.
B. 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 of not less than $300,000 per incident, $300,000 per person personal injury, and $100,000 property damage, except for benches, litter receptacles, bicycle racks, and private planters, other landscaping, fences, walls and others so exempted by the city engineer. On recommendation of the city engineer and city attorney, this amount can be increased if warranted by the proposed use of the right-of-way.
C. 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.
D. 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 city engineer 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 city engineer and at the cost of the property owner. If the obstruction is not removed, the obstruction shall be declared a nuisance to be abated pursuant to provisions of this chapter. (Ord. 2235 § 1, 1996)
12.27.150 Permit – Terminable at will – Appeals.
A. Any permit issued pursuant to this chapter is subject to termination upon written notification by the city engineer at any time, without cause, and the permit shall so state on its face.
B. Any person who has a permit terminated by the city engineer may appeal such termination to the city council, by giving written notice of such appeal, within 10 working days of mailing by certified mail, or 10 working days by personal delivery, of the termination by the city engineer. The city council shall consider the appeal at its next possible public meeting after the filing of the notice of appeal, and may uphold or reverse the termination. (Ord. 2235 § 1, 1996)
12.27.160 Prohibited obstructions – Declared nuisance.
All obstructions not in conformance with the terms of this chapter of the Blaine Municipal Code are hereby declared to be nuisances. When judgment shall be rendered against any person, firm or corporation finding them guilty of creating, keeping or maintaining a nuisance as provided in this chapter, it shall be the duty of the court before whom the conviction is had, in addition to imposing the penalty or penalties provided for in this chapter, to order the defendant or defendants in such action to forthwith abate and remove such nuisance. If the same is not done by such offender within the time specified by order of the city engineer, the same shall be abated and removed under the direction of the city engineer or any other officer authorized by the court. The order of abatement shall be entered upon the docket of the court and made a part of the judgment in the action. (Ord. 2235 § 1, 1996)
12.27.170 Liability for costs.
Any person, firm or corporation found guilty of keeping or maintaining a nuisance as provided in this chapter shall be liable for all costs and expenses of abating the same when the nuisance has been abated by any officer of the city, which costs and expenses shall be assessed as part of the costs of the prosecution against the party liable, to be recovered as other costs are recovered; provided, that in such cases the city shall be liable in the first instance to pay the same. In all cases where the city engineer or other officer shall abate any such nuisance, he/she shall keep an account of all expenses attending such abatement. In addition to other powers given in this chapter to collect such costs and expenses, the city may bring suit for the same in any court of competent jurisdiction against the person, firm or corporation creating, keeping or maintaining the nuisance so abated. (Ord. 2235 § 1, 1996)
12.27.180 Violation – Penalty.
Repealed by Ord. 2719. (Ord. 2235 § 1, 1996)