Chapter 12.35
RIGHTS-OF-WAY

Sections:

12.35.010    Repealed.

12.35.015    Repealed.

12.35.020    Permit required for improvement or use – Application processing.

12.35.025    Time limitation of application.

12.35.030    Permit – Additional requirements.

12.35.035    Application – Fees.

12.35.037    Permit – Fees.

12.35.040    Permit – Limited.

12.35.050    Permit – Access.

12.35.055    Permit – Encroachment.

12.35.060    Permit – Application.

12.35.065    Obligation – Revocation.

12.35.070    Conformance.

12.35.075    Covenant.

12.35.077    Permit – Interpretation.

12.35.080    Enforcement.

12.35.090    Retroactivity.

12.35.100    Repealed.

12.35.010 Definitions.

Repealed by Ord. 11-0330. [Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.010).]

12.35.015 Fee exemptions – Beautification permit.

Repealed by Ord. 11-0330. [Ord. 04-0206 § 1.]

12.35.020 Permit required for improvement or use – Application processing.

A. Permits Required. City street right-of-way shall not be privately improved or used for access or other purposes and no development approval shall be issued which requires use of privately maintained City right-of-way unless a permit has been issued pursuant to this chapter, except for utility construction work authorized pursuant to Chapter 12.55 KMC or special event permits approved and permitted in accordance with Chapter 8.40 KMC.

B. General Procedures.

1. Upon receipt of an application for right-of-way use permit, limited, access, or encroachment, the city manager shall determine whether the proposed activity is within City-owned right-of-way.

2. The City shall be the lead agency for the compliance with the State Environmental Policy Act. In addition, the city manager shall review applications for compliance with applicable City plans, policies, regulations and standards. Prior to issuing a right-of-way use permit, the city manager may determine and secure an appropriate financial guarantee consistent with the provisions of KMC Title 21.

3. The city manager shall, when feasible, consolidate right-of-way use permits with other development approvals to prevent duplication and increase efficiency. The fee for a consolidated approval shall be reduced to the extent separate fees would be duplicative. [Ord. 12-0335 § 4; Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.020).]

12.35.025 Time limitation of application.

A. Applications for which no permit is issued within 18 months following the date of application shall expire by limitation and plans and other data submitted for review may thereafter be returned to the applicant or destroyed in accordance with State law.

B. Applications may be canceled for inactivity, if an applicant fails to respond to the department’s written request for revisions, corrections, actions or additional information within 90 days of the date of request. The city manager may extend the response period beyond 90 days if within the original 90-day time period the applicant provides and subsequently adheres to an approved schedule with specific target dates for submitting the full revisions, corrections or other information needed by the department. [Ord. 11-0330 § 1 (Exh. A).]

12.35.030 Permit – Additional requirements.

A. Plans. Detailed engineering and restoration plans and/or drainage plan may be required when considered necessary by the city manager. Costs for the development of such plan and conduct of required studies shall be borne by the applicant and, if the plan is returned, it shall be returned to the applicant.

B. Survey. When considered necessary by the city manager to adequately define the limits of right-of-way, the applicant shall cause the right-of-way to be surveyed by a licensed land surveyor. Such survey shall be recorded in accordance with the Survey Recording Act.

C. Dedication. An applicant may be required to deed additional right-of-way across property under his ownership when necessary to fulfill the minimum street right-of-way width prescribed in RCW 36.86.010.

D. Illegal Subdivision. A permit shall not be issued to provide access to a lot or parcel created in violation of State and City subdivision regulations. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.030).]

12.35.035 Application – Fees.

A. Each application requires a fee, imposed by city council by resolution, payable to the City for the administrative costs and expenses of processing the application.

B. The purpose of this subsection B is to foster the public benefit by encouraging citizens to beautify publicly owned rights-of-way, without compromising the public’s safety. For purposes of maintaining a record of all beautification projects, a beautification permit shall be required prior to commencement of a beautification activity. A beautification permit shall be issued without charge for projects that satisfy the following criteria:

1. The project involves the planting of flowers or other vegetation that does not hinder the safe use of the right-of-way by drivers or others within 10 feet of the fog line or the edge of the pavement, if there is no fog line;

2. The project involves planting adjacent to the applicant’s residence; and

3. No shrubs or trees are installed within three feet of a curb line or, where no curb exists, within 10 feet of the fog line or edge of pavement. [Ord. 11-0330 § 1 (Exh. A).]

12.35.037 Permit – Fees.

A. The permittee shall pay a fee at a rate imposed by the city council by resolution per hour for inspection.

B. The permittee shall also pay a fee for use of the right-of-way based on a policy approved by the city council by resolution.

C. The fees shall be collected in accordance with administrative procedures developed by the department. [Ord. 11-0330 § 1 (Exh. A).]

12.35.040 Permit – Limited.

A. Upon filing of a complete application, payment of the fee and posting of the financial guarantee for construction, maintenance, and restoration of the right-of-way consistent with the provisions of KMC Title 21, the city manager may issue a permit authorizing the limited use of City street right-of-way, for use by designated private parties for a specific use.

B. The permit may require construction and restoration of the right-of-way to adopted City standards based on the nature and duration of the specific use, and subject to inspection. In addition, conditions may be set to assure the compliance with City plans, policies, standards and regulations. Such conditions may require performance in excess of adopted street standards.

C. The applicant shall assume sole responsibility for the safe and adequate operation and maintenance of any improvements to the City right-of-way during the period of time the permit is in effect.

D. The applicant may apply for an extension to the permit – upon written application for an extension, payment of the fees, and being found to be in compliance with the conditions and requirements of the original permit.

E. Types of Right-of-Way Permits, Limited.

1. Type A. Activity which will alter the surface or subsurface of the right-of-way. Examples are:

a. Paving operations;

b. Driveway installations;

c. Sidewalk installations;

d. Open-cut trenching;

e. Above-ground pedestal or utility box installations;

f. Culvert installation;

g. Shoulder improvements; and

h. Beautification.

2. Type B. Temporary use of the right-of-way (24 hours or less) which does not change the right-of-way surface or subsurface. Examples are:

a. Temporary storage of a dumpster/storage container;

b. Block party; and

c. Temporary parking.

3. Type C. Temporary use of the right-of-way (more than 24 hours) which does not change the surface or subsurface. Also activities that will require traffic plan and traffic plan review. Examples are:

a. Street closures (fair or carnival);

b. Commercial activities in the right-of-way; and

c. Extended storage in right-of-way. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 00-0088 (Exh. B); Ord. 98-0024 §§ 1, 2 (KCC 14.28.050).]

12.35.050 Permit – Access.

A. Upon filing of a complete application and payment of the fee, the city manager may issue a permit authorizing the use of unopened City right-of-way for property access for a period exceeding one year in duration.

B. The applicant may be required to construct street improvements to the adopted City street standards, and may be required to post financial guarantees consistent with the provisions of KMC Title 21 for construction, restoration and maintenance. Construction work and all restoration work required by the permit shall be completed within one year of the permit’s issuance. In addition, the city manager may set conditions to assure compliance of the permit with other adopted plans, City policies, and regulations.

C. The city manager shall place and maintain permanent sign(s) denoting the end of the City-maintained street.

D. The applicant shall have sole responsibility for the safe construction, operation and maintenance of any improvements to the City right-of-way pursuant to the permit, until such time as the improvements are officially accepted for maintenance by the City.

E. Unless earlier revoked by the city manager, any permit shall be valid for a term of one year and shall be automatically renewable for successive one-year terms. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 00-0085 §§ 1, 3; Ord. 98-0024 §§ 1, 2 (KCC 14.28.060).]

12.35.055 Permit – Encroachment.

A. Upon filing of a complete application and payment of the fee, the city manager may issue a permit authorizing the use of the City right-of-way for an encroachment for a period exceeding one year in duration.

B. An encroachment permit may be issued to authorize private construction in public rights-of-way when it is unlikely in the judgment of the city manager that such public right-of-way will be substantially improved by the City or other public agency within the foreseeable future.

In exercising such judgment, the city manager may consider existing traffic data in and around the site of the permit application, the City’s adopted transportation improvement plan, and any other studies, data, or other information that he deems relevant to his determination.

C. The applicant shall have sole responsibility for the safe construction, operation and maintenance of any improvements within the City right-of-way pursuant to the permit.

D. Unless earlier revoked by the city manager, any such encroachment permit issued shall be valid for a term of one year and shall be automatically renewable for successive one-year terms. [Ord. 11-0330 § 1 (Exh. A).]

12.35.060 Permit – Application.

An applicant for a right-of-way use permit issued pursuant to this chapter shall complete an application in a form prescribed by the city manager. The city manager may reject incomplete application forms. Such application form shall require an applicant to identify the right-of-way to be used, the nature of the related development on the adjacent private property, and such other information as the city manager reasonably determines to be necessary, in relation to the specific project proposed. Such other information may include geotechnical studies, proof of liability insurance, performance bonding, and other measures designed to protect the public health, safety, and welfare. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.070).]

12.35.065 Obligation – Revocation.

This chapter authorizes the city manager to engage in discretionary acts and does not create any obligation on the part of the City to issue any such right-of-way use permit, nor does it create any right on the part of an applicant to initially obtain or subsequently retain any such right-of-way permit. Any such permit actually issued shall be revocable at any time after 90 days’ written notice from the city manager to the permit holder. The city manager’s revocation notice shall include a date by which the private use of the right-of-way must be discontinued and removed, all at the sole expense of the permit holder. Any private use of the right-of-way remaining after such date shall constitute a public nuisance and shall be abated as such. The cost of abatement, including the City’s attorney fees, shall be borne by the permit holder. There shall be no administrative appeal from any such decision by the city manager to revoke any such permit. [Ord. 11-0330 § 1 (Exh. A).]

12.35.070 Conformance.

Any requirement imposed by this chapter shall be in addition to any other requirement imposed by any other ordinance or other law regulating or controlling the use and development of private or public property. Such additional requirements include but are not limited to any necessary setback variances. A permit issued pursuant to this chapter may not authorize any use or development otherwise not allowed or permitted under any other ordinance. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.080).]

12.35.075 Covenant.

The applicant for a right-of-way use permit, limited, access or encroachment, may be required to record a covenant running with the land and for the benefit of the City, which contains:

A. A legal description of the lot or parcel benefiting from the right-of-way use permit;

B. If the permit is for access, a statement indicating the following:

1. Access to such parcel is across an unmaintained City right-of-way; the City is not responsible for maintenance of the right-of-way; and responsibility for maintenance of the street rests jointly and equitably upon all permit holders;

2. The owner(s) of the parcel will not oppose participation in a City street improvement district, if formation of such a district is deemed necessary by the City; and

3. Subdivision of such parcel is prohibited without obtaining either plat or short plat approval;

C. If the permit is for an encroachment, a statement indicating the following:

1. Maintenance of the encroachment is the responsibility of the property owner; and

2. Acknowledgement that the encroachment must be removed by the property owner within 90 days at the request of the city manager;

D. A statement that any right-of-way use permit covenant is binding on the successors and assigns of the owner(s);

E. The acknowledged signature(s) of the owner(s) of such parcel; and

F. The right-of-way use permit may be revocable with 90 days’ written notice. [Ord. 11-0330 § 1 (Exh. A).]

12.35.077 Permit – Interpretation.

Permits issued pursuant to this chapter shall not be construed to convey any vested right or ownership interest in any City right-of-way. Every right-of-way use permit shall state on its face that any City right-of-way opened pursuant to this chapter shall be open to use by the general public except in those cases where specific conditions in a right-of-way use permit restrict the use of the right-of-way for safety reasons. [Ord. 11-0330 § 1 (Exh. A).]

12.35.080 Enforcement.

The city manager is authorized to enforce the provisions of this chapter, and any rules and regulations promulgated thereunder, pursuant to Chapter 1.20 KMC. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.090).]

12.35.090 Retroactivity.

All right-of-way use permits issued by the City prior to the effective date of this chapter shall not be affected by the provisions of this chapter. [Ord. 11-0330 § 1 (Exh. A); Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.100).]

12.35.100 Effective date.

Repealed by Ord. 11-0330. [Ord. 03-0180 §§ 1, 2; Ord. 02-0141 § 1; Ord. 98-0024 §§ 1, 2 (KCC 14.28.110).]