400-10
TEMPORARY USE OF EXCESS RIGHT-OF-WAY

Department: PUBLIC WORKS

Effective Date:    4-13-87

Supersedes:    

Prepared by:    Dick Houghton

Approved by:    Barbara Shinpoch

1.0 PURPOSE:

To establish policy and procedural guidelines which will determine how, when, and at what cost the City will allow the temporary use of City right-of-way for non-municipal uses.

2.0 ORGANIZATIONS AFFECTED:

All departments/divisions.

3.0 REFERENCES:

RMC 1-401; RMC 4-3011; RMC 9-1204; Ordinance No. 1628. RMC 9-2-3; Ordinance No. 4260

4.0 POLICY:

4.1    By Council action, the Board of Public Works has been delegated the authority to receive and act upon applications for the temporary use of City right-of-way. For approval to be granted, the following conditions must apply:

4.1.1    The property requested for private use must be unneeded and unused by the City at the time of the application and in the foreseeable future.

4.1.1.1    The Board should, however, determine that the subject right-of-way may be necessary for public use at some later date. If this is not the case, the applicant should be encouraged to request that the City Council consider vacating the right-of-way permanently.

4.1.2    The right-of-way must directly abut property owned or controlled by the applicant.

4.1.3    Applications must include sufficient and specific plans describing the proposed use of the right-of-way.

4.2    The Board has the right to impose conditions or terms on the issuance of a permit in order to protect the public health, safety, welfare, general appearance, and aesthetics of the subject area.

4.2.1    All permits shall be revocable, subject to termination upon thirty days' written notice.

4.2.2    Prior to the issuance of the permit, the applicant must provide copies of insurance policies with special endorsements in favor of the City. Such policies must provide sufficient public liability and property damage insurance with limits of not less than $100,000/$300,000 on account of public liability and not less than $50,000 for property damage.

4.2.3    Applicants shall enter into a hold harmless and indemnity agreement and/or a performance or maintenance bond approved by the City Attorney.

4.3    The Board also has the right to deny the permit if it determines that it is not in the public interest and will not further the public safety, welfare, and general appearance and aesthetics of the area.

4.4    Whenever an application is made for the construction and maintenance of any bus shelter or similar improvement in the core area of the City on public right-of-way, approval shall also be required from the City Council.

4.5    When an application is approved, the Board shall determine a non-refundable fee as established by ordinance for the temporary use of the right-of-way. The fee shall be determined as follows:

4.5.1    For single family or two family residential uses, the fee shall be $10 annually.

4.5.2    For other uses where there is no public benefit, the fee shall be equivalent to one-half of one percent (0.5%) per month of the value of the land to be utilized, payable yearly in advance. Right-of-way value shall be based on the assessed value of the land adjoining the property as established by the King County Assessor.

4.5.3    For all uses where there is a public benefit, the fee shall be equivalent to one-half of one percent (0.5%) per year of the assessed value of the property, but in no case less than $10, payable yearly in advance.

4.5.4    A no fee permit may be issued only when the applicant is a public agency and when the proposed use of the right-of-way consists of the provision of a direct service to the public (e.g., METRO applications for right-of-way for bus shelters).

4.6    Any permit requiring a fee of $250 per year or more is subject to the prevailing State Leasehold Tax (currently 12.84%). The City shall act as the collection agency for this tax. The Leasehold Tax shall be paid concurrent with and in addition to the City fee.

4.7    In the case of non-payment of the established fee or failure to maintain the insurance or indemnity agreement by such user, the revocable permit shall be deemed cancelled.

5.0 DEFINITIONS:

5.1    Public Benefit: For the purpose of this policy, 'public benefit' status shall be applied when the use of public right-of-way creates and/or enhances the general public health, safety, welfare, general appearance and aesthetics of the subject area. Such benefit shall only be recognized when it is provided without remuneration and is offered in excess of the dictates of statutory or regulatory guidelines.

A permit issued for right of way to be used totally or in part for the exclusive benefit of the owners, tenants, residents, employees, or customers of the applicant shall not be deemed to be a public benefit, even if the definition would otherwise apply.

5.1.1    Examples:

a)    Public benefit would apply, for instance, when The Boeing Company constructed covers over the sidewalks at N. 8th and Park Avenue N. These facilities were not required; they were provided at private expense and are available to any transit user in the community.

b)    Public benefit would not apply in the instance when a company applies for a street use permit to construct a portion of their required parking on City right-of-way and provide landscaping on the remainder to enhance the aesthetic quality of the neighborhood. In this case, a portion of the right-of-way is being used for exclusive private benefit and, therefore, none of the right-of-way covered by the permit shall qualify for a reduced fee.

5.2    Core Area: For the purpose of this policy, the core area of the City shall be recognized as that area bounded by the center lines of Smithers Avenue S. from S. 4th Place to S. 3rd Street and Logan Avenue S. from S. 3rd Street to the Cedar River, bounded on the north by the Cedar River, east to Mill Avenue S., south to S. 4th Street, and west to Smithers Avenue S.

6.0 PROCEDURE:

6.1    An application for use of City right-of-way shall be presented on appropriate City forms to the Public Works Director's office (forms are available at this location).

6.2    Applications must be accompanied by sufficient plans describing the proposed right-of-way.

6.3    The completed application will be submitted for Board consideration at the next regularly scheduled meeting. The applicant will be invited to attend. However, a decision may be made without the presence of the applicant, at the discretion of the Board.

6.4    If the application is approved, the permit shall be issued upon receipt of the insurance, hold harmless/indemnity, and bond documents described above.

6.5    The Board shall thereafter review each permit annually, adjusting the fee as appropriate.

6.6    If the application is denied, the applicant may appeal the decision to the Hearing Examiner as an appeal of an administrative determination. Such appeal shall be filed in writing within 14 days of the date that the action was taken.