Chapter 6.4 Roadway Encroachment
6.4.10 Purpose of This Chapter
The purpose of this Chapter is to establish regulations for encroachments into public places by establishing requirements for encroachment permits ("permit"). For purposes of this Chapter, an encroachment is defined as any activity conducted or any obstruction located within a public right-of-way or within six (6) feet from the edge of any public pavement. (Ord. 2017-06 § 2)
6.4.20 Encroachment Permit Required
No person shall excavate, construct, reconstruct, or undertake repair of any kind in any road or other public right-of-way or within six (6) feet of any public roadway pavement, without first obtaining an encroachment permit. Those activities requiring an encroachment permit may include, but are not limited to, grading, modification or construction of walls and fences, curbs, walks, gutters, driveways, pavement, sanitary sewers, storm drains, culverts, pipelines, utility improvements, vegetation, gates, lights or bollards, landscape improvements, landscape maintenance, and installing traffic control devices. (Ord. 2017-06 § 2)
6.4.30 Encroachment Permit Requirements
The following provisions govern encroachment permits:
A. No permit shall be issued unless a written application (on a form provided by the Community Development Director) for the issuance of a permit, accompanied by any required fee, and plans signed by a licensed engineer if required by the Community Development Director, is submitted to the Community Development Department ("Department") not less than forty-eight (48) hours before the work is proposed to commence. Any person who begins any work that requires an encroachment permit without first obtaining the permit shall immediately stop all work and apply for such permit.
B. The Community Development Director is authorized to issue permits to encroach; provided, that the permit is terminable on not more than ninety (90) days’ notice. The decision of the Community Development Director may be appealed to the City Manager not later than fifteen (15) days following the date of the Community Development Director’s decision.
C. The Community Development Director for good and sufficient reasons may grant an extension of time for the permit.
D. The Community Development Director may impose such conditions, including reasonable bonds or insurance, and require such changes in the application as deemed necessary for the protection of the roadway, the prevention of undue interference with traffic, the safety of persons using the public place or the reasonable and customary use and enjoyment of neighboring properties.
E. The Community Development Director shall establish such standards and specifications as may be deemed necessary for the proper construction, use, and maintenance of encroachments. Any work or use done under such permit shall conform to such standards and specifications. In the absence of specific standards and specifications, recognized standards of construction or approved practices shall govern the work or use.
F. The permittee shall be responsible for all liability imposed by law for personal injury or property damage proximately caused by work done by the permittee under permit or proximately caused by failure of the permittee to perform all obligations of such permit. If any claim of such liability is made against the City, its officers, or employees, the permittee shall defend, indemnify, and hold them, and each of them, harmless from such claim insofar as permitted by law.
G. Permits shall be issued only to the person, firm, or corporation making the application ("permittee") and may not be assigned to another person by the permittee. If any permittee assigns his permit to another, the permit shall be void.
H. The permittee, in the conduct of the work, use, or maintenance of an encroachment authorized by a permit, shall provide, erect, and maintain traffic control devices such lights, barriers, warning signs, patrols, and other safeguards as are necessary to protect the public. Any omission on the part of the Community Development Director to specify in the permit what lights, barriers, or other protective measures or devices are required shall not excuse the permittee from complying with all requirements of law and otherwise adequately protecting the safety of those using the roads or otherwise affected by the work. If, at any time, the Community Development Director finds that suitable safeguards are not being provided, the City may provide, erect, maintain, relocate, or remove such safeguards as are deemed necessary or may cancel the permit and restore the right-of-way to its former condition, all at the expense of the permittee.
I. In accordance with State law, any person excavating in the public right-of-way shall comply with the requirements of the underground service alert ("USA") regarding notification of excavation and marking of subsurface facilities. Such person shall provide USA with the assigned number for the permit to excavate or other information as may be necessary to properly identify the proposed excavation.
J. A copy of the permit shall be available for review at the site of the excavation/encroachment for the duration of the excavation and shall be shown, upon request, to any police officer or any employee of the City.
K. Opening, Backfilling and Paving Trenches.
1. No trench shall be opened in any street for the purpose of laying pipes, conduits or ducts that is more than four hundred (400) feet in advance of the pipe, conduit or ducts being placed in the trench, except when the prior written consent of the Community Development Director has been obtained.
2. Open excavation shall be covered with nonskid surface steel plates ramped to the elevation of the contiguous street, pavement, or otherwise protected in accordance with guidelines prescribed by the Department.
3. All excavations shall comply with the standards and requirements established by the Community Development Director for compaction, backfill and pavement restoration. The standards and requirements may impose different requirements for different excavations, taking into consideration relevant factors, such as:
a. The location, type and extent of excavation performed;
b. The condition of the surface being excavated;
c. The period of time elapsed since the construction or most recent resurfacing of the surface being excavated;
d. The average daily traffic volume and truck volume. Permanent pavement restoration shall be completed no later than two (2) weeks after the trench is backfilled; provided however, that the Community Development Director may grant an extension depending on the complexity of the work and testing which is demonstrated to be necessary to get the utility in service.
4. Construction debris and surplus excavated material shall be removed within one (1) working day from the time such material is placed upon the street; provided, that exceptions to this requirement may be approved by the Community Development Director. After backfilling is completed, and prior to repaving the cut, the permittee shall remove all loose paving material and trim the edges of the excavation at the street surface to the satisfaction of the Community Development Director.
5. Whenever any caving in the sidewalls of any excavation occur, the pavements above such caving shall be cut away. In no case shall any void under a pavement be filled by any side or lateral tamping.
L. Whenever any facility is abandoned in the public right-of-way, the person owning, using, controlling or having an interest therein shall file in the office of the Community Development Director within thirty (30) calendar days after such abandonment documents (plan or map) prepared and signed by a licensed engineer showing in detail the location of the facilities so abandoned. Each map, set of maps, or plans filed shall show in detail the location of each such facility or facilities abandoned subsequent to the filing of the last preceding map, set of maps, or plans. The maps or plans shall be a scaled drawing submitted in digital format, or on Mylar.
M. Each visible facility installed in the public right-of-way shall be clearly identified with the owner of the facility.
N. Whenever an encroachment agreement is required or permitted for any excavations, encroachments, and/or obstructions, the City Manager is authorized to execute such encroachment agreement on behalf of the City and in a form approved by the City Attorney. Encroachment agreements shall be recorded with the County Recorder and shall run with the land. (Ord. 2017-06 § 2)
6.4.40 Improvements Not Requiring an Encroachment Permit
The following excavations, encroachments and obstructions within a public place do not require a permit from the Community Development Director prior to construction:
A. Parkway lawn, ground cover or shrubs within the parkway area to the edge of pavement in conformance with the fire code.
B. Irrigation systems that do not cause ponding or transport of significant volumes of water onto road surfaces.
C. The property owner that installed such encroachment shall be responsible for its maintenance in a manner acceptable to the Community Development Director and in conformance with all applicable requirements of the City Municipal Code. (Ord. 2017-06 § 2)
6.4.50 Revocation
The City Council of the City of La Habra Heights reserves the right and option to revoke an encroachment permit or order the removal of any permitted encroachment at its sole discretion. However, before any encroachment permit is revoked on less than the notice period specified in the encroachment permit, the permittee will be notified of such intention and provided with an opportunity for a hearing. (Ord. 2017-06 § 2)
6.4.60 Restoration
A. In every case and at all times the work of removing from the streets all obstructions, surplus materials, debris, graffiti and waste matter of every description caused by and accumulated from the excavation shall be the responsibility of the permittee and shall be performed in a manner deemed satisfactory to the Director. Excavation sites shall be cleaned at the completion of each workday. In addition, the permittee shall remove all excavated material from the site of the excavation no later than the end of each workday.
B. In the event that subsurface material or pavement over or immediately adjacent to any excavation should become depressed, broken, or fail in any way at any time after the excavation has been completed, the Community Development Director shall exercise his best judgment to determine the person(s) responsible, if any, for the failure in the subsurface or surface of the public right-of-way and shall designate such person as the responsible party. The Community Development Director shall notify said person(s) of the condition, its location, and the required remedy, and such person(s) shall repair or restore, or cause to be repaired or restored, such condition to the satisfaction of the Director within five (5) working days of the notification. The Community Development Director may extend the time for the responsible party to repair or restore the affected public right-of-way.
C. Immediately upon completion of any work that was authorized by any permit issued pursuant to this Chapter, the permittee shall promptly fill, compact, resurface, repair or remove the obstruction to the satisfaction of the Community Development Director or his designee. If the permittee fails or refuses to comply with this requirement, the City may do so or cause the same to be performed and the permittee shall be responsible for all costs incurred by the City. If at any time it becomes necessary to again repair such surface due to settlement or any other cause attributable to such excavation or obstruction, the City may do so or cause the same to be performed and the permittee shall be responsible for all costs incurred for such additional repairs. (Ord. 2017-06 § 2)
6.4.70 Emergency Excavations
A. Nothing in this Chapter shall be construed to prevent any person maintaining any pipe, conduit, or duct in or under any street, alley, sidewalk, or other public place by virtue of any law, ordinance or permit from making such excavation as may be necessary for the preservation of life or property when the necessity arises; provided, that the person making the excavation shall notify the Community Development Director within one (1) day after the offices of the City are first opened subsequent to the excavation. Except as specifically provided otherwise in this Chapter, excavations authorized by this section shall be subject to all fees and requirements of this Chapter.
B. Nothing contained in this Chapter shall be construed to prevent any person from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by a municipal or utility excavator when such necessity arises during days or times when the Department is closed. In the event that any person takes any action to excavate or cause to be excavated in the public right-of-way pursuant to this section, such person shall apply for an emergency permit within twenty-four (24) hours after notification by the City or when the Department’s offices are first opened. The applicant for an emergency permit shall submit a written statement for the basis of the emergency permit which includes a description of the excavation already performed and any work remaining to be performed. (Ord. 2017-06 § 2)
6.4.80 Moratorium Streets
The Community Development Department will not issue any permit to excavate in any street that has been reconstructed or resurfaced by the Department or any other owner or person in the preceding five (5) year period. Companies shall determine alternate methods of making necessary repairs to avoid excavating newly paved streets during the five (5) year moratorium period. Exceptions to the five (5) year moratorium are as follows:
A. Emergency which endangers life or property or public health;
B. Interruption of essential utility service;
C. Work that is mandated by City, State, or Federal legislation;
D. Service for buildings where no other reasonable means of providing service exists.
All permits which are issued under subsections A through D of this section shall be in accordance with the details and specifications used and established by the Community Development Director. (Ord. 2017-06 § 2)
6.4.90 Coordination of Excavation
A. Advance Planning.
1. On or before October 1 of each year, each utility company that requests a permit under this Chapter shall prepare and submit to the Department a plan in a format specified by the Department that shows all major work anticipated to be done in the public right-of-way in the next two (2) years ("two (2) year plan"). Any utility company that does not prepare a two (2) year plan shall submit a statement that no such major work is anticipated and shall immediately report any major work to the Department as soon as it becomes reasonably foreseeable.
2. Unless State law provides otherwise, the Department may disclose information contained in a two (2) year plan to any company only on a need-to-know basis in order to facilitate coordination among excavators and to avoid unnecessary excavation in City streets. To the maximum extent permissible under Federal, State, and local laws applicable to public records, the City shall not otherwise disclose to the public any information contained in a two (2) year plan submitted by a utility company except to the extent necessary to coordinate with other permit applicants or projects, or the extent the information is proprietary, trade secret or is otherwise protected from disclosure; provided, however, the City shall have no duty to decline to disclose any information that utility company has not identified on its face as proprietary, trade secret or otherwise protected from disclosure. The Department shall notify the utility company of any request for inspection of public records that calls for disclosure of any two (2) year plan on which any information has been identified as proprietary, trade secret or protected from disclosure. The Department shall consult with the City Attorney regarding any such request and shall inform company either that the Department will refuse to disclose the protected information or, if there is no proper basis for such refusal, that the Department intends to disclose the requested information unless ordered otherwise by a court. The City shall be under no obligation to initiate or defend any litigation relating to this provision.
B. City’s Pavement Management Plan ("PMP").
1. The Department will prepare a two (2) year PMP showing all proposed resurfacing and reconstruction in the public right-of-way. The PMP will correspond to the City’s approved fiscal year budget. The PMP may be revised from time to time after receipt of the two (2) year plans from utility companies. In order to facilitate coordination and minimize the cost of excavation, the Department will make its PMP available for public review upon request.
2. Except when waived by the Community Development Director, at least one hundred eighty (180) calendar days prior to undertaking the resurfacing and reconstruction of any street, the Department shall send a notice of the proposed repaving and reconstruction to each utility company.
C. Coordination. The Department will review the two (2) year plans and identify conflicts and opportunities for coordination of excavations. The Department will notify affected owners and utility company of such conflicts and opportunities to the extent necessary to maximize coordination of excavation. Each permit applicant shall coordinate, to the extent practicable, with each potentially affected owner and utility company to minimize disruption in the public right-of-way. (Ord. 2017-06 § 2)