Chapter 12.16
ENCROACHMENTS ON TOWN PROPERTY
Sections:
12.16.020 Encroachments prohibited.
12.16.040 Canopies and support posts.
12.16.050 Application for exceptions--Permits.
12.16.060 Prevention of encroachments.
12.16.070 Removal of existing encroachments.
12.16.090 Right-of-way encroachments.
12.16.100 Section 12-1.1 adopted--Intent of policy.
12.16.110 Section 12-1.2 adopted--Application of policy.
12.16.120 Section 12-1.3 adopted--Policy.
12.16.130 Section 12-1.4 adopted--Administration of encroachment policy.
12.16.140 Section 12-4.1 adopted--Encroachments on controlled access right-of-way.
12.16.150 Section 12-4.2 adopted--Encroachments on noncontrolled access highway right-of-way.
12.16.160 Section 12-4.3 adopted--Hardship cases.
12.16.170 Violation--Penalties.
12.16.010 Definitions.
A. An "encroachment" is defined as any physical device of any nature whatsoever which is placed in or is allowed to occupy space in any public right-of-way in the town as such rights-of-way are defined by the plat or plats of the town on file and of record in the office of the clerk and recorder of the county. Encroachments include, but are not limited to, fences, buildings, structures, signs, markers, pipes, conduits, transmission lines, poles, wires, and any other device whatsoever which obstructs the right-of-way as defined in this chapter.
B. "Right-of-way" is defined as those portions of land lying within the town which are marked and platted as open to the public, and owned by the town or any other govern mental entity, and which are intended, by such platting, for the open use of the public; and shall include the surface of the land, the ground below the surface and the air space above the surface. (Ord. 127 §§1, 2, 1987)
12.16.020 Encroachments prohibited.
It is unlawful for any person, firm, corporation or association to place or allow to be placed, by foreseeable acts of nature or other wise, any encroachment within the rights-of-way within the town. Violation of this section shall be punishable as set forth in Section 12.16.170. (Ord. 127 §3, 1987)
12.16.030 Signs.
A. All signs for the display of advertising, the names of businesses, and other commercial or other purposes shall conform to the standards set forth in the Uniform Building Code, as adopted by the town, current edition, in Chapter 45, Section 4501 and following, as the chapter relates to awnings identified therein.
B. The spacing requirements of Section 4506(c) and (d) regarding awnings shall specifically apply to the spacing of all such signs in the town.
C. This section shall apply to all signs placed or erected after the effective date of the ordinance codified in this section. Existing signs are not effected, unless they are removed for more than a period of thirty days and then replaced. All new signs or signs placed and erected because of change in building design or otherwise shall comply with the terms of this section.
D. Violation of this section shall be punishable as set forth in Section 12.16.170. (Ord. 207 §28, 2000; Ord. 121 §§1--4, 1986)
12.16.040 Canopies and support posts.
Businesses and establishments with canopies extending from the building over the public right-of-way sidewalks shall be permitted as follows:
A. Canopies with support posts shall be permitted in the right-of-way so long as there is provided at least a six-foot wide pedestrian space between the building front and the posts; provided, that this shall not apply to rights-of-way along state highways.
B. With respect to streets with sidewalks narrower than ten feet, no new canopy posts shall be allowed except that the following rules shall apply to existing, nonconforming canopies:
1. The property owner maintaining the encroachment shall admit in writing as to the existence and extent of the encroachment;
2. The canopy shall not extend past the curb line;
3. The property owner maintaining the encroachment shall pay the difference between the cost of construction of an unobstructed sidewalk and a sidewalk obstructed by canopy posts;
4. At such times as the encroaching canopy or supporting structure, or any party thereof, is destroyed, altered, or removed for any reason, the encroachment shall cease to exist and shall thereafter conform to applicable town ordinances;
5. The property owners shall sign an agreement with the town agreeing to the conditions contained in this subsection.
C. With respect to the agreement mentioned in subsection B of this section, all agreements shall state that they shall be revocable at the pleasure of the town council and, if revoked, the structure concerned shall be removed by the owner thereof within fifteen days after a written notice is received, or the town shall cause to have the encroachment removed at the owner’s expense. As a provision for removal, the owner may (1) request the mayor to enter into a signed, written agreement within the said fifteen days to remove the encroachment by a specified date or (2) the owner may, within ten days of the receipt of the notice request a hearing before the town council. (Ord. 131 §1, 1988)
12.16.050 Application for exceptions--Permits.
A. Encroachments may be permitted only upon application to the town council prior to the placement of such encroachments, under the condition that such encroachments shall not be allowed unless in compliance with the standards set forth for the Montana Department of Highways as set forth in the department’s Design Policy Manual, Chapter 12, Subchapter 1 and Subchapter 4, which are incorporated into this chapter in Sections 12.16.100 through 12.16.160. In addition to the foregoing:
1. With respect to encroachments in the Madison Addition of the town, certain encroachments shall be permitted in accordance with Section 12.16.050(A)(2) in an area beginning at the private property line and extending into the street right-of-way a maximum distance of four feet. In the area between the point extending four feet into the right-of-way and the edge of the existing street pavement, allowable surfacing materials include concrete, crushed gravel (one and one-half inches or smaller) and lawn grass or grass sod. Surfacing materials must conform to the contours of the adjacent street shoulder and borrow ditch, may not restrict water drainage, and may not protrude above the elevation of the edge of the asphalt (street pavement) adjacent to the area of the proposed encroachment.
2. Throughout the town, nonpermanent or alterable structures will be permitted under certain conditions. Such types of structures consist of fences and timbers.
All such encroachments must be made of natural materials and must be no greater than three feet in height. No signs are permitted under this provision.
Such decorative landscaping, including grass, gravel and sod, shall be permitted between the private property line and the edge of the outside of the sidewalk or curb. In the event the property owner wishes to overlay concrete or asphalt between the property line and such developed portion of the right-of-way, application therefor must be made and permission granted prior to the commencement of construction. All materials must meet the same specifications as those stipulated by the project engineer for the 1988 West Yellowstone street project. If such asphalt or concrete improvements are made, future street lighting must be provided for with conduits and an as-built drawing showing the location of such conduits must be provided to the town upon the completion of construction.
3. All encroachments allowed pursuant to these permits shall be issued with the express understanding that the town is not responsible for damage to the encroachments which may be occasioned by ordinary use, including snow plowing and street maintenance by town employees. Unless an encroachment permit states otherwise, the permit is revocable at will at any time and for any reason by the town council.
B. Any person wishing to maintain an encroachment shall make application to the town clerk who shall, at the next regular meeting of the town council, present the same and if the same be approved by the council under the criteria set forth in the department’s policy manual, the permit may be granted.
C. Any application for a permit shall be in writing and shall describe the encroachments sought to be approved, its construction and size together with a sketch thereof, and will be accompanied by a fee as provided in the then current Uniform Building Code or other code adopted by ordinance, which fee shall be refundable only if the encroachment be disapproved.
D. The town council may adopt rules or policies that implement the purpose and intent of this section. The town council may also adopt rules or policies that allow certain types or classes of encroachments to be placed on the town right-of-way, town parks or other town property without the need for a written application and permit as required by this section. (Ord. 192 §1, 1997: Ord. 154 (part), 1993; Ord. 146, 1992; Ord. 137 §10, 1989; Ord. 127 §4(part), 1987)
12.16.060 Prevention of encroachments.
No building permit for the construction, remodeling or renovation of any building in the town shall be approved by the town building official until the applicant for the building permit has provided sufficient proof, by submission to him of a survey, which must be based upon the town street monuments, that the proposed construction shall not create an encroachment. The form and content of the proof by survey shall be as specified by the building official. (Ord. 127 §5, 1987)
12.16.070 Removal of existing encroachments.
At such time as it comes to the attention of the mayor or town council that an encroachment exists, the mayor is authorized to order the removal of the encroachment by sending to the owner of the property from which the encroachment extends, by certified mail, return receipt requested, a notice in substantially the follow form:
NOTICE REGARDING ENCROACHMENT
NOTICE TO REMOVE
CERTIFIED MAIL--RETURN RECEIPT REQUESTED
TO: ____________________, _______________________,
West Yellowstone, Montana 59758
YOU ARE HEREBY NOTIFIED that an encroachment in the nature of __________________ on your premises at _______________ is obstructing the public right-of-way at ___________________________
You are hereby notified that you must remove the encroachment so that _____________________ shall be unobstructed. You must remove the encroachment with fifteen (15) days after you receive this Notice, of the Town of West Yellowstone shall cause to have the encroachment removed. PROVIDED, that (1) your may request the Mayor to enter into a signed written agreement with you, within said fifteen (15) days, to remove the encroachment by a date certain or the town will then remove the same at your expense; or (2) within ten (10) days of your receipt of this Notice, you may request a hearing before the town council if you deny said encroachment.
If the Town is required, in any event, to remove the encroachment, the expense of such removal shall be charged against you and be collected according to law.
DATED ______________________, 1987.
TOWN OF WEST YELLOWSTONE
_____________________________
Mayor
(Ord. 127 §6, 1987)
12.16.080 Public utilities.
Nothing in this chapter shall be interpreted to abrogate the right of public utilities to maintain their facilities in the public rights-of-way; provided, however, that this chapter shall apply to public utilities insofar as not inconsistent with state law regulating public utilities. (Ord. 127 §7, 1987)
12.16.090 Right-of-way encroachments.
The policy in Sections 12.16.100 through 12.16.160 governing private encroachments on the right-of-way of the state highway system of Montana was approved by the director of highways on May 29, 1959, and adopted by the Montana Highway Commission on June 23, 1969. (Ord. 127 §4(part), 1987)
12.16.100 Section 12-1.1 adopted--Intent of policy.
Section 12-1.1 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
It is the intent of this policy to help preserve the public investment in highway facilities and assure maximum safety to the traveling public by establishing standards to achieve maximum practicable control over private encroachments on the right of way of the State Highway System without causing undue hardship to owners of existing facilities encroaching on said right of way on the date this policy is adopted.
The standards set forth herein are intended to:
A. Allow continued encroachment by certain facilities, devices, or objects within areas of ci ties and towns where the State highway is located over a platted and dedicated street without additional right of way having been acquired therefor.
B. Prevent future encroachments on all right of way acquired by the Department of Highways for the State Highway System by gift, purchase, exchange, or condemnation.
C. Provide for the orderly removal of all existing private encroaching facilities, devices, or objects not allowed to remain on, over, or under said right of way under the standards of this policy.
(Ord. 127 §4 (part), 1987)
12.16.110 Section 12-1.2 adopted--Application of policy.
Section 12-1.2 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
This policy applies to all private structures, devices, and facilities placed upon, over, or under the right of way of the State Highway System, except:
A. Utility facilities occupying State Highway System right of way pursuant to regulations adopted by the Montana Highway Commission.
B. Private driveways, road approaches, mailboxes and curb cuts administered pursuant to "Approach Standards for Montana Highways."
C. Other occupancy of State Highway System right of way as presently permitted and covered by revocable encroachment permit (Form R/W 20). Examples of occupancy allowed under revocable permit include private water, sewer, electric, natural gas, and communication lines and private irrigation facilities and related installations.
D. Individual facilities (farm fences) specifically permitted to occupy State Highway System right of way under existing use permit procedures.
(Ord. 127 §4(part), 1987)
12.16.120 Section 12-1.3 adopted--Policy.
Section 12-1.3 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
A. No private use of State Highway System right of way shall be allowed within and between the access control limits of controlled access highway without the prior approval of the Director of Highway.
B. No private use of non-controlled access highway right of way shall be allowed except as specified below:
1. Private advertising signs, eaves, marquees, and similar devices may overhang the right of way, provided:
a. The overhanging device is within an incorporated town or is under the jurisdiction of another local unit of government which has ordinances or regulations allowing such overhang and the overhanging device is in compliance with such ordinances or regulations.
b. The overhanging device does not conflict with, or interfere with, traffic control signs, signals, or other devices, or with the public’s use of the right of way.
c. The location of the overhanging device with respect to the highway shall be within the limits specified by standards promulgated by the Chief Right of Way Bureau for the Department of Highways.
2. Private underground facilities such as vaults, access and transportation tunnels and sidewalk freight entrances may be allowed within the public right of way, provided:
a. The underground facility is under the jurisdiction of an incorporated town or other local unit of government which allows such use under promulgated ordinances or regulations or by agreement.
b. The underground facility is in compliance with such ordinances, regulations, or agreement. c. The facility does not incommode or interfere with the use of the right of way by the traveling public.
3. Private non-commercial use and maintenance of the area adjacent to sidewalks and curbs by abutting property owners for planting of trees, shrubs, grass, and similar uses be allowed, provided:
a. Such use is generally allowed within the town or other area under the jurisdiction of a local unit of government.
b. The use is not commercial or for profit and does not incommode or interfere with use of public right of way.
c. Such trees, shrubs, or other vegetation are of a species that will not injure the street, curbs, or sidewalks.
d. Such use complies with applicable safety policies or standards adopted and promulgated by the American Association of State Highway and Transportation Officials.
4. To prevent under hardship, facilities which are in place and encroach on State Highway System right of way on the date this policy is adopted, but which are in conflict with the criteria set forth in paragraph 12-1.3 B1, 2, 3, and 4, may be allowed to remain in place at the discretion of the Chief-Right of Way Bureau providing that the owner of the encroaching facility is willing to enter into a written agreement with the Montana Department of Highways for an extension of time to remove the encroachment.
5. "Conditional Agreement" may be issued for certain encroachments not previously described and which are required to be removed from the right of way under this policy, provided removal or agreement to remove such encroachments cannot by achieved amicably. The encroaching facility to which this provision applies and the conditions under which a conditional agreement may be issued are as follows:
a. Buildings--A conditional agreement may be granted for a building structure for an initial period not to exceed ten (10) years, provided the building does not interfere with the public use of the right of way. Extensions may be granted for additional periods not to exceed ten (10) years each, provided the building does not interfere with the public use of the right of way.
b. Fuel Pumps--A conditional agreement of time may be granted for fuel pumps (gasoline, diesel fuel, etc.) and connections including pump islands and lighting devices, for an initial period not to exceed five (5) years where such facilities do not interfere with the public use of the right of way. Extensions may be granted for additional periods not to exceed five (5) years each, provided the facilities do not interfere with the public’s use of the right of way.
c. The person or firm granted such "conditional agreement" shall sign a recordable instrument (REW 7c) agreeing to remove the device upon appropriate notice. This instrument shall require that the person or firm granted such agreement shall furnish a performance bond to assure the removal of the encroaching device from the right of way. The amount of such bond shall be $5,000 or the estimated cost or removing the encroaching device from the right of way, whichever is greater. A $3,500 cash bond may be substituted for the $5,000 surety bond where the estimated cost of removing the encroaching device does not exceed $3,500. In addition, the instrument shall provide that the person or firm shall furnish a contractual insurance policy with minimum limits of $250,000/$500,000 public liability, and $25,000 property damage. Such policy must save the traveling public, the State of Montana--Department of Highways, its employees and agent, harmless from any loss or damage.
(Ord. 127 §4(part), 1987)
12.16.130 Section 12-1.4 adopted--Administration of encroachment policy.
Section 12-1.4 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
A. The Chief - Right of Way Bureau for the Department of Highways is authorized and directed to develop, implement, and administer a program which will accomplish the orderly removal or control of encroaching facilities in accordance with this policy. This includes authority to:
1. Make and promulgate additional regulations and standards as required to implement the encroachment policy as stated herein. Such regulations and standards should conform to applicable policies on the right of way encroachments adopted by the American Association of State Highway and Transportation Officials.
2. Develop and administer procedures as required to implement and carry out an effective encroachment removal and control program.
3. Transfer the administration of this policy to the Maintenance Division after existing encroachments have been removed or brought under control as required.
B. The Maintenance Division of the Department of Highways is hereby authorized and directed to assume and carry out administration of this policy after existing encroachments have been removed or brought under control and has been so notified by the Engineering Division.
C. When legal assistance is required to accomplish the removal or effective control of an encroaching device or facility, the matter will be referred to the Administrator - Legal Division for handling.
(Ord. 127 §4(part), 1987)
12.16.140 Section 12-4.1 adopted--Encroachments on controlled access right-of-way.
Section 12-4.1 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
No private use of State Highway System right-of-way shall be allowed within and between the access control limits of controlled access highway except as noted below.
A. The Director of Highways or his assigns may approve individual private encroachments within the controlled access right-of-way, provided prior concurrence is obtained from the Federal Highway Administration for each such encroachment.
B. As a minimum requirement, encroachments within controlled access right-of-way must conform to the standards set forth in the regulations governing occupancy of State highway right-of-way systems by utility facilities with reference to freeways and expressways.
C. The facility must be constructed and maintained and be capable of being removed from the area outside of the access control limits.
(Ord. 127 §4(part), 1987)
12.16.150 Section 12-4.2 adopted--Encroachments on noncontrolled access highway right-of-way.
Section 12-4.2 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
No private use of non-controlled access highway right-of-way shall be allowed, except as specified below:
A. Overhanging Encroachments - Private advertising signs, eaves, marquees, and similar devices may overhang the right-of-way, provided:
1. The overhanging device is within an incorporated town, or is under the jurisdiction of another local unit of government which has ordinances or regulations allowing such overhanging, and the overhanging device is in compliance with such ordinances or regulations.
2. The overhanging device does not conflict with, or interfere with, traffic control signs, signals, or other devices, or with highway construction of maintenance operations, or with the public’s use of the right-of-way.
3. Ground-mounted structures supporting the overhanging device must be located entirely off the public right-of-way.
4. The outermost portion of the overhanging device must be at least two (2) feet behind the curb or curbline in horizontal distance, and at least seven and one-half (7 1/2) feet above the top of the curb, sidewalk, or roadway shoulder elevation in vertical distance.
B. Underground Encroachments - Private underground facilities such as vaults, access and transportation tunnels, and sidewalk freight entrances may be allowed within the public right-of-way, provided:
1. The underground facility is located within the incorporated town, or is under the jurisdiction of another local unit of government which allows such use under promulgated ordinances or regulations, or by special agreements.
2. The underground facility is in compliance with such ordinances, regulations, or special agreements.
3. The ordinance, regulation, or special agreement allowing such underground use of the public right-of-way contains a revocation clause requiring that the owner shall either remove the encroaching facility at his sole expense, or pay any difference in costs of construction upon receiving appropriate notice that removal or adjustment is deemed necessary and must be accomplished.
4. The facility does not incommode or interfere with highway construction or maintenance operations, or with the use of the right-of-way by the traveling public.
C. Above-Ground Use and Maintenance of Area Adjacent to Traveled Way - Private non-commercial use and maintenance of the area between the property line and the curb line by abutting property owners for planting of trees, shrubs, grass, and similar uses may be allowed, provided:
1. Such use is generally allowed within the town or other area under the jurisdiction of a local unit of government.
2. The use is not commercial or for profit and does not incommode or interfere with the highway construction or maintenance operations, or with the public use of the right-of-way.
3. Such use complies with applicable safety policies or standards adopted and promulgated by the American Association of State Highway and Transportation Officials.
4. Additional desired objectives are as follows:
a. Such plantings should be sufficiently deep-rooted to prevent injury to sidewalks and curbs.
b. Trees should not be allowed in areas where the posted speed limit exceeds twenty-five (25) miles per hour.
c. The diameter of tree trunks should not exceed six (6) inches when measured at a point two (2) feet above the base of the tree at ground level.
d. Trees should be pruned or trimmed away so they will not obscure traffic signs and signals and do not overhang the traveled way below an elevation of thirteen feet, eight inches (13 ft., 8 in.) above the traveled way of the highway.
e. Bushes and shrubs should not be allowed in areas where the posted speed limit exceeds thirty-five (35) miles per hour.
f. Bushes and shrubs should not exceed eighteen (18) inches in height in the vicinity of intersections, railroad grade crossings, or in other areas where unimpaired lateral sight distance is an important consideration.
g. Bushes and shrubs should be maintained so they do not overhang curbs or sidewalks.
(Ord. 127 §4(part), 1987)
12.16.160 Section 12-4.3 adopted--Hardship cases.
Section 12-4.3 of the Montana Department of Highways’ Design Policy Manual is adopted as follows:
To prevent undue hardship, overhanging and underground encroachments which do not conform to the standards set forth in Paragraph 12-4.2 may be allowed to remain in place at the discretion of the Chief--Right-of-Way Bureau under the conditions set forth below:
A. The facility must have been in place and must have encroached on public right of way as of June 23, 1969.
B. It is determined that the encroaching facility and normal use thereof does not constitute a traffic hazard and does not conflict or interfere with highway construction or maintenance operations, or with the public’s use of the right-of-way.
C. The owner of the encroaching facility must sign an application for extension of time and agreement to remove the encroachment in favor of the Department of Highways. This application must contain the following minimum provisions:
1. The present encroaching device may remain as it is for a specified period of time not to exceed ten (10) years from the date of issuance of the agreement.
2. If the encroaching facility is subsequently determined to be a hazardous installation, or becomes conflicting or interfering with the operation and public use of the highway, it shall be removed on thirty (30) days written notice.
3. If the encroaching facility is replaced, renewed, or removed for any reason, the agreement is automatically revoked and the facility must thereafter be in conformance with the standards set forth in Paragraph 12-4.2. Normal painting and servicing of the facility shall be allowed, however.
4. The encroaching facility shall be removed from the right-of-way on or before the expiration date of the agreement, or upon written notice as provided above.
5. The encroachment owner shall pay court costs and reasonable attorney’s fees in the event the State is required to take legal action to enforce the terms of the agreement.
D. Agreements shall not be issued for the following facilities:
1. Off-premise advertising signs.
2. Revolving, moving, animated, or flashing illuminated signs, or other signs which tend to unduly distract or annoy.
3. Free-standing or portable signs or devices. 4. Facilities which are not permitted, or are specifically prohibited under applicable ordinances or regulations of the town or other appropriate local unit of government.
(Ord. 127 §4(part), 1987)
12.16.170 Violation--Penalties.
Violation of this chapter is a municipal infraction subject to the provisions of Sections 7-1-4150 through 7-1-4152, MCA. (Ord. 207 §29, 2000; Ord. 127 §8, 1987)