Chapter 12.24
RIGHT-OF-WAY USE CODE

Sections:

12.24.010    Short title.

12.24.020    Purpose.

12.24.030    Territorial application.

12.24.040    Definitions.

12.24.050    Powers of the director.

12.24.060    Powers of the town council.

12.24.070    Permit requirements.

12.24.080    Right-of-way use permits.

12.24.090    Application and processing of permits.

12.24.100    Permit fees and charges.

12.24.110    Specifications.

12.24.120    Permit exception.

12.24.130    Revocation of permits.

12.24.140    Renewal of permits.

12.24.150    Performance deposits, security devices, and insurance.

12.24.160    Hold harmless.

12.24.170    Guarantee.

12.24.180    Inspections.

12.24.190    Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.

12.24.200    Warning and safety devices.

12.24.210    Protection of adjoining property and access.

12.24.220    Preservation of monuments.

12.24.230    Protection from pollution and noise.

12.24.240    Excavated material.

12.24.250    Backfilling.

12.24.260    Right-of-way restoration.

12.24.270    Billings and collections.

12.24.280    Appeals.

12.24.290    Civil penalties.

12.24.300    Misdemeanor.

12.24.310    Public nuisance.

12.24.320    Copy on file.

12.24.010 Short title.

This chapter is known as and may be referred to as the “town of Index right-of-way use code.” (Ord. 429 § 1, 2012).

12.24.020 Purpose.

It is the purpose of this chapter to provide for the issuance of right-of-way use permits in order to regulate activities within rights-of-way in the town of Index in the interest of public health, safety, and welfare; and to provide for the fees, charges, security devices, and procedures required to administer the permit process, to include the following specific purposes:

(A) This chapter is enacted to protect and preserve the public health, safety, and welfare. The provisions hereof shall be liberally construed for the accomplishment of these purposes.

(B) This chapter and any procedures adopted hereunder shall not create or otherwise establish or designate a particular class or group of persons who will or should be specially protected or benefited by the terms of this chapter or procedures adopted under this chapter.

(C) This chapter and procedures adopted hereunder shall place the obligation of complying with the requirements of this chapter and said procedures upon the permittee, and no provision shall impose any duty upon the town of Index, or any of its officers, employees, or agents. Nothing contained in this chapter or procedures adopted under this chapter shall be construed to create or form the basis for liability on the part of the town of Index or its officers, employees, or agents, for any injury or damage resulting from the failure of the permittee to comply with the provisions of this chapter, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this chapter or any procedures adopted under this chapter by the town of Index, its officers, employees, or agents. (Ord. 429 § 2, 2012).

12.24.030 Territorial application.

This chapter and the procedures adopted under this chapter shall be in effect throughout the town of Index. (Ord. 429 § 3, 2012).

12.24.040 Definitions.

As used in this chapter, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings.

(A) “Citation and notice” means a written document initiating a criminal proceeding issued by an authorized peace officer in accordance with the Criminal Rules for Courts of Limited Jurisdiction.

(B) “Directive memorandum” means a letter from the town to a right-of-way use permittee, notifying the recipient of specific nonconforming or unsafe conditions and specifying the date by which corrective action must be taken.

(C) “Director” means the mayor or town employee under his/her direction.

(D) “Franchised utilities” means utilities that have town approval to use town rights-of-way for the purpose of providing their services within the town, whether by written franchise or otherwise.

(E) “Hazardous waste” includes any and all such materials as defined by RCW 43.200.015 (radioactive wastes) and RCW 70.105.010(5), (6) and (15) (other hazardous wastes).

(F) “Nonprofit” means for charitable purposes and not for monetary gain.

(G) “Notice of violation” means a document mailed to a permittee or unauthorized user and posted at the site of a nonconforming or unsafe condition.

(H) “Permit” means a document issued by the town granting permission to engage in an activity not allowed without a permit.

(I) “Permittee” means a person, organization, company, or other entity to whom a permit is issued under this chapter.

(J) “Private use” means use of the public right-of-way, other than as a thoroughfare for ordinary transit of vehicles, pedestrians, or equestrians, for the benefit of a particular person or entity. Unless otherwise disallowed, customary on-street parking serving residences or businesses does not constitute private use.

(K) “Protected political speech” means any demonstration, assembly or other form of political speech or political expressive conduct within right-of-way that is protected from government interference under the First Amendment.

(L) “Right-of-way” means all public streets, alleys, and property granted or reserved for, or dedicated to, public use for streets and alleys, together with public property granted or reserved for, or dedicated to, public use for walkways, sidewalks, trails, shoulders, drainage facilities, bike ways and horse trails, whether improved or unimproved, including the air rights, subsurface rights, and easements related thereto.

(M) “Security device” means any and all types of bonds, deeds of trust, security agreements, or other similar instruments.

(N) “Stop work notice” means a notice posted at the site of an activity that requires all work to be stopped until the town approves continuation of work.

(O) “Underground location service” means the underground utilities location center that will locate all underground utilities prior to an excavation.

(P) “Town” means the town of Index.

(Q) “Unsafe condition” means any condition which the director reasonably determines is a hazard to health, or endangers the safe use of the right-of-way by the public, or does or may impair or impede the operation or functioning of any portion of the right-of-way, or which may cause damage thereto. (Ord. 429 § 4, 2012).

12.24.050 Powers of the director.

The director shall have the following powers:

(A) Prepare and adopt procedures as needed to implement this chapter and to carry out the responsibilities of the town. Such procedures do not require approval of the town council to be initially implemented; however, the council may by resolution direct that procedures, guidelines, fees, or other aspects of the permitting system be amended or modified to the satisfaction of the council;

(B) Administer and coordinate the enforcement of this chapter and all procedures adopted under this chapter relating to the use of rights-of-way;

(C) Advise the town council, other town departments, and any affected agencies on matters relating to applications for use of rights-of-way;

(D) Carry out such other responsibilities as required by this chapter or other codes, ordinances, resolutions, or procedures of the town;

(E) Assign the responsibility for interpretation and application of specified procedures to such designees as may be deemed appropriate;

(F) Present, together with a recommendation for action, completed permit applications required under this chapter to the town council for approval or denial. (Ord. 429 § 5, 2012).

12.24.060 Powers of the town council.

The town council shall have the following powers:

(A) Review and approve or deny applications for permits required under this chapter that are subject to the forty-five (45) day application review period identified in Section 12.24.090(D). The mayor or his/her designee shall review and approve or deny applications for permits that are not subject to the forty-five (45) day application review period.

(B) By resolution, review and modify procedures, guidelines, fees, penalties or other aspects of the permitting system. (Ord. 429 § 6, 2012).

12.24.070 Permit requirements.

(A) It is unlawful for anyone to make private use of any public right-of-way without a right-of-way use permit issued by the town, or to use any right-of-way without complying with all provisions of a permit issued by the town, unless such private use falls within the designated exceptions set forth in this chapter.

(B) General and specific permit requirements are defined in the procedures referenced in this chapter.

(C) Additional permits for any use may be required by other town codes or ordinances. The town does not waive its rights to any right-of-way by issuance of any permit. (Ord. 429 § 7, 2012).

12.24.080 Right-of-way use permits.

The following classes of right-of-way use permits are hereby established:

(A) Class A – Short-Term Nonprofit.

(1) Class A permits may be issued for use of a right-of-way for seventy-two (72) or less continuous hours for nonprofit purposes which do not involve the physical disturbance of the right-of-way.

(2) This class of use may involve disruption of pedestrian and vehicular traffic or access to private property and may require inspections, clean-up, and police presence. For periods longer than seventy-two (72) hours these uses will be considered Class D, long-term and permanent. If any of these uses are for profit, they are considered Class B.

(3) Class A permits include but are not limited to the following when for nonprofit purposes:

(a) Assemblies;

(b) Bike races;

(c) Block parties;

(d) Parades;

(e) Parking;

(f) Processions;

(g) Nonmotorized vehicle races;

(h) Street dances;

(i) Street runs.

(B) Class B – Short-Term Profit.

(1) Class B permits may be issued for use of right-of-way for seventy-two (72) or less hours for profit purposes which do not involve the physical disturbance of the right-of-way.

(2) This class of use may involve disruption of pedestrian and vehicular traffic or access to private property and may require inspections, clean-up, and police presence. For periods longer than seventy-two (72) hours these uses will be considered Class D, long-term and permanent.

(3) Class B permits include but are not limited to the following when they are for profit purposes:

(a) Fairs;

(b) House or other large structure moves other than those which require a Class E permit;

(c) Temporary sale of goods;

(d) Temporary street closures.

(C) Class C – Disturbance of City Right-of-Way.

(1) Class C permits may be issued for use of a right-of-way for activities that may alter the appearance of or disturb the surface or subsurface of the right-of-way on a temporary or permanent basis. The time allowed by the permit for construction of the permitted use shall not exceed one hundred eighty (180) days.

(2) Class C permits include but are not limited to:

(a) Boring;

(b) Culverts;

(c) Curb cuts;

(d) Paving;

(e) Drainage facilities;

(f) Driveways;

(g) Fences;

(h) Landscaping;

(i) Painting;

(j) Sidewalks;

(k) Street trenching;

(l) Utility installation/repair/replacement.

(D) Class D – Long-Term and Permanent.

(1) Class D permits may be issued for use of a right-of-way for activities for extended periods of time but which will not physically disturb the right-of-way. The time allowed by the permit for construction of the permitted use shall not exceed one hundred eighty (180) days.

(2) The use of a right-of-way for structures, facilities, and uses that involve capital expenditures and long-term commitments of use require this type of permit.

(3) Class D permits include but are not limited to:

(a) Air rights and aerial facilities;

(b) Bus shelters and stops;

(c) Access to construction sites and haul roads;

(d) Loading zones;

(e) Newspaper sale, distribution, and storage facilities;

(f) Recycling facilities;

(g) Sales structures;

(h) Sidewalk cafes;

(i) Special and unique structures, such as: awnings, benches, clocks, decorations, flagpoles, fountains, kiosks, marquees, private banners, public mailboxes, and street furniture;

(j) Underground rights;

(k) Utility facilities.

(E) Class E – Potential Disturbance of City Right-of-Way.

(1) Class E permits may be issued for use of a right-of-way, for a period not in excess of one hundred eighty (180) days, for those activities that have the potential of altering the appearance of or disturbing the surface or subsurface of the right-of-way on a temporary or permanent basis.

(2) Class E permits include but are not limited to:

(a) Frequent use hauling involving an average of six (6) loaded vehicles per hour during any eight (8) hour period in one (1) day, for two (2) or more consecutive days;

(b) Any hazardous waste hauling.

(3) Class E permits may be issued to a general contractor to authorize construction and fill hauling activities by the said general contractor and by subcontractors.

(F) Class F – Septic Systems and Effluent Transmission Lines.

(1) Class F permits include long-term permits for location of septic systems and/or septic effluent transmission lines on or across a right-of-way.

(2) Class F permits shall be granted only under the following conditions:

(a) The applicant shall demonstrate to the town’s satisfaction that no viable alternatives exist on privately owned property for the proposed use;

(b) Design and construction shall be to standards acceptable to the town;

(c) Safeguards against contamination of the town’s water distribution mains shall be assured to the satisfaction of the town;

(d) The permittee shall assume all liability connected with the permitted structures and improvements, including that for maintenance, repair, and any damages caused by leaks or spills;

(e) Class F permits shall be recorded against the titles of real property served by permitted systems, and the rights and responsibilities of the permittee shall transfer to subsequent owners of that property. (Ord. 429 § 8, 2012).

12.24.090 Application and processing of permits.

(A) To obtain a right-of-way use permit the applicant shall file an application with the town clerk.

(B) Every application shall include the location of the proposed right-of-way use, a description of the use, the planned duration of the use, applicant contact information, and all other information which may be required as specified in the procedures adopted under this chapter, and shall be accompanied by payment of the required fees.

(C) The director shall examine each application submitted for review and approval to determine if it complies with the applicable provisions of this chapter and procedures adopted under this chapter. Any town departments that have authority over the proposed use or activity may be requested to review and recommend approval or disapproval of the application. The director may inspect the right-of-way proposed for use to determine any facts which may aid in determining whether a permit should be granted. The director shall prepare a report with findings of fact and conclusions of law identifying whether the requirements of this chapter have or have not been met and noting any observed conflicts of the proposed activity with the rights and safety of the public or with any applicable law. The application will then be forwarded to the appropriate decision maker for action. If the decision maker finds that the application conforms to the requirements of this chapter and procedures adopted under this chapter and that the proposed use of such right-of-way will not unduly interfere with the rights and safety of the public, and if the application has not been disapproved by a department with authority, the decision maker shall approve the permit, and may impose such conditions thereon as are reasonably necessary to protect the public health, welfare, and safety and to mitigate any impacts resulting from the use.

(D) All applications for permits will be submitted at least forty-five (45) days before the planned need for the permit, or such greater period as may be reasonably required by the director. If unforeseen conditions require expedited processing the town will attempt to cooperate, but additional fees to cover additional costs to the town may be charged. Activities involving protected political speech shall not be subject to the forty-five (45) day permitting requirement; provided, that a permit is filed as far in advance of the proposed speech as circumstances reasonably allow.

(E) Upon submittal of a completed application, the town shall collect from the applicant an application fee in the amount set forth in the adopted fee schedule. (Ord. 429 § 9, 2012).

12.24.100 Permit fees and charges.

The fee for each permit shall be set forth in a fee schedule to be adopted by resolution of the town council.

(A) Application Fee. A nonrefundable application fee shall be charged for each right-of-way use permit application that is accepted for processing, counter service, and recordkeeping.

(B) Processing of Application Fee. A fee for the processing of applications may be charged. The amount of the fee shall be determined based upon the time and costs required to review, inspect, research, and coordinate the applicant’s data for each permit application. The processing fee may be different depending upon the class of right-of-way use permit involved.

(C) Daily Use Fee. Permits may include a fee for each day (or part thereof) for use of the right-of-way. The fee will compensate the town for monitoring and inspecting the site or activity. The daily use fee may be different depending upon the class of right-of-way use permit involved.

(D) Reimbursement of Actual Expenses. When a permit is issued, the town may impose a charge based on the actual cost to compensate for its time and expenses. These costs may include street crews, signal crews, and police, if required to assist in the activity. These costs may also include legal or other professional fees incurred in preparing permit documents. A refundable deposit or other security device may also be required. Costs of damage to town property, or expense of assistance by town employees, may be deducted from the deposit, charged against the security device, or billed to the permittee directly.

(E) Repair and Replacement Charges. If the town should incur any costs in repairing or replacing any property as the result of the permittee’s actions, the costs of repair and replacement shall be charged to the permittee. These charges will be for the actual costs to the town.

(F) Utilities shall be charged at an hourly rate for town inspections and other services pursuant to the adopted fee schedule.

(G) Waiver of Fees. Franchised utilities which must apply for permits because of town-initiated construction projects may be granted a waiver by the director of normal permit fees. This provision shall only apply to work that would not normally have been done by the utility.

(H) No charges may be dependent upon the content of any speech protected by the First Amendment. For example, costs attributable to increased police protection instigated by inflammatory speech may not be assessed against the permit applicant as well as the cost of any damages caused by third parties in response to inflammatory speech. (Ord. 429 § 10, 2012).

12.24.110 Specifications.

All work to be performed under any permit issued under this chapter shall conform to all town codes or ordinances, the current development standards of the town, and all other standards used by the town in the administration of this chapter. (Ord. 429 § 11, 2012).

12.24.120 Permit exception.

The following exceptions shall be authorized:

(A) A right-of-way use permit shall not be required of franchised utilities or town contractors when responding to emergencies that require work in the right-of-way, such as water or sewer main breaks, gas leaks, downed power lines, or similar emergencies; provided, that the town shall be notified by the responding utility or town contractor verbally or in writing, as soon as practicable following onset of an emergency. Nothing in this chapter shall relieve a responding utility or town contractor from the requirement to obtain a right-of-way use permit after beginning emergency work in the right-of-way.

(B) Permits shall not be required for routine maintenance, repair, and construction work performed by town utilities and town maintenance crews, or contractors awarded contracts to perform public works projects.

(C) Permits under this chapter shall not be required for persons using the right-of-way as pedestrians, while operating motorized or nonmotorized vehicles for routine purposes such as travel, commuting, or other personal business, or, unless otherwise disallowed, for customary on-street parking serving residences or businesses.

(D) Permits under this chapter shall not be required for maintenance of landscaping outside the traveled portion of any right-of-way; provided, that this exception shall not apply to any of the following:

(1) Removal of native vegetation, except invasive species, from any critical area or buffer.

(2) Mechanized grading, cut, or fill.

(3) Removal of any tree greater than six (6) inches DBH.

(4) Any landscaping or other improvement which has the intent or effect of preventing public access to town rights-of-way.

(E) Permits under this chapter shall not be required for a parade, procession, march or assembly of persons who assemble or travel in unison upon public pedestrian facilities, including but not limited to sidewalks, pathways and trails, for crowds of five hundred (500) people or less that do not involve any physical alteration of right-of-way or the placement of structures that impede the safe passage of pedestrians.

(F) Permits under this chapter shall not be required for a parade, procession, march or assembly consisting of persons, animals, vehicles, or any other combination thereof, which is to assemble or travel in unison on any public street, highway, alley, sidewalk or other city-designated public way and which (1) does not impede, obstruct, impair or interfere with free use of such public street, highway, alley, sidewalk, or other public way; (2) complies with normal or usual traffic regulations or controls; and (3) does not involve the physical alteration of right-of-way. (Ord. 429 § 12, 2012).

12.24.130 Revocation of permits.

(A) The director may revoke or suspend any permit issued under this chapter whenever:

(1) The work does not proceed in accordance with the plans as approved, or conditions of approval, or is not in compliance with the requirements of this chapter or procedures, or other town ordinances, or state laws;

(2) The town has been denied access to investigate and inspect how the right-of-way is being used;

(3) The permittee has misrepresented a material fact in applying for a permit;

(4) The progress of the approved activity indicates that it is, or will be, inadequate to protect the public and adjoining property or the street or utilities in the street, or if any excavation or fill endangers, or appears reasonably likely to endanger, the public, the adjoining property or street, or utilities in the street.

(B) Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized by the director.

(C) Continued activity following revocation or suspension under this section shall subject each and every violator to the maximum penalties provided by this chapter. (Ord. 429 § 13, 2012).

12.24.140 Renewal of permits.

Each permit shall be of a duration as specified on the permit. A permit may be renewed, if requested by the permittee before expiration of the permit; provided, however, that the use or activity is progressing in a satisfactory manner as reasonably determined by the director. (Ord. 429 § 14, 2012).

12.24.150 Performance deposits, security devices, and insurance.

(A) If the director determines that there is a potential for injury, damage, or expense to the town as a result of damage to persons or property arising from an applicant’s proposed use of any right-of-way, the applicant shall be required to make a cash deposit, or to provide a security device or insurance in a form acceptable to the director or designee for the activities described in the subject permit. The amount of the deposit, security device, or insurance shall be determined by the director or designee. The amount of the deposit, security device, or insurance shall not be based upon the content of any speech protected by the First Amendment. For example, the director may not require added security on the anticipation that a proposed use of right-of-way may cause added damage or clean-up due to the inflammatory content of the speech.

(B) The requirements for performance deposits, security devices, and insurance are based on considerations of permittee’s prior performance, nature of the proposed use, costs of the activity, length of use, public safety, potential damage to right-of-way, and potential liability or expense to the city, all excluding any costs attributable to the content of any speech protected by the First Amendment as identified in subsection (A) of this section. (Ord. 429 § 15, 2012).

12.24.160 Hold harmless.

As a condition to the issuance of any permit under this chapter, the permittee shall agree to defend, indemnify, and hold harmless the town, its officers, employees, and agents from any and all suits, clavims, or liabilities caused by or arising out of any use authorized by any such permit to the extent that the permittee’s liability is not increased due to the content of any speech protected by the First Amendment. (Ord. 429 § 16, 2012).

12.24.170 Guarantee.

When there is a need to ensure conformance with the town’s development standards, town or state construction standards, or other requirements, the applicant shall be required to provide a guarantee of workmanship and materials for the period of one (1) year. Such guarantee may be in the form of a cash deposit or a security device in a form and amount approved by the director. Notwithstanding the foregoing, utilities shall guarantee workmanship and materials until the next regularly scheduled overlay of the street. (Ord. 429 § 17, 2012).

12.24.180 Inspections.

As a condition of issuance of any permit or authorization which requires approval of the department, each applicant shall be required to consent to inspections by the town. (Ord. 429 § 18, 2012).

12.24.190 Correction and discontinuance of unsafe, nonconforming, or unauthorized conditions.

(A) Whenever the director determines that any condition on any right-of-way is in violation of, or any right-of-way is being used contrary to any provision of, this chapter or procedures adopted under this chapter or other applicable codes or standards, or without a right-of-way use permit, the director may order the correction or discontinuance of such condition or any activity causing such condition.

(B) The director is authorized to order correction or discontinuance of any such condition or activities following the methods specified in procedures adopted pursuant to this chapter.

(C) The director shall also have all powers and remedies which may be available under state law, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any condition specified in this section.

(D) The director is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as the director determines appropriate:

(1) Service of oral or written directives to the permittee or other responsible person requesting immediate correction or discontinuance of the specified condition;

(2) Service of a written notice of violation, ordering correction or discontinuance of a specific condition or activity within five (5) days of notice, or such other reasonable period as the director may determine;

(3) Revocation of previously granted permits where the permittee or other responsible person has failed or refused to comply with requirements imposed or notices served;

(4) Issuance of an order to immediately stop work until authorization is received from the town to proceed with such work;

(5) Service of summons and complaint or service of a citation and notice to appear by a law enforcement officer upon the permittee or other responsible person who is in violation of this chapter or other town ordinances.

(E) Any object which shall occupy any right-of-way without a permit is a nuisance. The department may attach a notice to any such object stating that if it is not removed from the right-of-way within twenty-four (24) hours of the date and time stated on the notice, the object may be taken into custody and stored at the owner’s expense. The notice shall provide an address and phone number where additional information may be obtained. If the object is a hazard to public safety, it may be removed summarily by the town. Notice of such removal shall be thereafter given to the owner, if known. This subsection shall not apply to motor vehicles.

(F) All expenses incurred by the town in abating any violation or condition shall constitute a civil debt owing to the town jointly and severally by such persons who have been given notice or who own the object or who placed it in the right-of-way, which debt shall be collectible in the same manner as any other civil debt.

(G) The town shall also have all powers and remedies which may be available under law or ordinance, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any conditions specified by the town. (Ord. 429 § 19, 2012).

12.24.200 Warning and safety devices.

(A) Warning lights, safety devices, signs, and barricades shall be provided on all rights-of-way when at any time there might be an obstruction or hazard to vehicular or pedestrian traffic. All obstructions on rights-of-way shall have sufficient barricades and signs posted in such manner as to indicate plainly the danger involved. Warning and safety devices may be removed when the work for which the right-of-way use permit has been granted is complete and the right-of-way restored to the conditions directed by the town.

(B) As a condition of the issuance of any right-of-way use permit, the director may require an applicant to submit a traffic detour plan showing the proposed detour routing and location and type of warning lights, safety devices, signs, and barricades intended to protect vehicular or pedestrian traffic at the site for which the right-of-way use permit is requested. If a traffic plan is required, no right-of-way use permit shall be issued until the traffic plan is approved.

(C) Any right-of-way use permit that requires a partial lane or street closure may require a certified flagperson, properly attired, or an off-duty police officer for the purpose of traffic control during the construction.

(D) All decisions of the director shall be final in all matters pertaining to the number, type, locations, installation, and maintenance of warning and safety devices in the public right-of-way during any actual work or activity for which a duly authorized right-of-way use permit has been issued.

(E) Any failure of a permit holder to comply with the oral or written directives of the director related to the number, type, location, installation, or maintenance of warning and safety devices in the public right-of-way shall be cause for correction or discontinuance as provided in this chapter. (Ord. 429 § 20, 2012).

12.24.210 Protection of adjoining property and access.

The permittee shall at all times and at the permittee’s expense preserve and protect from injury adjoining property by complying with such measures as the director may deem reasonably suitable for such purposes. The permittee shall at all times maintain access to all property adjoining the excavation or work site. (Ord. 429 § 21, 2012).

12.24.220 Preservation of monuments.

The permittee shall not disturb any survey monuments or markers found on the line of excavation work until ordered to do so by the director. All street monuments, property corners, bench marks, and other monuments disturbed during the progress of the work shall be replaced by a licensed surveyor, at the expense of the permittee, to the satisfaction of the director. (Ord. 429 § 22, 2012).

12.24.230 Protection from pollution and noise.

The permittee shall comply with all state laws, town ordinances, and the procedures adopted hereunder by the director to protect from air and water pollution and to protect from excessive noise. The permittee shall provide for the flow of all watercourses, sewers, or drains intercepted during the excavation work and shall replace the same in as good condition as the permittee found them, or shall make such provisions for them as the director may direct. The permittee shall not obstruct the gutter of any street, but shall use all proper measures to provide for the free passage of surface water. The permittee shall make provision to take care of all surplus water, muck, silt, clickings, or other runoff pumped from excavations or resulting from sluicing or other operations, and shall be responsible for any damage resulting from permittee’s failure to so provide. (Ord. 429 § 23, 2012).

12.24.240 Excavated material.

All excavated material which is piled adjacent to any excavation shall be maintained in such manner so as not to endanger those working in the excavation or pedestrians or users of the right-of-way. When the confines of the area being excavated are too small to permit the piling of excavated material beside the excavation, the director shall have the authority to require the permittee to haul the excavated material to a storage site and then rehaul it to the excavation at the time of backfilling. It is the responsibility of the permittee to secure the necessary permission and make all necessary arrangements for any required storage and disposal of excavated material. (Ord. 429 § 24, 2012).

12.24.250 Backfilling.

Backfilling in a right-of-way opened or excavated pursuant to a permit issued under the provisions of this chapter shall be compacted to a degree equivalent to that of the undisturbed ground in which the excavation was begun, unless the director determines a greater degree of compaction is necessary to produce a satisfactory result. All backfilling shall be accomplished according to town standards and specifications. All backfills shall be inspected and approved by the director prior to any overlaying or patching. (Ord. 429 § 25, 2012).

12.24.260 Right-of-way restoration.

(A) Permanent restoration of the right-of-way shall be made by the permittee in strict accordance with the standards and specifications of the town. Permanent restoration may include overlays of portions of the right-of-way which have been disrupted by excavation work.

(B) The permittee shall guarantee conformance with the town’s development standards and specifications. Acceptance of any excavation work or right-of-way restoration shall not prevent the town from asserting a claim against the permittee and permittee’s surety under the security device required by this chapter for incomplete or defective work, if such is discovered within the period of guarantee and maintenance. The presence of the director, or designee, during the performance of any excavation work shall not relieve the permittee of any responsibility under this chapter. (Ord. 429 § 26, 2012).

12.24.270 Billings and collections.

The town may establish administrative rules and procedures pertaining to the billing and collection of fees and charges adopted pursuant to this chapter. However, all fees shall be due not later than thirty (30) days following receipt of a billing statement from the town. (Ord. 429 § 27, 2012).

12.24.280 Appeals.

A decision of the director made in accordance with this chapter shall be considered a final administrative decision. A person aggrieved by such decision of the director may appeal such decision to the Index town council by filing a written notice of appeal within ten (10) days of such decision. (Ord. 429 § 28, 2012).

12.24.290 Civil penalties.

Violations of this chapter and the conditions of any permits issued pursuant to this chapter shall be subject to the procedures and penalties of Chapter 17.52, to the same extent as any violation of Titles 15 through 17. In cases of conflict between this chapter and Chapter 17.52, the more restrictive provision shall apply.

(A) Any person violating or failing to comply with any of provisions of this chapter shall be subject to a penalty of up to one thousand dollars ($1,000) per day for each violation from the date set for compliance in the final order until compliance with the order is achieved. Continuing penalties may be assessed by the provision of additional notices of violation each day that a penalty continues and an opportunity for hearing. No additional penalties for a continuing violation may be assessed without the provision of notice and the opportunity for a hearing. In addition to the actual penalty imposed, should the violation be affirmed on appeal, the town council shall assess to the appellant an amount for any documented enforcement costs incurred by the town in prosecuting the appeal before the town council. These costs shall include those expenses incurred in preparing the appeal, general clerical expenses, staff and council preparation time, site inspections, town attorney fees, and any other costs incurred by the town.

(B) The director shall determine the amount of the penalty assessed per day for each violation. Factors the director may consider in assessing the penalty include, but are not limited to, the severity of the violation, the person’s attempts to voluntarily comply with the notice and order, the person’s prior history of code violations, and any other factor or circumstance the director deems relevant.

(C) The penalty imposed by this section may, in addition to other available remedies, be collected by civil action brought in the name of the town. The director shall notify the town attorney of the name of any person subject to the penalty, and the town attorney shall, with the assistance of the director, take appropriate action to collect the penalty. The town may alternatively engage a collection agency for the purpose of collecting any such penalty.

(D) The violator may show as full or partial mitigation of liability as determined by the director:

(1) That the violation giving rise to the action was caused by the willful act, neglect or abuse of another beyond the violator’s control; or

(2) That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor or other circumstance beyond the control of the violator. (Ord. 429 § 29, 2012).

12.24.300 Misdemeanor.

In addition to any other administrative remedy provided in this chapter or by law or other ordinance, any person who willfully or knowingly violates any provision of this chapter or any order issued pursuant to this title, or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished as provided in RCW 9.92.030. Each day such violation continues shall be considered an additional misdemeanor offense. (Ord. 429 § 30, 2012).

12.24.310 Public nuisance.

All violations of this chapter are determined to be detrimental to the public health, safety and welfare and are public nuisances. The director, at his or her option, may cause all conditions which are determined to be in violation of this chapter to be abated pursuant to the procedures of Chapter 7.48 RCW. (Ord. 429 § 31, 2012).

12.24.320 Copy on file.

The statutes and regulations adopted in this chapter are on file in the office of the city clerk, and are open for public inspection. (Ord. 429 § 32, 2012).