CHAPTER 2
EXCESS RIGHT-OF-WAY USE

SECTION:

9-2-1:    Creation

9-2-2:    Application

9-2-3:    Standards Of Review

9-2-4:    Fee Determined

9-2-5:    Minimum Permit Requirements

9-2-6:    Other Property Not Subject To Permit

9-2-7:    Definitions

9-2-1 CREATION:

There are hereby created procedures for the granting of revocable permits for the temporary use of excess public right-of-way, and for easements. (Amd. Ord. 4912, 8-20-01)

9-2-2 APPLICATION:

A.    Any person, partnership or corporation desirous of temporarily or permanently using and occupying unneeded and unused public right-of-way and whose property directly abuts and adjoins such public right-of-way, may apply to the Community and Economic Development Administrator or his/her designee to secure a revocable permit or permanent easement for such use. Such application shall include sufficient and specific plans as to the proposed use and any such use and occupancy shall be in compliance with all of the City’s laws and ordinances. If such application is for a permanent easement, that application shall additionally include the following:

1.    Evidence, such as a title policy, title search or other similar mechanism showing that the applicant owns the underlying fee to the public right-of-way; or

2.    If the applicant is not the owner in fee of the property burdened by the right-of-way, then a quit claim deed or easement from the fee owner; or

3.    In doubtful cases, or where ownership cannot be proven, what title history is available, and a covenant running with the land holding the City harmless from any and all later claims for damages, inverse condemnation, injunction or other action premised upon the City’s granting of the permanent easement; or

4.    Where the City is the fee owner of the property in question, subsections A.1 through A.3 of this Section shall be satisfied. (Amd. Ord. 4912, 8-20-01; Ord. 5156, 9-26-05; Ord. 5450, 3-2-09)

B.    Whenever application is made for the construction and maintenance of any bus shelter or similar improvement within the core area of the City, then approval thereof shall likewise be given by the City Council’s Transportation Committee. (Ord. 3810, 5-7-84)

9-2-3 STANDARDS OF REVIEW:

A.    Revocable Permits: Prior to the issuance of any revocable permit, the Community and Economic Development Administrator or designee shall find and determine that the City has no foreseeable use or need for such excess or unused public right-of-way for the period of time of the permit.

B.    Permanent Easements: Prior to the issuance of any permanent easement, the Community and Economic Development Administrator or designee shall review the application and determine that the easement is the minimum that will be necessary, that the easement will not negatively affect the current or anticipated future use of the right-of-way, and that the public good, in balance, is furthered by such easement. The easement is intended to allow granting of minor easements for eave overhangs, foundation footings or similar minor uses when approved by the Administrator, when the structures are deemed to be of significant benefit to the City. Such permanent easement shall be limited to no more than three feet in width for underground structures such as foundation footings, and no more than eight feet in width for structures above ground such as eave overhangs or bay windows. In no case shall aboveground structures be less than 14 feet from ground elevation, nor shall they extend over the surface of a paved street, but shall be limited to over sidewalks, alleys, landscape areas, or unimproved areas.

C.    Vacation Of Right-Of-Way: If the subject right-of-way will not be necessary for future public use, then the applicant should be encouraged to apply for a vacation of the right-of-way. The application for use of right-of-way shall be tabled until the applicant refuses to apply for vacation or the vacation is denied by the City Council. If the vacation is granted, the application for use shall be dismissed.

D.    Authority And Conditions: The Community and Economic Development Administrator or designee shall further have the right to impose such conditions or terms as may appear reasonable under the circumstances in order to protect the public safety, welfare, general appearance and aesthetics of the subject area. The Administrator shall likewise have the authority to deny the permit should it find that it is not in the public interest and will not further the public safety, welfare, general appearance and aesthetics of the subject area. (Ord. 4050, 3-9-87; amd. Ord. 4912, 8-20-01; Ord. 5156, 9-26-05; Ord. 5450, 3-2-09)

9-2-4 FEE DETERMINED:

When an application is approved, the Community and Economic Development Administrator or designee shall determine a nonrefundable fee as established by ordinance for the temporary use of the right-of-way or granting of a permanent easement. The fee shall be as stipulated in RMC 4-1-180E. (Ord. 4053, 4-6-87; amd. Ord. 4723, 5-11-98; Ord. 4912, 8-20-01; Ord. 5156, 9-26-05; Ord. 5450, 3-2-09)

9-2-5 MINIMUM PERMIT REQUIREMENTS:

A.    Termination Of Revocable Permits: All revocable permits shall be subject to termination upon thirty (30) days’ written notice by the City. (Ord. 3810, 5-7-84)

B.    Insurance Required: Any easement applicant under this Section or any permittee shall provide, prior to the issuance or grant of any such revocable permit or permanent easement, sufficient public liability and property damage insurance with limits of not less than one hundred thousand dollars/three hundred thousand dollars ($100,000.00/$300,000.00) on account of public liability and not less than fifty thousand dollars ($50,000.00) on account of property damage. Copies of such insurance policy or policies shall be furnished unto the City with a special endorsement in favor of the City. Upon showing of a hardship and at the discretion of the Community and Economic Development Administrator or his/her designee, the insurance requirements may be reduced or waived for single-family or two-family residential applications. For municipalities or utilities that are self insured, there may be substituted a statement of self insurance showing the ability to answer for damages in the amounts stated in this paragraph. (Ord. 4087, 10-12-87; Ord. 5450, 3-2-09)

C.    Agreement Required: Any easement holder or permittee shall furnish unto the City an appropriate hold harmless and indemnity agreement as may be approved by the City Attorney and/or a performance or maintenance bond.

D.    Cancellation Or Rescission: In case of any nonpayment of the established fee, or failure to maintain the insurance or indemnity agreement by such user, the revocable permit shall be deemed cancelled, or the easement rescinded. (Amd. Ord. 4912, 8-20-01; Ord. 5156, 9-26-05)

9-2-6 OTHER PROPERTY NOT SUBJECT TO PERMIT:

All other public properties, excluding rights of way, which may be subject to rent or lease, shall remain within the jurisdiction of the executive department of the City, subject to final approval by the legislative body. (Ord. 3810, 5-7-84)

9-2-7 DEFINITIONS:

CORE AREA: For the purposes of this Section, 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. (Ord. 4050, 3-9-87)

PUBLIC BENEFIT: For the purposes of this Section, a use shall be one of “public benefit” when the use of the 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. (Ord. 4050, 3-9-87; amd. Ord. 4912, 8-20-01)