Chapter 12.14
PROHIBITION OF EXCAVATIONS
Sections:
12.14.020 Emergency excavation.
12.14.030 Violation of chapter.
12.14.040 Administrative penalties.
12.14.050 Civil penalties and fees.
12.14.060 Criminal penalties and fees.
12.14.010 Permit prohibited.
No permit to excavate in newly renovated, overlaid, rehabilitated or reconstructed streets shall be granted for three years after completion of street renovation as shown on the current street moratorium list maintained by Development Services. Additionally, no permit shall be granted to excavate in slurry sealed, cape sealed, or other seal-coated streets for a period of one year following completion of stated renovation. Utilities shall determine alternate methods of making necessary repairs to avoid excavating in newly renovated streets. Exceptions to the above are as follows:
A. Emergency which endangers life or property;
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;
E. Other situations upon a finding by the Director of Development Services that the public benefit outweighs the damage done to the street by excavation.
All permits which are issued under subsections A through E of this section shall be in accordance with the standards, details and specifications established by and on file at Development Services. Permission to excavate under these terms shall only be allowed upon receipt of written permission by the Director of Development Services. (Ord. 512 § 1, 1999)
12.14.020 Emergency excavation.
Nothing contained in this chapter shall be construed to prevent any person from excavating a street to the limited extent necessary for the preservation of life or property when such necessity arises during days or times when the Development Services Department is closed. In the event that any person takes any action to excavate or cause to be excavated the public right-of-way pursuant to this section, such person shall apply for an emergency permit within four hours after Development Services is first reopened. The applicant for an emergency permit shall submit a written statement of the basis of the emergency action and describe the work performed. An emergency permit shall not be issued if the Director finds that an emergency did not exist or that the excavation exceeded that necessitated by the emergency. (Ord. 512 § 1, 1999)
12.14.030 Violation of chapter.
The Director of Development Services (“Director”), shall have authority to enforce this chapter. Upon a determination by the Director that a person has violated any provision of this chapter, the standard plans and specifications, the design manual, notices, orders, regulations, or rules of the City, any term, condition, or limitation of any permit or is subject to any outstanding fees, deposits, or other charges, the Director shall serve notice on said person to abate the violation. Any person whom the Director determines to be responsible for violating this chapter may be subject to any or all of the penalties specified in this chapter. (Ord. 512 § 1, 1999)
12.14.040 Administrative penalties.
A. The Director shall notify the person responsible for a continuing violation that they have 72 hours to correct or otherwise remedy the violation or be subject to the imposition of administrative penalties. For violations subject to the incomplete work provisions of this chapter, the person responsible shall be notified they have 24 hours to remedy the violation or be subject to the imposition of administrative penalties. For those violations that create an immediate danger to health or safety or are otherwise subject to emergency remediation, the person responsible shall be notified they must immediately remedy the violation or be subject to the imposition of administrative penalties.
B. Administrative penalties may be assessed pursuant to subsection A of this section up to $1,000 per day, per violation.
C. In addition to the administrative penalty assessed pursuant to subsection A of this section, the Director shall assess fees to cover the reasonable costs incurred in enforcing the administrative penalty, including, but not limited to, inspection costs and administrative overhead.
D. Penalties and fees assessed under this section shall continue to accrue against the person responsible for the violation until the violation is corrected or otherwise remedied in the judgment of the Director.
E. The Director, or his or her designated representative, is responsible for charging and collecting any penalty or fee assessed pursuant to this section. The Director shall notify in writing the person responsible for the violation of the cost of the penalty and fee and declare that such costs are due and payable to the City. If the penalty and fee are not paid within 30 days of this notice, the Director shall pursue collection of the penalty and fee.
F. Any person who has been assessed administrative penalties or fees may seek administrative review of such penalties and fees by filing an appeal with the Director that specifies in detail the basis for appeal. Within 20 days of the receipt of the appeal, unless extended by mutual agreement of the affected parties, the Director shall cause a hearing to be held before the City Manager. The decision of the City Manager shall be final. (Ord. 512 § 1, 1999)
12.14.050 Civil penalties and fees.
A. The City Attorney may commence an action for injunction, summary abatement, or abatement of any violation of this chapter, and for assessment and recovery of a civil penalty and attorney fees for such violation and litigation.
B. Any person who violates this chapter may be liable for a civil penalty, not to exceed $1,000 for each day such violation is committed or permitted to continue. Such penalty shall be assessed and recovered in a civil action brought by the City Attorney in any court of competent jurisdiction. In assessing the amount of the civil penalty, the court may consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the wilfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth. The City shall also be entitled to seek recovery of reasonable attorney’s fees and costs incurred in bringing a civil action pursuant to this section.
C. In undertaking enforcement of this chapter, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, any obligation for which the City is liable in money damages to any person who claims that any breach of duty related to or arising from this chapter proximately caused their injury. (Ord. 512 § 1, 1999)
12.14.060 Criminal penalties and fees.
The City may institute criminal proceedings in the enforcement of this chapter as set forth in the Poway Municipal Code. (Ord. 512 § 1, 1999)