HomeMy WebLinkAboutORD-17-07 Replace Ch 12.64- Public Right-of-WaysORDINANCE NO. 17-
07 AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE REPEALING CHAPTER 12.
64 OF THE ORANGE MUNICIPAL CODE
AND ADDING A NEW CHAPTER 12.64 RELATING
TO ENCROACH-MENTS IN THE
PUBLIC
RIGHT-OF-WAYS.WHEREAS, the City's right-of-ways are
becoming increasingly impacted with both above and below ground facilities due in part to
increasing competition for public right-of-way space from various service
providers, including cable television operators, video service providers, telephone
companies and providers of fiber optics; and WHEREAS, under State and Federal law the City
is required, in many cases, to permit service providers
to utilize the City's right-of-ways; and WHEREAS, the
City's right-of-
ways are physically limited and reqUIre proper management by the City;WHEREAS, pursuant to Public
Utilities Code Section 7901.1 the City has the right to exercise reasonable control as to
the time, place, and manner in
which its roads, highway and other rights of way are accessed.
NOW, THEREFORE, THE
CITY COUNCIL OF THE CITY OF ORANGE DOES ORDAIN AS FOLLOWS:SECTION I:
The Orange Municipal Code is amended by
repealing Chapter 12.64,which is titled "Obstructions to City Streets."SECTION II:
The Orange Municipal Code is amended
by adding a
new Chapter 12.64 toreadas
follows:
Chapter 12.64 ENCROACHMENTS IN
THE PUBLIC RIGHT -OF -
WAYS Sections:12.64.010 Purpose; Authority.12.64.020
Definitions.12.64.030 Undergrounding and Collocation Policies of
the City.12.64.040
Limitations on Use of Public Right-of-
ways.12.64.050 Permit Required.12.
64.060 Exemptions from Permit Requirements.12.
64.070 Permit Application and Procedures.12.64.080
12.64.100 Permit Term.
12.64.110 Emergency Excavations.
12.64.120 Obligations of Permittees.
12.64.130 Revocation of Permit.
12.64.140 Display of Permit.
12.64.150 Payment of Fees.
12.64.160 Required Deposits.
12.64.170 Permittee Liability.
12.64.180 Acceptance of Permit by the Applicant.
12.64.190 Non Assignment of Permit.
12.64.200 Changes in Permit and Work.
12.64.210 Authority to Remove Encroachments.
12.64.220 Notice to Remove Encroachment.
12.64.230 Service of Notice-
Contents.12.64.240 Action for Abatement of
Encroachment.12.64.250 Removal of Encroaching Facility at Owner's
Expense.12.64.260
Violation-Infraction.12.64.010
Purpose; Authority.A. The City's right-of-ways (hereafter ROW) are held in trust by
the City for the benefit of the public. The ROW is a
physically-limited resource which requires proper management to: minimize interference with the
public's safe travel, use and enjoyment; establish efficiencies that will
promote fair and equal competition;minimize the potential for ROWand other City
and public uses from becoming more costly and burdensome; ensure that
encroachments do not interfere with ROW use by existing public utilities and public
agencies; and to enhance the aesthetic appearance of encroachments so they
do not detract from business,
increase crime or create blight.B. Under applicable state and federal law the
City is authorized to exercise reasonable control over access to and use of its
ROW. Both below ground and aboveground facilities in the ROW
have impacts, although aboveground facilities by their nature have more potential for line of
sight, graffiti and visual impacts than below ground facilities. However, both take up
limited space in the ROW and both interfere either periodically or permanently
to varying degrees with the public's use of the ROW. The City is
home to many unique communities,including, but not limited to: (1) the
Old Towne Orange National Register District, which is one of the largest historic districts in
the State of California and is listed on the National Register of
Historic Places; (2) neighborhoods consisting of architecturally significant Eichler tracts; and (
3) the Orange Park Acres community, which is characterized by large
lots and horse property. Without special recognition of the unique
character of these neighborhoods, aboveground facilities have the
potential
12.64.020 Definitions.
For the purpose of this chapter, the words, phrases, and terms defined in this section have the
meanings set forth below unless a different meaning is clearly intended by the use and context of
the word, phrase, or term:
A. DIRECTOR means the Director of Public Works of the City or his or her
designee.
B. ENCROACHMENT means any facility or structure of any kind or character that
is placed in, under, or over any ROW or any excavation in the ROW.
C. ENCROACHMENT PERMIT means a permit issued to a person by the Director
of Public Works for the purpose of encroaching within the ROW.
D. FACILITY means any fiber optic, coaxial, or copper cable; telephone,
telecommunications, electric or other wire or line; oil, gas, water, or other
pipeline; duct, conduit, cabinet, pedestal, vault, tunnel, drain, manhole, splice box,
marker, or pole structure; and any other appurtenance, structure, equipment, or
tangible thing.
E. PERMITTEE means any person or public agency that has obtained an
encroachment permit as defined in this section.
F. PERSON means any individual, business, firm, corporation, partnership, limited
liability company, or other legal entity that places, constructs, owns, controls,
operates, manages, or uses any facility in, upon, above, beneath, or across any
public right-of-way. For the purposes of this chapter, the term person
does not include a
public agency.G. PUBLIC AGENCY means any city, county, public corporation, or
public district established in accordance with
state law.H. PUBLIC IMPROVEMENTS means street improvements, storm
drainage, sewer,water, landscaping and other improvements that the City will
maintain
upon completion.1. PUBLIC RIGHT -OF - WAY or ROW means the area in, upon, above, beneath,
or across any public street, lane, court, alley, boulevard, sidewalk, median,
parkway,or easement for vehicular or pedestrian travel within the
City.J. PUBLIC UTILITY means any private corporation authorized by law to
establish and maintain any works or facilities in, under, or over any public street, or
ROW.12.64.030 Undergrounding and Collocation Policies of the
City.A. Promotion of Undergrounding. It is the policy of the City to promote
the undergrounding of facilities whenever and wherever feasible. Whenever
existing facilities are located underground along a particular ROW, new facilities must
be
installed underground along that public ROW, at permittee's sole expense.
Consistent with applicable law no new aboveground facilities shall be authorized
by the City in areas where existing facilities are underground.
B. Limits on Encroachments. It is the further policy of the City to limit the number
and to control the location of aboveground facilities that are used in conjunction
with underground facilities in a manner that is consistent with technical
requirements for providing high-quality utility and other services.
Whenever feasible and financially practicable, permittees must place all newly
installed facilities underground or in flush-mounted vaults. Permittees
must provide advance notification to all affected adjacent property owners when
locating new facilities in order to minimize inconvenience and disruption to
residents
and businesses.C. Excess Capacity; Collocation. Whenever excess capacity is available
to a permittee on reasonable terms and conditions as determined by
the appropriate regulatory bodies and owner of a facility, new facilities must be
installed within existing underground ducts or conduits. Where existing poles or
other wire-holding structures are available for use on such reasonable terms
and conditions,the Director or the City Council may require those poles and structures to
be used if it is determined that the public convenience would be enhanced by
that use.12.64.040 Limitations on Use of
Public Right-of-ways.A. The facilities of a permittee must be
located, constructed, installed, and maintained in a manner that will not endanger, interfere with,
or limit the normal and customary use, including traffic and travel, of the ROW
or of
any adjacent private property.B. If a permittee creates a hazardous or unsafe
condition, or an unreasonable interference with the use of public or private property,
the permittee must remove or modify the facility to eliminate
that condition or interference.C. A permittee shall not place a facility in the ROW
where it will unreasonably interfere with any of the following: (1) existing or known future
uses by the City of the public ROW; (2) the rights of private property owners
as determined by the Director; (3) existing public utilities or public
agencies; (4) traffic control systems; or (
5) any City-owned facilities.
12.64.050 Permit Required.No person shall place or maintain a facility in a ROW without
having first obtained a permit from the Director unless explicitly exempted
by Section 12.64.060.12.64.
060 Exemptions from Permit Requirements.A. The provisions of this chapter do not apply to officers
or employees of the City acting in the
discharge
B. The provisions of this chapter do not prevent any public utility or public agency
from lawfully maintaining, operating or installing any facility on or under any
ROW, from excavating in the ROW in accordance with existing franchises or
from making emergency excavations as may be necessary for the preservation of
life or property. Nothing in this chapter is intended to contravene the authority
vested by law in the California Public Utilities Commission, and in the event of a
conflict, the regulations of the Public Utilities Commission shall govern where the
law requires.
C. The provisions of this chapter do not apply to any person who is a party to an
existing agreement or franchise with the City to the extent this Chapter would
exceed the City's authority to modify encroachments into its ROW. In such a
case, upon the expiration or termination of that agreement or franchise, that
person will become subject to this chapter. If an existing agreement or franchise
for use of the ROW contains a provision for its renewal or extension, then the
renewal or extension will be negotiated and executed in accordance with the
provisions of this chapter.
12.64.070 Permit Application and Procedures.
A. General. Applications for encroachment permits may be obtained from the
Director. Permit application forms and processing procedures and other
reasonable conditions not specifically set forth herein, shall be as established by
the Director.
B. Efforts to Underground and Collocate Facilities.
1) When the Director determines that a new aboveground facility will have a
negative impact, an applicant must describe in writing why under
grounding of a proposed aboveground facility is technologically and
economically infeasible. At a minimum, an applicant must demonstrate
that it conducted a written analysis that concluded that under grounding
was not feasible.
2) When the Director determines that a new aboveground facility will have a
negative impact, an applicant must describe in writing its efforts to
collocate any proposed aboveground facility with any other aboveground
facility previously installed, or proposed to be installed.
C. Facility Plans. The Director may require such detailed plans as are deemed
necessary to determine the exact location, nature, dimensions, duration, and
purpose of the proposed facility. The form and content of all plans shall be in
accordance with standards approved by the Director.
D. Graffiti Removal Plan. If a facility proposed by an applicant for an encroachment
permit is determined by the Director to be susceptible to graffiti vandalism, then
the applicant must comply with either of the following requirements:
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1) Provide a written commitment to comply with Section 8.37.075 of the
Orange Municipal Code, which section is titled "Graffiti on Private
Structures on Public Property"; or
2) Submit a voluntary pro-active graffiti removal plan that will be subject
to the Director's approval and that provides, at a minimum, for all of
the following: (i) graffiti-resistant coatings on the facility; (ii)
a graffiti hotline" telephone number that persons can call to
report graffiti vandalism; (iii) a procedure for graffiti removal that will cause
graffiti to be removed within two business days after it is reported; and (
iv) periodic inspections of the facility to ensure prompt removal of
the graffiti.E. Traffic Control Plans. If required by the Director, an applicant must
submit with its application traffic control plans for all proposed work within any ROW
that are in accordance with industry-accepted
traffic engineering standards.F. Plan to Mitigate
Adverse Visual Impacts.1) If the Director determines that an aboveground facility has
the potential to create a significant adverse visual impact in
any residential neighborhood,the application shall be forwarded to
the Community Development Director for a determination, which determination shall
be rendered within five business days. Except when precluded by
operational requirements, if requested by the Director, an applicant must submit with
its application for a facility that will be visible from the public ROW a
plan for screening,camouflaging, or otherwise mitigating any
adverse visual impacts.2) If the Director receives a permit application for
an aboveground facility that is proposed to be located within the Old
Towne Orange National Register District, it shall be referred to
the Community Development Director. The Community Development Director
shall, in consultation with the City's Historic Preservation Planner, within
five business days make a determination as to whether or not the aboveground
facility has the potential for having a significant impact on an historical
resource and/or the Old Towne Orange National Register District. If
the determination is that a significant potential impact exists,
the Community Development Director shall, in conjunction with the Director, the
City's Historic Preservation Planner and the applicant, discuss
and implement mitigation measures upon the placement and/or design of the
aboveground facility to ensure there is no significant negative impact. No permit
shall be issued until such impacts are mitigated to the satisfaction
of the
Community Development Director.3) The Community Development Director may in
his reasonable discretion and in consultation with the Director, require that
permit applications for aboveground facilities in other areas of the City be
forwarded to the Community Development Director if there is a reasonable
potential for an aboveground facility to have a significant negative impact to
such an area due to its unique characteristics. If so,
the
Director shall provide a map to the Director outlining the boundaries of
such areas. The Community Development Director shall make a
determination within five business days of receipt of a permit application
as to whether the aboveground facility has a significant potential impact.
If the determination is that a significant potential impact exists, the
Community Development Director shall, in conjunction with the Director
and applicant, discuss and implement mitigation measures to address the
potential impact.
G. Public Notification Plan. If required by the Director, an applicant must submit
with its application for a facility a public notification plan setting forth procedures
for notifying residents and businesses adjacent to the proposed installation of the
facility prior to the commencement of construction.
H. Consent of Public Agencies, Utilities, or Property Owners. The applicant is
responsible for securing the consent of any public utilities or public agencies that
may be required, or permission from private property owners for construction on
their property. Evidence of any required consents in a form satisfactory to the
Director shall be submitted with the permit application.
12.64.080 Action by the Director.
Within 30 days of submitting the application, the Director shall either approve or deny the
application or inform the applicant that the application is incomplete and state the reasons. Upon
finding that the application for the requested encroachment permit conforms to the provisions of
this chapter and other applicable provisions of this code, the Director may issue the permit. If
the Director finds that the application for the requested encroachment permit is in conflict with
any provisions of this chapter or any other applicable provisions of this code, the Director may
deny the permit and set forth in writing the reasons for that denial.
12.64.090 Appeal of the Director's Action.
A. If an applicant is dissatisfied with a decision of the Director with respect to the
denial of an encroachment permit or the imposition of conditions of approval, that
decision may be appealed to the City Council. The appeal shall be in writing to
the City Clerk and shall set forth the basis of the appeal.
B. The City Clerk shall schedule the appeal for consideration by the City Council at
the earliest possible regular City Council meeting.
C. The City Council may uphold or reverse the Director's denial ofa permit and may
modify, delete, or add to any of the conditions of approval specified by the
Director that are consistent with the provisions of this chapter.
12.64.100 Permit Term.
The term of the permit shall be as set forth in the approved permit. A permit for installing and
maintaining a facility may be granted by the Director. The Director may terminate a continuing
permit by written order that is mailed 15 days prior to the date of termination and may provide
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for a time that all installation and repair work be completed within a specified time. The permit
term may be renewed or extended at the discretion of the Director.
12.64.110 Emergency Excavations.
A. Nothing in this chapter shall be construed to prevent a permittee from taking any
action that is necessary to protect life or property or to restore interrupted utility
or other service provided by a permittee when that necessity occurs during days or
hours when the Department of Public Works is closed.
B. If a permittee takes any emergency action to excavate in the ROW, the permittee
shall apply for an emergency permit within 24 hours after the offices of the
Department of Public Works are open. The application must contain a written
statement specifying the reason for the emergency action and describing the work
performed and the work remaining.
12.64.120 Obligations of Permittees.
In addition to the obligations imposed upon permittees by this chapter, by the encroachment
permit conditions, and by applicable laws and regulations, a permittee must comply with the
following obligations:
A. Maintenance of Facilities. All facilities of a permittee must be maintained in
compliance with the conditions specified in an encroachment permit, and in
compliance with all applicable statutes, ordinances, rules, regulations, orders, and
decisions adopted or issued by any federal, state, or local governmental body,
agency, or court. A permittee's failure to properly maintain its facilities may, in
certain circumstances, provide cause for the Director to revoke the encroachment
permit, in which case the facility must be removed and the area restored to its
prior condition.
B. Identification of Facilities. Each visible facility installed in the ROW must be
clearly identified with the name of the permittee and where feasible, the
permittee's toll-free telephone number. The Director may adopt orders
or regulations to specify other appropriate methods for the identification of a
facility.C. Facility Location Data. To the extent feasible, available and not inconsistent
with system security, a permittee must provide to the Director data in a digital or
other format specified by the Director that identifies all geographic locations
of permittee's facilities that are in the
ROW.D. Use of Pedestals. To the extent feasible and financially practicable, a
permittee must place all aboveground active and passive equipment in flush-
mounted or low-profile waterproof pedestals whose design, size, placement,
color (within the manufacturer's specifications), and appearance have been approved
in writing
by
12.64.130 Revocation of Permit.
A. At the option of the Director, an encroachment permit may be revoked at any time
whenever:
1) It appears to the Director that the continuance of the encroachment,
whether because of changed conditions or otherwise, interferes with full,
adequate, or safe public use of the ROW; or
2) The permittee fails to comply with or violates any City ordinance, City
standards, regulations, or any material condition of the encroachment permit.
B. Upon revocation of the permit, the permittee shall immediately restore the ROW
to the original condition as required by the Director. If the restoration is not
completed within the time specified by the Director, the City may take all
necessary action that is required to restore the ROW. All costs incurred by the
City for enforcement of this section, including reasonable attorneys' fees, shall be
at the expense of the permittee.
12.64.140 Display of Permit.
The permittee shall keep any permit issued pursuant to this chapter at the site of the work, or in
the cab of a vehicle when movement on a public street is involved. The permit shall be shown to
any authorized representative of the Director or any law enforcement officer on demand.
12.64.150 Payment of Fees.
Prior to the issuance of a permit, the applicant shall pay all applicable fees; provided that public
utilities and public agencies may, at the option of the Director, make payments for the fees when
billed by the City rather than by advance payment.
12.64.160 Required Deposits.
Prior to issuance of a permit, the permittee shall deposit with the City cash or a certified/
cashier's check in an amount to be fixed by the Director. That amount will be sufficient to
reimburse the City for the costs of restoring the ROW to its former condition and for the costs of
inspections.
12.64.170 Permittee Liability.
Permittee shall agree to hold the City, its officers and employees, harmless from all liability,
claims, suits, or actions for all damages to any person or property alleged to have been incurred
by reason of the permittee's installation, operation, maintenance, or removal of facilities
authorized by an encroachment permit.
12.64.180 Non-Assignment of
Permit.Permits shall be issued only to the person named in the application and may not be assigned
by the permittee to another person and may be
revoked.
12.64.190 Changes in Permit and Work.
No changes may be made in the location, dimensions, or character of the facilities, or the
duration of the encroachment permit, except upon written authorization of the Director.
12.64.200 Authority to Remove Encroachments.
If there is no valid encroachment permit for a facility, or if the material terms of the permit are
not complied with, the Director may summarily abate, remove, or by notice may require the
removal of such a facility.
12.64.210 Notice to Remove Encroachment.
The Director may, by written notice, require the removal from any City street of any other
facility not specified above in Section 12.64.220, if there is no valid permit for that
encroachment or if the terms of the permit are not followed.
12.64.220 Service of Notice-
Contents.The notices referred to in Sections 12.64.220 and 12.64.230 shall be served upon the owner
or occupant of the land, or the person owning or controlling the facility. If such person is not
known or has not left a current address, the notice shall be posted on the facility. The notice
shall specify the location of the facility and shall require the removal of that facility within ten
days.12.64.230 Action for Abatement of
Encroachment.If the owner or occupant of the land, or the person owning or controlling the facility, denies
that an encroaching facility exists, or refuses either to remove it or to permit its removal, the
City may commence in any court of competent jurisdiction an action in declaratory relief
and abatement in the name of the
City.12.64.240 Removal of Encroaching Facility at Owner's
Expense.If the owner or occupant of the land, or the person owning or controlling the facility, admits
that an encroaching facility exists, and if the encroaching facility is not removed within ten days
from and after service or posting of the notice, the City may remove the encroaching facility at
the expense of its owner, or at the expense of any other person causing the encroaching facility
to
exist.12.64.250
Violation-Infraction.Any person violating any of the provisions of this chapter shall be guilty of an
infraction and,upon conviction thereof, shall be
subject to:A. A fine of $75 for a
first violation;B. A fine of $150 for a second violation of this chapter within one
year; and C. A fine of $250 for each additional violation of this chapter within
one
SECTION III: Should any section, subsection, clause, or provision of this Ordinance
for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality
shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it
being hereby expressly declared that this Ordinance, and each section, subsection, sentence,
clause, and phrase hereof would have been prepared, proposed, approved, and ratified
irrespective of the fact that anyone or more sections, subsections, sentences, clauses, or phrases
be declared invalid or unconstitutional. This Ordinance shall be prospective in application from
its effective date.
SECTION IV: A summary of this Ordinance shall be published and a certified copy
of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5)
days prior to the City Council meeting at which this Ordinance is to be adopted. A summary of
this Ordinance shall also be published once within fifteen (15) days after this Ordinance's
passage in a newspaper of general circulation, published and circulated in the City of Orange.
The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of such
adopted Ordinance along with the names of those City Council members voting for and against
the Ordinance in accordance with Government Code Section 36933. This Ordinance shall take
effect 30 days from and after the date of its final passage.
Adopted this 23rd day of October, 2007.
ATTEST:
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STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF ORANGE )
I MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that he
foregoing Ordinance was introduced at the regular meeting of the City Council held on the 9th day of
October, 2007, and thereafter at the regular meeting of said City Council duly held on the 23rd day of
October, 2007, was duly passed and adopted by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCILMEMBERS: Smith, Murphy, Cavecche, Dumitru, Bilodeau
COUNCILMEMBERS: NONE
COUNCILMEMBERS: NONE
COUNCLIMEMBERS: NONE
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