* For statutory provisions authorizing cities to prohibit and prevent encroachment on public ways, see Gov. Code § 38775.
Sections:
12.04.010 Definitions.
12.04.020 Permit – Required.
12.04.030 Permit – Exemptions.
12.04.040 Permit – Fees.
12.04.050 Permit – Application – Issuance.
12.04.060 Insurance requirements.
12.04.070 Construction standards.
12.04.080 Use of public parking area.
12.04.090 Pavement restoration guidelines.
12.04.100 Permit – Conditions.
12.04.110 Violation – Penalty.
The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:
A. CITY ENGINEER. The city engineer of the city of Pinole, or his or her authorized representative.
B. EMERGENCY STREET CUT. Any street cut by a utility to repair a facility within the right-of-way to remediate an immediate hazard or danger to life, health or property, as determined at the sole discretion of the city engineer.
C. ENCROACHMENT or ENCROACH. Any tower, pole, pole line, pipe, pipeline, driveway, private road, fence, sign, billboard, stand or building, or any structure or object of any kind or character not particularly mentioned herein, which is placed in, under or over any portion of the public right-of-way or natural water course, temporarily or permanently.
D. EXCAVATION. Any operation in which earth, rock, asphalt, concrete, or other material in the ground is moved, removed, or otherwise displaced by means of tools, equipment, or explosives in any of the following ways: grading, sawcutting, trenching, digging, ditching, drilling, auguring, tunneling, scraping, boring, cable or pipe plowing and driving or any other way.
E. PERMITTEE. Any person, firm, corporation, public agency, or utility which proposes to do work or encroach upon a right-of-way or water course and has been issued a permit for such encroachment by the city engineer.
F. PUBLIC AGENCY. Any city, county, state, or other public entity.
G. RIGHT-OF-WAY. Land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the city of the general public for street, highway, alley, pedestrian walkway, storm drainage or other purposes.
H. UTILITY. Any entity constituting a public utility under state law or private entity regulated by the California Public Utilities Commission.
I. STREET or CITY STREET. Includes all or any part of the entire width of the right-of-way of a city street whether or not such entire area is actually used for street purposes. (Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 1, 1965).
A permit is required for all encroachments as defined in this chapter except work covered by exemptions.
A. Encroachment permits shall be issued by the city engineer upon such conditions the city engineer deems necessary to protect the public interest, safety and welfare. The city engineer may issue written permits as provided in this chapter authorizing the permittee to do any of the following acts:
1. Make an opening or excavation for any purpose in the city street;
2. Plant, remove, cut, cut down, injure or destroy any tree, shrub, plant or flower growing with any city street;
3. Repair or construct, or cause to be repaired or constructed, by private contract, any concrete sidewalk, concrete driveway, concrete curb and gutter, or to cut any curb for the purpose of constructing a driveway, or to begin the excavation for the purpose of constructing a sidewalk, driveway, or curb and gutter.
B. When sidewalks, driveways, curbs, and gutters, or a combination thereof, are repaired or constructed by a contractor at the same time and at the same location, a separate permit shall be required for each ownership.
C. Except as otherwise provided in Section 12.04.030, it is unlawful for any person to encroach or to make or to cause to be made any encroachment without first having obtained an encroachment permit from the city engineer.
D. No person shall make a right-of-way encroachment or cause any street cut to be made without having secured the proper permit two working days in advance of the date specified to begin work, except when an emergency street cut is necessary. All work shall be performed in strict compliance with the terms and conditions of the permit. The permittee shall notify the city at least two working days prior to start of work and at that time shall provide a project schedule. The permittee shall notify the police department if the work might impede the passage of emergency vehicles.
E. All obligations, responsibilities and other requirements of the permittee as described in this chapter shall be binding on the subsequent owners of the encroachment.
F. Any encroachment for which a permit is required and for which no permit has been issued pursuant to this chapter shall be deemed a public nuisance which may be abated by the city pursuant to this code.
(Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 2, 1965).
The provisions of this chapter shall not apply to:
A. Officers or employees of the city acting in the discharge of their official duties;
B. Any work being performed by any person pursuant to a contract with the city;
C. The making of an emergency street cut by a utility to repair a broken or defective pipe, facility or conduit lawfully on or under a public street, or excavating by a utility as may be necessary for the preservation of life and property when an urgent necessity therefor arises when the offices of the city are closed. Any utility making such street cut shall apply for an emergency encroachment permit on the next city business day. The issuance of such permit shall be at the sole discretion of the city engineer. If the emergency street cut is performed during business hours, the permittee shall attempt to reach the city engineer by telephone in advance of the work. All provisions of this chapter for the protection of the public and governing repairs to the public way apply to the same extent as where applications and permits are required. (Ord. 2022-03 § 2 (part), 2022).
A. An application for a permit required pursuant to this chapter must be made in writing on a form supplied by the city engineer.
B. The city engineer will only review and approve an application for an encroachment permit if the proposed work will not significantly damage the public right-of-way or create an unreasonable risk of harm to persons or property, or the approval of the application is in the public interest. No permit shall be valid unless signed by the city engineer or his or her designee.
C. Notwithstanding subsection B of this section, the city engineer may approve an encroachment permit application subject to conditions, including measures to protect the traveling public, if the city engineer determines that by doing so it would be in the public interest, no significant damage to the public right-of-way would be created, and no unreasonable risk of harm to persons or property would be created. Nothing in this subsection requires the city engineer to approve an application subject to conditions.
D. Notwithstanding the provisions of subsection B of this section, the city engineer will approve an encroachment permit application, subject to conditions, for any public agency or utility with lawful authority to occupy the public right-of-way and authorized by law to establish or maintain any works or facilities in, over, or under any public right-of-way. This subsection does not apply to any public agency or utility acting outside of its boundaries. Any encroachment permit issued to a public agency or public utility pursuant to this section is conditioned on a requirement that the permit must relocate its encroachment and its sole expense if future improvement of the public right-of-way necessitates such relocation.
E. Any permit issued pursuant to this chapter is subject to the following conditions:
1. That if the permit expires, is revoked by the city, or the public right-of-way is vacated or abandoned, the permittee will, immediately onto the satisfaction of the city engineer, restore the public right-of-way to the same or better condition than it was on the date that the permit was issued;
2. That the permittee indemnifies and holds harmless the city and any officer or employee from any liability or responsibility for any accident, loss or damage to persons or property, happening or occurring resulting from any placement, change or renewal of any encroachment and that all of the liabilities are assumed by the permittee;
3. That the permittee and any successors, at their own expense, remove or relocate any encroachment that interferes with the improvement, grading or realignment of the public right-of-way by the city or other city project.
F. 1. For any work performed within the public right-of-way, the applicant, his or her contractor, and/or the contractor's sub-contractor(s) shall possess valid contractor license(s) issued by the State of California. This ensures the quality and aesthetics of work performed. The following licenses are acceptable:
Right-of-Way Valid Contractors State License(s) |
Sanitary Sewer Laterals |
Class C-42 (Sanitation System) plus Cal OSHA T-1 Annual Trench/Excavation Permit |
Public Street Repair (right-of-way) |
Class A (General Engineering) |
Class C-12 (Earthwork and Paving) |
Class C-34 (Pipeline) |
Concrete Repair (e.g., sidewalk, curb, gutter, etc.) |
Class C-8 (Concrete) |
2. Contractors working within the public right-of-way shall also possess a valid city of Pinole business license at the time of application.
G. Permits will be valid for sixty calendar days from date of issuance unless specified otherwise in Encroachment Permit Special Conditions or extended in writing by the city engineer. Encroachment permits issued in conjunction with a building permit are bound by the expiration date of the building permit, unless otherwise stated in the Encroachment Permit Special Conditions.
H. Permits are non-exclusive. If a conflict with an existing facility or improvement is discovered during the course of work, the permittee must arrange with the owner of the facility or improvement for any necessary removal or relocation of the facility or improvement. Any and all associated cost for the removal or a relocation will be the responsibility of the permittee. The improvements installed by permittee will be subject to and subordinate to the city's use of the property.
I. Permits issued under this chapter are non-transferable and revocable by the city without cause. Non-compliance with this chapter, general and special conditions of the permit are all grounds for revocation.
J. Permittee shall, whenever required, secure the written authorization for any work that must be approved by the California Public Utilities Commission (PUC), CAL-OSHA, Caltrans, or any other regional/state agencies as required by law. Failure to comply with the law, as noted above, will invalidate the city's encroachment permit. A copy of such permit shall be attached to the encroachment permit. Permittee shall be liable and shall indemnify the city of Pinole for any and all violations, consequences, mitigations, fees, and penalties that these agencies may impose that are caused directly or indirectly by the proposed work.
K. The issuance of a permit does not constitute a lease, deed, or grant of easement, or a fee interest by the city. (Ord. 2022-03 § 2 (part), 2022).
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