§ 93.55  PUBLIC RIGHTS-OF-WAY.
   (A)   Definitions.  For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      ENCROACHMENTS.  Shall include but are not limited to any structural or non structural object or material placed n the city rights-of-way such as rock, soil, plants, trees, yard ornaments, etc.
      PERSON.  Means individual, corporation, association, firm, partnership, joint stock company, and similar entities.
      PUBLIC RIGHTS-OF-WAY.  Include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trials, paths, public easements and all other public ways or area, including subsurface and air space over these areas.
      WITHIN THE CITY.  Means territory over which the city now has or acquires jurisdiction for the exercise of its power.
   (B)   Jurisdiction.  The city has jurisdiction and exercises regulatory control over all public rights-of-way within the city under the authority of the city charter and state law.
   (C)   Scope of regulatory control.  The city has jurisdiction and exercises regulatory control over each public right-of-way whether the city has a fee, easement, or other legal interest in the right-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosures or other means.
   (D)   City permission required.  No person may occupy or encroach on a public right-of-way withing the permission of the city. The city grants permission to use rights-of-way by franchises, licenses and permits.
   (E)   Obligation of the city.  The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way, and does not obligate the city to maintain or repair any part of the right-of-way.
   (F)   Purpose.
      (1)   The purpose of this division is to establish a procedure for addressing encroachments of private improvements in the rights-of-way.
      (2)   It is the policy of the city to immediately remove encroachments into the public rights-of-way if it is determined to be detrimental to public safety.
   (G)   Grant or denial of waiver.
      (1)   Following the hearing, the City Council shall approve the waiver, deny the waiver, or approve the waiver with conditions. The decision shall be in the form of a written order granting the waiver, denying the waiver or approving the waiver with conditions. The City Council may attach such conditions to granting the waiver as may be considered reasonable.  The order shall incorporate findings of fact and conclusions that include a statement of the compliance or noncompliance with the applicable criteria or standards and those facts support the decision.
      (2)   Notice of the decision shall be provided to all parties submitting testimony within 5 working days of the date o which the order was signed.  Notice of the decision shall include a brief description of the decision reached and a statement that the complete file, including the final order, is available for review at City Hall during regular working hours.
   (H)   Limitations on approval.  Approval of the waiver pursuant to this section shall be limited to the specific application which the limited the action. The granting of a waiver does not preclude the City Council from requiring removal of the encroachment at a later date, upon 60-days’ advance notice to the owner.
   (I)   Building permits. Notwithstanding the provisions of the city’s municipal code, the city shall not issue a building permit for a property with an encroachment in the public right-of-way without the building permit incorporating removal of the encroachment.
   (J)   Liability. The city shall not be held liable for any damages done to encroachments in the right-of-way during the city’s normal course of work. However, property owners may be held liable if the encroachment causes damage to occur to any person or vehicle.
   (K)   Penalty. Violation of any provision of this section is punishable by a fine not to exceed $500.
(Ord. 07-400, passed 5-23-2007)