A. Defined: An "encroachment" is the existence of a privately owned or maintained structure, item of personal property, or excavation in, on, or across city owned property, or over city owned property. The term encroachment includes, but is not limited to, items such as a fence, garage, roof overhang, ditch, culvert, or pipeline in, on, across or over city owned property. A driveway or point of access and any associated culverts onto a city owned street shall not be considered an encroachment for purposes of this section.
B. Permit Required: It shall be unlawful for an individual or entity to create or maintain an encroachment in, on, across or over city owned property unless a permit authorizing such encroachment has been issued by the city.
C. Obstruction Of Public Rights Of Way:
1. Except as otherwise provided by city code and regulation, no person shall erect, place or leave any private sign, eaves, marquee or similar other structure, fixture or device, or cause or allow the same to remain or encroach upon any public right of way.
2. Awnings, fascia, roofs and other structures that encroach into or over the public way or public property, or that could shed ice, snow or water onto the public way or onto public property, shall be subject to regulation by the city, in order to prevent property damage and injury to members of the public.
D. Exceptions: This section shall not be construed to prohibit the following in the WB-3 general business district:
1. Private advertising signs, eaves, marquees and similar devices overhanging the right of way provided:
a. The overhanging device received the required prior approval and authorization appropriate to the device from city architectural review, planning and zoning, including sign regulations, building standards, and fire and safety codes, and any city code or regulation in force or hereafter adopted or established.
b. The lowest part of any such device which extends over any public way shall be at least eight feet (8') above the level of the walk or public way over which it extends and the outside support for such devices, if any, shall be at least two feet (2') back from the curb or street line. Further, the overhanging device may not interfere with access from the street and parking areas.
c. Such device is maintained in compliance with city standards, codes and regulations, kept clean and in good repair, and subject to the control of and as authorized by the director of public works or designee.
2. Merchandise, provided:
a. Merchandise may be temporarily displayed on the sidewalk in front of that respective business. Merchandise can only be placed on sidewalks during business hours.
b. Sidewalk displays of merchandise must provide at least six feet (6') of unobstructed clearance, exclusive of any canopy support post, and must be maintained at all times. Further, sidewalk displays may not interfere with access from the street or parking areas.
3. Benches, planters, garbage cans, bike racks and other similar devices upon the right of way, provided:
a. Such similar devices may be temporarily displayed on the sidewalk in front of the respective business and must provide at least six feet (6') of unobstructed clearance and may not interfere with access from street or parking areas.
b. Benches, tables and chairs, planters, garbage cans, bike racks and other fixtures must receive prior written authorization from the director of public works or designee.
c. All such similar devices are maintained in compliance with city standards, codes and regulations, and subject to the control of and as authorized by the director of public works or designee.
E. Construction And Maintenance Work:
1. Except as otherwise provided by this code, all public rights of way, including streets, sidewalks, alleys and paths, and all public places of the city, shall at all times be kept free, clear, and clean of all obstructions, debris, encumbrances, and encroachments which hamper or interfere with the public's free and safe use.
2. No person shall impede, obstruct, or tear up any pavement, sidewalk, or crosswalk, or any part thereof, dig any hole, shaft, ditch, or drain, or dig or remove any sod, earth, stones, sand, or gravel from any street, avenue, alley, and public place without first having obtained a permit from the director of public works or designee. Nor shall any person hinder or obstruct the making or repairing of any public improvement or work ordered or done by, or under the authority of the city.
3. Permits for construction and maintenance work in right of way and public places of the city shall be subject to an application fee established by resolution, and any conditions of the permit.
F. Encroachment Permits:
1. Construction Encroachment Permit: An individual or entity may apply to the city for an encroachment permit by filling out and submitting an application to the director of public works or designee on forms furnished by the city, and by paying the appropriate fee, as set by resolution. Such fee shall be nonrefundable.
2. Structural Encroachment Permit: An individual or entity may apply to the city for a structural encroachment permit by filling out and submitting an application to the city manager on forms furnished by the city, and by paying the appropriate fee, as set by resolution. Such fee shall be nonrefundable.
3. Application: The application for a construction or structural encroachment permit must include a drawing of the location and dimensions of the right of way area proposed for the encroachment and the arrangement of objects, fixtures, or portions of structures expected to be located on the right of way.
4. Process: The city may act on the application, and may either grant, grant with conditions and limitations on the use of the right of way, or deny the application. The applicant shall be notified in writing of the city's determination, mailed to the applicant's address on the application.
5. Permit Revocable; Nontransferable: The permit is a revocable license, personal to the applicant, and may not be transferred.
G. Appeals: The determination of the city manager may be appealed to the city council by a letter or other written notice, signed by the applicant, indicating the applicant's desire to appeal, provided that the city receives such appeal within thirty (30) days of the date that the city manager's determination is mailed. If an unsuccessful applicant appeals a decision by the city, then a hearing shall be scheduled before the city council. After receiving input from the applicant and the public, the city council shall grant, grant with conditions, or deny the application. The decision of the city council shall be final.
H. Granting/Revoking Of Permit: The granting of an encroachment permit is a matter of grace, resting solely in the discretion of the city manager or designee, or when applicable, the city council, and a denial of an encroachment permit is not a denial of a right. Whether or not the permit so states, encroachment permits granted pursuant to this section shall be for such term as determined by the city. Permits shall not run with the land, but instead shall automatically terminate upon removal of the encroachment or upon transfer of all interest in the property benefited by the encroachment. Any encroachment permit granted shall be revocable by the city, whether or not the permit so states, after providing the applicant with thirty (30) days' prior written notice of the revocation mailed to the property at the address provided on the application. The property owner may appeal the revocation to the city council provided the city receives such written appeal within thirty (30) days of the date that the city's revocation notice is mailed. If timely appealed, the property owner's appeal will be heard at a council meeting. After receiving input from the property owner and the public, the city council shall grant, grant with conditions or deny the appeal. The decision of the city council shall be final. In the event of revocation of an encroachment permit, no compensation shall be due from the City to the applicant.
I. Unlawful Encroachments: Upon receiving a written complaint from any individual or entity with respect to an unlawful encroachment, the City Manager or designee shall provide written, mailed notice to the owner of the property benefited by such encroachment of the need to obtain an encroachment permit, or cease and desist from maintaining the encroachment. Such owner shall have fifteen (15) days after the mailing of such notice to eliminate the encroachment or apply for an encroachment permit. Any encroachment which remains in violation of this section may be abated by the City, as determined appropriate by the City Manager. The City Manager may cause to be issued a civil citation pursuant to the provisions of section 1-4-5 of this Code or, alternatively, may direct the City Attorney to issue a civil complaint and a summons or initiate a criminal prosecution. A violation of this section shall constitute a misdemeanor subject to the general penalty identified in section 1-4-1 of this Code. For each separate incident, the City shall elect to treat the violation as a misdemeanor, as a Municipal infraction, or as a matter to be enforced through a civil action. If a violation is repeated, the City may treat the repeat violation differently than it treated the initial violation, and may utilize a different remedy. Each day that a violation remains after notice to the owner as described above shall constitute a separate violation of this section.
J. Existing Encroachments: An encroachment existing as of the date of adoption of this section shall not be considered legal. Instead, any encroachment existing as of the date of the adoption of this section shall be considered in violation of this section until a permit authorizing such encroachment is granted. (Ord. 11-18, 12-5-2011)