[Ord. 2002-400 § 1;
prior code § 35-51]
Any use of a street, alley, sidewalk or other public place for
any purpose other than travel shall be prima facie a nuisance and
is forbidden unless such use has been authorized by City permit or
otherwise sanctioned by ordinance or law.
[Ord. 2018-327; Ord. 2002-400 § 2]
A.
ENCROACHMENT – Means an object or part of a structure or building
secured to, affixed to or extending over, upon or under the surface
of public property. An encroachment's invasion of public property
is generally permanent in nature, but not necessarily because it is
easily movable. "Encroachment" does not include utility structures,
newspaper stands, U.S. Postal Service mail boxes that are not monuments
and streetscape furniture.
B.
OBSTRUCTION – Means an object located upon or above the surface
of public property and not secured thereto. An obstruction's invasion
of public property is generally stationary and temporary in nature.
[Prior code § 35-53]
In all cases, any person claiming to be acting under permit
or ordinance shall plead and provide such permit or ordinance as justification
and defense.
[Prior code § 35-54]
Except as provided in Sections 12.36.050 and 12.36.060, and except as expressly permitted by the terms of subsections (a), (b), (c), (f), (g), (h) and (j) of section 4802 of the building code of the City and except as expressly permitted by chapter 57 of the building code, no person shall erect, construct or maintain any building or structure or any part of or appurtenance to any building or structure in, on, over or under any street, lane, alley, public ground or land of the City or of its board of park commissioners or of any other administrative body of the City, nor shall any person in any manner encroach upon, appropriate or (otherwise than in the discharge of an appropriate public function or as a member of the general public and in a manner consistent with the appropriate general public use) make any use of any such street, lane, alley, public ground or land.
[Prior code § 35-55]
The exercise of a duly authorized franchise right or right or
privilege expressly granted by statute or some specifically applicable
ordinance of the City, shall not be construed to be prohibited by
this chapter.
[Ord. 2018-327; Prior code
§ 35-56]
A.
Encroachments granted by City Council.
1.
A license shall be obtained from the City Council for an encroachment otherwise prohibited by Section 12.36.040 of the Davenport Municipal Code. Excluded from the license requirement include but are not limited to marquees, canopies, signs, fire escapes, etc., which are not affixed to or rest on the surface of the public ground and do not prohibit or restrict pedestrian access. Also excluded from the license requirement is decorative furniture accessory to and adjacent to a business which rests on the surface of the public ground but does not prohibit or restrict pedestrian access, such as sandwich board signs, a table and chair(s) and flower pots, etc.). Encroachments not requiring a license are subject to the permit requirement and conditions articulated in subsections B and C in this section.
2.
The petitioner shall submit an application to the City along
with a $150 application fee. The application shall provide the name
and contact information of the petitioner, a conceptual drawing detailing,
at a minimum, dimensions, type and placement of materials and a statement
of purpose for and use of the encroachment.
3.
The application shall be subject to review by any City department
for concerns arising from its respective missions. After the initial
staff review, the application shall be reviewed by the design review
board to determine if the mass, shape, materials, architectural details,
and other design elements are compatible with the building and surrounding
environs. If the encroachment is attached to a structure under the
jurisdiction of the historic preservation commission, the historic
preservation commission will perform its design review in lieu of
the design review board. The design review board or historic preservation
commission shall forward its recommendation to the City Council, which
shall make the final determination of the encroachment.
4.
Licenses granted by City Council shall be renewed on an annual
basis beginning on the first day of January and terminating on the
last day of December. Once approved as prescribed herein, annual license
amounts are hereby established as follows:
a.
$250 if the area is less than 250 square feet.
b.
$350 if the area is at least 250 square feet but less than 500
square feet.
c.
$450 if the area is 500 square feet or more; and
d.
For a new license, the annual license amount shall be prorated
quarterly for the quarter in which the license is granted by the City
Council.
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In no event shall the above fees be construed as giving the
licensee an interest in the public property.
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5.
If an encroachment license is granted, the licensee and the
City Attorney shall execute a written license memorializing the same
incorporating the terms of this ordinance and any other terms the
City Attorney deems reasonable and prudent.
B.
Encroachments granted by public works director, or his or her designee.
1.
A permit shall be obtained from the public works director, or
his or her designee, for an encroachment not subject to an encroachment
license from City Council. This permit may be issued in conjunction
with a building permit.
2.
The petitioner shall submit an application to the City along
with a $50 application fee. The application shall provide the name
and contact information of the petitioner, a conceptual drawing detailing,
at a minimum, dimensions, type and placement of materials and a statement
of purpose for and use of the encroachment. Although a permit is required,
no fee is required for decorative furniture accessory to and adjacent
to a business which rests on the surface of the public ground but
does not prohibit or restrict pedestrian access, such as a table and
chair(s) and flower pots, etc.).
3.
The application shall be subject to review by any City department
for concerns arising from its respective missions. If the encroachment
is under the jurisdiction of the design review board, the design review
board shall determine if the mass, shape, materials, architectural
details, and other design elements are compatible with the building
and surrounding environs. If the encroachment is attached to a structure
under the jurisdiction of the historic preservation commission, the
historic preservation commission will perform its design review in
lieu of the design review board. The design review board or historic
preservation commission shall forward its recommendation to the public
work director, or his or her designee, which shall make the final
determination of the encroachment. If the encroachment is not attached
to a structure under the jurisdiction of the design review board or
historic preservation commission, the public works director, or his
or her designee, shall determine if the mass, shape, materials, architectural
details, and other design elements are compatible with the building
and surrounding environment.
C.
Applicable to Encroachments Licenses and Permits.
1.
If community public works director, or his or her designee,
determines a hardship variance is necessary to encroach into a required
setback, the petitioner must apply to the zoning board of adjustment
for any necessary variance first. If a final determination granting
any necessary variance is obtained, the petitioner may then apply
for the encroachment license or permit.
2.
If an encroachment license or permit is granted, the licensee
has the obligation and duty to defend and hold harmless the City of
Davenport from any claim arising out of or related to its encroachment
into and occupation of the public ground; and further, releases the
City, its officers, employees, and agents from any damage that may
arise from municipal operations. The licensee must obtain and have
in place liability insurance of the type and amount specified by the
City risk division. The City shall be listed on the liability insurance
policy for purposes of receiving notice of its cancellation or expiration
not less than 30 days prior to the effective date of the cancellation
or expiration.
3.
If an encroachment license or permit is granted, the licensee
assumes all risks arising from the occupation of the encroachment
on the public ground. The City of Davenport may subsequently revoke
the encroachment license or permit. The licensee or permittee bears
all costs associated with the construction or installation of the
encroachment, and any demolition, removal, or restoration associated
with the encroachment upon termination of the license or at such times
as the City Council or public works director, or his or her designee,
deems it necessary for City purposes. Licensee or permittee is responsible
for all ongoing costs associated with the maintenance or operation
of its encroaching object or improvement. In being granted the license
or permit, the licensee or permittee acknowledges the City of Davenport
may in its sole discretion demolish, in part or in its entirety, any
object or improvement within the area of encroachment without any
liability or cost whatsoever to the City, and licensee or permittee
authorizes the same. Any demolition costs shall be assessed to the
property owner.
4.
All buildings, structures, parts and appurtenances thereof which,
as of the effective date this ordinance, are so located that it is
patent from mere observation that they are maintained in, on, over,
or under some street, lane, or alley in violation of this ordinance
or the agreement shall be subject to immediate removal.
5.
No encroachment licenses or permit shall be granted in respect
of any public ground or land, the management or control of which by
statute or ordinance is placed in another body of the City until any
applicable process of that body is completed as well.
6.
No encroachment license or permit shall be granted in any case
in which the proposed licensed or permitted use substantially interferes
with any existing public use in the City Council's discretion, and
any such license or permit previously issued shall be revoked. Any
encroachment license or permit shall be revocable at the pleasure
of the City Council, with or without notice, in its sole discretion.
[Prior code § 35-57]
This chapter shall be construed to impose requirements with
respect to the use of space under sidewalks, the use of space in alleys
under ground and openings in sidewalks for cellar doors, coal and
ash holes and like purposes in addition to the provisions of subsections
(d), (e) and (i) of section 4802 of the building code of the City.
[Ord. 2002-400 § 3;
prior code § 35-58]
The frames of cellar doors and cellarways built under Sections 12.36.040 through 12.36.070, inclusive, shall not be built above the level of the sidewalk, and said cellarways shall be kept by the owner or occupant, or both, securely covered with a door or doors which shall remain closed at all times except when actually used to put goods or merchandise into the cellar or basement. And all openings in the sidewalk for lighting or ventilating cellars or basements shall be placed on a level with the sidewalk and securely made.
[12-4-2019 by Ord. No. 2019-530; Ord. 2002-400 § 4; prior code § 35-59]
A.
No person shall place any obstruction in or above any street, alley,
or other public property without first obtaining a permit from the
Engineering Division of Public Works ("engineering") pursuant to this
section and Chapter 12.40 of the Davenport Municipal Code.
B.
Application for a permit shall be filed with engineering along with
a nonrefundable application review fee of $10 and proof of liability
insurance in the amount of at least $100,000 per incident. Failure
to pay the $10 review fee or provide proof of insurance will result
in automatic rejection of the application.
C.
Engineering shall review the application and approve it, if acceptable.
In reviewing the application, engineering shall consider the need
to use this location, the adequacy of the unobstructed space, the
applicant's prior compliance with these regulations, and the standards
and specifications of the Iowa Manual on Uniform Traffic Control Devices.
D.
The permittee shall defend and hold harmless the City against any
loss, cost, or damage resulting from or related to permittee's occupation
of the right-of-way.
E.
The duration of the permit shall be 30 days. A one-time extension
for an equal period of time may be granted by engineering if the extension
is necessitated by events outside the control of permittee.
F.
The judgment of engineering in the granting or extending of a permit
is final. Additionally, the decision of engineering to revoke a permit
for failure to comply with this section shall be final.
G.
A violation of this section is punishable as follows:
2.
Type II violations. First offense: $100; second: $150; third
and subsequent: $200. The City may seek other administrative, legal,
or equitable relief in addition to or in lieu of the fine. Each day
a violation exists may be charged as a separate offense.
a.
Expired permit (for first seven days after expiration date only:
subsequently fined as "no permit").
[Ord. 2015-117 § 21;
Prior code § 35-60]
A.
Before any permit shall be given, the applicant shall have on file
with the City Clerk, a fidelity bond approved by the engineering division
in full force and in such sum as shall be fixed by the public works
department conditioned upon holding the City harmless from any claim
for damages or the costs incident thereto and also conditioned upon
holding the City harmless from all damages to paving, sidewalks or
other City property for the deposit of material or apparatus.
