[HISTORY: Adopted by the City Council of
the City of Papillion as Ch. 8, Art. I, of the 1990 Code; amended
in its entirety 7-5-2022 by Ord.
No. 1969. Subsequent amendments noted where applicable.]
NEBRASKA STATUTE REFERENCES
Sections
150-1 and 150-3 — Neb. R.R.S. §§ 16-207, 16-210, 16-609 and 16-610.
The Council shall have the care, supervision and control of
all public highways, bridges, streets, alleys, public squares and
commons within the municipality and shall cause the same to be kept
open and in repair and free from nuisances.
Vegetation growing upon or near the lot line or upon public
ground and interfering with the use or construction of any public
improvements shall be deemed an obstruction under this chapter. Said
vegetation may be removed by the Director of Public Works at the expense
of the owner of the property upon which the vegetation is located
should the owner fail or neglect, after notice, to do so. It shall
be unlawful for any person, persons, firm or corporation to obstruct
or encumber, by fences, gates, buildings, structures or otherwise,
any of the streets, alleys or sidewalks.
[Amended 10-3-2023 by Ord. No. 2008]
Persons engaged in building, excavation, wire or utility installation,
or other similar activities within or along the public right-of-way
may occupy the public right-of-way space with such building material
and equipment as long as is necessary only if such persons shall make
application to and receive a written permit from the Director of Public
Works to do so, after paying the fee provided by the Master Fee Schedule
and subject to any conditions stated in the permit; provided that
a suitable passageway for pedestrians shall be maintained within the
public space included in the permit, which shall be protected and
lighted in the manner required by the Director of Public Works. The
Director of Public Works may require the applicant to post a bond
in such amount as he or she deems necessary to hold the municipality
harmless under the permit. The permittee shall provide to the City
proof of insurance as stated in the Master Fee Schedule. The permittee
shall be responsible for installing and maintaining all temporary
traffic control and safety devices required by law or by the Director
of Public Works during the occupation of public property. The permittee
shall be responsible for the cost of restoring the right-of-way to
the condition it was in prior to the permit.
A. It shall be unlawful for any person or entity other than the City
to exclusively use City-owned property or rights-of-way without first
entering into a lease agreement with the City as provided in this
article.
B. Such a lease shall be required for all such uses of City-owned property
or rights-of-way, including, but not limited to, the following examples:
(3) Below or above grade rooms and walkways.
(6) Eating or drinking areas.
(7) Erection of signage on or above.
(8) Exclusive private use for the parking of a motor vehicle on a right-of-way
for a period longer than otherwise allowed by this Code, or on City
property other than a right-of-way.
(11)
Antennas, antenna poles, and associated equipment and structures.
C. This article and the lease requirements of this article shall not
apply to the following uses:
(1) Common vehicular, pedestrian, or other transportation uses of rights-of-way
by the general public.
(2) Any gas, steam, condensate or chilled water line, energy distribution
line or utility line, where the same is installed or operated by the
holder of any franchise, easement, contract or legislative rights
authorizing such use.
(3) Any telecommunications lines, wires, cables or related wire facilities
in the City right-of-way, if authorized by any franchise, easement,
agreement or legislation.
(4) Small-cell antennas and related facilities governed by Chapter
207 of this Code.
(5) Right-of-way encroachments authorized by license granted under this
article.
(6) Space or structure used exclusively to provide a required fire escape
or fire protection.
(7) Flagpoles and related footings constructed in the manner permitted
by the Building Code.
(8) The maintaining of a lawn or landscaping behind the curb of a street,
unless ordered removed by the Public Works Director.
(9) A vacant area owned by the City, if there is an agreement with a
person or organization to maintain such lot for the purpose of gardening
activities. Such gardening agreement shall be for one growing season
at a time, and shall be on such terms as stated on a gardening agreement
form provided by the Planning Director.
(10)
Temporarily permitted uses of rights-of-way that are approved
by a permit issued by the Public Works Director pursuant to this Code.
(11)
Legal, nonexclusive and transitory parking of a motor vehicle
in the right-of-way.
(12)
An event authorized by a permit issued by the City.
(13)
Use of City property that was legally authorized immediately
prior to the effective date of this section, by contract, legal nonconforming
use or otherwise.
(14)
Ordinary and nonexclusive use of City parks or structures open
to the public for such use.
For the purposes of this article, the following words and phrases
shall have the meanings respectively ascribed to them:
ANTENNA
Any device which, by use of any means, is designed to transmit
or receive through the air any electromagnetic, microwave, radio,
television or other frequency energy waves, of any type of purpose.
ANTENNA POLE
A new pole or other structure that is to be used for supporting
one or more antennas.
RIGHT-OF-WAY
Land, property, or interest therein, usually in a strip,
owned by the City and dedicated or set apart for public use as a road,
street, highway, sidewalk or trail, between approximately parallel
boundaries, including the improved and unimproved portions thereof.
SIDEWALK
That part of the street right-of-way between the curb and
adjacent property line, or, where no curb exists, that part of the
street right-of-way between the lateral line of the right-of-way improved
for vehicle use and the adjacent property line.
The applicant shall make application to lease City property
by filing an application with the Planning Department. The application
shall contain the following:
A. Street address of the adjacent property.
B. Name and mailing address of adjacent property owner.
C. Name and address of applicant, if different from the above.
D. Description of intended use.
E. Dimensioned drawing of the land to be used, including an elevation
drawing, showing the size and location of all existing and proposed
structures or improvements thereon.
F. The applicable application fee as provided by the City's Master Fee
Schedule.
G. If the lease would require the City to install a sign or perform
other make-ready work, the applicant shall pay an additional fee in
the amount of the City's actual cost incurred for such sign or make-ready
work.
A. A lease shall not be issued unless the application for it has been
reviewed and approved by the Planning Director, and, if applicable,
the director of such other department currently exercising primary
occupation or maintenance of the property at issue, or such directors'
designees.
B. In addition, a proposed lease for any of the following uses over,
under or on the right-of-way shall not be issued unless approved by
resolution of the City Council:
(1) Above or below grade rooms and walkways.
(4) Eating or drinking areas.
(5) Antennas, antenna poles and their associated structures. Review and approval of such proposed leases shall proceed in addition to the approval that may be required under Chapter
205 or other chapters of this Code.
(6) Parking in the right-of-way, for which a majority of property owners have objected under §
150-20.
C. The directors shall review applications to determine compliance with
applicable laws, including this article.
D. The applicant shall not commence use of the leased premises until
all other required permits, licenses or other applicable approvals
from the City or from other federal, state or local entities have
been obtained.
E. Review and action upon a proposed antenna using an existing structure
shall be completed within 90 days of application. Review and action
upon a proposed antenna pole or antenna using a new structure shall
be completed within 150 days of application. The time may be tolled
during a period in which the City is awaiting missing documents requested
from the applicant.
F. Upon any denial of a lease for an antenna or antenna pole, the City
shall within seven days provide to the applicant written reasons for
the denial.
G. Upon approval, the applicant shall sign a lease agreement on a form
approved by the Planning Director and City Attorney. The City may
require that a lessee comply with certain stated conditions as consideration
for the granting or renewal of a lease. Such conditions shall become
part of the lease so granted or renewed. In the case of a lease which
requires approval by the City Council, such conditions may be imposed
by the City Council. In the case of a lease that does not require
approval by the City Council, the Planning Director may impose such
conditions which serve or are consistent with the guidelines for approving
leases under this article.
H. Upon the Directors' denial of a lease application under Subsection
A above, the applicant may appeal such denial to the City Council by filing a written request with the City Clerk within 30 days of the denial.
All lease applications for City rights-of-way, except for antennas,
antenna poles and appurtenances, buried lines, cables and conduits,
must be made by the owner of the private property adjacent to the
proposed area to be leased. Notwithstanding this section, a lease
application for a neighborhood or business district identification
sign on a City right-of-way may be made by a neighborhood association
applicable to that location or by a business improvement district
for that location.
A. If a lease for parking in the right-of-way is approved, the lessee
must provide the following at lessee's expense:
(1) Proper display of a City-supplied and City-installed parking sign
which indicates that the space is leased private parking and the lease
number and expiration date is required. The lessee shall reimburse
the City for its costs related to the sign.
(2) The parking surface must be paved with concrete or an alternative
material with a thickness that meets standard specification requirements
for public improvements and is approved by the Public Works Director.
The existing curb shall not be removed unless a separate curb cut
permit is obtained by the lessee.
(3) Failure to maintain the sign or paving shall constitute a violation
of the lease and may be cause for its cancellation.
B. At least 14 calendar days prior to the approval of a lease for such
right-of-way parking, the applicant must post a notice at the proposed
site indicating that the application has been made to the City and
that there is an opportunity to object to the lease and where to make
the objections.
C. Objections to a proposed right-of-way parking lease must be made
in writing to the Planning Department prior to the scheduled approval
of the lease.
Every applicant for a lease where the use includes a structure over, under or on City property or the right-of-way shall file and maintain a bond with the City Clerk in the amount specified in the City's Master Fee Schedule. The surety of the required bond shall be a surety company licensed to do business in Nebraska. No bond shall be required for a lease for erecting and maintaining a neighborhood or business district identification sign, if applied for by a neighborhood association applicable to that location or by a duly created business improvement district board for that location. No bond shall be required if the lessee provides and maintains a bond for a wireless telecommunications facility at the leased location under Chapter
205 of this Code. The City may maintain an action against the lessee for damages that exceed the amount of the bond. The bond shall be conditioned:
A. That the lessee, and lessee's heirs, successors or assigns, shall
indemnify, defend, and hold harmless the City from any and all loss
or damages or claim for damages arising from or out of the use of
the space or structure therein mentioned;
B. For the maintenance of the leased premises;
C. For the full and complete protection of the City against any and
all litigation growing out of the approval of the lease or anything
done under such lease;
D. For the faithful performance and observance of the provisions of
this article and the lease;
E. For the prompt and full payment of any fees or other moneys which
may become due pursuant to the issuance of the lease; and
F. For the return of the City right-of-way or property to its condition
prior to the initiation of the lease.
Every applicant for a lease for commercial or industrial purposes
shall provide and maintain general public liability coverage in the
amount specified in the City's Master Fee Schedule. Such coverage
shall name the City as an additional insured. All such policies and
certificates of insurance shall be issued by companies authorized
to do business in the State of Nebraska, shall be filed with the City
Clerk prior to the commencement of such use, and shall provide that
the insurance cannot be canceled until 30 days' prior written notice
of such cancellation shall have been filed with the City Clerk. Any
termination or lapse of such insurance shall be grounds for termination
of the lease.
If a structure is to be built above any street, alley or other
public property in connection with a lease under this article, such
structure must be approved and a permit issued by the Building and
Inspections Department, as would be otherwise required for such structure
by this Code.
The City may refuse to grant a lease under the provisions of
this article if applicable laws would be violated, or on grounds including
but not limited to any of the following:
A. The lease will cause a vehicular traffic hazard;
B. The lease will cause a hazard to pedestrian traffic;
C. The lease will cause a public nuisance;
D. The lease will cause an access problem for fire equipment, rescue
squads or other public safety services;
E. The lease will cause a conflict with normal neighborhood traffic,
pedestrian movement or recreation habits;
F. The lease will adversely impact the maintenance, servicing or operation
of public infrastructure;
G. In the case of a lease for private parking, there appears to be sufficient
parking available;
H. In the case of a lease for parking in the right-of-way, a majority
of the property owners lying between the intersecting streets where
the lease is proposed object to the lease; or
I. In the case of a lease for an antenna pole on the right-of-way, the applicant fails to meet the requirements of Chapter
205 or any other applicable provisions of this Code.
The annual rental rate for any lease under this article shall
be as set forth in the City's Master Fee Schedule; provided that the
City Council may by resolution reduce or delete the rental for a nonprofit
organization using City property for purposes benefiting the community.
A lease shall be considered to have been assigned to and accepted
by any person or entity who is a successor in interest of the prior
lessee and who exercises any of the rights of the lessee under the
lease. The lease and this article shall be binding upon such successors
in interest.
The Mayor, or the Mayor's authorized representative, is hereby
authorized and empowered to execute all leases provided for herein
for which the fees and initial rentals have been paid and which have
been approved under this article.
All leases provided for in this article shall be for a period
of one year, and shall be automatically renewed for the same duration
upon the prepayment of all fees or rentals for the renewed duration
unless the lessee shall have been notified by the City in writing
at least 30 days prior to the expiration date of said lease that said
lease will not be renewed. Failure to pay the required fees or rentals
within 30 days of the renewal date shall authorize immediate termination
of the lease by the City.
A. Leases granted under the provisions of this article may be terminated upon 30 days' notice by either party, except as provided in Subsection
B of this section.
B. A lease shall be immediately terminable by the City if:
(1) The lessee fails to obtain or maintain any other required permits,
licenses or other applicable approvals from the City or from other
federal, state or local entities, relating to the lessee's use of
the leased premises; or
(2) The lessee's use of the area leased violates any provision of the
lease or any applicable law.
C. There shall be no compensation paid to either party by reason of
any lease termination, other than return of prorated prepaid rental
amounts, if the City terminates prior to expiration of the lease.
Upon termination, the lessee shall immediately return the leased area
to such condition that existed prior to the lease, and shall remove
all property belonging to the lessee.
A. This section shall create a process by which the City may permit
encroachments in the right-of-way for existing sprinkler systems,
neighborhood identification signs, landscaping, overhanging roofs,
retaining walls and other similar items adjacent to a street which
the City is constructing, widening, repairing and/or replacing. This
use of the right-of-way adjacent to such public streets, where such
right-of-way is not necessary for the improvements contemplated by
the project and, further, where such encroachment does not interfere
with the City's use of the property, may be permitted as long as the
encroaching property owner holds an encroachment license issued by
the City. The City may cancel any such encroachment license at any
time upon 10 days' advance notice to the affected property owner.
Upon cancellation of the license, the improvements must be removed
at the expense of the property owner.
B. This section grants the Public Works Director or his/her designee
authority to consider, grant or deny applications for licenses for
existing encroachments on the right-of-way, under the criteria of
this section and this Code. The permitted encroachments may be for
the use of the right-of-way for sprinkler systems, neighborhood identification
signs, landscaping, overhanging roofs, retaining walls and similar
items. An encroachment application shall be filed with the Public
Works Director or his/her authorized designee, who shall be responsible
for reviewing the application and granting or denying an encroachment
license in whatever form deemed appropriate. This section is not intended
to replace the lease procedure stated in this article, but rather
is intended to provide an additional mechanism to allow for limited
use of the right-of-way to provide some relief to a property owner
whose interests might be affected when the City moves forward with
constructing, widening, repairing or replacing a street or other similar
activity.