The ordinance codified in this chapter may be cited as the "Right-of-Way
Permit Ordinance."
(Ord. NS-386 § 2, 1996)
For the purpose of this chapter, the following words, terms
and phrases shall have the following meanings as set out in this section:
means the City Engineer or designee, who is the Deputy City
Engineer, land development engineering.
means and includes any tower, pole, pole line, pipe, pipeline,
fence, billboard, stand or building, or any structure or object of
any kind or character not particularly mentioned in this definition,
which is placed in, under or over any portion of a public place.
means any street, highway, curb, gutter, fencing, pipe, pipeline,
tube, main, service, trap, vent, vault, manhole, meter, gauge, regulator,
valve, conduit, wire, tower, pole, pole line, anchor, cable, junction
box, transformer or any other material structure or object of any
kind or character, whether enumerated in this definition or not which
is constructed, left, placed or maintained in, upon, along, across,
under or over any public place.
means the construction plans, prepared by a civil engineer,
in accordance with city standards for the purpose of describing a
public improvement to be constructed, repaired, rehabilitated and/or
otherwise installed in a public place. The term may also be used to
mean the construction plans, prepared by a civil engineer, in accordance
with city standards for the purpose of describing a private improvement
to be constructed, repaired, rehabilitated and/or otherwise installed
on private property or in a public easement or right-of-way.
means the document developed and approved by the City Engineer
describing the nature and extent of works proposed to be constructed
or carried out on a public place.
means any public street, highway, way, place, alley, sidewalk,
easement, right-of-way, park, square, plaza or other similar public
property owned or controlled by the city and dedicated to public use.
means the Standard Specifications for Public Works Construction
(current edition including supplements) written and promulgated by
Southern California Chapter American Public Works Association and
Southern California District Associated General Contractors or California
Joint Cooperative Committee and published by Building News Incorporated,
or such other specifications noted on approved plans.
means the "standard drawings" of the City of Carlsbad, adopted
and revised by the City Engineer and the most recently adopted San
Diego Area Regional Standard Drawings.
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In addition to the above defined words, terms and phrases, the definition of words, terms and phrases, as described in Chapter 15.04, shall apply to this chapter.
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(Ord. NS-386 § 2, 1996; Ord. NS-878 § 1, 2008; Ord. CS-164 § 13, 2011; Ord. CS-389 § 8, 2021)
This chapter shall be administered by the City Engineer who
shall have the responsibility and authority to:
A.
Establish
the form and procedures for application for right-of-way permits required
pursuant to this chapter including the certification of completed
applications, the approval of plans, the establishment of files, collection
of fees and security deposits;
B.
Interpret
the provisions of this chapter and advise the public regarding requirements
for plans, specifications and special provisions for facilities or
encroachments subject to the provisions of this chapter;
C.
Establish
format and content of plans and standards governing work on facilities
or encroachments pursuant to the provisions of this chapter;
D.
Issue
right-of-way permits upon such conditions as determined are reasonable
and necessary to protect the public health, safety and welfare;
E.
Consider
and approve amendments, including extensions, of any right-of-way
permit issued when such amendment is necessary to provide for the
safe and efficient movement of traffic or to protect public places,
persons or property;
(Ord. NS-386 § 2, 1996; Ord. CS-389 § 8, 2021)
No person shall do any of the following acts without first obtaining
a valid right-of-way permit:
A.
Make
or cause to be made any excavation or opening, fill or obstruction
in, over, along, on, across or through any public place for any purpose
whatsoever;
B.
Construct
or repair or cause to be constructed or repaired any curb, sidewalk,
gutter, curb with integral gutter, drive approach, driveway, alley
approach, spandrel and cross gutter, wheelchair ramp, A.C. dike, or
any other work of any nature covered by the city standard drawings
or city policy within a public place; or place, change, renew an encroachment
in, over, along or across or through any street right-of-way or public
place excepting, however, for or in connection with the installation
of poles, guys and anchors constructed for use under franchise for
public utility purposes where such poles, guys and anchors do not
interfere with or lie within 10 feet of existing improvements;
C.
Place
any banner over, across, on, or along any public place;
D.
Plant,
remove, cut, cut down, injure or destroy any tree, plant, shrub, or
flower growing within any public place excepting necessary pruning
or trimming to protect persons or property;
E.
Construct
or modify or cause to be constructed or modified, any storm drain
or conveyor of drainage waters and appurtenant items within a public
place;
F.
Modify,
alter or deface any block wall on or adjacent to public places;
G.
Engage
in any traffic-control operations in such a fashion as to affect any
public place while constructing, demolishing or maintaining any facility;
H.
Enter
onto or exit from any public place at any location not approved and
constructed as a driveway;
I.
Install
marquees, awnings and building mounted signs which obtrude into a
public place.
(Ord. NS-386 § 2, 1996)
A.
Any person proposing to do any of the acts described in Section 11.16.050 of this chapter shall make an application for a right-of-way permit to the City Engineer.
C.
The
City Engineer may require the application to contain an encroachment
agreement if deemed necessary due to the size, duration, and/or nature
of the encroachment. The encroachment agreement shall require removal
of the encroachment by the permittee upon reasonable demand by the
City Engineer, adequate security for performance of such promise,
and be in a form acceptable to the City Attorney. It may be executed
on behalf of the city by the City Engineer.
D.
If
the work proposed to be done requires the making of plans or the setting
of stakes, or both, the City Engineer may require the application
to be accompanied by the necessary plans, which plans shall be prepared
by a competent engineer licensed by the State Department of Consumer
Affairs.
E.
Upon
right-of-way permit issuance the application shall become part of
the right-of-way permit.
(Ord. NS-386 § 2, 1996)
The City Engineer may require any person who, pursuant to a
duly issued right-of-way permit under this chapter, has performed
construction work or placed and maintained any encroachment, to move
the same at his or her own cost and expense to such different location
as is specified in a written demand of the City Engineer, whenever
such move is necessary to ensure the safety and convenience of the
public or facilitate construction within the right-of-way. The City
Engineer shall specify in the demand a reasonable time within which
the work of relocation must be commenced, and the permittee must commence
such relocation within the time specified in the demand and thereafter
diligently prosecute the same to completion. Any encroachment agreement
required by the City Engineer shall specify these requirements and
require adequate security to enforce these provisions if the permittee
fails to do so.
(Ord. NS-386 § 2, 1996)
Every permittee shall commence work as stipulated in the right-of-way
permit and diligently pursue the work to completion without interruption
within the time period required by the right-of-way permit. Right-of-way
permits issued under this chapter shall be valid for the period of
time specified in the right-of-way permits, unless the City Engineer
grants a time extension.
(Ord. NS-386 § 2, 1996)
A.
The
permittee shall perform the work in a timely manner, in accordance
with approved plans, specifications and city standards and, to the
satisfaction of the City Engineer.
B.
No
person shall cause any public improvement or appurtenant work to be
performed upon any public place within the city by any person other
than a licensed contractor or a public utility.
C.
Any works conducted requiring the temporary, partial or full closure of the traveled or pedestrian right-of-way shall not be commenced until the permittee has obtained a permit therefor pursuant to Title 8 or Title 10 of this code and has been issued a traffic-control permit stipulating the date, time and provisions under which closure may be carried out.
D.
As
the work progresses, all streets shall be thoroughly cleaned of all
rubbish, excess earth, rock and other debris resulting from such work.
All cleanup operations at the location of such work shall be accomplished
at the expense of the permittee. From time to time, as may be ordered
by the City Engineer, and in any event immediately after completion
of the work, the permittee shall, at its own expense, clean up and
remove all refuse and unused materials of any kind resulting from
the work. Upon failure to do so, within 24 hours after having been
notified, the work may be done by the city and the cost thereof charged
to the permittee. Whenever it may be necessary for the permittee to
excavate through any landscaped area, the area shall be reestablished
in a like manner after the excavation has been backfilled as required.
All construction and maintenance work shall be done in a manner designed
to leave the area clean of earth and debris and in a condition as
nearly as possible to that which existed before such work began. The
permittee shall not remove, even temporarily, any existing trees or
shrubs without first obtaining the consent of the City Engineer.
E.
All
work affecting public improvements or public safety shall be inspected
by the City Engineer as follows:
1.
No
person shall prevent or obstruct the City Engineer in making any inspection
authorized by this chapter or in taking any sample or in making any
test;
2.
Twenty-four-hour
notice to the City Engineer is required for all inspections;
3.
All
work not in conformance with approved plans and specifications is
subject to rejection by the City Engineer;
4.
Request
for final inspections shall be made in writing.
F.
Prior
to the issuance of a right-of-way permit for a project, the project
owner or authorized agent shall:
1.
Provide
the City Engineer with a completed stormwater requirements applicability
questionnaire in accordance with SUSMP requirements;
2.
If
the project is determined to be a priority development project, then
the project owner or authorized agent shall:
a.
Prepare and submit a stormwater management plan in conformance with
the requirements of city standards and Title 15 of this code;
b.
Enter into a permanent stormwater quality best management practices
maintenance agreement or provide an alternate maintenance mechanism
as approved by the City Engineer.
G.
A city-approved construction SWPPP is required to be submitted prior to right-of-way permit issuance in accordance with city standards and Section 15.16.085 of this code for any project which has the potential for adding pollutants to stormwater or non-stormwater runoff during construction activities, unless an exemption from such requirement is provided pursuant to Section 15.16.085 and the municipal permit.
(Ord. NS-386 § 2, 1996; Ord. NS-878 § 2, 2008)
The City Engineer, upon determination by survey or by inspection
or by both, that the work has been completed according to the requirements
of this chapter and the right-of-way permit, shall issue a certificate
of acceptance which shall contain a statement of the location, nature
and extent of the work performed under the right-of-way permit.
(Ord. NS-386 § 2, 1996)
A.
The
City Engineer may deny the issuance of a right-of-way permit to any
person who refuses or fails to comply with the provisions of this
chapter, who is indebted to the city for past permit violations or
who in the judgment of the City Engineer has repeatedly violated permit
procedures or failed to comply with conditions requiring protection
of the public health and safety.
B.
The City Engineer may deny the issuance of a right-of-way permit to any person who refuses to execute an encroachment agreement as required pursuant to Section 11.16.060.
C.
Any
permittee found in violation of the conditions of a right-of-way permit
or the provisions of this chapter shall be given a written notice
to comply stipulating the code violation. Upon receipt of a notice
to comply, the permittee shall take action to correct the condition
of violation within the period stipulated in the notice. If within
that period appropriate measures have not been implemented, the City
Engineer may revoke the right-of-way permit and take any measures
required to secure the work site or return the work site to its original
condition. The cost of such work may be collected from the permittee.
(Ord. NS-386 § 2, 1996; Ord. NS-878 § 3, 2008)
A.
An
individual may appeal the decision of the City Engineer made in regard
to administration of this chapter to the City Council within 10 calendar
days following the decision. Appeals shall be in writing, filed with
the City Clerk and shall state the basis for the appeal. Fees for
filing an appeal shall be in an amount as established by resolution
of the City Council. The decision of the City Council shall be final.
B.
The
City Clerk shall thereupon fix a time and place for hearing such appeal.
The City Clerk shall give notice to the appellant and applicant/permittee
of the time and place of hearing by serving the notice personally
or by depositing it in the United States Post Office in the city,
postage prepaid, addressed to such persons at their last known address.
(Ord. NS-386 § 2, 1996)
Right-of-way permit fees shall be charged by the city for the
processing of a right-of-way application and the issuance of a right-of-way
permit. The fee shall be established by resolution of the City Council
and is for the purpose of defraying the cost of processing an application,
issuing the requested right-of-way permit, inspection of works completed
under the right-of-way permit and other costs of administrating this
chapter.
(Ord. NS-386 § 2, 1996)
A.
As
a condition of issuance of a right-of-way permit, the City Engineer
may require posting of a cash deposit or an equivalent security in
a form acceptable to the City Attorney. The City Engineer may require
that up to 100% of any deposit be submitted in the form of a cash
deposit. The cash deposit may be used at the discretion of the City
Engineer to provide for traffic-control, restoration of public facilities
or removal from the right-of-way of work, materials or equipment when
permittee or the permittee's agent fails to act in a timely manner
to provide for the public health, safety or welfare. The deposit shall
otherwise be for the purpose of guaranteeing performance of work contemplated
under the permit including removal of encroachments, if required.
Each deposit shall be accompanied by a right-of-way cash security
agreement stipulating the uses and conditions under which the funds
may be expended.
B.
The
amount of the deposit shall be established by the City Engineer based
on the size, duration, and/or nature of the encroachment.
C.
Upon
completion and acceptance of work under permit, any funds unused shall
be refunded to the permittee and any other bonds or security instruments
shall be released.
D.
If
any deposit or security is not sufficient for the protection of the
public interest in the public places, the City Engineer may require
an additional deposit or an increase in the security in such amount
as the City Engineer determines necessary. The permittee shall, upon
demand, deposit the additional cash or security.
Upon failure or refusal to pay, the City Engineer may revoke
the permit and/or recover the deficiency by appropriate action in
any court of competent jurisdiction. Until such deficiency is paid
in full, no other permit shall be issued to such permittee.
E.
Where
work is to be done by persons or utilities operating under a franchise
issued by the city or regulated by the State Public Utilities Commission
or utilities operated by governmental agencies, a permit may be granted
without making a deposit. In such cases, the permittee shall be liable
for the actual cost of any work to be done by the city in restoring
the area covered by the permit to the satisfaction of the City Engineer.
(Ord. NS-386 § 2, 1996)
A.
Improvement
plans shall be prepared in accordance with city standards and this
chapter for all work involving the construction, repair and/or major
rehabilitation of public improvements within a public place. The City
Engineer may waive the requirement for preparation of improvement
plans if, in the opinion of the City Engineer, the improvements are
of a size or type that does not warrant the preparation of improvement
plans.
B.
A separate application for each set of improvement plans, if required, shall be made in advance of submittal for a right-of-way permit. Each application for improvement plan review shall include a completed application form, improvement plans, specifications, engineering calculations, a soils and/or geotechnical investigation, and other such calculations, documentation and information as may be necessary to demonstrate that the improvement work will be carried out in substantial compliance with all city codes, city standards and the requirements of the Landscape Manual. Each improvement plan review application shall be accompanied by a construction SWPPP prepared in accordance with the requirements of this chapter, Title 15 and city standards.
C.
An
improvement plan review fee and inspection fee shall be charged by
the city for the processing of the improvement plan review and inspecting
the improvements during construction. The fees shall be established
by resolution of the City Council and are for the purpose of defraying
the cost of processing the improvement plan review and inspecting
the improvements during construction. The improvement plan review
fee and inspection fee are in addition to any other plan review, inspection
and permit issuance fees charged for the issuance of a right-of-way
permit or processing grading plans and building plans or, the issuance
of permits thereto. An additional improvement plan review fee of 15%
of the current plan review fee may be charged for improvement plan
applications for which the city approval is not granted within 24
months following the original date of application.
D.
Improvement
plan applications for which city approval is not granted within three
years following the date of application shall be deemed withdrawn,
provided the improvement plans are not associated with a tentative
map, tentative parcel map, vesting tentative map, or vesting tentative
parcel map, in which case the improvement plan application shall be
deemed withdrawn on the date of the expiration of the associated tentative
map. The improvement plans and other documents submitted for review
may thereafter be returned to the applicant or destroyed by the City
Engineer. In order to renew action on an application after withdrawal,
the applicant shall resubmit a new application and pay new improvement
plan review and inspection fees.
E.
The
City Engineer may authorize refunding of the entire improvement plan
inspection fee and refunding the unused amount not exceeding 80% of
the improvement plan review fee paid when an application for an improvement
plan is withdrawn (1) in accordance with this section; or (2) upon
written application filed by the original applicant not later than
60 days after withdrawal of the improvement plan application by the
applicant, when withdrawn prior to completion of the improvement plan
review.
F.
Any
application in process on the effective date of this code amendment
shall be subject to the provisions of this section. The filing date
for such application shall be considered to be the effective date
of the code amendment.
(Ord. NS-878 § 4, 2008; Ord. CS-135 § 1, 2011)
A.
The owner, developer or subdivider shall enter into a secured agreement with the city guaranteeing the construction of the public improvements in accordance with this chapter and the improvement security requirements of Sections 20.16.070 and 20.16.080 of this code, prior to issuance of a right-of-way permit or at such other time as required per the conditions of approval for projects approved pursuant to Titles 20 and 21 of this code.
(Ord. NS-878 § 4, 2008)
A.
No
person shall place or maintain any material or any obstruction or
impediment to travel in or upon any public place without a permit
to do so.
B.
Persons
violating provisions of this section shall be issued a notice of removal
and given a specified time to remove such material, obstruction or
impediment. Any failure to comply with the notice is unlawful and
a public nuisance endangering the health, safety and general welfare
of the public. In addition to any other remedy provided by law for
the abatement of such public nuisance, the City Engineer may, after
giving notice, cause the work necessary to accomplish the removal.
The costs thereof may be assessed against the owner or owners of the
project creating the obstruction.
C.
Notice
of removal shall be in writing and mailed to all persons whose names
appear on the last equalized assessment roll as owners of real property
creating the obstruction at the address shown on the assessment roll.
Notice shall also be sent to any person known to the City Engineer
to be responsible for the nuisance. The City Engineer shall also cause
at least one copy of such notice to be posted in a conspicuous place
on the premises. No assessment shall be held invalid for failure to
post or mail or correctly address any notice. The notice shall particularly
specify the work required to be done and shall state that if the work
is not commenced within 24 hours after receipt of such notice and
diligently prosecuted (without interruption) to completion, the city
shall cause such work to be done, in which case the cost and expense
of such work, including incidental expenses incurred by the city,
will be assessed against the property or against each separate lot
and become a lien upon such property.
D.
If upon the expiration of the 24-hour period provided for in subsection C of this section, the work has not been done, or having commenced, is not being performed with diligence, the City Engineer shall proceed to do such work or cause such work to be done. Upon completion of such work, the City Engineer shall file written report with the City Council setting forth the fact that the work has been completed and the cost thereof, together with a legal description of the property against which cost is to be assessed. The City Council shall thereupon fix a time and place for hearing protest against the assessment of the cost of such work. The City Engineer or the City Clerk, if so directed by the council, shall thereafter give notice in writing to the owners of the project in the manner provided in subsection C of the hour and place that the City Council will pass upon the City Engineer's report and will hear protests against the assessments. Such notice shall also set forth the amount of the proposed assessment.
E.
Upon
the date and hour set for the hearing of protests, the City Council
shall hear and consider the City Engineer's report and all protests,
if there are any, and then proceed to confirm, modify or reject the
assessments.
F.
A list
of assessments as finally confirmed by the City Council shall be sent
to the City Treasurer for collection. If any assessment is not paid
within 10 days after its confirmation by the City Council, the City
Clerk shall cause to be filed in the office of the County Recorder
a notice of lien, substantially in the following form:
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NOTICE OF LIEN
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Pursuant to Chapter 11.16, Title 11, of the Carlsbad Municipal Code (Ordinance No. _______), the City of Carlsbad did on the _______ day of _______, 20____, cause maintenance and report work to be done in the public right-of-way for the purpose of abating a public nuisance caused by activities related to construction at the property described below. The Council of the City of Carlsbad did on the _____ day of _______, 20____, by its Resolution No. _________ assess the cost or portion of the cost thereof upon the real property hereinafter described, and the same has not been paid nor any part thereof, and the City of Carlsbad does hereby claim a lien upon said real properly until the same sum with interest thereon at the maximum rate allowed by law from the date of the recordation of this instrument has been paid in full and discharged of record. The real property hereinbefore mentioned and upon which a lien is hereby claimed is that certain parcel of land in the City of Carlsbad, County of San Diego, State of California, particularly described as follows:
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(Description of property)
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Dated this _______ day of _______, 20______.
City Clerk, City of Carlsbad.
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G.
From
and after the date of recordation of such notice of lien, the amount
of the unpaid assessment shall be a lien on the property against which
the assessment is made, and such assessment shall bear interest at
the maximum rate allowed by law until paid in full. The lien shall
continue until the amount of the assessment and all interest thereon
has been paid. The lien shall be subordinate to tax liens and all
fixed special assessment items previously imposed upon the same property,
but shall have priority over all contractual liens and all fixed special
assessment liens which may thereafter be created against the property.
From and after the date of recordation of such notice of lien, all
persons shall be deemed to have notice of the contents thereof.
(Ord. NS-386 § 2, 1996)
The applicant for a right-of-way permit, as a condition to receiving
a right-of-way permit, shall sign a statement that he or she agrees
to indemnify and hold harmless the city, and each officer and employee
thereof, from any liability or responsibility for death or injury
to persons and loss or damage to property happening or occurring as
a result of the design or performance of any work undertaken under
any right-of-way permit granted pursuant to the application. The applicant
shall be required to provide proof of liability insurance in the amount
of at least one million dollars and shall name the city as an additional
insured under the insurance policy. The insurance shall be provided
by a company satisfactory to the city. Any deductible or self-insured
retention under the insurance policy shall be in an amount acceptable
to the city.
(Ord. NS-386 § 2, 1996)
The city and its employees, acting in their official capacity,
are exempt from the requirements set forth in this chapter.
(Ord. NS-386 § 2, 1996)
