[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:
(1) 
Merchandise stands.
(2) 
News stands.
(3) 
Below or above grade rooms and walkways.
(4) 
Loading docks.
(5) 
Entry stairs or ramps.
(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.
(9) 
Fences.
(10) 
Canopy or awning.
(11) 
Antennas, antenna poles, and associated equipment and structures.
(12) 
Solid waste containers.
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.
(2) 
Loading docks.
(3) 
Footings.
(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.