Ordinance No. 18-19 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 18- /
AN ORDINANCE AMENDING TIGARD MUNICIPAL CODE CHAPTER 15.16 REGARDING
ENCROACHMENTS INTO RIGHTS-OF-WAY AND PUBLIC PROPERTY
WHEREAS, Chapter 15.16 of the Tigard Municipal Code (TMC) currently regulates encroachments into
unimproved rights-of-way, easements, and public property,leaving a significant void in the City's regulation of
encroachments into improved areas;and
WHEREAS,this ordinance eliminates the distinction between improved and unimproved areas and applies to all
rights-of-way and public property; establishes procedures, standards, and conditions for issuing encroachment
permits;and identifies exempt encroachments not requiring a permit;and
WHEREAS,the ability of the City to control encroachments into rights-of-way and public property is necessary
for the protection of the City's transportation facilities, the provision of utility services, and the preservation of
public properties.
NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: Tigard City Council amends Chapter 15.16 of the Tigard Municipal Code as shown on the
attached Exhibit A (additional language is underlined and deleted text is shown in
strikcthrough).
SECTION 2: This ordinance shall be effective 30 days after its passage by the council, signature by the
mayor,and posting by the city recorder.
PASSED: By 101.4/711,4614"/ vote of all council members present after being read by number and
title only,this 2-''day of)eivetwv6e4. ,2018.
Carol A. Krager,City Recorder
APPROVED: By Tigard City Council this D.54 day of 'fl1 k L x2018.
Approved as to form: John L. took,Mayor
City Attorney
Date
ORDINANCE No. 18- / /
Page 1
Exhibit A
TIGARD MUNICIPAL CODE
Chapter 15.16 ENCROACHMENT PERMITS landscaping materials in, over or upon any
Sections: asemcnt, or public property existing on
December 7, 1999,shall apply for an encroachment
15.16.010 Encroachments Within permit pursuant to this chapter no later than March
UnimpFoved Public Rights-of- 6, 2000. No action charging a violation of
Ways and Public subsection A.1 of this section may be initiated for
Property an encroachment existing on December 7, 1999,
15.16.015 Definitions before March 6, 2000, or while a timely filed
15.16.020 Exemptions application for an encroachment permit is under
15.16.030 Permit Issuance consideration by the city.
15.16.040 Appeals
15.16.050 Standards and Conditions B. Application and Fee Required.
15.16.060 Recording of Permits
15.16.070 Revocation of Permits 1. Any person desiring proposing to
15.16.080 Removal of Encroachment locate or maintain an encroachment within any
15.16.090 Liability unimproved publie right-of-way, easement, or
15.16.100 Enforcement public property shall must submit an application to
the city manager engineer or designee. The
15.16.010 Encroachments Within application shall will include a description of the
Uneved Public Rights-of- proposed encroachment,; a scale drawing
Waysem•ents and Public illustrating the nature and extent of the proposed
Property encroachment, and its relationship to adjoining
properties. If the applicant is not the owner of the
A. Encroachment Permits Required, for property that will be benefitted by the
Encroachment in Unimproved Public Rights of encroachment, the owner of that property shall
. , -. •- .•: .: ' :: - .; . •. . must also sign the application as a co-applicant.
1- Except as provided in subsection A.2 of this The city engineer er-designee may require
section it-shall-be It is unlawful for any person to an actual survey to determine the exact location of
erect, or cause to be erected, any structure_or to the proposed encroachment any public or private
place or maintain any vegetation and/or _
landscaping materials encroachment in, over,. or
upon any public right-of- 2. The application shall be
way, easement, or public property without having
first obtained an encroachment revocable permit support for the proposed encroachment by
from the city engineer manager or designee owners/occupants of property within 200 lin ar
authorizing such action. Encroachment into feet in each direction from the boundary of the
improved public right of way is only allowed if proposed encroachment, and the names and
. ' .. mailing addresses of all property owners within
Chapter 15.01. that 200 foot area.
2. The person in control of any 2.3, The applicant must pay a A fee in
• .. -• _ . ':•, the amount established by resolution of the city
15-16-1
Exhibit A
TIGARD MUNICIPAL CODE
council shall be paid at the time of the. F. "Right-of-way" means an area that
applieation.Hill allows for the passage of people,goods,or utilities.
C. Review of Application. The city Right of way may include freeways, pedestrian
engineer will review the application to determine if connections, and streets. A right of way may be
it complies with standards in this chapter and may dedicated or deeded to the public for public use or,
request comments from affected city departments owned by the city or other public body.
•
and utilities regarding the impact of the proposed
encroachment. 15.16.020 Exemptions
1. The city manager or designee shall A. Certain encroachments are exempt from
conduct a review of the application for an the permit requirement of Section 15.16.010.
encroachment permit to determine its compliance Exempt encroachments are those which would
with the standards in Section 15.16.050 and shall have a minor impact on the present or planned use
request comments from affected city departments of the unimproved publie right-of-way, easement,
regarding the impact of the proposed or public property and those which are expressly
encroachment. permitted by this code. Except as provided by
subsection B of this section, eExempt
15.16.015 Definitions encroachments are:
A. "City engineer" means the city engineer 1. Mailboxes and their enclosing
for the City of Tigard or his or her designee. structures.;
B. "City hearings officer" means the 2. Temporary signs and banners
municipal judge or the individual appointed by the permitted or A-frame signs allowed by the Sign
municipal judge with the delegated authority to Coder;
preside over code enforcement hearings and to
perform the related functions. 3. Guard/handrails along edges of
driveway approaches, walks, stairs, etc.
C. "Encroachment" means any privately encroaching in unimproved public right of way.
owned structure, furnishing, hardscape, or
underground system other than those authorized by 4. . - , : .• , ••: •-- - - -.
Tigard Municipal Code Chapter 15.06, located in trees encroaching in unimproved public right of
the right-of-way or on public property. way that do not obstruct visibility for pedestrians,
bicyclists, and motorists.
D. "Furnishing" means an object that is
designed to be readily moveable and that is not 3. Transportation improvements
permanently affixed to the ground, such as a café required by Tigard Community Development Code
table or tent. Chapter 18.910 and authorized by a right-of-way
permit issued pursuant to Tigard Municipal Code
E. "Public property" means any premises Chapter 15.04; or
owned or maintained by the city.
15-16-2
Exhibit A
TIGARD MUNICIPAL CODE
4. Any encroachments authorized by a B. An appeal must be filed with the city
license or franchise granted pursuant to Tigard recorder engineer within 15 days of the date of the
Municipal Code Chapter 15.06. decision.stating The appeal must include the basis
for the appeal and shall be accompanied by a fee in
B. The encroachments described in an amount established by resolution of the city
subsection A of this section shall not be exempt if council.
they create a line of sight traffic hazard (see
Chapter 18.795). C. The city hearings officer council will
shall conduct a public hearing on the appeal
B. Encroachments existing before providing provide the appellant and any other
November 1, 2018 may remain in place without affected party a reasonable opportunity to be heard
requiring an encroachment permit, provided they on the question of why the decision of the city
are not: engineer manager or designee should be reversed
or modified. Notice of the public hearing shall be
1. A public safety hazard; sent to the applicant, appellant, and
owners/occupants of property within 200 linear
2. Modified in any way, including feet of the boundary of the proposed encroachment.
repaired, relocated, or reconstructed, but not - - - .• • :�
including routine maintenance; and council shall make a final determination in the
matter,applying the standards contained in Section
3. Located on or near a benefitting 15.16.050.The decision of the city hearings officer
property that is the subject of a land use application is a final decision.
or building permit.
15.16.050 Standards and Conditions
15.16.030 Permit Issuance
The city engineer manager or designee may
The city engineer manager or designee may approve the issuance of a permit for encroachment
approve, modify and approve,. or deny the within the unimproved public right-of-way,
application for an encroachment permit based on casement, or public property where compliance
the standards in Section 15.16.050. Notice of the with the following standards is can be
.. ' demonstrated or specific findings are made that the
owners/occupants of property within 200 linear standard i:, found to be not applicable. The city
feet in any direction of the boundary of the engineer manager or designee may attach any
conditions to the issuance of the permit that are
reasonably related to ensuring compliance with this
15.16.040 Appeals section,other applicable city codes and ordinances,
and to protection of the public interest.
A. An applicant or affected property owner
or occupant . - . ... . . .. - . . .•. !! A. Standards for Approval.
lin ar feet of the boundary of the proposed
encroachment may appeal the decision of the city 1. A minimum of three feet of
engineer manager or designee to the city hearings - - -
officer council. hydrants.
15-16-3
Exhibit A
TIGARD MUNICIPAL CODE
2. Clearances to water meters shall be Where drainage is involved, the city manager or
one foot behind and two feet from the sides designee may set specific requirements.
standard cannot be met. been fully improved to its planned dimension with
associated curbs, sidewalks, utilities and street
3. Clearances from manholes and .• - -underground pipelines such as city sewer lines, the property line and the back edge of sidewalk
provided there is a one foot minimum cl urance
minimum of seven bd feet. between the proposed encroachment and the back
edge of the sidewalk and all other standards have
4. Clearances between underground been met.
utilities such as power, telephone, cable TV and
natural landscape materials, or structures placed 57. The proposed encroachment
over those facilities shall be the distance required maintains minimum applicable vertical clearance
for encroachments within the right-of-way, as
the utility providers shall be considered for provided in the Tigard Community Development
Code or Manual on Uniform Traffic Control
Devices. Sufficient room for off street parking and
1. The proposed encroachment is pedestrian travel shall be maintained and the
expressly authorized by the Tigard Community encroachment shall not result in a loss of area
Development Code or is otherwise in the public needed for parking, vehicular maneuvering, or
interest and consistent with the City's Public pedestrian travel.
Improvement Design Standards.
6. The proposed encroachment must
2. The proposed encroachment does not meet minimum horizontal clearances from public
interfere with the existing or future transportation facilities,such as manholes and fire hydrants,as set
system or the provision of public utilities. by the relevant service provider.
3. The proposed encroachment does 8. It is determined that the requested
not impede vision clearance or sight distance, encroachment is consistent with the current use of
pursuant to Tigard Community Development Code the unimproved public right of way, easement or
Chapter 18.920 or the current AASHTO public property.
publication, "A Geometric Design of Highways
and Streets,"whichever is more restrictive. B. Standards of Approval for Furnishings.
In addition to the standards provided in Section
45. Proposed The proposed 15.16.050.A, approval of furnishings as
encroachments shall does not prevent access to, encroachments must meet the following additional
cover, or block the flow of water to or into catch standards.
basins, ditches, or swales, and shall does not
otherwise alter the natural drainage patterns in a 1. Furnishings may not be chained,
manner that adversely affects other property. bolted,or otherwise attached to any fixture,tree,or
15-16-4
Exhibit A
TIGARD MUNICIPAL CODE
item located in the right-of-way,nor attached to the Failure to maintain the insurance shall results in
surface of any right-of-way. automatic revocation of the permit.
2. Furnishings must identify the name 2. The city engineer manager or
and address of the owner on the exterior of the designee may place a limit on the time the proposed
object, as well as an emergency contact number. encroachment may be located in or on the
unimproved right-of-way, easement, or public
3. Furnishings must maintain a property.
weather proof or weather resistant quality.
3. To ensure that unimproved right-of-
4. Furnishings must be designed to be way, easement, or public property encroachments
stable and self-supporting under a wind load of at do not contribute to visual blight or create a safety
least 20 pounds without attachment to the hazard, the permittee must ensure the
pavement or other object. encroachment is maintained and kept in a safe
condition. -• • . - -•• ••• - . .
CR. Conditions. include a requirement that the encroachment be
... .. '. - ••. - . This includes, but is not
1. As a condition of permit issuance, limited to maintaining a condition which is
when When the city manager or designee reasonably free of dirt, rust, and grease as well as
determines that the proposed allowing the chipped, faded, peeling, or cracked paint. All
requested encroachment may subject the city to structural or moving parts must be in working order
potential liability, the city may require a condition and pose no safety hazard to the public. Any glass
of permit issuance shall be the filing with the city or plastic (such as display windows) must be
recorder of the applicant to obtain general liability unbroken and reasonably free of cracks, dents,
insurance and file a certificate of insurance with the blemishes, and discoloration.
city from an insurance company acceptable to the
city.a policy of insurance and form of policy by an 4. The city may impose a charge for
insurance company licensed to do business in the the use of the unimproved public right-of-way,
State of Oregon.The policy will shall protect name easement or public property.
the city, its officers, agents, and employees as
additional insureds. , and the abutting property 5. The city may require the removal of
owners,lessees and tenants from any and all claims the encroachment at any time, including when the
for injury or damage to persons or property that property benefitted by the encroachment develops.
might result from the placing and/or maintenance
of the permitted encroachment. The amount of the 15.16.060 Recording of Permits
insurance policy will be determined by the city,but
in no case will it be less than shall be at least the The city may require the permittee to record
limits of public body liability under the Oregon • .. . . -. -. - --• • - shall be recorded
Tort Claims Act.The policy must shall also contain an approved encroachment permit against the title
a provision that the city will recorder shall be of the benefitting property. The permittee will pay
notified at least 10 days prior to any cancellation of the costs of recording. and the costs of such
such insurance. The permittee must shall maintain recording shall be paid by the applicant.
the insurance for the term of the permit issued.
15-16-5
Exhibit A
TIGARD MUNICIPAL CODE
15.16.070 Revocation of Permits sidewalks, pathways which costs shall may be
imposed as a lien upon the property_on the city lien
A. All unimprovedright-of-way, easement, docket.
or public property encroachment permits shall be
are revocable by the city at any time such 15.16.090 Liability
revocation would be in the public interest.No grant
of any permit, expenditure of money in reliance The permittee, and owner of the benefitted
thereon, or lapse of time shall gives the permittee property if different than the permittee, are
any right to the continued existence of an responsible and liable for all accidents,
encroachment or to any damages or claims against environmental clean-up,damages or injuries to any
the city arising from a revocation. person or property resulting from the construction,
maintenance, repair, operation or use of an
B. Any permit issued under this section encroachment. The permittee will indemnify,
shall be chapter will be automatically revoked if the defend, and hold harmless the city, its elected
permittee fails to comply with any conditions of the officials, and all officers, employees or agents
permit or fails to begin installation of the allowed against any and all damages, claims, demands,
encroachment within 60 days after issuance of the actions, causes of action, costs and expenses of
permit, unless an the applicant requests an whatsoever nature which they or any of them may
extension is requested prior to the expiration of the sustain by reasons of the acts,conduct or operation
60-day period, or fails to comply with any of the permittee, the permittee's agents, or
conditions of the permit. employees in connection with the construction,
maintenance, repair, operation or use of said
15.16.080 Removal of Encroachment encroachment and by reason of the existence of an
approved i.ii mpreved right-of-way or public
A. Upon revocation; pursuant to Section property encroachment.. shall—he—liable—te—any
15.16.070, the permittee or any successor person who is injured or otherwise suffers damage
permittee, shall will, at the permittee's own cost by reason of any encroachment allowed in
remove the permitted encroachment within 30 days accordance with the provisions of this section.
after written notice has been provided by the city -unless a shorter period is specified in the notice of City of Tigard, its officers, agents and employees,
revocation. The permittee must ensure that the for any judgement or expense incurred or paid by
property is restored to a good and safe condition. the city, its officers, agents and employees, by
r ason of the existence of an approved unimproved
B. If the permittee does not remove the right of way, easement or public property
encroachment and return the 04xproved right-of- encroachment.
way, casement, or public property area to a
condition satisfactory to the city engineer,manager 15.16.100 Enforcement
or designee, the city shall may do so and the
permittee shall will be personally liable to the city A. Installation or maintenance of an
for any and all the costs of returning the right-of- encroachment in violation of Section 15.16.010, or
way, easement, or public property to a satisfactory failure to obtain an encroachment permit as
condition, including the removal of structures, the required by Section 15.16.010, or to comply with
encroachment and reconstruction of streets and/or the terms and conditions of an encroachment
15-16-6
Exhibit A
TIGARD MUNICIPAL CODE
permit issued thereunder is hereby declared a civil
infraction subject to enforcement pursuant to
Chapter 1.16.
B. Installation or maintenance of an
encroachment in violation of Section 15.16.010,or
an encroachment permit issued pursuant to Section
15.16.010 is hereby declared to be a public
nuisance pursuant to Title 6 of the Tigard
Municipal Code as defined by Section 6.01.050,
which may be abated pursuant to Chapter 1.16.
(Ord. 12-02 §3; Ord. 99-31) ■
15-16-7