Ordinance No. 99-31 TIGARD,OREGON
ORDINANCE NWA-31
AN ORDINANCE OF THE CITY OF TIGARD,OREGON,AMENDING TITLE 15 OF THE
TIGARD MUNICIPAL CODE BY AMENDING CHAPTERSAND 15.04 AND BY
ADDING A NEW CHAPTER 15.16,ENCROACHMENT PERMITS.
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WHEREAS, the City Council finds it would be beneficial to the City to require permits for
encroachments within unimproved public rights of way,easements and on public property;
NOW,THEREFORE;the City of Tigard ordains as follows:
Section : Title 15 of the Tigard Municipal Code is amended by adding a new chapter 15.16,
"Encroachment Permits"to read as follows:
15.16.010 Encroachments Within Unimproved Public Rights of Way, Easements and
Public Property
1. Permits Required for Encroachment in Unimproved Public Rights of Way,
Easements and Public Property;Exceptions.
a. Except as provided in subsection (b) of this section, it shall be unlawful
for any person to erect or cause to be erected any structure or to place or
maintain any vegetation and/or landscaping materials in,over or upon any
dedicated unimproved public right of way, easement or public property
without having first obtained a revocable permit from the City Manager or
designee authorizing such action. Encroachment into improved public
right of way is only allowed if specifically authorized by the City pursuant
to TMC Chapter 15.04.
b. The person in control of any encroachment of a structure, vegetation
and/or landscaping materials in, over or upon any dedicated unimproved
public right of way, easement or public property existing on December 7,
1999 shall apply for an encroachment permit pursuant to this chapter no
later than March 6, 2000. No action charging a violation of subsection(a)
of this section may be initiated for an encroachment existing on
December 7, 1999 before March 6, 2000 or while a timely filed
application for an encroachment permit is under consideration by the City.
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2. Application and Fee Required.
a. Any person desiring to locate or maintain an encroachment within any
unimproved public right of way, easement or public property shall submit
an application to the City Manager or designee. The application shall
include a description of the proposed encroachment; a scale drawing
illustrating the nature and extent of the proposed encroachment and its
relationship to adjoining properties. If the applicant is not the owner of
the property that will be benefitted by the encroachment,the owner of that
property shall also sign the application as a co-applicant. The City
Manager or designee may require an actual survey to determine the exact
location of any public or private improvements or significant vegetation.
b. The application shall be accompanied by a petition indicating the extent of
support for the proposed encroachment by owners/occupants of property
within 200 linear feet in each direction from the boundary of the proposed
encroachment,and the names and mailing addresses of all property owners
within that 200 foot area.
C. A fee in the amount established by resolution of the City Council shall be
paid at the time of the application.
3. Review of Application.
a. The City Manager or designee shall conduct a review of the application for
an encroachment permit to determine its compliance with the standards in
TMC 15.16.050 and shall request comments from affected City
departments regarding the impact of the proposed encroachment.
15.16.020 Exemptions.
1. Certain encroachments are exempt from the permit requirement of TMC
15.16.010. Exempt encroachments are those which would have a minor impact
on the present or planned use of the unimproved public right of way, easement or
public property and those which are expressly permitted by Code. Except as
provided by subsection 2 of this section,exempt encroachments are:
a. Mailboxes and their enclosing structures.
b. Temporary signs and banners permitted by the Sign Code.
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C. Guard/handrails along edges of driveway approaches, walks, stairs, etc.
encroaching in unimproved public right of way.
d. Lawns,plants and approved street trees encroaching in unimproved public
right of way that do not obstruct visibility for pedestrians, bicyclists and
motorists.
2. The encroachments described in subsection 1 of this section shall not be exempt if
they create a line of sight traffic hazard(TMC Chapter 18.795).
15.16.030 Permit Issuance.
The City Manager or designee may approve, modify and approve or deny the application
for an encroachment permit. Notice of the decision shall be sent to the applicant and
owners/occupants of property within 200 linear feet in any direction of the boundary of
the proposed encroachment.
15.16.040 Appeals.
1. An applicant or affected owner/occupant of property within 200 linear feet of the
boundary of the proposed encroachment may appeal the decision of the City
Manager or designee to the City Council,
2. An appeal must be filed with the City Recorder within 15 days of the date of the
decision stating the basis for the appeal and shall be accompanied by a fee in an
amount established by resolution of the City Council.
3. The City Council shall conduct a public hearing on the appeal providing the
appellant and any other affected party a reasonable opportunity to be heard on the
question of why the decision of the City Manager or designee should be reversed
or modified. Notice of the public hearing shall be sent to the applicant, appellant,
and owners/occupants of property within 200 linear feet of the boundary of the
proposed encroachment. At the conclusion of the public hearing the City Council
shall make a final determination in the matter,applying the standards contained in
section 15.16.050.
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15.16.050 Standards and Conditions.
The City Manager or designee may approve the issuance of a permit for encroachment
within the unimproved public right of way, easement or public property where
compliance with the following standards can be demonstrated or specific findings are
made that the standard is not applicable. The City Manager or designee may attach any
conditions to the issuance of the permit that are reasonably related to ensuring
compliance with this section, other applicable City codes and ordinances, and to protect
the public interest.
1. Standards for Approval.
a. A minimum of three(3) feet of clearance shall be maintained on all sides
of fire hydrants.
b. Clearances to water meters shall be one (1) foot behind and two (2) feet
from the sides measured from the outside edges of the box. The applicant
shall pay for meter relocation if this standard cannot be met.
C. Clearances from manholes and underground pipelines such as City sewer
lines,water lines, and storm drain lines shall be a minimum of 7 %Z feet.
d. Clearances between underground utilities such as power, telephone, cable
TV and natural landscape materials, or structures placed over those
facilities shall be the distance required by the affected utilities. Conditions
requested by the utility providers shall be considered for inclusion into the
permit.
e. Proposed encroachments shall not prevent access to, cover, or block the
flow of water to or into catch basins, ditches, or swales, and shall not
otherwise alter the natural drainage patterns in a manner that adversely
affects other property. Where drainage is involved, the City Manager or
his designee may set specific requirements.
f. Where the adjacent right of way has been fully improved to its planned
dimension with associated curbs, sidewalks, utilities and street trees, ar.
encroachment may be permitted between the property line and the back
edge of sidewalk provided there is a one (1) foot minimum clearance
between the proposed encroachment and the back edge of the sidewalk and
all other standards have been met.
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g. Sufficient room for off-street parking and pedestrian travel shall be
maintained and the encroachment shall not result in a loss of area needed
for parking,vehicular maneuvering,or pedestrian travel.
h. It is determined that the requested encroachment is consistent with the
current use of the unimproved public right of way, easement or public
property.
2. Conditions.
a. When the City Manager or designee determines that allowing the
requested encroachment may subject the City to potential liability, a
condition of permit issuance shall be the filing with the City Recorder of a
policy of insurance and form of policy by an insurance company licensed
to do business in the State of Oregon. The policy shall protect the City,its
officers, agents, and employees, and the abutting property owners, lessees
and tenants from any and all claims for injury or damage to persons or
property that might result from the placing and/or maintenance of the
permitted encroachment. The amount of the insurance policy shall be at
least the limits of public body liability under the Oregon Tort Claims Act.
The policy shall also contain a provision that the City Recorder shall be
notified at least 10 days prior to any cancellation of such insurance. The
permittee shall maintain the insurance for the term of the permit issued.
Failure to maintain the insurance shall result in automatic revocation of the
permit.
b. The City Manager or designee may place a limit on the time the proposed
encroachment may be located in or on the unimproved right of way,
easement or public property.
C. To ensure that unimproved right of way, easement, or public property
encroachments do not contribute to visual blight or create a safety hazard,
conditions of permit approval may include a requirement that the
encroachment be appropriately maintained.
d. The City may impose a charge for the use of the unimproved public right
of way,easement or public property.
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15.16.060 Recording of Permits.
Approved encroachment permits shall be recorded against the title of the benefitting
property and the costs of such recording shall be paid by the applicant.
15.16.070 Revocation of Permits.
All unimproved right of way, easement or public property encroachment permits shall be
revocable by the City at any time such revocation would be in the public interest. No
grant of any permit, expenditure of money in reliance thereon, or lapse of time shall give
the permittee any right to the continued existence of an encroachment or to any damages
or claims against the City arising from a revocation.
Any permit issued under this section shall be automatically revoked if the permittee fails
to begin installation of the allowed encroachment within sixty (60)days after issuance of
the permit unless an extension is requested prior to the expiration of the sixty (60) day
period,or fails to comply with any conditions of the permit.
15.16.080 Removal of Encroachment.
Upon revocation, the permittee or any successor pennittee, shall at the pennittee's own
cost remove the permitted encroachment within thirty (30) days after written notice has
been provided by the City unless a shorter period is specified in the notice of revocation.
If the permittee does not remove the encroachment and return the unimproved right of
way, easement or public property area to a condition satisfactory to the City Manager or
designee, the City shall do so and the permittee shall be personally liable to the City for
any and all costs of returning the right of way, easement or public property to a
satisfactory condition, including the removal of structures and reconstruction of streets
and/or pathways which costs shall be imposed as a lien upon the property on the City
Lien Docket.
15.16.090 Liability.
The permittee, and owner of the benefitted property if different than the permittee, shall
be liable to any person who is injured or otherwise suffers damage by reason of any
encroachment allowed in accordance with the provisions of this section. Furthermore,the
permittee shall be liable to the City of Tigard, its officers, agents and employees, for any
judgement or expense incurred or paid by the City, its officers, agents and employees,by
reason of the existence of an approved unimproved right of way, easement or public
property encroachment.
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15.16.100 Enforcement,
1. Installation or maintenance of an encroachment in violation of TMC 15.16.010,or
failure to obtain an encroachment permit as required by TMC 15.16.010, or to
comply with the terms and conditions of an encroachment permit issued
thereunder is hereby declared a civil infraction subject to enforcement pursuant to
TMC Chapter 1.16.
2. Installation or maintenance of an encroachment in violation of TMC 15.16.010,or
an encroachment permit issued pursuant to TMC 15.16.010 is hereby declared to
be a public nuisance as defined by TMC Chapter 7.40, which may be abated
pursuant to TMC Chapter 1.16.
Section 2: Section 7.52.120 of the Tigard Municipal Code is amended to read as follows:
It is unlawful for any person to remove, destroy, break, injure, mutilate, or deface in any
way any structure, monument, statue,vase, fountain, wall, fence, railing,vehicle, bench,
tree, shrub, fern, plant, flower or other property in any park unless otherwise licensed or
privileged to do so.
Section 3: Section 15.04.020 of the Tigard Municipal Code is amended to read as follows:
(1) It is unlawful for any person to cut upon or within, break, dig up, damage in any
manner, undermine or tunnel under any public street or public alley for the
purposes of doing work in a public right of way or in a sanitary sewer, storm
sewer or water easement as described in this chapter,without first complying with
the provisions of this chapter in regard to the obtaining of permits, depositing of
securities and the making of applications to the city. Applications for permits
shall be in the form prescribed by the city. Permits shall be issued on an annual
basis or for a limited time and shall specify the extent of the authority granted by
the permit.
(2) Any person who cuts upon or within, breaks, digs up, damages in any manner,
undermines or tunnels under any unimproved public street or public alley for
purposes other than those described in this chapter,must obtain an encroachment
permit pursuant to Chapter 15.16 of this Code.
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PASSED; By MMMD6 vote of all Council'members present after being read by number
and title only, this 11day of �1�Q C g jg:1 ?� , 1999.
Catherine Wheatley, City Record
APPROVED: By Tigard City Council this-J day of 1999.
Jam oli,Mayor
Approved as to form:
t
City tt rney
Date
j mclacrt✓90024/encroachment.or l(11/2/99)
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