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HomeMy WebLinkAbout2009-015 Right-of-Way Use Permits; YMC Amendment ORDINANCE NO 2009 -15 AN ORDINANCE relating to the regulation of Right of Way Use Permits amending sections 8.20 010; 8.20 020; 8.20 030; 8.20 040; 8.20 050; adding 8.20 052, amending 8.20 060; 8.20 070; 8.20.080; 8.20 090; 8.20 100; 8.20.110; 8.20 130 of Chapter 8.20 of the City of Yakima Municipal Code BE IT ORDAINED BY THE CITY OF YAKIMA. Section 1. Section 8.20 010 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows: 8.20 010 Use of public right -of -way without permit prohibited It is unlawful for any person to use, for a private purpose, any public right -of -way utilized for a public purpose without first obtaining a permit therefore pursuant to this chapter and without otherwise complying with provisions of this chapter applicable to such occupancy or use, provided, the provisions of this chapter shall not apply to work in public right -of -way performed by the city, its agents or contractors, or to occupancy and use of public right -of -way under the authority of any franchise granted by the city, or to persons using or occupying public right -of- way pursuant to some other permission or authority granted by the city This chapter shall not apply to political signs placed in public rights -of -way Such areas may include but are not limited to the area between the sidewalk and the curb of a roadway Section 2. Section 8.20 020 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows: 8.20 020 Definitions As used in this chapter, unless a different meaning clearly appears from the context, the following words, phrases, and terms shall have the following meanings ascribed to them 1 "Person" means a natural person, partnership, corporation or any other legal entity 2 "Public right -of -way" means streets, alleys, sidewalks, planting strips, and other public squares, places and rights -of -way open to the use of the public including the space above and beneath the surface of such public rights -of -way 3 "Use" means to construct, erect or maintain in, upon, over or under any public right -of -way any structure for the private use of the adjoining property owner or occupant. Section 3. Section 8.20 030 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows. 8.20 030 Application for permit —Fee A. Applications for permits to be issued pursuant to this chapter shall be filed with the Community and Economic Development Director upon an approved form, and shall be accompanied by a detailed scale drawing depicting the public right -of -way in the vicinity of the area for which the permit is sought, including existing utilities, street lights and traffic signal poles, street fumiture and similar features of the area. Such application shall contain an accurate description of the public right -of -way or portion thereof desired to be used under the authority of the permit sought, the use desired to be made of the public right -of -way by the applicant pursuant to the permit, the plans and specifications for any utility or structure desired in or on a public right -of -way, evidence showing the applicant to be the owner of, or entitled to the possession and use of, the property adjacent to the right -of -way concerning which the permit is sought and such other information deemed necessary or desirable by the chief of code administration to enforce compliance with or to otherwise administer the provisions of this chapter B All applications shall be accompanied by an application fee The application fee shall be fifty dollars ($50 00) as set forth in Ordinance 2938 § 2, 1986 Section 4. Section 8.20.040 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows. 8.20 040 Processing of application. The code administration manager shall examine each application for compliance with requirements of this chapter and for compliance with any applicable provisions of the city's building code and shall endorse his/her findings on the application form and transmit it: (1) For business /commercial uses, to the city clerk for consideration by the city council, except that applications for permits to place signs in city -owned right -of -way shall be transmitted to and approved or denied by the Community and Economic Development Director or his/her designee, or (2) for residential uses (single family and duplex, and /or located within a residential neighborhood), to the Community Review Board (hereinafter "board ") Section 5. Section 8.20 050 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows: 8.20 050 Grant or denial of permit. Upon consideration by the city council or the board of the application for a permit, the council or board shall, by motion, approve or deny the application, except that applications for permits to place signs in city -owned right -of -way shall be considered and approved or denied by the Community and Economic Development Director, or his/her designee. Upon approval of an application by the council, board or, in the case of an application for a permit to place a sign in city -owned right -of -way, the Community and Economic Development Director, the code administration manager shall issue the permit upon applicant's compliance with requirements of Section 8.20.060 The applicant or other interested persons may appeal to the City Council within thirty (30) days of the issuance of the Director's written decision or the board's decision conceming an application for a perrnit. Section 6. Section 8.20 052 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 052 Criteria for residential right -of -way use permit consideration. A right -of -way use permit shall be granted by the Community Review Board only when the applicant demonstrates that the permit will not be contrary to the public interest and that practical difficulty and unnecessary hardship will result if it is not granted. The applicant must clearly establish and substantiate that the request for permit conforms to all of the requirements and standards listed below* A. That granting the right -of -way use permit will be consistent with the general purpose and intent and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; B That granting the right -of -way use permit will not authorize the establishment of any use not permitted in a particular zoning district; C That a unique circumstance, special circumstance or condition exists, fully described in the board's findings, specifically applicable to the land or structures for which the right -of -way use permit is sought. The special circumstance or condition must be peculiar to such land or structures and not generally applicable to land or structures in the neighborhood The special circumstance or condition must also be such that the strict application of the right -of -way provisions would deprive the applicant of reasonable use of applicant's land or structure, and, D That an unavoidable hardship exists It is not sufficient proof of hardship to show that lesser cost would result if the right -of -way use permit were granted. Furthermore, the hardship complained of cannot be self- created, nor can it be established on this basis by one who purchases without knowledge of the restrictions It must result from the application of the desired use to the land or structure It must be suffered directly by the applicant for the property in question, and evidence of a permit granted under similar circumstance elsewhere shall not be considered. Neither nonconforming uses nor neighboring lands or structures, nor buildings in other zoning districts shall be considered as factors relevant to the issuance of a right -of -way use permit; and, E. That the requested right -of -way use permit is the minimum remedy that will accomplish this purpose. Section 7. Section 8.20.060 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows. 8.20 060 Liability insurance required. Prior to the issuance of any permit pursuant to this chapter, the applicant shall file with the Community and Economic Development Director, or his /her designee evidence of comprehensive public liability insurance, with limits of not Tess than five hundred thousand dollars combined single limit for bodily injury and property damage for residential uses and one million dollars combined single limit for bodily injury and property damage for business uses, with the city of Yakima named as an insured party, insuring against liability from injury or damage resulting from applicant's occupancy of or activities on public right -of -way under the permit to be issued, which insurance shall be maintained in effect during the term of the permit. Section 8. Section 8.20 070 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows: 8.20 070 Term of permit—Renewal A. Permits issued pursuant to this chapter shall be valid for a period of one year from the date of issuance and shall be subject to renewal annually on application therefore, and on payment of renewal fee of twenty five dollars ($25 00) as set forth in Ordinance 2938 § 3, 1986, provided, permits granted under authority other than this chapter shall remain in full force and effect according to their terms without the necessity for application therefore or renewal thereof and without the payment of a permit fee, unless any such permit is terminated or revoked as provided by that permit. Section 9. Section 820.080 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 080 Revocation of permits No permit granted pursuant to this chapter shall vest any permanent right in the permit holder; and any such permit may be revoked by resolution or motion of the city council, followed by notice to the permit holder given by the code administration manager that such permit is revoked, which notice shall be given not Tess than thirty days prior to the effective date of revocation specified in such notice. The notice shall be in writing and personally delivered to the permit holder or mailed to the permit holder at its address specified in the application. In the event the Community and Economic Development Director, or his /her designee determines that the continued use of public right -of -way pursuant to a permit constitutes an immediate hazard to the public, such permit may be immediately suspended and further use thereof terminated pending city council's determination by resolution or motion to permanently revoke the permit. Permanent revocation shall be immediately effective upon written notice delivered to the permit holder in person or by mail as provided by this section. Section 10. Section 8.20 090 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 090 Discontinuance of use on termination or revocation of permit. Upon the (1) termination of a permit, unless renewed, (2) suspension of the permit by the Community and Economic Development Director, or his/her designee, or (3) revocation of any permit issued pursuant to this chapter, the person to whom that permit was originally issued shall forthwith discontinue the use of public right -of -way authorized by such permit, and shall forthwith remove all structures and right -of -way obstructions authorized by such permit. In the event the Community and Economic Development Director, or his/her designee suspends the permitted use on the basis of an articulable hazard presented by said use, the permittee shall immediately remove the hazardous condition. If any such structure, obstruction or hazard is not so removed, the Community and Economic Development Director, or his /her designee may cause the same to be removed and perform any repair work to public right -of -way necessitated by such removal in order to render the public right -of -way safe for public use, and the person to whom the permit was originally issued shall be liable to the city for all expenses of such removal and repair Section 11. Section 8.20 100 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 100 Permit not transferable. The privilege to use public right -of -way granted by any permit issued pursuant to this chapter shall be a personal privilege of the person to whom the permit is issued, and no such permit shall be transferable without the consent of the Yakima city council first being obtained Any attempted transfer of any such permit without city council approval shall automatically render the permit null and void Section 12. Section 8.20 110 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 110 Safety and building code compliance All work performed by the authority of a permit issued pursuant to this chapter shall be accomplished in compliance with all applicable city building codes and other city ordinances, and with the Washington Industrial Safety and Health Act, and shall be diligently pursued so as to cause the least possible inconvenience to the public. Section 13. Section 8.20120 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 120 Penalty for violation —Each day a separate offense Any person convicted of violating any provision or failing to comply with any requirement of this chapter shall be subject to a fine in an amount not to exceed two hundred fifty dollars or by imprisonment in the city jail facility for a period not to exceed ninety days, and any such violation or failure to so comply constitutes a continuing offense with each day constituting a separate offense of this section. Section 14. Section 8.20130 of Chapter 8 of the City of Yakima Municipal Code is hereby amended to read as follows 8.20 130 Violations as nuisances. Any private use of public right -of -way contrary to the provisions of this chapter or other lawful authority is a public nuisance, subject to prevention or abatement by injunction or other appropriate remedy in an action brought by the city in the Superior Court of the state of Washington in and for Yakima County Section 15. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance is declared invalid or unconstitutional for any reason, such decision shall not affect the validity of the remaining portions of this ordinance. Section 16. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter PASSED BY THE CITY COUNCIL at a regular meetin• - d signed and approved this 21st day of April, 2009 // J, , David Edler, Mayor ATTEST City Clerk Publication Date 4 -24 -09 Effective Date 5 -24 -09 From. Pearson, Joel Sent: Tuesday, March 03, 2009 2 48 PM To Emery, Julie Subject: RE right of way use permit insurance requirements That is a tough one A fence that partially obstructs a street view does create potential liability Some fences may not obstruct any view and have little liability So my recommendation is on the conservative side Using the consumer price index, you would have a 428% increase between 1974 and now, so that definitely supports higher limits The absolute minimum I would recommend are $500,000 combined single limit for bodily injury and property damage for personal and $1,000,000 combined single limit for bodily injury and property damage for a business However, I would feel more comfortable with double those limits From. Cook, Bill [mailto bcook @ci yakima wa us] S Sent: Tuesday, March 03, 2009 2 03 PM To Emery, Julie Subject: FW right of way use permit insurance requirements Here is the current code language for use of the City's ROW In general an annually renewable permit is not required for vegitation including street trees but is required for residential fences, sheds, or other construction and for commercial structures, loading docks, signs, etc Your thoughts byWednesday`pm would be appreciated To Royal, • We won't be able to attend the nextmeeting on the nght away usage permit ( Re fence on 9th Ave) Due to us being out of state at that time We are truely sorry and grateful for your understanding Sincerely Viviano & Tracy Ramirez 216 So 9th Ave Yakima, WA 98902 CITY •E YAKIMA CODE ADMIN DIVISIO APR 1.0 1619 of EC'VL v-2 ❑PAID FYI❑ 410 • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No 4C ZZ For Meeting of April 21, 2009 ITEM TITLE. Consideration of an Ordinance authorizing amendments to Yakima Municipal Code 8.20 Right -of -Way Use Permits SUBMITTED BY William R. Cook, Director of Community and Economic Development Department CONTACT PERSON/TELEPHONE. William R Cook, Director of Community and Economic Development (575 -6113) SUMMARY EXPLANATION Over the past several months the Council's Neighborhood Development Committee has reviewed options to amend Chapter 8.20 of the Yakima Municipal Code (YMC) which regulates right -of -way use permits This discussion came about as a result of a recent right -of -way use permit request to Council from the owner of a residence at 216 South Ninth Avenue At your January 6, 2009 Council meeting, the permit request and the question of amending and updating YMC Chapter 8.20 were referred to the Committee. iii Currently, right -of -way use permits are issued by the City with Council approval, are renewable annually for a small fee of $25 00, and require the applicant to provide evidence of liability insurance with the City of Yakima listed as "additional insured." The vast majority of our existing permits (128 of 131) are for commercial uses. Only three residential permits exist currently Although we receive only a small number of complaints conceming right -of -way violations, most of the complaints are associated with violations in residential areas. It was a complaint that led to the permit request at 216 South Ninth Avenue (Continued on Page 2) Resolution Ordinance X Other (Specify) Contract Mail to (name and address) Phone Funding Source N/A APPROVED FOR SUBMITTAL. Ci Mana•er STAFF RECOMMENDATION The Council Neighborhood Development Committee has reviewed this issue BOARD /COMMISSION RECOMMENDATION • COUNCIL ACTION ' r Page 2 Attached are the Committee's recommendations for amending Chapter 8.20 Summarizing, these changes and new provisions include • A distinction is made between commercial and residential right -of -way use permits with commercial permit requests being reviewed by Council and residential permit requests being reviewed by the City's Community Review Board (CRB) • Residential permits will be subject to the current standards for a "variance" in our Zoning Ordinance requiring the CRB to `find" a unique or special circumstance as a condition for approval • Insurance requirements will be increased from the current 1974 levels as recommended by the City's insurance underwriter Wells Fargo Insurance Services (see attached email) • Application fees will remain at $50 00 • Renewal fees will remain at $25 00 • Language to expedite the process for the City to remove obstacles in the City's right of way that constitute an "articulable hazard" has been added • The City's Code Enforcement office will continue to enforce YMC Chapter 8.20 on a complaint basis as is done currently • The Neighborhood Development Committee also strongly recommends a focused effort on educating the public, real estate professionals and everyone involved in the process of buying and selling property regarding the importance of complying with YMC Chapter 8.20 Please note, the application for a right of way use permit for Mr Viviano Ramirez at 216 South Ninth Avenue was received prior to Council's consideration of these changes. The property o request is vested under the current ordinance language and will be heard separately His circumstance would not be impacted by a subsequent amendment to YMC Chapter 8.20 Mr Ramirez is currently out of town and has requested a two -week delay for your consideration of his request (see attached correspondence) 0