HomeMy WebLinkAbout04/21/2009 22 YMC Amendment 8.20 Right-of-Way Use Permits 110 BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 2_ "2_
- 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.
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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 concerning right -of -way violations, most
of the complaints are associated with violations in residential areas. It was a 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 a
APPROVED FOR SUBMITTAL: Ci Mana•er
STAFF RECOMMENDATION: The Council Neighborhood Development Committee has
reviewed this issue.
BOARD /COMMISSION RECOMMENDATION:
410 COUNCIL ACTION:
Page 2
110
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.
e The City's Code Enforcement office will continue to enforce y n ce 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
owner's 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).
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ORDINANCE NO. 2009- .
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 therefortherefore 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 not currently
4110 dedicated to public uPc. 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, erector 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 - -•- a - - -- -e" - - e- upon an
approved form supplied by him, 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 furniture 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 110
public right -of -way, evidence showing the applicant to be the owner of, or entitled to the
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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.
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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. according to the
or not the application is granted:
Application Fee Schedule
_e••••-•._ • a - - . - .: _ •- - • - .
Commencing January 1, 1987 through December 31, 1987 —forty dollars;
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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`-te (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:
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8.20.050 Grant or denial of permit.
Upon consideration by the city council or the boardCommunity Review 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 a pplicant's compliance with
requirements of Section 8.20.060.
The applicant or other interested persons may appeal to the City Council,- •within thirty
X301 days of the issuance of the Director's written decision a or the board's decision
_ - _ - - _ _ - - - - -d Economic Development Director's
efconcerninq an application for a permit - - - - - •- - _ • _ _ _ _
city council.
, .
Section 6. Section 8.20.052 of Chapter 8 of the City of Yakima Municipal Code is
hereby added as a new section as follows:
8.20.052 Criteria for residential right -of -way use permit consdideration.
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
0 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 be considered. Neither.nonconforming uses
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. _ .
Sect 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, applicant shall file with
the Community and Economic Development Director, orTIis /her designee evidence of •
comprehensive public liability insurance, with limits of not less 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= - -
- - -- --- - -- - --, - - -- - •- -- - - e -• . e- ••_e- - -, 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.
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Section 8. Section 8.20.070 of Chapter 8 of the City of Yakima Municipal Code is
hereby amended to read as follows:
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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 according to the schedule in subsection B of this section; 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.
Renewal Fcc Schedule •
- -- ■ •---••:- •!_ -- -
, 1987 through December 31, 1987 twenty dollars,;
Section 9. Section 8.20.080 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 less 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. previded, In the event the Community and Economic
Development Director, or his /her designee city council 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 terminatedrevoked
pending city council's determination by resolution or motion to permanently revoke the
permitof the city council, such. Permanent revocation shallte be immediately effective
upon written notice delivered to the permit holder in person orby 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:
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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 Ank
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. lfn the event any such structure, er- obstruction or hazard is not so removed,
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the Community and Economic Development Director, or his /her designee sl1+ef of -code
administration 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 8.20.120 - 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 fora 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 8.20.130 of Chapter 8 of the City of Yakima Municipal Code is
hereby amended to read as follows: -
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— 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.
110 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.
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PASSED BY THE CITY COUNCIL at a regular meeting and signed and approved this
21st day of April, 2009
David Edler, Mayor
ATTEST:
City Clerk
Publication Date:
Effective Date:
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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]
e 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 next meeting on the right
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 F YAKIMA
CODE ADMIN. DIVISIO
APR 11 nog
LYREC'VD g`�
OPAID PYIOj