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HomeMy WebLinkAbout89-2785AMENDING CHAPTER 21 - STREETS AND SIDEWALKS ORDINANCE NO. 89-2785 AN ORDINANCE .AMENDING CHAPTER 21, STREETS AND SIDEWALKS OF THE PLAINVIEW CITY CODE; DEFINING TERNtS; PROVIDING FOR PROHIBITED ACTIVITIES AND USES ON PUBLIC RIGHTS OF WAY; PROVIDING FOR USE AND. CARE t~F PUBLIC RIGHT-OF-WAY; PROVIDING FOR LICENCES TO ENCUMBER PUBLIC RIGHT-OF-WAY; AND PROVIDING .FOR A PENALTY AND SEVERABILITY CLAUSE. WHEREAS, the City Council of the City of Plainview, Texas desires to encourage and provide for orderly, safe, ..and healthful development of areas within the City; and WHEREAS, the City Council of the City of Plainview, Texas finds it to be in the best interest of the citizens of the City to provide for prohibitions and .licensing procedures to protect the public right-of-way; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS: SECTION 1: THAT Chapter 21, Article I Section 21-8 of the Plainview City. Code be repealed. SECTION 2: THAT Chapter 21 of the Code of the City of Plainview, Texas, is hereby amended by adding an Article to be numbered Article VI, which Article reads as follows: Article VI -.Encumbrances and Obstructions of Public Ways. Section 1. .Definitions (a) A11ey: a-minor way which is used primarily for installation of public utilities and. for vehicular service. access to the back side or the side of the property otherwise abutting the street. (b) City: :City of Plainview, Texas. (c) Easement: a right held by the City to be used for access, drainage, or the placement of utilities such as, but not limited to, water, sewer, gas, telephone, cable television, and electrical lines. (d} Franchise: A grant of authority by the City of Plainview to utilize the public right-of-way under ~~- certain specific terms and conditions given by ordinance. 1 of 7 (e) Right-of-way: any strip or area of land including, surface, overhead or air space, or underground or .subsurface space which is used or intended to be used or dedicated to be used wholly or in part as a public street, alley, or as the location of public walkways and utility or drainage facilities or installations. (f) Sidewalk: the concrete or asphalt surfaced portion of a street between either the curb. line or roadway and the adjacent property line intended for pedestrian use. (g) Street: the entire width between the boundary lines of every right-of-way, other than an alley, publicly maintained. when any part of it is opened to the public far vehicular use. (h) Other Definitions: definitions not expressly described herein are to be determined in accordance with customary usage in municipal .planning and engineering practices. Section 2. Unlawful Activities. The following activities, uses, conditions, or occurrences. on public right-of-way shall be deemed unlawful: (a) To operate any machinery having tracks, feet, or pulling lugs over or along any paved streets or alleys. (b) To hauling of gravel, brick, sand, concrete, ready mix concrete or mortar in such a manner to scatter ar waste these substances onto any streets, alleys, or sidewalks. (c} To drop, spill, or allow to leak out of any tank or vessel, whether connected with a motor vehicle or otherwise, any gasoline or other oil or petroleum base substance on to any street, alley, or sidewalk. (d) Ta discharging of any odorous water, sewage, waste water, waste oils, kitchen grease, kitchen slop water, mop water, or other offensive or hazardous substance .onto any public right-of-way. (e) To place, locate, store, construct, install, or maintain any structure, building, object, vehicle, device, fence, wall or other material on or within any public right-of-way. Trees and other living, domesticated vegetation located within the parkway area of a paved street and mailboxes are exempt from this prohibition. 2 of 7 Provided however City, or its authorized agents, shall not be required to replace any obstruction on or within any public way that must be removed during the course of maintenance,..construction and/or reconstruction on or within the public way. (f} To cast, place,. or store any animal, offal, garbage, trash, refuse, or debris into or upon any street, alley, sidewalk, street gutter or other public right-of-way. (g) To construct or place any temporary or permanent structure within, on, or over any .public utility or drainage. Easement except for utilities or :other facilities. associated with drainage. The property owner may place removable section type fencing, asphalt or concrete paving, or landscaping within any dedicated public utility easement. Provided however that the City or any franchised utility of the City shall not be required to replace anything that must be removed during the course of maintenance, construction or reconstruction within any public utility or drainage Easement. Section 3. License to Sncumber Right-of-Way. The following shall control the consideration of requests for encumbrances on, over, under, or through public rights-of-way.' (a) The right to encumber the public right-of-way may be granted only by license and every Grantee of a license shall agree to indemnify and hold the City of Plainview harmless from any and all .damages to persons or property or bath., arising in any manner out of the use of licensed premises. Each .applicant for a license shall submit a non refundable deposit of Two Hundred Fifty Dollars ($250.00) to cover the. expenses of the processing costs associated therewith. -The total deposit shall be credited toward the issuance of the first year license fee, should the applicant be approved for a license. The application must be accompanied by plans or drawings sharing the area to be used and a statement of the purpose for which the right-of-way is to be used. The applicant is responsible for the establishment of the fair market value in the areas of consideration .for license. Fair market value shall be established by a competent appraiser and in accordance with customary practices in real estate appraisal. 3 of 7 (b) No individual, person, firm, or corporation shall be granted a license for an encumbrance of the public right-of-way that .would adversely affect the public health, safety, or welfare of the citizens of the City of Plainview. (c) Subject to the exemptions set forth in Section 4 of this Article, no license shall be issued or granted for an encumbrance of the public right-of-way for less than a three (3) foot width. (d) Subject to the exemptions set forth in Section 4 of this Article, a licensee shall pay a license fee depending upon the amount of right-of-way ' encumbered as set out below. In no event shall a license fee be less than TWO HUNDRED FIFTY DOLLARS ($250.00} for a period. of one year. {i) For a private license authorizing a surface encroachment at the ground level, the annual license fee shall be 70 of the fair market value times the square footage of encumbrance. (ii} For a private license authorizing an air .space encroachment above the ground level, the annual license fee shall be 70 of the fair market value times the square footage of encumbrance. (iii) For a private license to encumber subsurface area, the annual license fee shall be 20 of the fair market value times the square footage of encumbrance. (e) Said license fee for each licensee shall be subject to annual review by the City Council and is subject to change. if) The-total deposit shall be credited toward the license fee for the issuance of the first year of a license should such be granted. Any individual, person, firm or corporation wishing to encumber the public right-of-way in any manner shall submit a license application and required deposit to the Director of Municipal Services. Upon receipt and normal review by various City departments-and public utility companies of such application the Director of Municipal Services shall forward the request 'to the City Manager for approval. 4 of 7 r ~- (g) Any license granted hereunder shall.be drafted. by the City Attorney's Office. (h} In the event any individual, firm, person, ar corporation is denied a license, he shall have the right to appeal such denial to the City Council. by filing a written notice of appeal with the City Secretary no later than five (5) days from his/her receipt of notice of the denial of the request. (i) The City Council shall hear the applicant's request within 30 days of notice of appeal and shall determine whether or not to uphold the denial, to grant the request as presented or to modify it. Section 4. Exemption.. Any applicant, who wishes to encumber public rights of way, for installation of: a private water line, with a diameter of one inch (1") or less, and for a distance of not more than three hundred feet (300'}; a private. sewer line,. with a diameter of four inches (4") of less, and for a distance of not more than three hundred feet (300'); and an overhead line for a distance of- not more than. three hundred feet (300').; or for an encroachment by a building, are hereby exempt from the annual license fee and shall be subject to a one time. license fee of fifty dollars {$50.00). An applicant who wishes to encumber the public right of way adjacent to the applicants' private property for the purpose of installation of a private lawn sprinkler or irrigation system is hereby .exempt from the license fee requirements of this ordinance. Section 5. No Obstruction of Public Property. Applicant shall not, unnecessarily or for an unreasonable period of time, obstruct or interfere with the public use of any streets, .roads, highways, alleys or public ways owned or controlled by the City. Section 6. Repair of Damages. Applicant shall repair any and all damages caused by applicant to any real property owned or controlled by the City and shall restore, such real property to substantially its condition immediately prior to the incident causing such damage. Applicant shall commence such repairs immediately upon completion of the work or activity in which applicant was involved at the time the damage occurred and shall complete such repairs as promptly as possible. Applicant shall maintain the repairs to the satisfaction of the City for one year from the date the surface of said street, road, highway, alley or public way is broken for such construction or maintenance work, after which time, responsibility for the maintenance shall become the duty of the City. The City may, from time to time, adopt reasonable ordinances regulating such work. 5 of 7 Section 7. Conduct of Work and Activities. Applicant shall use reasonable care in conducting its work and activities in. order to prevent injury to any person and unnecessary damage to any real or personal property. Section 8. Use of Alleys.. Applicant shall attempt to utilize the alleys of the City insofar as is reasanabl~r practical in conducting its work and activities hereunder. Notwithstanding the foregoing, however, applicant may, when approved by City, utilize the streets and any other public .ways- owned or controlled by the City to perform such work and activities. Section 9. Changes in Encroachments. Applicant shall, upon written request from the' City,. change the location, position, route, depth ar height of any encroachment or other components of the encroachment if and when such change .becomes reasonably necessary because of a change in .the grade of any street, road, highway, alley, public way, or other. real property owned or controlled by the City or because of any change in the location of, or in the manner of maintaining, constructing, laying, repairing, removing, replacing, installing, or operating, any pavement, curbs, gutters, or underground or aboveground wires, cables or water or sewer pipes owned or controlled by the City. The City's written request for such change must set forth, in detail, .all of the essential elements and specification of the requested change. All of the changes in location, position, route, depth or height described in the immediately foregoing paragraph, shall be made at applicants:' sole expense, provided, however, that applicant may seek payment from any governmental entity or agency (except the City,) person, or party of any amount to which applicant may lawfully be entitled because of such change in location, position, route, depth, or height, or because of the abandonment of any encumbrances or other component of the encumbrances regardless of whether such encumbrances or component is wholly or partially located in any public or private way or right-of-way. Section 10. Maps of Encumbrances Applicant shall, at all times, keep on file with the City Engineer a map or maps showing the current location of all encumbrances and other components of applicant's facilities located in the City. Section 11. Jurisdiction. Any agreement shall be construed under and in accordance with the laws of the State of Texas., and all obligations of the parties hereunder .are performable in Hale County, Texas. .Section 12. Conflicts. In the event of any conflict between the provisions of this section and any other .provision of the Plainview City Code or other ordinances, this Section shall control. Provided however that nothing in this ordinance shall effect the right of a holder of a lawfully granted franchise. 6 of 7 Section. 13. Penalty. Any person, individual, firm, or corporation found guilty of violating. any of the provisions of this article shoal be deemed guilty of a misdemeanor-and subject to the penalty provisions of Chapter 1, Section 1-5 of the Plainview City Code and each and every day that a provision of this ordinance is violated shall constitute a separate offense. Section 14. Severabl.ty. If any section, paragraph, sentence, clause, phrase, or word within this article, is hereby declared to be void, invalid, or unconstitutional, such. unconstitutionality, voidness, or invalidness shall not affect any of the remaining sections, paragraphs, sentences, clauses phrases., or words of this article. PASSED AND APPROVED on the 11th day of A ril , 1989. E.V.. Ridlehuber, Mayor ATTEST: Car a Reese, City Secretary APPROVED AS TO CONTENT: mes P. ffers, page APPROVED AS TO FORM: ~- David Blackburn, City Attorney r` ~. 7 of 7