HomeMy WebLinkAboutTC Res 2010-03-17 (2)RESOLUTION NO. 16-2010
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON ADOPTING A POLICY REGARDING
THE ISSUANCE OF ENCROACHMENT PERMITS
PURSUANT TO TITLE V. CHAPTER 19 OF THE TIBURON
MUNICIPAL CODE
WHEREAS, the Town's regulations regarding encroachment permits for work
proposed in Town streets, street right-of-ways and other Town interests in real property
(including easements) are set forth in Title V, Chapter 19 of the Tiburon Municipal Code; and
WHEREAS, said Chapter 19 establishes definitions and procedures for the
review, issuance, conditioning and revocation of encroachment permits but does not set forth
policy direction for the benefit of Town decision-makers as to the appropriateness of various
requests for encroachment into said areas; and
WHEREAS, the Town Council finds that the Town has not, in the past,
adequately restricted the granting of such encroachments, and that as a result, Town property has
on occasion been converted to private use and Town-owned access has been unduly limited or
eliminated, all for private benefit and/or exclusive use of one or a limited number of individuals
rather than for the general public; and
WHEREAS, although Town encroachment permits are conditioned to require the
permit holder to remove encroachments at the Town's reasonable request, the substantial and
costly nature of some improvements, among other factors, inhibits actual removal and
compliance with Town direction to that effect; and
WHEREAS, the Town Council intends to continue granting encroachment
permits to the extent necessary and appropriate to promote the public safety and welfare and, on a
short term basis, accommodate short term work that cannot feasibly be accomplished without a
temporary encroachment; and
WHEREAS, the Town Council has determined that it is timely and appropriate to
adopt policy direction to further guard Town property interests against incursion by private
property owners and to clarify the Town's discretion to require the removal of encroachments;
and
WHEREAS, the Town Council has held a public meeting on this matter on March
17, 2010 and has heard and considered any public testimony and correspondence; and
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon does hereby adopt the following general policy with respect to encroachment permits
issued pursuant to Title V, Chapter 19 of the Tiburon Municipal Code.
Tiburon Town Council Resolution No. 16-2010 0311712010
A. Definitions
For the purposes of this Resolution, the meaning of words and phrases, including
without limitation, Town streets, street right-of-ways, Town-owned land and other Town
interests in real property (including easements), shall be as set forth or used in Title V,
Chapter 19, of the Tiburon Municipal Code.
B. General Provisions
The Town shall have discretion to revoke any encroachment permit at any time. No
encroachment permit shall grant any private property owner a permanent right to perform work in
or use the area subject to the encroachment permit. The Town may, in its discretion, grant an
encroachment permit allowing access from private property to the public right-of-way, provided
that the Town shall condition any such encroachment permit as it deems appropriate to manage
or enhance the public right-of-way. The Town is not responsible for the cost of altering,
modifying, or removing any such encroachment if it deems such alteration, modification, or
removal is warranted.
C. Allowable Purposes
For the following purposes, and only if the Town finds that the encroachment will serve public
safety or welfare, the Town may issue encroachment permits for work within, upon, or beneath
Town streets, street right-of-ways, and other Town interests in real property (including
easements). Said permits shall contain conditions that shall include, without limitation,
revocation at the Town's discretion.
1. To allow access to private property for entry/egress purposes.
2. To allow applicants to install, build or replace sidewalks, curbs and gutters and curb cuts.
3. To allow applicants to install, maintain, or replace landscaping, within the parameters of
this policy. -
4. To allow applicants to maintain, repair or replace previously lawfully-installed
encroachments.
5. To accommodate required parking where the Town finds that (a) the applicant cannot
feasibly locate such parking on private property; or (b) the public safety or welfare is
better served by allowing such parking to encroach.
6. To allow applicants the opportunity to secure approval for existing encroachments that
the applicant cannot prove were lawfully installed and that are consistent with this policy
and Title V, Chapter 19 of the Tiburon Municipal Code.
7. To allow applicants to drain their properties of storm water in a controlled fashion
acceptable to the Town Engineer.
8. To allow utility companies to perform necessary work.
9. To allow Town contractors and/or service providers to perform authorized work.
10. To allow community groups to perform authorized work, either using volunteers or
contractors.
Tiburon Town Council Resolution No. 16-2010 0311712010 2
11. To allow applicants to position a debris box or portable moving box for temporary
construction, storage or moving purposes, where such placement will not unreasonably
impede traffic circulation and pedestrian safety or otherwise be detrimental to public
safety or welfare.
12. To allow a limited and controlled amount of equipment and material associated with
permitted building construction activity.
13. To allow permitted special events with civic purpose and benefit.
14. To allow applicants temporary relief from unusually severe topographic or other physical
circumstances that create practical hardships to the creation of proper access to or
improvement of private property in the absence of the encroachment.
15. To allow control of invasive or fire-prone plants, for fire prevention or other purposes of
public benefit.
D. Impermissible Purposes
Encroachment permits for work within, upon, or beneath Town streets, street right-of-ways, and
other Town interests in real property (including easements) should not be issued in the following
instances:
1. Encroachments for the purpose of, or having the practical effect of, privatizing the
affected area for the exclusive use or benefit of one or a limited number of individual
owners in lieu of the general public.
2. Encroachments that would block, impede, or discourage public use or access over an area
determined by the Town Engineer to be appropriate and suitable for public use or access
either at present or in the foreseeable future.
3. Encroachments that in the judgment of the Town Engineer are not necessary or
appropriate to serve one of the allowable purposes listed in Section C above.
E. Duration.
Encroachment permits shall contain conditions of approval to restrict the duration of the
encroachment to a reasonable time necessary to accomplish the purpose thereof.
1. Except where the Town grants the permit pursuant to Sections C.1, C.2, C.3, C.4, C.5,
C.6 or C.7, above, or as provided in E.2, the Town will allow only temporary
encroachments.
2. Notwithstanding Section E.1, the Town shall have discretion to issue a permit for a long-
term encroachment if it finds that the encroachment is necessary for public safety reasons
or that the encroaching improvement will have a long-term public benefit commensurate
with the private benefit to the permit holder.
3. The conditions of approval for any permit for a long-term encroachment shall include,
without limitation, the following conditions of approval:
a. By acceptance of the permit and construction of the improvement or performance of
the work, the permittee agrees to indemnify, defend and hold the Town harmless from
Tiburon Town Council Resolution No. 16-2010 0311712010
any claims, losses, litigation or other liabilities that may arise from the permittee's
performance of the work or construction and maintenance of said improvement.
b. The permittee shall execute a Memorandum of Encroachment, record it in the County
of Marin's Recorder's Office and provide the Town Engineer with a conformed copy
of the recorded Memorandum. If the subject project requires a building permit, the
permittee must record the executed Memorandum of Encroachment before the Town
issues said building permit. For all other projects, permittee must record the executed
Memorandum of Encroachment before the permittee enters onto the Town's property
to perform work pursuant to the encroachment permit.
c. The Memorandum of Encroachment shall describe the improvement that is subject to
the encroachment permit and shall contain the following advisory notice:
The encroachment permit does not grant the owner of the
encroaching improvement any permanent rights. The Town
has discretion to revoke the encroachment permit at any time.
In the event that the Town revokes the encroachment permit,
the owner of the encroaching improvement must promptly
remove the encroachment. The Town is not responsible for the
cost of altering, modifying, or removing any such
encroachment.
E. Fee Waivers
The Town Council hereby authorizes the Town Engineer to waive application and/or processing
fees, in whole or in part, for certain encroachment permits in the circumstances listed below.
1. Where the applicant is a non-profit corporation or one or more citizens seeking
permission to perform work for the benefit of the public, the Town Engineer may
waive fees to an extent commensurate with the public benefit.
2. Where the applicant is-a contractor performing work for the Town, the Town
Engineer may waive the fee in its entirety.
3. When permits are deemed, at the discretion of the Town Engineer, in support of
the public benefit.
Tiburon Town Council Resolution No. 16-2010 0311712010 4
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon on March 17, 2010, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
Collins, Fraser, Fredericks & O'Donnell
None
Slavitz
CHARD COLLINS, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Tiburon Town Council Resolution No. 16-2010 0311712010