STREETS, SIDEWALKS AND PUBLIC PLACES

Chapter 12.16
ENCROACHMENTS

12.16.010	Definitions.
12.16.020	Permit.
12.16.030	Commencement of work without permit.
12.16.040	Authority to grant.
12.16.050	Residential encroachments.
12.16.060	Commercial encroachments.
12.16.070	Findings necessary to grant an encroachment.
12.16.080	Requirements and conditions of approval
12.16.090	Commercial outdoor dining.
12.16.100	Commercial Outdoor Dining -- Exception for Pier Avenue.
12.16.110	Application procedure.
12.16.120	Maintenance of encroachment.
12.16.130	Nonconformance of encroachment.
12.16.150	Revocation.
12.16.160	Encroachment violation.
12.16.170	Violation--Misdemeanor.
12.16.180	Violations of encroachment regulations—additional remedies.
12.16.190	Fees.

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12.16. 010 Definitions.

As used in this chapter:

"Encroachments" are structures,objects, uses or landscaping owned by a private property owner and located on or over adjoining public right-of-way for the property owner's private use and enjoyment. Permissible encroachments are those which place a minimal burden on the right-of-way, are easily removable and do not materially alter the character of the right-of-way as open space, and include landscaping, fencing, movable personal property (such as furniture and planters), patios, decks, landscape irrigation and lighting systems and similar structures and objects, in accordance with the standards, conditions and requirements of this Chapter. No building or structural element of a building (including walls, roofs, structural supports, balconies, stairwells, and the like) shall be permitted to encroach on or over a public right-of-way. "Encroachment" means and includes any obstruction, tower, pole, pole line, pipe, wire, cable, conduit, wall, fence, balcony, deck, stand or building, or any structure or object of any kind or character which is placed in, along, under, over or across public right-of-way.

"Pedestrian walk street" is defined by council under a separate resolution.

"Person" includes any individual, firm, copartnership, joint venture, association, corporation, estate, trust, business trust, any district, any city, any county including this county, and all departments and bureaus thereof except the city of Hermosa Beach.

Shall and May. "Shall" is mandatory; "may" is permissive.

"Structure" is as defined by the Uniform Building Code as that which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner. (Ord. No. 96-1161, § 1; 07/09/96) (Prior code § 29-31)

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12.16. 020 Permit.

An encroachment permit is required for any landscaping in excess of forty-two inches (42") in height, and any structure, object or use which is permitted by this Chapter to encroach on or over a public right-of-way. The encroachment permit shall be in a form provided by the Public Works Director and approved by the City Attorney. Issuance of an encroachment permit is within the City's discretion and constitutes a privilege granted by the City as a convenience to an adjoining property owner and not a right. An encroachment permit is not a substitute for a building permit or a construction permit when either is otherwise required by this Code. (Ord. No. 96-1161, § 2; 07/09/96) (Prior code § 29-32)

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12.16. 030 Commencement of work without permit.

Any person who shall commence any work, for which a permit is required by this chapter, without first having obtained a permit shall stop work and apply for such permit. The fee for the permit shall be doubled. In addition, failure to stop constitutes a misdemeanor and is defined in this chapter. (Prior code § 29-33)

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12.16. 040 Authority to grant.

A permit to encroach into a planned or existing public right-of-way may be granted upon such terms and conditions as are deemed necessary. The authority to grant or deny such permit application is vested in the director of public works, unless otherwise specified. Approval of encroachments which deviate from the established guidelines can only be granted with city council approval in an appeal process. If the applicant for an encroachment permit is an officer or employee of the City, only the City Council is authorized to issue the permit. (Prior code § 29-34) (Ord. No. 96-1161, § 3; 07/09/96)

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12.16. 050 Residential encroachments.

Approvals of all residential encroachments is vested with the director of public works and the rules and guidelines are set forth herein. Only the owner of record of real property is eligible to apply for and receive an encroachment permit for encroachments from adjacent residential property. (Ord. No. 96-1161, § 4; 07/09/96) (Prior code § 29-35

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12.16. 060 Commercial encroachments.

Approvals of all commercial encroachments shall be done in conjunction with the conditional use permit process, shall be reviewed by the staff environmental review committee and the rules and guidelines are set forth herein. Only the owner of record of real property is eligible to apply for and receive an encroachment permit for encroachments from adjacent commercial property, except that commercial outdoor dining encroachment permits may be issued to a lessee in connection with approval of a conditional use permit pursuant to Section 12.16.090. (Ord. 96-1161, § 5; 07/09/1996) (Prior code § 29-36)

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12.16. 070 Findings necessary to grant an encroachment.

The director of public works, in granting approval of an encroachment permit application shall make a finding that the plans and application meet the guidelines and conditions of approval as set forth in Section 12.16.080, and the granting of such encroachment will not adversely affect the general plan of the city. Approval of encroachments which deviate from these established criteria can only be granted with city council approval in an appeal process. (Prior code § 29-37)

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12.16. 080 Requirements and conditions of approval

Permitted encroachments shall comply with the following requirements and conditions:

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(1) General (applicable to all encroachments):

1. All construction shall conform to the requirements of the Uniform Building Code, the Municipal Code, and the Department of Public Works Standards and Policies.
2. Landscaping encroachments within the public right-of-way shall not exceed the building height limitation of the zone in which it is planted.
3. In the case of an encroachment occupying the public right-of-way enclosed by the extension of the two side property lines between the front property line and the existing or future sidewalk, a minimum of one-third of the encroachment area shall be landscaped in accordance with a landscape plan to be approved by the Public Works Department in conjunction with the encroachment permit application.
4. Height of any encroachment shall be measured from the natural grade unless otherwise specifically approved by the Director of Public Works by virtue of unusual topography or other extraordinary physical circumstances.
5. Encroachments shall not obstruct access to underground utilities nor significantly impair scenic vistas from neighboring properties.
6. Public right-of-way, through receipt of an encroachment permit, shall not satisfy required open space or any conditions of building or zoning that are normally provided on-site, except for providing required residential guest parking, pursuant to Sections 1157 (c) and 1159 (b) of the Zoning Ordinance, and for providing required parking approved by a parking plan granted pursuant to Section 1169 of the Zoning Ordinance.
7. An encroachment shall not provide structural support for any structure located on private property.

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(2) Pedestrian walk street (applicable only to those streets):

1. Fences shall not exceed a maximum height of forty-two inches (42").
2. Fences are allowed at a height of forty-two inches (42) maximum on top of retaining walls of masonry, block, brick or concrete. The fence height is measured from the natural grade. A retaining wall on public right-of-way shall not support any structure on private property.
3. Decks may be permitted to a maximum height of twelve inches (12") height above the existing natural grade and if they do not project into the public right-of-way more than half the distance between the property line and edge of existing or future sidewalk. Deck railings are permitted provided that they are of open construction and that deck and railing do not exceed a maximum height of forty-two inches (42").

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(3) Vehicular street (applicable only to those streets):

1. Fences shall not exceed a maximum height of forty-two inches (42").
2. Encroachments shall not be placed over an existing or planned sidewalk.
3. Encroachment permits for new curb cuts for ingress/egress on Pier Avenue between Valley Drive and Hermosa Avenue shall not be granted.

(Ord. 09-1300 § 6, May 2009; Ord. 96-1161, § 6; 07/09/1996) (Ord. 95-1144 § 1, 1995; Ord. 93-1084 § 1, 1993; prior code § 29-38)

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12.16. 090 Commercial outdoor dining.

A conditional use permit is required for use of public right-of-way for commercial outdoor dining subject to the following conditions:

1. Provides for and maintains an area for passage of pedestrian traffic;
2. Does not inconvenience pedestrian traffic;
3. Conforms to all applicable health codes and this code;
4. Applicant to pay all appropriate fees, including but not limited to rental fees;
5. Applicant to maintain and keep in force at all times a policy of liability insurance, naming the city as an additional insured in the amount of one million dollars ($1,000,000.00); and
6. To pay restorative costs, if applicable, in an amount to be determined by the director of public works, plus administrative costs. (Prior code § 29-39)

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12.16. 100 Commercial Outdoor Dining -- Exception for Pier Avenue.

Notwithstanding the provisions of Section 12.16.060 and 12.16.090, a conditional use permit shall not be required for commercial outdoor dining on Pier Avenue between Pacific Coast Highway and the Strand, excluding Specific Plan Area No. 11 (Upper Pier Avenue) wherein outdoor dining on the public right of way is not allowed, as long as the conditions set forth in Section 12.16.090 are satisfied and the outdoor dining facility complies with design standards adopted by resolution of the City Council.
(See Resolutions 05-6417 with Exhibit A and 05-6418 with Exhibit A) of the City Council. (Ord. 09-1300 § 5, May 2009; Ord. 97-1172 § 1, 06/24/97)

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12.16. 110 Application procedure.

1. Filing. An application for an encroachment into a planned or existing public right-of-way shall be filed by the owner of the property for which the encroachment is sought or by an authorized representative of the owner. Such application shall be made to the director of public works and shall be on forms furnished by the department of public works.
2. Filing Fee. A uniform fee, established by council under separate resolution, shall be required upon the filing and investigation of the application for encroachment or transfer of an encroachment permit to defray administrative costs incurred by the city in processing the application. Such fee shall be nonrefundable and shall include the costs of recordation of the encroachment, if granted.
3. Investigation. An investigation shall be conducted by all departments of the city having an interest in, or jurisdiction over, the matter. Upon the receipt of an application pursuant to the provisions of this chapter, the director of public works shall transmit the application to all affected departments for written reports of findings and recommendations. All such written reports shall be submitted to the director of public works for consideration when making a decision on the application.
4. Director of Public Works Findings and Decision. The director of public works shall make a written decision. Such decision shall recite the findings upon which the director bases his decision. If the decision is favorable to the granting of the encroachment, it shall set forth the conditions to be imposed. The conditions set forth in Sections 12.16.080 through 12.16.100 shall be attached to every permit approval.
5. Appeal. The decision of the director of public works shall be final ten days after mailing a copy of his decision to the applicant. Within said ten-day period, the applicant may appeal the decision of the director of public works to the council to review; a denial of the application or any conditions attached to an approval other than those set forth in Section 12.16.080. Upon consideration of such appeal, the council may approve, modify, or disapprove the application for encroachment. The council may add, delete or modify the conditions attached to the encroachment permit. The action of the council shall be final.
6. Time Limit for Development. Any encroachment granted pursuant to the provisions of this chapter shall be developed and utilized within a period not to exceed six months from and after the date of the granting of such encroachment, and, if not so developed and utilized, such encroachment automatically shall become null and void at the expiration of such six-month period.
7. Extension of Time. The permittee may apply in writing for one extension of time, not to exceed six months, within which to develop and use such encroachment. The director of public works, after due consideration, shall either grant or deny the extension of time for such development and use. (Prior code § 29-41)

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12.16. 120 Maintenance of encroachment.

It shall be the responsibility of the adjacent property owner to maintain the encroachment in a condition satisfactory to the city. (Prior code § 29-42)

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12.16. 130 Nonconformance of encroachment.

No building permit shall be issued for construction of a new residential dwelling structure or addition thereto, exceeding four hundred (400) square feet in floor area, or for the remodel of an existing residential dwelling structure valued at more than fifty percent (50%) of the replacement cost of the existing structure, until the adjacent City right-of-way is determined to be in accordance with City standards. (Ord. 02-1219 §3, May 2002)

Encroachments in existence on May 15, 1996, which do not conform to the standards set forth in Section 29-38 may remain as they exist as of May 15, 1996, whether or not a valid encroachment permit is obtained from the City as long as the encroachment is not expanded, increased or intensified, until the earlier of either of the following events:

1. The City revokes the encroachment permit or requires removal of the encroachment for any reason, including construction of public improvements, which requires access to the encroachment area;
2. The primary structure on the property benefiting from the encroachment is remodeled or reconstructed at a cost which exceeds fifty percent (50%) of the replacement cost of the existing structure.

In either of the above events, the encroachment shall be removed and any replacement encroachment shall be subject to receipt of an encroachment permit and shall conform to the requirements of Section 29-38. (Ord. 96-1161, § 9; 07/09/1996)

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12.16. 150 Revocation.

The director of public works or the council may revoke any encroachment permit for noncompliance with the conditions set forth in granting such encroachment or if it is determined that such permit is not in the public interest. A written notice shall be mailed to the permittee of such revocation. Within ten days of mailing of such notice of revocation to the permittee, a written appeal of such action may be filed. Any such appeal shall be reviewed by the council, and its determination of the matter shall be final. (Prior code § 29-45)

An encroachment permit shall expire and be of no further force and effect upon the removal of the primary building on the property. (Ord. 02-1219 §4, May 2002)

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12.16. 160 Encroachment violation.

It is unlawful for any person to construct or maintain, or cause to be constructed or maintained, any encroachment in violation of the provisions of this chapter. (Prior code § 29-46)

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12.16. 170 Violation--Misdemeanor.

Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined in an amount not exceeding five hundred dollars ($500.00) or be imprisoned in the county jail for a period not exceeding six months, or by both such fine and imprisonment. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. (Prior code § 29-47)

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12.16. 180 Violations of encroachment regulations—additional remedies.

As an additional remedy, the construction or maintenance of any encroachment in violation of any provision of this chapter shall be deemed, and is declared to be, a public nuisance and may be subject to abatement summarily by a restraining order or injunction issued by a court of competent jurisdiction. In addition, violations of the provisions of this chapter are subject to the administrative penalty provisions of chapter 1.10. (Ord 07-1281, Sept. 2007)

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12.16. 190 Fees.

All fees applicable pursuant to this chapter shall be set by resolution of the city council. (Prior code § 29-49)

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