HomeMy WebLinkAbout3057 Amending PTMC 12.04.070 and adding new section 12.04.075 to add provisions for abutting owners Ordinance 3057—Residential Street Use
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ORDINANCE NO. 3057
AN ORDINANCE OF THE CITY OF PORT TOWNSEND AMENDING
THE PORT TOWNSEND MUNICIPAL CODE SECTION 12.04.070 AND
ADDING A NEW SECTION 12.04.075 TO ADD PROVISIONS FOR
ABUTTING OWNERS TO PERFORM MINOR LANDSCAPING IN THE
RIGHT OF WAY WITHOUT A PERMIT,AND FOR ABUTTING
OWNERS TO PLANT OR REMOVE TREES IN THE RIGHT OF WAY
WITH A PERMIT, AND REGULATING OTHER USES
Recitals:
A. The City Council recently undertook a review of code provisions and policies relating to
private uses in the City rights of way.
B. Following review and recommendation by the Community Development and
Land Use Committee (CD/LU) of the City Council, the City Council adopted
Ordinance 3017 (August 3, 2009), regulating and allowing certain uses on streets
and sidewalks in the commercial, historic commercial, mixed use and
manufacturing districts. Prior to the Ordinance, the City did not have an adopted
regulatory scheme to allow for uses to occur within opened and undeveloped
public rights-of-way(ROW) on a short term or annual basis. The Ordinance
establishes a regulatory framework to allow for both short-term (for example,
house moves, temporary closures) and annual uses (for example, vending, and
sidewalk cafes)in commercial districts of the City.
C. At meetings on October 8, 2009,November 19, 2009, December 10, 2009, and
January 20, 2010, the CD/LU Committee also reviewed potential private use of
rights of way in residential districts. It recommended standards for minor
landscaping by abutting owners to occur in the right of way without requirement
to obtain a permit, and standards for trees to be planted in or removed from the
right of way by abutting owners after first obtaining a permit.
D. The City Council considered the recommendation of the CD/LU Committee at
meetings on February 1, 2010, September 27, 2010, February 14, 2011, February
21, 2012 and March 5, 2012.
E. Prior to this ordinance, City code (PTMC 12.04.070) allowed for minor
landscaping to occur in the right of way, but did not specify what constitutes
minor landscaping, and there were no standards for planting or removing trees in
the right of way by abutting owners. The Council in this Ordinance follows the
recommendation of the Committee. Providing standards for allowed minor
landscaping gives greater clarity and certainty for both homeowners and City staff
in applying the code provision allowing minor landscaping.
Ordinance 3057—Residential Street Use
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F. The CD/LU Committee also reviewed whether City code should be amended to
allow"community gardens" to be located in the rights of way. The Committee
recommended that"community gardens"be located on City-owned (or leased)
property, for example, the Mountain View site under a program to be developed.
The Committee noted that nothing prevents an owner from developing a garden
on the abutting right of way, or allowing others to use the area for a garden with
the owner's permission, within the minor landscaping standards established in this
Ordinance,
G. The CD/LU Committee also reviewed whether City code should be amended to allow
structures (sheds, garages, storage containers, propane tanks, fences, etc.) to be located in
the right of way. At the time of the review, City code did not allow any such private
structures to be located in the right of way in residential zoning districts. PTMC
17.68.030 (adopted by Ordinance 2571 in 1997) explicitly prohibits fences in the rights of
way, unless a permit is obtained pursuant to Chapter 12.10 PTMC. (However, Chapter
12.10 of the PTMC was repealed in 1997, meaning, there has not been a process for
issuing any permits for fences in the right of way since 1997). Several citizens had
recently requested the City allow for fences to be located in the residential rights of way.
H. The Council appreciates that over the last hundred years or more many such uses,
particularly fences, have been located in the public rights of way. These may have been
located in rights of way because others had done so, or because of uncertainty over
property lines from lack of survey, or because the City allowed and/or did not enforce any
restriction or prohibition against the location. Some uses may have occurred with explicit
City permission, although records for such uses may or may not currently exist.
I. The CD/LU Committee recommended that City code not be changed to allow any private
structures to be located in the right of way in residential zoning, and the Council accepts
the recommendation of the Committee.
J. The Committee and Council base the conclusion not to allow any such private structures
to be located in the right of way in residential zoning districts on adopted City policies
that recognize that rights of way serve many community goals beyond transportation.
Except for preserving and providing vegetation and trees in the right of way(which could
include privately planted vegetation), the policies to do not recognize private uses of the
rights of way. Allowing structures (including fences) in the right of way in effect
privatizes portions of the public rights of way and turns public space into private space.
K. The Transportation Element of the Comprehensive Plan provides for"preserving existing
vegetation" and "providing street trees" in the street system. Goal 3, Policy 3.13. Policy
3.14 "encourage[s] the establishment of planting strips with adequate width for
appropriate vegetation, including street trees."
Ordinance 3057—Residential Street Use
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L. The Comprehensive Plan provides that certain rights of way should be left unimproved.
"The street networks should be designed to minimize opening of new streets, to preserve
open spaces and ESAs (environmental sensitive areas], as well as enhancing pedestrian
and other modes of nonmotorized travel." Transportation Element, Unimproved Street
Rights of Way, at VI-5.
M. The Nonmotorized Transportation goals of the Comprehensive Plan provide for using
developed rights of way for the safe and convenient environment for walking and
bicycling. Transportation Element, Goal 5, Policy 5.2, at VI-16.
N. The Rights-of-Way Management section of the Comprehensive Plan states a goal "to
preserve long-term options for the future public use of public rights of way." Goal 9.
Policy 9.2 provides that certain rights of way should be set aside for"greenways, regional
stormwater drainage facilities, and pedestrian access on trails." Transportation Element,
Goal 9, at VI-24.
O. The Engineering Design Standards, adopted by the City Council in Ordinance 2579
(adopted in 1997)), states "the currently platted street rights of way should be used not
only for motor vehicle travel, but should also be preserved and utilized for a variety of
other public uses including:
• Non-motorized pathways and connections
• Greenways and open space connections
• Neighborhood stormwater retention facilities
• Preserving environmentally sensitive areas
• Wildlife corridors
• Traffic calming and diversion
• Utility lines."
Engineering Design Standards, Chapter 6 Transportation, Street Openings and Uses of
Existing Public Rights of Way, at 6-5.
P. The above policies and standards recognize a clear and strong policy basis for preserving
rights of way for a variety of public (not private) uses.
Q. Allowing minor landscaping and the planting of trees by abutting owners in the right of
way within defined limits does not undermine these policies. It is in fact consistent with
and furthers adopted policies (including, Goal 3, Transportation Element of the
Comprehensive Plan, that encourages the preservation of existing vegetation and
providing street trees, and Chapter 6 of the Engineering Design Standards stating that one
public use of rights of way is providing greenways).
R. Where minor landscaping and the planting of trees by abutting owners in the right of way
enhance public benefits and provide public amenities (including, aesthetics and
greenways), structures in the right of way that serve only the private use of the abutting
owner privatize the use of the right of way and do not provide a public benefit or amenity.
Ordinance 3057—Residential Street Use
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S. The City Council determines it appropriate to amend the Port Townsend Municipal Code
to provide standards for minor landscaping by abutting owners to occur in the right of
way without requirement to obtain a permit, and standards for other uses, and standards
for trees to be planted in or removed from the right of way by abutting owners after first
obtaining a permit.
T. The City Council previously by Resolution 10-002 (adopted February 1, 2010) declared
priorities regarding code enforcement for unpermitted uses in the rights of way.
"A factor higher on the list would have a higher priority than one lower on the list.
More than one factor may apply to any situation. These are guidelines only and
would be varied as circumstances require. Established uses do not refer to parking of
vehicles, which are governed by parking codes (not street use codes).
1. Illegal uses or structures that present a safety issue or hazard.
2. New or recent illegal uses or structures would have a higher priority than older
uses or structures.
3. Uses that were established after April 21, 1997 would have a higher priority than
uses that were established before that date.
4. Structures or uses that interfere with views from street ends would have a higher
priority than those that do not.
5. Structures (other than fences) would have a higher priority than fences.
6. Fences would have a higher priority than excessive landscaping.
7. More egregious violations would have a higher priority than less egregious or de
minimus violations."
The Resolution further provided:
"For uses or structures that were established before April 21, 1997 [the date the City
adopted regulations implementing the City's comprehensive plan adopted pursuant to
the Growth Management Act], the Council provides direction that code enforcement
would not be prioritized for these uses, so long as the use or structure did not present
a safety hazard, was removed if it interfered with City improvements, did not interfere
with views from street ends, was not intensified, and was removed if the property
redeveloped. Such structures could receive normal maintenance and repair, but could
not be re-constructed."
Council affirms Resolution 10-002, and further declares that it is not the intent of this
Ordinance that the Public Works Department seek out and/or abate long-standing
conditions or situations that violate the standards in this section, so long as the use or
structure did not present a safety hazard, was removed if it interfered with City
improvements, did not interfere with views from street ends, was not intensified, and was
removed if the property redeveloped. Subject to these limitations, long-standing
landscaping or trees in the right of way would be allowed to remain.
Ordinance 3057—Residential Street Use
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NOW, THEREFORE, the City Council of the City of Port Townsend ordains as
follows:
SECTION 1. Section 12.04.070 of the Port Townsend Municipal Code is amended to
read as set forth on Exhibit A (text in strikeout is deleted, text in underline is added), and new
Section 12.04.075 is added to Chapter 12.04 of the Port Townsend Municipal Code to read as
shown in Exhibit B, attached hereto and incorporated by reference.
See Exhibits A and B
This ordinance amends Chapter 12.04 of the PTMC. Violations, enforcement and penalties and
other procedures applicable to Chapter 12.04 apply to the provisions of this ordinance as if set
forth herein.
SECTION 2. Severability. If any provision of this ordinance or its application to any
person or circumstance is held invalid, the remainder of the ordinance, or the application of the
provision to other persons or circumstances, is not affected.
This ordinance shall take effect and be in force five days after the date of its publication
in the manner provided by law.
Adopted by the City Council of the City of Port Townsend, Washington, at a regular
meeting thereof, held this 5th day of March 2012
David ding, Mayor
Attest., Approved as to Form:
Pamela Kolac y, MMC City Clerk,'-7
John P. Watts, City Attorney
PTMC 12.04.070(Amended)
(May 5,2011)
EXHIBIT A
12.04.070 Street development permit required - Revocation - Expiration.
A. Director Authority. The public works director is designated to administer this
title by granting or denying street development permit applications in accordance
with its provisions.
B. Prerequisite to Development. Construction of the right-of-way and
transportation improvements required by this chapter and the engineering design
standards manual are prerequisite to, and condition of, further property
development.
C. Permit Required. Unless authorized by other City regulations, NO-no person
shall clear, grade, disturb, construct, landscape, or make improvements within
any right-of-way, or open for vehicular traffic (even temporarily) any city right-of-
way, or use any right-of-way, without first obtaining a street development permit
from the public works director as provided in this chapter.
A permit shall not be required of persons performing minor landscaping work in
the right-of-way SUGh as 1and6G ipling., so long as the work meets the standards of
PTMC 12.04.075; provided, however, that no such person shall obtain any
vested rights.
1. Minor Activities Permit. A short form "street development permit-
minor activities" application may be submitted for right-of-way improvements
related to construction of minor improvements (for example, sidewalks, new
driveways, culverts, private utilities to a single house) which are associated with
opened streets. If the director determines that for environmental, safety or other
reasons a minor activities permit is inappropriate, a street development permit
shall be required. Specific activities covered by the minor activities permit shall
be as defined in the engineering design standards manual.
D. Revocation. The permit granted may be revoked by the public works
director without prior notice for failure to comply with any provision of the Port
Townsend Municipal Code or violation of any condition imposed on the permit.
E. Expiration.
1. All street development permits not tied to a building permit shall expire
unless the work is completed within 12 months after issuance of the permit
unless earlier revoked; provided, however, that a written request for an extension
may be made prior to expiration upon a showing to the public works director that
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PTMC 12.04.070(Amended)
(May 5,2011)
justifiable delays or unanticipated events beyond the control of the applicant have
or will preclude timely commencement or completion of the work. Any extension
shall include a condition that the work will be completed within a reasonable time,
not to exceed one year, as specifically set forth in the grant of the extension.
Only one extension may be granted under this section.
2. All street development permits tied to a building permit shall remain
valid so long as the building permit remains active with the building department,
as shown in the building department files. In the event the building permit
becomes inactive as further set forth in the International Building Code and
PTMC Title 16, the street development permit shall automatically expire.
3. Notwithstanding subsections (E)(1) and (2) of this section, the
construction of infrastructure improvements required for subdivisions under
PTMC Title 18 (Land Division) may, at the discretion of the director, be phased
during the statutory five-year period for final plat approval. Where the city
approves a final plat prior to completion of all rights-of-way or street
improvements, the construction shall occur in accordance with all requirements
of any approved improvement method report. In such case the street
development permit shall expire unless the work is completed in accordance with
the conditions of subdivision approval, the requirements of the approved
improvement method report, and/or as set forth in the street development permit
itself.
F. Emergency Exception. In the case of an emergency occurring outside
regular office hours, whenever an immediate excavation is necessary for the
protection of life or property, the public works director may grant permission to
make the necessary excavation upon the condition that an application for a
permit be made under this chapter on or before noon of the next following
business day.
G. City Exemptions. All maintenance work performed by or under the direction
of the public works department is exempt from the permit requirements of this
chapter. In the case of construction work performed by or under the direction of
the public works department, preparation of drawings by the director or signing of
a public construction contract shall constitute compliance with the permit
requirements of this section. (Ord. 2867 § 2, 2004; Ord. 2578 § 1, 1997).
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Private Use of the ROW
EXHIBIT B
PTMC 12.04.075 Privates Uses in the Right of Way [NEW]
The City of Port Townsend encourages minor landscaping and planting of trees along
public streets and in unopened rights of way. A property owner may perform minor
landscaping in the right of way abutting the owner's property, without need for a permit,
subject to and so long as the landscaping conforms to and meets the requirements,
standards and conditions of this section. A property owner may plant trees along public
streets and in unopened rights of way, upon obtaining a permit, subject to and so long as
the planting conforms to and meets the requirements, standards and conditions of this
section.
The City prohibits, with limited exceptions provided for in this section, private structures
in the rights of way(including, but not limited to, fences, sheds, garages, storage
containers, propane tanks, wood piles), whether on a temporary or permanent basis.
1. Structures in the Right of Way.
a. Unless authorized by other City regulations (for example, special use permit,
temporary fence), it is prohibited to locate private structures in the rights of way
(including, but not limited to, fences, sheds, garages, storage containers,propane
tanks, wood piles, private no parking signs, etc.), whether on a temporary or
permanent basis.
Exception: Mail boxes or house numbering are allowed uses of the right of way,
and do not require a permit. They must be located as determined appropriate by
the Public Works Director based on due regard for safety and parking.
b. If a structure appears to have been inadvertently located in the right of way many
years ago, the City Manager, in consultation with the Public Works Director, is
authorized to enter into a temporary use agreement to allow the structure to
remain until the property re-develops, and subject to such conditions as the City
Manager determines are appropriate.
"Until the property re-develops"means at a minimum where costs of
improvements exceed 50% of the assessed value of the structures on the property
over a five year period.
For example, a corner of a garage, built decades ago, encroaches into the right of
way by a foot(apparently as a result of an inaccurate survey or having been
located without survey). The City Manager may enter into a use agreement to
allow the garage to remain, until such time at the property re-develops. Nothing
would prevent the garage from being maintained. If the cost of new development
or additions on the property exceed 50% of the assessed value of the structures on
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Private Use of the ROW
the property over a five year period, the garage encroachment would be required
to be removed.
This authority is limited to substantial structures (garages, buildings), and does
not extend to allowing use agreements for fences, propane tanks, woodpiles,
sheds, and the like.
2. Temporary Fences in the Right of Way.
a. The Public Works Director is authorized to permit temporary fencing in the right
of way.
b. Temporary fencing would be for the purpose of protecting plantings in the right of
way, for example, against animals (dogs, deer), or pursuant to a construction
permit. It is not for the purpose of providing privacy.
c. Any temporary fencing must meet the following requirements and standards:
1) Temporary fencing requires a permit issued by the Public Works
Department.
2) Temporary fencing shall not interfere with parking or sight lines, and shall
not significantly interfere with pedestrian access.
3) Temporary fencing cannot use permanent features, for example, posts set
in concrete.
4) Temporary fencing is limited in duration. The Public Works Director is
directed to set terms and conditions to ensure that fencing is temporary.
3 Minor Landscaping in the Right of Way—No Permit Required.
The graphic at the end of this section entitled "residential street use graphic" illustrates
some of the features of allowed "minor landscaping" in the right of way.
a. No Permit for Minor Landscaping. Minor landscaping is allowed in the right of
way immediately adjacent to an owner's property, without a permit, subject to the
requirements, standards and conditions of this section.
Landscaping may be allowed beyond that which is allowed in this section through
a departure as provided in paragraph 6 of this section. Landscaping that includes
planting a tree or trees is subject to paragraph 4 (Planting Trees in the Right of
Way—Permit Required) and requires a no-fee permit.
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Private Use of the ROW
b. Minor landscaping Minor landscaping is landscaping that meets the following
standards:
1) Does not interfere with street-side parking or pedestrian traffic within 8 feet of
the edge of any street. In this area, only grass or similar ground cover is
appropriate.
2) Does not interfere with sight lines at intersections, or otherwise present a
hazard.
3) Softens the streetscape and beautifies the planting strip or area between the
street and property line (or sidewalk or curb and property line).
4) Generally consists of low plantings, and does not serve as a screen to prevent
passersby from viewing structures on private property. Plantings or features
that do not meet this standard would have the effect of privatizing the public
space. See graphic at end of section for illustration. (Owners who desire
privacy would erect fencing or plant landscaping on private property and not
in the right of way.)
5) Does not consist of plantings or features that form a fence or solid hedge or
screen. Plantings and features must generally be spaced and provide an open
look. Such plantings or features that do not meet this standard would have the
effect of privatizing the public space.
6) May consist of landscape features (wood, rocks) that are consistent with these
standards.
The following descriptions are not requirements but are intended as defining landscaping
and features that would fit within the definition of"minor landscaping." It is not required
that these descriptions be adhered to in each and every instance. However, if they are
adhered to, they are a"safe harbor" so the owner knows that he or she is in compliance
with City requirements
1) Does not exceed, and is maintained not to exceed, 3 feet in height, except
within 10 feet of an intersection or a driveway, where it shall not exceed (and
is maintained not to exceed) 2' in height. Heights are measured from original
grade (and not from the addition of any material).
Exception: To allow for some variation in height, for every 25 feet of
frontage, minor landscaping may extend up to 5 feet in height for a distance
not to exceed 5 feet in width. This exception does not apply to the area within
10 feet of an intersection.
2) Does not interfere with parking next to a developed street. Landscaping shall
be located at least 8' back from the edge of the developed street to allow this
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Private Use of the ROW
area to be used for parking. The parking area may be planted with low grass
or groundcover, so long as the plantings do not interfere with parking.
3) Does not create or have the effect of creating a private enclosed area, screen,
wall or hedge. Landscaping that is at least 50% open (viewed from above and
from a cross-section) is considered not to create a private enclosed area,
screen, wall or hedge. See graphic at end of section for illustration.
4) May include minor features, such as timbers, rocks, railroad ties, subject to the
height and enclosed area limitations above.
5) Does not include trees, except as allowed by permit approved pursuant to
paragraph 4 (Planting Trees in the Right of Way—Permit Required).
6) Constructed curb. If there is a constructed curb, all landscaping is located
between the curb and the property line. The area that is within 2' of the curb
should be low grass or groundcover so as provide a clearance for car door
openings and entry to and exit from a parked vehicle.
7) Sidewalk. If there is a sidewalk (and no constructed curb), all landscaping is
located between the sidewalk and the property line. Landscaping is located at
least 2' back from the sidewalk, and should not overhang the sidewalk.
8) Planting area if there is no constructed curb or sidewalk—developed street. If
there is no constructed curb or sidewalk, then the area that may be landscaped
is between the traveled way(street) and the properly line, but not within or
affecting any established pedestrian path, and (except for low grass or
groundcover) not within 8 feet of the street (to allow for parking).
9) Planting area if there is no developed street. If there is no developed street or
other City improvements (for example, trail), minor landscaping may extend
one-half the distance between the center line of the right of way and the
property line.
10)Planting strip(the area between the back of a street curb if there is a curb, or
street if there is no curb and the front or edge of a sidewalk closest to a
street . A planting strip may be planted subject to the requirements of
paragraph 3(b) Minor Landscaping, and the following:
• The area that is within 2' of the curb should be low grass or
groundcover so as provide a clearance for car door openings and entry
to and exit from a parked vehicle.
• Closest part of any landscaping to sidewalk is 1'.
• If width of planting strip is 3' or less, then only be low grass or
groundcover is allowed (and, with Public Works Department approval,
trees).
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Private Use of the ROW
• No raised beds or planning boxes may be installed in planting strips
less than 3' wide.
• Any raised bed shall not be more than 18"in height or more than 20'
in length and shall be constructed to provide a minimum of 3' of
unimpeded clearance at each end to provide pedestrian access between
the sidewalk and curbside vehicles.
• Planting boxes cannot be made of creosote coated timbers.
• Trees may be planted with Public Works Department approval.
c. Restrictions. Minor landscaping is further subject to the following standards and
provisions:
1) Parking Area. No landscaping can interfere with parking next to a developed
street. (See above for standards.)
2) Drainage Utilities and City Improvements. No landscaping can have the
effect of adversely affecting any drainage, any public or private utility, or any
City improvements.
4 Planting Trees in the Right of Way—Permit Required.
a. Permit Required. A property owner may plant a tree or trees in the right of way
abutting the owner's property if he or she first obtains a permit from the City
Public Works Department. There is no charge for the permit. The procedure
allows the City Public Works Department to review the type of tree and the
planting location. The Public Works Director may develop and maintain standards
and policies that govern the issuance of permits, and develop requirements for
permit applications.
b Standards for Planting Trees in the Right of Way. Standards applied by the Public
Works Director for tree planting shall give due regard to the following criteria,
both at the time of planting and into the future as the tree matures:
1) Trees should not be planted in a manner that creates a safety issue or problems
with sight distances for vehicles.
2) Trees should not cause problems with utilities.
3) Trees should not cause substantial interference with views.
4) Trees should be planted with due regard to the size and shape of tree, and the
topography location and surroundings, and the need for spacing between trees.
5) No trees or other vegetation shall be allowed to overhang or prevent the free
use of the sidewalk or roadway, or street maintenance activity, except that
trees may extend over the sidewalk when kept trimmed to a height of eight
feet(8') above the sidewalk, and fourteen feet (14') above a roadway.
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Private Use of the ROW
c. City May Assume Ownership of Tree. The Public Works Director may assume
control and ownership of any tree planted pursuant to this section. This may be
done for instance if the Director determines that the trees provide a significant
public amenity or that such ownership better assures the survivability of the tree.
City ownership only occurs if the same is documented in a writing signed by the
Public Works Director.
d Removal of Trees in the Right of Way—Permit Required.
Any person who desires to prune or remove any tree or remove shrubs or other
vegetation from the right of way(except for minor landscaping) shall first obtain
a permit from the Public Works Department. There is no charge for the permit,
but the procedure allows the City Public Works Department to review and
determine the appropriateness of the pruning or removal. The Public Works
Director may develop and maintain standards and policies that govern the
issuance of permits, and develop requirements for permit applications.
The requirements of this paragraph do not apply to the removal of minor
landscaping.
e. Standards for Tree Removal or Pruning. In reviewing a request to remove or
prune a tree, the Director shall give due regard to the following criteria:
1) Whether the tree is dead, diseased, dying or dangerous.
2) Whether the tree was a volunteer, was planted by an abutting owner, or was
planted pursuant to a City program.
3) Whether the tree is of a type not suitable for the location. For example, a fir
tree growing under or into power lines may be suitable for removal.
4) Whether the tree is a suitable for the location. For example, Lombardy
poplars may not be suitable street trees.
5) Impact on surrounding properties and public spaces.
6) Whether removal improves the environment. For example, the Director may
approve thinning of trees, or(say) removal of small alders, if this improves
the environment for remaining or other species.
Conditions that do not warrant pruning or removal:
Tree is perceived as too large or tall or obstructs views, or is perceived as making
too much shade; provided, some limited pruning or removal may occur if overall
canopy and coverage of trees is not substantially affected. For example, if there
are a number of trees blocking a view, or a number of trees in the immediate
vicinity, the Director may authorize a limited removal of a few trees to allow
some view enhancement.
f. Conditions. Removal may be on such conditions as the Director deems
reasonable, and may include:
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1) Requirement that the removal be done by a licensed contractor.
2) Agreement and liability insurance insuring the City from claims which may
arise from or be related to the removal (in amount and form acceptable to the
City Attorney).
3) Removal of stumps and roots and treating the remaining roots with a suitable
compound to prevent future growth.
4) Agreement for replanting (see Replanting Requirements below)
g Replanting Requirements. The following re-planting requirements shall apply:
1) If the tree that is removed is dead, diseased, dying or dangerous: No
replacement is required.
2) If the tree is not dead, diseased, dying or dangerous: Two trees for each tree
removed. Replacement trees are subject to Public Works approval. Trees
shall be 3" diameter measured 12" above natural ground level. The Public
Works Director may waive or reduce requirements based on lack of space,
topography, location, type and size of tree removed, or whether removal
improves the environment, or other similar factors . For example, the Director
may, without requiring replanting, approve removal of small alders if this
improves the environment for remaining or other species.
3) Planting may be on such conditions as the Director deems appropriate, and
may include covenants on property that provide for maintenance, and
replanting if the tree does not survival for 5 years.
5 Conditions—Abutting Owner Responsibility and Liability.
a. The owner or abutting owner means the owner of the abutting property, and the
owner and/or any person, firm, or corporation occupying or having charge or
control of the abutting property.
b. Any use of the right of way is subject to the following:
1) The use confers no permanent right of use or ownership of the right of way.
2) All use is at the owner's risk and is subject to revocation and requirement by
the City that the owner remove it. The City normally would provide a
minimum of 30 days notice to the owner to remove any use (except in cases of
hazard or emergency or flagrant violation, when other notice or no notice may
apply). Removal may occur whether the City develops the right of way for
other purposes. The City reserves the right to remove the use, and/or notify
the owner that a failure to remove may be enforced through provisions in this
Chapter.
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PTMC 12.04.075
Private Use of the ROW
3) If City work (trail, street, utility, etc.) occurs in the areas of any use, there is
no requirement to restore the use(for example, landscaping or temporary
fencing). The City may restore the area to rough grading (not to pre-existing
condition, and is not obligated to replace lost or damaged plants or materials).
4) Whenever any injury or damage to any person or property shall be caused by
the use, the owner and/or any person, firm, or corporation occupying or
having charge or control of the abutting property shall be liable to the City for
all claims, damages or injuries, costs and disbursements which the City may
be required to pay to the person injured or damaged, which sums shall include
all costs and attorney's fees incurred by the City in defense of any action.
Provided, the abutter shall have no liability in the event that the dangerous,
defective or hazardous condition was caused, created or constructed by the
City or its employees, and the condition created by the City hasn't thereafter
been changed by any act of the abutter.
5) If the City determines a hazard exists, the City may require removal or that the
owner provide liability insurance insuring the City from claims which may
arise from or be related to the condition (in amount and form acceptable to the
City Attorney).
6) The City may record a notice to title on the owner's property notifying the
public that the use occupies City right of way and is subject to the
requirements, standards and conditions of this section.
6. Departures.
a. Authority to Grant Departures. The Public Works Director shall have the
authority, under limited circumstances, to grant a departure from the requirements
of this section.
b. Application Requests. The person(s) seeking a departure shall prepare and submit
an application to the City on forms provided by the City.
c. Public Works Director's Decision. Within 30 days of receipt of a complete
application, the Public Works Director shall make a determination to grant the
departure, grant the departure under certain delineated conditions, or to deny the
departure. For good cause, the Director may extend the time for determination.
d. Criteria. A departure may be from all or part of the requirements of this section
may require other standards to be satisfied by the applicant, and may be subject to
any conditions which the public works director deems necessary to carry out the
purpose and intent of this section in the public interest, safety and welfare. In
making a determination, the public works director may grant a departure only
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PTMC 12.04.075
Private Use of the ROW
upon specific written findings of fact and conclusions showing that the following
conditions exist:
1. The departure is reasonable based on circumstances relating to the size,
shape, topography, location or surroundings of the subject property, or to
provide it with uses permitted to other properties in the vicinity and in the
zoning district in which the subject property is located; and
2. The granting of the departure will not be materially detrimental to the public
welfare or injurious to the property or improvements in the vicinity and
zoning district in which the subject property is located.
By way of illustration, a departure might be warranted:
• To allow a retaining wall in the right of way if reasonably necessary to
prevent erosion from interfering with or damaging the right of way.
• To allow a stairway to reach an existing structure above or below the
grade of the right of way might be permitted if other nearby owners have
similar stairways to reach structures on their properties.
By way of further illustration, it is not the intent of this section that a departure
would allow an owner to landscape in the right of way beyond the minor
landscaping standards simply because a neighbor's property has extensive,
longstanding, landscaping in the right of way. If this situation justified a
departure, then no standards would apply because of the large number of such
landscaping situations that have developed in the right of way over time.
For uses or structures that were established before April 21, 1997 (the date of
adoption of the City's zoning code that implemented the comprehensive plan
adopted pursuant to requirements of the Growth Management Act), the Council
provides direction that the Public Works Director would not prioritize any code
enforcement for these uses, so long as the use or structure did not present a safety
hazard, was removed if it interfered with City improvements, did not interfere
with views from street ends, was not intensified, and was removed if the property
redeveloped. Such uses or structures could receive normal maintenance and
repair, but could not be re-constructed. Such uses or structures would be brought
into conformance with City code upon a substantial redevelopment of the
property.
It is not the intent of this section that the Public Works Department seek out
and/or abate long-standing conditions or situations that violate the standards in
this section, so long as the use or structure did not present a safety hazard, was
removed if it interfered with City improvements, did not interfere with views
from street ends, was not intensified, and was removed if the property
9
PTMC 12.04.075
Private Use of the ROW
redeveloped. Subject to these limitations, long-standing landscaping or trees in
the right of way would be allowed to remain.
e. The Public Works Director's decision shall be made by written findings and
conclusions and is a Type I administrative decision (administrative without
notice, no administrative appeal).
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