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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 Page I of 5 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 Page 2 of 5 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 Page 3 of 5 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 Page 4 of 5 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 Page 5 of 5 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 1 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). 2 PTMC 12.04.075 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 1 PTMC 12.04.075 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. 2 PTMC 12.04.075 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 3 PTMC 12.04.075 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). 4 PTMC 12.04.075 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. 5 PTMC 12.04.075 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: 6 PTMC 12.04.075 Private Use of the ROW 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. 7 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 8 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). 10