HomeMy WebLinkAboutOrdinance 1922 (Tidelands Permit)CLERK'S CERTIFICATE
I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, and Ex -Officio Clerk of the
Council of said City, do hereby certify that the foregoing:
ORDINANCE NO. 1922
AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING THE SAN
RAFAEL MUNICIPAL CODE BY AMENDING CHAPTER 11.04 THEREOF
ENTITLED `ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY" TO
ADD NEW DEFINITIONS, NEW REQUIREMENTS FOR ENCROACHMENTS
FOR EMERGENCY WORK, AND NEW CONSTRUCTION STANDARDS FOR
WORK DAMAGING PUBLIC STREETS; AND BY AMENDING CHAPTER
17.10 THEREOF ENTITLED "DUMPING, DREDGING, AND
CONSTRUCTION WITHIN TIDAL WATERWAYS" TO REVISE
PROCEDURES FOR OBTAINING A TIDELANDS PERMIT.
is a true and correct copy of an Ordinance of said City, and was introduced at a REGULAR
meeting of the City Council of the City of San Rafael, held on the 2nd day of June, 2014; a
SUMMARY of Ordinance No. 1922 was published as required by City Charter in the MARIN
INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and
adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City,
held on the 16th day of June, 2014, by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Colin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Connolly
WITNESS my hand and the official
Seal of the City of San Rafael this
19th day of June 2014
ESTHER C. BEIRNE
City Clerk
O&W
ORDINANCE NO.1922
AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING THE SAN RAFAEL MUNICIPAL
CODE BY AMENDING CHAPTER 11.04 THEREOF ENTITLED "ENCROACHMENTS IN THE
PUBLIC RIGHT-OF-WAY" TO ADD NEW DEFINITIONS, NEW REQUIREMENTS FOR
ENCROACHMENTS FOR EMERGENCY WORK, AND NEW CONSTRUCTION STANDARDS FOR
WORK DAMAGING PUBLIC STREETS; AND BY AMENDING CHAPTER 17.10 THEREOF
ENTITLED "DUMPING, DREDGING, AND CONSTRUCTION WITHIN TIDAL WATERWAYS" TO
REVISE PROCEDURES FOR OBTAINING A TIDELANDS PERMIT.
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS:
DIVISION 1.
WHEREAS, the City Council has adopted an encroachment permit ordinance in Chapter 11.04
of the Municipal Code, to protect the public health, safety and welfare by controlling the appropriate
and orderly use of public rights-of-way by private parties and other third parties, so as to minimize
potential liability of the City and inconvenience to the public from private use of the public right-of-way;
and
WHEREAS, it is important to limit excavation of recently resurfaced City streets to emergency
work only; and
WHEREAS, modifications to Chapter 11.04 of the Municipal Code are necessary to ensure
that street cuts by utilities are orderly and the City is compensated for reviewing and inspecting said
street cuts; and
WHEREAS, San Rafael tidelands, shorelines, waterways, canals, beaches, or salt marshes
are vital natural resources which can provide great benefits to present and future human generations.
They offer scenic views, open space, recreational activities such as fishing, swimming, boating,
walking, wildlife habitats, opportunities for water transportation and sites for homes and for water -
oriented resorts and industries. They fulfill an indispensable role in preserving the climate and air purity
of the city; and
WHEREAS, these benefits could be destroyed or seriously diminished by uncontrolled filling,
excavation or construction; therefore, the City has adopted Chapter 17.10 of the Municipal Code to
encourage the fullest development of these potential benefits with a minimum of physical disturbance
and to set forth the standards and procedures by which filling, excavation and construction in tideland
areas will be controlled; and
WHEREAS, modifications to Chapter 17.10 of the Municipal Code are necessary to further
streamline and improve the procedures utilized to administer Tidelands permits;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN
AS FOLLOWS:
DIVISION 2.
Section 11.04.020 of the San Rafael Municipal Code, is hereby amended to read in its entirety
as follows:
11.04.020 - Definitions.
For purposes of this chapter, certain terms are defined as follows:
A. "City" means the City of San Rafael.
B. "Director" means the Director of Public Works of the City or his or her designee.
C. "Encroach" or "encroachment" includes going upon, over or under a public right-of-
way, or using a public right-of-way or a public or private area adjacent to a public right-
of-way in such a manner as to prevent, obstruct or interfere with the intended use of
that way, or a modification of its mode of use, including but not limited to excavation or
disturbance; erection, construction, placement or maintenance of any physical
improvement thereon or thereunder; planting or maintaining any landscaping; or
placement or maintenance of any waste material, except the placement of solid waste
or recyclables in authorized receptacles for pick-up in accordance with Chapter 9.19 of
this code.
D. "Landscaping" means any tree, shrub, grass, groundcover, plant, hedge, ornamental
boulder, solid landscape feature or growing thing.
E. "Major continuing encroachment" means an encroachment by a property owner into
the public right-of-way adjacent to his or her property, which is intended and permitted
to continue for an indefinite period of time, and which serves or provides a benefit to
the city or the public generally, such as, for example, the provision of off-street parking
in an area where such parking is inadequate, the provision or protection of a public
accessway, or the promotion of the city's economic vitality or beautification. Major
continuing encroachments may include, but shall not be limited to, the following:
1. Fences or walls higher than three feet (3') above natural grade which provide
protection to a public street or pedestrian walking path;
2. Abutments for driveways and stairs where reasonably necessary to provide
access to the public right-of-way;
3. Ground water monitoring wells.
F. "Minor continuing encroachment" means an encroachment which is intended and
permitted to continue for an indefinite period of time, but which by its nature is limited in
size, scale or use so that the encroachment will have little or no impact on the public
health, safety or welfare, and shall include, but not be limited to, the following:
1. Flat or low-level improvements/landscaping adjacent to city streets or
pedestrian walking paths, including but not limited to low-level plants and
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shrubs, landscape walls and fences less than three feet (3') in height, a private
postal box on a post, boulders, concrete and other flatwork;
2. Bicycle racks;
3. Newspaper racks;
4. Awnings, signs, eaves or other minor architectural features of buildings
extending more than four feet (4') into the public right-of-way;
5. Other minor improvements which the Director determines will not
inconvenience or jeopardize the City management or use of the public right-of-
way.
G. "Minor encroachment permit" means an encroachment permit issued pursuant to this
chapter to authorize a temporary encroachment or a minor continuing encroachment
as defined herein.
H. "Moratorium Street" mean any portions of the public right-of-way that were constructed
or resurfaced during the five (5) year period prior to the proposed excavation and any
portions of the public right of way that have been constructed or resurfaced more than
five (5) years before the proposed excavation, provided that the right-of-way has a
pavement condition index of seventy (70) or higher as described in the City's pavement
management program and as defined in City Resolution 12371.
I. "Permittee" means any person, utility or special district that has been issued a minor
encroachment permit, revocable license agreement, or utility/special district
encroachment permit pursuant to this chapter or their successor in interest.
J "Person" means any natural person, firm, joint venture, joint stock company,
partnership, association, club, company, corporation, business trust, organization, or
the manager, lessee, agent, servant, officer or employee of any of them or any other
entity which is recognized by law as the subject of rights or duties, not including the
City of San Rafael, the San Rafael Successor Agency, or their officers, employees or
agents.
K. "Public right-of-way" means land which by written instrument, usage or process of law
is owned by, reserved for or dedicated to the public use for street or highway purposes,
or other transportation purposes, whether or not such land is actually being used or
developed specifically for those purposes.
L. "Public street" means the portion of the public right-of-way of any road, street,
pedestrian walking path, or alley used by or for the general public for travel purposes,
including sidewalks and areas between sidewalks and the vehicular traveled way,
whether or not those roads, streets, pedestrian walking paths, and alleys have been
accepted as and declared to be part of the City system of public streets, except streets
forming a part of the state highway system or county roads or expressways.
M. "Revocable License Agreement" means a separate agreement as required by Section
11.04.050 of this Chapter, between the City and the property owner stipulating the use
of public right-of-way utilized by a property owner, such as, for example, the
encroachment of a structure or retaining wall into the public right of way which is to be
maintained by the property owner.
N. "Special district" means any public agency that has been created for the local
performance of governmental or proprietary functions within limited boundaries.
O. "Street cut" means the action or result of opening, tearing up, excavating, removing or
constructing any portion of any roadway, street or thoroughfare, sidewalk, driveway,
curb or gutter, or any other facility existing within the public right-of-way area, for any
purpose whatsoever within the jurisdiction of the City.
P. "Structure" means any physical alteration or improvement, including but not limited to a
building, post, cabinet, fence, vault, sign, pole, guard rail, wall, facility, pedestrian
walking path, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe,
embankment or excavation.
Q. "Temporary encroachment' means an encroachment which is intended to continue for
a specified, limited period of time, not to exceed one year, and shall include, but not be
limited to, the following:
1. Debris boxes;
2. Scaffoldings;
3. Tree trimming by private property owners or their contractors;
4. Closure for limited periods of time of public streets, driveways or public areas
not under control of the state or the county;
5. Closure for limited periods of time of public sidewalks;
6. Painting/washing of building exteriors adjacent to the public right-of-way or
public street;
7. Construction required for installation of sidewalks, driveway approaches, curbs
and gutters, including underdrains, underground facilities, and sewer laterals;
8. Temporary construction fencing;
9. Painting of address numbers on curbs.
R. "Utility" means any entity providing electricity, gas, cable, video programming,
telephone, telecommunications or other services to customers, and which pursuant to
state law or local franchise is entitled to install its facilities in the public rights-of-way.
S. "Utility/special district encroachment" means any encroachment by a utility or special
district.
T. "Waste material" means any rubbish, brush, earth or other material of any nature which
is unused, unwanted or discarded, including any garbage, recyclable materials, solid
waste and yard waste as defined in Chapter 9.19
DIVISION 3:
Section 11.04.030.020 of the San Rafael Municipal Code is hereby amended to read in its
entirety as follows:
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11.04.030.020 - Exceptions to permit requirement.
Notwithstanding Section 11.04.030.010 above, no permit or license shall be required pursuant
to this chapter for any of the following:
A. The actions of any officer or employee of the city engaged in the discharge of official
duties.
B. The performance of work under contracts to the city, including work for City projects.
C. Encroachments existing prior to the effective date of this chapter; provided, however,
that nothing in this chapter shall preclude the Director from requiring an appropriate
encroachment permit for or removal of any such preexisting encroachment where the
Director determines the encroachment adversely affects the safety, capacity or
integrity of the City's right-of-way.
D. Maintenance or repair of existing pipes, facilities, conduits or other structures lawfully
on or under a public right-of-way by a utility or special district, where such maintenance
or repair work will not affect traffic in an arterial street.
E. Performing the actual emergency street cut or excavation in the public right-of-way by
a utility or special district to repair a broken or defective pipe, facility or conduit lawfully
on or under any public street, as may be necessary for the preservation of life and
property when an urgent necessity therefore arises and the offices of the City are
closed, provided that reasonable vehicular and pedestrian barriers or other traffic
controls shall be provided during the performance of any such repairs. The utility or
special district performing the repair work shall notify the City's Public Works
Department by telephone at the time any such repair work is commenced and apply for
an encroachment permit retroactively as specified in section 11.04.060 of the Municipal
Code for each emergency location within 72 hours of performing the work. The utility
shall pay all encroachment permit fees for emergency work as described by the latest
schedule of fees developed by the City and described herein.
F. Tree work, including but not limited to planting, trimming, or removal of any new or
existing tree within the public right-of-way where a permit has been issued for such
work pursuant to Chapter 11. 12, and no traffic lane closure is anticipated.
G. Sidewalk cafes and restaurants, which shall be governed by the provisions and
requirements of this code for outdoor dining license agreements.
H. Street closures for special events specifically approved by the City Council.
Awnings, signs, eaves or other minor architectural features of buildings extending no
more than four feet (4') into the public right-of-way; provided that nothing herein shall
authorize the placement of signs directly on any street or the right-of-way.
DIVISION 4:
Section 11.04.030.050 of the San Rafael Municipal Code is hereby amended to read in its
entirety as follows:
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11.04.030.050 - General construction standards.
A. All work done under a permit or license shall conform to the standard specifications
and to the conditions of approval established from time to time by resolution of the City
Council or, in the absence of established specifications, to recognized standards of
design and construction and approved practices in connection with the work to be
done. All work shall be done subject to the satisfaction and approval of the Director.
B. If the work, use or encroachment authorized in the permit or license issued pursuant to
this chapter interferes with the established drainage, the permittee shall provide for
proper drainage as directed by the Director.
C. All operation, maintenance and repairs to a continuing encroachment shall conform to
the conditions of approval of the underlying encroachment permit, to the terms of any
applicable license or agreement with the City, and to established and recognized
standards of construction, design, operation and maintenance for the particular type of
encroachment.
D. In those areas and portions of the City where the transmission or distribution facilities
of any person providing telephone service, cable service, or electric service are
underground, all other such facilities shall be constructed, operated, and maintained
underground unless such requirement is in conflict with a specific state or local
franchise agreement, or in conflict with a state statute or regulation applicable to a
charter city.
E. Where existing poles or other wire -holding structures are available for use, the Director
may require such poles and structures to be used if the director determines that the
public health, safety, welfare or convenience would be enhanced by such installation,
and the terms of the use are just and reasonable.
F. Any excavation or construction work that can damage a moratorium street shall not be
allowed unless the work occurring is required to address an emergency that poses a
threat to health and safety of the general public. Emergency work on a moratorium
street may be allowed at the discretion of the Public Works Director. The extent of the
repair and restoration of a moratorium street shall be left up to the discretion of the
Public Works Director and in general will be extended to encompass a larger area to
provide continuity with the existing paving.
DIVISION 5:
Section 17.10.020 of the San Rafael Municipal Code, is hereby amended to read in its entirety as
follows:
17.10.020 Applicability and exceptions.
This title shall apply to all portions of San Pablo Bay and San Rafael Bay, tidelands,
shorelines, waterways, canals, beaches or salt marshes within the City which are below an
elevation of 7.5 feet mean lower low water datum and to contiguous land between that
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elevation line and either a point one hundred feet inland or the nearest publicly maintained
road, whichever is closer. The following items shall not be subject to this title:
(1) Any structure, fill or excavation which is not within and which does not
encroach on the tidelands and waterways as defined herein;
(2) Any emergency work necessary to prevent or to minimize imminent damage to
land or improvements from floodwaters. Such emergency work shall be reported in
writing within ten days after the start of such work to the Department of Public Works;
(3) Any structure, fill or excavation which the Director of Public Works or his
designee ("Director") finds to be minor or incidental, including repair or replacement in
kind of an existing structure or structures not requiring any new fill or excavation;
(4) Any structure, fill or excavation which has been approved prior to May 17,
1971, as part of any application, action or permit by the Planning Commission or the
planning director, except that such structure, fill or excavation shall not be deemed to
have been approved for a building permit. Where a development is subject to other
provisions of the municipal code, approval of any fill, excavation, or structure within the
scope of this title, which is contained in the development, shall be subject to the findings
of subsection (4) of Section 17.10.040;
(5) Any structure, fill or excavation which is behind secure dikes, which existed
prior to June 16, 1971, and which is normally not subject to tidal action by virtue of the
dike, or which is only temporarily under tidal action due to defective tide gates;
(6) Within creeks, estuaries and rivers the applicability of this title shall extend
downstream from certain defined points as follows:
(A) San Rafael Canal: The bridge at the northbound off -ramp of Highway
101 eastward (Irwin Street),
(B) The north fork of Las Gallinas Creek: Highway 101 eastward,
(C) Any other navigable waters annexed by the City.
DIVISION 6:
Section 17.10.030 of the San Rafael Municipal Code is hereby amended to read in its entirety
as follows:
17.10.030 Prohibitions.
Notwithstanding the provisions of any other City ordinance, it is unlawful for any
person, firm, corporation or public agency to permit, cause to permit, do or cause any of the
following:
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(1) Dump, deposit or construct within or fill with materials, dirt, earth, mud,
garbage, untreated sewage, solid waste, vessels or parts of vessels of any kind, or any
material whatsoever in or on any of the tidelands designated in Section 17.10.020,
except in compliance with Section 17.10.040.
(2) Excavate, dredge or remove any dirt, earth, mud, sand, gravel or any other
material from any of the tidelands designated in Section 17.10.020, except in
compliance with Section 17.10.040.
(3) Construct or place any pier, dock, wall, bulkhead, breakwater or other structure
on any of the tidelands designated in Section 17.10.020, except in compliance with
Section 17.10.040.
DIVISION 7:
Section 17.10.040 of the San Rafael Municipal Code is hereby amended to read in its entirety
as follows:
17.10.040 Procedure.
(1) Filing and Content of Application for a Tidelands Permit. Application for fill, excavation
or structures within tidelands as defined in Section 17.10.020 shall be made to the Department
of Public Works in the form of an aoolication for a tidelands permit. The application shall
include information showing existing and proposed grades, extent and amount of proposed fill
or excavation, location of all existing and proposed structures, a tentative plan for the future
development of the area, and sufficient detail to allow a determination of the impact of the
proposal on the navigability, appearance and safety of the waterways.
(2) Action by liicn P.-cf-cDirector of Public Works.
(a) If the application includes only a structure and/or if the proposed fill or
excavation covers less than one acre, the Director of Public Works or his
designee ("Director") , shall approve, conditionally approve or deny the
application within ninety(90) days after the date the application is deemed
complete, unless a later date is agreed to by the applicant.
(b) The Director shall provide not less than ten (10) days written notice by first
class mail to occupants and to owners (as shown on the County Assessor's
latest tax roll) of properties located within 300 feet of the proposed structure, fill
or excavation and to any homeowners' association in the neighborhood of the
proposed structure, fill or excavation, advising of the filing of an application for
a tidelands permit, describing the proposed structure, fill or excavation and its
location, and providing an opportunity to submit written comments regarding
the application to the City prior to the Director's action on the application.
Failure to mail or receive notice shall not invalidate any proceedings under this
title.
(c) The Director shall consider, in arriving at his decision, applicable regional and
state plans for tidal waterways and the criteria, standards, and policies
developed by agencies administering such regional and state plans, applicable
CEQA requirements, and any written comments submitted by interested
parties.
(3) Action by Planning Commission.
(a) If the proposed fill or excavation covers one acre or more, the Planning
Commission shall consider the application and the recommendations of the
Director thereon. If the proposed project includes any other applications that
must be reviewed and acted upon by the Planning Commission, the application
for tidelands permit shall be processed and acted upon concurrently with such
other applications_
(b) The planning commission shall consider the application at a public hearing set
after not less than ten (10) days written notice by first class mail to occupants
and to owners (as shown on the County Assessor's latest tax roll) of properties
located within 300 feet of the proposed fill or excavation and to any
homeowners' association in the neighborhood of the fill or excavation. Failure
to mail or receive notices shall not invalidate any proceedings under this title.
(c) The Planning Commission shall consider, in arriving at its decision, applicable
regional and state plans for tidal waterways and the criteria, standards, and
policies developed by agencies administering such regional and state plans,
applicable CEQA requirements, and any other oral or written evidence
submitted at or prior to the public hearing.
(4) Findings. The Director or the Planning Commission shall approve or conditionally
approve applications where it is found that:
(a) The encroachment of the tidelands is the minimum necessary to achieve the
purpose of the proposed work;
(b) The proposed fill, excavation or construction will not unduly and unnecessarily:
(i) Inhibit navigation, or access to publicly owned tidelands,
(ii) Cause, or increase the likelihood of, water pollution,
(iii) Cause, or increase the likelihood of, flooding of adjoining lands,
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(iv) Destroy, or accelerate the destruction of habitats essential to species
of fish, shellfish and other wildlife of substantial public benefit,
(v) Diminish the scenic beauty of the shoreline in a manner which will
impede future construction of parks, boat harbors and recreation facilities,
(vi) Create a safety hazard in connection with settlement of fill or
earthquakes, or
(vii) Diminish natural waterways by siltation, sedimentation or bank erosion;
(c) The proposal is in substantial harmony with any adopted City general plan or
specific plan;
(d) Public benefits will be created to offset some of the detriments which may be
caused by the nature of the proposal. However, this finding is not required:
(i) Where the application covers lands wholly above elevation 7.5 feet mean lower low
water datum, or
(ii) Where the size or potential uses of the parcel are so limited that creation of a public
benefit would be infeasible and where the amount and effect of fill, excavating or structures are
minimal,
(iii) If the water frontage of any presently existing parcel is less than two hundred fifty (250)
feet or its area is less than two and one-half acres, in the absence of any evidence to the
contrary, it shall be presumed that there will be no detriments which are required to be offset
by public benefits.
(iv) These public benefits may be realized, through development of new recreational
opportunities; or provision of new public access to the water; or enhancement of shoreline
appearance; or establishment of water transportation; or facilities for land or air transportation
where all other alternatives have been exhausted; or construction of water -oriented industry or
development of marine food supplies or other benefits considered by the Planning Commission
to be of comparable importance.
(6) Expiration and Extension of Tidelands Permits. A tidelands permit shall expire one year
from the effective date of the approval, unless a different expiration date is stipulated at the
time of approval. Prior to the expiration of such a permit, the applicant may apply to the
Department of Public Works for an extension. The Director may make minor modifications of
the permit at the time of extension if he finds that there had been a substantial change in the
circumstances surrounding the original approval. Extensions may be granted for a period of no
more than one year from the time of expiration of the original permit. If a building permit or
excavation permit was issued during the effective life of a tidelands permit the expiration date
of the tidelands permit shall be automatically extended to concur with the expiration date of the
building permit or excavation permit.
DIVISION 8:
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held
to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The
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Council hereby declares that it would have adopted the Ordinance and each section, subsection,
sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared invalid.
DIVISION 9:
This Ordinance shall be published once, in full or in summary form, before its final passage, in
a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in
full force and effect thirty (30) days after its final passage. If published in summary form, the summary
shall also be published within fifteen (15) days after the adoption, together with the names of those
Councilmembers voting for or against same, in a newspaper of general circulation published and
circulated in the City of San Rafael, County of Marin, State of California.
I
/GARY O. ILLIPS, Mayor
ATTEST:
1!'2!L' � F. " e - - A
ESTHER BEIRNE, City Clerk
The foregoing Ordinance No. 1922 was read and introduced at a Regular Meeting of the City Council of
the City of San Rafael, held on the 2nd day of June, 2014 and ordered passed to print by the following
vote, to wit:
AYES: Councilmembers: Bushey, Colin, Connolly, McCullough & Mayor Phillips
NOES: Councilmembers: None
ABSENT: Councilmembers: None
and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the
Council to be held on the 16th day of June, 2014.
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ESTHER BEIRNE, City Clerk