HomeMy WebLinkAbout7 Adopt enroachment policy Agenda Item # 7
Public Utility District 1,
CONSENT
To: Board of Directors
From: Kathleen Neus
Date: October 01, 2008
Subject: Adopt an Encroachment Policy
1. WHY THIS MATTER IS BEFORE THE BOARD
Only the Board can approve policies.
2. HISTORY
Over the years, a few of the adjacent property owners have used District land for
various, such as boat, firewood and miscellaneous storage; landscape encroachment,
property access or commercial purposes. Most of the uses have been without
consent or permission of the District and frequently are inconsistent with public
ownership of the land. Many of these encroachments create a safety hazard and
increased maintenance costs.
3. NEW INFORMATION
Staff has developed an encroachment process with the goal of eliminating all
encroachments through a controlled use of the properties. At the September 3, 2008
Board meeting staff brought a draft policy before the Board for review and comment.
The Policy and Encroachment Application take into consideration all comments of the
Board and Counsel.
Attachments:
Encroachment Policy
Encroachment Application
4. FISCAL IMPACT
The fiscal impact is yet to be determined.
5. RECOMMENDATION
Adopt the Encroachment Policy and the Encroachment Application as part of the
District's Codes and Policies; Title 8, District Property, Section 8.06.030.
Michael D. Holley
General Manager
ENCROACHMENT POLICY
TRUCKEE DONNER PUD
Policy
The intent of this policy is to define guidelines and parameters as it relates to
encroachments on Truckee Donner PUD (District) property. An "encroachment' is an
entry onto or use of District property without the District's explicit permission. Examples
of encroachments are fences, snow storage, wood or vehicle storage or buildings which
have intentionally or unintentionally been placed on District property.
The District, in its sole and absolute discretion, may approve, deny, or set any limitations
or conditions on any encroachment on District property and issue and, at any time, alter,
amend, modify, rescind, or revoke an Encroachment Permit for an encroachment, all
without recourse or remedy by an Applicant/Permittee for an Encroachment Permit or
liability to the District. The District may also amend, modify or rescind this policy at any
time without recourse or remedy by any Applicant/Permittee or with liability to the
District.
Definition
"Encroachment' means an unauthorized entry onto or use of District property, including
removal or planting of vegetation, placement of structures or materials, snow removal or
storage, or other alteration of surface or landscape that may affect or alter the visual
aspects and uses of Truckee Donner PUD property.
An "Encroachment Permit" is a contract between the District and the permit holder. An
Encroachment Permit is not a property right, such as an easement, nor does it confer a
property right. The Encroachment Permit cannot be transferred with the sale of real
personal property. It is mandatory that the encroachment be abated with the sale of the
property.
Each Encroachment Permit issued shall have a maximum term of one year and must be
renewed if the Permittee would like the Encroachment Permit to extend beyond the term.
Encroachment Permits for the same encroachment will not be granted for more than a
total of five years.
The Encroachment Permit Category cannot change from a more severe category to
lesser one at anytime. It is possible, at the discretion of the District, to change the
designation to a more severe category depending on the whether the encroachment
expands in scope or becomes more severe.
Implementation
1. It is the responsibility of a property owner to know the location of property
boundaries, in particular when use of that property causes an encroachment onto
District property.
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2. The District shall seek voluntary elimination of encroachments. Except where
otherwise specifically authorized, encroachments shall be removed and the
District's property restored to its pre-encroachment condition to the extent
possible.
3. The party responsible for an encroachment may request an Encroachment
Permit according to the process set forth below, including providing information
required to support the following findings and payment of a fee. The fee will be
based upon the category of the encroachment.
4. The responsible party shall provide information to the District to verify and plan
for the adequacy of restoration required. The encroachment shall be removed
and restoration shall be completed prior to the expiration of the Encroachment
Permit.
5. If the District finds that the encroachment has not been satisfactory corrected,
and no response is received within 10 days, the District shall notify the property
owner, or other responsible party, that the District may eliminate the
encroachment, restores the effected area, and charge the responsible party for
incurred costs.
Encroachment Review Process
Upon the report or discovery of an encroachment, the District's Technical Program
Administrator shall:
1. Investigate the encroachment to confirm that the area is or appears to be within
the boundaries of District owned property.
2. Notify the property owner or other responsible party of the encroachment by mail.
The notice shall include a description, which may include photograph or drawing
of the encroachment, and location, and shall request a response within 10 days
of receipt of the letter.
3. If no response is received within 10 days, and the encroachment remains, the
District will notify the property owner or other responsible party of the
encroachment by certified mail. If after 10 additional calendar days there is still
no response, the District shall take necessary action which may include legal
action to remove the encroachment.
Request for Encroachment Permit
1. A party responsible for an encroachment may request an Encroachment Permit
accordingly by filling out and submitting an application form along with all
applicable fees.
2. The encroachment shall not be contrary to any deed or other restriction for either
parcel or violate any local, state or federal statute, regulation or ordinance.
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3. The encroachment shall not detract from the visual character or use of the
surrounding properties as determined by the District.
4. The responsible party may pay an additional fee equivalent to the fair market
value of the land area directly affected by the encroachment depending upon the
permanence of the encroachment.
5. The Applicant/Permittee shall covenant and agree to indemnify, defend and hold
the District harmless from and against all claims, actions, or suits, for any loss,
liability, injury, and damage to person or property including attorneys' fees,
experts' fees and costs, which may be asserted against the District because of
the Applicant/Permittee's encroachment of the District's property.
6. The Applicant/Permittee shall furnish satisfactory proof, by certificate, presented
to the District within fifteen days of the date of the Encroachment Permit, that
he/she/it has comprehensive general liability, public liability and property damage
insurance. The insurance shall name the District as an additional insured, be the
primary insurance and protect both the Applicant/Permittee and the District, its
officers and/or agents against loss from all liabilities imposed by law, and shall be
maintained in full force and effect during the term of the Encroachment Permit of
the contract and in the following amounts:
a) Limit of liability for comprehensive general liability - $1,000,000 aggregate
liability for loss per accident.
b) Limit of liability for personal injury or accidental death-one person,
$1,000,000; aggregate liability per accident, $1,000,000.
c) Limit of liability for property damage - $1,000,000 aggregate liability for
loss per accident.
Rights of Appeal
If the Applicant/Permittee wishes to appeal the Encroachment Classification, the
Applicant/Permittee may request the decision to be reviewed by the General Manager of
the District by filing a request for review in writing. To be timely, the request for review
must be received within fourteen calendar days of the date of the original written
decision. The decision of the General Manager shall be conclusive and final.
Encroachment Classifications and Encroachment Permit Costs
Category 1 (Minor) — Gardens or other intentional or unintentional plantings, escaping
from private property through propagation by root, tube, trunk, limb, vine or other non-
wind borne means and incidental use. Cost of a Category 1 Encroachment Permit -
$150.00 per year.
Category 2 (Major) — Non-permanent structures and improvements, such as those
without durable and complete foundations. Non-permanent structures and improvements
include fences, paths, walkways, pavers, gravel, stone, earthen berms, earth fill,
drainage across the property, single or gang mail boxes, unpaved parking areas and
storage areas that are not included in permanent structures. Cost of a Category 2
Encroachment Permit - $500.00 per year.
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Category 3 (Special) — Permanent Structures are such as those which utilize a durable
and complete foundation. Permanent structures include buildings, concrete patios,
paved parking areas, driveways, decks with foundations, masonry walls, sheds, and rip-
rap. Cost of a Category 3 Encroachment Permit - $1000.00 per year.
The above lists are not all inclusive. The applicant must check with the District to
determine the encroachment classification for an encroachment.
Prohibitive items for which Encroachment Permits shall not be granted include, but are
not limited to, the dumping of any non-toxic/toxic and non-hazardous/hazardous material
or waste; including fuel, oil, green waste, the spraying of pesticides, herbicides and
insecticides and deposition of any toxic or hazardous material including fertilizers.
Category 1 and 2 Encroachments Permits shall be reviewed and acted upon by District
Staff.
Category 3 (Special) Encroachment Permits requires review and action as an agenized
item before the Truckee Donner PUD Board of Directors at a regularly scheduled
meeting.
Once a year District staff will gather information on all Encroachment Permits, the status
of the same and will provide an annual report to the District's Board of Directors.
Limitation
An Encroachment Permit as described above is temporary, vests no permanent rights,
and does not attach to the land. The Permit may be revoked upon a minimum of thirty
(30) days' notice, unless a shorter notice period is specified in the permit or is justified by
an imminent or substantial risk to harm to persons or property.
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APPLICATION FOR ENCROACHMENT PERMIT
Name of Applicant:
Mailing Address: Telephone Number:
Location of Encroachment:
(A scaled drawing or site plan of the proposed encroachment must be attached)
Legal Description of Applicant's Property:
Use of Property:
Owner of Property:
Insurance Carrier:
Complete Description of Encroachment:
Expected Mitigation Date:
Applicant/Permittee covenants and agrees, in the event that an encroachment permit is issued, to
indemnify, protect, defend and save the Truckee Donner PUD (the District) harmless from any
and all claims, actions or suits for any loss, liability or damage that may be asserted or leveled
against the property or the District by reason of Applicant's use or occupancy of the District's
property, including any expenses, costs or attorney fees incurred in connection with any such
claim, action or suit. In the event of any incident occurring on the property, resulting in a personal
injury, including death, which in any manner whatsoever involves the permitted encroachment,
Applicant/Permittee agrees to notify the District within 72 hours of the happening of any said
incident or occurrence.
Applicant covenants and aggress to purchase and maintain, during all periods for which an
encroachment permit is applicable, a policy of general liability insurance in the amount of not less
than $500,000 per occurrence and in the aggregate which shall protect and save harmless the
District, its officers and employees form any and all manner of claims, suits or actions for injuries,
death, losses or damages arising out of, occurring or resulting to any person or property as a
result of the requested encroachment.
The certificate and policy of insurance shall be endorsed as follows:
The Applicant/Permittee, at its sole cost and expense, shall maintain general liability insurance in
the amounts of at least$500,000 and $5,000,000 as single and aggregate coverage,
respectively, and property damage insurance in the amount of at least$1,000,000, insuring
TDPUD, its officers, directors, officials, employees, agents and volunteers against all liability,
claims, demands, damages, costs, or losses arising out of or in connection with the
Applicant/Permittee's encroachment.
The insurance shall be endorsed to name TDPUD, its directors, officers, officials, employees,
agents and volunteers as additional insureds regarding liability arising out of the
Applicant/Permittee's duties, activities and operations under this Agreement. The coverage shall
contain no special limitations on the scope of protection afforded to TDPUD, its directors, officers,
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officials, employees, agents or volunteers. Applicant/Permittee's coverage shall be primary and
shall apply separately to each insured against whom a claim is made or suit is brought, except
with respect to the limits of the insurer's liability. TDPUD's insurance, if any, shall be excess and
shall not contribute with Applicant/Permittee's insurance.
By granting permission to use or occupy the District's property for the stated purpose, the District
is only granting the Applicant/Permittee a mere license, Applicant/Permittee shall waive, release
and relinquish any and all claim of right, title or interest in the District's property or ROW. In the
event that the property's use is changed or the property is sold, transferred or otherwise
conveyed by the Applicant or Owner, the encroachment permit shall expire. In the event that the
Applicant/Permittee fails to comply with any of the conditions or agreements set forth above or in
the District's Encroachment Policy, then this encroachment permit shall automatically expire and
Applicant/Permittee shall immediately remove the encroachment.
The undersigned states that he/she has full authority to execute this application on behalf of the
owner and acknowledges receipt of a copy of the District's Encroachment Policy and agrees to
comply with all terms and conditions set forth therein.
Applicant/Permittee Name (Print)
Date
Applicant/Permittee Signature
ACTION BY TRUCKEE DONNER PUBLIC UTILITY DISTRICT
The encroachment application is APPROVED/DENIED subject to the following conditions:
Category of the Encroachment:
Date Authorized TDPUD Representative
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