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HomeMy WebLinkAbout13 Encroachment policy Agenda Item # 13 ER Public Utility Di'strict i: WORKSHOP To: Board of Directors From: Kathleen Neus Date: September 03, 2008 Subject: Discussion of a District Encroachment Policy 1. WHY THIS MATTER IS BEFORE THE BOARD Only the Board can set policy. 2. HISTORY Over the years, a few of the adjacent property owners have used District land for various purposes, 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. The District owns approximately 75 parcels of land. All of the parcels are located within the district's sphere of influence and most are located within the Town of Truckee boudaries. 3. NEW INFORMATION Staff has developed a draft encroachment process with the goal of eliminating all encroachments through a controlled use of the properties. A copy of the draft encroachment policy is attached. Some of the main elements of the policy include: 1) Staff identification of a potential encroachment and classifying the encroachment by the type and degree of encroachment. 2) Staff working with the people responsible for the encroachment to either abate the encroachment (preferred approach) or permit the encroachment through a formalized process that will ultimately result in abatement of the easement within five years. 3) Staff will perform annual compliance checks and will present the Board with an annual status report. Attachments: Draft Encroachment Policy Encroachment Application 4. FISCAL IMPACT The fiscal impact is yet to be determined. 5. RECOMMENDATION Review and provide comments on the attached draft policy. Michael D. Holley General Manager ENCROACHMENT POLICY TRUCKEE DONNER PUD DRAFT 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 "passive" use or infringement on District property. Examples of encroachments are fences, wood or vehicle storage or buildings which have inadvertently 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 Permit which may be issued, or may at any time alter, amend, modify, rescind, or revoke any permit or this Policy, all without recourse or remedy by the Applicant/Permittee, or liability to the District. Definition "Encroachment' means an unauthorized change, 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 easement be abated with the sale of the property. All encroachment permits have a total maximum life of five years, regardless if the real property is sold. Encroachment permits must be renewed every year until the encroachment is removed or the maximum life time has been reached. 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 becomes more Implementation 1. It is the responsibility of a property owner to know the location of property lines in particular when use to that property causes physical change to ground or vegetation, or is a regulated use. 1 Draft Encroachment Policy 2. The District shall seek voluntary elimination of encroachments. Excep. "here otherwise specifically authorized, encroachments shall be removed and the iQ. 1 restored to its original 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 will be required. 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. Restoration shall be completed as soon as reasonably possible by the responsible party within 30 days. 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 charges the responsible party for incurred costs. Encroachment Review Process Upon the report or discovery of an encroachment, the 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 certified 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. 4. A party responsible for an encroachment may request an encroachment permit according to the process set forth, including providing information required to support the following findings and payment of the fee to cover administrative costs of processing the request. Request for Encroachment Permit 1. The encroachment shall not be contrary to any deed or other restriction for either parcel. 2. The encroachment shall not detract from the visual character or use of the surrounding properties. 2 Draft Encroachment Policy 3. The responsible party pays an additional penalty equivalent to the fair -9rket value of the land area directly affected or an annual fee. 4. The Applicant/Permittee shall covenant and agree to indemnify and defend the District from all claims, actions, or suits, for any loss, liability, injury, and damage to person or property including attorneys' fees, which may be asserted against the District because of the Permittee's activities, use, or occupancy of the District's property. 5. The Applicant/Permittee shall furnish satisfactory proof, by certificate presented to the District within fifteen days of the date of the contract, that he/she/it has comprehensive general liability, public liability and property damage insurance. The insurance shall protect both the Applicant/Permittee and the District, its officers and/or agents against loss form all liabilities imposed by law, and shall be maintained in full force and effect during the performance 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 Category designation, the Applicant/Permittee may request the decision to be reviewed by the General Manger 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 decision. Encroachment Classifications Category 1 (Minor) — Gardens or other intentional plantings; such as unintentional plantings, escaping from private property through propagation by root, tube, vine or other non-wind borne means. Cost of a Category 1 Encroachment Permit - $150.00 per year. Category 2 (Major) — Non-permanent structures are those without durable and complete foundation; this includes fences, walkways, pavers, earthen berms, earth fill, unpaved parking areas and storage areas that are not included in permanent structures. Cost of a Category 2 Encroachment Permit - $500.00 per year. Category 1 and 2 Encroachments Permits will be reviewed and granted by District Staff with an annual report to the District's Board of Directors Category 3 (Special) — Permanent Structures; a permanent structure are those that which utilize a durable and complete foundation. Permanent structures include buildings, concrete patios, paved parking areas, decks with foundations, masonry walls, sheds, rip-rap. Cost of a Category 3 Encroachment Permit - $1000.00 per year. 3 Draft Encroachment Policy Category 3 (Special) Encroachment Permits requires an agenized iten, "More the Truckee Donner PUD Board of Directors at a regularly scheduled meeting. These lists are not all inclusive; applicant must check with the District to clarify what category an encroachment falls. Prohibitive items include and not limited to the dumping of any non-toxic/toxic and non- hazardous/hazardous material; including fuel tanks, green waste, the spraying of pesticides, herbicides and insecticides and deposition of any toxic or hazardous material including fertilizers. Additionally, the encroachment cannot be used for any commercial applications or features of commercial development. 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 within 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. 4 Draft Encroachment Policy 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, 1 Encroachment Application officials, employees, agents or volunteers. Applicant/Permittee's coverage shall be prif� -Yv and shall apply separately to each insured against whom a claim is made or suit is brought, ex.. ,,t with respect to the limits of the insurer's liability. TDPUD's insurance, if any, shall be excess anu 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 CITY ENGINEERING DEPARTMENT The encroachment application is APPROVED/DENIED subject to the following conditions: Category of the Encroachment: Date Authorized Engineering Representative 2 Encroachment Application