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Help & SupportChapter 8-6: Public Right-of-Way and Easement Encroachments, Revocable Permits, Leases, and Vacations22
The purpose of this chapter is to regulate the placement of structures within or upon any public right-of-way or public easement and to establish standards and procedures for the vacation of any public easement or public right-of-way, in order to assure adequate and safe public access to the streets, appropriate utilization of public easements, and for the just disposition of property determined to be unnecessary to meet public needs.
The following terms used in this chapter have the following meanings, unless the context fully indicates otherwise:
"Encroachment" means a private improvement, structure, or obstruction extending into or located within, upon, above, or under any public right-of-way or public easement.
"Fence" means any artificially constructed barrier of wood, masonry, stone, wire, metal, or any other material or combination of materials erected to enclose, partition, beautify, mark, or screen areas of land.
"Landscaping" means materials, including, without limitation, grass, ground cover, shrubs, vines, hedges, or trees and non-living natural materials commonly used in landscaped development, as well as attendant irrigation systems.
"Obstruction" includes, without limitation:
(a) A fence, hedge, or wall placed nearer than permitted by section 9-9-15, "Fences and Walls," B.R.C. 1981, to any public sidewalk or path;23
(b) Any landscaping, structure, or fence within the corner sight triangle specified in section 9-9-7, "Sight Triangles," B.R.C. 1981, or within its prolongation within the right-of-way, which does not comply with the requirements of that section;
(c) A tree or bush or other plant or a structure of any sort which projects beyond the property line of property abutting the right-of-way of any street, sidewalk, path, or alley onto or over the public right-of-way and obstructs the view of traffic, obscures any traffic control device, prevents pedestrian use of any part of a street, sidewalk, path, or alley, or otherwise constitutes a hazard to drivers or pedestrians. Without limitation, a dead bough of a tree located on a person's property but overhanging public property constitutes such a hazard24;
(d) Cement, concrete, piping, or other material placed in a gutter to aid vehicles in driving over a curb or for any other purpose.
"Structure" means anything constructed or erected with a fixed location below, on, or above grade, including, without limitation, foundations, fences, retaining walls, awnings, balconies, and canopies.
(Ordinance No. 7224 (2002))
8-6-3 Public Right-of-Way and Public Easement Encroachments Prohibited.
No person shall erect or maintain any building, structure, fence, barrier, post, landscaping, obstruction, or other encroachment within, under, above, or upon any public right-of-way, path, alley, or public easement without first obtaining permission from the city under this chapter unless exempt under the provisions of section 8-6-8, "Exempt Encroachments," B.R.C. 1981.
(Ordinance No. 7224 (2002))
8-6-4 Removal of Public Nuisances.
(a) Encroachments are Public Nuisances: An encroachment placed upon or maintained within the public right-of-way or a public easement contrary to the terms of this chapter constitutes a public nuisance that may be removed or enjoined and abated by suit or other action by the city or any resident of the city.
(b) Order to Remove Encroachments: Whenever any encroachment exists or is located contrary to the provisions of this chapter or when the city manager revokes a permit or lease granted pursuant to this chapter, the manager will notify the person who made, located, caused, allowed or permitted the encroachment, or who owns or controls the premises or property adjacent to or for which such encroachment exists and order the person to remove the encroachment within such time that the city manager determines is reasonable under the circumstances. Notice under this subsection is sufficient if it is mailed first class to the address of the last known owner of property on the records of the Boulder County Assessor, or if given by personal service, or, in the case of a condition sufficiently dangerous to constitute an emergency, given orally in person or by telephone to the owner or the owner's authorized representative. The manager is additionally authorized to use the provisions of this section to correct violations on private property adjacent to the public right-of-way of section 9-9-7, "Sight Triangles," B.R.C. 1981, and of section 9-9-15, "Fences and Walls," B.R.C. 1981, where such structures or hedges are within eighteen inches of a roadway, sidewalk, or path, and such conditions shall be deemed encroachments.
(c) City Manager May Remove Encroachments: If the person notified under subsection (b) of this section fails to comply with the order to remove the encroachment, the city manager may cause the encroachment or obstruction to be removed and may charge the cost thereof plus up to fifteen percent of such cost for administration to the person so notified. If any person fails or refuses to pay when due any charge imposed under this section, the city manager may, in addition to taking other collection remedies, certify due any unpaid charges, including interest, to the Boulder County Treasurer to be levied against the person's property for collection by the County in the same manner as delinquent general taxes upon such property are collected, under the procedures prescribed by section 2-2-12, "City Manager May Certify Taxes, Charges, and Assessments to County Treasurer for Collection," B.R.C. 1981. This civil remedy is in addition to any criminal action which the city may bring or pursue for a violation of this chapter.
(d) Compliance With Order Required: No person shall place an encroachment in a public right-of-way or public easement in a manner contrary to the terms of this chapter, or fail to comply with an order to remove such an encroachment.
(e) Hearing: Any person notified of an order under subsection (b) of this section may request a hearing pursuant to chapter 1-3, "Quasi-Judicial Hearings," B.R.C. 1981. If a timely request for a hearing is made, the manager may stay the order pending the hearing, or may opt to require the person to remove the obstruction, in which case the hearing officer may, if the initial order is found not to have been in compliance with the code, order the city to pay the reasonable cost of removal and, in a proper case, the reasonable cost to restore a structure or replace a plant.
(Ordinance No. 7224 (2002))
8-6-5 Encroachment Investigation Fee.
Applicants for revocable permits or leases under section 8-6-6, "Requirements for Revocable Permits, Short-Term Leases, and Long-Term Leases," B.R.C. 1981, where approval of an existing encroachment is requested, shall pay the fee prescribed by subsection 4-20-20(b), B.R.C. 1981, to cover the additional costs associated with investigating the impacts of the existing encroachment. The city manager may waive this fee if the manager determines that the applicant has adequately demonstrated that the encroachment was installed by another, without the present owner's knowledge or consent, prior to the applicant's ownership of the property or pursuant to a validly issued building permit, if such was required for the type of encroachment involved.
8-6-6 Requirements for Revocable Permits, Short-Term Leases, and Long-Term Leases.
(a) Purpose and Scope: Public rights-of-way and public easements are held by the city in trust for public use to ensure the health, safety, and welfare of the residents of the city. The city council intends that all decisions regarding the granting of permission to place an encroachment into public right-of-way or public easements are legislative in nature. The city may determine from time to time at its discretion to issue a revocable permit, short-term lease, or long-term lease subject to the requirements set forth in this section for certain encroachments into public rights-of-way and public easements that do not adversely affect its present or future use.
(b) Application Requirements: An applicant for permission to encroach on public right-of-way or easement shall:
(1) File a written application on a form provided by the city manager that includes the following: the date, the name of the applicant, the exact location of the proposed encroachment or obstruction, a written statement describing why the encroachment is necessary, the type of encroachment or obstruction, and such other information as the city manager may deem necessary;
(2) File evidence of the liability insurance required by section 4-1-8, "Insurance Required," B.R.C. 1981; except that, for permits concerning land where the city's property interest is a utility easement only and that easement does not permit use by the general public for access or any other purpose, the maximum amount of insurance required shall be $100,000.00; and
(3) Pay the fee prescribed by section 4-20-20, "Revocable Right-of-Way Permit/Lease Application Fee," B.R.C. 1981.
(c) Permit or Lease Determination: The city manager will consult with the planning, real estate, fire, and police departments and utilities, development and inspection services, and transportation divisions of the public works department to determine whether the application should be processed as a revocable permit, a short-term lease or a long-term lease. The manager shall notify the applicant whether the application will be processed as a revocable permit under subsection (d) of this section or as a lease under subsection (e) or (f) of this section. The following factors weigh in favor of a lease:
(1) Permanency of the encroachment;
(2) Physical difficulty of removal;
(3) Likely need for city intervention if removal is required within ten days;
(4) Monetary value is created by the encroachment or the encroachment excludes the use of the public right-of-way by the general public; and
(5) The resultant benefit from the encroachment is commercial in nature, rather than personal.
(d) Revocable Permit: The city manager may issue a revocable permit for a period not to exceed three years, upon finding that:
(1) The encroachment is designed in a manner to be temporary in nature;
(2) The encroachment does not constitute a traffic or other hazard;
(3) The encroachment does not destroy or impair the public's use of the land for its intended purposes or serves a public purpose that cannot otherwise be accomplished without such minor impairment; and
(4) Encroachment on a sidewalk in commercial areas maintains a minimum clearance of eight feet vertically and horizontally of unobstructed pedestrian way. The requirements of this paragraph may be modified by the city manager if reasonable passage is provided on the sidewalk and the safety of pedestrians, bicyclists and motorists is not impaired.
(e) Short-Term Leases: The city manager may enter into a lease on public right-of-way or a public easement for encroachments that are temporary in nature, or easily removed, subject to the provisions of section 2-2-8, "Conveyance of City Real Property Interests," B.R.C. 1981, upon finding that the standards for a revocable permit set forth in subsection (d) of this section have been met, and:
(1) A longer termed use of the public property for the specific term approved will not be contrary to the public interest and ultimate use of the public right-of-way or public easement;
(2) Adequate compensation is provided to the city throughout the lease term.
(f) Long-Term Leases: The city council may approve a long-term lease on public right-of-way or a public easement for encroachments that are permanent in nature subject to the provisions of section 2-2-8, "Conveyance of City Real Property Interests," B.R.C. 1981, upon a finding that the standards for a revocable permit and a short-term lease set forth in subsections (d) and (e) of this section have been met, and there will be no public need for the leased area during the lease period.
The city council may add any conditions and terms to the lease to ensure that the city's real property interests are maintained and public improvements are fully restored upon revocation, termination, or expiration of the lease.
(g) Leases for Point-To-Point Telecommunication Conduit Crossings: The city manager is authorized to enter into a lease for a telecommunication conduit crossing public right-of-way pursuant to an approved right-of-way permit under chapter 8-5, "Work in the Public Right-of-Way and Public Easements," B.R.C. 1981, which shall be leased by a single private user to provide a direct communication link between two properties. An applicant for a telecommunication conduit crossing shall meet the following criteria:
(1) The crossing shall be designed in conformance with requirements set forth in adopted city design and construction standards and shall meet all permitting requirements;
(2) The crossing conduit shall not interfere with any public use within the right-of-way;
(3) The maximum length of the crossing shall not exceed one hundred fifty feet and shall be substantially perpendicular to the right-of-way;
(4) The crossing includes the placement of an identification marker at each end of the conduit;
(5) The telecommunication link shall only be used to serve the needs of a single user;
(6) All construction costs and maintenance costs are paid by the applicant;
(7) The conduit shall become the property of the city;
(8) The approval and construction shall not create any legal interest on behalf of the applicant in the city's right-of-way;
(9) The lease for the applicant's use of the conduit shall be revocable at the request of the city or the applicant;
(10) The applicant shall indemnify the city for any losses that the city may incur related to the conduit encroachment into the right-of-way;
(11) The applicant shall hold the city harmless for any damage that the city may do while working on the right-of-way; and
(12) The cost of rent to the applicant under the lease shall be based on a "franchise fee equivalent" to be determined by the city and should be consistent with the amount a common telecommunications carrier would pay to the city.
(h) Mall Permit Required: Nothing in this section shall be deemed to waive or supersede the requirement to obtain a license or permit to place structures on the Downtown Boulder Mall, as required by chapter 4-11, "Mall Permits and Leases," B.R.C. 1981.
8-6-7 Revocation of Revocable Permit and Order to Remove Encroachment.
(a) Revocation or Order to Remove: The city manager may revoke, without cause, a permit or lease issued under this chapter at any time upon ten days' written notice.
(b) Encroachment Removal: Upon revocation of a permit under this chapter or a finding that the encroachment was made or located contrary to the provisions of this chapter, the manager will notify the person who made, located, caused, or permitted the encroachment, or who owns or controls the premises with which such encroachment is connected, and order such person to remove such encroachment within such time that the city manager determines is reasonable under the circumstances.
(c) Failure to Remove Encroachment: If the person notified under subsection (b) of this section fails to comply with the order to remove the encroachment or obstruction, the city manager may cause the encroachment to be removed and charge the costs thereof, plus up to fifteen percent of such costs for administration to any person so notified. If any person fails or refuses to pay when due any charge imposed under this section, the city manager may, in addition to taking other collection remedies, certify due any unpaid charges, including interest, to the Boulder County Treasurer to be levied against the person's property for collection by the county in the same manner as delinquent general taxes upon such property are collected under the procedures prescribed by section 2-2-12, "City Manager May Certify Taxes, Charges, and Assessments to County Treasurer for Collection," B.R.C. 1981.
(d) Compliance With Order to Remove: No person shall fail to comply with an order of the city manager to remove an encroachment.
The following items are conditionally permitted to encroach on public rights-of-way or public easements without obtaining a revocable right-of-way permit or a lease, subject to an order to remove, without cause, by the city manager after ten days' notice:
(a) Landscaping: The following landscaping may be placed in the public right-of-way and easements by the owner or tenant of property immediately adjacent to the area in which the planting occurs, or separated from such area only by a sidewalk:
(1) Landscaping required pursuant to other sections of this code;
(2) Landscaping required pursuant to an approved landscape plan as part of a development review application;
(3) Landscaping which does not impair or impede the utility of the right-of-way or easement for its designated purpose including attendant irrigation systems so long as the landscaping does not create any encroachment or obstruction of sight distance, as set forth in section 9-9-7, "Sight Triangles," B.R.C. 1981, or within its prolongation within the right-of-way, or, if a hedge, is in conformance with section 9-9-15, "Fences and Walls," B.R.C. 1981;
(4) Encroaching landscaping planted or maintained in accordance with this subsection shall be maintained so that there is eight feet of overhead clearance above and eighteen inches of side clearance from any roadway, sidewalk, and path at all times of the year, except that flowers and similar insubstantial plantings which have no capacity to impede pedestrian or bicycle traffic and are no higher than twelve inches may extend to the edge of the traffic facility. All plantings shall be made with the requirement of trimming to the standards of this code in mind; and
(5) Trees included as landscaping shall also be governed by the additional requirements of chapter 6-6, "Protection of Trees and Plants," B.R.C. 1981.
(b) Bicycle Racks: Bicycle racks in the public right-of-way, the location of which has been specifically approved by the city manager. Bicycle racks in the public right-of-way are public improvements that shall be dedicated to the city and accepted by the city manager prior to installation.
(c) Fences: Fences in public utility easements, but not in public rights-of-way or public access or emergency access easements, that meet the following criteria:
(1) Are designed and constructed in conformance with section 9-9-15, "Fences and Walls," B.R.C. 1981, and subsection 10-5-2(bb), B.R.C. 1981;
(2) Do not obstruct or impede access to public utilities for construction, reconstruction, and maintenance by the city or authorized agents;
(3) Do not obstruct or impede the conveyance of surface runoff in drainage swales or drainageways;
(4) Maintain a six foot parallel separation from any city-owned and operated underground utility, including, without limitation, water, sewer, and storm sewer mains currently in place, except for easement crossings;
(5) Do not create any encroachment or obstruction of sight distance, as set forth in section 9-9-7, "Sight Triangles," B.R.C. 1981;
(6) Are designed and constructed with materials and in such a manner which permit ease of removal by the property owner or the city in the event such removal is necessary for the maintenance or proper use of the public easement; and
(7) Are covered by the property owner's homeowner's insurance policy at all times.
(d) Paving Material: Paving material or flatwork pursuant to an approved right-of-way construction permit under chapter 8-5, "Work in the Public Right-of-Way and Public Easements," B.R.C. 1981.
(e) Retaining Walls: Retaining walls less than eighteen inches in height, that do not require a subgrade foundation for support.
(Ordinance No. 7224 (2002))
8-6-9 Vacation of Public Rights-of-Way and Public Access Easements.
(a) Application Requirements: An applicant to vacate a public right-of-way or public access easement shall file a written request on forms furnished by the city manager and pay the fee prescribed by section 4-20-43, "Development Application Fees," B.R.C. 1981.
(b) City Manager to Review: The city manager shall review the requested vacation pursuant to the procedures specified in sections 9-4-2, "Development Review Application," and 9-4-3, "Development Review Action," B.R.C. 1981, and if the manager determines that the criteria set forth in subsection (c) of this section have been met, shall advise the planning board of the pendency of such vacation pursuant to charter section 79, prior to submitting a vacation ordinance to the city council.
(c) Findings: Only after a finding that the following criteria have been met may the city council adopt an ordinance granting the requested vacation:
(1) The applicant must demonstrate that the public purpose for which an easement or right-of-way was originally acquired or dedicated is no longer valid or necessary for public use;
(2) All agencies and departments having a conceivable interest in the easement or right-of-way must indicate that no need exists, either at present or conceivable in the future, to retain the property as an easement or right-of-way, either for its original purpose or for some other public purpose unless the vacation ordinance retains the needed utility or right-of-way easement;
(3) The applicant must demonstrate, consistent with the Boulder Valley Comprehensive Plan and the city's land use regulations, either:
(A) That failure to vacate an existing right-of-way or easement on the property would cause a substantial hardship to the use of the property consistent with the Boulder Valley Comprehensive Plan and the city's land use regulations; or
(B) That vacation of the easement or right-of-way would actually provide a greater public benefit than retaining the property in its present status.
(d) State Law: Nothing in this chapter shall limit the city's authority in vacation proceedings pursuant to section 43-2-301 et seq., C.R.S.
(e) Cost of Vacation: In addition to the fee required by subsection (a) of this section, the applicant for the vacation shall be responsible for all costs associated with the preparation of a legal description of the property to be vacated and recording fees for the vacation document.
8-6-10 Vacation of Public Easements.
Vacation of city easements dedicated for any purpose, except public rights-of-way and access easements, may occur:
(a) Through the subdivision process; or
(b) By approval of the city manager upon a determination that no public need exists for such easement. If the city manager approves an easement vacation, it is not effective until thirty days after the date of its approval. Promptly after approving the vacation, the manager will forward to the city council a written report, including a legal description of vacated portion of the easement and the reasons for approval. The manager will publish notice of the proposed vacation once in a newspaper of general circulation in the city within thirty days after the vacation is approved. Upon receiving such report and at any time before the effective date of the vacation, the council may rescind the manager's approval and call up the vacation request for its consideration at a public hearing, which constitutes a revocation of the vacation.
8-6-11 Private Signs on Public Property.
(a) The city manager shall have no authority to grant permission to any private party to post a private sign on any public property, including, without limitation, the public right-of-way.
(b) This limitation shall not be construed to prevent posting of the following types of signs, provided all requirements of this section are satisfied:
(1) Private persons may post signs on public property over which they hold an easement, if such signs identify private utility property placed within the easement, or are allowed pursuant to section 9-9-21, "Signs," B.R.C. 1981, in access easements.
(2) Private persons may post signs on land leased from the city during the term of such lease and not inconsistent with the terms of such lease, provided that such signs would be allowed if placed on private property pursuant to section 9-9-21, "Signs," B.R.C. 1981, but the city manager may lease public land solely for the purpose of a sign only to an adjacent property owner who needs to place some, but not all, of the supports for the sign on public property, and otherwise complies with this chapter.
(3) Private persons may post signs on public property which are incidental to a special event for which specific permission to place temporary structures on or otherwise use the public property has been granted, consistent with any limitation on the size, number, location, or other physical features of such signs imposed in the permit. In determining limitations to be placed on posting signs in a permit on public property, the city manager shall be guided by the provisions of section 9-9-21, "Signs," B.R.C. 1981, as they would apply to limit the size, number, location, and other physical features of signs were the property to be private, but may make reasonable allowance for how the public property, because of its public uses, may differ from private property and thus render inappropriate such limitations. Unless specifically required in the permit, no separate sign permit under section 9-9-21, "Signs," B.R.C. 1981, is required for signs specifically addressed in such permit.
(4) The city manager may permit the posting on or over public property of temporary banners, signs, or other decorations that are in celebration of a special event or occasion occurring in Boulder, sponsored by the city, or connected to Boulder's history, including, but not limited to, an artistic, athletic, charitable, civic, cultural, seasonal, or historical event. Such banners, signs, or other decorations shall be permitted only as attachments to existing electroliers or other public poles and structures. Not more than ten percent of the surface area may be used to identify the name or logo of not more than two sponsoring persons or organizations. The city manager shall promulgate regulations pursuant to chapter 1-4, "Rulemaking," B.R.C. 1981, and shall specify maximum sizes, materials and installation requirements, acceptable banner vendors, insurance requirements, a list of acceptable public property locations that do not conflict with the intent of section 9-9-21, "Signs," B.R.C. 1981, and such other matters as the city manager may deem necessary or desirable. Such regulations shall also identify a system for allocating acceptable public property locations in the event applications for such permits exceed the available locations.
(Ordinance Nos. 6017 (1998); 7463 (2006))
22 Adopted by Ordinance No. 5919.
23 Section 9-9-15, "Fences and Walls," B.R.C. 1981, requires that fences, hedges, and walls be no closer than eighteen inches to sidewalks.
24 Section 42-4-114, C.R.S.