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HomeMy WebLinkAbout2020/11/10-Attachments-FINAL Encroachment Ordinance 10-22-2020.PDFORDINANCE NO. AN ORDINANCE AMENDING THE FORT WORTH BUILDING CODE OF THE CITY OF FORT WORTH, BY AMENDING CHAPTER 7 "AMENDMENTS," CHAPTER 32 "ENCROACHMENT INTO THE PUBLIC RIGHT-OF-WAY" DIVISION III, "PERMANENT ENCROAHCMENTS" TO INCLUDE NEW LANGAUGE TO CATEGORIZE ENCROACHMENTS INTO TIERS AND TO PROVIDE CORRESPONDING REQUIREMENTS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY CLAUSE; PROVIDING FOR PUBLICATION IN PAMPHLET FORM; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE WHEREAS, on September 25, 2012 the City Council of Fort Worth adopted Ordinance No. 20425-09-2012 to amend section 3210 of the Fort Worth Building Code to allow staff administrative authority to approve certain encroachment agreements thereby reducing the processing time and the documentation sent to the City Council for consideration, provide for application fees and to establish an annual fee for permanent encroachments into public property; and WHEREAS, on July 22, 2014 the City Council of Fort Worth adopted Ordinance No. 21343-07-2014 to further amend section 3210 of the Fort Worth Building Code to provide that the annual fee is limited to City property and rights -of -way and is not applicable to City -owned easements; and WHEREAS the City Council of Fort Worth has determined that it is appropriate to establish a tiered system for encroachments onto City property, including easements and rights - of -way and to revise requirements for newly established tiers, include insurance requirements and applicability of fees for such encroachments. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS, AS FOLLOWS: SECTION 1. Section 7-47, "Amendments" of the Building Code of the Code of the City of Fort Worth (2015) is hereby amended to revise Division III, Permanent Encroachments, Sections 3209, 3210 and 3211 to establish a tiered categorization of encroachments into public property, to revise insurance and fee requirements, and reorder and renumber the remaining subsections, to read as follows: Sec. 7.47-Ch 32 Encroachment Amend 2020 Ordinance No. Page 1 of 7 DIVISION III: ENCROACHMENT OF PUBLIC PROPERTY PERMANENT ENCROACHMENTS 3209 General. No part of any building or structure, or any appendage thereto, shall permanently project into, over, or under any public property, easement, or right-of-way except as authorized by this chapter. Exceptions: 1. Environmental monitoring wells when approved by City Council or the authority delegated to the Department of Code Compliance. 2. Backflow protection devices when approved by the authority delegated to the Water Department. 3. Private irrigation lines located along residential local streets. 4. Any encroachment that the Director of the Development Services Department determines (1) existed before the City's ownership interest of the public property and (2) does not interfere with the public purpose and use of the public property. 3210 - Encroachment Agreement Required 3210.1 General. All permanent encroachments into public property, including public right- of-way and easements, shall require a duly executed Encroachment Agreement. 3210.2 Authority. The Director of the Development Services Department is hereby authorized to execute Encroachment Agreements on behalf of the City, except when the encroachment into public property is a Tier III Major Encroachment, as described in Section 3210.3.3 below. Tier III Major Encroachments must be approved by City Council. 3210.3 Encroachment Tiers. All permanent encroachments into public property, inclusive of public right-of-way and easements, shall be categorized and divided into the following tiers: 3210.3.1. Tier I Minor Encroachments. Minor Encroachments are those that, by their size or construction method, are simple in nature, that may be removed from the public property in a short period of time, and that have only a minor impact on public property. An aerial encroachment shall not be considered a Tier I Minor Encroachment if it projects more than twelve inches over, into, or above the public property. However, an aerial encroachment located at least eight feet above grade level shall be considered a Tier I Minor Encroachment if it projects no more than four feet over the public property and is fully supported by a building or other structure not located on public property. Tier I Minor Encroachments include, but are not limited to, those shown in the accompanying table. Sec. 7.47-Ch 32 Encroachment Amend 2020 Ordinance No. Page 2 of 7 Tier I Minor Encroachments Arcades Marquee signs Awnings Planters Bay windows and oriels Private irrigation lines located along Benches thoroughfares or arterial roadways unless Bicycle racks included under a separate agreement with the Blade signs City Canopies Public art installations Cornices and sills Stoops and stairs Door swings Security cameras and appurtenances Eaves Sustainable landscaping such as xeriscaping, Handicap ramps rain gardens and bio-swales Trash receptacles Tier I Minor Encroachments shall not require an annual fee. In accordance with Risk Management policy, each Tier I Minor Encroachment Agreement shall require proof that the applicant has secured and paid for a policy of public liability insurance covering all public property on which the encroachment is located during construction and continuing through the entire term of the Encroachment Agreement. The amount of insurance coverage shall be at least the maximum amounts of liability that can be imposed upon the City under State law. Each insurance policy shall provide that it cannot be canceled or amended without at least thirty (30) days advanced written notice to the City. Insurance shall be maintained for the length of the Encroachment Agreement. 3210.3.2. Tier II Standard Encroachments. Standard Encroachments are those that are larger or more complex in nature than Tier I Minor Encroachments, but not as substantial or complex as Tier III Major Encroachments. Tier II Minor Encroachments include, but are not limited to, those shown in the accompanying table. Tier II Standard Encroachments Balconies Retaining Walls Dumpsters Storm Drains Fences Private water lines Gates Tier II Standard Encroachments shall require a non-refundable application fee and, for as long as the approved encroaching improvement exists, an annual encroachment fee as specified in Table I-F in section 119 of the Building Administrative Code. However, for Tier II Standard Encroachments, the annual fee shall not be applied to encroachment improvements on City -owned easements. In accordance with Risk Management policy, Each Tier II Standard Encroachment Sec. 7.47-Ch 32 Encroachment Amend 2020 Ordinance No. Page 3 of 7 Agreement shall require proof that the applicant has secured and paid for a policy of public liability insurance covering all public property on which the encroachment is located during construction and continuing through the entire term of the Encroachment Agreement. The amount of insurance coverage shall be at least the maximum amounts of liability that can be imposed upon the City under State law. Each insurance policy shall provide that it cannot be canceled or amended without at least thirty (30) days advanced written notice to the City. Insurance shall be maintained for the length of the Encroachment Agreement. 3210.3.3. Tier III Major Encroachments. Major Encroachments are those encroachments that, due to their size, complexity, or construction method, have a substantial impact on public property or those that utilize a significant portion of the public property, easement, or right-of-way and are not included in a separate agreement with the City. Tier III Major Encroachments include, but are not limited to, those shown in the accompanying table. Tier III Major Encroachments Basements Tunnels Parking structures Underground walkways Sky bridges Tier III Major Encroachments shall require a non-refundable application fee and, for as long as the approved encroaching improvement exists, an annual encroachment fee as specified in Table 1-F in section 119 of the Building Administrative Code. However, for Tier III Major Encroachments, the annual fee shall not be applied to encroachment improvements on City -owned easements. In accordance with Risk Management policy, each Tier III Major Encroachment Agreement shall require proof that the applicant has secured and paid for a policy of public liability insurance covering all public property on which the encroachment is located during construction and continuing through the entire term of the Encroachment Agreement. The amount of insurance coverage shall be at least the maximum amounts of liability that can be imposed upon the City under State law. Each insurance policy shall provide that it cannot be canceled or amended without at least thirty (30) days advanced written notice to the City. Insurance shall be maintained for the length of the Encroachment Agreement and evidence of such insurance coverage must be provided to the City on an annual basis during the term of the Encroachment Agreement. 3210.3.4. The Director of the Development Services Department or Building Official shall, upon request of an interested party, make a determination of the degree of encroachment into or on to public property to determine the appropriate tier category and requirements. 3210.4 Application. The applicant shall execute an Encroachment Agreement with the City upon forms furnished by the Building Official or designee. The forms for such an agreement shall be approved from time to time by the City Attorney's Office. Executed forms shall be filed in the real property records of the applicable county, and kept and maintained in the offices of the City Secretary. Sec. 7.47-Ch 32 Encroachment Amend 2020 Ordinance No. Page 4 of 7 3210.5 Insurance. In accordance with Risk Management policy, each Encroachment Agreement shall require proof that the applicant has secured and paid for a policy of public liability insurance covering all public property on which the encroachment is located during construction and continuing through the entire term of the Encroachment Agreement. The amount of insurance coverage shall be at least the maximum amounts of liability that can be imposed upon the City under State law. Each insurance policy shall provide that it cannot be canceled or amended without at least thirty (30) days advanced written notice to the City. Insurance shall be maintained for the length of the Encroachment Agreement. For Tier III Major Encroachments, evidence of such insurance coverage must be provided to the City on an annual basis during the term of the Encroachment Agreement. 3210.6 Plans. Each Encroachment Agreement shall be accompanied by a plan showing the nature and location of the encroachment and amount of public property to be occupied with details of the structure of encroachment and shall include any additional information requested by the department affected by the encroachment. 3210.7 Application Fee. Each application for an Encroachment Agreement shall require a non-refundable application fee as specified in Table 1-F in section 119 of the Building Administrative Code. 3210.8 Annual Fee. For Tier II Standard Encroachments and Tier III Major Encroachments, for as long as the approved encroaching improvement exists, the property owner shall be responsible for payment of an annual encroachment fee as specified in Table 1-F in section 119 of the Building Administrative Code. For Tier II Standard Encroachments and Tier III Major Encroachments, the annual fee shall not be applied to encroachment improvements on City -owned easements. Tier I Minor Encroachments shall not require an annual fee. 3211 - Permits. Approval of the Encroachment Agreement does not eliminate the need for proper permits to do work as required by any other provision of the City code or other law or regulation. No work may commence without all necessary permits as required by applicable City Code or other law or regulation. 3212 - Signs. Advertising signs projecting into public property are to be considered a permanent occupancy of public property, provided however, upon the termination of the Encroachment Agreement such signage shall be removed from public property. Exception: An identification sign displayed as part of the marquee, provided the sign contains no off -premise advertising, is displayed to identify or locate the building or place of business and the height of the message does not exceed three (3) feet. Signs that are covered by existing Encroachment Agreements shall have those Encroachment Agreements become null and void when a sign is altered in size, removed or requires structural repair. SECTION 2. Sec. 7.47-Ch 32 Encroachment Amend 2020 Ordinance No. Page 5 of 7 This ordinance shall be cumulative of all provisions of ordinances and of the Code of the City of Fort Worth, Texas (2015), as amended, except where the provisions of this ordinance are in direct conflict with the provision of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3. It shall be unlawful for any person to erect, construct, enlarge, alter, repair, move, improve, remove, convert, demolish, equip, use, occupy, or maintain any building or structure in the City or cause the same to be done contrary to or in violation of any of the provisions of this Code. Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine not to exceed Two Thousand Dollars ($2,000.00) for all violations involving fire safety, or public health and sanitation and shall be fined not more than Five Hundred Dollars ($500.00) for all other violations of this ordinance. Each day or any portion thereof which any violation of this ordinance occurs or continues shall be deemed a separate offense and upon conviction thereof shall be punishable as herein provided. SECTION 4. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses, and phrases of this ordinance are severable, and, if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared void, ineffective, or unconstitutional by the valid judgment or final decree of any court of competent jurisdiction, such voidness, ineffectiveness, or unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such void, ineffective, or unconstitutional phrase, clause, sentence, paragraph, or section. SECTION 5. This ordinance constitutes a digest and revision of the Building Code of the City of Fort Worth, as provided in Section 2, Chapter XXV and Section 9, Chapter XXVII, of the Charter of the City of Fort Worth. The Development Services Department of the City of Fort Worth, Texas, is hereby authorized to publish this ordinance in pamphlet form for general distribution among the public, and the operative provisions of this ordinance, as so published, shall be admissible in evidence in all courts without further proof than the production thereof, as provided in Chapter XXV, Section 3, of the Charter of the City of Fort Worth, Texas. SECTION 6. The City Secretary of the City of Fort Worth, is hereby directed to publish the caption, penalty clause, and effective date of this ordinance for two (2) days in the official newspaper of the City of Fort Worth, Texas as authorized by Section 2, Chapter XXV of the Charter of the City of Fort Worth, Texas and by Section 52.013(a) of the Texas Local Government Code. Sec. 7.47-Ch 32 Encroachment Amend 2020 Ordinance No. Page 6 of 7 SECTION 7. This ordinance shall take effect upon adoption and publication as required by law. APPROVED AS TO FORM AND LEGALITY: Matthew Murray Assistant City Attorney Adopted: Effective: Sec. 7.47-Ch 32 Encroachment Amend 2020 Mary Kayser, City Secretary Ordinance No. Page 7 of 7