§ 14.40.115. Encroachment permits.

A.

Any person desiring to construct or cause an encroachment on a borough right-of-way shall apply for an encroachment permit to the RSA director. Failure to obtain an encroachment permit is subject to the remedies set forth in KPB 14.40.115(E) and KPB 14.40.300.

B.

A public utility or person who is issued a permit for utility facilities under KPB chapter 14.08 is not required to apply for an encroachment permit.

C.

No encroachment permit is required for construction in accordance with an approved right-of-way construction permit issued pursuant to KPB 14.40.050 as long as the work is consistent with the terms of the construction permit.

D.

A permit fee shall be charged for encroachment permits as provided in the current approved Kenai Peninsula Borough Schedule of Rates, Charges and Fees. A person who fails to apply for and obtain an encroachment permit prior to an enforcement notice being issued pursuant to KPB 14.40.330(A) shall pay a double permit fee.

E.

Unauthorized encroachments shall be subject to removal by the owner upon being given notice by the borough. Notice shall consist of a tag placed on the property allowing 48 hours to remove the encroachment. If the owner does not remove the encroachment after being given such notice, the borough shall remove the encroachment and the person encroaching shall be fined pursuant to KPB 14.40.380 and pay all costs incurred by the borough related to removal of the encroachment. However, the borough may immediately remove any unauthorized encroachment that impedes traffic or maintenance, or which causes a public safety hazard, with no notice to the owner at the discretion of the RSA director.

F.

All encroachments, including those that pre-date the effective date of this ordinance, must apply for an encroachment permit. Permits for encroachments that existed prior to the effective date of this ordinance shall pay the same permit fee as applies to permits received prior to placement or construction of the encroachment.

G.

Any encroachment without a permit may be removed in accordance with KPB 14.40.115(E) or may be granted a permit allowing such encroachment to remain if such encroachment meets the approval of the RSA director or designee.

H.

The RSA director has discretion to grant or deny any encroachment permit. The following standards shall be considered for all encroachment permit applications:

1.

The encroachment may not interfere with road maintenance.

2.

The encroachment may not block access to normal travel along the right-of-way.

3.

The encroachment may not interfere with sight lines or distance.

4.

The encroachment may not create a safety hazard.

5.

The encroachment may not be a permanent structure, meaning any structure of a permanent nature that requires footings, foundations or pilings.

I.

A person may not be denied a reasonable means of access to the their property solely by the requirements of this chapter. An encroachment permit shall not grant the permittee exclusive right to use the area encroached upon.

J.

A permit for construction of an encroachment (not covered by KPB 14.40.060) shall have an expiration date at which time the installation or construction of the encroachment must be complete. The permittee shall file a written notice of completion with the RSA director within ten days after completion of construction. No work shall be performed after the expiration date unless an extension is approved. If an extension is not approved, the borough may require the removal of the encroachment in accordance with KPB 14.40.115(E).

K.

Hold harmless. The permittee shall indemnify, defend, and hold and save the borough, its elected and appointed officers, agents and employees harmless from any and all claims, demands, suits, or liability of any nature, kind or character including costs, expenses, and attorneys fees. The permittee shall be responsible under this clause for any and all legal actions or claims of any character, sustained by any person, or property arising from permittee or permittee's agents' performance or failure to perform this permit in any way whatsoever. This defense and indemnification responsibility includes claims alleging acts or omissions of the borough or its agents, which are said to have contributed to the losses, failure, violations, or damages, except for acts or omissions solely attributable to the borough.

L.

Any damages to a public right-of-way, dedication, easement or borough land which is caused by an encroachment, authorized or unauthorized, are subject to immediate repair by the borough, at the owner's expense. The borough may require the owner to repair the damage within a timeframe specified by the RSA director if notice is given to the owner. The owner shall be subject to a fine as set forth in KPB 14.40.380 and liable for all costs incurred by the borough from the repair, including overhead costs.

M.

The RSA director may revoke an encroachment permit or require removal of a permitted encroachment if at any time the encroachment impacts borough duties such as road construction, improvements or maintenance, or otherwise impairs or impedes public safety or access to the right-of-way. Removal of an encroachment due to revocation of an encroachment permit shall comply with the requirements of KPB 14.40.115(E). Issuance of an encroachment permit does not create a property right in the continuing encroachment.

(Ord. No. 2015-22 , § 1, 8-18-15)