§ 5.4. Encroachment permit required.

Any person desiring to cause, allow or place any encroachment in, under, on or over any public right-of-way, public utility easement or drainage easement, shall file a written application with the Zoning Administrator.

5.41 Procedure. The application shall be accompanied by the applicable fee and shall be in the form prescribed by the Zoning Administrator, and include the following information:

a.

Name and address of applicant, the property owner, any other person responsible for the proposed encroachment, and any contractor or other person who will be making the proposed encroachment;

b.

The proposed location and dimensions of the encroachment;

c.

Nature of the encroachment;

d.

Expected date to begin and the date to complete the work or placement of the encroachment;

e.

A site plan showing the relation of the encroachment to the easement, right of way, and any utility facilities;

f.

A traffic control plan if determined necessary by the Zoning Administrator, including pedestrian and bicycle traffic;

g.

The signature of each applicant, property owner and contractor;

h.

A statement from each affected utility and agency waiving the prohibition for the proposed encroachment and acknowledging that the Zoning Administrator may issue an encroachment permit for the encroachment in the right-of-way or utility easement, subject to any conditions upon which the waiver of the encroachment is granted;

i.

A statement from the property owner and each utility and agency that is waiving the prohibition for the encroachment that "the property owner and each utility and agency waiving the prohibition shall hold the Zoning Administrator and OMPC harmless from any claims against the Zoning Administrator and OMPC resulting from the issuance of the encroachment permit in conformity with the conditions of the waiver"; and

j.

A statement from the property owner that "the property owner shall indemnify and hold each utility and agency waiving the prohibition harmless from any claims against said utility or agency resulting from the issuance of the encroachment permit or any encroachment on the easement or right-of-way."

All required information must be submitted before an application is considered complete. If all materials are not submitted, they will be returned to the applicant along with the filing fee until such time that all submission requirements are met. Failure to obtain all required agency/utility signatures will result in denial of the encroachment permit application. Any decision rendered by the Zoning Administrator may be appealed to the Board of Adjustment.

5.42 Issuance. Within fourteen (14) business days of receiving a complete application, the Zoning Administrator will render a decision to the applicant. In reviewing the application, the Zoning Administrator may consult with the affected utility or agency regarding the application and any proposed condition for the grant of a waiver. If the Zoning Administrator determines that each affected utility and agency has granted a waiver and that the applicant's request will not unreasonably interfere with access to or use of the easement, or right-of-way, by any affected utility or agency, he will issue an encroachment permit, including any conditions upon which the permit is granted. The encroachment permit shall be recorded in the Office of the Daviess County Clerk within thirty (30) days of its issuance and before beginning any work on the proposed encroachment.

5.43 Permit Refusal or Revocation. Any application for an encroachment permit may be denied and any encroachment permit may be modified or revoked, by written order of the Zoning Administrator, effective immediately, and a copy of the order shall be mailed to the permittee(s), owner(s), and each affected party at the address specified in the application or permit, upon any one (1) or more of the following grounds:

a.

Failure to obtain a waiver from each affected utility and agency;

b.

Misrepresentation of any material fact in the application;

c.

Violation of or failure to conform to the terms or conditions of the permit or any waiver;

d.

Violation of or failure to conform to any provision of this article or applicable law; or

e.

If the Zoning Administrator determines at any time that, because of a change in circumstances, modification or removal of all or any part of the encroachment is necessary for any utility or agency to have access to or use of the easement.

The revocation of an encroachment permit shall be filed by the Zoning Administrator in the Office of the Daviess County Clerk.

If an encroachment is placed or being placed in violation of this Ordinance, the Zoning Administrator may issue a Notice of Violation requiring that the encroachment be removed and take any other action authorized by this Article 5 or applicable law.

5.44 Validity. The issuance of an encroachment permit shall not waive any other provision of this article.

5.45 Duration. Every encroachment permit issued shall become invalid unless the work authorized by such permit is commenced within thirty (30) days after its issuance, or if the encroachment authorized is not completed within one hundred eighty (180) days after the work begins. The Zoning Administrator may grant in writing one (1) or more extensions of time for periods not more than thirty (30) days each. Any extension must be requested in writing and must adequately demonstrate justifiable cause for granting the extension.

5.46 Maintenance of Encroachments. The owner and any permittee shall be responsible for all costs associated with the relocation or removal of any encroachment located or placed without an encroachment permit, or for violation of any condition of the encroachment permit, or that becomes necessary to allow access to or use of an easement by any utility or agency for which the easement was created. The owner or permittee will bear all costs of repairing any and all damage to any right of way, easement, utility facilities or public improvements resulting from the owner's or permittee's installation, removal or maintenance of an encroachment. Each owner and permittee assumes all risk of damage to any encroachment placed in a public utility easement or right-of-way and shall have no recourse against any utility or agency for any damage to an encroachment.

( Ord. No. 17-2017, § 3, 8-1-2017 )