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Council OKs changes to rules on right-of-way encroachments

Thursday, August 15, 2013 by Elizabeth Pagano

As of last week, the city is changing the way it deals with permanent encroachments into the public right-of-way.

 

Previously, there were three ways the city dealt with encroachments into the right-of-way. Temporary encroachments, like sidewalk cafes, could be approved by staff through an annually-renewed license. And City Council could approve permanent encroachments through vacations of right-of-way. The third option allowed the city to release public easements for a fee.

 

The new regulations will allow for permanent public encroachments that do not require the city to actually relinquish right-of-way, like in the case of underground parking or structures that hang over public sidewalks. 

 

Under the new process, staff will review agreements for permanent encroachments then submit them to City Council for approval. Developers will be required to pay the appraised value of the encroachment.

 

During the discussion about the proposed ordinance, there was a host of suggested changes. (At one point, Council Member Chris Riley moved to make a friendly amendment to a friendly amendment to an amendment.) But once the details were hammered out, the new ordinance won City Council’s unanimous support.

 

At the work session before the meeting, Council Member Mike Martinez pointed out the city had “creatively used” license agreements for permanent encroachments in the past. The Law Department concurred, but pointed out that strategy was not ideal, and it was more appropriate for City Council to weigh in before approval.

 

Specifically, Council discussed the situation at Plaza Lofts downtown, where a building hanging over the public right-of-way was clearly a permanent improvement, though it was approved through a license agreement. Assistant City Manager Sue Edwards pointed out that the terms of the annual license agreement, which say the city can revoke the license with 90-days notice, were unreasonable for permanent encroachments and made developers uneasy

 

Council Member Laura Morrison pointed out that a public process through City Council would also allow neighbors to weigh in on the encroachment.

 

“We have a lot of development going on downtown right now, and people are being really creative,” said Edwards, pointed to a few examples where architectural creativity meant building over the sidewalk. “It seemed to be a good point to say ‘we really are giving up right-of-way, and we want someone to take notice of that.’ This was a really good tool to do it that way.”

 

An amendment that would have directed the process through the Planning Commission was struck down, only winning the support of Council Members Kathie Tovo and Morrison in a vote of 2-5.

 

“I think it adds too much – another layer, another hoop to jump through,” said Mayor Lee Leffingwell. “I’m going to vote against it knowing that Council always has the ability, in certain cases, to have a particular item directed back to the Planning Commission.”

 

Similarly, a Morrison amendment that would limit appraisals to independent appraisers, and not allow internal city appraisers to evaluate the encroachments, failed on a vote of 2-5 with Tovo and Morrison voting in favor.

 

Though Tovo argued for the importance of “extra scrutiny,” Mayor Pro Tem Sheryl Cole called it an unnecessary cost increase in the process.

 

RECA Director of Public Relations Annie Armbrust was on hand throughout the process, offering perspective on the changes. In the end, she called the new ordinance a “well thought through and a solid policy.”

 

In an email to In Fact Daily, Armbrust wrote, “The balance to be struck was between the vacation and license agreement processes. I believe we got there with a process that necessitates that Council approve the encroachment agreements but does not add the time and cost burden of taking agreements to Planning Commission,”

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