CHAPTER VI. PUBLIC PROPERTYCHAPTER VI. PUBLIC PROPERTY\Article 5. Rights-Of-Way

For the purposes of this article, the following words and phrases shall mean:

(a)   Driveway means a place on private property for the operation of automobiles and other vehicles.

(b)   Driveway approach means an area, construction or facility between the roadway of a public street and private property intended to provide access for vehicles from the roadway of a public street to private property. A driveway approach must provide access to something definite on private property such as a parking area, driveway, or a door at least seven (7) feet wide, intended and used for the entrance of vehicles.

(c)   Outside sidewalk line means a line parallel to the property line lying along the edge of the sidewalk nearest the street roadway or curb; or where no sidewalk exists, a line in the street right of way parallel to and four (4) feet from the line of the private property.

(d)   Corner means the point of intersection of the lines of two (2) street curb faces extended into the street intersection.

(e)   Curb parking space means a length of curb equal to twenty (20) feet, where an automobile or other vehicle can park.

(f)   Parcel of land means a lot or lots, or a tract officially registered under one (l)    ownership.

(g)   Curb return means that portion of a curb next to a driveway approach which includes the radius of curvature, or the ramp-type lug on commercial or industrial type pavements and which connects the driveway approach to the street curb.

(h)   Private entrance culvert means any structure erected for the purpose of providing entrance for pedestrians or vehicles to private property from a public street or alley when said street or alley is not curbed and guttered.

(j)    “Public right-of-way” means only the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications or other nonwire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.

(k)   “Occupant” means any person, firm, corporation, association, utility, or entity, which enters upon the right-of-way of the City, or in any manner establishes a physical presence on, upon, in or over the right-of-way of the City, for the purpose of installing, construction, maintaining or operating lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults or appliances, or related facilities or appurtenances thereto.

(Ord. 3012)

It shall be unlawful for any person to cut or remove any curb along a street or alley, except after making application to and receiving a permit from the City Clerk, the fee for which shall be ten dollars ($10.00), to so construct a service driveway in accordance with the plans and specifications filed with and approved by the City Engineer.

All driveway approaches shall be constructed according to the following standards:

(a)   Driveway approaches shall be constructed of permanent, dust-free, hard- type surfacing, not less than six (6) inches thick.

(b)   The existing concrete curb and gutter shall be removed and reconstructed of concrete for the full width of the driveway approach and curb returns.

(c)   No driveway approach shall exceed thirty (30) feet in width, as measured along the outside sidewalk line, except that on streets marked as permanent state or federal highway routes, a driveway approach may be constructed with a maximum width of forty (40) feet upon approval of the City Manager.

(d)   Where more than one (1) driveway approach on a street front serves a single parcel of land, there shall be at least one (1) curb parking space between driveway approaches.

(e)   The sides, edges or curbs of driveway approaches shall be at right angles to the street curb.

(f)   No curb cut, opening or section removed for the purpose of constructing a driveway approach shall exceed fifty-two (52) feet in width.

(g)   No portion of a driveway approach, except the curb return, shall be constructed within eighteen (18) feet of a corner, and in no case closer than two (2) feet to the property line extended.

(h)   The radius of curvature of the curb return shall not exceed the distance between the curb and the outside sidewalk line.

(i)    No driveway approach shall be constructed so as to interfere with municipal facilities such as street lighting poles, traffic signal standards, signs, catch basins, hydrants, crosswalks, bus loading platforms, utility poles, fire alarm supports, underground pipes or ducts or other necessary street structures. The City Manager is authorized to order and effect the removal or reconstruction of any driveway approach which now conflicts with street structures or which will conflict with street structures in the future. The cost of removing or reconstructing or relocating such driveway approaches shall be at the expense of the abutting property owner.

The City Manager may grant in writing variances from the strict application of the provisions of this article, provided that the following conditions are present:

(a)   The variance arises from peculiar physical conditions not ordinarily existing in similar districts in the city or is due to the nature of the business or operation on the abutting property.

(b)   The variance will not adversely affect the public interest, safety, convenience and general welfare or the rights of adjacent property owners or tenants.

(c)   The strict application of the terms of this article will result in an unnecessary hardship on the property owner or tenant.

It shall be unlawful for any person to construct, alter or extend, or permit or cause to be constructed, altered or extended any driveway approach which can be used only as a parking space or area between the curb and private property.

It shall be the responsibility of the interested property owner to provide and maintain any private entrance culvert deemed necessary between the private property and the public street or alley.

The City Engineer shall prepare and keep on file with the City Clerk at all times a schedule of charges for private entrance culverts of various sizes and materials. Said charges shall be substantially equal to and not less than the cost of materials exclusive of installation labor.

Upon the payment in advance of the charges specified in section 6-606 by any property owner, the city shall construct a private entrance culvert for said property owner.

No private entrance culvert shall be constructed or existing private entrance culvert reconstructed by any person without first obtaining from the City Engineer the grade at which said private entrance culvert shall be set and the minimum size of opening required.

Nothing in this article shall be construed to affect the authority of the Governing Body to exercise the provisions of K.S.A. 12-2301, et seq., with respect to culverts at private entrance driveways.

It shall be unlawful, except as hereinafter provided, for any person, firm or corporation to erect, construct, install, place, maintain or allow to remain or to permit the erection, construction, installation, placing, maintenance or remaining of any encroachment upon or above the rights-of-way or any portion thereof of the city connecting link of the Kansas State Highway System, which is Buckeye Avenue from the South City Limits to the center line of North Fourteenth Street.

Any overhang encroachment shall be removed by the owner or persons permitting the erection, construction, installation, placing or maintenance of the same, provided that overhang encroachments are permitted in the "C-4, Central Business District" under the following conditions:

(a)   Awnings, canopies, marquees and similar installations supported wholly from the face of the building shall be permitted, provided that the edge of such encroachment be not less than three feet back of the face of the curb and in conformance with all other provisions of this article.

(b)   Advertising or other similar signs supported wholly from the front of the building shall be permitted to remain in place until such time that they become functionally or structurally obsolete.

(c)   Replacement of obsolete or installation of new advertising or other similar signs attached to the building will be permitted provided that such signs are parallel to the building and the overhang does not exceed one foot.

(d)   In the event the encroachments referred to in (a), (b) and (c) above, by reason of color or placement, obscure or in any way detract from the effectiveness of the highway signs or traffic signals, the city may cause the removal of such encroachments in the manner hereinafter provided for the removal of encroachments in violation of this article.

(e)   The city reserves the right to remove or have removed any encroachment authorized under this section if such removal is deemed necessary to facilitate the movement of traffic; to provide the city or other public utilities with access to public infrastructure; or provide for the public safety, convenience, or necessity in use of public ways and places. The cost of such removal shall be at the sole expense of the property owner.

(Ord. 3320)

Any ground-supported encroachment shall be removed by the owner or persons permitting the erection, construction, installation, placing or maintenance of the same, provided that ground-supported encroachments are permitted in the "C-4, Central Business District" under the following conditions:

(a)   Ground-supported installations shall be permitted in the alleys to provide access to rear building entrances after obtaining a building permit from the city.

(b)   The city reserves the right to remove or have removed any encroachment authorized under this section if such removal is deemed necessary to facilitate the movement of traffic; to provide the city or other public utilities with access to public infrastructure; or provide for the public safety, convenience, or necessity in use of public ways and places. The cost of such removal shall be at the sole expense of the property owner.

(Ord. 3320)

Lease of the right-of-way by owners or lessees of abutting property for the storage of vehicles, placement of portable signs or other private use is hereby prohibited.

It shall be unlawful for any person, firm or corporation to leave or allow to be left any merchandise, goods, equipment, trash receptacles or similar personal property displays on any sidewalk or street right-of-way for a period of time longer than necessary for the loading or unloading of the same, provided that the City Manager may grant a permit for such uses as follows:

(a)   A permit may be granted when such use of a sidewalk or street right-of- way is for the purpose generally used by merchants on any planned programmed sale day entered into by a majority of the merchants by and through the Chamber of Commerce or other established trade promotional organizations. Said event shall not extend for a period of more than two (2) days.

(b)   A permit may be granted when such use is by an individual merchant for special promotional events, and grand openings. Said event shall not extend longer than one (1) day, and shall not be granted to the same business more than one (1) time per year.

(c)   Said permits shall require that the sidewalk or street right-of-way shall not be totally obstructed and shall provide for safe passage of pedestrian and handicap traffic.

(d)   Privately-owned outdoor furniture and limited, incidental merchandise displays shall be allowed on public sidewalks abutting buildings with zero-foot setbacks in the B-5 (Central Business) District when in compliance with the following:

(1)   Outdoor furniture shall include only tables, benches, chairs, umbrellas and planters which enhance the appearance of the downtown.

(2)   Outdoor furniture and merchandise may be placed on public sidewalks adjacent to the owner’s business, provided that a minimum unobstructed walkway space of six feet in width shall be preserved for pedestrian use and to comply with provisions of the Americans with Disabilities Act.

(3)   Outdoor furniture and merchandise may be displayed only during business hours of the subject business, with the exception of planters and benches.

(4)   The owner of said outdoor furniture and merchandise shall indemnify the city from any liability resulting from the location of this private property on the public sidewalk.

(5)   No outdoor furniture or merchandise shall obstruct the vision or mobility of pedestrians or motorists on adjacent streets, and shall be subject to removal by the city.

(6)   Outdoor furniture shall be for customer and/or public use.

(7)   No alcoholic liquor or cereal malt beverage shall be served or consumed on the public sidewalks.

(e)   Privately-owned free-standing moveable signs shall be permitted on public sidewalks adjacent to buildings with zero-foot setbacks within the B-5 (Central Business) District, without a sign permit, when in compliance with the following:

(1)   The sign face and frame shall be no more than three feet wide or more than four feet high.

(2)   Signs may be placed on public sidewalks, provided that a minimum unobstructed walkway of six feet in width shall be preserved for pedestrian use.

(3)   Only one moveable sign shall be displayed on any business frontage abutting a public street.

(4)   Signs may only be displayed during business hours of the subject business and shall be removed at other times.

(5)   Signs shall not be illuminated.

(6)   Signs shall only occupy public areas abutting the owner’s business location.

(7)   No off-premises signs are permitted.

(8)   No sign shall obstruct the vision or mobility of pedestrians or motorists on adjacent streets, and shall be subject to removal by the city.

(9)   The owner of any private sign displayed on a public sidewalk shall indemnify the city from any liability resulting from the location of a sign on the sidewalk.

(10) The City Building Code Official or other designee may be empowered by the City Manager to enforce the provisions of this policy.

(Ord. 2887)

Whenever any encroachment exists, in violation of the provisions of this article, the City Clerk shall forthwith issue notice requiring removal of such encroachment within the time specified in such notice. If the owner of such encroachment or an agent is known, such notice shall be a written notice, served in person or by mail upon such owner or agent. If the owner or agent is unknown, such notice shall be published once in the official city newspaper. If the owner or his agent shall fail or refuse to remove the encroachment within the time fixed in the notice, the city shall cause the encroachment to be removed.

Any person, firm, corporation, association, utility, or entity, or agent, contractor or subcontractor thereof, violating any provision of this article, shall be guilty of a municipal offense, and shall upon conviction be subject to a maximum fine of $500.00. Each day of violation shall constitute a separate and distinct offense.

(Ord. 3012)

(a)   Authorization From City Required.

(1)   No person, firm, corporation, association, utility, or entity, shall enter upon the right-of-way of the City, or in any manner establish a physical presence on, upon, in or over the right-of-way of the City, for the purpose of installing, construction, maintaining or operating lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults, or appliances, or related facilities or appurtenances thereto, without the express written permission of the City. The permission of the City may be granted by a franchise agreement pursuant to the provisions of K.S.A. 12-2001 et seq. or by such other agreement as the governing body determines best protects the public interest in the right-of-way.

(2)   Nothing in this section shall be interpreted as granting an occupant the authority to construct, maintain, or operate any facility or related appurtenance on property owned by a city outside of the public right-of-way.

(3)   The City shall process each valid and administratively complete application for use of the right-of-way within 30 days.

(b)   Health, Safety, and Welfare Regulations.

(1)   The authority of a provider to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety, and welfare requirements and regulations of the City.

(2)   If the City denies a request to use or occupy a specific portion of the public right-of-way, the requester shall be served a notice of such denial by first class mail. The notice shall indicate that the requester shall have 10 days from the date of the receipt of the notice to request a public hearing by the City governing body concerning the denial. Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest the denial before the governing body. The hearing shall be held by the governing body within 30 days after the filing of the request therefore, and the potential occupant shall be advised by the City of the time and place of the hearing. Following the public hearing, if the City governing body denies a potential occupant’s request to use or occupy a specific portion of the public right-of-way, such determination may be appealed to district court.

(c)   Compliance With Manual of Uniform Traffic Control Devices. Any occupant of the public right-of-way shall comply with the provisions of Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility, and Incident Management Operations Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), published by the U.S. Department of Transportation, Federal Highway Administration, 1988 Edition, Revision 3, dated September 3, 1993, which is incorporated herein by reference as if fully set forth herein.

(d)   Emergencies. If there is an emergency necessitating response work or repair, any person, firm, corporation, association, utility, or entity which has been granted permission to occupy the public right-of-way may begin that repair or emergency response work or take any action required under the circumstances, provided that the person, firm, corporation, association, utility, or entity notifies the City promptly after beginning the work and timely thereafter meets any permit or other requirement had there not been such an emergency.

(e)   Repair. Any occupant of the public right-of-way is hereby required to repair all damage to a public right-of-way caused by the activities of that occupant, or of any agent affiliate, employee, or subcontractor of that occupant, while occupying, installing, repairing, or maintaining facilities in a public right-of-way and to return the right-of-way to its functional equivalence before the damage pursuant to the reasonable requirements and specifications of the city. If the occupant fails to make the repairs required by the city, the city may effect those repairs and charge the occupant the cost of those repairs.

(f)   Relocation. Whenever requested by the City, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, an occupant promptly shall remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the political subdivision. Such relocation or adjustment shall be completed as soon as reasonably possible within the time set forth in any request by the City for such relocation or adjustment. Any damages suffered by the City or its contractors as a result of such occupant’s failure to timely relocate or adjust its facilities shall be borne by such occupant.

(g)   Fees. The following fees shall be assessed against occupants of the public right-of-way:

(1)   A permit fee of $10.00;

(2)   An inspection fee of $25.00;

(3)   Repair and restoration costs associated with repairing and restoring the public right-of-way because of damage caused by the provider, its assigns, contractors, and/or subcontractors in the right-of-way; and

(4)   A performance bond, in a form acceptable to the city, from a surety licensed to conduct surety business in the state of Kansas, insuring appropriate and timely performance in the construction and maintenance of facilities located in the public right-of-way.

(h)   Indemnity.

(1)   Occupants shall indemnify and hold the City and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the occupant, any agent, officer, director, representative, employee, affiliate, or subcontractor of the provider, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way.

(2)   The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the City, its officers, employees, contractors, or subcontractors. If an occupant and the City are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the City under state law and without waiving any defenses of the parties under state or federal law.

(3)   This section is solely for the benefit of the City and occupant and does not create or grant any rights, contractual, or otherwise, to any other person or entity.

(i)    Claim Notification. An occupant shall promptly advise the other in writing of any known claim or demand against the provider or the City related to or arising out of the occupant’s activities in a public right-of-way.

(Ord. 3012)