§ 32-5. Placement of items within the city right-of-way.
(a)
Except as provided in subsection (e) below, it shall be unlawful for any person to encumber any portion of the street right-of-way in any manner without first obtaining a license to use the city right-of-way.
(b)
Definitions.
Nonpermanent: An obstruction of the public right-of-way for a private purpose for a period not to exceed sixty (60) days.
Permanent: An obstruction of the public right-of-way for a private purpose for a period in excess of sixty (60) days.
(c)
Permanent license to use.
(1)
All requests for a permanent license to use, prior to a decision being made, shall first be reviewed by the following:
a.
City departments.
1.
Development services department including the building division.
2.
Public works department including the engineering, traffic, and municipal utilities divisions.
3.
Fire chief.
4.
Fire marshal.
b.
Private utility companies as listed below or their successors.
1.
AT&T.
2.
Center Point Energy.
3.
Comcast.
4.
Texas Gas Service.
c.
Subsections (c)(4)a., b., c., d., and e. shall be exempt from the review requirements in subsections (c)(1)a. and b.
d.
Any other agencies that may need to review the proposed application in order to make the appropriate determination.
e.
The landmark commission or historic preservation officer as appropriate, shall approve a certificate of appropriateness, when the request is within a designated historic district.
f.
The planning commission shall hold a public hearing and may either fully approve, approve with conditions/modifications, or deny the license to use when:
1.
The proposed project does not comply with subsection (c)(4);
2.
An objection is received from any of the reviewing bodies listed in subsections (c)(1)a. and b.; or
3.
The director of development services shall reserve the right to forward any application to the planning commission for review. In those circumstances when a public hearing is not required, the director of development services shall approve the license to use.
(2)
All requests for a license to use shall be subject to the following:
a.
The applicant shall obtain an application and required attachments list from the development services department.
b.
An applicant who is not the legal owner of the adjacent property or properties, shall supply the development services department with authorization from the legal owner or owners designating the applicant as authorized agent.
c.
The applicant shall provide a site plan and/or building elevation, or any other documents necessary, to adequately describe the location of the requested of the city right-of-way and its appearance when the work is finished.
(3)
Conditions of approval for all licenses to use.
a.
The license and all of licensee's rights granted are conditioned that owners of utility facilities, whether publicly or privately owned, have at all times access to the property made subject of the license, together with the right to enter the property and excavate for the purpose of repairing, replacing, locating and maintaining such utility facilities, if any.
b.
The license is granted upon the express condition that licensee undertake and promise in writing to hold the city harmless and to indemnify it against all suits, judgments, costs, expenses and damages that may arise or grow out of the use of said street right-of-way and/or the city's granting of the license.
c.
The city does retain the right and option to cancel the license and terminate all rights of the license upon ninety (90) days' written notice of such cancellation and termination, sent to licensee at the last known mailing address; and, licensee agrees and shall be obligated to vacate the property made subject of the license and to remove all improvements and/or obstructions located thereon at licensee's own expense prior to the expiration of said 90-day notification period.
d.
The licensee shall apply for and receive the appropriate permit from the building department, if required.
(4)
Specific conditions of approval by license to use type.
a.
Tables and chairs.
1.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way;
2.
The location of the tables and chairs (located adjacent to the building wall or located adjacent to the curb) shall align with those on adjacent property, if applicable;
3.
The tables and chairs shall be removed from the right-of-way every night at the close of business or by 11:00 p.m., whichever is earlier; and
4.
If the tables and chairs result in an increased parking requirement, the licensee shall provide documentation of how the increased parking spaces will be accommodated.
b.
Potted plants.
1.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way;
2.
The vegetation shall be kept in a healthy, growing, neat and orderly condition, at all times, replacing it when necessary and keeping it free from refuse and debris; and
3.
Watering of the vegetation shall not pose a hazard to pedestrians.
c.
Merchandise displays.
1.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way;
2.
The location of the merchandise shall be located adjacent to the building and may only be placed directly in front of the associated business;
3.
The merchandise shall be removed from the right-of-way every night at the close of business or by 11:00 p.m., whichever is earlier.
d.
Surreys.
1.
Approval shall be limited to placement of surreys in the northerly right-of-way of Seawall Boulevard;
2.
The licensee shall be limited to the placement of one (1) row of no more than seven (7) surreys. The staff shall only grant one (1) license to use per business premises;
3.
The licensee shall designate an area for the placement of the surreys. Such area shall not be located in the paved portion of the right-of-way used for vehicular travel, or parking. The designated area must allow for free passage along the right-of-way, and ensure that the sidewalk is not blocked more than fifty (50) percent;
4.
Licensee shall agree to secure all surreys when not in use.
e.
A-frame (sandwich board) signs.
1.
One (1) sign per establishment, placed directly in front of the associated business, may be permitted;
2.
The maximum area shall be six (6) square feet. The width of the sign shall not exceed two (2) feet and the height of the sign shall not exceed four (4) feet;
3.
Signs may not be illuminated shall be removed from the right-of-way every night at the close of business or by 11:00 p.m., whichever is earlier;
4.
The sign frame shall be painted/stained wood, anodized aluminum or metal only. Windblown devices, including balloons, may not be attached or otherwise made part of the sign;
5.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way;
f.
Street furniture, such as benches, bike racks, etc.
1.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way;
2.
The placement or the use of the items (ex: bike rack) shall not block the entrance to any adjacent land uses.
3.
The street furniture shall be permanently affixed and secured in compliance with all applicable building codes.
g.
Dumpsters.
1.
Only dumpsters located within the Central Business District shall be eligible for administrative review. The Central Business District means the area North of Broadway between 19th Street and 26th Street. All other locations may apply for review by the planning commission.
2.
The licensee shall demonstrate that locating the dumpster on private property is physically unfeasible;
3.
The dumpster shall have working wheels at all times to ensure mobility;
4.
A minimum of ten (10) feet of unobstructed right-of-way shall be maintained at all times;
5.
The licensee shall ensure that all requirements of section 15-4 are met; and,
6.
Dumpsters shall be placed in alley right-of-ways only and not in street right-of-ways.
h.
Architectural features, such as awnings, cornices, and roof overhangs.
1.
A vertical pedestrian clearance of at least eight (8) feet from the sidewalk or right-of-way surface shall be provided.
i.
Underground foundations.
1.
The construction drawings shall be reviewed and approved by the city engineer prior to submission; and
2.
The licensee shall be responsible for any damage to the right-of-way area caused by the installation and maintenance of the underground items. Licensee will promptly repair any damage to the right-of-way be damage.
j.
Canopies.
1.
A vertical pedestrian clearance of at least eight (8) feet from the sidewalk or right-of-way surface shall be provided;
2.
The canopy poles shall be located at least two (2) feet back from the right-of-way curb. A minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way shall be provided;
3.
The base plate and nuts of the anchor bolts of the canopy columns shall remain below or flush with the top of the sidewalk elevation; and
4.
A sidewalk shall be installed along adjacent streets. The width of the sidewalk underneath the canopy shall extend the full width of the right-of-way. Sidewalk areas not located underneath the canopy shall be five (5) feet in width. The sidewalk shall be installed concurrent with the construction of the canopy. This condition may be waived, if the city Engineer determines that the condition of any existing sidewalks is acceptable.
k.
Public art—Tree sculpture.
1.
In order to maintain visibility at street corners, tree sculpture shall not be located within forty-five (45) feet of an intersection with a traffic control sign or within thirty (30) feet of an intersection without a traffic control sign. The tree sculpture shall not be located within fifteen (15) feet of an alley or within ten (10) feet from hydrants, utility poles, and street lights;
2.
The tree sculpture shall be temporary in nature. The city reserves the right to require the licensee remove the sculpture if found to be deteriorated, vandalized or a threat to public safety;
3.
Upon removal of the tree sculpture, the adjacent property owner shall be responsible for removing the tree sculpture in its entirety including the tree stump and return the site to its natural grade.
l.
Subdivision improvements.
1.
The licensee must agree that when and if public and/or private utilities are damaged or are in need of repairs or maintenance, the responsibility to repair the items listed in this license to use agreement will be the developers or the homeowner's association and not the city's;
2.
The cost to install decorative lighting or decorative street signage shall be the developer's responsibility. The monthly costs for the electrical fees and maintenance of the decorative lighting shall be the developer's or homeowners' association's responsibility.
m.
Subdivision or neighborhood identification signage.
1.
The licensee shall conform to this section 32-5 and any regulations regarding sight triangles;
2.
If applicable, the licensee shall pay for the use of paid parking spaces as determined by the finance department;
n.
Construction items and safety fencing.
1.
The licensee shall adhere to the traffic control plan as approved by the city engineer. If the entire width of the sidewalk area is to be closed to pedestrian traffic, the licensee shall provide a shielded pedestrian pathway in the parking area;
2.
If applicable, the licensee shall pay for the use of paid parking spaces as determined by the finance department;
3.
The licensee shall provide a proposed timeline for the completion of the construction project and the license to use shall expire at the end of the proposed timeline.
4.
The construction site shall be secured at the end of each work day, to prevent trespassing;
5.
The licensee shall be responsible for repairing any damage to the right-of-way area caused by the installation and maintenance of the requested items. Such repairs shall be made promptly and in conjunction with applicable city departments;
6.
The cleaning of debris from the site shall be the responsibility of the licensee; and
7.
The licensee shall locate all existing utility lines located at the site, prior to the temporary closure of the sidewalk and any on-street parking. The licensee shall contact the department of public works and the private utility companies for line locations, prior to any work at the site.
o.
Residential ADA ramps.
1.
The licensee shall demonstrate that locating the ADA ramp on private property is physically unfeasible;
2.
The ADA ramp must remain at all times bolted and secured to the adjacent structure, with the exception that the ramp is removed from the location in order to allow the property owner, city departments and/or private utility companies to gain access to the right-of-way;
3.
The ADA ramp shall be constructed of wood or similar material, in order to be easily removed. The ADA ramp shall be removed at such time that it is no longer needed; and
4.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way.
p.
Minimal residential encroachments (ex: porches and stairs on older houses).
1.
The licensee shall demonstrate that the encroachment of the right-of-way has been in place for a period of fifty (50) years or greater;
2.
The licensee shall maintain a minimum of five (5) feet of unobstructed pedestrian access within the subject city right-of-way;
3.
The licensee must agree that when and if public and/or private utilities are damaged or are in need of repairs or maintenance, the responsibility to repair the items listed in this license to use agreement will be the licensee's or adjacent landowner and not the city's; and
4.
The licensee shall be responsible for repairing any damage to the right-of-way area caused by the installation and maintenance of the requested items. Such repairs shall be made promptly and in conjunction with applicable city departments.
(5)
Fees.
a.
The applicant fee shall be fifty dollars ($50.00) and shall be submitted to the development services department along with the completed application form. If the application requires review by the planning commission, an additional fee of seventy-five dollars ($75.00) will be required.
b.
For subsections (c)(4)f., g., h., i., and k., the licensee shall pay to the city a one-time fee for the licensee to use city right-of-way. The fee shall be fifty dollars ($50.00) for the first one thousand dollars ($1,000.00) of work valuation and twenty-five dollars ($25.00) for each additional one thousand dollars ($1,000.00) of work valuation or fraction thereof.
c.
Annual renewal permit fees shall be ten dollars ($10.00) for the first ten (10) linear feet or fraction thereof plus one dollar ($1.00) for each additional linear foot or fraction thereof. Any renewal fee less than fifty dollars ($50.00) shall be automatically waived, by the director of development services. The licensee for a permit or extension of a permit shall not be entitled to a refund of any portion of the permit fees in the event the permit application or application for extension is rejected, or in the event the permit is revoked. This section shall not apply to renewal fees for canopies.
d.
Annual renewal permit fees for canopies shall be fifty dollars ($50.00).
(6)
Renewal permit.
a.
The licensee shall submit the renewal fee, if required, on an annual basis to the department of development services. The renewal fee shall be due on the anniversary of the date of the issuance of the license to use. The provisions of this subsection (5) shall not apply to licenses-to-use agreements issued before October 1, 1998. Each license-to-use agreement shall be valid for one (1) year from the date of issuance. Not less than thirty (30) days, nor more than sixty (60) days, before the expiration of the permit, the licensee must apply for an extension of the permit. The application for extension shall be submitted to and in the manner prescribed by the development services department. The extension must be accompanied by the applicable permit renewal fee. Upon approval, the development services department shall issue a renewal permit, which shall be valid for one (1) year from the date of issuance, or such other time as may be provided by state law.
b.
The city shall automatically revoke any permit that is not renewed timely as set forth in this section within sixty (60) days of the due date. In the event a license-to-use is revoked for failure to timely renew the license, the applicant must apply for a new permit, as if a permit had never been issued.
(7)
Revocation.
a.
If the director of development services determines that a licensee has failed to comply with the terms of the license, the licensee shall be given a reasonable period of time in order to comply, not to exceed sixty (60) calendar days. The director of development services shall notify the licensee in writing of the failure to comply and the timeframe for compliance.
b.
If the licensee fails to comply within the allotted timeframe, the director will revoke the license to use. The licensee shall be responsible for the removal of all items located in the right-of-way upon revocation of the license to use.
c.
The director of development services shall notify the licensee in writing of the revocation and include in the notice the reason for the revocation, the date the revocation is effective, and a statement informing the licensee of the requirement that all items be removed from the right-of-way.
d.
If the licensee fails to remove the items from the right-of-way upon revocation, per section 32-8 of this Code, the city may remove any items unlawfully located in the right-of-way. The cost of the removal of the items from the right-of-way by the city shall be the responsibility of the licensee.
(8)
Appeal.
a.
Appeals from final decisions of city staff regarding permanent licenses to use are heard by the planning commission.
b.
Appeals from final decisions of the planning commission shall be heard by the city council.
c.
Appeals must be filed with the director of development services or designee within ten (10) calendar days of the denial.
(d)
Nonpermanent license to use.
(1)
When a proposed application for license to use does not or will not adversely affect the city or block or obstruct the street, alley, sidewalk or other city right-of-way, the city manager, or his or her designee, may either approve, approve with conditions or with modifications, the license to use.
(2)
All requests for a license to use, prior to a decision being made, shall first be reviewed by the following:
a.
City departments.
1.
Development services department.
2.
Public works department.
3.
City engineering, division of public works department.
4.
Traffic and transportation department.
b.
Any other agencies that may need to review the proposed application In order to make an appropriate determination.
(3)
All requests for a license to use shall be subject to the following:
a.
The applicant shall obtain application and required attachment list from public works department. Completed application with attachments and a fee of ten dollars ($10.00) shall be submitted to the public works department for review.
b.
An applicant, who is not the legal owner of the adjacent property or properties, shall supply the public works department with authorization from the legal owner or owners designating the applicant as authorized agent.
c.
The applicant shall provide a site plan and/or building elevation, or any other documents necessary, to adequately describe the location and the use of the city right-of-way and its final appearance when complete.
(4)
City manager approval. When the application for license to use does not or will not adversely block, obstruct or affect the street, alley, sidewalk or their city right-of-way and after receiving no objection or no objection with conditions, the city manager may approve, approve with conditions or with modification, the license to use.
(5)
If the license to use is approved, the city shall issue to the applicant a letter of approval stating the license to use has been approved listing any and all conditions placed upon the approval.
(6)
Conditions of approval.
a.
The license and all of the licensee's rights granted are conditioned that owners of utility facilities, whether publicly or privately owned, have at all times access to the property made subject of the license, together with the right to enter the property and excavate for the purpose of repairing, replacing, locating and maintaining such utility facilities, if any.
b.
The license is granted upon the express condition that licensee undertake and promise in writing to hold the city harmless and to indemnify it against all suits, judgments, costs, expenses and damages that may arise or grow out of the use of said street right-of-way and/or the city's granting of the license.
c.
The city does retain the right and option to cancel the license and terminate all rights of licensee upon notice of such cancellation and termination, and, licensee agrees and shall be obligated to vacate the property made subject of the license and to remove all improvements and/or obstructions located thereon at licensee's own expense.
d.
The licensee shall pay to the city a fee for the license to use the city right-of-way. The fee shall be five dollars ($5.00) for each day to a maximum fee of one hundred dollars ($100.00).
1.
This section shall not apply to license fees and renewal fees for median beautification projects.
e.
The licensee shall provide for and pay all expenses for traffic control and safety devices arising and required because of the use as required by the public works department and inspection for compliance by public works division of traffic safety.
(e)
Exceptions.
(1)
Upon approval by the director of public works, persons who wish to place city approved bins for the storage of city garbage containers on city rights-of-way west of 7½ Mile Road shall not be required to obtain a license-to-use. The property owner shall place the bin on city right-of-way as directed by the director of public works.
(2)
Permission is granted to abutting property owners or their agents ("the property owner") to plant tree and palm species that are listed on the table annexed hereto in the city's street right-of-way easement, not alleys, in compliance with this provision without the necessity of obtaining a license to use:
a.
The property owner assumes responsibility and liability for all claims of personal injury or death, or property damage due to planting trees or palms in the city's right-of-way.
b.
The property owner must first locate all underground utility lines including underground city water and sewer mains or service lines by calling the department of public works and by calling 811 to obtain the location of gas, electric, and other underground service lines. Planting is not permitted over these underground utilities.
c.
Planting of large/medium trees is allowed in tree lawns that are between four (5) and seven (7) feet wide.
d.
Only small trees and palms may be planted in tree lawns less than five (5) feet wide, or in tree lawns with overhead power or service lines.
e.
Tree planting in the tree lawn must be at least two and one-half (2½) feet and no more than three and one-half (3½) feet from the curb; it is recommended that planting be in the center of the tree lawn.
f.
Trees and palms must be planted at least forty-five (45) feet from the corner curb on the side of streets having a traffic control sign.
g.
Trees and palms must be planted at least thirty (30) feet from the corner curb on the side of streets having no traffic control sign.
h.
Trees and palms must be planted at least fifteen (15) feet from alleys along intersecting roadways.
i.
Trees and palms must be planted at least ten (10) feet from hydrants, utility poles, and street lights.
j.
Trees and palms must be planted at least five (5) feet from driveways or walkways other than sidewalks.
k.
Small trees and palms must be planted at least twenty (20) feet apart.
l.
Medium to large trees and palms must be planted at least thirty (30) feet apart.
m.
All trees must have trunk sizes between one (1) and three (3) inches in diameter, or come in fifteen (15) to sixty-five (65) gallon pots at the time of planting.
n.
Palms must be at least five (5) feet (in "brown-trunk-feet") tall.
o.
If there is no sidewalk and the roadway is thirty-two (32) feet wide or less, no trees or palms may be planted within the right-of-way.
p.
No plantings of any kind (trees, palms, flowers, shrubs, etc.) is allowed in alleys.
q.
Tree lawns may not encroach at all upon the minimum five (5) feet of pedestrian access in the right-of-way.
r.
Properties may only have one (1) tree lawn between the property line and the right-of-way.
s.
A written application for a variance from these requirements, with the exception of subsection (t.) below, may be made through the department of development services for administrative approval by its director or through the city's planning commission by request for a license to use. In making his/her administrative determination, the director shall consider intersection visibility and sidewalk accessibility in consultation with the director of public works, the suitability of other tree species, or planting in restricted areas, as well as the benefit to the community provided by planting trees.
t.
No variance or LTU may be requested for items located in the alleyway.
Appendix List of Recommended Trees
Recommended Tree Species for ROW Plantings in Galveston, TXLarge/Medium Trees and Palms live oak (Quercus virginiana) baldcypress (Taxodium distichum) Montezuma baldcypress (Taxodium mucronatum) cedar elm (Ulmus crassifolia) pecan (Carya illinoinensis) magnolia (Magnolia grandiflora) bur oak (Quercus macrocarpa) overcup oak (Quercus lyrata) Compton's oak (Quercus x comptoniae = Q. virginiana X Q. lyrata) Mexican sycamore (Platanus mexicana) anacua (Ehretia anacua) Texas ebony (Ebenopsis ebano or Pithecellobium flexicaule) Italian stone pine (Pinus pinea) Texas sabal palm (Sabal mexicana) California fanpalm (Washingtonia filifera) Florida sabal palm (Sabal palmetto) Canary Island date palm (Phoenix canariensis) Small Trees (<20' tall at maturity) yaupon (Ilex vomitoria) crapemyrtle (Lagerstroemia indica) Jerusalem-thorn or retama (Parkinsonia aculeata) desert-willow (Chilopsis linearis) possumhaw (Ilex decidua) Eve's-necklace (Sophora affinis or Styphnolobium affine) orchidtree (Bauhinia spp.) Japanese black pine (Pinus thunbergii) flameleaf sumac (Rhus lanceolata) (f)
Penalty.
(1)
Health and safety violations . Any person, firm or corporation who violates section 32-5 or who fails to comply with any requirement of this section or any license issued under this section relating to fire safety, zoning, or public health and sanitation shall be liable upon conviction by a fine not to exceed the sum of up to two thousand dollars ($2,000.00) per day.
(2)
Other violations . Any person, firm or corporation who violates any provision of these regulations, or who fails to comply with any non-health and safety requirements of these regulations or a license issued under these regulations shall be liable, upon conviction, by a fine not to exceed the sum of up to five hundred dollars ($500.00) per day.
(3)
Separate offenses . Each day a violation is continued shall constitute a separate offense.
(Code 1960, §§ 19-45, 19-46; Ord. No. 80-56, § 1, 7-17-80; Ord. No. 91-15, § 2, 2-28-91; Ord. No. 91-89, § 2, 11-14-91; Ord. No. 93-34, § 2, 4-8-93; Ord. No. 94-18, §§ 2, 3, 3-24-94; Ord. No. 96-38, §§ 2, 3, 3-28-96; Ord. No. 96-48, § 2, 4-18-96; Ord. No. 97-95, §§ 2, 3, 11-13-97; Ord. No. 98-67, § 2, 8-13-98; Ord. No. 99-66, § 2, 8-12-99; Ord. No. 09-066, § 2, 11-5-09; Ord. No. 11-008, § 2, 1-27-11; Ord. No. 12-070, § 2, 12-13-12; Ord. No. 14-028, § 2, 4-10-14 ; Ord. No. 17-061, § 2, 9-14-17 ; Ord. No. 18-056 , § 2(Exh. A), 8-23-18)