§ 100.35. Building Or Obstruction On Public Streets, Sidewalks, And Right-Of-Way Swale Areas.

(A)   It shall be unlawful for any person to erect, build, construct, deposit, or place on or in any street, or any place where the public has the right of passage, any building, structure, or obstruction of any kind whatsoever, or to enclose any street, park, or other public property. Provided, however, that a receptacle for the actual curbside delivery of mail shall not be prohibited pursuant to this section as long as such receptacle does not exceed five feet in height and is securely mounted on posts no larger than four-inch by four-inch or four and one half-inch diameter wood posts or two-inch diameter standard steel or aluminum pipe buried no more than 24 inches in the ground, and the receptacle for mail is located in a manner which does not obstruct vehicular or pedestrian traffic or pose a public safety hazard.

(B)   Any building, structure, or obstruction abutting or encroaching upon any public street, alley, sidewalk, or right-of-way swale area in the city is hereby declared to be a public nuisance against the welfare and safety of the public, and the owner, or lessee or agent of the owner, or any person responsible for the presence of any such public nuisance shall remove the nuisance or otherwise comply with the exemption requirements of this section, and shall be guilty of a punishable offense for placement of the nuisance, or for failure to remove same, or for both.

(C)   Loose stone, pebbles, pea rock, or similar loose material shall not be placed in the public right-of-way swale area or driveways within the public right-of-way.

(D)   Approved parking areas within the public right-of-way shall comply with § 100.27. Poured concrete, flagstones, and similar materials shall not be used for construction of parking areas and landscaped areas in the public right-of-way. Paved driveways within the public right-of-way for vehicular use shall be constructed of asphalt concrete, poured concrete, paver blocks, turf block or poured Chattahoochee rock surface to grades subject to the approval of the City Engineer. However, in the event the materials are damaged or removed from the public right-of-way as the result of utility construction, repairs, or any other reason, the city shall only be required to replace or restore the paved driveway with asphalt pavement.

(E)   Street trees planted within street swale areas shall be planted in accordance with the city's landscaping requirements located in the Zoning Code, and shall not be placed on top of or within five feet of any existing city utility lines, including individual services. Trees, plants and ground cover shall be planted and maintained so that there is a clear unobstructed vertical sight window provided in an area between two foot and eight-foot four inches above the edge of the public roadway. Trees which are growing and are of a species capable of attaining adequate size to necessitate the vertical sight window, but which are not yet mature enough to provide for same, shall not constitute a violation.

(F)   Limited landscaping may be located in right-of-way street swale areas in single-family residential districts only, provided the following requirements are met:

(1)   Landscaping items, other than street trees, placed by the adjacent property owner or agent in the right-of-way street swale area which are located within six feet of the edge of the adjacent public roadway shall not consist of boulders, rocks, concrete blocks or other similar items, which are more than six inches in height as measured above the elevation of the edge of the adjacent public roadway. All landscaping items within the public right-of-way at a distance greater than six feet off the edge of the public roadway shall be limited to a maximum height of 18 inches above the elevation of the edge of the adjacent public roadway. Concrete pyramids, private electric lines or lights, concrete or wood posts, concrete columns, ponds, fountains or chains shall not be constructed or placed within the public right-of-way.

(2)   The City Engineer must first approve materials and design to confirm that the landscaping, landscaping materials or other items do not impair driving visibility or pose any hazard to public safety, or does not interfere with existing utilities or drainage, or will impede already planned future utilities or sidewalk installation. All such landscaping and items existing in right-of way street swale areas as of the effective date of this section must obtain said approval or shall constitute a violation.

(3)   All landscaping, landscape materials, or items situated in the street swale right-of-way may be removed by the city or its contractors or subcontractors at any time as a result of utility construction or repair, sidewalk construction or repair, or for any other purpose. Neither the city nor its contractors or subcontractors shall be responsible for the replacement of any landscaping or landscaping materials on other items which have been destroyed or removed from city right-of-ways.

(G)   The City Manager shall have authority to authorize exemptions to division (A) above, for non-conforming mailboxes, and divisions (E) and (F) above for trees, landscaping, and related landscaping materials, provided that:

(1)   The applicant submits a written request to the City Manager, which sets forth in detail the requested exemption. Said request shall include a photograph of the location and also photographs of any items in the right-of-way if already existing, or an architect's drawing or other drawing or rendering that accurately depicts proposed items, which are the subject of the requested exemption along with their location in the right-of-way and a specific list of all materials to the utilized.

(2)   The City Manager first confers with the City Engineer to evaluate whether the landscaping, the landscaping materials, or other items proposed for placement in the right-of-way impair driving visibility or pose any hazard to public safety, or interfere with existing utilities or drainage, or could impede already planned, future utilities or sidewalk installation. A finding of any of the above-listed conditions may constitute grounds for denial of the exemption.

(3)   All landscaping, trees, and any landscaping items or materials existing in the right-of-way may be removed at any time by the city, or may be ordered to be removed from the public right-of-way by the adjacent property owner at the owner's expense, upon 30 days written notice from the city, as a result of utility construction, repair, or for any other purpose. Failure to timely remove the required items shall constitute a punishable offense. Removed items which are not permitted to be placed in the public right-of-way under this section, shall not be replaced by the city nor its contractors or subcontractors, including items which were specifically permitted by exemption above.

(4)   The City Manager shall take into consideration the problems posed by landscape maintenance that may arise from the proposed planting in the right-of-way, along with safety hazards of all kinds that may affect the community.

(5)   The owner of adiacent property desiring to place the items in the city right-of-way must enter into a written revocable license agreement with the city which includes, but is not limited to, the terms and conditions found in this division, along with language for the property owner to indemnify and hold the city harmless for any damage or injury caused by the placement of any items in the right-of-way. The City Manager is authorized to enter into any such license agreement on behalf of the city, utilizing a form approved by the City Attorney. Said agreement shall be revocable by the city at any time, for any reason, and shall expire upon a change in ownership of the adjacent property, whereupon all items located in the right-of-way pursuant to the agreement shall he removed or, the new owners may enter into a similar agreement, if approved by the city. Property owners who are a party to any such agreement must disclose and provide a copy of same to any new purchaser of the affected adjacent property. Failure to provide the required notice shall constitute a violation of this section.

Penalty, see § 10.99

Cross-reference:

   Vendors obstructing streets and sidewalks, see § 131.14

   Removal of unauthorized obstructions, see § 100.39

(Am. Ord. 87-38, passed 5-5-87; Am. Ord. 2004-64, passed 9-14-04)