May 20, 2017 6:15 p.m.
An often challenging issue for many municipalities is what is defined as the public right-of-way. A right-of-way (ROW) is a right to make a way over a piece of land, usually to and from another piece of land. A right of way is a type of easement granted or reserved over the land for not only transportation purposes, such as for a road, a public path, rail transport, etc., but also for other infrastructure, such as electrical transmission lines, water and sewer mains, and gas pipelines. The right-of-way is reserved for the purposes of maintenance or expansion of existing services with the right-of-way.
Many people assume that the right-of-way associated with streets is limited to the street itself. In fact, rights-of-way are commonly much wider- in some areas of the City, while the street may be less than thirty-feet wide, the right-of-way is actually eighty-feet wide. A very general rule-of-thumb for the demarcation of private property and the public right-of-way is to examine the location of utility poles: those poles are typically located approximately five or six feet into the right-of-way.
Issues tend to occur when City (or other governmental) services or projects in the right-of-way are implemented. Many property owners treat the portion of a right-of-way as part of their private property. Abutting property owners may install landscaping, irrigation systems, driveways, or other amenities on property that is not technically theirs. For the most part, such encroachments are overlooked, but when needed, the City (County, State, federal governments) can assert ownership utilize the property. Two recent activities highlight this issue.
A well-intentioned S. Fletcher Avenue property owner installed landscaping and an irrigation system in a City beach access. Most of the City’s beach accesses are rights-of-way associated with undeveloped roads. In late 2015, the City Commission amended the City Code to require pre-approval by the City Commission of encroachments into public rights-of-way, including beach accesses. The specific City Code states:
Sec. 70-2. – Encroachments in the public right-of-way.
(a) Encroachments in the public right-of-way prohibited without permit.
(l) No person or corporation shall place, affix, or cause to be placed or affixed any encroachment in the right-of-way without first obtaining permit therefore. Any encroachment not specifically authorized by the city commission or placed without a permit shall be subject to immediate removal by the city in the interests of the public health, safety and welfare.
(2) No sales or display of goods for sale shall be permitted in the public right-of-way.
(1) Encroachment means any object which intrudes into the public right-of-way on either
a temporary or permanent basis, but does not include newsracks.
(2) Public right-of-way means any public street, highway, sidewalk, parkway or alley.
(c) Permits for use of right-of-way—Duration; renewal.
(1) A permit allowing the encroachment on public right-of-way shall be required prior to any installation. Permits may be granted on any annual basis, and may be renewed if the encroachment does not unreasonably restrict the public use of the right-of-way and the encroachment is necessary to accomplish the objective for which it is requested in a reasonable manner. The permit fee shall be set by resolution of the city commission.
Based upon the intentions of, correspondence with, and apologies from the involved property owner, the City Commission approved the encroachment after-the-fact. As part of that approval, the City Commission directed City staff to inform all property owners abutting beach accesses of the current City Code. A copy of the City Code was distributed to those property owners through the U.S. postal service (first class mail).
Another recent and ongoing right-of-way project is the construction of stormwater swales. The swale project is funded by the State, and is an effort to reduce flooding in areas that have been historically susceptible to flooding and also provide natural treatment for stormwater. It is imperative to note that although specific properties may not have experienced flooding, other areas in the vicinity have flooded, so the swale project is actually a larger improvement system. The swales are being constructed entirely within the right-of-way, but the construction has affected encroachments (landscaping) into the public right-of-way. City staff constructing the swales attempts to minimize the disturbance and is providing some restoration.
Please be aware of the relationship between the right-of-way and private property. In many instances, the installation and maintenance of private improvements within the right-of-way will not be an issue. Do not overlook the fact that such improvements may be affected by future City or other public improvement needs.