CHAPTER XII. PUBLIC PROPERTYCHAPTER XII. PUBLIC PROPERTY\ARTICLE 5. PRIVATE USE OF STREET RIGHTS-OF-WAY

The primary objective of this Article is to protect public safety, reduce interferences with public travel, protect the public’s interest in its Rights-of-Way, and to provide for the efficient and uniform administration of the City’s street Rights-of-Way. The City Council finds that the regulations, requirements, and restrictions, as set forth in this Article are in the best interests of the health, safety, and welfare of the City’s citizens.

(Ord. 2270; Sec. 1)

For the purposes of this Article, the following terms shall have the meaning given them in this section.

(a)   Approach. “Approach” means the area of the Right-of-Way between the traveled surface of the road and the adjacent property that is intended to provide access for vehicles or equipment from the road to the adjacent property.

(b)   Damage. “Damage” means the destruction, degradation, alteration or harm to any existing physical element within the City Right-of-way as a result of actions taken by persons other than the City.

(c)   Headwall. “Headwall” means rock, concrete, masonry, metal, timber or other similar materials placed on the sides of an approach as support, to prevent erosion, or for decorative purposes.

(d)   Junk. “Junk” means old or scrap hazard signs, copper, brass, rope, rags, batteries, paper (synthetic or organic), trash, garbage, waste materials, rubbish, rubber debris, appliances, waste, or junked, dismantled, or wrecked automobiles, farm or construction equipment or machinery or parts thereof, iron, steel, and other old or scrap ferrous or non-ferrous material.

(e)   Person. “Person” means an individual, corporation, business trust, partnership or association or any other legal entity.

(f)    Right-of-Way. “Right-of-Way” means the entire width between boundary lines or any way or place under the jurisdiction of the City when any part thereof is open to the use of the public, as a matter of right, for the purposes of vehicular traffic and the City has a right to maintain.

(g)   City. “City” means the organized government of The City of De Soto, Kansas.

(Ord. 2270; Sec. 1)

(a)   Maintenance of areas within the City right-of-way that are outside of the road edge or curb line for any road abutting a non-agricultural use or abutting a property that is zoned C1, C2, OI, M1, M2,  or PD, regardless of the use, shall be maintained by the adjoining property owner or resident. These areas may include drainage ditches or swales, sidewalks, road embankments, or other similar landscaped areas.

(b)   The owner or resident maintenance responsibility shall include:

(1)   The establishment of permanent ground cover.

(2)   The mowing or trimming of vegetation in accordance with the City’s weed control ordinances.

(3)   The clearing of sidewalks.

(4)   The maintenance of driveway drainage culverts, the collection of garbage, litter & debris.

(5)   The upkeep of private mailboxes or similar structures.

(Ord. 2270; Sec. 1)

(a)   No person may cultivate, plant, harvest, or maintain agricultural crops, trees, bushes, or shrubs within a Right-of-Way. Any such crops, trees, bushes, or shrubs within any Right-of-way may be removed by the City, at the City’s discretion, without compensation to the adjoining property owner.

(b)   No person may cultivate, plant, or maintain grasses, flowers, vegetables, or other vegetation in any manner that obstructs visibility of a road or otherwise interferes with, obstructs, or renders the road dangerous for passage.

(c)   Trees within the Right-of-Way may be removed by the City when they interfere with the maintenance or reconstruction of the road or with the safety and convenience of the public. Whenever practical, the City will give notice to the owner of the abutting property before removal of a tree, unless the removal is necessary to protect the safety of the public.

(Ord. 2270; Sec. 1)

(a)   No person may place, maintain, or allow any obstruction in a Right-of-Way other than those specifically permitted by this ordinance, by state law or rule, or by written approval of the City. Items prohibited by this section include, but are not limited to, fences, posts, structures, piled materials, hay bales, vehicles, trailers, campers, equipment, retaining walls, landscaping stones, rocks, boulders, or any other items that interfere with the safe use or the maintenance of the Right-of-Way.

(b)   No person shall park any vehicle in a Right-of-Way in such a way as to unreasonably interfere with the safe use of a road or the maintenance of the Right-of-Way. No person shall park any vehicle so as to obstruct any sidewalk within the road Right-of-way.

(c)   No person shall place or maintain junk in a Right-of-Way.

(Ord. 2270; Sec. 1)

(a)   No person may alter or change the depth or contour of any portion of any ditch or embankment in a Right-of-Way without written approval of the City.

(b)   No person shall cause damage to a Right-of-Way without the written approval of the City. Any person doing temporary damage within a Right-of-Way with approval of the City shall return the Right-of-Way to a condition as good or better than existed prior to the damage.

(Ord. 2270; Sec. 1)

(a)   No person may work, maintain, improve, or repair the traveled portion of a Right-of-Way without the written approval of the City.

(b)   No person shall apply any systemic, broad-spectrum herbicide to any area of the right-of-way unless a permanent alternative ground cover or alternative erosion control system is in place and approved by the City.

(Ord. 2270; Sec. 1)

(a)   Mailboxes must be placed so they can be safely and conveniently served by postal carriers without leaving their vehicles. They must be on the right side of the road in the direction of travel of the carrier. The exception would be for one way streets which may be serviced from the left side.

(b)   Most rural/residential mailboxes are located immediately adjacent to the road to allow for efficient delivery of mail. Placement adjacent to a road, however, can be a hazard to the motoring public. Accordingly, the City of De Soto has adopted these standards for the placement of mailboxes and newspaper boxes along City roadways. These standards conform to the rules and regulations of the U.S. Postal Service and are based on “A Guide for Erecting Mailboxes on Highways” published by the American Association of State Highway & Transportation Officials (AASHTO) 1994.

(c)   No mailbox or newspaper delivery box (hereafter referred to as a mailbox) will be allowed to exist within the City’s rights-of-way if it interferes with the traveling public or the function, maintenance, or operation of the City’s right of way or roadway system. A new or replacement mailbox installation that does not conform to the provisions of the installation requirements is prohibited. Neighborhood Delivery and Collection Box Units are a specialized type of multiple mailbox installations, are not covered in this standard, and will be considered for approval by the City on a case-by-case basis.

(d)   The roadside face of the mailbox shall be set according to the following requirements:

(1)   Curbed Street – 8-12” from the back of the curb.

(2)   Non-Curbed Roads with Shoulders – 8 – 12” from the outside edge of the Shoulder.

(3)   Non-Curbed Roads with no Shoulders - : 12” from the edge of the traveled portion of the roadway.

(4)   The vertical mailbox height should be 42 to 48 inches from the ground to the bottom of the box.

(e)   Mailboxes shall be approved by the USPS and are typically constructed from sheet metal, plastic, or similar light- weight materials. The house address should be attached with 1” or larger numbers, and the owner’s name is optional. Additional requirements are as follows:

(1)   As required by law, utility locates must be requested 3 days prior to any digging by calling 1-800-Dig-Safe. Digging can be dangerous if a check is not made for underground wiring, buried cable, gas lines, etc.

(2)   A single 4 inch by 4 inch diameter wooden post or a metal post with an equivalent   strength, no greater than a 2-inch diameter standard steel pipe and embedded no more than 24 inches into the ground will be acceptable as a mailbox support. A metal post shall not be fitted with an anchor plate, but may have an anti-twist device that extends no more than 10 inches below the ground surface. Mailbox to post attachments should prevent mailboxes from separating from their support post under vehicle impacts.

(3)   Mailbox posts shall not be located within a roadway ditch. (Cantilevered posts are recommended for these situations).

(4)   Mailbox and post construction must be able to withstand force of snow being thrown by snowplows. (A cantilevered post is recommended as the best installation to prevent damage from snow plowing maintenance activities).

(5)   No more than two mailboxes may be mounted on a support structure unless the support structure and mailbox meet “A Guide for Erecting Mailboxes on Highways” published by the American Association of State Highway & Transportation Officials (AASHTO) 1994.

(6)   Non-standard or massive installations, such as stone or brick pillars, large steel structures or columns such as plows or other decorative supports are expressly prohibited.

(7)   All non-standard or massive mailbox installations, such as stone or brick pillars, large steel structures or columns such as plows or other decorative supports in existence as of the effective date of this ordinance shall be considered Nonconforming Structures, as defined in the City’s Zoning Regulations, and shall be treated in accordance with Article 9 of the Zoning Regulations entitled “Nonconformities”.

(8)   When a mailbox is located at an intersection, the box must be a minimum of 100 feet beyond the intersection in the direction of travel, and the distance may need to be increased if safety is an issue.

(f)    For maintenance or utilities installation, it may become necessary to remove existing mailboxes in the Right of Way. In this case, the City of De Soto Street Department or designated contractor will reinstall mailboxes and posts to the standards specified by city regulations.

(g)   It is the policy of The City of De Soto to replace all mailboxes and/or supports damaged or destroyed as a result of road maintenance activities, even though, by law, the city has no responsibility to do so. Subject to the language of Subsection (h)(2) below, the replacement will be in accordance with the city regulations for mailbox installations.

(h)   As stipulated in Article 9 of the Zoning Regulations, the following standards shall apply to the repair, alteration, or replacement of any nonconforming mailbox:

(1)   Any nonconforming structure may be enlarged, maintained, repaired or remodeled; provided, however, no such enlargement, maintenance, repair or remodeling shall either create any additional nonconformity or increase the degree of existing nonconformity of all or any part of such structure.

(2)   In the event that any nonconforming structure is damaged or destroyed, by any means, to the extent that 50 percent of the materials composing it need to be replaced or re-assembled, such structure shall not be restored unless it shall thereafter conform to the regulations for the zoning district in which it is located. Notwithstanding the foregoing, if a nonconforming mailbox is accidentally damaged or destroyed by a city employee (but not to include a city contractor), then nothing within these regulations will be construed as specifically requiring or prohibiting the City from repairing or replacing the nonconforming mailbox in a way that simply replicates the structure that was damaged or destroyed. The City Administrator shall determine, based on the particular circumstances presented, whether the City will or will not replicate the nonconforming structure. Within 30 days of said determination, anyone aggrieved by the determination may file an appeal with the City Council.

(3)   No nonconforming structure shall be moved in whole or in part for any distance whatever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zoning district in which it is located after being moved.

(Ord. 2270; Ord. 2364)

(a)   No person may construct or reconstruct any approach to a road without first obtaining approval by the City, including a Right-of-Way use permit. A person may be required to submit a map or drawing of the existing or proposed approach when seeking approval.

(b)   A person constructing or reconstructing an approach may be required to install a culvert meeting the specifications set out by the City if the City determines a culvert is necessary for a suitable approach to the road and to promote adequate drainage within the Right-of-Way.

(c)   All driveway culvert installations are subject to inspection by the City, and no driveway approach shall be constructed until the culvert is inspected and approved by the City.

(d)   In no case shall a person be allowed to install a culvert within the right-of-way unless it is for the purpose of constructing a driveway or driveway approach. Culverts will not be allowed to extend past the edge of a driveway, or driveway approach, a distance greater than is needed to properly construct the drive.

(e)   A person constructing or reconstructing an approach to an existing road shall be responsible for paying all of the costs related thereto, including the cost of seeking all necessary approvals and the cost of a culvert if one is required. Property owners are responsible for maintaining all approaches and associated culverts on their property or within the Right-of-way adjacent to their property at their own cost.

(f)    No person may construct or reconstruct any headwall within a Right-of-way.

(Ord. 2270; Sec. 1)

(a)   Any person receiving permission or a permit from the City as provided in this Article must comply with all applicable federal, state, and local laws and rules as well as all applicable City ordinances, resolutions, specifications, regulations, and policies. Any person receiving permission or a permit must comply with all conditions, requirements, and limitations the City expresses as part of the permission or permit. Failure to comply with any of the conditions, requirements, or limitations shall void the permission or permit and could place the person in violation of this Article.

(Ord. 2270; Sec. 1)

(a)   Upon discovery of a violation of this Article, the City may issue a correction order to the violator ordering the person to correct the violation by a certain time. If the violator fails to comply with the correction order by the time indicated in the order, the City may provide for the correction of the violation. Issuance of a correction order does not preclude imposition of the penalty set forth in this ordinance.

(b)   If the City determines that the violation creates an immediate threat to public safety, the City will make a good faith effort to notify the violator to immediately correct the situation. If the City is not able to promptly reach the violator, or if the violator fails to immediately correct the situation upon notification, the City will provide for the correction of the violation.

(c)   The cost of correcting a violation shall be the responsibility of the violator. If the City provides for the correction of the violation, all expenses incurred, including reasonable attorney’s fees, shall be billed to the violator. If the bill is not paid by the due date, the City may exercise any lawful options available to it to collect the amount due.

(d)   Any person who violates this Article shall be guilty of a misdemeanor and subject to the penalties provided for herein and under State law. Each day of existence of such violation shall constitute a separate offense. If convicted, the person may be assessed costs of prosecution.

(Ord. 2270; Sec. 1)

The failure of the City to exercise, and any delay in exercising, any right under this Article, including enforcement, shall not operate as a waiver thereof and shall not constitute a waiver of the City’s interest, however created, in any right-of-way, easement, or any other type of property interest.

(Ord. 2270; Sec. 1)

If any section, subsection, sentence, clause, phrase, or portion of this Article is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.

(Ord. 2270; Sec. 1)