7-7A-3: PARK ACCESS, ENCROACHMENTS, CONSTRUCTION USE AND EASEMENTS:

   A.   Purpose And Objectives:

      1.   The department is responsible for the stewardship of all Boise City park properties, and thus any encroachments upon them. The department shall regulate all non-park related construction activity on or across park property and provide conditions to assure preservation of the public's interest and proper restoration of the parks. Boise City projects shall be subject to internal policies and are specifically exempt from the provisions of this article.

      2.   No person shall use any park property for access to adjoining or nearby property for any purpose, or to construct or install any facility or improvement upon, over or beneath park property except by license or easement issued or granted pursuant to the provisions of this Code.

   B.   Objectives:

      1.   This article shall apply only to those properties owned and/or maintained by the department.

      2.   Evaluation of the impact of the proposed project shall be made in terms of the site and the associated public use to determine the merit of granting the work.

      3.   Work will be allowed only by and/or with the approval of the department for a project that meets the department's construction and restoration requirements.

      4.   This article provides for regulation of non-park related access across, or construction activities on park property, and does not, in itself, provide a permanent easement or lease on a park property.

      5.   Routine maintenance of improvements located on a park property that are addressed by an established easement and maintenance agreement or license agreement are specifically exempt from the provisions of this article. For purposes of this article "routine" is defined as maintenance activities which do not require: placing undue restrictions on a park road, pathway, or recreation facility; excavation; or damage to park grounds or improvements unless otherwise specified by an established easement and maintenance agreement or license agreement.

   C.   Construction Use License:

      1.   Application: An application for a construction use license is required in any case where an adjoining property owner, business, utility company, or other entity is requesting access through a park site or permission to stage, grade, or modify, in any manner, a public park property. The purpose of the license is to provide review of proposed non-park related activity on park property to ensure the contemplated activity does not present a safety hazard to park users or pose an undue burden on park property, and to provide for assurances that the property owner, utility company or their authorized contractor, assumes all responsibility for any resulting damage to the park grounds, sprinkler systems, or other public park facilities that may occur as a result of the licensed activity on park property.

      2.   Process And Fee Requirement:

         a.   Applicants shall complete a construction use license application to initiate the license process and shall pay a fee in an amount set forth on the fee schedule. The application shall include:

            (1)   The name, address and phone number of the property owner;

            (2)   The name, address and phone number of authorized contractor who will perform the work;

            (3)   A description of access needs, including a description of the type and purpose of work to be performed on park property and the location of the proposed activity;

            (4)   The dates access is being requested;

            (5)   A park site plan showing the proposed access route relative to locations of park trees, structures, and other improvements and features;

            (6)   A description and the weight of the equipment that is proposed to be used on park property; and,

            (7)   A description of the length and area of the park to be used or otherwise disturbed;

            (8)   Proposed mitigation measures that will be employed to address safety concerns and minimize damage to the park, including a description of all work that is anticipated to be required for restoring the park to its original condition including anticipated quantities of materials such as: soil, turf, irrigation system, trees, shrubs, asphalt and curbing.

         b.   The applicant shall be required to enter into an agreement acknowledging responsibility to pay for all costs to repair damages to park property. The applicant shall also indemnify the City for liability.

      3.   Applicant Obligations: The department shall prepare a standard agreement or license outlining the applicant's obligations, including any conditions or fees.

         a.   The Director is authorized to review the required approval standards and/or criteria for construction use licenses and issue final approval, approval with conditions, or withhold final approval for the City. The Director's decision on construction use licenses shall be final unless an appeal is made as hereinafter provided.

         b.   Upon expiration of the construction use license, the Department will inspect the park property for damage connected to the permitted activity on park property. In the event damage to the park site is found, the applicant shall be contacted by the department to effect restoration within ten (10) working days using an approved and bonded contractor or pay the City for repairs. The department shall specify the extent of damages found, the scope of required repair and replacement work, the procedure for performing the work, and any allowances for additional time to complete the work in the event weather or site conditions would warrant such an allowance.

         c.   The City reserves the right to file claims for damages against the applicant or the applicant's authorized contractor in the event the applicant fails to effect the required restoration work within the required time frame. The City may also elect to impose penalties in accordance with the penalty provisions of this article.

   D.   Action On Construction Use License Applications:

      1.   The following shall be considered by the Director prior to approving or denying a construction use license application:

         a.   The proposal is permissible under Federal, State, and local laws; and

         b.   The proposal does not conflict with the location of existing or planned park improvements or other public facilities and improvements or established easements such as, but not limited to sewer and utility lines, flood control, wells, and communications facilities; and

         c.   The proposed project cannot be reasonably accomplished or accessed by another way or means, other than through park property; and

         d.   No permanent disruption or damage to an active park use area would occur due to the proposed project or access, nor would a scheduled recreation program be affected; and

         e.   The site conditions and access route are such that potential damages to park property are avoided or minimized; and

         f.   The time of year and weather conditions will help minimize potential damage to park property; and

         g.   The project or access will not result in an excessive number of trips through the park property; and

         h.   Appropriate provisions for recovery of extraordinary costs to the City for temporary use of property, restoration (subsection E of this section), inspection and monitoring of the proposed project are addressed; and

         i.   The proposed project is not specifically covered by an existing approved easement and maintenance agreement.

      2.   The Director shall make a final determination on all applications for construction use licenses within fifteen (15) working days of receipt of a complete application. The Director's action on applications shall be to deny, approve or approve with conditions. A license issued with conditions may be monitored by department staff for compliance with requirements to protect the safety of park users and protect park property and improvements from undue damage or loss. Failure to abide by conditions shall result in revocation of the license and suspension of licensee's activity on park property.

      3.   An applicant may appeal denial of a construction use license application by written request to the commission. The appeal must be made within ten (10) working days of written notification of the denial and include an appeal fee in an amount as set forth on the fee schedule.

   E.   Restoration:

      1.   Provisions for restoration shall be addressed as part of the conditions for a construction use license. All restoration of park property shall comply with department standards and specifications. Department specifications are available upon request. Each restoration project will have its own list of specific requirements. Requirements for enacting restoration work shall be performed according to the department's direction:

         a.   Department Restoration: The department may restore a construction site to ensure park properties are quickly and safely restored and repaired. All costs associated with labor and materials to restore property to the department's satisfaction shall be paid by the applicant.

         b.   Applicant Restoration: The department may direct that an applicant restore a construction site through an approved contractor with demonstrated expertise in the repair work required. All contractors must be licensed and bonded for the work to be done. All work shall be accomplished in accordance with department construction standards and materials specifications. The department shall impose a time limit for an applicant's restoration requirements to be completed by the approved contractor. Department staff shall inspect the contractor's work for completeness and quality. Failure to meet restoration requirements in a satisfactory or timely manner shall be subject to the violation provisions of this article.

   F.   Easements:

      1.   Applicant: No individual, business, Idaho Public Utilities Commission regulated utility company, or other entity shall install a facility such as, but not limited to: pipe, wire, fiber optic, tower, or any other structure, either temporarily or permanently, without first securing an easement therefore in accordance with the provisions of this article.

      2.   Process And Fee Requirements:

         a.   Applicant shall complete a Request for Easement and submit it to the department together with an application fee in the amount set forth by the fee schedule. The request shall contain the applicant's name, contact person, a description of the proposed easement, the park and the specific area over which the applicant seeks the easement.

         b.   Applicant shall supply a written legal description and a map, stamped by a surveyor or engineer licensed by the State of Idaho, showing the line of the proposed easement and all trees, shrubs, sidewalks, driveways, buildings, etc., within ten feet (10') of the outer edges of the easement.

         c.   Applicant shall provide an appraisal of the property proposed for the easement valuing it for its highest and best use.

         d.   If approved, the applicant shall pay the department fifty percent (50%) of the appraised value of the property for the easement. Calculated cost shall be based on the square footage of the easement.

         e.   Applicant may be required to provide written proof of insurance and/or bonding verification. The department may require additional bonding for large projects.

      3.   Government And Approved Public Utility Commission (PUC) Regulated Applicant Process: If the applicant is a governmental entity or a utility regulated by the Idaho Public Utilities Commission and seeks an easement through another regulated utility's previously-approved easement, the applicant shall:

         a.   Show written proof the current easement holder has granted use of the easement to the applicant. No application processing fee is required.

         b.   Provide a legal description and/or map, stamped by an Idaho State certified surveyor or engineer, showing the proposed utility location on City park property and its relationship to the other utilities in the easement.

         c.   Applicant may be required to provide written proof of insurance and/or bonding verification. Bonding may be required for large projects.

         d.   If the applicant desires to be on, or go through City park property (where a utility easement does not exist), the applicant must follow the procedure set forth in subsection F2 of this section.

      4.   Government And Public Utilities Commission Regulated Businesses Within Public Utility Corridors:

         a.   If the applicant is a governmental entity or a utility regulated by the Idaho Public Utilities Commission and seeks to be within an established "public utility corridor", the applicant shall submit a legal description and/or map, stamped by a surveyor or engineer licensed in the State of Idaho, showing the proposed utility easement location on City park property and its relationship to existing utility easements.

         b.   The applicant may be required to prove that the corridor in which it seeks to locate is a legally-established public utility corridor.

         c.   Private utilities not regulated by the Idaho Public Utilities Commission may not obtain easements in public utility corridors.

         d.   Fee requirements shall be the same as set forth in subsection F2 of this section.

      5.   Easement Review Process: Upon receipt of a completed application, the Director shall review the application together with the proposed easement and may seek approval of such easement from the City Council. (Ord. 44-18, 9-25-2018)