HomeMy WebLinkAboutAgenda Item - 2025-04-01 - Number 10.1 - Enforcement of the ROW and Vegetation Program 10.1
oti� E*P4_ COUNCIL REPORT
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Subject: Enforcement of Rights-of-Way Violations &Vegetation Program
Meeting Date: April 1, 2025 Staff Member: Erica Rooney, City Engineer
Lucas Rhyan, Engineering Technician II
Report Date: March 24, 2025
Department: Engineering
Action Required Advisory Board/Commission Recommendation
El Motion ❑ Approval
❑ Public Hearing ❑ Denial
El Ordinance ❑ None Forwarded
❑ Resolution ❑X Not Applicable
El Information Only Comments:
❑X Council Direction
❑ Consent Agenda
Staff Recommendation: Introduce vegetation compliance citation
Recommended Language for Motion: N/a
Project/ Issue Relates To: Civil violation code enforcement processes for vegetation and
encroachment violations with public right-of-way.
Issue before Council (Highlight Policy Question):
❑Council Goals/Priorities ❑Adopted Master Plan(s) ❑X Not Applicable
ISSUE BEFORE COUNCIL
Staff will provide an overview of the current approach to right-of-way (ROW) and sight-distance
enforcement, which includes but is not limited to, physical obstructions for pedestrian
movement, sight distance obstructions for vehicles, and general ROW encroachments, such as
fences, gates, rocks, and other landscaping amenities.
Staff seeks Council direction on enforcement priorities and considerations, as well as any
feedback regarding current practices and priorities.
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EXECUTIVE SUMMARY
This report outlines the City's current approach to ROW Code enforcement, highlighting key
considerations, priorities, and challenges. The ROW is intended all modes transportation and
for other public uses (like utilities and parking); however, the area is often encroached upon by
adjacent properties, causing conflict with intended use. Ultimately, staff desires to minimize
discretion and maximize an objective approach to allow for consistent enforcement of the ROW
encroachments. At the same time, staff wants to enable equitable outcomes for the general
public and maintain consideration for extenuating circumstances. Staff requests feedback from
the Council on the current ROW enforcement process as well as enforcement alternatives.
BACKGROUND
Rights-of-way enforcement is critical to maintain safety, accessibility, and quality of life. ROW is
enforced to maintain access for utility partners as well as continued safe access for pedestrian,
bicycling, other wheeled transport, and vehicular traffic. Enforcement is achieved through the
implementation of City Code as well as standards set forth by various Federal guidelines and
City design standards. Without active enforcement, code standards are less likely to be
followed, which degrades community accessibility, safety, and livability.
City Code Overview
Right-of-Way Uses and Regulations
The City has regulatory management over public ROW. This does not, however, obligate the
City to maintain nor repair any part of such ROW. The City is to permit and manage reasonable
access to the public ROW for utility services, capital improvements, and conserve the limited
physical capacity, integrity, and longevity of those ROW (LOC 51.01).
Right of Way Encroachments
With some exemptions, nothing erected or placed in the ROW, including the placement and
maintenance of vegetation, should create visual obscuration for drivers or physical barrier for
pedestrians on improved walkways (LOC 42.18.1010 (1); 42.18.1015 (2)). The exemptions are
listed in LOC 42.18.1015 include sidewalks, mailboxes, utilities, irrigation systems, handrails,
lawns, plants (except hedges), and approved street trees. The exemptions are not permitted if
they create a line of sight traffic hazard or conflict with the federal Americans with Disabilities
Act requirements. Other than the exemptions listed, nothing else is expressly allowed to
permanently remain in the ROW.
Violations of ROW Code are civil violations. Several departments enforce civil violations
depending on the nature of the violation. There are common considerations in code
enforcement:
1. Equity- Community members are treated fairly and justly, regardless of their age,
physical abilities, socioeconomic status, race, or background.
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A purely complaint-based enforcement system is when City staff receives a formal
notice (email or safety form) from a citizen about a specific property or properties.
Complaint-based enforcement may result in inequitable effect because of inconsistent
treatment. For instance, it can reward residents who feel comfortable contacting the
City, such as people who speak English fluently, are more socio-economically well off,
and have trust in local government. This can lead to higher rates of complaints and
enforcement actions in some neighborhoods, but not others, and can disproportionately
affect people who don't feel as comfortable contacting the City.
Systematic code enforcement is a more proactive method to address or prevent
violations. It includes promoting education and enforcing violations observed by staff in
the field, rather than waiting until a complaint is received. Please refer to the Civil
Violation Code Enforcement Study Session dated June 18, 2024 for a broader equity
evaluation on systematic-based civil violation enforcement.
No data has been collected specifically to evaluate equity in the City's civil enforcement
programs.
2. Priorities -Staff must balance workloads to resolve on-going cases as well as investigate
new cases, all while performing other duties within their role
3. Outcomes. Current enforcement strategies achieve some level of effectiveness but
violator's correction action does not always result in complete compliance with Code.
4. Citations/escalation— Issuance of citations or remediation through public nuisance
enforcement, including city personnel. To enter property to conduct remediation, a
circuit court proceeding may be required.
5. Private Action Liability. Failure to comply with city code may be a basis of liability cited
by the injured party against the property owner in a civil proceeding.
Code enforcement staff make a concerted effort to resolve violations first through education
and voluntary compliance.
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Table 1. Department Responsibility for Civil Violation Code
Enforcement Applicable to ROW and Vegetation Management.
Department Responsible Staff Related City Codes and Ordinances
Enforced
Police Community Service Nuisances (Ch. 34)
Officers (CSOs) and Traffic Code— Parking (Ch. 32)
Police Officers Sign Code (Ch. 47)
Tree Code (Ch. 55)
Fire Fire Marshal Fire Code (Ch. 15)
Parks and Recreation Park Rangers Encroachments in parks
Community Building Official Building Code (Ch. 45)
Development Code Enforcement (CE) Nuisances (Ch. 34)
Specialists Sign Code (Ch. 47)
Community Dev. Code (Ch. 50)
Tree Code (Ch. 55)
Engineering Public Works Staff Nuisances—Sidewalks (Ch. 34)
Engineering Technicians Streets, Sidewalk, ROW (Ch. 42)
Utility Facilities in Public ROW (Ch. 51)
Erosion Control (Ch. 52)
Engineering Code Enforcement Actions
The Engineering Department does not have a dedicated code violation specialist. Rather code
enforcement is addressed by permit technicians, as a part of their work to manage the ROW.
The work includes responding to vegetation or other encroachments, and sidewalk obstructions
or deficiencies. ROW violations are often addressed with a correction letter. The letter
describes the violation, the applicable Code, and what is required for compliance. This method
has resulted in over 150 properties removing vegetation, addressing sidewalk deficiencies, and
other encroachments throughout the City since July 2024. No further enforcement action, e.g.,
citation or liens (when the City acts to remedy a public nuisance violation) have been necessary
to obtain compliancy from the 150 properties.
Since July 2024
• 194 Sites inspected
o 13 letters to property owners for sidewalk deficiency complaints
o 8 letters sent to property owners for general ROW complaints (storage of
materials, rocks, etc.)
o 121 Letters sent to homeowners for vegetation compliance
o 23 sites part of Public Works vegetation management plan or belong to the Parks
Department
o 29 sites required no action after a site visit was conducted
• 86% of sites that received letters were resolved by owner compliance
• 14% of sites unresolved
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About 190 hours of staff time was expended in enforcement on 194 Sites:
• receiving and filing public complaints
• conducting field inspections of each site
• analyzing sight distances in the field
• annotating sight distance studies in the office
• preparing photos of each site that highlight the requested action
• preparing and processing letters to homeowners of each site
• taking phone calls from property owners
• meeting with property owners on-site to discuss plans of action
• follow-up inspections
• follow-up thank you letters or additional action letters
• meetings with other staff to discuss the more challenging properties
Proactive corridors, such as arterials and collectors, indicating violations letters/per number
of sites along the corridor:
• Country Club—30/78
• Boca Ratan — 18/55
• Goodall —6/50
• South Shore (in progress) — 15/175
• McVey/Stafford (to Sacred Heart Cemetery) —22/70
DISCUSSION
The frequency and nature of ROW violations vary by department and the process to address
and prioritize violations also varies depending on the Code violated and the nature and urgency
of the violation. However, there are some common factors in most civil violation investigations
that are considered in the City's overall approach to code enforcement.
Considerations in ROW and Sight Distance Violation Code Enforcement
1. Equity.
The Engineering Dept. utilizes both a complaint-based and a systematic-based approach to
code enforcement. The department's systemic—based approach includes conducting
corridor inspections and patrols.
Table 2 lists regulations that are enforced by Engineering on a complaint basis and a
systematic basis, with comment regarding the equity consideration. Worth noting is the
potential disproportion of violations amongst lower-income residents who may be
experiencing financial hardship, or disabled, or elderly residents who are unable to perform
maintenance. Landscaping needed to remedy violations can sometimes be expensive and
arduous physical labor.
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No citations have been issued by the Engineering department for violations; correction
letters and an educational approach have been used. As noted above, this approach has
led to an 86% compliance rate.
Table 2. ROW Violation Enforcement Equity Considerations
Regulation Description Equity Evaluation
Vegetation in Permitted vegetation must Complaint basis
the ROW be no taller than 30" in sight - potentially higher rates of complaint at
triangle, branches no lower intersections or areas with high foot traffic
than 8' in sight triangle, and
branches no lower than 9' Systematic basis
over pedestrian paths. - places of higher visibility during routine
patrol of the City
Fences and Fences and walls that are Same as above
Walls constructed on public ROW and
encroaching or City easements are Systematic basis
on ROW or addressed by CE Specialists - site inspections for new development,
easement or Engineering Technicians. inspectors also look for encroachments
Boulders and Rocks are not allowed in the Same as above
Landscaping ROW over a certain size. and
Rocks in ROW Additionally, only certain Complaint basis
gravel is approved in the - areas of high parking demand
ROW and shoulders.
Vegetation on I Vegetation is not allowed to Complaint basis
sidewalks, impede, or render - potentially higher rates of complaint at
bicycle paths, hazardous, the use of intersections or areas with high foot traffic
and other sidewalks and pathways.
improved Systematic basis
walkways - places of higher visibility during routine
patrol of the City
-Technicians actively enforce along pre-
determined corridors throughout the City
Vegetation on Vegetation is not allowed to Complaint basis
the roadway protrude onto the roadway. - potentially higher rates of complaint on
If it does, branches must be narrower streets or streets with blind
13.5' above the surface of curves.
the road
Systematic basis
places of higher visibility during routine
patrol of the City
Sight Distance Property owners must Same as above
on private prevent vegetation or and
property structures from impeding
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Regulation Description Equity Evaluation
sight distance at - potentially higher rates of complaint on
intersections to include narrower streets or streets with blind
driveways curves.
2. Priorities.
Engineering Technicians provide counter services and inquires to customers as the Engineer
on Duty, review and issue street-opening permits, and review and issue encroachment
permits, in addition to investigating and processing ROW violations.
Right-of-Way violation enforcement cases have different levels of importance or urgency.
Some cases are investigated and resolved on the spot or within a week, while others take
up to a month or more until resolved.
ROW violation cases are prioritized and handled based on the following factors:
a. Public safety—Violations that pose an immediate threat to the public, e.g., road
obstruction, sign blockage, or significant impediment of visibility, have priority and are
addressed as soon as possible.
b. Worsening ROW violation vs. static ROW violation—Violation activities that are in
progress, e.g., landscapers are actively placing hedges or other materials in the ROW,
have priority over violation activities that are static.
c. Accessibility—violations that impede the travel or pose a danger to pedestrians,
including ADA violations, have priority.
d. Community values (aesthetics, mobility) — many ROW violations may be considered
"public nuisance" as defined LOC 34.08.4001, e.g., storage of private property in the
public ROW, overgrown vegetation, or landscaping waste.
3. Outcomes.
Engineering department's enforcement strategies do not always result in compliance. In
many cases, staff receive complaints for sight-distance obscurations or sidewalk
obstructions. Staff issue a correction letter highlighting the portion of vegetation causing
the issue. For example, there are numerous existing hedges that encroach or originate
(trunk and roots) on public ROW. LOC 42.18.1015(1)(f) expressly states that hedges are not
allowed in the ROW. The result may be that a portion of the hedge is trimmed back, but the
remaining hedge roots and trunk are not removed from the public ROW. Sometimes there is
some trimming, but staff know that these hedges will grow back, and action will be required
in future years to address the same problem.. However, staff does not systemically pursue
the removal of hedges in the ROW because of other priorities, the sheer number of
violations and resulting time to address each violation, and attendant property owner
objections (see Exhibit 1).
1 A public nuisance is: (1)Any condition or use of property which causes or tends to cause detriment or injury to
the public health,safety or welfare;or 2.Any condition specified in LOC§§34.10.500 to 34.12.600;or 3.Any
condition defined as a nuisance by any Lake Oswego Code provision. LOC 34.08.400
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4. Citations/Escalation.
At this time the only tool used by the Engineering department for encroachment, visibility,
and vegetation violations is a correction letter requesting voluntary compliance. Since July,
2024 about one in six voluntary correction requests have remained non-compliant. Of those
non-compliant properties, several include sight-distance violations and sidewalk
impediments or other hazards.
LOC Chapter 42 regulates ROW encroachment, sidewalk serviceability, as well as clear sight
triangle and sight distance.
a. Encroachments violations and sidewalk violations are specifically referred to as civil
violations and may be enforced pursuant to LOC Art 13.02 and LOC Art 34.04.
Additionally, public nuisances may be remediated by LOC Art. 34.08.
b. A clear sight triangle and sight distance violation may be defined as a public nuisance
and remediated by LOC Art. 34.08.
5. Private Action Liability.
Liability falls to the property owner in instances where a vehicle collision or pedestrian
injury is caused by a lack of maintenance or improper landscaping. However, this does not
prevent tort claims notices or civil actions being filed against the City as well as toward the
property owner thus also requiring staff engagement time and insurance defense to
address such claims.
CURRENT ROW ENFORCEMENT PRACTICES
To summarize, current enforcement practices include two approaches and actions:
1. Letter Only—Violation properties receive a letter requesting compliance. Non-
compliant properties are informed of their liability but no escalation action, e.g., citation
or public nuisance action is taken by City.
2. Public Works Remediation Action—On rare occasions, and if the safety concern is
significant, we may enlist Public Works staff to remedy the situation. Code allows City
staff to remove encroachments and problematic vegetation (see LOC 42.18.1045 and
42.08.440; LOC 34.08.400 - .435). Staff may dispatch public works workers to respond to
encroachments and problematic vegetation in cases of ROW violations going
unresolved.
• Pros: Swift resolution to ROW issues (for work within ROW), violations get resolved
exactly as requested
• Cons: Staff intensive, limited personnel available; survey may be needed to ascertain
ROW boundary, disapproval of property owners— hurting the aesthetic, visual
insulation, sound insulation of a property, if any work is needed on private property—
CAO recommends circuit court proceeding
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ROW ENFORCEMENT ALTERNATIVES
Staff has identified the following additional ROW enforcement strategies for consideration and
Council direction. Staff recommends implementation of one or more of the following
alternatives.
Alternative 1—Compliance at Permit Stage. Encroachments occurring within the ROW
remedied at the time of re-development.2 Engineering staff participate in building permit
review and would check for site encroachments during issuance of structural and dwelling
permits.
• Pros: Impacts significant number of properties in a year, contributing to great volume of
ROW being cleared
• Cons: May impact properties with long standing hedges or landscaping, may require
revision to code'
Alternative 2—Citation. Where ROW violations are not resolved through Letter Only, escalate
to issuance of citation where unresolved violation involves a dangerous intersection / public
safety issue or pedestrian accessibility issue.
• Pros: Greater compliance with City Code, problematic areas get resolved, citation
moneys earmarked for a vegetation management fund, to contract landscapers for
future problem areas, no changes in Code or Master Fees.
• Cons: Fiscal impact to citizens, additional staff time to manage citations, court
appearances if required
Alternative 3— Enforcement Fee. Same as Alternative 2—Citation, except an enforcement fee
is assessed before introducing a citation. This avoids having to go through the court process.
The Community Development Department uses the enforcement fees for civil violations for
violations of Chapter 34, 47, 50 and 55. If the violation is not remedied and the enforcement
fee paid, a citation is issued. The fee structure, managed via Accela (the City's planning,
engineering, and buildings permitting system) is more efficient and a more cost-effective than
issuing a citation, but if the owner wishes to contest the violation and the enforcement fee,
they have the option of receiving the citation and making their argument before the municipal
court.
2 LOC 50.01.003.4 prohibits issuance of land use permits for violations of LOC Ch.50.That section dose not extend
to non-LOC Ch. 50 code violations.
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Currently, no Engineering Code Violation Fee schedule exists in the Master Fees and Charges
Resolution. The Engineering Department has not issued citations and there is no code authority
for ROW vegetation and encroachment violation enforcement fees.
Action Required:
a. Enact enforcement fee for ROW civil violations.
b. Include Engineering Violation fee structure in the Master Fees and Charges Resolution.
• Pros: Greater compliance with City Code, problematic areas get resolved, fee moneys
earmarked for a vegetation management fund, to contract landscapers for future
problem areas, more efficient than the citation process, less staff time and more cost
effective
• Cons: Fiscal impact to citizens, additional staff time to manage, requires a change in
code and change in Master Fees and Charges
FISCAL IMPACT
The Engineering department currently employs one engineering technician utilizing about 0.16
FTE to pursue all ROW encroachments, vegetation complaints, and sight distance violations.
The average time spent on a single violation from complaint received, to final inspection is
about 1 hour.
Depending on the direction from Council, the amount of time and staff dedication to this effort
could be dramatically increased, possibly requiring more resources to complete the work.
RECCOMENDATION
Staff recommends the adoption of one or more of the above alternatives. As the City continues
to grow and become more connected, the efficient and effective utilization of public right-of-
way becomes increasingly important. Continued management of vegetation and ROW
encroachments and obstructions will lead to improved and greater accessibility to all users.
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Exhibit 1
Example of long-standing vegetation encroachment.
No requests for removal or trimming of the hedge have been made at 1224 Bayberry.
Consider 1224 Bayberry re-develops, would the City require removal the hedge encroachment
at time of construction?
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Exhibit 1 continued
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REFERENCES
American Association of State Highway and Transportation Officials. (2011). A Policy on
Geometric Design of Highways and Streets, 6th Edition.
https://store.transportation.org/item/collectiondetail/180
Architectural and Transportation Barriers Compliance Board — Public Right-of-Way Accessibility
Guidelines PROWAG. (August 8, 2023). Accessibility Guidelines for Pedestrian Facilities
in the Public Right-of-Way. Federal Register Vol. 88 no. 151. https://www.access-
board.gov/files/prowag/2023-16149.pdf
Civil Violation Code Enforcement Study Session dated June 18, 2024
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