§ 38-27. Fences in city rights-of-way and easements of rights-of-way.

(a)

Fences prohibited. Except as otherwise specifically provided in this section, it shall be unlawful for any person to erect, construct, locate, maintain or otherwise place any fence or like structure on any street right-of-way or easement of right-of-way. Such action on the part of any person shall upon conviction, constitute a Class 4 misdemeanor.

(b)

Fence encroachment by permit.

(1)

The director of engineering may permit fences to encroach into a city right-of-way or easement-of-right-of-way in accordance with the provisions of this subsection. The decision of the director of engineering shall be based upon the city's needs and the impact that the fence may have on vehicular and pedestrian safety or upon adjacent property owners.

(2)

Allowed encroachments.

(i)

Fence encroachments may be permitted in residential zoning districts as long as those horizontal encroachments are no greater than twenty-four (24) inches, more or less, from the property line.

(ii)

Fence encroachments may be permitted by the director of engineering within the special sidewalk easement area defined in section 38-3.2 of this Code if the encroachment is recommended by the Hilton Village Architectural Review Board (hereinafter the "board"). In the Hilton Village Historic District Commercial Area, fence types may be wood picket or other material approved by the Board. Maximum fence height above the ground level shall not exceed thirty (30) inches. Fences shall be installed with the finished side facing the adjacent property. When recommending a fence in the easement area the Board shall consider the height of the fence and its relationship to the sidewalk and street levels. Fences shall be finished and painted a color compatible with and appropriate to the historic district.

In the special sidewalk easement area fence encroachments may be placed in the running bond paver section of sidewalks adjacent to buildings. Fences shall not be placed on the herringbone patterned paver fields or the adjoining soldier course borders of the pavement.

(3)

Permit procedure.

(i)

Any property owner desiring to obtain a permit to allow a fence to encroach into the city right-of-way or easement-of-right-of-way (including the special sidewalk easement area defined in section 38-3.2 of this Code) shall file an application therefore with the director of engineering. Applicants for encroachments in the Hilton Village Historic District shall first obtain a certificate of appropriateness from the board for the fence. A non-refundable application fee of fifty dollars ($50.00) shall be paid at the time of submission of the permit application to the director of engineering. As used in the for purposes of this section, "property owner" and "permit holder" shall be defined as the original owner/applicant of the property adjacent to a right-of-way or easement-of-right-of-way who applies or applied for a permit, as well as all subsequent fee simple owners of the subject property. Once issued, a permit shall run with the land and ensure to the benefit of the original owner/applicant and all subsequent owners of the property, and such subsequent property owners shall be subject to the provisions of this section as well as the terms of the permit and any other applicable provision of the state and city codes.

(ii)

The property owner shall provide a plot diagram with each application showing the location of the proposed fence, the location of all adjacent right-of-way and easements-of-rights-of-way, the height of the fence, and the type(s) of material proposed to be used for the fence.

(iii)

The property owner shall provide evidence that Miss Utility, or its successor, has been notified and that all other required permits have been obtained, specifically including a right-of-way permit.

(iv)

It shall be the responsibility of the permit holder to insure that a permitted fence is not placed or maintained on the right-of-way or easement-of-right-of-way except in strict conformity with this section and the terms of the permit.

(c)

Building code. All fences permitted in accordance with this section shall be constructed and maintained in accordance with the requirements of the Virginia Uniformed Statewide Building Code and applicable provisions of the City Code related to fence construction and maintenance standards.

(d)

Insurance. As a condition precedent to the issuance of a permit, the property owner shall file with the city attorney evidence of general comprehensive liability insurance covering the existence of such fence. The policy of insurance shall require the insurer to defend, indemnify and hold the city harmless from any and all claims for injury or damage, and shall pay all judgments, costs or expenses which the city may incur or suffer by reason of granting a permit in connection with the erection, alteration, maintenance, repair, removal or existence of such items. Such policy of insurance shall provide liability coverage for bodily injury, death and property damage of not less than three hundred thousand dollars ($300,000.00) combined single limit during any one (1) occurrence for injury to or death of any one (1) or more persons and for property damage or destruction suffered as a result of the existence of such fence and shall name the City of Newport News as an additional insured. All such insurance required to be carried by the permit holder shall be with an insurance company licensed to do business in the Commonwealth of Virginia and approved by the Newport News City Attorney's Office. Such insurance (i) shall contain an endorsement that such policy shall remain in full force and effect notwithstanding that the insured has released its right of action against any party before the occurrence of a loss; (ii) shall name the City of Newport News as an additional insured party; and (iii) shall provide that the policy shall not be canceled, terminated or materially amended without at least forty-five (45) days' prior written notice [fifteen (15) days if due to nonpayment of premium] to the City of Newport News. Prior to the issuance of the permit, evidence satisfactory to the Newport News City Attorney's Office of the payment of all premiums for such policy, shall be delivered to the Newport News City Attorney's Office for review. As a condition subsequent to the insurance of the permit, the permit holder shall maintain the required insurance at all times during which the permitted fence is located in the right-of-way or easement-of-right-of-way.

(e)

Removal of fences. Upon a finding by the director of engineering that no permit exists for a fence encroaching into a right-of-way or easement-of-right-of-way, or that a permit holder has violated the provisions of this section or of the fence permit, or that the right-of-way or easement-of-right-of-way is needed for city purposes and the location of the fence impedes that need, or that a change of conditions has occurred affecting pedestrian and/or vehicular safety, or the permit holder as failed to maintain the fence as required by other provisions of this Code, the director of engineering may cause the fence to be removed and the costs thereof charged to the permit holder and collected as taxes are collected, or by any other method provided by law.

(Ord. No. 4113-90; Ord. No. 4997-97)

(Ord. No. 4113-90; Ord. No. 4997-97)