Encroachment Agreement Cover Letter

On By In 1

ENCROACHMENT PERMITS

Do I need an Encroachment Permit?

If you perform any work or store materials and equipment within the City’s right-of-way, you need an Encroachment Permit. Generally, the City’s right-of-way extends about 20-25 feet from the center of the road on most residential streets, and much wider on through-roads.

Light landscaping (ground cover, low shrubs) without irrigation may be installed in the right-of-way without a permit. However, you do so at your own risk, and anything planted within the City’s right-of-way may be removed if it conflicts with future City road or drainage construction activities.

Permanent structures such as a wall, fence, decorative mail box, or building are not allowed within the City’s right-of-way. Under special circumstances and as a last resort, you may apply for an Encroachment Agreement for these structures, which will be considered by the City, in addition to an Encroachment Permit.

How do I get an Encroachment Permit?

  1. Fill out the Encroachment Permit form and provide the address and detailed description of the project. You also need to provide plans, drawings, or sketches of the project.

     

  2. After you complete the permit application, a staff person will visit the job site to determine conditions the City may place on the project. Construction details and typical conditions are on the Encroachment Permit form. If necessary, the staff will call you.

     

  3. The staff will then determine the amount of the refundable deposit ($500 minimum, $2500 typical) as well as the permit fee to cover the initial staff time ($247.50 minimum). If applicable, additional inspection fees will be deducted from the security deposit when the project is complete.

     

  4. Someone from the City offices will then contact you (typically within 1-2 days) and let you know that your Encroachment Permit has been processed. You can then submit your payment for the fees and deposit, and pick up your permit. You are also required to contact the City’s offices at least 24 hours prior to starting work (see permit for details).

     

How do I get my deposit back?

After the work is complete, including the removal of utility and construction identification markings, you must contact Lafayette City Offices, Engineering Department Encroachment Permit Hot Line (925) 299-3277 to request a final inspection. Once your project has been inspected by the engineering staff and all conditions of the permit have been met, the deposit will be refunded in the same manner in which it was made. Due to temporary staffing issues mentioned above, the check refund process may take 2-4 weeks, and credit card refunds may take 7 days or more.

 
ENCROACHMENT AGREEMENTS

Generally, the City of Lafayette prohibits property owners from installing or maintaining any encroachments within the public right-of-way; however, property owners may be permitted to install fences, landscaping or similar improvements within the public right-of-way upon execution of an encroachment agreement authorized by the Engineering Services Manager.

As approved by Resolution No. 2013-29 of the City Council on June 10, 2013, an encroachment agreement may be authorized provided such encroachments are consistent with the following :

A. The encroachment does not conflict with an adopted street improvement or similar plan, or one that is in development or can be reasonably anticipated;

B. The encroachment does not pose a public health or safety hazard, in the opinion of the Engineering Services Manager;

C. The encroachment would not substantially obscure the main property frontage, such as an opaque fence along the front of the house; and

D. The encroachment is sufficiently set back from the street curb or edge of pavement to not inhibit the reasonable use of the area, such as passenger-side access to parked vehicles. The typical setback should be no less than three feet, unless otherwise determined to be sufficient by the Engineering Services Manager with due consideration of prevailing surrounding conditions.

Within 30 days of receipt of a complete application, a request for an encroachment will be approved, conditionally approved, or denied by the Engineering Services Manager, who will provide written findings in support of his or her decision with specific reference to the factors listed above. Any property owner(s) unsatisfied with the decision may appeal it to the City Council, submitting their request in writing for an appeal showing facts conforming to the four criteria established above, within 10 days of the decision.

If the encroachment is approved, it will be documented in an agreement signed by the property owner(s), who will be required to indemnify, defend and hold the City harmless from any damage to City or third-party property caused by or arising out of the encroachment. The agreement shall also require the property owner(s) to remove or relocate the encroachment at any time at the owner's sole expense whenever deemed necessary or advisable by the City. Property owners shall also be required to obtain and maintain property liability insurance covering the owner's property and the encroachment in an amount required by the City, and the City shall be an additional insured on such policy. Other terms and conditions may be included by the Engineering Services Manager in the agreement, as deemed necessary or advisable.

How do I apply for an Encroachment Agreement for structures in the public right-of-way?

1. Submit a letter requesting the Encroachment Agreement, including justification as to why your case represents a special circumstance under which the encroachment should be allowed, and explaining how the location of the proposed work qualifies as a last resort.

2. Provide the City with a sketch or plans of the project.  Include the right-of-way or property line, and the improvements contemplated by the project.  Photos are beneficial.

3. Insurance: Provide a written certification from the property insurance carrier, indicating that it is able to provide the required coverage on the encroachment per the terms of the agreement.  Specifically, Property Owner must maintain homeowners insurance and property damage insurance covering the property including the encroachment area, in the amount of at least $500,000 per occurrence insuring against liability for damage to property and $1,000,000 for injury to or death of any person, or a single limit of $1,000,000, as a result of the placement or condition of the Improvements.  The policy shall name the City of Lafayette as an additional insured, and Property Owner shall waive subrogation in favor of the City.  Property Owner will waive any right of recovery it may have against the City because of payments made by the Property Owner or its insurer for damage to property or injury to or death of any person arising out of any act or omission of the City. Property Owner shall require its contractors performing work to construct the Improvements to add the City as an additional insured on contractor's commercial general liability policy using ISO form CG 20 38 or exact equivalent. Property Owner shall furnish the City with satisfactory evidence of the insurance and evidence that the carrier is required to give the City at least 10 days notice in advance of the cancellation or reduction in coverage of the required policies. If the encroachment is approved, the applicant will also be required to provide the City annually with evidence that they are continuing to maintain the required property liability insurance covering their property and the encroachment for the life of the improvements.

(Note that the insurance terms above are not negotiable, and no approval will be granted if the applicant cannot meet Lafayette's insurance requirements as stipulated in the agreement and described above.  Applicants applying for a retroactive permit and agreement must relocate the unpermitted encroachments outside of the public right-of-way if they are unable to meet these insurance terms.)

4. Submit a check for $500.00, payable to the City of Lafayette, to cover the agreement application fee.

5. If your application is approved, the Encroachment Agreement will then be drawn up by the City and sent to you.  You will need to execute the agreement in the presence of a notary.  Return the executed agreement and the required insurance certificates.  Also attach a legal description of your property (as shown on the Grant Deed for the property).  Before the City takes final action to record the agreement against the property, all proof of required insurance must be in good order.

6. After the agreement is consummated, the applicant or his/her contractor may complete an Encroachment Permit form for construction of the work.  Submit a check for $247.50, payable to the City of Lafayette, to cover the permit fee.  Once the permit (covering the specific conditions and requirements for construction of the work in the City's right-of-way) is ready to be issued, an additional payment, typically $2,500, will be due as a refundable deposit, returnable upon satisfactory completion of the work covered by the permit.

 

 

Resolving Encroachment Issues

Once an encroachment has been identified, property owners are obligated to resolve the encroachment issue, regardless of whether they are willing to accept a non-compliance report on their property.

The City Engineer has the authority to determine which encroachments pose too great a risk to remain in place. In those instances, Engineering Services will work with the property owner to ensure the encroachment is removed quickly, safely and the area is remediated to the satisfaction of the City.

Fortunately, for most encroachments, there are existing administrative processes which can be utilized to bring an encroachment into compliance. In order to be eligible for an Encroachment Agreement, the encroachment must comply with the City's Land Use Bylaw.

In order to comply with the Land Use Bylaw, the encroachment must be authorized by a valid Development Permit. Some developments do not require a Development Permit; however, they must adhere to the Land Use Bylaw regulations. If not, a Development Permit application will then be required so a variance can be reviewed. If the variance required to leave the development as built/located cannot be justified or is not within the authority of the Development Officer, the application will be refused. The property owner must then successfully appeal this decision to the City of St. Albert Subdivision and Appeal Board (SDAB). There are additional fees and time-sensitive dates that must be adhered to during these processes. Please contact the Planning & Development Branch at 780-459-1642 for complete details.

A set criteria is used to determine which encroachment mechanism will be used to correct unauthorized encroachments. In the event more than one encroachment or more than one type of encroachment is evident on the property, the more restrictive encroachment mechanism will be used to address all encroachments.

Once an encroachment is authorized by the City, the encroachment may continue to be used, but it shall not be added to, rebuilt or structurally altered, except:

  • as may be necessary to remove the encroachment; or
  • as may be necessary for the routine maintenance of the encroachment.

Please Note:

An authorized encroachment does not release the property owner from having to comply with Federal or Provincial requirements or other City bylaws. All costs, expenses, liabilities or other risk associated with an authorized encroachment shall be borne by the property owner.

Encroachment Authorization

It is the City's preference to resolve encroachments by having the property owner remove the encroachment and restore the affected area. If eligible to remain, property owners must decide whether they feel the benefit of the encroachment is worth the time, additional processes and expense involved in obtaining authorization from the City to leave the encroachment as located. Ignoring the outstanding encroachment issue is not an option. City staff will follow up with property owners to ensure the encroachment becomes authorized or removed. Failing to address the issue, could result in financial penalties and/or loss of personal property.

Once a property owner decides they wish to leave an encroachment as located, City staff will work with them to ensure the property owner is aware of the specific processes/fees required to have the encroachment become authorized.

The following links provide more information on the City's encroachment mechanisms and encroachment authorization.

Private Utility Companies

The City shares its utility right-of-ways and road right-of-ways with private utility companies. As part of the encroachment authorization process, property owners will be asked to contact representatives from AtcoGas, Fortis Alberta, Telus and Shaw Communications to determine if these utilities have any concerns related to the encroachment. These private utility letters of consent must be provided to Engineering Services for review. If any of the private utility companies do not support authorizing the encroachment, the encroachment must be relocated or modified to obtain their consent prior to the City authorizing the encroachment.

Sometimes the private utility companies will request their own Encroachment Agreement. This is a separate process from the City's processes and approvals.

Private Utility Contact Sheet

back to top

Encroachment Agreements

An Encroachment Agreement is a written agreement between the City and a property owner which becomes registered on the property's title. The Encroachment Agreement authorizes the encroachment and includes:

  • the location and identification of the encroachment;
  • the property owner’s responsibilities to maintain the encroachment;
  • terms or conditions under which the Encroachment Agreement is terminated;
  • the City’s right to have access to the land;
  • indemnification of the City, its agent and licensees;

The cost for an Encroachment Agreement is set out in Schedule E of Master Rates Bylaw 1/82 (as amended). For 2018, the fee is $543.00 and is a one-time fee that is payable at the time of application. The property owner is also responsible for the costs of registering the Encroachment Agreement and providing to the City an updated Certificate of Title, that shows the Encroachment Agreement registered on title. An Encroachment Agreement is transferable with the land and remains valid in perpetuity, subject to the terms of the Encroachment Agreement.

Encroachment Agreement Procedures & Requirements

Encroachment Agreement Application

back to top

City-Issued Conditional Letters of Consent

In a few circumstances, a City-Issued Conditional Letter of Consent will be executed rather than an Encroachment Agreement.

A letter of consent from a private utility company that is also affected by the encroachment is required as part of a City-Issued Conditional Letter of Consent. A City-Issued Conditional Letter of Consent is only valid for the encroachments shown on the accompanying Real Property Report which forms part of the letter. Additional encroachments will nullify the City-Issued Conditional Letter of Consent. A copy of the letter will be kept in the appropriate property file.

Encroachments which are eligible for a City-Issued Conditional Letter of Consent are:

  • portable sheds under 10 square metres in size, which are not constructed on a permanent foundation, nor connected to utility services and are not located on a utility right-of-way for drainage and the utility right-of-way does not contain any City utilities.
    • In this instance, a portable shed refers to a prefabricated style of shed that is easily moved by two people, without the assistance of equipment or mechanics.
  • fence encroachments of less than 0.20 metres on Parkland.
    • An allowance of 0.20 metres is granted as this matches the practice of indicating in the legend of Real Property Reports (RPR) that all fences are within 0.20 metres of the property line unless otherwise noted.
  • non-permanent encroachments on utility right-of-way for drainage as determined on a case-by-case basis at the discretion of the City Engineer and his delegate the Storm/Land Compliance Coordinator.
    • The City reserves the right to require the removal of the encroachment if it affects the functionality of the drainage system.
    • Concrete swales and any associated appurtenances must remain uncovered at all times.

back to top

Grandfathered Encroachments

Technically, there are no grandfathered encroachments. Existing Encroachment Agreements registered at the Alberta Land Titles (North) Office shall be honoured by the City, according to the terms and conditions of the agreement.

The Encroachment Agreement fee will be waived if in the past the City commented on an encroachment and did not require an Encroachment Agreement at that time, but now requires an Encroachment Agreement. The fee will only be waived if no new encroachments have been added.

The Encroachment Agreement fee will also be waived for encroachments on a utility right-of-way where there is an approved Development Permit or Building Permit which permitted the encroachment.

A long-term encroachment does not have grandfathered rights. Regardless of the length of time an encroachment has been in existence, unless it has been formally authorized by the City, the encroachment will have to be resolved using current encroachment standards.

back to top

Last edited: March 2, 2018

Related Pages

0 comments

Leave a Reply

Your email address will not be published. Required fields are marked *