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HomeMy WebLinkAbout20052 ORD - 11/03/1987AN ORDINANCE AMENDING CHAPTER 13 OF THE CORPUS CHRISTI CITY CODE BY AMENDING ARTICLE IV. EXCAVATION: PROVIDING FOR SEVERABILITY; PROVIDING FOR PUBLICATION. SECTION 1. That Chapter 13 of the City Code is hereby amended by amending Article IV. EXCAVATIONS, to hereafter read as follows: Sec. 13-150. Definitions. For the purposes of this article, the following words and terms shall have the meanings ascribed to them respectively: Excavation: Any act by which soil or any other similar matter is dug, cut into, quarried, uncovered, removed, displaced, relocated or bulldozed. Soil: Any earth, sand, clay, loam, caliche, gravel, humus, rock, dirt or any other matter in or upon the ground, without regard to the presence or absence therein of minerals or other organic matter. Sec. 13-151. Permit required. It shall be unlawful and a violation of this article for any person acting for himself or acting as an agent, employee, independent contractor or servant of any other person to commence an excavation, to excavate or continue to excavate or to maintain an existing excavation within the city or to work upon or assist in any way in the execution or operation of any such excavation, without an excavation permit having been issued by the authority of the city council in accordance with the terms of this article. Sec. 13-152. Exemptions from provisions of article. Nothing in this article shall be construed to affect or apply to any person engaged in normal agricultural, horticultural and residential enjoyment and use of property. The provisions of this article shall not apply to nor affect a person in excavating to install, construct or complete a structure, building or facility of any kind when the plans and specifications for such objective have been submitted and approved by the department of engineering services, the building official, or planning commission of the city or for which a permit has been issued by the department of engineering services or building official; provided, that the progress on the facility or project is not delayed for a period of more than two (2) weeks, excepting delays attributable to acts of nature, and further providing, that such excavation created is not of a perma- nent nature and will not be left open and uncovered on the completion of the project without authorization of such permit. The provisions of this article shall not apply to nor affect the excavation operations of private utility concerns constructing facilities by virtue of a franchise or a special permit issued by the city; provided, that the progress on the private utility project or facility is not delayed for a period of more than two (2) weeks, excepting delays attributable to acts of nature, and further providing, that such exca- vation created is not of a permanent nature and will not be left open and uncovered on the completion of the facility or project. This article shall not apply nor affect the operations of the United States of America, the State of Texas nor any political subdivision of either thereof. 06P.129.01 1 MICROFILMED 20052 Sec. 13-153. Limitations on locations of excavations. No excavation permit shall be issued for the commencing of an excavation which is located nearer than one hundred'fifty (150) feet of any residence, building or structure, without the applicant having first secured written permission of the owner thereof. No excavation permit shall be issued for the commencing of an excavation which is located nearer than three hundred fifty (350) feet to any exterior property line boundary of lands utilized for a public or parochial school, a college, a university, a hospital, a church, a public building, a cemetery or within an area where there is on public record re- strictions or convenants prohibiting excavations. The city council, through the planning commission, shall have the power and reserves the authority to refuse any application for an excavation permit at any particular location within the city limits, by reason of such particular lo- cation and the character and value of the permanent improvements already erected on or approximately adjacent to the particular location in question, and the use to which the land and surroundings are adopted for school, college, university, hospital, park, civic purposes or for health and safety reasons, or any of them, when in the planning commission's opinion the excavating or operation of an excavation on such particular location might constitute a nuisance, be injurious to public health, a public hazard or a disadvantage to the city in its planned growth, or to its inhabitants as a whole, or to a substantial number of its inhabitants or visitors as a group. Sec. 13-154. Duration of permit; application for new permits. Each excavation permit issued shall be issued for a specific time period with a maximum period of one year, after which period the permit is void and the person to whom the permit was issued must make a new application for a new permit for each succeeding year or portion of a year that an excavation is operated or maintained. Sec. 13-155. Application for permit - Generally. Permits required by this article shall be issued only after an application, in the form of an affidavit, is executed in duplicate and presented to the department of engineering services, which application shall be referred to the planning commission of the city for review, consideration and recommendation. The department of engineering services shall be bound to act in accord with the planning commission's recommendation in the issuance of each excavation permit. Sec. 13-156. Same - Information required. Each application for an excavation permit must include all of the following information in detail before it can be accepted by the department of engineering services and before it can be considered by the planning commission: (1) The identity and residence address of the applicant. (2) The identity and residence address of the owner of the land. (3) The location and legal description of the land. (4) A positive statement as to whether the land has been platted. 06P.129.01 2 (5) A tax certificate stating that city, county, state and school dis- trict ad valorem taxes have been paid and are current concerning the land. (6) The purpose or reason for the removing or moving of the soil from or on the land. (7) The quantity in cubic yards of soil to be moved or removed from the land. (8) In the case of removal, the place to which the soil is to be removed. (9) The proposed date of completion of the soil removal or moving. (10) A positive statement that no buildings, residences or structures are within one hundred fifty (150) feet of the proposed excavation. (11) A positive statement that the proposed excavation shall not block, encumber or close any public street, way or alley, or disturb the lateral support thereof. (12) A positive statement that the proposed excavation shall not be located nearer than three hundred fifty (350) feet to any exterior property line boundary of lands utilized for a public or parochial school, a college, a university, a hospital, a church, public building or a cemetery. (13) A positive statement that the proposed excavation is not and shall not be located in an area which has on public record restrictions or convenants prohibiting such a use of the property. (14) The proposed slopes and lateral supports to be used in the excavation shall be set forth. (15) The present and proposed arrangements made for surface water drainage. (16) The safety precautions to be installed and maintained at the site, such as fences around the excavation, traffic -control devices and drainage system to keep the excavation from collecting water within it. (17) The intended use or condition of land upon completion of the exca- vation process. (18) Such other pertinent data as the department of engineering services and planning commission may hereafter by resolution require. Sec. 13-157. Same - Review by planning commission. Upon receipt of an application for an excavation permit, the planning commission of the city shall set the same down for public hearing. Written notice of such public hearing before the planning commission shall be sent to the owners of real property located within four hundred fifty (450) feet of the property on which the excavation is proposed. Such notice is to be given at 06P.129.01 3 least ten (10) days before the hearing by mailing such notice to the owners who have rendered their property for city taxes, as the ownership appears on the last approved city tax roll. When a portion of the property located within four hundred fifty (450) feet of the property upon which the excavation is proposed is located outside the city limits or which was annexed to the city after the final date for making the renditions which are included on the last approved city tax roll, then notice to such owners shall be given by publication as set forth below. In addition to the notice herein provided, notice of such public hearing shall be published once in the official publication of the city, at least fifteen (15) days prior to the date of such public hearing. Upon conclusion of the hearing, the planning commission shall submit its recommendation to the department of engineering services which shall grant or refuse the permit in accordance with such recommendation. Sec. 13-158. Same - Factors to be considered. In considering and reviewing an application for an excavation permit the planning commission shall be guided by the general purpose of orderly municipal planning, the prohibiting of any condition or the doing of any act constituting or creating a nuisance, health hazard or endangering the lives or property of others. As aids in accomplishing these purposes, the following points shall be considered by the planning commission in reviewing applications for excavation permits; however, such aids shall not be exclusive in the commission's consid- eration and ultimate recommendation: (1) Soil and earth erosion by water and wind. (2) Surface water drainage and water drainage facilities of the exca- vation. (3) Lateral supports of the excavation. (4) Condition in which excavation to be maintained and safeguards to be taken to prohibit creating a nuisance, health hazard, attractiveness to children, and features provided to dispense with the endangering of the lives and property of the public. (5) Land values and uses in the area of the excavation. (6) Proposed use or condition of land upon completion of excavation process. (7) Such other factors as may bear or relate to the coordinated, adjusted and harmonious physical development of the city. In arriving at its ultimate recommendation, the planning commission may attach such special conditions thereto as may be reasonably necessary to attain the overall purpose of this article. Sec. 13-159. Permit fee. On submission of an application for an excavation permit to the department of engineering services a fee shall also be submitted for the adequate administration of this article in an the amount of two hundred fifty dollars ($250.00). In the event that an excavation permit is recommended for issuance, 06P.129.01 4 an additional fee of fifty dollars ($50.00) per month for the duration of the permit shall be paid in advance prior to issuance of the permit for the purpose of inspecting the site during the excavation process. Sec. 13-160. Appeals from permit denial or granting to city council. (a) In the event an applicant is refused an excavation permit, he may, not later than ten (10) days from the date of receiving notice of such refusal, appeal to the city council for a public hearing on the refusal by directing a letter to the city council setting forth therein the date of denial of the excavation permit and the reasons the applicant feels he has been wronged in being refused the permit. A fee of one hundred dollars ($100.00) shall be collected for processing the appeal. (b) In the event the planning commission recommends to the department of engineering services that the permit be granted, any person may, within ten (10) days of the recommendation to grant the permission by the planning commission, appeal to the city council for a public hearing on the question of the granting or refusal, as the case may be, of the permit by directing a letter to the city council addressed to the office of the city secretary, at the city hall, setting forth therein the date of the recommendation of the planning commission and the reasons the person so appealing feels that he has been or will be injured by the action from which he is taking such appeal a fee of one hundred dollars ($100.00) shall be collected for processing the appeal. (c) Upon the filing of such appeal, the right to operate under any such excavation permit shall be suspended until final determination by the city council and then in accordance with the final decision of the city council. (d) The city council shall, on receiving such notice of appeal, direct the city secretary to place it on the city council's work agenda to be con- sidered in the due order of city business. The city secretary shall then notify the appellant as to the date and place where the city council will consider the appeal and publish a notice one time in the official newspaper at least five (5) days before the date when the city council will consider the appeal. (e) The city council on conducting the public hearing regarding the appeal may, by majority vote of all of the council, either grant or refuse to grant the permit. In the event the permit is granted, the permit shall be issued by the director of engineering services in accordance with the direction of the city council. Sec. 13-161. Issuance of permit. All excavation permits shall be issued by the director of the department of engineering services. Sec. 13-162. Form of permit. The excavation permit shall be in such form and numbered as may be pre- scribed by the department of engineering services and shall contain any and all special conditions set forth in the planning commission's recommendation or the direction of the City Council. 06P.129.01 5 Sec. 13-163. Transferring, selling, assigning, etc., of permit. No excavation permit issued under the terms of this article to any person shall ever be transferred, sold, assigned, or otherwise disposed of in any manner to any other person without the written consent of the city council. Sec. 13-164. Revocation of permit. Any excavation permit issued under this article where a notice to cease operations thereunder is issued by an inspection official may be revoked by the planning commission after notice and hearing for: (1) Violation of any condition of'the excavation permit; (2) Violation of any provision of this article or any other applicable ordinance or law relating to excavations; (3) The existence of any condition or the doing of any act constituting or creating a nuisance or endangering the lives or property of others. Sec. 13-165. Appeals from permit revocation. Any person who has been issued an excavation permit who is aggrieved by its revocation by the planning commission of the city may appeal to the city council by filing with the city secretary a written notice thereof within five (5) days from the date of the revocation of the excavation permit a fee of one hundred dollars ($100.00) shall be collected for processing the appeal. The aggrieved person shall be given a hearing before the city council, in due order of business, after which the city council may modify or overrule the planning commission's decision. Written notice of the time and place of such hearing shall be served upon the person to whom the permit was granted at least four (4) days prior to the date set for such hearing. Such notice shall also contain a brief statement of the grounds to be relied upon for revoking such excavation permit. Notice of the hearing may be given by personal delivery thereof to the person to be notified or by deposit in the United States mail in a sealed envelope with postage prepaid, addressed to such person to be notified at the address appear- ing in his application. In the event any appeal is taken from the decision of the planning commission, in the manner prescribed above, all work shall be stopped at the excavation while the appeal is pending. Sec. 13-166. Inspection - Right of entry of department of engineering services. For the purpose of administering and enforcing this article, employees of the department of engineering services shall have the right to enter into and upon any lands within the city limits, in or upon which an excavation exists or on any lands on which operations are being conducted in creating an excavation, to examine and inspect such lands and excavations, to determine whether the excavation itself or the operations in creating an excavation are in violation of this article and to further determine whether an excavation permit has been secured as is required in this article. 06P.129.01 6 Sec. 13-167. Same - Notice of violations. If the personal inspection provided for above reveals that the excavation is being operated or maintained in violation of the excavation permit issued, the inspecting official shall immediately give notice in writing to the person in charge at the site of the excavation to cease operations, setting forth therein the exact reason for the issuance of the notice. Sec. 13-168. Same - Cessation of operations; time limitation for correction of violations; additional inspection. After issuance of the notice as provided for above, there shall be no further operation of the excavation until the violations complained of by the inspecting official have been remedied. The operator shall have three (3) days from the date of receipt of the complaint notice from the inspecting official to remedy the violations complained of by the inspector and to notify the department of engineering services of the city that the violations complained of have been remedied and that the excavation is ready for additional inspection. Sec. 13-169. Same - Procedure upon failure to remedy violations. In the event an operator of an excavation fails to remedy the violations complained of as provided, the inspecting official shall notify the planning commission of the violations discovered and request that a hearing be set for a revocation of the operator's excavation permit. A continuation of work or operation of the excavation, other than to remedy the violation complained of, after written notice has been received by the operator to cease the excavation operations shall constitute a violation of this article. Sec. 13-170. Certain excavations declared nuisances. Any excavation located within the city limits, or hereafter created within the city limits, or within five thousand (5,000) feet of the city limits shall and does constitute a nuisance when maintained or permitted to exist by any person in an unwholesome or nauseous condition, or in a manner by which stagnant water accumulates, or in a manner in which water collects where it is possible and probable mosquitoes will breed, or in a condition where rats could harbor, or in a manner and condition constituting a breeding place for flies, or in a manner and condition where filth, garbage, trash, debris and other discarded material accumulates and is deposted, or is maintained or permitted to exist in an unfenced, open condition, accessible to children and other members of the public, or is maintained and worked in such a manner as to disturb, effect or destroy the lateral support of or block and impede traffic on any public street, alley, road or way, or that is maintained or permitted to exist in any condition which constitutes a possible and probable medium of transmission of disease to or between human beings, or to maintain or permit to exist any one or more of the above -enumerated conditions. It is further declared that any person in locating or maintaining any excavation in violation of the provisions of this section shall be subject to the penalty for the violation of this Code and is hereby deemed to be maintained a nuisance. Nothing herein shall in any way reduce the remedies which the city may otherwise have to regulate, correct, abate or abolish any nuisance within the city limits or within five thousand (5,000) feet of the city limits. 06P.129.01 7 SECTION 2. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision hereof be given full force and effect for its purpose. SECTION 3. Publication shall be made one time in the official publication of the City of Corpus Christi by publishing the caption stating in sbustance the purpose of the ordinance, this ordinance to become effective upon such publication. 06P.129.01 8 That the foregoing ordinance was read for the first time . nd p ed to its second reading on this the t/,7a day of :',O.MeJ �19 / , by the following vote: Betty N. Turner j���— Clif Moss David Berlanga, Sr. C2,�;(,(1LIL Bill Pruet Leo Guerrero L'A/v1I— Mary Rhodes Frank Mendez Mary Pat Slavik Linda Strong That the foregoing ordinancejos read for a second tim and passed to its third reading on this the day of , 19g7 , by the following vote: Betty N. Turner David Berlanga, Sr. Leo Guerrero Frank Mendez Clif Moss Bill Pruet Mary Rhodes Mary Pat Slavik Linda Strong That the foregoing ordin4nce was s ileac, for the gird time and passed finally on this the \ day of C�►li�iJ 19 )% , by the following vote: Betty N. Turner David Berlanga, Leo Guerrero Frank Mendez otp Sr. pp� �"�""� (�t.r �w-e Clif Moss Bill Pruet Mary Rhodes Mary Pat Slavik Linda Strong 0 � 42— PASSED AND APPROVED, this the 3 day of V1)1ft. fK_Lt&) , 1917 ATTEST: ity ecretary APPpROVED: %/_DAY OF 1907: HAL GEORGE, CITY ATTORNEY 99.044.01 THE CITY OF CORPUS CHRISTI, TEXAS 20052 PUBLISHER'S AFFIDAVIT STATE OF TEXAS, las: Ad#69306 County of Nueces. ) City of C C .a' Before me, the undersigned, a Notary Public, this day personally came., �_.. Deanne D Palmer .., who being first duly sworn, according to law, says that he is the „;:Senior Accounting Clerk of the Corpus Christi Caller and The Corpus Christi Times, Daily Newspapers published at Corpus Christi, Texas,, in said County and State, and that the publication of --..NOTICF OE..PASSAGE ..OE..OR IDAN(',F 470052_AMF.NTJN ..CHAP.TEE..13..0E.. 3E_CQAPJJS..CERISTI..GODEilY of which the annexed is a true copy, was published in ___Corpus Christi Caller -Times -�_ on the' 9 day of.......19-4 and once each consecutive.....da.y ane- ..... 23.00 daI.._._..._..thereafter for one Basi r ?a---' ... Deanne D Palmer Subscribed and sworn to before me this..12th _.._.day of..N i ' -411/ Notary lic,ueces County, Texas 6.30.89 Eugenia S Cortez NOTICE OF PASSAGE OF f 0RDINANCE 11 20052 AMENDING CHAPTER 13 OF4'.. THE CORVUS CHRISTI CITY " CODE BY AMENDING EXCAVATIONARTI- ". CLE IV, re PROVIDINGOFOR DINGERA FOR i3 TY; PUBLICATM.passss Was Was ped and approved byof Corpua ChrisvTexas l of the C0 the 3rd day of November, 1 1987 The full text of said 1 ordinance is available to the public in the Office of the Gty , Secretary. /s/ Armando Chapa City Secretary , City of Corpus Chnsu V