§ 19-3. Obstructions and surface and air encroachments on public property.

(a)

Generally prohibited. No person shall encroach upon any public place except as authorized by law, either as set forth herein or specifically permitted in zoning districts having zero lot lines. To encroach means to construct, erect or maintain on, in, over or under any public place, right-of-way, roadway, parking strip and/or sidewalk, including the air space above them, any unauthorized vegetation, sign, building extension, staging, scaffold, marquee, clock, retaining wall or any other building or structure, or object, or to occupy a public right-of-way during construction activities for equipment or storage. Except as provided in section 19-5 or as permitted by law, all encroachments are obstructions, deemed to be public nuisances, and are prohibited, except as follows: The abutting property owner may be permitted to beautify it by the planting of grass when such does not interfere with the purpose of the city. In the context of this section, "grass" is a narrow leaved green herbage of the Gramineae family that does not exceed 12 inches in height. The abutting property owner may be permitted to install a "breakaway" mailbox with supports no larger than four inches by four inches, or a two-inch diameter standard steel or aluminum pipe, buried no more than 24 inches in the ground. If the public right-of-way includes a city-permitted curb, the abutting property owner may be permitted to beautify that portion of the public property by the planting of landscaping vegetation only; provided however that no vegetation other than grass may be planted within five feet of the curb, and no vegetation at maturity shall exceed 30 inches in height. Plants such as yucca, cacti or similar thorny plants are prohibited. No vegetation may be planted in proximity to a traffic control device so that its potential growth may obscure or diminish conspicuousness of the device, regardless of the presence of a curb. In the context of this section, "curb" is a concrete border forming part of a gutter along the edge of a street.

(b)

Encroachments generally. There are, on occasion, reasons for property owners to request they be allowed to encroach onto the city right-of-way and/or the airspace above a sidewalk or street or other public space within the city limits. It is the city's intent to carefully consider the merits of proposed encroachments within certain limitations. Commercial requests for encroachment may be considered differently than residential requests. The intent of this policy is to balance the reasonable requests of abutting property owners and the health, safety, welfare and convenience of the public, particularly in regards to beach access and parking in the sensitive areas of public beach access. Any encroachment granted pursuant to this section is considered temporary in nature, conveys no right or interest in property and is revocable at will by the city. No encroachment is permitted upon the opened or unopened streets or street ends or upon any sidewalk except as authorized by council pursuant to ordinance. No encroachment may decrease public parking areas. For encroachments on state owned rights-of-way, the applicant shall first secure a city permit before seeking a state permit. On encroachments on state owned rights-of-way, the city may grant a limited encroachment to the extent of its duties and obligations in regards to the state owned rights-of-way; provided however, a city issued permit shall not be valid unless and until a permit is issued on a state owned right-of-way. For city purposes, encroachment permits and liability insurance naming the city as an additional insured are not required if the encroachment is merely one of the three exceptions listed in [subsection] 19-3(a). A permit is required for all residential and commercial encroachments, other than those listed as exceptions in [subsection] 19-3(a), provided however liability insurance is not required for landscaping encroachments made pursuant to this section. An annual fee of $500.00 shall be assessed on all commercial properties. for every type of encroachment.

(c)

Application to the planning commission. An application to the planning commission for a revocable permit to encroach on city owned property shall be made by and in the name of the owner or the person acting in behalf of the owner, as shown by sworn statement. All applications shall be reviewed by the planning commission based upon its role of implementing the comprehensive plan and in light of the factors found in this section. When recommendations are required under this section, such recommendations of the commission are not binding upon the city council. Furthermore, by resolution, the city council may reverse or modify any action by the planning commission in regards to any decision made under this section.

(d)

Application and statement. The application shall set forth the name and address of the applicant, the nature and description of the proposed encroachment including layout, plant choice, etc, the location and description of city-owned property proposed to be encroached upon, the nature of the applicant's interest in and the location and the legal description of the property in connection with which the permit is sought to be obtained, the reasons for the application, such other information, including plats, as may be required by the planning office, and the following statement, attested to and witnessed under oath:

State of South Carolina
County of Horry

ENCROACHMENT PERMIT RELATING TO PRIVATE PROPERTY

TMS# _______ That, I am the owner of property located at _______ , designated on the tax map roles of Horry County as TMS# _______ , and that I, the undersigned have authority to bind and covenant on behalf of myself or the entity represented that I understand and agree that any permit issued hereon regarding an encroachment on abutting public property shall be issued pursuant and subject to the provisions of law; that such permit may be revoked by the city, acting by and through its city council or manager, at any time and that the encroachment must be removed within 30 days thereafter; that the city shall have the absolute right to remove the encroachment for any purpose at any time and shall not be required to replace or repair any encroachment so removed and shall be held harmless for any result from such removal; that no right, title or interest in any property owned by the city or expectation of continuation of encroachment shall vest or accrue to me by any reason of the issuance of such permit or exercise of the privilege given thereby; that I will not suffer or permit any dangerous or defective condition of property to exist in connection with the exercise of the privilege; that I am solely responsible for any maintenance or upkeep of the encroachment, and that I, either individually or on behalf of the entity I represent, am solely responsible for any liability which may result from the existence of the encroachment and that I will hold harmless the city for any damages arising out of, from or in connection with the exercise of the privilege granted by the issuance of the permit sought; and that I acknowledge that, if the requested permit is for anything other than landscaping vegetation, I must carry liability insurance in the amount of $500,000.00 per occurrence for as long as I encroach, naming the city as an additional insured, with notice of cancellation, and proof of insurance by way of certificate. Notice of a change in ownership shall be provided within 30 days of the change. This form bearing my signature may be filed by the City of Myrtle Beach at the Horry County Register of Deeds in relation to my property to establish a public record that such encroachment shall not be considered as an interest in land.

(e)

Landscaping permit by the planning commission. The planning commission is authorized to grant a residential or commercial landscaping encroachment permit, without a requirement of review by city council, if the requested encroachment is landscaping vegetation not greater than 30 inches in height at maturity; provided however that, in rights-of-way that do not include a public curb, no planting of new vegetation other than grasses shall be permitted in the area within ten feet of the paved roadway without city council approval, and in areas that do not include a public curb and that have an approach to a traffic control device, nothing but grasses may be planted for a distance of 30 feet on approach; and in rights-of-way that do include a public curb, no planting of new vegetation other than grasses shall be permitted within five feet of the curb. This delegation of authority for limited temporary encroachment privilege of this nature in no way restricts the legislative power or discretion of city council to act in the interest of public health, safety, welfare or convenience in regards to the rights-of-way, regardless of the permit or privilege of landscaping contemplated within this section. The application shall be filed with the planning director and shall be referred by him to other departments as might be affected by the issuance of this permit for their recommendation and comments. After such reference, the planning commission may approve such application and issue the permit requested if the application shows: The proposed encroachment would not interfere with the meaningful use of adjoining property, or cause public property to become unsightly, unkempt or be incompatible in use or appearance with neighboring properties; the proposed encroachment would not negatively affect existing or proposed vehicular or pedestrian ways, or become dangerous or hazardous to the public when used by the public for the purpose for which it was intended to be used; the choice of plant materialsor layout of the proposed encroachment will not itself become a dangerous or defective condition or unreasonably endanger or interfere with the public health, safety or convenience; the encroachment will not utilize bricks, pavers, timbers or other materials other than vegetation or utilize any underground piping within the ten feet of grassy area or interfere with any existing underground utilities; the encroachment will not negatively affect public accessibility to the beach and oceanfront, or pedestrian traffic; and the issuance of the permit is otherwise in the interests of the health, safety and welfare of the citizens of the city.

(f)

Planning commission action. If an application is made to the planning commission which does not meet the conditions as stated in this section, the planning commission shall deny such application or may offer a conditional approval upon the applicant's consent to such terms and conditions as the commission deems necessary to make the proposed encroachment meet the standards of this section.

(g)

City council review. An applicant has the right to submit to city council any petition regarding a denied application. City council may act in full discretion regarding encroachments on public rights-of-way.

(h)

Encroachments other than landscaping.

a.

Any application involving any object or structure, timber, stone or other material affixed onto or into the ground, or the paving or placement or maintenance of any material, other than exceptions listed in [subsection] 19-3(a) or landscaping vegetation approved by the planning commission above, so as to create a visual impression upon the public of a demarcation between public and private ownership or to accommodate or discourage parking; or any application involving the placement or suspension of any object or structure so as to project over a public right-of-way, except as authorized by other law, must be the subject of a review and recommendation by the Planning Commission, before action by city council or the manager as provided herein; provided however that no permit is required for the exceptions listed in [subsection] 19-3(a). The manager is designated to approve non-breakaway mailbox placement with a base area not exceeding two feet by two feet with appropriate insurance provided, without further planning commission or council action. Any action by the city council shall be in the exercise of legislative discretion.

b.

Within the boundaries of a defined mixed use development of 25 contiguous acres or more, under unified control or ownership, and subject to a redevelopment plan, an encroachment master plan may be implemented after review and approval by the planning commission and city council, provided that adequate insurance is maintained, the city is named as an additional insured pursuant to terms satisfactory to the city and the city is indemnified and held harmless from loss. Without limitation, such encroachments may include awnings, canopies, screens, balconies, cornice, scones, wayfinding signs, trellis structures, gazebos, benches, planters, play areas, kiosks, atms, fountains, bike racks, receptacles, door swings, flags, underground pipes and conduits, building foundation structures, grease traps, basins and separators, and historic markers. After approval by city council of the placement, the community appearance board shall review the master plan for aesthetic compatibility with the development.

(i)

Planning commission consideration. The encroachment location shall be posted with a sign indicating notice of the public hearing ten days prior to the public hearing. In considering its recommendation to council, the planning commission shall make findings of facts on the following: The proposed encroachment, by layout or materials choice, presents no physical threat of safety to pedestrians, motor vehicle drivers and passengers, or others in lawful use of the right-of-way or public space, or to their property; the proposed encroachment is compatible in use and design with the right-of-way or public space; and the constructed extension or encroachment will increase the assessed value of the building to which it is attached and will not decrease the value of any building in the immediate vicinity. Restrictions and conditions may be imposed as to height, weight and dimensions of the encroachment, aesthetics, or the time period of the permit, as may be appropriate to achieve the purposes of this section. The city manager may make such additional requirements as may be appropriate under customary business and legal practices.

(j)

Termination, notice of removal, removal cost as a lien. Whenever the city makes a finding that the encroachment is not permitted or is no longer in compliance with the provisions of the criteria of this section, a written notice shall be issued to the owner of the encroaching landscaping stating the deficiencies and corrective action required and providing 30 days from the date of notice for compliance. If the owner fails to achieve compliance within 30 days, the city manager shall be authorized to have the encroachment removed and the costs of removal and storage, if any, assessed as a lien against the property.

(k)

Time for compliance. Upon the effective date of this section, all owners of property with a lawfully granted encroachment previously granted shall be grandfathered as to any requirement, subject however to the city council legislative discretion to act at any time on matters of the public health, safety, welfare, convenience, and economy. Upon the effective date of this section, all owners of property with an unlawfully existing encroachment, whether vegetation or otherwise, shall have 30 days, upon notice from the city, to submit an application for a lawful encroachment or approval. If approved by the appropriate person or body, the encroachment shall be permitted to remain. If not approved or if no application is made, any encroachment not being lawfully permitted is declared to be a public nuisance and may be removed at the discretion of the manager and the cost of removal, if any may be assessed as alien against the property.

(Code 1980, § 3-1-4; Ord. No. 98-05, § 2, 1-13-98; Ord. No. 2006-52, 6-13-06; Ord. No. 2006-70, 7-25-06; Ord. No. 2008-06, 1-22-08)