What Is a Right-of-Way Permit? Working in the Public Street

A right-of-way permit is the authorization by a government agency for a private party to construct, excavate, or place an object on land that belongs to the public. It is issued by the agency that owns the corridor---usually a public works or engineering department---and it is different from zoning approval and a building permit.

# What a Right-of-Way Permit actually Covers

Acquired by dedication, reservation, prescription, or condemnation, a right-of-way is a strip of land that is to be occupied by a street, trail, water line, sanitary sewer, or other public utility.^[1] Any building, fence, sign, structure, or object placed in, on, under, or over that strip is considered a right-of-way encroachment.^[2] The permit is what makes that encroachment legal.

Common triggers can include:

• Driveway approaches and curb cuts connecting a site to the street
• Utility laterals for water, sewer, gas, electric, and telecom
• Sidewalk, curb, and gutter construction or replacement
• Excavation and trenching in the paved section
• Lane or sidewalk closures during construction
• Street trees, landscaping, and sign placement in the parkway
• Special events occupying the roadway

In places like California, the trigger is broadly defined at a state level, labelling any tower, pole, pipe, fence, billboard, stand, building, or structure of any kind as an encroachment. ^[3]

# Common Misconceptions

The conditions attached to a right-of-way permit are important because the public land will remain long after the developer wraps up their project. Common conditions include a traffic control plan conforming to the MUTCD, a certificate of insurance naming the agency as additional insured, a performance or restoration bond, and restoration to public works standards.^[4] Some ordinances require the developer to extend their guarantee to fix problems such as settling or defective construction for two years after the agency accepts the work.^[5]

Many developers are unaware of how long they actually need to abide to conditions attached to the permit. Ultimately, the developer's responsibility does not end when construction is finished; under a two-year warranty, the developer may still have to come back---developers can underprice this obligation, only budgeting for initial repairs.

The other trap lies in misunderstanding who actually owns the road. A street inside city limits may still be a state highway, meaning that the city cannot issue the permit and the state DOT must.^[6]

Additionally, many developers treat permits as ownership, while in reality, they are revocable. California Department of Transportations' permits, for example, are revocable on five business days' notice, and immediately in an emergency.^[7] A revocable permit is not a property right.

# Related Terms

• Right-of-Way: the land strip itself, and how it gets dedicated during subdivision
• Subdivision: the approval process where rights-of-way are dedicated and improvements bonded
• Easement: the private-law counterpart granting use of land without transferring it
• Building Permit: the on-site construction authorization a right-of-way permit does not replace

# Frequently Asked Questions

# Do I need a right-of-way permit if I already have a building permit?

Usually yes. A building permit authorizes work on your property, while a right-of-way permit authorizes work in the public corridor beyond your property line. The difference between those is significant; they go through different departments, different applications, and often different review timelines.

# Who issues a right-of-way permit?

The agency that owns the corridor is responsible for issuing the permit. For most local streets, that is the city or county public works or engineering department. If the street is a state highway, the state department of transportation issues it instead---even inside city limits. Confirming ownership before applying is incredibly important for developers because guessing wrong could cost weeks.

# How much does a right-of-way permit cost?

Fees for a right-of-way permit vary widely, ranging from under a hundred dollars for a simple excavation permit to substantially more for complex work. It's also important to note that the larger cost is usually not the fee; bonds, insurance, traffic control, inspection charges, and permanent restoration performed by the agency or its contractor dominate the total.

# Is a right-of-way permit permanent?

Generally, it is not. Rather than granting a lasting interest in the corridor, they authorize a defined scope with a defined windows, and they are revocable. For example, encroachment permits for the California Department of Transportation are revocable on five business days' notice and immediately in an emergency.