[HISTORY: Adopted by the Mayor and Council of the Borough of Fanwood 12-13-2005 by Ord. No. 05-26R. Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks - See Ch. 259.
Newspaper distributors have placed and have been placing newsracks on or along public roadways, streets, sidewalks, ways or places within the Borough of Fanwood (Borough). The Mayor and Council are concerned with the potentially dangerous conditions created by the placement of these newsracks on or along public roadways, streets, sidewalks, ways or places and choose to regulate their placement.
As used in this chapter, the following terms shall have the meanings indicated:
DISTRIBUTOR
The person responsible for placing and maintaining a newsrack on or along a public sidewalk, roadway, way, place or street.
NEWSPAPER
Any newspaper of general circulation, as defined by general law; any newspaper duly entered with the Post Office Department of the United States, in accordance with federal statute or regulation; any newspaper filed and recorded with any recording officer as provided by general law; and any news periodical and/or advertising flyer.
NEWSRACK
Any self-service or coin-operated box, container, storage unit or other dispenser which is installed, used or maintained for the display, sale and/or distribution of newspapers.
PERSON
Any corporation, company, association, society, firm, partnership, or individual.
ROADWAY
That portion of a street which is improved, designated or ordinarily used for vehicular travel.
SIDEWALK
Any surface provided for the exclusive use of pedestrians.
STREET
All the area dedicated to public use for public street purposes and shall include but not be limited to roadways, parkways and alleys.
It shall be unlawful for any person to erect, place, maintain or operate on or along any public roadway, street, sidewalk, way or place in the Borough any newsrack without first or within 30 days of the placement thereof having obtained a permit from the Borough Clerk as set forth in this chapter. One permit may be issued to include any number of newsracks and shall be signed by the distributor. The requirements of this chapter shall not apply to any state highway right-of-way as defined by N.J.A.C. 16:41B-1.1.
With regard to newsracks already in place as of January 1, 2006, the permitting procedure shall be as follows:
A. 
The Borough shall initiate a Borough-wide survey of existing newsracks located on or along public roadways, sidewalks, streets, ways or places. The survey shall identify the locations of newsracks within the Borough. The distributor shall be notified as to the need to apply for a permit and as to which existing newsracks are found to be in violation of the provisions of this chapter. Notices of noncompliance under this subsection shall conform with the requirements set forth in § 201-11 of this chapter.
B. 
All existing newsracks that conform with this chapter as identified during the survey shall be deemed in compliance with this chapter. The Borough shall prepare and provide to the distributor a list of those existing newsracks deemed in compliance with this chapter, and each such distributor shall file the required application and pay the required permit fee within 30 days after receipt of such list. Said list shall be incorporated into the format of a single application per distributor. A permit shall be issued by the Borough upon the submission of the application and approval by the Mayor and Council; provided that the application bears the distributor's signature, includes all information required by this section; and is accompanied by payment of the appropriate fee(s) as established in § 201-11 of this chapter. In the event the application, accompanied by the requisite information and fee(s), is not returned to the Borough within 30 days of receipt of the list from the Borough by the distributor, the distributor shall be deemed as to those newsracks listed thereon to be in violation of this chapter.
A. 
Application for a permit for a new newsrack shall be made, in writing, to the Borough Clerk and approved by the Mayor and Council upon such form as shall be provided and shall contain the name, address and telephone number of the distributor, the location or the proposed location of said newsrack or newsracks and a certification that such location(s) is (are) in conformity with this chapter. It shall be signed by the distributor and shall comply with the other provisions of this chapter. Permits or notices of noncompliance shall be issued within 45 days of receipt of the application. In the event no action is taken within 45 days, the continued use and maintenance of the newsrack in question shall be permissible until such time as a notice of noncompliance, if any, is issued.
B. 
An application may include a single or any number of proposed specific locations for the newsrack or newsracks. The Borough Clerk shall, upon receipt of the application, request an examination by a representative of the Borough Police Department to certify as to whether the newsrack or newsracks comply with this chapter.
A. 
A newsrack or newsracks may be installed without prior inspection of the location as set forth in § 201-3 above, but such newsrack or newsracks and the installation, use or maintenance thereof shall be conditioned upon compliance with the provisions of this chapter. An annual permit fee of $10 per newsrack shall be required to be paid to the Borough by the distributor to cover the cost of the inspections and the processing of the application.
B. 
Permits shall be valid for one-year or as long as all of the conditions of this chapter have been satisfied, whichever is sooner. In the event of a change in the distributor, the permit(s) shall remain valid as long as the location(s) remain the same and the Borough Clerk is notified, in writing, of such change and the new distributor accepts the terms and conditions of the permit(s).
Permits shall be valid for a period of one-year beginning April 1 and expiring on March 31 of the following year and shall be renewable pursuant to the procedure for original applications referred to in § 201-5 and upon payment of the per-newsrack permit fee of $10 per annum.
Within 30 days after an application has been filed, the Borough Clerk shall certify to the Mayor and Council as to whether it is complete and ready for the issuance of a permit. In the event that a permit is not issued by the Mayor and Council for any location for which a permit is sought because it is deemed not in compliance with this chapter, the Clerk shall notify the distributor who may appeal within 10 days from the date of receipt of notice of the denial of the permit. At a hearing, the Mayor and Council shall review the application and the proposed location in conjunction with the standards contained in this chapter, and the distributor shall have the opportunity to submit written evidence or testimony on its behalf.
A. 
No permit shall be issued or allowed to be continued in operation unless the distributor and/or any other person, organization, firm or corporation on whose behalf the application is made, by filing such application, represents, stipulates, contracts and agrees that they will assume the unconditional obligation and thereby agree to, jointly and/or severally, defend, indemnify and save the Borough, its agents, servants and employees harmless against liability for any and all claims for damage to property or injury to or death of persons arising out of or resulting from, irrespective of fault, the issuance of the permit or the installation, use, control, maintenance or ownership of any newsrack(s) permitted.
B. 
The application shall include an indemnification agreement as follows: The applicant, and any other persons, organizations, firms or corporations on whose behalf the application is made, represents, stipulates, contracts and agrees that he/she/it does jointly and severally agree to defend, indemnify and hold harmless the Borough against liability for any and all claims for damage to property or injury to or death of persons arising out of or resulting from the issuance of the permit or the installation, use, control, maintenance or ownership of the newsrack(s) permitted, unless due to the sole negligence of the Borough. Such representation shall include the requirement that the applicant and/or any other person, organization, firm or corporation shall provide a legal defense or reimburse the Borough for all legal costs incurred.
Any newsrack, which, in whole or in part, rests upon or over any portion of any public sidewalk, roadway, street, place or way or which projects onto, into or over any part of any public roadway, street, sidewalk, place or way shall comply with the following standards and shall be located as provided herein.
A. 
No newsrack shall exceed 60 inches in height, 36 inches in width or 30 inches in depth.
B. 
No newsrack shall be used for advertising or publicity purposes other than that dealing with the display, sale or purchase of the newspapers sold or distributed therein. This provision shall not take effect until April 1, 2007.
C. 
Each newsrack, where the newspapers are available for sale, shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event that said person is unable to receive the newspaper for which payment was made. The coin-return mechanism shall be maintained in good working order at all times.
D. 
Each newsrack shall have affixed to it, at a readily visible place so as to be seen by anyone using the newsrack, a notice setting forth the name and address of the distributor and the telephone number of a working telephone service to call to report a malfunction of the coin-return mechanism or to give the notices provided for in this chapter.
E. 
Each newsrack shall be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack shall be serviced and maintained so that:
(1) 
It is reasonably free of chipped, faded, peeling and cracked paint.
(2) 
It is reasonably free of rust and corrosion.
(3) 
The clear plastic or glass parts thereof, if any, through which the publications therein are viewed are unbroken and reasonably free of cracks, dents, blemishes and discolorations.
(4) 
The paper or cardboard parts or inserts thereof, if any, are reasonably free of tears, peelings or fadings.
(5) 
The structural parts thereof are not broken or unduly misshapen and are intact.
(6) 
It is reasonably free of dirt and grease.
F. 
No newsrack shall be used or maintained which projects onto, into or over any part of any roadway or curb, or which rests, wholly or in part, upon or over any portion of any curb, roadway or street.
G. 
No newsrack shall be permitted to rest upon, in or over any public sidewalk, place or way when it:
(1) 
Endangers the safety of any person or property;
(2) 
Unreasonably interferes with or impedes the flow of pedestrians or vehicular traffic, including any legally parked or stopped vehicle;
(3) 
Unreasonably interferes with the ingress to or egress from my residence or place of business;
(4) 
Unreasonably interferes with the use of traffic signs or signals, hydrants or mailboxes permitted at or near said location; and/or
(5) 
Unreasonably interferes with the response to an emergency situation by a police officer, fireman, and/or ambulance corp person or medic.
H. 
A newsrack shall be chained, bolted or otherwise securely placed so as to prevent it from being blown down or around and to reasonably prevent personal injury or property damage due to tilting, tipping or overturning. No newsrack shall be chained, bolted or otherwise attached to any public fixture, including, but not limited to, official signs, sign supports, guide rails, traffic signal supports, highway lighting supports, telephone pole, controller boxes, fire hydrants, or bus shelters.
I. 
Newsracks may be placed next to each other, provided that no group of newsracks shall extend for a distance of more than six feet. Newsracks may be chained or otherwise attached to one another; however, no more than two newsracks may be joined together in this manner, and a space of no less than 18 inches shall separate each group of two newsracks so attached.
J. 
No newsrack shall be placed, installed, used or maintained:
(1) 
Within three feet of any marked or unmarked crosswalk.
(2) 
Within 12 feet of a curb return (from point of tangency to point of tangency).
(3) 
Within 10 feet of any fire hydrant, fire call box, police call box or other emergency facility.
(4) 
Within three feet of any driveway.
(5) 
At any location whereby the clear space for the passageway of pedestrians is reduced to less than five feet.
(6) 
Within three feet of or on any public property improved with lawn, flowers, shrubs, trees or other landscaping.
(7) 
Within 10 feet to the rear of any sign or other demarcation marking the beginning of a designated bus stop.
(8) 
Within three feet of any bus bench, except where such bench is within a bus shelter, in which event this restriction shall not apply provided that the newsrack is not placed within such bus shelter.
(9) 
Within 15 feet of any municipal building or historic building listed on the federal or state historic register which is not directly on a public street.
A. 
The continued placement, use and maintenance of newsracks is conditioned upon compliance with all of the provisions of this chapter. If any of the provisions of this chapter is alleged to have been violated or if the location, installation, or condition of the newsrack no longer meets with the specifications of this chapter and any amendments thereto, the distributor shall be notified of the noncompliance by the Borough. The notice shall state the specific provision(s) of this chapter which are alleged to have been violated. The notice shall further state that, upon request by the distributor within 15 days of the receipt of said notice, the Borough Clerk or his/her designated representative shall meet with the distributor to discuss the basis for the determination that a violation exists and any proposed means of eliminating any violations. That meeting shall take place within 30 days of said request. A request for such a meeting shall stay the further enforcement of this chapter, except in the event that the Borough determines that an emergency situation exists. Following any such meeting, the official issuing the notice of violation may rescind the notice if it is determined that there was no violation or in the event the alleged violation is otherwise eliminated. The official may also grant up to 30 days, but not less than 15 days, for the correction of any violation upon request of the distributor.
B. 
If within 30 days after mailing the notice of noncompliance, or within 30 days after the meeting referred to above, whichever is later, in the event a meeting is requested and does not resolve the dispute in a mutually acceptable manner, or the distributor has failed to remove the newsrack or otherwise correct the violation or reason for noncompliance, the permit shall be revoked and the distributor shall be notified that the permit has been revoked.
C. 
A distributor may appeal from a decision to revoke a permit or a decision not to grant a permit within 15 days of the date of receipt of a revocation notice or a notice that a permit has not been granted. The distributor shall file a letter of appeal from the decision and request a hearing before the Mayor and Council. Any appeal shall stay enforcement of this chapter except in the event that the Borough determines that an emergency situation exists.
D. 
If the distributor fails to appeal from the revocation of a permit or a decision not to grant a permit, and does not remove or have removed the newsrack in question within 20 days from receipt of a revocation notice or a notice that a permit has not been granted, the newsrack shall be removed by the Borough's Department of Public Works and stored at the Department of Public Works yard. The distributor shall be notified of the location of the removed newsrack and the hours when it may be obtained. Neither the Department of Public Works, the Borough, nor any agent, representative or employee of the Borough shall be liable for any damage to the newsrack, to any material contained therein, or for any lost moneys or sales caused by the removal, transportation or storage of the newsrack. A charge of $30 shall be levied by the Borough if the Department of Public Works removes the newsrack in accordance with this section. If a distributor is unsuccessful on appeal, the distributor shall have 20 days from notification on the appeal within which to remove the newsrack. If the newsrack is not removed within 20 days, the Department of Public Works shall remove it as set forth in this section. Failure on the part of the distributor to recover the removed newsrack within 30 days of its removal by or on behalf of the Department of Public Works shall entitle the Borough to sell same as abandoned property.