[Adopted 4-29-1965]
The Town Board of the Town of Wappinger, New
York, finds a fact that, in order to properly and adequately protect
the public safety, health, convenience and general welfare of the
inhabitants of the Town of Wappinger and members of the general public,
it is necessary to regulate, restrict and control excavation in and
under the deposit of material on and about the highways, as defined
herein, in the Town of Wappinger by persons other than officers, employees
and persons performing contractual work for the Town of Wappinger.
For the purpose of this article only, certain
words and terms used herein are defined as follows:
All or any portion of any highway, street, sidewalk, public
place or right-of-way owned and controlled by the Town of Wappinger,
exclusive, however, of that portion of any highway, street, sidewalk,
public place or right-of-way situate within the territorial limits
of the Village of Wappingers Falls, and exclusive of that portion
of any highway, street, sidewalk, public place or right-of-way owned
and/or controlled by the County of Dutchess or the State of New York.
Any natural person, partnership, association or corporation.
The Town Highway Superintendent of the Town of Wappinger,
New York.
A.
No person shall remove from or deposit on any highway
any material or intentionally injure any highway or cause to be dug
or make any hole or excavation in or under a highway or cause to be
erected thereon or therein any object without first having obtained
a written permit from the Superintendent so to do.
B.
This section shall be applicable to and prohibit individuals
from depositing materials on public highways as a result of improvement
and grading of their property.
Any person desiring a permit shall make application
to the Superintendent, upon forms to be provided by him, which application
shall set forth the following:
A.
The name and address of the applicant.
B.
A reasonably adequate description of the proposed
work and the reason therefor, including a description of the location
of the proposed work.
C.
A statement as to the time when such work will be
commenced and an estimate of the time when such work shall be fully
completed and the highway restored to its previous condition as nearly
as may be feasible.
D.
A time schedule showing when various portions of the
work will be done.
E.
A reference to the legal authority of the applicant
to perform the proposed work in the public highway.
F.
An estimate of the cost of the proposed work, including
such detail as may be specified by the Superintendent.
G.
Such other information as the Superintendent shall
deem pertinent to effectuate the purposes of this article.
[Amended 9-13-1999 by L.L. No. 6-1999]
No permit shall be issued until the applicant
shall have filed with the Superintendent evidence that the Town has
been named as a primary insured under an insurance policy extending
bodily injury and property damage coverage to the Town in amounts
of $300,000/$500,000 for bodily injury and $50,000 for property damage
caused by or attributable to the work to be performed by the applicant,
such insurance coverage to be written by an insurance company authorized
to do business in the State of New York.
No permit shall be issued to any applicant until
the applicant has posted with the Superintendent a bond or certified
check in such amount as the Town Superintendent may determine necessary
to cover the probable expense to the Town of replacement by the Town
of any highway to its former condition and to guarantee the performance
by the applicant of any of the conditions contained in the permit
and compliance with this article.
[Amended 3-8-2004 by L.L. No. 4-2004]
The Superintendent, upon a finding by him that the issuance of the permit is authorized by this article and general law, and upon compliance by the applicant with the herein-contained provisions relating to general liability insurance and security deposit, shall issue the permit for the proposed work and may attach such reasonable conditions, including the specification of a completion date, as in his opinion may be necessary to protect the interest of the Town and to guarantee the right of public access through and along said highway during the progress of the work. The fee for the permit shall be the sum as set forth in Chapter 122, Article IV, § 122-16K of the Code, which shall be deposited with the Superintendent upon issuance of the permit.
The Superintendent, upon a finding that the
issuance of a permit was illegal or unauthorized or that the applicant
has failed to comply with any of the terms and conditions of the permit
or of this article, may revoke the permit, and the applicant shall
thereupon, with all reasonable speed, forthwith restore the highway
to its former condition.
The person to whom such permit is issued shall
be responsible for all damages caused to public utilities and shall,
under the supervision of the Superintendent, replace any cracked or
damaged sewer pipe or water main with new pipe and repair or replace
damaged ditches, curbs, sidewalks or other improvements so that they
shall be in the same or better condition after the excavation as before
the excavation.
[Amended 1-28-2013 by L.L. No. 5-2013]
Any such excavation in any highway shall be
restored by the applicant, within the time granted in the permit,
with materials equivalent to those excavated and shall be kept and
maintained level with the unexcavated portion thereof, by the applicant,
for a period of two years from the date of restoration, so that said
excavated portion shall be left in as good, substantial and permanent
condition as before the excavation, and if not so restored and maintained,
the work shall be done by or under the direction of the Superintendent,
and the cost thereof shall be a lawful charge against the person to
whom the permit was issued on the bond or certified check herein provided
for, and it shall be the duty of the Superintendent to sue for and
recover such costs or pay them with all or part of said bond or certified
check.
The applicant, during the course of the work,
shall take every reasonable precaution to properly warn all persons
of any danger, including the placing and maintaining of suitable barricades,
flashing lights and warning devices. The Superintendent may from time
to time direct and specify any devices which the applicant shall install
and maintain.
[Amended 1-28-2013 by L.L. No. 5-2013]
For two years from the date the work is complete,
the applicant shall be responsible for any condition that may develop
due to the applicant’s failure to properly restore the highway.
At any time that the applicant shall neglect
or refuse to perform any duty imposed upon him by this article, the
Superintendent may perform the work or duty at the cost and expense
of the town, and the applicant shall reimburse the Town for the cost
and expense thereby incurred.
Notwithstanding anything to the contrary herein
contained, the provisions of this article shall not apply to:
A.
The erection of posts to hold mailboxes on the grass
adjoining the used or paved portion of any highway, provided that
they are set back at least three feet from the edge of the used or
paved portion thereof.
B.
The planting of shade trees, shrubs and the like in
any grass plot adjoining the paved or used portion of any highway,
provided that they are properly set back from the used or paved portion
thereof so as not to obstruct a corner view or endanger the users
of such highway.
C.
The performance of any public work by employees of
the Town or any district thereof or pursuant to a contract or other
agreement entered into with the Town Board acting as such or on behalf
of any lawfully created district in said town.
D.
The construction of line fences where half thereof
is situated upon the premises of the owner and half thereof upon the
highway, provided that the total width thereof does not exceed six
inches.
A.
If any condition shall arise in a highway posing an immediate and present danger to person and property by reason of any condition which may exist, any public utility corporation authorized to operate within the Town may, without obtaining any permit therefor, take such immediate action and perform such work as may be reasonably necessary to eliminate or minimize the aforesaid danger without applying for or obtaining a permit; provided, however, that written notification shall be given to the Superintendent, as soon as practicable, as to the action being taken by such utility, and further provided that as soon as the emergency shall have ceased, such public utility having performed such emergency work shall, under the supervision of the Superintendent, restore the highway as provided in § 214-18 of this article.
B.
In any public emergency caused by acts of God or the
public enemy, the provisions of this article shall not apply to any
person who in good faith shall take any action reasonably designed
to protect the highway or the general public.
A.
Any person who shall violate any of the provisions of this article or any rule or regulation made pursuant thereto or fail to comply with any condition imposed by the permit or fail to comply with any lawful order of the Superintendent or to discharge any duty imposed by this article shall be guilty of a violation and shall be punished by a fine in the amount set forth in Chapter 122, Article V, § 122-20CC(l) of the Code or imprisonment for not more than 15 days, or both. Each day any such violation shall continue shall constitute a separate and distinct offense.
[Amended 9-13-1999 by L.L. No. 6-1999; 3-22-2004 by L.L. No.
5-2004]
B.
Any person violating this article shall be subject to a civil penalty enforceable and collectible by the Town in the amount set forth in Chapter 122, Article V, § 122-20CC(1) of the Code for each such offense. Such penalty shall be collectible by and in the name of the Town for each day that such violation shall continue.
[Amended 3-22-2004 by L.L. No. 5-2004]
C.
In addition to the above-provided penalties and punishment,
the Town Board may also maintain an action or proceeding in the name
of the town, in a court of competent jurisdiction, to compel compliance
with or to restrain by injunction the violation of this article.
