[Adopted 2-20-2013 by L.L. No. 3-2013]
A.
The purpose of this article is to maintain the safety, health and
general welfare of Town residents by regulating high-impact activities
that have the potential to adversely affect roads and public and nonpublic
property. Well-maintained roads are important to the economic well-being
of the Town, and while certain high-impact construction and maintenance
operations, and high-impact commercial endeavors, can be economically
beneficial, it is known that heavier trucks and equipment and heavy
loads carried by such vehicles deteriorate the pavement structure
at an accelerated rate. Such principles are embodied in documents
published by the American Association of State Highways and Transportation
Officials ("AASHTO"), which are widely accepted and used throughout
the United States. As such, it is the intent of this article to protect
Town roads from excess damages caused by frequent passes of heavy
trucks.
B.
Accordingly, the Town Board has determined that certain high-intensity
traffic associated with large construction projects can damage and
significantly reduce the life of Town highways, which must then be
repaired at the expense of the Town's taxpayers. The Town Board
has further determined that such damage can be reliably measured using
recognized engineering standards published by AASHTO and others. In
addition, the Town Board has determined that the strength and capacity
of Town highways may in some cases be inadequate to meet the demands
of traffic for large construction and high-impact projects and that
upgrades to Town highways may be necessary to accommodate such traffic.
The Town Board finds that it is in the best interest of the citizens
and taxpayers of the Town to have the developers of such large construction
and high-impact projects bear responsibility for making any necessary
upgrades to Town highways and repairing any damage caused to Town
highways at the expense of such developers. The purpose of this article
is to establish a mechanism by which the developers of large construction
and high-impact projects that will generate traffic likely to require
upgrades or cause damage to Town highways shall insure that such upgrades
are made and such damage is repaired at the developer's own expense.
This article is enacted pursuant to the New York State Constitution,
Article 9, § 2(c)(6); New York Vehicle and Traffic Law § 1660;
New York Municipal Home Rule Law § 10; New York Statute
of Local Governments § 10; New York Highway Law §§ 320
and 326; and New York Town Law § 130.
As used in this article, the following terms shall have the
meanings set forth herein:
Recurring ambient traffic presented on an annualized basis.
It includes typical daily activities on Town highways (hereinafter
defined), such as passenger vehicles, school buses, delivery vehicles,
garbage trucks, and normal commuter and business traffic. Baseline
traffic is the cause of normal wear and tear for which a Town highway
is constructed. Baseline traffic does not include unusual heavy traffic
occurring on a temporary basis for such things as construction activity
(hereinafter defined).
Traffic intended to travel upon or traveling upon Town highways
to or from the site of construction activity, which is not baseline
traffic and which will exceed the predetermined normal wear and tear
thresholds of one or more Town highways or segments of Town highways.
Any activity occurring or to occur in or outside of the Town
that results in land disturbance or the improvement of a parcel. Evidence
of construction activity includes, without limitation, those activities
which are also being undertaken subject to:
Federal permits and approvals, including, without limitation,
approvals subject to the National Environmental Policy Act and activities
subject to the following nationwide permits, as amended and issued
by the United States Army Corps of Engineers: Permit 8 (Oil and Gas
Structures), Permit 12 (Utility Line Activities), Permit 13 (Bank
Stabilization), Permit 16 (Return Water from Upland Contained Disposal
Areas), Permit 17 (Hydropower Projects), Permit 21 (Surface Coal Mining
Operations), Permit 29 (Residential Developments), Permit 33 (Temporary
Construction, Access, and Dewatering), Permit 38 (Cleanup of Hazardous
and Toxic Waste), Permit 39 (Commercial and Institutional Developments),
and Permit 44 (Mining Activities); or
State permits and approvals, including, without limitation:
highway work permits; waste transporter permits; SPDES general permit
for stormwater discharges from construction activity and other SPDES
discharge permits; oil, natural gas, and solution mining permits and
other mining permits; overweight/oversize vehicle permits; authority
to transport property (except household goods); divisible load overweight
permits; special hauling trip and annual oversize/overweight loads
permits; LCV/tandem trailer permits; and special hauling permits;
or
Local permits and approvals, if applicable, including, without
limitation: aquifer protection permits, sludge disposal permits, mining
permits, gravel mining permits, permits for well in aquifer area,
overweight/oversize vehicle permits, special use permits, zoning changes,
and site plan approval.
Any person, persons, corporation, partnership, limited liability
company, or other entity.
Road Protection Program Manual, Version 2.0, dated February
2012, prepared by Delta Engineers, Architects & Land Surveyors,
P.C., a copy of which is on file and available at the Town's
offices located at 104 Main Street, Hortonville, New York 12745.
Road Protection Program Technical Manual, Version 2.0, dated
February 2012, prepared by Delta Engineers, Architects & Land
Surveyors, P.C., a copy of which is on file and available at the Town's
offices located at 104 Main Street, Hortonville, New York 12745.
Those roads and highways and related appurtenances of the
Town which are owned or maintained by the Town or otherwise exist
as Town highways by dedication or use, including without limitation
roadways, shoulders, guide rails, bridges, tunnels, culverts, sluices,
ditches, swales, sidewalks, or any utilities or improvements therein,
thereon or thereunder.
The Superintendent of Highways or his or her designee.
This article shall apply to any person who, individually or
in concert with another person, intends to undertake construction
activity that will result in concentrated traffic on Town highways.
A.
Any person identified under § 180-18 of this article shall, prior to undertaking such construction activity or allowing, directing or inducing concentrated traffic to travel upon Town highways, submit a haul route application form and project traffic worksheet to the Town Highway Superintendent in accordance with the forms and procedures set forth in the Program Manual.
B.
The Town Highway Superintendent shall review such application and
worksheet in accordance with the Program Manual and the Technical
Manual. Within no more than 30 days after receipt of a complete haul
route application and project traffic worksheet, the Town Highway
Superintendent shall notify the applicant whether the use of Town
highways will result in concentrated traffic.
A.
If the Town Highway Superintendent determines that traffic generated
by an applicant's construction activity will result in concentrated
traffic, the applicant shall be required to comply with the following
provisions:
(1)
The applicant shall be required to set forth a haul route declaration
as set forth in the Program Manual.
(2)
The Town's engineering consultant shall examine each segment
of the proposed haul route in order to:
(a)
Evaluate the Town highways on the proposed haul route for design,
geometric or health and safety deficiencies, as those deficiencies
are defined more fully by the Program Manual; and
(b)
Estimate the costs and procedures necessary to upgrade such
Town highways on the proposed haul route if the Town's engineering
consultant determines that the Town highways on the proposed haul
route must be upgraded to accommodate the applicant's concentrated
traffic; and
(c)
If available, propose an alternate haul route if required due
to design deficiencies or if desired by the applicant to minimize
estimated upgrade or repair costs to the haul route.
(3)
The Town's engineering consultant shall design or approve, in conjunction with the Town Highway Superintendent or the Town Engineer, all structural, geometric and roadbed upgrades to Town highways necessary to accommodate the applicant's concentrated traffic, which upgrades shall be made at the applicant's expense in accordance with the provisions of Subsection A(8) of this section. An applicant that has completed upgrades to Town highways in accordance with this Subsection A(3) will not be responsible for repairing Town highways on the applicant's haul route, provided that the applicant's actual traffic does not exceed the scope, volume, weight or trips reported on the applicant's haul route declaration.
(4)
The Town's engineering consultant shall conduct all pre-use
testing and capacity evaluation of each segment of a haul route that
is a Town highway in accordance with the methods set forth in the
Program Manual and the Technical Manual.
(5)
If no upgrades have been required and/or made to the Town highways on the proposed haul route and the Town's engineering consultant determines that the applicant's concentrated traffic is expected to cause damage to Town highways, the Town's engineering consultant shall provide the Town Highway Superintendent and the applicant with an estimate of the cost to repair such expected damage. Prior to the use of any haul route segment on Town highways, the applicant shall agree to make all such repairs at the applicant's expense in accordance with the provisions of Subsection A(8) of this section (including the posting of appropriate security). If any haul route segment is on a Town highway that is unpaved or prone to seasonal deterioration, or likely to suffer sudden failure that would impair the safe travel and usage of such Town highway, the Town Highway Superintendent may require, upon the recommendation of the Town's engineering consultant, that such Town highways be subject to weekly monitoring and that any damage be repaired within five days at the applicant's expense in accordance with the provisions of Subsection A(8) of this section.
(6)
The Town's engineering consultant shall conduct all post-use testing and damage assessment of each segment of a haul route that is a Town highway in accordance with the methods set forth in the Program Manual and the Technical Manual. The Town's engineering consultant shall provide an estimate of the cost of repairing any actual damage to Town highways caused by the applicant's concentrated traffic. Upon receiving the estimate, the applicant shall make all such repairs at the applicant's expense in accordance with the provisions of Subsection A(8) of this section. Upon the satisfactory completion of the repairs and the approval of such repairs by the Town Highway Superintendent, any unused security shall be returned to the applicant or otherwise released as herein required.
(7)
Any security for performance and/or payment required under this article
shall be in an amount set by the Town Board upon the recommendation
of the Town's engineering consultant. Any such security shall
be provided pursuant to a written security agreement with the Town,
approved by the Town Board and also approved by the Town Attorney
as to form, sufficiency and manner of execution. At the Town Board's
discretion, the security may be in the form of: (i) a performance
or payment bond, as applicable; (ii) the deposit of funds with the
Town; (iii) an irrevocable letter of credit from a bank authorized
to do business in New York State; or (iv) other financial guarantee
acceptable to the Town Board. If the Town's right to collect
against any security is contested and the Town prevails, then the
applicant shall pay the Town an amount sufficient to reimburse the
Town for its reasonable costs and expenses in obtaining a judgment,
including attorneys' fees.
(8)
Requirements for upgrade or repair work.
(a)
An applicant shall be permitted to undertake upgrade or repair
work only if the Town Highway Superintendent determines that the applicant,
or a contractor hired by the applicant, has the capability and experience
to make the necessary repairs or upgrades. All work shall be performed
pursuant to an agreement in writing between the applicant and the
Town, which shall require, among other things, the applicant or its
contractor to:
(b)
All repairs or upgrades to Town highways shall be made in accordance with the specifications established by the Town Highway Superintendent and must be approved by the Town Highway Superintendent. In addition, the applicant shall comply with all applicable laws and regulations, including without limitation the prevailing wage requirements of New York Labor Law. The applicant or its contractor shall obtain all governmental permits and approvals and obtain any private land rights that are necessary to make any required repairs or upgrades to Town highways. If the applicant does not wish to make such repairs or upgrades to Town highways, or is determined by the Town Highway Superintendent not to have the necessary capability to make such repairs or upgrades, then the applicant shall agree in writing to pay the Town for the cost of such repairs or upgrades to Town highways and post security in accordance with the requirements of Subsection A(7) of this section.
(9)
To the extent permitted by law, the applicant shall defend, indemnify
and hold the Town harmless from all losses resulting from injury or
death of persons or damage to property arising from the applicant's
upgrades and repairs to Town highways.
(10)
If an applicant disagrees with any decision by the Town Board,
the Town Highway Superintendent, or the Town's engineering consultant
in the administration of this article, including without limitation
the extent or method of a proposed highway upgrade or repair; any
cost imposed upon the applicant; or an estimate of the amount of security
to be held by the Town, and the applicant and the Town are unable
to resolve their dispute through negotiation, the applicant may make
a written request to the Town Board appealing such decision and requesting
a public hearing, at which the applicant shall have the right to appear
and be heard. The Town Board shall hold such public hearing not fewer
than five days nor more than 30 days after such request. The Town
Board may reverse, modify or affirm, wholly or partly, the decision
appealed from and shall make such decision as in its opinion ought
to have been made in the matter and, to that end, shall have all the
powers of the board, official or consultant from whose decision the
appeal is taken. The Town Board shall issue a determination on the
applicant's request within 15 days of the public hearing. In
view of the Town's obligation to provide its residents with safe
and properly maintained highways, the Town Board's determination
shall be final.
B.
In order to comply with the requirements of this section, an applicant
shall have the option of entering into a road use agreement with the
Town. A sample form of road use agreement meeting all the requirements
set forth herein is attached to and made a part of this article as
Appendix I.[1] The applicant may ask to modify such form or propose a
different form of road use agreement, but any such agreement must
be in a form approved by the Town Board and also approved by the Town
Attorney as to form, sufficiency, and manner of execution.
[1]
Editor's Note: A sample form of road use agreement is attached
to this chapter.
A.
The applicant shall pay the Town for all of the Town's reasonable
and necessary expenses in implementing the requirements of this article,
including without limitation the fees of the Town's engineering
consultant in conducting all activities required hereunder and under
the Program Manual and Technical Manual and all other legal and consultant
expenses.
B.
Simultaneous with the filing of a haul route declaration, an applicant
shall deposit with the Town Supervisor an initial deposit of monies,
as determined by a schedule of deposits established from time to time
by resolution of the Town Board, which monies shall be used to pay
the expenses incurred by the Town in implementing the requirements
of this article. Any schedule of deposits established by the Town
Board shall remain in effect and apply to all applicants until amended
or revised by subsequent resolution of the Town Board.
C.
Upon receipt of any deposit, the Town Supervisor shall cause the
monies to be placed in a separate non-interest-bearing account in
the name of the Town and shall keep a separate record of all such
monies so deposited in the name of the applicant for whom such monies
were deposited.
D.
Upon receipt and approval by the Town Board of itemized invoices
from the Town's engineering consultant or other consultant or
attorney for services rendered and/or costs incurred on behalf of
the Town pertaining to the applicant's activities regulated by
this article, the Town Supervisor shall cause such invoices to be
paid out of the monies so deposited and shall debit the separate record
of such account accordingly. When submitting invoices to the Town
Board, the consultant or attorney shall simultaneously furnish copies
of such invoices to the applicant.
E.
The Town Board shall review and audit all such invoices and shall
approve payment of only such expenses as are reasonable in amount
and necessarily incurred by the Town in connection with any of the
following activities: the evaluation of haul routes; pre-use testing
and capacity evaluation of haul routes; design and approval of all
structural, geometric and roadbed upgrades to Town highways; post-use
testing and damage assessment of haul routes; the preparation and
review of cost estimates for upgrades and repairs; the evaluation
of repairs and upgrades made to Town highways and the maintenance
and removal of same; the preparation of recommendations for the amount
of security to be posted by an applicant; the preparation and negotiation
of road use agreements, security agreements, or other agreements between
the Town and an applicant; the enforcement of any such agreement;
the collection of or enforcement against any security posted by an
applicant; and all other activities performed by consultants and attorneys
on behalf of the Town in connection with the application of this article
to a particular applicant. For purposes of the foregoing, an expense
is reasonable in amount if it bears a reasonable relationship to the
average charge by consultants and attorneys to the Town for performing
similar services, and in this regard, the Town Board may take into
consideration the length of the haul routes to be evaluated, the condition
of the Town highways under consideration, the extent of the upgrades
and repairs to be made to Town highways, the complexity of the issues
addressed by the consultant or attorney, the difficulty of negotiations
with an applicant, and any special considerations that the Town Board
may deem relevant. An expense is necessarily incurred if it was charged
by a consultant or attorney in performing services or providing material
in order to promote, protect and maintain the safety, health and general
welfare of the public; protect, preserve and maintain Town highways;
protect the legal interest of the Town including the avoidance of
claims and liability; and promote, protect or preserve such other
interests as the Town Board may deem relevant.
F.
If at any time during the Town's oversight of an applicant's
activities regulated by this article there shall be insufficient monies
on deposit with the Town to pay approved invoices, or if it shall
reasonably appear to the Town Supervisor that such monies will be
insufficient to pay anticipated invoices, then the Town Supervisor
shall cause the applicant to submit additional sums as the Supervisor
deems necessary or advisable in order to meet such expenses.
G.
In the event that an applicant fails to deposit such monies or additional monies as reasonably requested, the Town Supervisor shall notify, as appropriate, the Town Board and/or Town Highway Superintendent of such failure, and any review or approval under this article may be withheld until such monies are deposited. The failure to deposit such monies within 30 days after receipt of notice by the Town Supervisor shall constitute a violation of this article enforceable in accordance with § 180-27 of this article.
H.
After the cessation of all of applicant's activities regulated
by this article, and after payment of all approved invoices submitted
in connection with such activities, any sums remaining on account
to the credit of such applicant shall be returned to such applicant
together with a statement of the invoices so paid.
From time to time updates to the Program Manual and the Technical
Manual may be published. The Town Board may from time to time update
or replace any manual referenced in this article by adopting a local
law referencing such new or updated manual, and thereafter, the new
or updated manual shall be binding on all persons subject to this
article.
The Town Board may establish a schedule of fees relating to
applications, approvals, inspections and enforcement under this article.
A.
No approval issued under this article, nor any rights granted, nor
obligations imposed hereunder or pursuant to any road use agreement
may be assigned, conveyed, pledged or transferred without the express
prior written consent of the Town Highway Superintendent.
B.
Notwithstanding any approval granted under this article or any rights
granted under any road use agreement, all Town highways shall be kept
passable at all times for all motor vehicles, including emergency
and public safety vehicles. If any concentrated Traffic causes damage
to any Town highway such that, in the opinion of the Town Highway
Superintendent, such Town highway is impassable or unsafe for use
by the general public, then and in any such event, and regardless
of any approval, authorization or agreement issued or to the contrary,
the Town Highway Superintendent may close such Town highway and/or
require that the same be immediately repaired by the applicant or
other person whose use or abuse thereof caused or contributed to the
damages or events as gave rise, wholly or partially, to such Town
Highway Superintendent's determination as to closure, damage,
safety or need for repair.
C.
In granting any approval under this article or in entering into any
road use agreement, the Highway Superintendent or Town Board, as the
case may be, may impose conditions relating to seasonal restrictions
or the documentation of road conditions or conditions deemed reasonably
necessary to promote, protect and maintain the safety, health and
general welfare of the public.
D.
In the event that any applicant makes any upgrades or improvements to any Town highway, the Town reserves the right to require that such improvements be removed at the conclusion of the relevant construction activity and that the Town highway be restored, to the extent feasible, to its original dimensions and specifications. All removal and restoration shall be performed in accordance with § 180-20A(8) of this article.
The Town Board may by resolution except an applicant from the
requirements of this article, provided that the Town Board makes a
finding that the Town highways to be used by the applicant will be
adequately protected and any damage to Town highways will be adequately
repaired by virtue of the requirements or conditions imposed upon
the applicant in connection with any federal, state or local permit
or approval, including without limitation mitigation measures imposed
under the National Environmental Policy Act or the State Environmental
Quality Review Act.
A.
Before issuing any approval required under this article or before
approving any road use agreement, the Town shall comply with the applicable
provisions of the State Environmental Quality Review Act, Article
8 of the New York State Environmental Conservation Law, and its implementing
regulations set forth in 6 NYCRR Part 617 (collectively referred to
as "SEQRA").
B.
When required by the Town, an applicant must complete and submit
and an environmental assessment form ("EAF") to the Town.
C.
For purposes of this article or for any road use agreement, the following
actions have been determined not to have a significant impact on the
environment and do not require any environmental review under SEQRA
as a Type II action:
(1)
Maintenance or repair of an existing Town highway involving no substantial
changes to the Town highway;
(2)
Replacement, rehabilitation or reconstruction of a Town highway,
in kind, on the same site, unless such action meets or exceeds any
of the thresholds for a Type 1 action set forth in 6 NYCRR 617.4;
(3)
Repaving of an existing Town highway not involving the addition of
new travel lanes;
(4)
Openings in the pavement or right-of-way of a Town highway for the
purpose of repair or maintenance of existing utility facilities;
(5)
Installation of traffic control devices on existing Town highways;
and
(6)
Any other actions listed as Type II actions in SEQRA.
D.
All other actions require compliance with SEQRA.
A.
The Town Highway Superintendent and Town police officers are hereby
authorized to issue and serve appearance tickets with respect to any
violation of this article.
B.
All provisions of New York law generally applicable to misdemeanors
shall apply to any criminal proceeding brought under this article,
and any violation of this article shall be deemed and classified as
an unclassified misdemeanor. Each week that a violation continues
uncorrected or is resumed shall constitute a separate additional violation.
A conviction of a first violation is punishable by a fine of not more
than $5,000 or imprisonment not to exceed three months, or both. A
conviction of a second violation occurring within a period of five
years is punishable by a fine of not less than $5,000 nor more than
$10,000 or imprisonment not to exceed six months, or both. A conviction
of a third or subsequent violation occurring within a period of five
years is punishable by a fine of not less than $10,000 nor more than
$25,000 or imprisonment not to exceed nine months, or both.
C.
In lieu of or in addition to any fine or imprisonment, or both, imposed
for a conviction of a violation of this article, each such violation
may be subject to a civil penalty not to exceed $10,000 to be recovered
in an action or proceeding in a court of competent jurisdiction. Each
week that a violation continues uncorrected or is resumed shall constitute
a separate additional violation.
D.
In addition to the foregoing punishments and penalties, the Town
Attorney may, at the request of the Town Board, maintain an action
or proceeding in the name of the Town in a court of competent jurisdiction
to compel compliance with or restrain by injunction any violation
of this article.
E.
Stop-work order.
(1)
In addition to any penalties or other remedies provided for or allowed
herein, the Town Highway Superintendent shall have the right and authority
to issue a stop-work order in order to halt any use of or work on
one or more Town highways that is determined by the Town Highway Superintendent
to:
(a)
Pose an unreasonable risk to the safety, health or general welfare
of the public, without regard to whether such use of or work on Town
highways has been authorized pursuant to this article or by a road
use agreement; or
(b)
Pose a risk of imminent harm to Town highways, without regard
to whether such use of or work on Town Highways has been authorized
pursuant to this article or by a road use agreement; or
(c)
Be contrary to any applicable provision of this article.
(2)
All stop-work orders shall be in writing, be dated and signed by
the Town Highway Superintendent, state the reason or reasons for issuance,
state with specificity the particular use of and/or work on Town highways
that must cease and the particular Town highways for which the stop-work
order is effective and, where applicable, state the conditions which
must be satisfied before the use of or work on such Town highways
shall be permitted to resume.
(3)
The Town Highway Superintendent shall cause the stop-work order,
or a copy thereof, to be served personally or by certified mail on
the following persons, where applicable:
(a)
The person who has submitted a haul route declaration to the
Town and whose use of or work on Town highways is the subject of the
stop-work order; and
(b)
The Person who is a party to a road use agreement with the Town
and whose use of or work on Town Highways is the subject of the stop-work
order; and
(c)
Any identifiable contractor, subcontractor, construction superintendent,
hauler or any of their agents, or any other person taking part or
assisting in the use of or work on Town highways that is the subject
of the stop-work order.
(4)
Upon the issuance of a stop-work order, all persons performing, taking
part or assisting in the use of or work on Town highways that is the
subject of the stop-work order shall immediately cease all such use
of or work on such Town highways. The failure to comply with the terms
and conditions of a stop-work order issued hereunder shall constitute
a violation of this article.
(5)
A stop-work order may be rescinded only by the Town Highway Superintendent
upon receipt of evidence that the conditions or actions that led to
the issuance of the stop-work order have been abated or adequately
addressed.
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Notwithstanding the foregoing, the failure to serve any person
mentioned above shall not affect the validity or effectiveness of
the stop-work order.
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F.
The remedies set forth in this § 180-27 shall not be the exclusive remedies available to the Town, and the pursuit of any particular remedy shall be in addition to, and not in substitution or limitation of, the right and authority to pursue any other remedy or other penalty. In addition to the remedies prescribed herein, if any use of Town highways is made or threatened in violation of the New York Highway Law, the New York Vehicle and Traffic Law, or other local law or ordinance of the Town, the Town Highway Superintendent may, in the name of and on behalf of the Town, seek all remedies allowed pursuant to such laws or ordinances.
The time periods prescribed herein in which the Town Board,
the Town Highway Superintendent, other Town official, or the Town's
engineering consultant shall act are not of the essence and shall
not be construed as imposing a limitation on the time to act.
In the event of any inconsistency between the provisions of
this article and the provisions of the Program Manual and the Technical
Manual, the provisions of this article shall control. In the event
any ordinances, local laws, and parts thereof are inconsistent with
this article, the provisions of this article shall govern and control.
