[Adopted 12-21-1967 by L.L. No. 2-1967]
A.
This article is enacted for the purpose of establishing
appropriate safeguards to ensure the fact that water supply and distribution
systems, other than such facilities provided by public authorities, hereafter
established, constructed, installed, extended, enlarged and acquired within
the territorial limits of the Town of Wappinger, outside the Village of Wappingers
Falls, shall be established, constructed, installed, extended, enlarged, acquired,
operated and maintained in such a manner as to secure for the residents and
inhabitants thereof who shall be served by such systems a reliable, continuous
and adequate supply of pure, potable and wholesome water at reasonable rates.
In addition, it is intended hereby to afford such residents and inhabitants
an adequate supply of water for fire protection purposes, whenever and wherever
feasible.
B.
It is the intention of the Town Board by this article
to protect, promote and improve the health, welfare, well-being and safety
of the residents and inhabitants of the Town of Wappinger.
A.
BUILDINGS
DISTRIBUTION SYSTEM
DWELLING
DWELLING UNIT
ENGINEER
FRANCHISE
OPERATOR
OWNER
PERSON
PUBLIC AUTHORITY
STREET
SUPERINTENDENT OF HIGHWAYS
TOWN
TOWN BOARD
WATER SUPPLY
WATERWORKS CORPORATION
Definitions. The following definitions shall apply in
the interpretation and enforcement of this article:
Structures, dwellings, houses, apartment houses, house trailers,
mobile homes, schools, stores, factories, offices, hotels, motels, hospitals,
churches, institutions, inns and restaurants which are and/or which may be
from time to time inhabited and/or occupied by humans.
All pipes, equipment, mains, laterals, storage tanks, pumping facilities,
chlorinators, purifiers, pressure tanks and chambers, and the connections
and appurtenances thereto, which are and/or may be used to collect, store,
convey and provide water for domestic use to persons who shall reside in and/or
from time to time be present in the Town of Wappinger.
Any building which is wholly or partly used or intended to be used
for living or sleeping by human occupants.
Any room or group of rooms located within a dwelling and forming
a single habitable unit with facilities which are used or intended to be used
for living or sleeping by human occupants.
The Town Engineer of the Town of Wappinger and/or any and all persons
and entities providing engineering services to the municipality.
An exclusive right, permit, consent or license to supply water in
the Town of Wappinger or any part or portion of the area thereof.
Any person who has charge, care or control of a water supply and
distribution system.
Any person who, alone or jointly or severally with others, shall
have legal or equitable title to a water supply and distribution system, with
or without accompanying actual possession thereof.
An individual, partnership, joint venture, company, society, association,
joint-stock company, corporation, trust, estate, receiver, trustee, assignee,
mortgagee, creditor, lienor, referee or entity, or any combination of the
foregoing, or any party acting in a representative or fiduciary capacity whether
appointed by a court or otherwise.
The United States of America, the State of New York and any municipal
and/or governmental subdivisions thereof, including any public improvement
districts thereof.
Any public way, highway, right-of-way, road or thoroughfare used
or intended to be used for travel and passage by the residents and inhabitants
of the Town of Wappinger and others, whether the area of the same shall have
been acquired by purchase, dedication, gift, devise, prescription, usage or
by eminent domain.
The Town Superintendent of Highways of the Town of Wappinger or his
authorized representative.
The Town of Wappinger, Dutchess County, New York.
The local governing and legislative body of the Town of Wappinger.
Any well, lake, watercourse, pond, stream, reservoir and/or spring
which shall serve as and be used as a source of water for consumption by humans.
A corporation organized to supply water by mains or pipes to any
of the cities, towns, villages or counties in the State of New York and the
inhabitants thereof.
B.
Word usage. The word "shall," as used in the text of
this article, is to be construed in the mandatory sense and the word "may"
in the permissive sense.
Except as hereinafter provided, it shall hereafter be unlawful for any
person, owner or operator, other than a public authority, to establish, construct,
install, extend, enlarge, acquire, operate and maintain any water supply and
distribution system within the territorial limits of the Town of Wappinger,
outside the Village of Wappingers Falls, without the prior written consent
of a majority of the members of the Town Board. The prohibition herein shall
preclude any person, owner or operator from establishing, extending, enlarging
and acquiring any water supply and distribution system by means of a merger,
consolidation, joint venture or any other method of combining existing operations,
facilities, ownerships and entities without first obtaining the written consent
required by this article.
An application for consent to establish, construct, install, extend,
enlarge and acquire a water supply and distribution system in the Town shall
be made, in writing, to the Town Board. Such application shall be filed in
triplicate with the Town Clerk and shall be accompanied by detailed plans
and specifications for the proposed project as well as a map designating the
area to be served and showing the topography thereof and the location of streets
and roads therein.
The Town Clerk shall retain one copy of the application and supporting
data in her office. One copy thereof shall be forwarded by the Town Clerk
to the Town Board for consideration and eventual action. The Town Clerk shall
forward the third copy to the Engineer for examination and investigation within
five days after receipt thereof.
Applicants shall furnish such additional and supplemental information
as may be requested by the Engineer to enable him to determine the merits
of the application.
A.
Upon receipt of the application and supporting data and
such supplemental material as may be requested, the Engineer shall examine
and investigate the proposal, giving particular attention to conditions in
the field.
B.
The Engineer shall ascertain that the design of the proposed
supply and system meets such minimum standards and requirements for water
supply and distribution systems as shall be promulgated from time to time
by the New York State Department of Health, the New York State Department
of Conservation, the New York State Water Resources Commission, the Dutchess
County Health Department, the County of Dutchess and its agencies and boards
and other related higher governmental units and agencies. All state statutes,
rules, regulations and codes shall be complied with.
C.
The Engineer shall consult with the Town and County Superintendents
of Highways with regard to aspects of proposals which involve the use of streets
and roads which may be under the jurisdiction of either of such officials.
The requirements and recommendations of either of such officials shall be
incorporated in the Engineer's report to the Town Board on any application.
A.
The Engineer shall conduct his investigation of any application
and shall report the results thereof to the Town Board within 45 days from
the date that such application is referred to him. His report shall be made,
in writing, and shall include a recommendation to the Town Board that the
application be either granted or denied by that body. The basis for such recommendation
shall be detailed in the report.
B.
In rendering a report, the Engineer may recommend additional
requirements, standards and design criteria, including recommendations and
requirements of the New York Board of Fire Underwriters Rating Organization,
relating to size and pressure capacity of pipes and appurtenant equipment,
which may be in the public interest and which shall be observed and complied
with by the applicant in the event that consent is obtained from the Town
Board, provided that such recommendations are made a condition of such consent.
A.
Within 30 days from the date that it receives the Engineer's report, or, if such Engineer's report is not received within the time prescribed in § 234-8 above, then within 80 days from the date that such application is filed with the Town Clerk, the Town Board shall hold a public hearing on each application upon at least five days' notice, to be published once in the official newspaper of the Town and, at the option of the Town Board, in any other newspaper in general circulation in the town.
B.
No public hearing shall be held unless a majority of
the full membership of the Town Board is present and in attendance. If less
than the required number of the Town Board members is present and in attendance,
any of the members of the Board who shall be present shall have the authority
and the obligation to adjourn the hearing to a time, date and place convenient
to the Town Board, provided that the thirty-day limitation of time prescribed
in this section is not exceeded without the written consent of the applicant.
C.
When a public hearing is convened with the requisite
number of Town Board members present, interested parties shall be heard in
support of or in opposition to the application which is the subject thereof.
The Engineer's report and recommendations shall be made known, and the
Engineer and any other Town officials and/or representatives may be called
upon by the Town Board for information and opinion relevant and material to
the application under consideration.
D.
When the Town Board is satisfied that sufficient information
has been offered to enable it to make a decision upon an application, the
hearing shall be closed. Thereafter, and at its earliest convenience, the
Town Board, at a formal Town Board meeting, shall either grant or deny the
application by the vote of a majority of its full membership. A written decision
stating the basis for the granting or denial of the application shall be made
by a majority of the Town Board members and filed with the minutes of the
meeting. Authority for final action upon applications made pursuant to this
article shall be vested in the Town Board, and the function of the Engineer
with respect to such applications shall be advisory.
E.
Notwithstanding anything herein contained to the contrary,
no application shall be granted unless the Town Board shall find that the
proposed project complies with the standards, requirements, codes, rules and
regulations of the governmental agencies hereinbefore referred to, as well
as to any standards, conditions, requirements, rules and regulations of the
town.
F.
Any person aggrieved by any action of the Town Board
concerning such an application may, in a proper case, seek relief under the
provisions of Article 78 of the Civil Practice Law and Rules.
All successful applicants shall comply with the following conditions
before proceeding with proposed projects covered by applications:
A.
Incorporate as a waterworks corporation pursuant to applicable
provisions of the Transportation Corporations Law of the State of New York
or any successor statute then obtaining. In this respect, the granting of
an application under this article shall oblige Town officials to give requisite
consent to such incorporation, provided that all other conditions of this
article are met.
B.
Transfer ownership of any existing water supply and distribution
systems and facilities situate in the town, outside of the Village of Wappingers
Falls, to such corporation and operate the same thereunder.
C.
Post a performance bond to guarantee completion of construction
of the project covered by the application and post an additional bond for
the payment of labor and materials furnished in the course of such construction.
The amount and sufficiency of surety of such bonds shall be satisfactory to
the Town Board, and the form and manner of execution thereof shall meet with
the approval of the Town Counsel.
D.
Guaranty of continuing operation.
(1)
Furnish to the Town Board a reasonable guaranty from
the corporation that said corporation will continue to maintain and operate
the system for a period of at least five years.
(2)
As part of the guaranty, the stock of the corporation
shall be placed in escrow with the Town Clerk, and title thereto shall pass
to the Town in the event of failure to complete and pay for construction of
the facility or in the event of abandonment of the maintenance and/or operation
of the water supply and distribution system by the corporation.
E.
Execute a written agreement, approved as to form and
manner of execution by the Town Counsel, consenting to an arrangement whereby,
in the event of abandonment and discontinuance of the maintenance and operation
of the water supply and distribution system, the Town shall have the right
to continue the maintenance and operation thereof at rates the Town Board
determines to be reasonable, with such rates to be charged to and collected
by the Town from the users, until such time as another corporation or agency
may undertake to maintain and operate the facilities or until such time as
the water supply and distribution system is included in a public water district
which shall maintain and operate the same.
F.
Enter into an agreement, in writing, approved as to form
and manner of execution by the Town Counsel, granting to the Town an option
to purchase the water supply and distribution system and all components thereof
constructed and/or acquired prior to the application by paying an amount not
to exceed the cost thereof and the cost of all additions and improvements,
as certified in the manner hereinafter set forth, less depreciation, on a
schedule initially agreed upon but not to exceed 30 years, together with land,
including easements. A memorandum of such option agreement, omitting the monetary
consideration agreed upon, approved as to form, content and manner of execution
by the Town Counsel, shall be executed by the parties simultaneously with
execution of the option agreement. Such memorandum shall be in suitable form
for recording.
Before commencing construction, installation, extension or enlargement
of any water supply and distribution system, a professional engineer, duly
licensed to practice in the State of New York, nominated by the applicant
and approved by the Town Board, shall be retained by the applicant and the
Town Board to undertake, perform and render, at the expense of the applicant,
the following services to the Town Board and the applicant:
A.
Examine the plans and specifications for the project
as well as all conditions and requirements imposed by the Town Board and the
Engineer to the Town and forward written acknowledgment of such examination
to the Town Board.
B.
Make inspections of the project at reasonable intervals
during construction; make written reports of the progress thereof to the Town
Board; and make written report to the Town at completion of construction.
Copies of such reports shall also be furnished to the applicant.
C.
At completion of construction, make written report to
the Town Board and the applicant on construction costs and land costs involved
in the completed project.
No person shall acquire an exclusive franchise or license to supply
water to the Town or any part or section thereof as a result of obtaining
the consent required by this article; nor shall the obtaining of such consent
preclude other persons, with the consent of the Town Board obtained pursuant
to the provisions of this article, or public authorities from supplying water
from other sources to the Town or any part, section or water service area
thereof, including any part, section or area where service is permitted under
a previously issued consent.
The Engineer and other authorized representatives of the Town shall
be permitted to enter upon all water supply and distribution systems and facilities
in the Town at any time for the purpose of examining, inspecting and observing
the same and the operation and condition thereof and also for the purpose
of sampling and testing the water supplied therefrom.
A.
The provisions of this article shall not operate to prevent
the use of individual wells to supply water for domestic use to not more than
two one-family dwellings nor to any multiple dwelling containing not more
than four dwelling units.
B.
Further, persons shall have the right to make written
application to the Town Board to exempt any water supply and distribution
system designed and intended to serve any residential or nonresidential structure
or complex of structures occupied or used by humans from the operation of
this article. Upon a showing of proof adduced at a public hearing that the
use of such a system for such purpose will not violate the spirit and intent
of this article, and upon a finding that such use will not be adverse to the
public interest, the Town Board may grant such application subject to such
conditions as it may deem appropriate to impose.
[Amended 2-9-1981 by L.L. No. 2-1981; 3-22-2004
by L.L. No. 5-2004]
Any person found to be violating any provisions of this article or failing to observe the provisions thereof may be prosecuted for such conduct and, upon such conviction, shall be guilty of a violation as defined by Penal Law § 55.10, Subdivision 3. Any person so convicted may be fined in the amount set forth in Chapter 122, Article V, § 122-20FF(1) of the Code for each violation or be subject to imprisonment for a term not to exceed 15 days, or both. Each day in which any violation of this article shall continue shall be deemed a separate violation. In addition, or in the alternative to other remedies, including the foregoing, the Town Board or any Town officer designated by the Town Board may institute any appropriate action or proceeding to restrain, correct or abate any violation of this article or to compel compliance with said article.
