[HISTORY: Adopted by the Town Board of the Town of New Castle 12-11-2001 by L.L. No. 7-2001. Amendments noted where applicable.]
Streets and sidewalks — See Ch. 111.
Findings. The Town Board of the Town of New Castle hereby finds that:
The uncontrolled placement and lack of maintenance of newsracks in public rights-of-way present an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons performing essential utility, traffic control and emergency services.
Unsightly newsracks and newsracks located so as to obstruct walkways or crosswalks or to endanger persons using public rights-of-way constitute public nuisances.
The existence of these factors constitutes an unreasonable interference with and obstruction of the use of public rights-of-way; a potentially dangerous condition; an offense to the senses; and an obstruction of the free use of property as to interfere with the comfortable enjoyment of life and property by the entire community.
The Town Board recognizes, however, that the use of such rights-of-way is historically associated with the sale and distribution of newspapers and publications and that access to those areas for such purposes should not be absolutely denied. The Town Board further finds that these strong and competing interests require a reasonable accommodation which can be achieved satisfactorily only through the means of this chapter, which is designed to accommodate such interests regulating the place and manner of using such newsracks.
Purpose. The provisions and prohibitions of this chapter have the purpose of securing and promoting the public health, safety and general welfare of persons in the Town in their use of public rights-of-way through the regulation of placement, appearance, number, size and servicing of newsracks on the public rights-of-way so as to:
Provide for pedestrian and driving safety and convenience.
Ensure no unreasonable interference with the flow of pedestrian or vehicular traffic, including ingress to, or egress from, any place of business or from the street to the sidewalk, or access to drop curb cuts.
Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs, hydrants and similar appurtenances.
Reduce visual blight on the public rights-of-way; protect the aesthetics and value of surrounding properties.
Reduce exposure of the Town to personal injury or property damage claims and litigation.
Protect the right to distribute information protected by the United States and New York State Constitutions through use of newsracks.
Preservation of constitutional rights. It is not the intent of this chapter to, in any way, discriminate against, regulate or interfere with the publication, circulation, distribution or dissemination of any printed material that is constitutionally protected.
As used in this chapter, unless the context otherwise clearly indicates, the following terms shall have the meanings indicated:
- One side of the street between two consecutive intersecting streets.
- The person responsible for placing and maintaining a newsrack in a public right-of-way.
- Any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the display, sale or distribution of newspapers, advertising materials or other written materials.
- Any person or persons or entity, including, but not limited to, a corporation, limited-liability company, partnership, unincorporated association or joint venture.
- The area between property lines which may be unimproved or surfaced and which may include public highways, streets, roadways and sidewalks.
- That portion of a street improved, designed or ordinarily used for vehicular travel.
- Any surface provided for the exclusive use of pedestrians.
- All the area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, highways, alleys, sidewalks and unimproved areas.
- TOWN ENGINEER
- - Refers to the Town Engineer of the Town of New Castle or the designee of the Town Engineer.
It shall be unlawful for any person, firm or corporation to install, place, maintain or operate on any public street or sidewalk, or in any other public way or place in the Town, any newsrack, without first having obtained a permit from the Town Engineer specifying the exact location of such newsrack. One permit may be issued to include any number of newsracks, provided that all newsrack locations are indicated on the permit.
Application for such permit shall be made, in writing, to the Town Engineer upon such form as shall be provided by him or her and shall contain the name and address of the applicant, the contact person's name, title, telephone and facsimile number and e-mail address, and the proposed specific location of each newsrack and shall be signed by the applicant.
From the above application information, the Town Engineer shall approve or disapprove the locations in accordance with the standards and criteria set forth in this chapter within 15 days of filing the application for such permit. In any case where the Town Engineer disapproves of a particular location, such disapproval shall be without prejudice to the applicant designating a different location.
The Town Engineer shall grant a permit if the location and installation of the newsrack comply with all of the standards and criteria set forth in this chapter and if all other requirements of this chapter are met.
Permits may be issued for the installation of a newsrack or newsracks without prior inspection of the location, but such newsrack or newsracks and their installation, use or maintenance shall be conditioned upon continued observance of the provisions of this chapter.
Such permits shall be valid for one year and shall be renewable pursuant to the criteria and standards for original applications and upon payment of the permit fee.
Newsrack permits shall not be assignable.
The Town Engineer must be notified in writing of a proposed newsrack replacement with a new or different newsrack or the relocation of a newsrack to a different location, which location shall be specified in such notice. The Town Engineer shall approve or disapprove such replacement or relocation, in accordance with the criteria and standards set forth in this chapter, for a permit within 15 days of receipt of such written notification. If the replacement is approved by the Town Engineer, the existing permit shall be amended to reflect the change approved.
As a condition of approval of any newsrack permit, the distributor shall file a written statement with the Town Engineer, in a form satisfactory to the Town Attorney, by which the owner agrees to indemnify, hold harmless and defend the Town, its officers and employees against any loss, liability or damage, including expenses and costs, for bodily or personal injury and for property damage sustained by any person as a result of the installation, use and/or maintenance of a newsrack within the Town.
As a condition of approval of any newsrack permit, the distributor shall file with the Town Engineer a certificate of insurance from an AM Best A-rated insurance company authorized to conduct business in New York, demonstrating that the distributor has general liability insurance with limits of at least $1 million each occurrence and $2 million general aggregate. The insurance policy must name the Town of New Castle as an additional insured. The insurance shall be maintained during the permit period of any newsrack and provide for not less than 30 days' notice of cancellation to the Town Engineer.
Any newsrack that rests, in whole or in part, on any portion of a public right-of-way or which projects onto, into or over any part of a public right-of-way shall be located in accordance with the following provisions:
No newsrack shall project onto, into or over any part of the roadway of any public street, nor shall it rest, wholly or in part, upon, along or over any portion of the roadway of any public street.
Newsracks may be placed next to each other, provided that no more than three newsracks may be grouped, which group of newsracks shall not extend for a distance of more than eight feet. All newsracks in a group of newsracks shall abut the adjacent newsrack in such group unless safety considerations require otherwise. There shall be a space of not less than three feet between each group of newsracks.
No newsrack shall be placed, installed or maintained:
Within five feet of a marked crosswalk.
Within 10 feet of a street corner without a marked crosswalk.
Within 15 feet of a fire hydrant.
Within five feet of a fire call box or police call box.
Within five feet of a driveway or alley.
In a place that reduces the clear space for the passageway of pedestrians to less than four feet.
On any access ramp for disabled persons.
Where such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including parked or stopped vehicles, or the ingress to or egress from any residence or place of business.
Where such installation, use or maintenance endangers the safety of persons or property.
Within three feet of or on any public area improved with lawn, flowers, shrubs, trees or other landscaping, or within three feet of any display window of any building abutting the sidewalk or parkway or in such a manner as to impede or interfere with the reasonable use of such window for display purposes.
Within 250 feet of any other newsrack on the same side of the street in the same block containing the same issue or edition of the same publication.
Except as provided for in § 87-8 B of this chapter, no more than one newsrack shall be located on any public right-of-way within a space of 100 feet in any direction within the same block of the same street; provided, however, that no more than eight newsracks shall be allowed on any one block except the area adjacent to the Metro North railroad station. In determining which newsracks shall be permitted to be located or to remain if already in place, the Town Engineer shall be guided solely by the following criteria:
First priority shall be daily publications (published five or more days per week).
Second priority shall be publications published two to four days per week.
Third priority shall be publications published one day per week.
No more than one newsrack for the same publication may be placed on any one block.
Any newsrack that, in whole or in part, rests upon, in or over any public sidewalk or parkway shall comply with the following standards:
No newsrack shall exceed five feet in height, 30 inches in width, or two feet in thickness.
Newsracks must be secured in a safe manner. No newsrack, however, shall be chained, bolted or otherwise attached to any municipal fixture, such as a parking meter, stop sign, or other traffic sign or control device, located in the public right-of-way, or to any tree or tree support.
No newsrack shall be used for advertising signs or publicity purposes other than those dealing with the display, sale, purchase or distribution of the newspaper or periodical sold or distributed in the newsrack.
Each coin-operated newsrack shall be equipped with a coin-return mechanism to permit a person using the machine to secure an immediate refund in the event that the person is unable to receive the paid-for publication. The coin-return mechanism shall be maintained in good working order.
Each newsrack shall have affixed to it, in a readily visible place so as to be seen by anyone using the newsrack, the permit number, together with 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, or to secure a refund in the event of a malfunction of the coin-return mechanism or to give any notice provided for in this chapter.
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:
It shall not be permitted to remain empty for a period exceeding 30 consecutive days.
It is reasonably free of dirt and grease.
It is reasonably free of chipped, peeling and cracked paint in the visible painted areas.
It is reasonably free of rust and corrosion in the visible unpainted metal areas.
The clear plastic or glass parts, if any, through which the publications are viewed are unbroken and reasonably free of cracks and dents.
The paper or cardboard parts or inserts are reasonably free of tears and are legible.
The structural parts are not dented or broken.
It is free of graffiti.
Upon determination by the Town Engineer that a newsrack has been installed, used or maintained in violation of this chapter, the Town Engineer shall issue an order to the distributor of the newsrack to correct the violation. Such order shall be telephoned or sent by facsimile to the distributor and confirmed by mailing a copy of the order by certified mail, return receipt requested. The order shall specifically describe the violation, suggest actions necessary to correct the condition, and inform the distributor of the right to appeal. Failure to properly correct the offending condition within 10 days (excluding Saturday, Sunday and legal holidays) after the mailing date of the order or to appeal the order as provided in § 87-11 within five days after its receipt shall result in the offending newsrack being summarily removed and possessed as unclaimed property. If the offending newsrack is not properly identified as to owner under the provisions of this chapter, it shall be removed immediately and processed as unclaimed property. An impound fee, which shall be measured by the Town's cost and expense of impounding, shall be assessed against each newsrack summarily removed. The Town Engineer shall cause inspection to be made of the corrected condition or of a newsrack reinstalled after removal under this section. The distributor of said newsrack shall be charged an inspection fee for each newsrack so inspected in an amount established by the Town Board. This fee shall be in addition to all other fees and charges required under this chapter.
Any person aggrieved by a finding, determination, notice, order or action taken under this chapter may appeal to the Town Administrator or the Town Administrator's designee. An appeal must be perfected within five days after receipt of notice of any protested decision or action, by filing with the Town Administrator a letter of appeal briefly stating the basis for the appeal. A hearing shall be held on a date not more than 15 days after receipt of the letter of appeal. The appellant shall be given at least five days' notice of the time and place of the hearing. The Town Administrator or the Town Administrator's designee shall give the appellant, and any other interested party, a reasonable opportunity to be heard in order to show cause why the determination of the Town Engineer should not be upheld. At the conclusion of the hearing, the Town Administrator shall make a final decision. The decision shall be immediately appealable to a court of competent jurisdiction.
Any newsrack in existence prior to the effective date of this chapter and which does not have a newsrack permit shall be removed or brought into conformance with the provisions of this chapter, including the issuance of a permit for such newsrack, within 45 days after the effective date of this chapter. If the distributor fails to comply with this provision, the Town Engineer shall issue an order to the distributor of the newsrack to correct such violation in accordance with § 87-10 of this chapter, and shall enforce such order in accordance with those provisions.
Nothing contained in this chapter shall be interpreted to limit or impair the exercise by the Town of its police power, in the event of an emergency, as determined by the Town Engineer, to remove any newsrack that presents a danger of imminent personal injury or property damage to users of the Town rights-of-way or would otherwise hamper or impair the fulfillment by the Town of its governmental obligations, including, but not limited to, snow removal and street cleaning.