[HISTORY: Adopted by the Town Board of the Town of Dickinson 4-11-2011 by L.L. No.
1-2011. Amendments noted where applicable.]
This chapter may be cited as the "Town of Dickinson Road Preservation
Law."
A.
The Town Board of the Town of Dickinson enacts this chapter under
the authority granted by § 10 of the New York State Municipal
Home Rule Law, New York State Constitution Article IX § 2(c)(6)
and Town Law, specifically subsection 1(ii)(a)(6),[1] which allows towns to adopt local laws regarding the acquisition,
care, management and use of its highways, roads, streets, avenues
and property.
[1]
Editor's Note: See Municipal Home Rule Law § 10,
Subdivision 1(ii)a(6).
B.
This chapter is also enacted pursuant to the authority of Subdivision
2 of § 23-0303 of the Environmental Conservation Law of
the State of New York which provides that "The provisions of this
article shall supersede all local laws or ordinances relating to the
regulation of the oil, gas and solution mining industries, but shall
not supersede local government jurisdiction over local roads or the
rights of local governments under the real property tax law."
C.
This chapter is enacted pursuant to the authority of Highway Law
§ 140, wherein the Highway Superintendent must cause certain
highways and bridges within the Town, to be kept in repair, to bring
an action in the name of the Town, against any person or corporation,
to sustain the rights of the public, in and to any Town highway in
the Town, and to enforce the performance of any duty enjoined upon
any person or corporation in relation thereto, and to recover any
damages sustained or suffered, or expenses incurred by such town,
in consequence of any act or omission of any such person or corporation,
in violation of any law or contract in relation to such highway and
other powers thereunder.
D.
Additionally, this chapter is enacted pursuant to the authority of
Highway Law § 320, which requires that those that injure
any highway or bridge maintained at the public expense, by drawing
or propelling over the same a load of such weight as to injure or
destroy the culverts or bridges along the same, or of such weight
that will destroy, break or injure the surface of any improved town
highway, or by any other act shall for every such offense forfeit
treble damages.
E.
This chapter also relies upon Town Law § 130, which allows
towns to enact ordinances, rules and regulations not inconsistent
with law, regulate the use of streets, highways, sidewalks and public
places by motor and other vehicles and regulating the manner in which
excavation may be made in or under the streets, highways, sidewalks
or public places and requiring an indemnity bond as a condition precedent
thereto or the Town Board may require as the condition precedent thereto,
the deposit in cash of such an amount as the Board may determine necessary
to cover the probable expense to the Town of the replacement by the
Town of the street, highway, sidewalk or public place, and the unexpended
balance, if any, shall be refunded to the depositor.
F.
Lastly, this chapter is enacted pursuant to Vehicle and Traffic Law
§ 1660, which allows towns to provide for the creation of
truck routes, for the permanent and temporary exclusion of certain
traffic and for the adoption of additional reasonable ordinances and
local laws with respect to traffic as local conditions require.
A.
The purpose of this chapter is to maintain the safety and general
welfare of Town residents by regulating high-impact commercial activities
that have the potential to adversely impact roads and property. Well-maintained
roads are important to the economic well-being of the Town. Construction,
maintenance, and operation of high-impact commercial endeavors (e.g.
timber harvesting, mining, natural gas drilling, wind energy facilities
and telecommunication facilities) can be economically beneficial.
This chapter is not intended to regulate such endeavors, but the intent
is to protect the Town roads and property from damage from such endeavors
that typically require high-frequency use of heavy equipment with
heavy loads. It is the intent of this chapter to insure that the Town's
roads are not damaged or harmed to the overall detriment of the Town
by a few individual users who utilize the roads in a manner that causes
extraordinary deterioration to the roads.
B.
Heavier trucks deteriorate the pavement structure at an accelerated
rate. A study at University of Texas found that one big rig pass causes
the damage equivalent to 2,000 to 3,000 cars. That damage increases
exponentially: A ninety-five-thousand-pound truck does two to three
times the damage of an eighty-thousand-pound truck. One eighty-thousand-pound
truck can cause the same damage as 800 to 1,000 cars. Multiple passes
exuberate the damage caused. As such, it is the intent of this chapter
to protect Town roads from the frequent passes of heavier trucks.
In the United States Department of Transportation's 1998 Draft
Comprehensive Truck Size and Weight Study, it was written that "pavement
deterioration increases with axle weight and with the number of axle
loadings a pavement experiences."
C.
Nothing contained in this chapter shall be deemed to limit the right
to farm as set forth in Article 25-AA of the New York State Agricultural
and Markets Law.
D.
Nothing contained in this chapter shall be deemed to unlawfully interfere
with interstate commerce.
The following terms shall have the following meaning in this
chapter.
A permit that covers more than one vehicle or truck; which
would be subject to the permitting process. Vehicles or trucks that
are owned, used, rented, leased, hired (including independent contractors)
or in any way utilized for a specific project, site or work location
shall be considered related vehicles and should be the subject of
a blanket permit.
A commercial bond to ensure that the condition of the Town
roads and/or property impacted by high-frequency truck traffic is
left in a good or better condition at the completion of the project
as they were at the start of the project.
The Building and Code Inspector of the Town, Town Code Enforcement
Officer, or such other Town official who exercises similar building,
code and enforcement powers.
Money put into the custody of a third party for delivery
to a grantee only after the fulfillment of the conditions specified.
A vehicle or related vehicles that have three or more axles
and which traverse/travel over 100 miles or more of Town roads or
other Town property during any five consecutive days. When calculating
whether a vehicle or related vehicles meet the definition of high-frequency
traffic, 100 miles and five consecutive workdays shall be used for
both individual permits and blanket permits.
The Highway Superintendent of the Town.
Delivery or pickup of merchandise or other property along
the Town roads by high-frequency truck traffic.
Any real property (including any improvements therein, thereon
or thereunder) or personal property owned by, or leased to, the Town.
Every vehicle operated or driven upon a public highway which
is propelled by any power other than muscular power, except:
Electrically-driven mobility assistance devices operated or
driven by a person with a disability;
Vehicles which run only upon rails or tracks;
Snowmobiles;
All-terrain vehicles;
Fire and police vehicles other than ambulances;
Farm-type tractors and all-terrain-type vehicles used exclusively
for agricultural purposes, or for snow plowing, other than for hire,
farm equipment, including self-propelled machines used exclusively
in growing, harvesting or handling farm produce, and self-propelled
caterpillar or crawler-type equipment while being operated on the
contract site.
Approval of an application for a road preservation permit
application. This includes blanket permits, which are preferred, where
there are multiple related vehicles.
The holder of a "Road Preservation Vehicle Permit" issued
pursuant to this chapter. Under a blanket permit, this shall include
the holder's contractors, subcontractors, employees and agents.
More than one vehicle; including those that are owned, used,
rented, leased, hired (including independent contractors) or in any
way utilized for a specific project, site or work location. When calculating
if related vehicles meet the definition of high-frequency truck traffic,
the number of axles shall be counted on each vehicle separately; however,
the number of miles shall be the combination of all vehicles with
three or more axles.
Worksheet to be completed by the potential permittee, summarizing
the project, project location, start and completion dates, expected
maximum gross vehicle weight used for the project, proposed truck
routes, and any other items that the Town Board deems necessary.
Town of Dickinson, a municipality located in the County of
Broome, State of New York.
The Town Board of the Town of Dickinson; which is comprised
of the Council persons and Supervisor duly elected.
The duly elected Town Clerk of the Town of Dickinson.
Any Town highway, road, street, avenue, boulevard, parkway,
shoulder guard rail, concourse, driveway, easement, right-of-way,
bridge, culvert, sluice pipe, ditch, dock, tunnel, sidewalk, or any
utilities or improvements therein, thereon or thereunder, outside
of the Village of Dickinson.
Every motor vehicle designed, used, or maintained primarily
for the transportation of property.
Every device in, upon, or by which any person or property
is or may be transported or drawn upon a highway, except devices moved
by human power or used exclusively upon stationary rails or tracks.
[1]
Editor's Note: Appendix A is on file in the Town offices.
A.
All trucks, tractors, commercial vehicles, tractor-trailer combinations,
tractor-semitrailer combinations, tractor trailer-semitrailer combinations,
or motor vehicles that are considered high-frequency truck traffic
are excluded from all Town roads in the Town of Dickinson, except
that high-frequency truck traffic operated in the Town of Dickinson
shall be restricted (except as expressly hereinafter permitted) to
the following designated "truck route system":
(1)
The designated "Town of Dickinson Truck Route" shall be limited to
and consist of routes on, over and along any and all state- and county-owned/maintained
roadways lying within the boundaries of the Town of Dickinson. No
high-frequency truck traffic shall use Town highways or roadways,
except as hereinafter permitted.
B.
The initial determination that the standards of high-frequency truck
traffic have been met shall be made by the Town Board. However, if
during the application process a permittee alleges that they do not
meet the threshold of high-frequency truck traffic, they may present
such evidence to the Town Board for a review and determination.
C.
There shall be signs installed at all major highways entering Town,
indicating that high-frequency truck traffic must use the truck route
system or local delivery by permit.
A.
Local delivery by high-frequency truck traffic is allowed but only
after compliance with this chapter and after obtaining a permit, a
blanket permit, or after entering into a road use agreement (as provided
for herein).
B.
When there is high-frequency truck traffic that involves more than
one vehicle, including those that are owned, used, rented, leased,
hired (including independent contractors) or in any way utilized for
a specific project, site or work location, the permittee must apply
for a blanket permit or (as permitted elsewhere) a road use agreement.
Individual permits will not be allowed in such circumstances.
C.
The permittee for a blanket permit or road use agreement shall be
an individual or entity that controls or directs the specific project,
site or work location and that application must include all vehicles
owned, used, rented, leased, hired (including independent contractors)
or in any way utilized.
A.
The Town Board is hereby authorized to promulgate an application
form requesting a permit and the permit to be issued upon review and
approval of said application.
B.
The Town Clerk is hereby designated as the authority to receive applications
for permits to operate or move a vehicle or a combination of vehicles,
the weights and frequency of which exceed the limitations provided
herein. The Town Clerk must submit a copy of the applications and
any approved permit to the Town Code Enforcement Officer and the Highway
Superintendent.
C.
The Town Board is hereby designated as the authority to approve applications
for a permit to operate, transport, or move high-frequency truck traffic,
as defined above, on, over or across a designated Town road or other
Town property.
D.
This chapter shall be administered and jointly enforced by the Town
Enforcement Officers and the police agencies of Broome County and
New York State or officials authorized by the Town Board of the Town
of Dickinson. Violations may be reported by verbal or written complaint
by at least one person, including the Enforcement Officer.
(1)
Town Enforcement Officers and the police agencies of Broome County
and New York State and any other officials authorized by the Town
Board of the Town of Dickinson are authorized to enforce any violation
of the chapter.
A.
At time of initial application and continuing thereafter, the person
requesting the permit shall provide the following:
(1)
A proposed road map that the high-frequency truck traffic will travel
on;
(2)
A video or photographic documentation demonstrating the condition
of the proposed road and/or property described in the permit;
(3)
Copies of valid New York State vehicle registrations for each vehicle;
(4)
Copies of valid New York State special hauling permits, if any, for
each vehicle;
(5)
Proof of insurance as required herein;
(6)
Permit fee of $25 per permit and $100 per blanket permit;
(7)
Any other documents, maps, sketches, and plans, which the Town Board
may require; and
(8)
All other requirements of this chapter; including an escrow account,
bond, etc., must be satisfied prior to approval of any permit application.
B.
Information shall be provided with the application on each individual
vehicle owned, used, rented, leased, hired (including independent
contractors) or in any way utilized for a specific project, site or
work location.
C.
Whenever possible, the permittee must request a blanket permit covering
all of the vehicles, which such permittee plans to use on Town roads
or highways. If any such blanket permit is thereafter issued, all
of the vehicles specifically listed on such permit shall be deemed
to be covered by such permit.
D.
Additionally, after issuance of the permit, the applicant must provide
updated information including but not limited to changes in truck
routes, project, site or work location, etc. If, in the opinion of
the Town Board, the changes are significant, then the permittee must
file a new permit application; including new relevant fees, bonds,
escrows, insurances, etc.
E.
Every permit or blanket permit shall be carried on the vehicle to
which it refers and shall be open to inspection of any authorized
enforcement officer, peace officer or police agencies of Broome County
or other officials authorized by the Town Board.
F.
After issuance of the permit, the permittee will arrange for video
or photographic documentation of condition of the roads, shoulders,
and all structures (culverts, bridges, etc.) that will be traversed
by the permitted traffic on monthly basis and within two weeks after
the conclusion of the permitted work. All video or photographic documentation
will be submitted to the Town Board within one week of recording.
Failure to submit the required video or photographic documentation
will result in immediate revocation of the work permit.
A permittee, who has more than one vehicle which qualifies as
high-frequency truck traffic, may request that the Town enter into
a Town-wide road maintenance agreement in lieu of separate permits
for each vehicle(s) or even a blanket permit. Said road maintenance
agreement shall conform to the minimum requirements of this chapter,
would be executed by the Town and the permittee and shall include
such additional terms as are reasonably required by the Town, including
but not limited to insurance, maintenance bond, truck traffic routes,
traffic schedules, inspections and road surveys. All of the vehicles
specifically listed in such agreement, including those owned by the
holder, its agents and subcontractors, shall be deemed to be covered
by such agreement, and upon execution of the agreement the Commissioner
shall issue a blanket permit.
A.
With the exception of normal wear and tear, the permittee is responsible
for all damages, injuries, discharges or spills that occur on or to
the Town roads, other Town property, ditches, curbs, sidewalks or
other improvements and to public utilities of the Town in the roadway.
B.
It is the permittee's responsibility to obtain the permission
of any railroad companies operating within the Town to schedule traffic
across any railroad crossings located on Town roads so as to avoid
or minimize delays to rail traffic, and to maintain and repair said
railroad crossings, as necessary.
C.
Upon due notice being given to the permittee and at the Town's
option, the Town may allow the permittee to repair all damages or
the Town may arrange the necessary repairs and charge the permittee
for all labor and materials at the prevailing rates. The highway shall
be restored and the integrity of the repair maintained for a period
of one year from the date of any repairs. Particular attention is
called to the necessity of thoroughly compacting the backfill, which
will be required by the Town. If the Town requests the permittee to
repair the damages, such repair will be done to the specifications,
time line and any and all other requirements of the Town.
A.
The permittee shall present to the Town certificates of insurance
evidencing the acquisition of liability insurance coverage naming
the Town as an additional insured on a noncontributory basis with
the minimum limits of coverage for bodily injury equal to $1,000,000
for each person injured, $2,000,000 for aggregate bodily injury resulting
from each occurrence, and $500,000 property damage.
B.
Said insurance shall be maintained throughout the term of the permit,
at the cost and expense of the permittee, and the aforementioned certificates
shall provide for 30 days' notice to the Town prior to cancellation
of coverage.
C.
All persons performing work under this permit and who are required
to be covered by workers' compensation insurance and disability
benefits insurances under New York law shall be covered at the cost
and expense of the permittee.
A.
The permittee shall present to the Town a maintenance bond in the
amount of $250,000 and a bank letter of credit in the amount of $10,000
in favor of the Town guaranteeing compliance with the provisions of
the permit. At such time, if ever, that said letter of credit and/or
maintenance bond is expended, the permittee shall replace the same
within five days' written notice from the Town, failing which
the permit shall be subject to revocation.
B.
Such maintenance bond shall be maintained for at least a period of
one year after repairs have been approved by the Town. The highway
shall be restored and the integrity of the repair maintained for a
period of one year from the date of any repairs.
A.
The permittee will be required to agree to fully indemnify, defend,
save and hold harmless the Town of Dickinson and all of its departments,
bureaus, divisions, boards, officers and employees from and against
any and all claims, costs, damages, expenses, charges, risks, losses,
lawsuits, judgments, executions, penalties, fines, assessments or
any other liability of any type arising out of, occurring in connection
with, or resulting from any and all activity to be performed by permittee
pursuant to this permit.
B.
By accepting the permit, the permittee shall be deemed to have agreed
to all of the defense, indemnity and save harmless provisions of this
chapter and all other provisions of this chapter.
The permittee's obligations hereunder to repair and restore,
the permittee's obligations hereunder to defend, indemnify and
hold harmless, and the permittee's other liability and obligations
hereunder shall not be limited by the limits of any applicable insurance
coverage, highway permit bond, maintenance bond, letter of credit,
comparable bond, escrow account, cash deposit; or rights of the Town
under any New York State or federal law, rule, regulation or statute;
including Subdivision 3 of § 23-0303 of the Environmental
Conservation Law of the State of New York. The permittee's obligations
hereunder to repair and restore, the permittee's obligation hereunder
to defend, indemnify, and hold harmless, and the permittee's
other liability and obligations hereunder shall survive any termination
or revocation of the permit.
The Highway Superintendent and the Building and Code Inspector
shall each have the right and authority to issue stop-work orders
to those operating in violation of the terms of this permit, or contrary
to the permittee's application or conditions upon which its permit
was issued or in violation of this chapter, in law, in violation of
applicable provisions of law.
Upon the violation of any provisions of this permit, or violation
of any provisions of this chapter, or violation of applicable provisions
of law, or violation of any conditions, the Town Board may suspend
any such permit issued hereunder for no more than 30 days, and following
a public hearing at which the permittee shall have the right to appear
and be heard, the Town Board may permanently revoke any permit on
written notice to the permittee.
A.
The permit shall not be assigned or transferred without the written
consent of the Town Board.
B.
The Town Clerk shall be given three business days' written notice
by said permittee of the date when it intends to begin the activity
authorized by the permit, and prompt notice of its completion.
C.
The permit shall remain valid only for so long as the permittee continues
to hold a valid New York State hauling permit or divisible load permit;
where necessary.
D.
The permit shall not authorize the holder to exceed the maximum gross
weight limit authorized for crossing an R-Posted bridge or culvert.
E.
Due to the vital nature of the following vehicles in providing public
services deemed necessary in preventing emergencies or in safeguarding
the public health, safety and welfare, and since overweight vehicles
may be required to perform these services, the following vehicles
are granted exemptions from the permitting process of this chapter:
F.
Valid insurance, maintenance bonds and letters of credit shall be
maintained as required by herein.
G.
Traffic will be maintained in accordance with the Uniform Traffic
Control Manual.
H.
If any of these conditions are not met, the permit is automatically
voided and all work shall cease.
A.
Any person who violates any provision of this chapter shall be deemed
guilty of a misdemeanor and, upon conviction thereof, shall be subject
to penalties in a fine of not less than $1,000 and imprisonment up
to one year.
B.
In addition to those penalties prescribed herein, any person who
violates any provision of this chapter shall be liable for a civil
penalty in an amount not to exceed $5,000 for each day or part therefor
during which such violation continues. The civil penalties provide
by this subsection shall be recoverable in an action instituted in
the name of the Town.
C.
If the violation is of a continuing nature, each twenty-four hour
period during which it occurs shall constitute an additional, separate
and distinct offense.
D.
An action or proceeding may be instituted in the name of the Town,
in a court of competent jurisdiction, to prevent, restrain, enjoin,
correct, or abate any violation of, or to enforce any provision of
this chapter. In particular, but not by way of limitation, where there
is an violation of this chapter, any action or proceeding may be commenced
in the name of the Town, in the Supreme Court or in any other court
having the requisite jurisdiction, to obtain an order directing abatement
of the condition in violation of such provisions. The Town may seek
restitution for costs incurred by the Town in remedying each violation,
including but not limited to reasonable attorney's fees.
E.
Remedies not exclusive. No remedy or penalty specified in this section
shall be the exclusive remedy or penalty available to address any
violation described in this chapter. Any remedy or penalty specified
in this section may be pursued at any time, whether prior to, simultaneously
with, or after the pursuit of any other remedy or penalty specified
in this section.
A.
The Town hereby retains and reserves all rights it has now or may
have hereafter, pursuant to the provisions of Subdivision 3 of section
23-0303 of the Environmental Conservation Law, to request funds (by
filing a request therefor with the New York State Commissioner of
Environmental Conservation) from the oil and gas fund to reimburse
or compensate the Town for costs related to repairing damages to any
Town road, or other Town property.
B.
The Town hereby retains and reserves all rights it has now or may
have hereafter, pursuant to Navigation Law Article 12 to make a claim
against the New York Environmental Protection And Spill Compensation
Fund to reimburse or compensate the Town for cost related to repairing
damages to any Town road or other Town property.
C.
The Town hereby retains and reserves all other rights it has now
or may hereafter to seek reimbursement or compensation for costs related
to repairing damages to any Town road or other Town property.
The Board may hire any consultant and/or expert necessary to
assist the Town Board in reviewing and evaluating the application.
A.
The Town requires an applicant to deposit with the Town funds sufficient
to reimburse the Town for all reasonable costs of consultant and expert
evaluation and consultation to the Town Board in connection with the
review of any application. The initial deposit shall be the sum of
$5,000. However, the Town Board may, in its discretion, reduce said
fee upon good cause shown. These funds shall accompany the filing
of an application, and the Town shall maintain a separate escrow account
for all such funds. The Town's consultants/experts shall, in
accordance with an agreement between the Town and its consultants
or experts, bill or invoice the Town not less frequently than monthly
for its services in reviewing the application and performing its duties.
If at any time during the review process this escrow account has a
balance that shall not reasonably cover the cost of the remaining
work of the Town's consultants/experts, the Town will require
applicant to immediately replenish said escrow account in an amount
set by the Town, but not to exceed $2,500. Such additional escrow
funds must be deposited with the Town before any further action or
consideration is taken on the application. If, at the conclusion of
the review process, the cost of such consultant/expert services is
more than the amount escrowed pursuant hereto, the applicant shall
pay the difference to the Town prior to the issuance of any special
permit. In the event that the amount held in escrow by the Town is
more than the amount of the actual billing or invoicing by the Town's
consultants or experts, the difference shall be promptly refunded
to the applicant.
B.
A request may be made by the applicant to reduce or eliminate the
funds needed for the consultant/expert escrow. After a recommendation
by the Attorney for the Town, Engineer for the Town and/or any other
consultant/expert engaged by the Town pursuant to this chapter, the
Town Board shall review the request and make a determination based
upon the scope and complexity of the project, the completeness of
the application and other information as may be needed by the Town
Board or its consultant/expert to complete the necessary review and
analysis. Additional escrow funds, as required and requested by the
Town, shall be paid by the applicant. The initial amount of the escrow
deposit may be established by Town Board upon receipt of information
sufficient to make such a determination.
C.
As used in this section, the term "costs and expenses" shall be deemed
to include the reasonable fees charged by engineers, consultants and/or
experts hired; reasonable administrative costs and expenses incurred
by the Town in connection with the permitting process and the repair,
restoration and preservation of Town roads and other Town property;
and reasonable legal fees, accountants' fees, engineers' fees,
costs, expenses, disbursements, expert witness fees and other sums
expended by the Town in pursuing any rights, remedies or claims to
which the Town may be entitled under this chapter or under applicable
provisions of law, as against any permittee, any person who has violated
this chapter, any insurance company, any bonding company, any issuer
of a letter of credit, and/or any United States or State of New York
agency, board, department, bureau, commission or official.
D.
These funds shall accompany the filing of the application, and the
Town shall maintain a separate escrow account for all such funds.
E.
The Town is hereby authorized to withdraw funds from said escrow
account (without prior notice to the permittee) in order to promptly
reimburse the Town for any costs and expenses (as defined herein).
The Town must provide a monthly update as to monies expended from
the escrow account.
F.
In the event that there is any balance remaining in the escrow account
as of the date that the Town Board determines that the permit has
expired and further determines that no damages or injuries have been
caused to any Town road or other Town property (and that no discharges
or spills have occurred on any Town road or other Town property) for
which the Town has not been fully reimbursed, the Town shall pay to
the permittee the balance remaining in the escrow account.
All requests for a waiver from the standards set forth in this
chapter shall be made to the Town of Dickinson Town Board in writing
and shall contain the grounds on which the appellant relies for requesting
the waiver, including all allegations on any facts on which the appellant
will rely. Where the Town Board finds that due to special circumstances
of the particular case a waiver of certain requirements is justified,
then a waiver may be granted. No waiver shall be granted, however,
unless the Town Board finds and records in its minutes that:
A.
Granting the waiver would be keeping the intent and spirit of this
chapter and is in the best interests of the community;
B.
There are special circumstances involved in the particular case;
C.
Denying the waiver would result in undue hardship to the applicant,
provided that such hardship has not been self-imposed;
D.
The waiver is the minimum necessary to accomplish the purpose.
When applicable, the Town shall at all times comply with applicable
provisions of the Environmental Conservation Law of the State of New
York and applicable provisions of the state environmental quality
review regulations (6 NYCRR Part 617) (hereinafter "SEQRA").
