[Adopted 10-4-1971 by L.L. No. 1-1971 (Ch. 41 of the 1971 Code)]
The following words, when used in this article, shall have the meanings ascribed to them in this section, except in those instances where the context clearly indicates otherwise:
- Any person who makes application for a permit.
- The duly enacted Clerk of the Village of Buchanan.
- Any unforeseen circumstance or occurrence, the existence of which constitutes a clear and immediate danger to persons or properties.
- Any person who has been issued a permit and has agreed to fulfill all the terms of this article.
- Includes any natural person, partnership, firm, association, utility, corporation or authority created pursuant to law. Whenever used in any section prescribing and imposing a penalty, the term "person," as applied to associations, shall mean the partners or members thereof, and as applied to corporations, the officers thereof.
- Includes a public street, public easement, public right-of-way, public highway, public alley, public way or public road accepted or maintained by the Village.
- The Village of Buchanan, County of Westchester, State of New York.
In this article, the singular shall include the plural, and the masculine shall include the feminine and the neuter.
It shall be unlawful for any person to make a tunnel, opening or excavation of any kind in or under the surface of any street without first securing a permit from the Village for each separate undertaking; provided, however, that any person maintaining pipes, lines or other underground facilities in or under the surface of any street may proceed with an opening without a permit when emergency circumstances demand the work to be done immediately, provided that the permit could not reasonably and practically have been obtained beforehand. The person shall thereafter apply for a permit on the first regular business day on which the office of the Clerk is open for business, and said permit shall be retroactive to the date when the work has begun.
No person to whom a permit has been granted shall perform any of the work authorized by such permit in any amount or quantity greater than that specified in the permit, except that upon the approval by the Clerk additional work may be done under the provisions of the permit in any amount not greater than 10% of the amount specified in the permit. Any deposit and bond posted in connection with the original permit shall be deemed to cover any such additional work as may be approved pursuant to this section within the limit mentioned herein.
Work for which a permit has been issued shall commence within 10 days after the issuance of the permit thereof. If not so commenced, the permit shall be automatically terminated. Permits thus terminated may be renewed upon the payment of an additional permit fee as originally required.
Permits are not transferable from one person to another, and the work shall not be made in any place other than the location specifically designated in the permit.
Every permit shall expire at the end of the period of time which shall be set out in the permit. If the permittee shall be unable to complete the work within the time specified, he shall, prior to expiration of the permit, present in writing to the Clerk a request for an extension of time, setting forth therein the reasons for the requested extension. If, in the opinion of the Clerk, such an extension is necessary and not contrary to the public interest, the permittee may be granted additional time for the completion of the work.
All street openings required by utilities owned and/or operated by the Village shall be made and restored under the direction and supervision of the Clerk. The permit, fee, deposit, insurance and bond requirements of this article shall not be applicable to any openings made by such municipality owned and/or operated utilities.
The provisions of this article shall not be applicable in those instances where the highway is maintained by the State of New York or by the County of Westchester.
Every permit shall be granted subject to the right of the Village or of any other person entitled thereto to use the street for any purpose for which such street may lawfully be used, not inconsistent with the permit.
Any permit may be revoked by the Clerk, after notice to the permittee, for:
A violation of any condition of the permit or of any provision of this article.
A violation of any provision of any other applicable article or law relating to the work.
The existence of any condition or the doing of any act constituting or creating a nuisance or endangering the lives or properties of others. A permittee may be granted a period of three days from the date of the notice to correct the violation and to proceed with the diligent prosecution of the work authorized by the permit before said permit is revoked. Written notice of any such violation or condition shall be served upon the permittee or his agent engaged in the work. The notice shall contain a brief statement of the grounds relied upon for revoking the permit. Notice may be given either by personal delivery thereof to the person to be notified or by certified or registered United States mail addressed to the person to be notified.
When any permit has been revoked and the work authorized by the permit has not been completed, the Clerk shall do such work as may be necessary to restore the street or part thereof to as good a condition as before the opening was made. All expenses incurred by the Village shall be recovered from the deposit or bond the permittee has made or filed with the Village.
It shall be the duty and responsibility of any applicant to:
Make a written application for such permit with the Clerk on such form as he shall prescribe. No work shall commence until the Clerk has approved the application and plan and issued a permit and until the permittee has paid and provided all fees, deposits, certificates and bonds required by this article.
Furnish in triplicate a plan showing the work to be performed under said permit. If approved by the Clerk, one copy of such plan shall be returned to the applicant at the time the permit is granted.
Agree to save the Village, its officers, employees and agents harmless from any and all costs, damages and liabilities which may accrue or be claimed to accrue by reason of any work performed under said permit. The acceptance of any permit under this article shall constitute such an agreement by the applicant whether the same is expressed or not.
If the work to be undertaken by the applicant is such that it will affect the use of properties abutting or adjoining the project, the applicant shall so notify the Clerk, and the Clerk shall provide the applicant a list of the names and addresses of the owners and/or tenants of such properties. Upon receipt of said list, the applicant shall notify the affected property owners and/or tenants of the proposed work, date and time that said work will be done and whether alternate egress will be necessary. Said notice shall be made by certified mail, return receipt requested, or by hand delivery by the applicant to said affected property owners and/or tenants. Proof of service of said notice shall be provided to the Clerk prior to the issuance of a permit.
[Added 1-6-2014 by L.L. No. 2-2014]
If the work to be undertaken by an applicant shall affect other subsurface installations in the vicinity of the proposed opening, the applicant shall also notify, in the manner set forth above, the owners of such facilities of the proposed work.
[Added 1-6-2014 by L.L. No. 2-2014]
It shall be the duty and responsibility of any person receiving a permit to:
Pay a permit fee in an amount as set from time to time by resolution of the Board of Trustees; provided, however, that public utilities or authorities may elect to be billed monthly for such fees as they accrue.
[Amended 2-7-2011 by L.L. No. 9-2011]
Alternative provisions where the Village does not restore the opening are as follows:
Submit, when required by the Clerk, a list of the owners and tenants of all properties abutting the area where the work authorized by the permit is to be performed.
Present evidence that all materials, labor and equipment which are needed to complete such work as authorized by the permit are available.
Keep the original copy of the permit and an approved copy of the plan at all times while the work is in progress at the location for which said permit was granted and show such permit and/or plan upon demand by the Village or police authorities.
The Clerk is hereby authorized and directed to adopt, from time to time, such written regulations as may be necessary for the implementation and enforcement of the provisions of this article. Such regulations shall include but shall not be limited to:
Limitations on the size of an opening.
Restrictions for the protection of existing subsurface installations, monuments and drainage systems.
Requirements for the storage and removal of excavated materials.
Designation of safety precautions to be taken by the permittee.
Restrictions as to the periods of day when the work may be performed.
Requirements for backfilling, inspecting and restoring of openings.
Any regulations adopted by the Clerk shall become effective within 30 days after submission to the Village Board unless the regulations are disapproved by the Village Board within the thirty-day period.
The regulations or amendments adopted by the Clerk and approved by the Village Board shall be published once in the official newspaper of the Village. Copies of the published regulations also shall be made available in the office of the Clerk.
[Amended 2-7-2011 by L.L. No. 9-2011]
The Clerk, upon receipt of a properly completed application, shall determine the amount of the deposit to be made by the permittee; provided, however, that the deposit shall not be less than an amount as set from time to time by resolution of the Board of Trustees. The deposit shall be paid at the time the permit is received, and the deposit shall be used to reimburse the Village for the cost of any work and materials furnished by it in connection with the work authorized by the permit, to cover all necessary inspections of said work and for any such other purpose set forth in this article.
The deposit may be either in the form of a certified treasurer's or cashier's check or in lawful money of the United States.
If any deposit is less than sufficient to pay all costs, the permittee shall, upon demand, pay to the Village an amount equal to the deficiency. If the permittee fails or refuses to pay such deficiency, the Village may institute an action to recover the same in any court of competent jurisdiction until such deficiency is paid in full. No additional permits shall be issued to such permittees.
Whenever any public utility or authority shall anticipate more than one street opening or excavation per calendar year, such utility or authority may post one deposit in an amount and form as provided for the calendar year or part thereof to cover the cost of any and all work.
The Clerk is authorized to establish a schedule of charges for inspections, labor, materials and such other expenses as may be incurred by the Village in meeting the requirements of this article. The schedule shall be open to public inspection in the office of the Clerk upon demand.
The decision of the Clerk as to the cost of any work done or repairs made by him or under his direction, pursuant to the provisions of this article, shall be final and conclusive as to such cost.
Upon notification by the permittee that all work authorized by the permit has been completed and after restoration of the opening, the Clerk shall refund to the permittee his deposit, less all cost incurred by the Village in connection with said permit. In no event shall the permit fee be refunded.
[Amended 2-7-2011 by L.L. No. 9-2011]
Each applicant, upon the receipt of a permit, shall provide the Village with an acceptable corporate surety bond conditioned for compliance with the street opening specifications of the Village and the provisions of this article. The Clerk shall determine the amount of the bond, and it shall be in relation to the cost of the restoration of the pavement cut to be made by the permittee; provided, however, that the minimum amount of the bond shall not be less than an amount as set from time to time by resolution of the Board of Trustees. The term of each bond shall begin from the completion date of the permanent restoration of the opening by the Village and shall terminate upon the receipt by the permittee of a certificate of final inspection from the Clerk. If the permittee anticipates requesting more than one permit a year, he may file a continuing corporate surety bond conditioned for compliance with the specifications of the Village and the provisions of this article in such amount as the Clerk deems necessary. The amount of such bond shall be in relation to the cost of restoring pavement cuts to be made by the permittee throughout the year.
Each applicant, upon the receipt of a permit, shall provide the Village with an acceptable corporate surety bond to guarantee faithful performance of the work authorized by a permit granted pursuant to this article. The amount of the bond shall be 100% of the estimated cost of restoring the street opening. The term of the bond shall begin upon the date of posting thereof and shall terminate upon the receipt by the permittee of a certificate of final inspection from the Clerk. If the permittee anticipates requesting more than one permit per year as required by this article, he may furnish one continuing corporate surety bond to guarantee faithful performance in such amount as the Clerk deems necessary. The amount of such bond shall be in relation to the cost of restoring pavement cuts to be made by the permittee throughout the year.
Whenever the Clerk shall find that a default has occurred in the performance of any term or conditions of the permit, written notice thereof shall be given to the principal and to the surety on the bond. Such notice shall state the work to be done, the estimated cost thereof and the period of time deemed by the Clerk to be reasonably necessary for the completion of such work.
After receipt of such notice, the surety must, within the time therein specified, either cause the required work to be performed or, failing therein, indemnify the Village for the cost of doing the work as set forth in the notice.
Each applicant, upon the receipt of a permit, shall provide the Village with an acceptable certificate of insurance indicating that he is insured against claims for damages for personal injury as well as against claims for damage which may arise from or out of the performance of the work, whether such performance be by himself, his subcontractor or anyone directly or indirectly employed by him. Such insurance shall cover collapse, explosive hazards and underground work by equipment on the street and shall include protection against liability arising from completed operations. The amount of the insurance shall be prescribed by the Clerk in accordance with the nature of the risk involved; provided, however, that the liability insurance for bodily injury in effect shall not be in an amount less than $100,000 for each person and $300,000 for each accident and for property damages and an amount not less than $50,000, with an aggregate of $100,000, for all accidents. Public utilities and authorities may be relieved of the obligation of submitting such certificate if they are insured in accordance with the requirements of this article.
When the Village shall improve or pave any street, the Village Clerk shall first give notice to all persons owning property abutting on the street about to be paved or improved and to all public utilities and authorities operating in the Village, and all such persons, utilities and authorities shall make all connections as well as any repairs thereto which would necessitate excavation of the street, within 30 days from the giving of such notice. The time shall be extended if permission is requested in writing and approved by the Village after consultation with the Village Clerk and Engineer.
No permit shall be issued by the Clerk which would allow an excavation or opening in a paved and improved street surface less than five years old unless the applicant can clearly demonstrate that public health or safety require that the proposed work be permitted or unless an emergency condition exists.
If, by special action of the Clerk, a permit is issued to open any paved and improved street surface less than five years old, a penalty charge shall be made for the opening, except that the penalty shall be waived in the event that the work is of an emergency nature. The penalty charge shall be on a sliding scale and shall be equal to 2% of the cost of restoring the opening for each elapsed month or fraction thereof of the five-year restricted period.
Every person owning, using, controlling or having an interest in pipes, conduits, ducts or other structures under the surface of any street used for the purpose of supplying or conveying gas, electricity, communication impulses, water or steam to or from the Village or to or from its inhabitants or for any other purposes shall file with the Clerk, within 120 days after the adoption of this article, a map, or set of maps, each drawn to a scale of not less than one inch to 200 feet, showing the location, size and description of all such installations.
Within 30 days after the first day of January of each and every year, such person shall file with the Clerk a corrected map or set of maps, each drawn to a scale as above, showing such installations, including all those made during the previous year; provided, however, that if no additions have been made to its installation during the previous year, a utility or authority may file with the Clerk a written statement to that effect, within the period of time specified above. A utility or authority may, at its own option, elect to provide corrected atlas sheets throughout the year as they are available rather than proceed as above noted.
Each map herein required shall be accompanied by an affidavit, endorsed thereon, to the effect that the same correctly exhibits the details required to be shown by this section.
Whenever any pipe, conduit, duct, tunnel or other structure located under the surface of any street, or the use thereof, is abandoned, the person owning, using, controlling or having an interest therein shall, within 30 days after such abandonment, file with the Clerk a statement in writing giving in detail the location of the structure so abandoned.
Each map, or set of maps, filed pursuant to the provisions of this article shall show in detail the location of all such structures abandoned subsequent to the filing of the last preceding map or set of maps.
When the Village plans to pave or improve streets in which there are abandoned facilities, the owner of such facilities shall be notified to remove them if, in the opinion of the Board of Trustees, their removal is in the best interest of the Village. If their owner shall refuse to remove such facilities, the Village shall remove the abandoned facilities, and the owner shall reimburse the Village for such approval.
[Added 1-6-2014 by L.L. No. 2-2014]
Members of the Police Department and/or the Building Inspector and/or the Highway Department of the Village of Buchanan shall administer and secure compliance with this article as may seem proper or required in the circumstances, including the removal of obstructions to roadways and property to allow for ingress and egress.
Editor’s Note: Former § 167-45, Notices to property owners and tenants, was repealed 1-6-2014 by L.L. No. 2-2014.
The Clerk shall notify, in writing, the Village police and fire authorities of all street opening permits he grants. Such notification shall state the nature of the work to be done, proposed beginning and completion dates and the location of such project.
[Amended 1-6-2014 by L.L. No. 2-2014]
Any person violating any of the provisions of this article or any regulations and specifications adopted thereunder shall, upon conviction before the Justice of the Village, or any Justice having jurisdiction, be sentenced to pay a fine of not less than $500 nor more than $2,000 for each offense and costs of prosecution and, in default of payment of said fine and costs, to imprisonment for a period not exceeding 30 days. Each day that a violation is permitted to exist after notice in writing shall have been served by the Clerk shall constitute a separate offense.