[HISTORY: Adopted by the Town Board of the
Town of Ellicott as indicated in article histories. Amendments noted
where applicable.]
[1]
Editor's Note: This local law superseded former
Ch. 125, Streets and Sidewalks, Art. I, Notification of Defects, adopted
5-4-1977 by L.L. No. 1-1977, as amended.
This article is enacted in recognition of the
fact that the Town of Ellicott is the owner of various and sundry
parcels of real estate located throughout the township; that many
of these parcels are seldom visited by Town of Ellicott officers or
employees or their agents and that it is not economically feasible
for the Town of Ellicott to have such officers, employees or their
agents visit all the Town of Ellicott's properties on a regular basis;
and that the condition of these parcels may change from time to time,
at times presenting a danger to members of the general public, or
others, who might visit the property. It is the purpose of this article
to enlarge the class of properties with respect to which notices of
defect must be filed with the Town as a precondition to municipal
tort liability beyond that otherwise provided for in § 50-e,
Subdivision 4, of the General Municipal Law. The Town of Ellicott
is hereby acting under the powers established in the Municipal Home
Rule Law and the New York State Constitution.
No civil action shall be maintained against
the Town of Ellicott nor against any Town officer or employee for
damages or injuries to persons or property sustained by reason of
any real property owned by the Town of Ellicott, or improvements on
any such real property or any street, highway, bridge, culvert, sidewalk
or crosswalk, or of the existence of any snow or ice thereon, or being
defective, out of repair, unsafe, dangerous or obstructed, unless
written notice of such defective, unsafe, dangerous or obstructed
condition of such real property or improvement thereupon was actually
given to the Town Clerk or Town Superintendent of Highways, and there
was a failure or neglect, within a reasonable time after the giving
of such notice, to repair or remove the defect, danger or obstruction
complained of.
Shall any provision of this article or its application
to any person or circumstance be found invalid or unenforceable, the
remainder of this article, or the application of such term or provision
to persons or circumstances other than those to which it is held invalid
or unenforceable, shall not be affected thereby.
[Adopted 10-19-2020 by L.L. No. 2-2020]
The Town Council of the Town of Ellicott hereby finds that the
existing laws which apply to right-of-way, street and driveway openings
are inadequate and do not vest the Superintendent of Highways with
sufficient authority to ensure that work is done in a proper manner.
The Town Council therefore finds that it is necessary to adopt this
article in order to establish general standards governing the issuance
of permits for sidewalk, right-of-way, street and driveway openings
as provided in Town Law § 130, Subddivision 7.
A.Â
It shall be unlawful for any person to open, dig up, cut, remove,
lower, raise, or create new access or egress to or from any street,
highway or any other way or alter any street, sidewalk, right-of-way
or portion thereof without first having obtained a permit authorizing
the work as hereinafter provided.
B.Â
Any municipality or utility provider 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 Highway Superintendent is open for
business, and said permit shall be retroactive to the date when the
work was begun.
C.Â
The provisions of this article shall not be applicable in those instances
where the highway is maintained by the State of New York, the County
of Chautauqua and the Villages of Celoron and Falconer.
A.Â
Application, in writing, shall be filed in duplicate with the Superintendent
of Highways upon application forms which he shall provide or in such
other manner as he shall proscribe, which shall include the name or
names of the owners for whom the work is to be done and the name or
names of the contractors who are to perform the work for which the
street, sidewalk, or right-of-way is opened; and the dimensions of
the breadth or width, length and depth of such opening; and contain
a short statement of the purpose for which the street is to be opened.
If requested, the application shall be accompanied by a plan or map
showing in detail the location of the proposed opening of the highway
or highways therein identified. The application shall also be accompanied
by the nonrefundable fee to be paid to the Town of Ellicott. The application
fee will be set forth in the Town of Ellicott schedule of fees.
B.Â
All applicants shall furnish a refundable case deposit or bond equal
to the amount of the estimated cost of restoring the pavement cut
or other excavation to be made by the permittee. The sum is to be
deposited with the Clerk of the Town of Ellicott.
C.Â
The amount of the security deposit shall be set forth in the Town
of Ellicott schedule of fees. Any cash deposit shall be returned to
the applicant or the bond exonerated within 10 business days upon
final inspection and approval of the permitted work by the Superintendent
of Highways. Public utilities may be exempt from the deposit requirement
if a satisfactory agreement between the utility and the Town is in
place. Should the Superintendent of Highways determine after a final
inspection of the permitted work that the street, sidewalk or right-of-way
has not been returned to its original condition, he or she will cause
notification of the defective condition to be given to the applicant
either orally or in writing. Upon receiving notification of the defective
condition, the applicant shall have 10 days, or 24 hours if the defect
is determined to be a dangerous defect that may affect the health,
safety or welfare of the public, to remediate the defective condition
and restore the street, sidewalk or right-of-way to its original condition.
Failure to restore the street, sidewalk or right-of-way to its original
condition within the proscribed period will cause the applicant's
deposit to be forfeited and to become the property of the Town of
Ellicott or alternatively to provide the basis for payment demand
of the bond that has been posted as a deposit.
D.Â
The application for an excavation permit must be accompanied by an
insurance certificate of comprehensive general or commercial general
liability insurance policy issued to the permittee by an insurance
company licensed by the State of New York to issue such policy and
naming the Town of Ellicott as an additional insured. Such insurance
shall not be less than a combined single limit for bodily injury and
property damage of $1,000,000 per occurrence. The policy must also
include coverage for potential liability incurred by the permittee
in performing the work covered by the permit. The Town Attorney shall
approve the policy or certificate before any work is commenced.
E.Â
Upon compliance with all of the foregoing requirements, a permit
shall be issued by the Superintendent of Highways of the Town of Ellicott.
Work for which a permit has been issued shall commence within
20 days after the issuance of the permit. Failure to commence the
permitted work or complete the permitted work within the allotted
time period specified by the permit may result in the termination
of the permit by the Superintendent of Highways. The Superintendent
of Highways will give notification of the cancellation to the permittee
by either oral or written notice. Upon cancellation of the permit
the permittee may seek a replacement permit by submitting a new application
for a permit along with the necessary fee and deposit as required
by the terms of this article.
Permits are not transferable, and the permitted work shall only
be performed at locations specifically designated in the permit.
Every permit shall expire at the end of the period of time set
forth in the permit. If the permittee shall be unable to complete
the work within the specified time, he shall, within three business
days prior to the expiration of the permit, present in writing to
the Superintendent of Highways a request for an extension of time,
setting forth therein the reasons for the requested extension. If,
in the opinion of the Superintendent, such extension is necessary
and not contrary to the public interest, the permittee may be granted
additional time for the completion of the work. The extension, if
granted, shall be in writing, signed by the Superintendent of Highways.
A.Â
Authority to issue. The Superintendent of Highways or his designated
representative shall be authorized to issue stop-work orders pursuant
to this section. The stop-work order shall be issued to halt:
(1)Â
Any work for which a permit is required pursuant to this article
which is being performed without the required permit, or under a permit
that has become invalid, has expired, or has been suspended or revoked.
(2)Â
Any work that is being conducted in a dangerous or unsafe manner
in the opinion of the Highway Superintendent, without regard to whether
such work is or is not work for which a permit pursuant to this article
is required, and without regard to whether a permit has or has not
been issued for such work.
Defective work by the permittee or his contractor shall be corrected
at the direction of the Town Highway Superintendent by the Town Highway
Department or by a contractor of the Town Highway Superintendent's
choosing. The permittee shall be liable for the cost of the aforedescribed
remedial work. The permittee shall be liable for repairs under this
section for a period of three years from the original completion date
of the permitted work activity.
Any person making an excavation covered by this article shall
erect a suitable barrier or guard for the protection of persons using
the streets or sidewalks and, in addition thereto, shall set up and
maintain during the hours of darkness sufficient lights or flares
to properly illuminate the area and shall also take all necessary
precautions for the protection of the Town and public service companies
or municipal districts and adjoining property owners and any others
which might be endangered by such excavations or the work incident
thereto and shall comply with all directions given by the Superintendent
of Highways with respect to such barriers, lights, flares and protective
measures. All signs used at night shall be reflectorized with wide-angle,
flattop, reflective sheeting. All devices used both day and night
shall be mounted a minimum of five feet above the crown of the pavement.
Traffic control devices shall be placed at least 100 feet in advance
of obstructions to adequately warn and direct traffic. The Superintendent
of Highways reserves the right to order the correction of any unsafe
condition and the installation of additional signs, lights or other
traffic control devices. Any opening found not to be properly protected
shall immediately be properly protected by the Town and the cost thereof
charged against the cash deposit or bond hereinbefore deposited by
the applicant.
The permittee shall notify the Superintendent of Highways, either
orally or in writing, when the permitted work activity has been completed.
Upon receiving notice of completion of work, the Superintendent of
Highways shall cause an inspection to be made of the completed work.
The Highway Superintendent or his representative shall provide to
the permittee written notification of his approval of the completion
of the permitted work activity. The permittee shall be responsible
for the proper protection of the site until receipt of the notice
of completion issued by the Highway Superintendent.
A.Â
Construction.
(1)Â
The work authorized by this permit shall be performed under the supervision
and to the satisfaction of the Town Highway Superintendent or his
representative.
(2)Â
Proper sheeting and bracing must be installed in trenches where there
is a possibility of caving of the banks.
(3)Â
All permittees shall comply with OSHA and PESH requirements for the
work being performed. No opening shall be permitted until New York
State Code 53 requirements are met.
(4)Â
Trenches in the shoulder of the pavement are to be backfilled with
Type No. 4-2 inch gravel in six-inch lifts mechanically tamping each
lift. The work shall be so carried on that not over 300 linear feet
of trench shall remain open at any time, unless otherwise authorized
by the Superintendent of Highways.
(5)Â
All pavement cuts shall be saw-cut. Any cut within the pavement must
be backfilled with Type No. 4-2 inch gravel in six-inch lifts mechanically
tamping each lift. A minimum base of three inches of Type 3 binder
and 1Â 1/2 inches of Type 7F top coat plant-mixed bituminous macadam
shall be used to return the pavement to proper elevation to match
the existing highway. In the event plant-mixed bituminous macadam
is not available, cut must be filled with three inches ready-mix concrete
to return the pavement to proper elevation to match the existing highway
until such time as plant-mixed bituminous macadam is available.
(6)Â
The roadway is to be returned to its original conditions, including
shoulders, ditches, drains and driveways.
(7)Â
The permittee shall remove any mud and debris from the pavement,
shoulders and ditches immediately.
(8)Â
No Town signs, guideposts or guide railing for traffic control devices
shall be disturbed.
(9)Â
Any ditch work shall be done to the specification of the Highway
Superintendent.
(10)Â
All surplus excavated material and debris shall be cleaned up
and removed from the site of the work upon completion of the work
by the permittee, leaving the site of the work in a neat and orderly
condition.
(11)Â
Driveway and shoulder construction within the highway right-of-way
shall slope to drain away form the edge of the pavement at least 3/4
inch per foot to the ditch line. Headwalls on driveway pipes are not
allowed, and pipes 18 inches or larger must have end sections. Concrete
driveways must include an agreed-upon width strip of bituminous macadam
between concrete and road surface.
(12)Â
Where topsoil, seeded areas or sod are disturbed in the excavating,
the permittee shall restore the ground surfaces to the same conditions.
(13)Â
Manhole covers, frames and other structures placed within the
roadway limits shall be of sufficient weight and strength of a suitable
type and stability approved by the Superintendent of Highways and
shall be set flush with the surface of the pavement.
The Town of Ellicott police are authorized to enforce the provisions
of this article and to issue appearance tickets for any violations
of this article.
A.Â
During the "winter work season," which is hereby defined as November
15 through April 1, road opening permits will be issued only for emergency
work. In the event that an emergency exists and a permit is necessary,
the backfill of all road openings, including shoulder openings, shall
be made in accordance with the procedures given in this section.
B.Â
In shoulders, the final nine inches of material shall be approved
and then thoroughly compacted to the contour of the road and shoulder.
C.Â
For openings in the pavement, a temporary pavement restoration shall
be made by placing two layers of dust-bound crushed stone, each of
a compacted thickness of four inches, on the prepared subgrade, thoroughly
compacting these layers in accordance with the proper procedures for
a base course and then placing a smoothed layer of 4,000-pound concrete
mix, six inches in thickness, on top. No frozen material shall be
placed in the excavation. As early in the spring as weather and ground
conditions permit, sufficient temporary pavement shall be removed
as will allow for its replacement with the normally required pavement.
D.Â
Notwithstanding anything which may appear to the contrary in the
permit application and regulations, the applicant, by accepting the
permit, assumes all responsibility for the safe maintenance of the
subject opening(s) from November 15 through April 1 and further assumes
all liability for damages resulting from or in any way connected with
the subject opening(s) during this period.
A.Â
Any person found guilty of a violation of any provision of this article
shall be punished by a fine of up to $1,000. Any person found guilty
of a second offense of any provision of this article within 18 months
of the date of the first conviction shall be punished by a fine of
not less than $1,000 and not more than $2,500. Any person found guilty
of a third offense of any provision of this article within 18 months
of the date of the second conviction shall be punished by a fine of
not less than $2,500 and not more than $5,000. Any person found guilty
of a fourth or subsequent offense of any provision of this article
within 18 months of the date of the third conviction shall be punished
by a fine of not less than $5,000 and not more than $10,000. The continuation
of an offense against the provisions of the article shall constitute,
for each date the offense is committed, a separate and distinct offense
hereunder.
B.Â
The application of the above penalty shall not be held to prevent
the enforced removal of the prohibited conditions and/or the exercise
of any civil rights or remedies set forth in this article or in any
other provision of law.
