[HISTORY: Adopted by the Town Board of the
Town of Poughkeepsie 11-15-1967 (Part II, Ch. 7, of the 1964 Code). Amendments noted where
applicable.]
This chapter is enacted in recognition of the
fact that blasting operations and the use of explosives in connection
therewith which are taking place in the Town can be dangerous and
constitute a potential public and private nuisance. Said blasting
operations are and have been a source of potential danger to persons
and property, are of a highly volatile nature and are obvious sources
of potential physical harm to residents and others in the Town. The
blasting operations and use of explosives in connection therewith
creates a situation which, if not properly controlled, will make the
Town a less safe and less pleasant place in which to live and to engage
in business and can harm the welfare of the Town as a whole. The intent
of this chapter is to establish procedures for the regulation of blasting
and the use of explosives in blasting operations in the Town of Poughkeepsie.
This chapter shall be known as "An Ordinance
Regulating Blasting and the Use of Explosives in Blasting Operations."
Whenever used in this chapter, the following
terms shall have the meanings indicated:
A location or locations on the particular property where
the blasting will occur. Each detonation will be considered a site.
[Added 3-30-2005 by L.L. No. 2-2005]
The Board of Standards and Appeals of the Department of Labor
of the State of New York.
Any building regularly occupied in whole or in part as a
habitation for human beings, and any church, schoolhouse, railway
station or other building or place where people are accustomed to
live, work or assemble.
The Codes, Rules and Regulations which are promulgated by
the Board of Standards and Appeals of the Department of Labor of the
State of New York.
Gunpowder, powders used for blasting, high explosives, blasting
materials, detonating fuses, detonators and other detonating agents,
smokeless powder and any chemical compound or any mechanical mixture
containing any oxidizing and combustible units or other ingredients
in such proportions, quantities or packing that ignition by fire,
friction, concussion, percussion or detonation of any part thereof
may and is intended to cause an explosion, but shall not include gasoline,
kerosene, naphtha, turpentine, benzine, acetone, ethyl ether and benzol.
Fixed ammunition and primers for small arms, firecrackers, safety
fuses and matches shall not be deemed to be "explosives" when, as
may be determined by the Board in its rules, the individual units
contain any of the above-mentioned articles or substances in such
limited quantity, of such nature and so packed that it is impossible
to produce an explosion of such units to the injury of life, limb
or property.
The Labor Law of the State of New York.
Includes natural person, partnership, association or corporation.
A.
No person shall purchase, own, possess, transport
or use explosives in blasting operations in the Town of Poughkeepsie
outside the limits of any incorporated village therein unless a license
therefor shall have been issued as provided under the Labor Law.
B.
In addition to the aforementioned license, no person
shall blast or use any explosives in blasting operations in the Town
of Poughkeepsie outside the limits of any incorporated village therein
unless a blaster's license therefor shall be issued as hereinafter
provided.
A.
A blaster's license shall be issued by the Town Clerk of the Town of Poughkeepsie upon application on forms prescribed by him or her and upon payment of a fee as provided in Chapter 105, Fees, provided that the applicant shall have complied with the requirements as provided for under the Labor Law and under the codes, rules and regulations and shall, in addition, have furnished evidence in the form of a certificate of insurance issued by an insurance company authorized to do business in the State of New York, in form acceptable to the Town Attorney, guaranteeing that the applicant has in full force and effect at the time of the making of such application a policy of public liability insurance including a specific endorsement covering any and all liabilities arising from blasting operations. Said policy and certificate shall provide for bodily injury coverage in limits of not less than $1,000,000 and for property damage coverage in limits of not less than $1,000,000 and shall further provide that the Town will be held harmless from any and all claims, actions and proceedings which may be brought against it by any person, firm or corporation for injury to person or damage to property resulting from or occasioned by such blasting operations. Such policy shall contain the further provision that it shall not be canceled, terminated, modified or changed by the insurance company issuing it unless at least 10 days' prior written notice of such cancellation, termination, modification or change is sent to the Town by registered mail. The policy shall further provide that the presence of the Town Engineer or any consulting engineer responsible for specific Town projects or their representatives on the site of the operation shall not affect the obligation of the insurer under its said policy. No blaster's license shall be valid unless such insurance coverage shall remain in full force and effect. The certificate of insurance shall indicate that the insurance coverage in question shall be in effect for a minimum of one year from the date of the issuance of the blaster's license.
[Amended 3-27-1996 by L.L. No. 4-1996; 12-18-1996 by L.L. No.
21-1996; 3-30-2005 by L.L. No. 2-2005]
B.
The blaster's license shall be valid for one year
from the date of its issuance, provided that the applicant shall comply
with the requirements contained in this chapter, with the Labor Law
and with said codes, rules and regulations. The permit shall be project/site
specific and applicable only to that project/site.
[Amended 3-30-2005 by L.L. No. 2-2005]
C.
A blaster's permit shall be issued by the Town Engineer
of the Town of Poughkeepsie and filed with the Town Clerk.
[Added 3-30-2005 by L.L. No. 2-2005]
The holder of a blaster's license aforementioned
shall perform blasting operations in accordance with the provisions,
regulations and requirements of the Labor Law and of the codes, rules
and regulations and any and all amendments thereto and, in addition,
shall perform such blasting operations in accordance with recommended
good practices usually employed in the industry.
A.
It shall be unlawful to blast or carry on any blasting
operation during other than daylight hours or at any time on Sunday
except with the approval, in writing, of the Town Engineer or any
consulting engineer responsible for specific Town projects.
B.
Notification requirement.
[Added 12-18-1996 by L.L. No. 21-1996]
(1)
The following Town of Poughkeepsie departments shall
be notified by the applicant at least 48 hours prior to any blasting
operation undertaken pursuant to this provision:
(2)
Failure to comply with this notification requirement
shall be grounds for revocation of the blaster's license. Revocation
of the blaster's license shall be made by the Town Supervisor.
C.
All property owners within 400 feet of the perimeter of the blast site shall be advised of the application by the applicant 72 hours in advance of the application being submitted to the Town. Said applicant shall also notify said property owners 72 hours in advance of the actual blasting, subject to the provisions of § 100-9, Blasting Management Plan. Said measurement shall be from the applicant's property line, and said applicant must submit proof of compliance with this section simultaneously with its application and the actual blasting.
[Added 3-30-2005 by L.L. No. 2-2005]
[Amended 3-30-2005 by L.L. No. 2-2005]
Before firing any blasts, except where the same
is in a tunnel, the material to be blasted shall be covered on the
top and sides with heavy woven material of rope, wire or rubber of
sufficient size, weight and strength to prevent the escape of broken
rock or other material in a manner liable to cause injury or damage
to persons or property unless written permission dispensing with the
same is obtained from the Town Engineer or any consulting engineer
responsible for specific Town projects. The Town Engineer or any consulting
engineer responsible for overseeing the blasting operation shall inspect
the device the blaster will use to contain the blast.
[Added 3-30-2005 by L.L. No. 2-2005[1]]
A.
Property protection. Prior to beginning blasting operations, notices shall be mailed by certified mail to all residential property owners within 400 feet of the proposed project property lines, notifying property owners that blasting will take place and that free pre-blast property surveys may be requested. The notice shall also refer to the alternate expedited claims procedure referred to in Subsection D(10) herein. Property owners must be notified of this opportunity at least four weeks before blasting is anticipated, and property owners will be allowed up to two weeks to respond.
B.
Property owners scheduled for a pre-blast survey will
be contacted individually so that inspection visits may be scheduled
prior to beginning proposed blasting activities. Requests for surveys
which are received after the two-week response period need not be
honored, but will be scheduled, if feasible.
C.
Pre-blast surveys will be conducted by a competent
professional familiar with the business of blasting and will be paid
for by the applicant.
D.
For any properties where pre-blast surveys are requested,
the following protocols will be completed, at a minimum:
(1)
Appointments will be made with individual property
owners during daylight hours so that interior and exterior pre-blast
site conditions may be recorded. During the appointment, claim representatives'
names and phone numbers will be provided in case there is alleged
damage to any properties inspected.
(2)
The contractor will conduct a visual inspection with
the homeowner, which will be videotaped. A copy of the videotaped
inspection will be provided to both the homeowner and the Town Planning
Department. The inspection will identify and note the locations of
any existing structural damage, including but not limited to the following:
(a)
Evidence of foundation or footing settling;
(b)
Evidence of foundation or footing cracks, bends
or stresses;
(c)
Evidence of structural components out of alignment,
including separations or off-sets between footings and other construction;
(d)
Evidence of any water damage in basements, or
documentation of any testimony of chronic water entry into basements
or subfloor areas;
(e)
Evidence of ceiling bulges, cracks, sagging,
including failure of plaster, drywall, or other wall coatings;
(f)
Evidence of doors which do not close properly,
or sags, cracks, or other failure of doorways;
(g)
Evidence of cracking or bulging in walls, including
failure of plaster, drywall or other wall coatings;
(h)
Evidence of settlings, failure, cracking, or
other existing deformation in secondary structures, including porch
additions, greenhouses, garages, basement stairwells, awnings, or
stairways to entry doorways.
(3)
The pre-blast inspector must record all property features
which may, in the opinion of the contractor, be potentially impacted
by blasting.
(5)
Where video documentation and written field notes
are inadequate to describe pre-blast site conditions, these must be
supplemented by actual measurements or still photography.
(6)
Within two weeks of completion of the site visit,
copies of the site video, any still photos, and measurements, and
all field notes must be provided to each property owner and the Town.
This will allow the property owner's possession of the pre-blast record
of site conditions before blasting commences. Copies of all pre-blast
materials will also be retained by the Town Engineer, the applicant
and/or the applicant's engineering consultants.
(7)
A notice of the blasting commencement and projected
completion date for the blasting will be provided by the blasting
contractor to all property owners within 400 feet of the proposed
project property lines within 48 hours of the commencement of the
proposed blasting.
(8)
Within 48 hours after blasting at the proposed project
site is complete, the applicant must notify by certified mail all
property owners within 400 feet of the proposed property lines, and
any other property owners where pre-blast surveys were completed,
that site blasting is complete. Letters sent to property owners must
indicate that blasting is complete, and advise property owners that
any indication of property damage should be reported promptly, at
the discretion of the property owner.
(9)
Within 30 days after the notice of completion of blasting,
any homeowner alleging damage from the proposed blasting must notify
the designated claim representative.
(10)
In addition to any recovery for damages obtainable
by a landowner against either the project developer or under the bond
required by the Town Code provisions for blasting, the project's sponsor
proposes to provide additional and supplemental methods for property
owners adjacent to the site to recover small claims or to permit accelerated
recovery funds not exceeding $50,000 that are cumbersome to pursue
with insurance adjusters and other recovery mechanisms. The applicant
will escrow, with its attorney, or provide a letter of credit to the
Town in the amount of $50,000 times the total number of homes whose
owners have availed themselves of this procedure by submitting to
a pre-blast survey.
(a)
If it is the project sponsor's belief, based
on information obtained from the claim experience associated with
the development of a nearby site, that claims, if any, will be less
than $50,000, and no data exists to support a greater amount, a lesser
amount may be established. A review process would permit an immediate
request by the property owner for compensation for damages not exceeding
that above noted amount. If the project sponsor deems the request
unwarranted, mediation of the dispute through a local mediation agency
would be immediately available. Payments would be made upon either
agreement as to the damages or upon a finding by the constitute any
admission of liability for damage as the insurance policy considerations
preclude the sponsor from engaging in any acts which would limit the
ability of the insurer to separately review the validity of any claims.
(b)
A property owner would have to sign an acknowledgement
that the participation in the accelerated claims recovery is without
prejudice to the rights of either party in the event a further claim
is made that payment shall not either be referred to in any subsequent
claim proceeding nor constitute an admission of liability. In order
to participate in the accelerated claims program, the property owner
must have participated in the pre-blast inspection and video program.
(11)
The Town Engineer may require the use of seismographs
in conjunction with the blasting plan. Seismograph readings should
not exceed one inch per foot.
The provisions of this chapter shall not apply
to any of the following:
A.
Agencies of the United States, including its armed
services.
B.
The State of New York with its political and civil
subdivisions.
C.
Any school district or portion thereof situated in
the Town.
D.
Any district corporation.
E.
Any public benefit corporation.
F.
Police and fire-fighting forces.
G.
Any quarry operating and existing in the Town within
a quarry district, as defined in the 1956 Town of Poughkeepsie Zoning
Ordinance, or which was in operation before the enactment thereof.
[Amended 3-27-1996 by L.L. No. 4-1996; 6-3-2009 by L.L. No.
22-2009]
A.
Any person
violating any of the provisions of this chapter or failing to comply
therewith shall be guilty of a misdemeanor and, upon conviction, shall
be punished by imprisonment for a term of not more than 15 days or
by a fine of not more than $1,000, or both such fine and imprisonment.
Each violation of any provision of this chapter shall be a separate
and distinct offense, and in case of continuing violation, each day
such violation shall be permitted to exist shall constitute a separate
offense.
B.
In addition
to any other remedies set forth herein authorizing the Town to enforce
the provisions of this chapter, establishing penalties, and setting
forth additional remedies, the person charged with the responsibility
to enforce the provisions of this chapter may impose a civil fine
or agree to a civil fine not to exceed $1,000 per day for each day
of the violation. If said civil fine is imposed, then the alleged
violator may appeal to the Town Board.
[Added 3-30-2005 by L.L. No. 2-2005]
The Town Engineer may grant waivers from certain
portions of this chapter. The basis for granting such waivers are
the amount of material to be blasted, site location, methodology of
the blasting, type of excavation, trench, foundation, mining and presplitting.
