Town/Village of Mount Kisco, NY Newsracks

The uncontrolled placement and 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.

(2)

Unsightly newsracks and newsracks located so as to cause an inconvenience or danger to persons using public rights-of-way constitute public nuisances.

(3)

These factors constitute an unreasonable interference with and obstruction of the use of public rights-of-way, are injurious to health and offensive to the senses and constitute such an obstruction of the free use of property as to interfere with the comfortable enjoyment of life and property by the entire community.

(4)

The Board of Trustees 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 Board of Trustees 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 village 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:

(1)

Provide for pedestrian and driving safety and convenience.

(2)

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.

(3)

Provide reasonable access for the use and maintenance of sidewalks, poles, posts, traffic signs, hydrants and similar appurtenances.

(4)

Reduce visual blight on the public rights-of-way, protect the aesthetics and value of surrounding properties.

(5)

Reduce exposure of the village to personal injury or property damage claims and litigation.

(6)

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.

§ 76-2 Definitions.

As used in this chapter, unless the context otherwise clearly indicates:

BLOCK

One side of the street between two consecutive intersecting streets.

BUILDING INSPECTOR

Refers to the Building Inspector of the Village/Town of Mount Kisco or the designee of the Building Inspector.

DISTRIBUTOR

The person responsible for placing and maintaining a newsrack in a public right-of-way.

NEWSRACK

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.

PERSON

Any person or persons or entity, including, but not limited to, a corporation, partnership, unincorporated association or joint venture.

RIGHT-OF-WAY

The area between property lines which may be unimproved or surfaced and which may include public highways, streets, roadways and sidewalks.

ROADWAY

That portion of a street improved, designed or ordinarily used for vehicular travel.

SIDEWALK

Any surface provided for the exclusive use of pedestrians.

STREET

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.

§ 76-3 Permit required.

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 village, any newsrack, without first having obtained a permit from the Building Inspector 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.

§ 76-4 Application for permit; fee.

Application for such permit shall be made, in writing, to the Building Inspector upon such form as shall be provided by him or her and shall contain the name and address of the applicant, the proposed specific location of each newsrack and shall be signed by the applicant.

From the above application information, the Building Inspector shall approve or disapprove the locations. In any case where the Building Inspector disapproves of a particular location, such disapproval shall be without prejudice to the applicant designating a different location.

The Building Inspector 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 shall be issued within 30 days after the application has been filed.

A permit fee in an amount established by the Board of Trustees shall accompany each application.

§ 76-5 Conditions and duration of permit.

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 observance of the provisions of this chapter.

Such permits shall be valid for three years and shall be renewable pursuant to the procedure for original applications and upon payment of the permit fee.

Newsrack permits shall not be assignable.

If a newsrack is replaced by a new or different newsrack, the Building Inspector must be notified in writing, within five days of replacement, of the exact location of the replacement newsrack.

§ 76-6 Indemnification.

As a condition of approval of any newsrack permit, the distributor shall file a written statement with the Building Inspector, in a form satisfactory to the Village Attorney, by which the owner agrees to indemnify, hold harmless and defend the village, 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 village.

§ 76-7 Insurance.

As a condition of approval of any newsrack permit, the distributor shall file with the Building Inspector a certificate of insurance, demonstrating that the distributor has public liability and property damage insurance with personal injury limits of at least $2,000,000 liability to any one person and $2,000,000 for any one incident; and property damage limits of at least $2,000,000 for any one incident. The insurance policy must name the Village/Town of Mount Kisco 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 Village Building Inspector.

§ 76-8 Location, placement and number of newsracks.

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 group of newsracks shall extend for a distance of more than eight feet along a curb, and a space of not less than three feet shall separate each group of newsracks.

No newsrack shall be placed, installed or maintained:

(1)

Within five feet of a marked crosswalk.

(2)

Within 10 feet of a street corner without a marked crosswalk.

(3)

Within 15 feet of a fire hydrant.

(4)

Within five feet of a fire call box or police call box.

(5)

Within five feet of a driveway or alley.

(6)

In a place that reduces the clear space for the passageway of pedestrians to less than four feet.

(7)

On any access ramp for disabled persons.

(8)

When such newsrack unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including parked or stopped vehicles, and the ingress to or egress from any residence or place of business.

(9)

When such installation, use or maintenance endangers the safety of persons or property.

No more than four newsracks shall be located on any public right-of-way within a space of 200 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.

§ 76-9 Standards for maintenance and installation.

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 a tree, stop sign or other traffic sign or control device.

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:

(1)

It is reasonably free of dirt and grease.

(2)

It is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas.

(3)

It is reasonably free of rust and corrosion in the visible unpainted metal areas.

(4)

The clear plastic or glass parts, if any, through which the publications are viewed are unbroken and reasonably free of cracks, dents, blemishes and discoloration.

(5)

The paper or cardboard parts or inserts are reasonably free of tears, peeling or fading.

(6)

The structural parts are not broken or unduly misshapen.

(7)

It is reasonably free of graffiti.

§ 76-10 Violations; removal; inspection fees.

Upon determination by the Building Inspector that a newsrack has been installed, used or maintained in violation of this chapter, the Building Inspector shall issue an order to the distributor of the newsrack to correct the offending condition. Such order shall be telephoned to the distributor and confirmed by mailing a copy of the order by certified mail, return receipt requested. The order shall specifically describe the offending condition, suggest actions necessary to correct the condition and inform the distributor of the right to appeal. Failure to properly correct the offending condition within five days (excluding Saturday, Sunday and legal holidays) after the mailing date of the order or to appeal the order within three 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 village's cost and expense of impounding, shall be assessed against each newsrack summarily removed. The Building Inspector 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 Board of Trustees. This fee shall be in addition to all other fees and charges required under this chapter.

§ 76-11 Appeals.

Any person aggrieved by a finding, determination, notice, order or action taken under this chapter may appeal to the Village Manager. An appeal must be perfected within 14 days after receipt of notice of any protested decision or action, by filing with the Manager a letter of appeal briefly stating the basis for the appeal. A hearing shall be held on a date not more than 30 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 Village Manager 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 Building Inspector should not be upheld. At the conclusion of the hearing, the Village Manager shall make a final decision. The decision shall be immediately appealable to a court of competent jurisdiction.

§ 76-12 Abandonment.

In the event that a newsrack remains empty for a period of 45 continuous days, the same shall be deemed abandoned and may be treated in the manner provided in § 76-10 for newsracks in violation of this chapter.

§ 76-13 Emergencies.

Nothing contained in this chapter shall be interpreted to limit or impair the exercise by the village of its police power, in the event of an emergency, as determined by the Building Inspector, to remove any newsrack that presents a danger of imminent personal injury or property damage to users of the village rights-of-way or would otherwise hamper or impair the fulfillment by the village of its governmental obligations, including, but not limited to, snow removal and street cleaning.