[HISTORY: Adopted by the Town Board of the Town of East Bloomfield as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-4-1977 by L.L. No. 1-1977]
No civil action shall be maintained against the town or Town Superintendent of Highways for damages or injuries to person or property sustained by reason of any highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition of such highway, bridge or culvert 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; but no such action shall be maintained for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any highway, bridge or culvert, unless written notice thereof, specifying the particular place, was actually given to the Town Clerk or Town Superintendent of Highways and there was a failure or neglect to cause such snow or ice to be removed or to make the place otherwise reasonably safe within a reasonable time after the receipt of such notice.
[Amended 7-14-1997 by L.L. No. 1-1997]
The Town Superintendent of Highways shall transmit, in writing, to the Town Clerk within five days after the receipt thereof all written notices received by him pursuant to this article and Subdivision 2 of § 65-a of the Town Law. The Town Clerk shall cause all written notices received by him or her pursuant to this article and Subdivision 2 of § 65-a of the Town Law, to be presented to the Town Board within 10 days of the receipt thereof or at the next succeeding town board meeting whichever shall be sooner.
[Added 7-14-1997 by L.L. No. 1-1997]
The Town Clerk shall keep an indexed record, in a separate book, of all written notices which he shall receive of the existence of a defective, unsafe, dangerous or obstructed condition in or upon or of an accumulation of ice or snow upon any town highway, bridge, culvert or sidewalk, which record shall state the date of receipt of the notice, the nature and location of the condition stated to exist and the name and address of the person from whom the notice is received. All such written notices shall be indexed according to the location of the alleged defective, unsafe, dangerous or obstructed condition or the location of accumulated snow or ice. The record of each notice shall be preserved for a period of five years after the date it was received.
[Adopted 12-14-2015 by L.L. No. 3-2015]
This article may be cited as the "Town of East Bloomfield Road Preservation Law."
The purpose of this article 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 article 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 use of heavy equipment with heavy loads.
The Town Board of the Town of East Bloomfield enacts this article under the authority granted by § 10 of the New York State Municipal Home Rule Law and the New York State Town Law.
The Town Board delegates to the Highway Superintendent (herein called "Highway Superintendent") the oversight of assuring commercial activities do not have an adverse impact on public roads and property.
As used in this article, the following terms shall have the meanings indicated:
- A commercial bond to ensure that the condition of the Town roads and/or property impacted by high-frequency, high-impact 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.
- Money put into the custody of a third party for delivery to a grantee only after the fulfillment of the conditions specified.
- FINAL BOND RELEASE
- Final release of the bond by the Town Board.
- HIGH-FREQUENCY TRUCK TRAFFIC
- Traffic to and from a project site that generates more than 10 truck trips per day for more than three consecutive days, involving trucks that exceed 20 tons (truck and load combined) that could impact Town roads and/or property (not including the operation of year-round, permanent facilities, such as commercial quarries).
- HIGH-IMPACT TRUCK TRAFFIC
- Other truck traffic of considerable weight (e.g., total weight exceeding 30 tons) and/or size (e.g., trucks requiring escort vehicles) as determined by the Highway Superintendent that could impact Town roads and/or property. Any seismic testing by vibroseis trucks (aka "thumper trucks") is considered high-impact truck traffic.
- Includes the holder of a road preservation vehicle permit, its contractors, subcontractors, employees and agents, issued pursuant to this article.
- PRELIMINARY BOND RELEASE
- A bond release given by the Highway Superintendent based on satisfactory road conditions at project completion.
- PROJECT SITE
- An area where construction work is performed on a short-term basis (i.e., not including year-round, permanent businesses such as commercial quarries). Construction work includes any of the following:
- A. Excavation, including the removal of soil or gravel for off-site use or excavation or the filling of trenches, ditches, shafts, wells, tunnels and pier holes, and the use of caissons and cofferdams.
- B. Building, including the construction (including the manufacturing of prefabricated elements of a building at the place of work concerned), alteration, renovation, repair, maintenance and demolition of all types of buildings.
- C. Civil engineering, including the construction, structural alteration, repair, maintenance and demolition of, for example, airports, dams, river and landslide defense works, roads and highways, railways, bridges and tunnels, viaducts, and works related to the provision of services such as communications, drainage, sewerage, water and energy supplies.
- Includes any real property (including any improvements therein, thereon or thereunder) in or personal property owned by, or leased to, the Town of East Bloomfield.
- Includes any highway, road, street, avenue, boulevard, parkway, shoulder, guardrail, concourse, driveway, easement, right-of-way, bridge, culvert, sluice pipe, ditch, dock, tunnel, sidewalk or any utilizes or improvements therein, thereon, or thereunder.
- ROAD PRESERVATION LOCAL LAW WORKSHEET (APPENDIX A)
- A worksheet to be completed by 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 Highway Superintendent deems necessary.
Editor's Note: Appendix A is included as an attachment to this chapter.
The Highway Superintendent is hereby designated as the authority to receive and approve applications for a road preservation vehicle permit to use, park, operate, transport, or move high-frequency truck traffic and/or high-impact truck traffic, as defined above, on, over or across a designated Town road or other Town property. The Highway Superintendent must submit a copy of the road preservation vehicle permit to the Town Code Enforcement Officer (herein called "Code Enforcement Officer").
The Highway Superintendent is hereby authorized to consult with others (i.e., County Department of Public Works) and/or hire, in compliance with Town local laws and procurement policies, any engineer, consultant and/or expert which the Highway Superintendent deems necessary to assist in reviewing and evaluating any application hereunder for a road preservation vehicle permit.
The Highway Superintendent is hereby authorized to promulgate i) an application form requesting the issuance of a road preservation vehicle permit; said application shall require the person requesting the permit to provide at time of initial application and continuing thereafter a proposed road map that the high-frequency truck traffic and/or high-impact truck traffic will travel on, a video or photographic documentation demonstrating the condition of the proposed road and/or property described in the permit, and any other documents, maps, sketches, and plans which the Highway Superintendent may require; ii) money in escrow, a highway permit bond, maintenance bond, or comparable blanket bond and the amount shall be determined by the Town Board and will be listed on the fee schedule on file with the Town Clerk; the amount of the bond or money in escrow may be changed by the Town Board by Resolution; iii) a completed road Preservation Local Law (RPLL) worksheet (Appendix A), available from the Town Clerk or Highway Superintendent. All materials must be submitted to the Highway Superintendent.
The Highway Superintendent will decide if the scope of work is such that a bond or money in escrow is required. If no bond or money in escrow is needed, the RPLL worksheet is approved by the Highway Superintendent and becomes the work permit.
Upon issuance of the work permit and prior to commencement of the work, 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.
If the Highway Superintendent determines that a bond is required, the bond must be paid to the Town of East Bloomfield and remitted to the Town Supervisor. At such time, if ever, that said highway permit bond, maintenance bond, comparable blanket bond is expended, the permittee shall replace the same within five days of the receipt of written notice from the Town, failing which the road preservation vehicle permit shall be subject to revocation. The worksheet will then be approved by the Highway Superintendent and becomes the work permit.
If the Highway Superintendent determines that a source of funds is needed to promptly reimburse the Town for any reasonable costs and expenses incurred by the Town in processing an application for a road preservation vehicle permit and/or seeking reimbursement for damages, injuries, discharges or spills involving Town roads or other Town property, the applicant for a road preservation vehicle permit may be required by the Highway Superintendent to file with the Town Clerk of the Town of East Bloomfield an initial cash deposit in an amount not to exceed the sum of $5,000.
As used in this section, the term "costs and expenses" shall be determined to include the reasonable fees charged by engineers consultants and/or experts hired in accordance with the provisions of § 115-9 of this article; 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 article or under applicable provisions of law, as against any permittee, any person who has violated this article, 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.
These funds may be required to accompany the filing of the application, and the Town shall maintain a separate escrow account of all such funds.
The Town is hereby authorized to withdraw funds from said escrow account (without prior notice to or consent from the permittee) in order to promptly reimburse the Town for any costs and expenses (as defined herein).
Immediately following any such withdrawals, the Town shall give written notice to the permittee detailing such withdrawals and the reasons therefor.
If, at any time during the period when the road preservation vehicle permit is in effect, this escrow account has a balance less than 1/2 of its initial deposit, the permittee shall immediately, upon notification from the Town, replenish said escrow account so that it has a balance equal to its initial deposit.
In the event that there is any balance remaining in the escrow account as of the date that the Highway Superintendent determines the road preservation vehicle permit has expired and further determines that no damages or injuries have been caused to 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.
Upon completion of the project, the permittee will apply to the Highway Superintendent for a preliminary bond release. Upon inspection of the worksite, as necessary, the Highway Superintendent may approve the release of the bond. If the release is not approved, the Superintendent will specifically document the tasks that must be accomplished in order for the bond to be released. In this case the permittee will remedy the specified problem(s) items and then reapply for a bond release. Final bond release must be approved by the Town Board for repayment of the bond funds.
The Highway Superintendent and the Code Enforcement Officer shall each have the right and authority to issue stop work orders to those operating violations of the terms of the road preservation vehicle permit, in violation of this article, in violation of applicable provisions of law, or in violation of any conditions or requirements set forth in any permit issued by the New York State Department of Environmental Conservation, or contrary to the conditions upon which its road preservation vehicle permit was issued.
Upon violation of any provisions of the road preservation vehicle permit or violation of any provisions of this article, the Highway Superintendent may suspend any such permit until there is remedy of the violation in the allocated time period set by the Highway Superintendent. Following a public hearing at which time the permittee shall have the right to appear and be heard, the Town Board may permanently revoke any road preservation vehicle permit on written notice to the permittee.
In no event shall the permittee allow vehicles or equipment to be parked or located outside the roadway boundaries or block access to neighboring landowners.
Traffic will be maintained in accordance with all applicable local, state and federal laws, rules and regulations.
The permittee shall supply proof of insurance co-naming the Town of East Bloomfield within a minimum of $3 million liability insurance coverage, the Town shall be notified 30 days prior by the insurance company of determination of such coverage.
The permittee shall be responsible for any and all repairs of damages caused by its operation to any Town property.
This article applies to the entire duration of any project that induces high-frequency truck traffic and/or high-impact truck traffic, as defined above.
The road preservation vehicle permit shall not be assigned, conveyed, pledged or transferred without the express prior written consent of the Highway Superintendent.
The Highway Superintendent shall be given one week's written notice in advance by said permittee of the date when the permittee intends to begin the activity authorized by the road preservation vehicle permit and shall be given prompt written notice of its completion.
The road preservation vehicle permit shall not authorize the holder thereof to exceed the maximum gross weight limit authorized for crossing any bridge. The Highway Superintendent shall have the authority to reasonably alter the proposed roads and other property set forth in the application before a permit is issued or after a permit is issued.
The Town of East Bloomfield makes no warranties or representations as to the conditions or fitness of any road or other property, or their fitness for any intended use, or the Town's rights, titles or interests therein or thereto.
The following vehicles are deemed critical to providing public services and preserving and protecting the health, safety, and welfare of the residents of the Town and are therefore exempt from the permitting process:
Maintenance, repair and service vehicles owned and operate by the Town of East Bloomfield or municipal corporations located in the County of Ontario and an official county or municipal business;
Maintenance, repair and service vehicles owned and operated by a utility company or authority and on official utility business; and
Emergency vehicles and vehicles owned by New York or municipal corporations of New York.
Nothing contained in this article 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.
If any of these conditions are not met, the permit is automatically voided and all work shall cease.
A nonrefundable processing fee as depicted in the Town of East Bloomfield Fee Schedule, payable to the Town of East Bloomfield, must accompany each worksheet submitted to the Highway Superintendent.
Request for a waiver from the standards set forth in this article shall be made to the 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 as stated in § 115-7 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:
Granting the waiver would be keeping the intent and spirit of this article and is in the best interests of the community.
There are special circumstances involved in the particular case.
Denying the waiver would result in undue hardship to the applicant, provided that such hardship has not been self-imposed.
The waiver is the minimum necessary to accomplish the purpose.
Any person who violates any provision of this article 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.
In addition to those penalties prescribed herein, any person who violates any provision of this article shall be liable for a civil penalty in an amount not to exceed $5,000 for each day or part thereof during which such violation continues. The civil penalties provided by this subsection shall be recoverable in an action instituted in the name of the Town.
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.
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 article. In particular, but not by way of limitation, where there is a violation of this article, an 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.
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 article. 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.