Borough of Lewistown, PA Article II Sidewalk, Curb, Curb Cut, Gutter or Surface Water Drain Construction, Excavation or Repair

[Adopted 9-22-1986 by Ord. No. 86-4 (Ch. 21, Part 2, of the 1986 Code); amended in its entirety 10-11-2010 by Ord. No. 2010-4]

§ 212-15 Title.

This article shall be known and may be cited as the Borough "Sidewalk, Curb, Curb Cut, Gutter or Surface Water Drain Construction, Excavation or Repair Ordinance."

§ 212-16 Adoption of regulations and specifications; copies in Building Codes, Property Codes and Zoning Code Department.

A. Pursuant to the authority granted Council by the Borough Code,[1] Council hereby adopts by reference for use in the Borough of Lewistown the sidewalk, curb and curb cut plans and specifications prepared by the Borough staff of the Borough of Lewistown and approved by the Borough Council of the Borough of Lewistown by resolution, as they may be amended and revised from time to time. For the sake of brevity, these plans and specifications are hereinafter referred to as the "Sidewalk and Curb Regulations."

[1] Editor's Note: See 8 Pa.C.S.A. § 101 et seq.

B. Three copies of the Sidewalk and Curb Regulations referred to in Subsection A have been filed and will be filed, if subsequently revised and amended by resolution of the Borough Council of the Borough of Lewistown, in the office of the Building Codes, Property Codes and Zoning Code Department of the Borough. This office is located in the Lewistown Municipal Building. The copies may be examined at the said office, Monday through Friday, except holidays, during the hours from 9:00 a.m. to 12:00 noon and 1:00 p.m. to 4:00 p.m.

§ 212-17 Use and interpretation of certain words and terms; definitions.

A. When not inconsistent with the context of this article or the Sidewalk and Curb Regulations referred to in § 212-16, words and terms used in the present tense include the future tense; words and terms used in the plural number include the singular number and the converse; and the masculine gender includes the feminine gender and the neuter gender.

B. Where the term "base cost to the Borough of the work," or a term of similar import, is used in this article, the term shall mean:[1]

(1) If the work is done by the Borough, the actual cost to the Borough of the equipment, materials and labor involved in the work done by the Borough plus the 10% add-on authorized by § 1805 of the Borough Code, 8 Pa.C.S.A. § 1805, as amended; or

(2) If the work is done for the Borough by an independent contractor retained by the Borough, the contract price paid by the Borough to the contractor plus the 10% add-on authorized by § 1805 of the Borough Code, 8 Pa.C.S.A. § 1805, as amended.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

C. Where a word or term is not defined by Subsection D below or by another section in this article, and is not defined by the Sidewalk and Curb Regulations referred to in § 212-16, the word or term shall have attributed to it its ordinarily accepted meaning or such as the context may require or imply.

D. Unless otherwise expressly stated, or unless the context clearly requires a different meaning, the following words and terms, when used in this article, shall have the meanings next ascribed to them:

ABUTTING PROPERTY or PROPERTY ABUTTING THE WORK

Or terms of similar import, in reference to a Borough street or a non-Borough street — or in reference to any construction, excavation or repair of a sidewalk, curb or curb cut, gutter, or surface water drain within the right-of-way lines of a Borough street or a non-Borough street — means (irrespective of what the reversion rights in a street might be) that: a) a line of the property physically touches a right-of-way line of the street; or b) a line of the property does not physically touch a right-of-way line of the street but is adjacent or contiguous to a right-of-way line of the street, irrespective of where the line of the property may be in relation to the right-of-way line of the street. (See § 101.1 of the Borough Code, 8 Pa.C.S.A. § 101.1, as amended.)[2]

BOROUGH STREET

A street which has been taken over by the Borough and incorporated into the Borough street system or an alley which has been taken over by the Borough and incorporated into the Borough alley system.

DEPARTMENT

The Building Codes, Property Codes and Zoning Code Department of the Borough, or the Department officers.

NON-BOROUGH STREET

A street, road, lane, cul-de-sac, alley or the like which is located within the Borough and which is open for the use of the public, but which has not been taken over by the Borough and incorporated into the Borough street system or Borough alley system. By way of example, a state highway in the Borough is a non-Borough street, as is the type of road in a subdivision development which has not been taken over by the Borough and incorporated into the Borough street system but whose functions are to circulate or move either through traffic or local traffic and to provide the principal means of direct access to abutting properties.

OWNER OF A PROPERTY

Or a term of similar import, means any person who, whether alone or jointly or severally with others:

(1) Actually owns a lot or parcel of real estate (that is, has legal title to or a vested or equitable interest in the real estate, with or without actual or accompanying possession thereof); or

(2) Has charge, care or control of the real estate as agent, attorney, manager, operator, receiver, trustee or the like for the owner or as agent, manager, personal representative, trustee or the like for the estate of the owner.

PERMIT

The permit issued by the Department:

(1) Authorizing the construction, excavation or repair of a sidewalk, curb or curb cut within the right-of-way lines of a Borough street; or

(2) Authorizing the construction, excavation or repair of a sidewalk, curb or curb cut, gutter or surface water drain within the right-of-way lines of a non-Borough street.

PERMITTEE

The contractor who will perform the work which is the subject of a permit, or the owner of the property abutting the work which is the subject of a permit if the owner will perform the work by himself or with his own forces; and, therefore, the person in whose name the permit was issued.

PERSON

Any individual, partnership, firm, association, organization, corporation, government agency, municipal authority, or other entity.

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 212-18 Permit.

A. When a permit is required. Except as provided in § 212-23A, before any person shall construct, excavate or repair any sidewalk, curb or curb cut within the right-of-way lines of a Borough street or any sidewalk, curb or curb cut, gutter or surface water drain within the right-of-way lines of a non-Borough street, he shall first obtain a permit from the Department.

B. Form of application for permit.

(1) The application for a permit shall be in such form, require the disclosure of such information, and be accompanied by such site plans and work drawings as the Department may from time to time prescribe. In all cases, however, the application shall clearly disclose the exact location of the proposed construction, excavation or repair work; shall contain an agreement by the applicant that the construction, excavation or repair work shall be done in accordance with the provisions of this article and the provisions of the Sidewalk and Curb Regulations; and shall contain an agreement by the applicant substantially to the effect that the applicant will save, defend and keep the Borough harmless from and indemnify it against all claims, actions, suits, judgments or the like brought or entered against the Borough – and all damages, losses and expenses (including but not limited to attorneys' fees) suffered or incurred by the Borough – and arising out of or attributable to the construction, excavation or repair work or any matter, cause or thing related thereto (including but not limited to a break, leak, explosion or other accident involving a utility line or appurtenance, or a part thereof, located or to be located in an excavation).

(2) The application for the permit shall be made and signed by the person who will perform the construction, excavation or repair work or by that person's authorized agent.

C. Amendments to an application or a permit.

(1) An amendment to an application for a permit or the accompanying site plans or work drawings, or an application for an amendment to a permit, shall be filed with the Department promptly after the applicant or the permittee becomes aware that an amendment is necessary.

(2) No change in the work for which a permit was issued shall be undertaken until an application for an amendment to the permit has been filed with the Department and approved by the Department.

D. Review of application for permit; disapproval of application or approval of application and issuance of permit.

(1) Within five business days after the date on which an application for a permit was filed with the Department, the Department shall review the application and all accompanying site plans and work drawings which are part of the application and either approve or disapprove the application.

(2) In the case where an application shows or suggests that the proposed work or the purpose of the work involves the type of matter which is within the regulatory jurisdiction of the Borough Manager or Council or is within the regulatory jurisdiction of a government agency or authority other than the Borough, the Department (before approving the application and issuing a permit) shall ensure that:

(a) Any necessary approvals have been granted by the Borough Manager or by Council or any necessary approvals or permits have been or will be obtained by the applicant from the appropriate government agency or authority; or

(b) The nature or scope of the matter is such that no approval is required from the Borough Manager or from Council or such that no approval or permit is required from the government agency or authority.

(3) Disapproval: (a) If the proposed work does not conform to the applicable provisions of this article or the applicable provisions of the Sidewalk and Curb Regulations, or if any necessary approval or permit referred to in Subsection D(2) above has not been obtained or there is no satisfactory assurance that it will be obtained; or (b) if the Department has reason to believe that the proposed work or the purpose of the work could create more of a hazard to the safety or property of users, neighbors or the public than the condition which the work or the purpose of the work is intended to remedy, the Department shall disapprove the application and give the applicant a brief, written explanation setting forth the reasons why the application was disapproved and the manner in which the proposed work or other matter faulted might be corrected in order that the application might be approved.

(4) Approval: (a) If the proposed work conforms to the applicable provisions of this article and the applicable provisions of the Sidewalk and Curb Regulations and if all necessary approvals or permits referred to in Subsection D(2) above have been obtained or there is satisfactory assurance that they will be obtained; and (b) if the case is not one within the scope of Subsection D(3)(b) above, the Department shall approve the application, fix the period of time during which the permit shall be effective, insert that period of time in the body of the permit, and issue the permit, provided the applicant has complied with the conditions precedent set forth in §§ 212-19A and 212-20.

E. Expiration of permit. A permit shall expire and become invalid if the work for which the permit was issued is not started and completed within the permit period fixed by the Department under § 212-18D(4).

F. Revocation of permit. The Department or a Department officer shall have the right to revoke a permit in a case where any false statement or misrepresentation of fact was made in the application or in the site plans or work drawings on which the permit was based; the permittee fails to comply with any of the applicable provisions of this article or any of the applicable provisions of the Sidewalk and Curb Regulations; work has been commenced or done contrary to the disclosures made in the application or in the site plans or work drawings on which the permit was based; or work has been commenced or done contrary to any permit or approval referred to in § 212-18D(2).

G. Appeal to Borough Manager. Any applicant whose application has been disapproved by the Department, or any permittee whose permit has been revoked by the Department or a Department officer, may appeal the action of the Department or the Department officer to the Borough Manager by filing an appeal with the Borough Manager within 15 calendar days after the date on which the action which is the subject of the case was taken by the Department or the Department officer. The Borough Manager shall hear and decide the appeal within 15 calendar days after the date on which the appeal was filed with him.

§ 212-19 Permit fee and related fees.

A. A permit shall not be issued by the Department until the prescribed fees have been paid to the Borough, and an amendment to an application for a permit, or an application for an amendment to a permit, shall not be approved by the Department until any additional fees have been paid.

B. The fees for the Department's review of an application for a permit and review of site plans and work drawings, the fee for a permit, and the fees for inspections under § 212-21A shall be those prescribed by the separate Borough Costs, and Fees Schedule adopted by Council from time to time.[1]

[1] Editor's Note: The current Borough Costs and Fees Schedule is on file in the Borough's offices.

C. The payment of any fee under Subsection A above shall not relieve the applicant or the permittee from the payment of any other fees which may be required under other ordinances, resolutions or regulations of the Borough or under the laws, rules or regulations of another government agency or authority.

§ 212-20 Insurance.

A. Before a permit will be issued by the Department, the contractor who will perform the work, or the owner of the property abutting the work if the owner will perform the work himself or with his own forces, shall furnish the Department with a certificate of insurance evidencing that the contractor or the owner, as the case may be, will have in force [during the permit period fixed by the Department under § 212-18D(4)] a comprehensive general liability insurance policy (or other like protective public liability insurance policy) for not less than the following limits of liability:

	Bodily injury
		Each person each occurrence	$100,000
		All persons each occurrence	$500,000
	Property damage
		Each occurrence	$50,000
	Or, in the alternative, bodily injury and property damage combined
		Each occurrence	$150,000
		Aggregate	$550,000

B. In the case where the owner of the property abutting the work will perform the work himself, a certificate of insurance evidencing that the owner will have a homeowner's policy in force will be accepted by the Department if the coverage period and the limits of liability satisfy the requirements of this § 212-20.

§ 212-21 Work done by permittee; corrective work by Borough.

A. All work which is the subject of a permit (including any work required to be done in order to protect the public from the hazards incident to the work) shall be done by the permittee at the permittee's expense, shall be done by the permittee in accordance with the applicable provisions of this article and the applicable provisions of the Sidewalk and Curb Regulations, and shall be subject to inspection and approval by Department officers or by such other employees of the Borough or other persons as the Borough Manager may designate.

B. Before the permittee undertakes: (a) any excavation work; or (b) any backfilling work in connection with an excavation, the permittee shall first notify the Department as to the time when the permittee will do that particular work.

C. Work done by the permittee shall be done so as not to disturb or damage any boundary markers or other surface monuments. Any damage done by the permittee to a boundary marker or other surface monument shall be promptly reported by the permittee to the Department.

(1) Any excavation work by the permittee, any work done by the permittee in an excavation, and any backfilling by the permittee of an excavation shall be done so as not to interfere with, disturb or damage any utility line or appurtenance which is owned or operated by a person other than the permittee and which is found or encountered in the excavation; and no such line or appurtenance shall be used by the permittee, or removed, displaced, altered, changed or otherwise disturbed by the permittee, without the prior permission of the owner or operator. Any damage done by the permittee to such a line or appurtenance shall be promptly reported by the permittee to the owner or operator.

(2) The permittee shall put back to its original position any subsurface utility locator marker or strip removed by the permittee and shall replace, with a like-for-like replacement, any subsurface utility marker or strip damaged or destroyed by the permittee.

D. If a Department officer determines that any work done by a permittee does not comply with the applicable provisions of this article or the applicable provisions of the Sidewalk and Curb Regulations, and if the permittee fails to correct the work in accordance with the instructions of the Department officer and within the time prescribed by the Department officer, the Department officer, may, in addition to revoking the permit, report the matter to the Borough Manager, and the Borough Manager may direct that the Borough (or an independent contractor retained by the Borough) correct the work. In such a case, the owner of the property abutting the work shall be charged for the work done by or for the Borough, and the charge shall be the base cost to the Borough of the work. If the work which is the subject of a permit is not completed within the permit period, the Borough Manager may direct that the Borough (or an independent contractor retained by the Borough) complete the work. In such a case, the owner of the property abutting the work shall be charged for the work done by or for the Borough, and the charge shall be the base cost to the Borough of the work.

§ 212-22 Work to be approved by Borough Manager or Council.

A. In the case where an application for a permit shows or suggests that any part of the proposed work or the purpose of the work involves the excavation or construction of a curb cut in a curb or sidewalk, the Department shall not approve the work of excavating or constructing the curb cut until the location, nature and purpose of the curb cut have been approved by the Borough Manager if the curb cut is to be 20 feet or less in length or by Council if the curb cut is to be more than 20 feet in length.

B. In the case where an application for a permit shows or suggests that any part of the proposed work or the purpose of the work involves the excavation or construction of a gutter or surface water drain within the right-of-way lines of a non-Borough street, the Department shall not approve the work of excavating or constructing the gutter or surface water drain until the location and nature of the work have been approved by the Borough Manager.

§ 212-23 Emergency excavation work; emergency repairs by Borough.

A. Repair by owner.

(1) If a break, leak, explosion or other accident or emergency involving a utility line or appurtenance located beneath a sidewalk, curb or curb cut occurs (or in the case of a non-Borough street, located beneath a sidewalk, curb or curb cut, gutter or surface water drain) and if, in the opinion of the person who owns the line or appurtenance (or who has care, custody or control of the line or appurtenance), such accident or emergency creates an actual and immediate danger to life, health, safety or property, that person (or a contractor retained by him) may excavate the sidewalk or curb cut (or in the case of a non-Borough street, excavate the sidewalk, curb or curb cut, gutter or surface water drain) to abate the danger without first obtaining a permit from the Department. In such a case, however, the person making the excavation shall:

(a) Immediately notify the Department (or in the absence or unavailability of all the Department officers, notify the Police Department of the Borough) of the location, nature and purpose of the excavation and the degree of the danger or the extent of the emergency; and

(b) Submit an application for a permit to the Department as soon as practicable after the excavation has been made, but in no event later than the next business day after the excavation has been made.

(2) The work in connection with the excavation shall be done in accordance with the applicable provisions of this article and the applicable provisions of the Sidewalk and Curb Regulations; and except for the waiver by the Borough of the requirement that a permit be obtained before the excavation is made, all the administrative and compliance procedures of this article shall be adhered to.

B. If a break, leak, explosion or other accident or emergency involving a utility line or appurtenance located beneath a sidewalk or curb cut occurs (or in the case of a non-Borough street, located beneath a sidewalk, curb or curb cut, gutter or surface water drain) and if, in the opinion of a Department officer, the Borough Manager or the Police Department of the Borough, such accident or emergency creates an actual and immediate danger to life, health, safety or property and if the person who owns the line or appurtenance (or who has care, custody or control of the line or appurtenance) fails to abate the danger after such oral or written notice to do so (from a Department officer, the Borough Manager or the Police Department) as the circumstances or exigency of the particular case permit, the Borough Manager shall direct that the Borough (or an independent contractor retained by the Borough Manager) abate the danger. In such a case, the Borough Manager shall direct that the Borough (or an independent contractor retained by the Borough Manager) abate the danger. In such a case, the person who owns the line or appurtenance (or who has care, custody or control of the line or appurtenance) which was the source of the danger shall be charged for the work done by or for the Borough, and the charge to that person shall be the base cost to the Borough of the work.

C. If a dangerous condition exists in a sidewalk because of the state of the sidewalk and if in the opinion of the Borough Manager such condition creates an actual and immediate danger to the safety of users of the sidewalk, the Borough Manager shall have the power to make emergency repairs to the sidewalk in accordance with the provisions of Section 1806 of the Borough Code, 53 P.S. § 46806, as amended.

§ 212-24 Billing of charges; time of payment; penalty for delinquency; remedies.

A. Any charge imposed upon a person by the Borough under the provisions of this article shall be billed by the Borough within 60 days after the charge was incurred.

B. A bill rendered by the Borough shall be payable at face within 30 days after the date the bill is mailed. If the bill is not paid in full within the 30 days, it shall be delinquent and a penalty of 2% of the face amount of the bill shall be added to the amount unpaid.

C. If a bill, together with the penalty for delinquency, is not paid in full within 35 days after the bill becomes delinquent, the Borough may collect the delinquent bill, together with the penalty for delinquency, by instituting a civil action (formerly known as an action in assumpsit) or by filing a municipal claim as a municipal lien. [See § 1805 of the Borough Code, 8 Pa.C.S.A. § 1805, as amended; and Sections 4 and 7 of the Municipal Claims and Liens Law, 53 P.S. §§ 7107 and 7141, as amended; and § 1202(5) of the Borough Code, 8 Pa.C.S.A. § 1202(5), as amended.][1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 212-25 Responsibility of property owners; Notice and order to repair.

[Amended 12-10-2018 by Ord. No. 2018-7]

A. Every owner of land which 1) abuts a Borough street, or 2) which abuts a state highway in the Borough where sidewalks or curbs are required or permitted by the Pennsylvania Department of Transportation, on which a sidewalk and/or a curb is constructed as of January 1, 2019, shall maintain the sidewalks and curbs on or abutting such land, and keep the same in a good and safe condition and in compliance with the Borough's Sidewalk and Curb Regulations.[1]

[1] Editor's Note: See § 212-16, Adoption of regulations and specifications; copies in Building Codes, Property Codes and Zoning Code Department.

B. Upon written notice and order by the Department, the owner of a property which 1) abuts a Borough street, or 2) which abuts a state highway in the Borough where sidewalks or curbs are required or permitted by the Pennsylvania Department of Transportation, shall construct such sidewalks and curbs within the right-of-way lines of the street or highway and along the property as are directed by the notice and order to be constructed, or shall repair such sidewalks and curbs as are located within the right-of-way lines of the street or highway and along the property and as are directed by the notice and order to be repaired.

C. Upon written notice and order by the Department, the owner of a property which abuts a nonborough street shall construct such sidewalks or curbs, gutters and surface water drains within the right-of-way lines of the street and along the property as are directed by the notice and order to be constructed, or shall repair such sidewalks or curbs, gutters and surface water drains as are located within the right-of-way lines of the street and along the property and as are directed by the notice and order to be repaired.

D. The notice and order shall include:

(1) A description sufficient to identify the property which is the subject of the notice and order;

(2) A description sufficient to identify the sidewalks or curbs, gutters and surface water drains which are to be constructed or repaired;

(3) An order that the owner construct or repair those sidewalks and/or curbs, gutters and surface water drains in accordance with the provisions of the Sidewalk and Curb Regulations within such period of time as the Department determines to be reasonable under all the circumstances and, therefore, as is fixed by the Department in the notice and order;

(4) A warning substantially to the effect that the owner shall not undertake the construction or repair work which is the subject of the notice and order until a permit has been obtained from the Department; and

(5) A warning substantially to the effect that if the owner fails to complete or do the construction or repair work which is the subject of the notice and order within the period of time fixed in the notice and order, the Borough may complete or do the construction or repair work at the owner's expense and bill the owner for the base cost to the Borough of the work and, if the bill is not paid in full within the time periods set forth in § 212-24, add a penalty for delinquency and collect the bill by a civil action (formerly known as an action in assumpsit) or by a municipal claim filed as a municipal lien.

E. Service of notice and order. The notice and order to the owner shall be served upon the owner in the manner prescribed by § 110-9A(1)(a), (e), (f) or (g), B and C of Chapter 110, Article I, Building, Plumbing, Electrical and Property Maintenance Codes, of the Code of the Borough.

§ 212-26 Disclaimer of municipal liability.

A. The issuance of a permit under § 212-18 or the waiver under § 212-23A of the requirement that a permit be obtained shall not impose any liability upon the Department, a Department officer, any inspector designated or selected by the Borough Manager under § 212-21, or the Borough, or upon any other officer, official, staff member, employee or consultant of the Borough, for any injury or damage suffered or incurred by any person in connection with or arising out of: any work done or not done under a permit or any work done under § 212-23A without a permit.

B. If the Department or a Department officer, or any inspector designated or selected by the Borough Manager under § 212-21, acted in good faith and without malice, any act or omission by the Department, the Department officer or the inspector in the performance of its or his duties or in carrying out its or his responsibilities or in exercising its or his powers shall not impose any liability upon the Department, the Department officer, the inspector or the Borough – or upon any other officer, official, staff member, employee or consultant of the Borough – for any injury or damage suffered or incurred by any person in connection with or arising out of the act or omission.

§ 212-27 Violations and penalties.

A. Any person who violates any provision of this article or any provision of the Sidewalk and Curb Regulations, or who fails to carry out or comply with an instruction or order of the Department, a Department officer or the Borough Manager, shall, upon conviction of the offense, be sentenced to pay a fine of not more than $600 and the costs of prosecution and, upon failure to pay such fine and costs, to imprisonment for not more than 30 days. For the purposes of the imposition of the fine and costs prescribed by this § 212-27A, the word "person," when applied to partnerships, limited liability partnerships, firms or associations, shall mean the partners or members thereof; when applied to organizations or corporations, the officers thereof; and when applied to other entities, the officers, officials or other individuals responsible for managing the business or affairs of the entity.

B. Each day that an instruction or order of the Department, a Department officer or the Borough Manager is not complied with shall be deemed to constitute a new or separate offense under Subsection A of this section and subject in all respects to the same penalty as is provided in Subsection A, and a separate prosecution may be instituted and a separate fine imposed for each offense committed after the first offense.

C. The imposition of a penalty under this § 212-27 shall not preclude the Borough from instituting an appropriate action or proceeding to prevent, restrain, correct or abate a violation or any act, conduct, use, condition or work which is not permitted by this article or the Sidewalk and Curb Regulations.