In addition to any other power, right or privilege of the Town
Board or the Department as provided in this Part or under New York
State Law, the Department and the Town Board shall have the following
powers, rights, and privileges:
A. The Town Board and the Department reserve the right to enact additional
rules and regulations with respect to the use of Town parks, park
signs, park facilities, and park roads. Any permit hereafter issued
shall be issued subject to the holder thereof conforming to the rules
and regulations then in force and effect. Such amended or additional
rules and regulations, to be effective, shall either be incorporated
into this Part by amendment hereto, or be posted on a sign or bulletin
board within each affected park, either at the entrance(s) thereof
or upon or near any affected park road or park facility. Any violation
of the requirements of such amended or additional rules and regulations
shall be deemed a violation of this Part.
B. The Department and/or the Town Board, or their designee(s), shall
administer and enforce the provisions of this Part, including, but
not limited to, the establishment and collection of fees, the preparation
of permit and variance application forms, the review of permit and
variance applications, the issuance and revocation of permits and
variances, and the promulgation and enforcement of procedures to implement
the provisions of this Part.
C. When the activities, behavior or conduct of any person is determined
to be in violation of this Part, or any rules or regulations promulgated
under the authority of this Part, or when such acts are deemed to
be disruptive to the surrounding neighborhood, or when such activities,
behavior or conduct adversely affect any other person, the Department
and the Town Board, and/or their designee(s), shall have the authority:
(1) To cause such activities, behavior or conduct to cease and be terminated;
or
(2) To expel the perpetrators of such activities; or
(3) Where permitted by law, to arrest and detain such perpetrators; or
(4) To file a complaint against such person for the violation of this
Part.
D. The Department shall designate the authorized swimming areas, and
all other areas to be used or occupied for picnics, outings, and events.
E. The Department shall regulate the use of park facilities and park
roads in order to prevent congestion and preserve the peace.
F. Whenever a threat to public peace, health or safety exists in any
park resulting from any natural or unnatural cause, explosion, accident,
riot, assembly or unlawful assembly, or activity or unlawful activity,
or as may arise from any other cause, the Department may close the
park or any part thereof and/or issue temporary rules and regulations,
for such duration as the Department deems necessary to ensure the
peace, safety and well-being of the public and/or any persons.
Any person may apply for a variance or permit: any person denied
a variance or permit may appeal such denial: any person granted any
variance or permit upon conditions that are believed to be unreasonable,
arbitrary, or capricious, may appeal the conditions thereof, all pursuant
to the provisions set forth below.
A. Variances. A variance from the requirements or provisions of this
Part may be granted by the Department for any just cause or reason.
Any act or activity prohibited solely by this Part shall be lawful
if performed in strict compliance with the terms and conditions of
such variance. The Department may, but is not required to, issue a
variance where i) there are significant practical difficulties or
unnecessary hardships, not created or caused by the applicant, caused
by compliance with the requirements of this Part, or ii) where the
peace, safety, beauty and utility of the parks would be preserved,
and not negatively impacted, by the issuance of, and compliance with
the terms and conditions of, a variance. Variances shall be applied
for upon forms supplied by the Department. The Department may require
a fee for the submission of a variance application and/or for the
issuance of a variance. Once an application is complete, the Department
shall grant, deny, or grant such variance with conditions within 10
days.
B. Permits. When any provision of this Part requires a permit as a condition
to the performance of any act or activity, no such act or activity
shall be implemented or commenced prior to the receipt of such permit
from the Department. Rules and requirements relating to permits, and
their issuance and revocation are as follows:
(1) Once an application is complete, the Department shall grant, deny,
or grant such permit with conditions within 10 days. A permit may
be granted upon such terms and conditions as the Department shall
reasonably impose. A permit shall authorize the permitted acts or
activities only insofar as they are performed in strict accordance
with the terms and conditions of such permit. A permit may be denied
for any reason.
(2) Permits shall be applied for on forms prepared and provided by the
Department, which forms shall require such information as the Department
may deem appropriate for the review and evaluation of the permit application.
(3) The Department may require a fee for the submission of a permit application
and/or for the issuance of a permit.
(4) The Department may require an applicant or existing permittee to
post a bond or other undertaking in an amount sufficient to ensure
full compliance with the terms and conditions of the permit. The decision
of whether to require a bond or other undertaking will be based upon
a review of the following factors:
(a)
The location of the event and such location's vulnerability
to damage;
(b)
Whether the event or any activities associated with the event
present a risk of property damage;
(c)
The number of people expected to be in attendance;
(d)
The type of supplies and equipment to be brought onto the site;
(e)
The number of days the applicant or permittee has or will occupy
the site;
(f)
The season in which the event will take place; and
(g)
Any other factor(s) deemed relevant or material by the Department.
(5) The Department may require the applicant or any existing permittee
to obtain liability insurance for the event, naming the Department
and the Town as an additional insured. The Department may require
the production and delivery of a certificate of insurance evidencing
such coverage. The decision on whether to require insurance will be
based on the following factors:
(a)
Whether the event or any proposed or potential activities present
a risk of personal injury or property damage;
(b)
Whether the special event involves the sale of food or beverages,
and the types of foods and beverages to be served, consumed, or available;
(c)
Whether the special event involves over 100 participants, or
a large number of participants relative to the size of the site;
(d)
Whether the special event involves the use, transportation,
or installation of heavy items or equipment, or the installation of
a stage or other temporary structure;
(e)
Any other factor(s) deemed relevant or material by the Department.
(6) No person shall conduct any activity for which a permit is required
unless:
(a)
Such permit has been issued;
(b)
All terms and conditions of such permit have been or are being
complied with; and
(c)
The permit is kept on hand, at the event, so as to be available
for inspection by the Department and its designees.
(7) Failure to comply with the terms and conditions of any permit shall
be a violation of this Part. If, upon expiration or termination of
a permit, it is determined that any permittee has not complied with
the terms and conditions of the permit, or has violated any law, ordinance,
statute or rule, then the following rules shall apply:
(a)
Any bond provided as security shall be forfeited and retained
by the Town to the extent necessary to remedy or compensate the Town
for the losses or damages caused or sustained by such acts, omissions,
or violations (including incidental and consequential losses and expenses);
and
(b)
The permittee, together with his agents and employees, who violated
such terms and conditions of such permit, or who violated the provisions
of any law, ordinance, statute or rule, shall be jointly and severally
liable for any additional sum necessary to correct or compensate the
Town for such losses and damages; and
(c)
Neither the forfeiture of any security, nor payment or recovery
for such losses or damages, shall in any way relieve the permittee,
and his agents and employees, from civil or criminal liability arising
from the violation of any law, ordinance or rule.
(8) A permit may be canceled at any time, with or without cause, by the
Department, or its duly authorized representative. The issuance of
a permit shall not imply, suggest, guarantee, or ensure that the Department
cannot close or shut down a park, or any park road, park facility,
or other area or facility thereof that becomes hazardous, dangerous,
inappropriate, or unsafe for public use, utilization, or operation
due to violations of law, inclement weather, fire, water, construction,
or other adverse conditions or behaviors.
C. Appeal. Any person aggrieved by the denial of a permit or variance,
the revocation of any permit or variance, or any requirements or limitation
imposed by any permit or variance, may appeal such denial or revocation
to the Review Board in accord with the following procedures and requirements.
(1) Any person seeking to appeal must file a petition for appeal, the
form of which shall be supplied by the Department. Such petition must
concisely state the basis of the appeal, and describe the underlying
denial, revocation, or condition appealed from. Such petition shall
be verified and shall state the ground or grounds upon which the applicant
claims that the determination of the Department was erroneous, arbitrary
or capricious.
(2) Such petition shall be filed with the Town Clerk within 20 days after
notice of:
(a)
Denial of the application; or
(b)
Revocation or suspension of any permit or variance; or
(c)
The granting of any permit or variance with conditions.
(3) Within 20 days of the filing of such appeal with the Town Clerk,
the Review Board shall investigate the matter, and may hold one or
more public or private hearings on the matter. The person who filed
the appeal is entitled to at least 10 days' notice of any hearing
and be present at all such hearings and meetings. Such notice shall
state the name and address of the applicant concerned, the subject
matter of the hearing and the date, place and hour designated therefor,
by mailing a copy thereof to the applicant concerned at the address
shown upon the application of such applicant at least 10 days before
such hearing. Upon any hearing, the applicant involved shall be entitled
to be represented by legal counsel and to present whatever competent
and material testimony or other evidence in his own behalf as may
be relevant to the subject matter of the hearing.
(4) At the hearing, the Review Board shall consider the applicant's
petition and, in its discretion, may receive new or additional evidence
in support or opposition thereof. The Review Board, after such hearing,
may affirm the action of the Department, require the Department to
grant or reinstate the variance or permit, or may take either of such
actions subject to the elimination or addition of such additional
requirements as it deems necessary or desirable relative to any such
permit or variance.
(5) A determination upon the appeal shall be made by the Review Board
within 30 days of the filing of any appeal, unless the applicant and
the Review Board agree otherwise.
(6) No judicial review may be had or filed until the administrative appeal
process outlined in this Part has been completed. If the Review Board
issues its decision and the applicant is still aggrieved, a review
may be had by the applicant pursuant to Article 78 of New York's
Civil Practice Law and Rules.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A. All provisions of New York State law generally applicable to misdemeanors
shall apply to any criminal proceeding brought under this chapter,
and any misdemeanor shall be deemed an unclassified misdemeanor. For
purposes of this chapter, the Town's justice court is hereby
vested and imbued with jurisdiction to issue administrative and other
warrants in compliance with the New York Criminal Procedure Law and
administrative codes of the State of New York, as well as to hear
and adjudicate allegations relating to the criminal or civil violation
of this chapter and thereafter, if appropriate, impose any fine, penalty,
or sanction.
B. First violation. Any person or entity that violates any of the provisions
of this chapter shall be guilty of a criminal violation and subject
to a fine of not more than $500, or subject to a civil penalty of
not more than $1,000 to be recovered by the Town in a civil action.
C. Second violation. Any violation that is found to have occurred within
two years of any prior civil or criminal determination of any other
violation of this chapter shall be deemed a second violation. Any
person or entity that commits any second violation shall be:
(1) Guilty
of an unclassified misdemeanor and subject to a fine not less than
$500 nor more than $2,500 and a period of incarceration not to exceed
120 days; or
(2) Subject
to a civil penalty of not less than $1,000 nor more than $5,000 to
be recovered by the Town in a civil action.
D. Each week that any noncompliance or violation continues is and may
be charged as a separate violation.
E. In addition to any other remedy, a violation of, or noncompliance
with, this chapter may result in the termination, modification, or
revocation of any permits or approvals as issued. In addition, any
person who has been held in violation of this chapter may also be
required to restore the park, the property or land within or adjacent
to the park (including water and lands under water), park facilities,
park roads, and any other improvements to the park, to its undisturbed
pre-violation condition. The Town may provide notice to such violator
to remedy or pay for such restoration, and if such restoration or
reimbursement is not made within 20 days of such notice, the Town
may commence any one or more civil proceedings in the Town's
justice court, or any other court of competent jurisdiction, to recover
its damages and the costs of such restoration, including all consequential
and incidental losses, costs, expenses, and damages, including reasonable
attorneys' and experts' fees.
F. The application or pursuit of any civil or criminal fine, sanction,
or penalty shall not preclude the pursuit of any other lawful remedy
by the Town, including, but not limited to, the right to seek equitable
relief.
(1) Whenever
the Town shall believe from evidence satisfactory to it that there
is a violation of this chapter, the Town may bring an action to enjoin
and restrain the continuation of such violation and in any such action:
(a) Preliminary relief may be granted under Article 63 of the Civil Practice
Law and Rules; and
(b) The Town shall not be required to post any bond or undertaking; and
(c) The Town need not prove that:
[1] There is or will likely be irreparable harm; or
[2] That the Town has no adequate remedy at law.
(2) In
such action, the court may also award any damages or other relief
requested, including declaring the rights and interests of any parties
and imposing any civil penalties. The remedies provided by this chapter
shall not be in lieu of, and shall be in addition to, any other right
or remedy available to the Town, whether sounding in enforcement or
otherwise.
The Town shall not be responsible for loss of, or damage or
theft to cars or boats and their contents, nor loss of, or damage
or theft to any private property. Such loss or damage, whether inside
of buildings or on the grounds of the park, shall be the patron's
responsibility. In no event shall the Town's liability exceed
the sum of $150. Any person parking, docking, or mooring motor vehicles
does so at their own risk and without any liability on the part of
the Town.
The terms, benefits, and provisions of this Part may be amended
from time to time, in the discretion of the Town Board. Publication
of a notice of public hearing pertaining to the amendment of this
Part shall be and be deemed sufficient notice to any affected person
of any amendment(s) hereto.
If the provisions of any article, section, subsection, paragraph,
subdivision, or clause of this Part shall be adjudged invalid by a
court or other tribunal of competent jurisdiction, such order or judgment
shall not affect or invalidate the remainder of any article, section,
subsection, paragraph, subdivision or clause of this Part. Any such
invalidity shall be confined in its operation to the clause, sentence,
paragraph, section or article thereof directly involved in the controversy
in which such judgment shall have been rendered. If any of the requirements
of this Part, or the application thereof to any person or circumstances,
is held invalid, the said requirements shall remain valid and enforceable
as to any other person or other circumstances.