[HISTORY: Adopted by the Town Board of the Town of Lansing
as indicated in article histories. Amendments noted where applicable.]
[Adopted 1-21-2004 by Ord. No. 50]
Ordinance No. 2 and Ordinance No. 19 be and are hereby repealed,
and this article shall take effect immediately.
The purposes of this article are to regulate the placement,
standing and parking of vehicles and other objects upon roads and
highways during snow events and at all times when plowing and snow
and ice removal are necessary so as to protect the public health and
welfare by preventing accidents and effectively removing snow and
ice from public roadways.
The following definitions shall apply to this article:
All, each, and every portion of the right-of-way of all,
each, and every public road, route, and highway located within the
Town of Lansing, including all Town roads and all county and states
routes and highways, and also including, but not limited to, all paved,
finished or driving surfaces, shoulders, ditches and culverts.
Any snowfall that is in progress; or during and 12 hours
after any snowfall that exceeds one inch; or any amount of freezing
rain, whether as sleet, ice, or as rain that freezes upon or after
contact with the ground.
Each and every device in, upon, or by which any person or
property is or may be conveyed, moved, drawn, or transported upon,
through, or across any roadway, including all licensed and unlicensed
vehicles, all registered or unregistered vehicles, and all devices
of conveyance whether operated by human power, a motor, or otherwise.
vehicles shall not be deemed "objects" as used in this article.
No standing or parking is permitted upon any roadway during any snow event. No standing or parking is permitted upon any roadway after any snow event until the completion of Town snow removal operations. Any vehicle found to be in violation of this § 230-4 shall be subject to citation or ticketing and/or removal or immediate towing. Each, any, and all objects, other than vehicles, are subject to the same requirements as vehicles, and any such object that is found to be in violation of this article is subject to removal or immediate towing.
The Town of Lansing Highway Superintendent shall have the power to cause or order the immediate removal of any vehicle or object that is in violation of § 230-4 hereof, and/or obstructs or interferes with the maintenance of any roadway, regardless of whether such vehicle or object is located in or upon the roadway.
[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.
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 $250, or subject to a civil penalty of not more than
$500 be recovered by the Town in a civil action. Each week that any
noncompliance or violation continues is and may be charged as a separate
violation. Notwithstanding any finding of guilt or that a violation
occurred, the penalty or fine may be waived if the court finds that
the violation was unavoidable due to an emergency that prevented the
owner and operator of the vehicle from moving, removing, or towing
such vehicle.
C.
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:
(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 towing or removal of any vehicle pursuant to this article
may be performed by any licensed towing agency, by the Town Highway
Department, or by any company the Town of Lansing may hire or contract
with to provide vehicle (and/or object) removal services. All towing
and storage fees associated with the removal of such vehicle shall
be the sole responsibility of the owner(s) of any such vehicle. The
Town of Lansing shall neither be responsible nor required to: a) locate
or notify any vehicle owner of operator, or the owner of any object,
that any vehicle (or object) has been removed or towed, or b) know,
keep records of, or advise any owner of operator as to the location
of any such towed or removed vehicle or object.
[Adopted 9-19-2012 by L.L. No. 5-2012]
This article shall be known as "Local Law Number 5 of 2012."
Local Law Number 5 of 2012 hereby repeals, updates, and amends Town
of Lansing L.L. No. 2 of 2004 concerning this same subject matter.
Local Law Number 5 of 2012 applies only to Town roads and highways
and intersections within the Town of Lansing, and does not apply to
roadways within the Village of Lansing or to county or state highways.
The Town Board of the Town of Lansing hereby finds and declares that
the provision of safe travel and the maintenance of safe public highways
and roadways are of paramount importance to the public. Further, highways
are costly to build, repair and maintain, and the Town of Lansing
expends substantial resources annually to maintain, repair, preserve
and protect such public highways. Thus, based thereupon, and upon
the authority granted to the Town of Lansing under and pursuant to
Town Law § 64, Highway Law § 136, Articles 39,
40 and 41 of the Vehicle and Traffic Law, and § 10, Subdivisions
1a(6) and 1a(12), of the Municipal Home Rule Law, the Town of Lansing
adopts this article to preserve and protect highways and related rights-of-way,
and to ensure safe travel for all persons travelling there upon.
The following terms used in this article shall have the following
meanings:
Any temporary or permanent structure or construct, other
than a roadway or road surface, within the area of any highway, including
those structures, constructs, and devices located or installed over,
upon, or under any such highway, including, but not limited to, signs,
traffic control devices, waterlines, utility lines, communications
lines, culverts, ditches, drainage ways, manholes, fire hydrants,
curbs, guardrails, bridges, bridge supports and railings, fencing,
and often also including driveways.
The building, installation, repair, or replacement of any
appurtenant structure or the construction or installation of any roadway
or road surface, including the repairs and maintenance thereof.
Any person or entity, including any landowner or private
citizen, that proposes to perform excavation or construction under,
in or upon any highway, or any appurtenant structure related to any
highway.
Any violation of the terms, requirements, or conditions of this
article; or
The violation of any terms or conditions of any permit; or
Performing any work, Construction, or Excavation not referenced
in any application; or
Performing any work, Construction, or Excavation upon any land,
highway, or appurtenant structure not specifically identified in the
Application or the permit issued by the Town of Lansing.
Any work, process, or construction that proposes to or does
alter the surface of any highway, or which affects the soils or any
appurtenant structure of or under any highway, including, but not
limited to, pavement cuts and culvert installations, and also including
road surface work and paving.
Any charge or cost imposed or due under or as a result of
this article. Fees may be updated, changed, or amended from time-to-time
by resolution of the Town Board of the Town of Lansing.
Each, every, and all public streets, public sidewalks, public
roads, public alleys, and public highways within the Town of Lansing
that are Town of Lansing highways by use, highways by dedication,
and/or highways by implication, including the paved or finished surfaces
thereof, all signage, all ditches, culverts, drains and drainage ways,
all utility and similar structures and appurtenances, and all land,
improved or otherwise, within the bounds of the highway rights-of-way.
The elected or appointed Highway Superintendent of the Town
of Lansing, together with the designees of such person who are given
specific written authorization to act for such Highway Superintendent
under this article.
Any permit required under or pursuant to this article.
A cash deposit delivered to the sole custody of the Town of
Lansing to secure and guarantee performance under any permit and compliance
with this article, free of reservations, restrictions, conditions
or claims; or
An unconditional letter of credit approved by the Town of Lansing;
or
A performance, completion, and indemnity bond approved by the
Town of Lansing; or
A Certificate of Deposit irrevocably assigned to the Town of
Lansing in an approved amount; or
Any other form of undertaking as approved by the Town of Lansing;
or
Any combination of the foregoing approved by the Town of Lansing.
No firm, utility company or provider, transportation corporation,
communications or cable company, or other person or entity shall conduct
any construction or make any excavation, cut, or breaking in, or otherwise
open any highway or sidewalk for any purpose whatsoever, including,
but not limited to, the making of any driveway connection or the installation
or repair or replacement of any culvert or other appurtenant structure,
without a permit issued pursuant to the requirements of this article.
No contractor may perform any construction or excavation in, upon,
or under any highway, nor construct, repair, install, or build any
appurtenant structure, without a permit. No contractor or other person
or entity may spread, place, or distribute any substance upon a highway
or within a highway right-of-way unless done pursuant to, and in compliance
with, a permit.
A.
In the case of an emergency any person or entity already having or
possessing rights to any appurtenant structure within any highway
may effect such emergency repairs as are reasonably necessary; but
such person or entity must thereafter apply for a permit upon the
next business day.
B.
This article shall not apply to the installation of mailboxes and
newspaper boxes.
C.
This article shall not apply to excavation, construction, or other
work performed upon, under, or within highways and related rights-of-way
by the Town of Lansing or by Tompkins County, including excavation,
construction, or other work upon appurtenant structures.
Contractors must obtain all appropriate and/or required permits
and approvals from the United States, the State of New York, and the
County of Tompkins, or from their applicable subdivisions, prior to
applying for a permit from the Town of Lansing. All contractors are
required to obtain a permit from the Town of Lansing prior to performing
any construction or excavation in, upon, or under any highway, or
before constructing, repairing, installing, or building any appurtenant
structure. Each permit issued by the Town of Lansing will be valid
only for a stated period of time. Permits are not transferable or
assignable by any act or by operation of law. If the permit expires,
a renewal permit may be issued by the Town of Lansing for an additional
fee (as set by the Town Board) and upon such additional or other terms,
security, or restrictions as determined in the sole discretion of
the Highway Superintendent.
A.
When a common construction or excavation project involves more than
one firm or contractor, including public service companies and transportation
corporations, those contractors shall together designate, in writing,
a lead contractor who shall be responsible for obtaining a permit,
acting in compliance therewith, and for compliance with the terms
and requirements of this article. Despite the existence of a lead
contractor, all such other persons and entitles shall be and be deemed
contractors under and pursuant to this article.
Contractors must submit a completed application for a Town of
Lansing permit upon a form provided and approved by the Highway Superintendent.
The Highway Superintendent may develop and utilize one or more types
of forms for permit applications as based upon any reasonable standard,
such as, but not limited to, the type of work to be performed (e.g.,
"culvert permits" or "driveway or curb cut permits" or "excavation
permits," etc.). All permit applications shall contain the following
information or materials:
A.
Project drawings and specifications for any excavation or construction
as required by the Highway Superintendent, including, where applicable,
surveys and/or plans sealed by a New York State licensed engineer
or architect in compliance with, inter alia, the New York State Education
Law.
B.
An application fee.
C.
If the contractor proposes to do work or perform any excavation or
construction upon or under any land outside of the highway, the written
consent of the owners of each such parcel of land shall be provided,
and such written consent must recite that such owner has reviewed
the proposed excavation or construction drawings and specifications
and consents to, or otherwise permits, such work.
D.
Whenever required, a completed Environmental Assessment Form (EAF)
shall be submitted by the contractor pursuant to the provisions of
the State Environmental Quality Review Act and its implementing regulations
at 6 NYCRR Part 617 (together herein, SEQRA). No permit may be issued
until the SEQRA review process has been completed.
E.
A stormwater analysis of the impacts of any excavation or construction
or installation project upon the highway and its appurtenances. Such
analysis shall follow the requirements of any applicable stormwater
local law or ordinance, and/or shall comply with the terms of the
New York Standards and Specifications for Erosion and Sediment Control
manual, commonly known as the "Blue Book"; and, as applicable, the
State Pollutant Discharge Elimination System (SPDES) General Permit
for Construction Activities GP-02-01 or GP-02-02 (each and all as
now exist or as hereafter codified, updated, changed or amended).
Any information and any stormwater pollution prevention plan (SWPPP)
shall be designed to contain any increases in stormwater and prevent
any erosion of the highway and any appurtenances, as well as prevent
stormwater pollution and sedimentation.
F.
The required amount(s) and type(s) of security.
G.
Construction and excavation start dates and completion dates.
H.
Any other information the Highway Superintendent may require, including,
but not limited to, traffic control plans and proof of a right to
enter any private property.
During the "winter work season," which is hereby defined as
November 15 through April 1, annually, permits will generally be issued
only in the discretion of the Highway Superintendent and generally
only for emergency work. In the event that a winter permit is issued,
the following temporary remediation and other requirements apply:
A.
All highway shoulders shall require additional materials and compaction
as determined by the Highway Superintendent.
B.
Temporary pavement and road surface restorations may be made by:
(1)
The
placement and compaction of a minimum of two layers of dust-bound
crushed stone, each of a compacted thickness of four inches on the
prepared subgrade, followed by a layer of bituminous concrete, winter
mix, six inches in compacted thickness, on top; or
(2)
As
otherwise required by the Highway Superintendent.
C.
No frozen material shall be placed in excavation areas.
D.
Daily inspections shall be required and paid for by the contractor.
Whenever required by the Highway Superintendent, the contractor shall
perform any needed repairs or maintenance within 24 hours of receipt
of any notice requiring the same.
E.
All temporary repairs shall be maintained by the contractor until
a permanent repair is made. The contractor must monitor the site and
perform repairs upon at least 24 hours' advance notice to the
Highway Superintendent.
F.
As early as spring weather permits, the excavation area shall be
inspected at the expense of the contractor and a permanent repair
shall be made by the contractor. Where required, in the reasonable
discretion of the Highway Superintendent, the permanent repair may
require reconstruction of the road base or other reconstruction requirements.
G.
Notwithstanding anything which may appear to the contrary in the
permit or this article, the contractor assumes all responsibility
for the safe maintenance of the subject work site(s) from November
15 through April 1, and further assumes all liability for damages
resulting from, or in any way connected with, the subject work and
work area during this period.
A.
The Highway Superintendent shall review each completed and submitted
application within 30 days. Any application may be rejected if:
(1)
The details, specifications, or drawings are incomplete or lack specificity.
(2)
The proposed project, work, excavation, or construction is or will
be harmful or injurious to any highway as determined by the Highway
Superintendent.
(3)
The application has incomplete or inadequate stormwater controls,
if required, or an inadequate SWPPP.
(4)
The proposed contractor is unable to meet the security requirements
of the project and/or this article.
B.
The Highway Superintendent shall, for each application, determine
and set an amount of security and liability insurance that must be
posted and/or provided by the contractor prior to the issuance of
any permit. The security shall be in such form and amount as determined
by the Highway Superintendent. The insurance shall be procured, paid
for, and provided by the contractor, who shall maintain general all-risk
liability, completed operations, and workers' compensation insurance
coverages, each in the minimum amount of $1,000,000. Each such coverage
or policy shall name the Town of Lansing as an additional insured
and waive any subrogation rights as against the Town of Lansing. For
any construction or excavation that will be performed in phases, that
will require multiple inspections, or that will require the review
of any engineer or other paid consultant (such as, but not exclusively,
to review any SWPPP, surveys, engineering or design plans, etc., if
and as required), the Highway Superintendent may require the establishment
of a fee, inspection, and review escrow account (FIREA) to be funded
periodically by the contractor in amounts deemed reasonable by the
Highway Superintendent to ensure that adequate funds are available
to pay for the costs of such fees, inspections, and reviews. The Town
Board of the Town of Lansing may establish, by resolution, standardized
FIREA schedules for permits and other required reviews, inspections,
and reports created, performed, reviewed, or filed under, in accord
with, or in furtherance of this article, which schedule shall i) be
limited to such amounts as are reasonably estimated as the administrative
and other costs and expenses incurred by the Town of Lansing in connection
with any matter arising under this article, and ii) be reviewed at
least once every year by the Town Board of the Town of Lansing to
ensure that the fees remain reasonable in light of actual and generally
incurred costs and expenses associated with fee, inspection, and review
requirements.
The Highway Superintendent, upon the receipt, review and approval
of any application, shall issue a permit for such work upon such terms
as determined in the reasonable discretion of such Highway Superintendent.
The Highway Superintendent may require that special conditions be
met as deemed necessary, in his or her discretion, in conjunction
with the work, excavation and/or construction to be performed on,
in, or under any highway or appurtenant structure. The Highway Superintendent
may issue a revised or amended permit at any time to correct any error
or omission, to require or reference a change in the scope of work
or the project specifications, to address the encountering of unforeseen
surface or subsurface conditions, including weather, or for any other
reason.
The Highway Superintendent is hereby authorized, directed, and
designated to enforce the provisions of this article.
The contractor may only perform work, construction or excavation
as authorized by the express terms of the permit. In performing such
work, construction or excavation, the contractor shall:
A.
Preserve and protect all roadway surfaces, the highway, and each
appurtenant structure from needless destruction or alteration.
B.
Commence the work, Excavation, and/or Construction, within 20 days
of the date the permit is issued, and there after perform the work,
Excavation, and/or Construction, and all backfilling, tamping, repair,
and restoration work, as one continuous operation to complete the
same by the earliest practical date. In no event shall the work, Construction,
and/or Excavation be completed after the completion date stated in
or required by any permit.
C.
Restore and repair any affected highway and appurtenant structure
to then current requirements.
D.
Maintain at all times safe crossings, barricades, coverings, warning
signs, lighting, and any and all other safety devices, structures,
or procedures as may be required by law or regulation, the New York
State Department of Transportation, OSHA, or in the exercise of diligent
care.
E.
Maintain at all times the security and insurance coverage(s) required,
and to pay, whenever requested, any FIREA deposits.
F.
Perform the work, construction and/or excavation in such a manner
and at such times as to not interfere with, or to minimize, any obstructions
to the safe flow of traffic.
G.
Prevent stormwater pollution arising from any site or other excavation
or construction, including through the proper installation and maintenance
of short-term and permanent stormwater management practices and, as
and if applicable, compliance with any SWPPP and/or any SPDES permit
conditions or requirements.
H.
Perform all backfilling and tamping with materials specified by the
Highway Superintendent, which materials shall be free from clay, loam
or silt, and which materials shall be moistened and mechanically tamped
until thoroughly compacted.
I.
For all construction or excavation work that will impair the provision
of any public utility, water supplies, or effect any closure or partial
closure of any highway, it shall be the duty of every contractor to
give at least 72 hours' advance written notice of the work and
the effect thereof to all persons, entities, or municipalities owning
property or any appurtenant structures within 500 feet of the vicinity
of the proposed work. Proof of due notice shall be filed with the
Highway Superintendent at least 48 hours prior to the commencement
of the proposed work.
J.
The contractor shall provide prior notice to each and all utility
companies, public service companies, and municipalities of the proposed
work, Excavation, or Construction, and to have such company or municipality
mark or otherwise identify the location or course of any underground
or other utilities. No work, Excavation, or Construction shall commence
until all utilities and underground appurtenances are so marked and
the rules and regulations of the New York State Public Service Commission
and the "Dig Safely New York" program have been fully complied with.
K.
All appurtenant structures shall be built, repaired and installed
in accordance with all applicable laws, regulations, and rules, including,
but not limited to the New York State Manual of Uniform Traffic Control
Devices.
L.
The contractor shall preserve, protect, and maintain (including maintenance
of the distribution of) all utilities encountered or affected by or
during performance of any work, excavation or construction.
A.
A permit may be revoked by the Highway Superintendent after notice
to the contractor (or other permittee) for any violation of any condition
of the permit, for the violation or of any provision of, or noncompliance
with, this article, for the violation of any provision of any other
applicable ordinance or law relating to the work, or for the existence
of any condition or the doing of any act constituting or creating
a nuisance or endangering the lives or properties of others. The following
terms and conditions shall apply to the revocation of any permit and/or
the occurrence of any default:
(1)
A contractor may be granted one period of three days from the date
of the notice to correct the violation and to proceed with the diligent
prosecution of the work authorized by the permit before said permit
is revoked. Written notice of any such violation or condition shall
be served upon the contractor or his agent engaged in the work. The
notice shall contain a brief statement of the grounds relied upon
for revoking the permit.
(2)
Notice may be given either by personal delivery thereof or by registered
United States mail addressed to the person notified.
(3)
When a permit has been revoked and the work authorized by the permit
has not been completed, the Highway Superintendent shall cause such
work as may be necessary to be performed to restore the highway to
as good a condition as before the construction or excavation work
was undertaken. Such performance and work may be undertaken by the
Highway Superintendent's employees and staff, or by any independent
contractor hired by the Town of Lansing to perform such work. All
expenses and costs incurred to restore the highway shall be recovered
from any posted security, or if the same is inadequate to cover the
costs and expenses thereof, then from the contractor.
(4)
The failure of any contractor to cure any default or cure any conditions
stated within the above-referenced notice within such three days shall
be a default that shall entitle the Town of Lansing to collect and
utilize any security or FIREA deposit for any purpose related to the
contractor's permit, including, but not limited to, the repair
of any damage, the completion of the project, or the hiring of any
third party to complete the project. No default, nor the completion
of the project by any third party or the Town of Lansing, shall relieve
the contractor of any obligation or expense imposed under this article,
or as may otherwise be imposed by any other law or regulation.
B.
Notwithstanding the foregoing terms, conditions and requirements,
whenever the Highway Superintendent believes that there is any emergency,
the Highway Superintendent may issue a stop-work order. Immediately
upon receipt of the same each contractor shall cease work, secure
the work site, and immediately adhere to and complete all safety inspections
and procedures as may be required by law, regulation, or the terms
of the stop-work order. Work may only re-commence upon the written
revocation of the stop-work order by the Highway Superintendent.
Utility and other facilities commonly occupy areas of highway
rights-of-way, whether allowed by law or pursuant to permission granted
by the State of New York or one of its agencies or municipalities.
Certain uses of the highway are and remain subordinate and subject
to the regulation of the Town of Lansing and the use of highway rights-of-way
by the public. As to highways regulated by this article:
A.
Public, private, municipal and state utility facilities will be permitted
to use and occupy the municipality's highways in accordance with
any franchised right or privilege granted by statute, such as, but
not exclusively, those contained in the New York State Public Service
Law and/or Transportation Corporations Law.
B.
The Town of Lansing reserves and preserves the right to assess, impose
and collect rent or a highway use and occupancy fee from any contractor,
landowner, service provider, or system owner or operator occupying
and using the property or highways of the Town of Lansing for private
or commercial purposes for any period of time exceeding six months.
Such rent or fee, if assessed, shall be calculated by the Highway
Superintendent based upon any rational and neutral standard, including,
but not limited to:
(1)
The
recommendation of the Town Board of the Town of Lansing;
(2)
The
recommendation of the Tompkins County Assessment Office;
(3)
The
amount of rent or fees charged for similar uses by the State of New
York, the New York State Department of Transportation, or any other
or municipality similarly situate to the Town of Lansing;
(4)
The
fair market value for the use or of the property utilized; or
(5)
The
recommendation of an appraiser or other qualified consultant utilized
by the Highway Superintendent or the Town Board of the Town of Lansing.
C.
The Town of Lansing may require such contractor, landowner, service
provider or system owner or operator to enter into an easement and
right-of-way agreement (ERA) or a consent and lease agreement (CLA)
to utilize such public property and permit the objects or facilities
to remain upon municipal land for private or commercial purposes.
The municipality and the contractor, landowner, service provider or
system owner or operator will discuss and attempt to mutually agree
upon the terms and conditions of such ERA or CLA.
D.
To the extent possible the municipality shall impose rent or a highway
use and occupancy fee upon a nondiscriminatory and competitively neutral
basis.
E.
Notwithstanding anything to the contrary in this section, the Town
of Lansing may, but is not required to, negotiate with any contractor,
landowner, service provider or system owner or operator for the in-kind
provision of services or other valuable consideration in lieu of all
or a portion of the amount that would otherwise be required to be
paid. This option of the municipality shall, to the extent practical,
be applied in a nondiscriminatory and competitively neutral manner
with respect to the value received by the municipality.
F.
All payments of rent or highway use and occupancy fees shall be paid
and collected upon a quarterly or calendar year basis, unless otherwise
expressly set forth in such ERA or CLA.
G.
As to all existing utility and other facilities now within the highway,
no rent or highway use and occupancy fees shall be required to paid
and collected unless and until the owner of such facilities seeks
to construct, reconstruct, replace, upgrade, or repair such existing
facilities or otherwise applies for a permit under or as required
by this article. Absent any need for a permit, such facilities may
be allowed to remain within the highway free of rent or highway use
and occupancy fees. Notwithstanding the foregoing clauses, the Town
of Lansing may require the user or owner of any existing facilities
to submit a permit application:
(1)
Whenever the Highway Superintendent reasonably believes that such
facilities need to be constructed, reconstructed, replaced, upgraded,
or repaired so as to avoid interference with the use of the highway
by the Town of Lansing, any other municipality, or the State of New
York, or to protect the safe and unobstructed use of the highway right-of-way
by the public;
(2)
In conjunction with a highway construction or maintenance project
that may require the relocation of any facilities, particularly where
the work to be undertaken in relocating such facilities may interfere
with the free and safe flow of traffic or where the facilities which
are located within a clear zone or deflection zone (as such terms
are defined by NYSDOT); or
(3)
Upon the 10th anniversary of the adoption of this article.
H.
It may not be feasible in all circumstances to strictly comply with the requirements of this § 230-19, and therefore, the Town of Lansing may permit a waiver of, or a deviation from, the standards and requirements of this § 230-19 (including the waiver or partial waiver of any rent or fee) upon making a written determination:
Until the construction or excavation is completed, the Town
of Lansing may conduct and charge for an inspection for each day that
such work is in progress. Inspections shall be made for the sole purpose
of verifying compliance with the permit or for verification that the
materials and processes used will result in a finished job that is
consistent with Town of Lansing specifications. No inspection is made
for the purposes of reviewing, recommending, or verifying safety practices.
Safety compliance and safety inspections are and shall be and remain
the sole responsibility of the contractor. The fee for each such inspection
shall be promptly paid upon request.
After performance and/or completion of any work, construction
or excavation, the highway and each appurtenant structure shall be
repaired and restored in a permanent manner satisfactory to the Highway
Superintendent and/or in accord with permit requirements. To the extent
possible, any repair or restoration must match the original highway
or appurtenant structure in type, color, structure, materials, grade,
and texture, in compliance with then current applicable specifications
there for. Upon completion of the work and after restoration pursuant
to the terms of this article, any remaining amount of any deposit
or security shall be returned or released, as applicable.
Where the Highway Superintendent finds that, due to the special
circumstances of a particular case a waiver of certain requirements
is justified, a waiver of any one or more requirements of this article
may be granted. In all cases, no waiver shall be granted unless the
Highway Superintendent finds and records, in writing, that:
A.
Granting the waiver would be keeping with the intent and spirit of
this article and is in the best interests of the community.
B.
There is no adverse effect upon the highway or any appurtenant structure.
C.
There is no adverse impact upon the ability to safely travel upon
such highway.
D.
There are special circumstances involved in the particular case.
E.
Denying the waiver would result in undue hardship, provided that
such hardship has not been self-imposed.
F.
The waiver so requested or granted represents the minimum necessary
degree of variation from the requirements of this article or the permit.
Any contractor or other person or entity that violates any of
the provisions of this article shall be guilty of a misdemeanor punishable
by a criminal fine between $500 and $2,000, or a sentence of imprisonment
not to exceed 15 days, or both. Each week of continued violation shall
be and be deemed a separate offense. For the purposes of conferring
jurisdiction upon courts and judicial officers, such violation shall
be deemed an unclassified misdemeanor and all provisions of law relating
generally to misdemeanors shall apply. In lieu of the foregoing and
at the election of the Town of Lansing, any violation of this article
shall subject any contractor, person, or other entity or party to
a civil penalty of not less than $100 and not more than $500 for any
first violation, and to a civil penalty of not less than $250 and
not more than $1,000 for any subsequent violations, with such penalties
to be recovered in a civil action in the name of the Town of Lansing.
The application of any sentence or penalty shall not preclude the
enforced removal or prevention of any prohibited conditions or violations
of the permit or this article. Nothing in this article shall prohibit
the Town of Lansing from seeking any other relief as may be provided
for or allowed by law or in equity, or be deemed to effect an election
of remedies by the Town of Lansing. Any fine or penalty provided for
in this article is intended to be in addition to, and not in lieu
of, any rights or remedies the Town of Lansing may have in such circumstances.
Any aggrieved person or entity may appeal any action or determination
of the Highway Superintendent (or any designee) to the Town Board
by filing a written statement setting forth the reasons for such appeal.
Such statement shall be filed within five days of the delivery or
filing of any action or determination from which the appeal is taken,
time being of the essence. Upon receipt of such appeal, the Town Board
shall hold a hearing within 30 days and, after a review of all evidence,
shall affirm, modify, or annul the appealed from action or determination.
The actions and determinations of the Town of Lansing and its
elected officials, employees, and agents shall each be deemed "final
determinations" for purposes of Article 78 of the New York Civil Practice
Laws and Rules (CPLR). Notwithstanding this, standing under said Article
78 of the CPLR shall only be appropriate after the exhaustion of any
administrative appeals as provided for in this article.
The contractor assumes sole responsibility for the work site
and all related or adjacent areas and lands and agrees to assume all
responsibility for any injury or damage that may or does occur as
a result of any excavation or construction and any related work, including,
but not limited to, traffic control, grubbing, paving, clean up, remediation,
or restoration work. The contractor, to the fullest extent permitted
by law, shall indemnify and hold the Town of Lansing harmless from
and against any, each, and all losses, actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims,
and demands whatsoever, in law, admiralty or equity (all together
hereafter, "claims"), including, but not limited to, reimbursement
to the Town of Lansing any amount expended for any and all experts',
consultants', attorneys' and engineering fees and expenses
arising from or in relation to any claim. The Town of Lansing shall
not be liable or responsible for any injury to persons or damage to
property due to any acts or failures to act under or pursuant to any
permit or this article unless it is proven to a reasonable degree
of certainty that such injury or damage was solely caused by a willful
or intentional act of the Town of Lansing.
The provisions of this article shall not diminish or impair
the right of any other governmental agency or body to require that
any act be taken or avoided. No variance, permit, grandfather rights,
law, code, resolution, procedure, or rule pertaining to zoning or
land use shall supersede the requirements of this article. This article
is intended to supplement and augment the requirements of zoning and
land use regulations and rules, as well as the rules of other governmental
bodies and agencies, relating to the preservation and protection of
highways and public rights-of-way, and to ensure their continued safe
operating condition.
If the provisions of any article, section, subsection, paragraph,
subdivision, or clause of this article 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 article.
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 order or judgment shall have been
rendered. Section and other headings are for reference and convenience
only and shall not be deemed or construed to limit or define the requirements
of clauses set forth thereunder.
