[Adopted 3-28-1987; amended 6-12-2004]
This article shall be known as and may be cited as the "Kennebunkport
Street Opening Ordinance" and will be referred to herein as "this
article."
This article is adopted pursuant to 23 M.R.S.A. §§ 3351
through 3360-A, 35-A M.R.S.A. §§ 2507 through 2512,
30-A M.R.S.A. § 3001 and the Home Rule provisions of the
Maine Constitution.
Where there is conflict between this article and any other federal,
state or local rule, regulation, ordinance or statute, the more restrictive
provision shall control. Compliance with this article does not relieve
any person, firm or corporation from complying with the notification
provision of 23 M.R.S.A. § 3360-A or with the provisions
of any other state law.
The invalidity of any section or provision of this article shall
not affect the validity of any other section or provision of this
article.
As used in this article, the following terms shall have the
meanings indicated:
Immediate excavation necessary to prevent injury, death or
loss of an existing vital service.
Any operation in which earth, rock or other material on or
below the ground is moved or otherwise displaced, by means of hand
digging, power tools, power equipment or explosives, and including
grading, trenching and digging.[1]
Any street that has been newly constructed, reconstructed
or repaved within the last five years.
[Added 11-3-2020]
The Board of Selectmen of the Town.
Any street, road, alley or other public way in the Town except
state, state aid or federal aid highways.
The Town of Kennebunkport, Maine.
Any item of personal property buried or placed below ground
for use in connection with the storage or conveyance of water, sewage,
electronic, telephonic or telegraphic communications, electric energy,
oil, gas or other substances, and including but not limited to pipes,
sewers, culverts, conduits, cables, valves, lines, wires, manholes,
attachments, appurtenances and those parts of poles below-ground.
[1]
Editor's Note: The former definition of "Highway Director,"
which immediately followed this definition, was repealed 11-3-2020.
[Amended 11-7-2023]
No person, firm or corporation, including utility companies,
may make any excavation for the construction, repair or replacement
of any underground facility in any street, sidewalk or public parking
lot without having first obtained a permit as herein required. Every
permit granted shall specify the time during which the excavation
may remain open, the place where the excavation may be made, and the
approximate number of square yards that may be disturbed. This section
shall not apply to the State of Maine for work performed within the
state right-of-way.
Notwithstanding the provisions of § 147-14, emergency excavation for the construction, repair or maintenance of an underground facility in any street, sidewalk or public parking lot may be undertaken, provided that a permit is applied for on the first working day after such excavation is commenced.
A.
Permit applications may be obtained at the Town office.
B.
The permit application shall be completed by the owner of the property
to be benefited by the work which necessitates the permit or by the
owner's authorized representative. Where the excavation is undertaken
by a utility company on its own behalf, the application shall be completed
by such company.
C.
A completed application, together with an application fee as set by the Selectboard, shall be submitted to the Director of Public Works. The party applying for a permit must also file a map or sketch with the Director of Public Works, showing the location and size of any cuts to be made. The Director of Public Works, applying the standards of this article, may approve, approve with conditions, or deny the application, for any streets that are not under a five-year moratorium pursuant to § 147-21. Any applications for street openings within a moratorium period will be forwarded to the Selectboard for disposition.
[Amended 11-3-2020; 11-7-2023]
A.
No such permit shall be issued unless and until the permittee has
filed with the Town Clerk a performance bond in accordance with the
following schedule:
[Amended 11-7-2023]
B.
Such bond shall have as surety a corporation licensed to do business
in the State of Maine as a surety company, and shall extend for a
term of at least two years after completion of the project. An equivalent
amount of cash or certified funds payable to the Town may be deposited
for the same purpose in lieu of the surety bond required by this section.
C.
The Selectboard may, in its discretion, require surety in an amount
greater than as set forth in the preceding schedule, as recommended
by the Public Works Director based on scope of work, where they determine
that the project, because of its nature, magnitude, or unusual circumstances,
warrants such additional security.
[Amended 11-7-2023]
D.
Notwithstanding any of the above requirements, the Selectboard is
hereby given the authority to allow utility companies to perform their
own repairs in lieu of posting any other surety or performance bond
required by this section under the direction of the Public Works Director.
[Amended 11-7-2023]
E.
Applicants may post an aggregate bond in January of each year to
secure a designated number of cuts during that year. The terms of
that bond and per-cut amount shall be as provided herein for single-cut
bonds. Any portion of such an aggregate bond not used by December
31 of the year it was posted may not, without approval of the Selectboard,
be carried over to the following year.
[Amended 11-7-2023]
[Amended 11-7-2023]
A certificate of insurance shall be required with limits of
public liability coverage deemed by the Selectboard to be sufficient
to provide adequate protection to the Town, its citizens and the general
public.
A.
Prior to excavation work, notice shall be given to the persons maintaining
any underground facility, or to the municipal department or officer
charged with the care thereof, which may be injured or affected by
the making of any such excavation. Such notice shall be made in accordance
with state law, as described in 23 M.R.S.A. § 3360-A.
B.
Every excavation must be done in a skillful manner. Each permittee
shall obtain information as to the existence and location of all underground
facilities and protect the same against damage.
C.
No injury may be done to any underground facility in the making of
excavations. In order to avoid such injury, an excavator may not use
mechanical means of excavation when excavating within 18 inches of
any unmarked underground facilities until such facilities have been
exposed. Notwithstanding this limitation, mechanical means are permitted,
as reasonably necessary, for initial penetration and removal of pavement,
rock, or other materials requiring the use of mechanical means of
excavation.
D.
No damage may be done to any tree or shrub or the roots thereof in
the making of any such excavation. The owner of such tree or shrub
shall be compensated by the permittee for any damage done.
E.
Except by permission of the Director of Public Works, an excavator
may not leave open at any time a trench or excavation of a greater
length than 200 feet.
F.
The above
requirements are not intended to supersede state or federal requirements.
[Added 11-7-2023]
A.
Any person, firm or corporation making any excavation in or under
any street, sidewalk or public parking lot shall restore the surface
to its original condition or better, in accordance with the minimum
standards contained herein.
B.
Excavation work, including procedures and materials, shall conform
to said minimum standards and to such other standards of the Director
of Public Works as may be adopted by the Selectboard as a condition
of permit approval.
[Amended 11-7-2023]
C.
Minimum standards shall include the following:
[Amended 11-7-2023]
(1)
In all cases, replaced bituminous asphalt shall include a grinded
joint where it joints existing unimproved bituminous asphalt.
(2)
All street opening temporary repairs shall be conducted in the following
manner:
(a)
Pavement shall be saw cut with clean lines a minimum of one foot
beyond the perimeter of the excavation.
(b)
Be backfilled with 3/4 inch crushed packing gravel and compacted
until 95% compaction is achieved.
(c)
After proper compaction is achieved, new bituminous asphalt consisting
of four inches of binder or base mix (19 mm) applied in two-inch lifts
should be installed and properly compacted. Tack coat shall be applied
to all edges.
(3)
All street opening permanent repairs shall be conducted in the following
manner after one year/frost cycle (See detail/cross sections below.):
(a)
Pavement shall be cold milled to a depth of one to 1.5 inches at
a minimum distance of six inches beyond the perimeter of the temporary
repair.
(b)
Tack coat shall be applied to all milled surfaces at a rate of 0.06
to 0.08 gal./sq. yd.
(c)
The cold milled area will be overlayed with 9.5 mm surface mix asphalt
as per MDOT requirements.
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[Added 11-3-2020; amended 11-7-2023]
A.
Whenever
the Town has developed plans to reconstruct a street, the Town or
its representative shall give written notice thereof to all abutting
property owners, to the Town departments, and to all public utilities
that have or may wish to lay pipes, wires or other facilities in or
under the highway. Upon receipt of such written notice, such person
or utility shall have 60 days in which to install or lay any such
facility. If an extension of time is needed by a person or utility
for the installation of such facilities, the person or facility shall
make a written application to the Town during the sixty-day notice
period explaining fully the reasons for requesting such an extension
of time. At the expiration of the time fixed or extended and after
such street has been reconstructed, no permit shall be granted to
open such street for a period of five years from installation of hot-mixed
asphalt surface course layer unless an emergency condition exists
or unless the necessity for making such installation could not reasonably
have been foreseen at the time such notice was given. The above-mentioned
five-year moratorium for street openings also pertains to all new
public or private streets, i.e., new subdivisions or developments
that have been accepted in accordance with Town specifications. The
Town shall publish an annual street opening moratorium list with year
of notice and year of expiration for each street. This section should
not be construed to supersede Maine DOT street opening regulations
for roads maintained by the State of Maine.
B.
Restoring
surface: minimum standards.
(1)
Any
person, firm or corporation making any excavation in or under any
street, sidewalk or public parking lot shall restore the surface to
its original condition or better, in accordance with the minimum standards
contained herein.
(2)
Excavation
work, including procedures and materials, shall conform to said minimum
standards and to such other standards of the Director of Public Works
as may be adopted by the Selectboard as a condition of permit approval.
(3)
Minimum
standards shall include the following:
(a)
In all cases, replaced bituminous asphalt shall include a grinded
joint where it joints existing unimproved bituminous asphalt.
(b)
All street opening temporary repairs shall be conducted in the following manner as indicated in § 147-20C(2):
[1]
Pavement shall be saw cut with clean lines a minimum of one foot
beyond the perimeter of the excavation.
[2]
Be backfilled with 3/4 inch crushed packing gravel and compacted
until 95% compaction is achieved.
[3]
After proper compaction is achieved, new bituminous asphalt consisting
of four inches of binder or base mix (19mm) applied in two-inch lifts
should be installed and properly compacted. Tack coat shall be applied
to all edges.
(c)
All street opening permanent repair shall be conducted in the following manner after one year/frost cycle as indicated in § 147-20C(2) with the exception of the increased milling/overlay distance requirement indicated below:
[1]
Pavement shall be cold milled to a depth of 1.5 inches at a minimum
distance of 20 feet beyond the perimeter of the temporary repair.
[2]
Tack coat shall be applied to all milled surfaces at a rate of 0.06
to 0.08 gal./sq. yd.
[3]
The cold milled area will be overlayed with 9.5 mm surface mix asphalt
as per MDOT requirements
If any sidewalk is blocked by any excavation work, a temporary
sidewalk shall be constructed or provided which shall be safe for
travel and convenient for users. The temporary sidewalk is subject
to inspection by the Director of Public Works and shall not be open
for use until approved by the Director of Public Works.
A.
No excavation, except an emergency excavation, shall be allowed from
November 15 to April 15. The Selectmen may waive these limits on a
case-by-case basis only upon a finding that the need exists for an
emergency excavation.
B.
All cuts in existence in streets prior to November 15 shall be resurfaced
before December 10 to the Director of Public Works's satisfaction.
A.
It shall be the duty of every person, firm or corporation cutting
or making an excavation in or upon any street, sidewalks or public
parking lot to place and maintain barriers and warning devices necessary
for the safety of the general public. The Selectmen may restrict the
use of lanterns or open flame devices in fire hazard areas.
B.
The permittee shall take appropriate measures to assure that during
the performance of excavation work, traffic conditions as near to
normal as possible shall be maintained at all times so as to minimize
inconvenience to the occupants of the adjoining property and to the
general public. The permittee shall employ flagmen when necessary
to assure traffic safety.
C.
When traffic conditions permit, the Selectmen may by written approval
permit the closing of streets and alleys to all traffic for a period
of time prescribed by them. Such written approval may require that
the permittee give notification to various public agencies and to
the general public. In such cases, such written approval shall not
be valid until such notice is given.
D.
Warning signs shall be placed far enough in advance of the excavation
operation to alert traffic within a public street and cones or other
approved devices shall be placed to channel traffic, all in accordance
with the instructions of the Director of Public Works.
The permittee shall not move or otherwise interfere with any
underground facility without the written consent of the Selectmen
and the owner of the facility. In case any underground facility is
damaged, the permittee shall promptly notify the Town and the owners
thereof. All damaged facilities shall be repaired by the agency or
person owning them, and the expense of such repairs shall be charged
to the permittee, unless the owner of said damaged facilities consents
otherwise. As a condition of being granted a permit, the permittee
assumes all liability for damage to underground facilities and any
resulting damage or injury to any person because of such facility
damage.
Whenever the use of an underground facility is abandoned, except
the abandonment of service lines designed to serve single properties,
the person owning such facility shall, within 30 days after such abandonment,
file with the Director of Public Works a written statement giving
the location of the facility. If such abandoned facility is in the
way, or subsequently becomes in the way, of an installation of the
Town or any other public body, which installation is pursuant to a
governmental function, the owners shall remove such facility or pay
the cost of its removal.
After an excavation is commenced, the permittee shall promptly
complete work covered by the permit and restore the area to its original
condition.
When traffic conditions, the safety or convenience of the traveling
public or the public interest require that excavation work be performed
as emergency work, the Selectmen shall have authority to order that
a crew of men and adequate facilities be employed by the permittee
24 hours a day to the end that such excavation work may be completed
as soon as possible.
Each permittee shall conduct and carry out excavation work in
such a manner as to avoid unnecessary inconvenience and annoyance
to the general public and occupants of neighboring property. The permittee
shall take appropriate measures to reduce to the fullest extent practicable
in the performance of the excavation work noise, dust and unsightly
debris and, between the hours of 10:00 p.m. and 7:00 a.m., shall not
use, except in case of emergency excavation, any tool, appliance or
equipment producing noise of sufficient volume to disturb the sleep
or repose of occupants of the neighboring property.
The Director of Public Works shall from time to time inspect
or cause to be inspected all excavations of any street, sidewalk or
public parking lot in the Town to ensure the enforcement of the provisions
of this article. Notice shall be given to the Director of Public Works
at least 10 hours before the work of refilling any such tunnel or
excavation commences.
The Director of Public Works shall compile a handbook on the
use of proper procedures and materials in the excavation of streets,
sidewalks and public parking lots. Such handbook shall be available
for public inspection and may be referred to, in whole or in part,
by the Selectmen when imposing permit conditions.
A.
Any person, firm or corporation, including utility companies, which
excavates any street, sidewalk or public parking lot without a required
permit or in violation of the terms or conditions of any permit shall
be subject to a civil penalty of $25 for each offense and shall be
required to obtain the necessary permits.
B.
Any person, firm, or corporation, including utility companies, which violates § 147-19 herein shall be subject to a civil penalty of $50 for each offense. In addition, in the event that the work or any part of the work done in connection with filling trenches or excavation is unskillfully or improperly done, the Director of Public Works may immediately cause the work or any part of the work to be skillfully and properly done. The Director of Public Works shall keep an account of the expenses incurred, and the party in default shall forfeit and pay a penalty equal to the whole of the expense incurred by the Town, plus an addition of 50%.
C.
For purposes of this section, each day of a continuing offense constitutes
a separate offense.
D.
This article shall be enforced under the provisions of 30-A M.R.S.A.
§ 4452.
This article and any amendments shall be effective immediately
upon approval of the voters of the Town at the Annual Town Meeting.
