[HISTORY: Adopted by the Mayor and Council of the Borough
of Dunellen 12-2-2013 by Ord. No.
2013-08. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the
meaning indicated:
A unit that has assembled together two or more newsrack boxes
in a housing that is supported by one or more pedestals. The modular
newsrack box assembly is then permanently attached to a sidewalk or
concrete pad by bolts or other such fasteners. Newspapers are distributed
by placing such newspapers in the various newsrack boxes by various
newspaper vendors. Two or more newspaper vendors may distribute newspapers
from an MNBA.
Any person or other legal entity distributing publications
by the use of a newsrack box in the Borough of Dunellen.
A rectangular cube-type box that has a windowed door on its
front for the purposes of viewing inside the cube-shaped box and also
to gain access to the box. Newspapers or other news periodicals are
placed in the newsrack box for the purposes of distribution. One gains
access to the interior of the newsrack box by opening the front windowed
door. The newsrack box may be, but need not be, accessed by inserting
coined money to unlock the access door.
The Mayor and Council find and declare that:
A.
The uncontrolled placement of newsracks or MNBAs in public rights-of-way
and semipublic rights-of-way presents an inconvenience and danger
to the safety and welfare of persons using such rights-of-way, including
pedestrians, persons entering and leaving vehicles and buildings,
and persons performing essential utility, traffic control and emergency
services.
B.
Newsracks or MNBAs so located as to cause an inconvenience or danger
to persons using public rights-of-way and semipublic rights-of-way,
and unsightly newsracks or MNBAs located therein, constitute public
nuisances.
C.
These factors constitute an unreasonable interference with and obstruction
of the use of public rights-of-way and semipublic rights-of-way, are
injurious to health, offensive to the senses, and constitute such
an obstruction of the free use of property as to interfere in the
comfortable enjoyment of life and property by the entire community.
D.
The Borough Council recognizes, however, that the use of such rights-of-way
is so historically associated with the sale and distribution of newspapers
and publications that access to the areas for such purposes should
not be absolutely denied. The Borough Council further finds that these
strong and competing interests require a reasonable accommodation
which can only be satisfactorily achieved through the means of this
chapter which is designed to accommodate such interest regulating
the time, place and manner of using such newsracks or MNBAs and intends
to provide for national, regional, local and nonprofit publications.
E.
The provisions and prohibitions hereinafter continued and enacted
are in pursuance of securing and promoting the general welfare of
persons in the Borough in their use of public rights-of-way and semipublic
rights-of-way through the regulation of placement, appearance, number,
size, and servicing of newsracks or MNBAs on such rights-of-way so
as to:
(1)
Provide for pedestrian and driving safety and convenience;
(2)
Ensure no unreasonable interference with the flow of pedestrian or
vehicular traffic, including ingress to, or egress from, any place
of business from the street to the sidewalk;
(3)
Provide reasonable access for the use and maintenance of sidewalks,
poles, traffic signs and signals, hydrants, mailboxes, and similar
appurtenances, and access to locations used for public transportation
purposes;
(4)
Reduce visual blight on the public rights-of-way and semipublic rights-of-way,
protect the aesthetics and value of surrounding properties, and protect
the quiet of residential areas; and
(5)
Reduce exposure of the Borough to personal injury or property damage
claims and litigation.
No person shall install, use or maintain any newsrack or MNBAs
within the Borough except as specifically provided in this chapter.
A.
Newsracks or MNBAs shall only be permitted to be installed on the
public sidewalks, public property, and on the exterior of any building
on private property in the Borough within the Central Business District,
consisting of North Avenue, Washington Avenue, and Prospect Avenue.
No other newsrack or MNBA shall be permitted to be placed anywhere
in the Borough, except as is provided in this chapter. Specific permitted
locations are set forth in Schedule A, attached.[1]
[1]
Editor's Note: Schedule A is included as an attachment to
this chapter.
B.
The newspaper vendors will be obligated to purchase at its expense
its own newsracks or MNBAs. In the event the Borough purchases either
the newsracks or MNBAs for and on behalf of a newspaper vendor(s),
such newspaper vendors(s) shall reimburse the Borough its out-of-pocket
expense for such purchases wherein each vendor shall pay its proportionate
share of such out-of-pocket expenses. The Borough shall not receive
any additional money above and beyond that which it expended for the
newsracks or MNBAs. The Borough prefers that the newspaper vendors
purchase the newsracks and MNBAs.
C.
Maintenance, repair, and service of each newsrack and MNBA shall
be the obligation of the newspaper vendors. In the event the Borough
expends any moneys for such, the Borough shall be reimbursed its expenditures
by the newspaper vendors who were obligated to make such expenditures.
Prior to the Borough performing any maintenance, repairs or service
to the newsracks or MNBAs, the Borough will take reasonable steps
and efforts to cause the responsible newspaper vendors to perform
such maintenance, repair and/or service.
D.
The style, color, size, material, and design of the newsrack shall
be a Black K80 Kaspar Sho-Rack Newsrack or such design alternative
as is approved by the Architectural Review Committee, and the MNBA
shall be a Black "Arlington" Modular Kaspar, also known as the Concourse
97 or 98, or such design alternative as the Architectural Review Committee
approves.
E.
The installation locations of the newsracks or MNBAs within the Borough
shall be selected by the Borough as described in more detail herein
as set forth in Schedule A, attached. The newspaper vendors shall
be obligated to arrange for the installation work for each newsrack
or MNBA installed on the public sidewalks or public property, at the
newspaper vendor's own expense.
F.
There are no time restrictions as to when the public may access the
newsracks to obtain newspapers, that is, such access may occur 24
hours per day, seven days per week, since the newsracks or MNBAs are
not located in the residential districts.
G.
Any other type of individual freestanding newspaper vending machines,
boxes, newsracks, etc., whether coin-operated or otherwise, are prohibited
in the Borough.
The Borough, in its discretion, shall determine the specific
location of each newsrack or MNBA. At each location there shall be
no more than five newsracks or MNBAs. The determination of the place
and manner of installation of such newsracks or MNBAs shall be made
by the Borough in its discretion, wherein its discretion shall not
be exercised unreasonably, capriciously or arbitrarily, and shall
be made in accordance with the criteria of this chapter, as governed
by federal and state law.
The newsracks or MNBAs located within the Borough shall be installed in accordance with §§ 193-4, 193-5 and 193-7 herein; however, in the event the Borough seeks to add additional locations, it will do so based on the following criteria:
A.
No newsrack or MNBA shall be installed wherein it impedes the flow
of pedestrian or vehicular traffic.
B.
No newsrack or MNBA shall be installed wherein it endangers the public
safety of persons or property.
C.
No newsrack or MNBA shall be installed wherein it interferes with
the ingress and egress from any residence or place of business.
D.
No newsrack or MNBA shall be located wherein its location interferes
with the use of traffic signs, traffic signals, fire hydrants, utility
poles, mailboxes, and other such police, fire, and/or traffic control
devices.
E.
The content of the newspaper publication shall not be considered
in determining the manner of and place of location of the newsrack
or MNBA.
F.
The newsrack or MNBA shall be placed in a location in keeping with
the character and zoning in the Borough so as to minimize the visual
appearance and clutter of newsracks, but not at the expense of the
newspaper vendor's First Amendment Right to distribute its newspaper.
G.
No newsrack or MNBA shall be installed above, or within a proximity
to interfere with the use, maintenance, and/or repair of any gas line,
water line, sewer line or other such utility line.
H.
No newsrack or MNBA shall be located so as to impede the lawful use
of any buildings or access thereto.
I.
No newsrack or MNBA shall be located as to interfere with the growth
of any municipally owned shade trees, plants, and shrubs existing
in the right-of-way sidewalk area.
J.
No newsrack or MNBA shall be located to interfere with the use of
municipally installed public benches and seating.
The Borough has selected the locations for the newsracks or
MNBAs to be installed in accordance with this chapter. The locations
listed on Schedule A, attached, are exhaustive and exclusive.[1] Others may be added by the Borough on its own request
by resolution without the need to amend this chapter.
[1]
Editor's Note: Schedule A is included as an attachment to
this chapter.
A.
It shall be unlawful for any newspaper vendor to erect, place, maintain
or operate on any street or sidewalk or in any other public way or
place in the Borough any newsrack or MNBA without first having obtained
a special permit from the Borough Clerk, approved by the Director
of Code Enforcement and Superintendent of the Department of Public
Works, and the Mayor and Council in accordance with the standards
and time period set forth below.
B.
Any newspaper vendor who desires to install and maintain a newsrack
or MNBA on public property along the streets and sidewalks within
the Borough shall make an application for a permit, in writing, to
the Borough Clerk on such forms as shall be provided by the Office
of the Borough Clerk. Said application shall specify the name, address
and telephone number of the applicant; the proposed specific location
of the newsrack(s) or MNBA(s); the location of any existing newsracks
or MNBAs within the Borough belonging to said applicant, including
the date each was installed; and shall be signed by the applicant
or the applicant's authorized representative. Before an application
may be submitted to the Borough Clerk, said application must contain
the signature of both the Director of Code Enforcement and Superintendent
of the Department of Public Works, or their authorized agent(s), indicating
that each, respectively, approves of the application.
C.
Any newspaper vendor having a newsrack or MNBA which is already located
or installed in whole or in part on any public sidewalk or public
right-of-way within the Borough on the effective date of this chapter
shall, within 30 days from the effective date hereof, file an application
for a special permit, unless said newspaper vendor has already obtained
similar approval from the Mayor and Council for the installation and
use of a newsrack or MNBA at a specified location in the Borough.
D.
Each newspaper vendor shall have a duty to promptly notify the Borough
Clerk of any changes in the information provided in its application.
F.
The Mayor and Council shall either grant or deny an application for a special permit to install and maintain a newsrack or MNBA at the location specified in the application at a regular meeting held no later than 30 days from receipt of a completed application by the Borough Clerk. At that meeting, the Mayor and Council shall state with particularity the reasons for its decision to grant or deny the application, including, in the case of a denial, the specific provisions of §§ 193-4, 193-5, and 193-7 herein, which the application fails to meet.
G.
The Mayor and Council shall grant or deny applications for a special
permit in the order from which a completed application is received
by the Borough Clerk.
H.
A permit fee in the amount of $100 for the first newsrack or MNBA
installed by a newspaper vendor and $75 for each additional newsrack
or MNBA shall be paid upon submission of an application for a special
permit. No application shall be deemed complete unless it is accompanied
by the required permit fee.
I.
Any permit issued hereunder shall be valid for a period of one year
from the date of issuance thereof and shall be renewable upon the
payment of an annual fee in the amount of $75 per newsrack or MNBA,
which shall be accompanied by written confirmation that the location
of the newsrack or MNBA has not been changed.
J.
The purpose of the initial permit fee and the annual renewal fee
required above is to offset the costs of administration, inspection
and enforcement of the provisions of this chapter.
Any newsrack or MNBA which in whole or in part rests upon, in
or over any public sidewalk or public right-of-way or which projects
onto, into or over any part of a public right-of-way within the Borough
shall comply with the following standards:
A.
No newsrack or MNBA shall be used for commercial advertising or commercial
publicity purposes other than to display, promote or advertise the
sale of the newspaper, news periodical or magazine sold therein.
B.
Each newsrack or MNBA shall be equipped with a coin-return mechanism
to permit a person using the machine to secure an immediate refund
that he/she is unable to receive the publication paid for. The coin-return
mechanism shall at all times be maintained in good working order.
C.
Each newsrack or MNBA shall have affixed thereto, in a readily visible
place so as to be seen by anyone using the newsrack or MNBA unit,
a notice setting forth the name and address of the newspaper vendor
and the telephone number of a working telephone service to call to
report a malfunction or to secure a refund in the event of a malfunction
of the coin-return mechanism or to give notice to the Borough Clerk.
D.
Each newsrack or MNBA shall be maintained in a neat and clean condition
and in good repair at all times. Specifically, but without limiting
generality of the foregoing, each newsrack or MNBA shall be serviced
and maintained so that:
(1)
It is reasonably free of loose, chipped, peeling and cracked paint
in the visible painted areas thereof;
(2)
It is reasonably free of rust and corrosion, in the visible metal
areas thereon;
(3)
The clear plastic or glass parts thereof, if any, through which the
publications therein are viewed, are not broken and reasonably free
of cracks, dents, blemishes and discoloration;
(4)
The paper or cardboard parts or inserts thereof, if any, are reasonably
free of tears, peelings, or fading; and
(5)
The structural parts thereof are not broken, cracked or otherwise
dangerous to users thereof.
E.
The newspaper vendor shall be responsible for properly disposing
of unsold newspapers by bundling them for recycling and depositing
them in a receptacle designated by law for such purposes. Failure
to do so shall subject the newspaper vendor to punishment under this
and all other applicable laws, rules and regulations, including, but
not limited to, the forfeiture of any license(s) obtained pursuant
to this chapter.
A.
Any person or entity who violates any provision of this chapter shall
be notified, in writing, of such violation and have 15 days from the
date of the notice to correct the violation.
B.
Any person or entity who violates any provision of this chapter and
continues such violation for more than 15 days after having received
the above notice, shall, upon conviction, be subject to a penalty
of $100; each day may be considered a separate offense.
C.
If a newspaper vendor is convicted of a violation of this chapter
by the Municipal Court and if such newspaper vendor thereafter refuses
to remedy or correct the violation within 10 days from the date of
conviction, then the Borough Clerk shall be empowered to remove the
newsrack or MNBA which is the basis for such conviction from the public
sidewalk or public right-of-way or other place and return such newsrack
or MNBA to the newspaper vendor.
