[HISTORY: Adopted by the Town Board of the Town of Forestburgh 5-11-1978 by L.L. No. 2-1978 as Ch. 43 of the 1978 Code. Amendments noted where applicable.]
Word usage. As used in this chapter and when not inconsistent with the context, words in the present tense include the future, words in the plural include the singular, words in the singular include the plural and the masculine shall include the feminine and the neuter. The word "shall" is always mandatory and not merely directory.
Definitions. As used in this chapter, the following terms shall have the meanings indicated:
- Any person who makes application for a permit.
- Any unforeseen circumstance or occurrence, the existence of which constitutes a clear and immediate danger to persons or property.
- Any person who has been issued a permit and has agreed to fulfill all the terms of this chapter.
- Any natural person, partnership, firm, association utility or corporation. Whenever used in any section prescribing and imposing a penalty, the term "person" as applied to associations shall mean the partners or members thereof, and as applied to corporations, the officers thereof.
- A public street, public easement, public right-of-way, public highway, public alley, public way, public road or public sidewalk accepted or maintained by the Town.
- The person in charge of the Department of Highways or the highway operations in the Town or his authorized deputy, representative or inspector.
- The Town of Forestburgh.
It shall be unlawful for any person to make any tunnel, opening or excavation of any kind in or under the surface of any street without first securing a permit from the Town for each separate undertaking; provided, however, that any person maintaining pipes, lines or other underground facilities in or under the surface of any street may proceed with an opening without a permit when emergency circumstances demand that the work be done immediately, provided that the permit could not reasonably and practically have been obtained beforehand. Such person shall thereafter apply for a permit on the first regular business day on which the office of the Town Clerk is open for business, and said permit shall be retroactive to the date when the work was begun.
No person to whom a permit has been granted shall perform any of the work authorized by such permit in any amount or quantity greater than that specified in the permit, except that upon the prior approval of the Highway Superintendent, additional work may be done under the provisions of the permit in any amount not greater than 10% of the amount specified in the permit. Any deposit and bond posted in connection with the original permit shall be deemed to cover any such additional work as may be approved pursuant to this section within the limit mentioned herein.
Work for which a permit has been issued shall commence within 14 days after the issuance of the permit therefor. If not so commenced, the permit shall be automatically terminated. Permits thus terminated may be renewed upon the payment of an additional permit fee as originally required.
Permits are not transferable from one person to another, and the opening shall not be made in any place other than the locations specifically designated in the permit.
Every permit shall expire at the end of the period of time which shall be set out in the permit. If the permittee shall be unable to complete the work within the specified time, he shall, prior to the expiration of the permit, present in writing to the Town Clerk a request for an extension of time, setting forth therein the reasons for the requested extension. If, in the opinion of the Highway Superintendent, such an extension is necessary and not contrary to the public interest, the permittee may be granted additional time for the completion of the work.
The provisions of this chapter shall not be applicable in those instances where the highway is maintained by the State of New York or by the County of Sullivan.
Every permit granted shall be subject to the right of the Town and of any other person entitled thereto to use the street for any purpose for which such street may lawfully be used, not inconsistent with the permit.
Any permit may be removed by the Town Clerk after notice to the permittee for:
Violation of any condition of the permit or of any provision of this chapter.
Violation of any provision of any other applicable ordinance or law relating to the work.
Existence of any condition or the doing of any act constituting or creating a nuisance or endangering the lives or property of others.
Written notice of any such violation or condition shall be served upon the permittee or his agent engaged in the work. The notice shall contain a brief statement of the grounds relied upon for revoking the permit, and a permittee may be granted a 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. Notice may be given either by personal delivery thereof to the person to be notified or by certified or registered United States mail addressed to the person to be notified.
When any permit has been revoked and the work authorized by the permit has not been completed, the Highway Superintendent shall do such work as may be necessary to restore the street or part thereof to as good condition as before the opening was made. All expenses incurred by the Town shall be recovered from the deposit or bond the permittee has made with the Town.
It shall be the duty and responsibility of any applicant to:
Make a written application for such permit to the Town Clerk on forms providing all information necessary for the administration and enforcement of this chapter. No work shall commence until the Highway Superintendent has approved the application and plan and the Town Clerk has issued a permit, nor until the permittee has paid and provided all fees, deposits and certificates required by this chapter.
Furnish in duplicate a plan showing the work to be performed under said permit. If approved by the Highway Superintendent, one copy of such plan shall be returned to the applicant at the time the permit is granted.
It shall be the duty and responsibility of any person receiving a permit to:
Pay a permit fee, established by resolution of the Town Board, per lineal foot of street opening measured along the length of the street opening; provided, however, that public utilities or authorities shall be billed quarterly for such fees as they shall accrue.
Make a deposit to cover the cost of restoring the street damaged by such work. The amount of deposit or bond shall be established by the Town Board from time to time by resolution.
Submit, when required by the Town Clerk, a list of owners and tenants of all properties abutting the area where the work authorized by the permit is to be performed.
Present evidence that all materials, labor and equipment needed to complete such work as authorized by the permit are available.
Keep the original copy of the permit and an approved copy of the plat at all times while such work is in progress at the location for which said permit was granted and show such permit and plan upon demand by the Town authorities.
No opening or excavation in any street shall extend beyond the center line of the street before being backfilled and the surface of the street temporarily restored.
No more than 250 feet, measured longitudinally, shall be opened in any street at any one time without special permission in writing from the Town Board, and only in instances where a special hardship can be shown.
All utility facilities shall be exposed sufficiently ahead of trench excavation work to avoid damage to those facilities and to permit their relocation, if necessary.
Pipe drains, pipe culverts or other facilities encountered shall be protected by the permittee.
In the event the permittee damages the property or facilities of another, the permittee shall repair this damage within 12 hours in the case of a utility and within 48 hours in the case of any other private party. If the damage has not been repaired within these time limits, the party sustaining the damage shall undertake to have the repairs made at his own expense and report to the Town as soon as possible the amount of expense incurred. This amount may be withheld from the permittee's deposit or bond by the Town Clerk pending final determination and settlement of any liability for this damage. Whenever damage occurs, the injured party shall notify proper Town authorities within 24 hours so that steps can be taken to determine the extent and plans can be made for its repair.
When work performed by the permittee interfers with the established drainage system of any street, provision shall be made by the permittee to provide proper drainage to the satisfaction of the Highway Superintendent.
Every permittee shall place around the project such barriers, barricades, lights, warning flags and danger signs as shall be determined by the Highway Superintendent to be necessary for the protection of the public. Additional safety requirements may be prescribed by the Highway Superintendent and, where applicable, shall be in conformance with the requirements set forth in the United States Department of Army Corps of Engineers publication. Safety Requirements (1941 Edition, revised 1951). Copies of this publication shall be made available in the office of the Town Clerk for inspection by the public.
Whenever any permittee fails to provide or maintain the safety devices required by the Highway Superintendent, such devices may be installed and maintained by the Town. The amount of the cost incurred shall be paid by the permittee or deducted from his deposit or bond. Such costs shall be determined by the Town.
No person shall willfully move, remove, injure, destroy or extinguish any barrier, warning light, sign or notice erected, placed or posted in accordance with the provisions of this chapter.
Work authorized by a permit shall be performed between the hours of 7:00 a.m. and 7:00 p.m., Monday through Saturday, unless the permittee obtains written consent from the Highway Superintendent to do the work at an earlier or later hour. Such permission shall be granted only in case of an emergency.
In no case shall any opening made by a permittee be considered in the charge or care of the Town or any of its officers or employees, and no officer or employee is authorized in any way to take or assume any jurisdiction over any such opening, except in the exercise of the police power, when it is necessary to protect life and property.
Only natural earthen or masonry material may be used as fill on construction or excavation in the Town of Forestburgh. Any person, firm or corporation may apply to the Town Supervisor in writing for the use of fill other than natural earthen or masonry material. After the submission of such application, the applicant shall exhibit to the Town Supervisor the type of fill desired to be used and the Town Supervisor in his sole discretion may authorize in writing the use of such other type of fill.
The deposit or bond shall be made at the time the permit is received, and the deposit or bond shall be used to reimburse the Town for the cost of any work and materials furnished by it in connection with the work authorized by the permit and for any other purpose set forth in this chapter.
The deposit or bond may be either in the form of a certified treasurer's or cashier's check or in lawful money of the United States.
If any deposit or bond is less than sufficient to pay all cost, the permittee shall, upon demand, pay to the Town an amount equal to the deficiency. If the permittee refuses or fails to pay such deficiency, the Town may institute an action to recover the same in any court of competent jurisdiction. Until such deficiency is paid in full, no additional permits shall be issued to such permittee.
The amount of deposit or bond for street openings shall be as established from time to time by resolution of the Town Board.
The deposit and bond requirement set forth in this chapter may be waived by the Town Board if the work of excavation is being performed by the Town itself.
Upon notification by the permittee that all work authorized by the permit has been completed and after restoration of the opening and final inspection, the Town Clerk shall refund to the permittee his deposit or release his bond less all costs incurred by the Town in connection with said permit and any other expenses required by this chapter for which final settlement has not been made. In no event shall the permit fee be refunded once work has been undertaken.
Each applicant, upon the receipt of a permit, shall provide the Town with an acceptable certificate of insurance indicating that he is insured against claims for damages for personal injury as well as against claims for property damage which may arise from or out of the performance of the work. Such insurance shall cover any and all possible hazards of whatsoever kind or nature and shall include protection against liability arising from completed operations. The amount of the insurance shall be prescribed by the Town Board in accordance with the nature of the risk involved; provided, however, that the liability insurance in effect shall be in an amount of $1,000,000 for bodily injury, $250,000 for damages to private property and $250,000 for damages to Town property. Public utilities and authorities may be relieved of the obligation of submitting such a certificate if they are insured in accordance with the requirements of this chapter.