A. When Required: The town engineer may direct any person owning or maintaining facilities or structures in the public way to alter, modify or relocate such facilities or structures as the town engineer may require as set forth herein. Sewers, pipes, drains, tunnels, conduits, pipe driveways, vaults, trash receptacles and overhead and underground gas, electric, telephone, telecommunication and communication facilities shall specifically be subject to such directives. The person owning or maintaining the facilities or structures shall, at their own cost and expense and upon reasonable written notice by the town, promptly protect, or promptly alter or relocate such facilities or structures, or part thereof, as directed by the town. In the event that such person refuses or neglects to conform to the directive of the town, the town shall have the right to break through, remove, alter or relocate such part of the facilities or structures without liability to such person. Such person shall pay to the town all costs incurred by the town in connection with such work performed by the town, including also, design, engineering, construction, materials, insurance, court costs and attorney fees.
B. Basis For Directive: Any directive by the town engineer shall be based upon any of the following:
1. The facility or structure was installed, erected or is being maintained contrary to law, or determined by the town engineer to be structurally unsound or defective;
2. The facility or structure constitutes a "nuisance", as defined under state statute;
3. The permit under which the facility or structure was installed has expired or has been revoked;
4. The public way is about to be repaired or improved and such facilities or structures may pose a hindrance to construction; or
5. The grades or lines of the public way are to be altered or changed.
C. Police Power: Any directive of the town engineer under this section shall be under and consistent with the town police power. Unless an emergency condition exists, the town engineer shall make a good faith effort to consult with the person regarding any condition that may result in a removal or relocation of facilities in the public way to consider possible avoidance or minimization of removal or relocation requirements, and provide the directive far enough in advance of the required removal or relocation to allow the person a reasonable opportunity to plan and minimize cost associated with the required removal or relocation.
D. Exception: This obligation does not apply to facilities or structures originally located on private property pursuant to a private easement, which property was later incorporated into the public way, if that prior private easement grants a superior vested right.
E. Failure To Comply; Penalty: Any person owning or maintaining facilities or structures in the public way who fails to alter, modify or relocate such facilities or structures upon notice to do so by the town engineer shall be guilty of a class B misdemeanor, subject to penalty as provided in section 1-4-1 of this code. All costs of alteration, modification or relocation shall be borne by the person owning or maintaining the facilities or structures involved.
F. Emergency Work: The town may, at any time, in case of fire, disaster or other emergency, as determined by the town in its reasonable discretion, cut or move any parts of the system and appurtenances on, over or under the public way, in which event the town shall not be liable therefor to a person. The town shall notify a person in writing prior to, if practicable, but in any event as soon as possible and in no case later than the next business day following any action taken under this subsection. (Ord. 10-02, 2-2-2010)