Section
General Provisions
93.001 Seating at Mountain State Forest Festival
93.002 Harmful or offensive matter
93.003 Conducting trade or business
93.004 Animals or bicycles on sidewalks
93.005 Playing, coasting or skating on sidewalks
93.006 Duties of owners and occupants as to sidewalks
93.007 Obstructions
93.008 Openings in sidewalks
93.009 Guttering of porches and balconies
93.010 Matters incidental to street improvements; connection standards
93.011 Matters incidental to street improvements; notice to make connections; failure to make connections
93.012 Permanent improvements requested by petition
Construction and Repair of Sidewalks
93.025 Obligation of owner; exception
93.026 Obligation of owner; failure to comply
93.027 Liability of adjacent property owners
93.028 Construction standards
93.029 Permit; form
93.030 Permit; required; fee
93.031 Permit; determination of Public Works Director
93.032 Permit; determination of Public Works Director; approval; certificate
93.033 Record of permits and certificates
93.034 Applications to have sidewalk grades and lines established
Excavations
93.045 Permit required
93.046 Excavations near streets, sidewalks and public places
93.047 Permit; application
93.048 Permit; prerequisites; surety
93.049 Companies operating under city franchise
93.050 Manner of work; restoration of surface
93.051 Required safeguards; footbridges
93.052 Bridges over excavations in roadways
93.053 Safeguards relating to sidewalk excavations
93.054 Handling, conveyance and disposition of dirt
93.055 State permit
Street and Alley Abandonment Procedures
93.070 Legislative intent
93.071 Authority
93.072 Procedure
93.073 Deposit of costs; fees non-returnable
93.074 Grounds for disapproval
93.075 Division of abandoned public way
93.076 Quitclaim deed
Trees
93.090 Certain trees prohibited
93.091 Tree guidelines
93.092 Definitions
93.093 Creation and establishment of City Tree Board
93.094 Term of office
93.095 Compensation
93.096 Duties and responsibilities
93.097 Operation
93.098 Tree species to be planted
93.099 City Arbor Day
93.100 Dead or diseased tree removal on private property
93.101 Tree planning meetings
93.102 Review by the Council
93.103 Liability
Outdoor Dining in Public Places
93.115 Outdoor dining rules and regulations
93.116 Compliance with federal, state, and local laws and regulations
93.117 Definitions
93.118 Permit process
93.119 Standards for outdoor dining areas
93.120 Additional requirements
93.121 Denial or revocation of permit
93.999 Penalty
Cross-reference:
Burning paper, refuse and the like in streets, see § 92.003
Exhibiting stallion, jack or bull on streets and the like, see § 90.11
Loitering generally, see § 130.012
Public Works Director, see § 32.19
Spitting in public, see § 130.017
Staking cows or other animals on streets or property of another, see § 90.10
Street carnivals, parades or exhibitions, see § 130.018
Vehicles and traffic generally, see Title VII
Statutory reference:
Assessments by city to improve streets and sidewalks, see W.Va. Code §§ 8-18-1 et seq.
Authority of city to layoff, construct, repair and the like, streets, sidewalks, gutters and the like, and to keep them free from obstructions and the like, see W.Va. Code § 8-12-5(1) to (5)
Authority of city to provide for the regulation and control, acquisition, care, management and use of the city’s streets, alleys, ways and property, see W.Va. Code § 8-12-2
Low cost street and sidewalk improvements, see W.Va. Code §§ 8-17-1 et seq.
GENERAL PROVISIONS
(A) The placing of chairs for viewing the Mountain State Forest Festival scheduled parades shall, insofar as they are placed between the curb of any street on the parade route and the property of any person abutting the parade route, be placed only with the permission, direction and control of such abutting property owner, subject only to the provisions of this section.
(B) Chairs shall be so placed as to leave the sidewalk abutting the parade route clear and unobstructed for normal pedestrian traffic.
(C) Chairs shall not be placed in the traveled portion of any street.
(D) No person shall sell chairs or seating for any consideration for the viewing of parades without written permission of the Council. Such permission shall be for no longer than one year at a time. Sales of chairs and seating shall be only by religious, charitable or non-profit organizations.
(E) By granting the right to place chairs or seating upon that portion of the public street right-of-way adjacent to any abutting owner’s property, the city shall assume no liability or responsibility for injuries of parade spectators or users of the rights granted herein.
(1991 Code, § 18-1) (Ord. passed 9-7-1972) Penalty, see § 93.999
No person, except as authorized by this code or other ordinance, order or regulation of the Mayor or Council, shall drop, place, throw or suffer to remain or cause to be dropped, placed, thrown or suffered to remain upon any street or other public place any glass, bottles, scrap-iron, nails, tacks, paper or offensive matter of any kind.
(1991 Code, § 18-2) Penalty, see § 93.999
(A) No person shall, without the consent of the Council, perform any work of any character pertaining to his or her trade or business or the trade or business of another, upon any public street, sidewalk, park or public square within the city.
(B) No person, without the consent of the Council, shall at any time sell, offer or expose for sale at public auction any goods, wares, merchandise or property of any kind upon any street; except, that this requirement shall not apply to officers of the law in making sales under the process of a court or in discharge of their official duties.
(1991 Code, § 18-3) Penalty, see § 93.999
(A) No person shall lead, ride or drive any horse or other animal, except dogs, along or upon any of the sidewalks or footwalks.
(B) No person shall drive, ride, roll or wheel any bicycle upon or along any sidewalk or footwalk; except, that persons may roll but not ride bicycles along the sidewalks and footwalks, if careful not to interfere with pedestrians.
(1991 Code, § 18-4) Penalty, see § 93.999
Cross-reference:
(A) No one shall engage in or play any game upon any sidewalk or footwalk nor coast thereon with sleds or skateboards.
(B) Nor shall anyone, without the consent of the owner or occupant of the premises adjacent thereto, skate upon any such sidewalk or footwalk.
(1991 Code, § 18-5) Penalty, see § 93.999
(A) It shall be the duty of each owner or occupant of any building or lot which abuts upon any street upon which there is a brick, stone, concrete, board or other type pavement or sidewalk to keep such pavement or sidewalk clean and free from obstruction of every kind and, when necessary, such person shall remove the snow and ice therefrom at least once each day and shall sweep such pavement or sidewalk at least once each day; except, that it shall not be necessary to sweep any such pavement or sidewalk on Sunday.
(B) It shall further be the duty of each owner and occupant of any building or lot which abuts upon any street upon which there is a brick, stone, concrete, board or other pavement or sidewalk to remove the dirt, paper, sweepings and refuse of any kind therefrom, nor shall such owner or occupant sweep or place any paper, sweepings, dirt, debris or any other refuse into the city streets, but shall remove such sweepings from such pavement or sidewalk.
(1991 Code, § 18-6) (Ord. passed 5-18-1950) Penalty, see § 93.999
(A) Enumerated. No person shall in any way obstruct any street, sidewalk, public footwalk, public park or square or any other public place. Obstructions, within the meaning of this section, shall include, but not be limited to, cut or fallen trees within the bounds of a public road or walkway which interfere with travel thereon; limbs of trees which have fallen or branches of trees overhanging so as to interfere with travel thereon and use thereof; landslides; carcasses of animals; lumber, wood or logs piled within the bounds of a public right-of-way, park or square; machinery, vehicles, conveyances and implements abandoned or habitually placed within the bounds of a public right-of-way, park or square; fences, buildings or other obstructions within the bounds thereof; ashes, cinders, earth, stone or other material placed thereon or in any ditch or waterway along any such public right-of-way; water diverted from its regular course so as to injure or endanger a public right-of-way; pipe lines, telegraph, telephone or other poles and wires connected therewith constructed or erected on a public right-of-way, public park or square which interfere with the use thereof; or any other thing which will prevent the easy, safe and convenient use of such public right-of-way, park or square.
(B) Prohibited; injunction. Such obstructions so placed and left within the boundaries of any such public right-of-way, park or square are hereby declared to be public nuisances and, in addition to other remedies provided by this subchapter and other chapters of this code, the city may apply to the Circuit Court of the county for an injunction to abate such nuisance.
(C) Obligation as to removal or repair.
(1) It shall be the duty of the owner or occupant of land situated along any public right-of-way or abutting any public park or square to remove all obstructions within the boundaries of such public right-of-way, park or square which have been placed thereon by himself or herself or with his or her consent.
(2) It shall be the duty of all telephone, telegraph or other power or communication companies to remove and reset telephone, telegraph and other poles and the wires connected therewith when such poles or wires constitute obstructions to the use of a public right-of-way, park or square.
(3) It shall be the duty of all pipe line companies whose lines have been laid across or along any public right-of-way, park or square for the purpose of transporting natural gas, oil, water or other substance, to fill up all excavations made thereby so that the surface or pavement overlying such excavation is, in all respects, in as good condition as it was before the excavation was made.
(D) Removal or repair by city.
(1) Notice. If such obstructions or poles, wires or pipe lines are not removed or such poles and wires reset or such excavations are not properly filled and maintained within ten days after the service of a notice by the city upon any such owner or occupant requesting such correction to be made, the Council, by its duly designated agent, shall cause such obstructions and such poles, wires or pipe lines to be removed and reset or such repairs on the excavations to be made, as may be necessary to return such pavements or surfaces to their original condition.
(2) Costs. The Council shall assess the cost of removing obstructions and removing and resetting piles and wires, or such repairs as are necessary to faulty excavations pursuant to this section, against any owner, occupant, company or corporation neglecting to perform its duty imposed by the provisions of this section. The Council shall cause to be served upon such owner, occupant or company a written notice stating that, at the time and place specified therein, the Council proposes to assess such cost against such owner, occupant or company neglecting to perform such duty. Such notice shall be served at least ten days prior to the time specified therein. If directed against a corporation, such notice may be served as other notices or processes are served under W.Va. Code Ch. 56. At the time and place specified, the Council shall hear the parties interested and shall thereupon complete the assessment, as provided by W.Va. Code Ch. 8, Art. 18.
(1991 Code, § 18-7) (Ord. passed 3-3-1959; Ord. passed 3-19-1959) Penalty, see § 93.999
No person shall, without the consent of the Council, build any cellar door, window way, coal hole or other opening of any kind into or through any sidewalk or footwalk; and where any such way, hole or opening exists in any sidewalk or footway with the consent of the Council. Such opening shall never, under any circumstances, be left open so that pedestrians might fall therein, nor shall it at any time be opened if there is danger of pedestrians falling therein, unless someone is stationed to warn pedestrians of the danger during the time such aperture is open.
(1991 Code, § 18-8) Penalty, see § 93.999
It shall be the duty of every person who owns property upon which there is a house or other building which has a porch or balcony which protrudes or extends over the street or sidewalk to have such porch or balcony properly spouted or equipped with gutters; and if the owner fails or refuses to properly spout such porch or balcony within ten days after being duly notified so to do, he or she shall be subject to such penalties as are provided by § 93.999.
(1991 Code, § 18-9) Penalty, see § 93.999
(A) Whenever the city shall determine to permanently pave or improve any street, 30 days before the paving shall be begun, property owners having gas, water, sewer or other lines or conduits in the street where the paving is to be done shall connect or have their property connected with such lines and conduits, and where such connections have already been made, all property owners shall have examined or examine and test the connections thoroughly, and renew or repair them wherever such renewal or repair is deemed necessary by the Public Works Director, and put them in good order and condition; and, at least two feet below the surface, all the way from the mains to the inner side of the curb line and where deemed necessary by the Public Works Director, shall fit the pipe with the new valves, cut-offs, and the like of the weight, thickness, diameter and style prescribed by the Public Works Director. These connections shall be of such size and according to such regulations as are prescribed by the Council or the Public Works Director and shall extend from the respective lines to a point beyond the curb line.
(B) One such connection shall be made in front of every lot abutting on the proposed permanent pavement or improvement and, in the business section of the city, such connections shall be spaced more closely as directed by the Council or Public Works Director, but such connections shall be no less than 25 feet apart. Where a permanent improvement is to be made along the side of any corner lot, such connection shall be made as may be required by the Council or Public Works Director upon notice. Where a permanent pavement or improvement is to be made along vacant land not laid off into lots, the connections shall be made at intervals of 40 feet; provided, that in such cases where the Council is satisfied that there is no probability of the land being laid off into lots in the future, the connections may be more distantly spaced.
(1991 Code, § 18-11)
Notice to property owners to make connections with gas, water, sewer or other lines and conduits prior to the construction of permanent pavements or improvements may be made by service of notice upon the respective property owners or may be given by publication, in a newspaper published in the city, for two successive weeks, designating therein the streets along which the permanent improvements are to be made and if, after giving such notice, the property owner fails to install such connections within 30 days after notice is served or within 30 days after the first issue of notice appears in such newspaper, the city may put in the necessary connections, and the expense thereof shall be assessed against the abutting property and the owners thereof and placed in the hands of the City Collector and Treasurer for collection, and such expenses may be collected, with interest, as are taxes, and the costs shall be a lien upon such abutting property; provided, that the failure of the city to give notice in either form shall not release the property owners from the obligation of putting in connections prior to the construction of a permanent pavement or improvement. In no event shall any property owner be permitted to connect with or use any connections until the cost thereof has been paid to the city; but this last provision shall not release any property owner from the payment of the costs thereof even if he or she does not use such connection.
(1991 Code, § 18-12)
(A) (1) (a) All permanent improvements to streets, roads or alleys requested by petition of persons owning property abutting such streets, roads or alleys shall be made in accordance with plans and specifications prepared by the city.
(b) Such plans and specifications shall provide for adequate grading and drainage, including the construction of curbs and gutters in such cases as curbs and gutters are deemed necessary to properly preserve and protect the paving or surfacing improvements so made.
(2) In those cases where curbs and gutters are not deemed necessary to properly preserve or protect the paving and surface improvements contemplated, the city may construct said improvements, as herein provided, without curbs and gutters, and shall thereafter maintain said improvements, pursuant to division (C) below.
(B) In the event that the petition for improvements is directed only to the paving or surfacing of the streets, roads or alleys and does not request curbs, gutters or related improvements, and the plans and specifications for the project require the construction of curbs, gutters or related improvements, then the city will so advise the petitioners. If the petitioners agree that these related improvements are necessary and are willing to pay for the same, then petitioners will submit an amended petition requesting the city to construct such curbs, gutters or related improvements as are necessary; thereafter, the city will make the improvements requested by the petition or amended petition.
(C) Where the permanent improvements are made by the city in accordance with division (B) above, the city will bear the expense of resurfacing such street, road or alley in the future when such resurfacing becomes necessary.
(D) In the event that the petition for surfacing or paving improvements does not request any improvements other than the actual surfacing or paving of any street, road or alley, and in the event that is determined by the city that curbs, gutters or related improvements are necessary to preserve and protect the surfacing or paving so requested and the petitioners, being so advised, refuse to submit an amended petition as set forth in division (B) above and decline to agree to bear the expense of such improvements, then the city will proceed to make the improvements only as requested by the petition.
(E) Where improvements are made in accordance with division (D) above, the city shall not bear the expense of resurfacing or repaving the street, road or alley so improved at such time as such resurfacing or repaving might become necessary.
(F) Any of the foregoing provisions notwithstanding, the city will continue to perform ordinary and routine maintenance of all streets, roads and alleys within the city.
(G) This section applies only to petitions for the surfacing or paving of those streets, roads or alleys which heretofore have not been permanently improved by surfacing or paving with asphalt or concrete.
(1991 Code, § 18-12.1) (Ord. passed 5-18-1978; Ord. 006, passed 9-4-2003)
CONSTRUCTION AND REPAIR OF SIDEWALKS
(A) It shall be the duty of all persons owning land or lots which front upon a street which is maintained and kept by the city to put down and keep in good repair a suitable sidewalk or footwalk along the entire part of such land or lot which fronts upon any such street.
(B) When, in the opinion of the Council, it has become necessary, the property owner shall repave the sidewalk, in such a manner, of such width and of such suitable material as the Council shall direct; provided, that before any permanent sidewalk or footwalk is laid, it shall be the duty of the Public Works Director to fix the grade thereof, and such sidewalk shall be laid in conformity to such grade; and should the city, after the walk is laid, change the grade, the cost of laying a new walk to conform to such changed grade shall be paid by the city, as well as all damages the owner of the land or lot may sustain by reason of such change of grade.
(C) The Public Works Director, after establishing of the grade of any such walk shall report to the Council at the next regular meeting or sooner, if the Council shall so require, what is necessary for the protection and preservation of such walks to be laid in pursuance of this subchapter; and the Council, having made such provision for the protection and preservation of the walks as it deems necessary and proper, may thereupon direct that such walks be laid.
(1991 Code, § 18-13) (Ord. 097-03, passed 3-26-1997)
Statutory reference:
Assessments by city to improve streets and sidewalks, see W.Va. Code §§ 8-18-1 et seq.
Low cost street and sidewalk improvements, see W.Va. Code §§ 8-17-1 et seq.
(A) Notice; authority of city. If at any time any sidewalk or footwalk needs repair, or if any land or lot owner fails to build such walk or repave any walk when repaving, in the opinion of the Council, has become necessary, it shall be the duty of the Mayor to cause the owner of the land or lot adjacent thereto to be notified in writing of such need of laying or repair of the walk and of the character of repaving needed to be done and, if such repairs are not made by the land or lot owner within ten days after the service of such notice or if such new walk is not laid or repaving done within 30 days after the service of such notice, the Council shall then have the power and authority to repair or repave any such sidewalk or footwalk.
(B) Alternate arrangements. The Council shall have the authority and it shall be within it sole discretion whether to repair or repave such walk by force account or by contract.
(1) Force account. If the Council elects to repair or repave the walk by force account, it shall keep an accurate account of the labor and materials used in making such repairs or repavement, which statement of costs shall be filed in the office of the City Clerk.
(2) Contract. If the Council determines to repair or repave by contract, the Council shall advertise for bids by publication in one of the newspapers of the city once a week for not more than two weeks, and all contracts let in pursuant of such advertisement shall be to the lowest responsible bidder; but nothing herein shall be construed to prevent the Council rejecting any and all bids made in pursuant of such advertisement.
(C) Costs. After any sidewalk is repaired, constructed or repaved in pursuance of the power herein granted, the cost thereof shall be paid out of the city treasury in the first instance and the Council, after allowing such costs, shall lay an assessment against the lot benefitted thereby, with a penalty of an amount set forth by Council from time to time added, and this assessment shall be placed in the hands of the City Collector and Treasurer, to be collected by him or her from such land or lot owner as city taxes are collected; and the cost of such work shall be a lien against such land or lot abutting on such walkway, taking priority over all other liens, except taxes, and shall be enforced as city taxes and assessments are enforced against real estate, or by other appropriate procedure.
(D) Fines. If the owner of any such land or lot, after having been given notice by the Mayor, as herein provided, to lay, repave or repair said sidewalk shall fail to do so within the time as herein provided, the Mayor may cause any such land or lot owner to be summoned before the Municipal Court Judge to show cause why a fine should not be imposed for such failure to repair, repave or construct the sidewalk as herein provided.
(E) Service of notices to nonresidents. If the owner of any such land or lot is not a resident of the city, the notice to him or her required by this regulation may be served upon him or her as notices are served under the laws of this state.
(1991 Code, § 18-14) Penalty, see § 93.999
Nothing in this subchapter shall be construed to relieve the adjacent property owner from liability for personal injury or property damage sustained by any person on account of any sidewalk becoming out of repair, and it shall be the duty of the property owner to keep the sidewalk adjacent to his or her property repaired, in good order, free and clean and, in case any damage is sustained by the city or recovered against it on account of such sidewalk not being kept repaired, in good order, free and clean, the damages, including costs and expenses, shall be recoverable by the city from the adjacent property and the owner thereof. In case any suit is brought against the city by any person on account of any sidewalk being out of repair, it shall be the duty of the Mayor to notify the owner of the property adjacent to the sidewalk where the accident on which such suit is based is alleged to have occurred, and such property owner shall have the right to employ counsel and to come in and defend the suit if he or she so desires; provided, that the provision for the giving out of notice by the Mayor is only directory, and shall not preclude the right of the city to recover as aforesaid from the property owner, although such notice is not given.
(1991 Code, § 18-15)
No permanent sidewalk or footwalk shall be constructed within the city by any person unless it conforms to the specifications therefor on file in the office of the Mayor of the city; provided, that under special circumstances the Council may, by an order entered of record, specify any change or variation from such specifications. All permanent sidewalks or footwalks built by the city, where the owners have failed to construct them, shall be built in accordance with those specifications; but if any variation is made in the construction of such sidewalks by the city, such variation shall not deprive the city of its right to recover the cost of the construction of the sidewalk, and such variation in the specifications shall be deemed to have been made under the authority of the Council if the sidewalks, after being so constructed, are accepted from the contractor by the Council.
(1991 Code, § 18-16)
Prior to the construction of any sidewalk outside the property lines of any street in the city, there shall be secured from the City Clerk a sidewalk permit, made out in substantially the following form:
ORIGINAL. |
Sidewalk Permit |
No. _____________ Elkins, W. Va., ________________ 20_____________ |
PERMIT is hereby issued to ___________________ owner and __________________ contractor, subject to the ordinances of the City of Elkins, West Va., and the approval of the Public Works Director, to construct a concrete sidewalk ____________ feet in width, and ____________ feet in length, in front of Lot ____________, Block ____________, of ____________ Subdivision, abutting and fronting on ____________ Street, Avenue, in the City of Elkins, West Va. |
Sidewalk to be built to conform to the lines, grades and specifications of the City of Elkins, West Va., and subject to the inspection and approval of the Public Works Director. |
This permit to be void upon the date of the advertisement of the lot or lots herein specified for public letting, providing the actual work of placing concrete walk shall not have been begun on that date. |
___________________________ City Clerk. |
Elkins, W. Va., ________________ 20_____________ |
The walk in front of Lot ____________, Block ____________, of ____________ Subdivision, abutting and fronting on ____________ Street, Avenue, in the City of Elkins, West Va., conforms to the lines and grades given by this office and are, to the best of my information, constructed in accordance with the City specifications. |
Grade and Line given __________________ |
Inspected ____________ ____________ Public Works Director |
Page ____________ Sidewalk Record. |
(1991 Code, § 18-17)
Forty-eight hours previous to the construction, repair or opening of any sidewalk, a notice shall be given the Public Works Director in order that the proper lines and grades may be established. No sidewalk shall be constructed, repaired or opened unless the lines and grades are either determined by or subjected to the inspection or supervision of the Public Works Director, as he or she may direct.
(1991 Code, § 18-19)
(A) Upon the completion of the construction, repair or opening of the sidewalk, such permit shall be approved by the Public Works Director and, at the same time, a certificate shall be given, governing the amount of work done in the construction, repair or opening of such sidewalk, if desired by the property owner or the contractor.
(B) The certificate given shall be in substantially the following form:
Dist. No. _____________ Elkins, W. Va., ________________ 20_____________ |
THIS IS TO CERTIFY, that the sidewalk on the ___________________ Street, Avenue, frontage of ___________________ of Lot No ___________________ Block No. ___________________ owned ___________________ by ___________________ was finished ________________ 20____________, by _________________, under contract dated ________________ 20____________, in accordance with the specifications of the City of Elkins and under my supervision and inspection. The walk is_______ feet in length and ________ feet in width, and contains ___________ square feet, which, at the contract price of ______________ cents per square foot, amounts to $_________________. I hereby accept the walk subject to the approval of the Mayor and Council of the City of Elkins. |
Extra: _______________________________________ |
_______________________________________ |
Public Works Director. |
THIS IS TO CERTIFY, That the excavation or embankment has been measured and calculated on the above described walk and found that there is due the contractor for excess excavation or embankment as follows: |
Cubic yards Excavation at ________________ per cubic yard, $________________ |
Cubic yards Embankment at ________________ per cubic yard, $________________ |
Cubic yards Rock at ________________ per cubic yard, $________________ |
Total cost of improvement, $________________ |
________________ Public Works Director. |
Recorded in the office of the City Clerk of Elkins, West Virginia, in Sidewalk Record Book ________________ Page ________________ |
(Public Works Director’s Note Book ________________ Page ________________) |
(1991 Code, § 18-20)
A record of the sidewalk permits and certificates of work done shall be kept in the office of the City Clerk and in the office of the Public Works Director, for inspection at all times. At the time of the determination of the grades and lines such determinations shall be fully described and set forth by the Public Works Director and entered in a record kept for that purpose.
(1991 Code, § 18-21)
Any citizen desiring that sidewalk or other grades and lines be established shall make application, in writing, to the Council, on a form to be determined by the Public Works Director and, should the Council see fit to establish the grade and lines requested, the application shall be referred to the Public Works Director, with instructions to establish such grades and lines and to make report back to the Council, in writing, on the back of the application, giving the grades and lines as established upon true meridian and elevation above sea level, as established by the United States geological survey.
(1991 Code, § 18-22)
Cross-reference:
EXCAVATIONS
It shall be unlawful for any person to cut into or otherwise damage or excavate any street, sidewalk or public place within the city for the purpose of connecting property with water, sewer or gas lines thereunder or for any other purpose, except pursuant to a permit as provided by this subchapter.
(1991 Code, § 18-23) Penalty, see § 93.999
Statutory reference:
Authority of city to provide for the opening and excavation of streets, sidewalks and public places belonging to the city, and to regulate the conditions under which such openings may be made, see W.Va. Code § 8-12-5(2)
No person shall, without a permit so to do and except in compliance with all provisions of this subchapter, make any excavation whatever upon or within ten feet of any street, sidewalk, footwalk, public park or square; nor shall excavation of any kind be made upon the land of another without his or her consent; and any person making an excavation within ten feet of any street, sidewalk or footwalk shall keep such sidewalk or footwalk so protected that persons and property cannot fall therein, except by breaking through proper and sufficient guard rails or other adequate protection.
(1991 Code, § 18-24) Penalty, see § 93.999
(A) Any person desiring, for any purpose, to cut, open or otherwise excavate any street, sidewalk or public place, paved or unpaved, in the city shall apply to the Public Works Director for a permit so to do.
(B) The application shall be in form as prescribed by the Public Works Director and shall contain such pertinent information as may be required by him or her including, but not limited to, the following:
(1) The purpose of the proposed excavation;
(2) The site at which the work is to be done;
(3) The date work is to begin and the expected duration of the work; and
(4) The name and address of the person for whose benefit the proposed work is to be done and who shall be responsible for all required safeguards, the diligent prosecution of the work, the restoration of the surface, the payment of all expenses incurred and the compliance with all requirements of this subchapter.
(C) The application shall be signed by such person responsible or by someone authorized by him or her or by the plumber or other contractor employed by him or her to do the work.
(1991 Code, § 18-25)
(A) No excavation permit shall be granted, unless it appears, to the satisfaction of the Public Works Director, that the excavation is necessary to the health, safety or welfare of the person upon whose behalf the excavation is to be made; and the connection of property to a water, sewer or gas main shall be deemed sufficient under this section.
(B) No excavation permit shall be granted until the applicant therefor or someone on his or her behalf has made a cash deposit or given bond to the city in such amount as may be deemed by the Public Works Director sufficient to cover the cost of safeguards, disposal of excavated dirt and the like, and restoration of the surface of the place of excavation so as to place it in as good a condition as it was in prior to the making of the excavation. Each such bond shall be payable to the city, shall have corporate surety, shall be approved by the City Attorney and shall be conditioned that the work be diligently and skillfully prosecuted, barring unforeseeable circumstances beyond control of the person doing the work, that all necessary safeguards be maintained, that all excavated materials not required for refill be disposed of as provided by this subchapter, that the surface of the place of excavation and not less than ten feet in all directions from the outer perimeter thereof be placed in as good condition as it was in immediately prior to the commencement of the work and to the reasonable satisfaction of the Public Works Director that all requirements of this subchapter shall be complied with, and that any defective work which appears within five years from the date of acceptance of the restoration by the Public Works Director shall be subject to repair by the city at the expense of the permit holder.
(1991 Code, § 18-26)
Any gas, water or other company, operating under a franchise from the city and which, in the course of its business and the exercise of its franchise rights, finds it necessary to tear up the streets and such sidewalks, at numerous locations shall not be required in such cases to make the deposit herein required; but immediately upon the tearing up of any street or sidewalks, such company shall notify the Public Works Director, and shall repair the surface to the satisfaction of the Public Works Director and shall in all other respects comply with the provisions of this subchapter; and, in the case of failure on the part of any such company to comply therewith, the Public Works Director shall repair the site of the excavation and the company shall immediately pay the cost thereof and shall be subject to fine for failure to comply; provided, that where any location is torn up by any company and the provisions of this subchapter are not complied with, in addition to the liability of the company itself, the individuals actually tearing up the street or sidewalk or the person failing to carry out the provisions of this subchapter, shall, upon conviction, be punished as provided by § 93.999.
(1991 Code, § 18-27) Penalty, see § 93.999
Any person making an excavation shall do the work carefully and professionally and shall diligently prosecute such work to completion without undue delay. Materials used and methods employed in filling, tamping and closing excavations and in restoring the surface shall comply with all requirements of the Public Works Director.
(1991 Code, § 18-28)
All excavation sites shall be provided with all necessary safety devices to protect persons and animals from falling into ditches or pits. Such devices shall include, inter alia, warning signs, lamps and barricades; and, where practicable, secure planking for pedestrians to cross upon, which shall be well lighted, the entire way, between sunset and sunrise.
(1991 Code, § 18-29) Penalty, see § 93.999
Between sunset and sunrise, upon bridges for maintaining traffic over excavations, the roadway shall be indicated by a sufficient number of lights so as to clearly identify the course of the roadway and the edges thereof; and the edges of the bridge itself shall be indicated by red lights or flares.
(1991 Code, § 18-30) Penalty, see § 93.999
All persons causing any excavations to be made for sidewalks shall have the place of excavation properly graded and protected and shall properly barricade such place for the protection of the public. Whenever necessary, they shall, at their own expense, properly erect masonry or steel construction or a retaining wall sufficient to properly support the adjoining earth. Such retaining wall shall be properly coped or provided with an iron railing to guarantee safety to the public.
(1991 Code, § 18-31) Penalty, see § 93.999
(A) No person engaged in excavating or having charge or control of excavation or who may be engaged in or may have charge or control of conveying material from excavations shall deposit or permit to be deposited, in any manner, upon the surface of a sidewalk or any paved street or other public place, by placing, spilling, dropping or tracking from wheels of vehicles or from the feet of animals, any earth, clay, mud, sand, gravel or other excavated material; and all such sidewalks, streets and public places adjacent to excavations or traversed by vehicles in the process of conveying material from such excavation or in returning from the place of deposit to the place of excavation, shall be covered with planking so far as may be required to prevent any mud, earth, clay or other material from the excavation or from the place of deposit from reaching the surface of such roadway.
(B) The excavations referred to in this section include those made on private as well as public property.
(1991 Code, § 18-32) Penalty, see § 93.999
STREET AND ALLEY ABANDONMENT PROCEDURES
Council finds and declares that within the city there are one or more streets, alleys and public rights- of-way that have not, do not or will not in the future serve any public purpose; that exist only by means of appearance on plats or maps of sections of the city; that it would be in the best interest of the city to abandon and vacate such streets, alleys and public rights-of-way, thereby absolving any actual or contingent liability; and that would otherwise permit more appropriate land use within the city thereby promoting orderly development of the city.
(Ord. 185, passed 11-20-2014)
Council, pursuant to the authority granted it by the Charter and the West Virginia Code, reserves the right to close, abandon, discontinue for public use any part or all of any street, alley, land, road or other designated travel way presently owned by or dedicated to the city.
(Ord. 185, passed 11-20-2014)
(A) Any landowner whose land abuts on any street, alley, lane, road or other designated travel way seeking to close, abandon, discontinue for public use any part or all of such right-of-way shall file with the City Clerk:
(1) A petition to Council;
(2) The petition shall be accompanied by an engineer’s or surveyor’s map of such right-of-way together with abutting property owners; and
(3) A list of all owners of property abutting on such right-of-way.
(B) Before acting to close, abandon, discontinue for public use any part or all of such right-of- way, the Council shall accept the petition and refer it to the Municipal Properties Committee to fix a time and place for a public hearing on the petition. Such public hearing shall be held not less that 15 days after the date and place have been so fixed. The Municipal Properties Committee shall cause notice of the time and place of such hearing and the purpose thereof to be published as a Class I legal advertisement in compliance with the provisions of W.Va. Code Art. 59-3. The notice shall be published at least 15 days before such hearing. The applicant shall cause to be served, at least 15 days before such hearing, in the manner provided by law for the service of notices and process a notice showing the time, place and purpose of such hearing, upon every owner of property, and every person holding a lien thereon, abutting such street, alley, lane, road or other designated travel way. The affidavit of publication of such notice shall be filed with the Municipal Properties Committee at or before the hearing as part of the record in the proceedings. After considering the evidence presented at the public hearing, as well as any other documented evidence which may come before the Municipal Properties Committee, the Committee shall report its recommendations to Council at the next Council meeting. The recommendations of the Municipal Properties Committee to Council may include a recommendation as to a value to be placed on the right-of-way or portion thereof to be considered for abandonment.
(C) Upon receipt of the Municipal Property Committee’s recommendations, Council shall direct the preparation of an ordinance in the manner prescribed by law. Council shall then vote on passage or rejection of the ordinance by a simple majority vote of the members present at a regular or special meeting at which a quorum is present.
(Ord. 185, passed 11-20-2014; Ord. 285, passed 7-1-2021)
The landowner shall deposit an amount set forth by Council from time to time at the time of the filing of the petition for each quitclaim deed to cover the administrative cost, cost of legal publication, the cost of preparation of the deed, and recordation thereof. No part of the filing fee paid pursuant to this section shall be returnable to the landowner or petitioner.
(Ord. 185, passed 11-20-2014)
Council will not approve an abandonment or vacation of any street, alley or public way under the following conditions:
(A) If the street, alley or public way serves or is expected to serve any public purpose;
(B) If any person or property, not consenting to such vacation or abandonment, is found to suffer special damage; and
(C) If the vacation or abandonment unreasonably impedes the flow of traffic.
(Ord. 185, passed 11-20-2014)
The ordinance vacating and abandoning the street, alley or public way shall provide that the Mayor execute and deliver to the proper party a quitclaim deed for that portion of the street, alley or public way to go to such property owner. Any such quitclaim deed shall reserve all necessary water, sewer and other utility easements.
(Ord. 185, passed 11-20-2014)
TREES
(A) It shall be unlawful for any person to plant or maintain upon his or her property or upon any street adjoining thereto any tree commonly known as the North Carolina poplar or any other shade tree which, by its nature, will tend to plug up or damage sewers, sidewalks, streets or other property.
(B) If any such tree be planted after the effective date of this code, it shall be the duty of the Superintendent of Streets to immediately cut down and destroy it, provided, that if the Superintendent of Streets does not have personal knowledge that such tree has been planted since that time, a notice and proceeding, shall be had before the Council; and, if it be ascertained by the Council that such tree was planted since the effective date of this code then such tree shall be declared a nuisance and the owner required to abate the nuisance.
(1991 Code, § 18-10) Penalty, see § 93.999
Statutory reference:
Authority of Council to provide for the protection of shade and ornamental trees, whether on public or private property, and for the removal of limbs of trees when in a dangerous condition, see W.Va. Code § 8-12-5(29)
In accordance with a request made by the Elkins Main Street Project, the city, by committee appointed by the Mayor, shall ensure that the following guidelines are adhered to with respect to trees in the downtown:
(A) Flowering trees shall receive pruning;
(B) Application of organic fertilizer shall occur in spring and early fall;
(C) Girdling of trees shall be prohibited and particular care shall be taken in circumstances where guy wire maintenance is required;
(D) Mulching in spring shall occur;
(E) Tree areas shall be maintained weed free;
(F) Regular maintenance shall occur, including observation for insect infestation and disease or fungus; and
(G) Necessary watering shall occur in times of drought and close monitoring of water situation shall occur in the first three years after a tree is planted.
(Ord. passed 3-4-1993)
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ELKINS TREE BOARD. The body which advises the city on matters affecting the urban forest.
MUNICIPALITY. The City of Elkins, Randolph County, West Virginia.
PARK. Includes all public parks, the ownership and control of which as vested in the city.
PERSON. Any person, firm, partnership, association, corporation, company or organization of any kind.
PROPERTY OWNER. The person owning designated property as shown by the County Assessor’s plat of the City of Elkins, as the case may be.
PUBLIC PLACES. Includes all public rights-of-way owned by the City of Elkins, Randolph County.
PUBLIC TREES. All shade and ornamental trees now or hereafter growing on any street or any public right-of-way or grounds owned or controlled by the city.
REMOVE. The cutting down, damaging or taking of public trees.
STREET or HIGHWAY. The entire width of every public way or right-of-way when any part thereof is open to the use of the public, as a matter of right for the purpose of vehicular and pedestrian traffic, and extending from the property line to property line.
TREE ARBORIST. The person within the committee who provides technical expertise and advice to the City Tree Board.
URBAN FOREST. All trees located on city-owned or controlled property.
(Ord. 076, passed 7-3-2008; Ord. 235, passed 4-6-2017)
There is hereby created and established a City Tree Board for the city of which will consist of no less than six and no more than eight members, who are citizens and residents of Randolph County recommended by the City Tree Board, and who shall be appointed by the Mayor with the approval of the City Council. The members will come from different interest groups including, but not limited to, homeowners, tree professionals and City Council. Membership on Council does not disqualify any person for appointment to the City Tree Board, if otherwise qualified, however, not more than two members of Council may be so appointed. At least one of the members of the City Tree Board shall be a member of Council.
(Ord. 076, passed 7-3-2008; Ord. 235, passed 4-6-2017; Ord. 284, passed 7-1-2021)
The term of the persons to be appointed will be three years. The term of two members appointed to the first Board will be only one year and the term of two members of the first Board shall be for two years. Following the terms of the members of the first Board, the terms shall be three years. In the event that a vacancy shall occur during the term of any member, a successor may be appointed for the unexpired portion of the term. Members may serve consecutive terms without restriction. Any member who is unable or unwilling to serve on the Tree Board may be dismissed by the Board, due to continual or consecutive absences, by a majority vote of members present at any meeting. Replacement of any member who is dismissed shall be done in the same manner as provided for herein.
(Ord. 076, passed 7-3-2008; Ord. 235, passed 4-6-2017)
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