City of Berlin, NH - Chapter 13

* Cross References: Cemetery trustees created, § 2-41; composition and powers and duties of the cemetery trustees, § 2-71 et seq.; public works department, § 2-347 et seq.; buildings and building regulations, Ch. 4; animals, Ch. 3; fire prevention and protection, Ch. 6; health, Ch. 7; nuisances, § 7-16 et seq.; housing, Ch. 8; license and regulation of occupations and businesses, Ch. 9; peddlers, solicitors and itinerant vendors, § 9-151 et seq.; taxicabs, § 9-261 et seq.; mobile homes and manufactured housing and mobile home parks, Ch. 10; solid waste, Ch. 12; city sanitary landfills, § 12-51 et seq.; subdivisions, Ch. 14; traffic and vehicles, Ch. 15; specific street regulations, § 15-31 et seq.; stopping, standing and parking, § 15-56 et seq.; bicycle regulations, § 15-101 et seq.; subdivisions, Ch. 14; traffic and vehicles, Ch. 15; utilities, Ch. 16; zoning and land use, Ch. 17.

(c) Fines and penalties. Any owner/keeper found violating any provision of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than twenty-five dollars ($25.00) for each offense. If dog is unlicensed, owner/keeper shall pay the fine of twenty-five dollars ($25.00), dog may be impounded in accordance with section 3-25 et seq.

No person shall drink any alcoholic beverages or alcoholic liquor as defined in RSA 175:1 upon any public street, or any public highway, public sidewalk, municipal parking lot or municipal park within the limits of the city; provided, however, that the police commission may grant permission to any person for the use of alcoholic beverages within the confines of a public park in connection with any gathering or function on such conditions as it may deem advisable.

(a) No person or commercial or private property owner or entity shall put or place or cause to be put or placed by mechanical means or otherwise in or on any street, lane, bridge, alley, sidewalk or other public place in the city, any house dirt, ashes, garbage, household refuse, shreds, shavings, filth, suds, offal, bark, brush, sawdust, grass or rubbish of any nature. No person or commercial or private property owner or entity shall deposit or cause to be deposited any snow or ice on or against any fire hydrant, street, lane, bridge, alley, sidewalk, or other public rights of way except in a manner as provided for in paragraph (b) of this Section. Additionally excepted will be that the city, during the snow plowing process, may store snow upon selected sidewalks until such time as scheduled snow removal by the city occurs.

(b) A person may deposit or place snow from private property either along the street side of their property line or along the property line of property owners either across the street or to either side, so long as these property owners have given written permission to do so. All such snow must be placed in a smooth manner along the existing snow banks and will not interfere with the public ways by protruding into the roadway or creating traffic hazards or obstructions to any neighboring properties.

(g) Any person or commercial or private property owner or entity found violating any element of this section shall be subject to a fine of not less that $50 plus penalty assessment, plus other costs as defined in subsection (f) above. Each violation shall be deemed a separate offense. Second violations will be subject to a $100 fine plus penalty assessment, with subsequent violations assessed with a maximum fine of $1,000 plus penalty assessment.

(a) No person shall place or establish any awning or shade before his or her place of business or dwelling house, over any part of any street or sidewalk, unless it shall be composed of cloth and safely fixed and supported by strong iron rods or railings, so as not to inconvenience pedestrians, and so that the lowest part of the support or frame work of such awning or shade shall be at least seven (7) feet above the sidewalk and the lowest part of the cloth of such awning or shade shall be at least six (6) feet, six (6) inches above the sidewalk.

(b) No sign or other fixture or construction shall be placed on or supported from any sidewalk or street. No person shall establish or maintain any sign, advertisement, or other construction over any part of any street, lane, alley, or sidewalk unless such sign, advertisement or other construction, shall be safely and securely fixed and supported and the lowest part thereof at least eight (8) feet above the sidewalk. No such sign, advertisement or other construction shall be established or maintained without first having obtained a permit from the city engineer and building inspector. Persons applying for a permit to erect a sign or advertisement shall state in writing its size and weight, the nature of the material of which it is to be constructed and the manner in which it is to be supported.

No person shall without the permission of the city engineer, cut, prune, break, climb, injure or remove any living tree in a public street or sidewalk or cut, disturb or interfere in any way with the roots of any tree on a public street or sidewalk or spray with any chemicals or insecticides any tree in a public street or sidewalk or place any rope, sign, poster or other fixture on a street or guard in a public street or sidewalk or injure, misuse or remove any device placed to protect such tree on a street or sidewalk.

Owners of land adjoining a public street or sidewalk desiring to establish or repair any portion of a driveway giving access to their land but within the limits of the street or sidewalk, shall petition the planning board and the office of the city engineer for consent to the establishment or repair of such portion of the driveway as lies within the limits of the street or sidewalk. The office of the city engineer may give written permission for the establishing or repairs of the driveway. As far as practical, all owners of land desiring driveways, before sidewalks are constructed, shall notify the planning board and the office of the city engineer where such driveways are to be located before such walks are constructed.

The following exceptions shall be authorized to permit the establishment of a snowmobile trail that will cross municipal property at the base of Mount Jasper, along the outside perimeter fence of the running track proceeding along the Dead River, crossing the southwesterly portion of Memorial Field and permitting the crossing of Hillside Avenue at its intersection of Russell Street and the use of the easterly sidewalk on Hillside Avenue and between the rail crossing and the intersection of Hillside Avenue and Willow Street, then extending through the Dead River Park crossing over Cole Street at the Salvation Army driveway entrance to the easterly sidewalk on Cole Street being restricted to use the sidewalks to access the municipal parking lot east of Cole Street and service stations along Green Street.

The following exception shall be authorized to permit the establishment of a downtown snowmobile trail on the sidewalk on the south side of East Mason Street from the rail road bed at East Mason Street to the west crossing Unity Street and continuing along the south side sidewalk crossing both Mason Street Bridges to Main Street, crossing Main Street and continuing along the south side sidewalk of Mason Street to Pleasant Street, crossing Pleasant Street and continuing along the south side sidewalk of Mason Street to the southeast corner of Cole Street, turning south and continuing along the east side sidewalk of Cole Street to York Street, crossing York Street and continuing along the east side sidewalk of Cole Street to the point on the east side sidewalk of Cole Street immediately across the street from the entrance of the Dead River Park.

The following exception shall be authorized to permit the establishment of a branch of the aforementioned snowmobile trail which departs from the south side sidewalk of Mason Street at the Tondreau Parking Lot entrance and continues through the parking lot to the pedestrian bridge between the parking lot and the Public Service of New Hampshire Park on the Tondreau Peninsula, continuing across Public Service of New Hampshire park land to the Smith Hydro station at Glen Avenue, continuing across Glen Avenue to the Glen Avenue Park to a location between the gazebo and the tennis courts.

The following exception shall be authorized to permit the establishment of a snowmobile trail from the rail road bed as it intersects with the south side sidewalk of Coos Street, continuing east on the south side of Coos Street to Champlain Street, crossing Champlain Street and continuing on the south side of Coos Street to Burgess Street, crossing Burgess Street and continuing on the south side of Coos Street to Hillsboro Street, crossing Hillsboro Street and continuing on the south side of Coos Street to the intersection of Hutchins Street, crossing Coos Street from a point directly across from the south end of the Hutchins Street sidewalk at Coos Street, continuing northerly along the east side of Hutchins Street to the Dummer Yard and connecting to the State trail system at this location. Said trail shall travel over portions of the sidewalk and/or paved shoulder areas along Coos Street and Hutchins Street and shall cross all intersecting streets along Hutchins Street.

(b) The city clerk may issue a sidewalk permit to any local merchant who wishes to use the public sidewalk, in front of their business for the purposes of displaying or advertising merchandise, goods or services. Each applicant must present to the city clerk at the time of application a certificate of insurance demonstrating that they have property, casualty or general business liability insurance in effect to cover said activity. The sidewalk permit shall be good for six (6) months from the date of issue and may be reissued if the permittee has not violated this section.

(c) The applicant may use a maximum of two (2) feet, adjacent from the edge of their property or building and up to the full width of their store or property onto the public sidewalk. The permitted use of the public sidewalk may not restrict the safe and unobstructed travel (viatic use) of all pedestrians. All items, displays and merchandise shall be secured so as not to create a safety hazard and must be removed from the public sidewalk at the end of each business day, but no later than nine o'clock each night, unless otherwise extended by a simple vote of the city council.

It shall be unlawful for any person to build upon the front walls of any building, any portico, porch, bay window, balcony or any other projection over the sidewalk or street; provided, however, that electric signs may be erected on the front walls of any building in the city, providing these signs are fastened to the building and do not project out over five (5) feet from the same, and not less than twelve (12) feet above the sidewalk, providing a permit has first been obtained from the building inspector and the work done under his supervision.

No person shall build or erect any fence, retaining wall, or other structure on the line between his property and any street, sidewalk, or other public property of the city without having first obtained from the office of the city engineer a written permit to build or erect such structures, and they shall be constructred in accordance with the requirements of the city engineer.

All property owners shall be required to display their designated address numbers on the address sides of their building(s) in a clearly visible area. Such display must be a least three (3) inches in size and may be either numerical or alphabetical representations of the assigned address number in a contrasting color, and the preferenced location to be on the address side of the house or building.

To be eligible for a Tourist Oriented Directional Sign under this ordinance, an institution must be located in the City of Berlin and be a business, service, or activity facility as defined by the State of NH DOT Bureau of Traffic manual titled, “Tourist Oriented Directional Signs dated January 1, 2006 (hereinafter “the manual”). (copies of this manual are available for review at City Hall in the Public Works & Planning Departments) (Ord. of 4-7-08)

The Public Works Director shall remove and transport for storage any Tourist Oriented Directional Sign that remains in place more than 30 days after an order by the Public Works Director to remove the sign has become final. Reasonable care shall be exercised during such removals. However, the Public Works Director shall not be responsible for damage to any device occasioned by removal, transport or storage, nor will the Public Works Director be responsible for storage over 30 days.

Excavation shall mean any operation in which earth, rock, or other material below the ground is moved or otherwise displaced, by means of power tools, power equipment or explosives and including grading, trenching, digging, ditching, drilling, augering, tunneling, scraping and cable or pipe driving, except tilling of soil and gardening or displacement of earth, rock or other material for agricultural purposes, and except installation and maintenance of signs performed by the city or department of transportation.

Facility shall mean pipe, pipeline, tube, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, wire tower, pole, pole line, anchor, cable, junction box, or any other material, structure, or object of any kind or character, whether enumerated herein or not, which is or may be lawfully constructed, left, placed or maintained in, upon, along, across, under, or over any public place.

No person or utility shall excavate in a public place without holding a valid excavator's license and without first obtaining a street opening permit, as provided for in this article, for such work from the city. The public works department shall issue the excavator's license upon receipt of an application therefor and the annual license fee, upon satisfaction that the applicant is competent to carry on the business of excavating. Persons or utilities without a previous work history with the city may be required at the discretion of the director to submit references from responsible municipal officials from other municipalities. No person or utility possessing such license shall allow his or her name to be used by any person or utility, directly or indirectly, either to obtain a permit or to do any work under this license; provided, however, that nothing herein shall be construed to prohibit a licensed excavator from doing such work through an authorized agent or employee who is directly and continuously supervised by him while in the performance thereof. A license issued to an excavator may be revoked after notice and hearing, if it is determined by the city that the licensed excavator has willfully disobeyed any portion of this article or the rules and regulations. The hearing shall be conducted by the City Manager. The Berlin Water Works shall be exempt from the provisions of this section that require an annual application and license fee. (Ord. of 5-20-02)(Ord of 11-15-04)

No person or utility shall make any excavation, modify, or fill any excavation excluding previously permitted locations in any public place without first obtaining a permit to do so from the city except as otherwise provided in this article or the rules and regulations. Any excavation within the city’s streets, sidewalks, esplanades or other pub-lic right-of-way shall only be permitted in accor-dance with this Code or the rules and regulations. The granting of such a permit shall cover all required activities to conform with this article and the rules and regulations.

(a) No street opening permit shall be issued unless a written application on a form provided by the city for the issuance of a street opening permit is submitted to and approved by the city. The written application shall contain such informa-tion as reasonably required by the public works department and as identified in the rules and regulations, Applications for large excavations shall be submitted at least thirty (30) calendar days prior to the anticipated excavation. Applica-tions for small excavations shall be submitted at least two (2) business days prior to the antici-pated excavation. The permit shall expire thirty (30) days from the date of issuance, absent a different expiration date set forth on the permit

(d) The applicant agrees to be responsible for the quality of the excavation work done within the municipal right of way pursuant to the scope of the permit. The applicant further warranties to the city that for a period of two (2) years following the completion date of the excavation, the appli-cant shall be responsible for any damage to underground utilities or structures, to above ground structures, or to the city’s right-of-way improve-ments arising from settling or other causes re-lated to or arising from the excavation work. (Ord of 11-15-04)

(c) Permits shall be granted only if the applicant has properly notified all utilities, typically done by contacting Dig Safe, and obtaining an authorization number to proceed. Any conflicts with utilities shall be the sole responsibility of the applicant and shall be resolved to the utilities’ satisfaction and per the city’s Technical Design Standards and Guidelines.

Each year on or before March first, each utility shall submit to the public works department its planned work program for the ensuing year, which shall not include emergencies defined in section 13-53 and normal house service lines. Thereafter, the city shall have the right to deny permit applications for excavations not specifically contained within each utility’s respective planned work program, except for emergencies and house service lines. (Ord of 11-15-04)

(1) Administrative: This fee shall be established in an amount reasonably calculated to cover the city’s direct cost of labor and necessary to administer this article and the rules and regulations for the rehabilitation of city streets primarily due to excavations. This fee shall include but shall not be limited to the city’s direct cost of labor for engineering reviews, construction inspection and testing.

(b) Upon permit application, the administrative charge, and estimated permanent pavement restoration charge shall be paid to the street openings clerk unless waived by the public works department as provided below. No permit shall be issued without appropriate payment of fees. Utility applicants in good standing shall be granted the option of being invoiced by the city for these fees.

(a) Any person or utility failing to comply with or violating any provision of this article or the rules shall be served by the public works department with written notice stating the nature of the failure or violation and providing a reasonable time limit for the necessary corrective actions. Such person or utility shall, within the period of time stated in such notice, permanently cease or correct all failures or violations.

(1) Any permittee or party who continues to violate any section of this article or the rules and fails to correct violations in a timely manner shall receive no further permits and will be invoiced for permanent repairs as appropriate until such time as the city is satisfied that the permittee or party shall have corrected all violations in compliance with the terms of this article and the rules and regulations.

Any person or utility found to be conducting any excavation activity within the public right-of-way without having first obtained the required permit(s) shall immediately cease all activity (exclusive of actions required to stabilize the area) and be required to obtain a permit before work may be restarted. A surcharge of five hundred dollars ($500.00) shall be required in addition to all applicable permit fees. This provision shall not apply to excavations conducted for emergency action as discussed in section 13-72. (Ord of 11-15-04)

(a) Whenever a person shall deem themselves aggrieved by an order or decision made by the director in applying or interpreting this ordinance or any rules or regulations adopted by the director in furtherance of this ordinance, the person may file an appeal to the city manager within ten (10) days of the date of the order or decision, and the person shall be afforded a hearing on the matter before the city manager, and unless and until the appealed order is revoked, such order shall remain in force and be forthwith complied with by the person.

(c) In cases where compliance with such order made by the public works authority would cause undue hardship, the city manager may extend the time limit of such order, or may grant exceptions to, or waive requirements of, or grant a variance from the specific provisions of the rules, subject always to the rule that the city manager shall give due consideration to the purposes of the rules in preserving public safety and convenience, integrity of public infrastructure, and the operational safety and function of the public right-of-way.

(a) Safe crossings. The permittee shall in general maintain safe crossings for two (2) lanes of vehicle traffic where possible and safe crossings for pedestrians at intervals of not more than two hundred (200) feet. If any excavation is made across any public street, alley or sidewalk, adequate crossings shall be maintained for vehicles and for pedestrians. If the street is not wide enough to hold the excavated material without using part of the adjacent sidewalk, a passageway at least forty_eight (48) inches in width shall be maintained along such sidewalk line.

(b) Barriers and warning devices. It shall be the duty of every permittee cutting or making an excavation in or upon any public place, to place and maintain barriers and warning devices necessary for safety of the general public. Traffic control in the vicinity of all excavations affecting vehicular, pedestrian and other traffic shall be subject to final review and approval of the director and police chief. Barriers, warning signs, lights, etc., shall conform to the latest edition of the Manual on Uniform Traffic Control Devices (MUTCD). Warning lights shall be electrical markers or flashers used to indicate a hazard to traffic from sunset of each day to sunrise of the next day.

(d) Closing of streets. When traffic conditions permit, the director, with the approval of the police and fire departments of the city, may give written approval (or by verbal approval in the case of emergency), permit the closing of streets and alleys to all traffic for a period of time prescribed by him or her, if in his or her opinion it is necessary. The written approval of the director 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. In case of emergency work during non-business hours, the utility having such emergency shall contact the police and fire departments by phone before closing a street to traffic.

(e) Warning signs to channel traffic. Warning signs shall be placed in accordance with the applicable section of the most current edition of the MUTCD in advance of the construction operation to alert traffic within a public street, and cones or other approved devices shall be placed to safely channel traffic, in accordance with the instructions of the director, after his or her review of the proposed traffic control measures for the project.

(g) Shifting traffic to opposite side. The permittee may shift traffic to the opposite side of the roadway to maintain the above required lane width. The permittee may only make such shift with the approval of the director and police chief following proper review of detour plans to insure adequate safe two-way traffic flow and proper number and placement of traffic control devices, including flaggers and/or police officers.

The permittee shall not interfere with any facility without the written consent of the city and the owner of the facility If it becomes necessary to relocate a facility, this shall be done by or with the written consent of its owner. No facility owned by the city shall be moved to accommodate the permittee unless the cost of such work be borne by the permittee. The cost of moving privately owned facilities shall be similarly borne by the permit_tee. The permittee shall support and protect by timbers or otherwise all pipes, conduits, poles, wires or other apparatus which may be in any way affected by the excavation work, and do everything necessary to support, sustain and protect them under, over, along or across the work. The permittee shall secure approval of method of support and protection from the owner of the facility In case any of the pipes, conduits, poles, wires or apparatus should be damaged, and for this purpose pipe coating or other encasement or devices are to be considered as part of a substructure, the permittee shall promptly notify the owner 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. It is the intent of this section that the permittee shall assume all liability for damage to facilities and any resulting damage or injury to anyone because of such facility damage and such assumption of liability is a contractual obligation of the permittee the permittee shall inform itself as to the existence and location of all underground facilities and protect the same against damage.(Ord of 11-15-04)

(a) Whenever the use of a substructure is abandoned, except the abandonment of service lines designed to serve single properties, the person or utility owning, using, controlling, or having an interest therein, shall within thirty (30) days after such abandonment, file with the city a statement in writing giving in detail the location of the substructure so abandoned. If such abandoned substructure is in the way, or subsequently becomes in the way, of an installation of the city or any other public body, the owner of such substructure, after having been contacted by the excavator, shall establish if the substructure is abandoned and make the first cut or tap before allowing the substructure to be removed by the excavator.

All paved area restorations, including temporary and permanent work within any street, driveway, or sidewalk shall be performed in accordance with the city’s Code of Ordinances and Technical Design Standards and Guidelines available through the director, and according to the rules and regulations promulgated by said authority pursuant to section 13-52 of this Code. The director may choose to waive specific repair requirements for just cause, including utility work being conducted prior to or in conjunction with a planned city/ NHDOT construction project.

After an excavation is commenced, the permittee shall carry out with diligence and expedition all excavation work covered by the street opening permit and shall promptly complete such work and restore the street or sidewalk as specified in this article and the rules and regulations enacted by the public works authority. The permittee shall perform such restoration work so as not to obstruct, impede or create a safety hazard to public travel.