Newark Municipal Code Ch. 8.28 Access Controls

The increasing tendency to install mechanical gates in order to control vehicular and pedestrian access to private streets, parking areas, and mall areas for the purpose of improving security, creates a counterbalancing public safety hazard by restricting access of public safety vehicles or personnel, absent measures which guarantee access by such vehicles or personnel in a timely, nondestructive and otherwise effective manner. The purpose of this chapter is to ensure that such measures are taken.

(Ord. 201 § 1 (part), 1984)

As used in this chapter, the following terms shall have the following meanings:

A. "Mall areas" means any privately, individually, jointly or commonly owned, enclosed or unenclosed common area established for vehicular or pedestrian use, and from which access is gained to more than one retail shop or store or professional or other commercial office or more than four dwelling units.

B. "Mechanical gates" means a gate, crossbar, door or other obstructive device which is used for the purpose of restricting, controlling or obstructing entry or exit by motor vehicles or pedestrians to or from private streets, parking areas, or mall areas, and which is not manned on a twenty-four-hour, seven-day per week basis by a person capable of providing immediate access for public safety vehicles or personnel.

C. "Parking areas" means any privately owned parking lot or similar parking area used for the parking of motor vehicles by those shopping at a retail commercial establishment or residing in or visiting a subdivision, apartment complex, condominiums or other residential development containing more than four residential dwelling units.

D. "Private street" means a street which is not open to use by the public at large and which is used for the purpose of providing vehicular access to a subdivision, apartment complex, condominiums or other residential development which includes more than four residential dwelling units.

E. "Responsible party" means the owner, agent, lessee, resident custodian or any other person who has responsibility for the direct or immediate control of the operation of mechanical gates and who is responsible for insuring that public safety vehicles or personnel have immediate access to restricted areas.

(Ord. 201 § 1 (part), 1984)

From and after the date the ordinance codified in this chapter becomes effective, it is unlawful for any person to install a mechanical gate unless either:

A. The police chief certifies in writing that the timely, nondestructive or otherwise effective access of public safety vehicles or personnel will not be impaired; or

B. The mechanical gate is equipped with an emergency override control device which permits access by public safety vehicles or personnel in a manner which the police chief determines is timely, nondestructive and otherwise effective.

The emergency override control device shall be a key-operated type switch, lockbox key control or similar mechanism approved by the police chief.

(Ord. 201 § 1 (part), 1984)

From and after the date on which the ordinance codified in this chapter becomes effective, no person shall install a mechanical gate unless a permit therefor has first been issued by the police chief.

The permit may be denied on grounds either:

A. That the applicant has not proposed installation of an emergency override control device and the mechanical gate would impair timely, nondestructive or otherwise effective access by public safety vehicles or personnel;

B. The emergency override control device proposed fails to comply with the requirements of this chapter or any regulations promulgated by the police chief pursuant to Section 8.28.030; or

C. Installation, operation or maintenance of the mechanical gate would violate another county ordinance, state law, or any applicable law of any governmental jurisdiction; provided, that the issuance of the permit shall not be deemed to constitute an express or implied representation that the gate complies with such other laws or be deemed to excuse compliance with such other laws.

Application for the permit shall be made upon such written form as is prescribed by the police chief, and shall be accompanied by such information, data and plans as are required by the police chief.

(Ord. 201 § 1 (part), 1984)

The police chief shall be authorized to issue and serve personally or by certified mail a written declaration of nuisance upon any party who owns or operates a mechanical gate which was installed prior to the date the ordinance codified in this chapter becomes effective, if the police chief determines that the mechanical gate impairs the timely, nondestructive or otherwise effective access by public safety vehicles or personnel, and that by reason of such impairment a serious threat to the health or safety of such persons exists. Any such declaration shall contain a statement of the facts upon which the determination by the police chief is based, a statement informing the party upon whom the declaration is served that it is unlawful for the mechanical gate to be maintained or operated ninety calendar days following the date of personal service or certified mailing of the declaration unless a permit therefor has been issued by the police chief pursuant to the provisions of Section 8.28.030, and shall have attached thereto a copy of the provisions of this chapter.

From and after ninety calendar days following the date of personal service or certified mailing of a declaration of nuisance, it is unlawful for any party to operate or maintain a mechanical gate which is the subject of the declaration of nuisance, unless a permit therefor has been issued pursuant to the provisions of Section 8.28.040.

(Ord. 201 § 1 (part), 1984)

The applicant for a permit required by the provisions of either section may appeal the denial thereof or conditions of issuance thereof to the city council. The appeal shall be filed in writing with the city clerk not later than fifteen calendar days following the denial of the permit or issuance of the permit containing the objectionable condition or conditions, and shall state the reasons for the appeal. The fee for filing such appeal shall be as set forth in the master fee resolution.

Upon receipt of a timely filed appeal, the city clerk shall set the matter for hearing, and shall mail written notice of the time and date thereof to the appellant and to the police chief. During the hearing, the appellant shall be afforded the opportunity to present oral and documentary evidence, and the right of cross-examination.

(Ord. 201 § 1 (part), 1984)

It is unlawful to operate or maintain a mechanical gate for which a permit is required by either Section 8.28.040 or Section 8.28.050 unless a valid, unrevoked permit has been issued therefor, or to operate or maintain any such mechanical gate in violation of any condition upon which such a permit is issued. An emergency override control device installed pursuant to such a permit shall at all times be maintained in good condition and repair so long as the mechanical gate is used to control, obstruct or inhibit vehicular or pedestrian access.

(Ord. 201 § 1 (part), 1984)

A permit issued pursuant to the provisions of either Section 8.28.040 or Section 8.28.050 shall be subject to revocation upon any one of the following grounds:

A. Failure to comply with any one or more of the conditions of the permit;

B. Failure to maintain any emergency override control device in good condition and repair as required by Section 8.28.070;

C. Violation of any of the requirements of this chapter. The police chief may commence proceedings for the revocation of a permit by personally serving or certified mailing to the holder of the permit a written notice of revocation. The notice of revocation shall contain a statement of the grounds of revocation, the facts upon which the grounds are based, and shall have attached thereto a copy of the provisions of this chapter. The revocation shall become complete, final and effective twenty calendar days following the date of personal service or certified mailing of the notice of revocation, unless by that date an appeal is received by the city clerk.

Any such appeal shall be in writing, shall admit or deny the facts contained in the notice of revocation, and shall be filed with the city clerk. The receipt by the city clerk of a timely filed appeal shall suspend the effective date of revocation of the permit until a determination of the appeal by the city council. Upon receipt of a timely appeal, the city clerk shall set the matter for hearing, and shall mail written notice of the time and date thereof to the appellant and to the police chief. During the hearing, the police chief shall carry the burden of proving grounds for revocation, and the appellant shall be afforded the opportunity to present oral and documentary evidence and the right of cross-examination.

After the conclusion of the hearing, the city council shall determine whether the permit shall be revoked, and the determination by the council shall be final and binding. In lieu of revocation, the council shall be authorized to revise existing conditions or add new conditions to the permit, the violation of which constitute grounds for revocation.

(Ord. 201 § 1 (part), 1984)

The provision of this chapter shall not be deemed to either expressly or impliedly repeal, amend or otherwise supersede any ordinance or law which pertains to the same or similar subject matter, and the provisions of this chapter together with those of such other law or ordinance shall each be deemed to be fully applicable and operable.

(Ord. 201 § 1 (part), 1984)

Violation or failure to comply with any provision of this chapter shall constitute an infraction and shall be punishable in accordance with the provisions set forth in Chapter 1.16 of this code.

(Ord. 270 § 8, 1990: Ord. 201 § 1 (part), 1984)