Town of Wheatfield, NY
Niagara County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Wheatfield 2-23-1987 by L.L. No. 1-1987. Amendments noted where applicable.]
GENERAL REFERENCES
Drainage — See Ch. 82.
Flood damage prevention — See Ch. 101.
Plumbing — See Ch. 130.
Sewers — See Ch. 146.
Solid waste — See Ch. 161.
Streets and sidewalks — See Ch. 165.
Subdivision of land — See Ch. 169.
Water — See Ch. 194.
Zoning — See Ch. 200.

§ 92-1 Purpose.

The purpose of this chapter is to protect the health, safety and general welfare of the residents of the Town of Wheatfield from all adverse impacts caused by excavations and other soil disturbances. The Town Board also recognizes earth with its minerals as a valuable and recoverable resource having commercial value and affirms the right of the Town to control the proper excavation upon assurance of adequate restoration.

§ 92-2 Scope.

These regulations shall be interpreted to foster:
A. 
The orderly operation of all excavations and soil disturbances, including development of domestic mineral resources, according to sound environmental practices.
B. 
The restoration of affected lands.
C. 
The retention of the taxable value of property.
D. 
The retention of natural beauty and aesthetic values in the affected areas.
E. 
The preservation of the quality of life for Wheatfield residents.
F. 
The retention of topsoil within the Town of Wheatfield.

§ 92-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:
APPLICANT
That person making application for a permit and who is responsible for fulfilling the requirements for the restoration plan and all rules and regulations promulgated hereunder. If the applicant is other than the property owner, written proof must be presented showing authorization from the property owner to the applicant.
APPURTENANT ACTIVITIES
All on-site operations involved in the treatment, processing or further fabrication of soil, sand, gravel or natural deposits, including washing, sedimentation ponds, grading, sorting, grinding, concrete batching plants, asphalt mixing plants and aggregate dryers.
BASIN
An excavated area designed to hold surface water.
BUFFER
Trees, hills, fences, berms or other natural or artificial features which are located so as to conceal or separate the excavation site and related activities from other land uses and to reduce the negative effects on these land uses of noise, glare, dust, visual ugliness and other factors associated with the excavation site and related activities.
EXCAVATION
A cavity, hole, mine, pit or quarry on land formed by digging, for the purpose of extracting clay, stone, gravel, sand, shale or other natural minerals or the topsoil therefrom.
FARMING
The usual farming methods of growing crops or dairy farming and shall not include any other form of farming.
MINE
Any pit or underground workings from which any mineral is produced.
MINERAL
Aggregate, clay, gravel, sand, shale, stone or any other solid material of commercial value found in or on the earth.
OPERATOR
Any owner, lessee or other person who operates, controls or supervises the operation.
OWNER
That person having title to the tract of land.
PERSON
Any individual, public or private corporation, political subdivision, government agency, partnership, association, trust, estate or any other legal entity.
PLANNING BOARD
The Planning Board of the Town of Wheatfield.[1]
RESTORATION
The reparation to an environmentally acceptable natural state of an area which has undergone physical change due to excavation and related activities.
TOPSOIL
Surface earth, including the organic layer in which most plants have their roots.
TOWN BOARD
The Town Board of the Town of Wheatfield.
TOWN CLERK
The Clerk of the Town of Wheatfield.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 92-4 Excavation permit; general provisions; costs.

A. 
No person shall excavate, remove topsoil or alter topography for any purpose, other than the exceptions described below under § 92-5, without an excavation permit authorized by the Town Board issued by the Town Clerk.
B. 
No such permit shall be issued except upon submission of evidence satisfactory to the issuing authority and upon its finding and determination based upon such evidence that the proposed operation will not cause erosion or otherwise disturb or adversely effect natural drainage, creeks or other bodies, sources or supplies of water, both surface and ground, adjacent or nearby flora, fauna or other vegetation. In determining the sufficiency of evidence, proof of compliance with standards promulgated by the United States Department of Agriculture Soils Conservation Services and by the New York State Department of Environmental Conservation may be considered as evidence for such permit but shall not be the exclusive determining factors.
C. 
All excavation, topsoil removal and topography alteration operations (requiring permit) shall be conducted according to standards set forth below, including restoration of the affected area;
(1) 
The applicant shall comply with all bonding, fee schedules, etc., as required by this chapter.[1]
[1]
Editor's Note: A fee schedule is on file at the office of the Town Clerk.
(2) 
The applicant shall pay for all costs to the Town, including but not limited to laboratory testing fees at a laboratory approved by the Town, if tests are ordered by the Town, and the cost for inspections and inspectors. As part of the permit, the Town Board may require permanent on-site inspection, which cost shall be paid for by the applicant.

§ 92-5 Exceptions.

The following operations and uses are hereby excepted from the application of this chapter:
A. 
Excavation incident to construction of a driveway, walk, a wall or building or part thereof or accessory thereto or as permitted in Town of Wheatfield Chapter 200, Zoning.
B. 
Removal of topsoil, gravel or fill from one part of a premises to another part of the same premises incident to the construction of a building or other improvement of land or incident to farming or landscaping. However, not excepted from the operation of this chapter shall be any removal of topsoil gravel or fill resulting from the excavation for a pond in excess of 1/2 acre in size.
[Amended 7-18-1988 by L.L. No. 2-1988]
C. 
Removal of excess stones, gravel, sand or topsoil from the area of an approved subdivision, provided that such removal is in accordance with plans and a permit approved by the Town Board after review by the Town Planning Board, subject to site plan review procedures in the Town of Wheatfield Chapter 200, Zoning.[1]
[1]
Editor's Note: See also Ch. 169, Subdivision of Land.
D. 
Construction of privately owned water and sewerage systems.
E. 
Typical excavations for public safety purposes.

§ 92-6 Permit from state required.

A. 
The applicant shall furnish evidence of a valid permit from the New York State Department of Environmental Conservation pursuant to Title 27 of Article 23 of the Environmental Conservation Law when applicable.
B. 
Compliance with the above-mentioned Environmental Conservation Law shall not exempt the applicant from the provisions of this chapter and the requirement for a permit from the Town of Wheatfield.

§ 92-7 Excavation permits.

A. 
Application.
(1) 
Upon securing a certificate of zoning compliance from the Town Building Inspector, the applicant shall file with the Town Clerk an application for an excavation permit.
(2) 
In addition to site plan review requirements of Chapter 200, Zoning, the following information shall be supplied in conjunction with the site plan review procedures to the Town Planning Board when applicable:
(a) 
A duly acknowledged consent, in writing, by the owner or lessee of the premises and mortgagee, if any, including all addresses.
(b) 
A statement as to the period of time required to complete the total operation, including restoration.
(c) 
The following information on the site plan:
[1] 
Average thickness of overburden, that which is above the material to be excavated.
[2] 
Surface drainage pattern, including off-site drainage where appropriate.
[3] 
The location of all underground utilities and facilities.
[4] 
The scale, an engineer's stamp, the North arrow, the names of surrounding landowners and existing contour lines per United States Geological Survey standards and such other information as the Town Board or its agents or departments may require.
(d) 
An operations map and plan showing the following features, including the area devoted to each:
[1] 
Existing and proposed excavation areas.
[2] 
Existing and proposed appurtenant activities, identified by type.
[3] 
Existing and proposed access roads, identified by width and type of material used for construction, including origin of material brought onto the site.
[4] 
Existing and proposed parking facilities, identified by type of surface material, including origin of material brought onto the site.
[5] 
Existing and proposed fencing and buffers, identified by height and type of material.
[6] 
The area where soil will be temporarily stored for use in restoration.
[7] 
Existing and proposed structures to be used in said operations.
[8] 
The general method of operation, including a plan to reduce noise, dust and other nuisances.
[9] 
Route to be used to and from the excavation site, including Town, county or state roads.
[10] 
Elevations showing;
[a] 
Existing ground level.
[b] 
Completed grade.
[c] 
Benchmark.
(e) 
A restoration plan consisting of all appropriate descriptive materials and including the following:
[1] 
Boundaries of the area proposed for restoration.
[2] 
Final topography of the area proposed for restoration at maximum contour intervals of five feet.
[3] 
Final surface drainage pattern and location and characteristics of artificial drainage facilities in the area proposed for restoration and in contiguous areas.
[4] 
Depth and composition of topsoil proposed to be used in restoration.
[5] 
The type and density of trees and shrubs, grasses and other vegetation proposed to be used in restoration.
(f) 
A copy of all plans and permits required by the New York State Department of Environmental Conservation.
(g) 
A review and recommendations of any and all drainage plans by the Town Drainage Committee.[1]
[1]
Editor's Note: See Ch. 82, Drainage.
B. 
Public hearing. No permit shall be issued without a prior public hearing held by the Town Board. Notwithstanding the immediate foregoing requirement, a renewal of a permit may be issued without a public hearing when the area covered by the renewal or transfer does not extend beyond the area of operations originally authorized; however, the Town Board may, in its discretion, direct a public hearing if it determines said hearing is necessary. Not more than 40 days nor less than 20 days before the public hearing, notice of the time and place of said hearing shall be published in the official Town newspaper(s) and posted on the official Town notice board, paid for by the applicant. All requirements shall be completed and filed with the Town Clerk at least 10 days prior to a public hearing.
C. 
Issuance of permits.
(1) 
Permits may be issued by the Town Clerk pursuant to all the provisions of this chapter and subject to any additional conditions and/or restrictions imposed by the Town Board.
(2) 
Approval or denial of the application by the Town Board shall be rendered within 62 days after the conclusion of the public hearing on said application, unless both the Town Board and the applicant mutually consent to a time extension. The applicant will be notified of the decision, in writing, mailed to the address shown on the application.[2]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(3) 
Excavation permits shall be issued for a period of one year or less and shall be subject to site inspection and review by the Town Building Inspector or any other agent(s) designated by the Town Board.
(4) 
The Town Clerk shall perform the function of executing any permit on behalf of the Town Board but shall do so only upon resolution or order of the Town Board setting forth any conditions and/or restrictions with respect thereto.
D. 
Permit renewal. Renewal of an excavation permit upon its termination shall follow the same procedures as those required in this chapter for the original permit, except that if an application for renewal was properly filed prior to the expiration of an existing permit, the term of the existing permit shall be deemed to be extended to the time that the Town Board files its decision in regard to the application for renewal.

§ 92-8 Considerations for approval.

In approving or denying an excavation permit, the standards and considerations taken into account include, but are not be limited to, the following:
A. 
Whether the excavations and proposed restoration plan are in accord with the intent of the Town Comprehensive Plan.
B. 
Whether they will result in the creation of pits or holes which may be hazardous or dangerous and eventually permanent in nature.
C. 
Whether they will cause soil erosion or the depletion of vegetation.
D. 
Whether they will render the land unproductive or unsuitable for agricultural or developmental purposes.
E. 
Whether they will impair the aesthetic or natural environment of the excavation area or surrounding area.
F. 
Whether they will affect the character of surrounding land use.
G. 
Whether they will create excessive traffic or impair the quality of the existing and proposed thoroughfare facilities, community facilities and drainage.
H. 
Whether they will affect the control of nuisances.
I. 
Whether the areas excavated can be effectively restored and revegetated.
J. 
Whether the resultant drainage will be adversely affected.
K. 
Whether the best interests of the Town are being served.

§ 92-9 Fees. [1]

A. 
Permit fee. Upon filing an application for a permit, the applicant shall pay to the Town yearly fees established by resolution of the Town Board. Said total sum shall be deemed a reasonable sum to cover costs of administration, no part of which shall be returnable to the applicant.
B. 
Excavation fee.
(1) 
To assure the Town that restoration takes place, Town streets are adequately maintained and rebuilt and improvements required are satisfactorily completed, the Town shall require a fee payment, as set forth from time to time by resolution of the Town Board, of all excavated material removed from the site. This sum shall be billed by the Town and paid by the permittee every six months. The first payment shall be made in advance upon issuance of a permit by payment based on the phasing schedule and computed by the Town Engineer. The Town shall divide this excavation fee in two equal parts. 1/2 shall be used as the Town Board may determine. The other half of the excavation fee shall be placed in an interest-bearing escrow account on behalf of the operator.[2]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(2) 
The amount of the excavation fee, including the advance payment, shall be determined by the Town or the Town Engineer or a licensed land surveyor retained by the Town. Calculations will be based on original baselines established by the Town Engineer and approved by the surveyor and resurveyed at the semiannual inspection to determine the exact volume removed. The inspection and survey costs shall be paid out of the operator's share of the escrow account as shall the emergency repairs of any Town roads or other reasonable Town costs incurred.
(3) 
The excavation fee shall be paid within 30 days of receipt of the Town bill. Failure to pay within this time limit shall constitute cancellation of the permit and shall result in forfeiture of the performance bond and escrow fund. At the satisfactory conclusion of the excavation project, including the acceptance by the Town of all utilities and other amenities, all unused escrow funds shall be returned to the developer along with a financial statement accounting for all transactions.
[1]
Editor's Note: A fee schedule is on file at the office of the Town Clerk.

§ 92-10 Performance bond.

A. 
After the approval of the application and before the issuance of any permit, the Town Board shall require that a performance bond be jointly and severally executed and filed with the Town Clerk by the applicant and all owners of record of the premises. Said bond shall be secured by a letter of credit or surety bond to the Town in the amount of a minimum of $5,000 per acre. The above party or parties guarantee with said bond that upon termination of either the permit or the operation, whichever may come first, the land shall be restored in conformity with both the permit requirements and standards set forth by this chapter. In the event of default of compliance, such letter of credit or surety bond shall be forfeited to the Town. In this case, the Town shall return to the applicant any amount that is not needed to cover the expenses of restoration, administration and any other expenses reasonably incurred by the Town as a result of the applicant's default.
B. 
Said bond shall continue in full force and effect until a certificate of compliance shall have been issued by the Town Building Inspector, subject to approval of the Town Engineer. Prior to the issuance of said certificate, the Town Board may require a statement showing the manner of compliance with the plan of restoration.
C. 
There shall be no transfer of a permit without permission of the Town Board. In the event of a transfer of the permit or the property, the Town Board shall require the filing of a certificate from the surety company issuing the bond then in effect, continuing the same as to the new permit holder or certifying that a new bond has been issued. A change in the ownership of a corporation which effects the majority control thereof shall be considered a transfer of the permit.

§ 92-11 Site design and operation standards.

A. 
Quarrying and mining operations, including clay mining. For quarrying and mining operations, including clay mining, the following shall apply:
(1) 
Setback.
(a) 
Excavations, structures and appurtenant activities shall stay a minimum distance of 100 feet from any public right-of-way or adjoining property line and 250 feet from any building, including that of the applicant.
[Amended 9-15-2008 by L.L. No. 8-2008]
(b) 
The setback area may be used to contain one sign identifying the operation, fencing and buffers, subject to regulations as specified in the Town of Wheatfield Chapter 200, Zoning.
(2) 
Access roads and parking.
(a) 
Access roads shall be sufficiently free of dust and mud to prevent such material from being spread or blown from the premises.
(b) 
Sufficient off-street parking shall be provided inside the setback area for company, employee and visiting vehicles.
(3) 
Conservation measures.
(a) 
All topsoil stripped from the active excavation area shall be stockpiled for use in accordance with the restoration plan, but no closer than the immediate 10 feet to any property line. Such stockpiles shall be seeded, covered or otherwise treated to minimize the effects of erosion by wind or water.
(b) 
Excavations shall be buffered by appropriate landscaping sufficient to shield the operation from public view. These buffer areas shall be seeded and maintained by the operator.
(c) 
An adequate drainage system shall be provided to convey stormwater runoff originating on or crossing the premises such that the runoff follows, as much as feasible, the natural pattern of runoff prior to excavation and such that it does not adversely affect neighboring property owners. Soil erosion, sedimentation and groundwater seepage shall be controlled so as to prevent any negative effects on bodies of water, public roads and neighboring properties.
(4) 
Other safeguards.
(a) 
All operations shall be conducted between the hours of 7:00 a.m. and 6:00 p.m., with no Sunday or holiday operations, subject to such modification as the Town Board deems advisable.
(b) 
All equipment used for excavations and processing shall be constructed, maintained and operated in such a manner as to eliminate, as far as is practical, noises and vibrations and dust conditions which are injurious or a nuisance to persons living in the vicinity.
(c) 
Trucks shall be loaded to prevent spillage or windblown matter during transport on public roads.
(d) 
All applicable provisions of the Mined Land Reclamation rules and regulations under Title 27 of Article 23 of the Environmental Conservation Law shall be followed.
B. 
Topsoil removal; turf farming.
(1) 
Setback. Topsoil removal, including turf farming operations, shall stay a minimum distance of 100 feet from any public right-of-way or adjoining property line.
(2) 
Access roads. Access roads shall be sufficiently free of dust and mud to prevent such material from being spread or blown from the premises.
(3) 
Conservation measures.
(a) 
Conservation measures as provided under Subsection A(3)(a) and (c) above shall apply.
[Amended 9-15-2008 by L.L. No. 8-2008]
(b) 
A minimum of five inches of topsoil shall remain on the surface of the land and be on the surface upon the transfer of title to the homeowner or owner.
[Amended 6-21-2000 by L.L. No. 3-2006]
(c) 
No permit to strip or remove topsoil shall be granted for any land which is subject to flooding or which will adversely affect the drainage of adjacent lands.
(4) 
Other safeguards.
(a) 
Dustdown or its equal shall be spread to prevent dust.
(b) 
Topsoil shall be removed in a manner which will not leave hollows or depressions for the accumulation of water.
(5) 
All stumps, boulders and other debris resulting from the excavations, appurtenant activities or related operations shall be disposed of by approved methods. If disposed of on site, such debris shall be covered with a minimum of two feet of soil or paving.
[Added 6-21-2000 by L.L. No. 3-2006]
C. 
Pond, lake and basin excavations.
(1) 
Setback. Pond, lake and basin excavations shall not be closer than 100 feet to any public right-of-way or adjoining property line.
(2) 
Access roads. Access roads shall be sufficiently free of dust and mud to prevent such material from being spread or blown from the premises.
(3) 
Conservation measures. Excavated material from construction of a pond, lake or basin which is not removed from the premises shall be handled in a manner which will minimize erosion as provided under Subsection A(3)(a) above.
(4) 
Other safeguards. The plan required in § 92-7 above shall bear the approval by the Niagara County Soil and Water Conservation District for the construction and maintenance of any pond, lake or basin (retention or detention).
D. 
The Town Board may place such other and further standards as it deems necessary to protect the Town in furtherance of this section.
E. 
No topsoil shall be removed from a subdivision or building site until the subdivision or building has received final site plan approval.
[Added 6-21-2000 by L.L. No. 3-2006]
F. 
In the event that topsoil is not included in the purchase price for real property in the Town of Wheatfield, such fact, as well as any cost for the purchase of topsoil, must be disclosed in the contract for sale.
[Added 6-21-2000 by L.L. No. 3-2006]

§ 92-12 Standards for restoration.

A. 
No slope shall be left with a grade steeper that one foot of vertical rise to three feet of horizontal distance, and the normal angle or repose shall not be exceeded in any case.
B. 
All stumps, boulders and other debris resulting from the excavations, appurtenant activities or related operations shall be disposed of by approved methods. If disposed of on the site, such debris shall be covered with a minimum of two feet of soil, or if to be considered a part of the structure of a lake, it is to be covered by at least six feet of water.
C. 
Topsoil shall be spread over the excavated area to a minimum depth of six inches.
D. 
The restoration area shall be planted with trees, shrubs, grass or other vegetation so as to provide for screening, natural beauty and soil stability. The planting shall follow acceptable conservation practices.
E. 
Restoration shall be undertaken in such a way that natural and storm drainage, where it enters and leaves the premises, shall be altered only to the minimal degree necessary to carry out excavations and appurtenant activities. Any alterations of natural and storm drainage shall not adversely affect public roads or neighboring property owners.
F. 
Restoration shall be a continuous operation, subject to review and approval at each inspection and at the termination of the permit period. Topsoil grading and planting of the area designated for restoration during the permit period shall have been completed before a permit renewal is granted.
G. 
Within six months after termination of the excavation operation, all equipment, buildings, structures and other unsightly evidence of the operation shall have been removed from the premises or disposed of by approved methods and all restoration shall have been completed.

§ 92-13 Variances; waivers.

A. 
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations, the Town Board shall have the power to vary or modify the application of any of the requirements herein so that the spirit of the regulations shall be observed, public safety and welfare secured and substantial justice done, except that there shall be no variance or waiver of the permit fee or excavation fee required by § 92-9 above.
B. 
Application for modifications and variances shall be submitted, in writing, by the owner at the time the permit application is filed with the Town Board. The application shall state fully what variances are requested and give the justification for each request.
C. 
No waiver or variance shall be granted by the Town Board without first holding a public hearing upon 10 days' prior publication notice in the official newspaper(s) of the Town and posting notice on the official bulletin board of the Town.

§ 92-14 Penalties for offenses.

[Amended 6-21-2000 by L.L. No. 3-2006]
Any person who violates any provision of this chapter or any regulation adopted hereunder is guilty of an unclassified misdemeanor punishable by a fine not exceeding $500 for the first violation, plus $5,000 per acre, or any portion thereof, of land from which topsoil is removed in violation of this chapter; a minimum of $500 and a maximum of $1,000 for a second violation within five years plus an additional fine of $6,000 per acre or any portion thereof; and a minimum of $1,000 and a maximum of $2,000 plus an additional fine of $7,500 per acre or portion thereof for a third or subsequent violation within five years; or imprisonment for a period not to exceed six months, or both. Each week's continued violation shall constitute a separate violation. Also, the Town Board after five days' notice to the applicant may modify, suspend or revoke the permit.

§ 92-15 Enforcement.

The Building Inspector shall be empowered to enforce this chapter and the regulations set forth herein and any other person(s) designated by the Town Board.