[HISTORY: Adopted by the Town Board of the
Town of Wheatfield 2-23-1987 by L.L. No. 1-1987. Amendments noted where
applicable.]
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.
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.
As used in this chapter, the following terms
shall have the meanings indicated:
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.
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.
An excavated area designed to hold surface water.
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.
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.
The usual farming methods of growing crops or dairy farming
and shall not include any other form of farming.
Any pit or underground workings from which any mineral is
produced.
Aggregate, clay, gravel, sand, shale, stone or any other
solid material of commercial value found in or on the earth.
Any owner, lessee or other person who operates, controls
or supervises the operation.
That person having title to the tract of land.
Any individual, public or private corporation, political
subdivision, government agency, partnership, association, trust, estate
or any other legal entity.
The Planning Board of the Town of Wheatfield.[1]
The reparation to an environmentally acceptable natural state
of an area which has undergone physical change due to excavation and
related activities.
Surface earth, including the organic layer in which most
plants have their roots.
The Town Board of the Town of Wheatfield.
The Clerk of the Town of Wheatfield.
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;
(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.
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]
D.
Construction of privately owned water and sewerage
systems.
E.
Typical excavations for public safety purposes.
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.
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.
(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.
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]
(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.
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.
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)
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.
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.
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]
(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.
(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.
(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.
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]
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.
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.
[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.
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.
