Borough of Chester, NJ
Morris County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Mayor and Council of the Borough of Chester 4-3-1980 as Ch. X of the 1980 Code. Amendments noted where applicable.]
GENERAL REFERENCES
Fees — See Ch. 127.
Land development and procedures — See Ch. 163.
Stormwater management — See Ch. 204.

§ 197-1 Title; county responsibility.

[Amended 10-2-2007 by Ord. No. 2007-18]
A. 
This article shall be known as the "Chester Borough Soil Erosion, Sediment Control and Flood Prevention Ordinance."
B. 
The Morris County Soil Conservation District shall be responsible for implementation and enforcement of soil erosion and sediment control measures within the Borough of Chester.

§ 197-2 Purpose.

A. 
The general purpose of this article is to promote the public health, safety, convenience and general welfare of the Borough by preventing floods and controlling soil erosion, sedimentation, and related environmental damage resulting from but not limited to the disturbance of the land or earth by construction activities such as those for housing, commercial, industrial, utility, highway, public works, and other similar developments.
B. 
The specific purposes of this article are to require adequate provisions for:
(1) 
The protection of soil surfaces during and following construction activities or other land disturbance.
(2) 
The prevention of danger to life and property from flooding resulting from excessive runoff and sedimentation of waterways and drainage facilities.
(3) 
Surface water detention, including both temporary and permanent measures.
(4) 
Maintaining the useful life of streams, ponds and lakes by preventing sedimentation.
(5) 
Preserving the recreational use of water bodies for swimming and fishing.
(6) 
Reducing public expenditures for repair and maintenance of public facilities resulting from flooding, soil erosion, and sedimentation.
(7) 
Conserving the taxable value of property by enhancing the environmental character of the Borough.

§ 197-3 Definitions.

A. 
As used in this article, words used in the present tense include the future tense; the singular includes the plural; the term "shall" is always mandatory and not discretionary; the word "may" is permissive; and any word or term not interpreted or defined hereafter shall be used with a meaning of common utilization.
B. 
The following terms shall have the meanings indicated:
APPLICANT
A person, partnership, corporation or public agency requesting permission to engage in land disturbance activity.
APPROVED PLAN
A plan to control soil erosion and sedimentation which has been approved by the proper municipal authority developed in cooperation with the soil conservation district which provides for use of land, within its capabilities and treatment, within practical limits, according to chosen use to prevent further deterioration of soil and water resources.
CRITICAL AREA
An area which has a high potential for erosion, sediment, or related environmental damage, or an area which has experienced such damage.
CUT
Portion of land surface or area from which earth has been removed or will be removed by excavation; the depth below original ground surface to excavated surface.
DETENTION POND OR BASIN
A pond, basin or other structure or measure that provides for temporary storage of stormwater and which includes a spillway or other facility to release the water at a controlled rate of flow.
DIVERSION
A channel constructed across or at the bottom of a slope.
EROSION
Detachment and movement of soil or rock fragments by water, wind, ice and gravity.
EXCAVATION
Any act by which soil or rock is cut into, dug, quarried, uncovered, removed, displaced or relocated.
EXISTING GRADE
The vertical location of the existing ground surface prior to cutting or filling.
FILL
A man-made deposit of soil, rock, or other materials.
FINISHED GRADE
The final grade or elevation of the ground surface.
FLOODPLAIN
The land bordering or adjacent to a river, stream, lake, pond, swamp, or other waterway which is subject to flooding as evidenced by:
(1) 
Observed or recorded flood events;
(2) 
Alluvial soil as shown on soil maps; or
(3) 
As determined by state or federal statute, rule, regulation or practice.
GRADING
Any stripping, cutting, filling, stockpiling, or any combination thereof and shall include the land in its cut or filled condition.
LAND
Any ground, soil, or earth, including marshes, swamps, drainageways and areas not permanently covered by water.
LAND DISTURBANCE
Any activity involving the clearing, grading, transporting, filling or excavation of land or any other activity which causes land to be exposed to danger of erosion, but not including normal cultivation practices incident to customary farming activity.
LAND DISTURBANCE PERMIT
A certificate issued to perform work under this article.
MULCHING
The application of plant or other suitable materials to the soil surface to conserve moisture, hold soil in place, and aid in establishing plant cover.
NATURAL GROUND SURFACE
The existing ground surface of land prior to any grading excavation or other land disturbance.
SEDIMENT
Soil material, both mineral and organic, that is in suspension, is being transported, or has been moved from its site or origin by air, water or gravity as a result of erosion.
SEDIMENT BASIN
A pond, basin, or other structure or measure that provides for the detention of water and deposit of sediment.
SOIL
All unconsolidated mineral and organic material of any origin.
SOIL CONSERVATION DISTRICT
The Morris County Soil Conservation District which is a governmental subdivision of this state organized in accordance with the provisions of Chapter 24, Title 4 (N.J.S.A. 4:24-1 et seq.).
SOIL EROSION, SEDIMENT CONTROL, AND FLOOD PREVENTION PLAN (HEREINAFTER REFERRED TO AS THE "PLAN")
A plan which fully indicates necessary land treatment measures, including a schedule of the timing for their installation, which will effectively prevent floods and minimize soil erosion and sedimentation. Such measures shall be equivalent to or exceed standards adopted by the New Jersey State Soil Conservation Committee and administered by the Morris County Soil Conservation District.
STANDARDS
The standards for soil erosion and sediment control in New Jersey as promulgated by the State Soil Conservation Committee.
STRIPPING
Any activity which removes or significantly disturbs vegetated or otherwise stabilized soil surface, including clearing and grubbing operations.
VEGETATIVE PROTECTION
Stabilization of erosive or sediment producing areas of land by covering the soil with one or more of the following:
(1) 
Permanent seeding or permanent plantings producing long-term vegetative cover of land.
(2) 
Short-term seeding or short-term plantings producing temporary vegetative cover of land.
(3) 
Sodding, producing areas covered with a turf of perennial sod-forming grass.
WATERCOURSE
Any natural or artificial watercourse, stream, river, creek, ditch, channel, canal, conduit, culvert, drain, gully, ravine, wash or other waterway in which water flows in a definite direction or course, either continuously or intermittently, within a definite channel and including any area adjacent thereto subject to inundation by reason of overflow of floodwater.

§ 197-4 Regulations.

A. 
It shall be unlawful for any person to remove soil from or deposit soil within the Borough, except in conformance with the provisions of this article and other ordinances of the Borough as may be applicable.
B. 
It shall be unlawful for any person to create or cause disturbance of any land which poses the risk of, or which may reasonably be anticipated to result in, detrimental soil erosion of or sedimentation to any land or watercourse unless and until a plan shall have been submitted to and approved by the Planning Board or the Borough Engineer as provided for herein.
C. 
Plan.
(1) 
A plan shall be filed with and become a part of each application to the Planning Board for approval of:
(a) 
A site plan;
(b) 
A preliminary subdivision plat; or
(c) 
A final subdivision plat pursuant to the Zoning Ordinance or Land Subdivision Ordinance[1] of the Borough, and with applications to the Board of Adjustment for approval of:
[1] 
A zoning variance;
[2] 
Special exception; or
[3] 
Planned unit development.
[1]
Editor's Note: See Ch. 163, Land Development and Procedures.
(2) 
The plan shall be prepared and duly signed and sealed by a professional engineer licensed in the State of New Jersey. Construction plans for land development shall incorporate the measures of the approved plan.
D. 
No land area within the Borough shall be cleared, graded, excavated, or filled by any person for purposes including but not limited to the construction of roads, the filling of land, the excavation of land, the removal of natural resources, the mining of materials, or the development of recreational or educational facilities unless and until:
(1) 
A plan has been submitted to and approved by the Planning Board as required in Subsection B of this section, or by the Borough Engineer in all other cases; and
(2) 
The Borough Clerk has issued a valid land disturbance permit.
E. 
All plans shall be developed in accordance with the provisions of this article.
F. 
The Planning Board or Borough Engineer in approving a plan may impose reasonable conditions or requirements designated or specified on or in connection therewith.
G. 
Such review and approval shall be made within a period of 30 days of submission of a complete application unless, by mutual agreement in writing between the Borough and the applicant, this period is extended for an additional 30 days. Failure of the Borough to make a decision within such period or such extension thereof shall constitute certification.
H. 
The applicant shall be provided with written notice of such decision by the Borough Clerk or Engineer. A copy of such decision, including the name of the applicant, site location by street address and block and lot number, and proposed land use, shall be sent to the Morris County Soil Conservation District. The Borough shall also make available such other information as may be required by the district.

§ 197-5 Land disturbance permit.

[Amended by Ord. No. 96-06]
The Borough Clerk shall issue a land disturbance permit upon receipt of:
A. 
An application for such permit;
B. 
Certificate from the Planning Board or Borough Engineer that a plan has been approved; and
C. 
Payment of a land disturbance permit fee. The fee shall be as established in Chapter 127, Fees.

§ 197-6 Principles and standards.

A. 
The plan shall comprise a map and written report (together with whatever other instruments, writings, drawings, plans or specifications are necessary or appropriate under the circumstances) which fully and adequately describe both temporary and permanent measures to be employed to control, minimize and protect against soil erosion, sedimentation and flooding from a proposed land disturbance, taking into account the particular nature and characteristics of the land, the surrounding area, the watercourses, the land disturbance and the development involved. The plan shall cover all stages and aspects of the proposed land disturbance and planned development from grading, stripping, excavation and other site preparation through and including both final grading and the installation of permanent improvements.
(1) 
Schedule. It shall accordingly include a timing schedule or schedules indicating both:
(a) 
The anticipated starting and completion dates of each step in the land disturbance and development sequence and the time of exposure of each land area prior to the completion of effective erosion and sediment control measures; and
(b) 
The sequence of installation of planned erosion and sediment control measures as related to the disturbance and development sequence referred to in Subsection A(1)(a) above, including anticipated starting and completion dates of such installations.
(2) 
The plan shall include a soil map prepared by the Soil Conservation Service upon which the proposed development shall be superimposed. The soil boundaries shall also be shown on the plan.
B. 
General conditions.
(1) 
It shall be the responsibility of the applicant to design his project so as to maintain as nearly as possible in its present state and condition any stream, watercourse, swale, flood plain, wetland, swamp, pond or lake.
(2) 
The maintenance or repair of any of the above or of drainage facilities damaged or otherwise adversely affected by reason of the applicant's project shall be the responsibility of the applicant. Such maintenance or repair work shall be promptly performed.
(3) 
It shall be the responsibility of the applicant to promptly remove sediment from any stream or watercourse, pond, lake, or drainage facility resulting from the applicant's project.
(4) 
No person shall block, impede the flow of, alter or construct any structure or deposit any material or thing or commit any act which will affect normal or flood flow in any stream or watercourse without having obtained a land disturbance permit from the Borough and, where required, prior approval from the Morris County Soil Conservation District or other state or municipal agency.
(5) 
All drainage or stormwater facilities proposed by the applicant shall have the capacity to transport runoff from the drainage area as if fully developed in accordance with the Comprehensive Plan (Master Plan) and the Zoning Ordinance of the Borough.[1]
[1]
Editor's Note: See Ch. 163, Land Development and Procedures.
(6) 
An objective of the plan shall be to maximize groundwater recharge and to minimize runoff, as well as the retention of sediment to the maximum extent feasible.
C. 
Soil erosion and sediment control measures shall as a minimum utilize and meet applicable standards and specifications of the New Jersey State Soil Conservation Committee, and as the same may be amended or supplemented.
D. 
In addition, to the extent applicable in particular situations, the following measures or considerations shall be incorporated in the plan:
(1) 
The smallest practical area of land shall be disturbed at any one time during development and the duration of such disturbance shall be kept to a practical minimum.
(2) 
Whenever feasible, natural vegetation and the natural ground surface shall be retained and protected.
(3) 
Temporary vegetative protection plan cover and/or mulching shall be used to protect erosion areas during development.
(4) 
Diversions and outlets, both temporary and permanent, shall be constructed and/or installed to accommodate the runoff caused by the changed soil and surface conditions during and after development.
(5) 
Disturbed soil shall be stabilized as quickly as practicable.
(6) 
Until the disturbed area is stabilized, sediment in the runoff water shall be trapped and removed by the use of debris basins, sediment basins, desilting basins, silt traps or other acceptable methods.
(7) 
Whenever feasible, development shall preserve natural features and existing grades, thereby keeping grading, stripping and excavation to a minimum.
(8) 
Adequate provisions shall be made to minimize surface water from damaging slopes and embankments. Diversions may be utilized for this purpose.
(9) 
Fill shall be placed and stabilized so as to minimize erosion and shall not encroach on watercourses closer than 100 feet unless specifically approved.
(10) 
During grading operations, approved methods for dust control will be exercised.
(11) 
During grading, excavation, and other construction activities, slopes and embankments shall be stabilized by mulching with straw sprayed with an asphalt mixture, or jute matting staked in position, and/or a seeding of annual rye grass, or other acceptable method.
(12) 
Permanent (final) vegetative protection, plant cover, lawn or ground cover, and mechanical erosion control devices and measures shall be installed or constructed, and completed, as soon as practically possible.
(13) 
Permanent improvements, such as pavement, catch basins, curbs and the like, shall be installed or constructed, and completed, as soon as practically possible.
(14) 
Permanent detention ponds shall be constructed whenever feasible to temporarily retain the increased runoff resulting from modifications to the land. Such detention facilities shall conform with standards and criteria established and/or approved by the Borough Engineer and shall be designed to control runoff from all storms recurring in 100 years except where adverse site conditions prevent the practical construction of such facilities and such requirement is waived by the Borough Engineer. The Borough Engineer shall approve all plans for detention facilities and such plans shall also be approved by the County of Morris and agencies of the State of New Jersey when required.

§ 197-7 Implementation of plan.

A. 
In considering and approving a plan, the Planning Board, Board of Adjustment or the Borough Engineer, as the case may be:
(1) 
Shall have the right among other things, to fix the time schedule for exposure of land areas and for the construction and installation of improvements, or the taking of other measures, to prevent soil erosion and sedimentation and may require that such work or measures be completed prior to any site development work.
(2) 
Shall provide for the posting of performance and maintenance guaranties.
(3) 
May refer the plan to the municipal environmental commission, the soil conservation district and/or any other qualified governmental agency or agencies or consultants for review and shall take no action on the plan before the expiration of a period of at least 30 days within which the environmental commission or other governmental agencies or consultants may submit a report.
(4) 
May impose reasonable conditions or requirements necessary or desirable for the proper implementation of the plan in accordance with the purposes and intent of this article.
B. 
After a plan has been approved, it shall be unlawful for the applicant (or any person performing services in implementing the plan) to deviate, change, amend or modify the plan in any way, except in accordance with § 197-14 hereof.

§ 197-8 Performance guaranty.

The applicant shall post a performance guaranty in the amount to be established by the Borough Council to guarantee the construction or installation of the measures included in the plan. The guaranty may be in the form of a performance bond issued by a surety approved by the Borough Council, a certified check returnable after full compliance, or other type of surety as may be approved by the Borough Council. The guaranty shall be discharged after all work has been completed in accordance with the plan or as amended or modified as provided for herein. No guaranty shall be discharged until all construction and vegetation measures have been fully established and approved and all inspection fees have been paid to the Borough as provided for herein.

§ 197-9 Maintenance.

A. 
The applicant and all subsequent owners of the property upon which measures under the plan have been carried out shall adequately maintain all measures in good order for a period of two years after implementation of the plan.
B. 
The applicant shall post a maintenance guaranty in the amount to be established by the Borough Council but not less than 10% of the amount of the performance guaranty. The guaranty may be in the form of a maintenance bond issued by a surety approved by the Borough Council, a certified check returnable after the maintenance period, or other type of surety as may be approved by the Borough Council. The guaranty shall be discharged at the end of the maintenance period as set forth above provided that all measures have been maintained as required and provided that all inspection fees have been paid to the Borough.

§ 197-10 Enforcement and inspection.

A. 
The requirements of this article shall be enforced by the Borough Engineer, Building Inspector or Zoning Officer who shall also inspect or require adequate inspection of the work carried out pursuant to this article. If the Borough Engineer, Building Inspector or Zoning Officer finds conditions other than as shown in the plan, or in the event of failure to comply with the plan or any condition thereto, he may refuse to approve further work and may require necessary measures to be promptly installed. The Borough Engineer, the Building Inspector or Zoning Officer on behalf of the Borough may also issue stop work orders and seek other penalties as provided in § 197-13, if a project is not being executed in accordance with a certified plan.
B. 
In the event of failure to comply with the requirements of this article the Building Inspector shall refuse to issue building permits and/or certificates of occupancy.
C. 
A formal report of such compliance must be filed with the Borough agent authorized to issue certificates of occupancy. A copy of this report shall be sent to the Morris County Soil Conservation District.
D. 
To facilitate the purposes of inspection and enforcement, the applicant shall be required to have the certified plan on site during construction.

§ 197-11 Fees.

[Amended by Ord. No. 81-8; Ord. No. 96-06]
A. 
Upon the filing of the soil erosion and sedimentation control plan for a major subdivision, which shall be submitted at the same time as the preliminary plat is filed, the applicant shall pay the Borough a fee of $150. In addition the applicant shall deposit with the Borough Clerk an amount as established in Chapter 127, Fees, for each and every lot shown on the plat.
B. 
Upon the filing of the soil erosion and sedimentation control plan for a site plan, which shall be submitted at the same time the site plan is filed, the applicant shall pay the Borough a fee as established in Chapter 127, Fees.
C. 
Upon the filing of the soil erosion and sedimentation control plan for all other purposes, the applicant shall pay the Borough a fee as established in Chapter 127, Fees.
D. 
If, at the completion and Borough approval, the sum deposited with the Borough Clerk by the applicant, pursuant to Subsections A, B, and C of this section, when applied to cover the costs of legal, engineering and inspection services, should exceed the expense actually incurred by the Borough for such services, the applicant, upon written request, within one year following the date of such acceptance, shall be entitled to the return of the amount by which the deposits exceeded such costs, without interest.

§ 197-12 Exemptions.

The following activities are specifically exempt from this article:
A. 
The construction of a single-family dwelling unit where such unit is not part of a proposed subdivision, site plan, special exception, zoning variance, planned unit development or building permit application involving two or more single-family dwelling units.
B. 
All other land disturbances not in excess of 5,000 square feet.

§ 197-13 Violations and penalties.

Any person who violates any provision of this article shall be subject to a fine of not less than $25 nor more than $3,000 for each offense. Each day that a violation occurs, persists, or is committed shall constitute a separate offense. Notwithstanding this provision, the Borough may also proceed to obtain injunctive relief.

§ 197-14 Appeals.

Appeals from decisions under this article shall be made to the Borough Council in writing; such appeal to be filed with the Borough Clerk within 10 days from the date of such decision. The appellant shall be entitled to a hearing before the Borough Council within 80 days from date of appeal.

§ 197-15 Effective date.

This article shall take effect following final adoption and publication according to law and upon subsequent and final approval by the State Soil Conservation Committee.

§ 197-16 Title.

This article will be known as the "Chester Borough Soil Moving Control Ordinance."

§ 197-17 Purpose.

The purpose of this article is to promote the safety, convenience, and general welfare of the Borough by controlling the removal and deposition of soil.

§ 197-18 Definitions.

A. 
As used in this article, words used in the present tense include the future tense; the singular includes the plural; the term "shall" is always mandatory and not discretionary; the word "may" is permissive; and any word or term not interpreted or defined hereafter shall be used with the meaning of common utilization.
B. 
The following terms shall have the meanings indicated:
MAJOR SOIL MOVING PERMIT
A permit for the moving of 500 cubic yards or more of soil.
MINOR SOIL MOVING PERMIT
A permit for the moving of less than 500 cubic yards of soil.
PERSON
Any natural person or legal entity, including but not limited to a partnership, association, or a corporation.
PREMISES
One or more contiguous parcels of land in single ownership. Parcels shall not be deemed to be contiguous if separated by a road, railroad, right-of-way, brook, stream or other natural division.
SOIL
Any earth, sand, clay, silt, gravel, topsoil, loam, rock, humus, or other similar material with or without regard to the absence or presence of organic matter.

§ 197-19 Permit required.

A. 
It shall be unlawful for any person to excavate or otherwise remove soil for use other than on the premises from which it is excavated except pursuant to an application for development within the Borough as defined in the Municipal Land Use Act, Chapter 291, Laws of 1975 (N.J.S.A. 40:55D-1 et seq.) and without first having obtained a soil moving permit from the Borough Clerk.
B. 
It shall be unlawful for any person to deposit or otherwise place soil other than on the premises from which it is excavated except pursuant to an application for development within the Borough as defined in the Municipal Land Use Act, Chapter 291, Laws of 1975 (N.J.S.A. 40:55D-1 et seq.) and without first having obtained a soil moving permit from the Borough Clerk.
C. 
It shall be unlawful for any person to remove or deposit soil except in conformance with the provisions of this article, the Soil Erosion, Sediment Control, and Flood Prevention Ordinance[1], the Zoning Ordinance and other ordinances of the Borough as may be applicable.
[1]
Editor's Note: See Art. I of this chapter.

§ 197-20 Application for soil moving permit.

A. 
Application for a soil moving permit shall be filed with the Borough Clerk and shall be accompanied by the prescribed fee. The application shall set forth the following:
(1) 
Name and address of applicant.
(2) 
Name and address of owner, if other than applicant.
(3) 
Description and location of land in question, including tax map lot and block number.
(4) 
Purpose or reason for moving the soil.
(5) 
The type of soil material and the quantity to be moved.
(6) 
Where the application is for the removal of soil, haul routes and the location where the soil will be deposited.
(7) 
Where the application is for the deposition of soil, haul routes and the location from which the soil will be removed.
(8) 
The dates on which the work will commence and be completed.
(9) 
The name, address, and telephone number of the person having direct charge or supervision of the soil movement work.
(10) 
Approval of a plan as provided by the Soil Erosion, Sediment Control, and Flood Prevention Ordinance of the Borough.[1]
[1]
Editor's Note: See Art. I of this chapter.
(11) 
Such other data as may be required by the Borough Council.
B. 
Applications for a major soil moving permit shall also include:
(1) 
A map of the area in which soil is to be removed or deposited at a scale not more than 100 feet to the inch showing existing and proposed contour lines, structures, watercourses, drainage facilities, vegetation and other features of the land, and the names of adjoining property owners.
(2) 
Cross sections of the area showing proposed excavation or fill and the quantity of soil to be removed or deposited.
(3) 
A landscaping plan. All maps, plans and other engineering data shall be prepared and duly signed and sealed by a professional engineer licensed in the State of New Jersey, and shall be submitted in triplicate with the application.

§ 197-21 Fees.

[Amended by Ord. No. 81-8; Ord. No. 96-06]
The fees as established in Chapter 127, Fees, shall accompany an application for a soil moving permit.

§ 197-22 Procedures.

A. 
Upon receipt of the complete application together with the required fee, the Borough Clerk shall deliver a copy of the application to the Borough Engineer who shall review same, inspect the site, and excepting where the application involves the removal or deposition of less than 500 cubic yards of soil, make a written report to the Mayor and Council. Thereafter, the Mayor and Council shall fix a time for hearing the application, not less than 15 days notice of which shall be given the applicant.
B. 
In cases involving the removal or deposition of less than 500 cubic yards of soil, the Borough Engineer may, if he finds that all the provisions of this article are satisfied, direct the Borough Clerk to issue a minor soil moving permit forthwith and report on the matter to the Mayor and Council at its next regular meeting. No hearing will be required.

§ 197-23 Public hearing.

A. 
After hearing the application the Mayor and Council may, at its discretion, order and schedule a full public hearing within 45 days and shall notify the applicant of the date of such hearing. The Mayor and Council shall order such hearing whenever, in its opinion, the proposed soil removal or deposition may adversely affect private or public property.
B. 
The applicant shall notify all property owners within 200 feet of the limits of the property in question at least 10 days prior to the hearing. Such notice shall be given in person or by registered mail, and shall state the time and place of the hearing, as fixed by the Mayor and Council, a description of the property in question, and a copy of the application filed with the Borough Clerk.
C. 
The applicant shall also cause notice of the public hearing to be published in the official newspaper as designated by the Mayor and Council, at least 10 days prior to the public hearing.
D. 
If the property in question lies within 200 feet of the municipal boundary, the applicant shall similarly notify the Clerk of the adjoining municipality at least 10 days prior to the hearing.
E. 
The Borough Clerk shall forward one copy of the complete application to the secretary of the Planning Board. The Planning Board shall review the application and submit a report to the Borough Clerk prior to the public hearing.
F. 
Prior to the opening of the public hearing, the applicant shall present to the Borough Clerk the following:
(1) 
Certification, in the form of an affidavit, signed and sworn by the applicant, affirming that he has notified all property owners as required.
(2) 
Proof of publication of the newspaper notice as required by Subsection C of this section.

§ 197-24 Standards governing the issuance of permits.

In considering and reviewing applications for soil moving permits, the Mayor and Council or the Borough Engineer, as the case may be, shall be guided by and shall take into consideration the public health, safety and general welfare, and particular consideration shall be given to the following factors:
A. 
Soil erosion, by wind and water.
B. 
Drainage, both surface and subsurface.
C. 
Soil fertility.
D. 
Topography and elevations of surrounding streets and lands.
E. 
Land values and land uses.
F. 
Traffic, road damage, and weather conditions.
G. 
License to enter land and restore the contours of the natural ground surface as nearly as is practicable.
H. 
Such other factors as may bear upon or relate to the physical development of the Borough and the intent of the Comprehensive (Master) Plan and Zoning Ordinance.[1]
[1]
Editor's Note: See Ch. 163, Land Development and Procedures.

§ 197-25 Conditions.

In granting permits hereunder the Mayor and Council or the Borough Engineer, as the case may be, shall have the power to impose reasonable terms and conditions in the public interest, including but not limited to the fixing of time limits and haul routes.

§ 197-26 Performance guaranty.

Prior to the issuance of a major soil moving permit, the applicant shall post with the Borough Clerk a performance guaranty in the amount to be established by the Borough Engineer and approved by the Council to guarantee full compliance with all of the terms and conditions of approval, including the provisions of this article. In addition, the guaranty shall be conditioned upon the repair at the expense of the applicant of any street or road damaged in the transportation of soil related to activities under the permit. The guaranty may be in the form of a performance bond issued by a surety approved by the Mayor and Council, a certified check returnable after full compliance, or other type of surety approved by the Mayor and Council. The form, sufficiency, and execution of the guaranty shall be discharged after all work has been completed in accordance with the approved application, including all terms and conditions of approval, or as amended or modified as provided for herein.

§ 197-27 Cash deposit.

Prior to the issuance of a major soil moving permit, the Mayor and Council shall have the right to require a cash deposit of an amount not to exceed 10% of the performance guaranty to guarantee compliance with the terms and conditions of approval, including the provisions of this article, it being understood that in the event of default the cash deposit shall be resorted to first by the Borough in pursuing its remedies. It shall also be the right of the Borough to use the cash deposit to provide for the cost of labor and material necessary to protect private and public property from damage related to work performed or the lack of work performed under the permit in the event the applicant fails to protect the property within five days after notification by the Borough Clerk. The Borough shall specifically have the right to use the cash deposit to provide for the cost of repairs to any street damaged by the transportation of soil related to activities under the permit.

§ 197-28 Subdivision construction.

A soil moving permit shall be obtained pursuant to the terms of this article in case of any subdivision in connection with which the subdivider proposes or is required to remove soil from or deposit soil upon the premises. Such permit must be obtained prior to grant of preliminary, or tentative, subdivision approval. The Mayor and Council may at its discretion and consistent with the purposes herein stated require completion or partial completion of all soil moving prior to the erection of any structures on the premises.

§ 197-29 Restrictions.

A. 
If permission to move soil shall be granted, the applicant or person in charge shall so conduct the operation that there shall be no steep declivities, pits, or depressions, and in such manner that the area shall be properly graded to conform with the approved plan pursuant to the Soil Erosion, Sediment Control and Flood Prevention Ordinance.[1]
[1]
Editor's Note: See Art. I of this chapter.
B. 
The permittee shall not remove from the premises any topsoil unless specifically authorized upon granting of the permit. Topsoil shall be stripped from the area prior to the removal or deposition of soil, and shall be stockpiled or otherwise retained on the premises. Upon completion of the soil moving activities, the topsoil shall be spread uniformly over the area.
C. 
Only such streets and roads approved or designated by the Mayor and Council or the Borough Engineer, as the case may be, shall be used for the transportation of soil. The permittee shall cause such streets to be kept free from dirt resulting from such soil moving operations.
D. 
The permittee shall fully comply with all provisions of the Soil Erosion, Sediment Control, and Flood Prevention Ordinance[2] and any and all other ordinances of the Borough as may be applicable.
[2]
Editor's Note: See Art. I of this chapter.

§ 197-30 Exemptions.

Anything herein to the contrary notwithstanding, no soil moving permit shall be required in connection with:
A. 
The removal or deposition of less than 100 cubic yards of soil.
B. 
The removal of excess soil resulting from the construction or alteration of a structure, driveway, parking area, or new street approved by the Planning Board; however a permit for the deposition of soil resulting from such activity may be required under the provisions of this article.
C. 
The removal of soil from a commercial sand, gravel, or shale pit where such activity has been conducted continuously for a period of at least six months prior to the adoption of this article provided there is compliance with all other ordinances; however, when such exempt activity is deemed by the Borough Engineer pursuant to § 197-32 of this article, to constitute a safety hazard to person or property, the Mayor and Council shall cause a notice to such effect to be served upon the owner and/or tenant. The notice shall fix a time and place when a hearing will be held and if as a result of such hearing it is determined that remedial or preventive action is necessary for the protection of the health, safety, or welfare of the public, the Mayor and Council may require compliance with such provisions of the section as may be appropriate.

§ 197-31 Conformance with Zoning Ordinance.

Nothing contained herein shall be deemed to modify or repeal any of the provisions of the Zoning Ordinance of the Borough. In the event of any inconsistency between the provisions hereof and the provisions of the Zoning Ordinance, such inconsistency shall be resolved in favor of the enforcement of the Zoning Ordinance.[1]
[1]
Editor's Note: See Ch. 163, Land Development and Procedures.

§ 197-32 Enforcement.

A. 
The Borough Engineer is hereby designated as the officer whose duty it shall be to enforce the provisions of this article. He shall also inspect or cause adequate inspection of work carried out pursuant to this article. If the Borough Engineer finds conditions other than as shown in the application or permit, or in the event of failure to comply with the plan or conditions of the permit, he may require remedial work or measures to be promptly conducted. He may also require modifications to the plan or conditions of the permit when in his judgment such are necessary to provide for the health, safety, or general welfare of the public. The Borough Engineer may also issue stop work orders and seek other penalties as provided for.
B. 
In the event of failure to comply with the requirements of this article and upon written recommendation of the Borough Engineer, the Building Inspector shall refuse to issued building permits and/or occupancy permits, and shall revoke building permits which may have been issued.

§ 197-33 Violations and penalties.

Any person, partnership, corporation, public agency, or other entity who violates any provision of this article shall be subject to a fine of not more than $500 or imprisonment for not more than 60 days, or both, for each offense. Each day that a violation occurs, persists, or is committed shall constitute a separate offense. Notwithstanding this provision, the Borough may also proceed to obtain injunctive relief to abate the condition and may seek to recover damages.

§ 197-34 Appeals.

Appeals from decisions under this article shall be made to the Borough Council in writing, such appeal to be filed with the Borough Clerk within 10 days from the date of such decision. The appellant shall be entitled to a hearing before the Borough Council within 30 days from date of appeal.