[HISTORY: Adopted by the Town of Sterling 6-14-2021 ATM by Art. 47, approved 12-10-2021.[1]. Amendments noted where applicable.]
[1]
Editor's Note: This article also repealed former Ch. 63, Earth
Removal, adopted 2-12-1951 by Art.
49, approved 11-23-1952, as amended 11-12-1973 STM by Art. 9, approved
12-6-1973; 5-4-1974 by Art. 29; 10-5-1981 STM by Art.
2, approved 1-11-1982; 4-30-1984 by Art. 39, approved 8-8-1984; 2-23-1998 by Art. 2,
approved 4-6-1998; 5-15-2000 by Art. 49, approved 6-16-2000; 5-14-2001 by Art. 46, approved 8-27-2001, and readopted 5-14-2012 ATM by Art. 19, approved
10-11-2012
The purpose of this bylaw is to protect the health and safety
of the public by regulating the removal of earth, with consideration
given to the natural topography of the Town of Sterling i) to avoid
creating hazardous conditions, washouts, excessive dust, or noise
and ii) to protect natural resources within the Town of Sterling.
Shall include soil, loam, sand, gravel, clay, rocks, minerals,
or other earth material.
The Select Board of the Town of Sterling is authorized to
grant permits for earth removal pursuant to this bylaw.
Earth removal for the purpose of extracting soil, loam, sand,
gravel, clay, rocks, minerals, or other earth material, including
establishments engaged in operating sand and gravel pits and in washing,
screening, or preparing sand and gravel for construction or industrial
uses. "Quarrying or mining" shall exclude grading of a lot in preparation
for the construction of a structure or associated appurtenances for
which a building permit or other similar permit has been issued by
the Town.
The following earth removal operations are required to obtain
an earth removal permit from the PGA under this bylaw:
A.
The following earth removal operations are exempted from the requirement
to obtain an earth removal permit under this bylaw:
(1)
Earth removal of less than an aggregate of 1,000 cubic yards in situ from a single lot or a single site within any five-year period (commencing on the date the notification of intent is filed with the PGA) and not in connection with a building permit granted by the Town of Sterling shall not require a permit under this bylaw, but operations shall be required to comply with the earth removal operation criteria set forth in § 63-7. In order to claim this exemption, the owner of the lot or site shall, at a public meeting of the PGA, file a notice of intent for earth removal with the PGA indicating full compliance with the earth removal operation criteria.
(2)
Earth removal from a single lot or a single site in connection with
a building permit granted by the Town of Sterling, so long as the
quantity shall not exceed 110% of the amount of material displaced
by the below grade portion of the construction of permitted building
or structure.
(3)
Earth removal associated with the installation of septic systems
shall be governed by the Commonwealth of Massachusetts Environmental
Code (Title 5, 310 CMR 15.000), provided that the quantity of materials
removed shall not exceed the amount of material displaced by the permitted
septic system components (septic tank, distribution box, pump chamber,
dosing chamber, grease trap, manhole and soil absorption system) below
grade as approved by the Board of Health.
(4)
Earth removal from one parcel of land to a contiguous parcel of land, held in common ownership and located within the Town of Sterling, subject to compliance with the earth removal operation criteria in § 63-7. If there is a group of parcels that are i) contiguous to each other, ii) held in common ownership and iii) located within the Town of Sterling, earth removal from one parcel of land in the group to any other parcel of land in the same group is exempt under this section. For example, an owner of four contiguous parcels on a public way would be allowed to remove earth from parcel one to parcel four since all four parcels are contiguous with at least one other parcel in the same group.
(5)
Earth removal from any parcel of land in a definitive subdivision
subject to the subdivision control process under Massachusetts General
Laws Chapter 41, as amended, that has been approved by the Planning
Board. In this instance, the Planning Board shall have full authority
to regulate the amount and disposition of earth to be removed from
such parcel(s) of land shown on the subdivision plan.
(6)
Earth removal required for a certain parcel of land subject to the Town of Sterling site plan review process as defined in Article 6, § 301-6.4, of the Town of Sterling Protective Bylaws, as amended, that has been approved by the Planning Board. In this instance, the Planning Board shall have full authority to regulate the amount and disposition of earth to be removed from such a site as shown on the site plan.
(7)
Earth removal for land falling within the Town's Wetland Resource
Area and associated buffer zones shall be governed by the Wetland
Protection Act, MGL c. 131, § 40, administered solely by
the Town of Sterling's Conservation Commission.
(8)
Earth removal operations in continuous operation prior to November
12, 1973, are permitted to continue on the same parcel(s) of land
as existed on the date of adoption of this amendment; provided, however,
an expansion of such earth removal operations to a new or additional
parcel(s) of land following the adoption of this bylaw amendment shall
require an earth removal permit consistent with this bylaw.
(9)
Earth removal from land in public use, including the extraction and
processing for road maintenance materials and safety by the Town of
Sterling from municipal-owned property by the Town of Sterling's
Department of Public Works.
(10)
Earth removal for the construction, maintenance and repair of existing
public roadways or the installation of public utilities and appurtenances.
(11)
Earth removal related to the construction, repair, and maintenance
of fire ponds, being an engineered design structure with hydraulic
capacity and a withdrawal mechanism such as a dry barrel hydrant,
shall be under the jurisdiction of the Conservation Commission.
(12)
Earth removal required in the customary use of land for agriculture of less than an aggregate of 1,000 cubic yards in situ on a single lot within any five-year period (commencing on the date the notification of intent is filed with the PGA), subject to compliance with the earth removal operation criteria in § 63-7.
A.
After a complete new permit application has been filed, the PGA shall
set a date for a public hearing under this general bylaw and so notify
the applicant. Notice of the hearing shall be given as follows:
(1)
The PGA shall publish a notice in a newspaper of general circulation
in each of two successive weeks, the first publication being not less
than 14 days before the day of the hearing.
(2)
The applicant shall give written notice of the hearing to all abutters
and abutters to the abutters within 300 feet of the property line
as shown on the most recent tax list certified by the Board of Assessors.
The applicant shall mail the written notice of the hearing to the
abutters and abutters to the abutters by regular U.S. Mail no less
than 14 days prior to the hearing. The applicant shall request a certificate
of mailing from the post office and provide it to the PGA as proof
of mailing.
B.
All publication and mailing costs shall be borne by the applicant.
Final approval for the permit shall not be made until all hearing
fees have been paid in full.
The form of the application for an earth removal permit as well
as plan requirements shall be determined in accordance with rules
and regulations adopted by the PGA.
A.
All earth removal operations shall comply with the earth removal
operation criteria listed below, unless specifically waived or modified
by the PGA at a public meeting. Applicants shall submit a written
statement certifying how each of the following criteria shall be addressed
and/or mitigated.
B.
All earth removal operations:
(2)
Shall be respectful of and work with the natural topography in order
to minimize, wherever appropriate, the amount of cut and/or fill on
the premises.
(3)
Shall not endanger the public safety, public health or constitute
a nuisance.
(4)
Shall not produce noise, dust, or other noxious effects beyond the
lot lines of the property.
(5)
Shall not result in the transportation of materials in such manner
as to cause traffic congestion, dust, spillage, noise, or other nuisances,
hazards or damage, particularly on residential streets or adjacent
land.
(6)
Shall not result in a change of topography or loss of ground cover
that shall cause soil erosion, increased rate of stormwater runoff
or adversely impact drainage on the site, adjacent streets or abutting
properties.
(7)
Shall not cause pollution or particle infiltration to surrounding
watercourses or groundwater.
(8)
Shall not result in the removal/stripping of loam in an amount that
would leave less than six inches of organic soil cover that shall
be reseeded, unless waived by the PGA, to provide vegetative cover
and be maintained until the area has been stabilized.
(9)
Shall not create a slope greater than five feet in height that exceeds
one vertical unit to two horizontal units (1:2) and does not exceed
20 feet in vertical height except when in competent bedrock as determined
by a geotechnical engineer. In competent bedrock, earth removal shall
not create a slope greater than five feet in height that exceeds one
vertical unit to one horizontal unit (1:1) and does not exceed 20
feet in vertical height.
(10)
Shall not encroach a distance of 10 feet from any property line.
(11)
Shall have a lowest excavated point no less than six feet above the
existing seasonal high groundwater table except when incidental to
the construction for which a building permit has been obtained. To
ensure this depth, the applicant shall, at applicant's expense,
install observation wells in accordance with the designated agent
of the Town of Sterling's Board of Health.
C.
The PGA may issue an order to any earth removal operation that does
not appear to comply with the earth removal operation criteria i)
to submit evidence that it does comply, ii) to bring the earth removal
operation into compliance with this bylaw, and/or iii) to obtain an
earth removal permit.
In approving the issuance of a permit, the PGA shall require conformity with the standards and requirements set forth below. The PGA may, where appropriate under the circumstances, waive, modify, state more specifically, or add to the following standards and requirements provided that the intent of this bylaw is maintained and the earth removal operation criteria stated in § 63-7 are observed. Any deviations from the following standards and requirements shall be stated as conditions to and noted upon the permit.
A.
All nonexempted earth removal operations in § 63-3 shall be required to be accompanied with an initial close out or reclamation plan in addition to a nonwaivable statement as stipulated by the PGA, and stamped by a professional civil engineer attesting that all earth removal operation criteria in § 63-7, except those for which the PGA has issued a waiver, shall be met for the duration of the earth removal. Following completion of earth removal operations, the applicant shall provide a final close out or reclamation plan as stipulated by the PGA, stamped by a professional civil engineer, along with a report or a statement signed by a geotechnical engineer stating that the geotechnical engineer has inspected the site prior, during and upon completion of earth removal operations and certifying the structural integrity of the site and related slopes as shown on the final plan.
B.
The contractor hired to perform the earth removal or the applicant,
if the applicant shall be the entity performing the earth removal,
shall provide the Town with a current certificate of liability insurance
in the amount of $1,000,000 per occurrence and $3,000,000 in the aggregate,
issued by an insurance company licensed in Massachusetts, and if the
earth removal work abuts Town-owned land or a Town-accepted way, the
certificate of liability shall name the Town as an additional insured.
The applicant shall be responsible for providing the Town with a current
certificate of insurance throughout the duration of the earth removal
operations.
C.
The site standards and requirements include:
(1)
Except for fire ponds as provided in § 63-4A(11), no area shall be excavated so as to cause the accumulation of freestanding water. Permanent drainage shall be provided as needed in accordance with accepted engineering and conservation practices. Measures shall be taken to insure that silting and sedimentation of nearby streams is not caused by a temporary or permanent drainage system on site. Drainage shall not lead directly into streams, ponds, abutting properties nor shall drainage from access roads drain directly onto public ways.
(2)
If erosion control structures are utilized, these devices shall be
in place and stabilized before excavation can begin in the affected
area. These structures shall be inspected and maintained in accordance
with the approved plan and the capacity of the structural device.
(3)
If the earth removal operation occurs in phases, one phase shall
be completed and seeded, unless waived by the PGA prior to the commencement
of the next phase.
(4)
Quarrying or mining operations shall be contained within the current
property limits, as shown on the plan. The expansion to additional
property must be authorized by a new permit by the PGA.
(5)
During earth removal operations, a fence or suitable barrier shall
be erected, as deemed necessary and approved by the PGA.
(6)
Operations shall be conducted during the hours of 7:00 a.m. to 5:00
p.m., Monday through Saturday. No earth is to be excavated or removed
on Sundays or Massachusetts legal holidays. These hours of operation
may be altered only upon written authorization of the PGA. Loaded
trucks shall leave the premises only during permitted hours. All loaded
vehicles shall be suitably covered to prevent dust and contents from
spilling and blowing from the load.
(7)
All trucking routes and methods may be subject to approval by the
Chief of Police and the Superintendent of Public Works.
(8)
Earth removal permits are only transferable upon approval of the
PGA in its sole discretion and shall automatically expire on the earliest
to occur of i) one year from the date of issuance, ii) completion
of the earth removal for which it was issued, or iii) at such time
as may be specified in the permit. In no case shall a permit be issued
for a period longer than one year. A permit may be renewed by the
PGA in its sole discretion after evidence is presented that i) all
conditions of the expiring permit have been complied with and ii)
the work authorized under the permit was delayed for good cause. All
renewal applications shall be filed not more than 90 days nor less
than 30 days prior to the expiration of the then current permit and
shall include a copy of the previous conditions of approval. When
the applicant intends to increase the scope of the earth removal,
a new application and public hearing shall be required.
D.
This bylaw was adopted in conjunction with eliminating a requirement
in the Protective Bylaws of the Town of Sterling that an applicant
be granted a variance by the Zoning Board of Appeals for earth removal
over 1,000 cubic yards if the lot or site was located in a Rural Residential
(RR) or Neighborhood Residential (NR) Zoning District. That requirement
was deemed to be too restrictive. Therefore, any permits granted by
the PGA under this bylaw will be at the reasonable discretion of the
PGA, taking into account all of the facts and circumstances of the
application, the zoning district in which the property is located,
the intended use or uses of the property, and the amount of earth
the applicant desires to remove.
A.
All debris, stumps, boulders, and similar material shall be removed
from the site or disposed of in an approved location on site. The
PGA may, at its sole discretion and where appropriate, require areas
to be reseeded so as to provide a vegetative cover with a minimum
of six inches of organic soil cover that shall be maintained until
the area is stabilized. Vegetation not surviving one growing season
shall be replanted by the applicant in accordance with standard U.S.
Department of Agriculture Natural Resources Conservation Service methods
in order to prevent erosion. Alternatives to this method of site reclamation
or close out shall be subject to the approval of the PGA.
B.
Upon completion of the operation, the land shall be left so that
the natural drainage flow exits the property at the original drainage
points or empties into the original drainage channel; and when it
does so, the volume of runoff or flow at any one point is not increased
above that which was normal for that particular point in the absence
of the earthwork operation. This shall be documented and certified
by a professional civil engineer upon the close out or reclamation
plan as stipulated by the PGA.
C.
All large stones and boulders that protrude above the finished grade
shall be removed or buried. Alternatives to this method of site reclamation
or close out shall be subject to approval by the PGA.
A.
Engineering review consultant. The PGA, at its sole discretion, may
determine that a proposed project's size, scale, complexity,
or potential impact warrants retaining the use of licensed professional
independent consultants in any given respective field. Such consultants
shall provide professional guidance to assist the PGA with the necessary
review and analysis needed to make informed decisions that comply
with all relevant laws and regulations regarding complex issues, including
hydrological testing, noise analysis, and other analyses deemed necessary.
The PGA shall select and retain for a reasonable fee such consultants
at the expense of the applicant, in accordance with the provisions
of MGL c. 44, § 53G.
B.
Bonding and security. In determining the effect upon the Town, the PGA shall require a surety bond, in a form approved by Town Counsel and issued by a surety licensed by the Commonwealth of Massachusetts, which shall not expire until all conditions of the permit have been satisfied. The bond shall be for an amount estimated to meet the conditions of the permit, in the event the earth removal operations are abandoned, and the Town must take steps to secure the site, and to satisfy the requirements of § 63-9, Site reclamation or close out.
C.
Release. After completion of work, the applicant shall submit a close
out or reclamation plan as stipulated by the PGA, prepared by a registered
professional engineer, showing grades at the conclusion of the operation,
along with a report by a geotechnical engineer certifying that the
site and resulting slopes are stable. The PGA shall release the bond
after the submission of the plan and with a determination that the
permit conditions have been met and when sufficient time has lapsed
to ascertain that vegetation planted has successfully been established
and that drainage is satisfactory.
A.
As a condition of receiving a permit, the applicant authorizes the
PGA and/or its engineering consultant to: i) enter on the site to
conduct inspections on behalf of the PGA and ii) inspect the relevant
business records of the operator of the earth removal operation, including
the delineation of the area to be removed. The PGA and/or its engineering
consultant shall contact the applicant in advance to arrange such
inspections.
B.
If a violation of this bylaw or any condition of a permit is suspected,
the PGA shall, at a public meeting and after notifying the permit
holder and/or the operator of the earth removal operation, in writing,
determine whether a violation exists or occurred. The PGA shall take
appropriate action, up to and including issuing a fine, ordering the
permit holder and/or earth removal operator to cure the violation,
imposing additional conditions to safeguard against the violation,
or issuing an order to cease earth removal operations.
C.
In the case where an emergency cease-and-desist order requiring immediate
cessation of all work on the property is warranted, the PGA shall
designate an agent to serve the order regarding the violation. The
PGA shall hold a public hearing to review the facts and to determine
whether a violation has occurred. If a violation is found, the PGA
may revoke, revise, or modify the conditions or restrictions of the
permit.
D.
If a permit holder and/or operator of earth removal operation persists in such violation, the PGA shall, after notifying the permit holder and/or the operator of the earth removal operation, in writing, seek an imposition of penalties authorized by MGL c. 40, § 21, Paragraph 17, and shall be subject to a fine of not more than $50 for the first offense, not more than $100 for the second offense and not more than $200 for any subsequent offense. Each day during any portion of which such violation is allowed to continue shall be considered a separate offense. This bylaw may also be enforced through the noncriminal disposition procedures set forth in MGL c. 40, § 21D, and impose fines up to the amount of $300, as provided in Chapter 1, Article III, of the Town's General Bylaws.
E.
The PGA may seek injunctive relief to restrain violations or to compel
abatement or remediation of violations.
F.
If the violator holds a permit issued under this article, the PGA
may, after a public meeting and after notifying the permit holder
and/or the operator of the earth removal operation, in writing, either
i) revoke the permit or ii) suspend the permit, at which point all
operations shall cease until such time as the necessary measures are
taken to assure compliance with this chapter and a new permit or reinstatement
of existing permit is issued.
The PGA may adopt and periodically amend rules and regulations
for the implementation of this chapter by majority vote after conducting
a public hearing concerning such amendments. The hearing shall be
published by the PGA in a newspaper of general circulation in each
of two successive weeks, the first publication being not less than
14 days before the day of the hearing. Such rules and regulations
may set forth performance standards for earth removal, impose filing
and consultant fees, define additional terms not inconsistent with
this chapter, and establish administrative procedures. Failure by
the PGA to adopt such rules and regulations or a legal declaration
of their invalidity by a court of law shall not act to suspend or
invalidate the effect of this chapter.
Appeals of the decisions of the PGA shall be conducted in accordance
with MGL c. 249, § 4, as amended.
The provisions of this bylaw are severable, and the invalidity
of any section, subsection, paragraph, or other part of this bylaw
shall not affect the validity or effectiveness of the remainder of
the bylaw.
Upon adoption of this bylaw by a majority of voters during a Town Meeting and following approval of this bylaw by the Attorney General, the Earth Removal Board shall be dissolved. All current earth removal permits shall remain valid and shall transfer under the jurisdiction of the PGA under this amended bylaw. Following approval of this bylaw by the Attorney General, all pending and future earth removal issues shall be processed according to §§ 63-1 through 63-14.
