[HISTORY: Adopted by the Mayor and Council of the Township
of Berlin 9-23-1996 by Ord. No. 1996-28 (Ch. 96 of the 1976 Code). Amendments
noted where applicable.]
This chapter shall be known and may be cited as the "Berlin
Township Resource Extraction Ordinance."
For the purpose of this chapter, unless a different meaning
clearly appears from the context, the following words shall be defined
to include and to mean the following:
The impact on the environment which results from the incremental
impact of the action when added to other past, present and reasonably
foreseeable future actions.
Includes:
Direct effects, which are caused by the action and occur at
the same time and place.
Indirect effects, which are caused by the action and are later
in time or farther removed in distance but are still reasonably foreseeable.
Indirect effects may include growth-inducing effects and other effects
related to induced changes in the pattern of land use, population
density or growth rate and related effects on air and water and other
natural systems, including ecosystems.
"Effects" and "impacts," as used in this chapter, are synonymous.
"Effects" include ecological, aesthetic, historic, cultural, economic,
social or health, whether direct, indirect or cumulative. "Effects"
may also include those resulting from actions which may have both
beneficial and detrimental effects, even if, on balance, the permittee
believes that the effect will be beneficial.
A lot or lots which are, at the time of adoption of this
chapter, being extracted as part of the regular business of the permittee,
and shall include the entire tract of land on which the permittee
has a valid permit currently in effect. Adjacent and/or contiguous
land not presently under permit shall not be considered an existing
resource extraction operation.
The Mayor and Township Council of the Township of Berlin.
Any parcel of land or portion thereof, the boundary lines
of which can be ascertained by reference to the maps and records,
or either, in the office of the Tax Assessor of the Township of Berlin
or in the office of the Camden County Register of Deeds.
One who is issued a permit or a renewal permit under the
terms hereof.
Includes any person, firm, partnership, association, corporation,
company or organization of any kind.
One or more lots or contiguous parcels of land in single
ownership, which ownership can be ascertained by reference to the
maps and records, or either, in the office of the Tax Assessor of
the Township of Berlin or in the office of the Camden County Register
of Deeds.
Both surface (topsoil) and subsoil and shall include dirt,
stone, gravel, sand, humus, clay, loam, rock, ammonite and mixtures
of any of these.
The Township of Berlin, Camden County, State of New Jersey.
The Municipal Clerk of Berlin Township or designee.
The Township of Berlin finds that for the public health, safety
and general welfare of its citizens, all resource extraction operations
are now prohibited throughout the Township of Berlin. The prohibition
set forth in this section shall not apply to any existing extraction
operation. Any existing resource extraction operation may continue
to operate within the Township of Berlin, except that any existing
resource extraction operation shall be subject to the applicable licensing,
permitting and regulating requirements set forth herein. Upon adoption
of this chapter, any existing operation shall have 60 days to make
application for a permit.
No person or owner shall cause, allow, permit or suffer any
excavation for the removal of soil or otherwise remove soil for sale
or for use other than on the premises from which the soil shall be
taken without first having obtained a permit therefor approved by
the governing body. Said permit or a true copy thereof shall be conspicuously
posted and displayed on the entrance to the premises. Notwithstanding
the above, the extraction or mining of soil, other than sand, gravel,
clay and ilmenite, is prohibited in the Pinelands Area.
Before the issuance of a permit, the applicant shall make application
therefor to the office of the Township Clerk and furnish in said application
and accompanying documents the following:
A.
The name and address of the applicant; if the applicant is a partnership,
the partnership name and business address, together with the names
of all partners and their residential addresses; if the applicant
is a corporation, the name of the corporation, the place of business
of such corporation, the date and state of incorporation, the names
and addresses of all officers and the positions held in such corporation,
together with the names and addresses of all directors of such corporation,
the names and addresses of all stockholders holding 10% or more of
the stock of the corporation and the name and address of the legal
representative of the corporation.
B.
The name and address of the owner or owners of the premises involved;
if the owner or owners are a partnership then the partnership name
and business address and the names of the partners, together with
their residential addresses; if the owner is a corporation, the name
of the corporation, its place of business, the date and state of incorporation,
the names and addresses of all officers and the positions held in
the corporation, the names and addresses of all directors, the names
and addresses of all stockholders holding 10% or more of the stock
of the corporation and the name and address of the legal representative
of the corporation, if any.
C.
A detailed description of the premises and its location, together
with the Berlin Township Tax Map plate, block and lot number or numbers
where the excavation or soil removal is to be conducted.
D.
A map of the premises for which the permit is sought, showing the
existing topographical contour lines of the land involved and abutting
lands and roads within 300 feet, together with a copy of the United
States Geological Survey quadrangle sheets showing topographical information
within one mile of the premises; the proposed topographical contour
grades which will result from the intended soil removal; all roads
and buildings, streams and bodies of water within 300 feet of the
premises; the names and addresses of adjoining landowners within 300
feet; existing water drainage conditions; all wooded areas; the limit
of the area or areas on the premises within which the soil operations
or removal is to be conducted and the dimensions of the premises or
lot; the existing elevations of the lands, buildings, structures,
streets, streams, bodies of water and watercourses on the premises
or lot and the proposed final elevations at each point where existing
elevations are shown on the map which are to be changed as a result
of completion of the proposed work; the proposed slopes and lateral
supports at the limits of the areas upon completion of the excavations
and soil removal operations; the proposed provisions and facilities
for water drainage; and an accurate cross section or sections showing
the location or locations and quantities, in cubic yards, of soil
to be removed. The map shall be prepared by a licensed engineer of
the State of New Jersey.
E.
If the owner is not the applicant, written consent of the owner to
the application and proposed excavation and soil removal shall be
submitted with the application as well as a statement of the relationship
between the owner and the applicant.
F.
Plans showing the place or places where the entrances or exits to
the excavation or area of soil removal operation, fences or buildings
are to be located.
G.
A statement and list of the type of equipment and apparatus to be
used in the excavation and soil removal operation. If there is to
be any change in the equipment being utilized, same must also be approved
by the governing body.
H.
A statement that the hours of operation will not exceed 6:00 a.m.
to 6:00 p.m., Monday through Saturday. Such restriction shall apply
only to the entering and/or exiting of trucks but shall not be applicable
to any on-premises mining process equipment such as pumps, conveyors,
loaders, and dredges unless the governing body finds that the extraction
operation is within 1,000 feet of any existing residential premises
at time of approval.
I.
Proof of liability insurance coverage in amounts of not less than
$1,000,000 total for each accident causing personal injury and $500,000
for property damage for each accident. If available and economically
feasible, specific environmental cleanup insurance shall be purchased
by the applicant with limits to be set by the governing body. This
requirement may be waived or otherwise reduced by the governing body
upon request.
J.
The applicant's best estimate of the total cubic yards of soil to
be removed pursuant to the permit.
K.
The applicant's best estimate of the period of time for which the
excavation or soil removal operations will be conducted and the removal
completed.
L.
A reclamation plan, which includes:
(1)
Method of stockpiling topsoil and overburden;
(2)
Proposed grading and final elevations;
(3)
Topsoil material application and preparation;
(4)
Type, quantity and age of vegetation to be used;
(5)
Fertilizer application including method and rates;
(6)
Planting method and schedules; and
(7)
Maintenance requirements schedule.
M.
A signed acknowledgement from both the owner and the applicant that
they are responsible for any resource extraction activities which
are contrary to any provision of this section or of the approved resource
extraction plan done by any agent, employee, contractor, subcontractor
or any other person authorized to be on the parcel by either the owner
or the applicant.
N.
Subject to the requirements of § 262-16, a financial surety, guaranteeing performance of the requirements in the form of a letter of credit, certified check, surety bond or other recognized form of financial surety acceptable to the Township. The financial surety shall be equal to the cost of restoration of the area to be excavated during the duration of any approval which is granted. The financial surety which shall name the Township as the obligee, shall be posted by the property owner or his agent with the Township.
O.
Environmental impact statement.
Attached to the application for a renewal of a permit shall
be an environmental impact statement, in accordance with 42 U.S.C.
§ 4331 et seq. The environmental impact statement shall
include the following:
A.
Purpose. The environmental impact statement shall provide a full
and fair discussion of significant environmental impacts. Statements
shall be concise, clear and to the point and shall be supported by
evidence that the applicant has made the necessary environmental analysis.
B.
Implementation. To achieve the purposes in Subsection A, applicants shall prepare environmental impact statements in the following manner:
(1)
Environmental impact statements shall be analytic rather than encyclopedic.
(2)
Impacts shall be discussed in proportion to their significance. As
in a finding of no significant impact, there should be only enough
discussion to show why more study is not warranted.
(3)
Environmental impact statements shall be kept concise.
(4)
Environmental impact statement shall include a four season study
of the impact and effect of the operation on the environment and shall
include a twenty-year projection and impact analysis.
(5)
Environmental impact statements shall serve as the means of assessing
the environmental impact of proposed applicant's actions.
(6)
All factual representatives contained in the statement shall be under
oath or affirmation.
C.
Timing. An applicant shall commence preparation of an environmental
impact statement as close as possible to the time the applicant shall
submit his application for renewal of a permit so that preparation
can be completed in time for the final renewal statement to be included
with the permit application.
D.
Writing. Environmental impact statements shall be written in plain
language and may use appropriate graphics so that decision makers
and the public can readily understand them.
E.
Recommended format. Applicants shall use a format for environmental
impact statements which will encourage good analysis and clear presentation
of the alternatives included in the proposed action. The following
format should be followed unless there is a compelling reason to do
otherwise:
F.
Cover sheet. The cover sheet shall not exceed one page. It shall
include:
G.
Summary. Each environmental impact statement shall contain a summary
which adequately and accurately summarizes the statement. The summary
shall stress the major conclusions, adverse impacts and the issues
to be resolved. The summary should normally not exceed 10 pages.
H.
Affected environment. The environment impact statement shall succinctly
describe the environment of the area(s) to be affected. Data and analyses
in a statement shall be commensurate with the importance of the impact,
with less important material summarized, consolidated or simply referenced.
Verbose descriptions of the affected environment are themselves no
measure of the adequacy of an environmental impact statement.
I.
Unavoidable adverse impacts. This discussion will include the environmental
impacts of the proposed action, any adverse environmental impacts
of the proposed action, any adverse environmental effects which cannot
be avoided should the proposal be implemented; the relationship between
short-term impacts on the immediate site environs and the maintenance
and enhancement of long-term productivity and any irreversible or
irretrievable commitments of resources which would be involved in
the proposal should it be implemented. It shall include discussions
of:
(1)
Direct effects and their significance.
(2)
Indirect effects and their significance.
(3)
Possible conflicts between the proposed action and the objectives
of local land use plans, policies and controls for the area concerned,
including a discussion of possible conflicts between the proposed
action and the objectives of the New Jersey Pinelands and Wetlands
Commissions.
(4)
Energy requirements and conservation potential of various alternatives
and mitigation measures.
(5)
Natural or depletable resource requirements and conservation potential
of various alternatives and mitigation measures.
(6)
Means to mitigate adverse environmental impacts.
J.
List of preparers. The environmental impact statements shall list
the names, together with their qualifications (expertise, experience,
professional disciplines), of the persons who were primarily responsible
for preparing the environmental impact statement or significant background
papers, including basic components of the statement. Where possible,
the persons who are responsible for a particular analysis, including
analyses in background papers, shall be identified.
K.
Appendix. If an applicant prepares an appendix to an environmental
impact statement, the appendix shall:
[Amended 4-29-2019 by Ord. No. 2019-3]
The fee(s) payable hereunder shall be as set forth in Chapter 156, Fees.
A.
In addition to the nonrefundable fee provided in § 262-7, the Township Engineer shall issue a report to the applicant and to the governing body 10 days prior to the hearing, regarding an escrow account to be provided by the applicant to cover the costs of professional services to be incurred by the governing body for the purposes of reviewing an application and issuing reports thereon. The Township Engineer's report shall include the following if the inspection is to be performed by other than the Township Engineer or a member of his staff:
A.
The application, other required documents and the following accompanying
documents shall be filed with the Township Clerk:
(1)
Fee;
(2)
The report of the Township Engineer and any other professionals selected by the governing body in accordance with § 262-8 hereof;
(3)
A copy of the resolution of final approval of any other appropriate
board or agency which may be necessary;
(4)
A copy of the Camden County Soil Conservation District approval.
B.
Within 10 days of the receipt of all of the above required reports
and recommendations, the Township Clerk shall fix the time, place
and date of a public hearing to be conducted by the governing body
upon the application and shall notify the applicant thereof. The public
hearing shall be held within 30 days of the issuance of notice to
the applicant by the Township Clerk.
C.
Also, in the event of such hearing, the applicant shall cause public
notice of the application and the time, place and date of public hearing
to be published in a legal newspaper of the Township at least 10 days
prior to the date of the hearing. Said publication shall also indicate
the premises for which the permit is sought by plate, block and lot
number, as well as by a street address or general location. An affidavit
of advertisement shall be provided to the Township Clerk prior to
said hearing.
The applicant shall also provide notice to all property owners
within 300 feet of the time, place and date by certified mail, return
receipt requested; said property owner notice shall be at least 10
days prior to the date of the hearing, and a proof of mailing shall
be provided to the Township Clerk prior to the hearing.
A.
At the public hearing, the applicant shall have the right to present
testimony and further evidence and the governing body may receive
testimony and further evidence or information from any interested
person and reports from any Township official or employee relevant
to the application and the issuance of a permit.
B.
In considering and reviewing the application, and in arriving at
its decision, the governing body shall be guided and take into consideration
the reports and evidence adduced at the public hearing and the effect
of the issuance of the permit on the public health, safety and general
welfare and particularly, but not in limitation thereof, the following
factors:
(1)
Soil erosion by water and wind;
(2)
Drainage or sewerage problems;
(3)
The effect on the water table and/or aquifer which may be affected;
(4)
Soil fertility;
(5)
Lateral support slope and grades of abutting roads and lands;
(6)
Past and/or present violations of the applicant or of any persons or entity named in § 262-5A regarding violation of any federal, state or municipal law, ordinance or administrative regulation;
(7)
Land value and uses of subject parcels;
(8)
Such other factors as may bear upon or relate to the coordinated,
adjusted and harmonious physical development of the Township and any
environmental impact thereon.
C.
If the governing body is of the opinion and determines that the proposed
excavations or soil removal will not have an adverse effect on the
above considerations and will not create conditions inimical to the
public health, safety and welfare and will not result in soil erosion
or fertility problems, will not adversely affect the water table and/or
existing aquifers, will not create any drainage or sewerage problems
or other conditions of danger to life, personal safety or property,
then the governing body shall, by resolution, approve the application
and accompanying documents subject to such reasonable conditions or
restrictions designed to meet the engineering recommendations or other
adverse objections to the application or proposed excavations or soil
removal as the governing body may impose. If any application is so
approved by the governing body and the applicant complies with all
other provisions of this chapter, and further complies with any and
all conditions imposed by the governing body within 30 days of the
imposition of said conditions or within such other time limits as
the governing body may impose, then the Township Clerk, within 10
days thereafter, shall issue a permit in accordance with such approval
and pursuant to the provisions of this chapter. If the application
is not approved by the governing body, then the Township Clerk, within
10 days of such determination, shall notify the applicant in writing
of such denial, together with the reasons therefor. The governing
body resolution either approving or denying the permit shall be in
writing and shall set forth the findings of fact and conclusions.
D.
Notwithstanding anything herein to the contrary, it shall be a condition
precedent to the approval of any application or the issuance of any
permit under this chapter that an application for soil removal be
first filed with the Camden County Soil Conservation District and
that the Camden County Soil Conservation District approve such soil
removal.
The permit shall be on a form approved by the governing body.
It shall be dated as of the date it is actually issued by the Township
Clerk and shall be signed by the Clerk. The term of the permit shall
be five years from the date of issuance thereof.
No excavation shall be made or soil removed, nor shall any operation
be conducted, so as to violate any of the conditions set forth in
this chapter after a permit is issued unless otherwise approved by
the governing body.
A.
The permittee shall permit inspection of the premises for the purpose of determining whether or not the permittee is in full compliance with its permit as well as full compliance with all applicable ordinances, statutes, and relevant administrative rules and regulations. Said inspections of the premises shall be permitted at any reasonable time by such person or persons assigned to conduct such inspections as set forth in the Township Engineer's report pursuant to § 262-8. Such inspections may include the depth of the pit. The permittee shall pay the cost thereof, which costs shall be included as part of the escrow fee which is deposited with the Township pursuant to § 262-8 hereof, or as guaranteed by the letter of credit.
A.
Upon 10
days' notice and an opportunity to be heard before the governing body,
the permit of any person may be revoked or suspended for such time
or period as the governing body may determine for any violation of
the terms hereof or the terms and conditions of any permit granted
or issued hereunder.
B.
The hearing
conducted pursuant to this section shall be held not less than 10
days from the date the permittee receives written notice of said hearing.
The permittee shall be permitted to present evidence at such hearing,
and a verbatim transcript will be kept of the proceedings. Upon the
close of the hearing, the governing body shall set forth by written
resolution its findings of fact and conclusions.
C.
The permittee
shall be given a reasonable amount of time to be set by the governing
body to correct any violations during a period of suspension. If said
violations are not corrected within the time period allotted, the
permit may be revoked.
D.
Appeal
may be taken to the New Jersey Superior Court by the permittee in
accordance with the applicable rules of court.
On application of the applicant or operator and for good cause shown, the governing body may specifically waive any section or provisions of this chapter in whole or in part with the exception of § 262-5N.
A.
The application for such permits shall also contain the following
information:
(1)
A plan for the eventual rehabilitation and use of the site covered
by the permit after the resources have been removed, which conforms
to the terms of this chapter. Such a plan, at a scale of not less
than one inch to 400 feet, showing topographic contour intervals at
not less than 10 feet, should be adaptable to the particular surroundings
and in general agreement with the Township Master Plan, when adopted.
The plan shall show the proposed treatment of the channel of any stream
within the rehabilitation area and limits of excavation which will
protect, as much as is reasonably possible, the natural or improved
channel and any adjacent wooded areas considered vital to the function
of the rehabilitated area.
B.
The application for a permit or the renewal of a permit shall be
accompanied by an agreement from the applicant to faithfully perform
and comply with all applicable performance standards set forth in
this chapter at the time of the application. In the event that the
governing body has reasonable doubt about the applicant's financial
responsibility to perform the promise, it may request the applicant
to submit reasonable, satisfactory evidence of financial responsibility,
which will be reviewed on a confidential basis and not made public
in any manner. In the event there is not reasonable, satisfactory
evidence of the applicant's financial responsibility to perform the
promise, the governing body may require, as a condition of granting
the permit, that the applicant deposit, pledge or place in escrow
or in some other satisfactory form, with right of substitution, including
the possible use of a surety bond, certain reasonable amounts of security
with rights of substitution for the faithful performance of and compliance
with all the performance standards set forth in the rehabilitation
plan. In the event that security is required, said security shall
be provided in an amount determined by the Township Engineer in accordance
with the plan of rehabilitation submitted to the governing body. Any
security required shall be held or shall continue for the term of
the permit while the land is rehabilitated or until adequate evidence
of financial responsibility is presented. Any promise of security
required herein shall be terminated 10 days after the applicant or
others on his behalf shall have delivered to the governing body the
certificate of a registered professional engineer or licensed surveyor
setting out that area upon which release of the security is sought
has been rehabilitated in substantial compliance with the requirements
of the rehabilitation plan or some amended or alternative plan mutually
satisfactory to the Township Engineer. Any security shall be so drafted
that if the permit expires as provided herein and the site is not
rehabilitated within 18 months thereafter the security shall be forfeited
to pay for the rehabilitation of the site according to the rehabilitation
plan.
The following performance standards are required for mining:
A.
Standards relating to property.
(1)
All equipment used for mining shall be constructed, maintained and
operated in such a manner as to reduce, as far as is practical, noise,
vibration and dust.
(2)
Setbacks. Extraction shall not be conducted closer than 100 feet
to the boundary of any zone where such operations are not permitted,
nor shall such extraction be conducted closer than 100 feet to the
boundary of an adjoining property line, unless the written consent
of the owner of such adjoining property is first secured. Extraction
shall not be conducted closer than 150 feet to the center of the right-of-way
line of any dedicated and accepted street, road or highway.
(3)
Buildings shall conform to the schedule of minimum requirements for established districts as set forth in Chapter 340, Zoning, of the Code of the Township of Berlin.
(4)
Restriction of access. For any excavation within a 1/4 mile radius
of which there are more than 25 single family residential units and
which excavation results in or produces, for a period of at least
one month, collections of water or slopes at least as steep as 1 1/2
feet horizontal to one foot vertical, there shall be placed a gate
or guard across all access roads to public highways.
(5)
Roads. All access roads from extraction operations to public highways,
roads or streets or to adjoining property shall be paved, treated
or watered so far as is practicably to minimize dust nuisances.
B.
Standards relating to production and processing.
(1)
All mining operations shall be conducted in a manner not inconsistent
with the rehabilitation plan and in such a manner that the objectives
of the plan may be realized after the sand and gravel have been removed.
(2)
If overburden is stockpiled in either windrows or concentrated piles,
it shall be stabilized in a manner so that it does not become a source
of dust and dirt to adjacent property owners. Topsoil, when practicable,
shall be stockpiled separately from the rest of the overburden.
(3)
No operation shall accumulate or discharge beyond the property lines
any waste matter in violation of the applicable standards of the New
Jersey State Department of Health or other regulatory agency.
C.
Standards relating to land rehabilitation.
(1)
The parties to the permit for extraction mining are responsible for
the rehabilitation of the area is substantial compliance with the
rehabilitation plan on file with the Township Committee.
(2)
Dry-pit rehabilitation. The dry pit may be backfilled with sand,
gravel, overburden, topsoil or other non-noxious, nonflammable, noncombustible
solids. For excavations backfilled and rehabilitated, the following
requirements shall be met:
(a)
The graded or backfilled area shall not permit stagnant water
to collect or remain therein.
(b)
The finished topography and surface of the area shall be in
such a manner as to not be uncomplimentary with the surrounding area.
(c)
The finished final condition of the area shall be in substantial
compliance with the rehabilitation plan.
(3)
Wet-pit rehabilitation. Like dry-pit rehabilitation, the wet pit
may be filled. Filling must be accomplished in accordance with the
conditions set for dry-pit rehabilitation. In the alternative, the
wet pit may be converted into a lake, in accordance with the rehabilitation
plan approved by the governing body.
(a)
All banks shall be sloped to the waterline at a slope which
shall not be steeper than three feet horizontal to one foot vertical,
and that a maximum slope be required of 10 feet to one foot for a
distance of 50 feet along each side of the water's edge, along the
perimeter.
(b)
All banks shall be stabilized unless otherwise called for on
the approved rehabilitation plan.
(c)
Stabilization shall be accomplished by surfacing with soil of
a quality at least equal to the topsoil of land areas immediately
surrounding.
(d)
Such topsoil as required by Subsection C(3)(c) above shall be planted with trees, shrubs, legumes or grasses upon the parts of such area where revegetation is possible. Topsoil thickness shall be a minimum of six inches.
(e)
The finished condition of the rehabilitated area shall be in
substantial conformance with the rehabilitation plan.
(4)
The governing body shall require reforestation on a case-by-case
basis as determined necessary from the extent of the excavation and
surrounding land use.
In recognition of the fact that there may arise in connection
with this chapter problems of such a nature that some degree of expertise
is required in order to best evaluate such problems in light of the
purpose of this chapter and the public interest, said responsibility
shall be delegated to the Planning Board of Berlin Township, which
body shall consider such problems as may arise under this chapter
and shall, subsequent to such consideration, make recommendations
to the governing body in connection with any action to be taken, which
recommendations may include the advisability of the granting of a
waiver or waivers. The governing body shall in no way be bound by
the recommendations of this Board, which shall at all times act exclusively
in an advisory capacity.
Any person who violates any of the provisions of this chapter
and/or engages in excavating, extracting or mining soil or other natural
resources within the Township of Berlin shall be subject to a fine
of not more than one $1,000 and/or imprisonment in the county jail
for not more than 90 days, or both, per day for each day of violation.
