Township of West Milford, NJ Chapter 460 Soil Removal and Soil Fill

[HISTORY: Adopted by the Township Council of the Township of West Milford 5-16-1990 by Ord. No. 1990-16, as amended through 1993; amended in its entirety 7-14-2021 by Ord. No. 2021-025. Subsequent amendments noted where applicable.]

GENERAL REFERENCES

Flood damage prevention — See Ch. 158.

§ 460-1 Purpose and findings.

A. The Township Council finds that the unregulated and uncontrolled excavation, removal, placement and movement of soil and other mineral deposits can result in conditions detrimental to the public safety, health and general welfare. Such conditions substantially hamper and deter the efforts of the Township to effectuate the general purposes of municipal planning. Soil removal, movement operations, and filling operations should relate to the overall physical development of the area within which the operation is located. It is essential that all soil removal, movement operations and filling operations be reviewed and approved by the Township Planning Board or Township Engineer. All soil removal, movement operations, and filling operations must be conceived and operated in such a way that there will be no appreciable harmful effects to the environment. In order to best ensure that all soil removal, movement operations, and filling operations are an asset to the Township of West Milford, rather than a liability, all such operations shall adhere to the conditions, restrictions and provisions outlined in this chapter.

B. All operations performed pursuant to this chapter shall be in compliance with the applicable state laws and regulations related to A-901 licenses, specifically N.J.S.A. 13:1E-126 et seq. and N.J.A.C. 7:26.

§ 460-2 Definitions.

The words defined in this section shall mean and include the following when used in this chapter:

ACCEPTABLE SOIL/FILL

Nondecomposable, inert solids such as soil, fill, subsoil, topsoil, sand, clay, loam, gravel, humus, rock, concrete, brick, glass, and/or clay or ceramic products, free of construction/demolition debris, garbage, refuse, or sludge and not containing concentration of one or more contaminants that exceed New Jersey Department of Environmental Protection Residential Direct Contact Soil Remediation Standards or Non-Residential Direct Contact Soil Remediation Standards, whichever is more stringent, as set forth in N.J.A.C. 7:26D, Remediation Standards.

APPLICANT

The property owner/developer requesting a soil permit as provided for in this chapter.

APPROVED PLAN

A plan for the placement of soil fill approved by the Township Engineer (minor permit) or by the Township Planning Board (major permit) pursuant to the provisions of this chapter.

CONSTRUCTION/DEMOLITION DEBRIS

Mixed waste building material and rubble resulting from construction, remodeling repair, and demolition operations on houses, commercial buildings, pavements and other structures that includes, but is not limited to, treated and untreated wood scrap, tree parts, tree stumps and brush, plaster and wallboard, roofing materials, corrugated cardboard and miscellaneous paper, ferrous and nonferrous metal, nonasbestos building insulation, plastic scrap, carpets and padding, and other miscellaneous materials.

CONTAMINATED PROPERTY

Any property, including but not limited to structures, sediment, soil and water that contains a contaminant which is present at such levels or concentration as to require action pursuant to any federal or state statutes or regulations.

CONTAMINATED SOIL/FILL

Any soil containing contaminants exceeding the current requirements for the most stringent concentrations between the Non-Residential and Residential Direct Contact Soil Remediation Standards pursuant to N.J.A.C. 7:26D, Remediation Standards.

DREDGED MATERIAL

Sediments removed from under a body of water such as, but not limited to, a bay, harbor, lake, stream and river, removed during a dredging operation or otherwise that are displaced or removed to another location.

FARM

Qualified commercial farms or farmland assessed properties.

FILL

Material placed at a location for the purpose of filling low areas, changing the contours of an area, stabilizing existing grades and/or raising the grade of an area. Fill usually consists of soil, but may also include non-water-soluble, nondecomposable, inert solids such as rock, gravel, brick, block, and/or clay or any combination thereof.

MAJOR SOIL PERMIT

A permit for the movement of more than 500 cubic yards of soil.

MINOR SOIL PERMIT

A permit for the movement of more than 100 cubic yards of soil but less than 500 cubic yards of soil. The volume of fill shall be cumulative for the property in the case of multiple permits in any three-year period.

PERMIT

A soil permit.

PERSON

Includes an individual, a partnership, a corporation or any other legal entity.

PLANNING BOARD

The Planning Board of the Township of West Milford.

SOIL

Includes dirt, stone, gravel, sand, humus, clay, loam and mixtures of any of these, but this shall not include quarry process or rock products utilized in the construction of roads, driveways or similar types of construction.

TOPSOIL

The arable soil within eight inches of the surface.

TOWNSHIP

The Township of West Milford.

§ 460-3 Permit required.

A. No person shall excavate, scrape, dig, quarry, fill or otherwise disturb the soil on any premises in the Township of West Milford for use on the premises from which it shall be taken or placed; nor shall any person remove or cause the removal of any soil from any premises in the Township of West Milford for use on other premises or fill or cause the placement of any soil on any premises in the Township of West Milford whether such removal or fill be for sale, gift or otherwise, unless a permit therefor is first secured from the Township Engineer or the Township Planning Board as hereinafter provided. A permit shall not be required for the removal, fill or moving of less than 100 cubic yards of soil.

B. Any person seeking a permit pursuant to this chapter shall be required to provide proof of compliance with the statutory A-901 licensing requirements.

§ 460-4 Exceptions and exemptions.

A. The provisions of this chapter shall not apply to excavations for building foundations, septic tanks or sanitary installations, provided that no excavation or construction of any kind shall take place until a site plan or permit has been approved by the Construction Official and/or Department of Health as required by law.

B. Nothing in this chapter shall be construed to affect or apply to any person engaged in the moving of soil in and upon lands enrolled in the Soil Conservation Program of the Hudson, Essex and Passaic Soil Conservation District of the United States, Department of Agriculture National Resource Conservation Service, or for which lands an approved farm plan has been established by said agency. All soil moving and removal operations and fill operations in and upon such lands shall be performed in accordance with said approved plan and provided further that a copy of said approved plan is placed on file with the Township Engineer prior to any soil moving, removal operations or fill operations.

C. A separate soil permit under this chapter shall not be required for individual lot development plans approved pursuant to § 110-4, Site plan review for detached single-family dwellings, or subdivisions and/or site plans approved pursuant to Chapter 470, Subdivision of Land and Site Plan Review, of the Land Development Ordinance:

(1) By the Planning Board;

(2) By the Board of Adjustment;

(3) By the Township Engineer; or

(4) Administrative review and approval.

D. Nothing in this chapter shall be construed to affect or apply to any person engaged in a state-mandated cleanup plan; provided that all soil moving, removal operations and fill operations are performed in accordance with said cleanup plan and provided further that notice of the state-mandated cleanup plan is placed on file with the Township Engineer prior to any soil moving, removal operations or fill operations.

E. The provisions of this chapter shall not apply to the storage of sand, soil, stone, topsoil, mulch or other similar materials on lawfully existing landscaping and contractor yards provided that the outdoor storage of materials on said property has previously been established and does not require site plan approval pursuant to this chapter.

F. This chapter does not regulate the movement and placement of soil fill directly related to agricultural uses on farm properties within the Township and does not supersede any rights granted under the Right to Farm Act.

§ 460-5 Application for permit.

A. Application for a minor soil removal or soil fill permit shall be filed with the Township Engineer, who shall issue the permit based upon substantial compliance with the provisions of §§ 460-10 and 460-12 of this chapter; provided, however, that the Township Engineer shall have the authority to deny a permit if he determines that the removal or fill would be detrimental to the health, welfare or safety of the general public. The denial shall be in writing setting forth reasons for same. Any party denied a permit shall have the right to an appeal as set forth in N.J.S.A. 40:55D-70(a).

B. Application for a major soil removal or soil fill permit shall be filed with the Township Planning Board and shall be accompanied by a fee prescribed in § 460-8. Five copies of the application shall be submitted on forms prescribed by the Township Planning Board and supplied by the Secretary to the Board. The application shall set forth the following:

(1) Name and address of the applicant.

(2) Name and address of the owner, if other than the applicant.

(3) The description and location of the land in question, including the tax map block and lot numbers.

(4) The purpose or reason for moving, filling, or removal of the soil.

(5) The nature and quantity, in cubic yards, of soil to be removed or filled.

(6) The place to which the soil is to be removed or placed.

(7) The proposed date of completion of the soil removal or fill.

(8) The name and address of the person having direct charge or supervision over the soil removal, filling operation movement operation.

(9) Supporting documentation as required to adequately address and comply with the purpose and the provisions of this chapter.

(10) An approved soil conservation permit.

(11) Environmental and community impact statement in conformance with § 470-17, Environmental and community impact statement, of the Land Development Ordinance.

(12) Proof of compliance with statutory A-901 licensing requirements.

C. The application for a permit pursuant to either Subsection A or B above shall be accompanied by the Acceptable Soil/Fill Material Certification Form found at § 460-26, to be completed as follows:

(1) By the soil/fill material supplier:

(a) Part 1: The date the form is completed, the soil/fill supplier’s name, title, company name, address, telephone number, and email contact information.

(b) Part 2:

[1] The site name(s), address(es), and block/lot of the property(ies) supplying the soil/fill material.

[2] Brief history of the source property (ies), including current or past use of the property.

[3] Answers to questions 1 through 3.

[4] A date soil/fill material was subject to analytical testing.

[5] Analytical data shall include documentation consistent with the Township’s requirements.

[6] Certification (signature) from the soil/fill supplier that the soil/fill being imported meets the definition of acceptable soil/fill.

(2) By the person receiving or placing acceptable soil/fill material:

(a) Part 3:

[1] The date the form is completed, the name, title, company name, address, telephone number, and email contact information.

[2] The address of the location where soil/fill placement will be.

[3] Answers to questions 1 through 5.

[4] Certification (signature) from the person receiving or placing the soil/fill material.

§ 460-6 Referral.

Upon receipt of an application for a major soil removal or soil fill permit, the Planning Board Secretary shall forthwith send a copy of same to the Planning Director, Construction Official, Township Engineer, Township Health Officer and Environmental Commission who shall review the application, and they shall submit their reports and recommendations, and their reasons, to the Township Planning Board within 30 days of receipt of the application. Failure to file such a report within the required time period shall be deemed an approval of the application by such department, officials and commissions.

§ 460-7 Action by Planning Board; notice of hearing on major soil removal or fill applications.

A. The Township Planning Board shall grant or deny the application within 45 days after receipt of the reports and recommendations of the Planning Director, Construction Official, Township Engineer, Township Health Officer, and Environmental Commission. On an application for a major soil removal or soil fill permit, the Planning Board shall schedule a public hearing and shall notify the applicant of the date of such hearing. The applicant shall notify in writing all property owners within 200 feet of the extreme limits of the property, as their names appear on the Township tax records, at least 10 days prior to the date of the hearing in the application. The notice shall be given in person or by registered mail and shall state the reason for the hearing; the time and place of the hearing as fixed by the Township Planning Board; a brief description of the property; and that a copy of the application and map has been filed with the Township Clerk for public inspection. The applicant shall also cause notice of the hearing to be published in the official newspaper of the Township, at least 10 days prior to the date of the hearing.

B. At the hearing, the applicant shall present to the Township Planning Board 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 in Subsection A of this section.

(2) Proof of publication of the newspaper notice required in Subsection A of this section.

§ 460-8 Permit fees; inspections.

A. The fees for a minor or major soil removal or soil fill permit are set forth in Chapter 414, Fees, Land Development.

B. Inspections. On an annual basis or upon request, the Township Engineer may require the submission of a topographic map and quantity estimates prepared by a professional engineer or land surveyor, or any other method approved by the Township Engineer, on behalf of the application and at the applicant's expense, in order to determine the quantity of soil removed, filled or moved. For a major soil permit should the original quantity estimates be exceeded at any time, the fee shall be increased accordingly and the matter will be reviewed by the Township Planning Board, which shall have the discretion to award credit for any fee paid as to any increase noted due to exceeding the original quantity estimate.

§ 460-9 Supporting documentation for major soil removal or fill permits.

A. In addition to the application forms submitted to the Township Planning Board, the applicant shall submit reports and maps as required which will address the following points:

(1) Procedures and measures that will be taken by the applicant to ensure that noise and dust problems will be held to a minimum.

(2) Procedures and measures that will be taken by the applicant to assure lateral support of remaining soil and the prevention of erosion, floods and siltation of watercourses during the active life of the operation and after the soil removal operation ceases.

(3) Procedures and measures that will be taken by the applicant that will protect adjoining and downstream properties from the effects of the soil removal or fill operation.

(4) The routes over which the material will be transported, the method of traffic control and the ability of the road network to handle the amount and type of traffic generated by the soil removal or fill operation.

(5) Procedures and measures that will be taken by the applicant to ensure that the land in question can be used as intended by the Land Development Ordinance of the Township.

(6) The type, capacity and description of each piece of equipment to be used during the soil removal, fill, and movement operation.

B. The application for a major soil removal or soil fill permit shall be accompanied by a topographical map of the lands on question. Said map shall be prepared and certified by a professional engineer or land surveyor. Same shall be prepared at a scale of not smaller than 50 feet to the inch and shall show the following:

(1) The present grades on a 100-foot grid layout, using two-foot contour intervals.

(2) The proposed finished grades using ten-foot contour intervals.

(3) The quantity, in cubic yards, of soil to be moved.

(4) The grades of all streets and lots within 100 feet of the property in question.

(5) Proposed sloped and lateral supports.

(6) Present and proposed surface water drainage.

(7) A plan for the restoration of the site when soil removal or fill operations cease.

(8) Key map.

(9) All existing structures, all existing roads and drainage within 200 feet of the property.

(10) Location of all property lines.

(11) Location of any wetlands, streams, or other environmentally sensitive areas on the property.

(12) Location of any topsoil storage areas.

§ 460-10 Standards governing the issuance of permits.

In considering and reviewing applications for soil removal or fill permits, the Township Planning Board and Township Engineer shall be guided by the general purpose of municipal planning and shall take into consideration the following factors:

A. Soil erosion by water, sand and wind.

B. Surface water drainage (no sharp declivities to be formed) and water pollution.

C. Soil fertility.

D. Public health and safety.

E. Lateral support slopes and grades of abutting streets and land.

F. Land values and uses.

G. Contours, both existing and proposed.

H. Existing contours and topographic character of the land prior to the placement of any soil and proposed contours which will result subsequent to the placement of soil in accordance with the soil fill application.

I. Whether the proposed placement of soil is necessary and incidental to the development of the property for its intended use or whether the proposed placement of fill constitutes primarily a commercial activity.

J. Such other factors as may bear upon or relate to the coordinated, adjusted and harmonious physical development of the Township.

§ 460-11 Bond requirements.

Prior to the issuance of a major soil removal or soil fill permit, the applicant shall have posted with the Township a performance bond conditioned upon full compliance with all the terms and conditions of approval, including the provisions of this chapter. The amount of such bond shall be fixed by the Township Planning Board and shall be submitted in the form required by Chapter 470, Article IX, Off-Tract Improvements, Guarantees and Inspections, of the Land Development Ordinance. The performance bond shall not be canceled or released until all conditions set forth in the permit have been met. The bond is to assure compliance with this chapter, restoration work, minor road repair and street cleanup. Neither the bond nor permit shall be transferable to another party without the prior approval of the Township Planning Board.

§ 460-12 Soil removal, fill and movement restrictions.

A. The soil removal, fill operations, and movement operations shall be so conducted that there shall be no sharp declivities, pits or depressions and in such a manner that the area shall be properly leveled off, cleared of debris and graded to conform to the finished contour lines and grades as required and shown on the approved plan.

B. The developer or excavator shall not remove or move from the premises or take away the top layer of arable soil for a depth of four inches, but such top layer of soil shall be set aside on the premises and shall be respread over the premises when the rest of the soil has been removed in conformity with the contour lines approved by the Township Planning Board.

C. The grading of slopes shall not exceed the maximum allowable grades permitted by the most current revised Standards for Soil Erosion and Sediment Control in New Jersey. Benching, as may be required by the Township Engineer, shall be provided for by the applicant. Grading of slopes in quarry operations shall be as determined by the Township Engineer.

D. On weekdays, work shall commence no sooner than 7:00 a.m. and shall end no later than 7:00 p.m. except that on weekends, work shall commence no sooner than 8:00 a.m. and shall end not later than 7:00 p.m.

E. A 100-foot buffer shall be retained from each property line wherein the soil operation is adjacent to developed residential uses. A fifty-foot buffer shall be retained from each property line in all other areas. When compliance with buffer requirements is impracticable because of the physical configuration of the property of preexisting uses, the distance requirements may be waived upon the recommendation of the Township Engineer if:

(1) Natural screening is to be preserved by the applicant.

(2) Additional screening of fencing as may be required by the Township Engineer shall be provided by the applicant.

F. Dust is to be controlled by water or calcium chloride or as may be directed by the Township Engineer.

G. Noise shall be controlled as per Chapter 226, Noise, of the Township Code.

H. Sedimentation ponds shall be installed and maintained as may be required by the Township Engineer.

I. Restoration will include replacing topsoil, seeding, fertilizing, mulch and crown vetch on slopes as may be directed by the Township Engineer or Township Planning Board.

(1) The applicant shall file an as-built plan and restoration plan with the Township Engineer or Township Planning Board upon completion of soil removal, fill, and movement operations containing and complying with all requirements of this chapter. Upon completion of any operation delineated on the approved plan, said area shall be properly leveled off, cleared of debris, and graded to conform to the contours and grades as approved by the Township Engineer or Township Planning Board.

(2) The pit shall be left in a condition without holes and completely stabilized.

(3) No trash, junk or debris may be stored in any area, and no safety hazards will be permitted, either during or after completion of operations.

J. Soil removal, fill operations and movement operations shall be allowed only in zoning districts where such an operation is a permitted use or on a site that has been the subject of a use variance approval.

K. All new site plans and all new soil removal, fill operations or movement operations must show and install soil erosion controls, including:

(1) Stone blanket for wheel cleaning to be 30 feet in length and consist of 2 1/2 inches stone and be 12 inches in depth.

(2) Stockpile and land disturbance controls shall be installed and shown on all new site plans and consist of fabric fence or hay bales staked in place.

(3) For new site plans, soil erosion controls shall be in place prior to commencement of any soil removal, fill, or movement operations.

(4) With respect to open bed inspections, stone beds must be in place prior to any excavation of the site.

(5) All disturbed lands must be stabilized prior to a certificate of occupancy for new site plans or 30 days, whichever occurs first, unless an extension is approved in writing by the Township Engineer.

§ 460-13 Enforcing officer; duty to make inspections.

The Township Engineer is hereby designated as the officer whose duty it shall be to enforce the provisions of this chapter. He shall, from time to time, upon his own initiative, or whenever directed by the Township Administrator, inspect the premises for which permits have been granted to ensure compliance with the terms of the permit and of this chapter. The Engineer shall have the right to enter upon any lands for the purpose of examination and inspection of the operation without advance notice.

§ 460-14 Enforcement.

A. Enforcement authority and procedure.

(1) The Township Engineer, or other official designated by the Township Council, shall have the authority to enforce the provisions of this chapter and to issue summonses to any person importing soil without a permit.

(2) The Township Engineer, or other official designated by the Township Council, shall have the authority to enforce the provisions of this chapter with respect to persons importing soil with a permit. The Township Engineer, or other designated official, shall, from time to time, upon their own initiative, and whenever directed by the Township, inspect the premises for which permits have been granted to ensure compliance with the terms of the permit and this chapter. The Township Engineer, or other designated official, shall have the right to enter upon any lands for the purpose of examination and inspection of the operation without advance notice.

(3) After notice and an opportunity to be heard before the Township Engineer, or other designated official, the permit of any person may be revoked or suspended for such period as may be determined for any violation of the terms hereof or the terms and conditions of any permit granted hereunder. In addition to the revocation provided for herein, any person who violates this chapter or any director or officer of a corporation who participates in a violation of this chapter shall, upon conviction thereof, be subject to a minimum fine of $2,000, or imprisonment for a period not to exceed 90 days, or both. Each and every day that such violation continues or exists shall be considered a separate and specific violation of these provisions and not as a continuing offense.

B. In addition to the penalties set forth above, the Township shall have the right, but not the obligation, to pursue injunctive relief in the Superior Court of New Jersey, Passaic County, including but not limited to requiring the removal of any soil imported without a permit, testing to ensure no presence of contaminated soil, and site restoration.

§ 460-15 Use of streets for soil transportation.

In the removal of soil or fill operation, only such streets of the Township shall be used for transportation as may be designated for that purpose by the Township Planning Board upon the recommendation of the Township Engineer. The applicant shall cause such streets to be kept free from dirt and debris resulting from such soil removal or fill operation.

§ 460-16 Conformance with Land Development Ordinance; conflicts.

Nothing contained herein shall be deemed to modify or repeal any of the provisions of the Land Development Ordinance of the Township of West Milford. In the event of any inconsistency between the provisions of this chapter and the provisions of Chapter 500, Zoning, of the Land Development Ordinance, such inconsistency shall be resolved in favor of the enforcement of Chapter 500, Zoning.

§ 460-17 Violations and penalties.

A. Any person, firm or corporation violating any of the provisions of this chapter shall be subject to a fine of not less than $100, and not exceeding the maximum penalty as provided in Chapter 1, Article III, General Penalty, as may be amended from time to time, in the discretion of the judge before whom such conviction shall be had. Each and every violation and nonconformance of this chapter, or each day that any provision of this chapter shall have been violated, shall be construed as a separate and distinct violation thereof.

B. In addition to the penalty set forth herein, the Township may institute an action to enjoin or take any other appropriate action or proceeding in order to enforce the provisions of this chapter.

§ 460-18 Other permits.

Nothing contained in this chapter shall be construed to affect the owner's application for a soil conservation service permit or a water policy permit (if necessary) or to affect any other state or federal regulations or permits as required.

§ 460-19 Preexisting soil removal and movement operations.

A. Soil removal, fill and movement operations are of such public concern that its control is deemed necessary for the protection of the environment, public health, welfare and safety. The Township Council deems it necessary that all existing soil removal, fill and movement operations within the Township of West Milford must comply with the provisions of this chapter.

B. Requirements of § 460-9 for supporting documentation of applications for a soil removal or fill permit should be waived by the Township Planning Board for the review of existing soil removal, fill and movement operations.

C. The Township Planning Board, in the interest of the protection of the health, safety or welfare of the public, may require that existing soil removal, fill and movement operations comply with all of the provisions of this chapter.

§ 460-20 Regulation of operation.

No soil shall be placed nor shall any operation be conducted so as to violate any of the regulations contained in this chapter after a permit is granted.

§ 460-21 Deposit of soil on adjoining property or public roads.

Soil fill shall not be deposited or in any way thrown or placed upon adjoining property or public roads. Any soil or material resulting from any such operation accumulating on any adjoining property or public road shall be removed there from immediately upon notice to the permittee of such accumulation.

§ 460-22 Compliance with other standards and terms of permit.

All operations shall be conducted in strict accordance with any state law, other ordinances of the Township, and the terms and conditions of any permit granted for such operations. Prior to the issuance of any permit, the applicant shall provide a copy of an approval for any project that disturbs more than 5,000 square feet or exemption by the Hudson-Essex-Passaic Soil Conservation District.

§ 460-23 Nuisances and unsafe conditions.

The operation shall be so conducted as to not constitute a nuisance, and in no event shall said operation create any hazardous or unsafe condition with regard to any person or persons. Natural screening is to be preserved by the applicant.

§ 460-24 Storage limitations.

The material stored shall not exceed a height of 20 feet, and the maximum storage slope shall be 45°.

§ 460-25 Expiration.

A. Upon issuance of an approved minor soil permit, the permit shall expire six months after the start of work or one year after the approval, whichever is later.

B. All major soil permits shall expire three years after the date of approval. The applicant shall submit to the Planning Board a status report annually on the anniversary date of the approval. Determinations and approvals made by the Planning Board may supersede the expiration date noted previously.

§ 460-26 Acceptable soil/fill material certification form.

Instructions: The supplier shall make the acceptability determination at the site of soil/fill origin and will complete Parts 1 and 2 of this form. Part 3 will be completed by the person receiving the material to be used as acceptable soil/fill material.[1]

[1] Editor's Note: The form is included as an attachment to this chapter.