[Adopted STM 11-19-2013 by Art. 13[1]]
[1]
Editor’s Note: This bylaw superseded former Art. III,
Procedure for Removal of Earth Materials, adopted STM 10-26-2004 by
Art. 21.
This article is adopted under the authority contained in Massachusetts
General Laws, Chapter 40, Section 21, Paragraph 17.
The purpose of this article and associated regulations is to
regulate earth removal operations and land filling operations for
the protection of human health, public safety, welfare, and the Town's
natural resources in the Town of Westminster. Further, the provisions
of this article are intended to protect abutting property owners from
drainage problems that could potentially be created by poorly managed
earth removal and/or filling operations.
The owners of property within 300 feet of the perimeter of
the subject property.
The owner of land from which earth will be removed or fill
to be placed, or the person of lawful standing in the stead of such
owner. Any person, company, or agent standing instead of the actual
property owner must have the owner's written permission to do so.
The Planning Board of the Town of Westminster, which shall
act as the permit granting authority (PGA).
This term shall include soil, loam, sand, gravel, clay, peat,
rock, or other earth material in solid form.
Any commercial mining, stripping, quarrying, filling, digging
or blasting of earth originating from the Town of Westminster and
its transportation into or out of the Town of Westminster.
The process by which the ground surface is worn by forces
such as wind, running water, ice, abrasion, gravity, transportation
or by artificial means.
The import and use of earth materials on any parcel of land
within the Town of Westminster.
Loose fragments of rock or coarse aggregate resulting from
natural disintegration and abrasion of rock or processing of weakly
bound conglomerate.
A soil consisting of a friable mixture of varying proportions
of clay, sand, silt, and organic matter.
The permit granting authority, which will be the Planning
Board for the purposes of this article.
The sorting or separation of earth materials into distinct
categories based on particle size or type usually through the use
of a screening process, not including stone crushing.
Any geologic, man-made, recycled or processed material including
in its entirety or as a proportion containing clay, rock, sand, gravel,
peat and sediment. Material meeting the federal and/or state definition
of solid or hazardous waste or as toxic, infectious, radioactive,
corrosive, or reactive material is specifically excluded.
Loose sedimentary material with rock particles usually less
than 1/16 mm or less in diameter based on the Wentworth scale of measurement.
A distinct portion of one to three contiguous lots, under
the same or different ownerships, on which an earth removal and/or
fill operation is conducted, or is proposed to be conducted, under
the permit.
An area that is more or less steep, as measured by the vertical
rise over the horizontal distance, expressed as a percentage or ratio.
For example, a rise of one foot over three horizontal feet is a slope
of 33% and is expressed as a ratio of 3:1 slope.
The mechanical operation which creates smaller-sized stones
or stone products from larger-sized stones, boulders or particles
typically using a crushing plant or similar machinery.
[Amended ATM 6-20-2020 by Art. 33]
A.
All earth removal and earth filling operations in the Town shall
provide the following information, in writing, to the Building Inspector
within six months of the effective date of this bylaw:
(1)
The map and parcel number of the subject property;
(2)
An estimate of the amount of material left to be removed (if earth
removal);
(3)
An estimate of the amount of fill material remaining to be placed
(if fill);
(4)
An estimate of the anticipated annual volume of activity;
(5)
A description of completed and planned reclamation of the property;
(6)
The date the operation began; and
(7)
The anticipated date of completion or cessation of the operations.
B.
C.
An earth removal or filling operation that does not exceed any of
the above thresholds shall not require a permit, but is subject to
the following requirements (unless otherwise agreed to, in writing,
by the abutting property owner):
[Amended ATM 6-20-2020 by Art. 33]
The following earth removal or fill operations are exempted
from the requirement to obtain a permit under this bylaw, provided
that i) the earth removal and/or fill operation does not exceed a
total area of five acres, and ii) the operation is not conducted,
maintained, and/or left in a condition so as to alter the natural
drainage flow beyond the property; or to cause dust, silt, soil, or
other materials to be deposited on adjacent properties; or to otherwise
cause nuisances, hazards, or other objectionable conditions detrimental
to health, safety, or property values in adjacent areas.
A.
Earth removal or the placement of fill associated with the installation
of septic systems, which shall be governed by the Commonwealth of
Massachusetts Environmental Code (Title 5, 310 CMR 15.00).
B.
Earth removal or the placement of fill associated with the installation
of foundations for new buildings and/or building additions, which
shall be governed by MGL c. 143 and the Commonwealth of Massachusetts
Building Code (780 CMR).
C.
Earth removal or the placement of fill proposed for land falling within the Town's Floodplain Protection District, which shall be governed by §§ 205-9 and 205-46 of the Westminster Zoning Bylaw and require a special permit from the Zoning Board of Appeals.
D.
Earth removal or the placement of fill proposed for land falling within the Town's Wetland Protection District and associated buffer zones, which shall be governed by the Wetland chapter within the Town's General Bylaws (Chapter 202) which is administered by the Conservation Commission, and the Massachusetts Wetlands Protection Act.[1]
[1]
Editor's Note: See MGL c. 131, § 40 et seq.
E.
Earth removal or the placement of fill that involves less than 1,000
cubic yards on a single lot.
F.
Earth removal or the placement of fill, where the operation occurs
entirely within an individual parcel and where a Town-accepted public
way is not used for the transportation of the material.
G.
Earth removal or the placement of fill within the right-of-way for a new subdivision road that has been approved by the Planning Board or Zoning Board where there is already a bond in place with the Town to ensure performance. For earth removal outside of a new subdivision road right-of-way, a permit will be required if the amount of earth removed exceeds the thresholds specified in § 97-7.
H.
The PGA shall, upon petition by an abutter or by any Town official or Town board, review an operation that would be exempt from the permit requirement pursuant to this § 97-8, and may determine that, because of the nature and scope of the earth removal or fill operation, a permit is nonetheless required.
A.
Permits for earth removal and/or fill operations shall be granted by the PGA only upon its written determination that the proposed use shall not cause substantial detriment to the neighborhood, or the Town, taking into account the characteristics of the site and the proposal in relation to the site and surrounding environment. In addition to any specific factors that may be set forth elsewhere in this article and its associated regulations adopted pursuant to § 97-11, such determination shall include consideration of each of the following:
(1)
Social, economic, or community needs which are served by the proposal;
(2)
Traffic flow and safety, including loading and unloading;
(3)
Neighborhood character;
(4)
Impacts on the natural environment; and
(5)
Potential fiscal impact, including impact on Town services, tax base
and property values.
B.
Determination for each of the five criteria shall be set forth in
the permit decision as findings of fact.
A.
No permit shall be issued for the removal of earth or the placement
of fill in any location if such an operation:
(1)
Will endanger the public safety, public health or constitute a nuisance.
(2)
Will produce noise, dust, or other noxious effects observable at
the lot lines of the property in amounts objectionable or detrimental
to the normal use of adjacent properties.
(3)
Will result in the transportation of materials in such manner as
to cause traffic congestion, dust, spillage, noise, or other nuisances
or hazards, particularly on residential streets.
(4)
Will result in the transportation over ways which will be unduly
injured thereby.
(5)
Will result in a change of topography and cover which will be disadvantageous
to the most appropriate final use of the land or to the use of lands
adjacent to the site.
(6)
Will cause irreparable harm to or loss of important wildlife, wildlife
habitat or rare plant species indigenous to the area.
(7)
Will result in stormwater damaging abutting properties.
B.
Applicants are encouraged to submit a written statement regarding
how each of the previous items will be addressed and/or mitigated.
The PGA may adopt and periodically amend rules and regulations
for the implementation of this article, by majority vote. Such rules
and regulations may set forth performance standards for earth removal
and fill operations, impose filing and consultant fees, define additional
terms not inconsistent with the article, 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 article.
A.
Any person wishing to obtain a permit to remove from or place earth
material on a property in the Town, or to use any public way within
the Town for transporting such material, shall file a completed application
for a permit together with any required supporting data and maps with
the PGA and the filing fee, as established in the regulations of the
PGA.
B.
Any permit issued is nontransferable and shall automatically expire
upon completion of the earth removal or fill project for which it
was issued or at such time as may be specified in said permit. In
no case shall a permit be issued initially for a period longer than
three years. A permit may be renewed for up to two years or lesser
time as determined by the PGA after evidence is presented that all
conditions of the expiring permit have been complied with and the
work has been performed in good faith. There is no limit on the number
of permit renewals an applicant can apply for. A public hearing may
be required by the PGA, at its discretion, for renewal of permits.
Once a complete permit application is filed with the PGA, the
PGA shall set a date for a public hearing and so notify the applicant.
Notice of the hearing shall be published by the PGA, at the applicant's
expense, 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 said hearing. Notice of the hearing shall be given to all owners
of real estate abutting upon the land specified in the permit application
or lying within 300 feet of the subject parcel, all as appearing on
the most recent tax list. The PGA will arrange for the publication
and transmission of the notice of the hearing to the abutters, and
the costs will be billed to the applicant. Final approval for the
permit shall not be made until all hearing fees have been paid in
full.
A.
An existing operation that had been issued a permit by the Select Board under the Earth Removal Bylaw (§§ 97-4 through 97-11) or the Earth Filling Bylaw (§ 81-6) that were in effect prior to the effective date of this article may continue to operate according to the terms of such permit, which shall hereafter be enforceable by the PGA pursuant to this article.
[Amended 5-1-2021 ATM by Art. 17]
B.
An existing earth removal and/or fill operation that was not required to obtain a permit under the prior Earth Removal Bylaw, but which exceeds the thresholds specified in § 97-7B of this article, may continue to operate without being required to apply for or obtain a permit for a period of three years from the effective date of this article, provided that the owner or operator of said operation submits to the Building Inspector the information required in § 97-7A within six months of the effective date of this article.
C.
The right of an existing operation to operate pursuant to § 97-14A under a permit previously issued by the Select Board, or to operate without a permit pursuant to § 97-14B, shall expire if the operation is discontinued. An operation shall be deemed to have been discontinued if no earth removal or fill activity occurs at the site for a period of 12 consecutive months.
[Amended 5-1-2021 ATM by Art. 17]
A.
The PGA or its authorized agent shall enforce this article, its regulations,
and the requirements and conditions of permits issued thereunder and
may pursue civil and criminal remedies for violations of the same.
B.
The Building Inspector is authorized to conduct inspections on behalf
of the PGA. To the extent permitted by law, or if authorized by the
owner, operator, or other person in control of the site, the Building
Inspector or other agent of the PGA may enter on the site to conduct
inspections.
C.
The Building Inspector or other authorized agent of the PGA may issue
such orders as are deemed necessary to stop violations and ensure
compliance with this article, its regulations, and permits, including
an order to cease and desist operations. Such orders may be issued
by certified mail, return receipt requested, or by delivery, to the
property owner, permit holder, or person responsible for operations
at the site.
D.
The PGA may seek injunctive relief to restrain violations or to compel
abatement or remediation of violations.
E.
Any person who violates any provision of this article or regulations,
permits, and orders issued thereunder may be punished by a fine of
not more than $300 per offense. Each day that such violation occurs
or continues shall constitute a separate offense.
F.
As an alternative to a criminal fine, the Town may utilize the noncriminal
disposition procedures of MGL c. 40, § 21D, in which case
the Building Inspector shall be the enforcing person. The penalty
for the first offense shall be $100. The penalty for the second offense
shall be $200. The penalty for the third and subsequent offenses shall
be $300.
G.
If the violator holds a permit issued under this article, the PGA
may revoke the permit after a public hearing, at which point all operations
shall cease until such time as the necessary measures are taken to
assure compliance with this article and a new permit is issued.
The provisions of this article are severable, and the invalidity
of any section, subdivision, paragraph, or other part of this article
shall not affect the validity or effectiveness of the remainder of
the article.
