[HISTORY: Adopted by the Annual Town Meeting of the Town of Lexington 4-3-1967 by Art. 83 as Art. XXIX of the 1976 Bylaws; amended in its entirety 4-27-1987 ATM by Art. 40. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Excavations — See Ch. 52.
Wetland protection — See Ch. 130.
Zoning — See Ch. 135.
The removal from or placement on a premises during any three years of more than 25 cubic yards of soil, loam, sand, gravel, topsoil, borrow, rock, sod, peat, humus or clay from or onto any land in the Town not in public use is prohibited unless authorized by a permit from the Board of Appeals, organized under the Zoning By-Law, except under the following circumstances:
A. 
When such removal or placement is incidental to and in connection with the erection, on the land involved, of a building for which a permit has been issued by the Building Commissioner of the town.
[Amended 4-9-2001 ATM by Art. 29]
B. 
When such removal or placement is required for construction of a street that has been approved by the Planning Board over the location involved.
C. 
When such removal or placement is in accordance with special permission from the Board of Appeals issued under the Zoning By-Law as now in effect or as hereafter amended.
D. 
When such removal or placement is in accordance with the terms of an order of conditions or determination of applicability issued by the Conservation Commission pursuant to M.G.L. Ch. 131, § 40, or Chapter 130, Wetland Protection, of this Code.
E. 
When placement is undertaken in connection with an agricultural or commercial enterprise, subject to the requirements of § 43-9.
F. 
When placement is for landscaping or gardening purposes and the material to be placed consists of peat moss, tree bark, wood chips, or other vegetative mulch, loam, or crushed stone or gravel in a walkway, driveway, or parking area.
Application for a permit shall be filed with the Board of Appeals by the record owner of the land or the person performing the work. The application shall include a plan showing property boundaries, names and addresses of all abutters, including those across any street or way, the location of the proposed work, and such other information as the Board of Appeals deems necessary for its review. The application shall be accompanied by a filing fee determined in accordance with a fee schedule adopted by the Board of Appeals payable to the Town of Lexington.
The Board of Appeals shall fix a reasonable time for a public hearing on the application and shall give public notice thereof, at the expense of the applicant, by publishing notice of the time, place and purpose of the hearing in a newspaper of general circulation in the Town at least 14 days before said hearing, and by mailing a copy of said notice to the applicant and to the owners of all property deemed by said Board to be affected thereby, as they appear on the most recent local tax list, at least seven days before said hearing.
Notwithstanding the provisions of §§ 43-1 through 43-3, the Board of Appeals may, following public hearing duly advertised, issue regulations permitting specific classes of fill and removal activity. Such regulations may require review and approval of a proposal by the Building Commissioner prior to commencement of the activity.
In granting a permit, the Board of Appeals shall impose limitations as to the time and the extent of the permitted removal or placement and such other appropriate conditions, limitations and safeguards as the Board of Appeals deems necessary for the protection of the neighborhood and of the public health, safety, convenience and welfare. These considerations may include, but are not limited to, the location of the work, the general character of the neighborhood, the general safety of the neighborhood, and effects of the proposed work on water runoff and water quality.
The Board of Appeals may require a surety bond, cash or other adequate security to insure compliance with the terms, conditions and limitations of the permit.
The Board of Appeals shall require, as a condition for issuance of a permit, a statement certifying the source and content of fill material if the permit is issued for placement of fill. The Board of Appeals may also, at its discretion, require fill material to be analyzed as to content in order to detect the presence and quantity of any materials that are hazardous or otherwise harmful. Such analysis may be ordered before or during work and shall be conducted by a competent authority named by the Board of Appeals and at the expense of the applicant.
Forthwith following expiration or withdrawal of a permit, or upon voluntary cessation of work, all land shall be graded, leaving no slopes in excess of one foot vertical to two feet horizontal. Surface drainage shall be provided for, boulders and stumps shall be disposed of, and the entire area shall be covered with not less than four inches of topsoil and planted with cover vegetation unless otherwise provided in the permit.
A permit for placement of material listed in § 43-1 shall not be required in connection with, and on the premises of, agricultural or commercial enterprises that conform to or are otherwise allowed under the Zoning By-Law now in effect or as hereafter amended, subject to the following conditions:
A. 
Agricultural enterprises need not obtain a permit if the material consists of compost, peat, manure, loam or other vegetative or earthen matter necessary for or directly related to planting, cultivation or harvesting of vegetative products or the raising or care of animals, but specifically excepting material used for landfill purposes.
B. 
Commercial enterprises need not obtain a permit if the material will be stockpiled on the commercial premises and its use is necessary to a regular activity of the enterprise.
C. 
Enterprises that qualify for exemption under Subsection A or B of this section shall notify the Building Commissioner in writing that they use fill material. Notification shall be made within 60 days of the effective date of this By-Law for existing activity or at least 30 days prior to initial placement of material in the case of enterprises not previously registered. Such notification shall include the names, addresses and telephone numbers of the business and its principals and the location of the premises where the material will be placed.
The Board of Appeals may promulgate after due notice and public hearing rules and regulations to effectuate the purposes of this By-Law. However, failure by the Board to promulgate 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 By-Law.
[Added 3-23-1992 ATM by Art. 26]
This By-Law shall be enforced by the Building Commissioner. The Board of Appeals shall forward a copy of any permit granted under this By-Law to the Building Commissioner and the Conservation Commission shall forward a copy of any order of conditions authorizing or requiring removal or placement of fill on land to the Building Commissioner.
The invalidity of any section or provision of this By-Law shall not invalidate any other section or provision thereof.