[HISTORY: Adopted by the Town Board of the Town of Somerset 5-10-1988 by L.L. No.
1-1988. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 205.
A.
This chapter is adopted to protect the health, safety and welfare
of residents of the Town of Somerset and is intended to mitigate adverse
impacts which may be caused by excavation of material within the Town
of Somerset.
B.
This chapter shall regulate the excavation of materials, as defined
herein, within the territory of the Town of Somerset, outside of the
Village of Barker, and is intended to control the location of such
excavation, together with the operation of such excavation, where
permitted herein.
As used in this chapter, the following terms shall have the
meanings indicated:
That person making application for a permit and who is responsible
for fulfilling the requirements for the restoration plan and all rules
and regulations promulgated hereunder. If the "applicant" is other
than the property owner, written proof must be presented showing authorization
from the property owner to the "applicant."
All on-site operations involved in the treatment, processing
or further fabrication of soil, sand, gravel or natural deposits,
including washing, sedimentation ponds, grading, sorting, grinding,
concrete batching plants, asphalt mixing plants and aggregate dryers.
Trees, hills, fences, berms or other natural or artificial
features which are located so as to conceal or separate the excavation
site and related activities from other land uses and to reduce the
negative effects on these land uses of noise, glare, dust, visual
ugliness and other factors associated with the excavation site and
related activities.
A cavity, hole, mine, pit or quarry on land formed by digging,
for the purpose of extracting clay, stone, gravel, sand, shale or
other natural minerals or the topsoil therefrom.
An area of land of a minimum of 10 acres which is used for
gain in the raising of agricultural products, including crops, livestock,
poultry or dairy products, and such use properly zoned.
Any pit or underground workings from which any mineral is
produced.
Aggregate, clay, gravel, sand, shale, stone or any other
solid material of commercial value found in or on the earth.
Any owner, lessee or other person who operates, controls
or supervises the operation.
That person having title to the tract of land.
Any individual, public or private corporation, political
subdivision, government agency, partnership, association, trust, estate
or any other legal entity.
The Planning Board of the Town of Somerset.
The reparation to an environmentally acceptable natural state
of an area which has undergone physical change due to excavation and
related activities as reviewed by the Town Engineer and approved by
the Planning Board of the Town of Somerset.
Surface earth, including the organic layer in which most
plants have their roots.
This chapter shall apply to all territory within the Town of
Somerset, outside of the Village of Barker, whether or not said excavation
is governed by any other state or federal rule or regulation. Where
more than one law applies, the more stringent shall control.
The following operations and uses are hereby excepted from the
application of this chapter:
A.
Excavations or removal of stone, gravel, clay, sand, shale, subsoil
or topsoil incident to highway, sidewalk or driveway construction
to the extent that said materials are removed solely from the bed
of said highway, sidewalk or driveway.
B.
The moving of stone, gravel, clay, sand, shale, subsoil or topsoil
from one part of a premises to another part of the same premises incident
to the construction of a building or other improvement of land or
incident to landscaping.
C.
Removal of excess stone, gravel, clay, sand, shale, subsoil or topsoil
from the area of a subdivision granted final approval by the Planning
Board of the Town of Somerset, provided that any such removal is in
accordance with plans and specifications approved by said Planning
Board.
D.
Construction of sewage disposal systems.
E.
Any noncommercial excavation operation conducted by the Town of Somerset,
including the cleaning of ditches by the Highway Department and/or
official of the Highway Drainage District or their authorized agent.
F.
Construction of drainage facilities, ponds of less than one acre or farm lagoons of less than five acres on a farm as defined in § 96-2 which must be shown on a plan approved by the Soil Conservation Service of the County of Niagara. Such plan must be reviewed by the Planning Board to determine conformance with this section.
A.
No excavation shall be permitted within the Town of Somerset in any
use district other than the Industrial (I) District or the General
Industrial (GI) District under these or any other Town regulations.[1]
[Amended 3-11-1997 by L.L. No. 3-1997; 6-13-2000 by L.L. No. 2-2000]
B.
Any other excavation permitted herein must be pursuant to a written
permit or renewal thereof granted under authority of this chapter,
subject to the following conditions:
(1)
Each application for a permit or renewal shall be filed with the
Town Clerk of the Town of Somerset, which application shall be in
substantially the form of application approved by the Town Board.
The applicant must file 12 duplicate copies of such application.
(2)
Proof by deed or otherwise of ownership of property must be submitted.
(3)
Statement as to period of time required to complete the proposed
excavation, including restoration, must be submitted.
(4)
Statement as to the zoning classification of the land on which the
excavation is to be conducted must be submitted.
(5)
Survey of the land in question, together with a map showing the surrounding
area sufficient to identify adjoining property, must be submitted.
(6)
A map or survey at a scale of no smaller than one inch to 50 feet
and prepared by a licensed professional engineer showing the following
must be submitted:
(a)
Existing topography at contour intervals of five feet or grid
elevations to be tied into USGS benchmarks.
(b)
Soil boring sufficient to demonstrate the type of material to
be removed to the depth of the proposed excavation.
(c)
Surface drainage patterns, including grades of all existing
creeks.
(d)
Location of all proposed and existing underground utilities
and facilities.
(e)
Profiles and cross-sections of premises before and after excavation.
The Town Clerk shall forward a copy of the application to the
following:
The Planning Board shall hold a public hearing, shall publish
a notice in the official newspaper of the Town at least 10 days prior
to said public hearing and shall post the same on the official signboard
of the Town Somerset.
After the public hearing, the Planning Board may require any
additional conditions to be met in addition to those listed herein,
and the Planning Board shall have the power to vary standards and
conditions required herein which, in its discretion, would result
in unnecessary hardship to the applicant.
A.
In approving or denying an excavation permit, the standards and considerations
to be taken into account shall include but not be limited to the following:
(1)
No excavation shall be permitted within 200 feet of any road right-of-way
nor within 100 feet of any property line, nor shall any such excavation
be permitted within 500 feet of any residential dwelling unit within
the Town of Somerset.
(2)
Whether such excavation and proposed installation plan are in accord
with the intent of the Master Plan of the Town of Somerset.
(3)
Whether such excavation will result in the creation of holes and
pits which may be hazardous or dangerous.
(4)
Whether such excavation will cause soil erosion or depletion of vegetation.
(5)
Whether such excavation will render the land unproductive or unsuitable
for agricultural or developmental purposes.
(6)
Whether the excavation will impair the aesthetic or natural environment
of the area of such excavation or the surrounding area.
(7)
Whether such excavation will affect the character of surrounding
land use.
(8)
Whether such excavation will create excessive traffic or impair the
quality of existing facilities or drainage or will materially injure
existing highways or roadways. The Planning Board may require construction
of haul roads to alleviate this problem and may require maintenance
of said roads to prevent emission of dust.
(9)
Whether the area excavation can be effectively restored and revegetated.
(10)
Whether surrounding drainage areas will be adversely affected.
(11)
Whether such excavation will be in the best interest of the Town
of Somerset.
B.
The finding of the Planning Board that any one of the foregoing conditions
will be injurious to the general welfare of the people of the Town
of Somerset shall be grounds for denial of the special permit.
C.
After consideration of the foregoing conditions, the Planning Board
may grant a permit for a period not to exceed two years, which may
be extended on a yearly basis without the necessity of further public
hearings upon a finding of the Planning Board that such extension
will be in the best interest of the people of the Town of Somerset.
[1]
Editor's Note: Former § 96-10, Performance
bond, was repealed 3-11-1997 by L.L. No. 3-1997.
A.
Permit fees.
(1)
Upon filing of the application, a nonrefundable filing fee of $2,500
must be paid to the Town of Somerset. Prior to issuance of any permit
pursuant to this chapter, the applicant must pay an additional fee
based on the following:
(2)
The total sum shall be deemed a reasonable sum to cover costs of
review and administration, no part of which shall be returnable to
the applicant. Acreage shall be based on total area for the overall
site plan, including newly relocated off-site ditches. Acreage calculations
are to be made by the Town Board.
(3)
The fee for renewal of the permit shall be $2,500 plus $100 per acre
up to 50 acres and $3,750 plus $50 per acre over 50 acres.
B.
Excavation fee.
(1)
To assure the Town that the restoration takes place, Town streets
are adequately maintained and rebuilt and the improvements required
are satisfactorily completed, the Town shall require a fee payment
of $1 per cubic yard of all excavated material removed from the site.
This sum shall be billed by the Town and paid by the permittee every
six months. The first payment shall be made in advance upon issuance
of the permit by payment based on the phasing schedule and computed
by the Town Engineer. The Town shall split this excavation fee in
two equal parts: 1/2 to be immediately paid over to the Town and used
as the Town Board may determine; the other half of the excavation
fee shall be placed in an interest-bearing escrow account.
(2)
The amount of the excavation fee, including the upfront payment,
shall be determined by the Town. Calculations will be based on original
baselines established by the approved surveyor and resurveyed at the
semiannual inspection to determine the exact volume removed. The inspection
and survey cost shall be paid out of the escrow account, as shall
the emergency repairs of any Town roads, including restoration and/or
reconstruction of said roads, as well as other reasonable costs incurred
by the Town.
(3)
The excavation fee shall be paid within 30 days of receipt of the
Town bill. Failure to pay within this time frame shall constitute
cancellation of the permit and forfeit of performance bond and escrow
fund. At the satisfactory conclusion of the excavation project, including
the acceptance by the Town of all utilities and other requirements
of this chapter having been met, all unused escrow funds and accumulated
interest shall be returned to the developer along with a financial
statement of all transactions.
A.
Any excavation which has been discontinued for a period of one or
more years shall not thereafter be reestablished, and any additional
excavation must be pursuant to the requirements of this chapter.
B.
Except as provided herein, a nonconforming use for excavation may
be continued; provided, however, that such use must be terminated
on or before the expiration of a period of time after the effective
date of this chapter fixed for such termination. In the case of excavations,
such period of time shall be a period of one year [12 months] from
the date of the filing of this chapter with the Secretary of State.
C.
Any continuation of the excavation subsequent to that one-year period
shall be subject to the terms and conditions and all of the requirements
of this chapter.
Prior to the issuance of any permit, the applicant must apply
to this Town for state environmental quality review (SEQR),[1] and it is hereby declared that any excavation of material
shall be a Type I action, and it is the intention of the Town Board
or its agent to act as lead agent in relation to any and all applications
under this chapter. Further, prior to the issuance of any permit under
this chapter, the applicant must file with the Town all necessary
permits required by the State of New York for such excavation when
required.
[1]
Editor's Note: See Ch. 92, Environmental Quality Review.
In the Town of Somerset, no refuse, garbage or toxic waste of
any kind shall be deposited in any area excavated pursuant to the
requirements of this chapter.
This chapter shall be deemed an exercise of power of the Town
of Somerset to control excavation and to regulate the manner of construction
and removal of material from draining and cleaning and operating and
using lands in the Town for excavation purposes and to prohibit such
excavations which do not comply with these regulations.
[Amended 9-10-1996 by L.L. No. 2-1996]
A violation of any provision of this chapter shall be punishable
as a misdemeanor to the extent prescribed by law, and each violation
shall result in a fine not exceeding $500 for the first offense, a
minimum of $500 and a maximum of $1,000 for a second offense within
five years and a minimum of $1,000 and a maximum of $2,000 for a third
or subsequent violation within five years or imprisonment for a period
not less than 15 days and not more than one year, or both. Each week
of a continued violation shall constitute a separate violation. Also,
the Town Board, after five days' notice to the applicant, may
modify, suspend or revoke the permit upon any violation of the conditions
of that permit. Further, this chapter will authorize the Town Board
to initiate a proceeding in the Supreme Court of the State of New
York for injunctive relief in the event of a violation of any of the
conditions or requirements contained herein.
This chapter shall supersede any inconsistent law, rule or regulation
of the Town of Somerset.
The Code Enforcement Officer or any other person designated
by the Town Board shall be empowered to enforce this chapter and regulations
set forth herein. The issuance of a permit and acceptance of the same
by the applicant and landowners shall constitute permission for any
authorized Town officer or agent to enter the property subject to
the permit for inspection purposes.
