[HISTORY: Adopted by the Mayor and Council
of the Borough of Emerson 11-28-2000 by Ord. No. 1150.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded
former Ch. 244, Soil Removal, adopted 5-28-1974 by Ord. No. 628 (Ch.
107 of the 1966 Code), as amended 5-28-1984 by Ord. No. 847.
The purpose of this chapter shall be to prevent
the unregulated and uncontrolled relocation, filling, excavation and
removal of soil by developers and excavators which may result in conditions
detrimental to the public safety, health and general welfare substantially
hampering and deterring the efforts of the Borough to effectuate the
general purpose of the municipal plan. The continuation of the unregulated
and uncontrolled relocation, filling, excavation and removal of soil
and filling with unsuitable material may cause serious and irreparable
damage to the public welfare by reason of consequent soil erosion
by water and wind; inadequate and improper surface water drainage;
decrease in or destruction of the fertility of soil; removal of lateral
support of abutting streets, land and premises; creation of dust storms
and mosquito-breeding places; creation of dangerous depressions or
pits; deterioration of property values; rendering of lands unfit or
unsuitable to their most appropriate uses; and creation of other factors
and elements hampering and deterring the coordinated, adjusted and
harmonious physical development of the Borough.
As used in this chapter, the following terms
shall have the meanings indicated:
Any person who, either directly or through an agent or independent
contractor, engages or intends to engage in land subdivision or in
the construction of two or more dwelling houses, business or industrial
buildings in any subdivision for the purpose of sale to or occupancy
by another person or persons.
Any person who moves soil.
Any parcel of land or portion thereof, the boundary lines
of which can be ascertained by reference to the maps or records, or
either, in the office of the Tax Assessor of the Borough or in the
office of the Bergen County Clerk. For the purposes of this chapter,
a lot shall also be deemed to be any contiguous parcels of land under
common ownership, which ownership can be ascertained by reference
to the maps and records, or either, in the office of the Tax Assessor
of the Borough or in the office of the Bergen County Clerk.
Any soil permit other than ministerial for the moving of
soil within any period of 12 consecutive months.
A permit for the moving of soil, as required by § 244-5 of this chapter, between zero and 400 cubic yards of soil within any period of 12 consecutive months. If two or more applications in any twelve-month consecutive period require the movement of soil in excess of 400 cubic yards in the aggregate, said application shall be classified as a major soil moving application and shall be required to comply with § 244-6 of this chapter.
To dig, excavate, remove; deposit; place, fill; grade; regrade;
level or otherwise alter or change the location of contour; or transport;
or supply. This term shall not be construed to include plowing, spading,
cultivating, harrowing or discing of soil or any other operation usually
and ordinarily associated with the tilling of soil for agricultural
or horticultural purposes, landscaping and gardening by homeowners
or agents of homeowners, provided that it does not substantially alter
existing drainage patterns.
Any person seized in fee simple of any lot or having such
other interest or estate therein as will permit exercise of effective
possession thereof or dominion thereover.
Any earth, sand, clay, loam, gravel, humus, rock, or dirt,
without regard to the presence or absence therein of organic matter,
including any synthetic substance used as a substitute or in conjunction
with soil.
The developer shall provide the Borough Engineer with sufficient
documentation, including certified manifests, that the fill is suitable
to a particular location. Suitable materials shall include but not
be limited to materials such as earth, clay, gravel, stone, dirt,
recycled concrete, etc.
Soil that, in its natural state, constitutes the top layer
of earth, and is composed of 2% or more, by weight, of organic matter
and has the ability to support vegetation.
The developer shall provide the Borough Engineer with sufficient
documentation, including certified manifests, that the fill is not
in part or in whole composed of the following unsuitable materials.
The unsuitable materials are materials such as peat moss, organic
material, vegetation, leaves, tree stumps, wood chips, sawdust, chemical
waste, tires, wooden logs, etc.
No developer and no excavator shall move, allow,
permit or suffer to be moved any soil in or upon any lot in the Borough
unless and until a soil moving permit therefor shall first have been
issued in accordance with the provisions of this chapter.
All applications for soil moving permits shall
be made through the office of the Zoning Officer.
The procedure for applying for and issuance
of a ministerial soil movement permit shall be as follows:
A.
Applications for ministerial soil permits shall be filed with the Borough Clerk and Building Inspector and shall be accompanied by the fee prescribed in § 244-7 of this chapter.
B.
Applications shall be made in triplicate on forms
prescribed by the Borough and supplied by the Borough Clerk. In addition
to any other requirements which the Borough, acting through the Borough
Building Inspector, may require on data pertinent to the application,
the application shall show the following:
(1)
The identity and location of the applicant.
(2)
The lot and block number of the lot or lots involved.
(3)
The identity and location of the owner of the land.
(4)
A location/topographic survey of the site showing
both existing and proposed elevations.
(5)
The purpose or reason for the moving of the soil.
(6)
The estimated quantity in cubic yards of soil to be
moved.
(7)
A statement as to how the moving of the soil will
affect all trees with a diameter of six inches or more.
(8)
The proposed date of completion of the work.
C.
The Building Inspector, upon receipt of the application
shall forward one copy of same to the Borough Engineer. A copy of
the application shall be kept on file. The Borough Engineer shall
make a field investigation and shall recommend to the Building Inspector
that the permit be issued or denied, giving reasons for the denial.
D.
The Borough Engineer shall classify any ministerial
soil application as a major soil application if he finds the application
will present unusual drainage or erosion of soil problems or adversely
affect the development of the abutting lot or lots.
The procedure for applying for the issuance
of a major soil moving permit shall be as follows:
A.
On forms prescribed and supplied by the Land Use Board,
the applicant shall set forth, in duplicate, to the Land Use Board,
with a carbon copy to the Borough Engineer and Building Department:
(1)
The identity and location of the applicant.
(2)
The description of the lands in question, including
lot and block number of the lot or lots involved.
(3)
The name/and address of the owner of the lands.
(4)
The purpose or reason for moving the soil and whether
it will be done in connection with a proposed subdivision; if so,
the date of filing the application for subdivision.
(5)
A detailed statement of the method or process to be
employed for the excavation and the proposed time period for removal.
(6)
The kind and quantity in cubic yards of the soil to
be removed.
(7)
In case of removal or replacement of soil, the place
to which the soil is to be removed, and the place and quantity of
soil to be removed in fill and excavation and the transportation route
to be used in the Borough.
(8)
The proposed date of the completion of the work.
(9)
A certificate that he has placed or caused to be placed
stakes at each corner of the lot or lots from which soil is to be
removed, and further, that he has placed or caused to be placed grade
stakes at the existing elevation points designated on the topographical
map pursuant to the provisions of this chapter, clearly marked to
indicate the soil cuts or fill.
(10)
A statement as to how the moving of the soil
will affect all trees with a diameter of six inches or more.
B.
Signatures. Said application shall bear the signature
of the applicant and the endorsement of the owner or owners of said
lands signifying approval of the application, consent to the applicant
to perform the proposed work and consent to the Borough, in the event
of failure of the applicant to do so, to cause the proposed work to
be completed or otherwise terminated in keeping with the purposes
and objectives of this chapter.
C.
Topographical map. Accompanying the application shall
be eight prints of a topographical map of the lot upon which the proposed
soil moving operations are to be conducted and of all surrounding
lands within 100 feet of the perimeter of said lot, but not beyond
the far side of an abutting street right-of-way, prepared and certified
by a licensed professional engineer or land surveyor of the State
of New Jersey, on a scale of not less than one inch to 100 feet, and
referred to United States Coast and Geodetic Survey data, showing,
both as to the lot and as to all of the surrounding lands:
(1)
The dimensions of the lot, including distance and
bearings, and the lot and block number of the lot and of each lot
in the surrounding lands as shown on a Tax Assessment Map of the Borough.
(2)
The existing elevations of all lands on a 100-foot
grid layout.
(3)
The existing elevations of all buildings, structures,
streets, streams, bodies of water and watercourses, natural or artificial.
(4)
All existing surface and subsurface water drainage
conditions and provisions therefor.
(5)
All wooded areas and all trees having a diameter of
six inches or more at the base.
(6)
The limits of the area or areas within the lot or
lots in question within which the soil moving operations are to be
conducted, and the existing elevations of said limits at intervals
of not more than 100 feet.
(7)
The proposed final elevations at each point where
existing elevations shown on said map are to be changed as a result
of completion of the proposed work.
(8)
Proposed slopes and lateral supports at the limits
of the area upon completion of the soil moving operations.
(9)
Proposed provisions and facilities for surface water
drainage and, where applicable, channels of any streams, bodies of
water and watercourses, natural or artificial, including detailed
cross sections showing proposed channel widths, bank slopes, grade
and method of erosion control.
(10)
Accurate cross sections showing the locations
and quantities in cubic yards of soil to be moved.
(11)
All proposed elevations in enclosed rectangular
boxes; and all existing elevations to be indicated without any kind
of enclosure.
(12)
Such other pertinent data as the Land Use Board
may, by resolution, require.
(13)
All easements and restrictions of record which
may affect the subject lot or lots.
D.
Inspection of site.
(1)
The Borough Engineer shall make an inspection of the
site from which soil is to be moved and shall make such engineering
studies as may be required to determine the effect of the removal
of soil from the location as it relates to:
(a)
Soil erosion by wind and water.
(b)
Surface and subsurface water drainage.
(c)
Soil fertility.
(d)
Lateral support of abutting streets and lands.
(e)
Public health and safety.
(f)
Such other factors as may bear upon or relate
to the coordinated, adjusted and harmonious physical development of
the Borough.
(2)
The Borough Engineer shall also inspect the aforesaid site to determine whether stakes have been placed on each corner thereof and whether grade stakes have been placed at the existing points designated on the topographical map pursuant to the provisions of Subsection C hereof.
(3)
The Borough Engineer shall have the right to inspect
any fill material on site and if the Borough Engineer finds, in his
or her sole discretion, that the fill material is not suitable, the
Borough Engineer may require the developer to engage an independent
soils engineer, acceptable to the Borough Engineer, to provide an
analysis of the material. In the event the material is found to be
unsuitable, the Borough Engineer shall have the authority to order
the fill removed and replaced.
E.
Hearing. The Land Use Board shall, within 60 days
after receipt of the complete application, fix a date for a hearing
for the purpose of considering the application and shall give to the
applicant, either personally or by certified mail, notice of the time
and place of said hearing. The applicant shall, at least 10 days prior
to the date appointed for said hearing, serve written notice, either
in person or by registered mail, upon such persons as are shown on
the municipal tax records to be the owners of such lots within 200
feet of the property in question. The applicant shall at the hearing
present to the Land Use Board satisfactory proof in affidavit form
of the service of said notices.
F.
Factors to be considered in determining application.
In considering the application, the Land Use Board shall be guided
by the general purpose of the municipal plan and shall take into consideration
the following factors:
(1)
Soil erosion by wind and water.
(2)
Surface and subsurface water drainage.
(3)
Soil fertility and soil-bearing capacity.
(4)
Lateral support of abutting streets and lands.
(5)
Public health and safety.
(6)
Land values and uses.
(7)
Such other factors as may bear upon or relate to the
coordinated, adjusted and harmonious physical development of the Borough.
(8)
Proposed complete site or preliminary subdivision
plan.
G.
Decision. The Land Use Board shall review and consider
the application which must be complete, including all of the requirements
of the provisions of this chapter and the material factors brought
up at the public hearing and the reports of other reviewing authorities
of the Borough, and shall either grant or deny the issuance of said
soil permit. If the Land Use Board denies the permit, the reason for
the denial shall be stated. The Land Use Board also can issue a permit
with stipulations and conditions. The Land Use Board shall act within
60 days of the hearing date on which the application was presented
completely. The failure of the Land Use Board to either deny or grant
the permit within the aforementioned time period shall be considered
an automatic approval unless the Land Use Board, with the consent
of the applicant, extends the time limit for a period not to exceed
an additional 60 days.
H.
Appeal. In the event of a denial, the applicant may,
not later than 30 days after the date of such denial, appeal to the
Borough Council. The Borough Council may by a majority vote of the
members present sustain or by a two-thirds vote of its entire membership
overrule the Land Use Board recommendations.[1]
[Amended 5-20-2003 by Ord. No. 1229; at time of adoption of Code (see
Ch. 1, General Provisions, Art. I)]
A.
Soil application fees. The following fees are not
refundable whether the permit is issued, denied or withdrawn:
B.
Soil moving fee. The soil moving fee will be charged
at $0.05 per cubic yard of fill or excavation, whichever is greater,
less the soil application fee. If the permit is denied or withdrawn,
the soil moving fee shall be refunded, less the expenses incurred
by the Borough.
C.
Exemption.
All utility companies, federal, state and local authorities, including
the Board of Education and charitable organizations, and further,
any movement of soil amounting in the aggregate up to 10 cubic yards
of soil in a twelve-month consecutive period shall be exempt from
the requirement of the soil movement application fee and soil movement
fee.
A.
In the event the Land Use Board or governing body
recommends approval of the soil movement permit application, the Secretary
of that Board, or the Borough Clerk, where approval has been granted
by the Mayor and Council, shall forthwith give notice to the applicant
of the action of the approving authority, and further the amount of
the performance bond required as hereinafter set forth in this subsection.
In the event that the applicant fails to post the required performance
bond within 60 days of said notice, then the recommendation of the
approving authority shall be automatically rescinded.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
No soil removal permit shall be issued unless the
applicant therefor shall have posted with the Borough a performance
bond in form and with surety acceptable to the Borough in such amount
as the granting authority, with the advice of the Borough Engineer,
shall determine, conditioned upon full and faithful performance by
the principal within the time specified in the application of all
the proposed work in accordance with the provisions of this chapter
and of the soil moving permit issued pursuant hereto.
C.
The amount of said bond shall be determined at the
rate of not less than $0.10 per cubic yard and not in excess of $0.50
per cubic yard of the amount of soil to be moved; provided, however,
that in no event shall said bond be less than the principal amount
of $2,000. The granting authority may request additional bonds for
improvements shown on the soil moving application or plan, such as
but not limited to the following: retaining walls, planting, drainage
erosion, control damages to haul route, etc. In ascertaining the rate
upon which to compute the amount of the bond, the granting authority
shall take into consideration such factors as may bear upon the facility
with which the proposed work may be performed, including but not limited
to the type and character of the soil, the extent of the area over
which the soil moving operations are to be conducted, the extent and
depth of the various cuts and fills, the extent to which the area
of operations is wooded, the proximity of the proposed operation to
streets, buildings, structures, natural or artificial streams or watercourses
and general drainage conditions.
D.
Before the holder of any soil removal permit shall
proceed before the Land Use Board with any application for any amendment
or alteration of the terms and conditions of any outstanding soil
removal permit, there shall be submitted to the Land Use Board the
written consent of the surety on said bond approving said application
for amendment or alteration and consenting to the extension of the
bond coverage thereto.
E.
Applications for the release of any bonds posted in
accordance with the terms of this chapter or the resolutions of the Land
Use Board or Mayor and Council shall be accompanied by an affidavit
stating that the soil moving operation has been complete in accordance
with the application and all plans, maps and other data filed therewith
and in accordance with all resolutions and conditions therein adopted
by the granting authority. Said affidavit shall be executed by a licensed
professional or civil engineer or land surveyor of the State of New
Jersey.
A.
The soil movement permit shall be in such form as
may be prescribed by the Land Use Board. It shall be signed by the
Secretary of the Board before which the application is made, or the
Chair of the Board or the Chair of the Soil Committee of that Board,
and it shall contain any special conditions set forth in the recommendation.
B.
The soil movement permit shall be dated as of the
date it is actually issued, and the term of said permit shall not
exceed one year.
C.
All permits shall automatically expire on the termination
date unless application for renewal has been made and approved, in
writing, extending such permit.
No person to whom a soil movement permit has
been issued shall:
A.
Conduct or maintain on the premises any sand, gravel or similar kind of pit, any sand or gravel washing or screening machinery or equipment, any business or industry not permitted in the district in which said premises are located and classified by Chapter 290, Zoning, of the Borough of Emerson Code, as amended and supplemented, or any endeavor or enterprise other than the grading or regrading of said premises in accordance with the provisions of said permit and, where applicable, the necessary disposal of soil incidental to said grading or regrading.
B.
Conduct or maintain any soil moving operations without
first having made adequate provisions by means of road oil or otherwise
for the laying of dust incidental to the use of vehicles, machinery
and equipment on the lands described in the soil moving permit.
C.
Neglect to dispose of on or before the completion
date stated in the application any partially or wholly excavated boulders
or other incombustible debris resulting from the soil moving operations
by burial or removal and any partially or wholly excavated stumps,
felled or uprooted trees or other combustible debris resulting from
the soil moving operations by combustion or removal from the premises.
D.
Conduct any soil moving operations beyond the expiration
date as set forth in the soil removal permit or extended expiration
date as may duly be granted by the granting authority.
A.
Whenever any developer or excavator shall move topsoil
in or upon any lot, provision shall be made for the storage of said
topsoil within the boundary lines of said lot.
B.
Except as hereinafter provided, all of the topsoil
so stored shall be uniformly replaced over the entire area or surface
of the lot on or before the completion date set forth in the soil
permit so that the final grade or grades of said replaced topsoil
shall be in accordance with the proposed final grades shown on the
topographical map.
C.
No developer or excavator shall remove to any point
beyond the boundary lines of the lot any topsoil whatsoever unless
and until topsoil not inferior in quality to that to be removed shall
first have been replaced uniformly to a depth of not less than six
inches, measured from the proposed final grades as shown on the topographical
map, over the entire surface or area of the lot, excepting only such
portions thereof as shall be or shall have become, since the date
of filing of said topographical map, permanently covered by a structure
or building, street pavement, curb, sidewalk, driveway or other paved
area or by any body of water or waterway. In no event shall the developer
or excavator remove from the lot more topsoil than that comprising
the surplus or excess remaining after the replacement of the topsoil
as aforesaid.
No developer or excavator shall, at any time,
in the course of the work, dig or excavate more than six inches below
the proposed final grades as shown on the topographical map, unless:
A.
The soil removal permit specifies otherwise and the
performance bond, hereinbefore referred to, makes specific provisions
for replacement on or before the completion date set forth in soil
removal permit of soil of sufficient quantity and kind to restore
the final grades to those shown on the topographical map.
B.
After issuance of the soil removal permit, the developer
or excavator, before digging or excavating below said minimum level,
shall apply to the granting authority and be granted an amendment
of the application and topographical map then in effect, which amendment
may be granted upon such terms as the granting authority may deem
necessary to assure adherence to the purpose and objectives of this
chapter.
No developer or excavator shall deposit soil
upon, fill or raise the grade of any lot without first making provision
for:
A.
The use in said work of soil or such other materials
as will not result in deviation from the proposed final grade or the
uniformity thereof by reason of abnormal shrinkage or settlement.
B.
The collection and storage upon the lot of the original
topsoil to the end that said topsoil shall not be buried beneath soil
or other material of inferior quality and the uniform replacement
of the topsoil so stored over the entire area or surface of the fill
soil or other material so that the final grade or grades of said replaced
topsoil shall be in accordance with the proposed final grades shown
on the topographical map. In the event that such provision is not
practicable, provision shall be made for the uniform placement over
the entire area or surface of the fill soil or other material excepting
only such portions thereof as shall be or shall have become permanently
covered by a building or structure, street pavement, curb, sidewalk,
driveway or other pave area or by any body of water or waterway, of
a layer of topsoil not inferior in quality to that of the original
topsoil, to a depth of not less than six inches measured from the
proposed final grades as shown on the topographical map.
[Amended 5-20-2003 by Ord. No. 1229]
A.
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 Northeastern Jersey
Soil Conservation District of the United States Department of Agriculture
Natural Resources Conservation Service, and for which lands an approved
farm plan has been established by said agency, provided that all soil
moving operations in and upon such lands are performed in accordance
with said approved farm plans.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
No soil movement permit shall be required in connection
with the construction or alteration of a building on any lot for the
excavation and grading incidental thereto, provided that no soil is
removed from the lot or transported onto the lot.
C.
No soil movement permit shall be required for the
movement of topsoil onto any developed lot for the purpose of landscape
planting, provided further that the added depth does not exceed four
inches.
D.
No soil movement permit shall be required where the
only soil which is disturbed or moved is limited to that which is
excavated pursuant to the installation of swimming pool or the foundation
of a structure for which valid building permits have been issued,
provided the topography and elevation of the property is not altered.
E.
A permit shall not be required when soil is removed
or added pursuant to the removal of a tree stump.
For the purpose of administering and enforcing
this chapter, any member of the granting authority, or duly authorized
agent of the office of the Borough Engineer and Building Department
of the Borough, shall have the right to enter into and upon any lands
in or upon which soil moving operations are being conducted, to examine
and inspect such lands.
Any person who violates any provision of this
chapter or conditions attached to the issuance of any permit shall,
upon conviction thereof, be punished by a fine not exceeding $1,000,
imprisonment for a term not exceeding 90 days and/or a period of community
service not exceeding 90 days. A separate offense shall be deemed
committed on each day during or on which a violation occurs or continues.
