[HISTORY: Adopted by the Mayor and Council of the Borough of Wharton (Sec. 4-10 of the Revised General Ordinances). Amendments noted where applicable.]
Land use and development — See Ch. 165.
The Borough Council hereby finds and determines that the unregulated and uncontrolled relocation, filling, excavation and removal of soil on a large scale has resulted 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 municipal planning; that large soil removal operations shall be related to the overall physical development of the area within which such soil removal operation is located and, therefore, it is essential that proposed soil removal operations be considered fully by the Planning Board; and that the removal of soil should be limited to the quantity deemed necessary to develop the premises in question for purposes consistent with standards hereinafter established.
No person shall place fill or excavate or otherwise remove soil for sale or for use other than on the premises on which the soil is located, except for the excavation for the foundation of a building to be constructed or altered on such premises and the incidental grading needed to construct lawn and driveway, without first having obtained permission thereof from the Construction Official and/or Borough Engineer.
Major subdivisions and site plans approved by the Planning Board or Board of Adjustment, when such approval included a grading plan as described therein, are exempt from applying for a permit; however, prior to the commencement of clearing or the placement of fill or excavation or removal of fill, the developer of said major subdivision or site plan shall post with the Borough a bond as described in § 258-9.
As used in this chapter, the following terms shall have the meanings indicated:
- To take, to excavate, to relocate on or off the premises, to place, to fill, to grade, to regrade, level or otherwise alter or change the location or contour of soil, to transport, to supply. "Move" shall not be construed to include plowing, spading, cultivation, harrowing or any other operation ultimately associated with the tilling of soil for horticultural or agricultural purposes.
- Any earth, sand, clay, loam, gravel, humus, rock or dirt without regard to organic matter.
The provisions of the chapter shall not apply to soil moving, removal or excavation for building foundations and septic disposal systems or for driveways necessary thereto not in excess of 60 feet or in-ground pool; provided, however, that no moving, removal or excavation shall take place except in accordance with a building permit issued by the Building Inspector. A person may, however, bring to the premises amounts of soil not exceeding 30 cubic yards during any three-hundred-sixty-five-day period, provided the said soil is used to repair roads, driveways or landscaping, and no permit or fees shall be required.
Before consideration by the Construction Code Official and/or Borough Engineer of such permit, the owner of the premises from which soil is to be placed or removed shall first file with the Construction Code Official and/or Borough Engineer an application requesting such permission, together with a map of the premises, showing the contour lines and proposed contour grades resulting from such intended placement or removal of soil in relation to the topography of the premises. The proposed contour lines and proposed grades shall be subject to the inspection and approval of the Construction Code Official and/or Borough Engineer. The applicant will be required to describe how and when the disturbed area will be stabilized and revegetated. If the project disturbs more than 5,000 square feet, except for a single-family home, then a permit must also be obtained from the Morris County Soil Conservation Service, and the applicant must submit a copy of the plan submitted to the District, and a copy of any conditions imposed by the District shall be given by the applicant to the Construction Code Official and/or Borough Engineer.
Requirements for approval.
The Construction Code Official and/or Borough Engineer in considering and reviewing the application and in arriving at a decision shall be guided by and take into consideration the public health, safety and general welfare, and particular consideration shall be given to the following factors:
Soil erosion by water and wind, or fertility problems.
Drainage or sewerage problems and the effect of flooding upon the premises in question.
Lateral support slopes and grades of abutting streets and lands.
Land values and uses.
Such other factors as may bear upon or relate to the coordinated, adjusted and harmonious physical development of the Borough.
Effect of soil placement or removal upon public health, welfare and safety.
Determination that soil placement or removal will not result in the creation of any sharp declivities, pits or depressions or other dangerous conditions.
Whether the property can be developed for its zone use without the proposed soil removal.
Whether the proposed removal of soil is incidental to the development of the property or constitutes primarily a commercial activity.
The Construction Code Official and/or Borough Engineer shall not consider granting a permit for the removal of soil for sale or use on or off the premises from which the soil shall be taken unless and until the owner of the premises files a written application for such permit, in quadruplicate, with the Construction Code Official and/or Borough Engineer upon forms supplied by the Borough. The Construction Code Official and/or Borough Engineer shall not approve any application for soil removal until and unless the applicant submits proof that no taxes or assessments for local improvements are due or delinquent on the property for which application is made.
If permission to remove the soil shall be granted, the owner or person in charge shall so conduct the operations 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 with the contour lines and grades as approved by the Construction Code Official and/or Borough Engineer.
The owner or person in charge of the placement or removal of soil, when permission has been granted, shall not bury or take away the top layer of arable soil for a depth of six inches, but such top layer of arable soil to a depth of six inches shall be set aside for retention on the premises and shall be respread over the premises when the rest of the earthwork has been completed, pursuant to levels and contour lines approved by the Construction Code Official and/or Borough Engineer. After the arable soil has been spread and graded, it shall be fertilized, limed (if needed), and seeded, and all slopes steeper than three horizontal to one vertical shall be mulched or stabilized in some other acceptable manner.
If a permit is issued, the permittee shall conduct the removal of soil subject to the following terms and conditions:
The permittee shall agree, in writing, to properly level off, remove debris and grade the involved premises to the contour lines and grades approved by the Construction Code Official and/or Borough Engineer.
All soil removal operations shall be conducted only during the hours of 7:00 a.m. and 5:00 p.m. on weekdays; provided, however, that no trucks shall be permitted at the site of the operation prior to 6:45 a.m. It shall be unlawful to conduct moving, grading or excavating operations at any other times than specified herein or on any Sunday or legal holiday.
The transportation of soil shall be restricted to street routes established by the Administrator. Determination by the administration of the street routes to be used shall be based upon factors which contribute to the best interests of the health, safety and welfare of the residents of the Borough.
To prevent air pollution by large quantities of dust and dirt, all reasonable means shall be employed by the permittee or the person in charge of the soil removal, grading or excavating operation. The applicant will advise the Construction Code Official and/or Borough Engineer of his specific means of dust control.
If the project disturbs more than one acre of land or more than 5,000 cubic yards of soil, then on or before the fifth of each month there shall be filed with the Borough Engineer a certification by a professional engineer as to the volume of soil removed during the previous month. The violation of this provision shall automatically revoke the permit.
Where soil removal is permitted, no person, owner, developer, or excavator shall deposit soil upon, fill in or raise the grade of any lot without first making provisions for:
The use in said work of soil or such other materials as will not result in deviation from the proposed final grades or the uniformity thereof by reason of shrinkage or settlement.
The collection and storage upon the lot of 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 of 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 the requirement of the previous sentence is not practicable, provision shall be made for uniform fill soil or other material, except only such portions thereof as shall have become permanently covered by a building or structure, street, pavement, curb, sidewalk, driveway or other paved area, or by any body of water or waterway, or 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.
The preservation of existing watercourses, in accordance with the plans on file.
The planting of shrubbery and trees as may be directed by the approving authority.
At no time will excavations be permitted to go below the final grade as established by the submission.
Before any permit or permission for soil removal shall be granted or issued, the owner or applicant shall file with the Construction Code Official and/or Borough Engineer, a bond, in form and with surety acceptable to the Borough, in such amount as in the opinion of the Construction Code Official and/or Borough Engineer shall be sufficient to ensure the faithful performance of the work to be undertaken pursuant to the permission granted in accordance with the provisions of this section, including regrading to the contours proposed, spreading and fine grading of the arable soil, fertilizing, seeding and mulching and such other work as may reasonably be determined to be necessary for the protection of the public and particularly adjacent owners and restoration of damages caused by the approved moving of soil.
Permit fees. Prior to commencement of operations, a permit fee shall be paid to the Borough, calculated in accordance with the following schedule:
Additional costs. In addition to the fee as set forth in the preceding section, the applicant shall also pay for all engineering and other services which the Borough may deem desirable or necessary to ensure an orderly soil removal operation in full compliance with the provisions of this chapter.
In the event that, in the opinion of the Borough Engineer, the project or any part thereof has been abandoned, is unnecessarily delayed, or cannot be completed at the rate of progress or within the time specified in the soil removal permit, or there is a violation of any ordinance or any specific terms of the soil removal permit or agreement entered into between the Borough and the applicant, then the Borough Engineer may so certify in writing to the Construction Official, and the Construction Official may, after a hearing held on seven days' notice, declare a default and notify the person having an interest in or in charge to discontinue the project. The Construction Official may, at his option, revoke the soil removal permit or may call upon the surety to complete the project.
Appeal. In the event that the Construction Official and/or Borough Engineer should deny an application, the applicant may make written request to the Planning Board for a hearing, which shall be granted within 30 days thereafter. In this event, a review fee shall be paid prior to the hearing as follows:
Hearing; service of notice.
Upon the filing of a completed application as required by § 258-5B(2), together with the necessary accompanying items required, the Planning Board Secretary shall notify the applicant that the matter will be considered by the Planning Board at a public hearing to be held on the date therein fixed, which date shall not be less than 30 days nor more than 60 days after the date of receipt by the Secretary of the application, together with all other items required.
The applicant, upon receipt of such notification, shall serve or cause to be served by personal service or by certified mail, return receipt requested, a written notice upon all property owners, as shown by the most recent tax lists of the Borough, within 200 feet of the extreme limits of the property affected by the application.
Said written notice shall be served not later than seven days prior to the date of the public hearing and shall state the time and place of hearing, a brief description and location of the premises involved and a notation that a copy of the application and accompanying items which have been filed with the Planning Board Secretary are open for public inspection.
For the purpose of administering and enforcing this chapter, any duly authorized officer, agent or employee of the Borough of Wharton 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 land.