[HISTORY: Adopted by the Town Council of the Town of Portsmouth 10-29-1973 by Ord. No. 107 (Ch. 5 of the 1976 Code). Amendments noted where applicable.]
For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:
BUILDING INSPECTOR
The person charged by the Town with the issuance of building permits.
EARTH REMOVAL
The extraction or removal of any sand, gravel, loam, topsoil, clay or shale from deposits on any tract of land, excluding extracting, removing, digging, mining or quarrying limestone, limerock or granite, and excluding operations of a sand and gravel plant in operation on and the immediately surrounding 20 acres of industrial zoned land upon which the sand and gravel plant is located, and excluding also earth removal involved in the process of grading land:
A. 
For the construction of a building for which a building permit has been issued;
B. 
For the construction of a roadway; or
C. 
For a subdivision in accordance with a plat, plan or plans approved by the Planning Board of the Town.
RESIDENTIAL USE
Any zone in which no use, save dwellings, including multifamily dwellings, is permitted without first obtaining a variance, exception or special exception from the Zoning Board of Review.
ZONING BOARD OF REVIEW
The Zoning Board of Review established by the Town.
Upon any land located within a residential use area as herein defined or within 50 feet of such residential district:
A. 
Time when removal prohibited. Earth removal operations shall not be conducted during the period from 8:00 p.m. to 7:00 a.m. of any Monday, Tuesday, Wednesday, Thursday, Friday or Saturday, nor shall such operations be conducted on any Sunday or legal holiday. Earth removal operations during the within prohibited times or days may be authorized by special exception issued by the Building Inspector.
B. 
Setbacks. No earth removal shall be conducted within a distance of the greater of 25 feet of the boundary of any tract of land adjacent to residential use property or within 50 feet of any dwelling.
C. 
Fencing. The boundary of any tract of land upon which earth removal is being conducted adjacent to developed residential property shall be fenced. Such fencing shall be five feet in height and of such construction as to effectively control access to the area in which such earth removal is being conducted.
D. 
Dust control. Calcium chloride or oil shall be applied to all non-hard-surfaced roads used for vehicular ingress or egress to any tract of land upon which earth removal is conducted and to the regularly traveled roads within any such tract of land. Such applications shall be made at intervals and in amounts sufficient to prevent observable dust from rising from the road surface.
E. 
Drainage. Upon any tract of land upon which earth removal is being conducted, adequate drainage shall be provided to prevent the permanent collection and stagnation of surface or underground waters and the flooding or erosion of surrounding property.
Within any district or area other than a residential use district:
A. 
Dust control. Calcium chloride or oil shall be applied to all non-hard-surfaced roads used for vehicular ingress or egress to any tract of land upon which earth removal is conducted and to the regularly traveled roads within any such tract of land.
B. 
Drainage. When earth removal operations cease, all slopes on any tract of land upon which earth removal has been conducted shall remain at the natural angle of repose, so that stagnant water will not permanently collect and such tract will not be subject to erosion by wind or water.
Earth removal shall not be conducted without a license for such removal having first been issued by the Building Inspector and the payment of a license fee of $25.
As a condition precedent to the issuance of a license, an application for such license shall be made to the Building Inspector. Such application shall contain:
A. 
A plan prepared by a registered engineer setting forth the existing contours of the portion of the tract of land upon which earth removal is to be conducted and, based upon classifications of preliminary samples of the material to be removed, the final contours of such portion of the tract of land upon completion of earth removal operations and the type of ground cover to be planted or applied upon completion of earth removal operations to effectively control wind and water erosion, provided that, if suitable fertile ground cover existed at the beginning of earth removal, then such plan shall show that enough of such ground cover is to be held in reserve and reapplied for a minimum thickness of three inches.
B. 
The opinion by a registered engineer that, upon completion of earth removal operations, all slopes on such portion of the tract as set forth in said plan shall remain at the natural angle of repose.
C. 
The time, not to exceed three years, within which earth removal shall cease and such plan is complied with.
D. 
A bond not to exceed $100 for each acre of such portion of the tract of land to insure compliance with the plan as filed.
Upon the submission of a license application which meets the requirements of this chapter, the Building Inspector shall consider such application and, upon his approval thereof and the payment of a fee of $25, shall issue a license for earth removal on the portion of the tract of land specified in such approved application. Such approval by the Building Inspector shall be based upon his finding that the application as presented is in proper order and that adherence to the required plan contained therein will, upon completion of earth removal operations on such portion of the tract of land, provide the following:
A. 
That all slopes shall remain at the natural angle of repose.
B. 
That such portion of such tract will not permanently collect stagnant water.
C. 
Ground cover of a type and thickness sufficient to effectively control wind and water erosion shall be provided.
The Zoning Board of Review, upon petition or on its own motion, may revoke any license issued under this chapter for violation of any of the provisions hereof. Prior to any action of the Zoning Board of Review, it shall hold a hearing thereon and give the licensee seven days' notice of such hearing.
A licensee under this chapter may apply for the revision of the plan contained in an approved application. Such application for revision shall be limited in scope to the area of land covered in the previously approved application, shall meet the requirements of an original plan as specified in this chapter, shall contain a statement indicating the applicant's reason for seeking a revision, and shall specify the time within which earth removal shall cease and the revised plan be complied with. Such time shall not exceed the then-expired portion of the time specified therefor in the original approved application. Such revised plan may be approved by the Building Inspector upon his finding that such plan meets the requirements of § 155-6 for the approval of an original application and that the revision is not sought to alleviate a hardship created by the licensee's failure to conduct earth removal operations in such a way as to reasonably anticipate the needs of, and provide for the implementation of, the plan contained in the original application.
Notice of the issuance of a license or the approval of a revised plan under an issued license shall be given by publication of notice to that effect in a newspaper of general circulation in the Town, which notice shall be published within seven days of such issuance or approval.
If a licensee under this chapter shall fail to complete the plan contained in the approved application within the time specified therein, then, in addition to action against the licensee's bond, the Director of Public Works, after 30 days' written notice to the licensee, is authorized to undertake and complete the plan. In the event of such undertaking by the Director of Public Works, the owner of the land specified in such application shall reimburse the Town for its necessary expenses in connection therewith, and such expenses shall constitute a lien upon the entire tract of land of which any portion has been specified in an approved application.
Suit may be brought in the Superior Court in the name of the Town to restrict any violations of, or compel compliance with, the provisions of this chapter.
Upon special application and after a showing that the literal enforcement of this chapter will work a hardship, the Zoning Board of Review may grant an exception to any terms of this chapter upon a finding that such exception will not result in a substantial depreciation of surrounding property.
Appeals from the decisions of the Building Inspector to the Zoning Board of Review shall be taken within 20 days after publication of the notice of such decision as provided in § 155-9 hereof. Such appeals shall be taken in the same manner as other appeals to the Zoning Board, and the procedure as to notice and hearings shall be the same insofar as consistent herewith.
A. 
The provisions of this chapter shall not apply to earth removal being conducted on October 29, 1973, until 60 days thereafter, except that application for a license may be made and license issued as provided by this chapter during such sixty-day period following the effective date hereof, provided that the plan required in such application need not set forth existing contours for that portion of the tract of land on which earth removal has been completed on the effective date hereof.
B. 
Real property acquired or leased for the purpose of earth removal and held for such purpose on October 29, 1973, shall be considered in use for earth removal, whether or not extraction has then actually commenced. To qualify under this subsection, the following conditions shall be considered as conclusive evidence that such real property was acquired or leased and held for the purpose of later mineral extraction:
(1) 
Such real property was acquired or leased prior to July 1, 1973;
(2) 
Such real property was acquired or leased by an individual, corporate or otherwise, engaged at the time of acquisition in the business of mineral extraction;
(3) 
Such real property, or the substantial portion of such property, has not been permanently developed for any residential, commercial (other than farm or agricultural) or industrial purpose;
(4) 
Such real property contains mineral deposits of a demonstrable economic value; and
(5) 
On or before December 31, 1973, the owner or lessee of such tract of land shall file in the office of the Town Clerk a statement setting forth his intention to engage in earth removal on such tract of land and describing such tract.
C. 
The provisions of Subsection B of this section shall not apply to any tract of land for which the statement of intention provided for in Subsection B(5) of this section is not filed as provided therein, and any such tract of land shall not be considered as acquired, leased or held for the purpose of earth removal.