[HISTORY: Adopted by the Township Committee of the Township of Fredon Ord. No. 15-84 (Ch. XIA of the 1972 Revised General Ordinances). Amendments noted where applicable.]
Uniform construction codes — See Ch. 200.
Flood control — See Ch. 270.
Site plan review — See Ch. 424.
Soil erosion and sediment control — See Ch. 441.
Stormwater control — See Ch. 457.
Subdivision of land — See Ch. 470.
Zoning — See Ch. 550.
Editor's Note: By Ord. No. 2017-08, adopted 7-27-2017, the term "Planning Board" was changed to "Land Use Board" throughout the Code.
The Township Committee finds and determines that the unregulated and uncontrolled excavation and removal and relocation of soil, sand, stone, gravel, aggregates, rocks or other natural deposits on a large scale, or for sale or use other than on an individual tax lot, has or may result in conditions detrimental to the public safety, health and general welfare, substantially hampering and deterring the effort of the Township to effectuate the general purpose of municipal planning.
This chapter shall be known and may be cited as the "Fredon Township Soil Removal Chapter."
As used in this chapter, the following terms shall have the meanings indicated:
- APPROVED PLAN
- A plan for soil removal approved by the Land Use Board as a conditional use and by the Township Committee pursuant to the provisions of this chapter or, in case of nonconforming uses, by the Land Use Board and Township Committee pursuant to the provisions of this chapter.
- ARABLE SOIL
- Soil within eight inches of the surface of the premises from which soil is contemplated to be removed.
- The application of plant residue or other suitable materials to the land surface to conserve moisture, hold soil in place and aid in establishing plant cover.
- A certificate issued to perform work under this chapter.
- All unconsolidated mineral and organic matter of any origin, including sand, stone, gravel, aggregates, rocks and other natural deposits.
- The arable soil within eight inches of the surface.
Permit exceptions. No person or entity shall excavate for the removal of soil, sand, stone, gravel, aggregates, rocks or other natural deposits for sale or use or otherwise remove, store or stockpile the same for sale or use on any given tax lot, unless a soil removal permit has been first obtained, as herein set forth. However, the provisions of the soil removal chapter shall not apply to the removal of soil, sand, gravel, aggregates, rocks or other natural deposits if:
The amount of said removal is 100 cubic yards or less.
The removal is associated with and incidental to the excavation required for the construction of a single-family dwelling and associated lawns, driveways, accessory buildings, patios, retaining walls, on a single lot in accordance with the building permits issued by the construction official.
The removal is associated with the excavation required for the construction of an in-ground or aboveground swimming pool.
The removal is associated with the excavation required for the construction or reconstruction of individual sewage disposal systems in accordance with permits issued by the Board of Health.
The removal is limited to a disturbed area of not more than five acres and is associated with, and incidental to, the construction of an approved site plan, if the material removed is utilized as fill material on the subject property, or the amount removed from the site does not exceed twice the volume of the material displaced by the building foundation or foundations.
The removal is associated with and necessary for the reconstruction and/or construction of roads, drainage systems, sanitary sewers, flood control measures or other improvements approved on the subdivision plat by the reviewing municipal body or undertaken by any governmental agency.
The removal is associated with and incidental to the regrading of the yard on an existing developed single lot for purposes of making or installing drainage improvements.
Issuing authority. No application for a permit shall be made, pursuant to this chapter, until a conditional use permit has been obtained from the Land Use Board. The Township Committee shall be the issuing authority for the soil removal permit.
In the case of soil removal operations presently in existence as nonconforming uses, the owner or operator shall file, within 90 days from the adoption of this chapter, an application for a soil removal permit under this chapter with the Land Use Board. The Land Use Board shall consider the application and make its recommendations to the Township Committee within 65 days from the date of the filing of the application. The Township Committee shall then determine the application for a soil removal permit as set forth herein.
An application to the Land Use Board for a conditional use permit and for recommendations to the Township Committee on an application for a soil removal permit for a nonconforming use shall be accompanied by the following:
A map showing:
Existing contour lines at two-foot intervals. No such topographical map is required for the removal of less than 5,000 cubic yards of total material unless specifically required by the Board.
Proposed contour lines at two-foot intervals after removal of the soil.
All existing structures on the subject premises and within 200 feet thereof.
All existing roads and drainage on the subject premises and within 200 feet of the property.
Location of topsoil storage areas.
Methods of controlling silting of downstream properties.
The elevation of the water table and of bedrock.
The test method utilized shall make exploration for the water table to a depth of at least eight feet below the proposed final grade. A three-hundred-foot grid pattern shall be used in determining the water table with a minimum of four locations for a five-acre tract. The applicant shall notify the Township Engineer at least seven days in advance of conducting the tests to determine the water table, and the Township engineer, or his representative, shall be present and witness the tests when conducted. A certification of the applicant's engineer shall be inserted on the map which shall read as follows "I hereby certify that the water table is (or is not, whichever is applicable) within eight feet of the proposed final contour as shown on this map." The Engineer's certification shall also include the names and addresses of the persons witnessing the tests utilized to determine the water table, the dates that the tests were taken and the test methods utilized and a log of the materials found in the test holes or pits.
All existing trees, 2 1/2 inches or greater in diameter, measured 4 1/2 feet from the ground level.
Sites which exist at the time of the enactment of this chapter on which there is an existing gravel bank from which 5,000 cubic yards or less of material are removed during any calendar year are not required to file the map as required hereunder; provided, however, that the Township Engineer shall cause a site inspection to be made prior to the issuance of any permit on any such site, and he shall determine if the operation, if continued, will have a detrimental effect on the adjoining properties, roads, streams, waterways and on the public health and safety. The Township Engineer shall render an inspection report and recommendation to the Land Use Board for its consideration and action prior to the issuance of any permit. The Land Use Board shall have the right after receipt of the Engineer's report and recommendation to require the filing of a map in accordance with the provisions of this chapter if it shall deem if necessary for the proper performances of its duties under this chapter.
The map submitted by the applicant showing proposed contours shall divide the property, from which soil is to be removed, into five-acre sections. The applicant shall indicate on the map the numerical sequence in which sections are to be worked. Not more than one section shall be worked at any one time pursuant to § 446-11L herein.
Aerial photographs. An aerial photograph of the site as filed with the Township Engineer.
Soil removal. An indication of the total number of cubic yards to be removed and the length of the time within which the proposed operation shall be completed, which shall normally not be longer than five years. Where a total project is not capable of being completed within five years, it shall be broken down into two sections, one of which shall be completed within five years and the other within such further period not exceeding five years as the appropriate Township body may determine.
Approved plan. An approved soil erosion and sediment control plan prepared by a licensed New Jersey Professional Engineer, in accordance with Specifications for Soil Erosion and Sediment Control of the Sussex County Soil Conservation District and Chapter 441, or a soil erosion plan approved by the Sussex County Soil Conservation District.
Requirements. All of the requirements of the Township ordinances governing site plan review shall apply to soil removal applications and a site plan application shall be filed with the soil removal application and all of the requirements of the site plan including the fee provisions shall be complied with.
Factors. In considering and reviewing the application and arriving at its decision, the Land Use Board shall be guided and take into consideration the public health, safety and general welfare and the general purposes of land use control, and particular consideration shall be given to the following factors:
Soil erosion by water and wind.
Surface water drainage.
Lateral support of abutting streets and lands.
Public health and safety.
Land values and uses.
Contours, both existing and proposed.
Existing contours and topographic character of the land prior to removal of any soil and the proposed contours which shall result subsequent to the removal of soil in accordance with the soil removal application.
Whether the proposed removal of soil is necessary and incidental to the development of the property for its intended use or whether the proposed removal constitutes primarily a commercial activity.
Effect of tree removal.
Traffic impact and appropriate truck routes. The Land Use Board shall have the authority to require the applicant to conduct engineering studies and a traffic survey on the roads in the vicinity of the proposed soil removal operation in order to determine if such roads are of sufficient strength to support the truck traffic to be emanating from the operation. The traffic survey, if required, shall be made with counters and the average daily traffic shall be determined.
Approval. Said application and map must be approved by the Sussex County Soil Conservation District.
Denial. In the event that, after considering and reviewing the application, the resultant effect would be a creation of a lake, pond, hole, pit or depression, or stagnant water would collect on the property, or the nature of the operation would be a wet-mining operation, then and in that event the existence of any one of these factors alone may be a sufficient for the denial of the permit.
Off-tract improvements. The Land Use Board, in cases where it determines that off-tract improvements are necessitated or required because of the proposed soil removal operation, shall have the authority to require the applicant to construct off-tract improvements in accordance with the provisions of Chapter 441.
After approval of the application by the Land Use Board, a permit shall be issued by the Township Committee. Said permit shall be issued on an annual calendar-year basis. For renewal of permits, see § 446-11K.
If a permit is issued for the removal of earth and soil as provided herein, the owner, or person in charge, shall conduct the operation so that there shall be no sharp declivities, pits or depressions, and in such manner that the area shall be properly leveled off, cleared of debris and graded to conform with the contour lines and grades as required and shown on the approved plan. No soil shall be removed nor shall any operation be conducted so as to violate any of the regulations contained in this chapter.
Planting. Arable soil within eight inches of the surface shall not be removed from the licensed owner's premises, but promptly, on completion of operations, the arable soil so retained shall be respread on the surface as uniformly as possible to a minimum depth of eight inches, and seeded with winter rye or other suitable planting. If bedrock is present at least four feet of soil cover over the bedrock shall be applied and an additional eight inches of arable soil shall be respread and seeded with winter rye or other suitable planting.
Drainage. If the soil within eight inches of the top is not arable to a minimum depth of eight inches shall be spread thereon promptly when the operation is completed in each area. Provisions shall be made for adequate drainage after the topsoil is replaced.
The following regulations shall be observed:
Prohibited. Soil removed shall not be deposited or in any way thrown or placed upon adjoining property or public roads. Any soil or material resulting from any operation, accumulating on any adjoining property or public road, shall be removed therefrom immediately, upon notice by the Township to the permittee.
Access road. The petitioner shall construct a course gravel access road into the removal site to ensure that trucks leaving the site will not track material onto the public road. Such access road shall be in accordance with the requirements of the Township Engineer.
Operations near streams or wetlands. All operations shall be conducted in strict accordance with any state law, other ordinances of the Township and the terms and conditions of any permit granted for the operations. No operation shall be permitted within 100 feet of any stream or wetland, unless it can be shown that soil removal will not alter the quantity or quality of the water, nor adversely affect the rate of water flow, and that the final finishing grade requires soil removal within the one-hundred-foot distance.
Nuisances or hazards. The operation shall be conducted so as not to constitute a nuisance to adjoining owners or the Township, and in no event shall the operation create any hazardous or unsafe condition with regard to any person or persons. No soil shall be removed within 100 feet of the road right-of-way of any public road or within 100 feet of any adjoining property line except for that removal which is necessary for final grading and which has been approved by the Land Use Board.
Clearance of area. Upon completion of an operation or of excavation from an area delineated on the approved plan, the area shall be properly cleared of debris, graded to conform to the contours and grades, and trees shall be planted, in accordance with the approved plan. A final map shall be submitted containing and complying with all requirements as set forth in this chapter.
Requirement of approved plan. Soil shall not be removed, except in accordance with the approved plan, which plan may, upon application, be amended from time to time by the Land Use Board.
Water table and grade level restrictions. No soil shall be removed which is within eight feet of the water table, and no soil shall be removed which is below the grade established and shown on the approved map.
Garbage; pollution; safety hazards. No trash, garbage, junk or debris shall be stored in any licensed area and no safety hazards shall be permitted, either during or after the completion of operations. All burning of combustible debris, resulting from the soil operation, shall be subject to the regulation of a higher authority in effect and shall be undertaken so as not to create a smoke nuisance or pollution safety hazard.
Inspection. The applicant shall permit the inspection of the operation, at any reasonable time, by the subcode official and/or the Township Engineer, or any other person designated by the Township to perform such inspections.
Processing and blasting. There shall be no processing of any type of material on site and there shall be no blasting permitted under any circumstances on site.
On or before November 1 of each year, every soil removal operator holding a permit issued pursuant to § 446-8 shall file an application for an annual operating license for the next ensuing calendar year. Said application shall be accompanied by the following:
A letter from the Township Engineer that inspection of the licensed premises has been made pursuant to the requirements of Subsection I and setting forth the results of said inspection, including specification of any violations of this chapter or of any law or ordinance.
A statement from the tax collector of the Township that all taxes levied and assessed against the licensed premises have been paid to date.
Payment of an annual operating fee, which shall be $100 where the operating license contemplates removal of less than 5,000 cubic yards in the ensuing year, and $500 where more than 5,000 cubic yards are expected to be removed in the ensuing year.
If the report of the inspection of the Township Engineer indicates that there are any violations or problems in connection with the soil removal operation, the Clerk shall not issue the annual operating license but shall submit all papers to the Township Committee. The Township Committee may determine, on the basis of the papers submitted, to authorize issuance of the license or of a limited or conditional license; or in its discretion, may, in the case of serious violations, require the licensee to show cause why the operating license and permit should not be suspended or revoked.
Soil removal limited to five-acre sections. In order to minimize the possibility of mudslides or drainage of silt, and for safety purposes, the area of operations for excavation shall be limited to one five-acre section as shown on the applicant's soil removal map, at any one time. The applicant shall fence and enclose the five-acre section currently the subject of soil removal operations. The applicant shall not commence soil removal upon a succeeding five-acre section without the replacement of topsoil and reseeding and restoration of the previous five-acre section and approval of restoration by the Land Use Board. Each succeeding five-acre section shall be enclosed before soil removal operations are commenced thereon.
Respreading and reseeding. Upon the completion of work in any specific area, all respreading of arable soil and reseeding as required by this section and§ 446-10A of this chapter shall be completed within 60 days thereafter; except that, if the completion of work in an area occurs during the winter months when it would not be practical to respread and reseed it, the work shall be completed within the additional time as may be specified by the Land Use Board.
Exception. In any action taken by the reviewing municipal body with regard to this section, the body shall give primary consideration to the rules, regulations and standards herein set forth, in order to promote the general welfare of the entire community. If, however, the applicant can clearly demonstrate, because of peculiar conditions pertaining to his or her land, the literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the reviewing municipal body may grant exceptions from the requirements of such sections as may be reasonable within the general intent of this chapter. It shall state its reasons for granting any such exceptions in resolution form.
Hours of operation. Hours of operation shall be limited from 7:00 a.m. to 6:00 p.m., Mondays through Fridays, and 7:00 a.m. to 1:00 p.m. on Saturdays, including but not limited to loading of trucks, excavation of materials, arrival and departure of vehicles prior to and after the times as set forth herein. There shall be no operation of any kind or character on Sundays or legal holidays.
[Amended by Ord. No. 99-06]
Working face of excavation. While working an area, the working face of excavation shall not exceed 85° from the horizontal, nor shall an 85° angle have a vertical height exceeding 30 feet. Any face not currently being worked on shall not exceed 30° from the horizontal. A suitable fence shall be erected on three sides of the working face of the excavation in order to prevent persons from approaching such working face from the existing grade level. Where an excavated area adjoins an road, no excavation shall be made below the level of the road from a distance of 100 feet back from the right-of-way of the road. Where an excavated area is within 50 feet from any building, the finished grade thereof shall not exceed 10% or be less than 2%. Care should be taken so that there shall be no diversion of surface water either during the operation or after the project is complete.
Application fee. Upon application for a permit for the removal of a total of less than 5,000 cubic yards of material, pursuant to the provisions of this chapter, the applicant shall pay a filing fee in the amount of $500. For an application for the removal of more than 5,000 cubic yards the shall be $500. In addition, at the time of filing the application for the removal of less than 5,000 cubic yards of material, a deposit in the sum of $250 to cover review of the Township Engineer, planning consultant and other Township personnel and site inspections and other review fees shall be made with the Township Clerk by the applicant. In the case of an application for the removal of more than 5,000 cubic yards, the deposit shall be $500. Any unused portion shall be returned to the applicant. The Board shall have the right to require additional deposits to paid by the applicant, from time to time, in order to insure that review and inspection fees are adequately provided for. Upon the issuance of a permit for the removal of 5,000 cubic yards or less, the applicant shall pay another deposit in the sum of $250 to cover reasonable inspection fees to municipal personnel, including but not limited to the Township Engineer, for any inspections of improvements. Upon the issuance of a permit for the removal of more than 5,000 cubic yards, the deposit shall be $500.
Inspection fee. Thereafter, the permittee shall reimburse the Township promptly for the cost of all periodic inspection fees, as well as any extraordinary costs or expenses, including attorneys' fees necessitated as a result of unforeseen difficulties or exigencies or necessitated by or resulting from any violation of any provision of this chapter. Should the applicant fail to reimburse the Township for the aforesaid fees, within 14 days of a request by the Township to do so, the permit may be suspended or revoked for such period of time as the Township Committee may determine.
Bond required. Before any work is done for which a permit is required, and during the period covered by the permit, the applicant shall file and maintain a bond in form and with surety approved by the Township Attorney in an amount deemed sufficient by the Township Committee on a recommendation of the Township Engineer, that shall be sufficient to insure faithful performance of the work to be undertaken pursuant to the conditions of the permit and the terms thereof. The bond shall be in an amount not less than $3,000 per acre of land which is actually being worked in accordance with the approved plan. The bond shall cover the respreading of topsoil as required by the provisions of § 446-10 and also final provisions for drainage of the site and grading to final contour. The amount of any performance bond or guarantee may be reduced by the Township Committee by resolution, when portions of the improvements or works have been completed, upon recommendation of the Township Engineer.
Release from bond. When all required performance has been completed, the obligor shall notify the Township Committee, in writing, by certified or registered mail, of the completion thereof and shall send a copy thereof to the Township Engineer. The Township Committee shall authorize the Township Engineer to inspect the site to determine that all requirements of the approved plan have been complied with. The Township Engineer shall thereupon file a report in writing with the Township Committee which shall be detailed and shall indicate either approval, partial approval or rejection. If the work covered by the bond or performance guarantee, or any portion thereof, shall not be approved or shall be rejected by the Township Engineer, the report shall contain a statement of reasons for such nonapproval or rejection. Where the rejection indicates partial approval of the improvements or works, it shall indicate the costs of the work for which approval is rejected. The Township Committee shall accept or reject the work, grant partial approval, or withhold approval, on the basis of the report and shall notify the obligor in writing by certified or registered mail of the contents of the report and the action of the Township Committee with relation thereto, no later 90 days after receipt of notice from the obligor of the completion of the work. Where partial approval is granted, the obligor shall be released from all liability pursuant to his performance guarantee bond except for that portion adequately sufficient to secure the work not yet approved.
After reasonable notice and an opportunity to be heard before the Township Committee, the permit of any person may be revoked or suspended for such periods as the Township Committee may determine, for any violation of the terms hereof or the terms and conditions of any approved plan and permit granted hereunder.
Maximum penalty. For violation of any provision of this chapter, the maximum penalty shall be a fine of $1,000 and/or imprisonment in accord with the schedule shown in § 1-3. The minimum penalty imposed shall be a fine of $100.
Default. Any person convicted of the violation of this chapter, in the discretion of the court in default of the payment of any fine imposed therefor, be imprisoned in the county jail for a term not exceeding 90 days.
Separate violations. Except as otherwise provided, each and every day in which a violation of any provision of this chapter continues shall constitute a separate violation.