A.
It is an essential goal of the Town, in conformance with the Town's
Comprehensive Plan, that it protect its residents by safeguarding
residential and agricultural land as well as water resources and the
natural environmental features of the Town. The Town recognizes that
its residents are dependent on groundwater supplies for domestic use.
B.
In recognition of its obligation to protect the public health, welfare
and safety of persons within the Town and consistent with Environmental
Conservation Law § 23-2701 et seq., (the Mined Land Reclamation
Law, hereinafter "MLRL"), presently existing land uses, zoning districts
and the Town's Comprehensive Plan, the Town hereby establishes its
policy with regard to criteria for natural products districts and
for regulating the operation of mineral extraction operations to the
extent permitted by New York state law.
The following operations and uses are hereby excepted from the
application of this article:
A.
General construction exception.
(1)
Nothing contained herein shall prohibit excavation incidental to
construction of a driveway, private road, walk, wall or building or
part thereto, or accessory thereto, for which any required building
permits have been issued, where the excavation occurs on the same
or contiguous parcel as the construction. In cases of real estate
subdivision, the cut and fill of on-site soils are expected to be
in balance and not hauled off the building site, except as provided
below. Provision shall be made to restore an effective cover crop
to any area of land from which topsoil has been removed or covered
with fill within the first growing season following the start of such
operation.
(2)
Any person who proposes the removal of more than 100 cubic yards
of minerals from the earth within 12 successive months and where a
mining permit is not required pursuant to the Mined Land Reclamation
Law (Environmental Conservation Law Article 23, Title 27, § 23-2701
et seq.), through waiver, exemption, or otherwise, must obtain a special
use permit from the Planning Board for small-scale mining pursuant
to the provisions set forth herein.[1]
B.
General farming exception. Nothing contained herein shall prohibit
excavation for the purpose of moving topsoil, soil or earth from one
location to another location on the same or contiguous parcel for
grading, improving or draining said land, provided that such excavation
is necessary for, or accessory to, farming operations.
C.
Sewage disposal and underground storage tanks exception. Nothing
contained herein shall prohibit excavation for sewage disposal systems
or underground storage tanks.
D.
Fire and farm pond exception. Nothing contained herein shall prohibit
construction of private farm ponds with a tributary drainage area
of less than one square mile, farm ditches and fire ponds. However,
construction must meet all criteria required by the Department of
Environmental Conservation (DEC) concerning classified waterways.
E.
Mines less than 1,000 tons or 750 cubic yards. Any person who proposes the removal of fewer than 1,000 tons or 750 cubic yards of minerals from the earth within 12 successive calendar months shall obtain a special use permit pursuant to § 150-71 of this chapter, Standards and procedures for small-scale mining, except as provided in Subsection F below.
A.
Permitted uses. The legislative determination to establish a natural
products zoning district must be based on the following standards:
(1)
Location.
(a)
The only zoning district within which mining shall be a permissible use is a natural products (NP) zoning district. Unless a zone is designated NP, mining shall be prohibited and there shall be no accommodation by special use permit, except as specified in §§ 150-70 through 150-73 relating to small mines.
(b)
In addition, within a district currently zoned R (residential
district), no NP district exceeding an area of 10 acres shall be created,
and rezoning to NP shall not be permissible within the Hamlet District,
a wetlands area designated by the New York State Environment Conservation
Department (DEC) or the United States Army Corps of Engineers, or
an area which has been designated a critical environmental area (CEA).
(2)
Importation. The importation of materials excavated off site for
the purpose of processing or manufacturing on site shall not be a
permissible use within an NP zoning district.
B.
Requirements and procedures for rezoning to a natural products zoning
district.
(1)
An application for rezoning to an NP zoning district must be made in accordance with the provisions of this article and Article XV and shall only be established if the objectives and provisions of this chapter and the laws of the State of New York are satisfied as determined by the Town Board.
(2)
Approval by the State of New York of a mining permit under the MLRL
does not constitute approval by the Town for amendment of the zoning
districts.
(3)
The process for compliance with the State Environmental Quality Review
(SEQRA), Environmental Conservation Law, Article 8, and regulations
as required under § 150-92C of the Town Code for the proposed
rezoning shall be independent of that which is required in accordance
with an application to the State of New York for a mining permit under
the MLRL. The Town Board shall serve as lead agency under SEQRA with
respect to the application for rezoning. Notwithstanding any other
provisions of the Town Code to the contrary, including provisions
setting time limitations for the taking of actions, the Town Board
shall not be required to take any action with respect to an application
for the establishment of a natural products district if an application
is not complete; provided, however, that nothing in this subsection
shall be construed to require the Town to take action merely because
an application is complete. An application for rezoning is complete
upon the earlier of:
(a)
The date that the Town Board, as lead agency, determines that
a draft environmental impact statement (DEIS) shall be dispensed with
and the negative declaration is issued upon finding that the proposal
will not significantly affect the environment; or
(b)
The date that a DEIS has been filed and accepted by the lead
agency as satisfactory in scope and content.
(4)
An application for amendment, together with a metes and bounds description
of the parcels for which rezoning is sought, shall be submitted by
the applicant to the Town Clerk. The applicant shall furnish the Town
with a copy of the application for a mining permit which the applicant
plans to submit to DEC.
(5)
The Town Clerk shall transmit the application to the Town Board,
which shall determine whether or not it will entertain the application
for rezoning. The Board's decision not to entertain the request for
rezoning is not subject to the SEQRA process [6 NYCRR 617.3(d)]. In
the event that the Town Board determines that it will entertain the
application, it shall refer the application, environmental assessment
form and all other supporting documentation filed by the applicant
to the Planning Board for its recommendation as to the classification
of the action under SEQRA.
(6)
Upon receipt of the classification recommendation of the Planning Board, the Town Board shall conduct a coordinated review of the application for SEQRA purposes. After making a determination of significance, and after determining the application is complete [see § 150-67B(3)], the Town Board shall refer the application to the Planning Board in accordance with § 150-91 of this chapter.
(7)
Any applicant seeking to rezone an area to NP shall have the burden
of demonstrating to the satisfaction of the Town Board that the criteria
specified herein have been met. Prior to the Town incurring any extraordinary
costs necessary for its deliberations and chargeable to the applicant,
the Planning Board or the Town Board shall advise the applicant of
said costs and obtain the applicant's agreement to bear such costs.
In addition, the applicant shall procure and provide other data, such
as surveys and maps, which may be required. The applicant shall also
furnish the Planning Board with all information in his possession
which might affect its decision.
C.
Procedure. Section 150-92 of this chapter shall govern the procedure for review of the rezoning request. Section 150-67B(3) shall apply to determining the completeness of the application.
D.
Review criteria for rezoning.
(1)
The Planning Board, before making its recommendation, and the Town
Board, before making its determination, shall assess the effect of
the proposed rezoning on the general health, safety and welfare of
residents.
(2)
The Town's determination shall consider, but not be limited to, the
following:
(a)
Impact on local traffic.
(b)
Aesthetic and natural environment of the excavation area and
surrounding areas.
(c)
Impact upon groundwater; any residential or commercial water
supply; drainage; nearby wetlands; and nearby critical environmental
areas.
(d)
Impact on contiguous landowners.
(e)
The character and compatibility with surrounding land uses before,
during and after the proposed mining operations.
(f)
Proposed buffers, setbacks from adjoining landowners, hours
of operations and operational procedures to lessen dust, noise and
visual impact.
(3)
The Planning Board and the Town Board shall also consider whether
the proposed rezoning would result in a mining operation with:
(a)
Sand or gravel processing equipment within 1,000 feet of any
nonowner-operator residence, school, playground or public gathering
place.
(b)
Setbacks closer than 200 feet from road and property lines;
500 feet from occupied structures; 1,000 feet from existing schools,
playgrounds or public gathering places; and 500 feet from a designated
wetland or critical environmental area. An owner-occupied structure
within a natural products zoning district is exempt from the five-hundred-foot
setback.
E.
Reuse of the district. The Natural Products Zoning District is intended
to be the land use zoning classification for mining operations only
during the period of time when active mining is underway. After completion
of mining operations, including reclamation, or nonuse for a one-year
period, the district shall revert back to the preapplication land
use district.
F.
Reapplication for rezoning. If an application for rezoning of a parcel
of land to an NP district is denied, reapplication for the same parcel
will not be entertained for a one-year period from the date of disapproval.
A.
In the event that the DEC issues a mining permit for a parcel in a natural products district, the applicant will be required to obtain a special use permit from the Planning Board pursuant to Article VII of this chapter. The Planning Board may impose conditions on the special use permit relating to public thoroughfares controlled by the Town and routing of mineral transport vehicles on roads controlled by the Town. In addition, the Planning Board may impose conditions concerning setbacks from property boundaries and public thoroughfares, rights-of-way, natural and man-made barriers to restrict access, dust control and hours of operations, if those conditions have been imposed by the DEC in its permit.
B.
Ingress and egress. Ingress and egress to a mining operation shall
be on a state highway, wherever practical, unless the Town Board finds
that unique conditions favor allowing ingress and egress on a Town
or county road. Only a single point of vehicular access shall be provided
to each mining site.
A.
Upon receipt of a notice from DEC, pursuant to Environmental Conservation
Law § 23-2711, the Town Supervisor, as chief administrative
officer, shall schedule within two weeks a public hearing for the
purpose of soliciting input from Town residents, regarding:
B.
Prior to the public hearing, the Supervisor shall provide a copy
of the notice and accompanying documents to the Town Planning Board
and Conservation Advisory Council for their review and recommendations.
C.
Following the conclusion of the public hearing, and at least five
days prior to the expiration of the thirty-day comment period, the
Town Board, at either a regularly scheduled Town Board meeting or
special Board meeting convened for this purpose, shall review the
comments made at the public hearing as well as any comments and recommendations
by the Planning Board or Conservation Advisory Council and adopt the
Town's recommendations to DEC. The Town Board shall also determine
whether the proposed mine is in an area that has been zoned to natural
products. The Town Board, or its designee, shall prepare supporting
documentation justifying the particular recommendations.
D.
The Supervisor shall transmit the Town's determinations, together
with the supporting documentation and a statement as to whether or
not mining is prohibited in the location in question, so that they
are received by DEC within 30 days from the date that the Supervisor
received the original notice from DEC.
Any person who proposes the removal of more than 100 cubic yards
and fewer than 1,000 tons or 750 cubic yards of minerals from the
earth within 12 successive calendar months must obtain a special use
permit from the Planning Board, pursuant to the provisions set forth
herein.
A.
Standards. Before granting a special use permit, the Planning Board
shall determine that:
(1)
All lands to be covered by the permit are owned, leased, rented or
otherwise controlled by the applicant.
(2)
The proposed excavation, quarrying and/or associated activity will
not endanger the stability of adjacent structures nor constitute a
detriment to public health, safety, welfare or convenience by reason
of excessive dust, noise, traffic or other conditions before, during
or after extraction.
(3)
The extraction site will not substantially encircle any residential
or other use without the written consent of the owners and residents.
(4)
The operation will not adversely affect any wetland, watercourse
or residential, commercial or municipal water supply or sewage disposal
system.
(5)
The operation will not adversely affect any valuable environmental,
cultural or historic features in the area.
(6)
Screening may be required in such a manner as to screen all activities
from public view to the extent feasible.
(7)
No excavation or other mine-related activities will be conducted
within:
(8)
The slope of material in such topsoil, sand, gravel, clay and other
earth shall not exceed the normal angle of repose of such material.
(9)
No mining or other mine-related activities will be conducted on Sundays
or holidays, nor between the hours of 7:00 p.m. and 7:00 a.m. on Mondays
through Saturdays. Further restrictions may be placed on the permit.
(10)
Mining activities at the site are restricted to excavation and
removal of minerals from the site. Processing of minerals (i.e., washing,
screening or mixing with materials from off site, etc.) shall be prohibited.
(11)
Appropriate transportation facilities, including roads and bridges,
exist or can be economically provided to safely transport natural
products mined within the Town.
B.
Procedures for small-scale mines.
(1)
In addition to the application required by § 150-42 and fulfilling the requirements of Article VII of this chapter, the applicant shall submit with the application the following documents:
(a)
A mining plan, including a metes and bounds description of the
proposed area to be mined, and a plan for a phased reclamation, satisfactory
to the Planning Board, of the proposed extraction area. In no case
shall the mining plan and plan for reclamation be for a period in
excess of three years. In the event that an abandoned mine is activated
under this permit, reclamation of the entire affected area shall be
considered part of reclamation requirements.
(b)
A plan for safeguarding the public health, safety and welfare
of surrounding and nearby residents during extraction and related
activities. This plan shall be approved by the Planning Board prior
to issuance of a special use permit.
(2)
The Town shall bear no costs for outside consultant reviews deemed
necessary by the Town pertaining to the project or the permitting
process. Prior to the Town incurring any costs necessary for its deliberations
and chargeable to the applicant, the Planning Board shall advise the
applicant of said costs and obtain the applicant's agreement to bear
such costs.
(3)
The applicant shall furnish the Planning Board with all information
in his possession which might affect its decision. In addition, the
applicant shall be responsible for promptly providing the Planning
Board with any new information or circumstances since the filing date
of the application.
(4)
If approved, the special use permit shall be issued by the Planning
Board for a three-year period, subject to annual inspection by the
Planning Board or its designee and to revocation for a finding of
noncompliance with any condition of the permit.
(5)
Any permit, when issued, shall explicitly state all operating conditions
which are necessary to assure compliance with this section and applicable
Town and state laws, ordinances, regulations and operational procedures
designed to minimize physical and aesthetic damage to the environment.
(6)
Each extraction site shall be governed by an individual permit. If
an operating group conducts extraction operations at more than one
site in the Town of Poestenkill, its conduct at all sites shall be
considered in determining the provisions of each special permit and
may be grounds for denial or restriction of such permit.
A.
Permit renewals may be granted at the discretion of the Planning
Board if the activity is proceeding in accordance with the provisions
of the initial plan. No more than one permit renewal shall be granted.
The renewal shall be for a period of three years, subject to annual
inspection by the Planning Board or its designee.[1]
B.
All holders of permits shall advise the Planning Board of any change
of facts and conditions which might affect their ability to operate
under the permit.
C.
Immediately after any change of ownership of any extraction site
or of the persons or entities directly responsible for its operation,
the new owner or operator shall apply for a new permit, indicating
on the application any existing or anticipated changes from the data,
plans and/or conditions supporting or included in the previous permit.
D.
Each site shall be inspected for compliance by the Code Enforcement
Officer prior to any permit renewal. A written report of such inspection
and its findings shall be made to the Planning Board. Such inspection(s)
shall be financed by a fee system as established by the Town Board
pursuant to Local Law No. 1 of the Year 2003.[2]
[Amended 2-19-2003 by L.L. No. 1-2003]
E.
Each permit shall contain provisions which affect its suspension
in the event of a finding of noncompliance with any term or condition
of operation.
Before issuing a special use permit, the Planning Board must
find that the reclamation plan meets the following standards and requirements:
A.
Timetable. Reclamation is normally to take place after the removal
of 750 cubic yards or 1,000 tons of mineral, unless the Town Planning
Board determines that a different reclamation schedule is more appropriate.[1]
B.
Drainage and water resource protection. All final site drainage shall
be designed, sloped, revegetated or treated by other measures so that
drainage patterns, including volume and outflow points, will be the
same as before the mining occurred, unless an alteration of patterns
would improve drainage in the surrounding area. Measures must be specified
to prevent erosion and sedimentation of wetlands, watercourses and
ponds, and an erosion and sedimentation control plan recommended by
the federal Natural Resources Conservation Service (NRCS) must be
approved by the Planning Board. The pre-mining quality of any underlying
aquifer must be preserved.
C.
Slopes. No slope shall be left with a grade steeper that one foot
vertical on three feet horizontal for gravel or its normal repose
slope for other minerals.
D.
Reclamation material. All restoration material used in the final
grading of the site shall be free from refuse or toxic contaminants
and shall be compacted as much as is practical, such as by installation
in layers. Stumps, boulders and nontoxic debris generated by the mining
operation shall be removed from the site and disposed of or buried
and covered with a minimum of two feet of soil. All toxic debris and
waste, including petroleum products, shall be removed from the mining
site for proper disposal.
E.
Soil cover. Final soil depths and types shall be appropriate for
the expected reuse specified in the application. Subsoil and topsoil
shall be respread over the excavated area to a minimum depth of one
foot: six inches of topsoil and six inches of subsoil. If the original
soil depth was less than one foot, restoration shall be to a minimum
of the original depth. This restored soil shall be treated with lime
and fertilizer and seeded with a grass or legume mixture prescribed
by the federal Natural Resources Conservation Service.
F.
Topsoil preservation. All topsoil shall be stripped from the active
excavation area and stockpiled on site and seeded for use in accordance
with the reclamation plan. Such stockpiles shall be treated to minimize
the effects of erosion by wind or water upon public roads, streams
or adjacent property.
G.
Revegetation. Revegetation of the site to control dust and erosion
and to restore the natural character is required. The operator shall
maintain the vegetation for two growing seasons to ensure viability.
Standards and specifications for revegetation shall be in accordance
with recommendations of the NRCS-approved technical guides for actual
area seeding.
H.
Bonding for reclamation. The Town Planning Board shall require the
permit holder to post a bond in an amount at least sufficient to cover
the costs of the reclamation plan.
[Amended 2-19-2003 by L.L. No. 1-2003]
A.
As provided for by § 150-66A(2), the Code Enforcement Officer shall be authorized to issue a grading permit for the removal of not more than 100 cubic yards of fill in conjunction with an approved subdivision or site plan where a permit is not required pursuant to the Mined Land Reclamation Law. Separate permits for a single lot shall not total more than 100 cubic yards within any ten-year period; where more than 100 cubic yards are to be removed, a special use permit shall be required. No excavation of soil, rock or other natural products shall adversely affect natural drainage or the structural stability or safety of adjoining buildings or lands. Excavations shall not create objectionable dust or noise nor create any kind of noxious or injurious substance or cause a public hazard.
B.
The Code Enforcement Officer shall be authorized to issue a grading
permit for the deposit of 100 cubic yards or more of fill per acre
per year on a site when no other permit allowing or regulating such
deposit is required from the Town or any other governmental agency.
The grading permit may specify the types of fill allowed.
[Added 6-20-2013 by L.L.
No. 3-2013]
C.
No finished slope shall be created with holes or hills, or which
slopes down from any adjoining property steeper than one foot vertical
to two feet horizontal, and no fill or embankment shall be created
which slopes upward from any adjacent property line steeper than one
foot vertical to three feet horizontal, unless an adequate retaining
wall is constructed in accordance with plans prepared by a professional
engineer licensed to practice in New York State.
