Town of North Salem, NY Filling and Excavation of Land

Editor's Note: This local law also repealed former Ch. 89, Fill, Art. I, Regulation and Control of Delivery of Fill, adopted 3-23-1999 by L.L. No. 3-1999.

§ 89-1 Title.

This chapter shall be known as the "Land Excavation and Fill Law" of the Town of North Salem.

§ 89-2 Purpose and intent.

Purpose. The purpose of this chapter is prevent the importation of unsuitable fill and to ensure the proper placement and means of excavation and land filling through reasonable regulation so as not to be a detriment to the public's health, safety and welfare.

Intent. The intent of this chapter is to safeguard Town residents, protect public and private property, and prevent damage to the environment by guiding, regulating and controlling the design, operations and maintenance of any development or other activity that disturbs soil or other earth materials, or results in the movement, excavation and/or filling of lands within the Town of North Salem.

§ 89-3 Findings.

This chapter is based on the following:

Significant soil erosion may occur from areas undergoing development for certain uses including, but not limited to, the construction of dwelling units, commercial buildings, other nonresidential development, the building of roads and highways and the construction of recreational facilities.

The washing, blowing and deposition of eroded soil across and upon roadways can endanger the health and safety of users thereof by decreasing visibility and reducing traction of road vehicles.

Soil erosion necessitates the frequent and costly maintenance of catch basins and other stormwater management structures, including detention basins, retention basins, infiltration devices, drainage swales and other similar control measures.

Sediment from erosion clogs culverts, ditches, and swales, fills rivers, streams, lakes, ponds, reservoirs and freshwater wetlands, causing significant damage to water quality and aquatic organisms, populations and communities.

Sediment limits the use of water and watercourses for some beneficial purposes, promotes the growth of undesirable aquatic weeds, destroys fish and other desirable aquatic life, and is costly and difficult to remove.

Sediment reduces the channel capacity of watercourses and storage capacity of wetlands, increasing the likelihood of flooding.

Excavation and filling of land can create unstable slopes, thereby threatening the health, safety and welfare of residents.

Excavation and filling of land can increase the potential for rapid soil erosion and sedimentation of stormwater management structures and water related resources.

Stable slopes prevent soil erosion and dispersal impacts, aid in water absorption and retention, and provide a suitable environment for the growth of healthy plants.

§ 89-4 Word usage and definitions.

Word usage.

Unless otherwise listed below, the numbers, abbreviations, terms and words listed herein shall have the meanings of common usage as set forth in the latest edition of Webster's New Collegiate Dictionary. Terms of law shall have the meanings as set forth in the latest edition of Black's Law Dictionary.

Unless the context clearly indicates to the contrary, words used in the present tense include the future tense; words used in the singular number include the plural; words used in the plural number include the singular; the word "herein" means "in this chapter"; the word "requirements" means "this chapter"; and the words "this chapter" shall mean "this chapter included herein as enacted or subsequently amended."

CRITICAL ENVIRONMENTAL AREA

The "Town" is the Town of North Salem in the County of Westchester, State of New York; the "Town Board," "Planning Board" and "Building Inspector" are respectively the Town Board, Planning Board and Building Inspector of the Town.

Definitions. The definitions as set forth in Chapter 250, Zoning, shall prevail except the following terms shall have the specific meanings indicated below:

BREAST HEIGHT

The height measured 4.5 feet above the average ground surface elevation.

A specific geographic area designated by a state or local agency, having exceptional or unique environmental characteristics, pursuant to New York State Environmental Conservation Law.

EXCAVATION

See "land excavation."

FARMING OPERATION

Any operation on a parcel of land, not less than four acres, that is used for soil-dependent cultivation of agricultural crop production and/or the raising of livestock, poultry or dairy products, raising of fur-bearing animals, the keeping of horses and livery or boarding stables, as permitted under Chapter 250, Zoning. The definition for "farming operation" excludes dog kennels.

FIELD CHANGE

A minor change or adjustment due to field conditions.

FILL

Inert solid materials including soil (loam, sand and gravel), rock, stone, dredged sediments that comply with the New York State Department of Environmental Conservation (NYSDEC) restricted use soil cleanup objectives for the protection of public health. (NOTE: See NYSDEC, Regulation and Enforcement, Regulations, Chapter IV, Quality Services, Part 375: Environmental Remediation Programs, as may be amended from time to time; a copy of the restricted use soil cleanup objectives is also available at the North Salem Building Inspector's office.)

FILLING

To deposit or place fill.

GRADING

To alter or change the existing surface of land by such acts as land excavation and/or filling.

LAND EXCAVATION

To remove, extract, move or relocate rock, gravel, sand, soil, or other previously placed or natural deposits, including but not limited to ditching, leveling, smoothing, or otherwise modifying or reconfiguring the land surface and existing contour elevation.

PERSON

Includes but is not limited to an individual, a partnership, a joint venture, a corporation, an unincorporated association, a firm or any other form of entity, contractors, subcontractors or journeymen.

§ 89-5 Applicability.

Any person desiring to conduct a regulated activity as hereinafter defined shall first obtain a fill/excavation permit from the Planning Board as hereinafter provided, as well as a delivery of fill permit from the Building Inspector as may also be required. Activities are regulated or excluded from regulation as follows:

Regulated activities. The following activities except as excluded herein shall require a fill/excavation permit and/or delivery of fill permit subject to the regulations, standards and procedures of this chapter:

Excavation, grading or removal of topsoil, clay, sand, gravel, rock or other earth materials.

Dumping, filling or depositing of earth materials or fill of any kind.

Delivery of fill materials.

Excluded activities. The following activities are excluded from regulation under this chapter; provided such activity does not constitute a pollution or erosion hazard or interfere with proper drainage or adversely affect reasonable water use by others; provided such activity is conducted and completed in such manner as to cause no danger to the public health or safety, and no stagnant water, soil erosion, sedimentation, water pollution, excessive drainage runoff or flooding problems are caused; provided such activities conform with the standards and requirements set forth in Chapter 250, Zoning of the Code of the Town of North Salem; and provided any utilized fill material complies with the definition for "fill" as set forth in this chapter:

Activities excluded from fill/excavation permit only:

In connection with the grading (excavation and/or fill activities) of land or the construction and installation of roads, drainage and other improvements for which subdivision and/or site development plan have been granted by the Planning Board, and only in accordance with plans as approved by the Planning Board for same.

In connection with an approved wetland permit (including the disposition of excavated pond sediments within areas of a property outside the controlled area) in accordance with Chapter 107, Freshwater Wetlands, of the Code of the Town of North Salem, and only in accordance with plans as approved for same.

In connection with the construction, reconstruction, enlargement of a building or structure, including the simultaneous construction and installation of site improvements related thereto, for which an application for a building permit and/or certificate of occupancy shall have been approved by the Building Inspector, and only in accordance with plans accompanying such approved application or permit.

In connection with a farming operation as defined herein, provided that the operator shall file with the Building Inspector a written notice of intent to engage in such activity, stating the approximate acreage to be affected, the general location thereof, the use or uses to be made of the land and the methods to be employed.

In connection with site and/or landscaping improvements for which a building permit, site development plan and/or wetland permit are not required, where all of the following thresholds are met:

The cumulative amount of excavation and/or fill is less than 250 cubic yards per acre, not to exceed a total of 1,000 cubic yards.

The area of disturbance does not exceed 5,000 square feet, provided that the area of disturbance is promptly graded and reseeded or otherwise planted.

The area of disturbance does not occur within a required yard area as specified in Chapter 250, Zoning (§ 250-15, Bulk Table).

The proposed finished slope does not exceed 15%.

(f)

In connection with the repair or replacement of existing facilities, underground utilities (i.e., water, electric, cable service lines) and existing drainage pipes, resulting in no substantive change to the existing field conditions and topographic elevations of the impacted area.

(g)

In connection with remediation work performed in accordance with the most current protocols and regulations of the Westchester County Department of Health and/or New York State Health Department.

Activities excluded from fill/excavation permit and delivery of fill permit:

The requirements set forth in § 89-6D shall not apply to a landowner who, on an annual basis, has delivered to one specific residential property 250 cubic yards or less of fill, or 1,000 cubic yards or less of road base, trench backfill, subbase bedding, trench material and bedding, run-of-bank fill for septics, sand for concrete, bedding materials and dust prevention materials used for horse riding rinks and paddocks or other commonly used materials for construction, provided said fill complies with the definition for fill as set forth in this chapter.

§ 89-6 Application for fill/excavation permit.

Permit application. Any person proposing to conduct or cause to be conducted a regulated activity as defined in § 89-5A shall file an application for a Town of North Salem fill/excavation permit with the Planning Board in such form and number of copies as the Planning Board shall prescribe, executed by the property owner, together with the application fee, escrow fees as may be required, and showing the section, block and lot number of the parcel upon which the regulated activity is proposed.

Application submission requirements. An application for permit shall contain the following minimum information, unless a waiver is granted by the Planning Board in accordance with § 89-6C(4) of this chapter:

Project plans drawn to a scale of not less than one inch equals 50 feet and duly certified by a New York State licensed landscape architect, professional engineer, architect and/or surveyor, which plans shall include at minimum the following:

Existing conditions plan, based upon and including a copy of current property and land survey, showing existing site conditions of the entire subject parcel.

Proposed grading and drainage plan, including the following:

A site location map at an appropriate scale showing the parcel, surrounding parcels within 200 feet, named area streets and the surrounding zoning designations of the area shown.

Graphic scale and north arrow.

The name and address of the applicant and property owner (if different).

The name, address and telephone number of all plan preparers.

[5]

The section, block and lot number of the subject parcel.

[6]

Property owner name and address, and section, block and lot numbers of all contiguous parcels, including those located across abutting streets.

[7]

Existing and proposed buildings and structures such as drains, culverts, retaining walls, fences, wells, sewage disposal facilities and treatment fields.

[8]

Existing and proposed topography based on a two foot contour interval.

[9]

A table quantifying the amount of fill and the amount of excavation (cut) proposed, including quantification of cut and fill balancing, as well as an impact assessment associated with the proposed import and/or export and disposal of fill and/or excavated materials.

[10]

The location and identification of existing trees over six inches in diameter measured at breast height. Trees proposed to be removed, disturbed or otherwise protected shall be identified and detailed accordingly.

[11]

Existing and proposed drainage consistent with the standards and requirements set forth in Chapter 193 of the Code of the Town of North Salem.

[12]

Controlled Areas (wetlands, watercourses and one-hundred-foot buffer) as defined and regulated in Chapter 107 of the Code of the Town of North Salem on or adjacent to the premises.

[13]

Proposed construction vehicular access to the property, including details for maintaining stabilization of said entrance and the prevention of sediments leaving the site or being deposited on adjacent roadways.

Proposed erosion and sedimentation control plan consistent with the standards and requirements set forth in Chapter 193 of the Code of the Town of North Salem.

Other proposed plans and details as pertinent to the proposed regulated activity.

A narrative description of the proposed regulated activity indicating:

Location of subject property and area to be affected.

Environmental impact assessment and description of the existing site and topographic conditions to be disturbed or altered.

Intended purpose of the proposed activity or use and the applicant's interest in the subject property and area to be affected.

Considered alternatives to the proposed activity, and why the proposed regulated activity was chosen instead.

The mitigation measures proposed to avoid or reduce related impacts.

Such additional information as the Planning Board may deem necessary in order to evaluate the application and related potential impacts thereof.

Fill/excavation permit: Planning Board review procedures.

Planning Board fill/excavation permit review procedures. The Planning Board in reviewing an application for a fill/excavation permit shall proceed according to the following permit procedures:

Optional initial review. A request for a nonbinding initial review for the purpose of obtaining preliminary feedback and evaluating specific requests for waivers as may be permitted by § 89-6C(4) of this chapter may be submitted to the Planning Board prior to the submission of a complete fill/excavation permit application. Initial application review may involve a site visit by the Planning Board and/or its designees. Before preparing or submitting any application to conduct or cause to be conducted a regulated activity as defined herein, an applicant should become familiar with the regulations, standards and requirements contained herein.

Review of application submission materials. The Planning Board shall review the scope of the proposed regulated activity and may request the applicant to submit such additional information in support of the minimum required application submission materials as set forth in § 89-6B as it deems necessary to determine compliance with this chapter. The Planning Board may consult with the Town planning, engineering or other qualified consultant as deemed appropriate.

Conservation Advisory Council referral. The Planning Board shall request the advice of the Conservation Advisory Council, and the Council shall furnish a written report of its findings and comments within 30 days after said request is received by the Conservation Advisory Council.

The Planning Board and Conservation Advisory Council and their authorized representatives may enter upon the application property for the purposes of evaluating a proposed application.

Notice and public hearing. The following notice and public hearing requirements shall be applicable to a fill/excavation permit Application:

[Amended 2-25-2020 by L.L. No. 1-2021]

Within 45 days after receipt of a complete application which meets the requirements set forth in § 89-6B of this chapter, the Planning Board shall hold a duly noticed public hearing.

The Planning Board shall provide the applicant with a notice of public hearing at least 13 days prior to the public hearing, which the applicant shall publish at its own expense in the official newspaper of the Town of North Salem at least five days prior to the public hearing.

Notice form and content. The public hearing notice shall be on forms approved by the Planning Board and shall include the name of the applicant, the location of the property and a brief description of the regulated activity, and shall also specify the date, time and place of the public hearing to be held by the Planning Board.

Notice circulation. Said notice shall be mailed by the applicant, certified mail return receipt requested, at least 10 days prior to the public hearing to all owners of property in the Town within 500 feet of the application property, which owners and their addresses shall be as indicated in the current Town Tax Assessor's records.

[5]

Certification. Prior to, or at the time of, the public hearing, the applicant shall provide the Planning Board a list of the owners of all lots to whom such notice was mailed and either an affidavit that the delivery or mailing was completed as required herein or copies of all mailing receipts.

[6]

A copy of the notice of public hearing shall be transmitted to the Town Clerk, Building Inspector and Conservation Advisory Council.

[7]

All such applications, and the accompanying maps and documents, shall be open for public inspection at the office of the Planning Board.

(f)

Permit determination.

Within 65 days of receipt of a complete application or from the close of the public hearing, whichever is later, the Planning Board shall determine if the proposed regulated activity conforms to standards and conditions for approval set forth in § 89-6C(5) and shall approve or deny the application.

Conditions. The Planning Board may impose requirements for the modification of a proposed regulated activity and require conditions or limitations with respect to the conduct of such activity consistent with the declaration of policy contained in § 89-6C(5) of this chapter.

The Planning Board shall file a copy of its written permit determination with the Town Clerk, Building Inspector and Conservation Advisory Council. Said permit determination shall specify the basis on which an application has been approved or denied and, in the case of the approval of an application, shall set forth any modifications, conditions or limitations which shall be imposed thereon.

(g)

The applicant and the Planning Board may, by mutual consent, extend the time periods set forth in this subsection.

Permit expiration.

Approval of a fill/excavation permit shall expire unless such conditions have been met and final plans as may be required have been submitted for endorsement by the Planning Board Chair and Secretary within 180 days of the date of approval. Failure to timely submit final plans shall result in expiration of the approval, thereby making it null and void.

Approval shall expire unless a certificate of compliance relating thereto has been obtained from the Building Inspector within a time period not to exceed two years from the date of said approval as determined by the Planning Board.

Extension of permit approval time.

An extension of the permit approval time period may be granted by the Planning Board upon a showing of reasonable cause and/or upon determination that the public interest and environment will be best served by not interrupting the activity or use, if commenced.

A request for an extension of permit approval shall be submitted in writing a minimum of 45 days prior to the expiration date for which an extension is requested and shall state at minimum the following:

The reasons and circumstances for the requested extension.

The reasons why the authorized activity or use has not been initiated or completed within the time frame allowed.

Any changes in the facts or circumstances involved with or affecting the regulated resource area affected by the authorized activity or use, or the property for which the expiring permit was issued.

The status of the authorized activity or use which is the subject of the expiring permit, including a description of the extent of work completed at the time of the extension request and the proposed schedule for completing the remaining authorized work.

A maximum of two extensions, not exceeding 90 days each, may be granted provided it is determined that the extension is warranted by the circumstances involved.

The Building Inspector is not authorized to extend the time periods related to a permit review or expiration for a fill/excavation permit issued by the Planning Board, except as may be expressly authorized in a Planning Board resolution of approval.

The Planning Board in consideration of a request for an extension may require a public hearing consistent with the standards for public hearing as set forth elsewhere in this chapter.

(f)

The granting of an extension may include additional conditions or limitations as deemed appropriate or necessary.

(4)

Waivers.

The Planning Board may, upon written request by an applicant, waive or modify the required application materials to address the specific instances of the application under consideration. Any such waiver shall not be automatic, but rather shall only be granted if such required application materials are deemed not applicable to the application under consideration and are not requisite in the interest of public health, safety and general welfare.

The Planning Board may, upon written request by an applicant, waive the required public hearing, provided all of the following minimum conditions are met:

Disturbance associated with the regulated activity will impact an area of less than one acre;

The activity will not disturb or impact any areas of slopes of 15% or greater; and

The activity will not occur within any minimum required front, side or rear yard area, as set forth in Chapter 250 of the Code of the Town of North Salem.

The Planning Board may modify the standards and conditions for approval set forth in § 89-6C(5) of this chapter, provided such alteration is deemed necessary to maintain the purpose and intent of this chapter.

(5)

Standards and conditions for approval.

The Planning Board may grant a fill/excavation permit if it shall find that the approved activity will not result in the creation of any sharp declivities, pits or depressions, soil erosion or fertility problems, depressed land values or create any drainage or sewerage problems or other conditions which would impair the use of the property in accordance with the provisions of Chapter 250, Zoning, of the Code of the Town of North Salem, and that such activity will be in harmony with the general purpose and intent of Chapter 250, Zoning, and this chapter, and if the Planning Board further finds that the permit to be granted is capable of being completed within a reasonable time.

In approving a fill/excavation permit, the Planning Board shall ensure the following:

That the premises shall be graded, excavated and/or filled in conformity with a proposed contour plan.

When a change in grade is part of the permit, post development slopes shall not exceed 15% to the horizontal or such lesser slope that the Planning Board may specify as necessary for the public health or safety, soil stability or for the reasonable use of the property after completion of the excavation. The Planning Board may, at its discretion, permit a finished slope to exceed 15% where appropriate.

That no fixed machinery shall be erected or maintained in connection with the activity, and that no construction related building shall be erected on the premises except for temporary shelters for machinery and field offices.

That there shall be no excavation or removal and/or filling within 50 feet of any street or property line, except that where the property to be impacted is considered above street grade at the street line, removal and/or filling may take place at a lesser distance from the street line if approved by the Planning Board.

[5]

That after excavation or removal and/or filling, the premises shall be cleared of debris within the time as required by the Planning Board.

[6]

That the top layer of arable soil for a depth of six inches shall be appropriately set aside, retained and protected on the premises and shall be respread over the premises, and that a suitable ground cover shall be planted and grown to an erosion-resistant condition upon the completion of the excavation or removal and/or filling in accordance with the approved contour lines, and that such work shall be completed within the time period as required by the Planning Board. The application of mulch and, possibly, jute netting or similar material may be required if the topsoil is deposited in the drier summer months when germination of stabilizing grass or other ground cover seed is difficult.

[7]

That, if required by the Planning Board, the area to be impacted or a portion thereof shall be enclosed within a fence of such type, height and location as the Planning Board may specify.

[8]

That the Planning Board may establish a schedule to be followed that includes:

[a]

Limitations on the days of the week or hours of the day during which any work may be performed on the premises.

[b]

Limitations on the delivery of fill or removal of excavated materials off-site. In no event shall fill or excavated materials be delivered to a site prior to 7:30 a.m. or after 5:00 p.m., nor at any time on Sundays or legal holidays.

[c]

Limitations as to the size and type of machinery to be used on the premises.

[d]

The place and manner of disposal of excavated and/or removed tree/brush material.

[e]

Requirements as to the control of dust, noise and lighting, if permitted, so as to prevent results injurious or offensive to the general public.

[9]

That the Planning Board may require the applicant to submit periodic reports, prepared by and bearing the seal of a land surveyor or professional engineer licensed to practice in the State of New York, showing the status and progress of the approved activity, and may require the applicant to pay to the Town an inspection fee in an amount deemed necessary by the Planning Board to defray the cost of inspection of the operation.

[10]

That the Planning Board shall determine whether the proposed excavation, grading, removal of topsoil, clay, sand, gravel, rock or other earth materials, dumping, filling or depositing of earth materials is located in an area characterized by a critical environmental area or other environmental conditions, and whether the proposed activity would be appropriate in light of the site and/or environmental conditions.

[11]

That such excavation will not result in the creation of any sharp declivities, pits or depressions, soil erosion or fertility problems, depressed land values or create any drainage or sewerage problems or other conditions which would impair the use of the property in accordance with the Chapter 250, Zoning, of the Code of the Town of North Salem. In addition, excavation, grading, removal of topsoil, clay, sand, gravel, rock or other earth materials or dumping, filling or depositing of earth materials or fill of any kind shall not be permitted within the drip line of trees located immediately adjacent to the proposed area of disturbance.

[12]

That such activities will be in harmony with the general purposes and intent of this chapter.

[13]

That approval shall comply with the permitting requirements, standards and specifications of the Town's regulations for stormwater management and erosion and sediment control (Chapter 193, the Stormwater Law of the Code of the Town of North Salem).

[14]

That the removal and/or impact to existing trees will be necessary and minimal. Existing trees may be important from an historic standpoint as well as for their more pronounced shade, screening, soil stabilization, habitat and fruit and seed production benefits.

The Planning Board may require an applicant to furnish a bond or other security to guarantee completion and/or maintenance of approved regulated activities, subject to the form and manner of execution as approved by the Town Attorney and Town Board prior to action by the Building Inspector.

Mitigation measures. An applicant may be required to prepare and implement a mitigation plan to offset the impacts of the proposed regulated activities. Acceptable mitigation must be provided to minimize impacts to the maximum extent practicable, particularly in regard to impacts on slopes exceeding 15% or greater.

(6)

Permit implementation and compliance inspections by Building Inspector.

The Building Inspector shall administer, enforce and verify compliance with all fill/excavation permits according to the resolution of approval as issued by the Planning Board.

Field changes.

During the implementation of a fill/excavation permit, the Building Inspector may allow a field change due to unexpected site conditions which otherwise prevent or limit the implementation of the fill/excavation permit as approved by the Planning Board, provided said field change is minor in scope and intensity, and will not substantively alter the intent, design, safety or mitigation functions of the aspect to be changed.

All requests for a field change shall be submitted to the Building Inspector in writing, with a copy to the Planning Board, indicating the substance of said requested field change and how said change is minor in scope and intensity, and consistent with the approved fill/excavation permit.

The Building Inspector shall file a copy of the approved field change, detailing the scope and substance of said field change, with the Planning Board within five days of said approval.

Certificate of compliance. Upon the completion of all authorized work conducted pursuant to an authorized fill/excavation permit, the permit holder shall request in writing to the Building Inspector for a final inspection thereof.

An as-built plan of completed work, which plan shall be prepared and certified complete by a New York State licensed surveyor, landscape architect and/or professional engineer, may be required as appropriate to determine compliance and/or satisfaction with any conditions of a granted permit.

If all authorized work is complete in accordance with the issued permit and the provisions of this chapter, then a certificate of compliance shall be issued by the Building Inspector.

Regulation and control of delivery of fill. On all lands in the Town of North Salem in which fill is delivered, the landowner shall prior to said delivery file an application for a fill delivery permit from the Building Department in such form and number of copies as the Building Department shall prescribe, executed by the property owner, together with the required application fee and showing the section, block and lot number of the parcel upon which the fill is to be delivered. Said application shall conform to the following:

A delivery of fill permit shall be required where applicable in addition and subsequent to a fill/excavation permit as required herein. It shall be the landowner's responsibility to evidence receipt of said fill/excavation permit to the Building Inspector. The delivery of fill shall be consistent with and in compliance with all conditions of approval as may be required pursuant to a duly issued fill/excavation permit.

Signed manifest required for fill.

For each truck delivering fill to a site, there shall be a signed manifest provided to the landowner by the person and/or company delivering the fill, or the supplier of the fill, stating the date of delivery, the site of origin of the fill (i.e., original location of fill), the type of fill and a representation that the fill complies with the definition for "fill" as set forth in this chapter.

The manifest shall be provided to the Building Department by the landowner on a weekly basis or whenever requested by the Building Department on a more frequent basis.

Independent inspector.

At the discretion of the Building Department, the landowner shall hire an independent inspector, who shall either be a duly licensed engineer, soil scientist or representative of a certified testing laboratory, and approved by the Building Department, who shall independently provide the Building Department with a certification that the fill delivered is in compliance with the requirements of this chapter and complies with the definition of fill as set forth in this chapter.

Said certification shall be provided to the Building Department on a weekly basis or whenever requested by the Building Department on a more frequent basis.

This subsection shall not be applicable for projects where fill quantities will not exceed 1,000 cubic yards or where the fill material consists solely of road base, trench backfill, subbase bedding, trench material and bedding, run-of-bank fill for septics, sand for concrete or bedding materials and dust prevention materials used for horse-riding rinks and paddocks or other commonly used materials for construction, provided said fill complies with the definition of "fill" as set forth in this chapter.

(4)

General standards.

If in the discretion of the Building Department testing or monitoring of imported fill is required, the owner of said land shall be required to pay such sums to the Town of North Salem as are reasonable for such purposes.

For all projects where deemed necessary by the Building Inspector, the owner of said land shall be required to post a surety bond, letter of credit or cash with the Town Clerk, in a form acceptable to the Town Attorney, in an amount to be fixed by the Building Department prior to issuance of said permit, reasonably sufficient to remediate the site under situations where contaminated or nonexempt material is delivered to the site, to remove and dispose of all such material and to repair roadways damaged by truck traffic delivering fill to the site. Said surety bond, letter of credit or cash shall be released to the landowner by the Town Board upon receiving a written recommendation from the Building Inspector to do so.

A landowner shall provide to the Building Inspector proof of liability insurance adequate to cover the intended work pursuant to the terms of the fill delivery permit with combined single-limit, general comprehensive coverage and with limits not less than $1,000,000. The Town of North Salem shall be named as an additional insured on the owner's policy. The owner shall, by a separate instrument, agree to indemnify and hold harmless the Town of North Salem from any claims arising out of the intended activity.

All applications and representations shall be verified under oath.

(5)

Schedule of delivery. No delivery of fill shall be made except in accordance with an approved permit schedule. In no event shall fill be delivered to a site prior to 7:30 a.m. or after 5:00 p.m., nor at any time on Sundays or legal holidays.

(6)

Assessment of costs.

Authority to remove and restore. In the event that the owner, occupant or person in control of such site shall fail to comply with this chapter, the Town shall have the authority, as provided for herein, to enter onto such land and remove such noncomplying fill and restore the land to an appropriate and safe state and charge the cost and expense of such action against the owner and establish a lien against the land in the manner herein provided.

Town Board action. Notwithstanding anything stated in this chapter, any owner of land in the Town shall be required to remove the noncomplying fill which exists upon his land and restore the land to an appropriate and safe state when directed to do so by resolution of the Town Board, pursuant to the authority provided under Town Law § 64, Subdivision 5-a.

Notice to be served. Whenever the Town Board shall adopt a resolution requiring the owners of land to remove the noncomplying fill which exists thereon and restore the land to an appropriate and a safe state, the Town Board shall specify the time within which such work shall be completed. Such notice, which shall be sent to the owner by certified mail, return receipt requested, shall set forth, with reasonable certainty, the location at which the condition exists, the material to be removed and the requirement that appropriate restoration measures must be taken. Giving due consideration to the material and the location thereof, the Town shall give the owners no more than 30 days from the date of the mailing of the notice during which actual removal work on such land shall be commenced and no more than 90 days from the date of the mailing of the notice during which removal work and restoration of the land shall be completed. Notice of the adoption of a resolution requiring the work shall be served upon the owners of the land by certified mail, addressed to either the owners at the address of the land or the last known address of said owners. In removing the noncomplying fill and restoring the land to an appropriate and safe state, the owners shall be required to comply with all laws, rules, regulations, orders and ordinances.

Failure to comply. Whenever any notice referred to in this subsection has been mailed, as required, and the owner shall neglect or fail to comply with any of the time periods provided herein, the Town Board shall declare the owner's surety bond to be in default and authorize the Town Attorney to call the proceeds of said bond.

Manner of assessment of cost. In any case where it shall be necessary for the Town Board to have the work performed due to the owner's failure to comply with the Town Board's resolution, the Town shall be reimbursed for the cost of the work performed or the services rendered (including, without limitation, the cost of professionals employed by the Town) at its direction, from the proceeds of the surety bond, or if said bond is insufficient for said purpose or the Town fails to collect said proceeds for any reason, then by assessment or levy upon the lots or parcels of land where such work was performed or such services rendered. All costs actually incurred by the Town upon each lot or parcel and the charge therefor shall be assessed and collected in the same manner and in the same time as other ad valorem Town charges.

(7)

Fill delivery permit renewal. A fill delivery permit shall be issued on a six-month basis only, and renewals shall be made as if the application was brought anew.

§ 89-7 Administration and enforcement.

Building Inspector administration and enforcement.

This chapter shall be administered and enforced by the Building Inspector.

The Building Inspector may enter upon the application property for the purpose of inspection to determine compliance with this chapter, compliance with a Planning Board issued fill/excavation permit, compliance with the standards and requirements of the regulation and control of delivery of fill as set forth in § 89-6D of this chapter, and for the purpose of undertaking any investigation, examination, survey or other activity necessary for the purposes of this chapter.

The Building Inspector shall keep records of all identifiable complaints of any offense of this chapter and all notices of offenses served by the Building Inspector and the action taken consequent thereon. The Building Inspector shall file with the North Salem Town Clerk a copy of each order or decision rendered by the Building Inspector. The Town Clerk shall keep records of all applications and permits.

Permit suspension and revocation. Any permit issued pursuant to the provisions of this chapter may be revoked by the Planning Board after notice as issued by the Building Inspector, in writing, and a hearing for noncompliance of any conditions of the resolution of approval for the regulated activity or the doing of any act constituting or creating a nuisance or endangering the life or property of another.

Notice. The notice shall describe the offense charged and may either be delivered personally or mailed postage prepaid to the address appearing on the application.

Suspension. Any permit granted pursuant to this chapter may be suspended for cause by the Building Inspector for a period not exceeding five days without a hearing. All work under any permit shall be suspended following notice of a hearing to revoke as provided for in this chapter.

Offenses. Any person who shall violate any order of the Building Inspector or conditions of a Planning Board resolution of approval, issued under this chapter, shall be deemed to have committed an offense of this chapter.

Penalties for offenses.

Any person committing an offense against any provision of this chapter shall, upon conviction thereof, be guilty of a misdemeanor punishable by a fine not to exceed $1,000 for an individual and $5,000 for a corporation per offense or by imprisonment for a period not to exceed one year, or both. The continuation of an offense against the provisions of this chapter shall constitute, for each day the offense is continued, a separate and distinct offense hereunder.

In addition to any other penalty authorized by this chapter, any person, partnership or corporation convicted of an offense any of the provisions of this chapter shall be required to restore the site to the condition existing prior to commission of the offense to the extent possible or as deemed appropriate by the Planning Board.

In addition to the above-provided penalties, the Town of North Salem may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or to restrain by injunction a violation of any provision of this chapter or the terms and conditions of any permit granted hereunder.

§ 89-8 Adoption of procedures and amendments.

Rules and procedures. The Building Inspector and/or Planning Board may promulgate rules and establish procedures for the administration of this chapter, including the submission of applications.

Amendments.

Referral to Planning Board. This chapter or any part thereof may be amended, supplemented or repealed from time to time by the Town Board, on its own motion or upon recommendation by the Planning Board or by petition. Prior to a public hearing, every such proposed amendment shall be referred by the Town Board to the Town Planning Board for a report, unless the proposed amendment was initiated by the Town Planning Board. The Town Board shall not take action on any such amendment without such report from the Town Planning Board unless the Planning Board fails for any reason to render such report within 60 days following the date of such referral, unless an extension of time is agreed upon by the Town Board.

Public hearing, notice of hearing. The Town Board shall fix the time and place of a public hearing on the proposed amendment and cause notice thereof in the official newspaper of the Town of North Salem at least 15 business days prior to the public hearing. The cost of the publication of any notice required for such hearing originating from a petition by an applicant shall be at the cost and expense of the applicant.

§ 89-9 Fees.

Fees shall be in accordance with the Standard Schedule of Fees for the Town of North Salem.[1]