[HISTORY: Adopted by the North Hempstead Town Board 2-13-1973. Amendments noted where applicable.]
It is hereby declared to be the policy of the Town of North Hempstead to preserve and, where necessary, to reestablish an amenable environment by controlling excavations and by providing adequate standards for the restoration of lands disrupted by earth removal operations. By this ordinance the Town Board seeks to promote the following objectives:
To prevent any and all excavations which create pits, hollows or holes in the earth thereby leaving it in a hazardous state and a threat to public health and safety.
To protect the environment by limiting excavations and earth-moving operations which disrupt natural conditions and to provide for proper restoration of lands already excavated through the use of grading and stabilization techniques designed to restore the land to an amenable and usable state.
To prevent pollution of the groundwaters, streams and harbors by prohibiting excavations into the water table and the silting of the harbor bottoms or streams.
To prevent unusual blight by limiting excavations, providing for systematic and orderly rehabilitation and promoting natural restorative processes.
To promote the orderly and prudent use of land by prohibiting any earth removal activities or practices which will destroy the reuse potential of any area which is excavated.
To protect the peaceful enjoyment of surrounding properties by diminishing or prohibiting any and all adverse influences which may be exerted by reason of an uncontrolled first removal operation.
As used in this ordinance, the following terms shall have the meanings hereinafter designated:
- BANK EXCAVATION
- Any excavation, other than a pit excavation, involving the removal of more than one thousand (1,000) cubic feet of earth, including an excavation not carried below the grade of the street, road or highway upon which the property fronts.
- Includes sand, clay, gravel, mud, bog and rock, but not topsoil.
- The removal of more than seventy-five (75) cubic feet of earth from the ground in a vertical dimension of more than three (3) feet for any purpose other than the improvement of land for permitted uses not otherwise regulated by this ordinance, or the purposes described by § 45-9 hereof.
- PIT EXCAVATION
- Any excavation involving the removal of more than one thousand (1,000) cubic feet of earth leaving a hole or depression below the grade of the surrounding land.
- SAFE ANGLE OF REPOSE
- The final angle of a slope as determined by combining the natural angle of repose of the material of the slope with a planting of vegetation having a proper root growth to protect such slope.
Before any excavation is commenced for any purpose other than those excepted in § 45-9 of this ordinance and topsoil, earth, sand, gravel, rock or other substance is removed from the ground, the owner, lessee, trustee, occupant, agent or any applicant in connection with the premises shall obtain a written permit therefor from the Commissioner of Public Works of the Town of North Hempstead subject to the approval of the Town Board. For that purpose, such applicant shall file with the Commissioner of Public Works of the Town of North Hempstead a verified application for such permit, in triplicate, containing:
Vertical aerial photograph, enlarged to a scale of at least one (1) inch equals two hundred (200) feet, from original photography flown at a negative scale no smaller than one (1) inch equals one thousand (1,000) feet, and certified as flown within one (1) year prior to date of application. The vertical aerial photograph shall cover all land requested in the permit application; all contiguous land five hundred (500) feet of which is or has been used by the owner or lease-holder applicant for sand and gravel extraction, processing storage or other permitted use; all lands and waters within one-half (1/2) mile of proposed planned mining area; and all public or private roads which are providing or may provide access to the property. The boundaries of these items shall be delineated using colored overlays.
Identification plat, prepared by a surveyor licensed by the State of New York, at a scale of one (1) inch equals one hundred (100) feet. This plat shall show:
Boundary of the entire planned mining area by courses and distances, or plotted deed description.
Site topography and natural features, including location of watercourses within the planned mining area.
Proposed locations of transportation access to the proposed operation by land and water.
A statement prepared by a geologist indicating:
The average thickness of overburden within the area of proposed operations.
The quality of material to be excavated.
The elevation of the water table throughout the planned mining area for which permit is sought, such elevations to be taken at sufficient intervals selected by the geologist to determine the proximity of the water table and the direction of flow in the aquifer within the proposed area to be excavated.
Sectional map at a scale of one (1) inch equals two hundred (200) feet covering the area within one (1) mile of the boundaries of the land included in the permit application, showing existing classification of all land and water appearing on the map as shown in the Official Zoning Map, and all roads, streets, alleys, parks, beaches and bays and other public or governmental areas in public ownership or on public rights-of-way, or proposed on master plans of local and regional planning agencies, and all railroad rights-of-way within the area covered by the map, and the names thereof, and prepared, signed and sealed by an engineer or surveyor licensed by State of New York as to property lines.
Operations plan for operation of the sand and gravel deposit, to be presented on a transparent overlay at the same scale as the vertical aerial photograph and delineating:
Area of active excavation.
Area proposed for excavation.
Area of active settling ponds and washing plant facilities.
Area proposed for settling ponds and washing facilities.
Area of existing treatment facilities and sand and gravel storage.
Area proposed for treatment facilities and sand and gravel storage.
Area of production facilities for resource-related industry.
Area proposed for production facilities for resource-related industry.
Location of existing and proposed spoil areas and plans for final disposition of spoil.
The plan shall include the elevations of all abutting properties to the extent necessary to indicate the existing drainage condition where the same affects the subject property.
A duly acknowledged consent in writing of the owner of the premises and mortgagee, if any, including his or their addresses.
Receipted tax bills or a certificate from the Receiver of Taxes of the Town of North Hempstead and the County Treasurer of Nassau County showing payment of all taxes, assessments and a sworn statement that there are no other outstanding obligations to date against the property described in the application.
A certificate of the Commissioner of Public Works of the municipalities whose highways abut the site of operation to the effect that the proposed excavation shown on the plan will not endanger such highways.
A certificate from the Commissioner of Agriculture and Markets of the State of New York, or his duly appointed agent or representative, stating any topsoil to be taken in the area described in the application is apparently free of golden nematode of potato.
To provide the basis for an orderly continuing rehabilitation of all land permitted to be excavated for its resources, a rehabilitation plan shall be filed annually with these objectives:
The plan for rehabilitation shall be submitted by the applicant in three (3) parts: a general plan as an overlay for the vertical aerial photograph, a rehabilitation contour plat and a description of rehabilitation methods and materials proposed for renewal of topsoil and replanting.
A general plan for rehabilitation shall be presented on a transparent overlay at the same scale as the vertical aerial showing:
General area of completely rehabilitated land.
General area of rehabilitation under way.
General area currently used for topsoil and overburden storage.
General area proposed for rehabilitation during period of special permit.
General area proposed for topsoil and overburden storage.
The acreage for each item shown on the overlay shall be indicated on plan.
A rehabilitation contour plat shall be prepared on the same base as the identification plat required above to indicate the general grades and slopes to which excavated areas are to be backfilled.
A description of the methods and materials proposed for rehabilitation of topsoil to the required fertility and the amount and type of planting shall be filed as part of the rehabilitation plan, subject to approval of the county agricultural agent.
An estimate prepared by a duly licensed engineer or land surveyor of the State of New York of the total number of cubic yards of material available on the site of operations for removal, together with an estimate from a similarly qualified engineer of the total number of cubic yards of material proposed to be removed from the property during the term of the license applied for.
Before a permit will be issued, the rehabilitation plan must be filed and approved by the Commissioner of Public Works of the Town of North Hempstead.
Operating standards for sand bank and pit excavations shall be as follows:
No pit excavations shall be made unless provisions for the prevention of any accumulations of water are made, the method of planning of such prevention to be approved by the Commissioner of Public Works of the Town of North Hempstead. No such excavation shall be carried below the grade of the public roads that provide access to the land being excavated.
All pit and bank excavations shall be so conducted and maintained to assure safe angles of repose for all slopes not supported by retaining walls. Such angles of repose shall in no event be less than two (2) horizontal feet for each vertical foot.
No pit or bank excavation shall be made within fifty (50) feet of any property line except where such property line abuts another property being excavated pursuant to a permit issued in compliance with this ordinance. Within the fifty-foot area a berm shall be established between the property line and the top of the slope, which berm shall have a minimum slope of one (1) inch per foot from the top of the slope downward to the property line. Where the existing topography is such that a fifty-foot berm area has not heretofore been established and maintained, the plan required under § 45-4 herein shall indicate the berm area available, the drainage to be provided and the proposed method of protecting all slope areas.
The entire perimeter of any mining operation where adjacent slopes exceed twenty-five (25) feet in length shall be surrounded by chain-link or similar fencing no less than seven (7) feet high, until such time as conditions required in § 45-4 of this ordinance have been completed and approved by the Commissioner of Public Works of the Town of North Hempstead.
Dust-down or a similar dust layer shall be spread on access roads and other traveled areas used in connection with every pit or bank excavation where required to protect the public and surrounding area against windblown sand and dust.
No removal of earth from the ground shall be so made as to undermine, weaken or deprive of support other lands in the vicinity or to substantially obstruct, impede or change the course of or the natural movement of flow of the water in, or change the natural shoreline or high-water line, or otherwise adversely affect any public waterway or public body of water or any waterway or body of water which is used as a part of any public drainage system.
No removal of earth from the ground shall be made so as to expose to possible pollution, by salt water intrusion or otherwise, any underground water used as a public water supply.
No excavation shall be made below five (5) feet above the maximum groundwater level at the site.
The Commissioner of Public Works of the Town of North Hempstead may deny any application for a permit if he shall find that the proposed excavation will violate any of the provisions of this section, and may revoke or suspend any permit issued hereunder if he shall find that the removal of earth thereunder violates any of such provisions.
All structures within a planned mining area shall be maintained so as to assure that they will not fall into disrepair, or will not become dilapidated and will conform with all applicable local codes. A schedule of maintenance, subject to municipal approval, shall be submitted on January 1 of each year indicating the maintenance to be undertaken during that year. Failure to submit or to conform to such schedule shall be grounds for the suspension of the mining permit. All structures that have not been used or maintained for a period of one (1) year shall be removed by the permit holder from the planned mining area.
All equipment, structures and foundations, except fences, shall be dismantled and removed by the mining site operator not later than six (6) months after termination of mining operations or expiration of the permit. Fencing shall be removed at the expense of the operator only upon the Town Board's request.
All equipment used in a planned mining area shall be maintained in good repair and operated in such a manner as to minimize noise, vibration, smoke and dust.
Operating hours for excavating, mining or processing shall be in conformity with the requirements of the Building Zone Ordinance and the Anti-Noise Ordinance of the Town of North Hempstead, except in case of a public emergency or whenever repairs to equipment are required.
No waste products or process residues or any other material from a planned mining area shall be disposed of in any stream, harbor, bay or other natural drainage system. Dumping and storage shall be prohibited pursuant to the provisions of Article XX, Section 20.41, of the Building Zone Ordinance of the Town of North Hempstead.
Safety regulations within the site and in surrounding areas are to be strictly adhered to.
To prevent spillage from loaded vehicles and windblown air pollution, vehicle loads of mined material on the site shall be so operated as to comply with § 45-5A(11) of this ordinance.
All operations shall be conducted in a safe manner with respect to hazards to persons, physical damage to adjacent land or improvements, and damage to any street by reason of slides, sinking or collapse.
Where topsoil is removed, sufficient arable soil shall be set aside for respreading over the excavated area in accordance with the rehabilitation plan. Such overburden stockpiles shall be treated to minimize the effects of erosion by wind or water upon public roads, streams or adjacent land uses and shall not be sold or removed from the property.
All overburden shall be stockpiled in windrows or concentrated piles and stabilized in an acceptable manner so that it does not become a source of dust.
The inactive banks of all excavations not subject to rehabilitation shall be maintained at a slope not greater than one and one-half (1 1/2) feet horizontal to one (1) foot vertical.
All existing trees and ground covers contiguous to public road frontage and residential developments shall be preserved, maintained and supplemented by selective cutting, transplanting wherever practicable and the addition of ground cover for the remaining depth of the area required under § 45-5A(3) of this ordinance. Where no natural screening exists, it shall be necessary to install perimeter screening consisting of a staggered row of evergreen shrubs five (5) to six (6) feet high, planted ten (10) feet on centers.
Rehabilitation shall be a continuing operation, subject to field and aerial review by the Commissioner of Public Works of the Town of North Hempstead. Grading, topsoil replacement and replanting of the area designated for rehabilitation shall continue during the permit period.
All banks shall be left in accordance with topography established in restoration plans, with no slope greater than two (2) feet horizontal to one (1) foot vertical.
Where topsoil is naturally available on the site, no less than six (6) inches of such topsoil shall be respread as part of the rehabilitation operation. Where less than four (4) inches of topsoil is available, material shall be brought to the site to provide a minimum four-inch cover.
Upon replacement of the topsoil, a ground cover shall be planted to hold the soil, according to standards established by the Commissioner of Public Works of the Town of North Hempstead.
If on-site mining or processing operations are not carried out for one (1) year at any location covered by permit, the same will be considered to have been abandoned and, prior to any further excavation or processing, a new permit will be required.
All material used as fill shall be free from garbage, refuse, offal, combustibles or any deleterious matter, unless a specific permit to operate a controlled sanitary landfill has been granted by the Nassau County Department of Health.
The issuance of a permit under this ordinance shall not constitute authorization for the construction of structures used in the processing of excavated materials.
Before the issuance of a permit, the applicant and the owner of record of the premises shall execute and file with the Town Clerk a bond approved by the Town Attorney of the Town of North Hempstead in the amount of five thousand dollars ($5,000.) per acre proposed to be mined with a surety company licensed to do business in the State of New York and conditioned upon the faithful performance of the conditions contained in this ordinance, the observance of all other municipal ordinances, and to indemnify the Town of North Hempstead for any damage to town property. In the event of a default, such bond shall be forfeited to the Town of North Hempstead. In lieu of such a bond, a cash deposit or deposit of negotiable securities may be made with the Comptroller of the town.
The officer designated by the Town Board to issue such permits shall charge and collect for each such permit a fee of seventy-five dollars ($75.) for each acre of area or fraction thereof proposed to be mined which shall accompany the application, and a like sum with each application for renewal thereof, until such time as the actual rehabilitation has been completed and accepted by the Commissioner of Public Works.
Such permits shall expire by limitation one (1) year from the date of issuance unless the data submitted in accordance with the requirements of this ordinance in § 45-4, Rehabilitation plan, demonstrates that the completion of such rehabilitation plan will require a period in excess of one (1) year from the date of issuance of the permit. In that event, the Town Board may approve a permit for a period longer than one (1) year, but in no event to exceed five (5) years. In the event a permit is issued for more than one (1) year, the applicant is required to submit annually on the anniversary date of the original permit the data required by § 45-4 hereof, and pay the annual fee required in this ordinance.
Nothing contained in this ordinance shall require a person to obtain a permit for or prevent a person from removing topsoil from one part of his land to another part of the same premises when such removal is necessary as an accessory use, or is made for the purpose of farming or improving said property, or to obtain a permit hereunder for the installation of public improvements or public utilities, or for the installation of public utilities under a road opening permit, or for the removal of material by dredging operation or the construction of sewage disposal systems.
The authority for the enforcement of this ordinance shall be vested in the Commissioner of Public Works of the Town of North Hempstead. For any and every violation of the provisions of this ordinance, the owner, lessee, tenant, trustee, occupant, general agent or contractor of a building or premises where such violations have been committed or shall exist, and the owner, lessee, tenant, trustee, occupant, general agent or contractor of any part of the premises in which part of said violation has been committed or shall exist, and the general agent, architect, engineer, surveyor, building contractor or any other person who knows, permits, takes part or assists in any such violation or who maintains any premises in which any such violation shall exist shall be guilty of an offense against the ordinance, punishable by a fine of not more than two thousand five hundred dollars ($2,500.) per day. Each day's continued violation shall constitute a separate additional violation of this ordinance. Such fines or penalties shall be collected as like fines are now by law collected.
If any clause, sentence, paragraph, section or part of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part hereof directly involved in the controversy in which such judgment shall have been rendered.
The ordinance adopted by the Town Board of the Town of North Hempstead on the eighth day of January 1946, as amended on the 22nd day of January 1963, regulating sand bank and pit, topsoil removal and other excavations is hereby repealed.
Editor's Note: The ordinance repealed comprised former Ch. 45, Sand Bank and Pit Excavations.