[HISTORY: Adopted by the Planning Board of the Town of Conway 8-9-1990. Amendments noted where applicable.]
Pursuant to the grant of authority in RSA 155-E:11, the Planning Board of the Town of Conway, New Hampshire, hereby adopts these excavation regulations on August 9, 1990.
The purpose of this chapter is to control excavation to ensure protection of public health, safety and welfare. Clearly, the public interest is served by allowing the reasonable extraction of earth, but such excavations must not be allowed to cause "undue disruption of local land use plans and patterns" (New Hampshire Senate Bill 67-FN, 1989, adopted as Chapter 363). This chapter fulfills many public purposes, including making excavation sites safe during excavation operation; ensuring safe, usable and aesthetically acceptable reclaimed excavation sites; protecting natural resources, including but not limited to soil, water, flora and fauna; preventing land and water pollution; promoting soil stabilization; and protecting the productivity of agricultural land of national and state significance.
As used in this chapter, the following terms shall have the meanings indicated:
- ANNUAL EXCAVATION PERMIT EXTENSION
- Authorization from the Town to extend the duration of the excavation permit.
- The Town of Conway, New Hampshire, Planning Board.
- DIMENSION STONE
- Rock that is cut, shaped or selected for use in blocks, slabs, sheets or other construction units of specified shapes or sizes and used for external or interior parts of buildings, foundations, curbing, paving, flagging, bridges, revetments or for other architectural or engineering purposes. Dimension stone includes quarry blocks from which sections of dimension stone are to be produced. Dimension stone does not include earth, as defined below.
- Sand, gravel, rock, soil or construction aggregate produced by quarrying, crushing or any other mining activity or such other naturally occurring unconsolidated materials that normally mask the bedrock.
- A land area which is used, or has been used, for the commercial taking of earth, including all slopes.
- EXCAVATION BUFFER AREA
- That area surrounding an excavation site which is not excavated and which naturally or through modification offers abutters and those passing the site protection from visual and noise impacts.
- EXCAVATION PERMIT
- Authorization from the Town of Conway to excavate earth.
- EXCAVATION SITE
- Any area of contiguous land in common ownership upon which excavation takes place.
Unless specifically exempted under the provisions of RSA 155-E:2 or RSA 155-E:2-a, no excavation shall begin nor be expanded without first obtaining an excavation permit from the Board and maintaining a valid permit for the duration of the project.
Excavation permits shall be valid for a period of one calendar year. Excavations which last longer than this may apply each year for an annual excavation permit extension.
The following are prohibited projects, and the Board shall not grant a permit:
Where the excavation would violate the operational standards of RSA 155-E:4-a or those operational standards specified in this chapter.
For excavation within the buffer area, unless the abutter along the relevant boundary submits a written request to waive said buffer.
When the excavation is prohibited by Chapter 190, Zoning, of the Conway Code, subject to the limitations set forth in RSA 155-E:4, III.
When the issuance of a permit would be unduly hazardous or injurious to the public health, safety or welfare.
Where existing visual barriers, especially trees, in the buffer area would be removed, except to provide access to the excavation.
Where the excavation would substantially damage a known aquifer, so designated by the United States Geological Survey.
When the excavation is planned beneath or adjacent to inland surface waters in such a manner that a permit is required from the New Hampshire Department of Environmental Services or federal agencies with jurisdiction over the premises, but the Planning Board may grant the permit when all necessary permits have been obtained.
Where the project cannot comply with the reclamation provisions of RSA 155-E:5 and 155-E:5-a, or any provisions set forth in this chapter.
Prior to receipt of an opinion letter from the Conway Conservation Commission regarding the Commission's concerns, provided that such letter is received within 30 days of the submission of the complete application.
The first action an applicant should take is to read through this chapter. Copies are available at Town Hall, and a fee to cover printing costs shall be charged. By reading the rules, the applicant will know the Town requirements and will be properly prepared to proceed with the application for an excavation permit. Failure to fulfill such requirements may result in unnecessary delays in obtaining a permit.
Preliminary discussion. This initial step is optional, at the applicant's discretion, but is strongly recommended so that the applicant may get the Board's initial reaction to, and suggestions for, the project. The applicant may meet with the Board to discuss the project in general terms only, possibly specified and limited in RSA 676:4, II(a). Further detail in the discussion, including presentation of any plans, shall require proper public notice, as per RSA 676:4, II(b). However detailed the discussion, this phase is nonbinding on both the Board and the applicant.
Application acceptance checklist. After preparing an application, the applicant shall meet with the Town Planning Director to review the application and related materials. The Planning Director shall review the application and related materials and shall complete the application acceptance checklist based on information provided at this meeting. The checklist is shown in Table One. If the applicant successfully meets the requirements of this checklist, the Planning Director shall schedule a public hearing with the Board, to be held within 30 days. (Note: Successful completion does not constitute application acceptance by the Planning Board, but is merely a preliminary check prior to setting up a public hearing.) If the applicant fails to meet the requirements of this checklist, the applicant shall revise the materials as needed and repeat this step. The checklist and all application materials shall remain on file at Town Hall, available for public inspection.
[Amended 4-11-2017 ATM by Art. 29]
Editor's Note: The checklist is on file in the Town offices.
Public notice. Notice of the public hearing shall be sent by certified mail to the applicant, abutters and the Chairman of the Conservation Commission. Such notice shall be published in a local newspaper and shall be posted at Town Hall, the Conway Post Office, the Center Conway Post Office and the North Conway Post Office. Notice shall state the date, time and location and shall precede the hearing by at least 14 days, not including the day of the hearing nor the day of posting or publication.
Application acceptance. The Board's first action on the application shall be to review the application materials and the checklist to determine whether or not the application is complete. If the application is found to be complete, the Board shall vote to accept the application and begin formal consideration. If the application is found to be incomplete, the Board shall vote to deny acceptance of the application on the basis of insufficient information, and the applicant shall return to Subsection B listed above.
Public hearing. Upon determining that the application is complete and voting to accept the application, the Board shall ask the applicant to present a summary of the proposal to the Board and the public, then shall open a public hearing and shall ask for public input. This hearing shall not be closed until the Board is ready to approve, conditionally approve or deny the application. If additional time is necessary, the hearing shall be continued in accordance with Article IX of the Conway Planning Board Bylaws. To ensure proper control of the meeting, the Chairman may decide when further public input will be accepted and when it will be prohibited.
Decision. Upon closing the public hearing or any continuations thereof, the Board shall approve, conditionally approve or deny the application within 20 days. This twenty-day limit is set by RSA 155-E:7, and may not be extended.
Excavation permit. Upon payment of all fees (See § 47-6.), the posting of required financial security with the Board of Selectmen, and fulfillment of all other terms of the approval, an excavation permit shall be issued. This permit shall be valid for a period not to exceed one year. However, an annual excavation permit extension may be granted as provided in Subsection H.
Annual excavation permit extension. Once each year, the owner/operator of the excavation shall request in writing an administrative review of the permitted excavation. The applicant shall demonstrate compliance with the approved plans, that the financial security for each phase which will be active during the upcoming year is in place and the approximate amount of earth remaining to be removed from the site and/or each phase. The Town Engineer and Town Planning Director shall conduct a site visit to review the information presented and shall issue an annual excavation permit extension. If noncompliance is evident, then the matter shall be brought to the attention of the Planning Board. The Board shall hold a public hearing and shall make a final determination on compliance with the conditions of the permit.
[Amended 4-11-2017 ATM by Art. 29]
[Amended 4-11-2017 ATM by Art. 29]
Excavation fee. As provided by RSA 155-E:8, the applicant shall pay an excavation fee in an amount set from time to time by the Board of Selectmen, made payable to "Town of Conway," to cover the costs of administering the application. This excavation fee shall be paid following approval by the Board but prior to the issuance of an excavation permit.
Notice fee. The applicant shall pay all applicable public notice fees specified in § 130-18 of the Conway Code. Hearing notification fees shall be paid at the time the application is submitted.
Review fee. The applicant shall reimburse the Town for the cost of reviewing the application in an amount set from time to time by the Board of Selectmen.
The applicant shall provide all required materials to the Town Planning Director at the time the application acceptance checklist is completed. The applicant shall provide one copy of the application form, list of abutters and mailing labels. The applicant shall provide four copies of plats, plans and impact statements. (Three copies are for the Board, and one is for the Conservation Commission.) The applicant shall provide two copies each of all contracts, agreements and other required materials.
[Amended 4-11-2017 ATM by Art. 29]
A complete excavation application shall consist of the following:
A completed application form.
Abutters list (as listed not more than five days prior to the day of filing).
Mailing labels for the applicant, the applicant's authorized agent, abutters and the Conservation Commission Chairman.
Separate pre- and post-development plats of the entire parcel and the surrounding 200 feet, at a scale of one inch equals 100 feet or greater, indicating at a minimum:
Title block, indicating name of project, name and address of owner, date of preparation and updates.
The name of surveyor and the engineer.
The site location map.
Licensed land surveyor's stamp and signature.
Licensed professional engineer's stamp and signature on drainage materials.
For each abutting property, the owner's name, Tax Map and parcel number.
Topography, with twenty-foot contour intervals, unless further information is needed for proper evaluation.
Depth to estimated seasonal high water table, with enough test pits to accurately indicate site conditions, stamped by a licensed professional engineer, hydrogeologist or soil scientist.
Man-made features, including but not limited to buildings, structures, septic systems, wells and stone walls.
Easements, covenants and deed restrictions.
Zoning district boundaries, municipal boundaries, precinct/district boundaries.
A written statement describing the proposed excavation, addressing at a minimum:
Erosion and sediment control plan, to address such controls during operation, as well as between phases (must be stamped by a professional engineer).
Phasing plan for excavation and reclamation, including operational movement and method within each phase.
Off-site improvements plan, including any agreements, plans and so forth relating to this project.
Copies of all federal, state, municipal and precinct permit applications, with final approvals/permits to be obtained prior to the Planning Board granting an excavation permit.
The Town requires that applicants shall post a financial security to ensure that reclamation is completed and successful. Acceptable forms shall include cash, escrow accounts, irrevocable letters of credit and bonds. The amount held by the Town shall be sufficient for the Town to complete any site work indicated in the approval and to complete the reclamation of every phase in which excavation will occur. For phased projects, the entire security for the current phase shall be posted prior to issuance of the excavation permit, and portions shall be released with the completion of tasks within each phase. Prior to continuing on to further phases, new securities shall be posted. Any partial release shall draw down the security to the point where the amount remaining will be sufficient for the Town to complete all remaining work and reclamation measures. Ten percent of the original amount of the security shall be held for a period of not less than one year but no more than two years following completion of all reclamation to ensure that the reclamation measures work; i.e., that the vegetation actually grows in seeded areas, and so forth.
Every applicant required to post a financial security shall enter into a reclamation agreement with the Town of Conway prior to the issuance of an excavation permit. This agreement is a contract between the applicant and the Town which spells out the terms of the financial security and includes:
Schedule for completion, by phase if applicable.
Schedule of values for all site work and reclamation, with inflation escalators.
The amount and type of the financial security.
Procedures for the release or partial release of the financial security, and for posting securities for later phases.
Other items deemed necessary by the Board of Selectmen or the Town Attorney.
The operation of all excavation sites shall conform to the following minimum standards:
All work shall be completed in accordance with the plans submitted to and approved, if relevant, by the Board.
Access to the site shall be designed to minimize traffic hazards on the street and to avoid nuisance to the neighbors.
All processing machinery shall be set back a minimum of 200 feet from any lot line, and such machinery shall be removed from the lot upon expiration of the permit.
No materials shall be stockpiled within the buffer areas.
Hours of operation shall be established and noted on the excavation permit. The hours shall be proposed by the applicant, and the Board shall approve or restrict the hours of operation as required to maintain the integrity of the neighborhood.
An excavation buffer area on the lot shall surround the excavation site. The buffer area shall meet or exceed the following minimum standards.
A vegetative and/or topographic buffer shall be maintained within the excavation buffer area. The intent of this buffer is to screen abutting properties and roads from visual and noise impacts. Except for the site access, no trees shall be removed from the buffer area. The Board shall review the site to evaluate the need for additional screening materials and shall base such decisions on maintaining the integrity of the neighborhood.
The depth of the final excavation shall be no less than four feet above the seasonal high water table.
As required by RSA 155-E:11, II, the Board may waive this requirement, subject to the following:
The applicant demonstrates that such action will have no adverse impact on water quality and/or water supplies; and
The area excavated below the four-foot level shall be either:
Deemed nonbuildable, to be used solely for open space or recreation, with evidence of such restriction to be recorded with the Carroll County Register of Deeds; or
Filled during site reclamation with material of similar porosity to that material removed, back to four feet above the seasonal high water table.
The Board shall record a copy of such waiver with the Carroll County Register of Deeds and shall send a copy to the Department of Environmental Services, with all related costs to be paid by the applicant prior to the issuance of the excavation permit.
[Amended 4-11-2017 ATM by Art. 29]
The applicant shall provide the Town with a list of any hazardous materials which may be stored or used on the site. Such materials shall be handled and stored in accordance with state regulation and standards. All applicants shall provide evidence of environmental hazard/damage insurance prior to the issuance of the excavation permit and prior to the issuance of the annual excavation permit extension.
Excavation of topsoil shall be prohibited on those sites identified in the Conway Master Plan as being farmland of national importance or farmland of state importance. Excavation of topsoil on other lands shall be allowed, provided that at least four inches of topsoil are left on the surface of the entire site. Further, for excavation of materials under lands identified as farmland of state or national importance, all topsoil shall be retained on site and reclaimed as close to original as possible to maintain the agricultural productivity of the land.
The Town has both short- and long-term goals for excavation site reclamation. Short-term goals are to stabilize soils, preserve slopes and prevent erosion and pollution. Long-term goals are to provide the basis for the natural succession of vegetation and wildlife to take place on the site, ensure return of aesthetic qualities to the site and ensure continued success in meeting short-term goals specified above. The following reclamation standards are the minimum acceptable to the Town:
Within 12 months after the expiration date in a permit or annual extension issued under this chapter, or of the completion of any excavation, whether subject to permit or not, whichever occurs first, the owner of the excavated land shall have completed the reclamation of the areas affected by the excavation.
Reclamation shall meet each of the following minimum standards:
Earth and vegetative debris resulting from the excavation shall be removed or otherwise lawfully disposed of.
Where there are four or more inches of topsoil on the undisturbed site, sufficient topsoil shall be retained and stockpiled on site to be used for site reclamation, with a minimum reclaimed topsoil depth of four inches. The excess topsoil may be removed from the site for other use, except as prohibited in § 47-10J.
These regulations must be applied to each applicant in a fair and consistent manner. In certain instances, however, a waiver may be requested by the applicant if there is reason to believe that a particular requirement is inappropriate to the particular case.
The applicant shall submit in writing to the Board a request for waiver at least 14 days before the scheduled meeting date. The request shall address the following:
If the Board agrees with the materials presented in the request for a waiver and further finds that such waiver would not adversely compromise the purpose or intent of these regulations, it shall vote to grant the waiver request.
[Amended 4-11-2017 ATM by Art. 29]
The applicant may request, in writing, a modification of the approval granted by the Board. If the impact of the request is minor and does not significantly alter the original intent of the excavation permit, the Town Engineer and Town Planning Director may issue a written amendment of the excavation permit. Substantial changes shall require Planning Board approval and notice to abutters pursuant to RSA 155-E:7.
The enforcement of this chapter shall be the responsibility of the Board of Selectmen or its delegates, with the assistance of the Planning Board, the Conservation Commission, the Town Engineer and others as needed. The Board of Selectmen shall also be responsible for the enforcement of the reclamation agreement and the financial surety. Fines, penalties and remedies for violations shall be up to the maximum fines, all remedies, costs and reasonable attorney fees permitted pursuant to RSA 155-E:10, II.
If any clause, portion or section of this chapter is found invalid by a court of competent jurisdiction, this finding shall not invalidate the remainder of this chapter. In the event that the requirements of this chapter are in conflict with other regulations, ordinances or laws of the Town of Conway and the State of New Hampshire, the more stringent shall apply.
Appeals regarding this chapter shall be handled as specified in RSA 155-E:9.