[HISTORY: Adopted by the Town Board of the
Town of Brookhaven 7-7-1987 by L.L. No. 14-1987;[1] amended in its entirety 5-21-2015 by L.L. No. 8-2015, effective 6-2-2015.
Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Building construction — See Ch. 16.
Zoning — See Ch. 85.
Subdivision regulations — See
Appendix.
[1]
Editor's Note: This local law also repealed
former Ch. 53, Sand and Gravel Pits; Excavations; Removal of Topsoil,
adopted 6-16-1987 by L.L. No. 7-1987.
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
The Town Board of the Town of Brookhaven
recognizes that sand, gravel and topsoil are valuable natural resources
of property owners within certain areas of the Town and that in past
years the excavation of sand, gravel and/or topsoil has proceeded
in an unsatisfactory manner resulting in the elimination of ground
cover, natural vegetation and the degradation of slopes, radical changes
in stormwater runoff and other problems which, in all likelihood,
will lead to the permanent sterilization of property within the Town;
therefore, the purpose and intent of this chapter is to restrict the
removal of sand, gravel and topsoil to those instances where it is
absolutely essential to remove said raw materials from a site in connection
with the residential, commercial or industrial development of the
premises, and further that the purpose and intent of this chapter
is to encourage development which utilizes existing slope contours
wherever possible so that drainage patterns and existing vegetation
will be subjected to the least disturbance as is practicable.
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
As used in this chapter, the following terms shall have the
meanings indicated:
The extraction of overburden and minerals from the earth;
the preparation and processing of minerals, including any activities
or processes or parts thereof for the extraction or removal of minerals
from their original location and the preparation, washing, cleaning,
crushing, stockpiling or other processing of minerals at the mine
location so as to make them suitable for commercial, industrial, or
construction use; exclusive of manufacturing processes, at the mine
location; the removal of such materials through sale or exchange,
or for commercial, industrial or municipal use; and the disposition
of overburden, tailings and waste at the mine location. "Mining" shall
not include the excavation, removal and disposition of minerals from
construction projects, exclusive of the creation of water bodies,
or excavations in aid of agricultural activities.
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
A.
No lands or other premises shall be operated or used for mining operations
unless the premises is zoned L-2 Industrial and has a DEC mining permit
or is a legal preexisting mine with a DEC permit.
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
B.
"Mining operations" does not include the removal of sand, gravel,
stone, topsoil or other materials for: the construction of roads,
drainage structures, recharge basins, sanitary systems, drywells,
foundations, pools, parking lot construction, including cross access.
In the event a subdivision, site plan or other land use application
includes the removal of materials for the construction of roads, drainage
structures, recharge basins, sanitary systems, drywells, parking lots
or foundations, the applicant must submit a materials removal plan.
The materials removal plan shall be reviewed by the Department of
Planning, Environment and Land Management. The least amount of material
to allow for construction shall be approved by the Department of Planning,
Environment and Land Management. The Department shall accept, reject
or accept with modification each materials removal plan. The final
determination of the amount of material subject to the fees set forth
in § 29-7C shall rest with the Commissioner of the Department
of Planning, Environment and Land Management. Topsoil may be removed
as required for construction purposes, but removal should be minimized.
Topsoil retention on site for landscaping purposes should be maximized.
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
C.
The materials removal plan shall:
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
(1)
Be prepared by a New York State (NYS) licensed professional engineer
(PE) with the objective of ensuring the least amount of material is
removed from the premises; and
(2)
Include a PE-certified estimate of the amount of material to be removed
for the construction of roads, drainage structures, recharge basins,
sanitary systems, drywells, parking lots, foundations or pools; and
(3)
Include a PE-certified engineer's analysis of the amount of
materials to be removed; and
(4)
Include the reasons for material removal and an explanation as to
why other engineering techniques that would eliminate the need for
removal of soils cannot be accomplished on the subject site, including,
but not limited to, cutting and filling, the import of soil backfill
approved by an environmental regulatory agency and certified by the
PE to be clean [meets 6 NYCRR Subpart 375.6.8(b) soil cleanup objectives
for residential land use and protection of groundwater], use of retaining
walls and/or grading.
D.
In the event a subdivision, site plan or other land use application includes removal of excess material, other than for construction of roads, recharge basins, drainage structures, sanitary systems, drywells, parking lots, foundations or pools, the applicant may appeal to the Board of Zoning Appeals for permission to conduct said activities. The appeal shall be made in the form of a use variance and the Board of Zoning Appeals shall review the application as a use variance in conformance with Town Code § 85-57C and Town Law § 267-b. The application shall be on a form prescribed by the Board of Zoning Appeals and shall include a materials removal plan indicated above. The Board of Zoning Appeals shall hold a public hearing and shall make a determination as to approval, deny or approve with conditions the proposed mining operations. In addition to the criteria contained herein, the Board of Zoning Appeals shall consider the following criteria in making its determination:
[Amended 12-19-2019 by L.L. No. 26-2019, effective 12-31-2019]
(1)
The location of the premises relative to sensitive environmental
areas, including, but not limited to, groundwater deep recharge zones
(Zones I and III, Long Island Comprehensive Waste Treatment Management
Plan, Koppelman, 1978), wetlands, wild and scenic rivers, and critical
environmental areas (CEAs). Excess material removal in sensitive environmental
areas shall not be permitted.
(2)
The proposed changes in topographic slopes and elevations of the
premises relative to existing slopes and elevations on the premises
and all abutting properties. Excess material removal that changes
the topographic elevations or slopes of the premises in a manner so
as to alter drainage patterns, groundwater recharge, viewsheds, or
vegetation patterns on the premises or abutting properties or that
may result in increased soil erosion, groundwater degradation, or
other negative impacts shall not be permitted.
(3)
The proposed elevations throughout the premises following materials
removal and prior to any backfilling, relative to the elevation of
the water table surface beneath the premises, as determined from maps
most recently published by the U.S. Geological Survey or Suffolk County
Department of Health Services. Excess materials removal shall not
be permitted if the vertical separation between the water table and
the lowest proposed elevation is less than 15 feet. Materials removal
plans shall maximize the vertical separation between the water table
and the proposed elevations to protect groundwater.
(4)
The nature and extent of vegetation removal. Vegetation removal shall
be minimized, particularly the removal of native vegetation and mature
forest. Vegetation removal shall not be permitted within the lot line
setbacks applicable under the zoning of the premises, and in no case
within 50 feet of the premises' lot lines.
(5)
The applicant's proposed restoration of the premises following materials removal; the proposed restoration must be detailed in a restoration plan. The restoration plan must include slope stabilization measures, drainage design, backfill placement as needed (consistent with soil import requirements in § 53-3C), revegetation with native plant materials in kind with native plant materials on the premises and abutting properties, and other measures as needed to restore the topographic slopes, natural drainage, and vegetative cover of the premises following materials removal. The restoration plan shall include a monitoring plan. The monitoring plan shall be implemented over a minimum of five years following restoration and shall include, at a minimum, an annual inspection of the topographic slopes, drainage, and vegetative cover of the premises by a NYS-licensed PE, who shall recommend any measures needed to repair any deficiencies in the restoration. Any identified deficiencies shall be corrected within three months of identification and monitoring shall be continued for not less than five years following any corrective measures.
(6)
At no time shall any backfill be placed on the premises that includes
suspect materials, including but not limited to historic fill, construction
and demolition debris, asbestos-containing materials, asphalt, or
other deleterious materials, regardless of the backfill chemical composition.
"Suspect materials" shall include, but not be limited to, solid waste
and materials that contain hazardous substances as listed in 6 NYCRR
Part 597, "Hazardous Substances Identification, Release Prohibition,
and Release Reporting."
(7)
The least amount of material to allow for construction shall be approved
by the Zoning Board of Appeals.
E.
No sand mine, gravel mine or sand and gravel mine shall be used for
a sanitary or other landfill.
F.
Fees. There shall be the following fees payable to the Town of Brookhaven
pursuant to an approved grading plan under authority of this chapter:
[Amended 11-20-2018 by L.L. No. 26-2018, effective 12-3-2018]
The removal of excess material covered hereunder shall not exceed
a period of one year from the date of issuance of the site plan approval
or subdivision approval. The Board of Zoning Appeals shall have the
authority to grant one-year extensions of permits for any operation,
if the activity was approved pursuant to Board of Zoning Appeals grant,
provided that the applicant can demonstrate that the extension is
necessitated by construction delays caused by acts of nature or other
catastrophic events outside of the applicant's control.
The applicant, prior to commencing removal of excess material,
must post a bond in such form as shall be approved by the Town Attorney
and in an amount to be specified by the Planning Board to guarantee
performance in accordance with the approved site plan or the approved
subdivision plan. In the event that the regulated operations authorized
pursuant to this chapter are not completed within the time permitted,
the bond may be defaulted to cover the cost of restoration of the
premises. In the event that there is an existing bond, which otherwise
conforms to the requirements set forth herein, which was issued to
secure performance to the State of New York or any of its agencies,
the Town may be added as additional named insured thereunder.
The permittee or applicant for all operations authorized by
this chapter shall provide to the Planning Board the following documentation,
in a form approved by the Planning Board:
Any deviation in operations permitted pursuant to the authority
of this chapter from the approved site plan or the approved subdivision
map (to the extent of the grading plan incorporated therein) shall
constitute grounds for summary revocation by the Planning Board and
Zoning Board of Appeals of any permit granted pursuant to the provisions
of this chapter.
Any sand mining operations presently existing and operating
pursuant to a preexisting, current sand mining permit issued by the
Zoning Board of Appeals shall constitute a nonconforming use and may
continue to operate as a sand mine subject to the following conditions:
A.
The dumping of garbage, debris, rubble or any other kind of material
or solid waste, including but not limited to construction and demolition
debris, and any materials that contain hazardous substances as delineated
in 6 NYCRR 597, entitled "List of Hazardous Substances," shall be
strictly prohibited at any such site.
All costs and special fees incurred by the Town in connection
with the processing of an application pursuant to this chapter or
for the supervision of operations conducted pursuant to a grant of
permission pursuant to this chapter, including but not limited to
engineering reports, on-site inspections and aerial inspections, shall
be borne by the applicant and/or permittee of the subject premises.
In connection with the approval of any building permit, site
plan or change in use involving mining operations, the Planning Board
and Board of Zoning Appeals shall have the power to adopt rules and
regulations consistent with this chapter.
A.
For any and every violation of the provisions of this chapter, the
owner, lessee and/or agent thereof, including but not limited to said
owner's or lessee's engineer, surveyor, contractor or any
other agent thereof who knowingly permits, takes part in or assists
in any conduct constituting a violation of this chapter or who maintains
any premises upon which any such violation shall exist, shall be guilty
of a misdemeanor punishable by a fine of not less than $10,000 or
imprisonment not exceeding 20 days, or both. Each day's continued
violation of this chapter after written notice thereof shall constitute
a separate additional offense.
B.
For any and every violation of the provisions of this chapter, the
corporate owner, corporate lessee, and/or agent thereof, including
but not limited to said owner's or lessee's engineer, surveyor,
contractor or any other person or corporation who or which knowingly
permits, takes part in or assists in any conduct constituting a violation
of this chapter or who or which maintains any premises upon which
any such violation shall exist, shall be guilty of a misdemeanor punishable
by a fine of not less than $10,000 or imprisonment not exceeding 20
days, or both. Each day's continued violation of this chapter
after written notice thereof shall constitute a separate additional
offense.
The owner, general agent, lessee or tenant of any part of the
premises for which a violation under this chapter has been committed
or shall exist shall be responsible for damages caused to adjacent
properties, whether public or private, and shall be responsible for
the cost of restoring the subject premises in such manner as to ensure
that damage to adjacent properties will cease. In the event of any
such violation, the Town Attorney is hereby authorized to commence
an action in a court of appropriate jurisdiction to restrain and correct
said violation and for damages.
If any clause, sentence, paragraph or section of this chapter
shall be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not impair or invalidate the remainder hereof,
but such adjudication shall be confined in its operation to the clause,
sentence, paragraph or section directly involved in the controversy
in which judgment shall have been rendered.
