[HISTORY: Adopted by the Town Meeting of the Town of Plympton 6-17-2020 ATM by Art. 27. Amendments noted where applicable.]
The purpose of this bylaw is to support the maintenance of the
Town of Plympton's rural character, including its natural, scenic,
historic, and agricultural qualities and to protect its water resources.
As used in this bylaw, the following terms shall have the meanings
indicated:
Agriculture shall be defined in accordance with MGL c. 128,
§1A, and in accordance with MGL c. 131,§ 40, including Massachusetts
Wetlands Regulations, 310 CMR 10.04.
The Board of Selectmen of the Town of Plympton shall act
as the permit granting authority (PGA).
The business of extracting ore, earth or minerals from the
ground for sale or profit that is not incidental or related to any
other use or activity on the property.
All forms of soil, including, without limitation, decomposed
organic matter, topsoil, loam, sand, gravel, clay, peat, hard-pan,
or rock.
The processing or removal, or both, from a site, by hand
or by machinery, of any earth material, including but not limited
to loam, sand, gravel, clay, peat, hard-pan, or rock, from the surface
or subsurface without the aid of drilling and/or blasting, together
with all activities associated with the removal, including, but not
limited to, the stripping of vegetation, loam, topsoil, or sod, the
digging, stockpiling, processing, moving, depositing, or transportation
of earth products in any form, natural, altered or otherwise. "Earth
removal operation" includes the moving of equipment required for the
operation to, from, or within the site, and all land affected by the
operation (e.g., fill, or storage piles, access ways, or structures).
Earth removal operations shall include all land impacted by the operation
(e.g., pits, fill or storage piles, access ways and structures).
The alteration of more than 50% of any single lot or more
than one acre of land, whichever is less.
Any individual, partnership, corporation, firm, association,
trust or group.
The sorting or separation of earth materials into distinct
categories based on particle size or type, usually through the use
of a screening process but not exclusively so. Processing does not
include stone crushing.
The removal of stone (from the ground) by cutting, blasting,
ripping or hammering or any other method other than collection of
distinct particles (e.g., glacial erratics, boulders and similar distinct,
separate stone objects).
Sensitive areas shall be considered as the following:
Areas subject to the jurisdiction of either the State Wetlands Protection Act (MGL c. 131, § 40), Chapter 290, Wetlands Protection, of the Town Bylaws, or both.
Areas delineated as Priority or Estimated Habitats for Rare
Species as defined by the Natural Heritage and Endangered Species
Program (NHESP), a Division of the Department of Fisheries and Wildlife.
Areas designated as Watershed Protection:
Department of Environmental Protection Estimated or Defined
Zones 1 and 2 to Public Water Supply Sources.
Areas included in MA DEP, Chapter 91, Waterways Program.
Areas delineated on the Town of Plympton’s Aquifer Protection
Overlay District and areas that are essential for safe and adequate
water supply to private wells.
Areas subject to the Department of Conservation and Recreation
(DCR), Watershed Protection per the Watershed Protection Act (313
CMR 11.00).
Community potable water supply wells, agricultural farm ponds
and reservoirs, Zone A and C to public surface water supplies.
Areas that are designated as flood zones as defined by FEMA.
Existing structures and uses that are not compatible with
earth removal operations. These include: schools, libraries, senior
housing facilities, hospitals, residential areas, scenic roads, multifamily
or cluster developments and other uses by their nature, as determined
by the Board, that are sensitive to noise, air and traffic caused
by earth removal operations.
The upper, outermost layer of soil, usually the top two inches
(5.1 cm) to 12 inches (30.5 cm). It has the highest concentration
of organic matter and microorganisms and is where most of the Earth’s
biological soil activity occurs.
A.
No person
shall conduct an earth removal operation in the Town of Plympton unless
they are the holder of an earth removal permit issued by the Board
or the operation qualifies for an exemption set forth in this bylaw.
The burden shall be on the operator to prove the applicability of
an exemption.
B.
Earth removal
permits shall be in effect for a period of one year from the date
of issue.
C.
All earth
removal operations shall be conducted in accordance with the requirements
of this bylaw, regulations of the Board adopted pursuant thereto and
all conditions imposed by the Board.
D.
All earth
removal operations shall be conducted in accordance with applicable
federal, state and local laws concerning the operation, including
but not limited to the requirements of the Conservation Commission.
It shall be the applicant’s responsibility to ensure compliance
with such laws, and the issuance of an earth removal permit by the
Board shall not authorize any earth removal operation undertaken in
violation of any other applicable statute, rule or regulation.
A.
Existing
operations. All earth removal operations in existence prior to the
effective date of this bylaw shall be subject to the requirements
stated in the bylaw and regulations enacted pursuant thereto. Any
person conducting an existing earth removal operation shall submit
an application for an earth removal permit within 30 days of the effective
date of this bylaw, unless the operation qualifies for an exemption.
B.
Exemptions.
(1)
Exempt
activities.
(a)
The following earth removal operations may be conducted without an
earth removal permit.
[1]
Earth removal operations for any federal, state or municipal purpose
by or on behalf of the Town of Plympton or any department or agency
thereof.
[2]
Earth removal of up to 50 cubic yards in a calendar year in the course
of normal gardening or landscaping.
[3]
The removal of earth that is merely incidental to the construction
or installation of buildings, structures, swimming pools, septic systems,
utilities, fences, athletic courts, driveways, parking lots, walkways
and other construction or installations occurring on the site from
which the earth is removed; provided that the project is being done
in accordance with all required permits and approvals, the amount
of earth removed does not exceed the amount needed for the construction
or installation and the removal of earth does not result in topographical
changes to the surrounding land.
[4]
The removal of earth in connection with agricultural use of land
which is customarily incidental to agricultural maintenance and improvement
practices as defined under MGL c. 131, § 40, 310 CMR 10.04:
(a) land in agricultural use, (b) normal maintenance of land in agricultural
use and (c) normal improvement of land in agricultural use, and/or
which may be cited in an order of conditions by the Conservation Commission.
Exempt agricultural-related projects must follow USDA Natural Resources
Conservation Service or established best management practices. Upon
completion of an exempt project, where applicable, restoration or
stabilization activities should follow Natural Resources Conservation
Service Practice Standard "Critical Area Planting" Code 342, with
regional conditions applied. Agricultural earth removal activities
are further defined as earth necessary to maintain or improve the
applicant's/owner's contiguous or noncontiguous land for agricultural
purposes and does not allow the removal of earth for sale, trade or
other considerations.
[5]
Earth removal up to 500 cubic yards for a subdivision which is entirely
incidental to the subdivision, site plan or special permitting process
in compliance with the specific requirements of an approved, definitive
subdivision plan.
[6]
The transfer of material from one part of a lot to another part of
the same lot.
[7]
Earth removal conducted in accordance with the provisions found in
the Massachusetts Contingency Plan, 310 CMR 40.0000.
(b)
The Board reserves the right to question what the owner/operator
considers to be an exempt project, and the owner/operator shall be
prepared to document how the exemption applies. Advance notification
to the Board of exempt projects is not required but is encouraged
in instances where truck traffic may exceed what is customary for
any particular operation.
(2)
Activities eligible for exemption. The above earth removal activities are considered incidental to the cited purpose of the exempt activities and do not require a permit, provided that the conditions set forth in Subsection B(3) are not present. For the purposes of this section, "incidental" shall be defined as meeting all of the following:
(a)
Is minor in significance to the primary use.
(b)
Is commonly established as reasonably associated with the primary
use.
(c)
Is necessary to carry out the primary use.
(d)
Is minor in its net effect to that of the principal use, based on
the amount of material to be removed and the time period over which
it is to be removed and/or the amount of money to be derived from
the earth removal operation.
(3)
Board determination of exemption. Notwithstanding the provisions of Subsection B(1) and (2), the Board may prohibit or require an earth removal permit for otherwise exempt operations if:
(a)
The operation constitutes a nuisance or danger to the public, the
operation will damage or threaten a private or public water supply,
and/or public or private wellheads, or if the operation does not conform
to accepted engineering and/or agricultural best management practices.
(b)
The proposed earth removal operation and/or construction-related
activities are pretext for earth removal and sale, or that the proposed
earth removal shall cause damage to the public health, safety, private
and public water supply or the environment.
(c)
The operation involves soil stripping or loam stripping or involves
topographical changes which shall be considered gross landscape modifications.
A.
Permit
applications and site plans. Applications for earth removal permits
shall be made to the Board by filing an application with the Board
on a form to be provided by the Board.
(1)
The
required information shall include but not be limited to the following:
(a)
The location of the proposed excavation.
(b)
The legal name and address of the owner of the property involved.
(c)
The legal name and address of the applicant (if different than the
owner).
(d)
A plan and representative profiles of the area, prepared by a registered
professional engineer, from which final grades may be established.
(e)
The anticipated amount (in cubic yards) of earth to be removed.
(f)
The reason for the project.
(g)
The location to which the earth will be deposited.
(h)
Previous earth removal activities on the property.
(i)
Traffic studies, legal, or hydrogeological studies, or other studies
deemed necessary by the Board to conduct an adequate technical and
legal review of the permit application.
(j)
Locations of all private, community, agricultural reservoirs and
public water supply wells or reservoirs within 1,000 feet of the site’s
property line.
(2)
No
application for an earth removal permit shall be considered complete,
and shall not be acted upon, unless the Tax Collector of the Town
of Plympton has certified, pursuant to MGL c. 40, § 57,
that no debt is owed to the Town by the applicant and owner.
(3)
Site
plans of the removal areas shall be prepared by a registered professional
engineer or a registered land surveyor at a scale of 40 feet to the
inch.
B.
Hearing
process.
(1)
Upon
receipt of a completed application and payment of applicable fees,
the Board shall conduct a public hearing on the application. Notice
of said hearing shall be provided by registered or certified mail,
at the applicant's expense, to all abutters, owners of land directly
opposite on any public or private street or way, and abutters to abutters
within 300 feet, and to all Town boards and entities designated by
the Board, and by publication in a newspaper of general circulation
in the Town once, at least 14 days prior to the hearing.
(2)
In
no case shall the Board issue a permit for removing a greater amount
of earth than the Board deems necessary for the purpose stated in
the permit application.
(3)
The
Permit shall not be transferable to a different legal entity or individual
or with the sale of the property.
A.
Approvals.
In approving the issuance of a permit, the Board may impose reasonable
conditions, designed to protect public health, safety and welfare,
and natural resources, which may include, but not be limited to, the
following:
(1)
The
placing of topsoil and planting necessary to restore the area to usable
condition. Cover of topsoil of not less than four inches in depth
shall be replaced or allowed to remain, whereas agricultural-related
projects should follow USDA/NRCS restoration guidelines or established
industry best management practices.
(2)
The
duration of the removal operation.
(3)
The
construction of necessary fencing and other protections against nuisances
and/or erosion.
(4)
Method
of removal.
(5)
Temporary
structures.
(6)
Hours
of operation.
(7)
Routes
of travel or transportation of material.
(8)
Control
of temporary or permanent drainage.
(9)
Disposition
of boulders and tree stumps.
(10)
Set
and maintain permanent monuments at each property corner.
(11)
Slopes
shall not be steeper than 4 to 1, except for agricultural projects
where USDA/NRCS design standards or established industry best management
practices necessitate a different final slope. In addition, the Board
may specifically authorize a finished grade in excess of 4:1 based
on site-specific conditions.
(12)
The
lowest excavated point shall be no less than 10 feet above the existing
groundwater table, except for relevant agricultural water-dependent
projects, such as but not limited to cranberry bogs, ponds/reservoirs,
ditches and bypass canals. To ensure this minimum depth, the property
owner shall, at his expense, install observation wells in accordance
with the requirements of the Board's agent.
(13)
No
area shall be excavated so as to allow the accumulation of freestanding
water, except as necessary for specific agricultural projects.
(14)
Prior
to commencing earth removal operations, the applicant shall post with
the treasurer of the town of Plympton proper bond in such amount and
with such sureties as determined by the Board to be sufficient to
guarantee compliance with the terms and conditions of the permit.
(15)
All
earth removal operations shall be conducted in such a manner to prevent
the erosion of the land, pollution and siltation of waters or water
bodies, disturbing or negative impacts to sensitive areas and sensitive
receptors, and prevention and control of dust and other deleterious
effects of earth removal operations.
(16)
All
earth removal operations shall include the provision for restoration
of the site, in part during operations (phasing) or in whole, once
excavation and earth removal activities have ceased in that part of
the site.
(17)
The
Board shall require the person holding a permit hereunder to provide
to the Board on a quarterly basis documentary evidence of the quantities
of material excavated, the date of removal of such material, and the
owner of the vehicle used to transport the material.
(18)
The
Board may require bonds for restoration, road repair or other purposes
and monitoring fees.
B.
Denials.
If the Board finds, based on the facts adduced at the hearing, that
the permit may result in a nuisance or that it will otherwise create
a risk of harm to public health, safety or welfare or natural resources,
the Board may deny the application.
Notwithstanding the Board’s discretion in granting earth removal permits, no earth removal permit shall be issued in the following circumstances; provided, however, that the Board may grant a variance from the requirements of this section if it finds, after a public hearing as set forth in § 145-5, that a level of protection for public health, safety and welfare, and natural resources at least equivalent to the standard set forth in this bylaw can be achieved without strict application of the provision from which a variance is sought.
A.
There shall
be no quarrying.
B.
There shall
be no earth removal operations between sunset and sunrise of the next
day.
C.
There shall
be no use of explosives.
D.
There shall
be no processing or stone crushing.
E.
There shall
be no commercial mining.
F.
The finished
leveling and grading shall be indicated on the approved plans as indicated
and submitted to the Board, but in no event shall any grade be below
the grade of any abutting and established way open to the public or
private use, except that if on the authority of a registered civil
engineer it is determined by the Board that such a change in grade
below the existing grade is advantageous to the proposed change in
topography.
G.
No permit
for the removal of earth shall be approved by the Board if the work
extends within 400 feet of a way open to the public, whether public
or private, or within 200 feet of a building or structure or property
line, unless the Board is satisfied that such removal will not undermine
the way or structure, or prove detrimental to the neighborhood.
H.
The limit
of work shall be as described in the permit application and depicted
on accompanying plans. Work outside the limit of work is expressly
prohibited. Phasing limits shall be clearly depicted on submitted
plans.
I.
No permit
shall be issued or renewed under this bylaw until the applicant has
submitted to the Board current and complete information on the actual
and proposed depth of excavation and the maximum groundwater elevation
throughout the entire area proposed to be excavated.
J.
The removal
of soil, loam, sand, gravel or other earth material from land in any
district which falls within the Wetlands Act and local bylaw is prohibited,
unless expressly allowed under the agricultural provisions of said
Act or bylaw.
K.
No earth
removal operation shall be permitted adjacent to any sensitive receptor
or area unless mitigation measures approved by the Board, and consistent
with any related decisions by the relevant review board, committee
or agency, can be implemented.
L.
No permit
for earth removal shall be issued if such removal will result in traffic
hazards in residential areas or congestion or physical damage to streets,
roads or ways.
A.
In its
discretion, the Board may annually grant a further permit extension
for one additional year, not to exceed five years in total. However,
no permit extension shall be issued unless the applicant has conformed
to all requirements of the original and each extended permit. Sixty
days before the annual renewal date, the applicant must file a written
request to the permit granting authority for an extension.
B.
Permit
renewal applications shall be accompanied by an operations plan for
the permit period being applied for and an updated site plan.
C.
Any application
for renewal not submitted within the time required by this bylaw shall
be treated as a new application.
D.
Each renewal
application shall include all of the information required by the Board
and shall specify the number of cubic yards of material removed during
the prior permit term and shall be accompanied by an elevation plan
on a 50-foot grid prepared by a registered civil engineer, showing
before, after and proposed final elevations.
A.
The Board
or its designated representatives may enter upon the premises involved
from time to time to inspect and ensure proper conduct of the work.
B.
The Board
may adopt and may from time-to-time revise a schedule of reasonable
fees to cover the costs associated with the administration of this
bylaw.
C.
The Board
may engage engineers, scientists, financial analysts, planners, attorneys
or other appropriate professionals, who can assist the Board in analyzing
a project or application to ensure compliance with all relevant laws,
bylaws, standards and regulations. Such assistance may include, but
not be limited to, analyzing an application, monitoring or inspecting
a project or site for compliance with the Board’s decision or
regulations, or inspecting a project during construction or implementation.
The Board may adopt and from time-to-time revise regulations for the
imposition of reasonable fees for the employment of such outside consultants.
D.
The Board
or its designated representatives reserve the right to inspect the
applicant's records in connection with the project for which a permit
has been granted at any time.
The Board may adopt and amend reasonable rules and regulations
to carry out the purpose of this bylaw. Said rule-making authority
includes, but is not limited to, regulations for conducting public
hearings, defining the scope and applicability of exemptions and establishing
information needs and criteria for determining whether an earth removal
project is likely to result in a nuisance or if it will otherwise
create a risk of harm to public health, safety and welfare, and/or
natural resources.
A.
The Board
may modify, suspend or revoke any permit issued pursuant to this bylaw
for any violation of this bylaw or regulations adopted pursuant thereto
or any conditions imposed by the Board, or if it is determined commercial
mining is occurring. Such modification, revocation or suspension may
take place after a hearing held by the Board, of which the permit
holder is given seven days' written notice. Such notice shall be deemed
given upon mailing same, certified mail, return receipt requested,
to the address listed on the permit application.
B.
This bylaw
may be enforced by the Town’s Building Inspector or his/her
designee. Whoever violates any provision of this bylaw may be penalized
by a noncriminal disposition process as provided in MGL c. 40, § 21D
and the Town’s noncriminal disposition bylaw.[1] If noncriminal disposition is elected, then the noncriminal
fine for each such violation, if not otherwise specified, shall be
$300 for each day and for each unit of removal on which a violation
exists. A "unit of removal" shall be measured according to the method
used to remove soil, loam, sand or gravel from the original site,
such as a truckload of any size.
C.
Each day
or portion thereof shall constitute a separate offense. If more than
one, each condition violated shall constitute a separate offense.
D.
Whoever
violates any provision of this bylaw may be penalized by indictment
or on complaint brought in the District Court. Each day or portion
thereof shall constitute a separate offense. If more than one, each
condition violated shall constitute a separate offense.
E.
The Board
may enforce this bylaw or enjoin violations thereof through any lawful
process, and the election of one remedy by the Board shall not preclude
enforcement through any other lawful means.
The invalidity of any section or provision of this bylaw shall
not invalidate any other section or provision thereof.
