[Ord. No. 5-18-54, Preamble]
The Common Council of the City of Summit do hereby find and determine that:
a. 
The unregulated and uncontrolled removal of soil from lands in the City by certain persons has resulted in conditions detrimental to the public safety, health and general welfare, substantially hampering and deterring the efforts of the City to effectuate the general purpose of municipal planning; and
b. 
Continuation of the unregulated and uncontrolled removal of soil from lands in the City will result in serious and irreparable damage to the public welfare by soil erosion; inadequate and improper surface drainage; decrease or destruction of the fertility of the soil; removal of lateral supports for abutting streets, lands and properties; creation of dust and creation of mosquito breeding places; the creation of dangerous depressions or pits; the deterioration of property values; the rendering of lands unfit or unsuitable for their most appropriate use; and the creation of other factors and elements hampering and deterring the coordinated, adjusted and harmonious physical development of the City.
[Ord. No. 5-18-54 § 1]
No person shall move or cause, allow, permit or suffer to be moved any soil from any lot or area in the City unless and until a soil permit therefor shall have been issued by the City Clerk of Summit.
[Ord. No. 5-18-54 § 2]
No owner of any lot or area in the City shall cause, allow, permit or suffer any soil to be moved away from such lot or area until such owner has first obtained a soil permit therefor.
[Ord. No. 5-18-54 § 3]
Any person or owner desiring to remove soil from any premises in the City of Summit, in the County of Union and State of New Jersey, shall first file with the City Clerk a map of the premises, showing the proposed contour lines and proposed grades resulting from such removal in relation to the existing topography of the premises, and the proposed contour lines and proposed grades shall be subject to approval by the City Engineer of the City of Summit. No permit for soil removal shall be issued until such map has been filed and until the contour lines and grades have been approved by the City Engineer. The application for a permit shall be submitted to the City Clerk with a fee in the sum as stated in Chapter A Schedule of Fees Appendix, Soil Removal. Any permit granted in accordance with this chapter shall be valid for a period of ninety (90) days.
[Ord. 5-18-54 § 4]
In the removal of soil, the owner or person to whom such permit is granted, shall conduct his operations so that there shall be no sharp declivities, pits or depressions and so that the area shall be properly leveled off, cleared of debris, and graded to conform with the contour lines and grades as approved by the City Engineer.
[Ord. No. 5-18-54 § 5]
The owner or person to whom such permit is granted, in the removal of soil, shall not take away the top layer of arable soil for a depth of three (3") inches, but such top layer of arable soil to a depth of three (3") inches shall be set aside for retention on the premises, and shall be respread over the premises when the rest of the soil has been removed, pursuant to levels and contour lines approved by the City Engineer.
[Ord. No. 5-18-54 § 6]
In the removal of soil, the owner or person who obtains such permit shall make use of only such streets for transportation as are designated for the purpose by the City Engineer.
[Ord. No. 5-18-54 § 7]
Before any permit for soil removal shall be issued, the applicant shall file with the City a performance bond in form and with surety acceptable to the City in an amount to be determined after report by the City Engineer as to necessities and requirements in the undertaking, which bond shall be conditioned that:
a. 
The work of soil removal shall comply with this chapter and shall be done in proper manner in accordance with the grades and contour lines approved by the City Engineer;
b. 
That the top layer of soil to a depth of three (3") inches shall be set aside and retained, to be thereafter re-spread over the area when the rest of removal has been completed;
c. 
That repairs at the expense of the applicant shall be made to any street or streets used in transportation if the City shall consider such repairs are necessary because of the use of the streets;
d. 
That the work shall be properly done without detriment to adjoining properties or detriment to the City and without leaving any sharp declivities, pits or depressions, and will be leveled off properly and cleared of debris.
[Ord. No. 5-18-54 § 8]
No soil shall be removed unless a permit therefor shall have been first obtained as provided herein, and no soil shall be removed except in conformity with the provisions of this chapter.
[Ord. No. 5-18-54 § 9]
As used in this chapter:
OWNER
Shall mean any person seized in fee simple of any lot, plot, piece or parcel of land or having such other interest or estate therein as will permit the exercise of effective possession thereof or dominion thereover.
PERSON
Shall mean any individual, firm, association, partnership or corporation, or any group of two (2) or more of them.
SOIL
Shall mean any earth, sand, clay, loam, gravel, humus, rock or dirt without regard to the presence or absence therein of organic matter.
TOPSOIL
Shall mean soil that, in its natural state, constitutes the top layer of earth, and is composed of two (2%) percent or more, by weight, of organic matter and has the ability to support vegetation.
TO REMOVE
Shall mean to remove from the lot, plot, parcel or premises upon which the soil is situated to any other lot, plot, parcel or premises not contiguous to or a part of the premises from which the soil is removed.
[Ord. No. 5-18-54 § 11]
Nothing herein contained shall prohibit the transportation of topsoil into the City from other municipalities or to prohibit soil from being transported from one (1) lot to another within an area owned or developed by one (1) person, or to prevent any person in connection with the construction of a building or street from moving or excavating soil from the premises, or to prohibit any person in connection with the construction of a building or street from excavating and grading the premises.
Opinions of City Solicitor dated April 14, 1976.
ISSUE: Whether or not said ordinance is applicable to the removal of soil in connection with the construction of buildings and streets.
A review of the above ordinance indicates that it is directed at "the unregulated and uncontrolled removal of soil" by persons or owners of premises which would result in a change of the existing topography of those premises, Section 5 of the ordinance specifically requires that any top layer or soil removed shall be respread over the premises, Section 11 states that "Nothing herein shall... prevent any person in connection with the construction of a building or street from moving or excavating soil from the premises, or to prohibit any person in connection with the construction of a building or street from excavating and grading the premises." Although this section does not explicitly state that such person does not need to apply for a soil permit, a reading of the entire statute leads to that conclusion.
The construction of a building or a street is an already regulated and controlled activity which requires that issuance of plans and specifications be in accordance with certain standards. The purpose of the ordinance is not directed at such conduct. Soil removal as a result of excavating premises for construction purposes could not be respread over the premises as required by Section 5, and therefore would render a significant portion of the ordinance meaningless.