[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 of twenty-five ($25.00) dollars. 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:
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.
Shall mean any individual, firm, association, partnership
or corporation, or any group of two (2) or more of them.
Shall mean any earth, sand, clay, loam, gravel, humus, rock
or dirt without regard to the presence or absence therein of organic
matter.
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.
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.
[Ord. No. 5-18-54 § 12]
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.
