Township of Upper, NJ
Cape May County
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Table of Contents
Table of Contents
[Ord. #37, § 2; 1972 Code § 4-1; Ord. #21-1986, § 1; Ord. #22-1987, § 1]
No person shall engage in the activity or business of excavating, digging or mining of sand, gravel, earth, soil or mineral products for sale or for any other commercial or industrial purpose within the Township without first having obtained a license therefor from the Township as hereinafter provided.
[Ord. #37, § 5; 1972 Code § 4-2; Ord. #21-1986, § 1; Ord. #22-1987, § 1]
As used in this section:
APPLICANT
Shall mean the person who is the owner of the property where mining or excavation is to take place or is the permissive user of such land.
COMMERCIAL PURPOSES
Shall mean the sale or commercial use of the sand or other product which is excavated.
DISTRICT
Shall mean the Cape-Atlantic Soil Conservation District.
EXCAVATION
Shall mean and include digging or mining and applies to all sand, gravel, earth, soil or mineral products of the soil.
MINING
Shall be synonymous with "excavation" and shall include digging and/or mining and all related activity.
ROAD OR HIGHWAY
Shall mean all State, County and Township streets.
SITE
Shall mean that area which has been licensed pursuant to the provisions of this section.
[Ord. #37, § 1; 1972 Code § 4-3; Ord. #21-1986, § 1; Ord. #22-1987, § 1]
The provisions of this section shall be held to be for the promotion of the public health, safety and general welfare; for the elimination of dust and noise; for the elimination of danger from deep pits in close proximity to residential uses, highways and pedestrian and vehicular traffic; for the conservation of the soil; and for the betterment of the community. The provisions and requirements of this section shall be liberally construed so as to obtain the intended effect.
[Ord. #21-1986, § 1; Ord. #22-1987, § 1; Ord. #001-2004, § 1]
Applications for a license for excavating, digging or mining of sand, soil, gravel or earth within the Township, shall be made to the Township Committee in accordance with the following procedure:
a. 
A completed application on a form prescribed by the Township shall be filed with the Township Clerk together with the prescribed fee. Application form shall include a certification, to the satisfaction of the Township Committee and the Pinelands Commission, if applicable, that all mining, restoration and other activities have been and continue to be conducted in accordance with an approved extraction permit.
b. 
Five copies of the documents hereinafter mentioned shall be filed with the Township Clerk at the time of filing the application for a license:
1. 
A topographic map at a scale of one inch equals 400 feet showing the proposed dimensions, location and operations on the site;
2. 
A U.S.G.S. quadrangle map showing the dimensions of the property and an area of at least 1,000 feet beyond such boundary in all directions;
3. 
The location, size and intended use of all buildings or structures;
4. 
The location of all points of ingress and egress;
5. 
The location of all streams, wetlands and significant vegetation, forest associations and wildlife habitats;
6. 
The location of all existing and proposed streets and right-of-way, including railroad rights-of-way excluding those included within the area to be mined.
7. 
A soils map.
8. 
A reclamation plan which shall include:
(a) 
Method of stockpiling topsoil and over burden;
(b) 
Proposed grading and final elevations;
(c) 
Topsoil material application and preparation;
(d) 
Type, quantity and age of vegetation to be used;
(e) 
Fertilizer application including method and rates;
(f) 
A final grading and planting plan showing planting method and schedules;
(g) 
Maintenance requirement schedule.
9. 
An extraction schedule which depicts the anticipated sequence as well as anticipated length of time that each 20 acre unit of the parcel proposed for extraction will be worked;
10. 
A performance guarantee in accordance with the requirements of Chapter XIX, Land Subdivision, guaranteeing performance of the requirements of this section shall be required prior to issuance of a license.
11. 
Any other information required pursuant to the provisions of subsection 20-5.11 of Chapter XX, Zoning.
c. 
The application shall also disclose, with specificity, each and every other business, commercial or industrial activity which is carried out or proposed to be carried out at the licensed location including, but not limited to, an identification of any retail sales and the nature thereof and the nature of any products which are to be sold from the licensed premises.
d. 
Every five years the applicant shall make an application to the Township Planning Board for amended site plan approval in accordance with the Municipal Land Use Act of the State of New Jersey and the ordinances of the Township. The applicant shall file the following information:
1. 
The aforesaid documents.
2. 
Statement of areas that have been mined and reclaimed during the previous amended site plan approval.
3. 
Submit a certified list of all property owners located within 500 feet of the property where the mining and excavation activity is to occur.
4. 
A certification indicating that the applicant has served notice on all property owners within 500 feet of the subject property that an application for a mining license has been filed with the Township Planning Board for amended site plan approval.
5. 
As-built survey showing topographic conditions of the site including contours of the site both above and below the water surface. Contours shall be at one foot intervals and referenced to the New Jersey Geodetic Control Survey Datum. Said survey shall be prepared by a licensed land surveyor and shall have been completed within the previous three months of application for site plan approval.
6. 
The Township Planning Board shall proceed to consider such application for amended site plan review and shall report its findings to the applicant and to the Township Committee. If the Township Planning Board should deny amended site plan approval, no further action on the application for mining license renewal shall be taken by the Township Committee. If the applicant appeals to the Superior Court of New Jersey from the denial of amended site plan approval and does so within the time period specified by the Rules of Court, and notice of such appeal is filed with the Township Clerk, the application for a mining license shall be placed inactive pending a determination by the Superior Court of New Jersey. If the determination of the Township Planning Board is affirmed by the Superior Court, the applicant for a mining license shall be required to submit a new application for site plan review including any required variance relief as would be required for a new mining facility prior to any action by the Township Committee. In addition to the granting of amended site plan approval, the Township Planning Board may make any other recommendation which it deems appropriate for the consideration of the Township Committee including, but not limited to, a recommendation of either approval or rejection of the mining application. The Township Committee may, in its sole discretion, accept, modify or reject the aforesaid recommendations of the Township Planning Board. The approval or rejection of site plan, however, shall be within the exclusive determination of the Township Planning Board and such determination of the Township Planning Board shall be binding upon the Township Committee.
e. 
Every 30 months an as-built survey showing topographic conditions of the site including contours of the site both above and below the water surface shall be submitted to the Township Engineer for review. The Township Engineer shall report to the Township Committee as to the status of operations at the mining operation prior to the subsequent mining relicense period. Contours shall be at one foot intervals and referenced to the New Jersey Geodetic Control Survey Datum. Said survey shall be prepared by a licensed land surveyor and shall have been completed within the previous three months of submittal.
[Ord. #37, § 3(a); 1972 Code § 4-4.1; Ord. #21-1986, § 1; Ord. #22-1987, § 1]
a. 
A fee shall accompany each license application filed with the Township Clerk. The fee shall be computed on the basis of $100 per acre for each acre located within the tax lot and block where the mining and excavation is to take place as shown on the Official Tax Map of the Township. The minimum fee shall be $1,000 and the maximum fee shall be $2,500.
b. 
In addition to the fees payable under paragraph a above, the applicant for a permit shall pay to the Secretary of the Planning Board any and all fees normally and customarily charged an applicant for site plan approval, which shall include fees for inspections by the Township Engineer as well as for services of other professionals or consultants employed or engaged by the Planning Board.
[Ord. #37, § 6; 1972 Code § 4-6; Ord. #21-1986, § 1; Ord. #22-1987, § 1; Ord. #001-2004, § 1]
a. 
This section shall be enforced by the Township Committee or its designated agent(s). For purposes of ensuring compliance with the provisions of this section, the Township Committee, or its designated agent(s), shall have unlimited access to the premises for the purpose of making inspections and to observe operations.
b. 
In addition to the foregoing, all mining operations shall be subject to inspection by the Township Engineer and the Township Construction Official prior to the initial issuance of the license pursuant to this section and prior to each renewal thereof. Such inspections shall be made within a thirty-day period next preceding the issuance of the license.
c. 
The Township Committee may appoint one or more designated agents charged with the enforcement of this section. Such appointment shall be made by resolution of the Township Committee adopted pursuant to the authority of this section.
d. 
In the event that the Township Committee, Planning Board and/or the Pinelands Commission determine that any such activity deviates from the conditions of the approved permit, the operator of the resource extraction operation shall be immediately notified of the deviation. The notice shall state the nature of the deviation, order the action necessary to correct it, and set forth the date, time and location of a meeting to be held within 10 days of the notice, at which the operator shall present all relevant information concerning the deviation and the action taken or to be taken to correct it. The order to take corrective action shall specify any activity which must be immediately ceased to prevent direct or indirect aggravation of the deviation or to avoid a danger to public health, safety or welfare. Such cessation shall continue until the deviation has been resolved to the satisfaction of the Planning Board and/or the Executive Director of the Pinelands Commission or until an agreement to resolve the deviation has been reached. Failure to resolve a deviation or to adhere to the terms and conditions of any agreement to resolve a deviation shall constitute sufficient cause for revocation of the permit.
e. 
Violations of this section or the approved mining permit shall be punishable by a fine of $500 per day.
[1]
Editor's Note: Former subsection 15-1.7, Pinelands Areas Standards and 15-1.8, Non-Pinelands Area Standards, previously codified herein and containing portions of Ordinance No. 21-1986 and 22-1987, were repealed in their entirety by Ordinance No. 006-2002. See subsection 19-7.15 for mining and excavation standards.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2]
Any mining or excavation operation which has previously been licensed by the Township and in operation on September 1, 1986, where excavation has occurred rendering it impossible or impractical to adhere to the buffer zones established by this section shall, at the time of initial license application pursuant to this section, make special application in the first instance to the Township Planning Board as part of the site plan review for a variance from the strict terms and conditions of this section. In making such an application the usual and customary requirements of obtaining a zoning variance shall apply provided that notice of such application for a variance shall be given to all property owners within 500 feet of the subject property. In establishing an appropriate buffer zone the Planning Board shall consider the interpretation and purpose of this section and shall establish an appropriate buffer zone consistent with the intent and purpose of this section. In no event shall the minimum buffer area be less than 30 feet from the property line; 75 feet from a street; or 500 feet from any public building, church or school. In addition, whenever the Planning Board recommends approval of a buffer zone which is less than 100 feet from the property line and the excavation activities abut a residential use or a residential zone, then a perimeter fence shall be installed along the entire property boundary. The fence shall be a chain link fence not less than six feet in height and which shall be located 10 feet inside the property boundary with appropriate vegetation planted on both sides of such fence within the buffer zone. Once established, such buffer zone shall be adhered to and shall not be invaded for any purpose by the applicant. The establishment of such buffers shall be within the exclusive jurisdiction of the Planning Board as part of the site plan approval process.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2]
No license, application or permit for mining or excavation activity shall be approved by the Township Committee unless the applicant therefor demonstrates to the satisfaction of the Township Committee that approval has been obtained from the Cape-Atlantic Soil Conservation District. Proof of such approval of the Cape-Atlantic Soil Conservation District shall be filed by the applicant with the Township Clerk at the time of submitting an application for a license pursuant to this section. If for any reason during the permit term the excavation activity should cease being licensed for the district, this may be cause for the revocation of the Township license as provided in this section.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2]
All permits issued by the Township pursuant to this Chapter or pursuant to any other ordinance of the Township, shall terminate at midnight January 31, 1987. Any renewal of such permit shall be in accordance with this section for the period commencing February 1, 1987.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2; Ord. #001-2004, § 1]
a. 
The site plan approval issued by the Township Planning Board pursuant to Chapters XV, XIX and XX shall be for a term of five years. Any site plan approval granted prior to December 1, 2003 shall expire November 30, 2007.
b. 
Each license issued pursuant to this Chapter shall be for a one-year term commencing February 1, 1987 and expiring on January 31 of the following year. The fees payable to the Township shall be paid on an annual basis. A fee for any license issued subsequent to February 1, 1987 shall be pro-rated from the date of issuance to the end of the license year.
[1]
Editor's Note: Former subsections 15-1.13 through 15-1.16 pertaining to operational and recreational standards previously codified herein and containing portions of Ordinance Nos. 21-1986 and 22-1987 were repealed in their entirety by Ordinance No. 006-2002. See subsection 19-7.15 for mining and excavation standards.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2]
a. 
In accordance with the restoration plan, appropriate vegetation shall be planted within 12 months of the cessation of the excavating, digging or mining and a planting report shall be filed with the Planning Board Secretary and with the Township Clerk when planting of the permit area is completed. All planting reports shall be certified by the permit holder and the party with which the permit holder contracts for planting, if any.
b. 
No earlier than 30 days and no later than 90 days after planting has been made, the permit holder shall request an inspection of the site by the Township Engineer. Thereafter, the Township Engineer shall inspect and evaluate the vegetation out cover and determine whether the cover is in compliance with the approved planting plan. Upon certification by the Township Engineer that the approved planting has been complied with and that a minimum of 75% stand has been achieved, the Township Committee, may, and in its sole discretion, release the performance bond to the permit holder. In the event that there be a breach of conditions of approval, the Township Committee may, after written notice to the permit holder or his representatives, as required by subsection 15-1.21, take possession of the site and proceed with the rehabilitation of the premises in accordance with the plans submitted for restoration and reclamation.
[Ord. #22-1987, § 2]
a. 
When Permitted. Except as hereinafter provided, mining and excavation activities and the loading of trucks shall occur only between the hours of 6:00 a.m. and 6:00 p.m., prevailing time, Monday through Friday, inclusive. No such activity shall occur on Saturday, Sunday and holidays. For purposes of this section, holidays are declared to be the following: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; and Christmas Day.
b. 
Special Hours of Operation. An individual applicant may make special application for expanded hours of operation taking into consideration the unique characteristics of a particular mining operation and considering adjoining land uses. The application for special hours of operation shall be submitted to the Planning Board in the first instance to be considered in conjunction with site plan approval. The recommendation of the Planning Board with respect to any modification in the hours of operation from those imposed by this section shall be submitted to the Township Committee which may, in its discretion, accept, reject or modify such recommendation.
c. 
Emergency Condition; Exemption from Hours of Operation. The Township Committee, or its designee, shall have the right to grant temporary relief from the restriction on hours of operation so as to accommodate the following conditions:
1. 
Any declared state of emergency which would require one or more of the mining operations within the Township to provide sand, gravel or other material in response to any emergency created by any storm, flood or similar catastrophe (for example, hurricanes, flooding conditions, snow storms and similar occurrences).
2. 
To permit local mining operations to compete for any Federal or State contract which would require the providing of materials on Sundays, holidays or on a twenty-four-hour basis around the clock provided that such exception is for a limited period of time, generally not to exceed 30 days, and provided further that such exemption is necessary in order for one or more mining operators within the Township to remain competitive with other mining operators in other communities or areas of this State.
When such exemption is granted by the Township Committee, it shall specify the time period for which such exemption is granted. If the exemption is granted by a designated agent of the Township Committee, such exemption shall be until the next regularly scheduled meeting of the Township Committee at which time the Township Committee shall consider the matter and take appropriate action.
[Ord. #22-1987, § 2]
Consistent with the objective of this section the noise emanating from mining pit operations shall be reduced to the greatest extent possible taking into consideration the proximity of mining operation to residential development and considering adjoining land uses. As part of the licensing procedure, the Township Committee may, on the recommendation of the Planning Board or on its own motion, require license applicants to utilize all available technology to reduce noise and pollution. Special requirements shall be considered special conditions to be imposed upon the license, such conditions shall be noted on the license and shall be fully enforceable. Any violation shall be cause for the suspension or revocation of the license as provided herein.
[Ord. #22-1987, § 2]
The Township Committee may, on the recommendation of the Planning Board or on its own motion, impose special conditions to any mining license which conditions shall be reasonable and shall be consistent with the objectives of the section as set forth in subsection 15-1.3 hereof. The failure to comply with such special conditions shall be cause for the revocation or suspension of the license or the non-renewal of same and this shall be in addition to any other penalty provided in the section for the violation thereof.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2]
After 10 days' written notice and an opportunity to be heard, the Township Committee may revoke or suspend any permit issued under this section if it finds that the permit holder is violating the terms or provisions of this section.
[Ord. #21-1986, § 2; Ord. #22-1987, § 2]
Any person, firm or corporation violating the provisions of this subsection shall be subject to the General Penalty established in Chapter I, Section 1-5 of this Code. These penalties shall be in addition to any other penalties provided by law including the revocation of the license.
[Ord. #15-1986, § I]
As used in this section:
DREDGE SOIL
Shall mean soil materials and wet excavation materials from meadowland areas and salt water marshes containing highly organic matter, peat high chloride levels, high sulfur content and/or high levels of organic iron.
UPLAND AREAS
Shall mean all lands situate above five-foot elevation based upon mean sea level, including all gravel pits.
[Ord. #15-1986, § II]
No dredge soil shall be dumped, deposited, landfilled, and/or disposed of in any upland area of the Township.
[Ord. #15-1986, § III; Ord. #16-1986, § 1]
a. 
No person, corporation, or other legal entity shall haul or transport dredge soil within the confines of the Township without having first obtained a permit from the Township Committee.
b. 
No person, corporation or other legal entity shall dump, deposit landfill and/or dispose of any dredge soil in any area of the Township below elevation five foot based upon mean sea level without having first obtained a permit therefor from the Township Committee.
c. 
Upon proper application, the Township Committee shall determine whether a permit to haul and/or dump dredge soil in the Township shall be granted to the applicant. The applicant shall submit a written application on a form to be provided by the office of the Township Clerk. Additionally, the applicant shall provide to the Township Committee an Environmental Impact Statement prepared by a licensed professional engineer or environmentalist of the State of New Jersey which shall set forth, inter alia, the following:
1. 
The impact upon the area from which the dredge soil is to be removed if same is situate within the Township;
2. 
The impact upon the area upon which the dredge soil is to be dumped, deposited, landfilled or otherwise disposed of, if same lies within the confines of the Township.
d. 
The applicant shall provide notice to all property owners within 500 feet of the premises from which the dredge soil is to be removed, or to all persons within 500 feet of the area upon which the dredge soil is to be deposited, or both if applicable, not less than 10 days prior to consideration of the application by the Township Committee.
e. 
Upon receipt of proof of adequate notice to the surrounding property owners and upon receipt of proper application and Environmental Impact Statement as required hereunder, the Township Committee will hold a hearing with regard to the proposed application. The Township Committee shall determine whether the proposed hauling and/or dumping of dredge soil shall have a detrimental effect upon the health, safety and welfare of the people of the Township or any of them. In the event that the Township Committee shall determine that the proposed hauling and/or dumping of dredge soil shall have a deleterious effect upon the health, safety and/or welfare of the people of the Township or any of them, it shall deny the permit. In the event that the Township Committee shall make a finding that the proposed hauling and/or dumping shall not have a deleterious effect upon the health, safety and/or welfare of the people of the Township or any of them, it may, in its sole discretion grant the proposed permit. The Township Committee shall determine the time period which the requested permit will cover.
f. 
The Township Committee may, in its discretion, impose conditions or restrictions upon any permit issued pursuant hereto.
[Ord. #15-1986, § IV]
Upon the granting of a permit by the Township Committee the applicant shall pay to the Township Clerk a fee for each permit which he is granted pursuant to the following schedule:
a. 
$2 per cubic yard.
[Ord. #16-1986, § 2]
Any person, corporation or other legal entity applying for a permit pursuant to this section shall execute and file with the Township Clerk, in a form satisfactory to the Township, a consent authorizing the appropriate officials and representatives of the Township to enter upon and inspect any vehicles used in the transportation of such material and upon any lands or premises onto which such material is being deposited, for the purpose of ensuring that there is full compliance with this section, as amended and supplemented, and to ensure strict compliance with the Environmental Impact Study filed pursuant hereto, and to ensure no environmental hazard or threat which would be contrary to the public health, safety or welfare. There shall be no limitation on the number of such inspections which may be carried out during the term of the permit.
Any person violating any provision of this section shall be subject to the General Penalty established in Chapter I, Section 1-5 of this Code. [New]
[Ord. #15-1986, § VI]
The Township Committee may, in its sole discretion waive any requirement contained herein.