Township of West Orange, NJ
Essex County
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[1972 Code § 23-1; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II[1]]
The Township Council has determined that the unregulated and uncontrolled relocation, filling, excavation and removal of soil on a large scale by developers and excavators has resulted in conditions detrimental to the public safety, health and general welfare substantially hampering and deterring the efforts of the Township to effectuate the general purpose of municipal planning; and that the continuation of the unregulated and uncontrolled relocation, filling, excavation and removal of soil will result in serious irreparable damage to the public welfare by reason of: consequent soil erosion by water and wind; inadequate and improper surface water drainage; decrease in or destruction of the fertility of soil; removal of lateral support of abutting streets, lands and premises; creation of dust storms and mosquito breeding places; creation of dangerous depressions or pits; deterioration of property values; rendering of lands unfit or unsuitable to their most appropriate uses; and creation of other factors and elements hampering and deterring the coordinated, adjusted and harmonious physical development of the Township.
[1]
Editor's Note: The power to regulate soil removal is included in the general Police powers granted by N.J.S.A. 69A-29, 30.
[1972 Code § 23-2; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
As used in this chapter:
DEVELOPER
Shall mean any person who, either directly or through an agent or independent contractor, engages or intends to engage in land subdivision or in the construction of two or more dwelling houses, business or industrial buildings, in any subdivision, for the purpose of sale to occupancy by another person or persons.
EXCAVATOR
Shall mean any person who moves soil:
a. 
In or upon more than 12,000 square feet of land area in a district zoned for residential use;
b. 
In or upon more than 10,000 square feet of land area in all zones other than residential;
c. 
In excess of 300 cubic yards to, or from any land area within the Township.
LOT
Shall mean any parcel of land or portion thereof, the boundary lines of which can be ascertained by reference to the maps and records, or either, in the office of the Tax Assessor of the Township, or in the office of the Essex County Clerk. For the purposes of this chapter, a lot shall also be deemed to be any contiguous parcels of land under common ownership, which ownership can be ascertained by reference to the maps and records, or either, in the office of the Tax Assessor of the Township or in the office of the Essex County Clerk.
MOVE
Shall mean to dig, excavate, remove, deposit, place, fill, grade, re-grade, level, or otherwise alter or change the location or contour, transport, or supply. This term shall not be construed to include plowing, spading, cultivating, harrowing or discing of soil, or any other operation usually and ordinarily associated with the tilling of soil for agricultural or horticultural purposes.
OWNER
Shall mean any person seized in fee simple of any lot, or having such other interest or estate therein as will permit exercise of effective possession thereof or dominion thereover.
PLANNING BOARD
Shall mean the Board that considers a request for a Soil Removal Permit alone or when accompanied by a site plan or subdivision application under the jurisdiction of the Planning Board as defined by the Municipal Land Use Law.
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 2% of more, by weight, or organic matter and has the ability to support vegetation.
ZONING BOARD OF ADJUSTMENT
Shall mean the Board that considers a request for a Soil Removal Permit when combined with an application seeking a variance within the jurisdiction of the Zoning Board of Adjustment as defined by the Municipal Land Use Law.
[1972 Code § 23-3.1; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
No owner of any lot in the Township shall cause, allow, permit or suffer any soil in or upon the lot to be moved by any developer or excavator until the developer or excavator has first obtained a Soil Removal Permit therefor.
The matter of reviewing and considering all applications for Soil Removal Permits is hereby referred to the Planning Board of the Township or the Zoning Board of Adjustment.
No developer and no excavator shall move or cause, allow, permit or suffer to be moved, any soil in or upon any lot in the Township unless and until a Soil Removal Permit therefor shall first have been issued by the Secretary of the Planning Board or the Zoning Board of Adjustment. No Soil Removal Permit shall be issued until the Planning Board or the Zoning Board of Adjustment has approved the permit application and submitted its report and recommendation to the Secretary of the Planning Board or the Zoning Board of Adjustment.
[1972 Code § 23-3.2; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
The procedure for applying for and issuance of a Soil Removal Permit shall be as follows:
a. 
Form of Application. On forms prescribed and supplied by the Planning Board or the Zoning Board of Adjustment, the applicant shall set forth, in duplicate:
1. 
His or her name and address.
2. 
The description of the lands in question.
3. 
The name and address of the owner of the lands.
4. 
The purpose or reason for moving the soil and whether it will be done in connection with a proposed subdivision; if so, the date of filing of the application for subdivision.
5. 
The kind and quantity in cubic yards of soil to be moved.
6. 
In case of removal, the place to which the soil is to be removed, and the kind and quantity of soil to be removed.
7. 
The proposed date of completion of the work.
8. 
A certification that he/she has had a licensed land surveyor place or caused to be placed stakes at each corner of the lands from which soil is to be removed, and further that he/she has had a licensed professional engineer place or caused to be placed grade stakes at the existing elevation points designated on the topographical map pursuant to the provisions of paragraph c of this section, clearly marked to indicate the soil cuts or fill.
9. 
Other pertinent data which the Planning Board or the Zoning Board of Adjustment may, by resolution, require.
b. 
Signatures. The application shall bear the signature of the applicant and the endorsement of the owner or owners of the lands signifying approval of the application, consent to the applicant to perform the proposed work, and consent to the Township, in the event of failure of the applicant to do so, to cause the proposed work to be completed or otherwise terminated in keeping with the purposes and objectives of this chapter.
c. 
Topographical Map. Accompanying the application shall be eight prints of a topographical map of the lot with minimum two-foot contour intervals upon which the proposed soil moving operations are to be conducted and of all surrounding lands within 200 feet of the perimeter of the lot, prepared and certified by a licensed professional civil engineer or land surveyor of the State of New Jersey, on a scale of not less than one inch to 100 feet and referring to United States Coast and Geodetic Survey data, showing both as to the lot and as to all of the surrounding lands.
1. 
The dimensions of the lot, and the lot and block number of the lot and of each lot in the surrounding lands and the present ownership of each as shown on the tax assessment map of the Township.
2. 
The existing elevations of all lands on the 100-foot grid layout.
3. 
The existing elevations of all buildings, structures, streets, streams, bodies of water and watercourses, natural or artificial.
4. 
All existing surface and subsurface water drainage conditions and provisions therefor.
5. 
All wooded areas and all trees having a diameter of six inches or more at the base.
6. 
The limits of the area or areas within the lot or lots in question within which the soil moving operations are to be conducted, and the existing elevations of the limits at intervals of not more than 100 feet.
7. 
The proposed final elevation at each point where existing elevations shown on the map are to be changed as a result of completion of the proposed work.
8. 
Proposed slopes showing a minimum of two-foot contour intervals and lateral supports at the limits of the area upon completion of the soil moving operations.
9. 
Proposed provisions and facilities for surface water drainage and where applicable channels of any streams, bodies of water and watercourses, natural or artificial, including detailed cross sections showing proposed channel widths, bank slopes, and method of erosion and control thereof.
10. 
Accurate cross sections showing the locations and quantities, in cubic yards of soil to be moved.
11. 
All proposed elevations in enclosed rectangular boxes, and all existing elevations to be indicated without any kind of enclosure.
12. 
Other pertinent data which the Planning Board or the Zoning Board of Adjustment may, by resolution, require.
d. 
Permit Fee. The application shall be submitted to the Secretary of the Planning Board or the Zoning Board of Adjustment with a permit fee to the order of the Township in an amount computed at the rate of $0.05 per cubic yard multiplied by the number of cubic yards to be moved, as stated in the application and certified on the topographical map. In no event shall the fee be less than $125. In the event of refusal to issue a Soil Removal Permit, as hereinafter provided in this section, the aforesaid fee paid by the applicant shall be refunded, except that all monies and costs incurred by the Township for engineering surveys and reports, inspection fees and legal fees shall be retained by the Township and the balance remaining shall be refunded to the applicant, together with a statement of the costs and expenses incurred by the Township in the processing of the soil application.
e. 
Inspection of Site. The Township Engineer shall make an inspection of the site from which soil is to be moved and shall make such engineering studies as may be required to determine the effect of the removal of soil from the location as it relates to:
1. 
Soil erosion by water and wind.
2. 
Surface and subsurface water drainage.
3. 
Soil fertility.
4. 
Lateral support of abutting streets and lands.
5. 
Public health and safety.
6. 
Sidewalks, curbs, roads, storm sewers, etc.
7. 
Such other factors as may bear upon or relate to the coordinated, adjusted and harmonious physical development of the Township.
The Township Engineer shall also inspect the site to determine whether stakes have been placed on each corner thereof and whether grade stakes have been placed at the existing elevation points designated on the topographical map pursuant to the provisions of paragraph a of this section.
f. 
Hearing. The Planning Board or the Zoning Board of Adjustment shall, within a reasonable time after receipt of the application, fix a date for a hearing for the purpose of considering the application and shall give to the applicant, by registered mail, notice of the time and place of the hearing. The applicant shall, at least 10 days prior to the date appointed for the hearing, serve written notice either in person or by registered mail upon such persons as are shown on the Township tax records to be the owner so the lots within 200 feet of the property in question. The applicant shall, at the hearing, present to the Planning Board or the Zoning Board of Adjustment satisfactory proof, in affidavit form of the service of the notices.
g. 
Factors to Be Considered in Determining Application. In considering the application, the Planning Board and/or the Zoning Board of Adjustment shall be guided by the general purpose of municipal planning, and shall take into consideration the following factors:
1. 
Soil erosion by water and wind.
2. 
Surface and subsurface water drainage.
3. 
Soil fertility.
4. 
Lateral support of abutting streets and lands.
5. 
Public health and safety.
6. 
Land values and uses.
7. 
Effects on sidewalks, curbs, roads, storm sewers, etc.
8. 
Other factors which may bear upon or relate to the coordinated, adjusted, and harmonious physical development of the Township.
h. 
Decision. The Planning Board or the Zoning Board of Adjustment shall review and consider the application and shall render its report and recommendation to the Secretary of the Planning Board or the Zoning Board of Adjustment, who shall grant or refuse the permit in accordance with the recommendation. The report and recommendation shall be made within 60 days after the receipt of the application.
i. 
Appeal. In the event of refusal by the Planning Board, the applicant may, not later than 30 days after the date of such refusal, appeal to the Township Council. The Township Council may by a majority vote of the members present sustain or by a 2/3 vote of the entire membership overrule the recommendations of the Planning Board.
[1972 Code § 23-3.3; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
a. 
Notice of Appeal. In the event that the Planning Board or Zoning Board of Adjustment recommends approval of the Soil Removal Permit application, the Secretary of the Planning Board or Zoning Board of Adjustment shall forthwith give notice to the applicant of the action of the Planning Board or Zoning Board of Adjustment, and further, the amount of the performance bond required as set forth in paragraph c of this section. In the event that the applicant fails to post the required performance bond within 60 days of the notice, then the recommendation of the Planning Board or Zoning Board of Adjustment shall be automatically rescinded.
b. 
Cash and Performance Bond Required. No Soil Removal Permit shall be issued unless the applicant therefor shall have posted with the Township a cash and performance bond in form and with surety acceptable to the Township in such amount as the Planning Board or Zoning Board of Adjustment shall determine, conditioned upon full and faithful performance by the principal, within the time specified in the application, of all the proposed work in accordance with the provisions of this chapter and of the Soil Removal Permit issued pursuant hereto.
c. 
Determination of Amount of Bond. The amount of the bond shall be 50% cash and 50% surety as determined at the rate of not less than $0.10 per cubic yard and not in excess of $0.50 per cubic yard of the amount of soil to be moved. In no event shall the cash bond be less than the principal amount of $2,000.
In ascertaining the rate upon which to compute the amount of the bond, the Planning Board or Zoning Board of Adjustment shall take into consideration such factors as may bear upon the facility with which the proposed work may be performed including, but not limited to, the type of character of soil, the extent of the area over which the soil moving operations are to be conducted, the extent and depth of the various cuts and fills, the extent to which the area of operations is wooded, the proximity of the proposed operations to streets, buildings, structures, natural or artificial streams or watercourses, and general drainage conditions.
d. 
Written Consent of Surety. Before the holder of any Soil Removal Permit shall proceed before the Planning Board or Zoning Board of Adjustment with any application for any amendment or alteration of the terms and conditions of any outstanding Soil Removal Permit, there shall be submitted to the Planning Board or Zoning Board of Adjustment the written consent of the surety on the bond approving the application for amendment or alteration and consenting to extension of the bond coverage thereto.
e. 
Release of Cash or Surety Bonds. Applications for the release of any cash or surety bonds in accordance with the terms of this chapter or the resolutions of the Planning Board or Zoning Board of Adjustment shall be accompanied by an affidavit stating that the soil moving operation has been completed in accordance with the application and all plans, maps and other data filed therewith, and in accordance with all resolutions and conditions therein adopted by the Planning Board or Zoning Board of Adjustment. The affidavit shall be executed by a licensed professional or civil engineer of the State of New Jersey.
[1972 Code § 23-3.4; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
The Soil Removal Permit shall be in such form as may be prescribed by the Planning Board or Zoning Board of Adjustment. If the application for the Soil Removal Permit is pending before the Planning Board, then the Soil Removal Permit shall be signed by the Secretary of the Planning Board and either the Chairman of the Planning Board or the Chairman of the Soil Committee of the Planning Board and it shall contain any special conditions set forth in the recommendation.
If the application for the Soil Removal Permit is pending before the Zoning Board of Adjustment, then the Soil Removal Permit shall be signed by the Secretary of the Zoning Board of Adjustment and either the Chairman of the Zoning Board of Adjustment or the Chairman of the Soil Committee of the Zoning Board of Adjustment and it shall contain any special conditions set forth in the recommendation.
The permit shall be dated as of the date it is actually issued, and the term of the permit shall not exceed one year. All permits shall automatically expire on the termination date, unless application for renewal has been made and approved in writing, extending the permit.
[1972 Code § 23-4.1; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
No person to whom a Soil Removal Permit has been issued shall:
a. 
Conduct or maintain on the premises any sand, gravel, or similar kind of pit, any sand or gravel washing or screening machinery or equipment, any business or industry not permitted in the district in which the premises are located and classified by Chapter 25, Land Use Regulations as amended and supplemented, or any endeavor or enterprise other than the grading or regrading of the premises in accordance with the provisions of the Permit, and where applicable, the necessary disposal of soil incidental to the grading or regrading.
b. 
Conduct or maintain any soil moving operations without having first made adequate provision by means of road soil, or otherwise, for the laying of dust incidental to the use of vehicles, machinery and equipment on the lands described in the Soil Permit.
c. 
Neglect to dispose of, on or before the completion date stated in the application any partially, or wholly excavated boulders or other incombustible debris resulting from the soil moving operations by burial or removal, and any partially or wholly excavated stumps felled or uprooted trees or other combustible debris resulting from the soil moving operations, by combustion or removal from the premises, provided the combustion is otherwise authorized and legal under existing laws.
d. 
Conduct any soil moving operations beyond the expiration date as set forth in the Soil Removal Permit or extended expiration date as may duly be granted by the Planning Board.
[1972 Code § 23-4.2; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
a. 
Whenever any developer or excavator shall move topsoil in or upon any lot, provision shall be made for the storage of the topsoil within the boundary lines of the lot.
b. 
Except as hereinafter provided, all of the topsoil so stored shall be uniformly replaced over the entire area or surface of the lot on or before the completion date set forth in the Soil Permit, so that the final grade or grades of the replaced topsoil shall be in accordance with the proposed final grades shown on the topographical map.
c. 
No developer or excavator shall remove to any point beyond the boundary lines of the lot any topsoil whatsoever unless and until topsoil not inferior in quality to that to be removed shall first have been re-placed uniformly to a depth of not less than six inches, measured from the proposed final grades as shown on the topographical map, over the entire surface or area of the lot, excepting only such portions thereof as shall be or shall have become, since the date of filing of the topographical map, permanently covered by a building or structure, street pavement, curb, sidewalk, driveway or other paved area, or by any body of water or waterway. In no event shall the developer or excavator remove from the lot more topsoil than that comprising the surplus or excess remaining after the replacement of the topsoil as aforesaid.
[1972 Code § 23-4.3; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
No developer or excavator shall at any time in the course of the work dig or excavate more than six inches below the proposed final grades as shown on the topographical map unless:
a. 
The Soil Removal Permit specifies otherwise and the performance bond makes specific provision for replacement, on or before the completion date set forth in the Soil Removal Permit, of soil of sufficient quantity and kind to restore the final grades to those shown on the topographical map.
b. 
After issuance of the Soil Removal Permit, the developer or excavator, before digging or excavating below the minimum level, shall apply to the Planning Board or Zoning Board of Adjustment and be granted an amendment in the application and topographical map then in effect, which amendment may be granted upon such terms as the Planning Board or the Zoning Board of Adjustment may deem necessary to assure adherence to the purpose and objectives of this chapter.
[1972 Code § 23-4.4; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
No developer or excavator shall deposit soil upon, fill in, or raise the grade of any lot without first making provision for:
a. 
The use in the work of soil or such other materials as will not result in deviation from the proposed final grades or the uniformity thereof by reason of abnormal shrinkage or settlement.
b. 
The collection and storage upon the lot of the original topsoil to the end that the topsoil shall not be buried beneath soil or other material of inferior quality, and the uniform replacement of the topsoil so stored over the entire area or surface of the fill soil or other material so that the final grade or grades of replaced topsoil shall be in accordance with the proposed final grades shown on the topographical map. In the event that such provision is not practicable, provision shall be made for the uniform placement over the entire area or surface of the fill soil or other material, excepting only such portions thereof as shall be or shall have become permanently covered by a building or structure, street pavement, curb, sidewalk, driveway or other paved area, or by any body of water or waterway, of a layer of topsoil not inferior in quality to that of the original topsoil, to a depth of not less than six inches, measured from the proposed final grades as shown on the topographical map.
[1972 Code § 23-5; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
Nothing in this chapter shall be construed to affect or apply to any person engaged in the moving of topsoil in and upon lands enrolled in the soil conservation program of the Northeastern Jersey Soil Conservation District of the United States Department of Agriculture Soil Conservation Service, and for which lands an approved farm plan has been established by the agency, provided that all soil-moving operations in and upon the lands are performed in accordance with the approved farm plan.
[1972 Code § 23-6; Ord. No. 263-73 § 2; Ord. No. 2256-10 § II]
For the purpose of administering and enforcing this chapter, any duly authorized officer, agent or employee of the Township shall have the right to enter into and upon any lands in or upon which soil moving operations are being conducted to examine and inspect the lands.