[Amended 2-9-2010 by Order
10-023; 4-13-2010 by Order 10-061]
A.
The purpose of this article is to regulate sand and gravel and other quarrying operations, including the removal, processing and storage of topsoil or loam, rock, sand, gravel and other earth materials (hereinafter "mineral extraction"). The Planning Board shall follow the site plan review requirements in Article 8 when more than 25,000 square feet of gross area is to be developed, as defined in Article 3. (See definition of "development.")
B.
The removal of stone, sand and gravel from banks or quarries and
the processing of said materials shall not be permitted without the
approval of the Planning Board. The removal of loam, topsoil or sod
is permitted in any of the Town's zoning districts. Such material
may be hauled away to other locations, either inside or outside the
Town of Windham. The Planning Board may approve the removal and processing
of such materials after public hearing thereon, and a finding that
such removal and processing will be performed subject to the conditions
and safeguards set forth in this article.
C.
These regulations are intended to protect the quality and quantity
of the groundwater and surface waters, to control erosion, to provide
for the reclamation and rehabilitation of mineral extraction sites
so that future uses shall be compatible with the surrounding neighborhood,
and to minimize any adverse impact of such pit operations on adjacent
and nearby properties.
A.
Existing pits, expansions over five acres, loam stripping exceeding
1/4 of an acre, and new operations which are started or approved after
the effective date of this amendment shall be governed by this article.
This article applies to all private, public and municipal mineral
extraction operations within the Town of Windham.
B.
Whereas the Town of Windham recognizes that exceptions to this article
may become necessary in a time of great need, such as a natural disaster
necessitating ready and immediate access to sand, gravel and other
earth materials, provision is herein made for the temporary suspension
of the application process included herein if approval for said suspension
is granted by a majority of the Town Council.
C.
The applicant shall pay a processing fee and establish a peer review
escrow account as set by the Town Council in the Windham Fee Schedule.
A.
The following
activities are exempt from the provisions of this article of this
chapter:
(1)
Excavation whose sole purpose is to determine the nature or
extent of mineral resources. It is accomplished by hand sampling,
test boring, or other methods which create minimal disturbance. Test
holes shall be filled in immediately after use.
(2)
The removal of less than 200 cubic yards of material (except
topsoil) in any one year, provided such removal does not disturb more
than one acre of land.
(3)
The removal of any amount of sand, gravel, or loam from a site
is an exempt activity if it is part of normal farm operations, or
the sand, gravel, or loam is being moved to a contiguous site having
the same ownership or is being used by the owner for their own use.
(4)
Excavation or grading which is undertaken as part of and subordinate
to an approved construction project such as a subdivision, permitted
structure or road, unless it is intended to circumvent this article.
B.
Existing
pits may only expand in conformance with this article. The owner(s)
must file a plot plan within 90 days of the effective date of this
article, showing the active part of the pit, as distinguished from
those slopes and setbacks existing at the time of adoption of this
article, which shall be exempt.
All applicants shall submit an application to the Planning Department. The Planning Department shall verify that the application is complete prior to placing the applicant on an agenda to appear before the Planning Board. Approval from the Planning Board is required prior to the applicant initiating any phase for which the applicant seeks approval. This information is in addition to information provided as part of the site plan review criteria required under Article 8 et seq. The following information shall be submitted to the Planning Board when applying for a permit. All plans shall be drawn to a scale not greater than one inch equals 100 feet.
A.
The location of existing wells, streams, springs, intermittent streams
and wet areas. The depth of groundwater at the site of the proposed
excavation as determined by test borings shall substantiate that groundwater
will not be disturbed.
B.
Contours of the land within and extending beyond the boundaries of
the parcel for 200 feet at five-foot intervals, or at intervals acceptable
for a MaineDEP permit application, or at intervals required by the
Planning Board for mineral extraction operations of under five acres.
C.
The location of all proposed hazardous materials storage areas. Hazardous
materials (including equipment fuel, petroleum products, oil, hydraulic
fluids, etc.) shall be located in an impervious containment area designed
to contain spills and provide for secondary containment.
D.
Plans for controlling access to the site. At a minimum, a solid gate
with a lock shall be located at any entrances or exits.
E.
Provisions for shielding the excavation from surrounding properties
with adequate screening or buffering for a visual and acoustical buffer
between the project and adjacent properties if a natural buffer does
not exist. Signs and lighting shall be designed to prevent public
nuisance conditions or undesirable aesthetic effects on the neighborhood.
F.
A final rehabilitation plan, including seeding, planting, drainage,
erosion control, final grading, shaping, and surface stabilization
plans showing contours at five-foot intervals. Plans shall be approved
by the Cumberland County Soil and Water Conservation District, a licensed
forester, a certified soils scientist or a licensed Maine civil professional
engineer. The proposed use of the property at completion of the project
shall be described. A time schedule for rehabilitation shall be included.
Any project which is proposed to operate for more than five years
shall be designed to operate in phases, if possible.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
G.
Applicable state and/or federal permits shall be required prior to
final approval from the Planning Board. For applications requiring
site plan review, the Planning Board shall have the authority to review
the applicant's technical capacity to comply with state and federal
permitting requirements, including those for temporary or permanent
drainage and sedimentation control, storage and containment of any
materials, noise, vibration levels, and dust levels and measures for
minimization.
H.
Hours of operation. These shall be compatible with the surrounding
neighborhood and shall minimize any adverse impact of the pit operations
on adjacent and nearby properties.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Planning Board may impose such conditions as are necessary
to safeguard the health, safety and welfare of the community. Where
considered necessary by the Planning Board, the plan required to accompany
the application shall be prepared by a licensed Maine civil professional
engineer and/or Maine certified geologist at the applicant's expense.
The plan review shall take into consideration at least the following:
[Amended 4-9-2019 by Order
19-053]
Mineral extraction operations within the Town of Windham must
comply with the applicable performance standards below unless a variance
is first obtained from the Maine Department of Environmental Protection
as set forth in Maine Statutes Title 38, Section 490, and approved
by the Planning Board. Any existing mineral extraction operation shall
be required to meet the performance standards contained within the
version of this chapter under which the mineral extraction operation
was approved.
A.
Solid waste. Solid waste, including stumps, wood waste and land clearing
debris generated on the affected land, must be disposed of in accordance
with 38 M.R.S.A. Chapter 13, including any rules adopted to implement
those laws.
B.
Groundwater protection.
[Amended 4-23-2019 by Order 19-068]
(1)
A 200-foot separation must be maintained between any excavation
and any private drinking water supply that is a point-driven or dug
well and was in existence prior to that excavation.
(2)
A 100-foot separation must be maintained between any excavation
and any private drinking water supply that is drilled into saturated
bedrock and was in existence prior to that excavation.
(3)
Separation must be maintained between any affected land and
any public drinking water source as follows:
(a)
For systems serving a population of 500 persons or fewer, the
minimum separation must be 300 feet;
(b)
For systems serving a population of 501 persons up to 1,000
persons, the separation must be 500 feet;
(c)
For systems serving a population of more than 1,000 persons,
the separation must be 1,000 feet; and
(4)
Refueling operations, oil changes and other maintenance activities
requiring the handling of fuels, including but not limited to petroleum
products, hydraulic fluids, and other on-site activity involving the
storage or use of products that, if spilled, may contaminate groundwater,
must be conducted in accordance with the Department of Environmental
Protection's spill prevention, control and countermeasures plan. Petroleum
products and other substances that may contaminate groundwater must
be stored and handled over impervious surfaces that are designed to
contain spills. The spill prevention, control and countermeasures
plan must be posted at the site.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(5)
Excavation may not occur within five feet of the seasonal high-water
table unless the operator first obtains a variance from the Maine
Department of Environmental Protection. A bench mark sufficient to
verify the location of the seasonal high-water table must be established
and at least one test pit or monitoring well must be established on
each five acres of unreclaimed land and maintained by the operator
to demonstrate separation above groundwater.
(6)
In the event of excavation below the seasonal high-water table,
the operator of a mining activity that affects a public drinking water
source or private drinking water supply by excavation activities causing
contamination, interruption or diminution must restore or replace
the affected water supply with an alternate source of water, adequate
in quantity and quality for the purpose served by the supply. This
subsection is not intended to replace any independent action that
a person whose water supply is affected by a mining activity may have.
The applicant shall conduct and report all baseline and routine compliance
monitoring (i.e., water levels and water quality monitoring) required
by MaineDEP Title 38 Section 490 to the Planning Board for review
and approval prior to beginning mineral extraction activities and
on an annual basis after mineral extraction activities have begun.
Water level and water quality monitoring should be conducted by a
third party working under the guidance of a certified geologist or
professional engineer.
(7)
In the event of excavation below the seasonal high-water table,
a 300-foot separation must be maintained between the permitted limit
of excavation and any predevelopment private drinking water supply,
and a 1,000-foot separation must be maintained between the permitted
limit of excavation and any predevelopment public drinking water source
or area previously designated for potential use as a public drinking
water source by a municipality or private water company.
C.
Protected natural resources.
(1)
A natural buffer strip must be maintained between the working
edge of an excavation and any protected natural resource as defined
in the Comprehensive Plan and by the Maine Department of Environmental
Protection. Excavation activities conducted within 100 feet of a protected
natural resource must comply with the applicable permit requirement
of the Maine Department of Environmental Protection. The width requirements
for natural buffer strips are as follows:
(a)
A natural buffer strip at least 100 feet wide must be maintained
between the working edge of the excavation and the normal high-water
line of a great pond classified as GPA or a river flowing to a great
pond classified as GPA.
(b)
A natural buffer strip at least 75 feet wide must be maintained
between the working edge of the excavation and any other water body,
river, stream, brook, or significant wildlife habitat contained within
a freshwater wetland or a freshwater wetland consisting of or containing:
(2)
For purposes of this subsection, the width of a natural buffer
strip is measured from the upland edge of floodplain wetlands; if
no floodplain wetlands are present, the width of the natural buffer
strip is measured from the normal high-water mark of a great pond,
river, stream or brook or the upland edge of a freshwater wetland.
D.
Natural buffer strip. Existing vegetation within a natural buffer
strip may not be removed. If vegetation within the natural buffer
strip has been removed or disturbed by the excavation or activities
related to the excavation before submission of a notice of intent
to comply, that vegetation must be reestablished as soon as practicable
after filing the notice of intent to comply.
E.
Public and private roads.
(1)
A natural buffer strip must be maintained between the working
edge of an excavation and a road or right-of-way as follows:
(a)
A natural buffer strip at least 150 feet wide must be maintained
between the working edge of an excavation and a road designated as
a scenic highway by the Department of Transportation.
(b)
A natural buffer strip at least 100 feet wide must be maintained
between the working edge of an excavation and any public road not
designated as a scenic highway by the Department of Transportation.
(c)
A natural buffer strip at least 25 feet wide must be maintained
between the working edge of a topsoil excavation and any public road
not designated as a scenic highway by the Department of Transportation.
(d)
A natural buffer strip at least 50 feet wide must be maintained
between the working edge of an excavation and any public right-of-way
that does not contain a road. The width of a natural buffer strip
adjacent to a public road or right-of-way may be reduced if there
is a public entity or entities with authority to grant permission
and the applicant receives permission from each authority in writing.
(e)
A natural buffer strip at least 50 feet wide must be maintained
between the working edge of an excavation and any private road or
right-of-way. If a private road is contained within a wider right-of-way,
the buffer is measured from the edge of the right-of-way. The width
of the natural buffer strip adjacent to a private road may be reduced
if the applicant receives written permission from the person or persons
having a right-of-way over the private road.
F.
Property boundary.
(1)
Excavations for borrow, clay, topsoil or silt. A natural buffer
strip at least 50 feet wide must be maintained between any excavation
and any property boundary. A natural buffer strip at least 25 feet
wide must be maintained between any topsoil excavation and a property
boundary. These distances may be reduced to not less than 10 feet
with the written permission of the affected property owner or owners,
except that the distance may not be reduced to less than 25 feet from
the boundary of a cemetery or burial ground. The buffer strip between
excavations owned by abutting owners may be eliminated with the abutter's
written permission, provided the elimination of this buffer strip
does not increase the runoff from either excavation across the property
boundary. Any written permission to reduce a buffer must provide that
it remains in effect until mining ceases and must be recorded in the
registry of deeds. All property boundaries must be identified in the
field by markings such as metal posts, stakes, flagging or blazed
trees.
(2)
Quarries. A natural buffer strip at least 100 feet wide must
be maintained between any excavation and any property boundary. These
distances may be reduced to not less than 10 feet with the written
permission of the affected property owner or owners, except that the
distance may not be reduced to less than 25 feet from the boundary
of a cemetery or burial ground. The buffer strip between excavations
owned by abutting owners may be eliminated with the abutter's written
permission, provided the elimination of this buffer strip does not
increase the runoff from either excavation across the property boundary.
Any written permission to reduce a buffer must provide that it remains
in effect until mining ceases and must be recorded in the registry
of deeds. All property boundaries must be identified in the field
by markings such as metal posts, stakes, flagging or blazed trees.
G.
Excavation, except for drainageways, shall be at least 200 feet from
any existing residence.
H.
Erosion and sedimentation control. A working pit must be naturally internally drained at all times unless a variance is obtained from the Maine Department of Environmental Protection. In addition to § 120-812F, the following standards apply:
(1)
The area of a working pit shall not exceed 10 acres.
(2)
Stockpiles consisting of topsoil to be used for reclamation
must be seeded, mulched or otherwise temporarily stabilized.
(3)
Sediment may not leave the parcel or enter a protected natural
resource.
(4)
Grubbed areas not internally drained must be stabilized.
(5)
Erosion and sedimentation control for access roads must be conducted
in accordance with the department's best management practices for
erosion and sedimentation control.
I.
Water quality protection and stormwater management. Surface water discharges from areas not required to be naturally internally drained may not be increased as a result of water runoff and shall comply with § 120-812E.
J.
Traffic.
(1)
Any excavation activity that generates 100 or more passenger
car equivalents at peak hour must comply with the applicable permit
requirements under 23 M.R.S.A. § 704-A.
(2)
Existing streets expected to carry traffic generated by the
development shall have a paved surface and have the capacity or be
suitably improved to accommodate the traffic generated by the development.
(3)
No new mineral extraction operations shall be permitted to access
a private road or private way that provides access to a public street
to more than 100 dwelling units.
L.
Dust.
(1)
Dust generated by activities at the excavation site, including
dust associated with traffic to and from the excavation site, must
be controlled by sweeping, paving, watering or other best management
practices for control of fugitive emissions. Except within the direct
watershed of a lake most at risk from new development as designated
in the Maine Department of Environmental Protection's Chapter 502,
Direct Watersheds of Lakes Most at Risk from New Development, and
Urban Impaired Streams,[2] dust-control methods may include the application of calcium
chloride, providing the manufacturer's labeling guidelines are followed.
[2]
Editor's Note: See 06-096 CMR Ch. 502.
(2)
Access driveways shall be paved a minimum of 100 feet from the
intersection with the public or private street.
(3)
Loaded vehicles shall be suitably covered to prevent dust and
contents from spilling or blowing from the load.
M.
Blasting. The operator must ensure that blasting is conducted in
accordance with Maine Statutes as set forth in Title 25, Chapter 318,
and 38 M.R.S.A. § 490-Z, Performance standards for quarries.
(1)
Production blasting may not occur in the period between 4:00
p.m. and 11:00 a.m. Production blasting is not allowed in the daytime
on Sunday.
(2)
On the day of the scheduled blast, or at a greater time requested
by a person listed below, in advance of a scheduled blast the operator
must notify:
(3)
A preblast survey is required for all production blasting and
must extend a minimum radius of 1/2 mile from the blast site. The
preblast survey must document any preexisting damage to structures
and buildings and any other physical features within the survey radius
that could reasonably be affected by blasting. Assessment of features
such as pipes, cables, transmission lines and wells and other water
supply systems must be limited to surface conditions and other readily
available data, such as well yield and water quality. The list of
test parameters will be consistent with typical water quality tests
and include: metals (Cu, Fe, Mn, As, U, Na, Pb), chloride, color,
fluoride, hardness, nitrate/nitrite, pH, dissolved solids, turbidity,
radon, total coliform/E. coli, bacteria. The preblast survey must
be conducted prior to the initiation of blasting at the operation.
The owner or operator shall retain a copy of all preblast surveys
for at least one year from the date of the last blast on the development
site.
(a)
The owner or operator is not required to conduct a preblast
survey if the Planning Board determines that no protected natural
resource within the limits of the otherwise required survey is likely
to be affected by blasting and production blasting will not occur
within 2,000 feet of any building not owned or under the control of
the developer.
(b)
The owner or operator is not required to conduct a preblast
survey on properties for which the owner or operator documents the
rejection of an offer by registered letter, return receipt requested,
to conduct a preblast survey. Any person owning a building within
a preblast survey radius may voluntarily waive the right to a survey.
(4)
Detonation of misfires may occur outside of these times but
must be reported to the Code Enforcement Office within five business
days of the misfire detonation. Blasting may not occur more frequently
than two times per day.
(5)
Underground production blasting is prohibited unless the applicant
receives a waiver from the Maine Department of Environmental Protection.
Any operation shall be deemed closed 90 days after its permit
expires or the operations cease for two years. The site shall be rehabilitated
in accordance with this section and MaineDEP regulations (i.e., keep
active operating area under 10 acres by progressive reclamation of
the pit). The rehabilitation plan shall be completed within two years
of closing. Rehabilitation of continuing operations shall be conducted
in phases. Upon completion or abandonment of an existing mineral extraction
operation in existence on the effective date of this chapter, except
for existing exempted slopes and setbacks, the area shall meet the
following requirements:
A.
Specific plans shall be established to avoid hazards from excessive
slopes. Where an embankment remains after the completion of operations,
it shall be graded at a slope not steeper than one foot vertical to
2.5 feet horizontal.
B.
Seeding, planting and loaming, as approved in the rehabilitation
plan, shall be accomplished so that exposed areas are stabilized and
erosion is minimized. Seeding shall achieve a minimum of 90% establishment
of vegetation. Retained topsoil shall be used as loam. These areas
shall be guaranteed for 18 months during which time the performance
guarantee, where required, shall remain in full force and effect.
C.
The Board may require that trees be planted for a visual and acoustical
buffer between the project and adjacent properties if a natural buffer
does not exist.
D.
Tree stumps and grubbings from the site may be used to stabilize
the banks. The areas of pits with solid or broken ledge rock shall
be trimmed of loose rock and the bottom of the pit graded to be compatible
with the surroundings.
E.
The pit shall be contoured so that sediment is not directed into
streams or drainageways.
F.
Grading and restoration shall be completed in such a manner that
it will ensure natural drainage, prevent standing water and minimize
erosion and sedimentation.
G.
Existing pits may expand over five acres without Planning Board approval
if the area being worked remains no larger than five acres and all
the prior existing area has been rehabilitated in conformance with
this section and has been inspected and verified by the Planning Department
prior to any expansion.
[Amended 4-9-2019 by Order
19-053]
A.
The Code Enforcement Officer shall conduct an annual compliance inspection
of all excavations and review and approve all blasting documentation
required by the MaineDEP Title 38, Section 490, on an annual basis,
including, but not limited to, water quality monitoring and groundwater
measurements, individual blast summary reports, annual instrument
calibration, and third-party seismograph results. The applicant shall
annually perform third-party calibration of all instruments used to
document compliance with MaineDEP Title 38, Section 490 (i.e., air
blast levels and peak particle velocities). The applicant shall also
hire a third party to record seismograph readings during one blast
event on an annual basis, to collaborate the seismograph results of
the applicant.
B.
After initial permit approval by the Planning Board, the applicant
shall submit a report to the Planning Department every fifth year,
two months prior to the expiration of the permit. The applicant shall
demonstrate that the operation is in conformance with the standards
found in this section. Aerial photography may be required to demonstrate
conformance with these standards. If the expansion is proposed beyond
the original plan, the applicant must obtain a new permit from the
Planning Board.
C.
Change of operator or owner requires application for a new permit
from the Planning Department. The new owner or operator shall be required
to demonstrate financial and technical capabilities required to operate
a mineral extraction operation equal to those required of the original
owner.
[Amended 4-9-2019 by Order
19-053]
A.
A surety bond issued by a commercial surety company authorized to
do business within the State of Maine; or an interest-bearing trust
account made payable to the Town of Windham; or a letter of credit,
cash, or a certified check payable to the Town of Windham shall be
posted by the owner(s) or operator(s) in an amount recommended by
the Town Manager or his/her authorized agent, with the advice of the
Cumberland County Soil and Water Conservation District and/or a licensed
Maine civil engineer, as sufficient to guarantee conformity with the
provisions of the permit approval for the rehabilitation of existing
mineral extraction operations, new mineral extraction operations,
and/or loam-stripping operations. The performance guarantee shall
also include the cost to replace any private drinking water supply
within 300 feet of the property boundary of the mineral extraction
operation or any supply well within an area in which the elevation
of the water table will be impacted by the development (i.e., where
safe yield and water quality may be impacted).
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
The amount of performance guarantee shall be sufficient to fund the
costs of that rehabilitation which remains to be completed. The performance
guarantee must remain in force until the Planning Department or designee
certifies that the site has been rehabilitated according to the approved
plan.
The removal of loam, topsoil, or sod from the ground surface
may be permitted in any zone and such material may be hauled away
to other locations, either in or outside the Town of Windham. If the
gross area of such removal exceeds 1/4 acre, the stripping may be
done only after public hearing and approval by the Planning Board,
subject to appropriate conditions and safeguards, such as but not
limited to the following:
