[HISTORY: Adopted by the Town of Kingston as Ch. 12 of the General Bylaws; amended 1989 ATM by Arts. 34 and 41; 1989 STM by Art. 13; 1992 STM by Art. 2; 1999 ATM by Art 29; 2010 ATM by Art. 17; 2014 ATM by Art. 47. Subsequent amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
AGRICULTURAL EXCAVATION
The process of removing earth or other materials that is necessary and incidental to prepare a site for specific agricultural use. Agricultural excavation may include the creation of wetland resource areas such as ponds, canals, cranberry bogs and land subject to flooding as defined under the MGL c. 131, § 40, and as defined in Massachusetts Wetlands Regulations 310 CMR 10.00.
BOARD
The Kingston Board of Selectmen.
EARTH
Includes stone, sand, clay, gravel, and rock and other earth material.
EARTH REMOVAL PERMIT
Permit issued by Board pursuant to this bylaw, allowing earth removal subject to conditions.
INCIDENTAL
Subordinate to, customarily associated with and reasonably required by a lawful use of a premises.
PREMISES
One lot or all abutting lots or parcels which are, or are proposed to be, in the same ownership or use, together with all buildings and structures thereon.
REMOVAL
Excavation of earth, whether such excavated earth is removed from the premises or placed in another location on the premises.
RESTORATION
After an earth removal activity is completed, returning the land contours to safe and usable condition, restoring drainage patterns and planting appropriate vegetation.
TOWN
Town of Kingston.
A. 
No person, firm, corporation, or other entity shall excavate and/or remove in any twelve-month period more than 1,000 cubic yards of earth from any land in the Town unless pursuant to a permit issued in conformity with § 150-3 or exempted pursuant to § 150-4 of this bylaw.
B. 
No person, firm, corporation, or other entity shall undertake industrial or commercial mining and removal of sand, gravel, clay, mineral deposits or quarried stone that alters the natural topography other than for a permitted earth removal as described in § 150-3.
[Added 5-14-2022 ATM by Art. 33]
C. 
No person, firm, corporation, or other entity shall excavate and/or remove in any twelve-month period any earth materials within 10 feet of the water table on any land in the Town except:
(1) 
For installation of utilities and other exemptions granted under § 150-4A; and
(2) 
The construction of a pond for aquaculture use by a person with an aquaculture permit under the licensing provisions of MGL c. 131 and subject to the terms and conditions of a permit issued hereunder; provided, however, that no pond shall be constructed within a DEP-approved wellhead protection area Zone II.
[Amended 5-14-2022 ATM by Art. 33]
The Board of Selectmen may issue an earth removal permit when it determines that such earth removal is incidental to, and necessary for, the following purposes:
A. 
Construction of an approved building(s) or structure(s) and uses incidental thereto;
B. 
Construction or operation of customary agricultural use, including but not limited to the construction of a pond for aquaculture use by a person with an aquaculture permit under the licensed provisions of MGL c. 131; provided, however, that no pond shall be constructed within a DEP-approved wellhead protection area Zone II.
C. 
Specific requirements of an approved, definitive subdivision plan.[1]
[1]
Editor's Note: See Ch. 468, Subdivision of Land.
A permit shall not be required under this bylaw for the following type of excavation:
A. 
Excavation not in excess of 1,000 cubic yards and incidental to the construction of buildings for which all permits required by law have been issued, or the installation of walks, driveways, septic systems, swimming pools, provided the quantity of material removed shall not exceed that displaced by the portion of the building or accessory use below finished grade;
B. 
Removal of less than 2,000 cubic yards necessary for normal agricultural uses as defined under MGL c. 131, § 40, 310 CMR 10.04(a), land in agricultural use; (b), normal maintenance of land in agricultural use; and (c)c normal improvement of land in agricultural use. This agricultural-related work is further defined as earth necessary to maintain or improve the applicant's/owner's contiguous or noncontiguous land for agricultural purposes, and does not include the removal of earth for sale, trade or other considerations. This practice must use best management practices as outlined in the Natural Resources Conservation Service (NRCS) Conservation Practice Standard "Land Reclamation, Currently Mined Land," Code 544 or the NRCS Conservation Practice Standard "Critical Area Planting" Code 342, as may be amended or supplanted. In addition, this removal must be outlined in a conservation farm management plan with review and approval by the Board of Selectmen or its duly appointed representative;
C. 
Excavation not in excess of 1,000 cubic yards in compliance with the specific requirements of an approved, definitive subdivision plan;[1]
[1]
Editor's Note: See Ch. 468, Subdivision of Land.
D. 
Excavation on land owned or operated by the Town of Kingston;
E. 
Excavation incidental to and reasonably required for the legal operation of a cemetery.
A. 
Notification. For enforcement purposes, all exempted and permitted earth removal in excess of 100 cubic yards require written notification to the Zoning Enforcement Officer at the commencement and conclusion of the earth removal. Such notice shall include identification of the purpose of excavation, area to be worked, duration of removal, volume of material to be removed, final disposition of earth material and description of planned restoration of the site when the work is completed.
B. 
Enforcement. Penalties for violation of this bylaw shall be: $200 for the first offense, $300 for each subsequent offense. Each day in which a violation occurs shall constitute a separate offense. This bylaw may be enforced by the Board of Selectmen, or its designee(s) and Kingston police officers.
[Amended 5-14-2022 ATM by Art. 33]
An application for an earth removal permit shall be in writing. The application shall contain an accurate description of the portion of land on which the excavation will take place, including recording information (or copies of deeds), map and lot and street address, and shall state fully the purpose of the excavation, shall include payment of fees established by the Board, and shall include stamped plans drawn by a registered surveyor or engineer. The application shall also include the following information:
A. 
Permits for the proposed end use for § 150-3A or C from any state, local or federal agency necessary for the proposed use for which the earth removal is necessary and incidental or, in the case of § 150-3B, an approved site plan with an approved site plan for the proposed agricultural pond or other agricultural use;
B. 
A narrative of the project;
C. 
Zoning of the subject property;
D. 
The precise location of the proposed excavation as part of the total land area of the subject property;
E. 
The legal name and address of each owner of the property for which the permit is requested;
F. 
The name and address of the applicant and the address which shall be sufficient for any notice required under the bylaw;
G. 
The property lines, names and addresses of all abutters, including those across any way, from the most recent tax list as certified by the Board of Assessors;
H. 
Existing contours at two-foot intervals in the area from which material is to be excavated and in surrounding areas, together with the contours at two-foot intervals below which no excavation shall take place;
I. 
Natural features such as wetlands, the 100-year floodplain, ground cover, surface water and groundwater. Water table elevation shall be determined by test pits and soil borings satisfactory to the Board of Selectmen. A log of soil borings shall be included, taken to the depth of the proposed excavation, congruent with the size and geological make up of the site;
J. 
A topographical map at two-foot interval contours, showing drainage facilities, final grades, and proposed vegetation and trees, where only native, noninvasive species may be planted and with minimum three-inch-caliper with watering plan;
K. 
Dust, erosion, and sediment control plan for the site and trucks removing earth during and after the activity (final stabilization);
L. 
The amount and cost of proposed restoration materials, and the source from which the applicant intends to obtain them;
M. 
Estimated quantity of material to be removed and topsoil to be replaced and the method to be used, verified by a registered surveyor or professional engineer;
N. 
An estimate of the number of truck trips, location of truck routes and hours of truck traffic;
O. 
Designation on the required plan of any and all proposed phases and the number of cubic yards to be excavated in each, none to exceed five acres or 200,000 cubic yards, whichever is less; and
P. 
Any other information which the Board may require.
[Amended 5-14-2022 ATM by Art. 33]
A permit shall be granted only by an affirmative vote of a majority of the Board, after a finding that the proposed earth removal is both necessary and incidental to the proposed use. Following receipt of an application for a permit for removal of earth from any land and determination by the Board or its designated agent that the application is complete, the Board shall appoint a time and place for a public hearing, not later than 45 days after the receipt of the completed application, notice of which shall be given to the applicant. The Board's decision shall be issued within 45 days of the close of the hearing.
[Amended 5-14-2022 ATM by Art. 33]
The Board shall require as a condition to the granting of the permit that the applicant furnish a cash security, a passbook agreement, a lender's agreement, or other security, in a form and amount that is satisfactory to the Board. The minimum amount of any financial security shall be sufficient to cover the estimated cost, at prevailing wages, of reclamation, restoration and landscaping, plus reasonable contingency. The security shall not be released until the applicant's surveyor or engineer has filed with the Board an as-built plan and has also certified that the restoration has been completed in compliance with the permit and the plans, and said plan to be subject to peer review. The review and approval of plan and certification shall be at the sole discretion of the Board.
The Board shall exercise its powers with due regard to:
A. 
The health, safety and general welfare of the inhabitants of the Town;
B. 
Protection from detriment to the neighborhood, with respect to pollution, noise, dust, fumes, odor, traffic and other nuisance conditions;
[Amended 5-14-2022 ATM by Art. 33]
C. 
Protection of natural resources, including but not limited to the water sources, wetland, plants, and wildlife.
[Amended 5-14-2022 ATM by Art. 33]
[Amended 5-14-2022 ATM by Art. 33]
The Board may impose on any permit conditions which it deems appropriate, including but not limited to conditions upon methods of removal, type and location of structures, fencing, hours of operation, area, location and depth of excavation, steepness of slopes, drainage, disposition of boulders and stumps, control of noise, dust and erosion and site restoration and planting requirements. Failure to adhere to any conditions of approval will be cause for a cease-and-desist order.
Every permit shall contain the condition that inspection of the operation may be made at reasonable hours by an agent of the Board to determine compliance with the conditions of the permit and this bylaw.
The following standards of operation shall apply to every permitted operation, in addition to conditions imposed under § 150-8:
A. 
No area shall be excavated so as to cause accumulation of freestanding water unless the Board shall expressly permit. Permanent drainage shall be provided in accordance with accepted engineering and conservation practices. Drainage shall not lead directly into streams or ponds.
B. 
No excavation shall be made within 10 feet above annual high-water table, as established from test pits and soil borings satisfactory to the Board of Selectmen. Observation well(s) shall be monitored as ordered by the Board of Selectmen. The locations of the pits, borings, and wells shall show on the topographic plan and on a permanent monument erected upon the property. The establishment of the test pits and soil borings and monitoring thereof shall be at the applicant's expense.
C. 
All topsoil and subsoil stripped from operating areas shall be stockpiled, seeded with an erosion-control seed mixture and used in restoring the area.
D. 
Any shelters or buildings erected on the premises for use by personnel or storage or equipment shall be screened from view if so ordered by the Board of Selectmen and shall be removed from the premises within 60 days after they are no longer needed for permitted excavation or restoration work upon that site.
E. 
The active excavation operation area shall not exceed a total of five acres at any one time. Natural vegetation shall be left and maintained on undisturbed land for screening and noise-reduction purposes.
F. 
Hours of operation, including loading and transportation, shall be set by the Board. All loaded vehicles shall be suitably covered to prevent dust and contents from spilling and blowing from the load.
G. 
Trucking routes and methods shall be approved by the Board and shall also be subject to approval of the Chief of Police.
H. 
Access roads shall be constructed in a manner that precludes any trucks from turning more than 90 degrees to enter or leave the site. All access roads shall be properly secured during the nonoperational hours of the excavating process, and this security will remain in effect until the property has been restored and seeding and planting have begun growth.
I. 
All access roads leading to the public ways shall be paved in a manner suitable to the intended vehicle load for a distance of 200 feet back from said public ways unless it can be affirmatively demonstrated to the Board that such surfacing will impact adjacent resource areas or essential elements of on-site operations. On-site refueling of equipment shall be performed only on access roads to the greatest extent practicable.
J. 
Limits of excavation shall be set by stakes located every 100 feet with a minimum of three feet exposed. A vertical control monument shall be installed in a readily accessible location.
K. 
No excavation or associated activities shall be allowed closer than 100 feet to any resource area within the jurisdiction of the Conservation Commission, except for existing cranberry bogs, unless the Conservation Commission has approved activities within such area. Natural vegetation shall be left and maintained on the undisturbed land.
L. 
Stormwater management shall be compliant with all applicable state and local standards.
Restoration shall be carried out according to the plans submitted, all conditions of the permit, and the following minimum conditions:
A. 
Restoration shall be carried on simultaneously with excavation, so that when any three-acre operation area has been excavated, at least two acres shall be restored before work commences (including construction of haul roads) on the next contiguous three acres. Final restoration work shall be completed within 60 days after expiration or withdrawal of a permit or upon cessation of operations.
B. 
When the depth of excavation is five feet or less, as measured from grade through the entire width of the cross section, earth may be removed to within 25 feet of an abutting residential property line and shall be restored to a maximum 3:1 grade up to this setback; when the depth of excavation is greater than five feet, as measured through the entire width of the cross section, earth may be removed to within 50 feet of abutting residential property lines and shall be restored to a maximum 2:1 grade up to this setback; for any depth of excavation, earth may be removed to within 25 feet of abutting nonresidential property lines and shall be restored to a maximum 3:1 grade up to said property line. These standards shall not necessarily apply to adjacent lots in common ownership or where deviations from these standards will provide for complementary design between properties.
C. 
All debris, stumps, boulders, etc., shall be removed from the site and disposed of in an approved location.
D. 
Retained subsoil and topsoil shall be spread over the disturbed area to minimum depth of four inches and treated with three tons of lime per acre, fertilized as approved by the Board, and seeded with the grass or legume mixture prescribed by the Conservation District or Massachusetts Department of Environmental Protection for slope-erosion control. Trees or shrubs of prescribed number, species and size will be planted to provide screening and reduce erosion during the establishment period.
[Amended 5-11-2024 ATM by Art. 29]
E. 
Unless the permit conditions expressly require alteration of existing drainage patterns, the land shall be left so that natural storm drainage shall leave the property at the original natural points and so that the total discharge at peak flow, and the area of drainage to any one point, is not increased; and so that the hydrograph of any post-development stream is the same as that of the predevelopment stream.
F. 
All equipment, buildings and structures shall be removed from the area.
G. 
Within 30 days following completion of operation, final grading shall be established and shown on the approved topographical plan.
[Amended 5-14-2022 ATM by Art. 33]
A permit shall be issued for a period of one year. The Board may in its discretion grant a permit extension for each additional year beyond the initial period, but no such extension shall be issued unless the applicant has conformed to all requirements of the original or extended permit, and each extension shall include a review and recommendation from the Board's agent and shall be made at a public meeting.
The Board may revoke any permit which it has issued for good cause, provided that it shall, in writing, offer to the permit holder an opportunity for a hearing within seven days after the revocation.
The Board may establish rules and regulations to implement this bylaw, including but not limited to a schedule of fees and schedule of security.