[HISTORY: Adopted by the Town Board of the Town of Newstead as indicated
in article histories. Amendments noted where applicable.]
[Adopted 4-12-1954 (Ch. 45, Art. I, of the 1988
Code)]
It is hereby declared to be the policy of the Town Board to provide
for the proper use of land to prevent all manner of excavations which create
pits, holes or hollows in the earth, leaving it in a hazardous or dangerous
state, or cause soil erosion which depletes the land of its natural
vegetative cover and supply of organic material and renders such land unproductive
and unsuitable for agriculture purposes and undesirable for building homes,
resulting in lower land values. By this article, the Town Board seeks to remove
the danger to health and life caused by deep excavations remaining in the
ground and the stripping of topsoil thereby resulting in damage to agricultural
crops through dust storms in dry weather, by exposure of the bare earth to
wind action and, in wet periods, by pools of water, which article will promote
the safety, health and general welfare of the people of the Town.
No excavation for purposes other than the construction of a wall, driveway, sidewalk, building or part thereof, or as permitted by § 183-9 of this article, shall be commenced except in conformity with the provisions of this article.
A.
Before any excavation for purposes other than the construction
of a wall, driveway, sidewalk, building or part thereof, farming or a public
use is commenced and topsoil, earth, sand, gravel, rock or other substance
is removed from the ground, the owner, lessee or agent of the premises shall
obtain a written permit therefor from the Town Board, except that, where operations
are being carried on at the time this article becomes effective a period of
30 days shall be allowed for obtaining a permit while operations continue.
However, all such excavations shall be subject to all provisions of this article
from the date of its adoption.
B.
Application and plans.
(1)
For that purpose, each applicant shall file with the
Town Clerk of the Town of Newstead, New York, a verified application for such
permit, containing a detailed statement of the proposed work, together with
a plan prepared by a duly licensed engineer or land surveyor of the State
of New York, setting forth in detail the following information:
(a)
All information as required on the application form prepared
by the Town Board, including a detailed statement of the proposed work and
a three-dimensional extent of the proposed excavation and the exact condition
of the plot or premises before the work is commenced and the proposed condition
of said plot or premises after the work is completed.
(b)
A duly acknowledged consent, in writing, of the owner
or lessee of the premises and mortgagee, if any, including his or their addresses.
(c)
Receipted tax bills or a certificate from the Receiver
of Taxes of the Town of Newstead and the County Treasurer of Erie County,
showing payment of all taxes and assessments to date against the property
described in the application.
(d)
A certificate of the Superintendent of Highways of the
Town of Newstead that such proposed excavation and the finished grades of
said property as shown on said map will not interfere with the drainage or
endanger any road, street or highway of the State of New York, the County
of Erie or of the Town of Newstead or other property of said state, county
or Town.
(2)
The plan shall be drawn to a scale of not less than one
inch equaling 100 feet and shall give all streets adjoining the property;
the location and dimensions of the premises upon which it is proposed to excavate;
the location, size and use of any buildings; a cross section of the property,
giving elevations thereof at intervals of fifty-foot squares and also at each
break in the grades; and the elevation of the premises as compared to the
elevation of any abutting highways.
(3)
For areas where only topsoil is to be removed, the plan
shall show the provisions that have been made for draining or otherwise preventing
the collection of water on any portion of said plot which is not restored
to the original grade.
A.
No such excavation shall be made:
(1)
Within 20 feet of any property line; however, the Town
Board may, within its discretion, allow excavations closer than 20 feet to
any property line, provided that the applicant submits to the Town Board a
duly acknowledged consent, in writing, of the owner, lessee and mortgagee,
if any, of the adjoining property affected, consenting to such excavation,
and shall state the distance agreed upon between the parties.
(2)
Within 100 feet of the edge of any highway right-of-way
line.
B.
Said excavations shall be leveled on the bottom by refilling,
if necessary, or grading, all sides being left with a slope from top to bottom
of 1 1/2 feet horizontal for each one foot of drop.
C.
Except that where the material being removed is rock,
in lieu of sloping all sides of the excavation as herein before provided,
a permanent fence or barricade designed to effectively prohibit access to
the excavation may be erected on all sides bordering streets, highways and
neighboring properties, and, at the conclusion of operations, a permanent
fence or barricade must be erected on all sides of such excavation.
No stripping or removal of topsoil shall be made within 10 feet of any
property line, and, upon completion of the work, the premises, if below grade,
shall be graded to the level of the abutting highway or the original grade
if the same was below the level of the highway. Dustdown, or its equal, shall
be spread to prevent dust from flying, and there shall be left upon the surface
of the land from which topsoil is removed not less than five inches of topsoil.
All areas from which topsoil is removed shall, during the period between April
1 and May 15 or August 15 and October 1, be prepared into a loose level seed
bed, limed, fertilized and seeded in the following steps:
A.
Apply ground limestone at the rate of one ton per acre.
B.
Apply 5-10-10 fertilizer at the rate of 600 pounds per
acre.
C.
Disc area to work limestone and fertilizer into the soil
to a depth of at least three inches.
D.
Smooth area with a smoothing harrow.
F.
Brush in seed lightly.
G.
Roll firm with ground roller.
A.
Before the issuance of a permit, the applicant and the
owner of record of the premises shall execute and file with the Town Clerk
a bond, approved by the Town Board of the Town of Newstead in an amount to
be fixed by said Board, but not less than $2,000 for topsoil removal nor less
than $15,000 for all others, with a surety company as surety and conditioned
for the faithful performance of the conditions contained in this article and
the observance of all state, county and municipal ordinances and laws and
shall indemnify the Town of Newstead and/or the Superintendent of Highways
for any damage to Town property. In the event of a default, such bond shall
be forfeited to the Town of Newstead.[1]
B.
Said bond shall remain in full force and effect until a certificate of completion has been issued by the Town Board, certifying to the fact that all provisions of this article and conditions of the permit have been fully complied with. Application for such certificate shall be made by the applicant, owner, lessee or his agent on forms provided by the Town of Newstead and shall be accompanied by a map drawn to scale showing a cross section of the affected property, giving elevations thereof as provided in § 183-3B(2) of this article, prepared by a duly licensed engineer or land surveyor of the State of New York after the completion of operations, who shall also certify that there is not less than five inches of topsoil remaining upon the ground from which topsoil has been removed and that such area has been seeded in compliance with § 183-5 hereof.
C.
In lieu of such bond, a cash deposit or deposit of negotiable
securities may be made with the Supervisor of the Town of Newstead.
The Town Clerk, when authorized to do so by the Town Board, shall issue
permits and shall charge and collect for each such permit:[2]
A.
Sand banks and gravel pits and pit excavation: a minimum
fee in such amount as may be established by the Town Board of the Town of
Newstead by resolution from time to time, for an excavation volume not to
exceed 20,000 cubic yards. For excavation exceeding 20,000 cubic yards, the
minimum fee shall be such amount established by the Town Board of the Town
of Newstead by resolution, plus such amount established by the Town Board
of the Town of Newstead by resolution from time to time, for each additional
cubic yard or fraction thereof. In lieu of such fee for each additional cubic
yard or fraction thereof, the applicant may pay annually to the Town of Newstead
the sum in such amount as may be established by the Town Board of the Town
of Newstead by resolution from time to time, together with the minimum fee
established hereunder, which payment shall be made on the 15th of May of the
calendar year.
B.
Topsoil removal: a minimum fee in such amount as may
be established by the Town Board of the Town of Newstead by resolution from
time to time, for an area not to exceed 5,000 square feet. For areas exceeding
5,000 square feet, the minimum fee previously established hereunder plus an
additional amount as may be established by the Town Board of the Town of Newstead
by resolution from time to time, for each additional 1,000 square feet or
a fraction thereof.
Sand bank and gravel pit, pit excavation and topsoil removal permits shall expire by limitation one year from the date of issuance unless extended by the Town Board. No permit or permits shall be granted for removal of more than four acres of topsoil from any one tract of land until full compliance with this article is made under any existing permit for the same tract, except for the preparation of the ground and seeding as provided in § 183-5 hereof.
Nothing contained in this article shall require a person to obtain a
permit for or prevent a person from removing topsoil from one part of his
lands to another part of the same premises when such removal is necessary
as an accessory use or is made for the purpose of farming or improving said
property.
For any and every violation of the provisions of this article, the owner,
general agent or contractor of a building on premises where such violations
have been committed or shall exist, and the lessee or tenant of the premises
where such violation has been committed or shall exist, and the owner, general
agent, contractor, lessee or tenant of any part of the premises in which part
of said violation has been committed or shall exist, and the general agent,
architect, engineer, surveyor, building contractor or any other person who
knows, maintains, permits, takes part or assists in any such violation or
who maintains any premises in which any such violation shall exist, shall
be guilty of a misdemeanor, punishable by a fine of not more than $1,000 or
imprisonment for not more than five months, or both. Each week's continued
violation shall constitute a separate additional violation. Such fines or
penalties shall be collected as like fines are now by law collected.
Where there are practical difficulties or unnecessary hardships in the
way of carrying out the strict letter of this article, the Town Board shall
have power to vary and modify the application of such article so that the
spirit of the article shall be observed, public safety and welfare secured
and substantial justice done.
[Adopted 8-10-1981 (Ch. 45, Art. II, of the 1988
Code)]
This article shall be known as the "Ordinance Regulating and Controlling
Abandoned Excavations and Foundations for Buildings in the Town of Newstead."
It is the purpose of this article to promote the health, safety and
welfare of the inhabitants of the Town of Newstead by regulating and controlling
abandoned excavations and foundations for buildings in said Town.
Such excavations and/or foundations shall be deemed abandoned when no
construction work on the superstructure has been commenced within a period
of 60 days following the date of the digging of the excavation, in which case
the building permit issued for the building shall be canceled and the owner
and contractor notified, in writing, to fill in the excavation and/or the
foundation up to the original ground level with clean earth and to seal up
any sewer connections that may exist on the property. Said notice shall be
served on the owner and contractor by registered certified mail at their last
known place of residence.
[Amended 2-8-1993 by L.L. No. 1-1993]
In the event that the owner or contractor fails to comply with the requirements
of this article within 30 days after the date of mailing of said notice, then
the Town of Newstead shall cause the excavation to be filled and the sewer
openings, if any, to be sealed, and said owner of the premises shall reimburse
the Town for any expenditures thereby incurred, or the Town may elect to assess
the cost of so doing on the tax roll of the property involved. Eight days'
notice shall be given to the property owner and other parties involved prior
to the assessment of costs in order that the assessment is apportioned in
an equitable manner.
Where there are practical difficulties of unnecessary hardships in the
way of carrying out the strict letter of this article, the Town Board shall
have the power to vary or modify the application of any of the regulations
or provisions herein contained so that the spirit of the article shall be
observed and public welfare and safety secured and substantial justice done.
In addition to assessment of costs provided for in § 183-15, any person, firm or corporation who shall violate any provision of this article shall, upon conviction, be subject to a maximum fine of $250 or a maximum term of imprisonment of 15 days, or both, for each offense.
