Town of Babylon, NY
Suffolk County
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Table of Contents
Table of Contents
Chapter 117: Excavations
[HISTORY: Adopted by the Town Board of the Town of Babylon: Art. I, 4-22-1969; Art. II, 12-9-1969, amended in its entirety 5-11-1993 by L.L. No. 4-1993. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
General penalties — See Ch. 1, Art. II.
Environmental quality review — See Ch. 114.
Zoning — See Ch. 213.
[Adopted 4-22-1969]

§ 117-1 Hearing to determine existence of hazard.

A. 
When it shall come to the attention of the Town Board that real property within the Town has been excavated and such excavation remains unfilled and that such excavation may constitute a hazard to the public safety, the Town Board may proceed in the following manner:
(1) 
The Town Board, by resolution adopted at any meeting, shall fix the time and place of a hearing to determine if such hazard exists.
(2) 
Notice thereof shall be published once in a newspaper having general circulation in the Town not less than 10 days prior to the hearing.
(3) 
Notice by mail shall be sent to the owner of record of the affected property at the address shown on the last preceding assessment roll not less than 10 days prior to the hearing.
B. 
Said notices shall generally state the purpose of the hearing and the location of the affected property.

§ 117-2 Notice to fill hazardous lands.

[Amended 9-7-1994 by L.L. No. 26-1994]
If, after such hearing, the existence of such lands and property are deemed by the Town Board to constitute a hazard to the public safety, the Chief Building Inspector shall be directed to give notice, by registered mail, to the owner of record of the property at the address shown on the last preceding assessment roll, stating that such lands and property are deemed to be a hazard to the public safety and directing the owner to fill such lands. The notice shall state the location of the property and shall further state that if the lands are not filled by or at the direction of the property owner within 30 days, the Commissioner of the Department of Public Works will fill the lands and assess the costs against such lands in the manner provided for the levy and collection of other taxes assessed against such lands.

§ 117-3 Action in case of noncompliance.

[Amended 9-7-1994 by L.L. No. 26-1994]
If, after 30 days from the date the notice is sent to the owner of record, such lands have not been filled, the Commissioner of the Department of Public Works shall proceed to fill such lands using such means and incurring such expense as shall be necessary to expeditiously remove the hazard.

§ 117-4 Payment of costs of filling lands.

The cost of filling such lands shall be assessed against such lands in the following manner:
A. 
The Commissioner of the Department of Public Works shall serve, personally or by mail, upon such owner a written notice stating that at a time and place specified therein he will assess the cost of filling such lands against the owner neglecting to perform such duty. Such notice shall be served at least eight days previous to the time specified therein. If directed against a company, it may be served upon it at its principal place of business or upon an agent of the company within the Town.
[Amended 9-7-1994 by L.L. No. 26-1994]
B. 
At the time and place so specified, he shall hear the parties interested and shall thereupon complete the assessment, stating therein the name of each owner and the amount assessed against him or it, and shall return such assessment to the Town Clerk, who shall present the same to the Town Board.
C. 
The Town Board shall certify such assessment to the County Board of Supervisors of Suffolk County, who shall cause the amount stated therein to be levied against such owner, and any uncollected tax shall be a lien upon the land affected.
D. 
The amount so levied shall be collected in the same manner as other taxes levied by such Board and shall be paid to the Supervisor of the Town of Babylon to be applied in reimbursing the fund from which such cost was defrayed.
[Adopted 12-9-1969;[1] amended in its entirety 5-11-1993 by L.L. No. 4-1993]
[1]
Editor's Note: The provisions of this article are derived from Ch. 12 1/2 of the 1969 Unified Code of Ordinances of the Town of Babylon.

§ 117-5 Policy and intent.

It is hereby declared to be the policy of the Town to provide for the proper use of land to prevent all excavations which create pits, holes or lakes in the earth and leave it in a hazardous or dangerous condition or state; or cause soil erosion which depletes the land of its natural vegetative cover and supply of organic materials; or render such land and surrounding territory unproductive and unsuitable for agricultural, residential, industrial and other purposes resulting in lower land values and adversely affecting the Town tax structure. By this article, the Town Board seeks to remove the danger to health, life, safety and welfare caused by pits, holes or lakes remaining in the ground and the stripping of topsoil which results 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 ponds of water, which article will promote the safety, health and general welfare of the people of the Town and preserve land values and the Town tax structure.

§ 117-6 Applicability of provisions.

No excavation or part or extension thereof for purposes other than the construction of a wall, railroad, driveway, sidewalk, building or part thereof, farming or public use or as permitted by § 117-16 of this article and otherwise permitted by law shall be commenced or shall be continued, except in conformity with the provisions of this article.

§ 117-7 Permissive uses.

A. 
Excavations for the purpose of mining sand, gravel and other minerals shall be allowed as a permissive use by the Board of Appeals, subject to conditions, restrictions and safeguards as may be imposed by the Board of Appeals. Mining shall be defined as any alteration of the surface or subsurface of land by any activity that removes, deposits or disturbs rock, gravel, sand, silt, soil or any other geologic deposits.
B. 
Before approving such use, the Board of Appeals shall determine the following:
(1) 
No residential zone shall be within 1,000 feet of the site.
(2) 
No school, church, park or similar place of public assembly shall be within 1,000 feet of the site.
(3) 
The applicant shall have applied to the New York State Department of Environmental Conservation for a mining permit pursuant to Environmental Conservation Law Article 23.

§ 117-8 Permit required; contents of application.

A. 
Before the excavation or removal of any nonvegetative earth products, other than for the construction of a wall, railroad, driveway, sidewalk, commercial or residential building or part thereof, farming or public use or as permitted by § 117-15 of this article, the owner, lessee, his agent or contractor shall obtain a permit therefor from the Town Board for such excavation and/or removal. Application permits or extensions thereof shall be made to the Commissioner of Planning and Development in duplicate, duly verified, on forms provided by the Town and must be accompanied by the following:
(1) 
A plot drawn to scale, prepared by a duly licensed engineer or land surveyor of the State of New York, setting forth the location and dimensions of the property which it is proposed to excavate; the location, size and use of any existing structures thereon; all Town-accepted highways contiguous to the property to be excavated; cross sections of the property with elevations thereof at intervals of one-hundred-foot squares and also at each break in the grades, showing the elevation or depression of the premises, as the case may be, as compared to the grade of all abutting Town accepted highways or contiguous properties, as the case may be.
(2) 
A duly acknowledged consent, in writing, of the owner of the premises and the mortgagee, if any, including his or their addresses.
(3) 
The Town and the applicant shall jointly take samples of the surface soil on the affected area to determine the character and quality of the soil to be replaced. The cost of such sampling is to be paid by the applicant.
(4) 
A mining permit issued by the Department of Environmental Conservation pursuant to Environmental Conservation Law Article 23.
B. 
Before the Town Board shall issue such permit, the Town Board shall find that:
(1) 
Such use is reasonable, necessary and will be in harmony with and promote the general interests and welfare of the surrounding community.
(2) 
The neighborhood character and surrounding property values are reasonably safeguarded.
(3) 
The proposed use will not prevent the orderly and reasonable use of adjacent property.
(4) 
The site is particularly suitable for the location of such use in the community.
(5) 
The access facilities are adequate for the estimated traffic from public streets, so as to ensure the public safety and to avoid traffic congestion.
(6) 
The proposed use will not pose risks to the public health or safety.
(7) 
Adequate buffer yards and screening can be provided to protect adjacent properties and land uses from possible detrimental impacts of the proposed use.
(8) 
Adequate provision can and will be made for the collection and disposal of stormwater runoff, sewage, refuse and other liquid, solid or gaseous waste which the proposed use will generate.
(9) 
The natural characteristics of the site are such that the proposed use may be introduced there without undue disturbance or destruction of important natural features, systems or processes and without significant negative impact to groundwater and surface water on and off the site.
(10) 
The lot area is sufficient, appropriate and adequate for the use, as well as reasonable anticipated operation expansion thereof.
(11) 
The proposed use can and will comply with all provisions of this article and of the Code which are applicable to it and can meet every other applicable federal, state, county and local law, ordinance, rule or regulation.
(12) 
The proposed use will not result in unacceptable levels of noise, vibration, smoke, dust, odor, fumes or noxious gases, nor negatively impact upon air quality.

§ 117-9 Term of permit; extension.

Permits hereunder shall expire by limitation one year from the date of issuance, unless extended from year to year by the Commissioner of Planning and Development with consent of the Town Board, and in no case shall any permit be extended for more than three years from the date of the original issuance of such permit, unless extended by the Town Board. No permit shall be issued for an area exceeding 10 acres. No permits for new areas shall be issued to a permittee who has failed to secure a certificate of completion for any permitted area, as provided in this article. A permittee may have only one permit in force at the same time for the same property.

§ 117-10 Bond required for permit.

[Amended 9-7-1994 by L.L. No. 26-1994]
Before issuance of a permit hereunder, the owner, contractor, lessee or applicant shall execute and file with the Town Clerk a bond, cash or its equivalent, said bond to be approved by the Town Board as to form, sufficiency and manner of execution. Said bond shall be conditioned for the faithful performance of the conditions contained in this article and in addition shall indemnify the Town and the Commissioner of the Department of Public Works for all damage to Town property. Said bond shall remain in force and effect until a certificate of completion has been issued by the Town as provided in this article. The bond shall, in case of areas of 10,000 square feet or less, be in the amount of $5,000. For areas exceeding 10,000 square feet, the minimum bond of $5,000 shall be increased at the rate of $1,000 for each additional 10,000 square feet or part thereof.

§ 117-11 Permit fees.

[Amended 4-9-1996 by L.L. No. 6-1996]
The Commissioner of Planning and Development shall charge as a permit fee for each permit issued pursuant to this article in such amount as shall be established from time to time by Town Board resolution.

§ 117-12 Certificates of completion.

A. 
Required. Each permittee hereunder must secure a certificate of completion prior to the expiration of his permit and extension or extensions thereof, if any, unless the time to secure such certificate is extended by the Town Board upon good and sufficient cause shown. Application for such certificate shall be made in duplicate, duly verified, to the Commissioner of Planning and Development by the owner, contractor, permittee or lessee or agent, upon forms provided by the Town, and in cases of excavations and/or removal under §§ 117-13 and 117-14 of this article shall be accompanied by a cross section of the affected area, giving elevations thereof as provided in § 117-8A of this article, prepared by a duly licensed engineer or land surveyor of the State of New York, after completion of the operations.
B. 
Issuance. The Commissioner of Planning and Development shall issue such certificate where it appears by good and sufficient proof that the property, upon completion of excavation and/or removal operations, is in the state or condition required by the provision of § 117-13 or has been put in the state or condition with respect to refilling, surfacing and seeding as required by the provision of § 117-15 of this article, whichever section shall be applicable.

§ 117-13 Removal of topsoil.

No stripping or removal of topsoil shall be made within 10 feet of any property line. Upon completion of stripping or removal of topsoil, there shall be left remaining upon the surface of the land from which topsoil is removed or stripped not less than four inches of topsoil. Dust down or its equivalent shall be spread to prevent dust from flying. The affected areas shall be seeded to ensure fast growing vegetation.

§ 117-14 Excavation of nonvegetative earth products.

No excavation for the removal of nonvegetative earth products, except as stated in § 117-13, shall be made at any times within 20 feet of any property line or Town-accepted highway. Adequate barriers surrounding the affected area shall be erected and maintained upon the approval of the Building Inspector. Adequate provision shall be made for the prevention of flying dust by sprinkling, spreading of dust down or its equivalent.

§ 117-15 Refilling and surfacing completed excavations.

A. 
Upon completion of excavation operations, the affected area shall be refilled with clean, nonburnable material containing no garbage, refuse or offal or other unwholesome matter. The area abutting upon all Town-accepted highways shall be refilled so that the same shall be no lower than the level of such abutting highway for a distance back of 150 feet. The remaining area shall be refilled so that the same shall be no lower than 5 1/2 feet below the lowest point of the Town-accepted highway upon which property fronts, or if the property does not front upon any highway, then below the lowest point of the nearest Town-accepted highway. The remaining area shall be sloped up to meet all areas abutting upon the Town-accepted highway or adjoining properties on a grade of one foot vertical to two feet horizontal or flatter. In no case shall the lowest point of the affected area be less than four feet above the underground mean water table, except when necessary for recharging basins as may be required by the New York State Water Power and Control Commission or for proper drainage of the area.
B. 
The affected area shall be surfaced with a minimum of four inches of topsoil where four inches or more of topsoil existed prior to such excavation, and in all other cases, the existing surface soil prior to such excavation shall be preserved and replaced to a depth of four inches or the affected area surfaced with an equivalent quantity of surface soil of similar quality.
C. 
The affected area in every case shall be seeded to ensure fast-growing vegetation. Where the affected area or any part thereof is paved or used for industrial purposes, the topsoil and seeding provisions shall not apply to such area. In no case shall a permittee be required to refill above a grade existing at the time of the issuance of the permit.

§ 117-16 Exceptions to provisions.

Nothing herein contained shall require a person to obtain a permit or prevent him from removing topsoil from one part to another of the same premises when such removal is necessary as an accessory use or is made for the purpose of improving said property. The excavation and/or clearing of streets shall not require a permit under this article and shall be considered as being performed for public use.

§ 117-17 Enforcing officer.

The Commissioner of Planning and Development of the Town of Babylon is hereby designated as the person to issue permits, extensions of permits and certificates of completions for the same.

§ 117-18 Penalties for offenses.

For any and every violation of the provisions of this article, the owner, lessee, agent or contractor of the 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, agent, contractor or lessee or tenant of any part of the premises in which part of said violation has been committed or shall exist, and the agent, architect, engineer, surveyor, contractor or any other person who knows, 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 violation punishable as provided in §§ 1-15 through 1-17. Each day's violation shall constitute a separate violation. Such fines or penalties shall be collected as like fines are now by law collected.