Town of Blooming Grove, NY
Orange County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Blooming Grove 12-8-1975 by L.L. No. 4-1975 as Ch. 136 of the 1975 Code. Amendments noted where applicable.]
GENERAL REFERENCES
Filling and grading — See Ch. 124.
Streets and sidewalks — See Ch. 204.
The Town Board of the Town of Blooming Grove, in order to provide for the proper use of land in the town and to remove dangers caused by soil erosion, soil excavation, sand and gravel pits, rock quarries, tree removal, other alteration to the natural contour of the earth as it presently exists in the town, and loaded vehicles entering highways and roadways within the town from sites on which excavation is taking place, thereby resulting in detriment to the public safety, health and general welfare, has enacted this chapter.
This chapter shall apply only to lands located in the unincorporated area of the town.
A. 
Referral to Chapter 235, Zoning. For the purpose of this chapter, all terms and words herein shall be used, interpreted and defined as set forth in Chapter 235, Zoning.
B. 
Specific terms. As used in this chapter:
EXCAVATION
Any digging extending to a depth of more than 18 inches below the natural contour of the land, or the present contour if the natural contour has been disturbed prior to the effective date of this chapter; including, but not limited to, soil, sand, gravel and rock digging.
EXCAVATION PERMIT
A permit issued by the Zoning Board of Appeals allowing excavation as a special exception use.
STOCKPILING
Excavation of loose material from an area and storing in piles convenient for removal from the site.
A. 
Grant of power. The Town Board of the Town of Blooming Grove hereby grants to the Zoning Board of Appeals the power to review and act on all applications for excavations in the town.
B. 
Optional referral to Planning Board. Any application for a permit under this chapter, whether for an original or renewal permit, may at the discretion of the Zoning Board of Appeals be referred to the Planning Board for its report and recommendation. Within 30 days after the date of said referral, the Planning Board should report its recommendations to the Zoning Board of Appeals. If no report is made within such period of time, the Zoning Board of Appeals may render a determination on the application.
[Amended 5-10-1976 by L.L. No. 1-1976; 7-9-1990 by L.L. No. 1-1990]
The following shall be exempt from the application of this chapter.
A. 
Any excavation or removal of trees, incident to highway or public utility construction or maintenance.
B. 
Any removal of trees or soil not amounting to an excavation incident to the business of operating a farm.
C. 
The moving of soil, sand, gravel or rock from one part of a premises to another part of the same premises, incident to landscaping or the construction of a structure or improvement for which preliminary or final subdivision approval, site plan approval or a building permit has previously been issued by the Town of Blooming Grove.
[Amended 7-9-1990 by L.L. No. 1-1990]
D. 
The removal of soil, sand, gravel or rock incident to to the landscaping or improvement of drainage of a residential lot, no larger than two acres in area, occupied by an existing single-family residence dwelling; provided, however, that:
[Added 2-14-1977 by L.L. No. 5-1977]
(1) 
Excavations involving less than 1,000 tons of material shall be subject to the following:
(a) 
Subsections A, B, C, F and G of § 116-6 of this chapter.
(b) 
Application shall be made to the Town Engineer for a permit to perform excavations. Said application shall describe the rehabilitation work to be performed and shall include an estimate of the quantity of material to be removed. The applicant shall pay a fee as set by resolution of the Town Board from time to time.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(c) 
Issuance of a permit by the Town Engineer.
(2) 
Excavations involving more than 1,000 tons of material shall be subject to the following:
(a) 
Subsections A, B, C, F, G and H of § 116-6 of this chapter.
(b) 
Application shall be made to the Zoning Board of Appeals for a permit to perform excavation. The Zoning Board of Appeals shall hold a public hearing within 62 days of receipt of application and shall render a decision no later than 62 days after the public hearing.[2]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(c) 
Issuance of a permit by the Zoning Board of Appeals. Failure by the Board to act within the period specified in Subsection D(2)(b) above shall constitute an approval of the application.
(d) 
The applicant shall pay a fee as set by resolution of the Town Board from time to time.[3]
[3]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
No authorization for an excavation permit shall be granted by the Zoning Board of Appeals unless the application meets the following standards:
A. 
Effect on adjoining property. The proposed operation shall not adversely affect soil fertility, drainage and lateral support of abutting land or other properties, nor shall it contribute to soil erosion by water or wind.
B. 
Time restrictions. Operations shall be conducted only during the hours of 7:00 a.m. to 5:00 p.m. No operations shall be conducted on Sundays or holidays.
[Amended 5-9-1988 by L.L. No. 4-1988]
C. 
Fencing. Where any open excavation will have a depth of 10 feet or more and a slope of 30° or more, there shall be a six-foot-high fence, plus a two-foot-high barbed and angled top with gates of the same design effectively blocking access to the area in which such excavation is located. Such fence shall be located 50 feet or more outside the perimeter of the excavation. All operations shall be screened from nearby residential uses to the extent practicable.
D. 
Access road. Adequate access to and from a public street shall be provided not nearer than 200 feet of an adjacent owner's lot line. If the access road is located within 500 feet of an adjacent owner's lot line, said access road shall have a dustless surface.
E. 
Location. The top of the slope in cut for any excavation, and the location of any mechanical equipment, shall not be less than 50 feet from any lot line; provided, however, that the Zoning Board of Appeals may waive this restriction if:
[Amended 2-13-1978 by L.L. No. 2-1978]
(1) 
There are excavations on both sides of a common boundary line.
(2) 
It is desirable to eliminate a ridge or dike of material.
(3) 
The grade of the area after removal of material will not exceed one on two.
F. 
Drainage. At all stages of operations, proper drainage shall be provided to prevent the collection and stagnation of water and to prevent harmful effects on surrounding properties.
G. 
Noise and blasting.
(1) 
Proper measures shall be taken to minimize the nuisance of noise and flying dust or rock. Such measures may include limitations upon the practice of stockpiling excavated material upon the site.
(2) 
Blasting shall be done only by persons possessing a valid explosive license issued by the New York State Department of Labor. Blasting precautions shall include the use of steel mats over the blasting area.
H. 
Rehabilitation plan.
(1) 
Before a permit is granted, a plan for rehabilitation showing both existing and proposed final contours shall be submitted for approval. After any such operations, the site shall be made reusable for a use permitted in the district. Where topsoil is removed, sufficient arable soil shall be set aside for retention on the premises and shall be respread over the premises after the operation. The area shall be brought to final grade by a layer of earth of two feet or original thickness, whichever is less; provided, however, that such layer of earth shall be such that it is capable of supporting vegetation.
(2) 
A time schedule for completion shall be submitted for the entire operation and for each stage of the entire operation.
I. 
Permit expiration and renewal.
(1) 
An excavation permit granted by the Zoning Board of Appeals pursuant to this chapter and pursuant to § 235-89E of Chapter 235, Zoning, shall expire not later than one year after the date on which it is granted.
(2) 
An application for renewal of an excavation permit can be made at any time between the 60th day prior to the expiration thereof and the 30th day prior to the expiration thereof. If an application for renewal of an excavation permit is received less than 30 days prior to the expiration date, it shall not be considered as a renewal and only may be submitted by the applicant as an initial application together with the fee required by § 116-9B.
(3) 
The renewal of all excavation permits shall be subject to the following:
(a) 
Conditions contained in said excavation permit.
(b) 
Conditions and standards contained in this chapter.
(c) 
Conditions and standards contained in § 235-89E of Chapter 235, Zoning.
(d) 
Conditions not previously imposed but determined by the Zoning Board of Appeals as necessary to protect against danger to the public safety, health and general welfare arising due to either physical conditions not disclosed in the original or preceding renewal applications or physical conditions existing at time of renewal substantially different than disclosed in the original or preceding renewal applications.
(e) 
Conditions designed to avoid repetition of any violations of conditions which were part of the original or preceding renewal approvals.
(4) 
Violations.
(a) 
In the event of any violation of this chapter or the terms of a permit, which violation does not create an immediate danger to the public safety, health and general welfare, the town shall issue a notice of violation and order to remedy. If such violation is not corrected as ordered, the violation shall automatically be subject to the provisions of Subsection I(4)(b) below. Both the Town Engineer and the Building Inspector are designated as enforcement officers of this chapter, and each is empowered to act independently.
(b) 
The violation of any of the conditions or standards specified in Subsection I(3) above or the failure to comply with any of the terms of an excavation permit shall cause the automatic revocation of said permit. A revoked excavation permit cannot be renewed. If it is proposed to continue excavation on lands which are the subject of a revoked excavation permit, an initial application for a new excavation permit must be submitted, together with a fee required by § 116-9A.
J. 
Estimate of cost of restoration and computations of quantities. The application shall include an estimate of cost to restore the premises together with the computations of quantities of material to be removed. Renewal applications shall relate to the figures provided on the original application showing the status of the removal operations to that date.
A. 
Special exception use. Upon receiving an initial application for an excavation permit on the form required by the Zoning Board of Appeals, together with the required fee specified in § 116-9, the Zoning Board of Appeals shall consider the matter as an application for a special exception use pursuant to § 235-89E of Chapter 235, Zoning.
B. 
Public notice and hearing required. The decision of the Zoning Board of Appeals on an initial application for an excavation permit shall not be made without the public notice and public hearing required by § 235-89E of Chapter 235, Zoning.
C. 
Automatic renewal; restrictions on. When the Zoning Board of Appeals receives an application for the renewal of an existing excavation permit within the time period specified for renewals in § 116-6I(2), the Zoning Board of Appeals shall renew it automatically unless said excavation permit has been revoked or has expired, except that the Zoning Board of Appeals shall not automatically renew an existing excavation permit if it finds any of the following to be present:
(1) 
Continued excavation pursuant to the terms of the existing excavation permit would pose a danger to the public safety, health or general welfare.
(2) 
Changed conditions within the town require a review of the terms of the existing excavation permit amounting to either the circumstances as specified in § 116-6I(3)(d) or (e).
(3) 
The application is for renewal of a permit of a use in an area designated as a residential zone under Chapter 235, Zoning.
(4) 
If the Zoning Board of Appeals determines that any of these events has occurred, then the Zoning Board of Appeals must hold a public hearing concerning the renewal. The public hearing must be held in accordance with the provisions of § 235-89E of Chapter 235, Zoning. After holding such a public hearing, the Zoning Board of Appeals must make one of the following decisions:
(a) 
Renew the existing excavation permit on its present terms;
(b) 
Renew the existing excavation permit subject to new terms and conditions; or
(c) 
Deny the application for renewal of the existing excavation permit.
A. 
Required. Before the plan approval is granted, the owner or his agent shall provide a cash deposit made payable to the Town of Blooming Grove, or a bond, in an amount to be determined by the Town Board on recommendation of the Town Engineer sufficient to secure the rehabilitation of the site in accordance with the plan submitted in § 116-6H. Such bond shall be approved by the Town Board as to form and sufficiency, and shall run for one year beyond the term of the site plan approval. In the event that the owner or his agent does not fulfill the conditions of the bond, the town shall, after due notice to the owner or his agent and to his bonding or surety company, and upon their failure to comply with the terms of the site plan approval, proceed to rehabilitate the premises in accordance with the plan described above with its own employees or agents or by contract and shall charge costs to the owner, his agent or the bonding or surety company.
B. 
Option of applicant. The decision as to whether a cash deposit or bond is to be given shall be made by the applicant as part of the application, except as provided in Subsection C below. Any change thereafter can only be with the express approval of the Town Board. If a cash deposit, the same shall be deposited to a savings account or certificate of deposit and at such rates and terms as the town fiscal officer shall in his sole discretion determine. The income earned thereon, if any, shall be paid to the applicant only as, if and when actually received by the town; and provided, further, that the applicant is not then in default under the terms of the permit. Otherwise, such accruals are to be held on the same terms and conditions as the original cash deposit.
C. 
Amount limitations. If the amount determined necessary to secure rehabilitation is less than $10,000, only a cash deposit shall be made. If the amount is over $10,000, said amount can be either cash deposit or a bond.
[Amended 7-9-1990 by L.L. No. 1-1990[1] ]
A. 
Application. At the time an initial application for an excavation permit is made, a fee as set by resolution of the Town Board from time to time shall be paid to the town.[2]
[2]
Editor's Note: The Schedule of Fees is on file in the town offices.
B. 
Renewal. At the time each application for an annual renewal of an excavation permit is made, a fee as set by resolution of the Town Board from time to time shall be paid to the town.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
A. 
Every person who shall violate any provision of this chapter shall, upon conviction, be punishable in accordance with Article III, General Penalty, of Chapter 1, General Provisions.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
B. 
Civil penalty. Every person who shall violate any provision of this chapter shall be subject also to a civil penalty not exceeding $500 for each day's continued violation. Such person shall be liable also for all costs, expenses and disbursements incurred by the town, or its agents, employees or contractors, in the removal or remedy of any such violation.
C. 
Enforcement. The criminal and civil penalties specified in Subsections A and B above shall be enforceable and collectible by the town.
D. 
Injunction. The provisions of this section shall not prevent the Town Board from maintaining an action or proceeding in the name of the town in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any of the provisions of of this chapter.
A. 
Prior to September 13, 1971. All excavations within the town which are being conducted on the effective date of this chapter and which were being conducted prior to September 13, 1971 may be continued on their present scale of operations for a period of six months from the effective date of this chapter.
B. 
Subsequent excavations. All excavations within the town which are being conducted on the effective date of this chapter pursuant to an excavation permit previously issued by the Planning Board may be continued in accordance with the terms of said permit for a period ending on the expiration date stated on such permit, or if no expiration date is stated thereon, then one year after its date of issue or six months from the effective date of this chapter, whichever is later.
C. 
Continuation; permit required. Anyone desiring to continue excavations pursuant to Subsections A or B of this section after the expiration of the time periods stated therein must obtain an excavation permit in order to do so. An applicant for an excavation permit who falls within the classification of Subsection A above must follow the application procedure required for an initial application for an excavation permit but the fee payable upon such application shall be that specified for the renewal of an existing excavation permit under § 116-9B.