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 4-11-1988 by L.L. No. 2-1988 (Ch. 137 of the 1975 Code). Amendments noted where applicable.]
GENERAL REFERENCES
Excavations — See Ch. 116.
Streets and sidewalks — See Ch. 204.
Subdivision of land — See Ch. 210.
Zoning — See Ch. 235.
The purpose of this chapter is to promote the public health, safety and general welfare and to ensure that the filling and grading of properties are safely conducted in conformance with Chapter 235, Zoning, and other applicable laws.
Unless specifically defined below, words or phrases used in this section shall be interpreted so as to give them the meaning they have in common usage and to give section its most reasonable application.
ENFORCEMENT OFFICER
The Town Building Inspector or other person so designated by the Town Board.
FILLING
The placement of soil, rubble, spoils, rocks and/or any other appropriate fill on any property for the purpose of raising or elevating any portion of a property. Filling shall not include the burying of garbage, trash or hazardous materials of any kind. Nonhazardous refuse, demolition or construction waste originating within the town may be deemed to be acceptable fill material. No refuse or construction and demolition debris which originates outside the Town of Blooming Grove may be used as fill material.
[Amended 7-9-1990 by L.L. No. 1-1990]
GRADING
The changing or alteration of the surfaces or slopes of lawns or grounds on a site.
The enforcement officer shall administer and implement this chapter by processing all filling and grading applications and referring such applications to the Zoning Board of Appeals.
No person shall conduct or cause to be conducted any land operations to fill or grade any property without securing a permit from the Zoning Board of Appeals, unless an exemption set forth in § 124-7 applies.
The following information or exhibits are required in order to secure a permit.
A. 
Engineering drawings showing the tax lot upon which the activity will be conducted.
B. 
The names and addresses and the section, block and lot numbers of all contiguous property owners, and the names and addresses and section, block and lot numbers of all property owners located within 500 feet of the proposed site.
C. 
A plan showing all existing and proposed contour lines, amount of fill to be placed or displaced, location of trees over eight inches in diameter measured four feet from the ground, and road access to the site.
D. 
An erosion control plan.
E. 
Preliminary copies of any contracts to perform such filling and grading, which contract shall state that it is subject to this chapter, and a copy of this chapter shall be attached to and become a part of such contract.
F. 
Documentation regarding permit status with the New York State Department of Environmental Conservation prior to the issuance of a permit. Any required New York State Department of Environmental Conservation permit must be in effect prior to the town issuing a permit.
G. 
Proof of insurance adequate to cover the intended work pursuant to the terms of the permit. The town shall be named as an additional insured on the applicant's policy. The application shall by a separate instrument agree to indemnify and hold harmless the town from any claims arising out of the intended activity.
H. 
Completion date and any other information which the Zoning Board of Appeals deems reasonable in reviewing the application.
I. 
All applicants are hereby placed on notice that their intended activities may require an excavation permit pursuant to Chapter 116, Excavations, of this Code.
[Amended 7-9-1990 by L.L. No. 1-1990]
A. 
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.
B. 
Prior to the issuance of a permit, the Zoning Board of Appeals shall hold a public hearing on five days' notice. Notice of the hearing shall be posted at the Town Hall and published in the official newspaper. Further, written notice of the hearing shall be given five days prior thereto by the applicant at the applicant's sole cost and expense to all abutting property owners and all other owners of property within 500 feet of the intended site. Proof of such notice shall be given by certified mail, return receipt requested, and at the time of the public hearing the applicant shall file proof of mailing of the notice of public hearing.
[Amended 7-9-1990 by L.L. No. 1-1990]
C. 
The Zoning Board of Appeals may refer the application and supporting documentation to the Planning Board and to other town agencies for review and recommendation. The Zoning Board of Appeals and/or Planning Board may engage the services of an independent consultant to review the application and supporting documentation, the fees for which shall be paid by the applicant. The Town Board may for this purpose require the applicant to deposit funds in advance in a reasonable amount and any surplus shall be returned to the applicant. Within 30 days after the date of said referral, the Planning Board and any other agency 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 7-9-1990 by L.L. No. 1-1990]
D. 
Filling and grading shall be done in such manner as not to result in an increase of surface water runoff onto any other properties and shall not result in any conditions which increases erosion or results in any unstable conditions upon the site, adjacent properties or wetlands.
E. 
The Town Board, or its designee, may contract appropriate surveillance of the site on a twenty-four-hour, seven-day-week basis, until the activity is completed. The applicant shall be required as a condition of the permit to sign the permit authorizing the Town Board, its employees or agents, to enter onto the applicant's property to conduct the appropriate surveillance. Any and all costs for this service will be estimated by the Town Board prior to the issuance of a permit and the applicant will then be required to post a certified check to cover such costs.
F. 
The applicant shall retain a professional engineer licensed to practice in the State of New York, who shall certify as to the contours of the site at regularly scheduled times to be established by the enforcement officer or his designee.
G. 
Any monitoring and/or testing of fill material which is required during the course of operations will be performed by a licensed professional engineer and/or testing lab retained by the town. All costs for this testing shall be reimbursed to the town by the applicant.
H. 
The Zoning Board of Appeals may impose any other reasonable conditions on the permit such as screening, access controls, dust controls, site security, etc., which the Zoning Board of Appeals believes is necessary in order to adequately maintain the site.
I. 
The Zoning Board of Appeals may limit the duration of any permit issued pursuant to this chapter to 60 days or other period deemed reasonable by the Board.
[Amended 7-9-1990 by L.L. No. 1-1990]
A permit to fill or grade property shall not be required for landscaping, grading lawn areas, normal repairs to occupied property, correcting hazards representing an imminent threat to life or property, removal of dead wood, customary agricultural operations or for land development pursuant to, but not prior to, a building permit, approved preliminary or final subdivision plan and/or approved site plan.
The applicant shall be required to post a cash bond in an amount to be determined by the Zoning Board of Appeals, which bond shall be posted with the Town Clerk to guarantee the satisfactory restoration and reclamation of the site and repair of any town roads or other public property which might be damaged as a result of filling and grading the activities of the applicant. In the event that the applicant fails or refuses to make the necessary repairs, the Town Board shall after notice and public hearing pursuant to § 124-9 forfeit the cash bond in order to cover the expense in making such repairs.
A. 
Any filling or grading activities in violation of this chapter shall be deemed a public nuisance.
B. 
Liability for violations.
(1) 
Civil liability. A person who violates any of the provisions of this chapter or terms of any permit issued hereunder or who fails to perform any duty imposed by this chapter shall be liable to a penalty not to exceed $1,000 per day of such violation and, in addition, such person may be ordered to abate such violation. Violation of a permit condition shall constitute grounds for abatement and for revocation of such permit.
(2) 
Criminal liability. Any person who, having any of the culpable mental states defined in § 15.05 of the New York State Penal Law, violates any of the provisions of this chapter or terms of any permit issued hereunder or who fails to perform any duty imposed by this chapter shall be guilty of an unclassified misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $2,500 nor more than $10,000 per day of violation, or by imprisonment for a term of not more than 90 days, or by both such fine and imprisonment. If the conviction is for an offense committed after a first conviction of such person under this subsection, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment for not more than six months, or by both.
(3) 
In addition to or in lieu of the above penalties, the town may enter upon the premises and correct the conditions caused by the violation of any provision of this chapter or permit issued hereunder. In such event, the property owner shall reimburse the town in an amount equal to 125% of the actual costs incurred in correcting said conditions, which amount includes, but is not limited to, administrative, legal and engineering costs incurred as a result of said violation.
(4) 
This chapter expressly supersedes any inconsistent provision of § 135 of the Town Law and any other special law.
C. 
Notice of violation; service.
[Amended 7-9-1990 by L.L. No. 1-1990]
(1) 
Wherever the enforcement officer determines that a violation exists, a notice of violation shall be issued. Such notice shall state the nature of the violation; the provision or term violated; and a reasonable time to abate such violation. Nothing herein shall be construed so as to prevent the town from requiring the immediate abatement of a violation. The time to remedy shall be measured from the date the town determines a violation may exist.
(2) 
A notice of violation shall be served upon a person of suitable age and discretion either residing or employed at the premises where the violation exists; or by service by certified mail upon the owner indicated on the current tax role of the town to the address indicated therein and by posting a copy of the notice at the premises where the violation exists.
D. 
Administrative appeal and hearing.
(1) 
Any person or owner of property who is served a notice of violation shall have the right to make an appeal to the Town Board. All appeals shall be made within seven days of service of a notice of violation and shall be simultaneously submitted to the enforcement officer and the Town Board. The making of an appeal shall not stay an order to abate contained in the notice of violation.
(2) 
The Town Board shall set a date and time for a public hearing on any appeal. A notice of hearing shall be made by mailing a copy of such order by certified mail to the addresses of those persons having a recorded interest in real property in the premises as shown by the records of the County Clerk and by posting a copy of such order on said premises. The failure to provide notice to each such person shall not invalidate subsequent proceedings pursuant to this chapter. The public hearing shall be set for a date not less than 15 days after the notice of hearing is mailed.
[Amended 7-9-1990 by L.L. No. 1-1990]
(3) 
Public hearing; determination.
(a) 
The Town Board shall conduct a public hearing at the time and place specified in the notice of hearing. The hearing may be adjourned from time to time and shall continue until all interested persons in attendance are heard. No formal rules of evidence need apply nor shall a stenographic transcript be required.
(b) 
The property owner shall have the right to present evidence and examine witnesses to show why penalties should not be assessed and/or why an order to abate should be suspended.
(c) 
The Town Board shall make findings and make a determination. Such determination shall indicate the basis and rationale of the decision, shall state the dollar amount of fines and shall be supported by substantial evidence.
(d) 
Any fines imposed and the costs to the town of the proceeding in such event shall be immediately due and payable and shall be paid within 15 days of their imposition.
(4) 
The determination of the Town Board may be reviewed in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided that such proceeding is commenced within 30 days of such determination. Judicial review shall not stay any order to abate or stay payment of any fine imposed.
[Added 7-9-1990 by L.L. No. 1-1990]
Permit application fees may be established and amended from time to time by resolution of the Town Board.