[HISTORY: Adopted by the Board of Trustees of the Village of Westbury 2-3-1943 (Ch. 41 of the 1964 Code). Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Topsoil Ordinance of the Village of Westbury," regulating excavations other than for the construction of walls, driveways, sidewalks, buildings and parts thereof, or for farming or for a public use or purpose.
When used in this chapter certain words or combinations of words shall be defined as follows:
- A person authorized in writing to do or perform for another person the thing or the act which he does or performs.
- CONSTRUCTION OF A WALL, DRIVEWAY, SIDEWALK, BUILDING OR PART THEREOF
- Construction pursuant to a building permit issued by the authorized officer or employee of the Incorporated Village of Westbury.
- The disturbance of the topsoil or the subsoil by other than natural causes.
- The cultivation of the soil for the growing of plants, flowers or other vegetation.
- The owner of the land as shown by the public records in the office of the recording officer of the County of Nassau or by proof of title acquired from such owner of record.
- Includes a natural person, firm or corporation.
- PROPERTY LINE
- The dividing line between the highway, road or street and the property where it adjoins a highway, road or street or between the property and an adjoining property.
- PUBLIC USE OR PURPOSE
- A public improvement made by a municipality or agent of a municipality on the land where the excavation is made or on the road, street or highway adjoining such land.
- Consists of the under layer or layers of the ground other than topsoil. It includes sand, gravel, stones, rocks and clay in such subsoil.
- Consists of the upper layer or layers of the ground consisting of loam and organic matter in which layer or layers pasture grass will readily grow and be sustained as distinguished from subsoil.
The masculine pronoun shall be deemed to include the feminine or neuter as the case requires.
No excavation of topsoil or subsoil shall be commenced or progressed within the Incorporated Village of Westbury for any purpose other than a public use or purpose or the construction of a wall, driveway, sidewalk, building or part thereof or as permitted by § 117-8 of this chapter without a written permit for such excavation first obtained from the Village Board of the Incorporated Village of Westbury.
Before such a permit shall be issued a written application therefor shall be filed with the Village Clerk of the Incorporated Village of Westbury, by the owner or the agent of the owner of the land upon which it is proposed to make or allow such an excavation. Such application shall be in duplicate, shall be signed by the applicant and shall contain the following information:
The full name of the applicant and his address.
The full name of the owner of the land upon which it is proposed to make the excavation and his address.
If the applicant be a person other than the owner, whether such applicant is the agent for the owner and evidence thereof.
A statement of the nature and three dimensional extent of the excavation proposed and particularly whether topsoil only is to be excavated or subsoil only is to be excavated or both topsoil and subsoil are to be excavated.
A statement that the applicant has read this chapter or that this chapter has been read to the applicant and that if a permit is issued to him he will accept such permit subject to all the terms and requirements of this chapter.
Such application for such a permit shall be accompanied by the following map and documents which shall be filed therewith and are hereby made a part of such application:
A map or plan of the property upon which it is proposed to make such excavation drawn to a scale. Such map shall not be less than 10 inches by 16 inches in size. Such map shall be prepared by a duly licensed professional engineer or land surveyor of the State of New York; shall be certified by him; shall show all dimensions and courses of the property, all streets adjoining the property, the location of all buildings thereon and the outline of the area proposed to be excavated. Such map shall also show at points indicated which shall be not more than 100 feet from each other over the whole area proposed to be excavated the elevation of the property as the same will exist after completion of the operations for which a permit is requested. Such elevations shall be determined from the Nassau County bench marks as published by the Department of Public Works of the County of Nassau.
A Certificate of the Commissioner of Public Works of the County of Nassau or his duly authorized deputy that such proposed excavation and the finished grades of said property as shown on said map will not interfere with the comprehensive drainage plan of the County of Nassau and will not endanger any public road, street or highway, or any public property.
A certified copy of the deed or copies of proof by which the applicant claims ownership of the property with the liber, page and place of record thereof, if recorded.
Any permit issued pursuant to this chapter shall be subject to the following rules and regulations which are hereby made a part of such permit but need not be included therein:
No such excavation of topsoil shall be made within 10 feet of any property line of the property on which such excavation is made. No such excavation of subsoil shall be made within 20 feet of any such property line.
Where subsoil is to be excavated to a depth in excess of six feet, barricades shall be erected and maintained for the protection of the public consisting of a substantial fence not less than six feet in height completely surrounding the property with no openings except necessary gates for ingress and egress.
In order to prevent flying dust, no open, uncovered trucks shall be used, and the parts of the excavations or conveyors which carry or discharge the material excavated shall be covered. Tarpaulins may be used for such coverings, provided that they accomplish the purpose in the judgment of the inspector of the Incorporated Village of Westbury assigned to the operation or, if no inspector is assigned to the operation, in the judgment of the Mayor of said village. The material excavated shall be discharged from the excavator or conveyor to the truck through an enclosed chute which shall confine therein the dust from such material. Where bulldozers or other mechanical means are used to remove topsoil only, dust down or its equal shall be spread.
Where topsoil only is excavated, a minimum of four inches of compacted topsoil shall remain at all places over the area of the excavation.
Where the excavation shall be or shall include subsoil the excavation shall be immediately refilled with clean, nonburnable fill containing no garbage, refuse, offal, or any deleterious or unwholesome matter, and topsoil shall be spread and rolled to a finished depth of four inches over the refill so that such refill and topsoil shall restore the area excavated to the finished grades own on the map presented with the application for the permit.
After restoration of the topsoil where the subsoil has been excavated or after the removal of topsoil only, the topsoil replaced or the topsoil left, as the case may be, shall be immediately reseeded with a mixture of 30% Kentucky Blue, 30% Timothy and 40% Perennial Rye at the rate of 25 pounds to the acre, until growth is established. Because such reseeding mixture will not root and grow to accomplish the purposes thereof at all times during the calendar year, permits will be issued or extended for operations to be carried on and completed only between March 1 and June 1, and between July 15 and October 15 of any year.
A permit issued under this chapter shall expire by limitation 30 days from the date of its issue unless extended by the Village Board.
The Village Board of the Incorporated Village of Westbury may, at any time during the operations of the permittee under the permit, place an inspector for the village on the site where such operations are being carried on, and, in the event such an inspector is so assigned to such operations, the permittee shall reimburse the village for the amount not in excess of $10 per day for each day employed on such operation. The inspector may from time to time require that the permittee have test holes dug to see that this chapter is being complied with.
Before the issuance of a permit, the person, firm or corporation to whom the permit is to be issued shall execute and file with the Village Clerk of the Incorporated Village of Westbury a bond approved by the Village Board of said village in the amount of $100,000, with a surety company authorized to do business in the State of New York as surety and conditioned for the faithful performance of the terms and conditions contained in this chapter, the observance of all municipal ordinances and to indemnify the Incorporated Village of Westbury for any damage to the village.
[Amended 3-16-1989 by L.L. No. 3-1989 ]
Fees for permits to be issued pursuant to this chapter shall be as set from time to time by resolution of the Board of Trustees.
Nothing contained in this chapter shall require a person to obtain a permit for the removal of topsoil or subsoil from one part of a parcel of real property owned by him to another part of the same parcel when such removal is necessary as an accessory use or is made for the purpose of improving said property. However, when the topsoil is removed from one part of a person's land to another, for the purpose of the building of a residence or other structure thereon, for which building permits are to be sought from the Building Department of the Village of Westbury, such permit shall bear on the face thereof the provision that at least six inches of compacted topsoil shall remain or shall be placed upon all unexcavated areas with the exception of sidewalks and driveways, on which no structure shall have been placed. The certificate of occupancy, under the Building Zone Ordinance of the Village of Westbury, shall not be issued unless and until satisfactory proof shall be furnished in the nature of a written certificate by the owner, applicant or his licensed engineer or surveyor, certifying that the requirements of the permit have been fulfilled.
[Amended 6-6-1985 by L.L. No. 4-1985]
Any person, firm or corporation violating this chapter or any part thereof shall be liable for and shall forfeit and pay the sum of $250 for each such offense. Each day that a violation is permitted to exist shall constitute a separate offense. Any violation of this chapter or any part thereof shall constitute disorderly conduct and the person violating the same shall be a disorderly person.
No provision of this chapter is intended to and shall not be construed so as to repeal, amend, vary or modify any provision of Chapter 248, Zoning, of the Incorporated Village of Westbury.
The ordinance adopted by the Incorporated Village of Westbury on the 12th day of June, 1942, known as "Village Ordinance No. 7 of the Village of Westbury, regulating excavations other than the construction of walls, buildings and parts thereof," is hereby repealed except as to offenses committed thereunder which may be prosecuted as fully and to the same extent as if such repeal had not been effected. Such repeal, however, shall not affect any outstanding permit nor shall it be deemed to extend the same, and as to any outstanding permit, said Ordinance No. 7 shall be deemed in effect to govern operations thereunder and liabilities under said operations of the permittee and his surety or their agents or employees, provided that any extension or renewal of such permit must be applied for under this chapter and, if issued, shall be issued pursuant to the terms of this chapter.