[HISTORY: Adopted by the Town Board of the Town of Harrison as indicated in article histories. Amendments noted where applicable.]
The Town Engineer is hereby given, upon the direction of the Town Board, the right and power to fill in such excavated lands or properties in the Town of Harrison as may be determined by the Town Board, after a hearing held as provided in § 133-2 hereof, to constitute a hazard to public safety if the owner of record thereof shall not fill or cause the same to be filled after notice to fill the same is given as provided in § 133-3 and § 133-4 hereof.
Such lands shall be filled with clean, nonburnable fill containing no garbage, refuse, offal or any deleterious or unwholesome matter.
The Town Board may, upon its own motion, call a public hearing to determine whether any excavated land or property in the Town of Harrison constitutes a hazard to public safety, upon not less than 10 nor more than 20 days' notice, mailed to the record owner of such land or property at his last known address and published at least once prior to such hearing in a newspaper of general circulation in the town, stating the purpose of the hearing, describing in general terms the land or property which shall be the subject of the hearing and stating that all persons interested in the subject matter thereof shall be given an opportunity to be heard.
If the Town Board, after a public hearing pursuant to § 133-2 hereof, shall determine that the excavation which was the subject of such hearing constitutes a hazard to public safety, it may adopt an order directing the owner thereof to fill the same in accordance with this article and such specifications and directions as the Town Board may adopt in the interests of the public safety, health and welfare and within such time as the Town Board may determine to be reasonable, depending upon the size, location and nature of the excavation and the availability of suitable fill. If said land or property is not filled in accordance with such order, the Town Board may direct the Town Engineer to fill such land or property or cause the same to be filled in accordance with § 133-1 hereof.
A notice of the adoption of the order provided for in § 133-3 hereof shall be mailed to the owner of record of such lands and property at the address shown on the last preceding assessment roll by registered mail at least 30 days prior to the date on which such owner is required to commence the filling of such lands or property; shall describe the property by courses and distances or by reference to the Tax Assessment Map of the Town of Harrison; and shall state that if the filling of such land or property, in accordance with the provisions of this article, shall not be completed on or before the date determined by the Town Board for such completion, the Town Engineer shall fill the same, and the cost thereof shall be assessed against such lands and property as provided in § 133-5 hereof.
The cost of filling by the Town Engineer of excavated lands and properties, pursuant to this article, shall be assessed against such lands or property in accordance with the provisions of § 157 of the Highway Law.
[Added 2-19-1986 by L.L. No. 2-1986]
Any person violating any of the provisions of this article shall, upon conviction, be punishable by a fine not to exceed $250 or by imprisonment for a term not to exceed 15 days, or both.
[Adopted 2-4-1970 as L.L. No. 1-1970]
It is the established policy of the Town of Harrison that the natural topography of the land of the town and the safe and natural flow and drainage of waters therethrough are public assets which should be preserved and safeguarded and that hazardous, indiscriminate or uncoordinated excavation and regrading pose substantial dangers to the public health, safety and welfare, which ought to be minimized for the safeguarding of the citizenry. This article is adopted for the purpose of promoting such policy. It is hereby declared that the various features of such topography, including the topsoil and other materials which are naturally a part of the land, the shape or contour of the land, the plant and animal life that is fostered upon the land and the water or flow thereof upon the land are of prime concern to the people of the Town of Harrison, and it is intended by this article that no changes shall be permitted in such topography, except those which are absolutely necessary in order to permit the proper and appropriate use of the land, and then only in such manner as will adequately safeguard the public health, safety and welfare.
For the purposes of this article, the meanings of the words and expressions set forth below shall be as follows:
- COMMERCIAL EXCAVATION
- Excavation for the principal purpose of removing topsoil, rock or other physical matter which is a natural part of the earth.
- The creation by any process or means, mechanical or otherwise, including, without limiting the generality of the foregoing, pile driving, boring, preparation for footings, swimming pools or foundations, laying of cable or pipe and draining and diverting watercourses, of any hole, pit, trench, shaft, tunnel or other aperture in the ground or hillside. The term shall exclude, however, the creation of an aperture which, at every point, is both less than three feet six inches in depth and less than 300 square feet in area.
- Any individual, partnership, corporation, association, company or organization of any kind.
- The lot or parcel of land on which the excavation or regrading is to be performed.
- Any operation or process which alters the slope, grade or contour of land.
No person shall permit, suffer or cause the excavation or regrading of property owned by him or subject to his control, unless he shall have first obtained a permit in accordance with the provisions of this article, and unless such excavation or regrading is performed in compliance with the provisions hereof.
The application for an excavation or regrading permit shall be made by or on behalf of the owner or other person having control of the property, in writing, on forms furnished by the Building Inspector and shall be verified by the applicant. Such application shall contain the following information:
The name and address of the applicant and the capacity in which he makes such application.
The name and address of each person other than the applicant having title to or control of the property as owner, lessee or otherwise.
The name and address of the person performing the excavation or regrading.
The estimated cost of the work and the estimated time required for its completion.
The purpose of the work, including the intended use of any building or other structure to be erected in connection therewith.
Whether any other permit has been issued to any person named under either Subsections A or B hereof during the two years prior to the date of the application relating to the property or any other property in the Town of Harrison and whether any permit has been issued for any purpose to any person relating to the property.
The location of the property and its relation to neighboring properties, showing all buildings, roads, watercourses and bodies of water, within 200 feet of the excavation or regrading work area or 25 feet from the boundary of the property, whichever is less.
Plans of the proposed excavation or regrading, indicating location and scaled dimensions of the work area, of the proposed buildings or other structures, if any, of any paved area, of any underground utilities, sewage disposal facilities or other structures, and the existing and proposed relative elevations of the work area and the contiguous land to a distance of 200 feet from the boundary of such work area or 25 feet from the boundary of the property, whichever is less. Such plans shall also indicate the specific location of all live trees in the proposed excavation or regrading site and within 25 feet of the boundaries of such work area, with a note indicating whether or not each such tree is to be removed. If it shall appear that strict compliance with the provisions of Subsections G and H hereof, with regard to the plans to be furnished with the application, shall cause undue hardship to the applicant, the Building Inspector may modify such requirements to the extent necessary to afford relief from such hardship. In considering such relief, the Building Inspector shall take into account the projected cost of compliance, the scope of the work and the purposes to be served by compliance with this article.
Such further information as the Building Inspector may, by rule filed with the Town Clerk, require as necessary or appropriate for the administration and enforcement of this article.
An application for a permit to perform a commercial excavation shall comply in all respects with the requirements of § 133-10 and in addition shall be accompanied by the following:
A statement setting forth the location and present status of any previous commercial operation on the property.
A topographical map of the area to be excavated, showing existing and finished contours and indicating the amounts to be excavated; location of storage piles: existing and proposed slopes; existing and proposed drainage, including the present and proposed level of any impounded water, plans for erosion control, location of all proposed structures and all excavating or construction equipment and the location of all existing and proposed access roads to the excavation site.
A statement by the person or firm performing the work, as named in the application, setting forth a detailed breakdown and calculation of the estimated cost of the work and the estimated time required for its completion, as shown in such application, certified by a licensed professional engineer.
A surety bond, in a form acceptable to the Town Attorney and in the penal sum computed in accordance with § 133-13B hereof, shall be filed with the Town Clerk prior to the issuance of an excavation or regrading permit in the following cases:
Where the application is for commercial excavation.
Where the estimated cost of the work, as shown in the application or as reasonably calculated by the Building Inspector, exceeds $5,000.
Where the estimated time of completion, as set forth in the application or as reasonably calculated by the Building Inspector, exceeds 60 days from the date of issuance of the permit.
The surety bond required by § 133-12 shall be conditioned upon compliance by the applicant with all of the provisions of this article and any other statute, ordinance, local law, regulation or rule, including any rules and regulations promulgated by the Building Inspector hereunder, and shall provide for indemnification to the town for any cost, expense or damage incurred or sustained by the town by reason of any such violation, including the cost to the town of remedying such violation or curing any hazard to public safety or by reason of any negligence or other fault on the part of the applicant in performing the work provided for in the application. A bond furnished by reason of the extension of the work to within 10 feet of a property line shall be similar, except that it shall provide for enforcement thereof by the owner or person in possession of such adjoining property as third-party beneficiary of such bond with respect to cost, expense or damage incurred or sustained by such beneficiary.
The penal amount of such surety bond shall be as follows:
For any commercial excavation; in such amount as the Town Board may fix.
For an excavation or regrading at an estimated cost in excess of $5,000: $2,500, plus 25% of the amount by which such estimated cost exceeds $5,000.
For an excavation or regrading involving an estimated time of completion in excess of 60 days: $1,000 for each month or part thereof from the date of issuance of the permit to the estimated completion of the work.
Where the work extends to within 10 feet of a street line or property line: $1,000.
Where the application requires the furnishing of a bond in differing amounts on two or more separate grounds: the higher amount as provided herein.
For good cause shown, the requirements of this article with respect to the furnishing of s surety bond or the terms or amount thereof may be modified or dispensed with by the Town Board at the instance of the Building Inspector or the applicant for the permit.
An excavation or regrading permit shall not be required for the following:
Regrading for landscaping purposes in which topsoil is removed from one part of a lot and deposited elsewhere on the same lot, provided that a covering of at least four inches of topsoil shall remain over all exposed surfaces and such cover shall be planted or seeded and mulched repeatedly as necessary until the area is stabilized.
Excavation in connection with the erection of a building for which a building permit has been duly issued by the Building Inspector, to the extent of the ground area of such building and so much of the area contiguous thereto, not exceeding twice the ground area of the building, as shall be necessary for the construction of such building.
Excavation for the purpose of planting trees or shrubs or erecting poles or posts.
Excavation or regrading for which a license or permit has been issued under any other provision of law.
Nothing in this section shall be deemed to excuse the person permitting or causing such excluded excavation or regrading from complying with any provisions of this article other than those requiring a permit.
Excavation and regrading shall be performed in accordance with the standards set forth in this section, and no permit shall be granted for excavation or regrading unless the application for such permit shall show that the work is to be performed in conformity with such standards.
The standards for excavation and regrading shall be as follows:
No interference with the natural drainage or water runoff of the area in which the property is situated (whether by reason of excavation, regrading, diversion of a stream or watercourse, impounding of water or otherwise) shall be permitted, either during the course of the work or after completion thereof, unless alternate means of drainage which do not affect the natural drainage or water runoff of the remainder of the area have been provided for by the applicant and have been approved in advance by the Building Inspector.
Any lakes or ponds that are created shall have a sufficient depth and inflow and outflow of water to prevent their becoming stagnant in dry periods.
Topsoil which is removed in connection with any permitted excavation shall be replaced to a depth of at least four inches over all exposed ground surfaces, and said restored surface shall be planted or seeded and mulched repeatedly as necessary until the area is stabilized.
Topsoil and any other physical matter which is a natural part of the earth may be removed from the property only to the extent that the amount so excavated is in excess of the amount of such material to be reused on the site of the improvement. If it is intended to remove topsoil or other material from the property, the application shall state the amount by which the excavated material is expected to exceed the reused material, and the amount of such excess, which is the amount that may be removed from the property, shall be stated in the permit.
No processing of excavated material by a rock crusher or similar equipment shall be performed on the property.
Commercial excavation shall comply with all the standards set forth in Subsection B, except Subsection B(5) of this section and, in addition thereto, with the following further standards:
No excavation shall be closer than 50 feet to any street line or other property line, and no excavation which is below the grade of a street line or property line shall be closer than 100 feet to such street line or property line.
The final slope of any excavation shall not exceed the normal angle of repose of collateral material, except where a suitable retaining wall, as shown on approved plans, is built to provide collateral support.
No rock crusher or similar apparatus or equipment used for the processing of excavated materials shall be operated within 200 feet of any street or property line.
Truck access drives to the excavation work area shall be located so as to minimize danger to traffic and nuisance to surrounding properties. In order to prevent dust, such drives shall be kept wet, oiled, treated with chemical dust deterrents or paved.
Fences or barricades shall be erected to conceal the work area and to protect pedestrians and vehicles. Any open pits and quarries shall be enclosed by fencing until they are refilled. The uphill side of sidehill excavations shall be permanently fenced.
No excavation shall be permitted which would interfere with public utility systems or which would create or aggravate any condition detrimental to the public health and safety.
All pits, quarries, holes or other excavated areas shall be refilled with clear nonburnable fill containing no garbage, refuse or harmful matter to the new approved grade of the property. The Town Board may specifically waive the provisions of this subsection for excavations made into the side of a hill, provided that it shall find that refilling is not necessary to satisfy all of the provisions of this section.
Storage piles of materials, including waste materials, shall be located only at approved places, and in no case any closer to property lines than is permitted for excavation. After completion of excavation operations, waste materials shall be used in filling all open pits, quarries, etc. Piles of excess waste materials shall be leveled.
Notwithstanding any other provision of this article, the Building Inspector shall not issue a permit if it appears from the application that the performance of the work described therein or any purpose for which such work is to be performed would constitute a violation of any applicable statute, ordinance, local law, rule or regulation.
[Amended 2-21-2007 by L.L. No. 1-2007]
The Building Inspector shall charge a fee for an excavation or regrading permit as set forth in the most current resolution of the Town Board fixing the fee pursuant to § 137-1 of the Town Code.
Excavation and regrading permits, except with respect to removal of topsoil and other materials, shall expire one year from the date of issuance, unless extended by the Town Board.
Permits to remove topsoil or other materials shall expire 90 days from the date of issuance, unless extended by the Town Board.
This article is to be enforced by the Building Inspector and shall be applicable to all excavations or regrading operations which are in progress at the time this article becomes effective.
The Building Inspector shall refer every application for a commercial excavation permit and may refer any other application to the Engineering Department for review. In such cases the Engineering Department shall advise the Building Inspector of any objections or recommendations with respect to such application which may be consistent with the standards and purposes of this article.
The Building Inspector shall act upon every application for a permit hereunder by granting or denying such application within 45 days from the date of final filing thereof, unless the time to so act is extended by agreement of the applicant.
No excavation or regrading shall be continued or extended in area after the effective date of this article without first securing a permit therefor; provided, however, that any applicant who shall have commenced excavation or regrading prior to such effective date may apply to the Town Board for relief from any provision of § 133-15 hereof, where compliance therewith would result in an unreasonable and substantial hardship to such applicant.
Any person applying for a permit hereunder and any person authorizing or consenting to such application shall be deemed to have authorized the Building Inspector to go upon the property, at any reasonable time, for the purpose of inspecting the same in order to determine that the provisions of this article are being or have been complied with.
The owner, lessee, tenant or other person in possession, the person performing an excavation or regrading and any other person who violates or causes or participates in the violation of the provisions of this article, upon conviction thereof, shall be punishable by a fine of not to exceed $250 or by imprisonment for a term not to exceed 15 days, 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.
[Amended 2-19-1986 by L.L. No. 2-1986]
Conviction for a violation of this article shall constitute and effect an immediate revocation of any permit granted hereunder.
The Building Inspector may suspend the performance of any excavation or regrading for a period not exceeding 30 days and also may temporarily revoke any permit issued hereunder or under any other provision of law purporting to authorize such excavation or regrading for a like period, at any time, in the event of an actual or threatened violation of this article.
The Building Inspector shall accomplish such suspension or temporary revocation by delivering, personally or by certified mail, a written notice thereof, stating the particular grounds therefor, to any of the persons described in Subsection A hereof. Thereafter, during the period of such suspension or temporary revocation, no excavation or regrading shall be permitted or performed.
Any person aggrieved by such suspension or temporary revocation may appeal therefrom to the Town Board, who may affirm, modify or reverse the Building Inspector's action or make such other disposition of the appeal which may be consistent with the purposes of this article.
In addition to the above provided penalties and punishment and such other remedies as may now or hereafter be provided by law, the Building Inspector may maintain an action or proceeding in the name of the town in any court of competent jurisdiction to compel compliance with or to restrain by an injunction the violation of such article and to recover, by appropriate civil remedies, any cost, expense or damage sustained by the town in consequence of such violation, including an action to enforce the surety bond provided for in this article.