Borough of Andover, NJ Land Disturbance

Editor's Note: The title of this chapter was changed from Soil Removal to Land Disturbance 9-14-1992 by Ord. No. 298.

§ 113-1 Legislative findings.

[Amended 9-14-1992 by Ord. No. 298]

The Borough Council finds and determines that the unregulated and uncontrolled excavation and removal and relocation of soil in aggregate quantities exceeding 40 cubic yards in any given calendar year for sale or use other than on an individual tax lot may result in conditions detrimental to the public safety, health and general welfare, substantially hampering and deterring the efforts of the borough to effectuate the general purpose of municipal planning.

§ 113-2 Title.

[Amended 9-14-1992 by Ord. No. 298]

This chapter shall be known and may be cited as the "Andover Borough Land Disturbance Chapter."

§ 113-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

APPROVED PLAN

A plan for soil removal approved by the Planning/Zoning Board and by the Borough Council pursuant to the provisions of this chapter.

[Amended 9-14-1992 by Ord. No. 298]

ARABLE SOIL

Soil that, when dry, contains not less than 4% by weight of organic matter and the balance of which is mineral matter.

MULCHING

The application of plant residue or other suitable materials to the land surface to conserve moisture, hold soil in place and aid in establishing plant cover.

PERMIT

A certificate issued to perform work under this chapter.

SOIL

All unconsolidated mineral and organic matter of any origin, including sand and/or gravel.

TOPSOIL

The arable soil within eight inches of the surface.

§ 113-4 Permits.

No person or entity shall excavate for the removal of soil, sand, gravel or any other unconsolidated natural deposit for sale or use, or otherwise remove, store or stockpile soil, sand, gravel or other unconsolidated natural deposit for sale or use on any given tax lot, unless a soil removal permit has first been obtained, as herein set forth. However, the provisions of this chapter shall not apply to the removal of soil, sand, gravel or other unconsolidated natural deposit, stone or rock if:

[Amended 9-14-1992 by Ord. No. 298]

The amount of said removal is 40 cubic yards or less;

The removal is associated with and incidental to the excavation required for the construction of a single-family dwelling and associated lawns, driveways, accessory buildings, patios and retaining walls on a single lot in accordance with the building permits issued by the Construction Official;

(3)

The removal is associated with the excavation required for the construction of an in-ground or aboveground swimming pool;

(4)

The removal is associated with the excavation required for the construction or reconstruction of individual sewage disposal systems in accordance with permits issued by the Board of Health;

(5)

The removal is limited to a disturbed area of not more than five acres and is associated with and incidental to the construction of an approved site plan, if the material removed is utilized as fill material on the subject property or the amount removed from the site does not exceed twice the volume of the material displaced by the building foundation or foundations.

(6)

The removal is associated with and necessary for the reconstruction and/or construction of roads, drainage systems, sanitary sewers, flood control measures or other improvements approved on the subdivision plat by the reviewing municipal body or undertaken by any governmental agency; or

(7)

The removal is associated with and incidental to the regrading of the yard on an existing developed single lot for the purposes of making or installing drainage improvements, driveways or other necessary improvements.

No application for a permit shall be made pursuant to this chapter until site plan approval has been granted by the Planning/Zoning Board. The Borough Council shall be the issuing authority for the soil removal permit.

[Amended 9-14-1992 by Ord. No. 298]

Nonconforming uses. In the case of soil removal operations presently in existence as nonconforming uses, the owner or operator shall file, within 60 days from the adoption of this chapter, an application for a permit under this chapter with the Planning/Zoning Board. The Planning/Zoning Board shall consider the application and make its recommendations to the Borough Council within 65 days from the date of the filing of the application.

[Amended 9-14-1992 by Ord. No. 298]

Application requirements. An application to the appropriate borough body for a conditional use permit shall be accompanied by the following:

A map showing existing contour lines at two-foot intervals.

An aerial photograph of the site.

(3)

Proposed contour lines, at two-foot intervals, after removal of the soil.

(4)

All existing structures on the subject premises and within 200 feet thereof.

(5)

All existing roads and drainage on the subject premises and within 200 feet of the property.

(6)

Location of topsoil storage areas.

(7)

Methods of controlling silting of downstream properties.

(8)

The elevation of the water table.

(a)

The determination of the elevation of the water table shall be made by one of the following methods:

Test pits with a backhoe.

Probes or soundings.

Geophysical tools.

Rotary drilling.

Continuous flight auger drilling.

(b)

The test method utilized shall make exploration for the water table to a depth of at least 10 feet below the proposed final grade. A three-hundred-foot grid pattern shall be used in determining the water table with a minimum of four locations for a five-acre tract. The applicant shall notify the Borough Engineer at least seven days in advance of conducting the tests to determine the water table, and the Borough Engineer, or his representative, shall be present and witness the tests when conducted. A certification of the applicant's engineer shall be inserted on the map which shall read as follows: "I hereby certify that the water table is (or is not, whichever is applicable) within 10 feet of the proposed final contour as shown on this map." The Engineer's certification shall also include the names and addresses of the persons witnessing the tests utilized to determine the water table, the dates that the tests were taken and the test methods utilized, and a log of the materials found in the test holes or pits.

(9)

The map submitted by the applicant showing proposed contours shall divide the property from which soil is to be removed, into five-acre sections. The application shall indicate on the map the numerical sequence in which the sections are to be worked. Not more than one section shall be worked at any one time pursuant to § 113-7K herein.

(10)

All existing trees, 2 1/2 inches in diameter, measured 4 1/2 feet from the ground level, and the plan for replacing the same number of trees with trees having a diameter of 2 1/2 inches measured 4 1/2 feet from the top of root level.

(11)

The application shall also indicate the total number of cubic yards to be removed and the length of time within which the proposed operation shall be completed, which shall normally not be for longer than five years. Where a total project is not capable of being completed within five years, it shall be broken down into two sections, one of which shall be completed within five years and the other within such further period not exceeding five years as the appropriate borough body may determine.

(12)

All of the requirements of the borough ordinances governing site plan review shall apply to soil removal applications and a site plan application shall be filed with the soil removal application and all of the requirements of the site plan, including the fee provisions, shall be complied with.[1]

Editor's Note: See Ch. 109, Site Plan Review.

(13)

An environmental impact statement containing the following information, if applicable to the development, prepared by competent licensed professionals:

(a)

Description of development. The contours, buildings, roads, paved areas, proposed grading or regrading, existence of natural streams and the relationship of the premises to surrounding properties and existing utility lines shall be described.

(b)

Sewage facilities. It shall be shown that sewage can be disposed of through facilities adequate to preclude water pollution.

The facility shall comply with state and Municipal Board of Health regulations.

The type or types and volume of sewage effluent shall be specified.

The type and method of treatment for the proposed treatment facility shall be described.

If disposal is not to be in a stream, detailed data shall be supplied on underlying geology, plus a current and complete soil analysis, percolation tests for every five acres, elevation of the water table for each five acres if within 12 feet of the proposed final contour, or certification that it is not within 12 feet of proposed final contour, and areas overlying, except that in aquifers the requirement shall be 15 feet. This determination shall be made by an approved method by a professional engineer. The following information shall also be supplied:

Topography.

Location of aquifers.

Depth and capacity of all wells within 500 feet of site.

[d]

Any other pertinent data.

[5]

If disposal is off-site, the following information shall be supplied:

Plant design capacity.

Monthly average flows for past 12 months.

Enforcement action against plant.

[d]

Capacity of plant to treat industrial or commercial wastes, if applicable.

[e]

Receiving water quality standards.

[f]

Stream quality data from state, federal or private sources.

[g]

Stream flow [minimum average seven-consecutive-day flow with a frequency of occurrence of 10 years].

[h]

Plans for sewage treatment facility (local plans).

[i]

State regional planning policy, including interim basin plan.

[j]

Flows expected from other approved subdivisions which are dependent upon the sewage treatment facilities in question.

[6]

The environmental impact statement shall contain a conclusion, by a qualified professional, as to the impact of the above-mentioned environmental elements.

(c)

Water supply. It shall be known that an adequate potable water supply is available and that drawing that supply shall not threaten the use of other land nearby.

The plan shall be in compliance with state and local regulations.

If supply is from public or private facilities off-site, the following data shall be supplied:

Amount of diversion granted by the division of water resources, maximum gallons of water pumped during any month.

Present diversion, maximum gallons of water pumped during the past 24 months.

Diversions expected from other approved subdivisions which are dependent upon the present diversion granted by the Division of Water Resources.

If supply is from on-site sources, the following information shall be supplied:

Location and depth of all private and public water supplies within 500 feet of the realty improvement.

Location, depth and adequacy of proposed private or public water supplies to serve the proposed realty improvement.

Geologic description of subsurface conditions, including expected groundwater yields, using published geologic reports or report by a geologist.

No preliminary approval shall be granted until the Division of Water Resources has determined that the proposed water supply and sewage disposal facilities are adequate when such determination is requested by an appropriate borough body.

(d)

Drainage. It shall be shown that stormwater runoff from the site is so controlled that on- and off-site erosion is neither caused nor worsened and that the potential for downstream flooding shall not be increased. The following information shall be supplied:

Volume of stormwater runoff now existing from site and volume to be generated by new improvements.

Data on landscaping, vegetation map, tree and ground cover existing on site compared with that proposed.

Changes of runoff to be caused by change of such landscape and all roofs and paved surfaces.

Plans for disposition of stormwater.

[5]

Stream encroachments: permit as required by the Division of Water Resources.

[6]

Description of potential flood damages, including a summary of flood states from state and federal sources.

[7]

Submission of a sediment and erosion control plan drawn in accordance with the guidelines and standards adopted by the borough.

(e)

Refuse disposal. There shall be a plan for refuse disposal in compliance with the state and borough requirements and codes.

(f)

Air impact. It shall be shown that there are no deleterious effects to air quality caused by smoke, gases, discernible odors, deleterious chemical changes, particle matter or changes produced by heat, incineration or processing of materials. A chart showing before and after ambient air quality shall be submitted.

(g)

Critical impact areas. Plans shall describe any area, condition or feature which is environmentally sensitive or which would be adversely affected or disturbed during construction. "Critical impact areas" include but are not limited to stream corridors, streams, wetlands, estuaries, slopes greater than 20%, highly acid or highly erodible soils, areas of high water table, mature stands of native vegetation, aquifer recharge and discharge areas. The following information shall be supplied:

[Amended 9-14-1992 by Ord. No. 298]

A statement of impact upon critical areas and of adverse impacts which cannot be avoided.

A list of environmental protective measures, procedures and schedules to minimize damage to critical impact areas.

A list of all licenses, permits and other approvals required by municipal, county or state law and the status of each.

A listing of all adverse environmental impacts, especially irreversible damage, that cannot be avoided.

[5]

A listing of steps proposed to minimize environmental damage to the site and region during construction and operation.

(h)

Noise impact. It shall be shown that the use shall not create a deleterious or objectionable noise, either on or off site. A chart shall be submitted indicating the ambient noise level, measured in decibels, on site and at property boundary lines. The noise generators shall be identified by the type and decibel level.

(i)

Construction impact. There shall be supplied a plan of construction, outlining timing and phasing, traffic generated, number of workers and any impact relating to noise, air, water or other relevant temporary changes in the natural environment.

(j)

Alternative measures. As part of the environmental impact statement, consideration shall be given to reasonable alternatives obviating environmental impact problems. List the irretrievable and irreversible effects of the development upon the environment and discuss alternatives for amelioration of these effects.

(k)

Marketability of proposed use. There shall be a description of how the proposed use of the site relates to the general market of similar uses in the borough and the region within which the borough is located.

(l)

Traffic impact. There shall be a description of how the proposed use will affect the area's traffic volume and pattern.

If the Planning/Zoning Board determines that additional information is required to decide the application, outside of the requirements for a complete application, the Board shall have the power to require such additional information not specified in this chapter, or any revisions in accompanying documents, which are reasonably necessary in order to make the ultimate decision on the issue of approval of the application.

[Amended 9-14-1992 by Ord. No. 298]

Factors considered in approving permits.

In considering and reviewing the application and arriving at its decision, the Planning/Zoning Board shall be guided by and take into consideration the public health, safety and general welfare and the general purposes of land use control, and particular consideration shall be given to the following factors:

[Amended 9-14-1992 by Ord. No. 298]

(a)

Soil erosion by water and wind.

(b)

Surface water drainage.

(c)

Soil fertility.

(d)

Lateral support of abutting streets and lands.

(e)

Public health and safety.

(f)

Land values and uses.

(g)

Contours, both existing and proposed.

(h)

Existing contours and topographic character of the land prior to the removal of any soil and the proposed contours which shall result subsequent to the removal of soil in accordance with the soil removal application.

(i)

Whether the proposed removal of soil is necessary and incidental to the development of the property for its intended use or whether the proposed removal constitutes primarily a commercial activity.

(j)

Effect of tree removal.

(k)

The effects of mining, stockpiling or processing of material on or near public or private water supply wells, subsurface aquifers, surface water bodies and wetlands.

In the event that, after considering and reviewing the application, the resultant effect would be a creation of a lake, pond, hole, pit or depression, or stagnant water would collect on the property, or the nature of the operation would be a wet-mining operation, then and in that event the existence of any one of these factors alone may be sufficient basis for the denial for the permit.

(3)

The application shall contain a soil erosion and sediment control plan prepared by a licensed New Jersey professional engineer, in accordance with Specifications for Soil Erosion and Sediment Control of the Sussex County Soil Conservation District. The soil erosion and sediment control plan shall be submitted to the Sussex County Soil Conservation District, and that body shall have approved the same prior to the soil removal permit being issued by the Borough Council.

Issuance of permit. A permit shall be issued after approval of the application by the Borough Council. It shall show the total number of yards of soil authorized to be removed, as calculated by the Borough Engineer, based upon the contour maps submitted, and also the duration or terms of the permit based upon the applicant's estimate of the time necessary to complete the proposed operations, as provided for in § 113-4D.

§ 113-5 Method and regulation of operation.

If a permit is issued for the removal of earth and soil as provided herein, the owner, or person in charge, shall so conduct the operations that there shall be no sharp declivities, pits or depressions, and in such manner that the area shall be properly leveled off, cleared of debris, and graded to conform with the contour lines and grades as required and shown on the approved plan. No soil shall be removed nor shall any operation be conducted so as to violate any of the regulations contained in this chapter.

§ 113-6 Arable soil.

Arable soil within eight inches of the surface shall not be removed from the licensed owners premises, but promptly, on completion of operations, the arable soil so retained shall be respread on the surface as uniformly as possible to a minimum depth of six inches, and seeded with winter rye or other suitable planting and mulched. If the soil within eight inches of the top is not arable soil, arable soil to a minimum depth of six inches shall be spread thereon promptly when the operation is completed in each area. Provisions shall be made for adequate drainage after the topsoil is replaced.

§ 113-7 Conduct of operations.

The following regulations shall be observed:

Access road. The petitioner shall construct a coarse gravel access road into the removal site to ensure that trucks leaving the site will not track material onto the public road. Such access road shall be in accordance with the requirements of the Borough Engineer.

Deposits prohibited on adjoining property or public roads. Soil removed shall not be deposited, or in any way thrown or placed, upon adjoining property or public roads. Any soil or material resulting from any operation, accumulating on any adjoining property or public road, shall be removed therefrom immediately, upon notice by a borough official to the permittee.

Operations near streams or wetlands. All operations shall be conducted in strict accordance with any state law, other ordinances of the borough, and the terms and conditions of any permit granted for the operations. No operation shall be permitted within 100 feet of any stream or wetland, unless it can be shown that soil removal would not alter the quantity or quality of the water, nor adversely affect the rate of water flow, and that the final finishing grade requires soil removal within the one-hundred-foot distance.

Nuisances or hazards. The operation shall be conducted so as not to constitute a nuisance to adjoining owners or the borough, and in no event shall the operation create any extra hazardous or unsafe condition, with regard to any person or persons.

Clearance of area. Upon completion of an operation or of excavation from an area delineated on the approved plan, the area shall be properly cleared of debris, graded to conform to the contours and grades and trees shall be planted, in accordance with the approved plan. A final map shall be submitted containing and complying with all requirements as set forth in this section.

Requirement of approved plan. Soil shall not be removed, except in accordance with the approved plan, which plan may, upon application, be amended from time to time by the reviewing municipal body.

Water table and grade level restrictions. No soil shall be removed which is within eight feet of the water table, unless appoved by the reviewing municipal body, and no soil shall be removed which is below the grade established and shown on the approved map.

Garbage; pollution; safety hazards. No trash, garbage, junk or debris shall be stored in any licensed area, and no safety hazards shall be permitted, either during or after the completion of operations. All burning of combustible debris, resulting from the soil operation, shall be subject to the regulation set by the Fire Department or any regulation of a higher authority in effect, and be undertaken so as not to create a smoke nuisance or air pollution safety hazard.

Inspection. The applicant shall permit the inspection of the operation, at any reasonable time, by officers of the borough designated to perform such inspections.

Progress report. Each permittee shall annually furnish a progress report to the Borough Engineer, the first of which shall be submitted nine months after issuance of the permit, which shall consist of a sketch map at a scale of one inch to 100 feet showing contours every two feet, retained arable soil, equipment, the areas where soil was removed, the location of water supply, and disposal facilities, and drainage facilities prepared and certified by a licensed professional engineer. All topography shall be made by aerial photographic methods and a photograph submitted with the original application and with each progress report.

Soil removal limited to five-acre sections. In order to minimize the possibility of mud slides or drainage of silt, and for safety purposes, the area of operations for excavation shall be limited to one five-acre section as shown on applicant's soil removal map, at any one time. The applicant shall fence and keep locked the five-acre section currently the subject of soil removal operations. The applicant shall not commence soil removal upon a succeeding five-acre section without the replacement of topsoil and reseeding and replanting of the previous five-acre section. The applicant shall notify the Borough Construction Official before commencing soil removal operations on each new five-acre section. Each succeeding five-acre section shall be fenced and locked before soil removal operations are commenced thereon.

Respreading and reseeding of arable soil. Upon the completion of work in any specific area, all respreading of arable soil and reseeding as required by this section and § 113-6 of this chapter shall be completed within 60 days thereafter; except that, if the completion of work in an area occurs during the winter months when it would not be practical to respread the topsoil and reseed it, the work shall be completed within the additional time as may be specified by the Borough Engineer.

Exception from regulations. In any action taken by the reviewing municipal body with regard to this chapter, the body shall give primary consideration to the rules, regulations and standards herein set forth, in order to promote the general welfare of the entire community. If, however, the applicant can clearly demonstrate, because of peculiar conditions pertaining to his land, that literal enforcement of one or more of these regulations is impractical or will exact undue hardship, the reviewing municipal body may grant exceptions from the requirements of such sections as may be reasonable within the general intent of this chapter. It shall state its reasons for granting any such exceptions in resolution form.

§ 113-8 Hours of operation.

The hours of operation for the actual excavation and use of the dredge and other heavy equipment shall be 7:00 a.m. to 6:00 p.m., Monday through Friday. There shall be no Saturday or Sunday operations of this equipment; however, trucks may be loaded with finished material from existing stockpiles on Saturdays, 7:00 a.m. to 1:00 p.m., but such trucks shall not exceed the capacity of 12 yards. There shall be no operation of any kind or character on Sundays or legal holidays.

§ 113-9 Work face of excavation.

While working an area, the working face of the excavation shall not exceed 85° from the horizontal, nor shall an 85° angle have a vertical height exceeding 30 feet. Any face not currently being worked on shall not exceed 30° from the horizontal. A suitable fence shall be erected on three sides of the working face of the excavation in order to prevent persons from approaching such working face from the existing grade level. Where an excavated area adjoins a road, no excavation shall be made below the level of the road for a distance of 100 feet back from the center line of the road except in instances where, on the low side of the road, the removal of material would not substantially alter the general terrain characteristics. Where an excavated area is within 50 feet from any building, the finished grade thereof shall not exceed 10% or be less than 2%. Care should be taken so that there shall be no diversion of surface water either during the operation or after the project is complete.

§ 113-10 Fees; bonds; revocation of permit; traffic survey; off-tract improvements.

Application and inspection fees. Upon application for a permit pursuant to the provisions of this chapter, the applicant shall pay a filing fee as provided in Chapter 66, Fees. In addition, at time of filing the application, to cover review by the Borough Engineer, planning consultant and other borough personnel and site inspections, a deposit for review fees as provided in Chapter 66, Fees, shall be deposited with the Borough Clerk, by the applicant. Any unused portion shall be returned to the applicant. The Board shall have the right to require additional deposits to be paid by the applicant, from time to time, in order to ensure that review and inspection fees are adequately provided for. Upon issuance of a permit the applicant shall pay another deposit as provided in Chapter 66. Fees, to cover reasonable inspection fees to municipal personnel, including but not limited to the Borough Engineer, for any inspections and field checks of the operation, and for inspections of improvements. Thereafter, the permittee shall reimburse the borough promptly for the cost of all periodic inspection fees, as well as any extraordinary costs or expenses, including attorneys fees, necessitated as a result of unforseen difficulties or exigencies, or necessitated by or resulting from any violation of any provision of this chapter. Should the applicant fail to reimburse the borough for the aforesaid fees, within 14 days of a request by the borough to do so, the permit may be suspended or revoked for such a period of time as the Borough Council may determine.[1]

Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

Bond required.

Before any work is done for which a permit is required, and during the period covered by the permit, the applicant shall file and maintain a bond in form and with surety approved by the Borough Attorney in an amount deemed sufficient by the Borough Council on a recommendation of the Borough Engineer, that shall be sufficient to ensure the faithful performance of the work to be undertaken pursuant to the conditions of the permit and the terms thereof. The bond shall be in an amount not less than $3,000 per acre of land which is actually being worked in accordance with the approved plan. The bond shall cover the respreading of topsoil as required by the provisions of § 113-6 and also final provisions for drainage of the site and grading to final contour.