[HISTORY: Adopted by the Town Board of the Town of Niagara 10-10-1995
by L.L. No. 5-1995. Amendments noted where applicable.]
The purpose of this chapter is to protect the health, safety and general
welfare of the residents of the Town of Niagara from all adverse impacts caused
by excavations and other soil disturbances. The Town Board also recognizes
earth with its minerals as a recoverable resource, having commercial value
and affirms the right to properly excavate upon assurance of adequate restoration.
These regulations shall be interpreted to foster:
A.
The orderly operation of all excavations and soil disturbances,
including development of domestic mineral resources, according to sound environmental
practices.
B.
The restoration of affected lands.
C.
The retention of the taxable value of property.
D.
The retention of natural beauty and aesthetic values
in the affected areas.
E.
The preservation of the quality of life for local residents.
As used in this chapter, the following terms shall have the meanings
indicated:
That person making application for a permit and who is responsible
for fulfilling the requirements for the restoration plan and all rules and
regulations promulgated hereunder.
All on-site operations involved in the treatment, processing or further
fabrication of soil, sand, gravel or natural deposits, including washing,
sedimentation ponds, grading, concrete batching plants, asphalt mixing plants
and aggregate dryers.
An excavated area designed to hold surface water.
Trees, hills, fences, berms or other natural or artificial features
which are located so as to conceal or separate the excavation site and related
activities from other land uses and to reduce the negative effects on these
land uses of noise, glare, dust, visual ugliness and other factors associated
with the excavation site and related activities.
An application containing all required information, including supplemental
information requested by the municipal board.
The officially established Code Enforcement Officer of the Town of
Niagara.
A cavity, hold, mine, pit or quarry in land formed by digging for
the purpose of extracting stone, gravel, sand, shale or other natural minerals
or the topsoil therefrom.
Any pit or underground workings from which any mineral is produced.
Aggregate, clay, gravel, sand, shale, stone or any other solid material
of commercial value found in or on the earth.
The appropriate municipal board of the Town of Niagara. The Town
Board shall be the designated municipal board.
Any owner, lessee or other person who operates, controls or supervises
the operation.
That person having title to the tract of land.
Any individual, public or private corporation, political subdivision,
government agency, partnership, association, trust, estate or any other legal
entity.
The reparation to an environmentally acceptable natural state of
an area which has undergone physical change due to excavation and related
activities.
Surface earth, including the organic layer in which most plants have
their roots.
A.
No person shall excavate, remove topsoil or alter topography
for any purpose, other than the exceptions described below under § 174-5
without an excavation permit issued by the municipal board.
B.
No such permit shall be issued except upon submission
of evidence satisfactory to the issuing authority and upon its finding and
determination based upon such evidence that the proposed operation will not
cause erosion or otherwise disturb or adversely affect natural drainage, creeks
or other bodies, sources or supplies of water, both surface and ground, adjacent
or nearby flora, fauna or other vegetation. In determining the sufficiency
of evidence, proof of compliance with standards promulgated by the United
States Department of Agriculture Soils Conservation Services and by the New
York State Department of Environmental Conservation may, at the sole discretion
of the Town, be deemed sufficient evidence for such permit.
C.
All excavation topsoil removal and topography alteration
operations (requiring permits) shall be conducted according to standards set
forth below, including restoration of the affected area.
D.
Applicant shall comply with all bonding, fee schedules,
etc., as required by this chapter.
E.
The municipal board shall be responsible for compliance
with the State Environmental Quality Review Act (SEQRA), and no permit shall
be issued under this chapter prior to said board complying with SEQRA. Said
board may, in its sole discretion, adopt the findings of the state or other
agency as to the environmental impact of the proposed project.
A.
The following operations and uses are hereby excepted
from the application of this chapter:
(1)
Excavation incidental to construction of a driveway,
walk, a permitted wall or building or part thereof, or accessory thereto.
(2)
Removal of topsoil, gravel or fill from one part of a
premises to another part of the same premises incidental to the construction
of a building or other improvement of land or incidental to farming or landscaping.
(3)
Removal of excess stone, gravel, sand or topsoil from
the area of an approved subdivision, provided that such removal is in accordance
with plans approved by the Town Board.
(4)
Construction of privately owned water and sewerage systems.
(5)
An approved sanitary landfill operation.
(6)
Typical excavations for public safety purposes.
B.
The above exceptions from this chapter do not in any
manner waive or limit the requirements of any other Town of Niagara local
law, ordinance or regulation, or state or federal law, and none of the above
activities shall occur in the Town of Niagara without first obtaining proper
permits and authorization from Town, state and/or federal officials.
A.
The applicant shall furnish evidence of a valid permit
from the New York State Department of Environmental Conservation pursuant
to Title 27, Article 23 of the Environmental Conservation Law, or other applicable
federal or state permits, when applicable.
B.
Compliance with the above-mentioned Environmental Conservation
Law or other federal or state laws shall not exempt the applicant from the
provisions of this chapter.
A.
Application.
(1)
Upon securing a certificate of zoning compliance, the
applicant shall file with the enforcement officer an application for an excavation
permit.
(2)
In addition to compliance with site plan review procedures
under the Town Code, the following additional information shall be supplied,
as appropriate:
(a)
A duly acknowledged consent in writing by the owner or
lessee of the premises and mortgagee, if any, including all addresses.
(b)
A statement as to the period of time required to complete
the total operation, including restoration.
(d)
An operations map at an appropriate scale, showing the
following features, including the area devoted to each:
[1]
Existing and proposed excavation area.
[2]
Existing and proposed appurtenant activity, identified
by type.
[3]
Existing and proposed access road, identified by width
and type of material.
[4]
Existing and proposed parking facility, identified by
type of surface material.
[5]
Existing and proposed fencing and buffer, identified
by height and type of material.
[6]
Area where topsoil will be temporarily stored for use
in restoration.
[7]
Existing and proposed structure to be used in said operations.
(e)
A restoration plan, including the following:
[1]
Boundaries of the area proposed for restoration.
[2]
Final topography of the area proposed for restoration
at maximum contour intervals of five feet.
[3]
Final surface drainage pattern and location and characteristics
of artificial drainage facilities in the area proposed for restoration and
in contiguous areas.
[4]
Depth and composition of topsoil proposed to be used
in restoration.
[5]
The type and density of trees and shrubs, grasses and
other vegetation proposed to be used in restoration.
(f)
Such other information that the municipal board deems
relevant and necessary for consideration of the application.
B.
Public hearing. No permit shall be issued prior to a
public hearing held by the municipal board, which hearing shall be held within
60 days of receipt of a completed application. Notwithstanding the immediate
foregoing requirement, a renewal of a permit may be issued without a public
hearing when the area covered by the renewal or transfer does not extend beyond
the area of operations originally authorized; however, the Municipal Board
may, in its discretion, direct a public hearing if it determines said hearing
is necessary.
C.
Issuance of permits.
(1)
Permits may be issued by the municipal board pursuant
to all the provisions of this chapter and subject to any additional conditions
and/or restrictions imposed by the municipal board.
(2)
Approval or denial of the application by the municipal
board shall be rendered within 60 days after receipt of a completed application,
or, if a public hearing is held, within 60 days after the conclusion of the
public hearing on said application, unless both the municipal board and the
applicant mutually consent to a time extension. The applicant will be notified
of the decision, in writing, mailed to the address shown on the application.
(3)
Excavation permits shall be issued for a period of one
year and shall be subject to site inspection and review by the enforcement
officer and any other agent designated by the municipal board.
(4)
The enforcement officer shall perform the function of
executing any permit on behalf of the municipal board, but shall do so only
upon resolution or order of the municipal board setting forth any conditions
and/or restrictions with respect thereto. Permits are not transferable.
D.
Permit renewal. Renewal of an excavation permit upon
its termination shall follow the same procedures as those required in this
chapter for the original permit, except that if an application for renewal
was properly filed prior to the expiration of an existing permit, the terms
of the existing permit shall be deemed to be extended to the time that the
municipal board files its decision in regard to the application for renewal.
In approving or denying an excavation permit, the standards and considerations
taken into account shall include but not be limited to the following:
A.
Whether the excavations and proposed restoration plan are in accord with the intent of the municipal Comprehensive Plan and Chapter 245, Zoning.
B.
Whether they will result in the creation of pits or holes
which may be hazardous or dangerous.
C.
Whether they will cause soil erosion or the depletion
of vegetation.
D.
Whether they will render the land unproductive or unsuitable
for agricultural or developmental purposes.
E.
Whether they will impair the aesthetic or natural environment
of the excavation area or surrounding area.
F.
Whether they will affect the character of surrounding
land use.
G.
Whether they will create excessive traffic or impair
the quality of the existing and proposed thoroughfare facilities, community
facilities and drainage.
H.
Whether they will affect the control of nuisances.
I.
Whether the areas excavated can be effectively restored
and revegetated.
J.
Whether the applicant possesses the technical, professional
and financial ability to safely conduct the excavation operations and restoration
procedures.
Upon filing an application for a permit, including renewal applications
or transfer requests, the applicant shall pay a fee as established by resolution
of the Town Board. Such fee shall be deemed a reasonable sum to cover costs
of administration, no part of which shall be returnable to the applicant.
A.
Upon approval of the application and before the issuance
of any permit, the municipal board shall require (with the exception of pond
excavations) that a performance bond be jointly and severally executed and
filed with the Town Clerk by the applicant and all owners of record of the
premises. Said bond shall be secured by a letter of credit or surety bond
to the Town of Niagara in the amount of at least $5,000 per acre. The above
party or parties guarantee with said bond that upon termination of either
the permit or the operation, whichever may come first, the land shall be restored
in conformity with both the permit requirements and standards set forth by
this chapter. In the event of default of compliance, such letter of credit
or surety bond shall be forfeited to the Town. The municipal board shall return
to the applicant any amount that is not needed to cover the expenses of restoration,
administration and any other expenses reasonably incurred by the Town as a
result of the applicant's default.
B.
Said bond shall continue in full force and effect until
an approval of compliance shall have been issued by the municipal board, based
upon a favorable recommendation of the municipal engineer. Prior to the issuance
of said approval, the municipal board may require a statement showing the
manner of compliance with the plan of restoration.
C.
In the event of a transfer of property, the property
owner shall file a certificate from the surety company issuing the bond then
in effect, continuing the same as to the new permit holder or certifying that
a new bond has been issued or the permit shall automatically terminate.
A.
Quarrying and mining operations.
(3)
Conservation measures.
(a)
All topsoil stripped from the active excavation area
shall be stockpiled for use in accordance with the restoration plan, but not
closer than 10 feet to any property line. Such stockpiles shall be seeded,
covered or otherwise treated to minimize the effects of erosion by wind or
water.
(b)
Excavations shall be buffered by appropriate landscaping
sufficient to shield the operation from public view. These buffer areas shall
be seeded and maintained by the operator.
(c)
An adequate drainage system shall be provided to convey stormwater runoff originating on or crossing the premises such that the runoff follows, as much as feasible, the natural pattern of runoff prior to excavation and such that it does not adversely affect neighboring property owners. Soil erosion, sedimentation and groundwater seepage shall be controlled so as to prevent any negative effects on bodies of water, public roads and neighboring properties. Drainage facilities shall comply with any stormwater pollution prevention plan approved by the Town in accordance with § 245-61 of the Town Code.
[Amended 12-11-2007 by L.L. No. 3-2007]
(4)
Other safeguards.
(a)
All operations shall be conducted between the hours of
7:00 a.m. and 6:00 p.m. with no Sunday or holiday operations.
(b)
All equipment used for excavations and processing shall
be constructed, maintained and operated in such a manner as to eliminate,
as far as is practical, noises and vibrations and dust conditions which are
injurious or a nuisance to persons living in the vicinity.
(c)
Trucks shall be loaded to prevent spillage or windblown
matter during transport on public roads.
B.
Topsoil removal, turf farming.
(1)
Setback. Topsoil removal, including turf farming operations,
shall stay a minimum distance of 10 feet from any public right-of-way or adjoining
property line.
(2)
Access roads. Access roads shall be sufficiently free
of dust and mud to prevent such material from being spread or blown from the
premises.
C.
Pond, lake and basin excavations.
(1)
Setback. Pond, lake and basin excavations shall not be
closer than 150 feet to any public right-of-way or adjoining property line.
(2)
Access roads. Access roads shall be sufficiently free
of dust and mud to prevent such material from being spread or blown from the
premises.
A.
No slope shall be left with a grade steeper than one
foot of vertical rise to three feet of horizontal distance, and the normal
angle of repose shall not be exceeded in any case.
B.
All stumps, boulders and other debris resulting from
the excavations, appurtenant activities or related operations shall be disposed
of by approved methods. If disposed of on the site, such debris shall be covered
with a minimum of two feet of soil.
C.
Topsoil shall be spread over the excavated area to a
minimum depth of five inches.
D.
The restoration area shall be planted with trees, shrubs,
grass or other vegetation so as to provide for screening, natural beauty and
soil stability. The planting shall follow acceptable conservation practices.
E.
Restoration shall be undertaken in such a way that natural
and storm drainage, where it enters and leaves the premises, shall be altered
only to the minimal degree necessary to carry out excavations and appurtenant
activities. Any alternations of natural and storm drainage shall not adversely
affect public roads or neighboring property owners.
F.
Restoration shall be a continuous operation, subject
to review and approval at each inspection and at the termination of the permit
period. Topsoil grading and planting of the area designated for restoration
during the permit period shall have been completed before a permit renewal
is granted. Under no circumstances shall an exposed excavation exceed six
acres.
G.
Within six months after termination of the excavation
operation, all equipment, buildings, structures and other unsightly evidence
of the operation shall have been removed from the premises or disposed of
by approved methods, and all restoration shall have been completed.
Any person aggrieved by any decision of the enforcement officer relative to the provisions of this chapter may appeal such decision to the Zoning Board of Appeals, as provided in Chapter 245, Zoning.
[Amended 5-19-1998 by L.L. No. 3-1998]
Any person who violates any provision of this chapter or any regulation
adopted hereunder is guilty of an offense punishable by a fine not exceeding
$1,000 or imprisonment for a term not to exceed one year, or both such fine
and imprisonment. Each week's continued violation shall constitute a
separate violation.
The Code Enforcement Officer shall be empowered to enforce this chapter
and the regulations set forth herein.
