[HISTORY: Adopted by the Planning Board of
the Town of Wolfeboro 5-12-1987. Amendments noted where applicable.]
In accordance with the provisions of New Hampshire
Revised Statutes Annotated, Chapter 155-E:11, the Wolfeboro Planning
Board adopts the following chapter in implementation thereof to govern
the excavation of earth and the restoration of excavation sites in
the Town of Wolfeboro, New Hampshire.
As used in this chapter, the following terms
shall have the meanings indicated:
Any person whose property is located in New Hampshire and
adjoins or is directly across the street or stream from the land under
consideration. For purposes of receiving testimony only, and not for
purposes of notification, the term "abutter" shall include any person
who is able to demonstrate that his land will be directly affected
by the proposal under consideration. For purposes of receipt of notification
of a hearing hereunder before the regulator where an abutting property
is under a condominium or other collective form of ownership, the
term "abutter" means the officers of the collective or association
as defined in RSA 356-B:3, XXIII.
The record owner of the excavation site at the time of application
or said owner's designee in writing.
A complete submission of information and plans as required by RSA 155-E:3 and by § 171-4, Application procedure, below, necessary for the issuance of a permit for excavation of earth.
A water-bearing stratum of permeable rock, sand or gravel.
Aquifers appear on statewide mapping prepared by the United States
Geological Survey entitled "Availability of Ground Water."
Sand, gravel, rock, soil or construction aggregate.
A land area which is used, or has been used, for the commercial
taking of earth, including all slopes.
An agreement between the excavation site owner and the contractor
describing the terms and procedures for material excavation.
The Wolfeboro Planning Board.
Plants which are permanently placed and which are integral
to the grading, crushing and stockpiling of excavated earth.
No excavation of earth shall take place in the
Town of Wolfeboro without the record owner of the excavation site
or his designee in writing first obtaining a permit therefor from
the regulator, except:
A.
Excavation that is incidental to the lawful construction
or alteration of a building or structure or the lawful construction
or alteration of a parking lot or way including a driveway on a portion
of the premises where removal occurs. (RSA 115-E:2, I).
B.
Excavation that is incidental to agricultural or silvicultural
activities, normal landscaping or minor topographical adjustment.
(RSA 155-E:2, II).
C.
Excavation from an area contiguous to, or from contiguous
land in common ownership with, stationary manufacturing and processing
plants in operation as of August 24, 1979, which use earth obtained
from such areas. (RSA 155-E:2, III). For the purpose of this exception,
an area or land separated from such plant by a street or other public
right-of-way shall not constitute a contiguous area or contiguous
land.
D.
Excavation from a granite quarry. (RSA 155-E:2, IV).
E.
Excavation performed exclusively for the lawful construction,
reconstruction or maintenance of a Class I, II, III, IV or V highway
by a unit of government having jurisdiction of the highway or an agent
of the unit of government which has a contract for the construction,
reconstruction or maintenance of the highway, provided that a copy
of the pit agreement executed by the owner, the agent and the governmental
unit shall be filed with and accepted by the regulator prior to start
of excavation, but such excavation shall not be exempt from the provisions
of RSA 155-E:4 and 155-E:10. (RSA 155-E:2, V).[1]
[1]
Editor's Note: See RSA 155-E:2-a, I.
F.
A person owning land abutting a site which was taken
by eminent domain or by any other governmental taking upon which construction
is taking place may stockpile earth taken from the construction site
and may remove the earth at a later date after written notification
to the appropriate local official. (RSA 155-E:2, VI)[2]
[2]
Editor's Note: See RSA 155-E:2-a, II.
A.
General procedure. Whenever any earth excavation for
commercial purposes is proposed, before any land clearing is begun
or the removal of any sand, gravel, soil or construction aggregate
and before any permit for earth excavation is granted, the owner of
the proposed excavation site or his designee in writing shall submit
an application for a permit for excavation of earth to the regulator.
The applicant shall use an application form supplied by the regulator
which shall be signed and dated by the applicant. A copy of the application
must also be contemporaneously sent to the Wolfeboro Conservation
Commission.
B.
The completed application shall include:
(1)
The application form supplied by the regulator, containing
the name(s) and address(es) of the record owner of the excavation
site, the person or entity that will actually do the excavating and
all abutters of the premises on which excavation is proposed and at
least the following information:
(a)
A sketch and description of the location and
boundaries of the proposed excavation, the number of acres to be involved
in the project and the section(s) of Wolfeboro in which the project
lies.
(b)
A sketch and description of the access and visual
barriers to public highway to be utilized in the proposed excavation.
(c)
The breadth, depth and slope of the proposed
excavation and the estimated duration of the project.
(d)
The elevation of the highest annual average
groundwater table within or next to the proposed excavation.
(e)
A plan for the restoration of the area affected
by the excavation at least in compliance with RSA 155-E:5, including
a timetable therefor as to fully depleted sites within the excavation
area during said project.
(3)
Copies of related permit approvals or other documents
necessary for the excavation proposal. These may include the following:
(b)
Dredge and fill permit as required by RSA 483-A.
(c)
Corps of Engineers Form 4345 on flow rates.
(d)
Any applicable Air Resource Agency permits or
evidence of satisfaction of Agency requirements.
(e)
Timber cutting permit.
(f)
Any other permit or approval required for such
excavation or restoration by any federal, state or local body.
(4)
Such other information as the regulator may reasonably
require as set forth in the application form supplied by the regulator
or after the submission of the application and in response thereto.
C.
Action on application.
(1)
The completed application shall be formally accepted at a regularly scheduled meeting of the regulator. Within 30 days thereafter and prior to the regulator approving an application for an excavation permit or an amended excavation permit, a public hearing shall be held thereon and all abutters notified in accordance with RSA 155-E:7. [See § 171-6A(1) below.]
(2)
Within 20 days after the said hearing, or any continuation
thereof, the regulator shall render a decision approving or disapproving
the application. Excavation permit approval by the regulator shall
be in the form of a memorandum setting forth such reasonable conditions
consistent with the purpose of RSA 155-E as the regulator shall have
imposed, accompanied by a weatherable permit sign depicting the location
of the excavation site, the signature(s) of the regulator and the
permit expiration date. The permit sign shall be prominently posted
in a secured manner at the excavation site near the entrance thereto.
The permit shall not be assignable or transferable without the prior
written consent of the regulator which may hold a public hearing thereon.
If the application is disapproved, the owner and the applicant shall
be notified, in writing, by the regulator, giving reasons for the
disapproval.
A.
Excavation plan.
(1)
The applicant shall submit a plan describing the specific
location and extent of the proposed excavation project. The excavation
plan shall include existing topographic and site boundary information
compiled and prepared by a licensed land surveyor. Other information
which must be contained in the plan is:
(a)
Proposed topography at the completion of excavation
(prior to restoration).
(b)
Distances between disturbed areas and closest
property lines.
(c)
Zoning district(s).
(d)
Existing visual barriers to be retained or visual
barriers to be constructed.
(e)
Aquifer limits/location as identified by the
United States Geological Survey.
(f)
Lakes, streams, wetlands, other bodies of surface
water and significant natural and man-made features.
(g)
A description of project duration and phasing.
(h)
The names and addresses of all abutters.
(i)
Notations for each type of material as to excavation
site acreage and volumes of material to be removed.
(j)
The location and design of site access roads leading to and from public highways and the public highways that will be used in connection with the operation of the site. (Also see § 171-7B below.)
(k)
The elevation of the seasonal high groundwater
table within or next to the proposed excavation.
(l)
Topsoil storage sites during the excavation
phase.
(m)
Any easements encumbering the excavation site.
(n)
Photographs of the site as it exists at the
time of the application to provide a baseline record.
(o)
A list of all equipment proposed to be used
in connection with the operation, including the loaded weight of trucks
and the specification of any crushers to be used or machine shop to
be operated at the site.
(p)
Any water supply to be developed at or brought
to the excavation site and its disposal.
(q)
The locations of any stockpiles of gravel to
be established at the site.
(2)
The plan shall be drawn at a scale of 1 inch equals
50 feet and have a contour interval of such scale as shall provide
the regulator with a thorough understanding of project scope. Sectional
drawings may be required by the regulator. (See sample of site excavation
plan shown in Appendix A.)
B.
Restoration plan.
(1)
The applicant and all existing excavation site owners
who are subject to RSA 155-E and this chapter shall submit excavation
site restoration plans.
(2)
As required by Chapter 481:3, New Hampshire Laws of
1979, the owners of existing excavation operations must perform restoration
in compliance with RSA 155-E:5. Owners of existing excavation operations
shall submit a restoration plan and appropriate bonding to the regulator
within six months of their registration under § 171-10A,
below, of this chapter, or within one year of the effective date of
this chapter whichever is earlier. The excavation permit application
form shall be used for this submission.
(3)
The restoration plan shall meet, at a minimum, the requirements set forth in RSA 155-E:5. The character of the restored landscape shall blend with the surrounding natural features. The restored site shall be rendered in a condition that will not preclude its future use in a manner consistent with the Chapter 175, Zoning, and the Zoning Map, if applicable.
(4)
The restoration plan, which shall also be submitted
to the Carroll County Conservation District for its review and comment,
shall be prepared by a licensed land surveyor and drawn at the same
scale and shall use the same base survey information as that utilized
in the preparation of the excavation plan. The restoration plan shall
contain the following information:
(a)
Restored topography and sub and surface drainage
at the completion of the restoration phase.
(b)
The phasing of site restoration showing designated
area and completion dates.
(c)
Soil conditioning specifications. (See Appendix
B.)
(d)
Seedling and mulching specifications. (See Appendix
B.) All seeding shall be done between loss of snow cover and June
13 or between August 30 and September 30.
(e)
The plant materials to be used in restoration,
their quantities and sizes.
(f)
Sections showing existing, excavated and restored
topography configuration.
A.
Fees.
(1)
Hearing fees. Applicant shall submit with his application
the funds necessary to comply with the notice requirements of RSA
155-E:7, namely that a notice of said hearing shall be sent to all
abutters and shall specify the grounds for the hearing as well as
the date, time and place, and at least 14 days' notice of the time
and place of such hearing shall be published in a paper of general
circulation in Wolfeboro, and a legal notice thereof shall also be
posted in at least three public places in Wolfeboro. The 14 days shall
not include the day of publication nor the day of the meeting, but
shall include any Saturdays, Sundays and legal holidays within said
period.
(2)
Excavation fee. An excavation fee of $50 shall be
paid to the regulator by the applicant prior to issuance of an excavation
permit pursuant to RSA 155-E:8.
(3)
Annual inspection fee. An annual inspection fee which
shall not exceed $500 shall be charged by the regulator to defray
the actual costs of such inspection.
B.
Bond.
(1)
A performance bond shall be required prior to the
issuance of an excavation permit. The bond must be sufficient to guarantee:
(2)
The amount of the bond shall be set by the regulator
at the time of permit issuance and will be based on current per acre
costs of restoration projected to the time of restoration, plus the
cost of road maintenance for the duration of the permit. All bonds
are to be made payable to and posted with the Town Treasurer and shall
be in the amount of not less than 100% of the estimated costs and
may be in an amount of up to 125% of such costs to allow for estimation
errors in cases of projects permitted for periods in excess of three
years.
(3)
The bond shall not be released until after the regulator
has made a site inspection and certified the completion of the required
restoration in accordance with the restoration plan. This site inspection
shall occur not less than 12 months after the initial seeding has
been completed.
The following site performance standards shall
be incorporated by reference into the site excavation plan and conditions
for permit approval and must be complied with in performing any excavation
subject to RSA 155-E or this chapter.
A.
Depth of excavation. The excavation shall not go deeper
than five feet above the seasonal high groundwater table.
B.
Excavation site access roads. Access roads leading to and from the excavation site shall intersect existing streets and roads at locations that have been duly approved by state or local officials and in a manner that will not endanger the safety of highway users and local residents. The provisions of RSA 236:13 and 236:14 and the provisions for access under Chapter 174, Subdivision of Land, shall be adhered to by the applicant. Access over Class VI roads, bridges or other public ways to be utilized in the proposed excavation shall be clearly shown on the excavation/restoration plan. The maintenance and final condition of said roads, bridges and ways shall be defined in writing and made a part of said plan.
C.
Topsoil. Prior to the excavation of earth at a new
excavation site, all topsoil material shall be stripped and stored
for use in restoring the site upon the completion of excavation at
that site. The removal of topsoil should be undertaken in a phased
manner to minimize erosion potential.
D.
Timber removal. The applicable New Hampshire statutes
and regulations pertaining to forest practice and timber harvesting
shall apply to the removal of vegetative cover at excavation sites.
E.
Visual barriers. A vegetative or topographical buffer
of a minimum of 50 feet shall be maintained between surrounding streets,
highways, commercial and residential land uses and the excavation
site. The regulator shall direct the applicant as to specific requirements
for the proposed excavation site and may in its discretion waive or
alter the fifty-foot requirement in unusual situations. Existing visual
barriers shall be retained to the extent possible and should be augmented
where necessary in the conduct of the excavation project.
F.
Slopes. The regulator may in its discretion specify
excavation slopes that will provide a slope to minimize erosion from
restoration work or heavy rain or snow load. A slope no steeper than
three to one (i.e., 33%) will generally be considered acceptable,
except for a long slope where a bench may be required. For shorter
slopes, when the soil is suitable a two to one (i.e., 50%) slope may
be deemed acceptable.
G.
Standing water. No excavation may cause or create,
directly or indirectly, any standing body of water. The regulator
may grant, in writing, a special exception to allow same, provided
that the public health, safety and welfare will not be adversely affected.
Such body of water shall be indicated on the plan and the exception
noted.
H.
Rate of restoration. All excavation must be restored
so as to comply with RSA 155-E:5 and this chapter by the end of the
calendar year following the termination of excavation. The regulator
may waive this requirement in cases of unusual hardship.
I.
Debris. Debris resulting from the excavation shall
be buried or removed consistently with applicable state regulations.
J.
Waste material. Excavation sites shall be kept free
of all discarded waste material, i.e., machine parts, cables, cans,
etc.
K.
Setback. If the proposed site is close to surface
water, such as a stream, river or pond, particular attention shall
be paid to the setback of the excavation from the water. The regulator
will need to be assured that, even in the case of a flood, the setback
will be sufficient to prevent any water, which may have entered the
excavation, from reentering the surface water source.
L.
Off-site highways. Off-site highways used in connection
with the excavation site and its operation shall be used in compliance
with applicable judicial, state and town laws, ordinances and regulations.
The regulator shall not grant a permit:
A.
Where an excavation is proposed below road level within
50 feet of any highway right-of-way, unless such excavation is for
the purpose of said highway (RSA 155-E:4, I).
B.
For excavation within 50 feet of the boundary of a
disapproving abutter or within 10 feet of the boundary of an approving
abutter, unless approval is requested by said abutter (RSA 155-E:4,
II).
C.
When the excavation is not permitted by Chapter 175, Zoning, or other applicable ordinance (RSA 155-E:4, III).
D.
When the issuance of the permit would be unduly hazardous
or injurious to the public welfare (RSA 155-E:4, IV).
E.
Where existing visual barriers in the areas specified
in RSA 155-E:3, III would be removed, except to provide access to
the excavation (RSA 155-E:4, V).
F.
Where the excavation would substantially damage quality
of the groundwater and/or reduction in the long-term volume of water
of a known aquifer, so designated by the United States Geological
Survey (RSA 155-E:4, VI), and, accordingly, the applicant shall at
his expense submit to the regulator evidence prepared by a qualified
professional that the excavation will not detrimentally affect the
quality of the groundwater contained in the aquifer by directly contributing
to pollution or by increasing the long-term susceptibility of the
aquifer to potential pollutants and the excavation will not cause
a significant reduction in the long-term volume of water contained
in the aquifer or in the storage capacity of the aquifer, in cases
where the regulator determines that there is the potential for damage
to an aquifer by the proposed excavation.
G.
When excavation is planned beneath or adjacent to
inland surface waters in such manner that a permit is required from
the Water Supply and Pollution Control Commission, the Water Resources
Board, the Wetlands Board or other state or federal agencies with
jurisdiction over the premises, but the regulator may approve the
application when all necessary permits have been obtained (RSA 155-E:4,
VII).
H.
Where the project cannot comply with the restoration
provisions of RSA 155-E:5 (RSA 155-E:4, VIII).
A.
Permit renewal. The applicant may renew the excavation permit and continue excavation operations by making application to the regulator in the manner set forth in § 171-4 of this chapter. The excavation permit application need only supply that information which has changed from the previous application submission. Fees and bonding will be established by the regulator for the renewal period.
B.
Permit amendment. If adherence to the permit conditions (including the excavation/restoration plans) cannot be maintained, the owner shall apply to the regulator for a permit amendment. An application shall be completed and submitted to the regulator in the manner provided in § 171-4 of this chapter, but need only supply that information which has changed from that previously supplied the regulator.
All existing excavations in use as of August
24, 1979, must be registered with the regulator if the owner thereof
intends to continue such existing excavation without a permit pursuant
to N.H. Laws 1979, 481:3. Such registration shall be on a form provided
for such purpose by the regulator. The applicant must submit satisfactory
evidence of the existing excavation being in use as of August 24,
1979. Said form shall require the name and address of the owner(s)
of the property, the name and address of the party designated by the
owner(s) to excavate, if applicable, and the location by Wolfeboro
Tax Map number and by reference to Carroll County registry of deeds
by book and page. Said registration must be completed within six months
after the effective date of this chapter. Sites not so registered
with the regulator shall be considered not to have been existing sites
in use on said date and therefore must comply with the applicable
requirements of RSA 155-E and of this chapter as a new excavation
prior to use. The regulator may extend the registration period up
to an additional six months in the case of hardship.
A.
The regulator or its duly authorized agent is responsible
for the enforcement of this chapter as provided by RSA 155-E:10 and
may suspend or revoke the permit of any person who has violated any
provision of his permit, this chapter or RSA 155-E or made a material
misstatement in the application upon which his permit was granted.
Such suspension or revocation shall be subject to a motion for a rehearing
thereon and appeal in accordance with RSA 155-E:9.
B.
To ascertain if there is compliance with this chapter
or RSA 155-E, the regulator or its duly authorized agent may enter
upon any land on which there is reason to believe an excavation is
being conducted or has been conducted since the effective date of
RSA 155-E or this chapter. (See RSA 155-E:10, III.)
A.
Appeals. A person, aggrieved by the official decision
of the regulator, may appeal for a rehearing on such decision or any
matter determined thereby as provided by RSA 155-E:9 and within the
ten-day time period therein specified.
B.
Other regulations. Where this chapter is in conflict
with other local ordinances and/or regulations, the more stringent
shall apply to the extent not inconsistent with RSA 155-E or the purposes
thereof.
C.
Severability. The invalidity or unenforceability of
any provision of this chapter shall not render invalid or unenforceable
any other portion of this chapter which shall be severable.
D.
When effective. This chapter shall be effective upon
the filing of the same with the Board of Selectmen and the Town Clerk,
following a public hearing on the same and its formal adoption and
certification by the regulator.
