Town of Fishkill, NY
Dutchess County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Fishkill 9-10-1973 by L.L. No. 1-1973. Amendments noted where applicable.]
GENERAL REFERENCES
Environmental Board — See Ch. 10.
Planning Board — See Ch. 25.
Building construction administration — See Ch. 50.
Flood damage prevention — See Ch. 78.
Freshwater wetlands — See Ch. 82.
Stormwater management and erosion and sediment control — See Ch. 130.
Zoning — See Ch. 150.
[1]
Editor's Note: The title of this chapter was changed from "Soil Removal" by L.L. No. 3-1997, adopted 9-15-1997.
It is the established policy of the Town of Fishkill, and this chapter is adopted for the purpose of promoting this policy, that the natural topography of the land of the Town is a public asset which should be preserved and safeguarded. It is hereby declared that the various features of such topography, including the topsoil and other natural resources that constitute the land, the shape or contour of the land, the plant life and wildlife that is fostered on the land and water, or the flow thereof upon the land, are of prime concern to the welfare of the people of the Town of Fishkill, and no changes shall be permitted in such topography except as hereinafter provided.
For the purpose of this chapter, certain words and terms used herein are defined as follows:
NATURAL RESOURCES
Rock, sand, gravel, stone or aggregate located on or below the surface of the earth.
[Amended 9-15-1997 by L.L. No. 3-1997]
PROPERTY
Any lot or parcel of land.
TOPSOIL
The outer layer of the earth in which vegetable matter may take root and grow.
A. 
There shall be no regrading, removal or excavation of topsoil or other natural resources from any property in the Town of Fishkill, New York, except as provided for herein, or except as necessary for proper operation of a municipal sanitary landfill. These provisions shall not be construed as prohibiting or limiting normal use of land for farming, gardening or selective cutting of trees as it is related to agricultural or horticultural uses in any zoning district where such uses are permitted.
B. 
The permit procedures of this chapter shall not apply to the extractive mining of natural resources, if such activity involves more than 1,000 tons or 750 cubic yards of natural resources, whichever is less, within 12 consecutive calendar months, or proposes the mining of over 100 cubic yards of natural resources from or adjacent to any body of water not subject to the jurisdiction of Article 15 of the Environmental Conservation Law. For activity of this dimension, given the force and effect of Article 23, Title 27, of the Environmental Conservation Law (the "Mined Land Reclamation Law"), the special permit review provisions of § 150-43 of this Code shall apply.
[Added 9-15-1997 by L.L. No. 3-1997]
The following constitute uses for which a topsoil and excavation permit is not required:
A. 
The excavation of topsoil and other natural resources from within the limits of the right-of-way or slope rights of any Town, county or state highway or for the sole purpose of building roads and slopes incidental thereto which lie within the area of a subdivision approved by the Planning Board of the Town of Fishkill or on file in the County Clerk's office in Dutchess County, New York.
B. 
The improvement of a single lot or parcel of land in connection with the construction of a dwelling, multiple dwelling, building or any other structure or structures for which a building permit has been issued, provided such improvement shall conform to the following standards:
(1) 
Final slopes shall be finished at a grade no greater than the natural angle of repose except where supported by a retaining wall or foundation.
(2) 
Any lakes or ponds that are created shall have a sufficient depth and inflow of water to prevent their becoming stagnant.
(3) 
Topsoil may be removed in connection with any permitted excavation, but shall be replaced with earth in which vegetable matter may take root and grow and shall be seeded with grass, permanent pasture mixture or other fast-growing vegetation, repeatedly as necessary, until the growth is established.
(4) 
Topsoil or other natural resources which have been excavated to permit the improvement of property may be removed from the property, provided that the amount to be removed is in excess of that to be reused on the site of the improvement, and provided that this amount is specified in the building permit for such improvement.
(5) 
There is no processing of excavated materials by a rock crusher or similar equipment on the premises.
(6) 
Any regrading, removal or excavation which is permitted under the provisions of this section, subject to the issuance of a building permit, shall be completed within one year of the date of the issuance of said permit.
C. 
Landscaping purposes in which topsoil is removed from one part of the property and deposited on another part of the same property, provided that it is replaced with a cover of earth in which vegetable matter may take root and grow and shall be seeded with grass, permanent pasture mixture or other fast-growing vegetation, repeatedly as necessary, until the growth is established.
A topsoil and excavation permit is required for the following uses:
A. 
General site improvement. The improvement of property where the regrading, removal or excavation of topsoil or other natural resources, or the clearing of live, healthy trees three inches in diameter at breast height or larger, is not made in connection with the construction of a dwelling, multiple dwelling, building or any other structure or structures for which a building permit has been issued. Such regrading, excavation or topsoil removal shall be permitted by the Building Inspector in accordance with the following standards:
[Amended 11-10-2007 by L.L. No. 9-2007]
(1) 
All other provisions of the section are adhered to.
(2) 
Complete plans of the proposed excavation or regrading are presented to the Building Inspector,[1] to include the following:
(a) 
Existing topography of the property at five-foot contour intervals.
(b) 
The location of any streams or intermittent streams within or bounding the property.
(c) 
Soil types, as defined in the Dutchess County Soil Survey, found within the boundaries of the property.
(d) 
A stormwater pollution prevention plan (SWPPP) consistent with the requirements of Town of Fishkill Town Code Chapter 130. The SWPPP shall meet the performance and design criteria and standards in Chapter 130, Article V. The Building Inspector may, in his/her sole discretion, require an SWPPP for disturbances of less than one acre. In determining whether to require an SWPPP for disturbances of less than one acre, the Building Inspector shall consider the following:
[1] 
Water sources present on the site.
[2] 
The slopes present on the site.
[3] 
The height of the site.
[4] 
The soil conditions present on the site.
[5] 
The visual and/or scenic significance of the site.
[1]
Editor's Note: See Ch. 50, Building Construction Administration.
(3) 
The proposed excavation or regrading will not interfere with the natural drainage outside of the immediate excavation area.
(4) 
Any previous excavation or regrading on the property has been accomplished and completed in accordance with all the provisions of this chapter.
B. 
Commercial purposes. The regrading, removal or excavation of top-soil or other natural resources for commercial purposes shall be deemed, for the purpose of this chapter, to be the regrading, removal or excavation of topsoil or other natural resources other than the uses permitted under §§ 128-4 and 128-5A. No commercial excavation shall be permitted until it has been found by the Town Board that such excavation or any operation accessory thereto will not be detrimental to the appropriate and orderly development of any district in which it is situated or impair the value thereof. Excavation shall be permitted only after issuance of a permit by the Town Board after public hearing conducted in conformance with the requirements of § 114-2 of the Town of Fishkill Code. Notice of such public hearing shall be posted, published and mailed as required by § 114-2 not less than 10 business days before said hearing is held. Existing soil mining operations shall be permitted to continue operation after enactment of this chapter while their applications are being prepared and processed. However, applications must be submitted within 120 days of the effective date of this chapter. Permits for continuance of existing soil mining operations shall not be subject to public hearing but shall be issued upon review of said applications by the Town Board.
[Amended 4-15-2015 by L.L. No. 1-2015]
[Amended 7-6-1981 by L.L. No. 9-1981; 9-15-1997 by L.L. No. 3-1997; 11-10-2007 by L.L. No. 9-2007]
A. 
In all cases where a topsoil or excavation permit is required for commercial purposes, the applicant shall file with the Town Clerk a verified application, in triplicate, for such permit, together with complete plans for the proposed excavation, which shall show:
(1) 
The location of the property, the zoning classification of the property and all adjacent properties, all adjacent property owners, all buildings on the site, and all buildings off the site and within 250 feet of the boundary line of the property.
(2) 
Existing topography of the property at five-foot intervals.
(3) 
Location of any streams, wetlands, floodplains, lakes, ponds, watercourses or intermittent streams or watercourses within or bounding the property.
(4) 
Soil types, as defined by the Dutchess County Soil Survey, found within the boundaries of the property.
(5) 
Location and present status of any previous commercial operations on the property.
(6) 
Areas to be excavated, intended location of storage piles, the estimated amounts to be excavated, in cubic yards, existing and proposed slopes, details of existing and proposed drainage, including the proposed level of any impounded water, plans for erosion control and the location of all proposed structures and proposed access drives to the excavation site.
(7) 
Location of all structures used for a permitted or accessory use as defined in the Table of Use Regulations, § 150-33.
(8) 
Sufficient data so that excavation on the site shall be controlled to a depth no greater than five feet above the water table. The data provided shall be reviewed for sufficiency by the Town Engineer.
B. 
The application shall be accompanied by a stormwater pollution prevention plan (SWPPP) consistent with the requirements of Town of Fishkill Town Code Chapter 130. The SWPPP shall meet the performance and design criteria and standards in Chapter 130, Article V. The Town may, in its sole discretion, require an SWPPP for disturbances of less than one acre. In determining whether to require an SWPPP for disturbances of less than one acre, the Town shall consider the following:
(1) 
Water sources present on the site.
(2) 
The slopes present on the site.
(3) 
The height of the site.
(4) 
The soil conditions present on the site.
(5) 
The visual and/or scenic significance of the site.
C. 
The application for an excavation permit for commercial purposes shall be submitted in the name of the owner or any person duly authorized by such owner and shall be accompanied by copies of receipted tax bills indicating that all taxes, assessments and charges affecting said property have been paid. The applicant shall designate the Town Clerk as a person upon whom process may be served.
D. 
A performance bond shall be posted with the Town Board, in an amount and form to be determined by the Board, with the advice and recommendation of the Town Engineer and Town Attorney, but not to exceed $2,000 per acre of land to be excavated, to ensure conformance to the approved plans and all application regulations. The Town Board shall set a reasonable time limit for such bond but not to exceed two years; a bond may be renewed or extended with each permit renewal. Said bond shall remain in full force and effect until a certificate of completion has been issued by the Building Inspector, certifying to the fact that all provisions of this chapter and conditions of the permit have been complied with. In lieu of such bond, the applicant may post a cash deposit or certified check with the Supervisor of the Town.
E. 
Permits issued under this section shall expire two years from the date of issuance, except that after public hearing, to be held pursuant to this chapter, and upon a finding that all terms and provisions of this chapter have been complied with, the Town Board may extend permits for three-year periods.
F. 
The plans for any proposed excavation shall be submitted to the Dutchess County Planning Board in accordance with the procedure set forth in the General Municipal Law of the State of New York, to the extent that the same may be applicable to the application.
G. 
Applicants for a permit shall bear the expense of public notice advertising. In addition, each application shall be accompanied by a permit fee as provided for in Chapter 68, Fees.
[Amended 9-15-1997 by L.L. No. 3-1997; 11-10-2007 by L.L. No. 9-2007]
A. 
In all cases where a topsoil or excavation permit is required for continuance of existing soil mining operations for commercial purposes, the applicant shall file with the Town Clerk a verified application in triplicate for such permit, together with a plot plan, which shall show:
(1) 
The location of the property, the zoning classification of the property and all adjacent properties, all adjacent property owners, all buildings on the site and all buildings off the site and within 250 feet of the boundary line of the property.
(2) 
Existing topography of the property at five-foot intervals.
(3) 
Location of any streams, wetlands, floodplains, lakes, ponds, watercourses or intermittent streams or watercourses within or bounding any property.
(4) 
Soil types, as defined by the Dutchess County Soil Survey, found within the boundaries of the property.
(5) 
Location and present status of any previous commercial operations on the property.
(6) 
Areas to be excavated, the intended location of storage piles, the estimated amounts to be excavated, in cubic yards, existing and proposed slopes, details of existing and proposed drainage, including the proposed level of any impounded water, plans for erosion control and the location of all proposed structures and proposed access drives to the excavation site.
(7) 
Location of all structures used for a permitted or accessory use as defined in the Tables of Use Regulations.[1]
[1]
Editor's Note: The Tables of Use Regulations are included as attachments to Ch. 150, Zoning.
(8) 
Sufficient data so that excavation on the site shall be controlled to a depth no greater than five feet above the water table. The data provided shall be reviewed for sufficiency by the Town Engineer.
B. 
The application shall be accompanied by a stormwater pollution prevention plan (SWPPP) consistent with the requirements of Town of Fishkill Town Code Chapter 130. The SWPPP shall meet the performance and design criteria and standards in Chapter 130, Article V. The Town may, in its sole discretion, require an SWPPP for disturbances of less than one acre. In determining whether to require an SWPPP for disturbances of less than one acre, the Town shall consider the following:
(1) 
Water sources present on the site.
(2) 
The slopes present on the site.
(3) 
The height of the site.
(4) 
The soil conditions present on the site.
(5) 
The visual and/or scenic significance of the site.
C. 
The application for an excavation permit for commercial purposes shall be submitted in the name of the owner or any person duly authorized by such owner and shall be accompanied by copies of receipted tax bills indicating that all taxes, assessments and charges affecting said property have been paid. The applicant shall designate the Town Clerk as a person upon whom process may be served.
D. 
Permits issued under this section shall expire two years from the date of issuance, except that after public notice, to be given pursuant to this chapter, and upon a finding that all terms and provisions of this chapter have been complied with, the Town Board may extend permits for three-year periods.
E. 
The plans for any proposed excavation shall be submitted to the Dutchess County Planning Board in accordance with the procedure set forth in the General Municipal Law of the State of New York, to the extent that the same may be applicable to the application.
A. 
No excavation for commercial purposes shall be closer than 50 feet to any street line or other property line without special approval by the Town Board, and no excavation below the grade of a street shall be closer than 150 feet thereof.
B. 
The final slope of any excavated material shall not exceed the normal angle of repose of such material as determined by the Town Engineer, except where a suitable retaining wall, as shown on approved plans, is built to provide lateral support.
C. 
No rock crusher or similar apparatus or any equipment devoted to processing of excavated natural resources shall be located within 400 feet of the boundaries of the site. If any such preexisting equipment shall be moved, it must comply with the locational standards herein.
[Amended 9-15-1997 by L.L. No. 3-1997]
D. 
Truck access driveways to the excavation site shall be located so as to minimize danger to traffic and nuisance to surrounding properties. At the discretion of the Town Board, in order to prevent dust, such driveways shall be paved with oil and chip for a distance of 100 feet from the public highway into the site, and where the Town Board deems necessary, oil, water or chemicals shall be used as required to control dust.
E. 
Fences or barricades shall be erected, at the discretion of the Town Board, as judged necessary to protect pedestrians, vehicles and adjacent properties. These may include enclosed fencing of open pits and quarries as well as uphill side of sidehill excavations. Where fencing is deemed necessary, it shall be not less than six feet nor more than 10 feet high, shall be either a solid stockade or chain-link type and shall be kept in repair at all times.
F. 
No excavation shall be permitted which would interfere with public utility systems or would, in the judgment of the Town Board, create or aggravate any condition detrimental to the public health and safety.
G. 
Any topsoil that is stripped from the surface of the site in order to excavate subsoils shall be stockpiled for later use in reestablishing vegetation on the site.
H. 
No excavation shall be permitted to a depth greater than five feet above the water table unless the Town Board has approved the alternate land use for the lake purposes.
I. 
No excavation shall be permitted which would impair the natural drainage of the general area surrounding the excavation site. All existing watercourses shall be preserved and their natural flow shall not be diminished, except that such watercourses may be relocated in accordance with approved plans, provided that satisfactory provisions are made for the maintenance of flow. Any lake or ponds that are created shall have sufficient depth and inflow of water to prevent their becoming stagnant.
J. 
Every precaution shall be taken to prevent soil erosion, with the following standards being applied:
(1) 
As excavation is completed on each area indicated in the application, the land shall be brought to grades within the normal angle of repose of the material.
(2) 
Stockpiled topsoil shall be applied in the following order of priority:
(a) 
On excavated areas most subject to the effects of erosion.
(b) 
On excavated areas within 200 feet of the street or neighboring residences.
(3) 
Determination of areas most subject to the effects of erosion shall be reviewed with the Town Engineer. Excavated areas in Subsection J(2)(a) and (b) above shall be planted with whatever vegetation, in the judgment of the applicant, is best suited to the soil conditions. Plantings may consist of materials ranging from grasses to tree species used in reforestation. Plantings shall be repeated as necessary until the area is stabilized.
K. 
Where the application chooses to fill pits, holes or any other excavated areas, only clean fill containing no debris which would be defined as solid waste, including but not limited to industrial waste, construction and demolition debris and municipal wastes (as defined in Part 360 of the regulations of the Commissioner of the Department of Environmental Conservation) of any kind shall be permitted. In addition, no waste material containing asphalt, tar or other petroleum-based construction material shall be permitted.
[Amended 9-15-1997 by L.L. No. 3-1997]
L. 
Trucks hauling material consisting principally of clay, silt or fine sand passing a No. 200 sieve shall be covered to prevent dusting.
M. 
Excavation operations shall take place only from 7:00 a.m. to 5:00 p.m., Mondays through Fridays. No excavation operations, truck loading or other processing shall be permitted on Saturdays, Sundays, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day or Christmas Day. In addition, no blasting activity shall occur before 8:00 a.m. or after 5:00 p.m., nor shall any blasting be done on Saturdays, Sundays or legal holidays, unless expressly permitted in writing by the Fire Inspector.
[Amended 9-15-1997 by L.L. No. 3-1997]
A. 
This chapter is to be enforced by the Building Inspector.
B. 
The provisions of this chapter shall be applicable to all excavations, excavated areas and stockpiled materials which are being worked at the time this chapter becomes effective, except that existing soil mining operations shall be allowed a one-hundred-twenty-day period for compliance.
C. 
The owner, lessee, tenant or the person in possession or any person who violates or causes or participates in the violation of the provisions of this chapter shall, upon conviction thereof, be guilty of a misdemeanor and shall be liable to the penalties provided in § 268 of the Town Law. Whenever any person shall have been notified in writing by the Building Inspector that he is violating the provisions of this chapter or any person is served with a summons or warrant accusing him thereof, each week that he shall continue such violation after such notification or service shall constitute a separate, additional violation. Notwithstanding the penalties herein provided, the Town may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of any provision of this chapter.
D. 
The foregoing provisions providing for the enforcement of the regulations in this chapter contained are not exclusive but are in addition to any and all other laws applicable thereto.
E. 
Any person applying for an excavation permit or any person or persons authorizing or consenting to such application shall be deemed to have authorized the Building Inspector to go upon the premises at any reasonable time for the purpose of inspecting the same in order to determine that the provisions of this chapter are being or have been complied with.
F. 
The provisions of this chapter shall become effective immediately upon the filing thereof with the Secretary of State of the State of New York.