[HISTORY: Adopted by the Board of Trustees of the Village of Old Westbury 5-31-1967 as Ch. 1, Art. XXV, of the General Ordinances. Amendments noted where applicable.]
Building construction — See Ch. 74.
Drainage — See Ch. 91.
Environmental quality review — See Ch. 95.
Lot maintenance — See Ch. 132.
Street obstructions or encumbrances — See Ch. 180.
Streets and sidewalks — See Ch. 182.
Subdivision of land — See Ch. 185.
Trees — See Ch. 196.
Zoning — See Ch. 216.
This chapter shall be known and may be cited as "Village Ordinance No. 25 of the Village of Old Westbury, Regulating Land Excavations and Filling Operations."
When used in this chapter, certain words or combinations of words shall be defined as follows:
- A person authorized in writing to do or perform for another person the thing or the act which he does or performs.
- CONSTRUCTION OF A WALL, DRIVEWAY, SIDEWALK, BUILDING OR PART THEREOF
- Construction pursuant to a building permit issued by the authorized officer or employee of the Incorporated Village of Old Westbury.
- The disturbance of the topsoil or the subsoil by other than natural causes.
- The cultivation of the soil for the growing of plants, flowers or other vegetation.
- The owner of the land as shown by the public records in the office of the recording officer of the County of Nassau or by proof of title acquired from such owner of record.
- Includes a natural person, firm or corporation.
- PROPERTY LINE
- The dividing line between the highway, road or street and the property where it adjoins a highway, road or street or between the property and an adjoining property.
- PUBLIC USE OR PURPOSE
- A public improvement made by a municipality or agent of a municipality on the land where the excavation is made or on the road, street or highway adjoining such land.
- Consists of the underlayer or -layers of the ground other than topsoil. It includes sand, gravel, stones, rocks and clay in such "subsoil."
- Consists of the upper layer or layers of the ground consisting of back loam and organic matter in which a layer or layers of pasture grass will readily grow and be sustained, as distinguished from subsoil.
The masculine pronoun shall be deemed to include the feminine or neuter as the case requires.
Except as provided in § 98-14, no stone, sand, gravel, topsoil, earth of any kind or other natural materials shall be moved, removed, excavated or deposited in any way (including, without limitation, any such moving, removing, excavating or depositing in connection with a reduction or increase in grade of any kind) from or onto any land in the Incorporated Village of Old Westbury unless a permit shall first have been obtained therefor as hereinafter provided.
Before such a permit shall be issued, a written application therefor shall be filed with the Village Clerk by the owner or the agent of the owner of the land upon which the proposed moving, removing, excavating or depositing is to take place. Such application shall be in duplicate, shall be signed and verified by the applicant and shall contain the following information:
The full name of the applicant and his address.
The full name of the owner of the subject property and his address.
If the applicant is a person other than the owner, a copy of the written instrument by which the applicant obtained authority to make the application.
A statement of all other property in the Incorporated Village of Old Westbury owned by the owner and/or applicant identifying each such parcel by section, block and lot numbers as shown on the Nassau County Land and Tax Map.
A complete description of the proposed work, including a statement of the nature and three-dimensional extent of the excavation and/or filling proposed.
A statement of whether topsoil only is to be excavated or filled or subsoil only is to be excavated or filled or both topsoil and subsoil are to be excavated or filled.
A statement of the total cubic yards of material proposed to be moved, removed, excavated or deposited.
A complete statement of the proposed disposition of all material to be moved, removed or excavated and of the proposed source of all material to be deposited.
A statement that the applicant has read this chapter or that this chapter has been read to him and that if a permit is issued to him he will accept such permit subject to all the terms and requirements of this chapter.
Such other information and data as the Board of Trustees may require.
Such application for a permit shall be accompanied by the following documents, which shall be filed therewith and which are hereby deemed to be a part of such application:
A survey of the property upon which it is proposed to conduct such moving, removing, excavating or depositing of material. Said survey shall:
Not be less than 10 inches by 16 inches in size.
Be prepared by a duly licensed professional engineer or land surveyor of the State of New York.
Be certified by said engineer or surveyor to be true and correct.
Be dated within 30 days of the filing of the application.
Show all dimensions and courses of the subject property, all streets adjoining the property, the location of all buildings thereon and within 200 feet of the property line.
Show all dimensions and courses of the area proposed for the excavating or filling.
Show at indicated points, which shall be not more than 100 feet from each other over the whole area proposed to be excavated or filled and at least 100 feet beyond, the present elevation of the property and the proposed final elevation of the property after completion of the operations for which the permit is requested.
Show distances of the proposed work from the boundaries of the premises, from all the buildings, driveways and paved areas on all adjoining premises and from adjoining public streets.
A certificate of the Commissioner of Public Works of the County of Nassau or his duly authorized deputy that such proposed excavating and/or filling and the proposed finished grades of the subject property as shown on said survey will not interfere with the Comprehensive Drainage Plan of the County of Nassau and will not endanger any county or town road, street or highway or any other public property.
A certification of the Village Engineer that such proposed excavation and/or filling and the finished grades of the property as shown on said survey will not interfere with the Drainage Plan of the Village of Old Westbury and will not endanger or adversely affect any village road, street, highway, drainage easement, water easement, water main or other water installation or any other Village property.
A certified copy of the deed or copies of proof by which the applicant claims ownership of the property, with the liber, page and place of record thereof, if recorded.
If the applicant is the agent of the owner, a copy of the instrument under which he claims such agency and of the deed referred to in the previous subsection.
Such additional detail or information as may be required by the Board of Trustees, by the Superintendent of Public Works or by the Village Engineer.
Upon receipt of any such application, the Board of Trustees may, in its discretion, call a hearing open to the public for the consideration thereof and may at such hearing take such testimony and receive such exhibits from such witnesses as it may deem necessary or advisable to assist it in its determination with respect to the application.
The Board of Trustees may grant such a permit only if it finds affirmatively upon substantial evidence that the proposed moving, removing, excavating or depositing of material constitutes the minimum disturbance to the natural contours, trees and ground cover of the property as shall be reasonably necessary to accomplish the proposed improvement of the property; is consistent with the good, order, peace, health, safety, morals and general welfare of the inhabitants of the Village and of the community; is necessary to the reasonable use and development of the subject property; and is consistent with all other ordinances of the Village, including, without limitation, the Village Building Zone Ordinance. The Board of Trustees shall state in such permit, if granted, such restrictions and conditions as it may deem necessary, reasonable or desirable to protect and preserve the property of the Village and its inhabitants.
Any permit pursuant to this chapter shall be subject to the following rules and regulations which are hereby made a part of such permit but need not be included therein:
No such excavation of topsoil shall be made within 10 feet of any property line of the property on which such excavation is made. No such excavation of subsoil shall be made within 20 feet of any such property line.
Where subsoil is to be excavated to a depth in excess of six feet, barricades shall be erected and maintained for the protection of the public consisting of a substantial fence not less than six feet in height completely surrounding the property with no openings, except necessary gates for ingress and egress.
In order to prevent flying dust, no open, uncovered trucks shall be used, and the parts of the excavators or conveyors which carry or discharge the material to be excavated or deposited shall be covered. Tarpaulins may be used for such coverings, provided that they accomplish the purpose in the judgment of the inspector of the Incorporated Village of Old Westbury assigned to the operation or, if no inspector is assigned to the operation, in the judgment of the Superintendent of Public Works of the Village. The material excavated or deposited shall be discharged from the excavator or conveyor to the truck or from the truck through an enclosed chute which shall confine therein the dust from such material. Where bulldozers or other mechanical means are used to move or remove topsoil only, dust down or its equal shall be spread.
Where topsoil only is excavated, a minimum of six inches of compacted topsoil shall remain at all places over the area of the excavation.
Where the excavation shall be or shall include subsoil, the excavation shall be immediately refilled with clean, nonburnable fill containing no garbage, refuse, offal or other deleterious or unwholesome matter, and topsoil shall be spread and rolled to a depth of six inches over the refill so that such refill and topsoil shall restore the area excavated to the finished grades shown on the map presented with the application for the permit.
After restoration of the topsoil where the subsoil has been excavated or after the removal of topsoil only, the topsoil replaced or the topsoil left, as the case may be, shall be immediately seeded with a grass seed mixture to be approved by the Superintendent of Public Works and to be sown at the rate of 25 pounds to the acre until growth is established. Because such reseeding mixture will not root and grow to accomplish the purposes thereof at all times during the calendar year, permits will be issued or extended for operations to be carried on and completed only between March 1 and June 1 and between July 15 and October 15 of any year.
A permit issued under this chapter shall expire by limitation 30 days from the date of its issue, unless extended by the Village Board of Trustees.
The Board of Trustees may at any time during the operations of the permittee, under the permit, place an inspector for the Village on the site where such operations are being carried on, and in the event that such an inspector is so assigned to such operations, the permittee shall reimburse the Village for the compensation of such inspector while assigned to such operation to an amount not in excess of $30 per day for each day employed on such operation. The inspector may, from time to time, require that the permittee have test holes dug to see that this chapter is being complied with.
Failure of the permittee to dig test holes required by the inspector within 24 hours of the request therefor shall constitute automatic cancellation of the permit.
Before the issuance of a permit, the person, firm or corporation to whom the permit is to be issued shall execute and file with the Village Clerk a bond approved by the Board of Trustees in a penal amount to be fixed by said Board, but not less than $2,000, with a surety company authorized to do business in the State of New York as surety and conditioned for the faithful performance of the terms and conditions contained in this chapter, in the resolution granting the permit and in the permit itself; for the observance of all ordinances of the Village; and for the indemnification of the Village of Old Westbury for any damage to the Village from the work to be done pursuant to the permit.
The Board of Trustees may, in its discretion, require as a condition of the issuance of a permit that the person, firm or corporation to whom the permit is to be issued shall execute and file with the Village Clerk a maintenance bond guaranteeing to the Village maintenance and restoration of any and all Village streets to be used by trucks or other equipment in connection with the excavation or filling operation, said bond to be in a form and amount as approved by the Board of Trustees and shall be the bond of a surety company authorized to do business in the State of New York.
The Village Clerk shall charge and collect for an application for a permit to be issued under this chapter a fee of $30 where the area of the property to be excavated or filled does not exceed 5,000 square feet and $100 where the area to be excavated or filled exceeds 5,000 square feet.
In addition to the fee required by § 98-11, on the filing of the application for a permit with the Village Clerk, there shall be deposited with the Village Clerk a sum equivalent to $0.10 for each yard proposed to be excavated or filled, but not less than $1,000, to be applied by the Village to the actual expense incurred by the Village in connection with the application, which shall include but shall not be limited to advertising, architects, engineers, inspectors, expert and legal fees and other similar expenses. Any excess over $50 after payment of such expenses by the Village shall be refunded to the applicant, provided that the application shall be made for such refund within six months of the denial of such permit or, if the permit is granted, within six months of the completion of the work thereunder. In the event that such sum is insufficient to cover the expenses, the additional sum required shall be paid by the applicant to the Village Clerk within two days of a request therefor by the Clerk. Failure to make such payment within two days, as herein provided, shall be deemed an automatic denial of the permit if not yet issued and if already issued shall be deemed an automatic revocation of said permit.
Nothing in this chapter shall be deemed to allow or permit any commercial activity of any kind within the Village or any moving, removing, excavating or depositing (including, without limitation, any such moving, removing, excavation or depositing in connection with the reduction or increase of any kind in grade) of natural material for commercial purposes or for the sale thereof, and the same is prohibited, except as may be permitted by and approved pursuant to both the Village Building Zone Ordinance and this chapter.
No permit shall be required under this chapter:
If the amount of material to be moved, removed, excavated or deposited shall be less in aggregate than 2,500 cubic yards within any twelve-month period, provided that such work shall be incident and necessary to the construction or alteration of a walk, driveway, building or other structure on such land or to the landscaping or planting thereof and shall constitute the minimum disturbance to the natural contour and ground cover of the property as shall be reasonably necessary to accomplish the proposed improvement to the property.
For any work done by the Village for public purposes.
For any work required by the Planning Board as a condition for the approval of a subdivision map, unless the Planning Board shall specify that a permit shall be obtained for such work under this chapter. In any event, the subdivider shall be governed by the provisions of § 98-18 herein.
[Amended 7-18-1983 by L.L. No. 12-1983]
Notwithstanding the foregoing, in connection with the improvement, construction, filling or excavation of any property within the Village, the Superintendent of Public Works may request of the owner and/or contractor, at any time prior to the commencement of or during the work, a detailed plan certified to by a licensed engineer showing, in such detail as may be specified by the Superintendent of Public Works, the existing structures and elevations on the premises, all proposed excavations and filling thereof, the proposed final elevations of the property after completion of the work, the quantity of material to be moved on, removed from, excavated from or deposited on the property and such other written data pertaining to the existing and proposed elevations, grading, drainage and planting on the property as may be specified by the Superintendent of Public Works. In the event that such information shall not be supplied to the Superintendent of Public Works within 48 hours after written request therefor shall be delivered to the owner or contractor or the agent or representative of either, the Superintendent of Public Works may order all construction, excavation, grading, filling and other similar work on the premises to stop forthwith and to remain stopped until such information shall be supplied. No such work shall be carried on in violation of any such order by the Superintendent of Public Works.
Any person, firm or corporation violating this chapter or taking part in or assisting in any such violation of this chapter shall be guilty of an offense. For each such offense, any such person, firm or corporation shall be punishable by a fine not exceeding $100. Each day that a violation exists or continues shall be deemed a separate offense.
In addition to any penalties or remedies hereinbefore prescribed or otherwise available by law, the Board of Trustees may also maintain an action or proceeding in the name of the Village in a court of competent jurisdiction to compel compliance with or to restrain by injunction any violation of this chapter, and appropriate actions or proceedings may be taken by the Village or any person at law or in equity any moving, removing, excavating or depositing regulated by this chapter or to restrain, correct or abate a violation of this chapter.
[Added 7-18-1983 by L.L. No. 12-1983]
Except as provided in Subsection B, no person shall remove any topsoil from any property located in the Village; provided, however, that topsoil may be moved within the confines of a subdivision or parcel to be partitioned during development of such property as long as the topsoil is not taken outside the boundaries of such property taken as a whole. The Superintendent of Public Works may allow topsoil to be removed temporarily from such property during development if in his judgment such temporary removal is in the interests of orderly development of the property taken as a whole.
The Board of Trustees may permit topsoil to be removed from a property if the Board finds that such removal will further the health, safety and welfare of Village residents and will not unreasonably deplete a natural resource nor otherwise have a detrimental impact on the environment or ecological system of the Village.
[Added 9-17-1984 by L.L. No. 9-1984]
The provisions of this chapter shall apply to operations which involve the excavation of not more than 2,500 cubic yards of material on lots of two acres, not more than 5,000 cubic yards of material on lots of four acres and not more than 7,500 cubic yards of material on lots of six acres. Excavation in excess of the above amounts shall be permitted only if the Board of Trustees finds that such excavation will further the health, safety and welfare of Village residents and will not unreasonably deplete a natural resource nor otherwise have a detrimental impact on the environment or ecological system of the Village.