[HISTORY: Adopted by the Municipal Council of the Borough
of Hawthorne 12-3-2008 by Ord. No. 1960-08. Amendments noted
where applicable.]
This chapter may be cited and referred to as the "Hawthorne
Soil Moving Ordinance."
The Municipal Council hereby find that the uncontrolled and
unregulated excavation, filling and removal of soil has resulted and
will result in conditions detrimental to the public safety, health
and general welfare, deterring substantially the efforts of the Borough
to promote and effectuate the general purpose of municipal planning.
Whenever used in this chapter, the following terms shall be
deemed and construed to have the following meanings:
The board or official designated by this chapter to receive
and review soil permit applications and to issue soil permits (i.e.,
the Planning Board, Board of Adjustment, the Municipal Engineer or
the Construction Official) and in the event of an appeal the Municipal
Council.
Improvement of a lot by the construction or erection of one
or more buildings for residential commercial or industrial purposes
and improvement of lands through conservation and flood control.
Any person who shall move or remove soil, as the terms are
hereinafter defined.
Any parcel of land or portion thereof, the boundary lines
of which can be ascertained by reference to the maps and records,
or either, in the office of the Tax Assessor of the Borough of Hawthorne
or in the office of the Passaic County Clerk.
To dig; to excavate; to remove; to deposit; to place; to
fill; to grade, regrade, level or otherwise alter or change the location
or contour; to transport; or to supply. This term shall not be construed
to include plowing, spading, cultivating, harrowing or disking of
soil or any other operation usually and ordinarily associated with
the tilling of soil for agricultural or horticultural purposes.
Any person seized in fee simple of any lot or having such
other interest or estate therein as will permit exercise of effective
possession thereof or dominion thereover.
Any individual, firm, association, partnership, limited liability
company or corporation or any group of two or more of them.
Any earth, sand, clay, loam, gravel, humus, rock or dirt,
without regard to the presence or absence therein of organic matter.
Soil that, in its natural state, constitutes the top layer
of earth and is composed of 2% or more, by weight, of organic matter
and has the ability to support vegetation.
A.Â
No person shall excavate, remove or move, or cause, allow, permit
or suffer to be removed or moved any soil from, in or upon any lot
in the Borough of Hawthorne unless and until a soil permit therefor
shall first have been issued by the approving authority.
B.Â
Exceptions. No soil permit shall be required in connection with the
construction or alteration of a building or structure on any lot to
move soil incidental thereto, provided that no soil is removed from
the lot, and further provided that a building permit or swimming pool
permit, and where applicable site plan or subdivision approval, has
been obtained. Soil removed or imported in excess of two cubic yards
and up to a total of 100 cubic yards shall be exempted from obtaining
a soil movement permit, however, a soil movement permit exemption
form shall be filed with and approved by the Construction Official
before any soil movement takes place.
A.Â
Form of application. On forms prescribed and supplied by the approving
authority, the applicant shall set forth in triplicate:
(1)Â
The name and address of the applicant.
(2)Â
The name and address of the owner of the lot.
(3)Â
A description of the lot in question, identified as to the block
and lot or lots on the current Tax Assessment Map of the Borough of
Hawthorne.
(4)Â
The ultimate purpose or reason for excavating, moving or removing
the soil.
(5)Â
The kind and quantity in cubic yards of soil to be excavated, moved
or removed. In the case of removal, the place to which the soil is
to be removed and the kind and quality of the soil to be removed shall
be set forth. In the case of soil to be brought in, the place from
which the soil is to be brought and the kind and quality of the soil
to be brought in shall be set forth.
(6)Â
The proposed dates of commencement and completion of the work.
(7)Â
The name, address and telephone number of the person having direct
charge, supervision and control of the proposed excavation work.
(8)Â
The name, address and telephone number of the person having direct
charge or control of the operation of removing the excavated material.
(9)Â
A description of the equipment to be used in the excavation and removal
of the soil.
(10)Â
A description giving the number and size of the trucks or other
vehicles to be used in the removal of soil.
(11)Â
A description of the route or routes to be used by the vehicles
in removing the soil.
(12)Â
In the event that the removal of said soil is in connection
with the development of a subdivision or site plan, all of the information
required under Chapter 450, Subdivision of Land, or Site Plan Ordinance
of the Borough of Hawthorne together with evidence of Planning Board
approval thereof.
(13)Â
Evidence of compliance with applicable soil erosion and sediment
control regulations.
(14)Â
In the event that the contemplated work shall proceed in stages,
a map showing the division of the tract into mining sectors clearly
indicating the order in which each sector is to be mined and the length
of time to be devoted to each sector.
(15)Â
Such other data as the approving authority may require, consistent
with its review function and the standards governing said review.
(16)Â
In the event the movement of soil is in connection with a subdivision,
the applicant shall provide all information necessary to accurately
depict and quantify the soil movement that will be required for the
completion of the roadway and utilities and other required infrastructure.
Any soil movement with regard to construction on individual sites,
unless required by the infrastructure installation, will be included
in separate soil movement applications for each individual site.
B.Â
Signature and endorsement. The application shall bear the signature
of the applicant and the endorsement of the owner or owners of the
lands signifying approval of the application, consent of the applicant
to perform the proposed work and consent to the Borough in the event
of failure of the applicant to do so, to cause the proposed work to
be completed and otherwise terminated in keeping with the purposes
and objectives herein stated.
C.Â
In the event that the total quantity of soil to be moved is greater
than 500 cubic yards, the application and all other documents and
fees which may be required shall be submitted to the Planning Board.
In the event that the moving of soil for which a permit is required
is in connection with property on which subdivision or site plan is
being sought simultaneously, the application and all other documents
shall be submitted to the approving board. In all other cases, said
application and all other documentation shall be submitted to the
Municipal Engineer.
D.Â
Referral to Planning Board. Where, by reason of the size or complexity of the soil moving contemplated by the applicant, the Municipal Engineer may, notwithstanding the provisions of Subsection C above, within 10 days of the filing of the application, refer the application to the Planning Board for its approval and shall so notify the applicant. Upon such referral by the Municipal Engineer, the Planning Board shall assume exclusive jurisdiction of the application.
E.Â
Topographical map. Accompanying the application shall be eight prints
of a topographical map, prepared and certified by a licensed professional
engineer and land surveyor of the State of New Jersey, showing:
(1)Â
The dimensions and lot and block number of the lot upon which the
soil moving operations are to be conducted and of all surrounding
lands within 200 feet of the perimeter of the subject lot.
(2)Â
The present grades of the subject lot and all lots within 200 feet
of the perimeter of the subject lot.
(3)Â
The existing elevations of all buildings, structures, streets, bodies
of water and watercourses, natural or artificial.
(4)Â
The proposed final elevations at each point where existing elevations
shown on the map are to be changed as a result of the completion of
the proposed work.
(5)Â
Present surface water drainage and proposed facilities for surface
water drainage and, where applicable, channels of any streams, bodies
of water and watercourses, natural or artificial, including detailed
cross sections showing proposed channel widths, bank slopes, and method
of erosion control.
(6)Â
Proposed slopes and lateral supports to adjacent properties and on
the subject lot.
(7)Â
The limits of the area or areas within the subject lot within which
the soil moving operations are to be conducted.
(8)Â
Accurate cross sections showing the locations and quantities, in
cubic yards, of the soil to be moved.
(9)Â
A map shall be provided to delineate areas of slope ranging from
0% to 5%, 5% to 10%, 10% to 15% and 15% and up within the site and
their percentages of the area being disturbed.
(10)Â
Such other pertinent data as the approving authority may require.
F.Â
Where, by reason of the simplicity of the application, the approving authority determines that all or part of the information set forth in Subsection E above is not necessary to make an informed determination on the application, the approving authority may waive all or part of the requirements set forth in said Subsection E.
A.Â
Simultaneously with the filing of the application, there shall be submitted to the approving authority a fee, payable to the order of the Borough of Hawthorne, as provided for in Chapter 220, Fees.
B.Â
In the event that the fees posted by the applicant are insufficient
to meet the reasonable engineering, legal and administrative expenses
incurred by the Borough in processing the application and monitoring
the applicants performance, then the applicant shall, upon the request
of the Borough, immediately pay such additional engineering, legal,
administrative and other expenses incurred by the Borough. In the
event that the project is not completed or in the event that the applicant
does not pay all the fees required by this chapter, the sums due to
the Borough shall become an obligation of the owner of the property
and shall become a lien upon the property.
The Municipal Engineer shall from time to time upon his own
initiative, whenever directed by the Borough Administrator or whenever
directed by the approving authority shall make an inspection of any
site within the Borough, from which soil is to be moved and shall
make such engineering studies as may be required to determine the
effect of the removal of soil from the location as it relates to soil
erosion by water and wind, surface and subsurface water drainage,
soil fertility, lateral support of abutting streets and lands, public
health and safety and any other factors as may bear upon or relate
to the coordinated, adjusted and harmonious physical development of
the Borough. He shall also inspect the site to determine whether stakes
have been placed on each corner and whether grade stakes have been
placed at the existing elevation points designated on the topographical
map.
In considering and reviewing the application, the approving
authority shall be guided by the general purpose of municipal planning
and shall take into consideration the following factors:
A.Â
Soil erosion by water and wind.
B.Â
Surface water drainage.
C.Â
Soil fertility.
D.Â
Lateral support of abutting streets and lands.
E.Â
Public health and safety.
F.Â
Land values and uses.
G.Â
The general welfare of the Borough of Hawthorne and its citizens.
H.Â
The unsightliness of the premises after excavation.
I.Â
The effect of flooding.
J.Â
Whether the proposed work will create a nuisance.
K.Â
Whether the proposed work is necessary in connection with the immediate
development of the property.
L.Â
Traffic congestion and the effect upon the roads within the Borough.
M.Â
The effect that the proposed work would have on individual sanitary
sewage disposal systems.
N.Â
Preservation of existing watercourses.
O.Â
The creation of sharp declivities pits or depressions.
P.Â
Whether the proposed work constitutes a commercial activity.
Q.Â
Such other factors as may bear upon or relate to the development
of the coordinated and harmonious physical development of the Borough.
A.Â
The approving authority shall, within 60 days after the filing of
the application and the topographical map containing all of the information
required pursuant to the provisions of this chapter and the payment
of the requisite fee, grant or deny the application. The approving
authority in approving said application may attach such reasonable
conditions to said approval as it may deem necessary.
B.Â
The approving authority may, in its discretion, require a public
hearing prior to its decision on all applications to move less than
1,000 cubic yards. The approving authority shall require a public
hearing prior to its decision for all applications to move 1,000 cubic
yards or more.
(1)Â
By publishing a notice in an official newspaper of the Borough of
Hawthorne, at least seven days prior to the date set by the approving
authority, of the date set for the public hearing; and
(2)Â
By delivering a copy of said notice, by certified mail or by personal
service, to all property owners within 200 feet of the perimeter of
the subject property as their names appear on the municipal tax records.
C.Â
The applicant, at or prior to the public hearing, shall file an affidavit
with the approving authority certifying compliance with the notice
provisions above set forth.
D.Â
In the event that a public hearing is so ordered by the approving
authority, the time for the making of its decision shall be extended
to not later than 30 days after the date of the hearing.
E.Â
Failure of the approving authority to act within the time specified
herein shall be deemed a denial of the application.
F.Â
Nothing herein contained shall prohibit the extension of the time
periods herein set forth by the written consent of the applicant.
A.Â
Filing of appeal. Any person aggrieved by the decision of the approving
authority may, not later than 30 days after said decision, appeal
that decision to the Municipal Council.
B.Â
Public hearing. The Municipal Council may, in its discretion, require
a public hearing on said appeal and, if so required, shall cause a
notice setting forth the time and place thereof to be published in
an official newspaper of the Borough at least seven days prior to
the date set for the public hearing.
C.Â
Consideration of appeal; decision. The Municipal Council shall consider
the matter de novo and shall decide the appeal within 45 days from
the filing of the appeal or from the public hearing, whichever is
later. The Municipal Council may reverse, remand or affirm wholly
or in part, or may modify the decision of the approving authority.
The affirmative vote of a majority of the full authorized membership
of the Municipal Council shall be necessary to reverse, remand or
modify the decision of the approving authority.
A.Â
Contents of permit. The soil permit shall be in such form as may
be prescribed by the approving authority, signed by the Secretary
and the Chairman of the Planning Board or the Construction Official,
as the case may be, and shall contain any special conditions set forth
in the decision of the approving authority.
B.Â
Duration of permit. The soil permit shall be dated as of the date
it is actually issued, and the term of the permit shall not exceed
one year. All permits shall automatically expire on the termination
date unless an application for renewal has been made and approved
by the Planning Board, in writing, extending the permit. No such extension
shall exceed one year.
A.Â
Bond required. No soil permit shall be issued unless the applicant
has posted with the Borough a performance bond in a form and with
surety acceptable to the Borough, in such amount as the approving
authority shall determine, conditioned upon full and faithful performance
by the principal, within the time specified in the application of
all proposed work in accordance with the provisions of this chapter
and of the soil permit. In the event that the applicant fails to post
the required performance bond within 60 days, the approval of the
approving authority shall be automatically rescinded.
B.Â
Amount of bond. The amount of the bond shall be determined at the
rate of not less than $0.15 per cubic yard and not in excess of $0.50
per cubic yard of the amount of soil to be moved; provided, however,
that in no event shall the bond be less than the principal amount
of $2,000. In ascertaining the rate upon which to compute the amount
of the bond, the approving authority shall take into consideration
such factors as may bear upon the facility with which the proposed
work may be performed, including but not limited to the type and character
of soil, the extent of the area over which the soil moving operations
are to be conducted, the extent and depth of the various cuts and
fills, the extent to which the area of operations is wooded, the proximity
of the proposed operations to streets, buildings, natural or artificial
streams or watercourses, and general drainage conditions. In addition,
the bond shall be conditioned upon the repair, at the expense of the
owner and applicant, of any street or streets damaged by the transportation
of soil in connection with the application if, in the judgment of
the Municipal Council, such repairs are deemed to be necessary The
term "expense," as used herein shall include the cost of supervision
incurred by the Borough Engineer in connection with such repairs.
The approving authority may require that no more than 10% of the amount
of the bond required by this section shall be in the form of a cash
deposit.
C.Â
Written consent of surety required. Before the holder of any soil
permit proceeds before the approving authority with an application
for any amendment or alteration of the terms and conditions of any
outstanding soil permit, there shall be submitted to the approving
authority the written consent of the surety on the bond approving
the application for amendment or alteration and consenting to extension
of the bond coverage thereto.
D.Â
Application for release of bond. Applications for the release of
any bonds posted in accordance with the terms of this chapter shall
be accompanied by an affidavit stating that the soil moving operation
has been completed in accordance with the application and all plans
maps and other data filed therewith and in accordance with all resolutions
and conditions. The affidavit shall be executed by a licensed professional
or civil engineer of the State of New Jersey.
All excavation and removal of soil in the Borough shall be performed
subject to the following conditions, regardless of whether or not
a permit is required:
A.Â
All boulders, tree stumps and other debris shall be removed from
the property.
B.Â
In dry weather, the person conducting such operation shall dampen
the ground where operations are conducted to prevent dust.
C.Â
No trucks used shall be loaded above the level of the sides of the
truck to prevent spillage, and all streets shall be cleaned at the
applicant's expense each day of any spillage or soil on such
streets resulting from truck operation.
D.Â
All truck loads shall be covered with tarpaulin and, if necessary,
treated by water or chemical to prevent flying dust.
E.Â
No trucks, machinery or any part of the operation shall be conducted
before 7:00 a.m. or after 5:00 p.m. on weekdays, before 8:00 a.m.
or after 5:00 p.m. on Saturdays, nor at any time on Sunday or federal
or state legal holidays.
F.Â
All vehicles engaged in such operations shall use as routes only
those Borough streets which have been approved by the Planning Board.
G.Â
The entire area covered by the work shall be maintained and left
in such a manner as not to create or maintain a nuisance or condition
hazardous to life and limb or to the health or general welfare of
the inhabitants of the Borough of Hawthorne.
H.Â
All excavation, removal and other mandatory ground cover work proposed
in the application and map, including restoration of property to final
grades and subsequent seeding, must be completed within one year from
the date of the permit.
I.Â
No more soil shall be removed than is reasonably necessary for the
development and use of the land.
J.Â
No soil removal shall be allowed which shall cause damage to adjacent
properties or detrimentally affect the values of adjacent properties.
K.Â
The operation must be conducted in a phased fashion so that one sector
of the tract is mined and covered with planting prior to the commencement
of mining operations in another sector of the tract.
L.Â
The Borough Engineer or other authorized representative of the Borough
shall be permitted to inspect the seeding and planting and general
conduct of the mining operation to assure that the same is being conducted
in a manner that shall assure the satisfactory control of erosion
and that it is being conducted in full accordance with the remainder
of this chapter.
M.Â
Excavation shall not be below the grade levels shown in the topographical
map.
A.Â
Whenever any developer or excavator shall move topsoil in or on any
lot, provision shall be made for the storage of the topsoil within
the boundary lines of the lot.
B.Â
Except as provided, all of the topsoil so stored shall be uniformly
replaced over the entire area or surface of the lot on or before the
completion date set forth in the soil permit, so that the final grade
or grades of replaced topsoil shall be in accordance with the proposed
final grades shown on the topographical map.
C.Â
No developer or excavator shall remove to any point beyond the boundary
lines of the lot any topsoil whatsoever unless and until topsoil not
inferior in quality to that to be removed shall first have been replaced
uniformly to a depth of not less than six inches, measured from the
proposed final grades as shown on the topographical map, over the
entire surface or area of the lot, excepting only such portions thereof
as shall be or shall have become, since the date of filing of the
topographical map, permanently covered by a building or structure,
street pavement, curb sidewalk, driveway or other paved area or by
any body of water or waterway. In no event shall the developer or
excavator remove from the lot more topsoil than that comprising the
surplus or excess remaining after the replacement of the topsoil.
No developer or excavator shall, at any time in the course of
the work, dig or excavate more than six inches below the proposed
final grades as shown on the topographical map, unless:
A.Â
The soil permit specifies otherwise and the performance bond makes
specific provision for replacement, on or before the completion date,
of soil of sufficient quantity and kind to restore the final grades
to those shown on the topographical map.
B.Â
After issuance of the soil permit, the developer or excavator, before
digging or excavating below the minimum level, shall apply to the
approving authority and be granted an amendment of the application
and topographical map then in effect, which amendment may be granted
upon such terms as the approving authority may deem necessary to assure
adherence to the purpose and objectives of this chapter.
No developer or excavator shall deposit soil upon, fill in or
raise the grade of any lot without first making provision for:
A.Â
The use in the work of soil or such other materials as will not result
in deviation from the proposed final grades or the uniformity thereof
by reason of abnormal shrinkage or settlement.
B.Â
The collection and storage upon the lot of the original topsoil,
to the end that the topsoil shall not be buried beneath soil or other
material of inferior quality, and the uniform replacement of the topsoil
so stored over the entire area or surface of the fill soil or other
material so that the final grade or grades of the replaced topsoil
shall be in accordance with the proposed final grades shown on the
topographical map. In the event that such provision is not practicable,
provision shall be made for the uniform placement over the entire
area or surface of the fill soil or other material, excepting only
such portions thereof as shall be or shall have become permanently
covered by a building or structure street, pavement, curb, sidewalk,
driveway or other paved area or by any body of water or waterway,
of a layer of topsoil not inferior in quality to that of the original
topsoil, to a depth of not less than six inches, measured from the
proposed final grades as shown on the topographical map.
For the purpose of administering and enforcing this chapter,
any duly authorized officer, agent or employee of the Borough shall
have the right to enter into or upon any lands in or upon which soil
moving operations are being conducted to examine and inspect such
lands.
A.Â
In the event that any of the provisions of this chapter or any other
laws are alleged to have been violated, the Mayor or Council may terminate
or suspend any permit issued hereunder. Such suspension or revocation
shall be determined as follows:
(1)Â
The Mayor or other person authorized by the Mayor or Council shall
cause a written notice of the alleged violations of this chapter or
of any other laws involved to be served upon the applicant or any
of the agents of the applicant upon the premises together with a notice
of the time and place of a public hearing to be held 21 days after
service, directing the applicant to show cause before the Municipal
Council why the permit should not be suspended or revoked.
(2)Â
At the hearing, the Municipal Council shall hear all of the evidence
offered by the Borough and the applicant which is material to the
issue and shall make a prompt determination of its findings. If the
findings are in favor of the applicant, the charges shall be dismissed;
but if the findings are against the applicant, the permit issued may
be revoked entirely or suspended upon such conditions as the Municipal
Council may direct.
B.Â
In the event that any of the terms and conditions of this chapter
or the terms and conditions of the permit shall have proven to have
been violated, the permit shall be immediately suspended and all work
shall immediately cease.
(1)Â
If the owner shall eliminate the violations within 30 days of the
suspension, the owner shall apply to the Municipal Council, in writing,
for permission to continue the operation, and if the Municipal Council
is satisfied that the violations no longer exist, it may restore the
permit to the owner but such restoration shall not serve to increase
the time limit of such permit.
(2)Â
If such violations are not eliminated within said 30 days, the permit
shall be deemed to be automatically revoked and the bond declared
forfeit without any further action by the Municipal Council.
C.Â
This section is hereby made a part of each and every permit hereafter
issued by the Municipal Council, and acceptance of such permit shall
constitute complete acquiescence by the principal and surety on said
bond.
D.Â
No fee or other charge or portions thereof shall be refunded following
revocation or suspension of any permit.
Notwithstanding the provisions of § 420-18 above, when, in the judgment of the Mayor or the Municipal Council, or any designee of either, the moving and removal of soil causes a serious emergent and continued impediment to the passage of public traffic or endangerment to the public health, safety or welfare, the Mayor or Municipal Council or designee may temporarily halt such operation until the emergent danger to the public's health, safety or welfare is abated, but in no event shall such emergency suspension of operations exceed 30 days.
A.Â
Any person who shall violate this chapter shall, upon conviction
thereof, pay the highest possible fine not exceeding $2,000 or be
imprisoned in the county jail for a term not exceeding 90 days, or
both, for each offense, in the discretion of the court. Each day that
a violation shall continue shall constitute a separate offense.
B.Â
Upon the recommendation of the Borough Engineer and upon furnishing
the owner with written notice, the Borough may levy upon any bonds
furnished to guarantee performance of the work set forth in the soil
permit or soil agreement. In the event that said bonds are insufficient
to cover the costs of performing or completing said work, then the
costs of said performance shall be assessed against the property and
shall become a lien upon said property.
C.Â
Nothing herein contained shall preclude the Borough from pursuing
any civil remedy available in law or in equity.
