This article shall be entitled and known as "Mining and Topsoil
Sales." Nothing in this article is intended nor shall be construed
to authorize within the Town any explicitly prohibited use.
It is the purpose of this article to regulate the manner of
construction on, removal of materials from, filling of, draining,
cleaning, operating, and use of any lands or other premises for sand
or gravel pits, stone quarries, topsoil sales or for any other mining
and sale of excavated materials and prohibiting the use of any lands
or other premises for the aforesaid purposes, which do not comply
with this article.
A.
All mining
and topsoil excavation activities shall be in conformity with the
provisions of this article and shall be located only within areas
specifically permitted according to the provisions of this chapter.
B.
The provisions
of this article shall regulate any mining activity that does not fall
within the NYSDEC's jurisdiction as defined in the Environmental Conservation
Law.
A.
Before
any mining or topsoil sales activities are commenced and before any
topsoil, earth, sand, gravel, rock or other naturally occurring material
is removed from the ground, the owner or lessee of the premises or
the agent of either, duly authorized in writing, for such purposes,
shall obtain a permit therefor, and for that purpose shall file with
the Town Clerk an application for a permit in such form as the Town
Board may prescribe. Each application shall include a detailed report
of the proposed work and a plan setting forth in detail the nature
and extent of the proposed excavation. Such report and plan shall
show the exact condition of the subject plot or premises of land both
before and after the proposed excavation, including the location of
haul roads, impoundment areas, screening operations, water control
features, erosion control measures, and the sequence of operations.
There shall be filed with such application a legal description of
said premises, together with the name and address of the owner of
record of such premises and the names and addresses of the holders
of any mortgages thereon. The location of all buildings upon said
premises shall be set forth upon the plan accompanying said application,
which shall be drawn to scale, giving the location and dimension of
any and all buildings or other structures thereon. Such plan shall
further indicate any and all public or private streets or rights-of-way
adjacent to, in or upon said premises. A letter of intent shall be
submitted outlining the estimated amount of material to be removed
and the schedule for the work.
B.
Any permit
issued hereunder shall be conditioned that the premises, upon the
conclusion of such excavation, shall be filled within a period to
be specified therein with clean, nonburnable fill containing no garbage,
refuge, offal, hazardous waste, electronic waste, or any deleterious
materials.
C.
Dust-preventive
measures shall be used to prevent dust from spreading from the premises.
The restoration of the premises shall include grading to provide a
safe and stable grade. The restoration shall provide at least six
inches of topsoil over all excavated areas, which shall be immediately
reseeded with a permanent seed mixture or other fast-growing surface
vegetation until growth is reestablished.
D.
The Town
Clerk shall, upon presentation of a duly verified application for
a mining or topsoil sales permit accompanied by the consent, in writing,
of the owner, shall request a review from the Town Board. The Town
Clerk shall issue the permit upon obtaining the Town Board’s
approval for the issuance of a permit upon any conditions as may be
imposed by the Town Board in a particular case. The applicant shall
pay all associated fees as set by Town Board resolution and provide
a financial guarantee (cash or a letter of credit from an approved
financial institution) in an amount determined and approved by the
Town Board. Any financial guarantee shall ensure the faithful performance
of the terms and conditions of this article and any conditions noted
in the permit. Each permit shall be conditioned on the observance
of all municipal ordinances. Further, the applicant shall indemnify
and hold harmless the Town Board, the Town of Penfield, and its employees
and its agents for any and all damage to property of the Town, and
for compliance with the terms and conditions of such permit. The cash
proceeds of any guarantee, in the event of default, shall be conveyed
to the Town and the Town of Penfield shall be entitled to maintain
any action thereupon. Said guarantee shall remain in full force and
effect until a certificate of completion has been issued by the Town
Engineer certifying that all provisions of this article and the conditions
of any permit issued have been fully complied with.
E.
Applicants
shall complete and submit an environmental assessment form (EAF) or
an environmental impact statement, if required, and meet any and all
requirements of the New York State Environmental Quality Review Act
(SEQR), the New York State Department of Environmental Conservation
(NYSDEC), and the United States Army Corps of Engineers (USACOE).
F.
Each
permit issued pursuant to the terms and conditions set forth in this
article shall be granted for no more than six months after the date
of its issuance unless further extended by the Town Board, upon receipt
of input from the Town staff. Any extensions shall require payment
of fees as may be determined by the Town Board.
G.
All applications
for mining or topsoil sales shall be reviewed by the Town Board, which
shall make a determination, in its discretion, of the need to require
a public hearing on the matter. Such public hearing will be held not
less than three days nor more than 30 days after the public hearing
notice has been given prescribing the time, date, and place of the
public hearing. Such notice shall be given by the Town Clerk by causing
the same to be published in the official newspaper of the Town and
by posting said notice on the bulletin board in the Town Hall. Such
notice shall contain a brief explanation regarding the application.
Approval or denial of the permit application by the Town Board shall
be rendered after the conclusion of any public hearing on said application.
H.
Any proposed
modifications to the approved plans after a permit has been granted
shall be submitted to the Town Board for review and approval. No action
shall be taken until a written approval of the Town Board or authorized
official has been issued.
A.
No mining
or topsoil sales operation shall be conducted closer than 100 feet
to a public right-of-way or an adjoining property line, except that
grading may be conducted within such limits in order to provide adequate
access to and buffer of the premises. The setback/buffer area shall
not be used for any use in conjunction with the excavation and appurtenant
activities except for one public notice sign for identifying use,
buffering, and those conditions stated in the permit.
B.
All equipment,
structures, and other operational facilities, including sedimentation
ponds, shall not be closer than 100 feet to the public right-of-way
or to an adjoining property line.
C.
Access
and haul roads shall be constructed of a stone base able to support
an H-20 loading, as defined by the American Association of State Highway
and Transportation Officials (AASHTO). All access and haul roads leading
to public highways shall be dust- and mud-free. Mining/Topsoil screening
operations shall be located to minimize impacts of noise and dust
to adjoining residents. The contractor/operator shall provide dust
control measures at all times.
D.
Verification
of volume of materials to be removed and sufficient reserve of topsoil
for restoration work shall be provided, in writing, from a licensed
professional engineer, surveyor, or landscape architect.
E.
Fencing
shall be required on all sides of the excavation area with a depth
greater than four feet (vertical).
F.
Mining
and topsoil sales operations shall only be permitted between 7:00
a.m. and 5:00 p.m. Monday through Friday and between 8:00 a.m. and
1:00 p.m. on Saturday, except for Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day. Hauling trucks shall
enter and exit the premises only within the hours permitted. All equipment
operations shall be restricted to the above hours.
G.
All public
roadways shall be cleaned of spillage or windblown materials, as ordered
by the Town representative. The owner shall have a sweeper and water
truck on site within 24 hours of request by Town officials.
H.
All equipment,
buildings, structures, etc. shall be removed from the site within
two months of termination of the permit.
A.
The Town
reserves the right to inspect all operations to verify that the terms
and conditions of any permit are being complied with. Failure to allow
access to Town personnel or their agents may be grounds to revoke
the permit. The cost of Town inspections shall be reimbursed to the
Town by the applicant.
B.
The applicant
shall provide for inspections in accordance with the current Department
of Environmental Conservation SPDES permit for stormwater discharges.
Any disturbance of one acre or more shall require the filing of a
notice of intent (NOI) with the NYSDEC prior to the start of work.
A copy of the NOI shall be provided to the Town in an approved stormwater
pollution prevention plan (SWPPP).
C.
The active
mining and topsoil sales area shall not exceed five acres at any one
time. The applicant may request a five-acre disturbance waiver from
the Town Board. All provisions of the current Department of Environmental
Conservation SPDES permit for stormwater discharges shall be followed.
A permit shall not be required in the following instances:
A.
Nothing
contained in this article shall be construed to prevent a person from
removing topsoil from one part of his/her land to another part of
the same premises when such removal is necessary as an accessory use
or is made for the purpose of improving said property;
B.
Sites
subject to Town subdivision and site plan review processes, provided
that the application has received approval by the appropriate board
or authorized official;
C.
Excavation
for the purpose of constructing a basement wall, building, or utility,
or part thereof, for which a permit has been issued by the Town of
Penfield Building Department;
D.
Any capital
or public works project authorized by the Town of Penfield, NYSDOT,
or Monroe County; and
E.
Customary
agricultural operations not located in an Environmental Protection
Overlay District (EPOD).
A.
The authorized
official shall notify the applicant, in writing, of any violations
of this article. The applicant shall have seven calendar days to remedy
any violations.
