[HISTORY: Adopted by the Board of Selectmen of the Town of Salem as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-15-1993 (Ch. 182 of the 1995 Code)]
Chapter 155-E of the New Hampshire Revised Statutes Annotated requires that, with several exceptions, all mining and excavation operations in the state obtain prior approval and permit from the local municipality in which the operation is to occur. The purpose of the statute and of these excavation regulations is to minimize safety hazards created by open excavations; to safeguard the public health and welfare; to preserve our natural assets of soil, water, forests and wildlife; to maintain aesthetic features of our environment; to prevent land and water pollution; and to promote soil stabilization.
Additional relevant definitions are contained in RSA 155-E, as amended, and are made part of these regulations.
As used in this article, the following terms shall have the meanings indicated:
- Sand, gravel, rock, soil or construction aggregate produced by quarrying, crushing or any other mining activity or such other naturally occurring unconsolidated materials that normally mask the bedrock.
- A land area which is used, or has been used, for commercial taking of earth, including all slopes. Excavations shall be considered commercial if earth material is sold or resold on or off the excavation site. In addition, an excavation shall be considered commercial if earth materials are transported to other land whose ownership is different than the ownership of the land from which the earth was excavated.
- EXCAVATION AREA
- The area within an excavation site where excavation has occurred or is eligible to occur under the provisions of RSA 155-E and these regulations.
- EXCAVATION SITE
- Any area of contiguous land in common ownership upon which excavation takes place.
- The Town of Salem Planning Board.
All excavation areas require a permit except lawful existing excavations, stationary manufacturing plants, public highway excavations, and other exceptions as allowed in RSA 155-E:2 and 155-E:2-A.
The permit and zoning exemptions under § 252-3 shall not apply to any abandoned excavations as defined below.
Any excavation, except for stationary manufacturing plants, for which the affected area has not been brought into complete compliance with the reclamation standards of these regulations (§§ 252-6 and 252-8) shall be deemed abandoned if:
No earth material of sufficient weight or volume to be commercially useful has been removed from the site during any two-year period; the regulator may extend the two-year period if the owner/operator submits an acceptable timetable for reclamation to the regulator and posts a performance guarantee in a form and amount prescribed by the regulator sufficient to cover the costs of reclamation;
The excavation site is still in use but does not conform to the site reclamation requirements of §§ 252-6 and 252-8 of these regulations, or the owner/operator has not submitted an acceptable reclamation timetable to the regulator and posted a performance guarantee sufficient to cover the costs of reclamation; or
The owner/operator of the excavation has neither secured a permit pursuant to these regulations nor filed a report of an existing excavation with the Town of Salem by August 4, 1991.
The regulator, after notice and hearing pursuant to RSA 155-E:7, may order, in writing, the owner of any land containing an abandoned excavation to either file an acceptable reclamation timetable and performance guarantee within a stated reasonable time by the regulator to do so or complete the reclamation in accordance with these regulations within one year of notification.
Failure to complete said reclamation within the prescribed time period may result in the regulator requesting the Board of Selectmen to complete the reclamation at the expense of the Town. The Town's costs shall constitute an assessment against the owner and shall create a lien against the real estate on which the excavation is located. Such assessment and lien may be enforced and collected in the same manner as provided for real estate taxes.
Except as provided for in § 252-3, any owner/operator subject to RSA 155-E shall, prior to excavation, apply to the Planning Board for a permit for excavation and submit a reclamation plan. The applicant shall also provide a copy of the application to the Town of Salem's Conservation Commission for comments. The permit application shall be signed and dated by the applicant, and the excavation plan shall contain the applicable information requested in the Excavation Application Checklist (see Appendix A). Waiver requests pertaining to these regulations may be submitted in writing to the regulator in accordance with § 252-16. All expenses for preparation of all plans, maps, and reports accompanying the application shall be borne by the applicant.
Copies of related permit approvals and other documents pertinent to the excavation proposal, such as the Water Division of the New Hampshire Department of Environmental Services (RSA 485-A:17), New Hampshire Wetlands Bureau (RSA 482-A), stump disposal, New Hampshire Department of Transportation (access permit, RSA 236:9 through 236:14), and any other permits required by state or federal regulations, shall be submitted, including such other information as the regulator may reasonably require.
[Amended by the Board of Selectmen 11-2-2015]
Hauling information shall be submitted, including routes to be utilized and the type and weight of motor vehicles involved, and the frequency and schedule of operations of such vehicles shall be provided to the regulator prior to the issuance of an excavation permit. The regulator may require modifications to such plans and/or may place conditions upon such operations, depending on surrounding land uses and road conditions. The regulator reserves the right to conduct a traffic study at the applicant's expense to ensure that public safety, neighborhood compatibility and road capacity and condition have been properly considered and addressed in the hauling plan.
Editor's Note: Appendix A is included as an attachment to this article.
Size and reclamation time limit on new excavations. No excavation of a new area shall exceed five acres in size at any one time. Any permitted excavation shall be reclaimed according to the approved application within one year after the permit expiration date. If reclamation of the site is not completed within one year after the permit expiration date, the Town may declare part or all of the performance guarantee forfeited and use these moneys to reclaim the site.
No excavation covered under RSA 155-E shall be permitted closer than 50 feet to the boundary of a disapproving abutter. If written concurrence is received from an abutter, then the boundary setback shall be 10 feet.
No excavation covered under RSA 155-E shall be permitted closer than 150 feet to an existing dwelling or to a dwelling for which a building permit has been issued at the time the excavation is begun.
No excavation shall be permitted within 75 feet of any great pond, navigable river, or any other standing body of water 10 acres or more in area or within 25 feet of any other perennial stream, river, or brook (as delineated on United States Geological Survey maps), or any naturally occurring standing body of water of less than 10 acres, prime wetlands as designated in accordance with RSA 482-A:15, I, or any other wetland greater than five acres in area as defined by the New Hampshire Wetlands Bureau.
[Amended by the Board of Selectmen 11-2-2015]
No excavation shall be permitted below road level within 50 feet of the right-of-way of any public highway as defined in RSA 229:1 unless such excavation is for the purpose of said highway.
Appropriate erosion, sedimentation, air and water quality measures shall be integrated into the excavation process. Excavations shall comply with the grading, drainage, and erosion and sediment control provisions of the Town's Subdivision Regulations.
Where the depth of excavation will exceed 15 feet and temporary slopes will exceed 1:1 in grade, every reasonable effort shall be made to warn of danger and/or limit access to the site. In addition, in accordance with RSA 31:41-b, the regulator may require removal, stabilization, or fencing of such hazardous embankments, for the protection of the health and safety of the public.
Excavation practices which result in siltation in streams or degradation of any water supplies are prohibited.
Topsoil shall be stripped from the excavation area and stockpiled for use in subsequent reclamation of the site. It shall be protected from erosion (e.g., by seeding, covering, or other acceptable practices). No topsoil shall be removed from the site without specific approval from the regulator.
All temporary structures required during excavation operations shall be removed from the site within 30 days after such operations cease.
All vehicles transporting excavated material shall utilize adequate covering and/or sideboards to prevent dust and spillage when loaded.
No fuels, lubricants or other toxic or polluting chemicals shall be stored on site unless in compliance with state and federal laws or rules pertaining to fuels and lubricants or other toxic or polluting chemicals.
Prior to the stripping of topsoil or removal of stumps or other material from any land area that has not yet been excavated, the excavator shall file a reclamation bond or other performance surety, as prescribed by the regulator, sufficient to cover the cost of site reclamation.
Access roads leading to 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 (highway access) shall be adhered to by the applicant and shall be shown on the excavation plan.
Permit approval shall be conditional on compliance by the applicant with street and highway regulations promulgated by federal, state and local units.
No excavation shall substantially damage any aquifer identified on mapping by the U.S. Geological Survey.
The applicant shall be responsible for a proportionate share of refurbishing existing Town roads which access the excavation site and for the repair of Town-maintained roads which are damaged as a result of hauling earth from the site. The regulator may require these costs to be part of the performance guarantee.
No solid and/or hazardous waste, septage, dredge spoils, or organic waste and debris shall be disposed of on the excavation site unless specifically authorized and/or permitted by the appropriate federal, state and local authority(ies).
The applicable state statutes and regulations pertaining to forest practice and timber harvesting shall apply to the removal of vegetative cover at excavation sites.
The regulator shall approve the hours of operation. Specified days (e.g., Sundays and state and/or federal holidays) shall be restricted for operation by the regulator. Hours of operation, including any machinery use, other than those stipulated may be allowed if specifically authorized by the regulator.
Excavation operations shall be set back at least 40 feet from wetlands as defined in Chapter 490, Zoning, and it must be demonstrated that no sedimentation of the wetlands will occur as a result of the excavation. The regulator shall have the authority to require greater wetlands setbacks in situations where it can be demonstrated that such setbacks are necessary.
Within 12 months after the expiration date of a permit issued under these regulations, or of the completion of any excavation, whether subject to permit or not (whichever occurs first), the owner of the excavated land shall have completed the reclamation of the affected area(s). With the exception of those excavations associated with stationary manufacturing plants, the following minimum standards must be met as part of the reclamation:
Reclaimed slopes shall blend with the surrounding terrain and shall not be abrupt.
All debris, stumps, boulders, etc., shall be lawfully disposed of in a manner acceptable to the regulator or its designee.
Ground levels and grades shall be established as shown on the approved reclamation plan as soon as practical during site excavation, but not later than one year after excavation has been completed.
The responsible party shall not be released from its performance commitment (performance guarantee) until the regulator certifies compliance with all terms of the excavation plan and the reclamation plan.
Any excavated area of five contiguous acres or more which is either fully excavated per the approved plan (excluding bedrock) or from which no earth materials have been removed for a two-year period shall be reclaimed in accordance with § 252-6 and this section within one year following such full excavation or two-year period, regardless of whether other excavation is occurring on adjacent land in contiguous ownership.
The regulator may require the elimination of any standing bodies of water created in the excavation project that may constitute a hazard to health and safety.
Upon completing the reclamation, the topography of the land shall be left so that water draining from the site leaves the property at the original, natural drainage points and in the natural proportions of flow.
The regulator shall not grant a permit under the following conditions:
Where existing visual barriers would be removed, except to provide access to the excavation.
Where the excavation would substantially damage a known aquifer, so designated by the U.S. Geological Survey in the report titled "Geohydrology and Water Quality of Stratified-Drift Aquifers in the Lower Merrimack and Coastal River Basins, Southeastern New Hampshire, 1992."
For excavation within 150 feet of an existing dwelling or a dwelling for which a building permit has been issued at the time the excavation is begun.
Where the excavation is not permitted by zoning or other applicable ordinances, unless the application is approved by variance or the special exception procedure contained in RSA 155-E:4, III.
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.
When the scope of a project for which an excavation permit has been issued is proposed to be altered so as to affect either the size or location of the excavation, the rate of removal or the plan for reclamation, the owner shall submit an application for amendment of his excavation permit. The amended application shall be subject to approval in the same manner as provided for an excavation permit.
Prior to the regulator approving an application for a permit or an application for an amended permit, a public hearing shall be held within 30 days of receipt of a completed application. 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. At least 14 days' notice of the time and place of such hearing shall be published in a paper of general circulation in the Town, and legal notice thereof shall also be posted in at least three public places in the Town; the 14 days shall not include the day of publication or the day of the meeting but shall include any Saturdays, Sundays and legal holidays within said period. Within 20 days of said hearing or any continuation thereof, the Planning Board shall issue a written decision approving or disapproving the application, giving reasons for disapproval.
If the regulator, after public hearing, approves the application for a permit and determines it is not prohibited by these regulations, it shall grant the excavation permit upon the posting of a performance guarantee in the amount determined by the regulator to be sufficient to guarantee compliance with the permit. The performance guarantee shall be for a reasonable time period determined by the regulator. A copy of the permit shall be prominently posted at the excavation site and the principal access thereto. A permit shall not be assigned or transferred without the prior written consent of the regulator. Unless otherwise specifically decided by the regulator, a permit shall be valid for a period of one year from the date of issuance. The regulator may include in a permit such reasonable conditions as are consistent with the purpose of RSA 155-E and these regulations and may include excavation permit requirements which are more stringent than the standards set forth in RSA 155-E, including the provision of visual barriers to the excavation. A permit fee in an amount determined by the regulator for application plan review and annual compliance review, by the regulator or its designated agent, shall be assessed to the applicant upon application for permit. In addition, fees may be required for the municipality's designated engineer or other agents of the regulator to periodically conduct required studies or field reviews at the excavation site to ensure compliance with the approved excavation and reclamation plans.
The regulator shall establish the amount of a performance guarantee prior to the issuance of the excavation permit. The performance guarantee amount shall be reasonably sufficient to guarantee compliance with the restoration in compliance with §§ 252-6 and 252-8. The guarantee requirements shall be based on the acreage of the project or approved phases and the estimated per acre restoration costs. The performance guarantee will be returned to the applicant when restoration work has been completed and a final satisfactory site inspection has been conducted by the regulator or its designee.
If the regulator disapproves or approves an application for an excavation permit or an application for an amended permit, any interested person affected by such decision may appeal to the regulator for a rehearing on such decision or any matter determined thereby. The motion for rehearing shall fully specify every ground upon which it is alleged that the decision or order complained of is unlawful or unreasonable, and said appeal shall be filed within 10 days of the date of the decision appealed from. The regulator shall either grant or deny the request for rehearing within 10 days, and if the request is granted, a rehearing shall be scheduled within 30 days. Any person affected by the regulator's decision on a motion for rehearing may appeal in accordance with the procedures specified in RSA 677.
The regulator or its duly authorized agent may suspend or revoke the permit of any person who has violated any provision of his permit or these regulations 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 rehearing thereon and appeal in accordance with § 252-14.
Fines, penalties and remedies for violations of this regulation shall be the same as for violations of RSA Title LXIV, as stated in RSA 676:15, 676:17, 676:17-a and 676:17-b.
[Amended by the Board of Selectmen 11-2-2015]
The regulator or its duly authorized agent(s) will conduct site inspections to verify permit compliance on an annual basis, unless a more frequent site visitation is necessary due to special characteristics of the excavation or restoration plans. To ascertain if there is compliance with this regulation, a permit issued hereunder or an order issued hereunder, the regulator or its duly authorized agent(s) may enter upon any land on which there is reason to believe an excavation is being conducted or has been conducted since August 24, 1979.
Where these regulations are in conflict with other ordinances, regulations or laws, the more stringent shall apply.
The regulator, upon application and following a public hearing, may grant a waiver in writing in cases where, in the opinion of the Planning Board, strict conformity would pose an unnecessary hardship to the applicant and the waiver would not be contrary to the spirit and intent of the regulations (except as prohibited by RSA 155-E). The written decision shall state specifically what standards, if any, are being relaxed and include reasonable alternative conditions or standards. The regulator's decision on any waiver request may be appealed in accordance with § 252-14.
[Adopted by the Board of Selectmen 2-26-2018]
Per the Town of Salem, New Hampshire, Board of Selectmen, a person shall not disturb, excavate, or open the ground or pavement in any street, highway, sidewalk, or within the Town right-of-way, without first obtaining authorization from the Municipal Services Department, Engineering Division. Street opening permits shall be issued on an application form provided by the Town.
All applications for a permit to excavate in, or open, a public right-of-way shall include, for each permit applied for, the fees listed in general permit conditions and construction requirements. The Municipal Services Department is authorized to establish and publish rules, regulations, and procedures, including general permit conditions and construction requirements related to street excavation permits, and to prescribe the forms necessary for the management and operation of the excavation permit programs under this Code. These rules, regulations, and procedures shall be subject to review and approval by the Board of Selectmen.
Permit requirements are as follows:
Persons who operate without a permit or violate the provisions of any permit required by this article shall be subject to the penalty outlined in general permit conditions and construction requirements. If the Engineering Division determines that an excavation is not being carried out in accordance with the requirements, a written notice will be issued to the persons or business entities in violation. The written notice will generally contain pertinent information, including excavation location, violation, and any applicable penalties assessed, including right to excavate in the Town.
Per Article 36 of the 1990 Annual Town Meeting: to prohibit excavation, including utility cuts, within the traveled way of any newly reconstructed roadway of the Town for a period of five years from such reconstruction, except for emergency excavation which the Board of Selectmen determines to be in the interest of public health and safety.
In an effort to protect the Town's investment in its infrastructure, excavations in newly constructed, reconstructed, rehabilitated, or overlaid pavements within the public right-of-way or on Town property, no excavation shall occur under the following:
The Town through its Board of Selectmen may grant waivers under the following but not limited to:
Excavations to remedy a public emergency or a situation that creates an imminent threat to the public safety, health, or welfare.
Repair or modification to prevent interruption of essential utility services where no reasonable alternatives are available to avoid excavation in new pavements.
Relocation work that is mandated by state or federal legislation.
Utility services for new development, buildings, or parcels without existing utility services where no other reasonable means of providing services exists or which are identified in utility master plans as determined by the Engineering Division.
Excavations within streets under moratorium where reconstruction is needed due to failure of original pavement.
In all of the above, if warranted and allowed, the applicant will pay an additional pavement life reduction factor. This is calculated by the following:
The Board of Selectmen as recommended by Municipal Services may require full lane width mill and overlay for any trench that falls into this category.
Pavement cutting. All bituminous concrete or concrete pavements shall be cut before any excavation is started. The pavement shall be neatly and uniformly saw cut at each side of all trenches to ensure against unnecessary damage to pavement. An acceptable alternative to saw cutting is cold planing.
Excavation. Excavation shall be performed in a manner as to produce the minimum possible width of disturbance. Excavation and handling of materials shall be performed in a manner as to minimize the possibility of cave-ins. Sheeting and shoring shall be used in accordance with OSHA requirements to prevent such undermining. Pavement projecting over undermined areas shall be saw cut square and removed. No opening or excavation in any street shall extend beyond the center line of the street before the excavated side of the street is made passable to traffic. Where a trench crosses a street, steel plates capable of bridging the trench and supporting traffic may be used.
Backfill material may consist of material excavated during the course of construction if dry, but excluding pieces of pavement, frozen material, organic matter, topsoil, muck, peat, clay, rocks larger than six inches, or any other deleterious material that is deemed unacceptable by the Engineering Division. If considered unsuitable for backfill, excavated material shall be replaced with granular backfill as specified in the "Standard Specifications for Road and Bridge Construction," State of New Hampshire, Department of Transportation (Sand-NHDOT 209.3 Gravel-NHDOT 209.4).
Excavated material shall be replaced or backfilled in layers or courses not to exceed 12 inches in compacted thickness; and shall be compacted at or near optimum moisture content using pneumatic tampers, vibratory compactors or other approved means. Select materials immediately under the pavement (gravels and processed gravels or reclaimed asphalt) shall be replaced in kind or to a minimum depth of 12 inches of gravel and four inches of crushed gravel meeting NHDOT Standard Specifications for Road and Bridge Construction (Gravel NHDOT 304.2, Crushed Gravel 304.3).
Compaction. All excavated materials shall be compacted to a minimum of 95% of the optimum density (ASTM 1557 Method D). A compaction test performed by a certified material testing laboratory may be required. If required, the compaction test must be performed prior to paving and the results submitted to the Engineering Division. If a trench exceeds 100 feet in length, compaction tests shall be required every 100 feet prior to paving.
Work zone maintenance. The roadway shall be periodically swept to remove materials from the traveled way. The roadway shall be cleaned of all foreign materials at the end of each working day.
Trench restoration. A typical section for permanent pavement repair is attached as a reference. In general these guidelines will be followed accordingly with the Engineering Division making the final determination on any variance in consideration of the application.
Bituminous trench patch. A temporary patch shall be placed using one of the following methods:
Temporary patch method one. Bituminous concrete binder course will be brought to the surface grade at a minimum depth of 2 1/2 inches. This temporary patch will be maintained as necessary by the contractor and allowed to remain in place for a minimum of 30 days but not more than 60 days (stabilization period). At the end of the stabilization period the temporary patch will be cut out and the trench trimmed with neat straight cuts and square corners a minimum distance of 12 inches onto undisturbed material beyond the limits of the temporary patch area or of the observed settlement area, whichever is greater. The contractor will add or remove crushed gravel and compact, if necessary.
Temporary patch method two. The gravels shall be brought to the appropriate grade and bituminous concrete binder course brought to the surface grade. This temporary patch will be maintained as necessary by the contractor and allowed to remain in place for a minimum of 30 days but not more than 60 days (the stabilization period). At the end of the stabilization period the temporary patch will be milled to the depth of 1 1/2 inches a minimum distance of 12 inches onto undisturbed material beyond the limits of the temporary patch area or of the observed settlement area, whichever is greater.
Permanent patch shall be installed as follows:
Temporary patch and existing pavement shall be removed in a manner that results in no damage to adjacent pavement and shall be replaced with an equal depth but not less than four inches (two-and-five-tenths-inch binder course Type B and one-and-five-tenths-inch wearing course Type F) of hot bituminous pavement conforming to the standard specifications below.
Limits of saw cuts or milling for final patching shall be approved by the Engineering Division prior to execution of final paving. The Town may require the limits of the area to increase due to any damage in the work area.
In the case of a transverse or diagonal trenching, the pavement shall be cut to provide a diamond-shaped patch with at least two-foot minimum overlap, four-foot in center if full width, of the final patch onto undisturbed material that will permit only one wheel of a vehicle at a time to strike the patch area.
An approved asphalt emulsion (tack coat) shall be applied to the face of all exposed joints of the existing pavement and between all pavement lifts. Rolling shall be done with a self-propelled roller weighing not less than eight tons to achieve ninety-five-percent compaction and shall continue until a firm, even surface true to the lines and grade is obtained.
In cases where multiple excavations are made in a street which would result in multiple patches, the Engineering Division at its discretion may require a continuous patch or overlay across the entire work zone.