[HISTORY: Adopted by the City Council of the City of Augusta
as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-21-2005 by Ord. No. 196; amended in its entirety 7-15-2010 by Ord. No. 106 (Ch.
6, Art. II, Div. 3, of the 1990 Code)]
A.
Title. This article shall be known and may be cited as the "City
of Augusta, Mineral Extraction Ordinance," and will be referred to
herein as "this article."
B.
Purpose. The purpose of this article is to put into law minimum removal
and reclamation standards, and municipal procedures intended to regulate
the removal, processing and storage of topsoil, loam, rock, flat rock,
sand, gravel, or other similar materials and associated uses within
the City of Augusta. These standards and procedures are intended to
protect the public health, safety, and general welfare, and to minimize
the adverse impact of extraction to citizens of the City, abutting
property owners, and wildlife and natural resources by, among other
things:
(1)
Preserving and protecting surface water and groundwater quality and
quantity for current and future use of the City.
(2)
Preserving the City's natural resources and property and their future
ability to be assets to the City.
(3)
Controlling the amount of pollution which can be discharged into
the City's environment.
[Amended 12-1-2011 by Ord. No. 166]
A.
If an applicant has complied with the notice of intent to apply for license requirements set forth in § 198-5, and the application shows active extraction areas exceeding the ten-acre limit referred to herein, a limited exemption is available to the owners of these pits.
(1)
They may submit a written request for an exemption from making reclamation
for the acreage that exceeded the ten-acre limit at the time this
article went into effect.
(2)
All reclamation requirements, excluding the reclamation plan and performance guarantee referenced in Subsection A(3) below, shall be deferred until the extraction site is deemed complete.
(3)
A reclamation plan and a performance guarantee (as outlined by DEP under State of Maine Performance Standards, Intent to Comply, § 14) shall be submitted to the City of Augusta (see § 198-9).
(4)
Any future expansion of the pit itself or expansion of permitted
existing uses would require Planning Board approval and will require
reclamation in the existing pit equal in size to the proposed expansion
area.
(5)
An applicant may also submit a written request for an exemption from
any of the performance standards it is unable to meet without undue
financial hardship. These performance standards may include, but are
not necessarily limited to: proximity of the active extraction area
to a boundary line or to a public right-of-way; pit road location
and/or buffer zone requirements of the road.
(7)
These requests will be reviewed and determined on a case-by-case
basis by the Planning Board.
B.
This article shall not apply to the following: (Note: Mineral extraction activities which are exempt from this article shall still require a conditional use permit under provisions of Chapter 300, Land Use, of the City Code, and must comply with other rules and regulations of the City.)
(1)
Mineral extraction activities that are located 300 feet or more from
an existing residential property line, but only if the activities
affect less than two acres of total active extraction area per parcel;
(2)
Storage or stockpiles of winter abrasives (sand or sand/salt mixes)
used for the maintenance of private or public roads and driveways
and parking lots. This applies to the stockpile or storage area itself
and not to any area;
(3)
Removal or filling of material incidental to construction, alteration
or repair of a structure, or in the landscaping incidental thereto;
(4)
Construction of farm and fire ponds and normal agricultural operations;
(5)
Removal of stone or rock walls or foundation walls; and
(6)
Stripping of topsoil (loam) which is not part of a mineral extraction
operation to a depth no greater than one foot, provided the area so
stripped is reseeded in the same growing season as removal.
[Amended 12-1-2011 by Ord. No. 166]
A.
Relationship to other City ordinances. Where there is a conflict
between the language contained in this article and any other City
ordinances, the stricter language shall apply for purposes of this
article.
B.
References to the City. All references in this article to "City,"
"the City of Augusta," and to any board, official or officer, unless
clearly defined otherwise, shall be construed to be references to
the City of Augusta, Maine, an incorporated municipality in the County
of Kennebec, State of Maine, and its municipal boards, officials and
officers.
C.
References to other documents. All references in this article to
any document, chapter, handbook, or other external reference shall
be construed to be references to said documents and their successor
documents, as they may be amended or replaced from time to time.
D.
ABANDONMENT
ACCESSORY USES
ACTIVE EXTRACTION AREA
AQUIFER
AVERAGE DAILY TRAFFIC (ADT)
BLASTING
BLASTING PLAN
BODY OF WATER
(1)
(2)
BORROW PIT
BUFFER
BUFFERYARD
CEO
COMMON SCHEME OF DEVELOPMENT
COMPLIANCE INSPECTION
DEEMED COMPLETE
DISPOSAL
EDGE OF FOOTPRINT
ENVIRONMENTALLY SENSITIVE AREAS
EXPANSION OF OPERATION
FLAT ROCK MINING
FOOTPRINT OF OPERATION
GROUNDWATER
GUARANTEE
HANDLING
IMMEDIATE FAMILY
INACTIVE
MAXIMUM SEASONAL HIGH GROUNDWATER LEVEL
MEASURABLE BLASTING DUST
MINERAL EXTRACTION ACTIVITY
MINERAL EXTRACTION OPERATION
MINERAL EXTRACTION SITE OR AREA
PHASING OF OPERATIONS
PIT
PREBLAST SURVEY
PROCESSING
PRODUCTION BLASTING
PROJECTIONS OF GROUNDWATER QUALITY
PROTECTED NATURAL RESOURCE
QUARRY
QUARRYING
RECLAIMED AREA
RECLAMATION
RECLAMATION AREA
RECLAMATION PLAN
RELATIVE
SETBACK
SETBACK FROM WATER
STOCKPILE(S)
STOP-WORK ORDER
SUBSTANTIAL DEVIATION
TOPSOIL
UNRECLAIMED AREA
WATER TABLE
Definitions. As used in this article, the following terms shall have
the meanings indicated:
Failure to make application for license renewal within one
year of license revocation or expiration.
Uses clearly incidental and subordinate to a principal use
and located on the same lot as the principal use. Such uses must be
clearly spelled out in the application and license. Accessory uses
may include but are not limited to snow dumps, screening of materials
and crushing of materials.
The pit itself, the actual hole in the ground, including
side slopes and adjoining areas with overburden removed, excluding
roads, structures, stockpiles, etc., which is being worked to produce
minerals and/or that is yet to be reclaimed.
An underground bed or stratum of earth, gravel or porous
stone that contains water.
The average number of vehicles per day that enter and exit
a premises or travel over a specific section of road.
The use of explosives to break up or otherwise aid in the
extraction or removal of rock or other consolidated natural formation.
A required written outline of all procedures and policies
regarding blasting where such activity is proposed to be used. Performance
standards for such plan are set forth in § 198-5B(8) of
this article.
Includes the following:
POND or LAKEAny inland impoundment, natural or man-made, which collects and stores surface water.
STREAM or RIVERA free-flowing drainage outlet, with a defined channel lacking terrestrial vegetation and flowing water for more than three months during the year.
A development undertaken for the primary purpose of excavating
sand, gravel or fill. This does not include any excavation for rock
or clay.
A natural, undisturbed area or belt of land that contains
vegetation. A buffer area may be larger than specified in this article;
includes, but is not limited to, earthen berms planted with vegetation.
Code Enforcement Officer.
The process whereby contiguous parcels with existing or proposed
mineral extraction operations where the applicant or property owner
has at least a thirty-percent share in ownership or where mineral
extraction operations owned by a relative (as defined herein) are
reviewed as a single license application.
An examination by the Code Enforcement Officer that shall
check for compliance of the operations with the conditions and requirements
of the license.
[Amended 2-17-2022 by Ord. No. 22-024]
That the material extracted sufficiently meets the section
and plan requirements outlined in the permit or license issued by
the Planning Board, or that the use has been abandoned for a period
of 24 months or more. For mineral extraction operations with an active
extraction area of 10 acres or more, 200 cubic yards of material shall
be processed or removed every two years, based on records maintained
by the owner of the operation, in order to avoid being considered
abandoned. For mineral extraction operations with an active extraction
area of less than 10 acres, 100 cubic yards of material shall be processed
or removed every two years, based on records maintained by the owner
of the operation, in order to avoid being considered abandoned.
The placing or storing of materials that are not going to
be used in any process or production in conjunction with the extraction
activity.
The outermost boundary of the footprint of operation as defined
herein.
Wetlands, swamps, wildlife habitat areas delineated by the Department of Inland Fisheries and Wildlife (IF&W), prime agricultural areas, areas with steep slopes, areas with poorly drained soils, and floodplain areas (subject to a one-hundred-year flood); also includes protected natural resources. Environmentally sensitive areas shall specifically include all areas within the resource protection district, as defined in Chapter 300, Land Use.
Excavation operations that exceed the approved footprint
of operation.
Extraction with the primary purpose of the removal of solid
rock strata using low-velocity blasting or mechanical means.
The uppermost and outermost continuous edge, or rim, or outline
(drawn on a plan and physically staked on the ground) around the approved
active extraction area(s), unreclaimed area(s) and stockpile(s), and
all land upon which stumps, spoil, or other solid waste will be or
has been deposited; and any storage area that will be or has been
used in connection with the development, except a natural buffer strip.
The footprint of operation shall be the footprint so identified on
a site plan of the license and/or approved by the Planning Board.
[Amended 2-17-2022 by Ord. No. 22-024]
The water beneath the surface of the ground, consisting largely
of surface water that has seeped down; the source of water in springs
and wells.
An irrevocable letter of credit issued by a financial institution
or a performance bond.
Any aggregate crushing, washing, screening, mixing or stockpiling
of sand, gravel, stone, rock, clay, or topsoil; to include any mining
of material.
The husband, wife or children of a specific individual.
Mineral extraction that has ceased for 12 consecutive months
prior to the passage of this article, in any areas where mining extraction
activity had previously occurred.
The upper level at which the groundwater table normally is
located during the season of the year when such levels are at their
highest. In order to determine such level, a test pit reviewed by
a soil analyst or groundwater data for a minimum of one year must
be gathered and analyzed. Adjustments may be made by the Planning
Board for extreme seasonal variations.
Dust from a quarry blast that is capable of being measured,
but does not require an actual measurement.
[Added 9-4-2014 by Ord.
No. 14-149]
Any operation where soil, topsoil, loam, sand, gravel, clay,
rock, peat, or other mined material is removed from its natural location
or where it is handled.
The site or parcel of land where a mineral extraction activity
is being, or proposed to be, undertaken.
All of the land area disturbed or otherwise developed for
the extraction, removal, handling, processing, or storage of sand,
gravel, clay, minerals, stone, rock, or topsoil; including any access
roads and cleared areas adjacent to a pit or excavated area, structures,
office building, parking lots and stockpiles.
A plan of completion of the operations in separate and distinct
sequences that have a complete beginning and ending for predetermined
areas. In the context of this article, all phases must be structured
so that they stand on their own, shall be inspected for completeness
at the end of each phase and have reclamation of area completed at
the end of each phase.
See "active extraction area."
Documentation, prior to the initiation of blasting, of the
condition of buildings, structures, wells or other infrastructure
and of protected natural resources, historic sites and unusual natural
areas.
Any washing, crushing, or similar processing of on-site material
that does not inherently change the nature of the product.
A blasting operation carried out on a regular basis for the
purpose of production of material.
An analysis of the potential changes to existing groundwater
quality by examining the processes, chemical by-products and outflow
of a proposed operation.
Wetlands, significant wildlife habitat, fragile mountain
areas, freshwater wetlands, bog, marsh, rivers, streams or brooks,
as the terms are defined in applicable City or state law.
A place where rock or large stone is excavated and/or extracted.
The excavation and/or extraction of rock or large stone from
a quarry.
Land within the footprint of operation that has already been
reclaimed.
The restoration of the footprint of operation to conditions
similar to what existed prior to the operation or that will be compatible
with what existed prior to the operation or which is prepared for
future development for a use permitted in the zoning district in which
it is located on the area of land affected by mineral extraction or
mining under a reclamation plan. This may include, but is not limited
to, grading and shaping of the land, the planting of forests, the
seeding of grasses, legumes, or crops for harvest, or the enhancement
of wildlife and aquatic resources.
Land within the footprint of the mineral extraction area
that was previously excavated or mined, and is now being prepared,
or available, for reclamation.
A plan which depicts how the project area will be reclaimed
after excavation is complete. Such a plan shall include final grading
and revegetation plans and conceptual redevelopment plans, if any,
of any given phase.
A spouse, parent, grandparent, brother, sister, child, aunt,
uncle, cousin, domestic cohabitant or grandchild related by blood,
marriage or adoption, or other individuals where the intent is to
circumvent this article.
The horizontal distance, in feet, from a lot line or referred
location to the nearest part of a structure or activity.
The horizontal distance, in feet, from the normal high water
mark to the nearest part of a structure or activity.
Area(s) where either man-made or natural materials are being
piled up temporarily, either undercover or exposed to the elements,
for future processing. These piles are only for materials that are
necessary for mineral extraction activities and associated uses which
have been approved by the license and/or Planning Board.
[Amended 2-17-2022 by Ord. No. 22-024]
An order from the City of Augusta to cease a specified activity.
Changes made to a specified plan that are materially at variance
with the original instructions of operation so as to constitute a
different plan for most intents and purposes.
The top layer of soil that is predominantly fertile and ordinarily
moved in tillage or the equivalent of such a layer in uncultivated
soils.
Land within the footprint of operations of the gravel pit
that has been excavated or mined and has not been reclaimed.
The upper surface of groundwater or that level below which
the soil is seasonally saturated with water.
A.
Authority. This article is enacted pursuant to the City's home rule
powers as provided for in Article VIII-A of the Constitution of the
State of Maine[1] and under the authority granted to the City of Augusta
by the statutes of the State of Maine, 30-A M.R.S.A. § 3001,
and pursuant to other applicable laws of the State of Maine.
[1]
Editor's Note: So in original; apparently should refer to
Article VIII, Part Second, Municipal Home Rule.
B.
Administration. The provisions of this article shall be administered
by the City of Augusta Planning Board and enforced by the City of
Augusta's Bureau of Code Enforcement.
C.
Effective date. This article became effective on March 5, 2007, after
adoption by majority vote of the City Council. Upon adoption, this
article, and any amendments thereto, shall supersede and replace,
in its entirety, the existing Mineral Extraction Regulations as set
forth in former § 5.1.12 of the City of Augusta's Land Use
Ordinance.[2]
D.
Mineral extraction license required. All parties proposing to continue a mineral extraction operation, expand an existing mineral extraction operation or propose the creation of a new mineral extraction operation must receive a mineral extraction license as set forth in §§ 198-5, 198-6 and 198-11 of this article, as applicable. License applications shall be filed under a common scheme of development.
E.
Types of mineral extraction activities prohibited. Any proposed mineral
extraction activity not specifically allowed in this article shall
be prohibited.
F.
Associated mineral extraction uses require prior approval. It is the intent of this article that a license granted hereunder does not imply permission to undertake any associated mineral extraction uses unless expressly and specifically approved in writing by the Augusta Planning Board. If any such associated mineral extraction uses, that have not been approved by the Planning Board as of June 1, 2010, would otherwise trigger major development review or minor development review as outlined in Chapter 300, Land Use, for any reason, including, but not limited to, disturbed area, impervious area, traffic generation, parking generation, or new floor area, the associated mineral extraction use shall be approved as a major or minor development, in addition to all other requirements of this article. Bituminous mix plants and ready-mix concrete plants that are associated uses for licensed mineral extraction sites shall require major development review in all cases. The fees, processes, and standards for major development review or minor development review shall apply. Associated mineral extraction activities consisting of bituminous mix plants and ready-mix concrete plants conceptually approved by the Planning Board per this article, with no specific details about the size, location, or impacts of the associated activity, shall require further, detailed Planning Board review and approval, as outlined above.
G.
Conflicting ordinances or regulations. This article shall not in
any way impair or remove the necessity for compliance with any other
applicable rule, ordinance, regulation, bylaw, permit, or provision
of law. Where this article imposes a greater restriction upon the
use of land, buildings, or structures, the provisions of this article
shall control. Where conflicts arise within this article, the stricter
provision or requirement shall prevail.
A.
Time frame.
(1)
All existing mineral extraction operations that wish to be licensed
must submit a notice of intent to apply for license form to the City
of Augusta Bureau of Planning no later than April 30, 2006. Operations
with an active mineral extraction area larger than two acres that
fail to submit a notice of intent to apply for license form will be
deemed to intend not to continue legal operation as a mineral extraction
activity in Augusta.
(2)
Upon failure of an existing mineral extraction operation to apply
for and receive an existing mineral extraction license, the operation
will no longer be an allowed mineral extraction operation and will
be in noncompliance with this article. Such operations will not be
allowed to continue to operate until and unless they meet the requirements
for a new mineral extraction license.
B.
Notice submissions requirements. The application required for existing mineral extraction operations in Subsection A above shall consist of at least the following submissions:
(1)
Name, address, telephone number of the owner and operator or both,
if different.
(2)
A copy of a deed, lease, option or other evidence of title, right
or interest to the subject property and the City of Augusta's Tax
Map and lot numbers.
(3)
A copy of all existing City and state permits.
(4)
A sketch plan of the property boundaries, including all land contiguous
to the mineral extraction site owned, leased or controlled by the
owner or operator of the operation, the footprint of operations as
of the effective date of this article, including the active extraction
area, all stockpiles and areas, all handling areas with crushers,
screens, washers, all areas with overburden removed, all reclaimed
and unreclaimed areas, all structures, all associated activities and
all wells, roads, water bodies and wetlands within or abutting said
boundaries; all structures, residences, wells and roads and footprint
of operations of other mineral extraction activities on the properties
abutting the land of the owner operator. This sketch must be to scale
and be prepared and certified by a licensed Maine land surveyor and
must satisfy at least the standards for a property sketch or Class
C survey. It may but is not required to be a standard boundary survey.
It shall be to a scale of no less than one inch to 50 feet.
(5)
Additional documentation that may be submitted includes, but is not
limited to, aerial photographs, ground photographs, and volume-of-extraction
reports.
(6)
A sketch plan prepared and certified by a licensed Maine land surveyor
showing either the reclaimed cross sections or topography of the site
upon completion.
C.
Performance standards for existing mineral extraction activities.
[Amended 9-4-2014 by Ord.
No. 14-149]
(1)
(2)
All mineral extraction operations must come into compliance with
said standards by September 30, 2014, or said license shall be revoked
by the Planning Board, unless for good cause the Planning Board decides
that a one-time extension of no more than six months shall be necessary
to comply with any performance standards. This compliance deadline
does not modify the existing relicensing schedule.
D.
Mineral extraction licenses expiring five years from the date of
issuance shall be issued to all existing mineral extraction applicants
who fully comply with the notice requirements.
E.
A mineral extraction license issued to an existing mineral extraction operator will include the one-time right to expand the active mineral extraction area by up to three acres. The expansion area must be clearly shown on the application. As a condition to expanding up to three acres, the licensee shall be required to meet all reclamation requirements for a portion of the active extraction area equal in size to the proposed expansion. This expansion area may be done in phases. All reclamation must be completed within one year of beginning each phase of the expansion of the mineral extraction area. This one-time expansion must meet all buffering and setback requirements except for the setback in § 198-8B(4)(b).
The creation of a new mineral extraction activity or expansion
of any existing licensed mineral extraction activity within the City
of Augusta shall require a new or amended mineral extraction license
by the City, as applicable. An applicant shall apply for new or amended
mineral extraction license to the City of Augusta Planning Board.
A.
Preapplication meeting. The City of Augusta Planning Bureau shall
hold a preapplication meeting with all applicants proposing to expand
an existing operation or proposing to create a new operation. At that
meeting, the size, scale, nature of the operation, and other administrative
details shall be specified.
B.
NOTE
Application. Prior to the establishment of a new mineral extraction activity or an expansion of an existing mineral extraction activity, an applicant shall apply to the City of Augusta for an approved new or amended mineral extraction license as required in § 198-7, General requirements for license applications, determinations, expirations, transfers and appeals, below.
Applications that propose to expand an existing mineral extraction footprint, which must be licensed under the requirements of this article, must show the "existing conditions" of all items that are required in § 198-5; and identify all "proposed conditions" where applicable on said plan.
[Amended 12-1-2011 by Ord. No. 166]
A.
Application procedure.
(1)
Applications for an existing operation, amended license, renewal
license which includes blasting, or new mineral extraction license
shall be made to the City of Augusta Planning Board. Renewals of licenses
which do not include blasting shall be made to the Licensing Board.
Applications shall include all the information required below, as
applicable.
[Amended 2-17-2022 by Ord. No. 22-024]
(3)
All checks shall be made payable to the City of Augusta, Maine.
(4)
Additional fees may be required by the City of Augusta Planning Board
to cover the cost of hiring technical expertise to review any portion
of an applicant's application submittal.
(5)
All applications shall be signed by the person proposing to operate
the mineral extraction activity. A signature on an application shall
constitute a representation that the contents of an application are
true and correct. Any material misrepresentation found to exist in
the application shall be grounds for denying the application.
B.
Application requirements. The application requirements for a new or expanded mineral extraction license shall be the same as set forth in § 198-5 as it applies to notice of intent to apply for a license. The Planning Board may require such additional information as it deems necessary to consider the application.
D.
Planning Board decision on the mineral extraction license application.
(1)
The criteria for approving a new or expanded mineral extraction license shall include criteria identified in Chapter 300, Land Use, § 300-603E; meeting or showing that the applicant can meet all the applicable performance standards identified in § 198-8 herein; and demonstration of an acceptable compliance inspection done within 60 days of application submission.
(2)
The Planning Board shall, within 30 days of the completion of the
public hearing process, or within such other time limit as may be
mutually agreed to by said Planning Board and the applicant, issue
a decision denying or granting approval of the proposed mineral extraction
activity or granting approval on such terms or conditions as it may
deem advisable to satisfy the criteria contained in this article.
In all instances, the burden of proof shall be upon the applicant.
The Planning Board shall make a written finding regarding the applicant's
financial and technical ability to satisfy the criteria contained
in this article and conditions of any permit.
(3)
Upon approval of the mineral extraction activity, a majority of the
Board shall sign all copies of the final site plan. One copy shall
be retained by the applicant, one copy shall be retained by the Planning
Board, one copy shall be filed with the Tax Assessor, and one copy
shall be filed with the Code Enforcement Officer. The Planning Board
shall maintain a permanent record of its actions and decisions on
the mineral extraction applications.
(4)
Approval by the Planning Board of a mineral extraction activity plan
shall not be deemed to constitute or be evidence of any legal acceptance
by the City of Augusta, Maine, of any road, easement, or other open
space shown on such plan.
E.
Operation conditions and limitations. Before any mineral extraction
activity begins, and as a condition of the license, the applicant
shall apply for and receive all applicable permits as may be required
by City, state or federal regulations, laws or divisions regulating
such developments. Any violation of other permits necessary for operation
and noted in the permit shall be considered a violation of this article.
G.
Expiration of approval. Mineral extraction licenses shall be null
and void two years from the date of issuance unless the applicant
has substantially commenced the mineral extraction activity.
H.
Expert witnesses and opinions.
(1)
In the event that the Planning Board requires expert opinions, advice
or testimony during the course of reviewing the application, it will
use due diligence to obtain and utilize free services from governmental
or nonprofit sources. Should the Planning Board be unable to obtain
and utilize such services, it shall require the applicant to pay for
such services, after giving notice to the applicant of the name of
the expert, the area of qualification of the expert, and the purpose
for which the expert is required, and the approximate cost of the
expert. The applicant shall be provided with an opportunity to meet
with the Planning Board to arrange a schedule for payment of the costs.
(2)
The applicant shall have the right to request a public hearing before
the Appeals Board to determine if such experts required by the Planning
Board are necessary to making a determination of any issue properly
before the Planning Board and if the approximate costs of the expert
are reasonable. It will be the applicant's burden to prove that the
requested expert is unnecessary or that the cost is excessive. The
applicant shall request the hearing within 10 days of the meeting,
or such time as is agreed to by the Planning Board and the applicant.
I.
Change of mineral extraction operation ownership. Within 30 days
of the date of the transfer, by sale or otherwise, of land upon which
a mineral extraction operation is situated, the new owner or owners
shall file with the City Planner notice of the transfer and a statement
of agreement and capacity to comply with the City mineral extraction
license. Failure to comply with this requirement shall be a violation
of this article and may subject the violator to any penalty, or combination
of penalties, that may be imposed under this article, including voiding
the license.
J.
Appeals and variances.
(2)
Variances.
(a)
The Planning Board may grant a variance from any portion of § 198-8, Design and performance standards, except as limited by § 198-2A(6). No variance may be granted without meeting all of the following criteria:
[1]
Written request by the applicant demonstrating that the standard(s)
from which a variance is requested would create a financial and/or
operational hardship. No variance request for the expansion of the
active excavation area size shall be granted unless the applicant
demonstrates that reclamation or partial reclamation poses a financial
and/or operational hardship.
[a]
A financial hardship is defined as the inability
of the property owner to make a reasonable profit or rate of return
considering all relevant factors. The applicant will be required to
provide financial records supporting the request. The hardship shall
not be the result of action taken by the applicant or prior owner.
[b]
An operational hardship is defined as an inability
to comply with the standard(s) from which a variance is requested
because of specific geographical or geological features of the site,
including the location of different types of materials to be extracted.
The hardship shall not be the result of action taken by the applicant
or prior owner; and
[2]
Written request by the applicant demonstrating that the requested
variance does not unreasonably adversely affect off-site uses. The
Planning Board may review any potential adverse impacts on off-site
uses, including but not limited to the impact of noise, dust, air
and ground vibration, traffic, and hours of operation; and
[3]
Written request by the applicant demonstrating that the requested
variance does not unreasonably adversely affect the health, safety,
and general welfare of the public and abutting property owners.
(b)
To the extent that the request is for a variance to the size of the active extraction area, the request shall be no larger than is necessary to accommodate the hardship identified in Subsection J(2)(a)[1]. The Planning Board shall have the authority to limit, reduce, or modify the requested variance in order to ensure that the minimum variance necessary is issued to the applicant, if all other criteria in this subsection are met.
[Amended 12-1-2011 by Ord. No. 166]
A.
General requirements for all operations.
(1)
Mineral extraction activities and specifically approved associated mineral extraction uses shall conform to all applicable state laws and local ordinances and regulations. Where the provisions of this section conflict with specific provisions of Chapter 300, Land Use, the provisions of these standards shall prevail. It is anticipated that the application will be reviewed concurrently with this article and the requirements of Chapter 300, Land Use.
(2)
This section details the specific application requirements for the
submissions required in this article.
(3)
The license holder of a mineral extraction activity shall be responsible,
both jointly and severally, for ensuring the maintenance of all infrastructure,
structures and their sites.
(4)
The Planning Board or Licensing Board shall consider the financial
capacity, technical ability, and prior performance of the applicant
to conduct all proposed and approved activities in accordance with
these performance standards.
[Amended 2-17-2022 by Ord. No. 22-024]
(5)
The Planning Board or Licensing Board may approve the license application
only if the applicant or agent is in compliance with all other City
of Augusta and State of Maine permits for mineral extraction activity.
[Amended 2-17-2022 by Ord. No. 22-024]
(6)
In all cases, the applicant, and the licensee once approved, shall
have the burden of proof that all requirements, standards, and conditions
of this article and subsequent approval will be or are being met.
(7)
A copy of the license must be displayed on site at all times.
(8)
At no point shall the footprint of the active extraction area exceed
10 acres, and at no point shall the footprint of operation exceed
a total of 15 acres.
(9)
Bituminous mix plants, also known as "asphalt plants," shall not
be sited within 2,500 feet of an existing residential property. Measurement
shall be the shortest distance possible from the plant to the nearest
point of the residential property line.
B.
Performance standards. All of the following standards, unless otherwise
stated, pertain to those applicants applying for and receiving a new
or amended mineral extraction license.
(1)
Erosion, sedimentation control and stormwater management.
(a)
General.
[1]
Sediment may not leave the parcel or enter a protected natural
resource.
[2]
Topsoil stockpile must be stabilized and inspected as specified in Subsection B(2)(a)[1] below.
(b)
Internally drained projects.
[1]
Land shall be restored and stabilized according to the reclamation
plan.
[2]
At all times, the extraction footprint shall be operated in
a manner that it will safely hold a volume of precipitation at least
equal to that which may be expected in the area from the twenty-five-year,
twenty-four-hour storm event for the region based on the U.S.D.A.
Natural Resources Conservation Service.
(c)
Externally drained projects.
[1]
If surface water flows out of and away from the proposed site
during and after the site is excavated, the following should be provided
to assure proper erosion control and prevent siltation of downstream
waters. Temporary erosion control measures shall be included in the
project design, such as hay bale barriers, silt fencing, and riprap.
Plans shall show the location and installation details and include
a description of the timing of installation, inspection and maintenance
of erosion control measures.
[3]
Sedimentation pond location and design, if any, shall be designed
to the twenty-five-year storm event and based on the U.S.D.A. Natural
Resources Conservation Service methodology. The location and construction
details of the pond shall be shown on the site plans.
(2)
Reclamation and reclamation plan required.
(a)
The affected land must be restored to a physical state that
is similar to that which existed prior to any development, or encourages
the productive use of the land, including development for uses permitted
in the zoning district in which it is located. A reclamation plan
is required to be submitted with all license applications discussing
and depicting the following:
[1]
Topsoil stockpiling. Topsoil which is stripped or removed must
be stockpiled in sufficient quantity for use in reclaiming disturbed
land, unless it is demonstrated to the Planning Board that it is not
needed for reclamation purposes. Topsoil stockpiles must be seeded,
mulched, or otherwise stabilized. At least four inches of topsoil
will be used for final cover.
[2]
Regrading. With the exception of where a section of excavated
earth has exposed bedrock or ledge, upon completion of the excavation,
the side slopes must be regraded to a slope no steeper than 2.5 horizontal
to one vertical.
[3]
Vegetative cover. Vegetative cover must be established on all
land being reclaimed except for exposed bedrock and/or ledge face.
Topsoil must be placed, seeded, and mulched within 30 days of final
grading if it is within a current growing season or within 30 days
of the start of the next growing season.
[a]
Vegetative material used in reclamation must consist
of a mixture of grasses, legumes, herbaceous and woody plants. Plant
material must be planted during the first growing season following
the reclamation phase. Selection and use of vegetative cover must
take into account soil and site characteristics such as drainage,
pH, nutrient availability, and climate to ensure permanent growth.
[4]
Structures and roads. All structures and access, haul, or other
support roads must be reclaimed once no longer used, unless reserved
for future productive use of the land, as described in the reclamation
plan.
[5]
Phased reclamation. The site must be reclaimed in phases. For
guidance in planning and implementation of reclamation, see the most
recent edition of the Maine Erosion and Sediment Control Handbook
for Construction: Best Management Practices (Cumberland Cty. SWCD;
3/1991) for Pit Reclamation.
[6]
Time line.
[a]
A time line for reclamation shall be included with the reclamation plan. As set forth in Subsection B(2)(a)[5] above, at no time shall the active extraction area exceed 10 acres at one time.
[b]
All reclamation shall begin within six months of
completion of phasing, the completion of the project or abandonment.
The site shall be inspected when the regrading and planting is completed
and again at one year to ensure compliance with the reclamation plan.
[c]
A certification of completion of reclamation shall
be issued by the Code Enforcement Officer only after the final inspection
is made and is passed as stated immediately above.
(b)
Standard reclamation shall commence in accordance with the time
line and phasing approved by the Planning Board. Standard performance
guarantee requirements apply.
(c)
Concurrent reclamation is highly encouraged by the Planning
Board. Reduced performance guarantee requirements are allowed. For
concurrent reclamation, the following standards shall apply:
[1]
The operator shall remove material in layers not exceeding 30
feet in depth, starting from the limit of excavation.
[2]
The slope shall be constructed progressively; maximum open slope
shall be 30 feet high by 400 feet in length at limit of each work
area. The slope shall be completed in each work area prior to removing
additional layers.
[3]
Concurrent reclamation must be approved by the Planning Board
in the applicant's reclamation plan.
(3)
Petroleum usage.
(a)
Spill prevention, control, and countermeasures plan shall be
required for all projects.
(b)
Petroleum products storage.
[1]
If any petroleum products or other materials with potential
to contaminate groundwater are to be stored on the site, a spill prevention
control and countermeasures (SPCC) plan shall be submitted. A SPCC
plan shall be developed in accordance with DEP regulations, § 5A
of Chapter 378, Performance Standards for the Storage of Petroleum
Products (CMR 378), and shall be submitted with the application and
kept with the permit in the City's records.
[2]
The use of underground tanks is strictly prohibited.
[3]
If on-site refueling is necessary for fixed equipment, such
as crushers, concrete batch facilities, and hot mix asphalt facilities,
a specific refueling area must be designated and located on impermeable
material such as synthetic liners, clay or till.
[4]
All other performance standards of 378 CMR § 5A shall
apply.
(c)
Machinery maintenance.
[1]
Crankcase oil, hydraulic fluids, and similar products shall
not be changed, stored or disposed of within the excavation area,
unless specifically covered in the SPCC plan.
[2]
Routine maintenance operations, such as refueling or oil changes,
may be allowed for fixed equipment such as screeners, crushers and
wash facilities, if allowed in the district in which the operation
will be located, provided that a secondary containment system in accordance
with the SPCC plan, adequate to contain 110% of the full contents
of said equipment, is installed.
[3]
All other equipment maintenance regulations of 378 CMR § 5E
shall apply.
(d)
Any discharge or leak of petroleum product over one gallon shall
be immediately reported to the Code Enforcement Officer and a report
kept with the permit in the City's records. All discharges or leaks
of any size shall be cleaned up promptly according to the spill containment
and cleanup provisions of 378 CMR § 5H.
(e)
A copy of the spill prevention control and countermeasures plan
shall be kept available on site at all times.
(f)
The applicant shall demonstrate to the Planning Board's satisfaction
the applicant's ability to implement the SPCC plan.
(4)
Buffers, bufferyards, and setbacks. Buffers, bufferyards, and setbacks
shall be as follows and shown as such on the site plan:
(a)
Property boundaries.
[1]
To minimize impacts to abutting properties, a setback of 100
feet shall be maintained from the edge of the footprint of the pit/active
extraction area to all property boundaries. This setback may be reduced
to 25 feet with written permission of an abutting landowner, provided
that:
[2]
This setback may be eliminated between abutting properties,
provided that:
(b)
Existing structures. A setback of 300 feet from the edge of
the footprint of the working pit to the closest edge of a residence
existing as of the date of the enactment of this article shall be
maintained with all projects. This setback may be reduced with documented
proof of written permission of the owner of the structure, but not
be less than 150 feet from the property line.
(c)
Protected natural resources. The following shall apply:
[1]
Unless authorized pursuant to the Natural Resources Protection
Act, 38 M.R.S.A. § 480-C, no part of any extraction operation,
including drainage and runoff control features, shall be permitted
within 100 feet of the normal high-water line of a great pond classified
GPA (as defined) or a river flowing to a great pond classified GPA,
and within 75 feet of the normal high-water line of any other water
body, tributary stream, or the upland edge of a wetland.
[2]
The applicant must provide a sufficient benchmark on the property
to indicate this setback.
(d)
Public roads. A setback of 100 feet, with natural vegetative buffer, shall be maintained from the closest edge of the shoulder of a public road to the edge of the footprint of the pit. A fifty-foot-wide undisturbed natural vegetated buffer area, closest to any private road or right-of-way, shall be maintained, except for any access road entrance. Reduction of the fifty-foot buffer from a private road or right-of-way is allowed with proof of written permission of adjacent property owners, and approval by the Planning Board. A mineral extraction licensee granted a license under § 198-5, Licensing of existing mineral extraction operation, shall comply with this subsection to the greatest extent possible.
[Amended 9-4-2014 by Ord.
No. 14-149]
(e)
Bufferyard requirements.
[1]
All buffers must be preserved in their natural vegetative state
as existed six months prior to an application for a new gravel pit,
or for an expansion to an existing gravel pit, in the natural vegetative
state that existed at time of initial licensing by the City.
[2]
Planted bufferyards are required along the applicant's property lines for residences located within 300 feet of the mineral extraction site if it is a residence existing as of the date of enactment of this article which will conform to Bufferyard Requirement D as set forth in Chapter 300, Land Use, § 300-502.
[3]
In the event that a buffer in its natural vegetative condition does not conform to the level of vegetative cover required in the bufferyard standards of Chapter 300, Land Use, then the Planning Board will cause applicant to conform with said standard.
[4]
The Planning Board may require, as a condition of approval,
the applicant to take specific actions to ensure the effectiveness
of any buffers or bufferyards required above, including, but not limited
to, the planting of trees and/or shrubs, placement of solid fences
or creation of berms when the natural existing vegetation does not
provide a sufficient visual screen.
[5]
The applicant may elect to increase the width of the natural
buffer area in order to achieve an adequate visual screen.
[6]
The visual screening requirement for the buffers is not a complete visual barrier, except for Subsection B(4)(e)[2] above. To be adequate, the screening must provide a substantial visual barrier so that the active extraction area is not clearly, or unobstructively, visible from an abutting property or public road and by providing a continuous barrier which obstructs the view of the active extraction area by at least 80% from all locations 150 feet from the active extraction area boundary from abutting properties unless the abutting property also is the location of a mineral extraction activity.
(5)
Pit haul road design, circulation and traffic. On-site circulation,
parking, and traffic standards shall meet the City of Augusta technical
standards. Pit haul roads shall meet the following requirements:
(b)
Shall be set back at least 50 feet from any nonresidential property
line.
(c)
Shall be buffered with Bufferyard B plantings on the side(s)
closest to residential dwellings wherever the road is within 300 feet
of an existing residence unless the distance is reduced in writing
by the owner of the residence to no less than 100 feet.
(d)
Shall only be permitted to intersect with collector or arterial
roads in Augusta. Connection to residential streets shall be prohibited
unless a collector road or arterial road is more than 1,000 feet away
from the mineral extraction area and/or the owner does not have legal
access. If a municipal access road to a municipal mineral extraction
area is located within 1,000 feet of the property boundary, it must
be used as access rather than a residential street.
(e)
Shall have a maximum grade of 3% for the first 75 feet starting
from the collector or arterial road.
(f)
Shall meet sight distance requirements identified in the City
of Augusta technical standards.
(g)
Shall be required to have weekly applications of calcium chloride
or acceptable equivalent for any unpaved portions if dust levels are
determined by the CEO to be a nuisance.
(6)
Groundwater impacts. The following requirements apply:
(a)
Groundwater buffer.
[1]
To provide an adequate buffer for groundwater and allow for
filtration of impurities from surface water, extraction shall not
be any closer than five feet above the seasonal high water level.
[2]
The applicant shall establish a sufficient benchmark on the
property to verify the location of the seasonal high water level.
[3]
At least one test pit or monitoring well must be established
on each five acres of unreclaimed land.
(b)
Water supply setback.
[1]
A separation of 200 feet must be maintained between the edge
of footprint of operation and any currently in-use preexisting private
drinking water supply that is point-driven or is a dug well. This
setback requirement does not apply when the well belongs to the owner
of the excavation site.
[2]
A separation of 100 feet must be maintained between any active
excavation area and any private drinking water well that is drilled
into saturated bedrock prior to the mineral extraction activity.
[3]
A setback of 1,000 feet must be maintained between the edge
of the active extraction area and any well or spring which qualifies
as a public drinking water supply that was in use prior to the effective
date of this article.
[4]
The Planning Board shall require larger buffers from water supplies
if it finds that a hazard is shown to exist due to the mineral extraction
activity by a hydrogeologic study performed by a licensed hydrogeologist.
The hydrogeologic study will be paid for by the licensee if required
by the Planning Board.
(c)
Excavation below the seasonal high water table of an area previously
designated for potential use as a public drinking water source by
a municipality or private water company is prohibited. If the yield
of groundwater flow to protected waters or wetlands is not adversely
affected, the DEP may grant a variance allowing excavation below the
seasonal high water table of a mapped significant sand and gravel
aquifer, or primary sand and gravel recharge area, or an unconsolidated
deposit in other locations. A copy of the DEP variance approval must
be on file with the City prior to the start of this excavation.
(d)
In the event of excavation below the seasonal high water table,
the operator of a mining activity that affects a public drinking water
source or a private drinking water supply by excavation activities
causing contamination, interruption or diminution must restore or
replace the affected water supply with an alternate source of water,
adequate in quantity and quality for the purpose served by the supply.
This subsection is not intended to replace any independent action
that a person whose water supply is affected by a mining activity
may have.
(e)
In the event of excavation below the seasonal high water table,
a separation of 300 feet must be maintained between the limit of excavation
and any pre-development private drinking water supply, and a separation
of 1,000 feet must be maintained between the limit of excavation and
any public drinking water source or area previously designated for
potential use as a public drinking water source by a municipality
or private water company. These separation distance requirements do
not apply when the private water supply belongs to the owner of the
excavation site.
(f)
The DEP may grant a variance allowing excavation between two
feet and five feet of the seasonal high water table. A copy of the
DEP variance approval must be on file with the City prior to the start
of this excavation.
(g)
An active mineral extraction operation existing on the effective
date of this article and for which an application to be licensed has
been submitted may not further excavate in areas where gravel has
been extracted to a level less than five feet above, at or below the
seasonal high water table unless a variance has been granted by DEP
and a copy of the variance is on file with the City.
[1]
The owner or operator will not be required to elevate the pit
floor to five feet or more above the seasonal high water table as
a condition of operation.
[2]
The owner or operator may reclaim as a pond that area of the
pit on which gravel has been extracted to a level at or below the
seasonal high water table.
(h)
Water use.
[1]
A mineral extraction activity must not withdraw more than 15,000
gallons of groundwater per day, unless a hydrogeologic study is submitted
by a hydrogeologist that determines this will not represent an environmental
hazard or threaten drinking water supplies.
[2]
Any water that is discharged from the site shall be monitored
for sediment, pH and other contaminants to ensure the discharge shall
not adversely affect surface water quality.
[a]
Standards for acceptable groundwater impacts.
[i]
Projections of groundwater quality shall be based
on the assumption of drought conditions (assuming 60% of annual average
precipitation).
[ii]
No mineral extraction activity shall increase
any contaminant concentration in the groundwater to more than the
Maine Drinking Water Standards for private groundwater wells.
[iii]
If preexisting groundwater contains contaminants
in excess of the primary standards, and the mineral extraction activity
is to be served by on-site groundwater supplies, the applicant shall
demonstrate how water quality will be improved or treated, if necessary.
(8)
Blasting requirements for all. Normal blasting is limited to the hours between 11:00 a.m. and 3:00 p.m. Emergency blasting for misfires shall be allowed after the 3:00 p.m. cutoff time, provided that the City and abutters are notified prior to detonation. For mineral extraction activities, the requirements and standards for blasting shall minimally be the same as those identified in the blasting subsection of 38 M.R.S.A. § 490-Z. All blasting shall also comply with Chapter 130, Blasting, of the City Code.
[Amended 9-4-2014 by Ord.
No. 14-149]
(9)
Hours and duration of operations.
(a)
With the exception of approved snow dumping operations, no extraction
or associated activities shall be allowed on Sundays or the following
holidays: New Year's Day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving and Christmas.
(b)
With the exception of approved snow dumping operations, extraction
operations shall only be conducted between the hours of 6:00 a.m.
and 8:00 p.m. during Daylight Savings Time, and 6:00 a.m. and 7:00
p.m. during Eastern Standard Time.
[Amended 9-4-2014 by Ord.
No. 14-149]
(c)
Emergencies. On occasion there may be need for emergency operations
outside the approved hours. Sudden emergencies could be, but are not
limited to, public road repairs, sanitary and/or water system repairs,
flood repairs, etc. Emergency operations shall be approved by either
the Director of Public Works, the City Engineer, or the City Manager.
(10)
Dust.
(a)
Dust generated by mineral extraction activities, including dust associated
with traffic to and from a mineral extraction activity, must be controlled
by sweeping, paving, watering or other best management practices for
control of fugitive emissions. Dust control methods may include calcium
chloride as long as the manufacturer's labeling guidelines are followed.
(b)
Blasting dust. Dust generated by blasting shall be controlled
on site by using best management practices to control fugitive dust
from entering a residential property. Any perceptible and measurable
dust deposited off the property where the blast occurs, and onto a
residential property, shall be considered a violation.
[Added 9-4-2014 by Ord.
No. 14-149]
(11)
Solid waste. Solid waste, including stumps, wood waste and land-clearing
debris generated on the affected land, must be disposed of in accordance
with applicable local and state laws. Stump grinding for mulch or
other use is an acceptable form of disposal.
[Amended 9-4-2014 by Ord.
No. 14-149]
(12)
Stockpiles. Stockpiles of materials, as defined, may be no taller
than 30 feet above the grade level surrounding the outer edge of the
active extraction area and, if located outside of the area of extraction,
must be screened from all public ways within 200 feet of the stockpiles
and existing residences within 300 feet of the stockpiles.
(13)
Clear cutting. In setback and buffer areas, no natural vegetation,
including trees, shall be removed.
(14)
Existing nonconforming buffers and setbacks. The owners and/or operators of an existing mineral extraction operation on the effective date of this article who have filed the notice of intent to apply for license under § 198-2 and receive an existing mineral extraction license under § 198-5 shall not be required to reestablish and recreate buffers, bufferyards, extraction limits and setbacks to meet the requirements of § 198-8B(4) through (6), (12) and (14) in those areas of the site where the footprint of operations documented in the sketch plan shows that the site is not in conformance with the distance and size requirements of § 198-8. The Planning Board shall require buffers in conformance with this article unless the licensee demonstrates that it cannot comply without a substantial hardship to extraction operations, in which case the Planning Board may reduce or eliminate buffer requirements as appropriate on a site-specific basis. The owner and/or operator shall not increase the nonconformity.
A.
Types of guarantees.
(1)
With
submittal of an application for a mineral extraction license where
the existing or proposed footprint of operations exceeds 10 acres,
the following performance guarantees for an amount adequate to cover
the total costs of all required reclamation, taking into account the
time-span of the phasing, or reclamation schedule and the inflation
rate for costs will be required.
(a)
Either a certified check payable to the City or a savings account
or certificate of deposit naming the City as owner, for the establishment
of an escrow account; or
(b)
A performance bond payable to the City issued by a surety company
approved by the City Manager or his/her designee.
(c)
An irrevocable letter of credit from a financial institution
establishing funding for the construction or reclamation of the mineral
extraction activity, from which the City may draw if reclamation is
inadequate, approved by the City Manager or his/her designee. The
conditions and amount of the performance guarantee shall be determined
by the Planning Board based on the reclamation likely to be necessary,
the reclamation schedule, and reclamation cost estimates, and with
the advice of one or more of the following: the City Engineer, a certified
civil engineer, and/or the City Attorney, with expenses paid for by
the applicant.
(2)
The Planning Board may waive the bond requirement if it determines
that adequate security has been provided to the satisfaction of the
Maine Department of Environmental Protection.
B.
Contents of guarantee. The performance guarantee shall contain a
reclamation schedule, cost estimates for each major phase of reclamation,
taking into account inflation, provisions for inspections of each
phase of reclamation, provisions for the release of part or all of
the performance guarantee to the permit holder, and a date after which
the permit holder will be in default and the City shall have access
to the funds to finish reclamation.
C.
Escrow account. A cash contribution to the establishment of an escrow
account shall be made by either a certified check made out to the
municipality, the direct deposit into a savings account, or the purchase
of a certificate of deposit. For any account opened by the permit
holder, the municipality shall be named as owner or co-owner, and
the consent of the City shall be required for a withdrawal. Any interest
earned on the escrow account shall be returned to the developer unless
the municipality has found it necessary to draw on the account, in
which case the interest earned shall be proportionately divided between
the amount returned to the developer and the amount withdrawn to complete
the required improvements.
D.
Performance bond. A performance bond shall detail the conditions
of the bond, the method for release of the entire bond or portions
of the bond to the City, and the procedures for collection by the
City. The bond documents shall specifically reference the mineral
extraction activity for which approval is sought. The City will accept
as equivalent a performance bond that is held by the state if it meets
the requirements of the City.
E.
Letter of credit. An irrevocable letter of credit from a bank or
other lending institution shall indicate that funds have been set
aside for the reclamation of the mineral extraction activity and may
not be used for any other project or loan.
F.
Phasing of development. The Planning Board may approve phased performance
guarantees when a mineral extraction reclamation activity is approved
in separate and distinct phases.
G.
Performance guarantee review. Any performance bond or proof of financial
capacity shall be reviewed no later than 30 days before the expiration
of the guarantee, and adjusted if necessary. The applicant may also
request adjustments in the guarantee.
H.
Reduction of performance guarantee with concurrent reclamation. The
Planning Board may reduce the amount of the required performance guarantee
if the applicant/operator can document for the Board its plans and
timeframes to reclaim land as an ongoing part of its operation. Should
the applicant fail to abide by such a plan approved by the Board,
the Planning Board shall require the CEO to issue a stop-work order
to the operator until such time as the operator provides a satisfactory
performance guarantee to the Planning Board to cover the full amount
of reclamation.
I.
Release of guarantee. Prior to the release of any part of the performance
guarantee, the Planning Board shall determine, to its satisfaction,
that the reclamation meets or exceeds the design requirements for
the portion of the reclamation for which the release is requested.
The Planning Board's determination shall in part be based upon a certification
of compliance, provided by the permit holder, issued by a licensed
civil engineer and/or adequate assurances that compliance has been
achieved from whatever governmental agencies and departments other
than the City that may be involved.
J.
Default. If, upon inspection, the CEO or other inspecting official
finds that any of the required reclamation has not been performed
in accordance with the approved plans and specifications, he shall
so report in writing to the Planning Board, the permit holder and
guarantor. The permit holder shall have 30 days, unless otherwise
specified by the CEO, to remedy any insufficiency noted. Thereafter,
the CEO shall take any steps necessary to enforce the guarantee and
remedy the insufficiencies.
K.
Improvement guarantees. Performance guarantees may be required for
all off-site improvements required by this article, when the Planning
Board finds that the scale of the improvements warrants.
A.
Compliance inspection.
(2)
The compliance inspection fee is due no later than the day of the
compliance inspection. Failure to pay the fee shall result in an automatic
finding of noncompliance.
(3)
The compliance inspection shall be conducted by the CEO within 60
days of license renewal.
[Amended 2-17-2022 by Ord. No. 22-024]
(a)
The CEO shall issue a letter of compliance, provided he determines that the license holder has not violated the ordinance nor deviated from an approved plan under its mineral extraction license. If the CEO determines that the license holder has violated the ordinance or substantially deviated from the approved site plan under its mineral extraction license, the CEO shall issue a letter of noncompliance. Both the letter of compliance and/or letter of noncompliance will be provided to the Planning Board, the City Planner, and the license holder. The CEO shall, consistent with Subsection F(2) of this section, issue an immediate stop-work order for a specific violation, except for remedial action, until such time as compliance is achieved.
(b)
The CEO shall thereafter reinspect the site to determine if
compliance has been achieved. If he determines compliance has been
achieved, he shall issue a letter of compliance, as above. If he determines
that compliance has not been achieved, he shall issue a second letter
of noncompliance.
B.
Reclamation certification. Upon completion of reclamation or a reclamation
phase, a written certification signed by a professional engineer registered
in the State of Maine shall be submitted to the Chair of the Planning
Board at the expense of the applicant, certifying that the reclamation
is in compliance with the approved plans.
C.
Revocation.
(1)
The Planning Board, after any person has received a second letter of noncompliance or upon issuance of a stop-work order by the CEO, and upon written request made by the license holder or the CEO, shall provide an opportunity for public hearing in accordance with Chapter 300, Land Use, § 300-603C, within 30 days of receipt of the written request. The public hearing shall be used to determine whether the license holder is in compliance with an extraction license, and if not, the Planning Board shall permanently revoke the license; and therefore may request that the City Attorney take remedial action, as is permitted by City ordinance or state law. Revocation shall result in the loss of all prior exemptions and variances issued as a part of the licensing process, and any new license for the site shall be applied for as though the site is a new mineral extraction operation.
(2)
The applicant can terminate the process above at any time prior to
revocation by demonstrating compliance with his approved license at
a subsequent compliance inspection, which he requests, and payment
of inspection fees, followed by the issuance of a letter of compliance
by the CEO. Mineral extraction may not be resumed until such time
as compliance is achieved.
D.
Violations.
(1)
No person, corporation or other legal entity may sell or offer to
sell any materials in a mineral extraction activity site unless the
site has been approved by the Planning Board.
(2)
The Augusta Planning Board may, after notice and public hearing,
withhold approval or revoke any previous approvals given to any applicant,
owner or operator who is found in violation of this article.
(3)
Any operation that is in violation of other approvals, including
but not limited to MDEP or MDOT licenses or permits covering the same
operation, shall be deemed in violation of approvals granted under
this article, in that all other approvals are necessary for approvals
under this article to be valid.
E.
Mineral extraction plan amendments after approval. No changes, erasures,
or modifications shall be made in a final plan after approval has
been given by the Planning Board unless the plan is first resubmitted
and the Planning Board approves any modifications. The applicant is
not required to go through the complete review process of an amendment
to an existing mineral extraction activity unless, in the judgment
of the Planning Board, the amendment substantially alters the character
of the original mineral extraction activity, or unless the change
constitutes a new mineral extraction activity. If an amended final
plan is recorded without complying with this requirement, it shall
be null and void.
F.
Enforcement.
(1)
The Corporation Counsel shall enforce this article and is authorized
to institute legal proceedings to enjoin violations of this article.
The Code Enforcement Officer and the City Engineer shall have the
right to enter upon the property of any applicant or licensee of a
mineral extraction operation or associated use to conduct inspections
and reviews of proposed or existing conditions. The CEO shall notify
the operator that he is on the premises, and an operator shall make
himself available for on-site visits.
(2)
If the Code Enforcement Officer finds violation of any provision of this article or failure to comply with any order, permit, approval, condition or other final decision or action of the Planning Board that constitutes a substantial and immediate danger to the health, safety or welfare of any person(s), or property or environment of the City of Augusta, Maine, the City may issue a stop-work order, a compliance schedule, or may initiate immediate injunction proceedings to abate or correct such violations. Violations are subject to inspection as per this § 198-10.
(a)
A stop-work order shall only be issued for an entire mineral
extraction activity when it is the entire operation that creates the
alleged violation and threat to the public health and welfare.
(b)
If the alleged violation concerns only one or more activities
of the operation and not the entire operation, then the stop-work
order issued by the CEO shall be specific to the activity and location
of the activity or activities directly related to the alleged violation.
(3)
In any action to enforce any provision of this article where the
City of Augusta, Maine prevails, said City shall be awarded reasonable
attorney fees, expert witness fees, and costs unless the court finds
that special circumstances make the award of these fees and costs
unjust.
G.
Penalties. Any person, firm or corporation, being the owner or having
control or use of any mineral extraction activity in violation of
any of the provisions of this article or terms or conditions of any
order, permit or approval or final decision of the Planning Board,
shall be subject to a civil penalty as allowed by 30-A M.R.S.A. § 4452.
[Amended 12-1-2011 by Ord. No. 166]
A.
Term of license. Mineral extraction licenses expire five years after
approval by the Planning Board or Licensing Board, unless revoked
or renewed by the Planning Board. If a renewal application is filed
at least 30 days before the required five-year review, extraction
activities may continue under the existing license until the Planning
Board or Licensing Board review has been completed.
[Amended 2-17-2022 by Ord. No. 22-024]
B.
Renewal procedure.
[Amended 2-17-2022 by Ord. No. 22-024]
(1)
Licenses
which include blasting shall apply to the Planning Board for renewal.
Changes to footprint of operations and accessory uses may be conducted
concurrently with a license renewal at the Planning Board. All other
licenses shall apply to the Licensing Board for renewal.
(2)
A holder of a valid mineral extraction license shall have its operations
inspected by the CEO for compliance within 60 days of submitting an
application for license renewal. The letter of compliance from the
CEO shall be submitted with the license renewal application.
(3)
The applicant shall provide, at a minimum, certification prepared
and stamped by a licensed land surveyor certifying that there has
not been an expansion of operation beyond the original footprint of
operation since the original approval. Additional data may be requested
by the Planning Board or Licensing Board as necessary to determine
compliance with the standards of this article.
(4)
The
Licensing Board may, as a part of the renewal process, require Planning
Board approval should noncompliance occur during the licensing term.
Licensing terms shall only be modified by the Planning Board.
(5)
The Planning Board may, as a part of the renewal process, impose
new conditions on the license or modify the license in any way necessary
to assure compliance with the license being reviewed and the division
as it is in effect at the time of renewal. If there has been a history
of significant noncompliance, the Planning Board may deny the request
for a license renewal. A mineral extraction activity cannot be expanded
beyond its licensed area as part of the five-year review process.
Any expansion not allowed in the initial license must be processed
as a separate application under the ordinance in effect at the time
of the expansion application.
(6)
Any use, primary, associated, or accessory, that becomes nonconforming as a result of changes to Chapter 300, Land Use, or this Mineral Extraction Ordinance shall be sunsetted as part of the license renewal process and shall not be allowed to continue under a renewed license.
Any use, primary, associated, or accessory, that requires major or minor development review under Chapter 300, Land Use, at the time of license renewal, but did not require or obtain such approval at the time of limited establishment, shall receive such review from the Planning Board at the time of license renewal.
[Adopted 8-2-2012 by Ord.
No. 12-112 (Ch. 6.2, Art. II, Div. 3, of the 1990
Code)]
All excavations within the public rights-of-way shall require
an excavation and street opening permit issued by the Department of
Public Works prior to performing any work in the public right-of-way.
All fees, work and other requirements shall conform to the City of
Augusta's Excavation and Street Opening Policy.[1]
[1]
Editor's Note: The Excavation and Street Opening Policy is included as an attachment to this chapter.
When a person is permitted, in accordance with the provisions
of this article, to occupy any part of a street for building purposes,
such person shall erect and maintain around the part so occupied a
sufficient fence or barricade to prevent injury to persons, animals
or vehicles passing the premises, and shall keep the same properly
lighted at night. Such areas shall be properly posted. Temporary sidewalks
shall be provided when requested by the City Engineer.
