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Borough of East Rutherford, NJ
Bergen County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Mayor and Council of the Borough of East Rutherford 4-16-2019 by Ord. No. 2019-09. Amendments noted where applicable.]
The purpose of this chapter is to prevent the unregulated and uncontrolled relocation, filling, excavation and removal of soil by developers and excavators which may result in a detriment to the public safety, health and general welfare of the Borough of East Rutherford. The continuation of the unregulated and uncontrolled relocation, filling, excavation and removal of soil and filling with unsuitable material may cause serious and irreparable damage to the public welfare by reason of the consequent: soil erosion by water and wind; inadequate and improper surface water drainage; decrease in or destruction of the fertility of soil; removal of lateral support of abutting streets, land and premises; creation of dust storms and mosquito breeding places; creation of dangerous depressions or pits; deterioration of property values; rendering of lands unfit or unsuitable to their most appropriate uses; and creation of other factors and elements hampering and deterring the coordinated, adjusted and harmonious physical development of the Borough.
As used in this chapter, the following terms shall have the meanings indicated:
DEVELOPER
An excavator.
DISTURBANCE
The cutting of trees, movement of soil, including plowing, spading, cultivating, harrowing or disking of soil, landscaping and gardening.
EXCAVATOR
Any person who moves soil.
LOT
Any parcel of land or portion thereof, the boundary lines of which can be ascertained by reference to the maps or records in the office of the Borough Tax Assessor or in the office of the Bergen County Clerk.
MAJOR SOIL-MOVING PERMIT
A permit for the moving of more than 200 cubic yards of soil on any lot within any 12 consecutive months, as required by this chapter.
MINOR SOIL-MOVING PERMIT
A permit for the moving of less than 200 cubic yards of soil or the disturbance of greater than 2,000 square feet of a lot within any 12 consecutive months, as required by this chapter.
MOVE
To dig, excavate, remove, deposit, place, fill, grade, re-grade, level or otherwise alter or change the location or contour or to transport or to supply. This term shall not be construed to include plowing, spading, cultivating, harrowing or disking of soil or any other operation usually and ordinarily associated with the tilling of soil for agricultural or horticultural purposes, landscaping and gardening by homeowners or agents of homeowners, provided that it does not substantially alter existing drainage patterns. For the purpose of calculating the quantity of soil being moved, the total soil movement shall be the sum of the total excavated soil and the soil imported to the lot.
OWNER
Any person seized in fee simple of any lot or having such other interest or estate therein as will permit exercise of effective possession thereof or dominion thereover.
SOIL
Any earth, sand, clay, loam, gravel, humus, rock or dirt, without regard to the presence or absence therein of organic matter, including any synthetic substance used as a substitute or in conjunction with soil.
TOPSOIL
Soil that, in its natural state, constitutes the top layer of earth and is composed of 2% or more, by weight, of organic matter and has the ability to support vegetation.
No person or excavator shall move any soil, or change or alter the grade of any property, within the Borough without first obtaining a soil-moving permit as hereinafter provided. No construction permit nor certificate of occupancy shall be issued, as the case may be, until a soil-moving permit has been issued.
The provisions of this chapter shall not apply to the following operations:
A. 
The moving of 25 cubic yards or less of soil on any lot within a twelve-month period.
B. 
The moving of soil in connection with the construction or alteration of the basement or foundation of a building for which a proper building permit has been issued by the Construction Official of the Borough.
C. 
The moving of soil for the installation of underground utility lines, provided that all necessary permits have been issued.
D. 
The moving of soil for landscape planting, farming and gardening by homeowners, provided it does not substantially alter the drainage patterns of the lot.
E. 
Where the only soil which is disturbed or moved is limited to that which is excavated pursuant to the installation of a swimming pool or the foundation of a structure for which valid building permits have been issued, provided the topography and elevation of the property is not altered.
F. 
When soil is removed or added pursuant to the removal of a tree stump.
No soil-movement permit shall be issued to any person or entity other than the owner of the lot, or to a tenant with the owner's written consent, and only if the moving of soil from, in or upon the lot is necessary for the immediate development of the property and the normal grading of the lot concerning which the application is made. No permit shall be issued for longer than one year.
Anyone engaged in the movement of soil of 200 cubic yards or less of soil or the disturbance of greater than 2,000 square feet of a lot within any 12 consecutive months shall make application to the Zoning Officer for a permit prior to commencing operations. The Zoning Officer, upon receipt of a complete application, shall refer the application to the Borough Engineer who shall make a field investigation and shall recommend the issuance of the permit or recommend denial of the permit, giving his reasons for the denial.
Any soil-moving permit classified by the Borough Engineer as a major soil moving application and referred to the Planning Board. A major soil-moving permit shall be required to be approved by the Planning Board after a public hearing, with notice being required to be given to all persons as set forth in N.J.S.A. 40:55D-12. The Planning Board shall fix a date for the public hearing within 45 days after the receipt of the complete application as determined by the Borough Engineer. The issuance of the major soil-moving permit shall be made by the Planning Board.
The procedure for applying for and issuance of a soil-moving permit shall be as follows:
A. 
Applications for minor soil-moving permits shall be filed with the Zoning Officer and shall be accompanied by the fee prescribed in this chapter and a survey depicting the location where the soil movement will occur on the property. Applications shall be made in triplicate on forms prescribed by the Borough.[1]
[1]
A copy of the soil-moving permit application referred to herein may be found at the end of this chapter.
B. 
Applications for major soil-moving permits shall be filed with the Zoning Officer and shall be accompanied by the fee prescribed in this chapter. Applications shall be made in triplicate on forms prescribed by the Borough for determination of completeness. Upon determination by the Borough Engineer that a complete application has been submitted, the applicant shall submit 15 copies to the Planning Board for scheduling of a public hearing date.
C. 
Form of application.
(1) 
The names and address of the applicant.
(2) 
The names and address of the owner of the property.
(3) 
The relationship between the applicant and owners.
(4) 
Name and address of the person having express charge, supervision and control of the proposed soil-moving operation.
(5) 
The lot, block number and street address of the lot or lots involved.
(6) 
The purpose or reason for the moving of soil.
(7) 
The estimated quantity, in cubic yards, and type of soil to be moved with supporting calculations.
(8) 
A statement as to how the moving of the soil will affect all trees with a diameter of four inches or more.
(9) 
The proposed date of commencement and completion of the work.
(10) 
A description of equipment to be used in the soil movement operations.
(11) 
A list of the number and size of trucks and other vehicles.
(12) 
A listing of the route to be used by the vehicles in the moving and installing of the soil.
(13) 
The source, address and town of the soil moved to the lot. A certification from a certified laboratory as to the soil suitability or the certification from an environmental consultant based upon the historical survey of the source site of the soil suitability.
(14) 
Proof of liability insurance in such an amount and form as the Planning Board may require.
(15) 
Method of abating noise and dust in the soil moving operation.
(16) 
A statement granting permission to the Borough officials or their employees to enter the premises and make inspections as the work progresses.
(17) 
Such other pertinent data as the Planning Board may hereinafter reasonably require.
D. 
Topographical map. Accompanying the application shall be a topographical map prepared by a licensed professional engineer and a licensed professional land surveyor. The map shall be prepared at a scale not to exceed 30 feet to the inch. The topographical map shall include the following:
(1) 
Boundary limits of the entire lot, including metes and bounds information.
(2) 
Limits of the area to be disturbed or graded for which the permit is sought.
(3) 
The present grades at two-foot intervals of the area to be disturbed or graded and the area 25 feet outside the limits of the area to be disturbed or graded.
(4) 
The proposed grades at one-foot intervals of the area to be disturbed or graded and the area 25 feet outside the limits of the area to be disturbed or graded, using a designation different than those used for the present grades.
(5) 
The present grades at two-foot intervals of all adjacent properties to a distance of at least 15 feet from the lot in question, including the location of any structures within such 15 feet if the area to be disturbed or graded is within 25 feet of the property line.
(6) 
The location and size of proposed structures, with first floor and basement elevations of all proposed buildings.
(7) 
All elevations shall be computed based on United States Coast and Geodetic Survey datum.
(8) 
Location of all trees greater than four inches in diameter.
(9) 
The quantity of soil for which the soil-moving permit is sought, together with the calculations used to arrive at such determination of quantity. The quantity shall be calculated by accepted earthmoving computations, such as the average end area method. The quantity of soil to be moved shall be certified as accurate by a licensed professional engineer.
(10) 
Details of retaining walls and other structures proposed for support of soil, together with elevations of proposed grade above and below any retaining wall and at the top of the wall. All retaining walls must be designed, construction supervised and certified by a licensed professional engineer.
(11) 
The plan must clearly delineate soil erosion and sediment control measures and construction techniques that are to be implemented to minimize the loss of soil due to erosion.
(12) 
The plan must provide construction details for the soil erosion and sediment control measures and construction techniques that are to be implemented to minimize the loss of soil due to erosion.
(13) 
A notation as to the method of restoration of disturbed areas. The method of permanently stabilizing all disturbed areas.
(14) 
All easements and restrictions of record which may affect the subject lot or lots.
(15) 
Existing surface and subsurface drainage conditions and patterns of the lot and surrounding area.
(16) 
The presence, absence or location of freshwater wetlands on the lot or within 50 feet of the area to be disturbed.
(17) 
Location of any water body, on the lot or within 50 feet of the area to be disturbed.
An application for a soil-moving permit shall be reviewed and considered in the following manner:
A. 
Minor soil-moving permit; issuance. Within 30 days of the receipt of a completed application, the Borough Construction Official shall render a determination based upon the recommendation of the Borough Engineer.
B. 
Major soil-moving permit; issuance. The Planning Board shall review and render a determination within 95 days after the submission of a completed application.
Any proper party may appeal to a court of appropriate jurisdiction pursuant to applicable law.
In considering and reviewing applications for minor and major soil-moving permits, the Borough Planning Board and Borough Engineer shall be guided by the general purposes of municipal planning and the following standards:
A. 
Soil erosion by water and wind.
B. 
No soil moving shall be permitted to result in any increase of velocity or change in direction of surface water runoff without such water being appropriately managed on site so as to not adversely affect other properties.
C. 
Soil fertility and soil-bearing capacity.
D. 
Lateral support of abutting streets and lands.
E. 
Public health and safety.
F. 
Land values and uses.
G. 
The general welfare of the municipality and of the citizens of the Borough of East Rutherford.
H. 
The unsightliness of the premises after soil movement.
I. 
The effect of flooding upon the premises in question or surrounding properties.
J. 
No soil-moving permit shall be issued unless the applicant demonstrates, upon a preponderance of the evidence, that the granting of the soil-moving permit would not have any substantial detrimental impact upon any person, surrounding property or the Borough.
K. 
In development of land, natural grades should be preserved wherever possible, and soil moving shall only be permitted when good and sufficient reason appears for such soil moving.
L. 
No soil moving shall be permitted which shall result in the removal or destruction of trees in violation of the standards established under the Tree Removal Ordinance of the Borough. In all respects, the applicant shall provide a method for protection of trees acceptable to the Borough, provide welling or mounding where appropriate.
M. 
All proposed structures shall be situated on the lot so as to require the least amount of soil moving as is practical.
N. 
Whether the proposed removal of soil constitutes a commercial activity.
O. 
No slope created by soil moving shall be permitted to exceed a grade which rises or falls one foot vertically for every three feet horizontally, if demonstrated to the satisfaction of the Borough Engineer that the slope is stable and will not cause erosion and slope instability.
P. 
Such other factors as may bear upon or relate to the coordinated, adjusted harmonious physical development of the Borough.
Q. 
Proposed soil and sedimentation control plan.
A. 
Soil-moving application fee.
(1) 
Minor soil-moving application fee: $100 plus a fee of $250 for the Borough Engineer's review. An additional $125 fee must be posted for each plan revision.
(2) 
Major soil-moving application fee: $1,500 plus a minimum escrow deposit of $1,500 for the review by the Borough Engineer and a minimum escrow deposit of $1,500 for the Planning Board Attorney. Said escrow to be maintained and replenished in accordance with the Borough Ordinance and the Municipal Land Use Law.[1]
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
(3) 
Soil application fee will not be refundable.
B. 
Exemption from fees. All federal, state and local authorities, including the Board of Education and charitable organizations, may be exempt from the requirements of soil application fees and soil-movement fees at the discretion of the Planning Board.
A. 
A road restoration bond of a minimum of $3,000 must be posted for major soil-moving permits. The purpose of this bond is to cover the cost of municipal road repairs damaged during the soil-moving operations.
B. 
A performance bond shall be posted for all major soil-moving permits. The amount of the performance bond shall be determined by the Borough in accordance with the Municipal Land Use Law.[1]
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
C. 
The Planning Board may request additional bonds for improvements shown on the soil-moving application or plan, such as, but not limited to, the following: retaining walls, planting, drainage, erosion, control damages to hauling route, etc. In ascertaining the rate upon which to compute the amount of the bond, the Planning Board shall take into consideration such factors as may bear upon the facility with which the proposed work may be performed, including, but not limited to, the type and character of soil; the extent of the area over which the soil-moving operations are to be conducted; the extent and depth of the various cuts and fills; the extent to which the area of operations is wooded; the proximity of the proposed operations to streets, buildings, structures, natural or artificial streams or watercourses and general drainage conditions.
D. 
In addition to the engineering review escrow required in § 319-12A(2), an engineering inspection escrow fee of a minimum of $1,000 must be posted for major soil-moving permits. Additional engineering escrow monies must be posted upon notice of the depletion of the escrow monies.
E. 
Requests for the release of any bonds posted or any unused escrow fees in accordance with the terms of this section or the resolutions of the Planning Board shall be accompanied by an affidavit, stating that the soil-moving operation has been completed in accordance with the application and all plans, maps and other data filed therewith and in accordance with all resolutions and conditions therein adopted by the Planning Board.
A. 
The soil-moving permit shall be in such form as may be prescribed by the Planning Board. A minor soil-moving permit shall be signed by the Zoning Officer. A major soil-moving permit shall be signed by the Secretary of the Planning Board or the Chairman of the Planning Board, and it shall contain any special conditions set forth in the recommendation.
B. 
The soil-moving permit shall be dated as of the date it is actually issued, and the term of said permit shall not exceed one year.
C. 
All permits shall automatically expire on the termination date, unless application for renewal has been made and approved in writing, extending such permit.
D. 
Hours of operation. Any soil-moving operations which include loading and unloading shall be in accordance with the Borough's current restrictions for contractors.
E. 
No soil-moving permit shall be issued until it is determined that there are no outstanding taxes or assessments for local improvements due or delinquent on the property for which the application is made.
No person to whom a soil-moving permit has been issued shall:
A. 
Conduct or maintain on the premises any sand, gravel or similar kind of pit; any sand- or gravel-washing or -screening machinery or equipment; any business or industry not permitted in the district in which said premises are located and classified by the East Rutherford Zoning Ordinance, as amended and supplemented; or any endeavor or enterprise other than the grading or re-grading of said premises in accordance with the provisions of said permit, and, where applicable, the necessary disposal of soil incidental to said grading or re-grading.
B. 
Conduct or maintain any soil-moving operations without having first made adequate provisions by means of water, calcium chloride, or otherwise, for the prevention of dust incidental to the use of vehicles, machinery and equipment on the lands described in the soil-moving permit.
C. 
Neglect to dispose of, on or before the completion date stated in the application, any partially or wholly excavated boulders or other noncombustible debris resulting from the soil-moving operations by burial or removal and any partially or wholly excavated stumps felled or uprooted trees or other combustible debris resulting from the soil-moving operations.
D. 
Conduct any soil-moving operations beyond the expiration date as set forth in the soil-removal permit or extended expiration date as may duly be granted by the Planning Board.
Soil-moving conducted in the Borough shall be performed in accordance with the following regulations:
A. 
In all operations for which a permit is required:
(1) 
Prior to the start of soil-movement operations, the disturbance of a lot, or construction, the following must be performed.
(a) 
The limits of disturbance must be delineated with construction fencing.
(b) 
Sediment barriers must be installed and maintained throughout the entire length of the project.
(c) 
Tree protection measures must be installed.
(2) 
Lands shall be graded to conform to the approved contour lines and grades.
(3) 
Streets, roads and paved surfaces shall be cleaned, at the applicant's expense, on a daily basis of sediments and debris.
(4) 
The top layer of soil to a depth of six inches shall not be removed from the premises, but shall be set aside and re-spread over the premises when the remainder of the soil has been moved.
(5) 
Certified laboratory reports must be provided for imported soils demonstrating compliance with NJDEP Residential District Contact Soil Cleanup Criteria, as described in N.J.A.C. 7:26D (Remediation Standards) and N.J.A.C. 7:26E (Technical Requirements for Site Remediation).
B. 
In all operations, whether or not a permit is required:
(1) 
Prior to the start of soil movement operations, the disturbance of a lot, or construction, the following must be performed:
(a) 
Sediment barriers must be installed and maintained throughout the entire length of the project.
(b) 
Tree protection measures must be installed and approved by the Director of Public Works.
(2) 
All boulders, tree stumps and other debris shall be removed from the property.
(3) 
In dry weather the person conducting such operation shall dampen the ground where operations are conducted to prevent dust.
(4) 
No trucks used shall be loaded above the level of the sides of the truck, to prevent spillage, and all streets shall be cleaned, at the applicant's expense, each day, of any spillage or soil on such streets resulting from truck operations.
(5) 
All truckloads shall be covered with tarpaulin and, if necessary, treated by water or chemical to prevent flying dust.
(6) 
All vehicles engaged in such operations shall use as routes only those Borough streets which have been approved by the Planning Board.
(7) 
The entire area covered by the work shall be maintained and left in such manner as not to create or maintain a nuisance or condition hazardous to life and limb or to the health or general welfare of the inhabitants or the Borough of East Rutherford.
(8) 
All excavation, removal and other mandatory groundcover work, including restoration of property to final grades and subsequent seeding, must be completed within one year from the date of the permit.
(9) 
No more soil shall be removed than is reasonably necessary for the development and use of the land.
(10) 
No soil removal shall be allowed which shall cause drainage to adjacent property or prejudicially affect the values of adjacent properties.
(11) 
The owner or person in charge of soil removal/deposit shall conduct the operations to minimize, to the extent practicable, soil transport from water runoff, creation of dust or other airborne contamination.
(12) 
All soil movement must be done in strict compliance with and under control and supervision of the Borough Engineer in conjunction with the Bergen County Soil Conservation District, concerning drainage, grading, seeding, fertilizing, etc., of the entire area affected by said soil removal.
(13) 
No import of soils or removal of earth from the ground shall be made so as to expose to possible pollution, by water intrusion or otherwise, any underground water used as a public water supply.
A. 
Whenever any developer or excavator shall move topsoil in or upon any lot, provision shall be made for the storage of said topsoil within the boundary lines of said lot.
B. 
Except as hereinafter provided, all of the topsoil so stored shall be uniformly replaced over the entire area or surface of the lot on or before the completion date set forth in the soil-moving permit, so that the final grade or grades of said replaced topsoil shall be in accordance with the proposed final grades shown on the topographical map.
C. 
No developer or excavator shall remove to any point beyond the boundary lines of the lot any topsoil whatsoever unless and until topsoil not inferior in quality to that to be removed shall first have been replaced uniformly to a depth of not less than six inches, measured from the proposed final grades as shown on the topographical map, over the entire surface or area of the lot, excepting only such portions thereof as shall be or shall have become, since the date of filing of said topographical map, permanently covered by a building or structure, street pavement, curb, sidewalk, driveway or other paved area or by any body of water or waterway. In no event shall the developer or excavator remove from the lot more topsoil than that comprising the surplus or excess remaining after the replacement of the topsoil as aforesaid.
For the purpose of administering and enforcing this chapter, any member of the Planning Board, duly authorized agent of the office of the Borough Engineer and Zoning Officer's office of the Borough shall have the right to enter into and upon any lands in or upon which soil-moving operations are being conducted to examine and inspect such lands. The Zoning Officer is hereby authorized to revoke or suspend any permit issued hereunder and to issue stop-work orders and summonses for any violation of this chapter as determined by the Zoning Officer or the Borough Engineer.
A. 
Any person who violates the terms or provisions of this chapter shall be subject to a minimum fine of $100, up to a maximum penalty as permitted by § 1-17 of this Code. Subject to the foregoing minimum and maximum penalties, the presumptive penalty shall be calculated on the basis of $5 per cubic yard of soil moved in violation of this section. A continuing violation may be deemed committed and a new summons may be issued, for each consecutive one-day period during which a violation continues.
B. 
The penalties set forth above may, upon a written plea of "guilty," be paid and satisfied through the Violations Bureau of the Municipal Court of the Borough of East Rutherford without the requirement of a court appearance.
C. 
In addition to any other remedies, the Borough may enforce any provision of this chapter or any condition of any soil moving permit by an action in Superior Court where in the Borough may seek legal and equitable remedies that may include cost of restoration damages and legal fees.