Editor's Note: The power to provide regulations to control the removal of soil is part of the general police power contained in N.J.S.A. 40:48-1, 2
[1982 Code § 12-1]
As used in this chapter. Words and terms used in this chapter shall be deemed and construed to have the following meanings:
- Shall mean any person who, either directly or through agent or independent contractor, engages or intends to engage in land subdivision or development or in the construction of two or more dwelling houses, business or industrial buildings in any subdivision for the purpose of sale to or occupancy by another person or persons.
- Shall mean any person, engaged in the moving, removal or excavation of soil or topsoil from, in or upon any land in the Borough.
- Shall mean to dig, excavate, to remove; to deposit; to place and to fill; to grade, regrade, level or otherwise alter or change the location or contour; to transport, supply. Exclusions shall be as more particularly set forth in Section 22-8.
- Shall mean any person seized in fee simple of any land, or having such other interest or estate therein, as shall permit the exercise of effective possession thereof or dominion or control thereover.
- Shall mean one or more contiguous parcels of land in single ownership. Parcels shall not be deemed to be contiguous if separated by a road, railroad, right-of-way, brook, stream or other natural division.
- Shall mean any earth, sand, clay, loam, gravel, humus, rock or dirt, irrespective of the presence or absence therein of organic matter.
- Shall mean soil that, in its natural state, constitutes the top layer of earth and shall be composed of 2% or more by weight of organic matter and have the ability to support vegetation.
[1982 Code § 12-2.1]
No owner, developer, excavator, or other person shall dig, excavate, scrape or otherwise disturb or move, or cause, allow, permit or suffer to be moved, the soil on any premises in the Borough for use other than on the premise from which it shall be taken, unless and until, after application to and a public hearing by the Planning Board, such Board shall first determine that the excavation and removal of the amount of soil applied for is necessary and essential to the development of the premises from which such soil shall be excavated or removed, for a use that is permitted under the currently effective zoning regulations of the Borough, or unless and until, if it is claimed that the removal of the soil from the premises is a nonconforming use, the Board of Adjustment, after hearing, shall find and determine that the removal and sale or other disposition of such soil from such premises is a valid nonconforming use, and the extent thereof.
Should the Planning Board find and determine that the removal of the amount of top soil applied for is necessary and essential to the development of the premises for a use permitted by the chapter or should the Board of Adjustment find and determine the existence of a nonconforming use of such premises for the removal, sale, or other disposition of the soil from such premises and the extent thereof, no owner, developer, excavator, or other person shall still be permitted to excavate, dig, scrape, or otherwise disturb or move, cause, allow, permit, or suffer to be moved, any soil on any premises in the Borough for use other than on the premises from which it shall be taken until a soil removal permit therefor shall have been first obtained from the Borough Council as hereinafter provided.
[1982 Code § 12-2.2]
The owner of any premises in the Borough who claims that he cannot develop his property for a use permitted by the zoning chapter without the excavation and removal of soil therefrom to places within or without the Borough shall make application to the Planning Board for a determination by it that such premises cannot be developed for a use permitted by the zoning chapter without the excavation and removal of soil from such premises, and the amount and extent of such excavation and removal. Accompanying such application, the owner shall submit a preliminary map or plat as provided in the subdivision chapter and, in addition thereto, shall clearly delineate thereon the place or places from which the soil is sought to be removed. The application shall also specify the number of cubic yards of soil to be removed; the length of time necessary to do so; and a concise statement indicating why it is essential and necessary to the development of the property to remove such amount of soil.
[1982 Code § 17-3.6; Ord. No. 18-90]
A soil moving fee will be charged at $0.08 per cubic yard of fill or excavation, whichever is greater, less the soil application fee. If the permit is voluntarily withdrawn, the soil moving fee, less the expenses incurred by the Borough shall be refunded.
All utility companies, Federal, State and local authorities, including the Board of Education and charitable organizations, may be exempt from the soil application and soil moving fees upon application to and in the discretion of the Borough Council.
[1982 Code § 12-2.3]
The Planning Board shall thereupon and forthwith, schedule and conduct a public hearing on such application in accordance with the applicable provisions of the Municipal Land Use Act, N.J.S.A. 40:55D-1, et seq., as amended and supplemented. Following such public hearing, it shall make adequate findings and conclusions based upon the evidence submitted to it as to whether the removal of soil as applied for is necessary and essential to the development of the premises for a use permitted by the zoning chapter, taking into account the grades of abutting streets and lands, adjacent land values and uses, drainage, and such other factors as may bear upon or relate to the coordinated, adjusted, and harmonious physical development of the Borough as a whole.
[1982 Code § 12-2.4]
Any owner of lands who claims the right to excavate, remove, and sell or dispose of soil from his premises by reason of a valid nonconforming use shall, before continuing such operation, apply to the Board of Adjustment for a finding and determination of such nonconforming use and the extent thereof. Such Board shall accept and process such application under the authority of N.J.S.A. 40:55D-70, and the other applicable provisions of N.J.S.A. 40:55D.
[1982 Code § 12-2.5]
Following a determination by the Planning Board that the removal of soil is essential and necessary to the development of the premises as provided for in subsection 22-2.1 or a determination by the Board of Adjustment that a nonconforming use exists and the extent thereof as provided for in subsection 22-2.4, an application for a permit to remove the soil shall be presented to the Mayor and Borough Council to the attention of the Borough Clerk. Such application shall be in writing and shall be presented at least 10 days prior to a regular meeting of the Borough Council.
The Borough Clerk shall determine if the application is in proper form and complete as prescribed in subsection 22-2.8 herein.
[1982 Code § 12-2.6]
The Mayor and Borough Council shall make a preliminary study of the application; and if it shall be determined that the application is in order, they shall refer such application to the Borough Engineer for study and report.
The Borough Engineer shall immediately make a complete engineering study and report in writing to the Mayor and Borough Council within 30 days of the date of referral by the Mayor and Council. However, the Council may disapprove of the application without forwarding same to the Borough Engineer upon a factual finding that the granting of such application shall not be in the best interest of the public health, safety and general welfare of the citizens of the Borough.
[1982 Code § 12-2.7]
Upon receipt of the engineering report, the Council shall take action which it deemed appropriate not later than the second regular meeting following the receipt of the recommendations. If no action is taken within the period limited, the application shall be considered denied.
[1982 Code § 12-2.8]
The procedure for filing an application for the issuance of a soil permit shall be as follows:
On a form to be supplied by the Borough Engineer or Borough Clerk, the applicant shall set forth in triplicate the following:
The identity and address of the applicant.
A description of the land in question.
The identity and address of the owner of the land.
An estimate of the quantity of soil to be moved in cubic yards, broken down into two figures, namely, topsoil and other soil.
In the case of removal of topsoil, the amount to be removed from the Borough shall be estimated and stated on the application.
The proposed dates of commencement and completion of the work, the completion date shall in no event exceed one year from the date of approval of the application except as provided in paragraph d of this subsection.
An estimate of the type and number of machines and other equipment to be used in such operation, the daily starting and finishing time during which such machines shall be operated, and what protection shall be provided to keep children and others having no business on the land from gaining access thereto.
Accompanying the application there shall be filed a topographical map in triplicate of the land upon which the proposed soil moving operations are to be conducted, which topographical map shall include all of the surrounding lands with 200 feet of the perimeter of land which is the subject matter of the application, prepared and certified by a licensed professional civil engineer or land surveyor of the State of New Jersey on the scale of not less than one inch to 100 feet, and referred to the United States Coast and Geodetic Survey Data showing both as to the land and as to all of the surrounding land:
The dimensions of the land and the lot and block number of the land and of each lot surrounding the land within 200 feet thereof as shown on the last tax assessment map of the Borough.
The present grade on a fifty-foot grid layout with contour lines at two foot levels up to and including five acres or, for more than five acres 100-foot grids with contour lines at five foot levels. Where access to adjoining lands is not permitted, the contour lines of the perimeter lands shall be taken from the available State of New Jersey or United States Coast and Geodetic Survey Map of the particular area.
The existing elevation of all buildings, structures, streets, streams, bodies of water and watercourses, natural or artificial.
All existing surface or subsurface water drainage conditions and provisions therefor.
All wooded areas.
The proposed grades at points in paragraph 2 above when the work has been completed with the same requirements as contained therein.
The quantity in cubic yards of the soil involved in the work.
The average depth of topsoil as determined by taking borings in approximate center of each 100-foot grid.
The grades of all abutting streets and lands.
Proposed slopes and lateral supports at the limits of the area upon completion of the proposed work.
The proposed details of entry and egress for surface water drainage and of any streams, bodies of water, and watercourses, natural or artificial.
In addition to the above requirements of paragraphs a and b of this subsection, the applicant shall furnish such other pertinent data as the Borough Engineer may require after he has had an opportunity to examine the proposed project, including the extent, in cubic yards, of topsoil to be removed and whether such topsoil shall be replaced on the site in question or moved to some other place, and, if so, whether inside or outside of the Borough.
The application shall be submitted with a fee to the order of the Borough in accordance with the schedule set forth in subsection 22-2.3.
If the application and fees submitted to the Borough include a total amount of soil to be moved in excess of that moved within the time specified on the application, and should a renewal be desired by the applicant in order to complete the original estimates, the fee for such renewal shall be as provided in subsection 22-2.3, except that such applicant shall pay fees based upon yardage to be removed, in accordance with the provisions of paragraph e below. No such renewals without application and fees shall be granted that shall extend the original project beyond three years from the date of the commencement of the work. Such renewal shall not be considered to be in conflict with paragraph a,6 since such renewals shall be required for each year or part thereof.
In the event of a refusal to issue such soil permit as hereinafter provided, all expenses to the Borough shall be deducted from the permit fees paid and any balance remaining shall be returned to the applicant.
There shall also be paid to the Borough, in addition to the fees provided in paragraph d above, a further sum to cover the cost of inspection and enforcement of the provisions of this chapter based upon the total number of yards to be removed in accordance with the schedule set forth in subsection 22-2.3.
In order to insure conformity with the requirements of this chapter with reference to but not limited by the conditions laid down in paragraphs a and b above, inspections shall be made by the Borough Engineer, or his duly authorized or qualified agent, of the land in or upon which soil moving operations are being conducted.
[1982 Code § 12-2.9]
In the removal of soil, when the permit has been duly granted, the owner or person in charge shall so conduct the operations that there shall be no sharp declivities, pits or depressions, that there shall be no interruption with natural drainage, and in such a manner that the area shall be properly leveled off, cleared of debris and graded to conform with the contour lines and grades as approved by the Borough Engineer. The conduct of the operation shall be under the responsibility and control of the Borough Engineer, who shall make periodic inspections to determine that there is no deviation from the information and requirements of the application as approved.
[1982 Code § 12-2.10]
The Borough Council in considering and reviewing the application and in arriving at its decision and the Borough Engineer in supervising and inspecting the operation of soil removal, shall be guided and take into consideration the public health, safety and general welfare, and particular consideration shall be given to the following factors:
[1982 Code § 12-2.11]
In the event permission is not granted, the applicant, upon written request for a hearing made to the Borough Council, shall be given an opportunity to be heard within 30 days thereafter.
If, after examining the application and the maps provided for in this chapter, and the reports of the Borough Engineer, or after the hearing in the event a hearing is requested by the applicant, the Council shall be of the opinion that the proposed soil removal shall not create conditions inimical to the public health, welfare and safety and shall not result in the creation of any sharp declivities, pits or depressions, soil erosion or fertility problems, depressed land values nor create any drainage, sewerage problems, or other conditions of danger, permission to remove the soil shall be granted.
[1982 Code § 12-3.1]
The applicant shall be required to section the entire property which is the subject of his permit into areas of not more than two acres and he shall so schedule the work of soil removal so that the operation conducted in one section shall be complete and that section shall be at final grade before work shall commence in any other section of the premises.
[1982 Code § 12-3.2]
In the event the application for a soil removal permit involves the complete removal of a bank which extends above the elevation of the surrounding lands or above the elevation of a public road or street adjacent to such land upon which the removal project is to take place, the moving or removal shall be conducted so as to leave the final grade of the land or lot from which the bank shall be removed at a grade that will not create a hazardous condition with respect to the surrounding lands or such public road or street. Whenever practical, the final grade shall not be lower than the grade of the surrounding lands or of such public road or street and the final grade shall be established and maintained at a minimum of 1% to insure proper drainage. In establishing final grades, the factors to be considered shall be the same as those listed in subsection 22-2.10.
[1982 Code § 12-3.3]
In the event the application for soil moving permit involves the partial cutting down of a bank, such project shall be conducted in a manner so as to leave the final slope of all sides of the remaining portion of the bank at slopes that conform to maximum slope standards for all banks which shall be one vertical to two horizontal regardless of the type of material excavated.
Where earth is moved in order to lower a grade or to alter an existing slope, the upper crown or brink shall not be closer to any property line than 25 feet regardless of elevation difference in the excavation area. This buffer area shall remain untouched and in a natural state.
[1982 Code § 12-3.4]
Whenever any owner, developer or excavator shall remove topsoil in or upon any land in the Borough, provision shall be made for the storage of such topsoil within the boundary lines of the property.
Except as hereinafter provided, all topsoil so stored shall be uniformly replaced over the entire area or surface of the land on or before the completion date set forth in the soil removal permit so that the final grades of replaced topsoil shall conform to the proposed final grades shown on the topographical map.
No owner, developer or excavator shall remove to any point beyond the boundary lines of the land in question any topsoil whatsoever, unless and until topsoil not inferior in quality to that to be removed shall have first been replaced as originally found or in any case not less than six inches of compacted topsoil uniformly placed over the entire surface area of the land excepting only such portions thereof as shall be or shall have become since the date of the filing of the topographical map, permanently covered by 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 owner, developer or excavator remove from the land more topsoil than comprising the surplus or excess remaining after the replacement of the topsoil as aforesaid.
In the event that removal of soil leaves a declivity having a height in excess of five feet with a slope ratio of one vertical foot to three horizontal feet, trees, shrubs or other vegetation shall be left or planted on the border areas provided to effectively screen excavations caused by soil removal. All slopes formed by such excavations shall be provided with vegetation to effectively prevent erosion of the soil by water and/or wind.
[1982 Code § 12-3.5]
Every soil removal project carried out and authorized under and pursuant to a permit issued in accordance with the provisions of this chapter shall be conducted and completed in such a manner as to not create any condition hazardous to life or limb of any member of the public who may have access to the property or to the health, safety or welfare of the Borough. All boulders, tree stumps and other debris shall be removed from the property or completely burned, except that boulders may be buried.
[1982 Code § 12-4.1]
No excavating operation shall be conducted except during the hours from 7:00 a.m. to 5:00 p.m. on weekdays only, Sundays and all legal holidays excluded.
[1982 Code § 12-4.2]
Noise from trucks or equipment so engaged, which is audible, shall not be a source of annoyance or discomfort to any of the residents of the Borough.
Every truckload of such material shall be properly trimmed and in no event protrude more than 12 inches above the sides of the truck at the peak or highest point of the load.
Every truckload shall be wetted down prior to driving on a Borough street in such a manner so that sand, dirt or dust shall not blow from the truck.
All loaded trucks shall comply with the Motor Vehicles Act of the State of New Jersey.
[1982 Code § 12-4.3]
Every person who shall transport over the streets, roads, highways or private ways in the Borough any soil removed from any land or premises pursuant to a soil removal permit issued in accordance with this chapter, shall daily sweep, pick up and remove or cause to be swept, picked up and removed all dust, dirt and mud from such roads, streets, highways or private ways, and shall apply or cause to be applied to roads, streets, highways or private ways, a dust preventative wherever it shall be deemed necessary and such fact communicated to the holder of the permit by the Borough Engineer. In the event of failure, neglect or refusal of any person so to sweep, pick up and remove such dust, dirt and mud or to apply a dust preventative when required by this subsection, the Borough Engineer shall suspend any soil removal permit issued for a period of not less than three days or may revoke the same after notification in writing by a duly authorized officer, agent or employee of the Borough to the holder of the permit. In the event of such revocation, no soil removal permit shall again be issued to such person unless application therefor is made as required by Section 22-2 of this chapter.
[1982 Code § 12-5]
No soil removal permit shall be issued unless and until the applicant therefor shall have posted with the Borough a performance bond in such form and with such surety as may be acceptable to the Borough and in such amount as the Borough Engineer shall deem to be reasonable.
The amount of the bond shall be determined, using as a standard the volume of topsoil to be removed, from $1,000 per 50,000 cubic yards or part thereof to a maximum of $5,000 per 50,000 cubic yards or part thereof, but in no case in an amount of less than $7,500.
The Borough Engineer shall determine the amount also taking into account the nature and extent of the work to be done; the type and character of the soil; the extent of the area over which the operations shall be conducted; the extent and depth of the various cuts and fills; the extent to which the area of operation is wooded; the proximity of proposed operations to streets, buildings, structures, natural or artificial streams or watercourses and the general drainage conditions; and such other factors as may bear on the operation. Such performance bond shall be conditioned upon the full and faithful performance by the applicant and principal within the time specified in the application of all of the proposed work in accordance with the provisions of this chapter and of the soil removal permit issued pursuant thereto.
Renewal under paragraph 22-2.9d is contingent upon renewal of bond as required in this section.
[1982 Code § 12-6.1]
The Borough Engineer is hereby designated as the officer whose duty it shall be to enforce the provisions of this chapter. He shall, upon his own initiative, and whenever directed by the Borough Council, inspect the premises for which permits have been granted to insure compliance with the terms of the permit and of this chapter. He shall immediately report all violations to the Borough Council and take such action as may be deemed necessary in the circumstances.
The Borough Engineer shall be paid for his services in carrying out his duties and responsibilities of the terms of this chapter at fees to be set forth annually in the salary ordinance of the Borough.
[1982 Code § 12-6.2]
For the purpose of administering and enforcing the provisions of this chapter, any duly authorized officer, agent or employee of the Borough shall have the right to enter into and upon any lands in or upon which such soil removal operations are being conducted in order to examine and inspect such lands and the operations thereon.
[1982 Code § 12-7]
This chapter shall not apply to the removal of soil for building excavation or for a private sewage disposal system or for landscaping, nor shall this chapter apply or be construed to include plowing, spading, cultivating, harrowing or discing of soil or in any operation usually and ordinarily associated with the tilling of the soil for agricultural or horticultural purposes. This chapter shall not be construed to include any operations for the purpose of soil and water conservation as defined or prescribed by Soil Conservation Service of the United States Department of Agriculture. Nothing contained in this chapter shall conflict with the present or any future zoning regulations of the Borough, and in the case of such a conflict, the zoning regulations shall prevail. Anything herein to the contrary notwithstanding, no permits shall be required in connection with the removal of excess soil resulting from the construction or alteration of a building, structure, or offstreet loading or parking areas on such premises and new streets, roadways or driveways and excavation or grading incidental thereto.