[HISTORY: Adopted by the Town Board of the Town of Clay 5-1-1978 by L.L. No. 14-1978. Amendments noted where applicable.]
Building construction — See Ch. 81.
This chapter shall be known and may be cited as the "Excavations Law of the Town of Clay."
It is hereby declared to be the policy of the Town of Clay to regulate and control use of land for sand, gravel, quarry, mining, and excavation operations, to prevent excessive noise, to prevent such land from being left in a hazardous state due to pits, holes, hollows, or banks, to prevent soil erosion and protect the natural vegetative cover and supply of organic material, to protect ground water supplies, to maintain the productivity and suitability of such land insofar as possible for agricultural purposes and building sites, and to protect land values. By this chapter the Town Board seeks to promote the safety, health and general welfare of the residents of the Town of Clay by removing the danger to health, safety and life of its residents caused by the creation of excessive quantities of dust, vibration, noise and other undesirable conditions; deep excavations remaining in the ground; exposure of the bare earth to wind action, and pools of water; and by possible loss of or pollution of their supply of water. At the same time, it is recognized that sand, gravel, quarry, and mining operations as defined herein are necessary and useful businesses and should be encouraged when not conflicting with the express purpose of this chapter.
As used in this chapter, unless the context or subject matter otherwise requires, the following terms shall have the meanings indicated:
- BANK EXCAVATION
- Any excavation involving the removal of more than 500 cubic feet of earth from which all water will fully drain to existing streams by gravity without artificial means.
- Sand, gravel, stone, ore, clay, common soil, peat, muck, and other minerals from the ground.
- The permanent removal of earth.
- Use of any land or other premises for the extraction of ores or stone from the earth whether by subterranean or surface digging or other process.
- PIT EXCAVATION
- Any excavation involving the removal of more than 500 cubic feet of earth leaving a hole below the grade of the surrounding land.
- QUARRY OPERATION
- The use of any land or other premises for the extraction of, cutting of, crushing, screening, washing, or processing of stone or stone-like material.
- SAND OR GRAVEL OPERATION
- The use of any land or other premises for the excavation or removal of sand or gravel therefrom; or for the crushing, screening, washing, or processing of sand or gravel in any manner thereon.
- TOWN ENFORCEMENT OFFICER
- The person designated by the Town Board to enforce this chapter.
No lands or other premises shall be operated or used for sand, gravel, quarry, mining, or excavation operations without a currently effective permit issued by the Town Board in compliance with the provisions of this chapter, unless listed as an exception in § 100-4.
The following uses and operations by an owner or lessee of premises or by his agent are hereby excepted from the application of this chapter:
Farming or construction purposes. Excavation or removal of sand, gravel, stone, ore, earth, or other minerals when such excavation or removal is necessary for the purpose of farming or for the purpose of construction of a building or structure on said property immediately after completion of the excavation.
Town operation. A sand, gravel, mining, or quarrying operation conducted by the Town of Clay shall be exempt from the requirement of obtaining of a permit under this chapter but shall comply with all regulations set forth in § 100-10 of this chapter.
Public utilities. Construction of drainage and sewage disposal systems and other public utilities.
Ponds. Construction of private farm ponds, farm ditches, and fire ponds.
Required forms and information. Before any sand, gravel, quarry, mining, or excavation operation is conducted within the Town of Clay, other than those excepted in § 100-4 of this chapter, the owner or lessee of the premises shall obtain a written permit therefor from the Town Board. For that purpose such applicant shall file with the Town Clerk of the Town of Clay on the form prescribed by the Town Board an application in duplicate for such permit, which shall set forth and include:
A detailed statement of the proposed operations; a boundary survey of the total property owned, leased, or under option by the applicant within which the proposed sand, gravel, quarry, mining, or excavation operation is to be conducted (Plan A); a plan of the area proposed for excavation or removal of sand, gravel, stone, ore, earth, or other minerals showing contours at not less than two-foot intervals using United States Geological Survey datum before operations are commenced (Plan B); and a plan of the proposed conditions of the said area after the work is completed (Plan C). Such plans shall be prepared by a licensed professional engineer or land surveyor; shall be drawn to scale and shall show all streets or roadways adjoining the property outlined on Plan A, the location of any buildings within the property outlined on Plan A, and within 300 feet of the outside boundaries of the area outlined on Plan B, and the proposed location of any facilities for crushing, screening, washing, or processing of sand, gravel, stone, ore, earth, or other minerals. The proposed plan of rehabilitation (Plan C) shall set forth the ultimate contours and grades of the area upon completion of any excavations, describing the areas to be rehabilitated and landscaped, and shall specify the amount and extent thereof to be performed on or before the expiration of the permit applied for.
A duly acknowledged consent in writing of the owner of the premises and mortgagee, if any, including his or their addresses.
Receipted tax bills, or photostatic copies thereof or a letter signed by the Receiver of Taxes of the Town of Clay or by the Commissioner of Finance of Onondaga County or by any title insurance, abstract or searching company authorized to do business in Onondaga County, certifying that all taxes and assessments against the property described in the application have been paid.
The existing ground water level at the location proposed for the operations.
Methods of compliance. Such application shall set forth acceptable methods of compliance with all requirements of this chapter as well as compliance with such additional conditions as may be determined by the Town Board.
Town Board action; referral to Planning Board. After reviewing the application the Town Board may require additional information or waive any of the foregoing requirements where deemed necessary. All applications for permits under this chapter shall be forwarded by the Town Board to the Planning Board for review and a report and recommendation thereon. Within 30 days after the forwarding date, the Planning Board shall submit its report and recommendation to the Town Board in writing. If such Planning Board fails to report within such period of 30 days or such longer period as may have been agreed by it and the Town Board, the Town Board may act thereon without such report.
Initial application; renewals; notice. No permit authorizing operations regulated by this chapter shall be issued for the first time under this chapter until after a public hearing by the Town Board in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard, except those operations existing at the time of the adoption of this chapter with an approved rehabilitation plan which have posted a performance bond or other security. Public hearings shall not be held on renewals or amendments of permits previously issued under this chapter unless the area covered by the renewal extends beyond the area of operations previously authorized, or unless the operations are to be expanded during the renewal period in excess of any limitations or conditions imposed by the Town Board in the original permit. Notice of the time and place of such hearing shall be published in the newspaper designated for official town notices not less than 10 days nor more than 20 days before the hearing.
Investigation and report by Town Enforcement Officer. Before the hearing, the Town Enforcement Officer shall investigate the facts and circumstances relating to the application and submit his report thereon in writing to the Town Board, which report shall be read at the hearing or made available for public inspection during the hearing. Nothing contained herein shall be deemed to limit the powers conferred upon the Town Board including its powers to make findings or to proceed if the Town Enforcement Officer fails to submit a report within the time as provided.
Issuance. Permits may be issued or amended by the Town Board upon compliance by the applicant with the provisions of this chapter and subject to any additional conditions imposed by the Town Board.
Term. The original permit so issued shall remain in effect until the following May 1.
Renewals. Permits in the form originally granted shall be renewed thereafter for successive periods of one year upon filing an application for renewal on the form provided by the Town Board, and payment of the annual permit fee. When required by the Town Board, the applicant, upon obtaining a renewal permit, shall furnish additional bond or security in an amount approved by the Town Board as sufficient to ensure performance of the approved plan of rehabilitation.
Transfer. The permit may be transferred during the permit period to a new owner of the operation only with the consent of the Town Board, and no hearing need be held thereon.
Required; default; notice. Before the issuance of a permit, the Town Board may require the applicant and the owner of record of the premises to execute and file with the Town Clerk a surety company bond in an amount to be fixed by the Town Board, conditioned upon the faithful and punctual performance of the work required to be performed by the approved plan of rehabilitation on the area covered by the permit and equal to the cost of taking over such performance in case of default. In case of any default or failure to perform the work required to be performed and to furnish the materials required to be furnished by said approved plan of rehabilitation at or before the times specified in the schedule of progress approved in connection therewith, such bond shall be forfeited upon written notice of such default or failure being mailed by certified mail return receipt requested to the permittee at the address stated in the application and upon failure by the permittee to cure such default within 20 days after the mailing of such notice. The 20 days' notice of such default or failure of performance may be given at any time after such default or failure of performance, and no default or failure of performance shall be deemed waived or excused by any delay or failure to mail notice thereof or by any subsequent renewal of a permit under this chapter.
Release. Said bond shall remain in full force and effect until released or until the original amount thereof is reduced by the Town Board upon issuance of a certificate of completion or of partial completion by the Town Enforcement Officer, certifying that the provisions of the permit relating to rehabilitation have been substantially complied with. When required by the Town Enforcement Officer, application for such certificate shall be accompanied by a certification prepared by a duly licensed professional engineer or land surveyor of the State of New York certifying as to the amount of topsoil or strippings respread upon ground required to be respread with topsoil or strippings and that such area has been seeded in compliance with this chapter, and that the other conditions of the approved plan of rehabilitation have been fulfilled.
Cash deposit. In lieu of such bond, a cash deposit or deposit of negotiable securities may be made with the Town Supervisor, subject to the approvals, conditions, and forfeitures specified hereinabove in the case of a bond.
Transfer of permit. In the event of a transfer of the permit as provided in § 100-7 hereof, the new owner shall either continue the existing bond by filing a certificate with the Town Board from the surety consenting to such continuance, or file a new bond or cash deposit in such amount as may be fixed by the Town Board.
Permit fees shall be as provided in Chapter 105, Fees.
All sand, gravel, quarry, mining, or excavation operations licensed hereunder shall comply with the following regulations:
Hours; noise. Unless specifically permitted by the Town Board, no operation referred to in this chapter shall be conducted after 7:00 p.m. or before 7:00 a.m. local time nor at any time on Sunday. All operations shall be conducted without unnecessary noise. All equipment used shall be equipped with mufflers.
Fencing. Whenever required by the Town Board as necessary for the protection of the public, barriers, consisting of wire fencing of a type known as "chain link" or "cyclone fence," or other types of fencing, as approved by the Town Board, of such height as shall be specified by the Town Board as necessary for the protection of the public considering the particular circumstances of the terrain and location, substantially erected and with no opening except necessary gates for ingress and egress, shall be erected and maintained to prevent public access to the area of any operation permitted hereunder or any part thereof. All gates shall be closed and locked at all times except during the working hours of such operation, when the permittee or his agent or employees shall be within. In addition to the foregoing, all settling ponds or other flooded excavation shall be surrounded with fences of appropriate height for the protection of the public.
Operating near property line or street. At no time shall any sand, gravel, quarry, mining, or excavation operation permitted herein be conducted any nearer to any property line than 50 feet or the boundary line of any street or roadway than 200 feet.
Safety; slopes. All operations permitted hereunder shall be conducted in a safe manner and all slopes shall be excavated and maintained at safe angles to prevent collapse of ground surfaces above such slopes. Final slopes shall not be inclined steeper than one foot vertical on a two foot horizontal; provided, however, that where excavation to such final slopes is impractical due to the nature of the material or of the operations, the Town Board may permit a suitable alternate such as benching or collapsing excavation faces.
Dust. A dust-preventive layer shall be spread on private access roads and other traveled roadways within every pit or excavation where required to protect the public and country-side against windblown sand and dust.
Topsoil removal. Topsoil or strippings removed in connection with operations regulated by this chapter shall not be removed from the premises and shall be preserved for use in connection with the rehabilitation; provided, however, that any excess topsoil or strippings may be removed. Excess is any topsoil or strippings in excess of that required to allow a uniform cover of strippings and a cover of topsoil at least four inches deep over any area on which topsoil is required to be respread by this chapter.
Respreading of topsoil. Topsoil or strippings set aside and preserved for use in accordance with Subsection F of this section shall be respread upon the surface of the land from which the earth has been excavated in accordance with the rehabilitation plan. Areas which are laid out as streets, parking lots, or areas to be occupied by buildings on a subdivision plot approved by the Town Planning Board may, at the discretion of the Town Board, be excepted from this requirement.
Grading. Upon completion of any separable excavation operation regulated by this chapter, the excavation area shall be graded as specified in the approved plan of rehabilitation.
Access roads. Access roads at all points, including but not limited to the main entrance and exit, shall be at least 200 feet from any existing residence or public building.
Vehicles. All vehicles hauling materials from any operation permitted hereunder shall be loaded in such manner as not to spill materials on public highways. All vehicles shall be required to come to a complete stop before leaving the premises.
Fill. All materials used as fill shall be free from garbage, refuse, offal, combustible or any deleterious or unwholesome matter unless specifically approved by the Town Board.
Seeding. All areas on which topsoil or strippings have been respread as required hereinabove shall be prepared for, seeded and maintained with grass unless other vegetation or planting with vines or other covering is specified in an approved plan of rehabilitation.
Private wells, interference with. No excavation shall be carried on in such manner as will adversely affect private wells on adjoining lands.
Support; drainage interference with. No removal of earth from the ground shall be so made as to undermine, weaken, or deprive of support other lands in the vicinity, or to substantially obstruct, impede, or change the course of or the natural movement or flow of surface or subsurface water thereon or therein, or otherwise adversely affect any public waterway or public body of water or any waterway or body of water which is used as a part of any public drainage system.
Location of crushers, etc. All facilities for the crushing, screening, washing or processing of sand, gravel, stone, ore, earth or other minerals shall be located only in areas approved by the Town Board.
Pit excavations. No pit excavation shall be carried on so that any water accumulates in the bottom thereof, excepting stormwater accumulations. In the case of existing accumulations of water other than stormwater, no earth removal operations shall be carried on until such holes have been filled with earth and the accumulations of water eliminated except ponds of water actively used in the processing of sand and gravel which ponds shall be adequately fenced at all times until the termination of operations at which time the pond shall be refilled and graded.
Excavation depth. The bottom of any bank excavation shall not be dug to a point lower than will permit the gravity flow and drainage of all water therefrom into existing channels without artificial means of discharge except ponds not exceeding two feet in depth designed for fire protection, irrigation, or public water supply purposes.
Discharge of firearms. No person shall shoot or discharge any firearm within or into any excavation.
If the Town Board shall determine upon the request of an applicant for a permit that no substantial rehabilitation of the premises shall be necessary as a result of the proposed operations, or on any application pertaining to an operation in existence at the time of the enactment of this chapter, or whenever the applicant shall satisfy the Town Board that hardship or practical difficulty shall exist, the Town Board, in its discretion, may waive any or all of the requirements of this chapter by resolution.
The holder of a permit to conduct a sand, gravel, quarry, mining, or excavation operation shall cause the outside perimeter of the premises on which such operation is conducted to be posted with appropriate notices having dimensions of not less than 11 inches square containing the following language in bold print: "No trespassing - these premises are licensed pursuant to a local law of the Town of Clay regulating sand, gravel, quarry, mining, and excavation operations. Unauthorized entry upon these premises constitutes an offense punishable by a fine not exceeding $250 or imprisonment for not more than 15 days, or both."
Such notices shall be posted not farther apart than 300 feet and shall be posted adjacent to and on both sides of each entrance into the premises on which such operation is being conducted.
Entry prohibited; exceptions. No person other than those lawfully engaged in the operations thereon, or the Town Enforcement Officer, or any authorized town representative shall enter on any premises posted as prescribed herein and for which a permit has been issued in accordance with the provisions of this chapter.
Whenever an alleged violation of this chapter occurs, any person may file a complaint in regard thereto with the Town Enforcement Officer who shall investigate the same and report thereon to the Town Board.
Established. Any person, firm or corporation who violates any of the provisions of this chapter or who knowingly permits, takes part, or assists in any such violation shall be guilty of a violation of this chapter, punishable by a fine not exceeding $250 or imprisonment not exceeding 15 days, or both.
Injunctive action. In addition to the above-provided penalties and punishments or in lieu thereof, an action or proceeding may be brought in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of this chapter.
If the Town Enforcement Officer or any authorized representative of the Town of Clay finds that any operation permitted hereunder is not being conducted in accordance with the provisions of this chapter, a notice in writing shall be served upon the holder of the permit, directing that the conditions therein specified be remedied within five days after the date of service of such notice. If such conditions are not corrected after the expiration of said five-day period, the Town Board may cause a notice in writing to be served upon the holder of said permit requiring the holder of the permit to appear before the Town Board at a time to be specified in such notice and show cause why such permit should not be revoked or suspended. The Town Board may, after hearing at which testimony of witnesses may be taken and the holder of the permit permitted to be heard, revoke or suspend such permit if the Town Board shall find that said operation is not being conducted in accordance with the provisions of this chapter.