[HISTORY: Adopted by the Town Board of the Town of Clay 5-1-1978
by L.L. No. 14-1978. Amendments noted where applicable.]
GENERAL REFERENCES
Building construction — See Ch. 81.
A.
This chapter shall be known and may be cited as the "Excavations
Law of the Town of Clay."
B.
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:
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.
Any excavation involving the removal of more than 500 cubic feet
of earth leaving a hole below the grade of the surrounding land.
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.
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.
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:
A.
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.
B.
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.
C.
Public utilities. Construction of drainage and sewage
disposal systems and other public utilities.
D.
Ponds. Construction of private farm ponds, farm ditches,
and fire ponds.
A.
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:
(1)
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.
(2)
A duly acknowledged consent in writing of the owner of
the premises and mortgagee, if any, including his or their addresses.
(3)
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.
(4)
The existing ground water level at the location proposed
for the operations.
B.
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.
C.
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.
A.
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.
B.
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.
A.
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.
B.
Term. The original permit so issued shall remain in effect
until the following May 1.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
D.
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:
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
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.
L.
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.
M.
Private wells, interference with. No excavation shall
be carried on in such manner as will adversely affect private wells on adjoining
lands.
N.
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.
O.
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.
P.
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.
Q.
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.
R.
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.
A.
Notice.
(1)
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."[1]
(2)
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.
B.
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.
A.
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.[1]
B.
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.
