Derry City Zoning Code
ARTICLE XI
Earth Removal Regulations
§ 165-81 Authority and purpose.
Chapter 155-E of the New Hampshire Revised Statutes Annotated requires that, with several exceptions, all mining and excavation operations in the state obtain prior approval and permit from the municipality in which the operation is to occur. The purpose of the statute and of these regulations is to minimize safety hazards created by open excavations; to safeguard the public health and welfare; to preserve our natural assets of soil, water, forests and wildlife; to maintain aesthetic features of our environment; to prevent land and water pollution; and to promote soil stabilization.
§ 165-82 Definitions.
As used in this article, the following terms shall have the meanings indicated:
Any person whose property is located in New Hampshire and adjoins or is directly across the street or stream from the land under consideration. For purposes of receiving testimony only, and not for purposes of notification, the term "abutter" shall include any person who is able to demonstrate that his land will be affected by the proposal under consideration. For purposes of receipt of notification by the municipality of a public hearing, in the case of an abutting property being under a condominium or other collective form of ownership, the term "abutter" means the officers of the collective or association, as defined in RSA 356-B:3, XXIII.
A completed application for an excavation permit. An application shall not be considered complete until all of the excavation application checklist items have been completed and accepted to the satisfaction of the regulator, in addition to any other requirements of this chapter or any other ordinance or other regulations of the Town of Derry.
Any use of any earth material for sale or resale on or off the site of the excavation area. In addition, an excavation shall be considered commercial if earth materials are transported to other land whose ownership is different than the ownership of the land from which the earth was excavated. Excavations which use earth materials in the processing of other material, such as, but not limited to, concrete, asphalt and other building materials, shall be considered commercial.
Rock that is cut, shaped, or selected for use in blocks, slabs, sheets, or other construction units of specified shapes or sizes and used for external or interior parts of buildings, foundations, curbing, paving, flagging, bridges, revetments, or for other architectural or engineering purposes. Dimension stone includes quarry blocks from which sections of dimension stone are to be produced. Dimension stone does not include earth as defined in this section.
Sand, gravel, rock, soil or construction aggregate produced by quarrying, crushing or any other mining activity or such other naturally occurring unconsolidated materials that normally mask the bedrock.
The area within an excavation site where excavation has occurred or is eligible to occur under the provisions of these regulations which is used, or has been used, for the commercial taking of earth, including all slopes.
Any area of contiguous land in common ownership upon which excavation takes place.
The Planning Board of the Town of Derry.
§ 165-83 Permit required; exceptions.
No owner shall permit any excavation of earth on his premises without first obtaining a permit therefor, except as follows:
A.
Existing excavations. The owner of an excavation which lawfully existed as of August 24, 1979, from which earth material of sufficient weight or volume to be commercially useful has been removed during the two-year period before August 24, 1979, may continue such existing excavation of the excavation site without a permit, subject to the following:
(1)
Such an excavation site shall be exempt from the provisions of local zoning, provided that, at the time the excavation was first begun, it was in compliance with any local ordinances and regulations that may have been in effect.
(2)
Such an excavation area may not be expanded, without a permit under these regulations, beyond the limits of the Town of Derry and the area which, on August 24, 1979, and at all times subsequent thereto, has been contiguous to and in common ownership with the excavation site on that date and appraised and inventoried for property tax purposes as part of the same tract as the excavation site as of that date, as modified by the limitations of § 165-86A through D, inclusive. The term "contiguous" means land whose perimeter can be circumscribed without interruption in common ownership, except for roads or other easements, in the Town of Derry.
(3)
When such excavation is not allowed in that location by the Town of Derry Zoning Ordinance in effect on August 4, 1989, or when the Zoning Ordinance allows such excavation only by special exception, expansion may be restricted or modified with conditions by order of the regulator if, after notice to the owner and a hearing, the regulator finds that such expansion will have a substantially different and adverse impact on the neighborhood.
(5)
The owners or operators of any existing excavation area for which no permit has been obtained under these regulations and for which an excavation report, as required by RSA 155-E:2, I(d), was not filed with the regulator by August 4, 1991, shall be determined to be abandoned per Subsection B(1)(c) of this section. The excavation report shall contain the following information:
(a)
The location of the excavation by tax map and parcel number;
(b)
The date the excavation first began;
(c)
A description of the limits of permissible expansion as described in Subsection A(2) which are claimed to apply to the excavation;
(d)
An estimate of the area which has been excavated to date; and
(e)
An estimate of the amount of commercially viable earth materials still available on the parcel.
(6)
The exemption from local zoning or site location regulations as stated in Subsection A(1) shall include the quarrying or crushing of bedrock for the production of construction aggregate; provided, however, that no owner shall permit any such quarrying or crushing of bedrock to occur for the first time on any excavation site without first obtaining a permit therefor under these regulations.
B.
Abandoned excavations. The permit and zoning exemptions under this section shall not apply to any abandoned excavation, as defined in Subsection B(1) below.
(1)
For purposes of this Subsection B, any excavation, except for excavations or excavation sites described in Subsection C of this section, whether subject to a permit under these regulations or not, for which the affected area has not yet been brought into complete compliance with the reclamation standards of these regulations shall be deemed abandoned if:
(a)
No earth material of sufficient weight or volume to be commercially useful has been removed from that excavation site during any two-year period either before, on, or after August 4, 1989; provided, however, that before the end of such two-year period the owner or operator may extend the period by submitting to the regulator a reclamation timetable to be approved by the regulator and by posting a bond or other security with the Town Treasurer, in a form and in an amount prescribed by the regulator, sufficient to secure the reclamation of the entire excavation site in accordance with the reclamation standards contained in these regulations;
(b)
The excavation site is in use and is not an excavation or excavation site as described in Subsection C of this section but does not conform to the incremental reclamation standards of these regulations, or the owner or operator has not posted a bond or other security and submitted a reclamation timetable to be approved by the regulator as described in Subsection B(1)(a); or
(2)
In addition to the enforcement remedies provided in § 165-97, the regulator may order the owner of any land upon which an abandoned excavation is located to either file a reclamation timetable, to be approved by the regulator, and bond or other security as described in Subsection B(1)(a) above or to complete reclamation in accordance with these regulations within a stated reasonable time. Such an order shall only be made following a hearing for which notice has been given in accordance with § 165-91, if the regulator finds that the public health, safety, or welfare requires such reclamation. If the owner fails to complete the reclamation within the time prescribed in the order, the regulator may cause the reclamation to be completed at the expense of the Town. The Town's costs shall constitute an assessment against the owner and shall create a lien against the real estate on which the excavation is located. Such assessment and lien may be enforced and collected in the same manner as provided for real estate taxes.
(3)
The site of an excavation which ceased commercially useful operation prior to August 24, 1977, but for which the affected area has not been brought into compliance with the reclamation standards of these regulations may be made subject to the remedy prescribed in Subsection B(2) only if the regulator finds, in writing, that specified reclamation measures are necessary to eliminate or mitigate an identified hazard to public health and safety.
C.
Stationary manufacturing plants.
(1)
No permit shall be required under these regulations for excavation from an excavation site which, on August 4, 1989, was contiguous to or was contiguous land in common ownership with a stationary manufacturing and processing plant which was in operation as of August 24, 1979, and which used earth obtained from such excavation site. Such excavation shall be performed in compliance with the operational and reclamation standards as expressly set forth in §§ 165-86 through 165-88 inclusive of these regulations, which express standards shall be the sole standards with which such excavations must comply in order to retain their non-permit status as provided under this subsection. Loss of such non-permit status shall be preceded by written notice from the regulator that the excavation is not in compliance and the owner shall have failed to bring such excavation into compliance within 30 days of receipt of such notice. Such excavation may be expanded without a permit under these regulations to any contiguous lands which were in common ownership with the site of the plant on August 4, 1989, except as limited by § 165-86A through E, inclusive.
(2)
No further permit shall be required under these regulations for excavation from a site which, on August 4, 1989, was contiguous to or was contiguous land in common ownership with a stationary manufacturing and processing plant for which a local or state permit has been granted since August 24, 1979, and before August 4, 1989, which uses earth obtained from such site. It is further provided that its operation and reclamation shall continue to be regulated by such local or state permits and any renewals or extensions thereof by the permitting authority or authorities.
D.
Highway excavations. No permit shall be required under these regulations for excavation which is performed exclusively for the lawful construction, reconstruction, or maintenance of a Class I, II, III, IV, or V highway by a unit of government having jurisdiction for the highway or by an agent of the unit of government which has a contract for the construction, reconstruction, or maintenance of the highway, subject, however, to the following:
(1)
A copy of the pit agreement executed by the owner, the agent, and the governmental unit shall be filed with the regulator prior to the start of excavation. The failure to file such agreement, or the failure of the excavator to comply with the terms of such agreement, shall be deemed a violation of these regulations and may be enforced pursuant to § 165-97.
(2)
Such excavation shall not be exempt from this chapter, or other applicable ordinances, unless such an exemption is granted pursuant to Subsection D(3) below, or from the operational and reclamation standards as expressly set forth in §§ 165-86 through 165-88, inclusive, of these regulations, which express standards shall be the sole standards with which such excavations must comply in order to retain their non-permit status as provided under this Subsection D. Before beginning such excavation, the governmental unit or its agents shall certify to the regulator that:
(b)
The excavation shall not be within 50 feet of the boundary of a disapproving abutter or within 10 feet of the boundary of an approving abutter, unless requested in writing by said approving abutter;
(c)
The excavation shall not be within 150 feet of any dwelling which either existed or for which a building permit has been issued at the time the excavation is commenced;
(d)
The excavation shall not be unduly hazardous or injurious to the public welfare;
(e)
Existing visual barriers to public highways shall not be removed, except to provide access to the excavation;
(f)
The excavation shall not substantially damage a known aquifer, so designated by the United States Geological Survey; and
(g)
All required permits for the excavation from state or federal agencies have been obtained.
(3)
The New Hampshire Department of Transportation or its agent may apply directly to the appeals board created under RSA 21-L to be exempted from the provisions of this chapter or other ordinances or regulations with respect to the excavation or transportation of materials being used exclusively for the lawful construction, reconstruction, or maintenance of a Class I, II, or III highway.
(a)
The application shall state whether the applicant has requested any exceptions or variances which may be available at the local level and shall describe the outcome of such requests.
(b)
Prior to acting on the application, the board shall hold a hearing in the Town of Derry. At least seven days prior to such hearing, notice shall be published in a newspaper of general circulation in the Town and shall be sent by certified mail to the applicant, the Chair of the Planning Board and the Conservation Commission and, if the proposed exemption concerns an excavation site, to the abutters of that site as defined in § 165-82.
(c)
Following the hearing, the board shall issue a written decision, copies of which shall be mailed to the applicant and the parties to whom notice was sent. If an exemption is granted, the written decision shall include:
[1]
A statement of the precise section of the ordinance or regulation from which the applicant is exempted. The applicant shall not be exempt from any section or provisions not so listed.
[2]
An identification of the public interest being protected by the ordinance or regulation.
[3]
A statement of the state interest involved and of why, in the opinion of the board, the state interest overrides the interest protected by the ordinance or regulation.
[4]
Any conditions to be imposed on the applicant to protect the public health, safety, or welfare.
E.
Other exceptions.
(1)
The following additional excavation activities are exempt from the permit requirements of these regulations:
(a)
Excavation that is exclusively incidental to the lawful construction or alteration of a building or structure or the construction or alteration of a parking lot or way, including a driveway on a portion of the premises where the removal occurs; provided, however, that no such excavation shall be commenced without a permit under these regulations unless all state and local permits required for the construction or alteration of the building, structure, parking lot, or way have been issued.
(b)
Excavation that is incidental to agricultural or silvicultural activities, normal landscaping or minor topographical adjustment.
(c)
Excavation from a granite quarry for the purpose of producing dimension stone, if such excavation requires a permit under RSA 12-E.
(2)
A person owning land abutting a site which was taken by eminent domain or by any other governmental taking upon which construction is taking place may stockpile earth taken from the construction site and may remove the earth, at a later date, after giving written notification to the regulator of the intent to remove the stockpiled earth.
§ 165-84 Permit application.
A.
Any owner or owner's designee subject to these regulations shall, prior to excavation of his land, apply to the regulator for an excavation permit and submit a reclamation plan. A copy of the application shall also be submitted to the Town of Derry Conservation Commission. The application shall be signed and dated by the applicant and shall contain at least the following information in addition to that required by the excavation application checklist and other applicable regulations:
(1)
The name and address of the owner of the land to be excavated.
(2)
The name and address of the person who will actually do the excavating.
(3)
The names and addresses of all abutters to the premises which will be excavated.
(4)
An excavation plan at a scale of no less than one inch equals 100 feet and showing the area to be excavated, appropriate buffers, and any dwelling units, septic systems, and wells within 150 feet of the perimeter of the area to be excavated. All plans submitted to the regulator shall comply with the erosion and sedimentation control provisions of Chapter 170, Land Development Control Regulations. All plans submitted shall be of a quality that they are easily understood and of an accuracy that compliance can easily be checked. At least six copies of the final plans shall be filed with the regulator prior to the issuance of a permit. The excavation plan shall include:
(a)
The tax map and number of the parcel to be excavated;
(b)
The seal and signature of a land surveyor or professional engineer registered in the State of New Hampshire;
(c)
Existing topography of the site and within 100 feet thereof at contour intervals of two feet, based on a permanent assumed benchmark;
(d)
Proposed topography of the site and within 100 feet thereof at two-foot contour intervals at the completion of excavation and restoration;
(e)
The number of acres involved in the project;
(f)
The volume of material to be removed;
(g)
The breadth, depth and slope of the proposed excavation (and existing excavation where applicable);
(h)
The estimated time of duration and description of phasing of the project;
(i)
Existing vegetation;
(j)
All surface drainage patterns, including wetlands and standing water, lakes, streams, and the like;
(k)
Location of all easements on and below the ground;
(l)
Names, locations, widths and elevations of all public and private roads, access drives and rights-of-way on and adjacent to the excavation site;
[Amended 6-5-2007]
(m)
A log of borings or test pits that extend to either the seasonal high water table, ledge, or a minimum of six feet below the maximum proposed excavation depth, including location and soils data;
(n)
The location and extent of any stone walls, ledge outcroppings, wells, existing buildings, septic systems, utilities, significant natural and man-made features, and the like;
(o)
A locus map, at a scale of one inch equals 1,000 feet, showing the proposed operation in relation to existing roads;
(p)
Any existing and all proposed excavation areas;
(q)
Any existing and all proposed accessory facilities/activities;
(r)
Existing and proposed access drives and private roads, including widths and surface materials;
[Amended 6-5-2007]
(s)
Existing and proposed fencing, buffers or visual barriers, including heights and materials;
(t)
Storage areas for topsoil to be used in reclamation;
(u)
All measures to control erosion, sedimentation, water and air pollution, and hazards to human safety;
(v)
The locations of existing buildings, structures, septic systems and wells on abutting properties within 150 feet of the property boundary;
(w)
The locations of all driveways and road intersections within 200 feet of the property boundary;
(x)
Aquifer locations and limits as identified by the United States Geological Survey and other acceptable sources; and
(y)
Zoning districts on and within 150 feet of the property.
(5)
A reclamation plan, including a timetable therefor, at the same scale as the excavation plan, and covering the same area. All plans submitted to the regulator shall comply with the erosion and sedimentation control provisions of Chapter 170, Land Development Control Regulations. All plans submitted shall be of a quality that they are easily understood and of an accuracy that compliance can easily be checked. At least six copies of final plans shall be filed with the regulator prior to the issuance of a permit. The reclamation plan shall include:
(a)
The seal and signature of a professional engineer or land surveyor registered in the State of New Hampshire;
(b)
All boundaries of the area proposed for reclamation;
(c)
The final topography of the area proposed for reclamation;
(d)
Final surface drainage patterns, including the locations and physical characteristics of all drainage facilities;
(e)
A schedule of vegetative and temporary reclamation activities, including seeding mixtures, mulching materials, fertilizer types, lime and application rates;
(f)
Soil conditioning specifications, i.e., liming and fertilizing required based on soils analysis performed by the University of New Hampshire or other equivalent organization;
(g)
The plant materials to be used in the restoration and their quantities and sizes;
(h)
The subsequent reuse of the site, if known;
(i)
Cross-sectional views showing existing, excavated and restored topographic configuration;
(j)
An erosion and sedimentation control plan, regardless of the size of the excavation area;
(k)
Such other information as the regulator may reasonably require.
(6)
Copies of related permit approvals and other documents pertinent to the excavation proposal, such as the Water Supply and Pollution Control Division (RSA 485-A:17 and RSA 148:5-a), the Wetlands Board (RSA 482-A), stump disposal, New Hampshire Department of Transportation (RSA 249:13-18, access permit), and any other permits required by state or federal regulations.
(7)
Hauling information, including routes to be utilized, the type and weight of motor vehicles involved, and the frequency and schedule of operations of such vehicles, shall be provided to the regulator prior to the issuance of an excavation permit. The regulator may require modifications to such plans and/or may place conditions upon such operations, depending on surrounding land uses and road conditions. The regulator reserves the right to conduct a traffic study at the applicant's expense to ensure that public safety, neighborhood compatibility and road capacity and condition have been properly considered and addressed in the hauling plan.
(8)
Statements of specific actions to be taken by the applicant on the excavation site relative to fuel and chemical handling and storage, dust control, traffic, noise control and abatement, and comprehensive site safety of unauthorized persons.
(9)
Proof that written notice of the proposed excavation has been given to the holders of any mortgages on the property and, if the applicant is not the owner, proof that written notice of the proposed excavation has been given to such owner and that the owner has agreed to allow such excavation.
(10)
A written statement from the Tax Collector of the Town of Derry (on a form to be furnished and prescribed by the Planning Board) certifying that all current taxes levied against the property have been paid in full and that there are no unreleased tax liens encumbering said property.
(11)
All application fees as per the excavation application form.
(12)
Such other information as the regulator may reasonably require.
B.
Additional permit requirements.
(1)
No excavation of a new area or expansion of an existing area shall exceed five acres in size at any one time. Any permitted excavation shall be reclaimed according to the approved application within one year after the permit expiration date. If reclamation is not completed within one year after the permit expiration date, the Town may declare part or all of the bond forfeited and use these moneys to reclaim the site.
(2)
If an existing excavation in operation at the time of the adoption of these regulations cannot be restored within one year, no additional new excavation into an undisturbed area shall be permitted until the existing excavated area has been restored in accordance with these regulations.
(3)
The applicant shall be responsible for a proportionate share of the cost of refurbishing any existing public road(s) which access the excavation site and for the repair of Town-maintained roads which are damaged as a result of hauling earth from the site. The regulator may require these costs to be bonded prior to the granting of a permit to excavate.
[Amended 6-5-2007]
(4)
No solid and/or hazardous waste, septage, dredge spoils, or organic waste and debris shall be disposed of on the excavation site unless specifically authorized and/or permitted by the appropriate local, state or federal authority.
§ 165-85 Prohibited projects.
The regulator shall not grant a permit:
B.
For any excavation to occur within 50 feet (measured horizontally) of the boundary of any disapproving abutter or within 10 feet (measured horizontally) of the boundary of any approving abutter unless written approval is requested by said abutter. The term "disapproving abutter," as used in these regulations, shall be considered to be one who has not filed a written request with the regulator to allow an excavation within 50 feet of his property line.
C.
When the excavation is not permitted by this chapter or other applicable ordinance;
D.
When the issuance of the permit would be unduly hazardous or injurious to the public welfare;
E.
When the excavation would substantially damage a known aquifer, so designated by the United States Geological Survey;
F.
When the excavation requires land use permits from state or federal agencies, but the regulator may approve the application when all necessary land use permits have been obtained;
H.
Where existing visual barriers to public highways would be removed, except to provide access to the excavation.
§ 165-86 Operational standards.
It shall be a violation of these regulations for any person to excavate, or for any owner to permit excavation on his excavation site, when such excavation is subject to a permit under these regulations, without complying with the following minimum standards or, when such excavation is not subject to a permit under these regulations pursuant to § 165-83, without complying with the following express standards:
A.
No excavation shall be permitted below road level within 50 feet of the right-of-way of any public highway as defined in RSA 229:1 unless such excavation is for the purpose of said highway.
B.
No excavation shall be permitted within 50 feet of the boundary of a disapproving abutter or within 10 feet of the boundary of an approving abutter. Any abutter who does not submit a written request for approval of an excavation to occur within 10 feet of his/her property boundary shall be considered a disapproving abutter.
C.
No excavation shall be permitted closer than 150 feet to an existing dwelling or to a dwelling for which a building permit has been issued at the time the excavation is begun.
D.
No excavation shall be permitted within 75 feet of any great pond, navigable river, or any other standing body of water 10 acres or more in area or within 25 feet of any other stream, river, or brook which normally flows throughout the year, or any naturally occurring standing body of water less then 10 acres, prime wetland as designated in accordance with RSA 482-A:15, I, or any wetland greater than five acres in area as defined by the Wetlands Board.
F.
Natural vegetation adjacent to neighboring properties on which excavation is not intended shall be maintained for the purposes of erosion control, screening, noise reduction, and property valuation. The regulator shall have the authority to require additional screening (e.g., vegetation or fencing) where necessary.
G.
Appropriate erosion, sedimentation, air and water quality control measures shall be integrated into the excavation process. Excavations shall comply with the erosion and sedimentation control provisions in Chapter 170, Land Development Control Regulations.
H.
Excavation practices which result in continued siltation of surface waters or any degradation of water quality of any public or private water supplies are strictly prohibited.
I.
Drainage shall be maintained so as to prevent the accumulation of freestanding water for prolonged periods.
J.
No fuels, lubricants, or other toxic or polluting materials or chemicals shall be stored on site unless done so in compliance with state and federal laws and regulations pertaining to such materials.
K.
Where the depth of the excavation will exceed 15 feet and temporary slopes will exceed a grade of 1:1, a fence or other suitable barricade shall be erected to warn of danger or to limit access to the site.
L.
Topsoil shall be stripped from the excavation area and stockpiled for use in subsequent reclamation of the site. It shall be protected from erosion (e.g., by seeding, covering, or other acceptable practices). No topsoil shall be removed from the site without first obtaining specific written approval from the regulator.
M.
Prior to the removal of topsoil or other overburden material from any land area that has not yet been excavated, the excavator shall file a reclamation bond or other security as prescribed by the regulator sufficient to secure the reclamation of the land area to be excavated.
N.
All temporary structures and processing machinery required during excavation operations shall be removed from the site within 30 days after such operations cease.
O.
Start-up and shutdown times for all machinery associated with an excavation operation shall be determined by the regulator. Such times shall be reasonable with respect to the type of operation proposed and the character of the neighborhood in which it is located.
P.
All vehicles transporting excavated material shall utilize adequate covering and/or sideboards to prevent dust and spillage when loaded.
Q.
All proposed access drives or private roads leading to the excavation site shall intersect existing streets and roads at locations that have been duly approved by appropriate state or local officials and in a manner that will not endanger the safety of highway users and local residents. The provisions of RSA 249:1318 (highway access) shall be adhered to by the applicant and shall be shown on the excavation plan.
[Amended 6-5-2007]
R.
Permit approval shall be conditioned on compliance by the applicant with street and highway regulations promulgated by federal, state and local authorities.
S.
No excavation shall substantially damage any aquifer identified on mapping by the United States Geological Survey. The regulator shall determine whether or not substantial damage to the aquifer will be incurred by considering the following criteria:
(1)
The excavation shall not detrimentally affect the quality of the groundwater contained in the aquifer by directly contributing to pollution or by increasing the long-term susceptibility of the aquifer to potential pollutants.
(2)
The excavation shall not cause a significant reduction in the long-term volume of water contained in the aquifer or in the storage capacity of the aquifer.
(3)
The regulator may require that the applicant provide data or reports, prepared by a professional groundwater consultant, which assess the potential for aquifer damage that could be caused by the proposed excavation project.
T.
The applicable state statutes and regulations pertaining to forest practice and timber harvesting shall apply to the removal of vegetative cover at the excavation site.
U.
No processing machinery shall be erected or maintained on the lot within 300 feet of any property line.
V.
Excavation operations shall be set back at least 25 feet from wetlands (as defined in this chapter), and the applicant must demonstrate that no sedimentation or drainage of the wetlands will occur as a result of the excavation. The regulator shall have the authority to require greater wetlands setbacks in situations where the regulator can demonstrate that the greater setback will be required in order to protect the wetlands from degradation due to the proposed excavation operation.
W.
For excavation projects which require a permit from the Water Supply and Pollution Control Division pursuant to RSA 485-A:17, the provisions of that statute, and the rules adopted thereunder, shall supersede the provisions of this section.
X.
Nothing herein contained shall be construed as to forbid the creation of a lake or pond, provided that adequate provision has been made for the runoff of water in such manner as will not damage or interfere with the use of any road, highway, access drive or abutting property, and further provided that such lake or pond shall be adequately fenced.
[Amended 6-5-2007]
§ 165-87 Site reclamation standards.
Within 12 months after the expiration date of a permit issued under these regulations, or of the completion of any excavation, whichever occurs first, the owner of the excavated land shall have completed the reclamation of the areas affected by the excavation to meet each of the following minimum standards or, when such excavation is not subject to a permit under these regulations pursuant to § 165-83, to meet each of the following express standards:
A.
No slope in soil material shall be left steeper than 2:1 (two horizontal feet for each one foot of vertical drop) unless it can be demonstrated by the applicant that a steeper grade can be adequately vegetated and stabilized. The required slope may be modified by the Planning Board where ledge rock necessitates steeper slopes, or to a lesser slope if necessary for soil stability or safety, or for reasonable reuse and development of the lot.
B.
Ground levels and grades shall be established as shown on the approved reclamation plan as soon as practical during site excavation, but not later than one year after excavation has been completed.
C.
Except for exposed rock ledge, all areas which have been affected by the excavation or otherwise stripped of vegetation shall be spread with topsoil or strippings, if any, but in any case covered by soil capable of sustaining vegetation, and shall be planted with seedlings or grass suitable to prevent erosion. Areas visible from a public way, from which trees have been removed, shall be replanted with tree seedlings, set out in accordance with acceptable horticultural practices.
D.
All earth and vegetative debris, stumps, boulders, etc., resulting from the excavation shall be removed or otherwise lawfully disposed of.
E.
All slopes, except for exposed ledge, shall be graded to natural repose for the type of soil of which they are composed so as to control erosion or at a ratio of horizontal to vertical proposed by the owner and approved by the regulator. Changes of slope shall not be abrupt but shall blend with the surrounding terrain.
F.
The elimination of any standing bodies of water created in the excavation project as may constitute a hazard to health and safety, unless the regulator shall specify different restoration.
G.
The topography of the land shall be left so that water draining from the site leaves the property at the original, natural drainage points and in the natural proportions of flow. For excavation projects which require a permit from the Water Supply and Pollution Control Division pursuant to RSA 485-A:17, the provisions of that statute and the rules adopted under it shall supersede this Subsection G as to areas of excavation sites covered thereby. The excavator shall file a copy of the permits issued under RSA 485-A:17 with the regulator.
H.
If deemed necessary by the regulator, suitable trees or shrubs may be required to be planted elsewhere on the site in order to provide screening and natural beauty and to aid in erosion control. Such planted areas shall be protected from erosion during an appropriate establishment period by mulch and structural erosion control devices.
I.
Depending upon the proposed reuse of the affected area, the following criteria shall govern the depth of the final excavation:
(1)
If the site is to be reused for building purposes, the minimal elevation of the bottom of the excavation shall be at least five feet above the mean annual high water table, or it shall conform to the original grade prior to any excavation or disturbance of the earth.
(2)
If the site is to be reused as a pond, the minimal elevation of the bottom of the excavation shall be five feet below the mean annual high water table.
§ 165-88 Incremental reclamation.
Except for excavation sites of operating stationary manufacturing plants, any excavated area of five contiguous acres or more which is depleted of commercial earth materials, excluding bedrock, or any excavation from which earth materials of sufficient weight or volume to be commercially useful have not been removed for a two-year period, shall be reclaimed in accordance with the provisions of § 165-87 of these regulations within 12 months following such depletion or two-year nonuse, regardless of whether other excavation is occurring on adjacent land in contiguous ownership. Each operator, other than the operator of stationary manufacturing plants which are exempt from permit requirements pursuant to § 165-83C, shall prepare and submit for the regulator's record a reclamation plan for the affected land, including a timetable for reclamation of the depleted areas within the reclamation site.
§ 165-89 Exceptions to operational and reclamation standards.
The regulator, upon application and following a hearing held in accordance with the provisions of § 165-91 of these regulations, may grant an exception in writing to the standards contained in §§ 165-86, 165-87 and 165-88 for good cause shown. The written decision shall state specifically what standards, if any, are being relaxed and include reasonable alternative conditions or standards. The regulator's decision on any request for such exception may be appealed in accordance with § 165-95.
§ 165-90 Application for amendment to permit.
When the scope of a project for which an excavation permit has been issued is proposed to be altered so as to affect either the size or location of the excavation, the rate of removal or the plan for reclamation, the owner shall submit an application for amendment of his excavation permit, which application shall be subject to approval in the same manner as provided for an excavation permit.
§ 165-91 Hearing.
A.
Prior to the regulator approving or disapproving an application for an excavation permit or an application for an amended excavation permit, a public hearing shall be held within 30 days of receipt of a completed application.
B.
A notice of the hearing shall be sent to all abutters and shall specify the grounds for the hearing as well as the date, time and place of the hearing.
C.
A legal notice of the hearing shall also be published in a newspaper of general circulation in the Town at least 14 days in advance of the hearing. The 14 days shall not include the day of publication nor the day of the hearing but shall include any Saturday, Sunday or legal holiday within said period.
D.
A notice of the hearing shall be sent by mail to the members of the Derry Conservation Commission.
E.
A legal notice shall also be posted in at least three public places in Town.
F.
The cost of notifying the abutters and the cost of publishing the legal notice in the newspaper shall be paid by the applicant.
G.
Within 20 days of said hearing, or any continuation thereof, the regulator shall render a written decision approving or disapproving the application. If disapproved, the regulator shall state the reasons for disapproval in writing.
§ 165-92 Issuance of permit.
A.
If, after the public hearing, the regulator determines that the project for which the application was submitted is not prohibited by these regulations, and if the regulator approves the application, the regulator shall grant a permit to the applicant, provided that, prior to issuing the permit, the regulator shall require:
(1)
The posting of a bond, with such surety as the regulator shall reasonably determine, with the Town Treasurer in an amount as reasonably set by the regulator based on the working size of the project (not including stockpile areas or areas already restored where excavation work is completed) to guarantee compliance with the terms of the permit. The bond shall not expire until 18 months following the end of the permit or any extension thereof.
(2)
That any and all local, state or federal permits must have been obtained, as required, and that copies of said permits have been provided to the regulator.
B.
A copy of the permit shall be prominently posted at the excavation site or the principal access thereto.
C.
The permit shall not be assignable or transferable without the prior written consent of the regulator.
D.
The permit shall specify the date upon which it expires. The expiration date of all excavation permits issued by the Town of Derry shall be December 31 in the year in which they are issued.
E.
The regulator may include in the permit such reasonable conditions as are consistent with the purpose of these regulations and may include requirements for a permit for excavation which are more stringent than the standards set forth in RSA 155-E, including the provision of visual barriers to the excavation.
F.
The calling of a bond or surety which is found not to hold sufficient moneys to restore the area does not, however, relieve the landowner of his obligation to comply with the reclamation provisions of these regulations. It shall be the responsibility of the regulator to take whatever means are necessary to force compliance.
§ 165-93 Renewal of permit.
A.
All valid excavation permits issued by the Town of Derry shall expire on December 31 in the year in which they are issued.
B.
The regulator may renew any existing permit following:
(1)
The filing of a completed application for permit renewal with the regulator by October 1. Said application shall be accompanied by the renewal fee as specified in § 165-96;
(2)
Inspection of the excavation site by the regulator by October 30 to check the operation and to order any necessary work to be completed by December 31 in order to be in compliance with the terms of the permit and these regulations;
(3)
A determination by the regulator that the work being performed on the site is consistent with that as shown on the approved excavation and/or reclamation plan(s) which served as the basis for the permit for which the renewal is being requested; and
C.
Should the regulator, for any reason, deem that a renewal of the permit is not in the best interests of the Town of Derry, the regulator shall notify the applicant in writing, by December 31, stating the reason(s) for denial, and shall refund the renewal fee.
§ 165-94 Performance bond.
The regulator shall establish the amount of a performance bond prior to the issuance of the excavation permit. The bond amount shall be reasonably sufficient to guarantee compliance with the restoration in accordance with the provisions of § 165-87. The bond requirements shall be based on the acreage of the project or approved phases and the estimated per-acre restoration costs. The bond will be returned to the applicant when the restoration work has been completed and a final satisfactory site inspection has been conducted by the regulator or its designee. The applicant shall pay for any bond reviews by the Town's designated engineer and/or Town Counsel or any other professional service necessary to review the proposed excavation/reclamation plan.
§ 165-95 Appeals.
A.
If the regulator disapproves or approves an application for an excavation permit or an application for an amended permit, any interested person affected by such decision may appeal to the regulator for a rehearing on such decision or any matter determined thereby.
B.
The motion for rehearing shall fully specify every ground upon which it is alleged that the decision or order complained of is unlawful or unreasonable, and said appeal shall be filed within 10 days of the date of the decision appealed from.
C.
The regulator shall either grant or deny the request for rehearing within 10 days, and, if the request is granted, a rehearing shall be scheduled within 30 days.
D.
Any person affected by the regulator's decision on a motion for rehearing to the regulator may appeal in conformity with the procedures specified in RSA 677:4-15.
§ 165-96 Fees.
A.
In accordance with the provisions of RSA 155-E:8, an excavation permit fee in the amount of $50 shall be payable to the Town of Derry prior to the issuance of a permit or a renewal permit.
B.
The regulator may assess reasonable additional fees necessary to perform application plan review and the annual compliance review.
§ 165-97 Enforcement.
A.
The regulator may suspend or revoke the permit of any person who has violated any provision of his/her permit or these regulations or made a material misstatement in the application upon which his/her permit was granted. Such suspension or revocation shall be subject to a motion for rehearing thereon and appeal in accordance with § 165-95.
B.
The regulator shall issue cease and desist orders against any operator if he/she is found in violation of any of the terms of these regulations. Such orders shall remain in effect until the violation is corrected.
C.
Any cease and desist order issued by the regulator shall take effect, for the purpose of these regulations, on the date it is issued and shall be served by either certified mail or by a law enforcement officer.
D.
Fines, penalties, and remedies for violations of these regulations shall be as stated in RSA 676:15 and 676:17.
E.
To ascertain if there is compliance with these regulations, a permit issued hereunder or an order issued hereunder, the regulator or its duly authorized agent may enter upon any land on which there is reason to believe an excavation is being conducted or has been conducted since August 24, 1979.
§ 165-98 Conflicting provisions.
A.
Where the provisions of these regulations are in conflict with other ordinances, regulations, or laws, the more stringent shall apply.
B.
Nothing in these regulations shall be deemed to supersede or preempt applicable environmental standards or permit requirements contained in state laws, and no exemption under these regulations shall be construed as an exemption from any state statute.
§ 165-99 Waiver.
The regulator, upon application and following a hearing, may grant a waiver, in writing, to the standards contained in these regulations for good cause shown except as prohibited by RSA 155-E. The written decision shall state specifically what standards, if any, are being relaxed and include reasonable alternatives.