Dover City Zoning Code
ARTICLE IX
Excavations
§ 170-36 Authority.
RSA 155-E stipulates that, with some exceptions, all earth excavations in the state are subject to regulation from the local municipality in which the operation occurs. Pursuant to the authority vested in the Planning Board by the Code and RSA 155-E, the City adopts the following regulations to govern the excavation of earth materials in the City of Dover.
§ 170-37 Purpose and intent.
The goals of this regulation are to provide for reasonable opportunities for excavation; minimize safety hazards which can be created by open excavations; ensure that the public health and welfare will be safeguarded; protect natural resources and the environment; and maintain the aesthetic features of the City. For the purpose of achieving these goals, no earth materials in the City shall be removed except in conformance with these regulations.
§ 170-38 Applicability.
A.
Projects requiring a permit:
(1)
Those that commenced operations since August 24, 1979, without first obtaining a permit, unless specifically exempted by Subsection B below.
(2)
Any excavation proposing to begin operation after the effective date of these regulations.
(3)
Those that have lawfully operated prior to August 24, 1979, and wish to expand the excavation area.
(4)
Those excavations from an area that on August 4, 1989, was contiguous to or was contiguous land in common ownership with stationary manufacturing and processing plants that were in operation as of August 24, 1979, and wish to expand.
B.
Projects exempt from a permit.
(1)
The following projects do not require a permit but are nevertheless subject to §§ 170-42, 170-43, and 170-44. In the event of a question regarding compliance, the Planning Board may require the owner/operator to come before the Planning Board and submit such information as may be necessary to demonstrate compliance with said standards.
(a)
Existing excavations that lawfully existed as of August 24, 1979, from which earth materials of sufficient weight and volume to be commercially useful have been removed during the two-year period before August 24, 1979, provided that:
[1]
At the time operation began, it was in compliance with any local ordinances that may have been in effect;
[2]
The owner or operator of such an excavation area shall have filed an excavation report per RSA 155-E:2, I(d) with the Planning Board no later than August 4, 1991. Any existing excavation that failed to file this report shall no longer be considered to be grandfathered and must obtain a permit from the Planning Board before continuing excavation of the site.
(2)
The following projects do not require a permit but are nevertheless subject to §§ 170-42, 170-43, and 170-44 of these regulations. Compliance with these standards is mandatory in order to retain the non-permit status. Loss of such non-permit status can occur only after the Planning Board has given written notice that the excavation is not in compliance and the owner has failed to bring it into compliance within 30 days of receipt of such notice.
(a)
Excavations from a site that on August 4, 1989, was contiguous to or was contiguous land in common ownership with stationary manufacturing and processing plants which were in operation as of August 24, 1979, and which use earth obtained from such excavation site.
(b)
Excavations from a site that on August 4, 1989, was contiguous to or was contiguous land in common ownership with stationary manufacturing and processing plants for which local or state permits have been granted since August 24, 1979, and before August 4, 1989, which used earth obtained from such site.
(c)
An excavation performed exclusively for the lawful construction, reconstruction, or maintenance of a Class I, II, III, IV, or V highway. A copy of the pit agreement executed between the pit owner, the agent, and the governmental unit shall be filed with the Planning Board prior to the start of excavation. In addition, the provisions of § 170-40 of this chapter and the provisions of RSA 155-E:2, IV(b) and (c), shall be complied with.
(3)
The following projects are exempt from a permit and are not subject to regulation by the Planning Board:
(a)
Excavation that is exclusively incidental to the lawful construction or alterations of a building or structure, a parking lot or way, including a driveway, on a portion of the premises where removal occurs. This excavation cannot be started, however, until all required state and local permits have been issued.
(b)
Excavation that is incidental to agricultural or silvicultural activities, normal landscaping or minor topographical adjustment. In the event of questions, the Zoning Administrator shall determine what is incidental in accordance with RSA 21:34-a.
(c)
Excavation from a granite quarry for the purpose of producing dimension stone, if such excavation requires a permit under RSA 12-E (Mining and Reclamation).
(4)
A person owning land abutting a site that 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 written notification to the City Engineer and Zoning Administrator.
§ 170-39 Abandoned excavations.
A.
Any excavation, except for those associated with stationary manufacturing plants, 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 this regulation shall be considered abandoned if:
(1)
No material of sufficient weight or volume to be commercially useful has been removed from the site during any two-year period either before, on, or after August 4, 1989. The time period may be extended if, prior to the end of the time period, the Planning Board approves a reclamation timetable, and a bond or other surety is posted in a form and amount prescribed by the City Engineer sufficient to cover the costs of reclaiming the entire site; however, in no case shall the incremental bond amount be less than $2,500 per acre.
(2)
The excavation site is in use and is not an excavation associated with stationary manufacturing plants, but either has not been brought into compliance with the incremental reclamation standards of this regulation or a bond has not been posted and the Planning Board has not approved a reclamation timetable.
(3)
The owner or operator of the excavation has neither secured a permit pursuant to these regulations nor filed an excavation report with the Planning Board within the prescribed period.
B.
In the event the Zoning Administrator determines that any abandoned excavation presents a hazard to the public health, safety or welfare, the owner may be required, following a public hearing, to comply with the timetable and bonding requirements outlined above, or to complete reclamation within a reasonable period of time. Should reclamation not be completed, the Planning Board may request the City to authorize reclamation at the City's expense. The City's costs shall constitute an assessment against the owner and shall create a lien against the property 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.
C.
The provisions of Subsection B above also apply to any excavation that 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, if the Zoning Administrator determines, in writing, that specified reclamation measures are necessary to eliminate or mitigate an identified hazard to public health or safety.
§ 170-40 Prohibited projects.
The Planning Board shall not grant a permit:
B.
For excavations within 50 feet of the boundary of a disapproving abutter or within 10 feet of an approving abutter unless approval is requested by said abutter.
C.
Where the excavation is not permitted by zoning or other applicable ordinances; provided, however, that reasonable opportunities for excavation exist in the City, as described in RSA 155-E:4, III.
D.
Where the issuance of the permit would be unduly hazardous or injurious to the public welfare. The Board shall give particular consideration to such factors as noise, traffic, dust, fumes, or danger from operation.
E.
Where existing visual barriers would be removed, except to provide access to the excavation.
F.
Where the excavation would substantially damage a known aquifer, as designated by the United States Geological Survey.
G.
When the excavation cannot receive required necessary approvals from state or federal agencies, such as alterations of terrain or wetlands permits.
§ 170-41 Criteria for nonconforming expansions.
[Amended 7-22-2020 by Ord. No. 2020.07.08-006]
Expansion of existing excavations located in an area in which excavations are no longer permitted by zoning that was in effect on August 4, 1989, may be restricted or modified with conditions by the Planning Board if, after notice to the owner and a public hearing, the Planning Board finds that the expansion will have a substantially different and adverse impact on the neighborhood. Impacts will vary depending upon the particular neighborhood; nevertheless, the following criteria will be taken into consideration:
A.
The excavation will not cause a diminution in area property values or unreasonably change the character of the neighborhood.
B.
The excavation will not create any nuisance or create health or safety hazards.
C.
The excavation will not unreasonably accelerate the deterioration of highways or create safety hazards in the use thereof.
§ 170-42 Operational standards.
For excavations not requiring a permit, the following standards apply. For those excavations requiring a permit, these standards are considered to be the minimum; more stringent standards such as are consistent with the purpose of these regulations may be applied, as deemed necessary by the Planning Board.
A.
No excavation shall be permitted within 50 feet of the boundary of a disapproving abutter, within 150 feet of a dwelling that either existed or for which a building permit has been issued at the time the excavation is commenced.
B.
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.
D.
No fuels, lubricants or other toxic or polluting chemicals shall be stored on site unless in compliance with state laws or rules pertaining to the storage of such materials.
E.
Where temporary slopes will exceed a one-to-one grade, a fence or other suitable barricade shall be erected to warn of danger and/or to limit access to the site.
F.
Appropriate drainage shall be provided to prevent the accumulation of freestanding water for prolonged periods.
G.
Excavation practices that result in continued siltation of surface waters or any degradation of water quality of any public or private water supplies are prohibited.
H.
No excavation shall be permitted within 100 feet of any great pond, navigable river, or any other standing body of water 10 acres or more in area, or within 50 feet of any other stream, river or brook which normally flows throughout the year, or any naturally occurring standing body of water less than 10 acres, prime wetland as designated in accordance with RSA 482-A:15, I, or any other wetland area as defined by the Department of Environmental Services (DES) and § 170-28C of this chapter.
I.
Sand and gravel extraction operations shall not excavate below an elevation four feet above the seasonal high-water table observed when the associated water supply well has not been operating for at least two weeks prior to the date of measurement. Refer to § 170-33, Groundwater protection, for monitoring report requirements.
§ 170-43 Site reclamation standards.
A.
For excavations not requiring a permit, the following standards apply. For excavations requiring a permit, these standards are considered to be the minimum; more stringent standards such as are consistent with the purpose of these regulations may be applied, as deemed necessary by the Planning Board.
B.
Within 12 months following the expiration date of a permit issued under these regulations, or the completion of any excavation with the exception of agricultural activities, whichever occurs first, the excavated area shall be reclaimed in accordance with the following standards:
(1)
Except for exposed rock ledge, all disturbed areas shall be spread with topsoil, or any other soil capable of maintaining 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.
(2)
All earth and vegetative debris resulting from the excavation shall be removed or otherwise lawfully disposed of.
(3)
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 Planning Board. Changes of slope shall not be abrupt but shall blend with the surrounding terrain.
(4)
Any standing bodies of water created by the excavation that are judged to constitute a hazard to health and safety shall be eliminated.
(5)
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 requiring a permit from the Department of Environmental Services, Water Division, the provisions of RSA 485-A:17 shall supersede this regulation. Copies of all local, state and federal required permits shall be filed with the Planning and Community Development Department.
[Amended 7-22-2020 by Ord. No. 2020.07.08-006]
§ 170-44 Incremental reclamation.
Except for excavation sites 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 operation 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 § 170-43 within 12 months following such depletion or nonuse, regardless of whether other excavation is occurring on adjacent land in contiguous ownership. A reclamation plan, including a reclamation timetable for the depleted areas within the reclamation site, shall be submitted to the Planning Board for review and approval by each operator, other than the operators of stationary manufacturing plants that are exempt from permit requirements.
§ 170-45 Performance guarantee.
A.
Prior to the granting of any permit or to the removal of topsoil or other overburden material from a new area within an existing excavation site, the applicant shall submit to the Planning and Community Development Department a bond with sufficient surety as determined by the City Engineer. In no case shall the incremental bond amount be less than $2,500 per acre. The purposes of the bond are to guarantee reclamation of the area and compliance with the permit and to defray costs of any inspections. Off-site improvements for potential damage of City streets or facilities caused by the transportation of earth materials shall be discussed at this stage.
[Amended 7-22-2020 by Ord. No. 2020.07.08-006]
B.
The surety may be in the form of a performance bond, property escrow, irrevocable letter of credit, or any other form approved by the Planning Board. The surety may be phased to coincide with the phasing of work, in an amount sufficient to guarantee reclamation of the applicable section, to be released as sections are completed. Prior to a new section being opened, new securities shall be posted. The surety shall not be released until the City Engineer is satisfied that all conditions of the site reclamation plan have been complied with.
§ 170-46 Waivers.
Due to the diverse nature of excavation operations that vary in scale and scope, and due to the varying conditions of the land to be excavated, the Planning Board may, upon application and following a duly noticed hearing, grant any waiver, in writing, to the standards contained in §§ 170-42, 170-43, 170-44 and 170-45 for good cause shown. The written decision shall state specifically what requirements are being waived and include any reasonable alternatives.
§ 170-47 Application procedures.
Prior to the Planning Board rendering a decision for an excavation permit, a public hearing shall be held, with due notification of all abutters and the public. The procedure for holding these public hearings is as follows:
A.
Filing of the application.
[Amended 7-22-2020 by Ord. No. 2020.07.08-006]
(1)
Applications for new excavation permits shall be filed with the Planning and Community Development Department by April 1. Applications to renew excavation permits shall be due by April 1 once every two years. Applications to renew shall be due by April 1 of the renewal year. Excavations operating within the primary and secondary groundwater protection zones must still comply with the annual reporting requirements set forth in § 170-33F(2)(a).
(2)
The application will be reviewed with the applicant upon submittal to the Planning and Community Development Department and will be accepted only if it is found to meet all submission requirements for a completed application. The application must be accepted as complete no later than April 15 in order to be scheduled for a public hearing. If the application is not completed by the deadline, then another meeting may be scheduled, but may not be later than the expiration date of the permit. All operations shall cease upon permit expiration until a new hearing is scheduled and a completed application is approved.
B.
Board action on application.
(1)
At the Planning Board's first meeting date in May, the Planning Board may vote to accept the application and, if accepted, will schedule a public hearing to be held within 30 days.
(2)
Within 20 days of the close of the hearing on the application, or any continuation thereof, the Planning Board shall make a decision. The Board may for good cause, with proper notice, accept the application, hold the public hearing, and make a decision during the same meeting. Notice of this decision shall be recorded in the minutes of the meeting and placed on file in the Planning and Community Development Department within 72 hours.
[Amended 7-22-2020 by Ord. No. 2020.07.08-006]
(3)
The applicant shall receive a written copy of the minutes along with the decision. In the event the application is disapproved, the reasons for the disapproval shall be given.
C.
Notices required for public hearing.
(1)
All abutters will be notified by verified mail, not less than 14 days prior to the meeting at which the application will be submitted for acceptance. Names and addresses of abutters must be taken from City records not more than five days before filing the application.
[Amended 7-22-2020 by Ord. No. 2020.07.08-006]
(2)
Public notice will appear in a newspaper of general circulation and in at least three public places not less than 14 days prior to the meeting.
(3)
The notice must include the location and general description of the proposal, as well as the date, time and place of the meeting.
D.
Fees.
(1)
A filing fee as contained within the Fee Schedule plus abutter notification postage shall be paid upon submission of an application, to defray the costs of posting notice for the public hearing. Failure to pay such cost shall constitute grounds for the Planning Board to not accept the application.
[Amended 9-11-2019 by Ord. No. 2019.08.28-012]
(2)
A permit fee as contained within the Fee Schedule shall be paid upon the issuance of a permit, to defray the costs of permit compliance.
[Amended 9-11-2019 by Ord. No. 2019.08.28-012]
(3)
A fee payable to the Strafford County Register of Deeds (SCRD) shall be paid, upon approval, for the filing of any new plan, if so required by the Planning Board.
(4)
Additional reasonable fees shall be charged should the Planning Board require the advice of an engineer or other expert to review plans or inspect the site to determine permit compliance.
§ 170-48 Application submission items.
The applicant shall submit at least 15 copies of an excavation and a reclamation plan; one additional copy shall be sent to the Conservation Commission. The plans shall be at a scale appropriate for the land area involved. The Planning Board may, upon good cause shown, waive any of the items in Subsection A or B below.
A.
Excavation plan. The excavation plan shall address specific actions to be taken on the site relative to fuel and chemical handling and storage, dust control, traffic, noise control and abatement, and comprehensive site safety of unauthorized persons. The plan shall show or be accompanied by the following items:
(1)
Name and address of the owner, the excavator (if different) and all abutters.
(2)
Name, address, and signature with professional stamp of the person preparing the plan; date, bar scale and North arrow.
(3)
Zoning district boundaries of the proposed area and within 200 feet of the boundary of the project.
(4)
Sketch and description of the location and boundaries of the proposed and any existing excavations, including the area in square feet and acres.
(5)
The location of existing buildings, structures, septic systems and wells within 200 feet of the boundary.
(6)
Public streets, driveways, intersections, rights-of-way, and all easements within 200 feet; road network to be affected; intended transportation routes to be used.
(7)
Topography at contour intervals of five feet or less.
(8)
All surface drainage patterns, including wetlands and standing water.
(9)
Sketch and description of existing and proposed access roads, including width and surface materials.
(10)
The breadth, depth and slope of the proposed excavation and the estimated duration of the project.
(11)
The elevation of the highest annual average groundwater table within or next to the proposed excavation. Refer to § 170-33, Groundwater protection, for requirements of the annual report documenting compliance with the four-foot buffer rule.
(12)
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; boring logs may be submitted separately.
(13)
Proposed fencing, buffers or other visual barriers, including height and materials.
(14)
All measures to control erosion, sedimentation, water pollution, air pollution, and any hazards to human safety.
(15)
Plans for stormwater management.
(16)
Plans for storage, use, and disposal of petroleum products and other regulated materials.
(17)
Methods to prevent materials from the site from being tracked onto public roadways.
(18)
Copies of all necessary state and federal permits.
(19)
All infrastructure and topographic information shall be submitted in an electronic format, as well as on paper.
B.
Reclamation plan. The reclamation plan shall address the effects of the proposed excavation on soil, surface water and groundwater, vegetation, overburden, topography, and fill material, and should address future land use consistent with the City's Master Plan. The plan shall show or be accompanied by the following items:
(1)
Name, address, and signature with professional stamp of the person preparing the plan; date, bar scale and North arrow.
(2)
All boundaries of the area proposed for reclamation and the land within 200 feet of the boundary of this site.
(3)
Final topography of the area proposed for reclamation, at contour intervals of five feet or less.
(4)
Final surface drainage pattern, including the location and physical characteristics of all artificial and/or modified drainage facilities.
(5)
Timetable as to fully depleted sites within the excavation area.
(6)
Schedule of final reclamation activities, including seeding mixtures, cover vegetation, fertilizer types, and application rates.
C.
Other information. The Planning Board reserves the right, per RSA 155-E:3, VII, to request any other information it deems necessary to make an informed decision, or to have plans reviewed by an outside agency. According to the authority vested in the Planning Board by RSA 676:4, I(g), any reasonable expenses incurred for such information or reviews shall be charged to the applicant. Failure to pay such costs constitutes valid grounds for the Planning Board to deny the application. The following items shall accompany the application:
(1)
An annual report documenting compliance with the requirements of § 170-33, Groundwater protection. Pursuant to RSA 155-E:11, the requirements of this section may be waived if the applicant demonstrates that such exception shall be recorded in the Registry of Deeds, and one copy filed with the New Hampshire Department of Environmental Services.
(2)
A written statement from the Tax Collector that all current property and excavation taxes levied against all properties in the operation have been paid in full and that there are no unreleased tax liens encumbering said properties.
(3)
A copy of the notice of intent to excavate filed with the Assessor's Office.
(4)
A copy of the surety bond or other form of performance guaranty as approved by the Planning Board.
§ 170-49 Administration and enforcement.
A.
Permits.
(1)
Permits shall be issued only to the owner or his agent and shall not be transferable without the prior written consent of the Planning Board. A copy of the permit shall be prominently displayed at the site or the principal access to the site.
(2)
A permit shall be valid for two years, and the expiration date shall be May 30.
(3)
Failure to file for a permit shall be considered a violation, and operators who fail to file will be issued a cease and desist order by the Zoning Administrator.
(4)
The Board may include in the permit any such reasonable conditions as are consistent with the purpose of these regulations.
(5)
All permitted sites shall be inspected once every two years. Inspections by the Zoning Administrator or his designee shall be scheduled in April to coincide with permit renewal applications and in October each year by the Zoning Administrator or his designee. The inspection reports shall be timely submitted to the Planning Board for its review.
B.
Amendments and renewals. Permit holders wishing to alter the size or location of the excavation, the rate of removal or the plan for reclamation shall apply for a renewal or amendment following the same procedures as those required for the original excavation permit.
C.
Inspections. The Zoning Administrator or his designee may make periodic inspections of all excavation sites to determine if the operations are in conformance with these regulations and the approved plans.
D.
Suspensions and revocations. The Board may suspend or revoke a permit if the Zoning Administrator determines that any provision of the permit has been violated, a material misstatement made in the application upon which a permit was granted, or any unsafe or hazardous conditions are determined by a site inspection to exist. Such suspension or revocation shall be subject to a motion for rehearing thereon and appeal in accordance with these regulations to the Zoning Board of Adjustment.
E.
Appeals. Any person affected by the Planning Board's decision to approve or disapprove an application or any amendment thereto or any suspension or revocation of a permit may appeal to the Zoning Board of Adjustment for a rehearing on such decision or any matter determined thereby. The motion for rehearing shall be filed within 10 days of such decision and shall fully specify every ground upon which it is alleged that the decision or order complained of is unlawful or unreasonable. The Zoning Board 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. Any person affected by the Zoning Board's decision on a motion for rehearing may appeal in accordance with RSA 677:4 to 677:15.
F.
Penalties. Fines, penalties and remedies for violations of this regulation shall be the same as for violations of RSA 676:15 and 676:17. Whoever violates any provision of this regulation, a permit or a valid order issued hereunder shall be guilty of a misdemeanor.