Elwood City Zoning Code
NATURAL RESOURCE
EXTRACTION
§ 155.355 PURPOSE.
(A) It is the purpose of this section to establish reasonable and uniform limitations, safeguards, and controls on excavation within the city. These provisions are deemed necessary in the public interest to affect practices which will for the economical use of vital materials necessary for our economy, and give due consideration to the present and future use of land in the interest of promoting the public health, safety, and general welfare of the residents of the city.
(B) Any necessary alterations to the surface of land within the city which involves excavation should be done in such a way as to minimize undesirable effects on surrounding or adjacent land.
(C) Excavated land shall be reclaimed and rehabilitated so as to prevent conditions detrimental to the general health, safety, and welfare of the residents of the city and to provide for the subsequent use of the excavated land.
(D) Reclamation and rehabilitation requirements must be adapted to the diversity of the topography, biologic, geologic, economic, and social conditions of the area where the excavation takes place.
(Ord. 2008-005, passed 8-12-2008)
§ 155.356 EXCAVATION CONDITION USE PERMIT REQUIRED.
No excavation shall be permitted on any land in the city unless authorized under a conditional use permit issued to the owner and/or operator of the property in accordance with the procedures set forth in § 155.106, except for where a nonconforming excavation use is legally proven to have been established or is accepted by city officials as having been established.
(Ord. 2008-005, passed 8-12-2008) Penalty, see § 155.999
§ 155.357 INFORMATION REQUIRED WITH CONDITIONAL USE PERMIT APPLICATION.
In order to ensure that the area of the proposed excavation is reasonable for that purpose and to ensure rehabilitation of the land area to a state that enables meaningful use, ensures public safety and maintains or restores acceptable aesthetic conditions, the owner or operator shall, prior to commencement of any phase of operation, submit to the city’s Planning Commission, as part of the conditional use permit application procedure, an excavation and rehabilitation plan which addresses the following.
(A) General information. The following shall be provided: the name of the property owner(s), lessee(s), operator(s), agent for service of process or notice(s), address and/or location of property, and legal description.
(B) Pre-excavation and site inventory and analysis. A pre-excavation and site inventory and analysis, both off-site and on-site, shall be performed by the applicant containing the following information:
(1) A vicinity analysis describing other land uses surrounding the site, the possible impacts of the proposed excavation on adjacent properties and the methods to be employed to mitigate any potentially negative effects;
(2) A description of the haulage routes to be employed on public and private roads;
(3) Other items reasonably determined necessary by the Planning Commission;
(4) A topographic map of the area (at a scale of one inch equals 200 feet) to a maximum contour interval of five feet and extending at least 500 feet beyond the proposed excavation site;
(5) A description of the visual characteristics, with particular concern given to the use of natural topography and vegetation, to shield on-site operations from nearby properties, roadways, and the general public;
(6) A soils survey, to include a soils profile; and
(7) Other items reasonably determined necessary by the Planning Commission.
(C) Excavation operations plan. The application shall provide an excavation operations plan which describes the following:
(1) Proposed starting date, the anticipated period of operation and anticipated days of the week and hours of the day for operations;
(2) Planned phases of excavation;
(3) Anticipated amount of material to be removed during each phase;
(4) Number, type, and kinds of machinery and equipment to be used;
(5) Operational processes, including crushing, stockpiling, top soil retention, milling, and the like;
(6) The water to be used in operations, its source, control, and disposal;
(7) Electrical power requirements and source;
(8) Accessory facilities, such as scales and buildings;
(9) Sanitary facilities and disposal system;
(10) A description of techniques used to control dust and noise;
(11) Transportation routes on- and off-site;
(12) Run-off water control and detention;
(13) Depiction of phases and location of all facilities, stockpiles, transportation routes, detention basin(s), and water and power sources on the topographic map referred to above or other suitable map;
(14) Any economic or adverse effects on the surrounding area and steps taken to mitigate their impact, such as dust, lights, vibration control, and noise abatement;
(15) Detailed analysis and description of noise levels (expressed in decibels) expected from proposed operation;
(16) Cross-sections showing existing surfaces versus proposed excavation at 100-foot intervals across the site. Cross-sections should be drawn parallel to slope;
(17) To the extent not already shown, how the operations will comply with the requirements of § 155.358;
(18) Operator’s safety plan; and
(19) Other items reasonably determined necessary by the Planning Commission.
(D) Rehabilitation plan. The applicant shall provide a rehabilitation plan with the use of maps, imagery, and renderings (at a scale of one inch equals 200 feet) extending 500 feet beyond the legal description of the site area with a maximum contour interval of five feet which includes at least the following:
(1) A grading plan drawn and certified by a licensed engineer or land surveyor indicating the areas to be excavated and the proposed finished grades, stormwater drainage patterns, and mapped FIRM floodplain;
(2) A description of the methods and plans to be used rehabilitation of the site during and after the excavation operations;
(3) A description of the landscape plan to include the replacement of topsoil, planting schedule, specifications for plant applications, mulching, plant materials, and type of irrigation to be used;
(4) A description of the hydrologic environment of the rehabilitated site to include a map illustrating water drainage areas such as lakes, springs, ponds, streams, wells, pipelines, culverts, ditches, canals, sloughs, and the like;
(5) A description and site plan of all permanent roads and other human-made structures which are to remain after rehabilitation;
(6) Cross-sections shall be taken in the excavation site in areas of greatest material displacement. The number of cross-sections required shall be dependent on the size and topography of the excavation site;
(7) To the extent not already shown, compliance with § 155.363;
(8) Evidence of surety; and
(9) Other items reasonably determined necessary by the Planning Commission.
(E) Addendum. Final conditions or limitations imposed by the Planning Commission are to be completed prior to final issuance of the conditional use permit.
(Ord. 2008-005, passed 8-12-2008) Penalty, see § 155.999
§ 155.358 OPERATIONAL REQUIREMENTS.
All excavation operations are subject to the following limitations, restrictions, and controls.
(A) Dust, noise, vibration, smoke, lights, and odor. All equipment and machinery used on the site and in transportation of products shall be constructed, maintained, and operated in such a manner as to minimize the impact of dust, noise, vibration, smoke, welding lights and other lights, odor, and all other negative or undesirable impacts on adjacent and surrounding properties. Soil berming, landscaping, and other techniques shall be used to accomplish the objective of reducing the impact of smoke, odor, lights, noise and vibration on adjacent property, and to control loose dirt and dust such that it remains on the operation site. All state and federal emission guidelines and regulations must be adhered to. Access and haulage roads shall be maintained in a dust-free condition by surfacing or other treatment as approved by the city’s Road Department and fugitive dust shall be controlled in all operational areas of the excavation site.
(B) Operation boundaries. To protect neighboring residents and properties from the potentially adverse effects of dust, noise, vibration, smoke, welding and other lights, odors, soil erosion, and all other negative or undesirable impacts, all excavation operations are prohibited within 200 feet of an adjacent residential property or a subdivision or within 50 feet of a public highway or street, except for accessory roads. Rock crushing operations shall not be conducted within 600 feet of adjacent properties with a residence, if allowed at all.
(C) Fencing and barriers. Fencing or other suitable barriers shall be created and maintained on or around the boundary of the excavation site or on or around portions of the site where such fencing is practicable and necessary because of dangerous conditions, whether existing or created by the excavation, as determined by the Planning Commission. Fencing or barriers may also be required, at the option of the Planning Commission, to provide screening of the excavation operation from public view and to enhance the general aesthetics of the area. Fencing, monuments, or other means of identification shall be placed and maintained around the perimeter of the excavation site so as to enable reasonable identification of the property line separating the excavation property from adjacent properties.
(D) Landscaping. The planting of trees, shrubs, or other appropriate landscaping, or the placement of berms or structures, shall be required where natural conditions make such feasible and practical in order to provide a dust and/or sound barrier to screen excavation from public view, to enhance the general appearance, and to minimize the damaging effect of such operations to the aesthetics and character of the surrounding area. Vegetative material shall be planted together with necessary topsoil as per a schedule approved in the granting of the conditional use permit, and shall be maintained in a healthy, growing condition.
(E) Washing operations. The washing of sand and gravel, when permitted, shall be done so as to prevent the discharge of waste water directly into an adjacent open waterway onto any public or private roads or onto any private property without the written consent of the property owner or jurisdictions.
(F) Run-off water detention. The operator or owner shall, on determination by the city zoning staff, be required to construct run-off water detention facilities to prevent damage to neighboring property and structures and for protection of the residents and property below the site. A Storm Water Pollution Prevention Plan (SWPPP) shall be prepared and submitted in accordance with the National Pollution Discharge Elimination System (NPDES) requirements, and all necessary federal, state, and local permits shall be obtained.
(G) Truck washing and covering. Prior to entry onto asphalt roadways from dirt surfaces, truck tires shall be washed or otherwise cleaned to remove dust, soil, mud, gravel, and all other debris, and trucks shall be covered to prevent contamination of public roadways by the depositing of dust, mud, soil, gravel, and all other debris on any public roadway.
(H) Load limits. All trucks, equipment, and machinery operating on public roadways shall comply strictly with city and state road limitations setting forth allowable vehicle weight limits, heights, and lengths, and all vehicles must meet state safety requirements, and, where necessary, flagging and other traffic controls shall be implemented to preserve public safety.
(I) Hours of operation. Excavation operations and/or for the transport of materials to and from the site, except for the maintenance and repair of vehicles and equipment, which does not have a negative or unacceptable impact on surrounding or adjacent property owners, shall take place between the hours of 8:00 a.m. to 6:00 p.m. on any day, except as provided herein. No truck used in hauling operations will be allowed into the site before the specified time or permitted to leave the site loaded with materials from the site after the specified time. The Planning Commission may modify the hours of operation for any excavation area based on findings of fact. No excavation operations shall take place on Sundays or on any legal city, state or federal holidays. During periods of national, state, or local emergency or to ensure safety of citizens, the time and hours of operation may be altered at the discretion of the Planning Commission.
(J) Restricted or related manufacturing operations. The manufacture of concrete building blocks or other similar blocks, the production or manufacture of lime products, the production of ready-mixed concrete, the production of asphalt mixes, rock crushing and screening operations, and any similar production or manufacturing processes that might be related to the excavation operation shall not be permitted, except as otherwise provided in the city zoning code and except where a nonconforming use related to one or more of the referenced activities is legally proven to have been established or is accepted by city officials as having been established.
(K) Permits and compliance with laws. Compliance with all federal, state, and local laws relating to excavation operations shall be achieved and maintained and all required permits obtained, including a business license from the city.
(L) Cessation of operations. Within one year after the cessation of operations, all temporary structures (except fences), equipment, rock piles, rubble heaps, or other debris shall be removed or back-filled into the excavation so as to leave the site in neat and orderly condition as determined by the city zoning staff and as provided below. This includes the rehabilitation and revegetation of all excavated areas as outlined in § 155.362.
(M) Blasting. Any excavation by blasting shall only be allowed by separate application to and approval by the Planning Commission, after a public hearing for which prior notice was given.
(N) Safety of operations. Any excavation operation shall be conducted in a safe manner. To protect against collapse, cuts, banks, and any other open slopes on the premises shall not be left past the end of a working day, or left unattended when such slopes are more steep than one to one (1:1). The city zoning staff may require less steep slopes of any operation if he, she, or they determines that, due to the angle of repose for the type of the soils being excavated, a less steep slope ought to be maintained to ensure proper safety. Other applicable state and federal occupational health and safety requirements must also be met. The owner of the land, as well as any contractor conducting the excavation operation shall be jointly responsible for compliance with safety requirements.
(Ord. 2008-005, passed 8-12-2008) Penalty, see § 155.999
§ 155.359 REVOCATION OR MODIFICATION OF A CONDITIONAL USE PERMIT.
(A) Any conditional use permit issued shall be subject to revocation or modification by the Planning Commission as set forth in § 155.111.
(B) Modification of the conditional use permit plans. Modification of the conditional use permit plans may be initiated either by the Planning Commission or by the permittee where minor revisions are sought for any portion of the approved permit.
(Ord. 2008-005, passed 8-12-2008) Penalty, see 155.999
§ 155.360 TRANSFER TO SUCCESSOR OPERATOR.
Whenever an owner/operator succeeds to the interest of another owner/operator by sale, assignment, lease, or other means, the Planning Commission may release the first owner/operator from his, her, or their responsibilities under his, her, or their approved plans as described above, including surety, provided the successor owner/operator assumes all of the responsibilities of the former owner/operator to the satisfaction of the Planning Commission under the approved conditional use permit and the posting of surety. Upon satisfactory assumption of such responsibilities by the successor owner/operator, under conditions approved by the Planning Commission, the responsibility of the total excavation site and permit shall be transferred to the successor owner/operator. Any owner/operator succeeding to the interest of another owner/operator by sale, assignment, lease or other means, in a legally existing non-conforming use as referenced in § 155.356, above, shall enjoy the same privileges and be bound by the same restrictions as the transferring owner/operator.
(Ord. 2008-005, passed 8-12-2008)
§ 155.361 FILING OF AN ANNUAL PROGRESS REPORT.
At the end of each calendar year, unless waived by the Planning Commission for due cause, each operator conducting excavation operations shall file an operations and progress report with the Planning Commission. The report will summarize activities in fulfillment of the requirements of excavation and rehabilitation in conformance with the rehabilitation plan previously submitted.
(Ord. 2008-005, passed 8-12-2008)
§ 155.362 REHABILITATION REQUIREMENTS.
In order to ensure that the excavated area shall be rehabilitated to a condition of practical usefulness and reasonable physical attractiveness within a reasonable amount of time, to prevent environmental degradation to the ecologic and hydrologic regimes caused by excavation, and to prevent present and future hazards to public safety and welfare, all owners and/or operators of excavation operations shall adhere to a rehabilitation plan approved by the Planning Commission, which shall include the following, except for items which are, for due cause, waived or modified by the Planning Commission as being unnecessary for a particular excavation site.
(A) Progressive rehabilitation. The owner and/or operator shall, at the option of the Planning Commission, submit a plan for progressive rehabilitation, meaning that rehabilitation will commence and be carried on during excavation operations. When the excavation of an area of two acres or less is completed per the excavation plan, that area shall be rehabilitated. Rehabilitation shall proceed as soon as practicable after completion of the excavation of a phase, or site if there are no phases, as set forth in the approved excavation and rehabilitation plan, or as determined by the city’s zoning staff.
(B) Backfilling. Where back-filling is required, the excavated area shall be graded and backfilled with uncontaminated native materials or topsoil only. This backfill must be of such material as to support vegetation and grass growth. The graded or back-filled area shall not be contoured so that it will collect and permit stagnant water to remain thereon. Peaks and depressions in the excavation area shall be reduced to a surface which will result in level or gently sloping topography in substantial conformity to the land area immediately surrounding the excavation site and which will minimize the possibility of erosion. In rehabilitation involving material that is of loose or friable nature, no slope shall be left that exceeds 30 degrees or the normal angle of repose of the material involved, whichever is less.
(C) Grading, stockpiling, seeding, phases, and the like. Excavations shall be planned so as to progressively develop the proposed final land forms by grading and by stockpiling topsoil and overburdened materials in areas designated for future land forms or in excavations where the material will be spread over the excavation floor where no future excavation is anticipated. Such areas are to be covered with topsoil, seeded and planted immediately after grading is completed or within appropriate planting seasons, but in any case, the grading and planting shall be complete within one year. The rehabilitation plan shall contain a description of the phased rehabilitation process throughout the anticipated life of the excavation.
(D) Final rehabilitation. Final rehabilitation shall begin immediately for any site where operations authorized under a conditional use permit or a legal nonconforming use as referenced in § 155.356 have ceased for a period of at least 18 months, or otherwise terminated. The final rehabilitation shall conform to the plan approved (including approved modifications) in the conditional use permit. All rehabilitation plans shall conform at least to the below listed minimum standards and other requirements listed elsewhere in this subchapter as reasonably determined by the Planning Commission; provided, however, that the Planning Commission may require more stringent standards where special hazards exist in order to protect the health, safety, and general welfare of the public and to prevent injury to adjacent property or improvements.
(1) Grading. Slopes, overburdened stockpiles, and abandoned soil piles shall be graded and smoothed so as to control erosion and prevent the creation of potentially dangerous areas in accordance with the direction of the city’s zoning staff.
(2) Water-filled areas. All excavations which create standing water or ponds shall be filled with native materials. This requirement shall not apply, however, to any water-filled excavations scheduled to become an integral part of the final rehabilitation plan. The rehabilitation of these areas shall be done in such a manner that the groundwater is not polluted. Fill material shall be porous to allow for water dispersion unless otherwise specified in the rehabilitation plan.
(3) Landscaping. The excavated areas and all other disturbed areas shall be replanted and maintained with trees, shrubs, grasses, or other vegetative ground cover, preferably native to the area, in order to minimize erosion and to restore the land to a natural appearance.
(4) Removal of buildings and equipment. As soon as excavation has been permanently terminated, all buildings and equipment (including electrical conduits) used in the administration of the operations shall be removed unless deemed necessary to the approved final use of the rehabilitated site.
(5) Rehabilitation project. In the final year of excavation, the mining operation may, as part of the rehabilitation project, excavate closer than 200 feet to any property lines, but only upon a showing of compelling mutual good and the approval of the Planning Commission.
(E) Rehabilitation verification. At the conclusion of excavation operations and rehabilitation of the excavation site, the city zoning staff shall present a statement to the Planning Commission verifying the permit area or nonconforming excavation area has been rehabilitated in compliance with the requirements of the excavation ordinance and excavation and rehabilitation plan previously submitted in compliance with this subchapter.
(Ord. 2008-005, passed 8-12-2008) Penalty, see § 155.999
§ 155.363 PROVISION OF SURETY.
(A) Provision of surety before operations begin. After receiving notification that the application for a conditional use permit has been approved, but prior to commencement of such operation, the operator shall provide surety to the city, in a form and amount sufficient to secure the performance of the rehabilitation agreement.
(B) Amount of surety. In determining the amount of surety to be provided, the city shall consider factual information as to the magnitude, type, and costs of approved rehabilitation activities planned for the land affected and the nature, extent, and duration of operations under the excavation and rehabilitation plan. The city shall determine the amount of the surety reasonably related thereto, to protect the city and ensure compliance with the requirements of the conditional use permit; however, the amount of the surety shall not exceed 125% of the estimated cost of rehabilitating the excavation. The surety shall be periodically reviewed to ensure that the amount of the surety is capable of insuring adequate rehabilitation.
(C) Form of surety. In determining the form of surety to be provided, the City Council shall approve a method that is consistent with the requirements of this subchapter, which may be one or a combination of corporate surety bond, land, cash, letter of credit or other deposited securities to which the city shall have immediate access in the event the owner/operator fails to or refuses to carry out and complete the necessary and required rehabilitation.
(D) Releases of surety. The liability under surety provisions shall continue until such time as released as to part, or in its entirety, by the City Council upon completion of the required rehabilitation. Partial releases may be allowed within the discretion of the City Council.
(E) Forfeiture of surety. If the owner/operator fails to or refuses to carry out the necessary land rehabilitation as outlined in the approved excavation and rehabilitation plans, the city may, after notice and hearing, declare any surety filed for this purpose forfeited, or in case of a corporate bond file suit against the owner or operator and his, her, or their bonding company. The city shall also have the right to file suit against the defaulting permittee for violations of this subchapter or any permit granted, or for costs of rehabilitation and reasonable attorney fees. The city may also cause the required rehabilitation to be completed and be reimbursed or pay for such work out of the surety that was provided.
(Ord. 2008-005, passed 8-12-2008) Penalty, see § 155.999
§ 155.364 OPERATION REDUCTION IN DISTANCE PERMITTED.
Relating to existing operations, where a nonconforming excavation use is legally proven to have been established or is accepted by city officials as having been established, the Planning Commission may, consistent with the intent of these regulations and where the character of the terrain, the nature of land ownership, the character of surrounding development, or other special conditions would justify such modification, permit a reduction in the required operation boundaries as stipulated in § 155.358(B) so as not to impose unreasonable requirements; however, in no case shall the required distances for any excavation or accessory structure be less than 50 feet from the boundary of a parcel or lot with a residential use.
(Ord. 2008-005, passed 8-12-2008) Penalty, see 155.999
§ 155.365 INSPECTION AND STOP WORK ORDERS.
It shall be the duty of the city staff to inspect or cause to be inspected at regular intervals, as often as necessary, all excavations. Where it is determined by the city staff that any excavation operation is not proceeding in compliance with the provisions of this subchapter, the city staff may order, or cause to be ordered, the work on the excavation operation stopped by notice in writing served on any person engaged in working or causing such work to be done, on the excavation operation, and all persons shall forthwith stop such work until the excavation operation is brought into compliance with the provisions of this chapter the city staff authorizes the excavation operation to proceed. In addition, the zoning staff may also pursue appropriate legal action in the courts. Failure to implement administrative or legal action shall not legalize any violation of this subchapter.
(Ord. 2008-005, passed 8-12-2008)