Memphis City Zoning Code
CHAPTER 152
SOIL REMOVAL
§ 152.01 TITLE.
This chapter shall be known and cited as the “City of Memphis Soil Removal Ordinance” and will be referred to herein as “this chapter”.
(1979 Code, § 5.401) (Ord. 96, passed 5-5-1987)
§ 152.02 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BERM. A landscaped earthen embankment of at least four feet in height, designed to act as a visual and sound barrier, with a slope no steeper than one on two.
EARTH MATERIALS. Any soil, topsoil, subsoil, sand, gravel, rock, clay, peat or other similar material.
FENCE. A woven wire fence of at least four feet in height but in no instance shall a FENCE be of lesser quality than No. 11 farm fence.
GREENBELT or PLANTING. A dense evergreen, or similar plant material, designed to provide an obscuring buffer.
NUISANCE. Anything that annoys, injures or endangers the safety, health, comfort or repose of the public, interferes with or destroys or renders dangerous any public thoroughfare, allows accumulation of noxious matter on private or public property or in any way renders the public insecure.
PIT OPERATIONS. Any excavation where ponded water results or that lowers the surface to a point below the definition of a stripping operation.
PREMISES. A contiguous parcel of land in the same ownership.
RECLAMATION. The restoration of property in a fashion that makes its development by a use permitted in the zoning district possible.
STRIPPING OPERATIONS. Any one of the following types of excavations where no ponded water results.
(1) Any operation which results in the removal of all or part of a visible surface landform;
(2) Any operation which is limited to the removal of topsoil only and does not disturb the underlying subsoil, whether the subsoil is composed of sand, gravel, clay or other material; and
(3) Where there is no nearby street or road, an operation which removes the surface soils no lower than a point at least six inches above the mean elevation of the surrounding land within one-quarter mile, as shown on United States Geological Survey data.
(1979 Code, § 5.402) (Ord. 96, passed 5-5-1987)
§ 152.15 REMOVAL PERMITS.
After the effective date of this chapter, it shall be unlawful for any person to remove any earth material from any premises without a permit from the City Council. However, no permit will be required where the removal of earth materials is carried on for the installation of the foundation and/or basement of any use permitted in the applicable zoning district as regulated by Ch. 150.
(1979 Code, § 5.403) (Ord. 96, passed 5-5-1987) Penalty, see § 152.99
§ 152.16 APPLICATION FOR PERMIT.
(A) Before granting a permit, the City Planning Commission shall conduct a public hearing concerning such application and file its recommendation with the City Council.
(B) This requirement of a public hearing shall not apply for nine months after the effective date of this chapter for any pit operation or stripping operation that is in existence, and was in existence, for six months prior to the effective date of this chapter.
(C) A separate permit shall be required for each separate site. Each application for a permit (five copies to be submitted) shall be made to the City Clerk and shall, except as otherwise provided herein, contain a topographical survey, engineering plan and a reuse plan (all at the same scale) and the following information as a condition precedent to the obligation to consider such request:
(1) Full names and addresses of all parties of interest in said premises, setting forth their legal interest. Proof of said legal interest shall be provided;
(2) A boundary survey, sealed by a registered land surveyor, of the premises wherein the operations are proposed shall be provided. The requirements of this section shall not be required of any pit operation or stripping operation in existence at the effective date of this chapter;
(3) Topographical survey map at a scale of at least one inch equals 200 feet, showing existing and proposed grades on a two foot contour interval or greater, consistent with sound engineering practice. Said grades shall be prepared and sealed by a civil engineer or land surveyor, registered as such by the state. The topographical survey must be updated each year, prior to issuance of an annual operating permit. For operations existing at the effective date of this chapter, a sealed document shall not be required in the first five years of operation under this chapter. However, a sketch on grid paper showing approximate elevations and proposed elevations at the end of the permit;
(4) A statement, cross-sections showing all proposed slopes and calculations by a registered civil engineer or land surveyor showing the cubic yards of the earth material to be removed and a detailed statement and engineering plan as to how the removal is to be accomplished;
(5) Detailed site engineering plan drawn at a scale of at least one inch equals 200 feet, which identifies all types of materials to be removed and/or redistributed, an indication of specific places on the property where the fill (redistributed material) is to be placed, storm drainage design including off-site ditch and drain elevations, final grading plan, final drainage pattern, a detailed statement as to the methods of operation, such as wet or dry method, the type of machinery or equipment to be used and the estimated period of time that such operations will cover, where restoration is not complete, as-built drawings showing the present contours of the excavation shall be submitted with each subsequent year’s request for permit renewal. The requirements of this section shall not be required of any pit operation or stripping operation in existence at the effective date of this chapter;
(6) Statement of similar operations carried on by the applicant, including location by municipality. The requirements of this section shall not be required of any pit operation or stripping operation in existence at the effective date of this chapter;
(7) The type and daily number of vehicles to be used in the proposed operations;
(8) Detailed statement as to exactly what type of deposit is proposed to be extracted;
(9) Identification of access roads, on-site roads, a drainage plan that identifies grades for proper drainage and any special draining devices, fencing, any existing or proposed structures on the site existing and proposed utilities;
(10) A detailed reuse plan, drawn at a scale of one inch equals 200 feet, showing that the entire property will be left in a form that is suitable for development with uses that are permitted in the district, relating such reuse to uses existing or probable for surrounding properties. Among items to be included in such plan are feasible circulation patterns in and around the site, the treatment of the exposed soil or subsoil (including measures to be taken to replace topsoil in excavated areas) in order to make the property suitable for the proposed reuse, treatment of slopes to prevent erosion and delineation of drainageways and floodplains which shall be left undisturbed; and
(11) Presentation of an impact assessment which includes an evaluation of the social and ecological environment in and around the site.
(D) The following items must be addressed as well and any other characteristics unique to the site or area:
(1) Impact on the natural environment.
(a) Inventory and describe the existing vegetation and wildlife found on the site. To what extent will they be permanently impaired or eliminated as a result of the proposed operations?
(b) Will the proposed operations alter the existing drainage patterns of the area surrounding the site?
(c) What effect will the operations have on the quantity and quality of ground water in the area? What steps will be taken to protect wells on adjacent or surrounding property?
(d) How will the proposed operations affect air quality in the surrounding area, particularly regarding dust, blowing sand, vehicle emissions and the like?
(e) What noise levels will result from the proposed operations, and what steps will be taken to limit noise to an acceptable level?
(f) What natural features, such as unique topography, mature trees, natural streams, marshlands, swamps and the like will be destroyed or altered by the proposed operations?
(g) How will the proposed operations affect soil stability in the area?
(h) Are there potential historic or archaeologic characteristics which may be destroyed?
(i) Identify floodplains and the 100-year flood elevation.
(2) Impact on the social environment.
(a) How will the proposed operation affect the physical and cultural attractiveness of the surrounding area?
(b) What impact will the proposal have on landmarks and aesthetic views in the area?
(c) Will the proposed operations create a nuisance for residents in the area?
(d) What impact will the proposal have on neighborhood character and privacy in the area?
(e) How will the operation affect property values and the quality of housing in the adjoining areas?
(3) Economic impact.
(a) Will the proposal increase employment in the city or the county?
(b) How does the petitioner’s past performance indicate financial stability and ensure completion of the proposed project?
(c) Will the proposed operations impair the economic growth of any existing land uses?
(d) Will the proposed operations impair the usefulness or marketability of adjoining properties?
(4) Public service impact.
(a) What additional public services, such as police and fire protection, will be required as a result of the proposal?
(b) What impact will the proposal have on local tax revenues?
(c) Will the proposal significantly increase traffic congestion in the area?
(d) What effect will the truck traffic have on road conditions over the proposed haul route?
(e) Will the proposed haul route impact any other municipalities other than the city?
(E) The above required information is to be provided in sufficient detail to allow the city to systematically and thoroughly evaluate the potential impact of the proposed operations on the surrounding area and the community as a whole. The requirements of this section shall not be required of any pit operation or stripping operation in existence at the effective date of this chapter.
(1979 Code, § 5.404) (Ord. 96, passed 5-5-1987)
§ 152.17 PERMIT FEES.
To defray the cost of engineering services, investigation, publication charges and other administrative expenses incurred by processing such application, there is hereby established an application fee. Permits issued by the City Council shall be for a period of one year, expiring on March 31 of each year, and such permits may be renewed by the payment of an annual permit fee. The amount of the application fee and the annual permit fee shall be set each year by resolution of the City Council. Such permits shall be renewed as herein provided for so long as the permittee complies with all the provisions of this chapter, other ordinances, state law or other conditions of this permit.
(1979 Code, § 5.405) (Ord. 96, passed 5-5-1987)
§ 152.18 ISSUANCE OF PERMITS.
(A) After reviewing all of the information submitted by the applicant, other pertinent information and the recommendations of the Planning Commission, the City Council shall, at a regular or special meeting, determine whether or not a permit will be issued. The permit shall be issued in the event the City Council shall determine that the issuance of the permit would not detrimentally affect the public health, safety and welfare and that granting the permit, as proposed, would not:
(1) Permanently impair the intended land use potential of the property in question;
(2) Detrimentally affect the adjoining and adjacent properties;
(3) Be inconsistent with the planning, land use and zoning of the area where the proposed operation is to be located; and
(4) Violate or defeat any of the requirements and standards as set forth in this chapter.
(B) The commencement of operations during the time frame covered by the permit shall constitute acceptance of all limitations and conditions which the city may impose as a part of the permit under §§ 152.20 and 152.21 of this chapter.
(1979 Code, § 5.406) (Ord. 96, passed 5-5-1987)
§ 152.19 OPERATIONS INSPECTIONS.
As a condition for issuance of a permit under this chapter, the operator shall agree to two annual inspections by the City Engineer. Such inspections are for the purpose of determining compliance with all requirements of this chapter and any specific conditions applied to the individual permits. The two annual inspections shall be funded by the permit fees established in § 152.17. If additional inspections are required because of noncompliance, the cost of same shall be born by the applicant and paid prior to permit renewal.
(1979 Code, § 5.407) (Ord. 96, passed 5-5-1987)
§ 152.20 SPECIFIC REQUIREMENTS FOR PIT OPERATIONS.
(A) Where an excavation in excess of five feet will result from such operations, the applicant shall erect a fence with appropriate “KEEP OUT - DANGER” signs completely surrounding the portion of the site where the excavation extends, said fence to be not less than four feet in height, complete with gates, which gates shall be kept locked when operations are not being carried on. Where an operator can demonstrate that no attractive nuisance exists, the City Council may waive the requirement for fencing.
(B) Any roads used for the purpose of ingress and egress to said excavation site which are located within 300 feet of occupied residences, shall be kept dust free by surfacing with concrete, bituminous aggregate or approved chemical treatment. The City Council may waive the requirements hereof.
(C) Side slopes around the perimeter of the site and the banks adjacent to ponded water shall not have a slope exceeding one vertical foot for each two horizontal feet. The slope extending into the water shall also not exceed this ratio from the edge of the water out to a depth of five feet.
(D) Where quarrying operations result in a body of water, the owner or operator shall place appropriate “KEEP OUT - DANGER” signs on the perimeter fence not more than 200 feet apart. If the water supply of the city is adversely affected by any pumping or draining of water from such a quarrying operation, the city shall issue a cease and desist order and the operator shall comply therewith. A method of quarrying approved by the City Council shall be followed.
(E) No cut or excavation shall be made closer than 100 feet from the nearest street or highway right-of-way line nor nearer than 50 feet to the nearest property line; provided, however, that the City Council may prescribe more strict requirements in order to give sublateral support to surrounding property where soil or geographic conditions warrant it. In any reuse plan, the excavation may cut within 25 feet of any property line so long as the required slope commences at that point. Under no circumstances may such a cut be made for mining or stripping purposes.
(F) Sufficient topsoil shall be stockpiled on said site so that the entire site may be recovered with a minimum of four inches of topsoil. Revegetation of the pit shall be started as soon as the first ten acres are completely excavated and shall progress in stages as the excavation progresses. The slopes of the pit shall be graded and seeded in accordance with the approved reuse plan and in a manner that prevents erosion. Topsoil shall not be removed from the site until it is demonstrated that this requirement has been met.
(G) The City Council shall require more stringent requirements where the impact assessment and/or statement demonstrates the need for such in the interest of the public health, safety and general welfare.
(1979 Code, § 5.408) (Ord. 96, passed 5-5-1987) Penalty, see § 152.99
§ 152.21 SPECIFIC REQUIREMENTS FOR STRIPPING OPERATIONS.
(A) No earth materials, as defined herein, or similar materials shall be removed in such manner as to cause water to collect or to result in a place of danger or a menace to the public health. The premises shall at all times be graded so that surface water drainage off-site is maintained and is not interfered with.
(B) Sufficient topsoil shall be stockpiled on said site so that the entire site, when stripping operations are completed, may be recovered with a minimum of four inches of topsoil and the replacement of such topsoil shall be made immediately following the termination of the stripping operations each year. In the event, however, that such stripping operations continue over a period of time greater than 30 days, the operator shall replace the stored topsoil over the stripped areas, in two-acre increments, as he or she progresses.
(C) Any roads used for the purpose of ingress and egress to said stripping site which are located within 150 feet of occupied residences shall be kept dust free by surfacing with concrete, bituminous aggregate or approved chemical treatment.
(D) No stripping shall take place within 200 feet from any street right-of-way line or an adjoining residence, nor within 50 feet of any other property line; provided, however, that the City Council may prescribe more strict requirements in order to protect nearby residences from any potential adverse impacts of the stripping operation.
(E) In order to prevent all unnecessary dust and blowing of sand or other soil materials, there shall be no stockpiling of sand in excess of 5,000 cubic yards and all stockpiles shall be restricted to a maximum height of 25 feet.
(F) The City Council shall prescribe more stringent requirements if deemed necessary in the interest of the public health, safety and welfare, as demonstrated by the impact assessment and/or statement.
(1979 Code, § 5.409) (Ord. 96, passed 5-5-1987)
§ 152.22 PLANS FOR REUSE.
(A) The property shall be fully reclaimed in accordance with the approved reuse plan, no later than one year after extractive operations are complete. Noncompliance with this requirement shall be grounds for forfeiture of the operator’s performance bond.
(B) Plans for reclamation designed to make reuse possible shall be carried out and the property fully reclaimed in accordance with the plan no later than one year after cessation of extractive operations at the site.
(1979 Code, § 5.410) (Ord. 96, passed 5-5-1987) Penalty, see § 152.99
§ 152.23 PRIOR EXISTING REMOVAL OPERATIONS.
Earth material removal operations which existed prior to the effective date of this chapter shall obtain a permit as required herein. In order to obtain a permit as required under this chapter, except as otherwise provided, previously existing operations shall comply with all provisions of this chapter, except in cases where excavations already exist which are closer to property lines or road rights-of-way than permitted in this chapter, such noncompliance will be permitted, but the excavation may not be extended in any manner which would increase the noncompliance and, to the extent topsoil is unavailable for storage, to such extent topsoil storage is waived.
(1979 Code, § 5.411) (Ord. 96, passed 5-5-1987)
§ 152.24 SURETY.
(A) The City Council shall, to ensure strict compliance with any regulations contained herein or required as a condition for the issuance of a permit for the removal of earth material, require the permittee to furnish surety in the form of cash, a bank letter of credit or a bond executed by a reputable surety company authorized to do business in the state.
(B) The amount of such surety shall be at least $1,000 for each acre of land owned or leased by the operator and may be greater if deemed necessary by the City Council to ensure compliance with this chapter. In fixing the amount of such surety, the probable cost of rehabilitating the premises upon default of the operator, estimated expenses to compel the operator to comply with court orders and any other relevant factors shall be considered.
(C) Excess funds, if any, shall be returned with interest to the depositor, upon completion of the rehabilitation of the premises. Upon presentation to the City Council of hardship circumstances, in conjunction with a plan giving a method whereby security is offered sufficient to assure the city that the reuse plan can be completed, the City Council may accept said alternative means of security.
(1979 Code, § 5.412) (Ord. 96, passed 5-5-1987)
§ 152.25 DUMPING RESTRICTIONS.
No earth materials or other material of any sort in amounts exceeding five cubic yards shall be dumped or otherwise deposited on any property within the city without reporting the intent to do same in writing to the City Clerk 24 hours in advance of such dumping or depositing.
(1979 Code, § 5.413) (Ord. 96, passed 5-5-1987) Penalty, see § 152.99
§ 152.40 CONSTRUCTION REQUIREMENTS.
All ponds shall be designed, constructed and approved in accordance with the following requirements.
(A) A building permit shall be obtained prior to the construction of all ponds, enlargement of an existing pond or cleaning of a pond that results in the removal of over 30 yards of material. A site plan shall be submitted to the City Clerk which shows all features of the proposed pond. If the plans show that all requirements of this division (A) and division (B) below have been complied with, a permit will be issued. If all requirements are not met, permit shall not be issued.
(B) Only excavated ponds are permitted. No embarkment ponds shall be constructed. Ponds created by damming of rivers or streams must have the State Department of Natural Resources and/or the St. Clair County or Macomb County (whichever jurisdiction shall apply) Drain Commissioner’s approval.
(C) All ponds shall be constructed to the standards of the USDA Soil Conservation Service Technical Guide 378, Design Criteria for Excavated Ponds, which is hereby made a part of this chapter and shall also comply with the following additional requirements.
(1) Where a pond will be used for swimming, there shall be no slope in excess of five feet horizontal to one foot vertical until the water reaches a depth of five feet.
(2) Excavated materials, in excess of 1,000 cubic yards, shall not be hauled off the site unless a permit is obtained pursuant to the requirements of this chapter for soil removal operations.
(3) Where a pond will be used for swimming, there shall be a minimum of two life stations on opposite sides, complete with life ring, 50 feet of suitable rope, a pole of at least ten feet and a ten foot wooden ladder.
(4) There shall be a minimum setback of 50 feet from the edge of the excavation to all adjacent property lines and 100 feet from any street right-of-way or adjacent residential dwelling.
(5) There shall be a minimum setback from a septic tank and/or tile disposal field of at least 100 feet.
(6) Plans submitted shall show the location and approximate depth of any domestic water supply well.
(7) There shall be a minimum setback of 25 feet from the excavation to the nearest point of any side of the applicant’s house or accessory buildings.
(1979 Code, § 5.414) (Ord. 96, passed 5-5-1987)
§ 152.41 EXCAVATIONS OR HOLES.
(A) The existence within the limits of the city of any unprotected, unbarricaded, open or dangerous excavations, holes, pits or wells which constitute a hazard to the public health, safety or welfare, is hereby prohibited and such excavations, holes, pits or wells are hereby declared a public nuisance. However, the provisions of this section shall not prevent excavations for which a permit has been issued pursuant to the provisions of this chapter or Ch. 154 where such excavations are properly protected and, provided further, that this section shall not apply to drains created or existing by authority of the state, St. Clair County, Macomb County, the city or other governmental agencies.
(B) When the Chief of Police shall determine a nuisance to exist as herein defined, he or she shall notify the owner or lessee as shown on the latest tax rolls in writing of such finding and require the owner or lessee to abate such nuisance within a reasonable time, in no event less than 30 days. In the event the property owner or lessee fails to abate such nuisance without just cause, then the City Council, after hearing, may abate such nuisance and the cost or reasonable value of such work shall be placed as an assessment against said property on the next assessment roll.
(1979 Code, § 5.415) (Ord. 96, passed 5-5-1987) Penalty, see § 152.99
§ 152.42 DRAINAGE AND EROSION CONTROL.
Existing drainage patterns shall not be altered so as to result in flooding of any adjacent or surrounding properties. Also, all operations involving the moving or removal of earth materials shall comply fully with Public Act 451 of 1994, being M.C.L.A. §§ 324.9101 through 324.9123a.
(1979 Code, § 5.416) (Ord. 96, passed 5-5-1987)
§ 152.99 PENALTY.
(A) Any person, firm, corporation or other organization which violates, disobeys, omits, neglects or refuses to comply with, or resists the enforcement of any provision of this chapter, shall be fined upon conviction, not more than $500, together with the costs of prosecution, or shall be punished by imprisonment in the county jail for not more than 30 days for each offense, or may be both fined and imprisoned, as provided herein in the discretion of the court. Each and every day during which such violation continues shall be deemed a separate offense. The imposition of any sentence shall not exempt the offender from compliance with the provisions of this chapter.
(B) If a violation occurs, the city shall notify the operator and/or the applicant in writing that his or her permit will be terminated if said violation has not been corrected within ten days of receipt of the notice.
(C) The City Council may institute injunctive proceedings to prevent or enjoin any violation of the provisions of this chapter. The rights and remedies provided herein are cumulative and in addition to other remedies provided by law.
(1979 Code, § 5.417) (Ord. 96, passed 5-5-1987)