Montgomery Town City Zoning Code
§ 235-7.10
Mining Districts.
A.
Permitted uses. No person shall do, conduct, perform, or engage in any mining, or operate a mine, within the Town on or after the effective date of the addition of § 235-7.10 to this chapter except within a Mining District as hereinafter defined and except in compliance with the provisions of § 235-7.10 of this chapter. Mining shall be permitted in a Mining District within the Town as hereinafter provided in this section. However, this restriction shall not apply to mining operations that are conducted in support of a viable and valid farm operation. Any such minerals extracted in support of a viable and valid farm operation must be used on the farm parcel in aid of the agricultural activity unless it can be shown that such on-site use creates a hardship for the farm operation.
B.
Designation of Mining Districts. Mining shall be allowed in districts designated by the Town Board of the Town of Montgomery (hereinafter referred to as "Town Board") as provided in Subsection C of this section. It is the intention of this section to allow the creation of a Mining District at any location deemed appropriate by the Town Board; provided, however, that the Town Board shall consider the general zoning classification in which a proposed Mining District is located, along with other factors specified in Subsection D of this section, in determining whether to create a Mining District.
C.
Procedure for designation of Mining Districts.
(1)
Districts coincident with existing mined zoning plans. The Town of Montgomery Building Department (hereinafter referred to as "Building Department") shall, within 30 days following the effective date of this section, identify those areas of land currently being mined or currently approved to be mined pursuant to a site plan approval granted by the Town Planning Board, the DEC, or both. The Building Department shall report its findings, in writing, to the Town Board. The Town Board shall after review and consideration of the information presented in the Building Department report, and after public notice and hearing, determine if the Town of Montgomery Zoning Map shall be amended to identify such Mining Districts. Once designated in the Zoning Map, such areas of land shall constitute Mining Districts for the purposes of this section.
(2)
Creation of new districts. All new Mining Districts shall be created by the Town Board in accordance with the following procedure:
(a)
Except as provided for in Subsection C(1), any person wishing to petition the Town for the creation of a Mining District shall submit to the Town Clerk an original and 11 copies of the application submitted by such person to the DEC for a mining permit for the mine in the proposed Mining District, or a signed application on a form prescribed by the Town Board which shall contain at least the following information and documents:
[1]
The name, address and telephone number of the applicant, together with the name of the person to contact for further information, if the applicant is not an individual.
[2]
A map, prepared by a licensed engineer or surveyor, showing the boundaries of the proposed Mining District, as well as a key map showing its approximate location in the Town of Montgomery. The scale of the map shall be no less than one inch equals 100 feet, unless the Town Board, by resolution, allows a smaller scale.
[3]
A description of the proposed mining operation, including the type of material to be mined, equipment to be used, approximate tonnage for each year of the next five-year period, and the anticipated useful life of the mine. For the purposes of the preceding two subsections, a mining plan prepared pursuant to Title 27, Article 23, of the New York State Environmental Conservation Law and regulations promulgated thereunder shall be sufficient, provided that the Town Board is satisfied that all relevant requirements thereof have been met; provided, further, that the applicant shall meet all applicable requirements of this section in submitting said mining plan.
[4]
A reclamation plan, including both a graphic and a narrative description of the proposed zoning objective to be achieved in the final stage of reclamation, the proposed method of reclaiming the affected land, providing, where possible, for orderly, continuing reclamation concurrent with mining and a schedule for reclaiming the affected land. The reclamation plan shall contain at least the information required by Title 27, Article 23, of the New York Environmental Conservation Law and any regulations promulgated thereunder, and such plan shall be sufficient, provided that the Town Board is satisfied that all relevant requirements thereof have been met; provided, further, that the applicant shall meet all applicable requirements of this section in submitting said reclamation plan.
[5]
A full environmental assessment form, prepared by a licensed professional engineer or other licensed professional, to assist the Town Board in its determination of environmental significance of the proposed creation of the Mining District under the New York State Environmental Quality Review Act.
[6]
A fee in the amount to be determined by the Town Board which will reimburse the Town for the expenses paid by the Town to the Town Engineer and other designated Town consultants for reviewing the application.
(b)
The Town Clerk shall forthwith file the original of the application and forward the copies as follows: two to the Town Supervisor, who shall in turn forward one copy to an engineer retained by the Town Board for review and recommendations; one to each remaining Town Board member; one to the Town Attorney or his designee; three to the Chairman of the Town Planning Board; and one to the Orange County Department of Planning and Economic Development, with a request for a report and recommendation when required by General Municipal Law § 239-m.
(c)
The Town Board shall consider the application at its first regular meeting occurring at least 10 days following the filing of a complete application with the Town Clerk or at such other time and date as the Town Board shall determine. The Town Board shall discuss the application with the applicant and shall request any additional information it needs to consider the application. The Town Board may schedule a workshop to discuss the application with the applicant and the Town Planning Board. The Town Board shall also schedule a public hearing to be held at its next regular meeting after receipt of the recommendation (if any) from the Town Planning Board or at any other time and date it shall determine. Notice of the public hearing shall be published in the official newspaper of the Town and posted on the official bulletin board of the Town Clerk at least 10 days prior thereto. The Town Board shall also take whatever steps are necessary to comply with the New York State Environmental Quality Review Act, and the public hearing on the application may be combined with a public hearing on any draft environmental impact statement which the Town Board may require.
(d)
At least seven days prior to the public hearing, the applicant shall send notice thereof by certified mail, return receipt requested, to the owners of record of all properties within 500 feet of the proposed boundaries of the district, or such other distance as the Town Board may deem advisable. Prior to the public hearing, the applicant shall submit to the Town Clerk an affidavit sworn and subscribed before a notary public containing the following information: the names and addresses of all such property owners; a statement verifying that all such property owners' names and addresses are contained on the list; and a statement that all such property owners were properly served. The applicant shall simultaneously also submit the certified mail return receipts for all property owners served along with the affidavit.
(e)
The cost of preparing, publishing and mailing the required notices shall be borne by the applicant. The Town Board shall cancel the public hearing if the applicant fails to submit all of the required information.
(f)
The Town Board shall conduct the public hearing, affording all interested persons an opportunity to speak. At the conclusion of the public hearing, the Town Board shall direct the applicant to submit any additional information it determines is necessary to a determination of the application, if any. The Town Board shall formally act on said application no later than 62 days after the close of the public hearing.
(g)
Prior to acting upon said application, the Town Board shall obtain a written recommendation from the Town Planning Board as to whether the Mining District shall be created. The Town Planning Board shall furnish such recommendation within 45 days after a request therefor from the Town Board. If the Planning Board fails to provide such recommendation within the forty-five-day period, then the Town Board shall be free to proceed with the application. Any recommendation offered by the Planning Board shall be advisory only and shall not be construed to be binding upon the Town Board.
(h)
In the event of a determination by the Town Board creating a new Mining District, the Town Board shall cause the Town of Montgomery Zoning Map to be amended accordingly and shall forward copies of the petition to the Town Planning Board.
D.
Standards for the creation of Mining Districts. In considering an application for the creation of a Mining District, the Town Board shall consider all relevant factors, including the following:
(1)
The consistency of the proposed Mining District with the Town of Montgomery Comprehensive Plan and the Zoning Local Law.
(2)
The character of the neighborhood in which the proposed Mining District would be located.
(3)
The general zoning classification of the area in which the proposed Mining District would be located.
(4)
The proximity of the proposed Mining District to other Mining Districts or mining operations.
(5)
The proximity of the proposed Mining District to other parcels of land which, in the future, might be the subject of a petition for the creation of a Mining District.
(6)
Impact of the mine operation on the immediate area and any haulageways.
(7)
Any other factors the Town Board considers relevant.
E.
Term, existence and termination of Mining District. Every Mining District once created shall remain in existence for a period of one year from the date of its creation and approval or during the period of a New York State Department of Environmental Conservation mining permit or renewal period of the mining permit or until the abandonment of mining activities therein (either upon the termination of the mining permit term without renewal or otherwise), whichever is later. Upon the permanent termination of mining operations therein, the owner of the premises or the person responsible for the mining operations conducted therein shall commence reclamation of the premises in accordance with the reclamation plan. If the responsible person has not commenced reclamation within 60 days following the permanent termination of mining activities or fails to complete reclamation in accordance with the reclamation plan, the Town may take whatever steps are necessary to accomplish or complete said reclamation, including resort to litigation and resort to the undertaking provided by the mining operator upon the granting of the mining permit. The mining operator shall advise the Town Planning Board, in writing, upon the commencement and completion of reclamation.
F.
Issuance of Town Board mining special permits.
(1)
The Town Board shall be authorized to issue Town Board mining special use permits. No person shall do, conduct, perform, or engage in mining, or operate a mine within the Town, except within a Mining District and except pursuant to a Town Board mining special use permit issued by the Town Board in accordance with the procedures set forth in this subsection; provided, however, that it shall be permissible to remove minerals from any parcel of land on a casual basis for noncommercial use without establishing a Mining District or obtaining a Town Board mining special use permit therefor, but in no event shall more than 1,000 tons or 750 cubic yards, whichever is less, of minerals be removed from any parcel of land during any twelve-month period. Any mine site for which the New York State Department of Environmental Conservation has issued a valid mining permit prior to the effective date of this section and for which the Town Planning Board has approved the site plan prior to the effective date of this section may continue to be operated (subject to the terms and conditions of said mining permit and site plan approval) without the issuance of a Town Board mining special use permit hereunder, as long as said mine site is not expanded or enlarged beyond the area, size or scope set forth in said mining permit and site plan approval; any expansion or enlargement of said mine site beyond the area, size or scope set forth in said mining permit and site plan approval shall require the operator thereof to apply for, and obtain, a Town Board mining special use permit pursuant to this section of the Zoning Local Law.
(2)
Applicants for a Town Board mining special use permit shall submit to the Town Board 11 copies of the application submitted by such person to the DEC for a mining permit for the mine in the Mining District or a signed Town application therefor. If the Town application is submitted, such Town application shall contain the same information as that required for the creation of a Mining District under Subsection C(2) of this section. In the case of the initial creation of a Mining District, the permit application may be combined with the petition for the creation of the Mining District when submitted to the Town Board. The Town Board shall require the applicant to pay a fee in the amount which will reimburse the Town for the expenses paid by the Town to the Town Engineer and designated Town consultants for reviewing the application; provided, however, that when an applicant applies for a Town Board mining special use permit concurrently with an application for the creation of a Mining District, the fee paid pursuant to the application shall be sufficient.
(3)
The Town Board shall consider the application for a Town Board mining special use permit at its next regular meeting following 10 days after receipt of a complete application.
(4)
When the applicant has submitted a complete application, the Town Board may grant and approve a Town Board mining special use permit for a mine which meets the following criteria:
(a)
The applicable provisions prescribed for the Town Board mining special use permit have been met.
(b)
The mining conforms with all applicable regulations governing the Mining District where it is to be located.
(c)
The proposed use will be in harmony with the Town of Montgomery Zoning Local Law and will not adversely affect the neighborhood if the requirements imposed by the Town of Montgomery Zoning Local Law are met.
G.
Conditions.
(1)
In the case of a Town Board mining special use permit, conditions placed on such a Town Board mining special use permit by the Town Board shall be limited to the following:
(a)
Ingress and egress to public thoroughfares controlled by the Town;
(b)
Routing of mineral transport vehicles on roads controlled by the Town;
(c)
Requirements and conditions as specified in the permit issued by the Department of Environmental Conservation under Article 23 of the Environmental Conservation Law concerning setback from property boundaries and public thoroughfare rights-of-way, natural or man-made barriers to restrict access, if required, dust control and hours of operation, when such requirements and conditions are established pursuant to Subdivision 3 of § 23-2711 of the Environmental Conservation Law;
(d)
Enforcement of reclamation requirements contained in mined land reclamation permits issued by the New York State Department of Environmental Conservation.
(2)
Notwithstanding the foregoing, to the extent authorized by law, if the Town Board is the lead agency for purposes of the environmental review of the application for the Town Board mining special use permit, the Town Board may impose reasonable conditions and restrictions related to the potential negative environmental impact of the mining operation as are directly related to and incidental to the proposed Town Board mining special use permit. If the Town Board is not or has not been the lead agency for purposes of the environmental review of the application for the Town Board mining special use permit or DEC mining permit, the Town Board may request that the lead agency impose some or all of the above-described conditions and restrictions.
H.
Term of the Town Board mining special use permit. The term of the Town Board mining special use permit shall be coincident with the term of any mining permit or renewal thereof issued to the applicant by the New York State Department of Environmental Conservation. Otherwise, the term shall be four years.
I.
Bond. Each Town Board mining special use permit shall include a requirement that the applicant submit a bond (if DEC does not require one), which such surety and in such amounts as the Town Board shall prescribe, in favor of said Town Board, conditioned upon the satisfactory reclamation of the mining site upon the completion of mining operations thereon.
J.
Renewals. The applicant shall, upon the expiration of each Town Board mining special use permit period, obtain a renewal for a like term by filing an application therefor with the Town Board on a form prescribed by the Town Board, or by filing a copy of the DEC renewal form for the subject mine (if there is such a DEC renewal form). In entertaining said renewal application, the Town Board shall consider, to the extent appropriate and applicable, the same factors considered by the Town Board for an initial application, together with the performance of the renewal applicant under previous permits. The Town Board shall require the applicant to pay a fee in the amount which will reimburse the Town for the expenses paid by the Town to the Town Engineer and designated consultants for reviewing the renewal application.
K.
Inspections and reports.
(1)
The Town Board or the Town Building and Code Inspector, or any engineer engaged pursuant to this subsection, shall conduct such periodic inspections, on reasonable notice to the mine operator, as they shall deem necessary to ensure compliance with the terms of the Town Board mining special use permit and this section.
(2)
The Town Board may use the Town Building and Code Inspector to inspect each mining operation to determine on a systematic basis its compliance with the Town Board mining special use permit and the provisions of this section and to report such determination to the Town Board. The Town Board may devise a schedule for the orderly and systematic inspection of each mining operation.
(3)
At least 30 days prior to the anniversary of the granting of a Town Board mining special use permit, each mining operator shall submit 10 copies of a report, certified by the applicant, showing graphically and by narrative the extent of the operations carried on over the previous year, including any variance from the mining plan. If the Town Planning Board finds the report or the applicant's compliance with the Town Board mining special use permit to be defective or deficient in any way, it may consider its expenses of discovering or remedying any such defect in establishing the fee upon the next occurring renewal of the Town Board mining special use permit.
L.
Violations.
(1)
The Town Building and Code Inspector shall report, in writing, any violations of the Town Board mining special use permit, any violation of this section of the Zoning Local Law, or any apparent violations of applicable United States, New York State or local statutes, local laws, codes, rules or regulations to the Town Board and to the Town Attorney, who shall take whatever steps are available under the Zoning Local Law or any other law to remedy such violations.
(2)
For a violation of a section of the Zoning Local Law or a violation of any provision, term or condition of a Town Board mining special use permit issued pursuant to this section hereof, the provisions of § 235-16 of this chapter shall be applicable. Nothing herein shall prevent the Town from pursuing and enforcing remedies and sanctions pursuant to this section of the Zoning Local Law.