Pendleton Town City Zoning Code
ARTICLE XIV
Excavations and Fill
[Added 6-13-2022 by L.L. No. 2-2022[1]]
§ 247-87 Management; permits; fees.
Findings. It is hereby determined that:
Excavation and/or fill activities create pits, holes or hollows in the earth, leaving it in a hazardous or dangerous state, or cause soil erosion, which depletes the land of its natural vegetative cover and supply of organic materials, and renders such land unproductive and unsuitable for agricultural purposes or undesirable for building homes.
Excavation and/or fill activities can be controlled and their impacts minimized through the regulation of these activities.
Purpose. The purpose of this section is to establish the management of excavation and/or fill activities within the Town boundaries and to protect and safeguard the general health, safety, and welfare of the public residing within this jurisdiction. This section seeks to meet those purposes by achieving the following objectives:
The orderly operation of all excavations and/or fill activities and related soil disturbances.
The restoration of affected lands.
The retention of taxable value of property.
The retention of natural beauty and aesthetic values in the affected areas.
The preservation of the quality of life for residents.
The retention of topsoil with the Town of Pendleton.
Definitions. As used in this § 247-87, the following terms shall have the meanings indicated:
That person making application for a permit and who is responsible for fulfilling the requirements for the restoration plan and all rules and regulations promulgated hereunder. If the applicant is other than the property owner, written proof must be presented showing authorization from the property owner for the applicant.
A cavity, hole, or pit on land formed by digging for the purpose of extracting clay, stone, gravel, sand, or other natural materials or the topsoil therefrom.
The placement of natural materials on any land surface.
The extraction of overburden and minerals from the earth; the preparation and processing of minerals, including any activities or processes or parts thereof for the extraction or removal of minerals from their original location and the preparation, washing, cleaning, crushing, stockpiling or other processing of minerals at the mine location so as to make them suitable for commercial, industrial or construction use, exclusive of manufacturing processes at the mine location; the removal of such materials through sale or exchange, or for commercial, industrial or municipal use; and the disposition of overburden tailings and waste at the mine location. Mining shall not include the excavation, removal and disposition of minerals from construction projects, exclusive of the creation of water bodies, or excavations in aid of agricultural activities.
Surface earth, including the organic layer in which most plants have their roots.
Prohibited acts. The following are prohibited acts and are not to be considered a use by right or allowable by special use permit in any zoning district within the Town:
Placing, depositing or permitting to be placed or deposited any debris, fill, sand, stone or other solid materials of any kind or nature or construction of any kind into or across any stream, ditch, culvert, pipe, watercourse or other drainage system which results in an adverse impact.
Construction, soil movement and/or regrading where alteration of the natural drainage patterns which result in an adverse impact.
Exceptions. The following operations and uses are hereby excepted from the application of this section:
Excavations or removal of stone, gravel, clay, sand, shale or other natural materials, subsoil or topsoil incident to highway, sidewalk, or driveway construction to the extent that said materials are removed solely from the bed of said highway, sidewalk or driveway.
Excavations or removal of stone, gravel, clay, sand or other natural materials, subsoil or topsoil from one part of the same premises incident to the construction of a building or other improvement of land or incident to landscaping. The moving in excess of 100 yards or more of such materials will be subject to approval by the Code Enforcement Officer/Building Inspector.
Removal of excess stone, gravel, clay, sand or other natural materials, subsoil or topsoil from the area of a subdivision granted final approval by the Planning Board, provided that any such removal is in accordance with the plans and specifications approved by said Planning Board. See Chapter 220, Subdivision of Land.
Excavations or removal of stone, gravel, clay, sand or other natural materials, subsoil or topsoil incident to the construction and/or repair of privately owned water, sanitary or storm sewer systems.
The above restrictions shall not apply to work or construction done under a permit issued by the State of New York or County of Niagara.
Application. All applicants for a permit to do any of the acts set forth above shall present plans to the Code Enforcement Officer/Building Inspector, which plans shall be inclusive of, but not limited to, the following:
Application form.
A narrative description of the proposed excavation and/or fill activities, including a restoration plan for the disturbed area. For fill activities, the source of the natural material must be identified.
A duly acknowledged, notarized consent in writing of the owner of the premises, including his/her address.
Certificate from the Receiver of Taxes of the Town and the County Treasurer showing payment of all taxes or assessments to date against the property described in the application.
A certified estimate, prepared by a professional engineer or land surveyor licensed in the state, showing the total number of cubic yards of materials to be generally regraded, excavated, removed from or brought to the property during each of the described stages of the proposed operation and time schedule.
A drawing at a scale of 100 feet to an inch or larger on a sheet not larger than 36 inches by 48 inches prepared by a professional engineer or land surveyor licensed in the state showing the following information:
The location and survey data of the premises where it is proposed to generally regrade, excavate, remove, or fill earth products.
All streets adjoining and within 200 feet of the premises.
All existing buildings or structures on the premises or within 200 feet of the premises.
Existing and proposed elevations at each described stage in the proposed operation for the premises and all land within 200 feet of its boundaries, shown on a horizontal grid system with a fifty-foot interval, and also on a cross section derived from that grid system. Additional elevations shall be shown at each break in the grades and along the center line of all adjoining streets.
Present and proposed surface water drainage and natural drainage features.
A key map at the scale of 600 feet to one inch indicating the relationship to the highway pattern, school and Town boundaries and zoning districts.
A certification by a duly licensed professional engineer or land surveyor in the state that the existing grades and elevations are based on an actual field survey.
Any project, including excavation and/or fill activities, which will disturb greater than one acre of surface area, shall comply with the regulations under Article XIII, Stormwater Management Regulations, of Chapter 247, Zoning, of the Town Code and requires the preparation of an SWPPP as defined in that article and section. If coverage under the New York State SPDES permit program and preparation of an SWPPP is required, then application for site plan review and approval by the Planning Board is required.
The Code Enforcement Officer/Building Inspector may require additional data or waive any requirements in appropriate cases.
After receipt and review of the complete application package, the Code Enforcement Officer/Building Inspector will make a determination of whether the application reflects a minor or major impact.
If determined to be minor, the Code Enforcement Officer/Building Inspector will have the responsibility of handling the application process.
If determined to be major, the Code Enforcement Officer/Building Inspector will forward the application package to the Planning Board for site plan review in accordance with § 247-54 of the Town Code, which shall include environmental review under SEQRA and a public hearing. See § 247-54, Site plan review; performance and design standards.
The Code Enforcement Officer/Building Inspector or Planning Board (if site plan review is warranted) may solicit the help and or expertise of the Town Highway Superintendent to aid in the process and/or for post-construction inspection.
Effect of permit issuance. The issuance of a permit by the Town pursuant to this § 247-87 shall not obligate the Town to any costs in connection with the work performed under the permit and shall not obligate the Town to maintain any such improvements.
Duties of the Building Inspector/Code Enforcement Officer. In the exercise of his/her discretion to grant or deny any permit, the Code Enforcement Officer/Building Inspector shall give consideration to the effect such proposed construction may have on the drainage, health, beauty, preservation of natural resources and control of pollution and welfare of the Town and shall deny any such permit where, in his/her judgment, he/she determines such proposed construction is detrimental to the drainage, health, beauty, preservation of natural resources and control of pollution and welfare in the Town. If the plans submitted pursuant to § 247-87F, above, were accompanied by a SWPPP, the Code Enforcement Officer/Building Inspector shall deny the permit if such SWPPP and plans do not comply with the requirements of Article XIII, Stormwater Management Regulations; Drainage, of Chapter 247.
Expiration; renewal. Excavation and/or fill permits, other than those for topsoil stripping and removal only, shall expire by limitation one year from the date of issuance unless extended by the Town Board.
Permits for topsoil stripping and removal only shall expire by limitation 60 days from the issuance unless extended by the Town Board.
The renewal of an expired permit for topsoil stripping and removal without change in the extent of the work may be approved by the Town Board.
The renewal of an expired permit for other excavation and/or fill projects without change in the extent of the work may be approved by the Town Board with the payment of a permit fee (same as original application fee) as described in § 247-87K, Fees, below.
The renewal of any permit, which extends the project scope of the work, shall be processed as a new application.
Enforcement; penalties for offenses.
Any person, firm entity or corporation found to be violating any provisions of this Article XIV shall be served with a written notice at the direction of the Town Board stating the nature of the violation and providing for a thirty-day time limit for the satisfactory correction thereof. The offender shall, within the period stated in such notice, correct or remove all violations.
Any person, firm, entity or corporation who or which shall continue any violation beyond the time limit provided for in Subsection J(1) above shall be guilty of a violation and, upon conviction thereof, be fined in an amount not exceeding $2,500 or imprisoned for a term not exceeding 15 days, or both, for each violation. Each week in which such violation shall continue shall be deemed a separate offense.
In the event that any person, firm, entity or corporation shall continue any violation beyond the time limit provided for in Subsection J(1) above, the Town Board may direct the Town Attorney to apply to the Supreme Court for any order directing that the violation be corrected or removed and that all costs and expenses incurred by the Town in connection with the proceedings, including the actual cost of correction or removal, shall be assessed against the offenders.
Fees. For appropriate fees, see the Town of Pendleton Fee Schedule, adopted by the Town Board by resolution, as may be amended from time to time.