The text
Footnotes:
--- (3) --- Cross reference— Excavations, § 70-3.
DIVISION 1. - GENERALLY#
Sec. 38-56. - Definitions.#
Earth removal means the extraction or removal of any sand, gravel, loam, topsoil, stone, mineral, clay or shale, from deposits on any tract of land; excluding, however, extracting, removing, digging, mining or quarrying limestone, lime rock or granite; and excluding operations of a sand and gravel plant currently in operation, and immediately surrounding 20 acres of industrial zoned land upon which such sand and gravel plant is located, and excluding also earth removal involved in the process of grading land: (1)
For the construction of building for which a building permit has been issued;
(2)
For the construction of a roadway; or
(3)
For a subdivision in accordance with a plat plan approved by or in accord with an ordinance of any city or town or any duly authorized board of authority of such city or town.
(Code 1967, § 8A-1; Ord. of 1-11-10)
Cross reference— Definitions generally, § 1-2.
Sec. 38-57. - Penalty for violation of article.#
(a)
Violators of any of the provisions of this article shall, upon conviction, be punished according to the provisions of section 1-7.
(b)
Suit may be instituted in the superior court in the name of the town to restrain any violation of, or compel compliance with this article.
(c)
The town council shall have the authority, following adequate notice to the licenseholder and a hearing, to revoke any license obtained under provisions of this article for violations of any provisions of this article.
(Code 1967, § 8A-16; Ord. 1-11-10)
Sec. 38-58. - Hours of operation.#
All such earth removal operations shall be carried on only between the hours of 7:30 a.m. and 6:00 p.m. on any Monday, Tuesday, Wednesday, Thursday, Friday or Saturday, except a legal holiday. Operations shall not be carried on at any other hours, nor on Sunday, nor on a legal holiday except upon issuance of a special exception from the town council.
(Code 1967, § 8A-6; Ord. 1-11-10)
Sec. 38-59. - Setback requirements.#
The initiation or lateral expansion of earth removal is prohibited within a distance of: (1)
Twenty-five feet of the boundary of the tract of land upon which earth removal is to be carried on adjacent to residential property; or
(2)
Within 50 feet of any dwelling, whichever is greater.
(Code 1967, § 8A-7; Ord. of 1-11-10)
Sec. 38-60. - Fencing requirements.#
Fencing is required around those portions of the boundary of the tract of land upon which earth removal is being conducted adjacent to developed residential property. Such fencing shall be five feet in height and shall be effective to control access to the area in which such earth removal is being conducted.
(Code 1967, § 8A-8; Ord. of 1-11-10)
Sec. 38-61. - Dust control.#
Calcium chloride or oil shall be applied to nonpaved roads to be used for vehicular ingress or egress to such tract of land and to the regularly traveled roads within such tract of land on which earth removal is to be conducted.
(Code 1967, § 8A-9; Ord. of 1-11-10)
Sec. 38-62. - Drainage.#
Drainage shall be provided on tracts of land on which earth removal is to be conducted to prevent the permanent collection and stagnation of surface or underground waters, and to prevent the flooding and erosion of surrounding property.
(Code 1967, § 8A-10; Ord. of 1-11-10)
Sec. 38-63. - Property previously obtained for earth removal purposes.#
Real property acquired or leased prior to the effective date of the enabling act for the purpose of earth removal and held for such purpose on January 28, 1974, shall be considered in use for earth removal whether or not extracting has been actually commenced, and a license for earth removal on such property shall be issued pursuant to section 38-81 upon compliance with the provisions of sections 38-81 and 38-83. In order for real property to qualify under this article, the following conditions shall be considered as conclusive evidence that such real property was acquired or leased and held for the purpose of later earth removal: (1)
Such real property was acquired or leased prior to January 28, 1974.
(2)
Such real property was acquired or leased by an individual, corporate or otherwise, engaged at the time of acquisition in the business of earth removal.
(3)
Such real property, or the substantial portion of such property has not been permanently developed, for any residential, commercial, other than farm or agricultural, or industrial purpose.
(4)
Such real property contains mineral deposits of a demonstrable economic value.
(5)
If the owner or lessee of any such tract of land shall file in the office of the town clerk, as the case may be, on or before April 1, 1974, a statement setting forth his intention to engage in earth removal on such tract of land and describing such tract of land, then such tract of land shall be deemed to qualify under this section, and, as to any tract of land for which such intention is not so filed, then the provisions of this section shall have no force and effect.
(Code 1967, § 8A-11; Ord. of 1-11-10)
Sec. 38-64. - Town operations to comply with article.#
If the town shall engage in earth removal for municipal purposes, it shall comply with the provisions of this article.
(Code 1967, § 8A-12; Ord. of 1-11-10)
Sec. 38-65. - Operations already in existence.#
This article shall apply to earth removal being conducted on the date of its enactment on any tract of land within the town 60 days after enactment. Upon submission to the building inspector of the plan and all other material as required under section 38-83, except that no such plan need set forth existing contours for that portion of any tract of land on which earth removal has been completed on January 28, 1974, the town council shall forthwith issue a license for the continuance of earth removal on any such tract of land.
(Code 1967, § 8A-13; Ord. of 1-11-10)
Sec. 38-66. - Exceptions.#
Upon application and after a showing that the literal enforcement of the article will work a hardship, the town council may grant an exception to the terms of this article upon a finding that such exception will not result in a substantial negative effect on surrounding property.
(Code 1967, § 8A-14; Ord. of 1-11-10)
Sec. 38-67. - Appeals.#
Appeals from the decisions of the town council shall be taken in the same manner as other appeals from the town council sitting as a licensing board.
(Code 1967, § 8A-15; Ord. of 1-11-10)
Secs. 38-68—38-80. - Reserved.#
DIVISION 2. - LICENSE#
Sec. 38-81. - Required; fee.#
A condition precedent to any earth removal shall be the obtainment of a license to be issued by the town council upon the submission of the documents required by section 38-83 and its approval of such section, and the payment of the currently required license fee.
(Code 1967, § 8A-2; Ord. of 1-11-10)
Sec. 38-82. - Issuance.#
The town council of the town may issue licenses. Such permission shall be restricted and exercised in accordance with this article, and Appendix A (the zoning ordinance) which makes earth removal a prohibited use.
(Code 1967, § 8A-3; Ord. of 1-11-10)
Sec. 38-83. - Submissions required precedent to issuance.#
An applicant for a license under this chapter shall submit an application to the town council in a form adopted by the town clerk and provided by the town clerk.
Except as otherwise provided in this section, as a condition precedent to the acceptance of an application by the town council for earth removal, there shall be submitted to the town clerk: (1)
A plan prepared by a registered engineer in compliance with the provisions of this article and setting forth the existing contours of the tract of land, based upon classifications of preliminary samples of the material to be removed, including:
a.
The final contours of the tract of land upon completion of earth removal operations; and
b.
The type of ground cover to be planted or applied upon completion of earth removal operations to effectively control wind and water erosion;
provided, however, that if there is suitable fertile ground cover existing at the beginning of earth removal, enough of such ground cover shall be held in reserve and reapplied for a minimum thickness of three inches.
(2)
An opinion by a registered engineer that upon completion of earth removal operations all slopes on such tract as set forth in the plan referred to in subsection (1) of this section, shall remain at the natural angle of repose.
(3)
A bond in an amount sufficient to insure restoration of such tract of land and to insure compliance with the requirements of this section. The calculations for such bond shall be reviewed and approved by the town's engineer.
If the plan set forth in subsection (1) of this section is not complied with, the town may undertake and complete such plan, the owner of such tract of land shall reimburse the town for its necessary expenses in connection therewith, and the town shall have a lien on such tract of land for such expenses and may collect on the aforementioned bond.
The plan, required by subsection (1), shall be forwarded to the zoning enforcement officer and to the planning board for an advisory opinion. The advisory opinions shall accompany an application to the town council for a license.
(Code 1967, § 8A-4; Ord. of 1-11-10)
Sec. 38-84. - Reserved.#
Editor's note— An ordinance of January 11, 2010, repealed § 38-84, which pertained to the issuance for removal in certain zones and derived from the Code of 1967, § 8A-5.