Earth Removal Zoning Bylaw
BYLAW: Earth Removal
MUNICIPALITY: Huntington, MA
DATE ADOPTED: May 5, 1999
TEXT OF THE BYLAW
I. Purpose - To protect the safety, health and well-being of the citizens of the Town of Huntington by regulating earth disturbance, either commercial, public or private.
II. Intent - To eliminate or minimize harmful soil erosion and sedimentation caused by activities and operations which result in land disturbance in the Town of Huntington. Cultivation of land for agricultural use is exempt from the provisions of this bylaw. Silviculture performed according to a plan approved under the Forest Cutting Practices Act (M.G.L. Ch.132, sec.40-46) is also exempt from these provisions.
Earth Removal Operations: The processing and/or removal of sand, gravel, clay, mineral deposits, quarried stone or sod, or any action that causes the alteration of earth, sand, rock, gravel, vegetation, or similar material, on land not covered under another permit, within the legal limits of the Town of Huntington. Earth Removal Operations shall include all land impacted by the operation (e.g.: pits, fill or storage piles, access ways and/or structures). Topsoil and/or loam are not to be included as acceptable commercial products for earth removal operations and must remain on site.
Erosion: The process by which the ground surface is worn by natural forces such as wind, water, ice, gravity, or by artificial means.
Fill: 1. Soil, earth, sand, gravel, rock, or other similar material which is deposited, placed, pushed, pulled, or transported, and includes the conditions that result from that act. Note: Construction waste such as asphalt or rubble is not permitted as fill for the purpose of this bylaw.
2. Any act by which soil, earth, sand, gravel, rock, or other similar material is deposited, placed, pushed, pulled, or transported.
Overburden : Compostable vegetation, leaf mold, humus, subsoil and any other organic material to a depth of eleven inches.
Reclamation: The process of grading and restoring soil and vegetation to a disturbed area.
Sediment: Organic material or minerals transported or deposited into any body of water, by the movement of wind, water, ice, gravity, or by artificial means.
Slope : An area that is more or less steep, as measured by vertical rise over a horizontal distance, expressed as a percentage or ratio. For example, a rise of ten feet over thirty horizontal feet is a slope of 33% or a ratio of one to three.
Temporary: A condition that exists for a period of six months or less shall be considered temporary unless otherwise specified by the SPGA. Any condition that persists for longer than six months shall be considered permanent and will be subject to all applicable restrictions and/or fees.
Test Dig: Any removal of earth with the intention of determining its composition and/or market value.
IV. Exceptions - Exceptions to this bylaw are as follows:
A. Agriculture or forestry (sec. II).
B. Excavation for Title V (septic system) compliance, building sites, sidewalks, driveways or roads if approved under Town of Huntington Subdivision Control Regulations.
C. Removal of less than 12 cubic yards of earth in a calendar year in the course of normal gardening or landscaping, not including test digs.
V. Test Digs - Dimensions of test digs shall be such that a fifty pound sample can be obtained at depths specified by an engineer. In no case shall the depth of the pit be more than twelve feet (Mass. Highway Dept. Standard Specifications 190.73). No test pit shall exceed 12 cubic yards of total earth disturbance.
Anyone proposing to do test dig(s) shall file a Test Dig Notification Form with the Planning Board, at least 14 days prior to the proposed dig. Notification Forms will be made available from the town's Administrative Assistant. The Notification Form shall contain the signature(s), name(s) and address(es) of the applicant(s), the legal owner(s) of the property, and corporate officers, if different. Any Notification Form shall be submitted to the Planning Board by certified mail or hand delivery. The Notification Form shall include a non-refundable filing fee of $50.00, payable to the Town of Huntington. A Notification Form shall not be considered complete unless the filing fee is included. Upon receipt of the Notification Form, the Planning Board shall arrange a pre-dig site inspection. The applicant will be notified in advance of the time of inspection and will be encouraged to participate in that inspection. Upon completion of the dig(s), the applicant shall notify the Planning Board, who shall schedule a post-dig inspection to determine site condition.
Following the completion of the post-dig inspection, the Planning Board shall provide the applicant, the Conservation Commission and the Zoning Board with a statement of their findings. Any further digging will require a new application process. The applicant shall have a period of six months to file a Special Permit Application, or to reclaim the site. In the event that the Special Permit Application is denied, the applicant shall reclaim the site within six months.
VI. Special Permit Application Requirements - In addition to the general conditions and procedures established in Section V.B. of the Zoning Bylaw for all special permits, the following requirements and procedures shall apply:
All earth removal operations, other than test digs, of 12 cubic yards or more per year, are permitted within the Town of Huntington, with a special permit issued by the Special Permit Granting Authority (SPGA). That permit shall be effective for a period of up to five years. All permits for earth removal operations shall be limited to five acres. The SPGA for earth removal shall be the Zoning Board. The applicant shall submit six complete sets of documents to the SPGA.
Applications for a special permit shall provide a description of the area and of the proposed activity including, at a minimum, the information specified below. Plans shall be drawn by a registered environmental engineer or other qualified professional and shall show compliance with accepted procedures and standards for erosion and sedimentation control. The applicant shall submit any additional information requested by the SPGA during review of the application. Additional information may include studies such as geological soundings to determine level and drainage patterns of underlying bedrock. The SPGA may reschedule or adjourn a public hearing in order to provide time for the applicant to submit such additional information. Credible anecdotal evidence of the presence of an
endangered or threatened species and/or archeologically or historically significant features may require study by appropriate consultants. The
results of these studies may be considered in the approval process and the SPGA may stipulate protective measures.
The application shall include the following:
A. Locus map including legend and north arrow
B. Plans of appropriate scale including:
1. Location of proposed work area in relation to parcel boundaries
2. Abutters and abutters to abutters on all sides
3. Existing streets, roads and ways, public and private
4. Main topographical features of the parcel and surrounding area
5. Existing vegetation characteristics within 300 feet of proposed work area
6. Wetland areas, including perennial and intermittent streams, rivers, lakes, swamps, vernal pools and ponds within 200 feet of proposed work area (any proposed excavation within wetland resource areas or buffer zones shall require submission of plans to the Conservation Commission according to provisions of MGL Ch.131,
Sec.40, The Wetlands Protection Act)
7. Delineation of the 100-year flood plain
C. Plans at a scale of one inch equals forty feet, showing existing conditions in the proposed work area, including:
1. Delineation of total land area to be disturbed
2. Contours showing existing elevations at two foot intervals
3. General vegetation characteristics within 300 feet of proposed work area
4. Delineation of wetland areas, including perennial and intermittent streams, rivers, lakes, swamps, vernal pools and ponds within 200 feet of proposed work area
5. Streets, roads and ways, public and private
6. Level of the estimated seasonal high water table using the definition set forth in 310 CMR 15.00, Title V of the State Sanitary Code. The elevation of the estimated seasonal high water table as established from test pits and the levels related to permanent bench mark monuments which shall be set on the property.
D. Plans at a scale of one inch equals forty feet, showing proposed work. These plans shall be shown on an overlay. The plans shall include:
1. Contours showing finished elevations at two foot intervals
2. Buildings, access ways and parking areas to be constructed
3. Temporary and permanent erosion and sediment control measures, including drainage systems
4. Temporary and permanent seeding and other vegetative controls
E. Plans at a scale of one inch equals forty feet, showing reclamation. These plans shall be shown on an overlay. The plans shall include:
1. Contours showing finished elevations at two foot intervals
2. Disposition of buildings, equipment or other fixtures and access ways
3. Erosion and sediment control measures, including drainage systems
4. Seeding and other vegetative controls
F. A performance bond shall be required in an amount equal to a documented, verifiable estimate of cost to reclaim work site according to the site plan submitted. The estimate shall include an adjustment for projected inflation or other predictable factors, as determined by the SPGA, over the term of the permit plus one year. Funds received by the SPGA for this purpose shall be managed as in VI.G.3. of this bylaw and shall be expended and/or returned to the applicant according to any applicable terms of this bylaw. Status of this bond shall be certified in writing to the SPGA annually.
G. As allowed under MGL Ch.44, sec.53G:
1. When reviewing an application for, or when conducting inspections in relation to a permit, the SPGA may determine that the assistance of outside consultants is warranted due to the size, scale or complexity of a proposed project, because of the project's potential impacts, or because the Town of Huntington lacks the necessary
expertise to perform the work related to the permit. The SPGA may require the applicants to pay a "project review fee" consisting of the reasonable costs incurred by the SPGA for the employment of outside consultants, engaged by the SPGA, to assist in the review of a proposed project.
2. In hiring outside consultants, the SPGA may engage engineers, planners, lawyers, urban designers or other appropriate professionals, who can assist the board in analyzing a project to ensure compliance with all relevant laws, ordinances/bylaws,
and regulations. Such assistance may include, but not be limited to, analyzing an application, monitoring or inspecting a project or site for compliance with the SPGA's decision or regulations, or inspecting a project during construction or implementation.
3. Funds, received by the SPGA pursuant to this section, shall be deposited with the municipal treasurer who shall establish a special account for this purpose. Expenditures from this special account may be made at the direction of the SPGA, without further appropriation. Expenditures from this special account shall be made
only for the services rendered in connection with a specific project or projects, for which a project review fee has been or will be collected from the applicant. Accrued interest may also be spent for this purpose. Failure of the applicant to pay a review fee shall be grounds for denial of the application or permit.
4. At the completion of the SPGA's review of a project, any excess amount in the account, including interest, attributable to a specific
project shall be repaid to the applicant or the applicant's successor in interest. A final report of said account shall be made available to the applicant or the applicant's successor in interest. For the
purpose of this regulation, any person or entity claiming to be an applicant's successor in interest shall provide the SPGA with documentation establishing such a succession in interest.
5. Any applicant may take an administrative appeal from the selection of an outside consultant to the Selectboard. Such an appeal must be made in writing and may be taken only within 20 days after the
SPGA has mailed or hand-delivered notice to the applicant of the selection. The grounds for such an appeal shall be limited to claims
that the consultant selected has a conflict of interest or does not possess the minimum, required qualifications. The minimum qualifications shall consist of either an educational degree in, or related to, the field at issue or three or more years of practice in the field at issue or a related field. The required time limit for action upon
an application by the SPGA shall be extended by the duration of the administrative appeal. In the event that no decision is made by the Selectboard within one month following the filing of the appeal, the selection made by the SPGA shall stand. (Zoning Board of Appeals Operational Standards)
H. All documents shall be reviewed by the SPGA, followed by an on-site inspection prior to initial public hearing. The applicant and/or property owner shall be notified and their presence, at the inspection, encouraged.
VII. Required Recommendations - No special permit shall be issued without a recommendation, no more than thirty days following the public hearing, from the Planning Board and the Conservation Commission. The SPGA may require recommendations from other authorities they deem appropriate. Failure of these authorities to submit recommendations within thirty (30) days shall constitute no objection to the terms of the application.
VIII. Minimum Standards - The following minimum operation standards, plus any other(s) that the SPGA deems necessary, shall be attached to the Special Permit Application and shall become requirements for the continuation of any earth removal operation within the Town of Huntington:
A. No earth removal operation shall be closer than 250 feet to any public road, street or way, nor any closer than 250 feet to the nearest property line before, during or after excavation, measured in a straight, level line from the thoroughfare or property line to the site of the earth removal. This buffer shall be left in its natural state except for a reasonable access way. Access ways shall be constructed in such a way as to not disrupt drainage or cause unreasonable environmental damage. Exceptions may be made in the case of reclamation, where the minimum final setback, after grading, may be as little as 100 feet from streets, roads, ways or property lines.
B. No equipment for earth removal and/or processing shall be closer than 250 feet to any public road, street or way or to any abutting property line.
C. Before granting approval, the SPGA shall find that the proposed operation will be in harmony with the purpose of this bylaw and will not be injurious or dangerous to public health; will not produce noise, dust or other effects observable from adjacent property in amounts sufficient to be a nuisance to normal day-to-day use of the
adjacent property. Proposed work will not result in changes which are disadvantageous to the appropriate future use of the land on which the operation is conducted. Work shall not have an adverse affect on the water supply, health, or safety of persons living in the neighborhood or on the useful social purposes of abutting land.
D. No applications shall be approved on parcels with pre-existing violations or that are under litigation.
E. No permit for earth removal shall be issued if such removal will result in traffic hazards in residential areas or congestion or physical damage to streets, roads or ways.
F. The SPGA may require a treed "buffer" or fencing, where applicable.
G. Overburden shall be stripped to a depth of eleven inches, with topsoil and subsoil stored separately on site, and seeded to prevent erosion for use in the restoration of the site. A minimum of three feet of natural till shall be left undisturbed above bedrock.
H. All areas of excavation and access to earth removal operations shall be clearly marked with legally posted no trespassing signs. Areas of steep slope or grade, as judged by the SPGA, shall additionally be fenced and clearly marked "DANGER- KEEP OUT".
I. No excavation shall be larger than five (5) acres for earth removal, storage and/or processing at one time.
J. If, in the course of operation, evidence of an endangered or threatened species, its habitat or a historically or archeologically significant feature is discovered, operation in that area shall cease until a determination can be made on how to proceed.
K. The SPGA shall determine hours of operation based on location and neighborhood characteristics. Hours of operation shall not exceed 7 a.m. to 6 p.m. Monday through Friday and 7 a.m. to 2 p.m. on Saturday.
L. Parking shall be restricted to areas designated in sec. VI.D.2 of this bylaw or as approved.
M. Unless the alteration of drainage patterns is specifically approved, the land shall be left so that natural drainage shall leave the property at its original points during all stages of operation; and so that changes in peak flow are minimized. There shall be no resultant standing water unless the formation of a pond is permitted in writing by the Planning Board, the Conservation Commission and the SPGA.
N. The use of explosives shall not be permitted without at least 14 days notice. A notice of intent shall be publicly posted and abutters and the SPGA shall be notified by certified mail at least 14 days prior to proposed use. Said use shall be done in accordance with regulations for storage or handling of explosives as published by the Commonwealth of Massachusetts (MGL Ch. 148, sec. 9).
IX. RECLAMATION - Immediately following the expiration or withdrawal of a permit, or upon voluntary cessation of operations, or on completion of removal on a substantial area, that entire area shall be reclaimed according to the following
conditions. Reclamation must be consistent with existing municipal plans at the time that the permit is granted. All reasonable efforts should be made to be consistent with municipal plans that are in existence at the time of reclamation regardless of whether they existed at the time the permit was granted.
A. Written notice may be filed with the SPGA, six months prior to cessation of operation, for monitoring of reclamation, to initiate bond return. Bond shall not be returned until certified reclamation has been completed and one full growing season or one year has passed, demonstrating satisfactory results, as judged by the SPGA.
B. Reclamation must be carried out in a manner that is consistent with plans approved by the SPGA in VI.E. The following conditions shall also be applied:
1. Site shall be graded so that no slope exceeds one foot vertical rise in two horizontal feet (one to three preferred) or as approved by the SPGA in VI.E. Grading shall be carried out in a manner that eliminates threats to public safety and leaves the site with drainage patterns substantially unchanged.
2. All boulders larger than one-half cubic yard shall be removed or buried.
3. A minimum of three feet of undisturbed natural till shall be retained between level of reclamation and bedrock/ledge.
4. Overburden shall be spread with subsoil a minimum of seven inches deep and topsoil a minimum of four inches deep.
5. The area shall be seeded with a grass mix suitable to prevent erosion (hydro- seeding is preferred), such as:
a. Switch grass and redtop grass mixture at a rate of twenty pounds switch and two pounds of redtop per acre or
b. Tall fescue and perennial rye grass mixture at a rate of forty pounds of tall fescue to fifteen pounds perennial rye per acre or
c. A "Soil Conservation Mix" blended to control soil erosion spread at 100 lbs. per acre or as recommended or
d. Other erosion control measures as approved by the SPGA
6. Stumpage and "slash" shall be removed or converted to wood chip mulch (limited slash piles for wildlife habitat may be acceptable as approved by the SPGA).
7. Additional plantings of shrubbery and/or trees may be required by the SPGA either to control erosion or to screen the site from roads, streets, ways or private property.
8. All access ways, buildings and/or fixtures as per VI.E.2. shall be removed unless otherwise exempted by the SPGA.
9. In the event that an earth removal operation is abandoned, after a period of six months, the Town of Huntington shall be
empowered to use the performance bond to reclaim the site. If the site presents a public danger, the reclamation may be expedited at the discretion of the SPGA.
X. EXISTING OPERATIONS - Operations under permit as of the adoption of this bylaw, shall have the right to continue under the terms of that permit until its expiration. The permit for any legally existing gravel operation may be renewed for up to 5 years, using the plans submitted for the active permit, provided that the application for renewal remains in the footprint of the work area originally agreed upon and the rate of removal or traffic flow will not be substantially increased. The amount of the performance bond may be adjusted to reflect the current cost of reclamation and the SPGA may change previously attached conditions to reflect changes to the neighborhood character and infrastructure.
Existing operations which have never been required to hold a permit will be exempt from the terms of this bylaw so long as they continue to be operated at a volume consistent with their operational history. Functional cessation of operation for a period of twenty-four months or longer, unless consistent with operational history, or a measurable sustained increase in volume of operation shall invalidate the exemption and the operation shall be subject to the permitting process outlined herein.
A. Any earth removal permit shall be in force for a period of no more than five years and shall apply to only the parcel (five acre maximum) identified in the application site plan. Any extensions beyond five years or expansion beyond the SPGA-approved site shall require the permittee to submit a new application. Renewals of permits for any reason will be subject to any new standards that have become applicable during the term of the original permit.
B. An operator may file an application for renewal with the SPGA six months prior to the expiration of an active permit to allow for identification and remediation of noncompliance.
C. Noncompliance with any portion of the expiring permit, or of any other permits granted by the Town of Huntington, violations of any state or federal laws, or of town bylaws or regulations shall be grounds for denying any further permit(s).
XII: ENFORCEMENT/ NONCOMPLIANCE - Any earth removal operation found to be in violation of this bylaw shall be subject to a fine not to exceed $300.00 per violation per day and suspension of
permit until proof of compliance is submitted. In the case of persistent noncompliance, the permit may be revoked and immediate restoration of the site may be required. The town may restore the site, using the owner's performance bond if the demands are not met within a reasonable time as judged by the SPGA. Violations may be determined in the course of normal inspections carried out by the SPGA or as a result of a complaint filed in writing with the SPGA and found to be factual by the Zoning Enforcement Officer.
XIII. SEVERANCE - If any part of this bylaw is found not to be legal, the rest shall remain intact.