SOIL REMOVAL ORDINANCE
Section I. General Provisions
Section II. Power and Authority
Section III Filing Procedures
Section IV Permit Requirements
Section V Violations
Section VI. Exceptions
CHAPTER 19 - SOIL REMOVAL ORDINANCE
A. Statement
Except as hereinafter provided, removal of earth from any land within the City of Methuen is prohibited, except as allowed by the issuance of a permit, after a public hearing by the Soil Removal Board, hereinafter referred to as the "Board", who shall issue such permit in accordance with the provisions of this ordinance.
B. Definitions
For the purpose of this ordinance, "soil" shall include top soil, loam, gravel, sand, clay, rock, sod, ground cover, and other allied materials; "owner" shall refer to the person(s), firm(s), or organization(s) holding title to the property in question.
C. Request for Determination of Applicability
An owner may request the Board to determine the applicability of this ordinance regarding soil removal activity.
D. Topsoil
Except when, in the opinion of the Board, removal of topsoil from property is necessary, topsoil will be retained on the property and re-spread by the property owner.
E. Violation
For violation of Section I and Section V of this ordinance the penalty shall be Fifty Dollars ($50.00) for the first offense, and Two Hundred dollars ($200.00) for each subsequent offense. Under this ordinance, each individual truckload removed will be considered a violation.
F. Severability
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent project and such holding shall not affect the validity of the remaining portion hereof.
G. Existing Permits
All current soil removal operations begun under valid permits, shall be governed by previously existing rules and codes, except that Section IV., Paragraph B shall become effective immediately to the extent practical.
H. Combined Hearings
Earth removal hearings may be combined at the option of the Board, with hearings under the Wetlands Protection Act, if such is required for the proposed work and/or with any other hearing required for said work, the Board, sitting jointly with the other agency concerned, provided that the hearing notice, as published by law, clearly states that a combined hearing is to be held, and separate decisions are issued according to the rules and regulations for each agency.
Section II. Power and Authority
A. Jurisdiction
Exclusive jurisdiction to issue permits shall be vested in a board appointed by the Mayor and subject to confirmation by Council. Said board shall consist of five individuals who shall be appointed for three year terms, so nearly arranged that as nearly one-third of their number shall be appointed annually. Said board shall act and be known as the Soil Removal Board and shall have the same powers as the Soil Conservation Board established on March 11th, 1969 under Chapter 40, Section 21, Massachusetts General Laws.
The Mayor shall annually designate the chairman thereof.
B. Inspector
The Mayor shall be responsible for, and may designate an Inspector who may be the Building Commissioner to assist the Soil Removal Board in implementing this ordinance.
C. On-Site Inspections
Members of the Board and the Inspector shall have the right to enter for inspection purposes premises for which Soil Removal permits have been issued, applications received, soil removal operations are taking place or have taken place in the past.
(As amended by Ord, #176, Eff. Feb. 20th, 1985)
Section III. Filing Procedures
A. To be considered for each permit, the owner must present three (3) copies to the Board of the following items:(1) A plan showing ultimate use of the land conforming to existing zoning ordinances.
(2) This plan must show the area and proof of ownership; the proposed work area; source and type of cover for restoration; typical cross sections of cuts; fills and slopes; location of existing or proposed structures, proposed excavation or fill elevations and drainage facilities.
(3) A topographic map in five (5) foot elevation increments indicating existing contours and proposed final contours.
(4) A study and report indicating the effect of the proposed soil removal on water tables and the effect of the resulting changes in water run-off on the height of all encompassed, bordering and downstream surface water. Effect on both the lowest and highest water levels occurring during the year shall be considered by this study.
(5) A complete list of the names and addresses of all current abutters to the property where such removal is proposed.
(6) The names of all contractors authorized by the owner to remove materials from the property and a copy of the working agreement indicating the owner as the party responsible for restoration and maintaining the safety requirements in Section IV-B.
(7) A filing fee of Twenty-Five Dollars ($25.00) is required for a soil removal permit. The fee shall be waived when the applicant is the City of Methuen.
B. No permit shall be issued until the above requirements of Section III, Paragraph A, 1 through 7 are met. In the event that the above information is shown to be inaccurate or incomplete, the application shall be suspended until all provisions have been met.
C. A public hearing shall be held within twenty-one days of receipt of the application on which contains all necessary data required as per this Section III, Paragraph A, 1 through 7.
D. At least ten days prior to the hearing, notice must be sent to all abutters and the property owner by the Board. This notice must appear in a local daily newspaper of wide circulation in Methuen. The expense of the advertisement is to be borne by the owner.
E. For purposes of determining abutters under this ordinance, all contiguous land registered under names of individuals, corporations or trusts having common interest shall be considered as a single parcel. All persons owning land having at least one common boundary (including roads, bridges or waterways) with such single parcel shall be considered as abutters for the purposes of this ordinance.
F. After the public hearing, the Board must within twenty-one days approve or deny the permit.
G. Should a permit be denied, the Board will supply good and sufficient reason for such a denial. If the reason for denial is removed, the owner may re-apply without prejudice for another permit.
H. Each permit shall be issued subject to all applicable requirements under Section IV and to all specific conditions or restrictions the Board may deem necessary. The Board may at any time review existing permits and add or remove restrictions according to changed conditions by agreement with the permittee.
I. No permit will be issued if any requirement under Section IV cannot be met or if the Board finds that the proposed work will affect the public health, safety or welfare of the inhabitants of the City of Methuen.
J. Each permit shall contain an expiration date but may be extended by written request to the Board, provided no violations exist. Permit shall expire one year from the date of issue or when the work is completed, whichever comes first. Permits are automatically invalidated by expiration of the bond. Expiration of the permit shall not affect the obligation of the holder thereof to comply with all conditions and requirements of the permit nor release him or the surety on his bond from the obligations thereof.
Section IV. Permit Requirements
A. The following Operational Standards are required:
(1) During the life of the permit the following buffer areas are to be left in their natural state. All areas within:
(a) 100 feet of a public way and/or wetlands.
(b) At a distance suitable to obtain a finished slope of not greater than two to one to the lowest ground elevation.
(c) All areas within a distance determined by the Board of any occupied dwelling.Natural vegetation shall be left and maintained in the buffer area(s) as determined by the Board, for screening and noise reduction purposes.
(2) Work hours shall be limited to 7:00 A.M. to 6:00 P.M. Monday through Friday unless otherwise specified. Operation of trucks (in and out) and all machinery including, but not limited to, dozers, shovels, loaders, chain saws, shredders, screens, etc., shall be limited to these hours. All loaded vehicles shall be suitably covered to prevent dust and contents from spilling and blowing from the vehicles.
(3) The working area shall not exceed five (5) acres at any given time, exception shall apply where the operation is further regulated by the provisions of Public Law 89-577 regulated by the U.S. Department of Interior, Mining Enforcement and Safety Administration Office.
(4) All topsoil shall be stripped from the work area and a sufficient amount stockpiled for use in restoring the area after the soil removal operations have ceased.(5) During operations, when excavation is located closer than two hundred (200) feet from a residential area or one hundred (100) feet from a public way and where the excavation will have depth of more than fifteen (15) feet with a slope in excess of 1 to 1, a fence of at least four (4) feet high shall be erected to access to this area. To insure the public safety, the Board may require the posting of signs reading "DANGER", "KEEP OUT" and/or "NO TRESPASSING - POLICE TAKE NOTICE".
(6) No area shall be excavated so as to cause the accumulation of free standing water except as part of the final plan approved by the Community Development Board and the Conservation Commission. Permanent drainage shall be provided as needed in accordance with good conservation practices. In the event that a serious ponding of water results form soil removal operation, the owner will consult with the Board for proper drainage or retention of the water.
(7) Trees and other ground cover should be removed before deeper excavations are begun. Care should be taken to remove any overhanging lip and maintain the slope at 1 to 1, during excavation.
(8) Frequent inspections and continual maintenance of erosion and sedimentation controls should be performed. In the event the Board finds serious erosion taking place on any soil removal site, it shall have the power to order grading, seeding, mulching and planting. All necessary care should be taken to halt erosion. Such erosion prevention will be at the expense of the owner.
B. Any site where work is being done in accordance with this ordinance shall display a sign of one (1) square feet bearing the words "Methuen Soil Removal Board Permit Number ..." assigned to the project.
C.. The following Restorational Standards are required:
A. All final bankings shall be graded to a slope no steeper than two (2) feet horizontal to one (1) foot vertical.
B. In soil removal areas, ledge shall not be left exposed above the approved grade and boulders and all cleared trees, stumps, and brush shall be removed, shedded or completely buried and covered with a minimum of two (2) feet of soil.
C. No trees, stumps, or other material subject to decay shall be buried at an elevation below the maximum water table.
D. Following excavation and as soon as possible thereafter, ground levels and grades shall be established as shown on the completed topographical plan. Retained topsoil shall be spread to a minimum depth of four (4) inches. The entire area should be seeded, mulched, and cared for until a firm ground cover is established.
E. The owner shall be responsible for repair of any erosion damage and must make repairs whenever needed even after expiration of his permit and until the release of his bond.F. A bond shall be required when the extent of the work is significant in the opinion of the Board. A bond shall be posted with the City Clerk and a covenant approved by the City Solicitor, with a penal sum and surety satisfactory to the said Board, conditional upon the faithful performance by the applicant of the conditions of the permit. Such bond shall not be less than One Thousand Dollars ($1,000.00) per acre of working area; (i.e., any area in condition other than its natural state or reconditioned state in accordance with Sections III and IV of this ordinance).
G. When it has been determined by the Board that all general requirements under Section IV (B) have been met as well as any specific conditions which may have been imposed by the Board and when the permittee states in writing that the project is in every way complete, the Board will sign a conditional release. One (1) year from the date of conditional release, if no damage or deterioration to the finished project has developed, the Board shall sign a final release. If slumping, gullying, or other form of erosion appears at any time within the year following the conditional release, or if the ground cover fails to become established in any area, the permittee is responsible for repairs. Following repairs, the Board will sign another conditional release. Final release will be signed when no further damage appears one (1) year after the most recent conditional release and only then will the bond be released.
H. The owner must provide liability insurance protecting himself and all others in the event of an accident and the City of Methuen must be listed as co-insured and a certificate of said insurance must be provided to the Board before work can begin. Any person(s) or corporation(s) working under contractual agreements with the owner may also provide liability insurance.
A. Upon verbal or written notification of violation of any conditions of the permit or any section of this ordinance to any member of the Board or to the Inspector, such claim of violation shall be immediately investigated by a member of the Board or the Inspector. If, in the opinion of the member or Inspector, this or any other violation has been committed, said member or Inspector shall be obligated and empowered to issue a Request for Compliance to the violation.
B. The Board may, upon finding a violation and if the violation continues after the issuance of a Request for Compliance, issue a Cease and Desist to order immediate termination of the soil removal activity, and a public hearing will be held.
C. The Board shall, after due hearing and proof of violation of any term of the permit or this ordinance, revoke the permit. If said violation involves removal of material from the premises, all material shall be returned to proper grade or the penalties defined in Section I of this ordinance shall be levied.
D. If said infraction involves violation of the natural buffer areas, material and loam shall be replaced to the natural buffer areas, and the trees destroyed shall be replaced with suitable trees of the size, type and spacing approved by the Board.
E. If all corrections cannot or are not made within a reasonable time stipulated by the Board, the bond will be forfeited and the penal sum provided therein paid to the City of Methuen to be used to restore the property as required by this ordinance.
F. Any person who purchases, inherits, or otherwise acquires real estate upon which work has been done in violation of any permit issued hereunder shall forthwith comply with any requirement or restore such real estate to its condition prior to any such violation.
A. The provisions of this ordinance do not apply to:
(1) Any soil removal done in compliance with the requirements of a subdivision plan that has been approved by the Community Development Board.
(2) The removal of earth in the course of excavation, grading or landscaping incidental to the construction of a building for which a building permit has been issued or for the construction of a driveway or parking lot.
(3) Any permitted uses required for plowing and planting or any soil conservation practices of normal farm, garden, orchard, nurseries or lawn making operations. The disposal or sale of earth from farm property shall require a permit.
(4) Any excavation which comes under the term of public use, such as cemeteries, road constructions, and maintenance of water, sewer, septic systems, gas, electric or telephone facilities.
B. At any time that the Board determines that the soil removal is not only for purposes A., 1 through 4 above, the Board shall require that an application for a permit be filed under this ordinance before any further removal of earth is allowed.
C. When said permit involves proposed soil removal area of less than one (1) acre and also the removal of less than five hundred (500) cubic yards of soil, the Board may waive the requirements of Section III, A, 3 and 4, and Section IV, C.
D. In the event of serious erosion and/or danger to public safety, any such exempt operation may be declared no longer exempt by the Board and shall be required to obtain a permit before further work is done and/or to correct any existing violations under this ordinance.
(1973 Ord., added by Ord. 49, July, 1976)