CHAPTER 5
EXCAVATIONS
ARTICLE I. IN GENERAL
Sec. 5-1. 5-20. Reserved.
ARTICLE II. EARTH REMOVAL
Sec. 5-21. Applicability.
This article shall apply to the removal of material in connection with the future issuance of a building permit or where any amount of material in excess of that required solely for foundations and utility work, as defined on duly filed plans, will be removed concurrent with construction or at a later date from the town.
Sec. 5-22. Permit required.
No person, persons, partnerships or corporations (hereinafter called the applicant) shall remove, nor cause to be removed, nor permit the removal of any soil, loam, sand or gravel or aggregate from any land not in public use within the town, unless such applicant is the holder of a written special permit duly issued by the Board of Selectmen (hereinafter called "the authority") after a public hearing in accordance with the provisions of this article.
Sec. 5-23. Public hearing; plans required.
The authority's public hearing shall be held within sixty-five (65) days after the filing of one (1) application and two (2) sets of preliminary plans with the authority. Preliminary plans may be drawn by a non-registered engineer or land surveyor. If a special permit is granted by the authority the applicant must then provide the authority with definitive plans as per section 5-26, drawn by a registered land surveyor who is licensed to practice in Massachusetts, before the applicant can proceed with earth removal operations. Failure of the authority to take final action upon an application for a special permit within said ninety (90) days following the date of the public hearing shall be deemed a grant of the permit applied for.
Sec. 5-24. Withdrawal of Petition for permit.
Any petition for an earth materials removal special permit which has been transmitted to the authority may be withdrawn without prejudice by the petitioner prior to the publication of the notice of public hearing thereon, but thereafter may be withdrawn without prejudice only with the approval of the authority.
Sec. 5-25. Written recommendations of Boards, Agencies.
Any proposed earth materials removal operation shall require the written recommendations of town boards and/or agencies as specified in this article. Any such board or agency to which petitions are referred for review shall make such recommendations as they deem appropriate and shall send copies thereof to the authority and to the applicant; provided, however, that failure of any such board or agency to make recommendations within thirty-five (35) days of receipt by such board or agency of the petition shall be deemed lack of opposition thereto.
Sec. 5-26. Contents of plans.
(a) The content of the application and plan(s) shall include at least the following information:
The legal name and address of the applicant (owner) of the property involved.
Corporations or partnerships shall file with the authority a list of their officers and
designate their authority to sign legal documents.
All boundaries of property where material is to be removed with the boundaries of
removal areas shown in detail.
All buildings on and within one hundred (100) feet of said property including buildings
across private or public ways.
All internal roads and roads within one hundred (100) feet of said property, with their
elevations and established grades.
All waterways, brooks, swamps and other water bodies on or within one hundred (100)
feet of said property with their elevations, boundaries and presently defined courses.
The height of the water table at its highest elevation as determined by a minimum of two
observations spaced at least three (3) weeks apart during the months of April and
May. The observations shall be taken at locations as designated by the Selectmen or their agent(s).
Contour lines for the entire property at five-foot intervals, showing existing surface
elevations and proposed elevations for the excavated earth prior to re-loaming at the
completion of operations.
(8) A profile through the property showing the steepest finished slopes or banks.
(9) Any and all easements, existing and proposed, public or private.
(10) Any and all benchmarks on or within one hundred (100) feet of said property.
All land to be operated on, divided into square grids three hundred (300) feet on each
side unless the property involved is less than such grid area and in such case the grid
shall constitute the lesser area.
The above-mentioned plan shall be drawn by a registered land surveyor, licensed to
practice in Massachusetts, to a scale of one (1) inch equals forty (40) feet for areas up to
twenty (20) acres, and at a scale of one (1) inch equals eighty (80) feet for larger areas.
All profiles shall be drawn to a scale of one (1) inch equals four (4) feet. In addition, a
plan shall be provided which will show the relationship of said property to easily
identifiable landmarks. The authority, after study, may make such corrections and
revisions in conjunction with the applicant prior to the public hearing as it deems
advisable in the public interest.
(13) Estimated quantities of each substance to be excavated as calculated by a registered professional engineer.
(14) Estimate and analysis by a registered professional engineer of materials and plantings required to repair the site and the approximate cost of restoration for completion of site after removal of authorized materials.
(b) The plan(s) and application shall be available at the public hearing.
Sec. 5-27. Fees and other expenses.
The applicant shall pay a five hundred ($500.00) dollar filing fee and pay such expenses for consultants or other services as the authority may require in connection with the petition. This filing fee is to be used in connection with the special permit and its subsequent regulation, of which the unexpended amount is refundable if the petition is not granted.
Sec. 5-28. Considerations for approval.
The authority shall consider, among other things, the following: method of removal, days
and time of working, type of machinery to be used, limitation of area for excavation, clearance of brush, elimination of dust, soil, erosion, watershed areas, water table protection, drainage, placing and size of culverts, contour grading and conditioning of the land after operations are completed, routes of travel, planting of area to suitable cover, disposition of topsoil, and reestablishing of ground levels and grades. In case of soil or loam removal, the recommendations of the appropriate soil district supervisor and the county extension director or agent and their successors shall be considered except where the removal of the soil or loam is, in the opinion of the authority, necessarily incidental to and in connection with the construction of a road or other facility involving a permanent change in the use of the
land.
(b) In granting any special permit for the removal of material, the authority shall consider, in addition to the enforcing officer or Selectmen's agent(s) report in the case of renewal, a written report by the conservation commission whether the land is suitable for the removal of said material; and whether the operation will be injurious, noxious or offensive to a neighborhood for the reason of odor, fumes, dust, smoke, vibration or noise or other cause, and whether steps shall be taken so as not to hinder or endanger traffic on public or private ways. The authority may require, at its discretion, that police control of traffic be provided by the applicant at his expense.
Sec. 5-29. Security required.
(a) Certificate of insurance. The applicant shall provide the town counsel a certificate of insurance containing a public liability and property damage insurance with standard municipal "hold harmless" agreement. The amount of insurance is to be determined by the authority and said certificate, after approval by the town counsel, is to be filed with the Town Treasurer. Operations shall not begin until said insurance is approved.
(b) Bond or cash deposit.
(1) A bond or cash deposit shall be required for all -removal operations. The amount of the bond or cash -deposit shall be determined by estimating the approximate cost of final grading, loaming and planting of seed and trees for the total parcel of land involved.
(2) The bond or cash deposit shall be held by the town for twelve (12) months after the termination of the project or until all conditions as required by the authority have been completed to the satisfaction of the authority. The terms of bond or cash deposit shall allow the authority, if after twelve (12) months from the date of the termination of said special permit all conditions as required have not been completed, to use said monies to comply with the originally stated conditions.
Sec. 5-30. Decision to grant, extend, renew, etc., Permit.
Notice. Upon the granting of a special permit or any extension, modification or renewal thereof, the authority shall issue to the owners and to the applicant, if other than the owner, a copy of its decision, certified by the authority, containing the name and address of the owner, identifying the land affected, setting forth compliance with the requirements for the issuance of a special permit and certifying the copies of the decisions and all plans referred to in the decision have been filed with the Town Clerk.
Filing. Such special permit, or any extension, modification or renewal thereof, shall not take
effect until a copy of the decision has been filed with the Town Clerk.
Sec. 5-31. Permit nontransferable, nonassignable.
If such special permit is granted it shall be nontransferable and nonassignable.
Sec. 5-32. Term of Permit; renewal application.
A special permit for earth materials removal shall lapse within one (1) year after the granting date of the special permit (the granting date being included in the one-year period) . Renewal of a special permit shall be applied for at least ninety (90) days prior to the expiration of a special permit. Prior to the renewal of a special permit, to which mandatory specifications and restrictions shall be affixed and additional ones may be affixed, the authority will hold a public hearing. All procedures specified for the granting of an initial special permit shall apply to renewals.
Sec. 5-33. Reports of compliance or noncompliance Prerequisite to permit renewal hearing.
Before the renewal public hearing, the authority shall require the enforcing officer or the selectmen's agent(s) to submit in writing to the authority, within fifteen (15) days following receipt of an application for renewal, a statement of compliance on noncompliance with the restrictions and specifications as set forth in the special permit. If the statement reports noncompliance, the violations shall be indicated.
Sec. 5-34. Action subsequent to reports of noncompliance.
(a) When the statement of the enforcing officer or other selectmen's agent(s) indicates noncompliance with the restrictions and specifications as set forth in the special permit, the authority shall cause a certified letter, return receipt requested, to be written to the applicant. This letter shall:
(1) Indicate the existing violations;
(2) Advise the applicant that he shall have forty-five (45) days from receipt of the letter to comply with this article and with all specifications and restrictions set forth in -the special permit under -consideration for renewal; and
Advise him that the special permit will not be renewed unless he complies with the
restrictions and specifications. At the end of the forty-five day period allowed for
compliance and prior to the date of public hearing for renewal, the enforcing officer shall
be required to submit a follow-up report to the authority indicating whether all violations
have been corrected.
Failure of the applicant to correct said violations, shall prohibit the authority from granting any
extension, modification or renewal of said special permit, and further, shall prohibit the applicant from applying for any other special permit under the earth removal regulations until such time as all existing violations have been corrected to the satisfaction of the enforcing officer and his written report, indicating full compliance, has been filed with said authority.
Sec. 5-35. Specifications and restrictions on Permits, earth removal operations.
Upon the granting of any special permit, the following minimum specifications and
requirements shall be imposed and be -affixed to all special permits:
(1) Trees, which are to be removed, shall be cleared (not bulldozed).
All cleared trees, brush and stumps shall be chipped or removed from the site.
Wood chips may-be placed on. finished grade.
All loam and soil must be bulldozed into piles for future spreading. No loam-or soil
may be removed from the property unless otherwise provided for in this by-law.
Material other than loam or soil may be removed relative to contours as specified by
the authority and as shown on the original plan or amended plan submitted by the
applicant and approved by the authority. In material removal areas, ledge shall not
be left exposed above the approved grade and boulders shall be removed or buried at
least such that their tops are six (6) feet below the approved grade. In the event that
ledge is encountered prior to reaching the approved grade, a revision of the approved
grade plan must be submitted to the authority within thirty (30) days and no work
affecting the proposed revision shall be done until the authority gives approval.
After the material has been removed from the first grid (three hundred (300) feet by
three hundred (300) feet) and before proceeding to the next grid, the. excavation
shall be graded to the approved grade and all loam and soil shall then be respread
over the entire excavation except in such areas as are required for egress in
subsequent operations; and this shall be limited to thirty foot wide roadways and one
hundred foot wide turnarounds. All banks prior to and resulting from operations
shall be graded to a slope no steeper than two (2) feet horizontal to one (1) foot
vertical. After all operations are completed, areas used for egress shall be brought to
grade and finished in accordance with regulations pertaining to other areas as
specified in this article.
All timbers, temporary structures and the like shall be removed as the operation is
terminated.
Rye grass shall be seeded on this reloamed area at the rate of two hundred (200)
pounds per acre.
Fingerling fir or other approved trees shall he planted over the entire area twelve
(12) feet on centers.
Upon completion and approval by the authority of each three hundred (300) by three
hundred (300) foot grid, the "security" may be advanced to the next grid.
The authority shall reserve the right to limit the days and hours of operation and
shall require anti-dust treatment in those areas that, in the authority's opinion, require
such treatment.
Under no circumstances and at no time shall material be removed to an elevation
less than six (6) feet above the maximum water table elevation, such maximum water
table elevation being previously defined herein. Material shall also not be excavated
at any time to a level that will produce standing water, and drainage of surface water
shall be maintained.
Backfilling shall be accomplished to the completed -grades specified in the original
petition and shall be accomplished with suitable material as approved by the
authority, such backfilling to be covered by a minimum of six (6) inches of loam and
rehabilitated in a manner previously prescribed.
(13) Operations authorized herein shall not be conducted closer than one hundred (100)
feet from the boundary of all adjoining property without the written consent of the
owner of such property being on file with the authority. Excavations shall not be
closer than seventy-five (75) feet of the right-of-way line of any existing street, road
or highway, or one approved but not constructed,, or a private way except where such
excavation is necessary to establish the approved grades of a street.
At the applicant's expense, the authority shall require that property markers to be set to
determine the total extent of the owner's property to be involved in operations, and that
each grid (three hundred (300) feet by three hundred (300) feet of land, or less than a
grid in the case of a complete parcel, being operated shall be so marked. Furthermore,
the level of the water table as previously described herein shall be shown on said
parcels at a convenient location and in such a manner to allow for measurements by
the enforcing officer or other enforcing agent(s) as they believe are necessary to ensure
compliance with this article.
(15) All provisions of the Hatch Act and the Inland Wetlands Act shall be observed.
(b) The authority may also affix any additional specifications as are considered
necessary.
Sec. 5-36. Statutory authority; enforcement; Penalties.
(a) This article is adopted under General Laws, Chapter 40, Section 21, Clause 17, for prohibiting or regulating the removal of soil, loam, sand or gravel from land not in public use in the whole or in specified districts of the town.
(b) The superior court shall have jurisdiction in equity to compel compliance with any ordinance or by-law made hereunder.
(c) The penalty for violation of any ordinance or by-law made hereunder shall be-as follows: .
(1) For the first offense: Fifty ($50.00) Dollars;
(2) For the second offense: One Hundred ($100.00) Dollars; and
(3) For each subsequent offense: Two Hundred ($200.00) Dollars.
Sec. 5-37. Exceptions.
(a) This article shall not prohibit the removal of such material as may be excavated solely for the purpose of construction of foundations from buildings and other allowable structures for which plans showing the limits of subsurface construction and excavation have been filed and building permits have been issued or for the purpose of constructing ways, utilities, services or other engineering works in accordance with lines and grades shown on plans submitted to and approved by the authority and. other town officials and boards having jurisdiction.
This article shall not apply to the transference of material from one part of a duly registered lot, tract or parcel of land to another part of said lot,, tract or parcel of land.
(b) Any order or by-law prohibiting such removal hereunder shall not apply to any soil, loam, sand or gravel, or aggregate which is the subject of a permit or license issued under the authority of the town or by the appropriate licensing board of the town or by the board of appeals, or which is to be removed in compliance with the requirements of a subdivision plan approved by the town planning board.
Sec. 5-38. Conflicting provisions.
If any of the regulations in this article are in conflict with other regulations contained in the by-laws, the most stringent regulation shall apply.
Sec. 5-39 - 5-60. Reserved.
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