Excavation Regulations

EXCAVATION REGULATIONS

TOWN OF SANDWICH, NEW HAMPSHIRE

 

SEPTEMBER 1, 2011

Amended January 3, 2013

 


INDEX

 

SECTION 1.   INTRODUCTION

  1.1     Authority

  1.2     Title

  1.3     Excavation Operations Before August 24, 1979

  1.4     Abandoned Excavations

  1.5     References

 

SECTION 2.   GENERAL PROCEDURE

  2.1     Information Required

  2.2     Site Plat Requirements

  2.3     Excavation Plan Required

  2.4     Reclamation Plan Required

  2.5     Performance Security Required

  2.6     Pit Agreement

  2.7     Application Exclusions

  2.8     Excavation Prohibitions

  2.9     Submission of Application

  2.10   Board Action

 

SECTION 3.   RENEWAL AMENDMENT AND APPEAL

  3.1     Renewal

  3.2     Amendment

  3.3     Appeal

 

SECTION 4.   ENFORCEMENT

  4.1     Inspections

  4.2     Action

  4.3     Authority

  4.4     Penalities

 

SECTION 5.   FEES

  5.1     Application Fee

  5.2     Permit Fee

  5.3     Renewal Fee

  5.4     Amendment Fee

  5.5     Annual Inspection Fee

  5.6     Compliance Inspection Fee

 

SECTION 6.   DEFINITONS

  6.1     Owner

  6.2     Applicant

  6.3     Abutter

 

 

SECTION 7.   SEVERABILITY

 

SECTION 8.   HISTORY

  8.1     First Excavation Regulation Approved December 2, 1981

  8.2     November 1, 1989 Amended

 

 

SECTION 1.   INTRODUCTION

 

1.1       AUTHORITY.  NH RSA 155-E as amended provides for the regulation of excavations of earth by local governments.  The law sets standards regarding location, development, and reclamation of excavation sites through a permit system administered by the Town.  In Sandwich, the Planning Board is the Regulator of the excavation law.  The Board has the authority to adopt any reasonable regulations to carry out the intent of the law. 

 

1.2       TITLE.  These regulations shall be known and cited as the “EXCAVATION REGULATIONS FOR SANDWICH, N.H.”

 

1.3       EXCAVATION OPERATIONS BEFORE AUGUST 24, 1979.  Owners who operated commercial excavation sites before August 24, 1979 and have continued to do so, are not required to apply for an Excavation Permit, but will be required to make application for any expansion for their present operations if such expansion will have a substantially different and adverse impact on the neighborhood.  The reclamation plan submitted with the application must comply with the requirements of RSA 155-E:5 and 155-E:5-a and be kept current with any changes in excavation operations.  The plan must include all disturbed areas from the time the first operation occurred.  The owners shall be required in their future operations to comply with the standards set forth in these regulations and shall be subject to annual and compliance inspections.

 

The owners or operators of any existing excavation site for which no permit has been obtained shall file a report with the regulator with one year after receiving written notice of this requirement from the regulator.  This report shall be in compliance with RSA 155-E:2I(d).

 

1.4       ABANDONED EXCAVATIONS.  The Regulator may order the owner of any land upon which an abandoned excavation (abandoned after August  24, 1979) is located to file a reclamation plan in compliance with Section 2.4 if the Regulator finds that the public health, safety, or welfare requires such reclamation.  Such an order shall only be made following a public hearing for which notice has been given in accordance with RSA 155-E:7.

 

 

 

 

 

1.5       REFERENCES.

            1.  RSA  155-E:1-11  Local Regulations Excavations

            2.  RSA  677:4-15 for appeal rights

            3.  RSA 259:125 for definition of a right of way

            4.  RSA 672:3 for definition of an abutter

            5.  “Standard Specifications for roads and bridges” published by the NH
                 Department of Transportation, Section 106.2 for procedures for material
                 excavation and 106 for pit agreements.

 

 

SECTION 2.   GENERAL PROCEDURE

 

2.1       INFORMATION REQUIRED.  Whenever an excavation is proposed for the removal of earth, the owner(s) or his agent shall apply in writing to the Board, on a form provided by the Board, to obtain approval of the excavation.  The application requires the address of the owner(s) of the site, their phone number, and the tax map reference, the names and addresses of all abutters and their tax map references, six copies of a plat of the excavation site complying with the requirements given below (Section 2.2), an excavation plan, and a reclamation plan.  Agent for the owner(s) shall present written authority for their appointment.  An application fee is required when the application if filed. 

 

2.2       SITE PLAT REQUIREMENTS.  A site plat is required showing boundaries of the property and the location of the proposed excavation. 

            a.  The sheet must not exceed twenty-four (24) by thirty-six (36) inches.  The scale must not exceed 100 feet per inch.  It must show the name(s) and address(es) of the owner(s), date, scale, north direction, and the name and seal of the a licensed land surveyor.  It must also include a locus indicator showing the relation of the site to established roads and other features.  An approval block for use by the Chairman of the Board should be provided. 

            b.  The topography of the site before excavation, at the completion of each phase, if applicable, and at the final completion of the excavation prior to reclamation, must be shown by contours with an interval not exceeding five (5) feet.  The plat must delineate the location of any steep slopes (over 15%), streams, ponds, wetlands, and flood prone areas.

            c.  The plat shall show setback lines (Section 2.8) and their relation to the proposed excavation.  Existing roads, driveways, shorelines, wetlands, drainage patterns, and other off-site geographic features within 200 feet of the property must be shown.

            d.  The plat shall show the elevation of seasonal high groundwater within or next to the proposed excavation.  The plat shall also show the location of aquifers as identified by the United States Geological Survey or other sources.

            e.  The plat shall show the location of all proposed access/exit roads connecting to public or private roads as well as internal roads to the excavation.

            f.  The plat shall show the names of all abutters and the location of their properties together with tax map references.

            g.  The plat must provide sufficient data to determine the location, bearing and length of every lot boundary, and the location of on-site markers, to permit site inspection by the Board.

            h.  The plat shall show location of all easements on or below the ground.

            i.  The plat shall show stone walls, ledge outcroppings, wells, existing buildings, septic systems, utilities, and the like. 

            j.  The plat shall show any and all accessory facilities – activities.

            k.  The plat must include fencing, buffers, and other visual barriers, including height and materials.

            l.  The plat shall identify all measures to control erosion, sedimentation, water pollution, air pollution, and safety hazard.

 

2.3       EXCAVATION PLAN REQUIRED.  An excavation plan is required describing:  plans for topsoil removal, storage and revegetation during the excavation; description for removal of timber in accordance with NH statutes and regulations relating to forest practice; plans for the construction of topographical buffers and planting of vegetative barriers between the site and surrounding area; photographs of the site showing features to be disturbed; also to be included is a description of the operation such as duration and phasing out time, material volume and types to be removed.  The level of water table at relevant locations at the site must be determined.  The Board may require a pit schedule of operation and truck routes and times of trucking.

 

2.4       RECLAMATION PLAN REQUIRED.  A reclamation plan is required including:  a site plan drawn at the same scale and using the same base survey information as that used in the preparation of the excavation site plan; description of the phasing of site reclamation, including completion dates and soil conditioning, seeding and mulching specifications with listing of plant materials to be used by names, quantities, and sizes; a statement that the reclamation when completed shall conform at least to the legal minimum requirements of RSA 155-E:5 and that the reclaimed landscape shall blend with the surrounding natural features, and that condition of the reclaimed site will not preclude its future use in a manner consistent with the Town Zoning.  The reclamation shall show final surface drainage patterns.

 

2.5       PERFORMANCE SECURITY REQUIRED.  A performance security shall be required in order to ensure the accomplishment of the reclamation plan.  The size of the security shall be determined by the Board after consultation with a competent authority.  The Board may require, at the excavator’s expense, a review, by a registered professional, engineer of the submitted plans and cost estimate.  The security shall be approved by the Board after review by Board legal counsel.  The security shall not be released until the Board is satisfied that the reclamation plan has been accomplished.

 

2.6       PIT AGREEMENT.  A pit agreement may be required if the excavation is to involve construction or modification of Class I, II, IV, and V highways; such excavations to begin only after the Board’s acceptance, and, in the case of Class IV and V highways, of an agreement such as that in Section 106 of “Standard Specifications for Highways and Bridges”.

2.7       APPLICATION EXCLUSIONS.  The following operations are excluded from the permit requirements.

            a.  Excavations exclusively incidental to the onsite construction or alteration of a building, structure, parking, lot or driveway.

            b.  Excavations that are incidental to agriculture, sylviculture, or landscaping and which do not involve removal of earth or gravel from the site.

            c.  Excavation from land adjoining a manufacturing and processing plant which uses earth from such land, and which was in operation as of 8/24/79, or excavation from adjoining land in common ownership with the plant. 

            d.  Excavations from a granite quarry for the purpose of producing dimension stone.

            e.  Excavations for the construction and maintenance of Class I, II, III, IV, and V highways as regulated by RSA 155-E:2 IV.

 

2.8       EXCAVATIONS PROHIBITIONS.  The following proposals are prohibited. 

            a.  Excavations with two hundred feet (200) feet of a highway centerline, unless for the construction or maintenance of the highway. 

            b.  Excavations with one hundred (100) feet of the boundary of a disapproving abutter or within ten (10) feet of an approving abutter.  Excavations within two hundred (200) feet of any dwelling.

            c.  Excavations not permitted by zoning or other applicable ordinances.

            d.  When the issuance of a permit would be unduly hazardous or injurious to the public.

            e.  Where existing visual barriers in the areas specified in RSA 155-E:3 would be removed except to provide access to the excavation.

            f.  Where the excavation would damage an aquifer listed by the United States Geological Survey.

            g.  When excavation is planned beneath or adjacent to inland surface waters in such manner that permits are required from the Department of Environmental Services or other state or federal agencies with jurisdiction over the premises.  The Board may approve the application when all necessary permits have been obtained.

            h.  Where the project cannot comply with the reclamation provisions of RSA 155-E:5 and 155-E:5-a or the operational standards of RSA 155-E:4-a.

 

2.9       SUBMISSION OF APPLICATION.  When the application has been completed together with application fee and all supporting documents, including the application the performance bond, it is to be submitted in duplicate to the Board.  One copy of the application will be forwarded to the Conservation Commission.  For consideration, the application must be submitted to the Board twenty-four (24) days before the date of the next scheduled meeting of the Board.  The Board may refuse to consider an application if it does not satisfy the requirements of these regulations. 

 

 

 

 

 

SECTION 3.   RENEWAL, AMENDMENT, AND APPEAL

 

3.1       RENEWAL.  The owner may apply for renewal of an excavation permit, and the Board will follow the same procedure required for a new excavation permit except that the renewal application need present only those items of information that have changed or may have impact on the previous submission.  A renewal fee will be required.

 

3.2       AMENDMENT.  If adherence to the original excavation permit conditions or plans cannot be maintained, or when the scope of the project is proposed to be altered so as to affect either the size or location of the excavation, the owner shall make application for a permit amendment, and the Board shall proceed for renewal.  An amendment fee will be required. 

 

3.3       APPEAL.  Any person affected by the permit decision has the right of appeal and may exercise it by applying, with ten (10) days of the decision, to the Board for a rehearing.  If the rehearing is denied, or if after a rehearing the Board’s decision remains unchanged, appeal may be made further to the Superior Court under the same procedures as apply from the a decision of the Zoning Board of Adjustment (RSA 677:4-15).

 

 

SECTION 4.   ENFORCEMENT

 

4.1       INSPECTIONS.  The Board will make annual site inspections to verify compliance with the conditions of the permit, unless more frequent inspections are deemed necessary.  The Board, after notification to the owner, may visit any land on which there is reason to believe that an excavation is being conducted, or that a noncompliance of permit condition exists.  An inspection fee will be required. 

 

4.2       ACTION.  The Board may suspend or revoke a permit if non-compliance exists.  Initially, the Board shall issue, in writing, a warning stating the violation.  If the owner has not taken satisfactory corrective action within ten (10) days, he shall be called to the next regular meeting of the Board to show cause why his permit should not be suspended or revoked.  Any person affected by non-compliance rulings may appeal as above to Superior Court.

 

4.3       AUTHORITY.  Such orders as the Board or Superior Court may give shall be enforced by the Planning Board and Police of the Town of Sandwich.

 

4.4       PENALTIES.  Whoever violates any provisions of this regulation may be subject to penalty as per RSA 155-E:10.

 

 

SECTION 5.   FEES

 

5.1       APPLICATION FEE.  A fee of seventy-five ($75) dollars must accompany the application when submitted.

5.2       PERMIT FEE.  A fee of twenty-five ($25) dollars will be required when the permit is issued and the site posted.

 

5.3       RENEWAL FEE.  A fee of twenty-five ($25) dollars will be required to accompany an application for renewal.

 

5.4       AMENDMENT FEE.  A fee of twenty-five ($25) dollars will be required to accompany an application for amendment.

 

5.5       ANNUAL INSPECTION FEE.  A fee of twenty-five ($25) dollars will be required when the annual inspection by the Board occurs.

 

5.6       COMPLIANCE INSPECTION FEE.  A fee of twenty-five ($25) dollars will be required when any inspection occurs as a result of changes in plans or non compliance with Excavation Plan.

 

 

SECTION 6.   DEFINITIONS

 

6.1       OWNER.  An individual(s) or corporation who claims ownership of the land containing the excavation site, by virtue of a properly executed deed recorded at the Carroll County Registry of Deeds.

 

6.2       APPLICANT.  Owner of the excavation site or the Owner’s designee.

 

6.3       ABUTTER.      Any property owner whose land adjoins, or is directly across a street or stream from the property containing the excavation site.

 

6.4       PERFORMANCE SECURITY.  The term “Performance Security” shall mean any of the following:

I.  A performance bond issued by an insurance or surety company admitted in the State of New Hampshire (“bond”); or

II. An irrevocable letter of credit with an automatic call provision issued by the state or national bank with banking offices located within the State of New Hampshire (“LOC”); or

III. Cash in United States currency held in escrow by a financial institution approved by the Planning Board (“cash bond”); and

provided, further when a Performance Security is required pursuant to this Excavation Regulation, the Performance Security must be in such form, substance, and content as is expressly approved by the Planning Board and its attorney. [Added 1-3-2013]

 

SECTION 7.   SEVERABILITY

 

If any section, provision, portion, clause, or phrase of these regulations shall be held to be invalid or unconstitutional by any court or competent authority, such holding shall not affect, impair, or invalidate any other section, clause, provision, portion, or phrase of these regulations.

 

SECTION 8.   HISTORY

 

8.1       The first Excavation Regulation was adopted by the Sandwich Planning Board on December 2, 1981 after a duly noticed public hearing held on October 7, 1981.  The Excavation Regulations were responsive to public law passed in the 1979 legislative session as RSA 155-E.  The Sandwich Planning Board was designated as the Regulators of the law for the Town of Sandwich.

 

8.2       November 1, 1989.  Amended.

            September 1, 2011.  Amended.