Earth Excavation Regulations

TOWN OF WINCHESTER

REGULATIONS GOVERNING EARTH EXCAVATIONS

SECTION I:  Authority

Chapter 155-E of the New Hampshire Revised Statutes Annotated stipulates that, with some exceptions, all earth excavation in the state are subject to regulation from the local municipality in which the operation occurs. Pursuant to the authority vested in the Planning Board of Winchester by the voters of Winchester and RSA 155-E, the Planning Board adopts the following regulations to govern the excavation of earth materials in the Town of Winchester.

SECTION II:  Purpose & Scope

The goals of this regulation are: to provide for reasonable opportunities for excavation; to minimize safety hazards which can be created by open excavations; to ensure that the public health and welfare will be safeguarded; to protect natural resources and the environment; and to maintain the aesthetic features of the town. For the purpose of achieving these goals, no earth materials in the town shall be removed except in conformance with these regulations.

SECTION III:  Definitions

Abutter: Any person whose property adjoins or is directly across the street, stream, small river or railroad bed from the land under consideration by the local land use board; and any affected communities and regional planning commissions in the event of the proposal having regional impact. In the case of a mobile home park the corporation or owner will be notified as well as any direct abutting mobile homes. Any other form of collective ownership such as a condominium the term means the officers of the collective or association.

Applicant: The owner of the property to be excavated or the owner’s agent, so designated in writing as part of the excavation application. 

Board: the Planning Board of Winchester

Contiguous: Land whose perimeter can be circumscribed without interruption in common ownership except for roads or other easements, in a single town. 

Dimension Stone: Rock that is cut, shaped or selected for use in blocks, slabs, sheets or other construction units of specified shapes or sizes and is used for external or interior parts of buildings, foundations, curbing, paving, flagging, bridges, revetments, or for other architectural or engineering purposes. Dimension stone includes quarry blocks from which sections of dimension stone are to be produced. Dimension stone does not include earth as defined below. 

Earth: Sand, gravel, rock, soil or construction aggregate produced by quarrying, crushing or any other mining activity or such other naturally occurring unconsolidated materials that normally mask the bedrock. 

Excavation: A land area, which is used, or has been used, for the commercial taking of earth, including all slopes.

Excavation area: The area within an excavation site where excavation has occurred or is eligible to occur under the provisions of RSA 155-E.

Excavation Site: Any area of contiguous land in common ownership upon which excavation takes place.

Existing excavation: Any excavation which lawfully existed as of August 24, 1979, from which earth material of sufficient weight or volume to be commercially useful has been removed during the two year period before August 24, 1979. 

Expansion: Excavation beyond the limits of the town and/or the area which in 1979 had been contiguous to and in common ownership with the excavation and has been appraised and inventoried for tax purposes as part of the same tract.

Express standards: Those operational and reclamation standards as outlined in this regulation.

Minimum Standards: The operational and reclamation standards outlined in this regulation are considered to be the minimum standards applied to any excavation that requires a permit.

Reclamation: The restoring of an excavation site to a standard at least equal to those outlined in section X of the regulations.

Stationary manufacturing and/or processing plants: Facilities which are permanently placed on a site for the purposes of sorting, washing, screening, crushing, classifying, drying, or processing excavated earth materials. 

SECTION IV:  Projects requiring a permit

A. Those that commenced operations since August 24, 1979 without first obtaining a permit, unless specifically exempted by section V.

B. Any excavation proposing to begin operation after the effective date of these regulations.

C. Those that have lawfully operated prior to August 24, 1979 and wish to expand the excavation area beyond the limits of the town in which it is situated and the area which on August 24, 1979 and at all times subsequent thereto has been contiguous to and in common ownership with the excavation site of that date and has been appraised and inventoried for property tax purposes as part of the same tract as the excavation site as of that date.

D. Those excavations from an area which on August 4, 1989 was contiguous to or was contiguous land in common ownership with stationary manufacturing and processing plants which were in operation as of August 24, 1979 and wish to expand to any non contiguous lands.

SECTION V: Projects exempt from a permit

A. The following projects do not require a permit, but are nevertheless subject to sections IX, X, and XI of these regulations. In the event of a question regarding compliance, the board may require the owner/operator to come before the board and submit such information as may be necessary to demonstrate compliance with said standards. 

• Excavations which lawfully existed as of August 24, 1979 from which earth material of sufficient weight or volume to be commercially useful has been removed during the two year period before August 24, 1979, subject to the following;

a. Such an excavation shall be exempt from local zoning or other ordinances regulating the location of the excavation site, provided that at the     time operation began it was in compliance with any local ordinances that may have been in effect.

b. The owner or operator of such an excavation area shall have filed an excavation report per RSA155-E:I(d) with the board no later than      

    August 4, 1991 and before Aug. 4, 1989. Any existing excavation that failed to file this report shall no longer be considered to be   

    grandfathered and must obtain a permit from the board before continuing excavation of the site.

B. The following projects do not require a permit, but are nevertheless subject to Sections IX, X, and XI of these regulations. Compliance with these standards is mandatory in order to retain the non-permit status. Loss of such non permit status can occur only after the board has given written notice that the excavation is not in compliance and the owner has failed to bring it into compliance within 30 days of receipt of such notice, as per RSA 155-E:2, III(a).

1.  Excavations from a site which on August 4, 1989 was contiguous to or was contiguous land in common ownership with stationary    

     manufacturing and processing plants which were in operation as of Aug 24, 1979 and which use earth obtained from such excavation site.

2.  Excavations from a site which on August 4, 1989 was contiguous to, or contiguous land in common ownership with stationary manufacturing 

    and processing plants for which local or state permits have been granted since August 24, 1979 and before August 4, 1989, which used earth 

     obtained from such site. The operation and reclamation of such excavations shall continue to be regulated by such permits and any renewals or      extensions thereof by the permitting authority or authorities. 

3.  An excavation performed exclusively for the lawful construction, reconstruction, or maintenance of a Class I, II, III, IV, or V highway. A copy 

     of the pit agreement executed shall be filed with the board; in addition, the provisions of section VII of this regulation are to be complied with. 

     Exemptions from local zoning or other regulations are provided for in RSA 155E:II, IV(c).

C. The following projects are exempt from a permit and are not subject to regulations by the board:

1.  Excavation that is exclusively incidental to the lawful construction or alteration of a  building or structure, a parking lot or way including a   

     driveway on a portion of the premises where removal occurs. This excavation cannot be started, however, until any required state and local  

     permits have been issued.

2.  Excavation that is incidental to agricultural or silvicultrual activities, normal landscaping or minor topographical adjustment. In the event of 

     questions, the board shall determine what is incidental.

3.  Excavation from a granite quarry for the purpose of producing dimension stone, if such excavation requires a permit under RSA12-E (Mining   

     & Reclamation).

4.  A person owning land abutting a site which was taken by eminent domain or by other governmental taking upon which construction is taking 

     place may stockpile earth taken from the construction site and my remove the earth at a later date after written notification to the board.

SECTION VI: Abandoned Excavations

The following provisions do not apply to excavations connected with stationary manufacturing and processing plants:

A.  Any excavation for which the affected area has not been brought into compliance with the reclamation standards of this regulation shall be considered abandoned if:

1.   No earth material of sufficient weight or volume to be commercially useful has been removed from that site during any two year period either 

      before, on, or after August 4, 1989.  The owner or operator may extend this time period if, prior to the end of the time period, the board   

      approves a reclamation timetable, and a bond or other surety is posted in a form and amount prescribed by the board sufficient to cover the   

      costs of reclaiming the entire site.

2.   The excavation is in use, but either has not, as of August 4, 1992, been brought into compliance with the incremental reclamation standards of 

      the regulation, or a bond has not been posted and a reclamation timetable has not been approved by the board.

3.   The owner or operator has neither secured a permit pursuant to this regulation nor filed an excavation report pursuant to section V,A,1(b).

B. In the event the board determines that any abandoned excavation presents a hazard to the public health, safety or welfare, the owner may be required, following a public hearing, to comply with the timetable and bonding requirements outlined above, or to complete reclamation within a reasonable period of time. Should reclamation not be completed, the board may request the town to authorize reclamation at the town’s expense. The town’s costs shall constitute an assessment against the owner, and shall create a lien against the property. Such assessment and lien may be enforced and collected in the same manner as provided for real estate taxes. 

C. The provisions of paragraph B above also apply to any excavation which ceased commercially useful operation prior to August 24, 1977 if the board determines in writing that a danger to public health or safety exists.

SECTION VII: Prohibited Projects:

A.  All excavations will have a setback of 50 feet from a boundary.

B. Where existing visual barriers would be removed, except to provide access to the excavation.

C. Where the issuance of the permit would be unduly hazardous or injurious to the public welfare. The board shall give particular consideration to such factors as noise, traffic, dust, fumes or danger from operation. 

D. Where the excavation would substantially damage a know aquifer, as designated by the United States Geological Survey.

E. When the excavation cannot receive necessary land use permits from state or federal agencies. 

F. Where the excavation is not permitted by zoning or other applicable ordinance, provided however, that reasonable opportunities for excavation exist in town, as described in RSA 155E:4, III.

G. Where the project cannot comply with the requirements of sections IX,X, and XI of these regulations.

SECTION VIII: Criteria for non conforming expansions

Expansion of existing excavations located in an area in which excavations are no longer permitted by local zoning in effect on August 4, 1989 may be restricted or modified with conditions by the board if after notice to the owner and a public hearing, the board finds the expansion will have a substantially different and adverse impact on the neighborhood. Any potential impacts will be determined by the board during a duly noticed public hearing. Impacts will vary depending upon the particular neighborhood, nevertheless, the following criteria will be taken into consideration:

A. The excavation will not cause a diminution in area property values or unreasonably change the character of the neighborhood.

B. The excavation will not unreasonably accelerate the deterioration of highways or create safety hazards in the use thereof. 

C. The excavation will not create any nuisance or create health or safety hazards. 

SECTION IX: Minimum and Express Operational Standards

For those excavations not requiring a permit, the following express standards apply. For those excavations requiring a permit, these standards are considered to be the minimum; more stringent standards such as are consistent with the purpose of these regulations may be applied, as deemed necessary by the board.

A. No excavation shall be permitted closer than 150ft. to an existing dwelling or to a site for which a building permit has been issued at the time the excavation permit is granted. 

B. No excavation shall be permitted below road level within 50 feet of the right of way of any public highway as defined in RSA 229:1 unless such excavation is for the purpose of said highway. 

C Vegetation shall be maintained or provided within the peripheral areas of paragraph A & B of this section. 

D. No fuels, lubricants or other toxic or polluting chemicals shall be stored on site unless in compliance with state laws or rules pertaining to the storage of such materials. 

E. Where temporary slopes will exceed a 1:1 grade, a fence or other suitable barricade shall be erected to warn of danger and/or to limit access to the site.

F. Appropriate drainage shall be provided to prevent the accumulation of freestanding water for prolonged periods. Excavation practices which result in continued siltation of surface waters or any degradation of water quality of any public or private water supplies are prohibited. 

G. No excavation shall be permitted within 75 feet of any great pond, navigable river, or any other standing body of water 10 acres or more in area, or within 25 feet  of any other stream, river or brook which normally flows throughout the year, or any naturally occurring standing body of water less than 10 acres, prime wetland as designated in accordance with RSA482-A:15-I, or any other wetland greater than five acres in area as defined by the Wetlands board.

SECTION X: Minimum and Express Site Reclamation Standards

For excavations not requiring a permit, the following express standards apply. For excavations requiring a permit, these standards are considered to be the minimum; more stringent standards such as are consistent with the purpose of these regulations may be applied, as deemed necessary by the board. Within twelve months following the expiration date of a permit issued under these regulations, or the completion of any excavation, whichever occurs first, the excavation area shall be reclaimed in accordance with the following standards: 

A. Areas visible from a public way, from which trees have been removed, shall be replanted with tree seedlings, set out in accordance with acceptable horticulture practices. 

B. Except for exposed rock ledge, all disturbed areas shall be spread with a minimum of four inches of top soil or any other soil capable of maintaining vegetation, and shall be planted with seedlings or grass suitable to prevent erosion.

C. All earth and vegetation debris resulting from excavation shall be removed or otherwise lawfully disposed of. 

D. All slopes, except for exposed ledge, shall be graded to natural repose for the type of soil of which they are composed so as to control erosion or at a ration of horizontal to vertical proposed by the owner and approved by the board. Changes of slope shall not be abrupt, but shall blend with the surrounding terrain. 

E. Any standing bodies of water created by the excavation that are judged to constitute a hazard to health and safety shall be eliminated. 

F. The topography of the land shall be left so that water draining from the site leaves the property at the original, natural drainage points and in the natural portions of flow.

G. For excavation projects requiring a permit from the NHDES, the provisions of RSA 485-A:17 shall supercede this regulation. Copies of all such permits shall be filed with the board.

SECTION XI: Incremental Reclamation

Except for excavation sites of operating stationary manufacturing plants, any excavated area of five contiguous acres or more which is depleted of commercial earth materials, excluding bedrock, or any excavation from which earth materials of sufficient weight or volume to be commercially useful have not been removed for a two year period, shall be reclaimed in accordance with section X of these regulations within 12 months following such depletion or non use, regardless of whether other excavation is occurring on adjacent land in contiguous ownership. A reclamation plan, including a reclamation timetable for the depleted areas within the reclamation site, shall be submitted to the board for approval.

SECTION XII: Performance Guarantee

Prior to the granting of any permit, or to the removal of topsoil or other overburden material from a new area within an existing excavation site, the applicant shall submit to the board a bond, to guarantee reclamation of the area and compliance with the permit. The board may require an independent qualified professional to determine the amount of surety necessary, and the cost of such to be borne by the applicant. Off site improvements for potential damage of town roads or facilities caused by transportation of earth materials shall be discussed at this stage. The surety may be in the form of a performance bond, cash or mortgages or property escrow, irrevocable letter of credit, or any other form approved by the board. The surety may be phased to coincide with the phasing of work, in an amount sufficient to guarantee reclamation of the applicable section, to be released as sections are completed. Prior to a new section being opened, new securities shall be posted. The surety shall not be released until the board is satisfied that all conditions of the site reclamation plan have been complied with. 

SECTION XIII: Exceptions

Due to the diverse nature of excavation operations which vary in scale and scope, and due to the varying conditions of the land to be excavated, the board may upon application and following a duly noticed hearing, grant any exception in writing to the standards contained in sections IX,X,XI, and XII for good cause shown. The written decision shall state specifically what requirements are being waived and include any reasonable alternatives.

SECTION XIV: Application for Excavation

The applicant for an excavation permit shall submit to the board a completed application form, an excavation and a reclamation plan, any other submission documents as requested, and the filing fee. At least three copies of all plans shall be filed with the board prior to a scheduled board meeting and one copy shall be sent to the Conservation Commission. The plans shall be at a scale of 1”=100’.

A. The excavation plan shall address specific actions to be taken on the site relative to fuel and chemical handling and storage, dust control, traffic, noise and abatement, and comprehensive site safety of unauthorized persons. The plan shall show or be accompanied by the following items, unless waived by the board:

1. Name & address of the owner, excavator and all abutters.

2. Name, address and signatures of the persons preparing the plan; bar scale and north arrow.

3. Zoning district boundaries of the proposed area and within 200 feet of the project.

4. A sketch and description of the location and and boundaries of the proposed and any existing excavations, the area in square feet and affected     towns.

5. The location of existing buildings, structures, septic systems and wells within 200 feet of the boundary.

6. The total lot size, size of any previously disturbed area in square yards and acres and the area to be disturbed in square yards and acres.

7. The lot lines, public streets, driveways, intersections, rights of way, and all easements within 200 feet. 

 8. The topography at contour intervals of five feet or less.

9. All surface drainage patterns including wetlands and standing water.

10. A sketch and description of existing and proposed access roads, including width and surface materials.

11. The breath, depth, and slope of the proposed and existing excavation and include the estimated duration of the project.

12. The elevation of the highest annual ground water table within or next to the proposed excavation.

13. Test pits that extend to either the seasonal high water table, ledge or a minimum of six feet below the maximum proposed excavation depth, including location and soils data; boring logs may be submitted separately. 

14. Proposed fencing, buffers or other visual barriers, including height and materials and setbacks from the boundaries.

15. All measures to control erosion, sedimentation, water pollution, air pollution, and hazards to human safety.

16. Copies of all necessary state & federal permits.

17. Rate of removal and totalage for all materials.

B. Reclamation plan

The reclamation plan shall address the effects of the proposed excavation on soil, surface and groundwater, vegetation, overburden, topography and fill material, and should address future land use consistent with the Master Plan. The plan shall show or be accompanied by the following items, unless waived by the board: 

1. Name, address, and signature of the person preparing the plan, including the date, bar scale and north arrow.

2. All boundaries of the area proposed for reclamation and the land within 200 feet of the boundary of the site.

3. Final topography of the area proposed for reclamation, at contour intervals of five feet or less.

4. Final surface drainage pattern, including the location and physical characteristics of all artificial and/or modified drainage facilities.

5. Timetable as to fully depleted sites within the excavation area and a schedule of final reclamation activities including seeding mixtures, cover 

    vegetation, fertilizer types and application rates.

C Other information

The board reserves the right, per RSA 155E:3,VII to request any other information it deems necessary to make an informed decision, or to have the plans reviewed by an outside agency. According to the authority vested in the board by RSA 676:4,I(g), any reasonable expenses incurred for such information or reviews shall be charged to the applicant. Failure to pay such costs constitutes valid grounds for the board to deny the application. 

SECTION XV: Application Procedure

Prior to the board rendering a decision for an excavation permit, a public hearing shall be held, with due notification of all abutters and the public. The procedure for holding these public hearings is as follows:

A. Filing of the application

1.  Applications for excavations permits shall be submitted to the board, via the Land Use Office or appropriate town employee at least 21 days 

     prior to the anticipated hearing.

2.   Upon filing of application, the applicant gives permission for a site inspection to be done, and if conducted by an engineer, the applicant shall 

      pay for the inspection.

B. Board action on application

1.  The application will be will be reviewed with the applicant at a properly notice meeting and will be accepted by the board only if it is found to 

     meet all requirements for a completed application.

2.   Providing that the application is complete, the board shall vote to accept the application, after which time the board has 30 days to schedule a 

      public hearing. Should the application not be accepted as complete, another meeting must be scheduled for submission. As properly noticed, 

      the hearing may immediately follow the application acceptance. 

3.   Within 20 days of the close of the hearing on the application, or any continuation thereof, the board shall make a decision. Notice of this 

      decision shall be recorded in the minutes of the meeting and placed on file in the town offices within five business days.

4.   The applicant will be sent a written copy of the decision within 5 business days. 

C. Notices required for public hearing

1.   All abutters will be notified by certified mail, not less than 10 days prior to the meeting at which the application will be submitted for 

      acceptance. Names and address of abutters must be taken from the town records not more than five days before filing the application.

2.   Public notice will appear in a newspaper of general circulation and in at least three public places not less than 14 days prior to the meeting.

3.   The notice must include the location and general description of the proposal, as well as the date, time and place of the meeting.

D. Fees

1.  A filing fee of $150.00 shall be paid upon submission of an application for permit to defray the costs of posting notice for the public hearing. 

     Failure to pay such cost shall constitute grounds for the board to not accept the application.

2.  A permit fee of $50.00 shall be paid upon issuance of a permit, to defray the costs of permit compliance.

3.  Additional reasonable fees shall be charged should the board require the advice of an engineer or other expert to review plans or inspect the  

     site to determine permit compliance.

SECTION XVI: Administration and Enforcement

A. Permits: Permits shall be issued only to the owner or his agent and shall not be transferable without prior written consent of the board. A copy of the permit shall be prominently displayed at the site or the principal access to the site. A permit may be valid for five years and the expiration date shall be specified. A permit is automatically withdrawn if no substantial work is done on the site for a period of two years from the date of issuance of the permit. Failure to file for a permit shall be considered a violation and operators who fail to file will be issued a cease and desist order. The board may include in the permit any such reasonable conditions as are consistent with the purpose of these regulations. 

B. Amendments and Renewals: Permit holders wishing to renew or amend a permit by altering the size or location of the excavation, the rate of removal or the plan for reclamation shall follow the same procedures as those required for an excavation permit. 

C. Inspections: The board or its designated agent shall make periodic, at a minimum yearly, inspections of all excavation sites to determine if the operations are in conformance with these regulations and the approved plans. The owner shall bear such costs as necessary.

D. Suspensions and Revocations: The board may suspend or revoke a permit if the board determines that any provision of the permit has been violated, a material misstatement made in the application upon which a permit was granted, or any unsafe or hazardous conditions are determined by a site inspection to exist. Such suspension or revocation shall be subject to a motion for rehearing thereon and appeal in accordance with these regulations. 

E. Appeals: Any person affected by the board’s decision to approve or disapprove an application or an amendment thereto or any suspension or revocation of a permit, may appeal to the board for a rehearing on such decision or any matter determined thereby. The motion for rehearing shall be filed within ten days of such decision and shall fully specify every ground upon which it is alleged that the decision or order complained of is unlawful or unreasonable. The board shall either grant or deny the request for rehearing within ten days, and if the request is granted, a rehearing shall be rescheduled within 30 days. Any person affected by the boards decision on a motion for rehearing may appeal in accordance with RSA 677:4.

F. Penalties: Fines, penalties and remedies for violations of this regulation shall be the same as for violations of RSA 676:15 and RSA 676:17. Whoever violates any provision of this regulations, a permit or a valid order issued hereunder shall be guilty of a misdemeanor.

SECTION XVII: Separability

The invalidity of any provision, sentence, paragraph, etc. of this regulation shall not affect the validity of any other provision, sentence, paragraph, etc.

SECTION XVIII: Effective date

These regulations shall take effect upon adoption by the board as amended.

Adopted 1993

Amended November 2, 2009.