Ordinance #4 Mineral Removal


Ordinance No.4
Effective: February 2, 1979
An ordinance to regulate and control excavation, removal, deposit and relocation of sand, gravel, topsoil, clay, marl, other minerals, and fill materials in Berrien Township by requiring a permit for certain excavation, removal, deposit and relocation operations and enumerating requirements pursuant to such permits.
141.001         Purpose.
Sec. I. The purpose of this ordinance is described as follows:
A.         To protect public health, safety and welfare.
B.         To insure that nuisances and hazards are not created and that property will be left in usable condition when operations are completed.
C.        To recognize the consideration of adverse effect upon property values as a criteria in limiting permits under this ordinance.
(Ord. No.4, Eff. Feb. 2, 1979)
141.002           Applicability.
Sec. II.
A.         This ordinance shall apply to all operations in Berrien Township involving excavation, removal, deposit, or relocation of sand, gravel, topsoil, clay, marl, other minerals and similar materials, herein referred to as earth solids, and fill materials which involve an amount of such earth solids in excess of four hundred (400) cubic yards, per yr. except as provided in Section II B, hereof.
B.         This ordinance shall not apply to excavation, removal, deposit, and reloca­tion of earth solids involving:
1.          Operations necessary to construction of a building when a building permit has been properly issued and is in effect for such project and when the amount of earth solids to be excavated, removed, deposited or relocated will not exceed four thousand (4,000) cubic yards;
2.          Uses accessory or incidental to another lawful use, including parking, landscaping, gardening, and similar uses, which do not exceed an amount of earth solids to be excavated, removed, deposited, or relo­cated in excess of eight hundred (800) cubic yards;
3.          Uses accessory or incidental to farming operations; and
4.          Residential construction and improvements involving a plat duly approved and recorded pursuant to the Plat Act, being Act 172 of Michigan Public Acts of 1929, or the Subdivision Control Act, being Act 288 of Michigan Public Acts of 1967.
5.          Operations necessary by a governmental agency in the construction of highways, sewers, drains, flood control projects.
(Ord. No.4, Eff. Feb. 2, 1979)
141.003           Permit and application requirements.
Sec. III.
A.         A permit duly issued by the Berrien Township Board shall be required of any person, individual, firm, corporation, association, or partnership to exca­vate, remove, deposit, or relocate earth solids in Berrien Township, except as provided in Section II B [141.002] herein.
B.         Any Applicant for a permit required under this ordinance must file a written application with the Berrien Township Board. The application shall be addressed to the Berrien Township Board and shall set forth the following information:
1.         Name and address of applicant.
2.          A description of land involved within a legal description of property.
3.          Estimated or planned amount of earth solids to be excavated, removed, deposited, or relocated;
4.          Kind of earth solid to be excavated, removed, deposited, relocated, or used for fill material;
5.          Measures to be taken to control noise, vibration, dust, and traffic;
6.          A description of any traffic control devices, public facilities or public services which could be required by the proposed operations;
7.         Any necessary measures the applicant proposes to take to ensure public safety and the lateral support of surrounding land and struc­tures;
8.         A time span required for the proposed operations; and
9.         A statement explaining stabilization controls to be employed to leave the land in reasonably level and usable condition when the proposed operation ceases.
(Ord. No.4, Eff. Feb. 2, 1979)
141.004           Application fee and processing; permit condition and requirements.
Sec. IV.
A.         Each application for a permit pursuant to Section III [141.003], A and B of this ordinance shall be accompanied by a fee as specified in the Berrien Township fee schedule. In the event that an application is denied, said fee shall be refunded to the applicant.
B.         Upon receipt of an application and fee, the application shall be transmitted forthwith by the Township clerk to the Township planning commission for its consideration and any recommendations. No action shall be taken relative to the application by the Township board until the clerk has received a report from the planning commission, or until the expiration of forty (40) days from the filing date of the application, whichever first occurs. The Township board and the planning commission may make suggestions regarding proposed amendments of the application by the applicant, and no application which has been so amended need be referred to the planning commission a second time as a result of such amendment.
C.         No permit shall be issued unless the Township board, after considering the application and any recommendations of the planning commission, and after giving the applicant an opportunity to be heard, either in person or through counsel, shall find:
1.          That the proposed operations are not likely to cause any dangerous, unsanitary, or unhealthful conditions;
2.          That they will impose no undue financial burden upon the Township; and
3.          That such operations will not be conducted in violation of any state law or Township ordinance;
4.          That there is adequate assurance that the land will be left in such condition as to protect it from erosion; and the Township Board may ask the U.S. Soil Conservation Service for an opinion in this matter; and
5.          That after completion of the operations the land will be left in a reasonable level and usable condition.
D.         As a condition of granting the permit, the Township board shall require the applicant to post a surety bond, or other adequate assurances, in such reasonable amount and upon such reasonable terms as the Township board may determine, taking into consideration the scale of the operation, costs of rehabilitating the land, possible court costs, and other reasonable expenses for the purpose of assuring the public that the terms and conditions of the permit as issued shall be complied with. The form of such bond shall be approved by the Township attorney. The bond for each annual permit shall expire two (2) years after expiration of said permit.
E.          When the Township board reaches a decision on an application, the applicant shall be so advised in writing by the Township clerk within a period not to exceed ninety (90) days from the date the application is filed with the Township board.
F.          Each permit shall apply only to the land described in the application.
G.A permit may be revoked if the permittee operates in any manner inconsis­tent with the statements in the final application.
H.If a permit is revoked, the permittee shall be given written notice, mailed or personally served, at least five (5) days prior to the date of the meeting at which revocation is considered, and shall be given the opportunity to be heard, either in person or through counsel. The notice shall specify the date, time, and place of the meeting at which revocation will be considered, and shall inform the permittee of the reason(s) that revocation is under consid­eration and of his right to be heard. Revocation of a permit shall not exempt the permittee from responsibility for any violations of this ordinance as herein provided in Section VI [141.006].
I.The Township supervisor, or his agent, may temporarily, without prior notice suspend any permit issued under provisions of this ordinance if it appears evident, in his opinion, that a violation has occurred.
J.            Permits issued under provisions of this ordinance shall be effective for a period not to exceed one (1) year. In the event the permittee desires to continue the operation described in Section II A. [141.002] above a new application shall be made.
(Ord. No.4, Eff. Feb. 2, 1979)
141.005           General requirements.
Sec. V.
A.         Distance of excavation from county or state road right-of-way.
1.         Excavation shall not be permitted within fifty (50) feet of either a county or state road right-of-way.
2.          Excavation beyond fifty (50) feet of a county or state road right-of-way must maintain a grade no steeper than a two-to-one slope. If at any time the slope becomes steeper than one-to-one, excavation must be stopped and a filling and/or holding operation shall be executed.
3.          If terrain is not of highway or road level, but in the nature of a mound, a high bank, or a hill, excavation will be permitted to the highway (road) right-of-way and to that road's highest level at that point.
4.          Any further excavation or removal of dirt below the road's highest level must then be made fifty (50) feet from road right-of-way and a slope no steeper than one-to-one must be maintained, as provided in Section V A 2 herein.
5.          If excavation as in Section V A 4, herein takes place and terrain remaining on road right-of-way is higher than road level, an agreement
must be reached between the Road Commission and persons doing the excavation to remove such terrain from the road right-of-way to the Road Commission's specifications.
B.     Distance of excavation from property lines.
1.          Excavation shall not be permitted closer than fifteen (15) feet of any property line, and slope shall be no steeper than one-to-one.
2.          Excavation from inclined terrain may be leveled fifteen (15) feet from property lines with all property owners' agreement.
3.          Excavation from level or declining terrain shall not be permitted within fifteen (15) feet of property lines, and then only at a slope of not less than two-to-one.
4.          When excavation takes place on both sides of a property line, excava­tion or removal of earth solids from the property line may be permitted provided that both property owners agree, and a slope no steeper than two-to-one must be maintained.
C.     Hazards.
1.          Excavation taking place on private property within fifty (50) feet from property line or within one hundred (100) feet from any road right-of­way with a slope steeper than a one-to-one and deeper than five (5) feet is considered hazardous and will not be left unmanned over night, unless one of the following is present at the point of danger.
a.          Two strands of plain wire
b.          Snow fence
                 c.     Temporary board fence
d. Saw horses placed at close intervals
2.          Any excavation within fifty (50) feet of public property shall not be left overnight without adequate blinker lights mounted on saw horses or similar support.
3.          Unpaved roads used to transport any materials subject of this ordi­nance which are located within five hundred (500) feet of a private residence, business, or public recreation area shall be adequately treated for dust control by the permittee.
D. Condition of property areas after excavation is completed.
1.          Within two years after excavation operations have ceased, excavated area must be leveled to a grade no steeper than a two-to-one slope.
2.          Where operations described herein have caused a pond or water hole, the permittee shall grade a slope which is not steeper than three-to-one within seventy-five (75) feet of any place in said pond or water hole.
(Ord. No.4, Eff. Feb. 2, 1979)
141.006         Penalties.
Sec. VI. Any person, individual, firm, corporation, association, or partnership found to be in violation of any of the provision of this ordinance, upon conviction, shall be punished by a fine not to exceed five hundred dollars (500), or by imprisonment in the county jail for a period not to exceed ninety (90) days, or by both fine and imprisonment. Each day that such violation continues after notice of violation has been served constitutes a separate offense.
(Ord. No.4, Eff. Feb. 2, 1979)
141.007         Severability.
Sec. VII. If any portion of this ordinance, or the application thereof to any person, individual, firm, corporation, association, or partnership or set of circum­stances, is adjudged to be invalid by a court of competent jurisdiction, such determination shall not affect the validity of any other portion of this ordinance or the application of any portion of this ordinance to any other person, individual, firm, corporation, association, partnership, or set of circumstances; and for this purpose each and every provision of this ordinance is hereby declared to be severable.
(Ord. No. 4, Eff. Feb. 2, 1979)
141.008         Effective date.
Sec. VIII. This ordinance shall become effective thirty (30) days after adop­tion and publication.
(Ord. No.4, Eff. Feb. 2, 1979)
141.009         Adoption.
Sec. IX. This ordinance is hereby declared adopted by the Township board of Berrien Township, Berrien County Michigan at a regular meeting thereof duly called and held on the 19th day of December, 1978.
(Ord. No.4, Eff. Feb. 2, 1979)