§ 155-E:2 — Permit Required

New Hampshire § 155-E:2

• Jurisdiction: New Hampshire
• Title XII: PUBLIC SAFETY AND WELFARE
• Ch. 155-E: LOCAL REGULATION EXCAVATIONS

Text

No owner shall permit any excavation of earth on his premises without first obtaining a permit therefor, except as follows:
I.
Existing Excavations. The owner of an 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 2-year period before August 24, 1979, may continue such existing excavation on the excavation site without a permit, subject to the following:
(a) Such an excavation site shall be exempt from the provisions of local zoning or similar ordinances regulating the location of the excavation site, provided that at the time the excavation was first begun, it was in compliance with such local ordinances and regulations, if any, as were then in effect.
(b) Such an excavation area may not be expanded, without a permit under this chapter, 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 of that date, as modified by the limitations of RSA 155-E:4-a, I, II, and II-a. In this paragraph the term "contiguous" means land whose perimeter can be circumscribed without interruption in common ownership except for roads or other easements, in a single town. It is further provided that when such excavation is not allowed in that location by local zoning or similar ordinances in effect on August 4, 1989, or when such ordinances allow such excavation only by special exception, expansion may be restricted or modified with conditions by order of the regulator if after notice to the owner and a hearing, the regulator finds that such expansion will have a substantially different and adverse impact on the neighborhood.
(c) Such an excavation shall be performed in compliance with the express operational standards of RSA 155-E:4-a and the express reclamation standards of RSA 155-E:5 and 155-E:5-a. Any violations of those standards shall be enforceable pursuant to RSA 155-E:10.
(d) The owners or operators of any existing excavation area for which no permit has been obtained under this chapter shall file a report with the local regulator within one year after receiving written notice of this requirement from the regulator and in no case later than 2 years following August 4, 1989. The report shall include:
(1) The location of the excavation and the date the excavation first began;
(2) A description of the limits of permissible expansion, as described in subparagraph (b), which are claimed to apply to the excavation;
(3) An estimate of the area which has been excavated at the time of the report; and
(4) An estimate of the amount of commercially viable earth materials still available on the parcel.
(e) The exemption from local zoning or site location regulations as stated in subparagraph (a) shall include the quarrying or crushing of bedrock for the production of construction aggregate; provided, however, that no owner shall, after August 4, 1989, permit any such quarrying or crushing of bedrock to occur for the first time on any excavation site without first obtaining a permit therefor under this chapter.
II.
Abandoned Excavations. The permit and zoning exemptions under RSA 155-E:2, I shall not apply to any abandoned excavation, as defined in subparagraph (a).
(a) For purposes of this section, any excavation, except for excavations or excavation sites described in RSA 155-E:2, III, whether subject to a permit under this chapter or not, for which the affected area has not yet been brought into complete compliance with the reclamation standards of RSA 155-E:5 shall be deemed "abandoned" if:
(1) No earth material of sufficient weight or volume to be commercially useful has been removed from that excavation site during any 2-year period, either before, on, or after August 4, 1989; provided, however, that before the end of such 2-year period, the owner or operator may extend the period by submitting to the regulator a reclamation timetable to be approved by the regulator, and posting a bond or other security with the municipal treasurer in a form and amount prescribed by the regulator, sufficient to secure the reclamation of the entire excavation site in accordance with the standards of RSA 155-E:5; or
(2) The excavation site is in use and is not an excavation or excavation site as described in RSA 155-E:2, III, but does not conform with the incremental reclamation requirement of RSA 155-E:5-a, or the owner or operator has not posted a bond or other security and submitted a reclamation timetable to be approved by the regulator as described in subparagraph (a)(1); or
(3) The owner or operator of the excavation has neither secured a permit pursuant to this chapter nor filed a report of an existing excavation pursuant to subparagraph I(d) within the prescribed period.
(b) In addition to the enforcement remedies of RSA 155-E:10, the regulator may order the owner of any land upon which an abandoned excavation is located to either file a reclamation timetable, to be approved by the regulator, and bond or other security as described in subparagraph II(a)(1), or to complete reclamation in accordance with this chapter within a stated reasonable time. Such an order shall only be made following a hearing for which notice has been given in accordance with RSA 155-E:7, if the regulator finds that the public health, safety, or welfare requires such reclamation. If the owner fails to complete reclamation within the time prescribed in the order, the regulator may request the governing body to cause reclamation to be completed at the expense of the municipality. The municipality's costs shall constitute an assessment against the owner, and shall create a lien against the real estate on which the excavation is located. Such assessment and lien may be enforced and collected in the same manner as provided for real estate taxes.
(c) The site of an excavation which ceased commercially useful operation prior to August 24, 1977, but for which the affected area has not been brought into compliance with the reclamation standards of RSA 155-E:5, may be made subject to the remedy prescribed in RSA 155-E:2, II(b) only if the regulator finds in writing that specified reclamation measures are necessary to eliminate or mitigate an identified hazard to public health or safety.
III.
Stationary Manufacturing Plants.
(a) No permit shall be required under this chapter for excavation from an excavation 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 August 24, 1979, and which use earth obtained from such excavation site. Such excavation shall be performed in compliance with the operational standards as expressly set forth in RSA 155-E:4-a and the reclamation standards as expressly set forth in RSA 155-E:5 and 155-E:5-a, which express standards shall be the sole standards with which such excavations must comply in order to retain their non-permit status as provided under this paragraph. Loss of such non-permit status shall be preceded by written notice from the regulator that the excavation is not in compliance and the owner shall have failed to bring such excavation into compliance within 30 days of receipt of such notice. Such excavation may be expanded without a permit under this chapter to any contiguous lands which were in common ownership with the site of the plant on August 4, 1989, except as limited by RSA 155-E:4-a, I, II, and III.
(b) No further permit shall be required under this chapter for excavation from a site which on August 4, 1989, was contiguous to or was 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 use earth obtained from such site. It is further provided that their operation and reclamation shall continue to be regulated by such local or state permits and any renewals or extensions thereof by the permitting authority or authorities.
IV.
Highway Excavations. No permit shall be required under this chapter for excavation which is performed exclusively for the lawful construction, reconstruction, or maintenance of a class I, II, III, IV or V highway by a unit of government having jurisdiction for the highway or an agent of the unit of government which has a contract for the construction, reconstruction, or maintenance of the highway, subject, however, to the following:
(a) A copy of the pit agreement executed by the owner, the agent, and the governmental unit shall be filed with the regulator prior to the start of excavation. The failure to file such agreement, or the failure of the excavator to comply with the terms of such agreement, shall be deemed a violation of this chapter, and may be enforced pursuant to RSA 155-E:10.
(b) Such excavation shall not be exempt from local zoning or other applicable ordinances, unless such exemption is granted pursuant to subparagraph (c), or from the operational and reclamation standards as expressly set forth in RSA 155-E:4-a, 155-E:5 and 155-E:5-a, which express standards shall be the sole standards with which such excavations must comply in order to retain their non-permit status as provided under this paragraph. Before beginning such excavation, the governmental unit or its agents shall certify to the regulator that:
(1) The excavation shall comply with the operational and reclamation standards of RSA 155-E:4-a, RSA 155-E:5, and 155-E:5-a.
(2) The excavation shall not be within 50 feet of the boundary of a disapproving abutter or within 10 feet of the boundary of an approving abutter, unless requested by said approving abutter.
(3) The excavation shall not be unduly hazardous or injurious to the public welfare.
(4) Existing visual barriers in the areas specified in RSA 155-E:3, III shall not be removed, except to provide access to the excavation.
(5) The excavation shall not substantially damage a known aquifer, so designated by the United States Geological Survey.
(6) All required permits for the excavation from state or federal agencies have been obtained.
(c) The department of transportation or its agent may apply directly to the appeals board created under RSA 21-L to be exempted from the provisions of local zoning or other ordinances or regulations, with respect to the excavation or transportation of materials being used exclusively for the lawful construction, reconstruction, or maintenance of a class I, II, or III highway.
(1) The application shall state whether the applicant has requested any exceptions or variances which may be available at the local level, and shall describe the outcome of such requests.
(2) Prior to acting on the application, the board shall hold a hearing in the municipality whose ordinance or regulation is at issue. At least 7 days prior to such hearing, notice shall be published in a newspaper of general circulation in the municipality, and shall be sent by certified mail to the applicant, the municipality's chief executive officer as defined in RSA 672:9, the chairman of its governing board as defined in RSA 672:6, the chairman of the local regulator as defined in RSA 155-E:1, the chairman of its conservation commission, if any, and, if the proposed exemption concerns an excavation site, to the abutters of that site as defined in RSA 672:3.
(3) Following the hearing, the board shall issue a written decision, copies of which shall be mailed to the applicant and the parties to whom notice was sent. If an exemption is granted, the written decisions shall include:
(A) A statement of the precise section of the ordinance or regulation from which the applicant is exempted. The applicant shall not be exempt from any section or provisions not so listed.
(B) An identification of the public interest being protected by the ordinance or regulation.
(C) A statement of the state interest involved, and of why, in the opinion of the board, that state interest overrides the interest protected by the ordinance or regulation.
(D) Any conditions to be imposed on the applicant, to protect the public health, safety, or welfare.
(4) The decision of the board may be appealed in the manner provided for zoning decisions in RSA 677:4-14; provided, however, that a decision under this section shall be considered a rehearing under RSA 677, and no further motion for rehearing shall be required.

Legislative History

1979, 481:2. 1985, 88:2. 1988, 285:8. 1989, 363:3. 1991, 310:4-9, eff. Aug. 23, 1991.