Local law may change excavation regulations
The Daily Mail
Mar. 10, 2009

ATHENS — The town of Athens Zoning Board of Appeals last week got a sneak peak at a proposed new local law that will repeal an existing ordinance requiring Athenians to obtain a permit for earth removal and deposition work on their property.

Although they generally approved of the proposal, board members questioned some of the rationale behind the law’s wording and concept.

The proposed law, which only pertains to deposition, was drafted by Town Attorney Carl Whitbeck and presented to the Town Board Monday night. The proposed law states that up to 500 cubic yards or 750 tons of gravel, rock, topsoil and other clean materials within 12 months before a permit is needed.

The current law requires a permit to place or to remove 1,000 cubic yards or 750 tons.

State laws require a permit if over 1,000 cubic yards or 750 tons of earth will be removed from or placed on a property.

A public hearing on the proposed law will be held at 7 p.m. March 16 at the Athens Town Hall, at 2 First St. The Town Council will vote on the law later that night.

ZBA Chairman Joe Iraci told the board, which includes veterans of the zoning process as well as new members, that the proposed law will directly affect the board.

At least one project pending before the ZBA may require a permit and has been set aside until after the Town Council votes to adopt the new law, Iraci said.

“Whatever these determinations are, we’re going to have to know them and we’re going to have to take them into consideration when people want variances,” he said.

Currently, the ZBA plays a role in issuing permits for such work, but the proposed law will remove the board from the decision making process.

Under the current law, an applicant must take four steps before fill can be dumped at a work site.

First, an applicant must receive a permit to deposit fill from the state Department of Environmental Conservation and then get approval from the Town Board. Next, the applicant must obtain a bond that will cover the costs of land reclamation or of redoing the project if it was done incorrectly. Finally, the applicant must be granted a permit by the ZBA.

An applicant has no recourse if the permit application is denied, Iraci said.

“The town is involved with it. The Zoning Board is involved with it,” he said, asking, “who do you appeal to?”

Under the proposed new law, the town’s code enforcement officer has the task of approving or denying the permit application. If a permit is denied, the applicant can bring the project plans before the ZBA, Iraci said.

“Getting it out of the town and out of the Board is probably a really good move,” he said.

ZBA members discussed whether the law offered an exemption for farmers or if farms were subject to an existing agriculture law, if work to raise septic tanks would fall under the law and why the minimum fill requirement was changed.

April Paluch, who sits on the board, said she was concerned by the changes made to the volume requirement and how the weight determination would be measured.

“Where are they going to go, 15 miles up the road for a scale?” she asked.

The proposed law does not specify whether topographic plans, which will need to be presented to the code enforcement officer, have to be drawn by an expert or have to be certified. Members of the ZBA agreed that this ambiguity is a positive aspect to the law.

Paluch painted out that creating or obtaining the topographic maps could be a “big time” expense.

Board member Kerry Sager worried that the cost for an applicant to hire a surveyor or engineer to draw up a topographical plan may be prohibitive, and asked whether maps already available from the county would be appropriate.

“You’re going to force people to try to do it without getting the permit,” she said.

Richard Golden, who also sits on the board, drew on past experiences working with similar issues in Sleepy Hollow Lake and said he always required a topographic plan unless the proposed work area was completely flat.

The board members agreed that such plans were necessary in order to determine how a project may affect water drainage.

They also agreed they would like the option of asking an applicant for a certified plan should the project come before their board.

Iraci said board members addressed their concerns with Town Supervisor Al Salvino and were told that modifications to the law were already underway.

The issue was first raised to Salvino and the Council late last year when a resident who held a permit under the current law asked if the town would take action against excavators in the town who did not possess a permit.

Iraci said he was glad that the ZBA was able to look over a draft of the new law before the public hearing.

“We get a chance to get our oar in the water a little bit,” Iraci said.