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Residents React Kent Mining Law

By Lori Samuels

Comments were received on the latest draft of the Town of Kent’s proposed excavation law at an Aug. 1 Kent Town Board meeting.

For the past year, stakeholders have been drafting an amendment to the Kent town code to address the excavation of — and sale or exchange of — topsoil, sand, gravel, rock or other Earth substances. This action was prompted after a plan to build a truck stop in town caused a firestorm response from residents when it was learned that the proposal would have allowed the developer to essentially mine part of the property and remove and sell the excavated material off-site.

The updated code is intended to clarify requirements ensuring that excavation is conducted in a manner that will protect residential and local business areas and the value of land from potential adverse impacts. The code will also limit the amount of excavation to the minimum required for site preparation, and will avoid the creation of a disturbed, barren area of land inconsistent with the town’s natural environment.

Finally, it intends to prevent adverse effects of disturbed land such as erosion and pollution.

With a copy of the latest draft document in hand, Eileen Civitello said she’s happy to see progress being made on the law, but that the draft is hard to understand.

“I don’t see the prevention of mining explicitly,” she said. “Also, why isn’t the term ‘rock’ in here? The term ‘materials’ isn’t specific enough. Excavation of rocks is a billion-dollar industry in New York State. Rock is a precious commodity and residents should have a say in the removal of rocks.”

Reference was made to the New York State Department of Environmental Conservation’s limit of 750 cubic yards or 1,000 tons of excavation in the existing code.

Civitello asked, “Is this just a revision to the current code?” to which the board replied affirmatively, and indicated that the title of the new document eliminates the term “mining,” replaced by “soil removal and excavation,” to reflect the prohibition of mining as stated in the document.

Bruce Barber, the town’s environmental consultant, indicated that this particular draft ordinance has been a work in progress for about a year, and that the current draft is in its seventh or eighth version. He said there has been a lot of participation, and thoughtful questions have been welcomed, although some residents are seeing this latest version for the first time.

He clarified that the code prohibits mining where rocks are excavated and removed. The question is: “How do we balance good development without too much processing of rocks? The goal is not to limit profit, but to create a threshold of how much rock is processed and removed, versus processing and reusing the material on the site,” he said.

Processing, for example, could mean grinding down rocks to use as the foundation for a new house.

“If a developer is going to go over the 75-cubic-yard threshold, and they need to get a DEC permit, how do we know if someone is going to get the DEC permit without the town knowing?” asked Kathy Doherty, bringing up the Route 52 bus garage controversy, when a developer did just that.

According to Barber, the previous code had a loophole in which the developer followed the rules in place at the time, and was able to get site plan approval because the Planning Board didn’t have the tools that are now in today’s code.

Also related to the 750-cubic-yard threshold, Doherty asked, “Are we talking about one project or individual lots?” The board indicated that the code refers to the threshold of 750-cubic-yard removal per entire project, no matter how many lots are on the site.

It was also asked if there was some way both the planning and town boards would know if the developer is nearing the threshold. According to Barber, in the revised code, the Planning Board is the gatekeeper. If the developer receives a DEC permit, the Planning Board will be brought in.

As to who gets the paperwork, the Town Board agreed it should be a full-time town employee. Currently, Building Inspector Bill Walters, who also serves as the code enforcement officer, will be receiving application documents.

Additionally, according to the code, the developer is required to submit weekly reports, prepared by engineers, showing the status and progress of the excavation activity. It was clarified that these weekly reports would also go to the building inspector/code enforcement officer.

One issue of concern brought up by Julie Boyd was the definition of “restoration.” She indicated that the restoration plan from the Route 52 bus project didn’t turn out as expected and should be defined as what the town expects. The board said that on future sites, “the restoration plan will be in the control of the Town Board, not the state.”

As to phasing, Boyd asked, “Does one phase get finished first before going on to the next phase?” The board answered yes, noting that a certificate of occupancy must be issued before moving on to the next phase

The board raised a final concern related to dredging, asking if that would constitute mining. For instance, if a lake community got permits to dredge, would that be considered mining? Barber said he will follow up to clarify the answer to that question.

Written comments related to the excavation law are being accepted through Aug. 17, and should be submitted to Kent Town Clerk Yolanda Cappelli. The code is expected to be adopted before Labor Day.

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