Loading...
HomeMy WebLinkAboutOrdinance 5281 '!�I IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII �III1���III1311111111111DOC 0111311170212ll000l16 Type : REL Kind : ORDINANCE Recorded : 11/ 17/2009 at 03 : 28 : 04 PM Fee Amt : $40 . 00 Pace 1 of 6 Meahinaton County . AR Bette 6tC�u1t Clerk Flle OO 997 00036591 ORDINANCE NO. 5281 AN ORDINANCE TO PREVENT INJURY OR ANNOYANCE WITHIN THE CORPORATE LIMITS OF FAYETTEVILLE BY REGULATING RED DIRT MINING FACILITIES SO THAT THESE FACILITIES WILL NOT BE NUISANCES WHEREAS, the City Council of the City of Fayetteville, Arkansas recognizes the need for red dirt mining facilities to supply necessary red dirt for building construction, parking lot and road construction within and near the corporate limits of Fayetteville; and WHEREAS, the Fayetteville City Council has listened to experts and citizens and determined that any blasting that could be used in red dirt mining could cause nuisance effects upon nearby structures (especially homes) and their inhabitants; and WHEREAS, the Fayetteville City Council has also learned and determined that without the reasonable regulations required by this ordinance an operating red dirt mining facility can cause vibrations, dust, ground upheaval, loud noises, fumes and other deleterious effects within a mile from the red dirt mining facility to such an extent that the red dirt mining facility would be a nuisance to Fayetteville citizens; and WHEREAS, the Fayetteville City Council has also heard from citizens living near an existing and operating red dirt mining facility and determined that unregulated blasting, dirt excavating, dump truck loading, dump truck tailgate banging and other red dirt mining facility activities would be a nuisance to Fayetteville citizens and potentially damaging to their property and city streets; and WHEREAS, unless the frequency of blasting, its distance from houses, the elimination of dump truck tailgate banging, the hours and days of red dirt mining facility operation near residences to prevent noise, dust and fumes in excess of ADEQ limits from escaping the red dirt farm are properly regulated and controlled, such a red dirt mining facility would constitute a nuisance to Fayetteville residents and citizens and should be abated. Page 2 Ordinance No. 5281 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby enacts Chapter 113 Rock Quarries and Red Dirt Mining Facilities of the Code of Fayetteville, Article II Red Dirt Mining Facility Operating License as shown on the attached Exhibit A. ,,,1larlrry,rs ,, PASSED and APPROVED this the 20'" day of October, 2009. r�� .•'G�SY o,W. G.p'o ; FAYETTEVILLE ; APPROVED: ATTEST: '�9s'9RkANSP.• �$ Vol' T III Bit By: 4-400 By: / LIO LD JOIJJJAA, Mayor SONDRA E. SMITH, City Clerk/Treasurer EXHIBIT "A" ARTICLE II. Red Dirt Mining Facility Operating quarry operator, the Director of License Development Services may designate another weekday during the next five §113.11. Finding of Nuisance and Need weekdays as a permitted blast day. for Abatement (4) Upon timely request by the red dirt The City Council of the City of Fayetteville, mining facility operator, the Director of Arkansas determines and finds that the Development Services or designee is operation of a red dirt mining facility would empowered to grant a variance of the be a nuisance to the citizens and City of time limitations for rock blasting if Fayetteville, Arkansas if operated or used inclement weather or other condition other than as prescribed in § 113 . 12 and, beyond the reasonable control of the therefore, should be abated by the operator has caused a safety issue that reasonable regulations required by this requires blasting outside the 10:00 a.m. ordinance. until 3 :00 p.m. permitted period. Re- notification is not required unless §113. 12. Regulations to Abate Nuisance blasting is moved to another day. (A) Rock Blasting/Use of Explosives. (5) The red dirt mining facility operator shall notify by telephone the Director of ( 1 ) No blasting shall be allowed within Development Services and any 60 yards of any house within the city Fayetteville neighbor within a mile of limits of Fayetteville. his quarry who has requested such notification at least two hours prior to (2) No blasting explosive charge or rock blasting. location shall exceed the most restrictive limitations within federal, state and (B) Operation of Red Dirt Mining Facility. Washington County regulations or laws. ( 1 ) All red dirt mining facilities within (3) All blasting within the permitted red the city limits of Fayetteville or within dirt mining facility shall only be allowed one mile beyond the city limits of between the hours of 10:00 a.m. and Fayetteville shall only be allowed to 3 :00 p.m. on the first and third operate during the period of 7:00 a.m. Wednesday of each month unless such until 6:00 p.m. Monday through Friday, Wednesday is a federal or city holiday. and during 7 :00 a.m. until noon on If such Wednesday is a holiday, the Saturday. No major noise producing permitted blasting day will be moved to activities shall occur before 8 :30 a.m. or the next day (Thursday). If the after 4:30 p.m. on a weekday or anytime permitted blasting day would be unsafe on Saturday or Sunday. No red dirt or not feasible or practical because of mining facility shall be allowed to inclement weather or other condition operate on a federally recognized beyond the reasonable control of the holiday or Sunday. 3 (2) All red dirt mining facilities within to ensure that any and all vehicles the city limits of Fayetteville or within leaving the red dirt mining facility shall one mile beyond the city limits of have all mud and dirt removed from the Fayetteville shall be prohibited from any tires and exterior parts of the body of all operations until the owner/operator of vehicles prior to exiting the site onto such facility has obtained a valid, annual public roads. Red Dirt Mining Operating License. This license to operate shall be issued by (3) Red dirt. The red dirt mining the Fayetteville Planning Department on operator is responsible to ensure that all a fiscal year (July 1 through June 30) dump trucks leaving the red dirt mining schedule with no fee assessed. site that may utilize any city street and are carrying more than half a truck load (C) Dust, Mud and Rock Control Measures. of red dirt have their load fully and properly covered. All red dirt mining facilities within the city limits of Fayetteville or within one mile (4) Dump truck identifying number. In beyond the city limits of Fayetteville shall order for citizens to easily and correctly only be allowed to operate with the identify dump trucks and their following safeguards and measures to ensure owner/operators who are servicing the that dust, dirt, mud, loose rock, and all other red dirt mining facility, the red dirt possible irritants or nuisance substances do mining operator shall require any dump not adversely affect Fayetteville residents. truck accessing or servicing his facility It is the express continuing duty of the to have an easy to read four digit number licensed red dirt mining facility operator to at least six inches high and twelve inches ensure all of these safeguards, requirements wide on the tail gate of the dump truck. and measures are constantly enforced. The red dirt mining operator shall maintain an up-to-date and accurate log ( 1 ) Dust control measures. Water or of the owner and operator of each other substances or measures must be numbered dump truck and shall fully effective during the operation of immediately supply the owner and the red dirt mining to ensure the red dirt operator' s name, address and contract mining facility is in full and continual information to any Fayetteville compliance with the requirements of the employee, official or citizen who Arkansas Water and Air Pollution requests such information. Control Act as administered by the Arkansas Department of Environmental (5) Only dump trucks with proper Quality. A violation of the permit identifying number may be loaded The conditions required by the Arkansas red dirt mining operator shall not load or Department of Environmental Quality permit to be loaded or permit to exit the can be grounds for a suspension or red dirt mining facility any dump truck revocation of the City's Red Dirt Mining unless the identifying number specified Facility Operating License. (See in subsection (4) is clearly legible, easy § 133 . 15) to read and not obscured by dirt, mud or otherwise. (2) Dirt and mud control measures. The red dirt mining operator is required 4 (D) Control of Dump Truck Tailgate dwelling, a residence, an apartment, a Banging condominium, a dormitory, a hotel or motel. It is the express duty of the red dirt mining (C) "Operation of Red Dirt Mining Facility" facility operator to prevent a dump truck means any blasting, operation of any delivering anything to the red dirt mining mechanical equipment on the premises of facility or receiving red dirt from the the red dirt mining facility or any operation facility to engage in Dump Truck Tailgate of dump trucks or other large vehicles on the Banging as defined in § 113 .04 (E) at any premises of the red dirt mining site. time upon its property. Starting, running the engine or moving any equipment or dump truck on the premises The red dirt mining facility operator shall shall constitute operation of the red dirt keep a record of the owner/operator and mining facility. number of the offending dump truck to include the date and time of the occurrence. (D) "Major Noise Producing Activities" No dump truck which has banged its tailgate means blasting, rock breaking, dump truck shall be loaded or otherwise serviced for a tailgate banging, and the use by the red dirt full operational day of the red dirt mining mining facility operator of non-static backup facility after the incident to include all day warning devices on its loader or other major Monday if the tailgate banging occurs after equipment. Rock crushing within a half- 4:30 p.m. Friday or anytime on Saturday or mile of a house within the city limits of Sunday. Loading or servicing such dump Fayetteville is also a major noise producing truck during this suspension shall constitute activity. a violation of this ordinance and the Red Dirt Mining Facility Operating License. (E) "Dump Truck Tailgate Banging" means the avoidable and loud banging of a dump §113.13: Jurisdiction of This Ordinance. truck tailgate used to vibrate the bed to loosen material in the bed sought to be Pursuant to A.C.A. § 14-54- 103( 1 ), this dumped. The relatively quiet bang that ordinance to abate a nuisance shall be might be unavoidable when a dump truck applicable to any and all red dirt mining load is dumped and the truck moves away facilities located within the corporate limits form the pile without applying the truck' s of Fayetteville and for one ( 1 ) mile beyond brakes is not regulated by this ordinance. the city limits as prescribed in A.C.A. § 14- 262- 102. 113. 15: Issuance, Suspension or Revocation of License. §113.14 : Definitions. (A) Issuance. The Director of Development (A) "Red dirt mining" means any open Services or designee shall prepare and issue excavation used for obtaining red dirt or an annual Red Dirt Mining Facility other type of soil used for paving or building Operating License upon proper application purposes. of an owner/operator of a red dirt mining facility within the jurisdiction of this (B) "House" means any habitable structure ordinance after ensuring the owner/operator including a mobile or manufactured home, a will be in full compliance with all requirements of this ordinance and has all 5 other current and valid federal, state and the limits of this ordinance and shall be county permits required for red dirt mining guilty of a criminal violation for any operation. violation of the requirements of this ordinance. (B) Suspension. The Director of Development Services may suspend a Red (B) The Red Dirt Mining Facility Dirt Mining Facility Operating License for Operating License may be revoked or up to thirty (30) days for violations of the suspended by the Director of Development terms of the license after a due process Services after a due process hearing for an hearing. owner' s, manager' s, operator' s, employee's, or lessee' s violation of any terms or limits (C) Revocation. The Director of within this ordinance or for operating the red Development Services may revoke a Red dirt mining facility not in conformity with Dirt Mining Facility Operating license for its Red Dirt Mining Facility Operating repetitive, continuing, intentional, or License. substantial violations of the requirements of this ordinance. The Director of (C) Any owner, operator, manager, lessee Development Services may require adequate or employee of a Red Dirt Mining Facility assurances that any operator whose license shall be guilty of a criminal violation if such has been revoked will fully comply with the person operates the red dirt mining facility Red Dirt Mining Facility Operating License in violation of any of the terms of this before reissuing another license. ordinance, without a current and valid Red Dirt Mining Facility Operating License, or (D) Appeal. Any person whose license has in violation of any of the terms of his Red been suspended or revoked pursuant to this Dirt Mining Facility Operating License. section, may appeal such suspension or revocation to the City Council by providing (D) Each violation of the operational hour the City Clerk' s Office with a written limitations or the number of blasting events request for City Council review within ten allowed by this Ordinance or the applicable business days of the issuance of suspension Red Dirt Mining Facility Operating License or revocation. The City Council may then shall constitute a separate violation of this determine whether the red dirt mining ordinance and shall be punishable by a fine facility owner/operator violated the of up to $500.00. requirements of the ordinance and, if so, whether suspension (up to 30 days) or § 113.17: No reduction in property revocation is appropriate for such violation. owner's right to sue for nuisance. §113. 16: Penalty. Nothing in this ordinance removes or reduces a property owner' s right to sue or (A) Any owner, lessor or lessee of real seek an injunction against any owner or property upon which is located a red dirt operator of a red dirt mining facility if a mining facility and any operator, manager, court of competent jurisdiction finds that or employee of such red dirt mining facility such facility constitutes a private or public shall ensure such facility is operated within nuisance to that property. 6 AGENDA REQUEST FOR: COUNCIL MEETING OF SEPTEMBER 1, 2009 FROM: Shirley Lucas, Council Member Sarah Lewis, Council Member ORDINANCE OR RESOLUTION TITLE AND SUBJECT: An Ordinance To Prevent Injury Or Annoyance Within The Corporate Limits Of Fayetteville By Regulating Red Dirt Mining Facilities So That These Facilities Will Not Be Nuisances APPROVED FOR AGENDA: a � D Shirley Lucas Date :ouncilMeber Sarah Lewis Date Council Member qC Kit WilliatuA Date City Attorney (as to form) cm 3cct:j wigol to/G/09 CCK-� . �4 � &Ud Ret k;9 9-15- -Og /dl2 l U11 Dr) ( rY �PctCCc dty� q- I- t3q crt /cje 177 1 , r FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Lioneld Jordan, Mayor City Council CC : Don Marr, Chief of Staff Jeremy Pate, Development Services Director � FROM: Kit Williams, City Attorney DATE: August 19, 2009 RE: Proposed Chapter 113 Rock Quarries and Red Dirt Mining Facilities of the Code of Fayetteville Several months ago, City Council members Sarah Lewis and Shirley Lucas asked me to attend a meeting of Ward 4 residents who were concerned and unhappy about problems caused to their neighborhood by a Rock Quarry and Red Dirt Mining Facility near their homes. These city residents described regular disturbing activities that operation of the quarry and red dirt mine were inflicting upon them in their homes and on their property. These nuisance type activities included: (1 ) the dust, noise and vibration from frequent blasting of the rock for quarrying; (2) the noise, dust and fumes from the machines operating at the quarry and red dirt mine; (3) the large number of dump trucks which serviced the quarry and red dirt farm which often immediately entered city streets and caused traffic problems and safety issues during morning and afternoon school rush hours; (4) the amount of red dirt and rocks that fell from these dump trucks onto city streets and right-of-way. These trucks were often uncovered with very little freeboard. The City Council Ordinance Review Committee held several meetings to fine tune the initial ordinances I drafted pursuant to the requests of City Council Members Lucas and Lewis. Neighbors attended these public meetings and also provided input information and suggestions. The owners or managers of the rock quarry and red dirt mining operation did not attend to provide any input. I recommend that the ordinances be left on the first reading so that the rock quarry and red dirt mining owners and operators can review these ordinances for fairness and utility. These ordinances would mandate that each operator of a rock quarry or red dirt mining facility within the city and within one mile of the city limits must obtain a license from the City to operate their facility. The ordinances prescribe measures that an operator must take to prevent his facility from being a nuisance to Fayetteville residents. These measures restrict: ( 1 ) the frequency of allowed explosions; (2) require dust control measures; (3) restrict the days of operation to regular workdays (Monday-Friday); (4) restrict the hours of operation with longer hours allowed in the summer when school is out; (5) require dump trucks servicing the facility to have their loads covered more frequently than now allowed; and (6) require other measures to abate the potential of the facility to be a nuisance to our citizens. ORDINANCE AS AMENDED BY THE CITY COUNCIL ON SEPTEMBER 15, 2009 ORDINANCE NO, AN ORDINANCE TO PREVENT INJURY OR ANNOYANCE WITHIN THE CORPORATE LIMITS OF FAYETTEVILLE BY REGULATING RED DIRT MINING FACILITIES SO THAT THESE FACILITIES WILL NOT BE NUISANCES WHEREAS, the City Council of the City of Fayetteville, Arkansas recognizes the need for red dirt mining facilities to supply necessary red dirt for building construction, parking lot and road construction within and near the corporate limits of Fayetteville; and WHEREAS, the Fayetteville City Council has listened to experts and citizens and determined that any blasting that could be used in red dirt mining could cause unavoidable damaging or nuisance effects upon nearby structures (especially homes); and WHEREAS, the Fayetteville City Council has also learned and determined that an operating red dirt mining facility can cause vibrations, dust, ground upheaval, loud noises, fumes and other deleterious effects within a mile from the red dirt mining facility; and WHEREAS, the Fayetteville City Council has also heard from citizens living near an existing and operating red dirt mining facility and determined that unregulated blasting, dirt excavating, dump truck loading and other red dirt mining facility activities are offensive and potentially unhealthy and dangerous to Fayetteville citizens and damaging to their property and city streets; WHEREAS, unless the frequency of blasting, its distance from houses, the hours and days of red dirt mining facility operation near residences to prevent noise, dust and fumes in excess of ADEQ limits from escaping the red dirt farm are properly regulated and controlled, such a red dirt mining facility would constitute a nuisance to Fayetteville residents and citizens and should be abated. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby enacts Chapter 113 Rock Quarries and Red Dirt Mining Facilities of the Code of Fayetteville, Article II Red Dirt Mining Facility Operating License as shown on the attached Exhibit A. PASSED and APPROVED this the 6`h day of October, 2009. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer 2 EXHIBIT "A" ARTICLE II. the operation of the red dirt mining to ensure the red dirt mining facility is in full and continual compliance with the Red Dirt Mining Facility Operating License requirements of the Arkansas Water and Air Pollution Control Act as administered by the Arkansas Department of Environmental Quality. A violation of the permit conditions §113.11 . Finding of Nuisance and Need for required by the Arkansas Department of Environmental Abatement Quality can be grounds for a suspension or revocation of the City's Red Dirt Mining Facility Operating License. (See The City Council of the City of Fayetteville, §133. 15) Arkansas determines and finds that the operation of a red dirt mining facility is a nuisance to the citizens and City of (2) Dirt and mud control measures. The red Fayetteville, Arkansas if operated or used other than as dirt mining operator is required to ensure that any and all prescribed in §113. 12 and, therefore, should be abated by vehicles leaving the red dirt mining facility shall have all mud the reasonable regulations required by this ordinance. and dirt removed from the tires and exterior parts of the body of all vehicles prior to exiting the site onto public roads. §113.12. Abatement of Nuisance (3) Red dirt. The red dirt mining operator is responsible to ensure that all dump trucks leaving the red (A) Rock Blasting/Use of Explosives. dirt mining site that may utilize any city street and are carrying more than half a truck load of red dirt have their (1 ) No blasting shall be allowed within 60 yards load fully and properly covered. of any house within the city limits of Fayetteville. (4) Dump truck identifying number. In order for (2) No blasting explosive charge or location citizens to easily and correctly identify dump trucks and their shall exceed the most restrictive limitations within federal, owner/operators who are servicing the red dirt mining facility, state and Washington County regulations or laws. the red dirt mining operator shall require any dump truck accessing or servicing his facility to have an easy to read (3) All blasting within the permitted red dirt four digit number at least six inches high and twelve inches mining facility shall only be allowed one day per month wide on the tail gate of the dump truck. The red dirt mining between the hours of 10:00 a.m. and 3:00 p.m, during a operator shall maintain an up-to-date and accurate log of the single weekday (non-holiday) pursuant to the Red Dirt owner and operator of each numbered dump truck and shall Mining Operating License. immediately supply the owner and operator's name, address and contract information to any Fayetteville employee, (B) Operation of Red Dirt Mining Facility. official or citizen who requests such information. (1 ) All red dirt mining facilities within the city (5) Only dump trucks with proper identifying limits of Fayetteville or within one mile beyond the city limits number may be loaded. The red dirt mining operator shall of Fayetteville shall only be allowed to operate during the not load or permit to be loaded or permit to exit the red dirt period of 8:30 a.m. until 3:00 p.m. Monday through Friday mining facility any dump truck unless the identifying number from August 20 through June 5 and during the period of specified in subsection (4) is clearly legible, easy to read and 8:00 a.m. until 5:30 p.m. Monday through Friday from June not obscured by dirt, mud or otherwise. 60 through August 19 . No red dirt mining facility shall be allowed to operate on a federally recognized holiday. §113.13: Jurisdiction of This Ordinance. (2) All red dirt mining facilities within the city limits of Fayetteville or within one mile beyond the city limits Pursuant to A.C.A. §14-54-103(1 ), this ordinance of Fayetteville shall be prohibited from any operations until to abate a nuisance shall be applicable to any and all red dirt the owner/operator of such facility has obtained a valid, mining facilities located within the corporate limits of annual Red Dirt Mining Operating License. This license to Fayetteville and for one (1 ) mile beyond the city limits as operate shall be issued by the Fayetteville Planning prescribed in A.C.A. §14-262-102. Department on a fiscal year (July 1 through June 30) schedule with no fee assessed. §113.14: Definitions. (C) Dust, Mud and Rock Control Measures. (A) "Red dirt mining" means any open excavation used ,for obtaining red dirt or other type of soil All red dirt mining facilities within the city limits used for paving or building purposes. of Fayetteville or within one mile beyond the city limits of Fayetteville shall only be allowed to operate with the (B) "House" means any habitable structure following safeguards and measures to ensure that dust, dirt, including a mobile or manufactured home, a dwelling, a mud, loose rock, and all other possible irritants or nuisance residence, an apartment, a condominium, a dormitory, a substances do not adversely affect Fayetteville residents. It hotel or motel. is the express continuing duty of the licensed red dirt mining operator to ensure all of these safeguards, requirements and (C) "Operation of Red Dirt Mining Facility' measures are constantly enforced. means any blasting, operation of any mechanical equipment on the premises of the red dirt mining facility or any (1 ) Dust control measures. Water or operation of dump trucks or other large vehicles on the other substances or measures must be fully effective during premises of the red dirt mining site. Starting, running the 3