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A. Applicability

Grading permits are required prior to grading as specified in Section 27.9.D.

B. Type 1 Grading Permits

1. Permit Application and Review

a. The grading permit application, grading plan, and other required materials should be submitted for review to the Town.

b. The grading permit application shall be completed and signed by the owner or owner’s authorized representative.

c. The grading plan will be reviewed for consistency with the applicable regulations and standards, and if approved, a grading permit will be issued. The grading permit may be issued with additional conditions as deemed necessary by the Town.

d. If determined to be inadequate, the materials submitted will be returned for corrections. The applicant may resubmit, without additional fees, corrected plans, or materials necessary to conform to submittal requirements.

2. Permit Issuance and Expiration

a. Upon issuance of a grading permit, a copy of the permit and approved plan shall be kept in a conspicuous and accessible location on the site.

b. A grading permit shall be null and void if the authorized work has not been completed within 180 days of permit issuance.

3. Permit Extensions and Reapplication

a. Upon written request by the permit holder, the Town may grant a single extension up to 180 days. Requests must be submitted prior to the date of expiration. Consideration will be given to extension requests when quantifiable evidence is submitted.

b. A reapplication for a grading permit shall be treated as a new application. Fees and additional conditions may be imposed as a result.

4. Inspections

a. Pre-grading (when required by subdivision plat notes): The inspector will verify limitations for building pad and other areas to be graded, and identify vegetation required to be salvaged. The grading limitations must be staked or otherwise clearly identified prior to inspection.

b. Rough grading (to be done prior to construction of residence): The inspector will verify grading to be within limitations of approved plans. Certification of the building pad elevation by a registered land surveyor or civil engineer shall be presented to the inspector at this time.

c. Final grading (to be done prior to final building inspection): The inspector will verify that all prescriptive requirements of the approved grading/site plan have been satisfied.

5. Incomplete Final Grading; Temporary Occupancy

a. In the event that the final grading cannot be completed in its entirety, an assurance, in a form acceptable to the Town, may be posted to allow inspection and occupancy of the residence. This assurance shall be in an amount equivalent to one hundred twenty percent (120%) of the cost to complete the work as shown on the approved grading plan and/or in compliance with this Code. A cashier’s check made payable to the Town is an acceptable form of assurance for this purpose.

b. The determination of the cost of the remaining work shall be by bids acquired by the permittee. The building official shall make the final judgment as to the adequacy of the assurance amount.

c. If the balance of the work has not been completed within one hundred twenty (120) days of the date of the temporary certificate of occupancy, the Town may use the assurance to complete the work.

d. When an assurance is to be posted as a temporary substitute for a final grading inspection, it will still be necessary to have adequate drainage away from the structure. In addition, temporary or permanent means of preventing silting onto public rights-of-way will be required.

C. Type 2 Grading Permits

1. Permit Application

a. The grading permit application, grading plan and other required materials should be submitted to the Town for review and approval.

b. The grading permit application shall be completed and signed by the property owner or his/her authorized representative.

c. At the discretion of the Town, grading assurances may be required in the form of assurance or other security acceptable to the Town. In the event that grading is not completed as approved, the assurances may be applied to:

i. Eliminate potential hazardous conditions; or

ii. Mitigate the effects of dust, drainage, erosion, visual scars or hazardous conditions in a manner acceptable to the Town.

2. Permit Application Review

a. Grading plans and related submittals will be reviewed concurrent with the final plat or development plan (submitted after Planning and Zoning Commission approval), plant salvage and landscape plan for the project.

b. Grading plans, soils and drainage reports will be reviewed for consistency with applicable regulations and standards, plant salvage and landscape plans and any conditions imposed upon rezoning, development plan or subdivision plat approval. Plans determined to be inadequate or incomplete will be returned for correction and resubmittal. Where inconsistency between plans is evident, the appropriate plan will be resubmitted for review and approval.

c. The Town will provide written review comments and/or redlined plans to the applicant upon review. Should the grading plans need to be submitted three (3) or more times for review by the Town, the applicant shall be required to pay an additional review fee at the time of the third and each subsequent resubmittal of the grading plans for review by the Town.

d. Prior to approval of the grading plan, soils report and drainage report, the Town may inspect the site to determine that the submittals are current and reflect existing conditions.

e. The Town shall require the plans and specifications to be modified to make them consistent with this Code and/or any prior conditions placed upon approval of the project. A grading permit may be issued with additional conditions.

f. When the grading plans (and improvement plans) meet applicable Town Codes to the satisfaction of the Town, the Town Community Development Director or his/her designee will sign the approval block on said plans.

3. Preliminary Grading Plan

A preliminary grading plan shall be submitted concurrently with the initial submittal of a preliminary plat and development plans.

4. Permit Issuance and Expiration

a. Issuance: Grading permits may not be issued by the Town until the Town Council has approved the final plat or development plan and the necessary assurances have been posted. A copy of the permit and approved plan shall be kept in a conspicuous and accessible location on the site.

b. Expiration: A grading permit shall be null and void if the authorized work has not been completed within twelve (12) months of permit issuance.

c. At the discretion of the Town, a preliminary Type 2 Grading Permit may be issued prior to final plat or development plan approval by the Town Council for the purposes of clearing, brushing and grubbing only, provided:

i. The Town staff has reviewed the grading plans and determined that said plan is viable; and

ii. The preliminary grading will occur in accordance with the approved preliminary grading plan and no clearing, brushing or grubbing will take place within twenty-five (25) feet from the boundaries of the future development envelope, exclusive of approved entry points; and

iii. Restoration assurances for the preliminary grading are collected prior to issuance of the preliminary permit; and

iv. The Town has received a copy of an archaeological clearance letter; and

v. Town staff members responsible for signing/approving the preliminary grading permit concur with issuance of the preliminary grading permit.

5. Permit Extension and Reapplication

a. Upon written request by the permit holder, the Town may grant a single extension of up to one hundred eighty (180) days. Requests must be submitted prior to the date of expiration. Consideration will be given to extension requests when quantifiable evidence is submitted.

b. A reapplication (after the one (1) time extension) for a grading permit shall be treated as a new application and additional conditions may be imposed as a result.

6. Changes to Type 2 Grading Permits

a. Hazardous conditions: If drainage problems, flood hazards or other hazards occur, the Town may require that engineering modifications be submitted in a report and that the grading design be modified.

b. Non-hazardous conditions: If unanticipated non-hazardous conditions are encountered during grading, which are beyond the scope of the grading permit, the permit holder may request engineering modifications in a report to be reviewed and approved by the Town.

7. General Inspections

a. All grading which required a Type 2 Grading Permit will be inspected by the Town. The grading permit applicant (or applicant’s representative) shall request that a representative of the Town inspect or be on site for the following:

i. Limits of grading and temporary fencing to protect natural areas; and

ii. Rough grading to be done prior to construction of the project. The inspector will verify grading to be within the limitations of approved plans. Certification of the building pad elevation by a registered land surveyor or civil engineer shall be presented to the inspector at this time; and

iii. Aggregate base course (ABC) material prior to paving and during compaction testing of the same; and

iv. Paving of public and private streets and compaction/material testing of the same; and

v. Open water line (and other utilities as specified by the Town) trenches and backfill materials prior to burial of trench; and

vi. Any grading activity in addition to what was approved on the grading plans; and

vii. Stockpiling areas on or off site; and

viii. Any specific grading activities or areas identified by the Town at the pre-construction meeting (held between staff and the contractor at the time of permit issuance) or during the course of construction activities; and

ix. Any on-site and off-site compaction testing or asphalt coring.

b. The permit holder shall provide the Town with an inspection request notification at least twenty-four (24) (preferably forty-eight (48)) hours prior to (or as specified on the grading permit) the time the inspection is needed.

c. The Town will provide an inspector within two (2) working days from the time the inspection request is received, with the exception of the final grading inspection done in conjunction with the release of assurance.

d. The final grading inspection shall be done with the release of assurances for civil work or finalization of the project. Final grading inspections may be warranted at an earlier point in the project process.

e. If the Town finds site conditions are not as stated in the approved grading permit conditions or approved grading plan, the Town may order work authorized by the grading permit to stop pursuant to subsection F.3 of this section.

f. Whenever grading work requiring Town inspection is concealed by additional work without first having been inspected, the Town may require, by written notice, that such work is:

i. Exposed, for inspection by the Town, at no cost to the Town; or

ii. Certified by the project civil engineer as being in conformance with approved plans and applicable regulations.

8. Final Grading Inspection

a. All required grading work should be completed in accordance with the grading permit prior to final grading inspection by the Town and full release of assurances or final release of the project.

b. Where conditions of a grading permit or grading plan include the establishment of vegetation or other final site grading work that extends beyond the expiration of the grading permit, the Town will make inspections per subsection C.7 of this section.

9. Maintenance of Revegetation

The maintenance of revegetated areas shall be in accordance with Section 27.6.L of this Code.

((O)17-05 , 2017; 6/11 supplement, 2011.)

D. Type 3 Grading Permit

1. Permit Application and Review

a. Upon issuance of a grading permit, a copy of the permit and approved plan shall be kept in a conspicuous and accessible location on the site.

b. A grading permit shall be null and void if the authorized work has not been completed within 180 days of permit issuance.

2. Permit Extension and Reapplication

a. Upon written request by the permit holder, the Town may grant a single extension up to one hundred eighty (180) days. Requests must be submitted prior to the date of expiration. Consideration will be given to extension requests when quantifiable evidence is submitted.

b. A reapplication for a grading permit shall be treated as a new application and additional conditions may be imposed as a result.

3. Permit Inspections

a. Prior to commencement of grading (or stockpiling), the Town shall inspect the site where said activity is to occur. The applicant shall clearly identify areas to be graded (or earthen material stockpiled). Vegetation to be salvaged shall be identified.

b. During construction/grading activity, the Town may occasionally inspect to ensure erosion/drainage control measures are in place, functional and maintained.

c. Upon completion of grading activity, the Town shall inspect to verify that all prescriptive requirements of the approved grading plan and permit have been satisfied. The Town will do a similar inspection upon removal of stockpiled material.

E. Exceptions and Interpretation Review

1. Exceptions

a. Scope: An exception from a provision of this section may be applied for, and may be granted by the Town Council, when the intent of this section can be met by other means and when strict application of these provisions could require unnecessary disturbance to the land, would create a hazard to adjacent property, would be materially detrimental to persons residing in the vicinity or would be materially detrimental to the public welfare in general.

b. Findings: Applications for Grading Exceptions shall address each of the below findings. The Planning and Zoning Commission will review and provide recommendation to the Town Council on all applications for grading exceptions at scheduled public hearings. When reviewing requests for grading exceptions, the Planning and Zoning Commission and Town Council shall consider each of the findings and address them in their deliberations. To grant an exception the Town Council shall find that the request addresses the concerns of each finding and is in substantial compliance with the findings as a whole.

i. The exception meets the intent and purposes of this code;

ii. Granting the exception constitutes the minimum to allow the proposed improvement;

iii. The conditions on the property are unique such that strict adherence to this section would cause an unnecessary hardship which substantially limits the preservation and enjoyment of property rights;

iv. The exception imposes conditions so as not to constitute a granting of special privilege; and

v. That the exception will not be materially detrimental to persons residing in the vicinity, to adjacent property, to the neighborhood or the public welfare in general.

c. Conditions: At the Town Council’s discretion, conditions may be imposed on the exception that will:

i. Assure that the intent and purpose of this chapter are met; and

ii. Provide adequately for the protection of surrounding property owners and residents; and

iii. Provide mitigation of scarring and restore the site to a natural appearance in terms of contours and vegetation, where possible.

d. Application: The request for exceptions shall be made on a form provided by the Town. Hearing fees shall be required.

e. Review and notice: The Planning and Zoning Commission will hold a duly noticed public hearing on the exception request and notice of the hearing will be mailed to all property owners within six hundred (600) feet of the grading site prior to such hearing.

f. If any portion of a subdivision falls within the required notification area, the entire subdivision (as defined by subdivision name or unit number) may be required to be notified if the impacts of the proposal would have impacts affecting the entire subdivision or neighborhood, as determined by the Planning and Zoning Administrator.

g. The decision of the Town Council on a grading exception shall be final.

2. Requests for Interpretation

a. Scope: Upon request, the appropriate Town representative shall render an interpretation of the regulations of this chapter. Should any person be aggrieved of said interpretation, a request for review of that interpretation may be made to the Planning and Zoning Commission. At a subsequent meeting, the Planning and Zoning Commission shall review the interpretation in the matter and render its decision, either to uphold the interpretation or to make a different interpretation of this chapter.

b. The request for review of an interpretation shall cite:

i. The disputed interpretation;

ii. The words alleged to have been misinterpreted.

c. Application: The request shall be made on a form provided by the Planning and Zoning Department and will be heard within sixty (60) days. Hearing fees shall be required.

d. Review and notice: The Planning and Zoning Commission will hold a public hearing on the interpretation issue and notice of the hearing will be mailed to the applicant and all property owners within six hundred (600) feet of the grading site prior to such hearing.

((O)17-05 , 2017; (O)12-11 , 2012; 6/11 supplement, 2011.)

F. Grading Permit Authorization, Liability, Enforcement and Penalties

1. Authorization to Proceed with Work

a. The issuance of a grading permit shall constitute an authorization to do only that work that is described or illustrated on the application for the permit, or on the site plans and specifications as approved by the Town. The issuance of a permit, or the approval of drawings and specifications shall not be construed to be a permit for, nor the approval of, any violation of, or deviation from, the provisions of this or any other Town ordinance, code or regulation. A permit issued shall become invalid if, in the work completed, a violation of this Section or deviation there from ensued. When such violation occurs, the permit shall be deemed to be canceled and the ground shall be restored to the condition it was in prior to start of the grading work.

b. The issuance of a permit, based upon drawings and specifications, shall not prevent the Town from thereafter requiring the correction of errors in said drawings and specifications, or from stopping unlawful construction operations being carried on thereunder.

c. The Town may require grading operations and project designs be modified if weather-generated problems occur that were not considered at the time the grading permit was issued.

2. Liability

Neither the issuance of a permit under the provisions of this ordinance, nor the compliance with provisions hereof, or with any conditions imposed in the permit issued hereunder, shall relieve any person from responsibility for damage to other persons or property, nor impose any liability upon the Town for damage to other persons or property.

3. Enforcement

a. The enforcement of this Grading Ordinance and conditions of the grading permit shall be in accordance with this Section.

b. If the Town makes a determination that noncompliance with the conditions of the grading permit, or any condition imposed by rezoning, plat or plan approval exists, the Town may issue a stop-work order and/or citation. Further, the Town shall hold in abeyance, by written notice, any/all Town review of other submittals related to the subject project and the issuance of Town permits for any aspect of it until remedial actions have received the written approval of the Town.

4. Stop-Work Orders

a. Whenever the Town determines that grading does not comply with this ordinance or the grading permit conditions, or that the soil or conditions are not as stated on the permit, the Town may order the work stopped by written notice served on any person engaged in doing or causing such work to be done, and/or issue a citation.

b. Any such person shall immediately stop such work until written authorization is granted by the Town to proceed with the work.

5. Citations

If deemed necessary and appropriate, citations for grading violations may be issued. The Planning and Planning and Zoning Administrator will issue the citation. The Town Engineer shall co-sign citations issued for grading violations occurring within Town right-of-way.

6. Penalties

a. Failure to obtain a grading permit: Unless exempted by this ordinance, failure to obtain a grading permit prior to commencement of grading shall be a violation of this ordinance. However, the Town may issue an exception permit if the Town finds that an emergency existed that made it impossible first to obtain a permit. Notification must be provided to the town within seventy-two (72) hours of occurrence.

b. Violations: A violation of this ordinance may result in issuance by the Town of a stop-work order and/or a citation and penalties in accordance with paragraph 3 of this Section. Payment of fine shall not relieve any person from complying with the requirements of this ordinance.

c. Penalties: Failure to comply with the approved grading plan, conditions of the grading permit, and/or grading not in compliance with this ordinance shall cause immediate revocation of all permits. At the Town’s discretion, a permit may be issued for the purposes of getting the illegally graded site into compliance with the grading ordinance, for the purposes of re-establishing the grades approved on the grading plan, and for replacing and maintaining protected native plant materials or public property destroyed as a result of the illegal grading operation. New permits for continuing the project shall not be issued until the required fines are paid to the Town.