Fairfax Municipal Code Ch. 12.20 Excavations Generally

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

EXCAVATION. The cutting, grading, digging or removal of earth or natural materials in a manner as to change natural or existing terrain.

FILL. The placing, carrying or depositing of earth or natural materials in a manner as to change the natural or existing terrain.

OWNER. Any person who owns the fee simple title, equitable interest or easement rights to real property.

(Prior Code, § 12.20.010)

It is unlawful for any person to make or cause or permit to be made any excavation or fill in the town, except in accordance with a permit issued as specified in this chapter; provided that, no permit shall be required to fill or excavate:

(A) By any public utility;

(B) Where less than two cubic yards of earth or material are moved; and

(C) Where grading for a building site is being made for the purpose of immediate construction of a building or improvements thereon, for which a building permit has been issued, if, in the opinion of the Building Inspector, evidenced by a statement on the aforementioned building permit, no hazard to property rights of the town or of adjoining land owners will be encountered or created by the work of excavation.

(Prior Code, § 12.20.020)

(A) An application for a permit to excavate or fill must be signed by the owner of the land upon which the fill or excavation is to be made or by his or her authorized agent, and filed in duplicate with the Town Clerk, who shall forthwith deliver one copy to the Superintendent of Streets for action by him or her or his or her deputy.

(B) The application, in addition to any information required by the Superintendent of Streets, shall set forth the following:

(1) The name, identity and address of the owner;

(2) The name, identity and address of the contractor or other person who is to perform the work of excavation or fill;

(3) A description and the location of the property involved;

(4) A statement of the exact nature of the proposed excavation or fill, indicating the slope of the sides and the level of the finished surface, the type of earth or material to be moved, the method, manner and equipment to be used in the accomplishment of the work and the disposition of material of the site;

(5) A proposed time of commencement of work after issuance of the permit, and estimated date of completion;

(6) An agreement on the part of the applicant, to be effective for a period of two years from and after the date of completion of the excavation or fill, to indemnify the town and hold the town harmless against all damages which may arise out of or by virtue of any such excavation or fill, including any damage to public streets or equipment, and containing a covenant that the applicant will forthwith remove from and clean any public streets of any dirt, rock, debris or other material from any excavation or fill that may be carried down by rainwater or other means to and upon public streets. In the event of the sale of the property involved, during the period of the aforementioned contract, the applicant shall require the new owner to subscribe to all obligations under the contract;

(7) A description of all easement rights in the land to be excavated or filled, with names and addresses of each owner of any rights in and to the land, and proof of service upon each of the owners of notice of pendency of application for excavation or fill;

(8) An agreement to indemnify and hold harmless every owner of any interest in land to be excavated or filled against any loss or damage by reason of the excavation or fill, by completion bond or other security or agreement satisfactory to the owners of other interests or to the Superintendent of Streets; and (Upon demand of the owner of any interest in property affected or upon the demand of the Superintendent of Streets, a completion bond, in an amount to be fixed by the Superintendent of Streets, shall be made a part of the application.)

(9) An agreement that if the excavation or fill is not completed in accordance with plans and specifications therefor and the permit issued, then the work may be completed by the Superintendent of Streets and the cost thereof to be paid by owner applicant and until paid the costs shall constitute a lien upon the real property of the applicant.

(Prior Code, § 12.20.030)

At the time of filing the application for a permit to excavate or fill, the applicant shall pay a filing fee in accordance with the schedule of fees fixed and adopted from time to time by resolution of the Town Council.

(Prior Code, § 12.20.040) (Ord. 443, passed - -1978)

Within ten days after the filing of the application for a permit to excavate or fill, the Superintendent of Streets shall cause an investigation to be made, and shall either issue the permit upon the conditions expressed in the permit as he or she deems necessary to comply with all the provisions of this chapter, or deny the application.

(Prior Code, § 12.20.050)

(A) Before final action is taken by the Superintendent of Streets on any application for a permit to excavate or fill, he or she shall consider all pertinent matters concerning the proposed excavation or fill and its possible effect upon the public health, safety and general welfare, and shall exercise a reasonable and sound discretion in the premises.

(B) The application shall be denied if it appears to the Superintendent of Streets from his or her investigation that the excavation or fill would:

(1) Unlawfully remove the lateral or subjacent support of the adjacent land;

(2) Result in a dangerous topographic condition;

(3) Cause seepage or slides;

(4) Improperly divert the flow of drainage waters;

(5) Create a nuisance; or

(6) Otherwise in any manner endanger the health, safety or property of any other person, despite all precautions which the applicant might be ready, willing and able to take.

(Prior Code, § 12.20.060)

(A) Whenever an application for a permit to excavate or fill appears to the Superintendent of Streets to require the services of the Town Engineer for technical help and advice, the Superintendent of Streets may consult with the Town Engineer and require the Town Engineer to make inspections of the work in progress.

(B) Prior to the issuance of the permit, the Superintendent of Streets shall notify the applicant of the necessity for engineering inspection, and the applicant shall pay, prior to starting work, reasonable engineering fees in accordance with the schedule therefor fixed and adopted from time to time by resolution of the Town Council, and to be determined in advance of the issuance of the permit.

(Prior Code, § 12.20.070) (Ord. 443, passed - -1978)

(A) Notwithstanding any of the provisions of this chapter, no permit to excavate or fill shall be granted, where the application shows the excavation or fill to involve the movement of over 100 cubic yards of material, unless and until approval of the application is given by action of the Planning Commission of the town.

(B) The application, upon receipt, shall be referred to the Planning Commission for investigation and action, and before action of approval may be given, the Planning Commission must find:

(1) The health, welfare and safety of the public will not be adversely affected;

(2) Adjacent properties are adequately protected by project investigation and design from geologic hazards as a result of the work;

(3) Adjacent properties are adequately protected by project design from drainage and erosion problems as a result of the work;

(4) The amount of excavation or fill proposed is not more than is required to allow the property owner substantial use of his or her property;

(5) The visual and scenic enjoyment of the area by others will not be adversely affected by the project more than is necessary;

(6) Natural landscaping will not be removed by the project more than is necessary;

(7) The time of year during which construction will take place is such that work will not result in excessive siltation from storm runoff nor prolonged exposure of unstable excavated slopes.

(Prior Code, § 12.20.080)

The Superintendent of Streets shall forthwith notify the applicant of his or her action on the application and, if the applicant is dissatisfied therewith, he or she may appeal to the Town Council by filing a written notice of appeal with the Clerk within 30 days after notice from the Superintendent of Streets, and shall, at the same time, deliver to the Town Clerk a list of the names and addresses of all owners of property within a 300-foot radius from the exterior boundaries of the proposed excavation or fill.

(Prior Code, § 12.20.090)

The appeal from the ruling on the application by the Superintendent of Streets shall be heard at the first succeeding regular meeting of the Town Council held more than 20 days after filing of the appeal. The Town Clerk shall mail notice of the hearing, at least ten days prior thereto, to all property owners within the radius of 300 feet of proposed boundaries of the excavation or fill. The hearing on the appeal may be continued from time to time. At the conclusion of the hearing, the Town Council may deny the application or issue a permit therefor under the terms and conditions as it deems necessary to conform to the provisions of this chapter. The action of the Town Council shall be final and conclusive and no similar application may be filed by the applicant for the same property for a period of 12 months.

(Prior Code, § 12.20.100)

(A) The Superintendent of Streets may require, as a condition of the granting of any permit under this chapter, that the applicant deposit with the Town Clerk a completion and maintenance bond, in an amount to be fixed by the Superintendent of Streets, not exceeding the sum of $50,000, inuring to the benefit of the town and of the general public, guaranteeing that the applicant will faithfully perform all of the conditions and requirements specified in the permit, and will maintain the completed work in good condition for a period of two years from date of completion.

(B) The bond shall be executed by sureties approved by the Town Clerk as being sufficient in number and in financial responsibility. The Superintendent of Streets may also require, as a condition to the granting of any such permit, that the applicant deposit with the Town Clerk a certificate of a responsible insurance company, showing that the applicant is insured in an amount not less than a sum certain, to be fixed by the Superintendent of Streets, not to exceed $100,000, against any loss or damage to persons or property arising directly or indirectly from the operations of the applicant or any person acting in his or her behalf in carrying on any operation connected directly or indirectly with the making of the excavation or fill for which the permit is issued.

(Prior Code, § 12.20.110)

Any person to whom a permit to excavate is issued shall also comply with the following requirements.

(A) The bottom of an excavation shall not be made lower than the level specified in the permit to excavate.

(B) If, in the opinion of the Superintendent of Streets, any excavation will create or aggravate a dangerous condition if left open, the excavation shall be enclosed by a fence sufficiently high, tight and strong to eliminate the dangerous condition.

(C) Any rock, earth or other material which may be dropped or deposited on any public street or place from any vehicle transporting such materials from any such excavation shall be immediately removed in a manner and to an extent satisfactory to the Superintendent of Streets, at the expense of the person to whom the permit to excavate was issued.

(D) The applicant shall agree to save, indemnify and hold harmless the town and its agents against all liabilities, judgments, costs and expenses which may in any wise accrue against the town in consequence of the granting of the permit.

(Prior Code, § 12.20.120)

(A) In order to minimize the danger of slides onto or from adjacent lands, the Superintendent of Streets may specify in the permit the permissible angle of slope of the sides of the excavation or fill. No side of the excavation or fill may be made steeper at any point than the angle so specified in the permit, unless supported by a substantial, permanent retaining wall of sufficient strength to permanently support the sides of the excavation or fill and constructed in accordance with a permit to do so, as provided in this chapter.

(B) The retaining wall shall be of concrete, brick, stone or other material, not subject to rapid deterioration, and shall extend the full height and length of each side of the excavation or fill which is at any point made steeper in slope than the angle specified in the permit to excavate or fill.

(C) (1) If the applicant desires to make any side of the excavation or fill steeper than the angle specified in the permit, he or she shall so state in a supplemental application, and shall file therewith, in duplicate, detailed plans and specifications for the retaining wall.

(2) One copy of the plans and specifications shall be forthwith delivered to the Building Inspector, who shall examine the same and shall promptly report to the Superintendent of Streets whether the retaining wall, if built according to the plans and specifications, will satisfy the requirements of the Building Code of the town and the requirements of this section.

(D) Upon the approval of the plans and specifications by the Building Inspector and the issuance of a building permit therefor, the Superintendent of Streets shall include in the permit to excavate or fill, or in a supplemental permit to excavate or fill, a provision allowing the sides of the excavation or fill to be made steeper than the angle of slope specified therein, if supported by a retaining wall constructed according to the plans and specifications.

(Prior Code, § 12.20.130)

(A) (1) Any permit granted under this chapter may be revoked or suspended by the Superintendent of Streets, for any reason for which the issuance of the permit might lawfully be denied, or for any failure to comply with any of the terms of this chapter or of the permit.

(2) Revocation of the permit shall be made only upon a hearing granted to the person to whom the permit was issued, held before the Superintendent of Streets.

(3) Written notice, deposited in the United States mail at least five days before the date set for hearing, addressed to the person at his or her business or residence address as stated in his or her application for the permit, shall be sufficient notice.

(B) In the event of the revocation or suspension, the applicant may appeal to the Town Council in the manner prescribed in § 12.20.050.

(C) If, in the opinion of the Superintendent of Streets, the public health, safety or welfare requires it, the Superintendent of Streets may suspend any permit granted under this chapter, pending the hearing for the revocation of the permit.

(D) The revocation or suspension shall be in addition to any other penalties provided in this code.

(Prior Code, § 12.20.140)

(A) In the event that any excavation or fill for which a permit has been granted under this chapter is not commenced within six months from the date of issuance of the permit, or in the event that work on the excavation or fill is, at any time, abandoned for a period of six consecutive months, the permit shall automatically terminate, without notice, and no further excavation or fill shall be made; however, the conditions expressed in the permit shall remain binding upon the person to whom the permit was issued, and all legal and equitable remedies shall be available against him or her for any breach thereof.

(B) (1) When the amount of material excavated or filled equals the number of cubic yards authorized by the permit, no further excavation or fill may be made until a new or supplemental permit has been issued.

(2) An application for a supplemental permit to continue or enlarge the excavation or fill may be filed, setting forth all the information required in the original application.

(3) If the supplemental permit is issued, the applicant shall pay an additional fee in accordance with the schedule of rates referred to in § 12.20.040.

(Prior Code, § 12.20.150)

Nothing in this chapter, or in any permit granted under this chapter or Chapter 12.24, shall be deemed to authorize the doing or the commission of any act contrary to any term or provision of any other provision of this code.

(Prior Code, § 12.20.160)

The Superintendent of Streets may appoint the Building Inspector or other competent persons to serve as his or her deputies or assistants to assist in carrying out the provisions of this chapter.

(Prior Code, § 12.20.170)