§ 26-191. Regulation of fill, excavation and illegal dumping.

(a)

Statutory authorization and purpose.

(1)

Statutory authorization. The mayor and board of aldermen are empowered by MCA 1972, §§ 21-19-1 and 17-1-3, as amended, to enact regulations to secure the general public health, safety and welfare.

(2)

Purpose. It is the purpose of this section to promote the public health, safety and general welfare and to prevent or alleviate problems due to fill, excavation and illegal dumping by provisions designed to:

a.

Regulate the filling of lots, parcels or portions thereof;

b.

Prohibit illegal dumping on lots, parcels or portions thereof;

c.

Ensure proper fill quality;

d.

Reduce or eliminate increased stormwater runoff;

e.

Prevent or alleviate beautification problems associated with improper fill and/or illegal dumping;

f.

Prevent potential construction and development problems due to improper fill and/or illegal dumping;

g.

Prevent or alleviate drainage problems occurring because of unregulated dumping and filling of land within the city; and

h.

Ensure that filling of land is in accordance with sound environmental, construction and engineering principles.

(b)

Definitions. The following words and phrases, when used in this section shall have the meanings respectively ascribed to them:

Construction-fill means a lot, parcel, or a portion of a lot or parcel which is to be filled and on which construction on such lot or parcel is contemplated either immediately as evidenced by the simultaneous application for a building permit or application for building permit is contemplated within one (1) year.

Fill means the act of raising the level of land by the use of any material for purposes of elevating low places or for construction thereon.

Fill quality means the composition of fill material used to make the fill.

Fill-only means a lot, parcel, or a portion of a lot or parcel which is to be filled and on which no building is contemplated to be erected within one (1) year.

Illegal dumping means the depositing of any material on land owned by another, such deposits being an unauthorized fill or as otherwise defined in the "Tupelo Anti-Litter Ordinance."

Stormwater retention ordinance means the "Tupelo Stormwater Retention and Detention Ordinance."

Unauthorized fill means a fill undertaken without a fill permit or a building permit.

(c)

General provisions.

(1)

Jurisdiction. This section shall apply to all areas within the corporate boundaries of the city as prescribed by the ordinance of the city. Should these corporate boundaries be expanded, this article shall apply immediately to any annexed area. The city may, in its discretion, adopt a temporary land use plan for any area so annexed to provide for the establishment of the zones to which this section shall apply.

(2)

Relationship to zoning and other regulations.

a.

The regulations contained in this article are supplemental to any other applicable federal, state or local regulations which may be construed as pertaining to the development of real property, including buildings, structures, and improvements thereon. This specifically includes the zoning ordinance and all building and other construction codes adopted by the city.

b.

Words and phrases contained in this article not specifically defined are to be construed in the context of such other regulation. In the event of any conflict between these regulations and other such regulations, the more stringent rule shall apply.

c.

All references to zones, with regard to permitted uses or any other regulations in this article, refer to the zones established by the zoning ordinance, as amended, and the zoning map, as amended and on file at city hall. Should any zoning classifications be added or changed, the regulations of the most similar existing classifications, as determined by the board of aldermen upon consideration of the recommendations of the planning committee, shall apply until such time as this article may be amended.

(d)

Administration; designation of administrator. The department of planning and community development is hereby appointed to administer, implement and enforce the provisions of this section. Any references to the "administrator" shall refer to this department and its employees, individually and collectively. Specific job duties with respect to this article may be assigned by the director of the department. Cooperation with the department of public works as to application of the stormwater retention ordinance shall be effectuated.

(e)

Provisions for regulation.

(1)

Fill quality specification.

a.

Fill-only.

1.

Dirt.

2.

Concrete. Nothing larger than what will pass through an eighteen-inch opening and no longer than eighteen (18) inches in any direction.

3.

Asphalt. Nothing larger than what will pass through an eighteen-inch opening and no longer than eighteen (18) inches in any direction.

4.

Brick, stone and rock. Nothing larger than what will pass through an eighteen-inch opening and no longer than eighteen (18) inches in any direction.

5.

No rubbish or degradable material.

6.

Cover minimum of eighteen (18) inches permeable select borrow material only.

b.

Construction—Fill.

1.

Dirt.

2.

Concrete. Nothing larger than what will pass through an eight-inch opening and no longer than eight (8) inches in any direction.

3.

Asphalt. Nothing larger than what will pass through an eight-inch opening and no longer than eight (8) inches in any direction.

4.

Brick, stone and rock. Nothing larger than what will pass through an eight-inch opening and no longer than eight (8) inches in any direction.

5.

No rubbish or degradable material.

6.

Cover minimum of eighteen (18) inches of permeable select borrow material only.

(2)

Permit procedure.

a.

Fill-only. Where a fill is to be conducted when no building permit application is contemplated within one (1) year, the department of planning and development shall issue a permit, not to exceed twenty-five dollars ($25.00) in cost. It shall be the responsibility of the planning department to design the permit and administer its use. The permit at a minimum shall require of the permittee the following information:

1.

Elevation and area of fill area prior to fill.

2.

Elevation and area of fill area subsequent to fill.

3.

Elevation and area of unfilled area on that lot.

4.

Elevation and location of adjoining lots and parcels.

5.

Percentage composition of fill material.

6.

Method of compaction.

b.

Construction-fill. Where a fill is to be conducted on a site intended for construction within one (1) year or when a building permit is simultaneously applied for, the department of planning and community development shall require of the permittee the following information:

1.

Elevation and area of fill area prior to fill.

2.

Elevation and area of fill area subsequent to fill.

3.

Elevation and area of unfilled area on that lot.

4.

Elevation and location of adjoining lots and parcels.

5.

Percentage composition of fill material.

6.

Method of compaction.

c.

No fill shall be conducted without obtaining a building permit with the requisite information listed above. No building permit shall be issued which does not:

1.

Meet the minimum fill quality specifications for the category of the fill to be conducted.

2.

Has not met stormwater retention/detention requirements as outlined in section 26-191(e)(3).

d.

The department of planning and community development will make a final inspection of the fill when completed. Failure of the permittee to meet the requirements of this section shall result in penalties outlined in section 26-191(e)(6).

(3)

Interaction with stormwater retention ordinance.

a.

All fill-only permits shall be reviewed under the stormwater retention ordinance by the department of public works or its designee, and no fill permit shall be issued prior to this review. Upon review, should compliance with the stormwater retention ordinance be required, no fill permit shall be issued prior to stormwater retention/detention site plan being approved.

b.

Construction-fill as a part of the building permit application shall be reviewed under the stormwater retention ordinance as follows:

1.

If property is in a residential zone and elevation after fill exceeds elevation of any adjoining lot or parcel, the department of public works, or its designee, shall review the permit under the stormwater retention ordinance, and no building permit shall be issued prior to this review. Upon review, compliance with the stormwater retention ordinance shall be required, and no fill permit shall be issued prior to the stormwater retention/detention site plan being approved.

2.

If property is in any zone other than residential and if elevation after fill exceeds elevation of any adjoining lot or parcel, the provisions of the stormwater retention ordinance and its discretionary review provisions shall apply.

(4)

Compliance by city departments.

a.

All city departments desiring to fill any lot or property within the city and not owned by the city shall fully comply with this section.

b.

Any city department wishing to fill property owned by the city is exempt from compliance with the fill ordinance.

(5)

Unauthorized fill or illegal dumping.

a.

Should unauthorized fill or illegal dumping occur on property owned by a city resident and without that resident's permission, notice must be given by the residence to the police department and/or the planning department within four (4) days of the unauthorized fill or illegal dumping.

b.

Where unauthorized fill or illegal dumping occurs on property owned by a nonresident property owner, the nonresident property owner must give notice to the planning department and/or the police department within fourteen (14) days.

c.

The planning department and the police department will keep and maintain records of any notices received by city residents or nonresident property owners concerning authorized fill or illegal dumping on property.

d.

Clean up costs:

1.

If notice is not given by the land owner, the land owner must bear all the cost of clean up.

2.

If notice is given by the land owner, then the cost of clean up will be reviewed by the board of adjustments with the approval of the board of alderman as to any particulars of clean up cost or conditions.

(6)

Penalties.

a.

The penalties for an unpermitted fill shall be a one thousand dollar ($1,000.00) fine for each day that fill is conducted without a permit.

b.

The penalty for use of improper fill material will be the withholding of final inspection, a fine of up to one thousand dollars ($1,000.00) and clean up costs, as performed by the department of public works.

c.

The penalty for an unauthorized fill or illegal dumping on someone else's property shall be a fine of up to one thousand dollars ($1,000.00) and the cost of clean up within fourteen (14) days. Each additional day after the fourteenth day will be considered a separate violation and will be subject to an additional fine of up to one thousand dollars ($1,000.00) for each such violation.

(7)

Appeals process.

a.

Should a fill permit or building permit be rejected or fail to issue because of failure to meet fill specifications or failure to comply with the stormwater retention ordinance and review, the aggrieved party may apply to the board of adjustments, and any recommendation approved by the board of adjustments shall require the approval of the board of aldermen.

b.

Other violations of this section shall undertake city court review.

(Ord. of 4-21-92, §§ 1—5)