Ordinance No. 6,938Published In: THE BAYTOWN SUN
Wednesday, March 2, 1994 940224 -3
Thursday, March 3, 1994 ORDINANCE NO. 6938
• AN ORDINANCE AMENDING CHAPTER 17 "MISCELLANEOUS
PROVISIONS AND OFFENSES," OF THE CODE OF ORDINANCES, CITY
OF BAYTOWN, TEXAS, BY REPEALING SECTION 17 -15 "FENCING OF
CERTAIN MAN -MADE PITS, HOLES OR OTHER MAN -MADE
EXCAVATIONS," AND ADDING SECTIONS 17 -24 THROUGH 17 -35;
PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS
CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE
DATE THEREOF.
Section 1: That Chapter 17 "Miscellaneous Provisions and
Offenses," of the Code of ordinances, City of Baytown, Texas, is
hereby amended by repealing Section 17 -15 "Fencing of certain
man -made pits, holes or other man -made excavations."
Section 2: That Chapter 17 "Miscellaneous Provisions and
Offenses," of the Code of Ordinances, City of Baytown, Texas, is
hereby amended by adding Sections 17 -24 through 17 -35 to read as
follows:
ARTICLE I. Iii GENERAL
Sec. 17 -24. Definitions.
For the purposes of this article, the following words and
terms shall have the meanings ascribed to them respectively:
(a) Approved fill. Only non - contaminated, chemically inert
materials such as rock, concrete, dirt, brick, and other
natural or man -made inert solid materials qualifying as
Class 3 waste materials under the Texas Natural Resource
Conservation Commission waste classification system, may
be used for fill. Materials that may create a danger,
including, but not limited to, broken glass, tires,
asphalt roofing, combustible materials, materials
containing asbestos, and putrescible waste, may not be
used as fill.
(b) Class 3 waste materials. Inert and essentially insoluble
industrial solid waste, usually including, but not
limited to, materials such as rock, brick, glass, dirt,
and certain plastics and rubber, etc., that are not
readily decomposable.
(c) Excavations. Any act by which soil, earth, clay, sand,
gravel, rock, loam, caliche, dirt, humus or any other
similar matter is dug, cut into, quarried, uncovered,
removed, displaced, relocated or bulldozed over five (5)
feet in depth in the earth.
• (d) Fill. Material used for raising the level or elevation
of areas after the completion of the excavation as
permitted herein.
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• (e) Restoration. Conversion of property after excavation is
completed or deemed completed to (1) a usable condition
and grade level by filling the excavation with approved
fill material or (2) a condition for recreation or
detention purposes.
(f) Soil. Any earth, sand, clay, loan, caliche, gravel,
humus, rock, dirt or any other matter in or upon the
ground, without regard to the presence or absence therein
of minerals or other organic matter.
Sec. 17 -25. Permit Required; Exceptions.
(a) It shall be unlawful and a violation of this article for
any person acting for himself or acting as an agent, employee,
independent contractor or servant of any other person to
commence an excavation, to expand an existing excavation
within the city, or to work upon or assist in any way in the
execution or operation of any such excavation required to be
permitted, without an excavation permit having been issued by
the authority of the city council in accordance with the terms
of this article.
(b) Nothing in this article shall be construed to affect or
apply to any person engaged in normal agricultural,
industrial, horticultural, cemeterial or residential enjoyment
and use of property, or to a ditch created for drainage or
irrigation purposes. The provisions of this article shall not
apply to nor affect a person in excavating to install,
construct or complete a structure, building or facility of any
kind when the plans and specifications for such objective have
been submitted and approved by the department of engineering
of the city or for which a permit has been issued by the
inspection section of the department of engineering; provided,
that the progress on the facility or project is not delayed
for a period of more than two (2) weeks, excepting delays
attributable to acts of nature, and further providing, that
such excavation created is not of a permanent nature and will
not be left open and uncovered on the completion of the
project without authorization of such permit. The provisions
of this article shall not apply to nor affect the excavation
operations of 1) private carrier and common carrier or
gathering pipeline operators ( "pipeline carriers ") in the
laying, constructing, maintaining, operating, replacing,
repairing and removing of pipelines used for the
transportation of oil, gas, water, petroleum products or any
other liquids, gases, hydrocarbons or other substances that
can be transported through a pipeline (and equipment
incidental and ancillary to such pipelines) and 2) private
utility concerns constructing facilities by virtue of a
franchise or a special permit issued by the city; provided,
• that the progress on the private utility project or facility
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• is not delayed for a period of more than two (2) weeks,
excepting delays attributable to acts of nature, and further
providing, that such excavation created is not of a permanent
nature and will not be left open and uncovered on the
completion of the facility or project.
Sec. 17 -26. Application for a Permit -- Generally.
(a) Permits required by this article shall be issued only
after an application, in the form of an affidavit, is executed
in duplicate and presented to the inspection section of the
department of engineering, which application shall be referred
to the city engineer for review, consideration and
recommendation.
(b) Simultaneously, with the filing of the application, the
applicant shall file with the city a bond executed by the
applicant and by a good and sufficient corporate surety
company, incorporated under the laws of the State of Texas, or
otherwise authorized to do business in the State of Texas and
having a fully paid -up capital stock of at least one hundred
thousand dollars, which said bond shall be at least
Twenty -five Thousand Dollars ($25,000.00) and up to an amount
deemed necessary and sufficient by the city engineer based
upon the size, depth, and dimensions of the proposed
excavation to restore the property as required herein,
conditioned that the principal obligor, if granted a permit,
will excavate and restore land within the corporate limits of
the city in strict accordance with the terms of this article
and will pay to the city any and all damages, losses, or
liabilities that may result or accrue from or because of the
making, existence, or manner of guarding, constructing, or
restoring such excavation, will pay to the city as minimum
liquidated damages the sum of Fifty Dollars ($50.00) per day
for each day or part of day that an excavation project of said
obligor shall remain unrestored after excavation is complete
or deemed complete in excess of the number of days as allowed
pursuant to Section 17 -35(c) herein. The said bond shall
contain a provision that the parties recognize that the
damages to the city occasioned by the making or existence of
the excavation of land within the city in excess of the number
of days shown in the permit will in all probability be
difficult to ascertain and consequently that the amount agreed
upon is the minimum amount of damages which the city will
sustain in any event but that the city shall not be prevented
from proving and claiming an ascertainable amount in excess of
such minimum sum.
Such bond, while payable to the city, shall also inure to
the benefit of any person damaged or injured in any manner by
• the said principal obligor by reason of excavating the land
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• within the corporate limits of the city, except agents,
servants, or employees of said principal obligor.
The said bond shall contain a provision that it shall not
be exhausted until recovery of the full amount of same shall
be obtained.
(c) Each application for an excavation permit must include
all of the following information in detail before it can be
accepted by the department of engineering and before it can be
considered by the city engineer:
(1) The identity and residence address of the
applicant.
(2) The identity and residence address of the owner of
the land.
(3) The identity and residence address of the person,
firm, or corporation doing the actual excavating
work.
(4) The location and legal description of the land.
(5) A positive statement as to whether the land has
been platted.
(6) A positive statement that city, county, state and
school district ad valorem taxes have been paid and
are current concerning the land.
(7) The quantity in cubic yards of soil to be moved or
removed from the land.
(8) In the case of removal, the place to which the soil
is to be removed.
(9) The proposed date of completion of the soil removal
or moving.
(10) A positive statement that no buildings, residences
or structures are within two hundred (200) feet of
the proposed excavation.
(11) A positive statement that the proposed excavation
shall not block, incumber or close any public
street, way, alley or drainage system or disturb
the lateral support thereof.
(12) A positive statement that the proposed excavation
shall not be located nearer than three hundred
fifty (350) feet to any exterior property line
boundary of lands utilized for a public or
parochial school, a college, a university, a
hospital, a church, public building, a cemetery, or
a municipal park.
(13) A positive statement that the proposed excavation
is not and shall not be located in an area which
has on public record restrictions or covenants
prohibiting such a use of the property.
(14) The proposed slopes and lateral supports to be used
in the excavation shall be set forth.
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• (15) The present and proposed arrangements made for
surface water drainage.
(16) The safety precautions to be installed and
maintained at the site, such as fences around the
excavation, traffic - control devices and drainage
system to keep the excavation from collecting water
within it.
(17) A positive statement that the applicant will comply
with all City ordinances and state and federal laws
relating to the work to be done.
(18) Such other pertinent data as the department of
engineering may hereafter require.
(19) The identity and residence or business address of
each owner or occupant of any property within two
hundred (200) feet of the proposed excavation.
(20) A positive statement that the property will be
restored and detailed plans of such restoration.
(d) Whenever an application and a bond is filed, the city
engineer or his designee shall send written notice by
certified mail with return receipt requested to the each owner
or occupant of any property within two hundred (200) feet of
the proposed excavation. Such notice shall detail the site of
the proposed excavation and that the recipient of the notice
may within ten (10) days submit to the city engineer any
information he feels may assist the city engineer in making
his determination. Further, the same such notice shall be
published in the official newspaper of the City. All costs
associated with the notice provision herein shall be borne by
the applicant and shall be in addition to the application fee
as hereinafter described.
Sec. 17 -27. Same -- Factors to be Considered.
(a) In considering and reviewing an application for an
excavation permit the city engineer shall be guided by the
general purpose of orderly municipal planning, the prohibiting
of any condition or the doing of any act constituting or
creating a nuisance, health hazard or endangering the lives or
property of others. As aids in accomplishing these purposes,
the following points shall be considered by the city engineer
in reviewing applications for excavation permits; however,
such aids shall be not be exclusive in the city engineer's
consideration and ultimate recommendation:
(1) Soil and earth erosion by water and wind.
(2) Surface water drainage and water drainage facilities of
the excavation.
(3) Lateral supports of the excavation.
(4) Condition in which excavation is to be maintained and
safeguards to be taken to prohibit creating a nuisance,
• health hazard, attractiveness to children, and features
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• provided to dispense with the endangering of lives and
property of the public.
(5) Land values and uses in the area of the excavation.
(6) The manner and purpose for which the property is to be
restored.
(7) Such other factors as may bear or relate to the
coordinated, adjusted and harmonious physical development
of the city.
(b) In arriving at its ultimate recommendation, the city
engineer may attach such special conditions thereto as may be
reasonably necessary to attain the overall purpose of this
article.
(c) When the city engineer makes his determination regarding
the granting or denial of the permit, written notice of such
determination must be given via certified mail, return receipt
requested, to the applicant and each owner or occupant of any
property within two hundred (200) feet of the excavation.
Such notice shall state that any person within ten (10) days
from the recommendation to grant or deny the permit may appeal
to the city council for a public hearing regarding such grant
or denial by directing a letter to the city council addressed
to the office of the city clerk, at the city hall, setting
forth therein the date of the recommendation of the city
engineer and the reasons the person so appealing feels that he
has been or will be injured by the action from which he is
taking such appeal. The same such notice must also be
published in the official newspaper of the city. All costs
associated with the notice provision herein shall be borne by
the applicant and shall be in addition to the application fee
as hereinafter described.
Sec. 17 -28. Permits- -Fee, Duration, Form, and Assignment and
Restoration.
(a) On submission of an application for an excavation permit
to the department of engineering, a fee shall also be
submitted for the adequate administration, inspection,
regulation and enforcement of this article in an amount of Two
Hundred and Fifty Dollars ($250.00).
(b) All excavation permits shall be issued by the inspection
section of the department of engineering upon the
recommendation or at the direction of the city engineer.
(c) Each excavation permit shall provide for the restoration
of the property. The permit shall state the number of days
required to restore the premises after the completion of the
excavation work. Such excavation will be deemed complete if
all substantial excavation work has ceased for a period of two
41 (2) weeks, excluding any day in which weather or other
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• conditions, not under the control of the permittee, do not
allow excavation work for a period of at least seven (7) hours
between 7:00 A.M. and 6:00 P.M.
(d) Each excavation permit issued shall be issued for a
maximum period of one year, after which period the permit is
void and the person to whom the permit was issued must make a
new application for a new permit for each succeeding year or
portion of a year that an excavation is operated or
maintained.
(e) The excavation permit shall be in such form and numbered
as may be prescribed by the department of engineering and
shall contain any and all special conditions set forth in the
city engineer's recommendation.
(f) No excavation permit issued under the terms of this
article to any person shall ever be transferred, sold,
assigned or otherwise disposed of in any manner to any other
person without the written consent of the city council.
Sec. 17 -29. Appeals from Permit Denial or Granting to City
Council.
(a) In the event an applicant is refused an excavation
permit, he may, not later than ten (10) days from the date of
receiving notice of such refusal, appeal to the city council
for a public hearing on the refusal by directing a letter to
the city council setting forth therein the date of denial of
the excavation permit and the reasons the applicant feels he
has been wronged in being refused the permit.
(b) In the event the city engineer recommends that the permit
be granted, any person may, within ten (10) days of the
recommendation to grant the permit, appeal to the city council
for a public hearing regarding the granting of the permit by
directing a letter to the city council addressed to the office
of the city clerk, at the city hall, setting forth therein the
date of the recommendation of the city engineer and the
reasons the person so appealing feels that he has been or will
be injured by the action from which he is taking such appeal.
(c) Upon the filing of such appeal, the right to operate
under any such excavation permit shall be suspended until
final determination by the city council and then in accordance
with the final decision of the city council.
(d) The city council shall, upon receiving such notice of
appeal, direct the city clerk to place the appeal on the city
council's work agenda to be considered in the due order of
city business. The city clerk shall then notify the appellant
• as to the date and place where the city council will consider
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• the appeal and publish a notice one time in the official
newspaper at least five (5) days before the date when the city
council will consider the appeal.
(e) The city council on conducting the public hearing
regarding the appeal may, by majority vote of all of the
council, either grant or refuse to grant the permit. In the
event the permit is granted, the city engineer shall direct
the inspection section of the department of engineering to
issue the permit in accordance with the direction of the city
council.
Sec. 17 -30. Revocation of Permit.
Any excavation permit issued under this article where a
notice to cease operations thereunder is issued by an
inspection official may be revoked by the city engineer for:
(1) Violation of any condition of the excavation permit;
(2) Violation of any provision of this article or any other
applicable ordinance or law relating to excavations;
and /or
(3) The existence of any condition or the doing of any act
constituting or creating a nuisance or endangering the
lives or property of others.
Sec. 17 -31. Appeals From Permit Revocation.
Any person who has been issued an excavation permit who is
aggrieved by its revocation by the city engineer may appeal to
the city council by filing with the city clerk a written
notice thereof within five (5) days from the date of the
revocation of the excavation permit. The aggrieved person
shall be given a hearing before the city council, in due order
of business, after which the city council may modify or
overrule the city engineer's decision.
Written notice of the time and place of such hearing shall
be served upon the person to whom the permit was granted at
least three (3) days prior to the date set for such hearing.
Such notice shall also contain a brief statement of the
grounds to be relied upon for revoking such excavation permit.
Notice of the hearing maybe given by personal delivery thereof
to the person to be notified or by deposit in the United
States mail in a sealed envelope with postage prepaid,
addressed to such person to be notified at the address
appearing in his application. In the event any appeal is
taken from the decision of the city engineer, in the manner
prescribed above, all work shall be stopped at the excavation
while the appeal is pending.
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• Sec. 17 -32. Inspection - -Right of Entry of Department of
Engineering.
For the purposes of administering and enforcing this
article, employees of the inspection section of the department
of engineering shall have the right to enter into and upon any
lands within the city limits, in or upon which an excavation
exists or on any lands on which operations are being conducted
in creating an excavation, to examine and inspect such lands
and excavations, to determine whether the excavation or
restoration or the operations in creating an excavation or
restoring the same are in violation of this article and to
further determine whether an excavation permit has been
secured as is required in this article.
Sec. 17 -33. Violations -- Notice; Cessation of Operations;
Time Limitations for Correction of Violations;
Additional Inspection; Procedure upon Failure
to Remedy Violations; Penalty.
(a) If the personal inspection provided for above reveals
that the excavation is being operated or maintained in
violation of the excavation permit issued, the inspector shall
immediately give notice in writing to the person in charge at
the site of the excavation to cease operations, setting forth
therein the exact reason for the issuance of the notice.
(b) After issuance of the notice as provided for above, there
shall be no further operation of the excavation until the
violations complained of by the inspecting official have been
remedied. The operator shall have three (3) days from the
date of receipt of the complaint notice from the inspecting
official to remedy the violations complained of by the
inspector and to notify the inspection section of the
department of engineering of the city that the violations
complained of have been remedied and that the excavation is
ready for additional inspection.
(c) In the event an operator of an excavation fails to remedy
the violations complained of as provided, the inspecting
official shall notify the city engineer of the violations
discovered and request that the operator's excavation permit
be revoked. A continuation of work or operation of the
excavation, other than to remedy the violation complained of,
after written notice has been received by the operator to
cease the excavation operations shall constitute a violation
of this article.
(d) Any person, firm or corporation violating any of the
terms of this ordinance shall, upon conviction, be found
guilty of a misdemeanor and shall be fined an amount not to
exceed Two Thousand and No /100 Dollars ($2,000.00); and a
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. separate offense shall be deemed committed on each day during
or on which a violation occurs or continues.
Sec. 17 -34. Limitations on Locations of Excavations.
No excavation permit shall be issued for the commencing of
an excavation which is located nearer than two hundred (200)
feet of any residence, building or structure, without the
applicant having first secured written permission of the owner
thereof. No excavation permit shall be issued for the
commencing of an excavation which is located nearer than three
hundred fifty (350) feet to any exterior property line
boundary of lands utilized for a public or parochial school,
a college, a university, a hospital, a church, a public
building, a cemetery, a municipal park, or within an area
where there is on public record restrictions or covenants
prohibiting excavations.
The city council shall have the power and reserves the
authority to refuse any application for an excavation permit
at any particular location within the city limits, by reason
of such particular location and the character and value of the
permanent improvements already erected on or approximately
adjacent to the particular location in question, and the use
to which the land and surroundings are adopted for school,
college, university, hospital, park, civic purposes or for
health and safety reasons, or any of them, when in the city
engineer's opinion the excavating or operation of an
excavation on such particular location might constitute a
nuisance, be injurious to public health, a public hazard or a
disadvantage to the city in its planned growth, or to its
inhabitants as a whole, or to a substantial number of is
inhabitants or visitors as a group.
Sec. 17 -35. Certain Excavations Declared Nuisances- -
Requirements for Restoration.
(a) Any excavation, other than a man -made ditch created for
drainage or irrigation purposes, located within the city
limits, or hereafter created within the city limits, or within
five thousand (5,000) feet of the city limits shall and does
constitute a nuisance when maintained or permitted to exist by
a person in an unwholesome or nauseous condition, or in a
manner by which stagnant water accumulates, or in a manner in
which water collects where it is possible and probable
mosquitoes will breed, or in a condition where rats could
harbor, or in a manner and condition constituting a breeding
place for flies, or in a manner and condition where filth,
garbage, trash, debris and other discarded material
accumulates and is deposited, or is maintained or permitted to
exist in an unfenced, open condition, accessible to children
• and other members of the public, or is maintained and worked
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in such a manner as to disturb, effect or destroy the lateral
support of or block and impede traffic on any public street,
alley, road or way, or that is maintained or permitted to
exist in any condition which constitutes a possible and
probable medium of transmission of disease to or between human
beings, or to maintain or permit to exist any one or more of
the above - enumerated conditions. Any man -made pit, hole or
other excavation described as a nuisance in this section, must
be completely surrounded by a permanent, opaque fence, wall or
other solid structure not less than six (6) feet high which
extends downward to within three (3) inches of the ground, and
which shall test plumb and square throughout its length and at
all times. Fences required herein shall be constructed of
redwood, rough cedar, chain link with wood or metal slats,
brick, brick columns with any one of the above, heavy metal
with a baked enamel finish, or pressure- treated lumber.
Plywood and corrugated metal fences are prohibited. The City
may waive such fence, wail or other solid structure
surrounding such excavations on one or more sides if City is
satisfied that natural obstructions or barriers make such
unnecessary. Every opening in such fence or wall shall be
equipped with a self - closing and self - latching device designed
to keep, and capable of keeping, such doors or gates securely
closed and locked at all times when not in actual use. It is
further declared that any person in locating or maintaining
any excavation in violation of the provisions of this section
shall be subject to the penalty for the violation of this Code
and is hereby deemed to be maintained a nuisance. Nothing
herein shall in any way reduce the remedies which the city may
otherwise have to regulate, correct, abate or abolish any
nuisance within the city limits or within five thousand
(5,000) feet of the city limits.
(b) If restoring the property to a usable condition and grade
level by filling the excavation, only approved fill material
may be used. All approved fill material must be covered with
six (6) inches of top soil. Refills shall be properly tamped
down and any bracing shall be left in the ground. All
materials which create a void, such as concrete pipe, must be
crushed to prevent rodent harborage. All filled areas should
be left in a mowable condition. Dumping or filling in low -
lying areas of stream beds or bays must receive prior approval
from an appropriate agency, i.e., the U.S. Corps of Engineers,
the Texas Natural Resource Conservation Commission, etc.
(c) All restorations must be finished within ninety (90) days
after excavation is completed or deemed completed. Such
period may be extended by the city engineer upon a written
request of the applicant, establishing good cause for the
extension of time.
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• Section 3: All ordinances or parts of ordinances inconsistent
with the terms of this ordinance are hereby repealed; provided
however, that such repeal shall be only to the extent of such
inconsistency and in all other respects this ordinance shall be
cumulative of other ordinances regulating and governing the subject
matter covered by this ordinance.
Section 4: If any provisions, section, exception, subsection,
paragraph, sentence, clause or phrase of this ordinance or the
application of same to any person or set of circumstances, shall
for any reason be held unconstitutional, void or invalid, such
invalidity shall not affect the validity of the remaining
provisions of this ordinance or their application to other persons
or sets of circumstances and to this end all provisions of this
ordinance are declared to be severable.
Section 5: This ordinance shall take effect from and after ten
(10) days from its passage by the City Council. The City Clerk is
hereby directed to give notice hereof by causing the caption of
this ordinance to be published in the official newspaper of the
City of Baytown at least twice within ten (10) days after passage
of this ordinance.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown, this the 24th day of February,
1994.
A.,& 1. 4?
PETE C. ALFARD, Mayor
kvW0*40 QP
EILEEN P. HALL, City Clerk
24MS=-Q e!a� v
e7MACIO RAMIREZ, R., City Attorney
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