[HISTORY: Comes from L.L.
No. 4-1964, adopted 7-14-1964, effective 8-3-1964; repealing Ord. No. 42 adopted 7-23-1957.]
As used in this chapter, the terms hereinafter listed, without
in any way limiting the generality thereof, shall include:
Includes dig, dredge, suck and bulldoze.
Includes soil, sand, gravel, clay, bog and mud.
Includes bay, lake, pond, creek, stream, river, channel and
canal.
Includes a private or municipal corporation, a partnership
and an association.
Includes a public highway except where the removal involved
is for the purpose of installing or servicing public utility facilities.
As used in the chapter, the following terms shall have the meanings
hereinafter designated:
A waterway or a watercourse which is navigable in fact, or
the bed of which is owned by the Town or any other municipal or governmental
authority, or in which the Town or any other governmental or municipal
authority has any interest for drainage or otherwise.
Upland which abuts a waterway or watercourse and which is
owned by a private person, association, partnership or corporation.
The Town of Hempstead.
Land owned by the Town, whether upland or in the bed of a
waterway or watercourse.
A.
Notwithstanding the prior granting of permission so to do, no person
shall remove any material from the bed of any waterway or watercourse
or from any private upland or any upland owned by the Town, without
obtaining from the Town Clerk a written permit therefor, issued on
the order of the Town Board, as hereinafter provided.
A permit shall be issued only on the verified written application
of the person proposing to remove or cause the removal of such material;
shall state the amount thereof proposed to be removed; describe the
area from which such removal is proposed by the latitude and longitude
coordinates as determined from the then current United States Coast
and Geodetic Survey of the area, if the area involved is in the bed
of a waterway or watercourse, and by courses and distances if upland;
and shall state the depth to which such removal is proposed throughout
such area. Such application shall be accompanied by a survey showing
the soundings of the area from which such removal is proposed if the
area is in the bed of any waterway or watercourse, and if Town land
is involved, by sections showing the manner in which such removal
is to be made, and a survey and topographical map, with contours at
one-foot intervals, of the area in which the material removed is to
be deposited; all of which shall be certified by a professional engineer
or surveyor licensed by the State of New York.
Each application shall be filed with the Town Clerk and accompanied by an application fee of $25 and, if the application involves the removal of material from upland belonging to the Town, by an amount estimated by the Town Clerk as necessary to defray all expenses which will be incurred by reason of the fact that the resolution required by § 159-6 hereof will be subject to permissive referendum.
The Town Board may adopt a resolution directing the issuance of a permit hereunder for the removal of material from Town land if it shall find that the material proposed to be removed is not required for any Town purpose, that the proposed removal will not violate the provisions of § 159-15 hereof and that the public interest will not be otherwise prejudiced thereby. If the application involves the removal of material from upland belonging to the Town, such resolution shall be subject to a permissive referendum, as provided by Article 7 of the Town Law.
If the Town Board shall find that a proposed removal of Town land will benefit the Town substantially as a necessary improvement of any waterway or waterways affected thereby, the resolution directing the issuance of a permit may waive all or any part of the payments provided in §§ 159-9 and 159-12 hereof.
The Town Board may adopt a resolution directing the issuance of a permit hereunder for the removal of material from private upland if it shall find that such proposed removal will not violate the provisions of § 159-15 hereof and that the public interest will not be otherwise prejudiced thereby.
The Town Board may, on the adoption of a resolution directing the issuance of any permit hereunder, impose conditions on the manner and extent of the proposed removal designed to eliminate or prevent any of the contingencies outlined in § 159-15 hereof, and fix the time on which the removal operations must be commenced and within which they must be completed, and require a deposit in such amount as it may deem necessary to be applied on account of the payments provided in § 159-12 hereof.
The Town Clerk, after a resolution pursuant to this chapter
directing the issuance of a permit has become effective and after
the receipt of a permit fee of $75 and of a bond and public liability
insurance policy and of a deposit required by such resolution, shall
issue such permit conditioned on compliance with such resolution and
this chapter.
The applicant for a permit hereunder shall, before the issuance
thereof by the Town Clerk, file with the Town Clerk a bond in an amount
and with sureties and in form approved by the Town Board, conditioned
on compliance with the provisions of this chapter and with the conditions,
if any, imposed in the resolution directing the issuance of such permit,
and a policy of public liability insurance with independent contractors
and assumed liability coverage insuring the Town of Hempstead as the
named insured at the expense of the applicant, against any liability
which may arise from the removal or deposit of material under such
permit, whether or not the act or omission complained of be by the
applicant or any individual employed by the applicant or by the Town,
and covering any and all damage which may occur within two years after
completion of the operations under such permit, in an amount not less
than $200,000 for bodily injuries, including death, to any one person,
and, subject to the same limit for one person, in an amount not less
than $500,000 on account of each accident; and for property damage
in an amount not less than $100,000 for one accident and in an amount
not less than $500,000 on account of all accidents.
The applicant shall pay to the Town such sum as may be fixed by the Town Board, but not less than $0.35 per cubic yard, for all soil, sand or other material removed from Town land as a result of his operations under such permit, as shown by and accompanying the biweekly certifications required by § 159-13 hereof. The final payment shall be made within 30 days after the work under the permit shall have been completed, or within 30 days after the date specified by the Town Board resolution authorizing issuance of the permit for the completion of the work, whichever shall sooner occur.
Commencing on the second Friday after the issuance of a permit
hereunder, whether or not removal operations have commenced, the person
to whom such permit is issued shall furnish biweekly certifications
of a competent professional engineer, duly licensed by the State of
New York, of the quantities of material removed, or, if none has been
removed, a certification to that fact, and there shall be attached
to such certification a sketch showing the progress of the removal
operations and any deviation from the terms of such permit.
The final payment under § 159-12 hereof shall be accompanied by a certificate by a licensed professional engineer of the amount of material removed and of compliance with the provisions of this chapter. In computing the amount of material removed, the Town Board may, in its discretion, accept a certification of the amount of material deposited or stored as a result of such removal as the equivalent of the amount removed.
All operations under any permit issued pursuant to this chapter
shall be done in such a manner that the removal of material and the
redepositing and storage thereof will neither undermine, weaken, nor
deprive of support other lands in the vicinity, nor otherwise adversely
affect the waterways of the Town and the lands abutting thereon, nor,
unless the permit issued pursuant hereto shall expressly provide otherwise,
substantially change the course of any channel or the natural movement
or flow of any waters or cause or accelerate the drift of underwater
soil, sand, gravel, bog or mud, and the applicant shall, by the acceptance
of a permit hereunder, take and assume all responsibility for any
and all operations thereunder and take all precautions for the prevention
of injuries to persons and property by reason of such operations and
assume the defense of and indemnify and save harmless the Town and
its officers and employees from any and all claims arising out of
or connected with operations under such permit and any and all acts,
omissions or negligence on the part of the applicant and his agents
and employees.
Upon completion of a removal operation hereunder, the person
to whom the permit therefor has been issued shall submit to the Director
of Conservation and Waterways a certificate from a competent professional
engineer, licensed by the State of New York, that the work has been
completed in accordance with this chapter and the resolution of the
Town Board directing the issuance of such permit, together with a
survey showing that the removal operation has been completed, indicating
the depth of the area from which material shall have been removed
and the alopes from which material shall have been removed connecting
with the adjoining lands.
Permits issued under this chapter shall be transferable only
on the consent of the Town Board and on such conditions as it may
impose.
If any person to whom a permit shall have been issued hereunder
shall fail at any time to comply with the provisions of this chapter
or with the conditions imposed by the resolution of the Town Board
directing the issuance of such permit, he shall, upon the direction
of the Director of Conservation and Waterways, immediately suspend
all operations under such permit for such period as may be prescribed
by the Director of Conservation and Waterways, not exceeding 30 days,
and, upon the direction of the Town Board, shall cease all such operations
and remove all equipment used in connection therewith; and, upon such
direction by the Town Board, such permit shall be void, but the suspension
or revocation of such permit shall not relieve the permittee of any
of his obligations hereunder.
Any person who shall remove any material from Town land and
any person who shall cause such material to be so removed without
having a valid and effective permit pursuant to this chapter shall
be liable to the payment to the Town of Hempstead of $1,000 for each
day or part thereof during which such removal shall take place for
the material removed such day, in addition to any penalties prescribed
by law and any other damages for which he may be liable.
The removal of material under this chapter shall not be subject
to the Sand Bank and Pit, Topsoil Removal and Excavations laws of
the Town of Hempstead.[1]
Any person or persons, association or corporation committing
an offense against this chapter, or any section or provision thereof,
is guilty of a Class A misdemeanor punishable by a fine not exceeding
$1,000 or imprisonment for a period not exceeding one year for each
such offense, or by both such fine and imprisonment.
[1]
Editor's Note: Amended 6-25-1968 by L.L. No. 7-1968,
effective 6-28-1965.
The administration and enforcement of this chapter shall be
under the jurisdiction of the Director of Conservation and Waterways,
subject to the Town Board direction.
