[HISTORY: Adopted by the Town Board of the
Town of Poughkeepsie 5-21-2003 by L.L. No. 5-2003.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Building construction — See Ch. 68.
Environmental quality review — See Ch. 94.
Erosion and sediment control — See Ch. 97.
Flood damage prevention — See Ch. 113.
Subdivision of land — See Ch. 177.
Waterfront consistency review — See Ch. 205.
Zoning — See Ch. 210.
[1]
Editor's Note: This local law superseded former Ch. 88, Freshwater
Wetlands, adopted 8-25-1976 by L.L. No. 7-1976.
This chapter shall be known as the "Aquatic
Resource Protection Law" of the Town of Poughkeepsie.
A.
It is the intent of the Town of Poughkeepsie to protect
aquatic resources.
B.
It is the intent of this chapter to exercise concurrent
jurisdiction with NYSDEC and USACOE over all aquatic resources within
the Town.
C.
It is the intent of this chapter to incorporate the
protection of aquatic resources, into the land use, development approval
and construction inspection procedures of the Town.
A.
The Town of Poughkeepsie has determined that the public
interest, health, safety, and general welfare of the residents of
the Town will best be served by providing for the protection, preservation,
proper maintenance, and use of the Town's aquatic resources from encroachment,
spoiling, polluting, or elimination resulting from activities such
as recreational or commercial development, housing, road construction,
utility placement, and/or disregard for natural resources.
B.
The Town desires to prevent acts inconsistent with
the protection of aquatic resources.
C.
Aquatic resources in the Town are valuable natural
resources that benefit the entire Town and the surrounding region
by performing one or more of the following functions:
(1)
Providing common linkages between aquatic systems
(aquifers, floodplains, wetlands, lakes, rivers, etc.).
(2)
Avoiding watershed diversion of ground or subsurface
water.
(3)
Aid in controlling stormwater discharge.
(4)
Providing drainage and flood control through hydrologic
absorption, natural storage, and flood conveyance.
(5)
Protecting subsurface water resources, watersheds,
and groundwater recharge systems.
(6)
Providing critical living, breeding, nesting, and
feeding environments for many forms of wildlife, including, but not
limited to, mammals, wildfowl, shorebirds, rare species, especially
endangered and threatened species, and other dependent plants and
animals.
(7)
Reducing pollution through natural biological degradation
and chemical oxidation.
(8)
Controlling erosion by serving as sedimentation areas
and filter basins, capturing silt and organic matter.
(9)
Providing sources of nutrients in freshwater food
cycles.
(10)
Serving as nursery grounds and sanctuaries for freshwater
fish.
(11)
Providing recreation.
(12)
Serving as educational and research resources.
(13)
Preserving open space and aesthetic resources.
D.
Areas adjacent to aquatic resources provide essential
protection by reducing impacts from activities taking place on surrounding
lands. For the purpose of this chapter, these adjacent areas are defined
as buffers. In addition to those benefits listed above, buffers adjacent
to aquatic resources perform one or more of the following functions:
E.
The protection of aquatic resources and buffers is
a matter of concern to the entire Town. The establishment of regulatory
and conservation practices for aquatic resources, and buffers serves
to protect the Town by ensuring review and regulation of activity
that might adversely affect the health, safety, and welfare of the
citizens of the Town.
F.
Aquatic resources in the Town and other areas form
an ecosystem that is not confined to any one property or neighborhood.
Experience has demonstrated that effective protection requires consistency
of approach in preservation and conservation efforts throughout the
Town.
G.
The State of New York has enacted legislation entitled
the "Freshwater Wetlands Act" found in Article 24 of New York State
Environmental Conservation Law, which authorizes local governments
to establish their own procedures for the protection and regulation
of aquatic resources lying within their jurisdiction (6 NYCRR Part
665).
H.
The Federal government, through the USACOE, in cooperation
with the Environmental Protection Agency and the Fish and Wildlife
Service, regulates certain activities affecting aquatic resources
in the Town as part of its nationwide jurisdiction over such aquatic
resources. It is the intent of this chapter to provide for local protection
of these aquatic resources without replacing, limiting, or conflicting
with this federal jurisdiction.
Except where specifically defined herein, all
words used in this chapter shall carry their customary meanings. Words
used in the present tense include the future and the plural includes
the singular. The word "shall" is intended to be mandatory. As used
in this chapter, the following terms shall have the meanings indicated:
Any act, action, deed, operation, or procedure by any individual
or individuals, firm, partnership, association, corporation, company,
organization, or other legal entity of any kind, including municipal
corporations, governmental agencies, or subdivisions.
All activities, as defined in the NYS Agriculture and Markets
Law, directly related to the grazing, growing or raising of crops
or livestock, including, but not limited to, horticulture and fruit
production, on any property receiving Agricultural Value Assessment.
Timber harvesting, clear-cutting, draining and permanent alteration
of aquatic resources are not included in agricultural activities.
To change, move, or disturb any vegetation, soil, drainageway,
or other natural material or system within an aquatic resource, as
defined by this chapter.
Any individual or individuals, firm, partnership, association,
corporation, company, organization, or other legal entity of any kind,
including municipal corporations, governmental agencies, or subdivisions
thereof, who has a request for a permit to conduct a regulated activity
before the approval authority.
The administrative board, public official, or public employee
empowered to grant or deny permits under this chapter, to require
the posting of bonds as necessary, and to revoke or suspend a permit
where lack of compliance is established. The approval authority shall
be the Planning Board or the Building Inspector for the Town or as
the Town Board may appoint.
Any wetland, watercourse, or water body and associated buffers.
Protective areas or upland areas surrounding or adjacent
to any wetland, watercourse or water body that are subject to regulation.
The size and extent of the buffers shall be as follows:
For aquatic resources of at least one acre but
less than five acres, the buffer shall be 25 feet. For aquatic resources
of at least five acres but less than nine acres, the buffer shall
be 50 feet. For aquatic resources of at least nine acres but less
than 12 acres, the buffer shall be 75 feet. For aquatic resources
of 12 acres or greater, the buffer shall be 100 feet. The buffers
cited above may be greater where designated by the approval authority.
The buffers shall be measured horizontally and in a direction perpendicular
to the aquatic resources boundary, thus the buffer boundary shall
parallel the aquatic resources boundary.
The buffer for the Wappingers Creek shall be
50 feet beyond the streambank.
The buffer for all streams other than the Wappingers
Creek shall be 25 feet from the streambank.
Any cutting of more than 30% of trees four inches or more
in diameter breast height (4.5 feet), including cutting of trees which
results in the total removal of one or more naturally occurring species,
whether or not the cutting meets or exceeds the 30% threshold, over
any ten-year cutting cycle as determined on the basis of wetland/buffer
area per lot or group of lots under single ownership.
The individual(s) designated by the Town Board and charged
with the enforcement of the Town's building, fire, and zoning codes.
Barriers used to obstruct the flow of water to raise, lower,
or maintain the water level in aquatic resources.
Dutchess County Soil and Water Conservation District.
To fill, place, discharge, or dump any material.
The release of any water, substance, or material into an
aquatic resource whether or not such substance causes pollution. The
release of stormwater into an aquatic resource is excluded from the
definition of "discharge."
To deplete or empty of water by drawing off by degrees or
in increments; or to modify the hydrology so as to reduce the amount
of water within an aquatic resource.
To excavate or remove sediment, soil, mud, sand, shells,
gravel, or other aggregate or artificial fill.
Activities conducted in existing aquatic resources which
increase one or more aquatic functions.
To dig out and remove any material.
A land use which, prior to the effective date of this chapter,
is either:
The depositing of material in an area to change the grade.
To alter the natural elevation of the land greater than two
feet, or the addition/removal of greater than 50 cubic yards of material
from the project site.
Liquid, solid, or gaseous substances, including, but not
limited to, soil, silt, gravel, rock, sand, clay, peat, mud, debris,
and refuse; any organic or inorganic compound, chemical agent, or
matter, including sewage, sewage sludge, or effluent; and agricultural,
industrial, or municipal solid waste.
The restoration, creation, and/or enhancement of an aquatic
resource area for the purpose of compensating for unavoidable adverse
impacts that remain after all appropriate and practicable avoidance
and minimization has been achieved.
The New York State Department of Environmental Conservation.
That form of written Town approval required by this chapter
for the conduct of a regulated activity.
The duly appointed Planning Board of the Town.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to human, plant, or animal life or to property.
Any activity resulting in direct or indirect physical or
chemical impact on an aquatic resource, including, but not limited
to, any regulated activity. For the purpose of this chapter, a project
is considered the total action proposed or accomplished by one owner/developer
or partnership or other association of owners/developers.
To dig, dredge, suck, bulldoze, dragline, blast, mine, or
otherwise excavate or regrade, or the act thereof.
Reestablishment of the aquatic resource characteristics and
function(s) at a site where they have ceased to exist or exist in
a substantially degraded state.
The law pursuant to Article 8 of the New York Environmental
Conservation Law providing for environmental quality review of actions
which may have a significant effect on the environment.
Any watercourse which appears as a solid blue line on the
2003 Aquatic Resources Map of the Town.
The outermost edge of a stream channel.
The area of a stream that transports bankfull flow. Bankfull
flow is the point at which flooding may just begin to escape the channel
and enter the floodplain. On average, bankfull discharge will occur
once every 1.5 years.
Anything constructed or erected, the use of which requires
location on or in the ground or attachment to something having location
on the ground. The term includes, but is not limited to, buildings,
tennis courts and swimming pools.
Any activity which may alter the physical characteristics
of any forested land, including, but not limited to, any activity
involving or associated with the cutting of trees, except that the
following activities shall not be considered to be timber harvesting:
Town of Poughkeepsie.
The duly elected Town Board of the Town of Poughkeepsie.
The duly elected Town Clerk of the Town of Poughkeepsie.
Any person or firm employed by the Town of Poughkeepsie as
the Town Engineer.
United States Army Corp of Engineers.
Any natural or artificial, permanent, ephemeral, or intermittent,
public or private pond, lake, reservoir, or other area which usually
or intermittently contains water and which has a discernible shoreline
of a water body.
Any natural or artificial, permanent or intermittent, public
or private water body or water segment, such as rivers, streams, brooks,
waterways or natural drainage swales that is contained within, flows
through, or borders the Town of Poughkeepsie.
The limit of the stream channel.
All areas of 1/10 acre or greater in area that comprise hydric
soils or soils that possess characteristics associated with reducing
soil conditions, and/or are saturated by surface or groundwater at
a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of hydrophytic vegetation as
defined by The Federal Interagency Committee for Wetlands Delineation,
1987, in the Federal Manual for Identifying and Delineating Jurisdictional
Wetlands, Washington, D.C., and adopted by the USACOE, United States
Environmental Protection Agency, and the United States Fish and Wildlife
Service, or as amended and updated. Hydric soils referenced above
shall include Canandaigua(Ca), Carlisle(Cc), Fluvaquents(Ff), Halsey(Ha),
Hydraquents(Hy), Livingston(Lv), Medisaprists(Hy), Palms(Pc), Sun(Su),
Wayland(Wy), and potential hydric soils Kingsbury and Rhinebeck(Kn),
Linlithgo(Ln), Massena A(MnA), Massena B(MnB), Punsit(Pz), Udorthents(Ue),
Fredon(Fr), and Raynham Silt Loam(Ra), as listed in the revised Dutchess
County Soil Survey Series or such revised, updated and adjusted soil
surveys as may be completed.
The outer limits of the environmental characteristics of
a wetland, as defined under "wetland" in this section and as properly
delineated, as defined under "wetland delineation" in this section.
The process of determining wetlands and their boundaries.
The boundaries of a wetland shall ordinarily be determined by field
investigation, flagging and survey by qualified professionals such
as Dutchess County Soil and Water Conservation District. A wetland
delineation by the NYSDEC or USACOE shall constitute delineation for
purposes of this chapter.
Common name given to the 1987 manual produced by the USACOE
referenced in the definition of "wetland" above, which presents approaches
and methods for identifying and delineating wetlands for purposes
of Section 404 of the Clean Water Act. It is designed to assist users
in making wetland determinations using a multiparameter (soil, hydrology,
and vegetation) approach.
The duly appointed Zoning Board of Appeals of the Town.
A.
Regulated activities are not prohibited by this chapter,
but no regulated activity shall be conducted in an aquatic resource
without a written permit from the approval authority and full compliance
with the terms of this chapter.
B.
Permitted activities. The following activities are
permitted without a permit within aquatic resources, provided they
do not create a pollution or erosion hazard, interfere with proper
drainage, adversely affect reasonable water use by others, and do
not require grading, filling, draining or dredging for which a permit
may be required. Such acts must conform to the Town Zoning Ordinance,
Building Code, and any and all other applicable laws and statutes:
(1)
Normal ground maintenance, including, but not limited
to, mowing, trimming of vegetation, and removal of dead or diseased
vegetation around a residence.
(2)
Repair of existing walkways, walls, and driveways.
(3)
Maintenance and repair of preexisting structures.
(4)
Operation and maintenance of existing dams and water
control devices.
(5)
Public health activities, in emergencies only, of
the New York State or Dutchess County Departments of Health.
(7)
Activities which qualify as Type II actions under
the provisions of 6 NYCRR § 617.5(c) as the same may be
amended from time to time.
C.
Regulated activities which require an aquatic resource permit. Except as otherwise provided in § 116-5B of this chapter, a written permit from the approval authority is required for any of the following activities in an aquatic resource, if the activity impacts a portion greater than or equal to 1/10 acre:
(1)
Place or construct any structure.
(2)
Conduct any form of draining, dredging, excavation,
or removal of material, either directly or indirectly.
(3)
Conduct any form of filling or depositing any sort
of material, either directly or indirectly.
(4)
Install any service lines or cable conduits.
(5)
Introduce any form of pollution, including, but not
limited to, the installing of a septic tank, the running of a sewer
outfall, or the discharging of sewage treatment effluent or other
liquid wastes into, or so as to drain into, an aquatic resource.
(6)
Alter or grade natural and/or existing man-made features
and contours, alter drainage conditions, or divert any flow of an
aquatic resource.
(7)
Construct docks, bridges, pilings, dams, impoundments,
or other water control devices (including swales) whether or not they
change the ebb and flow of the water.
(8)
Install any pipes or wells.
(9)
Construct a driveway or road.
(10)
Strip any area of vegetation, including clear-cutting.
D.
It shall be unlawful for any individual or entity
to place or deposit chemical wastes or to introduce influents of sufficiently
high thermal content as to cause deleterious ecological effects in
any aquatic resource.
The approval authority of permits for regulated
activities under this chapter shall be:
A.
No individual or entity shall undertake a regulated
activity within an aquatic resource without first obtaining a written
permit as provided for in this chapter.
B.
Any applicant proposing to conduct or causing to be conducted a regulated activity requiring a permit under this chapter shall file an application, in such form and with such information as the approval authority shall prescribe as provided for in § 116-6.
(1)
For those applications not involving a site plan or
subdivision, the following information shall be included, at a minimum:
(a)
The name, address and telephone number of the
owner;
(b)
The street address and tax map designation of
the property;
(c)
A sketch plan including boundaries of the property
parcel with the boundaries of any aquatic resources indicated on the
sketch;
(d)
A description of the proposed work and purpose,
and a statement describing why the activity cannot be located outside
the aquatic resource; and
(2)
For those applications that include a site plan or subdivision, the following information shall be included, in addition to that required in § 116-8A:
(3)
Additional information may be required by the approval
authority in order to make a determination on the application.
C.
Single application required.
(1)
Where an application has been made to the approval
authority for an activity that is subsequently determined to require
a permit pursuant to this chapter, a copy of said application may
be considered as the permit application.
(2)
Where a proposed activity is found to require a NYSDEC
and/or USACOE permit, that permit shall serve as the application and
permit, provided that such permit meets the requirements of this chapter.
In any instance where the state or federal permit fails to include
the buffer requirements as set forth in this chapter, then the approval
authority may choose to add separate conditions to such permit in
order to meet the requirements set forth in this chapter.
D.
All permits issued pursuant to this chapter shall
be affixed as conditions to the final approval issued by the Planning
Board or affixed to the building permit as conditions to the issuance
of a certificate of occupancy.
E.
A public hearing shall be held on the completed application
with notice being given by publication in the Town's official newspaper
at least 10 days prior to the date of the hearing.
F.
Waiver of requirements. Should the approval authority
determine, after review of a completed application, that an activity
proposed for a regulated area is insignificant, the approval authority
shall have the power to:
G.
Where the approval authority finds that any waivers
are appropriate, such waivers shall be set forth in a written decision
filed with the application.
H.
A filing fee, as provided in Chapter 105, Fees, shall be provided at the time the application is submitted. The fee shall be deemed a reasonable sum to cover the cost of administration and shall in no part be returnable to the applicant(s). In the event that an application requires the Town to incur additional expenses for technical assistance in the review of an application, the applicant shall pay the reasonable expenses incurred by the Town. The applicant shall be notified of the expenses and shall deposit the funds with the Town Comptroller prior to the cost being incurred.
A.
The approval authority shall consider the following
information in reaching its determination to approve, approve with
conditions, or deny an application for a permit under this chapter:
(1)
A description of the existing conditions of the site
on which the aquatic resource or resources is or are located.
(2)
A description of the aquatic resource or resources
in which the activity is proposed to take place.
(3)
A description and analysis of the functions of the
aquatic resource or resources for groundwater recharge, groundwater
discharge, stormwater management, flood flow alteration, sediment
stabilization, nutrient removal, habitat for flora, habitat for fauna,
and recreational uses.
(4)
A description and analysis of the impact or impacts
that the proposed activity will have on the aquatic resource or resources,
including the magnitude of the impact or impacts, the duration of
the impact or impacts, including but not limited to a statement as
to whether the duration is temporary, short-term, long-term or permanent,
whether the impact or impacts are adverse to the functioning of the
aquatic resource or resources or neutral or positive.
(5)
A description and analysis of mitigation available
to remedy negative impacts to the extent that such negative impacts
are identified.
(6)
Such other information as may be submitted to the
approval authority by the applicant, the public, or other governmental
agencies, to the extent that such information is relevant to the approval
standards contained in this chapter.
B.
Standards for permit decisions. The approval authority
may grant, grant with conditions, or deny a permit. The approval authority
shall grant the permit under this chapter upon making the following
findings:
(1)
The proposed activity will not have a significant
adverse impact on the functioning of the aquatic resource or resources
within which the activity is proposed to take place.
(2)
In the event of negative impact or impacts, the mitigation
proposed will mitigate adverse impact or impacts identified in a manner
that will allow the aquatic resource or resources to function in a
manner substantially equivalent to the functioning of such resource
or resources prior to the proposed activity.
C.
Compensatory mitigation. In the event that significant
adverse impacts on the functioning of the aquatic resource or resources
are identified, the applicant or the approval authority, in the form
of conditions, may propose mitigation. "Mitigation" means a way to
avoid, minimize or compensate adverse impacts. Without limiting the
generality of the term, mitigation may include relocation of aquatic
resources, in whole or in part, substitution of alternative aquatic
resources, in whole or in part, or replacement of aquatic resources,
in whole or in part, whether on the same parcel or another parcel
within the Town.
A.
All permits issued pursuant to this chapter by the
Building Inspector shall expire two years from the date of issue,
unless the activity has been completed or substantial construction
has taken place and is continuing. The Building Inspector may extend
the expiration of said permit for an additional period of one year
if the Building Inspector deems such extension is warranted by the
particular circumstances of the project. No original permit issued
by the Building Inspector shall be valid for a period of more than
three years from the original date of issuance. Requests for extensions
must be made, in writing, 30 days prior to the expiration date of
the permit.
B.
All permits issued pursuant to this chapter by the
Planning Board shall follow all expiration periods as proscribed by
the Planning Board and/or all applicable Town ordinances.
C.
No extensions shall be granted to any permit issued pursuant to this chapter, if such permitted activity is in violation of any condition of said permit or any provision of this chapter, until such time that the violations have been corrected to the satisfaction of the Code Enforcement Officer, notwithstanding § 116-13 below.
D.
The Town reserves the right to suspend or revoke any
permit issued pursuant to this chapter for any permitted activity
found to be in violation of any condition of said permit or any provision
of this chapter.
[Amended 6-3-2009 by L.L. No. 22-2009]
Any observed violation by the Code Enforcement Officer shall
subject the project to a stop-work order. Additionally, any person
convicted of having violated any provision of this chapter or any
condition attached by the approval authority in a permit issued pursuant
to this chapter shall, for the first offense, be punishable by a fine
of not less than $500 but not more than $1,000. For each subsequent
offense, such person shall be punishable by a fine of not less than
$1,000 but not more than $10,000. Each consecutive day of violation
may be considered a separate offense. Payment of such penalty shall
not preclude corrective action and/or the removal of conditions found
to be in violation of this chapter.
A.
This chapter shall be enforced by the Building Inspector
or any other Town official as designated by the Town Board.
B.
The Town is specifically empowered to seek injunctive
relief restraining any violation, threatened violation or breach of
any permit condition under the provisions of this chapter and/or to
compel the restoration of the affected aquatic resource to its condition
prior to the violation or breach of any permit condition. If the Town
is successful in obtaining preliminary and/or injunctive relief, it
shall be entitled to an award by the court of its reasonable attorney's
fees.
C.
In addition
to any other remedies set forth herein authorizing the Town to enforce
the provisions of this chapter, establishing penalties, and setting
forth additional remedies, the person charged with the responsibility
to enforce the provisions of this chapter may impose a civil fine
or agree to a civil fine not to exceed $1,000 per day for each day
of the violation. If said civil fine is imposed, then the alleged
violator may appeal to the Town Board of the Town of Poughkeepsie.
[Added 6-3-2009 by L.L. No. 22-2009]
Where practical difficulties, unnecessary hardships
and results inconsistent with the general purpose of the chapter or
certain provisions thereof are encountered, the applicant may appeal
to the Town Board for relief from any provision set forth herein.
The approval authority may require the posting
of a performance bond or other collateral as a condition of approval.
The amount of the performance bond or other collateral shall be computed
by the Town Engineer, but no more than one performance bond for any
one project need be posted, and the Town Engineer may include amounts
necessary to ensure compliance with this chapter in any security given
pursuant to the subdivision, site plan or other permitting regulations
of the Town.
Where this chapter imposes greater restrictions
than are imposed by the provision of any law, ordinance, or regulation,
this chapter shall control. Where greater restrictions are imposed
by any law, ordinance, or regulation than are imposed by this chapter,
such greater restriction shall control.
If any clause, sentence, paragraph, section
or part of this regulation shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder thereof but shall be confined in its operation
to the clause, sentence, paragraph, section or part thereof directly
involved in the controversy in which such judgment shall have been
rendered or as determined by such judgment.
