Town of Babylon, NY
Suffolk County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Babylon, 12-9-1969;[1] amended in its entirety 9-3-1980 by Res. No. 10. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Beaches — See Ch. 81.
Boats — See Ch. 86.
Dredging — See Ch. 108.
[1]
Editor's Note: The provisions of this chapter are derived from Art. V of Ch. 6 of the 1969 Unified Code of Ordinances of the Town of Babylon.

§ 183-1 Definitions.

For the purpose of this chapter, the following words and phrases shall have the meanings indicated:
CERTIFIED AREA
An area designated by the New York State Department of Environmental Conservation to be in such sanitary condition that shellfish therein may be taken for use as food.
CHURNING
The disturbance of bottom soil by use of an outboard motor.
[Amended 5-3-1983 by Res. No. 3]
COMMERCIAL HARD CLAM HARVEST ENDORSEMENT
Endorsement on a commercial shellfish permit enabling only the holders of said endorsement to engage in the activity of harvesting hard clams (Mercenaria mercenaria) from Town lands under water, for purposes not limited to personal or family use.
[Added 1-20-2010 by L.L. No. 2-2010; amended 9-18-2012 by L.L. No. 12-2012]
COMMERCIAL SHELLFISH PERMIT
A permit issued to persons to take shellfish, except hard clams (Mercenaria mercenaria), from Town lands under water for purposes not limited to the personal or family use of such person in quantities of 100 or more per day.
[Amended 1-20-2010 by L.L. No. 2-2010]
IMMEDIATE FAMILY MEMBER
Spouse, sibling, parent, child, grandparent, grandchild, and, if domiciled in the house of a Great South Bay commercial hard clam harvester, all persons who are related by blood, marriage, or adoption to the Great South Bay commercial hard clam harvester.
[Added 9-18-2012 by L.L. No. 12-2012]
MANAGEMENT AREA
An area set aside by the Town Board for the conservation, preservation, protection, rehabilitation, seeding and/or growth of shellfish.
NIGHT
The period between sunset and sunrise.
PERSONAL SHELLFISH PERMIT
A permit issued to persons to take shellfish from Town lands under water for the personal or family use of such person in quantities of 100 or less per day.
[Amended 1-20-2010 by L.L. No. 2-2010]
RESIDENT
A person who has his or her principal place of residence in the Town of Babylon for at least six months prior to the date of the submission of a permit application.
SHELLFISH
Includes all types and varieties of oysters (Crassostrea virginica), mussels, scallops, (Pectin irradians), hard clams (Mercenaria mercenaria), soft clams (Mya arenaria) and any combination thereof.
TAKING
Includes the actual removal of shellfish from Town lands under water and/or the area above Town lands under water and all lesser acts such as attempting to remove shellfish, disturbing shellfish and using any implement or device to remove shellfish, regardless of whether such acts result in the removal of shellfish.
TOWN LANDS UNDER WATER
Includes all land under water in and owned by the Town of Babylon.
UNCERTIFIED AREA
An area designated by the New York State Department of Environmental Conservation not to be in such sanitary condition that shellfish therein may be taken for use as food.

§ 183-2 Permit required.

No person shall take shellfish from Town lands under water unless such person has obtained a permit therefor as prescribed by this chapter.

§ 183-3 Exceptions to permit requirements.

A. 
Residents of the Town of Islip who have duly obtained a permit for the taking of shellfish from lands under water in and owned by the Town of Islip in accordance with the Town of Islip Shellfish Law may take shellfish from Town lands under water which have not been designated by the Town board as open only to residents of the Town of Babylon.
B. 
Residents of the Town of Islip desiring to avail themselves of the privileges hereinbefore stated shall display evidence of the permit issued to them by the Town of Islip in a conspicuous place either upon their person or the vessel used in taking.

§ 183-4 Types of permits.

[Amended 1-20-2010 by L.L. No. 2-2010; 9-18-2012 by L.L. No. 12-2012]
A. 
Personal permit. A personal permit shall allow the person to whom it is issued to take shellfish from Town lands under water for the personal or family use of such person only.
B. 
Commercial permit. A commercial permit shall allow the person to whom it is issued to take shellfish, except hard clams (Mercenaria mercenaria), from Town lands under water for purposes not limited to the personal or family use of such person.
C. 
Commercial permit hard clam endorsement. A hard clam endorsement shall allow the person to whom it is issued to harvest hard clams (Mercenaria mercenaria) in addition to other shellfish from Town lands under water for purposes not limited to the personal or family use of such person. A person in possession of a commercial permit hard clam endorsement shall harvest no more than 2,000 hard clams per day from Town lands under water.

§ 183-5 Number of types of permits limited.

The Town Clerk shall not issue more than one type of permit to any person; nor shall the Town Clerk issue a personal permit to any person holding a New York State commercial permit.

§ 183-6 Application for permit; fees; permit contents.

[Amended 1-20-2010 by L.L. No. 2-2010; 9-18-2012 by L.L. No. 12-2012]
A. 
Permits shall be issued to residents only.
B. 
Each permit application shall be made in duplicate in writing on the form prescribed by the Town Clerk and shall include the applicant's name, residence, mailing address, date of birth, weight, height, color of hair and eyes, signature and all other information requested by the Town Clerk.
C. 
An application for a permit for a person under the age of 17 years shall be cosigned by that person's parent or guardian.
D. 
Prior to the issuance of a permit, the Town Clerk shall be satisfied as to the identification and residence of the applicant.
E. 
Each permit application shall be accompanied by the appropriate fee.
(1) 
Personal permit: $5, except that there shall be no fee for a person 62 years of age or older.
(2) 
Commercial permit: $75, except that the fee shall be $25 for persons 62 years of age or older.
F. 
Each commercial permit application shall be accompanied by the applicant's New York State Department of Environmental Conservation permit.
G. 
Each commercial permit application shall be accompanied by two full-face photos of the applicant taken within two months prior to the application date.
H. 
Each permit shall be in the form prescribed by the Town Clerk and shall contain the matters set forth upon the application.
I. 
The original application shall be filed in the Town Clerk's office, and the duplicate application shall be filed in the Environmental Control Office.
J. 
A commercial hard clam endorsement requires that the individual applying for said endorsement has a current New York State shellfish permit and a Town commercial shellfish permit.
(1) 
The number of commercial hard clam endorsements issued by the Town Clerk in any one year shall be limited to 27. The number of available commercial hard clam endorsements issued by the Town in any one year may be adjusted to reflect changes in the health of the hard clam population based on the results of the most recent population surveys and harvest statistics available for town waters, and set, on a yearly basis, by Town Board resolution and proper publication of notice thereof.
(2) 
Any individual interested in obtaining a commercial hard clam endorsement shall have from January 1 until February 14 to make themselves known to the Town of Babylon Department of Environmental Control. Those individuals shall be classified in to three categories:
(a) 
Category 1: Those individuals having held a commercial hard clam endorsement in good standing in 2011 shall be issued an endorsement.
(b) 
Category 2: Those individuals who did not hold a commercial hard clam endorsement in 2011 but who meet one of the following criteria will be issued an endorsement upon showing documentation that they meet at least one of the following criteria, even if the number of approved applications is greater than the annual cap:
[1] 
The individual can document that he or she has held a commercial shellfish harvester permit during any five consecutive years while maintaining residency in the Townships of Babylon, Brookhaven or Islip; or
[2] 
The individual was eligible for but unable to obtain an endorsement due to active duty military service; or
[3] 
The individual is able to clearly and unambiguously demonstrate the historical and current presence of immediate family members engaged in the commercial clamming fishery in the Great South Bay and the individual is at least 16 years old at the time of application; or
[4] 
The individual can clearly and unambiguously demonstrate an investment in the equipment necessary for participation in the commercial clam fishery in the Great South Bay and the possession of a currently valid New York State shellfish diggers permit and the possession of same in at least three years previous to 2012; or
[5] 
The individual can document that he or she is age 62 or older at the time of application.
(c) 
Category 3: Those individuals who do not fall in to either of the above two categories and who have expressed an interest in obtaining a commercial hard clam endorsement in the coming year shall be placed on a waiting list. If, by the end of the annual renewal period, there are sufficient commercial hard clam endorsements remaining under the cap, all individuals in Category 3 shall receive an endorsement. If the number of individuals in Category 3 is greater than the number of endorsements available under the annual cap, then endorsements shall be awarded by random lottery.

§ 183-7 Nontransferability of permit.

A person to whom a permit has been issued shall not transfer, assign or allow any other person to use the permit.

§ 183-8 Display of permit required.

A person engaged in taking shellfish from Town lands under water shall locate his permit so that it shall be prominently displayed and clearly visible.

§ 183-9 Expiration of permit.

A. 
A commercial permit shall be valid from the date of issuance and, unless sooner voided, suspended or revoked in accordance with § 183-30, shall expire on the 31st day of December next ensuing.
[Amended 1-20-2010 by L.L. No. 2-2010]
B. 
A permit shall expire if the person to whom it is issued ceases to be a resident.
C. 
Each personal permit shall expire on December 31 of the year of issuance.

§ 183-10 Permitted means of taking shellfish.

A. 
Oysters and mussels. Oysters and mussels shall be taken from Town lands under water by means of tongs or rakes without mechanical power.
B. 
Hard clams. No implement or device shall be used in taking hard shell clams from Town lands under water except:
(1) 
Tongs without mechanical power and having not less than one inch of clear space between teeth.
(2) 
Rakes without mechanical power and having not less than one inch of clear space between teeth.
C. 
Soft clams. Soft clams may be taken only by implements commonly known as "shovels," "forks" and "hoes," except that churning shall be permitted on lands below low tide.
[Amended 1-6-1981 by Res. No. 19]
D. 
Wire netting. No wire netting or other substance shall be used in the basket of any implement used to take hard clams.
E. 
Dredge. No person shall use any type of dredge to take shellfish from Town land under water except as provided herein.
F. 
Bay scallops. Bay scallops may be taken with a dredge or scrape having an opening at the mouth not to exceed 36 inches in width when towed by a boat operated by mechanical power or other means, provided that such dredge or scrape is brought aboard by hand power without the use of mechanical devices.

§ 183-11 Personal and commercial permit holders acting in concert; vessel endorsements.

[Amended 9-18-2012 by L.L. No. 12-2012]
A. 
Personal permit holder with commercial permit holder. A holder of a personal permit shall be deemed to harvest shellfish commercially if that holder is operating in concert with a person holding a commercial permit. "Acting in concert" shall mean harvesting shellfish from the same vessel as a person holding a commercial permit or in such close proximity as to make it reasonable to presume that such persons are working in concert.
B. 
The Town shall recognize the rights granted to an individual who is in possession of a vessel endorsement as authorized under New York Environmental Conservation Law § 13-0311.

§ 183-12 Restrictions on taking shellfish.

A. 
Uncertified area. No unauthorized person shall take shellfish from an uncertified area.
B. 
At night. No person shall take shellfish from Town lands under water during the night.
C. 
Quantity. A person to whom a personal permit is issued shall not take more than 1/4 bushel of shellfish each day.
D. 
Sunday. A person to whom a commercial permit is issued shall not take shellfish from Town lands under water on Sunday.

§ 183-13 Restrictions on sizes of shellfish.

A. 
No shellfish of less than the following size shall be taken, bought, sold or possessed within the Town:
(1) 
Hard clams: No more than 3% of each bushel, package or other container shall consist of clams less than one inch (2.54 centimeters) in thickness.
(2) 
Oysters: not less than three inches (7.62 centimeters) in the longest diameter. Oysters measuring less than three inches in their longest diameter may comprise no more than 5% of any bushel, package or container.
[Amended 1-22-2008 by L.L. No. 1-2008]
(3) 
Bay scallops: Only those bay scallops having an annual growth line and measuring at least 2 1/4 inches (5.715 centimeters) from the middle of the hinge to the middle of the bill may be taken. Scallops that are less than the legal size and do not possess an annual growth line may comprise no more than 2% of the catch when unavoidably taken.
[Amended 1-22-2008 by L.L. No. 1-2008]
(4) 
Soft clams or steamers: not less than 1 1/2 inches (3.81 centimeters) in the longest dimension.
B. 
A person who takes the shellfish which are smaller than the required size shall immediately return such shellfish to the location from which they were taken.
C. 
All devices used to sort shellfish as to size, including but not limited to cull racks, shall have no less than one inch (2.54 centimeters) of space between bars.
D. 
Those engaged in the taking of hard clams with rakes shall size-sort in the immediate area where they were taken using a cull box with bars having not less than one inch (2.54 centimeters) of clear space between the bars. Such cull device shall be designed and affixed to the vessel in such a manner as to allow hard clams that pass through the cull bars to fall directly and unimpaired to the water from which they were taken. Those engaged in the taking of hard clams with tongs shall have no more than three bushels of bay cull (shellfish and assorted bottom material unavoidably taken during harvesting) on board at any time, and shall have none on board while underway.
[Added 1-20-2010 by L.L. No. 2-2010]

§ 183-14 Seasons during which oysters may be taken.

A. 
No oysters or oyster sets shall be taken from Town lands under water from May 15 to August 31, both inclusive, in any year.
B. 
A person who takes oysters from Town lands under water out of season shall immediately return such oysters.

§ 183-15 Restrictions on taking scallops.

A. 
Scallops shall be taken from Town lands under water only between the first Monday in November through March 31, both days inclusive.
[Amended 1-22-2008 by L.L. No. 1-2008]
B. 
A person who takes scallops from Town lands under water out of season shall immediately retain such scallops.
C. 
No person shall take more than 10 bushels of bay scallops from Town land under water per day.
D. 
Two or more persons utilizing the same vessel concurrently shall not take more than 20 bushels of bay scallops per vessel per day.
E. 
Scallops may not be possessed for sale for food purposes from April 1 to the first Monday in November. This does not apply to bay scallops harvested during the open season (first Monday in November through March 31) that have been shucked and packed in approved packages and frozen and kept in a frozen state.
[Added 1-22-2008 by L.L. No. 1-2008]

§ 183-16 Use of beam and otter trawls.

No beam trawls or otter trawls shall be used in any of the waters of the Town if same shall drag upon Town lands under water so as to interfere in any manner with the natural or cultivated growth of any shellfish in said waters. The possession by any person of such beam trawl or otter trawl overboard in the waters of the Town shall be prima facie evidence that the same is dragging upon Town lands under water and disturbing or interfering with the shellfish therein or thereon.

§ 183-17 Management areas.

A. 
The Town Board may, in its discretion, designate any portion of Town lands under water a management area.
B. 
An uncertified area shall be a management area.
C. 
The Commissioner of Environmental Control may prohibit, restrict and regulate the taking of shellfish from a management area. In making a determination whether to prohibit, restrict or regulate the taking of shellfish from a management area, the Commissioner of Environmental Control shall give due consideration to the following:
(1) 
Whether the shellfish in the management area have been sufficiently purified to be suitable as food for human consumption.
(2) 
Whether the first spawning period has passed for the shellfish in the management area.
(3) 
Whether a minimum quantity of shellfish is available within the management area for spawning until such time as desired quantities of shellfish are maintained.
(4) 
Recommendations from the Town of Babylon Bay Management Commission.
D. 
A description of each management area and all prohibitions, restrictions and regulations with regard to the taking of shellfish from a management area shall be posted in the office of the Town Clerk.

§ 183-18 Compliance with management area regulations; interference with markers.

A. 
No person shall violate the Commissioner of Environmental Control's prohibitions, restrictions or regulations with regard to the taking of shellfish from a management area.
B. 
No person shall remove stakes, buoys or other devices used to mark a management area or Town lands under water.

§ 183-19 Commercial buyer's or buyer's helper permit required.

No person shall buy, sell or otherwise deal with shellfish for commercial purposes unless such person has obtained a commercial buyer's permit or buyer's helper permit as prescribed by this chapter.

§ 183-20 Commercial buyer's permit application.

A. 
Each commercial buyer's permit application shall be made in duplicate in writing on the form prescribed by the Town Clerk and shall include the applicant's name, residence, mailing address, date of birth, weight, height, color of hair and eyes and signature, the description, license plate number and name and address of the owner of each motor vehicle to be used by the applicant in dealing with shellfish for commercial purposes and all other information requested by the Town Clerk.
B. 
Each commercial buyer's permit application shall be accompanied by a fee of $500.
C. 
Each commercial buyer's permit application shall be accompanied by a New York State Department of Environmental Conservation permit authorizing the applicant to deal with shellfish for commercial purposes.

§ 183-21 Buyer's helper permit application.

A. 
Each buyer's helper permit application shall be made in duplicate in writing on the form prescribed by the Town Clerk, and shall include the applicant's name, residence, mailing address, date of birth, weight, height, color of hair and eyes and signature, name and address of the applicant's employer and all other information requested by the Town Clerk.
B. 
Each buyer's helper permit application shall be accompanied by a fee of $50.
C. 
Each buyer's helper permit application shall be accompanied by the applicant's employer's commercial buyer's permit.

§ 183-22 Areas protected from taking of shellfish.

A. 
Commercial. No commercial shell fisherman and no person to whom a commercial permit has been issued by the Town of Islip shall take shellfish in that part of the Town bounded as follows:
(1) 
On the east by the Islip Town line; on the south by Oak Beach; on the north by the general south shoreline of Captree Island and Seganic Thatch; and on the west by the westerly shoreline or end of the Oak Island Lead and extending on a line northerly to the south line of the State Channel.
(2) 
West Gilgo Beach Lagoon.
B. 
General. No person shall take shellfish in that part of the Town lying south of the State Channel between the shoreline of Oak Island and a line distant 100 feet from the mean shoreline of such island.
C. 
Exception. Anything herein to the contrary not withstanding, during the months of January and February of each year, the area known as the "Lead" between Oak Beach and Oak Island shall be opened to commercial fishermen for shellfishing, subject, however, to all other provisions of this chapter.

§ 183-23 Exemptions for Oak Island residents.

Anything to the contrary notwithstanding, all residents of Oak Island holding noncommercial fisherman permits, their subtenants and guests shall have the right to take shellfish in the area described in § 183-22B, subject, however, to all other provisions of this chapter.

§ 183-24 Applications for buyer's permits.

A. 
Each commercial buyer's permit and buyer's helper permit shall be in the form prescribed by the Town Clerk and shall contain the matters set forth upon the application.
B. 
The original application shall be filed in the Town Clerk's office, and the duplicate application shall be filed in the Environmental Control Office.

§ 183-25 Nontransferability of buyer's permits.

A person to whom a commercial buyer's permit or buyer's helper permit has been issued shall not transfer, assign or allow any other person to use the permit.

§ 183-26 Buyer's permits to be carried; display of decal.

A. 
A commercial buyer's permit or buyer's helper permit shall be carried by a person dealing with shellfish for commercial purposes.
B. 
The decal issued with a commercial buyer's permit shall be prominently displayed and clearly visible on the motor vehicle for which such decal is issued.

§ 183-27 Expiration of buyer's permits.

Each commercial buyer's permit and buyer's helper permit shall be valid from the date of issuance and, unless sooner voided, suspended or revoked in accordance with § 183-30G, shall expire on the 31st day of December next ensuing.

§ 183-28 Restrictions on dealing with shellfish for commercial purposes.

A. 
At night. No person shall deal with shellfish for commercial purposes during the night.
B. 
Size restrictions. A person dealing with shellfish for commercial purposes shall be in possession of a device for the sorting of shellfish as to size, which device shall have openings of not less than one inch (2.54 centimeters).
C. 
Buying from person without local permit. No person shall buy or otherwise receive shellfish for commercial purposes from a person who has not obtained a commercial permit, commercial buyer's permit or buyer's helper permit.
D. 
Buying from person without state permit. No person shall sell or otherwise transfer shellfish for commercial purposes to a person who has not obtained a commercial buyer's permit, buyer's helper permit or New York State Department of Environmental Conservation permit authorizing the person to whom it is issued to deal with shellfish for commercial purposes.

§ 183-29 Returning certain marine animals to water.

Starfish, drills, periwinkles and conches, when taken, shall not be returned alive to Town lands under water.

§ 183-30 Penalties for offenses.

[Amended 1-6-1981 by Res. No. 19]
A. 
Taking, or dealing without permit. Any person convicted of taking shellfish without a permit, as required by § 183-2, or dealing with shellfish for commercial purposes without a permit, as required by § 183-19, shall be guilty of a violation and punishable as follows:
(1) 
For a first conviction, by a fine not less than $200 nor more than $500.
(2) 
For a second conviction or subsequent conviction within five years of a previous conviction for a like offense, by a fine of not less than $500 nor more than $1,000.
B. 
Taking on Sunday. Any person convicted of taking shellfish on Sunday in violation of § 183-12D shall be guilty of a violation and punishable as follows:
(1) 
For a first conviction, by a fine of not less than $50 nor more than $250.
(2) 
For a second conviction or subsequent conviction within five years of a previous conviction for a like offense, by a fine of not less than $250 nor more than $500.
C. 
Taking from uncertified or management areas. Any person convicted of taking shellfish from uncertified areas in violation of § 183-12A or violating prohibitions, restrictions or regulations with regard to taking shellfish from a management area in violation of § 183-18A or violating § 183-18B, shall be guilty of the following:
(1) 
A violation for a first conviction and punishable by a fine of not less than $250 nor more than $500 or by imprisonment for not more than 15 days, or by both such fine and imprisonment.
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, and punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.
(3) 
During the period December 15 through March 15 of each year, a violation will be punishable by a fine not exceeding $250. However, such penalty will be suspended if a winter conditional opening is authorized by the New York State Department of Environmental Conservation.
D. 
Taking at night. Any person convicted of taking shellfish from Town lands under water during the night in violation of § 183-12B shall be guilty of the following:
(1) 
A violation for a first conviction, punishable by a fine of not less than $100 nor more than $500 or by imprisonment for not more than 15 days, or by both such fine and imprisonment.
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.
E. 
Violation of size restrictions. Any person convicted of taking, buying, selling or possessing of shellfish of less than legal size in violation of § 183-13 or of violating § 183-10B shall be guilty of the following:
(1) 
A violation for a first conviction, and punishable by a fine of not less than $300 nor more than $500 or by imprisonment for not more than 15 days, or by both such fine and imprisonment.
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, and punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.
F. 
General penalty. Any person convicted of violating any provisions of this chapter, except as otherwise provided in § 183-30A through E, shall be guilty of the following:
(1) 
A violation for a first conviction, punishable by a fine of not less than $50 nor more than $200.
(2) 
A misdemeanor for a second conviction or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $200 nor more than $400 or by imprisonment for not less than three months nor more than six months, or by both such fine and imprisonment.
G. 
Suspension, revocation of permit. The Town Clerk, upon recommendation of the Commissioner of Environmental Control, may suspend or revoke any permit issued under this chapter to any person convicted of one or more violations of this chapter or to any person convicted of a crime, or to any partnership where any partner has been convicted of one or more violations of this chapter or convicted of a crime, or to any corporation if any person having a financial interest in the corporation is convicted of one or more violations of this chapter or convicted of a crime.