[HISTORY: Adopted by the Board of Trustees of the Village of Upper
Brookville 8-17-1976 by L.L. No. 2-1976.
Amendments noted where applicable.]
A.
The Village of Upper Brookville ("Village") finds that
freshwater wetlands are invaluable resources for flood protection, wildlife
habitat, open space, water resources and other benefits associated therewith
which, if preserved and maintained in an undisturbed, natural condition, constitute
important social, economic and aesthetic assets to existing and future residents
of the Village.
B.
It is the intent of the Village Trustees to protect the
residents of the Village by preserving, protecting and conserving freshwater
wetlands and the benefits derived therefrom, to prevent the despoliation and
destruction of freshwater wetlands and to regulate use and development of
such wetlands consistent with the general welfare of the Village pursuant
to Article 24 of the New York State Environmental Conservation Law.
C.
It is also the intent of the Village Trustees to promote
the public purpose and the health, safety and general welfare of present and
future residents of the Village by providing for the protection, proper maintenance
and use of wetlands, water bodies and watercourses located within the Village
by preventing or minimizing erosion due to flooding and stormwater runoff,
maintaining the natural groundwater supplies, protecting subsurface water
resources and providing valuable watersheds, preserving and protecting the
purity, utility, water retention capability, ecological functions and natural
beauty of all wetlands, water bodies, watercourses and other related natural
features of the terrain and by providing and protecting wildlife habitat.
The following terms, phrases, words and their derivatives shall have
the meanings given herein:
All lands within 100 feet, horizontally, of the vegetative boundary
of any freshwater wetland.
Includes the owner of the affected property, his agent or contract
vendee who files an application for a permit pursuant to this chapter.
The outer limit of vegetation specified in Subsections A and B and
the waters specified in Subsection C of the definition of "freshwater wetlands"
below.
Lands and waters lying within the boundaries of the Village, as shown
on the Freshwater Wetlands Map prepared by or for the State of New York and
filed with the Village pursuant to § 24-0301 of the New York State
Environmental Conservation Law or as shown on any freshwater wetland maps
the Village shall prepare, which contain any or all of the following:
Lands and submerged lands commonly called "marshes," "swamps," "sloughs,"
"bogs" and "flats" supporting aquatic or semiaquatic vegetation of the following
vegetative types:
Wetland trees, which depend upon seasonal or permanent flooding or sufficiently
waterlogged soils to give them a competitive advantage over other trees, including,
among others, red maple (Acer rubrum), willows (Salix spp.), black spruce
(Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica),
American elm (Ulmus americana) and larch (Larix laricina).
Wetland shrubs, which depend upon seasonal or permanent flooding or
sufficiently waterlogged soils to give them a competitive advantage over other
shrubs, including, among others, alder (Alnus spp.), buttonbush (Cephalanthus
occidentalis), bog rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne
calyculata).
Emergent vegetation, including, among others, cattails (Typha spp.),
pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra
virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis), wild
rice (Zizania aquatica), bur-reeds (Sparganium spp.), purple loosestrife (Lythrum
salicaria), swamp loosestrife (Decondon verticillatus) and water plantain
(Alisma plantago-aquatica).
Rooted, floating-leaved vegetation, including, among others, water lily
(Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar
spp.).
Free-floating vegetation, including, among others, duckweed (Lemna spp.),
big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).
Wet meadow vegetation, which depends upon seasonal or permanent flooding
or sufficiently waterlogged soils to give it a competitive advantage over
other open land vegetation, including, among others, sedges (Carex spp.),
rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides),
reed canary grass (Phalaris arundinacea), swamp loosestrife (Decondon verticillatus)
and spikerush (Eleocharis spp.).
Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum
spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata),
pitcher plant (Sarrancenia purpurea) and cranberries (Vaccinium macrocarpon
and V. oxycoccos).
Submergent vegetation, including, among others, pond weeds (Potamogeton
spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria
americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum
spp.), muskgrass (Chara ssp.), stonewort (Nitella spp.), waterweeds (Elodea
spp.) and water smartweed (Polygonum amphibium).
Lands and submerged lands containing remnants of any vegetation that
is not aquatic or semiaquatic that has died because of wet conditions over
a sufficiently long period, provided that such wet conditions do not exceed
a maximum seasonal water depth of six feet, and provided, further, that such
conditions can be expected to persist indefinitely, barring human intervention.
The member board established by Article 24 of the New York State
Environmental Conservation Law.
Includes the applicant, any person who is permitted to intervene
pursuant to Article 24 of the New York State Environmental Conservation Law,
the Village or an adjoining municipality within which is located the freshwater
wetland or adjacent area which is the subject of an application for a permit.
A freshwater wetlands permit for the conduct of a regulated activity.
Any corporation, firm, partnership, association, trust or estate,
one or more individuals and any unit of government or agency or subdivision
thereof.
The Planning Board of the Incorporated Village of Upper Brookville
designated by the Village to be responsible for administering the provisions
of this chapter and promulgating rules, regulations and procedures necessary
to implement and administer properly the provisions herein.
The presence in the environment of human-induced conditions or contaminants
in quantities or characteristics which are or may be injurious to humans,
vegetation, wildlife or property.
Any action resulting in direct or indirect physical impact on a freshwater
wetland, including but not limited to any regulated activity.
Any form of draining, dredging, excavation or removal of soil, mud,
sand, shells, gravel or other aggregate, either directly or indirectly; any
form of dumping, filling or deposition of any soil, stones, sand, gravel,
mud, rubbish or fill of any kind, either directly or indirectly; erecting
any structures, constructing roads, the driving of pilings or placing of any
other obstructions, whether or not changing the ebb and flow of the water;
and any form of pollution, including but not limited to installing a septic
tank, running a sewer outfall, discharging sewage treatment effluent or other
liquid wastes into or so as to drain into a freshwater wetland and any other
activity which substantially impairs any of the several functions served by
the freshwater wetlands or the benefits derived therefrom which are set forth
in § 24-0105 of the New York State Environmental Conservation Law.
A.
No person shall conduct a regulated activity in any freshwater
wetland or adjacent areas in the Village without first obtaining a permit
issued by the Planning Board.
B.
As otherwise legally permitted within the Village, the
depositing or removal of the natural products of freshwater wetlands and adjacent
areas, as enumerated in § 24-0701, Subdivision 3, of the New York
State Environmental Conservation Law, and agricultural activities within said
areas, as enumerated and defined in § 24-0701, Subdivision 4, of
the New York State Environmental Conservation Law, shall not be considered
regulated activities. In addition, public health activities, orders and regulations
of the Department of Health shall be excluded from regulated activities. This
agency shall notify the Planning Board, in writing, of the proposed activity
which it will conduct.
C.
If the Planning Board shall determine that an emergency
activity is immediately necessary to protect the health, safety and well-being
of any person or to immediately prevent substantial damage to personal or
real property, it may exempt such activity from regulation.
A.
Any person proposing, permitting or causing to be conducted
a regulated activity upon any freshwater wetland or adjacent area shall file
an application for a permit with the Village Clerk. The application shall
include a detailed description of the proposed activity, a map showing the
area of freshwater wetland directly affected, with the location of the proposed
activity thereon, and a current list of record owners of lands and claimants
of water rights within 100 feet of the property on which the regulated activity
is located.
B.
After submission of the completed application, the applicant
shall publish, at his expense, a notice of application, indicating that the
applicant intends to file an application, in two newspapers having a general
circulation in the area. The Planning Board may waive the publishing of the
notice of application and require the publication of the appropriate notice
of hearing.
C.
If no notice of objection has been filed by any party
in interest in response to the notice of application or if the Planning Board
finds that the proposed activity is of such a minor nature as not to affect
or endanger the balance of systems within the freshwater wetland, it may dispense
with a public hearing. If the Planning Board determines that a hearing is
not to be held, the Board shall publish, in the Village newspaper, its decision
setting forth its findings and reasons therefor.
D.
If a hearing is to be held it shall be scheduled no sooner
than 30 days and not later than 60 days after the receipt of the completed
application by the Village and the publishing of the notice of application.
The applicant shall publish the notice of hearing at his expense in two newspapers
having a general circulation in the area where the affected freshwater wetland
is located not more than 28 days nor less than 15 days prior to the date set
for the hearing.
E.
The applicant shall also send by certified mail, not
less than 15 days prior to the date set for the hearing, the notice of hearing
to owners of record of adjacent lands within 100 feet of the premises containing
the wetlands and known claimants to water rights which will be affected.
No permit shall be issued by the Planning Board pursuant to this chapter
unless it shall find that:
A.
The proposed regulated activity is consistent with the
policy of this chapter to preserve, protect and conserve freshwater wetlands
and the benefits derived therefrom, to prevent the despoliation and destruction
of freshwater wetlands and to regulate the development of such wetlands in
order to secure the natural benefits of freshwater wetlands, consistent with
the general welfare and beneficial economic, social and agricultural development
of the Village;
B.
The proposed regulated activity is consistent with the
Village's land use regulations;
C.
The proposed regulated activity is compatible with the
public health and welfare;
D.
The proposed regulated activity is reasonable and necessary;
and
E.
There is no reasonable alternative for the proposed regulated
activity on a site which is not a freshwater wetland or adjacent area.
A.
Any permit issued pursuant to this chapter may be issued
with conditions. Such conditions may be attached as are necessary to assure
the preservation and protection of affected freshwater wetlands and to assure
compliance with the policy and provisions of this chapter and the provisions
of the Planning Board's rules and regulations adopted pursuant to this
chapter.
B.
The Planning Board may require a performance bond in
such form and sureties as it deems necessary. Said bond shall guarantee compliance
with all provisions of this chapter and all other conditions and requirements
imposed on the approval of the permit.
C.
Operations conducted under the permit shall be open to
inspection at any time by the Building Inspector or Village Engineer. The
issuance of a permit by the Planning Board does not relieve the applicant
from obtaining all other necessary authorizations.
D.
The Planning Board may suspend or revoke a permit issued
pursuant to this chapter where it finds that the permittee has not complied
with any or all terms of such permit, has exceeded the authority granted in
the permit or has failed to undertake the project in the manner set forth
in the application.
F.
After a public hearing the Planning Board may adopt,
amend and repeal rules and regulations consistent with this chapter as it
deems necessary and proper to administer this chapter.
[Amended 9-19-2000 by L.L. No. 1-2000; 5-15-2007
by L.L. No. 3-2007]
A.
Any person who violates, disobeys or disregards any provision
of this chapter shall be liable for a civil penalty, not to exceed $5,000,
for every such violation to be assessed. Each and every day a violation continues
after written notice has been served on the violator by the Building Inspector
shall be deemed a separate violation.
B.
The Planning Board shall also have the power, following a hearing,
to direct a violator to cease violation of this chapter and to satisfactorily
restore the affected freshwater wetland to its condition prior to the violation
under the Board’s supervision.
C.
Any civil penalty or order issued by the Village shall be reviewable
pursuant to the Civil Practice Law and Rules.
D.
In addition to the above civil fine, any person who violates this chapter by performing a regulated activity on a freshwater wetland without a permit as required by § 119-3 shall be guilty of a violation pursuant to the Penal Law, punishable by a fine of not less than $5,000 nor more than $10,000 or a term of imprisonment of not less than 15 days nor more than six months, or both.
E.
The Planning Board shall have the right to seek equitable relief
to restrain any violation or threatened violation of any provisions of this
chapter.
A.
Any decision or order of the Planning Board may be reviewed:
(1)
By the Freshwater Wetlands Appeals Board in accordance
with Title 11 of Article 24 of the New York State Environmental Conservation
Law, provided that, within 30 days after service of such order or notice of
such decision, such review is commenced by the filing with the Freshwater
Wetlands Appeals Board a notice of review; and
(2)
Pursuant to Article 78 of the New York State Civil Practice
Law and Rules.
B.
The institution of a judicial proceeding to review a
determination or order of the Planning Board shall preclude the institution
of a proceeding before the Freshwater Wetlands Appeals Board to review such
a determination or order.
After a public hearing, the Board of Trustees may adopt a Freshwater
Wetlands Map indicating the boundaries of any freshwater wetlands in the Village,
as defined herein, provided that said Freshwater Wetlands Map is no less restrictive
than that filed by the State Department of Environmental Conservation. The
Board of Trustees may, after a public hearing, so amend, modify or update
an adopted Freshwater Wetlands Map as it deems necessary and proper to carry
out the intent of this chapter.
This chapter shall take effect upon either the filing with the Clerk
of the Village of a Freshwater Wetlands Map duly adopted by the Board of Trustees
or upon the filing with the Clerk of the Village of a Freshwater Wetlands
Map by the State Department of Environmental Conservation pursuant to § 24-0301
of the New York State Environmental Conservation Law, whichever occurs first.
