The Village Board of the Village of Tarrytown hereby adopts a new chapter,
entitled "The Wetlands and Watercourses Law of the Village of Tarrytown,"
and repeals L.L. No. 8-1985, and any and all amendments thereto.
This chapter is entitled "Wetlands and Watercourses Law."
It is the intent of the Village of Tarrytown that activities in and
around wetlands, watercourses and associated buffer areas be conducted in
conformance with the provisions of this chapter and in a manner which promotes
the preservation of wetlands, watercourses and associated buffer areas as
specified in the findings of fact as set forth herein, conforms with all applicable
building codes, sediment control regulations, and other applicable regulations;
and does not threaten public safety or the natural environment or cause nuisances
or adversely affect the natural functions of wetlands and watercourses by:
A. Impeding flood flows, reducing flood storage areas, or
destroying storm barriers, thereby resulting in increased flood heights, frequencies,
or velocities on other lands.
B. Increasing water pollution through location of domestic
waster disposal systems in wet soils; inappropriate siting of stormwater control
facilities; unauthorized application of fertilizers, pesticides, herbicides
and algaecides; disposal of solid wastes at inappropriate sites; placement
of unstabilized fills; or the disturbance or removal of wetland soils and
vegetation serving pollution and sediment control functions.
C. Increasing erosion and subsequent sedimentation.
D. Decreasing breeding, nesting and feeding areas for many
species of waterfowl and shorebirds, including those that are listed as "special
concern," "rare," "threatened" or "endangered."
E. Interfering with the exchange of nutrients needed by
fish and other forms of wildlife.
F. Decreasing habitat for fish, reptiles and amphibians,
and other forms of wildlife.
G. Adversely altering the recharge or discharge functions
of wetlands, thereby impacting groundwater or surface water supplies.
H. Significantly altering the wetland hydroperiod and thereby
causing either short- or long-term changes in wetland and watercourse community
composition, soils characteristics, nutrient recycling, or water chemistry.
I. Destroying sites valued for education and scientific
research, such as outdoor biophysical laboratories, living classrooms, and
training areas.
J. Interfering with public rights in navigable waters and
the recreation opportunities provided by wetlands and watercourses for hunting,
fishing, boating, hiking, birdwatching, photography, camping and other uses.
K. Destroying or damaging aesthetic and property values,
including significant public viewsheds.
L. Destroying or reducing undisturbed adjacent upland areas
surrounding wetlands and watercourses, which provide a protective buffer.
Words or phrases used in this chapter shall be interpreted as defined
below, and where ambiguity exists, words or phrases shall be interpreted so
as to give this chapter its most reasonable application in carrying out the
regulatory goals as set forth in the legislative findings:
APPLICANT
A person who files an application for a permit under this chapter
and who is either the owner of the land on which the proposed regulated activity
would be located, a contract vendee, a lessee of the land, the person who
would actually control and direct the proposed activity, or the authorized
agent of such person.
APPROVAL AUTHORITY
The municipal or 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 to the permit is established. The approval authority for
the Village of Tarrytown shall be the Planning Board or the Wetland Inspector.
AQUICULTURE
The cultivating and harvesting of products, including fish and vegetation,
that are produced naturally in freshwater wetlands and including the installation
of cribs, racks, and other in-water structures for cultivating these products,
but does not include filling, dredging, peat mining, clear-cutting, or the
construction of any buildings or any water-regulating structures such as dams.
CLEARANCE FORM
Written form issued by the Wetlands Inspector indicating whether
or not a permit is required.
CLEAR CUTTING
The removal of 20% or more of live woody vegetation during any consecutive
ten-year period within any wetland/watercourse and/or regulated adjacent area
(the regulated one-hundred-foot upland perimeter of a wetland boundary) located
on the subject property.
CREATION
To construct a new wetland, often by excavating and/or flooding land
not previously occupied by a wetland.
DAMS and WATER CONTROL MEASURES
Barriers used, or intended to, or which, even though not intended
in fact do, obstruct the flow of water or raise, lower, or maintain the level
of water.
DEPOSIT
To fill, grade, discharge, emit, dump or place any material, or the
act thereof.
DEVELOPMENT ACTIVITIES
Any building activity or mining operation; the making of any material
change in the use or intensity of use of any structure or land and the creation
or termination of rights of access or riparian rights, including without limitation
the following activities or uses:
A.
A change in type of use of structure or land or, if the ordinance or
rule divides uses into classes, a change from one class of use designated
in an ordinance or rule to a use in another class so designated;
B.
A material increase in the intensity of use of land or environment impacts
as a result thereof;
C.
Commencement of mining, excavation or material alteration of grade or
vegetation on a parcel of land, excluding environmental restoration activities;
D.
Material alteration of a shore, bank or floodplain of a river, stream,
lake, pond, or artificial body of water;
E.
Reestablishment of a use which has been abandoned for one year;
F.
Departure from the normal use for which development permission has been
granted, or material failure to comply with the conditions of an ordinance,
rule or order granting the development permission under which the development
was commenced or is continued.
DISCHARGE
The emission of any water, substance, or material into a wetland
or wetland buffer whether or not such substance causes pollution.
DOMINANT(S) or DOMINANCE
A dominant species is either the predominant plant species (i.e.,
the most conspicuous species occupying a vegetative unit) or a codominant
species (i.e., a species which is as prevalent as one or more other species,
considered collectively, that occupy most of the area within when two or more
species dominate a vegetative unit). Dominant species are considered to be
those with 20% or more areal coverage or spatial extent within the vegetative
unit or plant community.
DRAIN
To deplete or empty water by drawing off by degrees or in increments.
DREDGE
To excavate or remove sediment, soil, mud, sand, shells, gravel,
or other aggregate.
EXCAVATE
To dig out and remove any material from a wetland, watercourse or
wetland/watercourse buffer.
FACULTATIVE UPLAND SPECIES (FACU)
Plant species that usually occur in uplands at an estimated probability
of 67 to 99%, but may occasionally occur in wetlands at an estimated probability
of one to three percent.
FACULTATIVE WETLAND (FACW)
Plant species that usually occur in wetlands at an estimated probability
of 67 to 99%, but occasionally are found in uplands.
FRESHWATER WETLANDS MAP
The final freshwater wetlands maps for Westchester County promulgated
by the Commissioner of the New York State Department of Environmental Conservation
pursuant to subdivision 24-0301.5 of the New York State Freshwater Wetland
Act, or such map as has been amended or adjusted, and on which are indicated
the approximate locations of the actual boundaries of wetlands regulated pursuant
to Article 24 of the Environmental Conservation Law.
GRADING
To adjust the degree of inclination of the natural contours of the
land, including leveling, smoothing, and other modification of the natural
land surface.
GROWING SEASON
The portion of the year when soil temperatures are above biologic
zero (5° C.); the growing season for Westchester County is March through
October.
HYDRIC SOIL
A soil that is described in the Soil Survey of Putnam and Westchester
Counties, New York, (1994) as "somewhat poorly drained," "poorly drained"
or "very poorly drained." Under normal circumstances, hydric soils are inundated
or saturated to within 16 inches of the surface during the growing season.
Hydric soils exhibit diagnostic colors or mottled features as described in
the Corps of Engineers Wetlands Delineation Manual (Environmental Laboratory
Technical Report Y-87-1).
HYDROPHYTIC VEGETATION
Vascular plant species that are adapted to growing in inundated soils
or soils saturated within 18 inches of the surface for extended periods of
time during the growing season. Hydrophytic vegetation includes obligate wetland,
facultative wetland and in some cases facultative species, as defined in this
section.
MAJOR PROJECT (OR PROJECTS)
Any activity or activities which requires a permit under this chapter,
where the approval authority is the Planning Board. In situations where multiple
applications are involved for a specific project, if at least one activity
constitutes a "major project," as defined herein, then each proposed activity
for each multiple application concerning such specific project shall be treated
as a major project, notwithstanding anything contained herein to the contrary.
MATERIAL
Liquid, solid, or gaseous substances, including but not limited to
soil, silt, gravel, rock, clay, peat, mud, debris, and refuse; any organic
or inorganic compound, chemical agent or matter; sewage sludge or effluent;
or industrial or municipal solid waste.
MINOR PROJECT (OR PROJECTS)
An activity or activities requiring a wetlands permit where the approval
authority is the Village Wetlands Inspector and where said activity is to
be performed without the use of mechanical earthmoving equipment and will
not disturb wetlands, water bodies, adjacent areas or natural drainage systems.
A minor project includes any activity which is to be performed on an individual
residential single-family building lot containing an existing residence (for
which, in this instance, the use of mechanical earthmoving equipment shall
be permitted); provided, however, that such activities shall not take place
within any portion of any wetlands, water bodies or natural drainage systems
and provided also that such activities do not require the excavation of more
than 100 cubic yards or disturb more than 5,000 square feet of any adjacent
areas.
MITIGATION PLAN
The plan prepared by the applicant in accordance with §
302-11 when the applicant has demonstrated that either losses or impacts to the wetland or wetland buffer are necessary and unavoidable and have been minimized to the maximum extent practicable.
PERMIT
That form of written Village approval required by this chapter for
the conduct of a regulated activity within a wetland, watercourse or wetland/watercourse
buffer.
POLLUTION
Any harmful thermal effect or the contamination or rendering unclean
or impure of any wetland or waters by reason of erosion, or by any waste or
other materials discharged or deposited therein.
PROJECT
Any proposed or ongoing action which may result in direct or indirect
physical or chemical impact on a wetland or watercourse, including but not
limited to any regulated activity.
REMOVE
To dig, dredge, suck, bulldoze, dragline, blast, or otherwise excavate
or grade, or the act thereof.
RENDERING UNCLEAN OR IMPURE
Any alteration of the physical, chemical, or biological properties
of any wetland or waters, including but not limited to change in odor, color,
turbidity or taste.
RESTORATION
To reclaim a disturbed or degraded wetland to bring back one or more
functions that have been partially or completely lost by such actions as draining
or filling.
SELECTIVE CUTTING
Any cutting of trees within the boundaries of a wetland or wetland/watercourse
buffer that is not "clear-cutting" as defined in this section.
STRUCTURE
Anything constructed or erected, the use of which requires location
on or in the ground or attachment to something having location on the ground,
including but not limited to buildings, tennis courts, and swimming pools.
UPLAND SPECIES
Plant species that, under natural conditions, almost always occur
in uplands at an estimated probability of 99% or greater. The less than one
percent probability of upland species occurring in wetlands is attributed
to unnatural circumstances (i.e., occurrences that are the result of human-induced
disturbances and transplants). Upland Species UPL for New York State are listed
in "Wetland Plants of the State of New York 1986," published by the U.S. Fish
and Wildlife Service in cooperation with the National and Regional Wetland
Plant List Review Panels, and as updated from time to time.
VERNAL POOL
An open area of surface water formed in a shallow basin within an
upland that retains a minimum depth of six inches for three to four months
during the growing season (usually March through June) and contain amphibians
(adults, egg masses, or larval stages) during the growing season. Vernal pools
are devoid of fish and are the exclusive breeding habitats of several amphibians
that are becoming increasing rare throughout the Northeast.
WATER TABLE
The zone of saturation at the highest average depth during the wettest
season.
WATERCOURSE
Any natural or artificial, intermittent, seasonal or permanent, and
public or private water body or water segment. A water body is intermittently,
seasonally or permanently inundated with water and contains a discernible
shoreline and includes ponds, lakes and reservoirs. A watercourse includes
rivulets, brooks, creeks, streams, rivers and other waterways flowing in a
definite channel with bed and banks and usually in a particular direction.
WETLAND
All areas that comprise hydric soils and/or are inundated or 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 Corps of Engineers Wetlands Delineation Manual
(Environmental Laboratory Technical Report Y-87-1). Wetland areas include
vernal pools, wet meadows, marshes, swamps, bogs and similar wet areas.
WETLAND/WATERCOURSE BUFFER
The area of land extending 150 feet horizontally away from and parallel
to the outermost boundary of a wetland and/or point of mean high water of
a watercourse. The wetland/watercourse buffer may be greater than 150 feet
where designated by either the Commissioner of the New York State Department
of Environmental Conservation or the local approval authority. The wetland/watercourse
buffer provides several ecological benefits to the wetlands/watercourse and
some degree of protection from human encroachment associated with development.
The wetland/watercourse buffer shall be subject to the regulations for wetlands
as defined in this chapter.
WETLAND INSPECTOR
The administrative official appointed by the Village Board to fulfill
the responsibilities set forth in this chapter and having special knowledge
by reason of education and work related to the identification, delineation,
functional assessment and management of wetlands, including a detailed knowledge
of wetland flora and fauna and wetland hydrology to a degree acceptable to
the approval authority.
WETLAND PLANTS OF THE STATE OF NEW YORK
Those plant species listed in the National List of Plant Species
That Occur In Wetlands: Northeast (1988), that are classified as facultative,
or facultative wetland, obligate wetland species, developed by the U.S. Department
of the Interior, Fish and Wildlife Service for the National Wetland Inventory,
as amended and updated from time to time.
WETLAND SCIENTIST
A person having specialized or expert knowledge of the physical,
chemical and biological sciences related to the identification, delineation
and structural and functional ecology of wetlands and associated upland communities,
including flora and fauna, and of methods to delineate and describe wetland
and watercourse resources, communities and habitats. This person must possess
a minimum of two years' field experience in wetland/watercourse delineation
and wetland/watercourse report preparation and must hold at least a bachelor's
degree, with a minimum of 30 semester hours (credits), or equivalent in biology,
physical science and chemistry, with a minimum of eight semester hours (credits),
or equivalent, in botany, including field identification of animal and plant
species. Individuals who do not meet the above minimum qualifications but
who possess at least 10 years' experience identifying and mapping native
vegetation are qualified if they have completed at least 12 semester hours
(credits), or equivalent, in botany, including field identification of animal
and plant species.
The Planning Board shall either grant, conditionally grant or deny a
permit application within 60 days of the close of the public hearing; provided,
however, that the Planning Board has whatever additional information or documentation
it required; the Planning Board shall then render its decision within 60 days
of its receipt of such matter.
A. In granting, denying, or conditioning any permit, the Planning Board shall evaluate wetland and watercourse and adjacent (buffer) area functions and the role of each, as the case may be, in the hydrologic and ecological system in which it is part, and shall determine the impact of the proposed activity upon public health, safety and welfare, flora and fauna, water quality, and additional wetland and watercourse functions listed in §
302-3 of this chapter. Regardless of the level of the impact of the proposed activity, avoidance of any direct or indirect impacts shall be the primary criteria used to judge the appropriateness of the action. The Planning Board shall consider the following factors and shall issue written findings with respect to:
(1) The overall direct and indirect impact(s) of the proposed activity, and existing and reasonably anticipated similar activities, upon neighboring land uses and wetland, watercourse and adjacent (buffer) area functions as set forth in §
302-3 of this chapter, including but not limited to the:
(a) Infilling of a wetland, watercourse or other modification
of natural topographic contours;
(b) Disturbance or destruction of natural flora and fauna;
(c) Influx of sediments or other materials causing increased
water turbidity or substrate aggradation;
(d) Removal or disturbance of wetland or watercourse soils;
(e) Reduction in wetland or watercourse ground- or surface
water supply;
(f) Interference with wetland or watercourse water circulation;
(g) Changes in the amount or type of wetland or watercourse
nutrients;
(h) Physical and chemical changes to the wetland or watercourse
water supply;
(i) Destruction of natural aesthetic values;
(j) Reduction in public recreational or educational use and
access; and
(k) Impact to, and alteration or disturbance of, adjacent
(buffer) areas associated with wetlands and watercourses.
(2) Any existing wetland, watercourse and adjacent (buffer)
area impact(s) and the cumulative effect of reasonably anticipated future
activities in the wetland, watercourse or adjacent (buffer) area subject to
the application;
(3) The impact of the proposed activity and reasonably anticipated
similar activities upon flood flows, flood storage, storm barriers, shoreline
protection, and water quality;
(4) The potential effect of flooding, erosion, hurricane
winds, soil limitations, and other hazards, and possible losses to the applicant
and subsequent purchasers of the land;
(5) The adequacy of water supply and waste disposal for the
proposed use;
(6) Consistency with federal, state, county and Village comprehensive
land use plans, and regulations;
(7) The availability of preferable or environmentally compatible
alternative locations on the subject parcel; and
(8) The demonstration by the applicant that any direct and
indirect impact(s) are necessary and unavoidable and have been minimized to
the maximum extent practicable for the purposes of this chapter. Wetland,
watercourse and adjacent (buffer) area impacts will be deemed necessary and
unavoidable only if the applicant satisfies all of the following criteria
as determined by the Planning Board:
(a) The proposed activity is compatible with the public health
and welfare.
(b) There is no reasonably feasible on-site alternative to
the proposed activity, in the judgment of the Planning Board, including reduction
in density, change in use, revision of road and lot layout, revision in the
location of buildings, structures, driveways and other site construction and
land-altering activities and/or related site planning considerations, that
could otherwise reasonably accomplish the applicant's objectives.
(c) There is no reasonably feasible alternative to the proposed
activity on another site or site location that is not a wetland, watercourse
or adjacent (buffer) area as defined herein.
B. The approval authority must deny a permit if:
(1) The applicant has not demonstrated that all reasonable
alternatives have been explored; that reasonable alternatives exist which
could avoid or reduce potential losses or impacts to the wetland, watercourse
or adjacent (buffer) area; or that any unavoidable losses or impacts to wetlands,
watercourses, and adjacent (buffer) areas have not been minimized to the maximum
extent practicable.
(2) The proposed activity may threaten public health, safety
or welfare; results in fraud, causes nuisances, impairs public rights to the
enjoyment and use of public lands and waters; threatens a special concern,
rare or endangered plant or animal species; violates pollution control standards;
or violates any other Village, state, city or federal regulations or laws;
or
(3) Both the affected landowner and the local government
have been notified by a duly filed notice in writing that the state or any
agency or political subdivision of the state is in the process of acquiring
the wetland, watercourse or adjacent area by negotiation or condemnation with
the following provisions:
(a) The written notice must include an indication that the
acquisition process has commenced, such as that an appraisal of the property
has been prepared or is in the process of being prepared.
(b) If the landowner receives no offer for the property within
one year of the permit denial, this prohibition shall lapse. If its negotiations
with the applicant are broken off, the state or any agency or political subdivision
must, within six months of the end of negotiation, either issue its findings
and determination to acquire the property pursuant to § 204 of the
Eminent Domain Procedure Law or issue a determination to acquire the property
without public hearing pursuant to § 206 of the Eminent Domain Procedure
Law, or this prohibition shall lapse.
C. The approval authority shall give consideration to activities
that must have a shoreline or wetland location to function and that will have
as little impact as possible upon the wetland, watercourse and/or the watercourse/wetland
adjacent (buffer) area. In general, permission will not be granted for dredging
or ditching solely for the purpose of draining wetlands or watercourses, controlling
mosquitoes, creating ponds, constructing industrial facilities, providing
soil and dump sites, or building roads, driveways or buildings or structures
that may be located elsewhere. All reasonable measures must be taken to minimize
all direct and indirect impacts upon the wetland, watercourse and adjacent
(buffer) area.
D. The Planning Board shall require preparation of a mitigation plan by the applicant pursuant to §
302-11 when the Planning Board has determined that all alternatives have been explored and that wetland, watercourse and buffer impacts are necessary and unavoidable and have been minimized to the maximum extent practicable. In the evaluation of the least environmentally damaging practicable alternatives, mitigation may be used as a means of reducing environmental impacts; a mitigation wetland is designed to replace lost wetland acreage and functions.
Any person, upon a showing of extraordinary hardship caused by the provisions
of this chapter on development in the wetland, watercourse or adjacent (buffer)
areas, may apply to the Zoning Board of Appeals for a variance from this chapter.
Such variance may be granted only if the applicant establishes that:
A. Denial of such variance would result in an extraordinary
hardship, as distinguished from an inconvenience, if the provisions of this
chapter are literally enforced. An applicant shall be deemed to have established
the existence of extraordinary hardship only if the applicant demonstrates,
based on specific facts, that the subject property does not have any beneficial
use if used for its present use or developed as authorized by the provisions
of this chapter, and that this inability to have a beneficial use results
from unique circumstances peculiar to the subject property which:
(1) Do not apply to or affect other property in the immediate
vicinity;
(2) Relate to or arise out of the characteristics of the
subject property rather than the personal situation of the applicant; and
(3) Are not the result of any action or inaction by the applicant
or the owner or predecessors in title, including any transfer of contiguous
lands which were previously in common ownership; or
B. There is a compelling public need for development of
the parcel in question based upon one of the following:
(1) The proposed development will serve an essential health
or safety need of the municipality such that the public benefits from the
proposed use override the importance of the protection of the wetland, watercourse
or adjacent (buffer) area as established in this chapter, that the proposed
use is required to serve existing needs of the residents, and that no feasible
alternatives exist outside the wetland, watercourse or adjacent (buffer) area
to meet such established public need; or
(2) The proposed development constitutes an adaptive reuse
of an historic resource and said reuse is necessary to ensure the integrity
and continued protection of the designated historic resource.
C. Additional findings required: An application for a hardship
variance to permit development on, near, or in a wetland, watercourse or adjacent
(buffer) area shall be approved only if the Zoning Board of Appeals specifically
finds that:
(1) The proposed development will not be materially detrimental
or injurious to other properties or improvements in the area in which the
subject property is located, increase the danger of fire or flood, endanger
public safety or result in substantial impairment of the resources of the
wetland, watercourse or adjacent (buffer) area;
(2) The waiver will not be inconsistent with the purposes,
objectives or the general spirit and intent of this chapter; and
(3) The variance is the minimum relief necessary to relieve
the extraordinary hardship established by the applicant.
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A variance granted under the provisions of this chapter by the Zoning
Board of Appeals shall not constitute an approval of the entire development
proposal, nor shall it constitute a variance of any other requirements contained
within any other applicable local, county or state laws or ordinances or regulations.
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No permit granted pursuant to this chapter shall remove an applicant's
obligation to comply in all respects with the applicable provisions of any
other federal, state, or Village law or regulation, including but not limited
to the acquisition of any other required permit or approval.
All permit application and review fees and escrow deposits shall be in an amount set forth in the fee schedule established by resolution of the Village Board and in accordance with §
305-58 of the Village Code.
In order to carry out the purposes and provisions of this chapter, and
in addition to the powers specified elsewhere in this chapter, the approval
authority shall have the following powers:
A. To do any and all things necessary or convenient to carry
out the policy and intent of this chapter;
B. To consult or contract with expert persons or agencies
in reviewing a permit application; and
C. To hold hearings and subpoena witnesses in the exercise
of its powers, functions, and duties provided for by this chapter.
Any determination, decision or order of the approval authority may be
judicially reviewed by the applicant or any other aggrieved party by the commencement
of an action pursuant to Article 78 of the Civil Practice Law and Rules of
the State of New York, within 30 days after the date of the filing of the
determination, decision or order of such approval authority with the Clerk
of the Village of Tarrytown and/or county.
If any clause, sentence, paragraph, section or part of this chapter
or the application thereof to any person or circumstances shall be adjudged
by any court of competent jurisdiction to be invalid, such order or judgment
shall be confined in its operation to the controversy in which it was rendered
and shall not affect or invalidate the remainder of any part thereof to any
other person or circumstances and, to this end, the provisions of each section
of this chapter are hereby declared to be severable.
This chapter shall take effect immediately upon filing in the office
of the Secretary of the State of New York in accordance with the provisions
of the Municipal Home Rule Law.