[HISTORY: Adopted by the Board of Trustees of the Village of Tarrytown 12-15-2003
by L.L. No. 13-2003. Amendments noted where applicable.]
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."
A.
The Village Board of the Village of Tarrytown has determined
that the public interest, health, safety and the economic and general welfare
of the residents of the Village will be best served by providing for the protection,
preservation, proper maintenance and use of its ponds, lakes, reservoirs,
water bodies, rivers, streams, watercourses, wetlands, natural drainage systems
and adjacent land areas from encroachment, spoiling, pollution or elimination.
B.
The Village Board finds that growth, the spread of development
and increasing demands upon natural resources have the potential of encroaching
upon, despoiling, polluting or eliminating many of the wetlands, ponds and
streams, watercourses, rainfall-drainage systems and water-retention areas
and other natural resources in the Village and associated processes which,
if preserved, constitute important physical, economic, social, aesthetic,
ecological and recreational assets to the Village and its present and future
residents.
C.
In their natural condition and state, wetlands and watercourse
are valuable natural resources and may serve multiple functions, including
but not limited to:
(1)
Removing pollutants from surface waters by trapping sediment,
removing nutrients and detoxifying chemicals;
(2)
Recharging groundwater, including aquifers, and surface
waters, thereby maintaining stream flows needed by plants and animals to survive;
(3)
Controlling flooding by storing and then slowly releasing
stormwater runoff;
(4)
Stabilizing shorelines by protecting against erosion
caused by stream currents and waves;
(5)
Providing unique or essential habitat for diverse fish
and wildlife species, including many of those on the New York State and federal
lists of special concern, threatened, rare and endangered species;
(6)
Supporting unique vegetative and biotic associations
specifically adapted for survival in low-oxygen environments and/or brackish
or salt water;
(7)
Providing areas of comparatively high plant productivity
which support wildlife diversity and abundance;
(8)
Providing open space and visual relief from intense development
in urbanized and growing areas;
(9)
Providing recreational opportunities, including fishing,
nature study, hiking and wildlife watching;
(10)
Serving as outdoor laboratories and living classrooms
for the study and application of biological, natural and physical sciences;
(11)
Protecting and maintaining stability of stream and watercourse
channels, shorelines and banks, thereby controlling and reducing erosion,
flooding and related property damage, protecting reservoirs and watersheds
vital to the community and to the water supply of the county and New York
City.
D.
In addition, sufficiently wide naturally vegetated wetland
buffers improve water quality by filtering out non-point source pollutants
(polluted stormwater), lower stream temperatures, serve as visual and noise
barriers for wildlife, control erosion, lessen impacts from flooding, provide
transitional habitats and improve floral and faunal habitat diversity.
E.
Considerable acreage of these important natural resources
has been lost or impaired by draining, dredging, filling, excavating, building,
polluting, and other acts inconsistent with the natural uses of such areas.
Loss or impairment of wetlands and their ecosystems can cause or aggravate
floodings, erosion, degradation and diminution of water supply for drinking
and waste treatment. Remaining wetlands are in jeopardy of being lost, despoiled,
or impaired by such acts, contrary to public safety and welfare.
F.
It is, therefore, the policy of the Village of Tarrytown
to protect its citizens, including future generations, by preventing the despoliation
and destruction of wetlands and watercourses while taking into account varying
ecological, water quality, economic, recreational, and aesthetic values. Activities
that may damage the functions or cause the loss of wetlands and watercourses
should be avoided.
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.
A.
Applicability. This chapter shall apply to all land defined as "wetland," "watercourse" or "wetland/watercourse buffer" in § 302-6. This chapter establishes those activities which must be regulated due to the potential adverse effects of such activities.
B.
Rules for establishing and interpreting wetland boundaries.
The boundaries of a wetland or watercourse ordinarily shall be determined
by field investigation and delineation by a qualified environmental professional
and subsequent survey by a licensed land surveyor unless the last is waived
by the approval authority. The approval authority may consult, and/or may
require the applicant to consult, with the Village's Wetland Scientist
and/or additional biologists, hydrologists, soil scientists, ecologists/botanists,
or other experts as necessary to make this determination of wetland boundaries.
The Planning Board is the ultimate authority for determination of wetland
or watercourse boundaries.
C.
Grandfathered projects. The provisions of this chapter
shall not apply to any land use, improvement or development for which a final
environmental impact statement has been prepared, accepted as complete by
the lead agency, the public hearing (if any) was closed and the public comment
period has expired prior to the effective date of this chapter.
D.
Current projects. A regulated activity that was approved
prior to the effective date of this chapter or/and to which significant economic
resources have been committed but which is not in conformity with the provisions
of this chapter may be continued subject to the following:
(1)
All such activities shall continue to be governed by
the laws of the Village in effect at the time of approval.
(2)
No such activity shall be expanded, changed, enlarged,
or altered in such a way that increases its nonconformity without a permit.
(3)
If a nonconforming activity is discontinued for six consecutive
months, any resumption of the activity shall conform to this chapter.
(4)
If any nonconforming use or activity is destroyed by
human activities or a natural catastrophe, it shall not be resumed except
in conformity with the provisions of this chapter.
(5)
Activities or adjuncts thereof that are or become nuisances
shall not be entitled to continue as nonconforming activities.
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:
See "wetland/watercourse buffer."
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.
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.
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.
The outer limit of the soils and/or vegetation as defined under "wetland."
Written form issued by the Wetlands Inspector indicating whether
or not a permit is required.
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.
To construct a new wetland, often by excavating and/or flooding land
not previously occupied by a wetland.
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.
To fill, grade, discharge, emit, dump or place any material, or the
act thereof.
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 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;
A material increase in the intensity of use of land or environment impacts
as a result thereof;
Commencement of mining, excavation or material alteration of grade or
vegetation on a parcel of land, excluding environmental restoration activities;
Material alteration of a shore, bank or floodplain of a river, stream,
lake, pond, or artificial body of water;
Reestablishment of a use which has been abandoned for one year;
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.
The emission of any water, substance, or material into a wetland
or wetland buffer whether or not such substance causes pollution.
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.
To deplete or empty water by drawing off by degrees or in increments.
To excavate or remove sediment, soil, mud, sand, shells, gravel,
or other aggregate.
To dig out and remove any material from a wetland, watercourse or
wetland/watercourse buffer.
Plant species that can occur with equal frequency in uplands and
wetlands.
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.
Plant species that usually occur in wetlands at an estimated probability
of 67 to 99%, but occasionally are found in uplands.
See "deposit."
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.
To adjust the degree of inclination of the natural contours of the
land, including leveling, smoothing, and other modification of the natural
land surface.
The portion of the year when soil temperatures are above biologic
zero (5° C.); the growing season for Westchester County is March through
October.
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).
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.
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.
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.
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.
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.
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.
See "applicant."
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.
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.
To dig, dredge, suck, bulldoze, dragline, blast, or otherwise excavate
or grade, or the act thereof.
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.
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.
Any cutting of trees within the boundaries of a wetland or wetland/watercourse
buffer that is not "clear-cutting" as defined in this section.
Article 8 of the New York State Environmental Conservation Law and
6 NYCRR Part 617.
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.
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.
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.
The zone of saturation at the highest average depth during the wettest
season.
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.
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.
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.
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.
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.
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.
A.
All applications for any permit issued by the Building
Department, Department of Public Works, Antenna Review Board, Village Board,
Planning Board, or Zoning Board of Appeals of the Village of Tarrytown must
be accompanied by an authorized wetland/watercourse clearance form. An applicant
must provide sufficient information to enable the Wetland Inspector or other
authorized representative to properly determine if the proposed activity is
an allowable activity, as defined herein, or use that does not also require
an activity permit; is a prohibited activity; or is a regulated activity or
use which requires an activity permit as issued by the Planning Board in accordance
with the standards and procedures set forth herewith. No permits, certificates
of occupancy, or temporary certificates of occupancy may be issued without
prior approval of the Planning Board for any project involving a wetland/watercourse
permit.
B.
False or misleading statements or information provided
in a clearance form or to the approval authority shall result in the invalidation
of any authorization. The applicant shall be subject to the penalties and
sanctions set forth in this chapter for any activities conducted which would
have otherwise required a wetland/watercourse activity permit.
C.
The Wetland Inspector or other authorized representative
may require an applicant to provide additional information, including but
not limited to a qualified wetland delineation, report and survey, to assist
in making such a determination, and may further defer the making of said determination
to the Planning Board.
D.
Upon submission of a completed clearance form by an applicant,
the Wetland Inspector or other authorized representative must determine one
of the following, provided the proposed activity is not prohibited pursuant
to this chapter:
(1)
That the proposed activity or use is an allowable activity
or use pursuant to this chapter, and no wetland/watercourse permit is required.
The Wetland Inspector shall sign and issue a wetlands/watercourse clearance
form indicating same.
(2)
That the proposed activity or use does not impact or
occur within a wetland/watercourse or adjacent (buffer) area, and no wetland/watercourse
permit is required. The Wetland Inspector shall sign and issue a wetlands/watercourse
clearance form indicating same.
(3)
That a wetland/watercourse permit is required in accordance
with the standards and procedures set forth in this chapter.
A.
Allowable activities not requiring permit. The following
activities shall be permitted as-of-right within a wetland, watercourse, or
wetland buffer, and do not require a wetland/watercourse permit to the extent
that they are not prohibited by this or any other ordinance, law, local law,
rule or regulation, and to the extent that they do not constitute a pollution
or erosion hazard or interfere with proper drainage, and provided they do
not require structures, grading, fill, draining, or dredging. A clearance
form must be obtained before any activity is commenced.
(1)
Normal ground maintenance of existing landscaped areas,
including mowing, trimming of existing vegetation and removal of dead or diseased
vegetation around a residence, excluding the use of fertilizers, pesticides
and herbicides. Expansion or enlargement of said areas is a regulated activity.
(2)
Selective cutting, as defined in § 302-6, provided stumps are left in place and work is accomplished without the assistance of any motorized vehicles.
(3)
Repair of "in kind" walkways, terraces, patios, fences,
walls, driveways and roadways, in-ground pools and tennis courts, provided
that the height, size and/or spatial extent (i.e., no increase in the area
beyond the existing footprint) of the affected area does not change and appropriate
erosion controls are maintained as may be required by the Wetlands Inspector.
(4)
Public health activities, orders, and regulations of
the Westchester County Department of Health and/or the New York State Department
of Health for emergencies; only with notification to the Planning Board.
(5)
Agricultural activities as set forth in ECL § 24-0701(4).
(6)
"In kind" restoration of preexisting structures partially
or entirely destroyed by casualty loss after the effective date of this chapter,
provided that such in kind restoration occurs within six months of the date
of loss.
(7)
Construction and repair of sluices and culverts by the
Public Works Department in accordance with § 140 of the New York
State Highway Law.
(8)
Maintenance, repair, replacement or rehabilitation of
existing public structures or facilities.
B.
Prohibited activities. All activities that are not specifically
permitted or regulated by permit shall be prohibited. Prohibited activities
include but are not limited to the following:
(1)
Placement of a sewage disposal tank or plant or septic
field within a wetland or watercourse;
(2)
Direct discharge of untreated stormwater into a wetland
or watercourse;
(3)
The placement of aboveground or underground chemical
storage facilities or bulk petroleum storage tanks within a wetland, watercourse
or adjacent buffer area; and/or
(4)
Deposit or fill consisting of construction and demolition
materials, asphalt or other materials within a wetland, watercourse or adjacent
buffer area.
C.
Regulated activities, Wetland Inspector-issued permits.
(1)
The following regulated activities shall require a permit
as issued by the Wetland Inspector:
(a)
All authorized regulated activities pursuant to an approval
granted by the Planning Board.
(b)
Deck, porch or fence accessory to a single-family residence,
utilizing hand-dug support posts, provided no machine activity or grading,
and excess fill is removed or spread under deck, porch or fence and stabilized.
(c)
Swimming pools accessory to a single-family residence
located no closer than 50 linear feet to a wetland or watercourse, including
associated grading.
(d)
Terrace or patio accessory to a single-family residence,
with a ground footprint area of less than 500 square feet and located no closer
than 50 linear feet to a wetland or watercourse, including associated grading.
(e)
Repair of existing septic disposal facilities.
(f)
Permitted single-family residential building additions,
structural alterations, replacements, or detached accessory structures not
exceeding a ground footprint area of 600 square feet and located no closer
than 50 linear feet to a wetland or watercourse, including associated grading,
provided associated grading or land disturbance is less than 10,000 square
feet in spatial extent and maximum fill or cut is limited to no more than
an increase or decrease of two feet from the elevation of existing grade.
(g)
Permitted single-family residential accessory uses located
no closer than 100 linear feet to a wetland or watercourse, including associated
grading, provided associated grading or land disturbance is less than 10,000
square feet in spatial extent and maximum fill or cut is limited to no more
than an increase or decrease of two feet from the elevation of existing grade.
(h)
Any activity requiring Planning Board review and approval
which the Planning Board duly refers to the Wetlands Inspector for disposition,
including any conditions thereto.
(2)
At the discretion of the Wetlands Inspector, the review and approval of any of the regulated activities set forth in Subsection C(1) above may be referred to the Planning Board for its review and action.
(3)
Appeals of decision by the Wetlands Inspector shall be made to the Planning Board in writing within 30 days. The Planning Board may review all appeals in accordance with the procedures utilized for mandated Planning Board approval noted in Subsection D, Regulated activities, activities requiring Planning Board approval.
D.
Regulated activities, activities requiring Planning Board
approval.
(1)
The following regulated activities shall require approval
by the Planning Board prior to the issuance of a permit by the Wetland Inspector:
(a)
Any regulated activity in a wetland or watercourse proper, except as set forth in Subsection A, Allowable activities not requiring permit, of this section.
(b)
Any regulated activity in a wetland, watercourse or buffer area not delegated to the Wetland Inspector for review and approval as set forth in Subsection C, Regulated activities, of this section.
(c)
All regulated activities ancillary to a corresponding
application to the Planning Board for site development plan approval, special
permit approval or subdivision approval.
(d)
All non-residential development activities in wetlands,
watercourses or buffer areas.
(e)
All new single-family residential development on an undeveloped
or vacant parcel, including all principal and accessory site improvements,
land uses, buildings and structures in or affecting wetlands, watercourses
or buffer areas.
(2)
The Planning Board, upon findings that a proposed action is consistent with the activities as set forth in Subsection C, Regulated activities, Wetland Inspector-issued permits of this chapter, may refer any regulated activity subject to its review and approval for disposition by the Wetland Inspector, and may attach conditions thereto.
A.
Permit procedures. Where any alteration or activity is proposed on any lot which is within or contains within it a wetland, watercourse or wetland/watercourse buffer, the Village's Wetland Inspector must determine whether such an area is subject to the regulations set forth herein and a clearance form and/or permit obtained. The initial burden of proof and expense shall be upon the applicant to verify the presence and/or extent of a wetland, watercourse or buffer on the subject property. The finite areas of wetlands, watercourses and/or wetland/watercourse buffers shall ultimately be determined by the Planning Board pursuant to the criteria set forth herein after consultation with the Village's Wetland Inspector. All costs incurred by the Village for purposes of review and verification in accordance with this chapter are to be borne by the applicant in accordance with this chapter, SEQRA and/or § 305-58 et seq.
B.
Permit application contents for minor projects.
(1)
Where an applicant proposes a minor project that is not referred to the Planning Board by the Village's Wetland Inspector, application submission requirements as set forth in Subsection C may be waived in part, at the discretion of the Village Wetlands Inspector and with the approval of the Planning Board, if all of the following conditions are met:
(a)
Request for utilization of this process shall be in writing
and clearly state the reasons in support of such request in order to allow
the Wetlands Inspector to determine that the granting of any such request
is no less protective of wetlands, watercourses and adjacent (buffer) areas.
(b)
The proposed activity, taken as a whole, must constitute
a Type II action pursuant to SEQRA.
(c)
The Village Wetlands Inspector must report to the Planning
Board on each minor application received and the basis for the proposed determination.
(2)
All required fees and escrow account procedures shall apply in accordance with this chapter and § 305-58.
(3)
The Planning Board may terminate this expedited permit
process at any time and require the full processing of the application at
its discretion.
C.
Wetland/watercourse permit application contents. No regulated
activity shall be conducted without the issuance of a written permit from
the approval authority. Sixteen copies of the application for a permit together
with a filing fee and escrow deposit shall be made to the Secretary to the
Planning Board on forms furnished by the Village before any activity is conducted
and must include the following items.
(1)
Name, address and telephone number of the applicant and/or
owner (if the applicant is not the owner, the affidavit of the owner must
be attached).
(2)
Street address and tax map designation of the property
along with an accurate certified property and land survey.
(3)
Statement of proposed work and purpose thereof, and an
explanation why the proposed activity cannot be located at another site, including
an explanation of how the proposed activity is dependent on wetlands, watercourses
or other water resource(s).
(4)
A list of the names and addresses of property owners,
along with tax map identification addresses, of properties within 500 feet
of the boundaries of the property that is the subject of this application.
The list must include the names and addresses of the owners of record of lands
adjacent to the wetland or watercourse and wetland/watercourse buffer in which
the project is to be undertaken which relate to any land within 500 feet of
the boundary of the property on which the proposed regulated activity would
be located.
(5)
Project location map, showing the subject property as
a parcel centered within adjacent parcels within 500 feet, surrounding zoning,
named streets and water-related resources, and having a scale of no less than
one inch equals 400 feet.
(6)
Complete plans and estimates for the proposed site improvements,
certified by an engineer, land surveyor, architect, or landscape architect
licensed in the State of New York, drawn to a scale no less detailed than
one inch equals 50 feet, and including:
(a)
Existing-conditions map, including identification of
existing buildings, structures, walls, fences, areas of one-hundred-year floodplain,
vegetative cover including dominant species and all trees with a dbh of four
inches or greater;
(b)
Delineation of the soil types on site;
(c)
Location of the construction area or area proposed to
be disturbed, and its relation to property lines, roads, buildings, structures,
walls, fences, areas within 100 yards of floodplain, and trees with a dbh
of four inches or greater and watercourses within 250 feet of the proposed
activity;
(d)
The exact locations and specifications for all proposed
draining, filling, grading, dredging, and vegetation removal, including the
amount computed from cross sections, estimated quantities and the nature of
material to be deposited or removed, and the procedures to be used;
(e)
Location of any septic systems or well(s), and depth(s)
thereof, and any disposal system within 100 feet of area(s) to be disturbed;
(f)
Existing and proposed contours at two-foot intervals
in all proposed disturbed areas and to a distance of 100 feet beyond; at the
discretion of the approval authority, the existing elevations of the site
and adjacent lands within 200 feet of the site at contour intervals of no
greater than five feet;
(g)
Details of any drainage, diversion, detention or retention
system proposed both for the conduct of work, and after completion thereof,
including locations at any point discharges, artificial inlets, or other human-made
conveyances which would discharge into the wetland or wetland buffer, and
measures proposed to control erosion both during and after the work;
(h)
Groundwater table elevations, indicating depth to groundwater,
direction of flow and hydrologic connections with surface water features,
and analysis of the wetland/watercourse hydrologic system, including seasonal
water fluctuation, inflow/outflow calculations and soil subsurface, geology
and groundwater conditions;
(i)
Erosion and sedimentation control plan, including installation
details of proposed control measures, directive construction notations and
a schedule for the installation and maintenance of proposed control measures;
(j)
Where creation of a lake or pond is proposed, details
of the construction of any dams, embankments, outlets or other water control
devices, and analysis of the wetland hydrologic system, including seasonal
water fluctuation, inflow/outflow calculations, and subsurface soil, geology,
and groundwater conditions; and
(k)
Where creation of a detention basin is proposed, with
or without excavation, details of the construction of any dams, berms, embankments,
outlets, or other bank- or bottom-stabilizing or water-control devices, and
an analysis of the wetland hydrologic system, including seasonal water fluctuation,
inflow/outflow calculations, and subsurface drainage, soil and bedrock geology,
and groundwater conditions.
(7)
Proposed mitigation plans.
(8)
When the application affects the water-retention capacity,
water flow or other drainage characteristics of any pond, lake, reservoir,
natural drainage system or wetland, a statement of the impact of the project
on upstream and downstream areas, giving appropriate consideration to other-than-normal
levels of watercourses and amounts of rainfall.
(9)
Details of erosion and sediment control practices, including
a diagram showing what and where erosion and sediment controls practices will
be implemented and a schedule for their installation and maintenance.
(10)
Wetland/watercourse delineation map, showing the certified
boundaries of all wetlands, watercourses and wetland and watercourse buffers,
as defined herein and as certified by a qualified wetland scientist within
12 months prior to the date of filing the application. The delineation limits
of all wetlands and watercourses shall be subject to field verification and
acceptance by the Planning Board and its authorized agents.
(11)
Wetland/watercourse delineation report and assessment
prepared by a qualified wetland scientist as defined by this chapter, which
shall include identification, description and assessment of the following:
(a)
The vegetative cover of the regulated area, including
dominant species and hydrophytic vegetation;
(b)
On-site soil types, including groundwater table elevations
showing depth to water table and direction of flow and hydrologic connections
with surface water features;
(c)
Wetland/watercourse hydrology;
(d)
Wetland/watercourse and adjacent (buffer) area functions
and benefits; and
(e)
Site flora and fauna, including upland and hydrophytic
vegetation with their wetland classified status (FAC, FACW, FACU, UPL) and
dominant woody and herbaceous species.
(12)
A narrative description of the proposed regulated activity
or use, including location of subject property and area to be affected; environmental
impact assessment and description of the wetland, watercourse and/or adjacent
(buffer) area proposed to be disturbed or altered; intended purpose of the
proposed activity or use and the applicant's interest in the subject
property and area to be affected; intended purpose and extent of impact or
alteration on the affected wetland, watercourse and/or adjacent (buffer) area;
explanation of why the proposed regulated activity cannot be located at another
site or location with no or less impact upon wetland, watercourse and/or adjacent
(buffer) area; explanation as to whether or not the proposed activity is dependent
on the affected wetland, watercourse and/or adjacent (buffer) area; the alternatives
to the proposed activity considered, and why the proposal to disturb or alter
the affected wetland, watercourse and/or adjacent (buffer) area was chosen
instead; and the mitigation measures proposed to avoid or reduce impact on
the affected wetland, watercourse and/or adjacent (buffer) area.
(13)
A complete and accurate long form environmental assessment
form (EAF) in accordance with the procedures of the State Environmental Quality
Review Act.
(14)
The approval authority may require additional information
as needed, such as the study of flood, erosion, or other hazards at the site
and the effect of any protective measures that might be taken to reduce such
hazards, and other information deemed necessary to evaluate the proposed use
in terms of the goals and standards of this chapter.
(15)
An application fee and engineering and inspection/monitoring
fees shall be charged according to the schedule established by the Village
of Tarrytown Village Board. Necessary escrow funds shall be deposited with
the Village from time to time as necessary to cover costs for technical assistance
and monitoring when the Planning Board deems necessary. The applicant shall
be notified of the expenses and shall deposit said necessary funds prior to
the cost being incurred.
(16)
A statement that the property owner and applicant will
indemnify and hold the Village or its representatives harmless against any
damage or injury and that the owner and applicant consent to the approval
authority's (including its agents or employees) entry upon lands or waters
for the purpose of undertaking any investigations, inspections, examination,
survey, or other activity for the purposes of this chapter.
D.
All applications for a wetland/watercourse permit shall
be referred to the Village of Tarrytown, Tarrytown Conservation and Land Use
Committee for review and recommendations and the CAC shall have 60 days from
the date of receipt to make its recommendation to the approval authority.
Failure to render a recommendation within the specified time period will be
interpreted as no objection to the application.
E.
The approval authority may establish a mailing list of
all interested persons and agencies who wish to be routinely notified of such
applications. Upon receipt of the completed application, the applicant shall
notify the individuals and agencies, including federal, state, and local agencies
having jurisdiction over or an interest in the subject matter, to provide
such individuals and agencies with an opportunity to comment.
F.
Public hearings. The Planning Board shall hold a public
hearing on the application at such time as it deems appropriate, in order
to give the public at least 15 days' notice thereof. The applicant shall
also give at least 15 days' notice by certified mail to each of the owners
of property within a five-hundred-foot radius from the boundary of the property,
and such notice shall include the notice required for any other required public
hearing in connection with the application, if practicable. Insofar as practicable,
any public hearing on the application may be integrated with any public hearing
required or otherwise held pursuant to any other law, including the State
Environmental Quality Review Act. Any hearing will be held by the Planning
Board. At the hearing, the applicant shall bear the burden of proof and have
the burden of demonstrating that the proposed activity will be in accord with
the goals and policies of this chapter and the standards set forth below.
G.
All information relating to a permit application, including
but not limited to the application itself, additional required materials or
information, notices, record of hearings, written comments, and findings shall
be maintained on file in the office of the Clerk of the Village of Tarrytown
and available through the Village's Planning Department.
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.
A.
After it has been determined by the approval authority
that impacts to wetland, watercourse or wetland/watercourse buffer are necessary
and unavoidable and have been minimized to the maximum extent practicable,
the applicant must develop a proposed mitigation plan which shall specify
proposed mitigation measures that provide for replacement wetland that recreates
as nearly as possible the original wetland in terms of type, vegetative composition,
functions, geographic location and setting, and that is larger, by a ratio
of at least 1.5 to 1.0, than the original wetland and located on site.
B.
All mitigation plans shall be based on the following
order of preference:
(1)
Minimization of impacts and disturbance to wetlands,
watercourses and adjacent (buffer) areas, in that order.
(2)
Preservation of remaining wetlands, watercourses and
adjacent (buffer) areas through the dedication and establishment of perpetual
conservation easements, development restriction areas, or equivalent.
(3)
Rectification by repairing or restoring existing damaged
wetlands, watercourses or adjacent (buffer) areas, including enhancement thereto.
C.
Mitigation may take the following forms, either singularly
or in combination, for disturbances in wetland/watercourse, and adjacent (buffer)
areas:
(1)
For disturbance in a wetland/watercourse or buffer:
(a)
Implementation of preventative practices to protect the
natural condition and functions of the wetland, watercourse; and/or
(b)
Restoration or enhancement (e.g., improving the density
and diversity of native woody plant species) of remaining or other upland
buffer to offset the impacts to the original buffer.
(2)
For disturbance in a wetland:
(a)
Restoration of areas of significantly disturbed or degraded
wetlands at a ratio of at least 1.5 (restored wetland) to 1.0 (impacted wetland)
by reclaiming significantly disturbed or degraded wetland to bring back one
or more of the functions that have been partially or completely lost by such
actions as draining or filling, provided the area of proposed mitigation occurs
in a confirmed disturbed or degraded wetland having significantly lesser functional
values as a result of disturbance or degradation; and/or
(b)
The in-kind replacement of impacted wetland by the construction
of new wetland, usually by flooding or excavating lands that were not previously
occupied by a wetland, that recreates as nearly as possible the original wetland
in terms of type, functions, geographic location and setting, and that is
larger than, by a ratio of at least 1.5 to 1.0, the original wetland.
D.
The Planning Board shall inspect and monitor, or shall
cause to have inspected and monitored, projects according to the specifications
set forth in the permit, to determine whether the elements of the mitigation
plan and permit conditions have been satisfied and whether the restored or
created wetland function(s) and acreage mitigate the impacted function(s)
and acreage. To this end, the approval authority may contract with an academic
institution, an independent research group, or other qualified professionals
at the expense of the applicant. An annual, or more frequent, monitoring report
prepared by the appropriate monitor shall be submitted to the approval authority.
Mitigation projects shall be monitored for an appropriate period of time,
as determined by the approval authority Planning Board, on a case-by-case
basis. Long-term monitoring is generally needed to assure the continued viability
of mitigation wetlands. In general, the monitoring period shall be from three
to five years. The requirements for monitoring shall be specified in the mitigation
plan and shall include, but not be limited to:
(1)
The time period over which compliance monitoring shall
occur;
(2)
Field measurements to verify the size and location of
the impacted wetland area and the mitigation (restored or replacement) wetland
area;
(3)
The date of completion of the restoration and/or replacement;
and
(4)
Field verification of the vegetative, hydrologic, and
soils criteria as specified in the mitigation plan and permit.
E.
If the Planning Board requires a mitigation plan, the
following shall apply:
(1)
All mitigation measures shall balance the benefits of
regaining new wetland area(s) with the loss to upland (nonwetland) area(s)
caused by wetland creation. On-site mitigation is required.
(2)
Mitigation plans developed to compensate for the loss
of wetland or wetland/watercourse buffer shall include baseline data as needed
to adequately review the effectiveness of this plan.
(3)
Any mitigation plan prepared pursuant to this section
and accepted by the Planning Board shall become part of the permit for the
application to conduct a regulated activity.
F.
All mitigation plans shall include:
(1)
A map with sufficient detail and at a scale to be able
to determine where the wetland is located and its size, boundaries and topographic
features;
(2)
A narrative which describes goals and specific objectives
for the mitigation wetland or wetland/watercourse buffer, including the functions
and benefits to be provided and clear performance standards and criteria for
assessing project success;
(3)
A description of the physical, hydrological and ecological
characteristics of the impacted wetland and/or wetland/watercourse buffer
and proposed restored and/or created wetland and/or buffer in sufficient detail
to enable the Planning Board to determine whether wetland and/or buffer impacts
will be permanently mitigated;
(4)
Details on construction, including:
(a)
Diking, excavation, or other means by which the wetland
will be restored or created, including existing and proposed topographic contours.
(b)
Construction schedule.
(c)
Measures to control erosion and sedimentation during
construction.
(d)
Plantings: source of stock, procedures for transplanting/seeding
the stock, area(s) to be planted, and planting schedule. If vegetation from
the wild is to be used, identify the source and measures to prevent introduction
of undesirable exotics.
(e)
Chemicals: if applicable, explain why chemicals will
be used and precautions to be taken to minimize their application and protect
the wetland and/or watercourse from excessive chemicals;
(5)
Details on management of the mitigation site, including:
(a)
Measures to assure persistence of the wetland (e.g.,
protection against predation by birds and other animals);
(b)
Vegetative management;
(c)
Sediment and erosion control;
(d)
Plans for monitoring the site during and after construction,
including methods and schedule for data collection and provisions for mid-course
corrections;
(e)
Provisions for long-term protection of the site (e.g.,
permanent conservation easement);
(f)
Provision for bonding or other financial guarantees.
(6)
A description of the periodic reporting, including at
the end of construction, during the monitoring period and at the end of the
monitoring period; and
(7)
The name, qualifications and experience of the person(s)
implementing the mitigation plan (i.e., contractor who will restore or construct
the wetland).
G.
Mitigation measures and permit conditions shall be set
forth in a covenant to be recorded in the County Clerk's office, to run
with the land and bind subsequent owners. The approval authority will require
the applicant to provide a covenant or easement to enable the Village to inspect
any mitigation measures of approval. If mitigation measures are removed or
not properly maintained, the Village, upon notice to cure to the property
owner, may undertake corrective action, charge the property owner for such
expense, and, if unpaid, place the costs on the real property tax bill.
A.
Any permit issued pursuant to this chapter may be issued
with conditions. Such conditions may be attached, as the approval authority
deems necessary, to assure the preservation and protection of affected wetlands
and compliance with the policy and provisions of this chapter.
B.
Every permit issued pursuant to this chapter shall be
in written form and shall contain the following conditions:
(1)
Work conducted under a permit shall be open to inspection
at any time, including weekends and holidays, by the approval authority or
its designated representative(s).
(2)
The permit shall expire on a specified date; unless otherwise
indicated, the permit shall be valid for one year.
(3)
The permit holder shall notify the approval authority,
in writing, of the date on which the regulated activity is to begin at least
five days in advance of such date.
(4)
A copy of the approval authority's written permit
with conditions and the approved plans shall be maintained on site during
construction while the regulated activities authorized by the permit are being
undertaken.
(5)
The boundaries of the regulated activity and wetlands
and watercourses shall be staked and appropriately marked in the field so
as to be clearly visible to those at the project site.
(6)
Mitigation measures shall be enumerated as conditions
of the written permit.
C.
Any permit the issuance of which is based on erroneous
or incomplete information, including but not limited to the failure to completely
identify wetland, watercourse and adjacent (buffer) areas, shall be subject
to revocation by the Planning Board.
D.
The approval authority that set forth in writing all
conditions attached to any permit. Such conditions may include, but are not
limited to, limitations on lot size for any activity; limitations on the total
portion of any lot or the portion of the wetland/watercourse or adjacent (buffer)
area on the lot that may be cleared, regraded, filled, drained, excavated
or otherwise modified; modification of waste disposal and water supply facilities;
imposition of operation controls, sureties, and deed restrictions concerning
future use and subdivision of lands, such as preservation of undeveloped areas
in open space use and limitation of vegetation removal; dedication of easements
and development restriction areas to protect wetlands/watercourses and adjacent
(buffer) areas; erosion control measures; setbacks for structures, fill, excavation,
deposit of soil, and other activities from the wetland; modifications in project
design to ensure continued ground- and surface water supply to the wetland/watercourse
or adjacent (buffer) area and circulation of waters; and/or replanting of
wetland/watercourse or adjacent (buffer) areas vegetation or construction
of new wetland areas to replace damaged or destroyed areas.
E.
All permits shall expire on completion of the acts specified
and, unless otherwise indicated, shall be valid for a period of one year from
the date of issue. An extension of an original permit may be granted upon
written request to the approval authority by the original permit holder and/or
the legal agent for the permit holder at least 90 days prior to the expiration
date of the original permit. The approval authority may require new hearings
if, in its judgment, the original intent of the permit is altered or extended
by the extension, or if changed circumstances or conditions in the area may
exist, or if the applicant has failed to abide by the terms of the original
permit in any way. The request for extension of a permit shall follow the
same form and procedure as the original application except that the approval
authority shall have the option of not holding a hearing if the original intent
of the permit is not altered or extended in any significant way.
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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A.
The approval authority may require that, prior to commencement
of work under any permit issued pursuant to this chapter, the applicant or
permittee shall post a bond and/or provide a letter of credit in an amount
and with surety and conditions sufficient to secure compliance with the conditions
and limitations set forth in the permit. The particular amount and the conditions
of the bond and/or letter of credit shall be consistent with the purposes
of this chapter. The bond and/or letter of credit shall remain in effect until
the approval authority or its designated agent certifies that the work has
been completed in compliance with the terms of the permit and the bond and/or
letter of credit is released by the approval authority or a substitute bond
is provided. In the event of a breach of any condition of any such bond and/or
letter of credit, the approval authority may institute an action in the courts
and prosecute the same to judgment and execution.
B.
The approval authority shall set forth in writing its
findings and reasons for imposing a bond and/or letter of credit pursuant
to this section.
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.
A.
The approval authority may suspend or revoke a permit
and direct the Wetlands Inspector to issue a stop-work order if it finds that
the applicant or permittee has not complied with any or all of the terms of
such permit, has exceeded the authority granted in the permit, has failed
to undertake the project in the manner set forth in the approved application
or has provided information in whole or in part which subsequently proves
to be false, deceptive, incomplete or inaccurate.
B.
The approval authority shall set forth in writing in
the file it keeps regarding a permit application its findings and reasons
for revoking or suspending a permit pursuant to this section.
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.
A.
The Village of Tarrytown is specifically empowered to
seek injunctive relief restraining any violation or threatened violation of
any provisions of this chapter and/or compel the restoration of the affected
wetland or wetland/watercourse buffer to its condition prior to the violation
of the provisions of this chapter.
B.
The Planning Board will require the inspection of each
site of a permit to ascertain the degree of compliance with the approved plans
and permit conditions. The frequency of such inspections will be in proportion
to the site complexity and potential harm of each project. The inspection
shall be carried out by the Village Wetland Scientist. The cost of such inspection
shall be determined by the approval authority and borne by the permit holder.
The reports of such inspection shall become part of the public record.
A.
Administrative sanctions.
(1)
Damages. Any person who undertakes any wetland activity
without a permit issued hereunder, or who violates, disobeys, or disregards
any provision of this chapter or any rule or regulation adopted by the Planning
Board pursuant to this chapter, shall be required to suspend all activity
by a written stop-work order issued by the Wetlands Inspector or other Village
representative and shall be liable to the Village of Tarrytown for civil damages
caused by such violation for every such violation. Each consecutive day of
the violation will be considered a separate offense. Such civil damages may
be recovered in an action brought by the Village of Tarrytown at the request
and in the name of the Planning Board in any court of competent jurisdiction.
(2)
Restitution. The Village of Tarrytown shall have the
authority, following a hearing before the Planning Board and on notice to
the violator, "notice of violation," to direct the violator to restore the
affected wetland/watercourse to its condition prior to violation, insofar
as that is possible, within a reasonable time and under the supervision of
the Planning Board or its designate. Further, the Planning Board shall be
able to require an adequate bond in a form and amount approved by the Planning
Board to ensure the restitution of the affected wetland. Any such order of
the Planning Board shall be enforceable in an action brought in any court
of competent jurisdiction. Any order issued by the Planning Board pursuant
to this subdivision shall be reviewable in a proceeding pursuant to Article
78 of the State Civil Practice Law and Rules. The Planning Board may attach
any order issued pursuant to this subdivision to the land records of the Village
of Tarrytown for the property on which the violation occurred. This order
shall remain attached to the land records for the duration of the violation;
the Planning Board shall, upon satisfactory removal of the violation, remove
the order from the land records.
(3)
Stop-work order, revocation of permit. In the event any
person holding a wetlands/watercourse permit pursuant to this chapter violates
the terms of the permit, fails to comply with any of the conditions or limitations
set forth on the permit, exceeds the scope of the activity as set forth in
the application, or operates so as to be materially detrimental to the public
welfare or injurious to wetlands or watercourses, the Planning Board may suspend
or revoke the wetlands/watercourse permit, as follows:
(a)
Suspension of a permit shall be by a written stop-work order issued by the Wetlands Inspector or any other official of the Village, through the Village Attorney, and delivered to the permittee or his agent or the person performing the work. The stop-work order shall be effective immediately, shall state the specific violations cited, and shall state the conditions under which work may be resumed. A stop-work order shall have the effect of suspending all authorizations and permits granted by the Village or any agency thereof. The stop-work order shall remain in effect until the Planning Board is satisfied that the permittee has complied with all terms of the subject permit or until a final determination is made by the Village Board as provided in Subsection A(3)(b) contained herein below.
(b)
No site development permit shall be permanently suspended
or revoked until a public hearing is held by the Planning Board.
[2]
Such notice shall be served on the permittee at least
one week prior to the date set for the public hearing unless the stop-work
order is issued for a violation occurring less than one week before the next
regularly scheduled public meeting of the Planning Board. At such hearing,
the permittee shall be given an opportunity to be heard and may call witnesses
and present evidence. At the conclusion of the hearing, the Planning Board
shall determine whether the permit shall be reinstated, suspended or revoked.
The term "person," as used herein, shall mean a natural person or a corporate
person.
(4)
Any offender also may be ordered by the Planning Board
to restore the affected freshwater wetland to its condition prior to the offense,
insofar as possible. The approval authority shall specify a reasonable time
for the completion of such restoration, which shall be effected under the
supervision of the Village of Tarrytown.
B.
Criminal sanctions. Any person convicted of having violated
or disobeyed any provision of this chapter, any order of the Planning Board
or any condition duly imposed by the Planning Board in a permit granted pursuant
to this chapter, shall, for the first offense, be punishable by a fine of
not less than $1,000. For each subsequent offense, such person shall be punishable
by a fine of not less than $2,000, nor more than $15,000, and/or a term of
imprisonment of not more than 15 days. Each consecutive day of the violation
may be considered a separate offense.
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.
