Chapter 107 Wetlands and Drainage Control

The Board of Trustees of the Village/Town of Mount Kisco finds that growth, the spread of development and increasing demands upon the natural resources have the potential of encroaching upon, despoiling, polluting or eliminating many of the wetlands, ponds and streams, rainfall-drainage systems and water-retention areas in the Village/Town of Mount Kisco and other natural resources and the processes associated therewith, which, if preserved, constitute important physical, economic, social, aesthetic and recreational assets to the Village/Town of Mount Kisco and its present and future residents.

In their natural state, wetlands serve multiple functions, including:

Protecting water resources by providing sources of surface water, recharging groundwater and aquifers, serving as chemical and biological oxidation basins and/or functioning as settling basins for naturally occurring sedimentation.

Controlling flooding and stormwater runoff by storing or regulating natural flows.

Providing unique nesting, migratory and wintering habitats for diverse wildlife species, including many on the New York State and Federal Endangered Species Lists.

Supporting unique vegetative associations specifically adapted for survival in low-oxygen environments.

Providing areas of unusually high plant productivity which support significant wildlife diversity and abundance.

Providing breeding and spawning grounds, nursery habitat and food for various species of fish.

Serving as nutrient traps for nitrogen and phosphorus and filters for surface water pollutants.

Providing open space and visual relief from development in urbanized and growing areas.

(i)

Serving as outdoor laboratories and living classrooms for the study and appreciation of natural history, ecology and biology.

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. Remaining wetlands are in jeopardy of being lost, despoiled or impaired by such acts, contrary to the public safety and welfare.

Intent.

The Board of Trustees declares it to be the policy of the Village/Town of Mount Kisco to protect its citizens, including future generations, by preventing the despoliation and destruction of wetlands while taking into account varying ecological, economic, recreational and aesthetic values.

It is the intent of the Board of Trustees of the Village/Town of Mount Kisco that activities in and around wetlands be required to conform to all applicable building codes, sediment control regulations and other regulations and that such activities not threaten the public safety or the natural environment or cause nuisances by:

Impeding flood flows, reducing flood storage areas or destroying storm barriers, thereby resulting in increased flood heights, frequencies or velocities on other lands.

Increasing water pollution through location of domestic waste-disposal systems in wet soils; inappropriate siting of stormwater-control facilities; unauthorized application of fertilizers, pesticides, herbicides and algicides; disposal of solid wastes at inappropriate sites; creation of unstabilized fills; or the destruction of wetland soils and vegetation serving pollution- and sediment-control functions.

Increasing erosion.

Decreasing breeding, nesting and feeding areas for many species of waterfowl and shorebirds including those which are rare and endangered.

Interfering with the exchange of nutrients needed by fish and other forms of wildlife.

Decreasing habitat for fish and other forms of wildlife.

Adversely altering the recharge or discharge functions of wetlands, thereby impacting groundwater or surface water supplies.

CONSERVATION ADVISORY COUNCIL

Significantly altering the wetland hydroperiod and thereby causing either short- or long-term changes in vegetational composition, soils composition, soils characteristics, nutrient recycling or water chemistry.

(i)

Destroying sites needed for education and scientific research, such as outdoor biophysical laboratories, living classrooms and training areas.

(j)

Interfering with the recreation opportunities provided by wetlands for fishing, boating, hiking, birdwatching, photography and other passive uses.

(k)

Destroying or damaging aesthetic property values, including significant public viewsheds.

§ 107-2 Definitions.

Except where specifically defined herein, all words used in this chapter shall carry their customary meanings. As used in this chapter, the following terms shall have the meanings indicated:

ACTIVITY

Any act within a regulated area to which the requirements of this chapter may apply, including but not limited to clear-cutting, depositing, discharging, draining, dredging, excavation, filling, grading, pollution, selective cutting, the conduct of any project and the subdivision of land.

ADJACENT AREA

See "wetland buffer."

APPLICANT

A person who files an application for a permit pursuant to this chapter.

BOARD OF TRUSTEES

The Board of Trustees of the Village/Town of Mount Kisco.

BOUNDARY OF A WETLAND

The outer limit of the soils and/or vegetation of a wetland, as defined in this chapter.

BUILDING INSPECTOR

The duly appointed Building Inspector of the Village/Town of Mount Kisco.

CLEAR-CUTTING

Any cutting of more than 30% of the number of trees four inches or more in diameter at breast height (4.5 feet) on any wetland area per lot or group of lots under single ownership during any ten-year cutting cycle or any cutting of trees which results in the total removal of one or more naturally occurring species on any wetland area per lot or group of lots under single ownership, whether or not the cut meets the thirty-percent threshold.

The duly appointed Conservation Advisory Council of the Village/Town of Mount Kisco, as created pursuant to Article 12-F of the General Municipal Law.

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.

DECORATIVE LANDSCAPING AND PLANTING

The planting of hydrophytic vegetation or any ornamental plant capable of growing in wet conditions, such as water iris, elephant ears or canna lilies, or the placement of permeable materials, such as bark, crushed stone or pebbles, to create a walkway or path.

DEPOSIT

To fill, grade, discharge, emit, dump or place any material, or the act thereof.

DISCHARGE

The emission of any water, substance or material into a wetland or wetland buffer, whether or not such substance causes pollution.

DRAIN

To deplete or empty of water by drawing off by degrees or in increments.

DREDGE

To excavate or remove sediment, soil, mud, sand, shells, gravel or other aggregate, except for small samples.

EXCAVATE

To dig out and remove any material.

FACULTATIVE SPECIES

Vegetative species that can occur in both upland and wetland systems, as listed in the National List of Plants that Occur in Wetlands: Northeast (Region 1) 1988, or the most recent edition thereof, published by the United States Fish and Wildlife Service in cooperation with the National and Regional Wetland Plant List Review Panels, or, if no longer published, a source of substantially equivalent character selected by the Planning Board.

FILL

See "deposit."

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.

HYDRIC SOIL

A soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part or those areas meeting the technical criteria for "hydric soils" as established by the United States Department of Agriculture Soil Conservation Service and the Westchester County Soil and Water Conservation District. The soils meeting these criteria include but are not limited to the following classifications, as may be updated or amended from time to time:

Soils List
Sh	Sun silt loam
Sm	Sun extremely stony silt loam
Fr	Fredon loam
Ra	Raynham silt loam
Ce	Carlisle muck
Pc	Freshwater marsh (palms and Carlisle soils)
Uc	Udorthents wet substratum
Rd	Ridgebury loam
Rg	Ridgebury very stony loam
Fl	Fluvaquents
Pa	Palms muck
Lc	Leicester loam
Le	Leicester very stony loam

HYDROPHYTIC VEGETATION

Macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content or those plants which are dependent upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other species. These plants may belong to any of the following vegetative types: wetland trees, wetland shrubs, emergent vegetation, submergent and rooted floating-leaved vegetation, free-floating vegetation, wet meadow vegetation and bog mat vegetation. The following indicators of "hydrophytic vegetation" may be used in conjunction with hydric soils and/or wetland hydrology:

The presence of obligate wetland species, particularly as dominant, in a vegetation unit. Facultative species may be present, but obligate upland species cannot be present on other than microsites.

Plants with adaptations to inundation and/or saturated soil conditions. Such adaptations include but are not limited to buttressed tree trunks, floating stems, floating leaves, multiple trunks and inflated leaves, stems or roots.

MAJOR APPLICATION

An application with respect to an activity for which site plan approval would be required pursuant to § 110-45 of this Code or with respect to a parcel which is proposed to be or is capable of being subdivided to create lots which conform to the applicable district regulations set forth in Chapter 110 of this Code.

MATERIAL

Liquid, solid or gaseous substances, including but not limited to soil, 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.

MICROSITE

A small site supporting facultative or obligate vegetation anomalous within the context of the larger vegetative unit. "Microsites" may be drier or wetter than surrounding areas as a result of altered drainage, incidental topographic variation or a related characteristic.

MINERAL SOIL

A soil consisting predominantly of and having its properties determined predominantly by mineral matter. "Mineral soils" usually contain less than twenty percent (200/o) organic matter by weight.

MINOR APPLICATION

Any application other than a major application.

OBLIGATE UPLAND SPECIES

Plant species that, under natural conditions, always (i.e., greater than 99% of the time) occur in uplands, as listed in the National List of Plants that Occur in Wetlands: Northeast (Region 1) 1988, or the most recent edition thereof, published by the United States Fish and Wildlife Service in cooperation with the National and Regional Wetland Plant List Review Panels, or, if no longer published, a source of substantially equivalent character selected by the Planning Board.

PERMIT

That form of written approval required by this chapter for the conduct of a regulated activity within a wetland or wetland buffer.

PERMITTING AUTHORITY

The entity with the authority to grant, grant with conditions or deny a permit pursuant to this chapter, as set forth in § 107-5 of this chapter.

PLANNING BOARD

The Planning Board of the Village/Town of Mount Kisco.

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 activity which may result in direct or indirect physical or chemical impact on a wetland, including but not limited to any regulated activity.

RECREATIONAL ACTIVITIES

Walking, strolling, jogging, nature study, bird-watching and other passive recreational activities, but excluding organized sports.

[Added 3-4-1991 by L.L. No. 3-1991]

REGULATED AREAS

Wetlands or wetland buffers to which the regulations set forth in this chapter apply.

REMOVE

To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or grade, or the act thereof.

SELECTIVE CUTTING

Any cutting of trees within the boundaries of a wetland or wetland buffer that is not clearcutting, as defined in this section.

STRUCTURE

Any combination of any materials forming any construction, 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, docks, jetties and swimming pools.

VILLAGE

The Village/Town of Mount Kisco.

VILLAGE ATTORNEY

The duly appointed Village Attorney of the Village/Town of Mount Kisco.

VILLAGE ENGINEER

The duly appointed Village Engineer of the Village/Town of Mount Kisco.

VILLAGE MANAGER

The duly appointed Village Manager of the Village/Town of Mount Kisco.

VILLAGE PLANNER

The municipal planning specialist designated by the Village Manager as the consultant to the Village/Town of Mount Kisco with respect to planning matters.

VILLAGE TREASURER

The duly appointed Treasurer of the Village/Town of Mount Kisco.

WATER BODIES and WATERCOURSES

Ponds, lakes, marshes, swamps, bogs or other areas of permanent water retention, regardless of origin, and all natural drainage systems, including rivers, streams and brooks which contain water at least six months of the year and the associated floodplains of such watercourses, including areas surrounding such natural drainage systems, and shall include all adjacent surface for 100 feet as measured from both sides of the bank of the watercourse or adjacent surface which has an elevation of less than five feet above the normal (mean) waterline, whichever is more.

WATER TABLE

The zone of saturation at the highest average depth during the wettest season.

WETLAND BUFFER

The area extending 100 feet horizontally away from and paralleling the boundary of any wetland, or greater than 100 feet where the permitting authority finds it necessary to the protection of the wetland.

WETLAND COMMITTEE

A committee composed of the Village Manager, the Building Inspector and a member of the Planning Board designated by the Planning Board Chairman.

[Amended 3-4-1991 by L.L No. 3-1991]

WETLAND HYDROLOGY

The sum total of wetness characteristics in areas that are inundated or have saturated soils for sufficient duration to support hydrophytic vegetation.

WETLAND PLANTS OF THE STATE OF NEW YORK

The most currently available published list of obligate and facultative upland and wetland plant species developed by the United States Department of the Interior Fish and Wildlife Service in cooperation with the National and Regional Plant List Review Panels.

WETLANDS

All areas and waters within the village that constitute water bodies or watercourses, are comprised of hydric soils and/or are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and which under normal circumstances do support, a prevalence of hydrophytic vegetation, including those areas which have been defined and are regulated by the New York State Department of Environmental Conservation.

WETLAND SPECIALIST

A person having special knowledge by reason of education or experience with respect to the physical, chemical and biological sciences related to the physiology, identification and distribution of native plants and vegetative associations in wetland and upland systems, methods to describe, classify and delineate vegetative species and associations, hydric soils and wetlands hydrology, designated by the Village Manager as the consultant to the village with respect to the implementation of this chapter.

§ 107-3 Applicability; location of wetlands.

The provisions of this chapter shall apply to all areas defined pursuant hereto as wetlands or wetland buffers.

The Village Manager shall cause to be established and maintained a map showing the general location of wetlands within the village, which such map shall be made available for public inspection in the office of the Building Inspector. The map shall be advisory only, and the finite areas of wetlands and wetland buffers shall be determined pursuant to Subsection C of this section.

The finite areas of wetlands and/or wetland buffers shall be determined by the permitting authority pursuant to the criteria set forth herein, after consultation with the wetland specialist. Upon receiving a report from the Village Engineer, Village Planner or Building Inspector that any lot with respect to which an application has been filed for site plan approval, subdivision plat approval or a building permit may be located within or contains within it a wetland or a wetland buffer, the Village Manager shall authorize an investigation by the wetland specialist to determine whether such area is subject to the regulations set forth herein.

§ 107-4 Permit required; exempt, excluded and regulated activities.

Permit required. No activity, other than an exempt activity or an excluded activity, shall be conducted in a wetland or wetland buffer except in accordance with a permit granted by the permitting authority pursuant to this chapter and in compliance with the terms of this chapter and other applicable regulations. All activities that are not exempt or excluded shall be defined as regulated and shall be prohibited except when conducted pursuant to such a permit.

Exempt activities. The following activities shall be permitted within a wetland or wetland buffer, except to the extent that they are prohibited by any other local law, constitute a pollution or erosion hazard, interfere with proper drainage or require structures, grading, fill, draining or dredging.

Normal ground maintenance, including mowing, trimming of vegetation and removal of dead or diseased vegetation around a residence.

Repair of walkways and walls.

Decorative landscaping and planting in wetland buffers.

Emergency activities necessary to protect life, property or natural resource values, provided that the person responsible for taking such emergency measures notifies the Village Engineer, in writing, within two days of commencing such emergency measures, describing the emergency, the property, life or natural resource values being protected and the measures being taken.

Restoration of preexisting structures partially or entirely destroyed by casualty loss after the effective date of this chapter, provided that such restoration occurs within six months of the date of the loss.

(6)

Recreational activities.

Excluded activities. The regulations imposed by this chapter shall not apply to activities conducted in accordance with a permit issued pursuant to the predecessor to this chapter, enacted as Local Law No. 5-1976, and as thereafter amended, provided that such activities were commenced prior to the effective date of the law, or activities conducted by the village and its agencies.

Regulated activities. Regulated activities include all activities within a wetland or wetland buffer other than those specified as exempt or excluded in the sections above. Regulated activities include but are not limited to:

Placement or construction of any structure.

Any form of draining, dredging, excavation or removal of material, either directly or indirectly.

Any form of dumping, filling or deposition of material, either directly or indirectly.

Installation of any service lines or cable conduits.

Introduction of any form of pollution, including but not limited to the installation of a septic tank, the running of a sewer outfall or the discharge of sewage treatment effluent or other liquid wastes into or so as to drain into a wetland.

(6)

Alteration or modification of natural features and contours.

(7)

Alteration or modification of natural drainage patterns.

(8)

Construction of dams, docks or other water-control devices, pilings or bridges, whether or not they change the natural drainage patterns.

(9)

Installation of any pipes or wells.

(10)

Clear-cutting.

(11)

Deposition or introduction of organic or inorganic chemicals, including pesticides and fertilizers.

(12)

Grazing of animals and any agricultural activity which involves draining or excavation of a wetland.

(13)

The subdivision of land.

(14)

Any other activity that may impair the natural function(s) of a wetland as described in § 107-1.

§ 107-5 Permitting authority.

The Planning Board shall be the permitting authority pursuant to this chapter with respect to a major application, and the Wetland Committee shall be the permitting authority pursuant to this chapter with respect to a minor application, subject to the right of administrative appeal provided for herein. The permitting authority shall review and take appropriate action upon applications made pursuant to this chapter, in accordance with the terms hereof.

In the furtherance of the powers granted to it and duties imposed upon it pursuant to this chapter, the permitting authority shall have the power to:

Adopt, amend and repeal rules and regulations governing its procedure and the transaction of its business.

Investigate and report upon wetlands, water conservation and drainage problems referred to it by the Board of Trustees and Conservation Advisory Council.

Request the advice and recommendation of the Village Engineer, Village Planner and wetland specialist with respect to any application before it.

Seek the advice of the Conservation Advisory Council on all matters relating to this chapter, as it deems necessary.

[Amended 3-4-1991 by L.L No. 3-1991]

§ 107-6 Pet application procedure.

Form of application. Application for a permit pursuant to this chapter shall be made on a form provided by the Building Inspector, which shall include the following information:

The name, address and social security number or other federal identification number of the applicant.

The street address and Village Tax Map designation of the property involved.

A statement describing the proposed work and purpose, including a plan or sketch showing the following:

The location of construction or the area proposed to be disturbed and its relation to property lines, buildings, roads and watercourses within 250 feet.

Estimated quantities and the nature of material to be deposited or removed.

The location of any existing or proposed well within 100 feet of the proposed project, and the depth thereof.

The location of any existing or proposed waste disposal system, including sewer lines, within 100 feet of the proposed project.

Existing and adjusted contours at two-foot intervals in the area of the proposed operation or project and to a distance of 100 feet beyond.

Details of any drainage system proposed for the conduct of the work and the completed project.

Details of any erosion-control system proposed in the conduct of the work and the completed project.

Where creation of a lake or pond or the diversion of any water body or watercourse from its natural or preexisting channel is proposed, details of the construction of any dams, embankments, outlets or other water-control devices.

§ 107-8 Decision on permit application.

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.

Property owner's consent. The application for a permit must be made by the owner of record, lessee or contract vendee of land in a regulated area or by the duly authorized agent of such owner or contract vendee, such authorization to be in writing. Any application made by a person other than the property owner shall include a statement of the consent of the property owner or owners, if more than one, to the making of the application and the property owner's recognition of responsibility for compliance with this chapter. The filing of an application shall constitute the consent of the owner of the property to the entry of the permitting authority, its members or agents on the property for the purpose of undertaking any investigation, examination, surveys or other activities which the Planning Board may deem necessary for the consideration of the application and such inspections as shall be reasonably necessary to ensure compliance with permit conditions and this chapter.

Filing and number of copies. Eleven completed copies of the application form with respect to a major application and five copies of the application form with respect to a minor application, together with the same number of copies of the specified supporting plans and documentation, shall be filed with the Building Inspector. The Building Inspector shall deliver one copy to the Chairperson of the Conservation Advisory Council. The applicant shall submit one additional copy of the application, together with the supporting plans and documentation, to the Village Clerk. Applications under this chapter involving subdivision or site development plan approval by the Planning Board shall be submitted prior to or contemporaneous with the application for such subdivision or site development plan approval.

[Amended 3-4-1991 by L.L. No. 3-1991]

Filing fee. The application shall be accompanied by a fee in the amount set forth in Chapter A112, Fees.

Environmental assessment form. The application shall be accompanied by a completed short environmental assessment form, in the form required pursuant to the New York State Environmental Quality Review Act.[1]

[1]

Editor's Note: See Art. 8 of the Environmental Conservation Law.

Notice of application. Within 15 days of the filing of the application form with the Building Inspector, the applicant shall cause notice of the application, in a form set forth by the Planning Board, to be published in two newspapers of general circulation within the village. Due proof of such publication shall be submitted to the Building Inspector within 20 days of publication.

§ 107-7 Review of permit application.

A major application shall be deemed received by the Planning Board on the date of the first regular meeting of the Planning Board following the filing of the application and all necessary supporting documents with the Building Inspector pursuant to the provisions of this chapter. A minor application shall be deemed received when complete and submitted with all necessary supporting documents to the Building Inspector.

The permitting authority shall review the application and the documents submitted therewith and shall cause them to be examined by the Village Engineer, Village Planner and wetland specialist. In conducting such review, the permitting authority may require the applicant to submit any additional information which it deems necessary to its determination upon the application.

[Amended 3-4-1991 by L.L. No. 3-1991]

Upon reviewing a major application, the Village Planner shall determine and report to the Planning Board an estimate of the cost to the village of the review of the application by the Village Engineer, Village Planner and wetland specialist. The Planning Board shall consider the estimate reported by the Village Planner and shall require the applicant to deposit with the Village Treasurer an amount sufficient to satisfy such cost. The Planning Board shall not consider the application further until the applicant has deposited the required amount with the Village Treasurer. The Village Treasurer shall maintain such amount in an interest-bearing trust and agency account to be used to satisfy any obligation which the Planning Board shall ultimately determine the applicant to have for the cost of reviewing the application. Upon the Planning Board's determination of such obligation, the Village Treasurer is authorized to transfer to the general fund of the village any amount necessary to satisfy such obligation. To the extent that there are funds remaining in such account after the satisfaction of such obligation, such funds shall be returned to the applicant.

When the Planning Board is satisfied that all of the information that it deems necessary to its determination with respect to a major application has been submitted, the application shall be deemed complete, and the Planning Board shall schedule a public hearing on the application. The public hearing shall be held not less than 30 days nor more than 60 days after the date on which the application is complete. To the greatest extent practicable, such hearing shall be incorporated with any public hearing required by the Environmental Conservation Law or other law in connection with any approval or permits otherwise required before commencement of regulated activities on lands containing such wetlands.

The applicant shall cause notice of the public hearing, in a form to be determined by the Planning Board, to be published in two newspapers of general circulation within the Village and to be sent by certified mail, return receipt requested, to each person who has filed a statement with the Planning Board with respect to the application and the owners of record of each parcel located within 300 feet of the lot on which the activity is proposed and to such other owners and by such other means of notification as the Planning Board may deem advisable. Such notice shall be given at least 15 days prior to the public hearing, and due proof thereof shall be submitted at the public hearing.

[Amended 12-28-2009 by L.L. No. 7-2009]

The application and any and all documents submitted with respect thereto shall be available for public inspection at the office of the Clerk of the Planning Board for 10 days prior to the date of the public hearing.

The public hearing shall conducted at the designated time and place, and all persons desiring to address the Planning Board with respect to the application shall be heard. The Planning Board may adopt rules requiring persons who desire to speak at a public hearing to register in advance of the hearing. If, in the judgment of the Planning Board, it is necessary that the public hearing be stenographically recorded, the applicant shall arrange for the presence of a stenographer and shall thereafter provide the Planning Board with two copies of the transcript of the hearing, all at the sole cost and expense of the applicant.

The Planning Board shall either grant, conditionally grant or deny a major application within 60 days of the close of the public hearing; provided, however, that if, as a result of the public hearing, the Planning Board requests that the applicant submit additional information or documentation, the Planning Board shall render its decision within 60 days of its receipt of such matter. The Wetland Committee shall either grant, conditionally grant or deny a minor application within 30 days of its receipt by the Building Inspector or the receipt of any additional information requested by the Wetland Committee, whichever shall be later. If, in the judgment of any member of the Wetland Committee, a minor application should be reviewed and determined by the Planning Board, he may so notify the Building Inspector prior to the taking of any decision on the application by the Wetland Committee, and the Wetland Committee shall thereupon be divested of jurisdiction over the application, which shall thereafter be treated as a major application.

Before rendering its decision upon any application under this chapter, the permitting authority shall consider the following:

All evidence offered at the public hearing or otherwise presented to the permitting authority.

Any reports from other commissions and/or federal, county, state or local agencies.

Any additional information requested by the permitting authority.

All relevant facts and circumstances, including but not limited to:

The impact of the proposed activity, and existing and reasonably anticipated similar activities, upon neighboring land uses and wetland functions as set forth in § 107-1 of this chapter, including but not limited to:

[1]

The infilling of a wetland or other modification of natural topographic contours.

[2]

The disturbance or destruction of natural flora and fauna.

[3]

The influx of sediments or other materials causing increased water turbidity and/or substrate aggradation.

[4]

The removal or disturbance of wetland soils.

[5]

Reductions in wetland water supply.

[6]

Interference with wetland water circulation.

[7]

Damaging reduction or increases in wetland nutrients.

[8]

The influx of toxic chemicals and/or heavy metals.

[9]

Damaging thermal changes in the wetland water supply.

[10]

The destruction of natural aesthetic values.

Any existing wetland impacts and the cumulative effect of reasonably anticipated future wetland activities in the wetland subject to the application.

The impact of the proposed activity, and reasonably anticipated similar activities, upon flood flows, flood storage, storm barriers and water quality.

The safety of the proposed activity from flooding, erosion, hurricane winds, soil limitations and other hazards and possible losses to the applicant and subsequent purchasers of the land.

The adequacy of water supply and waste disposal for the proposed use.

Consistency with federal, state, county and local comprehensive land use plans and regulations.

Alternatives to the proposed action, including the availability of preferable alternative locations on the subject parcel or, in the case of an activity which cannot be undertaken on the property without disturbance to wetlands, the availability of other reasonable locations for the activity, whether or not such locations are under the ownership or control of the applicant.

The suitability or unsuitability of such activity to the area for which it is proposed.

The availability of technical improvements, safeguards or other measures that could feasibly be added to the proposed activity to mitigate or eliminate any negative impacts upon the regulated area. If the mitigation proposed does not totally compensate for loss values or the benefits that would be lost by the proposed activity, then the net loss of benefits must be weighed and considered by the permitting authority in making its findings pursuant to this chapter.

The permitting authority shall deny a permit if the proposed activity involves the placement or deposition of chemical wastes or the introduction of influents of sufficiently high thermal content as to cause deleterious ecological effect.

The permitting authority may grant the application, with or without conditions, only upon finding that the proposed activity:

Is compatible with the public health and welfare;

Is the only practical alternative which will accomplish the applicants objective;

Has no practicable alternative on a site that is not a wetland or wetland buffer;

Minimizes the degradation to or loss of any part of the wetland or wetland buffer and any adverse impacts on the functions and benefits that the wetland provides; and

Satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the wetland.

In making the determination required pursuant to Subsection C above, the burden of proof shall be upon the applicant, and the permitting authority shall adhere to the following standards:

An activity is compatible with the public health and welfare when it is consistent with physical health, as judged by health professionals, and with related federal, state and local laws, regulations and policies.

An activity is the only practicable alternative if no other is physically or economically feasible. The most profitable or least costly alternative is not necessarily the only feasible one, nor is the least profitable or most costly alternative the only feasible one.

In considering the economic and social need for the proposed activity, the permitting authority shall also consider the economic and social burden that would be imposed on the public by the activity.

In granting the application, the permitting authority may impose such conditions as are reasonably related to the conduct of the proposed activity and the impacts it may cause. Such conditions may include but shall not be limited to:

Limitations on minimum lot size for any activity.

Limitation on the total portion of any lot or the portion of the wetland on the lot that may be graded, filled 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 limitations of vegetation removal.

Dedication of easements to protect wetlands.

(6)

Erosion-control measures.

(7)

Setbacks for structures, fill, deposit of spoil and other activities from the wetlands.

(8)

Modifications in project design to ensure continued water supply the wetland and circulation of waters.

(9)

Replanting of wetland vegetation and construction of new wetland areas to replace damaged or destroyed areas.

When the permitting authority grants a permit for an activity which will have a negative impact upon a regulated area, it shall require the applicant to prepare a plan for the mitigation of such impact. Required mitigation of negative impacts upon the regulated area may take the form of on-site or off-site remediation of degraded wetlands, creation of wetlands to compensate for any destruction caused by the proposed activity or any other measure which may reasonably further the goals of this chapter. The mitigation must provide substantially the same or more benefits than will be lost through the proposed activity. The mitigation plan shall also set forth procedures for monitoring compliance with the mitigation plan. Compliance with any mitigation plan required by this subsection and accepted by the permitting authority shall be included as a condition of the permit, and any such mitigation requirement must be satisfied if the project is started, even if it is not completed.

Upon the granting of a permit by the permitting authority, the Building Inspector shall cause all of the terms and conditions of such permit to be set forth in a written document, the form of which shall have been approved by the Planning Board in advance, and which, when executed by the Building Inspector, shall constitute prima facie evidence of the granting of a permit pursuant to this chapter and all of the terms and conditions thereof. The Building Inspector shall retain a copy of that permit among the permanent records on file in his office with respect to the lot which is the subject of the application.

In rendering its decision with respect to a major application, or upon the sooner withdrawal of the application, the Planning Board shall cause to be determined and shall set forth the cost to the village of the review of the application by the Village Engineer, Village Planner and wetland specialist. Such cost as determined by the Planning Board shall be paid to the Village Treasurer by the applicant prior to the issuance of any permit pursuant to this chapter. If such costs are not paid within 30 days of the determination of the Planning Board, they shall be reported to the Village Manager and collected pursuant to Chapter 92 of this Code.

The permitting authority may fix a reasonable time for the completion of the activity for which the application was granted, but unless otherwise specified, permits shall be valid for a period of one year, subject to such extensions as may be granted upon application to the permitting authority. All permits shall expire upon the completion of the operation or project approved. Permits may be transferred to new legal owners of the affected property, so long as the conditions and plans as approved remain unchanged. Notice of such transfer of any permit must be filed with the Village Clerk within 30 days of the transfer.

When the permitting authority deems it necessary for the protection of the interests of the village or property owners affected by a project, it may require the applicant to file a bond, undertaking or letter of credit to ensure the satisfactory completion of the project and the rehabilitation of affected or disturbed areas. The bond, undertaking or letter of credit shall be satisfactory in amount to the permitting authority and Village Engineer and satisfactory in form to the Village Attorney. The applicant may satisfy any requirement imposed pursuant to this subsection by making a cash deposit with the Village Treasurer in the amount required for the bond, undertaking or letter of credit.

§ 107-9 Appeals; judicial review.

Any person aggrieved by any decision of the permitting authority pursuant to this chapter may take an appeal to the Board of Trustees within 30 days from the filing of said decision with the Village Clerk, by filing notice of such appeal with the Village Clerk. Upon receipt of the notice of appeal, the Village Clerk shall present a copy thereof to the Board of Trustees at its next regular meeting, and the Board of Trustees shall set a time not less than 10 nor more than 30 days thereafter when a hearing on such appeal will be heard. The applicant shall provide written notice of the appeal to the permitting authority by delivering a copy of the notice to the Building Inspector and shall provide written notice by certified mail, return receipt requested, to any person who has filed a statement with the permitting authority with respect to the application, any person who registered to speak at any public hearing with respect to the application and the owner of record of each parcel located within 300 feet of the lot on which the activity is proposed. The Board of Trustees shall render its decision within 90 days of hearing such appeal.

Any person aggrieved by a decision of the Board of Trustees under this chapter may apply to the Supreme Court of the State of New York for relief in the manner provided by law.

§ 107-10 Enforcement.

The Village Engineer and Building Inspector shall be supplied with copies of permits issued hereunder and are designated as the enforcement agents of the village for the purpose of determining, from time to time, compliance with the terms of any permit issued hereunder; and for such purpose, the Village Engineer, Building Inspector and their designees shall have the right to enter upon and inspect any property. The Village Engineer and Building Inspector shall be responsible to enforce the terms of this chapter by conducting inspections to ensure compliance with permit conditions, investigating all reports of violations and referring such matters to the Town Prosecutor for prosecution when appropriate.

The record owner of any lot containing a regulated area shall be responsible for compliance with this chapter with respect to that lot. For the purpose of enforcing this chapter, the records of the Assessor of the village shall constitute prima facie proof of the ownership of property.

No provision of this chapter shall relieve any person from the obligation to comply with any other federal, state or local law or regulation.

§ 107-11 Penalties for offenses.

Notice of violation. Any person found violating any provision of this chapter or the terms and conditions of any permit granted hereunder shall be served with a written notice stating the nature of the violation and providing a specific time for the satisfactory correction thereof, which time shall not be less than five days.

Stop order. The foregoing notwithstanding, if, in the judgment of either the Village Engineer or the Building Inspector, there is a violation of this chapter or any permit issued hereunder which may create irreparable damage, then the Village Engineer or the Building Inspector may issue a written order to cease all work creating or causing said violation and directing the applicant to appear before the permitting authority at its next meeting. Upon the issuance of such an order and its delivery to the permit holder or his agent or contractor, the permit shall be deemed to have been suspended, and it shall be unlawful and a violation of this chapter to continue the permitted activity. The official issuing such an order shall rescind the order upon compliance with the permit and the taking of such corrective action as shall be determined by the permitting authority.

Administrative sanctions.

Upon finding that an applicant or any person acting as an agent or contractor for the applicant has violated the terms of this chapter or any permit issued hereunder, the Planning Board may impose any one or more of the following sanctions for each and every such violation:

Revocation of the permit.

Direction to restore the affected area within a reasonable time to its condition prior to the violation, insofar as that is possible.

Imposition of any additional conditions on the permit as may be reasonably necessary to effectuate the restoration of the affected area and/or prevent the recurrence of the violation.

Civil penalties not to exceed $50,000 or the amount of the loss occasioned by such violation, whichever shall be greater.