[HISTORY: Adopted by the Board of Trustees
of the Village/Town of Mount Kisco 3-4-1991 by L.L. No. 2-1991.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Planning Board — See Ch. 25.
Building construction — See Ch. 51.
Excavation and soil removal — See Ch. 62.
Flood damage prevention — See Ch. 66.
Zoning — See Ch. 110.
[1]
Editor's Note: This local law also repealed
former Ch. 107, Wetlands and Drainage Control, adopted 8-31-1976 by
L.L. No. 5-1976, as amended.
A.
Findings.
(1)
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.
(2)
In their natural state, wetlands serve multiple functions,
including:
(a)
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.
(b)
Controlling flooding and stormwater runoff by
storing or regulating natural flows.
(c)
Providing unique nesting, migratory and wintering
habitats for diverse wildlife species, including many on the New York
State and Federal Endangered Species Lists.
(d)
Supporting unique vegetative associations specifically
adapted for survival in low-oxygen environments.
(e)
Providing areas of unusually high plant productivity
which support significant wildlife diversity and abundance.
(f)
Providing breeding and spawning grounds, nursery
habitat and food for various species of fish.
(g)
Serving as nutrient traps for nitrogen and phosphorus
and filters for surface water pollutants.
(h)
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.
(3)
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.
B.
Intent.
(1)
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.
(2)
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:
(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 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.
(c)
Increasing erosion.
(d)
Decreasing breeding, nesting and feeding areas
for many species of waterfowl and shorebirds including those which
are rare and endangered.
(e)
Interfering with the exchange of nutrients needed
by fish and other forms of wildlife.
(f)
Decreasing habitat for fish 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 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.
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:
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.
See "wetland buffer."
A person who files an application for a permit pursuant to
this chapter.
The Board of Trustees of the Village/Town of Mount Kisco.
The outer limit of the soils and/or vegetation of a wetland,
as defined in this chapter.
The duly appointed Building Inspector of the Village/Town
of Mount Kisco.
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.
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.
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.
To fill, grade, discharge, emit, dump or place any material,
or the act thereof.
The emission of any water, substance or material into a wetland
or wetland buffer, whether or not such substance causes pollution.
To deplete or empty of water by drawing off by degrees or
in increments.
To excavate or remove sediment, soil, mud, sand, shells,
gravel or other aggregate, except for small samples.
To dig out and remove any material.
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.
See "deposit."
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing and other modification
of the natural land surface.
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
|
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.
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.
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.
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.
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.
Any application other than a major application.
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.
That form of written approval required by this chapter for
the conduct of a regulated activity within a wetland or wetland buffer.
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.
The Planning Board of the Village/Town of Mount Kisco.
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 activity which may result in direct
or indirect physical or chemical impact on a wetland, including but
not limited to any regulated activity.
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]
Wetlands or wetland buffers to which the regulations set
forth in this chapter apply.
To dig, dredge, suck, bulldoze, dragline, blast or otherwise
excavate or grade, or the act thereof.
Any cutting of trees within the boundaries of a wetland or
wetland buffer that is not clearcutting, as defined in this section.
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.
The Village/Town of Mount Kisco.
The duly appointed Village Attorney of the Village/Town of
Mount Kisco.
The duly appointed Village Engineer of the Village/Town of
Mount Kisco.
The duly appointed Village Manager of the Village/Town of
Mount Kisco.
The municipal planning specialist designated by the Village
Manager as the consultant to the Village/Town of Mount Kisco with
respect to planning matters.
The duly appointed Treasurer of the Village/Town of Mount
Kisco.
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.
The zone of saturation at the highest average depth during
the wettest season.
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.
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]
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for sufficient duration to support
hydrophytic vegetation.
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.
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.
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.
A.
The provisions of this chapter shall apply to all
areas defined pursuant hereto as wetlands or wetland buffers.
B.
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.
C.
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.
A.
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.
B.
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.
(1)
Normal ground maintenance, including mowing, trimming
of vegetation and removal of dead or diseased vegetation around a
residence.
(2)
Repair of walkways and walls.
(3)
Decorative landscaping and planting in wetland buffers.
(4)
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.
(5)
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.
C.
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.
D.
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:
(1)
Placement or construction of any structure.
(2)
Any form of draining, dredging, excavation or removal
of material, either directly or indirectly.
(3)
Any form of dumping, filling or deposition of material,
either directly or indirectly.
(4)
Installation of any service lines or cable conduits.
(5)
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.
A.
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.
B.
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:
(1)
Adopt, amend and repeal rules and regulations governing
its procedure and the transaction of its business.
(2)
Investigate and report upon wetlands, water conservation
and drainage problems referred to it by the Board of Trustees and
Conservation Advisory Council.
(3)
Request the advice and recommendation of the Village
Engineer, Village Planner and wetland specialist with respect to any
application before it.
(4)
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]
A.
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:
(1)
The name, address and social security number or other
federal identification number of the applicant.
(2)
The street address and Village Tax Map designation
of the property involved.
(3)
A statement describing the proposed work and purpose,
including a plan or sketch showing the following:
(a)
The location of construction or the area proposed
to be disturbed and its relation to property lines, buildings, roads
and watercourses within 250 feet.
(b)
Estimated quantities and the nature of material
to be deposited or removed.
(c)
The location of any existing or proposed well
within 100 feet of the proposed project, and the depth thereof.
(d)
The location of any existing or proposed waste
disposal system, including sewer lines, within 100 feet of the proposed
project.
(e)
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.
(f)
Details of any drainage system proposed for
the conduct of the work and the completed project.
(g)
Details of any erosion-control system proposed
in the conduct of the work and the completed project.
(h)
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.
(4)
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.
B.
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.
C.
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]
D.
Filing fee. The application shall be accompanied by a fee in the amount set forth in Chapter A112, Fees.
F.
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.
A.
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.
B.
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]
C.
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.
D.
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.
E.
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]
F.
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.
G.
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.
A.
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.
B.
Before rendering its decision upon any application
under this chapter, the permitting authority shall consider the following:
(1)
All evidence offered at the public hearing or otherwise
presented to the permitting authority.
(2)
Any reports from other commissions and/or federal,
county, state or local agencies.
(3)
Any additional information requested by the permitting
authority.
(4)
All relevant facts and circumstances, including but
not limited to:
(a)
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.
(b)
Any existing wetland impacts and the cumulative
effect of reasonably anticipated future wetland activities in the
wetland subject to the application.
(c)
The impact of the proposed activity, and reasonably
anticipated similar activities, upon flood flows, flood storage, storm
barriers and water quality.
(d)
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.
(e)
The adequacy of water supply and waste disposal
for the proposed use.
(f)
Consistency with federal, state, county and
local comprehensive land use plans and regulations.
(g)
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.
(h)
The suitability or unsuitability of such activity
to the area for which it is proposed.
(5)
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.
C.
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.
D.
The permitting authority may grant the application,
with or without conditions, only upon finding that the proposed activity:
(1)
Is compatible with the public health and welfare;
(2)
Is the only practical alternative which will accomplish
the applicants objective;
(3)
Has no practicable alternative on a site that is not
a wetland or wetland buffer;
(4)
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
(5)
Satisfies a pressing economic or social need that
clearly outweighs the loss of or detriment to the wetland.
E.
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:
(1)
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.
(2)
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.
(3)
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.
F.
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:
(1)
Limitations on minimum lot size for any activity.
(2)
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.
(3)
Modification of waste-disposal and water-supply facilities.
(4)
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.
(5)
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
No provision of this chapter shall relieve any person
from the obligation to comply with any other federal, state or local
law or regulation.
A.
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.
B.
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.
C.
Administrative sanctions.
(1)
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:
(a)
Revocation of the permit.
(b)
Direction to restore the affected area within
a reasonable time to its condition prior to the violation, insofar
as that is possible.
(c)
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.
(d)
Civil penalties not to exceed $50,000 or the
amount of the loss occasioned by such violation, whichever shall be
greater.
(2)
Before any such sanction is imposed, the Planning Board shall afford the alleged violator the opportunity to be heard upon due notice specifying the alleged violation, and the alleged violator shall have the right to representation by counsel at such hearing. Any civil penalty imposed pursuant to this subsection shall be paid within 30 days of its imposition by the Planning Board or prior to the commencement of any further work pursuant to the permit, whichever shall be sooner, and if not so paid shall be reported to the Village Manager and collected pursuant to Chapter 92 of this Code. Any restoration directed by the Planning Board which is not completed as required may be completed by the village at the sole cost and expense of the applicant, pursuant to Chapter 92 of this Code.
D.
Criminal sanctions. Any person who knowingly violates, disobeys or disregards any provision of this chapter or of any permit issued hereunder shall, in addition to any administrative sanction imposed pursuant to Subsection C above, be punishable as provided in Chapter 1, General Provisions, Article III. Each offense shall be a separate and distinct offense; and in the case of a continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense. In addition, the court may direct the offender to restore the affected area to its condition prior to the offense, insofar as that is possible. The court shall specify a reasonable time for the completion of such restoration, which shall be effected pursuant to a permit issued by the Planning Board and under its supervision.
