[HISTORY: Adopted by the Town Board of the
Town of North Greenbush 1-27-1981 by L.L. No. 2-1981 as Ch. 73 of
the 1981 Code; amended in its entirety 11-14-1991 by L.L. No. 9-1991. Subsequent amendments
noted where applicable.]
This chapter shall be known as the "Freshwater
Wetlands Protection Law of the Town of North Greenbush."
It is declared to be the policy of the Town
of North Greenbush to exercise its authority pursuant to Article 24
of the State Environmental Conservation Law.
The following terms, phrases, words and their
derivatives wherever used in this chapter shall have following meanings:
Any land in the Town of North Greenbush immediately adjacent
to a freshwater wetland, lying within 100 feet of the boundary of
a freshwater wetland.
The Freshwater Wetlands Appeals Board established by Article
24 of the State Environmental Conservation Law.
The outer limit of the vegetation or of the waters, as the
case may be, specified in the definition of freshwater wetlands.
Lands and waters as defined in Subdivision (1) of the § 24-0107
of the Environmental Conservation Law of the State of New York.
The map on which are indicated the boundaries of any freshwater
wetland and which has been filed with the Clerk of the Town of North
Greenbush by the State Department of Environmental Conservation pursuant
to § 24-0301 of the State Environmental Conservation Law.
Any corporation, firm, partnership, association, trust, estate,
one or more individuals and any unit of government or agency or subdivision
thereof.
The Planning Board of the Town of North Greenbush.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to humans, plants, animals or property.
Any action which may result in direct or indirect physical
impact on a freshwater wetland, including but not limited to any regulated
activity.
Any form of draining, dredging, excavation, removal of soil,
mud, sand, shells, gravel or other aggregate from any freshwater wetland
either directly or indirectly; any form of dumping, filling or depositing
of any soil, stones, sand, gravel, mud, rubbish or fill of any kind
either directly or indirectly; the erecting of any structures or roads,
the driving of pilings or the placing of any other obstructions, whether
or not changing the ebb and flow of the water; any form of pollution,
including but not limited to installing a septic tank, running a sewer
outfall, discharging sewage treatment effluent or other liquid wastes
directly into or so as to drain into a freshwater wetland; that portion
of any subdivision of land that involves any land in any freshwater
wetland or adjacent area; and any other activity which substantially
impairs any of the several functions served by freshwater wetlands
or the benefits derived therefrom which are set forth in § 24-0105
of the Environmental Conservation Law of the State of New York, as
the same may be from time to time amended.
The annual or periodic removal of trees, individually or
in small groups, in order to realize the yield and establish a new
crop and to improve the forest, which removal does not involve the
total elimination of one or more particular species of trees.
The State of New York.
A.Â
Except as provided in Subsection B of this section, no person shall conduct a regulated activity on any freshwater wetland or adjacent area unless such person has first obtained a permit pursuant to this chapter.
B.Â
No permit under this chapter shall be required for:
(1)Â
The depositing or removal of the natural products
of freshwater wetlands and adjacent areas by recreational or commercial
fishing, aquaculture, hunting or trapping where otherwise legally
permitted and regulated.
(2)Â
The activities of farmers and other landowners in
grazing and watering livestock, making reasonable use of water resources,
harvesting natural products of wetlands or adjacent areas, selective
cutting of timber, draining land or wetlands for growing agricultural
products and otherwise engaging in the use of wetlands or other land
for growing agricultural products; provided, however, that structures
not required for enhancement or maintenance of the agricultural productivity
of the land and any filling activities shall not be excluded from
the requirement of a permit hereunder, and that any farmer or other
landowner who intends to conduct an activity described in this subsection
which would otherwise be a regulated activity shall notify the agency
in writing, prior to conducting the activity, of his or her intention
to engage in such activity, stating the approximate acreage of freshwater
wetland or adjacent area affected, the location thereof, the methods
to be employed and the uses to be made of such land.
(3)Â
Public health activities pursuant to orders or regulations
of the State Department of Health, Rensselaer County Department of
Health or Health Officer of the Town of North Greenbush, undertaken
in compliance with § 24-0701(5) of the State Environmental
Conservation Law.
(4)Â
Activities subject to review under Article 7 or Article
8 of the Public Service Law of the State of New York.
(5)Â
Any actual and ongoing emergency activity which is
immediately necessary for the protection or preservation of natural
resource values, including search and rescue operations, preventive
or remedial activities related to large-scale contamination of streams
or other bodies of water, floods, storms and public health concerns.
A.Â
Application and fee. A person proposing to conduct
or cause to be conducted a regulated activity upon any freshwater
wetland or adjacent area shall file an application for a permit with
the Clerk of the Planning Board. Such application shall set forth
the full name and address of each applicant and of the person or persons
interested in or intending to engage in such activity, the full name
and address of the owner or owners of the lands upon which such activity
is proposed to be conducted, a detailed description of the proposed
activity, the location thereof and the purpose, character and extent
thereof, the names of the owners of record of all lands adjacent to
the freshwater wetlands or adjacent areas upon which the proposed
activity is to be conducted and the names and addresses of any claimant
or claimants to water rights affecting such wetlands or adjacent areas
known to the applicant. The application shall be accompanied by a
map showing the freshwater wetland or adjacent area affected and the
precise location of the proposed activity thereon and by a legal description
of the premises upon which the proposed activity is to be conducted.
All applications for a permit shall be accompanied by a fee in an
amount to be established by the Planning Board.
B.Â
Number of copies. Two copies of the application for
permit shall be presented to the Planning Board at the time of submission.
One copy will be maintained in the records of the Planning Board and
one copy will be returned to the applicant with the decision of the
Planning Board on the application.
C.Â
Applicant to attend Planning Board meeting. The applicant
or his duly authorized representative shall attend a meeting of the
Planning Board to discuss the application.
D.Â
When officially submitted. The time of submission of the application for permit shall be considered to be the date on which the application, complete and accompanied by the required fee and all data required by Subsection A of this section, has been filed with the Clerk of the Planning Board. Such application shall be filed at least 10 days prior to a regular meeting of the Planning Board.
E.Â
Public hearing. A public hearing shall be held by
the Planning Board within 45 days from the time of submission of the
application for permit. Said hearing shall be advertised in two newspapers
of general circulation in the Town at least five days before such
hearing.
F.Â
Action on application for permit. The Planning Board
shall, within 45 days from the date of the public hearing, act to
approve, with or without modification, or disapprove such application
for permit. The ground for approval with modification, if any, or
the ground for disapproval shall be stated upon the records of the
Planning Board. The time in which the Planning Board must take action
on the application may be extended by mutual consent of the applicant
and the Planning Board. Failure of the Planning Board to act within
such forty-five-day period shall constitute approval of the application
for permit.
A.Â
In granting, denying or conditioning any permit, the
Planning Board shall consider the effect of the proposed activity
with reference to the public health and welfare; fishing; flood, hurricane
and storm dangers; and protection or enhancement of the several functions
of the freshwater wetlands and the benefits derived therefrom set
forth in § 24-0105 of the Environmental Conservation Law.
B.Â
Standards.
(1)Â
No permit shall be issued pursuant to this chapter
unless it shall be found that:
(a)Â
The proposed regulated activity is consistent
with the preservation, protection and conservation of freshwater wetlands
and the benefits derived therefrom, the prevention of the despoliation
and destruction of freshwater wetlands and the regulation of the development
of such wetlands to secure the natural benefits thereof consistent
with the general welfare, economic, social and agricultural betterment
of the Town of North Greenbush.
(b)Â
The proposed regulated activity is consistent
with the land use regulations applicable in the Town of North Greenbush
pursuant to § 24-0903 of Article 24 of the Environmental
Conservation Law.
(c)Â
The proposed regulated activity is compatible
with the public health and welfare.
(d)Â
The proposed regulated activity is reasonable
and necessary.
(e)Â
There is no reasonable alternative for the proposed
regulated activity on a site which is not a freshwater wetland or
adjacent area.
(2)Â
The applicant shall have the burden of demonstrating
that the proposed regulated activity will be in accord with the standards
set forth in this subsection.
C.Â
Duly filed notice, in writing, that the state or any
agency or subdivision thereof is in the process of acquiring by negotiation
or condemnation, any freshwater wetland which is the subject of any
such application for a permit shall constitute sufficient basis for
a denial of any permit.
D.Â
Affirmative votes. The Planning Board's determination
shall require for its adoption of the affirmative vote of a majority
of all members of the Planning Board.
E.Â
Copy of Board's determination. A copy of the Planning
Board's determination shall be mailed by the Planning Board within
five days of its issuance and filing to the applicant and to the Clerk
of any municipality outside of the Town of North Greenbush within
the boundaries of which any part of the proposed regulated activity
is located.
In the granting of a permit, conditions or limitations
may be imposed designed to carry out the purposes of this chapter
in preserving and protecting affected freshwater wetlands, including,
but without limitation thereto, provisions for the inspection of a
regulated activity from time to time; the posting of bond, as established
by the Planning Board, conditioned upon compliance with the terms
and conditions of the permit; advance notification of the commencement
of construction; and reasonable time limitations.
In order to carry out the purposes and provisions
of this chapter, the Planning Board shall have the power to contract
for professional and technical assistance and advice; to hold hearings
and subpoena witnesses in the exercise of its powers, functions and
duties; to recommend the posting of a bond or other security by a
permittee conditioned upon faithful compliance with the terms and
conditions of such permit and for indemnification to the Town of North
Greenbush for any restoration costs resulting from a failure of such
compliance; and to establish a schedule of costs and fees chargeable
to applicants to defray the costs of postage, service of process,
publication, stenographic services and technical and professional
services as it may determine. The applicant shall bear all reasonable
costs and fees associated with the proposal. Such costs may include
but are not limited to notices of public hearings, conduct and reporting
of public hearings, technical assistance, professional and legal representation,
liability insurance and rental of adequate facilities for the proper
conduct of any public hearings.
No permit granted pursuant to this chapter shall
abrogate any obligation to comply with any other law, ordinance, rule
or regulation applicable to or affecting land use and development.
Wherever possible, the Planning Board shall, in the exercise of its
functions hereunder, coordinate the same with such functions as it
may exercise under any other state or local law, rule or regulation.
The Planning Board may suspend or revoke any
permit issued pursuant to this chapter upon a finding that the permittee
has failed to comply with any of its terms and conditions; has failed
to comply with any other law, ordinance, rule or regulation pertaining
to land use and development in the affected area; has exceeded the
authority granted by such permit; has failed to post any bond or security
required by the Planning Board; or has failed to undertake or conduct
the regulated activity in the manner set forth in the application.
The provisions of Title 1, Title 3 and Title
5 of Article 71 of the Environmental Conservation Law, except as herein
modified, shall be applicable to the enforcement of this chapter.
In addition, any person who violates, disobeys or disregards any provision
of this chapter or of any permit issued hereunder shall be liable
to a civil penalty of not more than $3,000 for each such violation
and an additional penalty of not more than $500 for each day during
which such violation continues, and, in addition thereto, such person
may be enjoined from continuing such violation.
Any determination of the Planning Board under
this chapter may be reviewed in accordance with the provisions of
Subdivision (6) of § 24-0705 and Title 11 of Article 24
of the Environmental Conservation Law, and the provisions of such
sections shall be applicable to any such review.
This chapter shall take effect upon the filing with the Clerk of the Town of North Greenbush of the final freshwater wetlands map by the State Department of Environmental Conservation, pursuant to § 24-0301 of the Environmental Conservation Law, and any such amended maps, as provided for in § 103-3 of this chapter, applicable to any or all lands within the Town of North Greenbush.
