[HISTORY: Adopted by the Town Board of the Town of Guilderland 8-10-1976
by L.L. No. 3-1976 (Subpart 11, Div. 2, of the 1974 Code). Amendments noted
where applicable.]
This chapter shall be known as the "Wetlands Protection Law of the Town
of Guilderland."
It is declared to be the policy of the Town of Guilderland 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 the following meanings:
Any land in the Town of Guilderland immediately adjacent to a freshwater
wetland lying within 100 feet of the boundary of a freshwater wetland.
The Conservation Advisory Council of the Town of Guilderland or,
if so redesignated, the Conservation Board of the Town of Guilderland.
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" herein provided.
Lands and waters as defined in Subdivision 1 of § 24-0107
of the Environmental Conservation Law of the State of New York as the same
may be from time to time amended and as such lands and waters are shown on
the Freshwater Wetlands Map.
The map on which are indicated the boundaries of any freshwater wetland
and which has been filed with the Clerk of the Town of Guilderland 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 Guilderland.
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 a 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; erecting any structures or roads, the driving of pilings, or
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.
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.
No permit under this chapter shall be required for:
(1)
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)
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)
Public health activities, pursuant to orders or regulations
of the State Department of Health, Albany County Department of Health or Health
Officer of the Town of Guilderland, undertaken in compliance with § 24-0701,
Subdivision 5, of the State Environmental Conservation Law.
(5)
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.
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 Director of Planning of the Town of Guilderland,
which application shall be in such form as the Agency may prescribe and 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 activity is proposed
to be conducted, a detailed description of the proposed activity, the location
thereof, and the purpose, character and extent thereof, and 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.
B.
Within five days of his receipt of an application completed
as herein provided, the Director of Planning shall cause a copy of such completed
application to be mailed to any local government outside of the Town of Guilderland
having jurisdiction in any area where any part of the proposed activity is
located, shall provide the applicant with a notice of application in such
form as the Agency may prescribe, which the applicant shall at his own expense
cause to be published at least once in each of at least two newspapers having
a general circulation in the Town of Guilderland, and shall deliver a copy
of such application and notice to the Chairperson of the Agency. Such notice
shall state that notices of objection stating the grounds of objection may
be filed with the Agency on or before a specified date, that in the absence
of a filed notice of objection or upon the Agency's determination that the
proposed activity is of such a minor nature as to not affect or endanger the
balance of systems within any freshwater wetland the Agency may, in its discretion,
dispense with a public hearing upon the application, and that the application,
including all maps and documents accompanying and made a part of the same,
is available for public inspection at the office of the Director of Planning
of the Town of Guilderland. Notwithstanding any other provision of this section,
the Agency may, in its discretion, dispense with the requirement of a notice
of application and conduct or cause to be conducted a public hearing upon
notice as hereinafter provided.
C.
Unless a public hearing upon the application shall have
been dispensed with as herein provided, the Agency shall, after the publishing
of notice of the application as hereinbefore provided, and no sooner than
30 days nor later than 60 days after receipt by the Director of Planning of
a completed application, cause a public hearing upon the application to be
conducted upon notice as herein provided. Such notice shall be published at
least once in each of at least two newspapers of general circulation within
the Town of Guilderland not less than 15 days prior to the date of hearing
and shall state the name of the applicant, the time and the place of the hearing
on the application, the location and in general terms the scope of the proposed
regulated activity. Such notice shall also state that persons wishing to be
heard may on or before a specified date file with the Agency a notice of appearance
setting forth such person's interest in and reasons for support or opposition
to the application. Such notice shall also state that any person may be heard
at such hearing without filing a notice of appearance; provided, however,
that in the absence of a timely filed notice of appearance and upon a waiver
of public hearing by the applicant, the Agency may cancel such hearing and
determine the application without such hearing. Such notice shall further
state that the application, together with all maps and other documents accompanying
the same, is available for public inspection at the office of the Director
of Planning of the Town of Guilderland. At least 15 days prior to the date
of hearing, a copy of such notice shall be mailed by registered mail to all
owners of record of land adjacent to the affected freshwater wetland or adjacent
area and to all known claimants of water rights affecting the same and to
the clerk of any municipality outside of the Town of Guilderland wherein any
part of such proposed activity is located. All costs of publication and mailing
of such notice shall be borne by the applicant.
D.
Notwithstanding any other provision of this section, the Agency may, in its discretion, dispense with or cancel such public hearing where no notice of objection to the notice of application has been filed as provided in Subsection B of this section, or no notice of appearance has been filed as provided in Subsection C of this section and the applicant has waived such public hearing, or the Agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any freshwater wetland. Whenever a notice of public hearing has been published and served as provided in Subsection C of this section, a notice of cancellation shall be published and mailed at least three days before such public hearing in the manner and to the persons prescribed in respect of the notice of public hearing.
A public hearing held pursuant to this chapter shall be conducted by
the Agency, which shall cause a record of the hearing to be made and shall
within 10 days after receipt of the hearing record submit to the Planning
Board its findings and recommendations, together with the hearing record and
all documentary evidence admitted upon the hearing. The Agency shall permit
all persons filing notices of appearance to be heard and shall admit such
testimony from other persons as it deems relevant and material to the issues.
The applicant and all persons filing notices of appearance shall be given
an opportunity to examine and cross-examine witnesses on issues of fact and
to present oral and written arguments on issues of law and policy. Persons
not filing notices of appearance may, in the discretion of the Agency, be
permitted to participate to the extent of submitting oral or documentary evidence
whenever the Agency deems such evidence relevant or material to any issue
raised by the application or where the Agency finds such participation to
be in the public interest. Every act, motion or resolution shall require for
its adoption the affirmative vote of a majority of all members of the Agency.
A.
Whenever a public hearing has been had upon a permit
application, the Planning Board shall, within 30 days from its receipt of
the hearing record, including all documentary evidence admitted upon the hearing
together with the Agency's findings and recommendations, by written decision,
either issue the permit with or without conditions or deny the application.
B.
Where a public hearing has been dispensed with, the Agency
shall, within 30 days from the filing of a completed application for a permit,
submit to the Planning Board its findings and recommendations. Such findings
and recommendations shall be based upon the application and any further documents
and materials deemed relevant or material by the Agency submitted by the applicant
or otherwise obtained and relied upon by the Agency. Such findings and recommendations
shall be in writing, and shall set forth the reasons for the Agency's recommendations.
Within 30 days from its receipt of such findings and recommendations, the
Planning Board shall, by written decision, either issue the permit with or
without conditions or deny the application.
C.
The Planning Board's determination with or without a
public hearing shall be based upon the entire record of the application, including
the application and all accompanying documents and materials submitted with
it, oral, written or other evidence submitted upon a public hearing, and any
additional documents or materials required or otherwise obtained by the Agency.
D.
The Planning Board's determination shall require for
its adoption the affirmative vote of a majority of all members of the Planning
Board; provided, however, that wherever the Planning Board's determination
is contrary to the recommendation of the Agency or is at variance with such
recommendation in a material respect, the Planning Board shall state its reasons,
and such determination shall require for its adoption the affirmative vote
of a majority plus one of all members of the Planning Board.
E.
A copy of the Planning Board's determination shall be
mailed by the Agency within five days of its issuance and filing to the applicant
and to the clerk of any municipality outside of the Town of Guilderland within
the boundaries of which any part of the proposed regulated activity is located
and, if a public hearing has been held, to each person who shall has filed
a notice of appearance.
A.
In granting, denying or conditioning any permit, the
Agency and 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.
Issuance of permits.
(1)
No permit shall be issued pursuant to this chapter unless
it shall be found that:
(a)
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 Guilderland;
(b)
The proposed regulated activity is consistent with the
land use regulations applicable in the Town of Guilderland pursuant to § 24-0903
of Article 24 of the Environmental Conservation Law;
(c)
The proposed regulated activity is compatible with the
public health and welfare;
(d)
The proposed regulated activity is reasonable and necessary;
and
(e)
There is no reasonable alternative for the proposed regulated
activity on a site which is not a freshwater wetland or adjacent area.
(2)
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.
Duly filed notice, in writing, that the state or any
agency or subdivision thereof is in the process of acquiring any freshwater
wetland, which is the subject of any such application for a permit, by negotiation
or condemnation shall constitute sufficient basis for a denial of any permit.
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 to, provisions
for the inspection of a regulated activity from time to time, the posting
of security 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
Agency shall have the power to adopt, amend and repeal rules and regulations
consistent with this chapter for the purpose of administering the same; 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 Guilderland 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 the Agency may determine.
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
and the Agency shall, in the exercise of their respective functions hereunder,
coordinate the same with such functions as they may exercise under any other
state or local law, rule or regulation.
The Planning Board may, upon the recommendation of the Agency, 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 order, rule or regulation of the Agency or 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. Penalties and injunctive relief
provided herein shall be recoverable in an action brought by the Attorney
General at the request of the Agency, the Planning Board or the Commissioner
of Environmental Conservation of the State of New York. Such action may be
brought in the name of the Agency, the Planning Board or in the
name of such Commissioner.
Any determination of the Planning Board under this chapter may be reviewed
in accordance with the provisions of Subdivision 5 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.
