[HISTORY: Adopted by the Board of Trustees of the Village of Lattingtown (Art. 28 of the 1998 General Ordinance Compilation). Amendments noted where applicable.]
The Village of Lattingtown ("Village") finds that freshwater wetlands are invaluable resources for flood protection, wildlife habitat, open space, water resources, and other benefits associated therewith which, if preserved and maintained in an undisturbed, natural condition, constitute important social economic and aesthetic assets to existing and future residents of the Village.
It is the intent of the Village Trustees to protect the residents of the Village by preserving, protecting, and conserving freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands, and to regulate use and development of such wetlands consistent with the general welfare of the Village pursuant to Article 24 of the New York State Environmental Conservation Law (NYSECL).
It is also the intent of the Village Trustees to promote the public purpose and the health, safety and general welfare of present and future residents of the Village by providing for the protection, proper maintenance and use of wetlands, water bodies and watercourses located within the Village by preventing or minimizing erosion due to flooding and stormwater runoff, maintaining the natural groundwater supplies, protecting subsurface water resources and providing valuable watersheds, preserving and protecting the purity, utility, water retention capability, ecological functions and natural beauty of all wetlands, water bodies, watercourses, and other related natural features of the terrain, and by providing and protecting wildlife habitat.
The following terms, phrases, words and their derivatives shall have the meaning given herein:
- ADJACENT AREA
- All lands within 100 feet, horizontally, of the vegetative boundary of any freshwater wetland.
- Includes the owner of the affected property, his agent or contract vendee who files an application for a permit pursuant to this chapter.
- The outer limit of vegetation specified in Subsections A and B and the waters specified in Subsection C of the definition of "freshwater wetlands" below.
- FRESHWATER WETLANDS
- Lands and waters lying within the boundaries of the Village as shown on the freshwater wetlands map prepared by or for the State of New York and filed the Village pursuant to § 24.0301 of NYSECL or as shown on any freshwater wetland maps the Village shall prepare which contain any or all of the following:
- A. Lands and submerged lands commonly called marshes, swamps, sloughs, bogs and flats supporting aquatic or semiaquatic vegetation of the following vegetative types:
- (1) Wetland trees, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees; including, among others, red maple (Acer rubum), willows (Salix spp.), black spruce (Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), American elm (Ulmus Americana), and larch (Larix laricina);
- (2) Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs; including, among others, alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla), and leatherleaf (Chamaedaphne calyculata);
- (3) Emergent vegetation, including, among others, cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed (Phragmites communis), wildrice (Zizania aquatica), bur-reeds (Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticillatus), and water plantain (Alisma plantago-aquatica);
- (4) Rooted, floating-leaved vegetation; including, among others, water-lily (Nymphaea odorata), water shield (Brasenia schreberi), and spatterdock (Nuphar spp.);
- (5) Free-floating vegetation; including among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza), and watermeal (Wolffia spp.);
- (6) Wet meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other open-land vegetation; including, among others, sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinace, swamp loosestrife (Decodon verticillatus) and spikerush (Eleocharis spp.).
- (7) Bog mat vegetation; including, among others, sphagnum mooses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne Calyculata), pitcher plant (Sarrancenia purpurea) and cranberries (Vaccineam macrocarpon and V. oxycoccos);
- (8) Submergent vegetation; including, among others, pondweeds (Potamoziton spp.), navads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisnerla americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum spp.), muskgrass (Chara), stonewort (Nitella spp.), waterweeds (Elodea spp.), and water smartweed (polygonum amphibium);
- B. Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet and provided further that such conditions can be expected to persist indefinitely, barring human intervention;
- FRESHWATER WETLANDS BOARD OF APPEALS
- The member Board established by Article 24 of the NYSECL.
- The applicant, any person who is permitted to intervene pursuant to Article 24 of the NYSECL, the Village or an adjoining municipality within which is located the freshwater wetland or adjacent area which is the subject of an application for a permit.
- Freshwater wetlands permit for the conduct of a regulated activity.
- Any corporation, firm, partnership, association, trust, estate, one or more individuals, and any unit of government, agency or subdivision thereof.
- PLANNING BOARD
- The Planning Board of the Incorporated Village of Lattingtown designated by the Village to be responsible for administering the provisions of this chapter and promulgating rules, regulations and procedures necessary to implement and administer properly the provisions herein.
- The presence in the environment of human-induced conditions or contaminants in quantities or characteristics which are or may be injurious to humans, vegetation, wildlife or property.
- Any action resulting in direct or indirect physical impact on a freshwater wetland, including but not limited to any regulated activity.
- REGULATED ACTIVITY
- Any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate, either directly or indirectly; any form of dumping, filling or deposition of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures, constructing 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 into or so as to drain into a freshwater wetland and any other activity which substantially impairs any of the several functions served by the freshwater wetlands or the benefits derived therefrom which are set forth in § 24-0105 of the NYSECL.
No person shall conduct a regulated activity in any freshwater wetland or adjacent areas in the Village without first obtaining a permit issued by the Planning Board.
As are otherwise legally permitted within the Village, the depositing or removal of the natural products of freshwater wetlands and adjacent areas as enumerated in § 24-0701(4) of the NYSECL, and agricultural activities within said areas as are enumerated and defined in § 240701(4) of the NYSECL, shall not be considered regulated activities. In addition, public health activities, orders and regulations of the Department of Health shall be excluded from regulated activities. This agency shall notify the Planning Board in writing of the proposed activity which it will conduct.
If the Planning Board shall determine an emergency activity is immediately necessary to protect the health, safety and well-being of any person or to immediately prevent substantial damage to personal or real property, it may exempt such activity from regulation.
Any person proposing, permitting or causing to be conducted a regulated activity upon any freshwater wetland or adjacent area shall file an application for a permit with the Village Clerk. The application shall include a detailed description of the proposed activity, a map showing the area of freshwater wetland directly affected, with the location of the proposed activity thereon and a current list of record owners of lands and claimants of water rights within 100 feet of the property on which the regulated activity is located.
After submission of the completed application, the applicant shall publish, at his expense, a notice of application, indicating that the applicant intends to file an application, in two newspapers having a general circulation in the area. The Planning Board may waive the publishing of the notice of application and require the publication of the appropriate notice of hearing.
If no notice of objection has been filed by any party-in-interest in response to the notice of application or if the Planning Board finds that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within the freshwater wetland, it may dispense with a public hearing. If the Planning Board determines that a hearing is not to be held, the Board shall publish, in the Village newspaper, its decision setting forth its findings and reasons therefor.
If a hearing is to be held it shall be scheduled no sooner than 30 days and not later than 60 days after the receipt of the completed application by the Village and the publishing of the notice of application. The applicant shall publish the notice of hearing at his expense in two newspapers having a general circulation in the area where the affected freshwater wetland is located not more than 28 days nor less than 15 days prior to the date set for the hearing.
Applicant shall also send by certified mail, not less than 15 days prior to the date set for the hearing, the notice of hearing to owners of record of adjacent lands within 100 feet of the premises containing the wetlands and known claimants to water rights which will be affected.
No permit shall be issued by the Planning Board pursuant to this chapter unless it shall find that:
The proposed regulated activity is consistent with the policy of this chapter to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands, and to regulate the development of such wetlands in order to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the Village;
The proposed regulated activity is consistent with the Village's land use regulations;
The proposed regulated activity is compatible with the public health and welfare;
The proposed regulated activity is reasonable and necessary; and
There is no reasonable alternative for the proposed regulated activity on a site which is not a freshwater wetland or adjacent area.
Any permit issued pursuant to this chapter may be issued with conditions. Such conditions may be attached as are necessary to assure the preservation and protection of affected freshwater wetlands and to assure compliance with the policy and provisions of this chapter and the provisions of the Planning Board's rules and regulations adopted pursuant to this chapter.
The Planning Board may require a performance bond in such form and sureties it deems necessary. Said bond shall guarantee compliance with all provisions of this chapter and all other conditions and requirements imposed on the approval of the permit.
Operations conducted under the permit shall be open to inspection at any time by the Building Inspector or Village Engineer. The issuance of a permit by the Planning Board does not relieve the applicant from obtaining all other necessary authorizations.
The Planning Board may suspend or revoke a permit issued pursuant to this chapter where it finds that the permittee has not complied with any or all terms of such permit, has exceeded the authority granted in the permit, or has failed to undertake the project in the manner set forth in the application.
After a public hearing the Planning Board may adopt, amend and repeal rules and regulations consistent with this chapter as it deems necessary and proper to administer this chapter.
Any person who violates, disobeys or disregards any provision of this chapter shall be liable for a civil penalty, not to exceed $3,000, for every such violation to be assessed. Each and every day a violation continues after written notice has been served on the violator by the Building Inspector shall be deemed a separate violation. Before assessment of the civil penalty, the alleged violator shall be afforded a hearing or opportunity to be heard before the Planning Board upon due notice, and with the rights to specification of the charges and representation by counsel.
The Planning Board shall also have the power, following a hearing, to direct a violator to cease violation of this chapter and to satisfactorily restore the affected freshwater wetland to its condition prior to the violation under the Board's supervision.
Any civil penalty or order issued by the Village shall be reviewable pursuant to the Civil Practice Law and Rules.
In addition to the above civil fine, any person who violates an order issued pursuant to Subsection B of this section shall be guilty of a violation pursuant to the Penal Law, punishable by a fine of not less than $500, nor more than $1,000. For a second and each subsequent offense, the violator shall be guilty of a violation punishable by a fine of not less than $1,000, nor more than $2,000.
The Planning Board shall have the right to seek equitable relief to restrain any violation or threatened violation of any provisions of this chapter.
Any decision or order of the Planning Board may be reviewed:
By the Freshwater Wetlands Board of Appeals in accordance with Title 11 of Article 24 of the NYSECL, provided, within 30 days after service of such order or notice of such decision, such review is commenced by the filing with the Freshwater Wetlands Board of Appeals a notice of review; and
Pursuant to Article 78 of the New York State Civil Practice Law and Rules.
The institution of a judicial proceeding to review a determination or order of the Planning Board shall preclude the institution of a proceeding before the Freshwater Wetlands Board of Appeals to review such a determination or order.
After a public hearing the Board of Trustees may adopt a freshwater wetlands map indicating the boundaries of any freshwater wetlands in the Village, as defined herein, provided said freshwater wetlands map is no less restrictive than that filed by the State Department of Environmental Conservation. The Board of Trustees may after a public hearing so amend, modify or update an adopted freshwater wetlands map as it deems necessary and proper to carry out the intent of this chapter.
If any clause, sentence, paragraph, subdivision or part of this chapter shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision or part thereof directly involved in the controversy in which such judgment shall have been rendered.
This chapter shall take effect upon either the filing with the Clerk of the Village of a freshwater wetlands map duly adopted by the Board of Trustees or upon the filing with the Clerk of the Village of a freshwater wetlands map by the State Department of Environmental Conservation pursuant to § 24-0301 of the New York State Environmental Conservation Law, whichever occurs first.