[HISTORY: Adopted by the Town Board of the Town of Lewisboro 2-23-2004 by L.L. No.
1-2004.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Boats and boating — See Ch. 89.
Environmental quality review — See Ch. 110.
Flood damage prevention — See Ch. 126.
Stormwater management — See Ch. 189.
Subdivision of land — See Ch. 195.
Zoning — See Ch. 230.
[1]
Editor's Note: This local law also repealed former Ch. 217,
Wetlands and Watercourses, adopted 6-13-1995 by L.L. No. 3-1995.
A.
Findings of fact.
(1)
In their natural condition and state, wetlands and watercourses function
to provide multiple ecological benefits, including:
(a)
Storing and regulating the distribution of surface water, water
quality renovation during groundwater and aquifer recharge, and/or
functioning as settling basins for the removal of pollutants, including
the trapping of sediments.
(b)
Controlling flooding and stormwater runoff by storing or regulating
natural flows.
(c)
Providing unique breeding, foraging, cover and seasonal or year-round
habitats for diverse wildlife species, including many listed as "special
concern," "threatened," "endangered" and "rare" by federal, state,
county and local agencies.
(d)
Supporting unique biotic associations specifically adapted for
survival in low-oxygen environments.
(e)
Providing areas of comparatively 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, reptiles and amphibians, birds and
mammals.
(g)
Serving as nutrient traps for nitrogen and phosphorus, and filters
for surface water pollutants.
(h)
Helping to maintain biospheric stability by supporting particularly
efficient photosynthesizers capable of producing significant amounts
of oxygen, and supporting bacteria which process excess nitrates and
other nitrogenous pollutants and returning them to the atmosphere
as inert nitrogen gas.
(i)
Providing open space and visual relief from intense development
in urbanized and growing areas.
(j)
Serving as outdoor laboratories and living classrooms for the
study and appreciation of natural history, ecology, and biology.
(k)
Preserving the quality and value of water-related recreational
activities.
(l)
Protecting aquifers, reservoirs and watersheds vital to the
community and to the water supply of New York City, Westchester County
and Connecticut.
(m)
Protecting and maintaining stability of stream and watercourse
channels, shorelines and banks, thereby controlling and reducing erosion,
flooding and related property damage.
(2)
The integrity and realization of the full potential of wetland and
watercourse functions and benefits is inextricably linked to the presence
of intact, undisturbed natural communities or adjacent buffer areas
surrounding wetlands and watercourses. As an interlocking landscape
component of wetlands and watercourses, such buffer areas provide
essential functions and values, including:
(a)
Serving as important, often critical, travel corridors and wetland-to-upland
transitional habitats vital to the ecological needs and life cycle
of many wetland/watercourse dependent species, including many amphibians,
reptiles, birds and mammals whose survival is in jeopardy due to increasing
loss of such buffer area habitat. While undisturbed adjacent buffer
areas comprise a relatively small portion of the landscape, they,
in combinations with wetlands and watercourses, are irreplaceable
habitat links in the life cycles of the greatest proportion of area
wildlife, including game and nongame species, a number of which are
federal, state and county listed as special concern, rare, threatened
or endangered.
(b)
Serving as visual and noise barriers, protecting wetland/watercourse
wildlife from human disturbance.
(c)
Ameliorating potentially harsh environmental conditions by serving
as windbreaks and solar reflectors, facilitating the warming of surface
waters during early spring to produce water temperatures vital to
the initiation of the breeding cycles of many wetland-/watercourse-dependent
invertebrates, amphibians, reptiles and fish; and providing shade,
particularly during the growing season when the ambient heat load
progresses, allowing wetlands/watercourses to maintain cool, well-oxygenated
water supplies, and maintain atmospheric moisture levels amenable
to moisture-sensitive amphibians.
(d)
Controlling flooding by slowing overland runoff and absorbing
and storing substantial amounts of sheet flow, thereby assisting wetlands
and watercourses in controlling flooding and gradually releasing flood
flows to lower watersheds.
(e)
Trapping sediments in sheet flow, removing and assimilating
excess nutrients from stormwater, and intercepting the soil-erosive
force of precipitation, thereby protecting wetlands and watercourses
against eutrophication (excess nutrient enrichment) and sedimentation,
which can adversely affect proper wetland and watercourse functions
and values.
(f)
Providing the first line of defense in the protection of wetlands
and watercourses against the adverse impacts of stormwater-borne pollutants
of human origin, including fertilizers, herbicides, pesticides, heavy
metals, viral and bacterial agents associated with septic leachate,
and various types of petroleum products. In essence, wetland and watercourse
buffer areas work synergistically with aquatic resources to protect
groundwater and surface water quality.
(g)
Providing a practical and cost effective means of protecting
wetlands and watercourses and controlling or preventing pollution.
(h)
Absorbing and transpiring water with a resulting absorption
of heat energy, thereby creating a cooling effect on the local microclimate
and reducing soil saturation which allows for additional storage of
stormwater and a concomitant reduction in runoff potential; maintaining
soil porosity, thus further increasing soil water-holding capacity;
and preventing potentially adverse changes to wetland and watercourse
hydroperiod (duration of inundation or saturation near the surface)
which could trigger a change in floristic composition, adversely affecting
the physiology, germination and seedling development of wetland and
watercourse plant species, and the breeding activities of wetland-dependent
animals.
(i)
Providing often unique wetland-to-upland transitional communities,
with their own distinctive flora and fauna, unlike the habitat of
wetlands and watercourses and drier uplands between which they lie.
Consequently, buffer areas are critical ecological communities in
their own right and serve as unique areas of substantial value for
passive recreation, outdoor education and scientific research.
(3)
Upland adjacent areas surrounding wetlands and watercourses provide
an essential protective buffer with benefits which are significant
for maintaining the functional integrity and quality of such resources,
and for furnishing protection against adverse impacts from activities
in surrounding land areas.
(4)
Many factors affect the ability of buffer areas of various widths
to protect wetlands and watercourses, including, but not limited to,
type and extent of vegetative cover, time of travel of overland flow,
adjacent land uses, amount of impervious cover, slope, soil type and
drainage characteristics.
(5)
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. Without increased protection and larger intact upland buffer
areas, remaining wetlands and watercourses are in greater jeopardy
of being lost, despoiled, or impaired by such acts, contrary to the
public safety and welfare.
(6)
It is therefore the policy of the Town of Lewisboro to protect its
citizens, including generations yet unborn, by preventing the despoliation
and destruction of wetlands and watercourses, while taking into account
varying ecological, economic, recreational, and aesthetic values.
Activities that may damage wetlands and watercourses should be located
on upland areas, separated by densely vegetated upland buffer areas
of sufficient width.
B.
Intent. It is the intent of the Town of Lewisboro that activities
in and around wetlands, watercourses and associated buffer areas be
conducted in conformance with the provisions of this chapter and in
a manner which promotes the preservation of wetlands, watercourses
and associated buffer areas as specified in the findings of fact set
forth herein; conforms with all applicable building codes, sediment
control regulations, and other applicable regulations; and does not
threaten public safety or the natural environment, or cause nuisances
or adversely affect the natural functions of wetlands and watercourses
by:
(1)
Impeding flood flows, reducing flood storage areas, or destroying
storm barriers, thereby resulting in increased flood heights, frequencies,
or velocities on other lands.
(2)
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; placement
of unstabilized fills; or the disturbance or removal of wetland soils
and vegetation serving pollution and sediment control functions.
(3)
Increasing erosion and subsequent sedimentation.
(4)
Decreasing breeding, nesting and feeding areas for many species of
waterfowl and shorebirds, including those that are listed as "special
concern," "rare," "threatened" or "endangered."
(5)
Interfering with the exchange of nutrients needed by fish and other
forms of wildlife.
(6)
Decreasing habitat for fish, reptiles and amphibians, and other forms
of wildlife.
(7)
Adversely altering the recharge or discharge functions of wetlands,
thereby impacting groundwater or surface water supplies.
(8)
Significantly altering the wetland hydroperiod and thereby causing
either short- or long-term changes in wetland and watercourse community
composition, soils characteristics, nutrient recycling, or water chemistry.
(9)
Destroying sites valued for education and scientific research, such
as outdoor biophysical laboratories, living classrooms, and training
areas.
(10)
Interfering with public rights in navigable waters and the recreation
opportunities provided by wetlands and watercourses for hunting, fishing,
boating, hiking, bird watching, photography, camping, and other uses.
(11)
Destroying or damaging aesthetic and property values, including
significant public viewsheds.
(12)
Destroying or reducing undisturbed adjacent upland areas surrounding
wetlands and watercourses, which provide a protective buffer.
A.
Words or phrases used in this chapter and not elsewhere defined in this chapter, shall be interpreted as defined below, and where ambiguity exists, words or phrases shall be interpreted so as to give this chapter its most reasonable application in carrying out the regulatory goals stated in § 217-1 herein.
B.
ACTIVITY
ACTIVITY IMPLEMENTATION PERMIT
ACTIVITY PERMIT
APPLICANT
AQUACULTURE
BOUNDARY OF A BUFFER AREA
BOUNDARY OF A WATERCOURSE
BOUNDARY OF A WETLAND
BUFFER AREA
CERTIFICATE OF COMPLIANCE
CLEARANCE FORM
CLEAR-CUTTING
COMMISSIONER
CONSERVATION ADVISORY COUNCIL
DAMS AND WATER CONTROL MEASURES
DATE OF RECEIPT OF APPLICATION
DEPOSIT
DISCHARGE
DOMINANT(S) or DOMINANCE
DRAIN
DREDGE
DRY HYDRANT
ECOLOGIST/BOTANIST
EXCAVATE
FACULTATIVE SPECIES
FACULTATIVE UPLAND SPECIES
FACULTATIVE WETLAND SPECIES
FERROUS IRON
FILL
FRESHWATER WETLANDS MAP
GRADING
GROWING SEASON
HISTOSOL
HYDRIC SOIL
HYDROPHYTE
HYDROPHYTIC VEGETATION
LONG DURATION (FLOODING)
MATERIAL
MICROSITE
MINERAL SOIL
MITIGATION PLAN
MUNICIPALITY
MUNSELL SOIL COLOR CHARTS
OBLIGATE UPLAND SPECIES
OBLIGATE WETLAND SPECIES
PERMIT
PERMIT, ACTIVITY
PERMIT, ACTIVITY IMPLEMENTATION
PHYSICALLY COMPLETED
PLANNING BOARD
POLLUTION
PROJECT
REGULATED ACTIVITY OR USE
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
REMOVE
REPAIR; REPLACEMENT
RESTORATION PLAN
SELECTIVE CUTTING
SOIL SCIENTIST
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
STRUCTURE
VERNAL POOL
VERY LONG DURATION
WATERCOURSE
WATER TABLE
WETLAND; FRESHWATER WETLAND
WETLAND HYDROLOGY
WETLAND INSPECTOR
WETLAND/WATERCOURSE DELINEATOR
Definitions. As used in this chapter, the following terms shall have
the meanings indicated:
See "regulated activity or use."
See "permit, activity implementation."
See "permit, activity."
A person, including a corporation, partnership or any entity
which files an application for a permit under this chapter and which
is either the owner of land on which the proposed regulated activity
would be located, a contract vendee, a lessee of the land, the person
who would actually control and direct the proposed activity, or the
authorized agent of such person.
Growing, managing, and harvesting aquatic or semi-aquatic
species, including animals and plants, e.g., crayfish, mussels, fish
and duckweed, that are produced naturally in freshwater wetlands,
and installing cribs, racks, and other in-water structures for cultivating
these species; but does not include filling, dredging, fertilizing,
peat mining, clear cutting, or the construction of any buildings or
any water-regulating structures, such as dams.
The outward limit of a buffer area as defined in this section.
The outward limit of standing or flowing water of a watercourse
as defined in this section.
The outward limit of the wetland soils and/or wetland vegetation
as defined under "wetland/freshwater wetland."
The area extending 150 linear feet along the surface, away
from, and around the perimeter of the outermost boundary of a wetland
and/or watercourse.
That form of written confirmation by the Wetland Inspector
that all authorized regulated activities have been physically completed
in accordance with this chapter and an authorizing activity permit
and/or activity implementation permit, as required.
That form of written clearance issued by the Wetland Inspector,
indicating that a permit, as defined herein, is not required in order
to carry-out any land altering activity or use requiring a permit
or approval from the Town of Lewisboro, or which may affect wetlands,
watercourses and/or buffer areas as defined in this section.
Any cutting of live trees four inches or more in diameter
at breast height above the ground by more than 30% per contiguous
acre of any wetland, and/or regulated buffer area, during a single
ten-year period as determined on the basis of wetland area per lot
or group of lots under single ownership.
The Commissioner of the Department of Environmental Conservation
of the State of New York.
That body established by the Town Board pursuant to the General
Municipal Law, having responsibility for conservation activities.
Any natural or constructed barrier which obstructs or controls
the flow of water, or can be operated to raise, lower, or maintain
the water level of any wetland or watercourse.
An 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 a fully completed application, including receipt of
all necessary or appropriate supporting plans pursuant to the provisions
of this chapter.
To fill, grade, discharge, dump, or place any material.
The channeling, directing, or redirecting of any solid, liquid
or gaseous, substance or material, whether or not such substance causes
pollution.
A dominant species is either the predominant plant species
of a plant community which is directly discernible or measurable in
the field (i.e., the only species dominating a vegetative unit, by
a spatial extent of 50% or greater) or a codominant species (i.e.,
one of two or more species which dominate a vegetative unit). The
measures of spatial extent shall be percent area cover for all vegetation
units and/or the basal area of trees.
To remove or reduce, or cause to remove or reduce the flow
or volume of surface water or groundwater.
To excavate or remove sediment, soil, mud, sand, shells,
gravel or other aggregate material.
A nonpressurized pipe system that is readily accessible to
fire district apparatus, provides for the withdrawal of water by suction
to such fire district apparatus, and is permanently installed into
an existing lake, pond or stream that has been determined by a fire
district to be a dependable source of water.
[Added 8-14-2017 by L.L.
No. 2-2017]
A qualified expert having knowledge of the physical, chemical
and biological sciences related to the physiology, identification,
distribution and general ecology of wetlands and watercourses; of
upland plant and animal species and associated communities; and of
methods to delineate and describe wetland and watercourse resources,
communities and habitats. This individual must possess a minimum of
two years' experience in wetland/watercourse delineation and wetland/watercourse
report preparation and hold at least a bachelors degree, with a minimum
of 30 semester hours (credits), or equivalent, in biology, physical
science, and chemistry, with a minimum of eight semester hours (credits),
or equivalent, in botany, including field identification of animal
and plant species. Individuals who do not meet the above minimum qualifications
but who possess at least 10 years' experience identifying and mapping
native vegetation are qualified if they have completed at least 12
semester hours (credits), or equivalent, in botany, including field
identification of animal and plant species.
To dig out, cut away from the existing grade, relocate or
remove any material by hand or machine.
Plant species that occur with equal probability in both upland
and wetland or watercourse systems.
Plant species with an estimated probability of 67% to 99%
of occurring in uplands, but occasionally in wetlands and watercourses.
Plant species with an estimated probability of 67% to 99%
of occurring in wetlands and watercourses, but occasionally in uplands.
The chemically reduced form of iron found in waterlogged
soils.
See "deposit."
The accumulated delineation of wetlands and watercourses
within areas of the Town of Lewisboro as accepted by the Planning
Board in the course of the application of this chapter, including
but not limited to wetlands and watercourses as shown on the final
Freshwater Wetlands Maps for Westchester County promulgated by the
Commissioner of the New York State Department of Environmental Conservation
pursuant to § 24-0301, Subdivision 5, of the Environmental
Conservation Law (the New York State Freshwater Wetlands Act), or
such maps as have been amended or adjusted, and on which are indicated
the approximate location of the actual boundaries of wetlands regulated
pursuant to Article 24 of the Environmental Conservation Law; and
as shown on National Wetlands Inventory Map as promulgated by the
United States Department of the Interior, Fish and Wildlife Service.
To alter or change the existing surface of land by such acts
as excavating, ditching, leveling, filling or otherwise altering the
existing or natural contours of the land surface.
The portion of the year when soil temperatures are above
biological zero (41° F. or 5° C.); the growing season
for Westchester County is March through October.
A taxonomic order of soils which include organic soils (mucks
and peats) consisting of greater than 90% organic matter content to
a thickness of at least 16 inches above bedrock, or of any thickness
above bedrock lying within 16 inches of the surface.
A soil that is saturated, flooded, or ponded long enough
during the growing season to develop anaerobic conditions in the upper
part and as further defined under "wetland/freshwater wetland."
Any readily visible plant species that grows in water or
on a substrate that is at least periodically deficient in oxygen as
a result of excessive water content. Hydrophytes include plant species
classified as facultative, facultative wetland and obligate wetland
species.
An assemblage of one or more plant species growing in a common
aquatic environment or on a substrate that is at least partially deficient
in oxygen as a result of excessive water content. Hydrophytic vegetation
includes the sum of those dominant plant species occurring in a wetland
that are designated as "facultative" (FAC), "facultative wetland"
(FACW) and/or "obligate wetland" (OBL) as recorded in the National
List of Plant Species that Occur in Wetlands: Northeast (Region 1)
or the National List of Plant Species that Occur in Wetlands; New
York, developed by the U.S. Department of the Interior Fish and Wildlife
Service in cooperation with the National and Regional Wetland Plant
Review Panels, as amended and updated from time to time.
A period of time in which inundation for a single event ranges
from 14 days to one month.
Liquid, solid, or gaseous substances including but not limited
to soil, silt, 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 area of a plant community supporting plant species
atypical of the hydrologic regime of the predominant plant species
composition. Microsites may be drier or wetter than surrounding areas
as a result of altered drainage, incidental topographic variation
or a related characteristic, and may support plant species of greater
or lesser wetland/watercourse affinity.
A soil consisting predominantly of, and having its properties
determined largely by, mineral matter. Mineral soils usually contain
less than 20% organic matter by weight.
The plan prepared by an applicant to compensate for proposed
wetland, watercourse and buffer area impacts pursuant to the standards
and requirements of this chapter, upon demonstration that either losses
or impacts to the wetland, watercourse or regulated buffer area are
necessary and unavoidable as defined herein and have been minimized
to the maximum extent practicable as determined acceptable by the
Planning Board.
The Town of Lewisboro.
A soil color designation system that characterizes the three
variable aspects of color: hue, value and chroma. The soil color charts
are produced by the Kollmorgen Corporation, 1975, and are revised
from time to time.
Plant species that, under natural conditions, almost always
occur in uplands (i.e., greater than 99% of the time). Obligate upland
species for the northeast are listed in Wetland Plants of the State
of New York 1988 published by the U.S. Fish and Wildlife Service in
cooperation with the National and Regional Wetland Plant List Review
Panels and as updated from time to time.
Plant species that, under natural conditions, nearly always
occur in wetlands (i.e., greater than 99% of the time). Obligate wetland
species for the northeast are listed in Wetland Plants of the State
of New York 1988 published by the U.S. Fish and Wildlife Service in
cooperation with the National and Regional Wetland Plant List Review
Panels and as updated from time to time.
See "activity permit" and "activity implementation permit."
That form of written approval issued by the Planning Board
for the conduct of a regulated activity or use within a wetland, watercourse
and/or buffer area. Where similar jurisdiction exists with the New
York State Department of Environmental Conservation or with other
state, regional or federal agencies, a permit issued by one of these
agencies will not be considered a permit for the conduct of activities
regulated by this chapter.
That form of written approval, issued by the Wetland Inspector, as authorized pursuant to § 217-6D of this chapter or in accordance with an activity permit issued by the Planning Board.
The actual completion of all construction and land use altering
activities as authorized pursuant to an activity permit and/or activity
implementation permit.
That body established by the Town Board pursuant to the Town
Law of the State of New York. The Planning Board is the municipal
board empowered to grant, deny or issue conditional activity permits
pursuant to this chapter, to require the posting of bonds as necessary,
to revoke or suspend a permit where lack of compliance with the permit
is established, or to adjudicate violations and assess penalties.
Any departure from the natural range of variation in the
physical, chemical or biological conditions or properties of a natural
system. Any harmful thermal effect; or the contamination or rendering
unclean or impure of any wetland, watercourse or buffer area by reason
of erosion, or by any waste or other materials discharged or deposited
therein, including but not limited to changes in temperature, odor,
color, turbidity, pH, or taste.
Any proposed or ongoing action, construction activity, or
alteration of the landscape, including applications of fertilizers
or biocides, which may result in demonstrable direct or indirect physical,
chemical or biological impacts to a wetland, watercourse and/or buffer
area, including but not limited to any regulated activity as set forth
herein.
Any activity or use within a wetland, watercourse and/or buffer area not specifically determined by the Planning Board or the Wetland Inspector to be an allowable activity as set forth in § 217-5B of this chapter, or a prohibited activity as set forth in § 217-5A of this chapter, is a regulated activity as set forth in § 217-5C and requires the prior issuance of a written activity permit from the Planning Board, as well as an activity implementation permit from the Wetland Inspector, in accordance with the standards and procedures of this chapter. Regulated activities and uses include, but are not limited to:
Placement or construction of any structure, driveway or roadway.
Any form of draining, dredging, excavation or removal of material,
either directly or indirectly.
Any form of dumping, filling or depositing of material either
directly or indirectly.
Installation of any service lines or cable conduits.
Introduction of any form of pollution, including but not limited
to the installation of a septic tank or fields, the running of a sewer
outfall or the discharging of sewage treatment effluent or other liquid
wastes into or so as to drain into a wetland, watercourse or buffer
area.
Alteration or modification of natural features and contours.
Alteration or modification of natural drainage patterns.
Construction of dams, docks or other water control devices,
pilings or bridges, whether or not they change the natural drainage
characteristics.
Installation of any pipes or wells.
Clear cutting of any area of trees.
Removal or cutting of any vegetation except permitted selective
cutting.
Deposition or introduction of organic or inorganic chemicals,
including pesticides and fertilizers.
Any agricultural activity which involves drainage or excavation
of a wetland.
Any other activity that may impair the natural function(s) of a wetland, watercourse or buffer area as described in § 217-1 of this chapter.
To dig, dredge, take away, relocate, drain, bulldoze, dragline,
blast, or otherwise excavate or grade.
Any repair or replacement in-kind, provided that the height,
size and/or spatial extent of the affected area does not change.
The plan prepared by an applicant to restore, mitigate and
otherwise correct unauthorized activities or existing conditions,
as approved by the Planning Board.
Any cutting of trees within the boundaries of a wetland,
watercourse or buffer area that is not clear cutting as defined herein.
A qualified expert having special knowledge of the physical,
chemical, and biological sciences applicable to the genesis and morphology
of soils and of the methods to identify, describe, classify, and map
soil units. This individual must possess a minimum of two years' experience
in identifying, classifying and mapping soils, or comparable field
experience, or a master's degree in soil science; and a bachelor's
degree, with a minimum of 30 semester hours (credits) or equivalent
in biology, physical science and earth science, with a minimum of
eight semester hours (credits) or equivalent in soil science. Individuals
who do not meet the above minimum qualifications but who possess at
least 10 years' experience in mapping soils are qualified if they
have completed at least 12 semester hours (credits) or equivalent
in soil science.
Article 8 of the New York State Environmental Conservation
Law.
Anything constructed or erected, the use of which requires
location on, under or in the ground or attachment to something having
location on, under or in the ground, including but not limited to
buildings, tennis courts, and swimming pools.
Relatively open areas of surface water formed in depressions
within uplands that are inundated to a minimum depth of six inches
for three to four months during the growing season (usually March
through June) and that are devoid of fish and contain amphibians (adults,
egg masses or larval stages) during the growing season. Vernal pools
are the exclusive breeding habitats of several amphibians that are
becoming increasingly rare throughout the northeast, notably: Eastern
wood frog (Rana sylvatica), Jefferson salamander (Ambystoma jeffersonianum;
NYSDEC listed special concern); marbled salamander (Ambystoma opacum;
NYSDEC listed special concern), blue spotted salamander (Ambystoma
laterale; NYSDEC listed special concern), and spotted salamander (Ambystoma
maculatum).
A duration of time for a single event which lasts longer
than one month.
Any natural or artificial, permanent or intermittent, public
or private standing or flowing water body, such as ponds, lakes, reservoirs,
rivers, streams, brooks, vernal pools, waterways, or drainageways
that are contained within, flow through, or border on the Town of
Lewisboro. For the purposes of this definition, "intermittent" shall
mean that surface water stands or flows for at least total of three
continuous months in a consecutive twelve-month period.
The zone of saturation at the shallowest average depth from
the surface during the wettest season.
All areas that comprise hydric soils and/or are inundated
or saturated by surface or ground water at a frequency and duration
sufficient to support a prevalence of hydrophytic vegetation. Refer
to Appendix A at the end of this chapter for the Technical Criteria
for Wetland Identification.
The dynamics of water movement and changes in water supply
to areas that are inundated or saturated to within 16 inches of the
surface during the growing season long enough to support a dominance
of hydrophytic vegetation.
The administrative official defined by the implementing regulations
of the New York State Freshwater Wetlands Act [6 NYCRR 665.5(a)] appointed
by the Town Board to fulfill the designated responsibilities set forth
in this chapter.
An individual(s) with the combined qualifications of an ecologist/botanist
and soil scientist as defined herein.
B.
Rules for establishing and interpreting wetland/watercourse boundaries. The boundaries of a wetland and/or watercourse shall be determined by field investigation and delineation by a qualified environmental professional, subject to approval by the Planning Board, and subsequent survey and mapping by a New York State licensed land surveyor unless waived by the Planning Board. The Planning Board may consult and/or may require the applicant to consult with biologists, hydrologists, soil scientists, ecologists/botanists, or other experts as necessary to make this determination pursuant to the definition criteria contained in § 217-2 herein.
C.
Grandfathered projects. The provisions of this chapter shall not
apply to any land use, improvement, or development physically completed
prior to the effective date of this chapter.
D.
Current projects. A regulated activity that has received an approval,
a SEQR negative declaration or has been the subject of a findings
statement prior to the effective date of this chapter, but which is
not in conformity with the provisions of this chapter may be continued
subject to the following:
(1)
All such activities shall continue to be governed by the laws of
the Town of Lewisboro in effect at the time of approval.
(2)
No such activity shall be expanded, changed, enlarged, or altered
in such a way that increases its size or impact without compliance
with this chapter.
(3)
If such activity is discontinued for 12 consecutive months, any resumption
of the activity shall conform to this chapter.
(4)
If any such use or activity is destroyed by human action or the forces
of nature, it shall not be resumed except in conformity with the provisions
of this chapter.
E.
No permit
or approval shall be issued pursuant to this chapter if there is an
outstanding violation or unpaid fine with regard to the property that
is the subject of such application. Notwithstanding the above, a permit
or approval may be issued to specifically address an outstanding violation
or to address an immediate hazardous condition in the interest of
the health, safety and welfare of the community. In the case of unpaid
fines, no application shall be processed until such fine is paid.
[Added 11-9-2020 by L.L. No. 9-2020]
A.
All applications of any land use development or land altering or
disturbance permit issued by the Building Department, Highway Superintendent,
Architecture and Community Appearance Review Council, Town Board,
Planning Board, or Zoning Board of Appeals of the Town of Lewisboro
shall be accompanied by an authorized wetland/watercourse clearance
form, which shall be obtained by an applicant from the Wetland Inspector.
(1)
An applicant shall provide sufficient information to enable the Wetland
Inspector or other authorized representative to properly determine
if the requested permit action will impact regulated wetlands, watercourses
or buffer areas, and if so, to determine if the requested permit action
is an allowable activity or use that does not also require a wetland/watercourse
permit; is a prohibited activity; is a regulated activity or use which
also requires an activity implementation permit as issued by the Wetland
Inspector; or is a regulated activity or use which also requires an
activity permit as issued by the Planning Board, all in accordance
with the standards and procedures set forth in this chapter.
(2)
The Wetland Inspector or other authorized representative may require
an applicant to provide additional information, including but not
limited to a qualified wetland delineation, report and survey, to
assist in making such a determination; and may further defer the making
of said determination to the Planning Board.
(3)
The Wetland Inspector or other authorized representative may conduct
a site visit.
(4)
False or misleading statements or information provided in a clearance form shall result in the invalidation of any authorization pursuant to § 217-5C(1)(a) herein. The applicant shall be subject to the penalties and sanctions set forth in this chapter for any activities conducted which would have otherwise required an activity permit.
B.
A completed clearance form by the Wetland Inspector or other authorized representative shall determine one of the following, provided the proposed activity is not prohibited pursuant to § 217-5A of this chapter:
(1)
That the proposed activity or use is an allowable activity or use pursuant to § 217-5B of this chapter, and no permit is required, thus the Wetland Inspector shall sign and issue a wetland/watercourse clearance form indicating same; or
(2)
That the proposed activity or use does not occur within a wetland,
watercourse or buffer area, and no permit is required, thus the Wetland
Inspector shall sign and issue a wetland/watercourse clearance form
indicating same; or
C.
Subsequent activities or uses affecting the same property shall require
separate authorization via completion of a new or separate clearance
form, following the same standards and procedures as set forth herein
for the original action.
A.
Prohibited activities. The following activities are prohibited as
indicated:
(1)
Placement of a sewage disposal tank or plant or septic field within
any wetland or watercourse.
(2)
Direct discharge of untreated stormwater runoff into a wetland or
watercourse.
(3)
The placement of aboveground or underground chemical storage facilities
or bulk petroleum storage tanks within a wetland, watercourse or buffer
area.
(4)
Animal feed lots or pens or manure storage within a wetland, watercourse
or buffer area.
(5)
Deposit or fill consisting of construction and demolition materials,
asphalt or other materials within a wetland, watercourse or buffer
area.
B.
Allowable activities and uses not requiring a permit or clearance
form. The following activities and uses may be conducted without a
permit or clearance form being issued pursuant to the standards and
procedures of this chapter, to the extent that they are not prohibited
by this or any other law, or ordinance, rule or regulation; and such
activities do not require structures, grading, filling, draining or
dredging, except as allowed below:
[Amended 8-14-2017 by L.L. No. 2-2017; 4-26-2021 by L.L. No. 5-2021]
(1)
Normal ground maintenance of existing landscaped areas and residential
gardens, including mowing of existing lawn areas and the trimming
and removal of dead or diseased vegetation.
(2)
Selective cutting, provided stumps are left in place and work is
accomplished without the assistance of any motorized vehicle.
(3)
Repair or replacement, in-kind, of walkways, terraces, patios, walls,
seawalls, fences, driveways and roadways, provided that the height,
size and/or spatial extent (i.e., no increase in the area beyond the
existing footprint) of the affected area does not change and appropriate
erosion are maintained.
(4)
Public health activities, orders and regulations of the Westchester
County District of Health and/or New York State District of Health
for emergencies only, with prior notification to the Planning Board.
(5)
Recreational activities, not involving new or expanded land disturbances
or structures, and recreational fishing, hunting, swimming and boating
as otherwise permitted or allowed.
(6)
Activities of farmers and other landowners as set forth in § 24-0701(4)
of the Environmental Conservation Law.
(7)
Normal building or structure maintenance activities, including periodic
pumping of septic tanks and interior and building or structure exterior
repairs and improvements which do not enlarge or expand the building
or structure, or require excavation, filling, or other similar disturbances
and alterations (temporary or permanent).
(8)
Seasonal installation and removal of docks (does not include the
construction or installation of new, expanded or enlarged docks).
(9)
Normal maintenance and repair of existing swimming pools, tennis
courts and other existing recreational facilities. The development
or establishment of new or expanded recreational facilities and/or
uses is a regulated activity.
(10)
Withdrawals of water through a dry hydrant by a fire district
in response to a fire emergency and for firefighting training purposes.
(11)
Repairs to, and testing and maintenance of, a dry hydrant by
a fire district.
(12)
Installation of one shed not exceeding 144 square feet in footprint
located within the wetland buffer area so long as no tree removal
or installation of utilities is proposed and that the maximum cut
or fill is limited to no greater than an increase or decrease of two
feet from the elevation of existing grade at the proposed shed location.
[Amended 5-24-2021 by L.L. No. 6-2021]
(13)
Installation of emergency generators and associated trenching
within the wetland buffer area, but not including the installation
of underground propane tanks.
(14)
Removal of underground fuel storage tanks.
(15)
Construction of a deck which is accessory to and attached to
a single-family residence and located within the wetland buffer, provided
said deck does not exceed 500 square feet in area and does not encroach
upon a wetland boundary. All supports and footings for the deck shall
be hand dug, and any excess fill shall be removed from the property
or spread evenly underneath the deck and stabilized. The Building
Inspector shall expressly condition any necessary approval(s) upon
compliance with these parameters.
[Amended 5-24-2021 by L.L. No. 6-2021]
(16)
Construction of a fence which is accessory to a single-family
residence provided that hand-dug support posts are utilized for the
fence.
[Added 5-24-2021 by L.L.
No. 6-2021]
C.
Regulated activities requiring an activity implementation permit.
[Amended 8-14-2017 by L.L. No. 2-2017; 4-26-2021 by L.L. No. 5-2021]
(1)
The following regulated activities shall require an activity implementation
permit as issued by the Wetland Inspector:
(a)
All authorized regulated activities pursuant to an approved
activity permit, as issued by the Planning Board.
(b)
Swimming pools accessory to a single-family residence located
no closer than 50 linear feet to a wetland or watercourse, including
associated grading.
(c)
Terrace or patio accessory to a single-family residence, with
a ground footprint area of less than 500 square feet and located no
closer than 50 linear feet to a wetland or watercourse, including
associated grading.
(d)
Repair of existing septic disposal facilities.
(e)
Permitted single-family residential building additions, structural
alterations, replacements, or detached accessory structures not exceeding
a ground footprint area of 600 square feet and located no closer than
50 linear feet to a wetland or watercourse, including associated grading,
provided that associated grading or land disturbance is less than
10,000 square feet in spatial extent and maximum fill or cut is limited
to no more than an increase or decrease of two feet from the elevation
of existing grade.
(f)
Permitted single-family residential accessory use located no
closer than 100 linear feet to a wetland or watercourse, including
associated grading, provided associated grading or land disturbance
is less than 10,000 square feet in a spatial extent and maximum fill
or cut is limited to no more than an increase or decrease of two feet
from the elevation of existing grade.
(g)
The installation of a dry hydrant by or under the authority
of a fire district, provided such dry hydrant is used for firefighting
purposes and firefighting training purposes.
(h)
Any activity requiring Planning Board review and approval which
the Planning Board duly refers to the Wetland Inspector for disposition,
including any conditions thereto.
(i)
Construction of a deck in excess of 500 square feet in area,
which is accessory to and attached to a single-family residence utilizing
hand-dug support posts and footings, provided there is no machine
activity or grading and that any excess fill shall be removed from
the property or spread evenly underneath the deck and stabilized.
[Amended 5-24-2021 by L.L. No. 6-2021]
(j)
The construction of a covered porch with a ground footprint
area of less than 500 square feet and located no closer than 50 feet
from a wetland or watercourse, inclusive of associated grading.
[Added 5-24-2021 by L.L.
No. 6-2021]
(2)
At the discretion of the Wetland Inspector, the review and approval of any of the regulated activities set forth in Subsection C(1) above may be referred to the Planning Board for its review and action.
(3)
Appeals of decisions by the Wetland Inspector shall be made to the
Planning Board, in writing, within 30 days. The Planning Board may
review all appeals in accordance with the procedures pertaining to
an activity permit.
D.
Regulated activities requiring an activity permit.
(1)
The following regulated activities shall require an activity permit
as issued by the Planning Board, prior to the issuance of an activity
implementation permit by the Wetland Inspector:
(a)
Any regulated activity in a wetland or watercourse proper, except as set forth in § 217-5B of this chapter.
(b)
Any regulated activity in a wetland, watercourse or buffer area not delegated to the Wetland Inspector for review and approval as set forth in § 217-5C of this chapter.
(c)
All regulated activities ancillary to a corresponding application
to the Planning Board for site development elan approval, special
permit approval or subdivision approval.
(d)
All nonresidential development activities in wetlands, watercourses
or buffer areas.
(e)
All new single-family residential development on an undeveloped
or vacant parcel, including all principal and accessory site improvements,
land uses, buildings and structures in or affecting wetlands, watercourses
or buffer areas.
(2)
The Planning Board, upon findings that a proposed action is consistent with the activities as set forth in § 217-5C subject to Wetland Inspector approval, may refer any regulated activity subject to its review and approval for disposition by the Wetland Inspector, and may attach conditions thereto.
A.
No person, applicant or property owner shall commence, undertake,
conduct or maintain a regulated activity or use without first obtaining
all required permits for such regulated activity or use from the Planning
Board and/or Wetland Inspector. Applications for permits required
herein shall be on forms as furnished by the Planning Board and/or
Wetland Inspector, respectively, and include all application materials
in a manner and content as required herein.
B.
Any person, applicant or property owner found to be conducting or
maintaining a regulated activity or use without the prior proper clearance,
authorization or permit approval, or violating any provision of this
chapter, shall be subject to the enforcement proceedings and penalties
prescribed herein, and any other applicable remedies as provided by
law.
C.
The placement of sewage disposal tanks, plants, and septic fields
is not encouraged within a buffer area, and may only be considered
when all other potential feasible alternatives have been thoroughly
explored and determined to be infeasible. Such facilities shall be
assessed and designed consistent with the requirements of the New
York City Department of Environmental Protection and the Westchester
County Health Department.
D.
Procedure for an activity implementation permit, as issued by the
Wetland Inspector:
(1)
An application for an activity implementation permit shall be filed
with the Wetland Inspector, including all materials, information,
reports and plans as determined necessary to review and evaluate the
proposed action by the Wetland Inspector.
(2)
The Wetland Inspector shall conduct a site inspection and may require
the applicant to stake or otherwise locate in the field all pertinent
locations of a proposed activity, including wetlands, watercourses
and buffer areas.
(3)
The Wetland Inspector shall report regularly and meet periodically
with the Planning Board regarding the content and status of activity
implementation permit applications and denial or approvals of same.
Copies of all activity implementation permit denials or approvals
shall be provided to the Planning Board.
(4)
The Wetland Inspector shall conduct periodic site inspections during the implementation or construction phase of an authorized regulated activity, as needed and in accordance with § 217-9H of this chapter, to ensure that all granted permits are being completed in accordance with the provisions of this chapter and the issued permit approval.
E.
Procedure for a permit through an application to the Planning Board
for stormwater pollution prevention plan, subdivision, special permit
or site development plan approval.
[Amended 12-18-2007 by L.L. No. 6-2007]
(1)
The permit application shall be considered in the context and procedural
requirements of the overall stormwater pollution prevention plan,
subdivision, special permit or site plan approval application.
(2)
A separate application for an activity permit shall be completed, as set forth in Subsection F below, by the applicant and submitted with all other required applications.
(3)
All public hearings shall be coordinated where possible.
(4)
Approval of the stormwater pollution prevention plan, subdivision,
special permit or site plan application shall require the issuance
of a separate wetland/watercourse activity permit.
F.
Procedure for an activity permit, as issued by the Planning Board,
not requiring any additional Planning Board approval.
(1)
Application. An application for an activity permit shall be filed with the Planning Board, including all materials, information, reports and plans as set forth in § 217-7 of this chapter.
(2)
Site inspections.
(a)
After receipt of all required application materials, the Planning
Board may schedule a site inspection. The applicant shall stake in
the field all pertinent locations of a proposed activity as directed
by the Planning Board.
(b)
Additional site visits may be required, depending upon the complexity
and extent of regulated activities proposed, and the seasonality of
the submission.
(3)
Referral to CAC. All applications for an activity permit shall be
referred to the Town of Lewisboro Conservation Advisory Council (CAC)
for review and recommendations, which recommendations shall be duly
considered by the Planning Board.
(4)
Referral to professional consultants. The Planning Board, in the
review of any application for an activity permit approval, may refer
such application to such planner, engineer, legal, or environmental
expert, soil scientist, ecologist, biologist, or other professional
as the Planning Board shall deem reasonably necessary to assist it
in the review of such application as required by law. The cost for
such professional services may be required to be reimbursed to the
Town by an applicant in accordance with the standards and procedures
for fees and escrow accounts as set forth in this chapter.
(5)
No other permit covering the regulated activity shall be approved
or issued until the Planning Board issues an activity permit.
(6)
Public hearing and notice.
(a)
Insofar as possible, any public hearing on an application for
an activity permit shall be integrated with any public hearing required
or otherwise held pursuant to any other law, including the State Environmental
Quality Review Act.
(b)
All hearings shall be open to the public and minutes of each
public hearing shall be made. The minutes of any public hearing shall
become part of the permanent record of a permit application. In the
event that a verbatim record or transcription is made by the applicant,
a copy of same shall be provided to the Planning Board at no cost
to the Planning Board. Any party may present evidence and testimony
at the public hearing. At the public hearing, the applicant shall
have the burden of demonstrating that the proposed activity will be
in accord with the goals and policies of this chapter and the standards
set forth herein.
(c)
Any public hearing may be extended, adjourned, reconvened or
closed at the discretion of the Planning Board at any time prior to
the issuance of an activity permit by the Planning Board.
(d)
An applicant shall give prior written notice to affected property
owners, as hereinafter defined, by certified mail, return receipt
requested, mailed not less than 15 days prior to the date of the public
hearing. The notice shall be provided by the Planning Board through
its secretary, who shall also publish the same in the official newspaper
of the Town of Lewisboro at least five days prior to the public hearing.
[Amended 9-20-2004 by L.L. No. 2-2004; 3-18-2013 by L.L. No.
3-2013]
[1]
"Affected property owners" shall be defined as owners of properties
neighboring or in the vicinity of the property for which the application
has been filed ("subject property") as listed in the current Town
Assessor records, as follows:
[a]
In the R-4A and R-2A Districts, property owners
within 500 feet of the perimeter of the subject property.
[b]
In the R-1A, R-1/2A and R-1/4A, R-2F-10 and R-2F-7.5
Districts, property owners within 250 feet of the perimeter of the
subject property.
[c]
In the R-MF District, property owners within 250
feet of the perimeter of the subject property.
[d]
In all nonresidential districts, property owners
within 250 feet of the perimeter of the subject property.
[e]
If notice is to be given to the common element
of a condominium, it shall not be necessary to provide notice to each
owner of an undivided interest in the common element of the condominium.
In such case, notice must be given to the managing agent of the condominium
and the chair of the board of managers of the condominium.
[2]
At the public hearing, the applicant shall submit the receipts
evidencing proof of mailing and a copy of the notice actually sent,
certified to be true and accurate. The applicant shall also submit
an affidavit of mailing, a location map (such as a copy of the tax
map or its equivalent) sufficient to show the parcels to which notices
were mailed and a directory showing the names of the property owners
on the map.
[3]
For each such application, the applicant shall post a sign,
to be supplied by the Town, on the subject property on or before the
seventh day prior to the scheduled opening of the public hearing.
Such sign shall be placed in a location plainly visible from the most
commonly traveled street or highway upon which the subject property
fronts. In no case shall the sign be more than 10 feet from the front
lot line and shall be at least 4 feet above the ground.
[4]
In the event an application is withdrawn, becomes inactive,
or the public hearing is closed, the applicant shall remove the sign
within five business days. For the purposes of this section, any application
which has not appeared on the Planning Board's agenda for three months
or more shall be designated inactive. If an application is thereafter
reactivated, signs shall be posted within three days.
[5]
Prior to the commencement of the public hearing, the applicant
shall submit a sworn certification, with photographic evidence, to
verify the placement and maintenance of the required sign.
[6]
An applicant shall deposit the sum of $50 with the Planning
Board Secretary to insure the return of the sign in good condition.
Such deposit shall be returned to the applicant unless the sign is
not returned in a condition substantially equivalent to its condition
when provided to the applicant.
[7]
The legal notice shall be in a form prescribed by the Planning
Board and shall:
[a]
Describe the proposed regulated activity; specify
the location and Tax Assessor identification of the subject property;
and specify the name and address of the property owner and applicant.
[b]
Specify that persons wishing to comment on the
proposed application can do so in writing or at the public hearing.
[c]
Specify that the proposed application materials,
including all documents and maps therewith, are available for public
inspection at the office of the Planning Board prior to the public
hearing.
[8]
Inactive permit applications. All permit applications must be
diligently pursued by an applicant. Should any application before
the Planning Board remain inactive for a period exceeding one year
without submission of written correspondence or an appearance before
the Planning Board, the application shall be considered withdrawn.
Withdrawn applications may be resubmitted as new applications, subject
to all fees and review requirements of this chapter.
(7)
Inactive permit applications. All permit applications must be diligently
pursued by an applicant. Should any application before the Planning
Board remain inactive for a period exceeding one year without submission
of written correspondence or an appearance before the Planning Board,
the application shall be considered withdrawn. Withdrawn applications
may be resubmitted as new applications, subject to all fees and review
requirements of this chapter.
G.
No permit required pursuant to this Chapter 217 shall be issued unless all amounts required to be collected by or due to the Town of Lewisboro as real estate taxes and special assessments on the total area of land encompassed by the application, together with all penalties and interest thereon, have been paid.
[Added 9-20-2004 by L.L. No. 2-2004]
A.
Activity permit application materials. All applications for an activity
permit shall include submission of the following:
(1)
Completed application forms, as provided by the Planning Board, including
affidavit of ownership or authorization from the property owner to
make application and an affidavit from the Town Receiver of Taxes
that all amounts required to be collected by or due to the Town of
Lewisboro as real estate taxes and special assessments on the subject
property, together with all penalties and interest thereon, have been
paid.
[Amended 9-20-2004 by L.L. No. 2-2004]
(2)
Required application fee and initial Planning Board escrow deposit
as required by this chapter.
(3)
An accurate property and land survey, prepared and certified by a
New York State licensed land surveyor.
(4)
Wetland/watercourse delineation map, showing all regulated areas
and the location and numbering of all individual field delineation
flags, prepared and certified by a New York State licensed land surveyor,
the certification to be within one year of the date of application.
The delineation limits of all wetlands and watercourses shall be subject
to field verification and acceptance by the Planning Board and its
authorized agents.
(5)
Wetland/Watercourse delineation report and assessment, prepared by
a qualified wetland delineator as defined by this chapter. Said report
shall include, but not be limited to, the identification, description
and impact assessment of the following:
(a)
Hydrophytic vegetation.
(b)
Wetland/Watercourse hydrology.
(c)
Wetland/Watercourse and buffer area functions and benefits.
(d)
Site soil types, including all hydric inclusions per soil type
and field-observed indicators of hydric soils, and their drainage
characteristics and depth to bedrock.
(e)
Site flora, including upland and hydrophytic vegetation with
their wetland classified status (FAC, FACW, FACU, OBL) and dominant
woody and herbaceous species.
(f)
Site fauna.
(6)
A narrative description of the proposed regulated activity or use,
indicating:
(a)
Location of subject property and area to be affected.
(b)
Environmental impact assessment and description of the wetland,
watercourse and/or buffer area proposed to be disturbed or altered.
(c)
Intended purpose of the proposed activity or use and the applicant's
interest in the subject property and area to be affected.
(d)
Intended purpose and extent of impact or alteration on the affected
wetland, watercourse and/or buffer area.
(e)
Explanation why the proposed regulated activity cannot be located
at another site or location with no or less impact upon wetland, watercourse
and/or buffer area.
(f)
Explanation as to whether or not the proposed activity is dependent
on the affected wetland, watercourse and/or buffer area.
(g)
The alternatives to the proposed activity considered, and why
the proposal to disturb or alter the affected wetland, watercourse
and/or buffer area was chosen instead.
(h)
The mitigation measures proposed to avoid or reduce impact on
the affected wetland, watercourse and/or buffer area.
(7)
Complete plans and estimates for the proposed site improvements,
which shall be certified by an engineer, architect, land surveyor,
or landscape architect licensed in the State of New York, drawn to
scale no less detailed than one inch equals 50 feet, or such scale
as is deemed appropriate by the Planning Board, and showing the following:
(a)
Project location map, showing the subject property as a parcel
centered within adjacent parcels within 500 feet; surrounding zoning,
named streets and water-related resources; and having a scale no less
than one inch equals 400 feet.
(b)
Location of all wetlands, watercourses, and buffer areas as
prepared by a qualified wetland delineator.
(c)
Existing conditions map covering an area as defined by the Planning
Board, including delineation of existing buildings, structures, stone
walls, fences, areas of one-hundred-year floodplain, vegetative cover,
including dominant species and all trees with a diameter of eight
inches or greater.
(d)
Delineation of the soil types on-site.
(e)
Location of the construction area, or area proposed to be disturbed,
and its relation to property lines, roads, buildings, and wetlands
and watercourses within 250 feet.
(f)
Exact locations and specifications for all proposed draining,
fill placement, grading, dredging, and vegetation removal, including
the amount computed from cross sections, and the procedures to be
used.
(g)
Location of any well(s) and depth(s) thereof, and any disposal
system within 50 feet of the area(s) to be disturbed.
(h)
Existing and proposed contours at two-foot intervals in the
proposed disturbed area, and to a distance of 50 feet beyond; and
elevations of the site and adjacent lands within 200 feet of the site
at contour intervals of no greater than five feet.
(i)
Details of any drainage, diversion, or detention or retention
system proposed, both for the conduct of work and after completion
thereof, including locations at any point discharges, artificial inlets,
or other constructed conveyances which would discharge into wetlands,
watercourses or buffer areas, including a stormwater pollution prevention
plan (SWPPP) prepared consistent with the requirements, standards
and performance and design criteria as set forth in the Lewisboro
Stormwater Management and Erosion and Sediment Control Law.[1]
[Amended 12-18-2007 by L.L. No. 6-2007]
(j)
The Planning Board may also require groundwater table elevations,
indicating depth to groundwater and direction of flow and hydrologic
connections with surface water features; and analysis of the wetland/watercourse
hydrologic system, including seasonal water fluctuation, inflow/outflow
calculations, and soil subsurface, geology, and groundwater conditions.
(k)
Erosion and sedimentation control plan, including installation
detail of proposed control measures, directive construction notations,
and a schedule for the installation and maintenance of proposed control
measures consistent with the requirements, standards and performance
and design criteria as set forth in the Lewisboro Stormwater Management
and Erosion and Sediment Control Law.[2]
[Amended 12-18-2007 by L.L. No. 6-2007]
(l)
Where construction of a lake or pond is proposed, details of
the construction of any dams, bulkheads, berms, embankments, outlets
or other bank or bottom stabilizing or water control devices.
(m)
Where creation of a detention basin is proposed, with or without
excavation, details of the construction of any dams, bulkheads, berms,
embankments, outlets, or other bank or bottom stabilizing or water
control devices; and an analysis of the hydrologic system, including
seasonal water fluctuations, inflow/outflow calculations, and subsurface
drainage, soils and bedrock and groundwater conditions.
(n)
Detailed mitigation and/or restoration plans as proposed or
otherwise required by the Planning Board.
(9)
Copies of all applicable county, regional, state, or federal permits
or permit applications that are required for such work.
(10)
Copy of subdivision map as filed in the office of the Westchester
County Clerk, Division of Land Records, or site plan or special permit
site plans if applicable.
B.
The Planning Board may require additional information as needed such
as the study of flood, erosion, or other hazards at the site and the
effect of any protective measures that might be taken to reduce such
hazards; and other information deemed necessary to evaluate the proposed
use in terms of the goals and standards of this chapter.
C.
All information relating to a permit application, including but not
limited to the application itself, additional required materials or
information, notices, records of hearings, written comments and findings
shall be maintained on file in the office of the Planning Board.
D.
Upon written request by an applicant, the Planning Board may waive
or modify the required application materials to address the specific
instances of the application under consideration. Any such waiver
shall not be automatic, but rather shall only be granted if such required
application materials are deemed not applicable to the application
under consideration.
A.
In granting, denying, or conditioning any activity permit, the Planning Board shall evaluate wetland, watercourse and/or buffer area functions and the role of the wetland, watercourse and/or buffer area in the hydrologic and ecological system, and shall determine the impact of the proposed activity upon public health and safety; special concern, rare, threatened and endangered species; water quality and additional wetland, watercourse and/or buffer area functions listed in § 217-1 of this chapter. In this determination, the Planning Board shall take into consideration the following factors:
(1)
The overall impact of the proposed activity, and existing and reasonably anticipated similar activities, upon neighboring land uses and wetland, watercourse and/or buffer area functions as set forth in § 217-1 of this chapter, including but not limited to the:
(a)
Milling of a wetland, watercourse and/or buffer area, and other
modification of natural topographic contours.
(b)
Disturbance or destruction of native flora and fauna.
(c)
Influx of sediments or other materials causing increased water
turbidity and/or substrate aggradations.
(d)
Removal or disturbance of wetland, watercourse or buffer area
soils.
(e)
Reductions or increases in wetland or watercourse water supply.
(f)
Interference with wetland or watercourse water circulation and
flow.
(g)
Changes in the amount or type of wetland or watercourse nutrients.
(h)
Influx or discharge of toxic chemicals and/or heavy metals.
(i)
Physical and chemical changes to the wetland or watercourse
water supply.
(j)
Destruction, reduction and diminution of natural and native
aesthetic values.
(k)
Reduction in public recreational or educational use and access.
(l)
Impact to and alteration or disturbance of buffer areas.
(2)
Any existing wetland, watercourse and/or buffer area impacts and
the cumulative effect of reasonably anticipated future wetland, watercourse
and/or buffer area activities in the wetland, watercourse and/or buffer
area subject to the application.
(3)
The impact of the proposed activity and reasonably anticipated similar
activities upon flood flows, flood storage, storm barriers, and water
quality.
(4)
The potential effect of flooding, erosion, hurricane winds, soil
limitations, and other hazards on the proposed activity, and possible
losses to the applicant and subsequent purchasers of the land.
(5)
The adequacy of water supply and waste disposal for the proposed
use.
(6)
Consistency with federal, state, county, regional and local comprehensive
land use plans and regulations.
(7)
The availability of preferable or environmentally compatible alternative
locations on the subject parcel or, in the case of an activity which
cannot be undertaken on the property without disturbance to wetlands,
watercourses and/or buffer areas, the availability of other reasonable
or practicable locations for the activity.
B.
The Planning Board shall only grant an activity permit for regulated
activities if the Planning Board determines that impacts to the affected
wetland, watercourse and/or buffer area are necessary and unavoidable,
and have been minimized to the maximum extent practicable. For the
purposes of this chapter, wetland, watercourse and/or buffer area
impacts are necessary and unavoidable only if all of the following
criteria are satisfied, as determined by the Planning Board:
(1)
The proposed activity is compatible with the public health and welfare.
(2)
There is no reasonably feasible on-site alternative to the proposed
activity, in the judgment of the Planning Board, including reduction
in density, change in use, revision of road and lot layout, revision
in the location of buildings, structures, driveways and other site
construction and land-altering activities, and/or related site planning
considerations, that could otherwise reasonably accomplish the applicant's
objectives.
(3)
If it is otherwise a practicable alternative, an area not presently
owned by the applicant, which could reasonably be obtained, utilized,
expanded or managed in order to fulfill the basic purpose of the proposed
activity may be considered.
(4)
There is no reasonably feasible alternative to the proposed activity
on another site or site location that is not a wetland, watercourse
or buffer area as regulated herein.
C.
The Planning Board shall deny a requested activity permit if:
(1)
The applicant has not demonstrated that all reasonable alternatives
have been explored; that reasonable alternatives exist which could
avoid or reduce potential losses or impacts to the wetland, watercourse
and/or buffer area; or that any unavoidable losses or impacts to wetlands,
watercourses and/or buffer areas have not been minimized to the maximum
extent practicable.
(2)
The proposed activity threatens public health or safety; results
in fraud; causes nuisances; impairs public rights to the enjoyment
and use of public waters; threatens a special concern, rare, threatened
or endangered plant or animal species; violates pollution control
standards; or violates other federal, state, county, regional or local
regulations.
(3)
Both the affected landowner and the local government have been notified
by a duly filed notice in writing that the state or any agency or
political subdivision of the state is in the process of acquiring
any freshwater wetland by negotiation or condemnation with the following
provisions:
(a)
The written notice must include an indication that the acquisition
process has commenced, such as that an appraisal of the property has
been prepared or is in the process of being prepared.
(b)
If the landowner receives no offer for the property within one
year of the permit denial, this prohibition shall lapse. If its negotiations
with the applicant are broken off, the state or any agency or political
subdivision must, within six months of the end of negotiation, either
issue its findings and determination to acquire the property pursuant
to § 204 of the Eminent Domain Procedure Law or issue a
determination to acquire the property without public hearing pursuant
to § 206 of the Eminent Domain Procedure Law, or this prohibition
shall lapse.
D.
The Planning Board shall give consideration to activities that must
have a shoreline wetland or watercourse location in order to function
and that will have as little impact as possible upon buffer areas
as regulated herein. In general, permission will not be granted for
dredging or ditching solely for the purpose of draining wetlands or
watercourses, controlling mosquitoes, constructing lagoons, constructing
factories or industrial facilities, providing spoil and dump sites,
or building roadways, driveways or buildings and structures that may
be located elsewhere. The regulated activity must, to the extent feasible,
be confined to the portion of a lot outside of a wetland, watercourse
and/or buffer area. All reasonable measures must be taken to minimize
impact upon the wetland, watercourse and buffer area.
E.
Activity permit mitigation plan.
(1)
Upon findings of the Planning Board that impacts to regulated areas
are not unavoidable, and that impacts have been minimized to the maximum
extent practicable, the applicant shall be required to prepare and
implement a mitigation plan acceptable to the Planning Board.
(2)
For the purposes of mitigation, losses of buffer areas will be viewed
as losses of wetlands and watercourses. On-site mitigation shall be
the preferred approach; off-site mitigation shall be permitted only
in cases where an on-site alternative is not possible and the applicant
has control of the off-site property.
(3)
Acceptable mitigation must be provided to minimize impacts to the
maximum extent practicable, striving for a no-net-loss of wetlands,
watercourses and/or buffer areas within the Town. Acceptable mitigation
may be provided in various forms, either singularly or in combination.
(Refer to Appendix B of this chapter for mitigation guidelines.[1])
[1]
Editor's Note: Appendix B is included at the end of this chapter.
(4)
All mitigation plans shall be based on the following order of preference:
(a)
Minimization of impacts and disturbance to wetlands, watercourses
and buffer areas, in that order.
(b)
Preservation of remaining wetlands, watercourses and buffer
areas through the dedication and establishment of perpetual conservation
easements, development restriction areas, or equivalent.
(c)
Rectification by repairing or restoring existing damaged wetlands,
watercourses and/or buffer areas, including enhancement thereto.
(d)
Replacement wetlands, watercourses and buffer areas that recreate
as nearly as possible the original wetlands, watercourses and/or buffer
areas in terms of spatial area, type, functions, hydrologic conditions,
geographic location and setting.
(5)
Any mitigation plan prepared pursuant to this section and accepted
by the Planning Board shall become part of the permit for the application.
(6)
A monitoring and inspection schedule for a specified period of time
as agreed to by the Planning Board shall be established and implemented.
Town-incurred costs for monitoring and inspecting applicant projects
shall be funded by an applicant as required by this chapter.
A.
Any activity permit issued pursuant to this chapter may be issued
with conditions. Such conditions may be attached as the Planning Board
deems necessary or advisable to assure the preservation and protection
of affected wetlands, watercourses and/or buffer areas, 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.
B.
Every activity permit issued pursuant to this chapter shall be in
written form and shall contain, but not be limited to, the following
conditions:
(1)
Work conducted pursuant to an activity permit shall be open to inspection
at any time, including weekends and holidays, by the Planning Board,
Wetland Inspector, or their designated representative(s).
(2)
The activity permit shall expire on a specified date.
(3)
Prior to commencement of any site activity or disturbance, or commencement
of the authorized regulated activity by an applicant, the following
shall be completed:
(a)
Approved activity permit site plans and mitigation plans, as
endorsed by the Planning Board Chair and Secretary pursuant to a duly
authorized written resolution of the Planning Board, shall be filed
with the Planning Board Secretary and Wetland Inspector.
(b)
Subsequent to the endorsement of the final approved activity
permit site plans and mitigation plans, the applicant shall apply
for and obtain an activity implementation permit as issued by the
Wetland Inspector in accordance with the activity permit approval
granted by the Planning Board.
(c)
Projects which also involve or require subdivision or other
land use or zoning approval, including but not limited to an area
or use variance, building permit, zoning permit, special use permit
or site plan approval, shall not be commenced until such other approval
have also been obtained by the applicant.
(d)
The permit holder shall notify the Planning Board and Wetland
Inspector of the date on which the work is to begin, at least five
days in advance of such date.
(e)
The Planning Board's and Wetland Inspector's permit authorizations
shall be prominently displayed at the project site during the undertaking
of the activities authorized by the granted permit.
(4)
Any activity permit, the issuance of which is based on erroneous
or incomplete information, including but not limited to the failure
to completely identify regulated wetland, watercourse and/or buffer
areas, shall be subject to revocation by the Planning Board.
C.
The Planning Board shall set forth in writing in the file it maintains
regarding a permit application all conditions attached to any activity
permit. Project specific 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, watercourse and/or buffer area 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 limitation of vegetation
removal;
(5)
Dedication of easements, development restriction areas or equivalent
to protect wetlands;
(6)
Erosion control measures;
(7)
Setbacks for structures, fill, deposit of spoil, and other activities
from the wetland, watercourse and/or buffer area;
(8)
Modifications in project design to ensure continued water supply
to the wetland or watercourse and circulation of waters; and/or
(9)
Replanting and maintenance of wetland, watercourse and buffer area
vegetation and construction of new wetland, watercourse or buffer
areas to replace damaged or destroyed areas.
D.
Other laws and regulations. Nothing in this chapter shall obviate
the requirements for an applicant to obtain any other consents, permits,
approvals, or licenses required by law or regulation by the Town of
Lewisboro or other regulatory agency, including any federal, state,
county, regional or local agencies. Obtaining such consents, permits,
approvals, or licenses shall be the sole responsibility of an applicant.
E.
Performance bond.
(1)
The Planning Board may require that, prior to commencement of any
public work improvements under any activity permit issued pursuant
to this chapter, the applicant or permittee shall post a bond to be
approved and deemed acceptable by the Town Board in an amount and
with a surety and conditions sufficient to secure satisfactory completion
of the public work improvements and compliance with the conditions
and limitations set forth in the activity permit.
(2)
The particular amount and the conditions of the bond shall be consistent
with the purposes of this chapter. The bond shall remain in effect
until the Planning Board or its designated agent certifies that the
work has been completed in compliance with the terms and conditions
of the activity permit and the bond is recommended for release by
the Planning Board and thereafter released by the Town Board, or a
substitute bond is provided.
(3)
In the event of a breach of any condition of any such bond, the Town
Board may institute an action in the courts upon such bond, and prosecute
the same to judgment and execution. A substitute form of guaranty
may be provided as approved by the Town Board.
F.
Activity permit expiration.
(1)
Approved activity permit site plans, signed by the applicant as evidence
of acceptance of the conditions of an activity permit approval, shall
be submitted for endorsement by the Planning Board Chair and Secretary
within 180 days of the date of the Planning Board's resolution granting
the related activity permit approval. Failure to submit activity permit
site plans as required by the Planning Board's resolution granting
permit approval, within the specified time frame, shall result in
expiration of the related activity permit, thereby making it null
and void.
(2)
Upon written request by the applicant, the Planning Board may extend
the time, not to exceed two additional periods of 90 days each, in
which the conditions of the granted activity permit approval and/or
final activity permit site plans must be completed or endorsed, as
the case may be, if in the opinion of the Planning Board such extension
is warranted by the particular circumstances of the request.
(3)
No changes, additions, erasures, modifications or revisions shall
be made to the final activity permit site plans following endorsement
by the Planning Board Chair and Secretary. Any such changes detected
after endorsement of the activity permit site plans as final shall
result in the immediate expiration of the related activity permit,
thereby making it null and void.
(4)
An activity permit approval shall expire, without further written
notification, two years after the date of the Planning Board resolution
granting such activity permit approval, unless all work and conditions
of approval have been certified complete by the Wetland Inspector
pursuant to the conditions of the activity permit approval and the
provisions of this chapter.
(5)
The Planning Board may extend the expiration date of an activity
permit approval upon a showing of reasonable cause by the applicant
or permittee, and/or upon determination by the Planning Board that
the public interest and environment will be best served by not interrupting
the activity or use, if commenced. Any request for extension shall
be in writing and submitted a minimum of 30 days prior to the date
of expiration of the related activity permit approval, and shall clearly
describe the following:
(a)
The status of the authorized activity or use which is the subject
of the expiring activity permit approval, including a description
of the extent of work completed at the time of the extension request
and the proposed schedule for completing the remaining authorized
work.
(b)
The reasons for the requested extension.
(c)
The reasons why the authorized activity or use was not initiated
or completed within the time frame allowed.
(d)
Any changes in the facts or circumstances involved with or affecting
the regulated resource area affected by the authorized activity or
use, or the property for which the expiring activity permit approval
was issued.
(6)
The request for extension of an activity permit approval shall follow
the same form and procedure as an original application, except that
the Planning Board may waive the requirement for a public hearing
and notice, if in its judgment, the original intent and substance
of the permit is not altered by the requested renewal, or if the applicant
has not failed to abide by the terms of the original permit in any
way.
(7)
Upon approval of an extension, the Planning Board may attach additional
conditions or limitations as deemed appropriate or necessary given
any changes in facts or circumstances, and the Planning Board shall
prescribe a new schedule of implementation and expiration.
G.
Suspension or revocation of permits.
(1)
Following a hearing conducted by the Planning Board in accordance with the procedures for violation hearings as set forth in § 217-12 of this chapter, the Planning Board may modify, suspend or revoke a permit and direct the Wetland Inspector to issue a stop-work order and/or notice of violation, if it finds that the applicant or permittee has not complied with any or all of the 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 approved application; or the permit was issued in whole or in part upon information which subsequently proves to be false, deceptive, incomplete or inaccurate.
(2)
The Planning Board shall set forth in writing its findings and reasons
for revoking or suspending a permit pursuant to this section.
H.
Monitoring and inspection.
(1)
Monitoring required. The Planning Board shall monitor, or shall cause
to have monitored, approved activity permits according to the specifications
set forth in the permit to determine whether the elements of the permit
have been met. The Planning Board may require that the implementation
or construction phase of an authorized activity permit be monitored
by the Wetland Inspector and/or a Town-appointed environmental monitor,
such as an academic institution, independent research group or other
qualified professionals, at the expense of the applicant.
(2)
Requirements of monitoring. The requirements for monitoring shall
be specified in the permit and shall include, but not be limited to:
(a)
The time period during which compliance monitoring shall occur.
(b)
Field measurements to verify the size and location of the impacted
wetland, watercourse and/or buffer area and the restored/replacement
wetland, watercourse and/or buffer area.
(c)
Implementation scheduling of all authorized activities and any
mitigation restoration/replacement work.
(d)
Field verification of compliance with the vegetative, hydrologic,
and soils criteria, and all other requirements, as specified in the
approved mitigation plans and granted activity permit.
(3)
Inspection of ongoing activity permit activities. The Wetland Inspector
or other duly authorized representative shall inspect all permit activities
during the implementation or construction phase of an approved activity
permit and mitigation plan to assure that all required wetland, watercourse
and buffer area protections and mitigation measures are properly installed
and maintained, and authorized activities are being satisfactorily
completed according to required schedules of implementation. Failure
to conduct such inspections shall not in any way relieve the applicant
of its activity permit conditions or responsibilities.
(4)
Inspection upon completion of permit activities. The applicant shall
request a final inspection by the Wetland Inspector of all completed
work, or as otherwise may be required by the activity permit approval.
Incomplete work or unsatisfactory site conditions shall be remediated
immediately upon notice by the Wetland Inspector or other authorized
representative. Failure to take such action may result in the suspension
or revocation of an authorized activity permit, or in the issuance
of a notice of violation.
(5)
As-built plan. The Planning Board or Wetland Inspector may require
an applicant to submit an as-built plan of completed work, which plan
shall be prepared and certified complete by a New York State licensed
surveyor, landscape architect and/or professional engineer, as appropriate.
(6)
Certificate of compliance.
(a)
Upon the completion of all authorized work conducted pursuant
to an activity permit (and an activity implementation permit), the
applicant shall request that the Wetland Inspector make a final inspection
thereof to determine compliance.
(b)
If the Wetland Inspector finds all work to be complete in accordance
with the issued permits and the provisions of this chapter, then the
Wetland Inspector shall issue a certificate of compliance relating
to such permit.
(c)
A certificate of compliance shall be deemed to authorize the
initial and continued activity and use affecting a regulated area
and resource so long as continued full conformity and compliance are
maintained with the terms and conditions of an issued activity permit
and the provisions of this chapter.
A.
All permit application and review fees shall be in an amount set
forth in the fee schedule established by resolution of the Town Board.
B.
Fees charged by consultant professionals to the Planning Board shall be in accordance with fees usually charged for such services in Westchester County and pursuant to a contractual agreement between the Town and such professional. All such charges shall be paid by the Town upon receipt of a Town voucher. The applicant shall reimburse the Town for the cost of such professional review services upon submission of a copy of the voucher or, at the discretion of the Planning Board, in accordance with Subsections C and D of this section. Such professional review fee reimbursement costs shall bear a reasonable relationship to other applications of that type. The payment of such fees by the applicant shall be required in addition to any and all other fees required by this or any other section of this chapter, or any other chapter of this code.
C.
Permit review escrow account procedures.
(1)
At the time of submission of any application for an activity permit
approval, and subsequent to the date of receipt but prior to the review
by the Planning Board, the Planning Board may require the establishment
of an applicant-funded permit review escrow account, from which withdrawals
shall be made to reimburse the Town for the cost of professional review
services.
(2)
The applicant shall then provide initial funds to the Town in two
separate installments for deposit into such account in an amount to
be determined by the Planning Board based on its evaluation of the
nature and complexity of the application, as follows:
(a)
To cover the costs of the initial review of the application,
an initial escrow deposit shall be made in accordance with the initial
escrow account deposit schedule adopted by the Planning Board, as
amended from time to time.
(b)
After such initial review, the applicant shall provide additional
funds to the Town for deposit into the escrow account in an amount
to be established by the Planning Board as the full escrow deposit
based upon estimates of the total anticipated review costs provided
by the consultants to the Planning Board. Said estimates are for the
convenience of the applicant and shall not be binding upon the Planning
Board. Upon request, the applicant shall be provided with copies of
any voucher for such services as they are submitted to the Town.
(3)
When the balance in such escrow account is reduced to 1/2 of the
full escrow deposit amount, the applicant shall deposit additional
funds into such account to bring its balance up to 100% of the amount
of the full escrow deposit, or to some lesser amount as deemed acceptable
by the Planning Board to complete the permit review of the application.
(4)
If such escrow account is not replenished within 20 days after the
applicant is notified in writing of the requirement for such additional
deposit, the Planning Board may suspend its review of the application
until such time as the escrow account is replenished accordingly.
(5)
A building permit, or certificate of occupancy or use or certificate
of compliance shall not be issued and no approval of plats, subdivisions,
site plans, special permits, variances or other permits or approvals
as issued by the administrative officials and municipal boards of
the Town of Lewisboro shall be granted unless all professional review
fees charged in connection with the applicant's project have been
reimbursed to the Town.
(6)
After all pertinent charges have been paid, the Town shall refund
to the applicant any funds remaining on deposit.
D.
SEQRA escrow account procedures.
(1)
In the event that a positive declaration is determined in accordance with the New York State Environmental Quality Review Act (SEQRA) regarding the subject application, reimbursement procedures utilizing the basic permit review escrow account established in accordance with Subsection C may be suspended until after completion of the SEQR process.
(2)
After all pertinent charges have been paid, the Town may refund to
the applicant any funds remaining on deposit in the basic permit review
escrow account minus $100 so as to maintain the basic permit review
escrow account with the Town.
(3)
Reimbursements of the costs of professional fees incurred subsequent
to the determination of a positive declaration and necessary for the
preparation or review of an environmental impact statement (EIS) shall
be made in accordance with the procedures established under SEQR and
the Lewisboro Environmental Quality Review Law (LEQR),[1] as may be amended from time to time.
(4)
Upon completion of the SEQR process or continued review of the application
which is not directly related to the preparation or review of an EIS,
the applicant shall replenish the basic permit review escrow account
with a deposit in an amount deemed necessary by the Planning Board,
but in no case in an amount greater than the full escrow deposit amount
originally established by the Planning Board.
(5)
All subsequent deposits, reimbursements and refunds relating to the
review of the activity permit application shall be made in accordance
with the standards and procedures above.
E.
Monitoring and inspection fees.
(1)
Required monitoring and inspection fees shall be determined by the
Planning Board upon approval of an activity permit, based on the complexity
and substance of the authorized regulated activity.
(2)
To perform specific monitoring duties as required by this chapter,
the Town may contract with a professional consultant to provide independent
environmental monitoring services. To offset the costs of hiring an
independent environmental monitor for this purpose, the Planning Board
may require an applicant to establish a monitoring escrow account
with the Town.
A.
General provisions. No board, agency, officer or employee of the
Town shall issue, grant or approve any permit, license, certificate
or other authorization for any construction, reconstruction, alteration,
enlargement or moving of any building or structure, or for any use
of land or building that would not be in full compliance with the
provisions of this chapter. Any such permit, license, certificate
or other authorization issued, granted or approved in violation of
the provisions of chapter shall be null and void and of no effect
without the necessity of any proceeding or revocation or nullification
thereof.
B.
Enforcement agents. This chapter shall be enforced by the Wetland
Inspector and such deputy inspectors as may be appointed by the Town
Board.
C.
Issuance of stop-work orders.
(1)
Whenever the Wetland Inspector has reasonable grounds to believe
that a person or applicant has caused or committed a violation of
any provision as set forth in this chapter; or a permittee has not
complied with any or all of the terms of a granted permit, or has
exceeded the authority granted by a permit; or has failed to undertake
a project in the manner set forth in an approved permit application,
the Wetland Inspector may issue a stop-work order in writing to same,
thereby notifying the person or persons responsible to stop and suspend
all work.
(2)
A stop-work order shall be served by the Wetland Inspector upon the
alleged violator by certified mail, return receipt requested, or by
personal service. "Personal service" shall be defined as set forth
in the New York State Civil Practice Law and Rules.
(3)
Such person or persons shall forthwith stop and suspend all such
work until such time that the stop-work order has been rescinded by
the Wetland Inspector. The remedy of a stop-work order shall be in
accordance with the requirements of the Wetland Inspector, and may
result in the issuance of a notice of violation requiring adjudication
by the Planning Board.
D.
Issuance of notice of violation. The Town of Lewisboro is specifically
empowered to seek injunctive relief restraining any violation or threatened
violation of any provisions of this chapter and/or compel the restoration
of the affected wetland, watercourse and/or buffer area to its condition
prior to the violation of the provisions of this chapter. The Wetland
Inspector is empowered to issue a notice of violation and the Planning
Board is empowered to adjudicate any such violation as issued by the
Wetland Inspector.
E.
Penalties for violations; administrative and criminal sanctions.
(1)
Any single violation shall be subject to either administrative or
criminal sanctions, but not both.
(2)
Administrative sanctions.
(a)
Any person or property owner who undertakes any regulated activity
within a wetland, watercourse and/or buffer area without a permit
issued hereunder; or who violates, disobeys or disregards any provision
of this chapter, including any provision of any permit issued pursuant
to this chapter, shall be liable to the Town of Lewisboro for a civil
penalty of not more than $7,500 for every such violation. Any civil
penalty in excess of $5,000 shall be based upon a finding of willful
violation by a majority of the Board plus one.
(b)
Such civil penalty may be assessed by the Planning Board upon
an admission of liability or upon a determination by the Planning
Board, after notice and hearing, that a violation of this chapter
has occurred. Each consecutive day of the violation will be considered
a separate offense, subject to additional penalties.
(c)
Such civil penalty may be recovered in an action brought by
the Town of Lewisboro at the request and in the name of the Planning
Board or Town Board in a court of competent jurisdiction.
(d)
No permit for a regulated activity or certificate of compliance,
or certificate of occupancy, or building permit shall be issued until
such civil penalty is paid.
(e)
Such civil penalty may be released or compromised, and any action
commenced to recover the same may be settled and discontinued by the
Planning Board or Town Board.
(f)
The Planning Board shall have the power, following a violation
hearing, to direct the violator to restore the affected wetland, watercourse
and/or buffer area to its condition prior to the violation, insofar
as that is possible, within a reasonable time and under the supervision
of the Planning Board or its designate.
(g)
Any such order of the Planning Board shall be enforceable in
an action brought in any court of competent jurisdiction.
(h)
Any civil penalty or order issued by the Planning Board pursuant
to this subdivision shall be reviewable in a proceeding pursuant to
Article 78 of the State Civil Practice Law and Rules.
(3)
Criminal sanctions. Any person who violates an order, permit or rule
or regulation of the Planning Board's and/or Wetland Inspector's regulation
of wetlands, watercourses and/or buffer areas pursuant to this chapter
shall, for the first offense, be guilty of a violation punishable
by a fine of not less than $500 and not more than $1,000; for a second
and each subsequent offense, he or she shall be guilty of a misdemeanor
punishable by a fine of not less than $1,000 nor more than $2,000
or a term of imprisonment of not less than 15 days or more than six
months, or both. In addition to these punishments, any offender may
be ordered by the court to restore the affected wetland, watercourse
and/or buffer 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 under
the supervision of the Planning Board and/or Wetland Inspector. Each
offense shall be a separate and distinct offense, and in the case
of continuing offense, each day's continuance thereof shall be deemed
a separate and distinct offense.
A.
Notice of violation and hearing.
(1)
A notice of violation and hearing, as issued by the Wetland Inspector,
shall include notification of the following:
(a)
The time and place of the violation hearing.
(b)
A list of all alleged violations complained of, with specific
reference to the provisions and sections of the law, rule or regulation
involved, and a summary of the alleged facts supporting each alleged
violation.
(c)
The alleged violator's right to present evidence.
(d)
The alleged violator's right to examine and cross-examine witnesses.
(e)
The alleged violator's right to be represented by counsel.
(f)
Notice that the alleged violator's failure to appear shall constitute
a default by the alleged violator, and that the violation hearing
may proceed in said violator's absence and a determination made solely
upon evidence submitted or accepted into the record by the Planning
Board.
(2)
A notice of violation and hearing shall be served by the Planning
Board or Wetland Inspector upon the alleged violator by certified
mail, return receipt requested, or by personal service. "Personal
service" shall be defined as set forth in the New York State Civil
Practice Law and Rules.
B.
Violation hearings.
(1)
Upon the issuance of a notice of violation and hearing, the Planning
Board shall cause to be held a violation hearing, unless a person,
entity, or property owner charged with such violation admits liability
by returning the notice of violation and hearing with a signed admission
of liability.
(2)
The person, entity or property owner charged with an alleged violation
may waive its right to such violation hearing by signing an admission
of liability on the notice of violation and hearing. Once an admission
of liability is submitted to the Planning Board, the Planning Board
shall assess a civil penalty and require a restoration plan and/or
mitigation plan, and so advise the person, entity or property owner
in violation by certified mail, return receipt requested.
(3)
The Planning Board shall not be bound by the strict rules of evidence
in the conduct of a violation hearing, but its findings of fact shall
be founded upon a fair preponderance of the evidence presented at
the violation hearing. The Planning Board shall admit and consider
evidence of mitigation offered by the alleged violator.
(4)
To aid in the administration of this chapter, the Planning Board
may issue subpoenas requiring the attendance and giving of testimony
by witnesses and the production of books, photographs, assessment
reports, papers and other evidence for any violation hearing or proceeding
conducted under this section. Service of such subpoena, enforcement
of obedience thereto, and punishment for disobedience thereof, shall
be had as and in the manner provided by the New York State Civil Practice
Law and Rules relating to the enforcement of any subpoena issued by
a board or committee. It shall be the responsibility of the party
requesting the issuance of a subpoena to effect service thereof.
(5)
Upon the return date of a violation hearing, the Planning Board shall
note the appearances of the persons attending the violation hearing.
Witnesses shall be sworn and testimony shall be recorded either by
a certified stenographer or by use of an electronic recording device.
(6)
All violation hearings shall be open to the public. Testimony shall
be transcribed upon the request of any interested party. The party
requesting the transcript shall pay the costs and expenses in connection
therewith and shall provide a copy of said transcript to the Planning
Board in a timely manner.
(7)
The Planning Board may add a party to the proceeding upon due and
adequate notice to both the party to be added and the parties named
in the proceedings.
(8)
The Planning Board may grant an adjournment of the violation hearing
upon request of any party to the proceeding, provided that an adjournment
shall not be for an indefinite period of time, but shall be set down
for a date certain.
(a)
If an adjournment is requested in advance of the violation hearing
date, such request shall be presented to the Planning Board in writing,
and shall specify the reason for such request.
(b)
In considering an application for adjournment of a violation
hearing, the Planning Board shall consider whether the purpose of
the violation hearing will be affected or defeated by the granting
of such adjournment.
(9)
Upon the conclusion of the violation hearing and after consideration
of credible evidence, the Planning Board shall issue a written decision.
If a violation is found, the Planning Board shall issue a decision
which shall set out the civil penalties and requirements for a restoration
and/or mitigation plan. The Planning Board shall take into consideration
the seriousness of the violation, the evidence of mitigation offered
by the violator and the cost of any mitigation and/or restoration
measures imposed in setting the civil penalty.
(10)
The Planning Board's written decision shall containing a summary
of the evidence and findings of fact and conclusions of law. Said
written decision shall be filed with the Town Clerk and the alleged
violator shall be advised of any decision of the Planning Board by
certified mail, return receipt requested.
In order to carry out the purposes and provisions of this chapter,
and in addition to the powers specified elsewhere in this chapter,
the Planning Board shall have the following powers:
A.
To adopt, amend, and repeal, after public hearing (except in the
case of rules and regulations that relate to the organization or internal
management of the Planning Board) such rules and regulations consistent
with this chapter as it deems necessary to administer this chapter,
and to do any and all things necessary or convenient to carry out
the policy and intent of this chapter.
B.
To consult or contract with expert persons or agencies in reviewing
a permit application or violation action.
C.
To hold hearings and subpoena witnesses in the exercise of its powers,
functions, and duties provided for by this chapter.
D.
To adopt procedures and policies that relate solely to the organization
or internal management of the Planning Board that are necessary or
convenient to carry out the policy and intent of this chapter.
Any determination, decision or order of the Planning Board may
be judicially reviewed pursuant to Article 78 of the Civil Practice
Law and Rules of the State of New York, provided that such proceeding
must be initiated within 30 days after the filing of the Planning
Board's decision in the office of the Town Clerk.
If any clause, sentence, paragraph, section or part of this
chapter, or the application thereof to any person or circumstances,
shall be adjudged by any court of competent jurisdiction to be invalid,
such order or judgment shall be confined in its operation to the controversy
in which it was rendered and shall not affect or invalidate the application
of the remainder of any part thereof to any other person or circumstances;
and to this end, the provisions of each section of this chapter are
hereby declared to be severable.
A.
This chapter may be amended from time to time by the Town Board in
accordance with the procedures and requirements of the general statutes
and as new information concerning soils, hydrology, flooding or botanical
species peculiar to wetlands, watercourses and associated buffer areas
becomes available.
B.
Every amendment of this chapter entertained by the Town Board shall
be referred to the Planning Board and Conservation Advisory Council
for written reports before a required public hearing on the proposed
amendment is held by the Town Board. A minimum of 60 days to respond
to the referral shall be provided.