[HISTORY: Adopted by the Town Board of the Town of Highlands 6-28-1984 by L.L. No. 1-1984. Amendments noted where applicable.]
GENERAL REFERENCES
Excavations — See Ch. 105.
Flood damage prevention — See Ch. 114.
It is the purpose of this chapter to protect public health, safety and welfare in the Town of Highlands by regulating site preparation and construction activities, including excavation, filling, grading, stripping and construction of drainage facilities so as to prevent problems related to erosion, sediment or drainage. In relation to this purpose this chapter is intended to:
A. 
Preserve the quality of the natural environment from such adverse effects of site preparation and construction as:
(1) 
Pollution of lakes, ponds and watercourses from silt or other materials;
(2) 
Unnecessary destruction of trees and other vegetation;
(3) 
Excessive exposure of soil to erosion;
(4) 
Unnecessary modification of natural topography or unique geological features; and
(5) 
Failure to restore sites to an attractive natural condition.
B. 
Protect people and properties from such adverse effects of site preparation and construction as:
(1) 
Increased runoff, erosion and sediment;
(2) 
Increased threat to life and property from flooding or storm waters;
(3) 
Increased slope instability and hazards from land slides and slumping; and
(4) 
Modifications of the groundwater regime that adversely affect wells and surface water levels.
C. 
Protect the Town and other governmental bodies from having to undertake, at public expense, programs of repairing roads and other public facilities, of providing flood protection facilities and of compensating private property owners for the destruction of properties arising from the adverse effects of site preparation and construction; and
D. 
Ensure that site preparation and construction are consistent with the Comprehensive Plan of the Town of Highlands.
In accordance with Article 9 of the Town Law of the State of New York, the Town of Highlands has the authority to enact local laws for the purpose of promoting the health, safety or general welfare of the Town of Highlands, including the protection and preservation of the property of its inhabitants. By the same authority the Town of Highlands may include in any such chapter provision for the appointment of any municipal officers or employees to effectuate and administer such ordinance.
In order that site preparation and construction activities may be in conformance with the provisions of this chapter, this chapter is hereby adopted and shall be known and may be cited as the "Erosion, Sediment and Drainage Control Local Law of the Town of Highlands."
Upon the adoption of this chapter, all site preparation and construction activities requiring a permit under this chapter shall be in conformance with the provisions set forth herein.
Where this chapter imposes greater restrictions than are imposed by the provision of any law, ordinance, regulation or private agreement, this chapter shall control. Where greater restrictions are imposed by law, ordinance, regulation or private agreement than are imposed by this chapter, such greater restrictions shall control.
As used in this chapter, the following terms shall have the meanings indicated:
AGRICULTURAL OPERATIONS
All activities directly related to the growing or raising of crops or livestock for the sale of agricultural produce, including horticultural and fruit operations.
AUTHORIZED OFFICIAL
The person designated by the Town Board to administer and maintain the provisions of this chapter.
DBH or DIAMETER BREAST HEIGHT
The diameter of a tree measured at a point 4 1/2 feet above the ground.
[Added 5-22-2006 by L.L. No. 2-2006]
DRAINAGE
The gravitational movement of water or other liquids by surface runoff or subsurface flow.
EROSION
The wearing away of the land surface by action of wind, water, gravity or other natural forces.
EXCAVATION
Any activity which removes or significantly disturbs rock, gravel, sand, soil or other natural deposits.
FILLING
Any activity which deposits natural or artificial material so as to modify the surface or subsurface conditions of land, lakes, ponds or watercourses.
GRADING
The alteration of the surface or subsurface conditions of land, lakes, ponds or watercourses by excavation or filling.
MULCHING
The application of a layer of plant residue or other material for the purpose of effectively controlling erosion.
SEDIMENT
Solid material, both mineral and organic, that is in suspension, is being transported, has been deposited or has been removed from its site of origin by erosion.
SITE PREPARATION
The activities of stripping, excavation, filling, grading or construction of drainage facilities, no matter what the purpose of these activities.
SOIL
All unconsolidated mineral or nonliving organic material of whatever origin which overlies bedrock.
STRIPPING
Any activity which removes or significantly disturbs trees, brush, grass or any other kind of vegetation.
TOPSOIL
The natural surface layer of soil, usually darker than subsurface layers, to a depth of at least six inches within an undisturbed area of soils.
TREE
A living woody plant with an erect perennial trunk four inches or more DBH with a definitely formed crown of foliage and total height of at least 13 feet from the ground.
[Added 5-22-2006 by L.L. No. 2-2006]
WATERCOURSE
Any natural or artificial stream, river, creek, ditch, channel, canal, conduit, drainageway, gully, ravine or wash in which water flows in a definite direction of course, either continuously or intermittently and which has a definite channel, bed and banks, and any area adjacent thereto subject to inundation by reason of overflow, flood or stormwater.
WATERLANDS
Areas of aquatic or semiaquatic vegetation or any areas which have been mapped as such by the Town Planning Board, the County Soil and Water Conservation District or the New York State Department of Environmental Conservation under the Freshwater Wetlands Act.
[Amended 5-22-2006 by L.L. No. 2-2006]
A. 
None of the following activities shall be commenced until a permit has been issued from the Planning Board under the provisions of this chapter:
(1) 
Site preparation in the subdivision of land into two or more parcels.
(2) 
Site preparation within waterlands.
(3) 
Site preparation on slopes which exceed 1 1/2 feet of vertical rise to 10 feet of horizontal distance.
(4) 
Site preparation within the one-hundred-year floodplain of any watercourse.
(5) 
Excavation which affects more than 200 cubic yards of material within any parcel or any contiguous area.
(6) 
Stripping which affects more than 20,000 square feet of ground surface within any parcel or any contiguous area.
(7) 
Grading which affects more than 20,000 square feet of ground surface within any parcel or any contiguous area.
(8) 
Filling which exceeds a total of 100 cubic yards of material within any parcel or any contiguous area.
(9) 
Site preparation pursuant to a special exception permit issued by the Town Planning Board or the Town Board.
(10) 
Site preparation affecting or contiguous to the shoreline of the Hudson River.
(11) 
On all properties, the removal or destruction of more than three trees 10 inches DBH or over during any period of 12 consecutive months or any one tree 30 DBH inches or over.
B. 
The following activities are exempted from permit regulations:
(1) 
Activities not meeting the criteria in Subsection A;
(2) 
Agricultural operations;
(3) 
Excavations for the basements and footings of single-family houses and for septic tank systems, wells and swimming pools attendant to single-family homes;
(4) 
Household gardening and activities related to the maintenance of landscape features on existing developed lots, excepting such activities as are required to obtain permits under Subsection A(5) through (8);
(5) 
Governmental activities, but only to the extent that such activities are exempted from the provisions of this chapter by law;
(6) 
Home occupations requiring a special exception permit under Chapter 210, Zoning; and
(7) 
The removal of trees:
(a) 
Within 40 linear feet of the exterior walls of an existing single-family or two-family house on the same lot; or
(b) 
Which pose an imminent hazard to life or property, provided a waiver from the permit requirements hereunder is first obtained from the authorized official; or
(c) 
On a lot of one acre or less, substantially developed with improvements and having a single-family or two-family house situated thereon.
A. 
No site preparation requiring a permit under § 101-7 of this chapter shall be commenced until six copies of a permit application have been filed with the Town Clerk and an application has been approved and a permit has been granted pursuant to the provisions of this chapter.
B. 
Upon filing an application for a permit, the applicant(s) shall pay to the Town a fee as set by resolution of the Town Board from time to time.
[Amended 3-10-1998 by L.L. No. 1-1998]
C. 
All such applications shall be referred to the Town Planning Board which shall have the authority to grant or deny all permits pursuant to this chapter.
D. 
At the option of the Town Planning Board, copies of the permit application shall be submitted to the Town Engineer and/or the County Soil and Water Conservation District, which shall submit recommendations on the application to the Town Planning Board within 30 days of the date of filing. All charges made by the Town Engineer for the review of the application and for inspection to ensure compliance with the permit shall be paid by the applicant as an additional application fee.
E. 
The Town Planning Board may, in its discretion, conduct public hearings on permit applications which hearings shall be fixed at a reasonable time and shall be given notice by a newspaper of general circulation in the Town at least 10 days prior to the date thereof.
F. 
The Town Planning Board shall grant or deny all permits within 60 days of the date of filing of the application thereof, unless the applicant and the Town Planning Board consent to a time extension.
G. 
Prior to granting a permit, the Town Planning Board shall determine that the request is in harmony with the purpose and standards set forth in this chapter.
H. 
In granting a permit, the Town Planning Board shall fix a reasonable time limit for the termination of the permit and may attach any conditions which it deems necessary to assure compliance with the provisions of this chapter.
I. 
It shall be the responsibility of the authorized official to inspect sites as frequently as necessary to assure compliance with the terms of approved permits and the provisions of this chapter and to submit written notification of any violations of these terms or provisions to the Chairman of the Town Planning Board.
J. 
If at any time during the effective period of a permit or upon its expiration the terms of the permit are violated, the Town Planning Board may revoke the permit and may require that the performance guaranty be forfeited to the Town. If the applicant shall be unable to complete the project or any phase thereof within the specified time, he shall, 30 days prior to the specified date of completion, present, in writing, a request for an extension of time, setting forth therein the reasons for the request. If in the discretion of the Town Planning Board such an extension is warranted, the Board may grant additional time for the completion of the work.
Maps and plans accompanying the application shall be prepared by a licensed architect or engineer or by any other person approved by the Town Planning Board. The Town Planning Board may require that additional copies of the application be filed with the Town Clerk and may modify the requirements concerning materials to accompany the application by waiving or adding such requirements as it deems appropriate to the nature and scope of the proposed activities. Except as modified by this section, each application shall contain the following material:
A. 
Existing features map(s), at a scale no smaller than one inch equals 200 feet, indicating:
(1) 
The boundaries of all parcels on which site preparation activities are proposed to be undertaken;
(2) 
All structures and roads within a distance of 500 feet of the parcels of which site preparation activities are proposed to be undertaken, the structures identified by their uses and the roads identified by their surface material and width of surface;
(3) 
All watercourses within a distance of 500 feet of the parcels on which site preparation activities are proposed to be undertaken;
(4) 
Existing topography at contour intervals of no greater than five feet within a distance of 500 feet of the parcels on which site preparation activities are proposed to be undertaken;
(5) 
All sewer, water, gas and electric lines and all other utilities within the parcels on which site preparation activities are proposed to be undertaken;
(6) 
Major wooded areas and tree clusters within a distance of 500 feet of the parcels on which site preparation activities are proposed to be undertaken;
(7) 
All vegetation areas on the site proposed for site preparation activities, including areas of grass, areas of brush and wooded areas and tree clusters;
(8) 
The depth to bedrock on the site proposed for site preparation activities, if determined during site evaluation; and
(9) 
The depth to permanent groundwater aquifers on the site proposed for site preparation activities, if such depth is determined during site evaluation.
B. 
Operations map(s) at a scale no smaller than one inch equals 200 feet, which present a complete erosion and sediment control plan and which indicate:
(1) 
All excavation, filling and grading proposed to be undertaken, identified as to the depth, volume and nature of the materials involved;
(2) 
All stripping, identified as to the nature of vegetation affected;
(3) 
All areas where topsoil is removed and stockpiled and where topsoil is ultimately placed, identified as to the depth of topsoil in each such area;
(4) 
All temporary and permanent vegetation to be placed on the site, identified as to planting type, size and extent;
(5) 
All temporary and permanent drainage, erosion and sediment control facilities, including such facilities as ponds and sediment basins identified as to the type of facility, the materials from which it is constructed, its dimensions and its capacity in gallons;
(6) 
The anticipated pattern of surface drainage during periods of peak runoff, upon completion of site preparation and construction activates, identified as to rate and direction of flow at all major points within the drainage systems;
(7) 
The location of all roads, driveway, sidewalks, structures, utilities and other improvements; and
(8) 
The final contours of the site in intervals of no greater than two feet.
C. 
A time schedule which is keyed to the operations map(s), indicating:
(1) 
When major phases of the proposed project are to be initiated and completed;
(2) 
When major site preparation activities are to be initiated and completed;
(3) 
When the installation of temporary and permanent vegetation and drainage, erosion and sediment control facilities is to be completed; and
(4) 
The anticipated duration (in days) of exposure of all major areas of site preparation before the installation of erosion and sediment control measures.
D. 
An estimate of the costs of providing temporary and permanent vegetation and drainage, erosion and sediment control facilities.
E. 
Notwithstanding the foregoing, an application to remove 12 or fewer trees from a developed lot containing an existing single-family or two-family house without other site preparation activities shall only be required to be accompanied by a sketch of the property showing the approximate location of the trees, existing building footprints and property lines and photos of the premises and trees proposed to be removed taken from at least three angles and shall not be required to be accompanied by the materials identified in Subsections A, B, C and D above, unless the Town Planning Board shall deem additional materials appropriate to the nature and scope of the proposed activities.
[Added 5-22-2006 by L.L. No. 2-2006]
F. 
The Town Planning Board may, if it determines it appropriate to the nature and scope of the proposed activities, require the submission of a tree protection plan prepared by an arborist who has demonstrated knowledge and competency through obtaining the current International Society of Arboriculture arborist certification or who is a member of the American Society of Consulting Arborists or by a licensed landscape architect.
[Added 5-22-2006 by L.L. No. 2-2006]
In granting a permit under this chapter, the standards and considerations taken into account include but shall not be limited to the following:
A. 
Excavation, filling, grading and stripping shall be permitted to be undertaken only in such locations and in such a manner as to minimize the potential of erosion and sediment and the threat to the health, safety and welfare of neighboring property owners and the general public.
B. 
Site preparation and construction shall be fitted to the vegetation, topography and other natural features of the site and shall preserve as many of these features as feasible.
C. 
The control of erosion and sediment shall be a continuous process undertaken as necessary prior to, during and after site preparation and construction.
D. 
The smallest practical area of land shall be exposed by site preparation at any given time.
E. 
The exposure of areas by site preparation shall be kept to the shortest practical period of time prior to the construction of structures or improvements or the restoration of the exposed areas to an attractive natural condition.
F. 
Mulching or temporary vegetation suitable to the site shall be used where necessary to protect areas exposed by site preparation and permanent vegetation which is well adapted to the site shall be installed as soon as practical.
G. 
Where slopes are to be revegetated in areas exposed by site preparation, the slopes shall not be of such steepness that vegetation cannot be readily established or that problems of erosion or sediment may result.
H. 
Site preparation and construction shall not adversely affect the free flow of water by encroaching on, blocking or restricting watercourses.
I. 
All fill material shall be of a composition suitable for the ultimate use of the fill, free of rubbish and carefully restricted in its contents of brush, stumps, tree debris, rocks, frozen material and soft or easily compressible material.
J. 
Fill material shall be compacted sufficiently to prevent problems of erosion and where the material is to support structures, it shall be compacted to a minimum of 90% of standard proctor with proper moisture control.
K. 
All topsoil which is excavated from a site shall be stockpiled and used for the restoration of the site and such stockpiles where necessary, shall be seeded or otherwise treated to minimize the effects of erosion.
L. 
Prior to, during and after site preparation and construction, an integrated drainage system shall be provided which at all times minimizes erosion, sediment, hazards of slope instability and adverse effects on neighboring property owners.
M. 
The natural drainage system shall generally be preserved in preference to modifications of this system, excepting where such modifications are necessary to reduce levels of erosion and sediment and adverse effects on neighboring property owners.
N. 
All drainage systems shall be designed to handle adequately anticipated flows both within the site and from the entire upstream drainage basin.
O. 
Sufficient grades and drainage facilities shall be provided to prevent the ponding of water, unless such ponding is proposed within site plans, in which event there shall be sufficient water flow to maintain proposed water levels and to avoid stagnation.
P. 
There shall be provided where necessary to minimize erosion and sediment such measures as benches, berms, terraces, diversions and sediment, debris and retention of basins.
Q. 
Drainage systems, plantings and other erosions or sediment control devices shall be maintained as frequently as necessary to provide adequate protection against erosion and sediment and to ensure that the free flow of water is not obstructed by the accumulation of silt, debris or other material or by structural damage.
R. 
Tree removal or destruction shall be permitted if the presence of trees would cause hardship preventing the reasonable use of the property for approved or permitted purposes, which hardship is not self-created and is unique to the property; or endanger the public or the person or property of the owner or neighbors; or the trees are on property to be occupied by buildings, structures or related improvements and within a distance of 10 feet around the perimeter of such building or structure; or block an important viewshed and the removal of the trees is performed in a selective manner. Other considerations may include the likelihood of the survival of the tree, economical considerations of land use, the general welfare and the overall environment of the area, whether the removal will have significant adverse impact on ecological systems, including erosion potential and wildlife habitat, and whether the removal will have significant adverse impact on other properties or roadways, including impacts on drainage. The Planning Board may require proposed buildings or structures to be relocated on a plan or reduced in size in order to save a tree or trees which the Planning Board determines to be important or whose removal will have significant adverse impact.
[Added 5-22-2006 by L.L. No. 2-2006]
S. 
During site preparation activities, the property owner or developer shall protect all trees on the approved subdivision plat, site plan and/or permit map, as the case may be, designated to be preserved by the Planning Board.
[Added 5-22-2006 by L.L. No. 2-2006]
(1) 
Unless the Planning Board, for good cause, determines otherwise, all trees designated to be preserved by the Planning Board shall be guarded as follows: (1) for trees with a crown spread of eight feet or less, a substantial fence, frame or box not less than four feet high and eight feet square shall surround the tree; (2) for a tree with a crown spread over eight feet, a fence not less than four feet high shall be placed at least at the tree's dripline marking the outer edges of the branches or at a distance otherwise prescribed by the Planning Board.
(2) 
Fencing shall, at a minimum, be constructed of orange nylon-type material and stakes. The authorized official may approve other suitable fencing. Fencing and other barriers shall be erected before site preparation begins and remain in place until granting of the certificate of occupancy, except for work specifically required in the tree protection area in the approved plans. The owner or contractor shall submit written verification to the Building Inspector that required tree barriers are in place prior to demolition or building permit issuance. Every effort to avoid compaction of soil porosity within the tree protection area shall be taken at all times as mitigation against injury. All building material, soil or debris shall be kept outside these barriers, and water shall not be permitted to accumulate near the base of the tree. Roads and driveways shall be located as far from protected tree areas as possible. If a temporary driveway is needed in the root zone of a protected tree, 12 inches of wood chips shall be used as a base for the equipment to drive on. Such trees shall not be damaged during site preparation activities or removed without the prior consent of the Planning Board. In the event that such trees are damaged during site preparation activities or removed without prior consent of the Planning Board, such trees shall be replaced by trees the size and species of which are to be determined by the Planning Board, which trees shall be guaranteed and maintained for a period of two years. Unless the Planning Board, for good cause, determines otherwise, damaged, destroyed or removed protected trees shall be replaced by the caliper inch, such that for every inch of diameter (DBH) removed, an equal number of caliper inches shall be replaced (for example, the unauthorized removal of one twelve-inch DBH tree shall necessitate the planting of six two-inch DBH trees or four three-inch DBH trees, etc.). No site plan approval, special permit, building permit, certificate of occupancy, variance, or other Town permit shall be issued by any Town agency for said property until such replacement has been completed and approved by the authorized official, and the Planning Board may revoke the existing permit in accordance with the provisions of § 101-8J.
A. 
After the approval of the application and before the issuance of any permit, the applicant shall file with the Town Clerk an amount of the estimated cost of the project as submitted under § 101-9 of this chapter and verified by the authorized official, one of the following performance guaranties:
(1) 
A certified check.
(2) 
A performance bond which shall be satisfactory to the Town Board and Town Attorney as to form, sufficiency, manner of execution, surety and period of execution.
(3) 
A letter of credit from a bank approved by the Town Board and Town Attorney.
B. 
The Town Planning Board may grant a waiver of such guaranty if it deems the proposed activities to be of minor scope and to be consistent with the provisions of this chapter.
C. 
The party or parties filing the performance guaranty provide that either upon termination of the permit or the operation, whichever may come first, the project shall be in conformity with both the approved specific requirements of the permit and the provisions of this chapter. In the event of default of such and violation of any other applicable laws, such performance guaranty shall be forfeited to the Town. The Town shall return to the applicant any amount that is not needed to cover the costs of restoration, administration and any other expenses incurred by the Town as a result of the applicant's default. Such performance guaranty shall continue in full force and effect until a certificate of compliance shall be issued by the authorized official after such consultation with any agencies or individuals as he deems necessary to ensure that all provisions of this chapter and of the permit have been met.
D. 
The Town Planning Board may additionally require that an applicant furnish the Town, before the issuance of any permit, with a performance security in one of the forms specified in Subsection A above in an amount sufficient to cover 100% of the total replacement cost of trees designated for preservation by the Planning Board plus the cost of measures required for the protection of trees in accordance with the approved application, in order to insure the repair and replacement, if necessary, of such trees designated for preservation. The total amount of the performance security shall reflect all restoration and protection costs and shall be in accordance with each set of individual circumstances. Upon completion of all restoration work to the satisfaction of the authorized official, the performance bond shall be canceled and replaced with a maintenance security to be approved by the Town Board and Town Attorney and to run for a period of two years.
[Added 5-22-2006 by L.L. No. 2-2006]
A. 
The Town Board shall appoint an official to enforce the provisions of this chapter.
B. 
Any person, firm, partnership, corporation or other party who violates any provision of this chapter shall, upon conviction thereof, pay a fine a fine not to exceed $250 or be imprisoned not to exceed 15 days, or both. The imposition of any such penalty for the violation of this chapter shall not excuse such violation nor permit the continuance thereof. The application of the above penalty or penalties for a violation of the provisions of this chapter shall not be held to prevent the removal of conditions prohibited by this chapter by such legal means as may be proper.
[Amended 3-10-1998 by L.L. No. 1-1998]
C. 
Every day that a violation of any of the provisions of this chapter continues after written notice shall have been served upon the owner or his agent, either personally or by certified mail addressed to such person at his last known address, shall constitute a separate violation.
D. 
Report of unsafe conditions.
(1) 
If, in the opinion of the enforcement official, a violation of this chapter has caused soil, liquid or other material to roll, flow or wash upon any public or private property or right-of-way and has created a dangerous, unsafe or unhealthy condition to such property or to the public, he shall immediately report such condition, in writing, to the Town Board.
(2) 
The Town Board shall immediately consider such report and shall, by resolution, determine the existence of such violation of this chapter and the dangerous, unsafe or unhealthy condition reported to the Town Board.
(3) 
If the Town Board determines that such violation and such dangerous, unhealthy or unsafe condition exists, the Town Board shall immediately serve a copy of its resolution and the report upon which it is based upon the owner of the property upon which such condition has been created. Such service shall be made personally or by certified mail, return receipt requested.
(4) 
Within five days of the receipt of such resolution and report the owner of the property shall remedy said violation and the dangerous, unhealthy or unsafe condition created. If the owner fails to do so, the Town Board may, at its option, make application to the Supreme Court of Orange County for an order authorizing the Town of Highlands to enter upon said property and make the repairs necessary to remedy the violation and unsafe, dangerous or unhealthy condition and charge the cost thereof to the property owner. Such cost shall be a debt of the property owner owed to the Town of Highlands.
E. 
In addition to the penalties set forth in Subsection B, any person violating any provision of this chapter pertaining to tree removal or destruction shall be subject to a civil penalty enforceable and collectible by the Town in the amount of $250 each day the violation continues for every tree until tree replacement has been completed and approved by the authorized official.
[Added 5-22-2006 by L.L. No. 2-2006]