[HISTORY: Adopted by the Board of Trustees of the Village of Lloyd Harbor 2-28-1983 as Article 19 of L.L. No. 2-1983. Amendments noted where applicable.]
A. 
The Village of Lloyd Harbor finds that freshwater wetlands are invaluable resources for flood protection, wildlife habitat, open space, water resources and other benefits associated therewith which, if preserved and maintained in an undisturbed natural condition, constitute important social, economic and aesthetic assets to existing and future residents of the Village.
B. 
Intent.
(1) 
It is the intent of the Board of Trustees to protect the residents of the Village by preserving, protecting and conserving freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands and to regulate use and development of such wetlands consistent with the general welfare of the Village under its general police power and pursuant to Article 24 of the New York State Environmental Conservation Law (NYSECL).
[Amended 4-18-1988 by L.L. No. 3-1988]
(2) 
It is also the intent of the Board of Trustees to promote the public purpose and the health, safety and general welfare of present and future residents of the Village by providing for the protection, proper maintenance and use of wetlands, water bodies and watercourses located within the Village by preventing or minimizing erosion due to flooding and stormwater runoff, maintaining the natural groundwater supplies, protecting subsurface water resources and providing valuable watersheds, preserving and protecting the purity, utility, water-retention capability, ecological functions and natural beauty of all wetlands, waterbodies, watercourses and other related natural features of the terrain, and by providing and protecting wildlife habitat.
As used in this chapter, the following terms shall have the meanings indicated:
ADJACENT AREA
All lands within 100 feet horizontally of the vegetative boundary of any freshwater wetland.
APPLICANT
Includes the owner of the affected property, his agent or contract vendee who files an application for a permit pursuant to this chapter.
BOUNDARY
The outer limit of vegetation specified in Subsections A and B of the definition of "freshwater wetlands" and the waters specified in Subsection C of the definition of "freshwater wetlands" below.
ENVIRONMENTAL REVIEW BOARD
The Board of Trustees or any board of the Village which has been designated by the Board of Trustees to be responsible for administering the provisions of this chapter and promulgating rules, regulations and procedures necessary to implement and administer properly the provisions herein.
FRESHWATER WETLANDS
[Amended 4-18-1988 by L.L. No. 3-1988]
Lands, submerged lands and waters in the Village as may be shown on the Freshwater Wetlands Map prepared by or for the State of New York and filed with the Village pursuant to § 24-0301 of NYSECL and as may be shown on freshwater wetlands maps the Village shall prepare and any lands, submerged lands and waters which contain any or all of the following:
A. 
Lands and submerged lands commonly called "marshes," "swamps," "sloughs," "bogs" and "flats," supporting aquatic or semiaquatic vegetation of the following vegetative types:
(1) 
Wetland trees, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others, red maple (Acer rubrum), willows (salix species), black spruce (Picea mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), American elm (Ulmus americana) and larch (Larix laricina).
(2) 
Wetland shrubs, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder (Alnus species), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne calyculata).
(3) 
Emergent vegetation, including, among others, cattails (Typha species), pickerelweed (Pontederia cordata), bulrushes (Scirpus species), arrow arum (Peltandra virginica), arrowheads (Sagittaria species), reed (Phragmites communis), wild rice (Zizania aquatica), burreeds (Sparganium species), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica).
(4) 
Rooted, floating-leaved vegetation, including, among others, waterlily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar species).
(5) 
Free-floating vegetation, including, among others, duckweed (Lemma species), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia species).
(6) 
Wet meadow vegetation, which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other openland vegetation, including, among others, sedges (Carex species), rushes (Juncus species), cattails (Typha species), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticillatus) and spike rush (Eleocharis species).
(7) 
Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum species), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea) and cranberries (Vaccinium macrocarpon and Vaccinium oxycoccos).
(8) 
Submergent vegetation, including, among others, pondweeds (Potamogeton species), naiads (Naias species), bladderworts (Utricularia species), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum species), muskgrass (Chara species), stonewort (Nitella species), waterweeds (Elodea species) and water smartweed (Polygonum amphibium).
B. 
Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet and provided further that such conditions can be expected to persist indefinitely, barring human intervention.
C. 
Lands and waters enclosed by aquatic or semiaquatic vegetation as set forth herein in Subsection A above and dead vegetation as set forth in Subsection B above, the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation.
D. 
The waters overlying the areas set forth in Subsections A and B, above the lands underlying Subsection C and all other ponds, streams and watercourses.
FRESHWATER WETLANDS BOARD OF APPEALS
The member board established by Article 24 of the NYSECL.
PARTY IN INTEREST
Includes the applicant, any person who is permitted to intervene pursuant to Article 24 of the NYSECL, the Village or an adjoining municipality within which is located the freshwater wetland or adjacent area which is the subject of an application for a permit.
PERMIT
A freshwater wetlands permit for the conduct of a regulated activity.
PERSON
Any corporation, firm, partnership, association, trust, estate, one or more individuals and any unit of state or local government, agency or subdivision thereof.
POLLUTION
The presence in the environment of human-induced conditions or contaminants in quantities or characteristics which are or may be injurious to humans, vegetation, wildlife or property.
PROJECT
Any action resulting in direct or indirect physical impact on a freshwater wetland, including but not limited to any regulated activity.
REGULATED ACTIVITY
Any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate, either directly or indirectly; any form of dumping, filling or deposition of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures, constructing roads, the driving of pilings or placing of any other obstructions, whether or not changing the ebb and flow of the water; any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland; and any other activity which substantially impairs any of the several functions served by the freshwater wetlands or the benefits derived therefrom which are set forth in § 24-0105 of the NYSECL.
A. 
No person shall conduct a regulated activity in any freshwater wetland or adjacent areas in the Village without first obtaining a permit issued by the Environmental Review Board.
B. 
Exceptions.
(1) 
As are otherwise legally permitted within the Village, the depositing or removal of the natural products of freshwater wetlands and adjacent areas as enumerated in § 24-0701, Subdivision 3, of the NYSECL and agricultural activities within said areas as are enumerated and defined in § 24-0701, Subdivision 4, of the NYSECL shall not be considered regulated activities.
(2) 
In addition, public health activities, orders and regulations of the Department of Health shall be excluded from regulated activities. This agency shall notify the Environmental Review Board, in writing, of the proposed activity which it will conduct.
(3) 
If the Environmental Review Board shall determine an emergency activity is immediately necessary to protect the health, safety and well-being of any person or to immediately prevent substantial damage to personal or real property, it may exempt such activity from regulation.
A. 
Any person proposing, permitting or causing to be conducted a regulated activity upon any freshwater wetland or adjacent area shall file an application for a permit with the Village Clerk. The application shall include a detailed description of the proposed activity, a map showing the area of freshwater wetland directly affected, with the location of the proposed activity thereon, and a current list of record owners of lands and claimants of water rights within 100 feet of the property on which the regulated activity is located.
B. 
After submission of the completed application, the applicant shall publish, at his/her expense, a notice of application, indicating that the applicant intends to file an application, in the official Village newspaper. The Environmental Review Board may waive the publishing of the notice of application and require the publication of the appropriate notice of hearing.
[Amended 4-18-1988 by L.L. No. 3-1988]
C. 
If no notice of objection has been filed by any party in interest in response to the notice of application or if the Environmental Review Board finds that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within the freshwater wetland, it may dispense with a public hearing. If the Environmental Review Board determines that a hearing is not to be held, the Board shall publish, in the Village newspaper, its decision setting forth its findings and reasons therefor.
D. 
If a hearing is to be held, it shall be scheduled no sooner than 30 days and not later than 60 days after the receipt of the completed application by the Village and the publishing of the notice of application. The applicant shall publish the notice of hearing at his/her expense in the official Village newspaper not more than 28 days nor less than 10 days prior to the date set for the hearing. The applicant shall also send, by certified mail, not less than 10 days prior to the date set for the hearing, the notice of hearing to owners of record of adjacent lands within 100 feet of the premises containing the wetlands and known claimants to water rights which will be affected.
[Amended 4-18-1988 by L.L. No. 3-1988]
No permit shall be issued by the Environmental Review Board pursuant to this chapter unless it shall find that:
A. 
The proposed regulated activity is consistent with the policy of this chapter to preserve, protect and conserve freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands and to regulate the development of such wetlands in order to secure the natural benefits of freshwater wetlands, consistent with the general welfare and beneficial economic, social and agricultural development of the Village.
B. 
The proposed regulated activity is consistent with the Village's land use regulations.
C. 
The proposed regulated activity is compatible with the public health and welfare.
D. 
The proposed regulated activity is reasonable and necessary.
E. 
There is no reasonable alternative for the proposed regulated activity on a site which is not a freshwater wetland or adjacent area.
A. 
Any permit issued pursuant to this chapter may be issued with conditions. Such conditions may be attached as are necessary to assure the preservation and protection of affected freshwater wetlands and to assure compliance with the policy and provisions of this chapter and the provisions of the Environmental Review Board rules and regulations adopted pursuant to this chapter.
B. 
The Environmental Review Board may require a performance bond in such form and sureties as it deems necessary. Said bond shall guarantee compliance with all provisions of this chapter and all other conditions and requirements imposed on the approval of the permit.
C. 
Operations conducted under the permit shall be open to inspection at any time by the Building Inspector or Code Enforcement Officer or Village Engineer. The issuance of a permit by the Environmental Review Board does not relieve the applicant from obtaining all other necessary authorizations.
D. 
The Environmental Review Board may suspend or revoke a permit issued pursuant to this chapter where it finds that the permittee has not complied with any or all terms of such permit, has exceeded the authority granted in the permit or has failed to undertake the project in the manner set forth in the application.
E. 
The Environmental Review Board may impose a permit fee in an amount required by resolution adopted by the Board of Trustees and may charge such fees and expenses to an applicant for official action as shall enable it to recover the costs incurred by reason of such application.
[Amended 4-18-1988 by L.L. No. 3-1988]
After a public hearing the Environmental Review Board may adopt, amend and repeal rules and regulations consistent with this chapter as it deems necessary and proper to administer this chapter.
A. 
Any person who violates, disobeys or disregards any provision of this chapter shall be liable for a civil penalty, not to exceed $3,000 for every such violation to be assessed. Each and every day a violation continues after written notice has been served on the violator by the Building Inspector or Code Enforcement Officer shall be deemed a separate violation. Before assessment of the civil penalty, the alleged violator shall be afforded a hearing or opportunity to be heard before the Environmental Review Board upon due notice and with the rights to specifications of the charges and representation by counsel.
B. 
The Environmental Review Board shall also have the power, following a hearing, to direct a violator to cease violation of this chapter and to satisfactorily restore the affected freshwater wetland to its condition prior to the violation under the Board's supervision.
C. 
Any civil penalty or order issued by the Village shall be reviewable pursuant to the New York State Civil Practice Law and Rules.
D. 
In addition to the above civil fine, any person who violates an order issued pursuant to Subsection B of this section  shall be guilty of a violation, pursuant to the Penal Law, punishable by a fine of not less than $500 nor more than $1,000. For a second and each subsequent offense, the violator shall be guilty of a violation punishable by a fine of not less than $1,000 nor more than $2,000.
E. 
The Environmental Review Board shall have the right to seek equitable relief to restrain any violation or threatened violation of any provisions of this chapter.
A. 
Any decision or order of the Environmental Review Board may be reviewed by the Freshwater Wetlands Board of Appeals in accordance with Title 11 of Article 24 of the NYSECL, provided that, within 30 days after service of such order or notice of such decision, such review is commenced by the filing with the Freshwater Wetlands Board of Appeals of a notice of review or commencement of a proceeding pursuant to Article 78 of the New York State Civil Practice Law and Rules.
B. 
The institution of a judicial proceeding to review a determination or order of the Environmental Review Board shall preclude the institution of a proceeding before the Freshwater Wetlands Board of Appeals to review such a determination or order.
A. 
After a public hearing, the Board of Trustees may adopt a Freshwater Wetlands Map indicating the boundaries of any freshwater wetlands in the Village, as defined herein, provided that said Freshwater Wetlands Map is no less restrictive than that which may be filed by the State Department of Environmental Conservation. The Board of Trustees may, after a public hearing, so amend, modify or update an adopted Freshwater Wetlands Map as it deems necessary and proper to carry out the intent of this chapter.
[Amended 4-18-1988 by L.L. No. 3-1988]
B. 
Any land and water not appearing on the above map or maps but which is found after a field inspection by the Village to contain any or all of the above vegetation, lands or water shall be a freshwater wetland pursuant to this chapter. The Board of Trustees shall thereafter hold a public hearing on whether the Village Freshwater Wetlands Map shall be amended to include said designated area.
[Amended 4-18-1988 by L.L. No. 3-1988]
C. 
Any freshwater wetland area so designated upon the filed map which upon field inspection by the Village representative is found not to contain any or all of the above vegetation, land or water shall not be deemed to be a freshwater wetland and the owner of said land shall be so notified, in writing, by the Village.[1]
[1]
Editor's Note: Original Section 1990, Effective date, which immediately followed this section, was repealed 4-18-1988 by L.L. No. 3-1988.