[HISTORY: Adopted by the Town Board of the
Town of Tuxedo 8-30-1976 as L.L. No. 4-1976. Amendments noted where
applicable.]
This chapter shall be known as the "Freshwater
Wetlands Protection Law of Tuxedo."
It is declared to be the public policy of the
Town of Tuxedo 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 Town of Tuxedo. It is further
declared to be the policy of the Town of Tuxedo to exercise its authority
pursuant to Article 24 of the State Environmental Conservation Law.
A.
The freshwater wetlands located in the Town of Tuxedo
are invaluable resources for flood protection, wildlife habitat, open
space and water resources.
B.
Considerable acreage of freshwater wetlands in the
Town of Tuxedo has been lost, despoiled or impaired by unregulated
draining, dredging, filling, excavating, building, pollution or other
acts inconsistent with the natural uses of such areas. Other freshwater
wetlands are in jeopardy of being lost, despoiled or impaired by such
unregulated acts.
C.
Recurrent flooding aggravated or caused by the loss
of freshwater wetlands has serious effects upon natural ecosystems.
D.
Freshwater wetlands conservation is a matter of the
Town of Tuxedo's concern.
E.
Any loss of freshwater wetlands deprives the people
of the Town of Tuxedo of some or all of the many and multiple benefits
to be derived from wetlands, namely:
(1)
Flood and storm control by the hydrologic absorption
and storage capacity of freshwater wetlands.
(2)
Wildlife habitat by providing breeding, nesting and
feeding grounds and cover for many forms of wildlife, wildfowl and
shorebirds, including migratory wildfowl and rare species.
(3)
Protection of subsurface water resources and provision
for valuable watersheds and recharging groundwater supplies.
(4)
Recreation by providing areas for hunting, fishing,
boating, hiking, bird-watching, photography, camping and other uses.
(5)
Pollution treatment by serving as biological and chemical
oxidation basins.
(6)
Erosion control by serving as sedimentation areas
and filtering basins, absorbing silt and organic matter and protecting
channels and harbors.
(7)
Education and scientific research by providing readily
accessible outdoor biophysical laboratories, living classrooms and
training and education resources.
(8)
Open space and aesthetic appreciation.
(9)
Sources of nutrients in freshwater food cycles and
nursery grounds and sanctuaries for freshwater fish.
F.
Regulation of freshwater wetlands, in accordance with the agricultural exemption established in § 55-5 hereof, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, make reasonable use of water resources, harvest natural products of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural production.
The following terms, phrases, words and their
derivatives shall have the meanings given herein:
Any land in the Town of Tuxedo immediately adjacent to a
freshwater wetland lying within 100 feet, measured horizontally, from
the boundary of a freshwater wetland.
The Planning Board of the Town of Tuxedo.
Any person who files an application for any permit issued
by the agency pursuant to this chapter, and includes the agent of
the owner or a contract vendee.
The Freshwater Wetlands Appeals Board established by Article
24 of the State Environmental Conservation Law.
Lands and water lying within the boundaries of the Town of
Tuxedo as shown on a freshwater wetlands map 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 spp.), black spruce (Picea mariana), swamp
white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), American
elm (Ulmus americana) and larch (Larix laricina).
(2)
Wetland shrubs, which depend upon seasonal or permanent
flooding or sufficiently waterlogged soils to give them a competitive
advantage over other shrubs, including, among others, alder (Alnus
spp.), buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda
glaucophylla) and leatherleaf (Chamaedaphne calyculata).
(3)
Emergent vegetation, including, among others, cattails
(Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus
spp.), arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.),
reed (Phragmites communis), wild rice (Zizania aquatica), bur reeds
(Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife
(Decodon verticillatus) and water plantain (Alisma plantago-aquatica).
(4)
Rooted, floating-leaved vegetation, including, among
others, water lily (Nymphaea odorata), water shield (Brasenia schreberi)
and spatterdock (Nuphar spp.).
(5)
Free-floating vegetation, including, among others,
duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal
(Wolffia spp.).
(6)
Wet meadow vegetation, which depends upon seasonal
or permanent flooding or sufficiently waterlogged soils to give them
a competitive advantage over other open land vegetation, including,
among others, sedges (Carex spp.), rushes (Juncus spp.), cattails
(Typha spp.), rice cut grass (Leersia oryzoides), reed canary grass
(Phalaris arundinacea), swamp loosestrife (Decodon verticillatus)
and spike rush (Eleocharis spp.).
(7)
Bog mat vegetation, including among others, sphagnum
mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf
(Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea) and
cranberries (Vaccinium macrocarpon and V. oxycoccos).
(8)
Submergent vegetation, including, among others, pondweeds
(Potamogeton spp.), naiads (Najas spp.), bladderworts (Utricularia
spp.), wild celery (Vallisneria americana), coontail (Ceratophyllum
demersum), water milfoils (Myriophyllum spp.), muskgrass (Chara spp.),
stonewort (Nitella spp.), waterweeds (Elodea spp.) and water smartweed
(Polygonum amphibium).
B.
Lands and submerged lands containing remnants of any
vegetation that are not aquatic or semiaquatic that have 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.
D.
FRESHWATER WETLANDS MAP
LOCAL GOVERNMENT
PARTY IN INTEREST
PERSON
POLLUTION
PROJECT
REGULATED ACTIVITY
SELECTIVE CUTTING
STATE
STATE AGENCY
SUBDIVISION OF LAND
TOWN
The waters overlying the areas as set forth in Subsections A and B and the lands underlying Subsection C.
A map on which are indicated the boundaries of any freshwater
wetland and which has been filed with the Clerk of the Town of Tuxedo
by the State Department of Environmental Conservation pursuant to
§ 24-0301 of the State Environmental Conservation Law.
A city, county, town or village.
The applicant, the agency, the State Department of Environmental Conservation, each local government in which the regulated activity or any part thereof is located and any person who appears and wishes to be "party in interest" at the public hearing held pursuant to § 55-7 of this chapter.
Any corporation, firm, partnership, association, trust, estate,
one or more individuals and any unit of government or agency or subdivision
thereof.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to humans, plants, animals or property.
Any action which may result in direct or indirect physical
impact on a freshwater wetland, including but not limited to any regulated
activity.
Any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly; any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures or roads, the driving of pilings or placing of any other obstructions, whether or not changing the ebb and flow of the water; any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes directly into or so as to drain into a freshwater wetland; that portion of any subdivision of land that involves any land in any freshwater wetland or adjacent area; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are set forth in § 55-3 of this chapter.
The annual or periodic removal of trees, individually or
in small groups, in order to realize the yield and establish a new
crop and to improve the forest, which removal does not involve the
total elimination of one or more particular species of trees.
The State of New York.
Any state department, bureau, commission, board or other
agency, public authority or public benefit corporation.
Any division of land into two or more lots, parcels or sites,
whether adjoining or not, for the purpose of sale, lease, license
or any form of separate ownership or occupancy (including any grading,
road construction, installation of utilities or other improvements
or any other land use and development preparatory or incidental to
any such division) by any person or by any other person controlled
by, under common control with or controlling such person or by any
group of persons acting in concert as part of a common scheme or plan.
"Subdivision of land" shall include any map, plat or other plan of
division of land, whether or not previously filed. "Subdivision of
land" shall not include the lease of land for hunting and fishing
and other open space recreation uses and shall not include the division
of land by bona fide gift, devise or inheritance.
The Town of Tuxedo.
A.
Except as provided in Subsection B of this section, no person shall conduct a regulated activity on any freshwater wetland or adjacent area unless such person has first obtained a permit pursuant to this chapter.
B.
No permit under this chapter shall be required for:
(1)
The deposition or removal of the natural products
of freshwater wetlands and adjacent areas by recreational or commercial
fishing, shellfishing, aquiculture, hunting or trapping where otherwise
legally permitted and regulated.
(2)
The activities of farmers and other landowners in
grazing and watering livestock, making reasonable use of water resources,
harvesting natural products of wetlands or adjacent areas, selective
cutting of timber, draining land or wetlands for growing agricultural
products and otherwise engaging in the use of wetlands or other land
for growing agricultural products, except that structures not required
for enhancement or maintenance of the agricultural productivity of
the land and any filling activities shall not be excluded hereunder.
Each farmer or other landowner who intends to conduct an otherwise
regulated activity shall notify the agency in writing, prior to conducting
the activity, of his or her intention to engage in such activity,
stating the approximate acreage of freshwater wetland or adjacent
area affected, the location thereof, the methods to be employed and
the uses to be made of such land. A soil and water conservation plan
prepared by a Soil and Water Conservation District and filed with
the agency shall be deemed sufficient notification for the purposes
of this subsection.
(3)
Public health activities, orders and regulations of
the county department of health undertaken in compliance with § 24-0701(5)
of the State Environmental Conservation Law.
(4)
Activities subject to the review jurisdiction of the
State Public Service Commission or the New York State Board on Electric
Generation Siting and the Environment under Article 7 or Article 8
of the State Public Service Law, respectively. The standards and restrictions
of this chapter will be applied by said bodies in determining whether
to issue a certificate of environmental compatibility and public need
under such Articles.
(5)
Any actual and ongoing emergency activity which is
immediately necessary for the protection and preservation of life
or property or the protection or preservation of natural resource
values. Such emergency activities include, for example, search and
rescue operations; preventive or remedial activities related to large-scale
contamination of streams or other bodies of water; floods, hurricanes
and other storms; and public health concerns. Within five days of
the end of such an emergency involving the undertaking of any activity
which otherwise would be treated as a regulated activity under this
chapter, the person chiefly responsible for undertaking such emergency
activity shall send a written statement to the agency setting forth
the pertinent facts regarding such emergency, including an explanation
of the life, property or resource values such activity was designed
to protect or preserve.
(6)
Any activity located in a freshwater wetland where
such wetland is located in more than one town.
A.
Any person proposing to conduct or cause to be conducted
a regulated activity requiring a permit under this chapter upon any
freshwater wetland or adjacent area shall file an application for
a permit with the Clerk of the Town of Tuxedo. The Clerk shall immediately
forward such application to the agency.
B.
An application for a permit shall be filed by the
applicant on a form prescribed by the agency. Such application shall
set forth the purpose, character and extent of the proposed regulated
activity. The application shall include a detailed description of
the regulated activity, a map showing the area of freshwater wetland
or adjacent area directly affected, with the location of the proposed
regulated activity thereon, a deed or other legal description describing
the subject property and such additional information as the agency
deems sufficient to enable it to make the findings and determinations
required under this chapter. The application shall be accompanied
by a list of the names of the owners of record of lands adjacent to
the freshwater wetland or adjacent area upon which the project is
to be undertaken and the names of known claimants of water rights,
of whom the applicant has notice, which relate to any land within,
or within 100 feet of the boundary of, the property on which the proposed
regulated activity will be located. An application shall not be deemed
to be completed or received until the agency determines that all such
information, including any additional information requested, has been
supplied in a complete and satisfactory form.
C.
The Clerk of the Town of Tuxedo shall cause a copy
of such completed application to be mailed to all local governments
where the proposed activity or any part thereof is located.
D.
Notice of application.
(1)
Within five days of its receipt of a completed application
for a permit regarding a proposed regulated activity, the agency shall
provide the applicant with a notice of application which the applicant
shall publish at his or her own expense at least once in each of at
least two newspapers having a general circulation in the Town of Tuxedo.
Said notice of application shall be in a form prescribed by the agency
and shall:
(a)
Specify that persons wishing to object to the
application should file with the agency a notice of objection by a
specified date, together with a statement of the precise grounds of
objection to the application.
(b)
Specify that if no notices of objection are
timely filed or if the agency determines that the proposed activity
is of such minor nature as to not affect or endanger the balance of
systems within any freshwater wetland, then the agency, in its discretion,
may determine that a hearing is not necessary and dispense with the
public hearing.
(c)
Specify that the application, including all
documents and maps therewith, is available for public inspection at
the office of the Clerk of the Town of Tuxedo.
E.
Hearing.
(1)
No sooner than 30 days and not later than 60 days after its receipt of a completed application for a permit regarding a proposed regulated activity and after the publication of a notice of application pursuant to Subsection D of this section, the agency shall hold a public hearing on such application at a suitable location in the Town of Tuxedo, which hearing shall be held pursuant to the provisions of § 55-7 of this chapter.
(2)
Notwithstanding the provisions of Subsection E(1), where no notice of objection to the notice of application published pursuant to Subsection D of this section shall have been filed within the time specified by that notice or where the agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any freshwater wetland, the agency may, in its discretion, dispense with such hearing. Where the agency finds that a public hearing is not necessary, it shall publish a decision setting forth its reasons therefor, which decision shall be a matter of public record and shall be mailed to each local government where the proposed regulated activity or any part thereof will be located. Public notice of such decision that a public hearing is not necessary shall be provided in the same manner as notice of application set forth in Subsection D of this section.
F.
Notice of hearing.
(1)
The agency shall, within 21 days of receipt of a completed
application, provide the applicant with a notice of hearing which
the applicant shall publish at his or her own expense at least 15
days prior to the date set for the hearing at least once in each of
at least two newspapers of general circulation in the Town of Tuxedo.
(2)
At least 15 days prior to the date set for the hearing,
the agency shall by certified mail provide a notice of hearing to
each local government within whose boundaries the proposed regulated
activity or any portion thereof will be located.
(3)
At least 15 days prior to the date set for the hearing,
the agency shall, by certified mail, provide notice of hearing to
all owners of record of land adjacent to the affected freshwater wetland
or adjacent area and to all known claimants of water rights, of whom
the applicant has notice, which relate to any land within, or within
100 feet of the boundary of, the property on which the proposed regulated
activity will be located.
(4)
The notice of hearing shall:
(a)
State the name of the applicant.
(b)
Specify the location and outline the scope of
the proposed regulated activity.
(c)
Specify the date, time and place of the public
hearing on the application.
(d)
Specify that persons wishing to be parties in
interest and eligible to be heard at such public hearing, if any,
should file with the agency a notice of appearance by a specified
date, together with a statement of the precise grounds of support
of, opposition to or interest in the application.
(e)
Specify that any person who wishes to be a party
in interest without filing a notice of appearance may do so by appearing
at the public hearing and indicating his or her desire to be a party
in interest if a public hearing is held.
(f)
Specify that if no notices of appearance are
timely filed by any party in interest and if the applicant waives
any public hearing, then the public hearing may be canceled by the
agency.
(g)
Specify that the application, including all
documents and maps therewith, is available for public inspection at
the office of the Clerk of the Town of Tuxedo.
G.
The agency shall make the application, including all
documents and maps associated with it, available for public inspection
at the office of the Clerk of the Town of Tuxedo.
H.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to Subsection F of this section and the applicant waives in writing any public hearing on his or her application, the agency may dispense with a public hearing, and in such instance shall provide public notice of the cancellation of the hearing.
I.
For any notice canceling a hearing which has been scheduled, notice shall be given on the same basis as the notice of public hearing provided in Subsection F of this section.
J.
The agency may establish permit fees to assist in
its implementation of this chapter.
A.
Any public hearing held on a permit application received
under this chapter shall be conducted by a hearing officer designated
by the agency. The hearing officer shall have full authority to control
the conduct and procedure of the hearing and shall be responsible
that a complete record of the hearing be kept. The public hearing
shall be held within the Town of Tuxedo.
B.
Testimony.
(1)
Any person may appear as a party in interest, notwithstanding
the failure of such person to file a timely notice of appearance,
by appearing at the hearing and making known his or her desire to
be a party in interest. Persons who are not parties in interest may
be allowed to participate in the hearing where the hearing officer
finds that such participation would be in the public interest.
(2)
All parties in interest shall be afforded an opportunity
to present oral and written arguments on issues of law and policy
and an opportunity to call witnesses in their behalf and to present
oral and written evidence on issues of fact. The hearing officer shall
permit the parties in interest to cross-examine witnesses, but may
limit such cross-examination to avoid the introduction of irrelevant
or repetitious material in the record of the hearing.
A.
Where a public hearing has been held regarding a permit
application, the agency shall either issue the permit requested, with
or without conditions, or deny the application. The decision by the
agency to issue or deny a permit after public hearing shall be based
on the record of the hearing and shall be made in writing within 30
days of the agency's receipt of the hearing record.
B.
Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to § 55-6E(2) of this chapter or because no notice of appearance was filed with regard to the public hearing and a hearing was canceled pursuant to § 55-6H of this chapter, the agency shall compile an official file consisting of documents submitted by the applicant and any additional documents relied on by the agency with respect to the application. The agency may also take notice of general, technical or scientific facts within the specialized knowledge of the agency. Any document made part of such official file shall be available for inspection by the applicant and any interested member of the public. On the basis of such file, the agency shall either issue the permit requested, with or without conditions, deny the application or order a public hearing to be held pursuant to the provisions of this chapter. The decision by the agency to issue or deny a permit or to order that a hearing be held shall be based on the official file and shall be made in writing within 30 days of its completion of the official file, and in any event within 60 days of its receipt of a completed application, provided that in the case where there have been no objections filed regarding a proposed project, the issuance of a permit shall be deemed to be a written decision by the agency.
C.
A copy of the decision of the agency on each application
for a permit under this chapter shall be mailed by the agency as soon
as practicable following such decision to the applicant and to each
local government within whose boundaries the proposed regulated activity
or any portion thereof is located and, if a public hearing has been
held regarding the application, to each party in interest.
A.
In granting, denying or conditioning any permit, the agency shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and the protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom which are set forth in § 55-3 of this chapter.
B.
No permit shall be issued by the agency pursuant to
this chapter unless the agency shall find that;
(1)
The proposed regulated activity is consistent with
the policy of this chapter to preserve, protect and conserve freshwater
wetlands and the benefits derived therefrom and to prevent the despoliation
and destruction of freshwater wetlands, and is consistent with the
general welfare and beneficial economic, social and agricultural development
of the Town.
(2)
The proposed regulated activity is consistent with
the land use regulations applicable in the Town of Tuxedo pursuant
to § 24-0903 of Article 24 of the State Environmental Conservation
Law.
(3)
The proposed regulated activity is compatible with
the public health and welfare.
(4)
The proposed regulated activity is reasonable and
necessary.
(5)
There is no reasonable alternative for the proposed
regulated activity on a site which is not a freshwater wetland or
adjacent area.
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The applicant shall have the burden of demonstrating
that the proposed regulated activity will be in accord with the standards
set forth in this subsection.
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C.
Duly filed written notice by the state or any agency
or subdivision thereof to the agency that the state or any such agency
or subdivision is in the process of acquiring the affected freshwater
wetland on which a proposed regulated activity would be located by
negotiation or condemnation shall be sufficient basis for denial of
a permit for such regulated activity. Such notice may be provided
at any time prior to the agency's decision to issue or deny a permit
for the regulated activity.
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 agency's rules and regulations adopted pursuant
to this chapter.
B.
Every permit issued pursuant to this chapter shall
contain the following conditions:
(1)
The agency shall have the right to inspect the project
from time to time.
(2)
The permit shall expire on a date certain.
(3)
The permit holder shall notify the agency of the date
on which the project construction is to begin at least five days in
advance of such date.
(4)
The agency's permit shall be prominently displayed
at the project site during the undertaking of the activities authorized
by the permit.
C.
The agency shall set forth in writing in the file
it keeps regarding a permit application its findings and reasons for
all conditions attached to any permit.
In order to carry out the purposes and provisions
of this chapter, the agency shall have the following powers:
A.
To appoint officers, agents, employees and prescribe
their duties and qualifications and fix their compensation.
B.
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 agency), 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 purpose and policies of this chapter.
C.
To contract for professional and technical assistance
and advice.
D.
To hold hearings and subpoena witnesses in the exercise
of its powers, functions and duties provided for by this chapter.
A.
To the greatest extent practicable, any public hearing held pursuant to § 55-7 of this chapter shall be incorporated with any public hearing required by or pursuant to the New York State Town Law, Village Law, General City Law, General Municipal Law or Environmental Conservation Law relating to approvals or permits otherwise required for the undertaking of regulated activities on the freshwater wetland or adjacent area in question.
B.
No permit granted pursuant to this chapter shall remove
any person's obligation to comply in all respects with the applicable
provisions of any other federal, state or local law or regulation,
including but not limited to the acquisition of any other required
permit or approval.
A.
The agency may require that, prior to commencement
of work under any permit issued pursuant to this chapter, the permittee
shall post a bond with the agency, in an amount determined by the
agency, conditioned upon the faithful compliance with the terms of
such permit and for the indemnification of the Town of Tuxedo for
restoration costs resulting from failure to so comply. Such bond shall
be issued by a corporate surety authorized to do business in the state
and shall be in favor of the Town of Tuxedo. It shall remain in effect
until the agency certifies that the work has been completed in compliance
with the terms of the permit, or the bond is released by the agency,
or a substitute bond is provided.
B.
The agency shall set forth in writing in the file
it keeps regarding a permit application its findings and reasons for
imposing a bond pursuant to this section.
A.
The agency 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.
B.
The agency shall set forth in writing in the file
it keeps regarding a permit application its findings and reasons for
revoking or suspending a permit pursuant to this section.
A.
Administrative sanction. Any person who violates,
disobeys or disregards any provision of this chapter, including any
provision of any permit issued pursuant to this chapter or any rule
or regulation adopted by the agency pursuant to this chapter, shall
be liable to the people of the state for a civil penalty of not to
exceed $3,000 for every such violation, to be assessed, after a hearing
or opportunity to be heard upon due notice and with the rights to
specification of the charges and representation by counsel to such
hearing, by the agency. Such penalty may be recovered in an action
brought by the Attorney General at the request and in the name of
the agency in any court of competent jurisdiction. Such civil penalty
may be released or compromised by the agency before the matter has
been referred to the Attorney General, and such penalty may be released
or compromised, and any action commenced to recover the same may be
settled and discontinued by the Attorney General with the consent
of the agency. In addition, the agency shall have power, following
a hearing held in conformance with the procedure set forth in § 71-1709
of the State Environmental Conservation Law, to direct the violator
to cease his or her violation of this chapter and to restore the affected
freshwater wetland to its condition prior to the violation, insofar
as that is possible, within a reasonable time and under the supervision
of the agency. Any such order of the agency shall be enforceable in
an action brought by the Attorney General at the request and in the
name of the agency in any court of competent jurisdiction. Any civil
penalty or order issued by the agency pursuant to this subsection
shall be reviewable in a proceeding pursuant to Article 78 of the
State Civil Practice Law and Rules.
B.
Criminal sanction. Any person who violates an order,
permit or rule or regulation of the agency regulating freshwater wetlands
and adjacent areas pursuant to this chapter shall, in addition, for
the first offense be guilty of a violation punishable by a fine of
not less than $500 nor 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 nor more than six months, or both. Instead
of these punishments, any offender may be punishable by being ordered
by the court to restore the affected freshwater wetland 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 agency. Each
offense shall be a separate and distinct offense, and, in the case
of a continuing offense, each day's continuance thereof shall be deemed
a separate and distinct offense.
A.
The Attorney General, upon his or her own initiative
or upon complaint of the agency, shall prosecute persons alleged to
have violated any such order of the agency pursuant to this chapter.
B.
The agency 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 agency, or any officer
or employee thereof, made pursuant to or within the scope of this
chapter may be reviewed at the instance of any person affected thereby,
including but not limited to any owner of the affected wetland or
adjacent area and any resident or citizen of the Town of Tuxedo, by
the Board in accordance with Title 11 of Article 24 of the State Environmental
Conservation Law, provided that such review is commenced by the filing
with the Board of a notice of review within 30 days after service
of such order or notice of such decision given, as the case may be.
B.
Any party to any proceeding before the agency may
make an appeal to the Board in accordance with Title 11 of Article
24 of the State Environmental Conservation Law from any order or decision
of the agency, or any officer or employee thereof, issued or pursuant
to or within the scope of this chapter, provided that such appeal
is commenced by the filing with the Board of a notice of appeal within
30 days after service of such order of after notice of such decision
given, as the case may be.
C.
Any decision or order of the agency, or any officer
or employee thereof, made pursuant to or within the scope of this
chapter may be reviewed at the instance of any person, including but
not limited to any owner of the affected wetland or adjacent area
and any resident or citizen of the Town of Tuxedo, in accordance with
Article 78 of the State Civil Practice Law and Rules, provided that
such review is commenced within 30 days of the filing of such decision
or order; and the limitation upon the availability of such remedy
as prescribed in § 7801 of the Civil Practice Law and Rules
shall not be applicable to the applications for review of determinations
and orders made pursuant to this chapter.
D.
The institution of a judicial proceeding to review
a determination or order of the agency shall preclude the institution
of a proceeding before the Board to review such a determination or
order. The availability of such review by the Board shall not affect
the right of any person to seek review of a determination of the agency
as provided in Article 78 of the State Civil Practice Law and Rules.
This chapter shall take effect upon the filing
with the Clerk of the Town of Tuxedo of the final freshwater wetlands
map by the State Department of Environmental Conservation pursuant
to § 24-0301 of the New York State Environmental Conservation
Law applicable to any or all lands within the Town of Tuxedo and after
filing the same with the Secretary of State.
