[HISTORY: Adopted by the Board of Trustees of the Village
of Sleepy Hollow 2-6-1990 by L.L. No. 1-1990 (Ch. 61 of the 1965
Code). Amendments noted where applicable.]
A.
In their natural state, wetland and watercourse complexes serve multiple
functions, including:
(1)
Protecting water resources by providing sources of surface water,
recharging groundwater and aquifers, serving as chemical and biological
oxidation basins and/or functioning as settling basins for naturally
occurring sedimentation.
(2)
Controlling flooding and stormwater runoff by storing or regulating
natural flows.
(3)
Providing unique nesting, migratory and wintering habitats for diverse
wildlife species, including many on the New York State and federal
endangered species lists.
(4)
Supporting unique vegetative associations specifically adapted for
survival in low-oxygen environments and/or brackish or salt water.
(5)
Providing areas of unusually high plant productivity which support
significant wildlife diversity and abundance.
(6)
Providing breeding and spawning grounds, nursery habitat and food
for various species of fish.
(7)
Serving as nutrient traps for nitrogen and phosphorus and filters
for surface water pollutants.
(8)
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
nitrogenous pollutants and return them to the atmosphere as inert
nitrogen gas.
(9)
Providing open space and visual relief from intense development in
urbanized and growing areas.
(10)
Serving as outdoor laboratories and living classrooms for the
study and appreciation of natural history, ecology and biology.
B.
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. Remaining wetlands are in jeopardy of being lost, despoiled
or impaired by such acts, contrary to the public safety and welfare.
C.
It is therefore the policy of the Village of Sleepy Hollow to protect
its citizens, including generations yet unborn, by preventing the
despoliation and destruction of wetlands while taking into account
varying ecological, economic, recreational and aesthetic values. Activities
that may damage wetlands should be located on upland areas.
It is the intent of the Village of Sleepy Hollow that activities
in and around wetland/watercourse complexes conform to all applicable
building codes, sediment control regulations and other regulations
and that such activities not threaten public safety or the natural
environment or cause nuisances by:
A.
Impeding flood flows, reducing flood storage areas or destroying
storm barriers, thereby resulting in increased flood heights, frequencies
or velocities on other lands.
B.
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; creation
of unstabilized fills; or the destruction of wetland soils and vegetation
serving pollution and sediment control functions.
C.
Increasing erosion.
D.
Decreasing breeding, nesting and feeding areas for many species of
waterfowl and shorebirds, including those rare and endangered.
E.
Interfering with the exchange of nutrients needed by fish and other
forms of wildlife.
F.
Decreasing habitat for fish and other forms of wildlife.
G.
Adversely altering the recharge or discharge functions of wetlands
and watercourses, thereby impacting groundwater or surface water supplies.
H.
Significantly altering the wetland/watercourse hydroperiod and thereby
causing either short- or long-term changes in vegetational composition,
soils characteristics, nutrient recycling or water chemistry.
I.
Destroying sites needed for education and scientific research, such
as outdoor biophysical laboratories, living classrooms and training
areas.
J.
Interfering with public rights in navigable waters and the recreation
opportunities provided by wetlands/watercourses for fishing, boating,
hiking, bird-watching, photography, camping and other passive uses.
K.
Destroying or damaging aesthetic and property values, including significant
public viewsheds.
A.
Wetlands and wetland buffers; new projects. This chapter shall apply to all lands defined as wetlands and wetland buffers, watercourses and watercourse buffers in § 418-5 and to any proposed regulated activity as defined in § 418-8 not physically completed as of the effective date of this chapter. As used in this subsection, the term "physically completed" shall mean the actual completion of construction activities related to a regulated activity, including filling, erection of structures or other improvement or development activities.
B.
Rules for establishing and interpreting wetland/watercourse boundaries. The boundaries of a wetland/watercourse ordinarily shall be determined by field investigation and flagging, with a subsequent survey by a licensed land surveyor, unless the last is waived by the Sleepy Hollow Planning Board. The Sleepy Hollow 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 § 418-5.
[Amended 8-20-1991 by L.L. No. 7-1991]
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. As used in this subsection,
the term "physically completed" shall mean the actual completion of
construction activities related to a regulated activity, including
filling, erecting structures or other improvement or development activities.
A regulated activity that was approved prior to passage of this
chapter and to which significant economic resources have been committed
pursuant to such approval but which is not in conformity with the
provisions of this chapter may be continued, subject to the following:
A.
All such activities shall continue to be governed by the present
laws of the Village of Sleepy Hollow.
B.
No such activity shall be expanded, changed, enlarged or altered
in such a way that increases its nonconformity without a permit.
C.
If a nonconforming activity is discontinued for 12 consecutive months,
any resumption of the activity shall conform to this chapter.
D.
If any nonconforming use or activity is destroyed by human activities
or an act of God, it shall not be resumed except in conformity with
the provisions of this chapter.
E.
Activities or adjuncts thereof that are or become nuisances shall
not be entitled to continue as nonconforming activities.
Words or phrases used 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 § 418-1:
See "wetland/watercourse buffer."
The activity of an individual farmer or other landowner in
grazing and watering livestock that directly produce agricultural
products; making reasonable use of water resources for agricultural
purposes; harvesting the natural products of wetlands, excluding peat
mining and timber harvesting; and filling or selective cutting of
trees. "Agricultural activity" does not mean the clear-cutting of
trees; filling or deposition of spoil; mining; grazing of horses for
nonagricultural purposes; nor draining for growing agricultural products
or for other purposes.
[Amended 8-20-1991 by L.L. No. 7-1991]
A person who files an application for a permit under this
chapter and who is either the owner of the 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.
The municipal or administrative board or public official
or municipal employee empowered to grant or deny permits under this
chapter, to require the posting of bonds as necessary and to revoke
or suspend a permit where lack of compliance with the permit is established.
The "approval authority" for the Village of Sleepy Hollow is the Planning
Board.
Cultivating and harvesting products, including fish and vegetation,
that are produced naturally in freshwater wetlands/watercourses and
installing cribs, racks and other in-water structures for cultivating
these products, but does not include filling, dredging, peat mining,
clear-cutting or the construction of any buildings or any water-regulating
structures such as dams.
The outer limit of the soils and/or vegetation as defined
under "wetland/freshwater wetland."
Any cutting of more than 30% of trees four inches or more
in diameter at breast height (4.5 feet) over any ten-year cutting
cycle, as determined on the basis of wetland area per lot or group
of lots under single ownership, including any cutting of trees which
results in the total removal of one or more naturally occurring species,
whether or not the cut meets or exceeds the threshold of 30%.
The Commissioner of the Department of Environmental Conservation
of the State of New York.
Barriers used or intended to or which, even though not intended,
in fact do obstruct the flow of water or raise, lower or maintain
the level of water.
An application shall be deemed "received" by the Environmental
Conservation Commission on the date of the first regular meeting following
the filing of the application and supporting plans pursuant to the
provisions of this chapter.
To fill, grade, discharge, emit, dump or place any material,
or the act thereof.
The emission of any water, substance or material into a wetland
or wetland buffer, whether or not such substance causes pollution.[1]
To deplete or empty of water by drawing off by degrees or
in increments.
To excavate or remove sediment, soil, mud, sand, shells,
gravel or other aggregate.
A person having special knowledge of the physical, chemical
and biological sciences related to the physiology, identification
and distribution of native plants and vegetative associations in wetland
and upland systems and of methods to describe, classify and delineate
vegetative species and associations. This person must possess a minimum
of two years' experience in classifying and mapping upland and
wetland vegetation and at least a bachelor's degree with 30 semester
hours (credits) or equivalent in biology, physical science and chemistry,
with a minimum of eight semester hours (credits) in botany. 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)
in botany.
To dig out and remove any material from a wetland/watercourse
or wetland/watercourse buffer.[2]
See "deposit."
The final freshwater wetlands map for Westchester County
promulgated by the Commissioner of the New York State Department of
Environmental Conservation pursuant to § 24-0301, Subdivision
5, of the New York State Freshwater Wetlands Act, or such map as has
been amended or adjusted, and on which are indicated the approximate
locations of the actual boundaries of wetlands regulated pursuant
to Article 24 of the Environmental Conservation Law.
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing and other modification
of the natural land surface.[3]
A soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in the upper part,
as further defined under "wetland."
Macrophytic plant life growing in water or on a substrate
that is at least periodically sufficient in oxygen as a result of
excessive water content, and as further defined under "wetland."[4]
Liquid, soil 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 site supporting facultative or obligate vegetation
anomalous within the context of the larger vegetative unit. Microsites
may be drier or wetter than surrounding areas as a result of altered
drainage, incidental topographic variation or a related characteristic.[5]
The Village of Sleepy Hollow.[6]
That form of written municipal approval required by this
chapter for the conduct of a regulated activity within a wetland/watercourse
or buffer.
See "applicant."
Any harmful thermal effect of the contamination or rendering
unclean or impure of any wetland or waters by reason of erosion or
by any waste or other materials discharged or deposited therein.
Any proposed or ongoing action which may result in direct
or indirect physical or chemical impact on a wetland/watercourse,
including but not limited to any regulated activity.
To dig, dredge, suck, bulldoze, dragline, blast or otherwise
excavate or grade, or the act thereof.
Any alteration of physical, chemical or biological properties
of any wetland or waters, including but not limited to change in odor,
color, turbidity or taste.
Any cutting of trees within the boundaries of a wetland or
wetland buffer that is not "clear-cutting," as defined in this section.
A person having special knowledge of the physical, chemical
and biological sciences applicable to the genesis and morphology of
soils as natural bodies and of the methods to describe, classify and
map soil units. This person must possess a minimum of two years'
experience in classifying and mapping soils or comparable field experience
or a master's degree in soil science, and a bachelor's degree
with 30 semester hours (credits) or equivalent in biology, physical
science and earth science, with a minimum of eight semester hours
(credits) 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) in soil science.
The law pursuant to Article 8 of the New York Environmental
Conservation Law, providing for environmental quality review of actions
which may have a significant effect on the environment.
Anything constructed or erected, the use of which requires
location on or in the ground or attachment to something having location
on the ground, including but not limited to buildings, tennis courts
and swimming pools.
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 modifications
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 open space recreational use and
shall not include the division of land by bona fide gift, devise or
inheritance. "Subdivision" shall include the creation of units in
the condominium form of ownership and the creation of leaseholds in
a cooperative.[7]
Any natural or artificial or permanent or intermittent public
or private water body or water segment, such as ponds, lakes, reservoirs,
rivers, streams, brooks or waterways, that are contained within, flow
through or border on the municipality.[8]
Any area which meets one or more of the following criteria:
Lands and waters of the state that meet the definition provided
in § 24-0107, Subdivision 1, of the New York State Freshwater
Wetlands Act (Article 24 and Title 23 of Article 71 of the Environmental
Conservation Law) and have an area of at least 12.4 acres or, if smaller,
have unusual local importance, as determined by the Commissioner pursuant
to § 24-0301, Subdivision 1, of the Act. The approximate
boundaries of such lands and waters are indicated on the official
freshwater wetlands map promulgated by the Commissioner pursuant to
§ 24-0301, Subdivision 5, of the Act, or such a map that
has been amended or adjusted pursuant to § 24-0301, Subdivision
6, of the Act.
All areas that comprise hydric soils and are inundated or saturated
by surface water or groundwater at a frequency and duration sufficient
to support, and which under normal circumstances do support, a prevalence
of hydrophytic vegetation, as defined by the Federal Interagency Committee
for Wetland Delineation, 1989, Federal Manual for Identifying and
Delineating Jurisdictional Wetlands, United States Army Corps of Engineers,
United States Environmental Protection Agency, United States Fish
and Wildlife Service and United States Department of Agriculture Natural
Resources Conservation Service, Washington, D.C., Cooperative Technical
Publication.[9]
[Amended 8-20-1991 by L.L. No. 7-1991]
A specified area surrounding a wetland or watercourse that
is intended to provide some degree of protection to the wetland or
watercourse from human activity and other encroachment associated
with development. The wetland/watercourse buffer shall be subject
to the regulations for wetlands as defined in this chapter and shall
be determined to be the area extending 100 feet horizontally away
from and paralleling the wetland boundary or watercourse edge, or
greater than 100 feet where designated by either the Commissioner
of the Department of Environmental Conservation or the local approval
authority.
[Amended 8-20-1991 by L.L. No. 7-1991]
[1]
Editor's Note: The definition of "dominant(s) or dominance,"
which immediately followed this definition, was repealed 8-20-1991
by L.L. No. 7-1991.
[2]
Editor's Note: The definitions of "facultative species" and
"ferrous iron," which immediately followed this definition, were repealed
8-20-1991 by L.L. No. 7-1991.
[3]
Editor's Note: The definitions of "growing season" and "histosols/organic
soils," which immediately followed this definition, were repealed
8-20-1991 by L.L. No. 7-1991.
[4]
Editor's Note: The definition of "long duration," which immediately
followed this definition, was repealed 8-20-1991 by L.L. No. 7-1991.
[5]
Editor's Note: The definition of "mineral soil," which immediately
followed this definition, was repealed 8-20-1991 by L.L. No. 7-1991.
[6]
Editor's Note: The definitions of "Munsell soil color charts"
and "obligate upland species," which immediately followed this definition,
were repealed 8-20-1991 by L.L. No. 7-1991.
[7]
Editor's Note: The definition of "very long duration," which
immediately followed this definition, was repealed 8-20-1991 by L.L.
No. 7-1991.
[8]
Editor's Note: The definition of "water table," which immediately
followed this definition, was repealed 8-20-1991 by L.L. No. 7-1991.
[9]
Editor's Note: The definitions of "wetland hydrology" and
"wetland plants of the State of New York," which immediately followed
this definition, were repealed 8-20-1991 by L.L. No. 7-1991.
No regulated activity shall be conducted in a wetland/watercourse
or wetland/watercourse buffer without a written permit from the Sleepy
Hollow Planning Board and full compliance with the terms of this chapter
and other applicable regulations. All activities that are not permitted
as-of-right or by permit shall be prohibited.
The following uses shall be permitted as-of-right within a wetland/watercourse
or wetland/watercourse buffer to the extent that they are not prohibited
by any other local law and to the extent that they do not constitute
a pollution or erosion hazard or interfere with proper drainage, and
provided that they do not require structures, grading, fill, draining
or dredging except as authorized by permit:
A.
Normal ground maintenance, including mowing, trimming of vegetation
and removal of dead or diseased vegetation around a residence.
C.
Repair of walkways and walls.
E.
Public health activities, orders and regulations of the Westchester
County Department of Health and/or the New York State Department of
Health for emergencies only.
Regulated activities include all activities within a wetland/watercourse or buffer other than those specified in § 418-7 and may be permitted upon written application to the Sleepy Hollow Planning Board. Regulated activities include but are not limited to:
A.
Placement or construction of any structure.
B.
Any form of draining, dredging, excavation or removal of material,
either directly or indirectly.
C.
Any form of dumping, filling or depositing of material, either directly
or indirectly.
D.
Installation of any service lines or cable conduits.
E.
Introduction of any form of pollution, including but not limited
to the installation of a septic tank, 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.
F.
Alteration or modification of natural features and contours.
G.
Alteration or modification of natural drainage patterns.
H.
Construction of dams, docks or other water control devices, pilings
or bridges, whether or not they change the natural drainage characteristics.
I.
Installation of any pipes or wells.
J.
Clear-cutting of any area of trees.
K.
Removal or cutting of any vegetation except as permitted in § 481-7B.
L.
Deposition or introduction of organic or inorganic chemicals, including
pesticides and fertilizers.
M.
Grazing of one or more horses or other animals, and any agricultural
activity which involves draining or excavation of a wetland, except
as permitted in § 481-7G.
N.
Any other activity that may impair the natural function(s) of a wetland
as described in § 481-1 of this chapter.
A.
No regulated activity shall be conducted without the issuance of
a written permit from the Sleepy Hollow Planning Board. Application
for a permit shall be made in duplicate to the Sleepy Hollow Planning
Board on forms furnished by the Village Clerk.
B.
The Planning Board shall establish a mailing list of all interested
persons and agencies who wish to be notified of such applications.
Upon receipt of the completed application, the Planning Board shall
notify the individuals and agencies, including federal, state and
local agencies having jurisdiction over or an interest in the subject
matter, to provide such individuals and agencies with an opportunity
to comment.
C.
An application shall not be deemed complete until and unless an applicant
has complied fully with the procedures of the State Environmental
Quality Review Act (Article 8 of the State Environmental Conservation
Law). The action of the Planning Board upon any application for a
permit under this chapter shall in all cases, except the case of the
construction of a single residence upon a residential lot, be deemed
a Type 1 action, as that term is defined in the regulations promulgated
by the New York State Department of Environmental Quality Review Act.
In the case of an application for a permit with respect to such single
residence, the Planning Board shall classify said action as provided
in said regulations.
D.
All permits shall expire on completion of the acts specified and,
unless otherwise indicated, shall be valid for a period of one year
from the date of issue. An extension of an original permit may be
granted upon written request of the Planning Board by the original
permit holder or his/her legal agent at least 90 days prior to the
expiration date of the original permit. The Planning Board may require
new hearings if, in its judgment, the original intent of the permit
is altered or extended by the renewal or if the applicant has failed
to abide by the terms of the original permit in any way. The request
for renewal of a permit shall follow the same form and procedure as
the original application, except that the Planning Board shall have
the option of not holding a hearing if the original intent of the
permit is altered or extended in any significant way.
E.
Within five days of its receipt of a completed application for a
permit, the Planning Board 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 Sleepy Hollow. Said notice of application shall
be in a form prescribed by the Planning Board. The notice shall:
(1)
Specify that persons wishing to object to the application should
file a notice of objection by a specified date, together with a statement
of the grounds of objection to the application, with the Planning
Board.
(2)
Specify that the application, including all documents and maps therewith,
is available for public inspection at the office of the Village Clerk.
A.
Any application for a permit which shall be filed with the Planning
Board shall contain the following information:
(1)
The name and address of the owner.
(2)
The street address and Tax Map designation of the property.
(3)
A statement of authority from the owner for any agent making application.
(4)
A statement of the proposed work and purpose thereof and an explanation
why the proposed activity cannot be located at another site, including
an explanation of how the proposed activity is dependent on wetlands
or water-related resources.
(5)
A list of the names of the owners of record of lands adjacent to
the wetland/watercourse or wetland/watercourse buffer in 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.
(6)
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
a scale no less detailed than one inch equals 30 feet, and showing
the following:
(a)
The location of all wetlands/watercourses as determined by a
qualified ecologist/botanist, soil scientist and/or other qualified
expert no earlier than 12 months prior to the date of filing the application.
[Amended 8-20-1991 by L.L. No. 7-1991]
(b)
A description of the vegetative cover of the regulated area,
including dominant species.
(c)
A description of the soil types on site.
(d)
The location of the construction area or area proposed to be
disturbed and its relation to property lines, roads and buildings
within 250 feet and watercourses within 100 feet.
(e)
The exact locations and specifications for all proposed draining,
fill, grading, dredging and vegetation removal, including the amount
computed from cross-sections, and the procedures to be used.
(f)
The location of any well(s) and depth(s) thereof and any disposal
system within 50 feet of area(s) to be disturbed.
(g)
Existing and adjusted 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.
(h)
Details of any drainage system proposed, both for the conduct
of work and after completion thereof, including locations of any point
discharges, artificial inlets or other human-made conveyances which
would discharge into the wetland/watercourse or wetland/watercourse
buffer, and measures proposed to control erosion both during and after
the work.
(i)
Where creation of a lake or pond is proposed, details of the
construction of any dams, embankments, outlets or other water control
devices and analysis of the wetland/watercourse hydrologic system,
including seasonal water fluctuation, inflow/outflow calculations
and subsurface soil, geology and groundwater conditions.
(j)
Where creation of a detention basin is proposed, with or without
excavation, details of the construction of any dams, berms, embankments,
outlets or other water control devices and an analysis of the wetland/watercourse
hydrologic system, including seasonal water fluctuation, inflow/outflow
calculations and subsurface soil, geology and groundwater conditions.
(k)
A completed environmental assessment form as required by the
New York State Environmental Quality Review Act.
(7)
Copies of all applicable county, state or federal permits or permit
applications that are required for such work.
B.
In the case of applications for projects which propose encroachment into the wetland/watercourse buffer only or where the total amount of disturbed area is less than 1/4 acre or whose total cost does not exceed $5,000, the Planning Board may waive the requirements outlined in Subsection A(6), but shall require an application containing the information outlined in Subsection A(1) through (6)(c) and Subsection A(7), as well as a plan clearly showing the scope and details of the project.
C.
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.
D.
An application fee shall be charged according to the fee schedule included at the end of Chapter 200, Fees, and shall be presented at the time the application is filed.
[Amended 1-22-2013 by L.L. No. 1-2013]
E.
All information relating to a permit application, including but not
limited to the application itself, additional required materials or
information, notices, record of hearings, written comments and findings,
shall be maintained on file in the office of the Village Clerk.
F.
The Planning Board, its agents or employees may enter upon any lands
or waters for good cause shown for the purpose of undertaking any
investigation, examination, survey or other activity for the purposes
of this chapter.
A.
The Planning Board shall hold a public hearing on the application at such time as it deems appropriate in order to give the public at least 15 days' notice thereof. It shall publish notice thereof in each of at least two newspapers having a general circulation in Sleepy Hollow and give at least 15 days' notice to each of the persons named in the application pursuant to § 418-10A(5) of the information required therein. Insofar as possible, any public hearing on the application shall be integrated with any public hearing required or otherwise held pursuant to any other law, including the State Environmental Quality Review Act. Any hearing may be held by the Planning Board or by a hearing officer designated by the Board.
B.
All hearings shall be open to the public, and a full and complete record of each hearing shall be made. The record of any hearing shall become part of the permanent record of a permit application as specified in § 418-10E.
C.
Any party may present evidence and testimony at the hearing. At the
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 below.
A.
In granting, denying or conditioning any permit, the Planning Board shall evaluate wetland/watercourse functions and the role of the wetland/watercourse in the hydrologic and ecological systems and shall determine the impact of the proposed activity upon health and safety, rare and endangered species, water quality and additional wetland/watercourse functions listed in § 418-1 of this chapter. In this determination, it shall consider the following factors and shall issue written findings with respect to:
(1)
The impact of the proposed activity and existing and reasonably anticipated similar activities upon neighboring land uses and wetland/watercourse functions as set forth in § 418-1 of this chapter, including but not limited to the:
(a)
Infilling of a wetland/watercourse or other modification of
natural topographic contours.
(b)
Disturbance or destruction of natural flora and fauna.
(c)
Influx of sediments or other materials causing increased water
turbidity and/or substrate aggradation.
(d)
Removal or disturbance of wetland/watercourse soils.
(e)
Reductions in wetland/watercourse water supply.
(f)
Interference with wetland/watercourse circulation.
(g)
Damaging reduction or increase in wetland/watercourse nutrients.
(h)
Influx of toxic chemicals and/or heavy metals.
(i)
Damaging thermal changes in the wetland/watercourse water supply.
(j)
Destruction of natural aesthetic values.
(2)
Any existing wetland/watercourse impact and the cumulative effect
of reasonably anticipated future wetland/watercourse activities in
the wetland/watercourse 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 safety of the proposed activity from flooding, erosion, hurricane
winds, soil limitations and other hazards 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 and local comprehensive land
use plans and regulations.
(7)
The availability of preferable alternative locations on the subject
parcel or, in the case of an activity which cannot be undertaken on
the property without disturbance to a wetland/watercourse, the availability
of other reasonable locations for the activity that could be obtained,
used, expanded or managed at any time during the proposed activity's
planning history, whether or not such locations are now under the
ownership or control of the applicant.
[Amended 8-20-1991 by L.L. No. 7-1991]
B.
The Planning Board shall deny a permit if:
(1)
The proposed activity may threaten public health and safety, result
in fraud, cause nuisances, impair public rights to the enjoyment and
use of public waters, threaten a rare or endangered species, violate
pollution control standards or violate other federal, state or local
regulations;
(2)
It finds that the detriment to the public, measured by the factors
listed in this section, that would occur on issuance of the permit
outweighs the nonmonetary public benefits associated with the activity;
or
(3)
Both the affected landowner and the local government have been notified
by a duly filed notice, in writing, that the state of any agency or
political subdivision of the state is in the process of acquiring
any freshwater wetland or watercourse 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 ban to the permit lapses. If its negotiations
with the applicant are broken off, the state or an 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 ban
to permit lapses.
C.
Preference will be given to activities that must have a shoreline
or wetland/watercourse location in order to function and that will
have as little impact as possible upon the wetland/watercourse buffer.
In general, permission will not be granted for dredging or ditching
solely for the purpose of draining wetlands, controlling mosquitoes,
lagooning, constructing factories, providing spoil and dump sites
or building roadways 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 buffer. All reasonable measures
must be taken to minimize impact upon the wetland or watercourse.
D.
The Planning Board shall require preparation of a mitigation plan by the applicant pursuant to § 418-13 when the applicant has demonstrated that either losses or impacts to the wetland/watercourse buffer are necessary and unavoidable and have been minimized to the maximum extent practicable. For the purposes of this chapter, wetland/watercourse impacts are necessary and unavoidable only if all of the following criteria are satisfied:
(1)
The proposed activity is compatible with the public health and welfare;
(2)
There is no feasible on-site alternative to the proposed activity,
including reduction in density, change in use, revision of road and
lot layout and/or related site planning considerations that could
accomplish the applicant's objectives; and
(3)
There is no feasible alternative to the proposed activity on any
other site that could be obtained, used, expanded or managed at any
time during the proposed activity's planning history that is not a
wetland/watercourse or wetland/watercourse buffer.
[Amended 8-20-1991 by L.L. No. 7-1991]
E.
Waiver. If the area of a wetland/watercourse for which there has been an application for a permit is 1/10 of an acre or less, the Planning Board shall be empowered, upon such conditions as it may deem appropriate, to waive any of the provisions of §§ 418-12 and 418-13 of this chapter in issuing such permit.
[Added 8-20-1991 by L.L. No. 7-1991]
A.
Mitigation measures.
[Amended 8-20-1991 by L.L. No. 7-1991]
(1)
After it has been determined by the Planning Board pursuant to § 418-12D that losses of wetlands/watercourses or buffers are necessary and unavoidable and have been minimized to the maximum extent practicable, the applicant shall develop a mitigation plan which shall specify mitigation measures that provide for mitigation as follows:
(a)
For losses to wetlands: replacement wetlands or enhancement
or restoration of existing wetlands that re-create as nearly as possible
the original wetlands in terms of type, functions and geographic location
and setting and that are larger than, by a ratio of two to one (2:1),
the original wetlands, provided that the ecological impacts associated
with the mitigation are not greater than those associated with the
proposed activity.
(b)
For losses to watercourses: replacement, enhancement or restoration
of the watercourse that re-creates as nearly as possible the disturbed
or lost portion of the original watercourse in terms of type, function
and geographic location and setting, by a ratio of one to one (1:1),
for the disturbed or lost portion of the watercourse, or the preparation
of other mitigation plans acceptable to the approving authority that
serve to replace or enhance the functions of the watercourse affected
by the proposed activity.
(c)
For losses to wetland buffers: enhancement of existing wetland
buffers or enhancement or restoration of existing wetlands, by a ratio
of two to one (2:1), for the area disturbed by the proposed activity
that replaces or enhances the functions of the wetland or wetland
buffer.
(2)
For the purposes of mitigation, losses of wetland/watercourse buffers
will be viewed as losses of wetlands. 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.
B.
Mitigation plans developed to compensate for the loss of wetlands
or wetland buffers shall include the following baseline data:
(1)
Hydrologic data.
(a)
Small projects (losses of two acres): land use history, macrotopography,
general surficial geology and stream-flow measurements, groundwater
levels and groundwater quality.
(b)
Moderate projects (losses of two to 10 acres): data required
for small projects, plus microtopography, bedrock geology, surficial
geology, stream-flow velocity measurements, if appropriate, soil pore
water storage (organic soils) and direct precipitation measurements.
(c)
Large projects (losses of 10 acres): data required for small
and moderate projects, plus water balance analysis (one-year study),
groundwater storage, groundwater flow rates and soil pore water level
and flow (organic soils).
(2)
Soils.
(a)
Small projects: soil profile descriptions, general soil survey
data, bulk density, porosity, hydraulic conductivity, pH, conductivity,
cation exchange capacity, redox potential, total phosphorus, total
nitrogen, nitrate nitrogen and organic carbon.
(b)
Moderate projects: data required for small projects, plus fiber
content (organic soils), phosphorous retention, pore water analysis
(seasonally), alkalinity, exchangeable acidity, seedbank capacity
and soil organisms.
(c)
Large projects: data required for small and moderate projects,
plus clay mineralogy, microbial assessment (seasonally), heavy metals
content, pesticides residues, gas/toxin analysis (seasonally), peat
features and soil temperature regime.
(3)
Vegetation.
(a)
Small projects: areal wetland extent and qualitative measurement
of percent plant cover, plant species list, vegetation cover type,
relative stem density, animal species list, slope, microtopography,
plant vigor, surface water connections, habitat structure, vegetation/open
water ratio and surrounding terrestrial cover type.
(b)
Moderate projects: data for small projects, plus comprehensive
animal species list, potential phosphorous uptake and potential nitrogen
uptake.
(c)
Large projects: data for small and moderate projects, plus quantitative
measurement of stem density, evapotranspiration data and net primary
productivity.
(4)
A monitoring schedule for a specified period of time as agreed to
by the Environmental Conservation Commission.
C.
The Planning Board shall monitor or shall cause to have monitored
projects according to the specifications set forth in the permit to
determine whether the elements of the mitigation plan and permit conditions
have been met and whether the wetland acreage created replaces the
wetland acreage lost. To this end, the Planning Board may contract
with an academic institution, an independent research group or other
qualified professionals at the expense of the applicant or may use
its own staff expertise. The requirements for monitoring shall be
specified in the mitigation plan and shall include but not be limited
to:
(1)
The time period over which compliance monitoring shall occur.
(2)
Field measurements to verify the size and location of the impacted
wetland area and the restored/replacement wetland area.
(3)
The date of completion of the restoration/replacement.
(4)
Field verification of the vegetative, hydrologic and soils criteria
as specified in the mitigation plan and permit.
D.
Any mitigation plan prepared pursuant to this section and accepted
by the Planning Board shall become part of the permit for the application.
A.
Any permit issued pursuant to this chapter may be issued with conditions. Such conditions may be attached as the Planning Board deems necessary, pursuant to § 418-12D, to assure the preservation and protection of affected wetlands/watercourses and to assure compliance with the policy and the provisions of this chapter and the provisions of the Planning Board rules and regulations adopted pursuant to this chapter.
B.
Every permit issued pursuant to this chapter shall be in written
form and shall contain the following conditions:
(1)
Work conducted under a permit shall be open to inspection at any
time, including weekends and holidays, by the Planning Board and Village
Engineer or their designated representative(s).
(2)
The permit shall expire on a specified date.
(3)
The permit holder shall notify the Planning Board of the date on
which the work is to begin at least five days in advance of such date.
(4)
The Planning Board permit shall be prominently displayed at the project
site during the undertaking of the activities authorized by the permit.
C.
The Planning Board shall set forth, in writing, in the file it maintains
regarding a permit application, its findings and reasons for all conditions
attached to any permit. Such 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 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 limitations of vegetation
removal.
(5)
Dedication of easements to protect wetlands/watercourses.
(6)
Erosion control measures.
(7)
Setbacks for structures, fill, deposit of spoil and other activities
from the wetland.
(8)
Modifications in project design to ensure continued water supply
to the wetlands/watercourses and circulation of waters.
(9)
Replanting of wetland/watercourse vegetation and construction of
new wetland/watercourse areas to replace damaged or destroyed areas.
E.
The Planning Board shall cause notice of its denial, issuance or
conditional issuance of a permit to be published in a daily newspaper
having a broad circulation in the area wherein the wetland lies.
F.
In the event that the court finds the action of the Planning Board
constitutes a taking without compensation and the land so regulated
merits protection under this chapter, the court may, at the election
of the Planning Board, either set aside the order or require the Planning
Board of the Village of Sleepy Hollow to request that the Village
Board of Trustees proceed under the condemnation law to acquire the
wetlands/watercourses or such less-than-fee rights therein as have
been taken.
A.
The Planning Board may require that, prior to commencement of work
under any permit issued pursuant to this chapter, the applicant or
permittee shall post a bond in an amount and with surety and conditions
sufficient to secure compliance with the conditions and limitations
set forth in the permit. 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 of the permit and the bond is released by the Planning Board
or a substitute bond is provided. In the event of a breach of any
condition of any such bond, the Planning Board may institute an action
in the courts upon such bond and prosecute the same to judgment and
execution.
B.
The Planning Board 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.
No permit granted pursuant to this chapter shall remove an applicant'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.
The Planning Board may:
A.
Suspend or revoke a permit in the form of a stop-work order 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.
B.
Consult or contract with expert persons or agencies in reviewing
a permit application.
C.
Hold hearings and subpoena witnesses in the exercise of its powers,
functions and duties provided for by this chapter.
A.
Administrative sanctions. Any person who undertakes any wetland or
watercourse activity 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 or any rule
or regulation adopted by the Planning Board pursuant to this chapter,
shall be liable to the Village for a civil penalty of not more than
$5,000 for every such violation. Each consecutive day of the violation
will be considered a separate offense. Such civil penalty may be recovered
in an action brought by the Village at the request and in the name
of the Planning Board in any court of competent jurisdiction. Such
civil penalty may be released or compromised by the Planning Board
and any action commenced to recover the same may be settled and discontinued
by the Planning Board. In addition, the Planning Board shall have
power, following a hearing, to direct the violator to restore the
affected wetland/watercourse 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 designee. Any such order
of the Planning Board shall be enforceable in an action brought in
any court of competent jurisdiction. Any civil penalty or order issued
by the Planning Board pursuant to this subsection shall be reviewable
in a proceeding pursuant to Article 78 of the State Civil Practice
Law and Rules.
B.
Criminal sanctions. Any person who knowingly or willfully violates
an order, permit, rule or regulation of the Planning Board regulating
wetlands/watercourses and buffers 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 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
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. Each offense shall be a separate and distinct offense,
and in the case of continuing offense, each day of continuance thereof
shall be deemed a separate and distinct offense.
The Village is specifically empowered to seek injunctive relief
restraining any violation or threatened violation of any provision
of this chapter and/or compelling the restoration of the affected
wetland or wetland buffer to its condition prior to the violation
of the provisions of this chapter.
A.
Review. Any decision or order of the Planning Board or any officer
or employee thereof made pursuant to or within the scope of this chapter
may be reviewed at the request of any person affected thereby, including
but not limited to any owner of the affected wetland/watercourse or
wetland/watercourse buffer and any resident or citizen of the Village,
by the Board of Trustees, provided that such review is commenced by
the filing with the Village of a notice of review within 30 days after
service of such order or notice or such decision given, as the case
may be.
B.
Judicial review. Any determination, decision or order of the Planning
Board may be judicially reviewed pursuant to Article 78 of the Civil
Practice Law and Rules in the Supreme Court for the County of Westchester
within 30 days after the date of the filing of the determination,
decision or order of such Board with the Clerk of the Village.
A.
This chapter may from time to time be amended 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 becomes available.
B.
Any person may submit, in writing, in a form prescribed by the Planning
Board, a request for a change in the regulations. The request shall
be considered at a public hearing held in accordance with the provisions
of the general statutes not less than 90 days after receipt of the
written request.
Assessors and boards of assessors shall consider wetland/watercourse
regulations in determining the fair market value of land. Any owner
of an undeveloped wetland/watercourse who has dedicated an easement
or entered into a perpetual conservation restriction with the Planning
Board or a nonprofit organization to permanently control some or all
regulated activities in the wetland/watercourse shall be assessed
consistent with those restrictions. Such landowner shall also be exempted
from special assessment on the controlled wetland to defray the cost
of municipal improvements such as sanitary sewers, storm sewers and
water mains.
