[HISTORY: Adopted by the Town Board of the Town of Smithtown 4-21-1970 as L.L. No.
1-1970. Amendments noted where applicable.]
GENERAL REFERENCES
Conservation Board — See Ch. 21.
Department of Environment and Waterways — See Ch. 27.
Beaches and parks — See Ch. 101.
Boat basin and mooring areas — See Ch. 108.
Environmental and coastal quality review — See Ch. 151.
Freshwater wetlands — See Ch. 170.
Shellfish — See Ch. 233.
Water pollution — See Ch. 315.
Waterways — See Ch. 318.
[Amended 7-14-1992 by L.L. No. 4-1992]
This chapter shall be known and may be cited as the "Wetlands
and Surface Waters Law of the Town of Smithtown."
A.
When not inconsistent with the context, words used in the present
tense include the future, words used in the plural number include
the singular number and words used in the singular number include
the plural number. The word "shall" is always mandatory and not merely
directory.
B.
LAMBERT PROJECTION
MATERIAL
OPERATION
PERSON
REMOVE
TOWN
UPLAND
WATERCOURSES
WETLANDS
For the purpose of this chapter, the following terms, phrases, words
and their derivations shall have the meanings given herein:
Lambert Polyconic Conformal Projection, New York State Coordinate
System, Long Island Zone.
Includes soil, sand, gravel, clay, bog and mud.
Removal or deposition operations or a combination of both.
Any person, firm, partnership, association, corporation,
company, organization or legal entity of any kind, including municipal
corporations or governmental agencies or subdivisions thereof.
Includes dig, dredge, suck and bulldoze.
The Town Board of the Town of Smithtown or its successors.
All that land or area above the mean high-water mark.
Any waterway or other body of fresh, brackish or salt water
(having reasonably well-defined banks), including but not limited
to sounds, bays, rivers, creeks, rivulets, lakes, ponds and streams.
Lands generally covered or intermittently covered with water
to a depth of six feet or less with fresh, brackish or salt water,
including but not limited to Thatch Meadows, salt marshes, salt meadows,
marshes, swamps and bogs.
Notwithstanding the prior granting of permission, no person
shall remove from or deposit in the bed of any watercourse or wetland,
nor remove from any watercourse or wetland to deposit on any upland,
privately owned or owned by the Town or any other municipal or governmental
authority, any material without obtaining from the Town Clerk a written
permit therefor, issued upon the order of the Town as hereinafter
provided. This chapter shall not apply to the removal or deposition
of material in connection with the harvesting of shellfish for commercial
purposes.
A permit may be issued upon the written verified application
of the person proposing to remove or cause the removal or proposing
to deposit or cause the deposition of material. An original and 11
conformed copies of the application shall be submitted to the Town
Clerk. Such application shall include the following information:
A.
The name and address of the applicant and the source of the applicant's
right to dredge and/or deposit (e.g., whether the applicant is owner,
lessee, licensee, etc.). In all cases where the applicant is not the
owner, the consent of the owner, duly acknowledged, must be attached.
B.
The purpose of the proposed dredging or deposition.
C.
The amount of material proposed to be removed or deposited.
D.
The description of the area from which removal or in which deposition
is proposed. The description shall be by bearing distance and shall
be based on the Lambert Projection. The north and east coordinates
of the starting point based on the Lambert Projection shall be given.
If approved by the engineer for the Town, the description may be based
on a local coordinate system instead of the Lambert Projection; provided,
however, that the starting point of the description shall be appropriately
referenced to a permanent reference point or monument.
E.
The depth to which such removal or deposition is proposed throughout
the area and the proposed angle of repose of all slopes.
F.
The manner in which the material will be removed and deposited.
G.
Survey maps:
(1)
A survey and topographical map, with contours at one-foot intervals
showing the area from which removal or in which deposition is proposed,
certified by a registered land surveyor or professional engineer,
both licensed by the State of New York. Such survey and topographical
map shall show the soundings of the area from which removal or in
which deposition is proposed. The horizontal control of said survey
shall be based on the Lambert Projection or an approved local coordinate
system. The vertical control for elevations and soundings shall be
based on United States Coast and Geodetic Survey datum.
(2)
A survey and topographical map with contours at one-foot intervals
of the area in which the material removed is to be deposited, certified
by a registered land surveyor or registered professional engineer
licensed by the State of New York. The horizontal control of said
survey shall be based on the Lambert Projection or an approved local
coordinate system. The vertical control for elevations and soundings
shall be based on United States Coast and Geodetic Survey datum.
H.
The name and address of all owners of land within a radius of 200
feet from the perimeter of the area in which removal or deposition
is proposed, as shown on the current Town of Smithtown assessment
roll.
Each application shall be filed with the Town Clerk and accompanied
by an application fee of $100.
[Amended 2-21-1984 by L.L. No. 3-1984]
Upon receipt of the application, the Town Clerk shall forward
such application to the Conservation Board of the Town of Smithtown.
The Conservation Board of the Town of Smithtown shall seek the guidance
of all governmental agencies which may be concerned with the application,
including but not limited to the Water Resources Commission of the
State of New York, the New York State Conservation Department, the
Fish and Wildlife Service of the Department of the Interior and the
Corps of Engineers of the Department of the Army. A copy of the application
shall be forwarded to such agencies for their information and review.
The Board shall review said application and shall hold a public hearing
on such application upon not less than 10 days' notice to be
published in the official newspaper of the Town. In addition, all
owners of lands within a radius of 200 feet from the perimeter of
the area in which removal or deposition is proposed shall be notified
by the applicant of the hearing by certified mail, return receipt
requested, mailed to the address shown on the current Town of Smithtown
assessment roll not less than 10 days before the hearing. An affidavit
to that effect, together with the receipts, shall be filed with the
Board at the time of the hearing. At such public hearing all interested
persons or groups may appear. After the public hearing, the Conservation
Board of the Town of Smithtown shall report within reasonable time
to the Town its findings and make recommendations with respect to
the application for permit.
The Town may adopt a resolution directing the issuance of a permit hereunder for the removal and/or deposition of material if it finds that the proposed removal and/or deposition will not violate the provisions of § 138-14 hereof and that the public interest will not otherwise be adversely affected thereby.
The Town shall, upon the adoption of a resolution directing
the issuance of a permit:
A.
Impose conditions on the manner and extent of the proposed removal
and deposition.
B.
Fix the time by which removal or deposition operations must be commenced
and within which they must be completed.
D.
Require the applicant to file with the Town a performance bond in
an amount and with sureties and in a form to be approved by the Town
conditioned upon compliance with the provisions of this chapter and
with the conditions, if any, imposed in the resolution directing the
issuance of the permit.
E.
Require the payment of an inspection fee in an amount to be fixed
by the Town.
The applicant for a permit hereunder shall, before the issuance
of said permit by the Town Clerk, file with the Town Clerk a bond,
if required, in an amount and with sureties and in a form approved
by the Town Board, conditioned on compliance with the provisions of
this chapter and with the conditions, if any, imposed in the resolution
directing the issuance of the permit, and a certificate that the applicant
has public liability insurance against any liability which may arise
from the removal or deposition of material pursuant to such permit
and covering any and all damage which may occur within three years
after the completion of the operations under such permits, in an amount
of $500,000 for all accidents resulting in bodily injury or death
and for property damage in an amount not less than $100,000 for all
accidents. The applicant shall also submit to the Town Clerk an indemnification
agreement in which the applicant shall agree to assume the defense
of and indemnify and save harmless the Town and its officers and employees
from any and all claims arising out of or connected with the operations
under such permit and from all acts, omissions or negligence on the
part of the applicant, his agents or employees.
Upon the adoption of a resolution directing the issuance of
a permit, the Town Clerk shall issue a permit upon the payment of
a fee of not less than $150 and upon compliance with all provisions
of this chapter or the resolution directing the issuance of the permit.
Such permit shall contain the following statement:
"The validity of this permit is or may be subject to the approval
of other governmental or municipal authorities. The Town accepts no
responsibility in applying for or obtaining such approval. In the
event that such approval is necessary, the holder of this permit may
not commence operations hereunder until such approval has been obtained.
The failure to obtain such approval, when required, prior to the commencement
of operations hereunder shall subject this permit to immediate revocation
upon order of the Town."
The applicant shall pay to the Town such sum as may be fixed by the Town, but in any event not less than $0.35 per cubic yard for all salable soil, sand, gravel or other material removed from the bed of any watercourse or wetland owned by the Town as a result of his operations under such permit, shown by the certifications required by § 138-12 hereof. Such payments shall be made within five days after delivery of the certifications. Final payment shall be made within 30 days after the work under the permit shall have been completed or within 30 days after the date specified by the resolution authorizing the issuance of the permit for the completion of the work, whichever shall occur first. If the Town shall find that the proposed removal of Town land will benefit the Town substantially as a necessary improvement of any area affected thereby, the resolution adopted under § 138-7 hereunder may waive all or a portion of the payments required by this section.
A.
Commencing on the second Friday after the issuance of a permit hereunder,
whether or not operations have commenced, the person to whom such
permit is issued shall furnish once every two weeks certifications
by a registered land surveyor or registered professional engineer
duly licensed by the State of New York of the quantities of material
removed or deposited or, if none has been removed or deposited, a
certification to that effect, and there shall be attached to such
certification a sketch showing the progress of the operations and
any deviation from the terms of such permit. Such reports and certifications
shall be filed with the Conservation Board of the Town of Smithtown.
[Amended 2-21-1984 by L.L. No. 3-1984]
B.
The Town at any time may inspect the area from which material is
being removed and/or the area in which it is being deposited.
The final payment under § 138-11 hereunder shall be accompanied by a certificate by a registered land surveyor or registered professional engineer duly licensed by the State of New York of the amount of material removed and that the removal operations have been in compliance with the provisions of this chapter and the conditions imposed by the resolution directing the issuance of the permit. In computing the amount of material removed, the Town may, in its discretion, accept a certification of the amount of material deposited or stored, as a result of such removal operations, as the equivalent of the amount removed.
All operations under a permit issued pursuant to this chapter
shall be done in such a manner that the removal and/or deposition
of material and the redepositing and storage thereof will neither
undermine, weaken nor deprive of support other lands in the vicinity
nor otherwise adversely affect the watercourses and wetlands of the
Town and the lands abutting nor, unless the permit issued pursuant
hereto shall expressly provide otherwise, substantially change the
course of any channel or the natural movement or flow of any waters
or cause or accelerate the drift of soil, shale, mud or bog, upland
or underwater, nor adversely affect fish, shellfish, wildlife or other
natural resources.
Upon completion of the operations authorized hereunder, the
person to whom the permit has been issued shall submit to the Town
a certificate from a registered land surveyor or registered professional
engineer duly licensed by the State of New York that the work has
been completed in accordance with this chapter and with the resolution
of the Town Board directing the issuance of the permit. A survey and
topographical and hydrographical map shall include soundings of such
area. The survey and topographical map shall show the depth of the
area from which material has been removed and/or in which it has been
deposited and the slopes from which the material has been removed
and/or on which it has been deposited, connecting with adjoining lands.
The horizontal control of said survey shall be based on the Lambert
Projection or an approved local coordinate system. The vertical control
for elevations and soundings shall be based on United States Coast
and Geodetic Survey datum.
If any person to whom a permit shall have been issued hereunder
shall fail at any time to comply with the provisions of this chapter
or with the conditions imposed by the resolution of the Town directing
the issuance of such permit, he shall, upon the direction of the Town,
immediately suspend all operations under such permit for such period
as may be prescribed by the Town. Upon direction of the Town, such
person shall cease all operations and remove all equipment used in
connection therewith, and upon the direction of the Town, such permit
shall be void. The suspension or revocation of such permit shall not
relieve the holder of the permit of any of the obligations thereunder.
[Amended 7-14-1992 by L.L. No. 4-1992]
Any person who shall erect, reconstruct, remove or repair any
structure without having been issued a valid and effective permit
pursuant to this chapter or who shall remove from and/or deposit material
on Town-owned lands in the bed of a watercourse or wetland and any
person who shall cause such material to be removed and/or deposited
without having been issued a valid and effective permit pursuant to
this chapter shall be liable for the payment to the Town of Smithtown
the sum of $1,000 for each day or part thereof during which such removal
or deposition shall take place for the material removed or deposited
during such day, in addition to any penalties prescribed by law and
any other damages for which he may be liable.
[Amended 7-14-1992 by L.L. No. 4-1992]
A.
Any person, firm, association or corporation violating any of the
provisions of any local laws of the Town of Smithtown shall be guilty
of an offense punishable by fine or imprisonment, or both; however,
for the purpose of confirming jurisdiction upon courts and judicial
officers, such violations shall be deemed to be misdemeanors, and
for such purposes only all provisions of law relating to misdemeanors
shall apply to such violations. Notwithstanding the foregoing, any
person, firm, association or corporation violating any provision of
any local law of the Town of Smithtown shall be subject to a penalty
in a sum of $500 for the first such violation and $1,000 for the second
such violation and in a sum not exceeding $5,000 for any subsequent
violations. Said penalties to be recoverable in a civil action in
the name of the Town of Smithtown as damages.
B.
A separate offense shall be deemed committed upon each day during
or on which a violation occurs or continues.
C.
In addition to any penalties which may be imposed pursuant to this
chapter, any person who violates any provision of this chapter or
any conditions imposed upon the issuance of a permit pursuant to this
chapter may be ordered to restore the premises to such suitable conditions
as the Town Board may require. In the event that such person refuses
or fails to restore such real property in conformity with the requirements
of the Town Board, the Town may undertake and perform said restoration.
In the event that the Town of Smithtown is compelled to restore such
real property, all costs incurred incidental to such restoration shall
be assessed against the real property in question.
A permit issued hereunder may be subject to the approval of
the Corps of Army Engineers and may be subject to the issuance of
permits by appropriate federal and state agencies.
No municipality shall be required to pay any fee required by
this chapter. No municipality shall be required to submit a performance
bond as required by this chapter; provided, however, that if such
municipality contracts with a private firm to perform the proposed
removal and/or deposition, suitable evidence must be furnished to
the Town of the existence of the performance bond. The Town of Smithtown
shall be exempted from all provisions of this chapter.
A.
No dam or impoundment structure, including any artificial construction, temporary or permanent, nor any dock, pier, wharf or other structure, temporary or permanent, used as a landing place on waters, nor any bulkhead shall be erected, reconstructed, removed or repaired by any person in or across lands underwater without a permit issued pursuant to Subsection B hereof.
[Amended 7-14-1992 by L.L. No. 4-1992]
B.
Permit. A person desiring to construct, remove, reconstruct or repair
such dam or impoundment structure or such dock, pier, wharf or bulkhead
shall apply to the Town for a permit. An original and 11 conformed
copies of the application for the permit shall be submitted to the
Town Clerk.
[Amended 7-14-1992 by L.L. No. 4-1992]
(2)
Such application shall be accompanied by a complete set of plans
and specifications prepared by a registered professional engineer
licensed by the State of New York. The location of the proposed structure
shall be clearly indicated on the plans by reference to either the
Lambert Projection or, if approved by the Engineer for the Town, a
local coordinate system; provided, however, that the starting point
of such description shall be appropriately referenced to a permanent
reference point or monument.
C.
Hearing. The Town Clerk shall forward such application to the Conservation Board of the Town of Smithtown. The fee for filing of such application shall be $50. The proceedings before the Conservation Board of the Town of Smithtown shall be conducted in accordance with § 138-6 of this chapter.
[Amended 2-21-1984 by L.L. No. 3-1984]
D.
Issuance of permit. The Town Board may adopt a resolution directing the issuance of a permit for the construction of a structure under this chapter if it finds that the proposed structure will not violate the provisions of § 138-14 hereof. The permit shall contain a statement similar to that provided by § 138-10 of this chapter. Before the applicant may begin to commence construction, he must apply for and receive a permit from the Building Department of the Town. A performance bond, however, shall not be required in the event that the estimated cost of the improvement is less than $5,000. An annual permit shall not be required for seasonal docks after the issuance of the original permit, unless the person owning or maintaining such seasonal docks changes the size, dimension or location of such dock. However, the Conservation Board of the Town of Smithtown may, in its discretion, provide that the permit is effective for a specified period of years and may require renewal at the expiration thereof.
[Amended 2-21-1984 by L.L. No. 3-1984]
E.
Waiver of certain requirements. Where, in the judgment of the Town
Board of the Town of Smithtown, a project is proposed within the regulatory
provisions of this chapter, the enforcement of which would create
a hardship because of the minimal size of the contemplated project,
the Town Board may adopt a resolution waiving or lowering the requirements
of this chapter.
