[HISTORY: Adopted by the Board of Trustees of the Village
of Hillburn 12-13-2006 by L.L. No. 2-2006. Amendments noted where
applicable.]
This chapter shall be known as "The Wetlands and Stream Protection
Law of the Village of Hillburn."
A.
The Board of Trustees finds and declares it to be the public policy
of the Village in furtherance of the "Water Resources" section of
the Comprehensive Plan of the Village to preserve, protect and conserve
its wetlands, water bodies, and watercourses and the benefits derived
therefrom; to prevent their despoliation and destruction and to regulate
the use and development thereof to secure the natural benefits of
wetlands, water bodies and watercourses consistent with the general
welfare and beneficial physical, economic and social development of
the Village. In this connection, the Board of Trustees finds as follows:
(1)
Freshwater wetlands are invaluable resources that provide many benefits
including water quality protection, flood and erosion control, fish
and wildlife habitats, groundwater recharge, and opportunities for
recreation and education.
(2)
The preservation and maintenance of wetlands, water bodies, and watercourses
in an undisturbed and natural condition constitute important physical,
ecological, social, aesthetic, recreational and economic assets necessary
to promote the health, safety, and general welfare of present and
future residents of the Village and of downstream drainage areas.
(3)
Flooding in areas of the Village aggravated or caused by the loss
of wetlands or alteration of watercourses or water bodies has serious
effects upon natural ecosystems and presents hazards to health, safety,
welfare and property of the residents of the Village.
(4)
Since acts on wetlands, water bodies, and watercourses in one location
affect persons and property in other locations, wetland protection
and water conservation are matters of concern to the entire Village.
The establishment of preservation, protection and conservation practices
is essential to the public health, safety and welfare of the residents
of the Village.
B.
It is the intent of this chapter to implement the Freshwater Wetlands
Act of the State of New York as presently contained in Article 24
of the Environmental Conservation Law, as the same may be amended
from time to time, to the extent that said Freshwater Wetlands Act
applies to property within the Village of Hillburn, and to promote
the public purposes identified therein and in this section by providing
for the protection, preservation, proper maintenance and use of the
Village's wetlands, water bodies, and watercourses by preventing
or minimizing erosion due to flooding and stormwater runoff, by maintaining
the natural groundwater supplies, preserving and protecting the purity,
utility, water retention capability, ecological functions, recreational
usefulness and natural beauty of all wetlands, water bodies, watercourses
and other related features of the terrain and by providing and protecting
appropriate habitats for natural wildlife.
For the purpose of this chapter, wetlands are defined as all
lands and waters within the Village of Hillburn, including but not
limited to any such lands and waters hereafter designated on the New
York State Freshwater Wetlands Maps or the National Wetland Inventory
(NWI) Maps which have a contiguous area of at least 1/10 acre and
which contain any of the following:
A.
Lands and submerged lands commonly called marshes, swamps and bogs,
whether flooded at all times, flooded only seasonally or having a
water table during at least three consecutive months of the year within
six inches of the ground surface of supporting aquatic or semi-aquatic
vegetation of the types listed in § 24-0107(1)(a) of Article
24 of the Environmental Conservation Law.
B.
Lands and submerged lands containing remnants of any vegetation that
is not aquatic or semi-aquatic that has died because of wet conditions
over a sufficiently long period, provided that such wet conditions
do not exceed a maximum seasonal water depth of six feet and provided
that such conditions can be expected to persist indefinitely, barring
human intervention.
E.
Lands and submerged lands containing poorly drained soils, as defined
by the United States Department of Agriculture Natural Resources Conservation
Service (NRCS)[1].
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(Note: Figure III-5 of the Comprehensive Plan illustrates the
general location of watercourses and wetlands. References should also
be made to the official maps of the regulatory agencies.)
|
[1]
Editor's Note: Formerly, Soil Conservation Service (SCS).
Except as provided in § 240-5 of this chapter, it shall be unlawful to conduct, directly or indirectly, any of the following activities upon any wetland, water body or watercourse or within 100 feet of the boundary of any wetland, water body or riverbank unless a permit is obtained from the Planning Board pursuant to the requirements of this chapter.
B.
Activities subject to regulation under this chapter shall include
the following:
(1)
Any form of draining, dredging, excavation or removal of material,
except removal of debris or refuse.
(2)
Any form of depositing of any material such as but not limited to
soil, rock, debris, concrete, garbage, chemicals, etc.
(3)
Erecting any building or structure of any kind, roads, paved areas
or driveways; the driving of pilings or placing of any other obstructions
within a regulated area, whether or not they change the ebb and flow
of the water.
(4)
Installing a septic tank, running a storm sewer outfall, discharging
sewage treatment effluent or other liquid waste into or so as to drain
into any wetland, water body or watercourse; drilling and digging
of wells; installation of any pipe or conduit.
(5)
The use of any chemicals, dyes, fertilizers, herbicides or similar
materials.
(6)
Creating an increase or decrease in the flow, velocity or volume
of water in any watercourse or water body, excluding customary seasonal
raising and/or lowering of said watercourse or water body.
(7)
Creating a diversion of water flow on any watercourse or water body.
(8)
Introducing any influents of high thermal content, such that the
same are capable of causing deleterious ecological effect.
(9)
Clear-cutting at once or over time within a regulated wetland or
in a regulated area adjacent to a wetland, watercourse or water body.
These actions shall be reviewed by the Village Engineer to determine
if such acts affect the prevailing surface water runoff conditions,
directly or indirectly.
The following activities are permitted by right within or adjoining
any wetland, water body or watercourse, except where the Planning
Board submits written notification to the property owner that it is
assuming jurisdiction over the activity for the purpose of assuring
that the intent of this section is not violated:
A.
The depositing or removal of the natural products of the wetlands,
water bodies or watercourses by fishing, agriculture, hunting or trapping
where otherwise legally permitted.
B.
Outdoor recreation activity that does not materially alter the natural
state of the land or require construction, including use of field
trails for nature study, hiking or horseback riding, swimming and
boating, where otherwise legally permitted.
C.
Grazing, farming and harvesting of crops where otherwise legally permitted; provided, however, that any tillage of soil shall leave an undisturbed strip not less than six feet wide at the edge of any wetland, water body or watercourse to prevent erosion. With respect to any properties designated on the New York State Freshwater Wetlands Maps or the National Wetland Inventory (NWI) maps, the activities of farmers and other landowners in grazing and watering livestock, making reasonable use of water resources, harvesting natural products of the wetlands, selectively cutting brush and timber, draining land or wetlands for growing agricultural products and otherwise engaging in the use of wetlands or other land for growing agricultural products shall be excluded from regulated activities insofar as federal and state regulations apply and shall not require a permit under § 240-4 of this chapter, where otherwise regulated, except that structures not required for the enhancement or maintenance or the agricultural productivity of the land and the methods to be employed are subject to this chapter.
D.
Gardening where otherwise legally permitted; provided, however, that
any tillage of soil shall leave an undisturbed strip not less than
six feet wide at the edge of any wetland, water body, or watercourse
to prevent erosion.
E.
Operation and maintenance of such dams, retaining walls, terraces,
sluices, culverts or other water control structures or devices as
legally existing on the effective date of this section.
F.
Public health activities, as exemplified by orders and regulations
of the Rockland County Department of Health. The Department of Health
shall notify the Planning Board in writing of the proposed activity
it will undertake.
G.
Any actual and ongoing emergency activity, as defined by the Board
of Trustees, which is immediately necessary for the protection and
preservation of life or property or the protection or preservation
of natural resource values.
H.
Any activities regulated by this chapter that are located within
200 feet of a single-family detached residence or within 100 feet
of other buildings are exempt from the provisions of this chapter.
A.
Application for permits and information required. Any person proposing to conduct or cause to be conducted a regulated activity specified in § 240-4 of this chapter upon any wetland, water body or watercourse shall file seven copies of an application for a permit with the Planning Board as provided in this section. Such application shall include the following information:
(1)
Name and address of the applicant and the applicant's agent,
if any, and whether the applicant is owner, lessee, licensee, etc.
If the applicant is not the owner, the written consent of the owner
must be attached.
(2)
Street address and tax map designation of the subject property.
(3)
A detailed description of the specific purpose, nature and scope
of the activity proposed.
(4)
A map showing the area of wetland, water body or watercourse directly
affected.
(5)
A topographic and perimeter survey, hydrological computation, engineering
studies and other factual or scientific data and reports as deemed
necessary by the Planning Board and Village Engineer to permit the
Board to arrive at a proper determination.
(6)
In the case of applications affecting water retention capability,
water flow or other drainage characteristics of any wetland, water
body or watercourse, the Planning Board and Village Engineer may require
the inclusion of a statement of the area of upstream and downstream
watersheds, impact analysis and information as to rainfall intensity
in the vicinity for not less than a one-hundred-year storm, together
with approximate runoff coefficients to determine the capacity and
size of any channel sections, pipes or waterway openings, together
with plans for any necessary bridges, culverts, stormwater or pipe
drains that, in the opinion of the Planning Board and Village Engineer,
are needed to arrive at a proper determination on the application,
consistent with the purposes of this chapter.
(7)
A description of the existing conditions of the site on which the
aquatic resource or resources is or are located.
(8)
A description of the aquatic resource or resources in which the activity
is proposed to take place.
(9)
A description and analysis of the functions of the aquatic resource
or resources for groundwater recharge, groundwater discharge, stormwater
management, flood flow alteration, sediment stabilization, nutrient
removal, habitat for flora and fauna, and recreational uses.
(10)
A description and analysis of the impact or impacts that the
proposed activity will have on the aquatic resource or resources,
including the magnitude of the impact or impacts, the duration of
the impact or impacts, including but not limited to a statement as
to whether the duration is temporary, short-term, long-term or permanent,
whether the impact or impacts are adverse to the functioning of the
aquatic resource or resources.
(11)
A description and analysis of mitigation available to remedy
negative impacts to the extent that such negative impacts are identified.
(12)
Such other information as may be submitted to the Planning Board
and Village Engineer by the applicant, the public or other governmental
agencies, to the extent that such information is relevant to the approval
standards contained in this section.
(13)
A long environmental assessment form, Part 1, with adequate
supporting narrative to allow the Planning Board and Village Engineer
to fully evaluate the environmental impact of the proposal under the
provisions of the State Environmental Quality Review Act (SEQRA).
(14)
The applicant shall request a field determination of the affected area by the Village Engineer prior to preparing mapping required in Subsection A(4). The Village Engineer shall submit a written report to the Planning Board on this determination. The Village Engineer may employ a wetlands specialist for this purpose, the cost of which shall be passed on to the applicant.
B.
Public hearing. No sooner than 30 days and not later than 60 days after the receipt of a complete application and publication of notice of application as required herein, the Planning Board shall hold a public hearing on an application submitted pursuant to this chapter. A complete application shall include all of the information required in § 240-6A of this chapter. The Planning Board shall cause notice of such hearing to be published in a local newspaper at least 10 days prior to the date set for such hearing. All owners of record within 500 feet of the perimeter of the property shall be notified of the hearing by certified mail, return receipt requested, not less than 15 days prior to the date set for such hearing. The applicant shall be responsible for the mailing of such notices and shall file with the Planning Board an affidavit of mailing at or prior to the public hearing. All applications, maps and documents relating thereto shall be open for public inspection at the office of the Village Clerk. At such hearing, any person or persons filing a request for a hearing or a timely notice of appearance may appear and be heard.
C.
Planning Board action. Within 75 days of the date the complete application
is submitted or within 45 days of the date of any public hearing which
may be conducted on said application, whichever period is shorter,
the Planning Board shall render a decision to approve, approve with
modifications, or disapprove the issuance of a permit for the proposed
activity. The decision of the Planning Board shall be made by written
resolution stating the findings and reasons for such decision. The
decision of the Planning Board shall be preceded by the completion
of the SEQR process.
A.
The applicant shall have the burden of demonstrating that the proposed
activity will be in accord with the policies and provisions of this
chapter and the policies of the Hillburn Comprehensive Plan.
B.
In granting, denying or limiting any permit, the Planning Board 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 functions of the wetlands
and the benefits derived therefrom as set forth in this section, irrespective
of political boundaries, and shall make findings based on the following
criteria:
(1)
The environmental impact of the proposed action;
(2)
The alternatives to the proposed action;
(3)
Irreversible and irretrievable commitments of resources that would
be involved in the proposed activity;
(4)
The character and degree of injury to or interference with the safety,
health or the reasonable use of property that is caused or threatened;
(5)
The suitability or unsuitability of such activity to the area for
which it is proposed;
(6)
The effect of the proposed activity with reference to the protection
or enhancement of several functions of wetlands, water bodies and
watercourses;
(7)
The availability of preferable alternative locations on the subject
parcel or of the proposed action;
(8)
The availability of mitigation measures that could feasibly be added
to the plan or proposed action;
(9)
The extent to which the exercise of property rights and the public
benefit derived from such use may outweigh or justify the possible
degradation of the wetland, water body or watercourse, the interference
with the exercise of other property rights and the impairment or endangerment
of the public health, safety or welfare of the Village's residents;
and
(10)
Permits will be issued by the Planning Board pursuant to this
chapter only if the Board shall make findings warranting the grant
of such permit on the basis of the considerations set forth in this
subsection and that such permit is consistent with the policies and
provisions of this chapter.
C.
The Planning Board may grant a permit subject to such terms and conditions as it shall reasonably impose upon findings that such activity is not contrary to the purposes of § 240-2 of this chapter. Said Board may also, in its discretion, permit any activity otherwise prohibited by this chapter to be carried out, except with respect to property designated on the New York State Freshwater Wetlands Maps or National Wetland Inventory maps, or otherwise regulated by Rockland County, New York, or a federal agency, provided that the Planning Board determines after investigation that to prohibit the activity would cause undue hardship to the property owner.
D.
Permits will be issued by the Planning Board only if the Board shall
find that:
(1)
The proposed regulated activity is consistent with the policy of
this chapter.
(2)
The proposed regulated activity is consistent with the land use regulations
governing wetlands, water bodies and watercourses applicable in the
Village of Hillburn.
(3)
The proposed regulated activity is compatible with the public health,
safety and welfare of the Village's residents.
(4)
The applicant has demonstrated that there is no practical alternative
for the proposed regulated activity.
(5)
The proposed regulated activity minimizes the degradation to or loss
of any part of the designated wetland, water body or watercourse or
its regulated areas and minimizes any adverse impacts on the functions
and benefits that said wetland, water body and watercourse provide.
(6)
The proposed activities must also be in compliance with the standards
set forth in the federal regulations and in the New York State Freshwater
Wetlands Regulations. [6 NYCRR § 665.7(e) and (g)].
(7)
Notwithstanding any other provisions herein, duly filed notice, in
writing, that the State of New York or any agency or governmental
subdivision thereof is in the process of acquiring any wetlands by
negotiation or condemnation shall be sufficient basis for denial of
any permit.
E.
The Planning Board may include as a condition for issuing a permit
that wetland protection techniques be employed, including mitigation
measures, such as, but not limited to, the construction of dry rock
walls along the edge of wetlands, wetland buffers, or other locations
intended to demarcate wetlands, or other protective measures prior
to or as part of developing a site. The technique selected must ensure
adequate recharge to the wetland and protection of its natural functions.
F.
In the event that significant adverse impacts on the functioning
of the aquatic resource or resources are identified, the applicant
or the Planning Board, in the form of conditions, may propose mitigation.
Without limiting the generality of the term, "mitigation" may include
relocation of aquatic resources, in whole or in part; substitution
of alternative aquatic resources, in whole or in part; or replacement
of aquatic resources, in whole or in part, whether on the same parcel
or another parcel in the Village.
G.
In granting a permit, the Planning Board may limit the same or impose
conditions or limitations designed to carry out the public policy
set forth in this chapter and the Comprehensive Plan of the Village
of Hillburn. The Planning Board may require surety in an amount and
with conditions satisfactory to it securing to the State of New York
or the Village of Hillburn, as the case may be, compliance with the
conditions and limitations set forth in the permit. The Village Engineer
may suspend or revoke a permit if he finds that the applicant has
not complied with any of the conditions or limitations set forth in
the permit or has exceeded the scope of the activity as set forth
in the application.
Review of the determination of the Planning Board shall be,
within a period of 30 days after the filing thereof, pursuant to the
provisions of Title 11 of Article 24 of the Environmental Conservation
Law of the State of New York or pursuant to the provisions of Article
78 of the Civil Practice Law and Rules with respect to the properties
designated on the New York State Freshwater Wetlands Maps or the National
Wetlands Inventory or otherwise regulated by New York State.
All applications for a wetlands permit shall be accompanied
by a fee in accordance with the fee schedule adopted by the Board
of Trustees.
A.
The requirements of this chapter relating to a separate application
shall not apply to any work shown on construction drawings or improvement
plans for subdivision or site plans submitted to the Planning Board.
The regulatory provisions of this chapter shall apply.
B.
Where this chapter is less or more protective of the environment
than the Environmental Conservation Law of the State of New York or
any local law or ordinance of Rockland County or the Village of Hillburn,
the law or ordinance that is more protective of the environment shall
prevail.
The Village Engineer shall issue and post notices of violations
of this chapter. In addition, by resolution, the Board of Trustees
may direct the Village Engineer to make such inspection and reports,
initiate and take such court proceedings, and perform all other actions
as required by the Board of Trustees as may be necessary to enforce
this chapter or to invoke penalties for its violation.
(Note: The Village Attorney should advise whether the Planning
Board should be involved with enforcement and penalties.) Pursuant
to Title 23 of Article 71 of the Environmental Conservation Law,[1] the following penalties shall apply:
A.
Any person who violates, disobeys or disregards any provision of
this chapter shall be liable for a civil penalty not to exceed $3,000
for every such violation. Before assessment of the civil penalty,
the alleged violator shall be afforded a hearing or opportunity to
be heard before the Planning Board, upon due notice and with rights
to specification of the charges and representation by counsel.
B.
The Planning Board shall also have the power, following a hearing,
to direct a violator to cease violation of this chapter and, under
the Board's supervision, to satisfactorily restore the affected
wetland, water body or 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.
C.
Any civil penalty or order issued by the Planning Board shall be
reviewable pursuant to Article 78 of the Civil Practice Law and Rules.
D.
In addition to the above civil fine, any person who violates any
provision of this chapter shall be guilty of a violation pursuant
to the Penal Law, punishable by a fine of not less than $500 nor more
than $1,000. For a second and each subsequent offense, the violator
shall be guilty of a misdemeanor punishable by a fine of not less
that $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. 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. Instead of or in addition to these punishments,
any offender may be punished by being ordered by the court to restore
the affected wetland, water body or 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 restoration
shall be effected under the supervision of the Commissioner of the
Department of Environmental Conservation or of the Village. 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.
E.
The Planning Board shall have the right to seek equitable relief
to restrain any violation or threatened violation of any provision
of this chapter.
[1]
Editor's Note: See § 71-2303 of Environmental Conservation
Law for current penalties.
