[HISTORY: Comes from L.L.
No. 1-1968, adopted 1-30-1968, effective 2-5-1968.]
GENERAL REFERENCES
Boats and seaplanes — See Ch. 155.
Clams, oysters or worms — See Ch. 157.
Dredging — See Ch. 159.
Marinas and docks — See Ch. 163.
Shellfish — See Ch. 166.
Structures in waterways — See Ch. 168.
Swimming from Town docks — See Ch. 169.
[1]
Editor's Note: The original Section 1 of this Chapter
recited the legislative intent as follows:
"In this modern fast-moving world of rapidly advanced nuclear,
mechanical and space technology, the Town Board of the Town of Hempstead
is keenly aware of the possible destruction of natural resources in
the name of progress. In mankind's history, too many species
of flora and fauna which so enhance the beauty of the earth have disappeared
from its face in the avalanche of ever-advancing environmental and
scientific change. The people of the Town of Hempstead have been richly
endowed in the priceless natural resources comprising our wetlands
and underwater lands and the flora and fauna nurtured thereby. It
is the intent of this Board to forever guarantee to the people of
the Town of Hempstead the sanctity of such natural resources for their
benefit and enjoyment and for the benefit and enjoyment of generations
yet unborn. It is for such reasons that the following provisions are
enacted."
Except as otherwise herein provided, all of the tidal wetlands
and underwater lands owned by the Town of Hempstead are hereby dedicated
to marine recreation and conservation purposes and are hereby declared
to be held in the public trust for the purposes and upon the conditions
hereinafter set forth, and no such lands shall be sold and conveyed
by the Town of Hempstead unless such conveyance be authorized by local
law subject to a mandatory referendum as in the next section provided.
Any local law adopted pursuant to § 164-1 hereof shall be submitted for the approval of the electors of the Town at a general election of state or local government officers held not less than 60 days after the adoption thereof, unless such local law provides for its submission for approval of such electors at a special Town election, and such local law shall become operative as prescribed therein only if approved at such election by the affirmative vote of a majority of the qualified electors of the Town of Hempstead voting upon the proposition.
Management and control of the wetlands and underwater lands
referred to herein is hereby vested in the Department of Conservation
and Waterways of the Town of Hempstead, subject to the overall direction
and control of the Town Board and subject to any agreement or agreements
entered into between the Town and the appropriate department or departments
of the State of New York.
The lands held pursuant hereto shall be used for the following
purposes and no others:
A.
The promotion of natural propagation and maintenance of desirable
species in ecological balance in the Town wetlands and waterways.
B.
The promotion and maintenance of sound management practices for such
propagation and maintenance in such wetlands and waterways, having
regard to ecological factors, the compatibility of production and
harvesting of fish and wildlife crops with other necessary and desirable
land uses, the improvement of fish and wildlife resources for recreational
purposes, the requirements for public safety and the need for protection
against abuse of the privileges of hunting, fishing or trapping.
C.
The preservation, maintenance and improvement of channels, creeks,
canals, bays and other waterways of the Town in a manner to meet the
needs of boatmen but consistent with sound conservation practices,
any material removed pursuant to this section to be used for public
purposes only.
D.
The promotion and maintenance of areas for public marine recreation
purposes consistent with sound conservation practices.
E.
The construction and maintenance of structures in waterways for the
use of abutting private property owners to permit proper docking of
boats and access to navigable channels, provided that any and all
required municipal permits be obtained.
F.
The continuance of leases for private recreational purposes held
by bay house owners is based on the Hempstead Town Board's desire
to preserve the cultural and historic character of the Town of Hempstead
bays. These leases are to be held by one Town of Hempstead resident,
or as per current leasing agreements, for private, recreational purposes
and the lessee shall be the principal user/inhabitant. The list of
lessees shall be as of the 31st day of December 2003; provided, however,
that no sublease shall be valid but that an assignment, acceptable
to the Commissioner of the Department of Conservation and Waterways,
to the spouse, sibling, child or grandchild of the lessee or a qualified
caretaker as provided herein shall be valid. A qualified caretaker
is a person who, in the judgment of the Commissioner of the Department
of Conservation and Waterways, has actively provided for the care
and maintenance of the leased premises for a period not less than
three years from the date of an application by the lessee or the lessee's
legal representative for an assignment of the lease to such caretaker.
In any case in which a lease has been cancelled or has not been renewed,
the Commissioner of the Department of Conservation and Waterways may
grant a lease to a person who, in his judgment, has acted in the manner
of a qualified caretaker of the premises for a three-year period immediately
preceding an application brought by such caretaker for status as a
lessee of the premises. However, where there is no clear successor
to the lease, the Commissioner of the Department of Conservation and
Waterways, after establishing a suitable list of candidates in the
manner established herein and acceptable to the Commissioner of the
Department of Conservation and Waterways, may issue a one-year lease
for three successive years in order to establish caretakership. Continuance
of the one-year lease shall be predicated upon the terms outlined
by the commissioner of the Department of Conservation and Waterways
prior to the issuance of the first one-year lease period and before
the issuance of each successive yearly lease. Therefore, at the discretion
of the Commissioner of the Department of Conservation and Waterways
any one-year lease may be terminated and all structures, including
the improvements and remaining portion of the lease forfeited, and
the Commissioner of the Department of Conservation and Waterways may
award a first-year lease to the next candidate on the established
list. In any case, no new buildings shall be permitted to be constructed
on any leased premises except as noted, and only those bay houses
which were in existence on the last day of December 2003 shall be
maintained on any leased premises.
[Amended 2-28-1978 by L.L. No. 25-1978, effective 3-6-1978; 1-13-1981 by L.L. No.
7-1981, effective 1-1981; 2-7-1989 by L.L. No. 10-1989, effective 3-6-1989; 1-11-1994 by L.L. No. 4-1994, effective 1-18-1994; 5-20-2003 by L.L. No.
51-2003, effective 6-9-2003]
G.
Private and commercial marine purposes accessory to the use of abutting
upland pursuant to leases duly executed by the Town of Hempstead and
consistent with the conservation, management, principles and purposes
hereinbefore set forth.
The Director of the Department of Conservation and Waterways
is hereby authorized and empowered, subject to approval by the Town
Board, by resolution duly adopted, to establish such rules and regulations[1] for the use and enjoyment by the public of the lands described
herein, including but not limited to the designation of areas for
specific types of marine recreational use, the designation of specified
areas as wildlife sanctuaries or management areas, the designation
of areas within which no discharge of firearms will be permitted,
the designation of areas within which no water skiing will be permitted,
the establishment of shellfish management areas and prohibition of
taking shellfish therein and any and all other rules and regulations
consistent with the management of the wetlands, underwater lands and
waterways included herein, provided that such rules and regulations
are not inconsistent with the provisions of law then existing.
Any rule or regulation established pursuant to § 164-5 hereof shall be effective 10 days after publication thereof in a newspaper published or of general circulation in the Town of Hempstead.
[Amended 12-13-2016 by L.L. No. 114-2016, effective 12-27-2016]
Notwithstanding any provisions of this chapter to the contrary,
any person or persons, corporation or other legal entity committing
an offense against this chapter or any section or provision thereof,
or any regulation adopted thereunder, including but not limited to
owners, lessees or occupants of any wetlands or underwater lands that
are under the jurisdiction of this chapter and/or any person or persons,
corporation or other legal entity actually performing construction
or installation of structures or doing any other act in violation
of this chapter, its provisions, or the rules promulgated thereunder,
is guilty of a violation punishable by a fine not exceeding $1,000
or imprisonment for a period not exceeding 15 days for each such offense,
or by both such fine and imprisonment. Each violator shall be jointly
and severally liable for each violation, and each day that the violation
shall exist shall be considered a separate and distinct offense.
The other provisions of this chapter notwithstanding, nothing
herein contained shall be construed to prevent the Town Board from
entering into an appropriate agreement with the owner of any upland
abutting upon and adjacent to a tidal waterway, to fix or align a
proper boundary line between the land of such abutting owner and the
land of the Town of Hempstead, including the necessary exchanges of
land attendant thereon; provided, however, that any such agreement
shall be approved, subject to a permissive referendum as provided
in the Town Law of the State of New York.
[Amended 4-27-1976 by L.L. No. 32-1976, effective 5-3-1976]
Upon the recommendation of the Commissioner of the Department of Conservation and Waterways pursuant to the provisions of § 164-5 of the Code of the Town of Hempstead, the following rules and regulations are hereby promulgated by the Town Board of the Town of Hempstead.
A.
Dumping or depositing of certain materials.
[Added 10-26-1971, effective 11-15-1971; amended 5-15-1973]
(1)
It shall be unlawful and a violation punishable by a fine not exceeding
$250 or by imprisonment for a period not exceeding 15 days, or by
both such fine and imprisonment, for any person or persons, firm,
business establishment, company, partnership, corporation and the
officers and stockholders thereof to dump or deposit or to suffer
and permit the dumping or depositing of any dirt, sand, fill, gravel,
rock(s), earth, filth, waste, rubbish, petroleum or petroleum products
in any waterway under the jurisdiction of the Town of Hempstead.
(2)
Bay Constables and other peace officers are authorized to issue summonses
and swear to appropriate informations for the enforcement of this
rule and regulation.
(3)
This rule and regulation shall become effective 10 days after publication
in a newspaper of general circulation in the Town of Hempstead.
(4)
The Commissioner of the Department of Conservation and Waterways
is hereby authorized to post the provisions of this rule and regulation,
or pertinent excerpts, or an abstract of the contents thereof, at
prominent places throughout the public wetlands.
B.
Rules and regulations concerning beach erosion control.
[Added 12-4-1973, effective 12-24-1973]
(1)
Preamble. The Town Board of the Town of Hempstead has long since
determined that the Island of Long Beach and the other barrier islands
fronting on the Atlantic Ocean and on the inlets and channels abutting
said islands, all within the Town of Hempstead, are subject to substantial
erosion and accretion of sand by the natural action of the tides and
winds, that the Town of Hempstead, the County of Nassau, the State
of New York and the United States of America have done considerable
public work at great expense to stabilize the coast of the Atlantic
Ocean in the Town, but that it appears that the natural balance between
such erosion and accretion has been substantially disturbed by the
indiscriminate removal by various persons of sand from said barrier
islands, a great part of which has blown off the beaches thereof upon
the upland thereof, and that the continuance of such indiscriminate
removal will probably result in extensive and dangerous unnatural
erosion of said islands, and that it is necessary, therefor, in the
interests of the public safety and welfare, to take action to abate
or mitigate such unnatural erosion.
(2)
Every owner or occupant of real property on the barrier island of
Long Beach, abutting the high-water mark of the Atlantic Ocean within
the unincorporated area of the Town of Hempstead, shall during the
months of October through April, both inclusive, in every year, erect
and maintain on his property, to and within 50 feet of the mean highwater
mark, a fence not less than four feet high composed of vertical slats
(of the type commonly known as a "snow fence" or "sand fence"), sufficient
to catch and hold sand drifting or blowing inshore from the beach.
Such fencing shall be erected in an appropriate direction or as prescribed
by the Department of Conservation and Waterways to ensure the capture
of the greatest amount of sand.
(3)
Under no circumstances shall any person, private or municipal corporation,
partnership or association excavate, remove or permit or suffer the
excavation or removal of any sand from the beach or from any sand
dune being a part of the barrier island of Long Beach and other unincorporated
areas of the Town of Hempstead lying between Jones Inlet and East
Rockaway Inlet on the Atlantic Ocean.
(4)
The provisions of these rules and regulations shall not apply to
any excavation necessary for the construction, erection or installation
of a lawful structure of improvement under a permit issued pursuant
to a Town of Hempstead ordinance, nor to the removal of sand for any
necessary public use as may be recommended by the Commissioner of
the Department of Conservation and Waterways.
(5)
An offense against any of the foregoing rules and regulations shall
constitute a violation punishable by a fine not exceeding $250 or
by imprisonment for a period not exceeding 15 days, or by both such
fine and imprisonment.
C.
Rules and regulations governing wildlife refuge areas or sanctuaries.
Wildlife refuge areas or sanctuaries shall be deemed those areas designated
by the Town Board in Resolution No. 994-1964 and Resolution No. 1238-1975,
and shall hereinafter be referred to as "sanctuaries.
[Added 4-27-1976 by L.L. No. 32-1976, effective 5-3-1976]
(1)
Alcoholic beverages. A person shall not bring ale, beer, wine or
other spirits in a keg, case, can, bottle or other container into
any sanctuary, unless authorized to do so by the Town Board or Commissioner.
(2)
Animals. No domesticated animals shall be permitted in any sanctuary,
unless so authorized by the Town Board or Commissioner. No person
owning or having custody of any animal shall cause or permit the animal
to enter any sanctuary.
(3)
Camping. A person shall not camp, erect or maintain a tent or shelter
of any kind in any sanctuary without first obtaining written permission
therefor from the Town Board or Commissioner.
(4)
Disorderly conduct. No person shall disobey a lawful order of a Town
of Hempstead law enforcement officer or any person employed in the
Department of Conservation and Waterways in a supervisory capacity,
or the directions of any Department sign; throw stones or other missiles;
interfere with, encumber, obstruct or render dangerous any drive,
road, path, walk or area of a sanctuary: climb upon any wall, fence,
shelter or other structure not intended as climbing apparatus; enter
or leave any sanctuary, except at established entranceways or exits;
introduce, carry or fire any fireworks; engage in, instigate, aid
or encourage a contention or fight; assault any person; or make excessive
noise which would create a nuisance.
(5)
Fire. A person shall not kindle, build, maintain or use a fire anywhere
within any sanctuary, except as may be designated or approved by the
Town Board or Commissioner. A person shall not throw away or discard
any lighted match, cigar, cigarette or other lighted object. Such
objects shall be deposited in suitable receptacles.
(6)
Fishing. Fishing is prohibited within any sanctuary and from the
shoreline, except as may be designated or approved by the Town Board
or Commissioner.
(7)
Hunting and trapping. Hunting or trapping wildlife in any sanctuary
is prohibited.
(8)
Games. The following activities are prohibited in any sanctuary:
throwing or using any type of ball, bean bag, frisbee, knife, missile
or other object; playing any ball game; flying any model aircraft
of any size; engaging in kite flying or model boating; riding bicycles,
scooters, go-carts, motor bikes or motorcycles; roller skating; skateboarding;
and engaging in archery.
(9)
Firearms. All firearms are prohibited in any sanctuary. Prohibition
will include firearms, as defined by Article 265 of the Penal Law,
as well as all rifles, BB guns or any type of firearm or other such
device or instrumentality which may create a hazard to person or property,
or which may cause a nuisance or discomfort to any person.
(10)
Picnicking. Picnicking is prohibited in any sanctuary.
(11)
Opening and closing. A sanctuary shall be opened and closed
at the time and hour designated therefor by the Town Board or Commissioner;
except that the Commissioner is authorized to open and close any such
sanctuary, in his sole discretion, for emergency, health or safety
reasons. A person shall not use the sanctuary at times other than
those designated in accordance with the times posted thereat.
(12)
Landing of airborne vehicles. A person shall not voluntarily
land any airborne vehicle, object or apparatus in any sanctuary.
(13)
Protection of property. A person shall not deface, destroy or
tamper with any drive, path or walk; take up, remove or carry away
any tree, shrub, turf or other material; remove, deface or destroy
any structure, building or any appurtenances or any other property
or equipment, real or personal, owned by the Town or others under
the jurisdiction and control of the Town Board or Commissioner, in
any sanctuary.
(14)
Collecting scientific specimens. A person shall not remove any
plant, vegetation, animal, bird or fish specimen from any sanctuary,
except as may be approved by the Town Board or Commissioner.
(15)
Use of sanctuary. The use of sanctuaries shall be restricted
to activities consistent with the purpose of a nature study area.
A person under the age of 14 years shall not be admitted unless accompanied
by an adult who shall assume full responsibility for his or her safety
and conduct.
(16)
Loss, damage or theft. The Town will not be responsible for
loss, damage or theft of motor vehicles, bicycles or other personal
property brought into any sanctuary. Persons checking clothing and
parking motor vehicles or bicycles, pursuant to the rules and regulations
in force at any sanctuary, do so at their own risk and without any
liability on the part of the Town.
(17)
Litter. A person shall not discard or in any manner discharge
refuse, garbage, rubbish or waste into or on any sanctuary.
D.
Prohibition against the operation of motor vehicles, airboats and
other all-terrain vehicles within the tidal wetland areas.
[Added 3-8-1977 by L.L. No. 24-1977, effective 3-11-1977]
(1)
It shall be unlawful and an infringement against this chapter for
any person to operate any motor vehicles, including airboats and other
all-terrain vehicles, within a tidal wetland, except as shall be authorized
by the Commissioner of the Department of Conservation and Waterways
in carrying out wetlands management and maintenance programs.
(2)
It shall be unlawful and an infringement against this chapter for
any person to operate a boat propelled by motor within a salt marsh,
an intertidal marsh or high marsh, except by duly authorized personnel
of the Department of Conservation and Waterways in carrying out wetlands
management and maintenance programs.
