[Amended 1-26-1982; 3-13-1984; 4-16-1985; 3-7-1989; 9-14-1993; 6-22-1999 by L.L. No. 4-1999; 3-9-2004 by L.L. No. 7-2004; 1-29-2008 by L.L. No.
3-2008]
A.
BOAT or VESSEL
BUSHEL
CERTIFIED AREAS
CHURNING
COMMERCIAL PERMIT
COMMERCIAL PERMIT HOLDER
COMMERCIAL PURPOSE
DAYLIGHT HOURS
DIGGER'S PERMIT
ENFORCEMENT OFFICER
LEASED UNDERWATER LANDS
MANAGEMENT AREA
OWNER
PERSONAL PERMIT
POT-HAULER
QUALIFIED BIDDER
RESIDENT
SHELLFISH
SHELLFISH CONTAINER
SHELLFISH TAGS
STANDARDIZED CONTAINER
STANDARD MEASURE
TAKING
TOWN
TOWN LAND UNDERWATER
UNCERTIFIED AREAS
(1)
(2)
In this chapter, unless the content requires otherwise, the following
terms shall have the meanings ascribed to them:
Includes every description of water craft, floating structure,
or other contrivance, whether or not seaworthy, used or capable of
being used as a means of transportation on water, whether self-propelled
or otherwise.
That amount of unopened shellfish which will fill a bag or
standardized container, said bag or container to be a standard measure
bushel and stamped with the wording "Town of Oyster Bay" on the bag
or container, or fill to the level top of such other shellfish container
as the Town may designate, by resolution, duly adopted and posted
by the Town Clerk. Where the limit on shellfish taken is a bushel
or more pursuant to this chapter, all permittees must use the standard
measure bushel bag or standardized container to contain such shellfish
as are in his or her possession. Failure to do so shall constitute
a violation of this chapter.
Those shellfish lands and the produce thereon designated
or certified by the Department of Environmental Conservation of the
State of New York to be in such sanitary condition that shellfish
thereon may be taken for use as food.
The agitation, disturbance and/or displacement of bottom
soil by artificial means, including the use of any mechanical device
or outboard motor.
A permit issued to persons to take shellfish from Town lands
under water for commercial purposes.
A person who has an Oyster Bay Town commercial permit as
prescribed by this chapter.
The taking of shellfish for any use or purpose other than
for food consumption by the person so taking or by such person's family
or household.
The time between sunrise and sunset as officially recorded.
A permit issued by the NYSDEC to allow the commercial taking
of shellfish.
An officer designated by the Town to enforce this chapter,
including, but not limited to, a Nassau County Police Officer, Town
Code Enforcement Officer, Town Bay Constable. Harbormaster, or Town
Environmental Conservation Officer.
Lands underwater leased by the Town for shellfish cultivation
and harvesting.
An area designated or set aside by the Town Board for the
conservation, preservation, protection, seeding, rehabilitation and/or
growth of shellfish, or to promote the health, safety and welfare
of the residents of the Town of Oyster Bay.
Includes the person under whose name the vessel was last
registered with the United States Coast Guard or the New York State
Department of Motor Vehicles, and in any case the last known owner
or the person who claims lawful possession of such vessel be virtue
of legal title or equitable interest therein which entitles him/her
to such possession.
A permit issued to persons to take shellfish from Town lands
under water for personal or family use.
Pot-hauler shall mean a mechanically operated device, including,
but not limited to, a winch, reel, windlass or capstan, which is used
to haul or retrieve a clam rake from the water and return it to the
harvest vessel.
A person who resides in the Town of Oyster Bay or a domestic
corporation of which its principal place of business and a majority
of its shareholders reside in the Town of Oyster Bay.
A person who has, and has had for the preceding six months,
a principal place of abode and domicile in, and who actually resides
within, the Town of Oyster Bay. Domiciled shall include children of
those domiciled while such children live temporarily elsewhere pursuing
education or are serving in the armed forces.
Includes all varieties and types of oysters, scallops, hard
clams, soft clams, razor clams, steamers, crabs, shrimp, lobsters,
mussels, skimmer or surf clams, periwinkles, whelks and conch.
Any receptacle for holding, storing, packing, enclosing,
receiving, transporting or shipping when containing shellfish.
Waterproof labels to be attached to bushel bags or other
authorized and standardized containers, identifying the name of the
shellfish harvester, the harvest date, the harvest area, the type
and quantity of shellfish and such other information as may be required.
Receptacle, the construction material and style of which
to be determined by the Commissioner of the Department of Environmental
Resources which when filled level to the brim with shellfish will
constitute one standard measure bushel and used for the transport
and measurement of shellfish.
A bushel with a volume of 2,150.42 cubic inches or otherwise
in agreement with criteria set forth in the Agriculture and Markets
Law of the State of New York Article 16, Section 176.
Includes the removal or actual taking of and/or assisting
with the removal or actual taking of shellfish, by any means from
Town land or Town waters, and all lesser acts such as attempting to
remove or take shellfish, disrupting or disturbing of shellfish, with
or without the use of any implement, aid or device commonly used to
take shellfish, regardless of whether they result in taking or not,
and includes every attempt to take. Taking shellfish for commercial
purposes shall be presumed where shellfish are taken in quantities
in excess of 1/4 bushel in any one day.
Town of Oyster Bay.
Includes all lands, lands underwater within the Town, below
the mean high-water line, owned by the Town, except such lands leased
by the Town to others for shellfish cultivation.
An area designated by the NYSDEC as an area in such unsanitary
condition that shellfish therein may not be taken for use as food.
A conditional shellfish area restricted during specific seasons
or periods of weather conditions as designated by the NYSDEC and/or
the Commissioner of the Department of Environmental Resources of the
Town of Oyster Bay.
B.
Word usage. When not inconsistent with the context, the present tense
shall include the future, and words used in the plural shall include
the singular and vice versa. Furthermore, a masculine pronoun shall
include the feminine. "Shall" is mandatory; "may" is permissive.
C.
Ambiguity. Terms not defined in this article, or terms found to be
ambiguous or improperly defined in this section, shall be defined
by the Environmental Conservation Law of the State of New York or
appropriate rules and regulations pursuant thereto.
A.
No person shall take shellfish unless such person has obtained the
permit therefor as hereinafter provided by this article.
B.
No person shall take shellfish for commercial purposes unless such person has obtained a commercial permit therefor as hereinafter provided by this article, or a license issued pursuant to Article VI.
[Amended 11-16-2021 by L.L. No. 15-2021]
C.
Any person holding permits in both the Town of Oyster Bay and another
municipality having residency requirements shall immediately forfeit
his/her Town of Oyster Bay permit, which declared null and void by
notice of the Town Clerk.
D.
No person shall use, display or possess a permit issued to another
person.
E.
The number of commercial permits issued by the Town of Oyster Bay
in any one year shall be limited to 110 permits, in accordance with
the appropriate section of this chapter. Those having held a permit
in good standing the previous permit year may constitute a preapproved
list and shall have 30 days prior to the renewal date set forth in
this chapter to reapply for such permit before new applicants shall
be considered for receipt of a permit. Such preapproval shall be subject
to any restrictions set forth in this chapter, such as violations
of this or any other chapters of the Code of the Town of Oyster Bay.
The number of commercial permits issued by the Town in any one year
may be adjusted and set, on a yearly basis, by Town Board resolution
and proper publication of notice thereof.
F.
Permits will be issued to individuals only.
A.
Application; information required.
(1)
An application for a personal or commercial permit shall be submitted
to the Town Clerk by sworn statement, in writing, in the form prescribed
and issued by the Town Clerk, and shall include but not be limited
to:
(a)
The applicant's name.
(b)
The applicant's address with street and number, if any.
(c)
The applicant's citizenship, age, sex, weight, height, color
of eyes and hair, and signature.
(d)
The applicant's domicile shall be shown to be within the Town
of Oyster Bay.
(e)
A description of applicant's real property owned in the Town
of Oyster Bay with street number, if any, and with Tax Map number.
(f)
Every applicant less than 18 years of age shall have the application
cosigned by a parent or guardian.
(g)
An applicant for a permit who knowingly makes a false statement
or withholds information on an application shall be subject to any
and all of the following:
(2)
Each applicant for a personal permit shall submit to the Town Clerk
for inspection two of the following:
(a)
A valid New York State driver's license and vehicle registration
in the name of the applicant, setting forth an address located within
the boundaries of the Town of Oyster Bay;
(b)
A validated tax receipt stub for the current year for any taxable
property located within the boundaries of the Town of Oyster Bay;
(c)
A valid voter registration card indicating applicant's place
of residence as being within the boundaries of the Town of Oyster
Bay; or
(d)
A copy of a lease of property within the Town of Oyster Bay,
the term of which shall be a minimum of one year. Said personal permit
shall expire with the expiration of the lease or March 31, whichever
is earlier;
(e)
All other information requested and deemed necessary by the
Town Clerk in the exercise of his/her administrative and investigative
functions.
(3)
Each applicant for a commercial permit shall submit to the Town Clerk
for inspection all of the following:
(a)
A valid New York State driver's license, vehicle registration
in the name of the applicant or a valid New York nondriver's identification
card, setting forth an address located within the boundaries of the
Town of Oyster Bay;
(b)
A validated tax receipt stub for the current year for any taxable
property located within the boundaries of the Town of Oyster Bay or
a copy of a lease of property within the Town of Oyster Bay, the term
of which shall be a minimum of one year. Said commercial permit shall
expire with the expiration of the lease or March 31, whichever is
earlier;
(c)
A valid voter registration card indicating applicant's place
of residence as being within the boundaries of the Town of Oyster
Bay or an affidavit, in the form prescribed and issued by the Town
Clerk, by applicant that he or she is not a registered voter in any
jurisdiction and that he or she is a resident of the Town of Oyster
Bay;
(d)
A valid New York State shellfish digger's permit issued by NYSDEC;
(e)
Two full-face photographs of the applicant taken within two
months prior to the application date;
(f)
All other information requested and deemed necessary by the
Town Clerk in the exercise of his/her administrative and investigative
functions;
(g)
Before issuing a commercial permit, the Town Clerk shall be
satisfied as to the identity of the applicant and may require the
applicant to submit proof that he is a resident and has resided in
the Town of Oyster Bay for six months; and
(h)
Any commercial permit application shall contain the description
of any boat or vessel which may be used by the applicant, including
the New York State registration numbers for such boat or vessel.
B.
Form of permit; evidence of permit.
(1)
Permits shall be on the form prescribed by the Town Clerk and contain the matters set forth in Subsection A above, with a photograph of the permit holder affixed thereto. The original application shall be filed in the Town Clerk's office and the permit shall be issued by the Town Clerk's Office. Each permit issued shall contain the exact date of issuance.
(2)
Any person engaged in taking shellfish or shellfish predators from
Town lands underwater shall locate and exhibit his permit and shellfish
gauge so that they shall be immediately available to any enforcement
officer. Failure to do so shall be presumptive evidence that such
person does not possess a shellfish permit.
C.
Immediately upon any changes in information required by this section,
the permit holder shall notify the Town Clerk's office of said changes
in writing. Failure to notify the Town Clerk's office of any changes
in required information may result in suspension or revocation of
any permit issued under this chapter.
D.
A person whose permit, identification card or display sticker is
lost or stolen shall report same to the Town Clerk's office immediately
and shall obtain a duplicate permit, identification card or display
sticker from the Town Clerk's office. A fee of $5 shall be due for
each such duplicate.
A.
A resident of the Town of Oyster Bay may obtain a personal permit
for the taking of shellfish from Town land underwater upon application
to the Town Clerk, authorizing such permit holder to harvest shellfish
for his personal or family use. A personal permit holder shall not
harvest shellfish in excess of 1/4 standard measure bushel in any
one day.
B.
A resident under 14 years of age shall not be required to obtain
a personal permit. Such resident under 14 years of age may harvest
shellfish for his personal or family use in an amount which shall
not exceed 1/4 bushel in any one day.
C.
The personal permit fee shall be $5 of which 50% of the set fee shall
be used for the seeding of shellfish beds, the transfer of shellfish
from uncertified waters to certified waters, the development and implementation
of a bay management program and for practical research projects to
improve shellfishing in Town waters. The Town Board may, by resolution,
set and from time to time adjust the fee to be paid for the personal
permit.
A.
Any person over the age of 16 who is a resident of the Town and shall
have resided in the Town for at least six months before the time of
his/her application may obtain a commercial permit for taking shellfish
and/or for assisting with taking shellfish upon making proper application
therefor to the Town Clerk. Any person between the ages of 14 and
16 who is a resident of the Town may obtain a commercial permit for
the taking of shellfish upon making proper application therefor and
upon the presentation of an employment certificate or permit issued
in accordance with the Education law to the Town Clerk. No person
under the age of 14 shall be eligible for a commercial permit for
the taking of shellfish.
B.
The commercial fee shall be $400 of which 50% of the set fee shall
be used for the seeding of shellfish beds, the transfer of shellfish
from uncertified waters to certified waters, the development and implementation
of a bay management program and for practical research projects to
improve shellfishing in Town waters.
C.
The Town Board may, by resolution, set and from time to time adjust
the fee to be paid for the commercial permit.
D.
At the discretion of the Commissioner of the Department of Environmental
Resources, commercial permit holders shall be required to participate
in water quality improvement and/or educational programs, as designated
and determined by said Commissioner, for up to 12 hours per license
year.
Residents 60 years or older may be granted a permanent lifetime
personal permit after paying an initial fee of $5.
[Amended 3-12-2013 by L.L. No. 2-2013]
A.
With the exception of senior citizen personal permits as provided for in § 196-9, permits shall be valid from July 1 the year of issuance and shall expire on the last day of June of the next ensuing year, unless sooner voided, suspended or revoked in accordance with this chapter.
B.
As set
forth above in this chapter, those commercial permit holders constituting
a preapproved list shall have 30 days prior to the renewal date of
July 1 to reapply for such commercial permit before new applicants
shall be considered for receipt of a commercial permit.
C.
A permit
shall expire immediately when the person to whom it is issued ceases
to be a resident.
D.
Any permit
set to expire on March 31, 2013 shall be deemed to be in full force
and effect up to and including June 30, 2013.
A.
Commercial permits issued pursuant to this chapter shall become void if the holder thereof ceases to be a resident or taxpayer of the Town of Oyster Bay. If the holder thereof is convicted of a violation of this chapter, the court shall enter upon the permit the date of conviction and penalty imposed. Any shellfish permit shall be suspended at the discretion of the court for a period not to exceed 30 days from the date of conviction. Any shellfish permit shall be automatically suspended for a period of six months from the date of conviction upon the second conviction for a violation of this chapter within a period of 12 months from the date of the first conviction. Any shellfish permit shall be automatically revoked for a period of five years upon the third conviction for a violation of this chapter within a period of 18 months from the date of the first conviction. Nothing in this section shall be construed as overriding or limiting the powers of the Licensing Commissioner as set forth in Chapter 147 of this Code, nor the rights of licensees as set forth in Chapter 147 of this Code.
B.
A permit shall not survive the permittee.
C.
A permit shall be automatically suspended or revoked upon the suspension
or revocation by the NYSDEC of a like permit. The period of suspension
or revocation shall be for the same duration as that of the New York
State permit.
D.
At the time it revokes or suspends a permit, the court shall remove
the permit from the holder and deliver the same to the Town Clerk
with the date of conviction and the length of any revocation imposed
hereunder. The Town Clerk shall not restore a revoked permit or issue
a new permit during the period of revocation.
Permits issued pursuant to this chapter shall not be transferable.
Upon the issuance of a permit pursuant to this article, the
Town Clerk shall issue to the permit holder an identification card
which bears a photograph of the permit holder. Any person engaged
in taking shellfish and/or assisting with taking shellfish shall display
his identification card in a conspicuous place upon his person, and
failure to do so shall be prima facie evidence that such person has
not obtained such permit. In the case of a commercial permit, the
Town Clerk shall also issue a commercial permit sticker which shall
be affixed to the front of the hull of the boat used by the permit
holder for shellfishing whenever such boat is used for shellfishing
in Town waters. Such sticker shall be conspicuously affixed on the
port side in as high a position above the water line as possible and
shall be located no further back than three feet from the front of
the bow.
Shellfish shall not be taken between sunset and sunrise during
any season.
A.
No hard clams (Mercenaria mercenaria) measuring less than one inch
in thickness measured at right angles to the shell hinge shall be
taken from land underwater. All hard clams taken which are less than
one inch in thickness shall be returned immediately to the land underwater
from which they were taken. A commercial permit holder shall not take
in excess of 10 bushels of hard clams from Town land underwater in
any one day. Allowable limits on the taking of hard clams may be adjusted
and set, on a yearly basis, by Town Board resolution and proper publication
of notice thereof.
B.
No soft or steamer clams (Mya arenaria) less than 1 1/2 inches
in length, as measured on the longest diameter, shall be taken from
land underwater. All soft clams taken which are less than 1 1/2
inches in length shall be returned immediately to the land underwater
from which they were taken. A commercial permit holder shall not take
in excess of five bushels of soft or steamer clams from Town land
underwater in any one day. Allowable limits on the taking of soft
or steamer clams may be adjusted and set, on a yearly basis, by Town
Board resolution and proper publication of notice thereof.
C.
No oysters (Ostrea virginica) under the size of five inches shall
be taken from Town land underwater. The length of the oyster added
to its width shall determine the size thereof. All oysters taken which
are less than five inches in size shall be returned immediately to
the Town land underwater from which they were taken. A commercial
permit holder shall not take in excess of three bushels of oysters
from Town land underwater in any one day. Oyster shells taken from
Town land underwater shall be returned to the water within 10 minutes
after being taken. Allowable limits on the taking of oysters may be
adjusted and set, on a yearly basis, by Town Board resolution and
proper publication of notice thereof.
D.
Bay scallops (Pecten irradians) may be taken only during the period
from the third Monday in September to March 31, both inclusive. Bay
scallops shall not be taken on Sundays by use of a dredge or other
device operated by power. Only bay scallops having an annual growth
line or measured not less than 2 1/4 inches from the middle of
the hinge to the middle of the bill may be taken. All bay scallops
which may not be taken pursuant to these provisions shall be immediately
returned alive to the water. Scallops shall be culled when taken.
A commercial permit holder shall not take in excess of five bushels
of bay scallops from Town land underwater in any one day. Allowable
limits on the taking of bay scallops may be adjusted and set, on a
yearly basis, by Town Board resolution and proper publication of notice
thereof.
E.
No bushel, package or container shall exceed 3% of shellfish which
may not be taken. Such 3% shall be determined by the measurement of
any bushel, or other package or container of different measurement
of clams taken from the catch or in the possession of the person taking
or possessing such clams. Each bushel, or other package or container
of different measurement containing an excess of 3% of clams which
may not be taken determined by count, shall constitute a separate
violation of this provision.
F.
No person shall possess shellfish for commercial purposes unless
they are enclosed in a standard measure bushel bag or other standardized
and authorized container with a complete and accurate shellfish tag
attached.
G.
Commercial shellfishing of soft shell clams is permitted in less
than three feet of water in areas specifically designated by the Commissioner
of the Department of Environmental Resources of the Town of Oyster
Bay, from time to time. Commercial harvesting in said specifically
designated areas is permitted between the months of September and
May, inclusive.
H.
Shellfish shall be culled and/or sorted as to size in the immediate
area from which they are taken and as soon as possible after they
are taken. All shellfish taken which do not comply with the provisions
of this article shall be immediately returned alive to the water.
I.
No person shall take shellfish from Town land underwater leased or
licensed by the Town to others for shellfish cultivation.
[Amended 11-16-2021 by L.L. No. 15-2021]
J.
No person shall take, interfere with or otherwise disturb shellfish
possessed, planted or cultivated by another.
K.
No person shall sell or otherwise transfer shellfish for commercial
purposes to a person who has not obtained a commercial buyer's permit
or NYSDEC permit authorizing the person to whom it issued to deal
with shellfish for commercial purposes.
L.
No person having had a shellfish permit suspended or revoked by any
municipality shall engage in the taking of shellfish from Town lands
underwater at any time during the period of such suspension or revocation.
Except as expressly authorized by the Town Board, it shall be
unlawful to take shellfish from waters designated as uncertified by
the Department of Environmental Conservation of the State of New York.
A map of uncertified waters shall be on file in the office of the
Town Clerk.
A holder of a commercial permit may only take shellfish from
Town land underwater where the depth of the water is greater than
three feet at mean low tide.
The Town Board may set aside as a management area, Town lands
underwater for the conservation, transplantation, preservation, seeding
and rehabilitation of shellfish. Any area so set aside shall come
under the direct supervision of the Commissioner of the Department
of Environmental Resources of the Town of Oyster Bay. No person shall
take, interfere with or otherwise disturb shellfish within an area
designated as a management area.
A.
An uncertified area shall be a management area.
B.
A description of each management area and all prohibitions, restrictions
and regulations with regards to the taking of shellfish from a management
area shall be posted in the office of the Town Clerk.
C.
Determinations by Commissioner.
(1)
The Commissioner of the Department of Environmental Resources is
authorized to prohibit and restrict the removal of shellfish from
any management area. In making a determination as to the prohibition
or restriction of the removal of any shellfish from a management area
the Commissioner of the Department of Environmental Resources shall,
among other things, give due consideration to the following:
(a)
Whether or not the shellfish have been sufficiently purified
to be suitable as food for human consumption.
(b)
Whether or not the first spawning period has passed for the
shellfish in the management area.
(c)
Whether a minimum quantity of shellfish is available within
the shellfish area for spawning until such time as desired quantities
of shellfish are maintained.
(2)
Whenever the Commissioner of the Department of Environmental Resources
has made a determination after giving due consideration to the conditions
prescribed in this section, he may open the management area with freedom
of access for harvest by holders of shellfish permits and other persons
duly authorized to use the management area.
D.
The Commissioner of the Department of Environmental Resources shall
mark a management area with appropriate monuments, stakes or boundary
markers.
E.
No person shall willfully injure or remove any signs, monuments,
stakes or boundary markers of any kind placed for the purpose of delineating
or locating a management area. The Commissioner of the Department
of Environmental Resources may authorize the removal of any sign,
monument, stake or boundary marker.
A.
Oysters and mussels shall be taken by hand, tongs or rakes without
power from Town land underwater.
B.
No implement or device shall be used in taking hard clams from Town
lands underwater, except.
C.
No wire netting or other foreign substances shall be used between
the teeth or bows of rakes or tongs herein authorized for the taking
of hard clams. The use of implements or devices other than tongs and
rakes as described above by any person while engaged in the taking
of hard clams shall be presumptive evidence of a violation of this
chapter.
D.
Soft clams may be taken by implements commonly known as "shovels,"
"forms" and "hoes" which are operated only by hand.
E.
Bay scallops may only be taken from Town lands underwater by means
of nets, tongs, rakes and scallop scrapes. A scallop scrape or device
which does not penetrate the bottom so as to interfere with or disturb
clams. A scallop scrape may not exceed 36 inches at the opening at
the mouth and must be brought aboard by hand power without the use
of a mechanical device.
F.
No dredge, scrape or other device operated by power or by boats propelled by motor or other mechanical means may be used for the taking of shellfish from Town lands underwater except as provided for in Subsection E above for the taking of bay scallops.
G.
A pot-hauler device may only be used on board a vessel to assist
in hauling or retrieving a clam rake from the water in the area north
of the geographic line connecting the most seaward point of Plum Point
to the most seaward point of Cooper's Bluff provided that the basket
attached to the clam rake shall not exceed 26 inches in width.
H.
Any permit holder who has had his or her permit suspended and/or
revoked for any reason is prohibited from being aboard a vessel used
in the taking of shellfish for the purpose of assisting another in
said taking.
I.
Endorsed vessels.
(1)
Upon application to the Town Clerk on forms furnished by the Town
Clerk, a commercial permit may be endorsed for use on a vessel, in
which case such permit may authorize all persons on board such vessel,
to engage in the taking of shellfish, including the culling, sorting
and tagging of such shellfish. Each application for vessel endorsement
shall include a copy of one of the following documents as proof of
vessel length: the certificate of documentation for the vessel issued
by the United States government, or the registration for the vessel
issued by New York State.
(2)
The fee for endorsing a commercial permit to a vessel shall be $50.
Such fee shall be in addition to the commercial permit fee provided
for in this chapter. The Town Board may, by resolution, set and from
time to time adjust the fee to be paid for the endorsement.
(3)
Not more than one rake, tong or other shellfish harvesting device
shall be used for the taking of shellfish at any given time pursuant
to a commercial permit that has been endorsed to a vessel.
(4)
A commercial permit which has been endorsed to a vessel shall not
cover any person whose commercial permit has been suspended or revoked.
(5)
The holder of a commercial permit which has been endorsed to a vessel
shall remain on the vessel at all times.
(6)
An endorsed vessel and any authorized person(s) thereon shall not
be deemed permit holder(s) under this chapter by virtue of such vessel
endorsement.
(7)
The holder of a commercial permit which has been endorsed to a vessel
shall be liable for all violations of this chapter that occur on such
vessel.
(8)
If the holder of a commercial permit which has been endorsed to a
vessel is a corporation, the operator of such vessel shall possess
a separate commercial permit issued in the operators name, and such
operator shall be liable for all violations of this chapter that occur
on such vessel.
(9)
A commercial permit shall not be endorsed to more than one vessel
at any one time.
(10)
The holder of a commercial permit which has been endorsed to
a vessel shall maintain a daily log indicating the names and addresses
of individuals covered by such permit for each day the vessel is used
taking shellfish, and shall make such log available to any Enforcement
Officer or Town employee.
The Town shall have power:
A.
To search without a warrant any boat or vehicle of any kind, any
box, locker, basket, crate, fish well, package or any other container
of any nature and the contents of any building other than a dwelling
whenever there is probable cause to believe that any provision of
this chapter for the protection of shellfish crustacea has been or
is being violated and to use such force as may be necessary for the
purpose of examination and search.
B.
To seize as evidence without a warrant any shellfish crustacea or
parts thereof, whenever there is probable cause to believe it is possessed
or transported in violation of this chapter or there is evidence of
illegal taking or its possessed or transported under circumstances
making the possession or transportation prima facie evidence of illegal
taking.
C.
To seize as evidence without warrant:
(1)
Any rakes, tongs, dredges or devices other than a boat or vehicle
found which may have been or could have been used for the taking of
shellfish in violation of this chapter. This subsection does not limit
any power or seizure pursuant to warrant.
(2)
To retain custody of and provide for the safekeeping of anything seized as provided in § 196-20B and C of this chapter, subject to the regulations of the Town and subject to an order of any court having jurisdiction until determination of any prosecution arising from the violation or alleged violation with respect to which they are evidence.
A.
If the defendant is held liable or found guilty in any prosecution,
civil or criminal, of the taking of shellfish in violation of this
chapter, the defendant's interest in any and all rakes, tongs, dredges
or devices, other than a boat or vehicle, used for the purpose of
taking shellfish in violation of such provisions shall be forfeited
to the Town. Unless a claim of ownership of such device shall be made
to the Department of Environmental Resources by some other person,
within 30 days thereafter and shall be established by order of a court
or to the satisfaction of the Department of Environmental Resources
such device shall be disposed of as the Department of Environmental
Resources shall direct.
B.
For the purpose of this section, a "claim of ownership" shall mean
lawful interest, including a part interest or security interest.
(1)
A claim of ownership shall not prevent vesting or revesting of ownership and right of possession in the Town pursuant to Subsection A of this section, unless the person establishing it either establishes a right of ownership of any interest in the defendant or shall purchase or redeem from the Town any interest of the defendant by payment to the Town of the value thereof, together with the reasonable expenses of safekeeping of such property between the time of seizure and such redemption. Establishment of claim of ownership shall not in any event prevent such revesting in the Town if the Town shall establish that the illegal possession or transportation of which the defendant is held or found guilty was expressly or impliedly permitted by the person establishing the claim of ownership.
(2)
Establishment of a claim of ownership consisting of a part ownership or a security interest shall not entitle the person establishing it to delivery of property as to which the interest of the defendant is declared confiscated or forfeited as provided in Subsection A of this section, unless the person establishing it shall redeem any interest of the defendant by payment to the Town of the value thereof, together with the reasonable expenses of safekeeping of such property between the time of seizure and such redemption. Establishment of a claim of ownership shall not in any event entitle the person establishing it to delivery of property if the Town shall establish that the illegal use or possession of such property, in the manner or for the purpose or in the circumstances making such use or possession illegal, was expressly or impliedly permitted by the person establishing such claim of ownership.
(3)
Where a person establishing a claim of ownership is required to purchase
or redeem any interest of the defendant in a civil or criminal prosecution
in order to be entitled to delivery of property in which such claim
of ownership is established, such interest of the defendant must be
so purchased or redeemed not less than 10 days after the price of
purchase or redemption shall have been fixed by order of the court
or agreed between the person whose claim is so established and the
Bureau of Conservation and Waterways shall have the power to enter
into such agreement on behalf of the Town.
(4)
If a person establishing a claim of ownership shall fail to purchase
or redeem the interest of the defendant within the time provided in
the subsection, or such longer time as may be provided by order of
the court or agreement of the Bureau of Conservation and Waterways,
he shall be deemed to have abandoned his claim of ownership and the
property may be disposed of as if no claim has been asserted.
(5)
All moneys received in payment of the price of redemption or purchase
of the defendant's interest shall be deposited in the Town of Oyster
Bay's management account.
C.
A person asserting a claim of ownership as provided in this section
shall have the burden of proof.
D.
In any action or proceeding in which any person asserts a claim of ownership with respect to property in which the interest of the defendant is declared confiscated and forfeited as provided in Subsection A of this section, the testimony of such person or of the defendant in the civil or criminal prosecution, or of both, shall not be deemed sufficient to establish his claim unless corroborated by documentary evidence or by testimony of some other person not interested in the event.
A.
No person shall take shellfish from leased underwater shellfish lands
except the lessee and his employees or persons with written permission
of the lessee.
B.
The failure of any person to exhibit written permission from the
lessee to take shellfish from leased underwater lands required by
this chapter, to any Town of Oyster Bay Bay Constable or any authorized
officer shall constitute prima facie evidence that said person is
trespassing and in violation of this chapter.
The Town Board may lease underwater lands owned by the Town
and may renew all such leases, including those underwater lands conveyed
by the Town to the United States of America. The lessee shall have
the sole right to all shellfish on the lessee's leased underwater
lands. With the exception of lands heretofore leased, any additional
underwater lands shall not be leased where there is an indicated presence
of shellfish in sufficient quantity and quality and so located as
to support significant hand raking and/or tonging and harvesting.
A.
Application. No lease shall be granted except upon written application
on forms furnished by the Town Clerk properly executed and signed
by the applicant and approved by the Town Board.
B.
Terms and conditions. Leases may be made only to residents of the
Town or domestic corporations having their principal place of business
within the Town and of which the majority of shareholders reside in
the Town. The lease term shall be such term as the Town Board shall
deem appropriate, not to exceed 30 years. Each lease issued pursuant
to this section shall contain such provisions as the Town Board may
deem appropriate to protect and enhance the shellfish productivity
of underwater lands which are subject to the Town's jurisdiction.
C.
Letting to be at public auction. Letting of underwater lands owned
by the Town shall be at public auction and to the highest qualified
bidder pursuant to § 103 of the General Municipal Law. Before
a lease is made, notice of availability shall be conspicuously posted
for at least two months in the office of the Town Clerk. Such notice
shall set the time when and place where bids will be received. The
Town Board may reject any and all bids.
D.
Renewal and transfer. Notwithstanding the provisions of Subsection C of this section, leases may be renewed within six years prior to their expiration upon such terms and conditions as may be imposed by the Town Board after public hearing. Leases may be transferred with the consent of the Town Board, but no new lease may be transferred within the first five years from the date of issuance. In order to facilitate shellfish cultivation by straightening the exterior lines of leasehold lands included in any existing lease and in order to simplify lot designations, the Town Board may cause a new map of leased shellfish lands to be prepared showing an accurate depiction of the current shoreline of Oyster Bay Harbor, Cold Spring Harbor and Mill Neck Creek, straightened exterior lines for leasehold lands and a consolidation and renumbering of lots comprising such leasehold lands, and after the preparation of such map and during the term of any existing lease, may accept a surrender of that portion of the lands included in such lease as lie outside such straightened exterior lines and grant additional lands to the leaseholder which lie inside such straightened lines and are adjacent to lands included in such lease and may, upon such terms and conditions as may be imposed by the Town Board after public hearing and notwithstanding the provisions of Subsection C of this section, grant renewal leases for a term not to exceed 30 years which would effectuate such surrender and grant of land, designating the lots granted in such renewal lease in accordance with their designation on the aforesaid new map of leased shellfish lands.
E.
Summary proceedings. Upon failure to pay the rental on any date due
under the terms of the lease, the Town Board may, after written notice
to the lessee, declare the lease canceled as of the date set forth
in such notice, and may immediately thereafter evict the lessee from
such lands.
