[HISTORY: Adopted by the Town Board of the Town of Lewiston 8-23-1976 by L.L. No.
7-1976 (Ch. 11 of the 1965 Code). Amendments noted
where applicable.]
This chapter shall be known as and may be cited as the "Freshwater
Wetlands Law of the Town of Lewiston."
The Town of Lewiston finds that freshwater wetlands are invaluable
resources for flood protection, wildlife habitat, open space, water
resources, recreation and other benefits associated therewith which,
if preserved and maintained in an undisturbed natural condition, constitute
important assets to existing and future residents of the Town. It
is the intent of the Town Board to protect the residents of the Town
of Lewiston by preserving, protecting and conserving freshwater wetlands
and the benefits derived therefrom, to prevent the despoliation and
destruction of freshwater wetlands and to regulate the use and development
of such wetlands consistent with the general welfare and beneficial
economic, social and agricultural development of the Town.
The following terms, phrases, words and their derivatives shall
have the meanings given herein:
All lands within 100 feet, horizontally, of the vegetative
boundary of any freshwater wetland.
Any form of draining, dredging, excavation, removal of soil,
mud, sand, shells, gravel or other aggregate, or any form of dumping,
filling or depositing of any soil, stones, sand, gravel, mud, rubbish,
or fill of any kind, either directly or indirectly; erecting any structures
or roads, the driving of pilings or placing of any other obstructions,
whether or not changing the ebb and flow of the water; any form of
pollution; and any other activity which substantially impairs any
of the several functions served by freshwater wetlands or the benefits
derived therefrom which are set forth in § 24-0105 of the
New York State Environmental Conservation Law.
Any person who files an application for any permit issued
by the Town pursuant to this chapter and shall include the agent of
the owner or a contract vendee.
Lands and waters of the Town, as shown on the Freshwater
Wetlands Map approved by the Town of Lewiston and filed with the County
Clerk, which contain any or all of the following:
Lands and submerged lands, commonly called marshes, swamps,
sloughs, bogs and flats, supporting aquatic or semiaquatic vegetation
of the following vegetative types:
Wetland trees, which depend upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage
over other trees, including, among others, red maple (Acer rubrum),
willows (Salix spp.), black spruce (Picea mariana), swamp white oak
(Quercus bicolor), red ash (Fraxinus pennsylvanica), American elm
(Ulmus americana) and larch (Larix laricina).
Wetlands shrubs, which depend upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage
over other shrubs, including, among others, alder (Alnus spp.), buttonbush
(Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla)
and leatherleaf (Chamaedaphne calyculata).
Emergent vegetation, including, among others, cattails (Typha
spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.),
arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed
(Phragmites communis), wild rice (Zizania aquatica), bur reeds (Sparganium
spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon
verticillatus) and water plantain (Alisma plantago-aquatica).
Rooted, floating-leaved vegetation, including, among others,
water lily (Nymphaea odorata), water shield (Brasenia schreberi) and
spatterdock (Nuphar spp.).
Free-floating vegetation, including, among others, duckweed
(Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia
spp.).
Wet meadow vegetation, which depends upon seasonal or permanent
flooding or sufficiently waterlogged soils to give them a competitive
advantage over other open land vegetation, including, among others,
sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.),
rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinance),
swamp loosestrife (Decodon verticillatus) and spike rush (Eleocharis
spp.).
Bog mat vegetation, including, among others, sphagnum mosses
(Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf
(Chamaedaphe calyculata), pitcher plant (Sarrancenia purpurea) and
cranberries (Vaccinium macrocarpon and V. oxycoccos).
Submergent vegetation, including, among others, pondweeds (Potamogeton
spp.), navads (Najas spp.), bladderworts (Utricularia spp.), wild
celery (Vallisneria americana), coontail (Ceratophyllum demersum),
water milfoils (Myriophyllus spp.), muskgrass (Chara), stonewort (Nitella
spp.) waterweeds (Elodea spp.) and water smartweed (Polygonum amphibium).
Lands and submerged lands containing remnants of any vegetation
that is not aquatic or semiaquatic 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
further that such conditions can be expected to persist indefinitely,
barring human intervention.
Any person who files an application pursuant to this chapter
or is permitted to intervene pursuant to this chapter, or any official
within whose area is located the freshwater wetland or adjacent area
which is the subject of an application for a freshwater wetlands permit.
That form of Town approval required by this chapter for the
carrying on of a regulated activity.
Any corporation, firm, partnership, association, trust, estate,
one or more individuals and any unit of government or agency or subdivision
thereof.
The presence in the environment of man-induced conditions
or contaminants in quantities or having characteristics which are
injurious to humans, vegetation, wildlife or property.
Any action resulting in direct or indirect physical impact
on a freshwater wetland, including but not limited to any regulated
activity.
Any activity within a freshwater wetland or on the adjacent
area which, directly or indirectly, may substantially alter or impair
the natural condition of any freshwater wetland, including any form
of pollution, including but not limited to installing a septic tank,
running a sewer outfall or discharging sewage treatment effluent or
other liquid wastes into or so as to drain into a freshwater wetland;
and any other activity which substantially impairs any of the several
functions served by freshwater wetlands or the benefits derived therefrom.
A.Â
Except as hereinafter provided, it shall be unlawful for any person,
without obtaining a written permit therefor issued by the Town of
Lewiston, to alter any freshwater wetland.
B.Â
Each farmer or landowner who intends to conduct a regulated activity
that includes grazing and watering livestock, making reasonable use
of water resources, harvesting natural products of the wetlands, selectively
cutting 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 and shall not require a permit. Such individual shall,
however, notify the Building Inspector, in writing, of the proposed
activity.
C.Â
Public health activities, orders and regulations of the Department
of Health shall not be excluded from regulated activities. Such agency
shall make application for a permit in the same manner as any other
person.
D.Â
The Town Board of the Town of Lewiston is hereby empowered to promulgate
and adopt freshwater wetlands land use regulations, which will become
a part of the Town of Lewiston Land Use Master Plan.
A.Â
Any person proposing to conduct a regulated activity upon any freshwater
wetland shall file an application for a permit with the Building Inspector.
Determination of the application shall be made by the Building Inspector
or the Zoning Board of Appeals in accordance with this chapter. Such
application shall include a detailed description of the proposed activity
and a map showing the area of freshwater wetland directly affected,
with the location of the proposed activity thereon.
B.Â
A permit approved and issued by the Town does not relieve the applicant
of the necessity to obtain authorization from other agencies which
have jurisdiction over the project proposal.
A.Â
The Building Inspector may dispense with a public hearing and issue
the permit if no notice of objection has been filed and if he finds
that the proposed activity is of such a minor nature as not to affect
or endanger the balance of systems within the freshwater wetland.
If the Building Inspector finds that a hearing is not necessary, the
Building Inspector shall, within 30 days thereafter, publish his decision
setting forth his reasons therefor. Unless the Building Inspector
makes such findings and issues the permit, the application must be
forwarded to the Zoning Board of Appeals for public hearing and determination.
B.Â
No sooner than 10 days and not later than 60 days after the receipt
of such application, and after notice of application and public hearing
thereon has been published at least once in the official newspaper
of the Town, the Zoning Board of Appeals shall hold a public hearing
on such application. The notice of application and hearing shall be
published not more than 30 days nor less than 10 days prior to the
date set for the hearing. The Town shall also notify all owners of
record of adjacent lands and known claimants to water rights by registered
mail not less than 10 days prior to the date set for the hearing.
C.Â
In granting, denying or limiting any permit, the Zoning Board of
Appeals or the Building Inspector, as the case may be, shall consider
the effect of the proposed activity with reference to the public health
and welfare, flood, hurricane and storm dangers, and protection or
enhancement of other functions of freshwater wetlands and the benefit
derived therefrom. In no case shall a permit be issued which does
not meet the standards set forth in any land use regulations promulgated
pursuant to this chapter.
D.Â
If a permit is approved, approved with conditions or denied and the
decision is unacceptable to any person after public hearing, an appeal
may be made to the New York State Freshwater Wetlands Board of Appeals.
Subsequent appeal and review may be made in accordance with Article
78 of the New York State Civil Practice Law and Rules.
A.Â
The permit applicant or his agent proceeding with approved operations
shall carry on his person or have readily available the approved permit
and shall show same to the Building Inspector or any of the Building
Inspector's agents whenever requested.
B.Â
Operations conducted under permit shall be open to inspection at
any time by the Building Inspector.
C.Â
Performance bond.
(1)Â
The permit applicant, upon approval of the permit, shall file with
the Building Inspector a performance bond, if required, in an amount,
with sureties and in a form approved by the Building Inspector or
the Zoning Board of Appeals, as the case may be.
(2)Â
The bond and sureties shall be conditioned upon compliance with all
provisions of this chapter and conditions imposed upon permit approval.
D.Â
Liability insurance. The applicant shall certify that he has public
liability insurance against any liability which might result from
proposed operations or use covering any and all damage which might
occur within three years of completion of such operations.
E.Â
The applicant shall also submit to the Building Inspector an affidavit
which indemnifies and saves harmless the Town, or any agency or agent
thereof, from any claims arising out of or connected with operations
under the permit and from all acts, omissions, commissions or negligence
on the part of the applicant, his agents or employees.
F.Â
The Building Inspector and the Zoning Board of Appeals shall require
a permit or license fee for the permit application processing and
any operation or uses permitted pursuant to this chapter. A schedule
of fees shall be promulgated and may be changed from time to time
by the Zoning Board of Appeals.
A.Â
Administrative sanctions.
(1)Â
Any person, firm, corporation or entity found violating any provision
of this chapter or conditions imposed by the Building Inspector or
Zoning Board of Appeals upon an approved permit shall be served with
a written notice, at the direction of the Zoning Board of Appeals,
stating the nature of the violation and providing a specified time
within which the violation shall cease and satisfactory corrective
action shall be taken by the violator.
(2)Â
Any person who violates, disobeys or disregards any provision of
this chapter shall be liable to the people of the Town for a civil
penalty not to exceed $3,000 for every violation, to be assessed after
a hearing or opportunity to be heard, upon due notice and with the
right to specification of the charges and representation by counsel
at such hearing.
(3)Â
The Zoning Board of Appeals shall have the power, following a hearing,
to direct the violator to cease his violation of the act and satisfactorily
restore the affected freshwater wetland to its condition prior to
the violation.
B.Â
Criminal sanctions.
(1)Â
Any person who violates any order of the Zoning Board of Appeals
regulating freshwater wetlands shall, in addition, for the first offense
be guilty of a violation punishable by a fine of not less than $250
and/or a period of imprisonment not to exceed 15 days. For a second
and each subsequent offense, such person shall be guilty of a Class
A misdemeanor punishable by a fine of not more than $1,000 and/or
a term of imprisonment of not more than one year.
(2)Â
The Town Attorney shall prosecute persons alleged to have violated
the provisions of this chapter and shall seek equitable relief to
restrain any violation or threatened violation of its provisions.
