Town of North Castle, NY Permit Procedure

Where the Planning Board is the approval authority, upon submission of a completed application and upon referral from the Planning Board, the Conservation Board shall review the application and, within 45 days of receipt thereof, shall file a written report and its recommendation concerning the application with the Planning Board. Such report shall evaluate the proposed regulated activity in terms of the findings, intent and standards of this Chapter 340.

Where the Building Inspector is the approval authority, upon submission of the completed application, the Building Inspector shall provide the Conservation Board with an informational report at its next meeting.

[Amended 5-12-2021 by L.L. No. 2-2021]

Residential Project Review Committee. Pursuant to Chapter 12, Article IV, of the Town Code, the Residential Project Review Committee shall review all administrative wetland permit applications associated with one- and two-family parcels and determine whether a permit application should proceed with an administrative permit or whether Planning Board approval would be required.

Planning Board waiver. The Planning Board, if it determines that the requested wetland permit is minor in nature, may direct the permit to be processed administratively by majority vote.

SEQRA compliance. An application shall not be deemed complete until and unless the applicant has complied fully with the procedures of the State Environmental Quality Review Act.[1]

Editor's Note: See Article 8 of the Environmental Conservation Law, § 8-0101 et seq.

Maintenance of files. All information relating to a permit application, including but not limited to the application itself, additional required materials or information, notices, records of hearings, written comments and findings, shall be maintained on file in the office of the approval authority.

Site inspections. The approval authority, its agents or employees may enter upon any lands or waters for good cause shown so as to undertake investigations, examinations, surveys or other activity, including the review of applications and determinations of compliance with permits, all for the purpose of administering and enforcing this chapter.

Expiration of approval. All permits shall expire on completion of the acts specified and, unless otherwise indicated, shall be valid for a period of two years from the date of issue. An extension of an original permit may be granted upon written request to the approval authority by the original permit holder or his legal agent. The approval authority may require a new hearing if, in its judgment, the original intent of the permit is altered or extended by the renewal or if the applicant has failed to abide by the terms of the original permit in any way. The request for renewal of a permit shall follow the same form and procedure as the original application, except that the approval authority shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way.

§ 340-6 Application requirements; fees and escrow.

Required data for a Planning Board application. An application for a wetland activity permit shall be filed with the Planning Department and shall contain the following information:

Name and address of the owner and applicant, if different.

Street address and Tax Map designation of the property.

Watershed identification.

Identification of regulated wetland.

A statement of authority from the owner for any agent making application.

Statement of proposed work and purpose thereof and an explanation why the proposed activity cannot be relocated to any area so as not to require the issuance of a wetlands permit.

Quantification of disturbances/activities (square feet) within the wetland and wetland buffer.

A list of the names of the owners of record of lands adjacent to the wetland or wetland buffer in which the project is to be undertaken and the names of known claimants of water rights of whom the applicant has notice, which relate to any land within or within 100 feet of the boundary of the property on which the proposed regulated activity will be located.

(9)

A description of all functions currently provided by the wetland or watercourse under review.

(10)

A completed environmental assessment form.

(11)

Copies of all applicable permits or permit applications that are required for such work or, if application has not yet been made, a list of all permits that will ultimately be required.

(12)

Complete plans for the proposed site improvements, which shall be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn to a scale no less detailed than one inch equals 50 feet. Plans shall be submitted in eight sets. The plans shall show:

The location of all wetlands, as determined by a qualified individual identified on the plans (i.e., ecologist, botanist, soil scientist), no earlier than 12 months prior to the date of filing the application.

The location of the construction area or area proposed to be disturbed and its relation to property lines, roads, buildings and watercourses within 250 feet.

The exact locations, specifications and amount of all proposed draining, cut and fill, grading, dredging and vegetation removal or displacement and procedures to be used to do the work.

The exact location, specification, type and amount (square feet) of all proposed mitigation activities.

Existing and adjusted contours at two-foot intervals in the proposed disturbed area and to a distance of 50 feet beyond or greater as may be required by the approval authority.

(f)

Elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than five feet.

(g)

A description of the vegetative cover of the regulated area, including dominant species.

(h)

A description of the soil types on site.

(i)

Location of any wells and depths thereof and any sewage disposal system (including expansion area) within 200 feet of areas to be disturbed.

(j)

Details of any temporary or permanent drainage system proposed both for the conduct of work and after completion thereof, including locations at any point discharges, artificial inlets or other human-made conveyances which would discharge into the wetland or wetland buffer and measures proposed to control erosion, both during and after the work.

(k)

Where creation of a lake or pond is proposed, details of the construction of any dams, embankments, outlets or other water-control devices and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations (using Westchester County Soil Conservation Service method), subsurface soil, geology and groundwater conditions.

(l)

Where creation of a detention basin is proposed, with or without excavation, details of the construction of any dams, berms, embankments, outlets or other water-control devices and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations (using Westchester County Soil Conservation Service method), subsurface soil, geology and groundwater conditions.

(m)

Identification of any requested waivers.

(13)

Preparation of a plan that does not require the issuance of a wetlands permit for review by the Planning Board.

[Added 4-11-2018 by L.L. No. 2-2018]

Required data for the administrative application. An application for a wetland activity permit shall be filed with the Building Department and shall contain the following information:

Name and address of the owner and applicant if different.

Street address and Tax Map designation of the property.

Statement of authority from the owner for any agent making application.

Statement of proposed work and purpose thereof.

Watershed identification.

Identification of regulated wetland.

Quantification of disturbances/activities (square feet) within the wetland and wetland buffer.

A completed environmental assessment form.

(9)

Copies of all applicable permits or permit applications that are required for such work, or if application has not yet been made, a list of all permits that will ultimately be required.

(10)

Complete plans for the proposed lot improvements, which may be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn at a scale of one inch equals 50 feet. Three sets of such plans shall be submitted with each application and show (See Subsection C for information regarding waiver provisions.):

The location of the wetlands and/or watercourses as they exist in the field or as shown on the Town of North Castle Environmental Map and field-verified by the Town Wetland Consultant.

Location and quantification (square feet) of the construction area or area proposed to be disturbed and their relation to property lines, roads, buildings and watercourses and wetlands.

Existing and proposed contours at two-foot intervals in the proposed disturbed area as may be required at the sole discretion and request of the Town Wetland Consultant.

Location of any existing structures, well(s) and septic system(s), other improvements, easements or encumbrances as required by the Town Wetland Consultant.

Identification of any requested waivers.

Certain application submission requirements may be waived at the discretion of the approval authority subject to meeting the following conditions:

The applicant shows good cause for the requested waiver;

The waiver does not compromise a proper and complete review; and

The information is not material to describing the proposal or demonstrating compliance with approval criteria.

Fees.

An application fee in such amount as set forth in the Master Fee Schedule shall be paid by the applicant.[1]

[Amended 8-14-2013 by L.L. No. 7-2013]

Editor's Note: See Ch. A370, Master Fee Schedule.

The Building Inspector, the Planning Board, and the Conservation Board, in the review of any wetland permit, may refer any such application presented to it to such engineering, planning, legal, technical or environmental consultant, or professional(s) employed by the Town as such approval authority shall deem reasonably necessary to enable it to review such application as required by law. Charges made by such consultants shall be in accord with charges usually made for such services in the metropolitan New York region or pursuant to an existing contractual agreement between the Town and such consultant. Charges made by the Town shall be in accord with the hourly rates upon which the employee's actual salary is based and fringe benefits and reasonable overhead. All such charges shall be paid on submission of a Town voucher. The applicant shall reimburse the Town for the cost of such consultant services upon submission of a copy of the voucher, in accordance with the escrow account procedure set forth below.

Escrow accounts. At the time of submission of an application, the approval authority may require the establishment of an escrow account from which withdrawals shall be made to reimburse the Town for the cost of consultant fees and professional staff services. The applicant shall then provide funds to the Town for deposit into such account, in the amount to be determined by the approval authority based upon its evaluation of the nature and complexity of the application. The applicant shall be provided with copies of any Town voucher for consultant fees as they are submitted to the Town and with Town staff time records for services for which reimbursement is sought. When the balance in such escrow account is reduced to 1/3 of its initial amount, the applicant shall deposit additional funds into such account to restore the balance in such account to the amount of the initial deposit. If such account is not replenished within 30 days after the applicant is notified, in writing, of the requirement for such additional deposit, the approval authority may suspend its review of the application. A building permit, certificate of occupancy or use or certificate of compliance shall not be issued unless all such applicant's costs have been reimbursed to the Town. After all pertinent costs have been paid, the Town shall refund to the applicant any funds remaining on deposit.

Administrative wetland permit fees. A fee shall be charged in connection with the review of administrative wetland permit applications when such application is referred to the Town Wetlands Consultant by the Building Inspector as described in or contemplated by this chapter in such amounts as set forth in the Master Fee Schedule.[2]

[Added 8-14-2013 by L.L. No. 7-2013; amended 5-12-2021 by L.L. No. 2-2021]

[2]

Editor's Note: See Ch. A370, Master Fee Schedule.

Additional data. The approval authority may require additional information deemed necessary to evaluate the proposed activity in terms of the goals and standards of this chapter, such as the study of flood, erosion or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards.

§ 340-7 Public hearing and notice.

[Amended 2-25-2015 by L.L. No. 2-2015; 11-18-2015 by L.L. No. 9-2015]

No sooner than 30 days and not later than 60 days after receipt of a complete application by the Planning Board, the Planning Board shall hold a public hearing on such application. Where the approval authority is the Building Inspector in consultation with the Town Wetland Consultant, then no public hearing shall be required. Notice of such hearings shall be given in the same manner as prescribed for the approval of plats under § 276 of the Town Law, and in addition, the applicant shall notify all abutting property owners of record. Such service shall be made by first class mail. The mailing shall be made at least 10 days before such hearing. Notice of hearing shall be mailed by the applicant in official envelopes provided by the Town of North Castle. Proof of mailing to all required property owners shall be demonstrated by providing the Town with a certificate of mailing (PS Form 3817 or 3877). All applications, maps and documents relating thereto shall be open for public inspection at the offices of the Planning Department. At such hearing, any person or persons having an interest may appear and be heard.

§ 340-8 Criteria for decisions; denial; Conservation Board report.

Criteria to be considered. In granting, granting subject to conditions, or denying any application for a permit under this chapter, the approval authority shall evaluate wetland functions and the role of the wetland in the hydrologic and ecological system and shall determine the impact of the proposed activity upon public health and safety, rare and endangered species, water quality and the additional wetland functions listed in § 340-1. In this determination, the approval authority shall consider the following factors and shall issue written findings with respect to:

The impact of the proposed activity and existing and reasonably anticipated similar activities upon neighboring land uses and wetland functions as set forth in § 340-1, including but not limited to the:

Infilling of a wetland or other modification of natural topographic contours.

Disturbance or destruction of natural flora and fauna.

Influx of sediments or other materials causing increased water turbidity or substrate aggradation.

Removal or disturbance of wetland soils.

Reductions in wetland water supply.

(f)

Interference with wetland water circulation.

(g)

Reduction or increases in wetland nutrients.

(h)

Influx of toxic chemicals or heavy metals.

(i)

Temperature changes in the wetland water supply.

(j)

Changes affecting natural aesthetic values.

Any existing wetland impacts and the cumulative effect of reasonably anticipated future wetland activities in the wetland subject to the application.

The impact of the proposed activity and reasonably anticipated similar activities upon flood flows, flood storage and water quality.

The safety of the proposed activity from flooding, erosion, hurricane winds, soil limitations and other hazards and possible losses to the applicant and subsequent purchasers of the land.

The adequacy of water supply and waste disposal for the proposed use.

Consistency with all applicable statutes or regulations or comprehensive land use plans.

The availability of preferable alternative locations on the subject parcel.

The adequacy of the proposed mitigation plan in minimizing the potential impacts of the activity.

Basis for denial. The approval authority shall deny a permit if:

The proposed activity may significantly threaten public health and safety, result in fraud, cause nuisances, impair public rights to the enjoyment and use of public waters, threaten a rare or endangered plant or animal species, violate water quality standards or violate other federal, state or local regulations.

It finds that the detriment to the public, measured by the factors listed in this section, that would occur on issuance of the permit outweighs the nonmonetary public benefits associated with the activity.

Both the affected landowner and the local government have been notified by a duly filed notice, in writing, that the state or any agency or political subdivision of the state is in the process of acquiring the subject freshwater wetland by negotiation or condemnation with the following provisions:

The written notice must include an indication that the acquisition process has commenced, such as that an appraisal of the property has been prepared or is in the process of being prepared.

If the landowner receives no offer for the property within one year of the permit denial, this ban to the permit lapses. If its negotiations with the applicant are broken off, the state or any agency or political subdivision must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law or this ban to permit lapses.

There is a viable alternative to the proposed activity's placement in or encroachment upon the wetland or wetland buffer area.

Consideration of relationship of activity to wetland site. The approving agency shall give consideration to the necessity for a proposed activity to have a water or wetland location in order to function and that will have as little impact as possible upon the wetland buffer. In general, permission will not be granted for dredging or ditching solely for the purpose of draining wetlands, controlling mosquitoes, lagooning, creating ponds or stormwater detention basins, constructing residences or commercial buildings, providing spoil and dump sites, or building roadways that may be located elsewhere. The regulated activity must, to the extent feasible, be confined to the portion of a lot outside of a wetland and wetland buffer. All reasonable measures must be taken to minimize impact upon the wetland and wetland buffer.

Determination of unavoidable impacts. When an applicant has demonstrated that either losses or impacts to the wetland or wetland buffer are necessary and unavoidable and have been minimized to the maximum extent practicable, the approval authority shall require preparation of a mitigation plan by the applicant pursuant to § 340-9.

The following is the order of preference for mitigation plans:

Avoidance.

Minimization.

Rectification by repairing or restoring.

Reduction through preservation and operation maintenance.

For the purposes of this chapter, wetland impacts are necessary and unavoidable only if all of the following criteria are satisfied:

The proposed activity is compatible with the public health and welfare.

There is no feasible on-site alternative to the proposed activity, including reduction in density, change in use, revision of road and lot layout and related site planning considerations.

There is no feasible alternative to the proposed activity on another site available to the applicant that is not a wetland or wetland buffer.

Conservation Board report. If the Conservation Board recommends disapproval or modification of an application under this chapter, the Planning Board shall not act contrary to such recommendation except by a vote of a majority plus one of the whole number of the Planning Board. If no recommendation is received by the Planning Board, the Conservation Board shall be deemed to have made no recommendation, and the supermajority requirement shall not apply.

§ 340-9 Mitigation policy.

Mitigation required.

After it has been determined by the approval authority pursuant to § 340-8D that losses of wetland or wetland buffer are necessary and unavoidable and have been minimized to the maximum extent practicable, the applicant shall develop a mitigation plan which shall specify mitigation measures that provide for replacement wetlands or wetland buffers that recreate as nearly as possible the original wetlands and buffer in terms of type, function, geographic location and setting. The mitigation plan shall compensate for unavoidable wetland losses at a ratio of not less than two for one, i.e., two acres of created wetland for every one acre of wetland loss. The mitigation plan shall also compensate for unavoidable wetland buffer losses at a ratio of two for one, unless the approval authority determines that such mitigation is not feasible.

All mitigation measures shall balance benefits of regaining new wetland and buffer areas with the loss to other natural areas due to wetland and/or buffer creation. On-site mitigation shall be required; however, off-site mitigation shall be permitted in cases where an on-site alternative is not possible or practical.

Mitigation includes, but is not limited to, remediating activities that limit environmental damage, wetlands construction, mitigation plantings, wetland maintenance, establishment of no-mow zones, removal of invasive species, and wetland buffer enhancement.

Fee in-lieu. The Town Board, upon recommendation of the Planning Board, shall have the authority to accept a cash payment to the Town of North Castle Wetland Mitigation Bank in lieu of providing some, or any, of such required wetland and wetland buffer mitigation, and the Town Board, in its discretion, may elect to accept such payment on behalf of the Town. The amount of the cash payment required for such disturbance shall be in such amount as set forth in the Master Fee Schedule.[1] The expenditure of wetland mitigation bank revenues shall be limited exclusively to those actions designed to provide for the enhancement of wetland and/or wetland buffer areas.

[Added 4-11-2018 by L.L. No. 2-2018]

Editor's Note: See Ch. A370, Master Fee Schedule.

Mitigation plans developed to compensate for the loss of wetlands shall include the following:

Monitoring schedule. A monitoring schedule for a specified period of time as agreed to by the approval authority and which shall be in accordance with the provisions of § 340-12.

Mitigation types. Mitigation may take the following forms, either singularly or in combination, for disturbances in wetlands and wetland buffers:

For disturbance in a wetland buffer:

Implementation of preventative practices to protect the natural condition and functions of the wetland; and/or

[2]

Restoration or enhancement (e.g., improving the density and diversity of native plant species) of remaining or other upland buffer to offset the impacts to the original buffer.

For disturbance in a wetland:

Restoration of areas of disturbed or degraded wetlands, at a minimum ratio of 2 (restored wetland) to 1 (impacted wetland), by reclaiming disturbed or degraded wetland to bring back one or more of the functions that have been partially or completely lost by such actions as draining or filling, provided that the area of proposed mitigation occurs in a confirmed disturbed or degraded wetland having significantly less functional value as a result of disturbance or degradation; and/or

[2]

The in-kind replacement of impacted wetland by the construction of new wetlands, usually by flooding or excavating lands in upland areas, that recreates as nearly as possible the original wetland in terms of type, function, geographic location, and setting and that is larger than the original wetland by a minimum ratio of 2 to 1.

Mitigation plan becomes part of permit. Any mitigation plan prepared pursuant to this section and accepted by the approval authority shall become part of the permit for the application. All mitigation plans shall include:

A map with sufficient detail and at a scale that makes it possible to determine where the wetland and/or wetland buffer is located, its size, its boundaries, and its topographical features;

Baseline data as needed to adequately review the effectiveness of this plan;

A narrative which describes the goals and specific objectives for the mitigation wetland or wetland buffer, including the functions and benefits to be provided and clear performance standards and criteria for assessing project success;

A description of the physical, hydrological, and ecological characteristics of the impacted wetland and/or wetland buffer and proposed restoration and/or created wetland and/or buffer in sufficient detail to enable the approval authority to determine whether wetland or buffer impacts will be permanently mitigated;

Details on construction, including:

Diking, excavation, or other means by which the wetland will be restored or created, including existing and proposed topographical contours.

Construction schedule.

Measures to control erosion and sedimentation during construction.

Plantings: source of stock, procedures for transplanting/seeding the stock, area(s) to be planted, and planting schedule. If vegetation from the wild is to be used, identify the source and measures to prevent introduction of undesirable exotics.

Chemicals. If applicable, explain why chemicals will be used and precautions to be taken to minimize their application. Always protect the wetland and/or wetland buffer from excessive chemicals;

Details on management of the mitigation site, including:

Measures to assure persistence of the wetland (e.g., protection against predation by birds and other animals).

Vegetative management.

Sediment and erosion control.

Plans for monitoring the site during and after construction, including methods and schedule for data collection and provisions for midcourse corrections.

Provision for bonding or other financial guarantees;

A description of the periodic reporting, including at the end of construction, during the monitoring period, and at the end of the monitoring period; and

Identification of the name, qualifications, and experience of the person(s) implementing the mitigation plan (i.e., contractor who will restore or construct the wetland).

§ 340-10 Action on permit; conditions.

Action may be subject to conditions. Any permit issued pursuant to this chapter may be issued with conditions. Such conditions may be attached as the approval authority deems necessary to ensure the preservation and protection of affected wetlands and to ensure compliance with the policies and provisions of this chapter and the provisions of the approval authority's rules and regulations, if any, adopted pursuant to this chapter.

Required conditions. Every permit issued pursuant to this chapter shall be in written form and shall contain the following conditions:

Work conducted under a permit shall be open to inspection at any time, including weekends and holidays, by the approval authority, Town officials, the Conservation Board, the Town Wetland Consultant or their designated representatives.

The permit shall expire on a specified date.

The permit holder shall notify the approval authority of the date on which the work is to begin at least five days in advance of such date.

The approval authority's permit shall be prominently displayed at the project site during the undertaking of the activities authorized by the permit.

Additional conditions. The approval authority shall set forth in writing and maintain on file its findings and reasons for all conditions attached to any permit. Such conditions may include, but shall not be limited to:

Limitation on the total portion of any lot or the portion of the wetland on the lot that may be graded, filled or otherwise modified.

Modification of waste disposal and water supply facilities.

Imposition of operation controls, sureties and deed restrictions concerning future use and subdivision of lands, such as preservation of undeveloped areas in open space use and limitations on vegetation removal.

Dedication of easements to protect wetlands.

Erosion control measures.

Setbacks for structures, fill, deposit of soil and other activities from the wetland.

Modifications in project design to ensure continued water supply to the wetland and circulation of waters.

Replanting of wetland vegetation and construction of new wetland areas to replace damaged or destroyed areas.

§ 340-11 Performance and/or erosion control bonds.

The approval authority may require posting of a performance bond as a condition of a permit, the amount, surety and form of such bond to be approved by the Town Board. Such bond is intended to ensure the proper completion of the proposed activity in accordance with the approved plans, the restoration of the area to its natural condition as far as practicable and consistent with the mitigation plan and protection of adjoining property owners from damage resulting therefrom. It shall remain in effect until the approval authority certifies that the work has been completed in compliance with the terms of the permit, whereupon the bond shall be released or reduced by the approval authority after authorization of the Town Board. A substitute form of guaranty may be provided as approved by the Town Board.

The approval authority may require posting of an erosion control bond as a condition of a permit, the amount, surety and form of such bond to be approved by the Town Board. The erosion control bond is intended to ensure the proper installation and maintenance of the erosion control measures during the permitted activity period. It shall remain in effect until the approval authority certifies that the work has been completed in compliance with the terms of the permit, whereupon the bond shall be released by the approval authority after authorization of the Town Board.

§ 340-12 Monitoring and inspection.

Monitoring required. The approval authority shall monitor or shall cause to have monitored activities granted permits according to the specifications set forth in the permit to determine whether the elements of the permit and mitigation plan have been met and whether the wetland acreage or buffer created replaces the wetland acreage or buffer lost. To this end, the approval authority may contract with an academic institution and independent research group or other qualified professionals at the expense of the applicant or may use its own staff expertise. Where the approval authority deems monitoring to be necessary, an applicant shall be required to post a bond.

Requirements of monitoring. The requirements for monitoring shall be specified in the permit or mitigation plan and shall include, but not be limited to:

The time period over which compliance monitoring shall occur. Monitoring of mitigation plans shall be, at a minimum, five years after completion of all construction activity on site.

Field measurements to verify the size and location of the impacted wetland area and the restored/replacement wetland area.

The date of completion of the restoration/replacement.