[HISTORY: Adopted by the Board of Trustees of the Village
of Old Brookville 8-30-1976 by L.L. No. 2-1976. Amendments noted where
applicable.]
This chapter shall be known and may be cited as the "Freshwater
Wetlands Control Law of the Incorporated Village of Old Brookville."
A.
The Incorporated Village of Old Brookville hereby finds and declares
that the public interest and general welfare of the residents of the
Village will be served through the creation of procedures for the
preservation, proper maintenance, and utilization of natural resources
within the Village and for the protection of said natural resources
from encroachment upon, spoiling, pollution, or elimination resulting
from population growth attended by commercial development, housing,
roads, and other construction.
B.
The preservation and maintenance of freshwater wetlands and watercourses
in an undisturbed and natural condition constitutes important physical,
ecological, social, aesthetic, recreational, and economic assets necessary
to promote the health, safety and general welfare of present and future
residents of the Village and of downstream drainage areas.
C.
The losses of freshwater wetlands and watercourses deprive the people
of the Incorporated Village of Old Brookville of the many and multiple
benefits derived from them, to wit:
(1)
Control of floods and storms by the hydrological absorption and storage
capacity of freshwater wetlands;
(2)
Wildlife habitats by providing breeding, nesting, and feeding grounds
and predator escape cover for many forms of wildlife, wildfowl, and
shorebirds, including migratory wildfowl and rare species;
(3)
Protecting subsurface water resources, providing valuable watersheds,
and recharging groundwater supplies.
(4)
Pollution treatment by serving as biological and chemical oxidation
basins;
(5)
Erosion control by serving as sedimentation areas and filtering basins,
absorbing silt and organic matter, and protecting channels and harbors;
(6)
Education and scientific research by providing readily accessible
outdoor biophysical laboratories, living classrooms and education
resources;
(7)
Open space and aesthetic appreciation; and
(8)
Sources of nutrients in freshwater food cycles.
D.
It is therefore the intent of this chapter to promote the public
purposes identified in this section by providing for the protection,
proper maintenance and use of the freshwater wetlands and watercourses
located within the Village by preventing or minimizing erosion due
to flooding and stormwater runoff; maintaining the natural ground
water supplies; protecting subsurface water resources and providing
valuable watersheds; preserving and protecting purity, utility, water
retention capability, ecological functions, recreational usefulness
and natural beauty of all freshwater wetlands, watercourses, and other
related natural features of the terrain; and establishing and protecting
wildlife habitats by providing breeding, nesting, feeding grounds,
and predator escape cover for many forms of wildlife.
This chapter shall affect all land within the Incorporated Village
of Old Brookville and activities conducted thereon which are set forth
and defined hereafter and shall be binding upon all departments, boards
and official acts of the Incorporated Village of Old Brookville.
The following terms, phrases, words and their derivatives shall
have the meaning giving herein:
Includes the owner of the affected property, his or her agent
or contract vendee who files an application for a permit pursuant
to this chapter.
The outer limit of vegetation specified in Subsections A
and B of the definition of "freshwater wetlands" and the waters specified
in Subsection C of the definition of "freshwater wetlands" and as
specified in the definition of "watercourses" in this section.[1]
To fill, place, eject, discharge, or dump any material but
not including stormwater.
Lands and waters lying within the boundaries of the Village
as shown on the freshwater wetlands map prepared by or for the State
of New York and filed with Village pursuant to § 24-0301
of the New York State Environmental Conservation Law or as shown on
any freshwater wetlands maps the Village shall prepare, including
the Freshwater Wetlands Map, which contain any or all of the following:
Lands and submerged lands commonly called marshes, swamps, sloughs,
bogs and flats supporting aquatic or semi-aquatic vegetation of the
following vegetation type.
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
(Querus bicolor), red ash (Fraxinus pensylvanica), black ash (Fraxinus
nigra), silver maple (Acer saccharinum), American elm (Ulmus americana)
and larch (Larix laricina);
Wetland 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),
dogwoods (Cornus spp.), and leatherleaf (Chamaedaphne calyculata.);
Emergent vegetation; including, among others, cattails (Typha
spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.),
arrow arum (Petlandra virginica), arrowheads (Sagittaria spp.), reed
(Phragmites communis) wildrice (Zizania aquatica), burreeds (Sparganium
spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon
verticullatus), and water plantain (Alisma Plantago-aquatica);
Rooted, floating-leaved vegetation; including, among others,
waterlily (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 it a competitive
advantage over other open land vegetation; including, among others,
sedges (Carex spp.), rushes (Juncas spp.), cattails (Typha spp), rice
cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea),
swamp loosestrife (Decodon verticillatus), and spikerush (Eleocharis
spp.);
Bog mat vegetation; including among others, sphagnum mosses
(Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf
(Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea), and
cranberries (Vaccinium macrocarpon and V. Oxycoccos);
Submergent vegetation; including, among others, pondweeds (Potamogeton
spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild
celery (Vallisneria americanan), coontail (Ceratophyllum demersum),
water milfoils (Myriophyllum spp.), muskgrass (Chara spp.), stonewart
(Nitella spp.), waterweeds (Elodea spp.), and water smart weed (Polygonum
amphibium);
Lands and submerged lands containing remnants of any vegetation
that is not aquatic or semi-aquatic that has died because of wet conditions
over a sufficiently long period, provided that such wet conditions
do not exceed a maximum seasonal water depth of six feet, and provided
further that such conditions can be expected to persist indefinitely,
barring human intervention;
The map prepared for purposes of administering this chapter.
This map shall serve as a guide to the location and general boundaries
of freshwater wetlands and watercourses in the Incorporated Village
of Old Brookville but shall not, in itself, define the location and
boundaries of freshwater wetlands and watercourses, which are defined
in the definition of "freshwater wetlands" above.
Soil, sand, gravel, clay, bog, peat, mud, debris, and refuse
or any other organic or inorganic substance, whether liquid, solid,
or gaseous or any combination thereof.
Freshwater wetlands permit for the conduct of a regulated
activity,
Any corporation, firm, partnership, association, trust, estate,
one or more individuals, and any unit of government, agency or subdivision
thereof.
The Planning Board of the Incorporated Village of Old Brookville
designated by the Village to be responsible for administering the
provisions of this chapter and promulgating rules, regulations and
procedures necessary to implement and administer properly the provisions
herein.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be 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 water body, natural or artificial, such as but not limited
to a pond, reservoir, lake, stream, or brook.
Except as provided in § 160-6 of this chapter, the following activities shall be prohibited and unlawful:
A.
To deposit directly or indirectly or permit to be deposited any material
into, upon, or within 50 feet of the edge of any freshwater wetland,
or watercourse.
B.
To construct or permit to be constructed any building or structure
of any kind upon or within 50 feet of the edge of any freshwater wetland
or watercourse.
C.
To remove or permit to be removed any material (other than debris,
refuse, or water) from any freshwater wetland or watercourse.
A.
Activities allowed without permits. The following activities are
permitted in, upon, or within 50 feet of the edge of any such wetland
or watercourse, except where the Village does determine that the activity
violates, or threatens to violate the purposes of this chapter.
(1)
Outdoor recreation, including play and sporting areas; field trails
for nature study, hiking or horseback riding; and swimming, skin diving,
boating, trapping, hunting or fishing where otherwise legally permitted.
(2)
Maintenance of lawns, grazing, farming, gardening, and harvesting of crops where otherwise legally permitted, except for use of chemicals as provided for in Subsection B(6).
(3)
Operation and maintenance of such dams, retaining walls, terraces,
sluices, culverts or other water control structures or devices as
were in existence on the effective date of these regulations.
(4)
Incidental removal of brush and trees which would result in no appreciable
effect upon the runoff or drainage into any river, freshwater wetland
or watercourse.
B.
Activities requiring Planning Board approval. The following activities
are permitted in, upon or within 50 feet of the edge of any such freshwater
wetland or watercourse only after approval by and subject to the terms
and conditions specified by the Planning Board as a part of a subdivision
application, a site development plan application, or an application
submitted pursuant to the procedure set forth in this chapter. Such
Planning Board approval, terms and conditions are to be given and
imposed so as to enhance or cause the least possible damage, encroachment
or interference with the natural resources or functions of the freshwater
wetland or watercourse consistent with the purposes of this chapter.
(1)
Removing water-deposited silt, sand, or other material in order to
restore the preexisting elevations.
(2)
Restoring elevations that have been altered by erosion or storm drainage.
(3)
The construction, expansion or improvement of private recreation
facilities, as otherwise legally permitted, provided the amount of
material deposited, removed or regraded does not exceed 15 cubic yards.
(4)
The construction of roads or driveways, where alternative means of
access are proven to be impractical, provided they do not impede flood
flows.
(5)
The construction of municipal or utility uses such as water supply
facilities, park and recreation facilities, sewage treatment facilities
or other installations which involve any alteration of existing natural
conditions.
(6)
The use of chemicals, dyes, fertilizers, herbicides or other similar
materials, provided that approval shall be given only after consultation
with or pursuant to the guidelines of the Planning Board.
A.
Any person proposing, permitting or causing to be conducted a regulated
activity in, upon or within 50 feet of the edge of any freshwater
wetland shall file an application for site plan review approval and
a permit with the Village Clerk. If the wetland in question is located
partially outside the Incorporated Village of Old Brookville, one
copy of the application shall be filed by the Village Clerk with the
Clerk of Nassau County. To the extent that the following requirements
or procedures conflict or are not consistent with the rules and regulations
promulgated by the Planning Board for site plan review approval, the
more stringent requirements shall apply. Applications shall contain
the following information:
(1)
Name and address of owner and name and address of applicant, and
whether applicant is owner, lessee, licensee, etc. If applicant is
not owner of record, the written consent of the owner must be attached.
The application should state purpose of application and relief sought
and should include a detailed description of the proposed activity,
and a map showing the area directly affected, with the location of
the proposed activity thereon, and a current list of record owners
of lands and claimants of water rights within 100 feet of the property
on which the regulated activity is located.
(2)
It may be required that the applicant furnish any topographical and
perimeter surveys, hydrological computations, engineering studies
and other factual or scientific data and reports as deemed necessary
by the Planning Board to permit it to arrive at a proper determination.
(3)
Applications affecting water retention capability, water flow or
other drainage characteristics of any freshwater wetland or watercourse
shall include a statement of the area of upstream and downstream watersheds,
impact analysis and information as to rainfall intensity in the vicinity
for not less than ten-year return frequency, together with approximate
runoff coefficients to determine the capacity and size of any channel
sections, pipes or waterway openings, together with plans for necessary
bridges, culverts, stormwater or pipe drains that, in the opinion
of the Planning Board, are needed to arrive at a proper determination
on the application, consistent with the purposes of this chapter.
B.
After submission of the completed application, the applicant shall
publish, at his or her expense, a notice of application indicating
that the applicant intends to file an application in two newspapers
having a general circulation in the area. The Planning Board may waive
the publishing of the notice of application and require the publication
of the appropriate notice of hearing.
C.
If no notice of objection has been filed by any party-in-interest
in response to the notice of application, or if the Planning Board
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, it may dispense with public hearing. If the Planning Board
determines that a hearing is not to be held, the Boards shall publish,
in two newspapers, its decisions setting forth its findings and reasons
therefor.
D.
If a hearing is to be held, it shall be scheduled no sooner than
30 days and not later than 60 days after the receipt of the completed
application by the Village and the publishing of the notice of application.
The applicant shall publish the notice of hearing at his or her expense
in two newspapers having a general circulation in the area where the
affected freshwater wetland is located not more than 28 days nor less
than 15 days prior to the date set for the hearing.
E.
Applicant shall also send by certified mail not less than 15 days
prior to the date set for the hearing, the notice of hearing to owners-of-record
of adjacent lands within 100 feet of the premises containing the freshwater
wetland and known claimants to water rights which will be affected.
F.
Conditions and time limit. In approving any application submitted
pursuant to the requirements of this chapter, the Planning Board may
impose such conditions on the proposed activity as are necessary to
assure compliance with this chapter. The Planning Board may fix a
reasonable time within which any operations must be completed and
may also require the filing within the Village Board of Trustees of
cash or surety company performance bond in such amount and form as
determined necessary by the approving authority to ensure compliance
with the approved permit.
A.
Where the Planning Board finds that, because of the special circumstances of a particular case, extraordinary hardship may result from strict compliance with the provisions of this chapter, it may adjust, upon request of the applicant, the provisions of §§ 160-5 and 160-6 so that substantial justice may be done and the public interest secured; provided, however, that any such adjustment will implement the spirit and intent of this chapter. In permitting any such adjustment, the Planning Board shall attach such conditions as are, in its judgement, necessary to secure substantially the objectives of the standards or requirements so adjusted.
B.
Notwithstanding this section, only the Zoning Board of Appeals is empowered to grant variances to the regulations of Chapter 300, Zoning, of the Code of the Village of Old Brookville. In all cases where a freshwater wetland or watercourse is the basis for considering the granting of a variance, the Zoning Board of Appeals shall refer the matter to the Planning Board and other agencies they deem appropriate for review and report.
A.
General boundaries of freshwater wetlands and watercourses are shown on the Incorporated Village of Old Brookville Freshwater Wetlands Map. Finite boundaries will be interpreted by the Planning Board when necessary, according to the definitions established in § 160-4 of "freshwater wetlands," "watercourses" and "freshwater wetlands map." Finite boundaries shall be established after consultation with a qualified expert, who shall be appointed by the Planning Board.
B.
Notwithstanding the above, freshwater wetlands as shown on the Official
Map of wetlands prepared by the New York State Department of Environmental
Conservation under the authority of the Freshwater Wetlands Act shall
be considered to be freshwater wetlands by the Incorporated Village
of Old Brookville.
Upon application for a permit to conduct any activity requiring Planning Board action, the applicant shall pay a fee relating to site plan review under Chapter 154, Fees and Deposits, of the Code of the Village of Old Brookville, to the Incorporated Village of Old Brookville.
A.
Any person who violates, disobeys or disregards any provision of
this chapter shall be liable for a civil penalty, not to exceed $3,000
for every such violation to be assessed. Each and every day a violation
continues after written notice has been served on the violator by
the Building Inspector shall be deemed a separate violation. Before
assessment of the civil penalty, the alleged violator shall be afforded
a hearing or opportunity to be heard before the Planning Board upon
due notice, and with the rights to specification of the charges and
representation by counsel.
B.
The Planning Board shall also have the power, following a hearing,
to direct a violator to cease violation of this law and to satisfactorily
restore the affected freshwater wetland or watercourse to its condition
prior to the violation under the Board's supervision.
C.
Any civil penalty or order issued by the Village shall be reviewable
pursuant to the Civil Practice Law and Rules.
D.
In addition to the above civil penalty, any person who violates an order issued pursuant to Subsection B of this section shall be guilty of a violation pursuant to the Penal Law, punishable by a fine of not less than $500, nor more than $1,000. For a second and each subsequent offense, the violator shall be guilty of a violation punishable by a fine of not less than $1,000 nor more than $2,000.
E.
The Planning Board shall have the right to seek equitable relief
to restrain any violation or threatened violation of any provisions
of this chapter.
In their interpretation and application, the provisions of this
chapter shall be held to be the requirements adopted for the promotion
of the public health, safety, general welfare, and for the preservation,
proper maintenance, and utilization of natural resources. Whenever
the requirements of this chapter are at variance with the requirements
of any other lawfully adopted rules, regulations, laws or ordinances,
the most restrictive of that imposing the highest standards shall
govern, except where the provisions of the New York State Freshwater
Wetlands Act provide to the contrary.
This chapter or any part thereof, including the Freshwater Wetlands
Map, may be amended, supplemented or repealed from time to time by
the Village Board of Trustees on its own motion or on petition as
provided in the Village Law. Every such proposed amendment shall be
referred by the Village Board of Trustees to the Planning Board for
written report before any public hearing which may be held by the
Village Board of Trustees pursuant to Village Law. The Village Board
of Trustees shall not take action on any such amendment without such
reports from the Planning Board unless such Board shall fail to report
within 30 days after its regularly scheduled meeting next following
the receipt of such referral, but in no case later than within 45
days after the receipt of such referral by the Village Board of Trustees.
