Town of Bedford, NY Wetlands

Editor's Note: Former Ch. 122, Wetlands, adopted 2-20-1973, as amended, was repealed 8-20-1991 by L.L. No. 3-1991

§ 122-1 Title; purpose.

This legislative action shall be known as the "Freshwater Wetlands Law of the Town of Bedford." The intent of this chapter is to promote the health and welfare of the citizens of Bedford by preserving and protecting the wetlands of the Town through careful regulation and control so that they may continue in their natural functions and to protect property from damages caused by flooding and other losses due to wetland destruction.

§ 122-2 Legislative findings.

The Town Board of the Town of Bedford has determined that the public interest, health, safety and the economic and general welfare of the residents of the Town of Bedford will be best served by providing for the protection, preservation, proper maintenance and use of its ponds, lakes, reservoirs, water bodies, rivers, streams, watercourses, wetlands, natural drainage systems and adjacent land areas from encroachment, spoiling, polluting or elimination.

The remaining wetlands (as defined below) in Bedford are a valuable natural resource which serves to benefit the entire Town and the surrounding region by:

Providing drainage and flood control through hydrologic absorption and natural storage.

Protecting surface/subsurface water resources, watersheds and groundwater recharge systems.

Providing a suitable living, breeding, nesting and feeding environment for many forms of wildlife, including waterfowl, shorebirds and rare species such as the osprey.

Treating polluted surface and subsurface waters through biological degradation and chemical oxidation.

Controlling downstream erosion and serving as natural sedimentation areas and filter basins.

Providing sources of nutrients in freshwater food cycles.

Serving as nursery grounds and sanctuaries for freshwater fish.

Providing recreation areas for fishing, boating, hiking, bird-watching, photography and other passive recreational uses.

BEDFORD REGULATED WETLAND AREA MAP

Preserving much needed open space which serves to satisfy man's psychological and aesthetic needs.

(10)

Maintaining the potable water supply and renovation of septic and other wastes in the Town.

Wetlands protection is a matter of concern to the entire Town, and the establishment of regulatory and conservation practices in this critical area serves to protect the public health, safety and welfare by ensuring review and regulation of any activity on wetlands which might adversely affect that health, safety and welfare.

Wetlands in Bedford and other areas form an ecosystem which is not confined to any one property owner or neighborhood. Experience has demonstrated that effective wetlands protection requires uniformity of preservation and conservation throughout the Town.

Loss of wetlands can cause or aggravate flooding, erosion, degradation and diminution of water supply for drinking and waste treatment and may pose a threat to the health, safety and welfare of the people of Bedford and the surrounding region.

Regulation of wetlands is consistent with the legitimate interests of farmers and other landowners to graze and water livestock and to make reasonable use of water resources.

§ 122-3 Intent.

It is declared to be the intent of the Town of Bedford to control, protect, preserve, conserve and regulate the use of wetlands (as defined below) within the Town of Bedford to ensure that the benefits found to be provided by wetlands as set forth in § 122-2 hereof will not be lost and to protect the important physical, ecological, recreational and economic assets of the present and future residents of the Town, and so as to protect the broader public interest.

These regulations are enacted with the intent of providing a reasonable balance between the rights of the individual property owner to the free use of his property and the rights of present and future generations. Therefore, this chapter recognizes the rights of owners of property in or near wetlands to use their property for reasonable purposes consistent with other regulations and controls, provided that such use, in the judgment of the appropriate agencies or officials of the Town of Bedford, does not result in a loss of or impairment to the wetland system, both on and off site, or the functions which the wetlands have found to fulfill in the Town of Bedford.

It is the intent of this chapter to incorporate the consideration of wetlands protection into the Town's extant land use and development approval procedures.

§ 122-4 Word usage; definitions.

Except where specifically defined herein, all words used in this chapter shall carry their customary meanings. Words used in the present tense include the future and the plural includes the singular. The word "shall" is intended to be mandatory.

As used in this chapter, the following terms shall have the meanings indicated:

APPLICANT

See "person."

A series of maps, dated January 1991, prepared by Evans Associates that show areas which may constitute regulated wetlands.

BUILDING

Any structure having a roof, supported by columns or by walls or self-supporting, and intended for the shelter, housing or enclosure of natural persons, animals or chattel.

BUILDING INSPECTOR

The duly appointed Building Inspector of the Town of Bedford.

CERTIFICATE OF COMPLIANCE

That form of written confirmation by the Town of Bedford that all authorized activities have been physically completed in accordance with this chapter and an authorizing activity permit and/or activity implementation permit as required.

CODE ENFORCEMENT OFFICER

The official of the Town appointed by the Town Board to fulfill the designated responsibilities set forth in this chapter.

COMMISSION

The Wetlands Control Commission as defined and established in §§ 122-6 and 122-7 of this chapter.

CONSERVATION BOARD

The duly appointed Conservation Board of the Town of Bedford as created pursuant to § 239-y of the General Municipal Law.

DAMS and WATER CONTROL MEASURES AND DEVICES

Barriers which regulate or obstruct the flow of water or raise, or lower or maintain the level of water in ponds, lakes, natural drainage systems and wetlands.

DEPOSIT

To fill, place, eject or dump any liquid, solid or gaseous material or the act thereof, but not including uncontaminated stormwater.

ECOLOGIST/BOTANIST

A person having special knowledge of the physical, chemical and biological sciences related to the physiology, identification and distribution of native plants and vegetative associations in wetland and upland systems and of methods to describe, classify and delineate vegetative species and associations.

FACULTATIVE

Having the power to exist in and become adapted to changed conditions; distinguished from obligate.

FERTILIZER

Any organic or inorganic material of natural or synthetic origin that is applied to soil to supply one or more nutrients needed for the growth of plants.

MATERIAL

Substances including, but not limited to, soil, silt, gravel, rock, sand, clay, peat, mud, debris and refuse; any organic or inorganic compound, chemical agent or matter (excluding pesticides, herbicides, algaecides and agricultural or radioactive wastes to the extent that same are exempt or regulated exclusively by the State of New York); sewage, sewage sludge or effluent; and industrial or municipal solid waste.

MITIGATION PLAN

The plan prepared by an applicant to compensate for the proposed wetland, watercourse and wetland/watercourse buffer impacts pursuant to the standards and requirements of this chapter.

OBLIGATE

Having only one life condition; distinguished from facultative.

PERMIT

That form of Town approval required by this chapter for the conducting of a regulated activity within any area of the Town of Bedford defined as a "wetland" or "wetland/watercourse buffer."

PERSON or APPLICANT

Any individual or individuals, firm, partnership, association, corporation, company, organization or other legal entity of any kind, including municipal corporations, governmental agencies or subdivisions thereof.

PLANNING BOARD

The duly appointed Planning Board of the Town of Bedford as created pursuant to § 271 of the Town Law.

PLANT

Any living thing that grows in the ground and has roots and leaves or flowers, and needs sun and water to survive, including trees, shrubs, herbs, ferns, mosses and other vegetation.

POLLUTION

The presence in the environment of human-induced conditions or contaminants in quantities or characteristics which are or may be injurious to human, plant or animal life or to property.

REMOVE

To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or regrade or the act thereof.

SOIL SCIENTIST

A person having special knowledge of the physical, chemical and biological sciences and applicable to the genesis and morphology of soils as natural bodies and of the methods to describe, classify and map soil units.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)

The law pursuant to Article 8 of the New York Environmental Conservation Law providing for environmental quality review of actions which may have a significant effect on the environment.

STATE FRESHWATER WETLANDS

Lands and waters of the state, as shown on the State Freshwater Wetlands Map, which contain any and all of the conditions described in Subdivision 1 of § 24-0107 of the Environmental Conservation Law.

STRUCTURE

Anything constructed or erected, the use of which requires location on or under the ground or attachment to something having location on the ground. Structure shall include a building as defined herein.

TOWN BOARD

The duly elected Town Board of the Town of Bedford.

TOWN CLERK

The duly elected Town Clerk of the Town of Bedford.

TOWN DIRECTOR OF PLANNING

The Director of Planning of the Town of Bedford.

TOWN ENGINEER

Any person employed by the Town of Bedford as the Town Engineer, including consultants.

TOWN ENVIRONMENTAL CONSULTANT

The qualified environmental scientist which the Town Board retains to carry out the functions described in this chapter.

WETLANDS

All areas and waters of the Town of Bedford that are comprised of hydric soils and/or are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of hydrophytic vegetation. The following criteria shall be used to determine the presence of hydrophytic vegetation, hydric soils and hydrologic indicators:

Hydrophytic vegetation are those plants which are dependent upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other species. These plants may belong to any of the following vegetative types: wetland trees, wetland shrubs, emergent vegetation, submergent and rooted floating-leaved vegetation, free-floating vegetation, wet meadow vegetation and bog mat vegetation. The following indicators of hydrophytic vegetation may be used in conjunction with hydric soils and/or wetland hydrology:

The presence of obligate wetland species, particularly as dominants, in a vegetation unit shall be considered diagnostic of wetlands. Facultative species may be present but obligate upland species cannot be present on other than microsites. Obligate and facultative vegetative species are listed in the National Lists of Plant Species That Occur in Wetlands: Northeast (Region 1) (Reed, 1988) prepared by the United States Fish and Wildlife Service in cooperation with the National and Regional Wetland Plant List Review Panels, as amended from time to time and as on file with the Town Clerk.

Plants with adaptations to inundation and/or saturated soil conditions shall be considered diagnostic of wetlands. Such adaptations include but are not limited to pneumatophores, buttressed tree trunks, floating stems, floating leaves, multiple trunks, hypertrophied lenticels and inflated leaves, stems or roots.

Hydric soil is a soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part, as set forth in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, dated January 1989, prepared by the federal government, and as updated from time to time and as on file with the Town Clerk.

Hydrologic indicators.

The following water bodies and watercourses are regulated under this chapter:

Ponds, lakes, reservoirs, marshes, swamps, bogs or other areas of permanent water retention, regardless of origin.

[2]

All natural drainage systems, including rivers, streams and brooks which contain water at least six months of the year and the associated floodplains of such watercourses.

WETLAND/WATERCOURSE BUFFER

The Bedford Regulated Wetlands Area Map is intended to provide general guidance only in locating and determining those areas which constitute wetlands, and areas not shown on said map may constitute wetlands as defined herein. Finite boundaries of wetlands may be required to be established by the Commission or the applicant. The delineation of wetlands boundaries shall be performed by a qualified botanist/ecologist and/or certified soil scientist.

WETLANDS PERMIT OFFICIAL

The administrative official appointed by the Town Board to fulfill the designated responsibilities set forth in Subsection D of § 122-8 of this chapter and who shall be qualified as a wetlands scientist or by reason of training and experience in wetlands science.

An area surrounding a wetland/watercourse that is intended to provide protection to the wetland/watercourse from human activity and other encroachment associated with development. The wetland/watercourse buffer shall be an area extending 100 feet horizontally away from and parallel to wetland boundary or bank of the watercourse. Regulated area surrounding such natural drainage systems shall include all adjacent surface for 100 feet as measured from both sides of the bank of the watercourse or adjacent surface which has an elevation of less than five feet above the normal (mean) waterline, whichever is more.

§ 122-5 Amendments.

This chapter may be amended by the Town Board after due notice and public hearing.

§ 122-6 Creation and organization of Wetlands Control Commission.

The Town Board is hereby authorized and empowered to create a Wetlands Control Commission which shall consist of five resident members, who shall be qualified by reason of training, experience or interest in engineering, in water-related science, community planning, conservation, landscape architecture, wildlife management, forestry, ecology, hydrology or other related field. The Commission may also obtain access to such training through qualified consultants. The members of the Wetlands Control Commission shall be appointed by the Town Board, and the Town Board may allocate and budget for such expenses as may be necessary and proper. The Town Board is hereby authorized to make such appropriation as it may see fit for such expenses. If a previous Commission does not exist, of the members first appointed, one shall hold office for the term of one year, two for the terms of two years and two for the terms of three years. If a previous Commission does exist, their successors shall be appointed for terms of three years from and after the expiration of the terms of their predecessors in office. If a vacancy shall occur otherwise than by expiration of a term, it shall be filled by the Town Board by appointment to the unexpired term. Meetings of the Commission shall be held on a regular basis. Three members of such Commission shall constitute a quorum for holding a meeting. A minimum of three concurring votes shall be required to approve or deny an application. The Commission shall keep minutes of its proceedings showing the vote of each member upon any question or, if absent or failing to vote, indicating such fact, and shall also keep records of its official actions.

The Commission may refer appropriate questions to the Town Engineer, the Director of Planning, the Town Environmental Consultant and Code Enforcement Officer for his or her opinion and recommendation. The Commission may require of an applicant such engineering studies or information as is necessary for its review of an application.

In connection with each application, the Town Environmental Consultant shall determine the boundaries of a wetland based on field investigation, flagging and survey of the property by the applicant. The Town Environmental Consultant may consult with, and/or may require the applicant to consult with, biologists, hydrologists, soil scientists, ecologists/botanists or other experts as necessary to make this determination.

Alternate member. The Wetlands Control Commission is composed of five members that review, hear and decide cases. This number is reduced when a member cannot attend a meeting of the Wetlands Control Commission or, because of conflict of interest, cannot vote on a matter to be considered by the Wetlands Control Commission, which could affect the quorum of three members needed to conduct official business. The appointment of an alternate member is appropriate to aid in successful planning and will provide assistance to the Wetlands Control Commission when members are unavailable and when members need to recuse themselves. It is the legislative intent of the Town Board to provide for the appointment of an alternate member to the Wetlands Control Commission as a reasonable response to such concerns.

[Added 5-16-2023 by L.L. No. 7-2023]

Appointment. The Town Board is hereby authorized to appoint, by resolution, an alternate member to the Wetlands Control Commission. Such alternate member shall be a resident of the Town of Bedford.

Term. Alternate members of the Wetlands Control Commission shall be appointed for a term of three years.

Duties.

The Chairperson, or the member deputized to chair the meeting in the absence of the Chairperson, shall designate the alternate member to hear and vote on matters and applications coming before the Wetlands Control Commission when a regular member of the Wetlands Control Commission is absent or unable to participate on an application or matter before the Wetlands Control Commission. The Chairperson, or the member deputized to chair the meeting in the absence of the Chairperson, shall also designate an alternate member to vote when a vacancy exists on the Wetlands Control Commission. When so designated, the alternate member shall have the same voting privileges as regular members of the Wetlands Control Commission. All such designations of voting privileges to the alternate member shall be noted in the minutes of the Wetlands Control Commission meeting at which such designations are made.

The alternate member may be allowed to fully participate in all meetings of the Wetlands Control Commission, as members do, at the discretion of the Chairperson, or the member deputized to chair the meeting in the absence of the Chairperson, but cannot vote until designated to do so by the Chairperson, or the member deputized to chair the meeting in the absence of the Chairperson.

All provisions of state law and local law relating to Wetlands Control Commission membership, including but not limited to member eligibility, vacancy in office, removal, compatibility of office and service on other boards, training and continuing education requirements, shall also apply to alternate members, except that alternate members shall not receive compensation.

§ 122-7 Powers and duties of Wetlands Control Commission.

Every decision, recommendation or determination of the Commission shall be filed in the office of the Town Clerk within 10 days and shall be a public record. The Wetlands Control Commission shall have the power to adopt, amend and repeal rules and regulations governing its procedure and transaction of business consistent with the Public Officers Law § 100. All rules and regulations and any amendments or repeal thereof shall take effect immediately upon filing in the office of the Town Clerk, after approval by the Town Board.

The Wetlands Control Commission shall review applications for and take appropriate action on projects submitted within its jurisdiction pursuant to § 122-9 of this chapter.

For each application submitted to the Wetlands Control Commission, the Commission shall, pursuant to the requirements of SEQRA, make a determination of significance of the proposed action and, further, determine appropriateness of acting as the lead agency and any requirement for a draft environmental impact statement when necessary.

The Commission shall have the power to grant or deny permits to conduct activities regulated under this chapter, but only when such permits do not violate the intent and purposes of this chapter.

The Commission shall investigate, review and recommend action upon water conservation and drainage problems referred to it by the Town Board, Planning Board, Zoning Board of Appeals, Building Inspector and Conservation Board and shall coordinate Town of Bedford water resource planning with the planning of adjacent communities, counties and governmental authorities.

The Commission shall endeavor to educate and inform the residents of the Town regarding the provisions of this chapter.

The Commission shall have the power to determine whether a person who has violated any of the provisions of § 122-8 of this chapter shall be required to restore the disturbed area to its original condition and to order such restoration be completed within a time limit as determined by the Commission.

The Commission shall have the power to:

Collect and recommend application fees for permits to conduct activities under this chapter.

When it deems necessary, the Commission may require security in the form of a bond or other form of security acceptable to the Commission as a condition of a permit granted under this chapter to ensure compliance with the terms of the permit.

The Commission may receive and review all minutes of the Conservation and Planning Board meetings and shall supply the Conservation and Planning Boards with minutes of all of the Wetlands Control Commission's meetings.

§ 122-7.1 through § 122-7.4. (Reserved)

§ 122-7.5 Duties of Town Environmental Consultant.

The Town Environmental Consultant shall conduct a site inspection and may require the applicant to stake or otherwise locate in the field all pertinent locations of a proposed activity, including wetlands, watercourses and wetland/watercourse buffer.

The Town Environmental Consultant shall report regularly and meet periodically with the Commission regarding the content and status of applications.

At the request of the Commission, the Town Environmental Consultant:

Will attend meetings and work sessions of the Commission and accompany the Commission on site walk meetings;

Prior to the Commission making its findings on an application in accordance with § 122-10, advise the Commission whether the application, after giving effect to any conditions for approval which the Commission may set, fulfills the requirements for granting a permit;

Will advise the Commission on the status of work contemplated under permits granted by the Commission;

Will otherwise advise and assist the Commission in carrying out its duties under this chapter.

Upon completion of all authorized regulated activities, an applicant shall request a final inspection by the Town Environmental Consultant in order to obtain a certificate of compliance as set forth in § 122-9 of this chapter, certifying that all authorized activities are completed in accordance with the permit granted by the Commission.

§ 122-8 Controlled acts.

Prohibited acts. It shall be unlawful to place or deposit materials or chemical wastes or to introduce influents of sufficiently high thermal or chemical content as to cause deleterious ecological effect in any wetland or the wetland/watercourse buffer, including without limitation, the installation of a septic tank or fields, except as provided for in § 122-8B(3), the running of a sewer outfall or the discharging of sewage treatment effluent or other liquid wastes into or so as to drain into a wetland, watercourse or wetland/watercourse buffer. It shall also be unlawful to locate animal feedlots or pens, manure stockpiles or similar animal storage areas within a wetland, watercourse or wetland/watercourse buffer.

Regulated acts which require a permit. It shall be unlawful to perform any of the following activities in any wetland or within the wetland/watercourse buffer area unless specifically allowed under § 122-8C without a duly issued permit from the Commission:

Place or construct any structure, accessory structure, swimming pool or tennis court. The foregoing shall include, without limitation:

Any related storage or stockpiling of construction materials, use of equipment or machinery or other construction activity;

Renovations or alterations to existing improvements which increase the impervious surface or areal extent of such improvements including walls, driveways, drives or other improvements; and

Installation of pipes or wells or service lines, conduits and cables.

Conduct any form of draining, dredging, dewatering, excavation or removal of material, either directly or indirectly. The foregoing shall include, without limitation, any draining or withdrawing water from streams, ponds or other water bodies within the Town of Bedford.

Conduct any form of dumping, filling or depositing of material, either directly or indirectly. Replacement of an existing septic tank or septic leaching field located within the regulated wetland or wetland buffer is permitted, provided there is no alternative outside of the regulated area.

Alter or grade natural features and contours, alter drainage conditions or divert any flow of a watercourse, water body, marsh or swamp.

Construct docks, dams, other water control devices, pilings or bridges, whether or not they change the ebb and flow of the water.

Install any service lines, cable conduits, pipes or wells.

Construct pervious or impervious driveways or roads.

Cut or remove any healthy plant. The exception to this shall be the removal (by nonmechanical and nonchemical means) of those plants contained on a published and regularly updated list of invasive, nonnative plant species. The list of invasive species shall be the NYSDEC invasive species list, 6 NYCRR Part 575, as modified from time to time.

Deposit or introduce organic or inorganic chemicals including but not limited to fertilizers, pesticides, herbicides and fungicides.

(10)

Conduct any other activity that substantially impairs any of the functions or benefits as described in § 122-2 of this chapter that wetlands provide.

Acts permitted by right. The following acts are permitted by right within wetlands, or the wetland/watercourse buffer area without permit, provided that they do not constitute a pollution or erosion hazard or interfere with proper drainage or adversely affect reasonable water use by others. Such permitted acts must conform to the Town of Bedford Zoning Ordinance.

Normal ground maintenance of existing landscaped areas and residential gardens, including existing lawn areas and trimming and removal of dead or diseased vegetation, or removal of invasive species, as described in § 122-8B(8).

Repair of walkways and walls.

Operation and maintenance of existing dams and water control devices, excluding the adjustment of water elevations over 18 inches in height.

The activities of farmers and other landowners in grazing and watering livestock, fishing and making reasonable use of water resources.

Public health activities, orders and regulations of the Westchester County Department of Health for emergencies only.

Maintenance of existing drainage channels where impedance of flow may cause flooding or threaten public safety on highways or in dwellings or other structures.

Administrative permits. The following improvements and activities related to them are permitted for preexisting single-family residences, upon the issuance of an administrative wetland permit issued by the Wetlands Permit Official, who shall require sufficient information from the applicant to permit a proper evaluation of the permit request, and may require soils or wetlands surveys, topographic surveys, grading or drainage plans, erosion control plans or such other information as the Wetlands Permit Official may require. Prior to issuing an administrative wetland permit, the Wetlands Permit Official, after visiting the site and upon consultation with the Town Environmental Consultant, shall certify that there are no apparent violations or any other conditions at the property that adversely affect the wetlands and that the proposed improvement or activity, after giving effect to any conditions to such permit, will not result in any adverse impact on the wetlands or the wetland/watercourse buffer.

Dry-laid stone walls, containing no mortar or cement, where the wall is designed to permit the passage of small animals by permitting openings at fifteen-foot intervals at least six inches in height above ground level and 12 inches in length, and where the construction of said wall will not inhibit or alter the natural drainage flow or cause the blocking or damming of surface water.

Decks or porches with a footprint of 200 square feet or less located more than 50 feet from a wetland or watercourse, provided that no grading is required for their construction other than for posts or footings.

Emergency repair or reconstruction of sewage disposal facilities, provided that such repairs and maintenance are in kind and in situ replacement or repair of broken, damaged or worn wastewater treatment system components.

Single-story movable sheds, without foundation or footings, with a footprint of 100 square feet or less located more than 50 feet from a wetland or watercourse, provided:

Such sheds are not used for the storage of gasoline, oil, pesticides or other chemicals or toxic substances or any tools, machinery or equipment which use any such substances; and

No grading is required for installation.

Movable play sets or swing sets or other small additions to existing structures, without foundation, with a footprint of 100 square feet or less and located more than 50 feet from a wetland or watercourse, provided no grading is required for installation.

Fences without mesh, provided:

No fence post is to be placed in the streambed or within three feet from the edge of the stream;

The bottom of the fence is to be no lower than 12 inches above seasonal high water of the stream; and

No grading is required for installation.

Field changes to unexpired permits issued by the Commission.

Applications for the first renewal of a wetlands permit or an extension thereof for one year or less, provided:

The application for renewal or extension was filed prior to expiration of the permit;

The original permit application was not the result of a notice of violation; and

The applicable conditions of the permit have been met.

Other activities within 100 feet of a wetland or watercourse where the applicant demonstrates, to the satisfaction of the Wetlands Permit Officer, that there will be no direct or indirect impact associated with the activity, and where the total project cost is estimated to be less than $10,000.

The Wetlands Permit Official shall furnish the Commission at each of its regular monthly meetings copies of each application and permit issued under this section together with any relevant supporting items.

§ 122-9 Permit procedures.

Application for permit. An application for a permit subscribed by the owner or agent shall be filed with the Commission and shall contain the following information:

Name, post office address and telephone number of the owner and the applicant.

Street address and Tax Map designation of the property covered by the application.

Statement with consent from the owner for any agent making application.

Statement of proposed work and purpose thereof.

The owner's permission to allow visits to site.

Plans for the proposed regulated activities shall be submitted, unless otherwise specified by the Commission, drawn to a scale of not less than one inch equals 30 feet (unless otherwise specified by the Commission). The plans shall be certified by an engineer, architect, land surveyor or landscape architect licensed in the State of New York. Plans shall show the following:

The location of all wetlands as determined by a qualified ecologist, botanist and/or soil scientist no earlier than 12 months prior to the date of filing the application.

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

Estimated quantities of material of excavation or fill.

Location of any well and depth thereof and any sewage or wastewater disposal system within 100 feet of the disturbed area.

(e)

Existing and adjusted contours at two-foot intervals in the proposed disturbed area and to a distance of 100 feet beyond.

(f)

Details of any drainage system proposed, both for the conduct of the work and after completion thereof, and measures proposed to control erosion and siltation both during and after the work.

(g)

Where creation of a lake or pond or alteration of a watercourse or wetland is proposed, details of the construction of any dams, embankments and outlets or other water control devices.

(h)

A property location map.

(i)

Where the existing septic system on the property is in wetlands or wetlands buffer, provide evidence of periodic cleaning within the previous two years.

(j)

An appropriate mitigation plan.

(k)

Other details as may be determined to be necessary by the Commission. The Commission shall notify the applicant within 60 days of receipt of an application if such additional information is necessary.

Applications affecting the water-retention capacity, water flow or other drainage characteristics of any pond, lake, reservoir, natural drainage system or wetland shall, upon determination of the Commission, include a statement prepared by a professional engineer licensed in the State of New York of the impact of the project on upstream and downstream areas, giving appropriate consideration to flood or drought levels of watercourses and amounts of rainfall.

Copies of all applicable Town, county, state or federal permits or permit applications which are required for such work or improvement, unless such permits are conditioned upon obtaining a permit under this chapter.

An application fee and engineering and inspection fee in amounts set forth in the fee schedule approved by the Town Board.

Waiver of plan requirements. The plan requirements listed in § 122-9A(6) may be modified by the Commission. This waiver shall not apply to wetlands listed on the State Freshwater Wetlands Map.

Public hearing and notice. Upon receipt of an application, the Commission, at its discretion, may call for a public hearing on any permit or application. The Commission shall fix a reasonable time for the hearings. Notice of the public hearing shall be published at least 10 days prior to the hearing in the official newspaper and shall be mailed by the applicant or appellant at least 10 days prior to the hearing to owners of lots whose property is within 1,000 feet of the controlled area. The expense of publishing and mailing any notice required by this chapter shall be paid by the applicant, and the applicant must file with the Commission an affidavit of mailing with a list of the names of the owners of record of the property within the 1,000 feet of the controlled area, together with the section and lot number of each, with such written notice prior to the public hearing.

Burden of proof. The applicant shall have the burden of proof of demonstrating that the proposed activity is not adverse to the general health, safety or economic and general welfare of the residents of Bedford or its neighboring communities, that it will not degrade the environment nor result in any of the adverse impacts stated in § 122-2, and that the applicant will otherwise suffer undue hardship if a permit is not issued.

Action by the approval authority.

The Commission shall, within 45 days of the filing of a complete application or within 30 days of the date of the closing of any public hearing held pursuant to Subsection C above, whichever date shall be later, render a decision to approve, deny or approve with modifications the application, giving due consideration as specified in § 122-10. In approving any application, the Commission may impose such conditions or limitations as it determines necessary to ensure compliance with the intent, purposes, standards and public policy of this chapter. The Commission shall state upon the record findings and reasons for all actions taken. The Commission may extend the time limitations for decision rendering only when awaiting wetland boundary or classification decisions from the New York State Department of Environmental Conservation. A decision should be rendered no later than 30 days from the receipt by the Commission of such requested information.

Following action by a concurring vote of at least three members of the Commission to approve, deny or approve with modifications any application, a written resolution shall be issued by the Commission to the applicant if it was so decided and filed with the Town Clerk. Said resolution shall record:

The assigned application calendar number.

The name and address of the applicant.

The name and address of the property owner (if different from the applicant).

The address and Tax Map designation of the property.

(e)

The date of the Commission action on the application.

(f)

All conditions placed on the regulated activity.

(g)

The date by which work is to be completed.

(h)

The expiration date of the permit.

Inactive permit applications. All permit applications must be diligently pursued by an applicant. Should any application before the Commission remain inactive for a period exceeding one year without submission of substantive additional written documentation and supplemental information, the application shall be considered withdrawn. Withdrawn applications may be resubmitted as new applications, subject to all fees and review requirements of this chapter.

Certificate of compliance.

Upon the completion of all authorized work conducted pursuant to a permit the applicant shall request that the Town Environmental Consultant make a final inspection thereof to determine compliance.

If the Town Environmental Consultant finds all work has been completed in accordance with the issued permits and the provisions of this chapter, then the Town of Bedford may issue a certificate of compliance relating to such permit.

A certificate of compliance shall be deemed to authorize the initial and continued activity and use affecting a regulated area and resource so long as continued full conformity and compliance are maintained with the terms and conditions of an issued activity permit and the provisions of this chapter.

Expiration of permit.

All permits, unless otherwise indicated, shall expire on completion of the acts specified or, unless otherwise indicated, shall be valid for a period of one year, whichever occurs sooner.

Permits may be renewed by the Commission upon applications submitted at least 60 days before the expiration of the permit. Standards for issuance of renewals shall be the same as for the issuance of permits.

The Building Department shall not give certificate of occupancy approval without prior approval of the Commission for any projects involving a wetland permit.

Inspection. Work conducted under a permit shall be open to inspection at any reasonable time, including weekends and holidays, by the Town Engineer, the Town Environmental Consultant, the Building Inspector or by members of the Commission or their designated representatives. The applicant shall reimburse the Town for the costs of such inspection when incurred by outside consultants hired by the Town for this purpose.

Other permits. Conformance with this chapter does not eliminate the necessity for any applicant to obtain the approval or permits required by any other agencies prior to construction in accordance with the permit. Obtaining such approval or permits is the responsibility of the applicant. No operations shall be initiated until such approvals or permits have been issued.

Fees. Fees for wetlands applications are listed in the fee schedule as adopted by the Town Board.[1]

Editor’s Note: Former Subsection K, Reimbursement for professional consulting services, which immediately followed this subsection, was repealed 3-26-2018 by L.L. No. 2-2018.

§ 122-10 Standards for permit decisions.

Consideration. In granting, denying or conditioning any permit, the Commission shall consider the following:

All evidence offered at or before any public hearing.

All reports from other commissions and/or federal, state or Town agencies.

Additional requested information.

All relevant facts and circumstances, including but not limited to the following:

The environmental impact of the proposed action.

The alternatives to the proposed action.

Irreversible and irretrievable commitments of resources which would be involved in the proposed activity.

The character and degree of injury to or interference with safety, health or the reasonable use of property which is impacted or threatened.

(e)

The suitability or unsuitability of such activity to the area for which it is proposed.

(f)

The effect of the proposed activity with reference to the protection or enhancement of the several functions of wetlands and the benefits they provide which are set forth in § 122-2B of this chapter.

(g)

The appropriate mitigation plan.

The availability of preferable alternative locations on the subject parcel or, in the case of activity of sufficient magnitude, the availability of other reasonable locations.

The availability of further technical improvements or safeguards which could feasibly be added to the plan or action.

The possibility of further avoiding reduction of the wetlands' or watercourses' natural capacity to support desirable biological life, prevent flooding, supply water, control sedimentation and/or prevent erosion, assimilate wastes, facilitate drainage and provide recreation and open space.

The extent to which the exercise of property rights and the public benefit derived from such use may or may not outweigh or justify the possible degradation of the inland wetland or watercourse, the interference with the exercise of other property rights and the impairment or endangerment of public health, safety or welfare.

Preparation of a mitigation plan.

Where the applicant has demonstrated and the Commission has determined that either losses or impacts to the wetland, watercourse or wetland/watercourse buffer are necessary and unavoidable and have been minimized to the maximum extent practicable as determined acceptable by the Commission, the applicant shall be required to prepare and implement a mitigation plan acceptable to the Commission.

The mitigation plan shall be proposed where the applicant has demonstrated and the Commission has determined that either losses or impacts to the wetland, watercourse or wetland/watercourse buffer are necessary and unavoidable and have been minimized to the maximum extent practicable as determined acceptable by the Commission. In instances in which a preexisting septic tank or fields are located within wetlands and/or wetland/watercourse buffer, the Commission may consider mitigation measures which provide for the removal of such tank or fields and creation of new septic tank and/or fields to an area outside of any wetlands and/or wetland/watercourse buffer. Such facilities shall be assessed and designed consistent with the requirements of the New York City Department of Environmental Protection and the Westchester County Health Department.

For the purposes of required mitigation, impacts to wetland/watercourse buffer areas will be viewed as impacts to wetlands and watercourses. On-site mitigation shall be the preferred approach; off-site mitigation shall be permitted only in cases where an on-site alternative is not possible and the applicant has control of the off-site property.

Acceptable mitigation must be provided to minimize impacts to the maximum extent practicable, striving for protection and preservation of wetlands, watercourses and/or wetland/watercourse buffer and the various functions served by those areas within the Town of Bedford. All mitigation plans shall be based on the following order of preference:

Minimization of impacts and disturbance to wetlands, watercourses and wetland/watercourse buffer, in that order.

Preservation of remaining wetlands, watercourses and wetland/watercourse buffer through the dedication and establishment of perpetual conservation easements, development restriction areas, or equivalent.

Restoration or repair of existing damaged wetlands, watercourses and/or wetland/watercourse buffer, including enhancement thereto.

Construction of replacement wetlands, watercourses and buffer areas, that recreate as nearly as possible the original wetlands, watercourses and/or wetland/watercourse buffer in terms of spatial area, type, functions, hydrologic conditions, geographic location and setting.

Any mitigation plan prepared pursuant to this section and accepted by the Commission shall become part of the permit for the application.

A monitoring and inspection schedule for a specified period of time as agreed to by the Commission shall be established and implemented. Town-incurred costs for monitoring and inspection of applicant projects shall be funded by an applicant as required by this chapter.

Findings. No permit shall be issued by the Commission pursuant to this chapter unless the Commission shall find that:

The proposed regulated activity is consistent with the policy of this chapter to preserve, protect and conserve wetlands and the benefits they provide, to prevent the despoliation and destruction of wetlands and to regulate the development of such wetlands in order to secure the natural benefits of wetlands consistent with the general welfare and beneficial economic, social and agricultural development of the Town.

The proposed regulated activity is consistent with the land use regulations governing wetlands applicable in the Town of Bedford.

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

The proposed regulated activity minimizes degradation to or loss of any part of the wetland or its adjacent area and minimizes any adverse impacts on the functions and benefits which said wetland provides.

Wetland acquisition. The Commission shall deny a permit if 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 any 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 the permit lapses.

Effect of violations on approval procedure. No permit application shall be accepted and no permit shall be granted for a property where the Building Inspector has found a violation of this chapter and where such violation has not been corrected; provided, however, that the Commission shall consider a permit application to cure a violation.

§ 122-11 Judicial review.

Any decision of the Commission made pursuant to or within the scope of this chapter may be reviewed at the instance of any person aggrieved by the action in accordance with Article 78 of the State Civil Practice Law and Rules, provided that such review is commenced within 30 days of the filing of such decision or order in the office of the Town Clerk.

§ 122-12 Penalties for offenses; corrective action.

Any person violating any provision of this chapter shall be guilty of a violation and, upon conviction thereof, shall be punished by a fine not to exceed the sum of $250 and/or imprisonment for no more than 15 days, or both. Each day shall constitute a separate and distinct offense, punishable by a like fine or penalty as herein set forth.

Notwithstanding the penalties herein above provided, the Town of Bedford may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of any provision of this chapter.

The foregoing provisions for enforcement of the regulations in this chapter are not exclusive, but are in addition to any and all laws applicable thereto.

In addition to these punishments, any offender may be ordered by the court to restore the affected freshwater wetland to its condition prior to the offense, insofar as that is possible. The court shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the Commissioner or local government.

§ 122-13 Severability.

If any clause, sentence, paragraph, section or part of this chapter shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered.

§ 122-14 Conformity with other laws required.

All acts, whether allowed by right or by permit, must conform to the Town of Bedford Zoning Ordinance.[1]