This chapter shall be known as the "Freshwater
Wetlands, Watercourse and Water Body Law of the Town of LaGrange."
As used in this chapter, the following terms
shall have the meanings indicated:
AGRICULTURAL ACTIVITY
The activity of an individual farmer or other landowner in
grazing and watering livestock, making reasonable use of water resources
for agricultural purposes, harvesting the natural products of wetlands,
selective harvesting of trees, but excluding peat mining. Agricultural
activity does not include clear-cutting of trees, filling or deposition
of spoil, soil mining or draining of wetlands for growing agricultural
products or for other purposes.
APPLICANT
Any person who files an application for any permit issued
by the approval authority pursuant to this chapter; applicants may
include owners, the agent of the owner, or a contract vendee.
APPROVAL AUTHORITY
The administrative board or public official empowered to
grant or deny permits under this chapter. The approval authority shall
be empowered to require posting of bonds, as necessary, and to revoke
or suspend a permit where lack of compliance is established. The approval
authority shall be the Planning Board of the Town of LaGrange.
[Amended 5-10-2000 by L.L. No. 4-2000]
BOARD
The Freshwater Wetlands Appeal Board established under Article
14 of the New York Environmental Conservation Law.
BUFFER AREA
Protective areas surrounding or adjacent to wetlands, watercourses
or water bodies that are subject to regulation. The size or extent
of the buffer areas are defined under "wetland/watercourse/water body
buffer" in this section.
CLEAR-CUTTING
Any cutting of more than 30% of trees four inches or more
in diameter at breast height (4.5 feet) over any ten-year cutting
cycle as determined on the basis of wetland area per lot or group
of lots under single ownership, including cutting of trees which results
in the total removal of one or more naturally occurring species, whether
or not the cut meets or exceeds the 30% threshold.
DEPOSIT
To fill, grade, discharge, emit, dump or place any material.
DISCHARGE
The emission of any water, substance or material into a wetland,
watercourse or water body or their buffers, whether or not such substance
causes pollution.
DOMINANT(S) or DOMINANCE
A dominant species is either the dominant plant species (i.e.,
the only species dominating a vegetative unit) or a codominant species
(i.e., when two or more species dominate a vegetative unit). The measures
of spatial extent are percent area cover for all vegetation units
other than trees and basal area for trees. In this chapter, dominance
refers to the spatial extent of a vegetative species because spatial
extent is directly measurable or discernible in the field.
DRAIN
To deplete or empty of water by drawing off by degrees or
in increments.
DREDGE
To excavate or remove sediment, sand, soil, mud, shells,
gravel or other aggregate.
ECOLOGIST/BOTANIST
A person having special knowledge by reason of education
or experience 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.
FACULTATIVE SPECIES
Vegetative species that can occur in both wetland and upland
systems. There are three subcategories of facultative species: facultative
wetland, straight facultative and facultative upland. Under natural
conditions a facultative wetland species is usually (estimated probability
67% to 99%) found in wetlands, but occasionally in uplands. A straight
facultative species has basically a similar likelihood (estimated
probability of 34% to 66%) of occurring in both wetlands and uplands.
A facultative upland species is usually (estimated probability 67%
to 99%) found in uplands, but occasionally in wetlands. Facultative
species for the Northeast are listed in the "National List of Plant
Species That Occur in Wetlands, New York State; 1988," or as amended
and updated.
FLAGGING
Placement of visible markers at the wetland boundary which,
upon the approval of the Town, may be transferred by a qualified surveyor
onto the site plan or other project map.
GRADING
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing and other modification
of the natural land surface.
HYDRIC SOIL
A soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in its upper portions
and as further defined under "wetland" in this section.
HYDROPHYTIC VEGETATION
Plant life growing in water or on a substrate that is at
least periodically deficient in oxygen as a result of excessive water
content and as further defined under "wetland" in this section.
MUNSELL SOIL COLOR CHART
A soil color designation system that specifies the relative
degree of the three simple variables of color: hue, value and chroma,
produced by the Kollmorgen Corporation, 1975, or as amended and updated.
OBLIGATE UPLAND SPECIES
Plant species that, under natural conditions, always occur
in uplands (i.e., 99% of the time).
OBLIGATE WETLAND SPECIES
Plant species that, under natural conditions, always occur
in wetlands (i.e., greater than 99% of the time).
ORGANIC SOILS/HISTOSOILS
A taxonomic order composed of organic soils (mostly peats
and mucks) that have organic materials in over half the upper 32 inches
unless the depth to rock or to fragmental materials is less than 32
inches (a rare condition) or the bulk density is very low, and as
further defined under "wetland" in this section.
PERSON
Any corporation, firm, partnership, association, trust or
estate; one or more individuals and any unit of government agency
or subdivision thereof.
PLANNING BOARD
The duly appointed Planning Board of the Town of LaGrange.
POLLUTION
The presence of conditions or contaminants in quantities
which are, or may be, injurious to humans, plants, animals or property.
PROJECT
Any collection of actions which may result in direct or indirect
physical or chemical impact on a freshwater wetland, wetland buffer,
watercourse or water body, including but not limited to a regulated
activity.
REGULATED ACTIVITY
Those activities to be conducted in wetlands, wetland buffers,
watercourses or water bodies that require a permit from the Town.
SELECTIVE CUTTING
The annual or periodic removal of trees, individually or
in small group, in order to realize the yield and establish a new
crop and to improve the forest which removal does not involve the
total elimination of one or more species of trees.
SOIL SCIENTIST
A person having special knowledge by reason of education
or experience of the physical, chemical and biological sciences applicable
to the genesis and morphology of soils as natural bodies and of the
methods to describe, classify and map soil units.
STATE AGENCY
Any department, bureau, commission, board or other agency
or public authority of the State of New York.
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
The law promulgated at Article 8 of the New York State Environmental
Conservation Law, and the regulations promulgated thereunder by the
Commissioner of the Department of Environmental Conservation.
STRUCTURE
Anything constructed or erected, the use of which requires
location on or within the ground or attachment to something having
location on the ground, including but not limited to buildings, tennis
courts, swimming pools, as examples.
SUBDIVISION OF LAND
The division of any parcel of land into two or more lots in accordance with the provisions of Chapter
203 of the Town Code of the Town of LaGrange.
TOWN BOARD
The duly elected Town Board of the Town of LaGrange.
TOWN CLERK
The duly elected Town Clerk of the Town of Lagrange.
TOWN ENGINEER
Any person or firm designated by or contracted by the Town
of LaGrange as Town Engineer.
WATER BODY
Any natural or artificial pond, lake, reservoir or other
area which ordinarily contains water, has a discernible shoreline
and an area of one acre or more, but not including a watercourse as
defined in this chapter.
WATERCOURSE
A running stream of water; a natural stream fed from permanent
or natural sources, including rivers, creeks, runs and rivulets. There
must be a stream, generally flowing in a definite channel, having
a bed or banks and usually discharging itself into some other stream
or body of water. It must be something other than mere surface drainage
over the entire face of a tract of land, occasioned by unusual freshets
or other extraordinary causes.
WETLAND
Any area which meets one or more of the following criteria:
A.
Lands and waters that meet the definition provided
in § 24-0107.1 of the New York State Environmental Conservation
Law, "Freshwater Wetlands Act," or as amended and updated. The approximate
boundaries of such lands and waters are indicated on the official
wetlands map promulgated by the Commissioner of the New York State
Department of Environmental Conservation, or as amended and updated.
[Amended 6-26-2002 by L.L. No. 6-2002]
B.
All areas of one acre or more in area that comprise
hydric soils and/or are inundated or saturated by surface or groundwater
at a frequency or duration sufficient to support, and under normal
conditions do support, a prevalence of hydrophytic vegetation as defined
by the Federal Interagency Committee for Wetlands Delineation, 1989,
in the Federal Manual for Identifying and Delineating Jurisdictional
Wetlands, Washington, DC, and adopted by the US Army Corps of Engineers,
US Environmental Protection Agency, and the US Fish and Wildlife Service,
or as amended and updated. Hydric soils referenced above shall include
the soil types taken from the revised Dutchess County Soil Survey
Series, 1991, or such revised, updated and adjusted soil surveys as
may be completed.
WETLAND ADMINISTRATOR
An official(s) designated to enforce this chapter.
[Amended 11-14-2012 by L.L. No. 6-2012]
WETLAND DELINEATION
A.
The process of determining wetlands and their
boundaries. The boundaries of a wetland shall ordinarily be determined
by field investigation, flagging and survey. Identification of the
general location of wetlands shall be aided by reference to:
(1)
The Freshwater Wetlands Map filed with the Clerk
of the Town of LaGrange by the New York State Department of Environmental
Conservation, as amended and updated; and
(2)
The Soils Map of Dutchess County — Soil
Survey Series 1991, or as from time to time updated; and
(3)
Other maps such as the 1990 US Fish and Wildlife
Service Map which may assist in the location and delineation of wetlands.
B.
Wetlands not depicted on any such maps are not
thereby exempted from regulation under the provisions of this chapter.
WETLAND HYDROLOGY
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for a sufficient duration to support
hydrophytic vegetation.
WETLAND PLANTS OF THE STATE OF NEW YORK
The list of obligate and facultative wetland and upland species
developed by the United States Department of Interior, Fish and Wildlife
Service, "National List of Plant Species that Occur in Wetlands, New
York State: 1988," in cooperation with the National and Regional Wetland
Plant List Review Panels, or as amended and updated.
WETLAND/WATERCOURSE/WATER BODY BUFFER
The wetland/watercourse/water body buffer areas surrounding
or adjacent to a wetland, watercourse or water body are also subject
to regulation. The size and extent of the buffers shall be as follows:
A.
For wetlands and water bodies of at least one
acre but less than two acres, the buffer shall be 50 feet. For wetlands
and water bodies of at least two acres but less than three acres,
the buffer shall be 75 feet. For wetlands of three acres and more,
the buffer shall be 100 feet. The buffers cited above may be greater
where designated by either the Commissioner of the DEC or local approval
authority. The buffers shall be measured horizontally and away from
and paralleling the wetland or water body boundary.
B.
The buffer for certain watercourses shall be as described in §
240-31B(1),
(2),
(3) and
(4) of Chapter
240, Zoning, of the Town Code of the Town of LaGrange, to wit, buffer zones of 200 feet on either side of the center lines of Wappingers, Sprout and Jackson Creeks, and such other tributaries as the Town Board may designate.
C.
For all other watercourses, the buffer zone
shall extend to a minimum of 20 feet to either side to the bank of
the stream.
The boundaries of a wetland ordinarily shall
be determined by field investigation. Flagging and subsequent survey
by a licensed land surveyor may be required by the approval authority.
The approval authority may consult and/or may require the applicants
to consult with approved biologists, hydrologists, soil scientists,
ecologists, botanists, legal counsel, engineers, or other experts
necessary to make this determination.
[Amended 5-10-2000 by L.L. No. 4-2000]
The issuance of permits for regulated activities
under this chapter shall be the responsibility of the Planning Board,
which shall be referred all permit applications deemed to be complete
by the Zoning Administrator. Applications for permits for regulated
activities shall be filed with the Zoning Administrator.
[Amended 5-10-2000 by L.L. No. 4-2000]
A. No person shall undertake, permit, conduct or cause
to be conducted a regulated activity in a wetland, watercourse, water
body or buffer area without applying for and obtaining a written permit
as provided for in this chapter.
B. Application procedure; preapplication consultation.
The applicant, prior to filing an application for a permit under the
provisions of this chapter, will consult with the Zoning Administrator
on the compliance requirements related to wetlands, watercourses and
water bodies as well as application procedures for the Town of LaGrange.
The applicant shall describe the general nature of the proposed project
as it relates to this chapter.
C. Application for a wetlands/watercourse/water body
permit.
(1) The applicant shall file with the Wetlands Administrator
an application, in such form and with such information as the approval
authority shall prescribe along with the required application fee.
The application fee shall be in an amount as set forth on the prevailing
fee schedule adopted by resolution of the Town Board and as such schedule
is modified from time to time by resolution of the Town Board. At
a minimum, the following information shall be required:
[Amended 7-22-2009 by L.L. No. 2-2009]
(a)
A written explanation of why the proposed activity
cannot be located at another site, i.e., out of the wetland, watercourse,
water body or buffer areas.
(b)
Applications affecting the water retention capacity,
water flow, or other drainage characteristics of any wetland, watercourse
or water body shall include a statement of the impact of the project
on upstream and downstream areas giving appropriate consideration
to flood and drought levels and the amount of rainfall.
(c)
A map showing all wetlands, watercourses, water
bodies and buffer areas on the site under review and within 200 feet
of the site boundaries.
(d)
A description of the vegetative cover of the
area, including dominant species.
(e)
A description of the soil types on the site.
(f)
Where creation of a lake or pond is proposed,
details of the construction of any dams, embankments, outlets or other
water control devices and an analysis of the wetland hydrologic system
including seasonal water fluctuation, inflow/outflow calculations
and subsurface soil, geology and groundwater conditions.
(g)
An environmental assessment form under SEQRA.
(2) Additional information. The approval authority may
require additional information in order to make a determination on
the application. Additional information may include, but shall not
be limited to, a schedule and sequence of proposed activities and
the type of equipment to be used, the study of flood, erosion and
other hazards at the site, and any other information deemed necessary
to evaluate the proposed use in terms of the standards of this chapter.
(3) Filings shall be maintained on file in the office
of the Zoning Administrator.
D. Transmittal of the application. Upon completion of
the application, the approval authority shall transmit a copy of the
application to:
(1) The Conservation Advisory Council; and
(2) In the case of a regulated activity within 500 feet
of the Town line on a watercourse that crosses a Town line, or any
regulated activity on a wetland that crosses the Town line, to the
clerk of the abutting Town.
E. Public hearings. A public hearing shall be conducted
upon public notice published in the Town's official newspaper and
posted in a conspicuous place at the LaGrange Town Hall, each to occur
at least 10 days before the date designated for the public hearing.
In granting or denying or conditioning any application
for a permit, the approval authority shall consider the following:
A. All evidence offered at any public hearing.
B. Any reports from other environmental councils, boards
or commissions and/or federal, county, state or Town agencies.
C. The environmental impact of the proposed action.
D. Irreversible and irretrievable commitments of natural
resources that would be involved in the proposed activity.
E. The suitability or unsuitability of the activity to
the area for which it is proposed.
F. The effect of the proposed activity to the protection or enhancements of functions of wetlands, watercourses and water bodies and the benefits they provide as set forth in §
124-4 of this chapter.
G. The possibility of avoiding further reduction of the
wetlands', watercourses', or water bodies' natural capacity to support
desirable biological life, prevent flooding, supply water, control
sedimentation, prevent erosion, assimilate wastes, facilitate drainage
and provide recreation and open space.
H. The extent to which the exercise of property rights
and the public benefit to be derived from such use may or may not
outweigh or justify the possible degradation of the wetland, watercourse
or water body, the interference with the exercise of other property
rights and the impairment or endangerment of public health, safety
and welfare.
I. Whether the property is grandfathered by virtue of
approvals predating the adoption of Article 24 of the Environmental
Conservation Law, and the extent to which it might be deemed unfair
or unreasonable to regulate wetlands under this chapter to limit development
which is accordingly grandfathered from state regulation.
[Added 5-10-2000 by L.L. No. 4-2000]
J. The comments of the Zoning Administrator, which shall
be submitted in writing to the Planning Board.
[Added 5-10-2000 by L.L. No. 4-2000]
Any permit issued pursuant to this chapter may
be issued with conditions to assure the preservation and protection
of affected wetlands, watercourses and water bodies, and compliance
with the policy and provisions of this chapter.
No permit granted pursuant to this chapter shall
remove an applicant's obligation to also comply in all respects with
the applicable provisions of any other federal, state or local laws
or regulations, including but not limited to, the acquisition of any
other permit or approval.
[Amended 11-14-2012 by L.L. No. 6-2012]
A. Violations.
(1) Unless exempted under §
124-7B, it shall be unlawful to conduct any regulated activity, as described in §
124-7C, in a wetland, watercourse, water body or buffer area without a permit issued pursuant to this chapter.
(2) It shall be unlawful to conduct a prohibited activity, as described in §
124-7D, in a wetland, watercourse, water body or buffer area.
(3) It
shall be unlawful to conduct any activity in a wetland, watercourse,
water body or buffer area in a manner which deviates from an approved
wetlands permit unless previously approved, in writing, by the approval
authority who issued the permit.
B. Penalties
for offenses.
(1) Any
violation of this chapter is an offense punishable by:
(a) A fine not exceeding $1,000 or imprisonment for a period not to exceed
15 days, or both, for conviction of a first offense;
(b) A fine of not less than $1,000 nor more than $5,000 or imprisonment
for a period not to exceed 15 days, or both, for conviction of a second
offense, both of which offenses were committed within a period of
five years; and
(c) A fine of not less than $2,000 nor more than $15,000 or imprisonment
for a period not to exceed 15 days, or both, upon conviction of a
third or subsequent offense, all of which offenses were committed
within a period of five years.
(2) Each
day that a violation continues shall constitute a separate offense.
In order to carry out the purposes and provisions
of this chapter, and in addition to the provisions specified elsewhere
in this chapter, the following general provisions shall apply:
A. Severability. The provisions and sections of this
chapter shall be deemed to be severable and the invalidity of any
portion of this chapter by a court of competent jurisdiction shall
not affect the validity of the remainder of this chapter.
B. The applicant, and the owner of the property which is the subject of an application for a permit under this chapter, shall be responsible for the actual consultant fees incurred by the Town in the review of the application, and the provisions of §
240-88 of the LaGrange Town Code shall apply procedurally and substantively to define this responsibility.