[HISTORY: Adopted by the Town Board of the
Town of Greenburgh 6-25-2003 by L.L. No. 9-2003.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Environmental quality review — See Ch. 200.
Excavations and soil removal — See Ch. 210.
Flood damage prevention — See Ch. 220.
Fees — See Ch. 230.
Subdivision regulations — See Ch. 250.
Watercourse protection — See Ch. 270.
Zoning — See Ch. 285.
Conservation Advisory Council — See Ch. 520.
Protection of endangered species — See Ch. 566.
[1]
Editor's Note: This local law also repealed
former Ch. 280, Freshwater Wetlands, adopted 8-31-1976 by L.L. No.
8-1976, as amended.
This chapter is entitled the "Wetlands and Watercourses
Law."
A.
The Town Board of the Town of Greenburgh has determined
that the public interest, health, safety and the economic and general
welfare of the residents of the Town 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, pollution or elimination.
B.
The Town Board finds that growth, the spread of development
and increasing demands upon natural resources have the potential of
encroaching upon, despoiling, polluting or eliminating many of the
wetlands, ponds and streams, watercourses, rainfall-drainage systems
and water-retention areas and other natural resources in the Town
and associated processes which, if preserved, constitute important
physical, economic, social, aesthetic, ecological and recreational
assets to the Town and its present and future residents.
C.
In their natural condition and state, wetlands and
watercourses are valuable natural resources and may serve multiple
functions, including but not limited to:
(1)
Removing pollutants from surface waters by trapping
sediment, removing nutrients and detoxifying chemicals;
(2)
Recharging groundwater, including aquifers, and surface
waters, thereby maintaining stream flows needed by plants and animals
to survive;
(3)
Controlling flooding by storing and then slowly releasing
stormwater runoff;
(4)
Stabilizing shorelines by protecting against erosion
caused by stream currents and waves;
(5)
Providing unique or essential habitat for diverse
fish and wildlife species, including many of those on the New York
State and federal lists of special concern, threatened, rare and endangered
species;
(6)
Supporting unique vegetative and biotic associations
specifically adapted for survival in low-oxygen environments and/or
brackish or salt water;
(7)
Providing areas of comparatively high plant productivity
which support wildlife diversity and abundance;
(8)
Providing open space and visual relief from intense
development in urbanized and growing areas;
(9)
Providing recreational opportunities, including fishing,
nature study, hiking and wildlife watching;
(10)
Serving as outdoor laboratories and living classrooms
for the study and application of biological, natural and physical
sciences.
(11)
Protecting and maintaining the stability of stream
and watercourse channels, shorelines and banks, thereby controlling
and reducing erosion, flooding and related property damage, protecting
reservoirs and watersheds vital to the community and to the water
supply of the county and New York City.
D.
In addition, sufficiently wide naturally vegetated
wetland buffers improve water quality by filtering out non-point source
pollutants (polluted stormwater), lower stream temperatures, serve
as visual and noise barriers for wildlife, control erosion, lessen
impacts from flooding, provide transitional habitats and improve floral
and faunal habitat diversity.
E.
Considerable acreage of these important natural resources
has been lost or impaired by draining, dredging, filling, excavating,
building, polluting, and other acts inconsistent with the natural
uses of such areas. Loss or impairment of wetlands and their ecosystems
can cause or aggravate floodings, erosion, degradation and diminution
of water supply for drinking and waste treatment. Remaining wetlands
are in jeopardy of being lost, despoiled, or impaired by such acts,
contrary to public safety and welfare.
F.
It is therefore the policy of the Town of Greenburgh
to protect its citizens, including future generations, by preventing
the despoliation and destruction of wetlands and watercourses while
taking into account varying ecological, water quality, economic, recreational,
and aesthetic values. Activities that may damage the functions or
cause the loss of wetlands and watercourses should be avoided.
It is the intent of the Town of Greenburgh to
control, protect, preserve, conserve and regulate wetlands, watercourses
and adjacent (buffer) areas within the Town so as to not hinder the
benefits set forth in the legislative findings. Activities in and
around wetlands, watercourses and their buffer areas must conform
with all applicable building codes, sediment control regulations,
and other regulations, so that such activities do not threaten public
safety, the natural environment, or cause nuisances by:
A.
Impeding flood flows, reducing flood storage areas
or destroying storm barriers, thereby resulting in increased flood
heights, frequencies, or velocities on other lands;
B.
Increasing water pollution through location of domestic
waste disposal systems in wet soils; inappropriate siting of stormwater
control facilities; unauthorized application of fertilizers; pesticides;
herbicides and algaecides; disposal of solid wastes at inappropriate
sites; creation of unstabilized fills; or the destruction of wetland
soils and vegetation serving pollution and sediment control functions;
C.
Increasing erosion;
D.
Decreasing breeding, nesting, and feeding areas for
many species of waterfowl and shorebirds, including those rare and
endangered;
E.
Interfering with the exchange of nutrients needed
by fish and other forms of wildlife;
F.
Decreasing habitat for fish and other forms of wildlife;
G.
Adversely altering the recharge or discharge functions
of wetlands, thereby impacting ground water or surface water supplies;
H.
Significantly altering the wetland hydroperiod and
thereby causing either short- or long-term changes in vegetational
composition, soils characteristics, nutrient recycling, or water chemistry;
I.
Destroying sites needed for education and scientific
research, such as outdoor biophysical laboratories, living classrooms,
and training areas;
J.
Interfering with public rights in navigable waters
and the recreation opportunities provided by wetlands for fishing,
boating, hiking, bird watching, photography, camping, and other passive
uses; or
K.
Destroying or damaging aesthetic and property values,
including significant public vistas.
A.
Applicability. This chapter shall apply to all land defined as "wetland," "watercourse" or "wetland/watercourse buffer" in § 280-5. This chapter establishes those activities which must be regulated due to the potential adverse effects of such activities.
B.
Rules for establishing and interpreting wetland boundaries.
The boundaries of a wetland or watercourse ordinarily shall be determined
by field investigation, and delineation by a qualified environmental
professional and subsequent survey by a licensed land surveyor unless
the last is waived by the approval authority. The approval authority
may consult, and/or may require the applicant to consult, with the
Town's wetland scientist, and/or additional biologists, hydrologists,
soil scientists, ecologists/botanists, or other experts as necessary
to make this determination of wetland boundaries. The Planning Board
is the ultimate authority for determination of wetland or watercourse
boundaries.
C.
Grandfathered projects. The provisions of this chapter
shall not apply to any land use, improvement or development which
has received final approval and has been physically completed, i.e.,
actually completed, including, but not limited to, filling, erecting
structures or other improvement activities, as defined in this chapter
prior to the effective date of this chapter.
D.
Current projects. A regulated activity that was approved
prior to the effective date of this chapter and to which significant
economic resources have been committed but which is not in conformity
with the provisions of this chapter may be continued, subject to the
following:
(1)
All such activities shall continue to be governed
by the laws of the Town in effect at the time of approval.
(2)
No such activity shall be expanded, changed, enlarged,
or altered in such a way that increases its nonconformity without
a permit.
(3)
If a nonconforming activity is discontinued for six
consecutive months, any resumption of the activity shall conform to
this chapter.
(4)
If any nonconforming use or activity is destroyed
by human activities or a natural catastrophe, it shall not be resumed
except in conformity with the provisions of this chapter.
(5)
Activities or adjuncts thereof that are or become
nuisances shall not be entitled to continue as nonconforming activities.
Words or phrases used in this chapter shall be interpreted as defined below, and as defined in § 285-5 and § 250-3 and, where ambiguity exists, words or phrases shall be interpreted so as to give this chapter its most reasonable application in carrying out the regulatory goals as set forth in the legislative findings:
See "wetland/watercourse buffer."
A person who files an application for a permit under this
chapter and who is either the owner of the land on which the proposed
regulated activity would be located, a contract vendee, a lessee of
the land, the person who would actually control and direct the proposed
activity, or the authorized agent of such person.
The municipal or administrative board, public official or
public employee empowered to grant or deny permits under this chapter,
to require the posting of bonds as necessary, and to revoke or suspend
a permit where lack of compliance to the permit is established. The
approval authority for the Town of Greenburgh shall be the Planning
Board or the Wetland Inspector.
The cultivating and harvesting of products, including fish
and vegetation, that are produced naturally in freshwater wetlands,
and including the installation of cribs, racks, and other in-water
structures for cultivating these products; but does not include filling,
dredging, peat mining, clear cutting, or the construction of any buildings
or any water-regulating structures such as dams.
The outer limit of the soils and/or vegetation as defined
under "wetland."
Written form issued by the Wetlands Inspector indicating
whether or not a permit is required.
The removal of 20% or more of live woody vegetation during
any consecutive ten-year period within any wetland/watercourse and/or
regulated adjacent area (the regulated one-hundred-foot upland perimeter
of a wetland boundary) located on the subject property.
To construct a new wetland, often by excavating and/or flooding
land not previously occupied by a wetland.
Barriers used, or intended to, or which, even though not
intended in fact do, obstruct the flow of water or raise, lower, or
maintain the level of water.
To fill, grade, discharge, emit, dump, or place any material
or the act thereof.
Any building activity or mining operation, the making of
any material change in the use or intensity of use of any structure
or land and the creation or termination of rights of access or riparian
rights, including, without limitation, the following activities or
uses:
A change in type of use of structure or land
or, if the ordinance or rule divides uses into classes, a change from
one class of use designated in an ordinance or rule to a use in another
class so designated;
A material increase in the intensity of use
of land or environment impacts as a result thereof;
Commencement of mining, excavation or material
alteration of grade or vegetation on a parcel of land, excluding environmental
restoration activities;
Material alteration of a shore, bank or floodplain
of a river, stream, lake, pond, or artificial body of water;
Reestablishment of a use which has been abandoned
for one year;
Departure from the normal use for which development
permission has been granted, or material failure to comply with the
conditions of an ordinance, rule or order granting the development
permission under which the development was commenced or is continued.
The emission of any water, substance, or material into a
wetland or wetland buffer, whether or not such substance causes pollution.
A dominant species is either the predominant plant species
(i.e., the most conspicuous species occupying a vegetative unit) or
a co-dominant species (i.e., a species which is as prevalent as one
or more other species, considered collectively, that occupy most of
the area within when two or more species dominate a vegetative unit).
Dominant species are considered to be those with 20% or more areal
coverage or spatial extent within the vegetative unit or plant community.
To deplete or empty water by drawing off by degrees or in
increments.
To excavate or remove sediment, soil, mud, sand, shells,
gravel, or other aggregate.
To dig out and remove any material from a wetland, watercourse
or wetland/watercourse buffer.
Plant species that can occur with equal frequency in uplands
and wetlands.
Plant species that usually occur in uplands at an estimated
probability of 67% to 99%, but may occasionally occur in wetlands
at an estimated probability of 1% to 3%.
Plant species that usually occur in wetlands at an estimated
probability of 67% to 99%, but occasionally are found in uplands.
See "deposit."
The final freshwater wetlands maps for Westchester County
promulgated by the Commissioner of the New York State Department of
Environmental Conservation pursuant to Subdivision 24-0301.5 of the
New York State Freshwater Wetland Act,[1] or such map as has been amended or adjusted, and on which
are indicated the approximate locations of the actual boundaries of
wetlands regulated pursuant to Article 24 of the Environmental Conservation
Law.
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing, and other modification
of the natural land surface.
The portion of the year when soil temperatures are above
biologic zero (5º C.); the growing season for Westchester County
is March through October.
A soil that is described in the Soil Survey of Putnam and
Westchester Counties, New York (1994) as "somewhat poorly drained,"
"poorly drained" or "very poorly drained." Under normal circumstances
hydric soils are inundated or saturated to within 16 inches of the
surface during the growing season. Hydric soils exhibit diagnostic
colors or mottled features as described in the Corps of Engineers
Wetlands Delineation Manual (Environmental Laboratory Technical Report
Y-87-1).
Vascular plant species that are adapted to growing in inundated
soils or soils saturated within 18 inches of the surface for extended
periods of time during the growing season. Hydrophytic vegetation
includes obligate wetland, facultative wetland and in some cases facultative
species as defined in this section.
Any activity or activities which require a permit under this
chapter, where the approval authority is the Planning Board. In situations
where multiple applications are involved for a specific project, if
at least one activity constitutes a "major project," as defined herein,
then each proposed activity for each multiple application concerning
such specific project shall be treated as a major project, notwithstanding
anything contained herein to the contrary.
Liquid, solid, or gaseous substances, including but not limited
to soil, silt, gravel, rock, clay, peat, mud, debris, and refuse;
any organic or inorganic compound, chemical agent or matter; sewage
sludge or effluent; or industrial or municipal solid waste.
An activity or activities requiring a wetlands permit where
the approval authority is the Town Wetlands Inspector and where said
activity is to be performed without the use of mechanical earthmoving
equipment and will not disturb wetlands, water bodies, adjacent areas
or natural drainage systems. A minor project includes any activity
which is to be performed on an individual residential single-family
building lot containing an existing residence (for which, in this
instance, the use of mechanical earthmoving equipment shall be permitted);
provided, however, that such activities shall not take place within
any portion of any wetlands, water bodies or natural drainage systems
and provided also that such activities do not require the excavation
of more than 100 cubic yards or disturb more than 5,000 square feet
of any adjacent areas.
The plan prepared by the applicant in accordance with § 280-10 when the applicant has demonstrated that either losses or impacts to the wetland or wetland buffer are necessary and unavoidable and have been minimized to the maximum extent practicable.
That form of written Town approval required by this chapter
for the conduct of a regulated activity within a wetland, watercourse
or wetland/watercourse buffer.
See "applicant."
Any harmful thermal effect or the contamination or rendering
unclean or impure of any wetland or waters by reason of erosion, or
by any waste or other materials discharged or deposited therein.
Any proposed or ongoing action which may result in direct
or indirect physical or chemical impact on a wetland or watercourse,
including but not limited to any regulated activity.
To dig, dredge, suck, bulldoze, dragline, blast, or otherwise
excavate or grade, or the act thereof.
Any alteration of the physical, chemical, or biological properties
of any wetland or waters, including but not limited to change in odor,
color, turbidity, or taste.
To reclaim a disturbed or degraded wetland to bring back
one or more functions that have been partially or completely lost
by such actions as draining or filling.
Any cutting of trees within the boundaries of a wetland or
wetland/watercourse buffer that is not clear cutting as defined in
this section.
Article 8 of the New York State Environmental Conservation
Law and 6 NYCRR Part 617.
Anything constructed or erected, the use of which requires
location on or in the ground or attachment to something having location
on the ground, including but not limited to buildings, tennis courts,
and swimming pools.
Plant species that, under natural conditions, almost always
occur in uplands at an estimated probability of 99% or greater. The
less-than-one-percent probability of upland species occurring in wetlands
is attributed to unnatural circumstances (i.e., occurrences that are
the result of human-induced disturbances and transplants). Upland
species UPL for New York State are listed in "Wetland Plants of the
State of New York 1986," published by the U.S. Fish and Wildlife Service
in cooperation with the National and Regional Wetland Plant List Review
Panels and as updated from time to time.
An open area of surface water formed in a shallow basin within
an upland that retains a minimum depth of six inches for three to
four months during the growing season (usually March through June)
and contains amphibians (adults, egg masses, or larval stages) during
the growing season. Vernal pools are devoid of fish and are the exclusive
breeding habitats of several amphibians that are becoming increasingly
rare throughout the northeast.
Any natural or artificial, intermittent, seasonal or permanent,
and public or private water body or water segment. A water body is
intermittently, seasonally or permanently inundated with water and
contains a discernible shoreline and includes ponds, lakes and reservoirs.
A watercourse includes rivulets, brooks, creeks, streams, rivers and
other waterways flowing in a definite channel with bed and banks and
usually in a particular direction.
The zone of saturation at the highest average depth during
the wettest season.
All areas that comprise hydric soils and/or are inundated
or saturated by surface or groundwater at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of hydrophytic vegetation as defined by the Corps of
Engineers Wetlands Delineation Manual (Environmental Laboratory Technical
Report Y-87-1). Wetland areas include vernal pools, wet meadows, marshes,
swamps, bogs and similar wet areas.
The administrative official appointed by the Town Board to
fulfill the responsibilities set forth in this chapter and having
special knowledge by reason of education and work related to the identification,
delineation, functional assessment and management of wetlands, including
a detailed knowledge of wetland flora and fauna and wetland hydrology
to a degree acceptable to the approval authority.
Those plant species listed in the National List of Plant
Species That Occur In Wetlands: Northeast (1988), that are classified
as facultative, or facultative wetland, obligate wetland species developed
by the U.S. Department of the Interior, Fish and Wildlife Service,
for the National Wetland Inventory, as amended and updated from time
to time.
A person having specialized or expert knowledge of the physical,
chemical and biological sciences related to the identification, delineation
and structural and functional ecology of wetlands and associated upland
communities, including flora and fauna; and of methods to delineate
and describe wetland and watercourse resources, communities and habitats.
This person must possess a minimum of two years' field experience
in wetland/watercourse delineation and wetland/watercourse report
preparation and must hold at least a bachelors degree, with a minimum
of 30 semester hours (credits), or equivalent, in biology, physical
science and chemistry, with a minimum of eight semester hours (credits),
or equivalent, in botany, including field identification of animal
and plant species. Individuals who do not meet the above minimum qualifications
but who possess at least 10 years' experience identifying and mapping
native vegetation are qualified if they have completed at least 12
semester hours (credits), or equivalent, in botany, including field
identification of animal and plant species.
The area of land extending 100 feet horizontally away from
and parallel to the outermost boundary of a wetland and/or point of
mean high water of a watercourse. The wetland/watercourse buffer may
be greater than 100 feet where designated by either the Commissioner
of the New York State Department of Environmental Conservation or
the local approval authority. The wetland/watercourse buffer provides
several ecological benefits to the wetlands/watercourse and some degree
of protection from human encroachment associated with development.
The wetland/watercourse buffer shall be subject to the regulations
for wetlands as defined in this chapter.
[1]
Editor's Note: See Environmental Conservation
Law § 24-0301, Subdivision 5.
A.
All applications for any permit issued by the Building
Department, Department of Public Works, Antenna Review Board, Town
Board, Planning Board, or Zoning Board of Appeals of the Town of Greenburgh
must be accompanied by an authorized wetland/watercourse clearance
form. An applicant must provide sufficient information to enable the
Wetland Inspector or other authorized representative to properly determine
if the proposed activity is an allowable activity, as defined herein,
or use that does not also require an activity permit; is a prohibited
activity; or is a regulated activity or use which requires an activity
permit as issued by the Planning Board in accordance with the standards
and procedures set forth herewith. No permits, certificates of occupancy,
or temporary certificates of occupancy may be issued without prior
approval of the Planning Board for any project involving a wetland/watercourse
permit.
B.
False or misleading statements or information provided
in a clearance form or to the approval authority shall result in the
invalidation of any authorization. The applicant shall be subject
to the penalties and sanctions set forth in this chapter for any activities
conducted which would have otherwise required a wetland/watercourse
activity permit.
C.
The Wetland Inspector or other authorized representative
may require an applicant to provide additional information, including
but not limited to a qualified wetland delineation, report and survey,
to assist in making such a determination; and may further defer the
making of said determination to the Planning Board.
D.
Upon submission of a completed clearance form by an
applicant, the Wetland Inspector or other authorized representative
must determine one of the following, provided the proposed activity
is not prohibited pursuant to this chapter:
(1)
That the proposed activity or use is an allowable
activity or use pursuant to this chapter, and no wetland/watercourse
permit is required. The Wetland Inspector shall sign and issue a wetlands/watercourse
clearance form indicating same.
(2)
That the proposed activity or use does not impact
or occur within a wetland/watercourse or adjacent (buffer) area, and
no wetland/watercourse permit is required. The Wetland Inspector shall
sign and issue a wetlands/watercourse clearance form indicating same.
(3)
That a wetland/watercourse permit is required in accordance
with the standards and procedures set forth in this chapter.
A.
Allowable activities not requiring permit. The following activities
shall be permitted as-of-right within a wetland, watercourse, or wetland/watercourse
buffer, and do not require a wetland/watercourse permit to the extent
that they are not prohibited by this or any other ordinance, law,
local law, rule or regulation; and to the extent that they do not
constitute a pollution or erosion hazard or interfere with proper
drainage; and provided they do not require structures, grading, fill,
draining, or dredging. Depending upon the extent of the proposed work,
topography and other environmental factors, the Town Wetlands Inspector
shall have the authority to issue a conditional approval of a clearance
form, in order to protect wetlands, watercourses and wetland/watercourse
buffer areas, to prevent wildlife habitat fragmentation and to protect
habitat connectivity.
[Amended 9-9-2015 by L.L.
No. 11-2015]
(1)
An approved clearance form must be obtained before any of the following
activities are commenced:
(a)
The cutting of less than 20% of trees in the cumulative area of a wetland, watercourse and/or wetland/watercourse buffer on an individual property over a consecutive ten-year period, provided that no tree has a diameter at breast height of more than four inches (12.5-inch circumference), and provided that stumps are left in place and work is accomplished without the assistance of any motorized vehicles. However, a tree removal permit may be required under § 260-2, Prohibited acts; application for removal.
(b)
Routine maintenance activities to an existing stormwater management
facility involving less than 500 square feet of soil disturbance and
which are performed to maintain the original line and grade, hydraulic
capacity or original purpose of such facility.
(c)
Installation of post-and-rail fencing, or similar fencing, in
a wetland/watercourse buffer area, provided the posts are a minimum
of four feet apart and the rails are a minimum of three feet apart,
and provided the lowest rail is a minimum of two feet above grade.
(d)
Direct application of "selective" herbicides, pesticides or
fertilizers in a wetland/watercourse buffer, where such application
is performed by hand in accordance with manufacturers' recommendations
and accepted horticultural practices, for the purpose of controlling
invasive vegetation and supporting native plant growth. Such application
must be performed in a manner which would not negatively impact unintended
vegetation, wetlands, watercourses or soils.
(e)
Agricultural activities as set forth in ECL § 24-0701(4).
(2)
An approved clearance form is not required before any of the following
activities are commenced:
(a)
"In kind" repair or replacement of sidewalks, walkways, stairwells, terraces, patios, driveways, roadways or other paved areas, fences, walls, decks, in-ground pools and tennis courts, provided that the height, size and/or spatial extent (i.e., no increase in the area beyond the existing footprint) of the affected area does not change and where appropriate stormwater pollution prevention control measures, including, but not limited to, silt fencing and haybales, as required by § 248-8, are installed and maintained during the course of work;
(b)
"In kind" restoration of preexisting structures partially or
entirely destroyed by casualty loss after the effective date of this
chapter, provided that such "in kind" restoration occurs within 36
months of the date of loss; provided, however, that should the thirty-six-month
period be exceeded, an approved clearance form must be obtained;
(c)
Installation of native landscape plantings in a wetland/watercourse
buffer resulting in less than 500 square feet of soil disturbance;
(d)
Normal ground maintenance of existing landscaped areas, including mowing, trimming of existing vegetation and removal of invasive, dead or diseased vegetation around a residence within a wetland/watercourse buffer, excluding the use of fertilizers, pesticides, and herbicides. However, a tree removal permit may be required under § 260-2, Prohibited acts; application for removal;
(e)
Installation of signage, telephone and electric poles and other
kinds of posts or poles, within a wetland/watercourse buffer;
(f)
The existing yearly activities of farmers and other landowners
in growing of crops that directly produce agricultural products, provided
that there is no increase in the area of such activities beyond that
which already exists;
(g)
Construction and repair of sluices and culverts by the Department
of Public Works, in accordance with § 140 of the New York
State Highway Law;
(h)
Maintenance, repair, replacement or rehabilitation of existing public structures or facilities, provided that the height, size and/or spatial extent (i.e., no increase in the area beyond the existing footprint) of the affected area does not change and where appropriate stormwater pollution prevention control measures, including, but not limited to, silt fencing and haybales, as required by § 248-8, are installed and maintained during the course of work;
(i)
Emergency activity immediately necessary to protect life, property
or natural resources, as determined by the Town Engineer, Commissioner
of Department of Public Works, Building Inspector, and/or Commissioner
of Department of Community Development and Conservation; provided,
however, in the case of an emergency declared by the federal, New
York State, Westchester County, or Town government, during the course
of such an emergency an activity may be undertaken to remedy any situation
which poses an imminent risk of personal injury or property damage
to a principal or accessory structure. In the event of an emergency
action taken without the prior determination of a Town official, the
individual who took or authorized the taking of such action shall,
within 10 days following the termination of the declared emergency,
report, in writing, the action to the Commissioner, Department of
Community Development and Conservation, together with supporting photographs
and other information, and shall be subject to such mitigation action
consistent with the Town Code as shall be determined by the Commissioner;
(j)
Public health activities, orders, and regulations of the Federal
Emergency Management Agency, New York State Department of Health and/or
the Westchester County Department of Health for emergencies, only
with notification to the Town Engineer, Commissioner of Department
of Public Works, Building Inspector, and/or Commissioner of Department
of Community Development and Conservation.
B.
Prohibited activities. All activities that are not
specifically permitted or regulated by permit shall be prohibited.
Prohibited activities include but are not limited to the following:
(1)
Placement of a sewage disposal tank or plant or septic
field within a wetland or watercourse;
(2)
Direct discharge of untreated stormwater into a wetland
or watercourse;
(3)
The placement of aboveground or underground chemical
storage facilities or bulk petroleum storage tanks within a wetland,
watercourse or adjacent buffer area; and/or
(4)
Deposit or fill consisting of construction and demolition
materials, asphalt or other materials within a wetland, watercourse
or adjacent buffer area.
C.
Regulated activities: any activity or use within a
wetland, watercourse or wetland/watercourse buffer, other than those
specified herein, and may be permitted only upon issuance of a permit
from the approval authority.
A.
Permit procedures. Where any alteration or activity is proposed on any lot which is within or contains within it a wetland, watercourse or wetland/watercourse buffer, the Town's Wetland Inspector must determine whether such an area is subject to the regulations set forth herein and a clearance form and/or permit obtained. The initial burden of proof and expense shall be upon the applicant to verify the presence and/or extent of a wetland, watercourse or buffer on the subject property. The finite areas of wetlands, watercourses and/or wetland/watercourse buffers shall ultimately be determined by the Planning Board pursuant to the criteria set forth herein after consultation with the Town's Wetland Inspector. All costs incurred by the Town for purposes of review and verification in accordance with this chapter are to be borne by the applicant in accordance with this chapter, SEQRA and/or Chapter 230.
B.
Permit application contents for minor projects.
(1)
Where an applicant proposes a minor project that is not referred to the Planning Board by the Town's Wetland Inspector, application submission requirements as set forth in Subsection C may be waived in part, at the discretion of the Town Wetlands Inspector and with the approval of the Planning Board, if all of the following conditions are met:
(a)
Request for utilization of this process shall
be in writing and clearly state the reasons in support of such request,
in order to allow the Wetlands Inspector to determine that the granting
of any such request is no less protective of wetlands, watercourses
and adjacent (buffer) areas.
(b)
The proposed activity, taken as a whole, must
constitute a Type II action pursuant to SEQRA.
(c)
The Town Wetlands Inspector must report to the
Planning Board on each minor application received and the basis for
the proposed determination.
(2)
All required fees and escrow account procedures shall apply in accordance with this chapter and Chapter 230.
(3)
The Planning Board may terminate this expedited permit
process at any time and require the full processing of the application
at its discretion.
C.
Wetland/Watercourse permit application contents. No
regulated activity shall be conducted without the issuance of a written
permit from the approval authority. Sixteen copies of the application
for a permit together with a filing fee and escrow deposit shall be
made to the Secretary to the Planning Board on forms furnished by
the Town before any activity is conducted and must include the following
items:
(1)
Name, address and telephone number of the applicant
and/or owner. (If the applicant is not the owner, the affidavit of
the owner must be attached.)
(2)
Street address and tax map designation of the property,
along with an accurate certified property and land survey.
(3)
Statement of proposed work and purpose thereof, and
an explanation why the proposed activity cannot be located at another
site, including an explanation of how the proposed activity is dependent
on wetlands, watercourses or other water resource(s).
(4)
A list of the names and addresses of property owners,
along with tax map identification addresses, of properties within
500 feet of the boundaries of the property that is the subject of
this application. The list must include the names and addresses of
the owners of record of lands adjacent to the wetland or watercourse
and wetland/watercourse buffer in which the project is to be undertaken
which relate to any land within 500 feet of the boundary of the property
on which the proposed regulated activity would be located.
(5)
Project location map, showing the subject property
as a parcel centered within adjacent parcels within 500 feet, surrounding
zoning, named streets and water-related resources; and having a scale
of no less than one inch equals 400 feet.
(6)
Complete plans drawn to a scale no less detailed than
one inch equals 50 feet, and estimates for the proposed site improvements,
must be certified by a New York State licensed engineer, registered
architect or land surveyor, or a New York State licensed landscape
architect as allowed by New York State Education Law; and must include:
[Amended 9-9-2015 by L.L.
No. 11-2015]
(a)
Existing conditions map, including identification
of existing buildings, structures, walls, fences, areas of one-hundred-year
floodplain, vegetative cover, including dominant species, and all
trees with a dbh of four inches or greater;
(b)
Delineation of the soil types on site;
(c)
Location of the construction area or area proposed
to be disturbed, and its relation to property lines, roads, buildings,
structures, walls, fences, areas within 100 yards of floodplain, and
trees with a dbh of four inches or greater and watercourses within
250 feet of the proposed activity;
(d)
The exact locations and specifications for all
proposed draining, filling, grading, dredging, and vegetation removal,
including the amount computed from cross-sections, estimated quantities
and the nature of material to be deposited or removed, and the procedures
to be used;
(e)
Location of any septic systems or well(s), and
depth(s) thereof, and any disposal system within 100 feet of area(s)
to be disturbed;
(f)
Existing and proposed contours at two-foot intervals
in all proposed disturbed areas and to a distance of 100 feet beyond;
at the discretion of the approval authority, the existing elevations
of the site and adjacent lands within 200 feet of the site at contour
intervals of no greater than five feet;
(g)
Details of any drainage, diversion, detention
or retention system proposed both for the conduct of work, and after
completion thereof, including locations at any point discharges, artificial
inlets, or other human-made conveyances which would discharge into
the wetland or wetland buffer, and measures proposed to control erosion
both during and after the work;
(h)
Groundwater table elevations, indicating depth
to groundwater, direction of flow and hydrologic connections with
surface water features, and analysis of the wetland/watercourse hydrologic
system, including seasonal water fluctuation, inflow/outflow calculations
and soil subsurface, geology and groundwater conditions;
(i)
Erosion and sedimentation control plan, including
installation details of proposed control measures, directive construction
notations and a schedule for the installation and maintenance of proposed
control measures;
(j)
Where creation of a lake or pond is proposed,
details of the construction of any dams, embankments, outlets or other
water control devices; and analysis of the wetland hydrologic system,
including seasonal water fluctuation, inflow/outflow calculations,
and subsurface soil, geology, and groundwater conditions; and
(k)
Where creation of a detention basin is proposed,
with or without excavation, details of the construction of any dams,
berms, embankments, outlets, or other bank or bottom stabilizing or
water control devices, and an analysis of the wetland hydrologic system,
including seasonal water fluctuation, inflow/outflow calculations,
and subsurface drainage, soil and bedrock geology, and groundwater
conditions.
(7)
Proposed mitigation plans.
(8)
When the application affects the water-retention capacity,
water flow or other drainage characteristics of any pond, lake, reservoir,
natural drainage system or wetland, a statement of the impact of the
project on upstream and downstream areas, giving appropriate consideration
to other-than-normal levels of watercourses and amounts of rainfall.
(9)
Details of erosion and sediment control practices,
including a diagram showing what and where erosion and sediment controls
practices will be implemented and a schedule for their installation
and maintenance.
(10)
Wetland/Watercourse delineation map showing the certified
boundaries of all wetlands, watercourses and wetland and watercourse
buffers as defined herein and as certified by a qualified wetland
scientist within 12 months prior to the date of filing the application.
The delineation limits of all wetlands and watercourses shall be subject
to field verification and acceptance by the Planning Board and its
authorized agents.
(11)
Wetland/Watercourse delineation report and assessment
prepared by a qualified wetland scientist as defined by this chapter,
which shall include identification, description and assessment of
the following:
(a)
The vegetative cover of the regulated area,
including dominant species, and hydrophytic vegetation;
(b)
On-site soil types, including groundwater table
elevations showing depth to water table and direction of flow and
hydrologic connections with surface water features;
(c)
Wetland/Watercourse hydrology;
(d)
Wetland/Watercourse and adjacent (buffer) area
functions and benefits; and
(e)
Site flora and fauna, including upland and hydrophytic
vegetation with their wetland classified status (FAC, FACW, FACU,
UPL) and dominant woody and herbaceous species.
(12)
A narrative description of the proposed regulated
activity or use, including location of subject property and area to
be affected; environmental impact assessment and description of the
wetland, watercourse and/or adjacent (buffer) area proposed to be
disturbed or altered; intended purpose of the proposed activity or
use and the applicant's interest in the subject property and area
to be affected; intended purpose and extent of impact or alteration
on the affected wetland, watercourse and/or adjacent (buffer) area;
explanation of why the proposed regulated activity cannot be located
at another site or location with no or less impact upon wetland, watercourse
and/or adjacent (buffer) area; explanation as to whether or not the
proposed activity is dependent on the affected wetland, watercourse
and/or adjacent (buffer) area; the alternatives to the proposed activity
considered, and why the proposal to disturb or alter the affected
wetland, watercourse and/or adjacent (buffer) area was chosen instead;
and the mitigation measures proposed to avoid or reduce impact on
the affected wetland, watercourse and/or adjacent (buffer) area.
(14)
The approval authority may require additional information
as needed such as the study of flood, erosion, or other hazards at
the site and the effect of any protective measures that might be taken
to reduce such hazards, and other information deemed necessary to
evaluate the proposed use in terms of the goals and standards of this
chapter.
(15)
An application fee and engineering and inspection/monitoring
fees shall be charged according to the schedule established by the
Town of Greenburgh Town Board. Necessary escrow funds shall be deposited
with the Town from time to time as necessary to cover costs for technical
assistance and monitoring when the Planning Board deems necessary.
The applicant shall be notified of the expenses and shall deposit
said necessary funds prior to the cost being incurred.
(16)
A statement that the property owner and applicant
will indemnify and hold the Town or its representatives harmless against
any damage or injury and that the owner and applicant consent to the
approval authority's (including its agents or employees) entry upon
lands or waters for the purpose of undertaking any investigations,
inspections, examination, survey, or other activity for the purposes
of this chapter.
D.
All applications for a wetland/watercourse permit
shall be referred to the Town of Greenburgh Conservation Advisory
Council (CAC) for review and recommendations, and the CAC shall have
60 days from the date of receipt to make its recommendation to the
approval authority. Failure to render a recommendation within the
specified time period will be interpreted as no objection to the application.
E.
The approval authority may establish a mailing list
of all interested persons and agencies who wish to be routinely notified
of such applications. Upon receipt of the completed application, the
applicant shall notify the individuals and agencies, including federal,
state, and local agencies having jurisdiction over or an interest
in the subject matter, to provide such individuals and agencies with
an opportunity to comment.
F.
Public hearings. The Planning Board shall hold a public hearing on
the application at such time as it deems appropriate, in order to
give the public at least 12 days' notice thereof. The applicant
shall also give at least 12 days' notice by U.S. Postal Service
regular mail to each of the owners of property within a five-hundred-foot
radius from the boundary of the property. True copies of the affidavit
demonstrating that the applicant has mailed or caused to be mailed
the notice shall be delivered to the Secretary of the Planning Board
by the applicant at least six days prior to the public hearing date.
Insofar as practicable, any public hearing on the application may
be integrated with any public hearing required or otherwise held pursuant
to any other law, including the State Environmental Quality Review
Act. At the hearing, the applicant shall bear the burden of proof
and have the burden of demonstrating that the proposed activity will
be in accord with the goals and policies of this chapter and the standards
set forth below.
[Amended 9-9-2015 by L.L.
No. 11-2015]
G.
All information relating to a permit application,
including but not limited to the application itself, additional required
materials or information, notices, record of hearings, written comments,
and findings, shall be maintained on file in the office of the Clerk
of the Town of Greenburgh and available through the Town's Planning
Department.
The Planning Board shall either grant, conditionally
grant or deny a permit application within 60 days of the close of
the public hearing; provided, however, that the Planning Board has
whatever additional information or documentation it required, the
Planning Board shall then render its decision within 60 days of its
receipt of such matter.
A.
In granting, denying, or conditioning any permit, the Planning Board shall evaluate wetland and watercourse and adjacent (buffer) area functions and the role of each, as the case may be, in the hydrologic and ecological system in which it is part, and shall determine the impact of the proposed activity upon public health, safety and welfare, flora and fauna, water quality, and additional wetland and watercourse functions listed in § 280-2 of this chapter. Regardless of the level of the impact of the proposed activity, avoidance of any direct or indirect impacts shall be the primary criteria used to judge the appropriateness of the action. The Planning Board shall consider the following factors, and shall issue written findings with respect to:
(1)
The overall direct and indirect impact(s) of the proposed activity, and existing and reasonably anticipated similar activities, upon neighboring land uses and wetland, watercourse and adjacent (buffer) area functions as set forth in § 280-2 of this chapter, including but not limited to the:
(a)
Infilling of a wetland, watercourse or other
modification of natural topographic contours;
(b)
Disturbance or destruction of natural flora
and fauna;
(c)
Influx of sediments or other materials causing
increased water turbidity or substrate aggradation;
(d)
Removal or disturbance of wetland or watercourse
soils;
(e)
Reduction in wetland or watercourse ground or
surface water supply;
(f)
Interference with wetland or watercourse water
circulation;
(g)
Changes in the amount or type of wetland or
watercourse nutrients;
(h)
Physical and chemical changes to the wetland
or watercourse water supply; and
(i)
Destruction of natural aesthetic values;
(j)
Reduction in public recreational or educational
use and access; and
(k)
Impact to, and alteration or disturbance of
adjacent (buffer) areas associated with wetlands and watercourses.
(2)
Any existing wetland, watercourse and adjacent (buffer)
area impact(s) and the cumulative effect of reasonably anticipated
future activities in the wetland, watercourse or adjacent (buffer)
area subject to the application;
(3)
The impact of the proposed activity and reasonably
anticipated similar activities upon flood flows, flood storage, storm
barriers, shoreline protection, and water quality;
(4)
The potential effect of flooding, erosion, hurricane
winds, soil limitations, and other hazards, and possible losses to
the applicant and subsequent purchasers of the land;
(5)
The adequacy of water supply and waste disposal for
the proposed use;
(6)
Consistency with federal, state, county and Town comprehensive
land use plans, and regulations;
(7)
The availability of preferable or environmentally
compatible alternative locations on the subject parcel; and
(8)
The demonstration by the applicant that any direct
and indirect impact(s) are necessary and unavoidable and have been
minimized to the maximum extent practicable for the purposes of this
chapter. Wetland, watercourse and adjacent (buffer) area impacts will
be deemed necessary and unavoidable only if the applicant satisfies
all of the following criteria as determined by the Planning Board:
(a)
The proposed activity is compatible with the
public health and welfare.
(b)
There is no reasonably feasible on-site alternative
to the proposed activity, in the judgment of the Planning Board, including
reduction in density, change in use, revision of road and lot layout,
revision in the location of buildings, structures, driveways and other
site construction and land-altering activities and/or related site
planning considerations, that could otherwise reasonably accomplish
the applicant's objectives.
(c)
There is no reasonably feasible alternative
to the proposed activity on another site or site location that is
not a wetland, watercourse or adjacent (buffer) area as defined herein.
B.
The approval authority must deny a permit if:
(1)
The applicant has not demonstrated that all reasonable
alternatives have been explored; that reasonable alternatives exist
which could avoid or reduce potential losses or impacts to the wetland,
watercourse or adjacent (buffer) area; or that any unavoidable losses
or impacts to wetlands, watercourses, and adjacent (buffer) areas
have not been minimized to the maximum extent practicable.
(2)
The proposed activity may threaten public health,
safety or welfare; results in fraud, causes nuisances, impairs public
rights to the enjoyment and use of public lands and waters; threatens
a special concern, rare or endangered plant or animal species; violates
pollution control standards; or violates any other Town, state, city
or federal regulations or laws; or
(3)
Both the affected landowner and the local government
have been notified by a duly filed notice in writing that the state
or any agency or political subdivision of the state is in the process
of acquiring the wetland, watercourse or adjacent area by negotiation
or condemnation with the following provisions:
(a)
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.
(b)
If the landowner receives no offer for the property
within one year of the permit denial, this prohibition shall lapse.
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 prohibition shall lapse.
C.
The approval authority shall give consideration to
activities that must have a shoreline or wetland location to function
and that will have as little impact as possible upon the wetland,
watercourse and/or the watercourse/wetland adjacent (buffer) area.
In general, permission will not be granted for dredging or ditching
solely for the purpose of draining wetlands or watercourses, controlling
mosquitoes, creating ponds, constructing industrial facilities, providing
soil and dump sites, or building roads, driveways or buildings or
structures that may be located elsewhere. All reasonable measures
must be taken to minimize all direct and indirect impacts upon the
wetland, watercourse and adjacent (buffer) area.
D.
The Planning Board shall require preparation of a mitigation plan by the applicant pursuant to § 280-10 when the Planning Board has determined that all alternatives have been explored and that wetland, watercourse and buffer impacts are necessary and unavoidable and have been minimized to the maximum extent practicable. In the evaluation of the least environmentally damaging practicable alternatives, mitigation may be used as a means of reducing environmental impacts; a mitigation wetland is designed to replace lost wetland acreage and functions.
A.
After it has been determined by the approval authority
that impacts to a wetland, watercourse or wetland/watercourse buffer
are necessary and unavoidable and have been minimized to the maximum
extent practicable, the applicant must develop a proposed mitigation
plan which shall specify proposed mitigation measures that provide
for replacement wetland that recreates as nearly as possible the original
wetland in terms of type, vegetative composition, functions, geographic
location and setting, and that is larger, by a ratio of at least 1.5
to 1.0, than the original wetland, and located on site.
B.
All mitigation plans shall be based on the following
order of preference:
(1)
Minimization of impacts and disturbance to wetlands,
watercourses and adjacent (buffer) areas, in that order.
(2)
Preservation of remaining wetlands, watercourses and
adjacent (buffer) areas through the dedication and establishment of
perpetual conservation easements, development restriction areas, or
equivalent.
(3)
Rectification by repairing or restoring existing damaged
wetlands, watercourses or adjacent (buffer) areas, including enhancement
thereto.
C.
Mitigation may take the following forms, either singularly
or in combination, for disturbances in wetland/watercourse and adjacent
(buffers) areas:
(1)
For disturbance in a wetland/watercourse or buffer:
(a)
Implementation of preventative practices to
protect the natural condition and functions of the wetland, watercourse;
and/or
(b)
Restoration or enhancement (e.g., improving
the density and diversity of native woody plant species) of remaining
or other upland buffer to offset the impacts to the original buffer.
(2)
For disturbance in a wetland:
(a)
Restoration of areas of significantly disturbed
or degraded wetlands at a ratio of at least 1.5 (restored wetland)
to 1.0 (impacted wetland) by reclaiming significantly disturbed or
degraded wetland to bring back one or more of the functions that have
been partially or completely lost by such actions as draining or filling,
provided the area of proposed mitigation occurs in a confirmed disturbed
or degraded wetland having significantly lesser functional values
as a result of disturbance or degradation; and/or
(b)
The in-kind replacement of impacted wetland
by the construction of new wetland, usually by flooding or excavating
lands that were not previously occupied by a wetland, that recreates
as nearly as possible the original wetland in terms of type, functions,
geographic location and setting, and that is larger than, by a ratio
of at least 1.5 to 1.0, the original wetland.
D.
The Planning Board shall inspect and monitor, or shall
cause to have inspected and monitored, projects according to the specifications
set forth in the permit, to determine whether the elements of the
mitigation plan and permit conditions have been satisfied and whether
the restored or created wetland function(s) and acreage mitigate the
impacted function(s) and acreage. To this end, the approval authority
may contract with an academic institution, an independent research
group, or other qualified professionals at the expense of the applicant.
An annual, or more frequent, monitoring report prepared by the appropriate
monitor shall be submitted to the approval authority. Mitigation projects
shall be monitored for an appropriate period of time, as determined
by the approval authority Planning Board, on a case-by-case basis.
Long-term monitoring is generally needed to assure the continued viability
of mitigation wetlands. In general, the monitoring period shall be
from three to five years. The requirements for monitoring shall be
specified in the mitigation plan and shall include, but not be limited
to:
(1)
The time period over which compliance monitoring shall
occur;
(2)
Field measurements to verify the size and location
of the impacted wetland area and the mitigation (restored or replacement)
wetland area;
(3)
The date of completion of the restoration and/or replacement;
and
(4)
Field verification of the vegetative, hydrologic,
and soils criteria as specified in the mitigation plan and permit.
E.
If the Planning Board requires a mitigation plan,
the following shall apply:
(1)
All mitigation measures shall balance the benefits
of regaining new wetland area(s) with the loss to upland (nonwetland)
area(s) caused by wetland creation. On-site mitigation is required.
(2)
Mitigation plans developed to compensate for the loss
of wetland or wetland/watercourse buffer shall include base line data
as needed to adequately review the effectiveness of this plan.
(3)
Any mitigation plan prepared pursuant to this section
and accepted by the Planning Board shall become part of the permit
for the application to conduct a regulated activity.
F.
All mitigation plans shall include:
(1)
A map with sufficient detail and at a scale to be
able to determine where the wetland is located and its size, boundaries
and topographic features;
(2)
A narrative which describes goals and specific objectives
for the mitigation wetland or wetland/watercourse buffer, including
the functions and benefits to be provided and clear performance standards
and criteria for assessing project success;
(3)
A description of the physical, hydrological and ecological
characteristics of the impacted wetland and/or wetland/watercourse
buffer and proposed restored and/or created wetland and/or buffer
in sufficient detail to enable the Planning Board to determine whether
wetland and/or buffer impacts will be permanently mitigated;
(4)
Details on construction, including:
(a)
Diking, excavation, or other means by which
the wetland will be restored or created, including existing and proposed
topographic contours;
(b)
Construction schedule;
(c)
Measures to control erosion and sedimentation
during construction;
(d)
Plantings: source of stock, procedures for transplanting/seeding
the stock, area(s) to be planted, and planting schedule. If vegetation
from the wild is to be used, identify the source and measures to prevent
introduction of undesirable exotics.
(e)
Chemicals: if applicable, explain why chemicals
will be used and precautions to be taken to minimize their application
and protect the wetland and/or watercourse from excessive chemicals;
(5)
Details on management of the mitigation site, including:
(a)
Measures to assure persistence of the wetland
(e.g., protection against predation by birds and other animals);
(b)
Vegetative management;
(c)
Sediment and erosion control;
(d)
Plans for monitoring site during and after construction,
including methods and schedule for data collection and provisions
for mid-course corrections;
(e)
Provisions for long-term protection of the site
(e.g., permanent conservation easement);
(f)
Provision for bonding or other financial guarantees;
(6)
A description of the periodic reporting, including
at the end of construction, during the monitoring period and at the
end of the monitoring period; and
(7)
The name, qualifications and experience of the person(s)
implementing the mitigation plan (i.e., contractor who will restore
or construct the wetland).
G.
Mitigation measures and permit conditions shall be
set forth in a covenant to be recorded in the County Clerk's office,
to run with the land and bind subsequent owners. The approval authority
will require the applicant to provide a covenant or easement to enable
the Town to inspect any mitigation measures of approval. If mitigation
measures are removed or not properly maintained, the Town, upon notice
to cure to the property owner, may undertake corrective action, charge
the property owner for such expense, and, if unpaid, place the costs
on the real property tax bill.
A.
Any permit issued pursuant to this chapter may be
issued with conditions. Such conditions may be attached, as the approval
authority deems necessary, to assure the preservation and protection
of affected wetlands and compliance with the policy and provisions
of this chapter.
B.
Every permit issued pursuant to this chapter shall
be in written form and shall contain the following conditions:
(1)
Work conducted under a permit shall be open to inspection
at any time, including weekends and holidays, by the approval authority,
or its designated representative(s).
(2)
The permit shall expire on a specified date; unless
otherwise indicated, the permit shall be valid for one year.
(3)
The permit holder shall notify the approval authority,
in writing, of the date on which the regulated activity is to begin
at least five days in advance of such date.
(4)
A copy of the approval authority's written permit
with conditions and the approved plans shall be maintained on site
during construction while the regulated activities authorized by the
permit are being undertaken.
(5)
The boundaries of the regulated activity and wetlands
and watercourses shall be staked and appropriately marked in the field
so as to be clearly visible to those at the project site.
(6)
Mitigation measures shall be enumerated as conditions
of the written permit.
C.
Any permit, the issuance of which is based on erroneous
or incomplete information, including, but not limited to, the failure
to completely identify wetland, watercourse and adjacent (buffer)
areas, shall be subject to revocation by the Planning Board.
D.
The approval authority shall set forth in writing
all conditions attached to any permit. Such conditions may include,
but are not limited to, limitations on lot size for any activity;
limitations on the total portion of any lot or the portion of the
wetland/watercourse or adjacent (buffer) area on the lot that may
be cleared, regraded, filled, drained, excavated or otherwise modified;
modification of waste disposal and water supply facilities; imposition
of operation controls, sureties, and deed restrictions concerning
future use and subdivision of lands such as preservation of undeveloped
areas in open space use, and limitation of vegetation removal; dedication
of easements and development restriction areas to protect wetlands/watercourses
and adjacent (buffer) areas; erosion control measures; setbacks for
structures, fill, excavation, deposit of soil, and other activities
from the wetland; modifications in project design to ensure continued
ground and surface water supply to the wetland/watercourse or adjacent
(buffer) area and circulation of waters; and/or replanting of wetland/watercourse
or adjacent (buffer) areas vegetation or construction of new wetland
areas to replace damaged or destroyed areas.
E.
The permit will expire on a specified date and, unless otherwise
indicated, the permit will be valid for a length not to exceed two
years or for the same term as any associated building permits, whichever
term is longer. Extensions of up to two years of an original or subsequent
permit may be granted upon written request to the approval authority
by the permit holder or authorized representative at least 30 days
prior to the expiration date of the permit. The Planning Board need
not hold a hearing if the scope of work, magnitude of site disturbance,
extent of mitigation or original intent of the permit is not altered
or extended in any significant way.
[Amended 9-9-2015 by L.L.
No. 11-2015]
A.
Any person, upon a showing of extraordinary hardship
caused by the provisions of this chapter on development in the wetland,
watercourse or adjacent (buffer) areas, may apply to the Zoning Board
of Appeals for a variance from this chapter. Such variance may be
granted only if the applicant establishes that:
(1)
Denial of such variance would result in an extraordinary
hardship, as distinguished from an inconvenience, if the provisions
of this chapter are literally enforced. An applicant shall be deemed
to have established the existence of extraordinary hardship only if
the applicant demonstrates, based on specific facts, that the subject
property does not have any beneficial use if used for its present
use or developed as authorized by the provisions of this chapter,
and that this inability to have a beneficial use results from unique
circumstances peculiar to the subject property which:
(a)
Do not apply to or affect other property in
the immediate vicinity;
(b)
Relate to or arise out of the characteristics
of the subject property rather than the personal situation of the
applicant; and
(c)
Are not the result of any action or inaction
by the applicant or the owner or predecessors in title, including
any transfer of contiguous lands which were previously in common ownership;
or
(2)
There is a compelling public need for development
of the parcel in question based upon one of the following:
(a)
The proposed development will serve an essential
health or safety need of the municipality such that the public benefits
from the proposed use override the importance of the protection of
the wetland, watercourse or adjacent (buffer) area as established
in this chapter, that the proposed use is required to serve existing
needs of the residents; and that no feasible alternatives exist outside
the wetland, watercourse or adjacent (buffer) area to meet such established
public need; or
(b)
The proposed development constitutes an adaptive
reuse of an historic resource and said reuse is necessary to ensure
the integrity and continued protection of the designated historic
resource; and, further,
B.
Additional findings required. An application for a
hardship variance to permit development on, near, or in a wetland,
watercourse or adjacent (buffer) area shall be approved only if the
Zoning Board of Appeals specifically finds that:
(1)
The proposed development will not be materially detrimental
or injurious to other properties or improvements in the area in which
the subject property is located, increase the danger of fire or flood,
endanger public safety or result in substantial impairment of the
resources of the wetland, watercourse or adjacent (buffer) area;
(2)
The waiver will not be inconsistent with the purposes,
objectives or the general spirit and intent of this chapter; and
(3)
The variance is the minimum relief necessary to relieve
the extraordinary hardship established by the applicant.
C.
A variance granted under the provisions of this chapter
by the Zoning Board of Appeals shall not constitute an approval of
the entire development proposal, nor shall it constitute a variance
of any other requirements contained within any other applicable local,
county or state laws or ordinances or regulations.
A.
The approval authority may require that, prior to
commencement of work under any permit issued pursuant to this chapter,
the applicant or permittee shall post a bond and/or provide a letter
of credit in an amount and with surety and conditions sufficient to
secure compliance with the conditions and limitations set forth in
the permit. The particular amount and the conditions of the bond and/or
letter of credit shall be consistent with the purposes of this chapter.
The bond and/or letter of credit shall remain in effect until the
approval authority or its designated agent certifies that the work
has been completed in compliance with the terms of the permit and
the bond and/or letter of credit is released by the approval authority
or a substitute bond is provided. In the event of a breach of any
condition of any such bond and/or letter of credit, the approval authority
may institute an action in the courts and prosecute the same to judgment
and execution.
B.
The approval authority shall set forth in writing
its findings and reasons for imposing a bond and/or letter of credit
pursuant to this section.
No permit granted pursuant to this chapter shall
remove an applicant's obligation to comply in all respects with the
applicable provisions of any other federal, state, or Town law or
regulation, including but not limited to the acquisition of any other
required permit or approval.
A.
The approval authority may suspend or revoke a permit
and direct the Wetlands Inspector to issue a stop-work order if it
finds that the applicant or permittee has not complied with any or
all of the terms of such permit, has exceeded the authority granted
in the permit, has failed to undertake the project in the manner set
forth in the approved application or has provided information, in
whole or in part, which subsequently proves to be false, deceptive,
incomplete or inaccurate.
B.
The approval authority shall set forth in writing
in the file it keeps regarding a permit application its findings and
reasons for revoking or suspending a permit pursuant to this section.
All permit application and review fees and escrow deposits shall be in an amount set forth in the fee schedule established by resolution of the Town Board and in accordance with Chapter 230 of the Town Code.
In order to carry out the purposes and provisions
of this chapter, and in addition to the powers specified elsewhere
in this chapter, the approval authority shall have the following powers:
A.
To do any and all things necessary or convenient to
carry out the policy and intent of this chapter; and
B.
To consult or contract with expert persons or agencies
in reviewing a permit application; and
C.
To hold hearings and subpoena witnesses in the exercise
of its powers, functions, and duties provided for by this chapter.
A.
The Town of Greenburgh is specifically empowered to
seek injunctive relief restraining any violation or threatened violation
of any provisions of this chapter and/or compel the restoration of
the affected wetland or wetland/watercourse buffer to its condition
prior to the violation of the provisions of this chapter.
B.
The Planning Board will require the inspection of
each site of a permit to ascertain the degree of compliance with the
approved plans and permit conditions. The frequency of such inspections
will be in proportion to the site complexity and potential harm of
each project. The inspection shall be carried out by the Town Wetland
Scientist. The cost of such inspection shall be determined by the
approval authority and borne by the permit holder. The reports of
such inspection shall become part of the public record.
A.
Administrative sanctions.
(1)
Damages. Any person who undertakes any wetland activity
without a permit issued hereunder, or who violates, disobeys, or disregards
any provision of this chapter or any rule or regulation adopted by
the Planning Board pursuant to this chapter, shall be required to
suspend all activity by a written stop-work order issued by the Wetlands
Inspector, or other Town representative, and shall be liable to the
Town of Greenburgh for civil damages caused by such violation for
every such violation. Each consecutive day of the violation will be
considered a separate offense. Such civil damages may be recovered
in an action brought by the Town of Greenburgh at the request and
in the name of the Planning Board in any court of competent jurisdiction.
(2)
Restitution. The Town of Greenburgh shall have the
authority, following a hearing before the Planning Board and on notice
to the violator, "Notice of Violation," to direct the violator to
restore the affected wetland/watercourse to its condition prior to
violation, insofar as that is possible, within a reasonable time and
under the supervision of the Planning Board or its designate. Further,
the Planning Board shall be able to require an adequate bond in a
form and amount approved by the Planning Board to ensure the restoration
of the affected wetland. Any such order of the Planning Board shall
be enforceable in an action brought in any court of competent jurisdiction.
Any order issued by the Planning Board pursuant to this subsection
shall be reviewable in a proceeding pursuant to Article 78 of the
State Civil Practice Law and Rules. The Planning Board may attach
any order issued pursuant to this subsection to the land records of
the Town of Greenburgh for the property on which the violation occurred.
This order shall remain attached to the land records for the duration
of the violation; the Planning Board shall, upon satisfactory removal
of the violation, remove the order from the land records.
(3)
Stop-work order; revocation of permit. In the event
any person holding a wetlands/watercourse permit pursuant to this
chapter violates the terms of the permit, fails to comply with any
of the conditions or limitations set forth on the permit, exceeds
the scope of the activity as set forth in the application, or operates
so as to be materially detrimental to the public welfare or injurious
to wetlands or watercourses, the Planning Board may suspend or revoke
the wetlands/watercourse permit, as follows:
(a)
Suspension of a permit shall be by a written stop-work order issued by the Wetlands Inspector or any other official of the Town, through the Town Attorney, and delivered to the permittee or his agent, or the person performing the work. The stop-work order shall be effective immediately, shall state the specific violations cited, and shall state the conditions under which work may be resumed. A stop-work order shall have the effect of suspending all authorizations and permits granted by the Town or any agency thereof. The stop-work order shall remain in effect until the Planning Board is satisfied that the permittee has complied with all terms of the subject permit or until a final determination is made by the Town Board as provided in Subsection A(3)(b) contained hereinbelow.
(b)
No site development permit shall be permanently
suspended or revoked until a public hearing is held by the Planning
Board.
[2]
Such notice shall be served on the permittee
at least one week prior to the date set for the public hearing unless
the stop-work order is issued for a violation occurring less than
one week before the next regularly scheduled public meeting of the
Planning Board. At such hearing, the permittee shall be given an opportunity
to be heard and may call witnesses and present evidence. At the conclusion
of the hearing, the Planning Board shall determine whether the permit
shall be reinstated, suspended or revoked. The term "person," as used
herein, shall mean a natural person or a corporate person.
(4)
Any offender also may be ordered by the Planning Board
to restore the affected freshwater wetland to its condition prior
to the offense, insofar as possible. The approval authority shall
specify a reasonable time for the completion of such restoration,
which shall be effected under the supervision of the Town of Greenburgh.
B.
Criminal sanctions. Any person convicted of having
violated or disobeyed any provision of this chapter, any order of
the Planning Board or any condition duly imposed by the Planning Board
in a permit granted pursuant to this chapter, shall, for the first
offense, be punishable by a fine of not less than $1,000. For each
subsequent offense, such person shall be punishable by a fine of not
less than $2,000, nor more than $15,000, and/or a term of imprisonment
of not more than 15 days. Each consecutive day of the violation may
be considered a separate offense.
Any determination, decision or order of the
approval authority may be judicially reviewed by the applicant or
any other aggrieved party by the commencement of an action pursuant
to Article 78 of the Civil Practice Law and Rules of the State of
New York within 30 days after the date of the filing of the determination,
decision or order of such approval authority with the Clerk of the
Town of Greenburgh and/or County.
