[HISTORY: Adopted Town Board of the Town of Union 5-6-1987 by L.L. No. 7-1987. Amendments noted where applicable.]
The Town of Union finds that freshwater wetlands are invaluable resources for flood protection, wildlife habitat, open space, water resources and recreation and other benefits associated therewith which, if preserved and maintained in an undisturbed, natural condition, constitute important assets to existing and future residents of the Town.
It is the intent of the Town Board to protect the citizens of the Town of Union by preserving, protecting and conserving freshwater wetlands and the benefits derived therefrom, to prevent the despoliation and destruction of freshwater wetlands and to regulate use and development of such wetlands consistent with the general welfare and beneficial economic, social and agricultural development of the Town.
The State of New York has enacted legislation titled the "Freshwater Wetlands Act," Article 24 of the Environmental Conservation Law, which authorizes the Town to establish its own local procedures for the protection and regulation of wetlands lying within the jurisdiction of the Town. The New York State Department of Environmental Conservation has promulgated implementing regulations for local government adoption of Article 24 authority found in Part 665 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR 665).
This chapter shall be known and may be cited as the "Freshwater Wetlands Law of the Town of Union."
The following terms, phrases and words and their derivatives shall have the meanings given herein:
- ADJACENT AREA
- All lands within 100 feet, horizontally, of the vegetative boundary of any freshwater wetland. The Town may establish an adjacent area broader than 100 feet where necessary to protect and preserve a wetland. Such an extension shall not become effective until the Town has provided the opportunity for public notice and hearing. The Town shall provide a minimum of 30 days' notice to the public, affected landowners, easement owners and the Commissioner of the New York State Department of Environmental Conservation.
- Cultivating and harvesting products, including fish and vegetation, that are produced naturally in freshwater wetlands and installing cribs, racks and other in-water structures for cultivating these products, but does not include filling, dredging, peat mining or the construction of any buildings or any water-regulating structures such as dams.
- Any form of draining, dredging, excavation, or removal of soil, mud, sand, shells, gravel or other aggregate; any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures or roads; the driving of pilings or placing of any other obstructions, whether or not changing the ebb and flow of the water; any form of pollution; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits therefrom which are set forth in § 24-0105 of the Environmental Conservation Law.
- Any person who files an application for any permit issued by the Town pursuant to this chapter, and shall include the agent of the owner or a contract vendee.
- BOUNDARY OF A WETLAND
- The outer limit of the vegetation and the lands and waters as specified in the definition of "freshwater wetlands."
- Any cutting of trees over six inches in diameter at breast height over any ten-year cutting cycle where the average residual basal area of such trees after such cutting is less than 30 square feet per acre, measured within the area harvested; provided, however, that where regeneration is assured by stand conditions such that after such cutting the average residual basal area of the trees at least one inch in diameter at breast height is at least 30 square feet per acre, measured within the area harvested, a clear-cut will not be deemed to have taken place unless the average residual basal area of trees over six inches in diameter at breast height is less than 10 square feet per acre, similarly measured.
- A. The activity of a farmer or landowner in:
- (1) Grazing and watering livestock.
- (2) Making reasonable use of water resources for agricultural purposes.
- (3) The depositing or removal of the natural products of freshwater wetlands by recreational or commercial fishing, shellfishing, aquiculture, hunting or trapping.
- (4) The selective cutting of trees.
- (5) The clear-cutting of vegetation other than trees for growing agricultural products.
- (6) Constructing winter truck roads of less than five meters (approximately 16 feet) in width for removing timber cut in accordance with Subsection A(4) of this definition, where construction is limited to cutting vegetation and compacting ice and does not alter water flows.
- (7) Operating motor vehicles for agricultural purposes.
- (8) Draining for growing agricultural products.
- (9) Erecting structures, including fences, required to enhance or maintain the agricultural productivity of the land.
- (10) Using chemicals and fertilizers according to normal, accepted agricultural practices in order to grow crops for human and animal consumption or use in or adjacent to wetlands, where authorized by other state, federal or local laws, including the application of stabilized sludge as a fertilizer when applied at agronomic loading rates in accordance with a valid 6 NYCRR 360 or 364 landspreading permit.
- (11) Otherwise engaging in the use of wetlands for growing agricultural products such as crops, vegetables, fruits or flowers.
- B. Public health activities, orders and regulations of the New York State Department of Health, provided that copies of all such orders or regulations affecting wetlands are filed with the Department of Environmental Conservation in advance.
- C. Land use, improvement or development for which final approval was adopted prior to September 1, 1975, from the Town authority having jurisdiction over such land use.
- D. Does not mean:
- (1) Clear-cutting trees.
- (2) Constructing roads that require moving earth or other aggregate or that alter water flow or in any way deviate from Subsection A(6) of this definition.
- (3) Filling or deposition of spoil, even for agricultural purposes.
- (4) Mining.
- (5) Erecting structures not required to enhance or maintain the agricultural productivity of the land.
- Depositing any soil, stones, sand, gravel, mud, rubbish or fill of any kind.
- FRESHWATER WETLANDS
- Lands and waters of the Town, as shown on a Freshwater Wetlands Map filed with the Town Clerk, which contain any or all of the following:
- A. Lands and submerged lands, commonly called "marshes," "swamps," "sloughs," "bogs" and "flats," supporting aquatic or semiaquatic vegetation of the following vegetative types:
- (1) Wetland trees which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees.
- (2) Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs.
- (3) Emergent vegetation.
- (4) Rooted, floating leaved vegetation.
- (5) Free-floating vegetation.
- (6) Wet meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other open land vegetation.
- (7) Bog mat vegetation.
- (8) Submergent vegetation.
- B. Lands and submerged lands containing remnants of any vegetation that is aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet and provided further that such conditions can be expected to persist indefinitely, barring human intervention.
- FRESHWATER WETLANDS MAP
- An official wetlands map, and any amendments thereto, promulgated by order of the Commissioner of the New York State Department of Environmental Conservation, pursuant to Title 3 of Article 24 of the Environmental Conservation Law, on which are indicated the approximate locations of the actual boundaries of regulated wetlands.
- LETTER OF PERMISSION
- A written notification by the Planning Department to a person, issued in response to a written request to conduct an activity in the wetland or its adjacent area, indicating that the proposed activity meets the description and standards identified in the minimum land use regulations for that activity. No freshwater wetlands permit is required for the proposed activity. These activities have been determined as being compatible with freshwater wetlands and not having a significant adverse impact on wetlands or their functions and benefits.
- PARTY IN INTEREST
- Any person who files an application pursuant to this chapter or is permitted to intervene pursuant to this chapter, or any official within whose area is located the freshwater wetland or adjacent area which is the subject of an application for a freshwater wetlands permit.
- That form of Town Board approval required by this chapter for the carrying on of a regulated activity.
- Any corporation, firm, partnership, association, trust, estate, one or more individuals and any unit of government or agency or subdivision thereof.
- The presence in the environment of man-induced conditions or contaminants in quantities or characteristics which are injurious to humans, vegetation, wildlife or property.
- Any action resulting in direct or indirect physical impact on a freshwater wetlands, including but not limited to any regulated activity.
- REGULATED ACTIVITY
- Any activity within a freshwater wetland or on the adjacent area which, directly or indirectly, may substantially alter or impair the natural condition of any freshwater wetlands, including any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes into or so as to drain into a freshwater wetland and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom.
Except as hereinafter provided, it shall be unlawful for any person, without obtaining a written permit therefor issued by the Town of Union, to alter any freshwater wetland.
The activities of farmers or landowners in grazing and watering livestock, making reasonable use of water resources, harvesting natural products of the wetlands, selectively cutting timber, draining land or wetlands for growing agricultural products and otherwise engaging in the use of wetlands or other land for growing agricultural products shall be excluded from regulated activities and shall not require a permit.
Any person proposing to conduct a regulated activity upon any freshwater wetland shall file an application for a permit with the Planning Department. The application shall contain the following:
The name and address of the owner and applicant.
The street address and tax map number of the property covered by the application.
A statement of authority from the owner for any agent making application.
A statement of the proposed work and the purpose thereof.
An environmental assessment long form.
Plans for the proposed regulated activities. The plans shall be drawn to a scale of not less than one inch equals 50 feet unless otherwise specified by the approval authority and shall show the following:
The location of the construction or area proposed to be disturbed and its relation to property lines, buildings, roads and watercourses within 250 feet.
Estimated quantities of material of excavation or fill computed from cross sections.
The location of any well and depth thereof and any sewage or wastewater disposal system within 100 feet of the disturbed area.
Existing and adjusted contours at reasonable intervals in the proposed disturbed area, to a distance of 100 feet beyond.
Details of any drainage system proposed both for the conduct of work and after completion thereof and measures proposed to control erosion and siltation both during and after the work.
Where creation of a lake or pond is proposed, details of the construction of any dams, embankments and outlets or other water-control devices.
Copies of all applicable county, state or federal permits which are required for such work or improvement, unless such permits are conditioned on obtaining a permit under this chapter.
An application fee as may be set by resolution of the Town Board.
The Planning Department, upon receipt of the application, supporting plans and documentation, shall determine the compatibility category and institute the proper action indicated by the minimum land use regulations in 6 NYCRR 665.7. If the application is exempt from regulation or needs a letter of permission, the Planning Department shall correspond with the applicant in the manner indicated by the state land use regulations. If the application is of such a nature that a permit is required from the Town Board, the application shall be reviewed by the Wetlands Advisory Commission for recommendation to the Town Board.
Preparation for public hearing.
No sooner than 30 days and not later than 60 days after receipt of such application and after notice of application has been published by the applicant in the official newspapers of the Town, the Town Board shall hold a public hearing on such application unless no notice of objection has been filed and the Town finds the activity to be of such a minor nature as not to affect or endanger the balance of systems within the wetlands and it has been determined to be compatible with state standards for issuance of permits in 6 NYCRR 665.7, in which case the Town may, in the exercise of discretion, dispense with such hearing. Where the Town finds a hearing is not necessary, a decision setting forth reasons therefor shall be prepared, shall be a matter of public record and shall be mailed to all persons who filed a statement with the Town following the publication of such notice of application. All owners of record of adjacent land shall be notified by certified mail of the hearing not less than 15 days prior to the date set for such hearing. The Town shall cause the notice of hearing to be published in the official newspapers of the Town. All applications shall be on file and open to public inspection at the office of the Town Clerk. At such hearing, any persons may appear and be heard.
In granting, denying or limiting any permit, the Town Board shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and the protection or enhancement of other functions of freshwater wetlands and the benefit derived therefrom. In no case shall a permit be issued which does not meet the permit issuance standards and statewide minimum land use regulations found in Part 665 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR 665).
The applicant shall have the burden of demonstrating that the proposed activity will be in accord with the policies and provisions set forth in this chapter.
The Town Board may place conditions on permits and may require a bond to cover compliance and any permit restrictions. The Town Board may suspend or revoke a permit if it finds the applicant has not complied with conditions or limitations set forth in the permit or has exceeded the scope of activity as set forth in the application.
A permit approved by the Town does not relieve the applicant of the necessity to obtain authorization from other agencies which have jurisdiction over the project proposal.
The Town Board shall state upon the record findings and reasons for all actions taken pursuant to this chapter.
Operations conducted under permit or letter of approval shall be open to inspection at any time by the Planning Department.
Duly filed notice in writing that the state or any agency or subdivision thereof is in the process of acquiring any freshwater wetlands by negotiation or condemnation authorizes but does not require denial of any permit, but only if both the affected landowner and the Town have been so notified.
Any aggrieved applicant may take an appeal to the Town Board within 20 days from the filing of the decision. Upon receipt of the notice of appeal, the Town Board shall set a time within 30 days thereafter when a hearing on such appeal will be heard, public notice having been given in a newspaper of general circulation in the Town at least five days prior to such appeal.
Any decision or order of the approval authority made pursuant to or within the scope of this chapter may be reviewed at the instance of any person affected thereby, including but not limited to any owner of the affected area or wetland and any resident of the Town of Union, by the New York State Freshwater Wetlands Appeals Board in accordance with Title 11 of Article 24 of the State Environmental Conservation Law, provided that such review is commenced by the filing with the Board of a notice of review within 30 days after the service of such order or notice of such decision given, as the case may be.
Any party to any proceeding before the approval authority may make an appeal to the New York State Freshwater Wetlands Appeals Board in accordance with Title 11 of Article 24 of the State Environmental Conservation Law from any order or decision of the approval authority issued or made pursuant to or within the scope of this chapter, provided that such appeal is commenced by the filing with the Board of a notice of appeal within 30 days after service of such order or after notice of such decision given, as the case may be.
Any decision or order of the approval authority made pursuant to or within the scope of this chapter may be reviewed at the instance of any person, including but not limited to any owner of the affected wetland or adjacent area and any resident of the Town of Union, in accordance with Article 78 of the State Civil Practice Law and Rules, provided that such review is commenced within 30 days of the filing of such decision or order, and the limitation upon the availability of such remedy as prescribed in § 7801 of the Civil Practice Law and Rules shall not be applicable to the applications for review of determinations and orders made pursuant to this chapter. In the event that the court finds the action reviewed constitutes a taking without just compensation and the land so regulated merits protection under this chapter, the court may, at the election of the Commissioner of the New York State Department of Environmental Conservation, either set aside the order or require the Commissioner to proceed under the Eminent Domain Procedure Law to require the wetlands or such less than fee rights therein as have been taken.
The institution of a judicial proceeding to review a determination or order of the approval authority shall preclude the institution of a proceeding before the Board to review such a determination or order. The availability of such review before the Board shall not affect the right of any person to seek review of a determination of the approval authority as provided in Article 78 of the State Civil Practice Law and Rules.
Administrative sanctions. Any person who violates, disobeys or disregards any provisions of this chapter, including any rule or regulation, Town law or ordinance, permit or order issued pursuant thereto, shall be liable to the people of the state for a civil penalty not to exceed $3,000 for every such violation, to be assessed, after a hearing or opportunity to be heard upon due notice and with the rights to specification of the charges and representation by counsel at such hearing, by the Town Board. Such penalty may be recovered in an action brought by the Attorney General at the request and in the name of the Commissioner or the Town in any court of competent jurisdiction.
Such civil penalty may be released or compromised by the Commissioner or Town before the matter has been referred to the Attorney General at the request and in the name of the Commissioner or the Town in any court of competent jurisdiction. Such civil penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the Attorney General with the consent of the Commissioner or the Town Board.
In addition, the Commissioner or the Town Board shall have power, following a hearing held in conformance with the procedures set forth in Article 71, § 1709, of the New York State Environmental Conservation Law, to direct the violator to cease his violation of the Act and to restore the affected freshwater wetland to its condition prior to the violation insofar as that is possible within a reasonable time and under the supervision of the Commissioner or the Town Board. Any such order of the Commissioner or Town Board shall be enforceable in an action brought by the Attorney General at the request and in the name of the Commissioner or Town Board in any court of competent jurisdiction.
Criminal sanctions. Any person violating any provision of this chapter, including any rule or regulation, Town law or ordinance, permit or order issued pursuant thereto, shall, in addition, be guilty of a violation punishable by a fine of not less than $500 nor more than $1,000 for the first offense. Any subsequent offense shall be a misdemeanor punishable by a fine of not less than $1,000 nor more than $2,000 or a term of imprisonment of not less than 15 days nor more than six months, or both. Instead of these punishments, an offender may be punishable by being ordered by the court to restore the affected freshwater wetland to its condition prior to the offense, insofar as that is possible. The court shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the Town. Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense.
This chapter shall take effect on receipt by the Town of an order of the Commissioner of the New York State Department of Environmental Conservation formally transmitting jurisdiction.