Town of Yorktown, NY
Westchester County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Yorktown 3-19-1991 by L.L. No. 16-1991. Amendments noted where applicable.]
GENERAL REFERENCES
Conservation areas — See Ch. 140.
Environmental quality review — See Ch. 161.
Erosion and sediment control — See Ch. 165.
Flood damage prevention — See Ch. 175.
Land development — See Ch. 195.
Zoning — See Ch. 300.
This chapter shall be known as the "Freshwater Wetlands and Watercourse Protection Law of the Town of Yorktown." It is a chapter regulating the dredging, filling, deposition or removal of materials; diversion or obstruction of water flow; and placement of structures and other uses in the ponds, lakes, reservoirs, watercourses and wetlands in the Town of Yorktown.
This chapter is enacted pursuant to the Municipal Home Rule Law and any and all applicable laws, rules and regulations of the State of New York; nothing contained herein shall be deemed to conflict with any such laws, rules or regulations.
A. 
In their natural state, wetlands serve a myriad of valuable ecological functions important to the public welfare. These functions include, but are not limited to, the following:
(1) 
Protecting water resources by providing sources of surface water, recharging groundwater and aquifers, serving as chemical and biological oxidation basins and/or functioning as settling basins for naturally occurring sedimentation;
(2) 
Controlling flooding and stormwater runoff by storing or regulating natural flows;
(3) 
Providing unique nesting, migratory and wintering habitats for diverse wildlife species, including many on the New York State and Federal Endangered Species lists;
(4) 
Supporting unique vegetative associations specifically adapted for survival in low-oxygen environments;
(5) 
Providing areas of unusually high plant productivity which support significant wildlife diversity and abundance;
(6) 
Providing breeding and spawning grounds, nursery habitat and food for various species of fish;
(7) 
Serving as nutrient traps for nitrogen and phosphorus and filters for surface water pollutants;
(8) 
Helping to maintain biospheric stability by supporting particularly efficient photosynthesizers capable of producing significant amounts of oxygen and supporting bacteria which process excess nitrates and nitrogenous pollutants and return them to the atmosphere as inert nitrogen gas;
(9) 
Providing open space and visual relief from intense development in a rapidly growing area;
(10) 
Serving as outdoor laboratories and living classrooms for the study and appreciation of natural history, ecology and biology and serving generally, as an education and research resource;
(11) 
Providing recreation areas for hunting, fishing, boating, hiking, bird watching, photography, camping and other uses; and
(12) 
Controlling erosion by serving as sedimentation areas and filter basins, absorbing silt and organic matter.
B. 
Trees and woodlands contribute to the health and functionality of wetlands through their vital role in helping to stabilize soil, reducing the risk of soil erosion and siltation in water courses and clogging of drainage channels. Additionally, tree roots provide channels which allow water infiltration, crucial to groundwater and reservoir recharge. Woodlands are especially important in carrying out these functions, not just because of the presence of trees, but because of the presence of canopy, shrub, and ground cover layers of vegetation. Therefore, protecting the integrity of woodlands and their valuable functions requires regulating the removal of any of these three layers in such communities.
[Added 7-7-2020 by L.L. No. 8-2020[1]]
[1]
Editor's Note: This local law also renumbered former Subsection B as Subsection C.
C. 
A significant amount of the town's wetland base has been lost or impaired by draining, dredging, filling, excavating, building, polluting and other acts inconsistent with the natural uses of such areas. The remaining wetlands are in jeopardy of being lost in a similar fashion.
It is the intent of the Town of Yorktown that activities in and around wetlands and watercourses conform with all applicable building codes and other regulations and that such activities not threaten public safety or welfare, the natural environment, or cause nuisances by, but not limited to, the following:
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, improper and careless application and/or disposal of fertilizers, pesticides, herbicides and algaecides in a wetland or shore area; 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 species of waterfowl, shorebirds, fish and other forms of wildlife, including those rare and endangered to the extent that local population levels are affected;
E. 
Interfering with the exchange of nutrients needed by fish and other forms of wildlife to maintain healthy, viable local populations;
F. 
Adversely altering the recharge or discharge functions of wetlands thereby impacting groundwater or surface water supplies;
G. 
Significantly altering the wetland hydroperiod and thereby causing either short- or long-term changes in vegetational composition, soils characteristics, nutrient recycling or water chemistry;
H. 
Destroying sites needed for education and scientific research, such as outdoor biophysical laboratories, living classrooms and training areas;
I. 
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
J. 
Destroying or damaging aesthetic values, including significant public viewsheds and open space.
A. 
It is declared to be the intent of the Town of Yorktown to control, protect, preserve, conserve and regulate the use of wetlands within the Town of Yorktown to ensure that the benefits found to be provided by wetlands as set forth in § 178-3 hereof will not be lost.
B. 
These regulations are enacted with the intent of providing a reasonable balance between the rights of the individual property owners and the public interest in preserving the valuable functions of wetlands.
C. 
It is the intent of this chapter to incorporate wetlands protection into the town's land development regulations.
D. 
It is the goal of the Town of Yorktown to achieve no overall net loss of the town's remaining wetland resources, including wetland buffer areas. Moreover, it is the long term goal of the Town to increase the quantity and quality of the town's wetlands resources in terms of type, functions, geographic location and setting and size.
E. 
It shall be the policy of the Town of Yorktown to develop an official watercourse map to be used to delineate all watercourses, as defined herein, located within the town's boundaries. The Town Engineer and Conservation Board shall develop this map as permits required herein are processed and watercourses are delineated.
F. 
During the introductory stages of the no-net-loss policy, it shall be the intent of the Town of Yorktown to regularly monitor the success of mitigation plans implemented to meet the goals of this policy. The Conservation Board shall, on a yearly basis, provide the Town Board with a report assessing the viability of wetlands created or restored under the no-net-loss policy. The Town Board shall review such report to determine whether further regulation is necessary to assure the success of wetland mitigation in the Town of Yorktown.
A. 
Except where specifically defined herein, all words used in this section shall carry their customary meanings. Words used in the present tense include the future, and the plural includes the singular.
B. 
As used this chapter, the following terms shall have the meanings indicated:
ADMINISTRATIVE PERMIT
A permit issued by the Town Engineer for the conduct of regulated activities in wetlands or buffer areas where such conduct of regulated activities is limited in scope and limited in potential impact as determined by this chapter.
AGRICULTURE
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 this does not include filling, dredging, peat mining or the construction of any buildings or any water regulating structures, such as dams.
[Amended 7-7-2020 by L.L. No. 8-2020]
APPLICANT
Any individual or individuals, firm, partnership, association, corporation, company, organization or other legal entity of any kind, including municipal corporations, governmental agencies or subdivisions thereof, who has a request for a permit to conduct a regulated activity before the approval authority or who has an application pursuant to §§ 178-10 through 178-16 of this chapter before the Town Board.
APPROVAL AUTHORITY 
The administrative board or public official empowered to grant or deny permits under this chapter, to required posting of bonds as necessary and to revoke or suspend, a permit where lack of compliance to the permit is established. The approval authority shall be:
[Amended 2-15-1994 by L.L. No. 6-1994; 12-21-2004 by L.L. No. 24-2004]
(1) 
The Planning Board of the Town of Yorktown for permit applications relating to regulated activities that:
(a) 
Also require site plan, subdivision, parking plan or amended parking plan approval by the Planning Board, except as specified in Subsection B(1)(b) and (c) below. Notwithstanding the foregoing, the Planning Board shall have no power to act as approval authority under the provisions of this chapter, except in conjunction with final site plan, subdivision, parking plan or amended parking plan approval or except as hereinafter provided;
(b) 
Are proposed to be conducted on lots or parcels of land which have received preliminary or final subdivision or site plan approval, provided that no certificate of occupancy has been issued for such lot or provided that the improvements as set forth in Chapter 195, Land Development, have not been completed; or
(c) 
Have received site plan, parking plan or amended parking plan approval, provided that the improvements shown on the plan or otherwise required have not been completed.
(d) 
Are substantially related to the activities described in subparagraphs 1(a) through 1(c) above and that are to occur on lands that are outside the boundaries of but proximate to the particular lot, parcel, piece or tract of real property which is the subject matter of the site plan, parking plan or subdivision being approved by the Planning Board.
(2) 
The Town Engineer of the Town of Yorktown for permit applications relating to regulated activities permitted with an administrative permit as specified in §§ 178-10 through 178-16 of this chapter, subject to the limitations placed upon the Town Engineer's authority to deny such applications as set forth in § 178-6A(2)(3) of this chapter.
(3) 
The Town Board of the Town of Yorktown for all permit applications not covered by Subsections B(1) or (2) above.
BOUNDARY OF A WETLAND
The outer limit of the soils, or hydrology, or vegetation, or any combination thereof, as defined under "wetland/freshwater wetland."
[Amended 1-6-1998 by L.L. No. 1-1998]
BOUNDARY OF A WETLAND
The outer limit of the soils, hydrology and/or vegetation as defined under "wetland/freshwater wetland."
CONSERVATION BOARD
The duly appointed Conservation Board of the Town of Yorktown as created pursuant to § 239 of the General Municipal Law.
DAMS AND WATER CONTROL MEASURES
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.
DATE OF RECEIPT OF APPLICATION BY APPROVAL AUTHORITY
An application shall be deemed received by the approval authority on the date of the first regular meeting of the approval authority following the filing of the application and supporting plans pursuant to the provisions of the law.
DEPOSIT
To fill grade, discharge, emit, dump or place any material or the act thereof.
DISCHARGE
The emission of any water, substance or material into a wetland, watercourse or their buffers, whether or not such substance causes pollution.
DOMINANT(S) OR DOMINANCE
The spatial extent of a species; commonly the most abundant species in each vegetation stratum that, when ranked in descending order of abundance and cumulatively totaled, immediately exceeds 50% of the total dominance measure (e.g., area cover or basal area) for the stratum, plus any additional species comprising 20% or more of the total dominance measure for the stratum.
DRAIN
To deplete or empty of water by drawing off by degrees in increments.
DREDGE
To excavate or remove sediment, soil, mud, sand, shells, gravel or other aggregate.
ECOLOGIST/BOTANIST
A person having special knowledge by reason of education and work experience of the physical, chemical and biological sciences related to the physiology, identification and distribution of native plants and vegetative associations in wetland and upland systems and of methods to describe, classify, and delineate vegetative species and associations to a degree acceptable to the Conservation Board and to the approval authority.
EMERGENCY
An event which presents an immediate threat to life, health, property or natural resources.
[Added 5-4-2004 by L.L. No. 13-2004]
EXCAVATE
To dig out and remove any material from a wetland or wetland buffer.
ENVIRONMENTAL CLERK
An employee of the Town of Yorktown, or an independent contractor engaged by the Town of Yorktown, designated to perform, inter alia, the duties of the Environmental Clerk as set forth in this chapter.
ENVIRONMENTAL CODE INSPECTOR
The duly appointed Town officials charged with the duty of inspecting and enforcing the environmental laws of the Town of Yorktown, including but not limited to Chapter 165, Erosion Control and Soil Removal, and this chapter.
FACULTATIVE SPECIES
Vegetative species that can occur in both upland and wetland systems. There are three subcategories of facultative species: facultative wetlands, straight facultative and facultative upland. Under natural conditions, a facultative wetland species is usually (estimated probability of 67% to 99%) found in wetlands, but occasionally in uplands; a straight facultative species has basically a similar likelihood (estimated probability of 34% to 66%) of occurring in both wetlands and uplands; a facultative upland species is usually (estimated probability of 67% to 99%) found in uplands, but occasionally in wetlands. Facultative species for the Northeast are listed in the Wetland Plants of the State of New York 1986, published by the United States Fish and Wildlife Service in cooperation with the National and Regional Wetland Plant List Review Panels, and as updated from time to time. Such lists shall be available at the Town Clerk's office.
FILL
See "deposit."
FLAGGING
Delineating on site whereupon the applicant's ecologist has placed visible markers at the wetland boundary, which, upon approval by the town, can be transferred by a qualified surveyor to the site plan.
FRESHWATER WETLANDS MAP
The final freshwater wetlands maps for Westchester County promulgated by the Commissioner of the New York State Department of Environmental Conservation pursuant to § 24-0301.5 of the New York State Freshwater Wetlands Act, 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.
GRADING
To adjust the degree of inclination of the natural contours of the land, including leveling, smoothing and other modification of the natural land surface.
GROWING SEASON
The portion of the year when soil temperatures are above biologic zero (5º C.); the growing season for Westchester County is March through October.
HIGHWAY SUPERINTENDENT
The person duly elected to the office of Highway Superintendent of the Town of Yorktown pursuant to Article III of Chapter 65 of the Code of the Town of Yorktown and, if and when the said person is absent or is unable to perform the duties of his or her office for any other reason, the duly appointed Deputy Highway Superintendent.
[Added 5-4-2004 by L.L. No. 13-2004]
HYDRIC SOIL
A soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part and as further defined under "wetland."
HYDROPHYTIC VEGETATION
Plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content, and as further defined under "wetland."
MATERIAL
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.
MICROSITE
A small site supporting facultative or obligate vegetation anomalous within the context of the larger vegetative unit. Microsites may be drier or wetter than surrounding areas as a result of altered drainage, incidental topographic variation or a related characteristic.
MINERAL SOIL
A soil consisting predominantly of and having its properties determined predominantly by mineral matter. Mineral soils usually contain less than 20% organic matter by weight.
MITIGATION PLAN
The plan prepared by the applicant pursuant to § 178-17B when the applicant has demonstrated that either losses or impacts to the wetland or wetland buffer are necessary and unavoidable, as defined in § 178-17A, and have been minimized to the maximum extent practicable.
MUNICIPALITY
The Town of Yorktown.
MUNSELL SOIL COLOR CHART
A soil color designation system that specifies the relative degree of the three simple variables of color (hue, value and chroma), produced by the Kollmorgen Corporation, 1975, or as amended or updated from time to time.
OBLIGATE UPLAND SPECIES
Plant species that, under natural conditions, always occur in uplands (i.e., greater than 99% of the time). The less than one-percent difference allows for anomalous wetland occurrences (i.e., occurrences that are the result of human-induced disturbances and transplants). Obligate upland species for the Northeast are listed in the Wetland Plants of the State of New York 1986, published by the United States Fish and Wildlife Service, in cooperation with the National and Regional Wetland Plant List Review Panels and as updated from time to time. Such lists shall be available at the Town Clerk's office.
OBLIGATE WETLAND SPECIES
Plant species that, under natural conditions, always occur in wetlands (i.e., greater than 99% of the time). The less than one-percent difference allows for anomalous upland occurrences (i.e., occurrences that are the result of human-induced disturbances and transplants). Obligate wetland species for New York State are listed in Wetland Plants of the State of New York 1986, published by the United States Fish and Wildlife Service, in cooperation with the National and Regional Wetland Plant List Review Panels, and as updated from time to time. Such lists shall be available at the Town Clerk's officer.
ORGANIC SOILS/HISTOSOLS
A taxonomic order composed of organic soils (mostly peats and mucks) that leave organic materials in over half the upper 3 inches, unless the depth to rock or to fragmental materials is less than 32 inches (a rare condition) or the bulk very low, and as further defined under "wetland.
PERMIT OR WETLANDS PERMIT
That form of written municipal approval required by this chapter for the conduct of a regulated activity within a wetland or wetland buffer.
PERSON
Any individual, firm, company, association, society, corporation or group
[Amended 5-4-2004 by L.L. No. 13-2004]
PLANNING BOARD
The duly appointed Planning Board of the Town of Yorktown as created pursuant to § 271 of the Town Law.
PROJECT
Any proposed or ongoing action which may result in direct or indirect physical or chemical impact on a wetland, including, but not limited to, any regulated activity.
PROTECTED WOODLAND
A woodland as defined herein that is 10,000 square feet or greater in area regardless of individual property boundaries.
[Added 7-7-2020 by L.L. No. 8-2020]
REMOVE
To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or grade, or the act thereof.
SOIL SCIENTIST
A person having special knowledge by reason of education and work experience of the physical, chemical and biological sciences applicable to the genesis and morphology of soils as natural bodies and of the methods to describe, classify and map soil units, to a degree acceptable to the Conservation Board and to the approval authority.
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
The law pursuant to Article 8 of the New York Environmental Conservation Law providing for environmental quality review of actions which may have a significant effect on the environment.
STRUCTURE
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.
TOWN
The Town of Yorktown.
TOWN BOARD
The duly elected Town Board of the Town of Yorktown.
TOWN CLERK
The duly elected Town Clerk of the Town of Yorktown.
TOWN ENGINEER
The person duly appointed, employed, engaged or hired by the Town Board of the Town of Yorktown to serve as Town Engineer and, if and when the said person is absent or is unable to perform the duties of his or her office for any other reason, the duly appointed Deputy Town Engineer.
[Amended 5-4-2004 by L.L. No. 13-2004]
WATERBODY
Any natural or artificial pond, lake, reservoir or other area which ordinarily or intermittently contains water and which has a discernible shoreline, but not including a watercourse as defined in this chapter.
WATERCOURSE
A running stream of water; a natural stream fed from permanent or natural sources, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed or banks, and usually discharges itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of the tract of land, occasioned by unusual freshets or other extraordinary causes.
WATER SUPERINTENDENT
The person duly appointed, employed, engaged or hired by the Town Board of the Town of Yorktown to serve as Water Superintendent and, if and when the said person is absent or is unable to perform the duties of his or her office for any other reason, the duly appointed Deputy Water Superintendent.
[Added 5-4-2004 by L.L. No. 13-2004]
WETLAND/FRESHWATER WETLAND 
Any area which meets one or more of the following criteria
(1) 
Watercourses and waterbodies.
(2) 
Lands and waters that meet the definition provided in § 24-0107.1 of the New York State Freshwater Wetlands Act (Article 24 and Title 23 of Article 71 of the Environmental Conservation Law). The approximate boundaries of such lands and water, are indicated on the official freshwater wetlands map promulgated by the Commissioner of the New York State Department or Environmental Conservation pursuant to § 24-0301.5 of the Act, or such a map that has been amended or adjusted pursuant to § 24-0301.6 of Title 23 of Article 71 of the Environmental Conservation Law.
(3) 
All areas greater than 1,000 square feet in area that comprise hydric soils and/or are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support and under normal circumstances do support a prevalence of hydrophytic vegetation as defined by the Federal Interagency Committee for Wetland Delineation, 1989, in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, Washington, D.C., and adopted by the United States Army Corp of Engineers, United States Environmental Protection Agency, and the United States Fish and Wildlife Service.
WETLAND PLANTS OF THE STATE OF NEW YORK 1986
The list of obligate and facultative upland and wetland plant species developed by the United States Department of the Interior, Fish and Wildlife Service, in cooperation with the National and Regional Wetland Plant List Review Panels, as amended and updated from time to time (available in the Town Clerk's office).
WETLAND HYDROLOGY
The sum total of wetness characteristics in areas that are inundated or have saturated soils for a sufficient duration to support hydrophytic vegetation.
WETLAND/WATERCOURSE BUFFER
A buffer area surrounding a wetland that is also subject to the regulations for wetlands as defined herein. The exact size of the wetland/watercourse buffer shall be determined as follows:
(1) 
Except as provided in Subsection (2) of this definition, the wetland/watercourse buffer shall extend at least 100 feet away from the edge of the wetland as measured horizontally from the boundary of the wetland;
[Amended 5-4-2004 by L.L. No. 13-2004]
(2) 
The buffer of watercourses includes all adjacent surfaces for 100 feet as measured from the bank of the watercourse, or the high-water mark, whichever is more.
(3) 
The buffer of watercourses includes all adjacent surfaces for 100 feet as measured from the bank of the watercourse, or the high-water mark, whichever is more.
WOODLAND
A contiguous area of vegetation consisting of trees as the dominant species along with an understory of shrubs and herbaceous ground cover. The driplines of the outermost trees shall define the boundary of the woodland. A protected woodland shall be deemed to exist even if it has been degraded by invasive plant species.
[Added 7-7-2020 by L.L. No. 8-2020]
WOODLAND DISTURBANCE
Any activity which alters the existing structure of a protected woodland. Alterations include the cutting or removal of any canopy trees, understory shrubs, herbaceous woodland ground cover as well as the removal of humus or duff from the ground.
[Added 7-7-2020 by L.L. No. 8-2020]
YORKTOWN TOPOGRAPHY AND SURFACE HYDROLOGY MAP
The Yorktown Wetlands and Drainage Map dated May 1987, prepared by Frederick P. Clark Associates and the Yorktown Conservation Board, adopted by the Town Board and as from time to time updated, that shows the approximate location of areas that can be classified as wetlands. GENERAL NOTE: The Yorktown Topography and Surface Hydrology Map is intended to provide general guidance in locating and determining those areas which constitute wetlands, as defined herein. Finite boundaries of wetlands shall be confirmed by the approval authority.
The boundaries of a wetland ordinarily shall be determined by field investigation, flagging 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 biologists, hydrologists, soil scientists, ecologists/botanists or other experts as necessary to make this termination pursuant to the definition criteria contained in § 178-6. When required to consult with experts, the applicant shall either hire a consultant from the list available in the Town Clerk's office or other consultants approved by the Conservation Board.
[Amended 10-17-2006 by L.L. No. 13-2006]
The provisions of this chapter shall apply to all lands defined and/or designated wetlands/watercourses and buffers. All applications for any building permit, site plan approval, subdivision approval or any other land use development or land altering or disturbance permit issued by any approval authority shall be accompanied by a wetlands and watercourses clearance form, which shall be obtained by an applicant from the Town Engineer.
No regulated activity shall be conducted in a wetland or wetland/watercourse buffer without a written permit from the approval authority and full compliance with the terms of this chapter and other applicable regulations.
A. 
Permitted activities. The following uses shall be permitted as-of-right within a wetland or wetland/watercourse buffer to the extent that they are not prohibited by any other ordinance; they do not constitute a pollution or erosion hazard or interfere with proper drainage; and they do not require structures, grading, fill, draining or dredging for which a permit may be required:
(1) 
Normal ground maintenance, including mowing, trimming of vegetation and removal of dead or diseased vegetation around a residence.
(2) 
Repair of existing walkways and walls.
(3) 
Maintenance of existing decorative landscaping and planting in wetland/watercourse buffers, excluding those activities regulated in Subsections B(11) and (12).
(4) 
Public health activities and orders of the Westchester County Department of Health and/or the New York State Department of Health for emergencies only.
(5) 
Deposition or removal of natural products of wetlands in the process of recreational or commercial fishing, shellfishing, hunting or trapping, but excluding excavation and removal of peat or timber.
(6) 
Operation and maintenance of existing dams and water control devices, limiting the adjustment of water elevations to 18 inches in height for periods of less than one week after which the water level is returned to its previous level.
(7) 
Removal of debris, leaves, and dead or diseased vegetation that are obstructing flow within a wetland or wetland buffer.
[Added 12-21-2004 by L.L. No. 24-2004[1]]
[1]
Editor's Note: Former Subsection A(7), regarding gardening activities, was repealed 4-2-2002 by L.L. No. 2-2002.
(8) 
Manual removal of accumulated sediment, up to a maximum of two cubic yards, located within five feet of the end of a pipe which crosses under a road or driveway. All Erosion Ordinance requirements must be followed.
[Added 12-21-2004 by L.L. No. 24-2004]
B. 
Regulated acts which require a wetlands permit. Except as provided in Subsection A, it shall be unlawful, in the absence of a specific written permit issued by, the approval authority, to do any of the following activities in any wetland or buffer area:
(1) 
Placement or any construction of any structure.
(2) 
Any form of draining, dredging, excavation, or removal of material either directly or indirectly.
(3) 
Any form of dumping, filling or depositing of material, either directly or indirectly.
(4) 
Installation of any service lines or cable conduits.
(5) 
Introduction of any form of pollution, including but not limited to the installation of a septic tank, the running of a sewer outfall, or the discharging of sewage treatment, effluent or other liquid wastes into or so as to drain into a wetland.
(6) 
Alteration or modification of natural features and contours.
(7) 
Alteration or modification of natural drainage patterns and watercourses.
(8) 
Construction of dams, docks, or other water control devices, pilings or bridges, whether or not they change the natural drainage characteristics.
(9) 
Operation of existing dams and water control devices, involving the adjustment of water level more than 18 inches or any adjustment of water level which is in place for more than one week.
(10) 
Installation of any pipes or wells.
(11) 
Within the same one-acre area, the cutting of more than three trees which are over eight inches in diameter at a point 4 1/2 feet from ground level within a twelve-month period.
[Amended 12-14-2010 by L.L. No. 16-2010; 7-7-2020 by L.L. No. 8-2020]
(12) 
Plowing and/or harrowing.
(13) 
Grazing of horses and/or other animals.
(14) 
Any other activity that may impair the natural function(s) of a wetland, as described in this chapter.
(15) 
Application and/or the use of herbicides, pesticides and any regulated chemicals and materials.
[Added 5-4-2004 by L.L. No. 13-2004]
C. 
Prohibited acts. It shall be unlawful to place or deposit chemical wastes or to introduce influents of sufficiently high thermal content as to cause deleterious ecological effect in any wetland or buffer area.
A. 
Administrative permit applications.
(1) 
The application shall contain the following information:
(a) 
Name and post office address of owner and applicant.
(b) 
Street address and tax map designation of property covered by the application.
(c) 
Statement with consent from the owner for any agent making application.
(d) 
Statement of proposed work and purpose thereof.
(e) 
Applications affecting the water retention capacity, water flow or other drainage characteristics of any wetland shall include a statement of the impact of the project on upstream and downstream areas giving appropriate consideration to flood or drought levels of watercourses and amounts of rainfall.
(f) 
The location, boundaries and square footage of protected woodland on the site that will be disturbed.
[Added 7-7-2020 by L.L. No. 8-2020[1]]
[1]
Editor's Note: This local law also renumbered former Subsection A(1)(f) and (g) as Subsection A(1)(g) and (h), respectively.
(g) 
Copies of all applicable county, state or federal permits or permit applications that are required for such work or improvement, unless such permits are conditioned upon obtaining a permit under this chapter.
(h) 
An application fee in the amount set forth in § 168-1, Master Fee Schedule for Land Development Applications and Permits, shall be charged and collected upon the filing of the application.
[Amended 10-17-2006 by L.L. No. 13-2006; 10-5-2010 by L.L. No. 9-2010]
(2) 
Review of application by Town Engineer.
(a) 
Unless an applicant requests, in writing, that his application not be considered for an administrative permit, the Environmental Clerk, upon receipt of an application prepared in accordance with Subsection A(1) above, shall forward one copy of the application and supporting plans and documentations to the Town Engineer. The four additional copies shall stay in a central wetlands file in the Environmental Clerk's office available for public review and interdepartmental referral.
(b) 
The Town Engineer shall review the application and any supporting plans and documentation for the purpose of determining whether or not the application is eligible for treatment under the provisions of Subsection A(3), Regulated acts permitted within an administrative permit. If the Town Engineer requires additional information, plans or specifications in order to make such determination, he shall so notify the applicant within 15 days after receipt of the application by the Town Engineer.
(c) 
If the Town Engineer determines that the application is not eligible for treatment under the provisions of Subsection A(3) of this chapter, he shall provide written notice of such decision to the applicant and the Environmental Clerk, and return the application to the Environmental Clerk. The application shall then be processed by the appropriate approval authority.
(d) 
If the Town Engineer determines that the application is eligible for treatment under the provisions of Subsection A(3) of this chapter, he shall process the application within 90 days of receipt of a complete application in accordance with the provisions of this chapter.
(3) 
Regulated acts permitted with an administrative permit.
(a) 
The following regulated activities are determined by this chapter to be limited in scope and limited in potential impact. The approval authority for applications to conduct these regulated activities shall be the Town Engineer. However, in the event that the Town Engineer determines that the granting of an administrative permit would be inappropriate in light of the standards set forth in § 178-12 of this chapter, the Town Engineer shall neither approve nor deny the application, but rather shall return the file application to the Environmental Clerk for processing in accordance with the procedures set forth in Subsection A(2)(c) of this chapter. It the Town Engineer determines that the granting of an administrative permit would be appropriate in light of the standards set forth in § 178-12 of this chapter, the Town Engineer shall grant the application in accordance with the provisions of Subsection A(2)(d) of this chapter. Notwithstanding the foregoing, the Town Engineer, in his sole discretion, may return any application for an administrative permit to the Environmental Clerk for processing in accordance with the provisions of Subsection A(2)(c) of this chapter. Proposed regulated activities within wetlands or wetlands buffer areas for which an administrative permit may be granted are:
[1] 
The performance of a regulated act, as set forth in § 178-9 which does not require subdivision approval, site plan approval, or the issuance of a special permit by either the Town Board or the Planning Board and where any deposition or removal of material from the wetland or buffer area is not in excess of 300 cubic yards over a one-year period.
[Added 4-2-2002 by L.L. No. 2-2002; amended 10-17-2006 by L.L. No. 13-2006]
[2] 
Construction of a driveway when the length of a wetland or buffer area crossing or intrusion is less than 225 feet, excluding the construction of driveways of any length which causes hydrological isolation of a portion of wetlands and if a natural drainage system crossing is proposed, where a single culvert of less than 25 feet in length and 18 inches in diameter is required.
[3] 
The application of nonpolluting chemicals and dyes for the purpose of maintenance that does not change the character of the wetland (such as Health Department testing).
(b) 
Notwithstanding the foregoing, the following activities shall not be permitted with any administrative permit:
[Amended 10-17-2006 by L.L. No. 13-2006]
[1] 
Any activities proposed for areas designated wetlands or wetland buffer on the most recent New York State Freshwater Wetlands Map;
[2] 
Construction of swimming pools accessory to a single-family residence, including associated grading located within 50 linear feet of a wetland;
[3] 
Construction of building additions, structural alterations, replacements, detached accessory structures, decks and/or patios in excess of a ground footprint of 800 square feet within 50 linear feet of a wetland;
[4] 
Construction of new residential, commercial or industrial buildings within the wetland or one-hundred-foot wetland buffer;
[5] 
Grading or land disturbance of greater than 10,000 square feet in spatial extent within the wetland or one-hundred-foot wetland buffer whether or not associated with building construction.
(4) 
Notice provisions. The deed, contract of sale and final plat of any land subdivided subsequent to the enactment of this chapter shall describe any wetlands or buffer areas governed by this chapter and include a covenant to run with the land and note on the deed and final plat respectively that any construction within these areas requires a wetlands permit.
B. 
Nonadministrative permit applications.
(1) 
The application shall contain the following information:
(a) 
A name and address of the owner.
(b) 
The street address and tax map designation to the property.
(c) 
A statement of authority from the owner for any agent making application.
(d) 
A statement of proposed work and purpose thereof, and an explanation why the proposed activity cannot be located at another site.
(e) 
A list of names of the owners of record of lands adjacent to the wetland or wetland/watercourse buffer in which the project is to be undertaken, and the names of claimants of water rights, which relate to any land within, or within 100 feet of the boundary of the property on which the proposed regulated activity will be located.
(f) 
Complete plans and estimates for the proposed site improvements, which shall be certified by an engineer, architect, land surveyor, or landscape architect licensed in the State of New York, drawn to a scale no less detailed than one inch equals 50 feet, and showing the following:
[1] 
The location of all wetlands and/or watercourses on the site under review and within 200 feet, as determined by a qualified ecologist/botanist and/or soil scientist, no earlier than 12 months prior the date of filing the application.
[2] 
A description of the vegetative cover of the regulated area, including dominant species.
[3] 
A description of the soil types on-site.
[4] 
The location, boundaries and square footage of protected woodland that will be disturbed.
[Added 7-7-2020 by L.L. No. 8-2020[2]]
[2]
Editor's Note: This local law also renumbered former Subsection B(1)(f)[4] through [13] as Subsection B(1)(f)[5] through [14], respectively.
[5] 
The location of the construction area, or area proposed to be disturbed, and its relation to property lines, roads, buildings and watercourses within 250 feet.
[6] 
The exact locations, specifications and amount of all proposed draining, fill, grading, dredging and vegetation removal or displacement, including the amount computed from cross-sections, and the procedures to be used to do the work.
[7] 
The location of any well(s) and depth(s) thereof and any disposal system.
[8] 
Existing and adjusted contours at two-foot intervals in the proposed disturbed area, and to a distance of 50 feet beyond; and elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than 10 feet.
[9] 
Details of any temporary or permanent drainage 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.
[10] 
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 fluctuations inflow/outflow calculations, and subsurface soil, geology and groundwater conditions.
[11] 
Where creation of a detention basin is proposed, with or without excavation, details of the construction of any dams, berms, embankments, outlets, or other water control devices, and an analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations, and subsurface soil, geology and groundwater conditions.
[12] 
On the plan for development, a means on site for a line of demarcation between the development and the wetland and/or wetland buffer area.
[13] 
A completed long-form environmental assessment form as required by the New York State Environmental Quality Review Act.
[14] 
All information relating to a permit application, including but not limited to:
[a] 
The application itself;
[b] 
Additional required materials or information;
[c] 
Notices;
[d] 
Record of hearings; and
[e] 
Written comments.
(g) 
Copies of all applicable county, state or federal permits or permit applications that are required for such work.
(2) 
The approval authority may require additional information as needed. Such additional information may include, but is not limited to:
(a) 
The study of flood, erosion, or other hazards at the site;
(b) 
The effect of any protective measures that might be taken to reduce such hazards; and
(c) 
Any other information deemed necessary to evaluate the proposed use in terms of the goals and standards of this chapter.
(3) 
An application fee in the amount set forth in § 168-1, Master Fee Schedule for Land Development Applications and Permits, shall be charged and collected upon the filing of the application.
[Amended 10-17-2006 by L.L. No. 13-2006; 10-5-2010 by L.L. No. 9-2010]
(4) 
Findings shall be maintained on file in the office of the Environmental Clerk.
(5) 
The Town Board, upon findings that a proposed action is consistent with the activities as set forth in § 178-9, may refer any regulated activity subject to its review and approval for disposition by the Town Engineer may attach conditions thereto.
[Added 10-7-2014 by L.L. No. 4-2014]
C. 
Emergency permits
[Added 5-4-2004 by L.L. No. 13-2004]
(1) 
The Town Board or Town Engineer, whichever is the approval authority, may issue a wetland permit to all or any of the Highway Superintendent, the Town Engineer or the Water Superintendent, as defined in § 178-6, for purposes of dealing with an emergency in any wetland or wetland buffer area where said emergency is occurring throughout the Town of Yorktown. Notwithstanding the issuance of such emergency permit, the proper erosion control measures shall be taken during such activity.
(2) 
For projects carried out in response to an emergency, the following procedures shall apply:
(a) 
All procedural requirements of this chapter related to application processing are waived, except as provided in this section
(b) 
Prior to commencement of the project, the Town Engineer must be notified. If circumstances warrant immediate action by the Highway Superintendent, Water Superintendent, or Town Engineer and prior notice to the approval authority is not possible, then the approval authority must be notified by the party taking emergency action within 24 hours after commencement of the emergency action. Notification must be by written form of communication. This written notification must be followed within 24 hours by submission of the following information to the approval authority:
[1] 
A description of the proposed action;
[2] 
Location map and plan of the proposed project; and
[3] 
Reasons why the situation is an emergency.
D. 
General permits.
[Added 10-17-2006 by L.L. No. 13-2006]
(1) 
The Town Board may issue general permits which shall be for activities proposed within wetland or wetland buffers that shall encompass greater than a one-year period to complete or shall be part of an approved comprehensive wetland plan. Following review and approval by the Town Board, the general permit holder will be required to annually review the progress and conditions of the project with the Town Engineer who will then recommend to the Town Board continuance or discontinuance of the general permit.
(2) 
An application fee in the amount set forth in § 168-1, Master Fee Schedule for Land Development Applications and Permits, shall be charged and collected upon the filing of the application.
[Amended 10-5-2010 by L.L. No. 9-2010]
E. 
Referral to professional consultants. The approval authority, in the review of any permit application, may refer such application to such planner, engineer, legal or environmental expert, soil scientist, ecologist, biologist, or other professional as the approval authority shall deem reasonably necessary to assist it in the review of such application as required by law and pursuant to Chapter 168, § 168-4 of the Code of the Town of Yorktown.
[Added 10-17-2006 by L.L. No. 12-2006; amended 10-5-2010 by L.L. No. 9-2010]
F. 
Escrow accounts.
[Added 10-17-2006 by L.L. No. 12-2006; amended 10-5-2010 by L.L. No. 9-2010]
(1) 
At the time of submission of any application, the approval authority may require the establishment of an applicant-funded escrow account as set forth in the Master Fee Schedule[3] from which withdrawals shall be made to reimburse the Town for the cost of anticipated outside professional review services.
[3]
Editor's Note: See § 168-1, Master Fee Schedule for Land Development Applications and Permits.
(2) 
If unanticipated issues arise during the course of reviewing an application and the approval authority determines that additional outside professional review services are needed in order to properly and adequately complete its review of the application, the approval authority may request that an appropriate consultant submit, in writing, a proposal explaining what additional review work is required and what the estimated additional cost will be.
(3) 
If the balance in the applicant's escrow account is not sufficient to cover the cost of the additional professional review identified in Subsection B, the applicant shall be required to deposit additional funds into such escrow account as are necessary to cover the estimated additional cost as determined by the approval authority.
(4) 
If the applicant's escrow account is not replenished within 21 days after the applicant is notified, in writing, of the requirement for such additional deposit, the approval authority may suspend its review of the application until such time as the applicant has replenished the escrow account.
(5) 
Upon receipt of a proper and complete voucher from a consultant for services rendered, the Town shall debit the applicant's escrow account to pay the fees due to the consultant. The Town shall provide the applicant with copies of all vouchers and work products for such consultant services as they are submitted to the Town.
(6) 
If, after reviewing a consultant's voucher, an applicant wishes to question a charge and/or work product(s) included in the voucher, the applicant may appeal the charge to the approval authority, in which case the approval authority will be the final arbiter as to the appropriateness of the charge. Any such appeal must be made within 30 days of the receipt of the voucher.
(7) 
In the event that a positive declaration is determined in accordance with Section 617 of the New York State Environmental Quality Review Act (SEQRA) regarding the subject application, the use of professional consultants to review the application may be suspended until after completion of the SEQRA process.
(8) 
No permits, certificates of occupancy, certificates of compliance, site plan or subdivision approvals, special permits, variances or other permits or approvals shall be issued by any administrative officials or municipal boards of the Town unless all professional review fees charged in connection with the applicant's project have been reimbursed to the Town.
(9) 
Following final decision by the approval authority or withdrawal of the application by the applicant, and after all pertinent fees have been paid, the Town shall refund to the applicant any funds remaining on deposit in the escrow account upon receipt of a written request from the applicant. The refund shall be made within 21 days of the date the Town receives the applicant's written request for refund, provided that all conditions precedent to the refund have been satisfied.
G. 
Monitoring and inspection fees.
[Added 10-17-2006 by L.L. No. 12-2006]
(1) 
At the time of approval of a permit application, the approval authority shall determine the required monitoring and inspection fees based on the complexity and substance of the authorized regulated activity.
(2) 
To perform specific monitoring duties as required by this chapter, the Town may contract with a professional consultant to provide independent monitoring and inspection services.
(3) 
To provide for the payment of the costs of monitoring services, the approval authority may require a permittee to establish a monitoring and inspection escrow account with the Town. The permittee shall then provide funds to the Town for deposit into such account in an amount to be determined by the approval authority.
(4) 
Upon receipt of a proper and complete voucher from the professional consultants for services rendered, the Town shall debit the permittee's escrow account to pay the fees due to the consultant. Upon request, the permittee shall be provided with copies of any voucher for such consultant services as they are submitted to the Town.
(5) 
When the balance in the permittee's escrow account is reduced to 1/3 of its initial amount, the permittee may be required to deposit additional funds into such escrow account to bring the balance up to the amount of the initial deposit or to such lesser amount as deemed sufficient by the approval authority to provide necessary monitoring and inspection through completion of the permitted project. If such account is not replenished within 15 days after the permittee is notified, in writing, of the requirement for such additional deposit, the approval authority may order the suspension of all work or other activity pursuant to the permit until such time as the permittee has replenished the escrow account.
(6) 
No permits, certificates of occupancy, certificates of compliance, site plan or subdivision approvals, special permits, variances or other permits or approvals shall be issued by any administrative officials or municipal boards of the Town unless all monitoring and inspection fees charged in connection with the permittee's project have been reimbursed to the Town.
(7) 
Following satisfactory completion of all work or other activity pursuant to the permit granted by the approval authority and after all pertinent charges have been paid, the Town shall refund to the permittee any funds remaining on deposit in the escrow account upon receipt of a written request from the permittee. The refund shall be made within 21 days of the date the Town receives the permittee's written request for refund, provided all conditions precedent to the refund have been satisfied.
A. 
No regulated activity shall be conducted without an issuance of a written permit from the approval authority.
B. 
An application shall not be deemed complete until and unless the applicant has complied fully with the procedures of the State Environmental Quality Review (Article 8 of the State Environmental Conservation Law). No wetland permit may be issued until the State Environmental Quality Review Act procedures have been completed.
C. 
The original and five copies to the wetlands permit application shall be filed with the Environmental Clerk, along with an application fee in accordance with schedule of fees on file with the Environmental Clerk. The Environmental Clerk will forward a copy of application to:
(1) 
The approval authority.
(2) 
The Conservation Board.
(3) 
The Tree Conservation Advisory Committee if the permit is for activity in a protected woodland.
[Added 7-7-2020 by L.L. No. 8-2020[1]]
[1]
Editor's Note: This local law also renumbered former Subsection C(3) and (4) as Subsection C(4) and (5), respectively.
(4) 
In the case of a wetland or watercourse crossing the Town line, the Clerk of the abutting town.
(5) 
In the case of a wetland or watercourse crossing a county line, the Clerk of the abutting county.
D. 
In the case of permit applications for disturbance to a protected woodland, the approval authority shall forward any attached mitigation plan to the Conservation Board and Tree Conservation Advisory Committee.
[Added 7-7-2020 by L.L. No. 8-2020[2]]
[2]
Editor's Note: This local law also renumbered former Subsections D and E as Subsections E and F, respectively.
E. 
In the case of nonadministrative permits, the Conservation Board shall, within 45 days of receipt of an application, issue a memorandum to the approval authority addressing:
(1) 
The completeness of the application.
(2) 
And recommending whether the application should be handled as an Administrative Permit.
(3) 
If the application is complete, making recommendation on approval, denial or approval on condition, with suggested conditions provided. Failure of the Conservation Board to issue a timely report shall be considered to constitute a waiver of any objections to the application.
F. 
Nonadministrative permits.
(1) 
The approval authority shall, for a nonadministrative permit, within 30 days of receipt of the Conservation Board's memorandum, make a finding of the completeness of the application. If rendered in complete, the application shall be returned to the applicant with a list of deficiencies.
(2) 
In the case of nonadministrative permits sought in conjunction with a subdivision approval, the approval authority shall open a public hearing on the requested wetland permit concurrently with the public hearing on preliminary subdivision approval. Public notice and notice to interested parties of the wetland permit hearing shall be provided along with the notice required by the Town Code of the Town of Yorktown for the hearing on the preliminary subdivision approval. The approval authority shall issue a preliminary decision statement on the wetlands permit application within 45 days of the close of the above-mentioned public hearing. The approval authority shall issue a final written decision on the wetland permit concurrently with the decision on final subdivision approval.
(3) 
In the case of nonadministrative permits sought in conjunction with a site plan approval, the approval authority shall open a public hearing on the requested wetland permit concurrently with the public hearing on site plan approval. Public notice and notice to interested parties of the wetland permit hearing shall be provided, along with the notice required by the Town Code of the Town of Yorktown for the hearing on site plan approval. The approval authority shall issue a final written decision on the wetland permit concurrently with the final decision on site plan approval.
(4) 
In the case of all other nonadministrative permits, the approval authority shall open a public hearing within 30 days of its finding the application complete. Public notice of such hearing shall be given at least 10 days prior to the date set for the hearing in a newspaper having general circulation in the Town. The applicant shall provide prior notice of such hearing to interested parties pursuant to the provisions of Chapter 205, Notification of Interested Parties. Within 30 days of the close of the public hearing, the approval authority shall render a written decision on the application.
(5) 
In the case of substantial amendment of any previously approved, unexpired nonadministrative permits, the approval authority shall open a public hearing within 30 days of its finding the application complete. Public notice of such hearing shall be given at least 10 days prior to the date set for the hearing in a newspaper having general circulation in the Town. The applicant shall provide prior notice of such hearing to interested parties pursuant to the provisions of Chapter 205, Notification of Interested Parties.[3] Within 30 days of the close of the public hearing, the approval authority shall render a written decision on the application.
[Added 12-21-2004 by L.L. No. 24-2004]
[3]
Editor's Note: See Ch. 205, Notification of Proposed Land Use Activity or Regulation.
G. 
A wetland permit application can be granted without conditions, granted subject to conditions or denied. Any conditions of a wetlands permit shall be in writing and shall be attached to, or incorporated by reference into the written decision.
A. 
Consideration. In granting, denying or conditioning any permit, the approval authority shall consider the following:
(1) 
All evidence offered at any public hearing.
(2) 
Any reports from other commissions and/or federal, county, state or Town agencies.
(3) 
Additional requested information by the approval authority.
(4) 
All relevant facts and not circumstances, including but not limited to the following:
(a) 
The environmental impact of the proposed action;
(b) 
The alternatives to the proposed action;
(c) 
Irreversible and irretrievable commitments of resources that would be involved in the proposed activity;
(d) 
The character and degree of injury to, or interference with, safety, health or the reasonable use of property that is caused or threatened;
(e) 
The suitability or unsuitability of such activity to the area for which it is proposed; and
(f) 
The effect of the proposed activity with reference to the protection or enhancement functions of wetlands and the benefits they provide which are set forth in § 178-3 of this chapter and in § 24-0103 of the Environmental Conservation Law.
(5) 
The availability of preferable alternative locations on the subject parcel or, in the case of activity of sufficient magnitude, the availability of the reasonable locations.
(6) 
The availability of further technical improvements or safeguards that could feasibly be added to the plan or action.
(7) 
The possibility of further avoiding reduction of the wetland or watercourse's natural capacity to support desirable biological life, prevent flooding, supply water, control sedimentation and/or prevent erosion, assimilate wastes, facilitate drainage and provide recreation and open space.
(8) 
The extent to which the exercise of property rights and the public benefit derived from such use may or may not outweigh or justify the possible degradation of the inland wetland or watercourse, the interference with the exercise of other property rights and impairment or endangerment of public health, safety or welfare.
B. 
Findings.
(1) 
Permits will be issued by the approval authority pursuant to this chapter only if the approval authority shall find that:
(a) 
The proposed regulated activity is consistent with the policy of this chapter to preserve, protect and conserve wetland functions and the benefits they provide, as set forth in § 178-3 of this chapter, by preventing the despoliation and destruction of wetlands and regulating the development of such wetlands consistent with the general welfare and development of the town.
(b) 
The proposed regulated activity is consistent with the land use regulations governing wetlands application in the Town of Yorktown and the local legislation is at least as restrictive as the laws of New York State regarding wetlands protection.
(c) 
The proposed regulated activity is compatible with the public health and welfare.
(d) 
The proposed regulated activity cannot practically be relocated on the site so as to eliminate or reduce the intrusion into the wetland and/or wetland/watercourse buffer.
(e) 
The proposed regulated activity minimizes the degradation to or loss of any part of the wetlands and the wetland buffer and minimizes any adverse impacts on the functions and benefits that said wetland provides as set forth in § 178-3 of this chapter.
(f) 
The proposed regulated activities are in compliance with the standards set forth in 6 NYCRR 665.7(e) and 66S.7(g), as amended.
(2) 
The applicant shall have the burden of proof with regard to the required findings set forth in § 178-17B.
A. 
Any permit issued pursuant to this chapter may be issued with conditions to assure:
(1) 
The preservation and protection of affected wetlands;
(2) 
Compliance with the policy and provisions of this chapter;
(3) 
The provisions of the approval authority's rules and regulations adopted pursuant to this chapter. Such conditions may be attached as the approval authority deems necessary and pursuant to § 178-17.
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, the Conservation Board, the Town Engineer, the Environmental Code Inspector or their designated representatives.
(2) 
The permit shall expire on a specified date.
(3) 
The permit holder shall notify the approval authority and the Environmental Code Inspector of the date on which the work is to begin, at least five days in advance of such date.
(4) 
The approval authority's permit shall be prominently displayed at the project site during the undertaking of the activities authorized by the permittee.
C. 
The approval authority shall set forth, in writing, findings and reasons for all conditions attached to any permit. These findings shall be recorded in the file maintained for each permit application. Conditions may include, but shall not be limited to, the following:
(1) 
Limitations on minimum lot size for any activity;
(2) 
Limitation on the total portion of any lot or the portion of the wetland on the lot that may be graded, filled or otherwise noted;
(3) 
Modification of waste disposal and water supply facilities in conjunction with Westchester County Department of Health;
(4) 
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 limitations of vegetation removal;
(5) 
Dedication of easements to protect wetlands;
(6) 
Erosion control measures;
(7) 
Setbacks for structures, fill, deposit of soil and other activities from the wetland;
(8) 
Modifications in project design to ensure continued water supply to the wetland and circulation of waters; and
(9) 
Replanting of wetland vegetation and construction of new wetland areas to replace damaged or destroyed areas.
D. 
The approval authority shall include in the file it maintains regarding a permit application the following:
(1) 
A copy of any mitigation plan prepared pursuant to § 178-17B;
(2) 
All comments received; and
(3) 
A record of any hearing held pursuant to § 178-12.
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 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 shall be consistent with the purposes of this chapter. The bond shall remain in effect until the approval authority or its designated agent certifies that the worry has been completed in compliance with the terms of the permit and the bond 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, the approval authority may institute an action in the courts upon such bond and prosecute the same to judgment and execution.
B. 
The approval authority shall set forth, in writing, in the file it keeps regarding a permit application its findings and reasons for imposing a bond pursuant to this section.
No permit granted pursuant to this chapter shall remove an applicant's obligation to also comply in all respects with the applicable provisions of any other federal, state or local law or regulation, including but not limited to the acquisition of any other required permit or approval.
A. 
All permits shall expire on completion of the acts specified and, unless otherwise indicated, shall be valid for a period of one year from the date of issue. No original permit granted pursuant to this chapter shall be valid for greater than a period of three years from the date of issue. The approval authority may extend the time in which the acts specified in the permit must be completed if, in its opinion, such intention is warranted by the particular circumstances thereof for not to exceed two additional periods of 90 days each. A request for an extension of an original permit shall be made in writing to the approval authority at least 30 days prior to the expiration date of the original permit or the first ninety-day extension.
B. 
Should a permittee fail to complete the acts specified in the permit prior to the expiration of the second ninety-day extension, the original permit shall become null and void and a new permit must be applied for. The request for a new permit shall follow the same form and procedure as the original application, except that the approval authority shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way.
C. 
If the approval resolution referring to the wetlands permit is reapproved by the approval authority, the wetlands permit is not implicitly reapproved; a separate reapproval for the wetlands permit must be secured on its own. Permits may be transferred to new legal owners of the affected property so long as the conditions and plans as approved remain unchanged. Notice of such transfer of permit must be filed with the Environmental Clerk within 30 days of the transfer.
A. 
Mitigation policy. Mitigation shall be permitted as compensation only for unavoidable wetland losses. For the purpose of this chapter, wetland impacts are necessary and unavoidable only if all of the following criteria are satisfied:
(1) 
There is no feasible on-site alternative to the proposed activity, including reduction in density, change in use, revision of road and lot layout which accomplish the applicant's objectives;
(2) 
There is no feasible alternative to the proposed activity on another site that is not a wetland or wetland/watercourse buffer; and
(3) 
The proposed activity is compatible with the public health and welfare and Town declared public policy.
B. 
Mitigation is required for disturbance in a protected woodland which is within a wetland and/or a wetland buffer and therefore requiring a permit under this chapter, however mitigation measures as detailed in the Preservation of Yorktown's Trees and Woodlands § 270-10 may be used as mitigation in combination with required mitigation under Chapter 178 as appropriate to further the intents of Chapter 270. This in no way implies additional mitigation above that required in Chapter 178.
[Added 7-7-2020 by L.L. No. 8-2020[1]]
[1]
Editor's Note: This local law also renumbered former Subsections B and C as Subsections C and D, respectively.
C. 
Mitigation plan.
(1) 
Upon a determination pursuant to Subsection A above that losses of wetland or wetland/watercourse buffers are necessary and unavoidable, the Town Board and Planning Board shall and the Town Engineer may, as approval authorities, require the preparation of a mitigation plan which shall specify mitigation measures that replace, to the greatest extent possible, the functions of the original wetland and/or buffer in terms of type, ecological benefits, geographic location and setting and size.
[Amended 7-7-2020 by L.L. No. 8-2020]
(2) 
For the purposes of mitigation, on-site mitigation shall be the preferred approach; off-site mitigation shall be permitted only in cases where an on-site alternative is not possible.
(3) 
Adequate mitigation for intrusion into wetlands shall provide a no overall net loss of wetlands in terms of ecological characteristics and function, geographic location and setting and size. A greater than 1:1 replacement may be necessary in areas where there is a strong possibility of failure. Adequate mitigation for intrusion into wetland buffer areas shall preserve the ecological characteristics and function of the associated wetland.
(4) 
Where off-site mitigation is proposed, the same should be within the drainage basin affected by the development. In this regard, contribution to a Town adopted drainage basin and/or wetland improvement plan may be considered. A town-adopted drainage basin and/or wetland improvement plan shall be any plan as established upon resolution of the Town Board.
D. 
Mitigation plan requirements.
(1) 
When required under this chapter, mitigation plans shall be developed so as to fully compensate for the loss of wetlands or wetland/watercourse buffers and shall include the following baseline data:
(a) 
Hydrologic data.
[1] 
Small projects (losses of two acres): land use history, macrotopography, general surficial geology and streamflow measurements, groundwater levels and groundwater quality.
[2] 
Moderate projects (losses of two to 10 acres): data required for small projects, plus microtopography, bedrock geology, surficial geology, streamlflow velocity measurements, if appropriate, soil pore water storage (organic soils) and direct precipitation measurements.
[3] 
Large projects (losses of 10 acres): data for small and moderate projects, plus water balance analysis (one-year study), groundwater storage, groundwater flow rates, soil pore water level and flow (organic soils).
(b) 
Soils.
[1] 
Small projects: soil profile descriptions, general soil survey data, bulk density, porosity, hydraulic conductivity, pH, conductivity, cation exchange capacity, redox potential, total phosphorous, total nitrogen, nitrate nitrogen and organic carbon.
[2] 
Moderate projects: data required for small projects plus fiber content (organic soils), phosphorous retention, pore water analysis (seasonally), alkalinity, exchangeable acidity, seedbank capacity and soil organisms.
[3] 
Large projects: data required for small and moderate projects plus clay mineralogy, microbial assessment (seasonally), heavy metals content, pesticides residues, gas/toxin analysis (seasonally), peat features and soil temperature regime.
(c) 
Vegetation and wildlife.
[1] 
Small projects: area wetland extent and qualitative measurement of percent plant cover, plant species list, vegetation cover-type, relative stem density, slope, microtopography, plant vigor, surface water connections, habitat structure, vegetation/open water ratio and surrounding terrestrial cover type.
[2] 
Moderate projects: data for small projects plus comprehensive animal species list, potential phosphorous uptake and potential nitrogen uptake.
[3] 
Large projects: data for small and moderate projects plus quantitative measurement of stem density, evapotranspiration data and net primary productivity.
(2) 
The applicant shall monitor or shall cause to be monitored acts specified on the permit to determine whether the elements of the mitigation plan and permit conditions have been met and whether the wetland acreage created replaces the wetland acreage lost. The applicant shall submit written reports to the approval authority and Environmental Code Inspector at a frequency to be determined by the approval authority, addressing the progress of the work under the wetlands permit and the mitigation plan. When necessary, the approval authority may require the applicant to contract with a wetland consultant to assess the applicant's work and monitoring reports conducted under the permit and mitigation plan. The applicant shall either hire consultants from the list available in the Town Clerk's office or other consultants approved by the Conservation Board. The requirements for monitoring shall be specified in the mitigation plan and shall include, but are not limited to, the following:
(a) 
The time period over which compliance monitoring shall occur.
(b) 
Field measurements to verify the size and location of the impacted wetland area and the restored/replacement wetland area.
(c) 
The date of completion of the restoration/replacement.
(3) 
Any mitigation plan, and all contents thereof, prepared pursuant to this section and accepted by the approval authority shall become part of the permit for the application.
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 approval authority pursuant to this chapter shall be liable to the municipality for civil damages caused by much violation for every such violation. Each consecutive day of the violation will be considered a separate offense. much civil damages may be recovered in an action brought by the municipality at the request and in the name of the approval authority in any court of competent jurisdiction.
(2) 
Restitution. The Town shall have the authority, following a hearing before the Town Board and on notice to the violator to direct the violator to restore the affected wetland to its condition prior to violation, insofar as that is possible, within a reasonable time and under the supervision of the approval authority or its designate. Further, the approval authority shall be able to require an adequate bond in a form and amount approved by the approval authority to ensure the restitution of the affected wetlands. Any such order of the approval authority shall be enforceable in an action brought in any court of competent jurisdiction. Any order issued by the approval authority pursuant to this subsection shall be reviewable in a proceeding pursuant to Article 78 of the State Civil Practice Law and Rules.
(3) 
Stop-work order.
[Amended 4-2-2002 by L.L. No. 1-2002]
(a) 
The Town Engineer, Building Inspector or Environmental Code Inspector may post a stop-work order for the entire project or any specified part thereof if any of the following conditions exist:
[1] 
Any land-disturbance activity regulated under Chapters 178 is being undertaken without a permit.
[2] 
The wetlands permit is not being fully implemented.
[3] 
Any of the conditions of the permit are not being met.
(b) 
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.
(c) 
For purposes of this section, a stop-work order is validly posted by posting a copy of the stop-work order on the site of the land-disturbing activity in reasonable proximity to a location where the land-disturbing activity is taking place. Additionally, a copy of the order, in the case of work for which there is a permit, shall be mailed by first class mail, postage prepaid, to the address listed by the permittee on the permit. In the case of work for which there is no permit, a copy of the order shall be mailed to the person listed as owner of the property by the Town Assessor on the tax roll or, if none, to the taxpayer shown by the records of the Town Assessor.
(d) 
If the permittee does not cease the activity or comply with the wetlands permit or permit conditions within one day, the issuing authority may revoke the permit. No wetlands permit shall be permanently suspended or revoked until a public hearing is held by the Town Board.
[1] 
Written notice of such hearing shall be served on the permittee, either personally or by registered mail, and shall state:
[a] 
Grounds for complaint or reasons for suspension or revocation, in clear and concise language; and
[b] 
The time and place of the hearing to be held.
[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 Town Board. At such hearing, the permittee shall be given an opportunity to be heard and may call witnesses and present evidence on his behalf. At the conclusion of the hearing, the Town Board shall determine whether the permit shall be reinstated, suspended or revoked.
(e) 
If the owner or land user, where no permit has been issued, does not cease the land-disturbance activity, the issuing authority may request the Town Attorney to obtain injunctive relief.
(f) 
The issuing authority may retract the revocation.
(g) 
Ten days after posting a stop-work order, the issuing authority may issue a notice of intent to the permittee, owner, or land user of the issuing authority's intent to perform work necessary to comply with Chapter 178. The issuing authority may go on the land and commence work after 14 days from issuing the notice of intent. The costs incurred by the issuing authority to perform this work shall be paid by the owner or permittee out of the posted wetlands bond, to the extent that the amount is covered thereby, with the remainder being directly due and owing by the owner or permittee. In the event no permit was issued or no bond was posted, the cost, plus interest, at the rate authorized by the issuing authority, plus a reasonable administrative fee, shall be billed to the owner. If, in any event, the amount due is not paid, the Receiver of Taxes shall enter the amount due on the tax roll and collect as a special assessment against the property using the procedures for collecting the assessment, providing for the notice of assessment, hearing thereon, and appeal as provided.
(h) 
Compliance with the provisions of Chapter 178 may also be enforced by injunction.
(4) 
The usual wetland and excavation permit application fees shall be doubled in the case of any application sought as a result of or in connection with the applicant having been issued a stop-work order or a remedy order prior to applying for a permit.
[Added 12-21-2004 by L.L. No. 24-2004]
B. 
Criminal sanctions. Any person convicted of having violated or disobeyed any provision of this chapter, any order of the approval authority or any condition duly imposed by the approval authority 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 $5,000, nor more than $25,000, and/or a term of imprisonment of not more than 15 days. Each consecutive day of the violation may be considered a separate offense. The term "person" as used herein, shall mean a natural person or a corporate person.
[Amended 5-4-2004 by L.L. No. 13-2004]
C. 
Issuance of appearance tickets. The purpose of this section is to authorize the Environmental Inspector of the Town of Yorktown to issue and serve appearance tickets in connection with the violation of local laws, ordinances or rules and regulations of the Town of Yorktown which he is authorized or required to enforce.
[Added 4-2-2002 by L.L. No. 2-2002]
The municipality 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.
Duly filed notice, in writing, that the state or any agency or political subdivision of the state is in the process of acquiring any wetland by negotiation or condemnation authorizes but does not require denial of any permit, but only if both the affected landowner and the local government have been so notified.
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 bar to the permit lapses. If its negotiations with the applicant are broken off, the state or any agency or political subdivision must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law, or this ban to the permit lapses.
A. 
Appeal and review.
(1) 
Any decision or order of the approval authority or any officer or employee thereof made pursuant to or within the scope of this chapter may be reviewed by the Town Board at the request of any interested party, provided that such review is commenced by the filing of a notice of review with the Town Board within 30 days after service of such order or filing of such decision with the Town Clerk.
(2) 
Any party to any proceeding before the approval authority may appeal to the Town Board from any order or decision of the approval authority or any officer or employee thereof issued or made pursuant to or within the scope of this chapter, provided that such appeal is commenced by the filing of a notice of appeal with the Town Board within 30 days after service of such order or filing of such decision with the Environmental Clerk.
B. 
Judicial review. Any final determination, decision or order of the approval authority may be judicially reviewed pursuant to Article 70 of the Civil Practice Law and Rules in the Supreme Court for Westchester County. The institution of an immediate judicial proceeding to review all original determinations on the permit precludes an appeal to the Freshwater Wetlands Appeals Board.
A. 
This chapter shall apply to any and all activities, projects, developments and/or land uses that, as of the date of the adoption of this chapter, have not received final approval or either a negative declaration or a positive findings statement pursuant to the Environmental Conservation Law (6 NYCRR 617).
B. 
For all activities, projects, developments or land uses which have received a final approval without having undergone the procedures pursuant to Environmental Conservation Law Article 8 (6 NYCRR 617) shall be deemed to have received a negative declaration or positive findings statement for the purposes of this chapter.
In order to carry out the purposes and provisions of this chapter and in addition to the powers specified elsewhere in this chapter, the following general provision shall apply:
A. 
Consent. The applicant consents to the entry onto his property by any Town agent, including but not limited to members of the Town Board, Planning Board, Conservation Board, the Town Engineer or Environmental Code Inspector, or their agents, to view and review the property in pursuance of this chapter.
B. 
Conflicts. Whenever this chapter is inconsistent with any other law of the Town of Yorktown, whichever imposes the more stringent restriction shall prevail.