[HISTORY: Adopted by the Town Board of the
Town of Yorktown 3-19-1991 by L.L. No. 16-1991. Amendments noted where
applicable.]
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.
ADMINISTRATIVE PERMIT
AGRICULTURE
APPLICANT
APPROVAL AUTHORITY
(1)
(a)
(b)
(c)
(d)
(2)
(3)
BOUNDARY OF A WETLAND
BOUNDARY OF A WETLAND
CONSERVATION BOARD
DAMS AND WATER CONTROL MEASURE
DATE OF RECEIPT OF APPLICATION BY APPROVAL AUTHORITY
DEPOSIT
DISCHARGE
DOMINANT(S) OR DOMINANCE
DRAIN
DREDGE
ECOLOGIST/BOTANIST
EMERGENCY
EXCAVATE
ENVIRONMENTAL CLERK
ENVIRONMENTAL CODE INSPECTOR
FACULTATIVE SPECIES
FILL
FLAGGING
FRESHWATER WETLANDS MAP
GRADING
GROWING SEASON
HIGHWAY SUPERINTENDENT
HYDRIC SOIL
HYDROPHYTIC VEGETATION
MATERIAL
MICROSITE
MINERAL SOIL
MITIGATION PLAN
MUNICIPALITY
MUNSELL SOIL COLOR CHART
OBLIGATE UPLAND SPECIES
OBLIGATE WETLAND SPECIES
ORGANIC SOILS/HISTOSOLS
PERMIT OR WETLANDS PERMIT
PERSON
PLANNING BOARD
PROJECT
PROTECTED WOODLAND
REMOVE
SOIL SCIENTIST
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
STRUCTURE
TOWN
TOWN BOARD
TOWN CLERK
TOWN ENGINEER
WATERBODY
WATERCOURSE
WATER SUPERINTENDENT
WETLAND/FRESHWATER WETLAND
(1)
(2)
(3)
WETLAND PLANTS OF THE STATE OF NEW YORK 1986
WETLAND HYDROLOGY
WETLAND/WATERCOURSE BUFFER
(1)
(2)
(3)
WOODLAND
WOODLAND DISTURBANCE
YORKTOWN TOPOGRAPHY AND SURFACE HYDROLOGY MAP
As used this chapter, the following terms shall have
the meanings indicated:
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.
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]
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.
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]
The Planning Board of the Town of Yorktown for
permit applications relating to regulated activities that:
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;
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
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.
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.
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.
The Town Board of the Town of Yorktown for all
permit applications not covered by Subsections B(1) or (2) above.
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]
The outer limit of the soils, hydrology and/or vegetation
as defined under "wetland/freshwater wetland."
The duly appointed Conservation Board of the Town of Yorktown
as created pursuant to § 239 of the General Municipal Law.
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.
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.
To fill grade, discharge, emit, dump or place any material
or the act thereof.
The emission of any water, substance or material into a wetland,
watercourse or their buffers, whether or not such substance causes
pollution.
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.
To deplete or empty of water by drawing off by degrees in
increments.
To excavate or remove sediment, soil, mud, sand, shells,
gravel or other aggregate.
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.
An event which presents an immediate threat to life, health,
property or natural resources.
[Added 5-4-2004 by L.L. No. 13-2004]
To dig out and remove any material from a wetland or wetland
buffer.
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.
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.
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.
See "deposit."
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.
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.
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing and other modification
of the natural land surface.
The portion of the year when soil temperatures are above
biologic zero (5º C.); the growing season for Westchester County
is March through October.
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]
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."
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."
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.
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.
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.
The Town of Yorktown.
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.
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.
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.
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.
That form of written municipal approval required by this
chapter for the conduct of a regulated activity within a wetland or
wetland buffer.
Any individual, firm, company, association, society, corporation
or group
[Amended 5-4-2004 by L.L. No. 13-2004]
The duly appointed Planning Board of the Town of Yorktown
as created pursuant to § 271 of the Town Law.
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.
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]
To dig, dredge, suck, bulldoze, dragline, blast or otherwise
excavate or grade, or the act thereof.
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.
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.
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.
The Town of Yorktown.
The duly elected Town Board of the Town of Yorktown.
The duly elected Town Clerk of the Town of Yorktown.
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]
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.
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.
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]
Any area which meets one or more of the following criteria
Watercourses and waterbodies.
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.
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.
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).
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for a sufficient duration to support
hydrophytic vegetation.
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:
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]
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.
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.
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]
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]
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.
(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.
(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.
(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.
(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.
(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.
[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.
(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:
(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.
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:
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.
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.
(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:
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]]
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]
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
(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.
A.
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.
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]]
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:
(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:
(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.
[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.
(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.
