City of Rye, NY Chapter 195 Wetlands and Watercourses

[HISTORY: Adopted by the Council of the City of Rye 12-18-1991 by L.L. No. 28-1991. Amendments noted where applicable.]

§ 195-1 Findings; intent; powers of Planning Commission.

A. Findings of fact.

(1) In their natural state, wetlands and watercourses serve multiple functions, including:

(a) 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.

(b) Controlling flooding and stormwater runoff by storing or regulating natural flows.

(c) Providing nesting, migratory and wintering habitats for diverse wildlife species, including many on the New York State and federal endangered species lists.

(d) Supporting vegetative associations specifically adapted for survival in low-oxygen environments and/or brackish water or saltwater.

(e) Providing areas of unusually high plant productivity which support significant wildlife diversity and abundance.

(f) Providing breeding and spawning grounds, nursery habitats and food for various species of fish.

(g) Serving as nutrient traps for nitrogen and phosphorous and filters for surface water pollutants.

(h) 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.

(i) Providing open space and visual relief from intense development in urbanized and growing areas and recreational and aesthetic enjoyment for area residents.

(j) Serving as outdoor laboratories and living classrooms for the study and appreciation of natural history, ecology and biology.

(2) Considerable acreage of these important natural resources has been lost or impaired by draining, dredging, filling, excavating, building, polluting and other acts inconsistent with the natural uses of such areas. Remaining wetlands are in jeopardy of being lost, despoiled or impaired by such acts contrary to the public safety and welfare.

(3) It is therefore the policy of the City of Rye to protect its citizens, including generations yet unborn, by preventing the despoilation and destruction of wetlands and watercourses while taking into account varying ecological, economic, recreational and aesthetic values. Activities that may damage wetlands or watercourses should be located on upland sites in such a manner as not to degrade these systems.

B. Intent

(1) It is the intent of the City of Rye that activities in wetlands, watercourses and wetland/watercourse buffers conform with all applicable building codes, sediment control regulations and other regulations and that such activities not threaten public safety, the natural environment or cause nuisances by:

(a) Impeding stormwater and flood flows, reducing stormwater and flood storage areas or destroying storm barriers, thereby resulting in increased flood heights, frequencies or velocities on other lands;

(b) Increasing water pollution through location of domestic waste disposal systems in wet soils; inappropriate siting of stormwater control facilities; unauthorized application of fertilizers, pesticides, herbicides and algaecides; disposal of solid wastes at inappropriate sites; creation of unstabilized fills; or the destruction of wetland soils and vegetation serving pollution and sediment control functions;

(c) Increasing erosion;

(d) Decreasing breeding, nesting and feeding areas for many species of waterfowl and shorebirds, including those rare and endangered;

(e) Interfering with the exchange of nutrients needed by fish and other forms of wildlife.

(f) Decreasing the habitat for fish and other forms of wildlife.

(g) Adversely altering the recharge or discharge functions of wetlands, thereby impacting groundwater or surface water supplies;

(h) Significantly altering the wetland hydroperiod and thereby causing either short or long-term changes in vegetational composition, soils characteristics, nutrient cycling or water chemistry;

(i) Destroying sites needed for education and scientific research, such as outdoor biophysical laboratories, living classrooms and training areas;

(j) Interfering with public rights in navigable waters and the recreation opportunities provided by wetlands for fishing, boating, hiking, bird watching, photography, camping and other passive uses;

(k) Destroying or damaging aesthetic and property values, including significant public viewsheds; or

(l) Allowing cumulative loss of wetlands or buffers through incremental encroachment on wetland or buffer areas.

(2) The Planning Commission shall have the power to promulgate and from time to time amend and repeal rules and regulations it deems necessary to effectuate the purposes of this chapter, after a public hearing and subject to approval by the City Council. Copies of the rules and regulations shall be filed with the City Clerk, the City Conservation Commission/Advisory Council, the City Naturalist, the City Planner and the City Building Inspector.

§ 195-2 Applicability to existing nonconforming uses.

A. The provisions of this chapter shall not apply to any land use, improvement, development or activity legally existing on the effective date of this chapter, including grounds maintenance and the application of pesticides and fertilizers, subject to the following limitations:

(1) The land use, improvement, development or activity shall not be expanded, changed, enlarged or altered in such a way that increases its nonconformity without a permit.

(2) If destroyed, damaged or removed by any cause, water-dependent and non-water-dependent land uses, improvements, developments or activities legally existing on the effective date of this chapter may be replaced, restored or reestablished in the same location without a permit, provided that the replaced, restored or reestablished uses, buildings, structures, features and other development will not be closer to any wetland or watercourse or result in a greater intensity of activity than before they were destroyed or damaged, and subject to the following additional limitations:

(a) In a Membership Club District, as defined in Chapter 197, Zoning, of this Code, club uses, buildings, structures, features and other development will not be closer to a property line or larger than before they were destroyed or damaged.

(b) Water-dependent uses and related structures not located in a Membership Club District, as defined in Chapter 197, Zoning, of this Code, may be replaced, restored or reestablished only if permitted by the Rye City Board of Appeals pursuant to § 197-5A(6) of this Code.

(c) Non-water-dependent land uses, improvements, development or activity may be replaced, restored or reestablished, provided that there will be no greater coverage of land than before they were damaged or destroyed.

B. This chapter shall not apply to any land use, improvement, development or activity granted a final approval and not completed prior to the effective date of this chapter, subject to the following limitations:

(1) The land use, improvement, development or activity has substantially commenced within one year of the effective date of this chapter.

(2) The land use, improvement, development or activity shall not be expanded, changed, enlarged or altered in such a way that increases its nonconformity without a permit.

(3) For the purposes of this chapter, such land use, improvement, development or activity, upon completion in accordance with its final approval, shall thereafter be considered as existing on the effective date of this chapter, and if destroyed, damaged or removed by any cause, may not be reestablished, restored or used except in accordance with the requirements of § 195-2A.

C. The provisions of this chapter shall not apply to dams, floodgates and sluices as were in existence on the effective date of this chapter or are hereafter approved pursuant to the procedures provided for in this chapter.

D. The provisions of this chapter shall not apply to cemetery grave plots in use or designated for future use as cemetery grave plots as of the effective date of this chapter.

E. The provisions of this chapter shall not apply to the repair or maintenance of existing utility facilities in existence on the effective date of this chapter or hereafter approved pursuant to the procedures provided for in this chapter.

§ 195-3 Definitions.

Words or phrases used in this chapter shall be interpreted as defined below, and where ambiguity exists words or phrases shall be interpreted so as to give this chapter its most reasonable application in carrying out the regulatory goals stated in § 195-1:

ADJACENT AREA

See "wetland/watercourse buffer."

AGRICULTURAL ACTIVITY

The activity of the landowner in making reasonable use of water resources for agricultural purposes, harvesting the natural products of wetlands, excluding peat mining and timber harvesting, and selective cutting of trees. "Agricultural activity" does not mean clear-cutting of trees; filling or deposition of dredged soil or draining for growing agricultural products or for other purposes.

APPLICANT

A person or entity who files an application for a permit under this chapter and who is either the owner of the land on which the proposed regulated activity would be located, a contract vendee, a lessee of the land, the person who would actually control and direct the proposed activity or the authorized agent of such person.

AQUACULTURE

Cultivating and harvesting products, including fish and vegetation, that are produced naturally in wetlands and installing cribs, racks and other in-water structures for cultivating these products, but does not include filling, dredging, peat mining, clear-cutting or the construction of any buildings or any water-regulating structures such as dams.

BOUNDARY OF A WETLAND

The approximate outer limit of the soils and/or vegetation as defined under "wetland" and shown on the City of Rye Wetlands and Watercourses Map.

CITY BUILDING INSPECTOR

The Building Inspector for the City of Rye or such representative as designated by the City Manager.

CITY NATURALIST

The Naturalist for the City of Rye or such qualified representative as designated by the City Manager.

CITY PLANNER

The City Planner for the City of Rye or such representative as designated by the City Manager.

CLEAR-CUTTING

Any cutting of more than 30% of trees four inches or more in diameter at approximately 4 1/2 feet above the ground over any ten-year cutting cycle as determined on the basis of wetland area per lot or group of lots under single ownership, including any cutting of trees which results in the total removal of one or more species, whether or not the cut meets or exceeds the thirty-percent threshold.

COMMISSIONER

The Commissioner of the Department of Environmental Conservation of the State of New York.

DAMS AND WATER-CONTROL MEASURES

Barriers used or intended to or which, even though not so intended in fact do, obstruct the flow of water or raise, lower or maintain the level of water.

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

That portion of the year when soil temperatures are above biologic zero (5º C.); the growing season for the City of Rye is March through October.

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."

HYDROPERIOD

The seasonal pattern of the water level of a wetland, which defines the rise and fall of the wetland surface and subsurface water.

HYDROPHYTIC VEGETATION

Macrophytic plant life growing in water or on soils that are at least periodically anaerobic as a result of excessive water content, and as further defined under "wetland."

MACROPHYTIC

Referring to any plant species that can be readily observed with the naked eye.

MATERIAL

Liquid, solid or gaseous substances, including but not limited to soil, silt, gravel, rock, sand, 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.

OFFICIAL SUBMITTAL DATE

The date on which an application is officially submitted to the Planning Commission is the date of the first regular meeting of the Planning Commission following the filing of the application and supporting plans pursuant to the provisions of this chapter.

PERMIT

That form of written approval required by this chapter for the conduct of a regulated activity within a wetland, watercourse or wetland/watercourse buffer.

PERSON

See "applicant."

POLLUTION

Any harmful thermal effect or the contamination or rendering unclean or impure of any wetland or waters by reason of erosion or by any waste or other materials discharged or deposited therein.

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.

REMOVE

To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or grade or the act thereof.

RENDERING UNCLEAN OR IMPURE

Any alteration of the physical, chemical or biological properties of any wetland or waters, including but not limited to change in odor, color, turbidity or taste.

SELECTIVE CUTTING

Any cutting of trees within the boundaries of a wetland or wetland/watercourse buffer that is not "clear-cutting" as defined in this section.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)

The law pursuant to Article 8 of the New York State Environmental Conservation Law providing for environmental quality review of actions which may have a significant adverse 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.

SUBDIVISION

See Chapter 170, Subdivision of Land, of the Code of the City of Rye.

WATERCOURSE

Any natural or artificial, permanent or intermittent, public or private water body or water segment, such as ponds, lakes, reservoirs, brooks and waterways, that is contained within, flows through or borders on the City of Rye.

WETLAND

Any area which meets one or more of the following criteria:

A. Lands and waters of the state that meet the definition provided in § 24-0107, Subdivision 1, of the New York State Freshwater Wetlands Act (see Article 24 and Title 23 of Article 71 of the Environmental Conservation Law) and have an area of at least 12.4 acres or, if smaller, have unusual local importance as determined by the Commissioner pursuant to § 24-0301, Subdivision 1, of the Act. The approximate boundaries of such lands and waters are indicated on the official freshwater wetlands map promulgated by the Commissioner pursuant to § 24-0301, Subdivision 5, of the Act or such a map that has been amended or adjusted pursuant to § 24-0301, Subdivision 6, of said Act.

B. Lands and waters of the state that meet the definition provided in § 25-0103, Subdivision 1, of the New York State Tidal Wetlands Act (see Article 25 of the Environmental Conservation Law). The approximate boundaries of such lands and waters are indicated on the official tidal wetlands inventory promulgated by the Commissioner pursuant to § 25-0201 of the Act or such an inventory that has been amended or adjusted pursuant to § 25-0201, Subdivision 6, of said Act.

C. All other areas that comprise hydric soils or are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of hydrophytic vegetation, all as defined by the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989), which manual shall be available for inspection in the City Naturalist's office and in the City Planner'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.

WETLANDS AND WATERCOURSES MAP

The City of Rye Wetlands and Watercourses Map, adopted by the Council of the City of Rye pursuant to this chapter or such map as has been amended or adjusted and on which are indicated the approximate boundaries of the known wetlands, watercourses and wetland/watercourse buffers defined pursuant to this chapter. The map shall be available for inspection in the City Naturalist's office and in the City Planner's office. Areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers defined and regulated by this chapter. General Note: The City of Rye Wetlands and Watercourses Map is intended to provide general guidance in locating and determining those areas which constitute wetlands and watercourses and their related buffers, as defined in this chapter. The boundaries of wetlands and watercourses and related buffers shall be delineated by the Planning Commission or its consultant in the field.

WETLAND/WATERCOURSE BUFFER

A specific area surrounding a wetland/watercourse extending 100 feet horizontally away from and paralleling the wetland/ watercourse boundary.

§ 195-4 Permit requirements; regulated activities; determining wetland boundaries.

No regulated activity shall be conducted in a wetland, watercourse or wetland/watercourse buffer without a written permit from the Planning Commission and full compliance with the terms of this chapter and other applicable regulations. All activities that are not permitted as of right or by permit shall be prohibited. The City Planner, City Engineer and City Building Inspector shall, in the course of reviewing any application before them, advise the applicant of the existence of this chapter and refer information regarding such applications to the City Naturalist.

A. Wetlands and watercourses map — purpose and applicability.

(1) Purpose. Wetlands, watercourses and wetland/watercourse buffers are defined in § 195-3 of this chapter and are generally indicated on the Rye City Wetlands and Watercourses Map. The City of Rye Wetlands and Watercourses Map is intended to provide general guidance in locating and determining those areas which constitute wetlands and watercourses, their boundaries and their related buffers. Areas indicated as being wetlands, watercourses or wetland/watercourse buffers may not actually be a wetland, watercourse or wetland/ watercourse buffer and areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers. The boundaries of wetlands and watercourses and related buffers shall be delineated by the Planning Commission or their consultant in the field.

(2) Applicability to activities requiring other City approvals. Areas indicated as being wetlands, watercourses or wetland/watercourse buffers may not actually be a wetland, watercourse or wetland/watercourse buffer and areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers. Potential applicants for permits required by this chapter and other City approvals shall attach a copy of the determination from the City Naturalist to their application. The granting of an approval by a City agency or official pursuant to any other chapter of the Code of the City of Rye or the granting of an approval by any state or federal agency shall in no way excuse or exempt any person from the requirements of this chapter even if the property is not shown as being a wetland, watercourse or wetland/watercourse buffer on the map. In the case of City official and agency approvals, such officials and agencies shall, upon notification by the City Naturalist that an activity also requires a permit pursuant to this chapter, take such action as is necessary to stop any part of the work being undertaken that is subject to regulation pursuant to this chapter until a permit has been granted.

(3) Applicability to activities not requiring other City approvals. Areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers subject to this chapter, but a permit under this chapter can only be required upon a finding by the Planning Commission that the area is a wetland, watercourse or wetland/watercourse buffer. Such finding shall be in writing and shall also authorize the City Naturalist to issue a stop-work order if the Planning Commission finds that the activity has not been substantially completed. Said finding must be approved by an affirmative vote of at least five members of the Planning Commission, and thereafter the Planning Commission shall delineate the boundary of the wetland, watercourse and wetland/watercourse buffer at the cost of the City and recommend an amendment to the map for the purpose of future regulation. In the event that the Planning Commission makes a finding that a wetland, watercourse or wetland/watercourse buffer does exist but does not authorize the City Naturalist to issue a stop-work order, said activity shall be deemed to have been permitted as if a permit had been issued. However, the Planning Commission, City Naturalist and their agents or employees may thereafter, with the owner's permission, enter upon said land to delineate the boundary and seek an appropriate amendment to the map. If the owner of the property bars such entry, the City Naturalist, Planning Commission and their agents or employees are empowered to apply to the City Court for an administrative search warrant permitting entry onto said land to delineate the boundary and seek an appropriate amendment to the map.

B. City Naturalist determination and appeals.

[Amended 5-6-1992 by L.L. No. 5-1992]

(1) City Naturalist's determination. The City Naturalist, in consultation with the Conservation Commission/Advisory Council and the City Planner, shall, within five business days of receiving a written request for a determination, determine if the proposed activity is in an area that may be subject to the requirements of this chapter. The written request for such determination must be accompanied by a payment of a fee to the City of Rye. Such fee shall be set annually by resolution of the City Council. The City Naturalist shall make one of two possible determinations: that the area may be subject to the requirements of this chapter or that the area is not subject to the requirements of this chapter. In performing this evaluation, the City Naturalist should consult the Rye City Wetlands and Watercourses Map. In addition, the City Naturalist may also consult the Westchester County Soil Survey Maps, prepared by the United States Department of Agriculture Soil Conservation Service, revised in 1986 and as further revised from time to time, which show the approximate location of hydric soils that indicate the potential presence of a wetland as defined in this chapter, and may also consult the National List of Plant Species That Occur in Wetlands: Northeast (Region 1), the list of upland wetland plant species developed by the United States Department of the Interior Fish and Wildlife Service in cooperation with the National and Regional Interagency Review Panels, as amended and updated from time to time. The maps and list shall be available for inspection in the City Naturalist's office and in the City Planner's office.

[Amended 12-17-1997 by L.L. No. 19-1997]

(2) Appeal of City Naturalist's determination that a property is not subject to the requirements of this chapter. In the case of a subdivision or site development plan application, a resident or property owner in the City of Rye may petition the Planning Commission to reverse a determination of the City Naturalist that a property is not subject to the requirements of this chapter. The petitioner shall have the burden of demonstrating that the City Naturalist's determination should be reversed. Such petition must be filed within 15 business days of the City Naturalist's determination. Said petition shall be in the form set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter.

(3) Appeal of City Naturalist's determination that a property may be subject to the requirements of this chapter. If the City Naturalist determines that an area may be subject to the requirements of this chapter, the property owner may petition the Planning Commission to determine that the area is not subject to the requirements of this chapter. Said petition shall be in the form of the permit application as set forth in § 195-5B, but the application need only provide the data required under § 195-5B(2)(b) for a waiver. If additional information is needed by the Planning Commission to decide the petition, the petitioner shall provide said additional information. The petitioner shall have the burden of demonstrating that the City Naturalist's determination was incorrect. Such petition must be filed within 15 business days of the City Naturalist's determination. If the Planning Commission determines that the decision of the City Naturalist was correct, the property owner may complete the application by paying the permit application fee and submitting all other required permit information or withdraw the application.

C. Regulated activities. Except as specified in § 195-4D, the following are regulated activities when within a wetland, watercourse or wetland/watercourse buffer and may be granted a permit upon written application to the Planning Commission:

(1) Placement or 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 waste 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.

(8) Construction of dams, docks or other water-control devices, pilings or bridges, whether or not they change the natural drainage characteristics.

(9) Installation of any pipes or wells.

(10) Clear-cutting any area of trees.

(11) Removal or cutting of any vegetation, except selective cutting as permitted in § 195-4D(2).

(12) Deposition or introduction of organic or inorganic chemicals, including pesticides and fertilizers.

(13) Any agricultural activity which involves the draining or excavation of a wetland, except as permitted in § 195-4D(7).

(14) Any other activity that may impair the natural function(s) of a wetland as described in § 195-1 of this chapter.

D. Uses as of right — no permit required. The following uses shall be allowed as of right within a wetland, watercourse or wetland/watercourse buffer without a permit to the extent that they are not prohibited by any other chapter and to the extent that they do not constitute a pollution or erosion hazard or interfere with proper drainage:

(1) Normal ground maintenance, including mowing, trimming of vegetation and removal of dead or diseased vegetation.

(2) Selective cutting as defined in § 195-3.

(3) Repair of existing structures, including interior renovations, walkways, walls and docks.

(4) Decorative landscaping and planting in wetland/watercourse buffers, excluding those activities regulated in § 195-4C(11) and (12).

(5) Public health activities, orders and regulations of the Westchester County Department of Health and/or the New York State Department of Health for emergencies only.

(6) Deposition or removal of natural products of wetlands in the process of recreational or commercial fishing, shellfishing, aquaculture, hunting or trapping, but excluding excavation and removal of peat or timber, except as provided in § 195-4C(2).

(7) Agricultural activities as defined in § 195-3.

(8) Normal beach maintenance, including restoration of an eroded shoreline to its original state.

E. Rules for determining boundaries. The Planning Commission shall determine the boundaries of a wetland or watercourse. The boundaries of a wetland ordinarily shall be determined by field investigation. In so doing the Planning Commission may consult and/or may require the applicant to consult with qualified biologists, hydrologists, soil scientists, ecologists/botanists/zoologists or other experts as necessary to make this determination. After the boundary has been determined by the Planning Commission, it may require, at the expense of the applicant, a survey to be drawn up by a licensed land surveyor.

§ 195-5 Permit standards and procedures.

A. Procedures for permits.

(1) No regulated activity shall be conducted without issuance of a written permit from the Planning Commission.

(2) 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. A one-year extension of an original permit may be granted upon written request to the Planning Commission by the original permit holder or his/her legal agent at least 90 days prior to the expiration date of the original permit. The Planning Commission may require new hearings if, in its judgment, the original scope of the permit is altered or extended by the renewal or if the applicant has failed to abide by the terms of the original permit in any way. The request for renewal of a permit shall follow the same form and procedure as the original application, except that the Planning Commission shall have the option of not holding a hearing if the original scope of the permit is not altered or extended in any significant way.

B. Permit applications.

(1) Application for a permit shall be made to the Planning Commission on forms furnished by the City Planner pursuant to the Planning Commission's rules and regulations adopted pursuant to this chapter.

(2) An application for a permit shall not be deemed complete if it does not include all of the information required by the Planning Commission's rules and regulations adopted pursuant to this chapter and the following:

(a) The application fee.

(b) Complete plans and estimates as set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter. In the case of applications for projects where the total amount of disturbed area is less than one-fourth acre or projects whose total cost does not exceed $10,000 or projects which propose encroachment into the wetland/watercourse buffer only, the Planning Commission may waive the requirements for complete plans and estimates set forth in its rules and regulations adopted pursuant to this chapter, provided that a plan clearly showing the extent and details of the project has been submitted with the application.

(c) Evidence that the applicant has complied fully with the procedures of the State Environmental Quality Review Act (Article 8 of the New York State Environmental Conservation Law) and has submitted a full environmental assessment form, except that a short environmental assessment form may be submitted at the discretion of the Planning Commission.

(3) The Planning Commission may require additional information as needed, such as the study of flood, erosion or other hazards at the site and the effect of any protective measures that might be taken to reduce such hazards and other information deemed necessary to evaluate the proposed use in terms of the goals and standards of this chapter.

(4) By filing an application, the applicant thereby consents to the entry onto his land by the City Naturalist, City Planner or other agents designated by the Planning Commission for the purpose of undertaking any investigation, examination, survey or other activity necessary for the purposes of this chapter. If the owner of the property bars such entry, the City Naturalist, Planning Commission and their agents or employees are empowered to apply to the City Court for an administrative search warrant permitting such inspection.

C. Public hearings and public notification by applicant.

[Amended 3-10-2010 by L.L. No. 4-2010[1]]

(1) When an activity subject to regulation under this chapter also requires Planning Commission approval pursuant to another chapter of the Code of the City of Rye, the requirements for public hearings and public notification by the applicant shall be the same as required for the other approval. When the only other approval involves Chapter 73, Coastal Zone Management Waterfront Consistency Review, the requirements below shall apply. When an activity subject to regulation under this chapter does not also require Planning Commission approval pursuant to another chapter of the Code of the City of Rye and, in the case of Chapter 73, Coastal Zone Management Waterfront Consistency Review, before the Planning Commission acts on the application, it shall hold a public hearing. The applicant shall provide additional public notification in accordance with the public notification requirements set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter. All public notifications must be mailed via certified mail with a certificate of mailing. At least five days prior to the public hearing, all certificates of mailing must be turned into the Planning Commission.

(2) Insofar as possible, any public hearing on the application shall be integrated with any public hearing required or otherwise held pursuant to any other law, including the State Environmental Quality Review Act, and only one public notice need be prepared, provided that the notice contains all of the information required for each hearing.

(3) Any party may present evidence and testimony at the hearing. At the hearing, the applicant shall have the burden of demonstrating that the proposed activity will be in accord with the goals and policies of this chapter and the standards set forth in § 195-5D.

[1] Editor's Note: This local law provided that it shall take effect 5-1-2010.

D. Standards for permit decisions.

(1) In granting, denying or conditioning any permit, the Planning Commission shall evaluate wetland functions and the role of the wetland in the hydrologic and ecological system and shall determine the impact of the proposed activity upon public health and safety, rare and endangered species, water quality and additional wetland functions listed in § 195-1 of this chapter. Impacts and losses shall be avoided to the maximum extent practicable or, if they cannot be avoided, they shall be minimized to the maximum extent practicable. In this determination, it shall consider the following factors and shall issue written findings with respect to those factors which are applicable:

(a) The impact of the proposed activity and existing and reasonably anticipated similar activities upon neighboring land uses and wetland functions as set forth in § 195-1 of this chapter, including but not limited to the following:

[1] The filling in of a wetland or other modification of natural topographic contours.

[2] Disturbance or destruction of natural flora and fauna.

[3] Influx of sediments or other materials causing increased water turbidity and/or substrate aggradation.

[4] Removal or disturbance of wetland soils.

[5] Reductions in wetland water supply.

[6] Interference with wetland water circulation.

[7] Damaging reduction or increases in wetland nutrients.

[8] Influx of toxic chemicals and/or heavy metals.

[9] Damaging thermal changes in the wetland water supply.

[10] Destruction of natural aesthetic values.

(b) Any existing wetland impacts and the cumulative effect of reasonably anticipated future wetland activities in the wetland subject to the application.

(c) The impact of the proposed activity and reasonably anticipated similar activities upon flood flows, flood storage, storm barriers and water quality.

(d) The safety of the proposed activity from flooding, erosion, hurricane winds, soil limitations and other hazards and possible losses to the applicant and subsequent purchasers of the land.

(e) The adequacy of water supply and waste disposal for the proposed uses.

(f) Consistency with federal, state, county and local comprehensive land use plans and regulations.

(g) The availability of preferable alternative locations on the subject parcel or, in the case of activity which cannot be undertaken on the property without disturbance to wetlands, the availability of other reasonable locations for the activity.

(2) The Planning Commission shall deny a permit if:

(a) It finds that it will threaten public health and safety, result in fraud, cause nuisances, impair public rights to the enjoyment and use of public waters, threaten a rare or endangered plant or animal species, violate pollution control standards or violate other federal, state or local regulations; or

(b) It finds that both the affected landowner and the City of Rye have been notified by a duly filed notice, in writing, that the state or any agency or political subdivision of the state is in the process of acquiring the wetland by negotiation or condemnation with the following provisions:

[1] 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.

[2] If the landowner receives no offer for the property within one year of the permit denial, this ban to the permit lapses. If its negotiations with the applicant are broken off, the state or any agency or the City of Rye must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law or this ban to permit lapses.

(3) Special consideration will be given to activities that must have a shoreline or wetland location in order to function and that will have as little impact as possible upon the wetland, watercourse and wetland/watercourse buffer. In general, permission will not be granted for dredging or ditching solely for the purpose of draining wetlands, controlling mosquitoes, lagooning, constructing factories, providing spoil and dump sites or building roadways that may be located elsewhere.

E. Replacement/compensation plan requirements.

(1) Where losses of wetlands or impacts on wetlands are deemed unavoidable by the Planning Commission, the Commission may require the applicant to develop a replacement/compensation plan which shall specify measures that provide for replacement wetlands that re-create as nearly as possible the original wetlands in terms of type, function, geographic location and setting. On-site replacement/compensation shall be the preferred approach; off-site replacement/compensation shall be permitted only in cases where an on-site alternative is not possible. In the case of applications for projects where the total amount of wetland or buffer area is disturbed is less than 2,000 square feet, the Planning Commission may waive or modify the requirements outlined in this subsection.

(2) Replacement/compensation plans developed to compensate for the loss of wetlands shall include the baseline data set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter, as deemed necessary by the Planning Commission.

(3) The Planning Commission shall monitor or shall cause to have monitored projects, according to the specifications set forth in the permit, to determine whether the elements of the plan and permit conditions have been met and whether the wetland acreage created replaces the wetland acreage lost. To this end, the Planning Commission may contract with an academic institution, an independent research group or other qualified professionals, at the expense of the applicant, or may use its own staff expertise. The requirements for monitoring shall be specified in the plan and shall include but not be limited to the requirements set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter.

(4) Any plan prepared pursuant to this section and accepted by the Planning Commission shall become part of the permit for the application.

F. Permit conditions.

(1) Any permit issued pursuant to this chapter may be issued with conditions. Such conditions may be attached as the Planning Commission deems necessary and pursuant to § 195-5D to assure the preservation and protection of affected wetlands and to assure compliance with the policy and provisions of this chapter and the provisions of the Planning Commission's rules and regulations adopted pursuant to this chapter.

(2) Every permit issued pursuant to this chapter shall be in written form and shall contain the standard conditions and may contain the optional conditions set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter.

G. Performance bond. A bond shall be posted with the Planning Commission by the applicant, prior to the issuance of a permit, to secure to the City the satisfactory installation and maintenance of structures and devices necessary to ensure protection of the wetland, watercourse and wetland/watercourse buffer during construction and satisfactory installation of permanent structures and devices necessary to ensure protection of the wetland, watercourse and wetland/watercourse buffer, which shall be in an amount equal to the cost to install and maintain said structures and devices during construction and the cost to install said permanent structures and devices, except as waived or reduced by the Planning Commission. The bond shall be released by the Planning Commission upon completion of the work permitted by said permit, provided that said work is found to be in accordance with the provisions of the permit and such other ordinances as may apply and is completed to the satisfaction of the City Naturalist or other City officials responsible for the enforcement of such City ordinances. If the City finds that said installation and maintenance is not being done by the applicant or is not satisfactory and the applicant fails to correct the situation in the time period specified by the City, the City may proceed against the bond in order to correct for any deficiencies. Not less than 10% of the bond shall be in cash.

H. Other laws and regulations. No permit or waiver granted pursuant to this chapter shall remove an applicant's obligation to comply in all respects with the applicable provisions of any other federal, state or local law or regulation, including but not limited to the acquisition of any other required permit or approval, including but not limited to the New York State Tidal Wetlands Regulations, New York State Freshwater Wetlands Regulations and New York State Coastal Erosion Management Regulations.[2]

[2] Editor's Note: See the Environmental Conservation Law, §§ 25-0101 et seq., 24-0101 et seq. and 34-0101 et seq., respectively.

I. Stop-work order.

(1) A stop-work order may be issued if the applicant or permittee has not complied with any or all of the terms of such permit, has exceeded the authority granted in the permit or has failed to undertake the project in the manner set forth in the approved application.

(2) If a stop-work order is issued it shall be set forth in writing, a copy of which shall be filed with the Planning Commission, and shall contain the finding and reasons for issuing the stop-work order pursuant to this section.

(3) A stop-work order shall be issued when authorized by the Planning Commission pursuant to § 195-4A(3).

J. Consultants and related fees.

[Added 10-8-1997 by L.L. No. 14-1997]

(1) The Planning Commission in the review of any application may refer such application to such engineering, planning, legal, technical or environmental consultant or other professionals, hereinafter referred to as "consultant or consultants," as it deems reasonably necessary to enable it to review such application as required by law, provided that the required expertise is not available from City staff, and subject to the following:

(a) The detailed statement of the consulting services to be provided by the consultant shall include the consultant's fees for said services and a statement by the consultant that the applicant, not the City, shall be ultimately responsible to the consultant for the services provided. The detailed statement shall be sent to the applicant by the City Planner via certified mail, return receipt requested.

(b) If the applicant wishes to review the services and the costs with the Planning Commission, the request for a review shall be in writing and mailed to the City Planner via certified mail, return receipt requested, within seven days of the applicant's receipt of the service and cost statement provided by the City Planner. The Planning Commission shall review the services and costs with the applicant at its next regular meeting following receipt of the request.

(c) The City Planner shall authorize the consultant to proceed if he/she has not received a written request for a review of the consultant's services and costs from the applicant within seven days of the applicant's receipt of the City Planner's transmittal. The receipt date is the date shown as received on the return receipt card returned by the post office.

(d) The applicant shall pay the consultant's fee upon receipt of the consultant's detailed statement for the services provided. The statement will be forwarded to the applicant by the City Planner.

(e) Payment of the consultant's fees shall be required in addition to any and all other fees required by this or any other section of this chapter or any other City law or regulation.

(f) The Planning Commission document taking final action on the application shall not be issued until all consultant's fees charged in connection with the review of the applicant's project have been paid. Payment of the consultant's fees shall be by check made payable to the consultant and shall be submitted to the City Planner for transmittal to the consultant.

(g) This Subsection J shall expire two years after the date of its adoption, unless specifically reenacted by the City Council.

§ 195-6 Referral to Conservation Commission/Advisory Council.

[Amended 6-16-1993 by L.L. No. 8-1993]

The City Planner shall refer all applications and proposed replacement/compensation plans prepared pursuant to § 195-5E to the Conservation Commission/Advisory Council for review and report. The Conservation Commission/Advisory Council shall report back to the Planning Commission within 30 days of the date of the referral by the City Planner when an activity subject to regulation under this chapter also requires Planning Commission approval pursuant to another chapter of the Code of the City of Rye. When the only other approval involves Chapter 73, Coastal Zone Management Waterfront Consistency Review, the requirements described below shall apply. When an activity subject to regulation under this chapter does not also require Planning Commission approval pursuant to another chapter of the Code of the City of Rye and in the case of an activity regulated under this chapter and only Chapter 73, Coastal Zone Management Waterfront Consistency Review, the Conservation Commission/Advisory Council shall report back to the Planning Commission within 20 days of the date of the referral by the City Planner. Failure to reply within the specified time period may be deemed as indicating no objections to the application. In cases where Planning Commission determinations under this chapter are not consistent with the Conservation Commission/Advisory Council report, the Planning Commission shall issue written findings detailing the basis for their determination in variance with the Conservation Commission/Advisory Council report. The City Planner shall provide a copy of the proposed permit decisions and conditions to the Chairman of the Conservation Commission/Advisory Council concurrent with distribution of such proposed permit decisions and conditions to the Planning Commission.

§ 195-7 Penalties for offenses.

A. Civil sanctions. Any person who violates any of the provisions of this chapter shall be liable for a civil penalty of not more than $3,000 for every such violation. Each consecutive day of violation will be considered a separate offense. Such civil penalty may be released or compromised by the Planning Commission. In addition, the Planning Commission shall have power, following a hearing, to direct the violator to restore the affected wetland to its condition prior to the violation, insofar as that is possible.

B. Criminal sanctions. Any person, firm or corporation who willfully violates any of the provisions of this chapter or permits promulgated thereunder, excluding provisions set forth in the rules and regulations promulgated thereunder, upon conviction thereof of the first offense, shall be guilty of a violation punishable by a fine of not less than $500 and not more than $1,000 and for a second offense and each subsequent offense, shall be guilty of a violation punishable by a fine of not less than $1,000 nor more than $2,000 or a term of imprisonment of not more than 15 days, or both. In addition to these punishments, any offender may be ordered by the court to restore the affected wetland to its condition prior to the offense, insofar as that is possible. Each consecutive day of violation will be considered a separate offense.

§ 195-8 Enforcement.

The City Naturalist shall be the enforcement officer for this chapter. No work or activity subject to review under this chapter shall be commenced or undertaken until the City Naturalist has been presented with a wetland permit approved by the Planning Commission. The City of Rye 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, watercourse or wetland/watercourse buffer to its condition prior to the violation of the provisions of this chapter.

§ 195-9 Judicial review.

Any determination, decision or order of the Planning Commission may be judicially reviewed pursuant to Article 78 of the Civil Practice Law and Rules in the Supreme Court for the county in which the wetlands affected are located within 30 days after the date of filing of the determination, decision or order of such Planning Commission with the City Clerk of the City of Rye.

§ 195-10 Severability.

If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances, and to this end the provisions of each section of this chapter are hereby declared to be severable.

§ 195-11 Action on permit application.

A. When an activity subject to regulation under this chapter also requires Planning Commission approval pursuant to another chapter of the Code of the City of Rye, the time limit for taking action on the application shall be the same as required for the other approval. When the only other approval involves Chapter 73, Coastal Zone Management Waterfront Consistency Review, the time limit for taking action is described in Subsection B of this section. The Planning Commission shall, within said time limit, approve, modify and approve or disapprove the permit. If the permit is disapproved, the reasons for such action shall be stated on the records of the Planning Commission and a copy of such reasons will be sent to the applicant. If the permit is approved, it shall not be signed by the approved officers of the Planning Commission until the applicant has met all the conditions of the action granting approval of such permit.

B. When an activity subject to regulation under this chapter does not also require Planning Commission approval pursuant to another chapter of the Code of the City of Rye and in the case of Chapter 73, Coastal Zone Management Waterfront Consistency Review, the Planning Commission shall, within 30 days from the official submittal date of the application or at the meeting following the meeting at which the Conservation Commission/Advisory Council's report was received, whichever occurs last, approve, modify and approve or disapprove the permit. If the permit is disapproved, the reasons for such action shall be stated on the records of the Planning Commission and a copy of such reasons will be sent to the applicant. If the permit is approved, it shall not be signed by the approved officers of the Planning Commission until the applicant has met all the conditions of the action granting approval of such permit.