[HISTORY: Adopted by the Council of the City
of Rye 12-18-1991 by L.L. No. 28-1991. Amendments noted where applicable.]
A.Â
Findings of fact.
(1)Â
In their natural state, wetlands and watercourses
serve multiple functions, including:
(a)Â
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)Â
Controlling flooding and stormwater runoff by
storing or regulating natural flows.
(c)Â
Providing nesting, migratory and wintering habitats
for diverse wildlife species, including many on the New York State
and federal endangered species lists.
(d)Â
Supporting vegetative associations specifically
adapted for survival in low-oxygen environments and/or brackish water
or saltwater.
(e)Â
Providing areas of unusually high plant productivity
which support significant wildlife diversity and abundance.
(f)Â
Providing breeding and spawning grounds, nursery
habitats and food for various species of fish.
(g)Â
Serving as nutrient traps for nitrogen and phosphorous
and filters for surface water pollutants.
(h)Â
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)Â
Providing open space and visual relief from
intense development in urbanized and growing areas and recreational
and aesthetic enjoyment for area residents.
(j)Â
Serving as outdoor laboratories and living classrooms
for the study and appreciation of natural history, ecology and biology.
(2)Â
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)Â
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.Â
Intent
(1)Â
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)Â
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)Â
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)Â
Increasing erosion;
(d)Â
Decreasing breeding, nesting and feeding areas
for many species of waterfowl and shorebirds, including those rare
and endangered;
(e)Â
Interfering with the exchange of nutrients needed
by fish and other forms of wildlife.
(f)Â
Decreasing the habitat for fish and other forms
of wildlife.
(g)Â
Adversely altering the recharge or discharge
functions of wetlands, thereby impacting groundwater or surface water
supplies;
(h)Â
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)Â
Destroying sites needed for education and scientific
research, such as outdoor biophysical laboratories, living classrooms
and training areas;
(j)Â
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)Â
Destroying or damaging aesthetic and property
values, including significant public viewsheds; or
(l)Â
Allowing cumulative loss of wetlands or buffers
through incremental encroachment on wetland or buffer areas.
(2)Â
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.
A.Â
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)Â
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)Â
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)Â
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.
(c)Â
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.Â
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)Â
The land use, improvement, development or activity
has substantially commenced within one year of the effective date
of this chapter.
(2)Â
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)Â
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.Â
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.Â
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.Â
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.
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:
See "wetland/watercourse buffer."
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.
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.
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.
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.
The Building Inspector for the City of Rye or such representative
as designated by the City Manager.
The Naturalist for the City of Rye or such qualified representative
as designated by the City Manager.
The City Planner for the City of Rye or such representative
as designated by the City Manager.
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.
The Commissioner of the Department of Environmental Conservation
of the State of New York.
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.
To adjust the degree of inclination of the natural contours
of the land, including leveling, smoothing and other modification
of the natural land surface.
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.
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."
The seasonal pattern of the water level of a wetland, which
defines the rise and fall of the wetland surface and subsurface water.
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."
Referring to any plant species that can be readily observed
with the naked eye.
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.
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.
That form of written approval required by this chapter for
the conduct of a regulated activity within a wetland, watercourse
or wetland/watercourse buffer.
See "applicant."
Any harmful thermal effect or the contamination or rendering
unclean or impure of any wetland or waters by reason of erosion or
by any waste or other materials discharged or deposited therein.
Any proposed or ongoing action which may result in direct
or indirect physical or chemical impact on a wetland, including but
not limited to any regulated activity.
To dig, dredge, suck, bulldoze, dragline, blast or otherwise
excavate or grade or the act thereof.
Any alteration of the physical, chemical or biological properties
of any wetland or waters, including but not limited to change in odor,
color, turbidity or taste.
Any cutting of trees within the boundaries of a wetland or
wetland/watercourse buffer that is not "clear-cutting" as defined
in this section.
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.
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.
See Chapter 170, Subdivision of Land, of the Code of the City of Rye.
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.
Any area which meets one or more of the following criteria:
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.
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.
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.
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for a sufficient duration to support
hydrophytic vegetation.
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.
A specific area surrounding a wetland/watercourse extending
100 feet horizontally away from and paralleling the wetland/ watercourse
boundary.
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.Â
Wetlands and watercourses map — purpose
and applicability.
(1)Â
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)Â
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)Â
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.Â
City Naturalist determination and appeals.
[Amended 5-6-1992 by L.L. No. 5-1992]
(1)Â
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)Â
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)Â
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.Â
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)Â
Placement or construction of any structure.
(2)Â
Any form of draining, dredging, excavation or removal
of material either directly or indirectly.
(3)Â
Any form of dumping, filling or depositing of material
either directly or indirectly.
(4)Â
Installation of any service lines or cable conduits.
(5)Â
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)Â
Alteration or modification of natural features and
contours.
(7)Â
Alteration or modification of natural drainage patterns.
(8)Â
Construction of dams, docks or other water-control
devices, pilings or bridges, whether or not they change the natural
drainage characteristics.
(9)Â
Installation of any pipes or wells.
(10)Â
Clear-cutting any area of trees.
(12)Â
Deposition or introduction of organic or inorganic
chemicals, including pesticides and fertilizers.
D.Â
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)Â
Normal ground maintenance, including mowing, trimming
of vegetation and removal of dead or diseased vegetation.
(3)Â
Repair of existing structures, including interior
renovations, walkways, walls and docks.
(4)Â
Decorative landscaping and planting in wetland/watercourse buffers, excluding those activities regulated in § 195-4C(11) and (12).
(5)Â
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)Â
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).
(8)Â
Normal beach maintenance, including restoration of
an eroded shoreline to its original state.
E.Â
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.
A.Â
Procedures for permits.
(1)Â
No regulated activity shall be conducted without issuance
of a written permit from the Planning Commission.
(2)Â
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.Â
Permit applications.
(1)Â
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)Â
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)Â
The application fee.
(b)Â
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)Â
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)Â
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)Â
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.Â
Public hearings and public notification by applicant.
[Amended 3-10-2010 by L.L. No. 4-2010[1]]
(1)Â
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)Â
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.
[1]
Editor's Note: This local law provided that it shall take
effect 5-1-2010.
D.Â
Standards for permit decisions.
(1)Â
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)Â
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]Â
The filling in of a wetland or other modification
of natural topographic contours.
[2]Â
Disturbance or destruction of natural flora
and fauna.
[3]Â
Influx of sediments or other materials causing
increased water turbidity and/or substrate aggradation.
[4]Â
Removal or disturbance of wetland soils.
[5]Â
Reductions in wetland water supply.
[6]Â
Interference with wetland water circulation.
[7]Â
Damaging reduction or increases in wetland nutrients.
[8]Â
Influx of toxic chemicals and/or heavy metals.
[9]Â
Damaging thermal changes in the wetland water
supply.
[10]Â
Destruction of natural aesthetic values.
(b)Â
Any existing wetland impacts and the cumulative
effect of reasonably anticipated future wetland activities in the
wetland subject to the application.
(c)Â
The impact of the proposed activity and reasonably
anticipated similar activities upon flood flows, flood storage, storm
barriers and water quality.
(d)Â
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)Â
The adequacy of water supply and waste disposal
for the proposed uses.
(f)Â
Consistency with federal, state, county and
local comprehensive land use plans and regulations.
(g)Â
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)Â
The Planning Commission shall deny a permit if:
(a)Â
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)Â
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]Â
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]Â
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)Â
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.Â
Replacement/compensation plan requirements.
(1)Â
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)Â
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)Â
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)Â
Any plan prepared pursuant to this section and accepted
by the Planning Commission shall become part of the permit for the
application.
F.Â
Permit conditions.
(1)Â
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)Â
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.Â
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.Â
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.Â
Stop-work order.
(1)Â
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)Â
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.
J.Â
Consultants and related fees.
[Added 10-8-1997 by L.L. No. 14-1997]
(1)Â
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)Â
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)Â
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)Â
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)Â
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)Â
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)Â
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.
[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.
A.Â
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.Â
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.
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.
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.
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.
A.Â
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.Â
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.