[HISTORY: Adopted by the Board of Trustees
of the Village of Mamaroneck 2-14-1977 by L.L. No. 3-1977, effective 2-18-1977;[1] amended in its entirety 7-9-2007 by L.L. No. 10-2007,
effective 7-23-2007. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Coastal management — See Ch.
146.
Critical environmental areas — See Ch. 168.
Flood damage prevention — See Ch. 186.
Sewers — See Ch. 282.
Zoning — See Ch. 342.
[1]
Editor's Note: Original Sec. 19, Effective
date, of said local law was amended 11-28-1983 by L.L. No. 14-1983
to read as follows: "This local law shall take effect as of February
18, 1977, nunc pro tunc, and upon the filing of this local law with
the office of the Secretary of State."
The Board of Trustees of the Village of Mamaroneck
hereby finds that wetlands play a fundamental role in the environment
of the Village of Mamaroneck. Wetlands provide a natural habitat for
many forms of wildlife; aid flood control and storm drainage by absorbing
and storing excess precipitation; protect subsurface water resources
and recharge groundwater supplies; protect water quality by functioning
as sedimentation and filtration basins; facilitate recreational and
educational activities; and offer natural open spaces where such open
spaces are in very short supply. Therefore, the Board of Trustees
of the Village of Mamaroneck, pursuant to Article 24 of the Environmental
Conservation Law of the State of New York, declares that it is the
intent of this chapter to promote these public purposes through the
creation of procedures to ensure the preservation, restoration, enhancement
and proper utilization of wetlands and the natural resources and processes
attendant thereto. This chapter shall be known as the "Wetlands Protection
Law."
The following teens, phrases, words and their
derivatives shall have the meanings given terms, herein:
Any land in the Village of Mamaroneck immediately adjacent
to a wetland or lying within 100 feet, measured horizontally, of the
boundary of a wetland.
The Planning Board.
Any person who files an application for any permit issued
by the Agency pursuant to this chapter, and includes the agent of
the owner or a contract vendee.
The Wetlands Appeals Board established by Article 24 of the
State Environmental Conservation Law.
The outer limits of the vegetation specified in Subdivisions
1(a) and (b) of § 24-0107 of the State Environmental Conservation
Law and of the waters specified in Subdivision 1(c) of such section.
A wetland and its adjacent area, as defined herein.
To fill, place, eject or dump any liquid, solid or gaseous
material, but not including stormwater.
A map on which are indicated the boundaries of any freshwater
wetland and which has been filed with the Clerk of the Village of
Mamaroneck by the State Department of Environmental Conservation pursuant
to § 24-0301 of the State Environmental Conservation Law,
as such map may from time to time be amended.
A city, county, town or village.
The applicant, the Agency, the State Department of Environmental Conservation, each local government in which the regulated activity or any part thereof is located and any person who appears and wishes to be a "party in interest" at the public hearing held pursuant to § 192-13.
Any corporation, firm, partnership, association, trust, estate,
one or more individuals and any unit of government or agency or subdivision
thereof.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to humans, plants, animals or property.
Any action which may result in direct or indirect physical
impact on a freshwater wetland, including but not limited to any regulated
activity.
Any form of draining, dredging, excavation or removal of
soil, mud, sand, shells, gravel or other aggregate from any wetland,
either directly or indirectly; any form of dumping, filling or depositing
of any soil, stones, sand, gravel, mud, rubbish or fill of any kind,
either directly or indirectly; erecting any structures or roads, the
driving of pilings or the placing of any other obstructions, whether
or not changing the ebb and flow of the water; any form of pollution,
including, but not limited to, installing a septic tank, running a
sewer outfall and discharging sewage treatment effluent or other liquid
wastes directly into or so as to drain into a wetland; that portion
of any subdivision of land that involves any land in any wetland or
adjacent area; and any other activity which substantially impairs
any of the several functions served by wetlands or the benefits derived
therefrom, which are set forth in § 24-0105 of the State
Environmental Conservation Law.
To dig, dredge, bulldoze, dragline, blast or otherwise excavate
or regrade.
The annual or periodic removal of trees, individually or
in small groups, in order to realize the yield and establish a new
crop and to improve the forest, which removal does not involve the
total elimination of one or more particular species of trees.
Ashes, rubbish, refuse, grass cuttings, tree cuttings, leaves,
garbage, waste matter, offal or discard matter of any type.
The State of New York.
Any state department, bureau, commission, board or other
agency, public authority or public benefit corporation.
Any division of land into two or more lots, parcels or sites,
whether adjoining or not, for the purpose of sale, lease, license
or any form of separate ownership or occupancy, including any grading,
road construction, installation of utilities or other improvements
or any other land use and development preparatory or incidental to
any such division, by any person or by any other person controlled
by, under common control with or controlling such person or by any
group of persons acting in concert as part of a common scheme or plan.
"Subdivision of land" shall include any map, plat or other plan of
division of land, whether or not previously filed. "Subdivision of
land" shall not include the lease of land for hunting and fishing
and other open space recreation uses and shall not include the division
of land by bona fide gift, devise or inheritance.
The Village of Mamaroneck.
Any area which meets one or more of the following criteria:
Lands and waters of the state that meet the
definition provided in § 25-0103, Subdivision 1, of the
New York State Tidal Wetlands Act (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, 2,500 square feet or larger,
that comprise hydric soils or are inundated or saturated by surface
water or groundwater at a frequency and duration sufficient to support,
and under normal circumstances do support, a prevalence of hydrophytic
vegetation, as defined by the technical publication, Federal Manual
for Identifying and Delineating Jurisdictional Wetlands (1989).
No person shall be allowed to undertake or cause
to be undertaken in the wetlands and the adjacent areas to such wetlands
any of the following activities:
A.
Placement or deposition of any solid waste.
B.
Discharge of any organic or inorganic chemical, diluted
or undiluted, or of any chemical waste which will cause deleterious
environmental consequences.
C.
Discharge of any effluents having a temperature of
65° C. or more in the wetland, pond, lake, reservoir or tributary
thereto deleterious to indigenous plants, fish and/or wildlife.
B.
No permit under this chapter shall be required for:
(1)
The deposition or removal of the natural products
of wetlands and adjacent areas of recreational or commercial fishing,
shellfishing, agriculture, hunting or trapping where otherwise legally
permitted and regulated.
(2)
Maintenance of lawns, grazing, farming, gardening and harvesting of crops where otherwise legally permitted, except for the use of chemicals as provided in § 192-3B.
(3)
Public health activities, orders and regulations of
the State Department of Health or the County Department of Health
undertaken in compliance with § 24-0701, Subdivision 5,
of the State Environmental Conservation Law.
(4)
Activities subject to the review jurisdiction of the
State Public Service Commission or the New York State Board on Electric
Generation Siting and the Environment under Article 7 or Article 8
of the State Public Service Law, respectively. The standards and restrictions
of this chapter will be applied by said bodies in determining whether
to issue a certificate of environmental compatibility and public need
under such articles.
(5)
Any emergency activity which is immediately necessary for the protection of life, property or natural resources. Within 48 hours of the commencement of such emergency activity, the person conducting such activity shall notify the Agency that such activity is being conducted. Within five days of the cessation of such emergency activity, the person conducting such activity shall provide the Agency with a full written report specifying the need for the activity and including the information required in § 192-5.
(6)
Any activity located in a wetland where such wetland
is located in more than one city, town or village.
(7)
The conservation of soil, water, vegetation, fish
and wildlife.
(8)
Outdoor recreation, including play and sporting activities,
field trails for nature study, hiking, horseback riding restricted
to trails established for that purpose, swimming, camping, boating,
trapping, hunting and fishing where otherwise legally permitted and
regulated.
(9)
Ordinary repair and maintenance of existing structures
or improved areas which does not involve expansion or substantial
restoration, reconstruction, rehabilitation, or modification, including
but not limited to bridges, roads, highways, railroad beds, bulkheads,
docks, pilings or paved areas.
(10)
Scientific and educational pursuits not inconsistent
with the intent of this chapter.
A.
Any person proposing to conduct or cause to be conducted
a regulated activity requiring a permit under this chapter upon any
controlled area shall file an application for a permit with the Clerk
of the Village of Mamaroneck. The Clerk shall immediately forward
such application to the Agency.
B.
Information required.
(1)
An application for a permit shall be filed by the
applicant on a form prescribed by the Agency. Such application shall
set forth the purpose, character and extent of the proposed regulated
activity. The application shall include:
[Amended 11-28-2022 by L.L. No. 5-2022, effective 12-1-2022]
(a)
A detailed description of the regulated activity;
(b)
A map showing the area of wetland or adjacent area directly affected,
with the location of the proposed regulated activity thereon;
(c)
A deed or other legal description describing the subject property;
(d)
Where the proposed regulated activity involves the removal of one or more protected trees, a tree preservation plan in accordance with the requirements of Chapter 318 of this Code; and
(e)
Such additional information as the Agency deems sufficient to enable
it to make the findings and determinations required under this chapter.
(2)
The application shall be accompanied by a list of
the names of the owners of record of lands adjacent to the wetland
or adjacent area upon which the project is to be undertaken and the
names of known claimants of water rights, of whom the applicant has
notice, which relate to any land within or within 100 feet of the
boundary of the property on which the proposed regulated activity
will be located.
(3)
An application shall not be deemed to be completed
or received until the Agency determines that all such information,
including any additional information requested, has been supplied
in a complete and satisfactory form.
C.
The Clerk of the Village of Mamaroneck shall cause
a copy of such completed application to be mailed to all local governments
where the proposed activity or any part thereof is located.
[Amended 9-12-2023 by L.L. No. 15-2023, effective 9-21-2023]
The applicant must comply with the notification requirements set forth in Chapter 372 of this Code (Land Use Application Notice Requirements).
A.
No sooner than 30 days and not later than 60 days after its receipt of a completed application for a permit regarding a proposed regulated activity and after the publication of a notice of application pursuant to § 192-6, the Agency shall hold a public hearing on such application at a suitable location in the Village of Mamaroneck, which hearing shall be held pursuant to the provisions of § 192-13.
B.
Notwithstanding the provisions of Subsection A above, where no notice of objection to the notice of application published pursuant to § 192-6 shall have been filed within the time specified by that notice or where the Agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any wetland, the Agency may, in its discretion, dispense with such hearing. Where the Agency finds that a public hearing is not necessary, it shall publish a decision setting forth its reasons therefor, which decision shall be a matter of public record and shall be mailed to each local government where the proposed regulated activity or any part thereof will be located. Public notice of such decision that a public hearing is not necessary shall be provided in the same manner as notice of application set forth in § 192-6.
[Amended 9-12-2023 by L.L. No. 15-2023, effective 9-21-2023]
The applicant must comply with the notification requirements set forth in Chapter 372 of this Code (Land Use Application Notice Requirements).
The Agency shall make the application, including
all documents and maps associated with it, available for public inspection
at the office of the Clerk of the Village of Mamaroneck.
A.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to § 192-8 and the applicant waives, in writing, any public hearing on his or her application, the Agency may dispense with a public hearing and, in such instance, shall provide public notice of the cancellation of the hearing.
An application fee in the amount as set forth in Chapter A347, Fees, shall be required at the time application for a wetland permit is submitted to the Agency. Any inspection costs required and incurred in inspecting the property are to be charged to the applicant and are payable prior to the issuance of a permit. Said costs shall be determined by the Village Engineer.
Where determined appropriate, the Agency may
forward one copy of the application to the Village Engineer, the Building
Inspector, the Department of Public Works, the applicable Fire District,
the Police Department, the Westchester County Soil and Water Conservation
District and any other local, state, county, regional and federal
agencies having jurisdiction, for their report and recommendations,
prior to the holding of a hearing.
A.
Any public hearing held on a permit application received
under this chapter shall be conducted by the Agency. The Agency shall
have full authority to control the conduct and procedure of the bearing
and shall be responsible that a complete record of the hearing is
kept. The public hearing shall be held within the Village of Mamaroneck.
B.
Any person may appear as a party in interest, notwithstanding
the failure of such person to file a timely notice of appearance,
by appearing at the hearing and making known his or her desire to
be a party in interest. Persons who are not parties in interest may
be allowed to participate in the hearing where the Agency finds that
such participation would be in the public interest.
C.
All parties in interest shall be afforded an opportunity
to present oral and written arguments on issues of law and policy
and an opportunity to call witnesses in their behalf and to present
oral and written evidence on issues of fact. The Agency shall permit
the parties in interest to cross-examine witnesses but may limit such
cross-examination to avoid the introduction of irrelevant or repetitious
material in the record of the hearing.
A.
Where a public hearing has been held regarding a permit
application, the Agency shall either issue the permit requested, with
or without conditions, or deny the application. The decision by the
Agency to issue or deny a permit after public hearing shall be based
on the record of the hearing and shall be made, in writing, within
30 days of the Agency's receipt of the hearing record.
B.
Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to § 192-7B or because no notice of appearance was filed with regard to the public hearing and a hearing was canceled pursuant to § 192-10, the Agency shall compile an official file consisting of documents submitted by the applicant and any additional documents relied on by the Agency with respect to the application. The Agency may also take notice of the general, technical or scientific facts within the specialized knowledge of the Agency. Any document made part of such official file shall be available for inspection by the applicant and any interested member of the public. On the basis of such file, the Agency shall either issue the permit requested, with or without conditions, deny the application or order a public hearing to be held pursuant to the provisions of this chapter. The decision by the Agency to issue or deny a permit or to order that a hearing be held shall be based on the official file and shall be made, in writing, within 30 days of its completion of the official file and, in any event, within 60 days of its receipt of a completed application, provided that, in the case where there have been no objections filed regarding a proposed project, the issuance of a permit shall be deemed to be a written decision by the Agency.
C.
A copy of the decision of the Agency on each application
for a permit under this chapter shall be mailed by the Agency, as
soon as practicable following such decision, to the applicant and
to each local government within whose boundaries the proposed regulated
activity or any portion thereof is located and, if a public hearing
has been held regarding the application, to each party in interest.
D.
In granting, denying or conditioning any permit, the
Agency shall consider the effect of the proposed activity with reference
to the public health and welfare, fishing, flood, hurricane and storm
dangers and protection or enhancement of the several functions of
the wetlands and the benefits derived therefrom which are set forth
in § 24-0105 of the State Environmental Conservation Law.
E.
Specific standards of consideration.
(1)
No permit shall be issued by the Agency pursuant to
this chapter unless the Agency shall find that:
(a)
The proposed regulated activity is consistent
with the policy of this chapter to preserve, protect and conserve
wetlands and the benefits derived therefrom, to prevent the despoliation
and destruction of wetlands and to regulate the development of such
wetlands in order to secure the natural benefits of wetlands consistent
with the general welfare and beneficial economic, social and agricultural
development of the Village of Mamaroneck.
(b)
The proposed regulated activity is consistent
with the land use regulations applicable in the Village of Mamaroneck
pursuant to § 24-0903 of Article 24 of the State Environmental
Conservation Law.
(c)
The proposed regulated activity is compatible
with the public health and welfare.
(d)
The proposed regulated activity is reasonable
and necessary.
(e)
There is no reasonable alternative for the proposed
regulated activity on a site which is not a wetland or adjacent area.
(2)
The applicant shall have the burden of demonstrating
that the proposed regulated activity will be in accord with the standards
set forth in this section.
F.
Duly filed written notice by the state or any agency
or subdivision thereof to the Agency that the state or any such agency
or subdivision is in the process of acquiring the affected wetland
on which a proposed regulated activity would be located by negotiation
or condemnation shall be sufficient basis for denial of a permit for
such regulated activity. Such notice may be provided at any time prior
to the Agency's decision to issue or deny a permit for the regulated
activity.
A.
Any permit issued pursuant to this chapter may be
issued with conditions. Such conditions may be attached as are necessary
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 Agency's rules and regulations adopted pursuant
to this chapter.
B.
Every permit issued pursuant to this chapter shall
contain the following conditions:
(1)
The Agency shall have the right to inspect the project
from time to time.
(2)
The permit shall expire on a certain date.
(3)
The permit holder shall notify the Agency of the date
on which project construction is to begin at least five days in advance
of such date.
(4)
The Agency's permit shall be prominently displayed
at the project site during the undertaking of the activities authorized
by the permit.
C.
The Agency shall set forth, in writing, in the file
it keeps regarding a permit application, its findings and reasons
for all conditions attached to any permit.
In order to carry out the purposes and provisions
of this chapter, the Agency shall have the following powers:
A.
To adopt, amend and repeal, after public hearing,
except in the case of rules and regulations that relate to the organization
or internal management of the Agency, such rules and regulations consistent
with this chapter as it deems necessary to administer this chapter
and to do any and all things necessary or convenient to carry out
the purpose and policies of this chapter.
B.
To request the Village of Mamaroneck to contract for
professional and technical assistance and advice.
C.
To hold hearings and subpoena witnesses in the exercise
of its powers, functions and duties provided for by this chapter.
A.
To the greatest extent practicable, any public hearing held pursuant to § 192-13 shall be incorporated with any public hearing required by or pursuant to the New York State Town Law, Village Law, General City Law, General Municipal Law, or Environmental Conservation Law relating to approvals or permits otherwise required for the undertaking of regulated activities on the wetland or adjacent area in question.
B.
No permit granted pursuant to this chapter shall remove
any person'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.
A.
The Agency may require that, prior to commencement
of work under any permit issued pursuant to this chapter, the permittee
shall post a bond with the Agency in an amount determined by the Agency,
conditioned upon the faithful compliance with the terms of such permit
and for the indemnification of the Village of Mamaroneck for restoration
costs resulting from failure to so comply. Such bond shall be issued
by a corporate surety authorized to do business in the state and shall
be in favor of the Village of Mamaroneck. It shall remain in effect
until the Agency certifies that the work has been completed in compliance
with the terms of the permit or the bond is released by the Agency
or a substitute bond is provided.
B.
The Agency shall set forth, in writing, in the file
it keeps regarding a permit application, its findings and reasons
for imposing a bond pursuant to this section.
A.
The Agency may suspend or revoke a permit issued pursuant
to this chapter where it finds that the permittee has not complied
with any or all 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 application.
B.
The Agency shall set forth, in writing, in the file
it keeps regarding a permit application, its findings and reasons
for revoking or suspending a permit pursuant to this section.
A.
Administrative sanctions.
(1)
Any person who violates, disobeys or disregards any
provision of this chapter, including any provision of any permit issued
pursuant to this chapter or any rule or regulation adopted by the
Agency pursuant to this chapter, shall be liable to the people of
the state for a civil penalty of not to exceed $3,000 for every such
violation, to be assessed, after a hearing or opportunity to be heard,
upon due notice and with the rights to specification of the charges
and representation by counsel at such hearing, by the Agency. Such
penalty may be recovered in an action brought by the Attorney General
at the request and in the name of the Agency in any court of competent
jurisdiction. Such civil penalty may be released or compromised by
the Agency before the matter has been referred to the Attorney General,
and such penalty may be released or compromised and any action commenced
to recover the same may be settled and discontinued by the Attorney
General with the consent of the Agency. In addition, the Agency shall
have the power, following a hearing held in conformance with the procedures
set forth in § 71-1709 of the State Environmental Conservation
Law, to direct the violator to cease his or her violation of this
chapter and to restore the affected wetland to its condition prior
to the violation, insofar as that is possible, within a reasonable
time and under the supervision of the Agency. Any such order of the
Agency shall be enforceable in an action brought by the Attorney General
at the request and in the name of the Agency in any court of competent
jurisdiction. Any civil penalty or order issued by the Agency pursuant
to this subsection shall be reviewable in a proceeding pursuant to
Article 78 of the State Civil Practice Law and Rules.
(2)
No building permit shall be issued within a controlled
area unless a wetland permit is first issued pursuant to this chapter.
(3)
No certificate of occupancy for any structure or use
within a controlled area shall be issued unless all of the required
conditions of a permit issued pursuant to this chapter are first complied
with. The continued validity of any certificate of occupancy shall
be subject to continued conformance to this chapter and any permit
issued pursuant hereto.
(4)
A wetland permit previously issued is subject to suspension
or revocation pursuant to the provisions of this chapter.
(5)
Any revision of any approved activities within a controlled
area shall be subject to the procedures provided under this chapter.
B.
Criminal sanctions.
(1)
Any person who violates an order, permit or rule or
regulation of the Agency regulating wetlands and adjacent areas pursuant
to this chapter shall, in addition, for the first offense, be guilty
of a violation punishable by a fine of not less than $500 nor more
than $1,000; for a second and each subsequent offense, he or she shall
be guilty of a misdemeanor punishable by a fine of not less than $1,000
nor more than $2,000 or a term of imprisonment of not less than 15
days nor more than six months, or both. Instead of these punishments,
any offender may be punishable by being ordered by the court to restore
the affected wetland to its condition prior to the offense, insofar
as that is possible. The court shall specify a reasonable time for
the completion of such restoration, which shall be effected under
the supervision of the Agency. Each offense shall be a separate and
distinct offense, and, in the case of a continuing offense, each day's
continuance thereof shall be deemed a separate and distinct offense.
(2)
In addition, any person found violating any provisions
of this chapter shall be liable to the Village of Mamaroneck for any
expense, loss or damage resulting from the activity, in addition to
any fine or other punishment which may be imposed hereunder.
A.
The Attorney General, upon his or her own initiative
or upon complaint of the Agency, shall prosecute persons alleged to
have violated any such order of the Agency pursuant to this chapter.
B.
Notwithstanding the penalties hereinabove provided,
the Village of Mamaroneck may maintain an action or proceeding in
a court of competent jurisdiction to compel compliance with or to
restrain by injunction the violation of any provisions of this chapter
or any permit granted hereunder.
A.
Any decision or order of the Agency made pursuant
to or within the scope of this chapter may be reviewed at the instance
of any person affected thereby, including but not limited to any owner
of the affected wetland or adjacent area and any resident or citizen
of the Village of Mamaroneck, by the Board in accordance with Title
11 of Article 24 of the State Environmental Conservation Law, provided
that such review is commenced by the filing with the Board of a notice
of review within 30 days after service of such order or notice of
such decision is given, as the case may be.
B.
Any party to any proceeding before the Agency may
make an appeal to the Board, in accordance with Title 11 of Article
24 of the State Environmental Conservation Law, from any order or
decision of the Agency issued or made pursuant to or within the scope
of this chapter, provided that such appeal is commenced by the filing
with the Board of a notice of appeal within 30 days after service
of such order or after notice of such decision is given, as the case
may be.
C.
Any decision or order of the Agency made pursuant
to or within the scope of this chapter may be reviewed at the instance
of any person, including but not limited to any owner of the affected
wetland or adjacent area and any resident or citizen of the Village
of Mamaroneck, in accordance with Article 78 of the State Civil Practice
Law and Rules, provided that such review is commenced within thirty
(30) days of the filing of such decision or order; and the limitation
upon the availability of such remedy as prescribed in § 7801
of the Civil Practice Law and Rules shall not be applicable to the
applications for review of determinations and orders made pursuant
to this chapter.
D.
The institution of a judicial proceeding to review
a determination or order of the Agency shall preclude the institution
of a proceeding before the Board to review such a determination or
order. The availability of such review by the Board shall not affect
the right of any person to seek review of a determination of the Agency
as provided in Article 78 of the State Civil Practice Law and Rules.
