Town of Ossining, NY Freshwater Wetlands, Watercourses and Water Body Protection

In their natural state, wetlands serve a myriad of valuable ecological functions important to the public welfare. These functions include but are not limited to the following:

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.

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

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

(d)

Supporting unique vegetative associations specifically adapted for survival in low-oxygen environments.

(e)

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

(f)

Providing breeding and spawning grounds, nursery habitat and food for various species of fish.

(g)

Serving as nutrient traps for nitrogen and phosphorus, and filters for surface water pollutants.

(h)

Helping to maintain biospheric stability by supporting particular 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 a rapidly growing area.

(j)

Serving as outdoor laboratories and living classrooms for the study and appreciation of natural history, ecology and biology, and serving generally as an education and research resource.

(k)

Providing recreation areas for fishing, boating, hiking, bird watching, photography, camping and other uses.

(l)

Controlling erosion by serving as sedimentation areas and filter basins, absorbing silt and organic matter.

(m)

Providing carbon sequestration to offset climate change.

[Added 12-15-2015 by L.L. No. 7-2015]

A significant amount of the town's wetland base has been lost or impaired by draining, dredging, filling, excavating, building, polluting and other acts inconsistent with the natural uses of such areas. The remaining wetlands are potentially in jeopardy of being lost in a similar fashion.

Legislative intent. It is the intent of the Town of Ossining that activities in and around wetlands, watercourses and water bodies conform with all applicable building codes and other regulations. Such activities shall not threaten public safety or welfare or the natural environment, or cause nuisances by factors including but not limited to the following:

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

Increasing water pollution through location of domestic waste disposal systems in wet soils; inappropriate siting of stormwater control facilities; improper and careless application and/or disposal of fertilizers, pesticides, herbicides and algaecides in a wetland; 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;

Increasing erosion; or

Adversely affecting any of the other wetland functions specified in § 105-1C above.

Policy.

It is declared to be the intent of the town to control, protect, preserve, conserve and regulate the use of wetlands within the town to ensure that the benefits found to be provided by wetlands as set forth in § 105-1C hereof will not be lost.

These regulations are enacted with the intent of providing a reasonable balance between the rights of the individual property owners and the public interest in preserving the valuable functions of wetlands.

DAMS AND WATER-CONTROL MEASURES

It is the intent hereof to incorporate wetlands protection into the town's land development regulations.

§ 105-2 Definitions and word usage.

Except where specifically defined herein, all words used in this chapter shall carry their customary meanings. Words used in the present tense include the future and the plural includes the singular.

As used in this chapter, the following terms shall have the meaning indicated:

APPLICANT

Any individual, firm, partnership, association, corporation, company, organization or other legal entity of any kind, excluding the Town of Ossining and its governmental agencies, who request the approval authority to issue a permit or to whom a permit has been granted under the provisions of this chapter. This chapter shall only serve as a guide to the Town of Ossining and its governmental agencies.

APPROVAL AUTHORITY

The town agency(s) or public official(s) empowered to administer the permit procedures of this chapter, as described herein.

BOUNDARY OF A WETLAND

The outer limit of the soils, hydrology and/or vegetation as defined under the term "wetland."

BUFFER AREA

An area surrounding a wetland, watercourse or water body that is also subject to the regulations as specified herein.

BUILDING INSPECTOR

The Building Inspector of the Town of Ossining.

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

DEPOSIT

To fill, grade, discharge, emit, dump or place any material.

DISCHARGE

The emission of any water, substance or material into a wetland, watercourse or their buffers, whether or not such substance causes pollution.

DRAIN

To deplete or empty of water by drawing off by degrees or in increments.

DREDGE

To excavate or remove sediment, soil, mud, sand, shells, gravel or other aggregate.

ENVIRONMENTAL ADVISORY COMMITTEE

-The Environmental Advisory Committee of the Town of Ossining.

EXCAVATE

To dig out and remove any material.

FILL

Same as the term "deposit."

FRESHWATER WETLAND

Same as the term "wetland."

FRESHWATER WETLANDS MAP, NEW YORK STATE

The final freshwater wetlands maps for Westchester County promulgated by the Commissioner of the New York State Department of Environmental Conservation pursuant to § 24-0301, Subdivision 5, of the New York State Freshwater Wetlands Act, or such map as has been amended or adjusted, and on which are indicated the approximate locations of the actual boundaries of wetlands regulated pursuant to Article 24 of the Environmental Conservation Law.

GRADING

To adjust the degree of inclination of the natural contours of the land, including leveling, smoothing and other modification of the natural land surface.

GROWING SEASON

The portion of the year when soil temperatures at 19.7 inches below the soil surface are higher than biologic zero (5° C.) (U.S. Department of Agriculture, Soil Conservation Service, 1985). For ease of determination, this period can be approximated by the number of frost-free days (U.S. Department of the Interior, 1970).

[Added 12-15-2015 by L.L. No. 7-2015]

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 by the New York State Department of Environmental Conservation wetlands delineation manual, as such document may be amended from time to time.

[Amended 12-15-2015 by L.L. No. 7-2015]

HYDROPHYTIC VEGETATION

Plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content.

[Amended 12-15-2015 by L.L. No. 7-2015]

MATERIAL

All liquid, solid or gaseous substances.

PERMIT

The written municipal approval required by this chapter for the conduct of a regulated activity within a wetland, watercourse, water body or buffer area.

PLANNING BOARD

The Planning Board of the Town of Ossining.

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.

STATE ENVIRONMENTAL QUALITY REVIEW ACT

The law pursuant to Article 8 of the New York Environmental Conservation Law providing for environmental quality review of actions.

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, swimming pools and decks.

TOWN

The unincorporated portions of the Town of Ossining.

TOWN BOARD

The Town Board of the Town of Ossining.

WATER BODY

Any natural or artificial pond, lake, reservoir or other area which ordinarily or intermittently contains water and which has a discernible shoreline, but not including a watercourse as defined in this chapter or a man-made swimming pool not associated with a wetland or watercourse.

WATERCOURSE

A running stream of water; a natural stream fed from permanent or natural sources, including rivers, creeks, springs, runs and rivulets; a stream, usually flowing in a particular direction, though it need not flow continuously (it may sometimes be dry). It usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land, occasioned by unusual freshets or other extraordinary causes.

[Amended 12-15-2015 by L.L. No. 7-2015]

WETLAND

[Amended 12-15-2015 by L.L. No. 7-2015]

All areas that comprise hydric soils and/or are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation.

WETLANDS AND DRAINAGE MAP

Except with respect to the size of buffer areas pursuant to § 105-3B herein, the term "wetland," as used in this chapter, shall include watercourses and water bodies.

The most current Town of Ossining Wetlands and Drainage Map, dated February 24, 1998, adopted by the Town Board and as from time to time updated, which shows the approximate location of areas classified as wetlands. This map is intended to provide general guidance in locating and determining those areas which constitute wetlands, as defined herein. The actual boundary of a wetland shall be determined on a site-by-site basis and confirmed by the approval authority.

ZONING BOARD OF APPEALS

The Zoning Board of Appeals of the Town of Ossining.

§ 105-3 Rules for establishing and interpreting wetland and buffer area boundaries.

Wetlands. The applicant shall be responsible for having the boundaries of the wetland(s) and buffer area(s) delineated by a qualified environmental professional by field investigation during a growing season, with soils not snow covered or frozen, and with each turning point flagged and identified by GPS location, and subsequently surveyed and mapped by a licensed land surveyor. A full report regarding the delineation with data sheets shall also be submitted by said professional. The approval authority may also consult, at the expense of the applicant, with biologists, hydrologists, soil scientists, ecologists/botanists or other experts and professionals as deemed necessary by said authority to make this delineation.

[Amended 12-15-2015 by L.L. No. 7-2015]

Buffer areas. The exact size of the buffer area shall be determined as follows:

For all water bodies and for all non-watercourse wetlands, the buffer area shall extend 100 feet away from the edge of said water body or wetland as measured horizontally from the boundary of said water body or wetland.

For all watercourses, the buffer area shall extend 50 feet away from the edge of said watercourse as measured horizontally from the boundary of said watercourse.

§ 105-4 Applicability.

The provisions of this chapter shall apply to all lands defined and/or designated as wetlands, watercourses, water bodies and buffer areas.

§ 105-5 Allowable, regulated and prohibited acts.

No regulated activity shall be conducted in a wetland, watercourse, water body or buffer area without a written permit from the approval authority and full compliance with the terms hereof and other applicable regulations.

Allowable activities. The following uses shall be allowed without a permit within a wetland or buffer area as specified below:

Normal ground maintenance, including mowing, trimming of vegetation and removal of dead or diseased vegetation around a residence.

Repair of existing walkways and walls.

Maintenance of existing decorative landscaping and planting in buffer areas only.

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

Normal gardening activities and the composting of leaves, grass clippings or other vegetation in buffer areas only, located within a private residential lot.

Operation and maintenance of existing dams and water control devices, excluding the adjustment of water elevations over 18 inches in height.

[Added 12-15-2015 by L.L. No. 7-2015]

(7)

Maintenance of existing drainage channels where impedance of flow may cause flooding or threaten public safety on highways or in dwellings or other structures.

[Added 12-15-2015 by L.L. No. 7-2015]

(8)

Maintenance and repair of any best management practice (BMP) installed for stormwater management purposes.

[Added 12-15-2015 by L.L. No. 7-2015]

(9)

Manual removal of accumulated sediment, up to a maximum of two cubic yards, located within five feet of the end of a pipe which crosses under a road or driveway.

[Added 12-15-2015 by L.L. No. 7-2015]

Regulated acts which require a permit. It shall be unlawful, in the absence of a written permit issued by the approval authority, to do any of the following activities in any wetland, watercourse, water body or buffer area:

Placement or construction of any structure.

Any form of draining, dredging, excavation or removal of material, or any dumping, filling or depositing of material, either directly or indirectly.

Installation of any service lines or cable conduits.

Installation of a septic tank, the running of a sewer outfall or the discharging of sewage treatment effluent or other liquid wastes into or so as to drain into a wetland, watercourse, water body or buffer area with the approval of the Westchester County Department of Health.

[Amended 12-15-2015 by L.L. No. 7-2015]

Alteration or modification of natural features or contours.

Alteration or modification of natural drainage patterns or watercourses.

(7)

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

(8)

Operation of existing dams and water-control devices, involving the adjustment of water level more than 18 inches or any adjustment of water level which is in place for more than one week.

(9)

Installation of any pipes, wells or utility lines.

(10)

Within the same one-acre area, the cutting of more than three trees which are over six inches in diameter at a point four feet from ground level within an eighteen-month period.

(11)

Plowing or harrowing of over 1/4 acre.

(12)

Grazing of horses or other animals.

(13)

Any other activity that may impair the natural function(s) of a wetland as described in § 105-1C of this chapter.

Prohibited acts. It shall be unlawful to place or deposit chemical wastes or to introduce influents of such thermal content so as to cause deleterious ecological effect in any wetland, watercourse, water body or buffer area. Also unlawful shall be the installation of a septic tank, the running of a sewer outfall or the discharging of sewage treatment effluent or other liquid wastes into or so as to drain into a wetland, watercourse, water body or buffer area without the approval of the Westchester County Department of Health.

[Amended 12-15-2015 by L.L. No. 7-2015]

§ 105-6 Application procedure for permits issued by Building Inspector.

Application contents. Five copies of the application and an application review fee as determined by the Town Board shall be submitted to the Town Building and Planning Department office. The application shall contain the following information:

The name and address of the owner and applicant.

The street address and tax map designation of the property to which the application pertains.

A statement of consent from the owner for any agent making application.

A statement of proposed work and purpose thereof.

Applications affecting the water retention capacity, water flow and other drainage characteristics of any wetland shall include a statement of the impact of the project on upstream and downstream areas, giving appropriate consideration to flood or drought levels of watercourses and amounts of rainfall.

A discussion of the existing specific ecological functions of the wetland being affected, based on the functions described in § 105-1C herein, and the impacts to those functions by the proposed activity.

(7)

Copies of all applicable county, state and/or federal permits or permit applications that are required for the proposed work or improvement.

(8)

The delineation mapping and report specified in § 105-3A of this chapter.

[Added 12-15-2015 by L.L. No. 7-2015]

Referrals. The Building Inspector, upon receipt of an application meeting the requirements of this section, shall refer the application to the Environmental Advisory Committee for its review and report. For permits issued by the Building Inspector, the Environmental Advisory Committee shall render a report to the Building Inspector within 10 days of the referral date; for permits issued by the Planning Board, the Environmental Advisory Committee shall report to the Planning Board within 30 days of the referral date or within such other period as may be specified by the Planning Board. The approval authority shall have no obligation to consider the Environmental Advisory Committee's report, unless said report is rendered within the time frames specified herein. In the case of a wetland, watercourse or water body crossing a municipal line, upon receipt of the application, the Building Inspector shall also forward a copy of the application to the Clerk of the abutting municipality.

Initial review of application by Building Inspector.

The Building Inspector shall review the application for the purpose of determining whether the application is eligible for processing under the provisions of Subsection D immediately below (Regulated acts permitted with permit issued by Building Inspector) and, if so, the Building Inspector shall process the application within 21 days of receipt of a complete application in accordance with the provisions of this chapter.

If the Building Inspector determines that the application is not eligible for processing under the provisions of Subsection D immediately below, he/she shall provide written notice of such decision to the applicant within 21 days of receipt of a complete application and shall refer the application to the Planning Board for processing pursuant to § 105-7.

Regulated acts permitted with permit issued by the Building Inspector.

[Amended 12-15-2015 by L.L. No. 7-2015]

The following regulated activities are determined by this chapter to be limited in scope and potential impact and are the activities within wetlands or buffer areas for which a permit issued by the Building Inspector may be granted:

Construction of a driveway when the length of a wetland or buffer area crossing or intrusion is less than 100 feet, excluding the construction of driveways of any length which cause hydrological isolation of a portion of a wetland; if a natural drainage system crossing is proposed, where a single culvert of less than 25 feet in length and 18 inches in diameter is required.

The application of nonpolluting chemicals or dyes for the purpose of maintenance that does not change the character of the wetland (such as Health Department testing).

Decks or porches with a footprint of 200 square feet or less located more than 50 feet from a wetland or watercourse, provided that no grading is required for their construction other than for posts or footings.

(d)

Single-story movable sheds, without foundation or footings, with a footprint of 100 square feet or less located more than 50 feet from a wetland or watercourse, provided that:

Such sheds are not used for the storage of gasoline, oil, pesticides or other chemicals or toxic substances or any tools, machinery or equipment which use any such substances; and

No grading is required for installation.

(e)

Movable play sets or swing sets or other small additions to existing structures, without foundation, with a footprint of 100 square feet or less and located more than 50 feet from a wetland or watercourse, provided that no grading is required for installation.

(f)

Fences without mesh, provided:

No fence post is to be placed in the streambed or within three feet from the edge of the stream; and

The bottom of the fence is to be no lower than 12 inches above seasonal high water of the stream; and

[3]

No grading is required for installation.

(g)

Dry-laid stone walls, containing no mortar or cement, where the wall is designed to permit the passage of small animals by permitting openings at fifteen-foot intervals at least six inches in height above ground level and 12 inches in length, and where the construction of said wall will not inhibit or alter the natural drainage flow or cause the blocking or damming of surface water.

Notwithstanding the foregoing, no regulated activity shall be permitted with a permit issued by the Building Inspector when such activity is proposed for an area designated as a wetland on the New York State Freshwater Wetlands Map.

If the Building Inspector determines that the granting of a permit for one or more of the activities in Subsection D(1) immediately above would be appropriate in light of the standards set forth in § 105-8 below, the Building Inspector shall grant the permit within 21 days of receipt of a complete application. Notwithstanding the foregoing, the Building Inspector, in his/her sole discretion, may forward any application for a permit to the Planning Board for processing in accordance with the provisions of § 105-7 below.

However, in the event that the Building Inspector determines that the granting of a permit for one or more of the activities in Subsection D(1) immediately above would be inappropriate in light of the standards set forth in § 105-8 below, the Building Inspector shall neither approve nor deny the application, but rather shall notify the applicant within 21 days of receipt of a complete application and shall forward the application to the Planning Board for processing in accordance with the procedures set forth in § 105-7 below.

§ 105-7 Procedures for permit applications to Planning Board.

Application contents.

Ten copies of the application and an application review fee as determined by the Town Board shall be submitted to the Town Building and Planning Department office. The application shall contain the following information:

The information specified in § 105-6A above.

An explanation of why the proposed activity cannot be located at another site.

A list of names of the owners of record of lands adjacent to the wetland, watercourse, water body and/or buffer area in which the project is to be undertaken, and the names of claimants of water rights which relate to any land within or within 100 feet of the edge of the buffer area in which the regulated activity is proposed to be located.

(d)

A stormwater plan showing stormwater flow off of the development and how it will not increase or decrease the amount of water leaving the development, and how it will not decrease the quality of water found before construction entering into the wetland, watercourse and/or water body.

Additional information may be requested by the Planning Board including any of the following:

Complete plans and estimates for the proposed site improvements, which shall be certified by a professional engineer, architect, land surveyor or landscape architect licensed in the State of New York, drawn to a scale no less detailed than one inch equals 50 feet and showing the following:

The location of all wetlands, watercourses and water bodies on the site under review and within 200 feet of the site no earlier than 12 months prior to the date of filing the application.

A description of the vegetative cover of the regulated area.

[3]

A description of the soil types on-site.

[4]

Location of the construction area and the area proposed to be disturbed, and their relation to property lines, roads, buildings and watercourses within 250 feet.

[5]

The exact locations, specifications and amount of all proposed draining, filling, grading, dredging and vegetation removal or displacement, and the procedures to be used to do the work.

[6]

Location of all wells and depths thereof, and all sewage disposal systems.

[7]

Existing and adjusted contours at two-foot intervals in the proposed disturbed area and to a distance of 50 feet beyond; and elevations of the. site and adjacent lands within 200 feet of the proposed work site at contour intervals of no greater than 10 feet.

[8]

Details of any temporary or permanent drainage system proposed both for the conduct of the work and after completion thereof, including locations at any point discharges, artificial inlets or other man-made conveyances which would discharge into the wetland or wetland buffer, and measures proposed to control erosion, flooding and water pollution both during and after the work.

[9]

Where creation of a lake or pond is proposed, details of the construction of any dams, embankments, outlets or other water control devices, and analysis of the wetland hydrologic system, including seasonal water fluctuation, inflow/outflow calculations and subsurface soil, geology and groundwater conditions.

[10]

On the plan for development, a means on-site for a line of demarcation between the development and the wetland and/or wetland buffer area.

[11]

A completed full environmental assessment form as required by the New York State Environmental Quality Review Act.

Any additional information as needed. Such additional information may include but is not limited to the study of flood, erosion or other hazards at the site; the effect of any protective measures that might be taken to reduce such hazards; and any other information deemed necessary to evaluate the proposed use in terms or the goals and standards hereof.

Procedure.

In the case of permits sought in conjunction with subdivision approval, the Planning Board shall hold a public hearing on the requested permit concurrently with the public hearing on preliminary subdivision plat approval. Public notice and notice to interested parties of the wetland permit hearing shall be provided along with the notice required by the Town Code for the hearing on preliminary subdivision plat approval. The Planning Board shall issue a final written decision on the wetland permit as part of the decision on final subdivision plat approval.

In the case of permits sought in conjunction with site plan approval, the Planning Board shall hold a public hearing on the requested permit concurrently with the public hearing on site plan approval. Public notice and notice to interested parties of the wetland permit hearing shall be provided along with the notice required by the Town Code for the hearing on site plan approval. The Planning Board shall issue a final written decision on the wetland permit as part of the decision on site plan approval.

In the case of all other permits, the Planning Board shall hold a public hearing within 30 days of its finding the application complete. Notice of said hearing and of the substance of the application shall be given by publication in the official newspaper of the Town at least 10 days before the date of such hearing. In addition to such published notice, the Planning Board shall cause such notice to be mailed at least 10 days before the hearing to all owners of property which lies within 500 feet of any lot line of the property for which the permit is sought and to such other persons as the Planning Board may deem advisable. The names of said owners shall be taken as they appear on the last completed tax roll of the Town. Provided that due notice shall have been published as above provided and that there shall have been substantial compliance with the remaining provisions of this subsection, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Planning Board in connection with the granting of a permit. Within 30 days of the close of the public hearing, the Planning Board shall render a written decision on the application.

[Amended 12-15-2015 by L.L. No. 5-2015]

Notice provisions. The deed, contract of sale and final plat of any land subdivided subsequent to the enactment hereof shall describe all wetlands, watercourses, water bodies and buffer areas on said land which are regulated by this chapter, and shall include a note on the deed, contract and final plat, respectively, that any construction within these areas requires a permit.

Notification of wetlands permit application.

[Added 12-15-2015 by L.L. No. 5-2015]

Every applicant that submits an application for a wetlands permit to the Planning Board must post one or more notification signs on the property which is the subject of said application within three days of acceptance of the application by the Planning Board and must maintain the posted sign(s) place until the Planning Board has rendered its final decision approving or denying said application. The sign(s) shall be erected not more than 10 feet from each boundary of the property that abuts a public road and must be conspicuous to the public. The bottom edge of each sign so erected shall be positioned no less than 14 inches and no more than 36 inches above the ground. In the event that the subject property abuts more than one road, additional signs will be posted facing each road on which the property abuts. If the sign's visibility is obscured by vegetation, the applicant must cut the vegetation to a degree sufficient to maintain clear visibility of the sign from the road. If the property does not abut a public road, one or more signs shall be posted in Town-approved locations that can readily be seen by the public. Any sign erected under this provision must be removed within 10 days after the Planning Board has rendered its final decision approving or denying said application.

In the event that an application shall be withdrawn or become inactive, the applicant shall remove the sign(s) within five business days of withdrawing the application or of receiving notice from the Planning Board that the application has been designated inactive. For the purposes of this section, any application which has not appeared on the Planning Board's agenda for six or more months shall be designated inactive. The Planning Board shall notify the applicant in writing that the application has become inactive and instruct the applicant to remove the sign(s) until such time as the application shall be reactivated. Once the application is reactivated, the sign(s) shall be posted within three days.

The Town of Ossining will supply the sign(s), and the initial cost will be included in the application fee. The applicant will be responsible for maintaining said sign(s) in good condition so as to be visible to and readable by the public. The applicant shall be responsible for replacing any sign(s) that is(are) damaged, destroyed, lost or stolen during the pendency of the application. A replacement fee will be charged for each sign that needs to be replaced. The amount of said replacement fee shall be determined from time to time by the Town Building Inspector.

Prior to the commencement of any public hearings or, if no public hearings are required, prior to the rendering of any decision disposing of any application, the applicant shall submit a sworn certification on a form provided by the Town, together with legible photographic evidence, to verify the placement and maintenance of the required sign(s). If the certification is not timely submitted, any scheduled public hearings shall be canceled, subject to rescheduling, and any dispositive action by the Planning Board shall be deferred until timely certification is submitted. In the event of repeated or continued noncompliance with these sign posting and certification requirements, the application may be dismissed at the discretion of the Planning Board.

§ 105-8 Standards and findings for permit decisions.

Consideration. In granting, denying or conditioning any permit, the approval authority shall consider all relevant facts and circumstances including but not limited to the following:

The environmental impact of the proposed action.

The alternatives to the proposed action, including the availability of preferable alternative locations on the subject parcel or on any other parcel under the control of the applicant.

The suitability or unsuitability of the proposed activity to the area for which it is proposed.

The effect of the proposed activity relative to protection or enhancement of the functions of wetlands and the benefits they provide which are set forth in § 105-1C hereof.

[Amended 12-15-2015 by L.L. No. 7-2015]

The availability of further technical improvements, safeguards or other mitigation measures that could feasibly be added to the plan or action.

The possibility of further avoiding reduction of the wetland's natural capacity to support desirable biological life, prevent flooding, supply water, control sedimentation and/or prevent erosion, assimilate wastes, facilitate drainage and provide recreation and open space.

Findings. Permits will be issued by the approval authority pursuant to this chapter only if the applicant demonstrates and the approval authority finds that:

The proposed regulated activity is consistent with the policy hereof to preserve, protect and conserve wetland functions and the benefits they provide, as set forth in § 105-1C hereof, by preventing to the maximum extent practicable the degradation and destruction of wetlands as balanced against private property rights.

[Amended 12-15-2015 by L.L. No. 7-2015]

The proposed regulated activity is compatible with the public health and welfare.

The proposed regulated activity cannot practicably be relocated on the site so as to eliminate or reduce the intrusion into the wetland, watercourse, water body and/or buffer area.

All proposed culverts and dams meet the guidelines of the New York Department of Environmental Conservation for the migration of aquatic wildlife, if applicable.

[Added 12-15-2015 by L.L. No. 7-2015]

Pipes installed to convey a watercourse shown on the USGS maps or classified by the New York State Department of Environmental Conservation as A, B or C will require culverts designed in accordance with the stream crossing guidelines document published by the New York State Department of Environmental Conservation.

[Added 12-15-2015 by L.L. No. 7-2015]

§ 105-9 Permits.

Permits issued pursuant to this chapter may contain conditions designed to assure the preservation and protection of affected wetlands, and compliance with the policy and provisions of this chapter.

Permits issued pursuant to this chapter shall be in written form and shall contain conditions including the following:

Work conducted under a permit shall be open to inspection at any time, including weekends and holidays, by the Planning Board, the Building Inspector and their designated representative(s).

The permit shall expire on a specified date.

The permit holder shall notify the Town Building and Planning Department of the date on which the work is to begin, at least five days in advance of such date.

The approval authority's permit shall be prominently displayed at the project site during the undertaking of the activities authorized by the permit.

Conditions may include but shall not be limited to the following:

Limitation on the total portion of any lot or the portion of the wetland on the lot that may be graded, filled or otherwise affected.

Setbacks for structures, fill and other activities from the wetland.

Modifications in project design to ensure continued water supply to the wetland and circulation of waters.

Replanting of wetland vegetation and construction of new wetland areas to replace damaged or destroyed areas.

Performance guarantee.

The approval authority may require that, prior to commencement of work under any permit issued pursuant to this chapter, the applicant shall post a performance guarantee in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit. The particular amount and the conditions of the performance guarantee shall be consistent with the purposes of this chapter. The performance guarantee shall remain in effect until the approval authority or its designated agent certifies in writing that the work has been completed in compliance with the terms of the permit and the performance guarantee is released by the approval authority, or until a substitute performance guarantee is provided. In the event of a breach of any condition of any permit, the approval authority may act to obtain and make appropriate use of the proceeds of the performance guarantee.

The approval authority shall set forth in writing in the file it keeps regarding a permit application its findings and reasons for imposing a performance guarantee pursuant to this section.

Expiration of permit.

All permits shall expire on completion of the acts specified therein and, unless otherwise indicated, shall be valid for a period of one year from the date of issue. No original permit granted pursuant to this chapter shall be valid for greater than a period of three years from the date of issue. The approval authority may extend the time in which the acts specified in the permit must be completed if, in its opinion, such extension is warranted by the particular circumstances involved. In the case of a permit where no work on the wetland(s) has been accomplished, extensions shall not exceed two additional periods of 90 days each. In this case, should a permittee fail to complete the acts specified in the permit prior to the expiration of the second ninety-day extension, at the discretion of the approval authority the original permit may become null and void and an application would then need to be made for a new permit. The request for a new permit shall follow the same form and procedure as the original application, except that the approval authority shall have the option of not holding a public hearing if the original intent of the permit is not altered or extended in any significant way.

In the case of a permit where the work on the wetland(s) is partially completed, the number and length of extensions shall be at the sole discretion of the approval authority.

A request for an extension of an original permit shall be made in writing to the approval authority at least 30 days prior to the expiration date of the original permit and each extension.

§ 105-10 Mitigation policy and plan requirements.

Mitigation policy. Mitigation shall be permitted as compensation only for unavoidable wetland, watercourse, water body and buffer area losses. For the purpose hereof, said losses are necessary and unavoidable only if there is no reasonable on-site alternative to the proposed activity, including a reasonable reduction in density or a revision of road, building, utilities and/or lot layout.

Mitigation plan.

Upon a determination pursuant to Subsection A immediately above that a loss of wetland, watercourse, water body or buffer area is necessary and unavoidable, the Planning Board shall, and the Building Inspector may, as approval authority, require the preparation of a mitigation plan which shall specify mitigation measures that replace and/or restore, to the greatest extent reasonably practical, the functions of the original wetland and/or buffer area in terms of type, ecological benefits, geographic location and setting, and size.

[Amended 12-15-2015 by L.L. No. 7-2015]

For the purposes of mitigation, on-site mitigation shall be the preferred approach; off-site mitigation shall be permitted only in cases where an on-site alternative is not possible.

Mitigation for intrusion into wetlands shall be such as to provide no overall net loss of wetlands in terms of ecological characteristics and function, similar geographic location and setting, and size. A greater than 1:1 replacement may be necessary in areas where there is a strong possibility of the failure of the viability of the replacement/restored wetlands. Mitigation for intrusion into buffer areas shall be such as to preserve the ecological characteristics and functions of the associated wetland.

Where off-site mitigation is proposed, it shall be within the same drainage basin affected by the development. In this regard, contribution to a Town-Board-adopted drainage basin and/or wetland improvement plan may be considered by the approval authority.

Mitigation plan requirements. Mitigation plans shall be designed to minimize impacts to wetlands, watercourses, water bodies and buffer areas. Said plans shall also provide for the preservation of remaining wetlands via the establishment of restrictive covenants or conservation easements.

[Amended 12-15-2015 by L.L. No. 7-2015]

Mitigation plans shall include baseline data as needed to adequately review the effectiveness of the plan.

The applicant shall monitor or shall cause to be monitored acts specified by the permit in order to determine whether the elements of the mitigation plan and permit conditions have been met and whether the wetland acreage created replaces the wetland acreage lost. The applicant shall submit written reports to the approval authority at a frequency to be determined by the approval authority addressing the progress of the work under the permit and the mitigation plan. The approval authority may contract with an expert in the area of wetlands, at the expense of the applicant, to assess the applicant's work and monitoring reports conducted under the permit and mitigation plan.

The requirements for monitoring shall be specified in the mitigation plan and shall include but not be limited to the following:

The time period over which compliance monitoring shall occur.

Field measurements to verify the size and location of the impacted wetland area and the restored/replacement wetland area.

The date of completion of the restoration/replacement.

All wetland replacement shall be implemented and approved by the approval authority or its designated representative before the proposed wetland intrusion unless an alternate construction sequence is accepted by the approval authority.

§ 105-11 Penalties for offenses.

Administrative sanctions.

Damages. Any person who undertakes any activity regulated by this chapter without a permit issued hereunder, or who violates, disobeys or disregards any provision of this chapter, shall be liable to the town for civil damages caused by such violation for every such violation. Each consecutive day of the violation will be considered a separate offense. Such civil damages may be recovered in an action brought by the municipality at the request and in the name of the approval authority in any court of competent jurisdiction.

Restitution. The Planning Board shall have the authority to direct the violator to restore the affected wetland, watercourse, water body or buffer area to its condition prior to violation, insofar as that is possible, within a reasonable time and under the supervision of the Planning Board or its designee. Further, the Planning Board shall have the authority to require an adequate performance guarantee in a form and amount deemed necessary by the Planning Board to ensure the restitution of the affected wetland, watercourse, water body or buffer area.

Stop-work order; revocation of permit. In the event that any person holding a permit issued pursuant to this chapter violates the terms of the permit, fails to comply with any of the conditions or limitations set forth in the permit, exceeds the scope of the activity as set forth in the application or operates so as to be materially detrimental to the public welfare or injurious to a wetland, watercourse, water body or buffer area, the approval authority may suspend or revoke the permit as follows:

Suspension of a permit shall be by a written stop-work order issued by the Building Inspector and delivered to the permittee or his agent or the person performing the work. The stop-work order shall be effective immediately, shall state the specific violations cited and shall state the conditions under which work may be resumed. A stop-work order shall have the effect of suspending all authorizations and permits granted by the town or any agency thereof. The stop-work order shall remain in effect until the approval authority is satisfied that the permittee has complied with all terms of the subject permit or until a final determination is made by the Planning Board as provided in Subsection A(3)(b) immediately below.

Public hearing; notice; determination.

No site development permit shall be permanently suspended or revoked until a public hearing is held by the Planning Board. Written notice of such hearing shall be served on the permittee, either personally or by registered mail, and shall state:

[a]

The grounds for complaint or reasons for suspension or revocation.

[b]

The time and place of the hearing to be held.