This chapter shall be known as and may be cited as the "Wetlands
and Waterways Law."
For the purposes of this chapter, the following terms and phrases
shall be given the meanings indicated herein:
AGRICULTURAL LANDS
Lands that have historically and continuously been used as
farmland as established prior to April 1976 and which maintain a continuous
agricultural use to present day.
ALTERATION OF VEGETATION
Shall include, but not be limited to, the removal from trees
of live limbs which originate more than six feet above the existing
ground elevation, topping (the cutting of the trunk of the tree before
its natural terminus), girdling and cutting, pruning of indigenous
emergent, herbaceous and woody vegetation in such a manner as to cause
the death of the plant or to significantly reduce its natural function
or benefit thereof to the ecosystem.
APPARENT HIGH WATER LINE
For the purpose of this code, the apparent high water shall
be defined as the approximate average monthly high water level for
a given body of water at a given location as determined by reference
to hydrogeological information concerning water levels, as identified
by direct measurement of the water level or wrack line, provided the
date and time of the measurement are provided, or as identified by
other appropriate tests.
APPARENT LOW WATER LINE
For the purpose of this code, the apparent low water shall
be defined as the approximate average monthly low water level for
a given body of water at a given location as determined by reference
to hydrogeological information concerning water levels, as identified
by direct measurement, provided the date and time of the measurement
are provided, or as identified by other appropriate tests.
APPLICANT
The owner, contract vendee or authorized agent of the owner
or contract vendee of the parcel of property that is the subject of
an application under this chapter.
AQUACULTURE
Controlled or partially controlled raising, breeding or growing,
planting of aquatic or marine plant or animal life in any marine or
aquatic hatchery or through on-bottom or off-bottom cultivation, for
human consumption and resource restoration, as permitted by the County
of Suffolk, NY State Fish and Wildlife Law (NYS ELC Article 11) and
other applicable federal, state, and local laws and regulations.
ARTIFICIAL WETLANDS
Any water body or wetland not part of a natural system with
an area of 300 square feet or more and created for the sole purpose
of recreation, aesthetics, biofiltration or stormwater management,
including but not limited to ponds, vegetated swales, rain gardens,
and the equivalent. Artificial wetlands will include the created water
body or wetlands and any natural wetlands that, because of the created
feature, become established within the area around the artificial
wetland. Artificial wetlands remain artificial wetlands until such
time that they become a sustainable ecosystem independent of anthropogenic
activities or structures as determined by the Director of the Division
of Environmental Protection. Artificial wetlands will not be included
in the prohibition of development described within the Town Code of
the Town of Brookhaven and therefore may be moved or altered by the
issuance of a wetlands and waterways permit.
[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]
BLUFF
Any bank or cliff with a precipitous or steeply sloped face
adjoining a beach or body of water occurring along the north shore
of the Town of Brookhaven with an elevation greater than 20 feet above
sea level.
BOAT
Any vessel propelled by oars, paddles, sail, or fuel-powered
engine which must by law be registered with New York State or documented
by the United States Coast Guard, including, but not limited to: power
boats, sailboats, personal watercraft, including jet skis and wet
bikes.
BUFFER ZONE
The area between a wetlands boundary and the closest permitted
location to such boundary for a regulated activity that is not to
be disturbed and left in its natural state except for the supplemental
planting of native vegetation and those activities approved by the
issuance of a wetlands and waterways permit.
BULKHEAD
A vertical structure constructed as a protective barrier
between a body of water and a waterfront property.
CATEGORY A PERMIT APPROVAL
A written permit, approved by the Town Board of the Town of Brookhaven, issued in response to an application to conduct a regulated activity as described in §
81-9 or issued in response to an appeal of a denial or an objection to the conditions of a permit issued by the Director of the Division of Environmental Protection.
CATEGORY B PERMIT APPROVAL
A written permit, approved by the Director of the Division of Environmental Protection, issued in response to an application to conduct a regulated activity described in §
81-4, Subsections
B and
C, in a wetland or within the jurisdictional area of a wetland.
CATWALK
An elevated walkway, usually built to gain access to a commercial
or residential dock, built at a fixed height above grade and which
is constructed landward of the apparent high water line.
COMMERCIAL DOCK
Any fixed or floating dock or extension of such, designed,
used and/or intended for use other than as a residential dock, as
defined in this chapter.
COMMISSIONER
The Commissioner of Planning, Environment and Land Management.
COMPLETED PROJECT
A project will be considered complete upon the issuance of
a certificate of occupancy, or the equivalent; upon initiation of
the project or action and its termination, or expiration of the wetlands
and waterways permit; or the use of the structure by the property
owner in a manner intended by its construction; whichever comes first.
[Added 5-25-2017 by L.L.
No. 15-2017, effective 6-7-2017]
DEVELOPED LAND
A parcel of land that contains residential and/or commercial
structures that have been issued certificates of occupancy or the
equivalent from the Chief Building Inspector of the Town of Brookhaven.
Land that contains structures constructed without valid building permits
or other approvals and/or which have not been issued a certificate
of occupancy or its equivalent and which do not qualify for a certificate
of existing use shall be considered to have no development.
DEVELOPMENT
The construction of a primary structure in accordance with
the Town of Brookhaven zoning code.
DIRECTOR
The Director of the Division of Environmental Protection
of the Town of Brookhaven or, when no Director exists, that person
appointed by the Commissioner to act as the administrator of the Wetlands
and Waterways Code.
[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]
DISCHARGE
The emission or release of any water, substance, or material
into a wetland or waterway, whether or not such substance causes pollution.
DOCK LENGTH
The distance as measured from the apparent low water line
to the seaward-most portion of the fixed or floating dock or the seaward-most
mooring pile, whichever distance is greater.
DREDGING
The removal or excavation of any sand, gravel, aggregate,
soil, mud, or sediment from the land lying beneath any waterway or
contiguous to any waterway.
EDGE OF A WATERWAY
For waters under tidal influence, the apparent high water
line will be considered the landward limit of a waterway. For waters
not under tidal influence, the edge will be the maximum landward limit
of the surface water as determined by either field survey and/or historical
information.
FIXED DOCK
An elevated walkway which is constructed at a fixed height
above grade and which extends seaward from the apparent high water
line.
FLOATING DOCK
Any structure, raft or floating platform which is designed
to float upon the surface of a water body and is secured in place
by poles, pilings, anchors, or any other type of mooring system that
provides access to the water. A floating dock shall include the float
itself, any pilings or mooring system designed to keep the dock at
a fixed point and the ramp, which spans the distance from a fixed
structure (fixed dock or bulkhead) or shoreline to the floating dock.
FLOATING HOME
Any vessel in fact used, designed or occupied as a dwelling
unit, business office or source of any occupation or for any private
or social club of whatsoever nature, including but not limited to
a structure constructed upon a barge primarily immobile and out of
navigation which functions substantially as a land structure while
the same is moored or docked within the municipal limits of the Town
of Brookhaven, whether such vessel is self-propelled or not.
FRESHWATER WETLANDS
The lands and waters in the Town of Brookhaven including
but not limited to those lands and waters as shown on the Freshwater
Wetlands Map prepared by or for the State of New York pursuant to
§ 24-0301 of the New York State Freshwater Wetlands Act
and filed with the Suffolk County Clerk on or after May 26, 1993,
and entitled "New York State Freshwater Wetlands Maps" or any future
revisions thereof, which contain a significant number of the following:
A.
Lands and submerged lands, commonly called marshes, swamps,
sloughs, bogs, flats, stream banks, riverine systems, and the like,
supporting aquatic or semiaquatic vegetation of the following vegetative
types:
(1)
Wetland trees which depend upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage
over other trees, including, among others: red maple (Acer rubrum),
willows (Salix spp.), swamp white oak (Quercus bicolor), black gum
(Nyssa sylvatica) and sweet gum (Liquidambar styraciflua), Atlantic
white cedar (Chamaecyparis thyoides), black ash (Fraxinus nigra),
green ash (Fraxinus pennsylvanica), river birch (Betula nigra), and
yellow birch (Betula alleghanensis).
(2)
Wetland shrubs which depend upon seasonal or permanent flooding
or sufficiently waterlogged soils to give them a competitive advantage
over other shrubs, including, among others: alder (Alnus spp.), buttonbush
(Cephalanthus occidentalis), sweet pepperbush (Clethra alnifolia),
swamp honeysuckle (Rhododendron viscosum), spicebush (Lindera benzoin),
sheep laurel (Kalma angustifolia), highbush blueberry (Vaccinium corymbosum),
crimson eyed rose mallow (Hibiscus moscheutos), winterberry (Ilex
verticillata), arrow-wood (Viburnum dentatum), common elderberry (Sambucus
canadensis), inkberry (Ilex glabra), wild-raisin (Viburnum opulus),
serviceberry (Amelanchier spp.), red chokeberry (Aronia arbutifolia),
swamp rose (Rosa palustris) and witch-hazel (Hamamelis virginiana).
(3)
Emergent vegetation, including, among others: cattails (Typha
spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.),
arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed
(Phragmites australis), wild rice (Zizania aquatica), bur reeds (Sparganium
spp.), swamp loosestrife (Decodon verticillatus) and water plantain
(Alisma plantago-aquatica), sweet flag (Acorus calamus), skunk cabbage
(Symplocarpus foetidus), jewelweed (Impatiens spp.), blue flag (Iris
versicolor), marsh marigold (Caltha palustris), horsetails (Equisetum
spp.), swamp milkweed (Asclepias incarnata), and yellow flag (Iris
pseudacorus).
(4)
Rooted, floating leaved vegetation, including, among others:
water lily (Nymphaea odorata), water shield (Brasenia schreberi) and
spatterdock (Nuphar advena).
(5)
Free-floating vegetation, including, among others: duckweed
(Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia
spp.).
(6)
Wet meadow vegetation which depends upon seasonal or permanent
flooding or sufficiently waterlogged soils to give it a competitive
advantage over other open land vegetation, including, among others:
sedges (Carex and Cyperus spp.), rushes (Juncus spp.), cattails (Typha
spp.), rice cutgrass (Leersia oryzoides), reed canary grass (Phalaris
arundinacea), purple loosestrife (Lythrum salicaria), spotted joe-pye
weed (Eupatorium maculatum), beggar ticks (Bidens spp.), cinnamon
fern (Osmunda cinnamomea), marsh fern (Dryopteris thelypteris), ostrich
fern (Pteretis pennsylvanica), royal fern (Osmunda regalis), sensitive
fern (Onoclea sensibilis), spike rushes (Eleocharis spp.), and switch
grass (Panicum virgatum).
(7)
Bog mat vegetation, including, among others: sphagnum mosses
(Sphagnum spp.), pitcher plant (Sarracenia purpurea), cranberries
(Vaccinium macrocarpon and V. oxycoccos), sundew (Drosera rotundifolia),
and leatherleaf (Chamaedaphne calyculata).
(8)
Submergent vegetation, including, among others: pondweeds (Potamogeton
spp.), naiad family (Najas spp.), Bladderworts (Utricularia spp.),
wild celery (Valisneria americana), coontail (Ceratophyllum demursum),
water milfoils (Myriophyllum spp.), muskgrass (Chara), stonewort (Nitella
spp.), water weeds (Elodea spp.) and water smartweed (Polygonum amphibium).
B.
Lands and submerged lands containing remnants of any vegetation
that is not aquatic or semiaquatic that has died because of wet conditions
over a sufficiently long period, and provided further that such conditions
can be expected to persist indefinitely, barring human intervention.
C.
Lands underwater and surface waters substantially enclosed by aquatic or semiaquatic vegetation as set forth herein in Subsection
A above and/or dead vegetation as set forth in Subsection
B above.
D.
Those geologic formations commonly known as "perched ponds"
or vernal ponds, a seasonally flooded depression void of fish.
E.
Land forms in which the predominant type of soils are considered
hydric soils.
F.
Artificial wetlands with an area greater than or equal to 300
square feet.
G.
The waters overlying the areas set forth in Subsections
A,
B,
D,
E, and
F above.
HYDRIC SOILS
Soils that are formed under conditions of saturation, flooding,
or ponding long enough during the growing season to develop anaerobic
conditions in the upper part of the soil profile.
INCOMPATIBLE ACTIVITIES
Any regulated activity described in §
81-7 or a regulated activity that is not compatible with the standards of approval or with the type of wetland involved or with the preservation, protection or enhancement of the present and potential values of the waterway, wetland or adjacent area.
[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]
INNOVATIVE AND ALTERNATIVE ON-SITE WASTEWATER TREATMENT SYSTEM
(IAOWTS)
An on-site wastewater treatment system that discharges into
the ground no more than 19 milligrams of nitrogen per liter of effluent
(19 mg/L), or the lowest possible level as approved by the Suffolk
County Department of Health Services (SCDHS), on average as measured
over 12 samples taken one per month for a year.
[Added 5-25-2017 by L.L.
No. 15-2017, effective 6-7-2017]
JURISDICTIONAL AREA
That area that shall be subject to regulations under this
chapter of the Town Code and shall include all wetlands and waterways
of the Town of Brookhaven and the land area that extends 150 feet
landward of and parallel to the wetland boundary or the edge of the
waterway with the exception of an artificial wetlands, where the jurisdictional
area shall not extend beyond 25 feet of the limit of the artificial
wetland.
LANDS UNDERWATER
Those lands lying beneath or subject to predictable or regular
immersion by fresh, brackish or saline waters.
MAINTENANCE AND REPAIR
The customary, usual and normal activity to restore the sound
and good state of a structure after normal decay or degradation from
normal use or exposure to the elements. This includes the routine
maintenance necessary from time to time to keep a structure in a state
of good repair, including, but not limited to: the incidental replacement
of decking lumber for a dock, catwalk, deck or walkway; renovations
which do not require a building permit, increase the habitable floor
area of an existing structure, or replace structural supports that
are anchored or installed firmly into the ground or provide load-bearing
support for decking; painting of primary and accessory structures;
lawn maintenance activities, including, but not limited to, the mowing
of turf grasses, the maintenance of existing landscaping, the mulching
of beds or the planting of landscape vegetation within an existing
landscaped area and outside of an established buffer zone (if applicable),
or the top dressing of lawn areas made up of turf grasses with topsoil,
provided no more than two inches of soil are involved and no wetland
vegetation is covered.
MAINTENANCE DREDGING
Any dredging action which occurs in a location where dredging
has been historically performed to maintain navigational access or
which occurs within 10 feet of any bulkhead.
MAJOR LAND DIVISION
The division of a parcel of land that requires the installation
of a new Town roadway and/or proposes to create more than four lots.
MINOR LAND DIVISION
The division of a parcel of land that does not require the
installation of a new Town roadway and proposes to create no more
than four lots.
MITIGATION MEASURES
Those measures used to offset impacts associated with the
erection of a structure, clearing of natural vegetation, or the excavation,
filling or grading of soils within the jurisdictional area of a wetland.
NAVIGABLE WATERWAY
Any water body that maintains a minimum water depth of three
feet as measured at the lowest part of the tidal cycle from a point
of origin and then continuously to open water. Channels that undergo
routine maintenance dredging shall be considered to be part of a navigable
waterway.
NONSTRUCTURAL SHORE PROTECTION DEVICE
Any nonpermanent device, including but not limited to choir
logs, jute matting, sacrificial dunes, and vegetative plantings installed
to protect upland property from wave action.
PERSON
Any corporation, firm, partnership, association, trust, estate
or one or more individuals and any unit of government or agency or
subdivision thereof.
POLLUTION
The presence in the environment of man-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to human, plant, marine or freshwater life, wildlife
or other animal life, or to property; or unreasonably interferes with
the comfortable enjoyment of life and property.
POND
A shallow inland body of standing water that exists either
permanently or seasonally.
PORT JEFFERSON HARBOR COMPLEX
The waters and lands underwater of Port Jefferson Harbor,
Setauket Harbor, Little Bay, the Narrows, Conscience Bay and all tributaries
to and embayments thereof.
PRACTICABLE ALTERNATIVE
An alternative which is both available to the applicant and
capable of fulfilling the overall purpose of the project. "Available
and capable of being done" shall mean that the alternative is feasible,
in terms of reasonable costs, existing technology and best available
measures (i.e., most up-to-date technology or the best designs, measures
or engineering practices that have been developed or are commercially
available), proposed use and project purpose. "Project purposes" shall
be defined generally (e.g., construction of a single-family home).
PROJECT PROPERTY
The property that is the subject of a wetlands and waterways
permit and any adjacent properties under common ownership.
RESIDENTIAL DOCK
Any fixed dock and/or floating dock designed or constructed
as a continuous unit to provide access to the surface waters from
a lot that is zoned for residential use. The term "dock" shall include
all associated structures such as ramps and mooring piles.
RESIDENTIAL HOUSEBOAT
A vessel not designed primarily for residential dwelling
units, designed primarily for pleasure craft, recreation and for independent
navigation and not considered a floating home, in accordance with
the definition set forth above, and which is being used for residential
purposes.
RETAINING WALL
A vertical structure constructed as a protective barrier
between two land areas of different elevations.
RIPARIAN RIGHT
The right of a waterfront property owner to access the adjoining
waterway by the installation of a dock or other means, provided the
necessary permits are issued by the Town of Brookhaven. Access to
a water body through a deeded right-of-way or easement across a waterfront
property does not constitute a riparian right for a non-waterfront
lot. The minimum width necessary for a property to have a riparian
right, as measured along a straight line parallel to the shoreline
between the property boundaries perpendicular to the shoreline, is
44 feet.
STRUCTURAL SHORE PROTECTION DEVICE
Any permanent device, including but not limited to a bulkhead,
gabion, revetment, and riprap installed to protect upland property
from wave action.
STRUCTURE
Anything constructed or erected which requires location in
or upon the ground or attached to something having location in or
upon the ground. The word "structure" shall be construed as though
followed by words "or part thereof."
TIDAL WETLANDS
The lands and waters in the Town of Brookhaven (including
but not limited to those lands and waters in the Town which are included
in the inventory of tidal wetlands prepared by or for the State of
New York and filed with the Suffolk County Clerk as of September 28,
1982, last revised November 16, 1982, and entitled "Tidal Wetlands
Maps") which include a significant number of the following:
A.
Those areas which border on or lie beneath tidal waters, such
as but not limited to banks, bogs, salt marshes, swamps, meadows,
flats or other low lands subject to tidal action, including those
areas now or formerly connected to tidal waters.
B.
All banks, bogs, meadows, flats and tidal marshes subject to
such tides and upon which grow or may grow some of but not limited
to the following: salt meadow grass (Spartina patens), saltgrass (Distichlis
spicata), black grass (Juncus gerardi), saltworts (Salsola spp.),
sea lavendar (Limonium carolinianum), glassworts (Salicornia spp.),
big cordgrass (Spartina cynosuroides), prairie cordgrass (Spartina
pectinata), marsh elder (Iva frutescens), sea-blite (Suaeda maritima),
groundsel-tree (Baccharis halimifolia), crimson-eyed rose mallow (Hibiscus
palustris), seaside goldenrod (Solidago sempervirens) and the intertidal
zone including salt marsh cordgrass (Spartina alterniflora).
C.
The Common Reed (Phragmites australis) shall be considered a
tidal wetlands indicator when found with other tidal wetlands indicators
in hydric soils.
D.
Those areas under tidal influence that contain hydric soils.
UNDEVELOPED LAND
A parcel of land that does not contain residential and/or
commercial structures that have been issued certificates of occupancy
or the equivalent from the Chief Building Inspector of the Town of
Brookhaven. Land that contains structures constructed without valid
building permits or other approvals and/or which have not been issued
a certificate of occupancy or the equivalent and which do not qualify
for a certificate of existing use shall be considered to be undeveloped.
WATERFRONT PROPERTY
A property in which the location of the apparent high water
line intersects at least one property boundary that borders a waterway,
thus providing the owner of such property riparian rights.
WATERWAY
Any body of water commonly known as streams, rivers, creeks,
lakes, ponds, estuaries, bays, harbors, oceans, and the like. A waterway
includes those areas defined as lands underwater.
WETLAND BOUNDARY
The landward limit of wetlands as specified in the definitions
of "freshwater wetlands" and "tidal wetlands" above.
WETLANDS
Those areas defined in this chapter as tidal or freshwater
wetlands, including all waterways.
WETLANDS AND WATERWAYS PERMIT
That form of written Town approval required to conduct a
regulated activity as specified under this chapter, hereinafter referred
to as a "permit."
WIDTH OF A WATERWAY
The shortest linear distance in feet as measured at the point
of construction for a proposed or existing structure from the apparent
low water line to the apparent low water line on the opposite shoreline.
WORK RELEASE
A written permit, approved by the Director of the Division of Environmental Protection or the designee of the Director, issued in response to an application to conduct a regulated activity described in §
81-4, Subsections
B and
C, in a wetland or within the jurisdictional area of a wetland and which conforms to the issuance standards described in §
81-8.
[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017; 8-10-2017 by L.L. No. 21-2017, effective 8-18-2017]
The following activities shall not require the issuance of a
wetlands and waterways permit:
A. Any
activity that occurs within the boundaries of an incorporated village,
with the exception of those regulated activities that occur upon Town-owned
upland or underwater land;
B. Fishing,
hunting and related activities. The deposition or removal of the natural
products of lands under water, surface waters, tidal wetlands or freshwater
wetlands, by recreational or commercial fishing, shellfishing, hunting
or trapping, where otherwise legally permitted and regulated;
C. Public
health activities of the Suffolk County Department of Public Works,
including mosquito control activities that require the physical change
to the wetlands;
D. Repair
and maintenance of existing roadways and bridges that do not require
approvals of state and federal agencies, undertaken by the Suffolk
County Department of Public Works, the New York State Department of
Transportation or the Town of Brookhaven Highway Department;
E. Maintenance and repair activities;
F. The finishing of basements, cellars, and/or the conversion of an
attached garage into living area;
G. Any interior construction or renovation (other than the finishing
of basements, cellars, and/or the conversion of an attached garage
into living area), exterior renovation, or repair of an existing residential
or commercial structure which does not increase the existing footprint
and/or habitable living area for a residential structure, or does
not increase the existing footprint or floor area of a commercial
structure;
H. Any exterior modification, renovation, or repair of an existing residential
or commercial structure which does not increase the existing footprint
and/or habitable living area for a residential structure or increase
the existing footprint or floor area for a commercial structure;
I. Operation and maintenance of existing dams, sluices, culverts or
other water-control structures or devices which legally existed on
the effective date of this chapter by the Suffolk County, the New
York State Department of Transportation or the Town of Brookhaven
Highway Department;
J. Conservation, preservation or ecologically sound management activities
relating to soil, water, vegetation, fish, shellfish and wildlife,
undertaken by federal, state and local governments or subdivisions
thereof;
K. Fences. The erection of a fence shall be excluded from the regulated
activities requiring a permit herein, provided the following apply:
(1) The fence is elevated six inches above the elevation of the ground
in all areas identified as wetlands, within 100 feet of wetlands,
or designated as a buffer area as per the issuance of a permit or
approval from the Town of Brookhaven;
(2) The fence is located landward of the edge of a waterway;
(3) The fence conforms to all requirements of Chapter
85; and
(4) No clearing of trees and only the minimal disturbance of native shrubs
and emergents will take place during the installation.
L. The selective clearing of natural vegetation by the use of hand-held
tools to facilitate the surveying or inspection process as required
by federal, state and local agencies shall be excluded from the regulated
activities requiring a permit, provided:
(1) The clearing is necessary for the preparation of a survey required
for the submission of a wetlands and waterways permit application
to the Division of Environmental Protection and the establishment
of the paths is necessary for access to the site;
(2) All clearing is completed by hand-held tools;
(3) No trees are removed from the wetland or jurisdictional area;
(4) No wetlands are disturbed unless specifically requested in writing
by authorized individuals of the Division of Environmental Protection;
(5) No path is more than three feet in width; and
(6) No more than three paths are cut per property or as directed by the
Division of Environmental Protection.
M. Selective clearing activities completed either by hand or machine
and approved as part of a test hole permit issued by the Town of Brookhaven's
Division of Environmental Protection or Division of Planning;
N. The roof-mounted installation of any energy-generating device such
as solar panels (photovoltaic cells), or passive energy-saving devices
such as solar hot water heaters. The installation of ground-secured
systems shall be exempt when such systems are installed at a location:
(1) Greater than 50 feet from a wetland or a waterway; and
(2) Where no clearing of natural vegetation, grading of existing soils
is required to complete the installation.
O. The continued tilling or cultivation of existing agricultural lands;
P. The filling or removal of an artificial pond having an area less
than 300 square feet within a residential property and located outside
of the jurisdictional area of wetlands;
Q. The installation, repair, or replacement of: an outside shower and/or
shower enclosure, a freestanding hot tub placed upon a previously
approved deck or patio, an emergency generator placed within 10 feet
of the primary residential structure and not within an established
buffer area, an air conditioning unit placed within 10 feet of the
primary residential structure and not within an established buffer
area, including the concrete pads upon which the air conditioning
units and generators are placed, and the installation of cellar or
basement entrances; and
R. Projects solely limited to the installation of an I/A OWTS within
the existing cleared area of the subject property.
[Amended 1-22-2013 by L.L. No. 4-2013, effective 2-6-2013]
A. The
following activities are incompatible with the standards for approval:
(1) Any activity that would cause or allow the filling or excavation
of a tidal or freshwater wetland or within a waterway except for applications
to dredge an existing waterway or create wetland habitat.
(2) Clearing of natural vegetation, the excavation and/or grading of
soils within 25 feet of the landward boundary of a tidal or freshwater
wetland or water body.
(3) Any action that would violate the condition(s) of a covenanted buffer
zone or a buffer zone established by conditions of a permit or approval.
(4) Any proposed new residential structure and any additions to an existing residential structure, land divisions and subdivisions, new commercial structures or any additions made to an existing commercial structure, residential and commercial docks, and/or shore protection devices that do not conform to the standards for approval described in §
81-14.
(5) The construction of private structural shore protection devices on
Town-owned upland or lands underwater unless previously approved through
an encroachment agreement or its equivalent with the Town of Brookhaven.
(6) The construction of any structure, other than docks, structural and
nonstructural shore protection devices, and the installation of pilings,
dolphins or the like; or the installation of any fence seaward of
the apparent high watermark of any shoreline.
(7) Regulated activities initiated or completed without the issuance
of a wetlands and waterways permit may be deemed an incompatible activity
if the offending structure or activity fails to comply with the standards
set forth by § 81-14.A through E or if the Director or his
designee makes a determination that the offending action will cause,
caused or continues to cause a significant impairment to a wetland,
waterway or jurisdictional area.
(8) Construction of a new bulkhead when:
[Added 5-25-2017 by L.L.
No. 15-2017, effective 6-7-2017]
(a) No
existing bulkhead is located within 200 feet of either side of the
proposed bulkhead. In the event that one side of the proposed bulkhead
is located within 200 feet of another and the other side is not bulkheaded
within 400 feet, the proposed bulkhead will be considered incompatible;
or
(b) The
bulkhead does not conform to the standards of approval.
B. The
following activities shall be prohibited by this code:
(1) The construction of new primary and accessory structures, the clearing
of natural vegetation, and the application of fertilizers, pesticides
and herbicides within 20 feet of the landward edge of all wetlands
that occur along the Carmans River.
The following activities may, at the discretion of the Director
or the designee of the Director, be deemed exempt from the Category
A or Category B permit process and be undertaken upon the issuance
of a work release subject to limiting conditions and/or mitigation
measures:
A. Emergency
work which is deemed to be immediately necessary in order to protect
public health and/or safety or to prevent significant damage to personal
or real property;
B. Activities
located within the jurisdictional area of a tidal or freshwater wetland
or waterways that conform to the standards for approval and do not
significantly impinge or impair the adjoining wetland or waterway
or their function, including, but not limited to:
(1) A subdivision or land division that does not exceed the yield calculations of the Wetlands Overlay District (Chapter
85, §
85-621), and which, through the design of the yield, preliminary and/or final subdivision or land division map or survey, will maintain a structural setback (excluding docks, retaining walls, bulkheads, and access walks) from the wetland boundary a distance greater than 120 feet, and will cause no disturbance to the soils or vegetation within 100 feet of the wetland boundary;
[Amended 5-6-2014 by L.L. No. 8-2014, effective 5-22-2014]
(2) A site plan which, through the phases of design, will maintain a
structural setback (excluding docks, retaining walls, bulkhead, and
access walks) from the limit of the wetland boundary a distance greater
than 120 feet, and will cause no disturbance to the soils or vegetation
within 100 feet of the wetland boundary;
(3) The construction of a new commercial or residential structure with
a structural setback from the wetland boundary a distance greater
than 120 feet, and the action of construction will cause no disturbance
to the soils or vegetation within 100 feet of the wetland boundary;
(4) The construction in kind and in place of an existing commercial or
residential structure with a valid certificate of occupancy or the
equivalent;
(5) The addition to an existing commercial or residential structure with
a valid certificate of occupancy or the equivalent of less than 10%
of the existing floor area that: maintains a setback from the wetlands
boundary of 75 feet or the existing setback, whichever is less, involves
no or minimal removal of indigenous vegetation, shall not cause any
construction within a wetland or waterway, and which will not impair
local groundwater or surface water quality;
(6) The construction of accessory structures or parts thereof and nonstructural
activities (filling, excavating, etc.) that involve no or minimal
removal of indigenous vegetation, do not cause any construction within
a wetlands or a waterway, and which will not impair local groundwater
or surface water quality;
(7) Any action upon or within the jurisdictional area of an artificial
wetland, provided that a management plan is on file with the Division
of Environmental Protection and the proposed action preserves the
design function of the artificial wetland; and
(8) Minor removal or pruning of wetlands vegetation or natural vegetation
within an established buffer area or jurisdictional area to gain access
to a waterway, provided such access path does not exceed four feet
in width.
(9) The alteration, maintenance, dredging, or any activity on or within
25 feet of an artificial wetlands that has an approved management
plan and where the proposed activity is included as an acceptable
management practice within the management plan.
[Added 5-25-2017 by L.L.
No. 15-2017, effective 6-7-2017]
C. The construction, repair or replacement of a primary or accessory
structures or parts thereof which is necessitated as a result of an
unusual storm, ice event or other catastrophic event, provided:
(1) An application is received by the Division of Environmental Protection
within 60 days of the event;
(2) The applicant provides proof that the structure previously existed
and that the structure's destruction was a direct result of the
storm or ice event or other catastrophic event; and
(3) That the structure had previously been issued a wetlands and waterways permit under Chapter
81 or a certificate of occupancy under Chapter
85 of the Town Code; and
D. The installation of a nonstructural shoreline protection device;
and
E. Structures or activities subject to regulation and initiated or completed without the issuance of a wetlands and waterways permit may, at the discretion of the Director or the designee of the Director, be issued a work release subject to limiting conditions and mitigation measures. The Director may also pursue civil and criminal penalties as set forth in §
81-26.
The following projects shall be required to receive a Category
A permit:
A. Appeals
of decisions issued by the Director of the Division of Environmental
Protection.
B. New residential construction on undeveloped land that fails to maintain
a natural buffer zone of 25 feet and/or request construction of a
primary structure within 50 feet of a tidal or freshwater wetland
or waterway.
C. New commercial construction on undeveloped land that fails to maintain
a natural buffer zone of 25 feet and/or request construction of a
primary structure within 50 feet of a tidal or freshwater wetland
or waterway.
The Town Board, based upon the information received at the public
hearing, any written comments regarding the proposed action received
by the Town Clerk or the Division of Environmental Protection during
the public comment period, and the recommendations of the Director,
will establish the standards for individual approval for all Category
A permit applications.
The Town Board shall reserve the right to require an application
fee for all permit applications as well as a permit or license fee
for any operations or uses permitted pursuant to this chapter. Such
fees shall be collected by the Division of Environmental Protection.
A permit approved by the Town of Brookhaven does not relieve
the applicant of the necessity to obtain authorization or other permits
from other agencies, which have jurisdiction over the proposed project.
An applicant may appeal a decision by the Town Board regarding
a wetlands or waterways permit pursuant to Article 78 of the Civil
Practice Law and Rules or any other remedies available by law.
[Added 11-22-2011 by L.L. No. 23-2011, effective 12-6-2011]
A. Whenever the Director of the Division of Environmental Protection or the designee of the Director has reasonable grounds to believe that a regulated activity as described in §
81-4 of this code is being performed: (i) in violation of the provisions of the applicable codes or regulations; or (ii) not in conformity with the provision of an application, plans, specifications or other documents upon the basis of which a permit was issued; he shall notify the owner of the property or the owner's agent or the person performing the work to suspend all work, and any such persons shall forthwith stop such work and suspend all regulated activities until the stop-work order has been rescinded. Such order and notice shall be in writing, shall state the conditions under which the work may be resumed and may be served upon a person to whom it is directed either by delivering it personally to him or by posting the same upon a conspicuous portion of the primary structure, or the project site, or the structure under construction, and sending a copy of the same by certified mail to the property owner.
B. It shall be a violation to allow or cause to be continued a regulated
activity on the subject premises after the issuance of a stop-work
order pursuant to this chapter.
C. A stop-work order may be rescinded only by the Director or his designee
upon evidence of compliance with this chapter.