Town of Kent, NY Article VII Administration and Enforcement

§ 66-23 Construction inspection.

A. Erosion and sediment control inspection.

(1) The Town Stormwater Management Officer may require such inspections as necessary to determine compliance with this chapter and may either approve that portion of the work completed or notify the applicant wherein the work fails to comply with the requirements of this chapter and the stormwater pollution prevention plan (SWPPP) as approved. To obtain inspections, the applicant shall be required to notify the Town Stormwater Management Officer at least 48 hours before any of the following:

(a) Installation of erosion and sediment control measures (initial site assessment).

(b) Commencement of construction.

(c) Completion of site clearing.

(d) Completion of rough grading.

(e) Completion of final grading.

(f) Close of the construction season.

(g) Completion of final site stabilization (final site assessment).

(h) Successful establishment of landscaping in public areas.

(2) If any violations are found, the Stormwater Management Officer shall notify the applicant and developer in writing of the nature of the violation and the required corrective actions. No further work shall be conducted except for site stabilization until any violations are corrected and all work previously completed has received approval by the Stormwater Management Officer.

B. Stormwater management practice inspections.

(1) The Town Stormwater Management Officer, or the authorized representative of the SMO, is responsible for conducting inspections of stormwater management practices (SMPs). All applicants are required to submit as-built plans for any postconstruction stormwater management practices located on site after final construction is completed. The plan must show the final design specifications for all stormwater management facilities and must be certified by a NYS licensed professional engineer.

(2) Inspection programs shall be established on any reasonable basis, including but not limited to: routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; inspection of drainage basins or areas identified as higher-than-typical sources of sediment or other contaminants or pollutants; inspections of businesses or industries of a type associated with higher-than-usual discharges of contaminants or pollutants or with discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the SPDES stormwater permit; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to: reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in drainage control facilities; and evaluating the condition of drainage control facilities and other stormwater management practices.

(3) The Town Stormwater Management Officer may require monitoring and the submission of written reports from entities subject to this chapter as are necessary to determine compliance with this chapter.

C. Right-of-entry for inspection. When any new stormwater management facility is installed on private property or when any new connection is made between private property and the public storm water system, the landowner shall grant to the Town the right to enter the property at reasonable times and in a reasonable manner for the purpose of inspection as specified in § 66-23B(2).

§ 66-24 Performance guarantee; maintenance guarantee; recordkeeping.

A. Construction completion guarantee. In order to ensure the full and faithful completion of all land development activities related to compliance with all conditions set forth by the Town in its approval of the stormwater pollution prevention plan, the applicant or developer shall be required to provide, prior to construction, cash escrow, irrevocable letter of credit, or certified check drawn upon a national or state bank or other cash equivalent, which guarantees satisfactory completion of the project and names the Town as the beneficiary. The security shall be in an amount to be determined by the Town based on submission of final design plans, with reference to actual construction and landscaping costs. The performance guarantee shall remain in force until the applicant and/or developer is released from liability by the Town, provided that such period shall not be less than two years from the date of final acceptance or such other certification that the facility(ies) have been constructed in accordance with the approved plans and specifications and that a two-year inspection has been conducted and the facilities have been found to be acceptable to the Town. Per annum interest on cash escrow deposits shall be reinvested in the account until the applicant and/or developer is released from liability.

B. Maintenance guarantee.

(1) Where stormwater management and erosion and sediment control facilities are to be operated and maintained by the developer or by a corporation that owns or manages a commercial or industrial facility, the developer, prior to construction, may be required to provide the Town with an irrevocable letter of credit from an approved financial institution to ensure proper operation and maintenance of all stormwater management and erosion control facilities both during and after construction, and until the facilities are removed from operation.

(2) If the developer or landowner fails to properly operate and maintain stormwater management and erosion and sediment control facilities, the Town may draw upon the letter of credit to cover the costs of proper operation and maintenance, including engineering and inspection costs.

(3) Alternatively, if a letter of credit was not posted, the Town Board may, at its sole discretion, charge the reasonable and necessary costs of proper operation and maintenance, including engineering and inspection costs, against the real property by adding that charge to, and making it a part of, the next annual real property tax assessment roll of the Town. Such charges shall be levied and collected at the same time and in the same manner as Town-assessed taxes and shall be paid to the Town Comptroller, to be applied in reimbursing the fund from which the costs of proper operation and maintenance were paid. Prior to charging such assessments, the owner of the real property shall be provided written notice by certified mail, return receipt requested, at the last known address of record, of an opportunity to be heard and object before the Town Board to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing.

C. Recordkeeping. The Town may require entities subject to this chapter to maintain records demonstrating compliance with this chapter.

§ 66-25 Enforcement; penalties for offenses.

A. Notice of violation. When the Town determines that a land development activity is not being carried out in accordance with the requirements of this chapter, it may issue a written notice of violation to the landowner. The notice of violation shall contain:

(1) The name and address of the landowner, developer or applicant;

(2) The address, when available, or a description of the building, structure or land upon which the violation is occurring;

(3) A statement specifying the nature of the violation;

(4) A description of the remedial measures necessary to bring the land development activity into compliance with this chapter and a time schedule for the completion of such remedial action;

(5) A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;

(6) A statement that the determination of violation may be appealed to Town Board by filing a written notice of appeal within 15 days of service of notice of violation.

B. Stop-work orders. The Town may issue a stop-work order for violations of this chapter. Persons receiving a stop-work order shall be required to halt all land development activities, except those activities that directly remedy the violations leading to the stop-work order. The stop-work order shall be in effect until the Town confirms that the land development activity is in compliance and the violation has been satisfactorily addressed. Failure to address a stop-work order in a timely manner may result in civil, criminal, or monetary penalties in accordance with the enforcement measures authorized in this chapter.

C. Violations. Any land development activity that is commenced or is conducted contrary to this chapter may be restrained by injunction or otherwise abated in a manner provided by law.

D. Indemnification of Town. If the New York State Department of Environmental Conservation (DEC) shall serve a notice of violation upon the Town, bring an administrative complaint against the Town, and/or commence a civil suit against the Town due to a violation of SPDES General Permit for Stormwater Discharges from Municipal Separate Stormwater Sewer Systems GP-02-02, and such notice of violation, administrative complaint, or civil suit is a result of, due to, a consequence of, or the outcome of the actions of a person who has violated the provisions of this chapter, then said person shall indemnify the Town for any and all fines, damages or penalties imposed by the DEC upon the Town.

E. Penalties. In addition to or as an alternative to any penalty provided herein or by law, any person who violates the provisions of this chapter shall be guilty of a violation punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purposes of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.

F. Withholding of certificate of occupancy. If any building or land development activity is installed or conducted in violation of this chapter, the Stormwater Management Officer may prevent the occupancy of said building or land.

G. Restoration of lands. Any violator may be required to restore land to its undisturbed condition. In the event that restoration is not undertaken within a reasonable time after notice, the Town may take necessary corrective action, the cost of which shall become a lien upon the property until paid.

§ 66-26 Fees for services.

A. The Town may require any person undertaking land development activities regulated by this chapter to pay reasonable costs at prevailing rates for review of SWPPPs, inspections, or SMP maintenance performed by the Town or performed by private engineers, attorneys or other consultants for the Town.

B. The landowner and applicant/developer, if different, shall be jointly and severally responsible to reimburse the Town for funds expended to compensate for services rendered to the Town under this subsection. In the event of failure to reimburse the Town for such fees, the Town may seek recovery by action, in law or in equity, venued in a court of appropriate jurisdiction.