[HISTORY: Adopted by the Town Board of the
Town of Wappinger 6-27-2005 by L.L. No. 7-2005.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Building construction — See Ch. 85.
Environmental quality review — See
Ch. 117.
Flood damage prevention — See Ch. 133.
Soil erosion and sediment control — See Ch. 206.
Subdivision of land — See Ch. 217.
Zoning — See Ch. 240.
[1]
Editor's Note: This local law also repealed
former Ch. 137, Freshwater Wetlands, adopted 8-9-1976 by L.L. No.
1-1976, as amended.
This chapter shall be known as the "Freshwater
Wetland, Waterbody and Watercourse Protection Law of the Town of Wappinger."
It is declared to be the public policy of the
Town of Wappinger to preserve, protect and conserve freshwater wetlands,
waterbodies and watercourses and the benefits derived therefrom and
to prevent the despoliation and destruction of such freshwater resources
by regulating activities with potential impacts to such resources
in order to secure their natural benefits consistent with the general
health, safety and welfare of the public, and with the beneficial
economic, social and agricultural development of the Town of Wappinger.
It is further declared to be the policy of the Town of Wappinger to
exercise its authority pursuant to Article 24 of the State Environmental
Conservation Law.
Pursuant to the above-stated declaration of
policy, the Town Board makes the following specific findings:
A.
Growth and development have placed increasing demands
upon natural resources that may result, and in certain instances have
resulted, in the encroachment, despoliation, pollution and/or elimination
of wetlands and their buffer areas.
B.
The loss of freshwater wetlands deprives the people
of the Town of Wappinger of some or all of the many benefits to be
derived from wetlands, including but not limited to:
(1)
Flood and storm control by the hydrologic absorption
and storage capacity of freshwater wetlands.
(2)
Wildlife habitat by providing breeding, nesting and
feeding grounds and cover for many forms of wildlife, wildfowl and
shorebirds, including migratory wildfowl and rare species.
(3)
Protection of subsurface water resources and provision
for valuable watersheds and recharging groundwater supplies.
(4)
Recreation by providing areas for hunting, bird watching,
photography and other uses.
(5)
Pollution treatment by serving as biological and chemical
oxidation basins.
(6)
Erosion control by serving as sedimentation areas
and filtering basins, absorbing silt and organic matter.
(7)
Education and scientific research by providing readily
accessible outdoor biophysical laboratories, living classrooms and
training and education resources.
(8)
Open space and aesthetic appreciation.
(9)
Sources of nutrients in freshwater food cycles and
nursery grounds and sanctuaries for freshwater fish.
C.
The values and functions of a wetland vary considerably
from one wetland to another and are not necessarily dependent on the
size of the wetland or the size of the lot on which it is located.
D.
Consideration should be given to the functional significance
of a wetland involved in any particular application or proceeding,
as wetlands vary in their importance and value. In regulating activities
in wetlands and wetland buffers the approval authority should consider
and reflect the relative significance or importance of any particular
wetland and the potential impact of a proposed project on the abovementioned
values and functions and those set forth in § 24-0103 of
the NYS Environmental Conservation Law.
E.
Regulation of freshwater wetlands, in accordance with the agricultural exemption established in § 137-6, is consistent with the legitimate interests of farmers and other landowners to graze and water livestock, make reasonable use of water resources, harvest natural products of the wetlands, selectively cut timber and otherwise engage in the use of land for agricultural production.
It is the intent of the Town of Wappinger through
this chapter to:
A.
Control and regulate, without necessarily prohibiting,
those activities, as defined herein, which may impact wetlands, waterbodies
and watercourses and their associated buffers within the Town, thus
insuring that the benefits found to be provided by them will not be
lost or impaired.
B.
Minimize the administrative burden and costs to property
owners and/or applicants.
C.
Allow reasonable use of land consistent with responsible
land management, and to conserve and protect wetlands, waterbodies,
and watercourses and their buffer areas to the extent reasonably practicable
consistent with this objective.
D.
Incorporate wetland, waterbody, and watercourse protection
into the Town's land use development regulations and approval procedures.
E.
Protect, preserve and enhance the values and functions
of freshwater wetlands in the Town of Wappinger and secure the positive
environmental benefits accruing therefrom.
F.
Achieve no overall net loss of the Town's remaining
wetland resources, including wetland buffer areas.
G.
Protect wetlands which are not currently protected
under state or federal regulations.
H.
Enact this chapter pursuant to the above referenced
law and any and all applicable laws, rules, and regulations of the
State of New York, and nothing contained herein shall be deemed to
conflict with any such laws, rules or regulations.
I.
Place the burden of proof on the applicant seeking
a wetlands permit, for identifying whether his/her actions impact
a wetland, waterbody or watercourse or associated buffer.
The following terms, phrases, words and their
derivatives shall have the meanings given herein:
Any land in the Town of Wappinger immediately adjacent to
a freshwater wetland lying within 100 feet, measured horizontally,
of the boundary of a freshwater wetland. (See "buffer.")
Any person who files an application for any permit issued
by the agency pursuant to this chapter, and includes the agent of
the owner or a contract vendee.
The municipal or administrative board or public official
or municipal employee empowered to process and grant or deny permits
under this chapter. When a wetlands permit is sought in conjunction
with a site plan, subdivision and/or special permit, the Planning
Board shall assume the role of the approval authority. In all other
cases, the approval authority shall be the Building Inspector or Municipal
Code Enforcement Officer.
[Amended 1-28-2013 by L.L. No. 2-2013]
The outer limit of a freshwater wetland, delineated in a
manner consistent with the Federal Interagency Committee for Wetlands
Delineation 1989; Federal Manual for Identifying and Delineating Jurisdictional
Wetlands; United Army Corps of Engineers, United States Environmental
Protection Agency, United States Fish and Wildlife Service, and U.S.D.A.
Soil Conservation Service, Washington, D.C.
The land adjacent to a wetland, waterbody, or watercourse,
which area serves to lessen the impact of human disturbances, activity
and other encroachment associated with development, and is an integral
component of the wildlife and hydrologic values and functions of said
wetland, waterbody, or watercourse ecosystems. For all wetlands, waterbodies,
and watercourses, the buffer area shall extend a minimum of 100 feet
horizontally from the edge of the wetland boundary. (See "adjacent
area.")
The removal of more than 10 trees with a diameter at breast
height (DBH) of six inches or greater on a given lot within any twelve-month
period.
[Added 7-19-2007 by L.L. No. 10-2007]
To fill, place, effect, or dump any material, but not including
stormwater.
The emission of any water, substance, or material into a
wetland or wetland buffer whether or not such substance causes pollution.
To deplete or empty of water by drawing off by degrees or
in increments.
To excavate or remove sediment, soil, mud, sand, shells,
gravel or other aggregate.
To dig out and remove any material.
See "deposit."
Placement of visible markers at the wetland boundary which,
upon approval of the Town, may be transferred by a qualified surveyor
onto the site plan or other project map.
An area of land of any size that is comprised of hydric soils
and/or is inundated or saturated by surface water or groundwater at
a frequency and/or which supports hydrophytic vegetation, as described
in the Federal Interagency Committee for Wetlands Delineation 1989;
Federal Manual for Identifying and Delineating Jurisdictional Wetlands;
United Army Corps of Engineers, United States Environmental Protection
Agency, United States Fish and Wildlife Service, and U.S.D.A. Soil
Conservation Service, Washington, D.C.
The final freshwater wetlands maps for Dutchess County promulgated
by the Commissioner of the New York State Department of Environmental
Conservation pursuant to Subdivision 5 of § 24-0301 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.
Soils that are saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in the upper layers.
Vegetation, including obligate wetland species and facultative
species (see definitions for "obligate" and "facultative" under "National
List of Plant Species"), growing in water, soil or on a substrate
that is at least periodically deficient in oxygen as a result of excessive
water content.
A list of wetland plant species published by the U.S. Fish
and Wildlife Service and subdivided into regional and state lists,
as amended and updated from time to time.
An inventory of United States Wetlands conducted by the U.S.
Fish and Wildlife Service which was completed in 1990. Wetlands down
to one acre in size are delineated on maps at a scale of 1:24,000
based on aerial photo interpretation. The NWI does not delineate legal
boundaries of wetlands for regulatory purposes.
A cooperative effort of the NYSDEC and the Nature Conservancy
to establish and maintain an up-to-date inventory of the location
and status of rare plant and animal species and natural communities
in the state.
That form of municipal approval required by this chapter
for the conduct of a regulated activity within a wetland, waterbody,
watercourse, or buffer area.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to humans, plants, animals or property.
Any proposed or ongoing action which may result in direct
or indirect physical or chemical impact on a wetland, waterbody, watercourse,
or buffer area, including but not limited to any regulated activity.
Those activities to be conducted in wetlands, waterbodies, watercourses, or the associated buffer area, that require a permit from the Town, as set forth in § 137-6 of this chapter.
That area which consists of a wetland, waterbody, or watercourse,
and its associated buffer area.
The State of New York.
Any state department, bureau, commission, board or other
agency, public authority or public benefit corporation.
The law pursuant to Article 8 of the New York Conservation
Law providing for environmental quality review of actions which may
have a significant effect on the environment.
The Town of Wappinger.
Any natural or artificial pond, lake, reservoir, or other
area which usually or intermittently contains water and which has
a discernible shoreline.
Any identifiable channel through which water flows continuously
or intermittently.
[Amended 1-28-2013 by L.L. No. 2-2013]
A.
Regulated activities. Except as provided in Subsections B, C and D below, no person shall conduct any of the following regulated activities within any freshwater wetland or adjacent one-hundred-foot buffer area unless such person has first obtained a permit pursuant to this chapter:
(1)
Placement or construction of any structure.
(2)
Any form of draining, dredging, excavation or removal of material,
either directly or indirectly.
(3)
Any form of dumping, filling or depositing of material, either directly
or indirectly.
(4)
Installation of any service lines or cable conduits.
(5)
Introduction of any form of pollution, including, but not limited
to, the installation of a septic tank, the running of a sewer outfall
or the discharging of sewage treatment effluent or other liquid wastes
into, or so as to drain into, a wetland.
(6)
Alteration or modification of natural features and contours.
(7)
Alteration or modification of natural drainage patterns.
(8)
Construction of dams, docks or other water control devices, pilings
or bridges, whether or not they change the natural drainage characteristics.
(9)
Installation of any pipes or wells.
(10)
Clear-cutting.
(12)
Any agricultural activity not conducted in an agricultural district which involves any other activity in this Subsection A.
(13)
Excavation and removal of peat.
(14)
Any other activity that may impair the natural functions of
a wetland.
B.
As-of-right activities. No permit under this chapter shall be required
for any of the following activities, provided that they do not constitute
a pollution or erosion hazard or interfere with proper drainage and
do not require structures, grading, fill, draining or dredging for
which a permit may be required:
(1)
The deposit or removal of the natural products of the wetlands by
recreational or commercial fishing, shellfishing, aquiculture, hunting
or trapping where otherwise legally permitted.
(2)
Outdoor recreation activities that do not require construction or
that do not materially alter the natural state of the land, including
use of field trails for nature study, hiking, swimming, skin diving
and boating, where otherwise legally permitted.
(3)
Normal ground maintenance, including mowing and trimming of vegetation,
but excluding removal of vegetation that may cause erosion of sediment
into a wetland, waterbody, or watercourse.
(4)
Repair of existing decorative landscaping and planting in a wetland,
waterbody, or watercourse buffer zone.
(5)
Repair of existing walkways, walls, and driveways.
(6)
Public health activities, in emergencies only, of the Dutchess County
Department of Health and/or New York State Department of Health.
(7)
Operation and maintenance of existing dams and water-control devices.
(8)
Decorative planting in a buffer.
C.
Prohibited activities. It shall be unlawful for any person to place
or deposit animal wastes, chemical wastes or sewage effluent within
a wetland or its buffer or to introduce influents of sufficiently
high thermal content as to cause deleterious ecological effects.
D.
Exempt activities. A wetlands permit shall not be required for:
(1)
Activities on any residentially zoned lot which is 80,000 square
feet or less in size and which contains an existing home.
(2)
Farm operations, as defined in the New York State Agriculture and
Markets Law, when conducted in an agricultural district, unless the
proposed disturbance for the farm operation has the potential to result
in substantial off-site impact.
A.
Any person proposing to conduct or cause to be conducted
a regulated activity requiring a permit under this chapter shall file
an application with the appropriate approval authority. For wetlands
permits sought in conjunction with a site plan, subdivision and/or
special permit application, the approval authority shall be the Planning
Board. For all other wetlands permits sought, the approval authority
shall be the Building Inspector or Municipal Code Enforcement Officer.
[Amended 1-28-2013 by L.L. No. 2-2013]
B.
Application requirements. An application for a permit
shall include, at a minimum:
(1)
The name, address and telephone number of the owner;
(2)
The street address and tax map designation of the
property;
(3)
A sketch plan including boundaries of the property
parcel with the boundaries of the wetland and wetland buffer indicated
on the sketch. The approval authority may require the wetland to be
delineated by a qualified professional and verified by other agencies
having jurisdiction of the wetland such as the ACOE and the NYSDEC.
(4)
A description of the proposed work and purpose, including
the reason why the activity cannot be located outside the wetland
and/or wetland buffer and the extent of the encroachment into the
wetland or wetland buffer, calculated in square feet;
(5)
A wetlands analysis report that includes the following:
(a)
A description and analysis of the functions
of the wetland for groundwater recharge, groundwater discharge, stormwater
management, flood flow alteration, sediment stabilization, nutrient
removal, habitat for flora, habitat for fauna, and recreational uses;
(b)
A description and analysis of the impacts that
the proposed activity will have on the wetland, including the magnitude
of the impact(s), the duration of the impact(s), and whether the impact(s)
are adverse to the functioning of the wetland and/or neutral or positive;
and
[Amended 1-28-2013 by L.L. No. 2-2013]
When the approval authority is the Planning
Board, a decision on the wetlands permit shall be rendered by the
Planning Board in conjunction with a decision on an application for
site plan, subdivision and/or special permit approval, the wetlands
permit being included within any approval granted by the Planning
Board for said applications. When the Building Inspector or Municipal
Code Enforcement Officer is the approval authority, a decision on
the wetlands permit will be rendered within 30 days of receipt of
a complete application.
A.
No permit shall be issued by the approval authority
unless the approval authority shall find that:
(1)
The proposed regulated activity is consistent with
the policy of this chapter to preserve, protect and conserve freshwater
wetlands and the benefits derived therefrom, to prevent the despoliation
and destruction of freshwater wetlands and to regulate the development
of such wetlands in order to secure the natural benefits of freshwater
wetlands, consistent with the general welfare and beneficial economic,
social and agricultural development of the town.
(2)
The proposed regulated activity is consistent with
the applicable land use regulations pursuant to § 24-0903
of Article 24 of the State Environmental Conservation Law.
(3)
The proposed regulated activity is compatible with
the public health and welfare.
(4)
The proposed regulated activity is reasonable and
necessary.
(5)
There is no reasonable alternative for the proposed
regulated activity on a site which is not a freshwater wetland or
adjacent area.
(6)
In the event of negative impact(s), the mitigation
proposed will mitigate adverse impact(s) identified in a manner that
will allow the aquatic resource(s) to function in a manner substantially
equivalent to the functioning of such resource(s) prior to the proposed
activity.
B.
The applicant shall have the burden of demonstrating that the proposed regulated activity will be in accord with the standards set forth in Subsection A above.
C.
Duly filed written notice, by the state or any agency
or subdivision thereof to the agency, that the state or any such agency
or subdivision is in the process of acquiring the affected freshwater
wetland on which a proposed regulated activity would be located by
negotiation or condemnation shall be sufficient basis for denial of
a permit for such regulated activity. Such notice may be provided
at any time prior to the agency's decision to issue or deny a permit
for the regulated activity.
[Amended 7-19-2007 by L.L. No. 10-2007; 1-28-2013 by L.L. No.
2-2013]
A.
Any permit issued pursuant to this chapter may be issued with conditions
consistent with this chapter. Such conditions may be attached as are
necessary to ensure the preservation and protection of affected freshwater
wetlands and to ensure compliance with the policy and provisions of
this chapter and the provisions of the agency's rules and regulations
adopted pursuant to this chapter.
B.
Every permit issued pursuant to this chapter shall contain the following
conditions:
(1)
The agency shall have the right to inspect the project from time
to time.
(2)
The permit holder shall notify the agency of the date on which the
project construction is to begin at least five days in advance of
such date.
(3)
The agency's permit shall be prominently displayed at the project
site during the undertaking of the activities authorized by the permit.
(4)
The approval authority may monitor, or may cause to have monitored, projects according to the specifications set forth in the permit to determine whether the elements of the permit conditions, and mitigation plan, if required, have been satisfied and whether the restored or created wetland functions and acreage mitigate the impacted functions and acreage lost. If monitoring of the project is required by the approval authority, such authority shall also require the applicant to fund and maintain an escrow account in accordance with § 137-10B(4)(c)[4] below and Chapter 122, Article IV, § 122-16F.1(1) of the Code.
(a)
To this end, the approval authority may contract with qualified
wetland professionals and may require the applicant to contract with
qualified wetland professionals at the expense of the applicant. A
quarterly monitoring report prepared by the appropriate monitor shall
be submitted to the approval authority.
(b)
Long-term maintenance and monitoring is generally needed to
assure the continued viability of mitigation wetlands. Any mitigation
plan prepared pursuant to this chapter and accepted by the approval
authority shall become part of the permit for the application and
shall be incorporated in a preservation and maintenance covenant indexed
against the property as hereinafter provided.
(c)
The requirements for maintenance and monitoring shall be specified
in the written mitigation plan and referenced in the permit and shall
include, but not be limited to:
[1]
A five-year maintenance and monitoring period for mitigation
wetlands.
[2]
Field measurements by a qualified wetland professional to verify
the size and location of the impacted wetland area and the restored/replacement
wetland area.
[3]
Field verification by a qualified wetland professional of the
vegetative, hydrologic and soils criteria as specified in the mitigation
plan and permit.
[4]
The approval authority may require the establishment and maintenance of an escrow account from which withdrawals shall be made to reimburse the Town for the cost of professional monitoring services. In such case, the applicant shall deposit with the Town Comptroller or Town Accountant, via certified check, a sum of money as set forth in Chapter 122, Article IV, § 122-16F.1(1) of the Code. The Town Comptroller or Town Accountant shall pay from these funds the fees charged by any professionals employed by the Town to monitor the project. Said fees shall be submitted by voucher. It is the intent of these regulations to ensure that the applicant always has on deposit with the Town an adequate amount of funds to ensure that the Town will never subsidize applicant monitoring costs at any time. The applicant shall be provided with copies of the Town vouchers for such services as they are submitted to the Town. The applicant shall deposit additional funds into such account to bring its balance up to 100% of the amount of the full escrow deposit by the last day of each month. If such account is not fully replenished by the last day of the month, the Town may issue a stop-work order, if applicable, and the applicant may be deemed to be in violation of this chapter. No refunds of any funds remaining on deposit in escrow shall be issued until after all pertinent professional monitoring charges have been paid and the maintenance period has expired.
(5)
The permit shall require that a conservation easement or a preservation and maintenance covenant, as applicable, which meets the satisfaction of the approval authority is placed on all wetland and wetland buffer areas to be preserved and protected, and maintained, as applicable, in accordance with the provisions of Subsection A above.
(6)
The permit shall require that all wetland and wetland buffer areas
to be protected during construction shall be fenced as deemed appropriate
by the Planning Board. Such fencing shall also apply, as deemed appropriate
by the Planning Board, to disturbance and clearing limit lines.
(7)
The permit shall require that all wetland and/or wetland buffer areas
to be permanently protected shall be physically demarcated in the
field as deemed appropriate by the Planning Board with the use of
a boulder located every 40 feet along the wetland buffer boundary;
the Planning Board is, however, authorized to consider alternatives
to boulders where topography or distance of wetland from site improvements
will adequately protect the wetlands.
[Amended 4-23-2018 by L.L. No.
4-2018]
(8)
If deemed appropriate by the Planning Board, the permit may specify
how the wetland buffer areas are to be managed. Further, depending
upon the quality of the wetland and/or its functions, the permit may
require that the buffer areas be managed in accordance with the three-zone
riparian buffer system developed by the USDA Forest Service. (NOTE:
http://www.na.fs.fed.us/spfo/pubs/n_resource/buffer/cover.htm.)
C.
The approval authority shall set forth, in writing, in the file it
keeps regarding a permit application, its findings and reasons for
all conditions attached to any permit.
[Amended 1-28-2013 by L.L. No. 2-2013]
A.
The approval authority is hereby authorized to require
the applicant to post performance and maintenance agreements secured
by a surety bond, letter of credit or cash deposit in such amounts
as will secure compliance with the requirements, conditions and limitations
set forth in the permit. The performance bond, secured as above set
forth, shall be posted prior to commencement of any work authorized
under the permit. The particular amount of the security shall be established
by the approval authority upon consultation with the Engineer to the
Town, consistent with the purposes of this chapter, so as to ensure
the faithful compliance with the requirements, conditions and limitations
set forth in the permit. The performance agreement and security shall
remain in effect until all work authorized by the permit has been
completed to the reasonable satisfaction of the approval authority
and upon concurrence of the Engineer to the Town.
B.
The approval
authority is also authorized to require the applicant to post a maintenance
agreement secured by a surety bond, letter of credit or cash deposit
in such amounts as will secure any obligation to monitor or maintain
the work authorized in the permit, and as the same may be referenced
in the conservation easement and preservation covenant. The maintenance
agreement shall be posted for a period not to exceed five years. In
the event of a breach of any of the terms, covenants and conditions
contained in either the performance agreement or maintenance agreement,
the approval authority is authorized to call the security posted and
utilize the proceeds thereof to fulfill the requirements, conditions,
limitations and obligations set forth in the permit. The approval
authority is also authorized to institute an action in any court of
competent jurisdiction to seek specific performance of the obligations
set forth in the performance agreement or maintenance agreement. The
performance and maintenance agreements shall provide that in the event
that the approval authority is compelled to enforce the provisions
thereof by commencement of an action in a court of competent jurisdiction,
the agreements shall require that the prevailing party shall be entitled
to recover reasonable counsel fees as determined by the court. The
approval authority shall set forth, in writing, its findings and reasons
for imposing a performance agreement or maintenance agreement as secured
as aforesaid. Said findings and reasons shall be set forth in its
resolution of approval, if by the Planning Board, or shall be contained
in a separate statement, if issued by the Municipal Code Enforcement
Officer.
After approval of the application, the approval
authority shall issue a permit to the applicant. The date of issue
shall be the date the permit is signed by the approval authority.
The permit shall expire on completion of the acts specified and, unless
otherwise indicated, shall be valid for a period of one year from
the date of issue. The approval authority may grant an extension of
an original permit upon written request to the approval authority
by the property owners or his/her legal agent at least 90 days prior
to the expiration date of the original permit. No permit shall be
extended for a period of exceeding two years from the date of issue
of the original permit. The time period for a renewal may be waived
for good cause shown. The request for renewal of a permit shall follow
the same form and procedure as the original application.
No permit granted pursuant to this chapter shall
remove an applicant's obligation to comply in all respects with the
applicable provisions of any other federal, state or local law or
regulation, including but not limited to the acquisition of any other
required permit or approval.
The approval authority may suspend or revoke
a permit in the form of a stop-work order if it finds that the applicant
or permittee has not complied with any or all of the terms of such
permit, has exceeded the authority granted in the permit or has failed
to undertake the project in the manner set forth in the approved application.
The approval authority shall set forth, in writing, in the file it
keeps regarding a permit application, its findings and reasons for
revoking or suspending a permit pursuant to this section.
A.
Administrative sanctions.
(1)
Any person who undertakes any regulated activity within a wetland or wetland/watercourse buffer without a permit issued hereunder or who violates, disobeys or disregards any provision of this chapter, including any provision of any permit issued pursuant to this chapter or any rule or regulation adopted by the approval authority pursuant to this chapter, shall be liable to the Town for a civil penalty for every such violation, as set forth in the Town Fine Schedule located in Chapter 122, Article V, of the Town Code. Each consecutive day of the violation will be considered a separate offense. Such civil penalty may be recovered in an action brought by the Town at the request and in the name of the approval authority in any court of competent jurisdiction. Such civil penalty may be released or compromised by the approval authority, and such penalty may be released or compromised and any action commenced to recover the same may be settled and discontinued by the approval authority.
(2)
In addition, the approval authority shall have power,
following a hearing, to direct the violator to restore the affected
wetland to its condition prior to the violation, insofar as that is
possible, within a reasonable time and under the supervision of the
approval authority or its designee. Any such order of the approval
authority shall be enforceable in an action brought in any court of
competent jurisdiction. Any order issued by the approval authority
pursuant to this subsection shall be reviewable in a proceeding pursuant
to Article 78 of the State Civil Practice Law and Rules.
B.
Criminal sanctions. Any person who violates any provision of this chapter or an order, permit, condition or rule or regulation of the approval authority regulating wetlands and wetland/watercourse buffers pursuant to this chapter shall, for the first violation of this chapter, be guilty of an offense punishable by a fine set forth in the Town Fine Schedule located in Chapter 122, Article V, § 122-20O, of the Town Code; conviction of a second and/or subsequent violation of this chapter, all of which were committed within a five-year period, shall be deemed an offense punishable by a fine set forth in the Town Fine Schedule located in Chapter 122, Article V, § 122-20O of the Town Code or a term of imprisonment of not less than 15 days nor more than six months, or both. In addition to these punishments, any offender may be ordered by the court to restore the affected wetland to its condition prior to the offense, insofar as that is possible. The court shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approval authority. Each offense shall be a separate and distinct offense, and, in the case of continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense. Criminal sanctions may be invoked without the prior resort to administrative sanctions, which sanctions shall be deemed cumulative. Payment of such penalty shall not preclude corrective action and/or the removal of conditions found to be in violation of this chapter.
The Town is specifically empowered to seek injunctive
relief restraining any violation or threatened violation of any provisions
of this chapter and compel the restoration of the affected wetland,
waterbody, watercourse or buffer area to its condition prior to the
violation of the provisions of this chapter.
Any determination, decision or order of the
approval authority may be judicially reviewed pursuant to Article
78 of the Civil Practice Law and Rules in the Supreme Court for Dutchess
County, provided that available administrative remedies have been
exhausted.
