[HISTORY: Adopted by the Town Board of the Town of Highlands 6-28-1984
by L.L. No. 1-1984. Amendments noted where applicable.]
It is the purpose of this chapter to protect public health, safety and
welfare in the Town of Highlands by regulating site preparation and construction
activities, including excavation, filling, grading, stripping and construction
of drainage facilities so as to prevent problems related to erosion, sediment
or drainage. In relation to this purpose this chapter is intended to:
A.
Preserve the quality of the natural environment from
such adverse effects of site preparation and construction as:
(1)
Pollution of lakes, ponds and watercourses from silt
or other materials;
(2)
Unnecessary destruction of trees and other vegetation;
(3)
Excessive exposure of soil to erosion;
(4)
Unnecessary modification of natural topography or unique
geological features; and
(5)
Failure to restore sites to an attractive natural condition.
B.
Protect people and properties from such adverse effects
of site preparation and construction as:
C.
Protect the Town and other governmental bodies from having
to undertake, at public expense, programs of repairing roads and other public
facilities, of providing flood protection facilities and of compensating private
property owners for the destruction of properties arising from the adverse
effects of site preparation and construction; and
D.
Ensure that site preparation and construction are consistent
with the Comprehensive Plan of the Town of Highlands.
In accordance with Article 9 of the Town Law of the State of New York,
the Town of Highlands has the authority to enact local laws for the purpose
of promoting the health, safety or general welfare of the Town of Highlands,
including the protection and preservation of the property of its inhabitants.
By the same authority the Town of Highlands may include in any such chapter
provision for the appointment of any municipal officers or employees to effectuate
and administer such ordinance.
In order that site preparation and construction activities may be in
conformance with the provisions of this chapter, this chapter is hereby adopted
and shall be known and may be cited as the "Erosion, Sediment and Drainage
Control Local Law of the Town of Highlands."
Upon the adoption of this chapter, all site preparation and construction
activities requiring a permit under this chapter shall be in conformance with
the provisions set forth herein.
Where this chapter imposes greater restrictions than are imposed by
the provision of any law, ordinance, regulation or private agreement, this
chapter shall control. Where greater restrictions are imposed by law, ordinance,
regulation or private agreement than are imposed by this chapter, such greater
restrictions shall control.
As used in this chapter, the following terms shall have the meanings
indicated:
All activities directly related to the growing or raising of crops
or livestock for the sale of agricultural produce, including horticultural
and fruit operations.
The person designated by the Town Board to administer and maintain
the provisions of this chapter.
The diameter of a tree measured at a point 4 1/2 feet above the ground.
[Added 5-22-2006 by L.L. No. 2-2006]
The gravitational movement of water or other liquids by surface runoff
or subsurface flow.
The wearing away of the land surface by action of wind, water, gravity
or other natural forces.
Any activity which removes or significantly disturbs rock, gravel,
sand, soil or other natural deposits.
Any activity which deposits natural or artificial material so as
to modify the surface or subsurface conditions of land, lakes, ponds or watercourses.
The alteration of the surface or subsurface conditions of land, lakes,
ponds or watercourses by excavation or filling.
The application of a layer of plant residue or other material for
the purpose of effectively controlling erosion.
Solid material, both mineral and organic, that is in suspension,
is being transported, has been deposited or has been removed from its site
of origin by erosion.
The activities of stripping, excavation, filling, grading or construction
of drainage facilities, no matter what the purpose of these activities.
All unconsolidated mineral or nonliving organic material of whatever
origin which overlies bedrock.
Any activity which removes or significantly disturbs trees, brush,
grass or any other kind of vegetation.
The natural surface layer of soil, usually darker than subsurface
layers, to a depth of at least six inches within an undisturbed area of soils.
A living woody plant with an erect perennial trunk four inches or
more DBH with a definitely formed crown of foliage and total height of at
least 13 feet from the ground.
[Added 5-22-2006 by L.L. No. 2-2006]
Any natural or artificial stream, river, creek, ditch, channel, canal,
conduit, drainageway, gully, ravine or wash in which water flows in a definite
direction of course, either continuously or intermittently and which has a
definite channel, bed and banks, and any area adjacent thereto subject to
inundation by reason of overflow, flood or stormwater.
Areas of aquatic or semiaquatic vegetation or any areas which have
been mapped as such by the Town Planning Board, the County Soil and Water
Conservation District or the New York State Department of Environmental Conservation
under the Freshwater Wetlands Act.
[Amended 5-22-2006 by L.L. No. 2-2006]
A.
None of the following activities shall be commenced until
a permit has been issued from the Planning Board under the provisions of this
chapter:
(1)
Site preparation in the subdivision of land into two
or more parcels.
(2)
Site preparation within waterlands.
(3)
Site preparation on slopes which exceed 1 1/2 feet
of vertical rise to 10 feet of horizontal distance.
(4)
Site preparation within the one-hundred-year floodplain
of any watercourse.
(5)
Excavation which affects more than 200 cubic yards of
material within any parcel or any contiguous area.
(6)
Stripping which affects more than 20,000 square feet
of ground surface within any parcel or any contiguous area.
(7)
Grading which affects more than 20,000 square feet of
ground surface within any parcel or any contiguous area.
(8)
Filling which exceeds a total of 100 cubic yards of material
within any parcel or any contiguous area.
(9)
Site preparation pursuant to a special exception permit
issued by the Town Planning Board or the Town Board.
(10)
Site preparation affecting or contiguous to the shoreline
of the Hudson River.
(11)
On all properties, the removal or destruction of more
than three trees 10 inches DBH or over during any period of 12 consecutive
months or any one tree 30 DBH inches or over.
B.
The following activities are exempted from permit regulations:
(2)
Agricultural operations;
(3)
Excavations for the basements and footings of single-family
houses and for septic tank systems, wells and swimming pools attendant to
single-family homes;
(5)
Governmental activities, but only to the extent that
such activities are exempted from the provisions of this chapter by law;
(7)
The removal of trees:
(a)
Within 40 linear feet of the exterior walls of an existing
single-family or two-family house on the same lot; or
(b)
Which pose an imminent hazard to life or property, provided
a waiver from the permit requirements hereunder is first obtained from the
authorized official; or
(c)
On a lot of one acre or less, substantially developed
with improvements and having a single-family or two-family house situated
thereon.
A.
No site preparation requiring a permit under § 101-7 of this chapter shall be commenced until six copies of a permit application have been filed with the Town Clerk and an application has been approved and a permit has been granted pursuant to the provisions of this chapter.
B.
Upon filing an application for a permit, the applicant(s)
shall pay to the Town a fee as set by resolution of the Town Board from time
to time.
[Amended 3-10-1998 by L.L. No. 1-1998]
C.
All such applications shall be referred to the Town Planning
Board which shall have the authority to grant or deny all permits pursuant
to this chapter.
D.
At the option of the Town Planning Board, copies of the
permit application shall be submitted to the Town Engineer and/or the County
Soil and Water Conservation District, which shall submit recommendations on
the application to the Town Planning Board within 30 days of the date of filing.
All charges made by the Town Engineer for the review of the application and
for inspection to ensure compliance with the permit shall be paid by the applicant
as an additional application fee.
E.
The Town Planning Board may, in its discretion, conduct
public hearings on permit applications which hearings shall be fixed at a
reasonable time and shall be given notice by a newspaper of general circulation
in the Town at least 10 days prior to the date thereof.
F.
The Town Planning Board shall grant or deny all permits
within 60 days of the date of filing of the application thereof, unless the
applicant and the Town Planning Board consent to a time extension.
G.
Prior to granting a permit, the Town Planning Board shall
determine that the request is in harmony with the purpose and standards set
forth in this chapter.
H.
In granting a permit, the Town Planning Board shall fix
a reasonable time limit for the termination of the permit and may attach any
conditions which it deems necessary to assure compliance with the provisions
of this chapter.
I.
It shall be the responsibility of the authorized official
to inspect sites as frequently as necessary to assure compliance with the
terms of approved permits and the provisions of this chapter and to submit
written notification of any violations of these terms or provisions to the
Chairman of the Town Planning Board.
J.
If at any time during the effective period of a permit
or upon its expiration the terms of the permit are violated, the Town Planning
Board may revoke the permit and may require that the performance guaranty
be forfeited to the Town. If the applicant shall be unable to complete the
project or any phase thereof within the specified time, he shall, 30 days
prior to the specified date of completion, present, in writing, a request
for an extension of time, setting forth therein the reasons for the request.
If in the discretion of the Town Planning Board such an extension is warranted,
the Board may grant additional time for the completion of the work.
Maps and plans accompanying the application shall be prepared by a licensed
architect or engineer or by any other person approved by the Town Planning
Board. The Town Planning Board may require that additional copies of the application
be filed with the Town Clerk and may modify the requirements concerning materials
to accompany the application by waiving or adding such requirements as it
deems appropriate to the nature and scope of the proposed activities. Except
as modified by this section, each application shall contain the following
material:
A.
Existing features map(s), at a scale no smaller than
one inch equals 200 feet, indicating:
(1)
The boundaries of all parcels on which site preparation
activities are proposed to be undertaken;
(2)
All structures and roads within a distance of 500 feet
of the parcels of which site preparation activities are proposed to be undertaken,
the structures identified by their uses and the roads identified by their
surface material and width of surface;
(3)
All watercourses within a distance of 500 feet of the
parcels on which site preparation activities are proposed to be undertaken;
(4)
Existing topography at contour intervals of no greater
than five feet within a distance of 500 feet of the parcels on which site
preparation activities are proposed to be undertaken;
(5)
All sewer, water, gas and electric lines and all other
utilities within the parcels on which site preparation activities are proposed
to be undertaken;
(6)
Major wooded areas and tree clusters within a distance
of 500 feet of the parcels on which site preparation activities are proposed
to be undertaken;
(7)
All vegetation areas on the site proposed for site preparation
activities, including areas of grass, areas of brush and wooded areas and
tree clusters;
(8)
The depth to bedrock on the site proposed for site preparation
activities, if determined during site evaluation; and
(9)
The depth to permanent groundwater aquifers on the site
proposed for site preparation activities, if such depth is determined during
site evaluation.
B.
Operations map(s) at a scale no smaller than one inch
equals 200 feet, which present a complete erosion and sediment control plan
and which indicate:
(1)
All excavation, filling and grading proposed to be undertaken,
identified as to the depth, volume and nature of the materials involved;
(2)
All stripping, identified as to the nature of vegetation
affected;
(3)
All areas where topsoil is removed and stockpiled and
where topsoil is ultimately placed, identified as to the depth of topsoil
in each such area;
(4)
All temporary and permanent vegetation to be placed on
the site, identified as to planting type, size and extent;
(5)
All temporary and permanent drainage, erosion and sediment
control facilities, including such facilities as ponds and sediment basins
identified as to the type of facility, the materials from which it is constructed,
its dimensions and its capacity in gallons;
(6)
The anticipated pattern of surface drainage during periods
of peak runoff, upon completion of site preparation and construction activates,
identified as to rate and direction of flow at all major points within the
drainage systems;
(7)
The location of all roads, driveway, sidewalks, structures,
utilities and other improvements; and
(8)
The final contours of the site in intervals of no greater
than two feet.
C.
A time schedule which is keyed to the operations map(s),
indicating:
(1)
When major phases of the proposed project are to be initiated
and completed;
(2)
When major site preparation activities are to be initiated
and completed;
(3)
When the installation of temporary and permanent vegetation
and drainage, erosion and sediment control facilities is to be completed;
and
(4)
The anticipated duration (in days) of exposure of all
major areas of site preparation before the installation of erosion and sediment
control measures.
D.
An estimate of the costs of providing temporary and permanent
vegetation and drainage, erosion and sediment control facilities.
E.
Notwithstanding the foregoing, an application to remove 12 or fewer trees from a developed lot containing an existing single-family or two-family house without other site preparation activities shall only be required to be accompanied by a sketch of the property showing the approximate location of the trees, existing building footprints and property lines and photos of the premises and trees proposed to be removed taken from at least three angles and shall not be required to be accompanied by the materials identified in Subsections A, B, C and D above, unless the Town Planning Board shall deem additional materials appropriate to the nature and scope of the proposed activities.
[Added 5-22-2006 by L.L. No. 2-2006]
F.
The Town Planning Board may, if it determines it appropriate
to the nature and scope of the proposed activities, require the submission
of a tree protection plan prepared by an arborist who has demonstrated knowledge
and competency through obtaining the current International Society of Arboriculture
arborist certification or who is a member of the American Society of Consulting
Arborists or by a licensed landscape architect.
[Added 5-22-2006 by L.L. No. 2-2006]
In granting a permit under this chapter, the standards and considerations
taken into account include but shall not be limited to the following:
A.
Excavation, filling, grading and stripping shall be permitted
to be undertaken only in such locations and in such a manner as to minimize
the potential of erosion and sediment and the threat to the health, safety
and welfare of neighboring property owners and the general public.
B.
Site preparation and construction shall be fitted to
the vegetation, topography and other natural features of the site and shall
preserve as many of these features as feasible.
C.
The control of erosion and sediment shall be a continuous
process undertaken as necessary prior to, during and after site preparation
and construction.
D.
The smallest practical area of land shall be exposed
by site preparation at any given time.
E.
The exposure of areas by site preparation shall be kept
to the shortest practical period of time prior to the construction of structures
or improvements or the restoration of the exposed areas to an attractive natural
condition.
F.
Mulching or temporary vegetation suitable to the site
shall be used where necessary to protect areas exposed by site preparation
and permanent vegetation which is well adapted to the site shall be installed
as soon as practical.
G.
Where slopes are to be revegetated in areas exposed by
site preparation, the slopes shall not be of such steepness that vegetation
cannot be readily established or that problems of erosion or sediment may
result.
H.
Site preparation and construction shall not adversely
affect the free flow of water by encroaching on, blocking or restricting watercourses.
I.
All fill material shall be of a composition suitable
for the ultimate use of the fill, free of rubbish and carefully restricted
in its contents of brush, stumps, tree debris, rocks, frozen material and
soft or easily compressible material.
J.
Fill material shall be compacted sufficiently to prevent
problems of erosion and where the material is to support structures, it shall
be compacted to a minimum of 90% of standard proctor with proper moisture
control.
K.
All topsoil which is excavated from a site shall be stockpiled
and used for the restoration of the site and such stockpiles where necessary,
shall be seeded or otherwise treated to minimize the effects of erosion.
L.
Prior to, during and after site preparation and construction,
an integrated drainage system shall be provided which at all times minimizes
erosion, sediment, hazards of slope instability and adverse effects on neighboring
property owners.
M.
The natural drainage system shall generally be preserved
in preference to modifications of this system, excepting where such modifications
are necessary to reduce levels of erosion and sediment and adverse effects
on neighboring property owners.
N.
All drainage systems shall be designed to handle adequately
anticipated flows both within the site and from the entire upstream drainage
basin.
O.
Sufficient grades and drainage facilities shall be provided
to prevent the ponding of water, unless such ponding is proposed within site
plans, in which event there shall be sufficient water flow to maintain proposed
water levels and to avoid stagnation.
P.
There shall be provided where necessary to minimize erosion
and sediment such measures as benches, berms, terraces, diversions and sediment,
debris and retention of basins.
Q.
Drainage systems, plantings and other erosions or sediment
control devices shall be maintained as frequently as necessary to provide
adequate protection against erosion and sediment and to ensure that the free
flow of water is not obstructed by the accumulation of silt, debris or other
material or by structural damage.
R.
Tree removal or destruction shall be permitted if the presence
of trees would cause hardship preventing the reasonable use of the property
for approved or permitted purposes, which hardship is not self-created and
is unique to the property; or endanger the public or the person or property
of the owner or neighbors; or the trees are on property to be occupied by
buildings, structures or related improvements and within a distance of 10
feet around the perimeter of such building or structure; or block an important
viewshed and the removal of the trees is performed in a selective manner.
Other considerations may include the likelihood of the survival of the tree,
economical considerations of land use, the general welfare and the overall
environment of the area, whether the removal will have significant adverse
impact on ecological systems, including erosion potential and wildlife habitat,
and whether the removal will have significant adverse impact on other properties
or roadways, including impacts on drainage. The Planning Board may require
proposed buildings or structures to be relocated on a plan or reduced in size
in order to save a tree or trees which the Planning Board determines to be
important or whose removal will have significant adverse impact.
[Added 5-22-2006 by L.L. No. 2-2006]
S.
During site preparation activities, the property owner or developer
shall protect all trees on the approved subdivision plat, site plan and/or
permit map, as the case may be, designated to be preserved by the Planning
Board.
[Added 5-22-2006 by L.L. No. 2-2006]
(1)
Unless the Planning Board, for good cause, determines otherwise,
all trees designated to be preserved by the Planning Board shall be guarded
as follows: (1) for trees with a crown spread of eight feet or less, a substantial
fence, frame or box not less than four feet high and eight feet square shall
surround the tree; (2) for a tree with a crown spread over eight feet, a fence
not less than four feet high shall be placed at least at the tree's dripline
marking the outer edges of the branches or at a distance otherwise prescribed
by the Planning Board.
(2)
Fencing shall, at a minimum, be constructed of orange nylon-type material and stakes. The authorized official may approve other suitable fencing. Fencing and other barriers shall be erected before site preparation begins and remain in place until granting of the certificate of occupancy, except for work specifically required in the tree protection area in the approved plans. The owner or contractor shall submit written verification to the Building Inspector that required tree barriers are in place prior to demolition or building permit issuance. Every effort to avoid compaction of soil porosity within the tree protection area shall be taken at all times as mitigation against injury. All building material, soil or debris shall be kept outside these barriers, and water shall not be permitted to accumulate near the base of the tree. Roads and driveways shall be located as far from protected tree areas as possible. If a temporary driveway is needed in the root zone of a protected tree, 12 inches of wood chips shall be used as a base for the equipment to drive on. Such trees shall not be damaged during site preparation activities or removed without the prior consent of the Planning Board. In the event that such trees are damaged during site preparation activities or removed without prior consent of the Planning Board, such trees shall be replaced by trees the size and species of which are to be determined by the Planning Board, which trees shall be guaranteed and maintained for a period of two years. Unless the Planning Board, for good cause, determines otherwise, damaged, destroyed or removed protected trees shall be replaced by the caliper inch, such that for every inch of diameter (DBH) removed, an equal number of caliper inches shall be replaced (for example, the unauthorized removal of one twelve-inch DBH tree shall necessitate the planting of six two-inch DBH trees or four three-inch DBH trees, etc.). No site plan approval, special permit, building permit, certificate of occupancy, variance, or other Town permit shall be issued by any Town agency for said property until such replacement has been completed and approved by the authorized official, and the Planning Board may revoke the existing permit in accordance with the provisions of § 101-8J.
A.
After the approval of the application and before the issuance of any permit, the applicant shall file with the Town Clerk an amount of the estimated cost of the project as submitted under § 101-9 of this chapter and verified by the authorized official, one of the following performance guaranties:
B.
The Town Planning Board may grant a waiver of such guaranty
if it deems the proposed activities to be of minor scope and to be consistent
with the provisions of this chapter.
C.
The party or parties filing the performance guaranty
provide that either upon termination of the permit or the operation, whichever
may come first, the project shall be in conformity with both the approved
specific requirements of the permit and the provisions of this chapter. In
the event of default of such and violation of any other applicable laws, such
performance guaranty shall be forfeited to the Town. The Town shall return
to the applicant any amount that is not needed to cover the costs of restoration,
administration and any other expenses incurred by the Town as a result of
the applicant's default. Such performance guaranty shall continue in
full force and effect until a certificate of compliance shall be issued by
the authorized official after such consultation with any agencies or individuals
as he deems necessary to ensure that all provisions of this chapter and of
the permit have been met.
D.
The Town Planning Board may additionally require that an applicant furnish the Town, before the issuance of any permit, with a performance security in one of the forms specified in Subsection A above in an amount sufficient to cover 100% of the total replacement cost of trees designated for preservation by the Planning Board plus the cost of measures required for the protection of trees in accordance with the approved application, in order to insure the repair and replacement, if necessary, of such trees designated for preservation. The total amount of the performance security shall reflect all restoration and protection costs and shall be in accordance with each set of individual circumstances. Upon completion of all restoration work to the satisfaction of the authorized official, the performance bond shall be canceled and replaced with a maintenance security to be approved by the Town Board and Town Attorney and to run for a period of two years.
[Added 5-22-2006 by L.L. No. 2-2006]
A.
The Town Board shall appoint an official to enforce the
provisions of this chapter.
B.
Any person, firm, partnership, corporation or other party
who violates any provision of this chapter shall, upon conviction thereof,
pay a fine a fine not to exceed $250 or be imprisoned not to exceed 15 days,
or both. The imposition of any such penalty for the violation of this chapter
shall not excuse such violation nor permit the continuance thereof. The application
of the above penalty or penalties for a violation of the provisions of this
chapter shall not be held to prevent the removal of conditions prohibited
by this chapter by such legal means as may be proper.
[Amended 3-10-1998 by L.L. No. 1-1998]
C.
Every day that a violation of any of the provisions of
this chapter continues after written notice shall have been served upon the
owner or his agent, either personally or by certified mail addressed to such
person at his last known address, shall constitute a separate violation.
D.
Report of unsafe conditions.
(1)
If, in the opinion of the enforcement official, a violation
of this chapter has caused soil, liquid or other material to roll, flow or
wash upon any public or private property or right-of-way and has created a
dangerous, unsafe or unhealthy condition to such property or to the public,
he shall immediately report such condition, in writing, to the Town Board.
(2)
The Town Board shall immediately consider such report
and shall, by resolution, determine the existence of such violation of this
chapter and the dangerous, unsafe or unhealthy condition reported to the Town
Board.
(3)
If the Town Board determines that such violation and
such dangerous, unhealthy or unsafe condition exists, the Town Board shall
immediately serve a copy of its resolution and the report upon which it is
based upon the owner of the property upon which such condition has been created.
Such service shall be made personally or by certified mail, return receipt
requested.
(4)
Within five days of the receipt of such resolution and
report the owner of the property shall remedy said violation and the dangerous,
unhealthy or unsafe condition created. If the owner fails to do so, the Town
Board may, at its option, make application to the Supreme Court of Orange
County for an order authorizing the Town of Highlands to enter upon said property
and make the repairs necessary to remedy the violation and unsafe, dangerous
or unhealthy condition and charge the cost thereof to the property owner.
Such cost shall be a debt of the property owner owed to the Town of Highlands.
E.
In addition to the penalties set forth in Subsection B, any person violating any provision of this chapter pertaining to tree removal or destruction shall be subject to a civil penalty enforceable and collectible by the Town in the amount of $250 each day the violation continues for every tree until tree replacement has been completed and approved by the authorized official.
[Added 5-22-2006 by L.L. No. 2-2006]
