[HISTORY: Adopted by the Town Board of the Town of Smithtown:
Art. I, 8-27-1976 as L.L. No. 3-1976; Art. II, 9-7-1976 as L.L. No. 4-1976. Amendments noted where applicable.]
[Adopted 8-27-1976 as L.L. No. 3-1976]
Pursuant to § 24-0501 of the New York State Freshwater
Wetlands Act (Article 24 of the New York Environmental Conservation
Law), the Town of Smithtown shall fully undertake and exercise its
regulatory authority with regard to activities subject to regulation
under the Act in freshwater wetlands, as shown on the Freshwater Wetlands
Map, as such may from time to time be amended, and filed by the Department
of Environmental Conservation pursuant to the Act, and in all areas
adjacent to any such freshwater wetland up to one hundred (100) feet
from the boundary of such wetland. Such regulatory authority shall
be undertaken and exercised in accordance with all of the procedures,
concepts and definitions set forth in Article 24 of the New York Environmental
Conservation Law and Title 23 of Article 71 of such law relating to
the enforcement of Article 24, as such law may from time to time be
amended, together with any exceptions, additions and modifications
hereto made in accordance with § 24-501, Subdivision 3,
of the New York State Environmental Conservation Law.
This Article, adopted on the date set forth above, shall take
effect upon the filing with the Clerk of the Town of Smithtown of
the final Freshwater Wetlands Map by the New York State Department
of Environmental Conservation pursuant to § 24-0301 of the
Freshwater Wetlands Act applicable to any or all lands within the
Town of Smithtown.
[Adopted 9-7-1976 as L.L. No. 4-1976]
This Article shall be known as the "Freshwater Wetlands Protection
Law of the Town of Smithtown."
It is declared to be the public policy of the Town of Smithtown
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. It is further declared to be the policy of
the Town of Smithtown to exercise its authority pursuant to Article
24 of the State Environmental Conservation Law.
A.
The freshwater wetlands located in the Town of Smithtown are invaluable
resources for flood protection, wildlife habitat, open space and water
resources.
B.
Considerable acreage of freshwater wetlands in the town has been
lost, despoiled or impaired by unregulated draining, dredging, filling,
excavating, building, pollution or other acts inconsistent with the
natural uses of such areas. Other freshwater wetlands are in jeopardy
of being lost, despoiled or impaired by such unregulated acts.
C.
Recurrent flooding aggravated or caused by the loss of freshwater
wetlands has serious effects upon natural ecosystems.
D.
Freshwater wetland conservation is a matter of concern.
E.
Any loss of freshwater wetlands deprives the people of the Town of
Smithtown of some or all of the many and multiple benefits to be derived
from wetlands, for example:
(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, fishing, boating, hiking,
bird-watching, photography, camping 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 and protecting channels and harbors.
(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.
F.
The regulation of freshwater wetlands, in accordance with the agricultural exemption established in § 170-7 hereof, 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.
The following terms, phrases, words and their derivatives shall
have the meanings given herein:
Any land in the Town of Smithtown immediately adjacent to
a freshwater wetland, lying within one hundred (100) feet, as determined
by the local government, measured horizontally, of the boundary of
a freshwater wetland.
The Town of Smithtown Conservation Board.
[Amended 2-21-1984 by L.L. No. 4-1984]
Any person who files an application for any permit issued
by the Agency pursuant to this Article, and includes the agent of
the owner or a contract vendee.
The Freshwater Wetlands Appeals Board established by Article
24 of the State Environmental Conservation Law.
The outer limit of the vegetation specified in Subsections
A and B of the definition of "freshwater wetlands" and of the waters
specified in Subsection C of such definition.
Lands and waters lying within the boundaries of the Town
of Smithtown, as shown on a Freshwater Wetlands Map, which contain
any or all of the following:
Lands and submerged lands commonly called marshes, swamps, slough,
bogs and flats supporting aquatic or semiaquatic vegetation of the
following vegetative types:
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 species), black spruce (Picea mariana), swamp white
oak (Quercus bicolor), red ash (Fraxinus pennsylvanica), American
elm (Ulmus americana) and larch (Larix laricina).
Wetlands 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 species),
buttonbush (Cephalanthus occidentalis), bog rosemary (Andromeda glaucophylla)
and leatherleaf (Chamaedaphne calyculata).
Emergent vegetation, including, among others, cattails (Typha
species), pickerelweed (Pontederia cordata), bulrushes (Scirpus species),
arrow arum (Peltandra virginica), arrowheads (Sagittaria species),
reed (Phragmites communis), wild rice (Zizania aquatica), bur reeds
(Sparganium species), purple loosestrife (Lythrum salicaria), swamp
loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica).
Rooted, floating-leaved vegetation, including, among others,
water lily (Nymphaea odorata), water shield (Brasenia schreberi) and
spatterdock (Nuphar species).
Free-floating vegetation, including, among others, duckweed
(Lemna species), big duckweed (Spirodela polyrhiza) and watermeal
(Wolffia species).
Wet meadow vegetation, which depends upon seasonal or permanent
flooding or sufficiently waterlogged soils to give them a competitive
advantage over other open land vegetation, including, among others,
sedges (Carex species), rushes (Juncus species), cattails (Typha species),
rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinaceae),
swamp loosestrife (Decodon verticillatus) and spike rush (Eleocharis
species).
Bog mat vegetation, including, among others, sphagnum mosses
(Sphagnum species), bog rosemary (Andromeda glaucophylla), leatherleaf
(Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea) and
cranberries (Vaccinium macrocarpon and Vaccinium oxycoccos).
Submergent vegetation, including, among others, pondweeds (Potamogeton
species), naiads (Naias species), bladderworts (Utricularia species),
wild celery (Vallisneria americana), coontails (Ceratophyllum demersum),
water milfoils (Myriophyllum species), muskgrass (Chara species),
stonewort (Nitella species), waterweeds (Elodea species) and water
smartweeds (Polygonum amphibium).
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, provided that such wet conditions
do not exceed a maximum seasonal water depth of six (6) feet and provided,
further, that such conditions can be expected to persist indefinitely,
barring human intervention.
A map on which are indicated the boundaries of any freshwater
wetland and which has been filed with the Clerk of the Town of Smithtown
by the State Department of Environmental Conservation pursuant to
§ 24-0301 of the State Environmental Conservation Law.
A city, county, town or village.
The applicant, the Agency, the State Department of Environmental Conservation, each local government in which the regulated activity or any part thereof is located and any person who appears and wishes to be a party in interest at the public hearing held pursuant to § 170-9 of this Article.
Any corporation, firm, partnership, association, trust, estate,
one (1) or more individuals and any unit of government or agency or
subdivision thereof.
The presence in the environment of human-induced conditions
or contaminants in quantities or having characteristics which are
or may be injurious to humans, plants, animals or property.
Any action which may result in direct or indirect physical
impact on a freshwater wetland, including but not limited to any regulated
activity.
Any form of draining, dredging, excavation, removal of soil, mud, sand, shells, gravel or other aggregate from any freshwater wetland, either directly or indirectly; any form of dumping, filling or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly; erecting any structures or roads; the driving of pilings or placing of any other obstructions, whether or not changing the ebb and flow of the water; any form of pollution, including but not limited to installing a septic tank, running a sewer outfall or discharging sewage treatment effluent or other liquid wastes directly into or so as to drain into a freshwater wetland; that portion of any subdivision of land that involves any land in any freshwater wetland or adjacent area; and any other activity which substantially impairs any of the several functions served by freshwater wetlands or the benefits derived therefrom which are set forth in § 170-5 of this Article.
The annual or periodic removal of trees, individually or
in small groups, in order to realize the yield and establish a new
crop and to improve the forest, which does not involve the total elimination
of one (1) or more particular species of trees.
The State of New York.
Any state department, bureau, commission, board or other
agency, public authority or public benefit corporation.
Any division of land into two (2) or more lots, parcels or
sites, whether adjoining or not, for the purpose of sale, lease, license
or any form of separate ownership or occupancy, including any grading,
road construction, installation of utilities or other improvements
of utilities or other improvements or any other land use and development
preparatory or incidental to any such division, by any person or by
any other person controlled by, under common control with or controlling
such person or by any group of persons acting in concert as part of
a common scheme or plan. "Subdivision of land" shall include any map,
plat or other plan of division of land, whether or not previously
filed. "Subdivision of land" shall not include the lease of land for
hunting and fishing and other open-space recreation uses and shall
not include the division of land by a bona fide gift, devise or inheritance.
The Town of Smithtown.
A.
Except as provided in Subsection B of this section, no person shall conduct a regulated activity on any freshwater wetland or adjacent area unless such person has first obtained a permit pursuant to this Article.
B.
No permit under this Article shall be required for:
(1)
The deposition or removal of the natural products of freshwater wetlands
and adjacent areas by recreational or commercial fishing, shellfishing,
aquiculture, hunting or trapping, where otherwise legally permitted
and regulated.
(2)
The activities of farmers and other landowners in grazing and watering
livestock, making reasonable use of water resources, harvesting natural
products of wetlands or adjacent areas, selective cutting of timber,
draining land or wetlands for growing agriculture products and otherwise
engaging in the use of wetlands or other land for growing agricultural
products, except that structures not required for the enhancement
or maintenance of the agricultural productivity of the land and any
filling activities shall not be excluded hereunder. Each farmer or
other landowner who intends to conduct an otherwise regulated activity
shall notify the Agency, in writing, prior to conducting the activity,
of his or her intention to engage in such activity, stating the approximate
acreage of the freshwater wetland or adjacent area affected, the location
thereof, the methods to be employed and the uses to be made of such
land. A soil and water conservation plan prepared by a soil and water
conservation district and filed with the Agency shall be deemed sufficient
notification for the purpose of this subsection.
(3)
Public health activities, orders and regulations of the State Department
of Health, County Department of Health, City Department of Health
or other, as applicable, undertaken in compliance with § 24-0701,
Subdivision 5, of the State Environmental Conservation Law.
(4)
Activities subject to the review jurisdiction of the State Public
Service Commission or the New York State Board on Electric Generation
Siting and the Environment under Article VII or Article VIII of the
State Public Service Law, respectively. The standards and restrictions
of this Article will be applied by said bodies in determining whether
to issue a certificate of environmental compatibility and public need
under such Articles.
(5)
Any actual and ongoing emergency activity which is immediately necessary
for the protection and preservation of life or property or for the
protection or preservation of natural resource values. Such emergency
activities include, for example, search and rescue operations; preventive
or remedial activities related to the large-scale contamination of
streams or other bodies of water; floods, hurricanes and other storms;
and public health concerns. Within five (5) days of the end of such
an emergency involving the undertaking of any activity which otherwise
would be treated as a regulated activity under this Article, the person
chiefly responsible for undertaking such emergency activity shall
send a written statement to the Agency setting forth the pertinent
facts regarding such emergency, including an explanation of the life,
property or resource value such activity was designated to protect
or preserve.
(6)
Any activity located in a freshwater wetland where such wetland is
located in more than one (1) town.
A.
Any person proposing to conduct or cause to be conducted a regulated
activity requiring a permit under this Article upon any freshwater
wetland or adjacent area shall file an application for a permit with
the Clerk of the Town of Smithtown. The Clerk shall immediately forward
such application to the Agency.
B.
An application for a permit shall be filed by the applicant on a
form prescribed by the Agency. Such application shall set forth the
purpose, character and extent of the proposed regulated activity.
The application shall include a detailed description of the regulated
activity, a map showing the area of the freshwater wetland or adjacent
area directly affected with the location of the proposed regulated
activity thereon, a deed or other legal description describing the
subject property and such additional information as the Agency deems
sufficient to enable it to make the findings and determinations required
under this Article. The application shall be accompanied by a list
of the names of the owners of record of lands adjacent to the freshwater
wetland or adjacent area upon which the project is to be undertaken
and the names of known claimants of water rights, of whom the applicant
has notice, which relate to any land within, or within one hundred
(100) feet of the boundary of, the property on which the proposed
regulated activity will be located. An application shall not be deemed
to be complete or received until the Agency determines that all such
information, including any additional information requested, has been
supplied in a complete and satisfactory form.
C.
The Clerk of the Town of Smithtown shall cause a copy of such completed
application to be mailed to all local governments where the proposed
activity or any part thereof is located.
D.
Notice of application.
(1)
Within five (5) days of its receipt of a completed application for
a permit regarding any proposed regulated activity, the Agency shall
provide the applicant with a notice of application which the applicant
shall publish, at his or her own expense, at least once in each of
at least two (2) newspapers having a general circulation in the Town
of Smithtown. Said notice of application shall be in a form prescribed
by the Agency and shall:
(a)
Specify that persons wishing to object to the application should
file a notice of objection by a specified date, together with a statement
of the precise grounds of objection to the application, with the Agency.
(b)
Specify that if no notices of objection are timely filed or
if the Agency determines that the proposed activity is of such a minor
nature as to not affect or endanger the balance of systems within
any freshwater wetland, then the Agency, in its discretion, may determine
that a hearing is not necessary and dispense with the public hearing.
(c)
Specify that the application, including all documents and maps
therewith, is available for public inspection at the office of the
Clerk of the Town of Smithtown.
E.
Hearing.
(1)
No sooner than thirty (30) days and not later than sixty (60) days after its receipt of a completed application for a permit regarding a proposed regulated activity, and after the publication of a notice of application pursuant to Subsection D of this section, the Agency shall hold a public hearing on such application at a suitable location in the Town of Smithtown, which hearing shall be held pursuant to the provisions of § 170-9 of this Article.
(2)
Notwithstanding the provisions of Subsection E(1) of this section, where no notice of objection to the notice of application published pursuant to Subsection D of this section shall have been filed within the time specified by that notice or where the Agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any freshwater wetland, the Agency may, in its discretion, dispense with such hearing. Where the Agency finds that a public hearing is not necessary, it shall publish a decision, setting forth its reasons therefor, which decision shall be a matter of public record and shall be mailed to each local government where the proposed regulated activity or any part thereof will be located. Public notice of such decision that a public hearing is not necessary shall be provided in the same manner as the notice of application set forth in Subsection D of this section.
F.
Notice of hearing.
(1)
The Agency shall, within twenty-one (21) days of receipt of a completed
application, provide the applicant with a notice of hearing which
the applicant shall publish, at his or her own expense, at least fifteen
(15) days prior to the date set for the hearing, at least once in
each of at least two (2) newspapers of general circulation in the
Town of Smithtown.
(2)
At least fifteen (15) days prior to the date set for the hearing,
the Agency shall, by certified mail, provide a notice of hearing to
each local government within whose boundaries the proposed regulated
activity or any portion thereof will be located.
(3)
At least fifteen (15) days prior to the date set for the hearing,
the Agency shall, by certified mail, provide notice of hearing to
all owners of record of land adjacent to the affected freshwater wetland
or adjacent area and to all known claimants of water rights, of whom
the applicant has notice, which relate to any land within, or within
one hundred (100) feet of the boundary of, the property on which the
proposed regulated activity will be located.
(4)
The notice of hearing shall:
(a)
State the name of the applicant.
(b)
Specify the location and outline the scope of the proposed regulated
activity.
(c)
Specify the date, time and place of the public hearing on the
application.
(d)
Specify that persons wishing to be parties in interest and eligible
to be heard at such public hearing, if any, should file with the Agency
a notice of appearance by a specified date, together with a statement
of the precise grounds of support of, opposition to or interest in
the application.
(e)
Specify that any person who wishes to be a party in interest
without filling a notice of appearance may do so by appearing at the
public hearing and indicating his or her desire to be a party in interest,
if a public hearing is held.
(f)
Specify that if no notices of appearance are timely filed by
and party in interest and if the applicant waives any public hearing,
then the public hearing may be canceled by the agency.
(g)
Specify that the application, including all documents and maps
therewith, is available for public inspection at the office of the
Clerk of the Town of Smithtown.
G.
The Agency shall make the application, including all documents and
maps associated with it, available for public inspection at the office
of the Clerk of the Town of Smithtown.
H.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to Subsection F of this section and the applicant waives, in writing, any public hearing on his or her application, the Agency may dispense with a public hearing and, in such instance, shall provide public notice of the cancellation of the hearing.
I.
For any notice canceling a hearing which has been scheduled, notice shall be given on the same basis as the notice of public hearing provided in Subsection F of this section.
J.
The Agency may establish permit fees to assist in its implementation
of this Article.
A.
Any public hearing held on a permit application received under this
Article shall be conducted by a hearing officer designated by the
Agency. The hearing officer shall have full authority to control the
conduct and procedure of the hearing and shall be responsible for
seeing that a complete record of the hearing is kept. The public hearing
shall be held within the Town of Smithtown.
B.
Parties in interest.
(1)
Any person may appear as a party in interest, notwithstanding the
failure of such person to file a timely notice of appearance, by appearing
at the hearing and making known his or her desire to be a party in
interest. Persons who are not parties in interest may be allowed to
participate in the hearing where the hearing officer finds that such
participation would be in the public interest.
(2)
All parties in interest shall be afforded an opportunity to present
oral and written arguments on issues of law and policy and an opportunity
to call witnesses in their behalf and to present oral and written
evidence on issues of fact. The hearing officer shall permit the parties
in interest to cross-examine witnesses but may limit such cross-examination
to avoid the introduction of irrelevant or repetitious material in
the record of the hearing.
A.
Where a public hearing has been held regarding a permit application,
the Agency shall either issue the permit request, with or without
conditions, or deny the application. The decision by the Agency to
issue or deny a permit after a public hearing shall be based on the
record of the hearing and shall be made, in writing, within thirty
(30) days of the Agency's receipt of the hearing record.
B.
Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to § 170-8E(2) of this Article or because no notice of appearance was filed with regard to the public hearing and a hearing was canceled pursuant to § 170-8H of this Article, the Agency shall compile an official file consisting of documents submitted by the applicant and any additional documents relied on by the Agency with respect to the application. The Agency may also take notice of general, technical or scientific facts within the specialized knowledge of the Agency. Any document made part of such official file shall be available for inspection by the applicant and any interested member of the public. On the basis of such file, the Agency shall either issue the permit requested, with or without conditions, deny the application or order a public hearing to be held pursuant to the provisions of this Article. The decision by the Agency to issue or deny a permit or to order that a hearing be held shall be based on the official file and shall be made, in writing, within thirty (30) days of its completion of the official file and, in any event, within sixty (60) days of its receipt of a completed application; provided, however, that in the case where there have been no objections filed regarding a proposed project, the issuance of a permit shall be deemed to be a written decision by the Agency.
C.
A copy of the decision of the Agency on each application for a permit
under this Article shall be mailed by the Agency as soon as practicable
following such decision to the applicant and to each local government
within whose boundaries the proposed regulated activity or any portion
thereof is located and, if a public hearing has been held regarding
the application, to each party in interest.
A.
In granting, denying or conditioning any permit, the Agency shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and the protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom which are set forth in § 170-5 of this Article.
B.
Standards for issuance of permit.
(1)
No permit shall be issued by the Agency pursuant to this Article
unless the Agency shall find that:
(a)
The proposed regulated activity is consistent with the police
of this Article to preserve, protect and conserve freshwater wetlands
and the benefits derived therefrom and to prevent the despoliation
and destruction of freshwater 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.
(b)
The proposed regulated activity is consistent with the land
use regulations applicable in the Town of Smithtown pursuant to § 24-0903
of Article 24 of the State Environmental Conservation Law.
(c)
The proposed regulated activity is compatible with the public
health and welfare.
(d)
The proposed regulated activity is reasonable and necessary.
(e)
There is no reasonable alternative for the proposed regulated
activity on a site which is not a freshwater wetland or adjacent area.
(2)
The applicant shall have the burden of demonstrating that the proposed
regulated activity will be in accord with the standards set forth
in this subsection.
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 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 the 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.
A.
Any permit issued pursuant to this Article may be issued with conditions.
Such conditions may be attached as are necessary to assure the preservation
and protection of affected freshwater wetlands and to assure compliance
with the policy and provisions of this Article and the provisions
of the Agency's rules and regulations adopted pursuant to this
Article.
B.
Every permit issued pursuant to this Article shall contain the following
conditions:
(1)
The Agency shall have the right to inspect the project from time
to time.
(2)
The permit shall expire on a date certain.
(3)
The permit holder shall notify the Agency of the date on which project
construction is to begin, at least five (5) days in advance of such
date.
(4)
The Agency's permit shall be prominently displayed at the project
site during the undertaking of the activities authorized by the permit.
C.
The Agency shall set forth, in writing, in the file it keeps regarding
a permit application, its findings and the reasons for all conditions
attached to any permit.
In order to carry out the purpose and provisions of this Article,
the Agency shall have the following powers:
A.
To appoint officers, agents and employees, prescribe their duties
and qualifications and fix their compensation.
B.
To adopt, amend and repeal, after a public hearing (except in the
case of rules and regulations that relate to the organization or internal
management of the Agency), such rules and regulations, consistent
with this Article, as it deems necessary to administer this Article
and to do any and all things necessary or convenient to carry out
the purpose and policies of this Article.
C.
To contract for professional and technical assistance and advice.
D.
To hold hearings and subpoena witnesses in the exercise of its powers,
functions and duties provided for by this Article.
A.
To the greatest extent practicable, any public hearing held pursuant to § 170-9 of this Article shall be incorporated with any public hearing required by or pursuant to the New York State Town Law, Village Law, General City Law, General Municipal Law or Environmental Conservation Law relating to approvals or permits otherwise required for the undertaking of regulated activities on the freshwater wetland or adjacent area in question.
B.
No permit granted pursuant to this Article shall remove any person'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.
A.
The Agency may require that, prior to the commencement of work under
any permit issued pursuant to this Article, the permittee shall post
a bond with the Agency, in an amount determined by the Agency, conditioned
upon the faithful compliance with the terms of such permit and for
the indemnification of the Town of Smithtown for restoration costs
resulting from failure to so comply. Such bond shall be issued by
a corporate surety authorized to do business in the state and shall
be in favor of the Town of Smithtown. It shall remain in effect until
the Agency certifies that the work has been completed in compliance
with the terms of the permit or the bond is released by the Agency
or a substitute bond is provided.
B.
The Agency shall set forth, in writing, in the file it keeps regarding
a permit application, its findings and reasons for imposing a bond
pursuant to this section.
A.
The Agency may suspend or revoke a permit issued pursuant to this
Article where it finds that the permittee has not complied with any
or all 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 application.
B.
The Agency 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. Any person who violates, disobeys or disregards
any provision of this Article, including any provision of any permit
issued pursuant to this Article or any rule or regulation adopted
by the Agency pursuant to this Article, shall be liable to the people
of the state for a civil penalty not to exceed three thousand dollars
($3,000.) for every such violation, to be assessed, after a hearing
or opportunity to be heard upon due notice and with the rights to
specification of the charges and representation by counsel at such
hearing, by the Agency. Such penalty may be recovered in an action
brought by the Attorney General at the request and in the name of
the Agency in any court of competent jurisdiction. Such civil penalty
may be released or compromised by the Agency before the matter has
been referred to the Attorney General, and such penalty may be released
or compromised and any action commenced to recover the same may be
settled and discontinued by the Attorney General with the consent
of the Agency. In addition, the Agency shall have the power, following
a hearing held in conformance with the procedures set forth in § 71-1709
of the State Environmental Conservation Law, to direct the violator
to cease his or her violation of this Article and to restore the affected
freshwater wetland to its condition prior to the violation, insofar
as that is possible within a reasonable time and under the supervision
of the Agency. Any such order of the Agency shall be enforceable in
an action brought by the Attorney General at the request and in the
name of the Agency in any court of competent jurisdiction. Any civil
penalty or order issued by the Agency 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 an order, permit, rule
or regulation of the Agency regulating freshwater wetlands and adjacent
areas pursuant to this Article shall, in addition, for the first offense,
be guilty of a violation punishable by a fine of not less than five
hundred dollars ($500.) nor more than one thousand dollars ($1,000.);
for a second and each subsequent offense, he or she shall be guilty
of a misdemeanor punishable by a fine of not less than one thousand
dollars ($1,000.) nor more than two thousand dollars ($2,000.) or
a term of imprisonment of not less than fifteen (15) days nor more
than six (6) months, or both. Instead of these punishments, any offender
may be punishable by being ordered by the court to restore the affected
freshwater 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 Agency. Each offense shall be a separate and
distinct offense and, in the case of a continuing offense, each day's
continuance thereof shall be deemed a separate and distinct offense.
A.
The Attorney General, upon his or her own initiative or upon complaint
of the Agency, shall prosecute persons alleged to have violated any
such order of the Agency pursuant to this Article.
B.
The Agency shall have the right to seek equitable relief to restrain
any violation or threatened violation of any provisions of this Article.
A.
Any decision or order of the Agency, or any officer or employee thereof,
made pursuant to or within the scope of this Article may be reviewed
at the instance of any person affected thereby, including but not
limited to any owner of the affected wetland or adjacent area and
any resident or citizen of the Town of Smithtown, by the Board in
accordance with Title 11 of Article 24 of the State Environmental
Conservation Law, provided that such review is commenced by the filing
with the Board of a notice of review within thirty (30) days after
service of such order or notice of such decision given, as the case
may be.
B.
Any party to any proceeding before the Agency may make an appeal
to the Board in accordance with Title 11 of Article 24 of the State
Environmental Conservation Law from any order or decision of the Agency,
or any officer or employee thereof, issued or made pursuant to or
within the scope of this Article, provided that such appeal is commenced
by the filing with the Board of a notice of appeal within thirty (30)
days after service of such order or after notice of such decision
given, as the case may be.
C.
Any decision or order of the Agency, or any officer or employee thereof,
made pursuant to or within the scope of this Article may be reviewed
at the instance of any person, including but not limited to any owner
of the affected wetland or adjacent area and any resident or citizen
of the Town of Smithtown, in accordance with Article 78 of the State
Civil Practice Law and Rules, provided that such review is commenced
within thirty (30) days of the filing of such decision or order; and
the limitation upon the availability of such remedy as prescribed
in § 7801 of the Civil Practice Law and Rules shall not
be applicable to the applications for review of determinations and
orders made pursuant to this Article.
D.
The institution of a judicial proceeding to review a determination
or order of the Agency shall preclude the institution of proceeding
before the Board to review such a determination or order. The availability
of such review by the Board shall not affect the right of any person
to seek review of a determination of the Agency as provided in Article
78 of the State Civil Practice Law and Rules.
This Article shall take effect upon the filing with the Clerk
of the Town of Smithtown of the final Freshwater Wetlands Map of the
State Department of Environmental Conservation pursuant to § 24-0301
of the New York State Environmental Conservation Law applicable to
any or all lands within the Town of Smithtown.
