[HISTORY: Adopted by the Board of Trustees
of the Village of Briarcliff Manor 2-16-2021 by L.L. No. 3-2021.
Amendments noted where applicable.]
This chapter shall be known as the "Wetlands Protection Law
of the Village of Briarcliff Manor."
The public policy of the Village of Briarcliff Manor is to preserve,
protect and conserve wetlands ("wetlands") and watercourses and the
benefits derived therefrom, prevent the despoliation and destruction
of wetlands, and regulate the development of such wetlands, watercourses,
and their buffers to secure their natural benefits, consistent with
the general welfare and beneficial economic, social and agricultural
development of the Village. The Village of Briarcliff Manor shall
exercise its authority pursuant to Article 24 of the State Environmental
Conservation Law as such law may from time to time be amended.
A.
Wetlands and watercourses provide multiple benefits, including:
(1)
Flood control by stormwater absorption and storage;
(2)
Wildlife habitat by providing breeding, nesting and feeding grounds
and cover for many forms of wildlife, including endangered and rare
species;
(3)
Protection of groundwater and surface water resources and provision
for valuable watersheds and groundwater recharge areas;
(4)
Recreation by providing areas for fishing, boating, hiking, wildlife
watching, nature study, photography, camping and other uses;
(5)
Pollution treatment by serving as biofiltration basins;
(6)
Erosion control by serving as sediment and organic matter entrapment
and detention areas and stream bank and shoreline stabilization;
(7)
Education and scientific research by providing readily accessible
outdoor biophysical laboratories, living classrooms and training and
education resources;
(8)
Open space and aesthetic values; and
(9)
Sources of nutrients in freshwater food cycles, fish nurseries and
food sources for both aquatic and terrestrial organisms.
B.
Wetlands can play an important role in our approach to climate change
adaptation, through capturing and storing carbon to reduce atmospheric
greenhouse gases, and providing resilience to hazards such as drought
conditions, flooding, storm surge and coastal inundation.
C.
Wetlands form an ecosystem which is not confined to any one property
owner or neighborhood. Effective wetlands protection requires uniformity
of preservation and conservation throughout the Village.
D.
Without regulation and oversight, wetlands in the Village will be
lost, despoiled or impaired by draining, dredging, filling, excavating,
building, pollution and other acts inconsistent with the natural uses
of such areas.
E.
The conservation and regulation of wetlands is critical to maintain
the many benefits they provide to the Village.
As used in this chapter, the following terms shall have the
meanings indicated:
A building, the use of which is incident to that of the principal
building and located on the same lot, or a wall, driveway, or drive.
Any person who files an application for any permit issued
pursuant to this chapter, including a property owner, an authorized
agent or a contract vendee.
Clearing of vegetative cover, including trees, shrubs and
herbaceous ground cover. Annual tree pruning, mowing of a meadow,
and shrub trimming is encouraged and considered to be a part of a
beneficial wetland maintenance.
Barriers which control or restrict the flow or raise of water
in ponds, lakes, streams or other natural or man-made drainageways
and/or water bodies.
An organism that causes ecological or economic harm in any
environment where it is not native, as defined by the State of New
York, or the County of Westchester, or as otherwise adopted by the
Village of Briarcliff Manor through resolution of the Board of Trustees.
Water bodies, drainageways, or wet areas which are purposefully
created or induced for the purpose of stormwater detention, conveyance
and/or discharge, flood control/prevention, recreational and/or ornamental
purposes. Such areas/features have one or more of the following characteristics:
Artificially irrigated areas that would revert to upland should
irrigation cease.
Artificial lakes, reflecting pools, swimming pools or ponds
with a concrete bottom or liner created by excavating and/or diking
dry land.
Water-filled depressions created incidental to construction
activity.
Groundwater drained through subsurface drainage systems and
erosional features (gullies and rills), and swales and ditches that
are not naturally fed by groundwater, but are used for drainage discharge.
Such drainage ditches support flow for no longer than a rain event.
The Planning Board of the Village of Briarcliff Manor.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be harmful to humans, plants, animals or property.
A building in which is conducted the principal use of the
lot on which it is situated.
Any action or series of actions which may result in direct
or indirect physical impact on a wetland, including, but not limited
to, any regulated activity.
A person, with demonstrable education or experience acceptable
to the approval authority, including those who have special knowledge
of:
Identification and distribution of native plants and vegetative
associations in wetland and upland systems and the methods to describe,
classify and delineate vegetative species and associations;
The natural, physical, and biological sciences applicable to
the genesis and morphology of soils as natural bodies and of the methods
to describe, classify and map soil units; or
Field indicators of wetland hydrology, capable of identifying
and measuring groundwater table.
Any potentially detrimental activity conducted within a wetland,
watercourse, or buffer area, including i) any form of draining, dredging,
excavation, or removal of soil, mud, sand, shells, gravel or other
aggregate, either directly or indirectly; ii) any form of dumping,
filling, or depositing of any soil, stones, sand, gravel, mud, rubbish
or fill of any kind, either directly or indirectly; iii) erecting
any building, structure or roadway, driving any pilings, or placing
any other obstructions; iv) introducing or worsening any pollution
or disturbance, including, but not limited to, installing a septic
tank, running a sewer outfall, discharging sewage treatment effluent
or other liquid wastes; v) subdividing land; vi) locating animal feedlots
or pens, manure stockpiles or similar animal storage areas; or vii)
any other activity which may substantially impair one or more functions
provided by wetlands or the benefits derived therefrom.
The State of New York.
The Village of Briarcliff Manor, New York.
The Village Engineer of the Village of Briarcliff Manor.
Any natural public or private water body or water segment,
including but not limited to rivers, streams, ponds, lakes, reservoirs,
brooks and waterways, that is contained within, flows through, or
borders on the Village of Briarcliff Manor.
An area extending 100 feet horizontally away from and parallel
to the further of i) the outermost boundary of a wetland and/or watercourse,
and ii) the point of mean high water of any watercourse.
A regulated area that comprises at least two of the three following
elements:
Hydric soils which are poorly drained;
Wetland hydrology in areas supported by predominantly high groundwater
table, inundation or saturation by natural surface water or groundwater
at a frequency and duration sufficient to support, and that under
normal circumstances does support, prevalence of hydrophytic vegetation;
Hydrophytic vegetation, including hydrophytic plants typically
adapted for life in saturated or inundated soil conditions.
Wetlands generally include swamps, marshes, bogs, vernal pools,
wet meadows, fens and similar areas.
For the purposes of this regulation, wetlands are delineated
in accordance with the methodology, but not the area limitations,
set forth in 6 NYCRR Part 664 and in the 1989 Federal Wetlands Delineation
Manual, as may be subsequently amended.
For the purposes of this chapter, regulated wetlands may include
detention, infiltration and retention basins, installed to facilitate
drainage or as mitigation for flooding, and other man-made or created
wetlands, as defined hereunder, when such manufactured wetlands are
characterized by all three elements above, and present functioning
and benefits consistent with a natural wetland.
The presence and extent of regulated wetlands/watercourses on
a site shall be determined based on the evaluation of the existing
site conditions through soil sampling, observation of local hydrology
and vegetative cover.
The following regulated activities are permitted, by right,
in or upon a wetland, watercourse, or a buffer area thereto, except
where the Village Engineer submits written notification to the property
owner that, in his sole judgement, an application and review for a
permit may be required to assure that the intent of this chapter is
not violated:
A.
Outdoor recreation where otherwise legally permitted, including nature
study, hiking, horseback riding, swimming, skin diving, boating, and
fishing.
B.
Trapping, where legally permitted and when performed by a licensed
authority.
C.
Normal ground maintenance of existing landscaped areas and residential
gardens without the use of synthetic fertilizers, pesticides and herbicides
in any wetlands, including existing lawn areas, and trimming and removal
of dead or diseased vegetation.
D.
Operation and maintenance of such dams and water control measures
and devices, including retaining walls, terraces, sluices, and culverts,
that were in existence on the effective date of this chapter, or are
thereafter approved pursuant to the procedures provided for in this
chapter.
E.
Incidental removal of brush and trees, selective trimming and pruning
in previously landscaped areas to improve the health or appearance
of vegetation, and normal land maintenance and conservation measures
to sustain or enhance wetland functions.
F.
Removal of less than 500 square feet of invasive species.
G.
Public health activities required by orders or regulations of the
State or County Department of Health.
H.
Activities required by, and 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 chapter will be applied by said bodies in
determining whether to issue a certificate of environmental compatibility
and public need under such articles.
I.
Repair of existing fences, walkways, walls, decks, porches, or other
existing site appurtenances.
J.
Repairs, sealing, and repaving existing impervious surfaces, including
driveways, drives, pathways, and sidewalks that provide access from
a public street to a private property.
K.
Maintenance of existing drainage channels where impediment of flow
may cause flooding or threaten public safety on roadways, structures,
or other properties.
L.
Use of organic herbicides, pesticides or fertilizers in a buffer
area in accordance with manufacturers' recommendations and accepted
horticultural practices.
M.
Decorative planting in a buffer area, excluding the planting of any
invasive species.
N.
Temporary use of portable generators.
O.
Placement of swings, portable swimming pools, and other playground
equipment associated with a one- or two-family dwelling or multiple
single-family dwellings (such as townhouses), where such pools are
designed for a water depth of less than 24 inches and do not require
a building permit.
P.
In situ repair, renovation or maintenance of any legally authorized
structure existing prior to the adoption of this chapter, including
any principal building, accessory structure, swimming pool or sports
court, pipes, wells, service lines, conduits, cables, or any other
constructed facility within a wetland, watercourse, or adjacent buffer
area that does not disturb the soil, hydrology or existing vegetation.
Q.
Any actual and ongoing emergency activity, as determined by the Village
Engineer, that is immediately necessary for the protection and preservation
of life or property.
A.
Activities within or upon a wetland/watercourse or anywhere within
a buffer area that may be approved by the Village Engineer:
(1)
Construction of walls, where the construction of said wall will not
inhibit or alter the natural drainage flow or cause the blocking or
damming of surface water, or otherwise impede the beneficial functions
of wetlands.
(2)
Maintenance, repair or in situ reconstruction of sewage disposal
facilities.
(3)
Fences without mesh, provided:
(4)
Field changes to unexpired permits issued by the Planning Board.
(5)
Restoring land elevations that have been altered by erosion or storm
damage where the total amount of material relocated or added does
not exceed 25 cubic yards and such restoration has no negative impact
on the flood flows prior to such erosion or storm damage.
(6)
Repair, or replacement in situ, of any existing septic tank or maintenance
of any septic leaching field located within the regulated wetland
or adjacent buffer area, provided there is no additional impact on
flood flows.
(7)
Removal of more than 500 square feet but less than 1,000 square feet
of invasive species. Such removal shall be associated with a management,
soil erosion and sediment control, and revegetation plan.
(8)
Installation of a generator powered by natural gas or liquid propane,
subject to all other applicable regulations.
(9)
Routine skimming or dredging of any water body as part of regular
maintenance or decontamination to preserve or improve the natural
benefits of such water body or surrounding buffer area. Nothing herein
shall supersede any permitting requirements required for dredging
or skimming a water body regulated or protected by the New York State
Department of Environmental Conservation, or any other relevant governmental
authority.
(10)
Mosquito control projects that have no adverse impacts upon
the wetlands.
(11)
Depositing or introducing synthetic chemicals, including but
not limited to fertilizers, pesticides, herbicides and fungicides.
(12)
Consideration of the first renewal of a wetlands permit or an
extension thereof for one year or less, provided:
(13)
Any otherwise permitted activities within the buffer area where
the applicant demonstrates, to the satisfaction of the Village Engineer,
that there will be no direct or indirect impact associated with the
activity, and where the total project cost is estimated to be less
than $15,000, and where such activity does not require Planning Board
approval.
B.
Activities beyond the first 50 feet of a buffer area, that may be
approved by the Village Engineer.
(1)
Construction of patios, decks or porches with a total footprint no
greater than 200 square feet where no portion of such patio, deck,
or porch shall be located within the first 50 feet of a wetland buffer
and provided that only minor grading of no more than six inches in
depth is required for their construction other than for posts or footings.
(2)
Single-story movable sheds, without foundation or footings, with
a footprint of 150 square feet or less, provided:
A.
Activities in or upon a wetland/watercourse, or anywhere within a
buffer area, that may be approved by the Planning Board.
(3)
Draining, dredging, dewatering, excavation or removal of material,
either directly or indirectly, from streams, ponds, or other water
bodies within the Village, including any such activities beyond the
approval authority of the Village Engineer, where such activities
may maintain or improve the functions and benefits of the wetland,
watercourse or buffer area.
(4)
Dumping, filling or depositing of material, either directly or indirectly,
of any amount that may maintain or improve the functions and benefits
of the wetland, watercourse or buffer area, beyond any amounts permitted
as of right.
(5)
Alteration or grading of natural features and contours, alteration
of drainage conditions or diversion of any flow of a watercourse,
water body, marsh or swamp, to the extent such alterations and grading
do not create flooding or any negative environmental impacts on the
property, neighboring properties, and watercourses, and where such
activities may maintain or improve the functions and benefits of the
wetland, watercourse or buffer area.
(6)
Installation of a septic tank, the running of a sewer outfall, or
the discharging of liquid waste, or creation of any septic leaching
field, all of which shall be allowed only where there is no additional
impact on flood flows, and when there is no practicable alternative
outside of a wetland, watercourse and/or buffer area.
(7)
Construction of docks, dams and water control measures and devices,
pilings or bridges, whether or not they change the natural drainage
characteristics.
(8)
Installation or relocation of any privately owned utility lines,
service lines, cable conduits, pipes or wells.
(9)
Construction of pervious or impervious driveways or roads, but only
where no alternative access can be provided outside of a wetland,
watercourse and/or buffer area.
(10)
Clear-cutting or the cutting or removal of any healthy plant,
or the removal (by nonchemical means) of invasive species exceeding
the limits of approval of the Village Engineer.
B.
Activities beyond the first 50 feet of a buffer area that may be
approved by the Planning Board:
(1)
Construction of patios, decks or porches, including those with a
total footprint greater than 200 square feet where no portion of such
patio, deck, or porch shall be located within the first 50 feet of
a wetland buffer, including where any such construction may require
grading.
(2)
Construction or placement of single-story movable sheds, including
those sheds with a footprint greater than 150 square feet or where
grading may be required for installation, and, in all cases, where
such sheds are not used for the storage of gasoline, oil, pesticides
or other chemicals or toxic substances or any tools, machinery or
equipment which use any such substances.
(3)
Construction or placement of tennis courts, sports courts, swimming
pools, and any filter, heater, pump, water treatment device, or similar
pool or spa accessory equipment, other than those powered by gasoline
or diesel fuel, but only where i) there is no practical alternative
for placement beyond the wetland buffer area or further from the wetlands;
ii) impacts to wetland or buffer areas have been minimized to the
maximum extent practicable, including by repositioning the structure
or diminishing its size; and iii) the applicant complies with a mitigation
plan required by the Planning Board.
(4)
Alterations, including modifications or expansion of the footprint thereof, of any legal preexisting structure, or walls, driveways, and drives, but only where the Planning Board confirms such alteration would be consistent with the intent of this chapter and would conform to the requirements of § 218-9D, and in no case increasing the original gross floor area of such preexisting structure by more than 25% or the original preexisting footprint within the wetland or buffer area by more than 10%.
A.
An approval authority may, at its sole discretion and at the applicant's
expense, require a wetland delineation in the field and a wetland/watercourse
delineation report prepared by a qualified professional, and surveyed
by a professional land surveyor if necessary, to determine if an application
for a building permit, site plan, subdivision, or any other land use
approval includes regulated activities subject to a wetlands application
and approval as further specified herein.
B.
Whenever an application for a building permit, site plan, subdivision,
or any other land use approval is proposed within 200 feet of the
outermost boundary of any wetland/watercourse (100 feet from any wetland
buffer area) known to the Village, an on-site wetland determination
by an approval authority, and/or a qualified professional, and at
the applicant's sole expense, shall be required to establish
if such application includes regulated activities subject to a wetlands
application and approval. For guidance to applicants, wetlands and
buffer areas known to the Village shall include, but not be limited
to, those shown on either of the following:
(1)
The map of regulated wetlands published by the New York State Department
of Environmental Conservation pursuant to § 24-0301 of the
State Environmental Conservation Law; or
(2)
A GIS based map prepared on behalf of the Village of Briarcliff Manor
that includes, among other layers, "NYS Regulated Wetlands," "Hydric
Soils," "National Wetlands Inventory (NWI)," "Streams," associated
buffers, or any other layers. Such map may include any locally delineated
wetlands map created, maintained, or accepted by the Village Engineer
and previously approved by a resolution of the Village Board of Trustees.
Such map is hereby adopted by the Village of Briarcliff Manor which
shall be modified from time to time.
C.
Completed applications for permits to conduct any regulated activities
subject to review by any approval authority shall be submitted to
the Building Department, in sufficient copies as determined by the
Village Engineer, and shall include the following:
(1)
Name, address, email and telephone number of property owner and,
if different, the applicant's name and relationship (owner, lessee,
licensee, etc.) of the applicant to the owner. If the applicant is
not the owner of record, the notarized written consent of the owner
must be attached.
(2)
Street address and Village tax map designation of the property covered
by the application.
(3)
Statement of the specific purpose, nature and scope of the activity
proposed.
(4)
The property owner's permission to allow authorized Village
personnel, including the Planning Board, to visit the site for review
and ongoing compliance.
(5)
When required, a wetland/watercourse delineation report prepared
by a qualified professional, completed no more than 12 months earlier,
including:
(a)
A site-specific field delineation (prepared by a professional
surveyor) indicating the location and quality of all wetlands, watercourses,
and buffers on the property;
(b)
For applications requiring Planning Board review, on-site flagging
of wetland boundaries and buffers, placed by a professional surveyor,
in preparation for a mandatory on-site review;
(c)
For any matter subject to the approval of the Planning Board,
a detailed wetland/watercourse assessment report, including wetland
delineation methodology, site description, photos, and descriptions
of soil type, vegetative cover, site hydrology and existing benefits
provided by the wetlands, using a criteria and classification system
similar to that of 6 NYCRR 664.5, including descriptive detail justifying
such classification.
(6)
Detailed plans for the proposed regulated activities drawn to a scale
of not less than one inch equals 30 feet, unless otherwise specified
by the approval authority. All plans shall be certified by an engineer,
architect, land surveyor or landscape architect licensed in the State
of New York, and include the following:
(a)
Location of construction or area proposed to be disturbed and
its relation to property lines, buildings, roads, wetlands and watercourses
within 250 feet.
(b)
Estimated quantities of material of excavation or fill.
(c)
Location and depth of any utilities, well, sewage or wastewater
disposal system within 100 feet of the disturbed area.
(d)
Existing and adjusted contours at two-foot intervals in the
proposed disturbed area and to 100 feet beyond.
(e)
Details of any drainage system proposed, both for the conduct
of the work and after completion thereof and measures proposed to
control erosion and siltation both during and after the work. The
plan shall show a well-defined construction envelope marking the limit
of site disturbance, designated stockpile areas, and parking areas
for contractor vehicles, and shall identify the construction access
and location for the anti-tracking pad. Methods and time table for
site stabilization should be provided.
(f)
Where creation of a lake or pond or alteration of a wetland
is proposed, details of the construction of any dams and water control
measures and devices, embankments and outlets. The sediment dewatering
site should be indicated and how the dredge spoils will be used and/or
disposed. Sediment testing may be required for pond dredging.
(g)
A property location map.
(h)
Where an existing septic system is located in wetlands or a
wetland buffer on the property, evidence of periodic cleaning within
the previous two years.
(i)
An appropriate mitigation plan prepared by a qualified professional,
as may be further defined, if requested by the approval authority.
(j)
Other necessary details as may be requested by the approval
authority.
(8)
Copies of all applicable state or federal permits or permit applications
which are required for such work or improvement, unless such permits
are conditioned upon obtaining a permit under this chapter.
(9)
Application fees, including engineering and inspection fees, and, if required, advanced funding of any required escrow account for application review, consistent with Chapter 122, and as set forth in the Master Fee Schedule as approved by the Village Board of Trustees.
(10)
Notification of application. Proof of notification by certified
mail to all abutting property owners and to all owners of the property
situated directly across a street from the subject property, and any
other property owners as the approval authority may determine. The
applicant shall be responsible for the cost of publication and delivery
of such notice. Such notice shall include a plain-language description
of the proposed application.
(11)
The Village Engineer may limit or waive any of the above required
submissions for any application that does not require referral to
the Planning Board if the Village Engineer is satisfied that the proposed
activity is within his approval authority and meets all conditions
for approval under this chapter.
A.
Disposition by Village Engineer. The Planning Board, at its discretion, may waive its power of review and approval in cases where the Planning Board determines that the proposed nature or scope of such regulated activity is such that the application should be handled administratively by the Village Engineer. In such cases, the Planning Board shall direct the Village Engineer to decide the matter in accordance with the normal administrative procedures for applications submitted pursuant to the requirements of § 218-8 of this chapter.
B.
Public hearings and notice. Any review by the Planning Board pursuant
to this chapter that may require a public hearing may hold such public
hearing contemporaneously with the public hearings of any associated
subdivision or site development plan application. Within 62 days of
the closing of the public hearing held in consideration thereof, the
Planning Board shall render a decision to approve, approve with modifications
or conditions, or disapprove the issuance of a permit for the proposed
activity.
C.
Pending condemnation. A duly filed notice in writing to any approval
authority that the State of New York or any agency or subdivision
thereof is in the process of acquiring, by condemnation or negotiation,
any affected wetland, watercourse, or adjacent buffer area shall be
sufficient basis for denying a permit for an activity proposed to
be located on such wetland or watercourse or adjacent buffer area.
D.
In approving, denying or conditioning any permit, the approval authority shall evaluate the application with reference to the protection or enhancement of the functions and value of the affected wetlands, watercourses, and buffer areas and the benefits they provide, which are generally described in § 218-3. The approval authority shall provide written findings detailing the reasons for denying or conditioning any permit. Factors to be considered when evaluating an application shall include, but are not limited to:
(1)
The proposed regulated activity is consistent with the declaration
of policy and findings of this chapter.
(2)
The potential direct and indirect impacts of any regulated activity
on neighboring land use and wetlands, watercourses, and buffer area
functions.
(3)
Any impacts of any proposed regulated activity on existing wetlands,
watercourses, and buffer areas, and the cumulative effect when combining
reasonably anticipated future activities, in or near the wetlands,
watercourses, and their buffers.
(4)
There are no prudent and feasible alternatives to the proposed regulated
activity, and there is no practicable alternate site for the proposed
regulated activity in another area of the subject area that is not
a wetland, watercourse, or buffer area.
(5)
The proposed regulated activity will not create a public nuisance,
or have any deleterious effect on the health, safety or welfare of
the Village of Briarcliff Manor or its neighboring communities.
(6)
The proposed regulated activity has adequate safeguards for the protection
and preservation of the environment and for the proper maintenance
of any wetlands and watercourses and the natural functions of and
the benefits derived from such areas.
(7)
The proposed regulated activity has adequate safeguards employing
the best available technology to protect the potable fresh surface
water and groundwater supplies of the Village from drought, pollution,
overuse and other forms of misuse.
(8)
The proposed regulated activity has been planned, designed or constructed
so as to create minimal disturbance; to prevent or mitigate damage
from erosion, turbidity or siltation; to preserve the natural flora
and fauna and their habitat; to protect against flood and pollution
of the wetlands affected; and to minimize disturbance to floodplains
and other flood-prone areas.
(9)
Any additional information received during the public hearing, including:
(a)
Statements or comments offered by residents or interested parties.
(b)
Materials or comments from other Briarcliff Manor boards and
agencies and/or federal, state or other local governmental agencies.
(c)
Any other material requested by, or provided by, the Village
Engineer or a member of the Planning Board.
(10)
All applicable State Environmental Quality Review Act (SEQRA)
regulations have been satisfied.
E.
Referrals may be made to environmental consultants, the Briarcliff
Manor Conservation Advisory Council and/or to the Westchester County
Soil and Water Conservation District, as appropriate, to assist the
approval authority in evaluating potential impacts of the proposed
regulated activity.
F.
The approval authority shall deny a permit if the applicant fails
to demonstrate that 1) denial of the application would cause the applicant
to suffer undue hardship; and 2) any direct and indirect impacts have
been eliminated, or minimized, to the maximum extent practicable;
and 3) application approval shall not a) create a public nuisance
nor threaten the public health, safety or welfare; b) impair public
rights to the enjoyment and use of public lands and waters; c) threaten
a rare or endangered plant or animal species; d) maintain, enhance,
or cause the least possible damage, encroachment or interference with
the natural resources or functions of the wetland, watercourse and
buffer areas; and e) result in impediment or degradation of existing
flood flows, all of which are consistent with the purposes and requirements
of this chapter.
A.
After it has been determined by the Planning Board that impacts to wetland or buffer areas are necessary and unavoidable and have been minimized to the maximum extent practicable, the applicant shall develop a mitigation plan which shall specify mitigation measures that provide for replacement wetlands, on the original site, that recreate as nearly as possible the original wetlands in terms of type, functions, geographic location and setting, as determined by the original assessment performed under § 218-8C(5).
B.
Mitigation shall take the following forms, either singularly or in
combination, for disturbances in wetland/watercourse buffers and wetlands:
(1)
For disturbance in a wetland buffer area:
(a)
Implementation of preventative practices to protect the natural
condition and functions of the wetland; and/or
(b)
Restoration or enhancement (e.g., improving the density and
diversity of native woody plant species) of remaining or other upland
buffer to offset the impacts to the original buffer.
(2)
For disturbance in a wetland:
(a)
Restoration of areas of significantly disturbed or degraded
wetlands by reclaiming significantly disturbed or degraded wetland
to bring back one or more of the functions that have been partially
or completely lost by such actions as draining or filling, provided
the area of proposed mitigation occurs in a confirmed disturbed or
degraded wetland having significantly lesser functional values as
a result of disturbance or degradation; and/or
(b)
The in-kind replacement of impacted wetland by the construction
of new wetland, usually by flooding or excavating lands that were
not previously occupied by a wetland, that recreates as nearly as
possible the original wetland in terms of type, functions, geographic
location and setting; and
(c)
The surface area of the resulting wetland shall be larger than
the disturbed area of wetland by at least 50%.
C.
The approval authority shall monitor, or shall cause to have monitored,
projects, according to the specifications set forth in the permit,
to determine whether the elements of the mitigation plan and permit
conditions have been satisfied and whether the restored or created
wetland function(s) and acreage mitigate the impacted function(s)
and acreage. To this end, the approval authority may contract with
an academic institution, an independent research group, or other qualified
professionals, each at the expense of the applicant, or may use its
own staff expertise. An annual monitoring report prepared by the appropriate
monitor may be required by the approval authority. Mitigation projects
shall be monitored for an appropriate period of time, as determined
by the approval authority, on a case-by-case basis. Long-term monitoring
is generally needed to assure the continued viability of mitigation
wetlands. In general, the monitoring period shall be from three to
five years. The requirements for monitoring shall be specified in
the mitigation plan and may include, but not be limited to:
(1)
The time period over which compliance monitoring shall occur;
(2)
Field measurements to verify the size and location of the impacted
wetland area and the mitigation (restored or replacement) wetland
area;
(3)
The date of completion of the restoration and/or replacement; and
(4)
Field verification of the vegetative, hydrologic, and soils criteria
as specified in the mitigation plan and permit.
D.
If the approval authority requires a mitigation plan pursuant to § 218-10A hereof, the following shall apply:
(1)
All mitigation measures shall balance the benefits of regaining new
wetland areas with the loss to upland (nonwetland) areas caused by
wetland creation. On-site mitigation shall be the preferred approach;
off-site mitigation shall be permitted only in cases where an on-site
alternative is not possible and shall emphasize mitigation within
the same general watershed.
(2)
Mitigation plans developed to compensate for the loss of wetland
or wetland/watercourse buffer shall include baseline data as needed
to adequately review the effectiveness of this plan.
(3)
Any mitigation plan prepared pursuant to this section and accepted
by the approval authority shall become part of the permit for the
application to conduct a regulated activity.
E.
All mitigation plans shall include:
(1)
A map with sufficient detail and at a scale to be able to determine
where the wetland is located and its size, boundaries and topographic
features.
(2)
A narrative which describes goals and specific objectives for the
mitigation wetland or wetland/watercourse buffer, including the functions
and benefits to be provided and clear performance standards and criteria
for assessing project success.
(3)
A description of the physical, hydrological and ecological characteristics
of the impacted wetland and/or wetland/watercourse buffer and proposed
restored and/or created wetland and/or buffer in sufficient detail
to enable the approval authority to determine whether wetland and/or
buffer impacts will be permanently mitigated.
(4)
Details on construction, including:
(a)
Diking, excavation, or other means by which the wetland will
be restored or created, including existing and proposed topographic
contours;
(b)
Construction schedule;
(c)
Measures to control erosion and sedimentation during construction;
(d)
Plantings: source of stock, procedures for transplanting/seeding
the stock, areas to be planted, and planting schedule. If vegetation
from the wild is to be used, identify the source and measures to prevent
introduction of undesirable exotics.
(e)
Chemicals: if applicable, explain why chemicals will be used
and precautions to be taken to minimize their application and protect
the wetland and/or watercourse from excessive chemicals.
(5)
Details on management of the mitigation site, including the creation
and ongoing, continual maintenance of:
(a)
Measures to assure persistence of the wetland (e.g., protection
against predation by birds and other animals);
(b)
Vegetative management;
(c)
Sediment and erosion control;
(d)
Plans for monitoring the site during and after construction,
including methods and schedule for data collection and provisions
for midcourse corrections;
(e)
Provisions for long-term protection of the site (e.g., permanent
conservation easement);
(f)
Provision for bonding or other financial guarantees.
(6)
A description of the periodic reporting, including at the end of
construction, during the monitoring period and at the end of the monitoring
period.
(7)
Identify the name, qualifications and experience of the person(s)
implementing the mitigation plan (i.e., contractor who will restore
or construct the wetland).
A.
The approval authority may require that, prior to commencement of
work under any permit issued pursuant to this chapter, the applicant
or permittee shall post a bond in an amount and with surety and conditions
sufficient to secure compliance with the conditions and limitations
set forth in the permit. The particular amount and the conditions
of the bond shall be consistent with the purposes of this chapter.
The bond shall remain in effect until the approval authority or its
designated agent certifies that the work has been completed in compliance
with the terms of the permit and the bond is released by the approval
authority or a substitute bond is provided. In the event of a breach
of any condition of any such bond, the approval authority may institute
an action in the courts upon such bond and prosecute the same to judgment
and execution.
B.
The approval authority 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.
Prior to the granting of any permit or renewal herein, and as
a condition for the issuance thereof, the applicant shall pay the
associated fees as shall be set forth by resolution of the Village
Board of Trustees and published in the Master Fee Schedule.
A.
Permit expiration. All permits granted hereunder, unless otherwise
indicated, shall expire on completion of the project specified or,
unless otherwise indicated, shall be valid for a period of one year
from date of issuance, whichever occurs sooner. The Planning Board
may grant an initial term of up to two years if, in their sole discretion,
the project reasonably requires more time to be completed.
B.
Permit renewal. Upon written request of the applicant and payment
of a permit extension fee, the Village Engineer may renew a permit
for a period not to exceed one year, if authorized by the approval
authority.
C.
Transfer of permits. Permits may be transferred to new legal owners
of the affected property so long as the conditions and plans as approved
remain unchanged. Notice of such transfer of permit must be filed
with the Village Engineer within 30 days of the transfer.
D.
A regulated structure that was lawful prior to passage of this chapter
but which is not in conformity with the provisions of this chapter
may be continued subject to the following:
(1)
No such structure shall be expanded, changed, enlarged, or altered
in such a way that increases its nonconformity without a permit.
(2)
If any previously lawful, nonconforming structure is destroyed by
human activities or a natural catastrophe, such structure may be restored
in situ, but shall not be expanded, changed, enlarged, or altered
in any way that increases its nonconformity without a newly issued
permit. In issuing a building permit for the reconstruction of a previously
nonconforming structure, the Village Engineer may apply restrictions
or conditions on the construction process to ensure the least practicable
disturbance to wetlands, consistent with the intent and purposes of
this chapter.
E.
Nothing herein shall render unlawful any previous site plan approval,
subdivision approval, or building permit that was legally issued and
remains unexpired.
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.
A.
The Building Department may serve a written notice of violation upon
a property owner by personal delivery, or by posting such notice in
a conspicuous place upon the property affected, and suspend any permit
issued pursuant to this chapter, if the property owner i) has not
complied with any or all terms of such permit; ii) has exceeded the
authority granted in the permit; iii) has failed to undertake the
project in the manner set forth in the application; or iv) has otherwise
violated any provision of this chapter. If the property owner fails
to cure all violations to the satisfaction of the Village Engineer,
or fails, neglects, or refuses to comply with the notice of violation
within 30 days of service of such notice of violation, any permit
previously granted hereunder shall be revoked, and the property owner
shall be subject to the civil and criminal penalties below.
B.
Any person who i) undertakes any prohibited activity within a wetlands or wetlands buffer without a permit or ii) violates, disobeys or disregards any notice of violation as provided for in § 218-15A, shall be liable for a civil penalty not to exceed $3,000 for every such violation. Each consecutive day of the violation will be considered a separate offense. Before assessment of the civil penalty, the alleged violator shall be afforded a hearing before the Planning Board, upon due notice of the specific charges alleged, and with the right of representation by counsel. Such civil penalty may be recovered in an action brought by the Village in any court of competent jurisdiction. Such civil penalty may be released or compromised by the Village, and any action commenced to recover the same may be settled and discontinued by the Village.
C.
In addition to the above civil penalty, any person who violates any
provision of this chapter shall be guilty of a violation punishable
by a fine of not less than $500 nor more than $1,000. For a second
and each subsequent offense, the violator shall be guilty of a violation
punishable by a fine of not less than $1,000 nor more than $2,000.
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.
D.
Any court of competent jurisdiction shall also have the power, following a hearing, to direct a violator to cease violation of this chapter and, under the Planning Board's supervision, to restore satisfactorily the affected wetlands/watercourse and/or buffer area to its condition prior to the violation, insofar as that is possible, within a reasonable time. Exercising of such power may be with or without the imposition of a fine or civil penalty under Subsections B and C hereof.
E.
The Village shall have the right to seek equitable relief to restrain
any violation or threatened violation of any provision of this chapter
and to compel the restoration of the affected wetlands or wetlands
buffer to its condition prior to the violation of the provisions of
this chapter.
F.
The Village Engineer, or his designee, is hereby authorized to issue
appearance tickets and summonses for violations of this chapter.
A.
An applicant may appeal any decision of the Village Engineer by applying
to the Planning Board within 30 days after the decision of the Village
Engineer.
B.
An applicant may appeal any decision of the Planning Board by commencing
an action pursuant to Article 78 of the Civil Practice Law and Rules
within 30 days after the date the decision of the Planning Board is
filed with the Village Clerk.
The provisions of this chapter shall be severable, and if any
clause, sentence, paragraph, subdivision or part of this chapter shall
be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder
thereof but shall be confined in its operation to the clause, sentence,
paragraph, subdivision or part thereof directly involved in the controversy
in which such judgment shall have been rendered.
This chapter repeals and replaces all previously enacted Village
of Briarcliff Manor wetlands/freshwater wetlands laws.
