Town of Wappinger, NY Article XII Mandatory Private Well Testing

[Adopted 7-13-2007 by L.L. No. 8-2007[1]; amended in its entirety 10-9-2007 by L.L. No. 15-2007[2]]

[1] Editor's Note: This local law also renumbered former Art. XII, Enforcement, consisting of § 234-64, Responsibility for enforcement, as Art. XIII, § 234-72.

[2] Editor's Note: This local law also stated that it shall become effective 10-1-2007 or upon filing with the Secretary of State, whichever is later.

§ 234-64 Title.

This article shall be known as "Mandatory Private Well Testing."

§ 234-65 Legislative background; statement of purpose.

A. This article is enacted pursuant to the powers vested in the Town of Wappinger by Municipal Home Rule Law § 10, Town Law § 130, Subdivision 5, and Public Health Law §§ 302, 308 and 347, Subdivision 1c.

B. The Town Board of the Town of Wappinger enacts this article for purposes of requiring mandatory private well testing for all properties in the Town of Wappinger that rely on a private water supply which is utilized for purposes of human consumption. It is also the purpose of this article to establish minimum water quality standards for private water sources servicing residential and nonresidential properties and to mandate water testing standards to assure purchasers and tenants of residential and nonresidential properties serviced by private wells that the water supplied to these properties will be potable and free from harmful contaminants. These water quality standards will also apply to multifamily residential properties and commercial properties not otherwise subject to regulation and testing pursuant to Part 5 of the New York State Sanitary Code. The water test results shall be filed with the Town of Wappinger Building Department and the Dutchess County Health Department and will also serve as a data base for identifying potential problem areas of contamination within the Town.

§ 234-66 Definitions.

A. The following words and terms, when used in this article, shall have the following meanings unless the context clearly indicates otherwise:

COMMUNITY WATER SYSTEM

A public water system which serves at least five service connections used by year-round residents or regularly serves at least twenty-five-year-round residents, as defined in § 5-1.1 of the New York State Sanitary Code.

MULTIFAMILY RESIDENTIAL RENTAL PROPERTY

Residential property containing three or more rental units.

NONCOMMUNITY WATER SYSTEM

A public water system that is not a community water system, as defined in § 5-1.1 of the New York State Sanitary Code.

NONRESIDENTIAL PROPERTY

Any structure which is wholly or partially used or intended to be used and occupied for commercial purposes, including, but not limited to, office buildings, stores, markets, shops and malls engaged in retail sales, marinas, restaurants, clubs, gas stations, or car dealerships, etc., which establishments have a water system intended for human consumption.

NONTRANSIENT NONCOMMUNITY WATER SYSTEM

A public water system that is not a community water system but is a subset of a noncommunity water system that regularly serves at least 25 of the same people, four hours or more per day, for four or more days per week, for 26 or more weeks per year, as defined in § 5-1.1 of the New York State Sanitary Code.

PARTY

Shall mean either the seller or the purchaser of real property according to a contract of sale. "Party" shall include both male and female and be considered single or plural depending on its context. "Party" shall also include legal entities and organizations.

POTABLE WATER

Water suitable for drinking and fit for human consumption in accordance with standards established by the Dutchess County Department of Health and the New York State Department of Health.

PRIVATE WATER SUPPLY

Any water supply utilized for the purposes of human consumption not identified as a public water supply by Article 5 of this Code or by Part 5 of the New York State Sanitary Code.

PUBLIC WATER SYSTEM

A community or noncommunity or nontransient noncommunity water system which provides water to the public for human consumption through pipes or other constructed conveyances if such system has at least five service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year. Such term includes:

(1) Collection, treatment, storage and distribution facilities under control of the supplier of water of such system and used with such system; and

(2) Collection or pretreatment storage facilities not under such control which are used with such system.

PURCHASER

"Purchaser" and "buyer" shall have the same meaning and shall mean a purchaser or buyer of real estate pursuant to a written contract.

RESIDENTIAL PROPERTY

Any owner occupied one- or two-family dwelling unit(s).

RESIDENTIAL RENTAL PROPERTY

Any residential structure or dwelling consisting of two or less dwelling units, which is not occupied by the owner(s) as a principal residence, for which rent or consideration is periodically paid to the owner for the use or occupation of all or part thereof.

TENANT

Any person or entity which leases property for either residential or commercial purposes.

WAPPINGER WELL TESTING PROTOCOL

Standards, procedures, test parameters and maximum contaminant levels for all well water used for human consumption in the Town of Wappinger.

WELL

A privately owned well used to supply potable drinking water to residential premises or nonresidential establishments; it does not include wells that supply water pursuant to § 5-1.1 of the New York State Sanitary Code as a community water system or a noncommunity water system.

B. This article hereby adopts the definitions contained in the New York State Sanitary Code Part 5 and contained in the Town of Wappinger Code as the same may be amended hereafter from time to time.

§ 234-67 Well testing.

A. Residential properties.

(1) Well testing in accordance with the terms of this article is hereby required for all residential properties that are provided with water from a private water supply, not otherwise exempted under this article. Such well testing must occur prior to a sale or exchange of the property after the effective date of this article. The purchaser shall be responsible for the cost of such testing.

(2) The certified test results shall be filed with the Town of Wappinger Building Department and a copy shall be sent to the parties and an additional copy shall be forwarded to the Dutchess County Health Department. Certified test results for the property shall be valid for 36 months and may be used for subsequent sales purchases or exchanges within said thirty-six-month period.

B. Residential rental properties, multifamily residential rental properties and nonresidential properties.

(1) Well testing in accordance with the terms of this article is hereby required for all residential rental properties, multifamily residential rental property and nonresidential properties that are provided with water from a private water supply, not otherwise exempted under this article. The landlord or owner shall be required to test his or her private wells and file the certified test results with the Town of Wappinger Building Department within 12 months of the effective date of this article, or prior to any sale or exchange of the property after the effective date of this article, if not previously filed.

(2) The owner or landlord shall be required to forward a copy of the certified test results to the Dutchess County Health Department and to the purchaser, tenants or occupants of the property, if any. Together with the certified results filed with the Town of Wappinger Building Department, the owner or landlord shall file a list of all then-existing purchasers, tenants, other occupants, if any, of the subject property and proof that each such person or entity was provided with a copy of the certified test results.

(3) Certified test results filed with the Building Department shall be valid for a period of three years from the date of filing. At the end of the three-year period, a new well test shall be required.

(4) Prior to entering into any lease for residential rental properties, multifamily residential rental properties or nonresidential properties, a landlord shall provide the tenant with a copy of the current certified test results on file with the Town of Wappinger Building Department, the landlord's failure to do so shall not be grounds to void the lease but shall subject the landlord to any and all penalties imposed pursuant to this article.

§ 234-68 Required tests.

A. Each water sample shall be analyzed in accordance with the Wappinger Well Testing Protocol (the Protocol) made a part of this article, copies of which shall be kept on file with the Town Clerk. The Town Board reserves the right to amend the Wappinger Well Testing Protocol by resolution.

B. Analytic testing and collection with a proper chain of custody shall be performed by a New York State certified laboratory and shall conform to the rules and regulations of the New York State Department of Health.

C. The required test parameters will have the same maximum contaminant levels as set forth in Part 5 of the New York State Sanitary Code for public water supplies.

D. Copies of the test results shall be sent to the parties, tenants or occupants and shall be filed with the Town of Wappinger Building Department and a copy forwarded to the Dutchess County Department of Health. Tests results shall also be available for public inspection and reproduction in the same manner as other public documents.

E. In the event any remediation is undertaken and a new well test is completed, the results thereof shall be filed with the Town of Wappinger Building Department.

§ 234-69 Exemption.

A. Any property which is serviced by a community and/or noncommunity water system as defined herein and in § 5-1.1 of the New York State Sanitary Code which is already regulated and subject to testing shall be exempt from the requirements of this article.

B. Except as required above, property owners shall not be required to undertake well testing in connection with a mortgage refinancing involving no sale or exchange of the property.

C. A residential rental property that is leased pursuant to a written or oral lease with a term of less than one year and any unit in the property has been occupied by the owner as a principal residence within the past year is exempt from periodic well testing and notification of tenants. All residential rental properties serviced by water from a private water supply shall be required to file certified test results before the property may be sold or exchanged, notwithstanding the foregoing exemption.

§ 234-70 Enforcement.

A. The Town of Wappinger Director of Code Enforcement, Code Enforcement Officers, Zoning Administrator, Deputy Zoning Administrator and the Fire Inspector shall enforce the provisions of this article.

B. The Town of Wappinger Building Department shall be prohibited from releasing the results of any Building Department or certificate of occupancy search, or report, or violation letter to the purchaser, seller, title company or their agents until the required certified test results have been filed with the Town Building Department.

C. Any property required by this article to have well test results on file with the Town Building Department shall be ineligible for a building permit, certificate of occupancy/certificate of compliance, site plan review, subdivision review and/or ZBA variance review or interpretation until the required certified test results have been filed in accordance with the provisions of this article.

§ 234-71 Penalties for offenses.

A. For each violation of a provision of this article, any person violating the same shall be guilty of a violation and shall be subject to a fine in the amount set forth in Chapter 122, Article V, § 122-20FF(3), of the Code.

B. In addition to the penalties prescribed for commission of a violation(s), any person or entity which violates, or causes a violation of any provisions of this article, or disobeys a notice to cease violations of this article, shall be subject to a civil penalty enforceable and collectible by the Town in the amount set forth in Chapter 122, Article V, § 122-20FF(4), of the Code for each day or portion of a day each such violation continues.

C. In addition to the above penalties, the Town Board may also maintain an action or proceeding in the name of the Town in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of this article, and to recover the appropriate fines and penalties together with administrative fees and costs including attorney's fees and disbursements.