[HISTORY: Adopted by the Town Board of the
Town of New Castle 9-11-1990 by L.L. No. 34-1990.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Master Fee Schedule — See Ch. 17.
Building construction — See Ch. 46.
Zoning — See Ch. 60.
Environmental quality review — See Ch. 65.
Flood damage prevention __ See Ch. 70.
Subdivision of land — See Ch. 113.
Watercourses — See Ch. 135.
[1]
Editor's Note: This local law also repealed former Ch. 137,
Wetlands, adopted 2-27-1979 by L.L. No. 4-1979 , as amended.
A.
The Town Board of the Town of New Castle finds and
declares it to be the public policy of the Town to preserve, protect
and conserve its wetlands, including water bodies and watercourses,
and the benefits derived therefrom, to prevent despoliation and destruction
and to regulate the use and development thereof and to secure the
natural benefits of wetlands, water bodies and watercourses consistent
with the general welfare and beneficial economic and social development
of the town. In this connection, the Town Board finds as follows:
(1)
Rapid population growth, attended by housing, road
and other construction, and increasing demands upon natural resources
are found to be encroaching upon, despoiling, polluting or eliminating
many of the town's wetlands, water bodies, watercourses and other
natural resources and processes associated therewith.
(2)
The preservation and maintenance of wetlands, water
bodies and watercourses in an undisturbed and natural condition constitute
important physical, ecological, social, aesthetic, recreational and
economic assets necessary to promote the health, safety and general
welfare of present and future residents of the Town and of downstream
drainage areas. In particular, wetlands serve multiple functions,
including:
(a)
Protecting water resources by providing sources
of surface water, recharging groundwater and aquifers, serving as
chemical and biological oxidation basins and functioning as settling
basins for naturally occurring sedimentation.
(b)
Controlling flooding and stormwater runoff by
storing or regulating natural flows.
(c)
Providing nesting, migratory and wintering habitats
for diverse wildlife species, including many on the New York State
and Federal Endangered Species lists.
(d)
Supporting vegetative associations specifically
adapted for survival in low oxygen environments.
(e)
Providing areas of unusually high plant productivity
which support significant wildlife diversity and abundance.
(f)
Providing breeding and spawning grounds, nursery
habitat and food for various species of fish.
(g)
Serving as nutrient traps for nitrogen and phosphorus
and filters for surface water pollutants.
(h)
Helping to maintain biospheric stability by
supporting particularly efficient photosynthesizers capable of producing
significant amounts of oxygen and supporting bacteria that process
excess nitrates and nitrogenous pollutants and return them to the
atmosphere as inert nitrogen gas.
(i)
Providing open space and visual relief from
development.
(j)
Serving as outdoor laboratories and living classrooms
for the study and appreciation of natural history, ecology and biology.
(3)
Considerable acreage of these important natural resources
has been lost or impaired by draining, dredging, filling, excavating,
building, polluting and other acts inconsistent with the natural uses
of such areas. Remaining wetlands are in jeopardy of being lost, despoiled
or impaired by such acts and the cumulative effect of such acts, contrary
to the public safety and welfare.
B.
It is the intent of this chapter to promote the public
purposes identified in this section by providing for the protection,
preservation, proper maintenance and use of the town's wetlands, water
bodies and watercourses, by preventing or minimizing erosion caused
by flooding and stormwater runoff, by maintaining the natural groundwater
supplies, preserving band protecting the purity, utility, water retention
capability, ecological functions, recreational usefulness and natural
beauty of all wetlands, water bodies, watercourses and other related
features of the terrain and by providing and protecting appropriate
habitats for natural wildlife.
[Amended 10-9-2001 by L.L. No. 5-2001; 7-30-2019 by L.L. No. 12-2019]
Words or phrases used in this chapter shall be interpreted as defined below, and where ambiguity exists, words or phrases shall be interpreted so as to carry out the regulatory goals stated in § 137-1. As used in this chapter, the following terms shall have the meanings indicated:
A person requesting a wetlands permit from the Town or a
person to whom a wetlands permit has been given.
The Planning Board, the Environmental Review Board or the Environmental Coordinator as specified in § 137-5G hereof.
The outer limit of the soils and/or vegetation as defined
in "wetlands."
Any cutting of more than 10 trees on an individual lot within
a one-year time period.
To fill, grade, place, eject, emit, discharge or dump any
material.
The predominant plant species (i.e., the only species dominating
a vegetative unit) or a codominant species (i.e., when two or more
species dominate a vegetative unit).
The Environmental Coordinator of the Town of New Castle,
New York, or the person acting in that capacity, as designated by
the Town Board.
The Environmental Review Board of the Town of New Castle,
New York.
A soil that is saturated, flooded or ponded long enough during
the growing season to develop anaerobic conditions in the upper part,
as set forth in the Federal Manual for Identifying and Delineating
Jurisdictional Wetlands, prepared by the federal government and as
updated from time to time, and as on file with the Town Clerk of the
Town of New Castle.
Plant life growing in water or on a substrate that is at
least periodically deficient in oxygen as a result of excessive water
content as set forth in the Federal Manual for Identifying and Delineating
Jurisdictional Wetlands, prepared by the federal government and as
updated from time to time, and Wetlands Plants of the State of New
York, 1986, published by the United States Fish and Wildlife Service
in cooperation with the National and Regional Wetlands Plant List
Review Panels, and as updated from time to time, and as on file with
the Town Clerk of the Town of New Castle.
Soil, silt, stones, sand, gravel, rock, clay, bog, peat,
mud, debris, water and refuse or any other organic or inorganic substance,
chemical agent or matter, sewage sludge or effluent or municipal or
industrial solid waste, whether liquid, solid or gaseous, or any combination
thereof.
A plan prepared by the applicant which shall specify mitigation
measures that provide for replacement wetlands and wetlands buffers
that recreate as nearly as possible the original wetlands and wetlands
buffers in terms of type, function, geographic location and setting.
Any person, firm, partnership, association, corporation,
company, organization or legal entity of any kind, including public
agencies and municipal corporations.
The Planning Board of the Town of New Castle, New York.
Any harmful thermal effect on any wetlands or the contamination
or rendering unclean or impure of any wetlands by reason of erosion
or by any waste or other materials discharged or deposited therein.
The wetlands map prepared by the State of New York pursuant
to Article 24 of the Environmental Conservation Law.
The Town of New Castle, New York.
The Town Board of the Town of New Castle, New York.
Any healthy, living, woody plant, its root system and the
area within the outer limit of its branches, which has a diameter
at breast height (4 1/2 feet) of six inches or more.
Any natural or artificial, permanent or intermittent, public
or private surface water body or surface water segment, such as ponds,
lakes, reservoirs, rivers, streams, brooks or waterways, that are
contained within, flow through or border on the Town of New Castle.
All areas of at least 1/10 of an acre that comprise hydric soils
and/or are inundated or saturated by surface water or groundwater
at a frequency and duration sufficient to support, and under normal
circumstances do support, a prevalence of hydrophytic vegetation as
defined by the Federal Interagency Committee for Wetlands Delineation
1989; Federal Manual for Identifying and Delineating Jurisdictional
Wetlands; United States Army Corps of Engineers, United States Environmental
Protection Agency, United States Fish and Wildlife Service, and U.S.D.A.
Soil Conservation Service, Washington, D.C.; Cooperative Technical
Publication, attached hereto as Appendix A.[1]
Watercourses as defined in this section.
Any area either larger or smaller than 1/10 of an acre, meeting
all other requirements of a wetland, within 100 feet of other similar
areas shall be considered as one wetland if the total of the areas
is greater than 1/10 of an acre.
A specified area surrounding a wetlands, that is intended
to provide protection to the wetlands from human activity and other
encroachment associated with development. The wetlands buffer shall
be determined to be the area extending 100 feet horizontally away
from and paralleling the wetlands boundary.
The sum total of wetness characteristics in areas that are
inundated or have saturated soils for a sufficient duration to support
hydrophytic vegetation.
[1]
Editor's Note: Appendix A is on file in the Town offices.
[Amended 10-9-2001 by L.L. No. 5-2001]
Except as provided in § 137-4 hereof, it shall be unlawful to conduct, directly or indirectly, any of the following activities upon any wetlands or within the wetlands buffer unless a permit is obtained pursuant to § 137-5 hereof:
A.
Placement or construction of any structure.
B.
Any form of draining, dredging, excavation or removal
of material, either directly or indirectly.
C.
Any form of dumping, filling or depositing of material
either directly or indirectly.
D.
Installation of any service lines or cable conduits.
E.
Introduction of any form of pollution, including but
not limited to the installation of a septic tank, the running of a
sewer outfall or the discharging of sewage treatment effluent or other
liquid wastes.
F.
Alteration or modification of natural features and
contours.
G.
Alteration or modification of natural drainage patterns.
H.
Construction of dams, docks or other water control
devices, pilings or bridges, whether or not they change the natural
drainage characteristics.
I.
Installation of any pipes or wells.
J.
Clear cutting.
L.
Deposition or introduction of chemicals, including herbicides, pesticides and fertilizers, except as permitted in § 137-4J.
M.
Grazing of one or more horses or other animals other
than those directly producing agricultural products.
[Amended 10-9-2001 by L.L. No. 5-2001]
The following activities are permitted by right
within any wetlands or wetlands buffer:
A.
The depositing or removal of the natural products
of the wetlands by recreational or commercial fishing, shellfishing,
aquiculture, hunting or trapping where otherwise legally permitted.
B.
Outdoor recreational activity that does not materially
alter the natural state of the land or require construction, including
use of field trails for nature study, hiking, swimming, skin diving
and boating, where otherwise legally permitted.
C.
Normal ground maintenance, including mowing, trimming
of vegetation and removal of dead or diseased vegetation around a
residence except for the use of fertilizers, pesticides and herbicides
in wetlands.
D.
Repair of walkways and walls when the work does not
involve the use of any machinery.
E.
Operation and maintenance of such dams, retaining
walls, terraces, sluices, culverts or other water control structures
or devices as legally existed on the effective date of this chapter.
F.
Selective trimming and pruning in previously landscaped
areas to improve the health or appearance of vegetation within 50
feet of residences that were in existence on the effective date of
this chapter.
G.
Public health activities pursuant to the order of
the Westchester County Department of Health or New York State Department
of Health.
H.
Any actual and ongoing emergency activity that is
immediately necessary for the protection and preservation of life
or property.
I.
The existing, yearly activities of farmers and other
landowners in grazing and watering livestock or growing of crops that
directly produce agricultural products.
J.
Depositing herbicides, pesticides or fertilizers in
an wetlands buffer in accordance with manufacturers' recommendations
and accepted horticultural practices.
K.
Decorative planting in a wetlands buffer.
[Amended 4-28-1992 by L.L. No. 8-1992; 11-13-1990 by L.L. No. 40-1990; 10-9-2001 by L.L. No. 5-2001; 9-10-2002 by L.L. No. 8-2002; 1-10-2006 by L.L. No. 1-2006; 4-10-2007 by L.L. No.
3-2007; 4-14-2009 by L.L. No. 5-2009; 3-27-2012 by L.L. No. 1-2012; 7-30-2019 by L.L. No. 12-2019]
A.
Any person proposing to conduct or cause to be conducted a regulated activity specified in § 137-3 hereof upon any wetlands or wetlands buffer shall file an application for a permit with the approving authority as hereinafter provided, in hard copy and in an electronic file format.
(1)
The name and address of the property owner and applicant, if different.
(2)
The street address and Tax Map designation of the property.
(3)
A statement of authority from the owner for any agent making application
for a permit.
(4)
A statement of the proposed work and purpose thereof.
B.
Additional information may be requested by the approving authority,
including any of the following:
(1)
An explanation as to why the proposed activity cannot be located
on a different portion of the site or on another lot under the applicant's
ownership or control.
(2)
A description of all functions currently provided by the wetlands
under review.
(3)
Complete plans for the proposed site improvements, which shall be
certified by an engineer, architect, land surveyor or landscape architect
licensed in the State of New York, drawn to a scale no less detailed
than one inch equals 50 feet and showing the following:
(a)
The location of all wetlands and wetlands buffers as determined by a qualified individual no earlier than 12 months prior to the date of filing the application. The finite boundaries of a wetlands shall be determined by field investigation and flagging after appropriate field survey work by qualified individuals in a manner acceptable to the approving authority. The boundaries shall subsequently be surveyed by a licensed land surveyor unless this requirement is waived by the approving authority. The approving authority may consult and/or may require the applicant to consult with biologists, hydrologists, soil scientists, ecologists/botanists or other experts as necessary to make this determination pursuant to the definition contained in § 137-2.
(b)
A description of the vegetative cover of the wetlands and wetlands
buffer, including dominant species.
(c)
A description of the soil types on site.
(d)
The location of the construction area or area proposed to be
disturbed, and its relation to property lines, roads, buildings, and
wetlands within 250 feet.
(e)
The exact locations, specifications and amount of all proposed
draining, fill, grading, dredging and vegetation removal or displacement,
and the procedures to be used to undertake such work.
(f)
The location of any wells and the depths thereof, and any sewage
disposal system within 50 feet of the areas to be disturbed.
(g)
The existing and proposed contours at two-foot intervals in
the proposed disturbed area and to a distance of 50 feet beyond such
area; and elevations of the site and adjacent lands within 200 feet
of the site at contour intervals of no greater than five feet.
(h)
Details of any temporary or permanent drainage system proposed
both for the conduct of work and after completion thereof, including
locations at any point discharges, artificial inlets or other human-made
conveyances that would discharge into the wetlands or wetlands buffer,
and measures proposed to control erosion both during and after completion
of the work.
(i)
Where creation of a lake or pond is proposed, details of the
construction of any dams, embankments, outlets or other water control
devices and analysis of the wetlands hydrologic system, including
seasonal water fluctuation, inflow/outflow calculations and subsurface
soil, geology and groundwater conditions.
(j)
Where creation of a detention basin is proposed, with or without
excavation, details of the construction of any dams, berms, embankments,
outlets or other water control devices and an analysis of the wetlands
hydrologic system, including seasonal water fluctuation, inflow/outflow
calculations and subsurface soil, geology, and groundwater conditions.
(4)
Copies of all applicable county, state or federal permits or permit
applications that are required for such work or, if none have been
submitted at the time of wetlands permit application, a list of all
permits that will ultimately be required.
(6)
Additional information as needed, such as the study of flood, erosion
or other hazards at the site and the effect of any protective measures
that might be taken to reduce such hazards; and other information
deemed necessary to evaluate the proposed use in terms of the goals
and standards of this chapter.
C.
An application fee and engineering and inspection fee in amounts
set forth by resolution of the Town Board in the Master Fee Schedule,
which may be amended, shall be submitted with the application.
D.
All information relating to a permit application, including but not
limited to the application itself, additional required materials or
information, notices, record of hearings, written comments and findings,
shall be maintained on file in the office of the Town Building and
Engineering Department.
E.
Four copies of any such application shall be filed with the approving
authority if it is the Environmental Coordinator or the Environmental
Review Board or 10 copies with the approving authority if it is the
Planning Board.
F.
For applications to the Planning Board as approving authority, the
applicant shall publish a notice of such application in the Town's
official newspaper. For applications to the Planning Board, the applicant
shall also notify, in writing, all property owners of record within
100 feet of the boundary of the property on which the proposed regulated
activity will be located, as shown in the Town Tax Assessor's office,
of the filing of the wetlands permit application. For applications
to the Environmental Review Board as approving authority, the applicant
shall, within 10 days after filing the application, notify, in writing,
all property owners of record within 100 feet of the boundary of the
property in which the proposed regulated activity will be located.
G.
The approving authority for all applications shall be the Environmental
Review Board, except as follows:
(1)
The Planning Board shall be the approving authority for any application
involving property that is also the subject of a pending site plan,
subdivision or special permit application in accordance with the zoning
requirements of the Town of New Castle, and for any application that
also involves the construction or establishment of a principal building
or use.
(2)
The Environmental Coordinator shall be the approving authority for
any of the following activities proposed to be conducted on property
not subject to regulation by the State of New York, and no public
hearing shall be required:
(a)
Removing water-deposited silt and/or other material in order
to restore the preexisting land elevations, provided that the total
amount removed does not exceed 100 cubic yards of material.
(b)
Restoring land elevations that have been altered by erosion
or storm damage.
(c)
The construction, expansion or improvement of private residential
or recreational facilities, as otherwise legally permitted, provided
that the total amount of material deposited, removed or regraded does
not exceed 100 cubic yards.
(d)
The construction of driveways not associated with any other
construction approvals where alternative means of access are proved
to be impractical, provided that the amount of material to be deposited
or regraded in connection with such construction does not exceed 100
cubic yards.
(e)
The use of harmless chemicals, dyes and other similar substances
to maintain or study any wetland.
(f)
Decorative landscaping and planting in wetlands when covering
less than 1/10 of an acre.
(g)
Decks associated with single-family homes provided that the
total expansion does not exceed 25% of the existing deck footprint.
(h)
Sheds less than or equal to 120 square feet.
(i)
Emergency repair/remediation of an existing septic system involving
less than 25% expansion area in relation to the existing septic leach
field disturbance.
(3)
Where the Environmental Review Board or Town Wetlands Inspector initiates
a review of an application submitted pursuant to this chapter and
determines that because of the scope, nature, location or potential
environmental impact of the action which could result from approval
of the wetlands permit a public hearing would be either necessary
or appropriate, the application shall be immediately forwarded to
the Planning Board for public hearing, whereupon the Planning Board
shall become the approving authority for such application.
H.
The Planning Board, upon receipt of an application meeting the requirements
of this section, shall refer the application submitted to it, as the
approving authority pursuant to this chapter, to the Environmental
Review Board for review and report. The Environmental Review Board
shall report to the Planning Board within 30 days of the referral
date or within such other period as may be specified by the Planning
Board. The Planning Board will be guided by the Environmental Review
Board's report. Failure to comply within the specified time period
may be interpreted by the Planning Board as evidence of no objection
to the application.
J.
When the Planning Board is the approving authority, no sooner than
30 days and no later than 60 days after the receipt of such application
the Planning Board shall hold a public hearing on any application
submitted pursuant to this chapter. These time periods may be extended
by mutual agreement between an applicant and the Planning Board. The
Planning Board shall cause notice of such hearing to be published
in the town's official newspaper at least five days prior to the date
set for such hearing. All applications and maps and documents relating
thereto shall be open for public inspection at the office of the Town
Building and Engineering Department.
K.
Within 45 days of the date that such application is considered complete
or within 45 days of the date of the close of any public hearing that
may be conducted on said application, whichever period is longer,
the approving authority shall render a decision to approve, approve
with modifications or disapprove the issuance of a permit for the
proposed activity. Nothing in this section shall be construed as authorizing
a default approval in the event that these periods are exceeded.
M.
A stormwater pollution prevention plan consistent with the requirements of Chapter 108A, Stormwater Management and Erosion and Sediment Control, shall be required for any wetlands permit approval that qualifies as or authorizes a land development activity as defined in Chapter 108A. The SWPPP shall meet the performance and design criteria and standards in Chapter 108A. The approved wetlands permit shall be consistent with the provisions of that chapter.
A.
In making its determination to grant, deny or grant
with conditions a permit under this chapter, the approving authority
shall consider the following:
(1)
Whether the proposed activity is consistent with the purpose and findings of this chapter as set forth in § 137-1 hereof.
(2)
The environmental impact of the proposed action.
(3)
The possible or practicable alternatives to the proposed
action.
(4)
Whether the proposed action will have a deleterious
effect on the health, safety or welfare of the residents of New Castle
or its neighboring communities.
(5)
Whether the proposed action will have adequate safeguards
for the protection and preservation of the environment and for the
proper maintenance of any wetlands and the natural functions of and
the benefits derived from such areas.
(6)
Whether the proposed action will have adequate safeguards
employing the best available technology to protect the potable fresh
surface and ground water supplies of the Town from drought, pollution,
overuse and other forms of misuse.
(7)
Whether the proposed action 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 protect any other benefits of wetlands as enumerated in § 137-1B hereof; and is the best alternative available for accomplishing the proposed action.
(8)
Whether there is a practicable alternative site for
the proposed activity in another area of the subject property that
is not a wetland.
B.
The applicant shall have the burden of demonstrating that the proposed activity is not adverse to the health, safety and welfare of the residents of New Castle or its neighboring communities and that it will not degrade the environment or be inconsistent with the purpose of this chapter as stated in § 137-1 hereof or, in the alternative, that the applicant will otherwise suffer undue hardship if a permit is not issued.
C.
Duly filed notice, in writing, that the state or any
agency or subdivision thereof or the Town is in the process of acquiring
any wetlands by negotiation or by condemnation shall be sufficient
basis for denial of any permit.
D.
The approving authority may require the preparation of a mitigation plan by the applicant pursuant to § 137-6F hereof when the applicant has demonstrated that either losses or significant impacts to the wetlands or wetlands buffer are necessary and unavoidable. For the purposes of requiring a mitigation plan, wetlands impacts are necessary and unavoidable only if all of the following criteria are satisfied:
[Amended 10-9-2001 by L.L. No. 5-2001]
(1)
There is no feasible on-site alternative to the proposed
activity, including reduction in density, change in use, revision
of road and lot layout and related site planning considerations that
could accomplish the applicant's objectives; and
(2)
There is no feasible alternative to the proposed activity
on another site available to the applicant that is not a wetlands
or wetlands buffer.
E.
The approving authority shall monitor or shall cause
to have monitored projects in accordance with the specifications set
forth in the permit to determine whether the elements of the permit
and/or mitigation plan have been met. The Planning Board may contract
with an academic institution, independent research group or other
qualified professionals to assist and discharge its obligations hereunder
at the expense of the applicant. The requirements for monitoring shall
be specified in the permit and/or mitigation plan and may include,
but not be limited to:
(1)
The time period over which monitoring shall occur.
(2)
Field measurements to verify the size and location
of the impacted wetlands area and the restored/replacement wetlands
area.
(3)
The date of completion of the work or restoration/replacement.
(4)
Field verification of the vegetative, hydrologic and
soils criteria as specified in the permit and/or mitigation plan.
F.
In the event that the approving authority so requires pursuant to § 137-6D hereof, the applicant shall prepare a mitigation plan.
(1)
All mitigation measures shall balance the benefits
of regaining new wetlands areas with the loss to other natural areas
caused by wetlands 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.
(2)
Mitigation plans developed to compensate for the loss
of wetlands or wetlands buffers shall include baseline data as needed
to adequately review the effectiveness of this plan. The mitigation
plan shall also include a monitoring schedule for a specified period
of time as agreed to by the approving authority.
[Amended 10-9-2001 by L.L. No. 5-2001]
(3)
Any mitigation plan prepared pursuant to this section
and accepted by the approving authority shall become part of the permit
for the application.
G.
Any permit issued pursuant to this chapter may be
issued with conditions. Such conditions may be attached as the approving
authority deems necessary to ensure the preservation and protection
of affected wetlands and to ensure compliance with the policies and
provisions of this chapter and the provisions of the approving authority's
rules and regulations, if any, adopted pursuant to this chapter.
H.
Every permit issued pursuant to this chapter shall
be in written form and shall contain the following conditions:
(1)
Work conducted under a permit shall be open to inspection
during daylight hours, including weekends and holidays, by the approving
authority or its designated representative.
(2)
The permit expiration date as determined by the approving
authority shall be stated.
(3)
The permit holder shall notify the approving authority
of the date on which the work is to begin at least five days in advance
of such commencement date.
(4)
The approving authority's permit shall be prominently
displayed at the project site during the undertaking of the activities
authorized by the permit.
J.
The Planning Board, as the approving authority, may require prior to the commencement of work authorized under any permit issued pursuant to this chapter that the applicant shall post a bond or other security acceptable to the Town Board 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 issuance of a certificate of completion as described in § 137-10 hereof and until the bond is released by the approving authority or a substitute bond is provided. In the event that any condition of any such bond is breached, the Planning Board, as the approving authority, may recommend that the Town institute an action in the courts upon such bond and prosecute the same to judgment and execution.
K.
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 securing of any other required permit
or approval.
L.
The approving authority may suspend or revoke a permit
in the form of a stop-work order if it finds that the applicant has
not complied with any or all of the terms of such permit, has exceeded
the authority granted in the permit or has failed to undertake the
project in the manner set forth in the approved application.
(1)
The applicant shall receive written notice of said
stop-work order as soon as reasonably practicable but no later than
three days after issuance of the same, which notice shall be delivered
personally or by certified mail and addressed to the applicant's address
as shown on the permit. Such applicant shall be entitled to a hearing
before the approving authority after work has stopped. If such a hearing
is requested by the applicant, in writing, within five days of receipt
of notice of the stop-work order, such hearing shall be scheduled
by the approving authority within 15 days of receipt of request for
a hearing. After the close of the hearing, the approving authority
may confirm, modify or cancel the stop-work order.
(2)
The approving authority shall set forth, in writing,
in the permit application file it keeps its findings and reasons for
revoking or suspending a permit pursuant to this section.
M.
No permit shall be valid for more than one year after
approval of an application by the approving authority unless otherwise
specified by the approving authority. All permits shall expire upon
the completion of the work specified therein. The validity of any
work duly completed pursuant to an existing permit shall not be affected
by the expiration of the permit, but such work shall not be continued
beyond the expiration date. Permits may be renewed by the approving
authority upon application submitted at least 60 days before the expiration
of the permit. Standards for issuance of renewals shall be the same
as for the issuance of permits. Permits, including all of their conditions,
shall be binding on successors and assignees of the applicant.
[Added 7-23-2002 by L.L. No. 5-2002]
In addition to compliance with the provisions of this chapter, applications for wetlands permits to conduct regulated activities on properties located within an Environmental Protection Overlay District shall comply with the provisions of Chapter 64 of the Town Code pertaining to such districts. In the event of any inconsistency or conflict between the provisions of this chapter and Chapter 64, the provisions of Chapter 64 shall govern to the extent of the inconsistency or conflict.
[Amended 7-30-2019 by L.L. No. 12-2019]
A.
A determination by the Planning Board to grant or deny a wetlands
permit may be reviewed by the applicant or any other aggrieved person
by the commencement of an action pursuant to the provisions of Article
78 of the Civil Practice Law and Rules within 30 days of the filing
of such a determination with the Town Clerk.
B.
In the case of an application decided by the Environmental Review
Board or the Environmental Coordinator, the applicant or any other
party aggrieved by such determination may seek review by appealing
to the Planning Board, in which case the Planning Board shall become
the approving authority for such application. Such review shall be
requested not later than 20 days after the filing of the subject decision
by the approving authority.
[Amended 7-30-2019 by L.L. No. 12-2019]
Any site for which an application has been submitted shall be
subject to inspection upon notice to the property owner and applicant
at any reasonable time, including weekends and holidays, by the Environmental
Coordinator, the Building Inspector or by members of the Environmental
Review Board, the Planning Board or their designated representatives.
The applicant shall indemnify and hold the Town harmless against any
damage or injury that may be caused by or arise out of any entry onto
the subject property in connection with the processing of the application,
during construction or within one year after the completion of work.
This chapter shall not apply to any work shown
on construction drawings or improvement plans for subdivisions, site
plans or special permits for which a wetlands permit has previously
been granted prior to the effective date of this chapter.
[Amended 7-30-2019 by L.L. No. 12-2019]
A.
Within 30 days after completion of all work authorized under a permit
issued in accordance with this chapter, the applicant shall notify
the Environmental Coordinator of such completion. For all work undertaken
pursuant to permits approved by the Planning Board or Environmental
Review Board, the applicant shall, if required, submit as-built drawings.
Within 30 days of such notification and submission, the Environmental
Coordinator shall inspect the work for compliance with all conditions
of the permit.
B.
When all work authorized under a permit is deemed acceptable, the
approving authority shall issue a certificate of completion, which
shall be accompanied by cancellation or return of any bond collected
for such permit.
C.
When work authorized under a permit is deemed not acceptable, the
Environmental Coordinator shall so notify the applicant. The notification
of noncompliance shall include a list of all conditions in violation
of the terms of the permit and shall specify a time limit for the
correction of all items so listed.
[Amended 11-13-1990 by L.L. No. 46-1990; 10-9-2001 by L.L. No. 5-2001; 7-30-2019 by L.L. No. 12-2019]
A.
Any person who undertakes any regulated activity within a wetlands
or wetlands buffer without a permit or who violates, disobeys or disregards
any provision of this chapter 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
or opportunity to be heard before the Planning Board upon due notice
and with rights to specification of the charges and representation
by counsel. Such civil penalty may be recovered in an action brought
by the Town in any court of competent jurisdiction. Such civil penalty
may be released or compromised by the Town, and any action commenced
to recover the same may be settled and discontinued by the Town.
B.
The Planning Board shall also have the power, following a hearing, to direct a violator to cease violation of this chapter and, under the Board's supervision, to restore satisfactorily the affected freshwater wetlands or watercourse 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 A and D hereof.
C.
Any civil penalty or order issued by the Planning Board shall be
reviewable pursuant to Article 78 of the Civil Practice Law and Rules
within 30 days of the filing of the decision in the office of the
Town Clerk of the Town of New Castle.
D.
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
or a term of imprisonment of not more than 15 days, or both. 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. In addition to these punishments,
any offender may be punishable by being ordered by the court to restore
the affected freshwater wetlands 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 Environmental Coordinator.
E.
The Town 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 Town Engineer, Building Inspectors and the Environmental Coordinator
are hereby authorized to issue appearance tickets and summonses for
violations of this chapter.
If any provision of this chapter shall be held
for any reason to be invalid, such determination shall not invalidate
any other provision hereof.
