[HISTORY: Adopted by the Board of Trustees
of the Village of Lloyd Harbor 2-28-1983 as Article 19 of L.L. No.
2-1983. Amendments noted where applicable.]
A.
The Village of Lloyd Harbor finds that freshwater
wetlands are invaluable resources for flood protection, wildlife habitat,
open space, water resources and other benefits associated therewith
which, if preserved and maintained in an undisturbed natural condition,
constitute important social, economic and aesthetic assets to existing
and future residents of the Village.
B.
Intent.
(1)
It is the intent of the Board of Trustees to protect
the residents of the Village by preserving, protecting and conserving
freshwater wetlands and the benefits derived therefrom, to prevent
the despoliation and destruction of freshwater wetlands and to regulate
use and development of such wetlands consistent with the general welfare
of the Village under its general police power and pursuant to Article
24 of the New York State Environmental Conservation Law (NYSECL).
[Amended 4-18-1988 by L.L. No. 3-1988]
(2)
It is also the intent of the Board of Trustees to
promote the public purpose and the health, safety and general welfare
of present and future residents of the Village by providing for the
protection, proper maintenance and use of wetlands, water bodies and
watercourses located within the Village by preventing or minimizing
erosion due to flooding and stormwater runoff, maintaining the natural
groundwater supplies, protecting subsurface water resources and providing
valuable watersheds, preserving and protecting the purity, utility,
water-retention capability, ecological functions and natural beauty
of all wetlands, waterbodies, watercourses and other related natural
features of the terrain, and by providing and protecting wildlife
habitat.
As used in this chapter, the following terms
shall have the meanings indicated:
All lands within 100 feet horizontally of the vegetative
boundary of any freshwater wetland.
Includes the owner of the affected property, his agent or
contract vendee who files an application for a permit pursuant to
this chapter.
The outer limit of vegetation specified in Subsections A
and B of the definition of "freshwater wetlands" and the waters specified
in Subsection C of the definition of "freshwater wetlands" below.
The Board of Trustees or any board of the Village which has
been designated by the Board of Trustees to be responsible for administering
the provisions of this chapter and promulgating rules, regulations
and procedures necessary to implement and administer properly the
provisions herein.
[Amended 4-18-1988 by L.L. No. 3-1988]
Lands, submerged lands and waters in the Village as may be
shown on the Freshwater Wetlands Map prepared by or for the State
of New York and filed with the Village pursuant to § 24-0301
of NYSECL and as may be shown on freshwater wetlands maps the Village
shall prepare and any lands, submerged lands and waters which contain
any or all of the following:
Lands and submerged lands commonly called "marshes,"
"swamps," "sloughs," "bogs" and "flats," supporting aquatic or semiaquatic
vegetation of the following vegetative types:
Wetland trees, which depend upon seasonal or
permanent flooding or sufficiently waterlogged soils to give them
a competitive advantage over other trees, including, among others,
red maple (Acer rubrum), willows (salix species), black spruce (Picea
mariana), swamp white oak (Quercus bicolor), red ash (Fraxinus pennsylvanica),
American elm (Ulmus americana) and larch (Larix laricina).
Wetland shrubs, which depend upon seasonal or
permanent flooding or sufficiently waterlogged soils to give them
a competitive advantage over other shrubs, including, among others,
alder (Alnus species), buttonbush (Cephalanthus occidentalis), bog
rosemary (Andromeda glaucophylla) and leatherleaf (Chamaedaphne calyculata).
Emergent vegetation, including, among others,
cattails (Typha species), pickerelweed (Pontederia cordata), bulrushes
(Scirpus species), arrow arum (Peltandra virginica), arrowheads (Sagittaria
species), reed (Phragmites communis), wild rice (Zizania aquatica),
burreeds (Sparganium species), purple loosestrife (Lythrum salicaria),
swamp loosestrife (Decodon verticillatus) and water plantain (Alisma
plantago-aquatica).
Rooted, floating-leaved vegetation, including,
among others, waterlily (Nymphaea odorata), water shield (Brasenia
schreberi) and spatterdock (Nuphar species).
Free-floating vegetation, including, among others,
duckweed (Lemma species), big duckweed (Spirodela polyrhiza) and watermeal
(Wolffia species).
Wet meadow vegetation, which depends upon seasonal
or permanent flooding or sufficiently waterlogged soils to give it
a competitive advantage over other openland vegetation, including,
among others, sedges (Carex species), rushes (Juncus species), cattails
(Typha species), rice cut-grass (Leersia oryzoides), reed canary grass
(Phalaris arundinacea), swamp loosestrife (Decodon verticillatus)
and spike rush (Eleocharis species).
Bog mat vegetation, including, among others,
sphagnum mosses (Sphagnum species), bog rosemary (Andromeda glaucophylla),
leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea)
and cranberries (Vaccinium macrocarpon and Vaccinium oxycoccos).
Submergent vegetation, including, among others,
pondweeds (Potamogeton species), naiads (Naias species), bladderworts
(Utricularia species), wild celery (Vallisneria americana), coontail
(Ceratophyllum demersum), water milfoils (Myriophyllum species), muskgrass
(Chara species), stonewort (Nitella species), waterweeds (Elodea species)
and water smartweed (Polygonum amphibium).
Lands and submerged lands containing remnants
of any vegetation that is not aquatic or semiaquatic that has died
because of wet conditions over a sufficiently long period, provided
that such wet conditions do not exceed a maximum seasonal water depth
of six feet and provided further that such conditions can be expected
to persist indefinitely, barring human intervention.
The member board established by Article 24 of the NYSECL.
Includes the applicant, any person who is permitted to intervene
pursuant to Article 24 of the NYSECL, the Village or an adjoining
municipality within which is located the freshwater wetland or adjacent
area which is the subject of an application for a permit.
A freshwater wetlands permit for the conduct of a regulated
activity.
Any corporation, firm, partnership, association, trust, estate,
one or more individuals and any unit of state or local government,
agency or subdivision thereof.
The presence in the environment of human-induced conditions
or contaminants in quantities or characteristics which are or may
be injurious to humans, vegetation, wildlife or property.
Any action resulting in direct or indirect physical impact
on a freshwater wetland, including but not limited to any regulated
activity.
Any form of draining, dredging, excavation, removal of soil,
mud, sand, shells, gravel or other aggregate, either directly or indirectly;
any form of dumping, filling or deposition of any soil, stones, sand,
gravel, mud, rubbish or fill of any kind, either directly or indirectly;
erecting any structures, constructing roads, the driving of pilings
or placing of any other obstructions, whether or not changing the
ebb and flow of the water; any form of pollution, including but not
limited to installing a septic tank, running a sewer outfall, discharging
sewage treatment effluent or other liquid wastes into or so as to
drain into a freshwater wetland; and any other activity which substantially
impairs any of the several functions served by the freshwater wetlands
or the benefits derived therefrom which are set forth in § 24-0105
of the NYSECL.
A.
No person shall conduct a regulated activity in any
freshwater wetland or adjacent areas in the Village without first
obtaining a permit issued by the Environmental Review Board.
B.
Exceptions.
(1)
As are otherwise legally permitted within the Village,
the depositing or removal of the natural products of freshwater wetlands
and adjacent areas as enumerated in § 24-0701, Subdivision
3, of the NYSECL and agricultural activities within said areas as
are enumerated and defined in § 24-0701, Subdivision 4,
of the NYSECL shall not be considered regulated activities.
(2)
In addition, public health activities, orders and
regulations of the Department of Health shall be excluded from regulated
activities. This agency shall notify the Environmental Review Board,
in writing, of the proposed activity which it will conduct.
(3)
If the Environmental Review Board shall determine
an emergency activity is immediately necessary to protect the health,
safety and well-being of any person or to immediately prevent substantial
damage to personal or real property, it may exempt such activity from
regulation.
A.
Any person proposing, permitting or causing to be
conducted a regulated activity upon any freshwater wetland or adjacent
area shall file an application for a permit with the Village Clerk.
The application shall include a detailed description of the proposed
activity, a map showing the area of freshwater wetland directly affected,
with the location of the proposed activity thereon, and a current
list of record owners of lands and claimants of water rights within
100 feet of the property on which the regulated activity is located.
B.
After submission of the completed application, the
applicant shall publish, at his/her expense, a notice of application,
indicating that the applicant intends to file an application, in the
official Village newspaper. The Environmental Review Board may waive
the publishing of the notice of application and require the publication
of the appropriate notice of hearing.
[Amended 4-18-1988 by L.L. No. 3-1988]
C.
If no notice of objection has been filed by any party
in interest in response to the notice of application or if the Environmental
Review Board finds that the proposed activity is of such a minor nature
as not to affect or endanger the balance of systems within the freshwater
wetland, it may dispense with a public hearing. If the Environmental
Review Board determines that a hearing is not to be held, the Board
shall publish, in the Village newspaper, its decision setting forth
its findings and reasons therefor.
D.
If a hearing is to be held, it shall be scheduled
no sooner than 30 days and not later than 60 days after the receipt
of the completed application by the Village and the publishing of
the notice of application. The applicant shall publish the notice
of hearing at his/her expense in the official Village newspaper not
more than 28 days nor less than 10 days prior to the date set for
the hearing. The applicant shall also send, by certified mail, not
less than 10 days prior to the date set for the hearing, the notice
of hearing to owners of record of adjacent lands within 100 feet of
the premises containing the wetlands and known claimants to water
rights which will be affected.
[Amended 4-18-1988 by L.L. No. 3-1988]
No permit shall be issued by the Environmental
Review Board pursuant to this chapter unless it shall find that:
A.
The proposed regulated activity is consistent with
the policy of this chapter to preserve, protect and conserve freshwater
wetlands and the benefits derived therefrom, to prevent the despoliation
and destruction of freshwater wetlands and to regulate the development
of such wetlands in order to secure the natural benefits of freshwater
wetlands, consistent with the general welfare and beneficial economic,
social and agricultural development of the Village.
B.
The proposed regulated activity is consistent with
the Village's land use regulations.
C.
The proposed regulated activity is compatible with
the public health and welfare.
D.
The proposed regulated activity is reasonable and
necessary.
E.
There is no reasonable alternative for the proposed
regulated activity on a site which is not a freshwater wetland or
adjacent area.
A.
Any permit issued pursuant to this chapter may be
issued with conditions. Such conditions may be attached as are necessary
to assure the preservation and protection of affected freshwater wetlands
and to assure compliance with the policy and provisions of this chapter
and the provisions of the Environmental Review Board rules and regulations
adopted pursuant to this chapter.
B.
The Environmental Review Board may require a performance
bond in such form and sureties as it deems necessary. Said bond shall
guarantee compliance with all provisions of this chapter and all other
conditions and requirements imposed on the approval of the permit.
C.
Operations conducted under the permit shall be open
to inspection at any time by the Building Inspector or Code Enforcement
Officer or Village Engineer. The issuance of a permit by the Environmental
Review Board does not relieve the applicant from obtaining all other
necessary authorizations.
D.
The Environmental Review Board may suspend or revoke
a permit issued pursuant to this chapter where it finds that the permittee
has not complied with any or all terms of such permit, has exceeded
the authority granted in the permit or has failed to undertake the
project in the manner set forth in the application.
E.
The Environmental Review Board may impose a permit
fee in an amount required by resolution adopted by the Board of Trustees
and may charge such fees and expenses to an applicant for official
action as shall enable it to recover the costs incurred by reason
of such application.
[Amended 4-18-1988 by L.L. No. 3-1988]
After a public hearing the Environmental Review
Board may adopt, amend and repeal rules and regulations consistent
with this chapter as it deems necessary and proper to administer this
chapter.
A.
Any person 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 to be assessed. Each and
every day a violation continues after written notice has been served
on the violator by the Building Inspector or Code Enforcement Officer
shall be deemed a separate violation. Before assessment of the civil
penalty, the alleged violator shall be afforded a hearing or opportunity
to be heard before the Environmental Review Board upon due notice
and with the rights to specifications of the charges and representation
by counsel.
B.
The Environmental Review Board shall also have the
power, following a hearing, to direct a violator to cease violation
of this chapter and to satisfactorily restore the affected freshwater
wetland to its condition prior to the violation under the Board's
supervision.
C.
Any civil penalty or order issued by the Village shall
be reviewable pursuant to the New York State Civil Practice Law and
Rules.
D.
In addition to the above civil fine, any person who violates an order issued pursuant to Subsection B of this section shall be guilty of a violation, pursuant to the Penal Law, 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.
E.
The Environmental Review Board shall have the right
to seek equitable relief to restrain any violation or threatened violation
of any provisions of this chapter.
A.
Any decision or order of the Environmental Review
Board may be reviewed by the Freshwater Wetlands Board of Appeals
in accordance with Title 11 of Article 24 of the NYSECL, provided
that, within 30 days after service of such order or notice of such
decision, such review is commenced by the filing with the Freshwater
Wetlands Board of Appeals of a notice of review or commencement of
a proceeding pursuant to Article 78 of the New York State Civil Practice
Law and Rules.
B.
The institution of a judicial proceeding to review
a determination or order of the Environmental Review Board shall preclude
the institution of a proceeding before the Freshwater Wetlands Board
of Appeals to review such a determination or order.
A.
After a public hearing, the Board of Trustees may
adopt a Freshwater Wetlands Map indicating the boundaries of any freshwater
wetlands in the Village, as defined herein, provided that said Freshwater
Wetlands Map is no less restrictive than that which may be filed by
the State Department of Environmental Conservation. The Board of Trustees
may, after a public hearing, so amend, modify or update an adopted
Freshwater Wetlands Map as it deems necessary and proper to carry
out the intent of this chapter.
[Amended 4-18-1988 by L.L. No. 3-1988]
B.
Any land and water not appearing on the above map
or maps but which is found after a field inspection by the Village
to contain any or all of the above vegetation, lands or water shall
be a freshwater wetland pursuant to this chapter. The Board of Trustees
shall thereafter hold a public hearing on whether the Village Freshwater
Wetlands Map shall be amended to include said designated area.
[Amended 4-18-1988 by L.L. No. 3-1988]
C.
Any freshwater wetland area so designated upon the
filed map which upon field inspection by the Village representative
is found not to contain any or all of the above vegetation, land or
water shall not be deemed to be a freshwater wetland and the owner
of said land shall be so notified, in writing, by the Village.[1]
[1]
Editor's Note: Original Section 1990, Effective
date, which immediately followed this section, was repealed 4-18-1988
by L.L. No. 3-1988.
