A.
Except as provided in Subsection B of this section, no person shall conduct a regulated activity on any freshwater wetland or adjacent area unless such person has first obtained a permit pursuant to this chapter.
B.
No permit under this chapter shall be required for:
(1)
The deposition or removal of the natural products
of freshwater wetlands and adjacent areas by recreational or commercial
fishing, shellfishing, aquiculture, hunting or trapping, where otherwise
legally permitted and regulated.
(2)
Public health activities, orders and regulations of
the State Department of Health, County Department of Health, City
Department of Health or other, as applicable, undertaken in compliance
with § 24-0701, Subdivision 5, of the State Environmental
Conservation Law.
(3)
Activities subject to the review jurisdiction of the
State Public Service Commission or the New York State Board on Electric
Generation Siting and the Environment under Article 7 or Article 8
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.
(4)
Any actual and ongoing emergency activity which is
immediately necessary for the protection and preservation of life
or property or the protection or preservation of natural resource
values. Such emergency activities include, for example, search and
rescue operations; preventive or remedial activities related to large-scale
contamination of streams or other bodies of water, floods, hurricanes
and other storms; and public health concerns. Within five days of
the end of such an emergency involving the undertaking of any activity
which otherwise would be treated as a regulated activity under this
chapter, the person chiefly responsible for undertaking such emergency
activity shall send a written statement to the agency setting forth
the pertinent facts regarding such emergency, including an explanation
of the life, property or resource values such activity was designed
to protect or preserve.
(5)
Any activity located in a freshwater wetland where
such wetland is located in more than one town or Village.
A.
Any person proposing to conduct or cause to be conducted
a regulated activity requiring a permit under this chapter upon any
freshwater wetland or adjacent area shall file an application for
a permit with the Clerk of the Village. The Clerk shall immediately
forward such application to the agency.
B.
An application for a permit shall be filed by the
applicant on a form prescribed by the agency. Such application shall
set forth the purpose, character and extent of the proposed regulated
activity. The application shall include a detailed description of
the regulated activity, a map showing the area of freshwater wetland
or adjacent area directly affected, with the location of the proposed
regulated activity thereon, a deed or other legal description describing
the subject property and such additional information as the agency
deems sufficient to enable it to make the findings and determination
required under this chapter.
C.
The application shall be accompanied by a list of
the names of the owners of record of lands adjacent to the freshwater
wetland or adjacent area upon which the project is to be undertaken
and the names of known claimants of water rights, of whom the applicant
has notice, which relate to any land within or within 100 feet of
the boundary of the property on which the proposed regulated activity
will be located.
D.
An application shall not be deemed to be completed
or received until the agency determines that all such information,
including any additional information requested, has been supplied
in a complete and satisfactory form.
E.
The Clerk of the Village shall cause a copy of such
completed application to be mailed to all local governments where
the proposed activity or any part thereof is located.
A.
Within five days of its receipt of a completed application
for a permit regarding a proposed regulated activity, the agency shall
provide the applicant with a notice of application which the applicant
shall publish at his or her own expense at least once in a newspaper
having a general circulation in the Village.
B.
Said notice of application shall be in a form prescribed
by the agency and shall:
(1)
Specify that persons wishing to object to the application
should file a notice of objection by a specified date, together with
a statement of the precise grounds of objection to the application,
with the agency.
(2)
Specify that if no notices of objection are timely
filed or if the agency determines that the proposed activity is of
such a minor nature as to not affect or endanger the balance of systems
within any freshwater wetland, then the agency, in its discretion,
may determine a hearing is not necessary and dispense with the public
hearing.
(3)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office
of the Clerk of the Village.
C.
Notwithstanding any other provision of this section,
the agency may in its discretion dispense with the requirement for
a notice of application and require a notice of hearing pursuant to
this article.
A.
No sooner than 30 days and not later than 60 days after its receipt of a completed application for a permit regarding a proposed regulated activity and after the publication of a notice of application pursuant to § 161-7, the agency shall hold a public hearing on such application at a suitable location, which hearing shall be held pursuant to the provisions of § 161-11.
[Amended 1-5-1998 by L.L. No. 1-1998]
B.
Notwithstanding the provisions of Subsection of this section, where no notice of objection to the notice of application published pursuant to § 161-7 of this chapter shall have been filed within the time specified by that notice or where the agency determines that the proposed activity is of such a minor nature as not to affect or endanger the balance of systems within any freshwater wetland, the agency may, in its discretion, dispense with such hearing. Where the agency finds that a public hearing is not necessary, it shall publish a decision setting forth its reasons therefor, which decision shall be a matter of public record and shall be mailed to each local government where the proposed regulated activity or any part thereof will be located. Public notice of such decision that a public hearing is not necessary shall be provided in the same manner as notice of application set forth in § 161-7 of this chapter.
A.
The agency shall, within 21 days of receipt of a completed
application, provide the applicant with a notice of hearing which
the applicant shall publish at his or her own expense at least 15
days prior to the date set for the hearing, at least once in a newspaper
of general circulation in the Village.
B.
At least 15 days prior to the date set for the hearing,
the agency shall by certified mail provide a notice of hearing to
each local government within whose boundaries the proposed regulated
activity or any portion thereof will be located.
C.
At least 15 days prior to the date set for the hearing,
the agency shall, by certified mail, provide notice of hearing to
all owners of record of land adjacent to the affected freshwater wetland
or adjacent area and to all known claimants of water rights, of whom
the applicant has notice, which relate to any land within, or within
100 feet of the boundary of, the property on which the proposed regulated
activity will be located.
D.
The notice of hearing shall:
(1)
State the name of the applicant.
(2)
Specify the location and outline the scope of the
proposed regulated activity.
(3)
Specify the date, time and place of the public hearing
on the application.
(4)
Specify that persons wishing to be parties in interest
and eligible to be heard at such public hearing, if any, should file
a notice of appearance by a specified date, together with a statement
of the precise grounds of support of, opposition to or interest in
the application, with the agency.
(5)
Specify that any person who wishes to be a party in
interest without filing a notice of appearance may do so by appearing
at the public hearing and indicating his or her desire to be a party
in interest, if a public hearing is held.
(6)
Specify that if no notices of appearance are timely
filed by any party in interest and if the applicant waives any public
hearing, then the public hearing may be canceled by the agency.
(7)
Specify that the application, including all documents
and maps therewith, is available for public inspection at the office
of the Clerk of the Village.
E.
The agency shall make the application, including all
documents and maps associated with it, available for public inspection
at the office of the Clerk of the Village.
F.
If no timely notice of appearance has been filed as provided in the notice of hearing published pursuant to Subsections A through D of this section and the applicant waives, in writing, any public hearing on his or her application, the agency may dispense with a public hearing and in such instance shall provide public notice of the cancellation of the hearing.
The agency may establish permit fees to assist
its implementation of this chapter.
A.
Any public hearing held on a permit application received
under this chapter shall be conducted by a hearing officer designated
by the agency. The hearing officer shall have full authority to control
the conduct and procedure of the hearing and shall be responsible
that a complete record of the hearing be kept.
[Amended 1-5-1998 by L.L. No. 1-1998]
B.
Any person may appear as a party in interest, notwithstanding
the failure of such person to file a timely notice of appearance,
by appearing at the hearing and making known his or her desire to
be a party in interest. Persons who are not parties in interest may
be allowed to participate in the hearing where the hearing officer
finds that such participation would be in the public interest.
C.
All parties in interest shall be afforded an opportunity
to present oral and written arguments on issues of law and policy
and an opportunity to call witnesses in their behalf and to present
oral and written evidence on issues of fact. The hearing officer shall
permit the parties in interest to cross-examine witnesses but may
limit such cross-examination to avoid the introduction of irrelevant
or repetitious material in the record of the hearing.
A.
Where a public hearing has been held regarding a permit
application, the agency shall either issue the permit requested, with
or without conditions, or deny the application. The decision by the
agency to issue or deny a permit after public hearing shall be based
on the record of the hearing and shall be made in writing within 30
days of the agency's receipt of the hearing record.
B.
Where no public hearing regarding a permit application has been held, either because a hearing was determined not to be necessary pursuant to § 161-8C of this chapter or because no notice of appearance was filed with regard to the public hearing and the hearing was canceled pursuant to § 161-9, the agency shall compile an official file consisting of documents submitted by the applicant and all additional documents relied on by the agency with respect to the application. The agency may also take notice of general, technical or scientific facts within the specialized knowledge of the agency. Any document made part of such official file shall be available for inspection by the applicant or any interested member of the public. On the basis of such file, the agency shall either issue the permit requested with or without conditions, deny the application or order a public hearing to be held pursuant to the provisions of the law.
C.
The decision by the agency to issue or deny a permit
or to order that a hearing be held shall be based on the official
file and shall be made in writing within 30 days of its completion
of the official file and in any event within 60 days of its receipt
of a completed application, provided that in the case where there
have been no objections filed regarding a proposed project, the issuance
of a permit shall be deemed to be a written decision by the agency.
D.
A copy of the decision of the agency on each application
for a permit under this chapter shall be mailed by the agency as soon
as practicable following such decision to the applicant and to each
local government within whose boundaries the proposed regulated activity
or any portion thereof is located and if a public hearing has been
held regarding the application, to each party in interest.
A.
In granting, denying or conditioning any permit, the agency shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and protection or enhancement of the several functions of the freshwater wetlands and the benefits derived therefrom which are set forth in § 161-3 of this chapter.
B.
No permit shall be issued by the agency pursuant to
this chapter unless the agency shall find that:
(1)
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 the beneficial economic,
social and agricultural development of the Village.
(2)
The proposed regulated activity is consistent with
the land use regulations applicable in the Village pursuant to § 24-0903
of Article 24 of the State Environmental Conservation Law.
(3)
The proposed regulated activity is compatible with
the public health and welfare.
(4)
The proposed regulated activity is reasonable and
necessary.
(5)
There is no reasonable alternative for the proposed
regulated activity on a site which is not a freshwater wetland or
adjacent area.
C.
The applicant shall have the burden of demonstrating
that the proposed regulated activity will be in accord with the standards
set forth in this section.
D.
Duly filed written notice by the state or any agency
or subdivision thereof to the agency, that the state or any such agency
or subdivision is in the process of acquiring the affected freshwater
wetland on which a proposed regulated activity would be located by
negotiation or condemnation shall be sufficient basis for denial of
a permit for such regulated activity. Such notice may be provided
at any time prior to the agency's decision to issue or deny a permit
for the regulated activity.
A.
Any permit issued pursuant to this 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 agency's rules and regulations adopted pursuant
to this chapter.
B.
Every permit issued pursuant to this chapter shall
contain the following conditions:
(1)
The agency shall have the right to inspect the project
from time to time.
(2)
The permit shall expire on a date certain.
(3)
The permit holder shall notify the agency of the date
on which project construction is to begin, at least five days in advance
of such date.
(4)
The agency's permit shall be prominently displayed
at the project site during the undertaking of the activities authorized
by the permit.
C.
The agency shall set forth, in writing, in the file
it keeps regarding a permit application, its findings and reasons
for all conditions attached to any permit.
