LL #02-2013NEW YORK STATE DEPARTMENT OF STATE
41 STATE STREET
Local Law Filing ALBANY, NY 12231
(Use this form to file a local law with the Secretary of State.)
Text of law should be given as amended. Do not include matter being eliminated and do not use
italics or underlining to indicate new matter.
❑ County
❑ City of Wappinger
O Town
❑ Village
Local Law No. 2 of the year 20 13
A local law entitled "Local Law No. 2 of the Year 2013, for the purpose of amending Chapter 122,
(Insert Title)
Fees and Fines, and Chapter 137, Freshwater Wetland, Waterbody and Watercourse
Protection, of the Town Code",
Be it enacted by the Town Board of the
ame o egi alive o y
❑ County
❑ City of Wappinger as follows:
A Town
❑ Village
(TEXT COMMENCES ON NEXT PAGE)
(If additional space is needed, attach pages the same size as this sheet, and number each.)
DOS -239 (Rev. 05/05) Page 1 of 3
LOCAL LAW # OF THE YEAR 2013
BE IT ENACTED by the Town Board of the Town of Wappinger as follows:
Section 1: Title
This Local Law shall be known and cited as "Local Law #_ of 2013, for the purpose of
amending Chapter 122, Fees and Fines, and Chapter 137, Freshwater Wetland,
Waterbody and Watercourse Protection, of the Town Code."
Section 2: Legislative Intent
This local law is determined to be an exercise of the police powers of the Town to protect
the public health, safety and welfare of its residents. The Town Board believes that it is
reasonable and appropriate to update and amend Chapter 122, Fees and Fines, and
Chapter 137, Freshwater Wetland, Waterbody and Watercourse Protection, of the Town
Code.
Section 3: Code Amendments — Chapter 122, Fees and Fines
A new Section 122-16.F.1 shall be added and shall read as follows:
F.1 Chapter 137, Freshwater Wetland, Waterbody and Watercourse Protection.
(1) § 137-10B(4), escrow fund: $1,000.
Section 4: Code Amendments — Chapter 137, Freshwater Wetland, Waterbody
and Watercourse Protection
1. The following definition in Section 137-5 shall be amended to read as follows:
APPROVAL AUTHORITY
The municipal or administrative board or public official or municipal employee
empowered to process and grant or deny permits under this chapter. When a
wetlands permit is sought in conjunction with a site plan, subdivision and/or
special permit, the Planning Board shall assume the role of the approval authority.
In all other cases, the approval authority shall be the Building Inspector or
Municipal Code Enforcement Officer.
2. Section 137-6 shall be amended to read as follows:
§ 137-6. Regulated, as -of -right, prohibited and exempt activities.
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A. Regulated activities. Except as provided in Subsections B, C and D below,
no person shall conduct any of the following regulated activities within any
freshwater wetland or adjacent one -hundred -foot buffer area unless such
person has first obtained a permit pursuant to this chapter:
(1) Placement or construction of any structure.
(2) Any form of draining, dredging, excavation or removal of material
either directly or indirectly.
(3) Any form of dumping, filling or depositing of material either directly
or indirectly.
(4) Installation of any service lines or cable conduits.
(5) 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 into
or so as to drain into a wetland.
(6) Alteration or modification of natural features and contours.
(7) Alteration or modification of natural drainage patterns.
(8) Construction of dams, docks -or other water control devices, pilings
or bridges, whether or not they change the natural drainage
characteristics.
(9) Installation of any pipes or wells.
(10) Clear -cutting.
(11) Removal or cutting of any vegetation except as permitted in § 137-
6B.
(12) Any agricultural activity, not conducted in an agricultural district,
which involves any other activity in this subsection A.
(13) Excavation and removal of peat.
(14) Any other activity that may impair the natural function(s) of a
wetland.
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B. As -of -right activities. No permit under this chapter shall be required for any
of the following activities, provided they do not constitute a pollution or
erosion hazard or interfere with proper drainage and do not require
structures, grading, fill, draining or dredging for which a permit may be
required:
(1) The deposit or removal of the natural products of the wetlands by
recreational or commercial fishing, shellfishing, aquiculture, hunting
or trapping where otherwise legally permitted.
(2) Outdoor recreation activities that do not require construction or that
do not materially alter the natural state of the land, including use of
field trails for nature study, hiking, swimming, skin diving and
boating, where otherwise legally permitted.
(3) Normal ground maintenance, including mowing and trimming of
vegetation, but excluding removal of vegetation that may cause
erosion of sediment into a wetland, waterbody, or watercourse.
(4) Repair of existing decorative landscaping and planting in a wetland,
waterbody, or watercourse buffer zone.
(5) Repair of existing walkways, walls, and driveways.
(6) Public health activities, in emergencies only, of the Dutchess County
Department of Health and/or New York State Department of Health.
(7) Operation and maintenance of existing dams and water control
devices.
(8) Decorative planting in a buffer.
C. Prohibited activities. It shall be unlawful for any person to place or deposit
animal wastes, chemical wastes or sewage effluent within a wetland or its
buffer, or to introduce influents of sufficiently high thermal content as to
cause deleterious ecological effect.
D. Exempt activities. A wetland permit shall not be required for:
(1) Activities on any residentially zoned lot which is 80,000 square feet
or less in size and which contains an existing home.
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(2) Farm operations, as defined in the New York State Agriculture and
Markets Law, when conducted in an agricultural district, unless the
proposed disturbance for the farm operation has the potential to
result in substantial off-site impact.
3. Section 137-7.A shall be amended to read as follows:
A. Any person proposing to conduct or cause to be conducted a regulated
activity requiring a permit under this chapter shall file an application with
the appropriate approval authority. For wetland permits sought in
conjunction with a site plan, subdivision and/or special permit application
the approval authority shall be the Planning Board. For all other wetlands
permits sought, the approval authority shall be the Building Inspector or
Municipal Code Enforcement Officer.
4. Section 137-8 shall be amended to read as follows:
§ 137-8. Decision on application.
When the approval authority is the Planning Board, a decision on the wetlands
permit shall be rendered by the Planning Board in conjunction with a decision on
an application for site plan, subdivision and/or special permit approval, the
wetlands permit being included within any approval granted by the Planning
Board for said applications. When the Building Inspector or Municipal Code
Enforcement Officer is the approval authority, a decision on the wetlands permit
will be rendered within 30 days of a receipt of a complete application.
5. Section 137-10 shall be amended to read as follows:
§ 137-10. Conditions for permit use.
A. Any permit issued pursuant to this chapter may be issued with conditions,
consistent with this chapter. Such conditions may be attached as are
necessary to ensure the preservation and protection of affected freshwater
wetlands and to ensure 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.
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(2) The permit holder shall notify the agency of the date on which the
project construction is to begin, at least five days in advance of such
date.
(3) The agency's permit shall be prominently displayed at the project
site during the undertaking of the activities authorized by the permit.
(4) The approval authority may monitor or may cause to have monitored
projects according to the specifications set forth in the permit, to
determine whether the elements of the permit conditions and
mitigation plan, if required, have been satisfied and whether the
restored or created wetland function(s) and acreage mitigate the
impacted function(s) and acreage lost. If monitoring of the project is
required by the approval authority, such authority shall also require
the applicant to fund and maintain an escrow account in accordance
with § 137-1OB(4)(c)[4] below and Chapter 122, Article IV, § 122-
16F.1(1) of the Code.
(a) To this end, the approval authority may contract with
qualified wetland professionals, and may require the applicant
to contract with qualified wetland professionals at the
expense of the applicant. A quarterly monitoring report
prepared by the appropriate monitor shall be submitted to the
approval authority.
(b) Long-term maintenance and monitoring is generally needed
to assure the continued viability of mitigation wetlands. Any
mitigation plan prepared pursuant to this chapter and accepted
by the approval authority shall become part of the permit for
the application and shall be incorporated in a preservation and
maintenance covenant indexed against the property as
hereinafter provided.
(c) The requirements for maintenance and monitoring shall be
specified in the written mitigation plan and referenced in the
permit, and shall include but not be limited to:
[1] A five-year maintenance and monitoring period for
mitigation wetlands.
[2] Field measurements by a qualified wetland
professional to verify the size and location of the
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impacted wetland area and the restored/replacement
wetland area.
[3] Field verification by a qualified wetland professional
of the vegetative, hydrologic and soils criteria as
specified in the mitigation plan and permit.
[4] The approval authority may require the establishment
and maintenance of an escrow account, from which
withdrawals shall be made to reimburse the Town for
the cost of professional monitoring services. In such
case, the applicant shall deposit with the Town
Comptroller or Town Accountant, via certified check,
a sum of money as set forth in Chapter 122, Article IV,
§ 122-16F.1(1) of the Code. The Town Comptroller or
Town Accountant shall pay from these funds the fees
charged by any professionals employed by the Town
to monitor the project. Said fees shall be submitted by
voucher. It is the intent of these regulations to ensure
that the applicant always has on deposit with the Town
an adequate amount of funds to ensure that the Town
will never subsidize applicant monitoring costs at any
time. The applicant shall be provided with copies of
the Town vouchers for such services as they are
submitted to the Town. The applicant shall deposit
additional funds into such account to bring its balance
up to 100% of the amount of the full escrow deposit by
the last day of each month. If such account is not fully
replenished by the last day of the month, the Town
may issue and stop -work order, if applicable, and the
applicant may be deemed to be in violation of this
chapter. No refunds of any funds remaining on deposit
in escrow shall be issued until after all pertinent
professional monitoring charges have been paid and
the maintenance period has expired.
(5) The permit shall require that a conservation easement or a
preservation and maintenance covenant, as applicable, which meets
the satisfaction of the approval authority is placed on all wetland and
wetland buffer areas to be preserved and protected, and maintained
as applicable, in accordance with the provisions of Subsection A
above.
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(6) The permit shall require that all wetland and wetland buffer areas to
be protected during construction shall be fenced as deemed
appropriate by the Planning Board. Such fencing shall also apply, as
deemed appropriate by the Planning Board, to disturbance and
clearing limit lines.
(7) The permit shall require that all wetlands and wetland buffer areas to
be permanently protected shall be physically demarcated in the field
as deemed appropriate by the Planning Board.
(8) If deemed appropriate by the Planning Board, the permit may
specify how the wetland buffer areas are to be managed. Further,
depending upon the quality of the wetland and/or its functions, the
permit may require that the buffer areas be managed in accordance
with the three -zone riparian buffer system developed by the USDA
Forest Service.
(NOTE: http://www.na.fs.fed.us/spfo/pubs/n_resource/buffer/cover.htm.)
C. The approval authority shall set forth, in writing, in the file it keeps
regarding a permit application, its fmdings and reasons for all conditions
attached to any permit.
6. Section 137-11.A shall be amended to read as follows:
A. The approval authority is hereby authorized to require the applicant to post
performance and maintenance agreements, secured by a surety bond, letter
of credit or cash deposit in such amounts as will secure compliance with the
requirements, conditions and limitations set forth in the permit. The
performance bond secured as above set forth shall be posted prior to
commencement of any work authorized under the permit. The particular
amount of the security shall be established by the approval authority upon
consultation with the engineer to the Town, consistent with the purposes of
this chapter so as to ensure the faithful compliance with the requirements,
conditions and limitations set forth in the permit. The performance
agreement and security shall remain in effect until all work authorized by
the permit has been completed to the reasonable satisfaction of the approval
authority and upon concurrence of the Engineer to the Town.
The approval authority is also authorized to require the applicant to post a
maintenance agreement secured by a surety bond, letter of credit or cash
deposit in such amounts as will secure any obligation to monitor or
maintain the work authorized in the permit, and as the same may be
referenced in the conservation easement and preservation covenant. The
maintenance agreement shall be posted for a period not to exceed five
years. In the event of a breach of any of the terms, covenants and
conditions contained in either the performance agreement or maintenance
agreement, the approval authority is authorized to call the security posted
and utilize the proceeds thereof to fulfill the requirements, conditions,
limitations and obligations set forth in the permit. The approval authority is
also authorized to institute an action in any court of competent jurisdiction
to seek specific performance of the obligations set forth in the performance
agreement or maintenance agreement. The performance and maintenance
agreements shall provide that in the event the approval authority is
compelled to enforce the provisions thereof by commencement of an action
in a court of competent jurisdiction, the agreements shall require that the
prevailing party shall be entitled to recover reasonable counsel fees as
determined by the court. The approval authority shall set forth, in writing,
its findings and reasons for imposing a performance agreement or
maintenance agreement as secured as aforesaid. Said findings and reasons
shall be set forth in its resolution of approval if by the Planning Board, or
contained in a separated statement if issued by the Municipal Code
Enforcement Officer.
Section 5: Ratification, Readoption and Confirmation
Except as specifically modified by the amendments contained herein, the Code of the
Town of Wappinger as adopted and amended from time to time thereafter is otherwise to
remain in full force and effect and is otherwise ratified, readopted and confirmed.
Section 6: Numbering for Codification
It is the intention of the Town of Wappinger and it is hereby enacted that the provisions
of this Local Law shall be included in the Code of the Town of Wappinger; that the
sections and sub -sections of this Local Law may be re -numbered or re -lettered by the
Codifier to accomplish such intention; that the Codifier shall make no substantive
changes to this Local Law; that the word "Local Law" shall be changed to "Chapter,"
"Section" or other appropriate word as required for codification; and that any such
rearranging of the numbering and editing shall not affect the validity of this Local Law or
the provisions of the Code affected thereby.
Section 7: Separability
The provisions of this Local Law are separable and if any provision, clause, sentence,
subsection, word or part thereof is held illegal, invalid or unconstitutional, or inapplicable
to any person or circumstance, such illegality, invalidity, or unconstitutionality, or
inapplicability, shall not affect or impair any of the remaining provisions, clauses,
0
sentences, subsections, words or parts of this Local Law or their application to other
persons or circumstances. It is hereby declared to be the legislative intent of the Town
Board of the Town of Wappinger that this Local Law would have been adopted if such
illegal, invalid or unconstitutional provision, clause, sentence, subsection, word or part
had not been included therein, and if such person or circumstance to which the Local Law
or part thereof is held inapplicable had been specifically exempt therefrom.
Section 8: Effective Date
This Local Law shall take effect immediately upon filing with the Secretary of State as
provided by the Municipal Home Rule Law.
JADOCS2\500\Wappinger\Code Amendmts\wetland amends 9-20-12 clean final.dhs.doc
10
(Complete the certification in the paragraph that applies to the filing of this local law and
strike out that which is not applicable.)
1. (Final adoption by local legislative body only.)
1 hereby certify that the local law annexed hereto, designated as local law No. 2 of 20 13 of
the X69k)(MATown)(MW of Wappinger was duly passed by the
Town Board on January 28 20 13 in accordance with the applicable
(Name of Legislative Body)
provisions of law.
2. (Passage by local legislative body with approval, no disapproval or repassage after disapproval by the Elective
Chief Executive Offices'*.)
I hereby certify that the local law annexed hereto, designated as local law No. of 20 of
the (County)(City)(Town)(Village) of was duly passed by the
on 20 and was (approved)(not approved)
(Name of Legislative Body)
(repassed after disapproval) by the and was deemed duly adopted
(Elective Chief Executive Officer*)
on 20 y in accordance w ith the applicable provisions of law.
3. (Final adoption by referendum.)
I hereby certify that the local law annexed hereto, designated as local law No.
the (County)(City)(Town)(Village) of
(Name of Legislative Body)
(repassed after disapproval) by the
of 20 of
was duly passed by the
on 20 -and was (approved)( not approved)
(Elective Chief Executive Officer*)
Such local law was submitted to the people by reason of a (mandatory)(permissive) referendum, and received the affirmative
vote of a majority of the qualified electors voting thereon at the (general) (special)(annual) election held on
20 -in accordance with the applicable provisions of law.
4. (Subject to permissive referendum and final adoption because no valid petition was filed requesting referendum.)
I hereby certify that the local law annexed hereto, designated as local law No. of 20 of
the (County)(City)(Town)(Village) of was duly passed by the
(Name of Legislative Body) on 20 and was (approved)(not approved)
(repassed after disapproval) by theon 20 . Such local
(Elective Chief Executive Officer*)
law was subject to permissive referendum and no valid petition requesting such referendum was filed as of
20 in accordance with the applicable provisions of law.
* Elective Chief Executive Officer means or includes the chief executive officer of a county elected on a county -wide basis or, if there be none,
the chairperson of the county legislative body, the mayor of a city or village, or the supervisor of a town where such officer is vested with the
power to approve or veto local laws or ordinances.
DOS -239 (Rev. 05/05) Page 2 of 3
5. (City local law concerning Charter revision proposed by petition.) of 20 of
I hereby certify that the local law annexed hereto, designated as local law No.
the City of having been submitted to referendum pursuant to the provisions of section (36)(37) of
the Municipal Home Rule Law, and having received the affirmative v2otte of a majority mehof the ope ative. electors of such city voting
thereon at the (special)(general) election held on
6. (County local law concerning adoption of Charter.) of 20 of
I hereby certify that the local law annexed hereto, designated as local law No.
the County of State of New York, having been submitted to the electors at the General Election of
November_--- 20 pursuant to subdivisions 5 and 7 of section 33 of the Municipal Home Rule Law, and having
rity of the
received the affirmative vote of a majority of the qualified
electors
n t voting ansas of said county aa d general elections
became oper t ve
qualified electors of the towns of said county considered as a u
(If any other authorized form of final adoption has been followed, please provide an appropriate certification.)
me is a
I further certify that I have compared the precedingf u hlocal
inal local law, and the original
was finally ad this
tedoffice
the manner indicated at ndicated n
correct transcript therefrom and of the whole o 9
paragraph 1 , above.
Clerk -of the county legislative body, City, Town or Village Clerk or
officer designated by local legislative body
Date:
(Sea!)
Certification to be executed by County Attorney, Corporation Counsel, Town Attorney, Village Attorney or other
authorized attorney of locality.)
STATE OF NEWYORK
COUNTY OF D
t local awlocal annexed thereto. tains the correct text and that all proper proceedings have been
I, the undersigned, hereby certify thatforegoing
aw con
had or taken for the enactment of th
Signature
Albert P. Roberts - Town Attorney
Title
N&X*
ftof Wappinger
Town
yJ00
Date: `� X 3 -
DOS -239 (Rev. 05/05)
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