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2012-3192012-319 Resolution Introducing Local Law_ of 2013 Which Would Amend Chapter 122, Fees and Fines, and Chapter 137, Freshwater Wetland, Waterbody and Watercourse Protection, of the Town Code At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on December 10, 2012. The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers - Barbara Gutzler - ~ William H. Beale Vincent F. Bettina Ismay Czarniecki Michael Kuzmicz ABSENT: The following Resolution was introduced by Councilman Bettina and seconded by Councilwoman Czarniecki. WHEREAS, the Town Board is considering the adoption of Local Law _ of 2013 which would amend Chapter 122, Fees and Fines, and Chapter 137, Wetland, Waterbody and Watercourse Protection, of the Town Code; and WHEREAS, the Town Board has determined that the Proposed Action is a Type I action pursuant to Article 8 of the Environmental Conservation Law, Part 617 NYCRR (commonly known as "SEQRA") and pursuant to Chapter 117 of the Town Code (the Town's Environmental Quality Review Law which establishes locally designated Type I actions); and WHEREAS, the Town Board has determined that the proposed Local Law is an action for which there are no other Involved Agencies and that the Town Board is therefore, by default, the Lead Agency for this action. NOW, THEREFORE, BE IT RESOLVED, AS FOLLOWS: 1. The Town Board hereby adopts and incorporates the recitations and statements set forth above as if fully set forth and resolved herein. 2. The Town Board of the Town of Wappinger hereby introduces for consideration of its adoption proposed Local Law _ of 2013 in the form annexed hereto; except as specifically modified by the amendments contained therein, the Town Code as originally adopted and amended from time to time thereafter is to remain in full force and effect and is otherwise ratified, readopted and confirmed. 3. The Town Board hereby schedules a public hearing regarding the adoption of the annexed proposed Local Law _ of 2013 for 7:30 PM on the 28th day of January 2013 and the Town Clerk is hereby directed to publish notice thereof in the Town's official newspapers not less than ten (10) days prior to said public hearing date. 4. The Town Board hereby directs the Town Clerk to serve a copy of this resolution, the annexed proposed Local Law, and the public hearing notice to the municipal clerk of each abutting municipality not less than ten (10) days prior to said public hearing. The foregoing was put to a vote which resulted as follows: BARBARA GUTZLER, SUPERVISOR Voting: AYE WILLIAM H. BEALE, COUNCILMAN Voting: AYE VINCENT F. BETTINA, COUNCILMAN Voting: , AYE ISMAY CZARNIECKI, COUNCILWOMAN Voting: AYE MICHAEL KUZMICZ, COUNCILMAN Voting: AYE Dated: Wappingers Falls, New York 12/10/2012 The Resolution is hereby duly declared adopted. CHRISTINE FULTON, TOWN CLERK 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 13 7, Freshwater Wetland, Waterbody and Watercourse Protection. (1) § 137-1OB(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. 2 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 § 13 7- 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. 3 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. 4 (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. 5 (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) ofthe 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 6 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, via certified check, a sum of money as set forth in Chapter 122, Article IV, § 122-16F.1(1) of the Code. The Controller 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. 7 (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 findings 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 8 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, Readoution 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: Seuarability 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, 9 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. J:\DOCS21500\Wappinger\Code Amendmts\wetland amends 9-20-12 clean.dhs.doc 10