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 give this chapter its most reasonable application in carrying out the regulatory goals stated in §
195-1:
AGRICULTURAL ACTIVITY
The activity of the landowner in making reasonable use of water resources for agricultural purposes, harvesting the natural products of wetlands, excluding peat mining and timber harvesting, and selective cutting of trees. "Agricultural activity" does not mean clear-cutting of trees; filling or deposition of dredged soil or draining for growing agricultural products or for other purposes.
APPLICANT
A person or entity who files an application for a permit under this chapter and who is either the owner of the land on which the proposed regulated activity would be located, a contract vendee, a lessee of the land, the person who would actually control and direct the proposed activity or the authorized agent of such person.
AQUACULTURE
Cultivating and harvesting products, including fish and vegetation, that are produced naturally in wetlands and installing cribs, racks and other in-water structures for cultivating these products, but does not include filling, dredging, peat mining, clear-cutting or the construction of any buildings or any water-regulating structures such as dams.
BOUNDARY OF A WETLAND
The approximate outer limit of the soils and/or vegetation as defined under "wetland" and shown on the City of Rye Wetlands and Watercourses Map.
CITY BUILDING INSPECTOR
The Building Inspector for the City of Rye or such representative as designated by the City Manager.
CITY NATURALIST
The Naturalist for the City of Rye or such qualified representative as designated by the City Manager.
CITY PLANNER
The City Planner for the City of Rye or such representative as designated by the City Manager.
CLEAR-CUTTING
Any cutting of more than 30% of trees four inches or more in diameter at approximately 4 1/2 feet above the ground over any ten-year cutting cycle as determined on the basis of wetland area per lot or group of lots under single ownership, including any cutting of trees which results in the total removal of one or more species, whether or not the cut meets or exceeds the thirty-percent threshold.
COMMISSIONER
The Commissioner of the Department of Environmental Conservation of the State of New York.
DAMS AND WATER-CONTROL MEASURES
Barriers used or intended to or which, even though not so intended in fact do, obstruct the flow of water or raise, lower or maintain the level of water.
GRADING
To adjust the degree of inclination of the natural contours of the land, including leveling, smoothing and other modification of the natural land surface.
GROWING SEASON
That portion of the year when soil temperatures are above biologic zero (5º C.); the growing season for the City of Rye is March through October.
HYDRIC SOIL
A soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part, and as further defined under "wetland."
HYDROPERIOD
The seasonal pattern of the water level of a wetland, which defines the rise and fall of the wetland surface and subsurface water.
HYDROPHYTIC VEGETATION
Macrophytic plant life growing in water or on soils that are at least periodically anaerobic as a result of excessive water content, and as further defined under "wetland."
MACROPHYTIC
Referring to any plant species that can be readily observed with the naked eye.
MATERIAL
Liquid, solid or gaseous substances, including but not limited to soil, silt, gravel, rock, sand, clay, peat, mud, debris and refuse; any organic or inorganic compound, chemical agent or matter; sewage sludge or effluent; or industrial or municipal solid waste.
OFFICIAL SUBMITTAL DATE
The date on which an application is officially submitted to the Planning Commission is the date of the first regular meeting of the Planning Commission following the filing of the application and supporting plans pursuant to the provisions of this chapter.
PERMIT
That form of written approval required by this chapter for the conduct of a regulated activity within a wetland, watercourse or wetland/watercourse buffer.
POLLUTION
Any harmful thermal effect or the contamination or rendering unclean or impure of any wetland or waters by reason of erosion or by any waste or other materials discharged or deposited therein.
PROJECT
Any proposed or ongoing action which may result in direct or indirect physical or chemical impact on a wetland, including but not limited to any regulated activity.
REMOVE
To dig, dredge, suck, bulldoze, dragline, blast or otherwise excavate or grade or the act thereof.
RENDERING UNCLEAN OR IMPURE
Any alteration of the physical, chemical or biological properties of any wetland or waters, including but not limited to change in odor, color, turbidity or taste.
SELECTIVE CUTTING
Any cutting of trees within the boundaries of a wetland or wetland/watercourse buffer that is not "clear-cutting" as defined in this section.
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)
The law pursuant to Article
8 of the New York State Environmental Conservation Law providing for environmental quality review of actions which may have a significant adverse effect on the environment.
STRUCTURE
Anything constructed or erected, the use of which requires location on or in the ground or attachment to something having location on the ground, including but not limited to buildings, tennis courts and swimming pools.
SUBDIVISION
See Chapter
170, Subdivision of Land, of the Code of the City of Rye.
WATERCOURSE
Any natural or artificial, permanent or intermittent, public or private water body or water segment, such as ponds, lakes, reservoirs, brooks and waterways, that is contained within, flows through or borders on the City of Rye.
WETLAND
Any area which meets one or more of the following criteria:
A.
Lands and waters of the state that meet the definition provided in § 24-0107, Subdivision 1, of the New York State Freshwater Wetlands Act (see Article 24 and Title 23 of Article 71 of the Environmental Conservation Law) and have an area of at least 12.4 acres or, if smaller, have unusual local importance as determined by the Commissioner pursuant to § 24-0301, Subdivision 1, of the Act. The approximate boundaries of such lands and waters are indicated on the official freshwater wetlands map promulgated by the Commissioner pursuant to § 24-0301, Subdivision 5, of the Act or such a map that has been amended or adjusted pursuant to § 24-0301, Subdivision 6, of said Act.
B.
Lands and waters of the state that meet the definition provided in § 25-0103, Subdivision 1, of the New York State Tidal Wetlands Act (see Article 25 of the Environmental Conservation Law). The approximate boundaries of such lands and waters are indicated on the official tidal wetlands inventory promulgated by the Commissioner pursuant to § 25-0201 of the Act or such an inventory that has been amended or adjusted pursuant to § 25-0201, Subdivision 6, of said Act.
C.
All other areas that comprise hydric soils or are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of hydrophytic vegetation, all as defined by the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989), which manual shall be available for inspection in the City Naturalist's office and in the City Planner's office.
WETLAND HYDROLOGY
The sum total of wetness characteristics in areas that are inundated or have saturated soils for a sufficient duration to support hydrophytic vegetation.
WETLANDS AND WATERCOURSES MAP
The City of Rye Wetlands and Watercourses Map, adopted by the Council of the City of Rye pursuant to this chapter or such map as has been amended or adjusted and on which are indicated the approximate boundaries of the known wetlands, watercourses and wetland/watercourse buffers defined pursuant to this chapter. The map shall be available for inspection in the City Naturalist's office and in the City Planner's office. Areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers defined and regulated by this chapter. General Note: The City of Rye Wetlands and Watercourses Map is intended to provide general guidance in locating and determining those areas which constitute wetlands and watercourses and their related buffers, as defined in this chapter. The boundaries of wetlands and watercourses and related buffers shall be delineated by the Planning Commission or its consultant in the field.
WETLAND/WATERCOURSE BUFFER
A specific area surrounding a wetland/watercourse extending 100 feet horizontally away from and paralleling the wetland/ watercourse boundary.
No regulated activity shall be conducted in a wetland, watercourse or wetland/watercourse buffer without a written permit from the Planning Commission and full compliance with the terms of this chapter and other applicable regulations. All activities that are not permitted as of right or by permit shall be prohibited. The City Planner, City Engineer and City Building Inspector shall, in the course of reviewing any application before them, advise the applicant of the existence of this chapter and refer information regarding such applications to the City Naturalist.
A.
Wetlands and watercourses map — purpose and applicability.
(1)
Purpose. Wetlands, watercourses and wetland/watercourse buffers are defined in §
195-3 of this chapter and are generally indicated on the Rye City Wetlands and Watercourses Map. The City of Rye Wetlands and Watercourses Map is intended to provide general guidance in locating and determining those areas which constitute wetlands and watercourses, their boundaries and their related buffers. Areas indicated as being wetlands, watercourses or wetland/watercourse buffers may not actually be a wetland, watercourse or wetland/ watercourse buffer and areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers. The boundaries of wetlands and watercourses and related buffers shall be delineated by the Planning Commission or their consultant in the field.
(2)
Applicability to activities requiring other City approvals. Areas indicated as being wetlands, watercourses or wetland/watercourse buffers may not actually be a wetland, watercourse or wetland/watercourse buffer and areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers. Potential applicants for permits required by this chapter and other City approvals shall attach a copy of the determination from the City Naturalist to their application. The granting of an approval by a City agency or official pursuant to any other chapter of the Code of the City of Rye or the granting of an approval by any state or federal agency shall in no way excuse or exempt any person from the requirements of this chapter even if the property is not shown as being a wetland, watercourse or wetland/watercourse buffer on the map. In the case of City official and agency approvals, such officials and agencies shall, upon notification by the City Naturalist that an activity also requires a permit pursuant to this chapter, take such action as is necessary to stop any part of the work being undertaken that is subject to regulation pursuant to this chapter until a permit has been granted.
(3)
Applicability to activities not requiring other City approvals. Areas not indicated as being a wetland, watercourse or wetland/watercourse buffer may contain wetlands, watercourses and wetland/watercourse buffers subject to this chapter, but a permit under this chapter can only be required upon a finding by the Planning Commission that the area is a wetland, watercourse or wetland/watercourse buffer. Such finding shall be in writing and shall also authorize the City Naturalist to issue a stop-work order if the Planning Commission finds that the activity has not been substantially completed. Said finding must be approved by an affirmative vote of at least five members of the Planning Commission, and thereafter the Planning Commission shall delineate the boundary of the wetland, watercourse and wetland/watercourse buffer at the cost of the City and recommend an amendment to the map for the purpose of future regulation. In the event that the Planning Commission makes a finding that a wetland, watercourse or wetland/watercourse buffer does exist but does not authorize the City Naturalist to issue a stop-work order, said activity shall be deemed to have been permitted as if a permit had been issued. However, the Planning Commission, City Naturalist and their agents or employees may thereafter, with the owner's permission, enter upon said land to delineate the boundary and seek an appropriate amendment to the map. If the owner of the property bars such entry, the City Naturalist, Planning Commission and their agents or employees are empowered to apply to the City Court for an administrative search warrant permitting entry onto said land to delineate the boundary and seek an appropriate amendment to the map.
B.
City Naturalist determination and appeals.
[Amended 5-6-1992 by L.L. No. 5-1992]
(1)
City Naturalist's determination. The City Naturalist, in consultation with the Conservation Commission/Advisory Council and the City Planner, shall, within five business days of receiving a written request for a determination, determine if the proposed activity is in an area that may be subject to the requirements of this chapter. The written request for such determination must be accompanied by a payment of a fee to the City of Rye. Such fee shall be set annually by resolution of the City Council. The City Naturalist shall make one of two possible determinations: that the area may be subject to the requirements of this chapter or that the area is not subject to the requirements of this chapter. In performing this evaluation, the City Naturalist should consult the Rye City Wetlands and Watercourses Map. In addition, the City Naturalist may also consult the Westchester County Soil Survey Maps, prepared by the United States Department of Agriculture Soil Conservation Service, revised in 1986 and as further revised from time to time, which show the approximate location of hydric soils that indicate the potential presence of a wetland as defined in this chapter, and may also consult the National List of Plant Species That Occur in Wetlands: Northeast (Region 1), the list of upland wetland plant species developed by the United States Department of the Interior Fish and Wildlife Service in cooperation with the National and Regional Interagency Review Panels, as amended and updated from time to time. The maps and list shall be available for inspection in the City Naturalist's office and in the City Planner's office.
[Amended 12-17-1997 by L.L. No. 19-1997]
(2)
Appeal of City Naturalist's determination that a property is not subject to the requirements of this chapter. In the case of a subdivision or site development plan application, a resident or property owner in the City of Rye may petition the Planning Commission to reverse a determination of the City Naturalist that a property is not subject to the requirements of this chapter. The petitioner shall have the burden of demonstrating that the City Naturalist's determination should be reversed. Such petition must be filed within 15 business days of the City Naturalist's determination. Said petition shall be in the form set forth in the Planning Commission's rules and regulations adopted pursuant to this chapter.
(3)
Appeal of City Naturalist's determination that a property may be subject to the requirements of this chapter. If the City Naturalist determines that an area may be subject to the requirements of this chapter, the property owner may petition the Planning Commission to determine that the area is not subject to the requirements of this chapter. Said petition shall be in the form of the permit application as set forth in §
195-5B, but the application need only provide the data required under §
195-5B(2)(b) for a waiver. If additional information is needed by the Planning Commission to decide the petition, the petitioner shall provide said additional information. The petitioner shall have the burden of demonstrating that the City Naturalist's determination was incorrect. Such petition must be filed within 15 business days of the City Naturalist's determination. If the Planning Commission determines that the decision of the City Naturalist was correct, the property owner may complete the application by paying the permit application fee and submitting all other required permit information or withdraw the application.
C.
Regulated activities. Except as specified in §
195-4D, the following are regulated activities when within a wetland, watercourse or wetland/watercourse buffer and may be granted a permit upon written application to the Planning Commission:
(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 waste 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 any area of trees.
(11)
Removal or cutting of any vegetation, except selective cutting as permitted in §
195-4D(2).
(12)
Deposition or introduction of organic or inorganic chemicals, including pesticides and fertilizers.
(13)
Any agricultural activity which involves the draining or excavation of a wetland, except as permitted in §
195-4D(7).
(14)
Any other activity that may impair the natural function(s) of a wetland as described in §
195-1 of this chapter.
D.
Uses as of right — no permit required. The following uses shall be allowed as of right within a wetland, watercourse or wetland/watercourse buffer without a permit to the extent that they are not prohibited by any other chapter and to the extent that they do not constitute a pollution or erosion hazard or interfere with proper drainage:
(1)
Normal ground maintenance, including mowing, trimming of vegetation and removal of dead or diseased vegetation.
(2)
Selective cutting as defined in §
195-3.
(3)
Repair of existing structures, including interior renovations, walkways, walls and docks.
(4)
Decorative landscaping and planting in wetland/watercourse buffers, excluding those activities regulated in §
195-4C(11) and
(12).
(5)
Public health activities, orders and regulations of the Westchester County Department of Health and/or the New York State Department of Health for emergencies only.
(6)
Deposition or removal of natural products of wetlands in the process of recreational or commercial fishing, shellfishing, aquaculture, hunting or trapping, but excluding excavation and removal of peat or timber, except as provided in §
195-4C(2).
(7)
Agricultural activities as defined in §
195-3.
(8)
Normal beach maintenance, including restoration of an eroded shoreline to its original state.
E.
Rules for determining boundaries. The Planning Commission shall determine the boundaries of a wetland or watercourse. The boundaries of a wetland ordinarily shall be determined by field investigation. In so doing the Planning Commission may consult and/or may require the applicant to consult with qualified biologists, hydrologists, soil scientists, ecologists/botanists/zoologists or other experts as necessary to make this determination. After the boundary has been determined by the Planning Commission, it may require, at the expense of the applicant, a survey to be drawn up by a licensed land surveyor.
[Amended 6-16-1993 by L.L. No. 8-1993]
The City Planner shall refer all applications and proposed replacement/compensation plans prepared pursuant to §
195-5E to the Conservation Commission/Advisory Council for review and report. The Conservation Commission/Advisory Council shall report back to the Planning Commission within 30 days of the date of the referral by the City Planner when an activity subject to regulation under this chapter also requires Planning Commission approval pursuant to another chapter of the Code of the City of Rye. When the only other approval involves Chapter
73, Coastal Zone Management Waterfront Consistency Review, the requirements described below shall apply. When an activity subject to regulation under this chapter does not also require Planning Commission approval pursuant to another chapter of the Code of the City of Rye and in the case of an activity regulated under this chapter and only Chapter
73, Coastal Zone Management Waterfront Consistency Review, the Conservation Commission/Advisory Council shall report back to the Planning Commission within 20 days of the date of the referral by the City Planner. Failure to reply within the specified time period may be deemed as indicating no objections to the application. In cases where Planning Commission determinations under this chapter are not consistent with the Conservation Commission/Advisory Council report, the Planning Commission shall issue written findings detailing the basis for their determination in variance with the Conservation Commission/Advisory Council report. The City Planner shall provide a copy of the proposed permit decisions and conditions to the Chairman of the Conservation Commission/Advisory Council concurrent with distribution of such proposed permit decisions and conditions to the Planning Commission.
The City Naturalist shall be the enforcement officer for this chapter. No work or activity subject to review under this chapter shall be commenced or undertaken until the City Naturalist has been presented with a wetland permit approved by the Planning Commission. The City of Rye is specifically empowered to seek injunctive relief restraining any violation or threatened violation of any provisions of this chapter and/or compel the restoration of the affected wetland, watercourse or wetland/watercourse buffer to its condition prior to the violation of the provisions of this chapter.
Any determination, decision or order of the Planning Commission may be judicially reviewed pursuant to Article 78 of the Civil Practice Law and Rules in the Supreme Court for the county in which the wetlands affected are located within 30 days after the date of filing of the determination, decision or order of such Planning Commission with the City Clerk of the City of Rye.
If any clause, sentence, paragraph, section, or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances, and to this end the provisions of each section of this chapter are hereby declared to be severable.