Town of Southampton - Zoning Law ARTICLE XIII Aquifer Protection Overlay District § 330-63. Findings. A. The Town Board of the Town of Southampton is empowered by § 263 of the Town Law of the State of New York to enact zoning regulations which, in accordance with the Town Master Plan, facilitate the adequate provision of water to the residents of the Town and also promote the health, safety and welfare of the Town. The sole source of drinking water for the Town of Southampton is its underground aquifers. The federal government has given sole source aquifer designation to this area. The aquifers must be kept pure if a continued source of potable drinking water is to be available for future generations. It is the policy of the Town Board to protect the Town's supply of drinking water in its pristine state and prevent the degradation of this valuable and essential resource. B. The Town Master Plan and subsequent studies and updates have located geographic areas in the Town where water recharge geographic areas in the Town where water recharge into the aquifers is the deepest and the greatest recharge occurs. These areas have been designated as water catchment regions. C. These water catchment regions affect the water quality for the entire Town. The types of land use which occur above the water catchment regions directly impact upon the aquifer and its quality. Thus, the type of land use in the water catchment regions must be compatible with the function of water recharge to ensure the goal of protecting the drinking water supply of the Town. D. The recent Cornell University Water Study clearly indicates the importance of regulating certain uses to preserve pure water quality. E. The Town Board has already recognized that the density of population and intensity of land use are variables which affect both water quality and quantity. Programs to reduce population density and promote open space have already been implemented which benefit both water quality and water quantity. F. Of equal importance in protecting water quality are the types of land uses which are permitted in water catchment regions. Land use regulations must be implemented which strictly regulate land uses which are incompatible with water recharge and the protection of the Town's supply of pure drinking water. G. It is the purpose of this chapter, in accordance with findings of the Cornell University Water Study, to create an Aquifer Protection Overlay District to regulate land use over those areas which have been found to be water catchment regions in order to promote the goals of the Town Master Plan and the policy of the Town Board to promote water recharge and prevent degradation of the sole source aquifer. § 330-64. Applicability. The provisions of this article shall apply to lands in the Town, outside of incorporated villages, superimposed upon the Zoning Map of the Town of Southampton, delineated as "Aquifer Protection Overlay District." § 330-65. Definitions. As used in this article, the following terms shall have meanings as indicated: CROPS — The same meaning as provided in § 301, Subdivision 2a, b, c and d, of the Agriculture and Markets Law of the State of New York. [Amended 7-10-1990 by L.L. No. 19-1990] DISTURB — Any action to change, interfere with or otherwise destroy natural vegetation beyond reasonable management purposes. [Added 11-14-1989 by L.L. No. 23-1989] FERTILIZED VEGETATION — Areas of vegetation cultivated by man which require irrigation or the application of fertilizers, pesticides, herbicides or other substances in order to grow or maintain its existence. FERTILIZER — Any substance containing one or more recognized plant nutrients which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth. HAZARDOUS SUBSTANCE — Petroleum; or any substance designated as a "hazardous substance" under Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321) or which is a hazardous waste under Title 9 of Article 27 of the State Environmental Conservation Law; or any substance listed by the State Environmental Conservation Department which, because of its quantity, concentration or physical, chemical or infectious characteristics, may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or poses a substantial present or potential hazard to human health or the environment when improperly stored or otherwise managed. [Amended 7-10-1990 by L.L. No. 19-1990] HAZARDOUS WASTES — Includes, but is not necessarily limited to, all materials or chemicals listed as "hazardous wastes" pursuant to Article 27 of the State Environmental Conservation Law or all toxic pollutants defined in Subdivision 19 of § 17-0105 of said law. HERBICIDE — Any substance used to destroy or inhibit plant growth. INCOMPATIBLE USES — Any hazardous wastes or substances that may ultimately be discharged to groundwater or the storage of such substance that may contaminate the groundwater. LOT — A single piece of land or building plot which is incapable of further subdivision under Chapter 330 of the Town Code. NATURAL VEGETATION — Existing and naturally occurring indigenous vegetation which grows and is maintained without need of irrigation or applications of fertilizers, pesticides, herbicides or other substances. PESTICIDE — Any substance used to destroy or inhibit pests such as rodents and insects. SEPTAGE — The contents of a septic tank, cesspool or other individual sewage treatment facility which receives sewage wastes. TRACT — Any parcel of real property capable of subdivision pursuant to all applicable requirements. WASTE DISPOSAL AREA — Land used for the depositing of waste materials such as landfills. WASTE MATERIALS — Unwanted or discarded solid, liquid or gaseous materials. § 330-66. Construal with other statutes. A. The provisions of Chapter 247, Open Space, of this Code shall be applicable to lands located within the overlay district zoned for residential use. B. Lands within the overlay district are designated critical environmental areas pursuant to the State Environmental Quality Review Act. Editor's Note: See § 8-0101 of the Environmental Conservation Law. C. Incompatible uses within the overlay district shall be restricted or prohibited as provided by § 15-0514 of the Environmental Conservation Law of the State of New York and the rules and regulations promulgated thereunder. D. Whenever the provisions of any other statute, law, rule or regulation impose stricter standards to protect groundwater quality, said stricter standard shall govern. § 330-67. Protection of natural vegetation. [Amended 5-13-1986 by L.L. No. 7-1986; 12-27-1988 by L.L. No. 26-1988; 11-14-1989 by L.L. No. 23-1989; 9-26-1995 by L.L. No. 46-1995; 8-23-2005 by L.L. No. 43-2005] A. To ensure maximum water recharge and to minimize the potential for fertilized vegetation, natural vegetation located on a tract or lot shall be preserved to the maximum extent possible, consistent with the following parameters: (1) The natural vegetation on a lot or a tract in the overlay district shall not be disturbed until such time that a building permit, site plan approval or final subdivision approval is received or until such time that the Planning Board has granted approval to a site disturbance plan as provided below: (a) The site disturbance plan shall be based on a recent survey of the subject parcel, at a minimum scale of one inch equals 40 feet, or at a scale found sufficient by the Department of Natural Resources for review purposes. Said survey/plan shall depict the existing vegetated areas and the areas proposed to be disturbed. A recent aerial photograph, at the same scale, may be substituted, provided that the property boundaries and the areas proposed to be disturbed are superimposed. (b) The request to the Planning Board to review the site disturbance plan shall be made or authorized by the landowner(s) and shall include an affidavit which advises the Planning Board what the purpose and need for the proposed disturbance is. The Planning Board may approve the plan or approve the plan with modifications or conditions. The Planning Board may also disapprove said plan if it is found that the proposed disturbance is not consistent with the intent of the provisions of this article, or if the purpose of the disturbance is for future development of the property which has not been approved by the Town. (c) If restoration or revegetation is required on any site disturbance plan, the Planning Board may require the applicant to post a performance bond in an amount equal to the estimated cost of restoring the disturbed areas to their previous state. The term of said performance bond shall not exceed a period of one year and shall not be released until written notification is received from the Planning Board that the disturbance has been satisfactorily completed in accordance with the approved plan. (2) Nonresidential lots and tracts. (a) For nonresidential lots or tracts proposed for development, the amount of disturbance of natural vegetation shall not exceed 50% of the area of the respective lot or tract. The Planning Board may restrict the remainder of the site or portions thereof so that the burden of meeting the maximum disturbance limitation is not borne by any future lots resulting from the subdivision of the tract. (b) For nonresidential tracts proposed for subdivision, the total amount of disturbance of natural vegetation shall not exceed greater than 50% of the area of said tract. In determining the amount of disturbance on a proposed lot in a subdivision, the Planning Board shall first calculate the amount of disturbance for all roads, common driveways, drainage areas, active park areas and any other improvements connected to the subdivision map and then proportionately divide the remaining area among the proposed lots. (3) For multifamily lots or tracts, including parcels for senior citizen and affordable housing projects, but excluding attached-housing planned residential developments, the amount of disturbance of natural vegetation shall not exceed 50% of the area of the respective lot or tract. The Town Board may alter or waive the provisions of this subsection where an affordable housing project otherwise would meet the provisions of the Town Code and a revegetation program which protects the aquifer is incorporated into the project design. (4) Residential lots and tracts. (a) For residential lots, the amount of disturbance of natural vegetation shall not exceed the following percentages, except on flagpole lots, where the area of the pole shall be exempt from the total lot area and the total amount of clearing permitted: Lot Size (square feet) Percentage of Site 1 to 15,000 75% 15,001 to 30,000 60% 30,001 to 60,000 50% 60,001 to 90,000 35% 90,001 to 140,000 25% 140,001 to 200,000 20% 200,001 or greater 15% (b) For the development of a residential tract with one single-family dwelling and its accessory structures, the amount of disturbance of natural vegetation shall not exceed the maximum percentage allowed as provided in Subsection A(4)(a) above for the minimum required lot area of the zoning district in which the tract lies (e.g., a tract upon which a dwelling is proposed in the CR-40 Zone would not be allowed to be disturbed in excess of 50% of 40,000 square feet). The Planning Board may modify the provisions of this subsection where the applicant has agreed to restrict the remainder of the site or portions thereof so that the burden of meeting the maximum disturbance limitation is not borne by any future lots resulting from the subdivision of the tract. (5) Notwithstanding the provisions of the aforementioned subsections, the Planning Board, when considering a planned residential development (cluster) subdivision of a tract within the overlay district, may allow a greater amount of disturbance on a lot within the proposed map, provided that no more than 25% of the natural vegetation on the tract shall be disturbed for development. In determining the amount of disturbance on a proposed lot, the Planning Board shall first calculate the amount of disturbance for all roads, common driveways, drainage areas, active park areas and any other improvements connected to the subdivision map and then proportionately divide the remaining area among the proposed lots. B. Notwithstanding the provisions of the aforementioned subsections, lots or tracts upon which authorization is received from the Planning Board for a special exception use or authorization is received from the Town Board for the establishment of a QPSUD or PDD pursuant to Articles XXII [Signs] and XXV [Residential Receiving Area District] of this chapter, respectively, may be allowed to disturb a greater amount of the natural vegetation, provided that said use is consistent with the intent and policies of the Aquifer Protection Overlay District and that a revegetation program which protects the aquifer is incorporated into the project design. C. The provisions of this section do not apply where the natural vegetation on a lot or tract was substantially disturbed as a result of previous land uses prior to the effective date (April 4, 1984) of this chapter. However, previously disturbed lands which are left to revert to natural vegetation for a period of 20 years shall be subject to these regulations. D. The Planning Board, when considering the subdivision of a tract within the overlay district, shall utilize development or building envelopes, scenic easements, reserved areas, covenants and restrictions or any other reasonable means to implement the requirements of this section. The use of the planned residential development as provided in Chapter 247 of the Town Code should be evaluated by the Planning Board to allow flexibility on the limitations for disturbance on proposed lots and to provide better management of the resultant open space areas. § 330-68. Restriction of fertilized vegetation. [Amended 11-14-1989 by L.L. No. 23-1989] To minimize the potential for groundwater contamination from fertilizers, pesticides, herbicides and other substances, fertilized vegetation shall not exceed 15% of the area of a lot within the overlay district. Fertilized vegetation on a tract shall not exceed 20,000 square feet, except if said fertilized vegetation is in accordance with a landscape plan approved by the Planning Board. Said landscape plan shall clearly indicate the proposed landscaping, as well as the anticipated amount (in pounds per square feet) of fertilizer which will be applied. Lands currently utilized or utilized within the last 20 years of the effective date of this chapter for the production of crops shall be excluded from the requirements of this provision. § 330-69. Building permit compliance. [Added 11-14-1989 by L.L. No. 23-1989 Editor's Note: This local law repealed former § 330-69, Waste disposal areas. See now § 330-69.1. ] A. Any and all applications for a building permit within the Aquifer Protection Overlay District shall include a survey which depicts the existing natural vegetation and the proposed areas to be disturbed. No application for a building permit shall be accepted unless it complies with the provisions of this section. B. The applicant for a building permit shall have the proposed building and/or structure and the areas to be disturbed staked by a licensed surveyor in accordance with the survey. In addition, plastic surveying ribbon or an equivalent shall be placed around the perimeter of the area proposed to be disturbed. C. The Building Inspector shall, at the time of the required building inspections, determine whether or not the areas to be disturbed are in compliance with the survey. The Building Inspector may request the Department of Natural Resources to make an inspection to assist in its determination. Should there be a violation, a stop-work order, as provided in Chapter 123 of the Town Code, shall be issued. It shall be the burden of the applicant to prove that the site disturbance complies with the provisions of this section by the submission of an as-built survey. Should there be no violation, the stop-work order shall be lifted. Should said as-built survey depict a violation of these provisions, a site disturbance plan, as provided in § 330-67A(1) of this chapter, shall be submitted to the Planning Board for review. The stop-work order may only be lifted once the Planning Board is satisfied that the overly disturbed areas have been properly revegetated with low maintenance, nonfertilizer species, consistent with the policies of the Town as delineated in this section. D. The Building Inspector shall not issue a certificate of occupancy or certificate of compliance for a building or structure in the overlay district until an as-built survey indicating compliance with the provisions of this section is submitted. Should said as-built survey depict a violation of these provisions, a site disturbance plan, as provided in § 330-67A(1) of this chapter, shall be submitted to the Planning Board for review. The certificate of occupancy or certificate of compliance may only be issued once the Planning Board is satisfied that the overly disturbed areas have been revegetated with low maintenance, nonfertilizer species, consistent with the policies of the Town as delineated in this section. § 330-69.1. Waste disposal areas. [Added 11-14-1989 by L.L. No. 23-1989] The location of new public or private waste disposal areas to be used for, but not limited to, the disposal of septage or waste materials shall be prohibited in the overlay district. § 330-69.2. Waivers. [Added 11-14-1989 by L.L. No. 23-1989] The provisions of this article may only be modified by the Planning Board after due consideration is given to a site disturbance plan, as provided in § 330-67A(1) of this chapter, and where the applicant has proven that there is a practical difficulty in meeting these regulations and that environmental considerations are still satisfied to the maximum extent possible. § 330-69.3. Conflicts with other requirements. [Added 11-14-1989 by L.L. No. 23-1989] In order to create consistency with the provisions of this article, the Planning Board may consider amendments to previously filed covenants or easements which are more restrictive. Amendments to previously filed covenants or easements shall be no less restrictive than the provisions of this article. § 330-69.4. Remedies and penalties for violations. [Added 3-25-2003 by L.L. No. 30-2003] A. Purpose and findings. (1) In 1993, New York State adopted § 57-0119 of the Environmental Conservation Law, entitled "Central Pine Barrens Joint Planning and Policy Commission." This Commission consists of five voting members: a member appointed by the Governor, the County Executive of Suffolk County, and the Supervisors of the Towns of Brookhaven, Riverhead and Southampton. (2) This Commission was formed to implement, manage and oversee land use within the Central Pine Barrens area on Long Island. ECL 57-0119(6)(a) gives the Commission the power to prepare, adopt and insure implementation of the Comprehensive Land Use Plan. ECL Article 57 recognizes the importance of the three local Towns to regulate the implementation of the plan within the Central Pine Barrens region. (3) The authority to establish a Comprehensive Land Use Plan is contained in ECL § 57-0121. In conformance with ECL 57 and the Comprehensive Land Use Plan, the Town Board of the Town of Southampton adopted two overlay districts for the Central Pine Barrens Region, one in 1986 (Aquifer Protection Overlay District) and one in 1995 (Central Pine Barrens Overlay District). (4) The intention of the original legislation adopted in 1995 and the resulting plan was that the local planning and zoning powers and authority to regulate land uses by local municipalities within the Central Pine Barrens area would not be affected by said legislation and plan. (5) In an effort to address unauthorized or illegal activity within the boundaries of the Central Pine Barrens Area, in particular clearing of large tracts of land without the necessary approvals, the members of the Commission have expressed an interest in enforcing Article 57 of the ECL. Although each of the zoning codes of the respective three Towns contains penalty provisions for violations of the Code, no specific provisions are included for violations of regulations within the Central Pine Barrens area. Article 57 of the ECL does not specifically provide for an enforcement or penalty provision. (6) The Towns of Brookhaven, Riverhead and Southampton desire to discourage and prevent unauthorized and illegal land clearing activities within the core area and the compatible growth area of the Long Island Central Pine Barrens region, as well as the Aquifer Protection Overlay District in the Town of Southampton. Any amendment to Article 57 of the ECL should be consistent with existing code enforcement provisions in each of the three Towns. (7) This section is necessary to raise the potential penalties under the authority of the respective Town codes for unauthorized and illegal land clearing activities, as well as provide enforcement of provisions of the respective Town codes regarding the Long Island Pine Barrens region. (8) While the fine amounts set forth herein are significant, they are not out of proportion to the nature of the violation. Violations occurring within the Central Pine Barrens area and the Aquifer Protection Overlay Area may threaten groundwater and the endangered and threatened plants and animals found within the Central Pine Barrens. Through the enactment of Article 57 of the ECL, the State Legislature has seen fit to protect this environmentally sensitive area. This section is adopted pursuant to the home rule authorization found within § 10(4)(b) of the Municipal Home Rule Law and is intended to supersede § 268 of the Town Law. B. In addition to the penalties provided for in § 330-186 of this chapter, any person or entity who shall violate any of the provisions herein shall restore the subject premises or property or shall undertake any necessary remedial action, including but not limited to the posting of a performance and maintenance bond, as required by the Town in order to bring the subject premises or property into conformance with the requirements of this chapter and the Central Pine Barrens Comprehensive Land Use Plan or any permit, covenant or condition issued pursuant thereto, in addition to the fines set forth in Subsection C below. C. Any person or entity who shall violate any of the provisions contained in Article XXIV or the Aquifer Protection Overlay District, or any permit, covenant or condition issued pursuant thereto, shall be guilty of a violation of such, which shall be punishable by a fine not to exceed $10,000 or no more than one year in jail, for violations occurring on premises or property located within the Aquifer Protection Overlay District, and an additional fine of $1,000 per day in both areas for each day that such violation continues. A violation of this section shall be classified as an unclassified misdemeanor. D. Any fines or penalties collected pursuant to § 330-69.4A, B or C of this Code shall be deposited with the Town Comptroller's office and shall be maintained in a segregated account to be used exclusively for protection, preservation, enhancement and/or restoration of the natural resources and ecosystems of the Central Pine Barrens Region. E. Where authorized by a duly adopted resolution of the Town Board, the Town Attorney shall bring and maintain a civil proceeding, in the name of the Town, in the Supreme Court, to permanently enjoin the person or persons conducting or permitting any violation of this article from further conducting or permitting said violation. § 15-0514. Prohibition of certain incompatible uses over either primary groundwater recharge areas or federally designated sole source aquifers. 1. Definitions: The following terms, whenever used or referred to in this section, shall have the following meanings: a. "Primary groundwater recharge areas" shall mean those areas of the land surface through which water of great volume and high quality generally move downward to the deeper portions of the underlying groundwater reservoir. In the counties of Nassau and Suffolk, primary groundwater recharge areas shall mean Hydrogeologic Zones I, II, III, IVand V as defined in the Long Island Comprehensive Waste Treatment Management Plan of 1978, or any amendments to such boundaries which are accepted by the commissioner. a-1. "Primary water supply aquifer areas" shall mean those areas in the counties of Nassau, Suffolk, Kings and Queens and the Schenectady aquifer (commonly known as the Great Flats Aquifer), as identified in the nineteen hundred eighty-one New York state department of health report on groundwater dependence in New York state, and defined in the United States Geologic Survey maps for such aquifers, or any amendments to such boundaries which are accepted by the commissioner. b. "Incompatible uses" shall mean any hazardous waste or substances as determined by the department, that may ultimately be discharged to groundwater, or the storage of such a substance that may contaminate the groundwater. c. "Long Island Comprehensive Waste Treatment Management Plan of 1978" shall mean the study prepared by the Long Island Regional Planning Board pursuant to section two hundred eight of the Federal Water Pollution Control Act as amended in 1972. d. "Sole source aquifer" shall mean an aquifer system that the United States environmental protection agency, pursuant to Public Law 93-523 which is known as the federal Safe Drinking Water Act of 1974, has designated as the sole or principal drinking water source for an area and which, if contaminated, would create a significant hazard to public health. e. "Hazardous wastes" shall include all materials or chemicals listed as hazardous wastes pursuant to article twenty-seven of this chapter, or all toxic pollutants as defined in subdivision nineteen of section 17-0105 of this chapter. f. "Hazardous substance" means: (1) petroleum; or (2) any substance or combination of substances designated as a hazardous substance under section 311 of the Federal Water Pollution Control Act (33USC1321) and which is not a hazardous waste under title 9 of article 27 of this chapter; or (3) any substance listed by the department which because of its quantity, concentration, or physical, chemical or infectious characteristics may; (i) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or (ii) Pose a substantial present or potential hazard to human health or the environment when improperly stored or otherwise managed. The department shall promulgate a list of hazardous substances, within one year after the effective date of this section, including petroleum for the purposes of carrying out the applicable provisions of this title. Prior to the promulgation of such list the department shall solicit information on the present practices of industry and other commercial users of hazardous substances. g. "Petroleum" means oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, crude oil, petroleum mixed with one or more other substances, gasoline, kerosene, naphtha and as further defined by the department in rules and regulations. 2. The Nassau - Suffolk Hydrogeologic Zones I, II, III, IV and V, and their attendant boundaries as specified in the Long Island Comprehensive Waste Treatment Management Plan of 1978, or any amendments to such boundaries which are accepted by the commissioner are hereby adopted as primary groundwater recharge areas for the counties of Nassau and Suffolk for the purposes of this section. 3. The department shall propose, for the purposes of this section, primary groundwater recharge areas within either other designated sole source aquifer systems, excluding the counties of Nassau and Suffolk, or within primary water supply aquifer areas based upon hydrogeological conditions and recommendations within the department's groundwater management plan, within twelve months subsequent to the date at which the sole source aquifer designation becomes effective or within twelve months of the effective date of this amended subdivision, pursuant to the following procedures: a. The department shall hold public hearings in regard to the proposed locations and boundaries of the primary groundwater recharge areas. b. Notice of each public hearing shall be by publication in a newspaper most likely to give notice to the people residing within the primary water supply aquifer. Notice of such hearing shall be printed at least once in each of three successive weeks, but the hearing shall not be conducted less than thirty days following the date of first publication of notice of such hearing. c. The department shall subsequently finalize and adopt specific locations and boundaries of such primary groundwater recharge areas within three months following the completion of such hearing. d. Additional primary groundwater recharge areas or new boundaries of existing primary recharge areas may be delineated by the department based upon new hydrogeological information subject to the procedure outlined in paragraphs a, b and c of this subdivision. 4. Copies of the adopted boundaries of the delineated areas shall be kept on file in the offices of the commissioner and the regional director of the department. 5. The department shall promulgate rules and regulations which will restrict or prohibit incompatible uses over primary water supply aquifers, giving special attention where necessary to protect primary groundwater recharge areas. 6. In undertaking its responsibilities under this section, the department shall give first attention to the protection of pristine, largely undisturbed or undeveloped areas to insure the non-degradation of the water resources of such areas. § 8-0101. Purpose. It is the purpose of this act to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state.