§ 418-12. Standards for permit decisions.

A. 

In granting, denying or conditioning any permit, the Planning Board shall evaluate wetland/watercourse functions and the role of the wetland/watercourse in the hydrologic and ecological systems and shall determine the impact of the proposed activity upon health and safety, rare and endangered species, water quality and additional wetland/watercourse functions listed in § 418-1 of this chapter. In this determination, it shall consider the following factors and shall issue written findings with respect to:

(1) 

The impact of the proposed activity and existing and reasonably anticipated similar activities upon neighboring land uses and wetland/watercourse functions as set forth in § 418-1 of this chapter, including but not limited to the:

(a) 

Infilling of a wetland/watercourse or other modification of natural topographic contours.

(b) 

Disturbance or destruction of natural flora and fauna.

(c) 

Influx of sediments or other materials causing increased water turbidity and/or substrate aggradation.

(d) 

Removal or disturbance of wetland/watercourse soils.

(e) 

Reductions in wetland/watercourse water supply.

(f) 

Interference with wetland/watercourse circulation.

(g) 

Damaging reduction or increase in wetland/watercourse nutrients.

(h) 

Influx of toxic chemicals and/or heavy metals.

(i) 

Damaging thermal changes in the wetland/watercourse water supply.

(j) 

Destruction of natural aesthetic values.

(2) 

Any existing wetland/watercourse impact and the cumulative effect of reasonably anticipated future wetland/watercourse activities in the wetland/watercourse subject to the application.

(3) 

The impact of the proposed activity and reasonably anticipated similar activities upon flood flows, flood storage, storm barriers and water quality.

(4) 

The safety of the proposed activity from flooding, erosion, hurricane winds, soil limitations and other hazards and possible losses to the applicant and subsequent purchasers of the land.

(5) 

The adequacy of water supply and waste disposal for the proposed use.

(6) 

Consistency with federal, state, county and local comprehensive land use plans and regulations.

(7) 

The availability of preferable alternative locations on the subject parcel or, in the case of an activity which cannot be undertaken on the property without disturbance to a wetland/watercourse, the availability of other reasonable locations for the activity that could be obtained, used, expanded or managed at any time during the proposed activity's planning history, whether or not such locations are now under the ownership or control of the applicant.

[Amended 8-20-1991 by L.L. No. 7-1991]

B. 

The Planning Board shall deny a permit if:

(1) 

The proposed activity may threaten public health and safety, result in fraud, cause nuisances, impair public rights to the enjoyment and use of public waters, threaten a rare or endangered species, violate pollution control standards or violate other federal, state or local regulations;

(2) 

It finds that the detriment to the public, measured by the factors listed in this section, that would occur on issuance of the permit outweighs the nonmonetary public benefits associated with the activity; or

(3) 

Both the affected landowner and the local government have been notified by a duly filed notice, in writing, that the state of any agency or political subdivision of the state is in the process of acquiring any freshwater wetland or watercourse by negotiation or condemnation, with the following provisions:

(a) 

The written notice must include an indication that the acquisition process has commenced, such as that an appraisal of the property has been prepared or is in the process of being prepared.

(b) 

If the landowner receives no offer for the property within one year of the permit denial, this ban to the permit lapses. If its negotiations with the applicant are broken off, the state or an agency or political subdivision must, within six months of the end of negotiation, either issue its findings and determination to acquire the property pursuant to § 204 of the Eminent Domain Procedure Law or issue a determination to acquire the property without public hearing pursuant to § 206 of the Eminent Domain Procedure Law, or this ban to permit lapses.

C. 

Preference will be given to activities that must have a shoreline or wetland/watercourse location in order to function and that will have as little impact as possible upon the wetland/watercourse buffer. In general, permission will not be granted for dredging or ditching solely for the purpose of draining wetlands, controlling mosquitoes, lagooning, constructing factories, providing spoil and dump sites or building roadways that may be located elsewhere. The regulated activity must, to the extent feasible, be confined to the portion of a lot outside of a wetland/watercourse buffer. All reasonable measures must be taken to minimize impact upon the wetland or watercourse.

D. 

The Planning Board shall require preparation of a mitigation plan by the applicant pursuant to § 418-13 when the applicant has demonstrated that either losses or impacts to the wetland/watercourse buffer are necessary and unavoidable and have been minimized to the maximum extent practicable. For the purposes of this chapter, wetland/watercourse impacts are necessary and unavoidable only if all of the following criteria are satisfied:

(1) 

The proposed activity is compatible with the public health and welfare;

(2) 

There is no feasible on-site alternative to the proposed activity, including reduction in density, change in use, revision of road and lot layout and/or related site planning considerations that could accomplish the applicant's objectives; and

(3) 

There is no feasible alternative to the proposed activity on any other site that could be obtained, used, expanded or managed at any time during the proposed activity's planning history that is not a wetland/watercourse or wetland/watercourse buffer.

[Amended 8-20-1991 by L.L. No. 7-1991]

E. 

Waiver. If the area of a wetland/watercourse for which there has been an application for a permit is 1/10 of an acre or less, the Planning Board shall be empowered, upon such conditions as it may deem appropriate, to waive any of the provisions of §§ 418-12 and 418-13 of this chapter in issuing such permit.

[Added 8-20-1991 by L.L. No. 7-1991]