§ 81-3. Definitions.

For the purposes of this chapter, the following terms and phrases shall be given the meanings indicated herein:

AGRICULTURAL LANDS

Lands that have historically and continuously been used as farmland as established prior to April 1976 and which maintain a continuous agricultural use to present day.

ALTERATION OF VEGETATION

Shall include, but not be limited to, the removal from trees of live limbs which originate more than six feet above the existing ground elevation, topping (the cutting of the trunk of the tree before its natural terminus), girdling and cutting, pruning of indigenous emergent, herbaceous and woody vegetation in such a manner as to cause the death of the plant or to significantly reduce its natural function or benefit thereof to the ecosystem.

APPARENT HIGH WATER LINE

For the purpose of this code, the apparent high water shall be defined as the approximate average monthly high water level for a given body of water at a given location as determined by reference to hydrogeological information concerning water levels, as identified by direct measurement of the water level or wrack line, provided the date and time of the measurement are provided, or as identified by other appropriate tests.

APPARENT LOW WATER LINE

For the purpose of this code, the apparent low water shall be defined as the approximate average monthly low water level for a given body of water at a given location as determined by reference to hydrogeological information concerning water levels, as identified by direct measurement, provided the date and time of the measurement are provided, or as identified by other appropriate tests.

APPLICANT

The owner, contract vendee or authorized agent of the owner or contract vendee of the parcel of property that is the subject of an application under this chapter.

AQUACULTURE

Controlled or partially controlled raising, breeding or growing, planting of aquatic or marine plant or animal life in any marine or aquatic hatchery or through on-bottom or off-bottom cultivation, for human consumption and resource restoration, as permitted by the County of Suffolk, NY State Fish and Wildlife Law (NYS ELC Article 11) and other applicable federal, state, and local laws and regulations.

ARTIFICIAL WETLANDS

Any water body or wetland not part of a natural system with an area of 300 square feet or more and created for the sole purpose of recreation, aesthetics, biofiltration or stormwater management, including but not limited to ponds, vegetated swales, rain gardens, and the equivalent. Artificial wetlands will include the created water body or wetlands and any natural wetlands that, because of the created feature, become established within the area around the artificial wetland. Artificial wetlands remain artificial wetlands until such time that they become a sustainable ecosystem independent of anthropogenic activities or structures as determined by the Director of the Division of Environmental Protection. Artificial wetlands will not be included in the prohibition of development described within the Town Code of the Town of Brookhaven and therefore may be moved or altered by the issuance of a wetlands and waterways permit.

BLUFF

Any bank or cliff with a precipitous or steeply sloped face adjoining a beach or body of water occurring along the north shore of the Town of Brookhaven with an elevation greater than 20 feet above sea level.

BOAT

Any vessel propelled by oars, paddles, sail, or fuel-powered engine which must by law be registered with New York State or documented by the United States Coast Guard, including, but not limited to: power boats, sailboats, personal watercraft, including jet skis and wet bikes.

BUFFER ZONE

The area between a wetlands boundary and the closest permitted location to such boundary for a regulated activity that is not to be disturbed and left in its natural state except for the supplemental planting of native vegetation and those activities approved by the issuance of a wetlands and waterways permit.

BULKHEAD

A vertical structure constructed as a protective barrier between a body of water and a waterfront property.

CATEGORY A PERMIT APPROVAL

A written permit, approved by the Town Board of the Town of Brookhaven, issued in response to an application to conduct a regulated activity as described in § 81-9 or issued in response to an appeal of a denial or an objection to the conditions of a permit issued by the Director of the Division of Environmental Protection.

CATEGORY B PERMIT APPROVAL

A written permit, approved by the Director of the Division of Environmental Protection, issued in response to an application to conduct a regulated activity described in § 81-4, Subsections B and C, in a wetland or within the jurisdictional area of a wetland.

CATWALK

An elevated walkway, usually built to gain access to a commercial or residential dock, built at a fixed height above grade and which is constructed landward of the apparent high water line.

COMMERCIAL DOCK

Any fixed or floating dock or extension of such, designed, used and/or intended for use other than as a residential dock, as defined in this chapter.

COMMISSIONER

The Commissioner of Planning, Environment and Land Management.

COMPLETED PROJECT

A project will be considered complete upon the issuance of a certificate of occupancy, or the equivalent; upon initiation of the project or action and its termination, or expiration of the wetlands and waterways permit; or the use of the structure by the property owner in a manner intended by its construction; whichever comes first.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

DEVELOPED LAND

A parcel of land that contains residential and/or commercial structures that have been issued certificates of occupancy or the equivalent from the Chief Building Inspector of the Town of Brookhaven. Land that contains structures constructed without valid building permits or other approvals and/or which have not been issued a certificate of occupancy or its equivalent and which do not qualify for a certificate of existing use shall be considered to have no development.

DEVELOPMENT

The construction of a primary structure in accordance with the Town of Brookhaven zoning code.

DIRECTOR

The Director of the Division of Environmental Protection of the Town of Brookhaven or, when no Director exists, that person appointed by the Commissioner to act as the administrator of the Wetlands and Waterways Code.

DISCHARGE

The emission or release of any water, substance, or material into a wetland or waterway, whether or not such substance causes pollution.

DOCK LENGTH

The distance as measured from the apparent low water line to the seaward-most portion of the fixed or floating dock or the seaward-most mooring pile, whichever distance is greater.

DREDGING

The removal or excavation of any sand, gravel, aggregate, soil, mud, or sediment from the land lying beneath any waterway or contiguous to any waterway.

EDGE OF A WATERWAY

For waters under tidal influence, the apparent high water line will be considered the landward limit of a waterway. For waters not under tidal influence, the edge will be the maximum landward limit of the surface water as determined by either field survey and/or historical information.

FIXED DOCK

An elevated walkway which is constructed at a fixed height above grade and which extends seaward from the apparent high water line.

FLOATING DOCK

Any structure, raft or floating platform which is designed to float upon the surface of a water body and is secured in place by poles, pilings, anchors, or any other type of mooring system that provides access to the water. A floating dock shall include the float itself, any pilings or mooring system designed to keep the dock at a fixed point and the ramp, which spans the distance from a fixed structure (fixed dock or bulkhead) or shoreline to the floating dock.

FLOATING HOME

Any vessel in fact used, designed or occupied as a dwelling unit, business office or source of any occupation or for any private or social club of whatsoever nature, including but not limited to a structure constructed upon a barge primarily immobile and out of navigation which functions substantially as a land structure while the same is moored or docked within the municipal limits of the Town of Brookhaven, whether such vessel is self-propelled or not.

FRESHWATER WETLANDS

The lands and waters in the Town of Brookhaven including but not limited to those lands and waters as shown on the Freshwater Wetlands Map prepared by or for the State of New York pursuant to § 24-0301 of the New York State Freshwater Wetlands Act and filed with the Suffolk County Clerk on or after May 26, 1993, and entitled "New York State Freshwater Wetlands Maps" or any future revisions thereof, which contain a significant number of the following:

A. 

Lands and submerged lands, commonly called marshes, swamps, sloughs, bogs, flats, stream banks, riverine systems, and the like, supporting aquatic or semiaquatic vegetation of the following vegetative types:

(1) 

Wetland trees which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others: red maple (Acer rubrum), willows (Salix spp.), swamp white oak (Quercus bicolor), black gum (Nyssa sylvatica) and sweet gum (Liquidambar styraciflua), Atlantic white cedar (Chamaecyparis thyoides), black ash (Fraxinus nigra), green ash (Fraxinus pennsylvanica), river birch (Betula nigra), and yellow birch (Betula alleghanensis).

(2) 

Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others: alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), sweet pepperbush (Clethra alnifolia), swamp honeysuckle (Rhododendron viscosum), spicebush (Lindera benzoin), sheep laurel (Kalma angustifolia), highbush blueberry (Vaccinium corymbosum), crimson eyed rose mallow (Hibiscus moscheutos), winterberry (Ilex verticillata), arrow-wood (Viburnum dentatum), common elderberry (Sambucus canadensis), inkberry (Ilex glabra), wild-raisin (Viburnum opulus), serviceberry (Amelanchier spp.), red chokeberry (Aronia arbutifolia), swamp rose (Rosa palustris) and witch-hazel (Hamamelis virginiana).

(3) 

Emergent vegetation, including, among others: cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), reed (Phragmites australis), wild rice (Zizania aquatica), bur reeds (Sparganium spp.), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica), sweet flag (Acorus calamus), skunk cabbage (Symplocarpus foetidus), jewelweed (Impatiens spp.), blue flag (Iris versicolor), marsh marigold (Caltha palustris), horsetails (Equisetum spp.), swamp milkweed (Asclepias incarnata), and yellow flag (Iris pseudacorus).

(4) 

Rooted, floating leaved vegetation, including, among others: water lily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar advena).

(5) 

Free-floating vegetation, including, among others: duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.).

(6) 

Wet meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other open land vegetation, including, among others: sedges (Carex and Cyperus spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cutgrass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), purple loosestrife (Lythrum salicaria), spotted joe-pye weed (Eupatorium maculatum), beggar ticks (Bidens spp.), cinnamon fern (Osmunda cinnamomea), marsh fern (Dryopteris thelypteris), ostrich fern (Pteretis pennsylvanica), royal fern (Osmunda regalis), sensitive fern (Onoclea sensibilis), spike rushes (Eleocharis spp.), and switch grass (Panicum virgatum).

(7) 

Bog mat vegetation, including, among others: sphagnum mosses (Sphagnum spp.), pitcher plant (Sarracenia purpurea), cranberries (Vaccinium macrocarpon and V. oxycoccos), sundew (Drosera rotundifolia), and leatherleaf (Chamaedaphne calyculata).

(8) 

Submergent vegetation, including, among others: pondweeds (Potamogeton spp.), naiad family (Najas spp.), Bladderworts (Utricularia spp.), wild celery (Valisneria americana), coontail (Ceratophyllum demursum), water milfoils (Myriophyllum spp.), muskgrass (Chara), stonewort (Nitella spp.), water weeds (Elodea spp.) and water smartweed (Polygonum amphibium).

B. 

Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, and provided further that such conditions can be expected to persist indefinitely, barring human intervention.

C. 

Lands underwater and surface waters substantially enclosed by aquatic or semiaquatic vegetation as set forth herein in Subsection A above and/or dead vegetation as set forth in Subsection B above.

D. 

Those geologic formations commonly known as "perched ponds" or vernal ponds, a seasonally flooded depression void of fish.

E. 

Land forms in which the predominant type of soils are considered hydric soils.

F. 

Artificial wetlands with an area greater than or equal to 300 square feet.

G. 

The waters overlying the areas set forth in Subsections A, B, D, E, and F above.

HYDRIC SOILS

Soils that are formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part of the soil profile.

INCOMPATIBLE ACTIVITIES

Any regulated activity described in § 81-7 or a regulated activity that is not compatible with the standards of approval or with the type of wetland involved or with the preservation, protection or enhancement of the present and potential values of the waterway, wetland or adjacent area.

INNOVATIVE AND ALTERNATIVE ON-SITE WASTEWATER TREATMENT SYSTEM (IAOWTS)

An on-site wastewater treatment system that discharges into the ground no more than 19 milligrams of nitrogen per liter of effluent (19 mg/L), or the lowest possible level as approved by the Suffolk County Department of Health Services (SCDHS), on average as measured over 12 samples taken one per month for a year.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

JURISDICTIONAL AREA

That area that shall be subject to regulations under this chapter of the Town Code and shall include all wetlands and waterways of the Town of Brookhaven and the land area that extends 150 feet landward of and parallel to the wetland boundary or the edge of the waterway with the exception of an artificial wetlands, where the jurisdictional area shall not extend beyond 25 feet of the limit of the artificial wetland.

LANDS UNDERWATER

Those lands lying beneath or subject to predictable or regular immersion by fresh, brackish or saline waters.

MAINTENANCE AND REPAIR

The customary, usual and normal activity to restore the sound and good state of a structure after normal decay or degradation from normal use or exposure to the elements. This includes the routine maintenance necessary from time to time to keep a structure in a state of good repair, including, but not limited to: the incidental replacement of decking lumber for a dock, catwalk, deck or walkway; renovations which do not require a building permit, increase the habitable floor area of an existing structure, or replace structural supports that are anchored or installed firmly into the ground or provide load-bearing support for decking; painting of primary and accessory structures; lawn maintenance activities, including, but not limited to, the mowing of turf grasses, the maintenance of existing landscaping, the mulching of beds or the planting of landscape vegetation within an existing landscaped area and outside of an established buffer zone (if applicable), or the top dressing of lawn areas made up of turf grasses with topsoil, provided no more than two inches of soil are involved and no wetland vegetation is covered.

MAINTENANCE DREDGING

Any dredging action which occurs in a location where dredging has been historically performed to maintain navigational access or which occurs within 10 feet of any bulkhead.

MAJOR LAND DIVISION

The division of a parcel of land that requires the installation of a new Town roadway and/or proposes to create more than four lots.

MINOR LAND DIVISION

The division of a parcel of land that does not require the installation of a new Town roadway and proposes to create no more than four lots.

MITIGATION MEASURES

Those measures used to offset impacts associated with the erection of a structure, clearing of natural vegetation, or the excavation, filling or grading of soils within the jurisdictional area of a wetland.

NAVIGABLE WATERWAY

Any water body that maintains a minimum water depth of three feet as measured at the lowest part of the tidal cycle from a point of origin and then continuously to open water. Channels that undergo routine maintenance dredging shall be considered to be part of a navigable waterway.

NONSTRUCTURAL SHORE PROTECTION DEVICE

Any nonpermanent device, including but not limited to choir logs, jute matting, sacrificial dunes, and vegetative plantings installed to protect upland property from wave action.

PERSON

Any corporation, firm, partnership, association, trust, estate or one or more individuals and any unit of government or agency or subdivision thereof.

POLLUTION

The presence in the environment of man-induced conditions or contaminants in quantities or characteristics which are or may be injurious to human, plant, marine or freshwater life, wildlife or other animal life, or to property; or unreasonably interferes with the comfortable enjoyment of life and property.

POND

A shallow inland body of standing water that exists either permanently or seasonally.

PORT JEFFERSON HARBOR COMPLEX

The waters and lands underwater of Port Jefferson Harbor, Setauket Harbor, Little Bay, the Narrows, Conscience Bay and all tributaries to and embayments thereof.

PRACTICABLE ALTERNATIVE

An alternative which is both available to the applicant and capable of fulfilling the overall purpose of the project. "Available and capable of being done" shall mean that the alternative is feasible, in terms of reasonable costs, existing technology and best available measures (i.e., most up-to-date technology or the best designs, measures or engineering practices that have been developed or are commercially available), proposed use and project purpose. "Project purposes" shall be defined generally (e.g., construction of a single-family home).

PROJECT PROPERTY

The property that is the subject of a wetlands and waterways permit and any adjacent properties under common ownership.

RESIDENTIAL DOCK

Any fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles.

RESIDENTIAL HOUSEBOAT

A vessel not designed primarily for residential dwelling units, designed primarily for pleasure craft, recreation and for independent navigation and not considered a floating home, in accordance with the definition set forth above, and which is being used for residential purposes.

RETAINING WALL

A vertical structure constructed as a protective barrier between two land areas of different elevations.

RIPARIAN RIGHT

The right of a waterfront property owner to access the adjoining waterway by the installation of a dock or other means, provided the necessary permits are issued by the Town of Brookhaven. Access to a water body through a deeded right-of-way or easement across a waterfront property does not constitute a riparian right for a non-waterfront lot. The minimum width necessary for a property to have a riparian right, as measured along a straight line parallel to the shoreline between the property boundaries perpendicular to the shoreline, is 44 feet.

STRUCTURAL SHORE PROTECTION DEVICE

Any permanent device, including but not limited to a bulkhead, gabion, revetment, and riprap installed to protect upland property from wave action.

STRUCTURE

Anything constructed or erected which requires location in or upon the ground or attached to something having location in or upon the ground. The word "structure" shall be construed as though followed by words "or part thereof."

TIDAL WETLANDS

The lands and waters in the Town of Brookhaven (including but not limited to those lands and waters in the Town which are included in the inventory of tidal wetlands prepared by or for the State of New York and filed with the Suffolk County Clerk as of September 28, 1982, last revised November 16, 1982, and entitled "Tidal Wetlands Maps") which include a significant number of the following:

A. 

Those areas which border on or lie beneath tidal waters, such as but not limited to banks, bogs, salt marshes, swamps, meadows, flats or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters.

B. 

All banks, bogs, meadows, flats and tidal marshes subject to such tides and upon which grow or may grow some of but not limited to the following: salt meadow grass (Spartina patens), saltgrass (Distichlis spicata), black grass (Juncus gerardi), saltworts (Salsola spp.), sea lavendar (Limonium carolinianum), glassworts (Salicornia spp.), big cordgrass (Spartina cynosuroides), prairie cordgrass (Spartina pectinata), marsh elder (Iva frutescens), sea-blite (Suaeda maritima), groundsel-tree (Baccharis halimifolia), crimson-eyed rose mallow (Hibiscus palustris), seaside goldenrod (Solidago sempervirens) and the intertidal zone including salt marsh cordgrass (Spartina alterniflora).

C. 

The Common Reed (Phragmites australis) shall be considered a tidal wetlands indicator when found with other tidal wetlands indicators in hydric soils.

D. 

Those areas under tidal influence that contain hydric soils.

UNDEVELOPED LAND

A parcel of land that does not contain residential and/or commercial structures that have been issued certificates of occupancy or the equivalent from the Chief Building Inspector of the Town of Brookhaven. Land that contains structures constructed without valid building permits or other approvals and/or which have not been issued a certificate of occupancy or the equivalent and which do not qualify for a certificate of existing use shall be considered to be undeveloped.

WATERFRONT PROPERTY

A property in which the location of the apparent high water line intersects at least one property boundary that borders a waterway, thus providing the owner of such property riparian rights.

WATERWAY

Any body of water commonly known as streams, rivers, creeks, lakes, ponds, estuaries, bays, harbors, oceans, and the like. A waterway includes those areas defined as lands underwater.

WETLAND BOUNDARY

The landward limit of wetlands as specified in the definitions of "freshwater wetlands" and "tidal wetlands" above.

WETLANDS

Those areas defined in this chapter as tidal or freshwater wetlands, including all waterways.

WETLANDS AND WATERWAYS PERMIT

That form of written Town approval required to conduct a regulated activity as specified under this chapter, hereinafter referred to as a "permit."

WIDTH OF A WATERWAY

The shortest linear distance in feet as measured at the point of construction for a proposed or existing structure from the apparent low water line to the apparent low water line on the opposite shoreline.

WORK RELEASE

A written permit, approved by the Director of the Division of Environmental Protection or the designee of the Director, issued in response to an application to conduct a regulated activity described in § 81-4, Subsections B and C, in a wetland or within the jurisdictional area of a wetland and which conforms to the issuance standards described in § 81-8.

Editor's Note: See Ch. 85, Zoning.

Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017