Article 10 - Department of Environment and Planning - Code

Section	10.01	Organization.
	10.02	Powers and duties.
	10.03	Division of planning; deputy commissioner; functions.
	10.04	Division of sewerage management; deputy commissioner; functions.
	10.05	Division of environmental compliance; deputy commissioner; functions.
	10.06	County environmental quality code.
	10.07	Fisheries Advisory Board.

Amended by Local Law No. 6 1988.

Section 10.01 Organization.

The department of environment and planning shall be headed by a commissioner, who shall organize it under the supervision and direction of the county executive into:

1. a division of planning;
2. a division of sewerage management;
3. a division of environmental compliance.

Section 10.02 Powers and duties.

1. The commissioner of environment and planning shall have all the functions, powers and duties provided by the county charter, by this code, and by any applicable provisions of any act of the state legislature not inconsistent with the county charter or this code.
2. The commissioner of environment and planning shall appoint a deputy commissioner for planning, a deputy commissioner for sewerage management and a deputy commissioner for environmental compliance. The commissioner of environment and planning may from time to time delegate such of her or his powers, duties and function as she or he shall deem appropriate to one or more of her or his deputies and may revoke such delegations. Any act performed by a deputy pursuant to such delegation shall have the same effect in law as if performed by the commissioner of environment and planning. The commissioner of environment and planning or any authorized employee of the department may inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or for the purposes of ascertaining compliance or non-compliance with any rule or regulation or order promulgated pursuant to this article; provided, however, except in case of emergency, such entry shall be at reasonable times and with due prior notice to the owner or occupant of said property.
3. The commissioner of environment and planning may with the concurrence of the commissioner of health authorize and direct employees of the department of health to make inspections for the department of environment and planning.
4. The commissioner of environment and planning or any consultant or employee of the department when authorized by her or him may enter upon any property or premises within the county for the purpose of making any surveys, examinations, tests or investigations necessary to lay out the route of or locate facilities for any sewerage system or other project assigned to the department by the county legislature at reasonable times and with due prior notice to the owner or occupant of said property.
5. The commissioner of environment and planning may execute licensing agreements with railroads, utility companies, governmental agencies and other organizations which are necessary for the construction and operation of Erie county sewerage or drainage systems.
6. The commissioner of environment and planning may, within the appropriations provided therefor, authorize and approve change orders on sewerage projects.
7. The commissioner of environment and planning may, under the direction of the county executive and upon request of one or more municipalities within the county, assist such local governments by furnishing technical advice, information and recommendations concerning environmental and planning matters.

Section 10.03 Division of planning; deputy commissioner; functions.

The division of planning shall be headed by a deputy commissioner, who shall be a person qualified by professional education, training and at least six years’ experience in the field of regional, county or municipal planning and planning administration.

The deputy commissioner of planning in addition to other duties assigned by the commissioner:

1. shall supervise and direct the planning staff;
2. shall advise the county executive, county legislature, development coordination board, and other departments, officials and agencies of the county with respect to any matter relating to the development or redevelopment of the county on which her or his opinion is requested, or upon which she or he deems it advisable to report;
3. shall prepare and maintain a county comprehensive plan and annual planning program;
4. shall participate in the development of a capital improvements program and prepare an annual capital program report;
5. shall perform development and zoning reviews and approvals as provided for in article twelve B of the general municipal law, with the exception of the review of subdivisions pursuant to section 239-n of said general municipal law; and perform such other development reviews as may be required by or may pertain to federal, state, and regional governmental agencies and actions;
6. may make available, to assist in cooperative planning purposes, the services of the technical staff to the local planning commissions and boards of the cities, towns and villages within the county;
7. shall review, coordinate and integrate the planning and development programs of agencies of the county, all cities, towns and villages within the county, and all other governmental agencies operating within and affecting the county;
8. shall maintain basic data on the county's population, land use, housing, environmental status, human and natural resources and such other matters, and make such studies, analyses, plans and recommendations as may be necessary in the exercise of the powers and the performance of the duties set forth in this article;
9. shall prepare and administer any annual housing and community development program funded by the federal government;
10. shall have and exercise all the powers and duties of a county planning board heretofore or hereafter lawfully granted.

Section 10.04 Division of sewerage management; deputy commissioner; functions.

The division of sewerage management shall be headed by a deputy commissioner, who shall be a professional engineer licensed to practice in the state of New York and shall be a graduate of a recognized college or university with a degree in sanitary, chemical, environmental, or civil engineering and six years of satisfactory experience in the design, construction and operation of sewerage systems.

The deputy commissioner, in addition to other duties assigned by the commissioner, shall:

1. supervise and direct the sewerage management staff:
2. furnish technical advice, information and recommendations to assist in the administration of each county sewer district;
3. assemble data relating to the sewage collection, conveyance, treatment and disposal problems of the county and of its political subdivisions and the elimination or alleviation of such problems;
4. have all the powers and duties of the Erie county sewer, drainage and refuse agencies. In the event the deputy commissioner is unavailable to perform these duties, the commissioner shall designate a member of the division to act for her or him;
5. analyze and evaluate information for the establishment, development, coordination and utilization of sewerage facilities to service other municipalities in the county;
6. prepare maps, plans and cost estimates on sewerage facilities, compile economic data in support thereof and coordinate survey results in connection with a master sewerage plan;
7. prepare reports on studies and work with local municipalities in the formation of county sewer districts and in connection therewith cooperate with local, state and federal agencies on program hearings and surveys;
8. prepare or supervise the preparation of plans and specifications for construction work undertaken for any county sewer district and supervise and inspect the work;
9. supervise and direct the operation and maintenance of county sewerage facilities.

Section 10.05 Division of environmental compliance; deputy commissioner; functions.

The division of environmental compliance shall be headed by a deputy commissioner, who shall be a person qualified by professional education, training, and at least six years experience in the field of environmental engineering, environmental management or environmental planning.

The deputy commissioner, in addition to other duties assigned by the commissioner:

1. shall supervise and direct the environmental compliance staff;
2. shall investigate and take appropriate action to resolve environmental complaints;
3. shall assist other units of county government, local municipalities, businesses and citizens to achieve and maintain local, state and federal environmental standards;
4. shall systematically evaluate the quality of water and air resources of the county and conduct such other investigations and undertake such other actions as may be deemed necessary or advisable to carry out the intents and purposes of the county environmental quality code and access progress in meeting environmental goals;
5. shall conduct investigations and undertake such other actions as are necessary to carry out the intents and purposes of federal or state environmental law in connection with intergovernmental agreements for joint environmental programs:
6. shall advise the commissioner in regard to proposed orders and other enforcement measures;
7. may issue, deny, revoke or modify permits under such conditions as may be prescribed in the county environmental quality code or under state law for the prevention, abatement or control of pollution;
8. shall review proposed environmental statutes, codes, rules and regulations and other actions of other levels of government and advise the county executive and legislature as to their effect on Erie county.

Section 10.06 County environmental quality code.

a.   Adoption procedure. Before adoption of the county environmental quality code or any amendment thereto, the commissioner of environment and planning shall cause notice of a public hearing thereon to be published in the official newspapers and in newspapers of general daily circulation in the county once a week for two publications and at least twenty days shall elapse from the first publication to the date of the hearing. The notice shall contain an abstract statement of the proposed provision and give the time and place of such hearing. On or before the date of the first publication of the proposed provision, copies thereof shall be filed with the clerk of the county legislature, the county executive, the clerk of each city, town and village in Erie county and in the office of the commissioner of environment and planning and be open to inspection by the public. If subsequent to this initial public hearing, the commissioner's preliminary decision is to adopt the proposed county environmental quality code or any amendment thereto, she or he shall, within five days of said preliminary decision, submit a copy thereof to the clerk of the county legislature. The county legislature, at the second regular legislative meeting following such submission at which a quorum is present, may by resolution make a finding that the proposed code or amendment warrants further consideration. Upon such a finding, the commissioner shall hold a second public hearing in the same manner as that required for the initial public hearing. Subsequent to this second public hearing, the commissioner shall either adopt or issue an order declining to adopt the proposed code or amendment. In the event the county legislature shall make no finding that further consideration is warranted, the commissioner's preliminary decision to adopt the proposed code or amendment shall become final upon adjournment of the second regular legislative meeting, subsequent to submission of the preliminary decision, at which a quorum is present. All rules, regulations, orders and directions promulgated under this section shall be compiled and known as the Erie county environmental quality code. In the event that provisions of the sanitary code promulgated by the board of health and provisions of the environmental quality code shall be applicable to the same subject, the more restrictive provision shall control.







b.  Enforcement.

2. 1. The commissioner may prescribe and impose penalties for the violation of or failure to comply with any of her or his orders or regulations, after holding a hearing thereon. Such penalties shall not exceed ten thousand dollars ($10,000) for a single violation or failure, which if not paid as ordered by the commissioner, will be recoverable by action in the appropriate court.
      
       
   2. (a) The provisions of the county environmental quality code shall have the force and effect of law.
      
      (b) Any noncompliance or nonconformance with any provision of such code or of a rule or regulation, duly made thereunder shall constitute a violation punishable by a fine of not more than two hundred fifty dollars ($250) or by imprisonment for not more than fifteen days or both such fine and imprisonment.
      
      (c) Certified copies of the environmental quality code shall be received in evidence in all courts and proceedings.
   3. The commissioner may enforce the county environmental quality code by stipulation, agreed settlement, consent order or other conciliation agreements.
      
       
   4. The commissioner shall have all the authority conferred by state law upon local officials to enforce orders, rules and regulations pertaining to the control and enhancement of the quality, use or enjoyment of air and water resources.
3. Procedure.
   
    
   1. Notices; service of process.

(a) Notices of all public hearings shall specify the time, date and place of hearing.

(b) Service of all processes, except subpoenas, shall be made in the same manner as a summons in a civil action or by registered or certified mail with a return receipt requested, addressed to the individual served in person or in a representative capacity as hereinafter provided at her or his last known residence, office or place of business. Such service shall be made upon a municipality by serving the chief executive or counsel thereof, upon a sewer district, authority, commission or private corporation by serving an officer thereof or upon an unincorporated association or partnership or other company of persons which has a president or treasurer by serving either of such officers.

(c) Subpoenas shall be served upon the witnesses personally, together with such fees therefor as may be provided by law.

 

1. 2. Proceedings before the commissioner.

(a) Whenever it shall appear to the commissioner that there has been a violation of any of the provisions of the county environmental code, she or he shall give written notice to the alleged violator or violators setting forth anything or act done or omitted to be done or claimed to be in violation of any such provisions, and requiring that the matters complained of be corrected, or that the alleged violator appear in person or by attorney before the commissioner or her or his duly designated representative, at the time and place said notice specifies, and answer the charges complained of.

(b) At least twenty days notice of such hearing shall be given.

(c) One day before the return day of such notice, the person so notified shall file with the commissioner a statement setting forth the position of the person so notified, the answer, if any, to the charges made against her or him, the methods, practices and procedures, if any, which are being taken to prevent violations of the provisions of the county environmental quality code, and any other defenses or information pertinent to the case. Pertinent and relevant testimony of witnesses shall be received in support of or opposition to said statement.

(d) The burden of proof with respect to violations imposed by provisions of the county environmental quality code shall be upon the department.

(e) After due consideration of the written and oral statements, and testimony and arguments filed pursuant to subdivision 2(c) above or on default in appearance on said return day, the commissioner may issue and enter such final order or make such final determination as she or he deems appropriate under the circumstances, and shall notify such person or persons thereof in writing, personally, by registered mail or by certified mail, return receipt requested.

1. 3. Hearings.

(a) Public hearings shall be conducted by the commissioner, or her or his duly designated representative or representatives, prior to issuance of an order directing discontinuance of actions allegedly in contravention of provisions of the county environmental quality code.

(b) The hearings herein provided may be conducted by the commissioner, or by the duly designated hearing officer or officers at any time and place.

(c) A record, or summary thereof, of the proceedings of said hearings shall be made and filed with the department of environment and planning. If requested by any party concerned with said hearing, the full stenographic notes of the testimony presented at said hearing shall be taken and filed. The stenographer shall, upon the payment of her or his fee allowed by the law therefor, furnish a certified transcript of the whole or any part of her or his notes to any party to the action requiring the same.

(d) In any such hearing, the hearing officer or any member of the hearing panel may administer oaths, examine witnesses, and issue, in the name of the department, notices of hearings and subpoenas requiring the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in any such hearing. A designation of a person or persons by the commissioner to perform the functions herein authorized shall be in writing and filed with the department.

1. 4. The commissioner is hereby authorized to settle or compromise any action or cause of action for the recovery of a penalty under the provisions of the county environmental quality code.
      
       
   5. Hearings for persons aggrieved. The commissioner shall grant a hearing to any person not previously heard in connection with the making of a determination or order, who within twenty days after service upon her or him of a copy of a notice, order or determination of the commissioner, may file a petition with the department alleging that the said order(s) or determination(s) is or are contrary to fact and injurious to her or him, and that said order or determination caused her or him damage by the invasion of or interference with a private right or privilege, particularly appertaining to her or him. At such hearing the petitioner may appear in person or by attorney, present witnesses, submit evidence and be given full opportunity to be heard. Following such hearing, the commissioner shall make her or his determination, which, unless an appeal is taken there from, shall be final and conclusive.
      
       
   6. Summary action. Whenever the commissioner, after investigation, is of the opinion that any person is causing, engaging in or maintaining a condition or activity which in her or his opinion constitutes danger to the health or welfare of the people, and that it therefore appears to be prejudicial to the interest of the people to delay action for twenty days until an opportunity for a hearing can be provided in accordance with the provisions of section 9.07c, the commissioner may order the person, by written notice, to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than twenty days. As promptly as possible thereafter within not to exceed twenty days, the commissioner shall provide the person an opportunity to be heard and to present any proof that such condition or activity does not constitute a danger to the health of the people.
      
       
   7. Review by courts. All orders or determinations of the commissioner of the department shall be subject to review as provided in article seventy eight of the civil practice law and rules. Application for such review must be made within sixty days after service in person or by mail of a copy of the determination or decision upon the attorney of record of the applicant and of each person who has filed a notice of appearance or to the applicant in person directly if not represented by an attorney.

Section 10.07 Fisheries advisory board.

There shall be within the department a fisheries advisory board, consisting of twelve members. The county executive shall make the appointments for eight positions, the chairman of the Erie County legislature shall make the appointment for one position, the enrolled members of each of the two political parties which have the greatest number of members seated in the Erie County legislature shall by majority vote make the appointment each for one position, and the Chairperson of the Legislature's Energy & Environment Committee shall make the appointment for one member, and all such appointments shall be subject to confirmation by the Erie County Legislature. Members shall be appointed to terms of three years. Members shall be residents of the County of Erie, and shall include representatives of sports and recreational fishing, and of various fields of marine and aquatic sciences. The board shall advise the department on matters concerning protection, development, and access to fisheries, upon related issues, and upon such additional matters as may be requested by the commissioner or by the county executive. No later than the first day of December in each year, the board shall deliver to the county executive an annual report summarizing the board's activities over the preceding twelve months.