Village of Tivoli, NY Review of Actions

Where more than one local agency is involved in an action, and one local agency is serving as lead agency, under coordinated SEQR review, the consistency determination shall be made by such lead agency.

§ 225-5 Consistency determination required.

Prior to approving, funding or undertaking an action in the coastal area, the appropriate agency shall make a determination that it is consistent with the LWRP policy standards and conditions set forth in § 225-13 herein.

§ 225-6 Coordination with SEQR process.

This chapter provides that the consistency determination process shall be coordinated with the environmental review process required by SEQR and 6 NYCRR Part 617, as more fully set forth herein. Definitions of terms under the SEQR regulations shall be applicable to this chapter.

Whenever an agency receives an application for approval or funding of an action or as early as possible in the agency's formulation of a direct action to be located in the Coastal Area, the applicant, or, in the case of a direct action, the agency, shall prepare a coastal assessment form (CAF) to assist with the consistency review. Any agency may require such further information as it deems necessary to supplement the CAF and to enable it to make the required consistency determination.

The application for a consistency determination shall not be considered complete until a negative declaration has been issued or an final environmental impact statement (FEIS) has been filed by the lead agency.

The consistency determination may be made at the time that SEQR findings are issued by the agency.

§ 225-7 Planning Board referral.

If the agency, or lead agency as the case may be, is other than the Planning Board of the Village, then the agency's consistency determination shall be made only after the application or proposal for direct action has been referred to the Planning Board for its recommendation on consistency. The consistency recommendation shall be made after the determination of significance is made.

An initial referral shall be made prior to the determination of significance. The following section describes procedures for such initial referral.

Neither referral is necessary if the Planning Board is the lead agency, in which case the Planning Board would address the consistency issues as part of its review of the project.

§ 225-8 Initial referral and findings of significance.

The initial referral to the Planning Board shall be made as soon as possible after an application has been filed or a proposal for action made and prior to any determination of significance on the action. The initial referral shall include the application or proposal, the EAF and the coastal assessment form.

The purpose of the initial referral is to obtain prompt comments from the Planning Board as to which coastal policy standards and conditions may be particularly affected by the proposed action and to obtain recommendations on whether an EIS shall be required. Upon the initial referral, the Planning Board shall examine the proposed action in light of the LWRP policy standards and conditions set forth in § 225-13 herein and report its initial recommendations to the referring agency.

(1)

Where the Planning Board concludes that a negative declaration is warranted, the Planning Board shall advise the referring agency within 30 days of the referral of its recommendation on the negative declaration, identifying which coastal policy standards or conditions might be particularly affected by the proposed action. If the Planning Board concludes that it has enough information to make its substantive recommendation on consistency, the Board may include such recommendation in the initial referral report. If the Planning Board does not have enough information to make its consistency recommendation, it may include a request for further information regarding the substantive consistency referral, which shall thereafter be made under § 225-10 and following.

(2)

Where the Planning Board determines that there is insufficient information to determine whether a positive or negative declaration should be issued, it shall report this determination to the referring agency within 30 days of the referral and shall state the reasons therefor, specifying any specific coastal policy standards or conditions at issue, together with a request for specified further information. The referring agency and/or the applicant shall supply the requested information, and the provision of this further information shall start a new referral under this section.

(3)

Where the Planning Board determines that the proposed action may have a significant effect on the environment, the Planning Board shall report its recommendation that a positive declaration be issued to the referring agency within 30 days of the referral and shall state the reasons therefor, specifying any specific coastal policy standards and conditions which may be impacted by the proposed action or which may raise consistency issues.

Effect of initial referral. The Planning Board's initial referral report should be as complete as possible, within the limits of the information provided to it. However, the failure of the Planning Board to mention a specific issue or mention a specific policy standard or condition on the initial referral shall not preclude the Planning Board from raising it upon the substantive consistency referral or during an EIS review.

§ 225-9 Determination of significance.

After receiving the Planning Board's initial referral report, the referring agency shall render its determination of significance, giving due regard to impacts on coastal resources. Where the Planning Board has failed to respond within 30 days of the referral, the referring agency may proceed to make its determination of significance without the report.

§ 225-10 Substantive referral on consistency.

Where required under the provisions of this article, the substantive referral to the Planning Board for a consistency recommendation shall take place after the determination of significance is made. The sections that follow describe the referral procedure following a negative or positive declaration.

§ 225-11 Negative declaration; substantive referral.

Where a negative declaration or conditioned negative declaration is issued, the matter shall be referred to the Planning Board for a substantive recommendation on consistency. The referral shall include any data submitted to the agency regarding the application or proposal and the full EAF and negative declaration, together with any supporting documents showing the evaluation of potential impacts on coastal resources and the LWRP policy standards and conditions set forth in § 225-13.

After such referral from an agency, the Planning Board shall consider whether the proposed action is consistent with the LWRP policy standards and conditions set forth in § 225-13 herein.

The Planning Board shall render its written recommendation to the agency within 30 days following referral from the agency, unless extended by mutual agreement of the Planning Board and the agency. The recommendation shall indicate whether, in the opinion of the Planning Board, the proposed action is consistent with or inconsistent with one or more of the LWRP policy standards or conditions and shall elaborate in writing the basis for its opinion, specifying the particular policy standards or conditions affected.

The Planning Board shall, along with its consistency recommendation, make any suggestions to the agency concerning modification of the proposed action to make it consistent with LWRP policy standards and conditions or to greater advance them.

To the extent that the Planning Board recommends that the action may be inconsistent with one or more of the policy standards or conditions, it shall also make recommendations as to whether the proposed action would qualify for an alternative consistency determination under § 225-15 herein.

In the event that the Planning Board's recommendation is not forthcoming within the time specified by the referring agency, the referring agency may make its determination of consistency without the benefit of the Planning Board's recommendation.

§ 225-12 Positive declaration; substantive referral.

Where a positive declaration is issued and a draft environmental impact statement (DEIS) has been prepared, the matter shall be referred to the Planning Board for a substantive recommendation on consistency. The Planning Board shall cooperate as requested by the referring agency and by participating in any scoping of the DEIS and making comments on the DEIS. However, the referral for a consistency determination shall not be considered complete until the FEIS has been filed with the referring agency and a copy provided to the Planning Board, together with a notice of referral. The referral shall include any data submitted to the agency regarding the application or proposal and shall include the DEIS, FEIS and any supplements and supporting documentation. If a negative declaration is issued after a DEIS, then the referral is complete upon the issuance of the negative declaration and receipt of a copy by the Planning Board, together with a notice of referral, in accordance with Subsection G herein.

[Amended 5-11-1998 by L.L. No. 1-1998]

After such referral from an agency, the Planning Board shall consider whether the proposed action is consistent with the LWRP policy standards and conditions set forth in § 225-13 herein.

The Planning Board shall render its written recommendation to the agency within 30 days following the complete referral, unless extended by mutual agreement of the Planning Board and the referring agency. The recommendation shall indicate whether, in the opinion of the Planning Board, the proposed action is consistent or inconsistent with one or more of the LWRP policy standards or conditions and shall elaborate in writing the basis for its opinion, specifying the particular policy standards or conditions affected.

The Planning Board shall, along with its consistency recommendation, make any suggestions to the agency concerning modification of the proposed action to make it consistent with the LWRP policy standards and conditions or to greater advance them.

In the event that the Planning Board's recommendation is not forthcoming within the specified time, the referring agency may make its determination of consistency without the benefit of the Planning Board's recommendation.

Where a negative declaration is issued after a DEIS is circulated, then the referral shall follow the procedures in § 225-11, except that copies of any DEIS and/or supplements shall also be included in the referral.

§ 225-13 Consistency determination standards.

Actions to be undertaken within the coastal area shall be evaluated for consistency in accordance with the following LWRP policy standards and conditions, which are derived from and further explained and described in Section III of the Village of Tivoli LWRP, a copy of which is on file in the Village Clerk's office and available for inspection during normal business hours. Agencies which undertake direct actions shall also consult with Section IV of the LWRP in making their consistency determination. The action shall be consistent with the policy to:

Revitalize deteriorated and underutilized waterfront areas (Policy No. 1).

Retain and promote recreational water-dependent uses (Policy No. 2).

Limit water-enhanced uses to existing areas of low-density residential and agricultural activity which are located adjacent to coastal waters on the bluff areas to the north and south of the river landing (Policy No. 2A).

Ensure that development occurs where adequate public infrastructure is available to reduce health and pollution hazards (Policy No. 5).

Locate commercial, light industrial and high-density residential development in the upland Village area adjacent to the General Business District (Policy No. 5A).

Streamline development permit procedures (Policy No. 6).

Protect significant and locally important fish and wildlife habitats from human disruption, chemical contamination and septic waste (Policy No.'s 7, 7A, 8 and 8A).

Develop, maintain and expand commercial fishing facilities to promote commercial and recreational fishing opportunities (Policy No.'s 9, 9A and 10).

Minimize flooding and erosion hazards through nonstructural means, carefully selected, long-term structural measures and appropriate siting of structures (Policy No.'s 11, 12, 13, 14, 15, 16, 17, 17A and 28).

Safeguard economic, social and environmental interests in the coastal area when major actions are undertaken (Policy No. 18).

Maintain and improve public access to the shoreline and to water-related recreational facilities while protecting the environment (Policy No.'s 2, 19, 20, 21, 21A, 21B and 22).

Protect and restore historic and archaeological resources (Policy No. 23).

Protect and upgrade scenic resources (Policy No.'s 24, 24A and 25).

Conserve and protect agricultural lands (Policy No. 26).

Site and construct energy facilities in a manner which will be compatible with the environment and contingent upon the need for a waterfront or water location (Policy No.'s 27, 40 and 40A).

Prevent ice management practices which could damage significant fish and wildlife and their habitats (Policy No. 28).

Protect surface and groundwaters from direct and indirect discharge of pollutants and from overuse (Policy No.'s 30, 31, 32, 33, 34, 35, 36, 37, 38 and 38A).

Perform dredging and dredge spoil disposal in a manner protective of natural resources (Policy No.'s 15 and 35).

Handle and dispose of solid and hazardous wastes and effluents in a manner which will not adversely affect the environment nor expand existing landfills (Policy No. 39).

Protect air quality (Policy No.'s 41, 42 and 43).

Protect tidal and freshwater wetlands (Policy No. 44).

§ 225-14 Referring agency's consistency determination; costs.

The agency shall make the determination of consistency based on the application and project documents, the SEQR documents, the Planning Board recommendation and such other information as is deemed to be necessary in its determination.

Power to impose conditions. The agency shall have the authority, in its finding of consistency, to impose practicable and reasonable conditions on any approval of action to ensure that it is carried out in a manner consistent with the LWRP policy standards and conditions set forth in § 225-10 herein. Such authority shall be in addition to the authority to impose conditions on substantive project approvals by virtue of the Village Law, local laws and SEQR.

Reasonable and necessary costs incurred by the agency for professional review of an application to assist the agency in making the consistency determination shall be charged to the applicant pursuant to Chapter 226 of the Tivoli Village Code.

[Added 3-19-2003 by L.L. No. 3-2003]

§ 225-15 Alternative consistency determination.

If the agency determines that the action, either as proposed or as modified by conditions, would not be consistent with one or more of the LWRP policy standards and conditions, such action shall not be undertaken unless the agency makes a written finding with respect to the proposed action that:

(1)

No reasonable alternatives exist which would permit the action to be undertaken in a manner which will not be inconsistent with such LWRP policy standards and conditions;

(2)

The action would be undertaken in a manner which will minimize all adverse effects on such LWRP policy standards and conditions;

(3)

The action will advance one or more of the other LWRP policy standards and conditions; and

(4)

The action will result in an overriding Village, regional or statewide public benefit.

Such a finding shall constitute a determination that the action is consistent with the LWRP policy standards and conditions.

§ 225-16 Records.

Each agency shall maintain a file for each action made the subject of a consistency determination, including any recommendations received from the Planning Board. Such files shall be made available for public inspection upon request.