Town of Wheatfield, NY Article XVIII Local Waterfront Revitalization Program

[Added 3-25-2013 by L.L. No. 5-2013]

§ 200-129 Title.

This article will be known as the "Town of Wheatfield Local Waterfront Revitalization Program (LWRP) Consistency Review Law."

§ 200-130 Authority and purpose.

A. This article is adopted under the authority of the Municipal Home Rule Law and the Waterfront Revitalization of Coastal Areas and Inland Waterways Act of the State of New York (Article 42 of the Executive Law).

B. The purpose of this article is to provide a framework for the agencies of the Town of Wheatfield ("Town") to incorporate the policies and purposes contained in the Town of Wheatfield Local Waterfront Revitalization Program (LWRP) when reviewing applications for actions or direct agency actions located within the coastal area. This article will also ensure that such actions, as well as direct actions undertaken by Town agencies, are consistent with the LWRP policies and purposes.

C. It is the intention of the Town of Wheatfield that the preservation, enhancement and utilization of the natural and man-made resources of the waterfront area of the Town occur in a coordinated and comprehensive manner to ensure a proper balance between protection of natural resources and the need to accommodate growth and economic development. Accordingly, this article is intended to achieve such a balance, permitting the beneficial use of waterfront resources while preventing loss and degradation of living waterfront resources and wildlife; adverse impacts to historic structures; diminution of open space areas or public access to the waterfront; disruption of natural waterfront processes; impairment of scenic, cultural or historical resources; losses due to flooding, erosion and sedimentation; impairment of water quality; or permanent adverse changes to ecological systems.

D. The substantive provisions of this article shall only apply while there is in existence a Town of Wheatfield Local Waterfront Revitalization Program that has been adopted in accordance with Article 42 of the Executive Law of the State of New York.

§ 200-131 Definitions.

ACTIONS

Include all the following, except minor actions:

A. Projects or physical activities, such as construction or any other activities that may affect natural, man-made or other resources in the coastal area or the environment by changing the use, appearance or condition of any resource or structure, that:

(1) Are directly undertaken by an agency; or

(2) Involve funding by an agency; or

(3) Require one or more new or modified approvals, permits, or review from an agency or agencies;

B. Agency planning and policy-making activities that may affect the environment and commit the agency to a definite course of future decisions;

C. Adoption of agency rules, regulations and procedures, including local laws, codes, ordinances, executive orders and resolutions that may affect coastal resources or the environment; and

D. Any combination of the above.

AGENCY

Any board, agency, department, office, other body, or officer of the Town of Wheatfield.

COASTAL AREA

That portion of New York State coastal waters and adjacent shorelands as defined in Article 42 of the Executive Law which is located within the boundaries of the Town of Wheatfield, as shown on the coastal area map on file in the office of the Secretary of State and as delineated in the Town of Wheatfield Local Waterfront Revitalization Program (LWRP).

CODE ENFORCEMENT OFFICER

The Building Inspector and/or Code Enforcement Officer of the Town of Wheatfield.

CONSISTENT

The action will fully comply with the LWRP policy standards, conditions and objectives and, whenever practicable, will advance one or more of them.

DIRECT ACTIONS

Actions planned and proposed for implementation by an applicant or agency, such as, but not limited to, a capital project, rule making, procedure making and policy making.

ENVIRONMENT

The physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health.

LOCAL WATERFRONT REVITALIZATION PROGRAM (LWRP)

The Local Waterfront Revitalization Program of the Town of Wheatfield, approved by the Secretary of State pursuant to the Waterfront Revitalization of Coastal Areas and Inland Waterways Act (Executive Law, Article 42), a copy of which is on file in the office of the Town Clerk of the Town of Wheatfield.

MINOR ACTIONS

Include the following actions, which are not subject to review under this article:

A. Maintenance or repair involving no substantial changes in an existing structure or facility;

B. Replacement, rehabilitation or reconstruction of a structure or facility, in place and in kind, on the same site, including upgrading buildings to meet building or fire codes;

C. Repaving or widening of existing paved highways not involving the addition of new travel lanes;

D. Street openings and right-of-way openings for the purpose of repair or maintenance of existing utility facilities;

E. Maintenance of existing landscaping or natural growth, except where threatened or endangered species of plants or animals are affected, or within significant coastal fish and wildlife habitat areas;

F. Granting of individual setback and lot line variances, except in relation to a regulated natural feature or a bulkhead or other shoreline erosion protection structure;

G. Minor temporary uses of land having negligible or no permanent impact on coastal resources or the environment;

H. Installation of traffic control devices on existing streets, roads and highways;

I. Mapping of existing roads, streets, highways, natural resources, land uses and ownership patterns;

J. Information collection, including basic data collection and research, water quality and pollution studies, traffic counts, engineering studies, surveys, subsurface investigations and soils studies that do not commit the agency to undertake, fund or approve any action;

K. Official acts of a ministerial nature involving no exercise of discretion, including building permits where issuance is predicated solely on the applicant's compliance or noncompliance with the relevant local building code;

L. Routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment;

M. Conducting concurrent environmental, engineering, economic, feasibility and other studies and preliminary planning and budgetary processes necessary to the formulation of a proposal for action, provided those activities do not commit the agency to commence, engage in or approve such action;

N. Collective bargaining activities;

O. Investments by or on behalf of agencies or pension or retirement systems, or refinancing existing debt;

P. Inspections and licensing activities relating to the qualifications of individuals or businesses to engage in their business or profession;

Q. Purchase or sale of furnishings, equipment or supplies, including surplus government property, other than the following: land, radioactive material, pesticides, herbicides, storage of road deicing substances, or other hazardous materials;

R. Adoption of regulations, policies, procedures and local legislative decisions in furtherance of any action on this list;

S. Engaging in review of any part of an application to determine compliance with technical requirements, provided that no such determination entitles or permits the project sponsor to commence the action unless and until all requirements of this article have been fulfilled;

T. Civil or criminal enforcement proceedings, whether administrative or judicial, including a particular course of action specifically required to be undertaken pursuant to a judgment or order, or the exercise of prosecutorial discretion;

U. Adoption of a moratorium on land development or construction;

V. Interpreting an existing code, rule or regulation;

W. Designation of local landmarks or their inclusion within historic districts;

X. Emergency actions that are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resources, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to coastal resources or the environment. Any decision to fund, approve or directly undertake other activities after the emergency has expired is fully subject to the review procedures of this article;

Y. Local legislative decisions such as rezoning where the Town of Wheatfield determines the action will not be approved.

WATERFRONT ASSESSMENT FORM (WAF)

The form, a sample of which is appended to this article,[1] used by an agency to assist in determining the consistency of an action with the Local Waterfront Revitalization Program.

[1] Editor's Note: Said form is on file in the Town offices.

§ 200-132 Management and coordination of LWRP.

A. The Town of Wheatfield Code Enforcement Officer shall be responsible for coordinating review of actions in the Town's coastal area for consistency with the LWRP, and will advise, assist and make consistency recommendations to other Town agencies in the implementation of the LWRP, its policies and projects, including physical, legislative, regulatory, administrative and other actions included in the program.

B. The Town Code Enforcement Officer shall coordinate with the New York State Department of State regarding consistency review of actions by federal agencies and with State agencies regarding consistency review of its actions.

C. The Town Code Enforcement Officer shall assist the Town Board, or its designee, in making applications for funding from state, federal, or other sources to finance projects under the LWRP.

D. The Town Code Enforcement Officer shall perform other functions regarding the coastal area and direct such actions or projects, as the Town Board may deem appropriate, to implement the LWRP.

§ 200-133 Review of actions.

A. Whenever a proposed action is located within the Town's waterfront areas, each Town agency shall, prior to approving, funding or undertaking the action, make a determination that it is consistent with the LWRP policy standards summarized in Subsection I herein. No action in the coastal area shall be approved, funded or undertaken by that agency without such a determination.

B. Whenever a Town 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 agency shall refer a copy of the completed Waterfront Assessment Form (WAF) to the Town Code Enforcement Officer within 10 days of its receipt and prior to making its determination shall consider the recommendation of the Town Code Enforcement Officer with reference to the consistency of the proposed action.

C. Recommendation of Code Enforcement Officer.

(1) After referral from an agency, the Town Code Enforcement Officer shall consider whether the proposed action is consistent with the LWRP policy standards set forth in Subsection I herein. The Town Code Enforcement Officer shall require the applicant to submit all completed applications, WAF, Environmental Assessment Form (EAF), and any other information deemed necessary to its consistency recommendation.

(2) The Town Code Enforcement Officer shall render his written recommendation to the agency within 30 days following referral of the WAF from the agency, unless extended by mutual agreement of the Town Code Enforcement Officer and the applicant or, in the case of a direct action, the agency. The Town Code Enforcement Officer's recommendation shall indicate whether the proposed action is consistent with or inconsistent with one or more of the LWRP policy standards and shall elaborate in writing the basis for its opinion. The Town Code Enforcement Officer shall, along with a consistency recommendation, make any suggestions to the agency concerning modification of the proposed action, including the imposition of conditions, to make it consistent with LWRP policy standards or to greater advance them.

(3) In the event that the Town Code Enforcement Officer's recommendation is not forthcoming within the specified time, the agency shall make its consistency decision without the benefit of the Town Code Enforcement Officer's recommendation.

(4) The Town shall maintain a file for each action made the subject of a consistency determination. Such file shall be kept in the office of the Code Enforcement Officer and made available for public inspection upon request.

D. If an action requires approval of more than one Town agency, decision making will be coordinated between the agencies to determine which agency will conduct the final consistency review, and that agency will thereafter act as designated consistency review agency for the specific action being reviewed. Only one WAF per action will be prepared. If the agencies cannot agree, the Town Code Enforcement Officer shall designate the consistency review agency.

E. Upon receipt of the Town Code Enforcement Officer's recommendation, the agency shall consider whether the proposed action is consistent with the LWRP policy standards summarized in Subsection I herein. The agency shall consider the consistency recommendation of the Town Code Enforcement Officer, the WAF and other relevant information in making its written determination of consistency. No approval or decision shall be issued for an action in the coastal area without a written determination of consistency having first been rendered by a Town agency.

F. The Zoning Board of Appeals is the designated agency for making the determination of consistency for variance applications subject to this article. The Zoning Board of Appeals shall consider the written consistency recommendation of the Town Code Enforcement Officer in the event and at the time it makes a decision to grant such a variance and may impose appropriate conditions on the variance to make the activity consistent with the objectives of this article.

G. Where an Environmental Impact Statement (EIS) is being prepared or required, the draft EIS must identify applicable LWRP policies standards in Subsection I and include a thorough discussion of the effects of the proposed action on such policy standards.

H. In the event the Town Code Enforcement Officer's recommendation is that the action is inconsistent with the LWRP, and the agency makes a contrary determination of consistency, the agency shall elaborate in writing the basis for its disagreement with the recommendation and state the manner and extent to which the action is consistent with the LWRP policy standards.

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

(1) Foster a pattern of development in the waterfront area that enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of a waterfront location, and minimizes adverse effects of development (Policy 1);

(2) Preserve historic resources in the waterfront area (Policy 2);

(3) Enhance visual quality and protect outstanding scenic resources (Policy 3);

(4) Minimize loss of life, structures, and natural resources from flooding and erosion (Policy 4);

(5) Protect and improve water resources (Policy 5);

(6) Protect and restore ecological resources, including locally significant fish and wildlife habitats, wetlands and rare ecological communities (Policy 6);

(7) Protect and improve air quality in the waterfront area (Policy 7);

(8) Minimize environmental degradation in the local waterfront area from solid waste and hazardous substances (Policy 8);

(9) Provide for public access to, and recreational use of, canal waters, public lands, and public resources of the waterfront area (Policy 9);

(10) Protect water-dependent uses and promote siting of new water-dependent uses in suitable locations (Policy 10);

(11) Promote the sustainable use of living aquatic resources (Policy 11);

(12) Promote appropriate use and development of energy and mineral resources.

§ 200-134 Enforcement.

No action within the Town of Wheatfield coastal area, which is subject to review under this article, shall proceed until a written determination has been issued from a Town agency that the action is consistent with the Town's LWRP policy standards. In the event that an activity is being performed in violation of this article or any conditions imposed thereunder, the Town Code Enforcement Officer or any other authorized official of the Town shall issue a stop-work order, and all work shall immediately cease. No further work or activity shall be undertaken on the project so long as a stop-work order is in effect. The Code Enforcement Officer and Town Attorney shall be responsible for enforcing this article.

§ 200-135 Penalties for offenses.

A. A person who violates any of the provisions of, or who fails to comply with any condition imposed by, this article shall have committed a violation punishable by a fine not exceeding $350 for a conviction of a first offense and punishable by a fine of $2,000 for a conviction of a second or subsequent offense. For the purpose of conferring jurisdiction upon courts and judicial officers, each week of continuing violation shall constitute a separate additional violation.

B. The Town Attorney is authorized and directed to institute any and all actions and proceedings necessary to enforce this article. Any civil penalty shall be in addition to and not in lieu of any criminal prosecution and penalty. The Town may also enforce this article by injunction or other civil proceeding.