[Added 3-25-2013 by L.L. No. 5-2013]
This article will be known as the "Town of Wheatfield Local
Waterfront Revitalization Program (LWRP) Consistency Review Law."
A.Â
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.Â
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.Â
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.Â
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.
Include all the following, except minor actions:
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:
Agency planning and policy-making activities that may affect
the environment and commit the agency to a definite course of future
decisions;
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
Any combination of the above.
Any board, agency, department, office, other body, or officer
of the Town of Wheatfield.
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).
The Building Inspector and/or Code Enforcement Officer of
the Town of Wheatfield.
The action will fully comply with the LWRP policy standards,
conditions and objectives and, whenever practicable, will advance
one or more of them.
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.
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.
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.
Include the following actions, which are not subject to review
under this article:
Maintenance or repair involving no substantial changes in an
existing structure or facility;
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;
Repaving or widening of existing paved highways not involving
the addition of new travel lanes;
Street openings and right-of-way openings for the purpose of
repair or maintenance of existing utility facilities;
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;
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;
Minor temporary uses of land having negligible or no permanent
impact on coastal resources or the environment;
Installation of traffic control devices on existing streets,
roads and highways;
Mapping of existing roads, streets, highways, natural resources,
land uses and ownership patterns;
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;
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;
Routine or continuing agency administration and management,
not including new programs or major reordering of priorities that
may affect the environment;
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;
Collective bargaining activities;
Investments by or on behalf of agencies or pension or retirement
systems, or refinancing existing debt;
Inspections and licensing activities relating to the qualifications
of individuals or businesses to engage in their business or profession;
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;
Adoption of regulations, policies, procedures and local legislative
decisions in furtherance of any action on this list;
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;
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;
Adoption of a moratorium on land development or construction;
Interpreting an existing code, rule or regulation;
Designation of local landmarks or their inclusion within historic
districts;
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;
Local legislative decisions such as rezoning where the Town
of Wheatfield determines the action will not be approved.
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.
A.Â
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.Â
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.Â
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.Â
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.
A.Â
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.Â
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.Â
Recommendation of Code Enforcement Officer.
(1)Â
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)Â
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)Â
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)Â
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.Â
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.Â
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.Â
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.Â
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.Â
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.Â
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)Â
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)Â
Preserve historic resources in the waterfront area (Policy 2);
(3)Â
Enhance visual quality and protect outstanding scenic resources
(Policy 3);
(4)Â
Minimize loss of life, structures, and natural resources from
flooding and erosion (Policy 4);
(5)Â
Protect and improve water resources (Policy 5);
(6)Â
Protect and restore ecological resources, including locally
significant fish and wildlife habitats, wetlands and rare ecological
communities (Policy 6);
(7)Â
Protect and improve air quality in the waterfront area (Policy
7);
(8)Â
Minimize environmental degradation in the local waterfront area
from solid waste and hazardous substances (Policy 8);
(9)Â
Provide for public access to, and recreational use of, canal
waters, public lands, and public resources of the waterfront area
(Policy 9);
(10)Â
Protect water-dependent uses and promote siting of new water-dependent
uses in suitable locations (Policy 10);
(11)Â
Promote the sustainable use of living aquatic resources (Policy
11);
(12)Â
Promote appropriate use and development of energy and mineral
resources.
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.
A.Â
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.Â
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.