Town of Amherst, NY REVIEW OF ACTIONS AND CONSISTENCY WITH LWRP POLICIES

Whenever a proposed action is located within the Amherst WRA, the 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 Section I below. No action in the WRA shall be approved, funded, or undertaken by the Town agency without such a determination.

The Planning Department shall be responsible for coordinating review of actions within the Amherst WRA for consistency with the LWRP, and will advise, assist, and make consistency recommendations for 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.

The Planning Department will assist each Town agency or outside applicant with preliminary evaluation of actions in the waterfront area, and with preparation of a WAF. Whenever the 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 within the Amherst WRA, such application or direct action shall be referred to the Planning Department, within ten (10) days of its receipt, for preparation of a WAF, a sample of which is appended to this Local Law.[1]

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Editor's Note: Such form is on file in the Town offices.

The Planning Department shall require the agency or the applicant to submit all completed applications, Environmental Assessment Forms (EAFs), and any other information deemed necessary to its consistency recommendation. The recommendation shall indicate whether, in the opinion of the Planning Department, the proposed action is consistent with or inconsistent with one or more of the LWRP policy standards and objectives and shall elaborate in writing the basis for its opinion. The Planning Department shall, along with its consistency recommendation, make any suggestions to the agency or applicant concerning modification of the proposed action, including the imposition of conditions, to make it consistent with LWRP policy standards and objectives or to greater advance them. Such recommendation shall go to the agency or applicant within thirty (30) days of receipt of the completed information (as deemed complete by the Planning Department) submitted by the department or applicant.

If an action requires approval of more than one agency, decision making will be coordinated between agencies to determine which agency will conduct the final consistency review, and that agency will thereafter act as designated consistency review agency. Only one WAF per action will be prepared. If the agencies cannot agree, the Planning Director shall designate the consistency review agency.

Upon recommendation of the Planning Department, the agency shall consider whether the proposed action is consistent with the LWRP policies included in Section I, herein. Prior to making its determination of consistency, the agency shall consider the consistency recommendation of the Planning Department. The agency shall render a written determination of consistency based on the WAF, the Planning Department recommendation and such other information as is deemed necessary to its determination. No approval or decision shall be rendered for an action in the Amherst WRA without a determination of consistency. The designated agency will make the final determination of consistency.

The Zoning Board of Appeals is the designated agency for the determination of consistency for use variances and special use permit applications subject to this law. The Zoning Board of Appeals shall consider the written consistency recommendation of the Planning Department in the event and at the time it makes a decision to grant such a variance or special use permit and shall impose appropriate conditions to make the activity consistent with the objectives of this law.

Where an Environmental Impact Statement (EIS) is required or prepared, the draft EIS must identify applicable LWRP policies and standards and include a discussion of the effects of the proposed action on such policy standards. No agency may make a final decision on an action that has been the subject of a final EIS and is located within the Amherst WRA until the agency has made a written finding regarding the consistency of the action with the LWRP policies included in Section I herein.

In the event the Planning Department'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 explain the manner and extent to which the action is consistent with the LWRP policy standards. Where an action is found to be inconsistent with one or more LWRP policy standards, such action shall not be approved, funded, or undertaken unless modified to be consistent with the LWRP, as determined by the reviewing agency.

Actions to be undertaken within the Amherst WRA shall be evaluated for consistency in accordance with the following summary of LWRP policies, which are derived from and further explained and described in the approved Town of Amherst LWRP, a copy of which is on file in the Clerk and Planning Department offices and available for inspection during normal business hours. Agencies who undertake direct actions shall also consult with Section IV- Proposed Land and Water Uses and Projects of the LWRP, in making their consistency determination. The action shall be consistent with the following LWRP policies:

Policy 1: Restore, revitalize, and redevelop deteriorated and underutilized waterfront areas for commercial, industrial, cultural, recreational, and other compatible uses.

Policy 2: Facilitate the siting of water-dependent uses and facilities on or adjacent to inland waterways.

Policy 3: Further develop the State's major ports of Albany, Buffalo, New York, Ogdensburg, and Oswego as centers of commerce and industry, and encourage the siting, in these port areas, including those under the jurisdiction of State public authorities, of land use and development which is essential to, or in support of, the waterborne transportation of cargo and people.

Policy 4: Strengthen the economic base of smaller harbor areas by encouraging the development and enhancement of those traditional uses and activities which have provided such areas with their unique maritime identity.

Policy 5: Encourage the location of development in areas where public services and facilities essential to such development are adequate.

Policy 6: Expedite permit procedures in order to facilitate the siting of development activities at suitable locations.

Policy 7: Significant coastal fish and wildlife habitats will be protected, preserved, and where practical, restored so as to maintain their viability as habitats.

Policy 8: Protect fish and wildlife resources in the waterfront revitalization area from the introduction of hazardous wastes and other pollutants which bio-accumulate in the food chain, or which cause significant sublethal or lethal effect on those resources.

Policy 9: Expand recreational use of fish and wildlife resources in the waterfront revitalization area by increasing access to existing resources, supplementing existing stocks, and developing new resources.

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Policy 10: Further develop commercial finfish, shellfish, and crustacean resources in the inland waterway area by encouraging the construction of new, or improvement of existing onshore commercial fishing facilities, increasing marketing of the State's seafood products, maintaining adequate stocks, and expanding aquaculture facilities.

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Policy 11: Buildings and other structures will be sited in the waterfront revitalization area so as to minimize damage to property and the endangering of human lives caused by flooding and erosion.

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Policy 12: Activities or development in the waterfront revitalization area will be undertaken so as to minimize damage to natural resources and property from flooding and erosion by protecting natural protective features including beaches, dunes, barrier islands and bluffs.

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Policy 13: The construction or reconstruction of erosion protection structures shall be undertaken only if they have a reasonable probability of controlling erosion for at least thirty years as demonstrated in design and construction standards and/or assured maintenance or replacement programs.

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Policy 14: Activities and development, including the construction or reconstruction of erosion protection structures, shall be undertaken so that there will be no measurable increase in erosion or flooding at the site of such activities or development, or at other locations.

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Policy 15: Mining, excavation or dredging in inland waterways shall not significantly interfere with the natural inland waterway processes which supply beach materials to land adjacent to such waters and shall be undertaken in a manner which will not cause an increase in erosion of such land.

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Policy 16: Public funds shall only be used for erosion protective structures where necessary to protect human life, and new development which requires a location within or adjacent to an erosion hazard area to be able to function, or existing development; and only where the public benefits outweigh the long term monetary and other costs including the potential for increasing erosion and adverse effects on natural protective features.

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Policy 17: Non-structural measures to minimize damage to natural resources and property from flooding and erosion shall be used whenever possible.

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Policy 18: To safeguard the vital economic, social, and environmental interests of the State and of its citizens, proposed major actions in the Waterfront Revitalization Area must give full consideration to those interests, and to the safeguards which the State has established to protect valuable inland waterway resource areas.

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Policy 19: Protect, maintain, and increase the level and types of access to public water related recreation resources and facilities.

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Policy 20: Access to the publicly owned foreshore and to lands immediately adjacent to the foreshore or the water's edge that are publicly owned shall be provided and it shall be provided in a manner compatible with adjoining uses.

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Policy 21: Water-dependent and water-enhanced recreation will be encouraged and facilitated and will be given priority over non-water-related uses along the shorefront.

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Policy 22: Development when located adjacent to the shore will provide for water-related recreation whenever such use is compatible with reasonably anticipated demand for such activities and is compatible with the primary purpose of the development.

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Policy 23: Protect, enhance, and restore structures, districts, areas, or sites that are of significance in the history, architecture, archaeology or culture of the State, its communities, or the Nation.

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Policy 24: Prevent impairment of scenic resources of statewide significance.

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Policy 25: Protect, restore, or enhance natural and man-made resources which are not identified as being of statewide significance, but which contribute to the overall scenic quality of the waterfront revitalization area.

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Policy 26: Conserve and protect agricultural lands in the waterfront revitalization area.

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Policy 27: Decisions on the siting and construction of major energy facilities in the shorefront area will be based on public energy needs, compatibility of such facilities with the environment, and the facility's need for a shorefront location.

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Policy 28: Ice management practices shall not interfere with the production of hydroelectric power, damage significant fish and wildlife and their habitats, or increase shoreline erosion or flooding.

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Policy 29: The development of offshore uses and resources, including renewable energy resources, shall accommodate New York's long-standing ocean and Great Lakes industries, such as commercial and recreational fishing and maritime commerce, and the ecological functions of habitats important to New York.

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Policy 30: Municipal, industrial, and commercial discharge of pollutants, including but not limited to, toxic and hazardous substances, into inland waterways will conform to State and National water quality standards.

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Policy 31: State policies and management objectives of approved local Waterfront Revitalization Programs will be considered while reviewing inland waterway classifications and while modifying water quality standards; however, those waters already overburdened with contaminants will be recognized as being a development constraint.

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Policy 32: Encourage the use of alternative or innovative sanitary waste systems in small communities where the costs of conventional facilities are unreasonably high, given the size of the existing tax base of these communities.

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Policy 33: Best management practices will be used to ensure the control of stormwater runoff and combined sewer overflows draining into inland waterways.

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Policy 34: Discharge of waste materials into inland waterways from vessels subject to State jurisdiction will be limited so as to protect significant fish and wildlife habitats, recreational areas and water supply areas.

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Policy 35: Dredging and filling in inland waterways and disposal of dredged material will be undertaken in a manner that meets existing State dredging permit requirements, and protects significant fish and wildlife habitats, scenic resources, natural protective features, important agricultural lands, and wetlands.

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Policy 36: Activities related to the shipment and storage of petroleum and other hazardous materials will be conducted in a manner that will prevent or at least minimize spills into inland waterways; all practicable efforts will be undertaken to expedite the cleanup of such discharges; and restitution for damages will be required when these spills occur.

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Policy 37: Best management practices will be utilized to minimize the non-point discharge of excess nutrients, organics and eroded soils into inland waterways.

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Policy 38: The quality and quantity of surface water and groundwater supplies will be conserved and protected, particularly where such waters constitute the primary or sole source of water supply.

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Policy 39: The transport, storage, treatment and disposal of solid wastes, particularly hazardous wastes, within the waterfront revitalization area will be conducted in such a manner so as to protect groundwater and surface water supplies, significant fish and wildlife habitats, recreation areas, important agricultural land, and scenic resources.

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Policy 40: Effluent discharged from major steam electric generating and industrial facilities into inland waterways will not be unduly injurious to fish and wildlife and shall conform to state water quality standards.

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Policy 41: Land use or development in the waterfront revitalization area will not cause national or State air quality standards to be violated.

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Policy 42: Waterfront revitalization program policies will be considered if the State reclassifies land areas pursuant to the prevention of significant deterioration regulations of the Federal Clean Air Act.

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Policy 43: Land use or development in the waterfront revitalization area must not cause the generation of significant amounts of acid rain precursors: nitrates and sulfates.

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Policy 44: Preserve and protect freshwater wetlands and preserve the benefits derived from these areas.

If the agency determines that an action will be inconsistent with one or more LWRP policy standards or objectives, such action shall not be undertaken unless modified to be consistent with the LWRP policies.

The Planning Department shall maintain a file for each action made the subject of a consistency determination, including the recommendations provided by the Planning Department. Such files shall be made available for public inspection upon request.