[HISTORY: Adopted by the Town Board of the Town of Southold 7-2-2004 by L.L. No. 16-2004. Amendments noted where applicable.]
This chapter will be known as the "Town of Southold Local Waterfront Revitalization Program (LWRP) Consistency Review Law."
This chapter 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).
The purpose of this chapter is to provide a framework for agencies of the Town of Southold to incorporate the policies and purposes contained in the Town of Southold Local Waterfront Revitalization Program (LWRP) when reviewing applications for actions or direct agency actions within the coastal area; and to assure that such actions and direct actions by the Town are consistent with the LWRP policies and purposes.
It is the intention of the Town of Southold that the preservation, enhancement and utilization of the unique coastal area of the Town take place in a coordinated and comprehensive manner to ensure a proper balance between protection of natural resources and the need to accommodate limited population growth and economic development. Accordingly, this chapter is intended to achieve such a balance, permitting the beneficial use of coastal resources while preventing loss and degradation of living coastal resources and wildlife; diminution of open space areas or public access to the waterfront; disruption of natural coastal 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.
The substantive provisions of this chapter shall only apply while there is in existence a Town of Southold Local Waterfront Revitalization Program which has been adopted in accordance with Article 42 of the Executive Law of the State of New York.
As used in this chapter, the following terms shall have the meanings indicated:
- 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:
- 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.
- Any board, agency, department, office, other body, or officer of the Town of Southold.
- 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 Southold, as shown on the coastal area map on file in the office of the Secretary of State and as delineated in the Town of Southold Local Waterfront Revitalization Program (LWRP). In Southold this area is inclusive of the entire Town.
- COASTAL ASSESSMENT FORM (CAF)
- The form used by an agency to assist in determining the consistency of an action with the Local Waterfront Revitalization Program.
- 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 agency, such as, but not limited to, a capital project, rule making, procedure making and policy-making.
- All conditions, circumstances and influences surrounding and affecting the development of living organisms or other resources in the coastal area.
- LANDSCAPED BUFFER
- A land area of a certain length and width which is planted
with indigenous, drought-tolerant vegetation similar to that found
within the immediate proximity of the parcel. Vegetation shall be
installed in sufficient densities to achieve 95% ground cover within
two years of installation. Survival of planted vegetation shall be
90% for a period of three years. Maintenance activities within the
buffer are limited to removing vegetation which is hazardous to life
and property, trimming tree limbs up to a height of 15 feet to maintain
viewsheds, replanting of vegetation and establishing a four-foot-wide
access path constructed of pervious material for access to the water
body.[Added 12-15-2009 by L.L. No. 15-2009]
- LOCAL WATERFRONT REVITALIZATION PROGRAM or LWRP
- The Local Waterfront Revitalization Program of the Town of Southold, 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 Clerk of the Town of Southold.
- MINOR ACTIONS
- Include the following actions, which are not subject to review
under this chapter:[Amended 6-6-2009 by L.L. No. 7-2006; 12-15-2009 by L.L. No. 15-2009]
- 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 kind, on the same site (inplace), including upgrading buildings to meet building or fire codes, except for structures in areas designated by the Coastal Erosion Hazard Area (CEHA) law where structures may not be replaced, rehabilitated or reconstructed without a permit and shoreline erosion control structures (including, but not limited to, groins, jetties, bulkheads, filled piers) located within Great Peconic Bay, Cutchogue Harbor, Little Peconic Bay, Hog Neck Bay, Noyack Bay, Southold Bay, Shelter Island Sound, Pipes Cove, Orient Harbor, Gardiners Bay, Long Island Sound, Fishers Island Sound and Block Island Sound (excluding all creeks);
- 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 that is not located within 100 feet of the boundary of a natural protective feature or within significant coastal fish and wildlife habitat areas;
- F. Granting of individual setback, lot line and lot area variances, except in relation to a regulated natural feature or a bulkhead or other shoreline defense structure or any activity within the CEHA;
- 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 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 de-icing substances, or other hazardous materials;
- R. Adoption of regulations, policies, procedures and local legislative decisions in connection with 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 chapter 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 chapter;
- Y. Local legislative decisions such as rezoning where the Town Board determines the action will not be approved;
- Z. Split rail fences or fences used to control nuisance wildlife that do not interfere with the public's rights of passage along the foreshore;
- AA. Removal of a structure greater than 75 feet from a wetland;
- BB. Additions to an existing dwelling constituting less than 25% of the existing structure where the addition is greater than 75 feet from a natural protective feature, except where the parcel is located in a coastal erosion hazard area;
- CC. Structures less than 250 square feet in size that are accessory to existing permitted primary structures, and which accessory structures are greater than 50 feet from a boundary of a natural protective feature and freshwater or tidal wetlands;
- DD. Construction or improvements of pervious residential driveways, parking areas or walkways greater than 50 feet from a tidal or freshwater wetland;
- EE. Upgrades to existing fuel tanks, provided that erosion control measures are implemented;
- FF. Cutting phragmites to greater than 12 inches and vegetative restoration, provided that native wetland vegetative species are not affected or disturbed in any manner;
- GG. Within all Town creeks, replacement of existing bulkhead on the applicant's property in the same location with a silt curtain deployed prior to and during construction;
- HH. Lot line changes, provided that the lot line change will not permit new development that may have undue adverse impacts on wetlands, tidal waters or natural protective features;
- II. Additions to an existing building or rebuilt residential structure which results in no net increase in ground area coverage, except where the parcel is located in a coastal erosion hazard area;
- JJ. Construction or installation of drainage improvements for the retention of storm water runoff in accordance with Chapter 236.
- NATURAL PROTECTIVE FEATURE
- A nearshore area, beach, bluff, primary dune, secondary dune
or wetland and their vegetation.[Added 12-15-2009 by L.L. No. 15-2009]
- NATURAL VEGETATED BUFFER
- A land area of a certain length and width where existing
vegetation occurs prior to the commencement of any grading or clearing
activity. Vegetation shall be maintained to achieve a minimum percentage
of ground cover of 95%. To achieve the percentage of ground cover,
indigenous, drought-tolerant vegetation shall be planted. Survival
of planted vegetation shall be 90% for a period of three years. Maintenance
activities within the buffer are limited to removing vegetation which
is hazardous to life and property, trimming tree limbs up to a height
of 15 feet to maintain viewsheds, replanting of vegetation and establishing
a four-foot-wide access path constructed of pervious material for
access to the water-body.[Added 12-15-2009 by L.L. No. 15-2009]
- NEW YORK SCENIC BYWAY (NORTH FORK TRAIL)
- All that portion of the state highway system known as State
Route 25 in the Town of Southold, Suffolk County, beginning at the
boundary between the Town of Riverhead and the Town of Southold, continuing
northeasterly to Orient Point and to the end of State Route 25, and
all that portion of the local highway system known as Sound Avenue
beginning at the boundary between the Town of Riverhead and the Town
of Southold continuing easterly to the overlap of Sound Avenue and
County Route 48 and continuing along County Route 48 generally northeasterly
to the intersection of County Route 48 and State Route 25 north of
the Village of Greenport, Suffolk County.[Added 12-15-2009 by L.L. No. 15-2009]
- NUISANCE WILDLIFE
- Wildlife that is destructive and capable of damaging property
such as buildings, crops, pets, livestock, gardens, or public areas.
Wildlife may threaten human health or safety by spreading diseases,
through direct attacks, or accidentally.[Added 12-15-2009 by L.L. No. 15-2009]
- PERVIOUS NONTURF BUFFER
- A land area of a certain height and width comprised of sand,
stone or permeable pavers arranged in such a manner to allow for maximum
percolation of stormwater runoff into the soil.[Added 12-15-2009 by L.L. No. 15-2009]
- PRIORITY WATER BODY
- A water body within the jurisdictional boundaries of the
Town of Southold listed by the New York State Department of Environmental
Conservation on the Water Body Inventory/Priority Water Bodies List,
as amended.[Added 12-15-2009 by L.L. No. 15-2009]
- SIGNIFICANT FISH AND WILDLIFE HABITAT
- Those habitats which are essential to the survival of a large
portion of a particular fish or wildlife population; support rare
or endangered species; are found at a very low frequency within a
geographic area; support fish or wildlife populations having significant
commercial or recreational value; or that would be difficult or impossible
to replace.[Added 12-15-2009 by L.L. No. 15-2009]
The Town Board shall be responsible for overall management and coordination of the LWRP. In performing this task the Town Board or designated staff person shall:
Inform the Town Board, Town Trustees and other Town agencies or boards on implementation, priorities, work assignments, timetables, and budgetary requirements of the LWRP.
Make applications for funding from state, federal, or other sources to finance projects under the LWRP.
Coordinate and oversee liaison between Town agencies and departments, including but not limited to the Town Board, Town Trustees, Planning Board, Zoning Board of Appeals, Planning staff, Police Department, Highway Superintendent and Engineering Departments of the Town, and with other nongovernmental bodies, to further implementation of the LWRP.
Prepare an annual report on progress achieved and problems encountered in implementing the LWRP, and recommend actions necessary for further implementation to the appropriate Town agency or the Town Board.
Perform other functions regarding the coastal area and direct such actions or projects as are necessary, or as the Town Board may deem appropriate, to implement the LWRP.
In order to foster a strong relationship and maintain an active liaison among the Town agencies responsible for implementation of the LWRP, the Town Board shall convene at least quarterly a Town LWRP coordinating council, including but not limited to representatives of the Town Board, Town Trustees, Planning Board, Zoning Board of Appeals, Highway Department, Police Department, Engineering Department, Planning Director and such other Town departments or individuals charged with LWRP implementation as may be designated.
Whenever a proposed action is located within the Town's coastal area, each agency shall, prior to approving, funding or undertaking the action, make a determination that it is consistent with the LWRP policy standards summarized in § 268-1 herein. No action in the coastal area shall be approved, funded or undertaken by an agency without such a determination.
The Town Board shall designate a staff person to be the "LWRP Coordinator," who 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 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 LWRP Coordinator will also coordinate with NYS DOS regarding consistency review for actions by state or federal agencies.
Whenever an agency within Southold 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. The agency shall refer a copy of the completed CAF to the LWRP Coordinator within 10 days of its submission and prior to making its determination, shall consider the recommendation of the Coordinator with reference to the consistency of the proposed action.
After referral from an agency, the LWRP Coordinator shall consider whether the proposed action is consistent with the LWRP policy standards and conditions set forth in § 268-1 herein. The LWRP Coordinator shall require the applicant to submit all completed applications, CAF's, and any other information deemed necessary to its consistency recommendation. The LWRP Coordinator shall render its written recommendation to the agency within 30 days following referral of the CAF from the agency, unless extended by mutual agreement of the Coordinator and the applicant or, in the case of a direct action, the agency. The LWRP Coordinator's recommendation shall indicate whether 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 LWRP Coordinator 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 and objectives or to greater advance them.
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 CAF per action will be prepared. If the agencies cannot agree, the LWRP Coordinator shall designate the consistency review agency.
Upon recommendation of LWRP Coordinator, the designated agency shall consider whether the proposed action is consistent with the LWRP policy standards summarized in § 268-1 herein. Prior to making its determination of consistency, the designated agency shall consider the consistency recommendation of the LWRP Coordinator. The agency shall render a written determination of consistency based on the CAF, the LWRP Coordinator recommendation and such other information as is deemed necessary to its determination. No approval or decision shall be rendered for an action in the coastal area 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 variance applications subject to this chapter. The Zoning Board of Appeals shall consider the written consistency recommendation of the LWRP Coordinator in the event and at the time it makes a decision to grant such a variance and shall impose appropriate conditions on the variance to make the activity consistent with the objectives of this chapter.
Where an EIS is being prepared or required, 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 draft EIS and is located in the coastal area until the agency has made a written finding regarding the consistency of the action with the local policy standards referred to in § 268-1 herein.
In the event the LWRP Coordinator'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.
Actions to be undertaken within the coastal area 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 Town of Southold LWRP, a copy of which is on file in the Town Clerk's office and available for inspection during normal business hours. Agencies that undertake direct actions shall also consult with § 268-5, in making their consistency determinations. The action shall be consistent with the policies to:
Policy 1: foster a pattern of development in the Town of Southold that enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of a coastal location, and minimizes adverse effects of development.
Policy 2: preserve historic resources of the Town of Southold.
Policy 3: enhance visual quality and protect scenic resources throughout the Town of Southold.
Policy 4: minimize the loss of life, structures, and natural resources from flooding and erosion.
Policy 5: protect and improve water quality and supply in the Town of Southold.
Policy 6: protect and restore the quality and function of the Town of Southold ecosystem.
Policy 7: protect and improve air quality in the Town of Southold.
Policy 8: minimize environmental degradation in the Town of Southold from solid waste and hazardous substances and wastes.
Public coast policies.
Policy 9: provide for public access to, and recreational use of, coastal waters, public lands, and public resources of the Town of Southold.
Working coast policies.
Policy 10: protect the Town of Southold's water-dependent uses and promote siting of new water-dependent uses in suitable locations.
Policy 11: promote sustainable use of living marine resources in the Town of Southold.
Policy 12: protect agricultural lands in the Town of Southold.
Policy 13: promote appropriate use and development of energy and mineral resources.
Each agency shall maintain a file for each action made the subject of a consistency determination, including any recommendations received from the LWRP Coordinator. Such files shall be made available for public inspection upon request.
The Town Building Inspectors, Town Attorney, Code Enforcement Officers and Police Department/Bay Constables shall be responsible for enforcing this chapter. No action within the Southold coastal area which is subject to review under this chapter shall proceed until a written determination has been issued from the designated 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 chapter or any conditions imposed thereunder, the Building Inspector 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 stopwork order is in effect.
A person who violates any of the provisions of, or who fails to comply with any condition imposed by, this chapter shall have committed a violation, punishable by a fine not exceeding $250 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.
The Town Attorney is authorized and directed to institute any and all actions and proceedings necessary to enforce this chapter. Any civil penalty shall be in addition to and not in lieu of any criminal prosecution and penalty.