Town of Rhinebeck, NY Waterfront Consistency Review

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 Rhinebeck to incorporate the policies and purposes contained in the Town of Rhinebeck 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 Town agencies are consistent with the LWRP policies and purposes.

It is the intention of the Town of Rhinebeck 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 when there is in existence a Town of Rhinebeck Local Waterfront Revitalization Program which has been adopted in accordance with Article 42 of the Executive Law of the State of New York.

§ 118-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ACTIONS

All of 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:

(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;

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.

AGENCY

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

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 Rhinebeck, as shown on the coastal area map on file in the office of the Secretary of State and as delineated in the Town of Rhinebeck Local Waterfront Revitalization Program (LWRP).

COASTAL ASSESSMENT FORM (CAF)

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

CONSISTENT

That 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.

ENVIRONMENT

All conditions, circumstances and influences surrounding and affecting the development of living organisms or other resources in the coastal area.

LOCAL WATERFRONT REVITALIZATION PROGRAM OR LWRP

The Local Waterfront Revitalization Program of the Town of Rhinebeck, 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 Rhinebeck.

MINOR ACTIONS

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

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

Replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, 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;

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, a bulkhead or other shoreline defense 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 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 connection with 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 chapter 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 chapter;

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

§ 118-4 Management and coordination of LWRP.

The Town of Rhinebeck Conservation Advisory Council (Council)[1] 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.

[1]

Editor's Note: The Conservation Advisory Council was replaced by the Conservation Advisory Board 6-27-2011 by L.L. No. 2-2011. See Ch. 9, Conservation Advisory Board.

The Council 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 their actions.

The Council shall assist the Town Board in making applications for funding from state, federal, or other sources to finance projects under the LWRP.

The Council 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.

§ 118-5 Review of actions.

Whenever a proposed action is located within the Town's coastal area, 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 H herein. No action in the coastal area shall be approved, funded or undertaken by that agency without such a determination.

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 CAF to the Council within 10 days of its receipt and, prior to making its determination, shall consider the recommendation of the Council with reference to the consistency of the proposed action.

Council recommendations regarding proposed actions.

(1)

After referral from an agency, the Council shall consider whether the proposed action is consistent with the LWRP policy standards set forth in Subsection H herein. The Council shall require the applicant to submit all completed applications, CAFs, EAFs, and any other information deemed necessary to its consistency recommendation.

(2)

The Council 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 Council and the applicant or, in the case of a direct action, the agency. The Council'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 Council 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 Council's recommendation is not forthcoming within the specified time, the agency shall make its consistency decision without the benefit of the Council's recommendation.

If an action requires approval of more than one Town agency, decisionmaking 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 CAF per action will be prepared. If the agencies cannot agree, the Town Board shall designate the consistency review agency.

Determination of consistency and variances.

(1)

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

(2)

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 Council 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 policy standards in Subsection H and include a thorough discussion of the effects of the proposed action on such policy standards.

In the event the Council'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 policy standards, which are derived from and further explained and described in Section III (Policies) of the Town of Rhinebeck 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 (Proposed Uses and Projects), in making their consistency determination. The action must be consistent with the policies to:

(1)

Restore, revitalize and redevelop deteriorated and underutilized waterfront areas for uses dependent on a waterfront location and compatible with the historic and scenic character of the area (Policy 1).

(2)

Encourage tourism through preservation, enhancement and/or appropriate resources of historic, scenic and recreational interest (Policy 1A);

(3)

Retain and encourage the development of water-dependent uses on or near coastal waters (Policy 2);

(4)

Ensure that development occurs where adequate public infrastructure is available (Policy 5);

(5)

Streamline development permit procedures (Policy 6);

(6)

Protect and preserve fish and wildlife habitats of local importance and those which DOS has identified as significant, from human disruption and chemical contamination (Policies 7, 7A, 7B, 7C, 7D, 7E and 8);

(7)

Maintain and expand the recreational use of existing fish and wildlife resources (Policy 9);

(8)

Maintain, promote and expand commercial fishing opportunities (Policy 10);

(9)

Minimize flooding and erosion hazards through proper siting of buildings and structures; protection of natural protective features; construction of carefully selected, long-term structural measures; and the use of appropriate nonstructural means (Policies 11, 12, 13, 14, 15 and 17);

(10)

Public funds shall be used for erosion protection structures only where necessary and in an appropriate manner (Policy 16);

(11)

Safeguard vital economic, social and environmental interests in the coastal area when major actions are undertaken (Policy 18);

(12)

Maintain and improve public access to the shoreline and to water-related recreational resources, while protecting the environment and adjacent land uses (Policies 19, 20, and 20A);

(13)

Encourage and facilitate water-dependent and water-enhanced recreational resources and facilities near coastal waters (Policies 21, 21A and 21B);

(14)

Encourage the development of water-related recreational resources and facilities, as multiple uses, in appropriate locations within the shore zone. (Policy 22);

(15)

Protect and enhance scenic and aesthetic resources (Policies 23, 23A);

(16)

Protect and enhance scenic and aesthetic resources (Policies 24A, 24B, 24C and 25);

(17)

Conserve and protect agricultural lands (Policy 26);

(18)

Site and construct energy facilities in a manner which will be compatible with the environment and contingent upon the need for a shorefront location and in such a manner as to avoid adverse environmental impacts when in operation (Policies 27 and 40);

(19)

Undertake ice-management practices to avoid adverse coastal impacts (Policy 28);

(20)

Protect surface waters and groundwaters from direct and indirect discharge of pollutants and from overuse (Policies 30, 31, 32, 33, 34, 35, 36, 37 and 38);

(21)

Ensure that dredging and dredge spoil disposal are undertaken in a manner protective of natural resources (Policies 15 and 35);

(22)

Ensure that any transportation, handling or disposal of hazardous wastes and effluent is undertaken in a manner which will not adversely affect the environment (Policy 39);

(23)

Protect air quality (Policies 41, 42, and 43); and

(24)

Preserve and protect tidal and freshwater wetlands (Policy 44).

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

§ 118-6 Enforcement.

No action within the Rhinebeck coastal area which is subject to review under this chapter 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 law 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 stop-work order is in effect. The Town Building Inspector, Town Attorney, Code Enforcement Officer and Police Department shall be responsible for enforcing this chapter.

§ 118-7 Violations; penalties for offenses.

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 $500 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.