[HISTORY: Adopted by the Board of Trustees of the Village of Nissequogue 6-27-1991 by L.L. No. 1-1991. Amendments noted where applicable.]
This chapter shall be known as the "Village of Nissequogue Coastal Consistency Review Law."
This chapter is adopted pursuant to Article IX, § 1(c) of the New York State Constitution, Article 5-G of the General Municipal Law, § 10 of the Municipal Home Rule Law and Article 42 of the Executive Law of the State of New York and expressly supersedes the time periods set forth in Village Law § 7-728.
The purpose of this chapter is to foster a cooperative relationship between the Villages of Nissequogue and Head-of-the-Harbor in order to provide for coordinated review of actions located within coastal areas of the Village of Nissequogue (the Village) so that the Village of Nissequogue can advance the policies, standards and conditions of the Village's Local Waterfront Revitalization Program (LWRP). The Villages have entered into an intermunicipal agreement to cooperatively perform the function of consistency review through the Joint Village Coastal Management Commission. This chapter will implement a coastal consistency review process for the Village so as to ensure that actions within the Village will be consistent with the policies of the LWRP and provide for coastal zone management considerations in Village planning and decisionmaking processes.
As used in this chapter, the following terms shall have the meanings indicated:
- A. Any physical activity within the LWRA, such as construction or other man-made activities, which changes or might change the use, physical composition or appearance of any natural resource or structure, which is:
- B. Any planning activities of any village board, department, office or officer which commit that board, department, office or officer to a course of action or future decision within the LWRA.
- C. Any village board, department, office or officer regulation, rule, procedure or policy-making which affects the LWRA.
- An approval or permit-granting village board, department, office or officer.
- Coastal assessment form.
- The Joint Village Coastal Management Commission of Nissequogue and Head-of-the-Harbor as defined in the LWRP and established for the Village of Nissequogue in this chapter.
- Environmental assessment form as defined in 6 NYCRR Section 617.2(m), for use in determining environmental significance under SEQRA (Article 8 of the Environmental Conservation Law).
- The Local Waterfront Revitalization Area of the Villages of Nissequogue and Head-of-the-Harbor, as identified and set forth in Section 1 of the LWRP.
- The Local Waterfront Revitalization Program prepared and undertaken jointly by the Villages of Nissequogue and Head-of-the-Harbor, as approved by the Secretary of State, pursuant to Executive Law § 915.
- The Incorporated Village of Nissequogue.
In cooperation with the Village of Head-of-the-Harbor, a Joint Village Coastal Management Commission is hereby established by the Board of Trustees of the Village of Nissequogue.
The Board of Trustees of the Village shall appoint six Village residents to the Joint Village Coastal Management Commission, who will serve with the six commissioners appointed by the Village of Head-of-the-Harbor to the Commission.
Such persons shall be Village residents deemed qualified by reason of training, experience or civic interest and sound judgment to serve on the Commission.
Such residents shall be appointed for terms of three years and shall be eligible for reappointment.
Such residents shall serve without compensation.
A majority of the whole number of the Commission shall constitute a quorum. A vote of the majority of the whole number of the members of the Commission shall be necessary for a recommendation of consistency.
All proposed actions undertaken, funded, permitted, authorized or otherwise approved by any Village board, department, office or officer for any public or private project, use or activity within the LWRA of the Village will be reviewed by the Joint Village Coastal Management Commission for consistency with the LWRP policy standards set forth in § 53-8.
The procedure for making findings of consistency of proposed actions with the LWRP policy standards set forth in § 53-8 shall be as follows:
Whenever a Village agency proposes an action, or receives an application for an authorization, permit or approval, that agency will prepare or require the applicant to prepare a CAF. A copy of the CAF, together with a copy of the application, any EAF and any other supporting materials shall be forwarded to the Commission within five days of receipt from the agency or the applicant.
The Chairperson of the Commission or the Chairperson's designated representative may also request any other information or material which may be necessary and relevant for a complete review of consistency.
Within 30 days of its receipt of the CAF and supporting information, the Commission shall make a recommendation as to whether the proposed action is consistent, consistent if conditions are met or inconsistent with the LWRP policy standards. If inconsistent, the Commission shall, if possible, list modifications that might be made to make the action consistent with the LWRP policy standards.
While the Commission is preparing its recommendation regarding the consistency of the proposed action with the LWRP policy standards, the agency shall proceed in its review of the proposed action as provided for in this chapter and other applicable local laws.
The Commission shall forward its written recommendation of consistency to the agency. The agency may not take action on the application, permit or action until it has received and considered the consistency recommendation of the Commission in its decision. If, however, the Commission fails to send its written recommendation to the agency within 30 days of its receipt of the CAF and supporting information, the agency may proceed with the action.
If the agency and the Commission concur in the consistency of a proposed action, the agency may proceed with its decision-making on the action. In the event that the agency, after reviewing the written recommendation of the Commission, finds that it disagrees with the consistency recommendation of the Commission, the agency shall within 15 days prepare a written finding detailing its position and transmit it to the Commission. The Commission and the agency shall meet to resolve their differences within 15 days of the Commission's receipt of the agency's finding.
If the Commission and the agency cannot reach a mutually agreeable determination of consistency, the matter will be referred to the Village Board of Trustees for a finding of consistency. The agency shall take no action until the Board of Trustees has made a determination and finding of consistency with the LWRP policy standards.
Section 53-7G shall not apply to the Zoning Board of Appeals. Instead, where the Zoning Board of Appeals is the agency, the Zoning Board of Appeals shall consider the written consistency recommendation of the Commission when reviewing and considering an application for a variance.
When the Village Board of Trustees is itself the agency, the Village Board of Trustees may proceed to make findings of consistency subject to § 53-7J.
Overruling by Board of Trustees.
The Village Board of Trustees may only overrule the Commission's consistency recommendation and allow the action to proceed if the Village Board of Trustees makes a written finding that:
The action will be undertaken in a manner which will minimize all adverse effects on the LWRP policy standards;
The action cannot reasonably be undertaken by any other action which would be consistent with the LWRP policy standards;
The action will advance one or more of the other LWRP policy standards; and
The action will result in an overriding community-wide, regional or statewide public benefit.
Such a finding shall constitute a determination that the action is consistent with the LWRP policy standards.
The agency shall have the authority, following a finding of consistency, to impose practical and reasonable conditions on the action to ensure that it is carried out in accordance with this chapter. The agency shall maintain a file for each action made the subject of a consistency determination, which shall be available for public inspection upon request.
If the proposed action is deemed to be inconsistent with one or more of the policy standards of the LWRP, the proposer of the action shall be notified, in writing, of the points of inconsistency and shall be invited to submit modifications of the proposed action and to meet with the agency with the purpose of finding means of eliminating the inconsistencies. If the proposer does not respond, in writing, within a period of 60 days, the proposal for the action shall be deemed to have been abandoned. Unless and until an agreement is reached which eliminates the inconsistencies in a proposed action, the finding of inconsistency shall continue in force, and no approval, permit or funding of the proposed action shall be given.
Fees for making findings as required by this chapter may be set by the Board of Trustees separate from and in addition to other permit, application or reviewing fees.
The standard for making a finding of consistency shall be that there is no conflict between the proposed action and the LWRP policy standards.
The proposed action shall be consistent with the following LWRP policy standards set forth in Section III of the LWRP, a copy of which is on file in the Village Clerk's office and available for inspection during normal business hours. In the case of direct actions by a Village agency, the agency shall refer to Section IV of the LWRP in making a consistency determination. The action shall be consistent with the policies to:
Facilitate the siting of water-dependent uses in a manner compatible with the conservation and preservation of Stony Brook Harbor as an unspoiled embayment and habitat area and the Nissequogue River as an important estuarine system and recreational river. (Policies 2 and 2B)
Encourage the location of development in areas where public services or facilities are adequate, except where such development has special functional requirements or other characteristics which necessitate its location in other areas; limit development to areas where the topography, geology and other environmental conditions are suitable for and are able to accommodate development without interference with or damage to groundwater recharge needs, flood control, wetlands, habitats, the preservation of Stony Brook Harbor and the Nissequogue River or other environmental factors. (Policy 5)
Expedite permit procedures in order to facilitate the siting of development activities at suitable locations. (Policy 6)
Protect, preserve and restore the coastal fish and wildlife habitats of Stony Brook Harbor, the Nissequogue River, Smithtown Bay and the Nissequogue Inlet Beach, and reclaim habitat losses by creating new habitat at a ratio of two to one (2:1). (Policies 7, 7A, 7B, 7C and 7D)
Protect fish and wildlife resources in the coastal area from the introduction of hazardous wastes and other pollutants. (Policy 8)
Expand recreational use of fish and wildlife resources in a manner which ensures the protection of renewable fish and wildlife resources and considers other activities dependent on them. (Policies 9 and 9A)
Minimize damage to property caused by flooding and erosion hazards and prohibit residential construction in Coastal High Hazard Areas. (Policies 11 and 11A)
Minimize damage to natural resources and property by protecting natural protective features. (Policy 12)
Undertake construction or reconstruction of erosion protection structures only if they have a reasonable probability of controlling erosion for at least 30 years and are demonstrated to be necessary. (Policies 13 and 13A)
Undertake activities and development in such a manner that there will be no measurable increase in erosion or flooding. (Policy 14)
Prohibit mining and excavation in the coastal waters of the Village; prohibit dredging in such waters which significantly interferes with the natural processes which supply beach materials to land adjacent to such waters. (Policies 15 and 15A)
Employ public funds for erosion protective structures only where necessary to protect human life and only where the public benefits outweigh the long-term costs, including the potential for increasing erosion and adverse effects on natural protective features. (Policy 16)
Wherever possible, use nonstructural measures to minimize damage to natural resources and property from flooding and erosion. (Policy 17)
Safeguard vital economic, social and environmental interests of the state and its citizens; proposed major actions must give full consideration to those interests and to the safeguards the state has established to protect valuable coastal resource areas. (Policy 18)
Protect, maintain and increase access to public water-related recreation in accordance with reasonably anticipated needs and the protection of natural and historic resources; encourage and facilitate access for passive recreation in a manner which minimizes disturbance of habitats. (Policies 19 and 19A)
Provide public access to the publicly owned foreshore and lands immediately adjacent to the foreshore or the water's edge that are publicly owned in a manner compatible with adjoining uses and retain such lands in public ownership. (Policy 20)
Encourage and facilitate water-dependent and water-enhanced recreation and give priority to such uses over nonwater dependent uses along the coast, consistent with the preservation and enhancement of other coastal resources. (Policy 21)
Limit development of new recreation areas to passive water-related recreation as a multiple use for development located adjacent to the shore. (Policy 22)
Protect, enhance and restore structures, districts, areas or sites that are of significance in the history, architecture, archaeology or culture of the state, the Village or the nation. (Policy 23)
Protect, restore or enhance natural and man-made scenic resources of Stony Brook Harbor, the Nissequogue River, the Smithtown Bay bluffs and Village roads which contribute to the overall scenic quality of the coastal area. (Policy 25)
Conserve and protect agricultural lands. (Policy 26)
Site and construct energy facilities in a manner which will be compatible with the environment and contingent upon the need for a waterfront location. (Policies 27, 29 and 40)
Protect surface and groundwaters from direct and indirect discharge of pollutants and from overuse. (Policies 30, 31, 32, 33, 34, 35, 36, 37 and 38)
Maintain and retain the SA water quality classification of Stony Brook Harbor and the uses assigned to such classification. (Policy 31)
Utilize management practices and nonstructural approaches to ensure the control to runoff to coastal waters. (Policy 33)
Limit the discharge of waste materials into coastal waters from vessels. (Policy 34)
Undertake dredging and dredge spoil disposal in a manner which exceeds state dredging permit requirements, protects significant fish and wildlife habitats, scenic resources, natural protective features and important agricultural lands and wetlands; base such activities upon detailed hydraulic and environmental analysis; and undertake spoil disposal in a manner which does not introduce or reintroduce dredged material into Stony Brook Harbor, the Nissequogue River or Smithtown Bay. (Policies 35, 35A and 35B)
Prohibit the manufacture, storage or shipment of petroleum and hazardous wastes in the Village to prevent or minimize spills into coastal waters. (Policy 36)
Utilize best management practices to minimize the nonpoint discharge of excess nutrients, organics and eroded soils into coastal waters. (Policy 37)
Conserve and protect surface water and groundwater supplies by retaining large minimum lot sizes; prohibit septic systems within 150 feet of a water body or where seasonal high-water tables are less than three feet deep. (Policy 38)
Prohibit the handling, storage, treatment and disposal of solid and hazardous wastes within the Village coastal area. (Policy 39)
Preserve and protect tidal and freshwater wetlands and the benefits derived from them. (Policies 44, 44A, 44B, 44C and 44D)
Protect air quality. (Policies 41, 42 and 43).
The provisions of this chapter are severable. If any provision of this chapter is found to be invalid, such finding shall not affect the validity of this chapter as a whole or any part or provision hereof other than the provision so found to be invalid.
This chapter shall take effect immediately after the following have both occurred:
The filing of this chapter in the office of the Secretary of State in accordance with § 27 of the Municipal Home Rule Law; and
Approval of the Joint Local Waterfront Revitalization Program of the Villages of Nissequogue and Head-of-the-Harbor by the Secretary of State in accordance with Article 42 of the Executive Law of the State of New York.