This article is adopted under the authority of the Municipal Home Rule Law and the Waterfront Revitalization and Coastal Resources Act of the State of New York (Article 42 of the Executive Law).
The purpose of this article is to provide a framework for agencies of the City of Newburgh to consider the policies and purposes contained in the Local Waterfront Revitalization Program when reviewing applications for actions or direct agency actions located in the coastal area and to assure that such actions and direct actions are consistent with the said policies and purposes.
It is the intention of the City of Newburgh that the preservation, enhancement, and utilization of the natural and man-made resources of the unique coastal area of the City take place in a coordinated and comprehensive manner to ensure a proper balance between natural resources and the need to accommodate population growth and economic development. Accordingly, this section is intended to achieve such a balance, permitting the beneficial use of coastal resources while preventing: loss of living estuarine resources and wildlife; diminution of open space areas or public accesses to the waterfront; erosion of shoreline; impairment of scenic beauty; losses due to flooding, erosion and sedimentation; or permanent adverse changes to ecological systems.
The substantive provisions of this article shall only apply while there is in existence a City Local Waterfront Revitalization Program which has been adopted in accordance with Article 42 of the Executive Law of the State of New York.
Whenever a proposed action is located in the City's waterfront area, an agency shall, prior to approving, funding, or undertaking the action, make a determination that it is consistent with the LWRP policy standards and conditions set forth in Subsection G herein. When multiple agencies are reviewing the same proposed action in the City's waterfront area, the Planning Board shall be designated to perform the coastal consistency determination. In the case that the Planning Board is not a reviewing agency, the Zoning Board of Appeals shall be designated to make a coastal consistency determination.
Whenever an 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 waterfront area, the applicant, or, in the case of a direct action, the agency, shall prepare a coastal assessment form (CAF) to assist in the consistency review of the proposed action.
If the proposed action is located in the City's waterfront area, the agency responsible for the LWRP consistency determination shall seek an advisory consistency recommendation from the Conservation Advisory Council. In such case, the agency shall forward applications promptly and include sufficient additional information, such as the CAF, as is necessary for the Conservation Advisory Council to make an advisory recommendation of coastal consistency. The agency referring the application, prior to making its determination, shall consider the recommendation of the Conservation Advisory Council with reference to the consistency of the proposed action. In the event that the Conservation Advisory Council recommendation is not forthcoming within 30 days following referral of the application, the agency responsible for the LWRP consistency determination shall make its decision without the benefit of the Conservation Advisory Council recommendation.
After referral from an agency, the Conservation Advisory Council shall consider whether the proposed action is consistent with the LWRP policy standards and conditions set forth in Subsection G herein. The Conservation Advisory Council may request an applicant submit all completed applications, CAFs and any other information deemed to be necessary to its consistency recommendations.
The Conservation Advisory 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 Conservation Advisory Council and the applicant or, in the case of direct action, the agency. The recommendation shall indicate whether, in the opinion of the Conservation Advisory Council, the proposed action is consistent with or inconsistent with one or more of the LWRP policy standards or conditions and shall elaborate, in writing, the basis for its opinion.
The Conservation Advisory Council shall, along with its consistency recommendation, make any suggestions to the agency concerning modification of the proposed action to make it consistent with LWRP policy standards and conditions or to greater advance them.
In the event that the Conservation Advisory Council recommendation is not forthcoming within the specified time, the referring agency shall make its decision without the benefit of the Conservation Advisory Council recommendation.
The agency shall make the determination of consistency based on the CAF, the Conservation Advisory Council recommendation, when applicable, and such other information as is deemed to be necessary in its determination. The agency shall issue its determination within 30 days following receipt of any additional required information required from the applicant and the Coastal Advisory Council's recommendation. The agency shall have the authority, in its finding of consistency, to impose practicable and reasonable conditions on an action to ensure that it is carried out in accordance with this article.
Actions to be undertaken within the coastal waterfront and LWRP area shall be evaluated for consistency in accordance with the following LWRP policy standards and conditions, which are derived from and further explained and described in Section III of the City of Newburgh LWRP, a copy of which is on file in the City Clerk's office and available for inspection during normal business hours. Agencies which undertake direct actions shall consult with Section IV of the LWRP in making their consistency determination. The action shall be consistent with the policy:
To restore and revitalize deteriorated and underutilized waterfront areas (Policies 1, 1A, 1B, 1C, 1D and 1E).
To retain and promote commercial and recreational water-dependent uses (Policy 2).
To strengthen the economic base of smaller harbor areas by encouraging traditional uses and activities (Policies 4 and 4A).
To ensure that development occurs where adequate public infrastructure is available to reduce health and pollution hazards (Policy 5).
To streamline development permit procedures (Policy 6).
To protect significant and locally important fish and wildlife habitats from human disruption and chemical contamination (Policies 7, 7A, 8 and 8A).
To maintain and expand commercial fishing facilities to promote commercial and recreational fishing opportunities (Policies 9, 9A and 10).
To minimize flooding and erosion hazards through nonstructural means, carefully selected long-term structural measures and appropriate siting of structures (Policies 11, 11A, 12, 13, 14, 16, 17 and 28).
To safeguard economic, social and environmental interests in the coastal area when major actions are undertaken (Policies 18 and 18A).
To maintain and improve public access to the shoreline and to water-related recreational facilities while protecting the environment (Policies 2, 19, 19A, 20, 20A, 21, 21A, 21B, 22 and 22A).
To protect and restore historic and archaeological resources (Policies 23 and 23A).
To protect and upgrade scenic resources (Policy 25).
To site and construct energy facilities in a manner in which will be compatible with the environment and contingent upon the need for a waterfront or water location (Policies 27, 29 and 40).
To prevent ice management practices which could damage significant fish and wildlife and their habitat (Policy 28).
To protect surface water and groundwaters from direct and indirect discharge of pollutants and from overuse (Policies 30, 31, 33, 34, 35, 36, 36A, 37 and 38).
To perform dredging and dredge spoil in a manner protective of natural resources (Policies 15 and 35).
To handle and dispose of solid and hazardous wastes and effluents in a manner which will not adversely affect the environment nor expand existing landfills (Policies 39 and 39A).
To protect air quality (Policies 41, 42 and 43).
To protect freshwater wetlands (Policy 44).
If the agency determines that the action would not be consistent with one or more of the LWRP policy standards and conditions, such action shall not be undertaken unless the agency makes a written finding with respect to the proposed action that:
No reasonable alternatives exist which would permit the action to be undertaken in a manner which will not substantially hinder the achievement of such LWRP policy standards and conditions;
The action would be undertaken in a manner which will minimize all adverse effects on such LWRP policy standards and conditions;
The action will advance one or more of the other LWRP policy standards and conditions; and
The action will result in an overriding City, regional or statewide public benefit.
Such a finding shall constitute a determination that the action is consistent with the LWRP policy standards and conditions.
Each agency shall maintain a file for each action made the subject of a consistency determination, including any recommendations received from the Conservation Advisory Council. Such files shall be made available for public inspection upon request.
The City Building Inspector shall be responsible for enforcing this article. No work or activity on a project in the waterfront area which is subject to review under this section shall be commenced or undertaken until the Building Inspector has been presented with a written determination from an agency that the action is consistent with the City's LWRP policy standards and conditions. In the event that an activity is not being performed in accordance with this article or any conditions imposed hereunder, the Building Inspector 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.
A person or entity who violates any of the provisions of or who fails to comply with any conditions imposed by this article shall have committed a violation, punishable by a fine of $500 for a conviction of a first offense and punishable by a fine of $1,000 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 Corporation Counsel 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.