A.
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).
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
Recommendation.
(1)
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.
(2)
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.
(3)
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.
F.
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.
G.
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:
(1)
To restore and revitalize deteriorated and underutilized waterfront
areas (Policies 1, 1A, 1B, 1C, 1D and 1E).
(2)
To retain and promote commercial and recreational water-dependent
uses (Policy 2).
(3)
To strengthen the economic base of smaller harbor areas by encouraging
traditional uses and activities (Policies 4 and 4A).
(4)
To ensure that development occurs where adequate public infrastructure
is available to reduce health and pollution hazards (Policy 5).
(5)
To streamline development permit procedures (Policy 6).
(6)
To protect significant and locally important fish and wildlife
habitats from human disruption and chemical contamination (Policies
7, 7A, 8 and 8A).
(7)
To maintain and expand commercial fishing facilities to promote
commercial and recreational fishing opportunities (Policies 9, 9A
and 10).
(8)
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).
(9)
To safeguard economic, social and environmental interests in
the coastal area when major actions are undertaken (Policies 18 and
18A).
(10)
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).
(11)
To protect and restore historic and archaeological resources
(Policies 23 and 23A).
(12)
To protect and upgrade scenic resources (Policy 25).
(13)
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).
(14)
To prevent ice management practices which could damage significant
fish and wildlife and their habitat (Policy 28).
(15)
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).
(16)
To perform dredging and dredge spoil in a manner protective
of natural resources (Policies 15 and 35).
(17)
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).
(18)
To protect air quality (Policies 41, 42 and 43).
(19)
To protect freshwater wetlands (Policy 44).
H.
Inconsistency; findings.
(1)
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:
(a)
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;
(b)
The action would be undertaken in a manner which will minimize
all adverse effects on such LWRP policy standards and conditions;
(c)
The action will advance one or more of the other LWRP policy
standards and conditions; and
(d)
The action will result in an overriding City, regional or statewide
public benefit.
(2)
Such a finding shall constitute a determination that the action
is consistent with the LWRP policy standards and conditions.
I.
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.
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.
B.
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.
