[HISTORY: Adopted by the Town Board of the Town of Bethlehem 3-24-2021 by L.L. No. 1-2021. Amendments noted where applicable.]
This law may be known as the "Town of Bethlehem Local Waterfront
Revitalization Program (LWRP) Consistency Review Law."
A.
This local law 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).
B.
The purpose of this law is to provide a framework for the agencies
of the Town of Bethlehem to incorporate the policies and purposes
contained in the Town of Bethlehem Local Waterfront Revitalization
Program (LWRP) when reviewing applications for actions or direct agency
actions located within the waterfront revitalization area; and to
assure that such actions and direct actions undertaken by Town agencies
are consistent with the LWRP policies and purposes.
C.
It is the intention of the Town of Bethlehem that the preservation,
enhancement, and utilization of the unique waterfront revitalization
area of the Town occur in a coordinated and comprehensive manner to
ensure a proper balance between protection of natural resources and
the need to accommodate growth. Accordingly, this law is intended
to achieve such a balance, permitting the beneficial use of waterfront
resources while preventing: degradation or loss of living waterfront
resources and wildlife; diminution of open space areas or public access
to the waterfront; disruption of natural waterfront processes; impairment
of scenic or historical resources; losses due to flooding, erosion,
and sedimentation; impairment of water quality; or permanent adverse
changes to ecological systems.
D.
The substantive provisions of this local law shall only apply while
there is in existence a Town of Bethlehem Local Waterfront Revitalization
Program that 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:
Projects or physical activities, such as construction or any
other activities that may affect natural, man-made, or other resources
in the waterfront revitalization area, or the environment, by changing
the use, appearance, or condition of any resource or structure, that:
Agency planning and policymaking 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 waterfront resources or the environment; and
Any combination of the above.
Any board, agency, department, office, other body, or officer
of the Town of Bethlehem.
The Building Inspector and/or Zoning Enforcement Officer
of the Town of Bethlehem who issues building permits and stop-work
orders.
Means that the action will fully comply with the LWRP policy
standards, conditions and objectives and, whenever practicable, will
advance one or more of them.
Actions planned and proposed for implementation by an agency,
such as, but not limited to, a capital project, rulemaking, procedure
making and policy making.
All conditions, circumstances, and influences surrounding
and affecting the development of living organisms or other resources
in the waterfront revitalization area.
The form used by an agency to assist it in determining the
environmental significance or nonsignificance of an action, pursuant
to Article 8 of the Environmental Conservation Law (SEQR).
A written draft of the final document prepared to provide
a means for agencies, project sponsors and the public to systematically
consider significant adverse environmental impacts, alternatives and
mitigation to an action, pursuant to Article 8 of the Environmental
Conservation Law (SEQR).
The Town of Bethlehem Local Waterfront Revitalization Program
approved by the Secretary of State pursuant to the Waterfront Revitalization
of Coastal Areas and Inland Waterways Act (Article 42 of the Executive
Law), a copy of which is on file in the office of the Clerk of the
Town of Bethlehem.
Includes the following actions, which are not subject to
review under this law:
Maintenance or repair involving no substantial changes in an
existing structure or facility or to existing infrastructure;
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 local law; specifically, Town Code Chapter 69, Flood Damage Prevention, § 69-12, Development permit, where structures may not be replaced, rehabilitated or reconstructed without a permit;
Repaving 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;
Granting of individual setback and lot line variances, except
in relation to a regulated natural feature (such as a state-regulated
wetland);
Minor temporary uses of land having negligible or no permanent
impact on waterfront 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 Type I
or unlisted action;
Official acts of a ministerial nature involving no exercise
of discretion, including building permits and historic preservation
permits where issuance is predicated solely on the applicant's compliance
or noncompliance with the relevant local building or preservation
code(s);
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, 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 waterfront
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.
The form, a sample of which is appended to this local law,
used by an agency or other entity to assist in determining the consistency
of an action with the Town of Bethlehem Local Waterfront Revitalization
Program.
The person responsible for overall management and coordination
of the implementation of the LWRP as designated by the Town Board
and as created pursuant to this law.
That portion of New York State coastal waters and adjacent
upland as defined in Article 42 of the Executive Law which is located
within the boundaries of the Town of Bethlehem, as shown on the coastal
area map on file in the office of the Secretary of State and as described
and mapped in the Town of Bethlehem Local Waterfront Revitalization
Program (LWRP).
A.
A Waterfront Coordinator is created and shall be the Director of
the Department of Economic Development and Planning. The Waterfront
Coordinator shall advise the Town Board and other Town agencies, boards
and departments on LWRP implementation and on policy, project and
budget priorities, as well as on the need for preparing an amendment
to the LWRP. The Waterfront Coordinator may also perform other functions
regarding the waterfront revitalization area as the Town Board may
assign to it from time to time.
B.
The Waterfront Coordinator shall be responsible for overall management
and coordination of the LWRP. In performing this task, the Waterfront
Coordinator shall:
(1)
Inform the Town Board on implementation, priorities, work assignments,
timetables, and budgetary requirements of the LWRP.
(2)
Make applications for funding from state, federal, or other sources
to finance projects under the LWRP.
(3)
Coordinate and oversee liaison between Town agencies and departments,
including the Planning Board, Zoning Board of Appeals, Planning staff,
Police Department, Highway Superintendent, Department of Public Works,
Parks and Recreation Department, Building Department and Engineering
Department to further implement the LWRP.
(4)
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 Board.
(5)
Provide adequate and timely feedback to the New York State Department
of State and other state agencies on the consistency of state and
federal agencies' actions proposed within the Bethlehem WRA. If no
conflicts are identified between the proposed action and the applicable
policies and purposes of the approved Bethlehem LWRP, written notification
will be provided to the state agency. If conflicts are identified,
then the specific policies and purposes of the LWRP with which the
proposed action conflicts shall be sent to the Secretary of State
at the time when the state agency is notified.
(6)
Perform other functions regarding the waterfront revitalization area
and direct such actions or projects as are necessary, or as the Town
Board may deem appropriate, to implement the LWRP.
C.
In order to foster a strong relationship and maintain an active liaison
among the agencies responsible for the implementation of the LWRP,
the Waterfront Coordinator shall schedule at least semi-annually a
LWRP coordinating council/assembly, including but not limited to representatives
of the Town Board, Planning Board, Zoning Board of Appeals, and such
other Town departments or individuals involved with LWRP implementation.
A.
Whenever a proposed action is located in the waterfront revitalization 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 I below. No action in the waterfront revitalization area shall be approved, funded or undertaken by an agency without such a determination.
B.
The Waterfront Coordinator shall be responsible for coordinating
review of actions in the Town's waterfront revitalization 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 Waterfront Coordinator will also coordinate with the NYS Department
of State and other directly involved state agencies the Town's input,
based on the Town's knowledge of the local conditions and purposes
of the LWRP, regarding consistency review for actions by state or
federal agencies.
C.
The Waterfront Coordinator will assist each agency with preliminary
evaluation of actions in the waterfront revitalization area, and with
preparation of a WAF. 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 revitalization
area, the agency shall refer to the Waterfront Coordinator for preparation
of a WAF, a sample of which is appended to this local law. The Waterfront
Coordinator will coordinate their preliminary evaluation with permitting
or other review by each agency or the agencies considering an action.
D.
The Waterfront Coordinator shall require the applicant to submit
all completed applications, EAFs, and any other information deemed
necessary to its consistency recommendation. The recommendation shall
indicate whether, in the opinion of the Waterfront Coordinator, 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 Waterfront Coordinator shall,
along with its 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. Such recommendation
shall go to the agency within 30 days of receipt of the completed
information submitted by the applicant.
E.
If an action requires approval of more than one agency, decisionmaking
will be coordinated between agencies to determine which agency will
conduct the final consistency review and make a consistency determination,
and that agency will thereafter act as the designated consistency
review agency. Only one WAF per action will be prepared. If the agencies
cannot agree, the Waterfront Coordinator shall designate the consistency
review agency.
F.
Upon recommendation of the Waterfront Coordinator, the agency shall consider whether the proposed action is consistent with the LWRP policy standards summarized in Subsection I herein.
(1)
Prior to making its determination of consistency, the agency shall
consider the consistency recommendation of the Waterfront Coordinator.
The agency shall render a written determination of consistency based
on the WAF, the Waterfront 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 waterfront area
without a determination of consistency. The designated agency will
make the final determination of consistency.
(2)
The Zoning Board of Appeals is the designated agency for the determination
of consistency for variance applications subject to this law. The
Zoning Board of Appeals shall consider the written consistency recommendation
of the Waterfront 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 law.
G.
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 final EIS and is located in the waterfront revitalization area until the agency has made a written finding regarding the consistency of the action with the local policy standards referred to in Subsection I herein.
H.
In the event the Waterfront 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 of the Waterfront
Coordinator and explain the manner and extent to which the action
is consistent with the LWRP policy standards.
I.
Actions to be undertaken within the waterfront revitalization 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 Section III of the Town of Bethlehem LWRP, a copy
of which is on file in the Clerk's office and available for inspection
during normal business hours. Agencies which undertake direct actions
shall also consult Section IV, Proposed Land and Water Uses and Projects,
of the LWRP in making their consistency determination. The action
shall be consistent with the policies to:
(1)
Restore, revitalize, and redevelop deteriorated and underutilized
waterfront areas for commercial, industrial, cultural, recreational
and other compatible uses (Policy 1).
(2)
Retain, develop and promote water-dependent uses and facilities on
or adjacent to coastal waters (Policy 2).
(3)
Further develop the state's Port of Albany as a center of commerce
and industry and encourage the siting of land use and development
which is essential to, or in support of, the waterborne transportation
of cargo and people (Policy 3).
(4)
Strengthen the economic base of small harbor areas by encouraging
traditional uses and activities (Policy 4).
(5)
Ensure that development occurs where adequate public infrastructure
is available (Policy 5).
(6)
Streamline development permit procedures (Policy 6).
(7)
Protect, preserve and, where practical, restore significant and locally
important fish and wildlife habitats from human disruption and chemical
contamination (Policies 7, 8).
(8)
Expand recreational use of fish and wildlife resources by increasing
access to existing resources, supplementing existing stocks, and developing
new resources (Policy 9).
(9)
Maintain, promote and expand commercial fishing opportunities (Policy
10).
(10)
Minimize flooding and erosion hazards through nonstructural means,
protecting natural protective features, construction of carefully
selected, long-term structural measures and appropriate siting of
structures (Policies 11, 12, 13, 14, 16, and 17).
(11)
Public funds shall be used for erosion protection structures only
where necessary and in an appropriate manner (Policy 16).
(12)
Safeguard economic, social and environmental interests in the waterfront
revitalization area when major actions are undertaken (Policy 18).
(13)
Maintain and improve public access to the shoreline and to water-related
recreational facilities while protecting the environment and being
compatible with adjoining uses (Policies 19 and 20).
(14)
Encourage, facilitate and give priority to water-dependent and water-enhanced
recreation (Policy 21).
(15)
Encourage development, when located near the shore, to provide for
water-related recreation where compatible (Policy 22).
(16)
Protect and restore historic and archeological resources (Policy
23).
(17)
Prevent impairment to, protect, restore or enhance scenic resources
(Policies 24 and 25).
(18)
Conserve and protect agricultural lands (Policy 26).
(19)
Site and construct energy facilities in a manner which will be compatible
with the environment and contingent upon the need for a waterfront
or water location (Policies 27, 29, and 40).
(20)
Undertake ice management practices in a manner that avoids adverse
coastal impacts (Policy 28).
(21)
Protect surface water and groundwater from direct and indirect discharge
of pollutants and from overuse (Policies 30, 31, 32, 33, 34, 35, 36,
37, and 38).
(22)
Ensure that dredging and dredge spoil disposal is undertaken in a
manner protective of natural resources (Policies 15 and 35).
(23)
Ensure that any transportation, handling or disposal of hazardous
wastes and effluent is undertaken in a manner which will not adversely
affect the environment (Policies 8, 30, 36, and 39).
(24)
Protect air quality (Policies 41, 42 and 43).
(25)
Preserve and protect tidal and freshwater wetlands (Policy 44).
J.
If the agency determines that an action will be inconsistent with
one or more LWRP policy standards or objectives, such action shall
not be undertaken unless modified to be consistent with the LWRP policies.
K.
Each agency shall maintain a file for each action made the subject
of a consistency determination, including any recommendations received
from the Waterfront Coordinator. Such files shall be made available
for public inspection upon request.
Refer to Waterfront Assessment Form (WAF) appended to this chapter
"80-Attachment 1."
In the event that an activity is being performed in violation
of this law or any conditions imposed thereunder, the Waterfront Coordinator
shall inform the Building Inspector, or any other authorized official
of the Town, that a stop-work order shall be issued 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 who violates any of the provisions of, or who fails to comply
with any condition imposed by, this law shall have committed a violation,
punishable by a fine not exceeding $350 for a conviction of a first
offense and punishable by a fine of $700 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 Town Attorney is authorized and directed to institute any and
all actions and proceedings necessary to enforce this local law. Any
civil penalty shall be in addition to and not in lieu of any criminal
prosecution and penalty.
