Town of Evans, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Evans as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Beaches — See Ch. 64.
Flood damage prevention — See Ch. 113.
Marinas — See Ch. 132.
Parks — See Ch. 142.
Public improvements — See Ch. 151.
Streams and watercourses — See Ch. 172.
Subdivision of land — See Ch. 178.
Topsoil and drainage protection — See Ch. 186.
[Adopted 10-19-2011 by L.L. No. 8-2011]

§ 197-1 Title.

This article will be known as the "Town of Evans Local Waterfront Revitalization Program (LWRP) Consistency Review Law."

§ 197-2 Authority; purpose; applicability.

A. 
This article 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 article is to provide a framework for the agencies of the Town of Evans (Town) to incorporate the policies and purposes contained in the Town of Evans Local Waterfront Revitalization Program (LWRP) when reviewing applications for actions or direct agency actions located within the waterfront area and to ensure 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 Evans that the preservation, enhancement and utilization of the natural and man-made resources of the waterfront area of the Town occur in a coordinated and comprehensive manner to ensure a proper balance between the protection of natural resources and the need to accommodate growth and economic development. Accordingly, this article is intended to achieve such a balance, permitting the beneficial use of waterfront resources while preventing the loss and degradation of living waterfront resources and wildlife; adverse impacts to historic structures; diminution of open space areas or public access to the waterfront; disruption of natural waterfront processes; impairment of scenic, cultural or historical resources; losses due to flooding, erosion and sedimentation; impairment of water quality; and permanent adverse changes to ecological systems.
D. 
The substantive provisions of this article shall only apply while there is in existence a Town of Evans Local Waterfront Revitalization Program that has been adopted in accordance with Article 42 of the Executive Law of the State of New York.

§ 197-3 Definitions.

As used in this article, the following terms shall have the meanings indicated:
ACTIONS
Include all of the following, except minor actions:
A. 
Projects or physical activities, such as construction or any other activities that may affect natural, man-made or other resources in the waterfront 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;
B. 
Agency planning and policymaking activities that may affect the environment and commit the agency to a definite course of future decisions;
C. 
The 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
D. 
Any combination of the above.
AGENCY
Any public board, agency, department, office, other body, or officer thereof.
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 Evans, as shown on the coastal area map on file in the office of the Secretary of State and as delineated in the Town of Evans Local Waterfront Revitalization Program (LWRP).
CODE ENFORCEMENT OFFICER
The Building Inspector and/or Code Enforcement Officer of the Town of Evans.
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 applicant or agency, such as, but not limited to, a capital project, rule-making, procedure-making and policy-making.
ENVIRONMENT
The physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archaeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health.
LOCAL WATERFRONT REVITALIZATION PROGRAM (LWRP)
The Local Waterfront Revitalization Program of the Town of Evans, 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 Town Clerk of the Town of Evans.
MINOR ACTIONS
Include the following actions, which are not subject to review under this article:
A. 
The repaving or widening of existing paved highways not involving the addition of new travel lanes;
B. 
Street openings and right-of-way openings for the purpose of repair or maintenance of existing utility facilities;
C. 
The 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;
D. 
The granting of individual setback and lot line variances, except in relation to a regulated natural feature or a seawall or other shoreline erosion protection structures;
E. 
Minor, temporary uses of land having negligible or no permanent impact on waterfront resources or the environment;
F. 
The installation of traffic control devices on existing streets, roads and highways;
G. 
The mapping of existing roads, streets, highways, natural resources, land uses and ownership patterns;
H. 
Information collection, including basic data collection and research, water quality and pollution studies, traffic counts, engineering studies, surveys, subsurface investigations and soils studies, that does not commit the agency to undertake, fund or approve any action;
I. 
Official acts of a ministerial nature involving no exercise of discretion, including building permits where issuance is predicated solely on the applicant's compliance or noncompliance with the relevant local building code;
J. 
Routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment;
K. 
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 that those activities do not commit the agency to commence, engage in or approve such action;
L. 
Collective bargaining activities;
M. 
Investments by or on behalf of agencies or pension or retirement systems, or refinancing existing debt;
N. 
Inspections and licensing activities relating to the qualifications of individuals or businesses to engage in their business or profession;
O. 
The purchase or sale of furnishings, equipment or supplies, including surplus government property, other than the following: land, radioactive material, pesticides, herbicides, the storage of road deicing substances, or other hazardous materials;
P. 
The adoption of regulations, policies, procedures and local legislative decisions in furtherance of any action on this list;
Q. 
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 article have been fulfilled;
R. 
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;
S. 
The adoption of a moratorium on land development or construction;
T. 
Interpreting an existing code, rule or regulation;
U. 
The designation of local landmarks or their inclusion within historic districts;
V. 
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 article;
W. 
Local legislative decisions, such as rezoning, where the Town of Evans determines that the action will not be approved.
WATERFRONT AREA
The waterfront revitalization area delineated in the Town's Local Waterfront Revitalization Program.
WATERFRONT ASSESSMENT FORM (WAF)
The form, a sample of which is appended to this article,[1] used by an agency or other entity to assist in determining the consistency of an action with the Local Waterfront Revitalization Program.
[1]
Editor's Note: The waterfront assessment form is on file in the Town offices.

§ 197-4 Management and coordination of LWRP.

The Town Planning Division, in consultation with the Town Code Enforcement Office, shall:
A. 
Be responsible for coordinating the review of actions proposed within the Town's waterfront area for consistency with the LWRP. It will advise and assist applicants and make consistency determinations for the implementation of the LWRP, its policies and projects, including physical, legislative, regulatory, administrative and other actions included in the program. No approval or decision shall be rendered for a proposed action in the Evans waterfront area without the issuance of a written determination of consistency from the Town.
B. 
Coordinate with the New York State Department of State on the consistency review of actions proposed by federal and other state agencies.
C. 
Assist the Town Board in making applications for funding from state, federal, or other sources to finance projects under the LWRP.
D. 
Perform other functions regarding the waterfront area and direct such actions or projects as the Town Board may deem appropriate to implement the LWRP.

§ 197-5 Review of actions; consistency determination; evaluation criteria.

A. 
Prior to approving, funding or undertaking an action proposed within the Town's waterfront area, the Town Planning Division and the Town Code Enforcement Office will collaborate to evaluate the proposed action and make a determination that the action is consistent with the LWRP policy standards summarized in Subsection G herein. No action in the waterfront area shall be approved, funded or undertaken without such a determination.
B. 
Whenever the Town receives an application for approval or funding of an action, or as early as possible in a Town department's formulation of a direct action to be undertaken in the waterfront area, the application or project information shall be referred to the Planning Division office, along with a copy of the completed waterfront assessment form within 10 days of its receipt.
C. 
Upon receipt of an application for approval or funding, the Town Planning Division shall coordinate with the Town Code Enforcement Office to consider whether the proposed action is consistent with the LWRP policy standards set forth in Subsection G herrein. The Town Planning Division shall require the applicant to submit all completed applications, the waterfront assessment form (WAF), the environmental assessment form (EAF), and any other information deemed necessary for the consistency review and determination.
D. 
Consistency determination.
(1) 
The Town Planning Division, in consultation with the Town Code Enforcement Office, shall render its written determination to the applicant within 30 days following receipt of the WAF, unless extended by mutual agreement of the Town Planning Division, the Town Code Enforcement Office and the applicant.
(2) 
The written consistency determination shall indicate whether the proposed action is consistent or inconsistent with one or more of the LWRP policy standards and shall elaborate, in writing, the basis for this determination. In addition, any recommendations shall be provided concerning modification of the proposed action, including the imposition of conditions, to make it consistent with LWRP policy standards.
(3) 
The Town shall maintain a file for each action made the subject of a consistency determination, including any recommendations made for mitigation. Such file shall be kept in the office of the Town Planning Division and shall be made available for public inspection upon request.
E. 
The Zoning Board of Appeals is the designated agency for making the determination of consistency for variance applications subject to this article. The Zoning Board of Appeals shall consider the written consistency determination of the Town Planning Division and the Town Code Enforcement Office in the event, and at the time, that it makes a decision to grant such a variance and may impose appropriate conditions on the variance to make the proposed action consistent with the objectives of this article.
F. 
Where an environmental impact statement (EIS) is being prepared or required, the draft EIS must identify applicable LWRP policy standards in Subsection G and must include a thorough discussion of the effects of the proposed action on such policy standards.
G. 
Evaluation criteria.
(1) 
Actions to be undertaken within the waterfront area shall be evaluated for consistency in accordance with the following summary of LWRP policy standards, which are derived from and are further explained and described in Section III of the Town of Evans LWRP, a copy of which is on file in the office of the Town Clerk and the office of the Town Planning Division and is available for review during normal business hours. Applicants that undertake direct actions must also consult Section IV in making their consistency determination.
(2) 
As appropriate, an action shall be consistent with the policy to:
(a) 
Revitalize deteriorated and underutilized waterfront areas (Policy 1).
(b) 
Retain and promote water-dependent uses (Policies 2, 21, 22).
(c) 
Ensure that development occurs where adequate public infrastructure is available to reduce health and pollution hazards (Policy 5).
(d) 
Streamline development permit procedures (Policy 6).
(e) 
Protect significant and locally important fish and wildlife habitats from human disruption and contamination from hazardous substances (Policies 7, 8).
(f) 
Maintain, promote and expand recreational fishing opportunities (Policies 9, 10).
(g) 
Minimize flooding and erosion hazards through nonstructural means, carefully selected, long-term structural measures and the appropriate siting of structures (Policies 11, 12, 13, 14, 16, 17).
(h) 
Safeguard economic, social and environmental interests in the waterfront area when major actions are undertaken (Policy 18).
(i) 
Maintain and improve public access to the waterfront and to water-related recreational facilities while protecting the environment (Policies 2, 19, 20, 21, 22).
(j) 
Protect, enhance and restore historic and archaeological resources (Policy 23).
(k) 
Protect and upgrade scenic resources (Policy 25).
(l) 
Conserve and protect agricultural lands (Policy 26).
(m) 
Site and construct energy facilities that are dependent upon the need for a waterfront or water location in a manner that would be compatible with the environment (Policies 27, 29, 40).
(n) 
Prohibit ice management practices that could adversely impact significant fish and wildlife and their habitats and other waterfront resources (Policy 28).
(o) 
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).
(p) 
Perform dredging and dredge spoil disposal in a manner that is protective of natural resources (Policies 15, 35).
(q) 
Handle and dispose of hazardous wastes and effluent in a manner that will not adversely affect the environment (Policies 8, 30, 36, 39).
(r) 
Protect air quality (Policies 41, 42, 43).
(s) 
Protect tidal and freshwater wetlands (Policy 44).

§ 197-6 Written consistency determination required; enforcement.

A. 
No action within the Town of Evans waterfront area, which is subject to review under this article, shall proceed until a written determination has been issued indicating that the action is consistent with the Town's LWRP policy standards.
B. 
In the event that an activity is being performed in violation of this article or any conditions imposed therewith, the Town Code Enforcement Officer shall issue a stop-work order for all work to immediately cease. No further work or activity shall be undertaken on the project so long as a stop-work order is in effect.
C. 
The Code Enforcement Officer shall be responsible for enforcing this article.

§ 197-7 Penalties for offenses.

A. 
A person who violates any of the provisions of or who fails to comply with any condition imposed by this article shall have committed a violation punishable by a fine not exceeding $350 and/or a term of imprisonment not to exceed 15 days for a conviction of a first offense and punishable by a fine not to exceed $2,000 and/or a term of imprisonment not to exceed 15 days for a conviction of a second or subsequent offense.
B. 
For the purpose of conferring jurisdiction upon courts and judicial officers, each week of continuing violation shall constitute a separate and additional violation.
C. 
The Code Enforcement Officer and the Town Attorney are authorized 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. The Town may also enforce this article by injunction or other civil proceeding.