[HISTORY: Adopted by the Town Board of the Town of Newfane 3-26-1997 by L.L. No.
1-1997 (Ch. 43 of the 1971 Code). Amendments noted
where applicable.]
This chapter will be known as the "Town of Newfane Waterfront
Consistency Review Law."
A.
This chapter is adopted under the authority of § 10 of
the Municipal Home Rule Law; the Waterfront Revitalization of Coastal
Areas and Inland Waterways Act (Article 42 of the Executive Law);
Article IX, § 1, of the New York State Constitution; and
Article 5-G of the General Municipal Law of the State of New York
and expressly supersedes any inconsistent general or local law regarding
consistency review, zoning and waterways.
B.
The purpose of this chapter is to provide a framework for agencies
of the Town of Newfane to consider the policies and purposes contained
in the Local Waterfront Revitalization Program (LWRP) of the Town
of Newfane when reviewing applications for actions or direct agency
actions located in the Coastal Area and to assure that such actions
are consistent with those policies and purposes.
C.
It is the intention of the Town of Newfane that the preservation,
enhancement and utilization of the natural and man-made resources
of the unique Coastal Area of the Town 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, it is the purpose of this chapter to achieve
such a balance, permitting the beneficial use of coastal resources
while preventing loss of living coastal resources and wildlife; diminution
of open space areas and public access 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 chapter shall only apply while
there is in existence a LWRP which has been adopted in accordance
with Article 42 of the Executive Law of the State of New York.
All boards, departments, offices, other bodies or officers of the Town of Newfane must comply with this chapter, to the extent applicable, prior to carrying out, approving or funding any action other than Type II exempt or excluded actions as those terms are defined in Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York, except as provided in § 259-5F of this chapter.
As used in this chapter, the following terms shall have the
meanings indicated:
Either Type I or unlisted actions as defined in SEQR regulations
(6 NYCRR Part 617) which are undertaken by an agency and which include:
Projects or physical activities, such as construction or other
activities, that may affect the environment by changing the use, appearance
or condition of any natural resource or structure, which:
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
chapters, codes, ordinances, executive orders and resolutions that
may affect the environment; and
Any combination of the above.
Any board, agency, department, office, other body or officer
of the Town of Newfane.
Any person making an application or other request to an agency
to provide funding or to grant approval or a permit in connection
with a proposed action.
That portion of the 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 Newfane, as shown on
the Coastal Area Map on file in the office of the Secretary of State
and as delineated in the Newfane LWRP.
The form, contained in Appendix A of this chapter,[1] used by an agency to assist it in determining the consistency
of an action with the LWRP.
That the action will fully comply with the LWRP policy standards
and conditions and, whenever practicable, will advance one or more
of them.
Actions planned and proposed for implementation by a Town
agency, such as but not limited to capital projects, promulgation
of rules, regulations, laws, codes or ordinances and policymaking
which commits an agency or the Town to a course of action.
The Local Waterfront Revitalization Program of the Town of
Newfane, as 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.
[1]
Editor's Note: Appendix A is on file in the office of
the Town Clerk.
A.
Whenever an action is proposed in the Town's Coastal Area affecting any land or water use or any natural resource of such Coastal Area, the Planning Board or the Zoning Board of Appeals (ZBA), as appropriate, prior to an agency or such Board approving, funding or undertaking the action, shall make a determination that is consistent with the LWRP policy standards and conditions set forth in Subsection G herein. No action in the Coastal Area shall be approved, funded or undertaken without a determination that it is consistent.
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 Coastal Area, the applicant
or, in the case of a direct action, the agency shall prepare a coastal
assessment form (CAF) to assist with the consistency review. All agencies
of the Town, except the ZBA, shall refer a copy of the CAF to the
Planning Board within 10 days of receipt of the completed CAF.
C.
After referral from an agency, the Planning Board shall consider whether the proposed action is consistent with the Newfane LWRP policy standards and conditions set forth in Subsection G below. The Planning Board shall require the agency or applicant to submit all completed forms, applications, CAFs and any other information necessary to its consistency review. During its deliberations, the Planning Board may solicit advisory opinions from other boards and departments in the Town. If an opinion is requested, a response shall be made by the entity receiving the request within 15 days of receipt. If no response is received, the Planning Board shall proceed without such advisory opinions.
D.
The Planning Board shall make a written determination of consistency
and forward it to the agency within 30 days following referral of
all completed forms, applications, CAFs and any other information
necessary for the consistency determination from the agency or the
applicant, unless extended by mutual agreement of the Planning Board
and the applicant or, in the case of a direct action, the agency.
The determination shall indicate, in writing, whether the action is
consistent or inconsistent with all of the applicable LWRP policy
standards and conditions. The Planning Board may, along with its determination,
impose conditions on the proposed action which would make it consistent
with the LWRP policy standards and conditions or would greater advance
them.
E.
The ZBA shall make its own consistency determinations as described
above and shall be governed by the time frames and the permissive
referral of an action to other agencies and departments in the Town
for advisory opinions and shall have the authority to impose conditions
on the action to ensure it is conducted in accordance with this chapter.
Under no circumstances, however, shall the Board have the authority
to overrule the decision of the ZBA on any matter within the ZBA's
statutory jurisdiction to grant variances or decide appeals.
F.
Basis for determination; imposition of conditions.
(1)
Consistency determinations by the Planning Board or ZBA be made based
upon the CAF, the environmental assessment form (EAF), any advisory
opinions received and any other information considered relevant.
(2)
Where it is determined that an action may have a significant effect
on the environment, the draft environmental impact statement (DEIS)
and the final environmental impact statement (FEIS) each must contain
a discussion of the effects of the action on and its consistency with
the LWRP policy standards and conditions identified as applicable.
(3)
Where it is determined that the action will not have a significant
effect upon the environment, the Planning Board or the ZBA nonetheless
make a written determination of consistency.
(4)
After receipt of the consistency determination of the Planning Board,
the agency shall have the authority to impose conditions specified
by the Planning Board on an action to ensure it is conducted in accordance
with this chapter.
G.
Actions to be undertaken within the Coastal 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 Town of Newfane LWRP.[1] In the case of direct actions by agencies, the Planning
Board or the ZBA shall also consult with Section IV of the LWRP in
making its consistency determination. The action shall be consistent
with the policy to:
(1)
Revitalize deteriorated and underutilized waterfront areas through
a mixture of uses (Policies 1, 1A, 1B, 1C and 1D).
(2)
Retain and preserve existing and promote new water-dependent uses
(Policies 2, 2A, 2B, 2C and 2D).
(3)
Ensure that development occurs where adequate public infrastructure
is available (Policies 5, 5A and 5B).
(4)
Streamline development permit procedures (Policy 6).
(5)
Protect significant and locally important fish and wildlife habitats
from human disruption and chemical contamination (Policies 7, 7A,
7B, 7C, 8, 8A and 8B).
(6)
Maintain and expand recreational fishing opportunities (Policies
9, 9A and 9B).
(7)
Minimize flooding and erosion hazards through protection of natural
features, nonstructural means, carefully selected long-term structural
measures and appropriate siting of structures (Policies 11, 11A, 12,
13, 14, 15, 16 and 17).
(8)
Safeguard economic, social and environmental interests in the coastal
area in which major actions are undertaken (Policy 18).
(9)
Maintain and improve public access to the shoreline and other water-related
recreational facilities while protecting the environment (Policies
1, 1A, 2, 2A, 2B, 9, 9A, 19, 19A, 19B, 19C, 19D, 19E, 20, 20A, 20B,
20C, 21, 21A and 22).
(10)
Protect and restore historic and archaeological resources (Policies
23 and 23A).
(11)
Protect and upgrade local scenic resources (Policy 25).
(12)
Protect and conserve agricultural lands (Policy 26).
(13)
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 and 27A).
(14)
Prevent ice management practices which could damage significant
fish and wildlife and their habitat (Policy 28).
(15)
Protect surface water and groundwater from direct and indirect
discharge of pollutants and from overuse (Policies 30, 31, 32, 33,
34, 35, 35A, 35B, 36, 37, 37A and 38).
(16)
Perform dredging and dredge spoil disposal in a manner protective
of natural resources (Policies 15, 35, 35A and 35B).
(17)
Handle and dispose wastes and effluent in a manner which will
not adversely affect the environment (Policy 39).
(18)
Preserve and protect freshwater wetlands (Policies 44 and 44A).
[1]
Editor's Note: The Local Waterfront Revitalization Program
Policies are on file in the Town offices.
H.
Findings for action inconsistent with policy. If the Planning Board
or the ZBA 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 such Planning Board or ZBA makes
a written finding with respect to the proposed action that:
(1)
There are no reasonable alternatives 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.
(2)
The action would be undertaken in a manner which will minimize all
advise effects on such LWRP policy standards and conditions.
(3)
The action will advance one or more of the other LWRP policy standards
and conditions.
(4)
The action will result in an overriding Town, regional or statewide
public benefit. Such a finding shall constitute a determination that
the action is consistent with the LWRP policy standards and conditions.
The Town Building Inspector and/or Code Enforcement Officer
shall be responsible for enforcing this chapter. No work or activity
on a project in the Coastal Area that is subject to review under this
chapter shall be commenced or undertaken until the Building Inspector
and/or Code Enforcement Officer has been presented with a written
determination from the Planning Board or ZBA that the action is consistent
with the LWRP policy standards and conditions. In the event that an
activity is not being performed in accordance with this chapter or
any conditions imposed thereunder, the Building Inspector and/or Code
Enforcement Officer 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.
Any person who violates any of the provisions of or who fails to
comply with any condition imposed by this chapter shall have committed
a violation, punishable by a fine not exceeding $250 for a conviction
of a first offense and punishable by a fine not exceeding $250 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 chapter for
violations which occur within its jurisdiction. Any civil penalty
shall be in addition to and not in lieu of any criminal prosecution
and penalty.
