[HISTORY: Adopted by the Town Board of the Town of Delaware 8-18-1999 by L.L. No.
3-1999. Amendments noted where applicable.]
This chapter shall be known as the "Town of Delaware Waterfront
Consistency Review Law."
A.
This chapter 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 chapter is to provide a framework for agencies
of the Town of Delaware to consider the policies and purposes contained
in the Town of Delaware 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 Town of Delaware 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, economic
development, and attract the traveling public. Accordingly, this chapter
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 chapter shall only apply while
there is in existence a Town of Delaware Local Waterfront Revitalization
Program which has been adopted in accordance with Article 42 of the
Executive Law of the State of New York.
Either Type I or unlisted actions as defined in SEQRA regulations
(6 NYCRR 617.2), 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, that:
Agency planning and policy-making 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 the environment.
Any proposed action within the Town's local waterfront
revitalization area that requires site plan review and approval by
the Town of Delaware.
Any combinations of the above.
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This law does not apply to Type II, excluded or exempt, actions
as defined in the SEQRA regulations at 6 NYCRR Part 617.
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Any board, agency, department, office, other body or officer
of the Town of Delaware.
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 Delaware, as shown on
the Coastal Area Map on file in the office of the Secretary of State
and as delineated in the Town of Delaware Local Waterfront Revitalization
Program.
The form used by an agency to assist it in determining the
consistency of an action with the Town of Delaware Local Waterfront
Revitalization Program.
Means 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 an agency,
such as but not limited to a capital project, rule making, procedure
making and policy making.
The Local Waterfront Revitalization Program of the Town of
Delaware, 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
Clerk of the Town of Delaware.
The LWRP Advisory Committee of the Town of Delaware.
The LWRP Advisory Committee is authorized to review and make
recommendations to appropriate agencies regarding the consistency
of proposed actions with the Town of Delaware Local Waterfront Revitalization
Program policy standards and conditions.
A.
Whenever a proposed action is located within the Town's coastal 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 J herein.
B.
Each agency of the Town shall be responsible for making its own consistency
determinations.
C.
Where more than one local agency is involved in reviewing a proposed action, the "lead agency" (as that term is defined in the SEQRA regulations) shall be responsible for making the determination that the proposed action is consistent with the LWRP policy standards and conditions set forth in Subsection J herein.
D.
The consistency determination process required by this chapter shall
be coordinated with the environmental review process set forth in
SEQRA to the greatest extent possible.
E.
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 of the
proposed action.
F.
The agency shall refer a copy of the completed CAF to the LWRP Advisory
Committee within 10 days of its submission and, prior to making its
determination, shall consider the recommendation of the LWRP Advisory
Committee with reference to the consistency of the proposed action
with the Town's Local Waterfront Revitalization Program.
G.
After referral from an agency, the LWRP Advisory Committee shall consider whether the proposed action is consistent with the LWRP policy standards and conditions set forth in Subsection J herein. The LWRP Advisory Committee shall require the applicant to submit all completed applications, CAFs and any other information deemed to be necessary to its consistency review and recommendation.
H.
The LWRP Advisory Committee 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 LWRP Advisory Committee
and the applicant or, in the case of direct action, the agency. The
recommendation shall indicate whether, in the opinion of the LWRP
Advisory Committee, 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 LWRP Advisory Committee 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 LWRP Advisory Committee's recommendation
is not forthcoming within the specified time, the referring agency
shall make its decision without the benefit of the LWRP Advisory Committee's
recommendation.
I.
The agency shall make the determination of consistency based on the
CAF, SEQRA documents, the application and project documentation, the
LWRP Advisory Committee recommendation, and relevant recommendations
from other agencies, 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 the LWRP Advisory Committee's
recommendation and submission by the applicant of any additional required
information. 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 chapter.
J.
Actions to be undertaken within the Town of Delaware 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 Delaware LWRP,
a copy of which is on file in the Town Clerk's office and available
for inspection during normal business hours. Agencies which undertake
direct actions shall also consult with Section IV of the LWRP in making
their consistency determination. The action shall be consistent with
the policy to:
(1)
Revitalize the deteriorated and under-utilized waterfront areas of
the Town of Delaware (Policy 1).
(2)
Facilitate the siting of water-dependent uses and facilities on or
adjacent to the coastal waters of the Town of Delaware (Policy 2).
(3)
Ensure that development occurs where adequate public infrastructure
is available to reduce health and pollution hazards (Policy 3).
(4)
Protect, preserve and, where practicable, restore significant and
locally important fish and wildlife habitats so as to maintain their
viability as habitats and prevent human disruption and chemical contamination
(Policy 4).
(5)
Minimize flooding hazards through nonstructural means, carefully
selected, long-term structural measures, and appropriate siting of
structures (Policy 5).
(6)
Minimize erosion damage to natural resources and damage to property
from erosion by directing development away from steeply sloped areas
and through nonstructural measures whenever possible (Policy 6).
(7)
Maintain and improve public access to the shoreline and the water-related
recreational facilities while protecting the environment (Policy 7).
(8)
Protect and restore historic and archeological resources (Policy
8).
(9)
Protect and improve the visual quality of the waterfront area (Policy
9).
(10)
Conserve and protect agricultural lands in the waterfront area
(Policy 10).
(11)
Municipal, industrial and commercial discharge of effluent and
pollutants into water bodies will conform to state and national water
quality standards (Policy 11).
(12)
The Town of Delaware's Local Waterfront Revitalization
Program will be considered while reviewing state water body classifications
and while modifying water quality standards (Policy 12).
(13)
Best management practices will be used to ensure control of
stormwater runoff, combined sewer outflows, and nonpoint discharge
of excess nutrients, organics and eroded soils into state waterways
(Policy 13).
(14)
Encourage use of innovative sanitary waste systems where existing
Town systems are not available (Policy 14).
(15)
Ensure that excavation, dredging and dredge spoil disposal are
undertaken in such a manner that protects fish and wildlife habitats,
scenic resources, natural protective features, important agricultural
lands, and does not cause an increase in the erosion of such land
(Policy 15).
(16)
Preserve and protect wetlands and the benefits derived from
these resources (Policy 16).
(17)
Continue to support the goals of the Upper Delaware River Management
Plan by enforcing the Town Zoning Law and updating its provisions
as necessary to address changing development concerns (Policy 17).
(18)
Involve the public and local business owners in all revitalization
efforts, particularly in any downtown improvement where such participation
is essential to success (Policy 18).
K.
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:
(1)
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.
(2)
The action would be undertaken in a manner which will minimize all
adverse 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.
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Such a finding shall constitute a determination that the action
is consistent with the LWRP policy standards and conditions.
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L.
Each agency shall maintain a file for each action made the subject
of a consistency determination, including any recommendations received
from the LWRP Advisory Committee. Such files shall be made available
for public inspection upon request.
The Town Zoning Enforcement Officer shall be responsible for
enforcing this chapter. No work or activity on a project in the coastal
area which is subject to review under this chapter shall be commenced
or undertaken until the Zoning Enforcement Officer has been presented
with a written determination from an agency that the action is consistent
with the Town's 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 Zoning 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.
A person who violates any of the provisions of or who fails to comply
with any conditions imposed by this chapter shall have committed a
violation, punishable by a fine not exceeding $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 offense.
B.
The Town Attorney is authorized and directed to institute any and
all actions and proceedings necessary to enforce this chapter. Any
civil penalty shall be in addition to and not in lieu of any criminal
prosecution and penalty. The Town may also enforce this chapter by
injunction or other civil proceeding.
