Town of East Hampton, NY Article IV Protection of Natural Resources

§ 255-4-10 Purpose of article.

[Amended 4-13-2007 by L.L. No. 14-2007]

The regulations in this article are adopted to protect and perpetuate some of the Town's most important natural resources. Rapid growth and development have encroached upon or despoiled many of the Town's wetlands, watercourses, tidal waters, natural drainage areas, watersheds and water recharge areas, as well as its beaches, dunes, bluffs, and other coastal features. These natural resources, which are threatened by the Town's growth, constitute important physical, social, scenic, aesthetic, recreational, and economic attributes of the Town. The provisions of this article are therefore designed to preserve and maintain these natural resources by minimizing their disturbance. Such protection will benefit the Town and its people in many ways, among which are the following:

A. The protection of wetlands, watercourses, tidal waters, and marine habitat from damage caused by pollution, turbidity, siltation, or direct destruction, thereby protecting stocks of fish, shellfish, and other marine organisms, as well as the wildlife and vegetation which depend upon these resources for their survival.

B. The protection of the Town's underground water supply and the quality of its tidal and fresh waters, through the preservation of natural filtration areas, natural vegetative buffers, and recharge sites.

C. The lessening of danger to life and property caused by coastal flooding and storms.

D. The preservation of beaches and other coastal habitat needed to sustain rare or threatened coastal birds, as well as fragile coastal vegetative communities.

E. The preservation of the Town's beaches, dunes, bluffs, wetlands, marshes, and other coastal resources, which together are integral to the character of East Hampton and to its social and economic well-being.

§ 255-4-12 Natural resources.

[Amended 7-2-1993 by L.L. No. 18-1993; 11-15-1996 by L.L. No. 19-1996; 12-18-1997 by L.L. No. 38-1997; 4-13-2007 by L.L. No. 14-2007]

The following are hereby designated as natural resources which are in need of special protection as provided in this article:

A. Tidal and freshwater wetlands. All tidal and freshwater wetlands as defined in this chapter, including all wetlands shown or identified as such on the Freshwater Wetlands Map for Suffolk County, promulgated by the Department of Environmental Conservation pursuant to the Freshwater Wetlands Act (Article 24 of the New York Environmental Conservation Law).

B. Tidal waters and watercourses, and nearshore areas, as defined in this chapter.

C. Beaches, dunes, bluffs, and the vegetation which grows thereon, all as defined in this chapter.

§ 255-4-15 Legislative findings regarding the functions and benefits of natural resources.

[Added 4-13-2007 by L.L. No. 14-2007]

The Town Board finds that the natural resources regulated under this article have important benefits for the Town and its people. Among these benefits, many of which have been expressly recognized by the New York State Legislature in the Environmental Conservation Law, are those set forth below.

A. Tidal wetlands, generally. Tidal wetlands constitute one of the most vital and productive components of the natural world. The many and multiple values of such wetlands include the following:

(1) Marine food production. Tidal wetlands are a nursery and sanctuary for many species of crustaceans, shellfish, and finfish. These wetlands produce nutrients and sustain macro- and microscopic marine organisms and vegetation which are essential to the terrestrial and marine food chains. Two-thirds of the commercially harvested fish and shellfish and 2/3 of sport fish depend on the marsh-estuarine system of the tidal wetlands at some point in their life cycle.

(2) Wildlife habitat. Tidal wetlands are the breeding, nesting, and feeding grounds for many forms of waterfowl, shorebirds, and other wildlife, and are needed by many species as cover from predators.

(3) Flood and storm control. Tidal wetlands provide valuable protection from coastal storms and floods. Their hydrologic water absorption and storage capacity minimize erosion and flood damage; their hydraulic and hydrographic functions serve as a natural buffer protecting upland and developed areas from storm tides and waves.

(4) Recreation. Tidal wetlands directly or indirectly provide thousands of opportunities per year for the pursuit of hunting, fishing, boating, hiking, bird watching, photography, and recreational activities, to the enjoyment of many East Hampton residents and visitors and to the benefit of the Town's economy.

(5) Pollution control. Tidal wetlands serve as an invaluable and irreplaceable biological and chemical oxidation basin in which organic run-off and organic pollution are oxidized, metabolized, and converted into useful nutrients. The vast quantities of oxygen necessary for these processes derive from the photosynthetic mechanism of tidal wetlands.

(6) Sedimentation control. Tidal wetlands are an essential settling and filtering basin for the absorption of silt and organic matter which would otherwise obstruct channels and harbors to the detriment of navigation.

(7) Education and research. Tidal wetlands afford a wide range of opportunities for scientific research, outdoor biophysical laboratory work, and living educational classroom programs, having great training and education value for Town residents and visitors of all ages.

(8) Open space and aesthetic appreciation. Tidal wetlands comprise a large part of the remaining natural and unspoiled areas along the Town's coastline. The public benefit of these natural open areas in a growing, changing Town is significant. Tidal wetlands offer unique open space and aesthetic qualities while sustaining their other natural values.

B. Benefits of specific types of tidal wetlands. Tidal wetlands consist of several ecological zones, including high marsh or salt meadow; coastal fresh marsh; intertidal marsh; the littoral area; coastal shoals, bars, and flats; and nearshore areas. In addition, the upland areas adjoining tidal wetlands serve to protect the wetlands and contribute in important ways to their productivity. The functions and benefits of certain types of tidal wetlands include the following:

(1) High marsh or salt meadow tidal wetlands. High marsh or salt meadow constitutes an extensive zone of salt marshes which receive only occasional tidal flooding coincident with extreme lunar tides and occasional storms. Since their photosynthetic productivity is lower than intertidal marshes and coastal fresh marshes and since flushing of the biological products of the high marsh or salt meadow to the estuary is less efficient than in intertidal and coastal fresh marshes, salt meadows or high marshes, while vital to marine food production, they are slightly less important in this regard than intertidal or coastal fresh marshes. Because of their size and location, however, salt meadows or high marshes are as important for the absorption of silt and organic material and for flood, hurricane, and storm control as intertidal marshes and coastal fresh marshes. Furthermore, because they are generally located as to first receive run-off and other materials from the upland, they have an important role in cleansing ecosystems, although their value in this respect is generally slightly less than in intertidal and coastal fresh marshes because of the lessened tidal influence in high marshes or salt meadows. Because these wetlands are usually located adjacent to intertidal marshes and because their values are similar, salt meadows or high marshes must be stringently protected. Even small portions of these areas are very important resources, although slightly less so than intertidal marshes and coastal fresh marshes.

(2) Intertidal marsh and coastal fresh marsh tidal wetlands. Intertidal and coastal fresh marsh wetlands are the most biologically productive of all tidal wetlands areas. Furthermore, since they receive twice-daily tidal flushing, the products of vegetative photosynthetic activity and decomposition in these zones are readily transported to adjacent waters for use in the estuarine food chain. Their intertidal location makes them among the most effective wetland zones for flood, hurricane, and storm protection. Both their intertidal location and their highly productive nature makes these wetlands among the most effective wetland zones for cleansing ecosystems and for absorbing silt and organic material. Because of these high values and their sensitive location at the land and water interface, intertidal and coastal fresh marshes must be stringently protected. Even small portions of these zones are critically important natural resources.

(3) Nearshore areas and the littoral zone. Nearshore and littoral areas are the habitat of hard and soft clams, oysters, mussels, and scallops, as well as many other types of marine organisms. The shellfish help to support the still significant portion of the Town's population which makes its living from the sea, and also support a recreational shellfishery. Baitfish and other marine species living in these areas are crucial links in the maritime food chain. Along the bay and ocean coastlines of the Town, nearshore bottomland areas play an important role in controlling the erosion of the Town's coastline. Shallow nearshore areas cause waves to collapse or break, thus dissipating wave energy before it is expended on beaches, bluffs, or dunes. They also function as reservoirs of sand and gravel which can be returned to the beaches. Sandbars, which are located in nearshore areas, control the orientation of incoming waves and limit their power, thereby also helping to protect shorelines during storms. The roots of aquatic vegetation in nearshore areas bind fine-grained silts, clays, and organic matter to form a cohesive bottom that resists erosion. This vegetation also assists in trapping sediments.

C. Benefits of freshwater wetlands. Freshwater wetlands are highly productive natural areas which are necessary to the survival of many species of fish, birds, amphibians, reptiles, and mammals. The numerous and varied values of such wetlands include the following:

(1) Freshwater fisheries. In areas with open water, freshwater wetlands are the spawning and nursery grounds for a number of fish species within the Town, several of which are harvested by recreational fishermen. These include yellow perch, smallmouth and largemouth bass, and pickerel. Freshwater wetlands provide the nutrients needed to sustain the aquatic food chain, while purifying stormwater runoff into open waters and helping to regulate the amounts of dissolved oxygen and nitrogen in these waters.

(2) Wildlife and plant habitat. Freshwater wetlands have unparalleled value as wildlife habitat. Most local species of wildlife depend upon their existence to at least some degree. In addition, many species of birds found in the Town at certain times of year are migratory and require freshwater wetlands for nesting or wintering purposes. Freshwater wetlands are also the habitat of numerous species of plants, shrubs, and trees, many of which are specifically adapted to the saturated soil conditions of these wetlands. The eastern end of Long Island, including East Hampton, has an unusually high percentage of the state's rare and threatened plant species; many of these species survive only in freshwater wetlands.

(3) Flood and stormwater control. Freshwater wetlands slow the runoff of stormwaters and temporarily store these waters, thus helping to protect adjacent upland areas from flooding.

(4) Recreation. Freshwater wetlands offer important opportunities for hunting, fishing, boating, hiking, bird watching, photography, and other recreational activities, to the enjoyment of many East Hampton residents and visitors and to the benefit of the Town's economy. In addition, freshwater wetlands contribute to these recreational pursuits well beyond their immediate boundaries, because of their ability to sustain populations of birds and wildlife.

(5) Water supply and water quality. Freshwater wetlands are themselves a source of surface water and, under appropriate hydrological conditions, serve to recharge the Town's groundwater supplies and to maintain surface water flow. Freshwater wetlands also serve as chemical and biological oxidation basins that help to cleanse the water that flows through them. The wetlands absorb silt and organic matter, thereby preventing sedimentation of ponds and other open waters and preserving water quality.

(6) Education and research. Because of their high biological productivity and the variety of plant and animal species that they support, freshwater wetlands benefit the Town's residents and visitors by providing outdoor laboratories and living classrooms for studying and appreciating natural history, ecology, and biology.

(7) Open space and aesthetic appreciation. Freshwater wetlands afford visual variety in many different settings. Freshwater wetlands contribute to the Town's sense of open space and provide a sense of connection with the natural world. These are important elements of the Town's character which underpin its success and survival as both a year-round and resort community.

D. Benefits of beaches. East Hampton's coastal area is characterized by beaches, dunes, and bluffs. These landforms, and the vegetation growing on them, are among the most important natural resources of the Town. The scenic beauty of the Town's beaches, as well as the dunes and bluffs which lie behind them, is a signature of the Town. The value of these features in protecting the Town's coastlands cannot be overstated. Beaches themselves have several important functions, among which are the following:

(1) Flooding and erosion control. Beaches protect shorelands from flooding and erosion by dissipating wave energy that would otherwise be expended against the toe or face of bluffs and dunes, or which would send stormwaters spilling onto upland property. Beaches which are high and wide protect shorelands from erosion and flooding more effectively than beaches that are low or narrow. Beaches also act as a reservoir of sand and other unconsolidated material for littoral transport along the shore and for the formation of protective offshore sandbars and shoals.

(2) Wildlife habitat. Beaches have habitat value, particularly for such shorebirds as the endangered piping plover and least tern. A variety of migratory and resident shorebirds, including piping plover and least tern, are directly dependent on beach habitat for their continued survival.

(3) Recreation. Beaches are perhaps the single most important economic asset of the Town. They attract tourists and second home owners to the Town for a myriad of reasons. If East Hampton's beaches were to become significantly damaged or depleted, and their attraction for visitors thereby reduced, the economic impacts on the Town could well be incalculable.

E. Benefits of bluffs. Bluffs are a natural and scenic asset of the Town. Their many important functions include the following:

(1) Flooding and erosion control. Bluffs protect shorelands and coastal development by absorbing the wave energy associated with open water. Bluffs are also an important source of depositional material for beaches and for offshore sandbars and shoals. Through their own gradual erosion, bluffs provide material to maintain these other coastal features and thus to limit erosion on other sections of the coastline.

(2) Wildlife habitat. Bluffs provide habitat for certain types of birds. This is particularly true on the ocean side of Montauk, where high, steep bluffs of clay and glacial till afford nesting areas for bank swallows.

(3) Scenic vistas. Bluffs provide a natural barrier to development behind them and help preserve the natural scenic vista from the shoreline and surface waters.

F. Benefits of dunes. Dunes are a significant part of East Hampton's coastal aesthetic. They also play an important role in protecting upland areas from storm damage and flooding and, for this reason, were among the first natural features in the Town to be protected by municipal regulation. Among the important functions of dunes are the following:

(1) Flooding and erosion control. Like beaches and bluffs, dunes are of the greatest protective value during conditions of storm-induced high water. Because dunes often protect some of the Town's most biologically productive areas as well as developed coastal areas, their value as protective features is especially great. The two primary protective functions of dunes are prevention of wave overtopping and the storage of sand for coastal processes. High, vegetated dunes are more stable and thus provide a greater degree of protection than low, unvegetated ones. The keys to maintaining a stable dune system are the establishment and maintenance of beach vegetation and the assurance of a dependable supply of sand to nourish the dunes.

(2) (Reserved)

G. Benefits of beach vegetation. Beach and dune vegetation, such as beach grass but including other types of vegetation indigenous to the coastal zone, traps sand and organic matter and holds it in place, thereby helping dunes and bluffs to retain their cohesiveness against the erosive forces of wind and waves. By trapping sand and other material, beach vegetation allows dunes to increase in size and slows the rate of bluff erosion. Beach vegetation is therefore vital in protecting coastal areas from the effects of storms.

§ 255-4-20 Activities requiring natural resources special permits.

[Amended 8-16-1985 by L.L. No. 8-1985; 10-3-1986 by L.L. No. 5-1986; 10-21-1988 by L.L. No. 9-1988; 11-15-1996 by L.L. No. 19-1996; 12-18-1997 by L.L. No. 38-1997; 2-10-1998 by L.L. No. 6-1998; 5-15-1998 by L.L. No. 20-1998; 4-13-2007 by L.L. No. 14-2007]

No person shall undertake any of the activities listed herein without first having obtained a natural resources special permit therefor, pursuant to Article V of this chapter:

A. Wetlands.

(1) On or within any freshwater or tidal wetland, or within 150 feet of any boundary of the same:

(a) Clearing or grading land.

(b) Digging, dredging, or excavating land, or depositing fill or other material upon land.

(c) Building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatsoever in or upon land.

(2) On or within any freshwater or tidal wetland, or within 200 feet of any boundary of the same:

(a) Constructing or installing on or in land any cesspool, septic tank, or other structure, system, or device for the disposal of sewage or other liquid wastes.

(b) Constructing or installing on or in land any structure, system, or device for the receipt or storage of fuel or any other liquid except water.

(3) Filling or altering any wetland.

B. Beaches.

(1) On or within any beach, or within 150 feet of the inland boundary of any beach:

(a) Clearing or grading land.

(b) Digging, dredging, or excavating land, or depositing fill or other material upon land.

(c) Building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatsoever in or upon land.

(2) On or within any beach, or within 200 feet of the inland boundary of any beach:

(a) Constructing or installing on or in land any cesspool, septic tank, or other structure, system, or device for the disposal of sewage or other liquid wastes.

(b) Constructing or installing on or in land any structure, system, or device for the receipt or storage of fuel or any other liquid except water.

C. Bluffs.

(1) Within 150 feet of the bluff line on all lands which lie along the Atlantic Ocean east of Map No. 174, Montauk, and within 100 feet of the bluff line on all other lands:

(a) Clearing or grading land, including the bluff itself.

(b) Digging, dredging, or excavating land, including the bluff itself, or depositing fill or other material upon land.

(c) Building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatsoever in or upon land.

(2) On or within any bluff, clearing, grading, filling, cutting, removing, or otherwise altering the bluff, or undertaking any other activity enumerated in Subsection C(1) above except that, due to the unusual geologic conditions existing in the area specified in § 255-4-40C, such activities may be authorized by a Natural Resources Special Permit (NRSP) in that area. Such NRSP shall expressly determine that a specific project complies with the special permit standards of § 255-5-51D.

[Amended 4-7-2011 by L.L. No. 4-2011]

D. Dunes.

(1) Within 150 feet of the dune crest on all lands which lie along the Atlantic Ocean east of Map No. 174, Montauk, and within 100 feet of the dune crest on all other lands:

(a) Clearing or grading land.

(b) Digging, dredging, or excavating land, or depositing fill or other material upon land.

(c) Building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatsoever in or upon land.

(2) On or within any dune, wherever located, clearing, grading, filling, cutting, removing, or otherwise altering the dune, or undertaking any other activity enumerated in Subsection D(1) above.

E. Waters and nearshore areas.

(1) On or within any nearshore area, tidal water, or watercourse:

(a) Digging, dredging, or excavating land, or depositing fill or other material upon land.

(b) Building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatsoever in or upon land. This provision shall not apply to fish traps.

(2) Filling or altering any watercourse or tidal water.

(3) Constructing, creating, or enlarging, or filling or diminishing in size, any artificial pond or other man-made water body which exceeds 10,000 square feet in surface area or which, regardless of size, is situate in the groundwater table.

F. Velocity floodplain. On any lands lying in the VE flood hazard zone within the Flood Hazard Overlay District:

(1) Clearing or grading land.

(2) Digging, dredging, or excavating land, or depositing fill or other material upon land.

(3) Building, constructing, erecting, reconstructing, enlarging, altering, or placing any structure or other improvement whatsoever in or upon land.

G. Beach vegetation. Clearing, removing, uprooting, burying, or otherwise damaging any beach vegetation, or replacing the same with lawn, sod, or turf. This section shall not be deemed to require a permit for the planting of beach vegetation in a manner which does not disturb existing beach vegetation.

§ 255-4-21 Reduced natural resources jurisdiction.

[Added 12-18-1997 by L.L. No. 38-1997; amended 4-13-2007 by L.L. No. 14-2007]

The distance of 150 feet contained in Subsection A(1) of § 255-4-20 hereof shall be deemed to be reduced to 100 feet for:

A. Minor addition to residence. Building, constructing, erecting, or placing one addition, extension, enclosure, or porch or deck addition, not exceeding 150 square feet in gross floor area, onto an existing residence, together with any clearing, grading, digging, or filling necessarily associated with the same.

B. Minor accessory structure. Building, constructing, erecting, or placing an accessory building or structure, not exceeding 150 square feet in gross floor area and having no plumbing, on a lot containing a residence, together with any clearing, grading, digging, or filling necessarily associated with the same.

C. Reconstruction. The reconstruction or repair of any lawfully preexisting building or structure.

D. Other restrictions or approvals. This section shall not be deemed to authorize any reconstruction or other work prohibited by § 255-1-40 or § 255-1-42 hereof, nor to exempt an applicant from the necessity of obtaining permits or approvals from other agencies, such as the New York State Department of Environmental Conservation or the Town Trustees.

§ 255-4-22 (Reserved) [1]

[1] Editor's Note: Former § 255-4-22, Building permits limited, as amended, was repealed 12-18-1997 by L.L. No. 38-1997. (See now § 255-4-26). Said local law also added §§ 255-4-23, 255-4-24 and 255-4-25, regarding Trustee environmental resource permits, which were repealed 2-10-1998 by L.L. No. 6-1998.

§ 255-4-25 (Reserved) [1]

[1] Editor's Note: Former § 255-4-25, Emergency and minor maintenance exceptions, added 4-4-1986 by L.L. No. 2-1986, as amended, was repealed 12-18-1997 by L.L. No. 38-1997. (See now § 255-4-28.)

§ 255-4-26 Building permits limited.

[Added 12-18-1997 by L.L. No. 38-1997; amended 2-10-1998 by L.L. No. 6-1998]

A. Prior issuance of natural resources special permit. No building permit for any activity, construction, work or use denominated in § 255-4-20 hereof as requiring a special permit shall be issued until a natural resources special permit shall have been obtained for the activity, construction, work or use pursuant to Article V of this chapter.

B. Work envelopes authorized. A natural resources special permit may specify a work envelope, as limited by the local agency issuing the natural resources special permit, within which the authorized activity, construction, work or use may be conducted. No natural resources special permit may specify a work envelope for a swimming pool or playing court or for any building or structure which does not meet the applicable yard or pyramid law setbacks.

[Amended 7-7-2000 by L.L. No. 14-2000]

C. Referral to Planning Department or Natural Resources Department.

[Amended 4-13-2007 by L.L. No. 14-2007]

(1) No building permit may issue on any lot which abuts or contains any wetland, watercourse, or tidal water, or which contains any beach, dune, bluff, or other natural resource designated in § 255-4-12 hereof, until the application for such building permit shall have been referred by the Building Inspector to the Planning Department and/or Natural Resources Department, which shall verify the presence and location of all such designated natural resources on or near the lot.

(2) Upon verifying the presence and location of any natural resource designated in § 255-4-12, the Planning Department and/or Natural Resources Department shall so inform the Building Inspector, in writing. The Building Inspector shall then determine, based upon the presence and location of any natural resource reported by the Planning Department and/or Natural Resources Department, whether a natural resources special permit is required for the activity, improvement, work, or use in question. If a natural resources special permit is required for such activity, improvement, work, or use, no building permit shall be issued until such natural resources special permit has been obtained or the project has been amended so as to avoid the need for the natural resources special permit.

(3) The owner of a lot or his agent may request an inspection of said lot for the purpose of ascertaining whether natural resources regulated under this article exist on or near the lot. Any such lot inspection request shall be submitted to the Building Inspector, who shall refer said request to the Planning Department and/or Natural Resources Department. The Planning Department and/or Natural Resources Department shall perform the lot inspection immediately upon receipt of a referral by the Building Inspector, and shall deliver to the Building Inspector a written statement, within 20 days of the receipt of such lot inspection referral, as to the presence and approximate location of any natural resources on or near the subject lot. The Planning Department's and/or Natural Resources Department's statement on a lot inspection, however, shall not constitute the verification of natural resources which is required by the Subsection C(2) and (3) above.

(4) The property owner or his agent shall provide, and the reviewing department confirm, the existence of any applicable scenic, conservation, agricultural or access easement, and purchase of development rights agreements in or upon the premises, protecting any designated natural feature, or burdening or benefiting the subject property, as to which the Town of East Hampton, a conservation organization or a homeowners' association is a grantee or a party.

[Added 6-20-2019 by L.L. No. 28-2019]

D. Trustee beaches and bottomlands. No building permit shall be issued for any activity, construction, work or use regulated by this article and which is to take place on beaches, bluffs or underwater lands, unless and until the Building Inspector has received a copy of a Town Trustee permit authorizing the activity, construction, work or use, or has received a copy of a Town Trustee letter stating that the Trustees have no jurisdiction over said project. The foregoing sentence shall not apply to any activity, construction, work or use which is to take place wholly on lands located within the hamlet of Montauk or on the underwater lands adjacent thereto, or which is to take place on Gardiner's Island or on the underwater lands adjacent to said island.

[Added 11-5-1999 by L.L. No. 30-1999]

§ 255-4-28 Coastal restoration projects and repair or reconstruction of coastal structures.

[Added 4-13-2007 by L.L. No. 14-2007]

A. Expedited permit review. An expedited administrative natural resources special permit may be obtained, pursuant to the provisions of § 255-8-84 hereof, for any of the following:

(1) The undertaking of a coastal restoration project as defined herein.

(2) The repair or reconstruction, in-place and in-kind, of a lawfully preexisting coastal structure other than an erosion control structure.

(3) The repair or reconstruction, in-place and in-kind, of a lawfully preexisting erosion control structure in Coastal Erosion Overlay Zone 4 of the Coastal Erosion Overlay District.

B. Meaning of in-place and in-kind. For the purposes of this section, work which involves the relocation, enlargement, or extension of a coastal structure, or the replacement of any part of the structure with materially different components or materials, shall not be considered to be in-place and in-kind.

C. Meaning of lawfully preexisting. For the purposes of this section, a structure shall be deemed "lawfully preexisting" only if (i) it received all governmental approvals necessary at the time of its construction or any subsequent alteration, (ii) it is substantially complete and in existence, and (iii) it has not deteriorated to the point at which it is no longer functional for its intended purpose.

D. Other restrictions or approvals. This section shall not be deemed to authorize any reconstruction or other work prohibited by § 255-1-40 or § 255-1-42 hereof, nor to exempt an applicant from the necessity of obtaining permits or approvals from other agencies, such as the New York State Department of Environmental Conservation or the Town Trustees.

E. Minor maintenance. Minor maintenance, in-place and in-kind, to any documented existing dock is permitted, provided that each of the following conditions is satisfied:

(1) The maintenance work proposed does not exceed the aggregate of 25% of the total existing dock area, number of pilings or linear footage of bulkhead;

(2) The materials to be used, method of installation and disposal of material removed are approved in writing by the Natural Resources Department;

(3) A building permit is first obtained incorporating such reasonable conditions as may be necessary; and

(4) No minor maintenance building permits totaling an aggregate of more than 25% have been issued within the prior three years.

F. Upon receipt of an application for a building permit under Subsection E above, the Building Inspector shall refer the matter to the Town Engineer, the Natural Resources Director, and the Planning Department Director to assist him in determining whether the work proposed is of a type described therein or instead represents activity, such as expansion of a structure, new work, repair of damage more than one year old, etc., for which a natural resources special permit must be obtained. Nothing herein shall be deemed to exempt an applicant from the necessity of obtaining approvals or permits other than those required by this chapter, such as a permit from the Town Trustees or the New York State Department of Environmental Conservation.

§ 255-4-29 Emergency activities.

[Added 12-18-1997 by L.L. No. 38-1997; amended 2-10-1998 by L.L. No. 6-1998; 4-13-2007 by L.L. No. 14-2007]

The provisions of this section shall apply to emergency activities within the Coastal Erosion Overlay District which are immediately necessary to protect the public health, safety, or welfare, or to protect publicly or privately owned buildings and structures from major structural damage. For the purposes of this section, emergency activities are actions: (i) designed to protect buildings or structures from major structural damage, if those buildings or structures are in imminent peril of incurring such damage because of flooding or erosion, or (ii) designed to prevent a structural failure of all or part of a building or structure which has already incurred major structural damage because of flooding or erosion. Emergency activities shall be limited to the following actions: moving a building or other structure to a location which is landward of its existing location; making alterations to the building or structure, solely to repair damage already caused by flooding or erosion or to prevent a structural failure of all or part of the building or structure; depositing sand fill seaward of the building or structure; installing a geotextile tube or sandbag system, with provision for its eventual removal as required by this section; or repair of lawfully preexisting coastal erosion structures in Coastal Erosion Overly Zone 3 or 4. Whenever emergency activities are undertaken, damage to natural resources, features, or systems shall be avoided or minimized. Emergency activities shall be governed by the following rules and procedures:

A. Notification of Building Inspector. Prior to the commencement of any emergency activity described in this section, the Building Inspector shall be notified in writing and shall determine whether to authorize the proposed emergency activity under the provisions of this section. Such written notification shall clearly and conspicuously state that it is a request to undertake an emergency activity pursuant to this section and shall include the following information:

(1) Description of the proposed action and the manner in which it is to be undertaken.

(2) Location map and plan of the proposed action.

(3) Any additional information which the Building Inspector may reasonably require to properly evaluate the proposed action, including the report of a licensed professional engineer.

B. Findings by Building Inspector. In authorizing an emergency activity the Building Inspector shall:

(1) Find that the proposed action constitutes a permissible emergency activity as described in this section.

(2) Determine that the proposed emergency activity can and will be carried out in a manner which will cause the least adverse impact on the public health, safety, or welfare and the least harm to natural resources, features, and systems.

(3) Where applicable, coordinate with and consider the comments of the Town Trustees or their authorized representatives.

(4) Determine that (i) the building or structure in question is in imminent peril of incurring major structural damage as a result of flooding or erosion, and the proposed emergency activity is necessary to prevent such damage, or (ii) the building or structure has already incurred major structural damage because of flooding or erosion, and the proposed emergency activity is necessary to repair such damage or to prevent a structural failure of all or part of the building or structure. In making this determination, the Building Inspector may consult the Town Engineer or the Town Fire Marshal and may require the applicant to provide an evaluation and/or certification from a licensed professional engineer.

C. Determination of Building Inspector. The Building Inspector shall, in writing, authorize or refuse to authorize a proposed emergency activity within five business days of his receipt of the notification (including all required information) described in Subsection A hereof. If the Building Inspector authorizes the proposed activity, his authorization shall specify the following:

(1) Description of the emergency activity for which the authorization is issued.

(2) Address and location of the property where the emergency activity is to be conducted.

(3) Name and address of the person or persons authorized to conduct the emergency activity.

(4) Period of validity of the authorization.

(5) Terms and conditions of the authorization.

D. Conditions to determination. The Building Inspector may authorize any emergency activity which is specified in this section and which is warranted by the circumstances. He may impose conditions commensurate with the emergency and reasonably related to the emergency activity which he authorizes. Such conditions may include, but shall not be limited to, the following:

(1) Removal of damaged buildings or structures or portions thereof, if those damaged buildings, structures, or parts thereof are or have become hazardous to human health or safety, or if said buildings, structures, or parts thereof present a threat of damage to other buildings or structures or to natural resources.

(2) Removal of any building or structure which has been constructed, erected, or placed, or any material which has been placed or deposited, without benefit of a building permit, natural resources special permit, or other required permit or approval.

(3) Restoration of any natural resource which has been or may be damaged by the emergency activity.

(4) The posting of an undertaking and security which the Building Inspector may reasonably determine to be necessary to ensure the completion of restoration work, the removal of structures, or the completion of other work required by his authorization.

E. Duration of emergency authorization. An authorization for the undertaking of emergency activity pursuant to this section shall be valid for a period of time not to exceed six months. Such authorization may be renewed for one additional period not to exceed three months, provided that: (i) the person seeking to undertake the emergency activity requests such renewal in writing, (ii) the activity thus far undertaken pursuant to the Building Inspector's authorization is in full compliance with the terms and conditions of that authorization, and (iii) the Building Inspector finds that an emergency situation as described in this section still exists. All emergency activity authorized under this section shall be completed prior to the expiration of said emergency authorization or the activity shall be deemed work subject to and requiring a natural resources special permit pursuant to the other provisions of this article.

F. Removal of geotextile tube or sandbag systems. Where the Building Inspector authorizes installation of a geotextile tube or sandbag system as an emergency activity pursuant to this section, his determination authorizing the work shall specify that the applicant will remove the geotextile tube or sandbag system in its entirety, and will complete any restoration work required by the Building Inspector's authorization, prior to the expiration of that authorization. In the event that the geotextile tube or sandbag system is not fully removed from the property in question by the expiration date of the authorization, or the required restoration work has not been completed by that date, the Town shall have the right to enter upon the property to remove the system and/or to perform the uncompleted restoration work, and shall have the right to use any security posted in connection therewith in order to undertake these tasks.

G. Exceptions to emergency power. Notwithstanding anything herein to the contrary, the provisions of this section shall not allow the Building Inspector to authorize the following activities:

(1) Repair, reconstruction, or alteration of existing coastal erosion structures located within Coastal Erosion Overlay Zone 1 or 2.

(2) (Reserved)

§ 255-4-30 Wetland setbacks. [1]

[Added 12-18-1997 by L.L. No. 38-1997; amended 4-13-2007 by L.L. No. 14-2007]

The following minimum setbacks or other restrictions shall apply to all lots, lands, uses, activities, and structures within the Town. These setbacks or other restrictions shall apply whether or not the particular lot, land, use, activity, or structure requires a natural resources special permit or other permit or approval, but are subject to certain exceptions set forth in § 255-4-43 hereof and to the provisions of §§ 255-3-70 et seq. hereof relating to the Harbor Protection Overlay District.

A. Construction prohibited within wetlands. No building or other structure shall be erected, constructed, placed, enlarged or reconstructed on or within a wetland.

B. Sewage disposal devices. No sewage disposal device or structure shall be constructed, placed, or installed within 150 feet of the upland boundary of a wetland. (See also § 255-3-75B.)

C. All other structures. Except as set forth in § 255-4-43 hereof, no building or other structure shall be erected, constructed, placed, enlarged or installed within 100 feet of the upland boundary of a wetland.

D. Clearing. The clearing of vegetation or the establishment of turf, lawn, or landscaping shall not be undertaken within 50 feet of the upland boundary of a wetland.

[1] Editor's Note: Former § 255-4-30, Minimum setbacks, was repealed 12-18-1997 by L.L. No. 38-1997.

§ 255-4-32 through § 255-4-39. (Reserved) [1]

[1] Editor's Note: L.L. No. 12-18-1997, adopted 12-18-1997, repealed the following sections: § 255-4-32, Bluff (dune crest), as amended; § 255-4-34, Minimum wetland setbacks, as amended; and §§ 255-4-37 through 255-4-39, regarding relief and setbacks.

§ 255-4-40 Coastal setbacks, including bluff and dune crest setbacks.

[Added 12-18-1997 by L.L. No. 38-1997; amended 4-13-2007 by L.L. No. 14-2007; 4-7-2011 by L.L. No. 4-2011; 8-6-2015 by L.L. No. 30-2015]

The following minimum setbacks or other restrictions shall apply to all lots, lands, uses, activities, and structures within the Town. These setbacks or other restrictions shall apply whether or not the particular lot, land, use, activity, or structure requires a natural resources special permit or other permit or approval, but are subject to certain exceptions set forth in § 255-4-43 hereof.

A. Seaward face of bluff or dune. No building or other structure shall be erected, constructed, placed, enlarged or reconstructed on a bluff or seaward of the bluff line or dune crest.

B. Atlantic Ocean, generally. Along the Atlantic Ocean, no building or structure shall be erected, constructed, placed, enlarged or reconstructed within 100 feet of the bluff line or dune crest or, where no bluff line or dune crest exists, within 100 feet of the landward boundary of the beach; provided, however, that the oceanfront areas described in Subsections C and D below shall be governed by the provisions of those subsections.

C. Atlantic Ocean; South side of Montauk Highway, Montauk (from Hither Hills State Park to Montauk Beach Property Owners' Association, Inc.) For certain properties hereinafter defined, due to the unusual geologic conditions existing thereon, including the presence of a predominately steep and vegetated bluff rising immediately from the base of the ocean beach, the required setback shall be 125 feet and shall be measured from the base of bluff (rather than the bluff line) on properties lying on the south side of the Old Montauk Highway between the easterly boundary of Hither Hills State Park (SCTM #0300-086.00-02.00-005.000) and the westerly boundary of the reservation property of the Montauk Beach Property Owners' Association, Inc. (SCTM #0300-067.00-04.00-034.000). In addition, in calculating "lot area" as the term is defined in this chapter for the properties lying within the area specified herein only, "lot area" as the term is defined in this chapter for the properties lying within the area specified herein only, "lot area" shall be calculated excluding the area seaward of the base of bluff rather than the area seaward to the bluff line or primary dune crest as the same are defined in this chapter.

[Amended 2-7-2019 by L.L. No. 5-2019]

D. Atlantic Ocean, eastern Montauk. Along the Atlantic Ocean, on all lands lying east of the eastern boundary of Map No. 174, Montauk, no building or other structure shall be erected, constructed, placed, enlarged or reconstructed within 150 feet of the bluff line or dune crest or, where no bluff line or dune crest exists, within 150 feet of the landward boundary of the beach.

E. Outer bays and harbors. Along the shorelines of Northwest Harbor, Gardiner's Bay, Napeague Bay, Fort Pond Bay, and Block Island Sound, no building or other structure shall be erected, constructed, placed, enlarged or reconstructed within the following distances of the bluff line or dune crest or, where no bluff line or dune crest exists, within the following distances of the landward boundary of the beach:

(1) On lots having a lot area of less than 30,000 square feet: 75 feet.

(2) On lots having a lot area of less than 80,000 but greater than or equal to 30,000 square feet: 100 feet.

(3) On lots having a lot area of 80,000 square feet or more: 150 feet.

(4) Notwithstanding the foregoing, on lots having a lot area of less than 80,000 square feet, for an addition to a legally preexisting structure that is situated landward of the existing structure, the required setback shall be 50 feet.

F. Inner harbors. Along the shoreline of Northwest Creek, Three Mile Harbor, Hog Creek, Accabonac Creek, Napeague Harbor, Great Pond (Lake Montauk) and the tributaries thereto, no building or other structure shall be erected, constructed, placed, enlarged or reconstructed within the following distances of the bluff line or dune crest or, where no bluff line or dune crest exists, within the following distances of the landward boundary of the beach:

(1) On lots having a lot area of less than 40,000 square feet: 50 feet.

(2) On lots having a lot area of 40,000 square feet or more: 100 feet.

G. Clearing. On properties where the setback is measured from the bluff line or dune crest, the clearing of vegetation or the establishment of turf, lawn or landscaping shall not be undertaken within 50 feet of the bluff line or dune crest or, where no bluff line or dune crest exists, the landward boundary of the beach.

§ 255-4-43 Exceptions to setbacks.

[Added 12-18-1997 by L.L. No. 38-1997; amended 2-10-1998 by L.L. No. 6-1998; 4-13-2007 by L.L. No. 14-2007]

The following structures, uses, and activities shall not be required to conform to the minimum setbacks from natural features or other prohibitions which are specified in this article, to the extent set forth below:

A. Coastal structures. The wetland, bluff line, and dune crest setbacks contained in §§ 255-4-30 and 255-4-40 hereof shall not apply to any coastal structure for which a natural resources special permit is issued pursuant to Article V hereof.

B. Pervious residential driveways. The wetland setbacks contained in § 255-4-30 hereof shall not apply to a pervious driveway or walkway serving residential property. Any such driveway or walkway shall, however, be set back as great a distance as practicable from the upland boundary of all wetlands.

C. Subdivision access. The wetland setbacks contained in § 255-4-30 hereof shall not apply to a street or common driveway serving lots in a subdivision approved by the Planning Board, provided that the Planning Board makes an express finding in its resolution approving the subdivision that, pursuant to this subsection, there is no feasible way to provide the lots served by the street or common driveway with suitable access if the wetland setbacks contained in § 255-4-30 hereof are required to be met, and provided further that a natural resources special permit is obtained for the street or common driveway pursuant to Article V hereof. Wherever such setback relief is granted by the Planning Board, it shall be the minimum relief necessary to provide safe and reasonable access to the lots in question.

D. Marinas and other uses in the Waterfront District. The wetland setbacks contained in § 255-4-30 hereof shall not apply to any structure on a lot in the Waterfront (WF) Use District or to any structure which is part of a lawfully existing marina or recreational marina in any district, provided that the structure is either water-dependent in that it is used for the servicing of boats, the unloading of fish, or the like, or for some other reason cannot feasibly be located landward of the otherwise applicable setback line.

E. Reconstruction of nonconforming structures. The reconstruction of nonconforming buildings and structures shall be exempt from the setback requirements of this article only as set forth below:

(1) The reconstruction, as defined herein, of a nonconforming building or structure shall be exempt from compliance with the wetland setback requirements of § 255-4-30 hereof.

(2) The reconstruction, as defined herein, of a nonconforming building or structure shall only be exempt from compliance with the bluff line or dune crest setback requirements of § 255-4-40 hereof if such reconstruction is undertaken because of accidental damage or destruction, pursuant to and as described in § 255-1-42C(2) hereof.

F. Personal wireless service facilities. The wetland setbacks contained in § 255-4-30 hereof shall not apply to Tier One, Tier Two (a) or Tier Two (b) personal wireless service facilities, including but not limited to transmission equipment, antennas or antenna equipment. New towers, macro wireless facilities or applications which represent a substantial change, as the same are defined in § 255-1-20 of this chapter, shall not be deemed exempt from the wetland setbacks of § 255-4-30.

[Added 9-15-2022 by L.L. No. 24-2022]

§ 255-4-45 Multiple setbacks.

[Added 12-18-1997 by L.L. No. 38-1997]

Where a structure, activity or use is subject to one or more of the setbacks set forth in this article, it shall comply with each such applicable setback.

§ 255-4-70 Shoreline fencing.

[Added 12-18-2009 by L.L. No. 27-2009; amended 12-5-2013 by L.L. No. 12-2013]

§ 255-4-70.1 Purpose.

The Town of East Hampton and the Trustees of the Freeholders and Commonality of the Town of East Hampton (hereafter also known as the "permitting authority or authorities") recognize the potential benefits to beach renourishment by way of properly installed snow/sand or "shoreline fencing" upon our beaches. As a result, the Town hereby adopts standards for the installation of such fencing in order to allow oceanfront property owners to install such sand fencing upon or adjacent to their property for purposes of beach replenishment. Fences installed in strict compliance with the provisions of this section shall be exempt from the requirements of Chapter 255, Zoning, §§ 255-3-85 (Coastal Erosion Overlay District: Regulations); 255-4-40 (Coastal setbacks, including bluff and dune crest setbacks); and 255-5-50 (Natural resources special permit) of the Town Code of the Town of East Hampton.

§ 255-4-70.2 Installation and maintenance of shoreline fencing.

A. Sand fencing installed in strict compliance with the following criteria shall qualify for the issuance of a shoreline fence permit from the Department of Natural Resources and/or the Town Trustees and shall be exempt from the provisions of §§ 255-3-85B (Coastal Erosion Overlay District-Regulations, Regulation of erosion control structures); 255-4-40 (Coastal setbacks, including bluff and dune crest setbacks); and 255-5-50 (Natural resources special permit) of the Town Code of the Town of East Hampton:

(1) Shoreline fencing may be installed only for the purpose of building sand dunes by trapping windblown sand, the protection of the dune(s) and protection of existing or planted vegetation and for no other purpose.

(2) A shoreline fencing permit requires a fee of $75, to be paid to the Parks Department or Town Trustees, depending upon the jurisdictional area the fence is located in.

(a) Permits expire one year from date of issue. Subsequent restoration projects require a new application and permit.

(b) Planting of beach grass or other revegetation shall require a separate permit.

(3) Sand shoreline fencing shall meet the following standards:

(a) Fencing shall be constructed of untreated wood laths or slats constructed of spruce, pine, fir, locust, cedar or other wood of similar life and strength, connected to one another by five or more twisted wires, until such time as an alternative is available that is degradable and/or more environmentally sensitive, and shall be no greater than four feet in height.

(b) Fencing shall be supported by untreated wooden posts of not less than two inches by three inches in dimension, and at least six feet in length, unless other materials are approved by the permitting authority which posts shall be driven into the sand so that the top of the posts are no higher than the top of the fencing. Such posts shall be spaced no more than every 10 feet of fence length. In the event that materials other than wood are approved for posts, each such post shall be tagged with a unique identification number.

(c) Fencing shall be secured to the posts by no less than two heavy-duty (at least 150 pounds tensile strength), UV-resistant plastic zip ties.

(d) At least one section of sand fencing shall display the permit number issued by the Natural Resources Department or the Town Trustees after inspection and approval of the fence installation by Natural Resources or the Town Trustees.

(4) Shoreline fencing shall be installed in a zig-zag pattern as follows (see illustration, end of this chapter) unless otherwise approved by the Parks Department, Natural Resources Department, and Town Trustees and noted on the permit:

(a) A single row of shoreline fencing shall be installed at the toe of the most seaward dune, but in no event shall such fencing extend more than 10 feet seaward of either existing dune vegetation or the toe of such seaward dune, whichever is further seaward;

(b) Shoreline fencing shall be installed at an angle of at least 45º to the shoreline unless and until an alternative design is proven more effective or unless an alternate design has been approved by the permitting authority;

(c) Individual sections of fence shall be no longer than 10 feet in length and shall be spaced no less than seven feet apart from one another (see diagram);

(d) Notwithstanding the foregoing, fencing shall not interfere with wildlife nesting areas, recreational or emergency vehicular access or in a manner that impedes or restricts established common law and statutory rights of public access and use of public trust lands and waters.

(5) Maintenance of shoreline fencing. During the period in which such sand fencing is installed, it shall be maintained as follows:

(a) Broken or missing slats and/or posts shall be replaced and broken wires secured to avoid injury to passersby;

(b) All previously installed fencing, especially that exposed due to storm/weather event, whether still intact or debris upon the beach, will be removed at the expense of the applicant prior to granting of a permit for installation of any new fence, unless the permitting agency determines that such installed fencing or part thereof is in acceptable condition and is installed in a manner consistent with the provisions of this law, in which case such fence or part thereof deemed acceptable may be incorporated into the new application.

(c) Permit holders shall be responsible for any costs incurred by the permitting authority in the cleanup and/or removal of damaged or broken posts and/or fencing.

(d) Permit holders shall be responsible for any costs incurred by the permitting authority in the cleanup and/or removal of damaged or broken posts.

B. Fencing installed in a manner which does not comply with the specifications set forth herein and not otherwise approved by the permitting agency shall be subject to the requirements of §§ 255-3-85B (Coastal Erosion Overlay District: Regulations, Regulation of erosion control structures); 255-4-40 (Coastal setbacks, including bluff and dune crest setbacks); and 255-5-50 (Natural resources special permit) and all other applicable provisions of the Town Code.

C. Fencing installed in violation of this section, or which thereafter is not maintained in conformance with the requirements herein, shall be subject to the provisions of Article X, Enforcement, of this chapter.

§ 255-4-80 Interpretation.

[Amended 2-10-1998 by L.L. No. 6-1998; 4-13-2007 by L.L. No. 14-2007]

If the Building Inspector, in administering or enforcing any provision of this chapter, is in doubt as to the existence, location, boundary or extent of any natural feature, resource or system, including but not limited to those designated in § 255-4-12 hereof, he shall consult with the Natural Resources Director and/or Planning Director, who shall provide the Building Inspector with a written determination regarding the same. Where the Natural Resources Director or Planning Director informs the Building Inspector in writing as to the existence, location, boundary or extent of any such natural feature, resource or system, either in response to the Building Inspector's inquiry or without such an inquiry, this determination shall be binding upon the Building Inspector and the affected property owner for all purposes under this chapter, unless and until a different determination shall have been rendered by the Zoning Board of Appeals pursuant to the authority given it in Article VIII hereof.

§ 255-4-85 Subdivision of land. [1]

[Amended 4-13-2007 by L.L. No. 14-2007]

Notwithstanding any other provision of this Code to the contrary, except the provisions of § 255-4-43 hereof regarding access to subdivision lots, no property shall be subdivided so as to create any lot on which a principal building, structure, or use cannot be sited in compliance with all of the setback requirements contained in this article. This section shall not be construed to prevent the Planning Board from requiring setbacks of whatever greater size it deems reasonable and necessary in a particular subdivision application.

[1] Editor's Note: Former § 255-4-85, Properties of the Town Trustees, was repealed 12-18-1997 by L.L. No. 38-1997.

§ 255-4-90 (Reserved)

§ 255-4-95 Exempted activities.

[Amended 4-21-1989 by L.L. No. 2-1989; 12-18-1997 by L.L. No. 38-1997]

Nothing in this article shall be deemed to apply to:

A. Fishing, shellfishing, hunting and trapping which is otherwise legal and for which all necessary licenses and permits, including permission of the Trustees or other landowner, if required, shall have been obtained.

B. The demolition, removal or replacement of existing fuel tanks, fuel lines, fuel dispensers or other existing hazardous or toxic storage facilities, including necessary site work, required by Article 12 of the Suffolk County Sanitary Code, provided that the following conditions are satisfied:

(1) Approval has been obtained for such work from the Suffolk County Department of Health Services; and

(2) An application for a building permit has been reviewed by the Natural Resources Department and Office of Fire Prevention and a building permit has been issued incorporating the recommendations of those agencies pursuant to the provisions of § 255-11-88 on fuel tanks and fuel dispensers.

§ 255-4-100 Violations.

[Amended 12-18-1997 by L.L. No. 38-1997; 2-10-1998 by L.L. No. 6-1998; 9-4-1998 by L.L. No. 30-1998]

It shall be a violation of this chapter, subject to the provisions of Article X hereof, for any person to do any of the following:

A. Prohibited activity. To undertake or carry out a use or activity which is prohibited by this article.

B. Failure to obtain natural resources special permit. To undertake or carry out a use or activity for which a natural resources special permit is required by the provisions of this article without having first obtained said natural resources special permit.

C. Failure to obtain Trustee permit. To undertake or carry out a use or activity, for which the Town Trustees require their permission, on any watercourse, underwater land, wetland, beach, bluff or duneland owned by the Town Trustees without having first obtained such Trustee permission.

D. Violation of conditions of natural resources special permit. To violate or fail to comply with a condition or requirement of a natural resources special permit issued pursuant to this article.

E. Violation of Trustee permit. To violate or fail to comply with a condition or requirement of a Town Trustee permit issued for work on any watercourse, underwater land, wetland, beach, bluff or duneland owned by them.