[HISTORY: Adopted by the Town Board of the Town of Kendall 11-14-1996 by L.L. No. 1-1996. Amendments noted where applicable.]
This chapter will be known as the "Town of Kendall Waterfront Consistency Review Law."
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.
The purpose of this chapter is to provide a framework for agencies of the Town of Kendall to consider the policies, purposes and common interests contained in the Local Waterfront Revitalization Program of the Towns of Kendall, Yates and Carlton 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.
It is the intention of the Town of Kendall 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.
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 Kendall 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.
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:
- A. 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:
- B. Agency planning and policy making activities that may affect the environment and commit the agency to a definite course of future decisions;
- C. Adoption of agency rules, regulations, and procedures including local laws, codes, ordinances, executive orders and resolutions that may affect the environment; and
- D. Any combination of the above.
- Any board, agency, department, office, other body, or officer of the Town of Kendall.
- Any person making an application or other request to an agency to provide funding or to grant approval or permit in connection with a proposed action.
- COASTAL AREA
- 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 Kendall, as shown on the coastal area map on file in the office of the Secretary of State and as delineated in the Kendall, Yates and Carlton LWRP.
- COASTAL ASSESSMENT FORM (CAF)
- The form, contained in Appendix A to this chapter, 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.
- DIRECT ACTIONS
- 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 policy making which commits an agency or the Town to a course of action.
- LOCAL WATERFRONT REVITALIZATION PROGRAM (LWRP)
- The Local Waterfront Revitalization Program of the Towns of Kendall, Yates and Carlton, 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.
Editor's Note: Appendix A is on file in the Town offices.
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 Town Board or the Zoning Board of Appeals (ZBA), as appropriate, prior to an agency or such Town Board approving, funding or undertaking the action, shall make a determination that it 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.
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 or outside 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 Town Board. All agencies, including the ZBA, shall also refer a copy of the CAF to the Town Board in the other two Towns participating in the LWRP. All referrals shall be made within 10 days of receipt of the completed CAF.
After referral from an agency, the Town Board shall consider whether the proposed action is consistent with the Kendall, Yates and Carlton LWRP policy standards and conditions set forth in Subsection G below. The Town 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 Town Board may solicit advisory opinions from other boards and departments in the Town, and from the Town Boards of the other two Towns participating in the LWRP. 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 Town Board shall proceed without such advisory opinions.
The Town Board shall make a written determination of consistency and forward it to the agency within 30 days following referral of the CAF from the agency, unless extended by mutual agreement of the Town 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 Town 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.
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 and referral to the Town Boards of the other two participating Town Boards for advisory opinions. Under no circumstances, however, shall the Town 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.
Consistency determinations by a Town Board or ZBA shall be made based upon the CAF, the Environmental Assessment Form (EAF), any advisory opinions received, and any other information considered relevant.
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.
Where it is determined that the action will not have a significant affect upon the environment, the Town Board or the ZBA shall nonetheless make a written determination of consistency.
After receipt of the consistency determination of the Town Board, the agency shall have the authority to impose conditions specified by the Town Board on an action to ensure it is conducted in accordance with this chapter.
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 Towns of Kendall, Yates and Carlton LWRP. In the case of direct actions by agencies, the Town Boards shall also consult with Section IV of the LWRP in making its consistency determination. The action shall be consistent with the policy to:
Revitalize deteriorated and underutilized waterfront areas through a mixture of uses (Policies 1, 1A, 1B and 1C);
Retain and preserve existing and promote new water dependent uses (Polices 2, 2A, 2B, 2C and 2D);
Ensure that development occurs where adequate public infrastructure is available (Policies 5, and 5A);
Streamline development permit procedures (Policy 6);
Protect significant and locally important fish and wildlife habitats from human disruption and chemical contamination (Policies 7, 7A, 7B, 7C, 7D and 8);
Maintain and expand recreational fishing opportunities (Policies 9, 9A and 9B);
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, 12, 13, 13A, 14, 15, 15A, 16, 17, and 17A);
Safeguard economic, social and environmental interests in the coastal area in which major actions are undertaken (Policy 18);
Maintain and improve public access to the shoreline and other water-related recreational facilities while protecting the environment (Policies 1B, 2, 2A, 2B, 9B, 19, 19A, 19B, 19C, 19D, 20, 20A, 21, 21A and 22);
Protect and restore historic and archeological resources (Policy 23);
Protect and upgrade local scenic resources (Policy 25);
Protect and conserve agricultural lands (Policy 26);
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 40);
Prevent ice management practices which could damage significant fish and wildlife and their habitat (Policy 28);
Protect surface and groundwater from direct and indirect discharge of pollutants and from overuse (Policies 30, 30A, 31, 32, 33, 34, 35, 36, 37, 37A and 38);
Perform dredging and dredge spoil disposal in a manner protective of natural resources (Policies 15, 15A and 35);
Handle and dispose hazardous wastes and effluent in a manner which will not adversely affect the environment (Policies 39, 39A and 40);
Protect air quality (Policy 41, 42, 43);
Preserve and protect freshwater wetlands (Policies 44 and 44A).
If the Town 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 Town Board or ZBA makes a written finding with respect to the proposed action that:
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;
The action would be undertaken in a manner which will minimize all adverse effects on such LWRP policy standards and conditions;
The action will advance one or more of the other LWRP policy standards and conditions; and
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 Board or ZBA shall maintain a file for each action which is the subject of a consistency determination, and shall make these files available for inspection upon request under the Freedom of Information Law.
The Town 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 Code Enforcement Officer has been presented with a written determination from a Town 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 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.
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 $500 for a conviction of a first offense and punishable by a fine not exceeding $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 violation.
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 their jurisdiction. Any civil penalty shall be in addition to and not in lieu of any criminal prosecution and penalty.