[Adopted 3-4-2015 by L.L.
No. 1-2015]
This Part 1 will be known as the "Town of Penfield Waterfront
Consistency Review Law."
A.Â
This Part 1 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.Â
The purpose of this Part 1 is to provide a framework for agencies
of the Town of Penfield to incorporate the policies and purposes contained
in the Town of Penfield Local Waterfront Revitalization Program (LWRP)
when reviewing applications for actions or direct agency actions within
the waterfront revitalization area boundary; and to assure that such
actions and direct actions by Town agencies are consistent with the
LWRP policies and purposes.
C.Â
It is the intention of the Town of Penfield that the preservation,
enhancement and utilization of the unique waterfront area of the Town
takes place in a coordinated and comprehensive manner to ensure a
proper balance between protection of natural resources and the need
to accommodate limited population growth and economic development.
Accordingly, this Part 1 is intended to achieve such a balance, permitting
the beneficial use of waterfront resources while preventing loss and
degradation of living waterfront resources and wildlife; diminution
of open space areas or public access to the waterfront; disruption
of natural waterfront processes; impairment of scenic, cultural or
historical resources; losses due to flooding, erosion and sedimentation;
impairment of water quality; or permanent adverse changes to ecological
systems.
As used in this Part 1, the following terms shall have the meanings
indicated:
Include all the following, except minor actions:
Projects or physical activities, such as construction or any
other activities that may affect natural, man-made or other resources
in the waterfront area or the environment by changing the use, appearance
or condition of any resource or structure, that:
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 waterfront resources or the environment; and
Any combination of the above.
Any board, agency, department, office, other body, or officer
of the Town of Penfield.
The action will fully comply with the LWRP policy standards,
conditions and objectives 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.
All conditions, circumstances and influences surrounding
and affecting the development of living organisms or other resources
in the waterfront area.
A form used in determining the environmental significance
or nonsignificance of actions in accordance with the State Environmental
Quality Review Act (SEQRA).
The Local Waterfront Revitalization Program of the Town of
Penfield, 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 Penfield.
Include the following actions, which are not subject to review
under this Part 1:
Maintenance or repair involving no substantial changes in an
existing structure or facility;
Replacement, rehabilitation or reconstruction of a structure
or facility, in kind, on the same site, including upgrading buildings
to meet building or fire codes, except for structures in areas designated
by the coastal erosion hazard area (CEHA) law where structures may
not be replaced, rehabilitated or reconstructed without a permit;
Repaving or widening of existing paved highways not involving
the addition of new travel lanes;
Street openings and right-of-way openings for the purpose of
repair or maintenance of existing utility facilities;
Maintenance of existing landscaping or natural growth, except
where threatened or endangered species of plants or animals are affected,
or within significant coastal fish and wildlife habitat areas;
Granting of individual setback and lot line variances, except
in relation to a regulated natural feature, a bulkhead or other shoreline
defense structure;
Minor temporary uses of land having negligible or no permanent
impact on waterfront resources or the environment;
Installation of traffic control devices on existing streets,
roads and highways;
Mapping of existing roads, streets, highways, natural resources,
land uses and ownership patterns;
Information collection, including basic data collection and
research, water quality and pollution studies, traffic counts, engineering
studies, surveys, subsurface investigations and soils studies that
do not commit the agency to undertake, fund or approve any action;
Official acts of a ministerial nature involving no exercise
of discretion, including building where issuance is predicated solely
on the applicant's compliance or noncompliance with the relevant local
building code;
Routine or continuing agency administration and management,
not including new programs or major reordering of priorities that
may affect the environment;
Conducting concurrent environmental, engineering, economic,
feasibility and other studies and preliminary planning and budgetary
processes necessary to the formulation of a proposal for action, provided
those activities do not commit the agency to commence, engage in or
approve such action;
Collective bargaining activities;
Investments by or on behalf of agencies or pension or retirement
systems, or refinancing existing debt;
Inspections and licensing activities relating to the qualifications
of individuals or businesses to engage in their business or profession;
Purchase or sale of furnishings, equipment or supplies, including
surplus government property, other than the following: land, radioactive
material, pesticides, herbicides, storage of road deicing substances,
or other hazardous materials;
Adoption of regulations, policies, procedures and local legislative
decisions in connection with any action on this list;
Engaging in review of any part of an application to determine
compliance with technical requirements, provided that no such determination
entitles or permits the project sponsor to commence the action unless
and until all requirements of this Part 1 have been fulfilled;
Civil or criminal enforcement proceedings, whether administrative
or judicial, including a particular course of action specifically
required to be undertaken pursuant to a judgment or order, or the
exercise of prosecutorial discretion;
Adoption of a moratorium on land development or construction;
Interpreting an existing code, rule or regulation;
Designation of local landmarks or their inclusion within historic
districts;
Emergency actions that are immediately necessary on a limited
and temporary basis for the protection or preservation of life, health,
property or natural resources, provided that such actions are directly
related to the emergency and are performed to cause the least change
or disturbance, practicable under the circumstances, to waterfront
resources or the environment. Any decision to fund, approve or directly
undertake other activities after the emergency has expired is fully
subject to the review procedures of this Part 1;
Local legislative decisions such as rezoning where the Town
Board determines the action will not be approved.
The form, a sample of which is appended to this Part 1, used
by an agency to assist in determining the consistency of an action
with the Local Waterfront Revitalization Program.
The waterfront revitalization area boundary as delineated
in the Town of Penfield Local Waterfront Revitalization Program.
A.Â
The Town
of Penfield Planning Department shall be responsible for coordinating
review of actions in the Town's waterfront revitalization area for
consistency with the LWRP, and will advise, assist and make consistency
recommendations to other Town agencies in the implementation of the
LWRP, its policies and projects, including physical, legislative,
regulatory, administrative and other actions included in the program.
B.Â
The Planning
Board shall coordinate with the New York State Department of State
regarding consistency review of actions by federal agencies and with
state agencies regarding consistency review of their actions.
C.Â
The Planning
Department shall assist the Town Board in making applications for
funding from state, federal, or other sources to finance projects
under the LWRP.
D.Â
The Planning
Department shall perform other functions regarding the waterfront
area and direct such actions or projects as the Town Board may deem
appropriate to implement the LWRP.
A.Â
Whenever a proposed action is located within the Town's waterfront area, each Town agency shall, prior to approving, funding or undertaking the action, make a determination that it is consistent with the LWRP policy standards summarized in Subsection H herein. No action in the waterfront area shall be approved, funded or undertaken by that agency without such a determination.
B.Â
Whenever a Town 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 waterfront area, the agency
shall refer a copy of the completed WAF to the Planning Board within
10 days of its receipt and, prior to making its determination, shall
consider the recommendation of the Planning Board with reference to
the consistency of the proposed action.
C.Â
After referral from an agency, the Planning Board (or the Town Board in the case of the LaSalle's Landing District) shall consider whether the proposed action is consistent with the LWRP policy standards set forth in Subsection H herein. The Planning Board shall require the applicant to submit all completed applications, WAFs, EAFs, and any other information deemed necessary to its consistency recommendation.
(1)Â
The
Planning Board (or the Town Board in the case of the LaSalle's Landing
District) shall render its written recommendation to the agency within
30 days following referral of the WAF from the agency, unless extended
by mutual agreement of the Planning Board and the applicant or, in
the case of a direct action, the agency. The Planning Board’s
recommendation shall indicate whether the proposed action is consistent
with or inconsistent with one or more of the LWRP policy standards
and shall elaborate in writing the basis for its opinion. The Planning
Board (or the Town Board in the case of the LaSalle's Landing District)
shall, along with a consistency recommendation, make any suggestions
to the agency concerning modification of the proposed action, including
the imposition of conditions, to make it consistent with LWRP policy
standards or to greater advance them.
(2)Â
In
the event that the Planning Board’s recommendation is not forthcoming
within the specified time, the agency shall make its consistency decision
without the benefit of the Planning Board’s recommendation.
(3)Â
In
the event that an action requires approval by the Planning Board or
the Town Board, the consistency review shall be included in the Planning
Board's or Town Board's review and a written consistency determination
shall be made prior to any decision on the action before the Board
having jurisdiction.
D.Â
If an action requires approval of more than one Town agency, decision-making
will be coordinated between the agencies to determine which agency
will conduct the final consistency review, and that agency will thereafter
act as designated consistency review agency for the specific action
being reviewed. Only one WAF per action will be prepared. If the agencies
cannot agree, the Town Board shall designate the consistency review
agency.
E.Â
Determination of consistency.
(1)Â
Upon receipt of the Planning Board’s recommendation, the agency shall consider whether the proposed action is consistent with the LWRP policy standards summarized in Subsection H herein. The agency shall consider the consistency recommendation of the Planning Board, the WAF and other relevant information in making its written determination of consistency. No approval or decision shall be rendered for an action in the waterfront area without a written determination of consistency having first been rendered by a Town agency.
(2)Â
The
Zoning Board of Appeals is the designated agency for the determination
of consistency for variance applications subject to this Part 1. The
Zoning Board of Appeals shall consider the written consistency recommendation
of the Planning Board in the event and at the time it makes a decision
to grant such a variance and shall impose appropriate conditions on
the variance to make the activity consistent with the objectives of
this Part 1. The Town Board shall have jurisdiction of all such matters
within the LaSalle's Landing District.
F.Â
Where an EIS is being prepared or required, the draft EIS must identify applicable LWRP policies standards in Subsection H and include a thorough discussion of the effects of the proposed action on such policy standards.
G.Â
In the event the Planning Board’s recommendation is that the
action is inconsistent with the LWRP, and the agency makes a contrary
determination of consistency, the agency shall elaborate in writing
the basis for its disagreement with the recommendation and state the
manner and extent to which the action is consistent with the LWRP
policy standards.
H.Â
Actions to be undertaken within the waterfront area shall be evaluated
for consistency in accordance with the following summary of LWRP policy
standards, which are derived from and further explained and described
in Section III (Policies) of the Town of Penfield 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
must also consult with Section IV (Proposed Uses and Projects) in
making their consistency determination. The action must be consistent
with the policies to:
(1)Â
Policy
1: foster a pattern of development in the waterfront area that enhances
the community character, preserves open space, makes efficient use
of infrastructure, makes beneficial use of a waterfront location,
and minimizes adverse effects of development.
(2)Â
Policy
2: preserve historic resources of the waterfront area.
(3)Â
Policy
3: enhance visual quality and protect scenic resources throughout
the waterfront area.
(4)Â
Policy
4: minimize loss of life, structure, and natural resources from flooding
and erosion.
(5)Â
Policy
5: protect and improve water quality and supply.
(6)Â
Policy
6: protect and restore the quality and function of the ecosystem.
(7)Â
Policy
7: protect and improve air quality in the waterfront area.
(8)Â
Policy
8: minimize environmental degradation in the waterfront area from
solid waste and hazardous substances and waste.
(9)Â
Policy
9: provide for public access to, and recreational use of, the waterway,
public lands, and public resources of the waterfront area.
(10)Â
Policy
10: protect water-dependent and water-enhanced uses and promote siting
of these uses in suitable locations.
(11)Â
Policy
11: promote sustainable use of living aquatic resources.
(12)Â
Policy
12: protect agricultural lands.
(13)Â
Policy
13: promote appropriate use and development of energy and mineral
resources.
I.Â
The Town shall maintain a file for each action made the subject of
a consistency determination, including any recommendations received
from the Planning Board. Such files shall be made available for public
inspection upon request.
No action within the Penfield waterfront area which is subject
to review under this Part 1 shall proceed until a written determination
has been issued from a Town agency that the action is consistent with
the Town's LWRP policy standards. In the event that an activity is
being performed in violation of this Part 1 or any conditions imposed
thereunder, the Building Inspector or any other authorized official
of the Town 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. The Town Attorney and Code
Enforcement Officer shall be responsible for enforcing this Part 1.
A.Â
A person who violates any of the provisions of, or who fails to comply
with any condition imposed by, this Part 1 shall have committed a
violation, punishable by a fine not exceeding $250 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 violation.
B.Â
The Town Attorney is authorized and directed to institute any and
all actions and proceedings necessary to enforce this Part 1. Any
civil penalty shall be in addition to and not in lieu of any criminal
prosecution and penalty.
This Part 1 shall supersede and repeal any previous local regulations
regarding Town of Penfield waterfront consistency review.
