[HISTORY: Adopted by the Town Board of the Town of Delaware 8-18-1999 by L.L. No. 3-1999. Amendments noted where applicable.]
This chapter shall be known as the "Town of Delaware Waterfront Consistency Review Law."
This chapter is adopted under the authority of the Municipal Home Rule Law and the Waterfront Revitalization of Coastal Areas and Inland Waterways Act of the State of New York (Article 42 of the Executive Law).
The purpose of this chapter is to provide a framework for agencies of the Town of Delaware to consider the policies and purposes contained in the Town of Delaware Local Waterfront Revitalization Program when reviewing applications for actions or direct agency actions located in the coastal area and to assure that such actions and direct actions are consistent with the said policies and purposes.
It is the intention of the Town of Delaware that the preservation, enhancement and utilization of the natural and man-made resources of the unique coastal area of the Town take place in a coordinated and comprehensive manner to ensure a proper balance between natural resources and the need to accommodate population growth, economic development, and attract the traveling public. Accordingly, this chapter is intended to achieve such a balance, permitting the beneficial use of coastal resources while preventing loss of living estuarine resources and wildlife; diminution of open space areas or public accesses to the waterfront; erosion of shoreline; impairment of scenic beauty; losses due to flooding, erosion and sedimentation; or permanent adverse changes to ecological systems.
The substantive provisions of this chapter shall only apply while there is in existence a Town of Delaware Local Waterfront Revitalization Program which has been adopted in accordance with Article 42 of the Executive Law of the State of New York.
- Either Type I or unlisted actions as defined in SEQRA regulations (6 NYCRR 617.2), which are undertaken by an agency and which include:
- 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, that:
- 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.
- D. Any proposed action within the Town's local waterfront revitalization area that requires site plan review and approval by the Town of Delaware.
- E. Any combinations of the above.
- Any board, agency, department, office, other body or officer of the Town of Delaware.
- COASTAL AREA
- That portion of New York State coastal waters and adjacent shorelands, as defined in Article 42 of the Executive Law, which is located within the boundaries of the Town of Delaware, as shown on the Coastal Area Map on file in the office of the Secretary of State and as delineated in the Town of Delaware Local Waterfront Revitalization Program.
- COASTAL ASSESSMENT FORM (CAF)
- The form used by an agency to assist it in determining the consistency of an action with the Town of Delaware Local Waterfront Revitalization Program.
- Means the action will fully comply with the LWRP policy standards and conditions and, whenever practicable, will advance one or more of them.
- DIRECT ACTIONS
- 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.
- LOCAL WATERFRONT REVITALIZATION PROGRAM (LWRP)
- The Local Waterfront Revitalization Program of the Town of Delaware, approved by the Secretary of State pursuant to the Waterfront Revitalization of Coastal Areas and Inland Waterways Act (Executive Law, Article 42), a copy of which is on file in the office of the Clerk of the Town of Delaware.
- TOWN OF DELAWARE LOCAL WATERFRONT REVITALIZATION PROGRAM (LWRP) ADVISORY COMMITTEE
- The LWRP Advisory Committee of the Town of Delaware.
The LWRP Advisory Committee is authorized to review and make recommendations to appropriate agencies regarding the consistency of proposed actions with the Town of Delaware Local Waterfront Revitalization Program policy standards and conditions.
Whenever a proposed action is located within the Town's coastal area, an agency shall, prior to approving, funding or undertaking the action, make a determination that it is consistent with the LWRP policy standards and conditions set forth in Subsection J herein.
Each agency of the Town shall be responsible for making its own consistency determinations.
Where more than one local agency is involved in reviewing a proposed action, the "lead agency" (as that term is defined in the SEQRA regulations) shall be responsible for making the determination that the proposed action is consistent with the LWRP policy standards and conditions set forth in Subsection J herein.
The consistency determination process required by this chapter shall be coordinated with the environmental review process set forth in SEQRA to the greatest extent possible.
Whenever an agency receives an application for approval or funding of an action or as early as possible in the agency's formulation of a direct action to be located in the coastal area, the applicant or, in the case of a direct action, the agency shall prepare a coastal assessment form (CAF) to assist with the consistency review of the proposed action.
The agency shall refer a copy of the completed CAF to the LWRP Advisory Committee within 10 days of its submission and, prior to making its determination, shall consider the recommendation of the LWRP Advisory Committee with reference to the consistency of the proposed action with the Town's Local Waterfront Revitalization Program.
After referral from an agency, the LWRP Advisory Committee shall consider whether the proposed action is consistent with the LWRP policy standards and conditions set forth in Subsection J herein. The LWRP Advisory Committee shall require the applicant to submit all completed applications, CAFs and any other information deemed to be necessary to its consistency review and recommendation.
The LWRP Advisory Committee shall render its written recommendation to the agency within 30 days following referral of the CAF from the agency, unless extended by mutual agreement of the LWRP Advisory Committee and the applicant or, in the case of direct action, the agency. The recommendation shall indicate whether, in the opinion of the LWRP Advisory Committee, the proposed action is consistent with or inconsistent with one or more of the LWRP policy standards or conditions and shall elaborate in writing the basis for its opinion.
The LWRP Advisory Committee shall, along with its consistency recommendation, make any suggestions to the agency concerning modification of the proposed action to make it consistent with LWRP policy standards and conditions or to greater advance them.
In the event that the LWRP Advisory Committee's recommendation is not forthcoming within the specified time, the referring agency shall make its decision without the benefit of the LWRP Advisory Committee's recommendation.
The agency shall make the determination of consistency based on the CAF, SEQRA documents, the application and project documentation, the LWRP Advisory Committee recommendation, and relevant recommendations from other agencies, and such other information as is deemed to be necessary in its determination. The agency shall issue its determination within 30 days following receipt of the LWRP Advisory Committee's recommendation and submission by the applicant of any additional required information. The agency shall have the authority, in its finding of consistency, to impose practicable and reasonable conditions on an action to ensure that it is carried out in accordance with this chapter.
Actions to be undertaken within the Town of Delaware Coastal Area shall be evaluated for consistency in accordance with the following LWRP policy standards and conditions, which are derived from and further explained and described in Section III of the Town of Delaware LWRP, a copy of which is on file in the Town Clerk's office and available for inspection during normal business hours. Agencies which undertake direct actions shall also consult with Section IV of the LWRP in making their consistency determination. The action shall be consistent with the policy to:
Revitalize the deteriorated and under-utilized waterfront areas of the Town of Delaware (Policy 1).
Facilitate the siting of water-dependent uses and facilities on or adjacent to the coastal waters of the Town of Delaware (Policy 2).
Ensure that development occurs where adequate public infrastructure is available to reduce health and pollution hazards (Policy 3).
Protect, preserve and, where practicable, restore significant and locally important fish and wildlife habitats so as to maintain their viability as habitats and prevent human disruption and chemical contamination (Policy 4).
Minimize flooding hazards through nonstructural means, carefully selected, long-term structural measures, and appropriate siting of structures (Policy 5).
Minimize erosion damage to natural resources and damage to property from erosion by directing development away from steeply sloped areas and through nonstructural measures whenever possible (Policy 6).
Maintain and improve public access to the shoreline and the water-related recreational facilities while protecting the environment (Policy 7).
Protect and restore historic and archeological resources (Policy 8).
Protect and improve the visual quality of the waterfront area (Policy 9).
Conserve and protect agricultural lands in the waterfront area (Policy 10).
Municipal, industrial and commercial discharge of effluent and pollutants into water bodies will conform to state and national water quality standards (Policy 11).
The Town of Delaware's Local Waterfront Revitalization Program will be considered while reviewing state water body classifications and while modifying water quality standards (Policy 12).
Best management practices will be used to ensure control of stormwater runoff, combined sewer outflows, and nonpoint discharge of excess nutrients, organics and eroded soils into state waterways (Policy 13).
Encourage use of innovative sanitary waste systems where existing Town systems are not available (Policy 14).
Ensure that excavation, dredging and dredge spoil disposal are undertaken in such a manner that protects fish and wildlife habitats, scenic resources, natural protective features, important agricultural lands, and does not cause an increase in the erosion of such land (Policy 15).
Preserve and protect wetlands and the benefits derived from these resources (Policy 16).
Continue to support the goals of the Upper Delaware River Management Plan by enforcing the Town Zoning Law and updating its provisions as necessary to address changing development concerns (Policy 17).
Involve the public and local business owners in all revitalization efforts, particularly in any downtown improvement where such participation is essential to success (Policy 18).
If the agency determines that the action would not be consistent with one or more of the LWRP policy standards and conditions, such action shall not be undertaken unless the agency makes a written finding with respect to the proposed action that:
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.
The action will result in an overriding Town, regional or statewide public benefit.
Each agency shall maintain a file for each action made the subject of a consistency determination, including any recommendations received from the LWRP Advisory Committee. Such files shall be made available for public inspection upon request.
The Town Zoning Enforcement Officer shall be responsible for enforcing this chapter. No work or activity on a project in the coastal area which is subject to review under this chapter shall be commenced or undertaken until the Zoning Enforcement Officer has been presented with a written determination from an agency that the action is consistent with the Town's LWRP policy standards and conditions. In the event that an activity is not being performed in accordance with this chapter or any conditions imposed thereunder, the Zoning Enforcement Officer shall issue a stop-work order, and all work shall immediately cease. No further work or activity shall be undertaken on the project so long as a stop-work order is in effect.
A person who violates any of the provisions of or who fails to comply with any conditions imposed by this chapter shall have committed a violation, punishable by a fine not exceeding $500 for a conviction of a first offense and punishable by a fine of $1,000 for a conviction of a second or subsequent offense. For the purpose of conferring jurisdiction upon courts and judicial officers, each week of continuing violation shall constitute a separate additional offense.
The Town Attorney is authorized and directed to institute any and all actions and proceedings necessary to enforce this chapter. Any civil penalty shall be in addition to and not in lieu of any criminal prosecution and penalty. The Town may also enforce this chapter by injunction or other civil proceeding.