[HISTORY: Adopted by the Town Board of the Town of Clayton 7-25-2012 by L.L. No. 1-2012. Amendments noted where applicable.]
This chapter will be known as the "Town of Clayton 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 Clayton to incorporate the policies and purposes contained in the Town of Clayton Local Waterfront Revitalization Program (LWRP) when reviewing applications for actions or direct agency actions within the Waterfront Revitalization Area (WRA), and to assure that such actions and direct actions by Town agencies are consistent with the LWRP policies and purposes.
It is the intention of the Town of Clayton that the preservation, enhancement and utilization of the unique waterfront of the Town take 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 chapter 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.
The substantive provisions of this chapter shall only apply when there is in existence a Town of Clayton Local Waterfront Revitalization Program which has been adopted in accordance with Article 42 of the Executive Law of the State of New York.
As used in this chapter, the following terms shall have the meanings indicated:
- Includes all the following, except "minor actions":
- A. Projects or physical activities, such as construction or any other activities that may affect natural, man-made or other resources in the WRA or the environment by changing the use, appearance or condition of any 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 waterfront resources or the environment; and
- D. Any combination of the above.
- Any board, agency, department, office, other body, or officer of the Town of Clayton.
- The action will fully comply with the LWRP policy standards, conditions and objectives 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.
- All conditions, circumstances and influences surrounding and affecting the development of living organisms or other resources in the waterfront area.
- LOCAL WATERFRONT REVITALIZATION PROGRAM or LWRP
- The Local Waterfront Revitalization Program of the Town of Clayton, 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 Clayton.
- MINOR ACTIONS
- Includes the following actions, which are not subject to review under this chapter:
- A. Maintenance or repair involving no substantial changes in an existing structure or facility;
- B. 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;
- C. Repaving or widening of existing paved highways not involving the addition of new travel lanes;
- D. Street openings and right-of-way openings for the purpose of repair or maintenance of existing utility facilities;
- E. 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;
- F. Granting of individual setback and lot line variances, except in relation to a regulated natural feature or a bulkhead or other shoreline defense structure or any activity within the CEHA;
- G. Minor temporary uses of land having negligible or no permanent impact on waterfront resources or the environment;
- H. Installation of traffic control devices on existing streets, roads and highways;
- I. Mapping of existing roads, streets, highways, natural resources, land uses and ownership patterns;
- J. 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;
- K. 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.
- L. Routine or continuing agency administration and management, not including new programs or major reordering of priorities that may affect the environment;
- M. 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;
- N. Collective bargaining activities;
- O. Investments by or on behalf of agencies or pension or retirement systems, or refinancing existing debt;
- P. Inspections and licensing activities relating to the qualifications of individuals or businesses to engage in their business or profession;
- Q. Purchase or sale of furnishings, equipment or supplies, including surplus government property, other than the following: land, radioactive material, pesticides, herbicides, storage of road de-icing substances, or other hazardous materials;
- R. Adoption of regulations, policies, procedures and local legislative decisions in connection with any action on this list;
- S. 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 chapter have been fulfilled;
- T. 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;
- U. Adoption of a moratorium on land development or construction;
- V. Interpreting an existing code, rule or regulation;
- W. Designation of local landmarks or their inclusion within historic districts;
- X. 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 chapter;
- Y. Local legislative decisions such as rezoning where the Town Board determines the action will not be approved.
- WATERFRONT 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 Clayton, as shown on the waterfront revitalization boundary area map on file in the office of the Secretary of State and as delineated in the Town and Village of Clayton Local Waterfront Revitalization Program (LWRP).
The Joint Town/Village of Clayton Planning Board (the Planning Board) shall be responsible for coordinating review of actions in the Town's waterfront 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.
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.
The Planning Board shall assist the Town Board in making applications for funding from state, federal, or other sources to finance projects under the LWRP.
The Planning Board 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.
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 in Subsection H herein. No action in the waterfront area shall be approved, funded or undertaken by that agency without such a determination.
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.
Planning Board review and recommendation.
After referral from an agency, the Planning Board 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.
The Planning Board 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 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.
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.
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. Only one WAF per action will be prepared. If the agencies cannot agree, the Town Board shall designate the consistency review agency.
Determination of consistency of proposed actions and variances.
Upon receipt of the Planning Board's recommendation, the agency shall consider whether the proposed action is consistent with the LWRP policy standards 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.
The Joint Town/Village of Clayton Zoning Board of Appeals (the Zoning Board of Appeals) is the designated agency for the determination of consistency for variance applications subject to this chapter. 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 chapter.
Where an EIS is being prepared or required, the draft EIS must identify applicable LWRP policies standards in Subsection H and include a discussion of the effects of the proposed action on such policy standards.
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.
Actions to be undertaken within the waterfront area shall be evaluated for consistency in accordance with the following LWRP policy standards, which are further explained and described in the Town and Village of Clayton 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 LWRP Section V, in making their consistency determination. The action must be consistent with the policies to:
Each agency 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 Clayton waterfront area, which is subject to review under this chapter, 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 chapter or any conditions imposed thereunder, the Zoning Enforcement Officer 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, Town Zoning Enforcement Officer and Police Department shall be responsible for enforcing this chapter.
A 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 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.
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 provisions of this chapter are severable. If any provision of this chapter is found invalid, such finding shall not affect the validity of this chapter as a whole or any part or provision hereof other than the provision so found to be invalid.