[HISTORY: Adopted by the Town Board of the Town of Marlborough 5-11-2020 by L.L. No. 3-2020. Amendments noted where applicable.]
GENERAL REFERENCES
Harbor Management — See Ch. 98.
This chapter will be known and may be cited as the "Town of
Marlborough Waterfront Revitalization Program (LWRP) Consistency Review
Law."
A.
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).
B.
This chapter is intended to provide a framework for the agencies
of the Town of Marlborough to incorporate the policies and purposes
contained in the Town of Marlborough Local Waterfront Revitalization
Program (LWRP) when reviewing applications for actions or direct agency
actions located within the waterfront area; and to assure that such
actions and direct actions undertaken by town agencies are consistent
with the LWRP policies and purposes.
C.
It is the intention of the Town of Marlborough that the preservation,
enhancement, and utilization of the unique waterfront area of the
Town of Marlborough occur in a coordinated and comprehensive manner
to ensure a proper balance between the protection of natural resources
and the need to accommodate growth. Accordingly, this chapter is intended
to achieve such a balance, permitting the beneficial use of waterfront
resources while preventing degradation or loss 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 or historical resources; losses due to flooding, erosion,
and sedimentation; impairment of water quality or permanent adverse
changes to ecological systems.
D.
The substantive provisions of this chapter shall only apply when
there is in existence a Town of Marlborough Local Waterfront Revitalization
Program which has been adopted in accordance with Article 42 of the
Executive Law of the State of New York.
A.
Consistency provision for under coordinated review. All proposed
Type I actions and all Unlisted Actions where a lead agency of the
Town of Marlborough has been designated under coordinated review as
defined by the State Environmental Quality Review Act (SEQRA) within
the Waterfront Revitalization Area will be subject to review by the
designated lead agency for consistency review as set forth herein.
B.
Consistency provision for uncoordinated review. All proposed Unlisted
Actions where a lead agency has been not been designated under coordinated
review as defined by the State Environmental Quality Review Act (SEQRA)
within the Waterfront Revitalization Area will be subject to review
for consistency review as set forth herein. Only one local agency
shall be required to make a consistency review determination in the
order as set forth below:
(1)
Town Board shall be responsible for consistency review of any Town
Board action.
(2)
Planning Board shall be responsible for consistency review of any
Planning Board action.
(3)
Zoning Board of Appeals shall be responsible for consistency review
of any Zoning Board of Appeals action.
(4)
Any other local agency shall be responsible for consistency review
of its action.
C.
Local review of proposed state and federal actions. Any proposed
state and federal actions within the Town of Marlborough's Waterfront
Revitalization Area are subject to review in accordance with the guidelines
established by the New York State Department of State.
As used in this chapter, the following terms shall have the
meanings indicated:
Include all the following, except minor actions:
Projects or physical activities, such as construction or other
activities that may affect natural, or man-made, or other resources
in the waterfront area, or the environment by changing the use, appearance
or condition of any natural resource or structure, that are directly
undertaken by an agency; involve funding by an agency; or require
one or more new or modified approvals from an agency or agencies;
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 the environment; and
Any combination of the above.
Any board, agency, department, office, other body, or officer
of the Town of Marlborough.
The Building Inspector and/or Code Enforcement Officer of
the Town of Marlborough.
The action will fully comply with the LWRP policy standards,
conditions and objections 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.
The Local Waterfront Revitalization Program of the Town of
Marlborough, approved by the Secretary of State pursuant to the Waterfront
Revitalization and 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 Marlborough.
Includes the following actions, which are not subject to
review under this law:
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 local law where structures may not be replaced, rehabilitated or
reconstructed without a permit;
Repaving 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;
Granting of individual setback and lot line variances, except
in relation to a regulated natural feature;
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 Type I
or unlisted action;
Official acts of a ministerial nature involving no exercise
of discretion, including building permits and historic preservation
permits where issuance is predicated solely on the applicant's
compliance or noncompliance with the relevant local building or preservation
code(s);
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, 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 chapter 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
district;
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;
Local legislative decisions such as rezoning where the Town
Board determines the action will not be approved.
The waterfront revitalization area located within the boundaries
of the Town of Marlborough and delineated and described in the Town's
Local Waterfront Revitalization Program.
The form, a sample of which is appended to this chapter,
used by an agency or other entity to assist in determining the consistency
of an action with the Town of Marlborough Local Waterfront Revitalization
Program.
A.
The Town Supervisor shall be responsible for overall management and
coordination of the LWRP. Town Supervisor may appoint a Waterfront
Revitalization Committee or may delegate this responsibility to another
existing committee of the Town as approved by the Town Board to assist
the Town Supervisor in performing these responsibilities. The Town
Supervisor, or the Waterfront Revitalization Committee, if appointed,
shall:
(1)
Inform the Town Board on implementation, priorities, work assignments,
timetables, and budgetary requirements of the LWRP.
(2)
Make applications for funding from state, federal, or other sources
to finance projects under the LWRP.
(3)
Coordinate and oversee liaison between Town agencies and departments,
to further implementation of the LWRP.
(4)
Prepare an annual report on progress achieved and problems encountered
in implementing the LWRP, and recommend actions necessary for further
implementation to the appropriate Town Board.
(5)
Perform other functions regarding the waterfront area and direct
such actions or projects as are necessary, or as the Town Board may
deem appropriate, to implement the LWRP.
B.
In order to foster a strong relationship and maintain an active liaison
among the agencies responsible for implementation of the LWRP, the
Town Supervisor shall schedule at least semiannually a LWRP coordinating
council/assembly, including but not limited to representatives of
the Town Board, Planning Board, Zoning Board of Appeals, Waterfront
Advisory Committee, and such other departments or individuals charged
with LWRP implementation.
A.
A Committee may be created and if so created shall be hereafter known
as the "Waterfront Revitalization Committee of the Town of Marlborough."
The Committee shall meet quarterly and shall advise the Town Board
on LWRP implementation and on policy, project and budget priorities,
as well as on amendments to the LWRP. The Committee may also perform
other functions regarding the waterfront area as the Town Board may
assign to it from time to time.
B.
The Town Board is hereby authorized to appoint five members to the
Committee, all of whom shall be residents of the Town of Marlborough.
Of the members of the Committee first appointed: one shall hold office
for a term of one year, one shall hold office for a term of two years,
one shall hold term for a term of three years, one shall hold office
for a term of four years, and one shall hold office for a term of
five years from and after the expiration of the terms of their predecessors
in office. Thereafter, all members shall be appointed for a term of
five years. Vacancies shall be filled by the Town Board by appointment
for the unexpired term. Members may be removed by the Town Board for
cause and after public hearing.
C.
The Town Board shall annually appoint one Committee member to serve
as Chairperson of the Committee. Upon failure of the Town Board to
appoint a Chairperson, the members of the Committee shall elect a
Chairperson.
D.
The Committee may employ such member as may be needed, as authorized
by the Town Board, and shall have the power to adopt rules of procedure
for the conduct of all business within its jurisdiction.
A.
Whenever a proposed action is located in the waterfront area each Town agency shall, prior to approving, funding or undertaking the action make a determination that it is consistent with the LWRP standards summarized in Subsection I, below. No action in the coastal/waterfront area subject to review under this chapter shall be approved, funded or undertaken by an agency without such a determination.
B.
The Town Supervisor, or appropriate Town board, agency or committee,
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 for 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 Town Supervisor will also coordinate with NYS
Department of State regarding consistency review for actions by state
or federal agencies.
C.
The Town Supervisor will assist each agency with preliminary evaluation
of actions in the waterfront area, and with preparation of a WAF.
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 waterfront area, the agency
shall refer to the Town Supervisor for preparation of a WAF, a sample
of which is appended to this chapter. The Town Supervisor will coordinate
their preliminary evaluation with permitting or other review by each
agency or the agencies considering an action.
D.
The Town Supervisor, or responsible Town board, agency or committee,
shall require the applicant to submit all completed applications,
EAFs, and any other information deemed necessary to its consistency
recommendation. The recommendation shall indicate whether, in the
opinion of the Town Supervisor, or responsible Town board, agency
or committee, the proposed action is consistent with or inconsistent
with one or more of the LWRP policy standards and objectives and shall
elaborate in writing the basis for its opinion. The Town Supervisor,
or responsible Town board, agency or committee shall, along with its
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 and objectives or
to greater advance them.
E.
If an action requires approval of more than one agency, decision
making will be coordinated between 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 Supervisor
shall designate the consistency review agency.
F.
Upon recommendation of the Town Supervisor, or responsible Town board, agency or committee, the agency shall consider whether the proposed action is consistent with the LWRP policy standards summarized in Subsection I, below. Prior to making its determination of consistency, the agency shall render a written determination of consistency based on the WAF, the Town Supervisor, or responsible Town board, agency or committee recommendation and such other information as is deemed necessary to make its determination. No approval or decision shall be rendered for an action in the waterfront area without a determination of consistency. The designated agency will make the final determination of consistency.
(1)
The Zoning Board of Appeals is the designated agency for the determination
of consistency for variance applications subject to this law. The
Zoning Board of Appeals shall consider the written consistency recommendation
of the Committee 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 law.
G.
Where an EIS is being prepared or required, the draft EIS must identify applicable LWRP policies and standards and include a discussion of the effects of the proposed action on such policy standards. No agency may make a final decision on an action that has been the subject of a final EIS and is located in the waterfront area until the agency has made a written finding regarding the consistency of the action with the local policy standards referred to in Subsection I, herein.
H.
In the event the Town Supervisor, or responsible Town board, agency
or committee'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 explain the manner and extent to which
the action is consistent with the LWRP policy standards.
I.
Actions to be undertaken within the waterfront area shall be evaluated
for consistency in accordance with the following summary of LWRP policies,
which are derived from and further explained and described in the
Town of Marlborough LWRP, a copy of which is on file in the Clerk's
office and available for inspection during normal business hours.
Agencies which undertake direct actions shall also consult with Section
IV, Proposed land and water uses and projects of the LWRP, in making
their consistency determination. The action shall be consistent with
the policies to:
(1)
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)
Policy 2: Preserve historic resources of the waterfront area.
(3)
Policy 3: Enhance visual quality and protect scenic resources throughout
the waterfront area.
(4)
Policy 4: Minimize loss of life, structure, and natural resources
from flooding and erosion.
(5)
Policy 5: Protect and improve water quality and supply in the waterfront
area.
(6)
Policy 6: Protect and restore the quality and function of the waterfront
area ecosystem.
(7)
Policy 7: Protect and improve air quality in the waterfront area.
(8)
Policy 8: Minimize environmental degradation in the waterfront area
from solid waste and hazardous substances and waste.
(9)
Policy 9: Provide for public access to, and recreational use of,
waterfront waters, public lands, and public resources of the waterfront
area.
(10)
Policy 10: Protect water-dependent uses and promote siting of new
water-dependent uses in suitable locations.
(11)
Policy 11: Promote sustainable use of living aquatic resources in
the waterfront area.
(12)
Policy 12: Protect agricultural lands in the waterfront area.
(13)
Policy 13: Promote appropriate use and development of energy and
mineral resources.
J.
If the agency determines that an action will be inconsistent with
one or more LWRP policy standards or objectives, such action shall
not be undertaken unless modified to be consistent with the LWRP policies.
K.
Each agency shall maintain a file for each action made the subject
of a consistency determination. Such files shall be made available
for public inspection upon request.
In the event that an activity is being performed in violation
of this chapter 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.
A.
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.
B.
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 law or provision hereof
other than the provision so found to be invalid.
This chapter shall take effect immediately after the following
have both occurred:
