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Town of East Hampton, NY
Tuesday, July 17, 2018

Chapter 255. Zoning

Article V. Special Permit Uses

§ 255-5-51. Specific standards and safeguards for natural resources special permits.

[Added 4-13-2007 by L.L. No. 14-2007]
Because of their number and complexity, the specific standards and safeguards applicable to natural resources special permits under § 255-5-50 hereof are set forth in this section. These standards and safeguards shall apply to every natural resources special permit as though set forth in their entirety in § 255-5-50.
A. 
Natural resources special permits, generally. This special permit shall be issued by the Board of Appeals, which agency shall have exclusive and complete jurisdiction over the administration of such permit in accordance with the provisions of this section. In reviewing any application for a natural resources special permit, the Board of Appeals may refer the matter to the Planning Department and the Town Trustees (where applicable) for a recommendation. In the event of any such referral, the Planning Department and the Town Trustees (where applicable) shall make a recommendation in writing to the Board of Appeals within 30 days of the date of the referral. However, in the event that additional information is required by the Planning Department to complete its review, it shall notify the applicant within 10 days of the date of the referral what additional information is needed and, in such event, the Planning Department shall submit its recommendation to the Board of Appeals within 20 days after receipt of the requested information from the applicant.
B. 
Delegation of natural resources special permits. Pursuant to the provisions of § 255-8-84 hereof, which authorize the Planning Department to process and issue certain natural resources special permits, the Board of Appeals may delegate such review and approval of individual applications to the Planning Department in any manner which the Board deems best suited to this purpose. With regard to any permit, class of permits, or permit application for which such a delegation has been duly made, references in this chapter to the Board of Appeals shall be construed, where appropriate, to mean the Planning Department.
C. 
Compatibility with purposes of chapter. The building, structure, use, or activity for which a natural resources special permit is sought must be found to be compatible with the purposes set forth in § 255-1-11 and § 255-4-10 of this chapter.
D. 
Preservation of natural resources. All structures and uses, other than coastal structures, shall be located on upland and shall be located so that no natural resource, feature, or system designated in § 255-4-12 hereof will be diminished in size, polluted, degraded, or lost, or placed in peril thereof, in order to establish such structure or use. If there is inadequate upland for the structure or use proposed, minimal exceptions to the requirements of this section may be authorized in the permit, but only after:
(1) 
Alternative reasonable uses of the property are determined not to exist; and
(2) 
Alternative designs entailing smaller buildings or structures, reduced yard or other setbacks, or diminished or reconfigured areas of use are determined not to be effective in preventing loss of or potential damage to designated natural features, or the only such designs are found to be infeasible or unlawful.
E. 
Coastal structures, generally. A coastal structure may be placed at any location on a lot if the structure and the uses associated therewith are found not to be detrimental to any natural resource, feature, or system designated in § 255-4-12 hereof. No permit shall issue for any structure which would unduly interfere with tidal flow or marine life or habitat, or which would destroy other than the minimal practicable areas of beach vegetation, wetland vegetation, or eel grass (Zostera marina). For the purposes of this section, a structure will be deemed in violation of the preceding sentence and ineligible for a natural resources special permit if the structure, together with all similar structures likely to be sited in the vicinity should it be approved, would cause such undue interference or destruction.
F. 
Erosion control structures. No natural resources special permit shall be issued for the construction, placement, installation, repair, reconstruction, replacement, or alteration of an erosion control structure unless the application for such permit, in addition to complying with the general requirements for issuance of special permits and the requirements of the preceding subsection regarding coastal structures, and subject to the provisions of § 255-3-85 hereof, satisfies the following requirements:
(1) 
If the application involves a new erosion control structure, the applicant shall demonstrate that erosion control on the project site cannot adequately be accomplished by means of a coastal restoration project, as defined herein, with periodic renourishment or renewal of sand or other materials.
(2) 
If the application involves a new coastal erosion control structure in Coastal Erosion Overlay Zone 1, 2 or 3, the applicant shall demonstrate that: (i) the erosion control structure is immediately necessary to prevent the loss or destruction of a principal building or structure on the applicant's lot, or to prevent severe damage to such building or structure, (ii) the threatened loss, destruction, or severe damage to a principal building or structure cannot reasonably be prevented by some alternative means, such as relocating the building or structure or undertaking a coastal restoration project, as defined herein, and (iii) the erosion control structure is of the minimum size, design, and physical extent needed to prevent the threatened loss, destruction, or severe damage.
(3) 
The construction, installation, or other work proposed for the erosion control structure, as well as future repair, maintenance, or restoration of the same, shall not:
(a) 
Interfere with the littoral transport of sand or other sediment, so as to cause substantial damage to or a measurable increase in erosion of the project site or downdrift beaches, dunes, bluffs, or shoreline.
(b) 
Cause the loss of identified habitat for important wildlife or native vegetation, including marine life and marine habitat.
(c) 
Exacerbate flood damage by generating floodborne flotsam.
(4) 
The erosion control structure shall be designed and constructed according to generally accepted engineering principles, such that the structure will have a reasonable probability of controlling erosion on the project site for a period of at least 30 years.
(5) 
All materials used in the erosion control structure shall be nontoxic, durable, and capable of withstanding the icing, weathering, inundation, wave impact, and other meteorological and hydrographic conditions to which they will be exposed for a period of at least 30 years. Individual components of the structure may have a working life of less than 30 years if a maintenance program required in connection with the issuance of a permit will ensure that these components are regularly maintained and replaced as necessary to attain the required 30 years of erosion control.
(6) 
The application shall include a long-term program for the repair, maintenance, or restoration of the structure. That program must include standards for the normal maintenance or replacement of degradable materials and the replacement of sand and vegetative cover. The Zoning Board of Appeals shall require the filing of an appropriate legal instrument against the subject property at the Office of the Suffolk County Clerk in form acceptable to the Town Attorney, which shall require the applicant and all future owners of the property to follow the long-term program for the repair, maintenance, or restoration of the structure. The Zoning Board of Appeals may require that the applicant for an erosion control structure assure the required maintenance by posting an appropriate undertaking and security with the Town.
G. 
Water-dependent facilities. The provisions of Subsection F above shall not apply to bulkheads and similar structures which are part of a water-dependent facility in the Waterfront (WF) Use District, or which are part of a lawfully existing marina or recreational marina in any district.
H. 
Docks. No dock, pier, wharf, or similar structure (hereafter, "dock") may be authorized by natural resources special permit on residential property or underwater lands adjacent thereto, unless the dock complies with the following standards or limitations, which are in addition to the other standards enumerated in this article for issuance of a natural resources special permit, including those specified with regard to coastal structures in Subsection E above:
(1) 
If the property in question is already improved with a lawfully preexisting fixed dock, a natural resources special permit may authorize the reconstruction of that dock or its replacement with a new fixed dock.
(2) 
If the property in question is not already improved with a lawfully preexisting fixed dock, the only type of dock which may be authorized by natural resources special permit is a floating dock, which shall be construed to mean that the dock meets the following requirements:
(a) 
The horizontal weight-bearing construction on which persons and objects stand (which is itself commonly called the "dock") shall be no greater than five feet in width and shall be designed so that it floats on the surface of the water (i.e., so that it is a "floating dock");
(b) 
Every part of the dock except the pilings shall be designed and shall be used so that it is removed during the winter months and reinstalled in the spring (i.e., so that the dock, excepting only the pilings, is "fully removable");
(c) 
The dock shall be designed and sited so that, with the exception of the pilings, no part of the dock (including any catwalk and any ramp between a catwalk and the remainder of the dock) will contact the bottomland during a normal low tide;
(d) 
The dock shall be the minimum length necessary to reach a point where the water depth at the seaward terminus of the dock (inclusive of any catwalk) is three feet at mean low water; provided, however, that such point shall not in any case be more than 80 feet seaward of mean high water, as measured on a perpendicular line from the mean high water mark;
(e) 
Notwithstanding the provisions of Subsection H(1)(a) and (b) above, when necessary to maintain a floating dock in a floating condition through a normal tide range, access between the dock and shore may be provided by means of an elevated fixed walkway (commonly called a "catwalk") not more than five feet in width; provided, however, that no such catwalk shall extend more than 40 feet seaward of mean high water, as measured on a perpendicular line from the mean high water mark; and
(f) 
A catwalk shall provide, in appropriate circumstances, for passage by the public along the beach or foreshore, e.g., by means of a removable or raised section (allowing vehicular passage) or steps or a ramp (allowing pedestrian passage).
(3) 
Before approving a dock under the provisions of Subsection H(2) above, the Board of Appeals shall have first considered all reasonable alternatives which will allow the applicant to safely access and utilize a boat (e.g., rig line and pulley, free swinging mooring).
(4) 
In considering whether to issue a natural resources special permit for a dock, the Board of Appeals shall consider whether the dock will have any of the following harmful effects:
(a) 
Whether the dock will impair navigation;
(b) 
Whether the dock will unduly interfere with the public use of waterways for swimming, boating, fishing, shellfishing, waterskiing, and the like;
(c) 
Whether the dock will unduly interfere with transit by the public along the public beaches or foreshore;
(d) 
Whether the dock will significantly impair the use or value of waterfront property adjacent to or near the dock;
(e) 
Whether the dock will cause degradation of surface water quality;
(f) 
Whether the dock will result in the destruction of beds of eel grass (Zostera marina) or shellfish;
(g) 
Whether the dock will unduly restrict tidal flow or water circulation; and
(h) 
Whether the dock will despoil views from public parklands or roadways.
I. 
CCA and other treated wood. No natural resources special permit which is required for projects or activities in tidal waters shall allow the use of wood which has been treated with copper chromated arsenate (CCA), ammoniacal copper quat (ACQ), or creosote unless it can be shown that no reasonable alternative material will serve the purpose for which the CCA-, ACQ-, or creasote-treated wood is intended to be used. In determining whether no reasonable alternative to the proposed wood exists, the Board of Appeals shall take into account the cost of alternative materials, their suitability for the intended use (e.g., structural stability), and any environmental benefit to using alternative materials.
J. 
Harbor Protection Overlay District. For structures, lands, or uses located within the Harbor Protection Overlay District, the disturbance of natural vegetation and topography during construction activities shall be minimized to the greatest degree practicable. To this end, project-limiting fencing, siltation mesh, straw bales, or similar devices for controlling land disturbances and retarding erosion and siltation shall be required during construction and during any clearing or grading of land preparatory to or associated with construction activities.
K. 
Deposit of materials within Coastal Erosion Overlay District. Apart from structures approved pursuant to this chapter, no fill or other material may be placed or deposited on beaches, dunes, or nearshore areas within the Coastal Erosion Overlay District except clean sand or gravel, having particles of a size equivalent to or slightly larger than that of the materials naturally occurring at the site in question. Where appropriate, such deposited material shall be stabilized by the planting of vegetation.