HomeMy WebLinkAboutPubic Hearing 08/13/2019 SOUTHOLD TOWN BOARD
COASTAL EROSION PUBLIC HEARING
August 13, 2019
9:00 AM
Present: Supervisor Scott Russell
Justice Louisa Evans
Councilman William Ruland
Councilwoman Jill Doherty
Councilman James Dinizio, Jr.
Councilman Bob Ghosio, Jr.
Deputy Town Clerk Lynda Rudder
Town Attorney William Duffy
This hearing was opened at 9:17 AM
COUNCILMAN GHOSIO: NOTICE IS HEREBY GIVEN the Town Board of the Town of
Southold will hold a Public Hearing on Tuesday, August 13, 2019 at 9:00 A.M. at the Southold
Town Meeting Hall, 53095 Main Road, Southold, New York upon application of the Coastal
Erosion Hazard Board of Review Appeal of Donald W. Young Rev. Trust & Kelly C. Young
Rev. Trust which seeks relief from Chapter 111, Section 111-11C and Chapterl 11-6 to construct
a 200+/-ft. x 4 ft. wide fixed wood pile and timber pier including three tie-off piles with tide
slides, rails, grate decking and water/electric utilities, of which 172+/-ft. is waterward of the
apparent High Water Line. The 200+/-ft is including the 28+/- ft. fixed ramp; and as depicted on
the revised site plan prepared by Docko, Inc., received on June 27, 2019 and stamped approved
on June 28, 2019 within a near shore area in a Coastal Erosion Hazard Area located on property
on parcel SCTM# 1000-3-2-2 off East End Road, Fishers Island New York, and directs the Town
Clerk to publish notice of such appeal in the Suffolk Times newspaper not less than ten (10) days
nor more than thirty (30) days prior to such hearing and to notify the applicant by first class mail.
We have copies of the certified mailing receipts of the notices that were mailed out, we do have a
notarized affidavit that this hearing has been noticed in the Suffolk Times, as well as the Town
Clerk's office and bulletin board. That's all I have.
SUPERVISOR RUSSELL: Who would like to address the Town Board on this?
KEITH NEILSON: Hi, my name is Keith Neilson, with Docko, Incorporated. I prepared the
application documents you have before you as well as well as various applications for this
project. We have been working on this project for just over two years, for Mr. Young and we
have obtained permits from the US Army Corps of Engineers, we have a current statement from
the NY Department of State, we are in the final stages with the DEC at this point and we have
received tidal wetlands permit from the Board of Trustees. The variance we are requesting is
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August 13, 2019 page 2
stipulated in chapter 111 because the structure is greater than 200 square feet and it is not
removable. In the application, documents have gone into considerable dissertation about why
the structure cannot be removable and still retain structural integrity for the climatic conditions
that it is exposed to and if you have any questions about that, I would be happy to answer them.
The reason for the gross area being more than 200 square feet is because in the process of
meeting the permitting standards of the Corps of Engineers and the DEC where they stipulate
water depths and minimizing bottom disturbances due to propeller activity and so on during the
maneuvering of boats, we have to get out to a depth of about four feet. It is one of the DEC
standards and in this case, we have a rather unusual situation because there is eel grass out only
100 feet off shore but in the location of the dock that we had selected, there is no eel grass. We
have some photographic documentation for the Board, if you like I will give it to you right now,
you can take a look at it. It's unusual but over the last ten years or nine years that we have been
looking at this site, this particular area where we propose the dock to be has been devoid of
eelgrass vegetation. If you need a third set of photographs, I have got one here for you. The
photographs started off showing the house in the shore front from a distance of 200-300 feet off
shore looking in the southwesterly direction, if you go to the second photograph you'll see our
survey boat tied up and just to the upper left of the survey boat you'll see a void in the eelgrass.
And this is where the dock is proposed to land, I should say where the head of the pier will be
located. About the 4th photograph down into the set, I have sketched on with an orange line the
alignment and extent of the dock and shown the extent of the eelgrass and the difference of
vegetation in the dock area which is algae, a fibrous algae and sea lettuce and then eelgrass again
on the right side of the dock face, east side. The photographs pretty well verify what we have
documented in our survey consistently during the permitting process. To go over some of the
provisions that chapter 111 states, chapter 11 l's primary purpose is to make sure that no
structures are built that would induce or cause or make worse property damage or cause life
threatening situations to exist. The chapter 111 requires that whatever is being built is only for
pedestrian access, for boating in this case, that the dock is, in the zoning regulations, is an
allowable accessory for this home and the Trustees have approved the tidal wetlands permit
based on accessory use. The dock is necessary to span resources and to reach a permittable deck
for the other permitting agencies. It cannot be removable for the reasons I gave in the
application document that in order to hold fast in typical conditions of waves that can reach up to
three feet, the dock has to have a fairly stout pile driven support system. In this case they will be
either southern yellow pine or green rock piles that will be driven to 15 feet of embedment so
that they cannot be pulled out by storms and if we use green rock piles which I think that we will
have to do because of the rocky nature of the sub-stratus, that these piles will be there for well
over 30 years. The dock requires a shore front location which is a stipulation of chapter 117, it
will not cause erosion by design. The contact area of the 50 or so piles that we will utilize is less
than 40 square feet, it will be class B (inaudible) piles and their cross sectional area is just under
a square foot at the point of ground contact. And we have done everything that we can to locate
this dock facility in an area that will minimize adverse environmental impact. If you look at the
plans, you will see that the dock, the pier, point of origin is back here in the heavy overgrowth
which is along the shore. That's a natural riparian buffer, not necessarily native non-invasive
plants, so there's a lot of them there keeping the erosion protection that is desirable for the shore
front. It crosses over the tidal wetlands at the area where the wetlands outer fringe is nearest to
shore, so our wetlands crossing is minimized. It is out over open water, in rocky, in an area of
rocky bottom sediment for most of its alignment and then it goes off on an angle, it dog legs to
Young Coastal Erosion Appeal
August 13, 2019 page 3
the north between two large rocks that are prominent in the photographs you have there and
extends out to short of the end of this natural void in eelgrass vegetation. The vegetation that
you see in this area in the photographs is this fibrous algae and there's this picture of the fibrous
algae on the deck of the boat further down in the collection of photographs. We are anticipating
that all of these piles will be driven. When we get back to the shoreline end of the structure, it is
possible that rather than bringing in a land crane we would be bringing in either an excavator
with a migratory hammer or we may have to auger those posts in. Because they are not in the
direct wave break zone, the structural integrity factor is not as key as it is out in the open water.
From the plan you can see that we have minimized our impact on the area, if I can just refer to a
separate photograph that I had enlarged but unfortunately the quality of the photograph is not as
great as the one you have in front of you but it shows the point of origin of the pier just above the
tidal wetlands going through the rocky shorefront out to a point where the pier bends and goes
out to the farthest north most extent. This creates an area where a boat can align and maneuver
and berth. The piles for berthing are only on the west side, we are not putting in the piles on the
east side,just on the west side to minimize encroachment to or anywhere near eelgrass. But we
have achieved the minimum vegetative and resource disturbance possible and all the permitting
agencies agree with that. Another element of the regulation of the law is that we (inaudible)
nesting bird habitats and in the dozen or so times that I have been to this site, I have not
witnessed nesting birds. I know that primarily we are thinking of terns and plovers in these
regulations, we are not dealing with the whole meadow variety of birds but regardless, this is not
a suitable spot for plovers or terns as well. We are not changing geographical features, there is a
reasonable likelihood that the pile intervals will not be the nice, uniform ten feet that we have
shown on the drawings because physically we are getting to areas of heavy boulder
concentrations, we have to put the piles where we can drive them and modify the framing to suit
that pile location. There are no alternative sites for this structure. Our application drawings show
the rather limited frontage of the Young home, the yellow line that I have emphasized on my
drawing and cuts across the front of tidal wetlands on the westerly side is their beach that exists
over to the east of this site as part of the Ferguson Museum conservation area, it's open to the
public and in our discussions with representatives we were not offered any kind of latitude to put
the dock over on the east side of the point. And so we left it with the area that is under the
control of the Youngs and your permitting agencies. At this point we do have the US Army
Corps of Engineers permit, which includes the signoff from the National Marine Fishery Service,
EPA and US Fish and Wildlife Service, all of whom are concerned with the protection of
eelgrass and they publish standards for the protection of vegetative resources and those are now
shown on the drawings. For instance, the nine foot deck elevation for the first two thirds of the
pier is in order to make sure the shading impacts of the pier are minimized on the tidal wetlands
and even the barren shallow inter-tidal zone. Once we get an active sub tidal zone, the pier starts
to slope down to the landing at the end and this is to maintain approximately an eight foot
separation between the other side of the pier and bottom sediments. The water reaches the depth
of four to five feet at the end of the pier. We have a level landing at about elevation 5.5 for the
last 20 feet of the pier except at the last five feet of the pier is now at elevation 3.5 and that is to
allow low water access for boat drifting from this structure. The time of year restrictions we
were anticipating are building between October and April, minimum height is as I mentioned
five feet above mean high water or eight feet above the sediment, maximum width four feet. Use
of through flow decking which we have utilized for the full length of the pier and avoiding any
floating dock. That was the most recent negotiating point with the DEC and the owner finally
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August 13, 2019 page 4
agreed to it which was what led us to submitting everything to the Board of Trustees two months
ago. There will be no roadway to the dock or dock facilities, there is no vehicle traffic. There
will be no interference of this dock facility with public access and the access to the pier by the
Young family will be by their lawn. That covers the technical and legal aspects of the variance
request. Again, 200 square feet is not achievable, a 200 square foot footprint would be 50 feet
long and four feet wide, and we can't reach the desired depth to get past the boulder field and so
on with that type of pier, so we have to exceed the 200 square feet. In order to make the pier
suitable for this location, we have to drive piles of considerable depth to maintain variance
stability and pull out stability and so we cannot make the removable. If we would have to
remove it every year, it would destabilize the sediments to the point that future pile bearing
strength would be jeopardized. I would be happy to answer any questions or review the
photographs in detail if you would like.
COUNCILWOMAN DOHERTY: I have a few comments, first of all, thank you for the pictures
because we just recently received a letter yesterday suggesting that possibly moving the dock
over to the east to mitigate going over eelgrass and they gave us a black and white picture, so
your pictures have proven to me that that's not the most viable place to mitigate it and my other
questions were you know, you are using the floats for decking which you, and the height so the
natural sunlight will reach it at most parts of the day and then you answered my other question,
at the end of the dock is still within the lines, the extended lines of the property. So that's really
the questions I had and you answered them, so thank you for the pictures and all that. So that
would be my concerns. The eelgrass in that area over the years has you know, diminished but
it's been a place where a study, as you know Chris Pickerell has studied there and to test the
eelgrass and I think you have done a great job of trying to mitigate that and getting away from
that.
SUPERVISOR RUSSELL: This isn't a replacement in kind? There is no history of a deck
there?
MR. NEILSON: Well, there is a history. Not recent. I suspect that part of the reason for the
profusion of boulders out here is that in the late 20's and through the 1930's there was a pretty
substantial dock there. It was, at least the end of it was a crypt built timber structure with stone
and although some of these stones are so big I don't know how they would have moved them into
the crypt structure but there was a structure here for at least 15 years before the hurricane of'38
and my understanding is there has not been a dock there since then.
SUPERVISOR RUSSELL: And this extends considerably longer than I guess there's some
existing docks in the area, this extends out considerably longer than those?
MR. NEILSON: It is about 50 feet longer than the Calhoun dock. It's closer to the length of
(inaudible).
SUPERVISOR RUSSELL: I am sorry?
MR. NEILSON: There's another dock about 1/4 of a mile to the west of this that's almost 200
feet.
Young Coastal Erosion Appeal
August 13, 2019 page 5
SUPERVISOR RUSSELL: And there's no history on this?
MR. NEILSON: We would not have, our objective was to try to reach the most navigable water
that was consistent with the permitting guidelines that are in effect. The DEC actually states in
their policy that they would like to get to four feet of water to ensure that there's no future
requirement for dredging and so we reach that in this application. It gets to five feet of depth
about another 20 feet out and so felt that this was the maximum practicable length that would
achieve DEC standards and avoid the propeller backwash disturbances of bottom sediments, so it
is environmentally what the studies are requesting.
SUPERVISOR RUSSELL: I am looking at the schematic and I have to presume the scale, I
don't see another dock here that's even close to this one. Yes, the location of the docks but the
extension out into the water.
MR. NEILSON: This one is longer than the others, you are right.
SUPERVISOR RUSSELL: And the Ferguson Museum holds that property (inaudible).
MR. NEILSON: It's the Ferguson Museum, yes, it's conservation, it's public access to the beach.
SUPERVISOR RUSSELL: Yes, that's what I thought.
MR. NEILSON: They have a little kayak rack with paddle boards and such stored on the beach
for the use of the public.
COUNCILWOMAN DOHERTY: It doesn't seem like this dock would interfere with that.
MR. NEILSON: It will not.
SUPERVISOR RUSSELL: Which direction does it go?
COUNCILWOMAN DOHERTY: It goes to the west and the Ferguson beach is to the east.
SUPERVISOR RUSSELL: Yes but when you get out into the water you can go east or west.
COUNCILWOMAN DOHERTY: I know, but that's what I am saying, the way it's curved you
can still go out.
INAUDIBLE COMMENTS
SUPERVISOR RUSSELL: I don't know if there are any other questions from the Board?
COUNCILWOMAN DOHERTY: Well, we just got this letter yesterday, if you want I can speak
to the Board of Trustees to ask them, what their opinion is with the eelgrass and just ask them
how they (inaudible).
Young Coastal Erosion Appeal
August 13, 2019 page 6
SUPERVISOR RUSSELL: I think that the position of the Trustees should be part of the public
record.
MR. NEILSON: Can I just speak to that briefly? This same objection was raised during the
Trustees proceedings and the eelgrass study that was conducted around Fishers Island two years
ago was included and a stipulation in the request was to move the dock over but if I can just
direct your attention to the characteristics that we have surveyed which show up in your
photographs, the eelgrass bed comes in from the west and deviates out into the open water and
then it comes back down along the east and comes fairly close to shore. This duck blind here is
the mean low water line. In order for us to get a dock in this area and not get the eelgrass, there's
not a lot of room and the property line is right there. So if we go outside of that, to the east of
that, we are in front of the Ferguson property where we would be creating more of an impact on
the public access issues but the proximity of the eelgrass close to the mean low water lines here
creates a zone where we really cannot feasibly put a dock. And there are boulders in this area.
Our surveys are pretty specific and we pick up all the boulders that are going to be navigational
impediments or access impediments for the dock and there are a lot of them in this area and so
where we have placed the dock gets out beyond most of the boulders. We build over some of the
boulders so they would not be impediments to the launching of the boat and we stopped short of
the eelgrass. If we put that dock over where Mr. (inaudible) had originally requested, it would
have been right there and even 50 feet shorter, you can see is still going to be 50 feet of
encroachment over the eelgrass. So moving the dock to the east is not a viable consideration.
SUPERVISOR RUSSELL: Okay. So I am just going to say for the record, the coastal erosion
hazard mitigation line was established for a purpose, the stated purpose which was to stop
construction in those high hazard areas. And we have had a history, for good or bad of if you
have it you can keep it but if you don't or never had it, then that requires far more serious
consideration on my part, so we can close the hearing based on the will of the Board but I am
going to need some time.
COUNCILMAN DINIZIO: Can I make a comment on this, Scott, I couldn't agree with you more
and I don't understand why we are even wasting time on (inaudible). That's the only place in
Southold Town that has eelgrass, the only place and I don't quite understand why you would
even consider putting a structure near it, anywhere near that spot. It doesn't make any
environmental sense to me at all. I mean, I get it that you are trying to slip it in near a little canal
but quite honestly, I don't understand why the DEC or the Trustees or even anybody would even
consider this application. I mean, that's my personal opinion. I am not a, I am very property
rights person quite honestly but why we are even considering this I don't know.
COUNCILMAN GHOSIO: I have to agree. Having been a Trustee as many years as I was and
you and I know each other from those days, I always find your reasoning and presentation to be
very professional and I understand the points that you are making. I have to agree that one of the
reasons the coastal erosion hazard law is there is to prevent this kind of structure, building in a
coastal erosion hazard area. It would be one thing if we were discussing replacing something
that had been there for a long time, needing upkeep, knowing that area and the eelgrass issues
that we have had in town at least the last 20-30 years, I am kind of (inaudible) by the fact we
would consider allowing this (inaudible) in this zone.
Young Coastal Erosion Appeal
August 13, 2019 page 7
SUPERVISOR RUSSELL: Also the issue isn't where the eelgrass is, it's also where the eelgrass
might be someday. The goals of all these environmental agencies is to expand the eelgrass beds,
not to simply avoid them.
MR.NEILSON: Can I say something?
SUPERVISOR RUSSELL: Yes.
MR. NEILSON: We have been looking at this site since 2010 and this void in the eelgrass has
been there consistently since that time and you can see it on google photographs which are taken
from considerable distance and it is, it's not like it's a featureless area but there is no eelgrass in
that area. And the, what we were asked to do was put in or see if there a dock that could exist
here compatibly with the eelgrass beds and we have done that. We put it in the area that as far as
our records show has not been habitat for eelgrass. So with that as a starting point and if we are
trying to provide public access, recreational boating access and we can meet all of those
parameters, which is what we have demonstrated through the (inaudible) that we have gotten so
far, we don't believe that there is a detriment to any of the resources or vegetation or animal or
geological as a result of what we have done here.
SUPERVISOR RUSSELL: Is there anybody else that would like to address, either the Board or
a member of the audience? (No response)
This hearing was closed at 9:46 AM, held open for written comment for two weeks.
01�
Lynda MIRiudder
Deputy Southold Town Clerk