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HomeMy WebLinkAboutReed Super 7.10.23 Submission SUPER LAW GROUP, LLC WRITER'S DIRECT DIAL: 212-242-2273 July 10, 2023 EMAIL: reed@superlawgroup.com Via email Mr. James H. Rich III, Vice-Chairman Southold Town Planning Board 54375 Main Rd P.O. Box 1179 Southold, NY 11971 Re: Comments on Strong's Yacht Center DEIS and Site Plan Application Dear Mr. Rich and Members of the Planning Board: On behalf of Save Mattituck Inlet, we submit the following regarding the Draft Environmental Impact Statement(DEIS) and site plan application for the Strong's Yacht Center proposed boat storage buildings: (1) Comments on the DEIS and site plan application,with Attachments A—E (all in the same PDF with this cover letter); and (2) A request, pursuant to Town Code § 280-146(D), that the Planning Board ask the Zoning Board of Appeals (ZBA) to: (a) determine the exact location of the R80/MII district boundary on Strong's property in light of the issues raised in the April 2022 Boscola letter attached to the request; and (b) interpret Town Code § 280-111(H) regarding the storage of petroleum products as it applies to the application. If the Planning Board has any doubts about either matter, a ZBA determination may be of assistance (the request is a separate PDF). The following is a brief summary of the many reasons, explained in more detail in the attached comments, why the Planning Board should deny the application, after it prepares a complete, accurate, and adequate Final Environmental Impact Statement: (FEIS): 1. Upon initial referral from the Planning Board, the staff of the Suffolk County Planning Commission issued a report highly critical of the application and recommended that the Planning Board prohibit the proposed excavation of 135,000 cubic yards. The Commissioners deemed the referral to be incomplete thereby requiring the Planning Board to submit the requested materials to the County when complete and "resolved to generally agree with the staff report." The Planning Board's legal authority to override Suffolk County Planning Commission actions and recommended conditions is very limited and, because the environmental issues raised by the County are closely related to environmental goals and objectives at the Town level, the Planning Board should prohibit the proposed excavation and deny the application. 2. The proposed project conflicts with the purposes of Town Code, Chapter 280, Article XXIV, Site Plan Approval. 222 BROAD NvAY, 22ND FLOOR • NENvYORK, NENvYORK 10038 TEL: 212-242-2355 • www.superlawgroup.com Southold Town Planning Board July 10, 2023 Page 2 3. The proposed project is inconsistent with the purposes and permitted uses set forth in Town Code, Chapter 290, Article XIII regarding the MII district and is prohibited under Town Code § 280-111(H)because it would store more than 20,000 gallons of petroleum products within 1,000 feet of tidal waters. 4. The proposed project is clearly inconsistent in numerous respects with chapters, goals, and policies of the Town's Comprehensive Plan. 5. The proposed project is inconsistent with the Town's Local Waterfront Revitalization Program(LWRP). 6. The State Environmental Quality Review Act(SEQRA) authorizes agencies to deny a project to avoid significant adverse environmental impacts. This is often referred to as SEQRA's "substantive mandate." The proposed project could have many highly significant adverse environmental impacts, but there is no overriding public need for, or public benefit from, the project. The Planning Board should issue a Negative Findings Statement and deny the application on that basis. 7. The applicant's DEIS needs substantial revision and/or supplementation and additional public notice and comment on the new studies and reports before the Planning Board, as lead agency, can complete the FEIS that it will be responsible for. This must be done before any of the above decisions can be made. S. As the applicant's biologist acknowledges, the project site provides habitat for endangered species that are expected to be present there. Protection of all state- and federally- listed threatened and endangered species and other species of special concern and their habitats, as well as full compliance by the applicant and all involved agencies with the state and federal Endangered Species Acts and regulations, are of paramount importance. Once an endangered species is extirpated, it's gone forever. Thank you for your attention to these issues of critical importance to the citizens of the Town of Southold and for your continued close scrutiny of the proposed project. Should you have any questions, please do not hesitate to contact us. Sincerely, Reed Super, Esq. Ethan Baer, legal intern cc (via email): Planning Department Town Attorney Southold Town Planning Board July 10, 2023 Page 3 Zoning Board of Appeals Suffolk County Planning Commission NYSDEC Save Mattituck Inlet Save the Sound North Fork Audubon Group for the East End Turtle Rescue of the Hamptons Joel Klein Comments on Revised Draft Environmental Impact Statement dated November 2022 for Strong's Yacht Center — Proposed Boat Storage Buildings and Application of Strong's Yacht Center for Site Plan Approval pursuant to Chapter 280 of Town Code submitted to Town of Southold Planning Board By Reed W. Super, Esq. Ethan Baer, legal intern Super Law Group, LLC 222 Broadway, 22nd Floor New York, NY 10038 212-242-2355, ext. 1 reedgsuperlawgroup.com on behalf of Save Mattituck Inlet Dated: July 10, 2023 TABLE OF CONTENTS Page INTRODUCTION 1 EXECUTIVE SUMMARY 1 COMMENTS ON SITE PLAN APPLICATION 4 1. SUFFOLK COUNTY PLANNING COMMISSION 4 2. CHAPTER 280, ARTICLE XXIV (SITE PLAN APPROVAL) 11 3. OTHER CHAPTER 280 SECTIONS 13 4. INCONSISTENCY WITH COMPREHENSIVE PLAN 16 5. INCONSISTENCY WITH LWRP 33 COMMENTS ON DEIS AND SEQRA RELATED ISSUES 40 6. SEQRA SUBSTANTIVE MANDATE 40 7. SEIS AND FEIS 50 8. ENDANGERED SPECIES 54 CONCLUSION 56 INTRODUCTION These comments along with the attachments are submitted on behalf of our client, Save Mattituck Inlet,' regarding (1) the Revised Draft Environmental Impact Statement("DEIS"), dated November 2022, for Strong's Yacht Center—Proposed Boat Storage Buildings, prepared pursuant to the State Environmental Quality Review Act ("SEQRA"); and (2) the application of Strong's Yacht Center for Site Plan approval pursuant to Article XXIV of the Town of Southold Town Code (hereinafter, "Town Code"). We appreciate the Planning Board's continued careful consideration of the highly significant adverse environmental and land-use impacts and repercussions that this proposed project would have on the Hamlet of Mattituck, the Town of Southold, and the entire County. We urge the Planning Board and the Planning Department, as well as your outside consultants and the Town Attorney, to carefully consider these comments in your ongoing review of, and decisions regarding, the proposed project. EXECUTIVE SUMMARY As discussed herein, the Planning Board should deny the application for site plan approval because the exceedingly damaging proposed project cannot be approved consistent with numerous mandatory requirements of State, County, and Town law. Many of the application's glaring inconsistencies with adopted policies and plans stem from the applicant's request for permission to radically transform the upland topography and ecology near Mattituck Creek/Inlet. Clear-cutting more than 600 mature trees from a vulnerable coastal oak-beech forest that sits 50+ feet above mean sea level ("AMSL") and provides habitat for threatened and endangered species and other species of special concern would obviously cause severe and irreversible environmental consequences, not only on the immediate site but also on the neighboring Mill Road Preserve. The adverse impacts of excavating and hauling away the hillside would then reverberate through the County all along the proposed truck route. Destroying the forest and its valuable habitat, dropping the grade by 40+ feet, digging and removing nearly 135,000 cubic yards of sand and earth from 4.59 acres in more than 4,000 truckloads (creating more than 8,000 truck trips each way), and then erecting a 900-foot-long retaining wall more than 30 feet high to hold back the slope cut is an absurd approach to constructing buildings, each with a one-acre-plus footprint, to store the 88 yachts that Strong's hopes to transport to and from the water by travel lift. For obvious reasons, the applicant's drastic proposal violates a panoply of Town-wide and hamlet-specific policies and plans and cannot be approved under State, County, and Town ' Save Mattituck Inlet, established in 2020 by a group of local residents, seeks to protect and preserve Mattituck Inlet and the surrounding ecosystem. The group understands that Mattituck Inlet holds a delicate balance of rich environmental and historical importance while serving as a foundation for local commerce,recreational activity,and scenic beauty. Save Mattituck Inlet aims to ensure that the community's voice is active in the oversight of development of and around the Inlet by raising awareness and advocating for transparent and responsible development that considers the impact on the economy,the ecology,and the local quality of life. For more information, see https://savemattituckinlet.com/ 1 law, for the following reasons, which are summarized here and elaborated in more detail below: First, upon referral from the Town, Strong's site plan application has been initially reviewed by the Suffolk County Planning Commission and its staff, which recommended, among other things, that the Planning Board impose the mandatory condition that"No soils should be removed"because "[t]he intended excavation will create a bowl on site where storm flood waters from Mattituck Creek will surge into." Pursuant to the Suffolk County Administrative Code, the Planning Board may not override a decision by the Suffolk County Planning Commission to disapprove an application or to approve it with modifications or conditions unless a supermajority i.e., all four voting members of the Planning Board considering this application votes to do so and explains its reasons. Because the County's initial recommendation to prohibit the excavation of 135,000 cubic yards of earth were correct and based on the facts and applicable laws and regulations, there is no sound basis on which the Planning Board could or should override such a recommendation. The County initial review did not, however, result in the Planning Commission taking action on the referred application because the Commissioners voted in 2020, on an 11-1 vote, that the application was incomplete. Thus, a complete application, including the materials specifically requested by the Suffolk County Planning Commission, will have to be submitted to the County, before the Planning Commission can act on it, in accordance with State and County law. The County's action will affect the Planning Board's decision-making process and its decision on the application. Following the County's action, the Planning Board should vote to disapprove the application. Furthermore, many of the issues at the County level are related to goals and objectives at the Town level, which the Planning Board must also assess for consistency or inconsistency before making a decision on the proposed project. Second, the Planning Board should deny the site plan application because the proposal conflicts with the purposes of the Town of Southold Town Code, Chapter 280, Article XXIV Site Plan Approval, including those set forth in Town Code §§ 280-128, 280-129(D), (H), and (J), regarding conservation of natural features, bluffs, woodlands, large trees, unique plant and wildlife habitats, flood hazards areas, wildlife breeding areas, respect for existing grades, and avoiding unnecessary excavation. Third, the Planning Board should vote to deny the site plan application because it is inconsistent with the purposes and permitted uses set forth in Town Code Chapter 280, Article XIII regarding the Marine II district, and the proposed project would violate Town Code § 280- 111(H)'s prohibition of storage facilities containing more than 20,000 gallons of petroleum products within 1,000 feet of any tidal waters. In the event the Planning Board harbors any doubt about the exact location of the boundary between the R80 an MII districts on the site (which has been questioned by a family whose property is surrounded by the applicant's) or about the interpretation and application of Section 280-111(H) to this proposal, Town Code § 280-146 authorizes the Planning Board to ask the Zoning Board of Appeals for a determination of one or both issues. We have submitted herewith a separate request that the Planning Board ask the ZBA to make one or both of those determinations. Fourth, the Planning Board should vote to deny the site plan application because it is inconsistent with the Comprehensive Plan in numerous respects including the chapters, goals, 2 and policies addressing zoning, protection and enhancement of the Town's natural resources and environment, protection of open space, provision of parks and recreational opportunities, preparing the Town for natural hazards, protecting the Town's character, reducing traffic congestion and improving traffic safety, among many others. Fifth, the Local Waterfront Revitalization Program (LWRP) Coordinator should recommend denial of the site plan application because it is inconsistent with the Town's adopted LWRP, and the Planning Board should adopt that recommendation and deny it on that basis. The proposed project is inconsistent with LWRP policies regarding community character and scenic resources in the coastal zone, minimization of losses from flooding and erosion, protection of water quality, protection of the Town's ecosystem, recreational uses of public lands, and the suitability of locations for water-dependent or water-related uses, among others. Sixth, the Planning Board should issue a Negative Findings statement and deny the application pursuant to SEQRA's substantive mandate. SEQRA authorizes local agencies to deny a project to avoid significant adverse environmental impacts. This proposal will cause significant adverse environmental impacts in many resource categories. Moreover, there is no overriding public need for, or public benefit from, the project. In the absence of such need and benefit that could outweigh the significant impacts, there is no basis for the Planning Board to approve the project. Seventh, before making any of the above determinations, there must be a Final Environmental Impact Statement("FEIS")prepared and adopted by the Planning Board in full compliance with the SEQRA statute and regulations. The applicant's DEIS needs substantial revision and supplementation and additional public notice and comment on the new studies and reports in a Supplemental Environmental Impact Statement ("SEIS") before the Planning Board, as Lead Agency, can complete the FEIS that it is responsible for. Eighth, as the applicant's biologist acknowledges, the project site provides habitat for endangered species that are expected to be present there. Protection of all state- and federally- listed threatened and endangered species and other species of special concern and their habitats, as well as full compliance by the applicant and all involved agencies with the state and federal Endangered Species Acts and regulations are of paramount importance. These issues are explained further below. 3 COMMENTS ON SITE PLAN APPLICATION, INCLUDING FATAL INCONSISTENCIES WITH ADOPTED PLANS AND POLICIES, AND SUFFOLK COUNTY ADMINISTRATIVE CODE REQUIREMENTS AFFECTING THE PLANNING BOARD'S DECISION MAKING State, County, and Town laws govern the Planning Board's decision-making process and its substantive decision on any application for site plan approval. The Planning Board, after review of an application and full compliance with all procedural requirements, has three options: (a) approve the site plan as submitted; (b) approve the site plan with modifications, conditions, and/or restrictions that the Planning Board deems necessary; or(c) disapprove (i.e., deny) the site plan. N.Y. Town Law § 274-a(2)(a), (4); Town Code §§ 280-127 to 280-131. County laws and regulations add additional requirements. The Planning Board should vote to disapprove the site plan for all of the following reasons and should make the explicit findings discussed below. 1. The Planning Board Should Follow the Suffolk County Planning Commission Recommendation to Prohibit the Proposed Excavation and Thereby Disapprove the Application. The Suffolk County Administrative Code ("County Admin. Code") Section A14-25, entitled "Referral of certain site plans to Planning Commission,"requires each village in Suffolk County having jurisdiction to approve site plans, before taking final action, to refer to the County Planning Commission any site plan which would affect any real property lying within 500 feet of various geographical features, including the Atlantic Ocean, Long Island Sound, any bay in Suffolk County, or estuary of any of the foregoing bodies of water. County Admin. Code § A14- 25(A)(6). The Planning Board has made a referral, in February 2020, and the Suffolk County Planning Commission then issued a staff report, analysis, and recommendations, dated March 25, 2020, which the Commissioners considered at their April 1, 2020 meeting. See Attachments A and B, hereto.Z The County Admin. Code provides that where the County Planning Commission recommends that the Town Planning Board disapprove a site plan or approve it with changes or conditions, the Planning Board has two choices. It may either"amend the proposed action in accordance with the Planning Commission's recommendations and adopt it in the ordinary course of municipal business or decline to adopt any one of the recommendations of the Planning Commission and adopt the action as originally proposed, but only upon an affirmative vote of a majority plus one of the entire membership of the referring hodv in a resolution that explicitly 2 The March 25,2020 report and April 1,2020 are also available at: https://ww-w.suffolkcopplyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2020/Strongs°/`2OStaff`/`20 Report.pdf and https://ww-w.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2020/Commission°/`20Mtg %20 Summary%204-1-2020%20FINAL%2010-26-20.pdf. 4 sets forth its reasons for not adopting the Planning Commission's recommendations." County Admin. Code § A14-25(D)(2) (emphasis added);' see also § A14-25(D)(3) (similar supermajority requirement where County Planning Commission renders a report recommending disapproval of the site plan).' The Suffolk County Planning Commission's March 25, 2020 staff report("County Report,"Attachment A, hereto) contains numerous facts, concerns and considerations, analyses, and recommendations that are highly relevant, procedurally and substantively, to the Planning Board's review, decision-making process, and decision on the site plan application. As to the County Planning Commission's role under state law, the report notes that "New York State General Municipal Law, Section 239-1 provides for the Suffolk County Planning Commission to consider inter-community issues . . . such . . . as compatibility of land uses, community character, public convenience and maintaining a satisfactory community environment." Report at 3. It also explains that "Suffolk County Planning Commission Jurisdiction over this application [under the County Admin. Code] is triggered by the project sites proximity to Mattituck Creek. It rises to a regionally significant project by Commission definition as it is located in one of the five East End towns and proposes the construction of more than 50,000 square feet of gross floor area." Id. at 4. Importantly: "Because of the subject action's location proximate to Mattituck Creek, matters related to coastal process become important. Issues such as storm water runoff from site, waste water discharge and the treatment of nitrogen containing effluent, periodic tidal flooding and ground water swelling are particular for this site and application. Moreover, the principles of`Climate Change' put[] forth the notion of rising seas level, more frequent and severe and frequent storm events including more violent storm surges." Id. Under "Proposal Details / Overview," the County report notes the following facts that are highly significant to these flooding, coastal resiliency, storm surge, sea level rise, climate change-related, and water pollution issues, impacts, and concerns: County Admin. Code §A14-25(D)(2)provides in full: "If the Planning Commission renders a report recommending changes in a proposed municipal zoning action and approving the action with such changes,the town or village that referred the proposal may,unless §A14-18 or A14-21 applies,amend the proposed action in accordance with the Planning Commission's recommendations and adopt it in the ordinary course of municipal business or decline to adopt any one of the recommendations of the Planning Commission and adopt the action as originally proposed,but only upon an affirmative vote of a majority plus one of the entire membership of the referring body in a resolution that explicitly sets forth its reasons for not adopting the Planning Commission's recommendations." 'County Admin. Code §A14-25(D)(3)provides in full: "If the Planning Commission renders a report disapproving a site plan,the town or village involved may,unless §A14-18 or A14-21 applies,approve the site plan as originally proposed,but only upon an affirmative vote of a majority plus one of the entire membership of the referring body in a resolution that explicitly sets forth its reasons for rejecting the Planning Commission's report." 5 "The subject property is within the 100 year and 500 year flood plain. The subject property is situated in a Federal Emergency Management Agency (FEMA) Federal Insurance Rate Map (FIRM) flood zone A with a base flood elevation set at 7 feet above mean sea level. Based on the extreme topographic change behind the existing buildings the flood zone stops at the existing retaining walls. The Sea, Lake and Overland Surges from Hurricanes (SLOSH) model applicable for the subject site demonstrates the subject property to be effected by surges from category 1 and 2 hurricanes at the existing marina and penetrating into the subject development site at the southern end." Id. at 3. Under "Staff Analysis," the report explains why the excavation of 130,000+ cubic yards of soil should not be permitted for this project in light of flooding, coastal resiliency, storm surge, sea level rise, climate change-related, and water pollution issues, impacts, and concerns and therefore, the site plan application should not be approved as proposed: "It is questioned by Suffolk County Planning Commission staff if the excavation and removal of approximately 130,000 cubic yards of soil off site is necessary. Best management practice for site design is to have balanced cut and fill for site development. No soils should he removed. This is not the case here [i.e.,as proposed by Strong's]. The intended excavation will create a howl on site where storm flood waters from Mattituck Creek will surge into. Details shown on plans prepared by Young and Young last revised Nov. 20 2018 and referred to the Suffolk county Planning Commission from the Town of Southold Planning Board show elevation of the finished excavation to be approximately 9 feet above mean sea level. Two feet above the base flood elevation and would be susceptihle, as are other areas of similar elevations, to surges and flooding from category 2 hurricanes in the least. . . . [T]he fact that there is proposed to be building Improvements and infrastructure in the created flood plain (excavation) will only set up a `repetitive economic loss' scenario for the boat storage building owners going into the future. It is not demonstrated in the referral materials to the Suffolk County Planning Commission from the Town of Southold Planning Board that there has been much consideration to the Climate Change/sea level rise, SLOSH or flood zone issues. [¶] . . . [C]onventional subsurface sewage disposal systems and onsite below grade storm water management structures are intended for the expansion of the proposed boat storage area. Details shown on plans prepared by Young and Young last revised Nov. 20, 2018 and referred to the Suffolk county Planning Commission from the Town of Southold Planning Board suggests that the elevation of the water 6 table during normal groundwater conditions would be 3 feet below the bottom of the drainage rings. Test hole data from only two test holes provided on the plans referred to the Commission noted above show depth to water to be 6.4 feet to 7.6 feet below existing grade. It is not clear that, as designed, the existing waste and storm water systems would function during elevations of the groundwater table due to extreme climatic events." Id. at 4-5 (emphasis added). At its public meeting, the Suffolk County Planning Commission, by an 11-1 vote, "resolved to generally agree with the staff report." Suffolk County Planning Commission, April 1, 2020 Minutes ("Planning Commission Minutes,"Attachment B, hereto) at 4. The analysis of the Suffolk County Planning Commission staff, agreed with by the Commissioners, is highly pertinent to the Planning Board's site plan review. By excavating a 4.59-acre hillside near Mattituck Creek, and thereby lowering the grade of what is now an upland forest from 50+AMSL to —10 AMSL, the applicant would, in the County's words, "create a bowl on site where storm flood waters from Mattituck Creek will surge into,"making this "created flood plain"highly susceptible to flooding and storm surges. The deep excavation will also dramatically reduce or eliminate the needed separation between groundwater and the wastewater and storm water systems, preventing them from functioning properly during elevations of the groundwater table. (While the report refers to conventional septic systems, that same is true for I/A systems, which reduce nitrogen but also discharge to the vadose zone directly above the groundwater table.) The applicant's proposal represents the very antithesis of coastal resiliency and proper planning for sea level rise, flooding, and the other anticipated impacts of climate change. While New York State and Long Island decisionmakers and communities are seeking to build away from the shoreline (or, for structures or infrastructure that must be at the shoreline, raising their elevation well above the flood zone), the applicant's proposal to lower the grade by 40+ feet, convert a hillside upland into flood plain, and locate new structures and equipment there in 2023 and beyond is an anachronistic absurdity. These environmental issues, which will prevent the Suffolk County Planning Commission from recommending approval of the project as proposed, are also some of the many reasons why the Planning Board should disapprove the application. Furthermore, the Suffolk County Planning Commission staff report explained that, unlike boat slips at marinas, the storage of boats is not a water dependent use, it is merely a water related use, which need not be located at or near at location Strong's proposes: "The proposed use on site is consistent with water related uses though not water dependent due to the fact that hoat storage can he accomplished inland." 7 As indicated above `boat storage' is not a water `dependent' use. While `related' to water, boat storage is often accommodated inland away from the waterfront. It is the belief of staff that storage of hoats on site is not essential . . . ." County Report at 4. County Planning Commission staff noted further, that "[b]uilding at the existing grade [would] lessen[] the repetitive economic loss concern and also address[] the functionality of the waste and storm water systems proposed." Id. at 5. However, as Strong's DEIS has made clear the project cannot simply be modified to build the proposed yacht warehouses at the existing grade at same location proposed because the size and weight of these mega-yachts prevent them from being transported via traditional boat trailer and vehicle, yet the 85-ton travel lift is also not capable of transporting them from Mattituck Inlet to buildings located up a steep slope 50 or more feet above the water. See, e.g., DEIS p. xliii ("the large boats cannot be transported via road (either internally at SYC or public road)because the length and weight of such boats require the vessels to be lifted directly from the water and hauled via the 85-ton travelift on relatively flat grades") (emphasis added); see also id. at ii, 5-6. Furthermore, building the proposed structures at the existing grade would cause the destruction of the fragile, coastal oak-beech forest that provides valuable habitat to many important species. Thus, such alternative would not address those critically important adverse impacts. Accordingly, implementing the County recommendation that "No soils should be removed" (County Report at 5)necessitates denial of the site plan application. At the conclusion of the County Report, the "Staff Recommendation"was that the Suffolk County Planning Commission should resolve in favor of"Approval of the Site Plan referral from the Town of Southold Planning Board . . . with the following condition[s]: "l. No excavated soil shall he removed off site. It is questionable if the excavation and removal of approximately 130,000 cubic yards of soil off site is necessary. The intended excavation will create a bowl on site where storm flood waters from Mattituck Creek will surge into. Building Improvements and infrastructure in the created flood plain(excavation)will only set up a `repetitive economic loss' scenario into the future for the boat storage building owners. 2. An alternative development approach shall be investigated in an expanded Full Environmental Assessment Form (FEAF) that would construct the proposed boat storage buildings in the same locations at or near the existing grade and not excavate. Building at the existing grade lessens the repetitive economic loss concern and also addresses the functionality of the waste and storm water systems proposed. See the adopted report of the Suffolk County Planning Commission for further details on this alternative." County Report at 6 (emphasis added). 8 At its April 1, 2020 public meeting, the Suffolk County Planning Commission did not take action on the referral because it found the referral, and the application, to be incomplete. Specifically, other than "resolv[ing] to generally agree with the staff report" (as noted above), "[a]fter deliberation the Commission . . . deemed the referral to be incomplete due to lack of information received. A motion was made by Commission member McCarthy and seconded by Commission member Anderson, vote to deem Incomplete"passed by an 11-1 vote of the Planning Commissioners. Planning Commission Minutes at 4. The minutes further explain the nature of the incompleteness: "Staff deemed the referral to be Incomplete and noted that the referral will not be reviewed until certain information is submitted through the offices of the municipal referring agency: At the time of Site Plan referral to the Suffolk County Planning Commission a full environmental quality review of the proposal shall be included that has further information pertaining to channel depths at the mouth and course of Mattituck Creek particularly in the off shore location creek-ward of the shoreline of Strong's Yacht Center. There is inadequate information regarding the typical type and size of boats to be serviced by the "yacht center" as a result of the proposed new boat storage buildings. Future referral material to the Suffolk County Planning Commission with respect to the Suffolk County Administrative Code Article XIV Section A14- 25 shall include facts as to the maximum beam, draft, weight and length of water craft that will be serviced at the marina after completion of the proposed boat storage buildings. There is inadequate information regarding the necessity to excavate soils at the subject location of the proposed action. Referral material to the Suffolk County Planning Commission with respect to the Suffolk County Administrative Code Article XIV Section A14-25 shall include an explanation of the need for the proposed elevation of the floor of the boat storage buildings. The Suffolk County Planning Commission would like further clarification on Town of Southold protection of wetland regulations with respect to issues of soil erosion and sedimentation from clearance, grading, excavation or other disturbance of steeply sloped soils to be held by retaining walls on adjacent areas to tidal wetlands." Id. at 3-4. On April 2, 2020, the Suffolk County Planning Commission sent the Planning Board(via the Town Clerk) a copy of the Commission's April 1, 2020 resolution and advised the Planning Board that "referral will not be reviewed until the [requested] information is submitted through the offices of the municipal referring agency. See Attachment C, hereto. (The resolution and its cover letter appear in the Town Laserfiche file.) 9 Additionally, on April 7, 2020, in response to a SEQRA coordination notice from the Town Planning Department, the staff of the Suffolk County Planning Commission included the preliminary staff comments on, and analysis of, the incomplete application from the County Report in a comment letter to the Planning Department. See Attachment D, hereto. (This letter also appears in the Town Laserfiche file.) Like the County Report, the County's comment letter states that "No soils should be removed." Accordingly, once there is a complete application that includes all of the information needed necessary by the Suffolk County Planning Commission, the Planning Board must submit it to the Planning Commission for its action and recommendations as required by the County Administrative Code and N.Y. General Municipal Law § 239-1. Presumably, a Final EIS will be necessary before this referral and County action can be accomplished. At that time, the Suffolk County Planning Commission's action, i.e., approval, disapproval, or approval with modifications and/or conditions (such as staff's recommendation that no excavation occur and no soils be removed), may dictate what decision the Planning Board can make on the site plan application. Moreover, the issues raised by the Suffolk County Planning Commission and its staff are all the subject of important plans, policies, and requirements under Town law, as discussed below. The Planning Board should follow the recommendation of County staff to prohibit excavation of the upland and the senseless and needless creation of a floodplain "bowl"next to Mattituck Inlet. 10 2. The Planning Board Should Disapprove the Application Because the Proposed Development Violates Purposes, Objectives, Considerations of Chapter 280, Article XXIV (Site Plan Approval) of the Town Code. Article XXIV (Site Plan Approval) of Chapter 280 (Zoning) of the Town Code sets forth, among other things, the purpose and objectives for Planning Board review of proposed site plans in the Town of Southold. The overarching purposes of Article XXIV are to "encourage good design and to: Protect the established character and value of the adjoining properties, both public and private, and of the neighborhood in which they are located; Secure safety from fire,flood and other dangers and provide adequate light, air and convenience of access; and Mitigate the environmental impacts of new development on the land, air and water resources." Town Code § 280-128 (emphasis added). Furthermore, all developments must be consistent with the Comprehensive Development Plan, which provides extensive further considerations the Planning Board must follow. Town Code § 280-129(1). More specifically, the Town Code states that the Planning Board, when considering site plans, "shall take into consideration the public health, safety and welfare, the economic impact and the comfort and convenience of the public in general and the residents of the immediate neighborhood in particular." Town Code § 280-129. Additionally, it gives high priority to: "(1) The conservation of all natural features on and adjacent to the site, including but not limited to natural drainage courses, fresh- and saltwater wetlands and marshes, dunes, hluffs, beaches, escarpments, woodlands, large trees, unique plant and wildlife habitats,flood hazard areas and wildlife breeding areas; (2) The protection of groundwater and surface water from contamination by pollutants; and(3) The protection of air quality." Town Code § 280-129(D) (emphasis added). Regarding grading and drainage, "all site developments shall respect existing grades on site and on adjoining sites to avoid unnecessai v excavation or filling and . . . all stormwater runoff generated on site [must] be retained on site in an environmentally acceptable manner." Town Code § 280-29(H) (emphasis added). The proposed project offends the very purpose and objectives of the Site Plan Approval article and violates many of the high priority considerations. The Town Code uses the term "shall" to mandate full consideration by the Planning Board of the goals and objectives listed in Article XXIV when reviewing and taking action on a site plan. Thus, the environmental and related factors set forth in Article XXIV must be considered in the context of all site plan reviews in the Town, apart from any state law requirements under SEQRA. As discussed above in the context of the County requirements and below in the DEIS section of these comments, the proposed site plan, if approved and implemented, would cause numerous highly significant adverse environmental impacts on the site, the neighboring preserve, the Town, and other communities in Suffolk County. These same impacts warrant disapproval under Chapter 280, Article XXIV of the Town Code. Excavating 135,000 cubic yards of sand from a hill within the 100-year floodplain, and lowering the grade by 40+ feet obviously does not respect existing grades on site and avoid unnecessary excavation. It would also put the property, 11 its structures, infrastructure, and the boats stored there (including fuel and other hazardous substances) at substantially higher risk of flooding. Destruction of a valuable, fragile forested area by clear-cutting approximately 634 mature trees and eliminating the habitat they provide obviously does not conserve all natural features on and adjacent to the site, including but not limited to woodlands, large trees, unique plant and wildlife habitats, and wildlife breeding areas on the site and at Mill Road Preserve (which will experience adverse forest edge effects). Lowering the grade by 40+ feet and thereby placing wastewater and stormwater systems close to the water table does not protect groundwater and surface water from contamination by pollutants. Accordingly, the Planning Board should find that the proposed site plan is not consistent with the purpose and objectives set forth in Town Law §§ 280-128, 280-129(D), (H), and(J), among others and should deny the site plan application on that basis. 12 3. The Planning Board Should Disapprove the Application Because the Project Is Inconsistent with Other Purposes, Objectives, and Requirements of the Zoning Chapter of the Town Code. In addition to Article XXIV regarding site plans, the proposed project is also inconsistent with other aspects of Chapter 280. The purposes of the Zoning Chapter include, among others, "enhancement of the appearance of the Town of Southold as a whole, particularly its open and rural environment," "development of land in such a way as to produce the most appropriate use of lands . . . and to preserve the natural and scenic qualities of open lands," "protection of the subsurface water supply and surface waters," and "protection and enhancement of the coastal environment." Town Code § 280-2. The proposed project is inconsistent with all of these purposes. Article XIII of Chapter 280 explains that the "purpose of the Marine II (MII) District is to provide a waterfront location for a wide range of water-dependent and water-related uses, which are those uses which require or benefit from direct access to or location in marine or tidal waters and which, in general, are located on major waterways, open bayfronts or the Long Island Sound." Town Code § 280-54. Subject to site plan approval by the Planning Board, boatyards for the storage of boats are a permitted use in the MII district. Town Code § 280-55(a)(5). But the proposed project is not consistent with this purpose or the permitted uses for the reasons explained below. Town Code § 280-111, entitled "Prohibited uses in all districts,"prohibits the storage of more than 20,000 gallons of petroleum products within 1,000 feet of tidal waters or tidal wetlands: "Notwithstanding any other provisions of this chapter, storage facilities with a total combined capacity of more than 20,000 gallons, including all tanks, pipelines, buildings, structures and accessory equipment designed, used or intended to be used for the storage of gasoline, fuel oil, kerosene, asphalt or other petroleum products, shall not be located within 1,000 feet of tidal waters or tidal wetlands." Town Code § 280-111(H). The proposed project is prohibited by this provision because the yacht storage buildings (alone or cumulatively with other petroleum products on site)would store more than 20,000 gallons of fuel within 1,000 feet of tidal waters and tidal wetlands. The Planning Board should find that the proposed project is inconsistent with the purposes of the Town's Zoning Chapter and inconsistent with particular sections for the following reasons: First, it appears that the boundary between the R80 district and MII district(previously, a Business district) on this site was inadvertently and erroneously moved 380 feet to the west in 1989 when the MII designation was first created. On this issue, please see Attachment E, hereto, which is an April 22, 2022 letter with attachments to the Town Board, with copies to the Planning Board and Zoning Board of Appeals, from the Boscola family, whose home and residential lot off of West Mill Road is surrounded on all four sides by the Strong's property, which details the relevant zoning history of the site since 1957. 13 The current zoning was put into place in 1989 with the adoption of Local Law No. 1- 1989; since then, little change has been made. See Comprehensive Plan, Ch. 3, p. S. When the Town redrew its zoning map in 1989, the boundary between the R80 and MII zones of SCTM #1000-106-13.4, located along the western side of Mattituck Creek, was shifted westward approximately 380 feet from its pre-1989 location. There is no record of why this westward shift of the boundary occurred. It appears that the map was erroneously drawn with the boundary inadvertently shifted 380 feet to the west. As shown in the November 1989 letter from the Planning Board that is reproduced in Exhibit V to the April 2022 Boscola letter, the Planning Board understood nearly one year after the passage of Local Law No. 1 that the R80 zone was still intact on the portion of the property that Strong's storage buildings are proposed to be built. Thus, the boundary did not shift westward with the adoption of Local Law No. 1. Likewise, a Survey/Subdivision Map excerpt from Young & Young—4th revision, last dated August 17, 1989, and marked as received by the Planning Board on February 26, 1990, shows the same thing. See Exhibit VI to the April 2022 Boscola letter contained in Attachment E, hereto. Furthermore, it is unlikely that the Town Board intended to include the upland portion of the site, up a steep incline from the waterfront, within the RII district rather than the R80 district. Notably, the other properties that are zoned MII do not include such uplands, but only relatively narrow swaths of land along the shoreline. Where there is uncertainty as to the location of a district boundary or the meaning of a provision of the Zoning Chapter, the Town Code authorizes the Planning Board to request an interpretation and determination from the Zoning Board of Appeals ("ZBA"). Pursuant to the Town Code § 280-146(D)(2), on request by any Town board, the ZBA can make a determination of the exact location of any district boundary shown on the Zoning Map.' Accordingly, along with these comments we are submitting a separate request that the Planning Board ask the ZBA to determine the exact location of the R80/MII boundary on SCTM #1000-106-13.4. If the ZBA determines, as we believe it should, that the land on which the yacht storage buildings are proposed is actually in an R80, rather than an MII, district then the site plan cannot be approved because boat storage facilities are not a permitted use in an R80 zone. Town Code § 280-13. Second, even assuming that the land on which the yacht storage buildings are proposed is in an MII district, the proposed project is inconsistent with the purposes of that district. As noted above, the "purpose of the Marine II (MII) District is to provide a waterfront location for a wide range of water-dependent and water-related uses, which are those uses which require or benefit from direct access to or location in marine or tidal waters and which, in general, are located on major waterways, open bayfronts or the Long Island Sound." Town Code § 280-54. The upland portion of the site, however, does not currently have direct access to marine or tidal waters for the use that Strong's proposes. As the DEIS makes clear, the size and weight of the mega-yachts that Strong's hopes to store prevents them from being transported via traditional boat trailer and 5 Specifically, Town Code §280-146(D)provides that the Zoning Board of Appeals"shall have the following powers: . . . Interpretations: . . .on request of any Town officer,board or agency,to. . . : (1)Determine the meaning of any provision in this chapter or of any condition or requirement specified or made under the provisions of this chapter[or] (2)Determine the exact location of any district boundary shown on the Zoning Map." 14 vehicle, yet the 85-ton travel lift is also not capable of transporting them from Mattituck Inlet to buildings located up a steep slope 50 or more feet above the water. See, e.g., DEIS p. xliii ("the large boats cannot be transported via road (either internally at SYC or public road)because the length and weight of such boats require the vessels to be lifted directly from the water and hauled via the 85-ton travelift on relatively flat grades") (emphasis added); see also id. at ii, 5-6. The stated purposes of the MII district, i.e., to provide a waterfront location for uses which require or benefit from direct access to marine or tidal waters, are not served where the location is an upland forest on steep slopes that is not capable of receiving the intended yachts at its current elevation(with or without modest grading), but must instead be radically transformed from an upland forested hillside to an excavated flood plain bowl. The MII district is designed to serve only those marine-related uses that can be viably located on a site that can accommodate them without massive changes to the physical landscape. Land zoned MII should not need to be completely transformed for a water related use to be achieved. Third, the Planning Board should find that the proposed project violates Town Code § 280-111(H) because the 88 yachts that Strong's proposes to store in the proposed buildings would contain more than 20,000 gallons of fuel within 1,000 feet of tidal waters. As noted at the June 5, 2023 public hearing, the fuel tanks in those boats must be stored full. To the extent that the Planning Board harbors any doubt about the interpretation of Town Code § 280-111(H) and its application in this context, we have included in the separate document submitted herewith a request that the Planning Board, pursuant to Town Code § 280- 146(D)(1), ask the ZBA to determine the meaning of Town Code § 280-111(H). 15 4. The Planning Board Should Disapprove the Application Because the Project Is Inconsistent with the Comprehensive Plan. Chapter 280, Article XXIV of the Town Code provides that developments proposed in a site plan cannot be approved unless they are found to be consistent with the Comprehensive Plan. Town Code § 280-129(J).6 The DEIS's claim that the development is consistent with the Comprehensive Plan is obviously erroneous in that its consistency discussion cherry picks only a few very general Comprehensive Plan policies, while omitting any mention or analysis of the major goals and objectives that the project is plainly inconsistent with. The Comprehensive Plan's Vision Statement, which guides the entire process of comprehensive planning and consistency, states: "Future planning shall be compatible with existing community character while supporting and addressing the challenges of continued land preservation, maintaining a vibrant local economy, creating efficient transportation, promoting a diverse housing stock, expanding recreational opportunities and protecting natural resources." Comprehensive Plan, Ch. 1. The proposed development is inconsistent with the Vision Statement because it would not protect community character, would develop land providing valuable habitat rather than preserve it, destroy important natural resources, harm recreational opportunities in the neighboring preserve, and add little to the local economy. Beyond the Vision Statement, the Comprehensive Plan is comprised of 13 chapters, each of which has its own goals and objectives. Additionally, each hamlet has specific goals that are incorporated in the Comprehensive Plan. The applicant's proposal is plainly inconsistent with many of these specific goals and objectives, as discussed below. Chapter 3: Land Use and Zoning The DEIS's discussion of purported consistency with the Land Use and Zoning chapter of the Comprehensive Plan is plainly erroneous. The DEIS touches on only 3 out of 13 goals, makes little to no mention of the objectives used to accomplish those goals, and provides cursory and non-credible arguments, highlighting only potential positives and glossing over the negative aspects of the project. It should also be noted that some of goals have entire chapters associated with them and, to the extent that the DEIS addresses them at all, it does so in relation to another chapter but not as a part of the land use goals. These are the goals in the Land Use and Zoning chapter of the Comprehensive Plan that are applicable to this proposed action: Goal 2: Review and Update Zoning Town-Wide Goal 4:Improve Traffic Congestion and Safety Additionally,pursuant to N.Y.Town Law§272-a(11)(a),all town land use regulations must be in accordance with the comprehensive plan. Moreover,N.Y. Town Law§263 provides that zoning ordinances must be made in accordance with a comprehensive plan. 16 Goal 5: Protect the Town Character Goal 6: Protect and Enhance the Town's Natural Resources and Environment Goal 7: Economic Prosperitv Goal 10: Continue to Preserve Farmland and Open Space Goal 12: Prepare the Town for Natural Hazards Goal 13: Provide Qualitv Parks and Recreation Opportunities in the Town The Planning Board should find that the proposed project is inconsistent with all of those goals and deny the application on that basis, as discussed for each Land Use and Zoning goal here (grouped by topic, rather than in number order): Goal 2: Review and Update Zoning Town-Wide The main aim of this goal is to "ensure that the existing zoning is appropriately located, uses are of the appropriate scale and intensity for the location, and all are consistent with the other goals of this plan." Comprehensive Plan, Ch. 3, p. S. As discussed above, the purported location of the MII district on this site is not appropriately located because it is an upland area separated from the waterfront by steep slopes. Because of that, the use is not consistent with the other goals in the plan. Asking the ZBA to determine the precise, proper location of the MII district boundary would further this goal. Goal 6:Protect and Enhance the Town's Natural Resources and Environment The proposed project is inconsistent with the goal to protect and enhance the Town's natural resources and environment. The plan explains that "[t]he importance of managing and preserving Southold's natural resources while promoting responsible user experiences is paramount in maintaining the quality of life within the Town." Comprehensive Plan, Ch. 3, p. 14. The plan's associated objectives are: (i)protecting groundwater and surface water quality and quantity; and (ii) protecting land- based natural resources including agricultural soils and natural habitat for wildlife. Id. Chapter 6, "Natural Resources & Environment" goes into more depth on the goals and objectives. Clear-cutting more than 600 fully-grown trees in a fragile coastal oak-beech forest that provides valuable habitat for a number of species, including threatened and endangered species and other species of special concern, is inconsistent with these goals and objectives. So is lowering the grade and thereby reducing the separation between wastewater and stormwater systems and the groundwater table. Planting 95 new (young)pitch pine trees obviously does not render the project consistent with this aspect of the Comprehensive Plan. 17 All of these unanswered questions and discrepancies illustrate that the DEIS could not have possibly claimed the proposed action would have no significant impact on groundwater quality. It is clear that much revision is needed, and a much more thorough analysis is needed to determine consistency with this goal. Goal 10: Continue to Preserve Farmland and Open Space The proposed project is inconsistent with the goal to continue to preserve farmland and open space. Goal 10 is a highly relevant goal (which the DEIS completely avoids mentioning). The Comprehensive Plan provides that "Southold's character is created in large part by its open spaces, including farmland, natural lands, and parks. Protecting these assets has long been a goal of the Town. Land preservation priorities include retaining large blocks of uninterrupted farmland, and preserving environmentally sensitive lands and woodland. Lands for recreation and public gathering are also important." Comprehensive Plan, Ch. 3, p. 14. Importantly, the Comprehensive Plan unambiguously says the character of Southold is created in large part by its open spaces. The DEIS asserts that the character of the area will be maintained, but this is obviously not the case where an entire 4.59-acre hill would be excavated and replaced with 1- acre-plus warehouses situated in an enormous "bowl" in place of the upland forest that stretches over the environmentally sensitive Mill Road Preserve and portions of the property. The portion of the forest on the preserve will also suffer negative "edge effects" (i.e., trees and other habitat that were nearer to the center of the forest become the edge of the forest, where they are less protected and do not thrive.) The applicant would have the Planning Board entirely disregard preservation priorities like preserving environmentally sensitive lands and woodlands, and preserving lands for recreation. The Planning Board should not do so. Goal 13:Provide Quality Parks and Recreation Opportunities in the Town The proposed project is inconsistent with the goal to provide quality parks and recreation opportunities. The Comprehensive Plan discusses the importance of maintaining its existing parklands. The proposed project is clearly inconsistent with this goal as it will adversely affect Mill Road Preserve. Goal 12:Prepare the Town for Natural Hazards The proposed project is inconsistent with the goal to prepare the Town for natural hazards. Another critically important land use goal (also completely disregarded by the DEIS) is Goal 12. The Comprehensive Plan recognizes that"Southold Town is subject to natural hazards, 18 including hurricanes, flooding, and sea level rise, which can imperil human lives, property, and the environment." Comprehensive Plan, Ch. 3, p. 15. As the Suffolk County Planning Commission and its staff explained in their 2020 report, lowering the elevation from 50+ feet AMSL to —10 feet AMSL in an area within the 100-year flood plain that is susceptible to hurricanes and storm surges clearly does not prepare the Town for natural hazards. To the contrary, the project proposes to create a constructed flood plain "bowl" into which the waters of Mattituck Creek will flow during large storms and then to locate new structures, infrastructure, equipment and yachts filled with fuel into that flood plain which is precisely the opposite of proper preparation for nature hazards, climate change, and sea level rise. This proposed project would make the area more susceptible to hurricanes, flooding, and sea level rise which is plainly inconsistent with this goal. Goal 5:Protect the Town Character The proposed project is inconsistent with the goal to protect the Town character. As noted above, the overarching goal of the Comprehensive Plan is that Southold should retains much of its small-town character and maintains a high quality of life by preserving and increasing the Town's scenic, cultural, and natural resources. Chapter 5 of the Comprehensive Plan, "Community Character" goes into more detail regarding goals and objectives. The DEIS states that "The subject property has been an established maritime use for 60 years and is zoned accordingly." DEIS p.169. It further states that other Marine II districts nearby have similar characteristics of the subject property. Both of those assertions are misleading half-truths that miss the point. While part of the subject property has been zoned and used for maritime purposes for decades, the part of the property that would be developed under the site plan, the hillside at 50+ feet AMSL, is not presently used, and has never been used, for maritime purposes. It is forest used by numerous species as habitat. It was zoned RSO and should still be zoned RSO due to its upland location (as discussed above). Moreover, the other MII districts that are located nearby do not have a similar rise in elevation and are more appropriately situated for MII-permitted land uses. The DEIS also claims that the "proposed action would expand in line with the existing scale of development . . . and would not be visibly obtrusive to users of Mattituck Creek." DEIS p. 169. These dubious assertations are also unsupportable. The proposed one-acre-plus structures will likely be among the very largest in the entire Town, and the visual simulations used to demonstrate how the Project "would blend with the existing maritime-use buildings on- site" are, as noted in comments by others, such as Joel Klein, defective and misrepresentative of the post-construction views of the project site. Those simulations need to be redone properly in an SEIS or the FEIS. The proposed project is inconsistent with this goal as it will not maintain the Town's small-town character and high quality of life by preserving and increasing its scenic, cultural, and natural resources. 19 Goal 4:Improve Traffic Congestion and Safety The proposed project is inconsistent with the goal to reduce traffic congestion and improve traffic safety because it would require more than 8,000 truck trips to haul away 135,000 cubic yards of earth from the excavated hillside. The Comprehensive Plan states: "Traffic congestion and pedestrian safety are priority issues for residents. Increases in tourism have meant an increase in traffic in Southold. Speeding, whether it be through a hamlet center or down a quiet side street, is a complaint heard from residents all over Town." Comprehensive Plan, Ch. 3, pp. 13-14. Two objectives used to achieve that overarching goal are: "Find solutions to the traffic problems experienced during the summer and fall busy seasons" and "Protect the safety of pedestrians by finding ways to calm traffic, especially where roads such as State Route 25 pass through areas with a concentration of pedestrian activity, such as hamlet centers." Id. p. 14. The DEIS makes no mention of this goal or whether the proposed project is consistent with this goal. Other public commenters have discussed the myriad shortcomings in the DEIS's transportation analysis. The Planning Board should find that the proposed project is inconsistent with the Comprehensive Plan's traffic goals due to the extremely large number of large truck trips to and from the site, through the Town and Riverhead, that it would require. Mattituck/Laurel Land Use and Zoning Goals/Issues The proposed project is inconsistent with the hamlet-specific goals and objectives. The Comprehensive Plan, Chapter 3, also has the individualized goals for each of the hamlets in the Town of Southold. "Mattituck/Laurel residents have expressed a vision that includes preserving farmland and open spaces, retaining the character of the hamlets, and improving traffic safety and pedestrian access in and near the hamlet center." Comprehensive Plan, Ch. 3, p. 33. There is no plausible reading of the vision for Mattituck that the proposed project could be consistent with. The proposed project damages open spaces, alters the character of the hamlet, and worsens traffic safety. The DEIS also makes no mention of this hamlet- specific goal. For the same reasons that the project violates the Town-wide goals and objectives, the Planning Board should find that it is inconsistent with the hamlet-specific vision and goals. Goal 7: Economic Prosperity The purpose of this goal is to "facilitate the growth of existing businesses, and encourage new businesses for stable and sustainable employment." Comprehensive Plan, Ch. 3. p. 14. Economic prosperity is covered more in depth in Chapter 7 of the Comprehensive Plan. 20 In the context of this goal, the DEIS again makes the incorrect and misleading claim that the maritime use has existed on site for over 60 years, when the site of the yacht warehouses has not been devoted to such use. DEIS p. 171. A main reason why it has not been used for yacht storage or other maritime use in the past is because the land is not suitable for such use. It is only through the applicant's proposal to transform the topography and lower uplands to near-sea level that it can be rendered suitable for the purpose Strong's proposes. The Comprehensive Plan does not intend for the landscape to be radically altered and a 4.59-acre area of hillside to be hauled away in order to achieve a modicum of economic benefit. Nor would the proposed project do much, if anything, to boost the local economy. The DEIS claims that this project seeks to "meet an unmet demand for indoor heated winter storage of yachts on the east end of Long Island." DEIS p. 171. However, the DEIS has not conducted a market study to demonstrate the purported need and are making that assertion without support. (More on this below in the context of SEQRA). The DEIS also overstates the potential benefit, if any, of the proposed project on job creation and tax revenues. DEIS p. 171. The DEIS states that 11 full-time positions are expected to be created, which is not a substantial number, especially compared to the enormous adverse environmental effects and the adverse effect on the community. Additionally, as noted by other commenters, "there will be only a minimal increase in net sales tax revenues to New York State. Property taxes during the first three years of Project operation will be a mere $32,234, and will not reach their maximum for ten years. The numerous large environmental impacts during construction, and the permanent damage to the natural environment that will remain after Project construction are not consistent with `maintaining a high quality of life, the environment and the unique character of the surrounding community."' See J. Klein Comments p. 50 of 327. Chapter 4: Transportation and Infrastructure For similar reasons, the proposed project is also inconsistent with many goals and objectives in the Comprehensive Plan's chapter on Transportation and Infrastructure. Transportation Goals: This chapter is similar to Goal 4 in the Land Use and Zoning Chapter. The DEIS's discussion of consistency for this chapter only addressed two out of five infrastructure goals and did not address any of the eight transportation goals. Three relevant transportation goals from Chapter 4 of the Comprehensive Plan are: Goal 1: Reduce Traffic Congestion During Peak Tourist Season; Goal 2: Reduce Future Traffic Congestion Due to Development; and Goal 3: Increase Pedestrian, Cyclist, and Traffic Safety. Comprehensive Plan, Ch. 4, pp. 18-21. For the reasons given above and in the comments of others, the proposed project is inconsistent with all of those goals. 21 Infrastructure Goals: Regarding the infrastructure Goal 1, the DEIS states "The proposed action would increase the total impervious surface area from 2.62± acres to 4.98± acres. Accordingly, there would be a resultant increase in the volume of stormwater runoff generated on the subject property." DEIS p. 171. Increasing impervious surfaces and stormwater runoff is not consistent with the infrastructure goal. Discussing Goal 2, the DEIS states: "The proposed action includes the replacement of an existing individual on-site sanitary system with an I/A OWTS . . . the proposed action is in keeping with this goal of the 2020 Comprehensive Plan." DEIS p. 171. However, as another commenter noted, "the replacement of the existing on-site sanitary system with an I/A OWTS, can be accomplished independent of the Project. Project approval is not necessary to foster this goal." J. Klein Comment p. 50 of 327. It is certainly not necessary, and not a suitable trade-off, to destroy a forested hillside and reduce the distance between water infrastructure and the groundwater table, in order to replace conventional sanitary systems with I/A OWTS. That should be done just about everywhere, whether or not there is new development. Chapter 5: Community Character The proposed project is also inconsistent with many goals and objectives in the Comprehensive Plan's chapter on Community Character. Goal 1:Protect Scenic Resources The Comprehensive Plan's first goal in the Community Character chapter is to "Protect Scenic Resources," explaining further that "the Town's scenic quality is one of its most important economic and social assets of the Town." Comprehensive Plan, Ch. 5, p. 1. Once again, the DEIS completely avoids even mentioning this goal. The Comprehensive Plan seeks to "avoid or minimize the impacts of structures or activities that introduce visual interruptions to important scenic resources." The proposed project is the antithesis of this goal. Its visual interruption to the forest that spans Mill Road Preserve and the property and to the area surrounding Mattituck Creek will be adverse and significant. Goal 2:Protect Cultural Resources Objective 2.4 (B) and(C) in Chapter 5 provide, respectively: "Protect the character of historic agricultural and maritime areas by maintaining appropriate scales of development, intensity of use, and architectural style;" "Preserve and encourage traditional uses defining the agricultural and maritime character of the area." Comprehensive Plan, Ch. 5, p. 10 (emphasis added). While Mattituck Creek is an important maritime area, this proposed project is not consistent with the goal and objectives stated above. The proposed structures will be located in a forested area elevated 40+ feet higher than the rest of the Marine II district. In order for the 22 project to go forward as planned, the removal of 4.59 acres of material and removal of more than 600 trees is needed. That is not "maintaining appropriate scales of development." Additionally, "the NYS Office of Parks, Recreation and Historic Preservation (OPRHP) has reviewed the proposed action and a determination of no impact upon cultural resources (historic and archaeology)has been issued." DEIS p. 172. As another commenter has explained, "The statement in the DEIS is untrue. OPRHP has expressed concern about possible impacts to historic structures and has requested the Applicant to prepare a Construction Protection Plan for the Old Mill Inn and the historic Water Tower on West Mill Road. As discussed elsewhere in these comments, the plan prepared by the Applicant is inadequate. It has not been submitted to OPRHP as of April 2023. OPRHP has not reviewed, or been asked to review, the Project's impacts to historic properties located along the Riverhead portions of the Project's truck route." J. Klein Comments p. 51 of 327. Goal 3:Preserve Quality of Life in Residential Neighhorhoods "The DEIS describes the Project's plans to mitigate impacts from construction traffic, site lighting, noise, and visual impacts." However, "[t]he very fact that mitigation of these impacts is required, demonstrates that the Project is not consistent with the goal to `Preserve Quality of Life in Residential Neighborhoods.' The inadequacy of the proposed mitigation measures has been detailed in these (i.e., Joel Klein's) comments. The quality of life in the residential neighborhoods abutting the Project and along the Project truck route will be significantly damaged." J. Klein Comments p. 51 of 327. Goal 4:Protect Natural Heritage The Comprehensive Plan describes natural heritage, in the context of this chapter, stating that it "consists of landscapes and waterscapes of outstanding universal value in terms of ecology, conservation, or natural beauty. Natural Heritage includes not only the typical natural resources of flora, fauna, and agricultural soils, but also the idea of the working landscape." Comprehensive Plan, Ch. 5, p. 12. Objectives 4.1 and 4.2 are particularly relevant to this proposal: "Objective 4.1 Elevate and preserve the Town's natural heritage through preservation of the working landscapes and waterscapes and the people who interact with them. A Protect agricultural lands in Southold Town. B Provide for and support the commercial and recreational use of Southold Town's marine ecosystems. 23 C I Audit the Southold Town Code to ensure consistency with adopted plans and programs. D I Amend current regulations to further support agriculture and maritime uses. E I Identify and preserve the Town's flora and fauna." "Objective 4.2 Protect and restore ecological quality throughout Southold Town. A I Protect vulnerable fish, wildlife, and plant species, and rare ecological communities. B I Promote sustainable use of living marine resources in Long Island Sound, the Peconic Estuary, and Town waters. C I Avoid adverse changes to the Long Island Sound and the Peconic Bay ecosystems that would result from impairment of ecological quality." Comprehensive Plan, Ch. 5,p. 13. The DEIS claims that the maritime use is consistent with these objectives. It is not. Transforming the upland topography and destroying its ecological functioning in order to facilitate boat storage is not consistent with these aspects of the Comprehensive Plan. The Comprehensive plan, in Objective 4.1, highlights the importance of both supporting use of the marine ecosystems and preserving the Town's flora and fauna. It is nonsensical that this proposal could achieve that objective when construction of the proposal would destroy the Town's flora and fauna. The proposal is clearly inconsistent with these objectives. Goal 5:Protect the Unique Character of the Individual Hamlets The DEIS claims that the proposed action is consistent with this goal, but the applicant misunderstands the goal. It is without question that the Mattituck Inlet and Creek are an important maritime area, as stated many times in all of the relevant land use plans. All of the plans seek to support suitable, sustainable, environmentally-friendly maritime uses. But just because the proposed action is a water-related use does not mean it is consistent with the goals promoting maritime activity. This proposal, in order to be achieved, would transform and devastate the characteristics of the land, making it more susceptible to flooding, harming environmentally sensitive areas, and adversely affecting the public use of Mill Road Preserve. This is not consistent with the goals of the Comprehensive Plan, even with regards to "supporting maritime use." 24 Chapter 6: Natural Resources & Environment The Comprehensive Plan includes a total of 15 goals for Natural Resources & Environment chapter, including 5 water resource goals and 10 land resource goals. As discussed in various parts of the Comprehensive Plan, preserving and managing the natural resources of the Town is essential to maintaining quality of life. Comprehensive Plan, Ch. 6, p. 1. For the reasons discussed above, the proposed project is not consistent with these goals. And, as discussed below, the DEIS has not conducted a proper analysis of the significant adverse impacts on natural resources and the environment. Water Resources: Goal 1: Conserve Water Quantity The DEIS claims, incorrectly, that the project is consistent with this goal. It claims "the total potable water demand of SYC . . . would be served entirely by the SCWA through a water main extension to be funded by SYC. This would decrease the amount of water being withdrawn on-site via private wells. This water main extension would give the seven property owners, identified in Table 12 and discussed in Section 2.2.1 of this DEIS, with the ability to connect to public water but remain served by private wells the opportunity to connect to SCWA and further decrease the amount of water being withdrawn from the aquifer." DEIS p. 175. However, according to Joel Klein and other local residents, the proposed water line has already been constructed. This construction occurred independent of whether the proposed action will be approved. Therefore, the proposed action will not contribute to a reduction in groundwater drawdown. Moreover, "only two property owners will be able to connect to the new water line, one of whom is the Applicant." J. Klein Comment p. 53 of 327. Goal 5:Protect Freshwater and Marine Habitats As stated in the Comprehensive Plan, the "NYSDEC regulates tidal and freshwater wetlands at the state level pursuant to Article 24 and Article 25 of the Environmental Conservation Law." Comprehensive Plan, Ch. 6,p 16. Accordingly, "any proposed development activities near these wetland systems require permits from both the NYSDEC Bureau of Environmental Protection(for freshwater wetlands) and the Southold Board of Trustees." Id. The DEIS states that "the proposed action has also been reviewed and approved through the issuance of a Tidal Wetlands Permit from the NYSDEC." DEIS p. 176. However, SEQRA prohibits responsible agencies like DEC from issuing a tidal wetlands permit(or any other discretionary permit)unless and until the lead agency (the Town of Southold Planning Board) has completed a FEIS and DEC has issued its SEQRA findings statement. NYSDEC acted See, e.g., 6 NYCRR§§ 617.3(a) ("No agency involved in an action may. . . approve the action until it has complied with the provisions of SEQR."), 617.11(c) ("No involved agency may make a final decision to. . .approve 25 outside of its legal authority and issued a permit prematurely. As the Final Scope indicates, DEC may need to rescind and reconsider or otherwise modify the prematurely issued permit. Moreover, there is no mention if the applicant has received the permit from the Southold Board of Trustees, who also must wait until the FEIS is completed. The fact that the proposed action has a premature tidal wetlands permit, issued prior to SEQRA compliance, does not mean that the project is consistent with this goal in the Comprehensive Plan. Objective 5.1 of the Comprehensive Plan is to "identify, protect and enhance quality of coastal habitats." Comprehensive Plan, Ch. 6, p. 18. To that end it states, "Large areas of adjacent lands that previously provided a buffer for wetlands have been physically lost to development or functionally lost through changes in land use, including inappropriate or incompatible landscaping. These losses and impairments to the wetlands and their functions cumulatively have impacted the Town's ecosystem." Id. Moreover, "adjacent lands that provide buffers to wetlands must be maintained and enhanced, and where appropriate, re-established. These buffers are necessary to ensure the long-term viability of the Town's wetlands." Id. This proposed action would destroy another buffer for wetlands especially considering the excavation of the hill would be an "inappropriate [and] incompatible" change in the land. The excavation of an important buffer area, the removal of over 600 trees and vegetation, and the large-scale construction in an environmentally sensitive area is clearly not consistent with this goal. Land Resources: Goal 1:Protect Soils and Geologic Features The Comprehensive Plan lists three objectives that are particularly relevant to determining the proposed action's consistency with this goal. They are as follows: "Objective 1.2: Avoid environmentally sensitive soils in the development design process. Objective 1.3: Continue to work with the Natural Resource Conservation Service in soil conservation practices. Objective 1.4: Preserve the unique geologic features of the Town through avoidance and/or minimization of impacts from development and natural disasters." Comprehensive Plan, Ch. 6, p. 24. The DEIS states: "While the landform would be modified, the proposed development includes structural stabilization to correct existing slope failure due to the placement of dredge material. As indicated in Section 2.1.3 of this DEIS, mitigation measures have been incorporated into the proposed design, including erosion and sedimentation controls that would be undertaken or disapprove an action that has been the subject of a final EIS,until the time period provided in subdivision(a)of this section has passed[i.e.,a reasonable time period(not less than 10 calendar days)after completion of the FEIS] and the agency has made a written findings statement."). 26 prior to and during construction. Also, site clearing, grubbing, and stripping would be performed during dry weather conditions to prevent excessive rutting and the mixing of organic debris with the underlying soils." Joel Klein noted that "[t]he existing slope face where slope failure is occurring will cease to exist as part of the Project. The existing slope face will be removed. The proposed `structural stabilization to correct existing slope failure' is the construction of an 875 ft-long, 30+ foot-high concrete retaining wall in an entirely different location. As noted in other comments, there is almost no basis for assuming that the existing slope failure is the result of previous placement of dredge material." J. Klein Comment p. 53 of 327. Whatever the source of the slope failure, "[t]he project would remove over 181,000 tons of sand and soil from an area of about 5 acres wide and up to 60 feet tall, thereby removing a bluff and surrounding land that provides protection to inland areas from storms and sea level rise." North Fork Audubon Society comment, p. S. Even with the suggested mitigation measures this proposed action is not consistent with this goal of the Comprehensive Plan. Goal 2:Protect Upland Habitats and Trees The proposed action is clearly not consistent with the goal to protect upland habitats and trees. The project would remove approximately 634 mature trees and the applicant's biological consultant acknowledges there will be adverse "edge effect" impacts on Mill Road Preserve from the action. The DEIS simply discusses the proposed mitigation actions and makes no statement about whether the proposed action is consistent with this goal. To achieve Goal 2 the Comprehensive Plan guides the Town, in part, to: "Protect existing indigenous plants from loss or disturbance to the extent practical;" "Avoid fragmentation of upland ecological communities and maintain corridors to facilitate the free exchange of biological resources within and among communities;" "Avoid permanent adverse change to ecological processes that provide values to the residents of the Town and the region."As an example, "Natural storm and flood mitigation by maintaining the floodplain and tidal wetlands in the natural state;" and "Mitigate impacts of new development where avoidance of impacts is not practicable." Comprehensive Plan, Ch. 6, pp. 24-25. As previously discussed, the Suffolk County Planning Commission criticized the applicant's excavation plan and staff recommended attaching a condition of"no excavation" to the proposed action. The loss of 600-plus mature trees, removal of 4.59 acres of material, and increased vulnerability to storms and flooding all stem from the proposed excavation. The objectives listed above discuss protecting loss or disturbance "to the extent practical" or mitigating impacts where "avoidance of impacts is not practicable."With regard to the proposed action, avoidance of the impacts is practicable, and it is practical to protect from the loss and disturbance without having to implement these mitigating measures, merely by disapproving the absurdly impractical proposal. The proposed action is clearly not consistent with this goal in the Comprehensive Plan. 27 Goal 3:Protect Fish and Wildlife Resources The Comprehensive Plan identifies that habitat destruction, alteration, and fragmentation are one of the most significant threats to the loss of biodiversity in New York. Comprehensive Plan, Ch. 6, p. 27. The proposed action would have those very effects. As the DEIS admits, "[t]he decreased habitat availability associated with the loss of 32 percent of the site's forest habitat would likely decrease the abundance and diversity of the plant and wildlife species that utilize the site. . . . Wildlife species that would be most likely adversely impacted by the proposed action, specifically the reduction in Coastal Oak-Beech forest habitats from 12.60± acres to 8.28± acres, include birds or other wildlife that inhabit mature forests, forest interiors, or have large patch size requirements." DEIS p. 177. Again, by the DEIS's own admission, the proposed action is clearly inconsistent with this goal. Goal 7:Adapt to the Effects of Climate Change and Rising Sea Levels The Comprehensive Plan states: "Sea level rise, warming waters, and changes in storm patterns will affect our coastal dynamics. The Town has adapted to coastal hazards (storms, tidal surges, flooding, and erosion) throughout time; however, currently an unprecedented high densitv of residential structures and infrastructure is located in potential hazard areas." (emphasis added). Lowering an area within a 100-year flood zone from 50+ feet AMSL to —10 feet AMSL and building massive structures in that area is no way to "adapt" to the effects of climate change and rising sea levels. The Suffolk County Planning Commission discussed this issue in its report and recommendations, explaining that: "The subject property is situated in a Federal Emergency Management Agency (FEMA) Federal Insurance Rate Map (FIRM) flood zone A with a base flood elevation set at 7 feet above mean sea level. Based on the extreme topographic change behind the existing buildings the flood zone stops at the existing retaining walls. The Sea, Lake and Overland Surges from Hurricanes (SLOSH) model applicable for the subject site demonstrates the subject property to be effected by surges from category 1 and 2 hurricanes at the existing marina and penetrating into the subject development site at the southern end." County Report p. 3. The County Report goes on to say: "The intended excavation will create a bowl on site where storm flood waters from Mattituck Creek will surge into. Details shown on plans prepared by Young and Young last revised Nov. 20 2018 and referred to the Suffolk county Planning Commission from the Town of Southold Planning Board show elevation of the 28 finished excavation to be approximately 9 feet above mean sea level. Two feet above the base flood elevation and would be susceptible, as are other areas of similar elevations, to surges and flooding from category 2 hurricanes in the least." [T]he fact that there is proposed to be building [i]mprovements and infrastructure in the created flood plain (excavation) will only set up a `repetitive economic loss' scenario for the boat storage building owners going into the future." Id. The County Planning Commission clearly recognized the adverse impacts stemming from the excavation. It is clear the proposed action is not consistent with this goal. Goal 10: Reduce Light Pollution The DEIS states, "the proposed site lighting plan has been designed in accordance with Chapter 172 of the Town Code (Outdoor Lighting). As such, the proposed action would be consistent with this goal." DEIS p. 178. However, "[c]onformance with the Town Code will not `reduce light pollution.' The Comprehensive Plan states that the objective of this goal is to revise the Town Code to address LED technology. The Project includes LED lighting. The Project will increase the amount of light emitted from the presently-forested and unlit portions of the Project site." J. Klein Comment p. 54 of 327. Chapter 7: Economic Development This Comprehensive Plan chapter deals with the economic outlook for the Town of Southold. It is important to note, however, that the Comprehensive Plan does not suggest that economic development should not come at the expense of all of the other goals in the other chapters. Indeed, the economic development chapter itself recognizes that, "The rural character and agricultural use of much of its land together with the vitality of the hamlet centers represent the current character of the Town." Comprehensive Plan, Ch. 7, p. 1. Goal 1: Encourage New and Facilitate the Growth of Existing Business Sectors that Pursue Stable and Sustainable Employment The DEIS states that the "proposed project seeks to expand the business services of SYC to meet an unmet demand for indoor and heated winter storage of yachts on the east end of Long Island." DEIS p. 178. However, the DEIS overstates the value of the benefits the proposed action might produce. The proposed action will only create 11 jobs and it is unclear if these will be "stable and sustainable" employment. Additionally, "the Project will `facilitate the growth of SYC,' but it has not been demonstrated how the construction storage for large pleasure yachts will result in `provide continued support to the maritime industry within the Town of Southold."' J. Klein Comment p. 55 of 327. 29 Goal 2:Promote Economic Development that Ensures an Adequate Tax Base Without Compromising the Unique Character of the Town While the proposed action may slightly increase the tax base (as would any taxable entity's project), this cannot be accomplished at this site without compromising the unique character of the Town. Maritime uses are a part of the character of Southold; however, this project will irreparably diminish and degrade the "high quality of life, the environment, and the unique character of the surrounding community." Moreover, having to entirely transform the landscape in order to make the land viable for maritime use means that the land is not appropriate for maritime use to begin with. Goal 4:Preserve and Encourage Industries that Support Existing and Future Agriculture and Aquaculture Uses The DEIS states: "The subject property is a designated host for the CCE Marine Program for shellfish restoration. As a host, SYC has an executed MOU [Memorandum of Understanding] with the CCE [Cornell Cooperative Extension] Marine Program to support CCE's involvement with the LISRP [Long Island Shellfish Restoration Project], inclusive of housing FLUPSY in dockside areas that are used by CCE for shellfish harvesting." DEIS p. 179. However, "[t]he continued operation of the CCE program hosted by the Applicant is independent of Project approval." J. Klein Comment p. 55 of 327. The proposed project has nothing to do with aquaculture, and, in any event,we understand that the FLUPSY work with Cornell has ended. Goal 5:Preserve, Encourage, and Continue to Support Existing and Future Maritime Uses as an Important Business Sector within the Town's Economy The first objective to achieve this goal is to, "Maintain consistency with the policies adopted under the Local Waterfront Revitalization Program." Comprehensive Plan, Ch. 7, p. 20. As will be discussed in depth in the next section, the proposed project is inconsistent with the policies of the Local Waterfront Revitalization Program ("LWRP"). The Comprehensive Plan states, "Mattituck Inlet is an important economic, environmental, and recreational resource in the hamlet of Mattituck. Located just north of the hamlet center, Mattituck Inlet runs two miles into the North Fork from Long Island Sound and is the only harbor on the 50±mile stretch between Port Jefferson and Orient Point. As such, Mattituck serves as an important maritime location with the Inlet being a popular destination for boaters. The hamlet's accessibility to water, in addition to a designated anchorage, a Town park and boat ramp, marinas, and maritime uses located close to the hamlet center make it a key economic driver." Comprehensive Plan, Ch. 7, p. 23. This proposed action will irreparably degrade the environment. As stated before, having to completely change the landscape in order to make the land viable for maritime use means that the land is not appropriate for maritime use to begin with. It is not consistent with this goal. 30 Chapter 10: Land Preservation Goal 2, Open Space, of this chapter seeks to, "Continue to preserve lands with high- quality natural resources, including wetlands, watersheds, shorelines, significant trees and woodland, and wildlife habitat; those lands with recognized scenic values; and smaller parcels that could provide for village greens or neighborhood pocket parks." The proposed action is clearly inconsistent with this goal and this chapter. The proposal harms lands with high-quality natural resources, degrades lands with scenic values, and harms the Mill Road Preserve. The DEIS completely avoids discussing consistency with this chapter. The project is not consistent with this chapter and its goals. Chapter 12: Natural Hazards The Comprehensive Plan provides this list of natural hazards for Southold Town and explains that planning and preparing for natural hazards can and will help save lives and property. Flooding (coastal, riverine, flash, urban) Nor'easters (extra tropical cyclones, including severe winter low-pressure systems) Severe Winter Storms (heavy snow, blizzards, ice storms) Coastal Erosion Severe Storms (windstorms, thunderstorms, hail, tornados) Hurricanes (tropical cyclones, tropical storms, tropical depressions) Sea Level Rise Drought Extreme Temperature Wildfire Moreover, "The National Flood Insurance Program is predicting an increase in flooding frequency; as strong storms occur more often, coastal inundation will be more frequent, and sea levels will continue to rise." Comprehensive Plan, Ch. 12, p. 1. The proposed project will make the subject property and the land surrounding it more vulnerable to many of the hazards listed in the Comprehensive Plan. 31 "To minimize potential damage to structures in vulnerable areas, the National Flood Insurance Program identified those areas most vulnerable to flooding. These areas are collectively known as the Special Flood Hazard Area and are predicted to have a one percent likelihood of flooding in any given year(see Figure 12.1). The Special Flood Hazard Area is also the area likely to flood during a 6- to 8-inch storm surge (as was experienced in Southold during Hurricane Sandy in 2012)." Comprehensive Plan, Ch. 12. p 3. "Coastal flooding causes erosion, which is another significant natural hazard for Southold. Erosion of the shoreline can also be caused by the normal processes of wind, currents, and wave action. Coastal erosion leads to loss of property and structures, and potentially hazardous conditions for waterfront landowners." Id. The subject property is within a "Special Flood Hazard Area." As the probability of flooding continues increasing, leading to an increased risk of coastal erosion, it is nonsensical to suggest that lowering the elevation of the subject property from 50+ feet AMSL to —10 feet AMSL, is consistent with this chapter. It is obviously not consistent. Chapter 13: Parks & Recreation This is another chapter that the DEIS fails to evaluate, likely due to the obvious inconsistency with the goals of the chapter. Goal 2, Maintain Existing Facilities and Grounds, states, "Enhance utilization of existing park lands, open spaces, beaches, and recreational facilities through ongoing maintenance, stewardship, and facility improvement." Comprehensive Plan, Ch. 13,p. 5. The proposed action will harm Mill Road Preserve through adverse edge effects, which is clearly inconsistent with enhancing utilization of park lands. Comprehensive Plan Consistency Conclusion The conclusion reached in the DEIS regarding the proposed action's consistency with the Comprehensive Plan demonstrates, at best, a complete lack of understanding of the goals and objectives outlined within it, and at worst, a blatant disregard for those goals and objectives. Based on the reasons stated above, it is evident that the proposed action is fundamentally inconsistent with the Comprehensive Plan, and therefore, the site plan should be disapproved on that basis. 32 5. The Planning Board Should Disapprove the Application Because the Proposed Project Is Inconsistent with the Town's LWRP. The LWRP Coordinator should recommend denial of the site plan application because it is inconsistent with the Local Waterfront Revitalization Program("LWRP")' and the Planning Board should adopt that recommendation. Chapter 268, Waterfront Consistency Review, of the Town Code requires that when reviewing applications for actions within the coastal area, such actions must be consistent with the LWRP policies and procedures. Moreover, "no action in the coastal area shall be approved, funded or undertaken by an agency without such a determination." "[T]he waterfront revitalization policies and their associated standards [ ] are to be used in guiding appropriate development and actions for the Town of Southold. They consider the economic, environmental, and cultural characteristics of Southold. The policies are comprehensive, and reflect existing laws and authority regarding development and environmental protection, including that of the Peconic Estuary Program's Comprehensive Coastal Management Plan. Taken together, these policies and their associated standards are used to determine the appropriate balance between economic development and preservation that will permit beneficial use of and prevent adverse effects on Southold's coastal resources." LWRP Sec. III - 1. "The waterfront revitalization policies of the Town of Southold are a local refinement of the Long Island Sound Regional Coastal Management Program Policies that apply throughout the Long Island Sound region. These policy statements implement the State's 44 coastal policies as far as they are applicable within the Town of Southold. Each policy statement is followed by a brief explanation of the situation in Southold and the intent of the policy. This is followed by a set of policy standards. The policies are organized under four headings: developed coast; natural coast;public coast; and working coast. Upon adoption of the Town of Southold LWRP, the policies will become the basis for consistency determinations made by local, state and federal agencies for actions affecting Southold's coastal area." LWRP Sec. III - 1. The complete categorized list of LWRP policies is as follows: Developed Coast Policies Policy 1: Foster a pattern of development in the Town of Southold that enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of a coastal location, and minimizes adverse effects of development. As the LWRP explains,it was prepared and approved in accordance with provisions of the Waterfront Revitalization of Coastal Areas and Inland Waterways Act(Executive Law,Article 42)and its implementing Regulations(19 NYCRR 601). Federal concurrence on the incorporation of the Local Waterfront Revitalization Program into the New York State Coastal Management Program as a routine program change was obtained in accordance with provisions of the U.S. Coastal Zone Management Act of 1972(P.L. 92-583),as amended,and its implementing regulations(15 CFR 923). 33 Policy 2: Preserve historic resources of the Town of Southold. Policy 3: Enhance visual quality and protect scenic resources throughout the Town of Southold. Natural Coast Policies Policy 4: Minimize loss of life, structures, and natural resources from flooding and erosion. Policy 5: Protect and improve water quality and supply in the Town of Southold. Policy 6: Protect and restore the quality and function of the Town of Southold's ecosystem. Policy 7: Protect and improve air quality in the Town of Southold. Policy 8: Minimize environmental degradation in the Town of Southold from solid waste and hazardous substances and wastes. Public Coast Policies Policy 9: Provide for public access to, and recreational use of, coastal waters, public lands, and public resources of the Town of Southold. Working Coast Policies Policy 10: Protect the Town of Southold's water-dependent uses and promote siting of new water-dependent uses in suitable locations. Policy 11: Promote sustainable use of living marine resources in the Town of Southold. Policy 12: Protect agricultural lands in the Town of Southold. Policy 13: Promote appropriate use and development of energy and mineral resources. The proposed project is not consistent with these policies, as discussed in more detail immediately below. Policy 1: Foster a pattern of development in the Town of Southold that enhances community character,preserves open space, makes efficient use of infrastructure, makes beneficial use of a coastal location, and minimizes adverse effects of development. This policy is intended to "foster a development pattern that provides for beneficial use of the environmental, historical, and cultural coastal resources of the Town of Southold while maintaining and building on its traditional economic base." LWRP Sec. III - 3. "The primary components of the desired development pattern are: strengthening the hamlets as centers of 34 activity, maintaining a clear sense of separation between hamlet centers and the countryside, encouraging water- dependent uses to concentrate in existing locations of maritime activity, enhancing stable residential areas, and preserving agriculture, open space and environmentally sensitive coastal resources. Development that does not reinforce the traditional land use pattern of the Town of Southold would result in a loss of the community and landscape character of Southold." (emphasis added)Id. The Suffolk County Planning Commission report noted that boat storage is not a water- dependent use, rather it is a water-related use because it can be and often is achieved inland(so long as the inland site is at a grade and location capable of receiving boat transportation). While portions of the applicant's site is in a maritime area, this comment letter, and others, have frequently mentioned the incongruity of the MII district extending up a steep hill to an area that is at 50+ feet AMSL. The DEIS says, "The proposed action would expand in line with the existing scale of development on the subject property." DEIS p. 181. That is patently untrue. All of the previous development of the site occurred on or near the waterfront without having to undertake a massive excavation on 4.59 acres of land. Moreover, the proposed structures are significantly larger than the other structures on the subject property. Additionally, this LWRP policy intends to ensure that preserving open space and environmentally sensitive coastal resources are key considerations when fostering development. This proposed project does not enhance the community character, does not minimize the adverse effects of development, and does not preserve open space and environmentally sensitive coastal resources. Moreover, "According to the applicant, this investment in additional Yacht storage would ensure this marina continues to operate for many years to come as a working marina and not succumb to the pressures of transitioning to residential with private waterfront use, or a hotel, motel or restaurant development which are all permitted by special exception use permit." DEIS p. 181. The marina has continued to operate for a number of years without any disturbance. There is no evidence that denying the proposal would make Strong's existing marina unprofitable. This unfounded assumption should not be the basis to approve of harmful development that is clearly inconsistent with this policy of the LWRP. Policy 2:Preserve historic resources of the Town of Southold. The DEIS states, "There are no known historic or archaeological resources on or adjacent to the subject property that would be adversely impacted by the proposed action. A Phase IA and Phase 1B was conducted on the subject property and the NYS OPRHP has issued a determination of no impact upon cultural resources (see Section 3.11.2 and Appendix T of this DEIS)." In fact, "[w]hile no historic properties are "on or adjacent" to the Project site, two properties eligible for listing on the State and National Registers of Historic Places—the Old Mill Restaurant and the Old Water Tower—may be adversely affected by vibration from Project- associated construction truck traffic." J. Klein Comment p. 142 at 327. Additionally, "The OPRHP correspondence in Appendix T (labeled "Historic Signoff SHPO" dated July 29, 2021 indicated that OPRHP had not yet completed its review of the archeological studies prepared for the Project. On January 24, 2022, OPRHP advised the NYSDEC that it was `still evaluating the 35 project's potential to impact historic architectural resources.' On April 8, 2022, OPRHP advised they have `concerns regarding potential impacts to historic architectural resources as a result of vibrations from construction vehicles' (DEIS Appendix T). As of March 2023, OPRHP has not indicated that their concerns have been addressed."Id. The Planning Board has the responsibility to ensure that the potential impacts to archeological sites have been adequately addressed. The applicant has not shown that the proposed development is consistent with this policy. Policy 3:Enhance visual quality and protect scenic resources throughout the Town of Southold. ,,The intent of this policy is to protect and enhance the visual quality of the Town of Southold as well as to improve the quality of deteriorated areas and other negative visual elements. The preservation of the aesthetic, historic, and scenic character of the Town is critical to the continuance of its attraction and economic vitality as a year-round waterfront community." LWRP Sec. III - 5. The DEIS states that, "The proposed action would not have a significant adverse impact on the visual quality or scenic resources throughout the Town of Southold." DEIS p. 181. This is incorrect. As the DEIS goes on to admit, "the views of the subject property would be altered as a result of the proposed action." Id. As noted in other comments, the visual impact assessment is wholly inadequate. The simulations were not properly prepared and as such, should not be used to determine whether the proposed action is consistent with this goal. Once again, the Planning Board is responsible for ensuring consistency with this policy. More importantly the Planning Board is responsible for the FEIS and needs to make sure that the visual impact assessment is conducted properly. The applicant has not demonstrated consistency with this policy. Policy 4:Minimize loss of life, structures, and natural resources from flooding and erosion. "The intent of this policy is to protect life, structures, and natural resources from flooding and erosion hazards throughout the Town of Southold. The policy reflects state flooding and erosion regulations and provides measures for reduction of hazards and protection of resources." LWRP Sec. III - 10. When discussing areas of low bluffs or dunes, the LWRP says, "Development should be minimized within these areas, with structures set back from the low bluffs or dunes, existing houses should be moved back where possible, and native plantings used to protect the bluffs and dunes. Hard shoreline protection structures should only be allowed when a property is in danger, and no other alternative will save the structure." Id. at 9. With regards to areas of high bluffs, "Few erosion protection structures are found in areas of high bluffs, allowing the shoreline to erode naturally. If hard structures are built in these areas, this dynamic would change. The hard structures would cause an overall increase in the rate of erosion as the shoreline tries to come into equilibrium with the loss of sand source. Development should be minimized within these areas, with structures set back from the bluffs, existing houses should be moved back where possible, and native plantings used to protect the bluffs. Hard shoreline protection structures should only be allowed when a property is in danger, and no other alternative will save the structure." Id. 36 The intent is to protect from flooding and erosion hazards, not to create a higher risk of those hazards. Additionally, there is an LWRP emphasis that, "Natural protective geologic features provide valuable protection and should be protected, restored and enhanced. Destruction or degradation of these features should be discouraged or prohibited." LWRP Sec. III - 12. Lowering the subject property from 50+ feet AMSL to !10 feet AMSL in a 100-year flood zone and then putting structures there where they are more at risk of flood damage is clearly inconsistent with this policy. Moreover, the proposed project would be destroying natural protective features, which the LWRP expressly says not to do. The DEIS's assertion that the proposed project is consistent with this policy demonstrates a flagrant disregard for the intent of the policy. The proposed project is plainly inconsistent with this policy. Policy 5:Protect and improve water quality and supply in the Town of Southold. Reducing the separation between wastewater and stormwater systems and the groundwater table will harm water quality. While the applicant touts the I/A OWTS systems it intends to install, "replacement of the existing septic system with an I/A OWTS is not contingent upon Project approval. The applicant could install an I/A OWTS system now, and has chosen not to do so." J. Klein Comment p. 143 of 327. Policy 6:Protect and restore the quality and function of the Town of Southold's ecosystem. The LWRP recognizes the importance of protecting the various ecosystems of the Town of Southold. "Certain natural resources that are important for their contribution to the quality and biological diversity of the Town's ecosystem have been specifically identified by the State of New York for protection. These natural resources include regulated tidal and freshwater wetlands; designated Significant Coastal Fish and Wildlife Habitats; and rare, threatened, and endangered species." LWRP Sec. III - 20. "In addition to specifically identified discrete natural resources, the quality of the Town's ecosystem also depends on more common, broadly distributed natural resources, such as the extent of forest cover, the population of overwintering songbirds, or benthic communities. These more common natural resources collectively affect the quality and biological diversity of the Sound ecosystem."Id. Included in this policy is the goal to, "Avoid adverse changes to the Long Island Sound and the Peconic Bay ecosystems that would result from impairment of ecological quality as indicated by: Physical loss of ecological components; Degradation of ecological components; and Functional loss of ecological components." Id. at 20-21. Additionally, the LWRP says to adhere to measures like, "Avoid fragmentation of ecological communities and maintain corridors to facilitate the free exchange of biological resources within and among communities." Id. at 21. Moreover, the LWRP says, "Where destruction or significant impairment of habitat values cannot be avoided, minimize potential impacts of land use or development through appropriate mitigation. Use mitigation measures that are likely to result in the least environmentally damaging feasible alternative." Id. at 24. 37 The DEIS claims, incorrectly, that the project would be consistent with this policy, while only discussing mitigating the edge effect and erosion and sedimentation control measures. The DEIS fails to mention in this context the loss of habitat for any of the species that are understood to inhabit the site, including but not limited to the endangered Northern Long-Eared Bat, or the fact that the edge effect, impacting the Town-owned Mill Road Preserve, will still occur even with mitigating measures. The proposed project is clearly inconsistent with this goal. Policy 7:Protect and improve air quality in the Town of Southold The DEIS, once again, cherry picks what information it wishes to say regarding this policy. It states: "The Air Quality Report (see Appendix S) concluded that long-term air quality impacts would be inconsequential as the addition of stationary emission sources is not proposed and vehicular traffic due to the implementation of the proposed action would be minimal." DEIS p. 182. "Additionally, the existing CCE FLUPSY units would continue to operate as part of the proposed action. This program has a beneficial impact on carbon sequestration and therefore improves the water and air quality of the Town of Southold.As such, the proposed action would be consistent with the intent of this policy."Id. Again, we understand that the FLUPSY work at the site (which was never a component of this project) has ended. Moreover, "[t]he Air Quality Report also concluded that short-term air quality impacts ,may occur during the excavation phase of the project.' The statement that stationary emission sources are not proposed is incorrect. The proposed storage buildings will be heated by propane. Although the heating source is not identified in the DEIS, one will be required, and it will be an emission source." J. Klein Comment p. 146 of 327. "DEIS Table 31 makes no reference to the fact that because the Project will destroy more than 600 mature trees, with an associated loss of sequestered carbon, it will have an adverse effect on air quality. The DEIS states that `the projected 1.5 million clams harvested annually [from the CCE FLUPSY units] have the potential to sequester 9,680 lbs. [less than 5 tons] of carbon' (p.273). However, in discussing LWRP consistency no mention is made of the loss of more than 350 tons of sequestered carbon as a result of forest clearing, or the fact that the carbon sequestration associated with operation of the CCE FLUPSY units affects only carbon in seawater and has no effect on air quality. The proposed Project will adversely affect air quality in the Town of Southold."Id. As such, the proposed project is not consistent with Policy 7. Policy 9:Provide for public access to, and recreational use of, coastal waters,public lands, and public resources of the Town of Southold. The DEIS states, "This policy is not applicable to the proposed action as the existing marina is for private membership to utilize the facilities, which would remain as part of the proposed action."As such, the DEIS claims the proposed project is consistent with this policy. However, the Planning Board needs to also consider the adverse effects on Mill Road Preserve. Mill Road Preserve is land held by the Town for use by its residents and the project will harm that public resource. 38 Policy 10:Protect the Town of Southold's water-dependent uses and promote siting of new water-dependent uses in suitable locations. The DEIS first mischaracterizes the proposed action as being a water-dependent use. As mentioned by the Suffolk County Planning Commission, boat storage is a water-related use since it will occur, and often occurs, somewhat inland. The DEIS next makes the unsubstantiated claim that the proposed action is responding to unmet industry demand. Lastly, the DEIS claims the "proposed development is a suitable location for such use as it is an expansion of an existing maritime use, and it is zoned for such use." DEIS Sec. III - 46. While the proposed development is in a Marine II district, the proposed development is not in a suitable location. If the location was suitable, there would be no need to excavate 4.59 acres of materials in order to make the proposed development viable. The proposed action is not consistent with this policy because the location is not suitable for the proposed development without completely altering the land, causing a plethora of environmental harms. Policy 11:Promote sustainable use of living marine resources in the Town of Southold. The DEIS states, "SYC is a designated host for the CCE Marine Program for shellfish restoration and hosts 8 FLUPSY units. . . SYC is committed to being a FLUPSY host through 2030. These clams aid in the enhancement and restoration of the shellfish fishery within the Town of Southold and subsequently Long Island."DEIS Pg. 183. However, "[t]he DEIS contains no documentation of the Applicant's commitment to the Cornell Marine Program through 2030. Appendix C (Memorandum of Understanding Between Cornell Cooperative Extension (CCE) of Suffolk County and Strong's Yacht Center [June 5, 2019])9 to DEIS Appendix M (Boat Vessel Study) is clear in that the applicant `has the right to terminate [the] agreement for any reason.' The agreement itself indicates that it terminated on December 1, 2020. The proposed Project does not include any provision for increased support of the shellfish restoration program, which is totally independent from the proposed Project, and which would presumably continue even if the Project does not proceed. The Project does nothing to `Promote sustainable use of living marine resources in the Town of Southold."' J. Klein Comment p. 148 of 327. Policy 12:Protect agricultural lands in the Town of Southold. The proposed Project does not protect agricultural lands or advance this policy. LWRP Consistency Conclusion Based on the reasons stated above, it is evident that the proposed action is fundamentally inconsistent with the LWRP, and therefore, the LWRP Coordinator and the Planning Board should make that finding, and the site plan should be disapproved on that basis. 39 COMMENTS ON DEIS AND RELATED SEQRA ISSUES This section of this comment letter addresses two fundamental aspects of SEQRA as it applies to the proposed project. First, we discuss SEQRA's "substantive mandate,"which authorizes and requires lead agencies to deny the application for any project such as Strong's yacht storage proposal whose adverse environmental effects are not outweighed by social or economic benefits. Second, we discuss the need for substantial revision and/or supplementation of the DEIS before an FEIS can be adopted by the Planning Board and before any decision can be made on the site plan application. 6. The Planning Board Should Issue a Negative SEQRA Findings Statement and Deny the Application Pursuant to SEQRA's Substantive Mandate. SEQRA has both a procedural component and a substantive component. The procedural component includes the familiar obligations of a lead agency to prepare a scoping document, DEIS, and FEIS, to issue public notices, and to accept and respond to public comments, etc. That process is designed to inform the public and other involved agencies about proposed actions which may significantly affect the quality of the environment and to assist the agencies in their decision making. But the law also has a critically important substantive mandate that governs the decisions lead agencies make upon their completion of the process. The SEQRA statute requires that: "Agencies . . . shall act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process." N.Y. Environmental Conservation Law ("ECL") § 8-0109(1) (emphasis added). Accordingly, for a lead agency to approve a proposed action, it must be able to make, and actually make "an explicit finding . . . that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided." ECL § 8-0109(8). Likewise, the SEQRA regulations explain that "[t]he basic purpose of SEQR is to incorporate the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies. . . ." 6 NYCRR § 617.1(c); see also Neville v. Koch, 79 N.Y.2d 416, 426 (1992). ("SEQRA's goal [is] to incorporate environmental considerations into the decision making process . . . ."). The SEAR Handbook issued by the New York State Department of Environmental Conservation ("DEC") explains further: "An agency must not . . . approve any part of an action if it cannot support positive findings and demonstrate, consistent with social, economic, and 40 other essential considerations from among the reasonable alternatives, that the action: Minimizes or avoids adverse environmental impacts to the maximum extent practicable, and, [i]ncorporates into the decision those mitigation measures identified in the SEQR process as practicable." "[E]ach involved agency is required to weigh and balance public need and other social, economic, and environmental benefits of the project against significant environmental impacts. Thus,for an agency to approve an action with potential to create a significant environmental impact, or to adversely affect important environmental resources, the agency must be able to conclude that the action that the agency will approve, including any conditions attached to that approval, avoids or minimizes anticipated adverse impacts to the maximum extent practicable, or that public need and benefit outweigh the identified environmental impact. Where public need and henefit cannot he shown to outweigh the environmental impacts of a project, the agency may he compelled to deny approvals for the action."10 In sum, the SEAR Handbook explains that "Using SEQR findings as a basis for conditions ensures that SEQR is not just a procedure, but instead, that the information gathered by the environmental review process will affect agency decisions."11 New York courts have also frequently made clear that SEQRA authorizes agencies to deny a project to avoid significant adverse environmental impacts.12 As explained above, in the comments submitted by many other stakeholders, and in the following subsections, the proposed project would cause numerous significant adverse environmental impacts and there is no overriding public need for, or public benefit from, the v SEQR Handbook at 147. 0 SEQR Handbook at 114(emphasis added). " SEQR Handbook at 148. 12 See, e.g.,Matter of Town of Henrietta v. N.Y. State Dept. ofEnvtl. Conservation, 76 A.D.2d 215,221-222 (4th Dep't 1980) ("The statute cannot be construed as merely procedural or informational since it states that all approving agencies involved in an action must actually consider the EIS and formulate a decision on the basis of all the adverse environmental impacts disclosed therein(ECL 8-0109, subd 2). Since SEQRA requires an approving agency to act affirmatively upon the adverse environmental impacts revealed in an EIS(ECL 8-0109, subds 1, 8),an EIS filed pursuant to SEQRA must also be recognized as not a mere disclosure statement but rather as an aid in an agency's decision making process to evaluate and balance the competing factors. Furthermore, SEQRA's legislative history supports a broad construction of its provisions. . . . The information provided by the impact statement thus allows State and local officials intelligently to assess and weigh the environmental factors,along with social, economic and other relevant considerations in determining whether or not a project or activity should be approved or undertaken in the best over-all interest of the people of the State(NY Legis Ann, 1975,pp 438-439). SEQRA therefore requires a decision maker to balance the benefits of a proposed project against its unavoidable environmental risks in determining whether to approve the project). See also Matter of Orchards Assoc. v.Planning Bd. of'N. Salem, 114 A.D.2d 850(2d Dep't 1985); WEOKBroadcasting Corp. v.PlanningBd. ofLloyd, 165 A.D.2d 578, 584(3rd Dep't 1991); Roosevelt Jslanders forResponsihle Southtown Dev. v.Roosevelt Island Operating Corp.,291 A.D.2d 40, 54(1st Dep't 2001). 41 proposed project. Accordingly, the Planning Board should implement its substantive responsibilities under SEQRA by issuing a Negative Findings Statement and denying the application. a. There Is No Public Need for the Proposed Project, Nor Would it Produce a Public Benefit. Every EIS, whether draft or final, must contain a description of the project's "purpose, public need and benefits, including social and economic considerations." ECL § 8-0109(2)(a); 6 NYCRR § 617.9(b)(5)(1). Importantly, under SEQRA, the "purpose" of a proposed project is legally distinct from any "public need and benefit"it might have, as the SEAR Handbook explains: "`Purpose' is a goal or objective to be achieved. The purpose of most privately sponsored projects is to make a profit from some development activitv on their propertv. . . . `Need' is a lack of something required, desirable, or useful. The need for an action maybe public,private, or a combination of both. Public need may apply to puhlicly or privately sponsored projects that satisfy a societal need. . . . `Benefit' is something that promotes well-being. The benefits of an action relate to satisfaction of need. . . .1113 [C]ompatibility with zoning should not be confused with public need. Sponsors of many privately proposed actions may be able to demonstrate their compatibility with such indicators of public development intent as locally adopted land-use plans, zoning ordinances, historic districts, and agricultural districts. To demonstrate puhlic need, however, the sponsor must also show what element of need a proposed project will satisfy. For example, the sponsor of a proposed residential subdivision could demonstrate public need for additional housing . . . ."14 The DEIS repeatedly makes the assertion that the proposed action is "responding to a market demand for larger boat owners looking for local indoor winter storage." See generally DEIS. There are no studies pointed to or nothing to back up that assertion. Simply repeating that there is a demand for this project is not nearly enough to demonstrate the public need for this proposed action. As other commenters have explained, there is no need in the Town for storage of 88 yachts up to 85 feet in length at this location. '' SEQR Handbook at 113-114(emphasis added). 4 Id.at 115 (emphasis added). 42 b. The Proposed Project Would Cause Numerous Significant Adverse Environmental Impacts. Every EIS must contain a"statement and evaluation of the potential significant adverse environmental impacts at a level of detail that reflects the severity of the impacts and the reasonable likelihood of their occurrence." 6 NYCRR § 617.9(b)(5)(111). In the Final Scope, Positive Declaration, and Full Environmental Assessment Form ("FEAF") Parts 2 and 3, the Planning Board specifically identified potentially significant ("moderate to large") adverse environmental impacts to Land, Surface Waters, Groundwater, Flooding, Air, Plants and Animals, Aesthetic Resources, Noise, and Community Character. Final Scope, Feb. 8, 2021, at 5. Without proper supporting analyses, the inaccurate, self-serving DEIS prepared by Strong's purports that the only significant adverse environmental impact that would be caused by its project would be construction noise. That is manifestly inaccurate. In fact, if approved and implemented, the proposed project would cause adverse environmental impacts in the nine resource/impact categories identified as potentially significant in the Final Scope, as well as many others. This must be corrected in the FEIS through revision and/or supplementation, as discussed further below. The DEIS evaluated the following issues: • Soils and Topography • Water Resources • Flooding and Climate Change • Ecological Resources • Consistency with Community Plans and Studies • Human Health • Transportation • Aesthetic Resources • Community Character • Open Space and Recreation • Noise • Air Quality • Social and Economic Impacts • Construction-Related Impacts • Archaeological and Cultural Resources The proposed project would cause significant adverse environmental impacts in all or the vast majority of these resource categories, including but not limited to Soils and Topography, Flooding and Climate Change, Water Resources, Ecological Resources, Inconsistency with Adopted Community Plans, Transportation(i.e., traffic), Community Character, Open Space and Recreation, and Construction-Related Impacts, as discussed in the following subsections (as well as in the comments of many others): 43 Soils and Topography The proposed project would cause significant adverse environmental impacts to soils and topography because it would radically transform the site's topography, turning a hillside into a flood plan "bowl." As admitted by the DEIS, "The proposed action would result in the disturbance of soils for removal of material for regrading, building foundations, drainage and sanitary waste infrastructure, utility installation, pervious parking areas, and landscaping. Based upon the preliminary site plan and site data provided by the project engineer, the total land area to be disturbed is approximately 6.51 acres. The disturbance of soils for construction and regrading activities increases the potential for erosion and sedimentation." DEIS p. 32. The DEIS then recommends that the Planning Board should conclude that "no significant adverse impacts associated with on-site soils, or from the disturbance of the site would be expected." DEIS p. 40. The analysis is based, in part, on proposed retaining wall. However, excavating 135,000 cubic yards of material from 4.59 acres of materials and completely clearing out a natural bluff to create a bowl into which flood waters will flow is itself a significant adverse impact, with or without a retaining wall. The loss of soil and changes to the landscape is clearly harmful to the wildlife and makes the subject property more at risk of flooding and erosion. The DEIS ignores the no excavation condition recommended by the Suffolk County Planning Commission staff and improperly claims that there will be no significant adverse impacts. Flooding and Climate Change The proposed project would cause significant adverse environmental impacts related to flooding and climate change because it would increase the site's susceptibility to flooding and climate-related impacts. NYSDEC's science-based sea-level rise projections are incorporated into regulations by codified at 6 NYCRR Part 490 (Projected Sea-level Rise). The intent of Part 490, as excerpted from § 490.1 —Purpose, is: "[t]his Part establishes science-based projections of sea-level rise for New York State's tidal coast, including the marine coasts of Nassau, Suffolk and Westchester counties and the five boroughs of New York City, and the main stem of the Hudson River, north from New York City to the federal dam at Troy." The DEIS uses conservative rather than worst-case projections of sea level rise to predict future impacts. See J. Klein Comment p. 54 at 327. "The DEIS has based its analyses on a potential sea level rise of 16 inches (or 1.33± feet)by 2050 which, per 6 NYCRR 490 is considered a `medium' 2 projection. The DEIS considers this `reasonable.' A more conservative analysis using a `High-medium' projection assuming a sea level rise of 21 inches, or a `high' projection of 30 inches, representing a possible `worst-case' scenario should have been used. While these alternate scenarios are noted in the DEIS (p.105, Table 16) they are excluded from analyses." J. Klein Comment p. 143 of 327. 44 Moreover, "[n]o mention is made in the analysis of how the proposed new boat storage buildings would be affected by sea level rise. The references to Figure 24 in DEIS Appendix A are misleading. That figure is a reproduction of a Mapper-generated graphic showing the assumed 18-inch sea level rise/100-year occurrence scenario. Figure 24 shows the approximate location of the proposed boat storage buildings as asterisks. According to Figure 24, these locations would be unaffected by sea level rise. This is misleading and contradicts the DEIS text. The DEIS states that `sea level rise with storm inundation were evaluated at the subject property, under the post-development condition' (emphasis added) (pp. ix, 107). However, the Mapper graphic, on which Figure 24 is based, depicts existing elevations and does not take into account the fact that the post-construction elevations of the marked locations will be up to 40 feet lower than the elevations used by the Mapper to generate Figure 24." J. Klein Comment p. 186 at 327. Further, "[t]he DEIS' multiple attempts to characterize the trend in annual precipitation as decreasing when, in fact the data indicates the opposite, have compromised all of the climate- change modeling done for the Project, especially as it relates to impacts to changes in groundwater levels over time." J. Klein Comment p. 189 of 327. Moreover, the DEIS states that there are no flooding impacts expected. Multiple public comments and the Suffolk County Planning Commission report demonstrate that that is not the case. Lowering a natural bluff from 50+ feet AMSL to —10 feet AMSL in a 100-year flood zone susceptible to hurricanes and storm surges will clearly cause significant adverse flooding impacts. Water Resources As discussed above, the proposed project would cause significant adverse environmental impacts to water resources due to, among other things, flooding and the reduction in separation between wastewater and stormwater infrastructure and the groundwater table. Ecological Resources As discussed above, the proposed project would cause significant adverse environmental impacts to ecological resources because, among other things, it will destroy a mature, fragile, coastal oak-beech forest and the habitat it provides to many species, including species of special concern. The DEIS admits that the "proposed action has a construction footprint of 6.51±acres [and will result] in the physical disturbance and permanent loss of 4.32± acres of high-quality Coastal Oak-Beech forest, 1.19± acres of southern successional hardwood forest, and 0.54± acre of successional shrubland (see Table 25, as excerpted from Table 6 of the Ecological Report)." DEIS p.133. Total removal of 5.51 acres of upland forest, including cutting down 634 trees and the destruction of the associate wildlife habitat is not "forest disturbance,"it is forest/habitat destruction. The destruction of almost six acres of forest will create new forest edges resulting in an adverse "edge effect." DEIS Appendix N notes the negative aspects of forest edges, including: "higher ambient light levels, air and soil temperatures, and wind speed; and lower relative humidity and soil moisture . . .than forest interiors. . . These changes . . . particularly increased 45 light levels, foster proliferation of invasive plant species and changes to the observed plant community due to differences in plant recruitment and survivorship. . . [I]ncreased summer heat and drought stress to trees and vegetation due to higher temperatures . . ." (Appendix N pp.34- 35). Both the DEIS and its Appendix N state that the "new forest edge will likely result in an intensification of the existing edge effects at the site, likely resulting in colonization and increased growth of invasive plant species and reduction in habitat quality for nesting songbirds, and increased abundance of predators and invasive competitors. In addition, the proposed project may result in increased numbers of invasive birds, such as European starling (Sternus vulgaris), house sparrow (Paras domesticus), and brown-headed cowbird (Molothrus ater), as these birds thrive in habitats created by humans and often nest on or in buildings." DEIS p.136, Appendix N p .24. "Both the DEIS and Appendix N also acknowledge that `Some of the 8.28 acres of coastal oak beech forests and 3.48 acres of successional forests that will be maintained under the proposed action will be adversely impacted by the creation of new forest edges" (DEIS p. 134, Appendix N p.23). However, both fail to indicate that they are referring to the portion of the Project land parcel beyond the limits of the Project Area. In other words, they do not call out the fact that that the negative ecological impacts associated with the edge effect will extend far beyond the limits of the Project Area." J. Klein Comment p. 58 of 327. Moreover, the DEIS understates the edge effect impacts to the Town owned Mill Road Preserve Additionally, the DEIS understates the effects of the removal of 600+ trees. The DEIS states repeatedly that the removal will be mitigated by the planting of new trees. See generally DEIS. However, the DEIS never discusses that the new trees take years and years to mature and get to the same level of function as the trees that will be removed. With the proposed mitigating measures, it would take between 50-70 for the new trees to reach the height of many of the trees proposed to be removed. J. Klein Comment p. 62 of 327. Moreover, the pitch pines will never provide the habitat that the existing coastal oak-beech forest presently does. The DEIS admits that, "The decreased habitat availability associated with the loss of 32 percent of the site's forest habitat would likely decrease the abundance and diversity of the plant and wildlife species that utilize the site." DEIS p. 137. As discussed elsewhere, there are a number of endangered and threatened species that will be harmed by this loss of habitat. The DEIS understates the impacts to these species as well. The proposed project would cause significant adverse environmental impacts to ecological resources. 46 Inconsistencies with Adopted Community Plans The proposed project would cause significant adverse environmental impacts due to its inconsistencies with adopted community plans, including the Comprehensive Plan and the LWRP. These are considered adverse environmental impacts under SEQRA. Community Character The proposed project would cause significant adverse environmental impacts to community character for the reasons set forth above and in the comments of others. Transportation The proposed project would cause significant adverse environmental impacts related to transportation, specifically traffic, because of the 8,000 truck trips in and out of the site. Open Space and Recreation The proposed project would cause significant adverse environmental impacts to open space and recreation because of its effects on Mill Road Preserve. Construction-Related Impacts The proposed project would cause significant adverse construction-related environmental impacts because of the truck traffic, noise, dust and other impacts that the community would suffer during construction. C. The Planning Board Should Issue a Negative Findings Statement. The SEQRA regulations require that, after completing an FEIS, the Planning Board must afford a reasonable time period, not less than 10 days, for the public and involved agencies to consider the FEIS, and then the Planning Board must issue a written Findings Statement. 6 NYCRR§ 617.11(a)-(b). The Planning Board cannot render a decision on the project application unless and until it has issued its Findings Statement. 6 NYCRR § 617.11(c). The Planning Board's SEQRA Findings Statement must do all of the following: (1) Consider the relevant environmental impacts, facts and conclusions disclosed in the final EIS; (2) Weigh and balance relevant environmental impacts with social, economic and other considerations; (3) Provide a rationale for the agency's decision; (4) Certify that the requirements of SEQRA have been met; and 47 (5) Certify whether, consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable. 6 NYCRR § 617.11. The SEAR Handbook provides valuable guidance on the purposes and content of Findings Statements, and the range of possibilities for that important document: • Positive Findings Statement: "A positive findings statement means that, after consideration of the final EIS, the project or action can be approved, and the action chosen is the one that minimizes or avoids environmental impacts to the maximum extent practicable. For an action that can be approved, an agency's findings statement must articulate that agency's balancing of adverse environmental impacts against the needs for and benefits of the action."15 • Negative findings statement: "If the action cannot be approved based on analyses in the final EIS, a negative findings statement must be prepared, documenting the reasons for the denial."16 • Distinction between SEQRA findings and other findings: Any findings that the Planning Board may also need to make in connection with a site plan or other approvals "are not the same as, nor may they substitute for, SEQR findings.-17 • Distinction between SEQRA findings and decision on applications. The SEQRA findings are also not the same as the decision on the proposed action, but they "are the basis for decisions on an action. An agency may choose to include the findings statement as part of its decision; however, a findings statement by itself does not constitute a decision. Also, a decision alone will not satisfy the SEQR requirement for findings."1R • Relationship between SEQRA Findings and decision on applications. "An agency must not . . . approve any part of an action if it cannot support positive findings and demonstrate, consistent with social, economic, and other essential considerations from among the reasonable alternatives, that the action: Minimizes or avoids adverse environmental impacts to the SEQR Handbook at 145. SEQR Handbook at 145. SEQR Handbook at 146. " SEQR Handbook at 146. 48 maximum extent practicable, and, [i]ncorporates into the decision those mitigation measures identified in the SEQR process as practicable."19 Weighing a project's public need and benefit (if any) against adverse environmental impacts. "[E]ach involved agency is required to weigh and balance public need and other social, economic, and environmental benefits of the project against significant environmental impacts. Thus, for an agency to approve an action with potential to create a significant environmental impact, or to adversely affect important environmental resources, the agency must be able to conclude that the action that the agency will approve, including any conditions attached to that approval, avoids or minimizes anticipated adverse impacts to the maximum extent practicable, or that public need and benefit outweigh the identified environmental impact. Where public need and henefit cannot he shown to outweigh the environmental impacts of a project, the agency may he compelled to deny approvals for the action."20 The Planning Board should issue a Negative Findings statement, finding that the action cannot be approved based on analyses in the FEIS and documenting the reasons for the denial, including that, after consideration of the FEIS, the proposed project does not minimize or avoid environmental impacts to the maximum extent practicable, and that, based on the Planning Board's balancing of adverse environmental impacts against the needs for and benefits of the action, the need and benefit, if any, does not outweigh the significant adverse environmental impacts. d. The Planning Board Should Deny the Application Pursuant to SEQRA's Substantive Mandate. Based on the Negative Findings Statement, the Planning Board should vote to disapprove the site plan application. y SEQR Handbook at 147. 21 SEQR Handbook at 114(emphasis added). This text was also quoted above,but we repeat it here due to its importance to the Findings Statement. 49 7. The DEIS Requires Substantial Supplementation in an SEIS and (Following Public Comment on the SEIS), Revision in an FEIS to he Prepared by the Planning Board's Consultant and Eventually Issued by the Planning Board, which is Responsible for its Accuracy and Adequacy. While SEQRA allows an applicant, at its option, to prepare a DEIS,21 the Planning Board itself must either prepare the Final Environmental Impact Statement("FEIS") or cause it to be prepared Even when the Planning Board utilizes an outside consultant to prepare it as is will be done for this FEIS the SEQRA regulations make clear that: "The lead agency is responsible for the adequacy and accuracy of the final EIS.1123 The FEIS must include the following components: • The DEIS; • Any necessary corrections, revisions, or supplementations to the DEIS. All substantive revisions and supplements to the DEIS must be specifically indicated and identified as such in the FEIS; • Copies or a summary of all substantive comments received, indicating their source (written or hearing); and • The Planning Board's responses to substantive comments.24 As noted, the FEIS must contain any needed supplements and revisions (including corrections) to the DEIS.2' The Planning Board may require a supplemental EIS analyzing specific significant adverse environmental impacts not addressed or inadequately addressed in the DEIS that arise from changes proposed for the project; newly discovered information; or a change in circumstances related to the proiect.26 The decision to require preparation of a supplemental EIS, in the case of newly discovered information, must be based upon the importance and relevance of the information; and(b) the present state of the information in the EIS. If a supplement is required, it must be subject to the full procedural requirements for a 21 6 NYCRR§ 617.9(a)(1). 22 6 NYCRR§ 617.9(a)(5). 23 6 NYCRR§ 617.9(b)(8). See also SEQR Handbook(4th Ed.2020)published by the New York State Department of Environmental Conservation("NYSDEC"),at 136("The lead agency may. . .consult with other involved agencies,or with outside consultants,but this in no way reduces the responsibility of the lead agency for the final product."). 24 6 NYCRR§ 617.9(b)(8). 25 6 NYCRR§ 617.9(b)(8). 26 6 NYCRR§ 617.9(a)(7). 50 DEIS (e.g., a comment period) except that a second scoping process is not required.Z' When reviewing the issue of whether an SEIS should have been prepared, courts look carefully at any alleged inadequacies, "scrutinizing the draft and final EIS for discussion of the issues in question and searching the record for evidence that a potentially significant adverse effect is involved.112' The omission of a required item from the DEIS cannot be cured simply by including the item in the final EIS, given lack of public notice and comment for revisions as ion.29 Newly discovered information encompasses more than just opposed to supplementat intonation that was unknown when the DEIS was prepared. It also includes information that was omitted from the DEIS. It is the Planning Board's responsibility to evaluate (based on expert advice) the accuracy and adequacy of the DEIS and to provide a rational basis for its decision whether to require a supplemental EIS. As has been explained in public comments on May 15 and in writing, Strong's DEIS is riddled with errors and inconsistencies. The Planning Board must correct all these, and any others that are identified by the public, involved agencies, the Board, planning staff, or the outside consultant, once hired. These should be conducted as part of a supplemental DEIS, so that the public and involved agencies have an opportunity to comment on them. Whether or not a supplemental EIS is required, the Planning Board must determine whether revisions to the DEIS are needed and make those revisions.30 Since the Planning Board is responsible for the accuracy of the FEIS,31 the revisions and/or the supplements must include all necessary corrections. The need for additional studies, revisions, and supplementation is apparent. The DEIS lacks many different studies that are essential to conducting a proper SEQRA review. Additionally, the analysis in the DEIS is inadequate. Too many crucial elements are missing and, as discussed in the sections above, the DEIS cherry-picks information and does not take a hard look at the impacts of the proposed project. The Planning Board, as lead agency, is responsible for the FEIS and these inadequacies must be addressed. First, as pointed out by the Planning Board's consultant Nelson Pope Voorhis ("NPV"), there are a number of discrepancies and issues with the groundwater modeling used in the DEIS. Additionally, there are a lot of unanswered questions because of the inadequacy of the modeling the DEIS did. The following quotes are from the NPV comments dated, June 26, 2023: 27 6 NYCRR§ 617.9(a)(7). 28 Environmental Impact Review in New York-Gerrard,Ruzow&Weinberg(Matthew Bender 2022)Chapter 3, Section 13[d]. 29 See Webster Assoc. v. Town of Webster, 59 N.Y.2d 220,228(1983) ("the omission of a required item from a draft EIS cannot be cured simply by including the item in the final EIS"). 30 6 NYCRR§ 617.9(b)(8). 3 6 NYCRR§ 617.9(b)(8). 51 "The groundwater model used by project consultants predicts a groundwater travel time of 4 to 4.5 years from the western boundary of the proposed excavation area to Mattituck Creek based on a particle's expected curvilinear path from 40 feet below the water table to the Creek. How was this depth and path determined?Based on the County's time of groundwater travel map, the time of travel is more likely 2- 3 years and would be less where drainage and sanitary systems are proposed. If a volatile organic compound or other chemical that is lighter than water is released into the ground wouldn't this pollutant remain at the interface of the water table and vadose zone and reach the creek much sooner, especially if it is from the septic systems or leaching galleys? If so, what would be the time of travel of a VOC to the Creek?" "The last paragraph in Section 4, p. 28 of the Groundwater Modeling Report indicates that over the next few decades sea level is expected to rise by 16$ inches and groundwater beneath the proposed excavated area would be expected to rise 1.31 feet but there is no indication of if or how, in conjunction with the proposed project, this would impact nearby wells." "Page 45, under "Water Supply and Surrounding Wells, "includes an SYC annual water demand estimate of 1,058+ god. Since activity at the yacht club is seasonal, what is the estimated demand in gallons per day for water during the boating season? If demand is greater, how does that affect the hydrologic analyses?" "Second paragraph,p. 106 regarding sea level rise states that: "MHW at the subject property coincides with the top of the bulkhead and was mapped at approximately4.01 feet. Based on a16-inch or 1.33feet projection in the 2050s, MHW would be expected to increase to 5.3 feet AMSL. The existing bulkhead ranges from 6.0 feet to 6.8 feet, and thus, would remain higher than MHW." The first sentence seems to say that the existing bulkhead is at 4.01feet,while the second sentence says that it ranges from 6.0$ feet to 6.8 feet. Please explain, correct or clarify the discrepancy." "The DEIS discusses fire prevention requirements for the proposed LPG tanks. LPG is known to be relatively clean,however,based on the discussions in the DEIS, it is not stated definitively whether the new LPG above ground storage tanks and their future contents are subject to the standards and requirements of Article 12 of the Suffolk County Sanitary Code. Please provide a direct response as to whether the tanks (LPG) are subject to these requirements or not, and why it is, or isn't subject to Article 12 requirements. If it is, how the storage facilities will comply or not comply, and any mitigation proposed." Furthermore, these additional studies are needed: • A four-season traffic study of the portion of the truck route in Riverhead. This was not done although the scope clearly calls for it. 52 • A new pavement damage study that includes taking cores in the road to determine road profiles (composition and thickness). • A description and analysis of the truck route the concrete trucks will take. The route is unlikely to be the same as the haul truck route given the location of batch plants in the area. The number of concrete truck deliveries was significantly underestimated. • Survey for presence of Northern Long-eared Bat on the property or Mill Road Preserve in December-February. The survey results must be analyzed by NYSDEC or their approved consultant. • A public need study to determine the market for the yacht storage facilities. In addition, many analyses should be redone to reflect the higher haul truck counts indicated (or that will be indicated) in comments: - Traffic - Impacts to Pedestrians -Air quality - Pavement damage (after the new data collection mentioned above) -Vibration -Noise - Impacts to historic structures -Visual impact studies should be redone with proper methodologies. The Planning Board should require extensive supplementation, revision, and correction of the EIS's analysis and conclusions before and in the process of preparing an FEIS, before issuing a findings statement and making a decision on the application. 53 8. The Planning Board and the Landowner Have an Obligation to Protect Threatened and Endangered Species. The Planning Board must consider obligations arising pursuant to the New York State Endangered Species Act, 6 NYCRR Part 182, and the federal Endangered Species Act, 16 U.S.C. §§ 1531-1544. Since there are multiple species that are threatened, endangered, or of special concern that have habitat on the subject property, it is imperative that the Planning Board ensures that the statutes are properly followed. "The [Endangered Species Act] generally prohibits the 'take' of any members of endangered animal species, defining 'take' as 'to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."' Sierra Club v. U.S. Army Corps ofEng'rs, 803 F.3d 31, 40 (D.C. Cir. 2015) (quoting 16 U.S.C. §§ 1532(19), 153 8(a)(1)(13)). "`[H]arm' in the Act's definition of`take' means an act which actually kills or injures wildlife and that such act may include `significant habitat modification or degradation where it actually kills or injures wildlife' by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Babbitt v. Sweet Home Chapter of Cmtvs.for a Great Or., 515 U.S. 687, 690. Pursuant to the Endangered Species Act § 9(a)(1)(B), it is unlawful for any person to "take" any listed species. The DEIS begins its section on endangered species by saying, "No endangered, threatened, or rare species or significant ecological communities were observed during the ecological surveys conducted." DEIS p. 131. However, the section goes on to admit the expected presence of two endangered species, the Northern Long-eared Bat and Sharp-shinned Hawk, as well as two species of special concern, the Eastern Box Turtle and Cooper's Hawk. The NYSDEC relies on mapping of endangered, threatened and rare species, and species of special concern, by the New York Natural Heritage Program(NYNHP). Save the Sound requested the NYNHP consult the map for the area including the project site. On July 7, 2023, Nicholas Conrad of the NYNHP reported in an email that "the Strong's Yacht Storage Proposed Boat Storage project is within 3 miles of a few confirmed summer observations of Northern long-eared bat. The bat locations are 2.5 to 3 miles away from the project site." Michelle Gibbons, NYSDEC Regional Wildlife Manager, told Save the Sound that Region 1 is regulating locations within three miles of the sites shown on the NYNHP maps. In addition, Strong's ecological consultant, Dr. Charles Bowman, testified on June 5, 2023, hearing that NLEBs are on the subject property. The North Fork Audubon Society has been documenting field observations of nine bat species detected on the border of the Strong's Property and Mill Road Preserve. An independent bat researcher, Dr. Kristjan Mets, is analyzing the acoustic recordings performed by North Fork Audubon Society and concluded the NLEB was detected at the boundaries of the Strong's site. More analyses of the acoustic recordings for other species are underway. Included in North Fork Audubon Society's list is another endangered species of bat, the Indiana Bat. In addition to the species listed as federally endangered, there are species that are considered endangered in New York, like the Piping Plover, that also rely on the subject property as habitat. The 600+ trees that the proposed action is planning to remove are components of a coastal oak-beech forest 54 classified as "vulnerable"by the New York State Forest Management Plan. As documented, this forest contains prime bird and wildlife habitat for these endangered species. Additionally, the Eastern Box Turtle is a species of special concern and a species of greatest conservation need. During the winter, they burrow and would be undetectable to the workers supposedly attempting to herd them up and contain them in special pens. This is an unworkable and inadequate mitigating measure that will not ensure the protection of the Eastern Box Turtle. Further, tree felling, grubbing, and sand hauling in the winter months, as planned to avoid the NLEB, would unearth and destroy these turtles, which nest underground in the very forest the applicant proposes to remove. There is a series risk concern that the NLEB and the other endangered and threatened species could be harmed ("taken") by the proposed action. Winters in Suffolk County are becoming shorter and warmer due to climate change. Because of that fact, the NLEB could potentially be there in February or earlier. Limiting the cutting of trees to the months of December through February is not an adequate mitigating measure to ensure the protection of the NLEB. Moreover, as DEC has explained, "[p]rojects that are intended to convert forest to other land uses have a greater impact on NLEB than projects that allow for the regeneration and retention of forests on the landscape. With the exception of Suffolk County, trees are not currently a limiting resource for NLEB. However, the species also uses forests of all types for feeding. When forest is converted to another use, these areas no longer provide any benefit to NLEB.1132 Replacing 600+ fully grown trees with newly planted trees will harm the habitat of all of these different species. Additionally, changing the entire landscape by excavating 4.59 acres of materials will also harm the species habitat. While certain mitigating measures have been proposed, this is not enough to absolve the Planning Board and Strong's of their obligations under the State and Federal endangered species statutes. The full scope of the harm to these endangered species is not yet fully known. More study should be conducted and the full extent of the harm needs to be revealed to comply fully with these statutes. Pursuant to, 6 NYCRR § 182.9, we recommend making request to DEC for a determination as to whether the proposed activity is likely to result in the take or taking of any endangered or threatened species.33 Additionally, the federal Endangered Species Act also prohibits the applicant from"taking" and threatened or endangered species. The Planning Board has responsibility to ensure that endangered and threatened species are properly protected and that the applicable statutes are followed. 32 https://,N-w-w.dec.ny.gov/animals/I06090.html 33 Any person proposing an activity or any entity with regulatory oversight over a proposed activity may request a determination from the department as to whether the proposed activity is likely to result in the take or taking of any species listed as endangered or threatened in this Part and is therefore subject to regulation under this Part. Failure to ask the department for such a determination does not remove the subject activity from the potential for regulation under this Part. 6 NYCRR§ 182.9 55 CONCLUSION We thank the Planning Board for its consideration of these comments. We are available to discuss any of them at your convenience. 56 Attachment A COUNTY OF SUFFOLK Y }s Steve Bellone SUFFOLK COUNTY EXECUTIVE Natalie Wright Department or Economic Development and Planning Commissioner Division of Planning and Environment STAFF REPORT SECTIONS A14-14 THRU A14-24 OF THE SUFFOLK COUNTY ADMINISTRATIVE CODE Applicant: Strongs Yacht Center Municipality: Town of Southold Location: Terminus of Mill Road approximately 400 feet east of Naugles Road Received: 2/18/2020 File Number: SD-20-01 T.P.I.N.: 1000 10600 0600 010000 Jurisdiction: within 500 feet of Mattituck Creek ZONING DATA • Zoning Classification MII and R80 • Minimum Lot Area (Sq Ft): 80000 • Section 278: NA • Obtained Variance: NA SUPPLEMENTARY INFORMATION • Within Agricultural District: No • Shoreline Resource/Hazard Consideration: Yes • Received Health Services Approval: No • Property Considered for Affordable Housing Criteria: No • Property has Historical/Archaeological Significance: Yes • Property Previously Subdivided: No • Property Previously Reviewed by Planning Commission: No o Map Yield: NA • SEQRA Information: Yes • SEQRA Type Unlisted • Minority or Economic Distressed No SITE DESCRIPTION • Present Land Use: Marina • Existing Structures: Four 1 story metal buildings; 2 story frame building; 1 story frame house, 7 garages, pool and shed • General Character of Site: rolling • Range of Elevation within Site: 10-70 feet above MSL • Cover: wooded, gravel/asphalt/concrete and buildings. • Soil Types Carver, Plymouth and Riverhead associations. • Range of Slopes (Soils Map): 3-35% • Waterbodies of Wetlands: Mattituck Creek Suffolk County Planning Commission 1 3/25/2020 NATURE OF SUBDIVISION/ NATURE OF MUNICIPAL ZONING REQUEST • Type: site plan • Layout: linear • Area of Tract (Acres): 32.9559 • Yield Map: NA o No. of Lots: 1 o Lot Area Range (Sq. Ft.): 1 lot =32.9559 ac • Open Space (Acres): 22.59 ACCESS • Roads: Public • Driveways: private ENVIRONMENTAL INFORMATION • Stormwater Drainage o Design System: catch basins - leaching pools o Recharge Basins: no • Groundwater Management Zone: IV • Water Supply: public • Sanitary Sewers: septic tank and leaching pools PROPOSAL DETAILS OVERVIEW Applicants seek Town of Southold Planning Board Site Plan approval for the construction of 101,500 SF of boat storage in two one-story buildings (52,500 SF [Bldg. 1.] and 49,000 SF [Bldg. 2.]) plus associated site "improvements" including grading, storm water drainage, water supply, and sewage disposal. In addition, traditional concrete and evergreen retaining walls, French drains, two locations for duel 2,000 gallon Liquid Propane above ground storage tanks and a six foot high black vinyl clad chain link fence along the top of the proposed evergreen retaining wall is proposed. The new storage buildings are to be added to an existing boat yard and building complex with an existing gross floor area of 62,245 SF (now or formerly known as Strong's Yacht Center). It is presented by the applicant to the Town Planning Board that approximately 3.9 acres of the site will be physically disturbed. The proposed boat yard expansion is located on a parcel 32.6 acres in area in the MII (Marine District) and R-80 (Residential-low density) zoning districts. An out parcel and several out buildings take access from a 20' right-of-way at the north end of the site. As noted the parcel is "split zoned". The westerly portion of the site is in the R-80 zone. The proposed development site is located on the south side of Mill Road approximately 100 feet east of Naugles Road at Mattituck and is to be only on the south-east side of the lot in the Marine District. The limit of clearing is roughly along the zoning boundary and approximately 120 feet south of the out parcel. The residentially zoned western-portion of the site is not to be developed with the exception of a construction access road noted below. According to referral materials to the Suffolk County Planning Commission from the Town of Southold Planning Board, the proposal includes the construction of a "haul road"from Mill Road eastward across the residentially zoned and wooded area of the property for the excavation and removal of approximately 130,000 cubic yards of soil off site. Suffolk County Planning Commission 2 3/25/2020 The proposed haul road, according to referral materials, will be constructed prior to the commencement of excavation and construction activities. No planned route across the parcel is provide in referral materials to the Suffolk County Planning Commission (plans prepared by Young and Young last revised Nov. 20 2018). The subject development property is bound on the west by Mill Road (Town road). To the north the site is adjacent to a detached dwelling on a low density lot and the terminus of Mill Road. The subject lot is adjacent to Mattituck Creek to the east and Town of Southold owned undeveloped land and detached residential dwellings to the south. The zoning pattern in the area is predominantly residential (R-40 and R-80)with several Marine District properties along Mattituck Creek. Potable water is to be supplied by the Suffolk County Water Authority via a water main extension of 765 feet along Mill Road. In addition, according to referral materials to the Suffolk County Planning Commission from the Town of Southold Planning Board, approximately 1,665 gpd of sanitary liquid waste is proposed to be directed to a conventional subsurface sewage disposal system. Onsite below grade storm water management structures are intended for the expansion of the proposed boat storage area Total parking required by Town of Southold zoning law is not shown on the site plan or referenced in any materials referred to the Commission and is anticipated to require a variance from the Town. The area around the proposed boat storage buildings is to be stone blend and/or gravel as is typical throughout the existing development. The total area of buffers (approximately 23 acres) is contained mostly on the R-80 residentially zone portion of the site and a small area north of proposed Building 1 between it and the out parcel. The proposed project site is situated over Hydro-geologic Management Zone IV. The subject parcel is not located in the Southold Special Groundwater Protection Area (SGPA). The site is not located in a Suffolk County Pine Barrens Zone. The development site is not located in a State designated Critical Environmental Area. The property is however, listed in the NYS Heritage Area— Long Island Heritage Area. The site has tidal wetlands on site along Mattituck Creek at the southern end of the property and is likely to be regulated by the Town of Southold and the NYS DEC. The subject property is within the 100 year and 500 year flood plain. The subject property is situated in a Federal Emergency Management Agency (FEMA) Federal Insurance Rate Map (FIRM) flood zone A with a base flood elevation set at 7 feet above mean sea level. Based on the extreme topographic change behind the existing buildings the flood zone stops at the existing retaining walls. The Sea, Lake and Overland Surges from Hurricanes (SLOSH) model applicable for the subject site demonstrates the subject property to be effected by surges from category 1 and 2 hurricanes at the existing marina and penetrating into the subject development site at the southern end. STAFF ANALYSIS GENERAL MUNICIPAL LAW CONSIDERATIONS: New York State General Municipal Law, Section 239-1 provides for the Suffolk County Planning Commission to consider inter- community issues. Included are such issues as compatibility of land uses, community character, public convenience and maintaining a satisfactory community environment. Suffolk County Planning Commission 3 3/25/2020 The proposed construction of the two boat storage buildings are within the MII zoning district along Mattituck Creek. The proposed use on site is consistent with water related uses though not water dependent due to the fact that boat storage can be accomplished inland. As existing, the subject property that is to include this action is adequately buffered from existing residential uses to the south. Issues related to compatibility of land use or community character may arise from the creation of construction access to Mill Road for the excavation and removal of soil from site. LOCAL COMPREHENSIVE PLAN RECOMMENDATIONS: The Town of Southold 2019 Master Plan update recommended commercial use of the subject site. For the Maritime District the 2019 Draft Comprehensive Plan references the 2005 LWRP for specific recommendations. The LWRP appears to recommend residential for this site but is extremely supportive of Water dependent, related and enhanced uses. It is the belief of the staff that the application is consistent with local plan recommendations. However, it is apparent that the current zoning pattern on site is indicative of the extent of the marine activities existing and into the future that should be permitted. SUFFOLK COUNTY PLANNING COMMISSION GUIDELINE CONSIDERATIONS: The Suffolk County Planning Commissions has identified six general Critical County Wide Priorities that include: 1. Environmental Protection 2. Energy efficiency 3. Economic Development, Equity and Sustainability 4. Housing Diversity 5. Transportation and 6. Public Safety These policies are reflected in the Suffolk County Planning Commission Guidebook (unanimously adopted July 11, 2012). Below are items for consideration regarding the above policies: Suffolk County Planning Commission Jurisdiction over this application is triggered by the project sites proximity to Mattituck Creek. It rises to a regionally significant project by Commission definition as it is located in one of the five East End towns and proposes the construction of more than 50,000 square feet of gross floor area. Because of the subject action's location proximate to Mattituck Creek, matters related to coastal process become important. Issues such as storm water runoff from site, waste water discharge and the treatment of nitrogen containing effluent, periodic tidal flooding and ground water swelling are particular for this site and application. Moreover, the principles of "Climate Change" puts forth the notion of rising seas level, more frequent and severe and frequent storm events including more violent storm surges. As indicated above "boat storage" is not a water"dependent" use. While "related" to water, boat storage is often accommodated inland away from the waterfront. It is the belief of staff that storage of boats on site is not essential but is related and enhances the functionality of the operations on site. It is questioned by Suffolk County Planning Commission staff if the excavation and removal of approximately 130,000 cubic yards of soil off site is necessary. Best management practice for site design is to have balanced cut and fill for site development. Suffolk County Planning Commission 4 3/25/2020 No soils should be removed. This is not the case here. The intended excavation will create a bowl on site where storm flood waters from Mattituck Creek will surge into. Details shown on plans prepared by Young and Young last revised Nov. 20 2018 and referred to the Suffolk county Planning Commission from the Town of Southold Planning Board show elevation of the finished excavation to be approximately 9 feet above mean sea level. Two feet above the base flood elevation and would be susceptible, as are other areas of similar elevations, to surges and flooding from category 2 hurricanes in the least. While this could be considered beneficial to the area for additional flood water storage during storm events, the fact that there is proposed to be building Improvements and infrastructure in the created flood plain (excavation) will only set up a "repetitive economic loss" scenario for the boat storage building owners going into the future. It is not demonstrated in the referral materials to the Suffolk County Planning Commission from the Town of Southold Planning Board that there has been much consideration to the Climate Change/sea level rise, SLOSH or flood zone issues. As noted above, conventional subsurface sewage disposal systems and onsite below grade storm water management structures are intended for the expansion of the proposed boat storage area. Details shown on plans prepared by Young and Young last revised Nov. 20, 2018 and referred to the Suffolk county Planning Commission from the Town of Southold Planning Board suggests that the elevation of the water table during normal groundwater conditions would be 3 feet below the bottom of the drainage rings. Test hole data from only two test holes provided on the plans referred to the Commission noted above show depth to water to be 6.4 feet to 7.6 feet below existing grade. It is not clear that, as designed, the existing waste and storm water systems would function during elevations of the groundwater table due to extreme climatic events. An alternative development approach would be to construct the proposed boat storage buildings in the same locations at or near the existing grade and not excavate down to elevation 9. This would require an access road at an appropriate slope from between any two of the existing storage building to the top of the boat storage building footprint. One such design could, for example, be from between metal storage buildings 7 and 8 and southerly behind building 8 and curl northward to the building envelope. This route runs along the less steeply sloped parts of the site and can mitigate excavation issues. Building at the existing grade lessens the repetitive economic loss concern and also addresses the functionality of the waste and storm water systems proposed. The proposed haul road could still be the temporary construction route and left for emergency access to the site after construction. Opportunities would exist that would warrant the utilization of storm water treatment through natural vegetation and green methodologies. This alternative should be investigated fully. Significant buffering of Mill Road and properties to the south of the new boat storage buildings would be appropriate for this alternative as would "Dark Sky" lighting techniques utilized on site. This is an important mitigation to lessen lighting impacts to the roadway right-of-way and single family housing to the south of the proposed boat storage buildings. Application materials referred to the Suffolk County Planning Commission from the Town of Southold regarding the consideration of energy efficiency indicate little consideration. The applicants should be encouraged to review the Suffolk County Planning Commission Guidebook particularly with respect to energy efficiency and incorporate where practical elements contained therein. No trip generation or traffic study information was provided in referral materials to the Suffolk County Planning Commission. The applicant should be encouraged to begin/continue dialogue with the Town of Southold. Little discussion is made in the petition to the Town and referred to the Commission on public Suffolk County Planning Commission 5 3/25/2020 safety and universal design. STAFF RECOMMENDATION Approval of the Site Plan referral from the Town of Southold Planning Board to the Suffolk County Planning Commission for"Strong's Storage Buildings" proposing the construction of 101,500 SF of boat storage in two one-story buildings (52,500 SF [Bldg. 1.] and 49,000 SF [Bldg. 2]) plus associated site "improvements" including grading, storm water drainage, water supply, and sewage disposal; with the following condition and comments: Condition: 1. No excavated soil shall be removed off site. It is questionable if the excavation and removal of approximately 130,000 cubic yards of soil off site is necessary. The intended excavation will create a bowl on site where storm flood waters from Mattituck Creek will surge into. Building Improvements and infrastructure in the created flood plain (excavation) will only set up a "repetitive economic loss" scenario into the future for the boat storage building owners. 2. An alternative development approach shall be investigated in an expanded Full Environmental Assessment Form (FEAF) that would construct the proposed boat storage buildings in the same locations at or near the existing grade and not excavate. Building at the existing grade lessens the repetitive economic loss concern and also addresses the functionality of the waste and storm water systems proposed. See the adopted report of the Suffolk County Planning Commission for further details on this alternative. Comments: 1. Review by the Suffolk County Department of Health Services is warranted for the proposed treatment of project wastewater and the applicant should be directed to begin/continue dialogue with the Suffolk County Department of Health Services. 2. It is not clear that, as designed, the existing waste and storm water systems would function during elevations of the groundwater table due to extreme climatic events. The applicant should be encouraged to investigate Innovative Onsite Alternative Waste Water Treatment Systems (IO/AWTS) including shallow drainage and wetland treatment systems. 3. The applicant should be encouraged to review the Suffolk County Planning Commission publication Managing Stormwater-Natural Vegetation and Green Methodologies and incorporate into the proposal, where practical, design elements contained therein. 4. "Dark Sky" lighting techniques should be utilized on site. 5. The applicant should be encouraged to review the Suffolk County Planning Commission Guidebook particularly with respect to energy efficiency and incorporate where practical, any elements contained therein including commercial rooftop solar etc.. 6. No trip generation or traffic study information was provided in referral materials to the Suffolk County Planning Commission. Suffolk County Planning Commission 6 3/25/2020 7. The applicant should review the Planning Commission guidelines particularly related to public safety and incorporate into the proposal, where practical, design elements contained therein. 8. The applicant should review the Planning Commission guidelines particularly related to universal design and incorporate into the proposal, where practical, design elements contained therein. Suffolk County Planning Commission J 3/25/2020 i 1 F 1 J 7�' 2 _, ¢ 1'h1aP4W h pp f RFJ Wk KPi4-• F , l 5 A IA If i j� aya t � T w'a Proposed 1 Story Al Boat Storage Bldg ;. r ' ..ipF. 52,500 SF �n Its Proposed 1 Story ...;T Boat Storage Bldg f 49,000 SF f YPJIFF „%Q — F I t25 +yY,iII 'FA ;-Q9 A PrNgF Scale (in Feet) IK•eGA+ O� },[fes. 200 Suffolk County Planning Commission $ 3/25/2020 O'IeSIM W1nV vv CE ZY B nom"P...S Nrppiwypp�py7Nuplyaa�r6uw1s i00Z05 dtlIP%Y1WJu��MN Ae6�IS t00Z RS1� KAd�S-ZL / 2 O V O Y N« O O N Q fid. o O c 0 O NM0N WUoN6 d (1) 'a 'a Q a N 00 Z C v' Q p)O l0 Jo X 2 0 a 0 O - c0 i J Of'2 O v �yc 5� °o Q o w � m o SNS CV Z t U U) i r v z - 0 0 o pQ Y a T w WO U1 Z LL O S N } �v 7 /62 ob )rtw o co M' 0 I O I I Z U I � w Q N O N ^^L I.L L.L W 3 � - U MIN N LU isf co 9 9a °-Its Suffolk County Planning Commission 9 3/25/2020 Attachment B COUNTY OF SUFFOLK �R m� Steven Bellone SUFFOLK COUNTY EXECUTIVE SUFFOLK COUNTY PLANNING COMMISSION Summary of Regularly Scheduled Meeting Jennifer Casey Sarah Lansdale, AICP Chairwomen DIRECTOR OF PLANNING Date: April 1, 2020 Time: 2:00 p.m. Location: ZOOM Video Conference Due to the Novel Coronavirus(COVID-19)Emergency and State and Federal bans on large meetings or gatherings and pursuant to Governor Cuomo's Executive Order 220.1 issued on March 12,2020 suspending the Open Meeting Law,the Suffolk County Planning Commission Meeting will be held electronically via ZOOM. Instead of a public meeting open for the public to attend in person,members of the public may Listen to or log into the video conference. The public was encouraged to send in their statements for the public portion to the address above or email to Planning@suffolkcountyny.gov. The Minutes of the meeting will be posted on the Suffolk County Planning Commission website. Members Present (13) Jennifer Casey—Town of Huntington Adrienne Esposito —Villages Over 5,000 Samuel Chu —Town of Babylon Rodney Anderson —At Large Matthew Chartrand —Town of Islip John Condzella —Town of Riverhead John Finn —Town of Smithtown Kevin Gershowitz—At Large Michael Kaufman —Villages Under 5,000 Michael Kelly—Town of Brookhaven Errol Kitt—At Large Thomas McCarthy—Town of Southold Nicholas Morehead —Town of Shelter Island Members Not Present (0) Staff Present (6) Sarah Lansdale — Director of Planning Andrew Freleng — Chief Planner Ted Klein — Principal Planner John Corral — Environmental Projects Coorindator Christine DeSalvo— Principal Office Assistant Brittany Toledano—Assistant County Attorney (Counsel to the Commission) H.LEE DENNISON BLDG ■ 100 VETERANS MEMORIAL HWY,11th FI ■ P.O.BOX 6100 ■ HAUPPAUGE,NY 11788-0099 ■ (631)853-5191 Meeting Summary (continued) April 1, 2020 Call to Order - The Suffolk County Planning Commission meeting of April 1, 2020 was called to order by Chairwoman Jennifer Casey at 2:05 p.m. The Pledge of Allegiance Guest Speaker(s) • Town of East Hampton, Director of Planning, Joann Pahwul, mentioned in her presentation that the Moratorium being considered by the Commission is a Town Board initiative and the Board held a preliminary hearing and are looking for preliminary comments, Lisa Liquori, of Dodson & Flinker, Consultant to the Town of East Hampton gave a presentation on the East Hampton Hamlet Studies. • Town of Southold, Director of Planning, Heather Lanza, gave a presentation on the proposed 6 month Moratorium (extension)—"State Route 25/Love Lane Intersection and Surrounding Area" to the Planning Commission and addressed questions from commission members. Public Portion — No public portion Section A14-14 thru A14-25 of the Suffolk County Administrative Code • Town of East Hampton, Master Plan for Amagansett's two main Commercial Districts and Master Plan for Montauk's two main Commercial Districts, located in the Town of East Hampton. As part of the Town process of adopting amendments to the Town Comprehensive Plan. The East Hampton Town Board has referred two Hamlet Plans (Amagansett and Montauk) to the Suffolk County Planning Commission. Received on February 24, 2020. The Commission's jurisdiction is Adoption of Comprehensive Plan amendments - Hamlet Plans As with prior East Hampton Hamlet plans referred to the Suffolk County Planning Commission the purpose of these initiatives is to better understand and address the potential changes and challenges facing the business areas within the Town. To do that the East Hampton Town Board retained a consulting team to prepare a Hamlet Plan for each of the Town's 5 planning Areas (School Districts) including Wainscott, East Hampton, Amagansett, Springs and Montauk along with a Town-wide economic business district analysis. The preparation of these detailed studies was recommended in the 2005 Town of East Hampton Comprehensive Plan. As noted in the referral material to the Suffolk County Planning Commission from the East Hampton Town Board the Planning Process for these hamlet plans was a collaborative process including public charrettes, open Town Board meetings, and several public workshop and hearings on the draft and final plans. The Amagansett Hamlet Plan focuses on the 2 major commercial areas along Montauk Highway; Amagansett"Center and Amagansett "East" and also provides an inventory and analysis of the entire planning area with regard to historic and cultural resources, demographics, natural resources, environmental challenges, zoning, land use, economy, residential and commercial buildout and transportation and infrastructure. The Plan provides general objectives and an illustrative master plan depicting a vision for how the Amagansett business district could be redeveloped over the coming decades based on the input received during the multiple public workshops. H.LEE DENNISON BLDG ■ 100 VETERANS MEMORIAL HWY,11th FI ■ P.O.BOX 6100 ■ HAUPPAUGE,NY 11788-0099 ■ (631)853-5191 Meeting Summary (continued) April 1, 2020 Section A14-14 thru A14-25 of the Suffolk County Administrative Code (continued) • Town of East Hampton, Master Plan for Amagansett's two main Commercial Districts and Master Plan for Montauk's two main Commercial Districts (continued) The Montauk Hamlet Plan report focuses on the 2 major commercial areas referred to as Montauk Downtown and Montauk Harbor but also provides an inventory and analysis on the entire Planning Area with regard to historic and cultural resources, demographics, etc. and has a focus on the Montauk Long Island Rail Road Station and how the Montauk Hamlet could be redeveloped over the coming decades based on the input received during the multiple public workshops. The staff report recommended approval of the Town of East Hampton Hamlet Plans for Amagansett and Montauk with five (5) comments for their consideration and use by the Town of East Hampton. After deliberation the Commission resolved to agree with the staff report and approve the Hamlet Plans with five (5)comments. The motion to approve the Town of East Hampton's Hamlet Studies with the five (5)comments for their consideration and use by the Town of East Hampton was made by Commission member Kelly and seconded by Commission member Finn, vote to Approve; 13 ayes, 0 nays, 0 abstentions. • Strongs Yacht Center, Town of Southold, The application is referred by the Town of Southold, received on February 18, 2020 the Commission's jurisdiction for review is that the application is that it is within 500 feet of Mattituck Creek. Applicants seek Town of Southold Planning Board Site Plan approval for the construction of 101,500 SF of boat storage in two one-story buildings (52,500 SF [Bldg. 1.] and 49,000 SF [Bldg. 2]) plus associated site "improvements" including grading, storm water drainage, water supply, and sewage disposal. In addition, traditional concrete and evergreen retaining walls, French drains, two locations for duel 2,000 gallon Liquid Propane above ground storage tanks and a six foot high black vinyl clad chain link fence along the top of the proposed evergreen retaining wall is proposed. Staff deemed the referral to be Incomplete and noted that the referral will not be reviewed until certain information is submitted through the offices of the municipal referring agency: At the time of Site Plan referral to the Suffolk County Planning Commission a full environmental quality review of the proposal shall be included that has further information pertaining to channel depths at the mouth and course of Mattituck Creek particularly in the off shore location creek- ward of the shoreline of Strong's Yacht Center. There is inadequate information regarding the typical type and size of boats to be serviced by the "yacht center" as a result of the proposed new boat storage buildings. Future referral material to the Suffolk County Planning Commission with respect to the Suffolk County Administrative Code Article XIV Section A14 - 25 shall include facts as to the maximum beam, draft, weight and length of water craft that will be serviced at the marina after completion of the proposed boat storage buildings. There is inadequate information regarding the necessity to excavate soils at the subject location of the proposed action. Referral material to the Suffolk County Planning Commission with respect to the Suffolk County Administrative Code Article XIV Section A14-25 shall include an explanation of the need for the proposed elevation of the floor of the boat storage buildings. H.LEE DENNISON BLDG ■ 100 VETERANS MEMORIAL HWY,11th FI ■ P.O.BOX 6100 ■ HAUPPAUGE,NY 11788-0099 ■ (631)853-5191 Meeting Summary (continued) April 1, 2020 Section A14-14 thru A14-25 of the Suffolk County Administrative Code (continued) • Strongs Yacht Center, Town of Southold (continued) The Suffolk County Planning Commission would like further clarification on Town of Southold protection of wetland regulations with respect to issues of soil erosion and sedimentation from clearance, grading, excavation or other disturbance of steeply sloped soils to be held by retaining walls on adjacent areas to tidal wetlands. After deliberation the Commission resolved to generally agree with the staff report and deemed the referral to be incomplete due to lack of information received. A motion was made by Commission member McCarthy and seconded by Commission member Anderson,vote to deem Incomplete; 11 ayes, 1 nays (Gershowitz), 0 abstentions. • Town of Southold, Moratorium (extension), Moratorium (extension)— State Route 25/1-ove Lane Intersection and Surrounding Area. Received on March 3, 2020 (8/8/2019). The Commission's jurisdiction is Moratorium area is adjacent to NYS Rte. 25. The Southold Town Board has referred to the Suffolk County Planning Commission a "local law in relation to the six (6) month extension of a temporary moratorium on the issuance of approvals and/or permits for the parcels of property in the State Route 25 Love Lane Intersection and surrounding area". This would be the second extension and the third six (6) month period making the total of the three moratoria eighteen (18) months (1.5 yrs.). Staff indicated that it would appear that the Town overrode or disregarded the Suffolk County Planning Commission resolution. With respect to this Local Law referral, none of the above information has been submitted with this latest request and the language of the Local Law is essentially identical to language in prior iterations of the moratorium. It is recommended by staff that the proposed Local Law in relation to the six (6) month extension of a temporary moratorium on the issuance of approvals and/or permits for the parcels of property in the State Route 25 Love Lane Intersection and surrounding area" be disapproved. A moratorium is, from one perspective, the most extreme land use action that a municipality can take because it suspends completely the rights of owners to use their property. After deliberation the Commission resolved to generally agree with the staff report and deemed the referral to be disapproved for three (3) reasons and a recommendation for more information was recommended. A motion was made by Commission member Finn, and seconded by Commission member Kaufman. Vote to disapprove, 10 ayes, 1 recusal (McCarthy), • Meeting Adjourned The motion to adjourn the meeting was made by Commission member Kaufman, seconded by Commission member McCarthy; and approved unanimously. H.LEE DENNISON BLDG ■ 100 VETERANS MEMORIAL HWY,11th FI ■ P.O.BOX 6100 ■ HAUPPAUGE,NY 11788-0099 ■ (631)853-5191 Attachment C COUNTY OF SUFFOLK RECEIVED k J l.,� 0 1 yry� pr� �,�,�, y Gin. ! ".,1' e SouthOd 1'0114,n 1 � Rlannong f3oa- rd OFFICE OF THE COUNTY EXECUTIVE Steven Bellone SUFFOLK COUNTY EXECUTIVE Natalie Wright Department of Commissioner Economic Development and Planning April 2, 2020 Town of Southold 53095 Main Road P.O. Box 1179 Southold,NY 11971 Attn: Elizabeth Neville, Town Clerk Re: Strongs Yacht Center Local File No.: N/A S.C.T.M. No.: 1000 10600 0600 0100000 and 013004 S.C.P.C. File No.: ZSR-20-09 Dear Ms. Neville: The Suffolk Planning Commission at its regular meeting on April 1, 2020, reviewed the referral from the Town of Southold entitled, "Strongs Yacht Center" referred to it pursuant to Section A14-14 thru A14-25, Article XIV of the Suffolk County Administrative Code. The attached Resolution signifies action taken by the Commission relative to this application, Very Truly Yours, Sarah Lansdale Director of Planning e, By Christine DeSalvo Andrew P. Freleng. Chief Planner APF/cd Division of Planning and Environment cc.: Heather Lanza, Director of Planning H.LEE DENNISON BLDG a 100 VETERANS MEMORIAL HWY,4th FI a P.O.BOX 6100 m HAUPPAUGE,NY 11788-0099 n (631)853-5191 File No. SD-20-01 Resolution No. ZSR-20-09 of the Suffolk County Planning Commission Pursuant to Sections A14-14 to thru A14-25 of the Suffolk County Administrative Code WHEREAS, pursuant to Sections A14-14 thru A14-25 of the Suffolk County Administrative Code, a referral was received on February 18, 2020 at the offices of the Suffolk County Planning Commission with respect to the application of"Strongs Yacht Center"located in the Town of Southold WHEREAS, said referral was considered by the Suffolk County Planning Commission at its meeting on April 1, 2020, be it therefore, RESOLVED, that the Suffolk County Planning Commission, pursuant to NYS General Municipal Law Section 239-m 1. (c), the Suffolk County Administrative Code section A14-15C., and the Suffolk County Planning Commission Guidebook, Section 2.1A, deems the referred from the Town of Southold Planning Board to the Suffolk County Planning Commission for"Strong's Storage Buildings" proposing the construction of 101,500 SF of boat storage in two one-story buildings (52,500 SF [Bldg. 1.1 and 49,000 SF [Bldg. 2]) plus associated site "improvements" including grading, storm water drainage, water supply, and sewage disposal to be Incomplete, and be it further, RESOLVED, that the above noted referral will not be reviewed until the following information is submitted through the offices of the municipal referring agency: 1. At the time of Site Plan referral to the Suffolk County Planning Commission a full environmental quality review of the proposal shall be included that has further information pertaining to channel depths at the mouth and course of Mattituck Creek particularly in the off shore location creek-ward of the shoreline of Strong's Yacht Center. 2. There is inadequate information regarding the typical type and size of boats to be serviced by the "yacht center" as a result of the proposed new boat storage buildings. Future referral material to the Suffolk County Planning Commission with respect to the Suffolk County Administrative Code Article XIV Section A14 - 25 shall include facts as to the maximum beam, draft, weight and length of water craft that will be serviced at the marina after completion of the proposed boat storage buildings. 3. There is inadequate information regarding the necessity to excavate soils at the subject location of the proposed action. Referral material to the Suffolk County Planning Commission with respect to the Suffolk County Administrative Code Article XIV Section A14-25 shall include an explanation of the need for the proposed elevation of the floor of the boat storage buildings. 4. The Suffolk County Planning Commission would like further clarification on Town of Southold protection of wetland regulations with respect to issues of soil erosion and sedimentation from clearance, grading, excavation or other disturbance of steeply sloped soils to be held by retaining walls on adjacent areas to tidal wetlands. SCPC Stormwater Publication Icktfrflvmrwuffaikcounyyy i ri vl yawl l C purl krroi7�tn�ld�a�&iralira� �,1caar e ul`or c1r r r3cPho ci ( LIL * SCPC Guidebook IalAt�„H era y a[ rriiultyllyJs /Podi fC ,/QIgamY�ti?i,u 'AfPublicatw,rnVSCPC��ro°fekrle l�?a�.�df ZSR-20-09 File No.: SD-20-01 Town of Southold Strongs Yacht Center COMMISSION ACTIONS OF INCOMPLETE RESOLUTION AYE NAY RECUSE ABSENT ANDERSON, RODNEY At�.,�.. .. . ............ .................�.�wu.�_. Large X CASEY, JENNIFER....- �.. R -Town of Huntington X CHARTRAND, MATTHEW -Town of Islip X SAMUEL—Town of Babylon X CONDZELLA, JOHN —Town of Riverhead X ESPOSITO, ADRIENNE -Villages over 5,000 X . ._ .._ ..��....� ��, e�....m.a ... FINN, JOHN -Tow n of Smithtown X GERSHOWITZ, KEVIN G.-At Large X KAUFMAN, MICHAEL - Villages under 5,000 X .... ......�.. . MICHAEL .. .... ......... ........ KELLY, —Town of Brookhaven X KITT, ERROL—At Large.� .... _. ._..... ........................._ ..� X O EHEAD, NICHOLAS —Town of Shelter he .... M R X Island VACANT, -Town of East Hampton McCarthy, Thomas, -Town of Southold X VACANT -Town of f Southampton Motion: Commissioner McCarthy Present: 12 Seconded: Commissioner Anderson Absent: 1 Voted: 12 Recused: 0 Absent: 1 DECISION Incomplete Attachment D COUNTY OF SUFFOLK C -.... APR 2 2020 * ' - Panning Board Steven Bellone SUFFOLK COUNTY EXECUTIVE Natalie Wright Department of Commissioner Economic Development and Planning April 7, 2020 Town of Southold 54375 Route 25 P.O. Box 1179 Southold,NY 11971 Attn: Brian Cummings, Planner SEQRA Lead Agency Coordination Re: Strongs Yacht Center Municipal File No.: N/A S.C.T.M.No.: 1000 10600 0600 010000 and 013004 S.C.P.C. No.: SD-20-LD Dear Mr. Cummings: Your notification for SEQR Coordination was received by our agency on February 18, 2020. Please be advised that our agency,the Suffolk County Planning Commission,has no objection to the Town of Southold assuming Lead Agency status for the above referenced. The Suffolk County Planning Commission reserves the right to comment on this proposed action in the future and wants to be kept informed of all actions taken pursuant to SEQRA and to be provided with copies of all EAF's, DEIS's and FEIS's, etc. Please note that pursuant to New York State General Municipal Law section 239 and Article XIV of the Suffolk County Administrative Code, this latest action should be referred to the Suffolk County Planning Commission for review. Please note the following comments: Comment:. I. Because of the subject action's location proximate to Mattituck Creek, matters related to coastal process become important. Issues such as storm water runoff from site,waste water discharge and the treatment of nitrogen containing effluent, periodic tidal flooding and ground water swelling are particular for this site and application. Moreover,the principles of "Climate Change- puts forth the notion of rising seas level, more frequent and sever storm events including more violent storm surges. H.LEE DENNISON BLDG to 100 VETERANS MEMORIAL HWY,11th FI a P.O.BOX 6100 a HAUPPAUGE,NY 11788-0099 a (631)853-5191 2. Certain detailed information is lacking that would make environmental quality review of the potential adverse impacts of the proposed action thorough and complete. 3. "Boat storage" is not a water"dependent"use. While"related"to water,boat storage is often accommodated inland away from the waterfront. Storage of boats on site is not essential but is related and enhances the functionality of the operations on site. 4. It is questionable if the excavation and removal of approximately 130,000 cubic yards of soil off site is necessary. Best management practice for site design is to have balanced cut and fill for site development. No soils should be removed. This is not the case here. The intended excavation will create a bowl on site where storm flood waters from Mattituck Creek will surge into. Details shown on plans prepared by Young and Young last revised Nov.20 2018 and referred from the Town of Southold Planning Board show elevation of the finished excavation to be approximately 9 -10 feet above mean sea level. Only a few feet above the base flood elevation and would be susceptible, as are other areas of similar elevations, to surges and flooding from category 2 hurricanes in the least. 5. While the proposed excavation could be considered beneficial to the area for additional flood water storage during storm events, the fact that there is proposed to be building Improvements and infrastructure in the created flood plain (excavation) will only set Lip a "repetitive economic loss" scenario for the boat storage building owners going into the future.An explanation of the need for the proposed elevation of the floor of the boat storage buildings is in order. 6. Conventional subsurface sewage disposal systems and onsite below grade storm water management structures are intended for the expansion of the proposed boat storage area. Details shown on plans prepared by Young and Young last revised Nov. 20, 2018 and referred from the Town of Southold Planning Board suggests that the elevation of the water table during normal groundwater conditions would be 3 feet below the bottom of the drainage rings. Test hole data from only two test holes provided on the plans referred and noted above show depth to water to be 6.4 feet to 7.6 feet below existing grade. It is not clear that, as designed, the existing waste and storm water systems would function during elevations of the groundwater table due to extreme climatic events. 7. A full environmental quality review of the proposal should be included that has further information pertaining to channel depths at the mouth and course of Mattituck Creek particularly in the off shore location creek-ward of the shoreline of Strong's Yacht Center. 8. There is inadequate information regarding the typical type and size of boats to be serviced by the"yacht center"as a result of the proposed new boat storage buildings. Material evidences for this proposed action should include facts as to the maximum beam, draft, weight and length of watercraft that will be serviced at the marina after completion ofthe proposed boat storage buildings. H.LEE DENNISON BLDG m 100 VETERANS MEMORIAL HWY,11th FI a P.O.BOX 6100 m HAUPPAUGE,NY 11788-0099 2 (631)853-5191 9. An alternative development approach would be to construct the proposed boat storage buildings in the same locations at or near the existing grade and not excavate down to elevation 9. This would require an access road at an appropriate slope from between any two of the existing storage building to the top of the boat storage building footprint. One such design could, for example, be from between metal storage buildings 7 and 8 and southerly behind building 8 and curl northward to the building envelope. This route runs along the less steeply sloped parts of the site and can mitigate excavation issues. Building at the existing grade lessens the repetitive economic loss concern and also addresses the functionality of the waste and storm water systems proposed. 10. The proposed haul road could still be the temporary construction route and left for emergency access to the site after construction. Opportunities would exist that would warrant the utilization of storm water treatment through natural vegetation and green methodologies. This alternative should be investigated fully. 11. Significant buffering of Mill Road and properties to the south of the new boat storage buildings would be appropriate for this alternative as would "Dark Sky"lighting techniques utilized on site. This is an important mitigation to lessen lighting impacts to the roadway right-of-way and single family housing to the south of the proposed boat storage buildings. 12. The environmental quality review process should include the above information and analysis in order to take a complete and hard look at the potential adverse impacts of the proposed action. Sincerely, ;2 2 By Christine DeSalvo Andrew P. Freleng, Chief Planner Division of Planning and Environment APF/cd H.LEE DENNISON BLDG ■ 100 VETERANS MEMORIAL HWY,11th FI a P.O.BOX 6100 a HAUPPAUGE,NY 11788-0099 a (631)853-5191 Attachment E mo�466&5M4 5106 West Mill Road•P.O. Box 587 • Mattituck,NY 11952 April 20, 2022 The Honorable Scott Russell, Supervisor Honorable Members of the Town Board Town of Southold 53095 Main Road Southold,NY 11971 Re: Zoning Issues Surrounding SCTM#1000-106-13.7 or 5106 West Mill Road, Mattituck Dear Supervisor Russell and Members of the Town Board, We are reaching out to you to request clarification of a substantially impactful, and we believe erroneous, zoning change that occurred with the adoption of Local Law No.l-1989. When the town redrew its zoning map in 1989, the boundary between the R-80 and M-11 zones of SCTM#1000-106-13.4, located along the western side of Mattituck Creek, was shifted westward approximately 380 feet from its pre-1989 location. To date, we have been unable to confirm why there was a westward shift of the boundary. That shift resulted in a residential lot (SCTM #1000-106-13.7) —which is our home —becoming surrounded by the M-11 zone. Pursuant to New York Town Law §264-1, "Every zoning ordinance and every amendment to a zoning ordinance(excluding any map incorporated therein)adopted pursuant to the provisions of this chapter shall be entered in the minutes of the town board; such minutes shall describe and refer to any map adopted in connection with such zoning ordinance or amendment." After submitting a FOIL request to the Southold Town Clerk for copies of these documents, we were advised that they could not be located/provided. Attached to this letter is documentation, including a timeline, in support of our position that the current Town zoning map is incorrect and should be corrected to reflect what we believe to be the correct boundary between the R-80 and M-11 zones on tax lot#1000-106-13.4. We are aware of the proposed industrial project on the lot that surrounds our home, and want to remind the Town Board that pursuant to Southold Town Law §280-8(D), since no construction has been started, no ground story framework has been completed within six months, and an entire building has not been completed within one year,then there is no legal basis to dismiss this challenge under §280-8. Lastly, we want to highlight to the Town Board that the purpose of the comprehensive zoning under Southold Town Law§280-2 is for,among other things,"The maximum protection of residential and historic areas" (§280-2E), "The enhancement of the appearance of the Town of Southold as a whole, particularly its open and rural environment" (§280-2G), and "The protection and enhancement of the coastal environment" (§280-2K). We are requesting that you undertake a formal review of the zoning boundaries within tax lot#1000-106-13.4.We believe that as a result of that review you will conclude that the existing Town zoning map needs to be revised to reflect the pre-1989 boundary between the R-80 and M-IT zones. Sincerely, s Wo .4 osco a David W. Boscola cc: Southold Town Zoning Board of Appeals Southold Town Planning Board Page 1 of 9 ATTACHMENT A Timeline of Events Relating the Zoning of Tax Parcel 1. April 9, 1957 Original Zoning Map (Exhibit 1) a. Map in place reflects original zoning for what was known as Mattituck Inlet Marina and today is Strong's Yacht Center. 2. January 26, 1960—Public Hearing—Zoning Change#1 a. Prior owner of the surrounding property, Frederick R. Ketcham,requests a zoning change for an expansion to the south of the Business zone of the waterfront parcel located between Mattituck Creek and the sloped hillside to the west. b. Zoning change requested to be"roughly 150' from the shoreline"and"still has 7 or 8 acres to the west of that which he is willing now to leave in its present condition [Agriculture and Residential] and probably that is the better method" c. A copy of the revised zoning map is included in the public hearing minutes (Exhibit II). The map is officially updated and reflected on survey maps and site plans in the town files until 2000. These documents do not reflect the 1989 zone boundary change. 3. October 31, 1961 —property is sold to Mattituck Holding Co, of which Bill Boscola is a member 4. February 1972 Boscola Family home built by Bill Boscola a. The home is constructed on a portion of the surrounding parcel and officially carved out of the overall plot. This was done within the R-80 zone. The lot is currently SCTM# 1000-106-13.7 (our home today) 5. November 16, 1984—Last Approved Site Plan(Exhibit Ill) a. The last boat storage shed is constructed at the marina within the commercial/light industrial zone portion of lot#1000-106-13.4. b. Correct zoning boundary is reflected on the last approved site plan for the property—which as is still the site plan in effect as April 18, 2022. 6. January 1989—Local Law No.1 is passed.Boundary between R-80 and M-II zones relocated 380' west on Town zoning reap (Exhibit IV) 7. August 6, 1989—Subdivisions a. Mattituck Holding Co. and the Town of Southold were still in discussions regarding various proposed subdivisions of the subject parcel. b. These discussions began in 1986 and continued through late 1993. 8. November 6, 1989—Town acknowledges R-80 zoning still intact(Exhibit V) a. Planning Board Letter noting a lot within the subject parcel,part of the subdivisions, is located in the R-80 zone nearly one year after Local Law No. 1 9. February 26, 1990—Subdivision Map (Exhibit VJ) a. The standard subdivision map still reflects the zoning referenced prior to 1989,received by the Planning Department (cont'd next page) Page 2 of 9 ATTACHMENT A(CONT'D) 10. July 1995 —We purchase our home—approximately two years after the subdivision stalled a. Given the above facts,there was no reason to believe that there were any changes to the zoning of the lot surrounding our lot. b. We used the latest survey map from Young&Young dated August 17, 1989 (received by Planning Board Feb 26, 1990), as our reference at the time of purchase (Exhibit 1) c. It is reasonable to assume that we would have used Young&Young to survey the property and it is further reasonable to expect that we would have received a nearly exact map as the one presented here. d. As such, our reasonable reliance on the survey map located in the Town files with the R- 80/M-11 line drawn as reflected in Exhibit VI, should be given significant weight in this fact pattern — particularly since it was more than one year after Local Law No. 1 was adopted. Remainder of page intentionally left blank—Exhibits follow Page 3 of 9 EXHIBIT I Exccrpt from Zoning Map of April 1957 b � - - 8 -moi r l� Subiect Parcel i Page 4 of 9 EXHIBIT 11 Zoning Mupreflecting the documented approved change in 1960 (boundary line enhanced inblue) MAP OF L-A%rqj mi 91 41 Page 5uf9 EXHIBIT III Last Approved Site Plan for the subject property 1984—still the current approved in the Town files ��,✓r� ai[4.e � Ja' IIP f� 1 1 � -- _ - .- ZONING BOI.VryARYLINE _ '-_ •`",` --- ,'fir r� r Ir ".-----•---- .AP OVFD BY PLANNINC,101-OD VA TOWN O� • -.-."___ ". f�} { - ;`. !e PAT: - J An ' sr.a Fw ns ar a If, moi' n' ia Aye 9 MATTITtJCK HMDIMG CG ' AT MATTMUCK ox1Y,. N.r Y TOWN OF SOUTHOLD KW2: SVFFOLK MUNTV',NEW TORN ra0. a-b.1 1 ......, .. p 7f c•V•••••••a°e•'P•x'�6�w::w•eir X00 oSTIUKOlp A>J[MlE YOUNG a YOUNG s==AMW TORK �r 0.M O.KssiDxK�lxa.lCK nxD.✓<hD p,r"e od.x.s iel..E NO as.M , - ni.RDW. 0.LAO A RVCMK i ucens.+b•�Rr a Page 6 of 9 �P t� _ � - ��• "_- -�t� � �__t_ - t' , ill r r v EXHIBIT IV Except of Post-1989 Zoning Map after Local Law No.I is passed f ■ • • • i • • j r 't r l i l I ZONING 111 Is Portion of: Sheet A • A�JAMJAM IL IM TOWN QF SOUVH(MD SUFFOLK . Page 7 • . r PL �N%[ ;G BOARD OFFICE TUti'• 01 5()L,MOLD :,Yr I .r". t, r1: . z 1 Sot Ozi n,-, r _ III_---I`1t1 Cl. C _-r::F10Ec, L h r... `.IT, a- arc -a L: anc0 it .}r..:.. , r;. ( ll':_. ) 1 ucI__. :7 }i.. :1:?-C= _ .. :�.. i..:t'._ t1)Q P I.i11-ITll.':a it_ � - _ :d ,r =, .:��• ____ ,_ttFva �t� .,, 'i � _ e.nt_i - e' �- ic�::l f__gym ,-_.__t� t C t l I :C' l C 1 :�. :i w _ �t ;�r:r,.i:��-- . ..rl firms^: .`. l i Tlx: ;t1 U r`i ,ti'ill - VA 1 'IIL irM___I y EXHIBIT VI Survey/Subdivision Map excerpt from Young&Young—4'h revision, last dated Aug 17, 1989 and marked as received by the Planning Board on Feb 26, 1990. Updated"Marine II"zoning moniker noted � v lit SITE :AJA JP + x'., •gyp ff fit r F"�II�----- 1. TOTAL/dN--'a,•13 S}ACM 3. ZQNPGG WW 01&7q%TS' ' g C FE SIOCN74AI 41X*DD0TYW as w 4 I •u i MMNE' ' LEhGTNBrftmaII5i$0'•• 1 P � rY A�Rmmdai-F Lim a 6 iy STANDARD/ YIELD SUBDIVISION SKETCH FLANAT MATTITUCK { "AOL% MA7rITUCK HOLDING CQ wur F IMF TOWN OF SOUTHOLD JJ SUFFOLK CO,MY 4-0 w.R-aaw s�..N. • itµrt i'aL.i Page 9 of 9 SUPER LAW GROUP, LLC WRITER'S DIRECT DIAL: 212-242-2273 July 10, 2023 EMAIL: reed@superlawgroup.com Via email Mr. James H. Rich III, Vice-Chairman Southold Town Planning Board 54375 Main Rd P.O. Box 1179 Southold, NY 11971 Re: Comments on Strong's Yacht Center DEIS and Site Plan Application Dear Mr. Rich and Members of the Planning Board: On behalf of Save Mattituck Inlet, we respectfully request that the Planning Board refer two matters to the Zoning Board of Appeals (ZBA). First, pursuant to Town Code § 280- 146(D)(2), the Planning Board should ask the ZBA to make a determination of the exact location of a district boundary shown on the Zoning Map. Second, pursuant to Town Code § 280- 146(D)(1), the Planning Board should ask the ZBA to make a determination of the meaning of Town Code § 280-111(H) and its application to Strong's Yacht Center's site plan application and proposed project. Town Code § 280-146(D)(1)(2) states that the ZBA is authorized, "on request of any Town . . . board . . . to decide any of the following: (1) Determine the meaning of any provision in this chapter or of any condition or requirement specified or made under the provisions of this chapter. (2) Determine the exact location of any district boundary shown on the Zoning Map." Regarding Town Code § 280-146(D)(2), the MII zoning was put into place in 1989 with the adoption of Local Law No. 1-1989 and, since then little change has been made. See Comprehensive Plan, Ch. 3, p. S. When the Town redrew its zoning map in 1989, the boundary between the R80 district and MII district (previously, a business district) of SCTM #1000-106- 13.4, located along the western side of Mattituck Creek, inexplicably shifted westward approximately 380 feet from its pre-1989 location. There is no record of why this westward shift of the boundary, as drawn on the zoning map, occurred. It appears to have been an inadvertent error in the creation of the 1989 map. As seen in the attached April 2022 letter from the Boscola family and its attachments, the Planning Board, nearly one year after the passage of Local Law No. 1, acknowledged that the R80 district on the parcel still included the land that had been zoned R80 prior to 1989. The shift of the boundary westward, uphill, makes that portion of the district not appropriately located and the intended uses of the MII district not viable absent massive changes to the physical landscape (i.e., to bring the grade closer to sea level). We believe that the ZBA should make a determination that the exact location of the R80 boundary is, in fact, in the same location as it was pre-1989 and was not moved westward in the 1989 zoning action. 222 BROAD NvAY, 22ND FLOOR • NENvYORK, NENvYORK 10038 TEL: 212-242-2355 • www.superlawgroup.com Southold Town Planning Board July 10, 2023 Page 2 Regarding the requested determination under Town Code § 280-146(D)(1), Town Code § 280-111(H) states: "Storage of petroleum products. Notwithstanding any other provisions of this chapter, storage facilities with a total combined capacity of more than 20,000 gallons, including all tanks, pipelines, buildings, structures and accessory equipment designed, used or intended to be used for the storage of gasoline, fuel oil, kerosene, asphalt or other petroleum products, shall not be located within 1,000 feet of tidal waters or tidal wetlands." Strong's Yacht Center has already made clear that the 88 yachts to be stored in the two proposed buildings would need to be stored with full fuel tanks. Therefore, there would be more than 20,000 gallons of petroleum products stored within 1,000 feet of tidal wetlands. The ZBA can determine if the proposed boat storage with full fuel tanks qualifies as "storage of petroleum products" and if Town Code § 280- 111(H) applies to the project. Should you have any questions, please do not hesitate to contact us. Sincerely, Reed Super, Esq. Ethan Baer, legal intern cc (via email): Planning Department Town Attorney Zoning Board of Appeals Suffolk County Planning Commission NYSDEC Save Mattituck Inlet Save the Sound North Fork Audubon Group for the East End Turtle Rescue of the Hamptons Joel Klein Attachment mo�466&5M4 5106 West Mill Road•P.O. Box 587 • Mattituck,NY 11952 April 20, 2022 The Honorable Scott Russell, Supervisor Honorable Members of the Town Board Town of Southold 53095 Main Road Southold,NY 11971 Re: Zoning Issues Surrounding SCTM#1000-106-13.7 or 5106 West Mill Road, Mattituck Dear Supervisor Russell and Members of the Town Board, We are reaching out to you to request clarification of a substantially impactful, and we believe erroneous, zoning change that occurred with the adoption of Local Law No.l-1989. When the town redrew its zoning map in 1989, the boundary between the R-80 and M-TT zones of SCTM#1000-106-13.4, located along the western side of Mattituck Creek, was shifted westward approximately 380 feet from its pre-1989 location. To date, we have been unable to confirm why there was a westward shift of the boundary. That shift resulted in a residential lot (SCTM #1000-106-13.7)—which is our home —becoming surrounded by the M-11 zone. Pursuant to New York Town Law §264-1, "Every zoning ordinance and every amendment to a zoning ordinance(excluding any map incorporated therein)adopted pursuant to the provisions of this chapter shall be entered in the minutes of the town board; such minutes shall describe and refer to any map adopted in connection with such zoning ordinance or amendment." After submitting a FOIL request to the Southold Town Clerk for copies of these documents, we were advised that they could not be located/provided. Attached to this letter is documentation, including a timeline, in support of our position that the current Town zoning map is incorrect and should be corrected to reflect what we believe to be the correct boundary between the R-80 and M-11 zones on tax lot#1000-106-13.4. We are aware of the proposed industrial project on the lot that surrounds our home, and want to remind the Town Board that pursuant to Southold Town Law §280-8(D), since no construction has been started, no ground story framework has been completed within six months, and an entire building has not been completed within one year,then there is no legal basis to dismiss this challenge under §280-8. Lastly, we want to highlight to the Town Board that the purpose of the comprehensive zoning under Southold Town Law§280-2 is for,among other things,"The maximum protection of residential and historic areas" (§280-2E), "The enhancement of the appearance of the Town of Southold as a whole, particularly its open and rural environment" (§280-2G), and "The protection and enhancement of the coastal environment" (§280-2K). We are requesting that you undertake a formal review of the zoning boundaries within tax lot#1000-106-13.4.We believe that as a result of that review you will conclude that the existing Town zoning map needs to be revised to reflect the pre-1989 boundary between the R-80 and M-IT zones. Sincerely, AN_� Donna M. Boscola David W. Boscola cc: Southold Town Zoning Board of Appeals Southold Town Planning Board Page 1 of 9 ATTACHMENT A Timeline of Events Relating the Zoning of Tax Parcel 1. April 9, 1957 Original Zoning Map (Exhibit 1) a. Map in place reflects original zoning for what was known as Mattituck Inlet Marina and today is Strong's Yacht Center. 2. January 26, 1960—Public Hearing—Zoning Change#1 a. Prior owner of the surrounding property, Frederick R. Ketcham,requests a zoning change for an expansion to the south of the Business zone of the waterfront parcel located between Mattituck Creek and the sloped hillside to the west. b. Zoning change requested to be"roughly 150' from the shoreline"and"still has 7 or 8 acres to the west of that which he is willing now to leave in its present condition [Agriculture and Residential] and probably that is the better method" c. A copy of the revised zoning map is included in the public hearing minutes (Exhibit II). The map is officially updated and reflected on survey maps and site plans in the town files until 2000. These documents do not reflect the 1989 zone boundary change. 3. October 31, 1961 —property is sold to Mattituck Holding Co, of which Bill Boscola is a member 4. February 1972 Boscola Family home built by Bill Boscola a. The home is constructed on a portion of the surrounding parcel and officially carved out of the overall plot. This was done within the R-80 zone. The lot is currently SCTM# 1000-106-13.7 (our home today) 5. November 16, 1984—Last Approved Site Plan(Exhibit Ill) a. The last boat storage shed is constructed at the marina within the commercial/light industrial zone portion of lot#1000-106-13.4. b. Correct zoning boundary is reflected on the last approved site plan for the property—which as is still the site plan in effect as April 18, 2022. 6. January 1989—Local Law Not is passed Boundary between R-80 and M-II zones relocated 380' west on Town zoning reap (Exhibit IV) 7. August 6, 1989—Subdivisions a. Mattituck Holding Co. and the Town of Southold were still in discussions regarding various proposed subdivisions of the subject parcel. b. These discussions began in 1986 and continued through late 1993. 8. November 6, 1989—Town acknowledges R-80 zoning still intact(Exhibit V) a. Planning Board Letter noting a lot within the subject parcel,part of the subdivisions, is located in the R-80 zone nearly one year after Local Law No. 1 9. February 26, 1990—Subdivision Map (Exhibit VJ) a. The standard subdivision map still reflects the zoning referenced prior to 1989,received by the Planning Department (cont'd next page) Page 2 of 9 ATTACHMENT A(CONT'D) 10. July 1995 —We purchase our home—approximately two years after the subdivision stalled a. Given the above facts,there was no reason to believe that there were any changes to the zoning of the lot surrounding our lot. b. We used the latest survey map from Young&Young dated August 17, 1989 (received by Planning Board Feb 26, 1990), as our reference at the time of purchase(Exhibit 1) c. It is reasonable to assume that we would have used Young&Young to survey the property and it is further reasonable to expect that we would have received a nearly exact map as the one presented here. d. As such, our reasonable reliance on the survey map located in the Town files with the R- 80/M-11 line drawn as reflected in Exhibit VI, should be given significant weight in this fact pattern — particularly since it was more than one year after Local Law No. 1 was adopted. Remainder of page intentionally left blank—Exhibits follow Page 3 of 9 EXHIBIT I Excerpt from Zoning Map of April 1957 s�rw 1' SOewO v/L� Avg_ Q ' r�• I Subiect Parcel _ J .41 4 a Existing, Business Zoninr, tn �jj ROAD � w tr � o Page 4 of 9 EXHIBIT 11 Zoning Mupreflecting the doounncn(cdapproved change in 1960 (boundary line enhanced inblue) m MAP OF L-A%rqj mi 91 41 Page 5uf9 EXHIBIT III Last Approved Site Plan for the subject property 1984—still the current approved in the Town files ��,✓r� ai[4.e � Ja' IIP f� 1 1 � -- _ - .- ZONING BOI.VryARYLINE _ '-_ •`",` --- ,'fir r� r Ir ".-----•---- .AP OVFD BY PLANNINC,101-OD VA TOWN O� • -.-."___ ". f�} { - ;`. !e PAT: - J An ' sr.a Fw ns ar a moi' n' ia Aye 9 MATTITtJCK HMDIMG CG ' AT MATTMUCK ox1Y,. N.r Y TOWN OF SOUTHOLD KW2: SVFFOLK MUNTV',NEW TORN ra0. a-b.1 1 ......, .. p 7f c•V•••••••a°e•'P•x'�6�w::w•eir X00 oSTIUKOlp A>J[MlE YOUNG a YOUNG s==AMW TORK �r 0.M O.KssiDxK�lxa.lCK nxD.✓<hD p,r"e od.x.s iel..E NO as.M , - ni.RDW. 0.LAO A RVCMK i ucens.+b•�Rr a Page 6 of 9 EXHIBIT IV Except of Post-1989 Zoning Map after Local Law No.l is passed r v Q w u ti t � Q R ca An Boundai, t r !VT ot v Portion of: Sheet A ZONING MAP I&IWO �oMK �� a� SUFFOLK COUNTY NEW YORK MMTER FLAN UPDATE �+no wF'rMk� yT��aprouRr•�vcd�t+l�maaWrt7- omnw M.n raw Page 7 of 9 EXHIBIT V Planning Board acknowledges zoning of the parcel as R-80-Nov 1989 (subsequent to Local Law No. 1) Town Hall. 53095 Main Road �, ?`1► .� P.O. Box 1 179 `-'► ' 0� Southold. New York 1 1971 TELEPHONE (516)765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD November 6, 1989 Henry Raynor P.O. Drawer A Jamesport, New York 11947 RE: Proposed Set Off for Katherine Ebert SCTM# 1000-106-6-13.3 Dear Mr. Raynor, The Planning Board has reviewed the submission for the above mentioned proposal. The lot to be set off is in the R80 zone, which requires a minimum lot size of 80,000 square feet. As the proposed lot is only 41,182 square feet in area, the Planning Board can not proceed until such time that an area variance is granted by the Zoning Board of Appeals. Please note also that if an area variance is granted by the Zoning Board of Appeals, the Planning Board will require that revised maps be submitted showing the entire parcel from which the 41,182 square foot parcel is to be set off. Upon submission of a positive determination from the Zoning Board of Appeals and revised maps, the Planning Board will proceed with their review. truly yours :etZ�XOrlowslEi , Jr. , Chairman Page 8 of 9 EXHIBIT VI Survey/Subdivision Map excerpt from Young &Young—4'h revision, last dated Aug 17, 1989 and marked as received by the Planning Board on Feb 26, 1990. Updated"Marine II"zoning moniker noted � v lit SITE :AJA JP + x'., •gyp ff fit r F"�II�----- 1. TOTAL/dN--'a,•13 S}ACM 3. ZQNPGG WW 01&7q%TS' ' g C FE SIOCN74AI 41X*DD0TYW LEhGTNBrftma 5i$0'•• 1 P � rY A�Rmmdai-F Lim a 6 iy STANDARD/ YIELD SUBDIVISION SKETCH FLANAT MATTITUCK { "AOL% MA7rITUCK HOLDING CQ wur F IMF TOWN OF SOUTHOLD JJ SUFFOLK CO,MY 4-0 w.R-aaw s�..N. • itµrt i'aL.i Page 9 of 9