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HomeMy WebLinkAboutLL 2007 #23 ."" .. STATE OF NEW YORK DEPARTMENT OF STATE 41 STATE STREET ALBANY, NY 12231-0001 l ., -r---,-r \ , .. ELIOT SPITZER GOVERNOR LORRAINE A. CORTES-vAzQUEZ \ SECRETARY OF STATE " , \ January 23, 2008 RECEIVED Lynda M Bohn Deputy Town Clerk Town Hall 53095 Main Road PO Box 1179 Southold NY 11971 JAN 2 8 2008 Southold Town Clerk RE: Town of Southold, Local Law No. 22 thru 25, 2007, filed on December 28,2007 Dear Sir/Madam: The above referenced material was received and filed by this office as indicated, Additional local law filing forms can be obtained from our website, www.dos.state.nv.us/corp/misc. htmL Sincerely, Linda Lasch Principal Clerk State Records and Law Bureau (518) 474-2755 WWW.DOS.STATE.NY.US . E-MAIL: INFO@DOS.STATE.NY.US -,-"7 - FecEx. US Airbi/l Express "dE< 8619 '''''''0 N,rnb<< 6235 7611 From _pffl,.ndpro"~"~' l':l. 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SOUTHOLD TOWN BOARD PUBLIC HEARING December 4, 2007 7:35 PM COUNCILMAN WICKHAM: NOTICE IS HEREBY GIVEN, there has been presented to the Town Board of the Town of South old, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" AND NOTICE IS HEREBY FURTHER GIVEN that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th dav of December 2007 at 7:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of Southold is hereby amended as follows: 9275-2. Definitions; word usage. ACCESS PATH -- an area. cleared bv hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of anv manmade structure. to orovide a walkway to a body of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. Chapter 275 Revisions. December 4, 2007 For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adj acent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eatvvalks." FUNCTIONAL - Anv structure that, in its current state, primarilv retains its purpose and use as determined bv the Board of Trustees. NONDISTURBANCE BUFFER - An- A vegetated area, typically 50 feet wide !! minimum of 30 feet wide as designated by the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities eafl may take place, except that manmade debris may be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any eatwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. . 2 9275-4. Exceptions. A. The provisions of this chapter shall not affeet or prollibit Bor require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside any designated buffer area are not included in this exception. ilmdward oftll0 wetlaRd bOllndar)'. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted by this chapter, existing and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows, roof shingles, doors, dormers and siding on existing structures only. (11) Notwithstanding the above listed exceptions, activity within a designated non-disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: (j) The reconstruction of a permitted bulkhead as per Q275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. not to eJ[eeed 20 feet wide as defined Chapter 275 Revisions. December 4, 2007 . 3 in S275 2. m Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing, established yard area when more appropriate upland placement is not possible. Installation, burial or removal of a propane tank less than 25 feet from wetlands is generally prohibited. (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activitv by or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. 9275-7. Fees. F. Dredging Fee. Everv application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic vard of dredge spoil to be removed. 9275-10. Contents of permit. 1. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." 9275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Anv fence, barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence, barricade or impediment is located sent by certified or registered mail. Such fence, barricade or impediment shall be removed by the owner within 30 davs of the date of the notice. Upon failure to complv with such notice, the Building Inspector, Code Enforcement Officer or Bay Constable mav remove or cause the removal of the illegal structure. If anv fence, barricade or impediment is determined bv the Building Inspector, Code Enforcement Officer or Bay Constable to create a hazard to the health, safetv or welfare ofthe public, such structure mav be removed and disposed ofbv the Town without prior notice to the owner. Upon removal bv the Town, all costs and expenses incurred by the Town for the removal of such fence, barricade or impediment shall be the responsibilitv of the owner. The Town mav pursue anv and all remedies Chapter 275 Revisions. December 4, 2007 . 4 available at law to recover anv unpaid costs associated with removal, including filing a statement with the Town Assessors, identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors, in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levy against such property, shall constitute a lien and shall be collected and enforced in the same manner, by the same proceedings, at the same time and under the same penalty as is provided by law for the collection and enforcement ofreal property taxes in the Town of South old. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet offence is allowed, no larger than 12 inches by 12 inches square. (2l Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined by the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned Ml or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (I) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), creosote, penta products, Alkaline Copper Ouat (ACOt or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. Any use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls. stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent Chapter 275 Revisions. December 4, 2007 to residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with anv preservative, including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), creosote, penta products, Alkaline Copper Ouat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be determiHed at the discretion of the Trustees. . 5 (b) Dock locations and lengths. [3] [a] GiveH the IIHiqlle and seHsiti'ie natllral enviroHmental characteristics described in the T OWH of Sel!thold Local 'NaterfroHt Revitalization PIRH and the New York State DeJlartment of State Sigaificaat Habitat descriptioHG, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek, East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. [3] [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands, except that floats 20 feet in length or smaller and boats 16 feet in length or smaller mav be stored above mean high tide, on blocks at a minimum of 12" above grade, during the period beginning November I through Mav I. (c) Regulations for the placement and configuration of docking facilities. [I] Residential docks. [ a] Only one deek, catwalk mav be permitted per . Chapter 275 Revisions. December 4, 2007 (3) 9275-12 A &275-12 B A. 6 residential lot. Onlv one mooring or dock may be mooring is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island ifthe need is demonstrated; or of equal square footage as determined bv the Trustees; Dredging. (a) Creeks. [I] Onlv maintenance dredging (as defined in 9275-2) 6Rly is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation oflow-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (f) All dredging applications must demonstrate a specific location for the deposit of dredging material. Standards for Issuance of permit Stop work orders. The Bav Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bav Constable or Code Enforcement Officer shall issue a stop-work order to halt: (]) Anv work that is determined bv the Bav Constable or Code Enforcement Officer to be contrary to any applicable provision of this Chapter, or: (] ) Anv work that is being conducted in a dangerous or unsafe manner in the opinion of the Bav Constable or Code Enforcement Officer, without regard to whether such work is or is not work for which a trustee permit is required, and without regard to whether a trustee permit has or has not been issued for such work; or (2) Anv work for which a trustee permit is required which is being performed without the required trustee permit, or under a trustee permit that has become invalid, has expired, or has been suspended or revoked. Chapter 275 Reyisions . December 4, 2007 B. Stop-work orders shall: (1 ) Be in writing; (2) Be dated and signed by the Bay Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) If applicable, state the conditions which must be satisfied before work will be permitted to resume. . 7 C. The Bay Constable or Code Enforcement Officer shall cause the stop- work order, or a COpy thereof, to be served on the owner of the affected property, and if the owner is not the permit holder, on the permit holder, personally or by certified mail to the owner or permit holder and posting at the work site. The Bay Constable or Code Enforcement Officer shall be permitted, but not required, to cause the stop-work order, or a COpy thereof, to be served on any or all of the following: builder. architect. tenant. contractor, subcontractor, construction superintendent. or their agents, or any other person taking part or assisting in work affected by the stop-work order, personally or be certified mail and posting; proyided, howeyer, that failure to serve any person listed aboye shall not affect the efficacy of the stop-work order. D. Upon issuance of the stop-work order, the owner of the affected property, the permit holder and any other person performing, taking part in or assisting in the work shall immediately cease all work which is the subiect of the stop-work order. E. The issuance of a stop-work order shall not be the exclusiye remedy ayailable to address any eyent described in this section, and the authority to issue a stop-work order shall be in addition to, and not in substitution for or limitation of, the right and authority to pursue any other remedy or impose any other penalty under any other applicable local or state law. Any such remedy or penalty may be pursued at any time, whether prior to, at the time of, or after the issuance of a stop-work order. 9275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the proyisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such yiolation occurs shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be Chapter 275 Revisions. December 4, 2007 . 8 subject to a fine of not less than $500 and not more than $1,000. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to S275-l0 shall be subject to a fine of not more than $1,000. (3) Failure to heed a eease llfHI desist order stop work order. Any person conducting operations in direct contradiction to the terms of a stop-work order shall be subject to a fine of not less than $1000 and not more than~. $4000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1000 nor more than ~ $7500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to complv with a restoration plan. Anv person failing to complv with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guiltv of an offense and subiect to a fine of not less than $1.000 and not more than $4,000. fB@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees mav revoke a permit when a violation of this Chapter or Chapter III is found on the same propertv. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are Jlnamed as defendants in an outstanding or unresolved wetland '/iolatioH.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part ofthis Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE Chapter 275 Revisions. December 4, 2007 This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law. . 9 Most of this material already is in Chapter 275, this is an effort to strengthen, to make it move straightforward and to clarify what this calls for and more specific to apply to the wide range of activities on the shoreline and on, in that whole area. This has appeared, this public hearing has appeared, a notice for it, as a legal notice outside on the bulletin board, it has also appeared as a legal in the local newspaper. We have several memorandums, one of them is from Mark Terry, the Principal Planner and also the LWRP coordinator. 'The proposed local law has been reviewed to Chapter 268, based upon the information provided on the consistency assessment form submitted to the Department as well as records available to me, it is my determination that the proposed action is consistent with the standards and therefore is consistent with L WRP provided that the following best management practices and process recommendations are incorporated to further the policy standards written below.' And there follows several pages here about specific practices he is recommending be applied when bulkheads are being applied for and built and when docks are being applied for and built and when dredging is being conducted. And there is quite a number of pages here about that and I won't go into it any further but it is technical, best management practices on those particular issues which are included in Chapter 275. Let's see what else we have. Well, here is a letter from a certain Mrs. Bontje of North port, New York. Please forward to the Town Board as they have no direct contact e-mail that I could find. 'My wife and I object to the proposed changes in the Town's Trustees regulations. They already have too much power over private lands, do not give them more. They are choking off our retirement in Southold by reducing our buildable area step by step. We cannot put a 30 foot buffer, mandatory, on our property and still get a decent sized home. To paraphrase our recent letter to the Trustees, "As a practical matter, a reduction in coverage will provide an area too small to provide for a modem's home footprint particularly for retirement. My wife and I wish to retire on our waterfront property in Southold. A reconstructed home must have a garage, kitchen with mudroom, storage, utility room, one bedroom, living room, dining room, kitchen all on the first floor. All steps, doorways and like requirements must be accessible to wheelchair bound individuals on the first floor. We have an 11,000 square foot lot from 1954. There is no way such facilities can fit within a 3,000 square foot reduced footprint on the lot. If you go to a mandatory 30 foot buffer, you have taken our retirement home from us and our benefit to the Town. There is no need for this change. Long Island is sandy. Dry wells and other infiltration features can readily control storm run-off through impervious surfaces on a lot with development coverage. Further, roof drainage is clean over time. What exactly are you attempting to mitigate or prevent? The technology of modem infiltration devices more than provide such a mitigation. To close, do not take our collective property and specific our retirement from us or me and do not do so for reasons that can be mitigated. A reduction in allowed coverage due to a mandatory 30 foot buffer will be taking our or my property without just compensation. I implore you not to do so. The waterfront residential community is an economic engine in the Town. We have disposable income, you drive us away by over regulation the Town's economy will also suffer." Here is a letter from the Nature Conservancy, dated November 30, 2007. Wow, I don't, this is like five pages Chapter 275 Revisions. December 4, 2007 long, it is written by a Marian Lindberg, Conservation, Finance and Policy. I will just try to summarize it briefly. "Honorable Members of the Town Board, In connection with your review of Chapter 275 and in the interest of avoiding piecemeal consideration of changes, please consider the attached additional amendments drafted by our staff along with an excellent summary of the research supporting the importance of wetland non- disturbance buffers prepared by the office of Long Island Sound programs of the State of Connecticut. As stated in our letter of October 22, we applaud the Town for taking the initiative to improve the protection of wetlands and understand that the Trustees have already suggested changes to the existing law. We fully support the Trustees proposal to increase penalties for non-compliance. We also support their effort to promote native vegetation by exempting the use of non-invasive native species from regulation. However, the Town Board should take this opportunity also to consider the L WRP coordinating council recommendations that were offered in August. We have taken the liberty of trying to convert a number of those recommendations into code language, along with some of our own suggestions based on research data and effective wetland management experiences. We fully recognize the developing code language is and should be a public process with input from all concerned. Our aim is to help the Town commence that dialogue by undertaking the tedious task of turning good ideas into specific regulatory do's and don'ts. As the L WRP reports, points out, Southold is moving into a year-round residential community from an agricultural and second home community. This means that more pressure to expand existing dwellings and more impact on natural resources are inevitable. To safeguard water quality, fisheries, storm protection, all other eco-system services offered by wetlands; we believe the Town needs those additional tools to widen the non-disturbance buffers and direct development away from wetlands. The attached amendments are designed to strengthen these Trustees efforts to protect their in the following ways: Increase Trustees jurisdiction to 200 feet and there follows several sentences about that; Increase the minimum setbacks, with greater setbacks in critical environmental areas and subject all structures, including decks, to the setback requirements and distinguish between pervious and impervious services for setback purposes. 3. Revise the administered permit system to apply where the existing and proposed development meets the minimum setbacks not just in the limited circumstances described in current Chapter 275. 4. Require applicants proposing to deviate from setback requirements to demonstrate no practical alternative and as a condition ofreceiving release, require mitigation in the manner set forth in the law. For example, by widening an existing non-disturbance buffer, creating one where none exists, relocating structures etc. 5. Require permits issued by Trustees in granting deviation of setbacks as specified the type of mitigation proposed. 6. Require all paperwork related to applications for Trustee permits to be completed 30 days before the public hearing to provide for meaningful public review and comment. 7. Require administrative permits for certain types of operations currently exempted, such as access to and from sites to conduct environmental testing or cutting of phragmites. 8. Provide for flagging of wetlands by the Town as done in East Hampton, Southampton and Brookhaven. 9. Separate the Town's regulation of coastal erosion structures and docks from its regulation of development on land. Many town's have a separate dock and shore hardening code. We believe Southold should follow that model. The aim of Chapter 275 should be to achieve the largest practical buffers around wetland. That is a different objective from . 10 Chapter 275 Revisions. December 4, 2007 determining when the shoreline itself can be modified through construction of a dock, bulkhead or revetment. As stated in our previous letter, we believe amendments along the lines of those proposed above will bring more precision and uniformity to Chapter 275. One issue not dealt with in our amendments nor in existing 275, is the application of setbacks and other wetland provisions to commercial properties. As currently written, Chapter 275 applies only to residential properties. But commercial properties should not be exempt from the wetlands code; as it considers implementation of LWRP, the Town Board should determine how best to ensure that commercial properties are designed etc. To reiterate, we offer these proposals in the spirit of dialogue etc. etc." That is the Nature Conservancy. I have seen other things here, this is something from the Chair of the Planning Board, Proposed local law on Chapter 275. "As requested, the Planning Board reviewed the proposed amendments to Chapter 275, we agree that the changes accomplish the stated purposes of strengthening enforcement, simplifying the permit process and verification. The Planning Board supports the proposed local law in relation to Amendments to Chapter 275." This is from Paul Stoutenburgh, a resident of Cutchogue, dated December 2,2007. "Dear Supervisor Russell and Town Board, Let me relay a bit of history so the pending legislation before you can be better understood. In the early days of the Trustees, they were unaware of the value of the wetlands. There was a time when the development of our bays and creeks took priority over conservation or preservation. It was a time of give away of our most valuable resources. The word environment was not part of the standard vocabulary. Gradually, through time, the importance and concern for our wetlands grew and the public along with the NFEC tried in vain to stop the filling of our wetlands with dredged soil. One of the chief reasons that nothing was done to stop this policy was there no rules or regs governing what could or could not be done to our wetlands. Realizing the need for a legal document of some sort, the NFEC requested the Town correct the situation by drawing up a wetlands ordinance. Once again, must reiterate, this was a period of contempt for anything that included the word 'environment or preservation' after much haggling and a number of public hearings, a weak wetlands ordinance was drawn up and passed by the Town Board. Today we have a much more enlightened Board and Board of Trustees. Most realize the importance of these most valuable wetlands. Both Boards realize most of the legislation in Southold Town is built on is in continual change. When situations change, new information becomes available, code should incorporate or delete accordingly and this is exactly what the revisions of Chapter 275 do and why I am asking you to vote yes. Times change, codes need to be changed to keep up with the times. In the future, there will need to be more done to the wetlands code but this resolution should be passed now to correct positions etc. Thank you for taking the time." Let's see, this is from John Kramer of Southold, dated, received on the 3rd. "Town Board has rescheduled this hearing on the proposed changes to 275 and that is a good thing. The public needs the opportunity to ask questions about these changes and to voice their concerns. The changes appear to be very onerous and will greatly impact the value, use and cost to keep waterfront homes. The problem is that most of those affected by the changes are not in Town. I hope the discussion of the important changes will be postponed until such time as the owners have time to consider the impact and are able to respond. My problems with the changes are as follows: I. I agree with the need for flexibility in deciding Trustee matters and black letter law can only lead to onerous and expensive requirements . II Chapter 275 Revisions. December 4, 2007 for us to fulfill. But certainly we should be able to better define much of what is in these changes to provide the homeowner with a clearer understanding of what the requirements are. Example: Functional. The way I read it, I cannot determine if my structure is functional. And functional seems to tie in to the concept of grandfathering and the wording 'permitted by this Chapter', leading me to believe that if my 1949 house is heavily damaged therefore not functional after the loss, and not permitted by this chapter because this chapter is 2004, I no longer have the right to rebuild. That sounds like taking without compensation. 2. The changes concerning CCA and treated lumber take out specific tidal flow rates that I think should come from the NYS DEC March 2000 document titled 'Assessment of the risk to Aquatic Life' in that document the best management practice for the use of treated wood are outlined. Why don't we utilize this DEC document to specify the construction standards? 3. I would also ask about the fines, prison terms and punishments. I agree you need teeth in the law to protect us from an owner out to do harm to the environment but I really believe the vast majority of your time is spent with homeowners like the ones that I know who are well-intentioned but may be uninformed. It seems that to not have a warning notice as a first step to the severe punishments, that is too harsh. Many are confused, as I am, by the regulations and when they apply. Give me a warning that says you can't do that without a permit. 4. lastly, I believe the waterfront folks deserve and expect laws that derive from a consensus that is fair and balanced. Much of this is not. For instance, the burden I see being placed on the homeowner. We know the water quality of our bays today is healthier today than it was 10 years ago. Everyone is on board and things are getting better with more awareness. But the government, with this law, puts the homeowner in the position of guilty until proven innocent. That is contrary to all other aspects of law, people who have property cannot have it taken away unless the government proves its existence is unsafe, harmful or antisocial in some way. In the Trustees jurisdiction, it seems I am in the position that I must somehow prove the negative that my house, dock etc does not do something harmful, which if not impossible is very costly. Rather, the government should be able to cite the science that proves the positive. For example, that my house in its location before the fire was a hazard to public safety, poisoning the bay etc., and therefore should not be permitted. Governments failure to be able to prove that should allow my house to stand. How can the burden of proof be shifted to the homeowner in a system that we could call fair, equitable, just and reasonable and balanced? Thank you for your consideration, John Kramer." This is from the NFEC, dated November 27. 'Subject, comments. Dear Town Board members, The issue before us is the adequacy of Chapter 275. it is inadequate and must be comprehensively fixed. The Board of Trustees has proposed some changes "to protect the natural protective areas existing within the Town. These amendments are intended to support the protection of environmental features within the Trustees jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protective areas" That is what the legislative purpose states. The NFEC supports these amendments. They are beneficial but they only address a fraction of the problem. We urge you to make a more comprehensive change than just the changes in this draft. There is more you need to recognize and more you need to do. Chapter 275 has some astounding weaknesses that has been pointed out by the NFEC. We have been joined by the Nature Conservancy and by the Town's own L WRP coordinating council. The Town Board needs to fix these . 12 Chapter 275 Revisions. December 4, 2007 weaknesses. The Trustees operate under rules established by the Town Board. Yes, the Trustees hark back to the ideas established by the Andros Patent, but the Trustees, as owners of common land in trust were actually established by the New York State Legislature in 1893 to manage and dispose of those lands. Only Chapter 275 passes to the Board of Town Trustees the Town Board responsibility to regulate private wetlands and shoreline and shoreline, and it does not do a good job of making that responsibility clear. As a first step, the Town Board needs to fix the code and establish the operational authority and responsibility of Town Trustees in the context of existing state law. Once that is done, the Town Board needs to fix the operating parts of the code and empower the Trustees with effective rules. And there follows five or six specific proposals for doing so. 1. Extend the jurisdiction to 150 feet upland of the wetlands. 2. Increase the stated setback distances. 3. Establish a vertical setback distance to ground water under cesspools in the AE flood zone. 4. Authorize the Trustees to adjust the rules by only up to 50% of the requirement stated in the code and provide criteria for such variance and make the balance black letter law relieved only by impossibility. 5. Establish a local appeals board. In all, our report of one year ago details 12 weaknesses and their corrections. The Nature Conservancy calls for action, the Local Waterfront Revitalization Plan calls for action, we call for action. We urge you to promptly address the flaws we continue to call to your attention and to make an efficient comprehensive change. NFEC wants the Southold Trustees to be properly enabled. Sincerely, Ray Huntington for the Land Use Committee of the NFEC." I did read this one. That is the Planning Board recommendation and I think that is enough and I think the public should have its opportunity to be heard. . 13 COUNCILMAN KRUPSKI: Scott, just before we start, I just wanted to kind of put this into perspective a little bit. It did start with the Andros Patent. This actually isn't the original, I won't read it either, don't worry. The New York State legislature, in the 1790's confirmed the colonial patent, which gives Southold Town so much of its authority and benefit. The laws of 1893 that was mentioned in one of the letters set aside a separate Board of Trustees, a separate elected Board from the Town Board and it empowered them to manage, lease or conveyor otherwise dispose of all or any part of such common lands, waters, lands under water or rights of other interest therein subject to the lands underwater, to the public right of navigation, to the riparian rights of adjoining upland owners as the Town of Southold acquired and now holds by virtue of any colonial patent or charter. For this purpose, said Board may execute all such conveyances, leases, permits, agreements or other writings necessary or proper in carrying into effect the provisions of this act. In, and as referenced in Paul Stoutenburgh's letter, in 1971 the Town adopted its own wetland code, chapter 97 and when I was a Trustee, the standards for issuing a permit were pretty general. You could only issue a permit if the Board determined that such operations would not substantially adversely affect the wetlands of the Town. And there are a few others but you can see how general that statement is. What does that mean 'not substantially impact the wetlands'? Over the course of the last 20 years, the Board of Trustees has tried to define what is important in the wetlands and what is important for protecting the wetlands of the Town and we set about a lot of different policies concerning buffers, non turf buffers, fences, excavation, drainage; there was just a number of different things. These policies in 2004 were put into code of the Chapter 275 Revisions. December 4, 2007 Southold Town Board and because they were basically tried and true policies, we got a lot of input from the public when we made those changes and when we put all of those policies into code. This, what we are going to talk about tonight here are amendments to chapter 275 and we would like to confine our statements to the proposed changes and not to go off on other parts of the code or any other code because it is going to way too late for that. So if we could talk about those changes and this is part of the process of changing the Town Code and moving the Town forward on what is important and the public input. So we welcome the input but please confine it to the changes that are proposed. . 14 SUPERVISOR RUSSELL: And I just want to remind everybody that we have a lot of people that I am sure want to speak, just please remember to state your name and the hamlet you are from for the Town Clerk's records. Who would like to go first? JAMES KING, TOWN TRUSTEE: Good evening, I am Jim King, Town Trustee. The other Board members are here behind me if you have any questions. We feel that these are all positive changes that we are making to the code and this is a continuing process. This is the second set of revisions now that we are looking at and it is going to be a continuing process of updating and trying to make this code useable and much improved. I am going to keep it short because I know there are a lot of people that want to talk. ROB HERMAN: Good evening. For the record, my name is Rob Herman, I am employed by EN Consultants, Incorporated in Southampton. I have been attending Trustee meeting for about 14 years once a month, so that is over 150 meetings, so I have lived with this code for a long time. I actually had some pretty boring technical suggestions to make as Al was asking for but it struck me from looking at the number of people in this room and listening to some of those letters, that this is a pretty interesting time for this Board and for the Trustees because I don't think that all of this outpouring of public reaction to this is because the Trustees want to adjust how they handle the code and fences. I think what the Town is dealing with now and I have watched this happen in other Town's on the east end is sort of a watershed moment in its regulatory history in terms of how it is addressing its wetlands regulations. And this is not just about 275, this is, I think really all of this is mostly about the LWRP, which this is not a hearing on. But the L WRP obviously from those comments and those five pages that Mr. Wickham mentioned, it is hard to actually have this public hearing without knowing what all of those comments are. But, so what I would like to do is just try to focus on a few things and I may say a lot of what a lot of other people are here to say so, I am going to try to be as pithy as I can and maybe actually save you some time by saving some other people from having to speak. I do want to go over just quickly some of the changes that are being proposed tonight as Councilman Krupski suggested. I also want to mention a couple of things that I have found, I mean the NFEC and the Nature Conservancy, all of these are sort of these broad comments. I mean, I think there is a big push out there that you know, Southampton has done this, East Hampton has done that and so should you. There is also a big push by the Department of State to say this is what we do in New York State and so should you but I think this is all these people are here to tell you, this should be a lot of about what Southold thinks it should do. So I want to mention a couple Chapter 275 Revisions. December 4, 2007 . 15 of things that I see as recurring problems over and over and over again in my appearance before the Trustee's and a lot of that is an interaction between how 275 relates to 280 and how it relates to 268, so it is kind of hard, AI, to just completely confine it to 275 because there are contradictions between each of those sections of code that are driving the individual homeowners crazy, it is driving me crazy, I think it is driving the Trustees crazy. So I want to speak about a couple of those and then I do want to share just one little anecdote about the interaction between the L WRP and the Trustees and it is not what you think it is going to be. I think there has been a lot missed by the politicking and the personalities of you know, does Jim King like the LWRP? And is there conflict between the staff and the Trustees? I think in all of that, a lot of people in this Town are actually missing what the L WRP is doing to the Town of Southold and if I share something that everybody already know, I apologize but I do this for a living and I was just awakened a few weeks ago in a conversation with the Department of State and I want make sure that as you contemplate these code changes, you understand really what these changes you are contemplating making really may mean in light of the LWRP, especially in light of the fact that Mark Terry has a five page list of suggestions about how you may change it. I want to go very quickly through maybe five or six points just through the proposed changes. UNIDENTIFIED: (FROM AUDIENCE) May I ask what the L WRP stands for? SUPERVISOR RUSSELL: That is the Local Waterfront Revitalization Plan. That was a plan that was offered up and adopted by this Board prior to my becoming Supervisor. I think somewhere around 2000, 1999. It was authored by our former Planner, Valerie Scopaz. It is a broad document that is largely a planning initiative townwide that puts a lot of focus on waterfront. Not just protection, it is natural resource management. It is all of those things. It is a large document. You can actually come into my office and review it any time you would like. UNIDENTIFIED: Inaudible comments from audience member. COUNCILMAN KRUPSKI: By New York State. MR. HERMAN: Definitely not by the developers. Under 275-2, the definition of a non- disturbance buffer, the prior language said typically 50 feet wide, it now says a minimum of 30 feet wide. I would actually suggest that it gives the Trustees more strength to not put any number on this. The Trustees use both non-disturbance and non-turf buffers to protect wetlands typically. Non-disturbance buffers are associated with the development of vacant land and you want to take large tracts of land that aren't presently cleared and make sure that they don't get cleared. But the Trustees also use these non-turf buffers which means you can access it, you can use it. It doesn't have to be densely planted but what if the Trustees felt the particular site needed a 10 or 15 foot non-disturbance buffer, that would be less than this 30 feet but more protective than what they would ordinarily impose, so I don't think you should really put a minimum or necessarily a maximum on that. Allow the Trustees to use that as a tool or protection. Under the 275-5, the permit procedures under administrative permit, B2N, I think there has to be more specific Chapter 275 Revisions. December 4, 2007 language. I am going to guess somebody like John Costello is going to speak about that, so I will leave that alone. Under 275-10, I would suggest that you insert the language 'a statement that the permittee is required to conspicuously post the permit and have the supporting Trustees stamped approved plans available. The Trustees now and a very smart thing are stamping approved to specific plans. Those should be the plans that are on site, that is just going to help the Town with its enforcement. Under dock locations and lengths, this is, I have got to go backwards here to figure out what section this is, 275-11, C2B, under 3 D it mentions that floats 20 feet in length or smaller or boats may be stored above mean high tide. You could have vegetated high marsh above high tide and storing floats or boats in that area is illegal under state law; so the Town needs to be careful about providing some sort of allowance here for storing a float or a boat in a vegetated high marsh area. You don't want to mislead your taxpayers into thinking they can do something that is going to get them a $10,000 violation from the state. That is really it, I mean, to me again, I worked with this code all the time and these proposed changes themselves, at least in my mind, are fairly innocuous. One of the changes I think has to be fixed is under the definitions in 'bluff. This relates to chapter 280, section 116 as will my next comment, so I am just going to give the Town Board members that section of 280. I think one of the most substantial changes the last time this wetlands code was revised was to insert the crest of bluff as a source of the Trustees jurisdiction, whereas the Trustees had jurisdiction only 100 feet from an actual wetlands. The insertion of this definition gave the Trustees jurisdiction landward up to 100 feet of a crest of bluff. AI, you can correct me if! am wrong because you were on the Board at the time but I think the genesis of that was on these bluffs on Long Island Sound, you were seeing firms like ours were able to get a variety of non-jurisdiction letters from the Trustees and the DEC for development on the bluffs on Long Island Sound and what would happen is a homeowner would come in or a spec developer would come in and completely wipe out the property and it would cause massive erosion over the top of the bluff down the face of the bluff on to the beach. That would induce bulkhead applications coming in. In other words, problems that were out of the Trustees jurisdiction were suddenly becoming in the Trustees jurisdiction. What has happened though, is if you look in 280 the language and I hope I didn't give away all my copies, the language states under 28l-l6A there is a coinciding zoning restriction that you have to keep structures 100 feet from the top of a bluff as well but it qualifies that its lots adjacent to Long Island Sound, Fishers Island Sound and Block Island Sound and there is no such qualifier in 275. So what has happened on some applications I have handled is you could have two properties next to each other on Peconic Bay for example, that don't really exist on a geologic bluff and the one property is flat and the property next to it has a little bit of a hill on it, so the Trustees jurisdiction for the one property is 100 feet from the wetlands boundary but the Trustees jurisdiction on the property with the hill is 100 feet back from the top of the hill even though it is not really a bluff. So what you need to figure out is, is it really the Town's intention and is it the Trustees desire to grab all this additional jurisdictional area because there is a rise on somebody's property and if so, I think you have to change it in a more direct way than with this definition of bluff. If that isn't really the Trustees desire, if it isn't really the Town's intention then you should provide a similar qualifier under the definitions here as exists in 280, so that people know should I fill a little slope up my property because if so, I am going to give the Trustees . 16 Chapter 275 Revisions. December 4, 2007 another 100 feet of jurisdiction. I don't think you want that situation. The other portion of 281-16 which is and I have talked to Al and Bill Edwards about this in the past and I don't know if it is my pet peeve or what but under 281-16B, you have got this 75 foot bulkhead setback that is in the zoning code and what it says if you are adjacent to a freshwater or tidal body and you have a bulkhead, your structure has to be 75 feet landward of the bulkhead and this is really an antiquated section of the zoning code that was put in place before the time that the Town had this modern wetlands code and all these specific setbacks. And so the first problem with it is if you are just a taxpayer coming in and looking to let's say, build a swimming pool and they say well, how far does my swimming pool have to be from the wetlands boundary, if you look under the wetlands code it is 50 feet. If you don't have a bulkhead on your zoning code, that is fine, as long as it meets the rear yard setback but if you have a bulkhead, it is 75 feet. So you could go through all this time and expense with the Trustees, get their permit and then you go to the Building Department and you are given a letter of denial and told that you have to go to the Zoning Board. And this happens to a lot of people. I get a lot of business this way and it is very strange. The problem with it fundamentally is that it discriminates between homeowners and discriminates in the wrong direction, I might add, depending on whether they have a bulkhead. If you have a property that is essentially, let's say Al Krupski owns a real pristine wetlands property but it is a small lot, the house is near the water and he wants to put in a pool and the best he can do is 74 feet away. Now, Scott Russell owns a property next door, now he has despoiled his property 40 years ago, it is cleared, there is lawn, there is a bulkhead, there is no vegetated marsh, it is not a real environmentally sensitive site. They live next to each other, they both have to go to the Trustees, they both get a permit for a swimming pool 74 feet from the wetlands. What is AI's next step? He goes to the Building Department, he gets a permit and he builds a pool. What is Scott's next step? He goes to the Building Department and he gets a letter of denial. He is told he has to file for a zoning variance. Now he has to go through the whole process again with the Zoning Board. And this is not really a zoning regulation. It was at the time but it is not anymore and what if the Zoning Board says no? Scott, you can't build your pool. You have now discriminated for no reason other than the fact that Scott has a bulkhead. It makes absolutely no sense, it is a discriminatory section of the code and I have discussed it even with people in the Building Department who acknowledge that it doesn't really make any sense. The other problem it causes: it essentially undermines the Trustees authority. The Zoning Board is a board that is appointed and they are all very good at what they do. I am in front of them not nearly as often as I am in front of the Trustees but they are a very good board but they are not the Town's environmental board. The Trustees are. So why are you taking that authority or allow that authority to be continued to be taken from the Trustees and hand it over to the Zoning Board and what is essentially a repetitive process for the homeowners. Even if you can't fix this in 280 for whatever reason, perhaps as Southampton does where there is contradictions sometimes in wetlands preservation between what the Planning Board does or what the environment division does through the conservation board, you could have some sort of statement where when the Trustees in their discretion and under the code and L WRP and everything else, grant the permit for a structure that is less than 75 feet from a bulkhead, they don't have to go to the Zoning Board. You shouldn't have to do the same thing twice and possibly end up with two different results under the same . 17 Chapter 275 Revisions. December 4, 2007 . 18 exact situation. Now, this is the end of my presentation and it is the segue to the undermining of the Trustees authority and Al is looking at me because he knows what is coming. With this LWRP, if this is something that is going to stay and this is something the Town wants to keep, I think you have got a problem procedurally; first of all, you are asking a couple of people in the Town staff to do too much. They do a good job at what they do but they have to do too much and they don't appear at the meetings, they don't have any real interaction with the applicants. I know some people probably fill out their L WRP applications and write three or four words on each thing. I write pretty lengthy applications and when I appear before the Trustees I feel like no one has read them and if they read them, their comments are not responsive to what I have written, they are just sort of generic statements that follow the L WRP. I don't want to get into a detailed discussion about the LWRP because that is not why you are here. I have to share this anecdote with you. I have a client in New Suffolk who has a little jetty on their beach or what is properly called a groin. It is a terminal groin, a small field of groins that is historically stabilized this one section of beach front and it was in need ofrepair as were a lot of structures before the nor'easter in April and when that nor'easter came through, it blew out all the sheathing on this structure. The people came to me, they said we have to get permits for this thing, we have to get it in a hurry. I submitted what was really called an urgent review application to the DEC. They went out pretty promptly, they looked at the site, you are making a low profile structure, changing the treated timber to vinyl, restoring the berm with sand, planting it all with sort of the right thing, the same things that the Trustees and DEC always require and DEC issued the permit. Went before the Trustees, the Trustees went out, they looked at it. L WRP coordinator looked at it. The LWRP coordinator created a report. It said under the Town's LWRP it is exempt. The Trustees issued the permit. Then I get this letter from the Department of State, who for those of you who don't know is the state agency that effectively sold the Town the LWRP program a number of years ago. The Town gets grant money for it, a lot of cooperation between the two and I know from talking to the Trustees at the time and Brownell Johnston, who is an attorney, who was counseling the Trustees at the time, that I know one of the big selling points was that the Trustees and the Town was really going to strengthen its home rule, in other words, what all of you think is right for Southold and what your elected officials and your appointed officials think is right for Southold is what is going to happen. There was this belief, too, that whatever the Town did under this LWRP, the New York State DEC a different state agency, would have to go along with it. Now, I told Al and Brownell and the others that that was a bag of goods from the start but at least if it at least be consistent with any rational persons logic that the Department of State would follow whatever the Town was going to do, right? I mean, that makes sense. So I got this letter from the Department of State on this project that describes their intent to object to, which is a euphemism 'we are going to deny it', this project. And basically the letter said that even though, how did they phrase it? That even though it was exempt under the locally adopted LWRP, it was still subject to their review and so I am thinking in my mind that it is subject to their review under the New York State Coastal Management program, right? it is one of the things I have complained about for two years. I have already got to fill out this consistency assessment form for 40 policies and give it to the state, now I have got to fill out another 20 and give it to the town. So, I kind of sent this letter back that I thought was like kind of correcting the analyst's thinking and . . 19 Chapter 275 Revisions December 4, 2007 kind of telling them really what was going on in Southold. In response to that, I got a rather agitated call from her Supervisor and he told me that he was going to educate me, so to speak, about what was what with the LWRP. Now, I have heard this from this particular gentleman before but this time he really did. I tried to explain to him on the phone, I said, you know, we got the Trustees permit, it is exempt under the Town's LWRP, you know, I did all the....he stopped me and this is a quote, he said 'you have to stop referring to it as the Town's L WRP. It is as much ours as it is theirs' and I kind of sat there for a second and I didn't understand this, most people in the room won't even know what I am talking about but on this consistency assessment form, what the Town has adopted as its L WRP effectively supplants the state's Coastal Management Program in the Town of Southold. So if I am in Southampton or Riverhead, I am filling out all these policies under the state's program but in Southold, I am not. I am doing it under your program. Here is the hitch. It doesn't matter if under 268 your LWRP law, the project is exempt. In fact, it doesn't matter if Mark Terry says it is consistent and the Trustees say it is consistent because the Department of State can still review it under the Town's adopted LWRP and deny it. Which is really incredible if you think about it because these people have paid us money, they have paid the Trustees application fee, the Trustees get a salary, Mark Terry gets a salary. They have all put their time into the process. We have posted the property, we have sent out certified mailings to the neighbors, we have had a public hearing, the Trustees have been to the site and it is all meaningless. Absolutely, 100 percent waste of all of your time and money. You know why? Because my client can't do the project, because Department of State said so under your plan. There is something really fundamentally wrong with that. And it is a shame because most of the goals of the L WRP are actually pretty good ones. I mean, you're really trying to get the Town of Southold to move into this more environmentally protective stage but you know what? In Southampton, I don't even want to mention the setbacks in this room because everyone will start gasping but they do it very effectively with their own wetlands law. There is no LWRP. You can successfully implement the same preservationist goals of the LWRP under your own laws and under your own code and I think the problem is, you all thought that your home rule was going to somehow increase under this L WRP program. COUNCILMAN KRUPSKI: Not all of it did. COUNCILMAN WICKHAM: What we thought was, that we would have consistency and when we adopted it, we assumed and believed that other agencies, not only the Department of State but the DEC and the county would more or less go along with it. If there is a problem with the Department of State, we need to get on top of that and we need to deal with them and do whatever we can to adopt the agreement that we had at the outset. Once we adopt this, they are supposed to agree to it and follow it. MR. HERMAN: Yeah. Well, the interesting thing was and again, see, I apologize if everyone knew all this but I didn't realize this. I mean, I didn't realize that this was still, in effect, an increased power that the Department of State would have over what you do because in the same conversation, the gentleman I was speaking to said it doesn't matter if it is exempt, it doesn't matter if one of the agencies deems it consistent because he, and . . 20 Chapter 275 Revisions December 4, 2007 then made a comment about how the Trustees, in his opinion, were deeming projects consistent that weren't. So I was going to start seeing a lot more of these that were deemed consistent at the Town level and not by Department of State. So the underlying point here is that as you are making these changes to 275 and I think you are hearing calls in those other letters to make much more broad based changes and you may want to do that, I mean it seems like everybody in town is sort of waking up and saying this isn't the old 97 anymore, this is a new era, there is more to protect and we need to have a comprehensive code and you do but you know, to sound like Tom Samuels of Rambo, it should be your code, not the Department of State's, not Southampton's, not East Hampton's not the Nature Conservancy's; it should be Southold's code. And you can build, you know, and brace yourself everyone, a very protectionist but fair and understandable code yourselves. But it has to be consistent between your wetlands code, the zoning code and the LWRP policies. I mean, that pool example, it is 50 foot setback under 275, it is a 75 foot setback under 280 if you have a bulkhead and it is a 100 foot setback under the L WRP. You almost have to hire me to understand that. And once you understand that, what do you do? Which part of Southold's code do you follow? So I think it is, my final remark would be, I think what the Town is doing, the direction it is going in, I mean, this is what I do for a living, I have seen it is a lot of other places and it is a historic time for this Town but you are going to have a lot of pull and back and forth between the preservationists and the developers and unfortunately I always sort of end up in the middle and when both sides hate me, I know I have done a pretty good job. But you have to really make sure that you are doing this yourselves because if all this time that you are spending can just be trumped by one staff person at the Department of State, what are you doing? Thank you. SUPERVISOR RUSSELL: Thanks. I just want to tell you that the irony here is that we had actually, there is a whole host of recommendations through the L WRP committee. We started on this about a year and a half ago, so let's pull out the ones that there will be no disagreement on which is the documents we looked at tonight. My understanding was that most of this was policy at the Trustee level anyway. Weare sort of codifying what was is already practiced on their part. I understand the public's reticence with the larger L WRP goals and those are issues we are going to have to get into as we move forward. On that specific issue, ifI am not mistaken, the LWRP really wasn't going to be an issue there because the Department of State reviewed it because it was a groin in a state regulated water body, so they were reviewing the DEC permit anyway. I called the state, Department of State, they said we are going to review that whether you have an L WRP or not. So we didn't get the local control we thought we were going to get, like I said I don't know what the discussion was, the LWRP was passed before I got here but we obviously didn't get local control from that. But I don't think we surrendered any either, I think people can't underestimate how much authority the Department of State is exerting on this, particularly with the (inaudible) so, there is a lot of... MR. HERMAN: Well, I can actually respond to that specifically in this case, Scott, the way this works is that the Department of the Army has existing federal permits called nationwide permits and the Department of State has to sign off on those every year, what they deem consistent. If the Town did not have a locally adopted L WRP, I would have . . 21 Chapter 275 Revisions December 4, 2007 already gotten the Corps nationwide permit because the Army Corps, as rightfully they should, allows a homeowner to reconstruct a pre-existing and functional shoreline erosion control structure that has been evulsively destroyed in a storm, whereas and it is something that I actually read in this Southold Voice pamphlet that I know has stirred up a lot of this, when I was talking to the guy at Department of State, I was saying almost every other groin in this field has been reconstructed, what is the difference here? He said well because this one is basically gone and I said, yeah, but it was destroyed evulsively during one storm event, the same as somebody's house might get destroyed in a fire. I said, are you going to tell me that you are basically going to use that storm to your advantage, at this homeowners expense? He said, that is absolutely correct. SUPERVISOR RUSSELL: I am not surprised. MR. HERMAN: So that is the mentality that you are dealing with and I will give them credit, they are not hiding it. SUPERVISOR RUSSELL: Thank you. Thank you very much. Mr. Huntington, I saw your hand up first and then we will go to you right after. RAY HUNTINGTON: Ray Huntington, Cutchogue. Speaking for the North Fork Environmental Council. I know we are not talking about the LWRP but let me just mention one thing and that is that you can go to the Town Clerk and for $1.10 get a compact disc with the entire thing on it. I do recommend that because it is essentially a communication document, so that, go look at it for yourself. That is all I wanted to say before I addressed my comments to the hearing matter. Our letter, the letter the NFEC was read by Mr. Wickham, thank you. And I will just briefly paraphrase it, though. We believe that the clarifying changes contained in the Local Law before us tonight are generally beneficial but the changes are insufficient to correct the weaknesses that we pointed out a year ago. A more comprehensive change is needed. Current code does not adequately specify responsibility and authority for the Trustees with respect to wetlands and shoreline. Nor does it recognize the context of existing state law with respect to powers and appeals. This law does not address this, this local law tonight does not address this weakness. Further, the operational requirement such as jurisdiction, setbacks and terms need clarification so that the Trustees do not feel compelled to compromise the wetlands. Our letter asserts that the changes in the draft local law do not go far enough. That is the essential message from our letter. To illustrate, a troubling aspect of the draft local law that we are looking at tonight is at 275-2 in the definitions, where we say that the current non-disturbance buffer requirement 'typically 50 feet' is changed to 30 feet minimum. That change uses, goes from typically to minimum, changes the number as well. The new wording of 30 feet minimum perhaps suggests that the Trustees are trying to move in the direction we are advocating of not being able to mitigate down to very low numbers. Or completely waive the requirement. But other requirements in the same document are already stated as minimums and yet apparently the Trustees feel compelled to issue permits with requirements less than minimum under 275-3D2, the waiver clause. So we don't know how the Board of Town Trustees will interpret the term minimum or how the whole Town will interpret the minimum. Webster defines minimum as the least . . 22 Chapter 275 Revisions December 4, 2007 quantity assignable, admissible or possible. The least. Perhaps we should ask for a definition of minimum in the code. Maybe even offer one such as all the relief that requirements that can be granted under any circumstances. But minimum evidently isn't, according to Webster, as we use the code. The Trustees believe they cannot require the impossible. That drives a lot of this and maybe they can't and still survive a test of reasonableness that permeates the law. The Trustees have issued permits at much less than the minimum. The use of these words is illogical. The point is that the words in the code should put the Trustees on solid ground when they try to perfect our wetlands. This will take a more comprehensive change than we have here tonight. SUPERVISOR RUSSELL: Thank you. Sir? FRANK PELLIGRINO: My name is Frank Pellegrino, I live in Minnehaha Boulevard in Southold. Just to get it down to an individual homeowners question. I have two questions. I have a very old house, it was built in 1955 by someone who wasn't a builder. It has been there relatively unchanged for years. It is not a big lot. Quite honestly, from the high water mark, 100 feet puts my house out in the street. If the Town comes in, well my question is this. Where does the wetlands begin? Because am I to understand that somebody could come to my house, and I am not looking to build a pool or do anything, that somebody can come to my property and say that you have to put in a 30 foot buffer from where, because I would have to take down some of my house to do this. So what I have is a fairly small spot, plot and I think probably this is more typical. It is not a McMansion. Believe me it is a very modest house and all the houses in our community are modest. But there was a sea wall built, I guess when the developer, I think actually one of your ancestors owned all that property and sold it off and then the wetlands go beyond that, the low water mark. Where does the wetlands begin? Where does the buffer begin? COUNCILMAN KRUPSKI: You have a bulkhead now? MR. PELLIGRINO: Not a bulkhead. There was a concrete sea wall that is actually now over the years and this is over the 60 years, the wetlands is actually north of the sea wall. The sea wall is kind of in the middle of the backyard now. I guess over the years the runoff maybe just encroached on the creek. In some places in the community, the sea wall is where the creek begins but not on my particular property. COUNCILMAN KRUPSKI: I can't speak for the current Board of Trustees but I would assume that the way they operate would be the same. Basically the buffer, the non- disturbance buffer refers to a piece of property that hasn't been built on or touched, in pretty much its natural state. So if had a piece of property that was undeveloped and you wanted to put a house on it or a pool or a garage, whatever else, with a driveway and cesspool and all of that, you would be required based on the size of the lot, based on the environmental condition of the wetlands, the quality of the wetlands and based on the way the rest of the area has been developed, to leave a certain area on your property undisturbed and not touch anything there. You would be allowed to have a four foot wide access path through it, to access the water. Now, you are in an existing... . . 23 Chapter 275 Revisions December 4, 2007 MR. PELLEGRINO: Totally developed, existing... COUNCILMAN KRUPSKI: It doesn't. This wouldn't change anything with you, with your piece of property. You wouldn't be required to do anything. MR. PELLEGRINO: Alright. COUNCILMAN KRUPSKI: Now on a, there is two different kinds of buffers. See and this is where the local code is better than the L WRP because we get more definition. There is two different kinds of buffers, the one I just described is an undisturbed buffer where you can't touch anything. The other one is if you had an existing bulkhead or in this case, sea wall, and you had to have it completely removed and rebuilt because of age, deterioration, storm event or whatever, the Trustees would require you to put in a non- turf buffer behind it, upland, to filter out the rainwater and upland runoff. The amount of buffer upland is going to be determined again, by the slope of your property, how much property there is, by the adjacent properties and their development. So you are going to get anywhere from 8 feet to 30 feet depending on, every situation is different. That is why the Board of Trustees does need a lot of discretion. The non-turf buffer, part of it could be a wood decking, part of could be sand or gravel, some of it could be plantings but it could be non-turf. MR. PELLEGRINO: But it would apply to an existing structure... COUNCILMAN KRUPSKI: Only if you are going to.... MR. PELLEGRINO: (inaudible) if the sea wall needed to be repaired. COUNCILMAN KRUPSKI: When it is repaired, that area that is already disturbed, because it all going to have to be dug up to be repaired, that area typically and correct me if I am wrong Jim, that area would typically be required to be put in with a non-turf buffer. MR. PELLEGRINO: Okay. COUNCILMAN KRUPSKI: But if you put it, you could maintain it after that. You don't have to let it grow up after that. MR. PELLEGRINO: Thank you. And really, the question of jurisdiction doesn't matter because somebody is going to have jurisdiction. If it is not the Trustees, it is going to be the Building Department. COUNCILMAN KRUPSKI: Well, if it is that... MR. PELLEGRINO: From my standpoint, I think it might be more typical for some people, it is not the jurisdictional issue, it is actually what is going to happen to their property and somebody is going to come in and start making them do things that just, like Chapter 275 Revisions. December 4, 2007 I say, I would essentially lose the back of my house. My second question and I only have the two, if my house were to bum down, now I have a house that is just about under the 20 percent use of the property, ifit were to bum down, would I be able to rebuild it under these regulations? I would? . 24 COUNCILMAN KRUPSKI: Yes. MR. PELLEGRINO: Thank you. COUNCILMAN KRUPSKI: There wouldn't be any change in that. MR. PELLEGRINO: Okay. Same footprint? Or is it square footage on the house? COUNCILMAN KRUPSKI: Maybe Jim wants to address that but typically it would be, the Building Department might have different rules but the Trustees generally want to see the same type of setback but you wouldn't have to necessarily build the same house, you could build a different house with the same setback. MR. PELLEGRINO: But I mean, right now it is non-compliant. It was built... COUNCILMAN KRUPSKI: If the Town made everyone's house, like yours, uninhabitable, then we would have to house you all down here and that wouldn't work out too well. MR. PELLEGRINO: Inaudible. Then you are pretty much saying you are in danger of not being able to use your house and property. SUPERVISOR RUSSELL: This illustrates one of the more frustrating aspects for me. First, I don't really have a problem saying yes to people. They are fine with that. I don't even have a problem saying no to people if it is black and white in the code. The problem is when you have to say I don't know because everybody wants, and I met with a realtor's group recently and they want those specific answers and they are entitled to those specific answers and I don't know what to tell them and unfortunately it is not a perfect science. There has to be a margin of discretion that the Trustees have to emphasize and then we have communications issues here at Town Hall between ZBA, Trustees, Building Department. All of that stuff has to be perfected. One of the problems with this is that if you look at the L WRP, it talks about what we want you to do. Well, we didn't focus on that, we focused on what we don't want you to do. And if I vote for this tonight it is with the caveat or understanding that the next L WRP mission will be to put out the information on what we are looking for people to do, so they don't have to keep shooting in the dark and hoping it is the right thing. That is where the problem is. MR. PELLIGRINO: Thank you very much. Chapter 275 Revisions. December 4, 2007 SUPERVISOR RUSSELL: Mr. Meinke did have his hand up first. Then I will go to Pat and then I will go to you, sir. Okay? . 25 HOWARD MEINKE: My name is Howard Meinke and I currently live in Mattituck and I am a member of the North Fork Environmental Council. I started weekending and summering on Broadwaters creek, Nassau Point, waterfront. My dad built a little place there in 1936 and I weekended there and summered there and lived there since 1990 and I left there just last year. So talking about Broadwaters creek, it was not a dredged creek until maybe in the 60's and the water was very clear, we had blue crabs; I remember they would just come running up and run around your feet. We had toad fish and we had blowfish and we had eels squirting around there. There was a great quantity of weakfish out in the bay, scallops used to jump around in the spring on the, come out of the water. It was a very fertile place and it has been told to me that where the water comes into that creek, there is freshwater running in underground and it makes a creek like that lower in salinity than the outside water, which is an extra good environment for the nursery of small seafood and the stuff that makes the ocean work. Now after it was dredged in the 60's, a hell of a lot of sand came out of there and they didn't throw it all to the grass as they did with Deep Hole creek, they at least took it up and put it on the causeway and the road and the causeway that, there was the parking lot used to be the main road there and the current main road was all built from the fill that came out of Broadwaters creek. Now, then we got lower low tides, higher high tides. My assumption is it got much more salty and we very quickly, visibly you could see it happening; lost the eels, lost the blowfish, lost the oysters, lost the scallops, lost a lot of the action. Simultaneously, when I go in the creek now, we have developed a fair amount of this green cellophane sea weed which we didn't used to have and the water is not near as clear. I can also say that in 1936, there were just a few small houses around the creek, there were great areas of nothing. Then it slowly built, there were a lot of summer houses built close to the creek with cesspools, maybe above high water, maybe not. And you make your own conclusions. But the creek certainly went downhill. Now I have felt very bad about that. Now all the people here are custodians of our waterfront and it seems to me that whatever we can do to preserve the waterfront and preserve the fertility of the water, the cleanliness of the water, is something that is to everybody's advantage. Now we are talking here about the Trustees. Their job is to preserve your value and your value is also one of the primary values of South old town. It appears to me that we are all on the same side in this argument. All I have heard so far here is a lot of justified, I suppose, hollering and screaming about procedure. Now procedure is not an environmental problem. Let's not louse up the environmental activity that we are trying to do with a lot of time spent on procedure. I would like to think we are smart enough to fix procedure but I admit procedure is pretty ugly. I mean, we all pay taxes and we'd love to fix that procedure and nobody has ever done it, so whether we can fix this, I don't really know but we should not waste our time here just bitching about the procedure because really what is in the L WRP and what is in the Nature Conservancy list, what is in the NFEC list, what is in the Trustee changes are good for the environment and good for all you people that live on this environment, live on the waterfront. So I think we have got to home in on where the problem is and we have to obey what modem science tells us, modem science says that setbacks are important if we are going to preserve the creeks, the creeks seed the oceans Chapter 275 Revisions. December 4, 2007 with little organisms that make fish, the ocean's food supply, the fact that it is going to hell in a handbasket is causing a certain amount of world hunger. Weare part of a bigger picture and it isn't just selfish, where does my dock go? It is the whole big picture. So it seems to me that we should look at the environmental issues here. I think the Board is well aware that there are procedural issues and that clearly has to be solved but I would think blending the various numbers, code, could be put together. Blending in with the state could be put together but putting that together doesn't do a damn thing if we don't keep up with science with our environmental regulations. Thank you. . 26 SUPERVISOR RUSSELL: Thank you. okay, Pat. PATRICIA MOORE: I, like Rob Herman, have spent the last 20 years, I am a little older than he is, my Wednesday once a month with the Trustee's, just like with the Planning Board. So you get to know the procedure and no offence but you are asking everybody that owns property on the water to follow the procedure. They are the stewards of the waterfront. They are the ones that have the most interest in making sure that the waterfront is as healthy as it possibly can be because it affects the value of their property directly. So I think it is a very important point and unfortunately, procedure is very relevant because when it comes to going for permits, making sure that it is all done right, if you don't do it right, then you have a very extensive violation procedure that ends up costing applicants a great deal of money. So I think that it is well worth our time to spend a little of the effort to fix the code, make it the best possible. I commend the Trustees for trying to make the language clearer, to try to address the problems that have been ongoing. I give them even better credit than the Town Board at times, in correcting town code. Because they have really tried very aggressively to clean up 275, whereas I have come to the Board and asked for regulatory changes that have, nothing has happened. So with respect to 275, the non-disturbance buffer is an issue that I would ask you to look at, as Rob Herman pointed out, not having a setback limit is really the most appropriate thing because the 30 foot minimum takes out the discretion and you do have properties that are various sizes. Thirty feet could be absolutely reasonable and not a burden on a two acre property but on an 1/8 of an acre, a y,; acre that has a house on it, 30 feet is essentially their entire rear yard. So it is a very relevant point and having, keeping it from a specific number I think gives the ability to be much more fact specific and site specific. Also, the definition speaks in terms of 30 foot non-disturbance, if they also throw in the word shoreline structure, so when, AI, you were discussing with the gentleman about the bulkhead or the shoreline structure, I would agree that in fact usually you apply a non-turf buffer to it but it has been included in the definition of a non- disturbance buffer. I don't think that is an applicable section, so I don't know whether it was just the language just didn't carefully identify how it is to be defined but when it also includes the language of a shoreline structure, I think it is misapplied. It doesn't belong there. So I would ask you to look at that very carefully. There, I wanted to, I pulled out, I was doing research on a file and I just happened to run across a letter that in 1985 was sent by Henry Smith, president of the Trustees, with the creek surveyors at the time, that in 1985 they went around town and notified property owners where their docks or their shoreline structures were in poor condition, they advised them, they said we recognize, your structure is presently unused and deteriorated, however, if you rebuild the Chapter 275 Revisions. December 4, 2007 structure in the future, the grandfathered application will be proof that you are simply maintaining your structure. So it was notifying individuals that if you had an existing structure prior to 85 and you made an application for a grandfathered permit that it was going to be recognized. That has been a recurring problem with 275 because 275 uses the language 'permitted structure' where the Trustees interpret permitted as permitted under 275 whereas I think most people that have been here longer than 1985 may recall that there was a letter sent out that they got a permit for their existing structure therefore it is permitted. So I think that there is some confusion and I have dealt with it with clients that have repaired their existing docks and got violated because the dock didn't have a permit. Well, it was preexisting. It either had a grand fathered or it was preexisting to that date and it was quite a surprise. . 27 COUNCILMAN KRUPSKI: Just to clarify that, back in the mid 80's, just before I got on the Board, there was a movement then to try to grandfather all the existing structures and that if you had an existing, functional dock... MS. MOORE: Mmmhmm. COUNCILMAN KRUPSKI: You would be given a grandfather permit, to try to kind of get a handle on everything that was built at that time. In 1991, the Town Board then adopted the coastal erosion which basically doubled the jurisdiction of the Trustees; giving the Board jurisdiction on the bay and the sound and all of those other structures then of course, had been built prior to requiring permits. So you had now a whole host of other structures that there was no, now there is no more grandfather provision. Because we wanted to kind of get through that in the mid 80's. And on the creeks, largely, the Town did get through all of that; to grandfather all the permits. But now on the bay and the sound you have all these other existing structures. That is one part. They never got grandfathered, the other part. . .. MS. MOORE: The ones on the sound, you are saying. Well, these went out to the bay. COUNCILMAN KRUPSKI: That was in the mid 80's though. I mean, it was early, 1991 where their jurisdiction was expanded. So in the mid 80's, that wouldn't have covered the bay and the sound at all. MS. MOORE: Well, it was specific to the bay. To the dock in the bay. COUNCILMAN KRUPSKI: It was only for creeks though. MS. MOORE: Oh. COUNCILMAN KRUPSKI: And then... MS. MOORE: Oh, you are saying the bay, not creeks. COUNCILMAN KRUPSKI: Right. Chapter 275 Revisions. December 4, 2007 MS. MOORE: That this was applicable to the creeks. . 28 COUNCILMAN KRUPSKI: Exactly. MS. MOORE: Then you expanded to the bays... COUNCILMAN KRUPSKI: Exactly. MS. MOORE: And then you expanded on the sound and now you have expanded from the top of the bank 100 feet on the sound. So the jurisdiction is expanding exponentially. COUNCILMAN KRUPSKI: And so all those structures, they didn't have to have permits previously and now that the jurisdiction has expanded now they are un-permited. MS. MOORE: So you are asking everybody that has an existing structure, to come in and get a permit? COUNCILMAN KRUPSKI: No. MS. MOORE: Yes. COUNCILMAN KRUPSKI: No. When you conduct some activity, at that point... MS. MOORE: Well, if you are repairing it, yes. Well... COUNCILMAN KRUPSKI: At that point. MS. MOORE: I think if that is the position that you are taking, so be it. That is the position you take. But the problem is that the code, when it says permitted structure or permitted under 275, I think maybe it would be helpful if you had a definition that specified what you are talking about because just what you explained right now, whether I agree with it or not, it is really up to the Board whether or not you do require somebody that who has got an existing structure, Costello is out there making a repair to a structure and it doesn't have an existing permit, it means that before we can make the repair now, you have to come in and get a permit... COUNCILMAN KRUPSKI: Right. MS. MOORE: Because it doesn't have a 275 permit. I think that is an enormous... COUNCILMAN KRUPSKI: No. No, no. But does it have a wetland permit? MS. MOORE: Well, that is the question. If the code says... COUNCILMAN KRUPSKI: Well, ifit has a wetlands permit, then it has a permit. Chapter 275 Revisions. December 4, 2007 . 29 MS. MOORE: Well, that is the problem. There is some confusion as to what is a permitted structure. COUNCILMAN KRUPSKI: Maybe it is confusion the way it is written. MS. MOORE: Yes. Well, if it is confusing where it is written, it is confusing to me to advise a client and certainly most people that I talk to, they are confused. So given all of that, maybe you can incorporate some definitional language as to what is intended as a permitted structure. Because you don't really say it, you just use the term 'permitted structure' . COUNCILMAN KRUPSKI: Then it should say, 'with a Town wetland permit'. MS. MOORE: Previously issued. You know, are we talking about any time in the time period that you are talking about? Or are you talking only after 19... COUNCILMAN KRUPSKI: No. 2004. MS. MOORE: 2004. COUNCILMAN KRUPSKI: No. SUPERVISOR RUSSELL: Are we talking about 'permited' or permittable? MS. MOORE: Exactly. SUPERVISOR RUSSELL: That was one of the two issues I discussed with VOICE the other night. MS. MOORE: Right. Right. That was issue one but even more specifically, I have heard different interpretations as to whether we are talking about a Trustee issued wetland permit under the previous 275 or 97 and 275. COUNCILMAN KRUPSKI: No. No difference. MS. MOORE: I don't think that is the way it has been explained. So I don't know if we are misunderstanding it or not, I think we all need, certainly I need clarification. At what point is a structure a permitted structure or not? COUNCILMAN KRUPSKI: When it has a permit. MS. MOORE: Okay. Any permit at any time. SUPERVISOR RUSSELL: It is almost like rock, paper, scissors here. COUNCILMAN KRUPSKI: You can have a permit from 1985, that is a permit. Chapter 275 Revisions. December 4, 2007 MS. MOORE: I would, that is how I have always interpreted but I have heard differently. So that is why I want to be sure. If that is the intent, that is great. So and that permit, apparently is good forever. If that permit is good then...oh, yeah. He is one of my clients that unfortunately he got a violation because he repaired a dock that the Trustees missed when they went out in 1985 and there was documentary history, you know, there were photographs that it had been there since 65. So those are the kind of issues that we deal with on a regular basis. . 30 COUNCILMAN KRUPSKI: I remember. MS. MOORE: No. This is after you. COUNCILMAN KRUPSKI: I know. MS. MOORE: Okay. When you are dealing with 275-5-0, you talk about tank removal and it says you 'removing a tank within 25 feet of the wetland is prohibited'. That doesn't make sense to me, there is, I think what you should be doing is having people remove it and relocate it. You are, whether or not, I guess I am, where it is permitted to be placed but if you are removing, it is prohibited to remove. That didn't make sense to me. That is the way it is written. With respect to access path, I have actually had this situation come up numerous times. There, if you have a piece of property, whether it is, the same is applicable with a one dock per lot and a one access per lot requirement. That is fine 90% of the time. Except when you have a waterfront piece of property that had a homeowners association or a deeded right of someone else that is a, a deed restriction on their title that requires them to have an access or give an access to someone else. This actually occurred on a piece of property I was reviewing on the sound where the homeowner on the sound had a set of stairs but the homeowners association, there were about five homeowners associations that had the right to build another set of stairs along the right of way, a 10 foot right of way, down to the beach. Well, the issue came up because you are only permitted one set of stairs per piece of property. That is fine except for the fact that you have, lots and lots of subdivisions and lots and lots of properties that have been developed out here that had provided for access to land, land front owners not the waterfront owners and it puts a restriction on the waterfront owner that is impossible. If you, as a waterfront property owner have your access or your dock or whatever right on the center of your property because that is usually where it goes, if the homeowners association has access for a dock or an access path along the 10 most easterly area of your property, that is going to be a problem. And it nearly ended up in litigation between homeowners association and the waterfront property owner because of that problem. So that was an issue with the one dock per property rule that was adopted in 275. Now you are kind of compounding it by saying, oh, and now one access per property. I think that that creates a problem where you don't, where there is a legal requirement on the property. COUNCILMAN KRUPSKI: Why would you need, if someone built a set of stairs on your property, why wouldn't you use that same set of stairs? Chapter 275 Revisions. December 4, 2007 MS. MOORE: Because that was, in this instance, those set of stairs were built in the center before that rule became into effect. So before 275, those set of stairs were in the center of the property. . 31 COUNCILMAN KRUPSKI: Preexisting? MS. MOORE: Preexisting. That property owner doesn't want the whole homeowners association traverse the property, go down the center stairs. That is not, nobody has a right to cross the property other than in the area of the right of way. So, I think you have to put, when you make those kind of rules, you have to provide for exceptions where there is deed restrictions or some other obligation that that property has. So if you don't create that exception, then it just creates a reason to say no and then it ends up in litigation. Finally, my last point, 275-16 with respect to compliance and penalties. There is, you have added a revocation of the permit provision which says that it is revoked where the Trustees, when a violation is found. Not when a violation has been determined by a court to be a violation but when the Trustees have found a violation. So there is no due process, there is no procedure, you are just, your permit that you have, that you spent good money to get now is revoked based on this language given the Trustees power to revoke the permit that they have. That is going to create all kinds of problems, for one, there is a vested right in a permit, you can't just revoke a permit without a hearing, without due process. The fact that, the language as it is written just says if the Trustees find that a violation has occurred, they have the right to revoke the permit. So I think that that is going to, certainly that, I have legal concerns about that but as fair as fairness concerns as well. COUNCILMAN KRUPSKI: What section is that? MS. MOORE: That is your, 275-16 section 6. It says, 'revocation of a permit when a violation of this chapter is found' COUNCILMAN ROSS: It doesn't say who it is found by, though. MS. MOORE: It is found. It is found by the Trustees. How is it found? You tell me. COUNCILMAN ROSS: They can't find it, right? The Trustees couldn't find the violation.. . MS. MOORE: They do but the way it is written... COUNCILMAN ROSS: I would read that as a court oflaw. MS. MOORE: That is not the way it is written. I would agree with you, I think that the only way that they could be fined, is that the court of law makes that determination. I have.. .are you pointing at the next person? Chapter 275 Revisions. December 4, 2007 SUPERVISOR RUSSELL: I am just lining them up because I have a guy chomping at the bit over here. I am sorry, Pat. . 32 MS. MOORE: No, that is alright. SUPERVISOR RUSSELL: Thank you. There is a gentleman here that ones to speak, then the gentleman back, then you and I also have Mark Terry that wants to address the Town Board, I saw his hand up. Then we will go right over here. DAN CHRISTIANSON: I am Dan Christianson from Mattituck. I thought I might have a little more time than I did. I have got some handouts that (inaudible). Much of what I was prepared to talk about has already been discussed, so I will just hit some quick points and turn the job over to somebody else. First of all, the L WRP talks about protecting living organisms as part of the discussion of environment. I would like to submit that the human residents of Southold are living organisms whose environment requires protection. Just a statement. Also, there has been a lot of discussion about the reason behind some of these regulations. They generally revolve, quite understandably, around developers. Some of the property owners that I have talked to feel that in effect, there has been a wide net cast in order to catch a small number oflarge fish. And a lot of the small fish are being entangled in the net. Probably unintentionally. Some of the discussions you have heard are, what happens to this little guy, that little guy? The regulation was designed to look at a developer. There already has been discussion about actionable requirements. Terms like, 'as designated', 'as determined by', 'at the discretion of', are quite understandable but it is hard to get a spec to a contractor saying the structural components are as determined by the Trustees. People on both sides of whatever aisle have asked for more detail. From my own position, I say the same thing. Omissions and commissions. We don't want to talk about non-amendment things but it is difficult to talk about the amendment if you don't talk a little bit about what it doesn't do. And again, both sides have talked to that. One thing I would like to bring up as an example, there has been some discussion I think about the positive nature of275-4 A, 10, which says you can put in a dormer, you can put in new roofing, you can put in siding without any problems about functioning, about pre-existing, about permitting. But if you go to the same 275-485, you can't repair those things, you have just directed without all the considerations. That is bordering on the insane and probably just an error. But it is an example of where you get tangled up. Definitions: been beaten already. Residential dock probably needs to be defined as a water dependent structure. I mean, it is not there to reach the Sahara desert. Functional functioning, I understand why it is there. but it is hard sometimes as you have heard already, for people to understand and I have also heard, you have got to trust the Trustees. The Trustees have got to trust the landowners too. If my dock is heaved up by the ice, is that still a functioning structure? I am not asking for an answer now but consider it rhetorical. One thing that I think probably either needs a definition desperately or a different word, is where in many cases it talks about activities. Any activities, all activities. There is no definition for activities. In earlier, 268, the L WRP section 5, there are definitions and discussions of operations. I think, in most cases, where the word activity is presently used, it would be quite proper to talk about operations. Somebody discussed where 100 or 150 foot line impacts his house. Chapter 275 Revisions. December 4, 2007 Some of our houses, that includes the bedroom. I don't think you want a permit activities between consenting adults in the privacy of their bedroom. And yet, if you read it literally, that is what you are asking for. Permitted, and I am going to go to my notes on this one. . 33 SUPERVISOR RUSSELL: Dan, I am going to look for that bright orange sign in your window tonight when I drive by your house. MR. CHRISTIANSON: But you understand... COUNCILMAN KRUPSKI: What are the Trustees thinking of? MR. CHRISTIANSON: An Aristotle like argument. SUPERVISOR RUSSELL: That is a fair point. MR. CHRISTIANSON: Permitted, defined. I have in that hand out a list of is permitted and I heard an answer, allowed by past practice or by covenant; the house that we live in was originally built in accordance with a covenant between the Gildersleeve boys and the people that bought the property. That is when they owned the general store on Love Lane. 1949. Is it permitted because it is in accordance with the covenant or allowed by regulations, town regulations enforced at the time of construction. Our house is (inaudible) like topsy. Not a McMansion but a little piece here and little piece there. is it covered by an Southold permits? Is it covered by 275? Is it covered only by 275 as currently amended? Which means every time you amend it, everybody is out of compliance. Or permitted use. LWRP. One family's detached dwelling, per single and separate lot of record in existence as of the date of adoption of the local law. That isn't what I have heard but it is a nice, clear definition. If it existed when, somewhat like your dock furthering. There has been talk about grandfathering. Other than history, which is interesting, I don't think most of us agree with what we mean by grandfathering. I would ask you to think about code applicability. I have done a fair amount of power plant work over the years, factory work. ASMED 31-1 has been revised and revised and revised. When a factory is built to be 31-1, 20 years ago, which is where I lived and it is revised, you don't tear the factory down and build a new one in accordance with the new code. In fact, you don't repair the hardware in accordance with the new version. Of course, it may not be compatible with the geometry or the existing piping and pressure vessels. So think about what you mean by code of applicability. Finally, well, almost finally. One comment on dredging. And this is not so much talking about dredging as such but about the tangle we sometimes weave. The, 275 when amended, read maintenance dredging as defined by only is permitted. The word only was shifted to the front of the paragraph. Unfortunately, maintenance dredging is defined as dredging where there is documented proof dredging has been done in the past. So what this says, regardless of where only goes, is you can't dredge unless it has already been dredged. Unfortunately, the LWRP states, in implementation page 59, dredging and (inaudible) plans, this project would float from the shoreline inventory and erosion monitoring projects. The data from other projects will help develop a regular program of maintenance dredging and guide the Chapter 275 Revisions. December 4, 2007 deposition of spoils, etc. etc. Maintenance dredging there means dredging to maintain the environment. Not, I can document there has been dredging before. 275-11, C 3 A 2 states dredging may permitted when it can be demonstrated that the actions of man have resulted in impairment in water quality or habitat. But we have already said that dredging isn't allowed unless it is maintenance dredging. Can't get there from here. Also 275, II C 3 B, freshwater, says dredging of freshwater ponds may be permitted when it can be demonstrated that such action will restore the water body to its historic condition, improve water quality or habitat value. But not ifit hasn't been done before. It is a problem. . 34 COUNCILMAN KRUPSKI: Well, I don't think it is meant to be contradictory, I think it is meant to be more specific. MR. CHRISTIANSON: But when you read it from the perspective of, it is not clear. You have the advantage and I envy you of a long history of understanding. That is what we talk about functional requirements. You know what the requirement is. The poor guy that wants to, and I will leave with this, I promise. Last page, is a trial dummy case study. I don't ask you to fill it out or do anything with it but having gone to an MBA years ago, those Harvard case studies sometimes were interesting. As much it's with respect to the assumptions you make as with any answers. Let me read it for you and then I will shut up and sit down. 342 by 6 case study, a couple in their mid-70's (by the way, it is not me and my wife, we are both younger than that) are living full time in a home on one of Southold's creeks. They purchased the property in anticipation of retirement at age 65 and have resided their since retirement on a relatively modest fixed income. Their property as purchased included a conventional float ramp, fixed dock that was functional at the time of purchase and has been maintained with some relatively minor maintenance activities in a functional status since. They may already have violated. You don't even know whether it is permitted or not. Or anything else. Okay? Assumption. It is Thursday afternoon in the spring of 2008, the husband has walked from the home to the dock to check things out in anticipation of a visit for the weekend of their children and grandchildren. He finds that a 3 foot 2x6, which is part of the fixed dock decking, has deteriorated to the point of being a safety hazard. It needs to be replaced in kind. Upon reporting the condition to his wife, he is informed that the kids will not be allowed on the dock until the plank is fixed. Some of you may respond to your wives in other fashions, however come. Other than paying taxes, they have had no dealings with Town Hall other than buying dump stickers for their car. The husband has heard from a friend that upon asking for permission to repair the friend's dock, the friend had been handed a 22 page package of forms to complete and submit. The husband is capable of carrying out the replacement of the 3 foot 2x6 in about one hour elapsed time. He has available I. an 8 foot long untreated 2x6 2. a circular saw capable of cutting of a 3 foot piece of 2x6 3. a crowbar 4. a clawhammer 5. a battery powered 3/8ths drill with appropriate bits 6. a supply of suitable deck screws. Given the above and assuming that local law 275 has been amended as you feel appropriate, please specify, A. what action should the resident take? B. how long with the total permitting and repair process take, total elapsed time? 3. what will the total out of pocket costs be, including appropriate permit expeditor, lawyer, survey, engineering and "other" costs? List major expense Chapter 275 Revisions. December 4, 2007 . 35 elements. In light of our mandate to preserve our wetlands "for the use of our children and grandchildren" how do you justify any delay beyond one hour elapsed time in returning the water dependent dock facility to a full functioning status in time for the upcoming weekend visit? E. In light of financial practicality, how do you justify any non zero out of pocket costs? F. If you were not a town official, what might your action be under the given circumstances? SUPERVISOR RUSSELL: I don't suppose putting it off until getting a permit... MR. CHRISTIANSON: You understand why I phrased it the way I did? SUPERVISOR RUSSELL: I do. Look, that was the big frustration that I got from the members of VOICE, was that there is such an ambiguity to something that is functional. Do they mean functional right now or as of after the next nor' easter? MR. CHRISTIANSON: And what is permitted, what is existing, what is...again, and some of what you heard, I am speaking for myself not for Southold VOICE and some of what I reflect here is an amalgamation of what I have heard from a number of people. SUPERVISOR RUSSELL: Good point. MR. CHRISTIANSON: And I thank you. SUPERVISOR RUSSELL: Thank you very much. COUNCILMAN KRUPSKI: Thank you. SUPERVISOR RUSSELL: I am going to let this gentleman go and then I really want, Mark I know you wanted to say something, so can you get on deck because you are up next. WAYNE GROTHEY: Hello, my name is Wayne Grothey, I work for the Nature Conservancy on Long Island. With me tonight is Marian Lindberg, who wrote the letter that Mr. Wickham read earlier. Most of my comments Councilman Wickham actually spoke about that I was going to present tonight. What I would like to say is that our comments from the Nature Conservancy were based solely on science with a little dash of reality thrown in, okay? We are not, I want to make, clarify a couple of things about chapter 275 that Councilman Wickham commented on. One is that we thought that the dock code should be separated from the wetlands code. They are two very different actions in a way. Secondly, docks, moorings, dredging; they take place on public land whereas, you know, residential building takes place on private land. It is a very different activity. Third, the power that the Trustees have to regulate docks, moorings, dredging, bulkheads, that is derived from the Andros patent as far as I know. The power for them to regulate wetlands seems to be coming from this Board. I think that would be another reason to separate the laws out. As you know, we presented to you a modified version of chapter 275, you know, it is 20 pages long, I don't know if you had any time to look at it Chapter 275 Revisions. December 4, 2007 and also a document from the Long Island Sound program that talks about tidal wetland buffers and what I would like to do is just comment on actually two things tonight. One is the buffer width. We have had some folks tonight say that you don't need to have a standard in the code, I am talking not only as a Nature Conservancy person but as a person who worked for six years on a conservation board, looking at permits, denying and approving wetland permits, I have seen determined many times in Southampton. Part of the reason and he did say earlier that Southampton regulates their wetlands very efficiently, one of the reasons they regulate those wetlands efficiently is because their code is very strong, not to have a buffer, you know, a number for the size of the buffer, makes it so that on every single application, the Trustees would have to justify that buffer width whereas if that buffer width of 50 foot is justified in the code, they could ask for a 50 foot buffer on properties that are large enough to accommodate it and then reality would set in on some properties where you couldn't have a 50 foot buffer. You talk about 15 or 20, then that is what would happen on those properties. It is much, much easier to justify a variance on a property that is too small to accommodate the buffer that is in the code than it is to ask for a buffer on a property when there is no criteria whatsoever in the code and I think that you should really look at that. The second thing I just want to talk about quickly is the limit of jurisdiction. Right now, your jurisdiction is 100 feet from the tidal wetlands. If you look at most of the science, there is impacts from as far away as 650 feet onto wetlands that some of the studies, if you look at the one document I gave you on page I think 6 and 7, there is some information on that. I know that in the past you have been somewhat hesitant to increase your jurisdiction because it might bring in more properties under the regulatory realm of the Trustees and really increase their workload, so what we did at the Conservancy is that we did an assessment of three areas in the Town of Southold of what properties would fall under a 200 foot jurisdiction.. .. . 36 UNIDENTIFIED: We can leave this with you. What you see in purple are the lots that, lots that would not come into your jurisdiction ifit were 100 feet but would come in ifit were 200 feet and you see that it is really not that many in purple. So that you are talking about lots that already regulated and you would have the opportunity to look at operations or activities on more (inaudible) and the point of this is, we know that you really don't get too far afield from what is directly in front of you now but our (inaudible) we can leave them with you. The point is just to show you that it doesn't really increase the number of lots very much and a lot of these wouldn't even come in because if there is a road separating them from the wetlands (inaudible) and there are three areas here (inaudib Ie). MR. GROTHEY: I would like to add that some of those properties that are identified on these maps are farmland. And farmland is also exempt in your wetlands code. And in the version that we, of the wetlands code that we gave you, properties that are separated by a road from a wetland, they are also exempt, most municipalities do that. COUNCILMAN KRUPSKI: I don't think we are going to consider that tonight but we would consider it, you know, we would like to look at the maps. The thing is, it is not so much the additional properties that would be affected by the code if you doubled the Chapter 275 Revisions. December 4, 2007 . 37 distance, it would be all the increased activities, we don't want to get into what activities but all the increased activities it would affect on the additional 100 feet of property. SUPERVISOR RUSSELL: I just, you know, to be honest to all of you but you had asked, started the hearing by saying let's stick to what is on the table and I appreciate all this and this is going to be good discussion as we move forward but I was really hoping, we have a lot of people that want to speak and I was hoping to be a little bit narrower to what is being proposed for adoption tonight. COUNCILMAN KRUPSKI: I think everyone is getting warmed up here, Scott. SUPERVISOR RUSSELL: I know. UNIDENTIFIED: All I would say is, if you have this much comment on what you thought would be the easy part of the proposed changes, perhaps you should have gone for more the first time. SUPERVISOR RUSSELL: I am starting to miss the landfill building discussions. UNIDENTIFIED: Well, we look forward to more dialogue on some of the other issues. Should we leave these with you? SUPERVISOR RUSSELL: Yes, please. Thank you very much. Okay, Mark Terry and then we are going to go to the Peconic baykeeper. MARK TERRY, LWRP COORDINATOR: My name is Mark Terry, I am the LWRP coordinator for the Town of Southold. I just want to thank Pat Moore for sticking to the agenda on the amendments and I just want to do some clarifications, discuss some clarifications about the L WRP because I think the people who not necessarily support it but the people who don't understand it, haven't read it or haven't read chapter 268. I am a little perplexed how the L WRP has been sensationalized into its own governing body. It is a set of recommendations to discretionary boards. The boards make the decisions. The LWRP cannot deny or cannot approve a thing. The discretionary board, such as the Planning Board, the Town Board and the Board of Trustees makes the final decisions. I just want to clarify that. I agree that 275 and 280 are inconsistent in practice. I think it needs changes, I think it may need swift changes because the setbacks conflict, it costs applicants money and I think that should be on the agenda for a future code amendment. I also want to explain the fundamental basis of the LWRP is that it affects all the citizen's rights. It affects the waterfront rights and the non waterfront owner's rights. It upholds environmental health and public access to the highest regard. And I think that it deserves a little bit more of a closer look and that it is a very young program and there are kinks in it and I experience kinks as well as the agents. Lastly, on the comments that were proposed tonight, they were comments on clarity, on the benefit of the applicant's behalf because when you have an administrative permit process, you have to set up conditions. Otherwise the administrative permit processes are as disconnected from the conditions buried into the rest of the chapter. That has not happened. I urge the Board to go ahead Chapter 27 5 Revisions. December 4, 2007 . 38 and consider that in the adoption of these amendments. And you know, just in closing, when a bad project happens in this town such as a liquefied and natural gas facility, or something that we can't even forecast; a use that we don't even know that is going to come to your marine waters, the L WRP is the only thing you are going to have to fight it. That is it. SUPERVISOR RUSSELL: Thank you. Kevin McAllister. KEVIN McALLISTER: Thank you for hanging in. My name is Kevin McAllister, I am your Peconic baykeeper. I want to start by at least offering some qualifications, you know Rob spoke about his experience before the Board. You know, I have over 20 years of professional experience in resource management and to some extent, certainly involved in crafting these resource protection codes. I also want to speak in larger terms relative terms to the estuary and I think of eco-system terms and I guess I will strongly disagree with the notion of bringing it down to a microcosm with home rule. I think that is flawed thinking, I think we need to embrace expertise that is out there certainly on a state level, federal level. I mean, if the expertise exists, we should embrace it and bring it right down to our local level. What Southold does does mean something to Riverhead and Southampton and vice versa. You know, we share the same bathtub and I think it is imperative that I think we are all working to the greatest extent possible to protect this resource and aspiring to the best available science and again, striving to implement coastal zone policies that are meaningful and well-founded. Relative to buffers and I heard Wayne talk about that, I would also support defining hard, fast lines on the buffers themselves but allowing for the option or the opportunity for appeal when you have again, substandard lots and the inability to construct. I mean, these buffers are critically important and I also feel, and this may be a bit critical but I must say this, you know the discretion unfortunately because of the push and pull with the applicants can lead to some bad decisions. And you know, I was disappointed in the Trustees action a few years ago relative to Brushes Creek, where a setbacks were not hard and fast and adhered to and actually based on the site plan if it in fact was built as presented, we lost wetlands, there was a roadway through wetlands incredibly close to wetlands when in fact, the opportunity to shift that roadway for a subdivision to the opposite side of the property would have protected that stream corridor; that didn't happen because it was based on discretion. So again, essential to establishing those setbacks and again, with the opportunity for appeal. Relative to what is functional, in hearing some of the speakers, I certainly appreciate obviously a icy dock and you know the ability to rebuild. I mean, we have to be practical and realistic about what makes sense and you know, that has got to be built into this code but I will say when I was hearing also some discussion on a groin field that was lost in the nor' easter, you know, of April and the state imposing their discretion not to allow this to be rebuilt. We have to be willing to rectify past mistakes. Because again, going back to my earlier points about having a greater level of understanding over time, you know, there is recognition that our bulkheads can be problematic. There is recognition these groin fields can impact shorelines. Actually you know, causing erosion downstream etc. Provision for CCA and I applaud the Trustees for bringing this forward and again, this is science that has come forward and it is time that we keep the materials out of the water column. Certainly the studies that I have seen Chapter 275 Revisions. December 4, 2007 certainly demonstrate dead zones in the (inaudible) on the near shore from these walls that again have chemical treatment and preservatives. Again, with barricades, another important thing in certainly hearing the Trustees over the years relative to again properties that front waterways. Again, you know, there are waterways and our beaches, those are riparian zones. Those are publicly owned resources and the ability or the restriction on access due to a shore perpendicular fence, we have to take a hard line against that. We have to certainly enforce that and ensure again the ability to come down through a public access and to walk left or right along the shoreline and enjoy that aesthetic resource, spiritual resource, whatever it means to our lives but the ability to walk on that beach and not be restricted because of a you know, the feeling that again it is a publicly defined properties. The last item on procedure and this goes to the, I guess, (inaudible) and I must applaud Mark for I think a really diligent work in trying to develop this code and mesh it in with obviously the Trustees jurisdiction and their enormous responsibility but you know, I would ask you to try to the extent possible to really bridge the function of the Trustees with the Planning Board to again, have that expertise and that additional oversight and analysis, environmental analysis on these applications as they come forward. And as I said prior, you know, certainly when it comes to inability to perhaps obtain a permit relative to restrictive buffers, you know, maintaining the opportunity to appeal and have some further discussion and consideration for again, a property would otherwise not support a structure. The last thing I will say, you know, in directing this to the Board but certainly speaking to the audience, you know, this is our resource, this is our resource, this is our bay. These stream corridors, the buffer zones, these wetlands, you know, they mean so much to the overall health of our system and you know, I would argue and I heard Howard speak earlier that you know, we have seen a precipitous decline in these resources over the last 25 years and you know, the common denominator is people pressure. And I think to some extent, a waterfront property owner is not trying to do the wrong thing but you know, some level of education to enlighten them you know, relative to turf areas and enhancing buffer zones and ensuring a natural shoreline versus moving forward on a bulkhead because they don't know any better. And we have to really push the envelope on public education to ensure that the coastal management policies, as they advance, are being supported by the community as opposed to opposed because of lack of understanding. This is our resource and we have to really pull together to ensure its protection for future generations. Thank you. . 39 SUPERVISOR RUSSELL: Thank you. Who is next? Mr. Hardy? And then you next. DOUG HARDY: Since you are getting glassy eyed now, I am Doug Hardy from Southold. I will try to restrict my statement, I did prepare a statement and I will hand it to you but I would like to focus just on one of the issues. There is an 800 pound gorilla sitting on the chapter 275 and this gorilla is interfering probably directly or indirectly with every aspect of the code. There is very little you can do about it and this gorilla is the rising sea level. The sea level which in the 20th century rose very slowly, approximately six inches in 100 years, since 1993 it has accelerated. And peer review data for the New York metropolitan area projects that in 2050 or 43 years as my addition is correct, it will be, rise 9 to 15 inches. This is very significant, it is bad news for the riparian property owners and it is something that you can't ignore in the code and it is not Chapter 275 Revisions. December 4, 2007 mentioned in the code and I would suggest that in section 275-3A in findings that you make a mention that something like, that a sea level rise may modify sections of this code. It should note that the Town retains authority to execute this code in the best interest of all the public. It has some legal significance because as the rising sea level impacts the shores and impacts the property owners, you are bound to have conflicts between the public trust doctrine and riparian rights and this will perhaps reduce then legal issues particularly regarding the takings clause. A second factor I would like to focus on is bulkheads, retaining walls and other hardening structures. And this again, is going to cause conflicts as the seas gradually rise, there is no way to stop it and the property owners are gradually going to lose their property and they must recognize this, so a legal issue then would result as the high tide finally reaches the bulkhead and then begins to climb up the face of the bulkhead. You have then where the mean high tide now is beyond the far shore. And so the conflict arises is the riparian owner now is on public trust land or does the public trust doctrine interpolate the mean high tide beyond the bulkhead? And this is an issue that you are facing now, there are bulkheads now that where the mean low water are perpendicular. Yet the Trustees cannot legally divest themselves from title and the private property owner may claim a taking if the Trustees lay claim to his or her title. It will be a burden on the taxpayer and private property owner to legally fight this on a case by case basis. I would suggest then, that you could avoid this conflict if a paragraph is inserted which would state that bulkheads and other hard structures which become permanently flooded by a rising sea level in such a manner that public passage between mean high tide is prevented. That the riparian owner shall be required to give and maintain a public passing way on the upland not less than five feet in width, to enable persons to pass and re-pass around the bulkhead. One other affect of rising sea level where the bulkhead is landward of a tidal wetland, it will cause the elimination of these wetlands because the presence of such bulkheads will prevent the natural erosion of the shoreline upon which the wetlands depend in order to migrate landward as the sea erodes and submerges the seaward march face. So the Town will be confronted with difficult ecological and investment decisions over which tidal wetlands merit salvage and which be allowed to disappear. These decisions require technical expertise of where and if bulkheads will be allowed without violating the good of all the public, under the public trust doctrine. These decisions for long-range planning would best be generated in a Town department of natural resources. So I will just give you what I had prepared. . 40 SUPERVISOR RUSSELL: No, I appreciate everything you said. You do realize you are talking to a Board that took 20 years to build an animal shelter, so I am not sure that we are going to contend with global warming tonight but we will certainly get to it. Go ahead, please. JENNIFER SKILBRED: My name is Jennifer Skilbred and I am an environmental advocate with Group for the East End. Just in case you may not know, Group for the East End is a professionally staffed, non-profit environmental advocacy and education organization and while we are new to Southold Town, we have been working on east end conservation and community planning issues for over 35 years, with one of our major focuses being protection of the Peconic estuary. We promoted the nationally significant Chapter 275 Revisions. December 4, 2007 designation for the Peconic estuary, helped set up the Peconic estuary program, advocated for continual funding of the program and its management plan and numerous other efforts aimed at water quality protection. And any decisions on your wetland code will ultimately affect not only Peconic estuary but also Long Island Sound. As you may know, the health of our tidal wetlands is essential to the east end way of life. They support our fisheries and provide vital wildlife habitat. They form the base of our estuarine food chain and are some of the most productive eco-systems on our planet. Tidal wetlands help protect us from storms and floods, they improve water quality, stabilize shorelines from erosion and provide recreational and aesthetic opportunities. And sizable buffers are critical to protecting these wetlands. Through our organizations many years of experience with land use policies and natural resource protection we have learned that a solid, defensible code is a town's greatest ally in protecting its resources and based on your town adopted LWRP and the LWRP coordinating council's recommendations and some of the other comments that we heard tonight, it seems that a comprehensive review and update of wetlands code might be the best plan for protecting this vital community asset and for strengthening the Trustees efforts to protect Southold's wetlands. Therefore, we respectfully request that you defer decisions on the proposed Trustee amendments until a comprehensive review of the wetlands code can be done, including the amendment proposals based on the L WRP coordinating council's recommendations. We feel it would be best to look at all these possible changes together, to ensure a comprehensive review and comprehensive public input. So, thanks for your consideration. . 41 SUPERVISOR RUSSELL: Thank you. Joanne? JOANNA LANE: My name is Joanna Lane, I am from Cutchogue. I have been sent two letters here that I would just like to read into the record, so I am just speaking here for other people, if that is okay with the Board? SUPERVISOR RUSSELL: Sure. MS. LANE: I would just like to say personally before that that we are all in agreement about one thing here and that is we need more time to review on all sides, since people are saying the same thing and that is interesting because the first letter I have to read to you is from Paul and Phyllis Torpey from Greenport and they are apologizing that they can't be at the meeting tonight. They said, "We are in accordance with all the issues raised in Southold VOICES call to action document already submitted into record of the public hearing on local law 275 and in addition we offer the following additional comments for your consideration. There are sections of 275 that strike a tone of petulance and combativeness which works against the spirit of mutual cooperation and trust that is essential for success and voluntary compliance which is at the heart of negotiated consensus rule making with all the stakeholders, including the Town Board, Town Trustees and tax paying owners and users. Section 275-16 is one flagrant example of this. Granted, fines are in order for persistent, willful non-compliance but the entire 275 document is so complex, has been patched so many times, is annoyingly ambiguous in places, and is difficult to even understand and interpret at times. And there are Chapter 275 Revisions. December 4, 2007 . 42 requirements within local law 275 that are judged by many of the property owners to be unfair and unnecessary. Given this state of affairs and until some of these things are either fixed or better explained, it seems to us that the knuckle-rapping should not be stepped up. In truth, it angers people, makes them dig in and it makes a mockery of the desired outcome of mutual cooperation and voluntary compliance. Along these lines, it is not clear to many of us what the thinking was in elevating fines and penalties by as much as 300 percent. Has compliance with 275 been so devastatingly bad that this is deemed necessary? If that is the case, we have a much bigger problem on our hands and even more work needs to be done to fix a flawed piece of legislation. We do believe the Trustees and Town Board have an obligation to take the taxpayers/stakeholders into their confidence and discuss with them, all of us, the reasons and rationale behind these draconian increases which, failing this, will lead to increasing discontent, if not hostility between the parties. Finally the other side of the coin is not at all pleasant to even mention. That is, are we creating the perception of using environmental protection mandates as a means of raising additional revenue for the Town? We think the Town Board/Trustees should establish a local law 275 reconciliation task force comprised of town officials and the other stakeholders to take a fresh, thorough and balanced look at the whole document and come up with an updated, clearer draft that reflects something closer to a reasoned consensus between all the parties. Respectfully, Paul and Phyllis Torpey" I would support that personally as well. It is not my statement but I do support that. The other one is from Gary Mangus, who is from Conklin Point. This one was actually faxed to you but he said he didn't get a clear copy through, so I don't want to burden your time if you already have a copy? SUPERVISOR RUSSELL: It does not sound familiar to me. MS. LANE: Okay. Would you like me to read it, then? SUPERVISOR RUSSELL: Yes, please. MS. LANE: Okay. "I live at 1295 Island View Lane in Greenport and I am writing in regard to the proposed changes to local law 275. my residence is on a creek and within 30 feet of wetlands. I am very concerned with protecting our wetlands and our natural environment. I began applications for work on my residence four years ago. The application is still in DEC and the approvals received from DEP have now long expired. The environmental control aspects of my proposal have evolved due to the slow approval process and the number of different agencies from which approvals are required; I will have to re-apply for essentially the same work previously approved. With the proposed local law changes, my proposed work would most likely not be possible. And this laborious and expensive process would be required to even maintain my current property. Our residence at just over 700 square feet is too small for our needs in order for my wife and me to live in Greenport full time. This proposed local law change could restrict us from living here. I am a NYS licensed architect practicing out of Brooklyn, NY primarily in the New York City area. Our Greenport residence was built in 1947 and includes virtually no run-off controls and an old septic system deeper than it should be given the ground water table. My proposal to rebuild on the same footprint and away Chapter 275 Revisions. December 4, 2007 from the wetlands includes an extensive green roof for the entire house footprint. This would control more than 85 percent of vertical rainfall through plant respiration and evaporation and for the remaining 15 percent that is released to be detained and released slowly for irrigation. A perimeter collection system is proposed to collect horizontal wind driven rain and divert it to dry wells for slow release. Both runoff volume and temperature changes to run-off back to the wetlands are controlled. A new conforming septic system is proposed. The foundation is changed from a perimeter foundation to pile type, making the land below the house available for absorption. The green roof will control for ambient outdoor air temperature increases as well. With this range of control measures there is actually more absorption and run-off control than if the land were not built on. What was my response from the DEC? They told me they are not concerned with abatement, and do not care about mediation measures or run-off control, they just do not want any more development. The permit process for current residents in or near wetlands is already excessively costly, lengthy and restrictive. Measures, which would make a difference, are not even considered while excessively restrictive regulations that provide little actual benefit are being put into law. The changes currently being proposed will make it excessively difficult for me to even maintain my property let alone make it more environmentally friendly. We need to foster a more symbiotic relationship with our wetlands and our environment in general. We need to learn to live appropriately in our environment. Legislation needs to be more flexible and change friendly. We are currently unnecessarily restricting or severely discouraging change. We need to encourage not discourage, environmentally friendly changes if we want to make a difference in saving our wetlands. Sincerely, Gary Mangus." . 43 SUPERVISOR RUSSELL: Thank you. MS. LANE: Thank you. That is all I have to say. I would like to just give a copy of this to whoever. . . SUPERVISOR RUSSELL: Sure. Of course. Would anybody else like to address the Board on this issue? Let me just see, Ray, if anyone else wants to go before we go around again. You know, irony or ironies, my assistant asked me to remind everyone that we have extended the free leaves and brush to the landfill until December 23rd, that was before I knew the meeting was going to go until December 24th. Go ahead, Ray. MR. HUNTINGTON: There are a number ofLWRP issues that can get into the fixture. There are 17 other chapters of the town code that are impacted. The point that I would like to come to in closing, is what do we urge now? and that is to put this issue on the front burner, engage our legal resources in a way that we can figure out some of the more complex issues and get on with our comprehensive change to 275 as fast as we can during this coming year. I think the one thing that we need to do is to focus on 275 as opposed to some of the other chapters that are also impacted. Good night. SUPERVISOR RUSSELL: Thank you. Anybody else? Chapter 275 ReviSions. December 4, 2007 HUGH POLLA: Hi. Hugh Polla from Corey Creek. I would like to just make a comment about, I wasn't aware that the state was involved in controlling local laws around here. I would like to, you know, I kind of think that should be kicked. What does the state know? What does somebody in Albany know about the conditions down here on the east end of Long Island? . 44 SUPERVISOR RUSSELL: I am guessing you never met Chuck Hamilton. MR. POLLA: Excuse me? SUPERVISOR RUSSELL: I am guessing he never met Chuck Hamilton. He is the DEC guy that rides around with the gun. It's a long story, I will explain it later. MR. POLLA: I have a gun, too. Well, let's meet him. Maybe we'll have an OK corral, so. Alright, the point is this. As evidence of the state's effectiveness, I think that anyone that goes and takes the road up on the way to East Marion, there is a little place there put up by the state, it is supposed to be a boat ramp. And this boat ramp goes onto Long Island sound. The only trouble is, the geniuses that designed this and spent the money to build it, didn't realize that the tidal action puts up a great sand bar over the run way or the ramp that goes to the sound, so it presents it unusable unless you go there with a plow truck; plow the ramp clear and then you might be able to get a boat into the sound. So there again, I don't know who decided on this but this is the kind of action that can take place by some guy up in Albany who is looking down at a map and doesn't know the local situation. That is all. Oh, one other thing I might say. If there are objectionable waterfront structures by waterfront property owners and so on and so forth, might it not be creative perhaps to think about a way you create incentives to have farmers sell their development rights so that it will benefit everybody? Maybe if you want to get rid of a bulkhead or you want to do something that is more environmentally friendly, might you not consider developing some kind of an idea of giving that homeowner some kind of an incentive for making his waterfront property a little bit more environmentally sensitive, environmentally friendly, rather than taking a big hammer and going over there and saying, oh, we are going to fine you and we are going to hit you over the head. Some people don't like that and they might use the hammer and throw it back at you. Thank you. SUPERVISOR RUSSELL: Thank you. Peggy? PEGGY DICKERSON: Peggy Dickerson, Southold Town Trustee. I will be brief but I just want to reiterate what has started to be said by Al and what Jim was saying. I work with the past Board in 2004 and in 2004 we did a major, major rewrite of the code that my dad had originally worked on and I don't think we had this audience at the time when that law was passed. Soon after that, two years after that, we made our first amendment. Then our commitment, when we did those rewrites in 2004 was, this was a living document and it would continually be improved and I think one of the biggest misconceptions tonight is that this is the finale and that this is the final and it is not. And it is not the intention of the Board to be the final revisions. The intent of our Board was Chapter 275 Revisions. December 4, 2007 to benefit the applicants, to make the process easier. It was to make our office more efficient and to also make our legal department more efficient. That was our intent. The legal language is difficult. Just ask our Board, who works hours and hours and hours on it, so it is kind of ironic that we are all here saying, all of us, here in this room, we are all saying we are here for the environment and how important it is and yet we have such conflict. So I urge the Board, these are minor changes. Our Board is committed to continuing those changes. We spent the last two years creating a list of ongoing recommendations and ongoing and we have already started our next list. So in no way do we see this as final, there is much work to do but these will make our office and help us to work more efficiently. Thank you. . 45 SUPERVISOR RUSSELL: Thank you, Peggy. COUNCILMAN KRUPSKI: Thank you. SUPERVISOR RUSSELL: John Costello? JOHN COSTELLO: Well, I certainly agree with what some of what Peggy said. First of all, this is a living document and it has to keep alive. You have to keep it alive and you have got to keep changing it. When there are mistakes in it, clean them up, modify them and get them straightened out. First of all, I believe that there is a lot of arbitrariness in this document. There is a lot of discretionary decisions and Al was right when he said they went through in 2004 and they codified many of these things and corrected a good portion of their codes, which was only policies. They got in trouble all the time, running with policies. Don't run with policies. Codify the right things in the code and eliminate the wrong things. They have several things in this document. One of the things the document does and it seems to be working quite well, is educating people. Educating people on the values of wetlands, setbacks, everything else. One of the things you have as a Board of Trustees, five of them, that can listen to you and you can appeal to. State your reasons for doing something. I have no use for the LWRP because I have been involved with several of them. I was involved with Sag Harbor's originally. They are trying to figure out how to get out of it. Let me tell you, I was in Greenport's and modified it because half of the Greenport businesses were illegal. You can't have a restaurant on the water. You also have deep water in the Greenport area. Tides will come up to the water, in big harbors you need marinas. People have boating, I mean, it is a fact of life. Half of their recommendations for the Trustees are people coming in looking for docks. There is more people. That is certainly an environmental problem. Particularly when they all want to be on the water, if they can afford it. When the economy is good, they want a dock, they don't even have a boat. Because it ups the value of their property. It is a money issue. You have got to protect the environment and the Trustees certainly, five members, are the group to do it. Not the LWRP and the men in the New York Department of State. That was a mistake. But that was a mistake and I think what you have got to do is take some of the power away from them and hand it back to the Trustees. I think this part of the code, these modifications in the code, I think the enforcement is excessive. Discretionary, the violation can occur and if it is decided by the Trustees, it could be a violation every day. That can't possibly be and the fines are Chapter 275 Revision. December 4, 2007 quite excessive. Try to educate the people, try to give them as much knowledge on how to protect the environment and they are getting there because you can see the proof of people here. I don't believe there was one person that was adversarial. They want to use their properties. They want to maintain their properties and I think they should. But I also think they have got things in here, the functionality, what is functionality? I mean, I hope this board doesn't start hiring the people necessary to enforce everything in this modification. You will need an engineer, you will need an environmental consultant, you will need police, you will need a lawyer. More people, if everything in this is enforced. You are going to need people. You need more experts. Much more experts. One of the problems I have with this is tropical hardwoods. You don't want to use tropical hardwoods unless they are certified? You can't get certified tropical hardwoods because there is only a minimal staffing. There is only a small, small group of people that will certify them. Do you know where the tropical hardwoods start? Key West, Florida. Most of the growing world. I know that I was trying to get all the rights to all the trees in the arctic's. There aren't any. The tropics are where things grow. In Southampton Town, they make you use tropical hardwoods. They do not want treated materials. Southampton Town doesn't have an LWRP and let me tell you, they are the most stringent around. And they are excessively good. And the Trustees will come visit the site, they will talk to you and they will explain where they are going to go and they are not going to go. Simple. Simple decisions. They are doing it for environmental reasons. And they are going to try to educate you, whether you want to be educated or not. And it is fine and I think the Southold Town Trustees are as good as they are. Give them the opportunity. Thank you. . 46 COUNCILMAN KRUPSKI: Thank you. PETER SCHRAMM: Peter Schramm, Southold. On the buffers, I have a very small piece of property, I was just thinking maybe instead of a no number of feet, maybe a certain percentage of the property should, you shouldn't be allowed to exceed a certain percentage. When you exceed a certain percentage, unless you get a tax break or something I mean, you know at some point where. ... COUNCILMAN KRUPSKI: Part of the, I think part of what I am going to suggest that that part, a number be removed from the non-disturbance buffer and it be left to the discretion of the Board of Trustees. The Board of Trustees, as Mr. Costello said, visit ever site. Every Trustee visits almost every site and they have to judge on the environmental conditions of the surrounding area and on that site, what buffer is appropriate. And you can't do it from a book and you can't do it in Albany. You have to go to the site and do it. MR. SCHRAMM: Well, they came to my property because I had a dock issue which basically as far as I can tell from this evening, it was grand fathered in but it cost me $3,000 to have it grandfathered in with the lawyer and the architectural, marine architect and but anyway, that aside, my buffer is going to be, if they want, is going to be about 20 percent of my property and it is going to be within 20 feet of my bedroom window. Which sounds a little excessive to me. Chapter 275 Revisions. December 4, 2007 . 47 COUNCILMAN KRUPSKI: Well, that is something you have to work out with the Trustees. And we can't affect the price of the lawyers, that is something you have to work out, too. MR. SCHRAMM: No, I am not asking you to. You know, what is done is done. But you know, I see people saying maybe the buffer should be zero, I am maybe the buffer should be a percent, you are telling me I should talk to the Trustees. COUNCILMAN KRUPSKI: They are the ones who have the jurisdiction and they are the ones who visit the site. MR. SCHRAMM: You know, and I understand your point. The property was in my wife's family since the 50's but the property has been maintained with a sea wall and mowed and since the 60's. So according to the marine architect, what has been being mowed for the last 50 years, they consider wetlands. So now they want to let that come within 20 feet of my house. Which, I don't know, if that is what they are demanding, I have to give it a shot but I think it is going to be pretty ugly. COUNCILMAN KRUPSKI: We can't judge it without being there. And this isn't the time really to get into that. SUPERVISOR RUSSELL: That is a more specific issue to a specific application, I am not sure that, but you know, I have to tell you, it gets a little confusing because one minute we move to do this and people say you are giving the Trustees too much jurisdiction and then five minutes later, they are saying you know, give the Trustees the jurisdiction they will do the right thing. COUNCILMAN KRUPSKI: Give them 200 feet. SUPERVISOR RUSSELL: Yeah. I don't know where, and some people were saying that in the same sentence. So it is getting very difficult to MR. SCHRAMM: Basically I am confused because one moment it sounds like what you told the gentleman from Laughing Waters, he wouldn't be affected by the buffers and all, well, the house that my wife and I now have, that was the family's, has been there since the 50's. The early 60's. It is the way it has been for the last 50 years, when they grandfathered in in, what you said the 80's, apparently they missed it because the dock has been there since the 60' s, so I have been here all night and it sounds like if I came back before the Trustees again, I would still be paying. Because I don't think there has been any answers achieved. COUNCILMAN KRUPSKI: Well, so nothing has changed then? MR. SCHRAMM: Nothing, I, Chapter 275 Revisions. December 4, 2007 COUNCILMAN KRUPSKI: These are minor code revisions. This isn't going to change the way the, basically reflecting the way they are currently doing business now. So this isn't really going to change much. . 48 MR. SCHRAMM: Well something needs to change if! have a dock that was there in the 60's, I was grandfathered and it cost me $3,000. COUNCILMAN KRUPSKI: But we can't affect... SUPERVISOR RUSSELL: I would agree with you, I would agree with him but it does highlight exactly what is going on here. MR. SCHRAMM: It highlights the problem. SUPERVISOR RUSSELL: Well, it shows you what is being proposed tonight is just codifying what is already policy. This isn't the watershed document that is going to come out of the LWRP, all those grand proposals. This is a lot of what the Trustees, and this is how they explained it to me, this is codifying things that they have already been doing in practice. These were supposed to be minor, non-invasive, as Rob Herman said, innocuous changes. But I have a feeling, this is very application specific and we can't answer questions, you know, since particularly the Trustees have the jurisdiction. MR. SCHRAMM: You know, I don't really have a problem with what they did, I understand what they did. The first night I was all atwitter and a little upset. I understand what they want. Certainly going to try to achieve what they want but I haven't heard anything here tonight that makes me feel like if I have it to do over again next week, things would be done differently. And from what I gather from what you said earlier, my case was mishandled. COUNCILMAN KRUPSKI: I doubt it. MR. SCHRAMM: I don't. COUNCILMAN KRUPSKI: I mean, I, and like I said I can't... MR. SCHRAMM: A dock from the 60's? COUNCILMAN KRUPSKI: I can't judge it without... MR. SCHRAMM: You grandfathered in the 80's. It shows on the aerial survey's in the 70's. COUNCILMAN WICKHAM: This is not the... SUPERVISOR RUSSELL: Yeah. You know, we are getting very specific to a specific application. Chapter 275 Revisions. December 4, 2007 MR. SCHRAMM: I understand. . 49 SUPERVISOR RUSSELL: Okay. Would anybody else like to address the Town Board? Christine? CHRISTINE RIVERA: Good evening. My name is Christina Rivera from Mattituck. I just have a couple of references to ask about. 275-14, it talks about transferability of a permit shall not be assigned without prior approval or review of the Trustees and the fee of $50 shall be paid. Is that going to be automatic? I mean, if you have a permit in place and you may not have even completed or started the project and perhaps you sell the home, do they have the right to revoke that permit or not allow you to transfer it? Or what is the process in order to transfer it? COUNCILMAN KRUPSKI: That is a change. MS. RIVERA: Well, it says the permit issued shall not be transferred or assigned without prior approval or review of the Trustees. COUNCILMAN KRUPSKI: That has always been the case. SUPERVISOR RUSSELL: Yeah, it has always been. MS. RNERA: Yeah, my question is that, when you get a CO for the house, when you get a variance, when you get a building permit and you sell the house, that is transferable. It goes with the house. COUNCILMAN KRUPSKI: Right. But you have to go through the Trustees in order to transfer it because the Trustees will review every permit, whether it was granted last month or 20 years ago. The Trustees review the permit and then they can transfer it, without a public hearing. It is a, by resolution at a meeting. MS. RIVERA: Would it be automatic? I don't know. I am asking you ifit is automatic? COUNCILMAN KRUPSKI: It is not automatic. Sometimes the Board will make changes to the permit. Appropriate environmental changes maybe they want to see some drywells or gutters if it is new construction or something like that. Maybe want to see something moved, maybe they want to see something slightly different. I have never seen any major changes in a permit transfer. MS. RNERA: So if.. COUNCILMAN KRUPSKI: Very minor. Possibly usually not. MS. RIVERA: Perhaps if you haven't even begun the project and you sell the house, there is a possibility that that building plan or structure may not get approved even if you have a permit in place. Chapter 275 Revisions. December 4, 2007 . 50 COUNCILMAN KRUPSKI: Doubtful. Doubtful. I have never seen it, I have never seen it and Peggy is agreeing with me. Never seen it not transferred. MS. RIVERA: Okay. Because as I said, CO's always transfer and building permits and variances always transfer with the property and I was just curious about this. And my other question is, is that when you go for a building permit and you are clearly in 100 feet, you are beyond 100 feet of wetlands for example, the Building Department sends you to the Trustees to get a non-jurisdiction letter. So you have to go to the Trustees and pay the permit fees etc. to get a non-jurisdiction letter which doesn't really make any sense, that you have to go to the permit process to get a non-jurisdiction letter when you are clearly out of the jurisdiction when you go to the Building Department. COUNCILMAN KRUPSKI: It is not really a permit, though. It is just a letter. MS. RIVERA: Yeah. but you have to make the application fees and go through the process and still get a letter of non-jurisdiction, when you are clearly not in their jurisdiction to begin with when you go to the Building Department. But if you are anywhere near the water or the wetlands, even though you are out of their jurisdiction, they still make you go to the Trustees and get the letter. COUNCILMAN KRUPSKI: And what is the fee? What is the fee? MS. RIVERA: I don't know what the fee is, it has been a while since I had one. Maybe one of the Trustees can answer that. COUNCILMAN KRUPSKI: It can't be a full, maybe they can clarify that. MS. RIVERA: Whatever it is, it doesn't make any sense. MR. KING: I missed the question. SUPERVISOR RUSSELL: A fee, is there a fee attached to you writing a letter of non- jurisdiction? MR. KING: None whatsoever. SUPERVISOR RUSSELL: None whatsoever. NJ, right? MS. RIVERA: But you have to go through the process of getting a non-jurisdiction letter, when you are not in their jurisdiction. COUNCILMAN KRUPSKI: But it doesn't require a permit process, it requires usually, maybe a site inspection. JILL DOHERTY: Can Ijust clarify the non-jurisdiction? Chapter 275 Revisions. December 4, 2007 COUNCILMAN KRUPSKI: Please. . 51 MS. DOHERTY: We had, for example today, when I was in the office Lauren asked me; the Building Department said oh, no, they reviewed something and said you need a non- jurisdiction letter from the Trustees. So it came over to the Trustees, it is 105 feet away, our jurisdiction is 100 feet, it is 105 feet away from where that person thinks the wetland line is, so what we have to do is we have to go out and determine where the wetland line is. They might think it is the high water mark, where it is not, it is up above the high marsh, so now that becomes 75 feet away, not 105. So it is in our jurisdiction. So our Board is the one that determines the jurisdiction. And in some cases, it is not a non- jurisdiction like the Building Department said. So the Building Department should be sending you to us, so we can decide whether it is in our jurisdiction or not. And we have to go out and look at the property. Because a surveyor can write tie line, can write something and that, and then measure from that but that is not where we measure from. MS. RIVERA: For example, on the sound, where do you measure from? The high tide mark. MS. DOHERTY: Not necessarily. SUPERVISOR RUSSELL: Again, since there is nothing specific in here, to clarify those specific questions... COUNCILMAN KRUPSKI: You can call the Trustee office tomorrow and get clarification on that. MS. RIVERA: Okay. SUPERVISOR RUSSELL: Would anybody like to address the Town Board on this specific legislation? JOHN BETSCH: As the last person here, just a minor point, John Betsch, Southold. One of the words that are in this new code, the changes, says as determined by the Trustees. I think everybody has to remember that there are five Trustees, there are five different distinct personalities and five different distinct point of view. Many times, I believe, when they do site visits, it is either one or two people; when they go to a site. It is not always all five. SUPERVISOR RUSSELL: Almost every time, at least four, if I am not mistaken. I thought all five of you go to just about everything. MR. BETSCH: Okay, that is my mistake. Because I was going to say... SUPERVISOR RUSSELL: No, no. Chapter 275 Revisions. December 4, 2007 MR. KING: About the only times that not all of us go is when it is something really very simple. . 52 SUPERVISOR RUSSELL: Okay. MR. KING: Sometimes we will send one Trustee out, he may think, well, I would have the rest of the Board's opinion and then we all go look at it. So, one or two go to very simple ones, we all go to anything that is any kind of... MR. BETSCH: That was my only point. The fact that depending on potentially who it is, who you get may derive you know, what the decision is. That was all. SUPERVISOR RUSSELL: Okay. Thank you, John. Would anybody else like to address the Town Board on this specific legislation? UNIDENTIFIED: (Inaudible comments made from audience) from Peconic Bay in Laurel. I actually live next door to a gentleman who lost his bulkhead in the nor'easter in April because it took him 18 months for him to get a permit to repair it. Because first it was this organization and a (inaudible). Yesterday, two Town Trustees came to look at his bulkhead and there were two of them. Eighteen months of aggravation with the Town, untold expense and only two people come. I think it is a well taken point that it depends on which two you get. MR. KING: I think you are mistaken because no Trustees were out yesterday making inspections. I was here in Town Hall and there were and there were two people from DEC that were in Southold making inspections. Karen Gralick and the other gentleman... UNIDENTIFIED: I don't know who they were. MR. KING: I would say that you probably have mistaken DEC personnel for Trustees because no Trustees were out yesterday. SUPERVISOR RUSSELL: Okay. I would like to get a motion to close the hearing. * * * * * ~o.n~/4 Elizabeth A. Neville Southold Town Clerk . Southold Town Board - Letter . JZL~ Board Meetin;'l;fDecember 18,2007 RESOLUTION 2007-933 ADOPTED Item # DOC ID: 3359 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-933 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON DECEMBER 18, 2007: WHEREAS there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 9th day of October, 2007 and the 7th day of November, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chanter 275 (Wetlands & Shoreline)" and be it further WHEREAS that the Town Board of the Town of Southold held a public hearing on the aforesaid Local Law at which time all interested persons were given an opportunity to be heard, now therefore be it RESOLVED that the Town Board of the Town of South old hereby ENACTS the proposed Local Law entitled, "A Local Law in relation to Amendments to Chanter 275 (Wetlands & Shoreline)" reads as follows: LOCAL LAW NO. 23 of 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chanter 275 (Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of South old, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of South old is hereby amended as follows: Generated December 27, 2007 Page 6 Southold Town Board - L.r Board Ang of December 18, 2007 {i275-2. Definitions; word usage. ACCESS PATH -- an area. cleared by hand or hand-held equipment, no more than 4 feet wide. left in its natural state and devoid of anv manmade structure. to provide a walkwav to a bodv of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eatwalks." FUNCTIONAL - Anv structure that has essentiallv retained its purpose and use within the 24 months preceding the operations or activities at issue. as determined bv the Board of Trustees. NONDISTURBANCE BUFFER - Aft- A vegetated area, typieally 59 feet wiae a minimum of 30 feet wide or as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities ean mav take place. except that manmade debris mav be removed from such area bv hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any eatwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. {i275-4. Exceptions. A. The provisions of this chapter shall not affeet or prollibit nor require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction provided thev are limited to the use of non- invasive native species of vegetation. Re-grading and removal oftrees are not considered such ordinary and usual operations.. lanawara of tile wetlana bOlffiaary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted eJdsting a functional building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. for which structure a wetland permit has been issued bv the Town. (10) Installation of new or replacement windows. roof shingles. doors. dormers and siding on existing structures onlv. (II) Notwithstanding the above listed exceptions. operations within a designated non-disturbance buffer are prohibited. Generated December 27,2007 Page 7 . Southold Town Board - Letter Board M!ng of December 18, 2007 B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. ~275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review, in accordance with the standards set forth in &275-11: (j) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities operations shall require the addition of a nonturf pervious buffer area. flOt to elleeed 20 feet wiae ae defined in ~275 2. m Minor restoration or alterations oflandscaping, (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet or greater from wetlands in an existing, established vard area when more appropriate upland placement is not possible. Installation or burial of a propane tank less than 25 feet from wetlands is prohibited. (p) Dredging work necessitated by the accumulation of silt from run- off or other circumstances not the result of activitv by or on behalf of the owner of the propertv. ~275-7. Fees. F. Dredging Fee. Every application for a permit for dredging within Town-owned underwater lands shall include a fee as set by the Town Board based on the amount of cubic yard of dredge spoil to be removed. ~275-10. Contents of permit. L. A statement that "The permittee is reCluired to conspicuously post the permit and have the supporting Trustees' stamped plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." ~275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In geHer~l, [cnees are prohibited from beaehes and wetland areas. Trustees reserve the right to permit erection of a fence where the applicant has shown that there is a need to protect hislher private property. In these rare cases, only split-rail fences are allowed on beaches and wetlands. Generated December 27, 2007 Page 8 Southold Town Board - L.r Board Aing of December 18, 2007 Such fences shall be perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet offence is allowed. Posted signs shall be no larger than 12 inches by 12 inches square. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence. barricade or impediment shall be removed bv the owner within 30 days of the date of the notice. Upon failure to comply with such notice. the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector. Code Enforcement Officer or Bav Constable to create a hazard to the health. safety or welfare of the public. such structure may be removed and disposed ofbv the Town without prior notice to the owner. Upon removal bv the Town. all costs and expenses incurred bv the Town for the removal of such fence, barricade or impediment shall be the responsibility of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal, including filing a statement with the Town Assessors. identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors. in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levy against such property, shall constitute a lien and shall be collected and enforced in the same manner, bv the same proceedings, at the same time and under the same penalty as is provided bv law for the collection and enforcement of real property taxes in the Town of Southold. (22 Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (I) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), ereasete, penta products, Alkaline Copper Ouat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking Generated December 27, 2007 Page 9 . Southold Town Board - Letter . Board Meetmg of December 18,2007 on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. Anv use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls. stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned M I or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use ofIumber pre-treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), creosote, penta products, Alkaline Copper Ouat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be determiaed at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] Given the unique EIfld soasitive aatura! enviroR/Jlental eharaeteristics described in the ToVl'fl of SOllthold Loeal V/aterfront Revitalization Plan and the New Yor!, State DeflartmeHt of State Significant Habitat descriptions, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek. East of Grand Avenue Generated December 27,2007 Page 10 Southold Town Board - La Board rJaing of December 18,2007 [3] [E1] bridge), Pipe's Cove Creek and West Creek. N a Flaating E1eeks, fleats, deek eemflaneRts, dllek Blinds er Beats shall Be stereEl en tidal wetlanEls, ather iRtertiElal areas ar Freshwater wetlands. (c) Regulations for the placement and configuration of docking facilities. [1] Residential docks. [a] Only one 4eek. catwalk may be permitted per residential lot. Onlv one mooring or dock may be 6f meering is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property. the Trustees may permit both a mooring and a dock for the same residential propertv. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island ifthe need is demonstrated; or of equal square footage as determined bv the Trustees: [i] Residential boatlifts, floating or fixed, are prohibited. except in privatelv owned basins on private property at the discretion of the Board of Trustees. (3) Dredging. (a) Creeks. [I] Onlv maintenance dredging (as defined in 9275-2) eRIy is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation oflow-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 Years. (0 All dredging applications must demonstrate a specific location for the deposit of dredging material. 9275-12 A Standards for Issuance of permit &275-12 B Stop work orders. A. The Bav Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bav Constable or Code Enforcement Officer shall issue a stop work order to halt: Generated December 27, 2007 Page II Southold Town Board - Let . Board Meetmg of December 18, 2007 (1 ) Anv work that is determined bv the Bav Constable or Code Enforcement Officer to be contrarv to anv applicable provision of this Chapter. or: (i) Anv work that is being conducted in a dangerous or unsafe manner in the opinion of the Bav Constable or Code Enforcement Officer. without regard to whether such work is or is not work for which a Trustee permit is required. and without regard to whether a Trustee permit has or has not been issued for such work; or (m Anv work for which a Trustee permit is required which is being performed without the required Trustee permit. or under a Trustee permit that has become invalid. has expired. or has been suspended or revoked. B. Stop work orders shall: (1 ) Be in writing; (2) Be dated and signed bv the Bav Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) If applicable. state the conditions which must be satisfied before work will be permitted to resume. C. The Bav Constable or Code Enforcement Officer shall cause the stop work order. or a copv thereof. to be served on the owner of the affected propertv. and if the owner is not the permit holder. on the permit holder. personallv or bv certified mail to the owner or permit holder and posting at the work site. The Bav Constable or Code Enforcement Officer shall be permitted. but not required. to cause the stop work order. or a copv thereof. to be served on anv or all of the following: builder. architect. tenant. contractor. subcontractor. construction superintendent. or their agents. or anv other person taking part or assisting in work affected bv the stop work order. personallv or bv certified mail and posting; provided. however. that failure to serve anv person listed above shall not affect the efficacv of the stop work order. D. Upon issuance of the stop work order. the owner of the affected propertv. the permit holder and anv other person performing. taking part in or assisting in the work shall immediatelv cease all work which is the subiect of the stop work order. E. The issuance of a stop work order shall not be the exclusive remedv available to address anv event described in this section. and the authoritv to issue a stop work order shall be in addition to. and not in substitution for or limitation of. the right and authoritv to pursue anv other remedv or impose anv other penaltv under anv other applicable local or state law. Generated December 27, 2007 Page 12 Southold Town Board - Le. Board Ang of December 18, 2007 Anv such remedy or penalty may be pursued at any time. whether prior to. at the time of. or after the issuance of a stop work order. 9275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs may shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (l!) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4.000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,00Q $7.500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (Q) Anv person failing to complv with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to &275-10 shall be subiect to a fine of not more than $1.000. (3) Failure to heed a eeaoe and aesist order stop work order. Any person conducting operations in direct contradiction to the terms of a (lease and desist stop work order shall be subject to l! fine of not less than $1,000 and not more than~. $4.000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than ~ $7.500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (i) Failure to comply with a restoration plan. Anv person failing to complv with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guiltv of an offense and subiect to a fine of not less than $1.000 and not more than $4.000. tB@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, Generated December 27, 2007 Page 13 . Southold Town Board - Letter Board M~g of December 18, 2007 such as off-site wetland restoration or creation, may be required. C. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they areJ!..narned!lS defendants in an outstanding or unresolved wetla.a6 yielatieH.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law PR~"UfC7.2~k""I'''. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Albert Krupski Jr., Councilman SECONDER: William P. Edwards, Ceuncilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Generated December 27, 2007 Page 14 . . ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Bouthold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD December 27, 2007 Federal Express Linda Lasch New York State Department of State State Records and Law Bureau 41 State Street Albany, NY 12231 RE: Local Law Number 22@24, 25 of 2007 Town of Southold, Suffolk County Dear Ms. Lasch: In accordance with provisions of Section 27 of the Municipal Home Rule Law, 1 am enclosing herewith certified copies of Local Law Number 22, 23, 24, 25 of 2007 of the Town of Southold, suitable for filing in your office. I would appreciate if you would send me a receipt indicating the filing of the enclosures in your office. Thank you. ' Very truly yours, Lynda M Bohn Southold Deputy Town Clerk Enclosures cc: Town Attorney .' . . NEW YORK STATE DEPARTMENT OF STATE Local Law Filing 41 STATE STREET,ALBANY, NY 12231 (Use this form to file a local law with the Secretary of State,) Text of law should be given as amended. Do not include matter being eliminated and do nol use italics or underlining to indicate new matter. CtHlRt:,' ~ Town of \rillagB SOUTHOLD LOCAL LAW NO. 23 of 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 !Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of Southold as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapler 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplifY the permil process and clarifY activities that may be conducted in protecled areas. II. Chapter 275 of the Code of the Town of Southold is hereby amended as follows: 9275-2. Definitions; word usage. ACCESS PATH -- an area, cleared by hand or hand-held equipment, no more than 4 feet wide, left in its natural state and devoid of any manmade structure, to provide a walkway to a body of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the tenns "wharves," "piers," "fixed docks," "floating docks," or "floats", FUNCTIONAL - Any structure thai has essentially retained its purpose and use within the 24 months preceding the operations or activities at issue, as determined by the Board of Trustees. NONDISTURBANCE BUFFER - A vegetated area, a minimum of 30 feet wide or as designated by the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities may take place, except that manmade debris may be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. (If additional space is needed, attach pages the same size as this sheet, and number each.) DOS-239(Rev.lI/99) . . ~275-4. Exceptions. A. The provisions of this chapter shall not require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' jurisdiction provided they are limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees are not considered such ordinary and usual operations. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a functional building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure, for which structure a wetland permit has been issued by the Town. (10) Installation of new or replacement windows, roof shingles, doors, dormers and siding on existing structures only. (II) Notwithstanding the above listed exceptions, operations within a designated non-disturbance buffer are prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. ~275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review, in accordance with the standards set forth in ~275-11: Q) The reconstruction ofa permitted bulkhead as per ~275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such operations shall require the addition of a nonturf pervious buffer area. (I) Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet or greater from wetlands in an existing, established yard area when more appropriate upland placement is not possible. Installation or burial of a propane tank less than 25 feet from wetlands is prohibited. (p) Dredging work necessitated by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the property. ~275-7. Fees. F. Dredging Fee. Every application for a permit for dredging within Town-owned underwater lands shall include a fee as set by the Town Board based on the amount of cubic yard of dredge spoil to be removed. ~275-IO. Contents of permit. L. A statement that "The permittee is required to conspicuously post the permit and have the supporting Trustees' stamped plans available for immediate inspection at the worksite at the commencement of work until which time the project is completed." ~275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. Trustees reserve the right to permit erection ofa fence where the applicant has shown that there is a need to protect his/her private property. In these rare cases, only split-rail fences are allowed on beaches and wetlands. Such fences shall be perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet offence is allowed. Posted signs shall be no larger than 12 inches by 12 inches square. Any fence, barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence, barricade or impediment is located sent by certified or registered mail. Such fence, barricade or impediment shall be removed by the owner within 30 days of the date of the notice. Upon failure to comply with such notice, the Building Inspector, Code Enforcement Officer or Bay Constable may remove or cause the removal of the illegal structure. If any fence, barricade 2 or impediment is detlined by the Building Inspector, Code Enf_ment Officer or Bay Constable to create a hazard to the health, safety or welfare of the public, such structure may be removed and disposed of by the Town without prior notice to the owner. Upon removal by the Town, all costs and expenses incurred by the Town for the removal of such fence, barricade or impediment shall be the responsibility of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal, including filing a statement with the Town Assessors, identifYing the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors, in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levy against such property, shall constitute a lien and shall be collected and enforced in the same manner, by the same proceedings, at the same time and under the same penalty as is provided by law for the collection and enforcement of real property taxes in the Town of Southold. (9) Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined by the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (I) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"l, penta products, Alkaline Copper Quat (ACQ), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. Any use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls, stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned M I or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lum ber pre-treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQl, penta products, Alkaline Copper Quat (ACQ), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. The use of creosote is prohibited. The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Council or similar organization. Materials used for structural components shall be at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek, East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. (c) Regulations for the placement and configuration of docking facilities. [I] Residential docks. 3 ~275-12 A ~275-12 B C. D. [a] .onlY one catwalk may be permitted per nlentiallot. Only one mooring or dock may be permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined by the Trustees; [i] Residential boatlifts, floating or fixed, are prohibited, except in privately owned basins on private property at the discretion of the Board of Trustees. (3) Dredging. (a) Creeks. [1] Only maintenance dredging (as defined in ~275-2) is permitted, unless the applicant owns underwater land or the applicant is requesting perm ission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (c) All dredging applications must demonstrate a specific location for the deposit of dredging material. Standards for Issuance of permit Stop work orders. A. The Bay Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bay Constable or Code Enforcement Officer shall issue a stop work order to halt: (1) Any work that is determined by the Bay Constable or Code Enforcement Officer to be contrary to any applicable provision of this Chapter, or: (i) Any work that is being conducted in a dangerous or unsafe manner in the opinion of the Bay Constable or Code Enforcement Officer, without regard to whether such work is or is not work for which a Trustee permit is required, and without regard to whether a Trustee permit has or has not been issued for such work; or (ii) Any work for which a Trustee permit is required which is being performed without the required Trustee permit, or under a Trustee permit that has become invalid, has expired, or has been suspended or revoked. B. Stop work orders shall: (I) Be in writing; (2) Be dated and signed by the Bay Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) Ifapplicable, state the conditions which must be satisfied before work will be permitted to resume. The Bay Constable or Code Enforcement Officer shall cause the stop work order, or a copy thereof, to be served on the owner of the affected property, and if the owner is not the permit holder, on the permit holder, personally or by certified mail to the owner or permit holder and posting at the work site. The Bay Constable or Code Enforcement Officer shall be permitted, but not required, to cause the stop work order, or a copy thereof, to be served on any or all of the following: builder, architect, tenant, contractor, subcontractor, construction superintendent, or their agents, or any other person taking part or assisting in work affected by the stop work order, personally or by certified mail and posting; provided, however, that failure to serve any person listed above shall not affect the efficacy of the stop work order. Upon issuance of the stop work order, the owner of the affected property, the permit holder and any other person performing, taking part in or assisting in the work shall immediately cease all work which is the 4 subject of the stop wi order. . E. The issuance of a stop work order shall not be the exclusive remedy available to address any event described in this section, and the authority to issue a stop work order shall be in addition to, and not in substitution for or limitation of, the right and authority to pursue any other remedy or impose any other penalty under any other applicable local or state law. Any such remedy or penalty may be pursued at any time, whether prior to, at the time of, or after the issuance of a stop work order. ~275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs may sfta!l constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms ofa permit shall be subject to a fine of not less than $500 and not more than $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to ~275-1 0 shall be subject to a fine of not more than $1,000. (3) Failure to heed a stop work order. Any person conducting operations in direct contradiction to the terms of a stop work order shall be subject to a fine of not less than $1,000 and not more than $4,000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall speciry a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to comply with a restoration plan. Any person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period oftime for completion shall be guilty of an offense and subject to a fine of not less than $1,000 and not more than $4,000. (6) Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are a named defendant in an outstanding or unresolved violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY Ifany clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law 5 , (Complete the certifilon in the paragraph that applies to the fili'fthiS local law and strike out that which is not applicable.) '. . 1. (Final adoption by local legislative body only.) I hereby certifY that the local law annexed hereto, designated as local law No. 23 of20 07 . of the (ba~1I1;Y)(bi~ )(Town) ('.'ilIige) of SOUTHOLD was duly passed by the TOWN BOARD on December 18 .2007, in accordance with the applicable provisions of law. 2. (Passage by local legislative body with approval, no disapproval or repassage after disapproval by the Elective Chief Executive Officer'.) I hereby certifY that the local law annexed hereto, designated as local law No. ofthe (County)(City)(Town)(VilIage) of on disapproval) by the in accordance with the applicable provisions oflaw. of 20_ was duly passed by the 20 _, and was (approved)(not approved)(repassed after and was deemed duly adopted on 20_ 3. (Final adoption by referendum.) I hereby certifY that the local law annexed hereto, designated as local law No. of 20 of the (County)(City)(Town)(Village) of was duly passed by the on 20_, and was (approved)(not approvedXrepassed after disapproval) by the on 20. Such local law was submitted to the people by reason ofa (mandatory)(permissive) referendum, and received the affirmative vote ofa majority of the qualified electors voting thereon at the (general)(special)(annual) election held on 20 , In accordance with the applicable provisions of law. 4. (Subject to permissive referendum and final adoption because no valid petition was filed requesting referendum.) I hereby certifY that the local law annexed hereto, designated as local law No. (County)( City )(T own )(Village) of 20 of the of was duly passed by the on 20, and was (approvedXnot approved) (repassed after disapproval) by the on 20 Such local law was subject to permissive referendum and no valid petition requesting such referendum was filed as of 20_ , in accordance with the applicable provisions of law. , Elective Chief Executive Officer means or Includes the chief executive officer of a county elected on a county- wide basis or, If there be none, the chairperson of the county legislative body, the mayor of a city or village, or the supervisor of a town where such officer is vested with the power to approve or veto local laws or ordinances. 6 " . \ ' . . 5. (City local law concerning Charter revision proposed by petition.) I hereby certify that the local law annexed hereto. designated as local law No. of 20 _ ofthe City of having been submitted to referendum pursuant to the provisions of section (36)(37) of the Municipal Home Rule Law, and having received the affirmative vote of a mljjority of the qualified electors of such city voting thereon at the (special)(general) election held on 20 _, became operative. 6. (County local law concerning adoption of Charter.) I hereby certify that the local law annexed hereto, designated as local law No of20 of the County of State of New York, having been submitted to the electors at the General Election of November 20_, pursuant to subdivisions 5 and 7 of section 33 of the Municipal Home Rule Law, and having received the affirmative vote of a m1\iority of the qualified electors of the cities of said county as a unit and a majority ofthe qualified electors of the towns of said county considered as a unit voting at said general election, became operative. (If any other authorized form of final adoption has been followed, please provide an appropriate certification.) I further certify that I have compared the preceding local law with the original on file in this office and that the same is a correct transcript therefrom and of the whole of such original local law , and was finally adopted in the manner indicated in paragraph 1 , above. (Seal) ~Q.~ Clerk of the County legislative body. City. Town or Village Clerk or officer designated by local legislative body Elizabeth A. Neville, Town Clerk Date: December 26, 2007 (Certification to be executed by County Attorney, Corporation Counsel, Town Attorney, Village Attorney or other authorized attorney of locality.) STATE OF NEW YORK COUNTY OF SUFFOLK I, the undersigned, hereby certify that the foregoing local have been had or taken for the enactment of the local la orrect ext and that all proper proceedings C fHlfttj ~ Town of '.'illagil Date: SOUTHOLD Decem ber 26, 2007 7 . . Southold Town Board - Letter . Board Meeting of December 18, 2007 RESOLUTION 2007-933 ADOPTED Item # DOC ID: 3359 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-933 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON DECEMBER 18,2007: WHEREAS there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 9th day of October, 2007 and the 7th day of November, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" and be it further WHEREAS that the Town Board of the Town of Southold held a public hearing on the aforesaid Local Law at which time all interested persons were given an opportunity to be heard, now therefore be it RESOLVED that the Town Board of the Town of Southold hereby ENACTS the proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" reads as follows: LOCAL LAW NO. 23 of 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of Southold is hereby amended as follows: Generated December 27,2007 Page 6 Southold Town Board. Le. Board rvaing of December 18, 2007 9275.2. Definitions; word usage. ACCESS PATH -- an area. cleared by hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of anv manmade structure. to provide a walkwav to a bodv of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eatwalks." FUNCTIONAL - Anv structure that has essentiallv retained its purpose and use within the 24 months preceding the operations or activities at issue. as determined bv the Board of Trustees. NONDlSTURBANCE BUFFER - An- A vegetated area, typically 50 f-cet wiee a minimum of 30 feet wide or as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities eaa mav take place. except that manmade debris may be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any eat'.'Ylllk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. 9275-4. Exceptions. A. The provisions ofthis chapter shall not effeet Elf prohibit nor require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction provided thev are limited to the use of non- invasive native species of vegetation. Re-grading and removal of trees are not considered such ordinary and usual operations.. landward oftlle wetland eOllneary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of e presently permittee e)(isting a functional building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. for which structure a wetland permit has been issued bv the Town. (10) Installation of new or replacement windows. roof shingles. doors. dormers and siding on existing structures onlv. (II) Notwithstanding the above listed exceptions. operations within a designated non-disturbance buffer are prohibited. Generated December 27,2007 Page 7 . Southold Town Board - Letter . Board Meeting of December 18, 2007 B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review, in accordance with the standards set forth in &275-11: (j) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such aotivitieG operations shall require the addition of a nonturf pervious buffer area. Hot to eJweea 20 f-eet wide aG defined in ~275 2. m Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet or greater from wetlands in an existing, established vard area when more appropriate upland placement is not possible. Installation or burial of a propane tank less than 25 feet from wetlands is prohibited. (p) Dredging work necessitated bv the accumulation of silt from run- off or other circumstances not the result of activitv by or on behalf of the owner of the propertv. 9275-7. Fees. F. Dredging Fee. Everv application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic vard of dredge spoil to be removed. 9275-10. Contents of permit. L. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting Trustees' stamped plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed. " 9275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fonoes are prohibited from beaches and wetland areas. Trustees reserve the right to permit erection of a fence where the applicant has shown that there is a need to protect his/her private property. In these rare cases, only split-rail fences are allowed on beaches and wetlands. Generated December 27, 2007 Page 8 Southold Town Board - Le. Board ~ng of December 18,2007 Such fences shall be perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet of fence is allowed. Posted signs shall be no larger than 12 inches by 12 inches square. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation ofthe provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence. barricade or impediment shall be removed bv the owner within 30 days of the date of the notice. Upon failure to comply with such notice. the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector. Code Enforcement Officer or Bav Constable to create a hazard to the health. safety or welfare of the public. such structure may be removed and disposed of bv the Town without prior notice to the owner. Upon removal bv the Town. all costs and expenses incurred bv the Town for the removal of such fence. barricade or impediment shall be the responsibility of the owner. The Town mav pursue any and all remedies available at law to recover any unpaid costs associated with removal. including filing a statement with the Town Assessors. identifying the propertv in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors. in preparation of the next assessment roll. shall assess such amount upon such property. Such amount shall be included in the levy against such property. shall constitute a lien and shall be collected and enforced in the same manner. bv the same proceedings. at the same time and under the same penalty as is provided bv law for the collection and enforcement of real property taxes in the Town of Southold. f2} Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned Ml or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with any preservative. including but not limited to chromated copper arsenate (also known as "CCA"), ereesote, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking Generated December 27,2007 Page 9 . Southold Town Board - Letter . Board Meeting of December 18, 2007 on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined bv the Trustees. Any use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls. stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned M I or M2 may be given greater flexibility in these requirements given the water-dependent nature 0 f their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), ereosote, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be aetermiHea at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] GiveH the llRittlle ami seHsitive Hatural eHvironrneHtal eilaraeteristies aeseriIJed iH the ToWfl of Soathold Loeal \llaterfroHt Re,..italizatioH Plan aHd the New York State DepartmeHt of State SigHifieaHt Habitat deseriptioHs, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek. East of Grand Avenue Generated December 27,2007 Page 10 Southold Town Board - Let (3) 9275-12 A &275-12 B A. Board Mlng of December 18, 2007 [3] [a] bridge), Pipe's Cove Creek and West Creek. !'Ie f1eatillg deeks, fleats, deek eempellellts, Effiek elillas er beats sballbe steFed ell tidal '.vetlallas, ether illtertidal. areas er Hesby;ater wetlallas. (c) Regulations for the placement and configuration of docking facilities. [I] Residential docks. [a] Only one deeIf. catwalk may be permitted per residential lot. Onlv one mooring or dock may be eF meering is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property. the Trustees may permit both a mooring and a dock for the same residential propertv. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees; [i] Residential boatlifts, floating or fixed, are prohibited. except in privatelv owned basins on private property at the discretion of the Board of Trustees. Dredging. (a) Creeks. [I] Onlv maintenance dredging (as defined in 9275-2) eflly is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (Q) All dredging applications must demonstrate a specific location for the deposit of dredging material. Standards for Issuance of permit Stop work orders. The Bav Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bav Constable or Code Enforcement Officer shall issue a stop work order to halt: Generated December 27, 2007 Page II . Southold Town Board - Letter . Board Meeting of December 18, 2007 (I) Any work that is determined by the Bay Constable or Code Enforcement Officer to be contrary to any applicable proyision of this Chapter. or: (i) Any work that is being conducted in a dangerous or unsafe manner in the opinion of the Bay Constable or Code Enforcement Officer. without regard to whether such work is or is not work for which a Trustee permit is required. and without regard to whether a Trustee permit has or has not been issued for such work; or (ij) Any work for which a Trustee permit is required which is being performed without the required Trustee permit. or under a Trustee permit that has become inyalid. has expired. or has been suspended or reyoked. B. Stop work orders shall: (I) Be in writing; (2) Be dated and signed by the Bay Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) If applicable. state the conditions which must be satisfied before work will be permitted to resume. C. The Bay Constable or Code Enforcement Officer shall cause the stop work order. or a COPy thereof. to be served on the owner of the affected property. and if the owner is not the permit holder. on the permit holder. personally or by certified mail to the owner or permit holder and posting at the work site. The Bay Constable or Code Enforcement Officer shall be permitted, but not required. to cause the stop work order. or a COpy thereof. to be served on any or all of the following: builder. architect. tenant. contractor. subcontractor. construction superintendent. or their agents. or any other person taking part or assisting in work affected by the stop work order. personally or by certified mail and posting: proyided. howeyer. that failure to serve any person listed aboye shall not affect the efficacy of the stop work order. D. Upon issuance of the stop work order. the owner of the affected property. the permit holder and any other person performing. taking part in or assisting in the work shall immediately cease all work which is the subiect of the stop work order. E. The issuance of a stop work order shall not be the exclusiye remedy ayailable to address any eyent described in this section. and the authority to issue a stop work order shall be in addition to. and not in substitution for or limitation of. the right and authority to pursue any other remedy or impose any other penalty under any other applicable local or state law. Generated December 27,2007 Page 12 Southold Town Board - Lei Board Mlng of December 18,2007 Any such remedy or penalty may be pursued at any time. whether prior to, at the time of, or after the issuance of a stop work order. 9275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the proyisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such yiolation occurs may shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (i!) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1 ,QQO. $4,000 For each subsequent offense, the yiolator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7.500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (12) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be ayailable for immediate inspection pursuant to &275-10 shall be subiect to a fine of not more than $1.000. (3) Failure to heed a eease and desist order stop work order. Any person conducting operations in direct contradiction to the terms of a eeaGe EIIld desist stop work order shall be subject to i! fine of not less than $1,000 and not more than $;WOO. $4,000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $;WOO $7.500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (2) Failure to comply with a restoration plan. Any person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $ 1.000 and not more than $4,000. ~@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, Generated December 27, 2007 Page 13 . Southold Town Board - Letter . Board Meeting of December 18, 2007 such as off-site wetland restoration or creation, may be required. C. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are1!..named as defendants in an outstanding or unresolved wetlalld '/ielatiBH.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law aa,.~a2:f-'~' Elizabeth A. Neville South old Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Albert Krupski Jr., Councilman SECONDER: William P. Edwards, Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Generated December 27,2007 Page 14 . Southold Town Board - Letter ~' " . \,..LJl,. Board Meetin of December 4,2007 RESOLUTION 2007-928 ADOPTED Item # DOC ID: 3354 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-928 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON DECEMBER 4, 2007: RESOLVED that the Town Board of the Town of South old hereby finds that the proposed "A Local Law in relation to Amendments to Chapter 275" is classified as an Unlisted Action pursuant to SEQRA Rules and Regulations, 6 NYCRR Section 617, and that the Town Board of the Town of Southold hereby establishes itself as lead agency for the uncoordinated review of this action and issues a Negative Declaration for the action in accordance with the recommendation of Mark Terry dated November 30, 2007, and authorizes Supervisor Scott A Russell to sign the short form EAF in accordance therewith, ett/.~CI.-q..-;u.. Elizabeth A, Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Louisa P. Evans, Justice SECONDER: Thomas H. Wickham, Councilman AYES: Krupski Jr" Edwards, Ross, Wickham, Evans, Russell Generated December 18, 2007 Page 31 LORI M. HULSE ASSISTANT TOWN ATTORNEY lori.hulse@town.southold.ny.us . SCOT!' A. RUSSELL Supervisor PATRICIA A. FINNEGAN . TOWN ATTORNEY patricia.finnegan@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran@town.southold.ny.us Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD MEMORANDUM To: Ms. Elizabeth A. Neville, Town Clerk From: Lynne Krauza Secretary to the Town Attorney Date: December 13, 2007 Subject: Local Law/ Amendments to Chapter 275 For your records, I am enclosing the original, fully executed Short Environmental Assessment Form in connection with the referenced matter. We have retained a copy of this document in our file. Also attached is a copy of the resolution authorizing Scott to sign this document. If you have any questions, please do not hesitate to call me. Thank you for your attention. Ilk Enclosures cc: Members of the Town Board (w/encls.) Mr. Mark Terry, Acting Department Head, Planning Dept. (w/encls.) Patricia A. Finnegan, Esq., Town Attorney (w/encls.) 617.20 Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only . . ORIGINAL PART I - PROJECT INFORMATION ITo be completed bv A IPlicant or Project Sponsor) 1. APPLICANT/SPONSOR 2. PROJECT NAME Town of Southold "A Local Law in relation to Amendments to Chapter 275" 3. PROJECT LOCATION: Municipality Town of Southold County Suffolk 4. PRECISE LOCATION (Street address and road intersections, prominent landmarks, etc., or provide map) P.O. Box 1179 53095 Main road Southold, New York 5. PROPOSED ACTION IS: DNew D Expansion o Modification/alteration 6. DESCRIBE PROJECT BRIEFLY: "A Local Law in relation to Amendments to Chapter 275" 7. AMOUNT OF LAND AFFECTED: NA Initially N1\ acres Ultimately acres 8. WILL PROPOSED ACTION COMPLY WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? [l] Yes D No If No, describe briefly 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? D Residential D Industrial D Commercial D Agriculture D ParklForesUOpen Space [l] Other Describe: 10. DOES ACTION INVOLVE A PERMIT APPROVAL, OR FUNDING. NOW OR UL TIMATEL Y FROM ANY OTHER GOVERNMENTAL AGENCY (FEDERAL. STATE OR LOCAL)? DYes [Z] No If Yes, list agency(s) name and permit/approvals: 11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL ? DYes DNo If Yes, list agency(s) name and permit/approvals: NA 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODIFICATION? DYes [{] No I CERTIFY THAT THE INF07ATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE ApplicanUsponsor name: Scott Russell '" Date: 11/30/07 Signature: ,A~(? ~ ,.h~_ If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with tl1is assessment OVER 1 . PART II - IMPACT ASSESSMENT T A. DOES ACTION EXCEED ANY TYPE I THRE DYes [{] No B. WILL ACTION RECEIVE COORDINATED REVIEW AS PROVIDED FOR UNLISTED ACTIONS IN 6 NYCRR, PART 617.67 If No, a negative declaration may be superseded by another involved agency. DYes [{] No C. COULD ACTION RESULT IN ANY ADVERSE EFFECTS ASSOCIATED WITH THE FOLLOWING: (Answers may be handwritten, if legible) C1. Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic pattern, solid waste production or disposal, potential for erosion, drainage or flooding problems? Explain briefly: None C2. Aesthetic, agricultural, archaeological, historic, or other natural or cultural resources; or community or neighborhood character? Explain briefly: None C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species? Explain briefly: None C4. A community's existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources? Explain briefly: None C5. Growth, subsequent development, or related activities likely to be induced by the proposed action? Explain briefly: None C6. Long term, short term, cumulative, or other effects not identified in C1-C5? Explain briefly: None C7. Other impacts (including changes in use of either quantity or type of energy)? Explain briefly: None D. WILL THE PROJECT HAVE AN IMPACT ON THE ENVIRONMENTAL CHARACTERISTICS THAT CAUSED THE ESTABLISHMENT OF A CRITICAL ENVIRONMENTAL AREA (CEA)7 DYes [Z] No If Yes, explain briefly: E. IS THERE, OR IS THERE LIKELY TO BE, CONTROVERSY RELATED TO POTENTIAL ADVERSE ENVIRONMENTAL IMPACTS? DYes [{] No If Yes, explain briefly: PART 111- DETERMINATION OF SIGNIFICANCE (To be completed by Agency) INSTRUCTIONS: For each adverse effect identified above, determine whether it is substantial, large, important or otherwise significant Each effect should be assessed in connection with its (a) setting (I.e. urban or rural); (b) probability of occurring; (c) duration; (d) irreversibility; (e) geographic scope; and (I) magnitude. If necessary, add attachments or reference supporting materials. Ensure that explanations contain sufficient detail to show that all relevant adverse impacts have been identified and adequately addressed. If question D of Part II was checked yes, the determination of significance must evaluate the potential impact ofthe proposed action on the environmental characteristics ofthe CEA o [{] Check this box if you have identified one or more potentially large or significant adverse impacts which MAY occur. Then proceed directly to the FUL EAF and/or prepare a positive declaration. Check this box if you have determined, based on the information and analysis above and any supporting documentation, that the proposed action WIL NOT result in any significant adverse environmental impacts AND provide, on attachments as necessary, the reasons supporting this determination Town of South old 11/30/07 Name of Lead Agency Date Scott Russell Print or Type Name of Responsible Officer in Lead Agency Supervisor Signature of Responsible Officer in Lead Agency . . . ((il ~9 RESOLUTION 2007-928 ADOPTED DOC ill: 3354 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-928 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON DECEMBER 4,2007: RESOLVED that the Town Board of the Town of Southold hereby finds that the proposed "A Local Law in relation to Amendments to Chapter 275" is classified as an Unlisted Action pursuant to SEQRA Rules and Regulations, 6 NYCRR Section 617, and that the Town Board of the Town of Southold hereby establishes itself as lead agency for the uncoordinated review of this action and issues a Negative Declaration for the action in accordance with the recommendation of Mark Terry dated November 30,2007, and authorizes Supervisor Scott A. Russell to sign the short form EAF in accordance therewith. ..c:&j,oJ ~CI."Qev'{"" Elizabeth A. Neville South old Town Clerk RESULT: ADOPTED [UNANIMOUS) MOVER: William P. Edwards, Councilman SECONDER: Albert Krupski Jr., Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell . . GARY MANGUS ARCHITECT 121 STERLING PLACE 48 BROOKLYN, NEW YORK 11217 December 4, 2007 Mr. Scott Russell Town Board Town of South old PO Box 1179 Southold NY 11971 ~JalJ UMol P/OqlnoS LOOZ j7 - J30 Dear Mr. Russell, 03^13:m I live at 1295 Island View Lane, in Greenport, and am writing in regard to the proposed changes to Local Law 275. My residence is on a creek and within 30' of the wetlands. I am very concerned with protecting our wetlands and our natural environment. I began applications for work on my residence four years ago. The application is still in DEC and the approvals received from DEP have now long expired. Though environmental control aspects of my proposal have evolved, due to the slow approval process and the number of different agencies from which approvals are required, I will have to re-apply for essentially the same work previously approved. With the proposed local law changes my proposed work would most likely not be possible. And, this laborious and expensive process would be required to even maintain my current property. Our residence at just over 700 SF is too small for our needs in order for my wife and me to live in Greenport full time. This proposed Local Law change could restrict us from living here. I am an NYS licensed architect practicing out of Brooklyn NY, primarily in the NYC area. Our Greenport residence was built in 1947 and includes virtually no run-off controls and an old septic system deeper than it should be given the ground water table. My proposal to rebuild on the same footprint and away from the wetlands includes an extensive green roof for the entire house footprint. This would control more then 85% of vertical rainfall through plant respiration and evaporation, and for the remaining 15% that is released to be detained and released slowly for irrigation. A perimeter collection system is proposed to collect horizontal wind driven rain and divert it to dry wells for slow release. Both runoff volume and temperature changes to run-off back to the wetlands are controlled. A new conforming septic system is proposed. The foundation is changed from a perimeter foundation to pile type making the land below the house available for absorption. The green roof will control for ambient outdoor air temperature increases as well. With this range of control measures there is actually more absorb son and run-off control then if the land were not built on. What was my response from DEC? They told me they are not concerned with abatement, and do not care about mediation measures or run-off control, they just do not want to allow any development. GAR Y . MAN GUS@VER I Z 0 N. NET FAX 718.398.5687 PHONE 718.398.2348 . . . GARY MANGUS ARCHITECT 121 STERLING PLACE 4B BROOKLYN, NEW YORK 11217 The permit process for current residents in or near wetlands is already excessively costly, lengthy, and restrictive. Measures, which would make a difference, are not even considered, while excessively restrictive regulations that provide little actual benefit are being put into law. The changes currently being proposed will make it excessively difficult for me to even maintain my property let alone make it more environmentally friendly. We need to foster a more symbiotic relationship with our wetlands and our environment in general. We need to learn to live appropriately in our environment. Legislation needs to be more flexible and change friendly. We are currently unnecessarily restricting or severely discouraging change. We need to encourage not discourage environmentally friendly changes if we want to make a difference in saving out wetlands. We strongly support the position SoutholdVoice is taking in opposition to the proposed changes to Local Law 275. Sincerely, Gary Mangus GAR Y . MAN GU5@VER I Z 0 N. NET FAX 718.398.5687 PHONE 718.398.2348 . . :PJlGj;~ KENNETH L. EDWARDS MARTIN H. SIDOR GEORGE D, SOLOMON JOSEPE L. TOWNSEND P.O. Box 1179 SouthoJd. NY 11971 PLANNING BOARD MEMBERS JERILYN B. WOODHOUSE Chair OFFICE WCATION: Town Hall .Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) SouthoJd, NY Telephone: 631 765-1938 Fax: 631 765-3136 PLANNING BOARD OFFICE TOWN OF SOUTHOLD MEMORANDUM To: Town of South old Town Board Patricia Finnegan, Town Attorney ./ Mark Terry, Principal Planner \f7 L WRP Coordinator From: Date: December 4, 2007 Re: "A Local Law in relation to Shellfish and Other Marine Resources" As requested, I have re-assessed the proposed amendments to "A Local Law in relation to Shellfish and Other Marine Resources" to the State Environmental Quality Review Short Environmental Assessment Form (SEAF) prepared for the action on August 14,2007. The recent amendments are not significant and therefore revisions to the SEAF are not necessary and the recommended determination of significance stands. I 'd S09 'ON ~~LO: I I LOO~ 't 'J30 .-" . . PH 135 . OFFICE WCATION: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold, NY MAILING ADDRESS: P.O. Box 1179 : Southold, NY 11971 Telephone: 631 765-1938 Fax: 631 765-3136 LOCAL WATERFRONT REVITALIZATION PROGRAM COORDINATOR TOWN OF SOUTHOLD MEMORANDUM Town of Southold Town Board '/ Patricia Finnegan, Town Attorney From: Mark Terry, Principal Planner L WRP Coordinator To: Date: December 3, 2007 (revised) Re: "A Local Law in relation to Amendments to Chapter 275" The proposed local law has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of South old Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided on the L WRP Consistency Assessment Form submitted to this department as well as the records available to me, it is my determination that the proposed action is CONSISTENT with the Policy Standards and therefore is CONSISTENT with the L WRP provided that the following best management practices and process recommendations are incorporated to further the below policy standards: Bulkheads 9275-5. Permit procedures, B. Administrative permit. (2) The following operations will be considered for administrative review: (j) The reconstruction ofa pennitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition ofa nonturfpervious buffer area. not to exceed 20 feet ',vide as defined in ~275 2. en) Minor alterations to existing permitted shoreline structures including .... . . stairs, bulkheads and docks. To clarify the intent of the administrative permit process, and assist applicants in the preparation of site plans; it is recommended that ~275-5.,B (2) G) [3] declare a minimum buffer width to protect the adjacent natural feature. This recommendation supports and furthers Policy 6.3. Protect and restore tidal a freshwater wetlands and sub-policy 6.3.D (below). 6.3 Protect and restore tidal and freshwater wetlands. D. Provide adequate buffers between wetlands and adjacent or nearby uses and activities in order to ensure protection of the wetland's character, quality, values, and functions. The adequacy of the buffer depends on the following factors: 1. Potential for adverse effects associated with the use. Uses such as those involving hazardous materials, on-site sewage disposal, or mineral extraction have high potential for adverse effects and may require substantial buffer. 2. The nature and importance of the wetland and its benefits. Substantial buffers may be necessary to avoid adverse effects from adjacent or nearby uses based on the nature of the land use and the characteristics of the affected wetland. 3. Direction and flow of surface water between a use and adjacent or nearby wetland. Buffer widths may be reduced in areas where drainage patterns normally do not lead directly to the wetland and where adverse affects on the wetland, other than those due to runoff, are not likely. 4. Buffer width necessarv to achieve a high particulate filtration efficiency of surface runoff as determined by vegetative cover type, soil characteristics, and slope of land. 5. Other management measures or design alternatives to protect wetlands from adverse effects where site constraints do not allow sufficient buffer width. In addition, it is recommended that the term "alterations" in ~275-5., B (2) (n) be defined. The term "alteration" implies change in configuration, scale or design. Consider changing the term "alteration" to "repairs". Dredl!:inl!: Comments on ~275-5., B (2) (P): (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the propertv and in event at the discretion ofthe Board of Trustees. To clarify the intent of this proposed amendments, it is recommended that the following Chapter 275. Wetland and Shoreline, and Section 280.8 Effect of establishment of districts regulations applicable to dredging be referenced by section or specified as conditions of the process. /' . . S 275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (2) Erosion control. Installation of an erosion control structure is necessary during any building, grading, landscaping or site work activity within Trustee jurisdiction. This structure may include, but is not limited to, installation of a silt fence, hay bales, wood chip berm and silt booms. The placement of the erosion control structure(s) shall be determined by the Trustees or their designee. All intertidal construction and excavation requires the installation of a silt boom that will retain all suspended sediments within the immediate project area. (3) Dredging. (a) Creeks. [1] Maintenance dredging (as defined in S 275-2) only is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation oflow-sill bulkheads. [2] Dredging may be permitted when it can be demonstrated that the actions of man have resulted in impairment to water quality or habitat value. [3] Dredging in, or in close proximity to salt marsh vegetation (Distichlis spicata, Spartina alterniflora or Spartina patens) or seagrass (Ruppia mariti a or Zostera marina) meadows is prohibited. (b) Freshwater wetlands. Dredging of freshwater ponds may be permitted when it can be demonstrated that such action will restore the water body to an historic condition, improve water quality or habitat value. S 280-8. Effect of establishment of districts F. Notwithstanding the limitations imposed by any other provisions of this chapter, no building, dredging or filling operation shall be permitted below the datum of mean high water of tidal waters unless such building, dredging or filling operations have been duly authorized and are conducted in conformity with all laws, ordinances, rules and regulations of all governmental agencies having jurisdiction thereof. The recommendations will further Policy 5.3. Protect and enhance quality of coastal waters (below) and Policy 6.3. Protect and restore tidal a freshwater wetlands. Policy 5.3. Protect and enhance quality of coastal waters. 5.3 Protect and enhance quality of coastal waters. A. Protect water quality based on an evaluation of physical factors (pH, dissolved oxygen, dissolved solids, nutrients, odor, color and turbidity), health factors (pathogens, chemical contaminants, and toxicity), and aesthetic factors (oils, floatables, refuse, and suspended solids). .r . . B. Minimize disturbance of streams and creeks including their bed and banks in order to prevent erosion of soil, increased turbidity, and irregular variation in velocity, temperature, and level of water. C. Protect water quality of coastal waters from adverse impacts associated with excavation, fill, dredging, and disposal of dredged material. Pursuant to Chapter 268, the Town Board shall consider this recommendation in preparing its written determination regarding the consistency of the proposed action. Cc: Lori Hulse, Assistant Town Attorney Kieran Corcoran, Assistant Town Attorney i""~"" 17:22 7777777 R PAGE 01 . . FORTHE EAS TEN dECEIVED. F COVER SHEET DEe 1 8 2007. Date.. December 17, 2007 Soulbold Town Clerk 4 PAGES (Incl. cover) Seato: Supervisor Scott Russell and Southold ToWn Soar . Fax :(631)765-1823 .. . Fro: Jennifer Skilbred Cont ct#: (6Jl)537-1400, ext.18 . CO MENTS~ Plea e find enclosed written comments regarding the: Local Law in Relation to Ame dmentstoChapter 275 (Wetlands and Shoreline). . Than You. . . - Jen iter SkiJbred . . Grou forthe East End 2442 Main Street P.O. ox 569 . . . Brid ehampton, NY 11932 Phone: (631) 537-1400, ext. 18 Fax: (631) 537-2201 E-mail: jskilbred@eastendenvironment.or2 Website: www.eastendenvironrnent.org 12/17/2007 17:22 ~G FO Pre.ident Robert 5. DeLuc . Chilinnan Claudia Camozz .~ Vice Chairmen '. John Shea Mary Walker . Board Members Harris A. Barer W MefCo Birch Wilhe1mus B. Bry MarkBurchiJJ .Ann Colley AJ\dri!w Golds . Richard b. Kahn Ronald S. ~uder William S. McCh ney Sandra R Meyer . Christopher Pia John M. Sartorius Peter Schellbach . Alan Siegel . "Ellen So.now John C. Waddell Advisory Commi ee Mrs, James H. Fro ch . Edward Gorman Sherrye Henry Arnold Leo Pete;r.Matthiessen Muriel O. Murph Lionel Pincus John Sargent James Trees Hatold M. Wit 7777777 R PAGE 02 . Post Office Box $9 2442 Main Street Bridgehampton, NY 11932'0569 Tel: 631.537.1400 Fax: 631.537.2201 www.groupforlhee.stend.org December 6, 2007 Supervisar Scatt Russell and . Members .of the Sauthald Tawn Baard 54375 Raute 25 PO Bax 1179 Sauthald, NY 11971 Re: Loc.1 Law in Relation to Amendments to Chapter 275 (Wetlands and Shareline) Dear Supervisor Russell and Members .of the Baard, larn 'NTiting an behalf .of Graul' far the East End ta express .our camnients an the propased amendments ta Chapter 275 Wetlands and Shareline. For the record, Graul' far the East End is a nan-profit environmental advacacy andeducatian arganizatian. We represent the canservatian and cammunity . planning interests .of same 2500 member-hausehalds, businesses, and individuals . residing primarily in the five East End tawns (Sauthamptan, East Hampton, Shelter Island, Riverhead, and Sauthald). Far three and a half decades the Graul' has made a full-time professianal cammitment to the pratectian and preservatlan .of eastern Lang Island's fragile natural resaurces. Over the years, .one .of .our majar priarities has been the protectianofthe Pecanic Estuary, including pramating the creatian afth,e Pecanic Estuary Pragram, advacating far cantinual funding far the pragram ,and its management plan, as well as numeraus ather surface water quality pratectian effa~. It is clear that Sauthald's wetland cade will have an impact an the PecanicEstuary, the Lang Island Saund, and the East End regian as a whale. Oui most significantcamment regarding the current prapased amendments deals' with the siZe .of natural buffers. We feel that the size afthe buffer shauld nat be reduced .or left completely up to Trustee discretian. Based an .our experience and understanding .of the current literature an the subject, we recammend that the minimum buff~ size be increased. The prapased 3D-foot minimum is smaller than research indicates is necessary ta pravide meaningful protectian .of tidal wetlands. Far example, 1;he Lang Island Saund Study's Tidal Wetlands Buffers Guidance Document, makes clear that in .order ta meet the US EP A's remaval gaal .of 80% .of tatalsuspended salids a minimum 100-faat tidal wetlands buffer is necessary. FIG.HTlNG FOR THE QUALITY OF YOUR LIFE lOO'r. pO,...COMWJlU IK}'cled pipe: 12/17/2007 17:22 7777777 R PAGE 03 'G . We would be pleaJIed to provide additional information to the Town in support of . our position if you wish to review it. The concept of completely removing any minimum buffer size will surely w~en the Trustees authority to protect our estuaries. If there is no minimum theywill be forced to arg\.le up from zero feet over and over again with each individual case. The prospect afforcing the Trustees to justify having a buffer at all for each and . .. every application will also invite credible challenges on both sides of the issue and cause an inordinate amount of delay, cost, and disparity within the reView process over time. We doubt any of this can be argued to be in the best overall interest of the community and its long-standing concern for the protection of its natural resources. . In our view, setting a minimum buffer at 100 feet is consistent with the widely- available research on this issue, offers clarity to applicant's about the pptential developmel;lt constraints on their property, expedites the review process, protects .. the ToWn from legal challenge, and provides the Trustees with increased powers .. to protect wetlands habitats throughout the Town. It simultaneously preserv.;:sthe Trustee's ability to relax the standards if there is a rational and defensible reason to do so, without creating a "free for all" atmosphere that invites any applicant to demand a site specific justification for any wetland setback on a piece of property. . The value of enforceable minimum setbacks has been reflected in the requirements of state and local conservation laws for decades for the many . reasons outlined above. The idea of abandoning such precedent at a time when tile general pUblic is increasingly concerned about the importance of protecting the enVironment would be antithetical to the growing need for stringent and equitable . . reSOurce protection throughout our region. In fact, this is a great opportunity for Soutllold ToWn to become a regional leader for natural resource protection, starting with increased minimum vegetated wetland buffers. Minimum vegetated buffer standards currently exist in the wetlands codes of all other East End tOwns, and all of these minimums are greater than 30 feet. The Towns of Riverhead, Shelter Island, and Southampton all have a 75 foot vegetated buffer, while the Town of East Hampton has a 50 foot buffer minimum. Based on. our review of the Town's current wetlands code, the proposed Trustee amendments, the L WRP Coordinating Committee's recomrnend.ations, and the comments of other individuals and organizations at the last public hearing, it has . ~''.<. PUlOt COMl.II'I\U/so-r.. 8Ilmhno Fibers 12/17/2007 17:22 7777777 R PAGE 04 G . ;,..' ~J . become clear that a more comprehensive review of the wetlands code may be necessary. With so many integrated issues now before the Town, we feel that it would be . best to look at all of these issues at once in a comprehensive review rather than in a pieCemeal process. A strong defensible. code will ultimately be the Town's greatest ally in achieving . protection of precious natural resources, as well as the mraI character and quality of life on the North Fork. Thank you for your close consideration of these comments. Please contact me with any questions. .:;;~.~wJ Jennifer Skilbred , ,,' . Environmental Advocate Group for the East End . Cc:. John Sepenoski. Chairman, L WRP Coordinating Council James F. King Jr., President, Southold Town Trustees .\ " 30'~* Post (:on.UPU!'I'/'1J% &rtIbUOJ'libtt8 12/17/2007 17:37 7777777 R PAGE 01 . . FOR THE EAST END F X COVER SHEET Da e: December 17,2007 4 PAGES RECE!VED (Incl. cover) Sed to; J olm Seponoski;Chairman, L WRP Co rdinating Council Fa #: (631)765-6145 DEe 1 7 2007 Fr m: Jennifer Skilbred Co t<,!-ct#: (631) 537c1400, ext. 18 C MMENTS: Southolrl Town Clerl Pie. se forward the enclosed written comments regarding the: Local Law in Relation to A . ndments to Chapter 275 (Wetlands and Shoreline), on to the LWRP Coordinating Co ndl. Thank You. Gr up for the East End 2 2 Main Street P. . Box 569 Bri gehampton, NY 11932 Phone: (631) 537-1400, ext. 18 Fa)\;: (631) 537-2201 E-mail: iskilbred@eastendenvironment.org Website: www.eastendellvironment.org 12/11;2001 11:31 cG Pre~ident Robert S. DeLuca Chairman Claudia Camozzi ""-'I.- V.ice Chairmen JClhn Shea Mary Walker Board Members Hauls A. Barer lNMarco Birch Wilhelmus B.Bry n Mark Burchill Ann Colley .A.ndrew Goldst~' Richard D. Kahn Ronald S. Lauder vVillia,rn S. MeChe ney Sandra R Meyer Christopher Pia J OM M. Sartorius Peter Schellbach Ali'l.D Siegel . 'Ellen SOSTIOW john C. Waddell Advisory Commi ee Mrs. James H. Fre ch Edward Gor:ma.n Sherrye,Henry Arnold 'Leo Peter Matthiessen ;vlurie(O. Murph Lionel Pincus lohn Sargent J ames Trees Hrlrold tvl. Wit 7111111 R PAGE 02 . Post Office Box 569 2442 Main Street Bridgehampton, NY 11932-0569 Tel: 631.537.1400 .Fax; 631.5372201 w1'\TW.groupfo.rth€eastend .o:(g December 6, 2007 Supervisor Scott Russell and Members of the Southold Town Board 54375 Route 25 PO Box 11 79 Southold, NY 11971 Re: Local Law in Rl'lation to Aml'ndml'nts to Chapter 275 (Wetlands and Shoreline) Dear Supervisor Russell and Members of the Board, I am wtiting on behalf of Group for the East End to express our comments on the proposed amendments to Chapter 275 Wetlands and Shoreline. . For the record, Group for the East End is a non-profit environmental advocacy . and education organization. We represent the conservation and community planning interests of some 2500 member-households, businesses, and individuals residing primarily in the five East End towns (Southampton, East Hampton, Shelter Island, Riverhead, and Southold). For three and a half decades the Group has made a full-time professional commitment to the protection and preservatlon of eastern Long Island's fragile natural resources. Over the years, one of our major priorities has been the protection of the Peconic Estuary, including promoting the creation of the Peconic Estuary Program, advocating for continual funding for the program and its management plan, as well as numerous other surface water quality protection efforts. It is clear that Southold's wetland code will have an impact on the Peconic Estuary, the Long Island Sound, and the East End region as a whole. Our most significant conunent regarding the current proposed amendments deals' with the size of natural buffers. We feel that the size ofthe buffer should not be reduced or left completely up to Trustee discretion. Based on our experience and understanding of the current literature on the subject, we recommend that the minimum buffer size be increased. The proposed 30-foot minimum is smaller than research indicates is necessary to provide meaningful protection of tidal wetlands. For example, The Long Island Sound Stlldy's Tidal Wetlands Buffers Guidance Document, makes clear that in order to meet the US EP A's removal goal of 80% of total suspended solids a minimum I OO-foot tidal wetlands buffer is necessary. fiGHTING FOil THE QUALITY Of YOUR LIFl! 100% pQsl-C(l\1sum'.:r fecydll:dpll~r 12/17/2007 17:37 7777777 R PAGE 03 G . We would bep1eased to provide additional information to the Town in support of our position if you wish to review it The concept of completely removing any minimum buffer size will surely weaken the Trustees authority to protect our estuaries. If there is no minimum they will be ~m~~~~~~~~~~~~~=. The prospect of forcing the Trustees to justify having a buffer at all for each and every application will also invite credible challenges on both sides ofthe issue and cause an inordinate amount of delay, cost, and disparity within the review process over time. We doubt any ofws can be argued to be in the best overall interest of the community and its long-standing concern for the protection of its natural resources. In our view, setting a minimum buffer at 100 feet is consistent with the widely- available research on this issue, offers clarity to applicant's about the potential development constr/l.ints on their property, expedites the review process, protects the Town from legal challenge, and provides the Trustees with increased powers to protect wetlands habitats throughout the Town. It simultaneously preserves the Trustee's ability to relax the standards if there is a rational and defensible reason to do so, without creating a "free for all" atmosphere that invites any applicant to demand a site specific justification for any wetland setback on a piece of property. The value of enforceable minimum setbacks has been refl",cted in the requirements of state and local conservation laws for decades for the many reasons outlined above. The idea of abandoning such precedent at a tiine when the general public is increasingly concerned about the importance of protecting the environment would be antithetical to the growing need for stringent and equitable resource protection throughout our region. In fact, this is a great opportunity for Southold Town to become a regional leader for natural resource protection, starting with increased minimum vegetated wetland buffers. Minimum vegetated buffer standards currently exist in the wetlands codes of all other East End towns, and all of these minimums are greater than 30 feet. The Towns of River head, Shelter Island, and Southampton all have a 75 foot vegetated buffer, while the Town of East Hampton has a 50 foot buffer minimum. Based on our review of the Town's current wetlands code, the proposed Trustee amendments, the L WRP Coordinating Committee's recommendations, and the comments of other individuals and organizations at the last public hearing, it has 5(1% P~~I c..:~\,lm~r/~o/v s...I),',I;>\'1) Flb~f$ 12/17/2007 17:37 7777777 R PAGE 04 G . '. -'''i become dear that a more comprehensive review of the wetlands code may be necessary . With so many integrated issues now before the Town, we feel that it would be best to look at all of these issues at once in a comprehensive review rather than in a piecemeal process. A strong defensible code will ultimately be the Town's greatest ally in achieving . protection of precious natural resources, as well as the rural character and quality of life on the North Fork. Thank you for your close consideration of these comments. Please contact me with any questions. ~~.~wJ Jennifer Skilbred . Environmental.Advocate Group for the East End Cc: John Sepenoski, Chairman, LWRP Coordinating Council James F. King Jr., President, Southold Town Trustees 50% P""t (\ltl~1J,rr\trI51J% 6amQ{1(J PlbeK$ , . 1645 Meadow Beach Lane Mattituck, NY 11952 (631) 298-1823 i ul ieamper{aJ,earth link. net December 7, 2007 RECEIVED .J:J. e fT'A I! CLC 6 Supervisor Russell Justice Evans Councilmen Ross, Edwards, Wickham and Krupski Town Hall Southold, NY Southol~ Town Clerk Dear Supervisor Russell, Justice Evans, and Town Councilmen: The December 4th public hearing concerning proposed changes to Southold Town Code #275 seemed to suggest that waterfront property owners are more concerned about complicated permit procedures than about the preservation of a healthy waterfront environment. I assure you this is not the case with ALL waterfront property owners. Some of us are not only willing to accept, but actively encourage, any code changes that strengthen and clarify protections to our precious creeks, bays and wetlands. I urge the Town Board to adopt the changes to the Southold Town Code #275 recommended by the Board of Trustees and, down the road, to additional changes suggested by the LWRP Council. Sincerely, Julie Amper LORI M. HULSE ASSISTANT TOWN ATTORNEY lori.hulse@town.southold.ny.us . SCOTT A. RUSSELL Supervisor PATRICIAA. FINNEGAN . . TOWN ATTORNEY patricia.finnegan@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran@town.Bouthold.ny.us Town Hall Annex. 54375 Route 25 P.O. llox 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD MEMORANDUM To: Ms. Ruthanne Woodhull From: Lynne Krauza Secretary to the Town Attorney Date: December 6, 2007 Subject: LUAmendments to Chapter 275/SEQRA I am enclosing an original Short Environmental Assessment Form in connection with the referenced matter. A resolution authorizing Scott to sign this document is also attached hereto. In this regard, kindly have Scott sign this form where indicated and return it to me for handling. Thank you for your attention. If you have any questions, please do not hesitate to call me. Ilk Enclosures cc: Ms. Elizabeth A. Neville, Town Clerk (w/encls.)~ ---------~- . . 617.20 Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART I - PROJECT INFORMATION (To be completed bv A Iplicant or Project Sponsor) 1. APPLICANT/SPONSOR 2. PROJECT NAME Town of Southold "A Local Law in relation to Amendments to Chapter 275" 3. PROJECT LOCATION: Municipality Town of South old County Suffolk 4. PRECISE LOCATION (Street address and road intersections, prominent landmarks, etc., or provide map) P.O. Box 1179 53095 Main road Southold, New York 5. PROPOSED ACTION IS: o New o Expansion o Modification/alteration 6. DESCRIBE PROJECT BRIEFLY: "A Local Law in relation to Amendments to Chapter 275" 7. AMOUNT OF LAND AFFECTED: NA Initially NA acres Ultimately acres 8. WILL PROPOSED ACTION COMPLY WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? o Yes o No If No, describe briefly 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? o Residential o Industrial o Commercial o Agriculture o ParklForesUOpen Space o Olher Describe: 10. DOES ACTION INVOLVE A PERMIT APPROVAL, OR FUNDING, NOW OR UL TIMATEL Y FROM ANY OTHER GOVERNMENTAL AGENCY (FEDERAL, STATE OR LOCAL)? DYes [{]NO If Yes, list agency(s) name and permiUapprovals: 11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL? DYes DNo If Yes, list agency(s) name and permit/approvals: NA 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODI FICA TION? DYes 0No I CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE Applicant/sponsor name: Scott Russell Date: 11/30/07 Signature: If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment OVER 1 PART" - IMPACT ASSESSMENT To A. DQ.ES ACTION EXCEED ANY TYPE I THRES DYes IZJ No B. WILL ACTION RECEIVE COORDINATED REVIEW AS PROVIDED FOR UNLISTED ACTIONS IN 6 NYCRR, PART 617.6? If No, a negative declaration may be superseded by another involved agency. DYes IZJ No C. COULD ACTION RESULT IN ANY ADVERSE EFFECTS ASSOCIATED WITH THE FOLLOWING: (Answers may be handwritten, if legible) C1. Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic pattern, solid waste production or disposal, potential for erosion, drainage or flooding problems? Explain briefly: None C2. Aesthetic, agricultural, archaeological, historic, or other natural or cultural resources; or community or neighborhood character? Explain briefly: None C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species? Explain briefly: None C4. A community's existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources? Explain briefly: None C5. Growth, sUbsequent development, or related activities likely to be induced by the proposed action? Explain briefly: None C6 Long term, short term, cumulative, or other effects not identified in C1-C5? Explain briefly' None C7. Other impacts (including changes in use of either quantity or type of energy)? Explain briefly: None D. WILL THE PROJECT HAVE AN IMPACT ON THE ENVIRONMENTAL CHARACTERISTICS THAT CAUSED THE ESTABLISHMENT OF A CRITICAL ENVIRONMENTAL AREA (CEA)? DYes [ZJ No If Yes, explain briefly: E. IS THERE, OR IS THERE LIKELY TO BE, CONTROVERSY RELATED TO POTENTIAL ADVERSE ENVIRONMENTAL IMPACTS? DYes [{] No If Yes, explain briefly: PART III - DETERMINATION OF SIGNIFICANCE (To be completed by Agency) INSTRUCTIONS: For each adverse effect identified above, determine whether it is substantial, large, important or otherwise significant. Each effect should be assessed in connection with its (a) setting (I.e. urban or rural); (b) probability of occurring; (c) duration; (d) irreversibility; (e) geographic scope; and (D magnitude. If necessary, add attachments or reference supporting materials. Ensure that explanations cOntain sufficient detail to show that all relevant adverse impacts have been identified and adequately addressed. If question D of Part II was checked yes, the determination of significance must evaluate the potential impact of the proposed action On the environmental characteristics olthe CEA. o [{] Check this box if you have identified one or more potentially large or significant adverse impacts which MAY occur. Then proceed directly to the FUL EAF and/or prepare a positive declaration. Check this box if you have determined, based on the information and analysis above and any supporting documentation, that the proposed action WIL NOT result in any significant adverse environmental impacts AND provide, on attachments as necessary, the reasons supporting this determination Town of Southold 11130/07 Name of Lead Agency Date Scott Russell Print or Type Name of Responsible Officer in Lead Agency Supervisor Signature of Responsible Officer in Lead Agency '1~~. t~.. ~J+~ ....,.~ . . RESOLUTION 2007-928 ADOPTED DOC ID: 3354 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-928 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON DECEMBER 4, 2007: RESOLVED that the Town Board of the Town of South old hereby finds that the proposed "A Local Law in relation to Amendments to Chapter 275" is classified as an Unlisted Action pursuant to SEQRA Rules and Regulations, 6 NYCRR Section 617, and that the Town Board of the Town of Southold hereby establishes itself as lead agency for the uncoordinated review of this action and issues a Negative Declaration for the action in accordance with the recommendation of Mark Ten.y dated November 30,2007, and authorizes Supervisor Scott A. Russell to sign the short form EAF in accordance therewith. f7ta...(.o1.fCi.'4'..d~. Elizabeth A. Neville South old Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William P. Edwards, Councilman SECONDER: Albert Krupski Jr., Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell R!"'::"'r:v!'"'r"\ '-vk-".. i...J -... ~f?~. .. l . f\.ECaz. fU. DtJ.N ~:'J >T.r<-N';; oJJ 3 FOOT 2x6 CASE STUDY ~Ol'., :,$ L,1n C:;d A couple, in their mid 70s, are living full time in a home on one of South old's creeks. They purchased the property in anticipation of their retirement at age 65 and have resided there since retirement, on a relatively modest fixed income. The property as purchased included a conventional float / ramp / fixed-dock that was functional at the time of purchase and has been maintained, with some relatively minor maintenance activities, in a functional status since. It is a Thursday afternoon in the spring of2008. The husband has walked from the home to the dock to check things out in anticipation of a visit, for the weekend, of their children and grandchildren. He finds that a 3 foot 2x6, which is part of the fixed dock decking, has deteriorated to the point of being a safety hazard and needs to be replaced, in kind. Upon reporting the condition to his wife he is informed that "The kids will not be allowed on the dock until that plank is fixed". Other than paying taxes, they have had no dealings with Town Hall, beyond applying for "dump stickers" for their car. The husband has heard, from a friend, that upon asking about permission to repair the friend's dock, the friend had been handed a 22 page package of forms to complete and submit. The husband is capable of carrying out the replacement of the 3 foot 2x6 in about one hour total elapsed time. He has available: 1. an 8 foot long [untreated] 2x6 2. a circular saw capable of cutting off a 3 foot piece of the 2x6 3. a crowbar 4. a claw hammer 5. a battery powered portable 3/8" drill with appropriate bitts 6. a supply of suitable deck screws Given the above, and assuming that Local Law 275 has been amended as you feel appropriate [please specify]: A. What action(s) should the resident take? B. How long will the total permitting and repair process take [total elapsed time]? C. What will the total out-of-pocket cost be, including appropriate permit, expediter, lawyer, survey, engineering and 'other' costs? List major expense elements. D. In light of the mandate to preserve our wetlands "for the use of our children and grandchildren", how do you justify any delay, beyond one hour elapsed time, in returning the water dependent dock facility to full functioning status in time for the upcoming weekend visit? E. In light of financial practicality, how do you justify any non-zero out of pocked costs? F. If you were not a town official, what might your action be under the given circumstances? [Be honest with yourself.] f'..' ~-~ i~.''''''l $ p.. 1-/ - ! . . ~ 280-116 ~ 280-115 ZONING ~ 280-115. Tourist camps, camp cottages and trailers. A. Pennits required. No tourist camp shall be established. maintained or operated in any district nor shall any tent, tent house, camp cottage, house car or trailer to be used or occupied as a place for living, sleeping or eating, whether charge is or is not made, be erected or placed therein, unless authorized by the Town Board pursuant to the provisions of Chapter 253, Tourist and Trailer Camps. B. Automobile trailers or house cars. Notwithstanding any other provisions of this chapter, a ~G" . c., . C.' single automobile trailer or house car may be located outside a tourist camp only when authorized by the Town Board and subject to such conditions as may be prescribed by the Town Board. ;i C. Exemptions. This. section shall not be deemed to apply to the temporary or seasonal camp of any unit of the Boy Scouts of America or the Girl Scouts of America or other such organizations under the leadership provided by said organizations, respectively.57 ~ 280-116. Building setback requirements adjacent to water bodies and wetlands. [Added 3-14-1989 by L.L. No. 3-1989; amended 11-24-1992 by L.L. No. 20-1992; 6-15-1993 by L.L. No. 8-1993] Notwithstanding any other provisions of this chapter, the following setback requirements shall apply to all buildings located on lots adjacent to water bodies and wetlands: A. Lots adjacent to Long Island Sound, Fishers Island Sound and Block Island Sound. (I) All buildings or structures located on lots adjacent to sounds and upon which there exists a bluff or bank landward of the shore or beach shall be set back not fewer than 100 feet from the top of such bluff or bank. (2) Except as otherwise provided in Subsection A(I) hereof, all buildings or structures located on lots adjacent to sounds shall be set back not less than 100 feet from the ordinary high-water mark of said sound. (3) Buildings or structures which are proposed landward of existing principal dwellings shall be exempt from the requirements set forth in Subsection A(I) and (2) hereof. B. All buildings or structures located on lots upon which a bulkhead, concrete wall, riprap or similar structure exists and which are adjacent to tidal water bodies other than sounds shall be set back not less than 75 feet from the bulkhead. The following exceptions will apply: (I) Buildings which are proposed landward of existing buildings. (2) Lands which are not bulkheaded and are subject to a determination by the Board of Town Trustees under Chapter 275, Wetlands and Shoreline, of the Code of the Town of Southold. 57. Editor's Note: Former ~ 100-239.3, Berms, which inunediately followed this subsection, was repealed 11-24-1992 by L.L. No. 24-1992. 280: 117 05 - OJ - 2006 . . S 280-116 SOUTHOLD CODE (3) Docks, wharves, pilings, boardwalks, stairs, promenades, walkways and piers, which are accessory and separate from existing buildings or accessory structures. C. All buildings and structures located on lots adjacent to any freshwater body shall be set back not less than 75 feet from the edge of such water body or not less than 75 feet from the landward edge of the freshwater wetland, whichever is greater. The following exception will apply: . (I) Lands which are not bulkheaded and are subject to a determination by the Board of Town Trustees under Chapter 275, Wetlands and Shoreline, of the Code of the Town of Southold. S 280.117. Lighting restrictions. [Added 12.27.1994 by L.L. No. 30-1994] This section is adopted pursuant to the Town's police power. This section prohibits excessive light and glare by any use, restricts lighting in the middle of the night and sets a maximum height for lights to minimize the potential for glare. A. All outdoor lighting shall be shielded so that the light source is not visible from adjacent properties and roadways. Lighting fixtures shall focus and direct the light in such a manner as to contain the light and glare within property boundaries. B. It is a general principle of the Town that parking lot lights should be turned off or reduced in intensity between II :30 p.m. and 4:00 a.m. e. All freestanding outdoor lighting fixtures shall be limited to a height of no more than 14 feet above ground level. The fixture shall focus and direct the light as specified in Subsection A above. D. Recreational lighting may exceed the above height limit but is subject to the following standards: (I) All intensive recreational lighting shall be so located on the property with reference to surrounding properties that it shall be reasonably screened from view and compatible with the existing or potential use of neighboring properties. (2) No outdoor recreational facility, public or private, shall be illuminated after 11:00 p.m. except to conclude a recreational or sporting event or any other similar activity conducted at or in the facility which was in progress under such illumination prior to 11:00 p.m. S 280.118. Temporary outdoor display or storage. [Added 6.11-1996 by L.L. No. 13-1996] All uses permitted in the business zones, including the display and sale of merchandise and storage of all property, except living plants, shrubs and trees, shall be confined to fully enclosed buildings on the premises, except that the display and sale of merchandise incidental to the business on site may be permitted outside the building temporarily each day during the hours of business. In all cases, the storage or display of goods shall not interfere with public 280:118 05 - 01 . 2006 ').'/,G'\ \'b ~ o~, O'{ et;) ece" _~eo,\) ~ .\\\\)\\\ (\\\\\\ '1~\).'l9. ~ . ~\\ \),e' . r- o{''''~ W\\\~\' '~\l.~\ ~~w' 'rt,\c,e, \" . \\\\l.\e0 RECEiVED . . fZe.c. ~ f.rt ",- , L :'~v - 4 4 December 2007 ~outhol~ Town Cler~ Public Hearing: Amendments to Chapter 275 (Wetlands and Shoreline), 4 Dec. 2007 A major element omitted in these proposed amendments to Chapter 275 is a recognition that the sea level is rising. The NY Goddard Institute for Space Studies in a study of the NY Metropolitan area projects a sea level rise of 15 inches to 19 inches by 2050. This is a conservative projection but the common thread among all peer reviewed studies is that sea level rise is inevitable and accelerating since 1993 as a result of global warming. This one event will dominate almost all aspects of what Chapter 275 is attempting to achieve. Waterfront or riparian properties will be gradually eroded and submerged, great tracts of tidal wetlands will disappear. The Town of South old could be faced with contentious litigations involving private property rights v. the public trust doctrine; with safety and resource issues generated by coastal flooding and with ecological changes impacting our shellfish and finfish resources. We are powerless to halt this geological event but the Town of Southold can make some changes to Chapter 275 which may soften the social, legal and economic hardships which loom in the near future. Make no mistake, waterfront property owners are going to lose property in the decades and centuries to come. Section 275-3. A. Findings: An informative warning should be inserted in this finding section stating that a sea level rise may modify sections of this code. It should note that the Town retains authority to execute this code in the best interests of all the public. A failure to firmly state that the Town recognizes that the sea level is rising may have significance in future legal issues particularly regarding the "Taking Clause." Section 275-11. B. 1: Bulkheads, retaining walls, revetments and gabions. Serious conflicts will be created as the mean high tide reaches and rises up the face of the bulkhead and other hard structures. A legal issue results when the public's sovereign right of access, under the public trust doctrine, "to pass and repass' the foreshore disappears. The Trustees title to the foreshore has now been occupied by the riparian land owner. Yet the Trustees cannot legally divest themselves from title and the private property owner may claim a "taking" if the Trustees lay claim to his or her title. It will be a burden on the taxpayer and private property owner to legally fight this on a case by case basis. This potential conflict would be avoided if a paragraph is inserted in Section 275-11.8 1: which would state that bulkheads and other hard structures which become permanently flooded by a rising sea level in such a manner that public passage below mean high tide is prevented that the riparian owner shall be required to give and maintain a public passing way, on the upland, not less than five feet in width, to enable persons to pass and repass around said bulkhead. '-- \ . . Rolling Easements: A legal and economical resolution to the gradual consumption of riparian property by a rising sea level is for Town code to require the waterfront property owner to agree to a rolling easement as a condition for a permit to build a new or to replace an existing bulkhead. Rolling easements do not render property economically useless, they merely warn the owner that some day a rising sea level may render the property useless, and that if this occurs, the state will not allow the owner to protect hislher investment at the expense of the public. The property owner would enjoy the property for decades and be able to factor their investment expectations with the knowledge that the property will eventually be consumed by the sea. A rolling easement should excuse the Town from a "takings clause" law suit. Bulkheads v. tidal wetlands: All bulkheads which exist landward of tidal wetlands will cause the elimination of such wetlands in the decades to come. The presence of such bulkheads will prevent the natural erosion of the shoreline upon which the wetlands depend in order to migrate landward as the sea erodes and submerges the seaward marsh face. The Town will be confronted with difficult ecological and investment decisions over which tidal wetlands merit salvage and which will be allowed to disappear. These decisions require technical expertise of where and if bulkheads will be allowed without violating "the good of all the public" under the public trust doctrine. These decisions for long range planning would be best generated in a Town Department of Natural Resources. Section 275-11.C. 2. Docks: Riparian owners have an inherent right under the public trust doctrine to access over the foreshore. This right includes the right of wharfage to navigatable waters. However, the public has the right of passage across the foreshore subject to reasonable interference of dock structures "but unnecessary obstruction is an invasion of the public right." (Barnes v. Midland Railroad Tel1llinal Company, 218 NY91, 95 (1916). A 1972-73 NY Court decision specified a standard to measure interference by stating "these rights specifically include pushing a baby stroller along the foreshore." (Tucciv. Salzhauer, 40A.D.2d 712, 713,336 NYS2d 721 (1972), affd 33 N. Y.2d 854,307 N.E.2d 256, 352 N. Y.S.2d 198 (1973). Over decades, the Town of Southold has permitted a jungle of dock structures to be erected across the shore with little regard to public passage or enforcement despite the fact that it is clearly stated in paragraph [9]. Here the code specifies that dock structures "extending across the foreshore shall be required to give and maintain a public passing way, on the upland, not less than five feet in width, to enable persons to pass and repass around said dock or by steps or a ramp allowing pedestrian passage." Paragraph [9J should be strengthened by assessing administrative fines and more active enforcement of the many existing violations. NFEC Wetlands Protection Report Dec. 2006): The North Fork Environmental Council prepared a critique of Southold Town Wetlands Code focusing on the codes weaknesses and suggesting corrections. This report sheds intelligent insight on weaknesses in the present town code and the Trustees application of the Town Code. The NFEC report appears to be largely ignored in this proposed revision and should be more seriously considered. . . . Southold Town will encounter technical and highly complex planning; legal; and ecological issues which will be challenging. The Town should adopt a new strategy to efficiently resolve these issues. The Supervisor and the Town Board are considering a proposed Department of Natural Resources. This new department will consist of present town employees of various technical expertises which under the umbrella of one department should operate at greater efficiency. The Town Board should adopt this new department. Reference: James G. Titus. 1998. Rising Seas, Coastal Erosion and the Takings Clause: How to Save Wetlands and Beaches without Hurting the Property Owner. Maryland Law Review. Vol. 57(4). Pp 1281- 1399. Submitted by Doug Hardy Southold, NY 765-5425 . ~c~PH: 1;J.1'-I/()'7 , PATRICIA C. MOORE Attorney at Law 51020 Main Road Southo1d, New York 11971 RECEIVED Tel: (631) 765-4330 Fax: (631) 765-4643 DEe - 4 2007 Memo: Southol~ Town Clerk TO: Town Board FROM: patricia C. Moore DATE:December 4, 2007 Re: Public Hearing on Chapter 275 1. Nondisturbance Buffer: establishing a 30 foot minimum is not appropriate in all cases where the property is undersized. Also, a 30 foot nondisturbance buffer is not applicable adjacent to "shoreline structure" i.e. bulkhead. 2. Notice sent to landowners with existing docks in 1985 Exceptions: 275-4 (4) hand pruning of invasive vines should be specifically described. It appears to be permitted but unclear. (5) "presently permitted by this chapter" poor wording because the Trustees interpret the language as having a permit, public reads as permitted i.e. allowed by this chapter 3. 275-5 (0): Why would feet be prohibited? feet from wetlands. removal of a tank located within 25 Remove it and relocate it more than 25 275 (10) Access path- some properties are encumbered by right of ways and more than one path may be legally required. Example: Homeowner has a path in the center of their property but either a HOA or neighbor has an easement granted which requires the property owner to allow passage along the side of their lot for the neighbor. The prohibition to only one path will result in litigation with the Town. ( C) One dock per lot is a problem with properties with easements for neighbor's catwalk and dock. . . 275-16 Compliance; Penalties (6) Revocation of a permit when a violation of this chapter is found... Court makes final determination not Trustees. Not issuing a permit or amendment to a permit until violation is resolved has been in place and working because the permit is considered, held, and not issued until the Court action is resolved. If a permit is not issued the property owner has a right to a trial. However, revocation of a permit is a much more aggressive act which requires notice and due process. This action is being taken by the Trustees merely "when a violation is found". There have been circumstances where the violation is unclear and is ultimately resolved with compromise. A property owner has vested rights in a legally issued permit. Thank you. . . TELEPHONE (516) 765-1892 BOARD OF TOWN TRL'STEES TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 728 Southo1d, New York 11971. June 24: 1985 Dear \l\Q, ~"Q.,k '<. The Trustees are surveying -;he marine structures of Southold's creeks for the purpose of establishint the accuracJ of the town records, Now in our fourth season, we have completed the inventories of Laurel, Mattituck, and Cutchogue creeks. We have been to your property but unfortunately you weren't available. Enclosed please find a grandfather application for the dock which appears on your property. We recognize that your structure is presently unused and deteriorated. However, if you rebuild the structure in the future, the grandfather application will be proof that you are simply maintaining your structure. Without the grandfather application, you may have to go through the time and expense of a new permit application. We would appreciate your cooperation in our endeavors to update our records. Thank you very much. SinCerelY". .~. D'~f21~' dvw I~!;~U I. /jtw 0 Deborah . Shalvey Robert J.. Slavonik Creek Surveyors for Southold Town Trustees Henry P. smith, Pres. ':'J>i;.:~ :..,' ( . . GARY MANGUS ARCHITECT 121 STERLING PLACE 4B BROOKLYN, NEW YORK 1 1217 RECEIVED tg /? 4. v - 4 December 4, 2007 Mr. Scott Russell Town Board Town of Southold PO Box 1179 Southold NY 11971 Soufholrl Town Cler& Dear Mr. Russell, I live at 1295 Island View Lane, in Greenport, and am writing in regard to the proposed changes to Local Law 275. My residence is on a creek and within 30' of the wetlands. I am very concerned with protecting our wetlands and our natural environment. I began applications for work on my residence four years ago. The application is still in DEC and the approvals received from DEP have now long expired. Though environmental control aspects of my proposal have evolved, due to the slow approval process and the number of different agencies from which approvals are required, I will have to re-apply for essentially the same work previously approved. With the proposed local law changes my proposed work would most likely not be possible. And, this laborious and expensive process would be required to even maintain my current property. Our residence at just over 700 SF is too small for our needs in order for my wife and me to live in Greenport full time. This proposed Local Law change could restrict us from living here. I am an NYS licensed architect practicing out of Brooklyn NY, primarily in the NYC area. Our Greenport residence was built in 1947 and includes virtually no run-off controls and an old septic system deeper than it should be given the ground water table. My proposal to rebuild on the same footprint and away from the wetlands includes an extensive green roof for the entire house footprint. This would control more then 85% of vertical rainfall through plant respiration and evaporation, and for the remaining 15% that is released to be detained and released slowly for irrigation. A perimeter collection system is proposed to collect horizontal wind driven rain and divert it to dry wells for slow release. Both runoff volume and temperature changes to run-off back to the wetlands are controlled. A new conforming septic system is proposed. The foundation is changed from a perimeter foundation to pile type making the land below the house available for absorption. The green roof will control for ambient outdoor air temperature increases as well. With this range of control measures there is actually more absorb son and run-off control then if the land were not built on. What was my response from DEC? They told me they are not concerned with abatement, and do not care about mediation measures or run-off control, they just do not want to allow any development. GARY.MANGUS@VERIZON. NET FAX 718.398.5687 PHONE 718.398.2348 .. . . GARY MANGUS ARCHITECT 121 STERLING PLACE 4B BROOKLYN, NEW YORK 11217 The permit process for current residents in or near wetlands is already excessively costly, lengthy, and restrictive. Measures, which would make a difference, are not even considered, while excessively restrictive regulations that provide little actual benefit are being put into law. The changes currently being proposed will make it excessively difficult for me to even maintain my property let alone make it more environmentally friendly. We need to foster a more symbiotic relationship with our wetlands and our environment in general. We need to learn to live appropriately in our environment. Legislation needs to be more flexible and change friendly. We are currently unnecessarily restricting or severely discouraging change. We need to encourage not discourage environmentally friendly changes if we want to make a difference in saving out wetlands. T/.\.. ol~\JHblJ .n,"P?eul Lln_ !-'uo:1:i61. S..A:ll1.6IdV6k..... iJ L~khb:" \Jpy....JiL:..:..... L.... lL.... y.Lu!-'VJ\:.J <:1........(,"-'-' La LacdI LAn ::7S. Sincerely, Gary Mangus GARY.MANGUS@VERIZON. NET FAX 718.398.5687 PHONE 718.398.2348 . , . . GARY MANGUS ARCHITECT 121 STERLING PLACE 4B BROOKLYN, NEW YORK 11217 December 4, 2007 To whom it may concern, I am herewith authorizing SoutholdVOICE proxy to read my letter of 12.4.07, written to Mr. Scott Russell and the Southold Town Board regarding the changes to Local Law 275, at the hearing. Sincerely, Gary Mangus GARY.MANGUS@VERIZON. NET FAX 718.398.5687 PHONE 718.398.2348 Paul J. Torpey <ptorpey@suffolk.lib.ny.us> Mon, Dec 3, 2007 at 11 :51 PM T~: Joanna Lane <joanna@propertyangwom>, John Kramer <jjk1235@gmail.com> . In our absence it would be most appreciated if you or another member of SoutholdVOICE would read and submit our comments into the record of the 12/4/2007 Southold Town Board Hearing on Local Law 275. Thank you, Paul & Phyllis Torpey RECEIVED t? -P# .', -. 4 TO THE SOUTH OLD TOWN BOARD: Soufnolrl Town (led We are in accord with all the issues raised in SoutholdVOICE's "Call To Action" Document already submitted into the record of the Public Hearing 12/4/2007 on Local Law 275 and in addition we offer the following additional comments for your consideration: There are sections in LL 275 that strike a tone of petulance and combativeness which works against a spirit of mutual cooperation and trust that is essential for successful voluntary compliance which is at the heart of negotiated-consensus rulemaking with all the stakeholders, including the Town Board, Town Trustees, and tax paying owners and users. Section 275-16 is one flagrant example of this. Granted fines are in order for persistent, willful non-compliance but the entire 275 document is so complex, has been patched so many times, is annoyingly ambiguous in places, and is difficult to even understand and interpret at times. And there are requirements within LL 275 that are judged by many of the property owners to be unfair and unnecessary. Given this state of affairs and until some of these things are either fixed or better explained, it seems to us that the "knuckle-rapping" should not be stepped up. In truth it angers people, makes them dig in and it makes a mockery of the desired outcome of mutual cooperation and voluntary compliance. Along these lines, it is not clear to many of us what the thinking was in elevating fines and penalties by as much as 300%!?? Has compliance with 275 been so devastatingly bad that this is deemed necessary? If that is the case we have a much bigger problem on our hands and even more work needs to be done to fix a flawed piece of legislation. We do believe the Trustees and the Town Board have an obligation to take the taxpayers/stakeholders into their confidence and discuss with them (all of us) the reasons and rationale behind these draconian increases which, failing this, will lead to increasing discontent, if not hostility between the parties. Finally, the other side of this coin is not at all pleasant to even mention. That 12/3/200711:56 PM . . is, are we creating the perception of using environmental protection mandates as a means of raising additional revenue for the Town...? We think the Town BoardfTrustees should establish a Local Law 275 Reconciliation Task Force comprised of town officials and the other stakeholders to take a fresh, thorough and balanced look at the whole document and come up with an updated, clearer draft that reflects something closer to a reasoned consensus between all the parties. Respectfully, Paul & Phyllis Torpey 3 December 2007 12/3/200711:56 PM . Comments on proposed changes to 275 . . Subject: Comments on proposed changes to 275 From: Daniel Christianson <stiminc@optonline.net> Date: Mon, 19 Nov 200713:55:49 -0500 To: "Russell, Scott" <Scott.Russell@town.southold.ny.us> CC: Diane Castaldi <diannebobc@aol.com>, "Betsch, John" <sandeeshoes@verizon.net>, "Christianson, Barbara" <bebece@optonline.net>, Joanna Lane <propertyangels@gmail.com>, "Birman, Paul" <paul@pbirman.com>, "Rose, Douglas" <dfr2deslgn@aol.com>, "Kramer, John" <jjk1235@gmail.com> RECEIVED qp /?H. ~ ",- , U'.v - 4 Southolo Town Cler~ To: Scott Russell, The attached "annotated" 275 amendment is forwarded to provide you with my comments / information / input relative to provisions found in [and missing from] the presently proposed amendment to 275. In an attempt to provide comments "in context" I have inserted them with italic or hold italic fonts into the draft amendment I received from your office on 09NOV07. While, for example, I believe that sections of the proposed amendment, such as 275-4. A. (10) should be moved forward on, it's companion section 275-4. A. (5) is not acceptable in its present form. Although much of the input presented in the attached has been provided to the other SoutholdVOICE board members as input for "talking points" and "questions to be asked", in the present context it represents the current views of one Southold resident. I am confident that others, more qualified than I, might have comments on areas such as 275-l2B and 275-16. I recognize that the task of aligning Southold codes with the Town of Southold L WRP is a daunting one, and I appreciate the thought and effort that has been expended in this effort, to date. However, I believe that, as a minimum, additional fine-tuning is required. Regards, Dan Christianson lof] 11/26/~007 ]:] 9 t . . .. .!f..~. . N& """ ~ .... ~ ..^ RESOLUTION 2007-870 ADOPTED DOC 10: 3304 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-870 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON NOVEMBER 7, 2007: RESOLVED that the Town Board of the Town of Southold hereby amends resolution 2007- 792. adopted at the October 9. 2007 rel!ular Town Board meetinl! to read as follows: WHEREAS, there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chaoter 275" now, therefore, be it RESOLVED that the Town Board of the Town of South old will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th day of December 2007 at 7:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275". BE IT ENACTED by the Town Board of the Town of Southold as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it 1 ) . . is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. The body of this study should be considered in the context of these facts: I. Chapter 268: WATERFRONT CONSISTENCY REVIEW,[Adopted by the Town Board of the Town of Southold 7-2-2004 by L.L. No. 16-2004], under "268-3. Definitions", defines ENVIRONMENT as "All conditions, circumstances and influences surrounding and affecting the development of livinf! orf!anisms or other resources in the costal area." It must be recognized that Southold residents who are waterfront property owners, or are otherwise involved stakeholders, and their families, are livinf! orf!anisms and that their homes, gardens, docks, and other properties are a sustaining part of their environment and require full protection under 275 and the L WRP. Also see the following, extractedfrom the FORWARD to the LWRP: "The 21st century will bring with it a multitude of unique challenges. I have heard it said that the biggest challenge of our time is preserving the environment while maintaining the fabric of our community. This statement assumes that the environment does not include people thereby creating a clear divide between our natural setting and the many other important components that make our community so special. Simply defined, environment means surroundings. I believe our challenge is much greater. .... We must recognize the importance of our surroundings as a whole- people, places and things. We must then think of this broader context when we use and apply the word environment. And, we must rise to the challenge of preserving this inclusive vision of our environment so that we truly do preserve Southold Town. Like all good public policy, the LWRP must be constantly reviewed and amended to represent and meet the varying needs of South old Town. Joshua Young Horton Supervisor" 2. While the subject proposed amendment to 275 does address some of the problems resident in the "original" 275, it understandably does not address all problem areas. These areas will need to be considered in the future. MISSING PROVISIONS: Mm:1J!. of the provisions / definitions of the original 275, that need to be updated, changed and / or clarified, are not treated by the existing proposed amendment. For example: 2 , . . A. Simplification / removal of unnecessary [and / or uninforcedJ fine structure details such as: a. 275-1i., C, (2), [6J All docks andfloats shall have the appropriate permit number permanently affixed.... three inches high.....withstand exposure to the elements. b. 275-11., C, (2), [13J Utilities and Water: Ifpower and / or water are to be installed on a dock, plans for the installation must be provided....installation of such amenities on an existing permitted dock requires obtaining an amendment... . A number of these provisions make compliance and / or enforcement virtually impossible. B. Chapter 268: WATERFRONT CONSiSTENCY REViEW [which "implements" the LWRPJ provides: MiNOR ACTIONS -include the following actions, which are not subiect to review under this chapter: A. Maintenance or repair involvinf! no substantial chanf!es in an existim! structure or facility; B. Revlacement. rehabilitation or reconstruction of a structure or facilitv. in kind. on the same site, including upgrading buildings to meet building or fire codes, except for structures in areas designated by the Coastal Erosion Hazard Area (CEHA) law where structures may not be replaced, rehabilitated or reconstructed without a permit; G. Minor temporary uses of land having nef!/if!ible or no vermanent impact on coastal resources or the environment; These concepts, and others to be found in the LWRP, etc., must be reflected, by amendment, in 275. II. Chapter 275 of the Code of the Town of South old is hereby amended as follows: S275-2. Definitions; word usage. ACCESS PATH -- an area. cleared by hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of any manmade structure. to provide a walkway to a body of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or cOlUlected to a bulkhead or the upland and extending over the water's surface, designed to secure 3 . . . vessels and provide access from the shore to a body of water. For the purpose ofthis chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "catwalks." FUNCTIONAL - Anv structure that, in its current state, primarilv retains its purpose and use as determined bv the Board of Trustees. 275-2. Definitions; word usage.: "FUNCTIONAL - Any structure that, in its current state, primarily retains its purpose and use as determined bv the Board of Trustees. " A dock that was functional and jimctioning in the summer and fall, but which suffered ice damage during the winter, would not fit a strict interpretation of "FUNCTIONAL" [or "jimctioninf! ", as used in 275-4., A., (5)J and would not be qualified under "275-4 Exceptions" which provides for [275-4., A., (5)J "ordinary and usual maintenance and repair" not requiring a permit. Similarly, a home, heavily damaged by wind storm or fire, would not come under the "protection" of275-4., A, (5).1 NONDISTURBANCE BUFFER - Aft- A vegetated area, typically 50 feet -side !! minimum of 30 feet wide as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities eaH may take place, except that manmade debris may be removed from such area bv hand without the permission ofthe Board of Trustees. "Activities": A number of275 / "275 amendment" provisions prohibit, or otherwise limit "[otherJ activities ". No definition of "activities" is provided in 275 [or in 268, which does provide a definitionfor "ACTIONS".] Children and grandchildren of the property owner, walking to and on a dock, are engaged in an "activity" and could be found to require a Trustee permit. [We will not address "activities" between consenting adults, in the privacy of their bedrooms located within I 00 feet of wetlands.]. Suggest that the prohibitions be limited to "operations" which IS presently defined by 275 as: OPERATIONS [Amended 10-11-2005 by L.L. No. 17-2005J (1) The removal of material from wetlands or otherwise within Trustee jurisdiction. (2) The deposit or discharge of material on wetlands or otherwise within Trustee jurisdiction. (3) The deposit or discharge of material on any area that results in the transport of said materials into wetlands or otherwise within Trustee jurisdiction. (4) The erection, construction, alteration or enlargement of any building, dock, pier, wharf, bulkhead, jetty, groin or other structure, temporary or permanent, on wetlands, or otherwise within Trustee jurisdiction. (5) Removing or otherwise affecting the growth of plants in wetlands or otherwise within Trustee 4 . . jurisdiction. Further, what debris are manmade? leg: The driftwood syndrome.] RESIDENTIAL DOCK -- Any catwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. Should be recognized as "water dependent" and of significant cumulative economic value and be granted the benefits per LWRP M1/M2 zone water dependent, economically significant items. 9275-4. Exceptions. A. The provisions of this chapter shall not affect or prohibit nor require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside any designated buffer area are not included in this exception. laHdviarEl of the ',vetlaHEl bOlmElary. (5) The ordinary and usual maintenance or repair (of the same dimensions) ofa presently permitted by this chapter, existiHg and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. "Grandfathering": The "protections" from permit requirements of 275-4., A., (5) are limited to structures "presently vermitted bv this chaDfer ". Thus, any ordinary and usual maintenance and repair of any structure originally built [or permitted} prior to the late 2004 effective date of 275 would require a permit every time the owner picked up a hammer to conduct "usual maintenance and repair"! If the same logic is to be applied to 275 as amended, all structures that dated before some time in 2008 [or the effective date of some future amendment} would loose protection from "usual maintenance and repair" permit requirements. The concept, found in the LWRP: Permitted Uses: 1. One (1) One-family detached dwelling per single and separate lot of record in existence as orthe date or adovtion orthis local law. 5 . . 2. Marinas for the docking, mooring and accommodation of recreational or commercial boats, including the sale of fuel and oil primarily for the use of boats accommodated in such marinas. 3. Boat docks. SUDS. Diers or wharves for Dleasure or fishing trips or for vessels engaged in fishery or shellfishery. Should be reflected in 275. WHAT IS THE DEFINITION OF "PERMITTED"? (a) Allowed [by past practice) (b) Allowed by regulations in force at construction / erection (c) Covered by any Southold Town permit or registration in force at construction / erection / alteration. (d) Covered by 275 (e) Covered only by 275 as (currently) amended (/) "Other" It should be noted that Chapter 268: WATERFRONT CONSISTENCY REVIEW [which "implements" the LWRP) provides: MINOR ACTIONS - Include the following actions, which are not subiect to review under this chapter: A. Maintenance or repair involvina no substantial chanaes in an existina structure or facility; B. ReDlacement rehabilitation or reconstruction of a structure or facilitv. in kind. on the same site, including upgrading buildings to meet building or fire codes, except for structures in areas designated by the Coastal Erosion Hazard Area (CEHA) law where structures may not be replaced, rehabilitated or reconstructed without a permit; G. Minor temporary uses of land having negligible or no permanent impact on coastal resources or the environment; Structures [and "Fences" (see 275-11. A. (4)] that "preexist" 275 should not require permits for usual maintenance and repair or for replacement, rehabilitation or reconstruction, in kind. (10) Installation of new or replacement windows, roof shingles, doors, dormers and siding on existing structures onlv. GOOD! However, I can install these items on an existing [non- presently permitted l2x. this chavter. a:isting and functioninzl structure without a permit, but per (5) above J can not carry out the ordinary and usual maintenance or repair (of the same dimensions) of same[ or of a an existing but non-permitted / non-functioning dock) without a permit. This is insane! (II) Notwithstanding the above listed exceptions, activity within a designated non- disturbance buffer is prohibited. 6 . . B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the of other departments or agencies. ~275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction ofa permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. not to exceed 20 feet wide as defined in p75 2. 275-5., B., Administrative Permits: Several of the provisions to be "consideredfor administrative review" [for example: "(I) Minor restoration or alteration of landscaping " and (n) Minor alteration to existing permitted shoreline structures..... "] shouldfali under "275-4. Exceptions" requiring !1Qpermit. [See 275-4. Exceptions: (2), (4), and (5), and B. "Grandfathering" above.] Q) Minor restoration or alterations of landscaping. Define "Minor restoration or alterations" Mowing grass? Raking leaves? Pulling weeds from a flower garden? (M) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing, established yard area when more appropriate upland placement is not possible. Installation, burial or removal of a propane tank less than 25 feet from wetlands is generally prohibited. (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the 7 . . property and in event at the discretion ofthe Board of Trustees. 9275-7. Fees. F. Dredging Fee. Every application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic yard of dredge spoil to be removed. 9275-10. Contents of permit. 1. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." 9275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Any fence, barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chaPter shall be removed upon written notice to the owner of the premises upon which such fence, barricade or impediment is located sent bv certified or registered mail. Such fence, barricade or impediment shall be removed by the owner within 30 days of the date of the notice. Upon failure to complv with such notice. the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector, Code Enforcement Officer or Bav Constable to create a hazard to the health, safety or welfare of the public, such structure may be removed and disposed of by the Town without prior notice to the owner. Upon removal bv the Town, all costs and expenses incurred bv the Town for the removal of such fence, barricade or impediment shall be the responsibilitv of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs 8 . . associated with removal, including filing a statement with the Town Assessors, identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors, in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levy against such property, shall constitute a lien and shall be collected and enforced in the same manner, bv the same proceedings, at the same time and under the same penalty as is provided bv law for the collection and enforcement of real property taxes in the Town of South old. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet offence is allowed, no larger than 12 inches by 12 inches square. (2} Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for onlv one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned Ml or M2 may be given greater flexibility in these requirements given the water- dependent nature of their use. (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), ereosote, penta products, Alkaline Copper Quat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined bv the Trustees. Any use of creosote is prohibited. Preservatives of any type, 9 . . including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (1) Lighting: Any and all lights associated with bulkheads, retaining wall!h stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned Ml or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of South old, the use oflumber pre- treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), creosote, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be aetermincd at the discretion of the Trustees. ACTIONABLE "requirements": The draft amendment to 275 makes repeated use of the phrases such as "as designated / determined by/ as determined by the Board of Trustees". These phrases do not provide actionable guide lines for prospective applicants or other residents seeking to maintain their environment without violating "the law ". ["DEFNINTION": 10 . . ACTIONABLE - The opposite of "That's the wrong rock. Go back and get me another (characteristics unspecified) rock"!] While it is recognized that the Trustees need and responsibly exercise judgment and flexibility during the regulatory process, it should also be recognized that residents must be given "actionable" requirements whenever possible. [3] (b) Dock locations and lengths. [a] Given the lffiique and sensitive n!\taml environmefltal characteristics described in the Town of Southold Local Waterfrent Revitalization Plan and the New York State Department €If State Sigaificant HalJitat descriptions, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Matti tuck Creek. East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands. except that floats 20 feet in length or smaller and boats 16 feet in length or smaller may be stored above mean high tide. on blocks at a minimum of 12" above grade. during the period beginning November I through May I. [3] [d) How does a resident get a 20 foot longfloat "on blocks at a minimum of 12" above grade"? (c) Regulations for the placement and configuration of docking facilities. [I] Residential docks. [a] Only one 00ek;. catwalk may be permitted per residential lot. Only one mooring or dock may be me €Iring is 11 . . permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees; (3) Dredging. (a) Creeks. [1] Onlv maintenance dredging (as defined in g275-2) enly is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation oflow-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (Q) All dredging applications must demonstrate a specific location for the deposit of dredging material. Dredging: 275-11., C, (3) (a) [1J states that "Onlv maintenance dredging (as defined in 275-2 is permitted. unless the applicant owns underwater land... ..... " The LWRP states {Implementation, page 59}:" Dredflinfl and Spoil Disposition Plans This project would flow from the Shoreline inventory and the Erosion Monitoring projects... . The data from the other projects would help develop a regular program of maintenance dredging and guide the disposition of spoil to areas that would benefitfrom beach nourishment". Further: 275-11., C, (3) (a) [2J states "Dredging may be permitted when it can be demonstrated that the actions of man have resulted in impairment to water quality or habitat value. " and, further: 275-11., C, (3) (b) Freshwater wetlands. states: "Dredging of freshwater ponds may be permitted when it can be demonstrated that such action will restore the water body to an historic condition, improve water quality or habitat value. " and still further: 12 . . The amendment to 275, 275-5., B., (P) provides for an administrative permit for "Dredging work caused by accumulation of silt from run-offor other circumstances ...." "Environmental" dredging of creeks to restore the water body to an historic condition, improve quality or habitat value !!:l!:JS. be providedfor. Where water quality or habitat value have been impaired by actions of man - or nature - environmental dredging must be permitted. g275-12 A &275-12 B A. Standards for Issuance of permit Stop work orders. The Bav Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bav Constable or Code Enforcement Officer shall issue a stop-work order to halt: (1 ) Anv work that is determined bv the Bav Constable or Code Enforcement Officer to be contrary to any applicable provision of this Chapter, or: (1) Anv work that is being conducted in a dangerous or unsafe manner in the opinion of the Bav Constable or Code Enforcement Officer, without regard to whether such work is or is not work for which a trustee permit is required, and without regard to whether a trustee permit has or has not been issued for such work; or (2) Anv work for which a trustee permit is required which is being performed without the required trustee permit or under a trustee permit that has become invalid, has expired, or has been suspended or revoked. B. Stop-work orders shall: (1 ) Be in writing; (2) Be dated and signed bv the Bav Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) If applicable, state the conditions which must be satisfied before work will be permitted to resume. C. The Bav Constable or Code Enforcement Officer shall cause the stop-work order, 13 . . or a COpy thereof, to be served on the owner of the affected property, and if the owner is not the permit holder, on the permit holder, personally or by certified mail to the owner or permit holder and posting at the work site. The Bay Constable or Code Enforcement Officer shall be permitted, but not required, to cause the stop- work order, or a COpy thereof, to be served on any or all of the following; builder, architect, tenant, contractor, subcontractor, construction superintendent, or their agents, or any other person taking part or assisting in work affected by the stop- work order, personally or be certified mail and posting; proyided, howeyer, that failure to serve any person listed aboye shall not affect the efficacy of the stop- work order. D. Upon issuance of the stop-work order, the owner of the affected property, the permit holder and any other person performing, taking part in or assisting in the work shall immediately cease all work which is the subiect of the stop-work order. E. The issuance of a stop-work order shall not be the exclusiye remedy ayailable to address any eyent described in this section, and the authority to issue a stop-work order shall be in addition to, and not in substitution for or limitation of, the right and authority to pursue any other remedy or impose any other penalty under any other applicable local or state law. Any such remedy or penalty may be pursued at any time, whether prior to, at the time of, or after the issuance of a stop-work order. S275-l6. Compliance requirements; penalties for offenses. B. For each offense against any of the proyisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such 14 . . violation occurs shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to ~275-10 shall be subject to a fine of not more than $1,000. (3) Failure to heed a eease and desist order stop work order. Any person conducting operations in direct contradiction to the terms of a stop- work order shall be subject to a fine of not less than $1000 and not more than ~. $4000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1000 nor more than ~ $7500 or a term of imprisonment of not less than IS days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to comply with a restoration plan. Any person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $1.000 and not more than $4,000. Are all of the above misdemeanors? IS . . ~@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees mav revoke a permit when a violation of this Chapter or Chapter 111 is found on the same propertv. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are JLnamed as defendants in an outstanding or unresolved wetland 'iiolatioR.violation of Chapter 27S Wetlands and Shoreline or Chapter 111 Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law ~crU'.ftl~;IL Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS) MOVER: Albert Krupski Jr., Councilman SECONDER: William P. Edwards, Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell 16 RE: P.H. 7:35 PM 12/It/07 "Ceter 275" . RECEIVED DEe - 4 2COJ Southol~ Town Cler~ MEMORANDUM To: Town of Southold Town Board Patricia Finnegan, Town Attorney From: Mark Terry, Principal Planner L WRP Coordinator Date: December 3,2007 (revised) Re: "A Local Law in relation to Amendments to Chanter 275" The proposed local law has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of South old Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided on the LWRP Consistency Assessment Form submitted to this department as well as the records available to me, it is my determination that the proposed action is CONSISTENT with the Policy Standards and therefore is CONSISTENT with the LWRP provided that the following best management practices and process recommendations are incorporated to further the below policy standards: Bulkheads S275-5. Permit procedures, B. Administrative permit. (2) The following operations will be considered for administrative review: (j) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition ofa nonturfpervious buffer area. Rot to exceed 20 feet wiae as aefiRea iR ~275 2. (n) Minor alterations to existing permitted shoreline structures including . . stairs, bulkheads and docks. To clarify the intent of the administrative permit process, and assist applicants in the preparation of site plans; it is recommended that ~275-5.,B (2) (j) [3] declare a minimum buffer width to protect the adjacent natural feature. This recommendation supports and furthers Policy 6,3. Protect and restore tidal a freshwater wetlands and sub-policy 6,3.D (below). 6.3 Protect and restore tidal and freshwater wetlands, D. Provide adequate buffers between wetlands and adjacent or nearby uses and activities in order to ensure protection of the wetland's character, quality, values, and functions. The adequacy of the buffer depends on the following factors: I. Potential for adverse effects associated with the use. Uses such as those involving hazardous materials, on-site sewage disposal, or mineral extraction have high potential for adverse effects and may require substantial buffer. 2. The nature and importance of the wetland and its benefits. Substantial buffers may be necessary to avoid adverse effects from adjacent or nearby uses based on the nature of the land use and the characteristics of the affected wetland. 3. Direction and flow of surface water between a use and adjacent or nearby wetland. Buffer widths may be reduced in areas where drainage patterns normally do not lead directly to the wetland and where adverse affects on the wetland, other than those due to runoff, are not likely. 4. Buffer width necessary to achieve a high particulate filtration efficiencv of surface runoff as determined bv vegetative cover tvoe, soil characteristics, and slope ofland. 5. Other management measures or design alternatives to protect wetlands from adverse effects where site constraints do not allow sufficient buffer width. In addition, it is recommended that the term "alterations" in ~275-5., B (2) (n) be defined. The term "alteration" implies change in configuration, scale or design. Consider changing the term "alteration" to "repairs". Dredl!:inl!: Comments on ~275-5" B (2) (p): (p) Dredging work caused bv the accumulation of silt from run-off or other circumstances not the result of activitv bv or on behalf of the owner of the propertv and in event at the discretion of the Board of Trustees. To clarify the intent of this proposed amendments, it is recommended that the following Chapter 275. Wetland and Shoreline, and Section 280.8 Effect of establishment of districts regulations applicable to dredging be referenced by section or specified as conditions of the process. . . S 275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (2) Erosion control. Installation of an erosion control structure is necessary during any building, grading, landscaping or site work activity within Trustee jurisdiction. This structure may include, but is not limited to, installation of a silt fence, hay bales, wood chip berm and silt booms. The placement of the erosion control structure(s) shall be determined by the Trustees or their designee. All intertidal construction and excavation requires the installation of a silt boom that will retain all suspended sediments within the immediate project area. (3) Dredging. (a) Creeks. [1] Maintenance dredging (as defined in S 275-2) only is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation oflow-sill bulkheads. [2] Dredging may be permitted when it can be demonstrated that the actions of man have resulted in impairment to water quality or habitat value. [3] Dredging in, or in close proximity to salt marsh vegetation (Distichlis spicata, Spartina alterniflora or Spartina patens) or seagrass (Ruppia mariti a or Zostera marina) meadows is prohibited. (b) Freshwater wetlands. Dredging of freshwater ponds may be permitted when it can be demonstrated that such action will restore the water body to an historic condition, improve water quality or habitat value. S 280-8. Effect of establishment of districts F. Notwithstanding the limitations imposed by any other provisions ofthis chapter, no building, dredging or filling operation shall be permitted below the datum of mean high water oftidal waters unless such building, dredging or filling operations have been duly authorized and are conducted in conformity with all laws, ordinances, rules and regulations of all governmental agencies having jurisdiction thereof. The recommendations will fnrther Policy 5.3. Protect and enhance quality of coastal waters (below) and Policy 6.3. Protect and restore tidal a fresh water wetlands. Policy 5.3. Protect and enhance quality of coastal waters. 5.3 Protect and enhance quality of coastal waters. A. Protect water quality based on an evaluation of physical factors (pH, dissolved oxygen, dissolved solids, nutrients, odor, color and turbidity), health factors (pathogens, chemical contaminants, and toxicity), and aesthetic factors (oils, floatables, refuse, and suspended solids). . . B. Minimize disturbance of streams and creeks including their bed and banks in order to prevent erosion of soil, increased turbidity, and irregular variation in velocity, temperature, and level of water. C. Protect water quality of coastal waters from adverse impacts associated with excavation, fill, dredging, and disposal of dredged material. Pursuant to Chapter 268, the Town Board shall consider this recommendation in preparing its written determination regarding the consistency of the proposed action. Cc: Lori Hulse, Assistant Town Attorney Kieran Corcoran, Assistant Town Attorney . . Page 1 of 1 Neville, Elizabeth From: Terry, Mark Sent: Tuesday, December 04,20079:01 AM To: Finnegan, Patricia; Corcoran, Kieran; Hulse, Lori Cc: Neville, Elizabeth; Standish, Lauren Subject: 11.8.07 Local Law 275 Amend.doc Attachments: 11.8.07 Local Law 275 Amend doc Attached is a revised LWRP review of Chapter 275 Amendments. The earlier version was printed with the wrong date. I apologize for the oversight. 12/4/2007 RE: P.H. 7:35. 12/4/07 "Chapter 275" . Page I of I Neville, Elizabeth RECE!VED From: blaingassoc@optonline.net DEe _ 4 Sent: Tuesday, December 04, 2007 8: 11 AM To: Neville, Elizabeth I .~ Subject: [NEWSENDER] - TOWN BOARD MEETING DECEMB~UJ~~!futO-i,)je~iJge is from an unknown sender PLEASE FORWARD TO THE TOWN BOARD AS THEY HAVE NO DIRECT CONTACT EMAIL THAT I COULD FIND ON THE WEB SITE. My wife and I object to the proposed changes in the Town Trustees' regulations. They already have too much power over private lands; do not give them more. They are choking off our retirement in Southold by reducing our buidlabe area step by step to a postage stamp size! WE CAN NOT PUT A 30 FOOT BUFFER (MANDA TORY) ON OUR PORPERTY AND STILL GET A DECENT SIZE HOUSE. TO PARAPHRASE OUR RECENT LETTER TO THE TRUSTEES: "As a practical matter, a reduction in coverage is will provide an area too small to provide for a modem home's foot print, particularly for retirement. My wife and I wish to retire on our waterfront property in Southold. A re-constructed home must have a garage, kitchen (with mud room & storage), utility room, one bedroom, living room, dining room and kitchen on the first floor. All steps, doorways and life requirements must be accessible to a wheel-chair bound individual on thc:_first floor. We have a 11,000 square foot lot from 1954; there is nQ way such facilities can fit with a 3,000 to square foot, reduced foot print on the lot! If you go to a mandatory 30 foot buffer, you have taken our retirement home from us and our benefit to the Town in terms of general welfare, economics and taxes. Finally, there is no need for this change. Long Island is sandy! Dry wells and other infiltration features can readily control storm runoff from impervious surfaces created on a lot with development coverage. Further, roof drainage is "clean" over time! What exactly are you attempting to mitigate or prevent? The technology of modem infiltration devices more than provides such mitigation. To close, do not take our collective property and specific our retirement from us/me (and do not do so for reasons that can be mitigated). A reduction and allowed coverage due to a mandatory 30 foot "buffer" will be a taking of our/my property without just compensation. I implore you not to do so." The waterfront residential community is an economic engine in the Town. We have disposable income. If you drive us away by over-regulation, the Town's economy will also suffer. Bontje 71 Nautilus Ave. N orthport, New York 11768 6312617170 6312617454 FAX 12/4/2007 . . Page 1 of 1 Neville, Elizabeth From: Hulse, Lori Sent: Monday, December 03, 2007 10:28 AM To: Neville, Elizabeth Subject: RE: Yes. The chapters (as of this moment) are: 100 and 37. Thanks! L From: Neville, Elizabeth Sent: Thursday, November 29, 2007 3:47 PM To: Hulse, Lori Subject: RE: A specific Chapter? Elizabeth A.Neville South old Town Clerk PO Box 1179 Southold, NY 11971 Tel 631 765-1800 Fax 631 765-6145 From: Hulse, Lori Sent: Thursday, November 29, 2007 3:44 PM To: Neville, Elizabeth Subject: Hi Betty, I am on trial in Southampton, and the Judge has requested a copy of the Town Code that was in effect in October 2003. Could I get a copy to give to the Court while this case is pending? Thanks, Lori 12/4/2007 12/03/2007 21:17 6312617454 . B LAING ASSOC lie: fr! ./~ 7 7;3'> PAGE 01/01 Page 1 of I Subject From Date To R:::::: i'/:;) TOWN BOARD MEETING DECEMBER 4, .2007 < bla I ngassoc@optonline.net> Tuesday, December 4, 20078: 10 am E.Neville@town,southold.ny.us , ~) I . .'"' Jil, " 7 ~ PLEASE FORWARD TO THE TOWN BOARD AS THEY HAVE NO DIRECT CONTACT EMAIL THAT I COULD FIND ON THE WEB SITE. S.:!!,f" , t! 1": :" ~t~ ~{ My wife and I object to the proposed changes In the Town Trustees' regulations. They already have too much power over private lands; do not give them more. They are choking off our retirement in Southold by reducing oUr bUidlabe area step by step to a postage stamp size! WE CAN NOT PUT A 30 FOOT BUFFER (MANDATORY) ON OUR PORPERTY AND STILL GET A DECENT SIZE HOUSE. TO PARAPHRASE OUR RECENT LETTER TO THE TRUSTEES: "As a practical matter, a reduction in coverage Is will provide an area too small to proVide for a modern home's foot print, particularly for retirement. My wife and I wish to retire on our waterfront property in Southold, A re-constructed home ~ have a garage, kitchen (with mud room & storage), utility room, one bedroom, living room, dining room and kitchen on the first floor. All steps, doorways and life requirements must be aCcessible to a wheel-chair bound Indivldual.o..o...!lJ.~J..f[Q.oJ:, We have a 11,000 square foot lot from 1954; there is R~ such facilities can fit with a 3,000 to square foot, reduced foot print on the lot! If you go to a mandatory 30 foot buffer, you have taken our retirement home from us and our benefit to the Town in terms of general welfare, economics and ta>:es. Finally, there Is no need for this change. Long Island Is sandy! Dry wells and other infiltration features can readily control storm runoff from Impervious surfaces created on a lot with development Coverage. Further, roof drainage Is "clean" aver timel What exactly are you attempting to mitigate Or prevent? The technology of modern Infiltration devices more than provides such mitigation. To close, do not take OUr collective property and specific our retirement from us/me (and do not do So for reasons that can be mitigated). A reduction and allowed coverage due to a mandatory 30 foot "buffer" Wll be a taking of our/my property without just Compensation. I Implore yoU not to do so." The waterfront residential community is an economic engine in the Town. We have disposable income. If you drive us away by over-regulation, the Town's eConomy will also suffer. Bontje 71 Nautilus Ave. Northport, New York 11768 631 261 7170 631 2617454 FAX https://webmail,optimum.l1etlprint.html 12/4/2007 . hl~ ~ 1:3S /"y~Z The Nature Conservancy on Long Island Center for Conservation P. O. Box 5125 142 Rt. 114 East Hampton, NY 11937 The Nature ~:~j Conservancy ~ - Protecting natute. Prc<:>efving: life' November 30, 2007 RECEIVi:D Jln uS 1771l1'-- DEe 3 2807 Southold Town Board 53095 Route 25 P.O. Box 1179 Southold, New York 11971 SoulhClld TC.ViD Clerk Re: Chapter 275 - Additional Proposed Amendments Honorable Members ofthe Town Board: In connection with your review of the Chapter 275 revisions proposed by the Board of Trustees, and in the interest of avoiding piecemeal consideration of changes to the wetlands code, please consider the attached additional amendments drafted by our staff along with an excellent summary of the research supporting the importance of wetland nondisturbance buffers prepared by the Office of Long Island Sound Programs of the State of Connecticut. As stated in our letter of October 22, we applaud the Town for taking the initiative to improve the protection of wetlands and understand that the Trustees have already suggested changes to the existing law. We fully support the Trustees' proposals to increase the penalties for noncompliance with Chapter 275. We also support the Trustees' effort to promote native vegetation by exempting the "use of non-invasive native species of vegetation" from regulation. However, the Town Board should take this opportunity also to consider the L WRP Coordinating Council recommendations that were offered in August. We have taken the liberty of trying to convert a number of the L WRP CC recommendations into code language, along with some of our own suggestions based on research data and the effective wetlands management experiences of other towns on Long Island. We fully recognize that developing code is and should be a public process with input from all concerned. Our aim is to help the Town commence that dialogue by undertaking the tedious task of turning good ideas into specific regulatory "do's" and "don'ts." As the Town's LWRP report points out, Southold is moving increasingly to a year-round residential community from an agricultural and second home community, which means that more pressure to expand existing dwellings, and more impacts on natural resources, are inevitable. To safeguard water quality, fisheries, storm protection and all the other ecosystem services offered by wetlands, we believe the Town needs additional tools to widen nondisturbance buffers and direct development away from wetlands. . . The attached amendments are designed to strengthen the Trustees' efforts to protect Southold's wetlands in the following ways: . Increase Trustee jurisdiction to 200 feet. This would give the Town notice of projects proposed within 200 feet of wetlands and allow the Town to ensure that meaningful buffers surround wetlands when vacant land is proposed to be developed or changes are proposed to lots already developed. Research shows that buffers of 100 feet protect a wetland from 81 % of total suspended solids, 89% of sediment, 89.5% of nitrogen and 82% of phosphorous (according to the CT Office of Long Island Sound Programs). Yet a 100-foot buffer is impossible to achieve if wetlands jurisdiction itself is only 100 feet, as currently is the case. Jurisdiction of200 feet would allow wider buffers on lots with depth greater than 100 feet from a wetland, of which there are many in Southold. We estimate, however, that the number of previously unregulated lots that would become regulated under this change is small-less than 750 of the approximately 12,500 lots not currently subject to wetlands jurisdiction. · Increase minimum setbacks, with greater setbacks in critical environmental areas, subject all structures (including decks) to the setback requirements, and distinguish between pervious and impervious surfaces for setback purposes. The minimum nondisturbance buffer should be 50 feet - and 100 feet in critical environmental areas. We strongly believe that it would be a step in the wrong direction to adopt the Trustees' recommended 3D-foot minimum. That would make it much more difficult for the Town to move toward the ideal I DO-foot standard supported by research. It is far preferable to make a stronger law based on the scientific evidence, and offer relief to individuals who demonstrate no practicable alternative and agree to mitigation. · Revise the administrative permit system to apply where the existing and proposed development meets the minimum setbacks. not just in the limited circumstances described in the current Chapter 275. We propose that administrative permit review be conducted by a qualified member of the Town's staff - an environmental analyst. This procedure works extremely well in Southampton and would bring to Southold the same benefits of ease of administration, greater certainty for landowners, better protection for wetlands, and a reduced number of variance requests in return for expedited processing. This reform would also have the benefit of culling the "easy" applications from the more challenging ones, reserving the latter for the Trustees, where their time and experience most matter, a public hearing should be held because deviations from setback requirements are being requested, and discretion must be exercised. · Require applicants proposing to deviate from setback requirements to demonstrate no practicable alternative and, as a condition of receiving relief, require mitigation in a manner set forth in the law, ~, by widening an existing nondisturbance buffer, creating one where none exists, relocating structures or septic systems further from the wetlands, or paying into a compensation fund to preserve existing wetlands located elsewhere in the Town. (Giving the Town a strong tool to promote relocation of septic systems would directly address the statement in the Town's LWRP that "[o]fparticular concern along the waterfront is the location of c. . . . septic tanks too close to the water's edge. Many older homes have been permitted to expand without being required to relocate their septic systems or leaching fields away from the water's edge." See Section C. Land Use, at page 5). We do not agree with the Trustees' proposed amendment defining "mitigation" narrowly and making it discretionary. Require permits issued by the Trustees and granting deviations from setbacks to specify the type of mitigation imposed. Require all paperwork related to applications for Trustee permits (i.e., those going to public hearing, as opposed to administrative permits reviewed by the staff) to be completed 30 days before the public hearing to provide for meaningful public review and comment. Require administrative permits for certain types of operations currently exempted, such as access to and from sites to conduct environmental testing, or cutting phragmites. These activities have the potential to disturb natural resources and are regulated in other towns. Southold should have notice of such activities in order to ensure that they are undertaken with minimal impact. In this regard, we agree with the Trustees that placement of in-ground gas tanks should not be exempt, but the setback should be at least 50 feet, not the 25 feet stated in the Trustees' proposed amendment, and more in a critical environmental area. Provide for the flagging of wetlands by the Town, as is done in East Hampton, Southampton and Brookhaven. Separate the Town's regulation of coastal erosion structures and docks from its regulation of development on land near the wetland. Many towns have a separate dock and shore-hardening code and we believe Southold should follow that model. The aim of Chapter 275 should be to achieve the largest practicable buffers around wetlands. That is a different objective from determining when the shoreline itself can be modified through construction of a dock, bulkhead or revetment. We note that many coastal communities from Maine to Florida are paying special attention to their natural shorelines based on the accumulating evidence that shoreline hardening often does more harm than good. Dealing with these issues in a separate code section is logical, and elevates them to an appropriate level of importance. Hence our proposed revisions to Chapter 275 omit the dock and bulkhead sections and related definitions; we suggest the Trustee amendments addressing these topics likewise be dealt with separately. . . . As stated in our previous letter, we believe amendments along the lines of those proposed herewith will bring more precision and uniformity to Chapter 275, which in turn will advance the Town's important work on its own and with the New York Department of State to preserve coastal resources. One issue not dealt with in our amendments, nor in existing Chapter 275, is application of setbacks and other wetland provisions to commercial properties. As currently written, Chapter 275 applies to residential properties only. However, commercial properties should not be exempt from the wetlands code. As it considers implementation of the LWRP CC report and strengthening of the wetland laws, the Town Board should determine how best to ensure that commercial properties are designed with adequate setbacks and buffers. . .' . . . To reiterate, we offer these proposals in the spirit of dialogue among the Town Board, Trustees, L WRP Coordinating Council, and the public about how to protect wetlands effectively. We note that the vast majority of the measures contained in these proposed amendments merely translate provisions of South old Town's LWRP into enforceable code. Accordingly, these are concepts that the Town has already espoused; it only needs to take the next step and write these concepts into law. We respectfully suggest that the Town Board defer consideration of the Trustee amendments until such time as the enclosed effort to codify the L WRP CC report can be considered alongside the Trustee proposals. Respectfully submitted, /1Nl~~ Marian Lindberg Conservation Finance & Poli A- --- . '1kN.dwc~WVtlM~ (lLi~{) 32-1.3"1 111:>0101 Chapter 275: WETLANDS AND SHORELINE [HISTORY: Adopted by the Town Board of the Town of Southold 2-24-2004 by LL No. 6-2004. Amendments noted where applicable.] GENERAL REFERENCES Notice of public hearings - See Ch. 55. Boats, docks and wharves - See Ch. 96. Coastal erosion - See Ch. 111. Environmental quality review - See Ch. 130. Flood drainage prevention - See Ch. 148. Shellfish - See Ch. 219. Soil removal- See Ch. 228. Subdivision of land - See Ch. 240. Zoning - See Ch. 280. ARTICLE I General Provisions ~ 275-1. Title. This chapter shall be known and may be cited as the "Wetlands Law of the Town of Southold." ~ 275-2. Definitions; word usage. A For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. ACCESSORY STRUCTURE - A building or structure detached from a principal buiiding located on the same lot as and customarily incidental and subordinate to the principal building. ADMINISTRATIVE WETLANDS PERMIT -A written permit siqned bv the Environmental Analvst. issued In response to a written request to conduct operations as defined and requlated herein. when such operations would result in no deviations from the setback requirements and other standards set forth in Section 275-3 and are otherwise. intended to provide 3n expediteG-feviewfor projects th3t 3m EleerneG-consistent with the provisions of Chapter 275.Trustee's pollG'f mg3rdlng protectifm-Gf-wellanG ffiSOOfGB& AESTHETICS - The natural intrinsic appearance of a site or object in the context of surrounding land use, views, viewsheds and vistas important to the community. AGRICULTURE - The production, keeping or maintenance, for sale, lease or personal use, of all plants and animals useful to man, including but not limited to forages and sod crops; grains and seed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats or any mutation of hybrids thereof, including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; fruits of all kinds, including grapes, nuts and berries, vegetables; floral, ornamental and greenhouse products; or lands devoted to a soil conservation or forestry management program. APPLICANT - The party applying for permits or other approval pursuant to Chapter 275. APPLICATION - The completed form or forms and all accompanying documents, exhibits, and fees required of an applicant pursuant to Chapter 275. AQUACULTURE - The raising or cultivation of nursery spawn shellfish in artificial containment systems in, on or off bottom. AS-BUILT PLANS - Plans prepared to scale by a licensed surveyor detailing any and all operations conducted according to a valid permit. . . BAY - Cutchogue Harbor, Gidds Bay, Great Peconic Bay, Hallocks Bay, Hog Neck Bay, Little Peconic Bay, Long Beach Bay, Orient Harbor and Southold Bay. BEACH - The zone of unconsolidated earth that 'extends landward from the mean low water line to the seaward toe of a dune or bluff, or whichever is most seaward. Where no dune or bluff exists landward of a beach, the landward limit of a beach is 100 feet landward from the place where there is a marked change in material or physiographic form from the line of permanent vegetation, whichever is most seaward. Shorelands subject to seasonal or frequent overwash or inundation are considered to be beaches. BLUFF - Any bank or cliff with a precipitous or steeply sloped face adjoining a beach or a body of water. The waterward limit of a bluff is the landward limit of its waterward natural protective feature. Where no beach is present, the waterward limit of a bluff is mean low water. The landward limit is 25 feet landward of the receding edge or, in those cases where there is no discernible line of active erosion, 25 feet landward of the point of inflection on the top of the bluff. The point of inflection is that point along the top of the bluff where the trend of the land slope changes to begin its descent to the shoreline. BLUFF LINE - The landward limit of a bluff that is 25 feet landward of the receding edge or, in those cases where there is no discernible line of active erosion, 25 feet landward of the point of inflection on the top of the bluff. The point of inflection is that point along the top of the bluff where the trend of the land slope changes to begin its descent to the shoreline. BOARD - Unless otherwise indicated, the Board of Trustees of the Town of Southold. BGAl'iVESSEL Any floClting object cClpClblo of GaffyiAfl.peeflle ClS Cl meClns el-lranSj:lGftCltion In water, ""cluding Cln :JirplClno cCl~a9le of IClnding on wClter clS woll-a&<lny floClting stFtIBwr-e-~ Goosiderod to bo pClrt of;) dock structure as defined horoin,-with or without mO:Jns ei-propulslon,lABt GCln bo moored indopendently or CCln bo secured by any moans to a pilingc-dock, bulkho:Jd, greffl-.-er othor fixod -device located abo'/e 0, bolow mean high wCllor. ThiS definition excludes floCltillff~ BUFFER AREA - A defined area landward of a wetland boundary, coastal erosion hazard line or bluff line measured as a linear distance, perpendicular to said boundary. BULKHEAD 1\ structure or bClrrier, the intended use lor whlch~~Ad-aGt<l&-a {)amef botwoon o:Jrthen mate'iClI and wator. This deImitieA--excludos gClbions Clnd revotmeRl& CATW,^,LK An olovate4wCllk't/ClY, usuCllly built to gClin clCCOSS to cl cemmerclClI or residentiakleGk-c built Clt Cllixod hoight Clbove grCldo :Jnd which is constructed IClndwClrd of-tho high wCltor mClrk- CLEARING - Cutting down, felling, thinning, logging or removing, killing, destroying, poisoning, ring barking, uprooting or burning vegetation, severing, topping or lopping branches, limbs, stems or trunks or substantially damaging or injuring in other ways that would cause or contribute to the death oraffect the survivability and grow1h of vegetation. This definition also includes removal of dead and dying vegetation. CLERK - Unless otherwise indicated, the Clerk of the Board of Trustees. COASTAL EROSION HAZARD LINE - The landward boundary of the Coastal Erosion Hazard Area defined by Article 34 of the New York State Environmental Conservation Law. COMMERCIAL AGRICULTURE - Agriculture (See above.) intended to earn an income GOMME-RCll\L DOCK I\ny cCltwClII<, fi)(ed-eHleating dock or extension of such,dosignod,tlsed and/or Intor\ded for use other thCln clS cl residentiClI dock, clS defined-if1-lhis cM~ CONSERVATION - Protection in natural or existing condition. CONSTRUCTION AND DEMOLITION (C & D) DEBRIS - Includes, but is not limited to, waste cement, concrete, masonry work, brick, tile, sheetrock, plaster, wood shingles and the like and rubble resulting from remodeling, demolition, repair and building of structures. [Added 10-11-2005 by LL No. 17-2005J . . CREEKS - Broadwaters Cove, Brushes Creek, Budd's Pond, Cedar Beach Creek, Corey Creek, Dam Pond, Deep Hole Creek, Down's Creek, East Creek, East Harbor, Goose Creek, Goldsmiths Inlet, Gull Pond, Hallock's Bay, Halls Creek, Hashamomuck Creek, Haywaters Cove, James Creek, Jockey Creek, Little Creek, Long Beach Bay, Mattituck Creek, Mattituck Inlet, Mud Creek, Paradise Point Creek, Pipes Neck Creek, Richmond Creek, Town Creek, West Creek, West Harbor, West Lake, Wickham Creek, Wunnewata Lagoon and Wunnewata Pond. CRITICAL ENVIRONMENTAL AREAS - All sites desiqnated as Critical Natural Resource Areas in the Town's Local Water Revitalization Plan includinq but not limited to Hashamomuck Pond and the Arshamomuck wetland complex, the two reqionally siqnificant ecoloqical complexes within Southold desiqnated by the US Fish and Wildlife Service (North Fork Beach Complex which Includes 22 individual areas of reqional fish or wildlife siqnificance, and the Orient Point - Islands Complex) and the 19 areas within the Town desiqnated as Siqnif,cant Coastal Fish and Wildlife Habitats by the previously nominated by the Town of Southold and designated by the New York Sate Department of ~state as Cnticol Environmental Neas worthy of protection including: Mattltuck Inlet Wetland Onent Harbor Lonq Beach Bay Plum Gut, Great Gull Island, Conklinq Point Port of Eqypt Island, Jockey Creek Spoil Area, Cedar Beach Point. Corey Creek Richmond Creek and Beach Little Creek and Beach, Cutchoque Harbor Wetlands, Robins Island Downs Creek The Race Fishers Island Beaches Pine Islands as well as G<ltGlwgye..J9afoor Wetlands, Hallock's Bay, Dam Pond, Downs Gfeek, Orient Creek, West Creek, Richmooe Creek and Beach,. Brush's Creek, Cedar Beach Creek, CoreyGfeek; Deep Hole Creek, Goldsmiths Inlet, Halls Creek, Goose Creek, hlttl€--Cfeek, Mill Creek and Pipes Cove Creek and any other locations documented by the New York Natural Heritaqe Proqram as habitat for rare and endanqered plants and animals and/or rare ecoloqical communitles.c DECK - A structure and/or platform without a roof that is either freestanding or attached to a building supported by pillars and/or posts constructed of various materials. DECKING - Horizontal structural components of a dock, deck, pier or other shoreline structure intended to be walked upon. OOGK- .I\ny permanent or wasonal str1JSluf€,except a buildir19,J0cate4-Br voposedt~be located on lands abutting or comprised of freshwater or tidal wetlands or connectedt~abulkhead or.\he UjdJafl4a.fK1.-extending over the water's surklee, designed to secure vessels.aOO'I'f~.from lfl-e shor&to-a body of water.-f-BHM purpose of this chapter, this term shall-also include.tM associated structures necessory-lo-Gfoss wotlands and-adpcent natura' afeas,Th&tefm-"tIoGk" lf1B1H4e&the terms "wharves,".'i*'rs,'''''fixed docksiC~"''fjoats'' er"G.atwalks.." DOGKLE~IGTH The length of a dock, including all fixecHioGks, ramps, floatlng-deGks and moor-mg f'lles,.as measureG-from the most landward portion of the struGture to the-seaw8fG-most portion of lfl-e OOGk-.of the seaward most mooring pile, whichever distance-is-greater. DUNE - A ridge or hill of loose, windblown or artificially placed earth, the principal component of which is sand. EROSION CONTROL - Actions taken or structures installed to prevent the wearing away of the land or loss of soil by the action of water, ice or wind. Erosion control typically relates to stabilization of unvegetated soils resulting from excavation, grading, stockpiling, construction or other activities. FiXE.Q.QOCK I\n elevated walkway which is constructed at a fixed height above grade and which extends.seawaffi from the high-water marl, or ~ I::mdwarct HOAT/NG.GGGK-Afly structure, raft or floating platform wl1lch "s desigMd-lo-ftoatujJOl1-the surfaG&of a water body and is wcured in place by poles, pilings, anchors, or any other typo G.f mooring system that provides access to the water. A floating dock includes the float itself 8f\d.afly f'ilir1gs or moori"g. system designed to keep the dock at a fixed point FUNCTION/\L BULKHEAD A bulkhead that is at least 75% physically Intact.ang..~-the ~ses fDr which it was designed F~L JETTY/GROIN A Jetty or groin that is at least 750~ physlcatty.intact and serv"'!}-the pUfjJOses forwhiGh it was designed . . . G.^.BION ^ shorolino structure com:isting of stone and/or rock enclosed in a mesh cago or similar. desi9flod to stabilizo soil or sediments. GROIN ^ m::m mage sarrior perpendicular to the shoreline used to change the natural littoral drift. preveRl-efOsion, maintain inlet entrances, or protect an area from wave onergy. Seo "Jetty." HABITAT - The place where a plant or animal species naturally lives and grows; or characteristics of the soil, water, and biologic community (other plants and animals) that make this possible. HABITAT FRAGMENTATION - Destruction or impairment of habitat such that it results in breaks in areas of contiguous habitat. Habitat fragmentation can also cause a greater distance between adjacent (noncontiguous) habitats. These actions prevent the transfer of organisms, natural materials and energy within a habitat. Habitat fragmentation can result from the placement of physical barriers within a contiguous habitat or between adjacent habitats, but can also occur as a result of removal of vegetative cover, changes in sediment characteristics and/or changes in hydrology. HARVESTING - The gathering or collecting of natural resources and organisms. HOMEOWNERS' OR HOMES ASSOCIATION - A community association, including a condominium association, which is organized in a residential development in which individual owners have a shared interest in the responsibility for open space or facilities. [Added 10-11-2005 by L.L. No. 17-2005] HORTICULTURE - The raising of plants. (See "agriculture.") IMMEDIATE PROJECT AREA - The minimum area required to allow access to the site by the machinery conducting the operation. IMPERVIOUS SURFACE - Any hard-surfaced, man-made area that does not retain or absorb water, including but not limited to building roofs, paved parking lots and driveways, sidewalks and other paved areas. JETTY ^ man made barner perpendicular to tho shoreline usod to chango ~lffi>l-littoral drift, prevent eroSion, maintain Inlot ontrancos, or protoct an aroa from wavo on~ee "groin" LANDWARD -In the opposite direction from the water or wetland. LOV\' PROFILE JETTIES The definition of a low profile jetty is site speCific, but typically is a structure no higher than 18 inches to 24 inches above existing soil or sedimont grado. L~-b-BULKHE.^.D II, subtidal structure designed to stabilize the toe of a slopo or sh0ffi-3AG often associated with boat basins or other na'/igable waterways. MAINTENANCE DREDGING - A dredging project will be considered maintenance dredging if there is documentary evidence that it has been previously dredged. MAN-MADE POND - A constructed inland body of water, including, but not limited to, lined and unlined irrigation ponds and ornamental ponds. MARINA - Any dock, pier or other facility operated for profit, or to which public patronage is invited, providing moorings, dockage or other marine services primarily for power and sailing yachts, launches or other watercraft, other than floating homes, and which may also be capable of removing any and all watercraft moored or docked within the marina from the water for repair and/or storage. MATERIAL - Soil, sand, stone, gravel, clay, bog, peat, mud or any other material, including liquids, organic or inorganic. [Amended 10-11-2005 by L.L. No. 17-2005] MEAN HIGH WATER (MHW) - The average of all the water heights observed over the most previous nineteen-year period. MEAN LOW WATER (MLW) - The average of all the low heights observed over the most previous nineteen-year period. MITIGATION - Actions taken to avoid. reduce, or compensate for the effects of environmental damaGe In descendinG order pf preference. forms of mitiGation include 1) AvoidinG the impact . . . altoqether bv not takinq a certain action or parts of an action: 2) Minimlzinq impact bv limitinq the deqree or maqnitude of the action and its implementation 3) Rectifvinq the impact bv repairinq rehabilltatlnq or restorinq the affected environment 4) Reducinq or eliminatinq the impact over time bv preservation and maintenance operations durinq the life of the action; 5) Compensatlnq for the Impact throuqh payments into a compensation fund used to purchase and preserve existlnq wetlands havlnq similar functions of equal or qreater ecoloqical value to those adverse Iv affected This form of mitiGation must be based on an understandinq of the ecoloGical complexitv of wetlands, their relationshiP tD the landscape, and the fact that wetland functions may not be dlrectlv related to acreaqe Compensatinq for the adverse impacts to wetland resources should Dnlv be considered as the last alternative, and onlv if there are no less environmentallv damaqinq feasible alternatives, MO~IOP~IZE The use f{)r an unreasonable period of time to the oxclusion of othors Dr tD unronsonnbly mstrict or obstruct the use of nny public bulkhead, dock or Inndmg Dwned Dr contrelleEl by,he-l<Jwn of SDuthold, MGGRING-AochDring lor gmnter thnn 24 hours, NATIVE VEGETATION - All species of plants naturallv occurrrnq, either presentlv or historical Iv in a particular ecosvstem within the Town of Southold, "Naturallv Dccurrinq" species are IndiGenous to a reGiDn i,e, were not introduced bv humans NON DISTURBANCE BUFFER - An area, the tvpical dimensions of which are set forth In Section 275-3,D,typicnlly 50 feet wide, immediately landward of the wetland boundary, shoreline structure, or Dther line designated by the Trustees where no operations, maintenance or other activities can take place, A nondisturbance buffer planted with native veqetation is preferred, Where land adjacent to a wetland boundarv has previouslv been cleared, a veqetated nondisturbance buffer can be created thrDUqh proactive restoration either voluntarilv or thrDUqh mitiqation required bv the Trustees pursuant tD SectlDn 275-3,F in response to an application to conduct DPerations qDverned bv thiS Chapter NON FERTILIZER - Not to include the use of fertilizers of any type, [Added 10-11-2005 by L.L. No. 17-2005) NONTURF BUFFER - Any pervious material allowing for percDlation of surface runoff into the soil. Examples include: natural vegetation, wood chips, mulch, gravel, and sand, Decks mny be allowod if they-am level or pitched awny frDm the wnter, nro porvious tD precipitation and nre constructed of mnterinls other thnn treated lumbor, Any ::ln~aU-flH'\OO-genernted by such structures must-b&allewed to percolate into tho ground directly below tho strUBltlfe-Fertilizers may not be used within the nonturf buffer area, OPERATIONS [Amended 10-11-2005 by L.L. No. 17-2005) (1) The removal of material from wetlands or otherwise within Trustee jurisdiction, (2) The deposit or discharge of material on wetlands or otherwise within Trustee jurisdiction, (3) The deposit or discharge of material on any area that results in the transport of said materials into wetlands or otherwise within Trustee jurisdiction, (4) The erection, construction, alteration or enlargement of any building, dock, pier, wharf, bulkhead, jetty, groin or other structure, temporary or permanent, on wetlands, or otherwise within Trustee jurisdiction, (5) ClearinqRemoving or otherwise affecting the growth of plants in wetlands or otherwise within Trustee jurisdiction, . . , ORDINARY AND USUAL MAINTENANCE - Actions which are required to preserve in a condition or state of equivalent quality to that which was approved or required by permit. ORIGINAL STRUCTURE - The earliest known, permitted or otherwise documented structure. PATENT LANDS - All uplands and underwater lands owned in fee tille by the Trustees by virtue of the Andros Patent (October 31, 1676). PEAK LUNAR TIDES - Those excessively high tides or spring tides caused by lunar gravitational phenomena. PERSON - Any individual, any combination of individuals, firm, partnership, association, society, corporation, joint-stock company, company, organization or other legal entity of any kind, including municipal corporations or governmental agencies or subdivisions thereof PIER A.fixed structure to securo vessels, unl03ding or 10:ldmg persons-Bf-i*Bj>eft-y or proViding access to tRe w3tor, Sea "wh3rf." ~ The :lVer3ge sa3w:lrd projection of ona or moro existing parmittod docks, piers, wh3rves or fIO:lts. Tha 3ver3ge se3wmd projection is C3lcul:lted by adding-the-leH9th of:lll doclls within tha immedi:lta :lre3 3nd eividing by tha numl3ar of said docks PLATFORM - See "deck," POND - An inland body of water. PRACTICABLE ALTERNATIVE - An alternative which is both available to the applicant and capable of fulfillinq the overall purpose of the proposed operation. "Available and capable of fulfillinq the overall purpose" means the alternative is obtainable and feasible, in terms of reasonable costs existinG technoloqy and best available measures'(i.e. most up-to-date technoloGY or the best desiqns, measures or enGineerinq practices that have been developed or are commercially available) proposed use and purpose of the operation, "Operation purpose" shall be defined Generally (eq., construction of a sinGle-family home). The reason for evaluatinG practicable alternatives shall be to locate activities so that impacts to the wetland are avoided to the maximum extent practicable The practicable alternative analysis may reduce the scale of the operation, consistent With the operation purpose, proposed use and permit issuance standards set forth in Chapter 275 PREEXISTING NONPERMITTED AND/OR NONCONFORMING STRUCTURES - A structure, use or lot that is not otherwise permitted but which is allowed to continue solely because it was lawfully existing prior to the effective date of the original law or ordinance or prior to any subsequent amendment, as the case may be. Any determination of lawful existence must at least include a review of prior land use laws and ordinances, PROACTIVE RESTORATION - Restoration undertaken solely for the benefit of the natural environment and not associated with compensatory mitigation or other regulatory requirements. Proactive restoration typically includes planting of beneficial native vegetation (i.e., vegetative enhancement) in a natural setting at a time, place and in a position that are conducive to future survival and growth, RESIDENTIAL - Associated with a single- or multiple-family home, apartment or condominium, excluding marinas and public property. R€SIDENTI/\L DOCK /\ny c3tw3lk, fixea aock and/or flo:lting dock designod or constructed 3S :l continuous unit to provide accass to tha surf3ca w3ters from 0 lot th:lt is zonad for rosldenti:ll uso Tha tefm~all includa :lll aSEOci:ltad~tHlBture&-SlJGA--as-fafflj}S :lnd mooring pfle&- RESIDENTIAL HORTICULTURE - The raising of plants for ornamental purposes on residential lots, RESOURCE BUFFER AREA - A buffer area with specific quantifiable natural resource value, RETAINING-WAl-b---A-bulkhead landward of tha watl3nd bound:lry, REVETM€NT- A shorelme-harde-n!Rg~truGtUfe-13ndw:Jrd of tha wall3nd bound:Jry typic311y . . conctructod of rocl< or clone. Soe "g3bion. " RIPRAP - A layer, facing or protective mound of rubble or stones randomly placed to prevent erosion, scour, or sloughing of a structure or embankment; also the stone used for this purpose. SETBACK - The minimum distance by which any buiiding, structure or operations must be separated from a wetland boundary, coastal erosion hazard line or bluff line. :;;HEI\THI~JG Vertic31 ctrUBtur31 componentc of 3 bulkhe3d or relaifliAj) 1'1311 nococ5afy-l<Keep--selI aflG-sodimont from paccing through the clructure. SHORELINE STRUCTURE - Any intentionally constructed structure on the shore composed of man- made or natural materials. See "structure." SILT BOOM - A structure deployed within the water column that is designed to prevent passage of suspended sediments and contaminants from spreading from the immediate project area to surrounding waters. Properly installed, silt booms completely surround the project area. SOUND - Long Island Sound, Fishers Island Sound and Block Island Sound SPAWNER SANCTUARY - An area of bottom designated by the Trustees for the purpose of protecting and enhancing shellfish populations for a specific period of time. SPLIT-RAIL FENCE - A linear fence structure composed of posts and rails. STRUCTURAL COMPONENTS - Pilings, deadmen, rails, whalers and other significant components used to hold together and anchor docks, piers, wharves, jetties, groins and other shoreline structures. STRUCTURE - Any object constructed, installed or placed in, on or under land or water, including but not limited to a building; permanent shed; deck; in-ground and aboveground pool; garage; mobile home; road; public service distribution, transmission or collection system; tank; dock; pier; wharf; groin; jetty; seawall; bulkhead; breakwater; revetment; artificial beach nourishment; boat rack; trellis; arbor; gazebo; walkway; statue; sculpture; stairs; or any addition to or alteration of the same. [Amended 10-11-2005 by L.L. No. 17-2005] SUBTIDAL - Existing at or below mean low water. TIDAL WATERS - All waters bordering on or within the boundaries of the Town of Southold subject to fluctuation in depth from peak lunar, storm or normal tidal action,and including, but not limited to, all brackish and salt waters of streams, ponds, creeks, estuaries, sounds, bays and inlets. TOWN - The Town of Southold. TOWN WATERS -All the waters lying over patent lands. (See definition.) TROPICAL HARDWOOD - Any of a number of species of hardwood harvested from areas situated in the tropics (the region on either side of the equator). TRUSTEES - The Board ofTrustees of the Town of Southold. VEGETATED WETLANDS - Any and all wetland types supporting or capable of supporting emergent, submerged or floating-leaved vegetation as described in S 275-2, "wetlands (freshwater)" and "wetlands (tidal)." W,A,LER Structur:J1 member of 3 bulkhoad uced to hold #le- che3lhing behioo.tfle-f}ilings..N&maUy tlie+e-are top 3nd bottom w3lerc. WATER-DEPENDENT USES - An activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water. The uses include, but are not limited to commercial and recreational fishing and boating facilities, finfish and shellfish processing, fish storage and retail and wholesale fish marketing facilities, waterfront dock facilities, shipyards and boat-building facilities, navigation aides, basins and channels, industrial uses dependent upon waterborne transportation or requiring large volumes of cooling or processing water and which cannot reasonably be located or . . , operated at an inland site, and uses which primarily provide general public access to marine or tidal waters. WETLAND BOUNDARY OR BOUNDARIES OF WETLAND - Wetland ecosystems generally possess three essential characteristics: (1) hydrophytic vegetation, (2) hydric soils, and wetland hydrology The wetland indicator status of all plants can be found in the National List of Plants that Occur in Wetlands (USFWS). The wetland boundary is most easily determined by defining the outer limit of the vegetation specified in the definition of "freshwater, brackish or tidal wetlands." The wetland boundary is to be defined and flagged at the point where existing wetland indicator species no longer have a competitive advantage over upland species. Wetland and upland plants will mix together at this transition zone. For freshwater wetlands that frequently lack standing water (shrub swamps, deciduous swamps, coniferous swamps and wet meadows), vegetation alone may not be adequately diagnostic for identification of a wetland boundary. In these wetland types, field verification of wetland hydrology and/or hydric soils might be required to define the boundary. The methodology used to determine this boundary shall be the same methodology utilized in the New York State Department of Environmental Conservation (NYSDEC) Technical Methods Statement relating to the Freshwater Wetlands Act. WETLANDS (FRESHWATER) [Amended 10-11-2005 by L.L. No. 17-2005] (1) "Freshwater wetlands" as defined in Article 24, Title 1, ~ 24-0107, Subdivisions 1(a) to 1(d) inclusive, of the Environmental Conservation Law of the State of New York; or (2) All lands and waters in the Town includinq but not limited to Patent Lands which contain any or all of the following: (a) Lands and submerged lands commonly called "marshes," "swamps," "sloughs," "bogs" and "flats" supporting aquatic or semiaquatic vegetation of the following types: [1] Wetland trees which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others, red maple (Acer rubrum), willows (Salix spp.), black spruce (Picea mariana); swamp white oak (Quercus bicolor), red ash (Fraxinum pennsylvanica), black ash (Fraxinus nigra), silver maple (Acer saccharinum), American elm (Ulmus americana) and larch (Larix laricina); [2] Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder (Alnus spp.), button bush (Cephalanthus occidentalis), common winterberry (flex vertic illata) leatherleaf (Chamaedaphne calyculata), and swamp azalea (Rhododendron viscosum); [3] Emergent vegetation, including, among others, cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra virginica), arrowheads (Sagittaria spp.), common reed (Phragmites australis), wild rice (Zizania aquatica), bur-reeds (Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticillatus) and water plantain (Alisma plantago-aquatica); [4] Rooted, floating-leaved vegetation, including, among others, water-lily (Nymphaea odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar spp.); [5] Free-floating vegetation, including, among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.); [6] Wet-meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other open land vegetation, including, among others, sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticil latus) and spikerush (Eleocharis . . , spp.); [7] Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenis purpurea) and cranberries (Vaccinium macrocarpon and V. oxycoccos); or [8] Submergent vegetation, including, among others, pondweeds (Potamogeton spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria americana), coontail (Ceratophyllum demersum), water milfoils (Myriophyllum spp.), muskgrass (Chart: spp.), stonewort (Nitella spp.), water weeds (Elodea spp.) and water smartweed (Polygonum amphibium). (b) lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet and provided further that such conditions can be expected to persist indefinitely, barring human intervention. (c) lands and waters substantially enclosed by aquatic or semiaquatic vegetation as set forth in Subsection (2)(a) or be dead vegetation as set forth in Subsection (2)(b), the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation. (d) The waters overlying the areas set forth in Subsection (2)(a) and (b) and the lands underlying Subsection (2)(c). WETLANDS (TIDAL) (1) All lands. includinq but not limited to Patent lands, generally covered or intermittently covered with, or which border on, tidal waters, or lands lying beneath tidal waters, which at mean low tide are covered by tidal waters to a maximum depth of five feet, including but not limited to banks, bogs, salt marsh, swamps, meadows, flats or other low-lying lands subject to tidal action; (2) All banks, bogs, meadows, flats and tidal marsh includinq but not limited to Patent Lands subject to such tides and upon which grows or may grow some or any of the following: smooth cordgrass (Spartina alterniflora), salt hay grass (Spartina patens), black grass (Juncus gerardii), saltworts (Salicornia spp.), sea lavender (Limoneum spp.), marsh elder (lva frutescens), groundsel (Baccharis halimfolia), marshmallow (Hibiscus spp.) VVH/\RF <>ee "pier. " WIDTH OF CREEK - The distance across a creek from mean low water to mean low water, perpendicular to the main channel directly in front of the subject parcel. B. When not inconsistent with the context, words in the present tense include the future; words used in the plural number include the singular number; and words used in the singular number include the plural number. The word "shall" is always mandatory and not directory. ~ 275-3. Findings; purpose; jurisdiction; setbacks; other standards; mitiqation. A. Findings. The Town Board of the Town of Southold finds that rapid growth, the spread of development and increasing demands upon natural resources are encroaching upon or eliminating many of its wetlands ~nd p~tontl~ndE:, which, if preserved and maintained in an undisturbed and natural condition, constitute important physical, social, aesthetic, recreational and economic assets to existing and future residents of the Town of Southold. The Town Board also finds that the presence of nondlsturbance buffers planted with native veqetation between wetland boundaries and areas of human disturbance have been shown to protect siqnificantly the health of wetlands and their water . . . Quality. rln ::lddition, thoro h::ls geen ::l signific::lnt incrG::lso in tho ::lpplic::ltions for ::lnd tho numbors of fixed 3nd fl03ting piers 3nd docks ::lccossory to upl3nd rosidenti::ll 3nd othor usos. Most of thoso structuros nnd the UCGS they s~~~ert ::lre on ::lnd in publicly owneg l::lng 3nd '''''::ltors nnd nlw3Ys h::lva some effact on physicnl, biologicnl, acosystem functions ::lnd Y3luos, dovelopment p::lttorns nnd the ::lesthetic ch3r::lctor of tha mon. Thorefore it is essanti31 to rogulnte the type ::lnd pl::lcomont okUGl1 sjfUBltife& B. Purpose. It is the intention of this chapter to ensure for the citizens of the Town of South old the protection, preservation, proper maintenance and use of its wetlands, giving due consideration to the reasonable economic and social development of the Town. [In addition, the Town Board declares that it is the intention of this chapter to regulate the type and placement of fixed and floating piers and docks for the protection, preservation, proper maintenance and use of its waters and wetlands.] Therefore, the Town Board declares that the regulation of the wetlands of the Town of Southold is essential to the health, safety and welfare of the people of the Town of Southold. The wetlands shall be regulated in order to maintain and contribute to the following resource area values and the attributes and functions they possess: protection of public and private water supply; groundwater; flood control; erosion and sedimentation control; storm damage prevention; water pollution control; fisheries; shellfish, including spawner sanctuaries; wildlife habitat; agriculture; aquaculture; aesthetics; public access and recreation. In addition, the following resource area values shall be maintained and protected: prevention of flood damage by limiting of development in flood hazard areas; throuqh requirements of setbacks and nondisturbance buffers prevention of damage to structures and natural resources as a result of erosion; improvement of water quality; protection and enhancement of existing vegetation cover in order to maintain water quality and wildlife habitat: protection of wildlife, waterfowl, and plant habitat and the maintenance of existing populations and species diversity; prevention of loss or degradation of critical wildlife and plant habitat; prevention of new stormwater runoff discharge and the improvement of existing stormwater runoff discharges; protection of coastal ecosystems which support the continued viability of harvestable shellfish and finfish habitat; public access to water and land; improvement of groundwater recharge; and the minimization of the adverse impact of new development, reconstructionslGfatioo.anG!Gr, expansion or other operations on the resource area values listed above. C. Jurisdiction: The following areas, includinq but not limited to Patent Lands. are subject to protection and requlation under Chapter 275 of the Code of Southold. Amended 10-11-2005 by L.L. No. 17- 2005 Notwithstandinq any prior course of conduct or permission qranted It shall be unlawful to conduct operations within the followinq areas without first obtaininq a written permit therefor issued by the Trustees or an administrative wetlands permit issued by the Environmental Analyst. as hereinafter provided. and only while such permit remains in effect. [Amernled--W41 2005 by L.L.NG.-t~] (1) Any freshwater wetland, tidal wetland, beach, bluff, dune, flat, marsh, swamp, wet meadow, bog, or vernal pool; (2) Any creek, estuary, stream, pond, canal, or lake; (3) Land under water; (4) Land subject to tidal action; (5) Land within 200 'UlG feet of the areas listed above but not includinq land more than 100 feet from a wetland if the land is separated from the wetland by a paved road surface which borders the entire street side propertv line. provided that such road was paved prior to rdate] and provided further that no direct means of drainaqe from such lands to the wetland. such as a culvert exists. D. Setbacks. [Amended 10-11-2005 by L.L. No. 17-2005] (1) The following minimum setbacks apply to any and all operations proposed on residential property within the jurisdiction of the Board of Trustees: (a) Wetland boundary (not in Critical Environmental Area). [1] Residence: 12500 feet. " ~ . . [2] Impervious Surface/Driveway: 75W feet. Pervious Driveway 50 feet. [3] Sanitary leaching pool (cesspool): 12500 feet. [4] Septic tank: 100:;'1; feet. [5] Accessory structure or sSwimming pool and related structures: 755G feet. [6] Landscaping or gardening other than native veqetation that is part of or enlarqes a Nondisturbance Buffer: 50 feet. [7] Placement of C & D material: 100 feet. ISI Nondisturbance Buffer: 50 feet. All permits shall delineate a specific nondlsturance buffer from the wetlands boundary for operations fallinq within cateqories 1-7 above. While 50 feet is the minimum, except as provided in subsection c) for critical environmental areas or as otherwise provided by the Trustees pursuant to Section F.2 hereof, the approvinq authority shall where practicable, impose a minimum nondisturbance buffer of 100 feet for all operations includinq turf, fertilizers pesticides, herbicides funqicides or similar treatments, landscapinq or other clearinq or disturbance of natural veqetation (b) Bluff line. [1] Residence: 12500 feet. [2] Impervious Surface/Driveway: 12500 feet. Pervious Driveway 100 feet. [3] Sanitary leaching pool (cesspool): 12500 feet. [4] Accessorv structure or sSwimming pool and related structures: 12500 feet. 151 Septic tank 100 feet . 161 Landscapinq or qardeninq other than native veqetation that is part of or enlarqes a Nondisturbance Buffer: 50 feet 171 Placement of C&D material 100 feet ISI Nondisturbance Buffer: 50 feet. All permits shall delineate a specific nondisturance buffer from the wetlands boundary for operations fallinq within cateqories 1-7 above. While 50 feet is the minimum except as provided in subsection c) for critical environmental areas or as otherwise provided by the Trustees pursuant to Section F.2 hereof, the approvlnq authority shall, where practicable, impose a minimum nondisturbance buffer of 100 feet for all operations, includinq turf, fertilizers, pesticides herbicides, funqicides or similar treatments landscapinq or other c1earinq or disturbance of natural veqetation. c) Critical Environmental Area 111 Residence: 150 feet 121 Impervious Surface/Drivewav: 125 feet. Pervious Drivewav: 100 feet 131 Sanitarv leachinq pool (cesspool) 150 feet (175 feet if practicable) 141 Septic tank: 150 feet (175 feet if practicable) 151 Accessorv structure or swimmlnq pool and related structures: 125 feet 161 Landscapinq or qardeninq other than native veqetation that is part of or enlarqes a Nondlsturbance Buffer: 100 feet 171 Placement of C&D material: 150 feet. ISI Nondlsturbance Buffer: 100 feet. All permits shall delineate a specific nondisturance buffer from the wetlands boundarv for operations fallinq within cateqories 1-7 above While 100 feet IS the minimum, except as otherwise provided bv the Trustees pursuant to Section F.2 hereof the approvinq authoritv shall, where practicable Impose a minimum nondisturbance buffer of 150 feet in critical enVIronmental areas for all operations. includinq turf fertilizers pesticides, herbicides funqicides or similar treatments. landscapinq or other clearinq or disturbance of natural veqetation. . . t . . (2) +~ Board-ol +HJSlees-feServes-#l&RgRtro-wa)\l8-{)r "aef-these ~ltaGks where site-&f}eGlhc 3nd 'or enVlro nmental--G~-jUStily.S<lCh.a~ E. Other Standards a) No addition to an existinq lunctional sinqle-Iamilv dwellinq shall be allowed within the jurisdiction 01 this Chapter unless the addition is on the landward side 01 the existinq structure all new and eXlstlnq runoll is captured on site, and the addition is less than or equal to 25% 01 the area (Iootprint) of the existinq structure. b) No wetlands permit shall be issued unless the applicant demonstrates and the approvlnq authorltv finds that the lollowinq standards have been met: 1) The proposed operation is compatible with the purposes and lindlnqs in Section 275-3 01 this chapter. In makinq this determination, the approvinq authority should determine whether the proposed operation is likelv to' Ii) Adverselv affect the wetlands 01 the Town' lii)Cause damaqe Irom erosion, turbidltv or siltation. (iii) Cause saltwater intrusion into the Iresh water resources 01 the Town. (iv) Adverselv allect lish shelllish or other benelicial marine orqanisms, aquatic wildlile and veqetation or the natural habitat thereof (v) Increase the danqer of flood and storm-tide damaqe. (vI) Adverselv allect naviqation on tidal waters or the tidal II ow of the tidal waters of the Town. (vii) Chanqe the course 01 any channel or the natural movement or II ow 01 any waters. (viii) Weaken or undermine the lateral support of other lands in the VIClnltV (ix) Otherwise adverselv allect the health, saletv and qeneral welfare of the people 01 the Town (x) Adverselv allect the aesthetic value 01 the wetland and adiacent areas 2) The maximum practicable nondisturbance buller sullicient to protect and preserve the wetland (as required bv Subsection DaB, b.B and c.B above) has been established lor all activities requlated bv this chapter. 3) All reasonable mitiqation measures have been taken to ensure that wetlands or their benelits will not be adverselv allected. (See subsection F.2 below.) 4) The proposed operation will not diminish any wetland in size or qualitv unless the Trustees find that the proposed operation is water-dependent or requires access to the wetland as a central element 01 its basiclunction and will result in the minimum possible alteration or impairment 01 the wetland or, il the proposed activity is not water-dependent, that there is no practicable alternative. [we may want to exclude this qualificationl . . f . . c) Any subdiyision application submitted to the Town for review and final conditional approval shall be required to meet the setbacks and standards set forth herein F. Deviations from Setbacks and Other Standards 1) The Board of Trustees reserves the riqht to Increase the setbacks In Section 275-30.where site-specific and/or environmental conditions lustify such action. 2) If an applicant proposes to conduct operations on a parcel where the existinq development and/or proposed operation does not conform with the setbacks and other standards in Section 275-30. and E. the Trustees may. followinq review of the application by the Environmental Analyst and a public hearinq pursuant to Section 275-8.D. allow less than the minimum setbacks if the followinq requirements are met: @l The applicant shall have demonstrated that there are no practicable alternatives which meet the standards set forth in & 275-3.D. and E. Practicable alternatives that meet the standards set forth in &275-30. and E are presumed to be available unless the applicant clearly demonstrates otherwise. M The applicant shall submit information describinq sites and the proposed work both for the proposed location and alternative site locations and confiqurations sufficient for a determination bY the Trustees. The level of detail shall be commensurate With the scope of the proiect and the practicability of alternatives (9 The applicant must demonstrate based on the competent analysis of a wetlands expert that the proposed work and location would have a less adverse environmental impact than any practicable alternative that meets the standards set forth In & 275-3.D. and E In order for it to be approved. Practicable alternatives that meet the standards set forth in &275-3 D and E are presumed to have less adverse impacts on the wetlands than proiects that do not meet such standards. unless the applicant clearly demonstrates otherwise (Q) In the case of any relief qranted from the setback requirements and other standards the Trustees shall require mitiqatinq measures which based on sound scientific analysis. are Iikelv to ameliorate the impact on wetlands and wetland benefits of the permitted Dperation The required mitiqation shall be stated in the permit and shall cDnstitute an enfDrceable cDndltiDn Df the permit: The scope Df mitiqatiDn required of an applicant shoUld be prDPDrtlDnal tD the scope of relief qranted by Trustees and likely effects Dn the wetland Df the permitted DPeratlon. In particular the mitiqatiDn shDuld ensure that the proPDsed wDrk and IDcation Will not impair the capacity of the wetland and buffer tD prOVide essential Wildlife habitat characteristics includinq amonq others. food. shelter breedlnq cover screeninq and miqratory habitat. as well as essential cDrridors and CDnnectlve functlDns. and will not Impair wetlands and surface water quality by incorpDratinq eroslDn. sedimentation and runoff controls tD minimize nonpoint source pollution. ill The preferred type Df mitiqation is that which will brinq nonconformlnq aspects of an applicant's property into conformity with the setbacks set forth in Section 275-3.D. Such measures that may be required of the applicant as mitiqation include. but are not I , . . limited to the followinq a) creatine a nondisturbance buffer where none currentlv eXists. wideninq an existinq nondisturbance buffer or planttnq natural veqetation in a buffer that is not veqetated. If the minimum nondlsturbance buffer set forth in Section 275- 3.D. is not practicable the proiect should include a nondisturbance buffer with an overall averaqe width equivalent to the minimum reqUired width set forth in & 275-3.D. for turf. fertilizers, pesticides herbicides, funqicides or similar treatments, landscapinq or other c1earinq or disturbance of natural veqetation and will provide equivalent protection of the wetland. b) movinq an existinq septic system to a point further from a wetland boundarv or, if the existinq septic system is on the wetland side of a structure, movinq the system to the landward side of the structure. c) replacinq impervious surfaces with pervious surfaces (Ii) If no mitiqation on the property is possible due to the size or confiquralion of the lot the nature of preexistinq development or undue hardship to the applicant mitiqatlon may take the form of monetary payment by the applicant in an amount set by the Trustees to a Town wetlands mitiqation fund to be used to acquire or restore wetlands ~ 275-4. Exceptions. A. The provisions of this chapter shall not affect or prohibit nor require a permit for the following: (1) The ordinary and usual operations incidental to the harvesting of fish and shellfish. (2) The ordinary and usual operations relative to conservation of soil, vegetation, fish and wildlife landward of the wetland boundary. (3) The ordinary and usual operations relative to preexisting commercial agriculture and preexistinq commercial horticulture landward of the wetland boundary. (4) The ordinary and usual operations relative to residential horticulture within Trustees' jurisdiction limited to the use of non-Invasive native species of veqetatlonlaOOward of the wotl3nd boundary. Re-qradinq and removal of trees outside any desiqnated buffer area are not Included In this exception. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted (by this chapter), existing and functioninq building, docr., pier, wharf, jetty, ~,<lam-Bf etAer-water control deVice or structure. (6) Installation of new or replacement windows doors dormers and sidinq only to existinq structures. Environmental tosting activities, including test borings, small volumo wil samplil1ffc 6f\woomontal assessment and Inventory activities, provided such operations ,*,-ool-flave-a<< ~ adverse impact on the wetlands and tidal waters of the Town. (7) The ordinary and usual maintenance or repair of a man-made pond as defined in S 275-2. This exception does not apply to filling of unlined man-made ponds. [Amended 10-11-2005 by L.L. No. 17-2005] (8) Proactive restoration or enhancement projects conducted in cooperation with the Trustees, including, but not limited to, salt marsh restoration, eelgrass plantings or other vegetative enhancement work. [Amended 10-11-2005 by L.L. No. 17-2005] . . , . . (9) lru;tallotion or burial of a residential propane tank within 100 feet of wetlands In an eXlstln~, established yard area when more appropriate upland placement is not possible l^lIdell10 11 2005 by l.l. No. 17 2005] Notwithstandinq the above listed exceptions activitv within a desiqnated nondisturbance buffer is prohibited B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees, nor provide an exemption from the requirements of anv other aqencv.. ARTICLE \I Permits ~ 275-5. Permit procedures. A. Permit required. Anv person proposinq to conduct operations within 200 feet of a wetland or otherWise within Trustee iUrlsdiction as defined herein must obtain in advance either an administrative wetlands permit from the EnVironmental Analvst. if the operation is eliqible for such a permit pursuant to Section 275-5.C.. or a permit from the Trustees if relief from setbacks or other standards is requested NBtwltAstanding any prior course of conduct or permission granted, no person &I1a1lGOOOtiBt operations on any area within Trustee JUrisdiction (3 275 3C) Without first obtaining a written .p8fmrt thefefBHsweG-l:ly--tfle-l=flJBtees as hereinafter pro'/ided and only while such permit romains meIfeGt B. For all permit applications. the wetland boundarv as determined bv the EnVironmental Analvst shall be presumptivelv correct. In the event that there is a dispute with reqard to the location of anv wetlands boundarv between the location of the boundarv as identified bv the Environmental Analvst and the location of the boundarv as mapped bv the applicant. the Trustees shall consider evidence at a public hearinq from the applicant and the Environmental Analvst concerninq the location of the boundarv The Trustees shall establish the final location of the boundarv as part of its deCISion to approve approve with modifications or conditions, or denv the issuance of the permit. L..Administrative wetland permit. Application and Procedures. (1) The administrative permit review process wherebv decisions are Issued bv the Town's EnVironmental Analvst based on fewer application requirements than a permit Issued bv the Trustees, is intended to provide Iof-expedited review of lor proposed operationsjeGts on properties that meet the minimum setbacks set forth in Section 275.3 and are otherwlseare deemed consistent with this chapter. e Boord's policy regordlng-protectlon-Bf-welIafld-resoUfGe& If.tRe proposod operations meet with all the currenl setback requirements-a&@fined by-s-~ and do not pose a threat to the overall fu~dGGRdltion of wetlands or -adjaGef\t-ffiJffef area&, applicants may request an administrative permit roview. In addition, an administrative permit shall be required whenever a person proposes to undertake the followinq operations a) Environmental testinq activities, includinq test borinqs small volume soil samplinq environmental assessment and inventory activities, to ensure that the operations and anv transportation to and from the site of the operations do not have an undue adverse impact on the wetlands of the Town b) Placement of a propane tank in the qround within 200 feet of a wetland boundarv. but in no event closer than 50 feet to the wetland boundarv so that the TO'Y.n Will have a record of where such tanks are located. c) Cuttlnq of common read (Phraqmites australis) to within 12 Inches of the soli surface landward of the wetlands boundarv Obtalnlnq an administrative wetlands permitThis review .does not relieve the applicant of iill.Y requirement to obtain permits from other iurisdictions, includinq but not limited to New York . -, . , . . State Department of Environmental Conservation and United States Armv Corp of Enqlneers. prsv4ding ::III tho 3pplic::ltion requiremonts (3 275 6) or obt3ining A. A landowner may request an administrative wetlands permit from the Environmental Analvst bv completinq an application sufficient to allow the Environmental Analvst to determine that such actlvitv meets the setback and other requirements of this chapter and will not have a siqnificant adverse impact on wetlands or their functions and benefits. The application for an administrative wetlands permit must be upon the form provided bv the Environmental Analvst and must include the followinq minimum information ill A description of the proposed activity and the location(s) of any eXlstlnq structure. accessory structure, swimminq pool, cesspool septic system driveway nondisturbance buffer and landscaped area. o Location map and survey as prepared bv a licensed surveyor Ql Anv additional information the Environmental Analvst may require to properlv evaluate the nature and location of the proposed operation, includinq documentation described in Section 275-6. (4) A completed Local Waterfront Revitalization Proqram Consistency Assessment Form. fL The Environmental Analvst may issue an administrative wetlands permit on Iv if the eXlstinq development on the property and the proposed operations conform to the minimum setbacks set forth in Section 275-3.0. and other standards set forth in this chapter Such administrative wetlands permit shall be issued within 45 days of an accepted request therefor. Nothlnq herein shall be construed to prohibit the Environmental Analvst from attachinq such reasonable conditions to an administrative wetlands permit to ensure that wetlands or their benefits will not be adverselv affected. ~ Administrative wetlands permits will be issued bv and bear the name and siqnature of the Environmental Analvst and will specify the: ill Activitv for which the permit is issued. o Address or location where the activity IS to be conducted. Ql Name and address of the applicant ill Permit number and date of Issuance. (ill Period of permit validltv. If not otherwise specified. the permit will expire three years from the date of issuance. ill1 The terms and conditions of the approval. ~ If the Environmental Analvst determines that a proposed activltv, even thouqh meetlnq the setbacks set forth In Section 275-30., may have an adverse Impact on wetlands or their functions and benefits, the EnVIronmental Analvst may decline to issue an administrative wetlands permit and reqUire an application for a Trustee permit pursuant to ~ 275-6 of this chapter Anv such deCISion shall be communicated to the party requestinq the administrative wetlands permit within 15 days thereof and must include a flndlnq of fact that enumerates the basis for the issuance or denial of the permit .E.- Actinq on administrative wetlands permits. All decisions bv the Environmental Analvst shall be filed in the Town Clerk's office. The Environmental Analyst will also prOVide the Trustees on a monthly basis with a list of administrative wetlands permits that were issued or denied and will also provide the Trustees with a description of the proposed proiect, location of the . . . . proposed proiect. and the basIs for the Issuance/denial of the administrative wetlands permit A list of administrative wetlands permits that were issued or denied will be available to the public on the Town's website The Ilstinq will include a brief description of the proposed proiect. the location of the proposed proiect and the basis for the issuance/denial of the administrative wetlands permit L Upon approval of the application the Environmental Analyst shall cause two sets of plans and specifications to be endorsed with word "approved." The Environmental Analyst shall also cause an administrative wetlands permit to be issued. Prior to any construction or land disturbance, the applicant shall prominently display said administrative wetlands permit on the premises facinq each public street The applicant shall also keep a copy of the plans and specifications on site open to inspection bY the Environmental Analyst or his authorized representative at all reasonable times. G. If the Environmental Analyst issues an administrative wetlands permit the application procedures set forth in Section 275-3D. need not be followed. !i The Environmental Analyst may issue an administrative wetlands permit for a period of UP to two years. sublect to extension bY the Environmental Analyst upon written application for UP to two consecutive one-year periods. L Denials. If the Environmental Analyst denies the issuance of an administrative wetlands permit the applicant can file an application with the Trustees In accordance with procedures set forth In ~275-6 ,L The Environmental Analyst may suspend or revoke an administrative wetlands permit theretofore issued and approved in the followinq instances: ill Where he finds that there has been any false statement or misrepresentations as to a material fact in the application plans or specifications on which the administrative wetlands permit was based; {21 Where he finds that the administrative wetlands permit was issued in error and should not have been issued in accordance with the applicable law Ql Where he finds that the work petiormed under the permit exceeds the. scope of the application for which the permit was Issued or there is a violation of one of the conditions of the permit (2) Tho following Dfl'*lOOfl&-wH1-be considerod for 3dmlnistr3ti'le review: (a) GoostHIGliGR, inst3113tion or romov31 of 3 splJt-raMence, open .arbor, trellis or otherslmllaf slfw;lure.-prevlded th3t such oper3tion wllloot-have-arl--uflduei3Gverse Impact on the wetl.arK:l&3nd tld31 w3terE;.of~--Goocrete-feetif1gs 3re not permitted within wetl3nt!& (b) Remov31 of 3ny m3teri31 Gr-stwGWfe provided th3t 3 prOject Iimiting-fenGe3nd 3 silt fence wAA- h3Y b31es is inst311ed te wnta+A-Clisturb3nce if deemed necess3ry-i3M provided Ih3t such oper3tions wiIHlGl-Rave-af)-.Hmlue-Gd'lercc impGct on the wetI3nds-arlG-*laI W3torS of the Town . . . '. (c) Constr~ction of 3dditions to the landward side of an existing functional single f3mily dwelling, '.'>'hero such dwelling generally lies parallel to the wotland bouMary and pro'/ided th3t 311 new and existing runoff is capturod on site >>uch 3dditioff-mtlst-llBjess than or equa> to 25% {)f the are3 (footprint) of the existing stfUBi,*" (d) Remodeling, +enov3tion or reconstructiGf1-.of a structure, ~~sUG4-aGlivilywillnot havo an undue adverso impact on the wetlaRGs-aA4-tidal waters-of the TGWn. (e) GOASlf~-of accessory-structuros for exi~mily dwelli~si-flFGVlded that-wch activity Will not have an undu& adverse impact on the wetlands and tlclal waters of the Town and the setback is oo-Iess than 50 feet (f) Gonstruction or improvement o4>ervious rosidel1ti:J1 drivew3Y~ wall<w:JYs, flfe'-'!dod th:Jt such :Jctivity wi'! not h:Jve an undue :Jdverse imfl:Jct on the wellands and tid:J1 walefs-of-lhe ToWfl-c (g) The demolition, romov31, reloc:Jtion, ropair and/or upgracJing-of-eJ?JSlJAS-fuel.tanl<s, fuel lines, fuel dispensers, cesspools, septic systems, or sanitary w:Jstew:Jter actl\i-lt+e6, including necessary site work, and provided that such activity will-flOl h:Jve :JR-UMUB adverse impact on the wetlands and tidal-walefs.of the Town. (h) Gonslfuction or installation of drainage structuros fDr the rotontion of wooll,-f*Ovlded th:Jt sush-slructures incorporate the m3ximum feasible setbaGk from wetlaA45-an4-flFGvidod that &uGh-actiVity will not have an und~e aEl-vorso imp3cton tho wotlands and-tiGal-wators of the Town- (i) Cutting of common reed (Phr:Jgmltes australls) to wlthin-+J-iflGhec of the soil sUffaBe landward of the wetland bound3ry. This does not include mowing to ground level. Ul [The constructiGf1-.of:J permitted bulkhead, which is tweplaco an oxlsliAg-WnctiooaJ ~to the following !1J Thatthe+lew--1:lufkflea<HsOOAStf{Jcted substantially similar to the-deSign and meaSUfemont of the-existing--llLllkheadi-Bf\d f;;J The new bull<he3d is In the same location--as tho eXlstlng-1w11<-hea9- f;>J Any-stIBh activitios sh:J1I f-equife-lhe-addition o~~-AOntllff buffer :Jroa--0o1-loex-ceed;;O feet wide as defined inS-275 2. [J\dded 1~11-2005-by-kb-~H-2005} (k) MinDf-changes to eXlsting,v:Jlid Trustoe permils..Tho Trustees roserve the Rght-te determino whethor tho changes qU311fy .fer :Jdministrative review,-fA<:kl&d 10 11 2005 by L.L. No. 17 2005} (3) /I.ny such activities shall roquire the additiGf1--ef a nonturf buffer area.nel.lo-el<Gcod 20 feot Wide as-definod in 3 275 2. !i 275-6. Application for Trustee Permi!. A Contents of application for Trustee permit A Trustee permit may be issued upon the written, verified application of the person proposing to perform operations on wetlands. Three copies of the complete application, including all written descriptions, pictures and surveys, shall be submitted to the Clerk. Such application shall contain the following information: [Amended 10-11-2005 by L.L. No. 17-2005} (1) The name and address of the applicant and the source of the applicant's right to perform such operations (e.g., whether applicant is the owner, lessee, licensee, contractor, etc.). In all cases where the applicant is not the owner of the premises where such operations are proposed to be conducted, the notarized consent of the owner, duly acknowledged, must be attached to said application. . . . ., (2) A schedule for the proposed activities with a completion date. (3) The purpose of the proposed operations. (4) The amount of material proposed to be removed or deposited, and/or the type, size and location of any proposed structure. (5) A description of the area from which the removal or in which the deposit of material is proposed, or in which structures are to be erected. The description shall be appropriately referenced to a permanent reference point or monument. (6) The depth to which the removal or the deposit of material is proposed throughout the area of operations, and the proposed angle of repose of all slopes. (7) The manner in which the material will be removed or deposited, or structures erected. (8) Such application shall be accompanied by a survey and topographical map, created no more than one year prior to the date of application, with contours at two-foot intervals, showing all wetlands within a two-hundred-foot radius of the area from which the removal or in which the deposit of materials is proposed, or in which structures are to be erected, certified by a registered land surveyor or registered professional engineer, licensed by the State of New York Such survey and topographical map shall show the soundings of the area in which operations are proposed to be conducted. The horizontal control of said survey shall be based on an approved local coordinate system. The vertical control for elevations shall be based on the United States Coast and Geodetic Survey datum. [Amended 10-11-2005 by L.L. No. 17- 2005) (9) A statement of the effect, if any, on the wetlands and tidal waters of the Town that may result by reason of such proposed operations. (10) A statement describing any known prior operations conducted on the premises in question and whether any prior licenses or permits have been issued to erect structures or to dredge or deposit fill on s'aid premises and whether any such permits or licenses were ever revoked or suspended by a governmental agency. (11) Documentary proof of permits that have been applied for, are pending, and have been granted, including but not limited to NYSDEC, Suffolk County Health Department, USACOE. (12) A description of how the proposed activities will be mitigated, including erosion control, replanting and restoration, designated points of access. All proposed operations will be clearly defined on a survey and described in a project narrative. The Trustees reserve the right to require specific replanting and restoration methods. Any replanting and restoration guidelines shall be in keeping with guidelines set by the Town of Southold. (13) Current photos of the subject area showing the proposed area of operations from at least two opposite directions. Each photo should be labeled with the date, time and direction. The location of the photos shall be noted on the survey, project plan or provided on a separate sketch map. (14) Drainage upgrade. At the discretion of the Board, nonadministrative applications may require submittal of a drainage upgrade plan. This plan must indicate how all existing and proposed on- site drainage from a two-inch rainfall is retained within the subject parcel landward of the wetland boundary. Retention can include but is not limited to infiltration or impoundment. All drainage plans shall show the calculations used to develop the plan. At the discretion of the Board said plans may require certification from a licensed engineer. (15) All permit applicants shall submit to the Board of Trustees an affidavit signed by the owner of the project property which indemnifies and saves harmless the Town of Southold from any claims arising out of or connected with operations under the permit and from all acts, omissions, commissions or negligence on the part of the applicant, his agents or employees, in such form as shall be approved by the Town Attorney. . . . " (16) An ethical disclosure statement as provided by the Town of South old relating to applications for permits and other governmental requests. (17) A statement indicating that submission of false information will result in rejection of the application and may subject the applicant to criminal sanctions. (18) A completed Local Waterfront Revitalization Program Consistency Assessment Form. [Added 10-11-2005 by L.L. No. 17-2005] B. W3iver of cortain requirements. The Trustees. upon request of the 3pplic3nt-fefa'pBfmlt. m3Y w3ive. iA- whole or in-pafi, the provisions ofJ\rticle II, S 275 6/\(8), (11). (14) or ~+5-11^(2) where il-.fiA-Gs lllat-tltenatillo of the proposed operations is such th3t the roquiromeffi&ef such provisions 3re not nocessary for a ~ropor consideration of a ~ormit application Tho rosolution providing lor the waiver shall clearly indicate why the waiver was granted. ~ 275-7. Fees. A. Every application for a pormit Trustee permit filed with the Clerk shall be accompanied by a filing fee of $250. which includes the first site visit, no portion of which shall be refundable. The fee for an administrative wetlands permit shall be $1 OO.aG. For any operation undertaken wlthoutstructures that have been previously built without a permit, the application fee will be tripled in addition to the penalties provided belowdouslee. If a preapplication site visit is requested, the fee shall be $50. [Amended 10-11-2005 by L.L. No. 17-2005] B. In addition to the filing fee, the Trustees, upon the adoption of a resolution authorizing the issuance of a permit, shall determine the amount of the inspection fees to be paid by the applicant to the Clerk upon the issuance of a permit. Inspection fee costs will be based on $50 per site visit. C. Pursuant to New York State law, all costs incurred by the Town for SEQRA review shall be paid by the applicant. D. Consultant fee. The Board shall request the Environmental Analyst to review all applications for Trustee permits and to make a written report to the Board at least 30 days before the public hearinq on the application. At,at its discretion, depending on the scale and potential impact of proposed operations, is authorized to require the posting of a consultant fee by an applicant. This fee shall be used to hire an independent, expert consultant to investigate the site for the proposed project and to examine the plans or other information submitted by the applicant to supplement the work of the EnYlronmental Analvst and assist the Board in evaluating potential adverse impacts upon a resource area by the proposed project. The Board, in its discretion, will determine whether the complexity of the activity, the workload of the Environmental Analyst the difficulty in determining the threat to the resource areas or the size of the request or project involves and requires more information and analysis than can reasonably be supplied to the Board without independent technical professional assistance. (1) The Board may require the payment of the consultant fee at any time in the deliberations prior to a linal decision. (2) The consultant fee may be required for expert opinion regarding, but not limited to, wetland resource area surveys and delineations, analysis of resource area values, wetland resource area reports, hydrological and drainage analysis, wildlife habitat analysis, shellfish surveys, and environmental land use law, or any of the following: (a) Placement, removal or grading of at least 50 cubic yards of material; (b) Five hundred square feet or greater alteration of a resource area; (c) Shoreline or bank alteration to a coastal or inland waterway; .. ,,~-- . . (d) Five hundred square feet or greater alteration to land in a naturally vegetated condition that constitutes a resource buffer area. (e) Discharge of any pollutants into or contributing to surface or groundwater of the resource area; (I) Construction of any stormwater control facility, or water control structure. E. Dock anct.-flo:)t fee. Every application for a new d~float Ehall include:) fee equ:)I,~per foot of tin8al'4eAgth lor reEidential and commercial dock~aro any EtrUBttlffi&lAaf-afe (<",ted, leawd or otherwise used to goner:)le-mcome, includi~not limitod toAhose Etructuros loGate4-0n woportieE zonee M1 :)nd M2. [P.dded 10 112005 by l.l. No. 17 2005] !i 275-8. Processing of application~. A. Presubmission conference. Applicants are encouraged to schedule a voluntary presubmission site visit to discuss the proposed operations with the Environmental Analvst or Board as approPriate. Discussions in the field are purely advisory and nonbinding, but this meeting is intended to facilitate communication between the applicant and the Town Beam. There will be a fee of $50 for this conference. [Amended 10-11-2005 by L.L. No. 17-2005] B. Investigation and coordination. Upon receipt of i!DY.-lFIe-application for an administrative wetiands permit or Trustee permit, the Clerk shall forward one copy thereof to the Conservation Advisory Council, when appropriate, one copy to the Planning Department, one copy to the Zoning Board, and one copy to be filed with the office of the Trustees. The Conservation Advisory Council shall review said application and the effect, if any, on the wetiands and tidal waters of the Town that may result from the proposed operations and shall, within 20 days of receipt of the same, forward its written report of findings and recommendations with respect to such application to the Trustees. If the Conservation Advisory Council shall recommend that such application be disapproved, the reasons for such disapproval shall be set forth in such report. If no .response is received within 20 days, the application is not subject to further Conservation Advisory Council review. C. All paperwork relative to an application required to be the subiect of a public hearlnq pursuant to this chapter shall be submitted at least thirty &eVefl-days before the scheduled hearing. The submittal of additional paperwork after this time may result in delays in processing of the application. Required paperwork includes the written reports, if any. of the Environmental'Analvst Conservation Advisorv Council. LWRP Coordinatinq Council. Planninq Board or Zoninq Board. D. Hearing. The Trustees shall hold a public hearing on any application seeklnq relief from the setbacks or other standards set forth in Section .Euch a~~lication. Notice shall be provided pursuant to Chapter 55, Notice of Public Hearings, of the Town Code and shall specify the mitiqatlon measures that the Trustees are proposinq to require. E. Action. After the public hearing on such applications, the Trustees shall either adopt a resolution directing the issuance of a permit and specifvinq the required mitiqation. or adopt a resolution denying the application. A resolution directing the issuance of a permit may be adopted only if the Trustees find that the proposed operations will conform to the standards set forth in !i 27~ hereof If the Trustees adopt a resolution denying an application for a permit, the reasons for such denial shall be set forth in the resolution. I F Modifications and amendments. Any and all modifications and amendments of existing permits, except those fallinq within the authoritv of the Environmental Analvst shall be reviewed by the Trustees in accordance with the standards set forth in this chapter, and may be subject to public hearing. G. Tabled applications. If an applicant tables an application for any reason, it will be considered withdrawn if it does not go to public hearing within four months of the time it was tabled After such time the applicant will have to reapply for a permit. .. ......... . . H. Administ,otive permits. I\n odministr-otive permit is deemed to hovo no adverse impact on the wetlands and tidal waters ef the Town, and a public hearin~ and notice aro not roquiree prior to iswaAGe of 0 permit. The final decision will be made upon resolution. ~ 275-9. Conditions, inspection fees, performance guarantee upon issuance of permit. The Trustees may, upon the adoption of a resolution directing the issuance of a Trustee permit. A. Impose such conditions on the manner and extent of the proposed operations as they deem appropriate, consistent with the purpose of this chapter. B. Fix the time by which operations must be commenced and within which they must be completed. C. Require the payment of inspection fees. D. Under certain circumstances the Board may require the submittal of as-built plans, upon completion of operations, stamped by a licensed surveyor and/or engineer. E. Performance guarantee. The Trustees may require a performance guarantee to ensure the proposed operations are conducted in compliance with a permit. If the work is not conducted as described in the . permit or such work is causing harm to the protected resource, notice will be given in writing. The Board may require, as a permit condition, that performance and observance of other conditions be secured by one or both of the following methods: (1) Bond; (2) Deposit of money; (3) Negotiable securities; or (4) Other undertaking of financial responsibility. F. Liability insurance. The applicant for a permit shall, before the issuance of said permit by the Clerk, file with the Clerk a certificate that the contractor chosen to perform the work under the permit has liability insurance policies insuring against any liability which may arise in the performance of the operations pursuant to such permit, which said policies shall name the Town as an additional insured. ~ 275-10. Contents of permit. Each Trustee permit issued hereunder by the Clerk pursuant to a resolution of the Trustees shall be valid for a period of two years from the date of approval. Said permit may be renewed for two consecutive one- year periods at the discretion and review of the Board. Each permit shall state the following: A. The name of the permittee. B. The date of issuance and expiration of the permit. C. A schedule of when operations will be conducted. D. The conditions imposed by the Trustees on the issuance of the permit. includinq a clear and detailed statement of the required mitiqation if deviations are qranted from the minimum setbacks or other standards. E. The specific location of the areas to be affected by the operations of the permittee. ... ...~.. . . F. A statement that "The validity of this permit is or may be subject to the approval of other governmental or municipal authorities. The Town accepts no responsibility in applying for or obtaining such approval. In the event that such approval is necessary, the holder of this permit shall not commence operations hereunder until such approval has been obtained in writing. The failure to obtain such other approval when required shall subject this permit to immediate revocation by the Clerk upon receipt by the Clerk of written notice from such other governmental or municipal authorities of its refusal or disapproval." Acceptance of the permit is acceptance of this condition. G. A statement that "The permittee does, by the acceptance of this permit, assume all responsibility for operations undertaken pursuant to this permit, and shall take all precautions for the prevention of injuries to persons and property resulting from such operations. By such acceptance, the permittee also agrees to indemnify and save harmless the Town and its officers, agents and employees from any and all claims arising from operations under this permit and any and all acts or omissions of the applicant, his agents and employees." Acceptance of the permit is acceptance of this condition. H. A statement that "The permittee and the owner and occupants of the premises upon which the operations authorized by this permit are being conducted do, by the acceptance of this permit, give consent to the Town and its officers, employees and agents to enter upon the premises where such operations are being conducted to make such inspections to determine whether said operations are being conducted in conformity with the permit and, if necessary, to conduct said operations according to the performance guarantee (9 275-9E)." I. A statement that "The permittee is required to notify the Trustees in writing one week prior to initiation of any and all operations." J. A statement that "The permittee is required to notify the Trustees in writing upon completion of operations such that the site can be inspected for issuance of a certificate of compliance (9 275-13)." K. A statement that "The permittee is required to provide evidence that a copy of this Trustee permit has been recorded with the Suffolk County Department of Real Properties Office as a notice covenant and deed restriction to the deed of the subject parcel. Such evidence shall be provided within 90 calendar days of issuance of this permit." [Added 1 0-11-2005 by L.L. No. 17 -2005J I remainder of law deleted f(lr review purposes I .' t. . . OFFICE OF LONG ISLAND SOUND PROGRAMS TIDAL WETLANDS BUFFERS GUIDANCE DOCUMENT INTRODUCTION This document was developed to provide local land use agencies with background information regarding the value of vegetated buffers as a tool in protecting tidal wetlands from adverse impacts associated with adjacent upland development. It presents a brief overview of tidal wetlands followed by a discussion of what vegetated buffers are, how they function, what characteristics make the ideal buffer and how buffers can be used to protect tidal wetlands. Key concepts in the development of buffer regulations are presented and model regulation language is provided. This document concentrates on the value and establishment of buffers to protect tidal wetlands. However, it should be noted that buffers can be an effective tool in protecting other sensitive resource areas. TIDAL WETLANDS WHAT ARE TIDAL WETLANDS? Tidal wetlands are: those areas which border on or lie beneath tidal waters, such as, but not limited to banks, bogs, salt marshes, swamps, meadows, flats, or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters, and whose surface is at or below an elevation of one foot above local extreme high water; and upon which may grow or be capable of growing some, but not necessarily all, of [a list of specific plant species - see Connecticut General Statutes (CGS) section 22a-29(2) for complete list of species]" [CGS section 22a-29]. In general, tidal wetlands form in "low energy" environments protected from direct wave action. They are usually flooded by tidal waters twice a day and support a diverse ecosystem of vegetation and wildlife. WHY ARE THEY VALUABLE? . . Tidal Wetlands Buffers Guidance Document Page 2 Tidal wetlands are areas of high nutrient and biological productivity that provide detrital products forming the base of the food web in Long Island Sound. Next to tropical rainforests, tidal wetlands are the most biologically productive resource in the world. Tidal wetlands provide habitat, nesting, feeding, and refuge areas for shorebirds; serve as a nursery ground for larval and juvenile forms of many of the organisms of Long Island Sound and of many estuarine-dependent oceanic species; and provide significant habitat for shellfish. Most of the commercial fisheries stock that we eat start their lives in tidal wetlands. These resource areas also improve water quality by trapping sediments, reducing turbidity, restricting the passage of toxics and heavy metals, decreasing biological oxygen demand (BOD), trapping nutrients, and buffering storm and wave energy. Tidal wetland vegetation stabilizes shorelines and buffers erosion. Tidal wetlands provide recreational opportunities for fishing, wildlife observation and hunting; are important to commercial and recreational shell- and finfisheries; and are areas of scientific and educational value. Tidal wetlands are a major source of coastal open space and offer exceptional scenic views. WHY DO TIDAL WETLANDS NEED PROTECTION? Due in part to their transitional location between upland areas and coastal waters, tidal wetlands are very specialized habitats that are sensitive to disturbance. Human actions, both direct and indirect, can adversely impact tidal wetlands and their functions. Direct actions include activities such as filling, dredging and trampling; indirect actions include upland uses that result in sedimentation, increased stormwater discharge, proximate septic system failures or the installation of culverts in a manner that decreases salt water flushing. In these cases, the delicate balance between soil surface, water level, water quality and/or salinity is disturbed. This results in a stressed habitat which is usually less productive than a healthy marsh and frequently supports undesirable species, most typically Common Reed (Phragmites australis). Historically, many of these activities have occurred in Connecticut resulting in the loss or degradation of the majority of tidal wetlands. As a result it is even more important to protect the wetlands that remain. WHAT ARE MUNICIPAL RESPONSIBILITIES TOWARD TIDAL WETLANDS? Although activities within tidal wetlands are regulated by the DEP, municipalities are responsible for ensuring that adjacent upland development does not harm these resource areas. The Connecticut Coastal Management Act contains policies and standards regarding tidal wetlands that must be applied during municipal coastal site plan review process. Generally speaking, land use boards and commissions in coastal municipalities must ensure that development will not result in degradation of tidal wetlands, and that tidal wetlands are preserved, protected and, to the extent practicable, restored. VEGETATED BUFFERS 2 . . Tidal Wetlands Buffers Guidance Document Page 3 WHAT IS A VEGETATED BUFFER? A vegetated buffer is an undisturbed area or strip of land covered with permanent stable vegetation adjacent to a resource area. They can be either in a natural state or artificially planted. If artificially planted, low-maintenance, preferably native, non- invasive vegetation should be used. Vegetated buffers are frequently used to protect inland wetlands and watercourses. Depending upon their purpose and site-specific conditions, effective vegetated buffers can range in width from a few yards to several hundred feet. WHY ARE VEGETATED BUFFERS VALUABLE FOR TIDAL WETLANDS PROTECTION? Properly designed buffers protect resource areas from direct and indirect adverse impacts associated with adjacent upland development. They protect tidal wetlands from adverse changes to water quality and temperature; control erosion and trap sediment; protect and provide wildlife habitat; reduce the effects of flooding on adjacent upland property; reduce the potential for direct human and/or pet disturbance of sensitive wetland areas; maintain aesthetic diversity and enhance recreational value of coastal areas. An effective and established buffer provides a mosaic of inter-dependent . functions. Establishing a vegetated buffer area can decrease lawn maintenance requirements and associated costs and impacts by reducing the area of manicured landscape. This results in lowered costs for lawn care, including mowing and fertilizer and pesticide application, while improving tidal wetland protection. How DO WE KNOW THAT VEGETATED BUFFERS ARE EFFECTIVE? There have been numerous research projects to assess the value of buffers as wetland protection measures. The scientific literature to date has examined several different types of buffers (e.g., forested, grassy, shrubby) of varying widths and evaluated their effectiveness at protecting water quality in adjacent wetlands and watercourses from specific impacts associates with identified upland uses. As with most scientific research, each study has generally had a narrow focus and has examined specialized functions such as the retention of nitrogen, phosphorous, sediment or pesticides and herbicides. The majority of this research has been done with respect to freshwater wetlands and watercourses with little research specific to tidal wetlands. Despite the research done to date, there are still too many unknowns to determine the optimum buffer width for every instance. 3 . . Tidal Wetlands Buffers Guidance Document Page 4 How DO VEGETATED BUFFERS WORK? In general, retaining an undisturbed buffer area adjacent to a tidal wetland will promote stormwater infiltration, pollutant retention, and habitat protection. It will also discourage direct human disturbance and increase visual diversity. Buffers provide these benefits in very specific ways, depending upon the intent of the buffer. How DO VEGETA TED BUFFERS PROTECT WA TER QUALlTV? When used for water quality protection, the primary role of a vegetated buffer is as a stormwater management measure. Since the land within a buffer area is not developed or significantly disturbed, it typically does not generate pollution. Such an undisturbed area acts as a filter to intercept and absorb nutrients, sediment and other pollutants carried in stormwater runoff that flows across or through the buffer. A vegetated buffer also slows the flow of runoff which both reduces erosion of the buffer area and allows silt and other suspended solids to settle out within the buffer before reaching adjacent wetlands. Additionally, any contaminants attached to the trapped sediment are retained in the buffer area and do not reach the wetland. Slowing the speed of runoff also allows the water to infiltrate the soil and ultimately discharge to the wetland as groundwater rather than as overland flow thereby reducing the volume of surface runoff. This is especially significant as freshwater, even if of drinkable quality, when introduced into a saline habitat, such as most tidal wetlands in Connecticut, can have significant adverse impacts by diluting the natural salt content of the receiving area. Discharge as groundwater reduces potential adverse impacts as it is usually below the root zone of the wetland area and, thus, has less effect on the resource. Buffer areas also trap bacteria, pathogens and pesticides which then decompose or break down in place, aiding in the preservation of water quality. How DO VEGETA TED BUFFERS PROTECT AND PROVIDE WILDLIFE HABITA T? Vegetated buffers provide wildlife with needed areas for feeding, resting, nesting and raising young, as well as corridors through which wildlife can safely transverse otherwise developed areas. Vegetated buffers not only provide wildlife habitat directly within the buffer area but also protect adjacent wildlife habitat in the abutting resource area. Some wildlife species use the buffer area itself, while others uSe the tidal wetlands protected by vegetated buffers and some species will use both areas. How DO VEGETA TED BUFFERS PROVIDE FLOOD CONTROL? Naturally vegetated buffer areas adjacent to tidal wetlands serve a number of functions for flood control. On level areas abutting tidal wetlands, vegetated buffers can serve as areas where flood waters can spread out. Root systems of shrubby and forested vegetation within the buffer areas generate pores in the soil, allowing flood waters to infiltrate the soil within the buffer. Significantly more water can infiltrate soil that supports shrubby and forested vegetation than land used for lawn, buildings, patios and terraces, driveways or other less permeable surfaces. Buffers 4 . . Tidal Wetlands Buffers Guidance Document Page 5 also provide flood control by moving development back from the naturally flood- prone resource area. How DO VEGETA TED BUFFERS PROTECT WETLANDS FROM HUMAN DISTURBANCE? When used to protect tidal wetlands from disturbance by humans and their pets, a vegetated buffer primarily provides a physical barrier between areas of human occupation and tidal wetlands. Human disturbance often takes the form of trampling, disposal of grass clippings and other lawn waste, intermittent filling, and other improper disposal actions. Pets can interrupt the life routines of wildlife of the wetlands and buffer area by both predation and general disturbance. The denser the vegetation in the buffer area, the less it is apt to be penetrated by humans and their pets. How DO VEGETA TED BUFFERS MAINTAIN AESTHETIC DIVERSITY AND RECREATIONAL VALUE OF COASTAL AREAS? A healthy tidal wetland is usually fairly flat and the most obvious vegetation is comprised of grasses. Abutting vegetated buffers can offer a visually interesting contrast in terms of vegetation type and texture. This contrast increases aesthetic diversity of the coastal area and, because they are both interesting to look at and provide habitat for birds and other wildlife, they increase the recreational value of the coastal area by providing improved opportunities for birding, painting/drawing, and other passive recreational pastimes. WHAT DETERMINES THE OVERALL EFFECTIVENESS OF A VEGETATED BUFFER AREA FOR PROTECTING TIDAL WETLANDS? & The oeneral topooraphv of the buffer area. Flat or gently sloping buffers are more effective because they are more successful at slowing-the rate at which stormwater flows across them. A slower flow rate enhances the infiltration and filtering capability of the buffer. The ability to provide flat or gently sloping buffers is clearly related to individual site characteristics. & The tvpe of stormwater flow. Sheet flow (slow unrestricted flow across the ground) along the length of the buffer allows the buffer area to more effectively trap sediments, attenuate pathogens and pollutants, and encourage infiltration. Concentrated flow (e.g., flows directed through swales, pipes or other conveyances or flows that are strong enough to create gullies or other eroded channels) reduce or essentially eliminate the effectiveness of a buffer for stormwater management. & The permeabilitv of the soils and the depth to the water table. Generally, higher soil permeability (the rate that water can flow through soils) and greater depth to the water table will increase the rate of infiltration and attenuation within the 5 . . Tidal Wetlands Buffers Guidance Document Page 6 buffer area. It should be recognized that, except for areas where the land slopes sharply up from the wetland boundary, generally the depth to groundwater adjacent to tidal wetlands is quite shallow. & Whether the current veqetation is native or non-native. its densitv and its character (e.g., forested, shrubby, grassland, etc.). Dense, minimally groomed, native vegetation is inherently suited to the local climate and generally provides an effective buffer that requires less maintenance than non-native or heavily groomed vegetation. & Whether the land use above the buffer poses a hiqh. medium or low risk for pollution or other disturbance. The higher the risk posed by the upland use, the greater the need for an effective buffer. Increasing the width of a required buffer and/or increasing the density of native plantings can aid in offsetting the potential impacts from a high-risk upland use. & What tvpes of activities are permitted within the buffer. The fewer activities allowed, the more valuable a vegetated buffer will be. Land clearing, grading or other disturbances and establishing or maintaining impervious surfaces with vegetated buffer diminish their overall effectiveness for a variety of purposes. However, in some instances, minimal access to the tidal wetlands edge might be appropriate as a reasonable exercise of riparian or littoral rights in order to obtain access to a dock or boating facility. For large projects, passive recreation amenities, such as hiking trails, benches and/or picnic tables may be appropriate to provide a necessary water-dependent use provided they are properly designed to minimize disruption of the buffer as a resource protection measure. How WIDE IS WIDE ENOUGH? The scientific literature to date has examined several different types of buffers (e.g., forested, grassy, shrUbby) and evaluated their effectiveness at protecting water quality in adjacent wetlands and watercourses. As is typical with research projects, most projects have been narrowly focused and generally each study has examined isolated impacts or values associated with specific upland uses. For example, a single research paper might examine the effectiveness of a 60 meter (197 foot) wide buffer in removing total suspended sediments (TSS) in stormwater runoff. Or a study might investigate the use of a 30 meter wide buffer by avian species for general habitat. The majority of this research has been done with respect to freshwater wetlands and watercourses. However, in the absence of tidal wetland specific investigations, it may be reasonable to assume that the data on freshwater systems is transferable to tidal wetlands. The data available does not clearly indicate an optimum minimum buffer width for multi- purpose buffers. However, The Scientific Basis for Protectinq Riparian & Wetland Buffer Zones (REMA Ecological Services) indicates the following removal rates can generally be provided by a 100 foot buffer: 6 . . Tidal Wetlands Buffers Guidance Document Page 7 81 percent of total suspended solids 89 percent of sediment 89.5 percent of nitrogen 82 percent of phosphorous Of these potential water quality contaminants, TSS is only one for which a removal standard has been set. The US Environmental Protection Agency has set a TSS removal goal of 80 percent. It should be noted that there is a strong indication in the literature that the effectiveness of buffers is not a linear function. In other words, one cannot take the data listed above and assume that if a 100 foot buffer removes 82 percent of phosphorous, for example, each foot of buffer will remove 0.82 percent of phosphorous or that a 122 foot buffer will remove 100 percent of phosphorous. However, this data does suggest that a 100 foot vegetated buffer has a significant effect in removing the listed substances. In contrast, the data related to the provision of buffers for wildlife functions, including feeding, nesting, resting and movement corridors vary considerably. The following list of effective buffer widths for wildlife functions is taken from How EcoloQV ReQulates Wetlands (Washington State Department of Ecology). 15-23 m (49-75 feet) of riparian wooded area can provide general avian habitat 15-30 m (49-98 feet) of densely growing mixed vegetation can protect wetlands habitat from low-intensity disturbance 30 m (98 feet) of unspecified area can provide a wildlife travel corridor 30-45 m (98-148 feet) of densely growing mixed vegetation can protect wetlands habitat from high-intensity disturbancest 60 m (197 feet) of unspecified area can provide breeding sites for fragment- sensitive bird species 60-100 m (107-328 feet) of unspecified area can provide general wildlife habitat 67 m (220 feet) of wooded riparian area can provide small mammal habitat 91.5 m (300 feet) of natural vegetation a can provide protect significant wildlife habitat 178 m (584 feet) of unspecified area can provide general wetland habitat protection 200 m (656 feet) of unspecified area can provide diverse songbird habitat <200 m (656 feet) of riparian forest can provide reasonable habitat for all except the largest mammals As is apparent from these limited data examples, there is no single universal width that can provide all the desired benefits of a buffer. It can be stated, however, that the effectiveness of a buffer increases with its size. Wide buffers (e.g., 100 feet or greater in width) provide the best protection for water quality by moderating temperature changes and improving control of erosion, sediment and pollution and provide the widest range of wildlife values. It can be concluded that wider buffers also provide more 7 . . Tidal Wetlands Buffers Guidance Document Page 8 overall benefits such as reducing human disturbance, maintaining wildlife habitat and providing improved flood protection. However, even a narrow buffer (25 to 50 feet in width) can be effective for specific purposes in certain limited situations. For example, a 50-foot buffer supporting dense native vegetation might provide substantial aesthetic benefits and general avian habitat; however, it would not provide adequate entrapment of total suspended solids to meet the EPA goal of 80 percent unless combined with the implementation of other best management practices. Thus, it should be apparent that the optimum width of a tidal wetlands buffer depends upon a combination of on-site and adjacent conditions (topography, soils, upland use, etc.) and desired function of the buffer (water quality protection, wildlife habitat provision, physical barrier to human intrusion, etc.). IN GENERAL TERMS, WHAT DOES THE ULTIMATE TIDAL WETLANDS BUFFER LOOK LIKE? The answer will depend on what you want the buffer to do. Realistically, given Connecticut's historic patterns of development and irregular topography, it often will be difficult to provide a vegetated tidal wetlands buffer that can do it all. However, in general terms, the ultimate tidal wetlands buffer is relatively flat with only a very gentle slope, with undisturbed, moderately permeable soils and dense native vegetation with a heavy layer of leaf litter and is as wide as possible given the lot size, site conditions and proposed upland use(s). CREATING VEGETATED TIDAL WETLANDS BUFFERS: WHERE SHOULD WE USE VEGETA TED TIDAL WETLANDS BUFFERS? Tidal wetlands buffers should be located between tidal wetlands and adjacent upland development. Some water-dependent uses or water-dependent components of projects will likely require development within a buffer area, but water-dependent uses and tidal wetlands buffers are not necessarily mutually exclusive. Structures which provide private water access such as appropriately designed walkways or docks may also need to be sited within a buffer area; however, such access should be carefully designed and implemented to minimize potential adverse impacts to the abutting tidal wetlands. How BIG IS BIG ENOUGH? As indicated above, the size of an effective buffer is dependent on many factors and can be anywhere from a relatively narrow unmown area of a lot to a wide forested strip. The ideal buffer width will depend on the desired emphasis (water quality, wildlife habitat, temperature moderation, erosion control, etc.), the amount of available land, and the current or proposed use of the property. In general, a 1 DO-foot wide vegetated area will provide many of the desired buffer benefits. How CAN A MUNICIPALITY IMPLEMENT TIDAL WETLANDS BUFFERS? 8 . . Tidal Wellands Buffers Guidance Document Page 9 ~ Update zoning regulations to better protect sensitive tidal wetlands by establishing or increasing protective buffers between development and all tidal wetlands1. These buffers should be required landward of the upland limit of tidal wetlands. In those cases where steep slopes (25 percent or more) abut tidal wetlands, the buffer width should be measured in from the top of the slope. The most effective buffers support dense growth of shrubs and trees. (see below for model regulation language). ~ Most uses should be prohibited in vegetated buffers. A reasonable exception might be to allow limited access to and, in the case of general public access, along the tidal Wetland border. ~ Once buffers are established by regulation, they should be strictly honored. Variances of the minimum buffer width should only be allowed in those extremely limited cases where there is a strict statutory hardship as defined in the Connecticut General Statutes section 8-6(3) and where compliance with the buffer requirement would render an otherwise buildable lot unusable. ~ Revise subdivision regulations to require 100-foot wide vegetated buffers abutting all tidal wetlands in new subdivisions. ~ Revise zoning and subdivision regulations to limit clearing of vegetation adjacent to tidal wetlands and within buffer areas. Establish specific standards for the removal of invasive species and perhaps allow minimal clearing to enhance views and provide access where necessary while maintaining the effectiveness of the buffer. ~ Revise zoning and subdivision regulations to require larger minimum lot sizes in areas containing or abutting tidal wetlands. ~ You may want to consider adopting buffers to address other resource protection needs. Different approaches to creating vegetated buffers There are many different ways to structure a requirement for vegetated buffers. The most simple approach is to specify a fixed minimum width. While this is simple to administer, it may not be effective enough unless the minimum width is quite wide (100' or more). A wide fixed buffer may be hard to implement in Connecticut given our established development patterns that frequently resulted in housing and other development clustered along the edges of tidal wetlands. Nevertheless, this approach is attractive due to its simplicity. A second approach is to require that a minimum percentage of lot depth be established as a vegetated buffer. This provides some flexibility to respond to the constraints posed 1 For technical legal reasons, a municipality cannot establish a tidal wetlands buffer under its inland wetlands authority, however, this is not a problem because municipal planning and zoning authority is amply sufficient. 9 . . Tidal Wellands Buffers Guidance Document Page 10 by existing development. However, the common perception may be that owners of deeper (perhaps more valuable lots) are being penalized by being required to provide more buffer in overall width than owners of smaller, less deep lots. A third approach is the use of an equation that factors in specific site conditions such as slope, existing vegetation type (e.g., grassy, shrubby, forested), soil permeability and upland use(s). Often these equations can be quite complicated, municipal staff would require specialized training to enable them to determine the minimum buffer width on a case by case basis. Implementation and enforcement can be labor intensive and time. consuming. A fourth technique utilized by some states is to grade wetlands into categories based on their existing value and functions and establish minimum buffer widths that vary based on the category of abutting wetlands. This is not a practical approach to establishing tidal wetlands buffers in Connecticut as our general statutes do not differentiate between varying qualities or values of tidal wetlands. If a wetland area meets the definition of tidal wetlands its specific condition (e.g., pristine or degraded) is not relevant to the statutory responsibility to protected the resource. There are other approaches to establishing a tidal wetlands buffer that do not prohibit development within the buffer area, but include incentives for locating new impervious surfaces outside of the buffer. Usually these incorporate the creation of compensation areas based on the area of new impervious surface proposed within the minimum buffer area. This type of approach is attractive as it provides more flexibility than the other approaches noted above. However, establishing appropriate regulation language is a difficult task that requires careful and deliberate consideration. The suggested model regulation language offered below is fashioned after the most simple approach of designating a fixed, effective minimum width tidal wetlands buffers. Based on the data available, a minimum width of 100 feet is recommended for a fixed width vegetated buffer. MODEL REGULATION LANGUAGE Based on the above discussion regarding the value of tidal wetlands buffers and the types of approaches to requiring them, OLlSP offers the following model regulation language that establishes a uniform 1 DO-foot vegetated buffer adjacent to all tidal wetlands. Prior to adoption, this regulation may be tailored to the specific conditions and concerns in your municipality. A resource protection buffer of 100 feet shall be established along the upland edge of any tidal wetland as defined by Connecticut General Statutes section 22a-29(2). The width of the buffer shall be measured inland from the upland edge of the tidal wetlands except in the case of wetlands bordered by slopes greater than 25% in which case the buffer shall be measured inland from the top of the slope. The following uses and activities are prohibited within the buffer: 10 . . Tidal Wellands Buffers Guidance Document Page 11 1. new building construction that increases the building area or footprint including minor additions to existing buildings; 2. detached accessory buildings such as garages and sheds; 3. pools, tennis courts, patios, terraces; 4. driveways, parking areas; 5. other impervious surfaces; 6. seawalls, bulkheads, retaining walls, landscaping walls or similar structures; 7. grading, excavation or filling, including the construction of new septic systems; 8. land clearing, except for minor clearing to allow for appropriate landscaping or the provision of acceptable access as noted below; 9. dumping of lawn clippings and other wastes; and 10. the application of fertilizers and/or pesticides except when necessary to address a public health issue as determined by the local health official and/or the State Department of Health Services or to control an infestation of invasive vegetative species if authorized by the local conservation commission. The following uses and activities, although not expressly prohibited, are discouraged within the buffer area: 1. the establishment of new lawn areas; 2. extensive clearing or pruning. Minimal clearing to provide views may be allowed; however, to maximize the effectiveness of the buffer, pruning should only be done to the extent necessary to clear a view lane and in a manner that maintains the understory and, if forested, the canopy of the buffer area, i.e., no pruning should be conducted within three feet of the ground to protect the understory and, if wooded, no pruning should occur above 9 feet above the ground to protect the canopy. The following uses and activities are permitted and/or encouraged within the buffer area: 1. preservation of existing native vegetation, including shrubs and trees; 2. removal of invasive species and replacement with native species; 3. elimination and/or minimization of mowing to encourage a variety of native species including shrubs and trees; 4. planting of native vegetation; and. 5. provision of passive recreational opportunities, including the provision of public access where appropriate. However, such uses should be provided 11 . . . . Tidal Wetlands Buffers Guidance Document Page 12 at an appropriate scale so as not to significantly diminish the performance of the buffer as a measure to protect tidal wetlands from disturbance and/or degradation. For larger projects, passive recreation components within a tidal wetlands buffer could include provision of walking trails, benches, small-scale picnic areas, and associated amenities. This regulation does not prohibit the continued use, reconstruction or renovation of any septic disposal system, building, or other improvement in existence on the effective date of the regulation nor does it prohibit the construction of new improvements necessary for the function of water-dependent uses as defined by Connecticut General Statutes section 22a-93(16) except when those improvements can functionally be located outside of the buffer area. Variance of this regulation is strongly discouraged. Exceptions may be made only in those instances where strict adherence would render a parcel unusable. In those cases, the minimum variance necessary to make the parcel usable should be the maximum variance considered. PRIMARY REFERENCES 1. "How Ecology Regulates Wetlands" Washington State Department of Ecology, February 1992, Publication #97-112"Vegetated Buffers in the Coastal Zone: A 2. "The Scientific Basis for Protecting Riparian and Wetland Buffer Zones: A Summary of the Literature" REMA Ecological Services, LLC 3. Summary Review and Bibliography (Des bonnet et al. 1994) prepared by the Coastal Resources Center of the University of Rhode Island School of Oceanography 4. "Vegetative Buffers along Coastal Waters: a Case Study of the Chesapeake Bay Critical Area Program', Jenny Lynn Plummer, May 1993 5. "Wetland Buffers: Use and Effectiveness" Washington State Department of Ecology, February 1992, Publication #92-10 12 . ~ ~, 735 ptfl j;;l-t.; -O--r MAIliNG ADDRESS: P.O. Box 1179 Southold, NY 11971 Telephone: 631 765-1938 Fax: 631 765-3136 OFFICE WCATlON: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold, NY "ll: LOCAL WATERFRONT REVITALIZATION PROGRAM COORDINATOR TOWN OF SOUTHOLD RECEIVED MEMORANDUM DEe Town of Southold TOWn Board / Patricia Finnegan, Town Attorney .p From: Mark Terry, Principal Planner L WRP Coordinator SOL.j:,d:l Tl-,'n nefll To: Date: November 8, 2007 Re: "A Local Law in relation to Amendments to Chapter 275" The proposed local law has been reviewed to Chapter 268, Waterfront Consistency Review of the TOWn of South old Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided On the LWRP Consistency Assessment Form submitted to this department as well as the records available to me, it is my determination that the proposed action is CONSISTENT with the Policy Standards and therefore is CONSISTENT with the L WRP provided that the following best management practices and process recommendations are incorporated to further the below policy standards: Bulkheads 9275-5. Permit procedures, B. Administrative permit. (2) The following operations will be considered for administrative review: (j) The reconstruction ofa permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition ofa nonturfpervious buffer area. flOt to exceed 20 feet wide as defined in ~275 2. Cn) Minor alterations to existing permitted shoreline structures including . . stairs. bulkheads and docks. To clarify the intent of the administrative permit process, and assist applicants in the preparation of site plans; it is recommended that ~275-5.,B (2) (j) [3] declare a minimum buffer width to protect the adjacent natural feature This recommendation supports and furthers Policy 6.3. Protect and restore tidal a freshwater wetlands and sub-policy 6.3.D which is outlined below. 6.3 Protect and restore tidal and freshwater wetlands. D. Provide adequate buffers between wetlands and adjacent or nearby uses and activities in order to ensure protection of the wetland's character, quality, values, and functions. The adequacy of the buffer depends on the following factors: I. Potential for adverse effects associated with the use. Uses such as those involving hazardous materials, on-site sewage disposal, or mineral extraction have high potential for adverse effects and may require substantial buffer. 2. The nature and importance of the wetland and its benefits. Substantial buffers may be necessary to avoid adverse effects from adjacent or nearby uses based on the nature of the land use and the characteristics of the affected wetland. 3. Direction and flow of surface water between a use and adjacent or nearby wetland. Buffer widths may be reduced in areas where drainage patterns normally do not lead directly to the wetland and where adverse affects on the wetland, other than those due to runoff, are not likely. 4. Buffer width necessarv to achieve a high particulate filtration efficiency of surface runoff as determined by vegetative cover type. soil characteristics. and slope of land. 5. Other management measures or design alternatives to protect wetlands from adverse effects where site constraints do not allow sufficient buffer width. In addition, it is recommended that the term "alterations" in ~275-5., B (2) (n) be defined. The term "alteration" implies change in configuration or design. Consider changing the word "alteration" to "repairs". Dredl!:inl!: Comments on ~275-5., B (2) (p): (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the property and in event at the discretion ofthe Board of Trustees. In addition, to clarify the intent of this proposed amendments, it is recommended that the following Chapter 275. Wetland and Shoreline, regulations applicable to dredging be referenced by section or specified as conditions of the process. The recommendations will . . further Policy 5.3. Protect and enhance quality of coastal waters (below) and Policy 6.3 Protect and restore tidal afreshwater wetlands (above). ~ 275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (2) Erosion control. Installation of an erosion control structure is necessary during any building, grading, landscaping or site work activity within Trustee iurisdiction. This structure may include, but is not limited to, installation of a silt fence, hay bales, wood chip berm and silt booms. The placement of the erosion control structure(s) shall be determined by the Trustees or their designee. All intertidal construction and excavation requires the installation of a silt boom that will retain all suspended sediments within the immediate proiect area. (3) Dredging. (a) Creeks. [1] Maintenance dredging (as defined in ~ 275-2) only is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. [2] Dredging may be permitted when it can be demonstrated that the actions of man have resulted in impairment to water quality or habitat value. [3] Dredging in, or in close proximity to salt marsh vegetation (Distichlis spicata, Spartina alternifIora or Spartina patens) or seagrass (Ruppia maritia or Zostera marina) meadows is prohibited. (b) Freshwater wetlands. Dredging offreshwater ponds may be permitted when it can be demonstrated that such action will restore the water body to an historic condition, improve water quality or habitat value. ~ 280-8. Effect of establishment of districts F. Notwithstanding the limitations imposed by any other provisions ofthis chapter, no building, dredging or filling operation shall be permitted below the datum of mean high water of tidal waters unless such building, dredging or filling operations have been duly authorized and are conducted in conformity with all laws, ordinances, rules and regulations of all governmental agencies having jurisdiction thereof. Policy 5.3. Protect and enhance quality of coastal waters. 5.3 Protect and enhance quality of coastal waters. A. Protect water quality based on an evaluation of physical factors (pH, dissolved oxygen, dissolved solids, nutrients, odor, color and turbidity), health factors (pathogens, chemical contaminants, and toxicity), and aesthetic factors (oils, floatables, refuse, and suspended solids). . . B. Minimize disturbance of streams and creeks including their bed and banks in order to prevent erosion of soil, increased turbidity, and irregular variation in velocity, temperature, and level of water. C. Protect water quality of coastal waters from adverse impacts associated with excavation, fill, dredging, and disposal of dredged material. Pursuant to Chapter 268, the Town Board shall consider this recommendation in preparing its written determination regarding the consistency of the proposed action. Cc: Lori Hulse, Assistant Town Attorney Kieran Corcoran, Assistant Town Attorney . 1l~ fJ 1/ lij'fI07 . 7: 3~ R~CEIV:D DEe 4 Paul Stoutenburgh 4015 Skunk Lane Cutchogue, NY 11935 Sou~',d! T"-";'lt t"~~"!i..l ," "- '-' ..... ". ...,,, December 2, 2007 Supervisor Scott Russell Members of the Town Board Re: Public Hearing Chapter #275 Revisions Dear Supervisor Russell and Town Board Members: Let me relate a bit of history so that the pending legislation before you can be better understood. In the early days of the Trustees they were unaware of the value of the wetlands. It was a time when development of our creeks and bays took priority over conservation or preservation. It was a time of "give away" of our most valuable resources, our wetlands. The word environment was not part of the standard vocabulary. Gradually through time, the importance and concern for our wetlands grew and the public along with the NFEC tried in vain to stop the filling of our wetlands with dredge spoil. One of the chief reasons nothing was done to stop this policy was that there were no rules or regulations governing what could or could not be done to our wetlands. Realizing the need for a legal document of some sort the NFEC requested the Town Board correct this situation by drawing up a Wetlands Ordinance. Once again, I must reiterate this was a period of contempt for anything that included the word environment or preservation. After much haggling and a number of public hearings, a weak Wetlands Ordinance was drawn up and passed by the Town Board. Today we have a much more enlightened Town Board and Board of Trustees. Most realize the importance of these most valuable wetlands. Both boards realize most of the legislation that Southold Town is built on, is in continual change. When situations change and new information becomes available, codes should incorporate or delete accordingly. This is exactly what the revisions of Chapter #275 do and why I am asking you to vote yes to this important resolution. Times change and codes need to be changed to keep up with the times. In the future there will need to be more done to the wetlands code but this resolution should be passed now to correct conditions that presently exist in it (i.e. having contractors apply for permission to put windows or doors in existing structures, etc. etc.). Thank you for taking time to let me be heard. Sincerely, Paul Stoutenburgh Past Town Trustee 6 years - Town Councilman 4 years . 11t': r' 7,;}5/Jm /. j /cJ-{ 'I/o 7 MAIliNG ADDRESS: P.O. Box 1179 Southold, NY 11971 PLANNING BOARD MEMBERS JERILYN B. WOODHOUSE Chair KENNETH L. EDWARDS MARTIN H. SIDOR GEORGE D. SOLOMON JOSEPH L. TOWNSEND OFFICE WCATION: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold, NY Telephone: 631765-1938 Fax: 631 765-3136 PLANNING BOARD OFFICE TOWN OF SOUTHOLD MEMORANDUM To: Scott Russell, Supervisor Members of the Town Board From: Jerilyn Woodhouse, Chair 801-,\ Date: November 29, 2007 Subject: Planning Board comments - Proposed Local Law in relation to Amendments to Chapter 275 As requested, the Planning Board reviewed the proposed amendments to Chapter 275. We agree that the changes accomplish the stated purposes of strengthening enforcement, simplifying the permit process, and clarification. The Planning Board supports the proposed local law in relation to Amendments to Chapter 275. , . ~f:~fI 7'3SfJl1 (ell'! /6 I RECEIWO Southold Town Board Po Box 1179 Southold, NY 11971 DEe o ~) SOUfll(jld 11, 'c>" (I I. "'~.' r~ erR Remarks for hearing on Proposed changes to LL 275 Dear Board Members: The Town Board has rescheduled this hearing on the Proposed Changes to Local Law 275. That's a good thing. The public needs the opportunity to ask questions about these changes and to voice their concerns. These changes appear to be very onerous and will greatly impact the value, use and cost to keep, waterfront homes. The problem is that most of those affected by these changes are not in town. I hope the discussion of the important changes will be postponed until such time as the owners have time to consider the impact and are able to respond, and the input the board needs to hear will be received. My problems with the changes, are as follows: I. I agree with the need for flexibility in deciding Trustee matters. And black letter law can only lead to onerous and expensive requirements for us to fulfill. But certainly we should be able to better define much of what is in these changes to provide the homeowner with a clearer understanding of what the requirements are. Example: functional. The way I read it I can not determine if my structure is functional. And Functional seems to tie in to the concept of grandfathering and the wording "permitted by this chapter", leading me to believe that ifmy 1949 house is heavily damaged, therefore not "functional" after the loss, and not permitted by this chapter because this chapter is 2004, I no longer have the right to rebuild. That sounds like a taking without compensation. 2. The changes concerning CCA and treated lumber, take out specific tidal flow rates that I would think came from the NYSDEC March 2000 document entitled Assessment of the Risks to Aquatic Life from the Use of Pressure Treated Wood in Water. In that document the Best Management Practices for the use of Treated wood are outlined. Why would we not utilize this DEC document to specify the construction standards for the use of such material? . . 2 3. Also, I would ask about the fines, prison terms and punishments. I agree you need teeth in the law to protect us from an owner out to do harm to the environment. But I really believe the vast majority of your time is spent with homeowners like the ones that I know who are well intentioned but may be uninformed. It seems that to not have a warning notice as a first step to the severe punishments is too harsh. Many are confused, as am I, by the regulations and when they apply. Give me a warning that says you can't do that without a permit. 4. Lastly, I believe the waterfront folks deserve and expect laws that derive from a consensus that is fair and balanced. Much of this is not. For instance, the burden I see being placed on the homeowner. We know the water quality of our bays today is healthier than it was 10 years ago, everyone is on board and things are getting better with more awareness of environmental issues. But the government with this law, puts the homeowner in the position of guilty until proven innocent. That is contrary to all other aspects of law, people who have property can not have it taken away unless the government proves its existence is unsafe, harmful or antisocial in some way. In the Trustee's jurisdiction, it seems I am in the position that I must somehow prove the negative, that my house, dock, etc, does not do something harmful, which if not impossible, is very expensive. Rather, the government should be able to cite the science that proves the positive, e.g. that my house in its location before the fire, was a hazard to public safety, poisoning the bay, etc. and therefore should not be permitted. The government's failure to be able to prove that should allow my house to stand. How can the burden of proof be shifted to the homeowner in a system that we could call fair, equitablejust and reasonable and balanced? ~o.., ~o~nsideration, }//L_ o' er'" 7~~ 225 Calves Neck Road Southold . 1le PH 7'J'5' /J,- -1-01 MORTH FORK EMVIROM-..EMTAL COUMCIL, IMC. 12700 Main Road, PO Box 799, Mattituck, NY 11952 nfec@optonline.net 27 November 2007 Members of the Southold Town Board Southold Town Hall PO Box 1179. Southold, New York 11971 Tel.: 631-298-8880 Fax: 631-298-464"'ECEIVED www.nfec1.or<;!' NOV 2 7 2007. South old Town (Ier' Subiect: Comments on Draft Local Law Re!!ardin!! Chapter 275 Wetlands and Shoreline bein!! heard on 4 December 2007. Dear Town Board Members: The issue before us is the adequacy of Chapter 275 (Wetlands and Shoreline) of the Town Code. It is inadequate and must be comprehensively fixed. The Board of Town Trustees has proposed some changes (the topic of this hearing) "to protect the natural protective areas existing within the Town. These amendments are intended to support the protection of environmental features within the Trustees jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas". That's what the legislative purpose states. The North Fork Environmental Council supports these amendments. They are beneficial. But they only address a fraction of the problem. We urge you to make a more comprehensive change than just the changes in this draft local law. There is more you need to recognize and more you need to do. Chapter 275 has some astounding weaknesses that have been pointed out by the North Fork Environmental Council. We have been joined by The Nature Conservancy and by the Town Board's own Local Waterfront Revitalization Council Coordinating Committee. The Town Board needs to fix these weaknesses, The Trustees operate under rules established by the Town Board. Yes, the Trustees hark back to the ideas established by the Andros Patent, but the Trustees, as owners of common lands in trust, were actually established by the New York State Legislature in 1893 to manage and dispose of those lands. Only Chapter 275 passes to the Board of Town Trustees the Town Board responsibility to regulate private wetlands and shoreline - and it does not do a good job of making that responsibility clear. As a first step the Town Board needs to fix the code and establish the operational authority and responsibility of the Board of Town Trustees in the context of existing State Law. Once that is done the Town Board needs to fix the operating parts of the code and empower the Trustees with effective rules: - --------.--a non-profit OrganizatlOnfori:he pteservatlo-n Of land, sea. air and quality of life ~ printed on tJ recycled paper . . · Extend the jurisdiction to ISO feet upland of the wetlands. · Increase the stated setback distances. · Establish a vertical setback distance to ground water under cesspools in the AE flood zone. · Authorize the trustees to adjust the rules by only up to 50% of the requirements stated in the code, provide criteria for such variance and make the balance black letter law relieved only by impossibility. · Establish a local appeals board. In all, our report of a year ago details twelve weaknesses and their corrections. The Nature Conservancy calls for action. The Local Waterfront Revitalization Plan Coordinating Committee calls for action. We call for action. We urge you to promptly address the flaws we continue to call to your attention and to make an efficient comprehensive change. The North Fork Environmental Council wants the Southold Trustees to be properly enabled. ).illCe)ely, { -f\{i. - Ray Haington for the ~ a d Use Committee cc: The Nature Conservancy The Local Waterfront Revitalization Plan Coordinating Committee Southold Board of Town Trustees r 'j , #8616 STATE OF NEW YORK) )SS: COUNTY OF SUFFOLK) Karen Kine of Mattituck, in said county, being duly sworn, says that she is Principal Clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper once a week for -1- week(s), successively, commencing on the ~ day of No",mbo,_ 2007. k ~ /~ Principal Clerk 2JJ Sworn to before me this in sensitive areas. (I) Lighting: Any and all lights aSSQ dated with bulkheads, retaining wall~ stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not he on unless the waterfront is in active use. e. In water. The following standards are required for all in-water operations adjacent to residential properties. Op- erations conducted on properties zoned Ml or M2 may be given greater flexibil- ity in these requirements given the wa- ter-dependent nature of their use. (2) Docks. (a) [3J In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold the use of lumber ~treated with ani orescrvative including hut not limited to chromated copper arsenate (also known as "CCA"), commercial Copper quat (CCO), ~ penta products,.A.!.ka.: line Conner OUat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv Dart of a structure in low tidal flow wetland areHS as determined bv the Trustep.s. The use of creosote is nrohibited. Sill.J...IJ, ll..... ~ use of tropical hardwoods is prohibited unless it is certified bv the Forest Stew- ardship Councilor similar organization. Materials used for structural compo- nents shall be determined at the discre- tion of the Trustees. (b) Dock locations and lengths, [3] [a] C:.~" tll~ til.;'1u<:- .:...d ,k.u~;ti..... IliltUlul ~"';l~","~"t"1 ~h.u~u~t.:.;~t;..... ek..k..;bcJ;u tl,~ To.,.. ofS~...tI.~ld L..""...l 'l.'tl.t~,f"",l R~.;t<'lJ:LUtiG.. PI.:... ulld ll.(. Nc.. 1.\"',k Sl...t~ D~t-'...~t...~..t ~f Stat" s:s";r;.:,,..t IIub;t.:.t d~.'\~.;t-'t~u~, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands .in the following areas: Downs Creek, Hal- locks Bay, Hashamomuck Creek and Pond. Lonp' Creek (branch of MMtituck Creek East of Grand Avenue bridp-e) Pine's Cove Creek and West Creek. [3] [dJ No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other inter- tidal areas or freshwater wetland~ cent that floats 20 feet in len~th or small_ er and boats In feet in len~th or smaller mav be stored above mean hil:rh tide on .-- L A1T1'.!:.l'\1' I"HUUU81L&~.au.. IWO:) II":) If9 ln~OPU!i\\ Upa[) .lalS!W sawOH .. ~O.tS .. SN3:IDi~S" SJ.HDJ'1}.)IS .. q=f/ WJVcl ew ~JOil qJJON HflOuJiWS ONINV3'OMOONIM YV3,O '\fJ.SAI:I~ without .~. - , BE IT ENACTED by the Town R'-"ard of the Town of Soutbold as follows: .~ L Purpose - In order to provide for the health, safety and welfare of the citizens of. the Town of Sou~old, and to protect the natural pr?~tIve areas existing within the Town. It lS necessary to make certain amendments to Chapter 275. These amendments are ~tended to support.the protection of en~<!nn;Le~tal features within the Trustees' JurisdICtIOn, strengthen enforcement, sin;~~~ the permit process and clarify actiYltieS that may be conducted in protected areas. n. Chapter 275 of the Code of the Town of Sotlthold is hereby amended as follows: ~275-2. Definitions; word usage. ArCESS PATH -~ an Hrea clearedbv hand or hand-held ea~li,?ment nO,more than 4 feet wide lp.ft In Its nahlTal 'State and devoid of any manrnooe!ttructure to provide a walkwav to a hodv of wate~. DOCK -- Any permanent Of seasonal structure, except a building, located or posed to be located on lands abut. f~~ or comprised of freshlvater or tidal wetlands or connected to. a bulkhead or the upland and extendmg.over the _ water's surface, designed to secure ves. sels and provide access from the: shore t~ a body of water. For the purpose of thIS chapter, this term shall also. include the associa.teO.,5trUctW'e necessary to cro~ wetlands and.. adjacent na~ral areas. , 1be term. "dock" includes .th:,}erms -"wharves," "piers," ,"fixed docks, float- lin docks,"2["Ooats".,....~ ~..4f.,..4:Ik,;" ; gFtJNrnONAL_AnYStrtlChlr~th~t. S:.- in its current!rtllt6.nrimaril~ retams Its pllmose and use as determmed. bv the ~ Roardoi'frustees.. -, R . NONDISTURBANCE BUFFE _/'tftA'vep'etated area, t)1';....:.1I)S8 k:ct P, wide'a minimum of 10 feet wide ?S desl~- ~ nated hV tbe Board of'Tnlstees. tmDledl- .u ately landward of the wetland ~unda;rY, . shoreline structure, or other line deSig- nated by the lhtstees where: no. o~ra- .s tions; maintenance, placement of .Sl'l"S B or other activities ~ ,~ take -place, 11 excent that manmalte debtls may ~ S] moved from such area bv hHnd Without ID the nermission of the BoardofTI-ustees. QJ RESIDENTIAL DOCK -- -Any - ~ waHt; ftxed dock and/or floating dock ,ill desiined or constructed as a continuou.s .D1i unit. topro~.'l.' ."...:-.c:. t~'~. .U1e,Surfa.'r~;:~ lID t~rsfrom,,~ot'~.., . ," '. all ill> tiaI~.Thete.. ""'. . . and assoctatedstru~CIt; 'k~'", mooringp1les.' ,.. " <I~ 1275-4. FtCeptiOm. . A.1beprovisions of this ~Uli,al1. not ~fh.,;.l ~~ ~.~U:t Mtr~ ..,. 11 per- mit for the follo~g: .' ',., , ' (4) The o~inar):'Md usual~O~s relative to reside;ntial b9~I~IDtWn 'C'l,. .~; ,Ie ~ ',,:,1, 7'r day of }jtr/ - 2007 C10~ (ff (J)vJ) ,- .-" . :,~ "-."):,., n':1 -...:, -"',", ~ '..... ,.., - \...,~., ,j , ",- u, S ,1 -'--'. ...., '-~ cumulation of silt from nm-off or o~~er ~..;':ulllstances not the result of actlVltv h or on behalf of the owner of the nron. e~ and in event at the discretion of the Boa.rd of Trustees. ~275-7. Fees. . . F DredP"in2 Fee E:verv ,a.v~hcatlon for a nermit for c1reclp'lnp' wlth~n Town- oWned underwater lands shall mclude a fee a!1. set hv the Town Board based o~ the amount of cuhic yard of dredp-e snoil to be removed. . ~275-10. Contents of permit. . L A statement thHt "The nermlttee is r~lIired to c.onsnicuolIslv post the permit and have the. sl1n~ortlnp-. plHns l'IVH11ahle. for immedlate msp,t>,chon at the worksite at the commen~me~t of work until which time tbe nt01&t IS cbmnleted," . fi275~11. Construction and operation standards. . d A General. The followmg st,an~ar s are required for all op.erations Wlthu\ till;: jurisdiction of the 'fiustees:J (4) Fences. In general, fences are pro- hibite:<! from beaches and wetland.areas. Any (Anee. ba-rril'Qde.or im{)l".cIiment to ~tri:m traffic on the Jv.J:lr.h o~ ~et- hind area in violation of the prOVISIOns . of this chllpter sha.lI be. removed upon written notice to the owner of tb~ ptem- i!l.es unon whi.ch'snch fence barnca~e or lmperlimP-nt is located sent bv ce~lfted or Tep'istered mAil Such fence harncade or impediment mall he removed hy the owner wit~in 30 dayS of the dat~ of the nntice.llnnn faituretn l"nm-nlv Wlth .such nnti"..e the Ruildfnp- Inspector Code En- fn . m~nt Offico.p.r or Ba.v rnMtable ~av . :rre . C'AUlle tbe removal of the Ille- remove nr ..' dP. fal stnlcture If anv ~~n~~~~ . or imoediment is determmed nv'-the BUll~- in'" Tnsnector Code Fnforcement Offi- cer or Bav C.onstahle to create a hazard to the health safetv or welfare of tbe public such stmcture may he rp.I?oved and disoosed of bv the To~ Without . ~oth'~,,!.~J~V~1 E~~~:.all~ n.. ;- cIlTr&d:bvth.eT~for the.rerno~l of such. fP.nC'e hB..dto,;'~p ,or 1_,...PliIm.ent shall he the re~nsibilitv nf the owner. The ToWn mavnunu~ a~.a~d ,all rem- ~~:':I;~~~~r - "~~~~. . . < LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN, there has been presented to the Town Board of the Town of South old, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" AND NOTICE IS HEREBY FURTHER GIVEN that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th day of December 2007 at 7:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of South old is hereby amended as follows: 9275-2. Definitions; word usage. ACCESS PATH -- an area, cleared bv hand or hand-held equipment. no more than 4 feet wide, left in its natural state and devoid of anv manmade structure, to provide a walkwav to a bodv of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or . . connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eat~.valks. " FUNCTIONAL Anv structure that. in its current state. primarilv retains its purpose and use as determined bv the Board of Trustees. NONDISTURBANCE BUFFER - An- A vegetated area, typically 59 feet y,qde !! minimum of 30 feet wide as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities ean mav take place. except that manmade debris mav be removed from such area bv hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any catwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. 9275-4. Exceptions. A. The provisions of this chapter shall not affect or probibit Ror require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside anv designated buffer area are not included in this exception. landward of the wetlllfl6 beillldary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted bv this chapter. eJ[istiRg and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows. roof shingles. doors. dormers and siding on existing structures onlv. (11) Notwithstanding the above listed exceptions. activitv within a designated non-disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: . . [3] Any such activities shall require the addition of a nonturf pervious buffer area. not t6 exceed 29 feet wide as defined in ~275 2. m Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs. bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing. established yard area when more appropriate upland placement is not possible. Installation. burial or removal of a propane tank less than 25 feet from wetlands is generally prohibited. (p) Dredging work caused bv the accumulation of silt from run-off or other circumstances not the result of activity bv or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. ~275-7. Fees. F. Dredging Fee. Everv application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic yard of dredge spoil to be removed. ~275- I O. Contents of permit. L. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." ~275- I I. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence. barricade or impediment shall be removed bv the owner within 30 days of the date of the notice. Upon failure to complv with such notice. the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector. Code Enforcement Officer or Bav Constable to create a hazard to the health. safety or welfare of the public. such structure may be removed and disposed of bv the Town without prior notice to the owner. Upon removal bv the Town. all costs and expenses incurred bv the Town . . for the removal of such fence, barricade or impediment shall be the responsibilitv of the owner. The Town mav pursue any and all remedies available at law to recover any unpaid costs associated with removal, including filing a statement with the Town Assessors, identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors, in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levv against such property, shall constitute a lien and shall be collected and enforced in the same manner, bv the same proceedings, at the same time and under the same penalty as is provided bv law for the collection and enforcement of real property taxes in the Town of Southold. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet of fence is allowed, no larger than 12 inches by 12 inches square. (2l Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for onlv one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned Ml or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), 6fsesete, penta products, Alkaline Copper Ouat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined bv the Trustees. Anv use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls, stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. . . C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned Ml or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), creesete, penta products, Alkaline Copper Ouat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. The use of creosote is prohibited. Similarly, tHe The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be aetermined at the discretion ofthe Trustees. (b) Dock locations and lengths. [3] [a] Given tHe unique and sensitive natural environmeRtal cHaracteristies deseribed in tHe Tev."H ef SelltHeld Leeal Waterfrent Re...italimtion Plan ana the New Yerk State Departmellt efState SigniHeant HaIlitat deseriptions, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek. East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. [3] [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands. except that floats 20 feet in length or smaller and boats 16 feet in length or smaller may be stored above mean high tide. on blocks at a minimum of 12" above grade. during the period beginning November 1 through May 1. (c) Regulations for the placement and configuration of docking facilities. (3) g275-12 A &275-12 B A. . '. [I] Residential docks. [a] Only one deek. catwalk may be permitted per residential lot. Only one mooring or dock may be IHseriftg is permitted per residential lot. Upon a showing of special need due to low water leyel and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined by the Trustees; Dredging. (a) Creeks. [I] Only maintenance dredging (as defined in g275-2) ealy is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (f) All dredging applications must demonstrate a specific location for the deposit of dredging material. Standards for Issuance of permit Stop work orders. The Bay Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bay Constable or Code Enforcement Officer shall issue a stop-work order to halt: (I) Any work that is determined by the Bay Constable or Code Enforcement Officer to be contrary to any applicable provision of this Chapter. or: (I) Any work that is being conducted in a dangerous or unsafe manner in the opinion of the Bay Constable or Code Enforcement Officer, without regard to whether such work is or is not work for which a trustee permit is required. and without regard to whether a trustee permit has or has not been issued for such work; or (2) Any work for which a trustee permit is required which is being performed without the required trustee permit. or under a trustee permit that has become invalid. has expired. . . or has been suspended or revoked. B. Stop-work orders shall: (1 ) Be in writing; (2) Be dated and signed bv the Bav Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) If applicable. state the conditions which must be satisfied before work will be permitted to resume. C. The Bav Constable or Code Enforcement Officer shall cause the stop- work order. or a COpy thereof. to be served on the owner of the affected property. and if the owner is not the permit holder. on the permit holder. personal Iv or bv certified mail to the owner or permit holder and posting at the work site. The Bav Constable or Code Enforcement Officer shall be permitted. but not required. to cause the stop-work order. or a COpy thereof. to be served on any or all of the following: builder. architect. tenant. contractor. subcontractor. construction superintendent. or their agents. or any other person taking part or assisting in work affected bv the stop-work order. personally or be certified mail and posting; provided. however. that failure to serve any person listed above shall not affect the efficacy of the stop-work order. D. Upon issuance ofthe stop-work order. the owner ofthe affected property. the permit holder and any other person performing. taking part in or assisting in the work shall immediately cease all work which is the subiect of the stop-work order. E. The issuance of a stop-work order shall not be the exclusive remedy available to address any event described in this section. and the authority to issue a stop-work order shall be in addition to. and not in substitution for or limitation of. the right and authority to pursue any other remedy or impose any other penalty under any other applicable local or state law. Anv such remedy or penalty may be pursued at any time. whether prior to. at the time of. or after the issuance of a stop-work order. 9275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. . . (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to 9275-10 shall be subject to a fine of not more than $1,000. (3) Failure to heed a eeaae and desist order stop work order. Any person conducting operations in direct contradiction to the terms of a stop-work order shall be subject to a fine of not less than $1000 and not more than $;!GOO. $4000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1000 nor more than $;!GOO $7500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specifY a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to comply with a restoration plan. Any person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $1,000 and not more than $4.000. ~ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigatiye measures, such as off-site wetland restoration or creation, may be required. C. The Trustees may revoke a permit when a violation of this Chapter or Chapter III is found on the same property. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are JLnamed as defendants in an outstanding or unresolved wetland vielatien.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. . . IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law Dated: October 23, 2007 BY ORDER OF THE TOWN BOARD OF THE TOWN OF SOUTHOLD Elizabeth Neville Town Clerk PLEASE PUBLISH ON NOVEMBER 29.2007. AND FORWARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE. TOWN CLERK. TOWN HALL. P.O. BOX 1179. SOUTHOLD. NY 11971. Copies to the following: The Suffolk Times Town Attorney Trustees Town Board Members Town Clerk's Bulletin Board . . STATE OF NEW YORK) SS: COUNTY OF SUFFOLK) ELIZABETH A. NEVILLE, Town Clerk ofthe Town of Southold, New York being duly sworn, says that on the ~ day of Nnu€M.lkx,N', 2007, she affixed a notice of which the annexed printed notice is a true copy, in a proper and substantial manner, in a most public place in the Town of South old, Suffolk County, New York, to wit: Town Clerk's Bulletin Board, 53095 Main Road, Southold, New York. Chapter 275 - 12/4/077:35 pm ~Mj O'fir..-U, Elizabeth A. Nevi e Southold Town Clerk Sworn before me this d;;O~beN,2007 . YY\ ~.O _ otary Public LYNDA M. BOHN NOTARY PUBLIC, State of New York No. 01 B06020932 Qualified in Suffolk County Term Expires March 8, 20.1.l.- . . ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork. net OFFICE OF THE TOWN CLERK TOWN OF SOUTH OLD November 14, 2007 Re: Reso. #870 regarding proposed Local Law m relation to "Amendments to Chapter 275" Andrew FreeIing, Director ofPlamring Suffolk County Department ofPlamring Post Office Box 6100 Hauppauge, New York 11788-0099 Dear Mr. Isles: The Southold Town Board at their regular meeting on November 7, 2007 adopted the above resolution. Certified copy of same is enclosed. Please prepare an official report defining the Plamring Commissions recommendations with regard to this proposed local law and forward it to me at your earliest convenience. This proposed local law has also been sent to the Southold Town Plamring Board for their review. The date and time for the public hearing is December 4. 2007 at 7:35PM. Should you have any questions, please do not hesitate to contact me. Thank you. Very truly yours, ~Q~ Elizabeth A. Neville Southold Town Clerk Enclosures cc: Town Board Town Attorney . ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER . Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Jerilyn B. Woodhouse, Chairman Southold Town Planning Board Southold Town Hall Southold, New York 11971 Dear Ms. Woodhouse: November 14,2007 Re: Resolution No. 870 regarding proposed Local Law in relation to Amendments to Chapter 275 / The Southold Town Board at their regular meeting held on November 7, 2007 adopted the above resolution. A certified copy of same is enclosed. Please prepare an official report defining the Planning Board's recommendations with regard to this proposed local law and forward it to me at your earliest convenience. This proposed local law has also been sent to the Suffolk County Planning Department for their review. The date and time for the public hearing is December 4, 2007 at 7:35 PM. Should you have any questions, please do not hesitate to contact me. Thank you. Enclosures (I) cc: Town Board Town Attorney Very truly yours, ~O~ Elizabeth A. Neville Southold Town Clerk . . RESOLUTION 2007-870 ADOPTED DOC ID: 3304 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-870 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON NOVEMBER 7, 2007: RESOLVED that the Town Board of the Town of South old hereby amends resolution 2007- 792. adopted at the October 9. 2007 reeular Town Board meetine to read as follows: WHEREAS, there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275" now, therefore, be it RESOLVED that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th day of December 2007 at 7:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose -In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen Resolution 2007-870 · Board !ting of November 7, 2007 enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of Southold is hereby amended as follows: S275-2. Definitions; word usage. ACCESS PATH -- an area. cleared bv hand or hand-held equipment, no more than 4 feet wide. left in its natural state and devoid of anv manmade structure. to provide a walkwav to a bodv of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eat',valks." FUNCTIONAL - Anv structure that, in its current state. primarilv retains its purpose and use as determined bv the Board of Trustees. NONDlSTURBANCE BUFFER - Aft- A vegetated area, typically 50 feet '.'iide ~ minimum of 30 feet wide as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities eaIl mav take place. except that manmade debris mav be removed from such area bv hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any catwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. S275-4. Exceptions. A. The provisions of this chapter shall not affect sr prshibit flSf require a permit for the Updated: 11/7/20073:15 PM by Lynda Bohn Page 2 Resolution 2007-870 following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside anv designated buffer area are not included in this exception. laJldward ofiile \'IatlaRd bOllRdary. The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted bv this chapter, s)(iGtiRg and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows, roof shingles, doors, dormers and siding on existing structures only. (II) Notwithstanding the above listed exceptions, activity within a designated non- disturbance buffer is prohibited. . Board !ting of November 7, 2007 (5) B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. Rot to ellosed 20 feet '.vide as defiRes iR p75 2. m Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing, established yard area when more appropriate upland placement is not possible. Installation. burial or removal of a propane tank less than 25 feet from wetlands is l?,eRerall'! prohibited. Updated: 1117120073:15 PM by Lynda Bohn Page 3 Resolution 2007-870 (p) · Board ~ting of November 7,2007 Dredging work caused bv the accumulation of silt from run-off or other circumstances not the result of activity bv or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. 9275-7. Fees. F. Dredging Fee. Everv application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic yard of dredge spoil to be removed. 9275-10. Contents of permit. L. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." 9275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation ofthe provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence, barricade or impediment shall be removed bv the owner within 30 days of the date of the notice. Upon failure to complv with such notice. the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector. Code Enforcement Officer or Bav Constable to create a hazard to the health. safety or welfare of the public. such structure may be removed and disposed ofbv the Town without prior notice to the owner. Upon removal bv the Town. all costs and expenses incurred bv the Town for the removal of such fence. barricade or impediment shall be the responsibility of the owner. The Town may Updated: 11/7/20073:15 PM by Lynda Bohn Page 4 Resolution 2007-870 · Board Jlting of November 7, 2007 pursue any and all remedies available at law to recover any unpaid costs associated with removal. including filing a statement with the Town Assessors. identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors. in preparation of the next assessment roll. shall assess such amount upon such property. Such amount shall be included in the levy against such property. shall constitute a lien and shall be collected and enforced in the same manner. bv the same proceedings. at the same time and under the same penalty as is provided bv law for the collection and enforcement of real property taxes in the Town of South old. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet of fence is allowed, no larger than 12 inches by 12 inches square. m Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for onlv one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water- dependent nature of their use. (I) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with any preservative. including but not limited to chromated copper arsenate (also known as "CCA"), ereesete, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined bv the Trustees. Anv use of creosote is prohibited. Preservatives of any type, Updated: 11/7/20073:15 PM by Lynda Bohn Page 5 · Board ~ting of November 7,2007 including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. Resolution 2007-870 (I) Lighting: Any and all lights associated with bulkheads, retaining wall~ stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), ereesete, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be aeterminea at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] Given the HIlique ana sensitive natural elP/irellfHental eharaeteristies aeseribea in the T ewn ef Seuthela Leeal Waterfrent RevitlllizMien Plan ana the New Yerk StMe Updated: 11/7/2007 3: 15 PM by Lynda Bohn Page 6 . Resolution 2007-870 [3] [d] Board ~ting of November 7, 2007 Department ef State Signifieant Habitat deseriptiens, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek, East of Grand A venue bridge), Pipe's Cove Creek and West Creek. No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands, except that floats 20 feet in length or smaller and boats 16 feet in length or smaller mav be stored above mean high tide, on blocks at a minimum of 12" above grade, during the period beginning November I through Mav 1. (c) Regulations for the placement and configuration of docking facilities. [1] Residential docks. [a] Only one cleek, catwalk mav be permitted per residential lot. Onlv one mooring or dock mav be maaring is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees: (3) Dredging. (a) Creeks. [1] Only maintenance dredging (as defined in g275-2) effiy is Updated: 11/7/20073:15 PM by Lynda Bohn Page 7 (f) . -. Board ~tmg of November 7, 2007 permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. All dredging applications must demonstrate a specific location for the deposit of dredging material. Resolution 2007-870 g275-12 A &275-12 B Standards for Issuance of permit Stop work orders. , A. The Bav Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bav Constable or Code Enforcement Officer shall issue a stop-work order to halt: (! ) Anv work that is determined bv the Bav Constable or Code Enforcement Officer to be contrary to any applicable provision ofthis Chapter, or: (! ) Anv work that is being conducted in a dangerous or unsafe manner in the opinion of the Bav Constable or Code Enforcement Officer, without regard to whether such work is or is not work for which a trustee permit is required, and without regard to whether a trustee permit has or has not been issued for such work; or (2) Anv work for which a trustee permit is required which is being performed without the required trustee permit, or under a trustee permit that has become invalid, has expired. or has been suspended or revoked. B. Stop-work orders shall: (!) Be in writing; (2) Be dated and signed bv the Bav Constable or Code Enforcement Officer: (3) State the reason or reasons for issuance: (4) If applicable. state the conditions which must be satisfied before work will be permitted to resume. c. The Bav Constable or Code Enforcement Officer shall cause the stop-work order, Updated: 1117120073:15 PM by Lynda Bohn Page 8 Resolution 2007-870 · Board rlting of November 7, 2007 or a COpy thereof. to be served on the owner of the affected property. and if the owner is not the permit holder. on the permit holder. personally or by certified mail to the owner or permit holder and posting at the work site. The Bay Constable or Code Enforcement Officer shall be permitted. but not required. to cause the stop- work order. or a copy thereof. to be served on any or all of the following: builder. architect. tenant. contractor. subcontractor. construction superintendent. or their agents. or any other person taking part or assisting in work affected by the stop- work order. personally or be certified mail and posting; provided. however. that failure to serve any person listed above shall not affect the efficacy of the stop- work order. D. Upon issuance of the stop-work order. the owner of the affected property. the permit holder and any other person performing. taking part in or assisting in the work shall immediately cease all work which is the subiect of the stop-work order. E. The issuance of a stop-work order shall not be the exclusive remedy available to address any event described in this section. and the authority to issue a stop-work order shall be in addition to. and not in substitution for or limitation of. the right and authority to pursue any other remedy or impose anv other penalty under any other applicable local or state law. Any such remedy or penalty may be pursued at any time. whether prior to. at the time of, or after the issuance of a stop-work order. g275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. Updated: 11/7/20073:15 PM by Lynda Bohn Page 9 Resolution 2007-870 · Board ~ting of November 7, 2007 (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to 9275-10 shall be subject to a fine of not more than $1,000. (3) Failure to heed a cease and desist order stop work order. Any person conducting operations in direct contradiction to the terms of a stop- work order shall be subject to a fine of not less than $1000 and not more than ~. $4000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1000 nor more than ~ $7500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to comply with a restoration plan. Any person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $ LOOO and not more than $4,000. ~@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees may revoke a permit when a violation of this Chapter or Chapter III is found on the same property. No new permits will be issued to any carter, owner, Updated: 11/7/20073:15 PM by Lynda Bohn Page 10 Resolution 2007-870 · Board ~ing of November 7,2007 occupant, builder, architect, contractor or their agents if they are JLnamed as defendants in an outstanding or unresolved ',,,ctland yielatiea.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law PtrYfCl~~"I~. Elizabeth A. Neville South old Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Albert Krupski Jr., Councilman SECONDER: William P. Edwards, Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Updated: 11/7/20073: 15 PM by Lynda Bohn Page II .. A7~, PI! 135/J;( /r2-L(- 01 The Nature Conservancy on Long Island Center for Conservation P. O. Box 5125 142 Rt. 114 East Hampton, NY 11937 The Nature I'!;~~ Conservancy ~ Pro:ectit'1C nature, Pr~ing life: November 30, 2007 RECEIVi;O V/ /I t::ml4-(~ Southold Town Board 53095 Route 25 P.O. Box 1179 Southold, New York 11971 NOV 3 0 2007 SOUlllurd Tuwn Clerk Re: Chapter 275 - Additional Proposed Amendments Honorable Members of the Town Board: In connection with your review of the Chapter 275 revisions proposed by the Board of Trustees, and in the interest of avoiding piecemeal consideration of changes to the wetlands code, please consider the attached additional amendments drafted by our staff along with an excellent summary of the research supporting the importance of wetland nondisturbance buffers prepared by the Office of Long Island Sound Programs of the State of Connecticut. As stated in our letter of October 22, we applaud the Town for taking the initiative to improve the protection of wetlands and understand that the Trustees have already suggested changes to the existing law. We fully support the Trustees' proposals to increase the penalties for noncompliance with Chapter 275. We also support the Trustees' effort to promote native vegetation by exempting the "use of non-invasive native species of vegetation" from regulation. Howcver, the Town Board should take this opportunity also to consider the L WRP Coordinating Council recommendations that were offered in August. We have taken the liberty of trying to convert a number ofthe L WRP CC recommendations into code language, along with some of our own suggestions based on research data and the effective wetlands management experiences of other towns on Long Island. We fully recognize that developing code is and should be a public process with input from all concerned. Our aim is to help the Town commence that dialogue by undertaking the tedious task ofturning good ideas into specific regulatory "do's" and "don'ts." As the Town's L WRP report points out, Southold is moving increasingly to a year-round residential community from an agricultural and second home community, which means that more pressure to expand existing dwellings, and more impacts on natural resources, are inevitable. To safeguard water quality, fisheries, stonn protection and all the other ecosystem services offered by wetlands, we believe the Town needs additional tools to widen nondisturbance buffers and direct development away from wetlands. -----,.- . The attached amendments are designed to strengthen the Trustees' efforts to protect Southold's wetlands in the following ways: · Increase Trustee jurisdiction to 200 feet. This would give the Town notice of projects proposed within 200 feet of wetlands and allow the Town to ensure that meaningful buffers surround wetlands when vacant land is proposed to be developed or changes are proposed to lots already developed. Research shows that buffers of 100 feet protect a wetland from 8 I % of total suspended solids, 89% of sediment, 89.5% of nitrogen and 82% of phosphorous (according to the CT Office of Long Island Sound Programs). Yet a I OO-foot buffer is impossible to achieve if wetlands jurisdiction itself is only 100 feet, as currently is the case. Jurisdiction of 200 feet would allow wider buffers on lots with depth greater than 100 feet from a wetland, of which there are many in Southold. We estimate, however, that the number of previously unregulated lots that would become regulated under this change is small- less than 750 of the approximately 12,500 lots not currently subject to wetlands jurisdiction. . Increase minimum setbacks, with greater setbacks in critical environmental areas, subject all structures (including decks) to the setback requirements, and distinguish between pervious and impervious surfaces for setback purposes. The minimum nondisturbance butTer should be 50 feet - and 100 feet in critical environmental areas. We strongly believe that it would be a step in the wrong direction to adopt the Trustees' recommended 30-foot minimum. That would make it much more difficult for the Town to move toward the ideallOO-foot standard supported by research. It is far preferable to make a stronger law based on the scientific evidence, and offer relief to individuals who demonstrate no practicable alternative and agree to mitigation. · Revise the administrative permit system to apply where the existing and proposed development meets the minimum setbacks. not just in the limited circumstances described in the current Chapter 275. We propose that administrative permit review be conducted by a qualified member of the Town's staff - an environmental analyst. This procedure works extremely well in Southampton and would bring to Southold the same benefits of ease of administration, greater certainty for landowners, better protection for wetlands, and a reduced number of variance requests in return for expedited processing. This reform would also have the benefit of culling the "easy" applications from the more challenging ones, reserving the latter for the Trustecs, where their time and experience most matter, a public hearing should be held because deviations from setback requirements are being requested, and discretion must be exercised. · Require applicants proposing to deviate from setback requirements to demonstrate no practicable alternative and, as a condition of receiving relief, require mitigation in a manner set forth in the law, ~, by widening an existing nondisturbance buffer, creating one where none exists, relocating structures or septic systems further from the wetlands, or paying into a compensation fund to preserve existing wetlands located elsewhere in the Town. (Giving the Town a strong tool to promote relocation of septic systems would directly address the statement in the Town's L WRP that "[oJfparticular concern along the waterfront is the location of ,. . septic tanks too close to the water's edge. Many older homes have been permitted to expand without being required to relocate their septic systems or leaching fields away from the water's edge." See Section C. Land Use, at page 5). We do not agree with the Trustees' proposed amendment defining "mitigation" narrowly and making it discretionary. . Require permits issued by the Trustees and granting deviations from setbacks to specify the type of mitigation imposed. . Require all paperwork related to applications for Trustee permits (i.e., those going to public hearing, as opposed to administrative permits reviewed by the staff) to be completed 30 days before the public hearing to provide for meaningful public review and comment. . Require administrative permits for certain types of operations currently exempted, such as access to and from sites to conduct environmental testing, or cutting phragmitcs. These activities have the potential to disturb natural resources and are regulated in other towns. Southold should have notice of such activities in order to ensure that they are undertaken with minimal impact. In this regard, we agree with the Trustees that placement of in-ground gas tanks should not be exempt, but the setback should be at least 50 feet, not the 25 feet stated in the Trustees' proposed amendment, and more in a critical environmental area. . Provide for the flagging of wetlands by the Town, as is done in East Hampton, Southampton and Brookhaven. . Separate the Town's regulation of coastal erosion structures and docks from its regulation of development on land near the wetland. Many towns have a separate dock and shore-hardening code and we believe Southold should follow that model. The aim of Chapter 275 should be to achieve the largest practicable buffers around wetlands. That is a diffcrent objective from determining when the shoreline itself can be modified through construction of a dock, bulkhead or revetment. We note that many coastal communities from Maine to Florida are paying special attention to their natural shorelines based on the accumulating evidence that shoreline hardening often does more harm than good. Dealing with these issues in a separate code section is logical, and elevates them to an appropriate level of importance. Hence our proposed revisions to Chapter 275 omit the dock and bulkhead sections and related definitions; we suggest the Trustee amendments addrcssing these topics likewise be dealt with separately. As stated in our previous letter, we believe amendments along the lines of those proposed herewith will bring more precision and uniformity to Chapter 275, which in turn will advance the Town's important work on its own and with the New York Department of State to preserve coastal resources. One issue not dealt with in our amendments, nor in existing Chapter 275, is application of setbacks and other wctland provisions to commercial properties. As currently written, Chapter 275 applies to residential properties only. However, commercial properties should not be exempt from the wetlands code. As it considers implementation of the LWRP CC report and strengthening of the wetland laws, the Town Board should determine how best to ensure that commercial properties are designed with adequate sctbacks and buffers. r . To reiterate, we offer these proposals in the spirit of dialogue among the Town Board, Trustees, L WRP Coordinating Council, and the public about how to protect wetlands effectively. We note that the vast majority of the measures contained in these proposed amendments merely translate provisions of Southold Town's L WRP into enforceable code. Accordingly, these are concepts that the Town has already espoused; it only needs to take the next step and write these concepts into law. We respectfully suggest that the Town Board defer consideration of the Trustee amendments until such time as the enclosed effort to codify the L WRP CC report can be considered alongside the Trustee proposals. Respectfully submitted, Marian Lindberg Conservation Finance & Policy Advisor ( '. .,...>-....~f' Chapter 275; WETLANDS AND SHORELINE [HISTORY: Adopted by the Town Board of the Town of Southold 2-24-2004 by L.L. No. 6-2004. Amendments noted where applicable.] GENERAL REFERENCES Notice of public hearings - See en. 55 Boats, docks and wharves - See eh. 96 Coastal erosion - See eh. 111 Environmental quality review - See eh. 130. Flood drainage prevention - See eh. 148. Shellfish - See eh. 219 Soil removal- See eh. 228 Subdivision of land - See eh. 240. Zoning - See eh. 280 ARTICLE I General Provisions g 275-1. Title. This chapter shall be known and may be cited as the "Wetlands Law of the Town of Southold." S 275.2. Definitions; word usage. A. For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. ACCESSORY STRU CTURE - A building or structure detached from a principal building located on the same lot as and customarily incidental and subordinate to the principal building. ADMINISTRATIVE WETLANDS PERMIT -A written permit. sianed bv the Environmental Analvst. jssued in response to a written reauest to conduct operations as defined and reaulated herein. when such operations would result in no deviations from the setback reauirements and other standards set forth in Section 275-3 and are otherwise.consistent with the provisions of Chapter 275 AESTHETICS - The natural intrinsic appearance of a site or object in the context of surrounding land use, views, viewsheds and vistas important to the community. AGRICULTURE - The production, keeping or maintenance, for sate, lease or personal use, of all plants and animals useful to man, including but not limited to forages and sod crops; grains and seed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats or any mutation of hybrids thereof, including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; fruits of all kinds, including grapes, nuts and berries, vegetables; floral, ornamental and greenhouse products; or lands devoted to a soil conservation or forestry management program. APPLICANT - The party applying for permits or other approval pursuant to Chapter 275. APPLlCA nON - The completed form or forms and all accompanying documents, exhibits, and fees required of an applicant pursuant to Chapter 275. AQUACULTURE - The raising or cultivation of nursery spawn shellfish in artificial containment systems in. on or off bottom. ASMBUIL T PLANS - Plans prepared to scale by a licensed surveyor detailing any and all operations conducted according to a valid permit. BAY - Cutchogue Harbor, Gidds Bay, Great Peconic Bay, Hallocks Bay, Hog Neck Bay, Little Peconic Bay, Long Beach Bay, Orient Harbor and Southold Bay I Deleted, Deleted: intended to provide an expedited review for projects that are deemed Deleted: Trustee's policy regarding protection of wetland resources. BEACH - The zone of unconsolidated earth that extends landward from the mean low water line to the seaward toe of a dune or bluff, or whichever is most seaward. Where no dune or bluff exists landward of a beach, the landward limit of a beach is 100 feet landward from the place where there is a marked change in material or physiographic form from the line of permanent vegetation, whichever is most seaward, Shorelands subject to seasonal or frequent overwash or inundation are considered to be beaches. BLUFF - Any bank or cliff with a precipitous or steeply sloped face adjoining a beach or a body of water. The waterward limit of a bluff is the landward limit of its waterward natural protective feature. Where no beach is present, the waterward limit of a bluff is mean low water, The landward limit is 25 feet landward of the receding edge or, in those cases where there is no discernible line of active erosion, 25 feet landward of the point of inflection on the top of the bluff. The point of inflection is that point along the top of the bluff where the trend of the land slope changes to begin its descent to the shoreline. BLUFF LINE - The landward limit of a bluff that is 25 feet landward of the receding edge or, in those cases where there is no discernible line of active erosion, 25 feet landward of the point of inflection on the top of the bluff. The point of inflection is that point along the top of the bluff where the trend of the land slope changes to begin its descent to the shoreline. BOARD - Unless otherwise indicated, the Board of Trustees of the Town of Southold. BUFFER AREA - A defined area landward of a wetland boundary. coastal erosion hazard line or bluff line measured as a linear distance, perpendicular to said boundary. CLEARING - Cutting down. felling, thinning, logging or removing, killing, destroying, poisoning, ringbarking, uprooting or burning vegetation, severing, topping or lopping branches, limbs, stems or trunks or substantially damaging or injuring in other ways that would cause or contribute to the death or affect the survivability and growth of vegetation. This definition also includes removal of dead and dying vegetation. CLERK - Unless otherwise indicated, the Clerk of the Board of Trustees. COASTAL EROSION HAZARD LINE - The landward boundary of the Coastal Erosion Hazard Area defined by Article 34 of the New York State Environmental Conservation Law. COMMERCIAL AGRICULTURE - Agriculture (See above.) intended to earn an income. CONSERVATION - Protection in natural or existing condition. CONSTRUCTION AND DEMOLITION (C & D) DEBRIS - Includes, but is not limited to, waste cement, concrete, masonry work, brick, tile, sheetrock, plaster, wood shingles and the like and rubble resulting from remodeling, demolition, repair and building of structures. [Added 10-11-2005 by L.L. No. 17-2005J CREEKS - Broadwaters Cove, Brushes Creek, Budd's Pond, Cedar Beach Creek, Corey Creek, Dam Pond, Deep Hole Creek, Down's Creek, East Creek, East Harbor, Goose Creek, Goldsmiths Inlet, Gull Pond, Hallock's Bay, Halls Creek, Hashamomuck Creek, Haywaters Cove, James Creek, Jockey Creek, Little Creek, Long Beach Bay, Mattituck Creek, Mattituck Inlet, Mud Creek, Paradise Point Creek, Pipes Neck Creek, Richmond Creek, Town Creek, West Creek, West Harbor, West Lake, Wickham Creek, Wunnewata Lagoon and Wunnewata Pond. CRITICAL ENVIRONMENTAL AREAS - All sites desiqnated as Critical Natural Resource Areas in the Town's Local Water Revitalization Plan includina but not limited to Hashamomuck Pond and the Arshamomuck wetland complex, the two reqionallv sianificant eco!oaical comolexes within Southold Deleted: BOATNESSEL - Any floating object capable of canying people as a means of transportation in water, including an airplane capable of landing on water as well as any floating structure not otherwise considered to be part of a dock structure as defined herein, with or without means of propulsion, that can be moored independently or can be secured by any means to a piling, dock, bulkhead, groin, or other fixed device located above or below mean high water. This definition excludes floating docks, Deleted: BULKHEAD - A structure or barrier, the intended use for which is to separate and act as a barrier between earthen material and water. This definition excludes gabions and revetments. Deleted: CATWALK - An elevated walkway, usually buUlto gain access to a commercial or residential dock, buill at a fixed height above grade and which is constructed landward of the high-water mark. Deleted: COMMERCIAL DOCK- Any catwalk, fixed or floating dock or extension of such, designed, used and/or intended for use other than as a residential dock, as defined in this chapter. deslanated bv the US Fish and Wildlife Service (North Fork Beach Complex which Includes 22 individual areas of reaional fish or wildlife sianificance and the Orient Point -Islands Comolext and the 19 areas within the Town desianated as Sianificant Coastal Fish and Wildlife Habitats bv thelh_e New York Sate Department of ~ate Mattituck Inlet Wetland Orient Harbor Lana Beach Bav. Plum Gut Great Gull Island Conklina Point Port of Eavot Island Jockev Creek Socii Area. Cedar Beach Point Corey Creek Richmond Creek and Beach Little Creek and Beach. Cutchoaue Harbor Wetlands Robins Island. Downs Creek The Race. Fishers Island Beaches Pine Islands. 85 well as... Hallock's Bay, Dam Pond,.. Orient Creek, West Creek,...Brush's Creek, Cedar Be_achCreek''I'Pe~p_ _ Hole Creek, Goldsmiths Inlet, Halls Creek, Goose Creek, ~Mill Creek and Pipes Gove_ Creek and any _ other locations documented bv the New York Natural Heritaae proaram as habitat for rare and endanaered olants and animals and/or rare ecoloaical communities DECK - A structure and/or platform without a roof that is either freestanding or attached to a building supported by pillars and/or posts constructed of various materials DECKING - Horizontal structural components of a dock, deck, pier or other shoreline structure intended to be walked upon DUNE - A ridge or hill of loose, windblown or artificially placed earth, the principal component of which is sand. EROSION CONTROL - Actions taken or structures installed to prevent the wearing away of the land or loss of soil by the action of water, ice or wind. Erosion control typically relates to stabilization of unvegetated soils resulting from excavation, grading, stockpiling, construction or other activities. HABITAT - The place where a plant or animal species naturally lives and grows; or characteristics of the soil, water, and biologic community (other plants and animals) that make this possible. HABITAT FRAGMENTATION - Destruction or impairment of habitat such that it results in breaks in areas of contiguous habitat. Habitat fragmentation can also cause a greater distance between adjacent (noncontiguous) habitats. These actions prevent the transfer of organisms, natural materials and energy within a habitat. Habitat fragmentation can result from the placement of physical barriers within a contiguous habitat or between adjacent habitats, but can also occur as a result of removal of vegetative cover, changes in sediment characteristics and/or changes in hydrology. HARVESTING - The gathering or collecting of natural resources and organisms. HOMEOWNERS' OR HOMES ASSOCIATION - A community association, including a condominium association, which is organized in a residential development in which individual owners have a shared interest in the responsibility for open space or facilities. [Added 10-11-2005 by L.L. No. 17-2005] HORTJCUL TURE - The raising of plants. (See "agriculture.") IMMEDIATE PROJECT AREA - The minimum area required to allow access to the site by the machinery conducting the operation. IMPERVIOUS SURFACE - Any hard-surfaced, man-made area that does not retain or absorb water, including but not limited to building roofs, paved parking lots and driveways, sidewalks and other Deleted: previously nominated by the Town of Southold and designated by Deleted: s Deleted: as Critical Environmental Areas worthy of protection including: Deleted: Cutchogue Harbor Wetlands, [ Deleted: Downs Creek . Deleted: Richmond Creek and Beach , Deleted: Corey Creek, Deleted: lillie Creek, Deleted: . Deleted: DOCK - Any permanent or seasonal structure, except a building, located or proposed to be located on lands abulling or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water, For the purpose of this chapter, this term shall also include the associated structures necessary to cross .. wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," "floats" or "catwalks." Deleted: DOCK LENGTH - The length of a dock, including all fIXed docks, ramps, floating docks and mooring piles, as measured from the . most landward portion of the structure to the seaward-most portion of the dock or the seaward-most mooring pile, whichever distance is greater. Deleted: FIXED DOCK - An elevated walkway which is constructed at a fixed height above grade and which extends seaward from the high-water mark or a p6,intrll Deleted: FLOATING DOCK-Any structure, raft or floating platform which is designed to float upont~.l!'r21 ' Deleted: FUNCTIONAL BULKHEAD - A bulkhead that is at least 75% physically intact and serving the ~:,-[j-l.. ..... Deleted: FUNCTIONAL .... JETTYfGROIN - A jetty or groin that .. is at least 75% physically intac~ <!tier 41 i Deleted: GABION - A shoreline structure consisting of stone and/or rock enclosed in a mesh cage 9r,.~ [51 ' Deleted: GROIN - A man-made barrier perpendicular to the shoreline used to change the naturallitto ..,_l~J: . paved areas. LANDWARD - In the opposite direction from the water or wetland. MAINTENANCE DREDGING - A dredging project will be considered maintenance dredging if there is documentary evidence that it has been previously dredged. MAN-MADE POND - A constructed inland body of water, including, but not limited to, fined and unlined irrigation ponds and ornamental ponds. MARINA - Any dock, pier or other facility operated for profit, or to which public patronage is invited, providing moorings, dockage or other marine services primarily for power and sailing yachts, launches or other watercraft, other than floating homes, and which may also be capable of removing any and all watercraft moored or docked within the marina from the water for repair and/or storage. MATERIAL - Soil. sand, stone, gravel, clay, bog, peat, mud or any other material, including liquids, organic or inorganic. [Amended 10-11-2005 by L.L. No. 17-2005] MEAN HIGH WATER (MHW) - The average of all the water heights observed over the most previous nineteen-year period. MEAN LOW WATER (MLW) - The average of all the low heights observed over the most previous nineteen-year period. MITIGATION - Actions taken to avoid reduce or comcensate for the effects of environmental damaae. In descendina order of oreference fOnTIS of mitiaation include 1) Avoidinc the imoact altocether by not takina a certain action or carts of an action- 2) Minimizina imoact by limitina the decree or maanitude of the action and its imolementation' 3) Rectifvina the imcact by reoairina rehabilitatina or restorina the affected environment' 4) Reducina or eliminatina the imcact over time by oreservation and maintenance ooerations durina the life of the action: 5) Comcensatina for the imoact throuah cayments into a comoensation fund used to ourchase and oreselVe existina wetlands havina similar functions of equal or areater ecoloaical value to those adversely affected. This form of mitiaation must be based on an understandina of the ecoloaical comolexitv of wetlands their relationshic to the landscaoe. and the fact that wetland functions may not be directly related to acreaae. Comoensatina for the adverse imcacts to wetland resources should only be considered as the last alternative and only if there are no less environmentally damaaina feasible alternatives. . NATIVE VEGET ATIGN - All soecies of olants naturallv occurrina either cresently or historicallY in a oarticular ecosystem within the Town of Southold. "Naturally occurfina"~cies are indiaenous to a feaion Le, were not introduced by humans. NON DISTURBANCE BUFFER - An area, the tvoical dimensions of which are set forth in Section 275-3.0 immediately landward of the wetland boundary"shorenne structure, or other line de_si_gn_ate:d by the Trustees where no operations, maintenance or other activities can take place. 8- nondisturbance buffer clanted with native yeaetation is oreferred. Where land adiacent to a wetland boundary has creviouslv been cleared a veaetated nondisturbance buffer can be created throuah croactive restoration either voluntarilv or throuah mitiaation reauired bv the Trustees oursuant to Deleted: JETTY - A man-made barrier perpendicular to the shoreline used to change the natural littoral drift, prevent erosion, maintain inlet entrances, or protect an area from wave energy. See "groin." Deleted: LOW-PROFILE JETTIES - The definition of a low-profile jetty is site specific, but typically is a structure no higher than 18 inches to 24 inches above existing soil or sediment grade. Deleted: LOW-SILL BULKHEAD- A subtidal structure designed to stabilize the toe of a slope or shore and often associated with boat basins or other navigable waterways. Formatted: Font: (Default) Arial, 10 pt Formatted: Font: (Default) Arial, 10 pt Deleted: MONOPOLIZE - The use for an unreasonable period of tme to the exclusion of others or to unreasonably restrict or obstruct the use of any public bulkhead, dock or landing owned or controlled by the Town of Southold. Deleted: MOORING - Anchoring for greater than 24 hours Fonnatted: Font: (Default) Arial { Deleted: typically 50 feet wide Section 275-3.F in resoonse to an aoolication to conduct ooerations aoverned bv this Chaoter. NONFERTILlZER - Not to include the use of fertilizers of any type. [Added 10-11-2005 by L.L. No. 17-2005] NONTURF BUFFER - Any pervious material allowing for percolation of surface runoff into the soil. Examples include: natural vegetation, wood chips, mulch, gravel, and sand.fertilizersmay.not be used within the nonturf buffer area. OPERATIONS [Amended 10-11-2005 by L.L. No. 17-2005] (1) The removal of material from wetlands or otherwise within Trustee jurisdiction. (2) The deposit or discharge of material on wetlands or otherwise within Trustee jurisdiction. (3) The deposit or discharge of material on any area that results in the transport of said materials into wetlands or otherwise within Trustee jurisdiction. (4) The erection, construction, alteration or enlargement of any building, dock, pier, wharf, bulkhead, jetty, groin or other structure, temporary or permanent, on wetlands, or otherwise within Trustee jurisdiction. (5) ClearinQor otherwise affecting the growth of plants in wetlands or otherwise within Trustee. jurisdiction. ORDINARY AND USUAL MAINTENANCE - Actions which are required to preserve in a condition or state of equivalent quality to that which was approved or required by permit. ORIGINAL STRUCTURE - The earliest known, permitted or otherwise documented structure. PATENT LANDS - All uplands and underwater lands owned in fee title by the Trustees by virtue of the Andros Patent (October 31.1676). PEAK LUNAR TIDES - Those excessively high tides or spring tides caused by lunar gravitational phenomena PERSON - Any individual, any combination of individuals, firm, partnership, association, society, corporation, joint~stock company, company, organization or other legal entity of any kind, including municipal corporations or governmental agencies or subdivisions thereof. PLATFORM - See "deck." POND - An inland body of water. PRACTICABLE ALTERNATIVE - An alternative which is both available to the applicant and capable of fulfillina the overall ouroose of the orooased ooeration. "Available and caoable of fulfillina the overall ouroose" means the alternative is obtainable and feasible in terms of reasonable costs. existina technolaav and best available measures O.e. most uo-to-date technalaav ar the best desians. measures or enaineerina oractices that have been develooed or are commercial Iv available), orooosed use and ouroose af the aoeratian. "Ooeration ouroase" shall be defined aenerallv (e.a. construction of a slnale-familv hornet The reason for evaluatina oracticable alternatives shall be to locate activities so that imoacts to the wetland are avoided to the maximum extent oracticable. The oracticable alternative analvsis may reduce the scale of the ooeration consistent with the ooeration auroose arooosed use and oermit issuance standards set forth in Chaater 275. PREEXISTING NON PERMITTED AND/OR NONCONFORMING STRUCTURES - A structure. use or lot that is not otherwise permitted but which is allowed to continue solely because it was lawfully existing prior to the effective date of the original law or ordinance or prior to any subsequent amendment, as the case may be. Any determination of lawful existence must at least include a review Deleted: Decks may be allowed if they are lever or pitched away from the water. are pervious to precipitation and are constructed of materials other than treated lumber. Any and all runoff generated by such structures must be allowed to percolate into the ground directly below the structure. ( Deleted: Removing Deleted: PIER - A fixed structure to secure vessels, unloading or loading persons or property or providing access to the water. See "wharf" Deleted: PIER LINE - The average seaward projection of one or more existing permitted docks. piers. wharves or floats. The average seaward projection is calculated by adding the length of all docks within the immediate area and dividing by the number of said docks. of prior land use laws and ordinances. PROACTIVE RESTORATION - Restoration undertaken solely for the benefit of the natural environment and not associated with compensatory mitigation or other regulatory requirements. Proactive restoration typically includes planting of beneficial native vegetation (i.e., vegetative enhancement) in a natural setting at a time, place and in a position that are conducive to future survival and growth. RESIDENTIAL - Associated with a single. or multiple~family home, apartment or condominium, excluding marinas and public property. RESIDENTIAL HORTICUL TURE - The raising of plants for ornamental purposes on residential lots. RESOURCE BUFFER AREA - A buffer area with specific quantifiable natural resource value. RIPRAP - A layer, facing or protective mound of rubble or stones randomly placed to prevent erosion, scour, or sloughing of a structure or embankment; also the stone used for this purpose. SETBACK - The minimum distance by which any building, structure or operations must be separated from a wetland boundary, coastal erosion hazard line or bluff line. SHORELINE STRUCTURE - Any intentionally constructed structure on the shore composed of man~ made or natural materials. See "structure." SILT BOOM - A structure deployed within the water column that is designed to prevent passage of suspended sediments and contaminants from spreading from the immediate project area to surrounding waters. Properly installed, silt booms completely surround the project area. SOUND - Long Island Sound, Fishers Island Sound and BlOCk Island Sound SPAWNER SANCTUARY - An area of bottom designated by the Trustees for the purpose of protecting and enhancing shellfish populations for a specific period of time. SPlIT.RAIL FENCE - A linear fence structure composed of posts and rails STRUCTURAL COMPONENTS - Pilings, dead men, rails, whalers and other significant components used to hold together and anchor docks, piers, wharves, jetties, groins and other shoreline structures. STRUCTURE - Any object constructed, installed or placed in, on or under land or water, including but not limited to a building; permanent shed; deck; in~ground and aboveground pool; garage; mobile home; road; public service distribution, transmission or collection system; tank; dock; pier; wharf; groin; jetty; seawall; bulkhead; breakwater; revetment; artificial beach nourishment; boat rack; trellis; arbor; gazebo; walkway; statue; sculpture; stairs; or any addition to or alteration of the same. [Amended 10-11-2005 by L.L. No. 17-2005] SUBTIDAL - Existing at or below mean low water. TIDAL WATERS - All waters bordering on or within the boundaries of the Town of Southold subject to fluctuation in depth from peak lunar, storm or normal tidal action, and including, but not limited to, all brackish and salt waters of streams, ponds. creeks, estuaries, sounds, bays and inlets. TOWN - The Town of South old. TOWN WATERS - All the waters lying over patent lands. (See definition.) TROPICAL HARDWOOD - Any of a number of species of hardwood harvested from areas situated in the tropics (the region on either side of the equator). -- Deleted: RESIDENTIAL DOCK- Any catwalk, fixed dock andlor floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term Rdock" shall include all associated structures such as ramps and mooring piles. Deleted: RETAINING WALL - A bulkhead landward of the wetland boundary. Deleted: REVETMENT - A shoreline hardening structure landward of the wetland boundary typically constructed of rock or stone See "gabion." Deleted: SHEATHING - Vertical structural components of a bulkhead or retaining walt necessary to keep soil and sediment from passing through the structure. TRUSTEES - The Board of Trustees of the Town of Southold. VEGETATED WETLANDS - Any and all wetland types supporting or capable of supporting emergent, submerged or floating-leaved vegetation as described in ~ 275-2, "wetlands (freshwater)" and "wetlands (tidal)." WATER-DEPENDENT USES - An activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water. The uses include, but are not limited to commercial and recreational fishing and boating facilities, finfish and shellfish processing, fish storage and retail and wholesale fish marketing facilities, waterfront dock facilities, shipyards and boat-building facilities, navigation aides, basins and channels, industrial uses dependent upon waterborne transportation or requiring large volumes of cooling or processing water and which cannot reasonably be located or operated at an inland site, and uses which primarily provide general public access to marine or tidal waters. WETLAND BOUNDARY OR BOUNDARIES OF WETLAND - Wetland ecosystems generally possess three essential characteristics: (1) hydrophytic vegetation, (2) hydric soils, and wetland hydrology. The wetland indicator status of all plants can be found in the National List of Plants that Occur in Wetlands (USFWS). The wetland boundary is most easily determined by defining the outer limit of the vegetation specified in the definition of "freshwater, brackish or tidal wetlands," The wetland boundary is to be defined and flagged at the point where existing wetland indicator species no longer have a competitive advantage over upland species. Wetland and upland plants will mix together at this transition zone. For freshwater wetlands that frequently lack standing water (shrub swamps, deciduous swamps, coniferous swamps and wet meadows), vegetation alone may not be adequately diagnostic for identification of a wetland boundary. In these wetland types, field verification of wetland hydrology and/or hydric soils might be required to define the boundary. The methodology used to determine this boundary shall be the same methodology utilized in the New York State Department of Environmental Conservation (NYSDEC) Technical Methods Statement relating to the Freshwater Wetlands Act. WETLANDS (FRESHWATER) [Amended 10-11-2005 by L.L. No. 17-2005] (1) "Freshwater wetlands" as defined in Article 24, Title 1, ~ 24-0107, Subdivisions 1(a) to 1(d) inclusive, of the Environmental Conservation Law of the State of New York; or (2) All lands and waters in the Town includina but not limited to Patent Lands which contain any or all of the following: (a) Lands and submerged lands commonly called "marshes," "swamps," "sloughs," "bogs" and "flats" supporting aquatic or semiaquatic vegetation of the following types: [1] Wetland trees which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others, red maple (Acer rubrum), willows (Salix spp.). black spruce (Picea mariana); swamp white oak (Quercus bicolor), red ash (Fraxinum pennsylvanica), black ash (Fraxinus nigra), silver maple (Acer saccharinum), American elm (Ulmus american a) and larch (Larix laricina); [2] Wetland shrubs which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder (Alnus spp.), buttonbush (Cephalanthus occidentalis), common winterberry (flex verticillata) leatherleaf (Chamaedaphne calyculata), and swamp azalea (Rhododendron viscosum); [3] Emergent vegetation, including, among others, cattails (Typha spp.), pickerelweed (Pontederia cordata), bulrushes (Scirpus spp.), arrow arum (Peltandra virginica), Deleted: WALER - Structural member of a bulkhead used to hold the sheathing behind the pilings. Nonnally there are top and bottom walers. arrowheads (Sagittaria spp.), common reed (Phragmites australis), wild rice (Zizania aquatica), bur-reeds (Sparganium spp.), purple loosestrife (Lythrum salicaria), swamp loosestrife (Decodon verticil1atus) and water plantain (Alisma plantago-aquatica); [4] Rooted, floating~leaved vegetation, including, among others, water-lily (Nymphae a odorata), water shield (Brasenia schreberi) and spatterdock (Nuphar spp.); [5] Free-floating vegetation, including, among others, duckweed (Lemna spp.), big duckweed (Spirodela polyrhiza) and watermeal (Wolffia spp.); [6] Wet-meadow vegetation which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give it a competitive advantage over other open land vegetation, including, among others, sedges (Carex spp.), rushes (Juncus spp.), cattails (Typha spp.), rice cut-grass (Leersia oryzoides), reed canary grass (Phalaris arundinacea), swamp loosestrife (Decodon verticillatus) and spikerush (Eleocharis spp.); Il] Bog mat vegetation, including, among others, sphagnum mosses (Sphagnum spp.), bog rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenis purpurea) and cranberries (Vaccinium macrocarpon and V. oxycoccos); or [8] Submergent vegetation, including, among others, pondweeds (Potamogeton spp.), naiads (Najas spp.), bladderworts (Utricularia spp.), wild celery (Vallisneria americana), ceontail (Ceratophyllum demersum), water milfoils (Myriophyllum spp.), muskgrass (Chart: spp,), stonewort (Nitella spp.), water weeds (Elodea spp.) and water smartweed (Polygonum amphibium). (b) Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet and provided further that such conditions can be expected to persist indefinitely, barring human intervention. (c) Lands and waters substantially enclosed by aquatic or semiaquatic vegetation as set forth in Subsection (2)(a) or be dead vegetation as set forth in Subsection (2)(b), the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation. (d) The waters overlying the areas set forth in Subsection (2)(a) and (b) and the lands underlying Subsection (2)(c). WETLANDS (TIDAL) (1) All lands includina but not limited to Patent Lands generally covered or intermittently covered with, or which border on, tidal waters, or lands lying beneath tidal waters, which at mean low tide are covered by tidal waters to a maximum depth of five feet, including but not limited to banks, bogs, salt marsh, swamps, meadows, flats or other low-lying lands subject to tidal action; (2) All banks, bogs, meadows, flats and tidal marsh includina but not limited to Patent Lands subject to such tides and upon which grows or may grow some or any of the following: smooth cordgrass (Spartina alterniflora), salt hay grass (Spartina patens), black grass (Juncus gerardii), saltworts (Salicornia spp.), sea lavender (Limoneum spp.), marsh elder (Iva frutescens), groundsel (Baccharis halimfolia), marshmallow (Hibiscus spp.) WIDTH OF CREEK - The distance across a creek from mean low water to mean low water, perpendicular to the main channel directly in front of the subject parcel. ! Deleted: WHARF - See "pier." B. When not inconsistent with the context, words in the present tense include the future; words used in the plural number include the singular number; and words used in the singular number include the plural number. The word "shall" is always mandatory and not directory. t 275~3. Findings; purpose; jurisdiction; setbacks: other standards: mitiaation. A. Findings. The Town Board of the Town of Southold finds that rapid growth, the spread of development and increasing demands upon natural resources are encroaching upon or eliminating many of its wetlands.. which, if pre.served and maintained i.n an undisturbed and natural condition, c.onstitute__ important physical, social, aesthetic, recreational and economic assets to existing and future residents of the Town of South old. The Town Board also finds that the oresence of nondisturbance buffers olanted with native veaetation between wetland boundaries and areas of human disturbance have been shown to Drotect sianificantlv the health of wetlands and their water qualitv. l B. Purpose. It is the intention of this chapter to ensure for the citizens of the Town of Southold the protection, preservation, proper maintenance and use of its wetlands, giving due consideration to the reasonable economic and social development of the Town. Iln addition, the Town Board declares that it is the intention of this chapter to regulate the type and placement of fixed and floating piers and docks for the protection, preservation, proper maintenance and use of its waters and wetlands.} Therefore, the Town Board declares that the regulation of the wetlands of the Town of Southold is essential to the health, safety and welfare of the people of the Town of Southold. The wetlands shall be regulated in order to maintain and contribute to the following resource area values and the attributes and functions they possess: protection of public and private water supply; groundwater; flood control; erosion and sedimentation control; storm damage prevention; water pollution control; fisheries; shellfish, including spawner sanctuaries; wildlife habitat; agriculture; aquaculture; aesthetics; public access and recreation. In addition, the following resource area values shall be maintained and protected: prevention of flood damage by limiting of development in flood hazard areas; throuah requirements of setbacks and nondisturbance buffers prevention of damage to structures and natural resources as a result of erosion; improvement of water quality; protection and enhancement of existing vegetation cover in order to maintain water quality and wildlife habitat: protection of wildlife, waterfowl, and plant habitat and the maintenance of existing populations and species diversity; prevention of loss or degradation of critical wildlife and plant habitat; prevention of new stormwater runoff discharge and the improvement of existing stormwater runoff discharges; protection of coastal ecosystems which support the continued viability of harvestable shellfish and finfish habitat; public access to water and land; improvement of groundwater recharge; and the minimization of the adverse impact of new development. reconstruction. expansion or other ocerations on the resource area values listed above. C. Jurisdiction: The following areas includina but not limited to Patent Lands are subject to protection and reaulation under Chapter 275 of the Code of $outhold. Amended 10-11-2005 bv L.L. No. 17- 2005 Notwithstandina anv crior course of conduct or permission aranted it shall be unlawful to conduct operations within the followina areas without first obtainina a written permit therefor issued bv the Trustees or an administrative wetlands permit issued bv the Environmental Analvst as hereinafter provided. and on Iv while such permit remains in effect. D (1) Any freshwater wetland, tidal wetland, beach, bluff, dune, flat, marsh, swamp, wet meadow, bog, or vernal pool; (2) Any creek, estuary, stream, pond, canal, or lake; (3) Land under water; (4) Land subject to tidal action; (5) Land within 200 feet of the areas listed above but not includina land more than 100 feet from a wetland if the land is separated from the wetland bv a paved road surface which borders -the entire street side proDertv line orovided that such road was caved prior to rdatel and orovided further that no direct means of drainaae from such lands to the wetland such as a culvert. exists. [Deleted: and patent lands Deleted: In addition, there has been a significant increase in the applications for and the numbers of fixed and floating piers and docks accessory to upland residential and other uses. Most of these structures and the uses they support are on and in publicly owned land and waters and always have some effect on physical. biological, ecosystem functions and values, development patterns and the aesthetic character of the area. Therefore it is essential to regulate the type and placement of such structures. { Deleted: storation and/or Deleted: Amended 10-11-2005 by l.l. No. 17-2005 j 08'_: 100 [081_:. D. Setbacks. [Amended 10-11-2005 by L.L. No. 17-2005] (1) The following minimum setbacks apply to any and all operations proposed on residential property within the jurisdiction of the Board of Trustees: (a) Wetland boundary (not in Critical Environmental Area). [1] Residence: 1~feet. [2] Imoervious Surface/Driveway: Z9.feet. Pervious Drivewav: 50 feet. [3] Sanitary leaching pool (cesspool): 1~feet. [4] Septic tank: 1Q9. feet. [5) Accessory structure or swimming pool and related structures: Th feet. [6] Landscaping or gardening other than native veaetation that is cart of or enlaraes a Nondisturbance Buffer: 50 feet. [7] Placement of C & 0 material: 100 feet [81 Nondisturbance Buffer: 50 feet. All oermits shall delineate a soecific nondisturance buffer from the wetlands boundary for ooerations fallina within cateaories 1-7 above. While 50 feet is the minimum. except as provided in subsection c) for critical environmental areas or as otherwise orovided bv the Trustees pursuant to Section F.2 hereof the approvina authority shall where practicable impose a minimum nondisturbance buffer of 100 feet for all operations. includina turf fertilizers pesticides herbicides funaicides or similar treatments landscapina or other c1earina or disturbance of natural veaetation. (b) Bluff line. [1) Residence: 1 ~ feet. [2] Impervious Surface/Driveway: 1~feet. Pervious Drivewav: 100 feet. [3] Sanitary leaching pool (cesspool): 1~feet. [4] Accessory structure or swimming pool and related structures: 1 f.9. feet. 151 Septic tank: 100 feet reI Landscapina or aardenina other than native veaetation that is part of or enlaraes a Nondisturbance Buffer: 50 feet r7l Placement of C&D material: 100 feet fal Nondisturbance Buffer: 50 feet. All permits shall delineate a specific nondisturance buffer from the wetlands boundarv for ooerations fall/no within cateaories 1-7 above. While 50 feet is the minimum except as provided in subsection c) for critical environmental areas or as otherwise provided bv the Trustees pursuant to Section F.2 hereof the approvina authority shall where practicable impose a minimum nondisturbance buffer of 100 feet for all ooerations includina turf fertilizers pesticides herbicides funaicides or similar treatments. landscapina or other clearina or disturbance of natural veaetation. c) Critical Environmental Area f1l Residence: 150 feet f2l Imoervious SurfacelDriv€wav: 125 feet. Pervious Drivewav: 100 feet f3l Sanitary leachina pool (cesspool): 150 feet (175 feet if practicable) 141 Septic tank: 150 feet 1175 feet if practicable) f5l Accessorv structure or swimmina pool and related structures: 125 feet. rel Landscapina or aardenina other than native veaetation that is part of or enlaraes a Nondisturbance Buffer: 100 feet f7l Placement of C&D material: 150 feet. fal Nondisturbance Buffer: 100 feet. All oermits shall delineate a specific nondisturance buffer from the wetlands boundary for ooerations fallina within cateoories 1-7 above. While 1 Deleted: 00 I Deleted, 50 { Deleted: 00 .1 Deleted, 75 1 Deleted: S Deleted: 50 ( Deleted: 00 1 Deleted: 00 [ Deleted: 00 1 Deleted: S ( Deleted: 00 - - - - ---I Formatted: Indent: left: 0.25" . 100 feet is the minimum exceot as otherwise provided bv the Trustees pursuant to Section F.2 hereof the aoorovina authority shall where oracticable imoose a minimum nondisturbance buffer of 150 feet in critical environmental areas for all ooerations includina turf fertilizers oesticides herbicides funaicides or similar treatments landscaoina or other c1earina or disturbance of natural veaetation. E. Other Standards a) No addition to an existina functional sinale-familv dwellina shall be allowed within the iurisdiction of this Chaoter unless the addition is on the landward side of the existina structure all new and existina runoff is caotured on site and the addition is less than or equal to 25% of the area (footorint) of the existinQ structure. b) No wetlands permit shall be issued unless the applicant demonstrates and the approvina authority finds that the followina standards have been met: 1) The proposed ooeration is compatible with the purposes and findinQs in Section 275-3 of this chapter. In makina this determination the approvina authority should determine whether the proposed operation is likely to: (i) AdyerselY affect the wetlands of the Town' (ii)Cause dam ace from erosion turbidity or siltation. (iii) Cause saltwater intrusion into the fresh water resources of the Town. (ivl Adverselv affect fish shellfish or other beneficia! marine orcanisms aauatic wildlife and veaetation or the natural habitat thereof. (v) Increase the dancer of flood and storm-tide damaae. (vi) AdverselY affect naviQation on tidal waters or the tidal flow of the tidal waters of the Town. (vii) Chance the course of any channel or the natural movement or flow of any waters. (viii) Weaken or undermine the lateral support of other lands in the vicinity. Ox) Otherwise adversely affect the health safety and ceneral welfare of the people of the Town. (x) Adverselv affect the aesthetic value of the wetland and adiacent areas. 2) The maximum practicable nondisturbance buffer sufficient to protect and preserve the wetland (as required by Subsection 0.a8. b.B and c.8 above) has been established for all activities reQulated by this chapter. 3) All reasonable miticatlon measures have been taken to ensure that wetlands or their benefits will not be adversely affected. (See subsection F.2 below.) 4) The prooosed ooeration will not diminish anv wetland in size or Quality unless the Trustees find that the proposed ooeration is water-deoendent or requires access to the wetland as a central element of its basic function and will result in the minimum possible alteration or impairment of the wetland or if the proposed activitv is not water-dependent that there is no oracticable alternative. rwe may want to exclude this Qualificationl .... Deleted: (2) .... Deleted: The Board of Trustees reserves the right to waive or aller these setbacks where site-specific and/or environmental conditions . justify such action. Formatted: Bullets and Numbering { Formatted: Indent: Left: 0.25" c) Any subdivision aoolication submitted to the Town for review and final conditional aoproval shall be recuired to meet the setbacks and standards set forth herein. F. Oeviations from Setbacks and Other Standards 1) The Board of Trustees reserves the richt to increase the setbacks in Section 275-3.0.where site-specific and/or environmental conditions justify such action 2) If an applicant oroposes to conduct operations on a parcel where the existinc development and/or proposed operation does not conform with the setbacks and other standards in Section 275-3.0. and E. the Trustees may followina review of the application bv the Environmental Analyst and a public hearinQ pursuant to Section 275-8.0. allow less than the minimum setbacks if the followinQ requirements are met: .@l The applicant shall have demonstrated that there are no practicable alternatives which meet the standards set forth in & 275-3.0. and E. Practicable alternatives that meet the standards set forth in &275-3.0. and E are presumed to be available unless the apolicant clearlv demonstrates otherwise .au The apolicant shall submit information describina sites and the proposed work both for the prooosed location and alternative site locations and confiQurations sufficient for a determination bv the Trustees. The level of detail shall be commensurate with the scope of the proiect and the practicability of alternatives. 19. The applicant must demonstrate based on the competent analvsis of a wetlands expert that the prooosed work and location would have a less adverse environmental imoact than anv practicable alternative that meets the standards set forth in & 275-3.0. and E in order for it to be aporoved. Practicable alternatives that meet the standards set forth in &275-3.0. and E are presumed to have less adverse impacts on the wetlands than projects that do not meet such standards unless the applicant clearly demonstrates otherwise. {Q} In the case of anv relief Qranted from the setback requirements and other standards the Trustees shall require mitiQatina measures which. based on sound scientific analysis. are likely to ameliorate the impact on wetlands and wetland benefits of the oermitted operation. The required mitiaation shall be stated in the permit and shall constitute an enforceable condition of the permit. The scope of mitiaation required of an aoplicant should be orooortional to the scope of relief Qranted by Trustees and likely effects on the wetland of the permitted operation. In particular the mitiaation should ensure that the oroposed work and location wlll not impair the caoacity of the wetland and buffer to provide essential wildlife habitat characteristics includina, amonQ others food shelter breedina. cover screenina and miaratorv habitat as well as essential corridors and connective functions and will not impair wetlands and surface water Quality bv incorporatino erOSion sedimentation and runoff controls to minimize non point source pollution. ill The oreferred type of mitioation is that which will brine nonconformina asoects of an apolicant's property into conformity with the setbacks set forth in Section 275-3.0. Such measures that may be required of the applicant as mitiQation include. but are not limited to the followino' a) creatino a nondisturbance buffer where none currently exists widenino an existinQ nondisturbance buffer or plantina natural veQetation in a buffer that is not veQetated. If the minimum nondisturbance buffer set forth in Section 275- 3.0. is not oracticable the proiect should include a nondisturbance buffer with an overall averaae width equivalent to the minimum reauired width set forth in oS 275-3.D. for turf fertilizers. pesticides herbicides funQicides or similar treatments landscapina or other clearinQ or disturbance of natural veoetation and will provide equivalent protection of the wetland. b) movina an existina seotic system to a ooint further from a wetland boundary or if the existina septic system is on the wetland side of a structure movina the system to the landward side of the structure. c) replacina imoervious surfaces with pervious surfaces (ii) If no mitiQation on the orooertv is possible due to the size or confiQuration of the lot the nature of preexistina development or undue hardship to the apolicant mitiaation mav take the form of monetary oavment by the aoolicant in an amount set by the Trustees to a Town wetlands mitiaation fund to. be used to acquire or restore wetlands. ~ 275-4. Exceptions. A. The provisions of this chapter shall not affect or prohibit nor require a permit for the following: (1) The ordinary and usual operations Incidental to the harvesting of fish and shellfish. (2) The ordinary and usual operations relative to conservation of soil, vegetation, fish and wildlife landward of the wetland boundary. (3) The ordinary and usual operations relative to preexisting commercial agriculture and preexistina commercial horticulture landward of the wetland boundary. (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non. invasive native species of veaetation.. Re.aradina and removal of trees outside anv desianated buffer area are not included in this exceotion. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted (by this chaoterLand functionina building,.or structureT (6) Installation of new or replacement windows doors dormers. and sidina only to existina structures, T (7) The ordinary and usual maintenance or repair of a man-made pond as defined in ~ 275.2. This exception does not apply to filling of unlined man.made ponds. [Amended 10.11-2005 by L.L. No. 17-2005] .. - - - { Fonnatted: Bullets and Numbering Deleted: landward of the weiland boundary Deleted: existing Deleted: . dock, pier, wharf, jetty, groin, dike, dam or other water- control device Deleted: Deleted: Environmental testing activities, including test borings, small volume soil sampling, environmental assessment and inventory activities, provided such operations do not have an undue adverse impact on the wetlands and tidal waters of the Town (8) Proactive restoration or enhancement projects conducted in cooperation with the Trustees, including, but not limited to, salt marsh restoration, eelgrass plantings or other vegetative enhancement work. [Amended 10-11-2005 by L.L. No. 17-2005] (9) .NotwithstandinQ the above.listed exceptions activitywi~hin a desianated nondistur~ance buffer_ is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the South old Town Board of Trustees~ nor provide an exemption from the requirements of any other aaency. ARTICLE II Permits S 275M5. Permit procedures. A. Permit required. Anv oerson orooosine to conduct ooerations within 200 feet of a wetland or otherwise within Trustee iurisdiction as defined herein must obtain in advance either an administrative wetlands permit from the Environmental Analyst if the operation is elioible for such a pennit pursuant to Section 275-5.C. or a permit from the Trustees if relief from setbacks or other standards is reauested.. .., B. For all oermit applications the wetland boundarv as determined bv the Environmental Analvst shall be presumptively correct. In the event that there is a dispute with reoard to the location of any wetlands boundary between the location of the boundary as identified bv the Environmental Analyst and the location of the boundary as mapped by the applicant the Trustees shall consider evidence at a public hearinQ from the aoplicant and the Environmental Analvst concernino the location of the boundary. The Trustees shall establish the final location of the boundary as oart of its decision to aoprove. aoprove with modifications or conditions or deny the issuance of the oermit. ~Administrative wetland permit. Apolication and Procedures. (1) The administrative permit review process whereby decisions are issued bv the Town's Environmental Analyst based on fewer application requirements than a permit issued by the Trustees is intended to provide.expedit~d.review Q!,proposed ooerations-on oroperties that meet the minimum setbacks set forth in Section 275-3 and are otherwise..con!iistent with this chaoter. _'- In addition. an administrative permit shall be reauired whenever a oerson proposes to undertake the followina operations' a) Environrflental testina actiylties includina test borinas small volume soil samplina ..- environmental assessment and inventory activities to ensure that the operations and ill transportation to and from the site of the operations do not have an undue adverse imoact on the wetlands of the Town. b) Placement of a prooane tank in the around within 200 feet of a wetland boundary but in no event closer than 50 feet to the wetland boundary so that the Town will have a record of where such tanks are located. c) Cuttina of common read (Phraamites australisl to within 12 inches of the soil surface landward of the wetlands boundary. Obtaininq an administrative wetlands oermitdoes not relieve the appncant of anv requirement to_ obtain permits from other iurisdictions, includina but not limited to New York State Department of Environmental Conservation and United States Army Core of Enaineers.. Deleted: Installation or burial of a residential propane tank within 100 feet of wetlands in an existing, established yard area when more appropriate upland placement is not possible. [Added 10-11-2005 by L.L. No. 17-2005] Deleted: Notwithstanding any prior course of conduct or permission granted, no person shall conduct operations on any area within Trustee jurisdiction (S 275-3C) without first obtaining a written permit therefor issued by the Trustees as hereinafter provided and only while such permit remains in effect. Deleted: for Deleted: for Deleted: jects Deleted: are Deleted: deemed Deleted: e Board's policy regarding protection of wetland resources. If the proposed operations meet with all the current setback requirements as defined by ~ 275M3 and do not pose a threat to the overall function and condition of wetlands or adjacent buffer areas, applicants may request an administrative permit review. Formatted: Bullets and Numbering Formatted: Indent: Left: 0.25" Deleted: This review Deleted: providing aU the application requirements (S 275-6) or obtaining fi. A landowner may reauest an administrative wetlands permit from the Environmental Analyst bv completina an application sufficient to allow the Environmental Analyst to determine that such activity meets the setback and other reauirements of this chapter and will not have a sianificant adverse impact on wetlands or their functions and benefits. The application for an administrative wetlands permit must be upon the form provided bv the Environmental Analyst and must include the followina minimum information: ill A description of the proposed activity and the location(s) of any existina structure accessory structure swimmina pool cesspool septic system driveway nondisturbance buffer and landscaped area. o Location map and survey as orepared by a licensed survevor. .Q2 Any additional information the Environmental Analyst mav reauire to properlv evaluate the nature and location of the proposed operation includina documentation described in Section 275-6 (4) A comoleted Local Waterfront Revitalization Proaram Consistency Assessment Form. it The Environmental Analyst may issue an administrative wetlands oermit only if the existina development on the propertv and the proposed operations conform to the minimum setbacks set forth in Section 275~3.D. and other standards set forth in this chaoter Such administrative wetlands permit shall be issued within 45 days of an accepted reQuest therefor. Nothina herein shall be construed to prohibit the Environmental Analyst from attachina such reasonable conditions to an administrative wetlands permit to ensure that wetlands or their benefits will not be adversely affected. ~ Administrative wetlands permits will be issued bv and bear the name and sianature of the EnvironIT)ental Analyst and will soecifv the: ill Activitv for which the permit is issued. o Address or location where the activity is to be conducted. ill Name and address of the apolicant. L1.l Permit number and date of issuance. @ Period of oermit validity. If not otherwise specified the permit will expire three years from the date of issuance @ The terms and conditions of the approval D. If the Environmental Analyst determines that a oroposed activity even thouah meetina the setbacks set forth in Section 275~3.D. mav have an adverse impact on wetlands or their functions and benefits. the Environmental Analvst may decline to issue an administrative wetlands permit and reouire an application for a Trustee permit pursuant to & 275-6 of this chapter. Any such decision shall be communicated to the party reauestina the administrative wetlands permit within 15 davs thereof and must include a findina of fact that enumerates the basis for the issuance or denial of the permit So Actina on administrative wetlands oermits. All decisions bv the Environmental Analvst shall be filed in the Town Clerk's office. The Environmental Analvst will also provide the Trustees on a monthlv basis with a list of administrative wetlands oermits that were issued or denied and will also provide the Trustees with a description of the proposed proiect location of the proposed proiect and the basis for the issuance/denial of the administrative wetlands permit. A list of administrative wetlands permits that were issued or denied will be available to the public on the Town's website. The listinq will include a brief descriotlon of the oroposed proiect. the location of the proposed proiect and the basis for the issuance/denial of the administrative wetlands permit E. Upon approval of the aoplication, the Environmental Analyst shall cause two sets of olans and soecifications to be endorsed with word "approved." The Environmental Analyst shall also cause an administrative wetlands permit to be issued. Prior to any construction or land disturbance the apolicant shall prominentlv display said administrative wetlands oermit on the premises facina each oublic street. The applicant shall also keeo a copv of the plans and soecifications on site ooen to insoection by the Environmental Analvst or his authorized representative at all reasonable times. G. If the Environmental Analvst issues an administrative wetlands oermit the application orocedures set forth in Section 275-3.0. need not be followed. H. The Environmental Analvst may issue an administrative wetlands permit for a period of UP to two years subiect to extension by the Environmental Analvst upon written apolication for UP to two consecutive one-vear periods, L Denials. If the Environmental Analyst denies the issuance of an administrative wetlands oermit the aoplicant can file an application With the Trustees in accordance with procedures set forth in &275--6. ~ The Environmental Analyst may suspend or revoke an administrative wetlands oermit theretofore issued and approved in the followina instances: ill Where he finds that there has been any false statement or misrepresentations as to a material fact in the apolication plans or specifications on which the administrative wetlands permit was based' m Where he finds that the administrative wetlands permit was issued in error and should not have been issued in accordance with the applicable law' Q2 Where he finds that the work performed under the permit exceeds the scope of the application for which tilE? permit was issued or there is a violation of one of the conditions oUh~e permit. (2) . (a) . (b) . (e) . (d) . (e) . m. (g) . (h) . (I) . Deleted: Deleted: The following operations will be considered for administrative review: Deleted: Construction, installation or removal of a split rail fence, open arbor, trellis or other similar structure, provided that such operation will not have an undue adverse impact on the wetlands and tidal waters of the Town. Concrete footings are not permitted within wetlands. Deleted: Removal of any material or structure, provided that a project limiting fence and a sin fence with hay bales is installed to contain disturbance if deemed necessary and provided that such operations will not have an undue adverse impact on the wetlands and tidal waters of the Town Deleted: Construction of additions to : , the landward side of an existing functional single-family dwelling, where such dwelling generally lies parallel to the wetland boundary and provided that all new and existing runoff is captured on site. Such addition must be less than or equal to 25% of the area (footprint) of the existing structure. Deleted: Remodeling, renovation or reconstruction of a structure, provided that such activity will not have an undue adverse impact on the wetlands and tidal waters of the Town. , Deleted: Construction of accessory , structures for existing single-family dwellings, provided that such activity will not have an undue adverse impact on the wetlands and tidal waters of the Town and the setback is no less than 50 feet. Deleted: Construction or improvement of pervious residential driveways or walkways, provided that such activity will not have an undue adverse impact on the wetlands and tidal waters of the Town. Deleted: The demolition, removal, relocation, repair and/or upgrading of existing fuel tanks, fuel lines, fuel dispensers, cesspools, septic systems, or sanitary wastewall~r... i Deleted: Construction or installation of drainage structures for the retention of runoff, provided that such structures incorporate the maximum feasible setback from wetlands a,ry,d 8] Deleted: Cutting of common reed (Phragmites australis) to within 12 inches of the soil surface landward of the wetland boundary. This does not include mowing to ground level. OJ . (k) (3) t 275-6. Application for Trustee Permit. A. Contents of application for Trl!.stee oermit A Trustee permit may be issued upon the written, verified application of the person proposing to perform operations on wetlands. Three copies ofthe complete application, including all written descriptions, pictures and surveys, shall be submitted to the Clerk. Such application shall contain the following information: [Amended 10-11-2005 by L.L. No. 17-2005] (1) The name and address of the applicant and the source of the applicant's right to perform such operations (e.g.. whether applicant is the owner, lessee, licensee, contractor, etc.). In all cases where the applicant is not the owner of the premises where such operations are proposed to be conducted, the notarized consent of the owner, duly acknowledged, must be attached to said application. (2) A schedule for the proposed activities with a completion date. (3) The purpose of the proposed operations. (4) The amount of material proposed to be removed or deposited, and/or the type, size and location of any proposed structure. (5) A description of the area from which the removal or in which the deposit of material is proposed, or in which structures are to be erected. The description shall be appropriately referenced to a permanent reference point or monument. (6) The depth to which the removal or the deposit of material is proposed throughout the area of operations, and the proposed angle of repose of all slopes. (7) The manner in which the material will be removed or deposited, or structures erected. (8) Such application shall be accompanied by a survey and topographical map, created no more than one year prior to the date of application, with contours at two~foot intervals, showing all wetlands within a two~hundred~foot radius of the area from which the removal or in which the deposit of materials is proposed, or in which structures are to be erected, certified by a registered land surveyor or registered professional engineer, licensed by the State of New York. Such survey and topographical map shall show the soundings of the area in which operations are proposed to be conducted. The horizontal control of said survey shall be based on an approved local coordinate system. The vertical control for elevations shall be based on the United States Coast and Geodetic Survey datum. [Amended 10-11-2005 by L.L. No. 17- 2005] (9) A statement of the effect, if any, on the wetlands and tidal waters of the Town that may result by reason of such proposed operations. (10) A statement describing any known prior operations conducted on the premises in question and whether any prior licenses or permits have been issued to erect structures or to dredge or deposit fill on said premises and whether any such permits or licenses were ever revoked or suspended by a governmental agency. Deleted: The construction of a permitted bulkhead, which is to replace an existing functional bulkhead, subject to the following: 11 11] :~ Deleted: Minor changes to existing, valid Trustee permits. The Trustees reserve the right to determine whether the changes qualify for administrative review. [Added 10-11- 2005 by L.L. No. 17-2005] Deleted: Any such activities shall require the addition of a nonturf buffer area not to exceed 20 feet wide as defined in ~ 275~2. . (11) Documentary proof of permits that have been applied for, are pending, and have been granted, including but not limited to NYSDEC, Suffolk County Health Department, USACOE (12) A description of how the proposed activities will be mitigated, including erosion control, replanting and restoration, designated points of access. All proposed operations will be clearly defined on a survey and described in a project narrative. The Trustees reserve the right to require specific replanting and restoration methods. Any replanting and restoration guidelines shall be in keeping with guidelines set by the Town of Southold. (13) Current photos of the subject area showing the proposed area of operations from at least two opposite directions. Each photo should be labeled with the date, time and direction. The location of the photos shall be noted on the survey, project plan or provided on a separate sketch map. (14) Drainage upgrade. At the discretion of the Board, nonadministrative applications may require submittal of a drainage upgrade plan. This plan must indicate how all existing and proposed on- site drainage from a two-inch rainfall is retained within the subject parcel landward of the wetland boundary. Retention can include but is not limited to infiltration or impoundment. All drainage plans shalt show the calculations used to develop the plan. At the discretion of the Board said plans may require certification from a licensed engineer (15) All permit applicants shall submit to the Board of Trustees an affidavit signed by the owner of the project property which indemnifies and saves harmless the Town of Southold from any claims arising out of or connected with operations under the permit and from all acts, omissions, commissions or negligence on the part of the applicant, his agents or employees, in such form as shall be approved by the Town Attorney. (16) An ethical disclosure statement as provided by the Town of Southold relating to applications for permits and other governmental requests. (17) A statement indicating that submission of false information will resu It in rejection of the application and may subject the applicant to criminal sanctions. (18) A completed Local Waterfront Revitalization Program Consistency Assessment Form. [Added 10-11-2005 by L.L. No. 17-2005] lB. ~ 275-7. Fees. A. Every application for a Trustee permit filed. ,<<ith the Clerk shall be accompanied by a filing fei:!of $250, which includes the first site visit, no portion of which shall be refundable. The fee for an administrative--- wetlands permit shall be $100_ For any operation undertaken withouta permit,. the aoplication fee will be trioled in addition to the penalties provided below_lfa.preapplication site visit. isr~qu.ested,the'fee' shall be $50. [Amended 10-11-2005 by L.L. No. 17-2005] B. In addition to the filing fee. the Trustees, upon the adoption of a resolution authorizing the issuance of a permit, shall determine the amount of the inspection fees to be paid by the applicant to the Clerk upon the issuance of a permit. Inspection fee costs will be based on $50 per site visit. C. Pursuant to New York State law, all costs incurred by the Town for SEQRA review shall be paid by the applicant. D. Consultant fee. The Board shall re~uest the Environmental Analyst to review all aoplications for Trustee permits and to make a written report to the Board at least 30 days before the public hearina on the apolication. Atits discretion, depending on the scale and potential impact of propo.sect operations, is authorized to require the posting of a consultant fee by an applicant. This fee sha'li he' Deleted: WaNer of certain requirements. The Trustees, upon request of the applicant for a permit, may waive, in whole or in part, the provisions of Article II, S 275-6A(8), (11), (14) ors 275-11A(2) where it finds that the nature of the proposed operations is such that the requirements of such provisions are not necessary for a proper consideration of a permit application. The resolution providing for the waiver shall dearly indicate why the waiver was granted. Deleted: permit Deleted: 50 Deleted: structures that have been previously built without Deleted: doubled. ( Deleted: , at . used to hire an independent, expert consultant to investigate the site for the proposed project and to examine the plans or other information submitted by the applicant to supolement the work of the Environmental Analvst and assist the Board in evaluating potential adverse impacts upon a resource area by the proposed project. The Board, in its discretion, will determine whether the complexity of the activity, the workload of the Environmental Analvst the difficulty in determining the threat to the resource areas or the size of the request or project involves and requires more information and analysis than can reasonably be supplied to the Board without independent technical professional assistance. (1) The Board may require the payment of the consultant fee at any time in the deliberations prior to a final decision. (2) The consultant fee may be required for expert opinion regarding, but not limited to, wetland resource area surveys and delineations, analysis of resource area values, wetland resource area reports, hydrological and drainage analysis, wildlife habitat analysis. shellfish surveys, and environmental land use law, or any of the following: (a) Placement, removal or grading of at least 50 cubic yards of material; (b) Five hundred square feet or greater alteration of a resource area; (c) Shoreline or bank alteration to a coastal or inland waterway; (d) Five hundred square feet or greater alteration to land in a naturally vegetated condition that constitutes a resource buffer area. (e) Discharge of any pollutants into or contributing to surface or groundwater of the resource area; (f) Construction of any stormwater control facility. or water control structure. E. . Deleted: Dock and float fee. Every application for a new dock or float shall include a fee equal to $3 per foot of linear length for residential and commercial docks. Commercial docks are any structures that are rented, leased or othelW'ise used to generate income, including, but not limited to, those structures located on properties zoned M1 and M2. [Added 10-11- 2005 by L.L. No. 17-2005] Deleted: Board Deleted: the ~ 275-8. Processing of application~. A. Presubmission conference. Applicants are encouraged to schedule a voluntary presubmission site visit to discuss the proposed operations with the Environmental Analvst or Board as aooropriate. Discussions in the field are purely advisory and nonbinding. but this meeting is intended to facilitate communication between the applicant and the Town There will be a fee of $50 for this confere_n~~~_ [Amended 10-11-2005 by L.L. No. 17-2005] B. Investigation and coordination. Upon receipt of gnyppplication for an administrative wetlands oermit or Trustee cermit, the Clerk shall forward one copy thereof to the Conservation Advisory Council, - when appropriate, one copy to the Planning Department, one copy to the Zoning Board, and one copy to be filed with the office of the Trustees. The Conservation Advisory Council shall review said application and the effect, if any, on the wetlands and tidal waters of the Town that may result from the proposed operations and shall, within 20 days of receipt of the same, forward its written report of findings and recommendations with respect to such application to the Trustees. If the Conservation Advisory Council shall recommend that such application be disapproved. the reasons for such disapproval shall be set forth in such report. If no response is received within 20 days, the application is not subject to further Conservation Advisory Council review. C. All paperwork relative to an application reauired to be the subiect of a pubHc hearina pursuant to this chaoter shall be submitted at least lbi.d.Y...days befo~e the _~cheduled hearing. The. subrTliUal of { Deleted: seven additional paperwork after this time may result in delays in processing of the application. Reauired oaoerwork includes the written reoorts if anv of the Environmental Analvst Conservation Advisorv Council LWRP Coordinatina Council Plannina Board or Zenina Board. I D. Hearing. The Trustees shall hold a public hearing on any aODlicatien seekina relief from the setbacks or other standards set forth in Sectio.n _ Notice sha!l. be provided. pursuant to Chapter 55, Noti.ce__ __ I Deleted: such application . . of Public Hearings, of the Town Code and shall soacifv the mitiaation measures that the Trustees are orooosina to reauire. E. Action. After the public hearing on such applications, the Trustees shall either adopt a resolution directing the issuance of a permit and soecifvina the reauired mitiaation or adopt a resolution denying the application. A resolution directing the issuance of a permit may be adopted only jf the Trustees find that the proposed operations will conform to the standards set forth in S ~hereof. If the Trustees adopt a resolution denying an application for a permit, the reasons for such denial shall be set forth in the resolution. I F Modifications and amendments. Any and all modifications and amendments of existing permits.>. exceot those fallina within the authority of the Environmental Analvst shall be reviewed by the Trustees in accordance with the standards set forth in this chapter, and may be subject to public hearing. G. Tabled applications. If an applicant tables an application for any reason, it will be considered withdrawn if it does not go to public hearing within four months of the time it was tabled. After such time the applicant will have to reapply for a permit. H. ~ 275-9. Conditions, inspection fees, performance guarantee upon issuance of permit. The Trustees may, upon the adoption of a resolution directing the issuance of a Trustee permit: A. Impose such conditions on the manner and extent of the proposed operations as they deem appropriate, consistent with the purpose of this chapter. B. Fix the time by which operations must be commenced and within which they must be completed. C. Require the payment of inspection fees D. Under certain circumstances the Board may require the submittal of as-built plans, upon completion of operations, stamped by a licensed surveyor and lor engineer. E. Performance guarantee. The Trustees may require a performance guarantee to ensure the proposed operations are conducted in compliance with a permit. If the work is not conducted as described in the permit or such work is causing harm to the protected resource, notice will be given in writing. The Board may require, as a permit condition, that performance and observance of other conditions be secured by one or both of the following methods: (1) Bond; (2) Deposit of money; (3) Negotiable securities; or (4) Other undertaking of financial responsibility. F. Liability insurance. The applicant for a permit shall, before the issuance of said permit by the Clerk, file with the Clerk a certificate that the contractor chosen to perform the work under the permit has liability insurance policies insuring against any liability which may arise in the performance ofthe operations pursuant to such permit, which said policies shall name the Town as an additional insured. ~ 275-10. Contents of permit. -1 Deleted: 275-11 Deleted: Administrative permits. An administrative permit is deemed to have no adverse impact on the wetlands and tidal waters of the Town, and a public hearing and notice are not required prior to issuance of a permit. The final decision will be made upon resolution. . . . Each Trustee permit issued hereunder by the Clerk pursuant to a resolution of the Trustees shall be valid for a period of two years from the date of approval. Said permit may be renewed for two consecutive one. year periods at the discretion and review of the Board. Each permit shall state the following: A. The name of the permittee. B. The date of issuance and expiration of the permit. C. A schedule of when operations will be conducted. D. The conditions imposed by the Trustees on the issuance of the permit inc!udino a clear and detailed statement of the required mitiaation if deviations are eren'ad from the minimum setbacks or other standards. E. The specific location of the areas to be affected by the operations of the permittee. F. A statement that "The validity of this permit is or may be subject to the approval of other governmental or municipal authorities. The Town accepts no responsibility in applying for or obtaining such approval. In the event that such approval is necessary, the holder of this permit shall not commence operations hereunder until such approval has been obtained in writing. The failure to obtain such other approval when required shall subject this permit to immediate revocation by the Clerk upon receipt by the Clerk of written notice from such other governmental or municipal authorities of its refusal or disapproval." Acceptance of the permit is acceptance of this condition. G. A statement that "The permittee does, by the acceptance of this permit, assume all responsibility for operations undertaken pursuant to this permit, and shall take all precautions for the prevention of injuries to persons and property resulting from such operations. By such acceptance, the permittee also agrees to indemnify and save harmless the Town and its officers, agents and employees from any and all claims arising from operations under this permit and any and all acts or omissions of the applicant, his agents and employees." Acceptance of the permit IS acceptance of this condition. H. A statement that "The permittee and the owner and occupants of the premises upon which the operations authorized by this permit are being conducted do, by the acceptance ofthis permit, give consent to the Town and its officers, employees and agents to enter upon the premises where such operations are being conducted to make such inspections to determine whether said operations are being conducted in conformity with the permit and. if necessary, to conduct said operations according to the performance guarantee (3 275-9E)." I. A statement that "The permittee is required to notify the Trustees in writing one week prior to initiation of any and all operations." J. A statement that "The permittee is required to notify the Trustees in writing upon completion of operations such that the site can be inspected for issuance of a certificate of compliance (3 275-13)." K. A statement that "The permittee is required to provide evidence that a copy of this Trustee permit has been recorded with the Suffolk County Department of Real Properties Office as a notice covenant and deed restriction to the deed of the subject parcel. Such evidence shall be provided within 90 calendar . days 01 issuance olthis permit" [Added 10-11-2005 by L.L. No. 17-2005] rremainder of law deleted for review PLlroosesl ...riolI , , . Page 3: [1] Deleted mlindberg 11/30/200711:28:00 AM FIXED DOCK - An elevated walkway which is constructed at a fixed height above grade and which extends seaward from the high-water mark or a point landward. Page 3: [2] Deleted mlindberg 11/30/200711:28:00 AM FLOATING DOCK - Any structure, raft or floating platform which is designed to float upon the surface of a water body and is secured in place by poles, pilings, anchors, or any other type of mooring system that provides access to the water. A floating dock includes the float itself and any pilings or mooring system designed to keep the dock at a fixed point. Page 3: [3] Deleted mlindberg 11/30/2007 11:28:00 AM FUNCTIONAL BULKHEAD - A bulkhead that is at least 75% physically intact and serving the purposes for which it was designed. 11/30/200711:28:00 AM mlindberg Page 3: [4] Deleted FUNCTIONAL JETTY/GROIN - A jetty or groin that is at least 75% physically intact and serving the purposes for which it was designed. Page 3: [5] Deleted mlindberg 11/30/200711:28:00 AM GAB ION - A shoreline structure consisting of stone and/or rock enclosed in a mesh cage or similar, designed to stabilize soil or sediments. Page 3: [6] Deleted mlindberg 11/30/2007 11:28:00 AM GROIN - A man-made barrier perpendicular to the shoreline used to change the natural littoral drift, prevent erosion, maintain inlet entrances, or protect an area from wave energy. See "jetty." Page 16: [7] Deleted mlindberg 11/14/2007 12:06:00 PM The demolition, removal, relocation, repair and/or upgrading of existing fuel tanks, fuel lines, fuel dispensers, cesspools, septic systems, or sanitary wastewater activities, including necessary site work, and provided that such activity will not have an undue adverse impact on the wetlands and tidal waters of the Town. Page 16: [8] Deleted mlindberg 11/14/200712:06:00 PM Construction or installation of drainage structures for the retention of runoff, provided that such structures incorporate the maximum feasible setback from wetlands and provided that such activity will not have an undue adverse impact on the wetlands and tidal waters of the Town. Page 17: [9] Deleted mlindberg 11/30/200710:12:00 AM I The construction of a permitted bulkhead, which is to replace an existing functional bulkhead, subject to the following: [1] That the new bulkhead is constructed substantially similar to the design and measurement of the existing bulkhead; and [2] The new bulkhead is in the same location as the existing bulkhead [3] Any such activities shall require the addition of a nonturf buffer area not to exceed 20 feet wide as defined in S 275-2. [Added 10-11-2005 by L.L. No. 17-2005] Page 21: [10] Deleted mlindberg 11/15/20071:16:00 PM OFFICE OF LONG ISLAND SOUND PROGRAMS TIDAL WETLANDS BUFFERS GUIDANCE DOCUMENT INTRODUCTION This document was developed to provide local land use agencies with background information regarding the value of vegetated buffers as a tool in protecting tidal wetlands from adverse impacts associated with adjacent upland development. It presents a brief overview of tidal wetlands followed by a discussion of what vegetated buffers are, how they function, what characteristics make the ideal buffer and how buffers can be used to protect tidal wetlands. Key concepts in the development of buffer regulations are presented and model regulation language is provided. This document concentrates on the value and establishment of buffers to protect tidal wetlands. However, it should be noted that buffers can be an effective tool in protecting other sensitive resource areas. TIDAL WETLANDS WHAT ARE TIDAL WETLANDS? Tidal wetlands are those areas which border on or lie beneath tidal waters, such as, but not limited to banks, bogs, salt marshes, swamps, meadows, flats, or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters, and whose surface is at or below an elevation of one foot above local extreme high water; and upon which may grow or be capable of growing some, but not necessarily all, of [a list of specific plant species - see Connecticut General Statutes (CGS) section 22a-29(2) for complete list of species]" [CGS section 22a-29]. In general, tidal wetlands form in "low energy" environments protected from direct wave action. They are usually flooded by tidal waters twice a day and support a diverse ecosystem of vegetation and wildlife. WHY ARE THEY VALUABLE? Tidal Wetlands Buffers Guidance Document Page 2 Tidal wetlands are areas of high nutrient and biological productivity that provide detrital products forming the base of the food web in Long Island Sound. Next to tropical rainforests, tidal wetlands are the most biologically productive resource in the world. Tidal wetlands provide habitat, nesting, feeding, and refuge areas for shorebirds; serve as a nursery ground for larval and juvenile forms of many of the organisms of Long Island Sound and of many estuarine-dependent oceanic species; and provide significant habitat for shellfish. Most of the commercial fisheries stock that we eat start their lives in tidal wetlands. These resource areas also improve water quality by trapping sediments, reducing turbidity, restricting the passage of toxics and heavy metals, decreasing biological oxygen demand (BOD), trapping nutrients, and buffering storm and wave energy. Tidal wetland vegetation stabilizes shorelines and buffers erosion. Tidal wetlands provide recreational opportunities for fishing, wildlife observation and hunting; are important to commercial and recreational shell- and finfisheries; and are areas of scientific and educational value. Tidal wetlands are a major source of coastal open space and offer exceptional scenic views. WHY DO TIDAL WETLANDS NEED PROTECTION? Due in part to their transitional location between upland areas and coastal waters, tidal wetlands are very specialized habitats that are sensitive to disturbance. Human actions, both direct and indirect, can adversely impact tidal wetlands and their functions. Direct actions include activities such as filling, dredging and trampling; indirect actions include upland uses that result in sedimentation, increased stormwater discharge, proximate septic system failures or the installation of culverts in a manner that decreases salt water flushing. In these cases, the delicate balance between soil surface, water level, water quality and/or salinity is disturbed This results in a stressed habitat which is usually less productive than a healthy marsh and frequently supports undesirable species, most typically Common Reed (Phragmites australis). Historically, many of these activities have occurred in Connecticut resulting in the loss or degradation of the majority of tidal wetlands. As a result it is even more important to protect the wetlands that remain. WHAT ARE MUNICIPAL RESPONSIBILITIES TOWARD TIDAL WETLANDS? Although activities within tidal wetlands are regulated by the DEP, municipalities are responsible for ensuring that adjacent upland development does not harm these resource areas. The Connecticut Coastal Management Act contains policies and standards regarding tidal wetlands that must be applied during municipal coastal site plan review process. Generally speaking, land use boards and commissions in coastal municipalities must ensure that development will not result in degradation of tidal wetlands, and that tidal wetlands are preserved, protected and, to the extent practicable, restored. VEGETATED BUFFERS 2 Tidal Wetlands Buffers Guidance Document Page 3 WHAT IS A VEGETATED BUFFER? A vegetated buffer is an undisturbed area or strip of land covered with permanent stable vegetation adjacent to a resource area. They can be either in a natural state or artificially planted. If artificially planted, low-maintenance, preferably native, non- invasive vegetation should be used. Vegetated buffers are frequently used to protect inland wetlands and watercourses. Depending upon their purpose and site-specific conditions, effective vegetated buffers can range in width from a few yards to several hundred feet. WHY ARE VEGETATED BUFFERS VALUABLE FOR TIDAL WETLANDS PROTECTION? Properly designed buffers protect resource areas from direct and indirect adverse impacts associated with adjacent upland development. They protect tidal wetlands from adverse changes to water quality and temperature; control erosion and trap sediment; protect and provide wildlife habitat; reduce the effects of flooding on adjacent upland property; reduce the potential for direct human and/or pet disturbance of sensitive wetland areas; maintain aesthetic diversity and enhance recreational value of coastal areas. An effective and established buffer provides a mosaic of inter-dependent functions. Establishing a vegetated buffer area can decrease lawn maintenance requirements and associated costs and impacts by reducing the area of manicured landscape. This results in lowered costs for lawn care, including mowing and fertilizer and pesticide application, while improving tidal wetland protection. How DO WE KNOW THAT VEGETATED BUFFERS ARE EFFECTIVE? There have been numerous research projects to assess the value of buffers as wetland protection measures. The scientific literature to date has examined several different types of buffers (e.g., forested, grassy, shrubby) of varying widths and evaluated their effectiveness at protecting water quality in adjacent wetlands and watercourses from specific impacts associates with identified upland uses. As with most scientific research, each study has generally had a narrow focus and has examined specialized functions such as the retention of nitrogen, phosphorous, sediment or pesticides and herbicides. The majority of this research has been done with respect to freshwater wetlands and watercourses with little research specific to tidal wetlands. Despite the research done to date, there are still too many unknowns to determine the optimum buffer width for every instance. 3 , Tidal Wetlands Buffers Guidance Document Page 4 How DO VEGETATED BUFFERS WORK? In general, retaining an undisturbed buffer area adjacent to a tidal wetland will promote stormwater infiltration, pollutant retention, and habitat protection. It will also discourage direct human disturbance and increase visual diversity. Buffers provide these benefits in very specific ways, depending upon the intent of the buffer. How DO VEGETATED BUFFERS PROTECT WA TER QUALlTV? When used for water quality protection, the primary role of a vegetated buffer is as a stormwater management measure. Since the land within a buffer area is not developed or significantly disturbed, it typically does not generate pollution. Such an undisturbed area acts as a filter to intercept and absorb nutrients, sediment and other pollutants carried in stormwater runoff that flows across or through the buffer. A vegetated buffer also slows the flow of runoff which both reduces erosion of the buffer area and allows silt and other suspended solids to settle out within the buffer before reaching adjacent wetlands. Additionally, any contaminants attached to the trapped sediment are retained in the buffer area and do not reach the wetland. Slowing the speed of runoff also allows the water to infiltrate the soil and ultimately discharge to the wetland as groundwater rather than as overland flow thereby reducing the volume of surface runoff. This is especially significant as freshwater, even if of drinkable quality, when introduced into a saline habitat, such as most tidal wetlands in Connecticut, can have significant adverse impacts by diluting the natural salt content of the receiving area. Discharge as groundwater reduces potential adverse impacts as it is usually below the root zone of the wetland area and, thus, has less effect on the resource. Buffer areas also trap bacteria, pathogens and pesticides which then decompose or break down in place, aiding in the preservation of water quality. How DO VEGETA TED BUFFERS PROTECT AND PROVIDE WILDLIFE HABlTA T? Vegetated buffers provide wildlife with needed areas for feeding, resting, nesting and raising young, as well as corridors through which wildlife can safely transverse otherwise developed areas. Vegetated buffers not only provide wildlife habitat directly within the buffer area but also protect adjacent wildlife habitat in the abutting resource area Some wildlife species use the buffer area itself, while others use the tidal wetlands protected by vegetated buffers and some species will use both areas. HOWDO VEGETATED BUFFERS PROVIDE FLOOD CONTROL? Naturally vegetated buffer areas adjacent to tidal wetlands serve a number of functions for flood control. On level areas abutting tidal wetlands, vegetated buffers can serve as areas where flood waters can spread out. Root systems of shrubby and forested vegetation within the buffer areas generate pores in the soil, allowing flood waters to infiltrate the soil within the buffer. Significantly more water can infiltrate soil that supports shrubby and forested vegetation than land used for lawn, buildings, patios and terraces, driveways or other less permeable surfaces. Buffers 4 . Tidal Wetlands Buffers Guidance Document Page 5 also provide flood control by moving development back from the naturally flood- prone resource area. How DO VEGETA TED BUFFERS PROTECT WETLANDS FROM HUMAN DISTURBANCE? When used to protect tidal wetlands from disturbance by humans and their pets, a vegetated buffer primarily provides a physical barrier between areas of human occupation and tidal wetlands. Human disturbance often takes the form of trampling, disposal of grass clippings and other lawn waste, intermittent filling, and other improper disposal actions. Pets can interrupt the life routines of wildlife of the wetlands and buffer area by both predation and general disturbance. The denser the vegetation in the buffer area, the less it is apt to be penetrated by humans and their pets. How DO VEGETA TED BUFFERS MAINTAIN AESTHETIC DIVERSITY AND RECREA TlONAL VALUE OF COASTAL AREAS? A healthy tidal wetland is usually fairly flat and the most obvious vegetation is comprised of grasses. Abutting vegetated buffers can offer a visually interesting contrast in terms of vegetation type and texture. This contrast increases aesthetic diversity of the coastal area and, because they are both interesting to look at and provide habitat for birds and other wildlife, they increase the recreational value of the coastal area by providing improved opportunities for birding, painting/drawing, and other passive recreational pastimes. WHAT DETERMINES THE OVERALL EFFECTIVENESS OF A VEGETATED BUFFER AREA FOR PROTECTING TIDAL WETLANDS? & The qeneral topoqraphy of the buffer area. Flat or gently sloping buffers are more effective because they are more successful at slowing the rate at which stormwater flows across them. A slower flow rate enhances the infiltration and filtering capability of the buffer The ability to provide flat or gently sloping buffers is clearly related to individual site characteristics. & The type of stormwater flow. Sheet flow (slow unrestricted flow across the ground) along the length of the buffer allows the buffer area to more effectively trap sediments, attenuate pathogens and pollutants, and encourage infiltration. Concentrated flow (e.g., flows directed through swales, pipes or other conveyances or flows that are strong enough to create gullies or other eroded channels) reduce or essentially eliminate the effectiveness of a buffer for stormwater management. & The permeability of the soils and the depth to the water table. Generally, higher soil permeability (the rate that water can flow through soils) and greater depth to the water table will increase the rate of infiltration and attenuation within the 5 . Tidal Wetlands I3urtl:rs Guidance Document Page 6 buffer area. It should be recognized that, except for areas where the land slopes sharply up from the wetland boundary, generally the depth to groundwater adjacent to tidal wetlands is quite shallow. & Whether the current veqetation is native or non-native. its density and its character (e.g., forested, shrubby, grassland, etc.). Dense, minimally groomed, native vegetation is inherently suited to the local climate and generally provides an effective buffer that requires less maintenance than non-native or heavily groomed vegetation. & Whether the land use above the buffer poses a hiqh. medium or low risk for pollution or other disturbance. The higher the risk posed by the upland use, the greater the need for an effective buffer. Increasing the width of a required buffer and/or increasing the density of native plantings can aid in offsetting the potential impacts from a high-risk upland use. & What tvpes of activities are permitted within the buffer. The fewer activities allowed, the more valuable a vegetated buffer will be. Land clearing, grading or other disturbances and establishing or maintaining impervious surfaces with vegetated buffer diminish their overall effectiveness for a variety of purposes. However, in some instances, minimal access to the tidal wetlands edge might be appropriate as a reasonable exercise of riparian or littoral rights in order to obtain access to a dock or boating facility. For large projects, passive recreation amenities, such as hiking trails, benches and/or picnic tables may be appropriate to provide a necessary water-dependent use provided they are properly designed to minimize disruption of the buffer as a resource protection measure. How WIDE IS WIDE ENOUGH? The scientific literature to date has examined several different types of buffers (e.g., forested, grassy, shrubby) and evaluated their effectiveness at protecting water quality in adjacent wetlands and watercourses. As is typical with research projects, most projects have been narrowly focused and generally each study has examined isolated impacts or values associated with specific upland uses. For example, a single research paper might examine the effectiveness of a 60 meter (197 foot) wide buffer in removing total suspended sediments (TSS) in stormwater runoff. Or a study might investigate the use of a 30 meter wide buffer by avian species for general habitat. The majority of this research has been done with respect to freshwater wetlands and watercourses. However, in the absence of tidal wetland specific investigations, it may be reasonable to assume that the data on freshwater systems is transferable to tidal wetlands. The data available does not clearly indicate an optimum minimum buffer width for multi- purpose buffers. However, The Scientific Basis for Protectinq Riparian & Wetland Buffer Zones (REMA Ecological Services) indicates the following removal rates can generally be provided by a 100 foot buffer: 6 . . Tidal Wetlands Buffers Guidance DOl;umcnt Page 7 81 percent of total suspended solids 89 percent of sediment 89.5 percent of nitrogen 82 percent of phosphorous Of these potential water quality contaminants, TSS is only one for which a removal standard has been set. The US Environmental Protection Agency has set a TSS removal goal of 80 percent. It should be noted that there is a strong indication in the literature that the effectiveness of buffers is not a linear function. In other words, one cannot take the data listed above and assume that if a 100 foot buffer removes 82 percent of phosphorous, for example, each foot of buffer will remove 0.82 percent of phosphorous or that a 122 foot buffer will remove 100 percent of phosphorous. However, this data does suggest that a 100 foot vegetated buffer has a significant effect in removing the listed substances. In contrast, the data related to the provision of buffers for wildlife functions, including feeding, nesting, resting and movement corridors vary considerably. The following list of effective buffer widths for wildlife functions is taken from How EcoloQV ReQulates Wetlands (Washington State Department of Ecology). 15-23 m (49-75 feet) of riparian wooded area can provide general avian habitat 15-30 m (49-98 feet) of densely growing mixed vegetation can protect wetlands habitat from low-intensity disturbance 30 m (98 feet) of unspecified area can provide a wildlife travel corridor 30-45 m (98-148 feet) of densely growing mixed vegetation can protect wetlands habitat from high-intensity disturbancest 60 m (197 feet) of unspecified area can provide breeding sites for fragment- sensitive bird species 60-100 m (107-328 feet) of unspecified area can provide general wildlife habitat 67 m (220 feet) of wooded riparian area can provide small mammal habitat 91.5 m (300 feet) of natural vegetation a can provide protect significant wildlife habitat 178 m (584 feet) of unspecified area can provide general wetland habitat protection 200 m (656 feet) of unspecified area can provide diverse songbird habitat <200 m (656 feet) of riparian forest can provide reasonable habitat for all except the largest mammals As is apparent from these limited data examples, there is no single universal width that can provide all the desired benefits of a buffer. It can be stated, however, that the effectiveness of a buffer increases with its size Wide buffers (e.g., 100 feet or greater in width) provide the best protection for water quality by moderating temperature changes and improving control of erosion, sediment and pollution and provide the widest range of wildlife values. It can be concluded that wider buffers also provide more 7 . Tidal Wetlands Buffers Guidance Document Page 8 overall benefits such as reducing human disturbance, maintaining wildlife habitat and providing improved flood protection. However, even a narrow buffer (25 to 50 feet in width) can be effective for specific purposes in certain limited situations. For example, a 50-foot buffer supporting dense native vegetation might provide substantial aesthetic benefits and general avian habitat; however, it would not provide adequate entrapment of total suspended solids to meet the EPA goal of 80 percent unless combined with the implementation of other best management practices. Thus, it should be apparent that the optimum width of a tidal wetlands buffer depends upon a combination of on-site and adjacent conditions (topography, soils, upland use, etc.) and desired function of the buffer (water quality protection, wildlife habitat provision, physical barrier to human intrusion, etc.). IN GENERAL TERMS, WHAT DOES THE ULTIMATE TIDAL WETLANDS BUFFER LOOK LIKE? The answer will depend on what you want the buffer to do. Realistically, given Connecticut's historic patterns of development and irregular topography, it often will be difficult to provide a vegetated tidal wetlands buffer that can do it 2!!. However, in general terms, the ultimate tidal wetlands buffer is relatively flat with only a very gentle slope, with undisturbed, moderately permeable soils and dense native vegetation with a heavy layer of leaf litter and is as wide as possible given the lot size, site conditions and proposed upland use(s). CREATING VEGETATED TIDAL WETLANDS BUFFERS: WHERE SHOULD WE USE VEGETATED TIDAL WETLANDS BUFFERS? Tidal wetlands buffers should be located between tidal wetlands and adjacent upland development. Some water-dependent uses or water-dependent components of projects will likely require development within a buffer area, but water-dependent uses and tidal wetlands buffers are not necessarily mutually exclusive. Structures which provide private water access such as appropriately designed walkways or docks may also need to be sited within a buffer area; however, such access should be carefully designed and implemented to minimize potential adverse impacts to the abutting tidal wetlands. How BIG IS BIG ENOUGH? As indicated above, the size of an effective buffer is dependent on many factors and can be anywhere from a relatively narrow unmown area of a lot to a wide forested strip. The ideal buffer width will depend on the desired emphasis (water quality, wildlife habitat, temperature moderation, erosion control, etc.), the amount of available land, and the current or proposed use of the property. In general, a 100-foot wide vegetated area will provide many of the desired buffer benefits. How CAN A MUNICIPALITY IMPLEMENT TIDAL WETLANDS BUFFERS? 8 , Tidal Wetlands ButTers Guidance Document Page 9 lsl. Update zoning regulations to better protect sensitive tidal wetlands by establishing or increasing protective buffers between development and all tidal wetlands 1. These buffers should be required landward of the upland limit of tidal wetlands. In those cases where steep slopes (25 percent or more) abut tidal wetlands, the buffer width should be measured in from the top of the slope. The most effective buffers support dense growth of shrubs and trees. (see below for model regulation language). lsl. Most uses should be prohibited in vegetated buffers. A reasonable exception might be to allow limited access to and, in the case of general public access, along the tidal wetland border. lsl. Once buffers are established by regulation, they should be strictly honored. Variances of the minimum buffer width should only be allowed in those extremely limited cases where there is a strict statutory hardship as defined in the Connecticut General Statutes section 8-6(3) and where compliance with the buffer requirement would render an otherwise buildable lot unusable. lsl. Revise subdivision regulations to require 1 DO-foot wide vegetated buffers abutting all tidal wetlands in new subdivisions lsl. Revise zoning and subdivision regulations to limit clearing of vegetation adjacent to tidal wetlands and within buffer areas. Establish specific standards for the removal of invasive species and perhaps allow minimal clearing to enhance views and provide access where necessary while maintaining the effectiveness of the buffer. lsl. Revise zoning and subdivision regulations to require larger minimum lot sizes in areas containing or abutting tidal wetlands. lsl. You may want to consider adopting buffers to address other resource protection needs. Different approaches to creating vegetated buffers There are many different ways to structure a requirement for vegetated buffers. The most simple approach is to specify a fixed minimum width. While this is simple to administer, it may not be effective enough unless the minimum width is quite wide (100' or more). A wide fixed buffer may be hard to implement in Connecticut given our established development patterns that frequently resulted in housing and other development clustered along the edges of tidal wetlands. Nevertheless, this approach is attractive due to its simplicity. A second approach is to require that a minimum percentage of lot depth be established as a vegetated buffer. This provides some flexibility to respond to the constraints posed I For technic:.!l kgal n.:asons. a munidpality cannot establish a !ili~u \vetlands buffer under its inland wetlands authority. hO\\,(:\'CL this is not a proh1cm because municipal planning and wning authority is amply sufficient. 9 . Tidal Wetlands Butfers Ciuidancc Document Page 10 by existing development However, the common perception may be that owners of deeper (perhaps more valuable lots) are being penalized by being required to provide more buffer in overall width than owners of smaller, less deep lots. A third approach is the use of an equation that factors in specific site conditions such as slope, existing vegetation type (e.g., grassy, shrubby, forested), soil permeability and upland use(s). Often these equations can be quite complicated, municipal staff would require specialized training to enable them to determine the minimum buffer width on a case by case basis. Implementation and enforcement can be labor intensive and time consuming. A fourth technique utilized by some states is to grade wetlands into categories based on their existing value and functions and establish minimum buffer widths that vary based on the category of abutting wetlands This is not a practical approach to establishing tidal wetlands buffers in Connecticut as our general statutes do not differentiate between varying qualities or values of tidal wetlands. If a wetland area meets the definition of tidal wetlands its specific condition (e.g., pristine or degraded) is not relevant to the statutory responsibility to protected the resource. There are other approaches to establishing a tidal wetlands buffer that do not prohibit development within the buffer area, but include incentives for locating new impervious surfaces outside of the buffer. Usually these incorporate the creation of compensation areas based on the area of new impervious surface proposed within the minimum buffer area. This type of approach is attractive as it provides more flexibility than the other approaches noted above. However, establishing appropriate regulation language is a difficult task that requires careful and deliberate consideration. The suggested model regulation language offered below is fashioned after the most simple approach of designating a fixed, effective minimum width tidal wetlands buffers. Based on the data available, a minimum width of 100 feet is recommended for a fixed width vegetated buffer. MODEL REGULATION LANGUAGE Based on the above discussion regarding the value of tidal wetlands buffers and the types of approaches to requiring them, OLlSP offers the following model regulation language that establishes a uniform 1 DO-foot vegetated buffer adjacent to all tidal wetlands. Prior to adoption, this regulation may be tailored to the specific conditions and concerns in your municipality. A resource protection buffer of 100 feet shatt be estabtished along the upland edge of any tidal wetland as defined by Connecticut General Statutes section 22a-29(2). The width of the buffer shall be measured inland from the upland edge of the tidal wetlands except in the case of wetlands bordered by slopes greater than 25% in which case the buffer shall be measured inland from the top of the slope. The following uses and activities are prohibited within the buffer: 10 . 4 ' Tidal Wetlands Buffers Guidance Docummt Page II 1. new building construction that increases the building area or footprint including minor additions to existing buildings; 2. detached accessory buildings such as garages and sheds; 3. pools, tennis courts, patios, terraces; 4. driveways, parking areas; 5. other impervious surfaces; 6. seawalls, bulkheads, retaining walls, landscaping walls or similar structures; 7. grading, excavation or filling, including the construction of new septic systems; 8. land clearing, except for minor clearing to allow for appropriate landscaping or the provision of acceptable access as noted below; 9. dumping of lawn clippings and other wastes; and 10. the application of fertilizers and/or pesticides except when necessary to address a public health issue as determined by the local health official and/or the State Department of Health Services or to control an infestation of invasive vegetative species if authorized by the local conservation commission. The following uses and activities, although not expressly prohibited, are discouraged within the buffer area: 1. the establishment of new lawn areas; 2. extensive clearing or pruning. Minimal clearing to provide views may be allowed, however, to maximize the effectiveness of the buffer, pruning should only be done to the extent necessary to clear a view lane and in a manner that maintains the understory and, if forested, the canopy of the buffer area, i. e., no pruning should be conducted within three feet of the ground to protect the understory and, if wooded, no pruning should occur above 9 feet above the ground to protect the canopy. The following uses and activities are permitted and/or encouraged within the buffer area: 1. preservation of existing native vegetation, including shrubs and trees; 2. removal of invasive species and replacement with native species; 3. elimination and/or minimization of mowing to encourage a variety of native species including shrubs and trees; 4. planting of native vegetation; and. 5. provision of passive recreational opportunities, including the provision of public access where appropriate. However, such uses should be provided I] . 4 l' .., Tidal Wetlands Butlers Guidance Document Page 12 at an appropriate scale so as not to significantly diminish the performance of the buffer as a measure to protect tidal wetlands from disturbance and/or degradation. For larger projects, passive recreation components within a tidal wetlands buffer could include provision of walking trails, benches, small-scale picnic areas, and associated amenities. This regulation does not prohibit the continued use, reconstruction or renovation of any septic disposal system, building, or other improvement in existence on the effective date of the regulation nor does it prohibit the construction of new improvements necessary for the function of water-dependent uses as defined by Connecticut General Statutes section 22a-93(16) except when those improvements can functionally be located outside of the buffer area. Variance of this regulation is strongly discouraged. Exceptions may be made only in those instances where strict adherence would render a parcel unusable. In those cases, the minimum variance necessary to make the parcel usable should be the maximum variance considered. PRIMARY REFERENCES 1. "How Ecology Regulates Wetlands" Washington State Department of Ecology, February 1992, Publication #97-112"Vegetated Buffers in the Coastal Zone: A 2. "The Scientific Basis for Protecting Riparian and Wetland Buffer Zones: A Summary of the Literature" REMA Ecological Services, LLC 3. Summary Review and Bibliography (Des bonnet et al. 1994) prepared by the Coastal Resources Center of the University of Rhode Island School of Oceanography 4. "Vegetative Buffers along Coastal Waters: a Case Study of the Chesapeake Bay Critical Area Program', Jenny Lynn Plummer, May 1993 5. "Wetland Buffers. Use and Effectiveness" Washington State Department of Ecology, February 1992, Publication #92-10 12 . . ST ATE OF NEW YORK ) SS: COUNTY OF SUFFOLK) ELIZABETH A. NEVILLE, Town ClerkJlifthe To~?!u~outhold, New York being duly sworn, says that on the S day O~6~~007, she affixed a notice of which the annexed printed notice is a true copy, in a proper and substantial manner, in a most public place in the Town of Southold, Suffolk County, New York, to wit: Town Clerk's Bulletin Board, 53095 Main Road, Southold, New York. Chapter 275 - December 4,2007 @ 7:35 pm ~~M) (l YlVlJ';}P~ Elizabeth A. Neville Southold Town Clerk SV}{lm before me this NOlJeh\1ber ...J;Ldayof ~~"...... ,2007. ~~ ffib.-O otary Public LYNDA M. 80HN NOTARY PUBLIC, State of New York No. 01806020932 Qualified in Suffolk Coun!y Term Expires March 8, 20 1L #8594 STATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) Karen Kine of Mattituck, in said county, being duly sworn, says that she is Principal Clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper once a week for --1- week(s), successively, commencing on the 15th day of November. 2007. Sworn to before me this LEGALNODCE, N011CE OF PUBLIC IlEAJUNG NonCE IS _BY GIVEN, there has been presented to tbe Town Board of the Town of SouthaId, Suffolk ~. New York, on the 9th day of OctoJ:jer,'2007a LocalLaw entitled ~ ,...... .....bI ~ to A_.d_h to C~Dter 1:15 f'Wetl.1Uk & SIIore_ IiIW: AND NOTICE IS HEREBY FURTHER GIVEN that the Town Board of the Town of Soutbold will bold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th dav of December 2007 at 7:35 B.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled~ I~ Law in relation to AmendmeQtlil to "Chantel' 'J:7S (Weiland'! & Shore_ line)" reads as foHows: LOCAL LAW NO. 2007 A Local Law entitled, "A I..oc.ul Law ~lation to A .....nd_..u to Chanter (Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of Southold as fol- lows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold and to protect the natural protective ~reas existing within the Town, it is necessary to make certain amendments to Chap- ter 275 (Wetlands & Shoreline). These amendments are intended to support the protection of environmental fea- tures within the 1hIstees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. D. Chapter 275 (Wetlands & Shore- line) of the Code of the Town of South- old is hereby amended as follows: ~275-2. Definitions; word usage. ACCESS PATH n an area cleared bv hand or hand-held eouioment no more than 4 feet wide left in its natural state and devoid of anv manmade struc- ture to orovide a walkwav to a hodv of water. DOCK n Any permanent or seasonal structure, except a building, located or proposed to be located on lands abut- ting or comprised of freshwater or tidal wetlands or connected to a bulkhead .or the upland and extending over the water's surface, designed to secure ves- sels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural ar- I eas. The term "dock" includes the terms -"~~rs,""fixed docks," "float- -._-~ , . "fl." I ~~ J!~~ Principal Clerk ILt) 2007 day of CHR~~Ufv~ "IOIARY PUBlIC,STATE OF NEW YORK No, 0 I ,V061 05050 f'.~~:aH-,ieo' in Suffolk County <>n t^p;rB~ ~0bruary 28, 2003 ,. , . . LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN, there has been presented to the Town Board of the Town of South old, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" AND NOTICE IS HEREBY FURTHER GIVEN that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th day of December 2007 at 7:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275 (Wetlands & Shoreline). These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 (Wetlands & Shoreline) of the Code ofthe Town of South old is hereby amended as follows: 9275-2. Definitions; word usage. ACCESS PATH -- an area. cleared bv hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of anv manmade structure. to provide a walkwav to a bodv of water. . . DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". sr "catwalks." FUNCTIONAL - Anv structure that. in its current state, primarilv retains its purpose and use as determined bv the Board of Trustees. NONDISTURBANCE BUFFER - An-- A vegetated area, t)'i3ically 50 feet v;i~e l! minimum of 30 feet wide as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities eafl may take place, except that manmade debris may be removed from such area by hand without the permission ofthe Board of Trustees. RESIDENTIAL DOCK -- Any catwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. 9275-4. Exceptions. A. The provisions of this chapter shall not affect sr prehibit Rsr require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside any designated buffer area are not included in this exception. lane'.vaf~ sf the wetlaR~ bSlolReary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted by this chapter, existing and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows, roof shingles, doors, dormers and siding on existing structures only. (II) Notwithstanding the above listed exceptions, activity within a designated non-disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town . . Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. g275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. Hot to m(eeea 29 feet wiae as aefiHea iH ~275 2. (l) Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing, established vard area when more appropriate upland placement is not possible. Installation, burial or removal of a propane tank less than 25 feet from wetlands is l1.eHerally prohibited. (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. g275-7. Fees. F. Dredging Fee. Everv application for a permit for dredging within Town-owned underwater lands shall include a fee as set by the Town Board based on the amount of cubic yard of dredge spoil to be removed. g275-1O. Contents of permit. L. A statement that "The permittee is required to conspicuously post the permit and have the supporting plans ayailable for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." . . 9275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence. barricade or impediment shall be removed bv the owner within 30 days of the date of the notice. Upon failure to comply with such notice. the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector. Code Enforcement Officer or Bav Constable to create a hazard to the health. safety or welfare of the public. such structure may be removed and disposed ofbv the Town without prior notice to the owner. Upon removal bv the Town. all costs and expenses incurred bv the Town for the removal of such fence. barricade or impediment shall be the responsibilitv of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal. including filing a statement with the Town Assessors. identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors. in preparation of the next assessment roll. shall assess such amount upon such propertv. Such amount shall be included in the levy against such property. shall constitute a lien and shall be collected and enforced in the same manner. bv the same proceedings. at the same time and under the same penaltv as is provided bv law for the collection and enforcement of real property taxes in the Town of South old. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet offence is allowed, no larger than 12 inches by 12 inches square. (2l Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for onlv one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on . . properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature oftheir use. (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), ereesete, penta products, Alkaline Copper Quat (ACQ), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. Any use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls, stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water- dependent nature of their use. (2) Docks. (a) Standards for residential and commercial docks; general rules. It shall be the policy ofthe Town of South old that all docks shall be designed, constructed and located so as to reduce a dock's potential adverse impacts to navigation, public safety, waterway congestion, access to public trust lands and water, and natural resources and habitats. The following standards will serve as a basis for granting, denying, or limiting permits for the construction of docks. [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use oflumber pre-treated with any preservative, including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), ereesete, penta products, Alkaline Copper Quat (ACQ), or homemade . . wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined by the Trustees. The use of creosote is prohibited. Similarly, tile The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be eetefffiiRea at the discretion of the Trustees. (b) Dock locations and lengths. [3] Prohibited locations and activities. [a] GiyeR the lIBi'lHe aRe seasitiye RatHral e1iYirenmEmtal characteristics aescribea iR the T OWR ofSoHthold Local Waterrrollt Re'/italicatisR Plan aRa the New Yark State DCj'lartmellt of State Sigaifica!lt Habitat aescrij'ltioas, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek, East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands, except that floats 20 feet in length or smaller and boats 16 feet in length or smaller may be stored above mean high tide, on blocks at a minimum of 12" above grade, during the period beginning November 1 through May 1. (c) Regulations for the placement and configuration of docking facilities. [1] Residential docks. [a] Only one tIeeI<, catwalk may be permitted per residential lot. Only one mooring or dock may be mooriRg is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential . . property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception ofthe pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees: (3) Dredging. (a) Creeks. [I] Onlv maintenance dredging (as defined in g275-2) effiy is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 vears. (f) All dredging applications must demonstrate a specific location for the deposit of dredging material. g275-16. Compliance requirements; penalties for offenses. B. F or each offense against any of the provisions ofthis chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. . . (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to 9275-10 shall be subject to a fine of not more than $1,000. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specifY a reasonable time for the completion of such restoration, which shall be effected under the supervision ofthe approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to complv with a restoration plan. Anv person failing to complv with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $1.000 and not more than $4,000. ~@ Mitigation. When on-site wetlands restoration and creation may be infeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees mav revoke a permit when a violation of this Chapter or Chapter III is found on the same propertv. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are J!.named as defendants in an outstanding or unresolved wetland violatioB.violation of Chapter 275 (Wetlands & Shoreline) Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law . . Dated: October 23, 2007 BY ORDER OF THE TOWN BOARD OF THE TOWN OF SOUTHOLD Elizabeth Neville Town Clerk PLEASE PUBLISH ON NOVEMBER 15. 2007. AND FORWARD ONE (I) AFFIDAVIT OF PUBLICA nON TO ELIZABETH NEVILLE. TOWN CLERK. TOWN HALL. P.O. BOX 1179. SOUTHOLD. NY 11971. Copies to the following: The Suffolk Times Town Attorney Trustees Town Board Members Town Clerk's Bulletin Board Southold Town Board - LI. . Ii- Board ~ting of November 7, 2007 RESOLUTION 2007-866 ADOPTED Item # 26 DOC ID: 3300 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-866 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON NOVEMBER 7, 2007: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs the Town Clerk to forward the proposed Local Law entitled. "A Local Law in relation to Amendments to Chapter 275". to the South old Town Plannin!! Board and the Suffolk County Plannin!! Commission for comments and recommendations. PRrUfa~~~I.. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Thomas H. Wickham, Councilman SECONDER: Louisa P. Evans, Justice AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Generated November 9, 2007 Page 42 . . Southold Town Board - Letter . I). Board ~ting ofNove~b~~:', 2007 RESOLUTION 2007-870 ADOPTED Item # 30 DOC ID: 3304 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-870 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON NOVEMBER 7, 2007: RESOLVED that the Town Board of the Town of Southold hereby amends resolution 2007- 792. adopted at the October 9. 2007 rel!:ular Town Board meetinl!: to read as follows: WHEREAS, there has been presented to the Town Board of the Town of South old, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275" now, therefore, be it RESOLVED that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th day of December 2007 at 7:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose -In order to provide for the health, safety and welfare ofthe citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to Generated November 9,2007 Page 46 . Southold Town Board - LA Board .ting of November 7, 2007 support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of South old is hereby amended as follows: g275-2. Definitions; word usage. ACCESS PATH -- an area. cleared bv hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of anv manmade structure. to provide a walkwav to a bodv of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". sr "eatwalks." FUNCTIONAL - Anv structure that. in its current state. primarilv retains its purpose and use as determined bv the Board of Trustees. NONDISTURBANCE BUFFER - Aft- A vegetated area, tYflieally 50 feet '.vide 1! minimum of 30 feet wide as designated bv the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities ellB mav take place. except that manmade debris mav be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any cat\valk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. Generated November 9, 2007 Page 47 . Southold Town Board - Letter Board rlting of November 7,2007 g275-4. Exceptions. A. The provisions of this chapter shall not affeet sr J3rshieit lIor require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal oftrees outside anv designated buffer area are not included in this exception. lallawanl sf the wetlalla eElilllaary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted bv this chapter. eJdstillg and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows. roof shingles. doors. dormers and siding on existing structures onlv. (II) Notwithstanding the above listed exceptions. activitv within a designated non- disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. g275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. Rot tEl elweea 20 feet wide as aefillea iR ~275 2. m Minor restoration or alterations of landscaping. em) Decks. (n) Minor alterations to existing permitted shoreline structures including Generated November 9,2007 Page 48 Southold Town Board - LA Board .ting of November 7,2007 stairs. bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing. established vard area when more appropriate upland placement is not possible. Installation. burial or removal of a propane tank less than 25 feet from wetlands is e:8aeFally prohibited. (p) Dredging work caused bv the accumulation of silt from run-off or other circumstances not the result of activitv bv or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. g275-7. Fees. F. Dredging Fee. Every application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic vard of dredge spoil to be removed. g275-10. Contents of permit. L. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." g275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence. barricade or impediment shall be removed bv the owner within 30 davs of the date of the notice. Upon failure to complv with such notice. the Building Inspector. Code Enforcement Generated November 9, 2007 Page 49 . Southold Town Board - Letter Board ~ting of November 7,2007 Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence, barricade or impediment is determined bv the Building Inspector, Code Enforcement Officer or Bav Constable to create a hazard to the health, safety or welfare of the public, such structure may be removed and disposed ofbv the Town without prior notice to the owner. Upon removal bv the Town, all costs and expenses incurred bv the Town for the removal of such fence. barricade or impediment shall be the responsibility of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal, including filing a statement with the Town Assessors, identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors, in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levv against such property, shall constitute a lien and shall be collected and enforced in the same manner, bv the same proceedings. at the same time and under the same penaltv as is provided bv law for the collection and enforcement of real property taxes in the Town of Southold. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet of fence is allowed, no larger than 12 inches by 12 inches square. m Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for onlv one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water- dependent nature of their use. Generated November 9,2007 Page 50 Southold Town Board - Le. Board _ting of November 7, 2007 (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), ereosote, penta products, Alkaline Copper Quat (ACQ). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. Anv use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining wall~ stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned M1 or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), eressBte, penta products, Alkaline Copper Quat (ACQ). or homemade wood preservatives is prohibited for Generated November 9, 2007 Page 51 . Southold Town Board - Letter Board !ting of November 7, 2007 use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be determined at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] Given the anique and sonsitiye namral elwirellffisntal characterinties described in the Town of Sol!thold Leeal Waterfront Revitalization Plan and the New York State Department of State Significant Habitat descriptions, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek. East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. [3] [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands. except that floats 20 feet in length or smaller and boats 16 feet in length or smaller mav be stored above mean high tide. on blocks at a minimum of 12" above grade. during the period beginning November I through Mav I. (c) Regulations for the placement and configuration of docking facilities. [I] Residential docks. [a] Only one 00ek. catwalk mav be permitted per residential Generated November 9,2007 Page 52 Southold Town Board - Le. Board ating of November 7, 2007 [i] lot. Onlv one mooring or dock may be meoring is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal SQuare footage as determined bv the Trustees: [b] (3) Dredging. ( a) Creeks. [I] Onlv maintenance dredging (as defined in g275-2) enly is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (0 All dredging applications must demonstrate a specific location for the deposit of dredging material. g275-12 A Standards for Issuance of permit &275-12 B Stop work orders. A. The Bav Constable or Code Enforcement Officer is authorized to issue stop-work orders pursuant to this section. The Bav Constable or Code Enforcement Officer shall issue a stop-work order to halt: (I) Anv work that is determined bv the Bav Constable or Code Enforcement Officer to be contrary to any applicable provision of this Chapter, or: (I) Anv work that is being conducted in a dangerous or unsafe manner in the opinion of the Bav Constable or Code Enforcement Officer, Generated November 9,2007 Page 53 Southold Town Board - Llr Board ating of November 7,2007 without regard to whether such work is or is not work for which a trustee permit is required. and without regard to whether a trustee permit has or has not been issued for such work; or (2) Anv work for which a trustee permit is required which is being performed without the required trustee permit. or under a trustee permit that has become invalid. has expired. or has been suspended or revoked. B. Stop-work orders shall: (I) Be in writing; (2) Be dated and signed bv the Bay Constable or Code Enforcement Officer; (3) State the reason or reasons for issuance; (4) If applicable. state the conditions which must be satisfied before work will be permitted to resume. C. The Bav Constable or Code Enforcement Officer shall cause the stop-work order. or a COpy thereof. to be served on the owner of the affected property. and if the owner is not the permit holder. on the permit holder. personally or by certified mail to the owner or permit holder and posting at the work site. The Bay Constable or Code Enforcement Officer shall be permitted. but not required. to cause the stoP- work order. or a COpy thereof. to be served on any or all ofthe following: builder. architect. tenant. contractor. subcontractor. construction superintendent. or their agents. or anv other person taking part or assisting in work affected by the stop- work order. personally or be certified mail and posting; provided. however. that failure to serve anv person listed above shall not affect the efficacy of the stop- work order. D. Upon issuance of the stop-work order. the owner of the affected property, the l'ermit holder and any other person performing. taking part in or assisting in the work shall immediately cease all work which is the subiect of the stop-work order. Generated November 9,2007 Page 54 Southold Town Board - Le. Board .ting of November 7,2007 E. The issuance of a stop-work order shall not be the exclusive remedy available to address any event described in this section. and the authority to issue a stop-work order shall be in addition to. and not in substitution for or limitation of. the right and authority to pursue any other remedy or impose any other penalty under any other applicable local or state law. Any such remedy or penalty may be pursued at any time. whether prior to, at the time of, or after the issuance of a stop-work order. 9275- I 6. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions ofthis chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,OO!l. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,0!lO $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to 9275-10 shall be subject to a fine of not more than $1,000. (3) Failure to heed a cease liRd desist order stop work order. Any person conducting operations in direct contradiction to the terms of a stop- Generated November 9,2007 Page 55 . Southold Town Board - Letter Board !ting of November 7, 2007 work order shall be subject to a fine of not less than $1000 and not more than ~. $4000. For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1000 nor more than ~ $7500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to complv with a restoration plan. Anv person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $ LOOO and not more than $4,000. E$)@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees may revoke a permit when a violation ofthis Chapter or Chapter III is found on the same property. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are ~named as defendants in an outstanding or unresolved wetIaFld vielathlR.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE Generated November 9, 2007 Page 56 Southold Town Board - Le. Board .ting of November 7, 2007 . This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law ~jll~IfCl2f--e'tl. Elizabeth A. Neville South old Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Albert Krupski Jr., Councilman SECONDER: William P. Edwards, Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Generated November 9, 2007 Page 57 , . Southold Town Board - Letter . lL-- Board ~eting of October 23, 2007 RESOLUTION 2007-833 ADOPTED Item # 35 DOC ID: 3269 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-833 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON OCTOBER 23, 2007: RESOLVED that the Town Board of the Town of South old hereby amends resolution 2007- 792. adonted at the October 9. 2007 rel!ular Town Board meetinl! to read as follows: WHEREAS, there has been presented to the Town Board of the Town of South old, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chanter 275" now, therefore, be it RESOLVED that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 4th day of December 2007 at 7:35 n.m.;Wth ofNe','emeer, 2007 at 1:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chanter 275" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chanter 275". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is Generated October 25, 2007 Page 40 Southold Town Board - L.r Boar~eeting of October 23,2007 . necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 of the Code of the Town of Southold is hereby amended as follows: ~275-2. Definitions; word usage. ACCESS PATH -- an area. cleared bv hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of any manmade structure. to provide a walkway to a body of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eat\valks." FUNCTIONAL - Anv structure that. in its current state. primarilv retains its purpose and use as determined by the Board of Trustees. NONDISTURBANCE BUFFER - An- A vegetated area, t)1lieally 59 feet '""ide i! minimum of 30 feet wide as designated by the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities etlft may take place. except that manmade debris may be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any elffivalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as Generated October 25,2007 Page 41 . Southold Town Board - Letter . Board Meeting of October 23, 2007 ramps and mooring piles. ~275-4. Exceptions. A. The provisions of this chapter shall not affest or preHibit nor require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside anv designated buffer area are not included in this exception. lans'.vanl of tile '.vetland bOllRsary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted bv this chapter. existing and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows. roof shingles. doors. dormers and siding on existing structures onlv. (11) Notwithstanding the above listed exceptions. activitv within a designated non- disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition ofa nonturfpervious buffer area. not te exceed 2() fcet wide as defines in ~275 2. m Minor restoration or alterations of landscaping. (m) Decks. Generated October 25, 2007 Page 42 Southold Town Board - L.r Boar!eeting of October 23, 2007 (n) Minor alterations to existing permitted shoreline structures including stairs, bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing, established yard area when more appropriate upland placement is not possible. Installation. burial or removal of a propane tank less than 25 feet from wetlands is gtlBtlFaily prohibited. (p) Dredging work caused bv the accumulation of silt from run-off or other circumstances not the result of activity bv or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. 9275-7. Fees. F. Dredging Fee. Every application for a permit for dredging within Town-owned underwater lands shall include a fee as set bv the Town Board based on the amount of cubic yard of dredge spoil to be removed. 9275-10. Contents of permit. L. A statement that "The permittee is required to conspicuouslv post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." 9275-1 I. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Anv fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent bv certified or registered mail. Such fence. barricade or impediment shall be removed bv the owner within 30 days of the date of the notice. Upon Generated October 25, 2007 Page 43 . Southold Town Board - Letter . Board Meeting of October 23,2007 failure to comply with such notice, the Building Inspector. Code Enforcement Officer or Bav Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined bv the Building Inspector, Code Enforcement Officer or Bav Constable to create a hazard to the health, safety or welfare of the public, such structure may be removed and disposed ofbv the Town without prior notice to the owner. Upon removal bv the Town, all costs and expenses incurred bv the Town for the removal of such fence. barricade or impediment shall be the responsibility of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal. including filing a statement with the Town Assessors, identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors. in preparation of the next assessment roll, shall assess such amount upon such property. Such amount shall be included in the levy against such property, shall constitute a lien and shall be collected and enforced in the same manner, bv the same proceedings, at the same time and under the same penalty as is provided bv law for the collection and enforcement of real property taxes in the Town of Southold. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet of fence is allowed, no larger than 12 inches by 12 inches square. m Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined bv the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water- Generated October 25, 2007 Page 44 Southold Town Board - L.r Boarleeting of October 23, 2007 dependent nature of their use. (J) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), creosote, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. Anv use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining wall~ stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), creosote, penta products, Alkaline COPl'er Ouat (ACO). or homemade wood preservatives is prohibited for Generated October 25,2007 Page 45 . Southold Town Board - Letter . Board Meeting of October 23,2007 use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. The use of creosote is prohibited. Similady, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be detefHlinea at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] Given the ooil'lt/e ana sensitive nlHlHal envifBBlBental eh!lffieteristies deserieed iFl the Te':iFl of Set/thold Leeal WatelfreFlt Re'/italii3atien PllIFIlIFIa the Ney. Yerk State Department ef State SigFlifieant Habitat deseriptiens, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek. East of Grand Avenue bridge), Pipe's Cove Creek and West Creek. [3] [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands. except that floats 20 feet in length or smaller and boats 16 feet in length or smaller may be stored above mean high tide. on blocks at a minimum of 12" above grade. during the period beginning November I through May I. (c) Regulations for the placement and configuration of docking facilities. [I] Residential docks. [a] Only one deek. catwalk mav be permitted per residential Generated October 25, 2007 Page 46 Southold Town Board - Llr Boar!eeting of October 23, 2007 [b] lot. Onlv one mooring or dock may be moonHg is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential property. If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees; [i] (3) Dredging. (a) Creeks. [I] Onlv maintenance dredging (as defined in g275-2) ooly is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 years. (0 All dredging applications must demonstrate a specific location for the deposit of dredging material. g275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. Generated October 25, 2007 Page 47 . Southold Town Board - Letter .. Board MeetIng of October 23, 2007 (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4.000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,QOO $7.500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to S275-1O shall be subject to a fine of not more than $1,000. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to comply with a restoration plan. Any person failing to comply with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guilty of an offense and subiect to a fine of not less than $1.000 and not more than $4.000. ~ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees mav revoke a permit when a violation of this Chapter or Chapter III is found on the same property. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are JLnamed as defendants in an outstanding or unresolved 'Netland ','ielatien.vielation of Chapter 275 Wetlands and Shereline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY Generated October 25, 2007 Page 48 Southold Town Board - L.r Boarleeting of October 23,2007 If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law aa.L 4,fCa:;Aw;ti.. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Daniel C. Ross, Councilman SECONDER: William P. Edwards, Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Generated October 25, 2007 Page 49 " . . LEGAL NOTICE NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN, there has been presented to the Town Board of the Town of South old, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" AND NOTICE IS HEREBY FURTHER GIVEN that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 20th of November, 2007 at 4:35 p.m. at which time all interested persons will be given an opportunity to be heard, The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275 (Wetlands & Shoreline)". l~ ~~ l'-l~ 'I- \1__<:> " 't; -- ~ _u~ ~~~ 'I- .fl-r ~i BE IT ENACTED by the Town Board of the Town of Southold as follows: I. Purpose - In order to provide for the health, safety and welfare of the citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275 (Wetlands & Shoreline). These amendments are intended to support the protection of environmental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. II. Chapter 275 (Wetlands & Shoreline) of the Code of the Town of South old is hereby amended as follows: - I 9275-2. Definitions; word usage. ACCESS PATH n an area, cleared by hand or hand-held equipment, no more than 4 feet wide, left in its natural state and devoid of any manmade structure, to provide a walkway to a body of water. . . DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "catwalks." FUNCTIONAL - Anv structure that. in its current state, primarilv retains its purpose and use as determined bv the Board of Trustees. NONDISTURBANCE BUFFER - An- A vegetated area, typically 50 feet wiae !! minimum of 30 feet wide as designated by the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities eaIl may take place, except that manmade debris may be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any catwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. 9275-4. Exceptions. A. The provisions of this chapter shall not affect or prohibit Ror require a permit for the following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal oftrees outside anv designated buffer area are not included in this exception. hma'.'.'!lfa of the wetlana bOHRaary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted by this chapter, existiRg and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. (10) Installation of new or replacement windows, roof shingles, doors, dormers and siding on existing structures only. (II) Notwithstanding the above listed exceptions, activity within a designated non-disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town . . Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: G) The reconstruction of a permitted bulkhead as per &275-11, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. not to eKseed 20 foet wide as aefined in ~275 2. CD Minor restoration or alterations of landscaping. (m) Decks. (n) Minor alterations to existing permitted shoreline structures including stairs. bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing. established yard area when more appropriate upland placement is not possible. Installation. burial or removal of a propane tank less than 25 feet from wetlands is l::eneraliy prohibited. (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. 9275-7. Fees. F. Dredging Fee. Everv application for a permit for dredging within Town-owned underwater lands shall include a fee as set by the Town Board based on the amount of cubic yard of dredge spoil to be removed. 9275-10. Contents of permit. L. A statement that "The permittee is required to conspicuously post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." . . ~275-11. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Any fence, barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent by certified or registered mail. Such fence. barricade or impediment shall be removed by the owner within 30 days of the date of the notice. Upon failure to comply with such notice. the Building Inspector. Code Enforcement Officer or Bay Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined by the Building Inspector. Code Enforcement Officer or Bay Constable to create a hazard to the health. safety or welfare of the public. such structure may be removed and disposed of by the Town without prior notice to the owner. Upon removal by the Town. all costs and expenses incurred by the Town for the removal of such fence. barricade or impediment shall be the responsibility of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal. including filing a statement with the Town Assessors. identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll ofthe Town. The Assessors. in preparation of the next assessment roll. shall assess such amount upon such property. Such amount shall be included in the levv against such property, shall constitute a lien and shall be collected and enforced in the same manner. by the same proceedings. at the same time and under the same penalty as is provided by law for the collection and enforcement of real property taxes in the Town of South old. A fence may be permitted if the applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet of fence is allowed, no larger than 12 inches by 12 inches square. (2) Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (10) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined by the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on . . properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with anv preservative. including but not limited to chromated copper arsenate (also known as "CCA"), ersesete, penta products, Alkaline Copper Quat (ACQ). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. Anv use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining walls. stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water- dependent nature of their use. (2) Docks. (a) Standards for residential and commercial docks; general rules. It shall be the policy of the Town of Southold that all docks shall be designed, constructed and located so as to reduce a dock's potential adverse impacts to navigation, public safety, waterway congestion, access to public trust lands and water, and natural resources and habitats. The following standards will serve as a basis for granting, denying, or limiting permits for the construction of docks. [3] In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use oflumber pre-treated with anv preservative, including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), ereesote, penta products, Alkaline Copper Quat (ACO), or homemade . . wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on anv part of a structure in low tidal flow wetland areas as determined bv the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it is certified by the Forest Stewardship Councilor similar organization. Materials used for structural components shall be eetermillee at the discretion of the Trustees. (b) Dock locations and lengths. [3] Prohibited locations and activities. [a] Gi'/ell the lllli"llle and sensitiye Ilataral environmemal characteristics described in the Town of Soathold Local W aterHem Revitali~tion Plan and the New York State Departmem of State Significant Habitat aescriptions, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Mattituck Creek, East of Grand Avenue bridge). Pipe's Cove Creek and West Creek. [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands, except that floats 20 feet in length or smaller and boats 16 feet in length or smaller mav be stored above mean high tide, on blocks at a minimum of 12" above grade, during the period beginning November I through Mav 1. (c) Regulations for the placement and configuration of docking facilities. [1] Residential docks. [a] Only one deck. catwalk mav be permitted per residential lot. Onlv one mooring or dock mav be meering is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the same residential . . property. [b] If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: [i] It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees; (3) Dredging. (a) Creeks. [1] Onlv maintenance dredging (as defined in 9275-2) enly is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 vears. (0 All dredging applications must demonstrate a specific location for the deposit of dredging material. 9275-16. Compliance requirements; penalties for offenses. B. For each offense against any of the provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1,000. $4,000 For each subsequent offense, the violator shall be guilty of a misdemeanor punishable by a fine not less than $1,000 nor more than $2,000 $7,500 or a term of imprisonment of not less than 15 days nor more than six months, or both. . . (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to 9275-10 shall be subject to a fine of not more than $1,000. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to comolv with a restoration olan. Anv oerson failing to comoly with the terms of a mandated restoration olan as detailed in subsection 4 of this section within the oroscribed oeriod of time for comoletion shall be guilty of an offense and subiect to a fine of not less than $1,000 and not more than $4,000. ~@ Mitigation. When on-site wetlands restoration and creation may be infeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees mav revoke a oermit when a violation ofthis Chaoter or Chaoter III is found on the same orooertv. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are JLnamed as defendants in an outstanding or unresolved wetlllflG violatioR.violation of Chaoter 275 (Wetlands & Shoreline) Wetlands and Shoreline or Chaoter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law . . Dated: October 9, 2007 BY ORDER OF THE TOWN BOARD OF THE TOWN OF SOUTHOLD Elizabeth Neville Town Clerk PLEASE PUBLISH ON NOVEMBER 1. 2007, AND FORWARD ONE (1) AFFIDAVIT OF PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK TOWN HALL, P.O. BOX 1179, SOUTHOLD, NY 11971. Copies to the following: The Suffolk Times Town Attorney Trustees Town Board Members Town Clerk's Bulletin Board . . STATE OF NEW YORK) SS: COUNTY OF SUFFOLK) ELIZABETH A. NEVILLE, Town Clerk of the Town of South old, New York being duly sworn, says that on the aa day of 00t-~ ,2007, she affixed a notice of which the annexed printed notice is a true copy, in a proper and substantial manner, in a most public place in the Town of South old, Suffolk County, New York, to wit: Town Clerk's Bulletin Board, 53095 Main Road, Southold, New York. Public Hearing Chapter 275, November 20, 2007, 4:35 p.m. ~J4Q,-nWjl1v hzabeth A. Neville Southold Town Clerk Sworn before l) this ~~~r.;v7 otary Public lYNDA M. BOHN NOTARY PUBLIC, State of New York No. 01 B06020932 Qualified In Suffolk County Term Expires March 8, 20 .ll- . .~,~_J," Board Me-ettg of October 9,2007 Southold Town Board - Letter RESOLUTION 2007-792 ADOPTED Item # 19 DOC ID: 3221 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2007-792 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON OCTOBER 9, 2007: WHEREAS, there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 9th day of October, 2007 a Local Law entitled "A Local Law in relation to Amendments to Chapter 275" now, therefore, be it RESOLVED that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 20th of November, 2007 at 4:35 p.m. at which time all interested persons will be given an opportunity to be heard. The proposed Local Law entitled, "A Local Law in relation to Amendments to Chapter 275" reads as follows: LOCAL LAW NO. 2007 A Local Law entitled, "A Local Law in relation to Amendments to Chapter 275". BE IT ENACTED by the Town Board of the Town of South old as follows: I. Purpose - In order to provide for the health, safety and welfare ofthe citizens of the Town of Southold, and to protect the natural protective areas existing within the Town, it is necessary to make certain amendments to Chapter 275. These amendments are intended to support the protection of enviromnental features within the Trustees' jurisdiction, strengthen enforcement, simplify the permit process and clarify activities that may be conducted in protected areas. Generated October 12, 2007 Page 23 Southold Town Board - Lllr Bo&eeting of October 9,2007 II. Chapter 275 of the Code of the Town of South old is hereby amended as follows: 9275-2. Definitions; word usage. ACCESS PATH -- an area. cleared by hand or hand-held equipment. no more than 4 feet wide. left in its natural state and devoid of any manmade structure. to provide a walkway to a body of water. DOCK -- Any permanent or seasonal structure, except a building, located or proposed to be located on lands abutting or comprised of freshwater or tidal wetlands or connected to a bulkhead or the upland and extending over the water's surface, designed to secure vessels and provide access from the shore to a body of water. For the purpose of this chapter, this term shall also include the associated structures necessary to cross wetlands and adjacent natural areas. The term "dock" includes the terms "wharves," "piers," "fixed docks," "floating docks," or "floats". or "eafwalks." FUNCTIONAL - Any structure that. in its current state. primarily retains its purpose and use as determined by the Board of Trustees. NONDISTURBANCE BUFFER - Aft- A vegetated area, tYJlieally 59 feet '",ide 1! minimum of 30 feet wide as designated by the Board of Trustees, immediately landward of the wetland boundary, shoreline structure, or other line designated by the Trustees where no operations, maintenance, placement of signs or other activities ean may take place. except that manmade debris may be removed from such area by hand without the permission of the Board of Trustees. RESIDENTIAL DOCK -- Any eatwalk, fixed dock and/or floating dock designed or constructed as a continuous unit to provide access to the surface waters from a lot that is zoned for residential use. The term "dock" shall include all associated structures such as ramps and mooring piles. 9275-4. Exceptions. A. The provisions of this chapter shall not affeet or prohibit Rer require a permit for the Generated October 12,2007 Page 24 . . Southold Town Board - Letter Board Meeting of October 9,2007 following: (4) The ordinary and usual operations relative to residential horticulture within Trustees' iurisdiction limited to the use of non-invasive native species of vegetation. Re-grading and removal of trees outside any designated buffer area are not included in this exception. landv;ara ef the wetlanElllellfldary. (5) The ordinary and usual maintenance or repair (of the same dimensions) of a presently permitted by this chapter. eldstiag and functioning building, dock, pier, wharf, jetty, groin, dike, dam or other water-control device or structure. C I 0) Installation of new or replacement windows. roof shingles. doors. dormers and siding on existing structures only. (I I) Notwithstanding the above listed exceptions. activitv within a designated non- disturbance buffer is prohibited. B. Nothing contained in this section shall alter the jurisdiction of the Southold Town Board of Trustees. These listed exceptions do not provide an exemption from the requirements of other departments or agencies. 9275-5. Permit procedures. B. Administrative permit. (2) The following operations will be considered for administrative review: (j) The reconstruction of a permitted bulkhead as per &275-1 I, which is to replace an existing functional bulkhead, subject to the following: [3] Any such activities shall require the addition of a nonturf pervious buffer area. Hot te elmeeEl 20 feet '.vide as aefiHea iH ~275 2. m Minor restoration or alterations of landscaping. Cm) Decks. Cn) Minor alterations to existing permitted shoreline structures including stairs. bulkheads and docks. (0) Installation or burial of a residential propane/liquid gas tank 25 feet from wetlands in an existing. established yard area when more appropriate Generated October 12,2007 Page 25 Southold Town Board - L.r BoAeeting of October 9, 2007 upland placement is not possible. Installation. burial or removal of a propane tank less than 25 feet from wetlands is geaerally prohibited. (p) Dredging work caused by the accumulation of silt from run-off or other circumstances not the result of activity by or on behalf of the owner of the property and in event at the discretion of the Board of Trustees. ~275-7. Fees. F. Dredging Fee. Every application for a permit for dredging within Town-owned underwater lands shall include a fee as set by the Town Board based on the amount of cubic yard of dredge spoil to be removed. ~275-10. Contents of permit. L. A statement that "The permittee is required to conspicuously post the permit and have the supporting plans available for immediate inspection at the worksite at the commencement of work until which time the proiect is completed." ~275-ll. Construction and operation standards. A. General. The following standards are required for all operations within the jurisdiction of the Trustees: (4) Fences. In general, fences are prohibited from beaches and wetland areas. Any fence. barricade or impediment to pedestrian traffic on the beach or wetland area in violation of the provisions of this chapter shall be removed upon written notice to the owner of the premises upon which such fence. barricade or impediment is located sent by certified or registered mail. Such fence. barricade or impediment shall be removed by the owner within 30 days of the date of the notice. Upon failure to comply with such notice. the Building Inspector. Code Enforcement Officer or Bay Constable may remove or cause the removal of the illegal structure. If any fence. barricade or impediment is determined by the Building Inspector. Code Enforcement Officer or Bay Constable to create a hazard to the Generated October 12, 2007 Page 26 . . Southold Town Board - Letter Board Meeting of October 9,2007 health. safety or welfare of the public. such structure may be removed and disposed of by the Town without prior notice to the owner. Upon removal by the Town. all costs and expenses incurred by the Town for the removal of such fence. barricade or impediment shall be the responsibility of the owner. The Town may pursue any and all remedies available at law to recover any unpaid costs associated with removal. including filing a statement with the Town Assessors. identifying the property in connection with which such expenses were incurred and the owner thereof as shown on the latest assessment roll of the Town. The Assessors. in preparation of the next assessment roll. shall assess such amount upon such property. Such amount shall be included in the levy against such property. shall constitute a lien and shall be collected and enforced in the same manner. by the same proceedings. at the same time and under the same penalty as is provided by law for the collection and enforcement of real property taxes in the Town of South old. A fence may be permitted ifthe applicant has demonstrated a special need. Upon such a finding by the Trustees the fence must be split-rail, perpendicular to the waterline and not closer than 10 feet to MHW. Only one posted sign per 100 linear feet offence is allowed, no larger than 12 inches by 12 inches square. 122 Pumping of Town-owned freshwater wetlands for irrigation purposes shall be prohibited. (! 0) Access paths. A permit for only one path shall be granted per lot for the purposes of shoreline access unless otherwise determined by the Board of Trustees. B. Shoreline structures. The following standards are required for all operations relating to shoreline structures on residential properties. Operations conducted on properties zoned M1 or M2 may be given greater flexibility in these requirements given the water- dependent nature of their use. (1) Bulkheads, retaining walls, revetments and gabions. (f) In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre-treated with anv Generated October 12,2007 Page 27 Southold Town Board - L.r Bo&eeting of October 9, 2007 preservative. including but not limited to chromated copper arsenate (also known as "CCA"), ereesete, penta products, Alkaline Copper Ouat (ACO). or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. Anv use of creosote is prohibited. Preservatives of any type, including but not limited to those listed above cannot be applied to any bulkheads, retaining walls or revetments after installation. Encapsulated pilings or native nonchemically treated (untreated) lumber only should be used in sensitive areas. (I) Lighting: Any and all lights associated with bulkheads, retaining wall~ stairs or poles in Trustee jurisdiction must be directed on the subject structure and not out into the adjacent wetland, waterway or property. Lights shall not be on unless the waterfront is in active use. C. In water. The following standards are required for all in-water operations adjacent to residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibility in these requirements given the water-dependent nature of their use. (2) Docks. (a) [3] Generated October 12,2007 In order to prevent the release of metals and other contaminants into the wetlands and waters of Southold, the use of lumber pre- treated with any preservative. including but not limited to chromated copper arsenate (also known as "CCA"), commercial copper quat (CCQ), ereesote, penta products, Alkaline Copper Ouat (ACO), or homemade wood preservatives is prohibited for use in sheathing and decking on structures in the wetlands as well as on any part of a structure in low tidal flow wetland areas as determined by the Trustees. The use of creosote is prohibited. Similarly, the The use of tropical hardwoods is prohibited unless it Page 28 . . Southold Town Board - Letter Board Meeting of October 9,2007 is certified by the Forest Stewardship Council or similar organization. Materials used for structural components shall be eetefffiiaeEl at the discretion of the Trustees. (b) Dock locations and lengths. [3] [a] Givea the llBiElHll aad seasitive aatwul eaviranmeatal eharaeteristies deseribed ia the Tev;a ef SeathelEl Leeal Wateffieat Re'/italizatiaa Plan and the }!ew Yal'll State Dej'lar'.meBt ef State SigaifieaBt Habitat deseriJltieas, No new docks will be permitted, over vegetated wetlands or such that it causes habitat fragmentation of vegetated wetlands in the following areas: Downs Creek, Hallocks Bay, Hashamomuck Creek and Pond, Long Creek (branch of Matti tuck Creek. East of Grand Avenue bridge). Pipe's Cove Creek and West Creek. [3] [d] No floating docks, floats, dock components, duck blinds or boats shall be stored on tidal wetlands, other intertidal areas or freshwater wetlands. except that floats 20 feet in length or smaller and boats 16 feet in length or smaller mav be stored above mean high tide. on blocks at a minimum of 12" above grade. during the period beginning November I through Mav 1. (c) Regulations for the placement and configuration of docking facilities. [1] Residential docks. [a] Only one dee*. catwalk may be permitted per residential lot. Only one mooring or dock may be moeriag is permitted per residential lot. Upon a showing of special need due to low water level and hazard to property, the Trustees may permit both a mooring and a dock for the Generated October 12, 2007 Page 29 Southold Town Board - L.r Bo&eeting of October 9,2007 [b) same residential property. If any part of a residential dock structure includes a float or floating dock, the float or floating dock portion shall be designed so that, with the exception of the pilings: It is no larger than six feet wide and 20 feet long except on Fishers Island if the need is demonstrated; or of equal square footage as determined bv the Trustees: [i) (3) Dredging. (a) Creeks. [1] Onlv maintenance dredging (as defined in 9275-2) 6flIy is permitted, unless the applicant owns underwater land or the applicant is requesting permission to dredge in connection with installation of low-sill bulkheads. All maintenance dredging permits shall be valid for a period no greater than 10 vears. (Q) All dredging applications must demonstrate a specific location for the deposit of dredging material. 9275-16. Compliance requirements; penalties for offenses. B. For each offense against any ofthe provisions of this chapter or any regulations made pursuant thereto, or failure to comply with a written notice or order of any Director of Code Enforcement or Bay Constable within the time fixed for compliance therewith, the owner, occupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Director of Code Enforcement or Bay Constable shall be subject to the following fine schedule. Each day on which such violation occurs shall constitute a separate, additional offense. (2) Failure to comply with the terms of a permit. (a) Any person failing to comply with the terms of a permit shall be subject to a fine of not less than $500 and not more than $1 ,GOO. $4.000 For each subsequent offense, the violator shall be guilty of a misdemeanor Generated October 12,2007 Page 30 . . Southold Town Board - Letter Board Meeting of October 9, 2007 punishable by a fine not less than $1,000 nor more than $2,00Q $7.500 or a term of imprisonment of not less than 15 days nor more than six months, or both. (b) Any person failing to comply with posting the permit and/or the requirement for supporting plans to be available for immediate inspection pursuant to ~275-10 shall be subject to a fine of not more than $1,000. (4) Restoration. In lieu or in addition to these punishments, any offender may be punished by being ordered to restore the affected wetland to its condition prior to the offense. Any such order shall specify a reasonable time for the completion of such restoration, which shall be effected under the supervision of the approving authority. The Trustees reserve the right to require specific replanting and restoration methods including specific survivability and success criteria. (5) Failure to complv with a restoration plan. Anv person failing to complv with the terms of a mandated restoration plan as detailed in subsection 4 of this section within the proscribed period of time for completion shall be guiltv of an offense and subiect to a fine of not less than $1.000 and not more than $4.000. ~@ Mitigation. When on-site wetlands restoration and creation may be unfeasible due to technical or other constraints, other mitigative measures, such as off-site wetland restoration or creation, may be required. C. The Trustees mav revoke a permit when a violation of this Chapter or Chapter III is found on the same property. No new permits will be issued to any carter, owner, occupant, builder, architect, contractor or their agents if they are lLnamed as defendants in an outstanding or unresolved wetland violation.violation of Chapter 275 Wetlands and Shoreline or Chapter III Coastal Erosion Hazard Areas. III. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. Generated October 12,2007 Page 31 Southold Town Board - L.r BoAeeting of October 9, 2007 IV. APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law Plr.(.tt:IaQ~'Il.. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William P. Edwards, Councilman SECONDER: Albert Krupski Jr., Councilman AYES: Krupski Jr., Edwards, Ross, Wickham, Evans, Russell Generated October 12,2007 Page 32