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Home My WebLink About1000-70.-6-33OFFICE LOCATION: Town Hull Annex 54375 State Route 25 Main Rd. & Youngs Ave. Southold, NY 11971 LOCAL WATERFRONT REVITALIZATION PROGRAM TOWN OF SOUTHOLD MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971 Telephone: 631 765-1938 Fax: 631 765-3136 Jim King, President Town of Southold Board of Trustees From: Scott Hilary and Mark Terry, LWRP Coordinators Re: Chapter 268, WATERFRONT CONSISTENCY REVIEW Wetland Permit for ROSA HODGSON SCTM#70-6-33 En-Consultants, Inc. on behalf of ROSA HODGSON requests a Wetland Permit to emove and replace (in-place) existing dock, consisting ofa 6'X 87' fixed pier, 6'X 24' fixed "L" section, 4.5'X 33' step-down platform, and a 3'X 14' ramp and 6'X 20' float secured by (2) 8" pilings; remove and replace (in-place) 9'X 11' pervious patio and 4'X 8' steps to dock; construct approx. 774 lf. of vinyl bulkhead in place of existing timber bulkhead; backfill bulkhead with approx. 75 cy. of clean sand to be trucked in from an upland source; and establish a 10' non-mn*buffer adjacent to the bulkhead. Located: 4845 Pine Neck Rd., Southold. SCTM#70-6- 33 THE FOLLOWING SECTION ADDRESSES THE PROPOSED DOCK: The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of Southold 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 our recommendation that the proposed action is EXEMPT pursuant to § 268-3. MINOR ACTIONS -- Include the following actions, which are not subject to review under this chapter: Replacement, rehabilitation or reconstruction ora structure or facility, in kind, on the same site, including upgrading buildings lo meet building or fire codes', except for structures in areas designated by the Coastal Erosion Hazard Area (CELIA) law where structures may not be replaced, rehabilitated or reconstructed without a permit; THE FOLLOWING SECTION ADDRESSES THE PROPOSED BULKHEAD REPLACEMENT: The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of Southold 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 our recommendation that the proposed action is EXEMPT pursuant to § 268-3; provided that a silt boom is installed prior to the replacement of the bulkhead that will retain all suspended sediments within the immediate pro[ect area pursuant to § 268-3 GG. MINOR ACTIONS -- Include the following actions, which are not subject to review under this chapter: GG. Replacemenl, rehabilitation or reconstruclhm q fa slructure or./i~cilily, in kind, on the same site, including upgrading buildings to ineel building or.fire code.s exce]iI fi)r structures itl areas de.w~mated b), the Coastal Erosion Hazard Area (CEHA) Icon, where structures mqF nol be rep]aced, rehabilitated or reconslrucled wilhout a permit; Bulkhead to replace existb~g bulkhead on the applicant's proper(v in the same location with a .sill curlain e/nt)loyed during construction: and [Added 6-6-2006 by L.L. No. 7-2006] If the action is approved the following best management practice (BMP) is recommended: 1. Require a minimum 20' non-turf buffer landward of the bulkhead. Figure #1 Existing dock and bulkhead. The location of the proposed dock and bulkhead replacement is next to Jockey Creek Sandpit, a Significant Coastal Fish and Wildlife Habitat (SCFWH) recognized by the Town as worthy in protecting. Nesting shorebirds inhabiting the Jockey Creek Sandspit are highly vulnerable to disturbance by humans, especially during the nesting and fledeline period (March 15 through August 15). If the actions are approved (dock and bulkhead replacement) the following best management practice (BMP) is recommended: That any activity associated ;vith the replacement of a dock aud/or bulkhead occurs outside of the breeding, nesting and fiedging period (March 15 through August 15). Pursuant to Chapter 268, the Board of Trustees shall consider this recommendation in preparing its written determination regarding the consistency of the proposed action. OFFICE LOCATION: Town Hall Annex 54375 State Route 25 Main Rd. & Youngs Ave. Southold, NY 11971 LOCAL WATERFRONT REVITALIZATION PROGRAM TOWN OF SOUTHOLD MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971 Telephone: 631 765-1938 Fax: 631 765-3136 From: Date: Re: Jim King, President Town of Southold Board of Trustees Scott Hilary and Mark Terry, LWRP Coordinators August 20, 2008 Chapter 268, WATERFRONT CONSISTENCY REVIEW Wetland Permit for ROSA HODGSON SCTM#70-6-33 En-Consultants, Inc. on behalf of ROSA HODGSON requests a Wetland Permit to remove and replace (in-place) existing dock, consisting ora 6'X 87' fixed pier, 6'X 24' fixed "L" section, 4.5'X 33' step-down platform, and a 3'X 14' ramp and 6'X 20' float secured by (2) 8" pilings; remove and replace (in-place) 9'X 11' pervious patio and 4'X 8' steps to dock; construct approx. 774 Iff of vinyl bulkhead in place of existing timber bulkhead; backfill bulkhead with approx. 75 cy. of clean sand to be trucked in from an upland source; and establish a 10' non-turf buffer adjacent to the bulkhead. Located: 4845 Pine Neck Rd., Southold. SCTM#70-6-33 THE FOLLOWING SECTION ADDRESSES THE PROPOSED DOCK: The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of Southold 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 our recommendation that the proposed action (DOCK REPLACEMENT) is EXEMPT and therefore is not reviewable to Chapter 268, WATERFRONT CONSISTENCY. Preexisting nonpermitted and/or nonconforming structures cannot be replaced in kind without full review and approval by the Trustees pursuant to § 275-11. Policy 6. Protect and restore the quality and function of the Town of Southold ecosystem. 6.3 Protect and restore tidal and freshwater wetlands. Comply with statutory and regulatory requirements of the Southold Town Board of Trustees laws and regulations for all Andros Patent and other lands under their jurisdiction 1. Comply with Trustee regulations and recommendations as set forth in Trustee permit conditions. The applicant must demonstrate that the following dock standards pursuant to § 275-11 Construction and operation standards have been met. § 275-11 Construction and operation standards. Review and approval of dock applications. Before issuing a permit for a dock structure, the Trustees shah consider whether the dock will have any of the following harmful effects: [1] Whether the dock will impair navigation or be located in areas of high vessel traffic or vessel congestion; The existing dock as built exceeds 1/3 the total width of the water body and therefore is not in compliance with § 275-11 Construction and operation standards. Sufficient water depths of 4 to 5 feet are attainable ifa docking structure was to be designed approximately half the length of the existing dock structure. In water. The following standards are required for all in-water operations adjacent lo residential properties. Operations conducted on properties zoned MI or M2 may be given greater flexibil#y in these requirements given the water- dependent nature of their use. (2) Docka (b) Dock locations and lengths. [Amended l O-11-2005 by £.L. No. 17-2005.] [1] No dock shall be erected or extended if, in the opinion of the Trustees, such structure would adversely affect navigation, fisheries, shell fisheries, scenic quality, habitats or wetland areas. Within creek~ and other narrow waterways, no dock length shall exceed 1/3 the total width of the water body. Determination of the length of the dock must include the dimensions of the vessel. [2] Whether the dock will unduly interfere with the public use of waterways for swimming, boating, fishing, shellfishing, waterskiing and other water-dependant activities; [3] Whether the dock will unduly interfere with transit by the public along the public beaches or foreshore; [4] Whether the dock will significantly impair the use or value of waterfront property adjacent to or near the dock; [5] Whether the dock will cause degradation of surface water quality and natural resources; [6] Whether the dock will cause habitat fragmentation and loss of significant coastal fish and wildlife habitats; [7] Whether the dock will result in the destruction of or prevent the growth of vegetated wetlands, seagrasses including eelgrass (Zostera marina) and widgeon grass (Ruppia maritima) or shellfish; [8] Whether the dock will unduly restrict tidal flow or water circulation; [9] Whether the dock will be safe when constructed; [10] Whether the dock will adversely affect views, viewsheds and vistas important to the community; [11] Whether the cumulative impacts of a residential and commercial dock will change the waterway or the environment and whether alternate design, construction, and location of the dock will minimize cumulative impacts; and [12] Whether adequate facilities are available to boat owners and/or operators for fueling, discharge of waste and rubbish, electrical service and water service. Figure #2 Existing dock THE FOLLOWING SECTION ADDRESSES THE PROPOSED BULKHEAD REPLACEMENT: The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of Southold 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 our recommendation that the proposed action (BULKHEAD REPLACEMENT) is CONSISTENT with LWRP policy standards and therefore is CONSISTENT with the LWRP; provided that a silt boom is deployed prior to the replacement of the bulkhead pursuant to § 275-11 and as defined in § 275-2. § 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 ora silt fence, hay bales, wood chip berm and silt booms. The placement of the erosion control structure(s) shah be determined by the Trustees or their designee. Ail intertidal construction and excavation requires the installation of a silt boom that will retain ail suspended sediments within the immediate project area. § 275-2 Definitions; word usage. 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. The deployment of a silt boom will further advance LWRP Policy 5~ Protect and improve water quality in the Town of Southold and Policy 6 Protect and restore tidal and fresh water wetlands. Policy 5 Protect and improve water quality and supply in the Town of Southold. 5.3 Protect and enhance quality of coastal waters. 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. Policy 6. Protect and restore the quality and function of the Town of Southold ecosystem. 6.3 Protect and restore tidal and freshwater wetlands. A. Comply with statutory and regulatory requirements of the SouthoM Town Board of Trustees laws and regulations for all Andros Patent and other lands under their jurisdiction 1. Comply with Trustee regulations and recommendations as set forth in Trustee permit conditions. If the action is approved the following best management practice (BMP) is recommended: 1. Require a minimum 20' non-turf buffer landward of the bulkhead. The BMP recommended above will further advance Policy 5, Protect and improve water quality in the Town of Southold and 6.3 Protect and restores tidal and freshwater wetlands Figure #2 Existing bulkhead. Further~ the location of the proposed dock and bulkhead replacement is next to Jockey Creek Sandpit~ a Significant Coastal Fish and Wildlife Habitat (SCFWH) recognized by the Town as worthy in protecting. 6.2 Protect and restore Significant Coastal Fish and Wildlife Habitats. The 7bwn qf Southold is rich bt habitats that support diverse and often large wildl[[~, po[mlalions, mattv qf which are rtl commercial or recreational value. ]'he importance of these habitats has been recognized through the state designation as Significant Coastal Fish and Wildli, fe Habitats in Soutl?old. These habitats cover the fidl range ¢'habitats typk'al on the East End qf Long lsland and include dunes, beaches, wetlands, islands and open water. ]he Tou,n of SouthoM recognizes the importance qf protecting and enhancing these wetlands and habitats. Nesting shorebirds inhabiting the Jockey Creek Sandspit are highly vulnerable to disturbance by humans, especially during the nesting and fledgling period (March 15 through August 15). If the actions are approved (dock and bulkhead replacement) the following best management practice (BMP) is recommended: That any activity associated with the replacement ora dock and/or bulkhead occurs outside of the critical breeding, nesting and fledging period (March 15 through August 15). The BMP recommended above will fin'ther advance Policy 6.2 Protect and restore Significant Coastal Fish and Wildlife Habitats. If the Agenc¥~ Board of Trustees makes a contrary determination of consistencv~ the Agency shall elaborate in writing the basis for its disagreement with their recommendations Pursuant to Chapter 268 Waterfront Consistency Review. § 268-5. Review of actions. In the event the LFFRP Coortfinator's recommendation is lhat the action is inconsistent with the LWRP, and the agentT makes a contra~ delertnination q] consislen~T, the agency shall ek~borate h~ writing the basis jbr its disagreement u, ith the recommendation and state lhe manner and extenl to which the action is consistent u,ilh lhe L WRP polioT standard~. Pursuant to Chapter 268, the Board of Trustees shall consider this recommendation in preparing its written determination regarding the consistency of the proposed action. DAVID A. PATERSON GOVERNOR STATE OF NEW YORK DEPARTMENT OF STATE ONE COMMERCE PLAZA 99 WASHINGTON AVENUE ALBANY, NY 12231-0001 LORRAINE A. CORTI~S-VAZQUEZ SECRETARY OF STATE September 26, 2008 Mr. Robert E. Herrmann for Rosa Hodgson C/O EN-Consultants 1319 North Sea Rd. Southampton, NY 11968 Re: F-2008-0592 U.S. Army Corps of Engineers/NY District Permit Application NYS DEC Region 1 Remove and Replace existing dock and bulkhead 4845 Pine Neck Road, Touwn of Southold, Suffolk County File Closed Dear Mr. Herrmann: You have not provided a response to our requests for necessary information and data regarding the above-referenced activity (see attachment), therefore we cannot begin our review of the proposed activity and the federal consistency certification that you submitted for it, pursuant to 15 CFR Part 930, Subpart D. Since the requested necessary data and information has not been provided to us in a timely manner, we are closing the file regarding your consistency certification for this activity. This action on the part of the Department of State is not and should not be considered or otherwise construed to be the Department's concurrence with or objection to the above- referenced proposal pursuant to 15 CFR Parts 930.62 or 930.63. Without the Department of State's concurrence with the consistency certification for this proposed activity, the consistency provisions of the federal Coastal Zone Management Act prohibit the U.S. Army Corps of Engineers or other federal agencies from authorizing this proposal. lfyou wish to resubmit this proposed activity and a consistency certification for it, please provide the Department of State with a new Federal Consistency Assessment Form and certification (FCAF), a complete copy of a federal application for authorization, and complete maps, site plans, sketches, photos, and a written description of the proposal, together with the necessary information we requested. When communicating with us regarding this matter, please contact us at (518) 474-6000 and refer to our file # F-2008- 0592. COE/NY District - Stacey Jensen NYSDEC/Region I- Roger Evans Town of Southold LWRP- Scott Hilary Sincerely~ Matthe~l P. Maraglio CPES, C.- Coastal Resources Sped'i~/(ist Consistency Review Unit Division of Coastal Resoti~r~,e'k,'\ 9 Sept. 2008 James King, President Southold Town Trustees PO Box 1179 Southold NY 11971-0959 Dear Mr King: We wish to bring to your attention that the trustees cannot legallY ap~r0ve the application of Rosa Hodgson, 4845 Pine Neck Rd, Southold, Tax Map 70;6-32 as currently submitted. The app cat on s to replace 774 ft~ Of bulkhead in. place,alengwith the dock and add 85 cyds of fill. However, on 30 August, Southolders for Sovereign Rights inspected the property and found that it is currently in violation of the Public Trust Doctrine. Granting the application would perpetuate the illegality and, moreover, might not represent best management practices. Violations of the Public Trust Doctrine and Town Codes The present bulkhead is footed below mean Iow water and thus confiscates public land. The addition of 85 cyds of fill implies a landfill operation. The Trustees cannot divest themselves of jus publicum title to public land unless it can be clearly established that the action could be reasonably considered to be "for the good of all the public" ( e.g, Orient State Park, federal navigation aids). Furthermore, such action requires special legislation. Therefore, this property is burdened by the Public Trust Doctrine, as are the Trustees in the stewardship of town lands. The present bulkhead adjacent to the Pine Neck Rd public launching ramp is 6 ft in vertical height at the mean Iow water line and topped by a cyclone fence to mlw. The fence violates Town Code 275. A.11 (4) Fences. The right of public lateral access along the shore is prevented along the entire length of the bulkhead unless the innocent beach stroller is equipped with a ladder and is athletic. It is curious that the Trustees recognize the right of public access pertaining to docks and groins by requiring "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," but the town code is strangely silent about what is called for in the Public Trust Doctdne - a public passing way along a bulkhead footed below mean high water. A passing way along the entire bulkhead is lawfully required of all bulkheads in Southold Town footed below mean high water which must include stairs or ramps to mount the bulkheads. The existing dock which leads from the bulkhead does not allow public passage violating Town Code Chap. 275. C.(2) Docks.(a)[9]. A Suggested Best Management Practice This property which faces Southold Bay at the inlet to Jockey Creek is at the terminal end of a littoral cell that is transporting sediment eroded from beaches to the northeast, and depositing it at the applicant's front door as a sand island of 3.2 acres. The applicant has lost the benefit of this natural accretion because wave energy is reflected off the vertical bulkhead wall to scour out the shoreline at the foot of the bulkhead creating a deep channel which separates the applicant's property from the sand island. If the applicant removed the bulkhead or replaced it so that it was footed above mean high water, natural wave action would cause the sand island to gradually migrate and attach to her properly. The applicant would gain title to the beach above mhw by ripadan rights of accretion. How would the public benefit? Public lateral access along the shore would now exist from the launching ramp. Wave action would be absorbed by the natural slope of the forming beach rather than being reflected off the hardened shoreline to agitate and stir the waters of the creek. An intertidal habitat would be re-established which if wave action is not too severe might even allow a saltmarsh to exist. Sincerely, Howard Meinke Rosemary Gabriel Armand DeLuca Heather Cusack Keith McCamy Arden Scott Carol Simons Lillian Ball Poppy Johnson Maggi Travis Doug Hardy Edwin Smith Rob Buchanan (howardrmeinke@aol.com) (rosemary.gabriel@verizon.net) (spatdad@optonline.net) (hcusack@suffolk.lib. ny. us) (keith.mccamy@verizon. net) (keith.mccamy@verizon.net) (clsimons@@optonline.net) (ballstudio~thing.net) (pjoh nson@suffolk.lib, ny. us) (magpitr @mac. com) (chardy@peconic.net) (edwinasmith@optonl ine. net) (Robbuc@mac. com) Rick and Linda Kedenburg (kedenbird@optonline. net) Cc: Town Attorney Supervisor Russell Town Board LWRP CC Mark Terry Scott Hilary