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HomeMy WebLinkAboutAcceptance of Policies for Submission to NYS DOS MARTIN D. FINNEGAN TOWN ATTORNEY martin.finnegan@town.southold.ny.us JENNIFER ANDALORO ASSISTANT TOWN ATTORNEY jennifer.andaloro@town.southold.ny.us LORI M. HULSE ASSISTANT TOWN ATTORNEY lori.hulse@town.southold.ny.us SCOTT A. RUSSELL Supervisor Town HallAnnex, 54375Route 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 RECEIVED Southold Town To: From: Date: Subject: MEMORANDUM Members of the Town Board Jennifer Andalom, Assistant Town Attorney April 30, 2010 LWRP/Acceptance of Policies for Submission to NYS DOS If you recall, the Town Board has requested that the DOS amend the LWRP Narrative to delete references to specific dredge window dates within the document. The DOS has modified the Narrative to that extent and has made additional changes to reflect new designations of areas within the Town, including Goldsmith's Inlet & Beach, Pipes Cove Creek and Moore's Drain. This matter was last discussed at the Mamh 23, 2010 Town Board meeting where the Town Board requested review and comments from the LWRP Coordinating Council. Attached please find the LWRP Coordinating Council's comments for your review and consideration. Going forward, the Town Board should take one of the following steps: (i) (ii) accept the LWRP Coordinating Council's comments as is and direct this office to present them to the Department of State (DOS) for consideration; accept the LWRP Coordinating Council's comments with modifications and direct this office to present them to the DOS for consideration; (iii) reject the LWRP Coordinating Council's comments and adopt other comments; or (iv) table the LWRP Narrative Amendments to some later date. Please advise if the Board would like to place this matter on the next Agenda. JNIk Enclosure cc: Ms. Elizabeth A. Neville, Town Clerk (w/encl.) 2 Page 1 of 3 Krauza, Lynne From: Andaloro, Jennifer Sent: Tuesday, April 27, 2010 11:36 AM To: Krauza, Lynne Subject: FW: LWRP CC Comments on LWRP Amendments Jennifer Andaloro Assistant Town Attorney Town of Southold 54375 Route 25 (Main Road) P.O. Box 1179 Southold, NY 11971-0959 Office: (631) 765-1939 Fax: (631) 765-6639 From: Sepenoski, .John Sent: Monday, April 05, 2010 3:37 PM To: Finnegan, Hartin; Andaloro, ,jennifer Cc: (sandeeshoes@verizon.net); Al Krupski; Harris, Peter; Ken Schneider; Martin Sidor (S[DOR@optonline.net); HcHahon, -]ames; Richter, .]amie; Russell, Scott; Sepeneski, ,john; Terry, Hark; Cooper, Linda; Standish, Lauren Subject: LWRP CC Comments on LWRP Amendments Martin & Jen, The LVVRP Coordinating Council would like to make the following comments on the proposed amendments to the LVVRP scheduled for the April 6th meeting concerning the NYS DOS Significant Fish and Wildlife Habitats, Essentially we are removing the references in the habitat narratives to dredging windows and replacing them with language that directs the reader to the NYS DOS web site or the DEC office in Stony Brook for details on the windows. In addition we are updating several of the narratives based on changes made by DOS since the LVVRP was adopted and adding two additional narratives for Significant Habitats that were adopted after the adoption of the LWRP. As we know from prior research the dredge windows are highly unlikely to change because this would require a science based study to change them and multiple such studies have already been conducted that do not support any changes. However the rest of the narratives are likely to change as evidenced by the numerous changes and additions noted above. In short the LVVRP will now be silent on information unlikely to change but explicitly list information that is likely to change. So should we consider simply referring the reader elsewhere for the entire narrative? Or at least include language indicating that the intent is to follow the latest versions of the narratives as well as any subsequent narratives created for new habitats available from DOS/DEC rather than have to go through this process again when any changes are made? If DOS updates a narrative or approves a new one and the LWRP has not be updated what does it mean? Do we use our LWRP until it is updated or do we have to use what DOS approved anyway? If the latter then wouldn't it make sense to add the reference to the latest versions available from DOS as noted above? An issue with the two additional designated narratives is that they do not include the introductory LVVRP paragraph explaining what they are and referencing the map depicting the areas as other narratives in the LVVRP do. This paragraph should be added. The introductory paragraph for the Fishers Island reach does not include a reference to Map 11-14 which shows the significant habitats as the other reaches (except for the two being added) do. This should be added. Map 11-14 should be updated to include the two additional designated habitats and any boundary changes for the others. 4/27/2010 Page 2 of 3 The introductory paragraph noted above should include the latest revision date of the narratives instead of or in addition to the odginal dates of the narratives. Based on some of the issues identified by the Council below for the two narratives being added and the short period of time for comments to be submitted the Council recommends a more formal review of all of the habitat narratives and maps to insure the narratives and maps are accurate. The following comments are specific to the two additional habitat narratives being added. The Council acknowledges that these narratives have already been adopted by DOS and therefore these comments are not strictly issues related to the proposed LWRP amendments. However they are issues that should be dealt with even if this means having DOS update the narratives. Goldsmith Inlet and Beach 1. The narrative states that "The Town of Southold maintains a public beach at Goldsmith Inlet..." If the intent ' of this is to indicate that this is a typical bathing beach with facilities this is incorrect. The public bathing beaches within this Significant Habitat ara located at Kenney's and Horton's aka McCabe's Beaches to the east. While the beach at Goldsmith Inlet is open to the public it is not a bathing beach. 2. The narrative states that "Recreational uses of Goldsmith Inlet and Beach are concentrated in the area around Goldsmith Inlet..." This is incorrect. The recreational uses within this significant habitat are distributed throughout the area and if anything are more concentrated in the eastern section containing Kenney's Beach, McCabe's Beach and Peconic Dunes Camp especially dudng the summer. 3. The narrative states "Any dredging activities should be undertaken dudng the fall and winter, within the dredge windows identified in the New York State Department of State designated..." If we are deferring to the NYSDOS windows, why identify/highlight fall and winter, but instead simply state "Any dredging activities should be undertaken within the dredge windows identified in the New York State Department of State designated..." in case something changes in their opinion for timing. Or point the reader to the latest DOS narratives as suggested above. 4. Kenney is spelled incorrectly. 5. Since this narrative was adopted the Town and County preserved the former Bittner property. The map for this Significant Habitat excludes the area on the former Bittner property that contained the house, pool and bulkhead. The Town is in the process of removing the house, pool and bulkhead and will be restoring this area to its natural state. Therefore the boundary should be updated to include this section of the former Bittner property. 6. The narrative should be updated to include the fact that the former Bittner property is now a preserve allowing passive recreational access. 7. Additional comments and questions related to the authorship and language used in the narrative were received. The Chair of the LWRP CC responded to some of these questions explaining that these narratives were written by DOS and that the Town can request changes provided they have objective information supporting the changes. These comments are included in their entirety below as part of the Council's comments for the Town Board and attorneys to review in case they would like to provide additional explanations. Pipes Cove Creek and Moore's Drain There are several issues (some of which were brought to the Town Board's attention previously) with the boundary of this Significant Habitat as follows: ]. The boundary arbitrarily splits two significant Town nature preserve holdings formerly known as the Reese and Stackler properties. The boundary in this area should be adjusted to include these parcels in their entirety as the habitats in the areas excluded are the same as other areas included within the Significant Habitat. 2. The boundary splits Skipper Horton Park in two places. Skipper Horton Park includes a building and access to private lots in this area so it may be logical to not include the entire park in the Significant Habitat but the boundary here should be reviewed to clarify the intent. 3. The boundary splits three County owned passive open space parcels (1000-53.-1-4, 1000-44.-4-3.1 & 4/27/2010 Page 3 of 3 1000-53.-1-9). The boundary in these areas should be adjusted to include these parcels in their entirety since the areas excluded include the same habitats as areas included. It is unclear what the intent of the boundary in the area off of Albertson Lane is as it cuts through some developed areas. This is probably due to the scale at which the map was created. This section of the boundary should be reviewed in more detail to cladfy the boundary and its intent. The Town and County are currently in contract to purchase another approximately 29 acres of passive open space (1000-53.-1-1.3 & part of 1000-53.-1-1.2) about half of which is within the current boundary. Since the habitats in the sections of these parcels that are currently excluded from the Significant Habitat are the same as other habitats included the boundary should be adjusted in this area to include the areas to be preserved in their entirety. Please feel free to contact the Council should you require any clarifications or have any questions. John Sep Chair, LWRP CC Written comments received from LWRP CC member John Betsch (Item 7 on Goldsmith Inlet and Beach above): Reading through the red noted areas, I only have three comments and/or questions: 'If DOS updates a narrative or approves a new one and we haven't done this what does it mean. Do we use our LWRP until it is updated or do we have to use what DOS approved anyway?- John Sep" This is an important question which I belio¥o needs legal opinion of the Town Attorney regarding the ramifications - depending on the process adopted - and given before whatever process chosen is adopted Due to my naivete, it is not clear to me where some of the wording comes from. e.g. Looking at the first changed section: Goldsmith Inlet and Beach: who provides the "Fish andwildl¢, vcdues:" wording? Is it lifted from another document? Is it the Town's empirical opinion or provided to the Town by some agency, and info which cannot be questioned or doubted? The wording of" Alteration of tidal patterns in Goldsmith Inlet Pond, by modification of inlet configurations or other means, would ha~;e major impacts on the fish and wildlife communities present bothers me as it could have significant impact on others issues of Goldsmith Inlet. This type of wording also does not seem to appear in any section anywhere else? "Any dredging activities should be undertaken during the tall and winter, within the dredge w'mdows identified in the New York State Department of State designated..." If we are deferring to the NYSDOS windows, why identify/highlight fall and winter, but instead simply state Any dredging activities should be undertaken within the dredge wiodows identified in the New York State Department of State designated.., in case something changes in their opinion for timing regards john betsch 4/27/2010