RESOLUTION OF ADOPTION OF A LOCAL LAW AMENDING THE ZONING LAW TO ADD A DEFINITION AND STANDARDS FOR WATERFRONT FACILITIES AND ADD A NEW §6-616 WITH RESPECT TO SETBACKS FOR BUILDINGS, STRUCTURES AND IMPERVIOUS SURFACES ON WATERFRONT PROPERTIES.
WHEREAS, Board of Trustees of the Village of Dering Harbor have proposed a local law amending the Zoning Law to add a definition and standards for waterfront facilities and add a new §6-616 with respect to setbacks for buildings, structures and impervious surfaces on waterfront properties; and
WHEREAS, a public hearing was held on May 11, 2019 and June 8, 2019; and
WHEREAS, by letter dated May , 2019, the Suffolk County Planning Commission considered the proposed local law to be a matter for local determination, and
WHEREAS, the adoption of said local law is considered to be a Type II action under 6 NYCRR §617.5(c), SEQRA and will not have a significant adverse impact upon the environment;
NOW, THEREFORE, BE IT RESOLVED, that Local Law No. 4 of 2019 is hereby adopted as follows:
LOCAL LAW NO. 4 OF 2019
A LOCAL LAW amending the Zoning Law to add a definition and standards for waterfront facilities and add a new §6-616 with respect to setbacks for buildings, structures and impervious surfaces on waterfront properties.”
BE IT ENACTED by the Board of Trustees of the Village of Dering Harbor as follows:
Section 1. Legislative Intent. The surface waters and wetlands associated with Dering Harbor and Greenport Harbor in and adjacent to the Village of Dering Harbor have long been recognized as the Village’s most valuable natural resources. The Board of Trustees of the Village of Dering Harbor finds that it has been a long standing the policy of the Village of Dering Harbor, the surrounding Towns of Shelter Island, Southold, Southampton and East Hampton and the Villages therein, the County of Suffolk and the State of New York to conserve and protect these shared natural resources and the benefits derived therefrom. As part of a comprehensive approach to managing the wetlands and surface water resources of the Village of Dering Harbor, it is integral for the Village to implement protections of its wetlands and surfaces waters consistent with the regulatory protections of other State and local programs and laws. Important elements in such programs include local land use controls governing setbacks and buffers for activities, including site disturbance, grading, filling, planting of fertilizer dependent vegetation, and placement of impervious surfaces, building and structures adjacent to wetlands and water bodies. The New York State Department of Environmental Conservation (“NYSDEC”) requires a minimum 75 foot setback for regulated activities along tidal wetlands (see 6 NYCRR §661.6) and the Suffolk County Department of Health Services (“SCDHS”) requires a setback of 150 feet for new sanitary systems. These setbacks have been universally accepted (outside of New York City) as the minimum necessary to be protective of adjacent wetlands and surface waters. Ordinarily the NYSDEC will review all regulated activities adjacent to the tidal wetlands of the Village, however, the NYSDEC may not assert jurisdiction in all cases, particularly where a property has a functional bulkhead or where the regulated activity is at an elevation of 10 feet or more above mean sea level (see 6 NYCRR §661.4(b)(1)). Lack of jurisdiction by the NYSDEC, however, does not automatically presume that regulated activities on property with a functional bulkhead or above the 10 contour will not impact the wetlands and water resources of the Village. Currently, all buildings and structures on waterfront lots in the “B” Residential District are only required to maintain a 40’ rear yard structural setback (see §6-612).
The Village of Dering Harbor has 27 tax parcels fronting on tidal wetlands, only one of which is in municipal ownership and preserved. Of the remaining 26 parcels, 8 are conforming and 18 are nonconforming with respect to lot area and/or lot width for the B” Residential District. Approximately 20 parcels have bulkheads. Given the number of bulkheads and the elevation of adjacent properties, there are many instances in the Village where the NYSDEC may not assert jurisdiction and establish conditions to assure minimum setbacks and buffers for regulated activities. Currently, no building or structure can be built on a nonconforming lot without special exception approval from the ZBA, but there is no additional oversight required for development on conforming lots. Moreover, the special exception standards that must be reviewed for development on nonconforming lots are focused primarily on the orderly and reasonable use of adjacent properties and there are no standards directed specifically to the protection of the Village’s wetlands and surface waters.
Therefore, consistent with surrounding municipal regulations and the aforesaid public policies to conserve and protect the Village’s wetland and water resources, adequate setbacks and buffers must be required for new buildings, structures, or impervious surfaces, other than a waterfront facility, on properties adjacent to the Village’s wetlands and surface waters. It is the intent of this local law to add a new §6-616 to require on all properties adjacent to the wetlands or surface waters of the Village that all new buildings, structures or impervious surfaces have a minimum setback of 75 feet measured from the upland edge of wetlands as defined and delineated by the NYSDEC where there is no functional bulkhead and 50 feet where there is a functional bulkhead, and that all new sanitary septic systems shall have a minimum setback of 150 feet. In the event the upland edge of wetlands shall be a functional bulkhead, then the setback shall be measured from the bulkhead. Such setbacks are required by the Village Dering Harbor regardless whether the NYSDEC or SCDHS grant approval otherwise. It is also the intent of this local law to establish a definition of a “waterfront facility” and to enhance the existing standards for same set forth in §6-614.
With respect to existing buildings, structures or impervious surfaces, the reconstruction, expansion, enlargement, alteration or modification of a preexisting building, structure or impervious surface not conforming to these setbacks shall be subject to the provisions of §9-900 (Non-conforming Situations), which permits “in-kind” reconstruction of a nonconforming building or structure. Variances to these setbacks may be granted by the ZBA in accordance with the provisions of Article VIII of the Zoning Law and §7-712(b) of the New York State Village Law, which requires that the applicant demonstrate that a grant of the variance shall not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or in the affected area of the Village.
With respect to sanitary septic systems, it is the intent of this law that all new sanitary septic systems shall have a minimum setback of 150 feet from wetlands. This setback for sanitary systems is consistent with surrounding municipal, County and State policies and regulations. The replacement of a septic system in a location less than the required setback would require a variance whereby the ZBA can weigh and balance the benefit to the applicant as weighed against the detriment to the health, safety, welfare and environment of the Village and its water resources. It is recognized that in some instances it may not be physically practical to install a new septic system at the required setback, but the ZBA has the authority to consideration such factors and obtain reasonable mitigation measures including consideration of the installation of new Innovative Alternative On-Site Wastewater Treatment Systems (“I/A OWTS”) now being approved by the SCDHS.
Section 2. Amendment. Subsection 1-106 Definitions of Article 1 of the Zoning Law is amended by adding a new definition for Waterfront Facility as underlined words as follows:
- Waterfront Facility: A bulkhead, pier, wharf, revetment, dock, piling, or similar structure to which a vessel or watercraft may be secured, such building on such structures or contiguous to them used for the storage of equipment and changing of clothes, including a boathouse or bathhouse, and other structures necessary for access to the water from the upland area, including walkways, paths, boardwalk, stairs and steps.
Section 3. Amendment. Section 6-614; Waterfront facilities is amended by deleting strikethrough words and adding underlined words as follows:
Section 6-614; Waterfront facilities
- A waterfront facility, boathouse or bathhouse shall not contain sleeping, cooking or sanitary facilities.
- The floor area of any boathouse or bathhouse shall not exceed one hundred (100) square feet.
- The height of any boathouse or bathhouse wholly or partly seaward of the ordinary high-water line shall not exceed fifteen (15’) feet and no part of any dock, pier or wharf shall be constructed to a height greater than six (6’) feet above the ordinary high water line.
- No boathouse or bathhouse shall be constructed, reconstructed, erected, installed, placed, deposited, expanded, enlarged, altered or modified without special exception permission from the Zoning Board of Appeals.
Section 4. Amendment. Article VI of the Zoning Law is amended by adding a new §6-616 as underlined words as follows:
Section 6-616; Setbacks for Development on Waterfront Lots
No building, structure, or impervious surface, other than a waterfront facility, shall be constructed, reconstructed, erected, installed, placed, deposited, expanded, enlarged, altered or modified on a waterfront lot adjacent to wetlands or surface waters unless said building, structure and/or impervious surface shall have a minimum waterfront setback measured from the upland edge of wetlands as defined and delineated by the New York State Department of Environmental Conservation (“NYSDEC”) of 50 feet where there is a functional bulkhead and 75 feet measured where there is no functional bulkhead, and all new sanitary septic systems shall have a minimum setback of 150 feet. In the event the upland edge of wetlands shall be a functional bulkhead, then the aforesaid setback shall be measured from the bulkhead. Such setbacks are required by the Village Dering Harbor regardless whether the NYSDEC or SCDHS grant approval otherwise.
Section 5. Authority. The proposed local law is enacted pursuant to Village Law §§7-700 & 7-708 and Municipal Home Rule Law §§10(1)(i), 10(1)(ii)(a)(11), 10(1)(ii)(a)(12), and 10(1)(ii)(e)(3).
Section 6. Severability. If any section or subsection, paragraph, clause, phrase, or provision of this law shall be adjudged invalid or held unconstitutional by any court of competent jurisdiction, any judgment made thereby shall not affect the validity of this law as a whole, or any part thereof other than the part or provision so adjudged to be invalid or unconstitutional.
Section 7. Effective Date. This local law shall take effect upon filing with the Secretary of State pursuant to Municipal Home Rule Law.
AND BE IT FURTHER RESOLVED, that the Village Clerk is hereby authorized and directed to publish the following Notice of Adoption:
NOTICE OF ADOPTION
PLEASE TAKE NOTICE that after public hearing was held on May 11, 2019 and June 8, 2019, the Board of Trustees of the Village of Dering Harbor at their meeting of June 8, 2019 adopted LOCAL LAW NO. 4 OF 2019 as follows: “A LOCAL LAW amending the Zoning Law to add a definition and standards for waterfront facilities and add a new §6-616 with respect to setbacks for buildings, structures and impervious surfaces on waterfront properties.”
Copies of the adopted law are on file in the Village Hall, Tuesdays and Thursdays, from 9:00 a.m. to 12:00 noon, or by appointment, and on the Village’s website.
BY ORDER OF THE BOARD OF TRUSTEES
VILLAGE OF DERING HARBOR, NEW YORK