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How Big a Buffer?


“PH 12/1/09 7:35 Pm – Minor Exempt – WCRL”

This is exactly how a Public Hearing for a new Local Law regarding an amendment exempting minor actions of the – WCRL [Waterfront Consistency Review Law] appeared on the December 1st Town Board meeting agenda on the Town’s website. In theory, this should have been a hearing for a reduction/simplification of those actions/property changes that need to be reviewed under the LWRP (Local Waterfront Revitalization Program). As noted in the agenda packet, the purpose of this new Local Law, in part states: “It is intended that, by making additions to the “minor actions” exempt list, certain actions that by their nature will not have an adverse effect on the coastal area and resources will not require a review under this law, which will result in a more efficient review process.”


A printout of proposed changes apparently was sent to “selected members” of the LWRP Coordinating Council last October. Unfortunately, I was not sent those changes even though I am a member of the LWRP Coordinating Council. Upon learning that, I requested a copy but have never received it.

What was to be a LWRP “simplification” and “expansion of exempt actions,” appears to impose yet another whole set of detailed and complex rules on LWRP review. It was billed as taking things out of LWRP review, but imposes more rules and “standards” to follow. While many of the items noted in the presented local law, were presented to hypothetically exempt actions from LWRP review to make the application process easier, there were significant loose/ambiguous wording issues. Two specific items of concern were the Buffer Tables presented, and the inclusion of an undefined term: “scenic view shed important to the community.”

It has been pointed out to me that the buffer table places minimum standards for LWRP “consistency.” As you might recall from the Town Board’s attempt to regulate mandatory-sized buffers in the wetland regulations (which was defeated) – the mandatory sizes took the discretion out of the Trustees’ hands. The mandatory-sized buffers become the rule rather than the goal, and limited the Trustees’ discretion to account for actual site conditions. If the LWRP law includes mandatory-sized buffers, and the property cannot support the mandatory-sized buffer, the project is now “inconsistent.” Most waterfront parcels are “pre-existing and nonconforming as to size or setbacks.” When a structure is less than 100 feet from the tidal wetlands, it receives an “LWRP inconsistency” determination. The buffer adds one more layer of “inconsistency,” without a solution. If there is no hard and fast rule on buffer size, then any buffer, arguably, mitigates the technical “inconsistency” of the existing setbacks.

Historically, the Trustees at one time regulated setbacks (100′) from the mean high tide mark; then the regulations changed the jurisdictional setback of the Trustees to 100 feet from the tidal wetland line. Wetlands are, ecologically, “buffers.” The wetlands provide the filtration of contaminants before they enter a water body. Now, not only do you have a setback of 100 feet from the edge of wetlands, the mandatory buffer creates an additional buffer beyond the wetlands. The larger the buffer the more of your property is “unusable.” Typically, the property owner who goes in for permits to make improvements loses his yard, while his neighbor still has a lawn to the water’s edge. Eventually, all properties will manage their properties responsibly by adding some vegetative buffer to filter contaminants before they enter the water
bodies. The most significant protection is limiting roof run-off. That is already in the Town Code.

At the hearing, Peggy Dickerson stated that more standards based on “science” makes it easier for applicants, but then Mark Terry stated that he and the LWRP coordinator researched buffers across the country and “it is an in-exact science.” Confusing! Both Trustees Dave Bergen & Jill Doherty and Councilman Krupski had significant issue with the Buffer Tables presented (paragraph KK of the proposed Local Law). The concern that I see is that once a table is in print, it becomes a “standard” and even though the Trustees may ultimately decide differently on an application, it implies that it is the standard to be followed.

The Supervisor’s frustration with the hearing was evident in his dialogue with Al Krupski, who had questioned several facets of the presented local law. Councilman Krupski who is, as I am, a member of the LWRP Coordinating Council (which last met over five months ago on July 2nd), specifically questioned the definition of and the enforcement of the term “scenic view shed important to the community.” He was, as we all should be, not happy with Mark Terry’s “trust me” inference in his interpreting an undefined term in his LWRP consistency review of an application.

After protracted discussion, the hearing was closed, the vote tabled, and Local Law will eventually go back to the Code Committee for another review. It is not clear whether another Public Meeting will be required. We’ll keep track!

Everyone might want to look at the December 1st Town Board meeting video to form their own opinion at http://southoldtown.iqm2.com/citizens/?AgencyName=SoutholdTown Click on the video camera icon for 12/1/09 which appears on the right.

It is also interesting to note that apart from one person, all the “public input” at the meeting came from Town officials (D. Bergen, M. Dickerson, J. Doherty and M. Terry). Apparently, there is no consensus regarding implementation of this local law.

It back to drawing boards for the “Local Law in relation to Amendments to the Minor Exempt Actions List of the Waterfront Consistency Review law.”

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