§ 81-14. Standards for approval: Category B permit applications., Chapter 81. Wetlands and Waterways, Land Use Legislation, Code of Ordinances, Brookhaven

Standards for residential and commercial docks.

(1)

The standards for a residential dock shall be as follows:

(a)

All lots requesting a permit for a dock must have a riparian right to a navigable waterway as defined in § 81-3. Parcels located on a non-navigable waterway may request a dock for nonpowered watercraft access. The standards of approval for this type of dock will be determined by the Director of the Division of Environmental Protection.

(b)

All areas except the Port Jefferson Harbor Complex: In no case shall the dock length be in excess of the minimum length necessary to reach a water depth of three feet below the apparent low water line [For this provision only, the dock shall exclude pilings not attached to the fixed dock or any floating dock(s).], but in any event not to exceed 150 feet in length, or exceed 15% of the width of the waterway, whichever of these provisions is less;

(c)

Port Jefferson Harbor Complex only: In no case shall the dock length be in excess of the minimum length to reach a water depth of three feet below the apparent low water line [for this provision only, the dock shall exclude pilings not attached to the fixed dock or any floating dock(s).], except in cases where the vessel, because of its draft, requires deeper water and adequate depth is within 10 feet of the minus three-foot below the apparent low water line (-3' ALWL), the dock may be extended 10 feet from this point, but in any event may not exceed 150 feet in length, or exceed 15% of the width of the waterway, whichever of these provisions is less;

(d)

Only one residential dock may be constructed on a residential lot that has a riparian right;

(e)

A residential dock and any part thereof, or any vessel tied to a dock, may not be located within or impinge upon that area located within 10 feet of the seaward extension of any property line;

(f)

No more than two boats may be berthed, tied or secured to any residential dock;

(g)

The width of a catwalk, dock or ramp leading to a floating dock may not exceed four feet. All portions of a catwalk or fixed dock that traverse any vegetated tidal or freshwater wetland must utilize open-grate decking as specified by the Director or designee of the Director;

(h)

The width of any single float shall not exceed eight feet in width or 20 feet in length and shall be secured or installed in such a manner that the float shall maintain a six-inch separation from the bottom of the floating dock to the bottom of the water body at any time during the tidal cycle. No more than two floats may be incorporated into a residential dock unless permitted by a previously approved wetlands and waterways permit;

(i)

A dock shall not be permitted in areas of high vessel traffic or vessel congestion where there is a likelihood that the dock will significantly jeopardize public safety or create a public nuisance;

(j)

A dock shall be designed and sited so as to minimize habitat loss and/or fragmentation, and to not impinge or impair upon access to shellfish resources;

(k)

A dock shall be designed and sited so as to not hinder public access to public trust lands and surface waters; and

(l)

A dock and its associated floats and piles shall have adequate lighting and markings.

(2)

The standards for commercial docks shall be as follows:

(a)

In no case shall the dock length, excluding that portion landward of the apparent high water line, be in excess of 150 feet nor exceed 40% of the width of the waterway, whichever is less;

(b)

The width of a catwalk or dock may not exceed eight feet and must be elevated a minimum of four feet above the apparent high water line, and a minimum of four feet above grade when traversing any tidal or freshwater wetlands;

(c)

The width of any single float may not exceed eight feet and shall be secured or installed in such a manner that the float shall maintain a six-inch separation from the bottom of the floating dock to the bottom of the water body at any time during the tidal cycle;

(d)

All marinas that provide fuel to private vessels must also provide pump-out facilities for vessel sanitary waste;

(e)

No dock shall be permitted in areas of high vessel traffic or vessel congestion where there is a likelihood that the dock will significantly jeopardize public safety or create a public nuisance;

(f)

A dock shall be designed and sited so as to: minimize habitat loss and/or fragmentation, and not impinge or impair access to shellfish resources;

(g)

A dock shall be designed and sited so as to not hinder public access to public trust lands and surface waters;

(h)

A dock and its associated floats and piles shall have adequate lighting and markings; and

(i)

The principals or corporate officers of any commercial dock placed above Town-owned underwater land shall either enter into a lease agreement with the Town of Brookhaven (if applicable) or provide to the Town Clerk, on a yearly basis, an affidavit of indemnity and agreement to provide insurance in such form as required by the Town of Brookhaven Town Attorney or her/his designee.

(3)

The Town shall have the right to seek removal of any dock constructed without a permit described herein or built in violation of these standards and/or restrictions established by a permit issued by the Director or the designee of the Director or the Town Board of the Town of Brookhaven.

(4)

Municipal docks are not required to conform to the regulatory dimension of a commercial or residential dock described herein.

(5)

When a bulkhead is used as a residential docking facility:

(a)

Only two boats may be tied within the confines of the seaward extension of the property lines;

(b)

No vessel or mooring pile may be located within 10 feet of the seaward extensions of the property boundary;

(c)

When two bulkheads meet at an angle less than 180° and the bulkhead is used as a mooring facility, the area of control for each adjacent property owner will be determined by a line drawn at the median of the angle formed by the two bulkheads. No vessel, dock or mooring pile will be permitted outside the property owners area of control; and

(d)

If tied perpendicular to the bulkhead, no vessel or mooring pile may protrude into the waterway more than 15% of the total width of the waterway.

Standards for shore protection devices:

(1)

The standards for structural shore protection devices constructed along the South Shore of the Town of Brookhaven shall be as follows:

(a)

New bulkheads or other structural shore protection devices shall be prohibited except in those cases that the Director of Environmental Protection deems the structure or device necessary in order to protect public health and safety or to prevent significant damage to personal or real property and must be located at or above the apparent high water mark;

(b)

New or reconstructed bulkheads or any other structural shore protection device may not be constructed upon the underwater lands of the Town of Brookhaven unless, at the discretion of the Town Board of the Town of Brookhaven, an encroachment agreement is first issued;

(c)

No bulkhead shall be constructed, as measured from the apparent high water mark to the top plate or sill of the bulkhead, with a height greater than three feet; and

(d)

Upon completion of the construction of the shore protection device, a ten-foot-wide buffer area, unless a larger buffer area already exists by covenant or previous permit restriction, which does not contain turf grasses or nonindigenous vegetation, must be established landward of the device.

(2)

The standards for structural shore protection devices along the North Shore of the Town of Brookhaven, including those areas surrounding the North Shore Harbors, shall be:

(a)

(b)

In locations where there is a substantial bluff or beach scarp, new bulkheads or structural shore protection devices must be constructed no further seaward than 10 feet from the existing toe of the bluff, unless otherwise permitted by the Director or his designee;

(c)

New or reconstructed bulkheads or other structural shore protection devices may not be constructed upon beaches or the underwater lands of the Town of Brookhaven unless, at the discretion of the Town Board of the Town of Brookhaven, an encroachment agreement is first issued;

(d)

No bulkhead shall be constructed where the top plate or sill of the bulkhead exceeds an elevation of 13 feet as measured in Town, USGS or NGV datum;

(e)

Upon completion of the construction of any shore protection device, all denuded or eroded areas landward of the device shall be stabilized with coastal tolerant vegetation; and

(f)

New bulkheads or other structural shore protection devices facing Long Island Sound must install stone armoring, consisting of one ton stone (minimum weight) with a two stone base and two stone height, along the entire length, or if determined by the Director or the designee of the Director, must, at minimum, be installed 20 feet of either side of a point of intersection between two bulkheads or a bulkhead face and a return where the angle created is not equal to 180°.

(3)

Nonstructural shore protection devices.

(a)

Nonstructural shore protection devices must be installed at or above the apparent high water line. For applications that are considered demonstration projects by the NY State Department of Environmental Conservation (DEC) and are issued DEC tidal or freshwater wetlands permits for nonstructural shore protection devices below the apparent high water line, the Director, at his discretion, may approve such application without mitigation measures indicated in § 81-15I.

(4)

The Town shall have the right to seek removal of any shore protection device constructed or installed without a permit described herein or built in violation of these standards and/or restrictions established by a permit issued by the Director or the Town Board of the Town of Brookhaven.

Standards for development: residential structures and additions thereto.

(1)

The buffer zone and structural setback requirements for the construction of primary residential structures on undeveloped land within the jurisdictional area of this code shall be as follows:

(a)

New residential structures constructed on lots with subdivisions or land divisions approved on or after August 11, 2003, must provide a minimum one-hundred-twenty-five-foot setback for all primary and accessory structures, excluding driveways and access roadways, landward of the wetlands boundary and a one-hundred-foot buffer zone landward of the wetland boundary;

(b)

New residential structures constructed on lots with subdivisions or land divisions approved before August 11, 2003, must provide a minimum seventy-five-foot buffer area landward of the wetland boundary; with the following exceptions:

[1]

When the wetland area is located, in relation to the proposed primary structure, in or adjacent to the front or side yard, the natural buffer area required for any primary or accessory structures (excluding driveways and utility access) will exceed, to the greatest extent practicable, the setback requirements established for a Category A permit application in § 81-9.

[2]

When the wetland area is located, in relation to the proposed primary structure, in or adjacent to the rear yard, and the shortest distance from the front property line to the wetland area is less than 175 feet, then the greatest extent of the buffer zone will be established minimally from the most landward wetland point a distance equal to 70% of the difference of the linear distance measured from the front property line to the nearest point of wetland and 70 feet. In the event that an easement exists on the front of the property, the distance across the easement will be excluded from the calculation. In no case may the width of the buffer zone be less than 25 feet. The primary structure must be set back a minimum of 25 feet from the edge of the buffer zone.

[3]

Mitigation measures may be used to reduce the width of the buffer areas but in no case may they have a width less than 50% of the difference of the linear distance measured from the front property line to the nearest point of wetland and 70 feet or 25 feet, whichever is greater.

(2)

The buffer zone and structural setback requirements for the construction of new primary residential structures on previously developed land within the jurisdictional area of this code shall be as follows:

(a)

When an existing buffer area has been established by conditions of a previously issued wetlands and waterways permit, a required covenant filed with the County Clerk as part of an approval issued by the Planning Board, Town Board, or Zoning Board of Appeals, that buffer zone and setback requirements shall be maintained.

(b)

When a natural buffer within the jurisdictional area exists, as verified by existing or historical surveys or aerial photography, that buffer area will be maintained to the greatest extent practicable. The building setback line for the primary structure will be at a minimum 25 feet landward of the limit of the buffer zone.

(c)

If no buffer area exists landward of the wetlands because of legally approved clearing activities or clearing that took place prior to April 1976, a buffer zone of indigenous vegetation, with a minimum width of 20 feet, shall be established adjacent to the wetlands area. The building setback of the primary structure shall be 75 feet landward of the limit of wetlands or at the greatest extent practicable as established by the Director.

(3)

All new residential structures and additions to existing residential structures that exceed 10% of the floor area of the original structure as indicated on the earliest certificate of occupancy or the equivalent or which have undergone more than one addition since the issuance of the earliest certificate of occupancy or the equivalent must:

(a)

Have an existing sanitary system in conformance to, or propose to install a new sanitary system in conformance with, the current standards of the Suffolk County Department of Health Services.

[Amended 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017; 11-30-2017 by L.L. No. 23-2017, effective 12-8-2017]

[1]

New residential structures within the jurisdictional area must install an innovative and alternative on-site wastewater treatment system.

[2]

Residential structures within the jurisdictional area constructed on or before December 31, 1986, which propose additions that increase the number of bedrooms or bathrooms, or increase the floor area of the existing structure as indicated on the earliest certificate of occupancy by an area greater than 10%, including the sum of the area of any previous additions, must install an innovative and alternative on-site wastewater treatment system.

[3]

Residential structures within the jurisdictional area constructed on or after January 1, 1987, which propose additions that increase the number of bedrooms, or increase the floor area of the existing structure as indicated on the earliest certificate of occupancy by an area greater than 50%, including the sum of the area of any previous additions, must install an innovative and alternative on-site wastewater treatment system.

[4]

Innovative and alternative on-site wastewater treatment systems installed within the Town of Brookhaven must be approved by the Suffolk County Department of Health Services and must be designed using the best available technology.

(b)

Maintain the maximum setback practicable as determined by the Director or the designee of the Director;

(c)

Install drywells to capture a minimum two-inch rainfall event from the entire house, including the proposed addition and any other impervious surfaces such as patios, driveways and the like; and

(d)

Limit landscaping with nonindigenous vegetation to no more than 15% of the total lot area.

(e)

Revegetate previously cleared areas adjacent to the wetlands with local indigenous vegetation species as directed by the Director or his designee.

(4)

Other actions for residential properties.

[Added 5-25-2017 by L.L. No. 15-2017, effective 6-7-2017]

(a)

Elevation for homes to conform to FEMA standards.

[1]

Homes that are being elevated using federal, state, or local funds or grants must upgrade the sanitary system to conform to the current standards of the Suffolk County Department of Health Services.

[2]

Homes in which the sanitary system is located within 150 feet of open water must upgrade to an innovative and alternative on-site wastewater treatment system. Innovative and alternative on-site wastewater treatment systems installed within the Town of Brookhaven must be approved by the Suffolk County Department of Health Services and must be designed using the best available technology.

(b)

Accessory structures.

[1]

Accessory structures must conform to the setbacks of the underlying zoning.

[2]

Accessory structures are prohibited within a buffer zone that exists as a condition of a previously issued wetlands or waterways permit or a covenant required by either the Town Board, Planning Board or Zoning Board of Appeals of the Town of Brookhaven.

[3]

On an undeveloped lot, new accessory structures must be set back a minimum of 50 feet from any wetland line or waterway.

[4]

On a developed property, new accessory structures must be set back a minimum distance of 10 feet from any waterways, and a minimum distance of 10 feet landward of the edge of any waterway.

Standards for land divisions and subdivisions: The standards for the design of land divisions and subdivisions within the jurisdictional area of this code shall be as follows:

(1)

Yield maps submitted to the Division of Environmental Protection must incorporate into their design, in addition to all of the requirements set forth in Chapter 85 of the Town Code:

(a)

A minimum adjacent buffer area of 100 feet extending landward from a wetland shall be required on applications for a subdivision or land division for all lots on undeveloped land;

(b)

Lot numbers consistent with the yield calculations as determined under the constraints of the Wetlands Overlay District described in § 85-626 of the Town Code of the Town of Brookhaven; and

(c)

The yield map will determine the total number of waterfront lots. Flags, narrow portions of land attached to a larger wider parcel, leading to the adjacent water body with a width less than 44 feet are prohibited.

(2)

Preliminary and final subdivision maps submitted to the Division of Environmental Protection must incorporate into their design, in addition to all of the requirements set forth in Chapter 85 of the Town Code:

(a)

A minimum adjacent buffer area of 75 feet extending landward from a wetland shall be required on each lot within the jurisdictional area of a wetland or waterway;

(b)

The number of lots must be consistent with the yield calculations as determined under the constraints of the Wetlands Overlay District described in § 85-624 of the Town Code of the Town of Brookhaven; and

(c)

(3)

Minor land division requests for undeveloped lots submitted to the Division of Environmental Protection must incorporate into their design:

(a)

Yield calculations restricting the number of lots in conformance to the Wetlands Overlay District described in § 85-626 of the Town Code of the Town of Brookhaven;

(b)

No reverse flags to the waterfront. Flags are narrow portions of land attached to a larger wider parcel, leading to the adjacent water body with a width less than 44 feet; and

(c)

A minimum adjacent buffer area of 75 feet extending landward from a wetland shall be required on each lot within the jurisdictional area of a wetland or waterway.

(4)

Developed land which is subject to an application for a major or minor land division or subdivision may be exempt from the minimum adjacent buffer area of 100 feet if: a buffer area was established under a previously issued wetland and waterways permit or is required by a covenant and/or other restrictions established by a previous (made prior to the date of the application) approval of the Town Board, Planning Board, or the Zoning Board of Appeals of the Town of Brookhaven.

(5)

Developed land undergoing a subdivision or land division application and are proposing concurrently or proposing in the future the construction of a new residential structure; an addition, alteration or relocation of the existing primary residential structure; or the installation of any new impervious surfaces (i.e., roads, driveways, accessory structures) will be required to establish a natural and undisturbed buffer area of 100 feet. However, the width of the buffer area may be reduced if, at the discretion of the Director or the designee of the Director:

(a)

The size of the lot or the expansiveness of the wetlands does not allow for a one-hundred-foot buffer and the applicant proposes or offers adequate mitigation; or

(b)

The buffer area was disturbed by previously permitted actions or by past actions undertaken prior to April 1976. In this case, the width of the buffer area shall not be less than 50 feet for a new residential structure or 30 feet for an existing residential structure or other impervious surface.

(6)

Disturbed buffer areas must be vegetated with local indigenous vegetation species as directed by the Director or his designee.

Standards for development: commercial structures. The standards for the construction of commercial structures within the jurisdictional area of this code shall be as follows:

(1)

New commercial structures constructed on undeveloped land must provide a minimum one-hundred-foot buffer zone;

(2)

Improved commercially zoned lots or developed land which are subject to an application for a site plan may be exempt from the minimum adjacent buffer area of 100 feet if: a buffer area was established under a previously issued wetland and waterways permit or is required by a covenant and/or other restrictions established by a previous (made prior to the date of the application) approval of the Town Board, Planning Board, or the Zoning Board of Appeals of the Town of Brookhaven;

(3)

Previously developed land undergoing a site plan application and are proposing concurrently or proposing in the future the construction of a new structure; an addition, alteration or relocation of the existing primary structure; or the installation of any new impervious surfaces (i.e., roads, driveways, accessory structures) will be required to establish a natural and undisturbed buffer area of 100 feet. However, the width of the buffer area may be reduced if, at the discretion of the Director or the designee of the Director:

(a)

The size of the lot or the expansiveness of the wetlands does not allow for a one-hundred-foot buffer; or

(b)

The buffer area was disturbed by previously permitted actions or by anthropogenic actions undertaken prior to April 1976. In this case, the width of the buffer area shall not be less than 50 feet for a new commercial structure or 30 feet for an existing structure or other impervious surface.

(4)

Disturbed buffer areas must be vegetated with local indigenous vegetation species as directed by the Director or his designee.