§ 81-15. Granting, denying or limiting projects, Category A and Category B., Chapter 81. Wetlands and Waterways, Land Use Legislation, Code of Ordinances, Brookhaven

Within 60 days of the closing of the public hearing for a Category A project and/or the completion of any pre-issuance requirements set forth by the Town Board, the Town Board shall, in writing, approve, approve with conditions, or deny the application in accordance to findings issued by the Town Board.

Within 60 days of the applicant fulfilling all the necessary conditions of the completion notice for a Category B project application, the Director or the designee of the Director shall, in writing, approve, approve with conditions, or deny the application in accordance to findings prepared by the Division of Environmental Protection.

In considering the granting, the conditional granting, or denial of any permit application, it shall be the policy of the Town, through the Town Board in the case of Category A permit applications and the Director in the case of Category B permit applications, to:

(1)

Safeguard, protect, and preserve the vegetation and fauna of all wetlands and waterways and to maintain the quality and ecological integrity of all wetlands and waterways by preserving, to the greatest extent possible, surface waters, wetland habitats, and their adjacent upland buffer areas, in order to maintain the ecological processes necessary for their perpetuation;

(2)

Safeguard, protect, and enhance, when and where possible, water quality conditions in wetlands and surface waters by ensuring that applications for development, redevelopment, or the expansion of existing structures incorporate into their design: a sanitary system that meets or exceeds the standards for nitrogen and bacterial removal of the Suffolk County Department of Health Services; a system of containment for stormwater runoff; and expanding or preserving natural buffer areas, minimizing the extent of fertilizer-dependent vegetation, or the creation of vegetated recharge areas to prevent surface contamination from entering adjacent waterways.

(3)

Minimize, to the greatest extent possible, the impacts to wetlands and waterways from erosion and sediment transport caused by existing development, the potential effect of new development, and those existing and proposed structures associated with development such as docks, bulkheads, gabions, and revetments on the ecological integrity of the Town's wetlands and waterways by providing adequate setbacks and buffer zones, using nonstructural shore protection devices, minimizing the impacts of existing structures and developing a site in conformance with the natural topography of the site;

(4)

Minimize adverse ecological impacts to wetlands and surface waters and the flora and fauna which inhabit these areas from dredging and dredge spoil disposal activities;

(5)

Safeguard, protect, and preserve the public's access to the shoreline and their continued use along it.

In considering the granting, the conditional granting, or denial of any permit application for residential and commercial docks, the Town of Brookhaven shall also consider the following:

(1)

The dock shall be located on the property so as to minimize the obstruction of surface waters, reduce hazards to navigation, minimize the reduction in uses of public trust lands and waters, and minimize negative impacts to natural resources;

(2)

The dock shall be for riparian access for a waterfront lot and shall not impinge or impair the riparian rights of the adjacent waterfront property owners;

(3)

The construction of the dock shall be allowable within the underlying zoning of the project site; and

(4)

The cumulative impacts of a residential and commercial dock shall be considered and the design, construction, and location of the dock shall minimize cumulative impacts.

In considering the granting, the conditional granting, or denial of any permit application for structural or nonstructural shore protection devices, the Town of Brookhaven shall also consider the following:

(1)

That the structural shore protection devices are located on the property so as to minimize the erosive effects of the device on the project property, the adjacent properties, and any adjacent wetland areas;

(2)

That the structural shore protection devices are sited to minimize the reduction in use of and access to public trust lands and waters, and minimize adverse impacts to natural resources;

(3)

That the potential cumulative impacts of the approval of the structural shore protection devices or, if applicable, the precedence set by the approval of the device, shall be evaluated and the design, construction, and location of the device shall minimize cumulative impacts; and

(4)

That the extent to which the structural shore protection devices are necessary to protect personal property from the effects of erosion; in assessing the degree to which the shore hardening device meets this criteria.

In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall evaluate and consider all comments from the public received during the application process and subsequent public comment period, if applicable, and consider practicable alternatives that reduce or mitigate the identified issues.

In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall evaluate practicable alternatives that minimize negative impacts to the wetland. The practicable alternative analysis may reduce the scale of the activity, consistent with the project purpose, proposed use and permit issuance standards set forth in § 81-14.

In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall impose conditions or constraints designed to carry out the intent of this chapter, which may include the imposition of restrictive covenants and/or performance bonds. Such conditions or limitations shall be incorporated in the permit. If the proposed activity causes an unavoidable loss of wetlands or unavoidably adversely impacts a waterway, said impacts having been minimized to the extent practicable, the applicant shall develop a mitigation plan which shall specify mitigation measures that provide the replacement of the resources which are lost due to the proposed activity. If mitigation is required, the mitigation plan will be a condition of the permit and shall be completed prior to the expiration of the permit and maintained for the life of the permitted structure. Any wetland created pursuant to this provision shall be protected and regulated.

In considering the granting, the conditional granting, or denial of any permit application, the Town Board or the Director shall, in consultation with the applicant, impose or accept mitigation measures to provide relief from mandatory restrictions, setbacks and buffer zones established in § 81-7 and § 81-14. The decision to accept or reject a mitigation measure is at the sole discretion of the Town Board for a Category A project or the Director for all other projects.

(1)

For applications that propose development or the construction of accessory structures on upland property, the mitigation measures may include, but are not limited to:

(a)

A one-time payment of $4 per square foot for each square foot of buffer zone that the proposed project lacks to meet the minimum setback as required;

(b)

The donation to the Town of Brookhaven, Suffolk County, the NY State Department of Environmental Conservation, or an approved not-for-profit environmental group of a property that has, at a minimum, an equal amount of upland property needed to conform to the buffer area requirements;

(c)

The donation to the Town of Brookhaven, Suffolk County, the NY State Department of Environmental Conservation, or an approved not-for-profit environmental group of a property that has, at a minimum, three times the amount of wetlands needed to conform to the buffer area requirements; and

(d)

The purchase of Pine Barrens or Town TDR credits, complete or partially, to provide sufficient yield, as calculated by the methodology of the Wetlands Overlay District, to provide the lot a yield of one unit.

(2)

For structures that are placed upon or within Town-owned underwater land, the mitigation measures may include, but are not limited to:

[Amended 4-11-2019 by L.L. No. 9-2019, effective 4-18-2019]

(a)

For structures constructed prior to 1976, a one-time payment of $1 per square foot for each foot of occupied Town-owned land that exceeds the requirements of §§ 81-7 and 81-14 shall be made to the Division of Environmental Protection.

(b)

For structures constructed after 1976, a one-time payment of $10 per square foot for each foot of occupied Town-owned land that exceeds the requirements of §§ 81-7 and 81-14 shall be made to the Division of Environmental Protection.

(3)

Any funds paid to the Town of Brookhaven pursuant to § 81-15I(1)(a) and § 81-15I(2)(a) shall be deposited into an account established by the Division of Environmental Protection for wetland and shellfish restoration projects.

Any decision by the Director to grant, deny or place conditions upon a wetland permit or to revoke or suspend any permit previously issued pursuant to this chapter shall be supported by written findings giving the reason for such decisions.