Islanders are challenging the Town Board’s proposed wetlands permitting changes aimed at enhancing protections, arguing the elected Supervisor and Councilmembers should process them, not appointees.
Town Attorney Stephen F. Kiely drafted code changes to streamline operations by putting the Planning Board at the helm and to:
- remove a currently misapplied state form
- fix inconsistencies between Town policies relating to demolition
- clarify how property owners may use a 100-square-foot wetlands exemption
- rescind an unnecessary insurance requirement
- require follow up, at applicant’s expense, to ensure work is completed properly
By law, a Town Board can assign administrative duties to appointees that have the resources to manage the work.
Kiely said the Planning Board already reviews all wetlands permits, has its own engineer and attorney, and a budget to hire other consultants. And, by freeing up time devoted to wetlands review, the Town Board could focus on legislative matters.
The public hearing began March 21 and reconvened Wednesday. Several Islanders objected to giving unelected officials permitting authority and said the proposed changes could weaken local wetlands protections.
Background
The Department of Environmental Conservation (DEC) regulates water resources in New York, including wetlands. The state adopted tidal wetlands protections in 1973 and for freshwater wetlands two years later.
They don’t ban development, but allow uses “compatible with the preservation, protection, and enhancement of the present and potential values.” For tidal wetlands — the predominant form here — these values include: “marine food production, wildlife habitat, flood and hurricane and storm control, recreation, cleansing ecosystems, absorption of silt and organic material, education and research, and open space and aesthetic appreciation.”
The DEC created systems to define and inventory wetlands and developed environmental quality review standards. Then, it allowed regulatory authority for municipalities that enacted appropriate protections and had the means to administer them.
Shelter Island’s wetlands protections
Shelter Island’s wetlands protections date from 2001, with later updates. The locally regulated area extends 100 feet landward from a wetlands boundary with the first 75 feet considered especially sensitive.
The Town’s goal: no net loss of wetlands due to development or other activities.
Now, when property owners apply to the Building Department for permits to work within or near wetlands, they must also apply to the Town Board for wetlands permits. In vetting them, the Town Board relies on input from the Planning Board and Conservation Advisory Council (CAC) and usually follows their recommendations closely.
Elsewhere, appointed planning or conservation boards, or, in bigger towns, professionals in planning departments typically administer local wetlands permits.
Lately, Town Board members have expressed concern the process is inefficient, resulting in undue delays. These may result from scheduling lags among the three entities, particularly when multiple, sometimes redundant, meetings are needed to follow up on additional information.
Often, applicants seek wetlands permits alongside other approvals — like zoning variances. Recently, at the request of the Zoning Board of Appeals, the Town Board extended variance duration to two years to give applicants time to complete their other, sometimes lengthy, permitting processes.
Short Environmental Assessment Form
To enhance the process, Kiely recommended dropping the state’s Short Environmental Assessment Form from the wetlands application. The DEC created the form to aid specific decision-making under the State Environmental Quality Review (SEQR) law for conditions infrequently encountered here.
In SEQR, every proposed action fits one of three categories: Type I, Type II, or Unlisted. The DEC maintains a list of Type I and Type II actions; all others are designated as Unlisted.
If the municipal agency responsible for coordinating review determines an action is Type II, no SEQR analysis is required. The state has determined these actions do not have a significant adverse impact. Most wetlands permits proposed here are for Type II actions, which include:
- rebuilding or replacing facilities, in kind, on the same site
- building minor structures, such as garages, sheds, or home swimming pools
- routine permit and license renewals with no substantial change in permitted activities
- constructing or expanding primary or accessory nonresidential structures in an appropriate zone with less than 4,000 square feet of gross floor space
- building or expanding a single, two- or three-family residence on an approved lot
- routine activities of educational institutions, including expansions of existing facilities by less than 10,000 square feet
- nondiscretionary (ministerial) approvals
- maintenance and repair activities
- emergency actions
For Unlisted and Type I actions, the DEC designed the Short Environmental Assessment Form and the Full EAF, respectively. They aim to help agencies assess the significance of actions they’ve determined will have an adverse environmental impact.
Because Type II actions are categorical exclusions from SEQR, the DEC provides no form for further analysis. Kiely pointed out that those reviewing wetlands permit applications would require the appropriate DEC form when warranted by a SEQR determination.
Demolition
The proposal also repairs inconsistencies between the Town’s standard demolition permit process, handled by the Building Department, and wetlands clearing. Now, if a structure to be demolished is on or near wetlands, the property owner must apply to the Town Board for a wetlands permit.
While this makes sense for applications that include other actions in wetlands, it compounds costs and may create contradictory incentives when someone just wants to remove an existing wetlands intrusion.
Councilwoman Meg Larsen says the outlay of resources — time and money — may inspire applicants to expand a project’s scope of work. She used the example of a derelict shorefront gazebo.
Now, to knock down that gazebo, the property owner has to submit a wetlands application that includes, among other items, a recent survey, professionally-certified plans of the structure, and a post-clearing landscape plan. The applicant or representative may have to attend multiple meetings to respond to questions.
She argued that to make such an investment worthwhile, property owners may propose additional allowable activities that expand the wetlands intrusion. Or, they may forego the trouble and expense and just let the thing collapse, presenting other threats.
Kiely and the Town’s Chief Building Inspector, Reed Karen, said that in such cases, the Building Department’s standard demolition permit process should suffice with alterations specific to governing clearing work done in wetlands.
Exemption, insurance, and follow-up
The proposed code change also clarifies a 100-square-foot exemption for allowable activity.
Right now, applicants have one chance to use the exemption, which may incentivize them to pursue the total amount. For example, they may seek a 100-square-foot shed in the regulated area when a 6- by 4-foot shed could satisfy their needs.
Under the proposed cumulative exemption, an applicant could apply for the smaller shed, reserving later permission for other allowable activities — such as placing a small patio at the shed door. By permitting the exemption incrementally, so long as the total doesn’t exceed 100 square feet, regulators may reduce overall wetlands intrusions.
Kiely suggested removing a requirement for applicants to name the Town as an additional insured under their comprehensive general liability policies; the Town’s insurer says this isn’t necessary.
He also proposed strengthening compliance by requiring the applicants to follow up by contacting the Planning Board’s consulting engineer once work is complete to certify that plans were completed as approved. Applicants would pay any fees incurred during the required follow-up.
SIA and SIHPOC object
The Shelter Island Association and the Shelter Island Heights Property Owners Corporation registered objections at both public hearing sessions.
SIA President Kim Noland said her board was unanimous in opposition, providing reasons in writing. For brevity in spoken remarks, she noted the Island has some 45 miles of coastline and extensive wetlands with numerous assets worthy of continued Town Board attention, including beaches, marinas, and the Coecles Harbor Marine Water Trail.
“So many parts of this Island are affected by the wetlands, and in a period of climate change, I think you want to be more protective of them and not weaken that law,” she said.
SIHPOC also submitted written comments. General Manager Stella Lagudis said her board was unanimous in opposing the proposed changes that would remove “checks and balances, loosening restrictions in a time when we should actually be strengthening the restrictions.”
Lagudis said her takeaway from a recent meeting where the Planning Board discussed the proposal is that the appointed planners would end up outsourcing aspects of the permit review.
“If we need to bring in an expert in terms of an environmental consultant, then why not leave it with the Town Board,” she asked. She said that Planning Board members tend to work locally in development-related occupations and might be “more in a position to have a conflict.”
For example, Chairman Ian McDonald is an architect who would have to recuse himself from reviewing an upcoming wetlands permit as he’s professionally associated with the project, she said.
[Note: Under state law, Town Boads may appoint alternate Planning Board members to stay abreast of local planning issues and participate in training so they’re ready to step in when conflicted members must be recused.]
Citizens Advisory Committee
Initially, Howard Johansen, a CAC co-chair, seemed to mistakenly believe the Town Board wanted to shrink the entire Wetlands chapter (read it here). Kiely assured him the proposed text applies only to specific sections.
Follow this link for the proposed changes (strikethroughs indicate text to be removed; underlining indicates additions).
“I don’t know why we’re doing this now,” Johansen said.
“What we’re trying to do is fix the process,” Supervisor Gerry Siller said. “The purpose of this hearing is to see how the public feels.”
In the second hearing session, Johansen said the interconnected nature of wetlands means Shelter Island decisions can have a broad impact.
“I don’t think a planning board, although they’re very good and I respect Ian, should be responsible for making a judgment on wetlands,” he said.
Such decisions may affect “Connecticut, Southold, Hampton Bays — in fact, all of Long Island. They could even affect Manhattan.”
Johansen said elected supervisors and town board members from across the region have opportunities to meet and share information through professional associations, but not so for planning boards.
[Note: NYS law requires Planning Board members to attend four hours of annual land use and governance training. And, meeting minutes indicate three Planning Board members were also approved to attend a recent Association of Towns conference.]
In addition to retaining permit approval, Johansen encouraged the Town Board to keep separate considerations for wetlands demolition in place. “Demolition in the wetlands can cause an awful lot of damage, and it should be carefully watched.”
Other public comments
Former Town Councilman Albert Dickson, running for re-election, said he believes the Planning Board chair is too conflicted to lead the process.
Rather than remove the SEAF, the Town Board should require it of all applicants, he said. He also wants to retain the insurance provision and the separate wetlands demolition review. Enabling wetlands demolition under a Building Department permit and not subjecting it to Town Board scrutiny would create a loophole “that could be taken advantage of.”
Like Johansen, Dickson seemed to initially misunderstand a proposed change. Why, he asked, would the Town Board authorize the Planning Board to approve an application without first ensuring it had received all related DEC or Suffolk Health Department clearances?
Kiely said the proposal does the opposite; it considers incomplete and ineligible for approval applications lacking such clearances.
“What I feel is that you’re streamlining and fast-tracking the process to the benefit of the applicants and to the detriment of our environment,” Dickson said.
Bob Kohn opined the process would become less transparent but said he believes the Planning Board is competent to conduct such reviews. Siller pointed out the Planning Board’s meetings are open to the public, with meeting materials posted on the Town website.
Kohn suggested the Town Board retain oversight but speed up the process by putting “a higher level of credibility” on Planning Board recommendations. He said the Town Board could opt to extensively review only those applications where someone has complained about the review process.
Also, he said a requirement that a credentialed environmentalist flag wetlands boundaries within five years of application submission might invite “shenanigans.” He recalled a ZBA variance contested in court cases over many years where, he said, a wetlands boundary appeared to move to the applicant’s advantage.
Kim Bonstrom accused the Town Board of violating SEQR if it handed over authority to the Planning Board. Referring to a remark by Siller that the Town Board “rubber stamps” Planning Board and CAC findings, Bonstrom said the attitude means the Town Board can’t be trusted, and he reminded those listening the Town had been sued over SEQR.
[Note: State law allows town boards to delegate administrative duties to capable subagencies or individual town officials, including SEQR. Bonstrom spoke on March 21. On April 3, a Suffolk County Supreme Court judge dismissed as without merit the one recent lawsuit relating to the Town’s handling of SEQR filed by neighbors objecting to the issuance of The Ram’s Head Inn dock permit.]
Kathleen DeRose said she objects because the proposal “weakens the law by removing some wetlands protections” and “it is bad governance to transfer this responsibility to an unelected body.”
Hay Beach Property Owners Association President Patrick Clifford said he couldn’t recall such unanimity among SIA member organizations.
“Every single person representing every one of the homeowners’ associations agreed,” he said. “You have the authority already, and it shouldn’t be delegated down to a non-elected body.”
Pam Demarest also objected, reiterating concerns stated by others, as did Marc Wein.
Support
Matt Sherman of Sherman Engineering & Consulting PC, who grew up on Shelter Island and applies for wetlands permits on behalf of clients, supports the changes.
He said the shift to the Planning Board doesn’t reduce oversight but consolidates it. He praised the CAC, which would continue in its review role. “9.9 times out of 10, when the CAC comments on an application, it ends up being a better application.”
While he shares Johansen’s concerns about demolition in wetlands, he believes the Building Department and planners can coordinate a solution.
“I have full faith in the CAC and the Planning Board,” he said. “They’ve done a top-notch job.”
“But really, it’s still the work of the Planning Board and the CAC that the Town Board is voting on.”
Planning Board responds
Planning Board Chairman Ian McDonald pushed back on the perception that handing over decision-making would “make the environment worse off.”
The proposal, he said, puts the wetlands review process “in the hands of people who are very familiar with the various jurisdictions that review these and what the criteria they look at.”
McDonald said Planning Board members know how to read site plans and, as a result, “have a clear picture of what’s proposed.”
Unlike the Town Board, “we have members who are versed in construction practices. That’s a benefit to be for us to be able to reiterate or more directly advise an applicant.”
He said that giving the Planning Board review authority would enable it to act when it finds items missing from an application. Currently, the planners can only advise the Town Board to pursue the additional information, creating delays.
Under the proposed process, he said the Planning Board’s consulting engineer would ensure an application is complete before scheduling it for review. Then, both the Planning Board and CAC would continue to vet proposals and make site visits.
“I’m not so certain that the Town Board has been visiting these job sites with all their other workload,” he said.
