PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of section 570.3(c) and (j) of Title 9 NYCRR. This rule is proposed pursuant to [SAPA § 207(3)], 5-Year Review of Existing Rules.
Statutory authority:
Adirondack Park Agency Act, Executive Law, art. 27
Subject:
Boathouse and Dock definitions.
Purpose:
To provide clarity and better environmental protection.
Public hearing(s) will be held at:
6:00 p.m., Jan. 5, 2010 at APA, Ray Brook, NY; 6:00 p.m., Jan. 6, 2010 at Webb Community Center, Old Forge, NY; 11:00 a.m., Jan. 7, 2010 at DEC, 625 Broadway, Rm. 129B, Albany, NY; and 6:00 p.m., Jan. 7, 2010 at Lake George Town Hall, Lake George, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Text of proposed rule:
Subsection (c) of Section 570.3 is proposed to be amended:
Boathouse means a covered structure with direct access to a navigable body of water which (1) is used only for the storage of boats and associated equipment; (2) does not contain bathroom facilities, sanitary plumbing, or sanitary drains of any kind; (3) does not contain kitchen facilities of any kind; (4) does not contain a heating system of any kind; (5) does not contain beds or sleeping quarters of any kind; and (6) [does not exceed a single story] has a footprint of 900 square feet or less measured at the exterior walls, a height of fifteen feet or less, and a minimum pitch of four on twelve for all rigid roof surfaces. Height shall be measured from the surface of the floor serving the boat berths to the highest point of the structure.
Subsection (j) of Section 570.3 is proposed to be amended:
Dock means a floating or fixed structure that: 1) extends horizontally (parallel with the water surface) into or over a lake, pond or navigable river or stream from only that portion of the immediate shoreline or boathouse necessary to attach the floating or fixed structure to the shoreline or boathouse; 2) is no more than eight feet in width, or in the case of interconnected structures intended to accommodate multiple watercraft or other authorized use, each element of which is no more than eight feet in width; and 3) is built or used for the purposes of securing and/or loading or unloading water craft and/or for swimming or water recreation. A structure which is designed to be suspended above water level for storage by means of a hoist or other mechanical device is not a dock.
Text of proposed rule and any required statements and analyses may be obtained from:
John S. Banta, Counsel, NYS Adirondack Park Agency, P.O. Box 99, Ray Brook, NY 12977, (518) 891-4050, email: jsbanta@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
Five days after the last scheduled public hearing.
Reasoned Justification for Modification of the Rule
The proposed regulations mitigate unintended consequences of definitions for the term "boathouse" and "dock" established effective May 1, 2002.
The APA Act contains a significant exemption from the structure setback requirements for "dock" and "boathouse."1 Thus, it is critical to clearly and specifically define those types of structures. Distinguishing these excepted structures from other structures has created problems in the past, as people desiring structures immediately on the shoreline for habitation and recreation have tried to design them as part of a boathouse or dock. Over the years, many multi-purpose structures have been constructed on the shoreline. Structures purporting to be boathouses have been constructed with second stories dedicated to rooms for sleeping and/or general recreation, and including decks. Plus, some structures purporting to be docks are in reality decks due their size and location. Since a guest cottage, a recreation room, or a greater-than-100-square-foot deck would each be subject to the setback requirements, such structures should not be allowed as part of a boathouse without a variance; that undermines the purposes of the shoreline restrictions and the values they protect.
a) The analysis of what constitutes a "boathouse" has consumed an inordinate amount of Agency staff time. The first definition was adopted in the Agency's 1982 regulations. That definition required that the structure be used for the storage of boats and boating equipment, prohibited kitchens and baths, and provided it could not be "designed and used for lodging or residency." Unfortunately, except for the specific prohibition for kitchens and baths, the regulation was impossible to administer due to the lack of clarity in the terms used. Many of the submitted "boathouse" designs included large second story rooms with beautiful finishing and fenestration, which room the landowner insisted was just for the storage of boating equipment. Staff have spent large amounts of time analyzing boathouse plans to assess whether such structures were "designed or used for lodging or residency," and often significant design changes were required before the plans were acceptable.
The current definition, which took effect on May 1, 2002, limits a boathouse to use only for the storage of boats and boating equipment, and also to a "single story." The use limitation was an essential component of the definition; it furthers the intent of the shoreline restrictions and ensures that shoreline structures will not be built and used for anything other than what is necessary to be located at the shoreline: the shelter for boats and related equipment. The "single story" limitation was supposed to eliminate the creation of a second story which could be used for a sleeping or recreation room. When drafted, the 2002 definition was based on the New York State Uniform Building Code, which confirms that an attic is not a "story." Thus, the intent was that a boathouse could have storage space above the "ceiling" joists and under the roof rafters, but that space cannot be used for anything other than the storage of boats and associated equipment.
However, the definition did not provide the desired result or the clarity needed. Staff is still required to analyze architectural elements to confirm whether a structure contains only a "single story," based on inclusion of windows, dormers, flooring, doors and stairs associated with the area in the structure above the first floor ceiling joists. Following the May 1, 2002 implementation of the revised definition, guidance regarding application of the "single story" requirement was issued by Agency Counsel and widely distributed to code enforcement officers, building inspectors and any members of the public who requested it, and it was also posted on the Agency's website. The guidance is also complex to administer and it did not eliminate the creation of large, multi-use structures on the shoreline. Moreover, it remains impossible for staff to investigate the actual use of the "attic" area.
The process used to determine whether a structure constitutes a "boathouse" remains unwieldy and unnecessarily complex. The proposed regulation will eliminate the "single story" requirement and will instead provide for a size and height limit, both of which are measurable from the exterior and hence easy to administer. The size limits are necessary to ensure that a second story recreational space is not created. After 35 years of administration of the APA Act, the Agency has concluded that no such space shall be allowed without a variance; the design parameters ensure that the structure is in fact only a boathouse. Note, also, that the size limitation is generally reasonable for most shoreline parcels. The shoreline cutting requirements limit the amount of shoreline vegetation that can be removed. Most shoreline parcels are 100 feet in width and can accommodate at best a 30-foot-wide shoreline structure under the cutting limitations.
The proposed regulation also eliminates the potential for construction of a flat roof on a boathouse.2 A flat roof has been allowed under the prior regulatory boathouse definitions. With the 2002 elimination of the potential for construction of a second story, many boathouses were being designed with a large elevated deck with surrounding "safety" railing (or glass enclosures); sometimes with a stone fireplace serving the deck. The elevated deck often significantly exceeds 100 square feet in size; in fact, in some cases they have been well over 1,000 square feet in size. Construction of a deck in excess of 100 square feet in size within the shoreline setback area or over the water would require a variance from the shoreline setback requirements. Construction of a deck to serve as the roof a boathouse evades the setback requirement for the deck and subverts its purpose.3 The proposed regulation will limit the potential for use of the roof as a deck for recreational purposes, as such deck was not intended by the statute to be associated with a boathouse and exempt from the shoreline requirements.
This proposed regulation creates guidelines readily measurable and understood by designers and builders. This reduces the potential for violations associated with construction of a structure that a landowner might allege is a "boathouse," but which does not comply with the Agency definition. The current definition and related Agency guidance has failed to achieve the desired result, and the evaluation of multiple permutations of boathouse designs has continued to occupy an inordinate amount of staff resources. The proposed regulation will clearly delineate the acceptable structural components for a boathouse with the intent that the sole purpose is for boat storage.
b) For many years, staff guidance relative to docks has provided that such a structure cannot exceed eight feet in width; that practice was codified in the regulatory revision which took effect on May 1, 2002 (prior to which time, no definition of "dock" was contained in either the APA Act or its implementing regulations). This action implemented the Task Force recommendation that the Agency codify existing practices.
Since May 1, 2002, the Agency has received inquiries regarding structures which serve as seasonal docks with hoists which allow for suspension of the structure over the water/ice for winter storage. The hoist mechanism uses a tall pole and hydraulics to raise the structure (or its framework) and suspend it at an angle above the water level. The purpose is to eliminate the need for removal and storage of the structure in a different location away from the water to protect it from potential ice damage. The Agency has consistently taken the position that these structures are not "docks" when suspended above water level and, if they exceed 100 square feet in size, an Agency variance is required for their installation. A large structure as hoisted is highly visible, potentially dangerous, and simply does not serve as a "dock" in that position. Aesthetics is one of the values protected by the shoreline restrictions and that value is impacted by these large structures. The proposed regulation would effectuate this application of the shoreline setback requirements. However, the Agency intends this proposed dock regulation to be prospective only, except that landowners must comply with any outstanding formal jurisdictional determination which provided similar parameters.
1 The setback requirement for structures in excess of 100 square feet in size range from 50 to 100 feet, depending on the classification of the applicable property on the Adirondack Park Land Use and Development Plan Map. (Note that larger setback requirements apply to the shorelines of rivers designated under the New York State Wild, Scenic and Recreational Rivers System Act.)
2 The proposed definition requires rigid roof structures to meet the slope requirement. This is to allow for fabric or plastic roofed structures which may not meet to slope requirement because they are arched in design.
3 There are also noise and lighting issues associated with shoreline decks.
Summary of Regulatory Impact Statement
1. Statutory authority:
The Adirondack Park Agency Act (APA Act), Executive Law Article 27, Section 804(9), authorizes the Agency "to adopt, amend and repeal...such rules and regulations...as it deems necessary to administer this article and to do any and all things necessary or convenient to carry out the purposes and policies of this article...." Similar authority is also found in the NYS Wild, Scenic and Recreational Rivers System Act (ECL Section 15-2709) and in the NYS Freshwater Wetlands Act (ECL Section 24-0801). The statutory and regulatory language addressed in the proposed regulations are: Executive Law Article 27, Section 806(1)(a)(2) which addresses both docks and boathouses; 9 NYCRR Section 570.3(c) boathouse definition and 570.3(j) dock definition; 9 NYCRR Section 577.4(b)(3)(ii) which regulates construction of docks and boathouses within areas designated under the NYS Wild, Scenic and Recreational Rivers System Act. In addition, SAPA Section 207 requires an agency to review on five-year intervals any regulation passed since 1997. The existing boathouse and dock regulations are in that category and the proposed regulations are intended to fulfill that requirement.
2. Legislative objectives:
The shoreline restrictions in Section 806 of the APA Act impose special protections on the shorelines of all Adirondack lakes and ponds and navigable rivers and streams. Section 806 shoreline structure setback requirements only exclude very small structures and "docks" and "boathouses" which of necessity must be on the shoreline. A variance is required to deviate from these requirements. The scientific literature clearly supports the need to minimize shoreline development and preserve natural, undeveloped buffers between development and the water.1 The proposed regulations mitigate unintended consequences of definitions established effective May 1, 2002.
3. Needs and benefits:
The construction of any structure located within the shoreline setback area or in the water causes an adverse impact to water quality and wildlife habitat, and may also create impacts to the aesthetics of the natural shoreline character, also a matter of importance under the APA Act. Hence, for these reasons, the Agency has determined that the setback requirements must be strictly followed.
The APA Act contains a significant exemption from the structure setback requirements for "dock" and "boathouse."2 Thus, it is critical to clearly and specifically define those types of structures. Distinguishing these excepted structures from other structures has created problems in the past, as people desiring structures immediately on the shoreline for habitation and recreation have tried to design them as part of a boathouse or dock. The proposed boathouse regulation will substitute fixed exterior measurements for the term "single story" to improve consistency and simplify administration of that provision. The proposed regulation also eliminates the potential for construction of a flat roof on a boathouse.3 With the 2002 elimination of the potential for construction of a second story, many boathouses are being designed with a large elevated deck with surrounding "safety" railing (or glass enclosure); sometimes with entertainment amenities like a stone fireplace serving the deck. Construction of a deck to serve as the roof of a boathouse evades the setback requirement and subverts its purpose.4
The proposed dock regulation addresses large metal-framed structures which serve as a dock in the summer, but are hoisted into the air and suspended at an angle over the water for winter storage. These structures are prohibited unless they are 100 square feet in size or less, or if a variance is obtained. Lawfully existing dock structures may remain.
4. Costs:
There are no costs associated with the proposed regulations. The construction of a boathouse or a dock is entirely discretionary and a matter of choice. If a landowner chooses to build either structure, he or she must meet the regulatory definition. Both proposed regulations impose size limitations on the structure which could reduce its cost. Moreover, both provide specific performance criteria which will clarify design options. This is an improvement over the repeated submissions which have become the pattern due to the lack of definitive standards in the current definitions. Some landowners will argue that the hoist system for a dock is the only alternative for their shoreline situation. However, this proposed regulation does not preclude the use of a hoist; it just requires that the structure hoisted be no larger than 100 square feet in size, or that a variance be obtained. A 25-foot by 4-foot dock would meet this requirement without a variance.
5. Paperwork:
The proposed regulations should reduce the current pattern of multiple filings with the Agency in order to reach a determination that a boathouse or dock project is non-jurisdictional. This is because of the greater clarity of design requirements in the proposed regulations. In addition, the proposed regulations will not create any new filings or forms.
6. Local government mandates:
The proposed regulations will not impose any new responsibilities on local government entities.
7. Duplication:
The proposed regulations do not duplicate requirements administered by state or local government.
8. Alternatives:
Before adoption of the 2002 amendments, the Agency seriously discussed various size and height limitations. It noted that many municipal laws have height limitations for boathouses. These specific limitations were rejected in favor of the "single story" language. Since the 2002 revision, the Legal Affairs Committee has discussed the issues that have arisen with that new definition, and the Agency determined that the only option to ensure that shoreline structures would be limited to the single purpose of the storage of boats and boating equipment was via size and height limitations. To the extent structures of significant size have been allowed under the old definitions, portions of such structures have routinely been converted and used for purposes other than boat and boat equipment storage.
The Technical Advisory List (TAL) is a multi-disciplinary and multi-interest volunteer group consisting of members of the Task Force on Expediting Adirondack Park Agency Operations and Simplifying its Procedures and representatives of fifteen groups having special and diverse interests in the Adirondacks. The TAL met with the Agency on November 17, 2008 to comment on the proposed regulations which had been circulated to all its members. This broad-based group provided valuable advice and their comments have been taken into consideration when drafting the proposed regulations. For the proposed boathouse regulation, the only significant comment was that the proposed measurement methodology would not work; this prompted a minor change to the proposed regulation. Alternatives reviewed in the course of this dialogue have included different size and height limits and roof pitches. A larger height limit would allow steeper roof pitches, but would also reintroduce the "attic" vs. living space issue.
The proposed regulation should provide clear parameters that can be readily evaluated based on external observations of the resulting structure. Some have argued that a larger footprint size should be allowed for those with significant length of shoreline, to accommodate larger boats, and/or for situations where large estates or shared facilities would require storage of many boats. The proposed regulation would accommodate a one- to three-stall boathouse typical of those found on many Adirondack lakes. Special situations requiring larger boathouses can be accommodated through the variance process. This would provide a permit-style review and approval process where circumstances justify a variance. The proposed regulation would end the practice of allowing flat roofs that can be used as entertainment decks unrelated to the storage of boats. For docks, the proposed regulation is narrowly tailored to address the specific problem of hoisted structures.
9. Federal standards:
The proposed regulations do not involve any federal statutory authority or standards.
10. Compliance schedule:
The proposed regulations will apply prospectively, effective immediately upon approval and filing.
1 The Agency has relied in part on a document entitled Regulatory and Educational Opportunities for Shoreland Protection in the Adirondack Park, dated June 2003, by Sean Conin, PhD., the Agency's former Freshwater Analyst. This comprehensive research paper discusses in detail the scientific evidence for the protection of natural vegetated buffers along shorelines.
2 The setback requirement for structures in excess of 100 square feet in size ranges from 50 to 100 feet, depending on the classification of the applicable property on the Adirondack Park Land Use and Development Plan Map. (Note that larger setback requirements apply to the shorelines of rivers designated under the NYS Wild, Scenic and Recreational Rivers System Act.)
3 The proposed definition requires rigid roof structures to meet the slope requirement. This is to allow for fabric or plastic roofed structures which may not meet to slope requirement because they are arched in design.
4 There are also noise and lighting issues associated with shoreline decks.
Regulatory Flexibility Analysis
The APA has determined that the proposed regulatory amendments will not impose reporting, recordkeeping or other compliance requirements on anyone, including small businesses and local governments.1 A Regulatory Flexibility Analysis is not required pursuant to SAPA Section 202-b(3).
The proposed regulations provide revised requirements for the construction of new boathouses and docks in the Adirondack Park.
As discussed in the RIS, people with shoreline property will continue to build boathouses and docks unabated, even as they comply with the new requirements. The professional services required today to build a boathouse or dock will continue to be needed under the new requirements, but not to any greater degree. The only exception is the potential need for legal counsel if a landowner elects to pursue a request for a variance, but that is an elective choice, and not imposed by the regulation. There are no initial, capital or annual costs imposed by these proposed rules. As discussed in the RIS, the proposed amendments will not have any impact on job opportunities.
The new rules are designed to address regulatory problems that were not solved in the past by outcome or performance standards; it has become necessary to create specific design standards to accomplish the purposes of the shoreline requirements of the APA Act.
1 Those who wish to replace a lawfully non-conforming structure will have to document the lawful existence of such structure, but that has always been the case since the inception of the APA Act in 1973, and has no relationship to the design requirements for new construction, addressed by the proposed regulations.
Rural Area Flexibility Analysis
The proposed regulations, applicable throughout the Adirondack Park, have the same effect whether the area is considered rural or not, and will create no additional burden for rural areas. (Arguably, the whole of the Park is a rural area.) The proposed regulations impose no reporting, recordkeeping or other compliance requirements on anyone.1 Therefore, the Adirondack Park Agency has determined that the proposed regulatory amendments will also not impose any reporting, recordkeeping or other compliance requirements on small businesses, rural areas, or on public or private entities in rural areas, and a Rural Area Flexibility Analysis is not required pursuant to SAPA Section 202-bb(4).
The proposed regulations provide revised requirements for the construction of new boathouses and docks in the Adirondack Park. As discussed in the RIS, people with shoreline property will continue to build boathouses and docks unabated, even as they comply with the new requirements. The professional services required today to build a boathouse or dock will continue to be needed under the new requirements, but not to any greater degree. The only exception is the potential need for legal counsel if a landowner elects to pursue a request for a variance, but that is an elective choice, and not imposed by the regulation. There are no initial, capital or annual costs imposed by these proposed rules. As discussed in the RIS, the proposed amendments will not have any impact on job opportunities.
The new rules are designed to address regulatory problems that were not solved in the past by outcome or performance standards; it has become necessary to create specific design standards to accomplish the purposes of the shoreline requirements of the Adirondack Park Agency Act.
1 Those who wish to replace a lawfully non-conforming structure will have to document the lawful existence of such structure, but that has always been the case since the inception of the APA Act in 1973, and has no relationship to the design requirements for new construction, addressed by the proposed regulations.
Job Impact Statement
A formal job impact analysis is not submitted for these proposed regulatory amendments to the APA regulations because these amendments are not expected to create any substantial adverse impact upon jobs and employment opportunities in the Park. These amendments do not make significant changes to the existing regulations, and will not impact employment opportunities in the Park, as explained below.
The first proposal changes the definition of "boathouse" by adding a specific height requirement instead of limiting the structure to a "single story." In addition, the regulation imposes a maximum square footage for the structure, and a minimum roof pitch. While the existing definition does not impose a square footage requirement, other regulations limiting shoreline cutting in effect pose a limitation on boathouse size. This regulation does not preclude the replacement "in kind" of lawfully existing boathouses, and it allows larger structures via the granting of a variance. The size requirement is in line with the size of the vast majority of boathouses constructed, with potential for housing 2-3 motor boats. The regulation is permissive in nature, not prohibitory in that it does not require a landowner to do anything, but rather provides requirements should a landowner choose to pursue a particular development project.
Section 201-a of SAPA defines job impact as a "change in the number of jobs and employment opportunities" attributable to the adoption of the rule. A "substantial adverse impact on jobs" is defined as "a decrease of more than 100 full-time annual jobs and employment opportunities."
Clearly, there will be no change in employment opportunities of a scale that meets the "substantial adverse impact" test. The changes to the boathouse definition do not preclude the construction of boathouses, but rather only affect their design parameters. Because of the high value of shoreline properties, the demand for boathouse structures will continue unaffected by and in compliance with the regulation, and employment for such construction will continue unabated. The need for architectural and engineering expertise will also remain unaffected, since these experts have generally been necessary for these special structures built to withstand the forces of flowing water and ice, and they will remain necessary. To the extent variances are required for a particular structure, that may increase the employment opportunities for legal counsel.
The change to the definition of "dock" is similar. It does not preclude the construction of docks, but rather affects the method of storage of such structures in the winter. Docks will continue to be built. Replacements "in kind" of lawfully existing structures will continue. Hoisted docking structures will still be allowed, provided the structure does not exceed 100 square feet in size. If there is no other alternative for a particular location, a variance can be granted for a larger hoisted structure.
