APA-35-08-00021-P Wetlands, Non-Conforming Shoreline Stuctures and On-Site Wastewater Treatment Systems, Floor Space, Hunting and Fishing Cabins

8/27/08 N.Y. St. Reg. APA-35-08-00021-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 35

August 27, 2008

RULE MAKING ACTIVITIES

ADIRONDACK PARK AGENCY

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. APA-35-08-00021-P

Wetlands, Non-Conforming Shoreline Stuctures and On-Site Wastewater Treatment Systems, Floor Space, Hunting and Fishing Cabins

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Amendment of Parts 570, 573, 575 and 578 of Title 9 NYCRR.

Statutory authority:

Adirondack Park Agency Act, Executive Law, article 27; NYS Wild, Scenic and Recreational Rivers System Act (ECL section 15–2709); NYS Freshwater Wetlands Act (ECL section 24–0801)

Subject:

Wetlands, non-conforming shoreline stuctures and on-site wastewater treatment systems, floor space, hunting and fishing cabins.

Purpose:

To clarify, simplify and provide better environmental protection.

Public hearings:

6:00 p.m., October 14, 2008 at Adirondack Park Agency, Ray Brook, NY; 3:00 p.m., October 15, 2008 at Gore Mountain Ski Center, North Creek, NY; and 2:00 p.m., October 20, 2008 at Department of Environmental Conservation, Albany, NY.

Substance of proposed rule (Full text is posted at the following State website: www.apa.state.ny.us):

The following summarizes the Adirondack Park Agency's Fifth proposed rulemaking pursuant to its FGEIS, January 2001. The Summary is organized by subject area.

SUBJECT: "Involving Wetlands"

SECTIONS: 9 NYCRR 570.3, 573.3 and 4, and 578.3

STATUTORY AUTHORITY: Executive Law Article 27

Section 578.3(n) is proposed to be amended to delete "subdivision" under subsection one and to add a new section (3) which addresses when a subdivision or portion of a subdivision will require a wetland permit. This amendment completely revises Agency jurisdiction over subdivisions involving wetlands so as to include those lots, the creation of which may in fact adversely impact wetlands, but also to create criteria for a non-jurisdictional opportunity based on subdivision design. 570.3(x) is proposed to be amended to define "involving wetlands" under the APA Act as identical to "regulated activity" under the Agency regulations implementing the Freshwater Wetlands Act. Section 573.3 is amended to clarify that proposed wetland parcels being retained will be treated the same as those being sold, and to remove what would be conflicts with the new jurisdictional rules. Section 573.4 is amended to clarify how these rules affect the gift exemption provided by Executive Law Section 811(1)(c). Related to these amendments, the Agency also proposes a general permit which can be promptly issued based on specified parameters which are different than those established for the non-jurisdictional determination.

SUBJECT: Expansion of non-conforming shoreline structures

SECTION: 575.5 and 575.7

STATUTORY AUTHORITY: Executive Law Article 27

It is proposed that Section 575.5, subsection 2, of Agency regulations be amended to prohibit the expansion of pre-existing structures located within the shoreline setback area unless a variance is granted. This removes an exemption which gave non-conforming structures more opportunity to expand than existing structures. A companion Section 575.7, dealing with the shoreline setbacks for on-site wastewater treatment systems, is also proposed to be amended. A new subsection (c) will require that when a pre-existing non-conforming on-site wastewater treatment system is being replaced, it must be located to meet the shoreline setback requirements to the greatest extent possible. Also, a new subsection (d) is added to require a variance for the expansion of a non-conforming wastewater treatment system in conjunction with an actual or potential proposed increase in occupancy of the associated structure.

SUBJECT: Land division along roads or rights-of-way owned in fee

SECTION: 573.4

STATUTORY AUTHORITY: Executive Law Article 27

Section 573.4(b) is proposed to be removed. This will eliminate the automatic creation of separate parcels (available for sale without permit) due to the bisection of one large parcel by roads or rights-of-ways owned in fee, which division of lands often violated the overall intensity guidelines.

SUBJECT: "Floor Space"

SECTION: 570.3

STATUTORY AUTHORITY: Executive Law Article 27

A new Section 570.3(bb) is added to provide a definition for "square feet of floor space for a building". A new Section 570.3(bc) is added to define the "square footage of a structure other than a building".

SUBJECT: "Hunting and Fishing Cabin"

SECTION: 570.3

STATUTORY AUTHORITY: Executive Law Article 27

It is proposed to amend section 570.3(u) to create a new definition of "hunting and fishing cabin and private club structure". The definition focuses on physical attributes of the structure, but also retains the essential aspects of the existing definition relating to use requirements.

Text of proposed rule and any required statements and analyses may be obtained from:

John S. Banta, Counsel, Adirondack Park Agency, P.O. Box 99, Ray Brook, NY 12977, (518) 891–4050, email: [e-mail]

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.

Regulatory Impact Statement

Statutory authority:

The Adirondack Park Agency 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 authorities and procedures addressed in the revisions are: (1) Executive Law Article 27, Section 810(1)(a)(1); (1)(b)(1)(b); (1)(c)(1)(b); (1)(d)(1)(b); (1)(e)(1)(b) and ECL 24-0801 (subdivision "involving wetlands"); (2) Executive Law Article 27; Sections 806 and 811(5) (expansion of non-conforming shoreline structures); (3) Executive Law Article 27, Sections 805, 810 (subdivision of parcels of record with areas separated by rights-of-way owned in fee by another); (4) Executive Law Article 27, Section 810 ("floor space" and "hunting and fishing cabin").

Needs and benefits:

The Agency's analysis of regulation revision needs and benefits is grounded in the initial analysis undertaken by the Task Force on Expediting Adirondack Park Agency Operations and Simplifying its Procedures in its 1994 Report updated through consultation with the TAL and Agency Legal Affairs Committee deliberations and assessment of public comment. The Adirondack Park Agency www site, which now generates an average of 8,000 visits or 25,000 page views per week, also has been a primary vehicle for communication about potentials and priorities for regulatory revision.

a. "Floor space." This definition is considered essential to consistent application and enforcement of Agency permit jurisdiction based on size of structure. "Floor space" will be added to provide a definition for "square feet of floor space for a building." A new section 570.3(ah) will be added to define the "square footage of a structure other than a building."

The terms "floor space," "square feet of floor space" and "square footage" are all used in the Act to establish various jurisdictional thresholds; that is, the point at which an Agency permit is required for new land use and development in the Park. Definitions are required to ensure consistency.

b. "Hunting and fishing cabin". The definition will be revised with a new definition that focuses on physical attributes of the structure, but also retains the essential aspects of the existing definition relating to hunting and fishing use.

The Task Force recommended that the definition of "hunting and fishing cabin" be updated, a recommendation that was embraced by the Agency. The Agency, over the course of years since that time, has consulted with both environmental groups and the industrial forest landowners on the issue of updating the definition. The Agency believes the Legislature intended that "hunting and fishing cabins" be small and rustic in nature, with only occasional occupancy. The radical difference in legal consequences between a "hunting and fishing cabin" and a "single family dwelling" with regard to jurisdictional thresholds and the application of the APA Act overall intensity guidelines is only justified if the two are functionally and physically different. Under the APA Act, most hunting and fishing cabins are exempt from project review and will not be considered a principal building. They are most commonly jurisdictional in the Resource Management land use area, and then, only if they involve 500 or more square feet of floor space. In contrast, seasonal dwellings are treated the same as any single family dwelling and utilize one principal building privilege under the APA Act intensity guidelines. In contrast to hunting and fishing cabins, permits are required for single family dwellings when a certain threshold number is proposed, or when small lot sizes are involved, and in all cases in Resource Management. Specific language has been discussed with stake holders on a number of occasions. This dialogue included the Empire State Forest Products Association; woodland managers from Finch, Pruyn and Company, International Paper Company and others; and, separately, representatives of the principal Adirondack Park environmental advocacy organizations. The proposed definition is a clarification of current Agency practice and is consistent with current jurisdictional determinations regarding hunting and fishing cabins. Existing jurisdictional determinations will stand as written if there has been detrimental reliance.

The proposed definition is also consistent with the NYS Building Code definition of Group U structures, as confirmed by advice given by the Department of State Codes Office. The Building Code creates a similar bright line between dwellings which require a range of safety and sanitary improvements and occasional use (Group U) structures.

c. Subdivision "involving wetlands." A new definition for "involving wetlands," 9 NYCRR 570.3, and new wetland subdivision review criteria in sections 573.3 and 4, and 578.3 will conform jurisdiction under the two statutes in the Agency's wetland regulations resulting in more consistent application to different proposals on the ground, eliminating inadvertent incentives to "gerrymander" lot configurations to avoid Agency wetland subdivision jurisdiction, and minimizing spillover impacts to wetlands from immediately adjacent new subdivision lots.

The major goal to be addressed by the "involving wetlands" subdivision revisions is to tailor subdivision jurisdiction based on the presence of wetlands more closely to the potential for wetland impacts. A number of specific goals were identified by the Agency board based on advice and analysis from the TAL:

(1) Make the permit jurisdiction under the APA Act and the Freshwater Wetlands Act identical with regard to wetlands ("involving wetlands" to mean the same thing as "regulated activity").

(2) Assert the same jurisdiction over retained wetland lots as compared to wetland lots proposed for sale, to protect the wetland and remove incentive to gerrymander.

(3) Eliminate wetlands subdivision jurisdiction over large lots when certain criteria are met to avoid wetland impacts.

(4) Ensure wetland subdivision jurisdiction over wetland lots and lots adjacent to such lots, when standard criteria will not prevent wetland impacts.

(5) Encourage land developers to evaluate subdivision lot configurations as a whole in initial stages of design to create subdivisions that consider the long-term protection of wetlands.

(6) Reduce the enforcement workload from subdivisions recorded and undertaken involving lots with relatively small wetlands present, but not apparent to sellers or purchasers resulting in inadvertent violation of the present wetland subdivision rules where no significant wetland impact is involved.

d. Expansion of non-conforming shoreline structures. The proposed change to shoreline variance criteria in section 575.5 is motivated by Legal Affairs Committee guidance indicating a concern that the section is beyond the authority created by Section 811 of the APA Act. The change will bring Agency regulations into conformance with Executive Law Sections 806 and 811(5). The existing regulation allows significant expansions of structures already located within the shoreline setback area for which no statutory authority exists. Thus, the existing rule creates an anomaly which allows a non-conforming structure to increase its non-conformance without a variance, yet does not allow any non-conforming addition to a conforming structure.

Similarly, replacement of non-conforming on-site wastewater treatment systems is addressed by section 575.5 of the regulations. The present language allows non-jurisdictional replacement "in the immediate vicinity" of the non-conforming system provided the existing non-conformance is not increased. Under this regulation, the Agency has applied the same lateral expansion rule as we currently apply to dwellings: so long as the replacement is no closer to the water than the pre-existing system, it does not increase the non-conformance. However, there is no defensible reason to allow replacements in kind in the existing non-conforming location when other more conforming options are available. The proposed regulation does not create a mandate for replacement of a non-conforming system, but only requires use of the best option available under the circumstances when the owner chooses to replace or update his system. The proposal, therefore, recognizes the landowner's statutory option to replace in kind in the same location. Finally, expansions of non-conforming wastewater treatment systems in conjunction with an actual or potential proposed increase in occupancy of the structure should not be allowed without a variance unless the system is brought into compliance with the shoreline setback requirements and Appendix Q4.

e. Subdivision of parcels of record with areas separated by rights-of-way owned in fee by another. Revisions to 9 NYCRR 573.4(b) which allow the lawful sale without an Agency permit of a portion of a merged¹ ownership, if the parcel being conveyed is the entirety of the landholding located on one side of a road or right-of-way owned in fee, typically a highway or power line right-of-way, is also motivated by direction from the Legal Affairs Committee and a number of jurisdictional inquiries to the Agency which pointed out anomalies in the allocation of principal building privileges under the APA Act intensity guidelines. The regulation provides that such conveyance is not a "subdivision" under the APA Act.

The existing regulation does not address the application of the APA Act intensity guidelines when either the conveyed or retained portions of the original ownership are substandard in size; that is, would violate the APA Act intensity guidelines. (The intensity guidelines dictate the total number of principal building privileges allowed on a given parcel based on total acreage.) The practice implemented with the existing regulation allows the creation of substandard sized lots without permits, and, therefore, also allows additional principal buildings that would not have been possible applying the APA Act intensity guidelines and the creation of potentially unbuildable lots as artifacts of road relocation or the separation of a residence from shoreline by a public road. A resulting problem is that in the case where the subsequent development requires a permit, the Agency cannot make the necessary findings regarding the APA Act overall intensity guidelines for the lot created by a road or right-of-way (i.e., the lot is neither "pre-existing" nor of a sufficient size to meet the intensity criterion), so the development cannot be approved. In such cases, it would be better to review the creation of the substandard lots in the first instance to ensure all such lots have building potential.

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¹ Pursuant to section 811(1)(a) of the APA Act and 9 NYCRR 573.4(i) all adjacent lands owned by one party as of the May 22, 1973 Park Plan enactment date are merged as a matter of law, and each such “merged” lot is entitled to at least one single family dwelling or mobile home.

Regulatory Flexibility Analysis

The Adirondack Park Agency has determined that the proposed regulatory amendments are not expected to impose any new reporting, record keeping or other compliance requirements on small businesses or local governments.

Further, there are no initial costs on small businesses or local governments for compliance with these rules. Also, these proposed rules are not expected to have any adverse economic impact on small businesses or rural areas or impose any reporting, record keeping or other compliance requirements on public or private entities in rural areas.

The proposed amendments are not expected to have any adverse impact upon regulated small businesses nor upon persons or businesses located in or operating in rural areas nor will it have an adverse impact upon jobs or employment opportunities.

Rural Area Flexibility Analysis

The Adirondack Park Agency has determined that the proposed regulatory amendments are not expected to impose any reporting, record keeping or other compliance requirements on small businesses or rural areas.

Further, they are also not expected to have any adverse economic impact on small businesses or rural areas or impose any reporting, record keeping or other compliance requirements on public or private entities in rural areas.

The proposed amendments are not expected to have any adverse impact upon regulated small businesses nor upon persons or businesses located in or operating in rural areas nor will it have an adverse impact upon jobs or employment opportunities.

Discussion: No reporting requirements are imposed by any of the proposed regulations.

Job Impact Statement

A formal job impact statement is not submitted for these proposed regulatory amendments to the Adirondack Park Agency's regulations as these amendments are not expected to create any substantial adverse impact on jobs and employment opportunities in the Adirondack Park. These amendments do not make any significant substantive changes to the regulations, and will not impact employment opportunities in the Park, as explained below. The discussion is by subject area addressed, which is a more informative way to present the material.

"Involving wetlands." This proposal re-arranges Agency jurisdiction over subdivisions involving wetlands, and provides direction as to how to design a subdivision so as to become non-jurisdictional. These changes will likely create equal if not more opportunity for non-jurisdictional subdivisions as compared to the existing regulations. No change in employment opportunities is expected.

Expansion of non-conforming shoreline structures. This proposal would bring Agency regulations into conformance with the APA Act, and eliminates the existing anomalies which now exist that allow non-conforming shoreline structures to be significantly expanded within the setback area, while structures in compliance cannot expand at all within the shoreline setback area. The proposed rule will change how non-conforming structures may expand. This may eliminate certain expansions in favor of new construction outside the setback area. No change in employment opportunities is expected.

Land division along roads or right-of-ways owned in fee. The proposal is to remove an existing regulation which deems certain land divisions to not be "subdivisions" for purposes of Agency jurisdiction. Divisions of land along roads or right-of-ways owned in fee would be required to conform to the same jurisdictional rules applicable to all other land divisions. This may reduce the potential for subdivision which now exists for some parcels. This is not expected to impact the ongoing development in the Park in any significant way, and will, therefore, not impact employment opportunities.

Square feet of floor space and square footage. The proposed regulation provides definitions for these terms. The terms are used in various parts of the Act, and the definitions will ensure consistent application. No change in employment opportunities is expected from these proposed amendments.

"Hunting and fishing cabin." The proposed regulation establishes a clear definition for this land use, consistent with existing practice. The proposal is not expected to change the number of hunting and fishing cabins within the Park and will not have any impact on employment opportunities.