PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 570.3(c) and (j) of Title 9 NYCRR.
Statutory authority:
Adirondack Park Agency Act, Executive Law, art. 27
Subject:
Boathouse and Dock definitions.
Purpose:
To provide clarity and better environmental protection.
Text of final rule:
Subsection (c) of Section 570.3 is amended as follows:
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[.] in that the roof rafters rest on the top plate of the first floor wall, and all rigid roof surfaces have a minimum pitch of four on twelve, or, alternatively, one flat roof covers the entire structure; and
(7) has a footprint of 1200 square feet or less measured at the exterior walls (or in the absence of exterior walls, at the perimeter of the roof), and a height of fifteen feet or less. For the purpose of this definition, the height of a boathouse shall be measured from the surface of the floor serving the boat berths to the highest point of the structure. The dimensional requirements specified herein shall not apply to a covered structure for berthing boats located within the Lake George Park, provided the structure is built or modified in accordance with a permit from the Lake George Park Commission and is located fully lakeward of the mean high-water mark of Lake George.
Subsection (j) of Section 570.3 is amended as follows:
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 permanent supporting structure located within the applicable setback area which is used to suspend a dock above water level for storage by means of a hoist or other mechanical device is limited to not more than one hundred square feet, measured in the aggregate if more than one such supporting structure is used. A dock must remain parallel with the water when suspended for storage, unless the size of the total structure does not exceed one hundred square feet. Mechanisms necessary to hoist or suspend the dock must be temporary and must be removed during the boating season.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 570.3(c) and (j).
Text of rule and any required statements and analyses may be obtained from:
John S. Banta, Counsel, NYS Adirondack Park Agency, PO Box 99, Ray Brook, NY 12977, (518) 891-4050, email: aparule@gw.dec.state.ny.us
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not required as the final rules do not contain substantial changes from the proposed rules. The same needs and benefits are addressed by the final rules. Any changes made to the final rules in response to public comment reduced the regulatory impact of the rules as compared to the proposed rules. They do not add any new costs or paperwork. The new boathouse definition reduces duplication of government regulation by allowing boathouses permitted by the Lake George Park Commission to qualify as “boathouses” exempt from variance requirements under the Adirondack Park Agency Act.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis is not required as the final rules do not contain substantial changes from the proposed rules. Any changes made to the final rules in response to public comment will provide increased flexibility and less economic impact as compared to the proposed rules. The changes will not impose any adverse economic impact or reporting, record-keeping or other requirements on small businesses or local governments.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not required as the final rules do not contain substantial changes from the proposed rules. Any changes made to the final rules in response to public comment will provide increased flexibility and less economic impact as compared to the proposed rules. The changes will not impose any adverse impact or reporting, record-keeping or other compliance requirements on public or private entities in rural areas.
Revised Job Impact Statement
A revised Job Impact Statement is not required as the final rules do not contain substantial changes from the proposed rules. Any changes made to the final rules in response to public comment will provide increased flexibility and less economic impact as compared to the proposed rules. The changes will not impose any negative impact on jobs or employment opportunities.
Assessment of Public Comment
General Comments
Generally, people understood and supported the need for definitions for the terms "boathouse" and "dock," both of which are the only structures exempt from the shoreline setback requirements of Executive Law § 806. Public commentary acknowledged the general desire of landowners to have structures which provide recreational space unrelated to boating immediately on the shoreline.
Boathouse
1. Square feet size limit
There were numerous comments that suggested the proposed 900 square foot size limitation was too confining and that either no limit or a larger limit would be more appropriate. Specific letters suggested 1000, 1200 and 1500 square feet and supported imposition of a specific limit, though larger. Other letters simply opposed any size limit.
There was also substantial comment regarding the manner in which the Lake George Park Commission size limit for covered docks is calculated and imposed. It involves a limit on the square feet of dock surface area, generally 700 square feet absent extensive shoreline. Some or all of the dock space can be covered with a roof or deck, but there is a height limit of 16 feet above the mean high water (MHW) level. The Lake George Park Commission criteria equate to a boathouse which, at a maximum, can be approximately 1200-1500 square feet in size depending on the configuration of the dock.
Comment also suggested that small size limits lead to shoreline clutter (small paddle craft and other water recreation gear scattered on the shoreline or the proliferation of small shoreline racks or shoreline sheds). The argument is that this equipment would be better accommodated inside a boathouse structure.
The final rule increases the size limitation from 900 square feet (as originally proposed) to 1200 square feet. This small increase addresses public comments. It will avoid the need for variance proceedings for typical two and three stall boathouse structures, and provide more opportunity for inside storage space for boating accessories, the two most prevalent objections to the proposed 900 square foot limit.
It is essential to maintain a square foot limitation in the definition to avoid pressure to design for multi-use "attic" space. The area of the "attic" is a function of the square footage of the first floor and the allowable height. In the alternative, the height limit could be lowered to prevent any usable space with headroom above the first floor, but that would severely curtail architectural designs and reasonable roof pitch to shed snow load.
2. Height limit
There was relatively little comment on the proposed 15 foot height limit. It was noted that the measurement from the dock surface of the boat berth area was a practical method to measure the height, and it equates to 16-18 feet above the MHW depending on design and circumstances. Some of the comment on roof pitch also suggested that the height limit is both confining and may not be practical where a roof is intended to shed particularly heavy snow loads which are part of building specifications in some areas of the Park.
The height limit for the boathouse structure remains critical, along with structure size and roof pitch, to ensure that unlawful multi-use structures are not constructed in the shoreline setback area. No Agency definition of boathouse to date, even with limitations on the internal components of the structure, has prevented large multi-use structures on Adirondack shorelines contrary to the direction of Section 806. These structures, standing alone, are not allowed in the shoreline setback area unless a variance is granted. The Agency has found consistent implementation very difficult under any of the definitions for the term "boathouse" to date.
Adirondack snow load can be accommodated within a 15 foot height limit with the use of appropriately sized structural materials.
3. Roof pitch requirement
Some comments reiterated points raised in the 2002 rule making, that a specific roof pitch and height limit constrain design, both related to engineering for snow load and also to architectural interest. However, the roof pitch requirement does not preclude steeper roofs; it is a minimum pitch requirement.
Within the Lake George basin, comments in the hearing record were that different forms of flat roofs are the prevalent design for boathouses, due to the Lake George Park Commission regulations which impose limits on dock area and the height of any dock cover. Moreover, within the Lake George Park, other agencies such as the Department of Environmental Conservation, the Office of General Services and the Army Corps of Engineers, may also have jurisdiction over such structures. Public comments suggested that the many regulations cause confusion and significant complexity and delays.
The final rule responds to these public comments. It does not differ significantly from the Lake George Park Commission regulations, and automatically qualifies covered docks which are permitted by the Lake George Park Commission as "boathouses" in compliance with Section 806 of the APA Act.
Another common comment was that a flat roof has no more environmental impact than a pitched roof. With regard to impacts due to runoff, the Agency agrees. It was also argued that the ability to use the roof as a deck allows for the retention of shoreline vegetation that might otherwise be removed to create sun space on the shoreline. Since the preservation of shoreline vegetation is crucial to the protection of water quality and the natural character of the shoreline, the Agency concludes that it should not preclude flat roofs on a boathouse. However, the size limit for the square footage of the structure will moderate secondary impacts from use. Accordingly, while the final rule retains the roof pitch requirement, it allows a flat roof on a single-story boathouse in the situation where the entire roof of the structure is flat.
4. Economic impacts
There were many comments that alleged non-specific, adverse economic consequences from Agency regulations. At the Ray Brook hearing, more specific concerns were voiced by contractors and architects who said that the size and roof pitch restrictions would affect the resulting designs and innovation, and restrict their potential business. In the Lake George hearing and related comment letters, there were specific assertions that a prohibition of flat roof decks would affect property values. One business active in building docks and boathouses in Lake George indicated that roof pitch requirements prohibiting new flat roofs would make recent investments in models and marketing materials specific to the Lake George area worthless.
The final rule is narrowly circumscribed to address the issue of large structures designed to accommodate multi-use spaces. It does not prohibit boathouses or flat roofs on bathouses. It provides a 1200 square foot space for three large boat berths and significant storage area. It does not prohibit more than one boathouse (although some municipalities do so), and variances may be granted where appropriate. Hence, the Agency concludes that there will be no economic impact from the revised proposal. Moreover, the adjustments to the boathouse definition in 2002, which provided a significant definitional change, had no discernible impact on the number of boathouse construction and repair projects undertaken in the Park.
Comments from builders recounting recent experience with the current economic downturn did not indicate any specific correlation with the regulations proposed in this rule making.
The Agency's deference to permits issued by the Lake George Park Commission for boat berthing structures addresses the comments relating to Lake George.
5. Comments about specific towns, lakes or circumstances like water-access-only lots
a. Boat access lots have special needs.
Several comment letters made a point that the proposed rule was too confining when a camp is exclusively accessible by water, without specific alternatives suggested. The now-proposed larger size would accommodate additional dock and boathouse access for such situations.
b. Towns with approved local land use programs have an Agency-approved definition already.
Several responses suggested that the proposal is potentially inconsistent with existing definitions in approved local land use programs, particularly in the Lake George region and in Warren County. The Agency will work with approved local land use programs to conform to the updated standards where appropriate. Several of these programs are more restrictive than the current proposed rule.
c. The Lake George Park Commission provides a definition and a permit process for "dock" and covered boat storage ("boathouse") in State regulation for Lake George.
The Lake George Park Commission recommended incorporating a reference that would accept structures meeting its requirements for docks and covered docks as meeting the APA Act requirements, as an alternative to the structural specifications in the proposed revisions. The Agency has accepted this suggestion in its final rule.
d. "Great Camps" confer special character to Adirondack lakes with boathouses that, if built now, would be prohibited by the rule; the variance process is a punishing procedure for authorization of a non-compliant boathouse structure. These comments essentially disagree with the underlying and long-standing regulatory assumption that a boathouse should be exclusively for the storage of boats, pointing out the special character added by large multi-use boathouses on some Adirondack lakes. It is true that the enactment of the APA Act does foreclose the unfettered development options available before the Act.
Dock
All but one of the comments on the proposed dock definition revision were focused on the Lake George basin. The rule is intended to prohibit "articulating" docks which can be winter-stored by angled suspension without any structure in the water to be affected by ice movement.
Many comments pointed out that the removal or suspension of docks above the water surface is the only practical mechanism for areas in Lake George where wind-driven ice destroys any in-lake structures during the winter. Moreover, in some cases, creation of an on-shore storage area would involve significant destruction of vegetation and environmental manipulation. Other Lake George comments suggested that the inability to remove or suspend structures above the water encourages use of bubblers that have other environmental impacts and safety consequences for winter recreation on the ice. These comments expressed a preference for the suspension system in certain circumstances.
One comment also pointed out that the definition appears to prohibit canoe/kayak launch ramps sloping down, not horizontal to the water, and otherwise meeting Agency "dock" criteria. These are a common component of a boathouse, providing direct access for small watercraft. They would be an acceptable independent component of a dock if less than 100 square feet in size.
The final rule retains the prohibition of new structures which are suspended in an angled position over the water, which is important to minimize the environmental impacts of such structures. However, in response to public comment the final definition allows the suspension of dock structures, as long as they remain horizontal with the water. The final rule also clarifies that the in-ground structures necessary for suspension are not part of the dock, cannot exceed 100 square feet, and that multiple structures will be aggregated. This is necessary to minimize the impermeable surfaces within the shoreline setback area, an important component for shoreline protection and water quality.
The final rule will have few impacts on prospective activities and no impact on existing dock structures.
