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Changes to the town code adopted in 2015 had 'unintended consequences," including making rules intended for properties on bluffs applying to properties on creeks. Photo: Katharine Schroeder

Revision of shoreline setback rules goes back to the drawing board

An effort to clarify town code provisions governing setbacks from water bodies is going back to the drawing board after a public hearing last week.

The town is attempting to fix a code revision undertaken in late 2015 that had some unintended consequences, Councilwoman Jill Doherty said at the outset of Tuesday’s public hearing.

The 2015 code changes applied to bodies of water the town board didn’t intend to affect, including every creek in the town, Doherty said. The proposed revisions aired last week were offered to limit application of the setback requirements to properties on the L.I. Sound, Fishers Island Sound, Block Island Sound, Peconic Bay and Gardiners Bay.

The new revisions were also intended to clarify the difference between a “bluff” and a “bank” and generally clean up the code and update it, said Doherty, who served as a town trustee prior to being elected councilwoman.

“When we made the changes the words bluff and bank were made interchangeable,” Supervisor Scott Russell added. “It was a mistake we made that we felt put undue pressure on property owners.”

But practitioners who help property owners navigate the permit system in town hall told the board that the changes didn’t go far enough to clarify the applicable rules for waterfront landowners. Engineering and environmental consultants and an attorney asked the board to do more, pointing out additional terms that required definitions and suggesting other changes that would clarify its terms and make appeals to the ZBA less frequent.

Robert Herrmann of En-Consultants in Southampton asked the board to look again at the definitions in the zoning and wetlands codes.

Homes on a bluff in Mattituck. Photo: Katharine Schroeder

A “precipitous slope,” for example, should relate to the distance from the toe of a bluff to the top of the bluff, not the face of the bluff as the code now states, Herrmann said.

“What criteria were used to come up with these numbers?” he asked. “Typically a true bluff has a slope cluster to 40 percent and true bluffs are usually higher than 10 feet…If you keep it that low I’m afraid you’ll probably still have the problem you’re trying to eliminate.

Herrmann noted that the code uses terms like “top of the bluff” and “toe of the bluff” without defining them. “If you’re going to ask people to quantify based on these terms, you have to define them,” he said.

“It’s fantastic that you’re doing this,” Herrmann said, “but really critical that you cover these. It’s going to come up. It has been coming up. It’s just going haywire since you made the change at the end of 2015,” he said. “You could take a bank that’s as tall as this podium,” he said, “and call it a bluff. Then the trustees on a case-by-case basis can decide if they have another 100 feet of jurisdiction.”

Attorney Patricia Moore advocated for the use of an “average setback” to establish a standard in keeping with the neighborhood.

“You should be able to develop in line with the rest of your community,” Moore told the board. “That would ease up or eliminate variances that are necessary.”

“It’s important to create some form of relief. If you’re in a completely developed community, you should have the same standards,” Moore said. “When I go to the ZBA I have to ask for an 80-percent variance when everyone around the property has a 50-foot setback. It’s very difficult. Create an average setback rule and this problem would be eliminated.”

She also criticized what she called duplication in requiring the trustees to review everything that affects all waterfront properties.

Engineer Joseph Boschetti concurred and advocated leaving the application of code setbacks from bluffs a matter for the building department.

“Steep bluffs should not be a subject for the trustees. They have jurisdiction over wetlands. This is already part of the state building code and should be enforced by the building department not by the trustees or the zoning board,” Boschetti said.

Marie Beninati, chairperson of SoutholdVOICE, an organization that advocates for waterfront property owners, said her group held a public forum in November it called “unintended consequences” to focus on the impacts of the 2015 code amendments.

“We had more than 100 people attend,” Beninati said in an interview today. Among them were town officials, who listened to residents concerns and moved forward to clarify the code.

“The town didn’t intend to create a situation where most property owners would have to go for a variance for everything,” Beninati said.

“At SoutholdVOICE we feel that as stated by some of the experts who were there the code needs to be tweaked a little bit more because definitions like top of the bluff and toe of the bluff are important to help people know what they have to comply with — as opposed to going into never-never land because it’s not defined,” she said.

“People have had to go to the ZBA just to make repairs,” Beninati said. “Some of the setbacks need to be addressed as well, taking the surrounding community into account. It’s really a question of fairness.”

Beninati said her organization appreciated the town board responding to the concerns of the people.

The town board closed the hearing and withdrew the resolution adopting the new code revisions. Once the code is further reworked, another public hearing will be scheduled, Russell said.