N.Y. Comp. Codes R. & Regs. tit. 21 § 2350.3

Current through Register Vol. 46, No. 51, December 18, 2024

Section 2350.3 - Policies and standards

(a)Groundwater. Nitrate-nitrogen, a contaminant which emanates from numerous types of land uses, is a recognized indicator of groundwater quality. Primary factors determining the concentration of nitrogen loading are the area of fertilized turf and the density of dwelling units generating sewage effluent. The Suffolk County Department of Health Services abides by the State of New York nitrate-nitrogen standard for drinking water from public wells of 10 ppm. The use of a 6 ppm standard provides a 90 percent confidence level that the NYS standard of 10 ppm will not be exceeded beneath any project site. Development proposals must not exceed the nitrogen loading factor of 6 ppm on the site. All development proposals must conform to article 6 of the Suffolk County Sanitary Code. Sewage treatment plants will be recommended for subdivisions in Hydrogeologic Zones III, V, and VI where the proposed overall density is greater than 1 unit per acre and the size of the proposed development justifies their use.

(b)Wetlands. Freshwater wetlands which exist within the Pine Barrens are considered to be an important natural resource providing for flood and erosion control, the filtering of contaminants and sediments from storm water runoff, and the habitat for plants and wildlife. Development proposals where freshwater wetlands exist must be protected by a minimum 100 foot non- disturbance buffer area (measured horizontally from the wetland edge as mapped by the New York State Department of Environmental Conservation, field delineation or local ordinance). Buffer areas shall be delineated on the plan, and the commission may impose covenants to protect these areas. The commission may require setbacks from documented areas of seasonal high groundwater less than four feet from the surface, or further setbacks where the 100 foot non- disturbance buffer area is insufficient to protect the wetlands. Tidal wetlands existing within the marine environment bordering portions of the Pine Barrens Zone are equally valuable natural resources. These wetlands support the reproduction of finfish and shellfish, provide habitat for waterfowl, and contribute a scenic quality that supports recreational economies. Development proposals where tidal wetlands exist must be protected by a minimum 100 foot non-disturbance area (measured horizontally from the identified wetland edge). The commission may require further setbacks where the 100 foot non-disturbance area is insufficient to protect the tidal wetlands.

(c)Surface waters. Surface waters, which include freshwater ponds, lakes, streams, rivers, and creeks, occur throughout the Pine Barrens. These are considered to be resources of significant value in economic, aesthetic and ecological terms. Their protection is judged to be vital to the dynamics of the Pine Barrens. Development proposals where surface waters exist must be protected by a 100 foot non-disturbance buffer (measured horizontally from the water or wetland edge, whichever is more protective). The commission may require setbacks from documented seasonal surface waters, or further setbacks where the 100 foot non-disturbance buffer is insufficient to protect the integrity of a surface waterbody in terms of its quality, quantity, or natural function.

(d)Rare and endangered species and unique natural communities. The Pine Barrens ecosystem encompasses several species of rare, endangered, and threatened animals and plants, as well as species of special concern, including the buck moth, tiger salamander, and lady slipper. The State of New York has identified such species and has enacted laws to protect their number and habitat. The NYS Natural Heritage Program has also identified unique natural communities and habitats of special concern. Development shall not have a significant negative impact on a habitat essential to those species identified by New York State maintained lists as rare, endangered, or threatened, nor on natural communities classified by the NYS Natural Heritage Program as G1, G2, G3 or S1, S2 or S3.

(e)Native vegetation disturbance. The vegetation association that defines or characterizes the Pine Barrens includes pitch pines and various species of oak trees, plus numerous understory and ground cover plants such as blueberry and bearberry and grasses such as prairie bluestem and indian grass. Excessive, and often unnecessary, clearing of this native vegetation can result in severe soil erosion, excessive stormwater runoff, and destroyed plant and wildlife habitat. Furthermore, the replacement of native vegetation by plants and lawns requiring artificial fertilization increases the risk of groundwater contamination. See Table 2 (subdivision [e] of this section) for suggested native species, as well as specific nonnative species which are not recommended. It is the policy of the commission to encourage minimal clearing of native vegetation. Development proposals must not exceed the clearance standards in Table 1 (subdivision [e] of this section). These percentages shall be taken over the total site inclusive of roads, building sites and drainage structures. The clearance standard that would be applied to project site if developed under the existing residential zoning category, should be applied if the proposal involves multi-family units, attached housing, clustering or modified lot designs. Submissions to the commission for subdivisions shall contain calculations for clearing limits. These limits shall become part of the filed map. Furthermore, subdivision and site design must support preservation of natural vegetation in large unbroken blocks that allow contiguous open spaces to be established when adjacent parcels are developed.

TABLE 1 - Clearance Standards

Total site clearance including lots, roads, drainage and other improvements.

Category
Residential zoning
Lot size Acreage	Maximum site clearance
10,000 s.f. - 1/4 acre	90 percent
15,000 s.f. - 1/3 acre	70 percent
20,000 s.f. - 1/2 acre	60 percent
30,000 s.f. - 2/3 acre	58 percent
40,000 s.f. - 1 acre	57 percent
60,000 s.f. - 11/2 acre	46 percent
80,000 s.f. - 2 acres	35 percent
120,000 s.f. - 3 acres	30 percent
120,000-200,000 + s.f. -4 - 5 + acres	25 percent
Commercial industrial	65 percent
Other or mixed use	To be determined by the commission

Note: In calculating the percentage of land cleared, the preserved areas in a development should be good quality native vegetation. These are maximum clearance standards, and may be lower due to consideration of other standards, especially for preservation of rare or endangered species.

Scientific Name	Common Name
(In alphabetic order)
Recommended Native Plants
Andropogon gerardi	Big bluestem
Andropogon scoparius	Little bluestem
Betula lenta	White birch
Betula populifolia	Grey birch
Celtis occidentalis	Hackberry
Dennstaedtia punctilobula	Hay-scented fern
Epigea repens	Trailing arbustus
Hamamelis virginia	Witch hazel
Ilex glabra	Inkberry
Ilex opaca	American holly
Myrica pennsylvanica	Northern bayberry
Parthenocissus quinquefolia	Virginia creeper
Pinus rigida	Pitch pine
Prunus maritima	Beach plum
Populus tremuloides	Quaking aspen
Prunus serotina	Black cherry
Pteridum aquilinum	Bracken fern
Quercus alba	White oak
Quercus coccinea	Scarlet oak
Quercus rubrum	Red oak
Rhus copalina	Winged sumac
Rhus glabra	Smooth sumac
Rhus typhina	Staghorn sumac
Rosa virginiana	Virginia rose
Rubus allegheniensis	Northern blackberry
Salix discolor	Pussy willow
Sassifras albidum	Sassifras
Solidago species	Goldenrod
Spirea latifolia	Spirea
Vaccinium angustifolium	Low-bush blueberry
Vaccinium corymbosum	High-bush blueberry
Invasive, Nonnative Plants Specifically Not Recommended
Acer platanoides	Norway maple
Berberis thunbergii	Japanese barberry
Celastrus orbiculatus	Asiatic bittersweet
Coronilla varia	Crown vetch
Eleagnus umbellata	Autumn olive
Hibiscus syriacus	Rose of sharon
Ligustrum sinense	Chinese privet
Lonicera japonica	Japanese honeysuckle
Lonicera maackii	Amur honeysuckle
Lythrum salicaria	Purple loosestrife
Pinus nigra	Black pine
Polygonum cuspidatum	Bamboo
Rosa multiflora	Multiflora rose

(f)Fertilized vegetation and landscaping.

The 208 Wastewater Treatment Management Plan indicated that fertilizers are a significant source of nitrogen and phosphorous contamination to ground and surface waters. Because of low natural fertility, soils common to the Pine Barrens (Carver, Haven, Plymouth, and Riverhead) require both irrigation and fertilizer application for establishment and maintenance of turf and non-native vegetation. As native Pine Barrens vegetation is replaced with turf through residential development, increased contamination may be expected along with a general change in the ecosystem. The 205J Special Groundwater Protection Areas study discussed limiting the amount of land devoted to turf as a way to limit the amount of nitrogen leached from low density residential development (greater than or equal to one acre/unit). It is the policy of the commission to discourage extensive establishment of turf and fertilizer dependent non-native vegetation. Development plans may place no more than 15 percent of each not in vegetation requiring fertilization or 15 percent of the entire site for attached residential, commercial or industrial development. Table 2 (subdivision [e] of this section) should be consulted for examples of vegetation species appropriate to the Central Pine Barrens Area.

(g)Steep slopes.

Disturbance of, and construction on, steep slopes within the Pine Barrens can require considerable removal of native vegetation resulting in excessive surface water runoff and severe soil erosion. Additionally, steep sloped areas are subject to more rapid spread of wildfire than flat ground. All land clearing and construction must be confined to sites where slopes are no greater than 15 percent. The commission will require that clearing envelopes be drawn for lots within a subdivision containing slopes greater than 10 percent. These envelopes should be located on the lots to minimize the disturbance of those slopes to the greatest extent possible. Construction of homes, roadways and private driveways on slopes greater than 10 percent may be approved if technical review shows that sufficient care has been taken in the design of stabilization measures, erosion control practices and structures so as to mitigate any negative environmental impacts. The commission review would be facilitated if submissions contain a slope analysis showing slopes 0-10 percent, 11-15 percent and 15 percent and greater. In areas with steep slopes, slope analysis maps may be required. This can be done with cross hatching or shading on the site plan for the appropriate areas. In addition, erosion and sediment control plans will be required in steeply sloped areas.

(h)Runoff water.

Development of lands within the Pine Barrens inevitably results in an increase of runoff water following precipitation. Runoff water originating from the roofs of buildings and from driveways is usually discharge directly to subsurface dry wells situated on the building lot. However, the great volume of runoff water originating from paved streets and roads is usually discharged by pipes into large open recharge basins or sumps. These basins may cover several acres and require the removal of much native vegetation to the detriment of the site's ecology and aesthetics. The commission advocates the use of natural recharge areas and/or drainage system designs that will cause minimum disturbance of the site. The commission will only approve large excavated recharge basins where the use of natural swales and depressions and/or the installation of perforated pipe, vertical drains or dry wells is not practicable. The development plans must provide that all stormwater runoff originating from development on the property will be recharged on site. Ponds should only be created in place of recharge basins, not for aesthetic purposes. They should be constructed and planted to create a shallow marsh habitat to filter runoff to the maximum extent possible. A management plan should be developed which requires minimal augmentation and attempts to balance evaporation with size limitation of the pond. Further, the commission will approve construction within natural swales and depressions where runoff and recharge naturally occurs only if the construction enhances the natural drainage and recharge functions.

(i)Agriculture and horticulture.

Scattered throughout the Pine Barrens are parcels devoted to agriculture and horticulture uses. Some of the parcels may be entirely devoted to these uses, whereas others may not. A certification of non-development will be required by the applicant where it is proposed to commence or expand agricultural or horticultural uses. Since there may be some adverse impacts associated with these uses, the commission will use the following standards to guide its recommendations pursuant to SEQR. For parcels that are entirely in active agriculture or horticulture and within Hydrogeologic Zones III and V and contain prime agricultural soils, the commission recommends the clustering of structures on the poorest soils and retention of the remaining prime areas for agricultural or horticultural use of a nature that will cause minimal impact on the groundwater quality. For those parcels which are not completely devoted to agricultural and horticultural uses, the commission, in its review of development proposals, will recommend balancing the continuation of the agricultural and horticultural uses with the protection of critical resource areas. Reclaiming of areas formerly used for agriculture and horticulture is acceptable, provided no local tree cutting or vegetation protection ordinances are violated, and that best management practices for the use of fertilizer or pesticide, including integrated pest management, are employed.

(j)Rezoning of land.

While no amendments to local zoning laws and regulations shall take effect during the interim period, the commission may review some proposed actions and make comments pursuant to special environmental quality review. Following are the guidelines the commission will use to further the plan goals for the compatible growth area until completion of the land use plan. The protection of groundwater quality and native vegetation/habitat are two paramount goals of the commission. Both of these goals may be threatened by rezonings that increase density or intensity of land use (such as rezoning from large-lot single-family residential to high-density multiple-family residential or rezoning from low-density residential to commercial or industrial use). Conversely, opportunities to transfer development rights or encourage appropriate development patterns may be lost with a premature rezoning. The commission may recommend disapproval of any rezoning applications that increase density or intensity of use, unless applicants are able to demonstrate that:

(1) rezoning will not have a greater threat to groundwater quality and/or native vegetation/habitat than existing zoning; or

(2) that the rezoning will remove development from critical resource areas especially within the core preservation area.

(k)Commercial and industrial development.

Throughout the compatible growth area are numerous parcels of land that are zoned for industrial use. Future development of these parcels by industries that store and use toxic and hazardous chemicals could increase groundwater contamination. The commission will encourage the development of vacant industrial sites within the compatible growth area to less intensive/less potentially hazardous uses and the relocation of industrial development outside the Central Pine Barrens in cases where appropriate infrastructure does not exist. All industrial development must comply with the provisions of articles 7 and 12 of the Suffolk County Sanitary Code, and the other interim standards contained herein.

(l)Clustering.

The use of the clustering technique within the Pine Barrens will be encouraged in order to preserve open space, preserve habitats, protect critical resource areas, attract non-contiguous development rights and values, improve infrastructure, and further the goals of the overall Central Pine Barrens area. The developer should contact the commission for assistance prior to designing the site plan. It is the recommendation of the commission that open space resulting from clustering be protected through the use of covenants. Clustering can be used in site planning to minimize disturbance of sensitive portions of the site. The following should be used as guidelines in clustering residential subdivisions:

(1) Wooded Parcel - with slopes less than 10 percent on parcel.

Recommendations - The development on a parcel, if adjacent to other parcels to be reviewed or adjacent to existing dedicated open space, should be clustered to take advantage of increasing natural open space.

(2) Wooded Parcel - more than 50 percent of parcel has slopes less than 10 percent; remainder of parcel has slopes greater than 10 percent.

Recommendations - Lots should be clustered on slopes less than 10 percent.

(3) Wooded or Field - with slopes greater than 10 percent throughout site.

Recommendations - Cluster lots to keep building envelopes (per town zoning) on slopes less than 10 percent.

Roads and driveways should be designed to minimize the traversing of slopes of greater than 10 percent and to minimize cuts and fills. Details of retaining walls and erosion control structures shall be provided for roads and driveways which transverse slopes greater than 10 percent. No retaining wall or erosion control structure shall be constructed beyond the right-of-way or eight feet beyond the edge of roadway whichever is less. For private driveways the limits of retaining walls and erosion control structures shall conform to the clearing limits set forth by the commission. Any subdivision applications which contain building envelopes with slopes greater than 10 percent or which, based on technical review, contain extensive use of retaining walls for the roadway system, may require a draft environmental impact statement to analyze the impact of erosion and the changing of the character of the land. The commission may disapprove an application where a tighter cluster than proposed is possible and preferable.

(m)Coordinated design.

Comprehensive, coordinated planning and design of development proposals, especially residential subdivisions, within the Pine Barrens is essential to ensure maximum preservation of open space and habitat linkages. Frequently, landowners design their subdivisions without adequate consideration of the existing development and/or of future plans for the adjacent parcels. This can result in inefficient road patterns that may require unnecessary clearing and lot layout which may prevent the preservation of large, unbroken blocks of open space. Also opportunities may be lost to coordinate the transference of development rights and values between parcels. The developers should contact the staff of the town for input on coordination of open spaces between adjacent parcels, and other pending development plans. It is the policy of the commission to review all development proposals for individual parcels in light of the potential or existing layout of all adjacent parcels to ensure that the designs are coordinated and that minimal clearing and maximum open space preservation can be achieved. The owners of parcels are urged to consult with the town planning personnel before designing their subdivisions.

(n)Open space management.

The preservation of open spaces and the conservation of native vegetation within the Pine Barrens is a central goal of the commission. Such open spaces may be configured as buffer areas, massing of large contiguous parcels, slope management areas, or wetland protection areas. However, proper management of these areas is essential in order to protect open spaces from illegal dumping, clearing, motor vehicle trespass and other abuses of the environment. The commission may recommend that proposed open space be protected with covenants that specify proper restrictions on its use and proper contingencies for its future management.

(o)Wellhead protection.

For many years the New York State Department of Health has advocated the exclusion of potentially contaminating activities from an area extending for 200 feet in all directions from the well site. Although this may have been considered adequate to prevent the rapid drawdown of bacterial contamination or its entry into ground water through poorly constructed wells, it seems unlikely to provide an appropriate level of protection against the suite of organic and inorganic pollutants that threaten the community water supplies. The commission will consider the location of nearby public supply wells and consult with the purveyor. Suffolk County Department of Health Services guidelines for private wells will be used for wellhead protection. When available, results of modelling for wellhead protection areas around public supply wells will be considered by the commission. If it can be demonstrated that a project will have a significant impact on water quality at a public well site, the commission as part of its special environmental quality review, may recommend against a project proceeding further.

(p)Scenic, historic and cultural resources.

The Long Island Pine Barrens Protection Act of 1993 specifies that the plan shall identify and map critical resource areas including unique scenic or historic features. In the interim, development proposals will review and account for:

(1) Established trails, trail corridors, and compatible recreation areas.

(2) Scenic vistas, including high points within the Pine Barrens.

(3) Historic districts identified in local codes that are listed on the State or National Register of Historic Places.

(4) Historic structures and landmarks identified locally or listed on the State or National Register of Historic Places.

(5) Sensitive archaeological areas as identified by the New York State Office of Historic Preservation.

Development proposals shall note any of the above within a 500 foot radius. A development proposal may be disapproved if it may have a significant negative impact on a scenic or historic resource.

(q)Hardship.

If the application of these interim goals and standards cause unnecessary hardship, the commission may approve a development plan upon a demonstration of hardship. Applicants will be required to meet the following four tests, generally referred to in Town Law, section 267-b as "use variance criteria": that for each and every permitted use under the zoning regulation for the particular district where the property is located:

(1) Applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

(2) That the alleged hardship is unique and does not apply to a substantial portion of the district or neighborhood.

(3) That the requested hardship exemption, if granted, will not alter the essential character of the neighborhood.

(4) That the alleged hardship has not been self-created.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 2350.3