Can Fresh Pond users install unauthorized swim floats?

Will the town follow up on permittees whose houses cause neighborhood problems?

Questions about compliance and enforcement of laws featured prominently during Tuesday's Town Board work session.

MS4 compliance

One of those questions was answered in the affirmative: “We're all unanimous that we're going into compliance mode,” Town Supervisor Jim Dougherty said at the conclusion of a discussion about meeting a planning deadline imposed by federal Clean Water Act rules. And Town Attorney Laury Dowd, rather than Highway Superintendent Mark Ketcham, is initially leading the effort on MS4 — the Municipal Separate Storm Sewer Systems program to mitigate stormwater runoff.

Mr. Dougherty described MS4 as “an unfunded mandate at a time when we don't have funds.” But Ms. Dowd suggested that the town could meet the September deadline for documenting an overall compliance plan, called a “notice of intent.”

“We can do it ourselves,” she said, and probably better than a consultant who would have to rely on town input. She said that board members need to discuss which water bodies are a high priority for runoff prevention. The initial planning document need not quantify how the mitigation will be implemented and measured, she said. The notice of intent will “indicate the direction you want to go” without documenting the details.

“What I think you need to do is identify the people on town staff to work on it. I can work on it. Mark [Ketcham] can work on it but he is an elected official” and for continuity, staff should be involved, she said.

“I think it's doable,” Ms. Dowd concluded.

“We're all in favor of cleaning up our environment, keeping our water clean. But we all kind of wish this thing would go away,” Councilman Glenn Waddington said of MS4 compliance. He asked if the town could legally rebel against the requirements.

Ms. Dowd said that if other towns nationwide and on the west end of Long Island didn't successfully challenge the rules, it seems unlikely that the town could.

Councilman Peter Reich suggested that the town's mitigation plan should include reducing or limiting fertilizers and pesticides. That led to a discussion of the town's Nicolls Patent rights and the Department of Environmental Conservation's dual roles as MS4 enforcers, requiring the town to regulate potential contamination of estuary waters, and its claim to being the exclusive regulator of pesticides.

Mr. Dougherty indicated that after researching the issue, he was no longer inclined to consider a court challenge to the DEC's pesticides authority, as it wouldn't be a good investment of taxpayer dollars.

While the pesticide issue remains unresolved, board members agreed that they would not buck the DEC on MS4 — “that would be folly,” Councilwoman Chris Lewis said.

Enforcement and code issues

Four swim floats recently installed in Fresh Pond, as documented in letters and photographs to Town Board members, involved both code and enforcement issues.

Mr. Reich said that the floats are unauthorized moorings; swim floats in tidal waters have been permitted by the town under the mooring code. He said they would fall under the bay constable's jurisdiction.

But Police Chief James Read disagreed, suggesting that the Building Department could also be enforcers. He also questioned whether the floats violated any law. The mooring code refers to town lands beneath the mean high tide line, he said, a marine definition. Ms. Dowd said that the mooring code would apply but asked whether Fresh Pond had tidal flows. Vinnie Novak, a pondside property owner, questioned whether the DEC had something to say about floats.

The discussion turned to developing a policy for floats in all Island ponds (at the suggestion of Don Kornrumpf) and authorizing just one float, possibly a town float. “If you're going to limit it, I feel it should be a public float,” Mr. Waddington said, so long as the town insurer reviews it.

At the end of the work session, board members commented on two properties that had gone through the Town Board wringer in recent months and years. Mr. Dougherty described the house of John King on Winthrop Road, which the board spent months paring down during wetlands permitting, as “a failure ... Either our code is deficient or enforcement is.” Mr. Waddington said, “I don't think anyone of us drives by that doesn't feel sick about it. It would be nice to have a virtual picture before the fact.” From the audience, Patricia Shillingburg, a Town Board candidate and current Zoning Board member, described the C zone, waterfront property, which has the same setbacks as Center properties, as “a disaster.”  

Enforcement issues on a Point Lane property were not on the agenda because Building Inspector Billy Banks is still investigating them, Ms. Lewis explained. Chuck Olton of Point Lane said that neighbor feelings on activity at the property, which include building a bridge across a salt marsh and removal of vegetation, range from upset to anger. “There is the bridge issue. It's hard to tell what else is going on down there,” he said.

The 3 Point Lane property slopes steeply to tidal wetlands and was the subject of extensive town hearings before the Zoning Board and Town Board. The wetlands permit for constructing the house, which takes up nearly all of the property's building envelope, imposed covenants on clearing activities.

Ms. Dowd said that if any violations are issued, an administrative hearing with the owner would be scheduled.

Other topics

During the July 7 work session, the Town Board also discussed the following:

• Dark skies legislation. A second public hearing on a new draft of the law will be set during Friday's regular Town Board meeting. Solar lighting and energy efficiency will not be directly addressed by the proposed law, Ms. Lewis indicated. She also emphasized that the law is not intended to take away anyone's lights, just to keep them from bothering a neighbor.

• Drug testing policy. A draft of town guidelines on employee drug testing has once again been taken off the back shelf. Chief Read suggested that town officials sit down with union representatives and “come back with a solid draft.”

• An August 2 boat party off Mashomack Preserve. Party organizers have applied for a town outdoor assembly permit, a requirement encoded after last year's water-borne concert with its hundreds of boats required a significant law enforcement presence and introduced trespassers and trash off Major's Cove. Mashomack is opposing a Coast Guard permit required for the party, Chief Read said. The board will ask the applicant for more information.

• Boat storage at Wades Beach. Boaters continue to store boats on private property east of the town designated boat storage area. Owners will be notified to move their boats or have them impounded.

• Town legal efforts to reduce helicopter noise. Mr. Dougherty and Island resident Ken Winston met with Jim Brundige of the East Hampton Airport to discuss the flight route that directs helicopters over Shelter Island, which Mr. Brundige said is dictated by “tremendous technical difficulties with JFK airspace,” Mr. Dougherty reported. A meeting is planned on July 29 in the Long Island office of Senator Kirsten Gillibrand to continue the discussion.

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