Title 36—Parks, Forests, and Public Property--Volume 1
PART 28—FIRE ISLAND NATIONAL SEASHORE: ZONING STANDARDS
§ 28.1   Purpose.
(a) The enabling legislation for Fire Island National Seashore (the Seashore) mandated the Secretary of the Interior (the Secretary) to issue regulations which provide standards for local zoning in order to protect and conserve Fire Island. The regulations in this part set forth Federal standards to which local ordinances for Fire Island must conform to enable certain private property within the Seashore to be exempt from Federal condemnation. The standards also apply to use and development of public property. From time to time these standards may be reviewed and revised. These standards are intended:
(1) To promote the protection and development of the land within the Seashore, for the purposes of the Fire Island National Seashore Act (the Act), by means of size, location, or use limitations or restrictions on commercial, residential, or other structures with the objective of controlling population density and protecting the island's natural resources;
(2) To limit development and use of land to single-family homes, to prohibit development and use of multiple family homes, and to prohibit the conversion of structures to multiple family homes;
(3) To prohibit commercial or industrial uses initiated after September 11, 1964 or the expansion of existing commercial or industrial uses on any property within the Seashore which is inconsistent with the Federal standards and approved local ordinances or the purposes of the Act, is likely to cause a significant harm to the resources of the Seashore or will not provide a service to Fire Island;
(4) To recognize that the zoning authorities have the primary responsibility for zoning enforcement within the Seashore;
(5) To provide that private property within the Community Development District may be retained by its owner as long as it is maintained in accordance with approved local ordinances and the Federal standards;
(6) To provide that, within the Seashore District, private “improved property” may be retained by its owner as long as it is maintained in accordance with approved local ordinances, and the Federal standards;
(7) To provide that, in the Dune District, private undeveloped property, if otherwise subject to condemnation, may be retained by its owner as long as it is maintained in its natural state; and
(8) To provide a mechanism for the Superintendent to inform landowners and the zoning authority if a use or development will be inconsistent with the Federal standards or the purposes of the Act and may subject the property to condemnation, subject to available funds.
(b) The Secretary may utilize any other statutory authority available to the Secretary for the conservation and development of natural resources to the extent the Secretary finds that such authority will further the purpose of the Act.
§ 28.2   Definitions.
(a) Accessory structure means any development which is located on the same lot as the principal building or use and is customarily incidental and subordinate to the principal building or use. Accessory structure may include a storage shed, dock, deck, patio, swimming pool, or tennis court but does not include a garbage or bicycle rack and the single primary access walk. Accessory structure includes a guest house without cooking facilities used for overnight habitation.
(b) Act means the Fire Island National Seashore Act of September 11, 1964, (16 U.S.C. 459e), as amended.
(c) Building means an enclosed structure having a roof supported by columns, walls, or cantilevers. (If a structure is separated by a party wall without openings, it is considered two separate “buildings.”)
(d) Developed property means any property which has been altered from its natural state by the construction or erection of materials located in, upon, or attached to something located in or upon the ground. Such alterations may include a building, deck, swimming pool, storage shed, patio, dock, tennis court, septic system or leaching field, walkway, groin, fence or sign (except dune protection fences and signs), road, retaining wall, grading, artificial fill, or other structure or material excluding live vegetation.
(e) Development means any activity, action, alteration, structure or use which changes undeveloped property into developed property.
(f) Exception to a zoning ordinance means any development or change in use of developed property which is not authorized by the zoning ordinance or the variance procedures of the zoning authority or, if authorized by the zoning authority, fails to conform to the ordinance approved by the Secretary or to the Federal standards.
(g) Guest house means an accessory structure on the same lot as the principal building that does not contain cooking facilities and is used for the temporary accommodation of guests of a resident living in the principal building.
(h) Improved property is developed property defined by the Act to mean any building, the construction of which was begun prior to July 1, 1963, together with such amount of land on which said building is situated as the Secretary considers reasonably necessary to the use of said building not, however, to exceed 2 acres in the case of a residence and 10 acres in the case of a commercial use. The Secretary may exclude from such “improved property” any beach or waters, as well as land adjoining such beach or waters, which the Secretary deems necessary for public access thereto.
(i) Local ordinance means a State, town, or village law applicable to the development or use of real property.
(j) Lot means a parcel of land which meets the minimum acreage and frontage requirements of the zoning authority and is occupied or capable of being legally occupied by one (1) principal building or main building, and the accessory structures or uses including such open spaces as are required by these standards, but in no case does a lot include lands below the toe of the natural foredune line.
(k) Non-conforming use means any use or development that, if commenced after the effective date of these standards, fails to conform to these standards; or, if commenced prior to October 17, 1984, failed to conform to Federal standards in effect at the time of construction or fails to conform to these standards, whether or not the use or development was first commenced in compliance with the local ordinance.
(l) Single-family home means a building which contains no more than one kitchen or cooking facility. An exterior barbecue does not constitute a cooking facility for the purposes of this regulation.
(m) Undeveloped property means property which has not been altered from its natural state with the exception of dune protection measures such as snow fencing, beach nourishment, dune grass planting, or other approved biological or ecological sand-enhancing or stabilization methods.
(n) Zoning authority means the Town of Brookhaven, the Town of Islip, the Village of Saltaire, the Village of Ocean Beach and/or any other legally incorporated village or political subdivision hereafter created and the officials authorized by local ordinance to make rulings and determinations on zoning in said towns and villages.
§ 28.3   Boundaries: The Community Development District; The Dune District; The Seashore District.
(a) Generally. The boundaries of the Seashore are described in the Act, as amended, and are delineated on the official boundary maps OGP-OOO2, dated June 1964, and amended by OGP-OOO4, dated May 1978. The maps are available for inspection at the Seashore headquarters. There are three districts: The Community Development District, the Seashore District, and the Dune District.
(b) The Community Development District. (1) The seventeen communities which comprise the Community Development District are set out below with their respective west/east boundaries.
(i) Lighthouse Shores—Kismet Park
(ii) Seabay Beach
(iii) Saltaire
(iv) Fair Harbor
(v) Dunewood
(vi) Lonelyville
(vii) Atlantique
(viii) Robbins Rest
(ix) Fire Island Summer Club—Corneille Estates
(x) Ocean Beach
(xi) Seaview
(xii) Ocean Bay Park
(xiii) Point O'Woods
(xiv) Cherry Grove
(xv) Fire Island Pines
(xvi) Water Island
(xvii) Davis Park
(2) The northern boundary of the communities listed in paragraph (b)(1) of this section is the mean high water line on the south shore of the Great South Bay.
(3) The southern boundary of the communities listed in paragraph (b)(1) of this section is the mean high water line on the south shore of Fire Island.
(c) The Seashore District. The Seashore District is comprised of all portions of the lands and waters within the boundary of the Seashore which are not included in the Community Development District with the exception of the headquarters facilities at Patchogue and the William Floyd Estate at Mastic.
(d) The Dune District. The Dune District extends from the mean high water line to 40 feet landward of the primary natural high dune crest, as defined on Fire Island National Seashore Map #OGP-0004 and on Suffolk County Property Maps, section numbers 491-498 (Islip), 002 (Ocean Beach), 002-004 (Saltaire), and 985.70-987 (Brookhaven), as mapped in November 1976 or as subsequently remapped. Map overlays of the Dune District are available for inspection in the Office of the Superintendent of the Seashore. The Dune District overlaps portions of the Community Development District and the Seashore District.
§ 28.4   Severability.
The invalidation of any provision of this part 28 by any court of competent jurisdiction shall not invalidate any other provision thereof.
§ 28.10   Permitted and prohibited uses.
(a) The Community Development District —(1) Permitted uses. (i) The construction, alteration, expansion, movement, reconstruction, and maintenance of a detached building which is used principally as a single-family home, church, school, or community facility; as an accessory structure; or as an office for a professional occupation, as defined in approved local ordinances is permitted. Reconstruction of non-conforming uses is permitted in accordance with § 28.11. A professional office may be maintained only incidental to a residential use and shall be utilized by a person residing on the premises.
(ii) A commercial or industrial use in continuous and unchanged operation since September 11, 1964 is permitted. Any change in use of a commercial or industrial use since September 11, 1964 including construction, expansion, or conversion of an existing structure or a change in type, mode or manner of operation constitutes a new commercial or industrial use and may be permitted subject to the approval of the local zoning authority and review by the Superintendent.
(iii) A commercial or industrial use initiated after September 11, 1964 constitutes a new commercial or industrial use and may be permitted with the approval of the local zoning authority and review by the Superintendent. Any change in use of a commercial or industrial use approved by a local zoning authority after September 11, 1964, including construction, expansion, or conversion of an existing structure, or a change in type, location, mode or manner of operation, shall constitute a new commercial or industrial use and may be permitted with approval of the local zoning authority and review by the Superintendent.
(2) Prohibited uses. (i) The construction or expansion of an apartment building or other building with multiple dwelling units or conversion of an existing building into a multiple family home is prohibited.
(ii) The construction or expansion of a guest house with cooking facilities, or conversion of an existing structure to a guest house with cooking facilities is prohibited.
(iii) The subdivision of land into lots which are less than 4000 feet, or that do not meet the requirements of the applicable approved zoning ordinance is prohibited.
(iv) The rezoning of an area zoned residential to commercial or industrial without review by the Secretary is prohibited.
(b) The Seashore District —(1) Permitted uses. (i) The alteration, expansion, movement, and maintenance of privately-held “improved property” used as a single-family home or as an accessory structure is permitted. Reconstruction is permitted in accordance with § 28.11.
(ii) Any use consistent with the purposes of this Act, which is not likely to cause significant harm to the natural resources of the Seashore, on any lands, whether publicly or privately-held, which lie below mean high water in either the Atlantic Ocean or the Great South Bay is allowable.
(2) Prohibited uses. Construction, development or expansion of any property other than “improved property” is prohibited. The provisions of paragraph (a)(2) of this section apply to all privately-held property in the Seashore District.
(c) The Dune District —(1) Permitted uses. (i) A community vehicular and private or community pedestrian dune crossing approved by the zoning authority and reviewed by the Superintendent as necessary for access to areas behind the dune. Such dune protection measures as snow fencing, poles, beach nourishment, dune grass planting, or other scientifically sanctioned biological or ecological sand enhancing or stabilization methods are allowable.
(ii) Residential use and maintenance of an existing structure or reconstruction in accordance with § 28.11 is allowable.
(2) Prohibited uses. (i) Any development subsequent to November 10, 1978 including construction of a new structure or expansion of an existing structure, such as a building, bulkhead, pile, septic system, revetment, deck, swimming pool, or other structure or man-made dune stabilization device except as allowed under paragraph (c)(i) of this section.
(ii) Any use of the dune, other than those outlined in paragraph (c)(1)(i) of this section, including recreational use.
(3) Conflict with other provisions. If a development or lot lies partially within the Dune District and partially in the Community Development District, or partially within the Dune District and partially within the Seashore District, and the standards applicable to the development, lot, or use are in conflict, the standards for the Dune District prevail for the portion of the development, lot, or use which lies within the Dune District. (d) General recreation, environmental and historic preservation and education, and natural resource protection uses and facilities consistent with the uses and facilities appropriate for each zone as set forth in the General Management Plan and Final Environmental Impact Statement are permitted on publicly-held property.
§ 28.11   Nonconforming uses.
(a) Any use or structure lawfully existing under local law as of October 17, 1984 and rendered nonconforming by adoption of the federal standards may continue, subject to the provisions of this section, and will not lose its exemption from condemnation, if otherwise eligible.
(b) Change in nonconforming uses. (1) No nonconforming development or use may be altered, intensified, enlarged, extended, or moved except to bring the use or structure into conformity with the approved local zoning ordinance.
(2) A nonconforming use which has been abandoned for more than one (1) year may not be resumed or replaced by another nonconforming use or structure.
(3) A nonconforming use in the Dune District may be moved to bring it into conformity with the approved local zoning ordinance.
(c) Reconstruction of nonconforming uses. If a nonconforming use or structure is severely damaged (as determined by fair professional insurance practices), destroyed or rendered a hazard, whether by fire, natural disaster, abandonment or neglect, no alteration, intensification, enlargement, reconstruction, extension, or movement is allowable without compliance with the following conditions:
(1) No use or structure within the Seashore built in violation of a local ordinance when constructed may be reconstructed except in compliance with the approved local zoning ordinance.
(2) Local building permit applications for reconstruction shall be filed with the appropriate zoning authority within one (1) year of the damage, destruction, or abandonment.
(3) A commercial or industrial use may not be reconstructed without the approval of the local zoning authority and review by the Superintendent.
(4) A nonconforming use in the Community Development District or in the Seashore District (i.e. “improved property”) may be reconstructed to previous dimensions. It may not be altered, enlarged, intensified, extended, or moved except to bring the use or structure into conformity with the approved local zoning ordinance.
(5) A nonconforming use in the Dune District may be reconstructed if it can conform to the approved local zoning ordinance and lie north of the crest of the dune at the time of reconstruction.
§ 28.12   Development standards.
No use allowable under § 28.10 may be developed, constructed, altered, or conducted unless it complies with the following:
(a) A single-family home is the only type of development permitted in a residential district defined by a local zoning authority.
(b) Commercial or industrial development is limited to commercial or business districts defined by a zoning authority within the Community Development District. Such development must provide a service to Fire Island and will not be likely to cause significant harm to the natural resources of the Seashore.
(c) Minimum lot size is 4,000 square feet. A subdivision must comply with the subdivision requirements of the applicable zoning authority and may not result in development of any lot which is less than 4,000 feet.
(d) Maximum lot occupancy for all development may not exceed 35 percent of the lot. Lot occupancy is calculated to include all buildings and accessory structures on the property and any extension of the upper floors beyond the developed area on the ground level.
(e) Lot occupancy of all privately-held improved property in the Seashore District is limited to 35 percent of the square footage of a lot that is less than 7,500 square feet, and to 2,625 square feet for a lot 7,500 square feet or greater. Lot occupancy is calculated to include all buildings and accessory structures on the property and any extension of the upper floors beyond the developed area of the ground.
(f) No building or accessory structure may be erected to a height in excess of 28 feet as measured from the average existing ground elevation or the minimum elevation necessary to meet the prerequisites for Federal flood insurance as determined by the National Flood Insurance Program/FEMA shown on Flood Insurance Rate Maps for Fire Island communities.
(g) A swimming pool is an allowable accessory structure and is calculated in measuring lot occupancy.
(h) No sign may be self-illuminated.
(i) A zoning authority shall have in effect limitations, requirements, or restrictions on the burning of cover and trash, excavation, displacement or removal of sand or vegetation, and the dumping, storing, or piling of refuse materials, equipment or other unsightly objects which would pose safety hazards and/or detract from the natural or cultural scene.
(j) A zoning authority shall have in place ordinances to lessen the potential for flood and related erosion and property losses consistent with the Federal Insurance Administration's National Flood Insurance Program criteria for “Land Management and Use,” as set forth in 24 CFR part 1910, subpart A, as it may from time to time be amended.
§ 28.13   Variance, commercial and industrial application procedures.
(a) The zoning authority shall send the Superintendent a copy of all applications for variances, exceptions, special permits, and permits for commercial and industrial uses submitted to the zoning authority within five calendar days of their submission of the completed application by the applicant.
(b) The zoning authority shall send the Superintendent a copy of the written notice of the dates and times of any public hearing to be held concerning an application no less than 10 days prior to the date of the hearing.
(c) The zoning authority shall send the Superintendent a copy of the written notice within fifteen calendar days of the approval or disapproval of any application for a variance, exception, special permit, or permit and copies of any variance, exception, special permit, or certificate which has been granted.
(d) The zoning authority shall send copies of all correspondence referred to in this section to:
§ 28.14   Emergency action.
If allowable by local law and if immediate action is essential to avoid or eliminate an immediate threat to the public health or safety or a serious and immediate threat to private property or natural resources, an agency or person may commence a temporary use without a permit from the zoning authority. In all cases, the agency or person shall inform the Superintendent and send an application for a permit to the zoning authority within 10 days after the commencement of the use and the applicant shall proceed in full compliance with the provisions of the approved local zoning ordinance. When the reasons for undertaking the emergency action no longer exist, the agency or person shall cease an emergency action taken under this section.
§ 28.15   Approval of local zoning ordinances.
(a) The Secretary shall approve local ordinances or amendments to approved ordinances which conform to these regulations. The Secretary may not, however, approve an ordinance or amendment thereto which:
(1) Contains a provision that the Secretary considers adverse to the protection and development of the Seashore;
(2) Does not comply with the federal standards set out in §§ 28.10, 28.11, and 28.12; or
(3) Fails to provide for the variance procedures of § 28.13.
(b) A zoning authority from time to time may amend its ordinance. At such time the Secretary may revoke the approval of any ordinance or portion of an ordinance which fails to conform to these regulations. Upon resubmission by the zoning authority of an amended ordinance, the Secretary shall approve the ordinance, if it conforms with the requirements of paragraph (a) of this section.
(c) Secretarial approval of a local ordinance will be withdrawn if the Secretary finds that a zoning authority is not enforcing its ordinance.
§ 28.20   Review by the Superintendent.
(a) The Superintendent, within 15 working days of the receipt of a copy of an application for a variance, exception, permits for commercial or industrial use, or special permit submitted to the zoning authority for any development, use or change in use shall provide the applicant/landowner and the appropriate zoning authority written comments on the application. The purpose of the Superintendent's review is to determine if the proposed use or development does not conform to the federal standards and the purposes of the Act or is likely to cause significant harm to the natural resources of the Seashore. If the Superintendent's review determines the proposal does not conform, the Superintendent shall inform the applicant/landowner and appropriate zoning authority that should the proposed use or development proceed, the National Park Service may seek to enjoin the development and acquire the property by condemnation.
(b) The Superintendent may also appeal the decision of the zoning authority pursuant to procedures of local law.
§ 28.21   Suspension of condemnation authority in the communities.
The Secretary has the authority to acquire land by condemnation. Upon Secretarial approval of local ordinances, Secretarial authority to acquire by condemnation private property within the communities and “improved property” in the Seashore District that conforms to the federal standards and the provisions of the Act or is not likely to cause significant harm to the natural resources of the Seashore is suspended, except as provided for in § 28.22.
§ 28.22   Condemnation authority of the Secretary.
(a) The Secretary has the authority to exercise powers of condemnation with respect to:
(1) Private property within the 8-mile area between the eastern boundary of Davis Park and the western boundary of the Smith Point County Park;
(2) Any beach or water and such adjoining land as the Secretary determines is necessary for access to the beach or water;
(3) Any property for which the Certificate of Suspension of Authority for Acquisition by Condemnation has been revoked;
(4) Any property, if the approval of the ordinance of the zoning authority has been revoked; partially revoked, or an exception was made to the Secretarial approval and such property fails to conform to these standards, or any property where the appropriate local zoning authority does not have an ordinance approved by the Secretary;
(5) Any property built or altered after October 17, 1984 that does not conform to the regulations in this part 28;
(6) Any property which becomes an exception to or has been granted a variance, exception, or special use permit after October 17, 1984 that fails or will fail to conform to the regulations in this part 28;
(7) Any new commercial or industrial use that the Superintendent has determined does not conform with § 28.20(a). A new commercial or industrial use is defined as any commercial or industrial use commenced after September 11, 1964. Any change in use of a commercial or industrial use including construction, expansion, or conversion of an existing structure, or change in type, location, mode, or manner of operation, constitutes a new commercial or industrial use;
(8) Any property with respect to which the Secretary's authority to condemn was not suspended and the property failed to conform to the federal standards existing at the time of construction, modification, or commencement of a use, unless such construction, modification or use conforms to the current federal standards; and
(9) Any property in violation of a local ordinance required by § 28.12 (i) and (j).
(b) Undeveloped property which is otherwise subject to condemnation under the Act is not subject to condemnation if it is located in the Dune District and is maintained in its natural state.
(c) The Secretarial authority to condemn any property in the Seashore is suspended for any structure or use constructed, modified, or commenced prior to October 17, 1984 if:
(1) It was built or conducted in conformity with local zoning ordinances and procedures in effect at the time of such construction or commencement or had been issued a variance under local law;
(2) It was built or conducted in conformity to the federal standards existing at the time of such construction or commencement or to these standards; and
(3) The local zoning ordinance is approved by the Secretary without exceptions, or if approved by the Secretary with exceptions, such exceptions are not pertinent or applicable to the property.
(d) The above provisions shall not be interpreted to otherwise limit or circumscribe the authority of the Secretary to condemn property as provided by the Act, or other provisions of law.
§ 28.23   Certificates of suspension of authority for acquisition by condemnation.
Upon approval of a local zoning ordinance, a private property owner may apply to the Superintendent for a Certificate of Suspension of Authority for Acquisition by Condemnation. Procedures for obtaining a certificate are as follows:
(a) A property owner shall submit an application for a certificate to:
(b) An application for a certificate shall contain:
(1) A current survey of the lot showing the dimension of all buildings, accessory structures, garbage and bicycle racks, all access walks, and any extensions of the upper floors beyond the developed area on the ground level;
(2) On the survey, the line of mean high water, the toe of the dune, and the crest of the dune shall be identified if they traverse the lot;
(3) A floor plan of each floor of each building showing the configuration of all rooms and cooking facilities;
(4) A vertical drawing of the structure showing actual ground level and building height; and
(5) Copies of the original and all subsequent building permit applications and permits, certificates of occupancy, certified-as-completed surveys, variances, special use permits, certificates of pre-existing use, or other documents relating to local authorization to develop or use the property. The burden rests on the applicant to show that the structure conformed to local law at the time of construction and at the time of each subsequent alteration and that the structure conforms to current federal standards.
(6) For commercial or industrial uses, the owner of the property shall submit further information describing the type, mode, and manner of operation. All local, county, state, or federal licenses and permits required for construction, occupancy, operation of the commercial activity shall be submitted. Any change in use as described in § 28.10(a)(1)(iii) will require application for a new certificate.
(c) Upon receipt of the application, the Superintendent shall conduct a site inspection of both the interior and exterior of the property.
(d) After review of the materials submitted by the applicant and other pertinent information, and completion of the site inspection, the Superintendent shall determine whether the Secretary's authority to acquire by condemnation is suspended, and if so, shall furnish to any eligible party in interest a Certificate of Suspension of Authority for Acquisition by Condemnation.
(e) A Certificate of Suspension of Authority for Acquisition by Condemnation may be revoked at any time that the Secretary's authority to condemn is reinstated or that it becomes evident to the Superintendent that the Certificate was initially issued by mistake or on misinformation.
§ 28.24   Information collection.
The collection of information contained in §§ 28.13, and 28.23 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1024-0050. The information will be used to determine if private property conforms to the federal regulations. Response is required to obtain a benefit in accordance with 16 U.S.C. Section 459e et seq.