[HISTORY: Adopted by the Town Board of the
Town of Fenton 8-2-2005 by L.L. No. 2-2005. Amendments noted where
applicable.]
A.
The Town Board of the Town of Fenton has conducted
an investigation into the use of outdoor woodburning furnaces. The
Town Board has made the following findings:
(1)
Outdoor woodburning furnaces (hereinafter "OWBFs")
are utilized to provide heat for dwellings, swimming pools, or other
structures.
(2)
OWBFs, if properly used, may be effective for such
purposes, without necessarily being offensive to other Town residents.
(3)
OWBFs, if not properly used, may be offensive to other
Town residents. In addition, under certain circumstances, OWBFs may
be offensive to other Town residents even if reasonable steps are
taken to minimize adverse effects.
(4)
OWBFs, under certain circumstances, may emanate smoke
and odors that constitute nuisances to persons living in the vicinity
of such furnaces, and in some cases may constitute health hazards.
(5)
By requiring owners and operators of OWBFs to institute
reasonable measures and take reasonable steps, it is possible to minimize
the adverse effects of OWBFs in many if not most instances.
(6)
In some cases, however, the use of OWBFs may result
in adverse consequences rising to the level of nuisances, even if
such reasonable measures are instituted and such reasonable steps
are taken, in which case the rights of affected persons outweigh the
rights of owners and operators of OWBFs.
B.
The purpose of this chapter is to institute regulations
for the operation of OWBFs so as to minimize or eliminate adverse
consequences for residents of properties in the vicinities of such
OWBFs, and to prevent the use of such OWBFs in the event such consequences
cannot be minimized or eliminated.
As used in this chapter, the following terms
shall have the meanings indicated:
A condition which unreasonably and objectively annoys, injures
or endangers the comfort, repose, health or safety of any person.
A fuel burning device that is designed to burn wood or other
fuels; is specified by the manufacturer for outdoor installation or
installation in structures not normally occupied by humans; and is
used to heat building space and/or water via the distribution, typically
through pipes, of a gas or liquid (e.g., water or water/antifreeze
mixture) heated in the device.
[Amended 1-9-2009 by L.L.
No. 1-2009; 11-29-2017 by L.L. No. 1-2017]
A.
No property owner, tenant, entity, or other person
shall operate an OWBF in the Town of Fenton except pursuant to a permit
issued by the Town Building Inspector and a certificate of compliance
issued by the Building Inspector after the installation of the OWBF
and inspection thereof by the Building Inspector.
B.
Applicants for a permit to install and operate an
OWBF shall complete and file with the Building Inspector an application
form obtained from the Building Inspector or Town Clerk, and shall
also provide the Building Inspector with:
C.
The fee for an OWBF permit shall be the same as the
fee for inspecting a wood stove.
OWBFs located within the Town of Fenton as of the effective date of this chapter shall comply with the standards set forth in § 105-5 hereof. Owners and operators of such OWBFs shall apply to the Town Building Inspector for a permit within 30 days of the effective date of this chapter.
No new or existing OWBF shall be operated in
the Town of Fenton after the effective date of this chapter except
in conformity with the following standards:
A.
All OWBFs shall be outfitted with a properly functioning
spark arrestor.
B.
No OWBF shall be located closer than 350 feet to the
nearest neighboring dwelling. If an OWBF is located more than 350
but less than 500 feet from the nearest neighboring dwelling, the
chimney shall be at least as high as the roof line of the neighboring
dwelling, as depicted in this drawing:
 |
C.
Permitted and prohibited fuels.
[Amended 11-29-2017 by L.L. No. 1-2017]
(1)
The only permissible fuels for an OWBF shall be those set forth in
Title 6, Section 247.4 of the New York Codes, Rules and Regulations,
as the same may be amended or recodified.
(2)
Without limitation, those items set forth in Title 6, Section 247.3
of the New York Codes, Rules and Regulations, as the same may be amended
or recodified, may not be used as fuel in an OWBF.
D.
No OWBF shall be located closer than 10 feet to any
structure.
E.
If possible, OWBFs shall be located so as to minimize
the effect of any smoke emanating therefrom, giving due regard to
the prevailing wind direction.
F.
No OWBF shall be operated in a Residential A or Residential
B Zoning District.
G.
Provided that the use does not create a nuisance,
OWBFs may be used year round. However, individuals who use OWBFs during
the summer months shall take extra care to ensure that adverse consequences
to neighbors are minimized, including limiting the hours or frequency
of use.
H.
Unless inconsistent with the foregoing standards,
all OWBFs shall be installed and operated in accordance with the manufacturer's
recommendations.
I.
Notwithstanding anything contained in this Chapter 105 of the Town Code of the Town of Fenton, all OWBFs shall conform to the requirements of Title 6, Part 247 of the New York Codes, Rules and Regulations, as the same may be amended or recodified (the "NYSDEC regulations"), and shall be operated in conformity with the requirements of said title and part. In addition, all OWBFs shall meet the 2020 emissions standards established by the United States Environmental Protection Agency for wood-fired hydronic heaters (the "EPA standards"). To the extent there are inconsistencies among Chapter 105 of the Town Code of the Town of Fenton, the NYSDEC regulations, and/or the EPA standards, the most restrictive requirement shall apply.
[Added 11-29-2017 by L.L.
No. 1-2017]
Variances from the requirements of this chapter
may only be granted by the Town of Fenton Zoning Board of Appeals
upon a showing of undue hardship and after a factual determination
by the Board of Appeals that the applicant's OWBF may be operated
without constituting a nuisance.
A.
Notwithstanding compliance with the requirements in § 105-5, no OWBF shall be operated in a manner which constitutes a nuisance.
B.
If the Building Inspector or Code Enforcement Officer
concludes that an OWBF for which a permit and certificate of compliance
have previously been issued constitutes a nuisance, the Building Inspector
shall promptly revoke the OWBF permit and certificate of compliance,
and shall not reissue either the permit or certificate until the OWBF
owner or operator has demonstrated that the OWBF may be operated in
a manner that does not constitute a nuisance.
C.
An owner or operator of an OWBF whose permit and certificate
have been revoked may appeal the decision of the Building Inspector
or Code Enforcement Officer to the Zoning Board of Appeals, which
shall hear and decide such appeal in accordance with its customary
procedures, and shall issue its determination in writing promptly
after conducting a public hearing on the matter. The determination
shall be filed in the office of the Town Clerk, who shall immediately
mail a copy to the owner or operator who filed the appeal.
D.
An action challenging the determination of the Zoning
Board of Appeals shall be commenced in the New York State Supreme
Court no later than 60 days following the date the determination of
the Board is filed with the Town Clerk.
A.
Any violation of this chapter is an offense punishable
by a fine as set forth below.
B.
Each day's continuing violation shall be considered
a new violation.
C.
After appropriate investigation and inspection, and
a determination that one or more violations have occurred or may be
occurring, an appearance ticket shall be issued by the Building Inspector
or Code Enforcement Officer.
E.
In addition to seeking the imposition of a fine, the
Town may also seek injunctive relief against any violation of this
chapter in any court of competent jurisdiction, including, if appropriate,
the Town of Fenton Justice Court. In the event the Court grants the
injunctive relief sought by the Town and determines that the owner
or operator of the OWBF had no good-faith basis for opposing the application
for such relief, the Court shall be empowered to order that said owner
or operator reimburse the Town for its expenses of litigation, including
reasonable attorneys' fees, costs, and disbursements.
F.
Nothing herein shall be construed to prevent any person
or entity aggrieved by the operating of an OWBF from pursuing his,
her or its own legal remedies, or to limit any such remedies.
