[Adopted 8-1-2005 by L.L. No. 3-2005]
This article shall be known as the "Vukote Drainage District Spoils Area Law."
When the Vukote Allotment was first established in the 1920s, the developer retained title to property running generally between the designated building lots and the Vukote Canal, which the allotment plats called the "Spoils Area." The purpose of the Spoils Area was to provide access to the canal for maintenance, including dredging. Title to the Spoils Area remained with the developer's heirs until 1998, when it was purchased by the Town of Busti on behalf of the Vukote Canal Drainage District to facilitate a dredging project. In the intervening years, homeowners within the Vukote Canal Drainage District had built improvements to their properties that encroached into parts of the Spoils Area. This presents a problem for the Town in that homeowners now wish to replace these encroachments or to construct new ones on property that does not belong to them. The Town Code Enforcement Officer has no authority to issue a building permit for an improvement to property that does not belong to the applicant for the permit, nor can the Zoning Board of Appeals grant a variance for property that does not belong to the applicant for the variance unless the applicant has obtained the permission of the Town Board to use Town property. Without a building permit or a variance, or both, any improvements in the Spoils Area cannot comply with Chapter 405, Zoning, of the Code of the Town of Busti. The purpose of this article is to enact a system that will permit homeowners to continue to use the Spoils Area to some extent, yet prevents the Spoils Area from being permanently obstructed should dredging or other maintenance be needed in the future.
For purposes of this article, the following terms shall be defined as follows:
- The Vukote Canal.
- ENCROACHING STRUCTURE
- Any structure not belonging to the Town of Busti located in whole or in part in the Spoils Area, as defined herein, except for retaining walls.
- SPOILS AREA
- All land shown as "Road" and "Spoil" on the Map of the Vukote, Addition C, dated October 6, 1925, and filed in the Chautauqua County Clerk's office on May 5, 1926, in cabinet, 2, Section E, map number 3; also all areas shown as "Spoil" on the Revised Map of Vukote Allotment, bearing a revision date of March 23, 1928, and filed in the Chautauqua County Clerk's office on May 26, 1928, in cabinet 2, Section E, map number 64.
The Town of Busti hereby issues a blanket license to property owners within the Vukote Canal Drainage District to maintain, replace, or newly construct encroaching structures in the Spoils Area adjacent to their properties, subject to the limitations set out in § 392-14. Such license may be revoked permanently or temporarily at the discretion of the Town Board should any encroaching structure fail to comply with the requirements of this article or any other applicable regulation or pose an impediment to canal maintenance, including dredging.
Variance. All other Town of Busti zoning and administrative code provisions shall continue to apply to an encroaching structure. If a variance would be required for the structure assuming that the Spoils Area belonged to the applicant, a variance shall still be required, but for purposes of the variance application, the Town of Busti shall be deemed to have given permission to the encroachment by virtue of this article.
Design requirements. No part of any encroaching structure may intrude into the water of the canal, nor be designed to permanently hang over the water, nor be of such a permanent nature that it cannot be moved should the Town need to perform dredging or other maintenance of the canal. Permissible encroaching structures would include a sidewalk, a canal-side deck or boardwalk, or a boathouse not on a permanent foundation. Impermissible encroaching structures would include an addition to a house, including a permanently attached porch, a garage, or any other structure on a permanent foundation. No concrete structure of more than six feet in depth may be located in the Spoils Area. Should the Town require that any encroaching structure be removed in order to access the canal for maintenance and other municipal purposes, such removal shall be made at the owner's expense.
Existing encroaching structures. Encroaching structures existing as of January 1, 2005, shall be treated in the same manner as nonconforming uses for zoning purposes; namely, they may be continued, but shall not be altered, expanded or replaced except in compliance herewith. The owner of an encroaching structure completed after January 1, 2005, shall apply for a variance for the new encroaching structure and shall be required to remove the structure should it be found by the ZBA to not comply herewith; such an encroaching structure automatically shall be deemed noncompliant herewith if the owner fails to submit a variance application within 60 days of the effective date of this article.
Any person that commits or permits to be committed an act in contravention of this article shall be deemed to have committed a violation and shall be subject to a fine of not more than $250 or imprisonment for a period not to exceed 15 days, or both. The continuation of a violation of the provisions of this article shall constitute a separate and distinct violation for each week the violation is continued.
Action or proceeding; civil penalties.
The Town Board may revoke the violator's license to encroach, whereupon any variance granted by the Zoning Board of Appeals shall be null and void.
The Town Board may also maintain an action or proceeding in the name of the Town in a court of competent jurisdiction to compel compliance with or restrain by injunction any violation of this article.
In addition to or apart from any action or proceeding to enjoin any violation, any person who violates this article shall be liable for a civil penalty or liquidated damages of $100 per day for each day such violation continues after such violator has received notice by certified mail to cease, discontinue or remove the violation.
Appearance tickets. The Code Enforcement Officer or his designee shall have the authority to issue appearance tickets for violations of any provision of this article.
Jurisdiction. The Justice Court of the Town of Busti shall have the jurisdiction to hear all complaints under this article, and of all actions and proceedings hereunder, and of all prosecutions for violations of this article, as authorized by the Constitution and Judiciary Law of the State of New York.