Legislative intent and findings.
The Town of Fishkill includes a distinct neighborhood known as Beacon Hills. Historically, and in advance of the adoption of zoning regulations by the Town of Fishkill in 1962, parcels in the Beacon Hills area were laid out by land subdivision to establish a seasonal bungalow community serving occupancy during fair-weather months. Water and other utilities tended to be shut off during months of cold and inclement weather. The preponderance of prezoning development constituted small residential structures without basements and with external subterranean water meters whose valves were shut off during inclement months. The land subdivision for this seasonal bungalow community generally yielded very small lots having a width of 50 feet and depth of 100 feet, but not to the exclusion of other smaller or irregular shaped lots.
The terrain of this area is steeply sloped and situated on the northerly face of the Hudson Highlands.
Beacon Hills experiences periodic stormwater management difficulties, significant erosion, the need for nonstandard alternative in-ground septic designs, challenges to providing a suitable drinking water supply, significant challenges to firefighting, steep internal roads presenting improvement and maintenance challenges, and steep slopes which put potential road extensions in contravention of municipal highway grade specifications. In the past, actual or de facto development moratoria were experienced at Beacon Hills.
There is only one fundamental means of highway access into the Beacon Hills area from the external public road system of the municipality. This has generated several overly long cul-de-sac roads which contravene current highway standards.
After the advent of zoning in 1962, the area experienced development for single-family homes accommodated by combination of several lots under common ownership, and which either met or came closer to meeting the former R-20 (minimum 20,000 square feet) district regulations which applied to significant portions of Beacon Hills under the Town Code. Early post-zoning custom and practice for the issuance of building permits was the combination of four or more of the substandard prezoning lots to accommodate a single-family home, and this tends to define the character of the community, setting aside other issues pertaining to the environmental and public safety constraints to development experienced over time as a consequence of suburbanization pressures from areas south of the Town of Fishkill.
There are various undeveloped and severely substandard lots remaining in the Beacon Hills area as a consequence of ancient land subdivision to lay out the seasonal bungalow community. Illustratively, for a lot with dimensions of 50 feet in width and 100 feet in depth, the R-20 bulk and area regulations yield allowable building footprints as small as 10 feet by 25 feet.
Given the northward migration of population from metropolitan areas, and the resulting significant escalation of real property values, the Beacon Hills area has experienced pressure for single-family residential construction on the remaining open and severely substandard bungalow community sized lots. This has resulted in a recent trend where a disproportionate percentage of new development or expansion of existing structures requires variances, indeed variances of remarkably significant proportions as compared to the bulk and area regulations. The additional pressure to convert ancient and substandard lots from bungalow purposes to suburban single-family development places significant strain upon the environmental and infrastructure shortcomings of the Beacon Hills area. The effort to situate single-family homes on inadequately sized lots, or upon an inadequate combination of lots, has given rise to threats to community character and raised environmental concerns.
Permit procedure. All nonseasonal permitted uses and occupancy of real property within the Beacon Hills Zoning District, and the construction or establishment of structures and site development to serve such uses by landowners or their agents or contractors, shall comply with, and shall be subject to, the following land development permit procedures:
The Building Inspector and the Planning Board are hereby designated to administer and implement this section through the granting or denying of land development permits. All permits or approvals issued by the Town, particularly but not limited to building permits and certificates of occupancy, shall incorporate by reference the terms and conditions of any land development permit issued pursuant to this section.
Building Inspector review of application. In addition to Planning Board approval where necessary and pursuant to the requirements of Article X, Site Development Plan Approval, all applications under this section shall be submitted to and filed with the Building Department for review and processing pursuant to the following procedure:
Issuance of land development permit by Building Inspector. If the Building Inspector determines that the application is complete in accordance with Subsection B(4) of this Section, the landowner may be entitled to a land development permit from the Building Inspector if the proposed activity is one of the following and the proposed activity is not also one of the activities subject to mandatory referral to the Planning Board under Subsection B(2)(b):
The placement of a shed onto the real property, but only when the shed is no larger than 10 feet by 10 feet in size and the placement of the shed will comply with all zoning laws (i.e., no variances are required from the ZBA); or
An addition to or the modification of an existing structure if there will be no increase in the footprint of the existing structure and no associated land disturbance; the conversion of a deck or garage into habitable space; or the construction of an additional floor onto an existing structure; or
The construction of an aboveground pool where the associated land disturbance is no greater than 350 square feet; or
The maintenance or replacement of walkways or driveways, constructed on or before December 30, 2008, if there will be no increase in the footprint of the existing walkway or driveway; or
The construction of a new sidewalk on real property devoted to residential use. However, this activity may require the submission of an erosion and sediment control plan; or
A pervious driveway may be converted to a paved driveway if the total impervious surface area of the converted driveway is greater than 200 square feet but less than 1,000 square feet and provided that the completed slope is not greater than 3%; or
A retaining wall located within a required yard which has a maximum exposed height of two feet and will result in no more than 1,000 feet of associated land disturbance. However, this activity shall require the submission of an erosion and sediment control plan.
Mandatory referrals to the Planning Board.
The Building Inspector shall have no authority to issue a land development permit and shall refer all applications to the Planning Board where:
The activity or any portion thereof requires a variance from the Zoning Board of Appeals; or
Any new construction of buildings or structures (excluding additions as provided in Subsection B(2)(a) above); or
If the proposed activity will take place in a floodplain; or
The activity will take place on property with slopes equal to or greater than 12%; and
The construction of a driveway where the associated land disturbance will exceed 5,000 square feet.
Building inspector discretion. The activities previously listed above are not exhaustive, and additional activities may be entitled to a land development permit from the Building Inspector when it has been determined by the Building Inspector, in his sole discretion, that the preparation of an erosion and sediment control plan will provide sufficient mitigation to satisfy the criteria detailed in Subsection B(10).
The Building Inspector shall rely on the following when evaluating the exercise of discretion:
The proposed land disturbance is not covered elsewhere herein and is between 1,000 square feet and 5,000 square feet.
The proposed land disturbance does not involve construction of any new structure, including sheds, porches or retaining walls of any height, provided for elsewhere herein.
The proposed land disturbance does not involve the creation of any new impervious surface in the aggregate greater than 200 square feet.
The proposed land disturbance does not involve or impact any existing slope greater than 12%.
The proposed land disturbance is related to the repair, replacement or reconstruction of a wastewater disposal facility, provided that the work does not involve any change in land contour greater than six inches and is no closer to any property line than 10 feet.
The proposed land disturbance does not involve the placement or removal of more than 50 cubic yards of material and/or involve the alteration of a contour by more than two feet not connected with an approved development plan.
At no time during the conduct of work shall the slope within 10 feet of a property line exceed 1 V:3H, including material stockpiles.
If the Building Inspector cannot determine that an erosion and sediment control plan will provide sufficient mitigation, the application shall be referred to the Planning Board.
In reviewing any application for a land development permit under this section, the Building Inspector shall be permitted to refer the application to any other Town department or any consultant (i.e., engineer, attorney, planner) for review and comment.
When a land development permit issued by the Building Inspector requires the submission of an erosion and sediment control plan, the erosion and sediment control plan shall be submitted to the Building Department for approval before issuance of the permit. Further, the conditional permit shall, on the face of the document, be expressly conditioned upon the landowner's continued compliance with the approved erosion and sediment control plan. Failure to comply with the erosion and sediment control plan shall result in immediate revocation of the permit.
Review of applications referred to the Planning Board. If the Building Inspector determines that the proposed activity is not entitled to the issuance of a land development permit under Subsection B(2) above, the Building Inspector shall immediately advise the applicant that the application is being referred to the Planning Board for processing. The applicant shall then submit all information necessary to comply with the application requirements for the Planning Board, pursuant to the requirements of Article X, Site Development Plan Approval.
Planning Board Engineer review.
Each application referred to the Planning Board shall also be referred to the Planning Board Engineer, who shall review the application and issue a recommendation regarding whether the submission is complete and contains sufficient information for the Planning Board to perform a proper review of the submission; and/or
In addition, the Planning Board Engineer shall issue, no later than 31 days after the close of the public hearing, a letter with regards to the following:
Duty of the Planning Board. During its review of the application, the Planning Board shall:
Determine when an application is complete;
Review the application to determine that the requirements of this section have been satisfied;
Review each complete application and approve, approve with conditions or deny applications in accordance with this chapter within 62 days after the close of the public hearing provided for by Subsection B(7) below;
Require posting of a performance bond with supporting security and an inspection fee as a condition of approval, the amount of such bond to be approved by the Town Board. The performance bond shall be in a form acceptable to the Town Attorney, and the supporting security shall be in the form of a cash deposit, the assignment of a bank account, or the posting of a letter of credit; and
Require the applicant's contractors or agents, as a condition of any approval, to execute a notarized statement binding the contractor to the terms of this section and any permit issued hereunder.
Public notice and hearing for application before the Planning Board.
Not later than 62 days after an application becomes complete, the Planning Board shall hold a public hearing on such application.
A public hearing shall be conducted in conformance with the requirements of Chapter 114 of the Town of Fishkill Code. Notice of such public hearing shall be posted, published and mailed as required by Chapter 114 before said hearing is held. The applicant shall provide proof of mailing to the Planning Board prior to the date and time set for public hearing as a prerequisite to opening the public hearing.
[Amended 4-3-2019 by L.L. No. 1-2019]
Waiver of public hearing. If, after receipt of an application and upon recommendation of the Planning Board Engineer, the Planning Board finds the proposed activity to be of a minor nature which would not significantly alter, affect or endanger steep slopes, wetlands, floodplains, streams, drainage or naturally result in uncontrolled and excessive erosion, the Planning Board may, in its discretion, waive the public hearing.
Technical standards. For purposes of this section, the following documents shall serve as the official guides and specifications for stormwater management. Stormwater management practices that are designed and constructed in accordance with these technical documents shall be presumed to meet the standards imposed by this chapter.
The New York State Stormwater Management Design Manual (New York State Department of Environmental Conservation, most current version or its successor, hereafter referred to as the "Design Manual").
New York Standards and Specifications for Erosion and Sediment Control (Empire State Chapter of the Soil and Water Conservation Society, 2004, most current version or its successor, hereafter referred to as the "Erosion Control Manual").
Criteria for granting permit. In granting a land development permit, the Planning Board shall find that all of the following conditions have been met:
The proposed activity will not result in any sudden slope failure or additional erosion or that any potential sudden slope failure or additional erosion has been mitigated to the greatest extent practical;
The proposed activity will preserve and protect existing watercourses, floodplains and wetlands;
The proposed activity will not adversely affect existing or proposed water supplies or sewage disposal systems;
The proposed activity will properly avoid downstream drainage impacts, including but not limited to application of the following criteria: the land development shall not alter the course or volume of surface waters entering upon and crossing the subject land, absent effective stormwater retention or management, and a drainage easement having been given by neighboring and/or otherwise affected downgrade parcels;
The proposed activity will stabilize all earth cut and fill slopes by vegetative or structural means, so that maximum exposed soil slopes will be 1V:3H, unless otherwise recommended by the Planning Board Engineer;
The land development meets the criteria otherwise laid out in Article X of this chapter pertaining to site development plan approval, except to the extent those standards are expressly waived by the Planning Board;
All construction, land disturbance, and land clearing activities shall be undertaken in a manner designed to minimize surface runoff, erosion and sedimentation. The construction and site work/disturbance shall, at a minimum, prevent any and all soils from being deposited onto adjacent properties, rights-of-way, public or private storm drainage systems, roads, streets or sidewalks, and wetlands or watercourses.
Notwithstanding any other provisions of this chapter or conditions of the permit, the applicant is responsible for the prevention of damage to adjacent and nearby public and private property, wetlands, watercourses, rights-of-way, public streets, and public highways from erosion, sedimentation, settling, cracking and other damage or personal injury that may result from the construction and site work/disturbance undertaken by the applicant. The applicant shall be responsible for the prompt removal and correction of damages resulting from any soil, debris or other materials washed, spilled, tracked, dumped, placed or otherwise deposited onto adjacent and nearby public and private property, wetlands, watercourses, rights-of-way, public streets, and public highways, whether incident to the construction or the site work/disturbance undertaken by the applicant or resulting from the movement of vehicles and persons to and from the site.
The applicant, the landowner, and the contractor are all responsible for the successful implementation of the erosion control plan and the maintenance of all erosion control measures as depicted on the plan for the duration of the construction and site work/disturbance proposed by the applicant. The applicant, the landowner, and the contractor shall be jointly and severally liable for all costs incurred, including environmental restoration costs, resulting from noncompliance with the approved plan. The application for a permit shall constitute express permission by the applicant and the landowner for the Building Inspector or other authorized Town officials to enter the property for the purposes of inspection for compliance with the land development permit. The application form shall contain a prominent provision advising of this requirement, and, by signing the application, the applicant, the landowner, and the contractor expressly waive any objection to authorized Town official(s) entering the property for the purpose of conducting an inspection.
Conditions. After a land development permit is approved by the Building Inspector, some or all of the following conditions may apply, as determined in the Building Inspector's sole discretion, and will appear as conditions on the permit as issued by the Building Inspector. After a land development permit is approved by the Planning Board, all of the following conditions shall apply to the permit. Failure to comply with permit conditions is grounds for the Building Inspector to revoke a land development permit.
Within 10 days after installation of all erosion control plan measures, the applicant shall notify the Building Inspector and shall submit as-built drawings documenting construction and implementation of said erosion control measures. The licensed professional who designed the plan for the applicant/landowner shall submit an as-built certification attesting that the erosion control measures as depicted on the approved plan have been installed in accordance with the approved plan and are fully functional.
At all times during the construction and site work/disturbance, the erosion control plan shall be maintained in compliance with the permit, and the applicant, the landowner, and the contractor shall be fully responsible for said maintenance. The permit may be transferred to a new landowner, but only after review of the status of the erosion control plan implementation and maintenance by the issuing agency. The issuing agency may require that a new application for a land development permit be filed if it finds that the prior approved plan was not properly implemented, or that the construction plans have been revised or altered, or that the site work/disturbance plans have been revised or altered. The Building Inspector shall be empowered to issue stop-work directives during the making of such improvements which are at deviation from approved plans.
Any modification to the approved plan that results in a change to the location of any structure or improvement, or change to the slope of any driveway, or a change to the grading of any part of the property, or a change to the construction schedule, or alterations to the previously approved sequence of land disturbance or site work shall be subject to the prior approval of the issuing agency.
All land development permits issued shall expire on the earlier of the completion of the work specified and permitted or one year from the date the permit is issued. In its discretion, the issuing agency may grant up to two six-month extensions to this period.
Following completion of the work, the applicant shall submit a certification by an engineer, licensed by the State of New York, that the completed work meets the requirements of the permit. The engineer for the issuing agency shall verify that the work has been completed in accordance with the permit. Upon the recommendation of the engineer, the issuing agency may require an as-built survey of the improvements to ascertain that the work was completed in accordance with the approved plans.
Where the activity subject to this chapter also requires a Town of Fishkill building permit, the Town of Fishkill Building Inspector shall not issue a building permit until the application for a land development permit is approved and shall not issue a certificate of occupancy until the engineer for the issuing agency verifies that all work has been completed in accordance with the land development permit and the building permit.
No changes, modifications, or alterations in the location or configuration of proposed structures or improvements are permitted after approval of the plan without the prior approval of the issuing agency. Prior to undertaking any change, modification, alteration, or deviation from the approved plan, the applicant shall submit to the issuing agency a revised plan showing the proposed changes, which shall then determine whether the proposed changes are substantial or minor and whether the changes should be subject to a public hearing on the permit modification.
The Planning Board shall hear and decide appeals when it is alleged that there is an error in any requirement, decision or determination by the Building Inspector in the enforcement or administration of this section.
Those aggrieved by the decision of the Planning Board may appeal such decision to the Supreme Court, as provided in Town Law § 282.