[Added 3-28-1985 by L.L. No. 5-1985]
In any district where permitted, the Zoning Board of Appeals may grant a special permit to establish the following uses, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this article.
[Amended 6-14-2001 by L.L. No. 3-2001]
The Zoning Board of Appeals may grant a special permit to establish cemeteries, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
Church cemeteries.
(1)
Internal columbariums. Columbariums shall be allowed
within or as an integral part of a church building or accessory church
building or structure without a permit.
B.
All other cemeteries. Cemeteries may be permitted,
by special permit, in all residential districts, subject to the following
conditions:
[Added 2-12-1998 by L.L. No. 2-1998; amended 6-14-2001 by L.L. No. 3-2001]
The Zoning Board of Appeals may grant a special permit for preparation of mulching materials, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section. Temporary use of property for the preparation of mulch materials may be established upon the properties listed herein, by special permit, upon a finding by the Zoning Board of Appeals that mining has permanently ceased on the property, that such mulching use would materially aid in the timely reclamation of the site, that the proposed use is in conformity with the standards applicable to special uses as listed in § 194-49, and that the proposed use conforms to the specific standards set forth in § 194-70. No area variances of the standards of § 194-70 shall be granted by the Zoning Board of Appeals. In providing that no area variances may be given from any of the standards set forth to qualify for such special permits, it is the town's specific intention to supersede the provisions of Town Law § 274-b, Subdivision 3 (L.1992, c. 694) insofar as this section has been interpreted to allow the granting of such area variances.
A.
Eligible properties. Only the following properties
are eligible for the issuance of this special permit. These properties
have been found by the Town Board to be the only properties which
are sites of a former mine in a residential zone, where mining has
commenced prior to 1982, but the property has never been properly
reclaimed, and where the owner has represented and is willing to assure
that mining has now permanently ceased:
(1)
The property known as "Stormville Dolomite," consisting
of three tax map parcels, 6656-00-080999 (6.72 acres); 6656-00-048998
(16.44 acres); and 6656-00-001956 (9.50 acres), such property presently
owned by Southern Dutchess Land Holdings, Ltd.
B.
Scope of special permit. The special permit shall initially be granted for only a period of time, up to a maximum of two years, as determined by the Zoning Board. The Zoning Board may renew or extend this permit, in its discretion, for good cause shown, provided that the applicant shows compliance with all conditions of the original permit, and a satisfactory rate of progress in completing the site reclamation. All extensions will be subject to all provisions of this section and any additional conditions imposed by the Zoning Board of Appeals. No extension of the permit shall be granted unless the applicant has complied with all conditions of a previously issued permit. On each extension, the Zoning Board shall review the matter to assure that the application continues to meet the standards of § 194-49 and this section. Periods of extension of the permit shall be for no more than one year. The special permit, including all its extension periods, shall not exceed the period of time necessary to complete reclamation, and in no event shall the total period of operations under the special permit and all extensions exceed eight years.
C.
General site and lot requirements. The following shall
be the minimum requirements to qualify for issuance of the special
permit:
|
Minimum lot area
|
10 acres
| |
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Minimum lot frontage
|
75 feet
| |
|
Minimum setback of screening, grinding and other
production operations from adjoining lot line
|
400 feet
| |
|
Screening and buffering along adjoining residential
boundaries
|
All setback areas must provide adequate screening
and buffering for visual screening and protection against undue noise,
in a manner deemed sufficient by the Zoning Board of Appeals. Such
means may include any or all of the following: the provisions of earthen
berms, of a height at least 15 feet, screening by existing vegetation
and new plantings, and increasing the required setbacks.
| |
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Required location of entrance
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State road
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D.
Limits on permitted materials:
(1)
Permissible materials. The only materials that may
be brought to the site for mulching preparation are those specifically
authorized by the Zoning Board of Appeals as part of the special permit.
These may include any among the following: tree and brush limbs, and
other similar noncontaminated natural vegetation, such as butt logs,
stumps, brush, chips and leaves. No other materials, including any
C & D materials, or any contaminated, infested or hazardous material
shall be brought to the site for any purposes. Additionally, the applicant
is required to comply with any other applicable permit requirements
imposed by any other governmental department or agency as to the permissibility
of materials brought to the site.
(2)
Removal of materials from site:
(a)
As part of the permit, the Zoning Board of Appeals
may authorize removal of any stockpiles of sand or gravel existing
on the site as of the date of issuance of the original permit, provided
those do not exceed a quantity of 30,000 yards. The Zoning Board shall
impose conditions to assure that the pace of removal of the stockpiles
is coordinated with the pace of reclamation. No more than four truckloads
(eighteen-wheeler size) may be removed each day.
(b)
All soil which is produced as a by-product of
the mulching operation, including any soil which falls from the stumps
or brush as it is processed, shall be used on the site, for the purposes
of reclaiming the former mining site. No soil shall be removed from
the site.
(3)
Permitted operations.
(a)
The screening and grinding of natural vegetation
as permitted by the Zoning Board, to produce wood material of a proper
size for mulching, followed by the screening of the material to separate
the wood, dirt and stone into separate piles, which will be temporarily
stockpiled for future use in accordance with the terms of the special
permit, for the periods of time and under the terms of the special
permit.
(b)
After the initial separation of the soil and
stone from the vegetative matter, there shall be no further sifting,
sorting, screening or processing of any of the soil and stone.
(c)
There shall be no drilling, blasting, crushing
of any rocks or stones, either before, during or after the initial
separation. This limitation shall apply to any existing stones on
the site, as well as any additional materials brought to the site.
(d)
All material brought to the site shall be processed
to produce mulch within four months. No such material shall be left
in an unprocessed state for more than four months.
(e)
Materials produced as a result of the mulching
process (stones, dirt, mulch) may be disposed of as follows:
[1]
Mulch may be sold at the site on a wholesale
basis, under the provisions of this section and any additional conditions
imposed by the Zoning Board. It may be stockpiled and stored on the
site for a maximum of six months.
[2]
Dirt produced as part of the mulching process
must be used on the site as part of the reclamation, and may not be
sold. It must be used promptly, and shall not be stockpiled an the
site for longer than four months.
[3]
Stone produced as part of the mulching process,
and not used for reclamation, may be sold on a wholesale basis under
the provisions of this section and any additional conditions imposed
by the Zoning Board.
[4]
No retail sales of any product are permitted
at any stage of the operation.
(f)
This special permit does not authorize any mining
or excavating activity, or the conducting of any other activities
or businesses other than those specifically set forth herein, including
but not limited to logging, processing and production of firewood,
stone processing and any other similar activity.
E.
Hours of operation. No operating of equipment, accessory
wholesale sales, or any other activities conducted as part of this
special permit shall be conducted before 8:00 a.m. or after 5:00 p.m.,
or on any days other than Monday through Saturday. No activities of
any sort shall be permitted on Sundays or holidays.
F.
Permitted structures and equipment:
(1)
Structures. As part of the special permit, the Zoning
Board may allow a temporary steel structure no larger than 40 feet
by 80 feet, such structure to be promptly removed at end of mulching
operation. No cinderblock or concrete construction shall be allowed.
The Zoning Board may require sufficient security for the obligation
to remove the building at the end of the permit period. The Zoning
Board shall refer the application to the Architectural Review Board
for review and approval as part of the special permit. The Zoning
Board shall impose conditions to assure that the building is properly
screened and landscaped.
(2)
Equipment. As part of the special permit, the Zoning
Board shall approve all equipment to be permitted on the site for
use as part of the special permit operations, and no equipment shall
be permitted on the site other than that specifically authorized by
the Zoning Board.
G.
Permitted signage. Signage shall be governed by the
standards set forth in the Zoning Chapter, and shall be approved by
the Zoning Board as part of the special permit (or by the Planning
Board) as part of the site plan approval.
H.
Site plan. In addition to special permit approval,
site plan approval by the Planning Board is required, prior to the
commencement of any operations.
I.
Procedure for review of special permit application.
(1)
The review shall generally follow the standards set forth in Article IX of the Zoning Chapter, the article governing special permits. The applicant shall submit a copy of any Mined Land Use Plan and Reclamation Plan, together with a full description of proposed operations on the site.
(2)
In granting a special permit, the Zoning Board shall
have the authority to impose such reasonable conditions and restrictions
as are directly related to and incidental to the proposed special
use permit. Upon its granting of said special use permit, any such
conditions must be met in connection with the issuance of permits
by applicable enforcement agents or officers of the town.
(3)
Review of requests for extension shall follow the
same procedures. The applicant shall establish the status of the reclamation
efforts, and report on activities pursuant to the permit. The Board
shall review the pace of activities, the conformance with the conditions
of the special permit, and any impacts of the previous operations
upon neighbors or the public. Noncompliance with any of the provisions
of this section, or with any conditions of the special permit, shall
be a sufficient basis for the denial of the requested extension. In
considering an extension, the Zoning Board is authorized to impose
additional conditions to remedy or otherwise address any impacts of
the operations which have occurred during the previous permit periods.
[Amended 6-14-2001 by L.L. No. 3-2001]
In any district where permitted, membership clubs not operated for gain may be permitted by special permit, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
Location and use. Where clubs do not front on or have
direct access to a major or collector road as shown on the Town Development
Plan Map, the intensity of use shall be limited by the Zoning Board
to the extent necessary to assure that the expected average traffic
generation of such use will not exceed that which would be expected
if the premises were developed for permitted residential purposes.
B.
Lot size. The plot shall comprise a minimum of five
acres and membership is limited to 20 families per acre.
C.
Setbacks. No buildings, structure, equipment or play
area shall be located nearer than 40 feet to any front, rear or side
lot line.
D.
Landscape buffer area. A landscaped buffer area, meeting at least the minimum requirements of § 194-109 of this chapter, shall be required along all lot lines adjoining properties in residential districts.
[Amended 10-25-2012 by L.L. No. 8-2012]
E.
Special setback requirements. All active recreational facilities,
such as tennis courts and swimming pools, shall be located out-of-doors
except where the scale of buildings and setbacks are such that they
will relate harmoniously to the existing residential character of
the district in which they are located, and shall be set back from
adjacent residential property boundaries at least twice the minimum
distance required for residential buildings in said district, except
that the Zoning Board may permit a reduction of this additional setback
requirement where, because of topography or the installation of additional
landscape buffer and/or fencing, the Zoning Board determines that
any potential adverse external effect of such use can be effectively
reduced.
[Amended 10-25-2012 by L.L. No. 8-2012]
F.
Financial statement. Suitable evidence, such as tax
records or organizational documents, shall be provided as a part of
the special permit application to establish that the club will not
be operated for gain.
G.
Permanent dwelling facilities. Permanent dwelling
facilities shall not be provided except solely for the use of the
caretaker.
[Amended 6-14-2001 by L.L. No. 3-2001]
Mobile home parks may be established and maintained in an R-3 District, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
No mobile home, building or structure shall be located
nearer than 30 feet to any front, rear or side lot line of a mobile
home site nor closer than 50 feet to the boundary lines of the mobile
home park.
B.
The plot comprises a minimum of 10 acres and each
mobile home shall be located on a minimum lot area of 1/4 acre.
C.
Access roads shall be at least 50 feet in width.
D.
Water supply and sewage disposal shall have the approval
of the Dutchess County Health Department.
E.
The plot shall be maintained in single ownership and
its subdivision into mobile home lots of 1/4 acre or more shall be
for rental purposes only.
[Amended 6-14-2001 by L.L. No. 3-2001]
The Zoning Board of Appeals is authorized to grant a special permit for a private stable in the harboring or keeping of horses on a lot, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
Minimum acreage. The lot is of two acres or more in
area for one or two horses, with an additional 1/2 acre for each additional
horse.
B.
Setback. No building in which horses are kept shall
be located within 100 feet of a property line.
C.
Shelter. The horses shall be stabled or housed in
a structure with adequate shelter, ventilation, light and drainage.
D.
Feed containers. All feed shall be stored in rodentproof
containers, as determined by the Building Inspector.
E.
Storage of manure. No storage of manure shall be permitted
to exceed 10 cubic yards in quantity to be located within 100 feet
of a property line, watercourse or wetland area.
F.
Dwelling units. There shall be no dwelling unit in
the same building in which horses are stabled or housed, except as
specifically authorized by the Zoning Board of Appeals as part of
the special permit. The Zoning Board can grant such permit only on
a finding that no health hazard will be created, shall only be for
a professional caretaker for the stable, and the dwelling unit shall
meet all applicable building, housing, fire and sanitary codes.
G.
Confinement. The horses shall be adequately confined
to protect life and property.
H.
Dude ranches and commercial stables. Dude ranches,
commercial stables, keeping of hack horses for rent, riding academies
or any renting of horses to the public shall not be allowed under
this section.
I.
Use of horses. Horses shall be solely for the use
of residents and their guests.
J.
Other. All applicable standards set forth in this
chapter for farms are met.
[Amended 9-26-2000 by L.L. No. 11-2000[1]]
The Zoning Board of Appeals is authorized to grant a special permit for land excavations and filling, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
Activities covered.
(1)
The provisions of this section govern land excavation
and filling as defined in this chapter.
(2)
This section does not prohibit the regrading or movement
of earth materials within the boundaries of a single lot, subject
to applicable limits, provided that no earth material is removed from
the lot and no earth material is brought to the lot.
(3)
Nothing in this section shall be deemed to authorize
the dumping or depositing, at any premises, of garbage, refuse, household
garbage or waste, construction or demolition debris, hazardous materials,
or any materials other than clean fill or other uncontaminated earth,
clay, stone, gravel, loam, humus, or other earth materials.
(4)
The Schedule of Permitted Uses sets forth the types
of activities, if any, permitted in the various districts. Excavation
and filling are principal uses permitted by special permit only in
industrial zones (I-1, I-1-S, I-2, and I-3). Excavation and filling
are not permitted as principal uses in residential zones (R-1, R-2,
R-1/2 , R-1/3, R-1/4, CRD, PRD) or business zones (B-1 and B-2, PBN,
PCP, and PRDP). Certain limited types of excavation and filling are
permitted as accessory uses in R-1 and R-2 Zones and in the Active
Farm Overlay (AFO) District.
(5)
Effect on existing operations. Excavation, removal,
extraction, filling, regrading or earth moving operations in residential
districts which are operating as of November 11, 2000, pursuant to
a lawfully issued special permit issued by the Town of East Fishkill
Zoning Board of Appeals, and, if applicable, a Mined Land Reclamation
Law permit issued by the Department of Environmental Conservation,
may continue to operate under those special permits. Such special
permits may be renewed under the provisions of the law in effect at
the time the initial permit was issued.
B.
Supplemental regulations governing exempted activities.
(1)
The definition of "land excavation and filling" lists
five activities that are not deemed to constitute land excavation
and filling, provided that they meet the standards of these regulations.
(2)
All such activities require notice to the Building
and Zoning Administrator, and the completion of a notice form, to
be provided by the Building and Zoning Administrator, together with
the filing of a sworn statement from the property owner certifying
that:
(3)
In addition to the foregoing, the following activities
shall meet the following additional standards set forth below:
(a)
Regrading on a single lot. The property owner
shall describe the total amount of soil to be moved on the property,
and the length of the operation.
(b)
Road construction.
[1]
If the proposed roads are part of new subdivision
or site plan, all construction shall be performed in accordance with
the approved plans.
[2]
No stockpiling shall take place except in accordance
with plans approved by the Planning Board. All stockpiles must be
removed within six months.
[3]
No processing of materials on the property is
permitted.
(d)
Excavation from subdivision construction projects
in R-1 and R-2 Zones.
[1]
Any proposed excavation or filling shall be
approved by the Planning Board as part of the development of a filed
subdivision plat, upon a determination that the proposed activity
is necessary for the proper development of the site.
[2]
As part of the application for subdivision approval,
the applicant shall file a grading plan showing existing and proposed
contours and a report specifying the proposed tonnage and yardage
to be removed from or brought to the subdivision.
[3]
The Town Engineer shall confirm that the total
amount to be removed or brought to a site does not exceed the smaller
of the following: a total amount of 10,000 tons or 7,500 cubic yards
(whichever is smaller); or the number of tons or cubic yards computed
by multiplying the total number of lots to be created by the subdivision
times the amount of 500 tons or 375 cubic yards (whichever is smaller)
per lot. If the total amount to be removed or brought to the site
exceeds 1,000 tons or 750 cubic yards (whichever is smaller) in any
12 successive calendar months, the Building and Zoning Administrator
shall also determine that the activity constitutes "excavation, removal
and disposition of minerals from construction projects, exclusive
of the creation of water bodies" under the standards of 6 NYCRR Section
420.1(k) so as to be exempt from any requirements for a DEC Mined
Land Reclamation Permit.
[4]
In approving any proposed plan, the Planning
Board shall have the right to impose conditions upon the proposed
removal or filling operation.
[5]
No filling or removal shall commence until after
the subdivision map is filed, unless the Planning Board gives permission
to commence earlier, but in no event shall filling or excavation commence
prior to the issuance of preliminary subdivision approval.
[6]
No processing is permitted.
[7]
Stockpiling shall only be permitted in accordance
with plans approved by the Planning Board. All stockpiles will be
removed in six months.
(e)
Site plans.
[1]
The Planning Board may authorize excavation
or filling as an accessory use under the applicable use schedule,
as part of the development of a signed site plan if the standards
in this section are met.
[2]
The Planning Board shall determine that the
proposed regrading and removal or filling is necessary for the proper
development of the site.
[3]
As part of the application for site plan approval,
the applicant shall file a grading plan showing existing and proposed
contours and a report specifying the proposed tonnage and yardage
to be removed from or brought to the site.
[4]
The Town Engineer shall confirm that the total
amount to be removed or brought to a site does not exceed 500 tons
or 375 cubic yards, whichever is less, for the site.
[5]
In approving any proposed plan, the Planning
Board shall have the right to impose conditions upon the proposed
removal or filling operation.
[6]
No excavation or filling shall commence until
the site plan is signed, unless the Planning Board permits work to
commence earlier, but in no event shall any work commence prior to
the approval of the preliminary site plan.
[7]
The onsite processing of raw materials generated on the site
and to be utilized within the site shall be permitted pursuant to
this permit subject to all the standards set forth herein.
[Amended 1-24-2013 by L.L. No. 1-2013]
[8]
Stockpiling shall only be permitted in accordance
with plans approved by the Planning Board. All stockpiles will be
removed in six months.
(f)
Structural excavation and filling shall be an exempt activity
similar to the work that may be required for the installation of a
septic system. Structural excavation and filling is defined as "the
excavation of materials deemed unacceptable by a licensed professional
engineer for proper foundation bearing and construction." Such excavated
materials will be replaced with material deemed suitable by the design
engineer.
[Added 1-24-2013 by L.L. No. 1-2013]
C.
Supplemental regulations governing activities permitted
without a special permit.
(1)
The Schedule of Permitted Uses permits certain activities
by right, without the requirement of a special permit. Those activities
are subject to the following supplemental regulations.
(2)
All such activities require notice to the Building
Inspector, together with the filing of a sworn statement from the
property owner certifying that:
(3)
In addition to the foregoing, the following activities
shall meet the following additional standards set forth below:
(a)
Landscaping operations and building operations.
[1]
The property owner shall file with the Building
and Zoning Administrator documentation that the proposed removal or
filling is related to a bona fide landscaping operation on a lot upon
which a primary residence is located, or for which a current, valid
building permit has been issued.
(b)
Activities in Active Farm Overlay (AFO) District.
[1]
The property owner shall file with the Building
and Zoning Administrator a sworn statement confirming that the proposed
removal or filling is in aid of agricultural activities. Plans shall
include areas to be affected, plans for saving all topsoil, plans
for seeding and mulching affected areas, and final drainage configurations.
Excavation and filling operations are considered to be in aid of agricultural
activities where they meet all of the following standards:
[a]
The excavation or filling is clearly
incidental and secondary to the use of the farm for agricultural purposes,
and does not alter the character thereof. All excavation or filling
activity shall cease immediately upon the cessation of farming.
[b]
The excavation or filling operation
will enhance the usability or productivity of the land for farming
and agricultural activities. Proposing to excavate material from lands
which are not part of an existing farm operation and reclaim them
in a manner that makes them suitable for agricultural use will not
be considered in aid of agricultural activities. Permitted improvements
and enhancements may include structures or other improvements, including
ponds, that benefit or are necessary for agricultural pursuits. Such
ponds shall be no larger than required to meet agricultural needs
and must be directly related to agricultural use such as an irrigation
water source for crops, water source for livestock, or ponds for fish
propagation. Excavation or filling that makes land unsuitable for
agricultural use, or that does not enhance its usability for farming,
but that does enhance its usability for other purposes, such as residential
development, will not be considered "in aid of agricultural activities."
[c]
The enhancements resulting from
the excavation or filling must be associated with agricultural activity
which is either already occurring, or will commence immediately upon
completion of the regrading operation.
[d]
The excavation and restoration
activities must be completed within a twelve-month period from commencement.
[e]
The onsite processing of raw materials generated
on the site and to be utilized within the site shall be permitted
pursuant to this permit subject to all the standards set forth herein.
[Amended 1-24-2013 by L.L. No. 1-2013]
[2]
The Building and Zoning Administrator shall
also verify that the activity is considered in aid of agricultural
activities under 6 NYCRR Section 420.1(k) so as to be exempt from
the requirement of obtaining a New York State Department of Environmental
Conservation Mined Land Reclamation permit.
D.
Standards for issuance of a special permit by the
East Fishkill Zoning Board of Appeals.
(1)
Where the Use Schedule provides that an accessory use is permitted by special permit of the East Fishkill Zoning Board of Appeals, the Zoning Board may grant or renew a special permit, after a public hearing on due notice, if it finds that the special permit standards contained in § 194-44 and the supplemental use regulations contained in this chapter are satisfied. In approving any special permit, the Zoning Board of Appeals may also impose appropriate conditions under Town Law § 267-b, Subdivision 4.
(2)
Supplemental use regulations applicable to land excavation, filling, and regrading activities which require a special permit under this chapter and which are not also subject to regulation under the New York State Mined Land Reclamation Law are contained in Subsection E(1).
(3)
Supplemental use regulations applicable to land excavation, filling, and regrading activities which require a special permit under this chapter and which are also subject to regulation under the New York State Mined Land Reclamation Law are contained in Subsection E(2).
(4)
The maximum term for a special permit under this section
shall be two years. Renewal terms shall also be no longer than two
years.
E.
Standards.
(1)
The following supplemental use regulations shall apply
to land excavation, filling, and regrading activities which require
a special use permit under this chapter and which are not also subject
to regulation under the New York State Mined Land Reclamation Law.
The Zoning Board of Appeals shall find that all of the following standards
have been met:
(a)
Natural beauty. That the natural beauty of the
Town or district shall not be impaired or effected.
(b)
Proper drainage. That the plan provides for
proper drainage of the area both during and after the excavation,
filling or regrading and will not adversely affect the structural
safety of adjoining buildings or land.
(c)
Water bodies. When the proposed excavation or
filling operation requiring a special permit provides or contemplates
creation of a body of water, then either subdivision or site plan
approval by the Planning Board shall additionally be required.
(d)
Watercourses. No excavation or deposit of topsoil,
earth, stone, gravel, rock or other natural mineral shall interfere
with any natural watercourse.
(e)
Grade of abutting roads. No excavation shall
be made below the adjacent grade of any abutting road unless the Town
Board shall find that the peculiar conditions pertaining to the property
effected would justify such depth of excavation, in which case, the
Town Board may impose such further conditions as are, in its judgment,
appropriate to safeguard the public interest.
(f)
Water table. That there will be no excavation
to a depth of less than six feet above any ledge or the natural water
table unless the final approved site plan indicates a proposed conforming
use that requires a deeper excavation.
(g)
Contours. That no sharp declivities, pits, depressions
or soil erosion problems will be created and that no slopes or banks
will exceed one foot of vertical rise in two feet of horizontal distance
or exceed whatever lesser slope is necessary to maintain stability
under the particular soil conditions.
(h)
Setbacks. That a distance of not less than 50
feet shall be maintained undisturbed between any mining, filling or
regrading operation and any street right-of-way line. In all zones
other than the Active Farm Overlay District, a distance of not less
than 250 feet shall be maintained undisturbed between any such operation
and the property line of any residence. In the Active Farm Overlay
District, a distance of not less than 250 feet shall be maintained
undisturbed between any such operation and any residence. The Zoning
Board of Appeals may grant a variance of all or a portion of the setback
requirements of this section where the excavation limit will be to
an elevation equal to or above the grade of the adjoining property
or street, and where all other requirements are met.
(i)
Enclosure. That suitable fencing for enclosing
the property in which the soil mining excavation, filling or regrading
is located shall be provided if the Zoning Board of Appeals determines
that such is required.
(j)
Access. That the proposed truck access will
not create safety or traffic hazards.
(k)
Loading. That trucks and vehicles shall be loaded
and operated so as not to spill gravel, rocks or sand upon the roads
and highways or otherwise impair or damage the roads and highways.
(l)
Hours of operation. That operations will be
restricted to the maximum hours of 7:00 a.m. to 7:00 p.m., with no
operation allowed on Sundays and legal holidays. Exceptions can be
made for operations necessary during period of national or other unusual
emergency and whenever any reasonable or necessary repairs to equipment
are required to be made as determined by the Zoning Board of Appeals.
If appropriate, the Zoning Board may impose further restrictions on
hours of operation.
(m)
Noise and vibration. That no soil mining, filling
or regrading operation shall emit an injurious amount of noise or
vibration beyond such limits or contribute to soil erosion or cause
public hazard, nor increase the ambient level of atmospheric dust
beyond the limits of the bounds of the mining area as set forth by
the most current standards established by the New York State Air Pollution
Control Board. Upon written request of the Zoning Board or its agent,
the operation shall submit a certification from a qualified independent
laboratory that these standards are being complied with.
(n)
Dust. That proper provision will be made for
control of dust and that all roads within any mining or filling area
which are located within 500 feet of any structure used primarily
for human occupancy shall be provided a dustless surface.
(o)
Status reports. The Board may require the submission
by the applicant of periodic reports, prepared by and bearing the
seal of a land surveyor or engineer, showing the status and progress
of the excavation or filling.
(p)
Top layer of soil. For excavation and filling
the top layer of arable soil (for preferred depth of six inches) shall
be set aside and retained on the premises and shall be respread over
the excavated or filled area upon completion of the excavation or
removal in accordance with approved contour lines, and seeded with
a suitable cover crop.
(q)
Future use of property. The proposed excavation
or filling will not impair the future use of the property in accordance
with this chapter and banks will not impair good development and safe
use of the property after excavation. The Zoning Board may impose
conditions, including monitoring requirements, to ensure that this
standard is met.
(r)
Removal. At the termination of the approval
period, any structure, improvement, equipment or machinery erected,
placed or maintained upon such premises, except as may be otherwise
permitted under this chapter, shall be removed and the premises restored
to the contours authorized in the permit so that:
(s)
State Environmental Quality Review. All standards
of SEQR shall be met.
(t)
Special processing requirements.
[Added 1-24-2013 by L.L. No. 1-2013]
[1]
Materials process must be utilized on site only.
[2]
Processing shall only take place between the hours of 8:00 a.m.
and 5:00 p.m. Monday through Saturday.
[3]
No processing shall take place within 1,000 feet of a private
residence.
[4]
Stockpiles shall have proper erosion control, and stockpiles
shall not remain on site for more than one year without further approval
of the Town.
[5]
Processing shall be limited to the following:
[a]
Crushing shall be limited to rock, boulders, concrete,
pavement, asphalt, or masonry, all of which must be located on the
site subject to the approvals and permit.
[b]
Screening shall be limited to dirt, topsoil or
bank run gravel.
[c]
Man-made materials, such as shingles, tires, lumber,
sheetrock, glass, demolition debris, etc., shall not be processed
on the site.
[d]
Except as modified herein all other appropriate
standards set forth in this section shall be applicable and reviewed
by the permit granting authority.
[6]
Time period. The Planning Board shall set the time period within
which processing can take place but not more than for 30 days (total
time) unless more time is granted due to special circumstances such
as size of project or physical conditions.
(2)
The following supplemental use regulations shall apply
to land excavation, filling, and regrading activities which require
a special use permit under this chapter and which are also subject
to regulation under the New York State Mined Land Reclamation Law.
The Zoning Board of Appeals shall find that all of the following standards
have been met:
(a)
Natural beauty. That the natural beauty of the
town or district shall not be impaired or affected.
(b)
Proper drainage. That the plan provides for
proper drainage of the area both during and after the excavation,
filling or regrading and will not adversely affect the structural
safety of adjoining buildings or land.
(c)
Water bodies. When the proposed excavation or
filling operation requiring a special permit provides or contemplates
creation of a body of water, then either subdivision or site plan
approval by the Planning Board shall additionally be required.
(d)
Watercourses. No excavation or deposit of topsoil,
earth, stone, gravel, rock or other earth material shall interfere
with any natural watercourse.
(e)
State Environmental Quality Review (SEQR). All
standards of SEQR shall be met.
F.
Applications. Application for a special permit shall
be submitted in writing to the Zoning Board of Appeals. The application
shall be accompanied by 10 copies of maps and plans prepared by an
engineer or surveyor licensed to practice in the State of New York
and showing the following:
(1)
Participants. The full names, signatures and addresses
of the owner, lessee and applicant and the written consent of the
mortgagee, if any.
(2)
Description of proposed operations. A statement clearly
detailing the nature and extent of operations, including the type
and amount of material to be filled, regraded or removed, the manner
in which it will be accomplished, the proposed hours of operation,
and a time schedule for the completion of the various stages of the
operation.
(3)
Boundaries of property. The boundaries of the property
where the excavation is proposed and the area to be excavated, filled
or regraded.
(4)
Existing contours. Existing contours in the area of
operations and proposed contours after completion of the work, which
contours shall be prepared from an actual field survey, shall be based
on a bench mark noted and described on the map and shall be drawn
to a scale of not less than 100 feet to the inch and with a contour
interval not to exceed two feet. If necessary, the Board may require
more detailed contours. If the Zoning Board finds that an actual field
survey is not necessary in order for it to make a proper determination
of the application, the Board may waive the requirement of such survey.
(5)
Existing and proposed water bodies and drainage. Existing
and proposed watercourses, water bodies, erosion control and drainage
on the premises.
(6)
Surrounding area. Surrounding streets and property
lines and names of property owners.
(7)
Natural features. Principal wooded areas, any rock
outcrops and watercourses.
(8)
Existing and proposed structures. Existing and proposed
structures on the premises and surrounding properties.
(9)
Truck access. Proposed truck access to the excavation,
filling or regrading area.
(10)
Liens. Proof that there are no unpaid taxes
or assessments affecting or constituting a lien on the premises.
(11)
Phasing plan. Phasing plan for operations and
restoration of the site.
(12)
Other. Such other maps, plans, boring tests,
feasibility studies and there engineering data as may be required
by the Town Board in order to determine and provide for the proper
enforcement of these regulations.
(13)
State Environmental Quality Review. The application
must include an environmental assessment form and such information
necessary to comply with SEQR.
G.
Administration.
(1)
Bond. The operator shall execute a bond in an amount
sufficient to secure the performance of the conditions and issuance
of the special permit.
(2)
Compliance. If at any time the Zoning Board of Appeals
finds that the excavation, removal, filling or regrading is not being
conducted, or cannot be conducted, in accordance with the plans as
approved, the permit shall automatically become void upon notification
sent by the Board to the permittee, by regular mail, to the address
given on the application.
(3)
Inspection fees. That the applicant shall pay an annual
inspection fee as set from time to time by the Town Board. Nonpayment
of this fee shall cause the permit to become void.
[Amended 6-11-1998 by L.L. No. 5-1998[1]]
The Zoning Board of Appeals is authorized to grant a special permit for commercial communications towers and antenna installations, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in §§ 194-77 through 194-84.
A.
The construction, placement, maintenance, removal and use of commercial communications towers and antenna installations shall be governed by this section, and not by § 194-161, or any other section dealing with public utility structures or utility substations. No commercial communications tower shall be placed, constructed or used, and no such tower, including any towers in existence before the effective date of this section, may be modified, moved, reconstructed, expanded, changed or structurally altered, without compliance with this section. The addition of new antenna installations to an existing tower shall be considered a change requiring compliance with this section.
B.
No commercial communications antenna installation
shall be placed, located or collocated on a tower, building or other
structure, or used, and no such installation, including an installation
placed, located or collocated before the effective date of this section,
may be modified, moved, reconstructed, expanded, changed or structurally
altered without compliance with this section.
C.
All construction relating to the establishment or
modification of a commercial communications towers or antenna installations,
including but not limited to the placement of a tower, the modification
of a tower, the placement of additional or modified antenna on a tower,
the construction or modification of accessory utility buildings, and
related activities, shall require issuance of a special permit approval
by the Zoning Board, as set forth herein. No building permit shall
be issued until the special permit has been issued.
D.
Compliance with each and all of the locational, design,
bulk and area requirements of this section is required for the issuance
of any special permit. The Zoning Board does not have the authority
to waive any of the requirements for a special permit in the guise
of an "area variance" of any of those requirements. The placement
of towers or antenna installations which do not comply with the use
and locational requirements of this section is prohibited, and may
be authorized only upon the issuance of a use variance from the Zoning
Board of Appeals. The standards to be applied in determining whether
to grant such a use variance shall be those set forth in Town Law
§ 267-b or, where applicable, under the standard enunciated
by the New York Court of Appeals in Consolidated Edison Co. V. Hoffman,
43 N.Y.2d 598, 403 N.Y.S.2d 193 (1973), as further applied by the
Court of Appeals in Cellular Telephone Co. V. Rosenberg, 82 N.Y.2d
3-64, 604 N.Y.S.2d 895 (1993), as such standards may be modified by
statute or case law in the future. In providing that no area variances
may be given from any of the standards set forth in this section to
qualify for such special permits, it is the town's specific intention
to supersede the provisions of Town Law § 274-b, Subdivision
3, (L. 1992, ch. 694), insofar as this section has been interpreted
to allow the granting of such area variances.
E.
All applications must also comply with any applicable
provisions of state or federal law, including the provisions of the
Code of Federal Regulations pertaining to objects affecting navigable
airspace as delineated in Federal Aviation Regulation (FAR) Part 77.
Additionally, no application for construction of a communications
tower will be approved if the proposed tower violates the criteria
for obstructions to air navigation as established by FAR Part 77 Subpart
C - Obstruction standards.
F.
Effect on pending applications. Applications to construct
a tower or collocate antennas pending before any Board of the town
at the time of adoption of this section shall continue to be processed
to minimize delay and expense to the applicant as much as possible.
Applicants shall submit any additional information required by this
section to the Zoning Board. Information already on file with the
reviewing Board shall be used to the extent applicable to satisfy
submission requirements under this section. All pending applications
shall be decided under the provisions of this article, and a public
hearing under this section shall be promptly scheduled as soon as
the applicant submits the information required by this section.
G.
Exemptions from coverage by this section. This section
does not cover police or fire communications, or facilities used exclusively
for private radio and television reception and private citizen's bands,
amateur Ham radio and other similar private, residential communications
systems, provided that such systems do not contain a commercial telecommunications
antenna installation and are not located on a commercial telecommunications
tower. If any question arises under this section as to whether a particular
tower or other facility is covered by this section, the Zoning Board
of Appeals is empowered to interpret this section in the same manner
as interpretations of other provisions of the Zoning Chapter.
A.
Except as specifically provided in Subsection B herein, in any district where permitted by special permit, as set forth under the use schedules, the Zoning Board shall be authorized to issue a special permit to authorize the construction of commercial communications towers and antenna installations, upon compliance with the following standards, in addition to the general standards for obtaining a special permit set forth in Article IX. The review shall generally follow the procedures set forth in § 274-b of the Town Law of the State of New York, and the town's special permit regulations, including the provision for public hearings. The Zoning Board's review hereunder includes a review of the elements of the site plan, and shall be deemed to satisfy the requirements of § 194-24C (site plan review) of the Zoning Chapter, without the need for any separate site plan review by the Planning Board. Architectural Review Board approval shall not be required.
B.
Overlay areas where new towers may not be located.
Even if otherwise permissible under the zoning use schedule, no commercial
communications tower shall be placed in any of the following overlay
scenic areas:
(1)
Within 3,000 feet, in any direction, of the intersection
of Route I-84 and the Taconic State Parkway.
C.
Escrow deposits for review fees by technical consultants.
Applications under this section shall be subject to the provisions
of Local Law No. 1 of 1996, which requires escrow deposits for professional
review fees, in addition to the application fee. Professional review
for the purposes of this section shall include the services of a qualified
engineer or consultant to evaluate the application.
A.
Structures eligible for placement of additional antenna
installations. The following structures are eligible for collocation,
if such collocation is permitted by the use schedule and by the other
applicable provisions of this law:
(1)
Towers receiving all necessary approvals under former § 194-76 of the Zoning Chapter to allow commercial communications activity. Any proposed alterations to the tower to accommodate additional antenna, including any alteration or expansion of the tower base, and any increase in height shall require special permit approval as part of the review on the application for the special permit for the antenna installation. Noncommercial towers, including facilities used for private citizen's bands, amateur radio and other private residential communications are not eligible for collocation. Commercial towers which did not receive approvals under § 194-76 are considered to be in violation of the code, and are not eligible for collocation unless the tower first receives approvals under this section.
(2)
Commercial communications towers lawfully placed after
the enactment of this section, provided that the structure can safely
support the additional antenna installations as set forth in this
section. Noncommercial towers, including facilities used for private
citizen's bands, amateur radio and other private residential communications
are not eligible for collocation.
(3)
Other tall structures, including buildings, water
towers, salt sheds, roadway maintenance facilities, recreation facilities,
scoreboards, lighting at recreation fields, and similar facilities,
located on property owned by the Town of East Fishkill, or other municipal
or governmental entities; or water towers, power transmission lines,
public utility poles, church steeples and other similar structures
or buildings, as interpreted by the Zoning Board of Appeals.
B.
Application for proposed collocated commercial telecommunications antenna installation on existing tower, or placement on an eligible structure. An applicant proposing to collocate a commercial telecommunications antenna installation on an existing tower or to place same an eligible structure, as allowed in the use schedules, shall apply to the Zoning Board for special permit approval. The review shall generally follow the procedures set forth in § 274-b of the Town Law and the town's special permit regulations in Article IX. Architectural Review Board approval shall not be required. The applicant shall submit the following information:
(1)
A completed application for a building permit.
(2)
Proof of compliance with all requirements for a special
permit, including the provisions of this section.
(3)
An engineer's report describing the proposed changes,
expansions or modification to the existing tower or other structure,
and certifying that the proposed collocation will not diminish the
structural integrity and safety of the existing tower or other structure
upon which collocation is proposed. If the alterations would alter
or expand the tower base, or increase the height of the tower by more
than 15%, then the application shall be treated as one for a new tower.
(4)
A report, prepared by a qualified professional, confirming
that the level of radio frequency (RF) emissions from the proposed
installation (and any collocated installations) are within standards
promulgated by the Federal Communications Commission (FCC).
(5)
Documentation of consent by the owner of the structure
upon which the antenna is to be located.
(6)
Where collocation is proposed on a building or structure,
the applicant shall provide architectural elevations and sections
illustrating the proposed commercial telecommunication antenna installation
at appropriate scales, but no smaller than 1 inch equals 10 feet.
Elevations shall be provided for the building front and the side nearest
the proposed antenna installation. For collocation on structures,
two significant vantage points shall be evaluated by the applicant
as part of its submission to the Zoning Board. The Zoning Board may,
during its consideration of an application require evaluation of other,
significant vantage points, as are necessary to evaluate the visual
impacts of each installation.
(7)
A full EAF, stating whether the proposed location
is within the following viewsheds. If so, a visual EAF addendum shall
be attached.
|
Views to or from the Appalachian National Scenic
Trail
| |
|
Views from Shenandoah, Route 52, the Taconic
Parkway and I-84 to Hosner Mountain
| |
|
Views from Route 52 and I-84 to Stormville Mountain
| |
|
Views from Route 52 and I-84 to the mountains
of Wiccopee.
| |
|
Areas hereafter identified as significant scenic
viewsheds in the Master Plan.
|
(8)
A drawing at a suitable scale (one inch equals 50
feet or one inch equals 100 feet) which shows the following elements:
(a)
Site location map. Site location map at one
inch:2000 feet (USGS scale).
(b)
Ownership. Property lines, tax map parcel identification
and names of all adjoining property owners and streets.
(c)
Land uses. Land use designations and existing
land uses of proposed site and adjoining properties.
(d)
Existing and proposed improvements. All existing
and proposed structures and improvements, including antennas, roads,
buildings, guy wires and anchors. The applicant shall indicate property
boundaries and setback distances for all proposed improvements, including
distances to the nearest corners of existing towers, buildings and
structures proposed for collocation.
(e)
Site disturbance plan. Site disturbance plan
indicating limits of areas where vegetation is to be cleared or altered.
Where clearing of wooded areas is proposed, the applicant shall explain
the reasons for such clearing, and discuss alternative plans that
would minimize such clearing and retain more vegetation for site screening
and shading.
(f)
Parking and landscaping plan. Parking and landscaping,
including any proposed site grading and drainage.
(g)
Screening. The site plan shall describe any methods to be used to screen or conceal the proposed modification of the existing building, tower or other structure. The Board may require architectural elevations and/or visual simulations to ensure adequate screening from views identified in Subsection B(6) above.
(9)
The applicant must show that the property on which
the proposed facility is located is in compliance with any previously
approved site plan. If the site does not comply, it must be brought
into compliance prior to any approval of the cell tower application.
A.
An applicant proposing to construct a new commercial communications tower as permitted in the use schedules, shall apply to the Zoning Board for special permit approval. Architectural Review Board approval shall not be required. The application for a special permit shall generally follow the standards of Article IX of the Zoning Chapter. It shall contain, at a minimum:
(1)
A report providing documentation of an actual need
by an actual provider of communications services for the construction
of the tower in order to provide communications services. Special
permits are to be based on actual need, and not on speculation of
possible future needs which may or may not materialize.
(2)
Radial plots depicting the anticipated radio frequency
levels and coverage for the proposed site.
(3)
Radial plots depicting evidence that the proposed
area to be provided coverage by the proposed new tower is currently
deficient in radio frequency coverage.
(4)
The frequency spectrum (output frequency) to be used
at the proposed site (cellular, personal communications systems, broadcast
frequency, analog or digital, etc.).
(5)
A map depicting the applicant's network of towers
within 10 air miles of the proposed site, including planned or proposed
towers or antenna installations to be erected within the next 24 months
of the date of the application.
(6)
A copy of a current FCC license that authorizes the
applicant to provide service.
(7)
The type, manufacturer, model number of the proposed
tower.
(8)
The height of the proposed tower, including the height
of any antennae structure above the supporting structure of the tower.
(9)
The number of proposed antennas, type, manufacturer,
model number, dB gain, size and orientation of the proposed tower.
(10)
Proof of compliance with all requirements for
a special permit, including the provisions of this section.
(11)
A statement of how the application meets the
following siting objectives for new towers:
(a)
A new tower shall, to the extent possible, be
sited where its visual impact is least detrimental to the scenic areas
and ridge lines identified in this section or in the town's Master
Plan, or to historic resources. If a significant adverse visual impact
is identified, the applicant shall demonstrate that suitable landscaping,
buffering or other techniques will be used, and that they are able
to minimize such impacts to a level of insignificance.
(b)
A new tower shall, to the extent possible, be
sited distant from residential properties, and where visual impacts
upon residential properties can be minimized.
(c)
Antenna installations shall, when possible,
be collocated either on existing towers or on eligible structures,
unless it is clearly shown that shared use of existing tall structures
and existing or approved communications towers is undesirable or unattainable,
due to the absence of existing towers or eligible structures for collocation;
the technical infeasibility of collocation in light of the applicant's
system requirements, frequency incompatibilities or engineering limitations;
the existence of physical constraints that render the collocation
infeasible; the inability to secure permission to collocate, in spite
of good faith efforts; or the applicant's proposed collocation on
the site would have an adverse impact an the surrounding area which
exceeds that of the proposed new tower, or would create a need for
a greater number of towers to provide service, which when considered
together, would have a cumulative adverse effect on surrounding areas
which exceeds that of the proposed tower.
[1]
The application shall include a report with
an inventory of all existing eligible tall structures and existing
or approved communications towers eligible for collocation within
a two-mile radius of the proposed site. The site inventory shall include
a map showing the exact location of each site inventoried, including
latitude and longitude (degrees, minutes, seconds), elevation above
sea level, height of the structure and/or tower and accessory buildings
on the site. The report shall outline opportunities for shared use
of these facilities as an alternative to the proposed new communications
tower. The report shall demonstrate good faith efforts to secure shared
use from the owner of each potential existing eligible tall structure
and existing or approved communications tower. The report shall document
the physical, technical and/or financial reasons why shared usage
is not practical in each case. Copies of any written requests for
collocation, and the responses thereto, shall be submitted to the
Board.
[2]
The application shall include an agreement to
accept reasonable collocation on the proposed tower in the future.
An applicant proposing to place a new commercial telecommunication
tower, or modify an existing tower to accept a new antenna installation,
shall commit, on behalf of itself and its successors to negotiate
in good faith for reasonable shared use of the tower by other providers,
should same be proposed in the future, and to rent or lease available
space under the terms of a fair market lease, without discrimination
to other providers. A letter documenting the applicant's intent to
negotiate in good faith for such use shall be part of the application
for any special permit or site plan approval, and shall be filed with
the building inspector as part of any building permit application.
Where the applicant is other than the owner of the site, the applicant
shall provide assurance to the Board that the owner will also consent
to the collocation in the future.
(d)
Towers and antenna installations shall be sited
to minimize the total number of towers and antennas to the extent
possible within the limits of technology and economic feasibility.
(12)
A long-form EAF, including an analysis of visual
impacts. The applicant shall submit a viewshed analysis to determine
the visual impacts of the proposed town's siting. The analysis shall
include a completed SEQR Visual EAF Addendum, assessment of the tower's
siting from significant vantage points and/or historic and scenic
resources by balloon testing or similar methodology, as well as visual
simulations of the proposed tower's siting by means of photomontage
or architectural renderings.
(a)
Significant vantage points potentially impacted by the proposed facility shall be determined by the Zoning Board, such as views from state and local road adjacent to the proposed site, recreation areas, housing developments and local, state or national historic and scenic resources. A viewshed assessment must be performed for all scenic areas identified in § 194-79B(7) within 1/2 mile of the proposed tower site. The viewshed assessment should be performed, when possible in the winter months to ensure a thorough examination of potential impacts. Even if this is not possible, the viewshed analysis should include an evaluation of anticipated visual impacts during the winter months when leaves are not on the trees. Findings presented shall include color photography illustrating the prescribed assessments and a key map which identifies the project site, photographic locations and target points.
(b)
The methodology, date and time of all testing
related to prescribed viewshed assessments shall be approved by the
Zoning Board prior to implementation. The Zoning Board shall direct
the applicant to provide public notification in the town's official
newspaper of the assessment, including date, time and testing location,
at least seven and no more than 14 days in advance of the test date,
together with such other notification as the Board may deem appropriate.
(13)
A report by a qualified engineer, regarding
non-ionizing electromagnetic radiation for the proposed site. Such
report shall provide sufficient information to detail the amount of
radio frequency radiation expected from the proposed site. The report
will comply with FCC reporting criteria for a cumulative report, reporting
levels of anticipated exposure from all users on the site. The report
shall indicate whether or not the proposed tower will comply with
FCC emission standards.
(14)
The applicant must show that the property on
which the proposed tower is located is in compliance with any previously
approved site plan. If the site does not comply, it must be brought
into compliance prior to any approval of the cell tower application.
B.
The Zoning Board may also, during its review of an
application, request such other and further information as it finds
necessary to make a thorough evaluation of the applicant s proposal.
A.
A public hearing shall be held pursuant to the provisions
of the Town Law and the East Fishkill Code relating to special permits.
B.
In addition to any other notice requirements imposed
by these sections, the Board may direct the applicant to send notice
of such public hearing to:
(1)
All owners of any land within 250 feet of any property
line of the lot on which the tower is to be located, or such further
distance as it deems appropriate in light of the anticipated visibility
of the tower; and
(2)
The administrator of any local, state or federal parklands
within 1/2 mile of the proposed tower.
No special permit for a communications tower or a communications antenna installation shall be granted absent a finding by the Zoning Board that the applicant has met the standards for special permits set forth in Article IX of the Zoning Chapter, and has also met the following criteria:
C.
That, where a new tower is proposed, the applicant
has shown an actual need for construction of the new tower.
D.
That, where a new tower is being proposed, the applicant
has demonstrated that shared use of existing tall structures and existing
or approved communications towers is undesirable or unattainable,
due to:
(1)
The absence of existing towers or eligible structures
for collocation.
(2)
The technical infeasibility of collocation in light
of the applicant's system requirements, frequency incompatibilities
or engineering limitations.
(3)
The existence of physical constraints that render
the collocation infeasible.
(4)
The inability to secure permission to collocate, in
spite of good faith efforts.
(5)
The applicant's proposed collocation on the site would
have an adverse impact on the surrounding area which exceeds that
of the proposed new tower, or would create a need for a greater number
of towers to provide service, which when considered together, would
have a cumulative adverse effect on surrounding areas which exceeds
that of the proposed tower.
E.
That the tower owner, and its agents, if applicable,
have agreed to rent or lease available space on the tower, under the
terms of a fair-market lease, without discrimination to other providers.
F.
That the proposed antenna installation or tower will not have a significant adverse impact on scenic resources identified in § 194-79B(7) or on historic resources. If a significant adverse visual impact is identified, the applicant shall demonstrate that suitable landscaping, buffering or other techniques will be used, and that they are able to minimize such impacts to a level of insignificance.
G.
That the proposal shall comply with applicable FCC
regulations regarding emissions of electromagnetic radiation and that
the required monitoring program is in place, and paid for by the applicant.
Special permits may be issued subject to conditions,
as authorized by law, including the following:
A.
The Board may require the use of "camouflage" communications
towers where necessary to minimize visual impacts and to blend the
communications tower and/or its accessory structures into the natural
surroundings. "Camouflage" is defined as the use of materials incorporated
into the communications tower design that give communications towers
the appearance of tree branches and bark coatings, church steeples
and crosses, sign structures, lighting structures or other similar
structures.
B.
The Board shall require testing and inspection.
(1)
RF emission standards.
(a)
Pretransmissions testing: Any building permit,
site plan or special permit shall be deemed to be issued subject to
the condition that, prior to the issuance of a certificate of occupancy
and the commencement of transmission, the applicant shall provide
adequate proof to the Town Zoning Administrator, subject to review
by the town's engineering or other consultants, that the EMF radiation
around the proposed tower or antenna installation site complies with
FCC requirements. All tests shall be performed by engineers or consultants
qualified in the field of telecommunications and radio frequency and
shall be conducted in accordance with the requirements of 47 CFR and
shall be certified to the Town of East Fishkill.
(b)
Postcommencement testing: After transmission begins, testing and certification of EMF radiation shall be required in accordance with the requirements set forth in the preceding subsection at the time of any change or alteration of the operating characteristics of the tower. These results shall be reported to the Zoning Enforcement Officer within 30 days of the change or alteration. If there is no change or alteration in the operating characteristics of the tower, the owner shall provide the results of such testing every three years, together with the testing required in § 194-83B(2)(a) below, and shall also file, at least yearly on January 2 of each year, a written certification that the operating characteristics of the tower or installation have not changed, or been altered.
(c)
Any noncompliance with applicable FCC RF emission
standards shall be promptly cured.
(2)
Structural and safety testing.
(a)
Tower owners shall cause their towers to be
inspected for structural integrity and safety by an independent licensed
professional structural engineer at least every three years. The first
inspection shall be within three years of the date approvals were
granted. Safety inspection shall include, at a minimum, inspection
of the condition of the tower, its supports, foundations, anchor bolts,
coaxial cable, cable supports, ice shields, cable trays, guy wires
and antennas affixed to the tower. The tower shall also be inspected
for fire, electrical, natural and other man-made hazards that could
pose a potential hazard to the tower or surrounding area. A report
of the inspection results shall be certified and submitted to the
Zoning Enforcement Officer. Any modification of an existing tower
which includes changes to tower dimensions or numbers or types of
antenna shall require a new structural and safety inspection. Any
defects revealed in such an inspection shall be promptly cured.
C.
The Board shall require assurances regarding the removal
and repair of towers.
(1)
The applicant shall submit to the Board an agreement
committing the property owner, its agents and successors, to keep
the tower and accessory structures in good order and repair, and in
compliance with any approval, and to promptly notify the Zoning Enforcement
Officer within 60 days of the discontinuance of use of the tower.
If there are two or more operators or users of a tower, then the notice
need only be served when all have ceased using the tower.
(2)
The owner shall promptly remove an unused commercial communications tower within 12 months of cessation of operation. The failure to remove such towers in accordance with this law shall be punishable pursuant to Article XXII, Violations, of the Zoning Chapter. Additionally, the town may bring proceedings to require the removal of such unused towers at the owners expense.
(3)
When the Zoning Enforcement officer has reason to
believe that a tower has been unused for more than six months, but
has not received notice of discontinuance from the owner, the Zoning
Enforcement officer may serve a notice upon the owner at its last
known address, stating the date on which the ZEO believes that the
use of the tower was discontinued, requesting the owner to take responsibility
for removal of the tower, and stating that the failure of the owner
to take responsibility for the tower will result in a determination
of abandonment of the approvals previously issued for the tower. If
the owner fails to appear to assure the ZEO that he will take responsibility
for timely removal of the tower, or to establish that the tower is
actually in use, within 60 days of the mailing of the notice to owner's
last known address, then the ZEO may make a finding that the tower
has been abandoned, and all approvals previously granted by the town
for such tower shall be considered abandoned and forfeited. A copy
of this determination shall be mailed to the owner and filed in the
building inspectors office.
All newly constructed towers, all modifications
of existing towers, and all newly installed antenna installations
shall comply with the following design and construction requirements:
A.
Towers and antennas. New or modified commercial telecommunication
towers and antenna installations shall meet the following design and
construction requirements:
(1)
Allow collocation in the future. An applicant proposing
to place a new tower shall cause it to be designed in a manner which
will accept collocation of other commercial telecommunications antenna
installations in the future, in accordance with this chapter. Commercial
telecommunication towers shall be designed structurally, electrically
and in all respects to accommodate shared use for at least one other
user if the tower is over 60 feet in height, and at least two additional
users if the tower is over 100 feet in height. Towers must be designed
to allow for future rearrangement of antennas upon the tower, and
to accept antennas mounted at varying heights. The applicant shall
document the tower's capacity including the number and type of antennas
it can accommodate and potential mounting locations. Where an existing
tower is being modified to accept one additional antenna, the reviewing
board may require that the owner shall take reasonable steps to modify
the tower so that it may accommodate another potential future user,
if the tower, as modified to accommodate the additional user, will
be over 100 feet tall.
(2)
Color. Towers shall be painted with a flat paint in
a gray or blue shade, except in instances where a different color
is mandated by federal or state authorities. Any antenna component
of a commercial communication antenna installation shall, when feasible,
be painted in a shade which blends with the color of the host tower,
building or structure to which it is attached.
(3)
Facilitating future collocation. Where practicable,
towers should be designed and constructed in a manner which will accommodate
future collocation.
(4)
Structural design. Towers shall be designed structurally
to collapse within themselves wherever possible, in order to minimize
damage to nearby structures and properties.
(5)
Compliance with state and federal law. Towers shall
comply with all applicable provisions of the Uniform Building and
Fire Prevention Code, and all applicable FAA and FCC requirements.
(6)
Noise. Towers and commercial telecommunications antenna
installations, and their accessory structures and improvements shall
be designed to minimize noise generation by power generators, heating,
ventilating and air conditioning, and any other noise source, particularly
if there is a residential receptor of such noise nearby.
B.
Accessory buildings and structures. All buildings
and structures accessory to the operation and use of a commercial
telecommunications tower shall meet the following requirements:
(1)
They shall be designed to blend with the surrounding
natural environment and minimize visibility of the building or structure.
The buildings shall not be more than 12 feet high. Architectural Review
Board approval shall not be required.
(2)
They shall comply with all applicable provisions of
the Uniform Building and Fire Prevention Code.
(3)
They shall be used only for housing equipment related
to the particular site. Wherever possible, the buildings shall be
joined or clustered so as to appear as one building.
C.
Site layout requirements:
(1)
Access.
(a)
Adequate emergency and service access shall
be provided in a manner which minimizes ground disturbance, vegetation
cutting and site erosion. Road grades shall follow natural contours
to minimize visual disturbance and reduce soil erosion potential.
(b)
All network interconnections to and from the
telecommunications site and all power to the site shall be installed
underground, unless the applicant satisfactorily establishes that
this is not possible because of the nature of the subsurface conditions,
or is not desirable for environmental reasons, or would have adverse
visual impacts. At the initial construction of the access road to
the site, sufficient conduct shall be laid to accommodate the maximum
possible number of communications providers that might use the facility.
(2)
Parking. A minimum of two parking spaces shall be
provided for each commercial telecommunications tower which houses
a commercial telecommunications antenna installation.
(3)
Fencing. Towers and any accessory structures thereto
shall be adequately enclosed by a fence and gated for security purposes.
All proposed guy wires shall be located within any required fencing.
The Zoning Board shall approve the height and design of the fence.
If the applicant demonstrates that it has otherwise provided sufficient
security for the site, the Zoning Board may accept alternate security
provisions.
(4)
Signs and advertising. The use of any portion of a
commercial telecommunications tower for other than warning or equipment
information signs is prohibited. Commercial telecommunications towers
or antennas shall not be used for advertising by the provider. A sign
no greater than two square feet may be placed indicating the name
of the facility, its owners, and a twenty-four-hour emergency phone
number. "No Trespassing" or other similar warning signs may also be
placed on the fenced border of the property.
(5)
Lighting.
(a)
Commercial telecommunications towers shall not
be illuminated by any artificial means, including strobe lighting,
unless lighting is required by the Federal Aviation Administration
(FAA), the Federal Communications Commission (FCC) or other federal
or state authority. If a tower is within two miles of an airport,
the applicant shall provide written documentation by the FCC as to
whether or not it will require lighting of the tower.
(b)
Lighting of the grounds of the facility shall
be in keeping with the needs of safety and the surrounding neighborhood.
No light shall spill from the site onto surrounding properties.
(6)
Screening. To the extent possible, the applicant shall
preserve existing vegetation in a band at least 50 feet deep along
the borders of the property which screen views of a commercial communications
tower and accessory structures from nearby properties. The reviewing
board may require the applicant to provide supplementary landscaping
to screen views of the base of the tower and accessory buildings or
structures in situations where the tower site:
(a)
Abuts property in a residential zone, a public
street or property owned by the town, county, state or federal government
or school district.
(b)
Abuts or is otherwise visible from the following
identified viewing points, if such screening will actually mitigate
visual impacts upon such resources. While it will likely be impossible
and impractical to provide complete screening of long-range views
of any tower, this section is intended to provide screening of relatively
short-range views, i.e., 50 to 750 feet, by the provision of six-foot
tall evergreen, or other plantings, as approved by the Board, sufficient
to provide year-round screening.
|
Views to or from the Appalachian National Scenic
Trail.
| |
|
Views from Shenandoah, Route 52, the Taconic
Parkway and I-84 to Hosner Mountain.
| |
|
Views from Route 52 and I-84 to Stormville Mountain.
| |
|
Views from Route 52 and I-84 to the mountains
of Wiccopee.
| |
|
Areas hereafter identified as significant scenic
viewsheds in the Master Plan.
|
(c)
In such cases, landscape screening shall be
provided to screen views from such property, around the perimeter
fencing of the tower, and around all accessory structures. At a minimum,
screening shall include evergreen plantings at a height of six feet,
as determined by the Zoning Board, to ensure that views of accessory
structures are suitably screened from neighboring uses, and that views
of the base of the tower are screened to the extent reasonably practical.
D.
Locational placement requirements. Commercial communications
towers and antenna installations shall meet the following minimum
requirements in any zone where they are permitted. These criteria
are in addition to the bulk requirements applicable in the zone. Where
the bulk regulations and these regulations impose different requirements,
the more restrictive will control.
(1)
Permissible number of towers on a lot. Whether a commercial
telecommunications tower is a principal or accessory use on a lot,
there shall be no more than one such tower on any lot, together with
any permitted ancillary buildings, structures and parking facilities.
The Town of East Fishkill does not permit what are known as "tower
farms."
(2)
Required segregation from nearest habitable structure.
No tower shall be placed closer than 500 feet, on a horizontal plane,
to the nearest house or other residential habitable structure, or
proposed house or other residential habitable structure as shown on
a lot duly approved by the Planning Board and filed in the Dutchess
County Clerk's office.
(3)
Required separation between towers in residential
zones. In a residential zone, a tower shall not be placed closer than
1,500 feet from any existing commercial communications tower, whether
such existing tower is in a residential zone or any other zone.
(4)
Minimum lot size.
(a)
Freestanding new commercial telecommunications
tower as primary use: one acre or the underlying minimum lot size
in the zone, whichever is greater.
(b)
Freestanding new commercial telecommunications
tower as accessory use to existing structures: one acre or the underlying
minimum lot size in the zone, whichever is greater.
(c)
Collocated commercial telecommunications antenna
installation placed on existing building, structure or tower: one
acre or the underlying minimum lot size in the zone, whichever is
greater.
(5)
Minimum yards/setback:
(a)
Freestanding new commercial telecommunications
tower, or collocation on existing tower. The minimum front setback
to a tower in all zones shall be 150 feet or 125% of the height of
the tower, whichever is greater. The minimum side and setback in all
zones shall be 50 feet, or 125% of the height of the tower, whichever
is greater. The minimum rear setback shall be 80 feet in the PRDP
zone and 50 feet in all other zones, or 125% of the height of the
tower, whichever is greater. All setbacks shall be measured from the
tower proper and not from any proposed guy wires.
(b)
Collocated commercial telecommunications antenna
installation on existing building or structure other than tower: The
building or other structure must comply with the applicable setback
for the zoning district in which it was located. Antennas shall not
be placed on buildings or structures that do not comply with applicable
setbacks.
(c)
Accessory structures: No buildings or other
structures accessory to the operation of a commercial telecommunications
tower or commercial telecommunication antenna installation may be
constructed in any required front yard and must provide at least a
fifty-foot side and rear setback from the property line. No guy wires
shall be located within this fifty-foot side and rear setback. On
any lot line abutting a residential district, the required setback
shall be 100 feet.
(6)
Maximum height. Freestanding commercial telecommunications
tower and collocated antenna installation:
(a)
The maximum height of a freestanding tower in
I-1, PRDP and PCP zones shall be 195 feet above ground elevation.
(b)
The maximum height of a freestanding tower in
I-2, I-3, I-1-S, B-1, B-2 and PBN zones shall be 150 feet.
(c)
The maximum height of a freestanding tower in
residential zones is 110 feet above ground elevation.
(d)
In all cases, the permissible height is measured
from ground elevation to the top of any antenna projecting above the
top of the tower.
[Amended 3-27-1997 by L.L. No. 2-1997; 6-14-2001 by L.L. No. 3-2001; 7-26-2012 by L.L. No. 4-2012; 6-22-2017 by L.L. No. 2-2017]
In any district where permitted, the Zoning Board of Appeals may grant a special permit for a gasoline filling station, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
The area for use by motor vehicles, except access
drives thereto, as well as any structures, shall not encroach on any
required yard area.
B.
No fuel pump shall be located within 20 feet of any
side lot line nor within 15 feet of any street right-of-way line.
C.
No gasoline filling station or access drive leading
to a gasoline filling station may be constructed or erected within
200 feet of a school, public library, theater, church or place of
worship or other public gathering place, park, playground or firehouse
station, whether the same is on the same side of the street or the
opposite side.
D.
No gasoline filling station or access drive leading
to a gasoline filling station may be hereafter constructed or erected
within 1,000 feet of an existing gasoline filling station, as measured
in any direction.
E.
Subject to the remediation conditions of this subsection, for purposes of redevelopment of a lot for use by abandoned or distressed gasoline filling stations or other permitted uses, a lot formerly used by gasoline filling stations which has preexisting unremediated contamination or noncompliant fuel storage tanks which inhibits redevelopment of the lot absent remediation, may be reused for gasoline filling stations or other permitted uses with a site layout which does not exceed the bulk (see definition, § 194-3) conditions as existed for the prior use and building on the lot prior to discontinuance of the gasoline filling station instead of having to meet the Schedule of Bulk Regulations stated in this chapter,[1] but such prior nonconforming bulk conditions, to the extent they are nonconforming with any bulk regulations of this chapter, shall not increase except as permitted by Article XV (Nonconforming Uses and Buildings). No special use permit otherwise required by § 194-123A shall be necessary to maintain and preserve the existing nonconforming conditions, but redevelopment of the lot under this subsection shall be subject to site plan review. No certificate of occupancy shall be issued for reuse of the premises as a gas station until the owner has provided, in a form satisfactory to the Town Attorney, that it has completed all mandated site remediation by the governmental agency having jurisdiction and supervision of the same, as well as off-site remediation, including but not limited to regulatory compliant fuel storage tanks; however, the Planning Board is authorized to grant site plan approval with a condition that no certificate of occupancy shall issue absent proof of remediation. A nonconforming gasoline station under this subsection shall include those lots which were used for the sale of gasoline products prior to the creation of separation standards for gasoline stations under this chapter.
[1]
Editor's Note: The Schedule of Bulk Regulations is included as an attachment to this chapter.
[Added 3-27-1997 by L.L. No. 2-1997]
Special permit. As provided in § 194-68, the Zoning Board of Appeals may grant a special permit to establish an automobile service facility in the B-1 Zone, provided that the Board finds that the application meets all the general conditions of Article IX, and further meets all the applicable conditions set forth herein:
A.
The property shall have at least 100 feet of frontage
on New York State Route 82, north of its intersection with Beekman
Road, and derive access therefrom.
[Amended 7-24-1997 by L.L. No. 5-1997]
B.
All automobile service work shall take place within
a fully-enclosed building.
C.
Sheet metal construction shall not be allowed. Buildings
on site shall be constructed of concrete, brick, wood or other similar
materials as approved by the Board reviewing the architectural features
of the building.
D.
Where next to, or in front of, property in a residential
zone, buildings shall be placed such that work bays and parking are
oriented away from residential zones.
E.
The following minimum standards shall be met:
|
Minimum lot size
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0.75 acres
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|
Minimum frontage
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150 feet
| |
|
Minimum lot width
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100 feet
| |
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Minimum front setback
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50 feet
| |
|
Minimum side and rear setback
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25 feet
| |
|
Minimum side and rear setback from property
in a residential zone
|
50 feet
| |
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Floor area ratio
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0.20
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F.
Setback and landscape buffer. Landscaping, screening, buffer areas shall be provided as set forth in § 194-109 of the East Fishkill Town Code.
G.
Setback and landscape buffer for parking areas. All parking facilities shall meet the minimum parking setback and landscaping requirements of § 194-116 of the East Fishkill Code.
H.
All lot lines abutting residential zones shall be
screened by a solid fence or masonry wall. Such screen shall not be
less than four feet nor more than six feet in height and shall be
maintained in good condition.
I.
Parking requirement. Ten parking spaces, or one space
per 150 square feet of gross floor area in excess of 1,500 square
feet plus one space per employee of maximum shift, whichever is greater.
All parking areas shall be suitably paved.
J.
The property owner shall demonstrate that a suitable
program will be in place to periodically remove all waste materials,
parts, refuse and recyclables. No outside storage of partially disassembled
vehicles, unregistered and/or unlicensed vehicles, parts, supplies,
materials etc., shall be permitted. All on-site storage areas, including
trash areas, shall be placed on a concrete pad and enclosed in a suitable
building or behind a solid-fenced area, as approved by the Zoning
Board of Appeals, and suitable landscaped. Storage areas shall in
no event exceed a size equal to 20% of the gross floor area of the
primary building.
K.
The property owner shall demonstrate a suitable program
for prohibiting long-term storage of vehicles. Except for cars being
dropped of the night before for repair, there shall be no storage
of vehicles awaiting repair, and no storage of vehicles in excess
of 72 hours awaiting parts or payment.
L.
The automobile services provided shall be limited
to those allowed in the definition of "automobile service facility."
M.
Service operations and storage of materials must meet
all applicable rules and regulations of the New York State Department
of Environmental Conservation.
N.
The Zoning Board shall be specifically empowered to
impose additional requirements to promote compatibility with residential
uses nearby and to minimize noise and traffic circulation concerns.
A one-family-occupancy apartment may constitute a part of the land use in a B-1 District, subject to § 194-44 and the following additional standards:
A.
Such one-family-occupancy apartment shall not exceed
50% of the total usable floor area or 1,800 square feet, whichever
is the lesser of the improvement contained within the land parcel
of the owner-special use applicant.
B.
Only one such special use permit for an apartment
shall be permitted where the same owner-applicant owns contiguous
parcels in a B-1 Zone, whether such ownership resulted from single
or multiple conveyances.
C.
In order to minimize residential use in a B-1 Zone,
it shall be a condition that such an apartment constructed or maintained
pursuant to a special use permit be owner-occupied or be occupied
by an agent of the owner, and if by an agent, his function, in whole
or part, shall be that of a custodial nature.
In any district where permitted, the Zoning Board of Appeals may grant a special permit for a car wash, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
Minimum lot size for car wash facilities shall be
3/4 acre and such lot shall have street frontage of at least 100 feet.
B.
All vehicular access shall be to a major street or
a local street, provided all property on said local street is zoned
similar to subject parcel.
C.
All washing and machine-drying operations shall be
conducted within a completely enclosed building.
D.
The building exit for automobiles that have completed
the washing and machine-drying process shall be set back a minimum
of 50 feet from the nearest point of any street line.
E.
No washing, vacuuming, steam-cleaning, waxing, polishing
or machine-drying operation, or no building within which such operations
are conducted, shall be permitted within 100 feet of a residential
building located in a residential district.
F.
All lot lines abutting residentially zoned property
shall be screened by a solid masonry wall or fence of a design acceptable
to the Planning Board. Such screen shall not be less than four feet
nor more than six feet in height and shall be maintained in good condition.
G.
All entrance and exit lanes and parking areas shall
be surfaced with an asphaltic or portland cement binder pavement so
as to provide a durable and dustless surface and shall be so graded
and drained as to dispose of all drainage water therein.
H.
Any lighting used shall be so arranged as to reflect
the light away from adjoining premises in a residential district and
upon adjacent traveled ways.
I.
All operations shall be conducted completely within
the lot lines of the property.
J.
Parking.
(1)
One parking space shall be provided for each three
employees, plus one space for the manager. In addition, off-street
storage space for waiting vehicles shall be provided in the following
amounts:
[Added 3-27-1975 by L.L. No. 2-1975]
A medical or dental clinic may be established as indicated in the Schedule of Permitted Uses upon a finding by the Zoning Board of Appeals that such use is in conformity with the standards applicable to special uses as listed in § 194-49. In addition, the following specific conditions shall apply:
A.
General site and lot requirements:
(2)
Minimum lot area: one acre.
(3)
Minimum lot frontage: 150 feet.
(4)
Minimum yard dimensions: as per bulk regulations for
residential districts.
(5)
Parking spaces: four spaces for each office of given
tenancy plus one space for each 400 square feet of total floor area.
(6)
Maximum building coverage: 15%.
B.
Accessory services, including laboratories for the
use of patients visiting medical practitioners in the clinic, may
be permitted as part of the clinic facility, subject to the following
specific conditions:
(1)
All entrances to parts of the building in which these
accessory services are provided shall be from within the building
and direct access from the street is prohibited.
(2)
The hours during which these services are provided
shall be the same as those during which medical practitioners are
receiving patients.
(3)
Signs or other evidence advertising or indicating
the provision of these services visible from outside the building
are prohibited.
C.
All parking areas and driveways shall have a suitable
hard surface, and individual parking stalls shall be delineated. A
ten-foot-wide landscape buffer area shall be maintained between any
parking area and a side or rear line. This buffer area must be adequately
landscaped to serve as a screening for adjacent uses. No parking area
shall be allowed within 50 feet of the front line of the lot.
[Amended 10-25-2012 by L.L. No. 8-2012]
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ACCESSORY USES - ZONING BOARD OF APPEALS AUTHORITY
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[Added 3-28-1985 by L.L. No. 5-1985; amended 6-14-2001 by L.L. No. 3-2001]
In any district where permitted, the Zoning Board of Appeals may grant a special permit for professional offices of a physician, attorney at law, dentist, engineer, architect, teacher, artist, musician and other members of a recognized profession or trade are permitted in residential districts when conducted by the resident only, provided that the Board finds that the application meets all the general conditions of Article IX and further meets all the applicable conditions set forth in this section.
A.
Number of employees. Not more than two nonresident
employees or one nonresident employee and one associate shall be permitted
in any dwelling at any one time.
B.
External evidence. There shall be no external evidence
of such use except an announcement or professional sign not over two
square feet in area. All new construction and exterior alterations
will result in an appropriate visual composition which will be in
harmony with the character of the residential district, taking into
consideration the outside dimensions of the front facade, and the
appearance thereof, the visual relationships between the property
in question and existing residential structures, the character of
the residential district, architectural style, heights and sizes of
buildings, location and arrangement of buildings, setbacks, materials,
line, color and detail.
C.
Retail sales. This section shall not authorize any
form of retail sales as part of a professional office.
|
ACCESSORY USES - BUILDING INSPECTOR'S AUTHORITY
|
[Added 3-28-1985 by L.L. No. 5-1985; amended 6-14-2001 by L.L. No. 3-2001; 9-22-2022 by L.L. No. 7-2022; 7-27-2023 by L.L. No. 3-2023]
A.
Purpose.
(1)
The purpose of this section is to allow accessory apartments on single-family
properties in zoning districts where single-family dwellings are permitted,
except where enforceable deed covenants prohibit the same, in order
to provide the opportunity and encouragement for the development of
small housing units designed, in particular, to meet the special housing
needs of the community. Further, it is the purpose of this section
to allow the more efficient use of the Town's stock of dwellings
and accessory buildings; to provide economic support for resident
families of limited income; to protect and preserve property values;
and to preserve the character and appearance of single-family neighborhoods.
(2)
To achieve these goals, the following standards and conditions apply.
B.
Standards and conditions.
(1)
No more than one accessory apartment per lot may be permitted nor
shall the total number of dwelling units on any lot exceed two.
(2)
No accessory apartment may be permitted in a two-family or multifamily
dwelling.
(3)
The owner of the lot upon which the accessory apartment is located
shall occupy one of the dwelling units on the premises as his or her
principal residence.
(5)
Exterior appearance. If an accessory apartment is located in the
principal dwelling, the entry to such unit and its design shall be
such that, to the degree reasonably feasible, the appearance of the
building will remain as a single-family residence. In cases where
alterations are to be made to accommodate the accessory apartment,
elevation drawings may be required to be submitted with the application
for a special permit.
(6)
Off-street parking. Off-street parking shall be provided in conformance with the requirements of the off-street parking schedule in Chapter 194 of the Town Code.
(7)
There shall be no renting of rooms in either the accessory apartment
or in the principal dwelling.
(8)
Sale or subdivision. Neither an accessory apartment nor the premises
upon which such accessory apartment is located shall be sold, converted
into cooperative or condominium ownership, or subdivided unless such
action is accomplished in full compliance with the codes and ordinances
of the Town of East Fishkill, Dutchess County, and the laws of the
State of New York.
(9)
The accessory apartment shall meet the standards of the New York
State Uniform Fire Prevention and Building Code for habitable space.
(10)
The applicant shall comply with all applicable requirements
of the Dutchess County Health Department.
(11)
No expansion of the footprint of any structure by more than
100 square feet will be permitted to allow an accessory apartment.
C.
Procedure.
(1)
Review by the Building Department:
(a)
No permit from the Building Department for an attached accessory
apartment within a single-family dwelling shall be issued unless five
years have elapsed from the date of issuance of a certificate of occupancy
or certificate of compliance for the dwelling.
(b)
No permit from the Building Department for a detached accessory
apartment within an accessory structure shall be issued unless five
years have elapsed from the date of issuance of a certificate of occupancy
or certificate of compliance for the accessory structure.
(2)
The issued permit does not automatically transfer to new owners.
Subsequent owners shall apply to the Building Inspector for a permit
renewal. The Building Inspector shall issue the permit if the accessory
apartment is in compliance with this chapter and the NYS Uniform Fire
Prevention and Building Code. The Building Inspector shall provide
notice to adjacent property owners 30 days prior to renewing the permit.
[Added 8-23-2012 by L.L. No. 6-2012; amended 1-22-2015 by L.L. No. 1-2015]
A.
Legislative intent.
(1)
In accordance with the requirements of the Fair Housing Act,
and certain New York State Court rulings, all municipal zoning ordinances
are to provide for full and fair housing opportunities.
(2)
As part of the process to determine if local zoning laws fulfill
this mandate, the courts consult regional housing needs assessments
conducted by the various counties. The Dutchess County Planning Department's
"Three-County Regional Housing Needs Assessment: Dutchess, Orange
and Ulster Counties From 2006 to 2020" developed built targets for
each of the County's municipalities to represent the total number
of affordable units needed to be constructed to address both the current
and prospective affordability gaps. East Fishkill's share of affordable
rental units needed to be built by 2015 to close its estimated housing
affordability gap is 185 units. In addition, the Town Board has determined
that there is a need for housing located and designed to meet the
needs of everyday working families and citizens of the Town of East
Fishkill that will contribute to the dignity and independence of people
at a greater range of income levels and will aid in the retention
of the Town's citizen workforce population. In particular, citizen
workforce members who are essential to the social fabric of the community,
such as teachers, police officers, firefighters, nurses, nurses aides,
and others who wish to remain in East Fishkill but find it more difficult
because of reduced income levels, should be afforded housing opportunities
that can meet their needs. Toward that end, the Town Board hereby
establishes regulations for the location of workforce housing developments
within the Town of East Fishkill with the purpose of such regulations
being to ensure that workforce housing developments can be properly
located, maintained and constructed to accomplish their purpose without
detriment to the general health, safety and welfare of the residents
of the Town of East Fishkill.
B.
General.
(1)
A workforce housing development requires a special permit and
site plan approval to be issued the Planning Board in accordance with
the procedure set forth and upon compliance with the standards and
regulations herein.
(2)
The present number of units to be approved under this section
is 110 units. Once 110 units have been created, no others will be
approved hereunder unless further authorized by the Town Board. From
time to time, the Town Board will review the updated regional assessments
and the level of other development in the Town as well as vacancy
rates in other multiple-family units and accessory apartments.
C.
Intent and objectives. It is the intent of this section to be consistent
with the Three-County Regional Housing Needs Assessment: Dutchess,
Orange and Ulster Counties From 2006 to 2020, and encourage the development
of moderately priced, affordable dwelling units for everyday working
families and citizens of the Town of East Fishkill. The specific objectives
of this section are to:
(1)
Encourage affordable housing opportunities for working families
and citizens in order to give such residents the opportunity to remain
in the community close to their work, family and friends.
(2)
Make quality affordable housing available with the scope and
design of the development intended to establish a worthwhile asset
for this segment of the community and the community as a whole.
(3)
Provide appropriate sites for the development of such housing
in convenient locations.
(4)
Provide, within the boundary of the development, appropriate
social, recreational and other facilities, which will contribute to
the independence and meaningful activity of residents.
(5)
Regulate the nature and density of workforce housing developments,
their site layout and design and their relationship to adjoining uses
so as to provide ample outdoor living and open space for residents,
to preserve trees, and to minimize detrimental effects on the site
and surrounding neighborhood and environment.
(6)
Provide pedestrian connection to the hamlet center nearest the
workforce housing.
(7)
Create greater diversity in the available housing stock.
D.
Site eligibility criteria. A workforce housing development shall
meet the following site eligibility criteria:
(1)
The site may be located within any zoning district except the
"I" Zones.
(2)
The site shall be within one mile from the intersection of Route
82 and Route 376 in the Hopewell Hamlet, and the site must have at
least one lot line that crosses this radius.
(3)
The site shall be a minimum of 10 net acres as determined in accordance with § 194-91.1G(1) herein.
(4)
Access to the site must be from a state or county highway.
(5)
Municipal water and sewers must be provided or capable of being
provided the site as well as electric, cable and telephone.
(6)
The site shall be within reasonable proximity to public transportation
service, or, in the alternative, provisions shall be included in the
design of the site for future routing of buses, and provisions for
a shuttle bus or other transportation service at the site (i.e., shelters
and pickup areas) would be included within the plans. Such plans for
any and all bus shelters and pickup areas shall specifically provide
for both maintenance and ownership of said shelters or pickup areas
as directed by the Planning Board.
(7)
The site must be of sufficient acreage as of the effective date
of this section to be eligible for consideration.
E.
Permitted principal and accessory uses.
(1)
Principal uses. The workforce housing development special use
permit will allow as a principal permitted use:
(a)
Multifamily dwelling development, provided that such dwellings
are arranged as individual dwelling units for the occupancy of workforce
households, as defined below. The site plan may be a mix of various
occupancy units [multiple-unit (three-dwelling units or greater),
duplex and/or single units], provided that the units are arranged
to function as an overall site plan development and remain a single
development, although the applicant may pursue a zero lot-line subdivision
provided that appropriate controls are created to ensure long-term
maintenance and control of common areas.
(b)
Exception. Notwithstanding the other provisions of this section,
one unit may be occupied by a development superintendent or manager
and his/her family (not to exceed a total of five persons). The unit
may be detached and located in a different area of the site than the
workforce housing development units. If a development has 100 units
or more, an on-site development superintendent or manager will be
required. The superintendent or manager's unit will be included in
the calculated number of units in the development. The development
superintendent and family will not be subject to the occupancy restrictions
listed elsewhere in this section.
(2)
Accessory uses. The following accessory uses are permitted:
(a)
Accessory uses, including buildings and facilities, which are
reasonably necessary to meet the proper maintenance, administration,
security, off-street parking, storage, fencing and utility system
needs of the development.
(b)
The following accessory uses are permitted and encouraged (and
in developments with 50 or more units, may be required by the Planning
Board as a condition of site plan approval), provided that such facilities
are approved by the Planning Board and managed as part of the building
or complex of buildings and restricted in their use to residents of
the building or building complex and further provided that there are
no external advertising signs for such facilities:
[1]
A coin-operated vending machine room, provided
that the maximum floor area devoted to such use is no more than 150
square feet.
[2]
Security office and/or on-site security patrols.
[3]
Game areas, sitting areas, walking trails or other
outdoor recreation or leisure facilities.
[4]
Laundry facilities will be provided on site.
[5]
On site Superintendent's office and residence.
F.
Occupancy and occupancy definitions for residential occupancy. Occupancy
of dwelling units within a workforce housing development shall be
for residential purposes only. Occupancy shall be limited to households
as defined and described below:
(1)
Workforce household. For purposes of this section, a workforce
household shall consist of one or more persons, whose combined total
income is at or below 120% of the median income of residents of Dutchess
County, New York.
(2)
Guests. The property shall be managed so as to ensure that the
unit occupancy does not exceed the maximum number of occupants allowed
by the New York State Building Code and the approved number of bedrooms
for each unit. The leases and/or bylaws shall contain provisions to
limit the duration of guest visits. These provisions shall be approved
by the Planning Board as part of the approval process.
(3)
Preferences. As permitted by law, first preference for a unit
will be given to existing residents of the Town of East Fishkill.
The preference amongst residents will be: Volunteer Fire and Ambulance
workers; Town and school district employees; general Town residents.
G.
Lot and bulk requirements. The following lot and bulk requirements
shall apply to workforce housing developments for a special use permit:
(1)
Minimum lot area. The minimum permitted lot area shall be 10
acres (net). To calculate net lot area, the area of any lands subject
to easements, rights-of-way, encumbrances, slopes in excess of 20%
and NYSDEC or federal wetlands shall be deducted from the parcels
gross acreage. An exception to this restriction is as follows:
(a)
For workforce housing developments, up to 5% of the property
may be encumbered by public or utility easements or rights-of-way
without deduction from lot area or subtraction from unit density calculation.
(2)
Maximum residential density. The maximum permitted density shall
be 10 dwelling units per net acre.
(3)
Maximum development coverage (impervious surface area). Maximum
development coverage shall not exceed 65% of the gross lot area. Impervious
surface area includes all buildings, structures, and parking area,
walkways, and similar improvements.
(4)
Minimum front yard. The front yard setback shall be 50 feet
measured from the property line.
(5)
Minimum side and rear yard. The minimum side and rear yard setbacks
shall be 50 feet measured from the property line.
(6)
Lot width. The minimum lot width shall be 50 feet at the street
line.
(7)
Maximum building height. The maximum building height shall be
35 feet and shall not exceed 2 1/2 stories.
(8)
Setbacks as referenced herein do not apply to internal lot lines,
if the proposed development is to be a zero lot-line development,
internal driveways, parking lots, or similar site improvements; however,
these improvements are subject to the review of the Planning Board,
which may require specific setbacks of improvements or addition of
screening as may be warranted by the conditions of the development
and surrounding uses.
H.
Site regulations and miscellaneous requirements.
(1)
The development design shall be functional and shall provide
for the safety, health and general welfare of occupants of this age
group.
(2)
Access and internal roadways. All access and internal roadways
shall be privately owned and maintained unless otherwise approved
by the Town Board. All entrances and exits for ingress, egress, and
interior circulation will be of a width and location suitable for
the site and workforce housing, and as approved by the Town Engineer.
(3)
Parking and circulation. Parking spaces shall be provided at
a ratio of 2.0 spaces per unit (minimum). The parking spaces will
be conveniently located, evenly distributed, arranged, striped and
identified by signage. The Planning Board may require additional parking
for other accessory facilities. No commercial vehicles will be permitted.
(Such restriction shall not apply to management company or condo association
vehicles utilized for operation of the site nor for routine commercial
deliveries.) For purposes of this section, garage and driveway parking
spaces will count in the parking calculation.
(4)
Outdoor recreation. Usable outdoor recreation space shall be
provided in a type and quantity as required by the Planning Board.
Such space shall consist of both active and passive recreation and
amenities, such as exercise and game areas, outdoor pool, patio areas,
landscaped and shaded sitting areas, walking or jogging trails. The
units will be assessed 1/2 of the Town's recreation fee for in-lieu-of-land
less a credit to be set by the Planning Board and for onsite amenities.
(5)
Sidewalks. Each development will provide suitable sidewalks
on and off the site, which may include handrails when appropriate
and required by code. The Town Board may waive this requirement when,
in its discretion, such sidewalks are not appropriate or required.
(6)
Landscaping. Each development will provide suitable landscaping
in accordance with the standards set by the Planning Board and as
may otherwise be required in the Zoning Law for site plans.
(7)
Basement units. Units provided in workforce housing developments
shall not be of a type or configuration which could be considered
basement units, wherein any living quarters are substantially below
grade (greater than 33% of lowest level); however, this restriction
is not intended to prohibit basements, garages or storage areas as
a part of the units otherwise provided with living quarters which
are above grade.
(8)
Identification signs will be permitted in a location or locations as approved by the Planning Board. Sign dimensions and other requirements shall comply with the applicable sections of Article XIII of the Zoning Law.
(9)
Building identification signs and number/letter identification
shall be provided in accordance with the applicable sections of the
Zoning Law and other applicable codes, and as recommended by the Office
of the Fire Inspector, to promote efficient and timely identification
for residents, visitors and emergency personnel.
(10)
Artificial lighting. All areas within the development shall
be provided with suitable artificial lighting, sufficient for the
convenience and safety of the residents. Lighting shall be designed
so as not to extend onto adjoining properties or cause glare onto
the same. In general, lighting levels at the property line shall be
0.5 footcandle or less, other than at development entrances, where
increased levels will be considered or required.
(11)
The location of buildings, the arrangement of dwelling units
within the buildings and suitable materials and methods of construction
shall be utilized to reduce the transmission of sound.
(12)
Adequate facilities shall be provided for the removal of snow,
trash and garbage and for general maintenance of the development.
Trash and garbage facilities shall be enclosed in a permanently enclosed
structure. The structure shall be aesthetically appealing and landscaped.
Spacing and distribution of the facilities shall be convenient.
(13)
Miscellaneous.
(a)
Utility service to the site shall be buried.
(b)
Outdoor public address systems or other outdoor amplified noise
shall be prohibited.
(c)
The architectural style of the proposed development, exterior
materials, finish and color shall be consistent with existing community
and neighborhood character, and approved by the Architectural Review
Board.
(d)
Site amenities and community spaces shall be usable before completion
of the project, with the maximum percentage of completion and occupancy
required to be specified by the special permit, and all amenities
shall be complete upon completion of 50% of the approved units.
I.
General building and unit requirements.
(1)
Buildings shall require the following facilities and services:
(a)
Laundry. Laundry facilities (washers and dryers) adequate to
serve the occupants of the development shall be provided and maintained.
Facilities shall be provided either as common facilities or as individual
facilities. If the common facilities are selected, all laundry facilities
shall be provided and maintained by the applicant/developer.
(b)
Indoor community space. Indoor community space shall be provided.
Such space shall consist of a common meeting room or other space allocation
proposed by the applicant and approved by the Planning Board. The
minimum space allotted for indoor community space shall be 15 square
feet per one bedroom unit and 25 square feet for two and three bedroom
units. The applicant, as part of the site plan application, shall
provide a narrative description and general arrangement plan for such
indoor community space. The total size of this space shall be sufficient
to allow the maximum number of permitted residents to occupy the same.
(c)
If there are 75 dwelling units or more, the Planning Board may require any or all of the permitted accessory uses set forth above under § 194-91.1E(2)(b).
(2)
Dwelling unit requirements.
(a)
Unit size. The minimum permitted floor area shall be 450 square
feet to 500 square feet for efficiency units; 600 square feet to 725
square feet for one-bedroom units; 750 square feet to 950 square feet
for two-bedroom units; and 900 to 1,150 square feet for three-bedroom
units. The maximum unit area may be increased by the bulk storage
area, 60 square feet for multistory units and 50 square feet to accommodate
handicap-visit ability in townhomes.
(b)
Unit occupancy density. The maximum number of residents who
may reside in a dwelling unit shall be 1.5 persons per bedroom, or
such lower number as permitted by the New York State Uniform Building
Code.
(c)
Unit amenities.
[1]
Kitchen and bathroom. All dwelling units shall
contain full bathroom and kitchen facilities, including but not limited
to a sink, refrigerator, stove, range or combined unit in the kitchen
and a sink, toilet, bathtub and shower in the bathroom. The sizing
of the kitchen facilities shall be consistent with the type of unit
and occupancy.
[2]
Storage. A minimum of 20 square feet of storage
area shall be provided for each unit, within the same building as
the dwelling unit. Such storage area shall be in addition to normal
closet space.
[3]
Noise. Measures will be taken to reduce the transmission
of noise by use of suitable materials (i.e., carpeting and acoustic
baffling), methods of construction and arrangement of units within
buildings.
(3)
All general building and dwelling unit requirements provided
as part of the site plan approval and special permit shall be maintained
throughout the life of the development, unless otherwise subsequently
approved by the Planning Board.
J.
Procedure for workforce housing development special use permit and
site plan approval.
(1)
An initial application package for a workforce housing development
shall include an application for a special use permit and an application
for site plan approval. The initial application package shall be delivered
to the Planning Board. The initial application package shall include,
at minimum:
(a)
A survey of the parcel prepared and certified by a licensed
land surveyor, which shall also depict existing zoning, wetlands,
topography utilizing two-foot contours, and other such information;
(b)
A site plan showing the buildings, garages, improvements, existing
utilities, driveways, walkways and other appropriate information to
outline the proposal;
(c)
The site plan shall clearly define the number of proposed units
and bedrooms per unit;
(d)
Other detailed plan, specifications data, and a narrative which
defines the details and accessory uses proposed for the development,
and other such information which the Planning Board may deem necessary;
and
(e)
A completed full environmental assessment form which may be
accompanied by supplementary studies and other information pertinent
to an initial determination of environmental significance.
(2)
The Planning Board will review the initial application package
to determine whether the application is sufficiently complete to commence
preliminary review. Within 30 days of determining that the application
is sufficiently complete to commence preliminary review, the Planning
Board shall take the following steps:
(a)
The Planning Board may circulate a notice that it intends to
serve as lead agency for a coordinated environmental review pursuant
to the State Environmental Quality Review Act (SEQRA); and
(b)
If the application is subject to the referral requirements New
York General Municipal Law § 239-l, 239-m, 239-n or 239-nn,
then the Planning Board will coordinate a joint referral for both
the special use permit and site plan approval.
(3)
In granting a special permit, the Planning Board may impose
such terms and conditions as the Planning Board shall deem necessary
to accomplish the reasonable application of the applicable standards
as provided in this chapter, including but not limited to off-site
improvements and requiring a performance bond to guarantee completion
of such required improvements.
K.
Approval and enforcement.
(1)
A certificate of occupancy will be required for each dwelling
unit, and said certificate shall be understood to only permit occupancy
in conformance with this chapter, the special permit approval of the
Town Board and the site plan approval of the Planning Board, and any
conditions thereof.
(2)
A certification of compliance will be filed annually with the
Town for each dwelling unit. The owner, homeowners' association or
an authorized agent will file (in the office of the Town Building
Inspector) a certification of compliance with the Code Enforcement
Officer stating that the development, each dwelling unit, and the
occupancy of each unit is in compliance with this chapter and the
permit and approvals granted by the Town. In lieu of a certification
of compliance, the Town will accept a copy of any annual certification
filed with New York State.
(3)
Each development will have at least two responsible parties,
to wit, the owner, owner's agent or site manager, who will each provide
the Code Enforcement Officer with his or her telephone number in the
event of an emergency.
(4)
Any violation of the conditions of this section, site plan or special permit approval will constitute a zoning violation and will subject the development owner (landlord, in the case of rentals), homeowners' association or board of managers (in the case of condos or townhouse developments) to the remedies and fines set forth in Article XXII of the Zoning Law or elsewhere in the Town of East Fishkill Code.
(5)
Reference to this section and any conditions of approval shall
be included in a deed as a covenant running with the land in perpetuity,
and shall also be included in any lease or bylaws of any association,
condominium or cooperative housing corporation, or any filing with
the New York State Attorney General, if required, unless directed
otherwise by the Planning Board.
L.
Fees. The applicant shall pay all review fees and escrows required
by the Town's laws.
