[HISTORY: Adopted by the Town Board of the
Town of East Fishkill 9-27-2007 by L.L. No. 6-2007. Amendments noted where
applicable.]
A.
The way in which presently undeveloped acreage in the Town is developed is of critical importance to the public interest. The standards for lot count contained in Chapter 194, Zoning, which exclude environmentally sensitive lands from the acreage upon which lot count is based, encourage the siting of buildings and other facilities so that the disturbance or alteration of steep slope areas and other environmentally sensitive lands can be avoided. Nonetheless, the Town recognizes that disturbance or alteration of steep slope areas may be necessary. The purpose of this chapter is to prevent improper disturbance or alteration of steep slopes. The intent is not to restrict general development in the Town, but to guide land use proposals into areas where they best preserve and enhance these natural resources and preserve and protect the visual and environmental character of the land.
A.
Steep slopes have been or are in jeopardy of being
damaged or destroyed by unregulated filling, excavating, building,
clearing and other such acts which are inconsistent with the natural
condition or acceptable uses of steep slopes. Steep slopes in the
Town of East Fishkill are environmentally sensitive landforms and
valuable natural resources that are of benefit to the entire Town
and the surrounding region. The environmental sensitivity of steep
slopes often results from such features as rock outcrop, shallow soils
over bedrock, bedrock fractures, and groundwater seeps.
B.
Protection of steep slopes is a matter of concern
to the entire Town. The establishment of regulatory and conservational
practices in this critical area is needed to protect the public health,
safety and general welfare. Experience has demonstrated that effective
protection of steep slopes requires preservation wherever possible.
Experience has further demonstrated that where steep slopes have to
be disturbed, careful review and regulation, including stringent mitigating
measures, is required.
C.
The Town's experience with past development has shown
that the improperly managed disturbance of steep slopes can aggravate
erosion and sedimentation beyond rates experienced in natural geomorphologic
processes. Erosion and sedimentation often include the loss of topsoil,
a valuable natural resource, and can result in the disturbance of
habitats, degradation of the quality of surface water, the silting
of wetlands, alteration of drainage patterns, and obstruction of drainage
structures and intensification of flooding.
D.
Steep slopes, including vegetation and rock cliffs,
are an important environmental feature that contribute to the character
and desirability of the Town of East Fishkill and help contribute
to and maintain the value of residential property in the Town. Overdevelopment
or improperly managed disturbance are detrimental to the character
and desirability of the Town and can result in public and private
expenditures for corrective measures; negative effects on property
values; and unnecessary and unwarranted increases in the costs of
providing and maintaining public services and facilities, such as
streets, water, sewers, emergency services, sanitation services, parks,
and recreation.
E.
Regulation of development on steep slopes is consistent
with the legitimate interests of landowners to make reasonable use
of their land. Regulation can prohibit the degradation of steep slopes
and allow reasonable use of private property by encouraging flexible
design to avoid disturbance of steep slopes. Regulation can also permit
environmentally sound disturbance of steep slopes conducted in accordance
with acceptable management and engineering practices to permit reasonable
use of private property.
F.
Regulation of development on steep slopes will not preclude the Town from continuing to meet its social, economic and other essential responsibilities, particularly its responsibility to provide affordable housing. In order to ensure the availability of affordable housing, the Town has adopted provisions in Chapter 194, Zoning, and Chapter 163, Subdivision of Land, which enable the development of a variety of housing types to meet the needs of Town residents for affordable housing. Additionally, the Town Board will be considering further Zoning amendments as recommended by its Work Force Housing Task Force.
G.
These regulations are enacted with the intent of providing
a reasonable balance between the rights of the individual property
owner to the fair use of his or her property. Therefore, this chapter
recognizes the rights of owners of property containing steep slopes
to use their property for reasonable purposes consistent with other
regulations and controls, provided that such use, in the judgment
of the appropriate agencies or officials of the Town of East Fishkill,
does not result in a significant loss or degradation of steep slopes
or loss of the visual and open space benefits of steep slopes.
H.
It is declared to be the intent of the Town of East Fishkill to preserve steep slopes within the Town to the greatest extent practicable and to regulate their use within the Town to protect the public interest by ensuring the greatest benefit found to enjoy and benefit from preservation of wetlands, water bodies and watercourses to be provided by the preservation of steep slopes and by ensuring the least detrimental effects through the practice of properly managed disturbance of steep slopes as set forth in § 154-4.
As used in this chapter, the following terms
shall have the meanings indicated:
Land maintenance involving tree trimming and pruning, the
removal of dead and diseased vegetation, lawn and garden care and
the planting of decorative trees, shrubs and plants.
Excavation or fill or any combination which changes the existing
ground surface by more than two feet, or any removal of trees and/or
vegetation and shall include the conditions resulting from any excavation
or fill.
Any act by which earth, sand, gravel, rock or any other similar
material is mechanically cut into, dug, quarried, uncovered, removed,
displaced or spread.
Any act by which earth, sand, gravel, rock or any other similar
material is mechanically deposited, placed, replaced, dumped, transported
or moved to a new location.
Ground areas with greater than a 3:1 slope or 33.3% grade
and that cover a minimum area of 5,000 square feet with one orthogonal
dimension (i.e., either length or width) a minimum of 25 feet. Measurements
shall be made along a horizontal plane.
A.
Exempt activities shall be allowed without the need
for obtaining a permit, provided that any such activities conform
to the requirements of this chapter and to all other applicable laws
and regulations of the Town of East Fishkill. Exempt activities are:
B.
Regulated activities. These prohibitions apply to
all sites, lots, or parcels of land, or any portion of any such site,
lot, or parcel located in the Town, without exception.
(1)
It shall be unlawful to create any disturbance or
to cut any tree with a diameter greater than four inches measured
4 1/2 feet above ground level, on any steep slope, as defined
by this chapter, other than an exempt activity defined above, without
a specific written permit as required by this chapter.
(2)
It shall be unlawful to create any steep slope, other
than as part of an exempt activity, without a specific written permit
as required by this chapter.
The approval authority with respect to applications
hereunder shall be as follows:
A.
The Zoning Board of Appeals shall be the approval
authority with respect to any application that requires the issuance
of any other permit or approval by it pursuant to the local laws and
ordinances of the Town of East Fishkill.
B.
The Planning Board shall be the approval authority
with respect to any application which requires the issuance of any
other permit or approval by it pursuant to the local laws and ordinances
of the Town of East Fishkill, including any application which incidentally
requires the issuance of any permit or approval by the Zoning Board
of Appeals.
C.
The Town Board shall be the approval authority with
respect to any application which requires the issuance of any other
permit or approval by it pursuant to the local laws and ordinances
of the Town of East Fishkill, including any application which incidentally
requires the issuance of any permit or approval by the Zoning Board
of Appeals or the Planning Board.
D.
The Building Inspector or Zoning Administrator shall
be the approval authority with respect to all other regulated activities.
A.
General requirements. In denying, granting or granting with modifications any application for a permit as required by this section, the approval authority shall consider, and make specific findings, that address the consistency of the proposed activity with the findings set forth in § 154-2 of this chapter and each of the following standards:
(1)
Disturbance or alteration of trees and forests and topographical disturbances or alterations on steep slopes shall be in conformance with all provisions of this steep slopes ordinance as well as with all other applicable ordinances and regulations of the Town of East Fishkill, including, by way of example only, the requirements of Chapter 108, regarding flood damage control.
(2)
The proposed activity will not result in creep, sudden
slope failure, or additional erosion.
(3)
The proposed activity will not adversely affect existing
or proposed wells or sewage disposal systems.
(4)
The proposed activity will not adversely affect any
endangered or threatened species of flora or fauna.
(5)
The proposed activity is in accordance with the principles
and recommendations of the most recent Master Plan of the Town and
the Greenway Compact Guidelines.
(6)
The natural elevations and vegetative cover of ridgelines
shall be disturbed only if the crest of a ridge and the tree line
at the ridge remain uninterrupted. This may be accomplished either
by positioning buildings and areas of disturbance below a ridgeline
or by positioning buildings and areas of disturbance at a ridgeline
so that the elevation of the roofline of the building is no greater
than the elevation of the natural tree line. However, under no circumstances
shall more than 100 feet along the ridgeline, to a width of 100 feet
generally centered on the ridgeline, be disturbed.
(7)
The proposed activity constitutes the minimum disturbance
necessary to allow the property owner a reasonable use of the property.
B.
Disturbance or alteration of areas with steep slopes
shall additionally be in conformance with the following planning,
design and layout provisions:
(1)
The planning, design and development of buildings
shall provide the maximum in structural safety, slope stability and
human enjoyment while adapting the affected site to, and taking advantage
of, the best use of the natural terrain and aesthetic character.
(2)
The terracing of building sites, including the mounding
of septic tile fields, shall be kept to an absolute minimum.
(3)
Roads and driveways shall follow the natural topography
to the greatest extent possible in order to minimize the potential
for erosion and shall be consistent with all other applicable ordinances
and regulations of the Town of East Fishkill and current engineering
practices.
(4)
Replanting shall consist of indigenous vegetation
and shall replicate the original vegetation on the site as much as
possible.
(5)
Any regrading shall blend in with the natural contours
and undulations of the land.
(6)
Cuts and fills shall be rounded off to eliminate sharp
angles at the top, bottom and sides of regraded slopes. Visible construction
cuts and permanent scarring should be minimized.
(7)
All proposed disturbance of steep slopes shall be
undertaken with consideration of the soils limitations characteristics
contained in the Dutchess County Soils Survey, as prepared by the
Dutchess County Soil and Water Conservation District, in terms of
recognition of limitation of soils on steep slopes for development
and application of all mitigating measures and as deemed necessary
by the approval authority.
(8)
The surface of earthen cut slopes, earthen fill slopes
or rock fill slopes shall not exceed a slope of two horizontal units
to one vertical unit, except where retaining walls, structural stabilization
or other methods acceptable to the Town Engineer are used. The surface
of rock cut slopes shall be to a stable grade, which will vary with
the type of rock encountered but may be steeper than 2H:1V as limited
for earthen cut slopes.
(9)
Structures shall be set back from the tops and bottoms
of cut and fill slopes a distance that will ensure the safety of the
structure in the event of the collapse of the cut or fill slope. Generally,
such distance shall be considered to be six feet plus 1/2 the height
of the cut or fill.
(a)
A structure built at the toe of an earthen or
broken rock constructed slope where the slope is greater than the
allowable 2H:1V may be permitted if it is properly designed to retain
the slope and withstand the forces exerted on it by the retained slope.
(b)
A structure built at the top of an earthen or
broken rock constructed slope where the slope is greater than the
allowable 2H:1V may be permitted if the slope is held in place by
a retaining wall designed by a New York State licensed professional
engineer.
A.
The presumption in all cases shall be that no disturbance or alteration of any steep slope shall be approved by the approval authority. The applicant shall in all cases have the burden of proof of demonstrating, by clear and convincing evidence, that the proposed activity is fully consistent with each of the findings set forth in § 154-2 and that each of the standards for approval set forth in § 154-6 above has been fully and completely met.
B.
With respect to applications involving proposed disturbance
or alteration of any steep slope with a grade of 33% or greater, the
applicant shall have the additional burden of demonstrating, again
by clear and convincing evidence, that the applicant's circumstances
are compelling and exceptional, including, at a minimum, demonstrating
by clear and convincing evidence that no reasonable use of the site,
lot, or parcel is possible without disturbance to a steep slope area
having a grade of 33% or greater.
A.
Application for permit. An application for a permit
to disturb or alter a steep slope shall be filed with the approval
authority and shall contain the following information and such other
information as required by the approval authority except when waived
by it as not pertinent or necessary for the proposed disturbance:
(1)
The name and post office address of the owner and
applicant.
(2)
The street address and Tax Map designation of property
covered by the application.
(3)
A statement of authority from the owner for any agent
making application.
(4)
A listing of property owners adjacent to, across streets
or rights-of-way from and downstream within 500 feet of the property
and any additional property owners deemed appropriate by the approval
authority.
(5)
A statement of the proposed work and purpose thereof.
(6)
Copies, in such reasonable number as determined by
the approval authority, of plans for the proposed regulated activities
drawn to a scale of not less than one inch equals 50 feet (unless
otherwise specified by the approval authority). Such plans shall be
sealed and show the following:
(a)
The location of the proposed construction or
area of disturbance and its relationship to property lines, easements,
buildings, roads, walls, sewage disposal systems, wells and wetlands
within 100 feet of the proposed construction or area of disturbance
for adjacent properties at the same elevation and within 500 feet
for properties significantly lower.
(b)
The estimated material quantities of excavation/fill.
(c)
The location and size of areas of soils by soils
types in the area of proposed disturbance and to a distance of 100
feet.
(d)
The existing and proposed contours [1929 National
Geodetic Vertical Datum (NGVD) is preferred, and is mandatory if a
floodplain is involved; 1988 NAVD is otherwise acceptable] at two-foot
intervals in the area of proposed disturbance and to a distance of
100 feet beyond.
(e)
Cross-sections of steep slope areas.
(f)
Retaining walls or like constructions, with
details of construction.
(g)
The erosion and sedimentation control plan.
(7)
Other details, including specific reports by qualified
professionals on soils, geology and hydrology, and borings and/or
test pits, as may be determined to be necessary by the approval authority.
(8)
A list of all applicable county, state or federal
permits which are required for such work or improvements.
(9)
An application fee in the amount set forth in a fee
schedule established by the Town Board.
B.
Referral. The approval authority shall refer any application
submitted to it pursuant to this chapter to the Conservation Advisory
Council (CAC) for review and report. The Conservation Advisory Council
shall report back to the approval authority within 30 days of the
date of referral or within such greater period as may be specified
by the approval authority (at the time of referral). Failure to reply
within the specified time period shall be interpreted by the approval
authority as indicating that the CAC has no objection to the application.
C.
Notice. Upon receipt of a completed application under
this chapter, the approval authority shall cause notice of receipt
of the same to be sent to adjoining property owners and property owners
across the street or right-of-way adjoining the involved property.
Such property owners shall have 20 days from said day of notice to
submit written comment to the approval authority with regard to said
application. The approval authority may waive this notice procedure
if it has received responses from the adjoining property owners prior
to action by it. In cases where the approval authority is the Building
Inspector or Zoning Administrator, the approval authority shall additionally
cause such notice to be posted at one or more locations along the
street or streets abutting the property.
D.
Public hearing. A public hearing shall be held by
the approval authority on the application made hereunder at such times,
under such circumstances and upon such notice as may be required for
the granting of the other permit or approval required of such approval
authority pursuant to the local laws and ordinances of the Town of
East Fishkill. No public hearing is required for permits issued solely
by the Building Inspector or Zoning Administrator.
E.
Action by the approval authority. In approving any
application, the approval authority may impose such conditions or
limitations as it determines necessary to ensure compliance with the
intent, purposes and standards of this chapter.
(1)
On applications for which no public hearing is required,
a determination shall be made to approve, approve with modifications
or disapprove the application within 60 days of receipt of a completed
application therefore.
(2)
On applications for which a public hearing is required,
a determination shall be made to approve, approve with modifications
or disapprove the issuance of such permit simultaneously with the
determination by the approval authority of the other permit or approval
for which application was made.
(3)
The approval authority may require that the activities
undertaken pursuant to a permit be supervised by an appropriate licensed
professional as specified by the approval authority in its permit.
F.
Appeal. Any party aggrieved by a decision of the Building
Inspector or Zoning Administrator to approve with conditions or disapprove
an application may appeal the decision to the Zoning Board of Appeals.
A.
In granting a permit, the approval authority shall
require a security in an amount and with surety and conditions satisfactory
to it securing to the Town of East Fishkill compliance with the conditions
and limitations set forth in the permit.
A.
Disturbance or alteration of areas with steep slopes
shall additionally be in conformance with the following construction
requirements:
(1)
Disturbance of rock outcrops shall be by means of
explosives only if labor and machines are not effective and only if
rock blasting is conducted in accordance with all applicable laws
and regulations of the Town of East Fishkill, County of Dutchess,
and the State of New York.
(2)
Disturbance of steep slopes shall be undertaken in
workable units in which the disturbance can be completed and stabilized
in one construction season so that areas are not left bare and exposed
during the winter and spring thaw periods (December 15 through April
15).
(3)
Disturbance of existing vegetative ground cover shall
not take place more than 15 days prior to grading and construction.
(4)
Temporary soil stabilization, including, if appropriate,
temporary stabilization measures such as netting or mulching to secure
soil during the grow-in period, must be applied to an area of disturbance
within two days of establishing the final grade, and permanent stabilization
must be applied within 15 days of establishing the final grade.
(5)
Soil stabilization must be applied within two days
of disturbance if the final grade is not expected to be established
within 60 days.
(6)
Measures for the control of erosion and sedimentation
shall be undertaken consistent with the New York State Guidelines
for Urban Erosion and Sediment Control, as amended, or their equivalents,
satisfactory to the approval authority.
(7)
Topsoil shall be stripped from all areas of disturbance,
stockpiled and stabilized in a manner to minimize erosion and sedimentation
and replaced elsewhere on the site at the time of final grading. Stockpiling
shall not be permitted on slopes greater than 10% grade.
(8)
No organic material or rock with a size that will
not allow appropriate compaction, or cover by topsoil, shall be used
as fill material. Fill material shall be no less permeable than the
soil upon which it is placed and shall drain readily.
(9)
Compaction of fill materials shall be sufficient to
ensure stable support of proposed structures and other intended uses.
B.
Inspection and monitoring.
(1)
The Building Inspector or Zoning Administrator of the Town of East Fishkill shall inspect on behalf of the approval authority, activities undertaken pursuant to a permit so as to ensure satisfactory completion. If upon inspection it is found that any of the activities have not been undertaken in accordance with the permit, the applicant shall be responsible for completing those activities according to the permit (in addition to being subject to the sanctions set forth in § 154-12. Failure of the Building Inspector or Zoning Administrator to carry out such inspections shall not in any way relieve the applicant or its surety of its responsibilities.
(2)
The approval authority may require that the applicant
submit for review and approval by the Building Inspector or Zoning
Administrator of the Town of East Fishkill a detailed monitoring program,
including but not necessarily limited to, written status reports at
specified intervals documenting activities undertaken pursuant to
a permit. Where such a monitoring program has been required, the applicant
shall notify the approval authority and the Building Inspector or
Zoning Administrator upon reaching stages of the activity as may be
required in the permit. No activity requiring inspection shall be
approved absent such notification.
(3)
The approval authority may require as a condition
of approval the applicant to establish an escrow account so that the
Town may appoint an environmental monitor to monitor the work under
any permit granted herein.
A.
This chapter shall not apply to any complete application
heretofore made to the Zoning Board, the Planning Board, the Town
Board, the Building Inspector or the Zoning Administrator for any
permit or approval for which a permit would also be required hereunder.
The term "complete application" shall mean either the issuance of
a negative declaration under SEQRA (or the adoption of a determination
of significance and the submission of a complete DEIS within nine
months from the effective date hereof).
B.
Where this chapter is less or more protective of the
environment than the regulatory program of the United States Army
Corps of Engineers, the Environmental Conservation Law of the State
of New York, the New York City Department of Environmental Protection,
or any law or ordinance of the County of Dutchess or the Town of East
Fishkill, the law or ordinance that is more protective of the environment
shall prevail.
C.
Grandfathered projects. Any revisions to this chapter
shall not apply to any land use, improvement or development physically
completed prior to the effective date of this chapter. This chapter
shall not apply to any project for which approval has been granted
and work is commenced within one year of final approval.
D.
Current projects. Any regulated activity which has
received an approval or is otherwise allowed to legally continue prior
to the effective date of this chapter, but which is not in conformity
with the provisions of this chapter, may be continued subject to the
following:
(1)
Such activity shall continue to be governed by the
laws of the Town of East Fishkill in effect at the time of approval.
(2)
Such activity shall not be expanded, changed or enlarged
in any way that increases its size or impact without compliance with
this chapter.
(3)
If such activity is discontinued for 12 consecutive
months, any resumption of the activity shall confirm to this chapter.
E.
This chapter will not apply to any application which
has received preliminary approval upon the effective date of this
chapter nor will this chapter apply to any application for which a
determination of significance has been adopted as of the effective
date of this chapter, and, in addition, for which a DEIS has heretofore
been submitted to the lead agency conducting environmental review
or for which a DEIS will be submitted within nine months from the
effective date of this chapter.
A.
Activities specified by the permit shall be undertaken
pursuant to any conditions of the permit and shall be completed according
to any schedule set forth in the permit. The approval authority may
revoke or suspend a permit if it finds that the applicant has not
complied with any of the conditions or limitations set forth in the
permit.
B.
The Building Inspector or Zoning Administrator shall
have the power to direct a violator to cease violation of this chapter
and, with the consultation of the approval authority, satisfactorily
restore the affected area within a specified period of time. The exercise
of such power may be with or without the imposition of a fine.
C.
Any person who violates, disobeys or disregards any
provision of this chapter shall be liable to the people of the Town
of East Fishkill for a civil penalty not to exceed $3,000 for every
such violation. Each week's continuation of a condition violating
this chapter shall be deemed a separate violation. Each offense shall
be a separate and distinct offense, and, in the case of a continuing
offense, each week's continuance thereof shall be deemed a separate
and distinct offense.
D.
In addition to the above civil fine, any person who
is found guilty of violating any provision of this chapter shall be,
pursuant to the Penal Law, punishable by a fine of not less than $500
nor more than $1,000. For a second and each subsequent conviction,
the violator shall be guilty of a misdemeanor, punishable by a fine
of not less than $1,000 nor more than $2,000 or a term of imprisonment
up to 15 days, or both. Each offense shall be a separate and distinct
offense, and, in the case of a continuing offense, each week's continuance
thereof shall be deemed a separate and distinct offense.
E.
In addition to the above civil and criminal penalties,
the Town Board and Building Inspector or Zoning Administrator, with
the advice and consent of the Town Attorney, shall have the right
to seek equitable relief to restrain and/or remedy any violation of
any provisions of this chapter.
This chapter will take effect on November 1,
2007.
