Town of Neversink, NY Article VII Special Uses and Site Plan Review

§ 50-20 Statutory authority; site plan review required.

A. The Town of Neversink Planning Board is authorized to approve, disapprove or approve with modifications the establishment (by special permit) of certain uses which shall, throughout this chapter, be identified as special uses along with their site plans. In accordance with the requirements of Municipal Home Rule Law § 10(1)(ii)(d)(3), this article shall supercede, in part, the provisions of Town Law §§ 274-a and 274-b so as to create procedures and requirements for the approval of special uses along with their site plans.

[Amended 3-12-2008 by L.L. No. 4-2008]

B. Site plan review by the Planning Board is required for all special uses. The Planning Board, in approving the establishment of special uses and their site plans, shall first determine compliance with the standards and criteria set forth in this § 50-20 and elsewhere within this chapter. No building permit will be issued for any structure covered by this article until an approved site plan or approved amendment of any such plan has been secured by the applicant and presented to the Code Enforcement Officer. No certificates of occupancy will be issued for any structure or use of land which are identified as a special use unless the structure is completed or the land developed or used in accordance with an approved site plan or approved amendment of any such plan.

C. If the special use permit is considered by the Planning Board without review of a site plan, a public hearing shall first be held in accordance with the requirements of § 50-22C. In no event, however, shall a special use be allowed to commence without a site plan first being approved, unless, in the opinion of the Planning Board, the special use requires no change to an existing structure, grounds, lighting or landscaping.

D. Referral to County Planning Agency. Prior to taking final action on a special use permit or a site plan, the Planning Board shall make the required referral, if any, to the County Planning Agency as mandated by § 239-m of the General Municipal Law.

[Amended 3-25-1992 by L.L. No. 3-1992]

E. The Town of Neversink Planning Board shall, pursuant to § 274-a, Subdivision 5, of the Town Law, have the right to waive, when reasonable, any of the requirements of § 50-22 of this Article VII. This waiver authority may be exercised in the event that any such requirements are found not to be essential for the public health, safety or general welfare or are found to be inappropriate to a particular site plan. Any such waiver shall be subject to the following conditions:

[Added 11-3-2010 by L.L. No. 3-2010]

(1) No waiver shall result in allowing a use not permitted within the applicable zoning district.

(2) Waivers shall be limited to those situations where an addition or change in use not exceeding either 2,500 square feet in size or 25% of the floor area of existing structures is proposed on a parcel previously granted site plan approval by the Planning Board.

(3) Waivers shall be limited to those situations where the full application of the requirements contained in the above-referenced sections would generate unnecessary data and create unnecessary costs with regard to deciding the matter.

(4) An applicant for site plan approval who desires to seek a waiver of certain of the above-referenced requirements pertaining to such applications may submit a sketch plan of the proposed project to the Planning Board in lieu of a complete site plan. The Planning Board shall review the sketch plan, advise the applicant as to potential problems and concerns and determine if any additional site plan information is required. The Planning Board shall consider such a sketch plan as adequate when, in its judgment, the information submitted is sufficient to make a determination of compliance with the development standards in § 50-20 of this article, and specifically § 50-22.

(5) Nothing herein shall authorize the Planning Board to waive state environmental quality review requirements.

(6) The Planning Board must set forth in its record of proceedings the precise grounds upon which it has determined to exercise its waiver authority hereunder, which shall include a clear statement of what requirements of § 50-22 of this chapter have been waived and the reason for the waiver of each and every such requirement.

§ 50-21 Special use standards.

Uses specified as special uses under district regulations of this chapter shall be permitted only after review, public hearing and approval by the Town of Neversink Planning Board pursuant to the express standards, procedures and criteria set forth below:

A. The proposed use:

(1) Shall be in harmony with purposes, goals, objectives and standards of the Town of Neversink Master Plan, this chapter and all other laws and regulations of the Town and other governmental agencies.

(2) At the proposed location shall not result in a detrimental over-concentration of a particular use either within the Town or within the immediate area.

(3) At the proposed location shall not result in a substantial or undue adverse effect on other property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites, rights-of-way or other matters affecting the public health, safety and general welfare of the Town.

(4) Shall not impose an undue burden on any of the improvements, facilities, utilities and services of the Town, whether such services are provided by the Town or some other agency.

(5) Shall be adequately screened or buffered from residential uses located proximate to the proposed use.

B. No application for issuance of a special use permit shall be approved unless the Planning Board shall find that, in addition to complying with each of the standards enumerated above, all other applicable standards of the chapter shall be met. In instances where the standards contained herein do not adequately protect the general health, safety and welfare of parties affected, the Planning Board shall be obligated to impose such conditions in issuance of a permit Conditions which might be imposed shall include, but not be limited to, provisions for additional parking or traffic control, requirement of additional setbacks; special measures addressing sales periods or hours of operation; and other conditions which can be effectuated to remove any potential adverse influence the use may have on other properties. In reviewing a site plan and determining what conditions, if any, shall be attached for approval, the Planning Board shall consider:

(1) The location, arrangement, size, design and general site compatibility of buildings, lighting and signs.

(2) The adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, pavement surfaces, dividers and traffic controls.

(3) The location, arrangement, appearance and sufficiency of off-street parking and loading.

(4) The adequacy and arrangement of pedestrian traffic access and circulation, walkway structures, control of intersections with vehicular traffic and overall pedestrian convenience.

(5) The adequacy of stormwater drainage facilities.

(6) The adequacy of water supply and sewage disposal facilities.

(7) The adequacy, type and arrangement of trees, shrubs or fencing providing necessary screening or buffering between the applicant's land and lands potentially affected by the applicant's proposal. Where possible, preference should be given to the retention of existing vegetation or the planting of dense evergreen nursery material.

(8) The adequacy of fire lanes and other emergency zones.

(9) The adequacy and impact of structures, roadways and landscaping in areas with susceptibility to ponding and flooding.

(10) The adequacy of erosion and sedimentation control plans.

C. The burden of proof shall remain with the applicant to show compliance with all standards. The burden shall never shift to the Town.

D. In addition to the special use standards set forth in § 50-21A through C, certain uses must meet additional standards and criteria, as follows:

(1) Automotive repair, including auto body repair shops.

(a) Vehicle lifts or pits and all parts or supplies shall be located within a building enclosed on all sides.

(b) All service or repair of motor vehicles, other than minor servicing such as the changing of tires or sale of gasoline or oil, shall be conducted in a building enclosed on all sides.

(c) No building permit shall be issued for an automotive repair shop within a distance of 500 feet of any school, church or place of public assembly designed for the simultaneous use and occupancy by more than 100 persons, said distance to be measured in a straight line between the nearest points of each of the lots or premises regardless of the district where either premises is located.

(2) Automotive service and gasoline stations, including those with convenience stores.

(a) The minimum street frontage for such service stations shall be 200 feet unless more stringent requirements shall apply to the district in which the proposed use is located.

(b) Entrance and exit driveways shall have an unrestricted width of not less than 20 feet nor more than 25 feet, shall be located not nearer than 15 feet to any property line and shall be so laid out as to avoid the necessity of any vehicle leaving the property by backing out across any public right-of-way or any portion thereof.

(c) Vehicle lifts or pits, and all parts or supplies shall be located within a building enclosed on all sides.

(d) All service or repair of motor vehicles, other than minor servicing, such as the changing of tires or sale of gasoline or oil, shall be conducted in a building enclosed on all sides.

(e) The storage of gasoline or flammable oils in bulk shall be located no nearer than 35 feet to any property line.

(f) Gasoline pumps shall be located no nearer than 35 feet to any property line.

(g) No building permit shall be issued for a motor vehicle service station within a distance of 500 feet of any school, church or place of public assembly designed for the simultaneous use and occupancy by more than 100 persons, said distance to be measured in a straight line between the nearest points of each of the lots or premises regardless of the district where either premises is located.

(3) Campgrounds and recreational vehicle parks.

(a) Permit fees and permit.

[Added 3-25-1992 by L.L. No. 2-1992[1]]

[1] The Town Board shall, by resolution, establish and periodically update an annual permit fee for operation of a campground or recreational vehicle park.

[2] The following campgrounds or recreational vehicle parks shall not be subject to payment of the annual fee contemplated by § 50-21D(3)(a)[1]:

[a] Campgrounds or recreational vehicle parks containing five or fewer camping spaces; or

[b] Camping spaces or recreational vehicle parks in existence on August 14, 1991, shall pay a fee of $20; provided, however, that in the event of the expansion of a campground or recreational vehicle park in existence on August 14, 1991, the portion of the campground or recreational vehicle park constructed after August 14, 1991, shall be subject to the payment of the annual fee.

[3] No person shall operate a campground or recreational vehicle park prior to issuance of a permit therefor.

[4] Permits shall not be transferable or assignable.

[5] Permits shall be valid until the end of the calendar year and shall be renewable annually.

[1] Editor's Note: This local law also provided for the redesignation of former Subsections D(3)(a) through (i) as D(3)(b) through (j), respectively.

(b) Setbacks for such uses shall be at least 300 feet from all property lines.

(c) Occupancy by any individual or group of individuals in any form of permitted temporary, movable or portable shelter shall be for a period of not longer than 120 days in a twelve-month period.

(d) Each camping space shall be at least 3,000 square feet in area with a minimum average width of 30 feet. There shall be no more than 10 campsites per acre.

(e) Parking spaces for automobiles shall be 30 feet long and 12 feet wide with an eight-foot-wide strip of crushed stone or shale, or two-inch blacktop slabs over gravel on a stabilized surface. Parking spaces for automobiles with trailers or motor homes shall be 50 feet long and 14 feet wide with a ten-foot-wide strip of crushed stone or shale, or two-inch blacktop slabs over gravel on a stabilized surface.

(f) No camping space shall be located within 100 feet of any lake, pond, river or stream.

(g) Each campground shall provide a playfield at least one acre in area. At least one acre of playfield for every 25 campsites shall be provided.

(h) Campground stores are permitted in accordance with the Hamlet H District regulations for retail stores. A campground store may be accessible to the general public, but must be located on the camp-ground site and may be part of the campground office.

(i) Ancillary facilities such as stores, offices, swimming pools or service buildings shall be submitted to the Planning Board or site plan approval along with the overall development.

(j) All campgrounds shall be approved for water and sewer services by the appropriate state agency prior to final site plan approval or the issuance of a building permit.

(4) Clubhouses and organizational meeting halls.

(a) Clubhouses and organizational meeting halls shall be located no nearer than 100 feet from any property line.

(b) Off-street parking areas shall be screened from adjoining properties with a solid wood fence or planting strip of dense evergreen nursery materials no less than six feet in height.

(5) Commercial recreation facilities (indoor).

(a) Indoor commercial recreation facilities shall be located no nearer than 100 feet from any property line.

(b) The use or activity shall be conducted entirely within an enclosed structure.

(c) Off-street parking areas shall be screened from adjoining properties with a solid wood fence or planting strip of dense evergreen nursery materials no less than six feet in height.

(d) Permitted accessory uses shall include related offices, restaurants or snack bars, and related retail uses.

(6) Commercial recreation facilities (outdoor).

(a) The use or activity shall be separated from adjoining properties by no less than 300 feet of wooded area for facilities located in the RC or RR Zones and no less than 150 feet of wooded area for facilities located in the RS Zone, except for golf courses and recreational facilities integrated as part of a residential development.

(b) Off-street parking areas shall be screened from adjoining properties with a solid wood fence or planting strip of dense evergreen nursery materials no less than six feet in height.

(c) Outdoor public address systems are prohibited.

(d) Permitted accessory uses shall include related offices, restaurants, indoor recreation facilities, transient lodging accommodations, conference facilities, related retail uses, and multiple dwellings.

(7) Mining of sand, stone and gravel.

(a) All quarrying, processing operations and material storage shall be located no less than 300 feet from any lot line in the RC Zone or no less than 250 feet from any lot line in the RR Zone. The Planning Board may require a greater separation distance based on the particular circumstances of the site, the proposed use and the surrounding area.

(b) A permit from the New York State Department of Environmental Conservation shall be required for the proposed use prior to issuance of final site plan approval.

(c) If the use is not located on a state or county road, the road servicing the facility must be in such condition as to properly handle the proposed truck traffic. The Planning Board, in making a determination as to the sufficiency of a particular road, may rely on the opinion expressed by the Town Highway Superintendent or Town Engineer. The Planning Board may require financial security for damage to a road as a condition of issuance of a special use permit.

(d) The proposal shall indicate how adjacent properties and the public will be protected from the hazards of the operation, both in terms of on-site activity and off-site traffic generated by the activity.

(e) Approvals or portions of the approvals may be renewed periodically at the discretion of the Planning Board.[2]

[2] Editor's Note: Former Subsection D(7)(f) which immediately followed this subsection and which required proposals to include a specific method for rehabilitating mining sites, was repealed 3-25-1992 by L.L. No. 2-1992.

(8) Mobile home parks.

(a) Permit fees and permit.

[1] The Town Board shall, by resolution, establish and periodically update an annual permit fee for operation of a mobile home park.

[2] The following mobile home parks shall not be subject to payment of the annual fee comtemplated by § 50-21D(8)(a)[1]:

[Amended 3-25-1992 by L.L. No. 2-1992]

[a] Mobile home parks containing five or fewer mobile home lots; or

[b] Mobile home parks in existence on March 27, 1974, shall pay a fee of $20; provided, however, that in the event of the expansion of a mobile home park in existence on March 27, 1974, the portion of mobile home park constructed after March 27, 1974, shall be subject to payment of the annual fee.

[3] No person shall operate a mobile home park prior to issuance of a special use permit thereof.

[4] Permits shall not be transferable or assignable.

[5] Permits shall be valid until the end of the calendar year and shall be renewable annually.

[6] Renewal applications shall be filed with the Code Enforcement Officer before the first day of November next preceding the expiration of the original permit or any renewal thereof. Prior to the issuance of a renewal permit, the Code Enforcement Officer shall inspect the premises and report his findings to the Planning Board.

(b) Lot size, density, distribution and setbacks.

[1] No more than one mobile home stand shall be permitted per site and no more than 50 mobile home sites shall be permitted per mobile home park.

[2] Each mobile home site shall contain a minimum of 10,000 square feet. Density of mobile home sites within the mobile home park shall not exceed two mobile home sites per acre.

[3] All mobile homes and accessory structures shall be set back at least 150 feet from any street or right-of-way, 150 feet from any property line and 40 feet from the center line of any internal private street. Minimum separation distance between mobile homes shall be 50 feet.

[4] A twenty-five-foot landscaped and planted buffer area shall surround the mobile home park.

(c) The water supply service to the mobile home park shall be approved by the New York State Department of Health prior to issuance of a special use permit.

(d) The mobile home park's sewage disposal system(s) shall be approved by the New York State Department of Environmental Conservation and the New York City Department of Environmental Protection, where applicable, prior to issuance of a special use permit.

(e) All utilities, including electric power, telephone service and cable television service shall be installed underground.

(f) Access to a mobile home park shall be provided by not more than two connections to a public street.

(g) A smooth, hard surface, year-round paved patio area shall be provided for each mobile home site measuring not less than 10 feet by 18 feet. Such patio shall be located adjacent and parallel to the mobile home.

(h) Dead-end streets shall be limited to a length of 600 feet and shall be provided with a turnaround having an outside radius of 60 feet.

(i) Grades of all internal private streets shall not exceed 10%.

(j) All mobile home parks containing 10 or more mobile home sites shall provide one or more recreation areas which shall be accessible to all park residents. The size of such recreation area(s) shall be a minimum of 500 square feet for each mobile home site. Playground equipment shall be installed in each required recreation area.

(9) Mobile homes outside of mobile home parks.

[Added 5-27-1998 by L.L. No. 1-1998[3]]

(a) General regulations.

[1] A mobile home may be placed in the Town only after obtaining a mobile home permit and shall require a certificate of occupancy before initial occupancy.

[2] Mobile homes located outside of mobile home parks shall comply with all area and bulk requirements that apply to single-family houses in the same zoning district.

[3] All mobile homes shall be connected to an adequate supply of potable water; shall be connected to a public sewer system or septic system constructed in accordance with all state, City of New York and local regulations; and shall be connected to all applicable utilities. All of the foregoing connections or services shall be provided to the mobile home within 90 days of issuance of the permit for placement of the mobile home.

(b) Mobile home standards. All mobile homes installed in the Town of Neversink shall meet the following minimum requirements:

[1] All mobile homes hereafter erected in the Town shall be Underwriter Laboratory certified; bear the seal of the United States Department of Housing and Urban Development; and be no older than 12 years as measured from the date of manufacture.

[Amended 8-12-2009 by L.L. No. 3-2009]

[2] All mobile homes shall have roofs, with a minimum pitch of three vertical to 12 horizontal.

[3] All mobile homes shall have not fewer than two means of ingress/egress.

(c) Permanent placement of mobile homes on site.

[1] Mobile homes shall be installed on a load-bearing foundation or placed on a concrete slab. Skirting shall be installed which is made of a fire-retardant material specifically designed for the application to mobile homes as skirting or consist of a permanently installed masonry wall.

[2] The skirting shall be capable of removal to provide access to the closed-off area or in the case of masonry walls contain two doors or openings on opposite sides of the structure to allow access to the closed-off area for maintenance and emergency access.

[3] The structural frame of the mobile home must be securely attached to the foundation or concrete slab in four or more locations to ensure stability of the mobile homes.

[4] Permanent steps or ramps with hand rails shall be constructed at all access points of the mobile home to ensure a safe means of ingress/egress into the dwelling unit.

(d) Exceptions to permanent placement requirements.

[1] Construction field office. A single mobile home unit may be temporarily located in any zoning district for use as a construction field office. A construction field office may not be installed prior to 30 days before the commencement of the construction project and must be removed within 30 days after the completion of the construction project.

[2] Temporary placement of mobile homes. It shall be unlawful to store any mobile home on any property within the Town of Neversink for a period in excess of 30 days.

(e) Prohibited uses for mobile homes. Mobile homes shall be used for single-family dwelling purposes only. All other uses, including but not limited to use as a warehouse, storage shed, tool shed, outbuilding or garage, are prohibited.

(f) Nonconforming mobile homes. Any mobile home in existence at the time of the adoption of this subsection which is not in full compliance with this chapter may remain in its existing location but may not be otherwise relocated within the Town. No mobile home previously occupied as a dwelling may be converted to a use prohibited by this chapter.

[3] Editor's Note: This local law also renumbered former Subsections D(9) through (13) as D(10) through (14), respectively.

(10) Motels.

(a) There shall be at least 2,500 square feet of lot area for each guest room.

(b) Permitted accessory uses to a motel on the same lot may include related offices, restaurants and conference rooms.

(11) Multiple dwellings.

(a) Parking areas shall be located at least 25 feet from a property line and shall not be located in a front yard. Parking areas shall be screened from adjoining properties by a solid wood fence or planting strip of dense evergreen nursery material no less than six feet in height.

(b) Density of multiple dwellings serviced by central sewer systems shall not exceed two units per acre. Density of multiple dwellings not serviced by central sewer systems shall not exceed one unit per acre.

[Amended 7-12-2006 by L.L. No. 1-2006]

(c) All areas of the multiple-dwelling development not occupied by buildings and required or proposed improvements shall remain as either permanent open space or recreation area to be used for the sole benefit and enjoyment of the residents of the units located within the development.

(d) A recreation area shall be provided for all developments in excess of 10 units. The size of such recreation area(s) shall be a minimum of 500 square feet for each multiple-dwelling unit. Playground equipment shall be installed in each required recreation area.

(e) The following design criteria shall apply to multiple-dwelling developments:

[1] There shall be no more than four dwellings in each multiple-dwelling building.

[2] Access to a multiple-dwelling development shall be provided by not more than two connections to a public street.

[3] No more than 32 parking spaces shall be provided in one lot, nor more than eight in a continuous row without being interrupted by landscaping. All off-street parking shall be adequately lighted and also arranged as to direct light away from any residence.

[4] No multiple-dwelling building shall be erected within 50 feet of any other multiple-dwelling building.

[5] All multiple-dwelling buildings shall be a minimum of 50 feet from any lot line.

[6] A planting strip of up to 25 feet in width may be required to buffer adjoining property owners and ensure privacy. A landscaping plan shall be prepared and approved by the Planning Board.

(12) Sawmill, commercial.

(a) The sawmill and all yards or areas for storage of logs, lumber or loading or unloading of trucks shall be located no less than 200 feet from a property line.

(b) If the use is not located on a state or county road, the road servicing the facility must be in such condition as to properly handle the proposed truck traffic. The Planning Board, in making a determination as to the sufficiency of a particular road, may rely on the opinion expressed by the Town Highway Superintendent or Town Engineer. The Planning Board may require financial security for damage to a road as a condition of issuance of a special use permit.

(13) Veterinary clinics and kennels.

[Amended 7-12-2006 by L.L. No. 1-2006]

(a) All buildings and outdoor kennels shall be located no less than 100 feet from a lot line.

(b) All activities shall be conducted indoors, except outdoor runs, which shall be located no less than 200 feet from the lot line.

(c) Neighborhood property shall be adequately protected from noise, odors and unsightly appearance.

(d) All dogs within veterinary clinics and kennels shall be housed indoors from 9:00 p.m. to 7:00 a.m.

(e) In addition to the minimum lot size, a minimum of 500 square feet shall be provided for each animal boarded for purposes of maintaining adequate indoor and outdoor space dedicated for their care.

(f) In issuing the special permit, the permit shall stipulate the maximum number and type of animals to be boarded, harbored or trained.

(14) Wholesale storage and warehouses.

(a) Truck loading docks shall not be located in front yards.

(b) Truck docks, parking and loading areas shall be screened from adjoining properties with a solid wood fence, or planting strip of dense evergreen nursery materials no less than six feet in height.

(15) (Reserved)

(16) Outdoor furnaces.

[Added 7-12-2006 by L.L. No. 1-2006]

(a) Although outdoor boilers/furnaces may provide an economical alternative to conventional heating systems, concerns have been raised regarding the safety and environmental impacts of these heating devices, particularly the production of offensive odors and potential health effects of uncontrolled emissions. The special use permit required by this subsection is intended to ensure that outdoor boilers/furnaces are located, installed and operated in a manner that does not create a nuisance and is not detrimental to the health, safety or general welfare of the residents of the Town.

(b) Definitions. As used in this subsection, the following terms shall have the meanings indicated:

FIREWOOD

Trunks and branches of trees, but not including leaves, needles, vines or brush smaller that three inches in diameter.

OUTDOOR BOILER and OUTDOOR FURNACE (OBs)

Any equipment, device or apparatus, or any part thereof, which is designed to be installed, affixed or situated outdoors for the primary purpose of combustion of firewood, untreated lumber or other combustible material recommended by the device manufacturer to produce heat or energy used as a component of a heating system providing heat for any interior space.

UNTREATED LUMBER

Dry wood which has been milled and dried but which has not been treated or combined with a petroleum product, chemical preservative, glue, adhesive, stain, paint or other substance.

(c) Except as provided in Subsection D(16)(d), no person shall cause, allow or maintain the use of an OB within the Town of Neversink without having first obtained a special use permit from the Planning Board.

(d) Any OB in existence on May 4, 2006, shall be permitted to remain, provided that the owner registers the device with the Code Enforcement Officer within 60 days of the effective date of this subsection; provided, however, that upon the effective date of this subsection, the provisions of this Subsection D(16)(d) and Subsection D(16)(g) and (h) shall immediately apply to existing OBs. If the owner of an existing OB does not register the device with the Code Enforcement Officer within 60 days of the effective date of this subsection, the OB shall be removed. Upon registration of an OB that was in existence on May 4, 2006, the Code Enforcement Officer shall issue the owner with an authorization to operate the existing OB. "Existing" or "in existence" means that the OB was in operation as of May 4, 2006.

(e) Location requirements.

[1] OBs shall be permitted only on lots of three acres or more.

[2] OBs shall be set back not less than 100 feet from the nearest lot line.

[3] OBs shall not be installed or operated within 200 feet of a residence, other than the residence being heated by the OB and accessory structures located on the same lot.

[4] OBs shall not be installed or operated within 500 feet from the occupied building of a hospital, school, day-care center or nursing home or from the boundary of a municipal park.

(f) Installation requirements.

[1] OBs shall be installed and operated in accordance with manufacturer's specifications and operating instructions, a copy of which shall be provided to the Planning Board by the owner upon application for a special use permit or to the Code Enforcement Officer upon registration of an existing OB.

[2] OBs shall be installed on a concrete slab extending at least two feet in front of any load door and at least one-foot wider than the outside of the OB on all other sides.

[3] All OBs shall be equipped with a properly functioning spark arrestor.

(g) Operational requirements. OBs shall be operated in accordance with the following standards and conditions:

[1] Only dry, seasoned wood, untreated lumber or other combustible material recommended by the device manufacturer is permitted to be burned in an OB. Burning of any and all other materials in an OB is prohibited.

[2] OBs located in RC, RR-2 and RR-3 Zoning Districts, on lots of five acres or more, and more than 100 feet from the nearest property line, may be operated year-round. All other OBs shall be operated only between October 1 and May 15.

[Amended 8-12-2009 by L.L. No. 3-2009]

(h) Suspended permits or authorizations.

[1] A special permit issued pursuant to this subsection or authorization to operate an existing OB registered with the Code Enforcement Officer may be suspended as the Code Enforcement Officer may determine to be necessary to protect the health, safety or welfare of the residents of the Town of Neversink if any of the following conditions occur:

[a] Emissions from the OB exhibit greater than twenty-percent opacity (six-minute average) except for one continuous six-minute period per hour of not more than twenty-seven-percent opacity, which shall be determined as provided in 6 NYCRR 227-1.3(b);

[b] Malodorous air contaminants from the OB are detectable outside the property of the person on whose land the OB is located;

[c] The emissions from the OB interfere with the reasonable enjoyment of life or property;

[d] The emissions from the OB cause damage to vegetation or property; or

[e] The emissions from the OB are or may be harmful to human or animal health.

[2] A suspended permit or authorization to operate may be reinstated once the condition which resulted in suspension is remedied and reasonable assurances are given that such condition will not recur. Recurrence of a condition which has previously resulted in suspension of a permit or authorization to operate shall be considered a violation of this subsection subject to the penalties provided in § 50-31C hereof.

(i) Nothing contained herein shall authorize or allow burning which is prohibited by codes, laws, rules or regulations promulgated by the United States Environmental Protection Agency, the New York State Department of Environmental Conservation or any federal, state, regional or local agency. OBs, and any electrical, plumbing or other apparatus or device used in connection with an OB, shall be installed, operated and maintained in conformity with the manufacturer's specifications and any and all local, state and federal codes, laws, rules and regulations. In case of a conflict between any provision of this subsection and any applicable federal, state or local ordinances, codes, laws, rules or regulations, the more restrictive or stringent provision or requirement shall prevail.

(j) Notwithstanding the provisions of § 50-22B(2), the Planning Board may accept a sketch plan map for review for an OB, provided the Town’s Code Enforcement Officer provides the Planning Board with a letter indicating that the sketch plan map is generally accurate. Additionally, where an OB is proposed to be located on a lot of six acres or more and is set back not less than 200 feet from the nearest lot line, the Planning Board may, by resolution, dispense with the public hearing requirements otherwise required by § 50-22C of this chapter.

[Added 1-23-2008 by L.L. No. 1-2008]

(17) Communication/reception antennas. The following regulations shall apply to communication/reception antennas, which include personal wireless service facilities, cellular telephone antennas, antennas for communication service regulated by the state and/or federal government, and other commercial antennas and associated facilities, hereinafter referred to as "antenna" or "antennas." Such antennas shall be permitted only in districts as provided in the Schedule of District Regulations incorporated in this chapter pursuant to § 50-8.

[Added 1-23-2008 by L.L. No. 1-2008]

(a) Purposes:

[1] To accommodate the need for antennas while regulating the location and number thereof in the Town.

[2] To minimize the adverse visual effects of antennas through proper design, siting and vegetative screening.

[3] To avoid potential damage to adjacent properties from antennas' support structure failure and falling ice through engineering and proper siting of antennas.

[4] To encourage the joint use of antenna support structures and thereby reduce the number of such structures needed in the future.

(b) Use regulations and parcel size. No antenna shall be used, erected, moved, reconstructed, changed or altered, and no existing structure shall be modified to support or be used as an antenna unless in conformity with this § 50-21D(17).

[1] New structures. An antenna that is either not mounted on a lawfully existing structure or is more than 10 feet higher than the lawful existing structure on which it is mounted shall require a special use permit in accordance with this article and the parcel on which such antenna is to be located shall have a minimum lot area of not less than five acres.

[2] Existing structures. An antenna site with an antenna that is attached to a lawfully existing communications tower, smoke stack or chimney, water tower or other tall structure shall be considered an accessory use to such existing structure and need not meet the minimum lot area requirements established by the Schedule of District Regulations and shall be permitted by building permit only, provided that such antenna does not exceed the height of such lawfully existing structure by more than 10 feet.

[3] Associated use. All other uses ancillary to the antenna, its support structure and associated equipment, including, for example, but not limited to, a business office, maintenance depot or vehicle storage, are prohibited from the antenna site, unless otherwise permitted in the district in which the antenna and its support structure are located. Use of the antenna, its support structure or the antenna site for purposes of advertising is prohibited.

(c) Special permit standards.

[1] Siting and visual impact. All antennas and accessory facilities shall be sited to minimize visual effect on the neighborhood and the community. The applicant shall submit a completed visual environmental assessment form (visual EAF) addressing the standards of this § 50-21D(17) with particular attention to visibility from key viewpoints within and outside the Town as identified in the visual EAF. The Planning Board may require the submission of a more detailed visual analysis based upon what is disclosed by the visual EAF.

[2] Location requirement. The applicant shall demonstrate, using technological evidence, that the antenna is necessary to provide reliable service within the Town and the surrounding area.

[3] New tower; shared use. No new tower shall be approved unless the applicant proves that it cannot co-locate on any existing tower or other existing structure due to structural, coverage or technical limitations. The Planning Board may deny the application to construct a new tower if the applicant has not made a good faith effort to arrange to mount the antenna on an existing structure.

[4] Antenna height. The applicant shall demonstrate that the antenna is the minimum height required to function satisfactorily. No antenna that is taller than such minimum height shall be approved. In any event, no antenna, including any tower or other antenna support structure, shall have a height exceeding 195 feet above the natural ground level existing at the proposed site.

[5] Setbacks from base of antenna support structure. If a new antenna support structure is constructed (as opposed to mounting the antenna on an existing structure), the minimum distance between the base of the support structure and property lines shall be not less than the height of the proposed new support structure and in all cases meet or exceed the applicable setback distances provided in the Schedule of District Regulations for the district in which the site is located. All guy-wire anchors and accessory facilities shall be set back in accordance with the applicable setback distances provided in the Schedule of District Regulations for the district in which the site is located.

[6] Antenna support structure safety. The applicant shall demonstrate that the proposed antenna and support structure are safe and that the surrounding areas will not be negatively affected by support structure failure, falling ice or other debris. All support structures shall be fitted with anticlimbing devices.

[7] Fencing. The Planning Board may require that a fence shall be erected around the antenna support structure and other equipment, unless the antenna is mounted on an existing structure. The fence shall be a minimum of eight feet in height.

[8] Landscaping. In the event the base of the facility is visible from an inhabited residential property, the Planning Board may require landscaping to screen the base of the facility. Building materials, colors and textures of associated facilities shall blend with the natural surroundings to the greatest extent possible. The Planning Board may permit any combination of existing vegetation, topography, walls, decorative fences or other features instead of landscaping. If the antenna is mounted on an existing structure, and other equipment is housed within such existing structure, landscaping shall not be required. In addition, existing vegetation on and around the site shall be preserved, if possible.

[9] Other users. In order to reduce the number of antenna support structures needed in the community in the future, the proposed structure shall be designed to support commercial co-location and the owner/operator thereof shall be required to allow other users, including other personal wireless service providers and local municipal, fire, police, ambulance and emergency services that are based in the Town to utilize the proposed antenna support structure.

[10] Licenses. The applicant shall demonstrate to the Planning Board that it has obtained any required licenses from the Federal Communications Commission, the State of New York and any other agencies having jurisdiction over the antenna.

[11] Access and parking. An access drive and parking area shall be provided to afford adequate emergency and service ingress and egress to the antenna. The Planning Board may require such access drive and parking area to be constructed to such standard as it deems reasonable, taking into consideration the length and slope of such access drive. Use of existing access drives shall be preferred.

[12] Lighting, color and camouflaging. No antenna and no antenna support structure shall be artificially lighted except when required by the Federal Aviation Administration (FAA). In order to reduce visual impact, antenna support structures shall be painted gray or have a galvanized finish retained above the surrounding tree line, and shall be painted gray, green or black below the surrounding tree line unless otherwise required by the FAA. The Planning Board may require camouflaging, the use of stealth techniques and/or impose other conditions as may be required to minimize visual impacts, including but not limited to requiring the antenna support structure to be in the shape of a tree, flagpole, church steeple or other similar tall structures.

[13] Surety requirement. Prior to issuance of a building permit, the applicant shall provide financial security to the Town by a surety acceptable to the Town Board and in an amount and form acceptable to the Town Board to ensure full and complete performance of all conditions imposed by the Planning Board as a requirement of the special use permit, including but not limited to adequate construction of the facility and its access road, the proper installation and maintenance of all required landscaping and screening, and to ensure removal of the facility, including removal of all antennas, their support structures and restoration of the site upon abandonment or discontinuance of use thereof. Proof of continuation of such financial security shall be submitted annually to the Town. Failure to continually maintain such financial security in full force and effect shall constitute an event of abandonment and/or discontinuance of the facility under § 50-21D(17)(d) below.

[14] Monitoring and maintenance. All antennas, their support structures and accessory facilities shall be maintained in good condition, including, but not limited to, structural integrity, painting, maintenance of stealth technology camouflaging and maintenance of buffer areas and landscaping. Failure to monitor and maintain the antennas, their support structures and accessory facilities in accordance herewith shall constitute an event of abandonment and/or discontinuance of the facility under § 50-21D(17)(d) below.

[15] Liability insurance. Prior to commencing any work to develop the site and/or erect and install the antenna and its support structure, the applicant, owner or operator shall submit to the Town proof of liability insurance covering the facility in an amount not less than $1,000,000, which coverage shall be continually maintained at all times that the antenna, the support structure and the accessory facilities are present upon the site. Failure to maintain the liability insurance in accordance herewith shall constitute an event of abandonment and/or discontinuance of the facility under § 50-21D(17)(d) below.

(d) Necessity of actual use; effect of abandonment and/or discontinuance.

[1] No antenna support structure shall be erected and no building permit shall be issued therefor unless and until the Town is provided proof that the owner/operator thereof has a binding agreement with a service provider to install and operate a working antenna thereon.

[2] Any special use permit issued pursuant to this § 50-21D(17) shall expire 18 months after approval by the Planning Board unless the approved antenna support structure has been completely erected and a working antenna has been installed thereon that is actually providing service through a recognized carrier, proof of which shall be required before a certificate of occupancy or compliance may be issued. The Planning Board may extend the foregoing time period upon a showing of reasonable cause.

[3] Any antenna on a support structure approved pursuant to this § 50-21D(17) that is not operated for a continuous period of 12 months shall be considered abandoned and the owner thereof shall physically remove such antenna and its support structure within 90 days of the giving by the Town of a written notice to the owner of the antenna and support structure to remove after a public hearing and opportunity for the owner of the antenna and support structure to be heard. The notice of such public hearing shall be given by personal delivery or by certified mail or by a recognized next-day delivery service such that it is received by the owner of the antenna and support structure at least 10 days prior to such hearing. Physical removal shall include, but not be limited to, removal of all antennas, the support structure in its entirety, all associated facilities and fencing, and restoration of the site to its original condition with the exception of grading, underground facilities and foundations and landscaping. Upon failure to physically remove any such antenna and its support structure within the time provided, the Town shall be deemed authorized by virtue of the application for and acceptance of the special use permit to enter upon the site, effect such physical removal and restoration and charge back the cost of removal and restoration to the surety who posted the security required pursuant to § 50-21D(17)(c)[13] above, and/or the owner/operator of the antenna and its support structure, and/or the operators of all antennas placed thereon, and/or the owner of the property on which the same is situate, together with all costs and expenses incurred by the Town in connection therewith, including reasonable attorneys' fees.

(18) Amateur radio communications towers.

[Added 1-23-2008 by L.L. No. 1-2008]

(a) Purpose and intent. The purpose of this § 50-21D(18) is to establish regulations for the siting of amateur radio communications towers in order to accommodate such equipment as required by the Federal Communications Commission Order dated September 16, 1989, known as PRB-1, while protecting the public against any adverse impacts on aesthetic resources, assuring public safety and welfare, minimizing visual impacts through proper design, siting and screening, and avoiding potential physical damage to adjacent properties.

(b) Definition. As used herein, the following term shall have the meaning indicated:

AMATEUR RADIO COMMUNICATIONS TOWER

A structure or series of structures, attached to or not attached to a building, which are used in the transmission of amateur radio communications.

(c) Application requirements. The applicant for a special use permit shall be required to provide the following information in addition to the information required in § 50-22 of this chapter:

[1] A scaled plan or drawing of the proposed amateur radio communications tower, with design data, certified by a licensed professional engineer or the manufacturer that such tower meets or exceeds the current specifications of the Electronics Industry Association guidelines or the Telecommunication Industry Association guidelines.

[2] Satisfactory evidence that such tower shall be constructed to meet all regulations established in the New York State Uniform Fire Prevention and Building Code.

[3] A plot plan prepared by a licensed land surveyor or licensed professional engineer showing the lot or parcel upon which such tower is to be erected and showing the location of all structures on the lot or parcel, any and all easements and the location of the proposed tower.

[4] Proof that the applicant, who must be the property owner or a lawful occupant of the property, is an amateur radio operator duly licensed by the Federal Communications Commission. If the license holder is not the owner of the property, the property owner must, in writing, authorize and join in the application and acknowledge that he, she or it is bound by the requirements of this § 50-21D(18).

[5] Proof of liability insurance specifically covering the proposed tower in an amount not less than $1,000,000.

(d) Planning Board review criteria. The Planning Board, in reviewing the application for a special use permit for an amateur radio communications tower, shall be guided by the following standards:

[1] The proposed tower must meet accepted engineering standards for towers of such type and use, including wind-load requirements for such structures.

[2] Whenever possible, the tower shall be to the rear of the lot or parcel.

[3] The proposed tower, including all masts and antennas, shall not exceed a height of 50 feet above ground level unless the applicant demonstrates by reliable scientific evidence that reasonable radio frequency strength cannot be achieved in the absence of a greater height. In the event such showing is made by the applicant, the height shall not exceed that which is necessary to achieve reasonable radio frequency strength.

[4] There shall be no more than one tower upon such lot or parcel.

[5] No part of the tower, including stays and guy or supporting wires, shall be in violation of the setback requirements prevailing in the district in which the lot or parcel on which it is to be erected is located. In any event, the tower itself shall be set back from all property lines not less than the height of the tower, including all masts and antennas.

[6] If the base of a ground-based tower is visible from any public right-of-way or from adjacent property, reasonable screening may be required.

[7] No tower may be located on or within conservation easements, drainage easements, public utility easements or within any reserved open space.

[8] The licensed amateur radio operator shall be required to maintain on file with the Town Code Enforcement Officer a copy of his or her current valid Federal Communications Commission license and all renewals thereof.

[9] It shall be a condition of any approved site plan that the applicant and property owner authorize the Town Code Enforcement Officer or his designee to enter upon the premises at any reasonable time for the purpose of inspecting the tower for its construction, stability and maintenance.

[10] Co-location of personal wireless service facilities on an amateur radio communications tower shall be prohibited.

(e) Approvals. The federal government has determined that amateur radio communications towers and the activities of a licensed operator are beneficial to the public health, safety and general welfare of the community. Accordingly, provided that the proposed tower meets the requirements of this § 50-21D(18), the special use permit application shall be approved, with such reasonable conditions as the Planning Board may impose in accordance with Subsections D(18)(c) and (d) above.

(f) Abandonment and removal. By applying for the special use permit, the applicant and the property owner agree and shall be obligated to remove the tower and restore the lot or parcel to its original state upon the sale, transfer or conveyance thereof and/or upon the nonrenewal or revocation of the Federal Communications Commission license upon which the special use permit was granted and/or upon the termination of occupancy of the lot or parcel by the holder of the Federal Communications Commission license upon which the special use permit was granted.

(19) Small wind energy facilities.

[Added 3-24-2010 by L.L. No. 1-2010]

(a) Special use permit review and approval shall not be required for small wind energy facilities where the total height of the wind turbine(s) associated with such facility is 35 feet or less, the rated capacity of such wind turbine(s) is less than 10 kilowatts and the required front, rear and side yard setbacks set forth under the Schedule of District Regulations will be met. Additionally, in the event that in-kind replacement of a small wind energy facility or wind measurement tower is to be undertaken, the Code Enforcement Officer shall be notified prior to any such replacement. The Code Enforcement Officer may approve such in-kind replacement or refer the applicant to the Planning Board to determine whether special use permit approval must first be obtained.

(b) As used in § 50-21D(19) of this chapter, the following terms shall have the meanings indicated:

ACCESSORY FACILITIES OR EQUIPMENT

Any structure other than a wind turbine, related to the use and purpose of deriving, collecting or distributing energy from such wind turbines, located on or associated with a small wind energy facility.

PERMIT

A special use permit issued pursuant to § 50-21 of this chapter granting the holder the right to construct, maintain and operate a small wind energy facility.

SETBACK AGREEMENT

Any agreement, contract, easement, covenant or right in land which burdens land for the benefit of an applicant or permitee, such that the burdened land is similar in character to land on which a small wind energy facility may be sited. A setback agreement must expressly release any right which the owner(s) of such burdened land may have in the enforcement of this chapter, and acknowledge the applicable requirements of this chapter. All setback agreements shall run with the land and be recorded to apprise any potential purchasers of such land of the same for at least as long as any permit issued under this chapter shall remain in effect. In the event a setback agreement lapses prior to full decommissioning of the small wind energy facility, the previously burdened land shall be considered off site and the owner of the facility or tower shall be required to bring the project into conformance with the requirements of this chapter.

SITE

The parcel(s) of land where a small wind energy facility is to be placed. The site can be publicly or privately owned by an individual or a group of individuals controlling single or adjacent properties. Where multiple lots are in joint ownership, the combined lots shall be considered as one for purposes of applying setback requirements. Any property which has a small wind energy facility or has entered an agreement for said facility or a setback agreement shall not be considered off-site.

TOTAL HEIGHT

The highest point above ground level of any improvement related to a small wind energy facility or wind measurement tower. Total height as applied to wind turbines shall include the highest point of any wind turbine blade above the tower.

WIND TURBINE

A wind energy conversion system consisting of a tower, nacelle and associated control or conversion electronics and equipment contained within or atop the tower.

(c) In addition to the requirements of §§ 50-20 and 50-21A through C of this chapter, applications for a small wind energy facility permit shall include:

[1] A site plan prepared by a licensed professional engineer, including:

[a] Property lines and physical dimensions of the Site;

[b] Location, approximate dimensions and types of existing structures and uses on the Site, public roads, and adjoining properties within 500 feet of the boundaries of any proposed wind turbines, or two times the total height of such wind turbines, whichever shall be greater;

[c] Location of each proposed wind turbine and accessory facilities or equipment;

[d] Location of all above- and below-ground utility lines on the site as well as transformers, the interconnection point with transmission lines, and other ancillary facilities or structures, including, without limitation, accessory facilities or equipment;

[e] Locations of setback distances as required by this chapter;

[f] All other proposed facilities, including, without limitations, access roads, electrical substations, storage or maintenance units, and fencing; and

[g] Such other information as may be required by the Planning Board.

[2] The proposed make, model, picture and manufacturer's specifications of the proposed wind turbine and tower model(s), including sound pressure level data, and material safety data sheet documentation for all materials used in the operation of the equipment shall be provided for each proposed wind turbine. If a particular wind turbine has not been selected by the applicant at the time of application due to a constraint as to the availability of equipment or the inability of the applicant to obtain appropriate supplier commitments, such information shall nevertheless be provided to the Planning Board with an acknowledgement that the type of wind turbine may be modified during application review.

[3] An operations and maintenance plan providing for regular periodic maintenance schedules, any special maintenance requirements and procedures.

[4] List of property owners, with their mailing address, within 500 feet of the perimeter of the proposed site.

(d) Environmental review.

[1] Compliance with the State Environmental Quality Review Act ("SEQRA") shall be required.

[2] Applicants shall submit Part 1 of a full environmental assessment form.

(e) Setbacks, noise and height limits

[1] Small wind energy facility wind turbines shall be set back no less than the total height of the wind turbine and 25 additional feet from structures on site or off site, off-site property boundaries and public roads.

[2] Except as provided herein, the sound pressure level generated by a small wind energy facility shall not exceed more than 10 decibels above background levels at off site property boundaries. This shall be the only project operation phase noise requirement applicable to a small wind energy facility, except that the Planning Board may impose appropriate additional requirements as conditions of the special use permit.

[3] The setback and noise requirements set forth at § 50-21D(19)(1-3) of this chapter shall not apply in the event that a proper setback agreement is obtained by the permittee or applicant, or if the property is on site.

[4] Small wind energy facility wind turbines with a nameplate capacity of 10 kilowatts or less shall not exceed 125 feet in total height. small wind energy facility wind turbines with a nameplate capacity of more than 10 kilowatts but not exceeding 25 kilowatts shall not exceed 145 feet in total height.

(f) Required site safety measures for small wind energy facilities

[1] All wind turbines shall have a braking, governing or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and turbine components.

[2] With the exception of electrical collection and distribution lines, accessory facilities or equipment shall be gated or fenced to prevent unrestricted public access to the facilities.

[3] Warning signs shall be posted at the base of each tower warning of electrical shock or high voltage and containing emergency contact information.

[4] Unless fenced with an eight-foot tall barrier fence, the minimum distance between the ground and any part of the rotor or blade system shall be 30 feet for any wind turbine associated with a small wind energy facility.

(g) Issuance of small wind energy facility permits and certificates of conformity.

[1] If any approved small wind energy facility is not substantially commenced within two years of issuance of the permit, the permit shall expire unless the Planning Board shall have granted an extension.

[2] Upon commissioning of the project, which for purposes of small wind energy facilities shall mean the conversion of wind energy to electrical energy for on-site use or distribution to the electrical grid, the Code Enforcement Officer shall determine whether the project is in compliance with the special use permit. If the Code Enforcement Officer determines the project is in compliance with the permit, a certificate of conformity shall be promptly issued to the permittee.

(h) Abatement. If any wind turbine stops converting wind energy into electrical energy and/or distribution of that energy for on-site use or transmission onto the electrical grid for a continuous period of four months, the applicant / permittee shall remove said system at its own expense following, if applicable, the requirements of the decommissioning plan required under § 50-21D(19) of this chapter or any permit. Additionally, within no less than 10 days after such lapse in operation, the Town shall be notified of the cessation of electrical energy production/distribution.

(i) Permit revocation. All small wind energy facilities shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all noise and sound pressure level requirements and other permit conditions. Should a wind turbine become inoperable, or any part of a small wind energy facility be damaged, or should a violation of a permit condition occur, the permittee, owner or operator shall remedy the failure within 90 days. Upon a failure to perfect a timely remedy, project operation shall cease. This shall in no way extend or toll any time periods set forth under § 50-21D(19)(h) above.

(j) Fees.

[1] The Town Board shall have authority to establish a special use permit application fee for small wind energy facilities by resolution.

[2] In addition to any fees collected, the Town may hire any consultant and/or experts necessary to assist the Town in reviewing and evaluating permit applications, including but not limited to site inspections, the construction and modification of the site once permitted, and any requests for certification or recertification that the project is in conformity with the permit or § 50-21D(19) of this chapter. An applicant shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of consultant and expert evaluation and consultation to the Town in connection with the review of the application.

(k) Waivers and immaterial modifications.

[1] The Planning Board may, after a public hearing held upon at least 10 days advanced published notice and written mailed notice to owners of property located within 500 feet of the site, grant a waiver from the strict application of the provisions of § 50-21D(19) of this chapter to improve the quality of any small wind energy facility and to better protect the health, safety and welfare of the Town. Numerical limitations including setbacks, noise requirements and height limits shall not be waived by the Planning Board except as described at § 50-21D(19)(e) of this chapter.

[2] The Planning Board shall consider the impact of the waiver on the neighborhood, including the potential benefits or detriment to nearby properties, the benefits or detriments to the applicant, feasible alternatives and the magnitude of the request. The Planning Board may attach such conditions as it deems appropriate to waiver approvals to ensure that such waiver adequately protects the public health, safety and welfare.

[3] Unless expressly limited by a condition imposed in the permit, the Code Enforcement Officer may, during project construction, allow immaterial modifications to the design of the project as represented in the final set of site plans reviewed and considered by the Planning Board. Such immaterial modifications shall only be allowed, if at all, in response to a written request by the applicant or permittee. All such requests shall be submitted in writing, addressed to the Code Enforcement Officer, with copies to the Chairman of the Planning Board or other Town designee, and the Town's designated consultants.

[4] Immaterial alterations shall only include a change in the location, type of material or method of construction of a small wind energy facility that will not result in any material increase in any environmental impact of the project as compared to the impacts reviewed and accepted for the project by the Town Planning Board; cause the project to violate any applicable setbacks or other requirements of § 50-21D(19) of this chapter; or cause the project to not conform to the SEQRA determination or findings issued by the Planning Board. The applicant or permittee shall be required to acknowledge to the Town in written form that the requested modification is immaterial in accordance with the requirements of this section. At the request of the Town designee, Planning Board, Town's designated consultants or the Town Board, the Town may commission appropriate analyses to verify this acknowledgement, and the cost of any such analysis shall be paid in accordance with § 50-21D(19)(j) of this chapter.

E. Waiver of mobile home standards.

[Added 9-9-2020 by L.L. No. 2-2020]

(1) The Town Board shall have the power, following a determination by the Code Enforcement Officer, to grant a waiver from the provisions of § 50-21D(9)(b)[1] or [2].

(2) The burden of proof in connection with all matters relating to a waiver under this Subsection E shall be wholly with the applicant.

(3) The Town Board shall keep minutes of its proceedings held pursuant to this Subsection E and shall record the vote of each member on a waiver request, or if absent or failing to vote, indicating such fact, and shall keep records of its actions.

(4) The Town Board shall have the authority to call upon any department, agency or employee of the Town for such information or assistance as shall be deemed necessary to review the waiver request. Such department, agency or employee shall be reimbursed for any expense incurred in providing such assistance.

(5) The affirmative vote of a majority of the members of the Town Board shall be necessary to grant a waiver under this Subsection E.

(6) A waiver request shall be made within 60 days after the determination by the Code Enforcement Officer that a mobile home fails to meet the standards set forth in § 50-21D(9)(b)[1] or [2] or within 60 days of the effective date of this Subsection E for determinations made prior to such effective date.

(7) The Town Board shall fix a reasonable time for hearing a waiver request under this Subsection E and give notice thereof by publication in a newspaper of general circulation in the Town of a notice of such hearing, at least five days prior to the date thereof. In addition, the Town Board shall cause notice of such hearing to be provided to the owners of property within 500 feet of the parcel upon which the mobile home subject to the waiver request is proposed to be installed as identified by the latest assessment roll of the Town. All costs associated with providing such notice shall be borne by the person seeking the waiver.

(8) The Town Board shall decide the appeal within 62 days after conduct of the hearing on the waiver request.

(9) The decision of the Town Board on the waiver request should be filed in the office of the Town Clerk within five days of the day such decision is rendered and a copy thereof mailed to the applicant.

(10) In making its determination on the waiver request, the Town Board shall consider all information relevant to the mobile home subject to the waiver request. The Town Board may request the Town Engineer inspect the mobile home subject to a waiver request and provide the Town Board with a report on the condition of the mobile home. In the event the Town Board engages the Town Engineer to make an inspection and render a report, the cost thereof shall be borne by the applicant.

(11) The Town Board shall have the authority to impose reasonable conditions and restrictions on a grant of a waiver.

(12) In no event shall a waiver be granted for a mobile home manufactured prior to January 1, 1978.

(13) Any person or persons, jointly or severally, aggrieved by the decision of the Town Board on a waiver request may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30) days after filing the decision by the Town Board on the waiver request in the office of the Town Clerk.

§ 50-22 Site plan review procedure.

A. Sketch plan. A sketch plan conference may be held between the Planning Board and the applicant prior to the preparation and submission of a formal site plan. The intent of such a conference is to enable the applicant to inform the Planning Board of the proposal prior to the preparation of a detailed site plan and for the Planning Board to review the basic site design concept, advise the applicant as to potential problems and concerns and to generally determine the information to be required on the site plan. In order to accomplish these objectives, the applicant should provide the following:

(1) A statement and rough sketch to scale showing the locations and dimensions of principal and accessory structures, proposed vegetation and other planned features; anticipated changes in the existing topography and natural features; and, where applicable, measures and features to comply with flood hazard regulations.

(2) A sketch or map of the area to scale which clearly shows the location of the site with respect to nearby streets, rights-of-way, properties, easements and other pertinent features.

(3) A topographic or contour map of appropriate scale and detail to show site topography, with contour intervals of 20 feet or less.

B. Application for site plan approval. An application for site plan approval shall be made in writing to the Chairman of the Planning Board and shall be accompanied by information contained on the following checklist. Where the sketch plan conference was held, the accompanying information shall be drawn from the following checklist as determined necessary by the Planning Board at the sketch plan conference:

(1) Site plan checklist:

(a) The title of drawing, including the name and address of the applicant and person responsible for preparation of the drawing.

(b) The North arrow, graphic scale and date.

(c) Boundaries of the property plotted to scale.

(d) Existing watercourses and proposed watercourses.

(e) The grading, drainage, soil erosion and sedimentation control plans showing existing and proposed contours at intervals of five feet or less.

[Amended 3-25-1992 by L.L. No. 2-1992]

(f) The location, design and type of construction for the proposed use, including exterior dimensions of all buildings, parking and truck loading areas, ingress and egress, walkways and outdoor storage.

(g) Identification of the location and amount of building area proposed for retail sales or similar commercial activity.

(h) The location, design and construction materials for all existing or proposed site improvements, including drains, culverts, retaining walls and fences.

(i) A description of the method of sewage disposal and location, design and construction materials of such facilities.

(j) A description of the method of securing a water supply and location, design and construction materials of such facilities.

(k) The location and proposed development of all buffer areas, including existing vegetative cover.

(l) The general landscaping plan and planting schedule.

(m) The location of fire and other emergency zones.

(n) The location and design of all utility services.

(o) The location, size, design and type of construction of all proposed signs.

(p) The location and design of outdoor lighting facilities.

(q) A record of application for and approval status of all necessary permits from other governmental agencies.

(r) Information sufficient to enable compliance with the State Environmental Quality Review Act.[1]

[1] Editor's Note: See § 8-0101 et seq. of the Environmental Conservation Law.

(s) Other information as considered necessary by the Planning Board.

(2) The Site Plan Map shall be prepared by a licensed surveyor, professional engineer, architect, landscape architect, planner or other professional with competency in site design.

C. Planning Board action on site plan. Within 62 days of the receipt of a complete application for site plan approval, the Planning Board shall conduct a public hearing on the proposal (with public notice as provided by § 274-a of the New York State Town Law). In addition, the Planning Board shall cause notice of such hearing to be provided to the owners of property within 500 feet of the parcel subject to the application as identified on the latest assessment roll of the Town of Neversink. Such notice shall be given by certified mail at least 10 days in advance of such hearing. All costs associated with providing such notice shall be borne by the applicant. Within 62 days after such hearing, the Planning Board shall render a decision on the application and file such decision with the Town Clerk and mail such decision to the applicant, with a copy to the Code Enforcement Officer. The time within which a public hearing is to be held or a decision must be rendered may be extended by mutual consent of the applicant and Planning Board. If the special use permit has not been issued prior to site plan review, the public hearing may be held simultaneously with the public hearing required prior to issuance of a special use permit.

[Amended 1-23-2008 by L.L. No. 1-2008]

(1) Upon approval of the site plan and payment by the applicant of all fees and reimbursable costs due the Town, the Planning Board shall endorse its approval on a copy of the final site plan and shall forward a copy to the applicant and the Code Enforcement Officer and shall file a copy with the Town Clerk.

(2) Upon disapproval of a site plan, the Planning Board shall so inform the Code Enforcement Officer. The Planning Board shall also notify the applicant in writing of its decision and its reasons for disapproval. Notice of disapproval shall be filed with the Town Clerk.

D. Miscellaneous.

(1) Fees and cost of review. The applicant shall pay an application fee in such amount as is established from time to time by resolution of the Town Board and reimburse to the Town the cost of expert consultants, including but not limited to engineers, attorneys and planners, utilized by the Planning Board in order to assist it to evaluate the application and its impacts and ensure compliance with the requirements of this chapter and all other applicable laws, rules and regulations. The Planning Board may require the applicant to fund, in advance, an escrow account from which the Town may draw to ensure reimbursement of such consultant fees. The applicant shall add funds to such escrow fund during the course of the Planning Board’s review as the Planning Board may require and any funds remaining after payment of all consultant fees will be returned to the applicant.

[Amended 1-23-2008 by L.L. No. 1-2008]

(2) Inspection of improvements. The Code Enforcement Officer shall be responsible for the overall inspection of site improvements, including coordination with the Planning Board and other officials and agencies, as appropriate.