East Fishkill Town City Zoning Code
PART 3
Administrative Provisions
[Added 5-26-2022 by L.L. No. 5-2022]
§ 194-133 General.
No board, agency, officer or employee of the Town of East Fishkill shall issue, grant or approve any permit, license, certificate or other authorization for any construction, reconstruction, alteration, enlargement or moving of any building or for any use of land or building that would not be in full compliance with the provisions of this chapter.
§ 194-134 Enforcement officer.
This chapter shall be enforced by the Building and Zoning Administrator, who shall be appointed by the Town Board. No building permit or certificate of occupancy shall be issued by him except where all the provisions of this chapter have been complied with.
§ 194-135 Filing of administrative decisions.
[Added 6-14-2001 by L.L. No. 3-2001]
Each order, requirement, decision, interpretation or determination of the Building and Zoning Administrator and any other administrative official subsequently charged with the enforcement of the Zoning Chapter shall be filed in the office of such administrative official within five business days from the day it is rendered, and shall be a public record.
§ 194-136 Inspections; notices of violation.
The Building and Zoning Administrator is authorized to enter, inspect and examine any building, structure, place, premises or use in the Town of East Fishkill with regard to the provisions of this chapter and to issue a written order for the proper remedying or compliance, within a reasonable period of time, of any condition found to be in violation thereof. He shall keep a permanent record of all violations of this chapter, whether reported by private citizens or by any board, agency, officer or employee of the town, and such record shall show the disposition of all such violations.
§ 194-137 Reports.
The Building and Zoning Administrator shall make a report to the Town Board, in writing, at least once every three months, reporting the number and type of building permits and certificates of occupancy issued and listing all reported or continuing violations of this chapter and the disposition or pending action of such violations.
§ 194-138 Permit required.
No building or structure shall be erected, enlarged, structurally altered, demolished, moved or removed, wholly or partly, and no excavation for any building, structure or use shall be made, until a building permit therefor has been issued by the Building and Zoning Administrator. Except upon a written authorization of the Board of Appeals, no such building permit shall be issued for any building where such construction, addition, alteration, moving or use thereof would be in violation of any of the provisions of this chapter.
§ 194-139 Application for permit.
There shall be submitted with all applications for building permits two copies of a layout or plot plan drawn to scale, showing the actual shape and dimensions of the lot to be built upon, the exact size and location on the lot of all existing and proposed buildings, the lines within which the building or structure is to be erected or altered, the existing and intended use of each building or part thereof, the number of families or housekeeping units that a building is designed to accommodate and such other information with regard to the lot and neighboring lots that may be necessary to determine and provide for the enforcement of this chapter. All dimensions shown on the plan relating to the location and size of the lot to be built upon shall be based on an actual survey prepared by a licensed land surveyor, and the lot shall be staked out on the ground before construction is started. The Building and Zoning Administrator, after inspection of the property, may require information relative to the lot grading where the buildings are to be located.
§ 194-140 Fees.
A fee shall be charged for every building permit issued. The amount of such fee shall be as determined from time to time by the Town Board.[1]
§ 194-141 Expiration of permits.
A building permit shall be void if construction is not started within a period of 90 days or completed within a period of one year of the date of said permit, except that such building permit may be renewed by the Building and Zoning Administrator for an additional period of time, under the same procedure and pursuant to the provisions of this chapter, as they may apply.
§ 194-142 Records.
The Building and Zoning Administrator shall maintain a permanent file of all applications for building permits and of plans submitted therewith, and records of all building permits issued by him.
§ 194-143 Certificates of occupancy required.
A certificate of occupancy shall be obtained from the Building and Zoning Administrator for any of the following:
Occupancy and use of a building hereafter erected, structurally altered or moved.
Change in use of an existing building to a use of a different classification.
Occupancy and use of vacant land except for agricultural use in a district which so permits.
Change in use of land to a use of a different classification except for agricultural use in a district which so permits.
Any change in use of a nonconforming use.
§ 194-144 Application for certificate.
All certificates of occupancy shall be applied for coincident with the application for a building permit. Said certificate shall be issued within 10 days after the erection or alterations shall have been approved as complying with the provisions of this chapter. The application for a certificate of occupancy shall be accompanied by a fee which shall be fixed from time to time by the Town Board by resolution.
[Amended 9-8-1977 by L.L. No. 7-1977]
No permit for excavation for, or the erection or alteration of, or repairs to any building shall be issued until an application has been made for a certificate of occupancy.
The Building and Zoning Administrator shall not issue a certificate of occupancy without having in his possession a plot plan showing the dimensions of the building and the location of the building in relation to all property lines. This plot plan must be certified as showing the correct location of the building by a licensed land surveyor or professional engineer. Neither shall the Building and Zoning Administrator issue a certificate of occupancy unless application has been made for a driveway entrance permit where applicable.
[Amended 3-22-1979 by L.L. No. 1-1979]
Buildings being constructed with access onto roads that are covered by a performance bond shall not receive a certificate of occupancy without approval of the Town Highway Superintendent. This approval cannot be granted until the road has a suitable hard surface as determined by the Superintendent.
§ 194-145 Temporary certificates of occupancy.
[Amended 9-8-1977 by L.L. No. 7-1977]
Temporary certificates of occupancy may be issued by the Building and Zoning Administrator for individual buildings in a large-scale development or for parts of buildings proposed to be extended after the erection of such building or part thereof has been completed in conformity with the provisions of this chapter. Temporary certificates shall be issued for a period not exceeding six months but shall be renewable for six-month periods during the completion of construction or alteration of any building. Such temporary certificates shall not be issued except under such restrictions and provisions as will adequately assure the safety of the occupants of the building and of adjacent buildings and land. The applicant for a temporary certificate of occupancy shall deposit with the chief fiscal officer a performance bond in sufficient amount and duration to secure the completion of the site plan as approved. The amount of the bond shall be determined by the Town Engineer.
§ 194-146 Records.
The Building and Zoning Administrator shall maintain a record of all certificates, and copies shall be furnished upon request to any person having a proprietary or tenancy interest in the building affected.
§ 194-147 Appointment; rules of conduct and procedure. [1]
The Town Board shall appoint a Board of Appeals consisting of five members and shall designate the chairperson thereof. In the absence of the chair, the Board of Appeals may designate a member to serve as acting chair. The Board of Appeals shall, consistent with the provisions of town law, determine its own rules of conduct and procedure.
§ 194-148 Powers and duties.
§ 194-149 Training requirements.
[Added 6-24-1993 by L.L. No. 2-1993]
Within the first two years after initial appointment, a Zoning Board member shall attend a training program at an appropriate level relating to the duties of Zoning Board members, approved in the manner herein provided.
All other Zoning Board members shall attend training programs at an appropriate level during their term of office, approved in the manner herein provided.
After discussion and consultation with the Zoning Board Chair, the Town Board shall establish, by resolution, a list of approved programs and the required minimum hours of attendance, to satisfy the requirements of Subsections A and B. The Town Board may, from time to time, modify and amend the list of approved programs by resolution, after discussion and consultation with the Zoning Board Chair.
The Town Board shall chose programs which relate to the duties of Zoning Board members. These may include courses, workshops or training programs sponsored by groups such as the New York State Association of Towns, the New York State Department of State or certified training providers, the New York State Department of Environmental Conservation, the Dutchess County Planning Federation, the Westchester County Planning Federation, the New York State Planning Federation, or other appropriate entities.
All training provided pursuant to this section shall be at town expense.
By December 31 of each year, members of the Zoning Board shall file with the Town Clerk proof of attendance at any training programs required by this section.
Noncompliance with minimum requirements relating to training shall be deemed a proper cause for removal from office. A Zoning Board member who fails to attend the programs as provided in this section and specified pursuant to the resolutions promulgated thereunder, shall be subject to removal following the procedures set forth in Town Law § 267.
§ 194-149.1 Appointment and designation of alternate voting members.
[Added 2-26-2004 by L.L. No. 4-2004]
Definitions. As used in this section, the following terms shall have the meanings indicated:
An individual appointed by the Town Board to serve as a Zoning Board of Appeals member, with respect to one or more particular applications or matters, upon the designation of the Chair or Acting Chair of the Zoning Board of Appeals, when a regular Zoning Board of Appeals member is unable to participate or vote on an application or matter before the Board because such regular Zoning Board of Appeals member has determined that recusal is appropriate based upon a conflict of interest or to avoid even an appearance of impropriety; or is absent from a meeting, whether by reason of illness, vacation, seasonal or temporary relocation, work assignment, or other cause.
[Amended 2-26-2004 by L.L. No. 6-2004]
An individual appointed by the Town Board to serve on the Zoning Board of Appeals pursuant to the provisions of Section 267 of the Town Law.
The Zoning Board of Appeals of the Town of East Fishkill as established by the Town Board, pursuant to the provisions of Section 267 of the Town Law.
The Town Board may appoint one or more alternate voting members of the Zoning Board of Appeals. Each such alternate voting member shall serve for a term of five years.
All provisions of New York State law relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office, and service on other boards, and any provisions of any local laws relating to training, continuing education, compensation and attendance, shall also apply to alternate voting members. Upon appointing an alternate voting member, the Town Board shall review the background of any appointee and may, in its discretion, require that such appointee complete specified training prior to any designation to serve as an alternate voting member, or within a specified time thereafter.
The Zoning Board of Appeals Chair, or acting Chair, shall designate an alternate voting member to serve in the place of a regular Zoning Board of Appeals member in the following circumstances, and for the following periods:
[Amended 2-26-2004 by L.L. No. 6-2004]
When a regular Zoning Board of Appeals member has recused himself with respect to a matter constituting one or more particular applications before the Board, the Zoning Board of Appeals Chair, or acting Chair, shall designate an alternate voting member to serve in such regular member's place throughout the entire remaining period of the Zoning Board of Appeals' review, consideration, and voting, until the matter is concluded.
When a regular Zoning Board of Appeals member is absent from a meeting, whether by reason of illness, vacation, seasonal or temporary relocation, work assignment, or other cause, the Zoning Board of Appeals Chair, or acting Chair, shall designate an alternate voting member to serve in the place of such regular Zoning Board of Appeals member until the regular Zoning Board of Appeals member returns to service on the Board.
The Zoning Board of Appeals Chair, or Acting Chair, shall designate alternate voting members to serve as needed. In situations where there is more than one eligible alternate voting member, the designation shall take place by lot. At the time of designation of an alternate voting member, the Chair, or acting Chair, shall specify the name of any application or matter for which the designated alternate voting member will serve. The Clerk of the Zoning Board of Appeals shall enter the designation of any alternate voting member or members into the minutes of the meeting at which the designation is made. Where an alternate voting member is designated to serve in the event of an absence under Subsection D(2), the Chair, or Acting Chair, may simply state that the alternate voting member is designated to sit on all matters on the agenda for the meeting, rather than naming each matter individually.
[Amended 2-26-2004 by L.L. No. 6-2004]
Upon appointment by the Town Board, any alternate voting member shall attend the regular and special Zoning Board of Appeals meetings, on the same basis as regular members, but shall participate in discussion, deliberation and voting on the Zoning Board of Appeals only upon being designated by the Zoning Board of Appeals Chair or Acting Chair to serve, as set forth in Subsection E. Upon designation by the Chair or Acting Chair, the alternate voting member shall possess all the powers and responsibilities of a regular Zoning Board of Appeals member for the period of time for which such alternate voting member serves, with respect to any application or matter for which such alternate voting member has been designated.
Prior to deliberating or voting on a matter wherein the alternate voting member has not been present for all of the Zoning Board of Appeals meetings or hearings relating to such matter, the alternate voting member shall become familiar with the Zoning Board of Appeals' records relating to same, including the application, the environmental documents, and any other documents in the Zoning Board of Appeals files, such as minutes of meetings and hearings. Prior to voting on any such matter or application, the alternative voting member shall set forth on the record the manner in which such member has become familiar with the record before the Board.
This section shall not be deemed to require the appointment of alternate voting members by the Town Board, nor shall it be deemed to impair or restrict the authority of the Town Board to remove members of the Zoning Board of Appeals for cause.
It is the intention of this section that Zoning Board of Appeals members will recuse themselves at the earliest possible time when a conflict of interest or appearance of impropriety has arisen, and that the Zoning Board of Appeals Chair or Acting Chair will thereupon immediately notify the Town Board and designate an alternate voting member at the earliest possible time after a recusal has taken place. However, in the case of any pending applications or matters, where any Zoning Board of Appeals members have already made recusals, and it has not previously been possible to designate alternative voting members because this section was not yet enacted, the Zoning Board of Appeals Chair, or Acting Chair, shall designate the Alternative Zoning Board of Appeals member or members at the earliest possible time, so that the Zoning Board of Appeals will be able to conduct its business with a full complement of members on all pending matters and applications.
§ 194-150 Interpretation.
Upon appeal from a decision by an administrative official, the Board of Appeals shall decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.
§ 194-151 Special permits.
§ 194-152 Variances.
[Amended 9-8-1977 by L.L. No. 7-1977; 6-14-2001 by L.L. No. 3-2001]
The Board of Appeals may grant variances as set forth herein.
Use variances.
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, as defined in the Town Law.
No such use variance shall be granted by the Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
That the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood.
That the requested use variance, if granted, will not alter the essential character of the neighborhood.
That the alleged hardship has not been self-created.
The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
Area variances.
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this chapter, to grant area variances as defined in the Town Law.
In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board shall also consider:
Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.
The Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
Imposition of conditions. The Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
The application for a variance to the Board of Appeals pursuant to this chapter shall be accompanied by a fee which shall be fixed from time to time by the Town Board by resolution.
§ 194-153 Procedure.
The Board of Appeals shall act in strict accordance with the procedure specified by law and by this chapter. All appeals and applications made to the Board shall be in writing and on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of the chapter involved and shall exactly set forth the interpretation that is claimed, the use for which the special permit is sought or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. An application for a use variance must also contain an agricultural data statement (containing the name and address of the applicant; a description of the proposed project and its location; the name and address of any owner of land within the agricultural district, which land contains farm property upon which the project is proposed; and a tax map or other map showing the site of the proposed project relative to the location of farm operations identified in the agricultural data statement) if any portion of the project is located on property within an agricultural district containing a farm operation, or on property with boundaries within 500 feet of a farm operation located in an agricultural district. An appeal may be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of such ordinance or local law in the office of such administrative official. Such appeal shall be taken by filing with such administrative official and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
[Amended 6-14-2001 by L.L. No. 3-2001]
Public hearing.
[Amended 4-9-1970; 6-14-2001 by L.L. No. 3-2001; 10-26-2006 by L.L. No. 4-2006; 7-26-2007 by L.L. No. 3-2007; 6-22-2017 by L.L. No. 2-2017]
For the Planning Board, the applicant shall mail by certified mail, return receipt requested, a copy of the notice published in the official newspaper of the Town to all owners of property within 500 feet of the subject property (except in the case of appeals to the Zoning Board of Appeals for dimensional variances, in which case the notice shall be mailed to owners of property within 250 feet of the subject property). Said notice shall be mailed 20 days prior to the public hearing and an affidavit of mailing shall be filed with the Board's Clerk at least 10 business days before the public hearing, except for public hearings for special permits, which shall be subject to the relevant requirements of this chapter.
For the Zoning Board, the Clerk shall mail by first class a copy of the notice published in the official newspaper of the Town to all owners of property within 500 feet of the subject property (except in the case of appeals to the Zoning Board of Appeals for dimensional variances, in which case the notice shall be mailed to owners of property within 250 feet of the subject property). Said notice shall be mailed 20 days prior to the public hearing and an affidavit of mailing shall be filed with the Board's Clerk at least 10 business days before the public hearing, except for public hearings for special permits, which shall be subject to the relevant requirements of this chapter.
The applicant will post the property with a notice advising the public of the public hearing. The posting will be on a sign provided by the Board to the applicant and the size, shape and color of which shall be approved by the Board. One sign will be posted for each 100 feet of road frontage on all public roads abutting the property. When a property has more than 100 feet of road frontage, then the Board before which the application is pending shall determine the number, size and placement of signs to be posted on the property. The postings will be placed on the property at least 20 days before the public hearing. An affidavit of posting will be filed with the Clerk at least 10 days before the public hearing. If the public hearing is adjourned, the sign will be revised to reflect the adjourned date within five days of the adjournment. An affidavit attesting to the change of the date for purposes of adjournment will be filed with the Clerk at least one day prior to the next hearing date. The notice required herein shall be removed within five days of the close of the public hearing.
Decision. The Board of Appeals shall decide upon the appeal within 62 days after the close of the public hearing. The Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official. In making such determination, the Board shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken. Prior to any decision, the Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
[Amended 3-28-1985 by L.L. No. 4-1985; 6-14-2001 by L.L. No. 3-2001]
Every decision of the Board of Appeals shall be by resolution, each of which shall contain a full record of the findings of the Board in the particular case.
Filing and mailing decisions. Every decision or determination of the Board of Appeals shall be filed in the office of the Town Clerk within five business days after the decision is rendered, and a copy mailed to the applicant.
[Amended 6-14-2001 by L.L. No. 3-2001]
Rehearing. Any member of the Board of Appeals may make a motion to hold a rehearing to review any order, decision or determination of the Board not previously reheard. Such rehearing may occur only upon a unanimous vote of all members of the Board then present. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the Board finds that the rights vested in person acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.[1]
[Added 6-14-2001 by L.L. No. 3-2001]
§ 194-154 General power of Town Board.
[Amended 8-11-1994 by L.L. No. 5-1994]
The Town Board may from time to time on its own motion or on petition or on recommendation of the Planning Board amend, supplement or repeal the regulations and provisions of this chapter after public notice and hearing and in the manner provided by law. Where zoning amendments are adopted pursuant to the Municipal Home Rule Law, notice of hearing shall be provided in accordance with said law, and in accordance with Chapter 22 of the East Fishkill Code.
§ 194-155 Advisory report by Planning Board.
The Town Board shall refer every proposed amendment or change, whether initiated by the Town Board or by petition, to the Planning Board for its recommendations, prior to taking final action on the proposed amendment or change.
[Amended 8-11-1994 by L.L. No. 5-1994]
In recommending the adoption of such proposed amendment, the Planning Board shall state its reasons for such recommendation, describing any condition that it believes makes the amendment advisable and specifically setting forth the manner in which, in its opinion, the amendment would be in harmony with the town's Land Use Plan and would be in furtherance of the purposes set forth in Article I of this chapter. In recommending the rejection or revision of any proposed amendment, the Planning Board shall similarly state its reasons.
The Town Board shall not take final action on the proposed amendment unless it has received the Planning Board's report, except that if the Planning Board fails to report thereon within 30 days from the date of referral, the Town Board may act on the proposed amendment without the Planning Board's report.
[Amended 8-11-1994 by L.L. No. 5-1994]
§ 194-156 Referral to Dutchess County Department of Planning and Development.
[Amended 8-11-1994 by L.L. No. 5-1994]
Where required under General Municipal Law §§ 239-l and 239-m, the proposed amendment shall be forwarded to the Dutchess County Department of Planning and Development prior to final action thereon.
§ 194-156.1 Consideration of Greenway Connections.
[Added 11-14-2002 by L.L. No. 1-2002]
Whenever undertaking any amendment, supplement or repeal of the Zoning Code of the Town of East Fishkill, the Town Board shall consider the statement of land use policies, principles and guidelines contained in the Greenway Connections, in its deliberative process, as set forth in Chapter 117 of this Code.
§ 194-156.2 Public notice requirements.
[Added 6-25-2009 by L.L. No. 1-2009; amended 6-22-2017 by L.L. No. 2-2017]
In addition to the publication of notices of public hearing and the posting on the Town Clerk's bulletin board as set forth in the Zoning Ordinance, the additional notice provisions shall be required.
The Town Clerk shall mail, by first class mail, a copy of the notice published in the official newspaper of the Town to all owners of property within 500 feet of the property which is the subject of the proposed rezoning. Said notice shall be mailed 20 days prior to the public hearing and an affidavit of mailing shall be filed by the Clerk in her file at least 10 days prior to the public hearing; and
The Town Board shall cause the applicant to post the property with the notice advising the public of the public hearing. The posting will be on a sign or signs as designated by the Town Board and obtained by the applicant, and the shape, size and color shall be approved by the Town Board. One sign will be posted for each 100 feet of road frontage on all public roads abutting the property. When a property has more than 200 feet of road frontage, then the Town Board shall determine the number, size and placement of the signs to be posted on the property. The postings shall be placed on the property at least 20 days before the public hearing. If the public hearing is adjourned, the sign shall be revised to reflect the adjourned date within five days of the adjournment. An affidavit attesting to the change of date shall be filed with the Town Clerk. The notice required herein shall be removed within five days of the close of the public hearing.
§ 194-157 Fee.
[Amended 9-8-1977 by L.L. No. 7-1977]
Every petition for an amendment to this chapter shall be accompanied by a fee which shall be fixed from time to time by the Town Board by resolution.
§ 194-158 General.
In their interpretation and application, the provisions of this chapter shall be held to be minimum requirements adopted for the promotion and protection of the public health, morals, safety and general welfare.
§ 194-159 Relation to other regulations.
Whenever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules, regulations or ordinances, the most restrictive or that imposing the highest standards shall govern.
§ 194-160 Effect on public properties.
This chapter is not intended to restrict the construction or use of public buildings or lands or property supported in part or in whole by taxes on property in the Town of East Fishkill, in the exercise of a governmental function.
§ 194-161 Effect on public utilities.
[Amended 6-11-1998 by L.L. No. 5-1998]
The construction and modification of commercial communications towers and antenna installations is permitted as shown in the use schedules, and requires a special permit as provided in § 194-76. The construction or modification of other public utility structures, including the construction or use of underground or overhead lines or other structures used for public utility purposes and subject to the jurisdiction of the Public Service Commission of the State of New York is a permitted use in the Industrial districts in the town, as shown on the use schedule. The establishment of public utility buildings or substations in residential zones requires a special permit from the Zoning Board of Appeals. The issuance of any special permit is subject to such conditions as the Board of Appeals may impose in order to preserve and protect the character of the district
§ 194-162 Penalties for offenses.
[Amended 9-13-1990 by L.L. No. 6-1990]
A violation of this chapter or any portion thereof is hereby declared to be a misdemeanor punishable by a fine not exceeding $1,000 or imprisonment for a period not to exceed six months, or both. Each week's continued violation shall constitute a separate additional violation.
Nothing herein contained shall in any way limit the use of any appropriate action or proceedings at law or in equity to prevent unlawful construction or to restrain, correct or abate any violation or to prevent illegal occupancy of a building, structure or premises or to prevent illegal acts, conduct or business in or about any premises; and those remedies shall be in addition to the penalties prescribed in Subsection A.
§ 194-163 Complaints of violations.
Whenever a violation of this chapter occurs, any person may file a complaint in regard thereto. All such complaints must be in writing and shall be filed with the Building Inspector, who shall properly record such complaint and immediately investigate and report thereon to the Town Board.
§ 194-164 Affordable Housing.
Intent and purpose. It is the intent and purpose of the Town of East Fishkill to increase the number of affordable housing units available to low/moderate-income families as defined in § 194-3.
Requirements and incentives for participation. In order to provide affordable housing in the Town of East Fishkill, the Town hereby provides a system of zoning incentives, pursuant to Town Law § 261-b, in the form of additional permitted housing units and permitted reduced lot sizes, as follows:
CRD Districts. No less than 10% of the base number of permitted units in a CRD project shall meet the requirements of this section. Upon request of the developer, the Planning Board may consider approving the inclusion of an additional 5% of affordable units. The number of additional incentive market-rate units to be allowed shall be calculated, pursuant to Subsection B(4) below, based upon the number of affordable units being provided.
R-3, R-2, R-1.5, and R-1 Zoning Districts. The Planning Board may approve an application by a developer to include affordable housing units in a conventional cluster or cluster subdivision in these zoning districts, constituting up to 15% of the base number of permitted units. The number of additional incentive market-rate units to be allowed shall be calculated pursuant to Subsection B(4) below, based upon the number of affordable housing units being provided.
Conventional subdivisions. The base number of permitted units in a conventional subdivision shall be based upon a conventional subdivision layout that conforms with Zoning Law and subdivision regulation[1] requirements, including provisions on environmentally sensitive lands. For purposes of incorporating the affordable housing incentive units into the subdivision, and pursuant to the authority of Town Law § 261-b, the Town Board hereby authorizes the Planning Board to permit a reduction in the minimum lot size of the underlying zone for any of the lots in the subdivision, not less than 3/4 of the minimum lot size required in the bulk regulations for the underlying zone, provided that all lots must also:
Comply with all other bulk requirements, including FAR, of the underlying zone; and
Comply with the provisions on minimum buildable area in § 194-14.1B(2).
Cluster subdivisions. The base number of permitted units in a cluster subdivision shall be the number based upon a conventional subdivision layout that conforms with Zoning Law and subdivision regulation[2] requirements, including provisions on environmentally sensitive lands (278 Plan). See also § 163-33 of the subdivision regulations. The permitted lot sizes in a cluster subdivision providing affordable housing units shall be those set forth in § 164-33K and L, and the lot sizes shall not be further reduced for affordable housing. After the determination of the base number of permitted units based upon the 278 Plan, the Planning Board need not require the preparation of an additional conventional layout plan to demonstrate the viability of the inclusion of the additional incentive market-rate lots, if the additional incentive market-rate lots do not constitute more than a ten-percent increase over the base number of permitted units, and the additional incentive market-rate lots can, in the Planning Board's judgment. be readily accommodated within the proposed cluster layout. If the Planning Board does require an additional conventional layout plan to demonstrate the viability of the inclusion of the additional incentive market-rate lots, such plan shall be prepared using the reduced lot size standards set forth in § 194-164B(2)(a).
Notwithstanding the foregoing, the Town Board shall have the authority to approve an affordable housing project which participates in a state or federal program and set the appropriate percentage of affordable units, up to 40%, and a percentage of median Dutchess County family income, not higher than 90%, different than that set forth for the local program.
Additional incentive market-rate units. For every affordable housing unit that a developer agrees to construct, the developer shall be allowed to build one additional market-rate unit, above the maximum number otherwise permitted under the applicable provisions of this Code. For example: If a developer is allowed to construct 100 units under the Code, and of these 100, 10 units will be "affordable housing units" then the total number of units that the developer could construct would be 110 (90 market rate plus 10 affordable housing units plus 10 bonus units (i.e., 1 x 10 affordable units = 10). If the number of affordable units being provided is reduced during the SEQR review process, then the number of additional incentive market-rate units shall be reduced accordingly.
Development standards. Affordable units must meet the following standards:
All affordable housing units shall be physically integrated into the design of the development. Affordable housing units shall be constructed to the same quality standards as market-rate units. The exterior finishes for affordable units shall be indistinguishable from all other units. The developer may, however, substitute different appliances and interior hardware where such substitutions would not adversely impact the livability of the unit.
Affordable housing units shall have no less than 80% of the square footage of market rate units for the same number of bedrooms.
The landowner and developer must agree to file a declaration at the time of subdivision identifying the units which are affordable housing units, and restricting their future sales price and rental price under the provisions of this section. The declaration shall include a provision requiring that every deed for an affordable housing unit shall include the following paragraph to inform all future sellers and buyers that this unit is an affordable housing unit subject to the provisions of this section:
"This dwelling has been constructed for use by low/moderate-income families pursuant to a special program under the East Fishkill Code. Its future sale (including resale) or rent must be to persons who qualify with the income requirements and at a price in accordance with the program." |
All Affordable housing units shall generally be physically distributed throughout the development in the same proportion as other housing units, though the Planning Board may use discretion in reviewing and approving distribution.
Eligibility and preference to purchase or rent an affordable housing unit.
To be eligible to purchase or rent an affordable housing unit, the household's aggregate annual income must be 80% or lower of the Dutchess County median family income for a family of a particular size as determined annually by the United States Department of Housing and Urban Development (HUD).
Preference to purchase or rent.
Among income-eligible households, preference to purchase or rent affordable housing units shall be given to the following types of households, in order:
Employees of the Town of East Fishkill.
A member of East Fishkill's Volunteer Fire Department.
Elderly (65 or older) or disabled residents of the Town.
Honorably discharged US veterans who are residents of the Town.
All other Town residents.
People who work at businesses within the Town.
Others.
Calculation of initial sales price of affordable housing units. Maximum sale price shall be set by resolution of the Town Board, as amended from time to time, after review of relevant information that may be provided by federal and state affordable housing departments as well as developers. The initial sale price of a unit shall be calculated such that the annual cost of the sum of principal, interest, taxes and insurance (PITI) and common charges, as applicable, shall not exceed 30% of the income for a low/moderate-income household.
Calculation of permissible rent. Maximum monthly rent (including estimated utilities) shall be set by resolution of the Town Board, as amended from time to time, after review of relevant information that may be provided by federal and state affordable housing departments as well as developers. The rent (including the estimated cost of utilities [heat, hot water, and electric]) shall not exceed 30% of the income for a low/moderate-income household.
Administration and establishment of Affordable Housing Review Department. The Town Board may designate such additional person(s), authorities and procedures as necessary to administer and monitor compliance with the provisions of this article. The Town Board may serve as, establish or designate an administrative department or board to serve as an Affordable Housing Review Department. The Town Board, or, if established, the Affordable Housing Review Department ("Department") shall have the following responsibilities:
The Department shall be responsible for the administration of affordable housing units pursuant to the provisions of this article.
Prior to the initial offering of each affordable housing unit, the Department shall notify the owner or manager of each development containing affordable housing units as to the price and income eligibility requirements for each unit.
The owner and/or manager, as appropriate, shall annually certify to the satisfaction of the Department that the requisite percentage of affordable housing units have been assigned to low/moderate-income households and that any new tenants of affordable housing units meet the income guidelines in effect when the new tenants take occupancy. Annual certification shall include the address of the affordable housing units, the name of the occupant, and the occupant(s)' tax returns and signature(s).
The Department shall promulgate and maintain information and documentation relative to all affordable housing units; the number thereof available for sale or lease at all times; the sale price and monthly rent; and the names and addresses of eligible low/moderate-income households to purchase or lease same, together with a priority list of such households. The Department shall maintain such other records and documents as shall be required to properly administer the provisions of this article.
Whenever the Building Inspector shall receive an application for and/or issue a building permit, a certificate of occupancy or any other permit or authorization affecting an affordable housing unit, a copy thereof shall be filed with the Department.
The sale or lease of affordable units must meet the guidelines established by the Town Board. These guidelines shall be reviewed on an annual basis, and address the sales price and/or lease amounts for affordable housing units. The Department shall administer the guidelines, shall review the qualification of potential buyers or lessees, and shall approve each proposed sale or lease of an affordable housing unit.
Any covenant, restriction or other encumbrance to be placed on an affordable housing unit must be approved by the Department first.
No lease term for an affordable housing unit shall exceed two years. Notwithstanding this restriction, a lessee still eligible to rent an affordable housing unit may renew a lease term. If a household's aggregate annual income increases beyond the maximum to allow eligibility for the affordable housing unit, the household may continue to occupy that rental unit, provided that the monthly rental payment (including estimated utilities) shall be increased so as to constitute 30% of the household's income. If the household chooses not to execute a lease at the adjusted rent within a reasonable time allotted therefor, the household may continue to occupy the unit for up to one year after the expiration of its current lease.
Any applicant for an affordable housing unit aggrieved by a determination by the Department shall have the right to appeal such determination to the Town Board.
Resale: calculation of permissible resale price.
Affordable housing units for low/moderate-income households may be resold only to eligible low/moderate-income households of substantially similar size for the purposes of calculating aggregate annual income and subject to Town Board approval.
The owner of an affordable housing unit shall notify the Department of the intent to sell prior to contact with any purchaser.
The maximum resale price may not exceed the purchase price plus the cost of permanent fixed improvements, adjusted for the increase in the consumer price index during the period of ownership of the affordable housing unit and such improvements plus reasonable and necessary resale expenses. Notwithstanding the foregoing, in no case shall the resale price exceed the income restrictions for low/moderate-income households.
Tax assessment. The Town Assessor shall consider the limited sale value of affordable housing units in determining the appropriate assessment on such units.
Applicability of other Code provisions. All of the provisions of the Code of the Town of East Fishkill not inconsistent or in conflict with the provisions of this section shall be applicable to affordable housing. Without limiting the foregoing, the provisions of the Environmentally Sensitive Lands Law (§ 194-14.1) shall apply to affordable housing.
Pursuant to Town Law § 261-b, the Zoning Map of the Town of East Fishkill shall be amended to contain a note in substantially the following form: "Affordable Housing Incentives, under Town Law § 261-b, are in effect for the CRD, R-3, R-2, R-1.5, and R-1 Zoning Districts. See § 194-164 of the Zoning Law."
Pursuant to Town Law § 261-b(3)(d), the Town may assess to any applicant for incentives a proportionate share of the cost of so much of the generic environmental impact statement prepared by the Town in 2002 for the laws and master plan as was attributable to the affordable housing incentives, and such charge shall be added to any site-specific charge made pursuant to the provisions of § 8-0109 of the Environmental Conservation Law. No such assessment shall be made for applicants within the CRD Zoning District providing the 10% mandated affordable housing.
Pursuant to Town Law § 261-b, project sponsors for developments including affordable housing, for which the Town has prepared a generic environmental impact statement, shall comply with all other requirements of Article 8 of the Environmental Conservation Law, including preparation of an environmental assessment form, and a supplemental environmental impact statement, if necessary.
§ 194-165 Water systems for development projects.
To ensure all current and future development projects in the Town have the necessary access to water, the following provisions shall apply to all applications pursuant Chapter 194, Zoning, and Chapter 163, Subdivision of Land, of the Town Code:
All proposed subdivisions shall demonstrate that they can meet their potable water demands with the best two wells out of service or provide an alternative redundant source with sufficient excess capacity.
Irrigation systems shall be supplied through a water line and well supply that is separate and apart from the potable system. Prior to approval of any application, an applicant must demonstrate that this separate nonpotable supply shall not negatively impact the potable supply under any conditions.
New subdivisions that request to connect to an existing municipal water system will only be approved if the existing system has enough excess capacity, as determined by the Town Engineer or a designee, to meet double the maximum day demand of the proposed development.
New subdivisions connecting to an existing municipal system will be prohibited from drawing water for irrigation from that system unless approved, in writing, by the Town Engineer or a designee. Such approval can be suspended at any time in the event of a system-wide water shortage as determined by the Town Engineer or a designee.
Existing subdivisions that draw irrigation water from municipal systems are also subject to suspension of irrigation usage in the event of system-wide water shortage as determined by the Town Engineer.
Failure to comply with enacted suspensions of irrigation usage may result in fines in an amount of $1,500 per day and/or suspension of water service.
Requests from parcels located within an existing water district for a water service connection that will also include irrigation usage will be granted if the existing water district has enough excess capacity, as determined by the Town Engineer or a designee. Each parcel will need to provide a buy-in fee to support the irrigation demand. Such approval can be suspended at any time in the event of a system-wide water shortage as determined by the Town Engineer or a designee.
§ 194-166 Installation of irrigation facilities.
[Added 5-25-2023 by L.L. No. 2-2023]
For all applications that relate to the installation of new, permanently installed irrigation facilities, regardless of whether the principal structure on the property has been built:
For all water districts, the property owner shall submit an irrigation application to the Town Engineer for the purpose of installing and/or operating an irrigation system.
The Town Engineer, or its designee, has the sole discretion to determine the availability of water for the application.
All irrigation systems shall include the ability for the Water Department to shut off the irrigation water.
All irrigation systems shall have a meter installed which shall be separate from building water usage.
All irrigation systems shall utilize a rain sensor, soil moisture sensor, and controller to program irrigation timing and usage quantity.
All irrigation systems must meet cross connection requirements, such as a double check valve or RPZ, as approved by the Town Engineer.