Fishkill Town City Zoning Code
PART 3
Enforcement and Administration
§ 150-171 General provisions.
No board, agency, officer or employee of the Town shall issue, grant or approve any permit, license, certificate or other authorization, including adjustments by the Board of Appeals, 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. Any such permit, license, certificate or other authorization issued, granted or approved in violation of the provisions of this chapter shall be null and void and of no effect without the necessity of any proceeding for revocation or nullification thereof.
§ 150-172 Enforcement agents.
This chapter shall be enforced by the Zoning Administrator and such deputy administrators as may be appointed by the Town Board.
The Zoning Administrator and any duly appointed deputy administrator shall, at reasonable times, be permitted access to any premises for the purpose of determining whether or not the provisions of this chapter or any approval made pursuant thereto, have been or are being complied with.
Desk appearance tickets.
The Building Inspector, Fire Inspector, Deputy Building Inspector, Zoning Administrator, and any duly appointed deputy administrators of the Town of Fishkill, provided that they are employees of the Town of Fishkill, are authorized, in all instances in which such officials are empowered to enforce a law or ordinance of the Town of Fishkill, to issue desk appearance tickets as defined in § 150.10 of the Criminal Procedure Law of the State of New York. Such desk appearance tickets shall be returnable within 30 days in the Town Justice Court for any violation of any provision of the Code of the Town of Fishkill under their respective jurisdictions.
The form of the desk appearance ticket issued by the Building Inspector, Fire Inspector, Deputy Building Inspector or Zoning Administrator and any duly appointed deputy administrators of the Town of Fishkill pursuant to this Subsection C shall be governed by the Criminal Procedure Law and the Uniform Justice Court Act of the State of New York. The content of such desk appearance ticket and the method of prosecution thereunder shall at all times be subject to the Criminal Procedure Law and the Uniform Justice Court Act of the State of New York.
§ 150-173 Penalties for offenses.
A violation of this Chapter is hereby declared to be an offense, punishable by a fine not exceeding $250 or imprisonment for a period not to exceed 15 days, or both, such violation to be prosecuted and such penalties collected in the manner prescribed by law or ordinance effective in the Town. Each week's continued violation shall constitute a separate, additional violation. Nothing herein contained shall in any way limit or affect the penalties, both civil and criminal, provided for in any law or ordinance enacted and in effect pursuant to § 130, Subdivisions 15 and 23, of the Town Law.
The owner or owners of any building or premises or part thereof where anything in violation of this chapter shall be placed or shall exist, and any lessee, architect, builder, contractor, agent, person or corporation employed in connection therewith and who may have assisted in the commission of any such violation, shall each be guilty of a separate offense and, upon conviction thereof, shall be fined or imprisoned as herein provided.
§ 150-174 Additional remedies.
In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is used, in violation of this chapter or any regulation made under authority conferred thereby, the Town Board or any Town officer designated by said Town Board, or the Zoning Administrator, in addition to other remedies, may institute an appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of such building, structure or land, or to prevent any illegal act, conduct, business or use in or about such premises. The Zoning Administrator shall serve notice personally or by certified mail, addressed to the premises of such violation, on the person or corporation committing or permitting the same, and if such violation does not cease within such time as the Zoning Administrator may specify and a new certificate of occupancy is not obtained, he shall institute such of the foregoing actions as may be necessary to terminate the violation. Such notice may also be served by posting on the premises.
§ 150-175 Engineering, legal, consulting and review fees.
Where the Town Board, Planning Board or the Zoning Board of Appeals uses the services of private engineers, attorneys or other consultants for purposes of engineering, scientific land use planning, environmental or legal reviews of the adequacy or substantive details of applications, or issues raised during the course of review of such applications, for special use permit approvals under Articles VIII through XII of this chapter, site plan approvals under Article XI of this chapter, subdivision approvals under Chapter 132, Subdivision of Land, of the Town Code, review of sign permit applications under § 150-43 of this chapter, use or area variances under Article XX of this chapter, applications for rezoning of parcels to accommodate site-specific land development proposals or otherwise, applications for permits to extract topsoil or natural resources under Chapter 128 of the Town Code, land development permits for the BH District, or for any other principal or ancillary land use or development permits or approvals required under the Town Code, as well as to assist in assuring or enforcing an applicant's compliance with the terms and conditions of all the aforementioned administrative and legislative permits or approvals, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs of such services. In no event shall that responsibility be greater than the actual cost to the Town of such engineering, legal or other consulting services.
[Amended 7-14-2021 by L.L. No. 3-2021]
The Town Board, Planning Board, or Zoning Board of Appeals, through or with the assistance of Town planning staff, may require advance periodic monetary deposits, to be held on account of the applicant or landowner, by the Town of Fishkill to secure the reimbursement of the Town's consultant expenses. When an initial deposit is required upon the filing of the application, that deposit shall not exceed 50% of the average cost of such services for applications of similar type, size and complexity based upon the Town's experience over the preceding period of three years. The Town may make payments from the deposited funds, for engineering, legal or consulting services, after audit and approval by the Town Board of itemized vouchers for such services. The Town shall supply copies of such vouchers to the applicant, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultants. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the Town to pay current or anticipated vouchers, the Town shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses.
The Town Board shall review and audit all vouchers and shall approve payment only of such engineering, legal and consulting expenses as are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of applications for land use or development approvals, or for the monitoring, inspection or enforcement of permits or approvals or the conditions attached thereto. For the purpose of this review and audit, a fee shall be reasonable in amount if it bears a reasonable relationship to the average charge by engineers, attorneys or other consultants to the Town for services performed in connection with similar applications and, in this regard, the Town Board may take into consideration the complexity both legal and physical of the project proposed, including the size, type, and number of buildings to be constructed, the amount of time to complete the project, the topography of the land on which such project is located, soil conditions, surface water, drainage conditions, the nature and extent of highways, drainage facilities, utilities or parks to be constructed and special conditions or considerations as the Town Board may deem relevant. A fee or part thereof is necessarily incurred if it was charged by the engineer, attorney, or consultant for a service which was rendered in order to protect or promote the health, safety, or other vital interests of the residents of the Town, protect public or private property from damage from uncontrolled surface water runoff and other environmental factors, assure the proper and timely construction of highways, drainage facilities, utilities and parks, protect the legal interests of the Town including receipt by the Town of good and proper title to dedicated highways and other facilities and the avoidance of claims and liability and such other interests as the Town Board may deem relevant.
The owner(s) of the subject real property, if different from the applicant, shall be jointly and severally responsible to reimburse the Town of Fishkill for funds expended to compensate for services rendered to the Town under this section by private engineers, attorneys or other consultants. In order for a land use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal and other consulting fees incurred by the Town. In the event of failure to reimburse the Town for such fees, the following shall apply:
The Town may seek recovery of unreimbursed engineering, legal and consulting fees by action venued in a court of appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Town in prosecuting such action.
Alternatively, and at the sole discretion of the Town, a default in reimbursement of such engineering, legal and consulting fees expended by the Town shall be remedied by charging such sums against the real property which is the subject of the land development application, by adding that charge to, and making it a part of, the next annual real property tax assessment roll of the Town. Such charges shall be levied and collected at the same time and in the same manner as Town-assessed taxes and shall be paid to the Town Comptroller, to be applied in reimbursing the fund from which the costs were defrayed for the engineering, legal and consulting fees. Prior to charging such assessments, the owners of the real property shall be provided written notice to their last known address of record, by certified mail, return receipt requested, of an opportunity to be heard and object before the Town Board to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing.
§ 150-178 Establishment.
The Zoning Board of Appeals is hereby established in accordance with the provisions of the Town Law.
Alternate members.
The Town Board may appoint up to three alternate members, with each such position having a term of one year, for purposes of substituting for a member(s) in the event such member(s) is absent or unable to participate because of a conflict of interest. All provisions relating to members of zoning boards of appeals, including training, continuing education, attendance and compensation, apply to alternate members.
The Chairman of the Zoning Board of Appeals shall determine when an alternate member shall substitute for a member on any particular application or matter before the Board. Once designated, the alternate member shall possess all the powers and responsibilities of the member being substituted for to make determinations. The minutes of the Zoning Board of Appeals shall reflect the meeting at which the substitution is made.
§ 150-179 Powers and duties.
The Zoning Board of Appeals shall have the powers and duties prescribed by the Town Law and this chapter, including the following:
Appeals. to hear and decide appeals from and review any order, requirement, decision, and determination made by the Building Inspector or Zoning Administrator, or their respective deputies under this chapter (but no other official or board of the Town), which appeals may be taken by any person aggrieved or by any officer, department or board of the Town of Fishkill.
Use variances.
The Zoning Board of Appeals, upon appeal from the decision or determination of the Zoning Administrator, shall have the power to grant use variances authorizing a use of land which otherwise would not be allowed or would be prohibited by the terms of this chapter.
No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that the applicable regulations and restrictions imposed by this chapter have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Board of Appeals compliance with each of the following criteria:
That under the applicable regulations and restrictions imposed by this chapter, the applicant is deprived of substantial economic use and benefit from the property in question, which deprivation must be established 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 district or neighborhood.
That the alleged hardship has not been self-created.
The Board of Appeals, in the granting of a use variance, shall grant the minimum variance that is deemed 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, upon appeal from the decision or determination of the Zoning Administrator, shall have the power to grant area variances from the dimensional or physical requirements of this chapter.
In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the area 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 of Appeals shall also consider each of the following factors:
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 other method feasible for the applicant to pursue, other than an area variance.
Whether the requested area variance is substantial.
Whether the proposed area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or zoning district.
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 an area variance, 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.
Interpretation. The Zoning Board of Appeals shall, upon appeal from a decision by an administrative official, decide any question involving the interpretation of any provision of this chapter.
Referral to Planning Board. The Zoning Board of Appeals shall refer to the Planning Board applications for use variances and may refer to the Planning Board any other pertinent matters for review and recommendations. The Zoning Board of Appeals shall defer any decision thereon for a period of not more than 30 days pending a report from the Planning Board. Upon failure to submit such report, the Planning Board shall be deemed to have waived any rights concerning the matter being referred.
Training requirements. The State of New York has recognized the importance of training for members of the Zoning Board of Appeals in § 267 of the Town Law.
Each member of the Zoning Board of Appeals shall be required to attend a minimum of three hours of training relevant to the responsibilities of the Board within one year of appointment to such Board, and a minimum of three hours of additional training in each calendar year succeeding the year of appointment. Prospective Board members shall be advised of these requirements.
Noncompliance with the Town's minimum requirements for training shall be a proper cause for removal from office pursuant to Town Law § 267, Subdivision 9.
The costs of training shall be a Town charge, and members of the Zoning Board of Appeals shall be reimbursed for the cost of the training, provided such training and attendant costs have been approved in advance by the Town Board.
Approved training courses. Training sessions which relate to the duties of members of the Zoning Board of Appeals may include programs offered by the New York Department of State, the New York State Association of Towns, the New York State Department of Environmental Conservation, the Dutchess County or Westchester County Planning Federations or other appropriate entities. The Town Board, after consultation with the Chairperson of the Zoning Board of Appeals, may annually designate training courses which will meet the Town's training requirements.
Notwithstanding the foregoing, the failure of a member of the Zoning Board of Appeals to obtain the required training shall not, absent Town Board action, affect that member's appointment to serve on the Board, to entertain and vote on applications or the validity of that member's acts as a Board member.
§ 150-180 Procedures.
In its quasi-judicial role, the Zoning Board of Appeals shall act in strict accordance with the procedures specified by the Town Law and this chapter.
Meetings. Meetings shall be held at the call of the Chairman or at such other times as the Zoning Board of Appeals may determine. A quorum shall consist of a majority of the members. A concurring vote of a majority of the members of the Board shall be necessary to reverse a decision of the Building Inspector or the Zoning Administrator or to authorize a variance. A favorable vote of a majority plus one shall also be required if the action taken by the Zoning Board of Appeals is contrary to an advisory recommendation received from the Dutchess County Department of Planning under the provisions of § 239-m of the General Municipal Law. The Board shall keep accurate minutes of its proceedings, documenting fully all findings and showing the vote of each member upon each question. All meetings and deliberations of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law.
Application and fee. All appeals and applications made to the Board shall be in writing, submitted in triplicate on forms prescribed by the Board within 60 calendar days of the filing in the Town Clerk's office of any action appealed from, and shall be accompanied by the applicable fee in accordance with the fee schedule annually reviewed and established by the Town Board. Every appeal or application shall refer to the specific provision of this chapter that is involved and shall precisely set forth either the interpretation that is claimed or the details of the variance that is applied for and the ground on which it is claimed that such variance should be granted. Each application shall also comply with Article 8 of the Environmental Conservation Law (SEQRA) and 6 NYCRR 617. In addition, any application for a property connected to the municipal sewer system shall include a fully executed current certificate of sewer compliance.
Public notice and hearing. A public hearing shall be conducted in conformance with the requirements of Chapter 114 of the Town of Fishkill Code. Notice of such public hearing shall be posted, published and mailed as required by Chapter 114 before said hearing is held. The applicant for the variance shall either appear in person or be represented by an agent at said hearing. Any other interested party may appear at such public hearing in person, by attorney or other agent or submit comments, in writing, for receipt prior to the public hearing.
[Amended 4-3-2019 by L.L. No. 1-2019]
Proof of compliance with the notification procedures of Chapter 114 shall be certified to by the Secretary or other designated Town employee. The Town shall charge the applicant either a flat rate or a stated amount per notice for satisfying this requirement.
Provided that there has been substantial compliance with this provision, the failure to give notice in exact conformance herewith shall not be deemed to invalidate an action taken by the Board of Appeals in either granting or denying an appeal for a variance from a specific provision of this chapter.
Referral. A full statement of any appeal that meets the specific referral requirements of §§ 239-l and 239-m of the General Municipal Law shall also be referred prior to the public hearing to the Dutchess County Department of Planning for its review. No action shall be taken by the Zoning Board of Appeals on such appeal until an advisory recommendation has been received from said County Planning Department or 30 calendar days have elapsed since the Planning Department received such full statement.
Decisions. Every decision of the Zoning Board of Appeals on an appeal or request shall be made within 62 calendar days of the close of the hearing by the Board, and shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and contain a full record of the findings on which the decision is based, including record of compliance with the applicable provisions of SEQRA, Article 8 of the Environmental Conservation Law, and 6 NYCRR 617. Every decision shall be by resolution of the Board, with such decision being filed in the office of the Town Clerk within five business days thereof. The Board shall also notify the Zoning Administrator, the Building Inspector, the Secretary of the Planning Board and any affected municipality given notice of hearing of its decision in each case. If applicable, a report on the action shall also be filed with the Dutchess County Department of Planning.
Attachment of conditions. The Zoning Board of Appeals shall in the granting of both use 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 or the period of time such variance shall be in effect. 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.
Expiration of approval. Unless construction or use is diligently commenced within one calendar year from the date of the granting of a variance, such variance shall become null and void without further hearing or action by the Zoning Board of Appeals.
§ 150-181 Effect of appeal.
Unless the Zoning Administrator or the Building Inspector finds there to be an imminent threat to either life or property, an appeal stays all proceedings in furtherance of the action which is the subject of the appeal.
§ 150-182 Relief from decisions.
Any person or persons jointly or severally aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court of the State of New York for relief through a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York. Such proceeding shall be governed by the specific provisions of Article 78, except that the action must be initiated as therein provided within 30 calendar days after the filing of the Board's decision in the office of the Town Clerk.
§ 150-186 General requirements.
No building or structure shall be erected, constructed, enlarged, structurally altered or moved until a permit therefor has been issued by the Building Inspector pursuant to Chapter 50.
§ 150-186.1 Sprinkler systems.
[Added 7-14-2021 by L.L. No. 3-2021]
Prior to issuance of a building permit, each builder shall submit two sets of proposed plans to the Building Inspector depicting the fire sprinkler system. These plans must be signed and sealed by a licensed New York State professional engineer, NICET (Level 3 or above) or a licensed New York State fire protection engineer.
For any existing building, structure or occupancy, except a one- or two-family residence, which does not contain a sprinkler system conforming to NFPA standards where the total floor area is increased by 50% or more or for which the cost of any alterations, additions or repairs made within a six-month period exceeds 50% of the cost of replacement of the building at the beginning of that six-month period or where the use is converted to an A occupancy, as defined by the Uniform Code, and NFPA, plans shall be submitted in accordance with § 150-186.1B and a fire sprinkler system shall be installed.
No certificate of occupancy shall be issued for occupancy or use of any residential building, structure or portion thereof required to have a fire sprinkler system unless such system is installed, inspected, tested, and approved in accordance with NFPA standards.
§ 150-186.2 Plumbing and electrical licenses required.
[Added 7-14-2021 by L.L. No. 3-2021]
In addition to the provisions of Code Chapter 50, regarding building construction, all new commercial construction of plumbing and electrical systems shall be performed by plumbers and electricians licensed in the State of New York. Alternatively, such construction shall be supervised, inspected, and certified by plumbers and electricians licensed in the State of New York.
§ 150-187 Inspection.
The Building Inspector shall, at reasonable times, be permitted access to premises and buildings erected or in the course of erection, for the purpose of determining whether or not the provisions of this chapter or any approval made pursuant thereto have been or are being complied with.
§ 150-191 General requirements.
It shall be unlawful for an owner to use or permit the use of any building or premises or part thereof hereafter created, erected, changed, converted or enlarged, wholly or partly, in its use or structure, until a certificate of occupancy has been issued by the Building Inspector in accordance with Chapter 50.
§ 150-192 Existing structures.
The Building Inspector shall maintain a record of all certificates, and copies shall be furnished upon request to any person having a proprietary interest in the building affected. Upon written request from the owner and on payment by him to the Town of the appropriate fee from the current fee schedule, the Building Inspector shall issue a certificate of occupancy for any building or premises existing at the time of enactment of this chapter, certifying, after inspection, the extent and kind of use or disposition of the building or premises and whether such use or disposition of the building or premises conforms to the provisions of this chapter.
§ 150-196 Authority to amend.
The Town Board may, from time to time, on its own motion, on petition or on recommendation of the Planning Board or Zoning Board of Appeals, amend, supplement or repeal the regulations and provisions of this Chapter in the manner provided by § 264 of the Town Law.